Anintroduction to English sentencing

The appeal takes the form of a complete rehearing of the case, before a circuit judge or recorder and two laymagistrates, and the Crown Court has the power to pass any sentence which the

CHAPTER 1

An introduction to English sentencing

1.1 Courts and crimes

Although some common law crimes remain, most of the offences in English criminallaw were created by statute and have a statutory maximum penalty For the purposes

of trial, offences were divided into three categories by the Criminal Law Act 1977 –offences triable only on indictment, offences triable only summarily, and offencestriable either way The most serious offences (e.g murder, rape) are triable only onindictment, at the Crown Court A large mass of less serious offences is triable onlysummarily, in magistrates’ courts The middle category of offences triable eitherway comprises most burglaries, thefts and deceptions The first question in thesecases concerns the defendant’s intended plea: if the defendant indicates a plea ofguilty, the magistrates must assume jurisdiction and proceed to sentence, unlessthey decide that their sentencing powers are insufficient If the intended plea is notguilty, the defendant will be tried at a magistrates’ court unless either the magistratesdirect or the defendant elects that the case be tried at the Crown Court

The Crown Court sits with a judge and jury There are three levels of CrownCourt centre: first-tier centres, where both civil and criminal cases are tried andwhere High Court judges and circuit judges preside; second-tier centres, whereHigh Court judges or circuit judges preside but only deal with criminal cases; andthird-tier centres, where circuit judges or recorders deal with criminal cases, beingmostly offences triable either way The types of criminal offence are divided intofour classes, according to their gravity, and some can only be tried by a High Courtjudge, whereas others can be tried by circuit judges or recorders In total, there areover 1,000 Crown Court sentencers Circuit judges are full-time judges, althoughthey may divide their time between civil and criminal work Recorders and assistantrecorders are part-time judges, whose main occupations are barristers, solicitors or(in a few instances) academics; most full-time judges start their judicial careers inthis way Appeals against sentence from the Crown Court go to the Court of Appealand, if there is no point of law involved, the appeal requires the court’s leave if it is

to be heard Applications for leave are dealt with by individual High Court judges.Magistrates’ courts deal with the least serious criminal offences There are around30,000 lay magistrates in England and Wales, divided into local benches, and a

1

2 An introduction to English sentencing

court normally consists of three magistrates There are also full-time and time District Judges (Magistrates’ Courts) (DJMC), formerly known as stipendiarymagistrates, whose numbers have grown in recent years to over 200 A DJMCmust be a barrister or solicitor of at least ten years’ standing, and he or she sitsalone – usually dealing with the longer or more complicated summary cases Thepowers of magistrates’ courts are limited to imposing a maximum of six months’imprisonment in respect of one offence (or a total of 12 months for two or moreoffences); these maxima are to be raised, when s 154 of the Criminal Justice Act

part-2003 is brought into force, to 12 months for a single offence and 65 weeks for two ormore offences The maximum fine or compensation order that may be imposed by

a magistrates’ court is usually £5,000 Magistrates may, having heard the evidence

in a case, commit it to the Crown Court for sentence, if they form the view that theoffence was so serious that greater punishment should be inflicted than they havepower to impose As mentioned above, a defendant who indicates an intention toplead guilty to an either-way offence should be sentenced by the magistrates unlessthey decide that their powers are insufficient, in which case they should commit tothe Crown Court for sentence A person who has been sentenced in a magistrates’court may appeal against sentence to the Crown Court The appeal takes the form

of a complete rehearing of the case, before a circuit judge or recorder and two laymagistrates, and the Crown Court has the power to pass any sentence which themagistrates’ court could have imposed, even if that sentence is more severe than theone they did in fact impose.1

Summary offences are little discussed in this book, although there are frequentreferences to sentencing in magistrates’ courts (which also deal with many ‘triable-either-way’ offences) Most of the statistics quoted in part3of this chapter refer to

‘indictable offences’, which include those triable on indictment and those either-way’, whether tried in a magistrates’ court or at the Crown Court

‘triable-1.2 The available sentences

Recent years have seen several major statutes bringing change to the sentencingstructure, and three of them are particularly important for present purposes Thefirst is the Criminal Justice Act 1991, which was the first major attempt for over

40 years to establish a coherent sentencing structure After a series of further statutes

in the 1990s, Parliament consolidated sentencing law in the Powers of CriminalCourts (Sentencing) (PCCS) Act 2000 This consolidation was a wonderful idea,since it promised the great convenience of bringing the various powers together inone place Sadly, the statute had already been overtaken by new provisions by thetime it came into force, and after three years large parts of it were replaced by thenow principal statute, the Criminal Justice Act 2003

1 See Sprack ( 2004 ) for fuller details of these matters.

1.2 The available sentences 3

This part of the chapter gives a preliminary sketch of the courts’ sentencingpowers, referring also to the different sentences available in relation to young adultoffenders (aged 18–21) and to juveniles Most of these sentencing powers are dis-cussed in detail in later chapters, and in part 4 of this chapter we examine the reasonswhy only a small proportion of the crimes committed in any one year result in anoffender being sentenced in court

1.2.1 Sentences for adult offenders

A court’s duty in all cases involving injury, death, loss or damage is to consider

making a compensation order in favour of the victim or, in a case of death, the

victim’s family This forms part of a policy of increasing recognition of the needs,wishes and rights of the victims of crime A court has a duty to give reasons fornot making an order in a case where it has the power to do so The provisionsgoverning compensation orders are to be found in ss 130–134 of the PCCS Act

2000 One important restriction is that the court should take account of the means

of the offender when deciding whether to make an order and, if so deciding, forwhat amount The consequence is that some victims whose offenders are impe-cunious will receive nothing from this source, and that victims in cases where anorder is made may receive compensation for only part of their loss.2In 2002, overhalf of offenders convicted at magistrates’ courts of indictable offences of crimi-nal damage were ordered to pay compensation; as for those convicted of offences

of violence, 33 per cent in the magistrates’ courts and 17 per cent in the CrownCourt were subjected to compensation orders A compensation order will usually

be made as well as another order, but it may be made as the sole order against anoffender

The most lenient course which an English court can take after conviction is to

order an absolute discharge The power is governed by s 12 and Schedule 1 of the

PCCS Act 2000 A conviction followed by an absolute discharge does not count

as such for most future purposes Formally, the court must be satisfied that it is

‘inexpedient to inflict punishment’ In practice, the power is used in fewer than

1 per cent of cases, and is generally reserved for instances where there is very littlemoral guilt in the offence

The power to grant a conditional discharge is also to be found in ss 12–15 and

Schedule 1 of the PCCS Act 2000, and once again the conviction does not count

as such for most future purposes The condition is that the offender must commit

no offence within a period, of not more than three years, specified by the court Ifthe offender is convicted of an offence committed during that period, then he orshe is liable to be sentenced for the original offence as well Thus, the conditionaldischarge carries a threat of future punishment, as does also the power to ‘bind

2 Victims of crimes of violence also have the possibility of applying to the Criminal Injuries Compensation Scheme: see below, ch 10.4

4 An introduction to English sentencing

over’ an offender to keep the peace and to be of good behaviour – in effect, a kind

of suspended fine which some courts tend to use more frequently than others.3Conditional discharges continue to be used in substantial numbers of cases: of adultindictable offenders dealt with in 2002, some 14 per cent of males and 24 per cent

of females received a discharge from the court, and almost all of these would beconditional discharges

The fine remains the most used penal measure in English courts, largely because

of its widespread use for summary offences Its proportionate use for indictableoffences has declined, to some 26 per cent of adult male indictable offences in 2002.Maximum fines are usually unlimited for indictable offences tried in the CrownCourt, but in magistrates’ courts the maximum fines have been banded in fivelevels The leading principle (in s 164 of the Criminal Justice Act 2003) is thatthe fine should reflect the seriousness of the offence and the offender’s ability topay; and a court should give priority to a compensation order over a fine wherethe offender has limited financial resources and appears unable to pay both Theuse of imprisonment for non-payment of fines has declined in the last decade, asalternatives such as community service have been introduced, but some offendersare still committed to prison for non-payment, even though the original offencewas not thought to merit custody

The community sentence has been changed in major ways by the Criminal Justice

Act 2003 In place of the plethora of different sentences hitherto available (e.g.community punishment, curfew orders, drug treatment and testing orders, and soforth), the Act introduces a new generic community sentence – the idea being thatthis will bring to courts both flexibility and (if they follow the guidelines) consis-tency Section 148 of the 2003 Act states that a court must not pass a communitysentence unless satisfied that the seriousness of the offence(s) is sufficient to warrantsuch a sentence Having reached this decision, the court must then select the require-ment(s) which (i) are most suitable for the offender and (ii) impose restrictions onthe offender which are commensurate with the seriousness of the offence The list

of requirements largely corresponds to the separate orders available previously, and

is as follows (for offenders aged 18 or over)

3 This power, deriving from the common law and the Justice of the Peace Act 1391, was reviewed by the Law Commission in 1994 and by the Home Office in 2003: see ch 10.3 below.

1.2 The available sentences 5

Further discussion of the new order in Chapter 10 below will examine theprospects for greater consistency in the application of community sentences andfor greater effectiveness in reducing reoffending

Next in ascending order of severity is imprisonment Before imposing a custodial

sentence, the court must be satisfied, according to s 152(2), that the offence was

‘so serious that neither a fine nor a community sentence can be justified’, a formulathat requires the court to dismiss all lesser alternatives before resorting to custody

If it decides on custody, s 153(2) states that the sentence should be for the shortestterm ‘commensurate with the seriousness of the offence’ In determining the length

of any custodial sentence, courts are bound to apply any relevant guidelines, and

to take due account of aggravating and mitigating factors (see Chapter5), and ofprevious convictions (see Chapter6)

When the court has decided that a sentence of imprisonment is justified and hasdecided on its length, it may still have the choice between a suspended sentence,intermittent custody and immediate prison This applies where the court is minded

to impose a sentence of less than one year If it decides that there are grounds for pending, it may suspend any sentence of between 28 and 51 weeks for a period of up

sus-to two years (s 189 of the 2003 Act), during which time it may order the offender sus-tocomply with one or more requirements taken from the list available for communitysentences (above) Non-compliance may result in return to court and the activation

of the whole or part of the prison sentence Alternatively, the court may take theview that intermittent custody is more appropriate, the period of between 28 and

51 weeks being converted into between 14 and 90 custodial days plus release onlicence in the intermediate periods – see s 183 of the 2003 Act If the court believesthat neither a suspended sentence nor intermittent custody is appropriate in thecircumstances, and that a custodial term of under 12 months is proper, it will beable to impose a term of ‘custody plus’ in accordance with ss 181–182 of the 2003Act, when this is brought into force (probably autumn 2006) Until then, ordinarysentences of imprisonment remain available The new form of sentence is designed

to ensure that the use of imprisonment in this range includes a short period in prisonfollowed by supervised release There must first be a custodial period, of between

2 and 13 weeks as specified by the court; then there must be a period under vision of at least 26 weeks, for which the court may impose one or more require-ments from a list of eight of those available for community sentences It remains to

super-be seen what effects this new framework for custodial sentences under 12 monthswill have – on sentencing practice, on reducing reoffending, and on the prisonpopulation

6 An introduction to English sentencing

Standing in contrast to the general injunction to courts to impose the shortestproportionate custodial term (in s 153(2)) are a small number of other provisions,usually justified on public protection grounds Section 287 introduces a minimumsentence of five years’ imprisonment for various offences of possessing firearms.This joins the minimum sentence of seven years for the third offence of traffickingclass A drugs (s 110 of the PCCS Act 2000) and three years for the third domesticburglary (s 111 of the PCCS Act 2000) The 2003 Act also provides for severerforms of custodial sentence for dangerous offenders who are thought to present asignificant risk of serious harm to members of the public These sentences includelife imprisonment, indefinite custody for public protection or (for those convicted

of violent or sexual offences with maximum sentences between 2 and 10 years)extended sentences (see Chapter6)

Both the use of custodial sentences and their average length have increased nificantly in recent years: by 2002, some 30 per cent of male indictable offendersaged 21 or over and some 17 per cent of females received immediate imprisonment,compared with 18 per cent and 6 per cent respectively in 1992 The actual mean-ing of custodial sentences depends on the operation of the system of early releaseunder the Criminal Justice Act 2003 In broad terms, all prisoners are released afterserving half their sentence, but are then on licence and subject to recall at anytime until the expiry of the full sentence For some offenders serving four years orlonger this means release at an earlier point than before; but for all prisoners serving

sig-12 months or longer the impact of the sentence endures longer, since the licenceconditions remain in force until the end of the nominal sentence (and not until thethree-quarters point, as before) For those serving extended sentences the system

is slightly different, in that they are not entitled to release after serving half theirsentence; release thereafter is at the discretion of the Parole Board.4

It will be evident that the sentences available under the 2003 Act are, broadly,graduated in terms of severity The least onerous are absolute and conditionaldischarges; on the next level are fines (which may occasionally rise almost to thelevel of custody); slightly higher and partly overlapping with fines is the communitysentence, only to be imposed if the offence is ‘serious enough’; and at the highestlevel come custodial sentences, usually requiring the court to be satisfied that neither

a fine nor a community sentence could be justified and that imprisonment wastherefore required

There is a whole list of ancillary and/or preventive orders which may be made bythe courts in appropriate cases These range from orders for deportation, restitutionorders, and disqualification from driving, to the more recent flush of preventiveorders – notably, anti-social behaviour orders (ASBOs), exclusion from premises,exclusion from football grounds, and so on In some circumstances the court isbound, or almost bound, to make an order – such as disqualification from workingwith children In other cases, such as drug trafficking, a court is bound to follow the

4 For further details see ch 9.5 below.

1.2 The available sentences 7

statutory procedure towards making an order for the confiscation of the offender’sassets under the Proceeds of Crime Act 2002 Many of these ancillary orders arediscussed in Chapter11

1.2.2 Sentences for young offenders

Sentencing powers regarding offenders aged under 21 fall broadly into two groups –first, offenders aged 18, 19 or 20, who are termed ‘young adults’ and dealt with inadult courts; and then offenders aged 10–17 inclusive, who are dealt with chiefly inthe youth court

The structure of sentencing for young adults is largely the same as that foradults, although young adults sent to custody have usually been placed in differentestablishments from adult prisoners Otherwise, sentencing powers are fairly similar

to those for adults, except that the attendance centre order is available only for those

aged up to 25, as noted above Attendance centres operate on Saturday afternoonsand require offenders to participate in demanding (and usually physical) activities.The maximum order is 36 hours

For young defendants under 18 both the procedure and the sentencing powersdiffer considerably Their cases are dealt with in youth courts, except when there

is a charge of a particularly grave crime Very young children charged with der, manslaughter and some other serious offences are tried in the Crown Court.However, where the defendants are as young as 11 or 12, special efforts must bemade to ensure that the defendants can follow and participate in the trial: a PracticeDirection on the appropriate procedures for such cases was issued in 2000,5but

mur-a recent decision of the Europemur-an Court of Hummur-an Rights indicmur-ates thmur-at furtherchanges of procedure will need to be made.6

However, cases of that kind are few In practice, as we shall see in part1.4below,most offenders of this age are dealt with by a reprimand or final warning underthe Crime and Disorder Act 1998, described more fully in Chapter12 Section 37

of the 1998 Act declares that ‘the principal aim of the youth justice system [is] toprevent offending by children and young persons’, but this benevolent aim must beread in the light of the custody rate for young offenders – in 2002, 13 per cent forboys and 7 per cent for girls For those who are prosecuted in court for the first timeand plead guilty, the court is under a statutory duty to make a referral order under

s 16 of the PCCS Act 2000 The consequence of the referral order, described morefully in Chapter12, part12.1.2, is the drawing up of a ‘youth offender contract’requiring certain commitments In other cases the youth court has the same range

of powers as do the ordinary courts when dealing with young adults, with twonoticeable exceptions The first is that when a youth court is dealing with a childunder 16, it must require the attendance of the child’s parents unless this would be

5 Practice Direction: Young Defendants in the Crown Court [2000] 2 All ER 284, applying the decision

in V and T v United Kingdom (2000) 30 EHRR 121.

6 SC v United Kingdom [2004] Crim LR 130.

8 An introduction to English sentencing

unreasonable, and it must bind over the parents to exercise control over the childunless it give reasons for not doing so The second difference concerns custodialsentences, which have been relatively rare for young offenders Details of the laware given in Chapter12, but essentially a ‘detention and training order’ may only bemade in certain standard lengths, as consolidated in ss 100–107 of the PCCS Act

2000 (i.e 4, 6, 8, 10, 12, 18 or 24 months, and not intermediate lengths)

1.3 The general statistical background

Some 5.9 million ‘notifiable offences’ (excluding minor crimes) were recorded bythe police in 2003, showing a slight rise from 2002 to set against the overall decline inthe volume of crime as measured by the British Crime Survey – down to 11.7 millioncrimes against households and individuals in 2003, compared with 12.3 million in

2002 Table1shows how the volume of crime as measured by the British CrimeSurvey was considerably higher in 1991 than it is in the early years of the twenty-first century, whereas the number of crimes recorded by the police has continued

to grow steadily since 1991, although the major acceleration in the recorded crimerate came in the preceding decades These differences between recorded crimes andthe crime rate estimated by the British Crime Survey are discussed in section1.4

below

Table1also shows that the detection rate – proportion of recorded offences

‘cleared up’ by the police – declined substantially in the 1970s and 1980s, and inrecent years has been hovering around 23 per cent, approximately half the rate

of 1961 This does not imply that in all these cases a conviction was obtained or

a formal caution administered, for the ‘detected’ category also includes offencestraced to children under 10, cases where the victim is unable to give evidence,and offences ‘taken into consideration’ on other charges The detection rate hasalways varied from offence to offence, however Over three-quarters of offences

of violence and sexual offences are usually cleared up, largely because the victimcan usually identify the offender, who was often known to him or her anyway Incontrast, the proportion of burglaries and robberies cleared up remains at less thanone-quarter

Table1shows that, of the 1.4 million non-minor offences cleared up in 2003,some 486,000 resulted in either a finding of guilt for an indictable offence or a policecaution for an indictable offence The figure includes some 151,000 formal cautions,

of which the majority were reprimands or warnings administered to offenders under

18 Some 335,000 persons were found guilty of indictable offences by the courts in

2003, and it may seem strange that so many fewer people were convicted in 2003than in 1981, when the figure was 465,000 (see Table1) One reason why this statisticappears strange is the wide disparity in the numbers of crimes recorded in the twoyears – 2.8 million in 1981, compared with 5.9 million in 2003 The explanation

is to be found in a combination of factors – the decline in the detection rate from

Table 2 Flows through the criminal justice system, 2003

Crime measured by BCS (1)

11,716,000

Recorded crime (2)

5,935,000 100%

Offences detected (3)

1,394,000 23%

Charged

or summonsed

13%

Cautions 4%

Taken into consideration 2%

Other 5%

Crown Prosecution Service

receive papers from the police

for prosecution

CPS proceed

with charge

CPS discontinue the case or case unable to proceed

Defendants proceeded against at magistartes’ courts, 510,000 (4)

Number found guilty by magistrates

278,000 Number committed for trailto the Crown Court

Number sentenced by magistrates

261,000 Number sentenced by the Crown Court73,000

Custody 43,000 Other disposal 7,000

Total sentenced to custody

Sur-(2) Covers all indictable, including triable either way, offences plus a few closely associated summary offences.

(3) In the financial year 2003/04.

(4) Adjusted for shortfalls of data.

Source: Criminal Statistics 2003 Table 1.1.

1.3 The general statistical background 11

38 per cent in 1981 to 23 per cent in 2003, the increase in the use of police cautions(up from 104,000 to 151,000), and perhaps the increased discontinuance rate ofprosecutions Table2shows the progress of recorded offences through the criminaljustice system, and will be discussed in part1.4below

How do the courts use their sentencing powers? For this it is necessary to revert

to the 2002 statistics,7 and the details for the last decade are best presented inseparate tables for adult offenders, for young adults (aged 18 and under 21), andfor juveniles (aged under 18) Table4shows that for adults the use of immediateprison sentences rose from 18 per cent of all male indictable offenders in 1992 to

30 per cent in 2002; for women the rise was even steeper, from 6 per cent in 1992

to 17 per cent in 2002 The decade also saw increases in the proportionate use ofcommunity sentences, at the expense of fines For young adult offenders, Table5

shows a significant rise in the use of custody, from 15 per cent in 1992 to 26 per cent

by 2002; the proportion of community sentences remains stable, whereas fines anddischarged have declined slightly Table6gives the figures for offenders aged 10–17inclusive Community sentences have increased significantly throughout, largely atthe expense of discharges and attendance centres While the rate of custody hasincreased relatively slightly for boys, it has shown an enormous increase for girls,from 2 per cent to 7 per cent over the decade

What has been the effect of these sentencing patterns on the custodial lation? Table7shows the average daily population of prisons and young offenderinstitutions for the years 1992 to 2002 Starting from some 46,000 in 1992 (fromwhich it fell back further in 1993), there has in the following years been a steep andunprecedented rise to an annual average of over 70,000 prisoners in 2002, and to over75,000 in April 2004 and again in April 2005 – increases whose causes are discussed

popu-in some detail popu-in Chapter9below Moreover, the steep rise in the mid- and late 1990s

is attributable almost entirely to the numbers of adult sentenced prisoners; while inprevious decades the growth of the remand population was an important element

in the rise in the prison population, remand prisoners contributed hardly at all tothe recent increase The same can be said of the numbers of young male offenders

in custody, which appear to have stabilized in the last five years However, the sharprise in the female prison population (both young offenders and adults) has made asignificant overall contribution, even though female offenders still account for onlyabout 6 per cent of the prison population

This brief discussion of changes in the prison population shows how sentencingand the prisons are merely parts of a wider process of criminal justice, in whichfactors such as remand decisions by magistrates, diversion decisions by the police,prosecution decisions by the Crown Prosecution Service, and so forth, have a signif-icant role We now turn to consider the various pre-trial stages in decision-making

7 Unfortunately the Criminal Statistics series discontinued its sentencing tables in 2003, although they had appeared annually until 2002.

Table 6 Persons aged 10 to 17 sentenced for indictable offences by sex and type of sentences or order, 1992–2002

England and Wales

Community punishment

centre order

Community punishment and rehabilitation order

Curfew order Number sentenced for indictable offences (000)

(pre-viously probation order), community punishment order (pre(pre-viously community service order) and community punishment and rehabilitation order (previously combination order).

(Sentencing) Act 2000; they were implemented nationally on 1 April 2002.

Secure training order

and training order

Young offender institution

Otherwise dealt with

Total immediate custody

Total community sentences Number sentenced for indictable offences (000)

transferred to sections 90 to 92 of the Powers of Criminal Courts (Sentencing) Act 2000.

the number recorded as sentenced of about 2 per cent in 1993 for indictable offences (see paragraph 5, Appendix 2).

22 An introduction to English sentencing

1.4 The criminal process8

Sentencing is one of several stages at which decisions are taken in a criminal processthat begins with decisions such as reporting a crime or arresting a suspect, and goesthrough to decisions to release a prisoner on parole or to revoke a community order.Occasionally, in debates about prison overcrowding, it has been suggested that thatproblem is a direct result of the sentencing policies of the courts In a formal sense

it is true: the people in prison have been sent there by the courts But it is important

to consider the matter more deeply There are at least two possibilities – that thecourts have changed their approach and are sending more offenders to prison,

or that the number and/or composition of people coming before the courts havechanged and sentencers’ policies have remained unchanged The latter possibility

is much favoured by many judges and magistrates as an analysis of recent trends,notably the steep rise in the prison population,9and so we should first look into theevidence for variations of this kind Where might these variations come from? Anobvious answer might be ‘the crime rate’ As ‘the crime rate’ increases, so sentencerswill have to deal with more and more offenders If they do not alter their sentencingpractice, it follows that more offenders will be sent to prison But the answer is toosimple and too sweeping Apart from the need to scrutinize the idea of ‘the crimerate’, it is vital to examine the effect of the many other decisions to be taken betweenreporting a crime and bringing an accused person before a court The numberssentenced may reflect changes in police investigation priorities or changes in thepolicies of the Crown Prosecution Service, rather than any increase or decrease in

‘the crime rate’

How can the number of crimes committed each year be measured? The best thatthe official criminal statistics can offer is the annual total of crimes recorded by thepolice It will be recalled that the second line of figures in Table1above, ‘Offencesrecorded by the police’, shows trends in recorded crime The statistics in that tableare more representative of the crime rate than the numbers of offences which aredetected or which result in a conviction (i.e all the figures lower down Table1),but they still give only a small part of the picture The police are informed aboutcrimes mostly by victims, but not all victims report incidents to the police Of thosecrime victims who responded to the British Crime Survey and who failed to reportthe crimes to the police in 2003/04, some 72 per cent fell within the category of

‘trivial/no loss/police would not (could not) do anything’, and a further 22 per centresponded ‘private/dealt with ourselves’ Other, less frequent reasons were a fear ofreprisal or dislike of the police.10Thus, although the figures for serious offencesrecorded by the police have been the most comprehensive set of statistics publishedregularly over the decades, they are not a reliable indicator of the number of crimesbeing committed, or of fluctuations in the crime rate

8 For an extended treatment of the issues summarized in this section, see Ashworth and Redmayne ( 2005 ) and Sanders and Young ( 2000 ) For selected readings, see Padfield ( 2003 ), chs 2–6.

9 Hough et al ( 2003 ), p 30 10 Dodd et al ( 2004 ), p 43.

1.4 The criminal process 23

Criminologists have attempted to estimate the number of unreported offences(sometimes called the ‘dark figure’ of crime) by two main methods One is the self-report study, in which people are asked to divulge in confidence how many offencesthey have committed during a specified period of crime An obvious defect of thisapproach is that some people may be reticent whereas others might exaggeratetheir deeds out of bravado The second and more widely used method is to askpeople to state in confidence the number of crimes of which they have been avictim during a specified period If one then takes the results of such a study, known

as a victimization study or crime survey, and compares them with the number

of officially recorded crimes over the same period, an estimate of the proportion

of crimes unrecorded can be made This is the basis on which the British CrimeSurvey (BCS) has proceeded since 1981.11However, crime surveys are at their bestwhen dealing with crimes with identifiable victims: the BCS covers violence, sexualoffences, burglary, robbery, theft and damage It is much more difficult to surveycrimes against businesses and public authorities, although that has now been doneseparately.12 And it is particularly hard to survey offences of which people areunlikely to think of themselves as victims, such as drug offences and consensualsexual crimes

The BCS has been conducted frequently since the early 1980s, and consists ofquestions put to a large sample of citizens about crimes to which they have fallenvictim in the past year Although its scope is restricted to certain crimes, for thereasons just given, it does enable a comparison with the figures for crimes recorded

by the police for those offences It also enables comparisons of trends over time.What can be seen, from comparing the first line with the second line of figures inTable1above, is that ‘Crime as measured by the British Crime Survey’ peaked in

1991 and has been falling slowly but steadily since then On the other hand, althoughthe figures for ‘Notifiable offences recorded by the police’ also rose sharply duringthe 1980s, they have continued to rise steadily but relatively slowly since then Inother words, during the last decade the police have been recording more crimes, butmembers of the public have been suffering fewer crimes Householders questionedabout the offences of which they have been victim have been reporting fewer crimescommitted against them, but the impression created by the police figures is that thecrime rate is continuing its upward march

If we follow the details of the BCS into Table3, we see that in most categories ofoffence the number of incidents reported by householders reached its peak in 1995.Since then there has been a downward trend, which for some categories has beenenormous The ninth column of Table3shows the percentage decline from 1995 to2003/04: for vehicle thefts the decline is 51 per cent, for burglary it is 47 per cent, forcommon assault (i.e the least serious forms of assault) it is 43 per cent, for thefts ofpersonal property it is 36 per cent, and for vandalism it is 27 per cent There has been

11 The latest report is that of Dodd et al ( 2004 ).

12 The Commercial Victimization Survey in 1994, summarized in Home Office Digest 4 (1999 ), p 8.

24 An introduction to English sentencing

an overall decline in personal crimes since 1995 of some 35 per cent, and personalcrimes include all violence, robbery and thefts from the person It is evident thatfor robbery and woundings the decline has been less than for most other offences;but there is still a decline that contrasts with the considerable rise in such categories

of offence recorded by the police The BCS figures are more reliable over time sincethey have been subject to fewer changes of recording practice For example, violentcrimes recorded by the police showed an increase of no less than 12 per cent in theyear between 2002/03 and 2003/04, but it is likely that this was caused (at least partly)

by changes in recording practices.13All these statistics are particularly important,insofar as they are used by politicians and the media to support arguments aboutpenal policy The BCS shows a consistent decline in the rate at which people arebecoming victims of crime, and yet this finding tends to be downplayed in the face

of a continuing rise in the number of offences recorded by the police – even ifchanges in recording practices have a considerable influence

The importance of changes in reporting habits is apparent when one ers that around three-quarters of offences which come to the notice of the policeare reported by members of the public rather than ‘discovered’ by the police them-selves.14Moreover, these reporting habits do not merely relate to the offences againstindividuals with which the BCS is concerned Many companies learn of offences offraud or thieving committed by their employees, and deal with them by dismissing

consid-or disciplining the employee without repconsid-orting an offence As fconsid-or the offences whichthe police discover for themselves, the numbers will be affected by levels, styles andtargets of policing In general, the police are much more likely to ‘discover’ offencescommitted in public places than crimes committed in the home or in business orfinancial settings Furthermore, fluctuations in the number of recorded offences ofpossession of drugs, possession of child pornography or possession of obscene arti-cles for gain might largely reflect priorities in police deployment Thus, discovery

of many of these crimes may bear little relation to variations in the actual rate ofoffending

It is already clear, then, that the number of offences recorded by the police eachyear is a considerable under-estimate; that the number includes proportionatelymore offences against individuals and public order offences than offences by andagainst companies; and that fluctuations from year to year may reflect changes inreporting or recording practices rather than changes in the true level of crime Thenext stage in the process sees another major quantitative change We have observedthat only 23 per cent of offences recorded by the police in 2002 were detected (Table1

above, line 4) An offence is treated as ‘detected’ not only if a person is convicted

or cautioned but also if the offence is ‘taken into consideration’ by the court onconviction for another offence,15or if the offence is believed to have been committed

by a child under the age of criminal responsibility, or in a number of other caseswhere the police believe they have sufficient evidence but for some reason cannot

13 Dodd et al ( 2004 ), pp 9, 13 14 Bottomley and Coleman ( 1981 ), p 44.

15 This practice is discussed in ch 8.1 below.