Section 142 subsection 1 of the Criminal Justice Act
2003 states clear guidelines which should be taken into consideration when
sentencing offenders above the age of eighteen at the time of conviction in relation
to their offence, as well as the act not being an offence which has a fixed or
minimum sentence as explained in subsection 2, as well as any other exclusions
mentioned. Punishment will be the first aim to be addressed in this essay (Op
Cit: legislation.go.uk).
Section 142A of the Criminal Justice Act deals
specifically with offenders under the age of eighteen and it aims to achieve
the same principles as that of Section 142 of the Criminal Justice Act, apart
from the reduction of crime element. The Act also relates to Section 37
subsection 1 of the Crime and Disorder Act 1998 regarding the aims of the Youth
Justice system in the treatment of juvenile defendants, rehabilitation being
the predominant issue. The prevention of offending and reoffending is the
principle aim when sentencing minors provided the offence was not serious
requiring a mandatory sentence as listed in Section 142A subsection four of the
Criminal Justice Act 2003 or any other stipulations there in (Ibid).
Punishment for a specific crime should in theory
reflect the moral position of the common consensus of society for a specific
offence and expresses our need for retribution. It should also act as a deterrent to anyone else who would intend to
commit the crime in question. A custodial sentence should not be imposed under
Section 79 of the Powers of Criminal Courts (Sentencing) Act 2000 unless the
offense or combinations of offenses were serious enough to justify it, or if
the offense was violent or sexual in nature and the public required protection
from the individual. Custodial sentences are also given when a particular crime
may require deterrence to make an example (Op Cit: Lawteacher.net,
legislation.gov.uk). The issue as to the length of time an offender should
serve has been addressed under subsection 2 of section 153 of the Criminal
Justice Act 2003 when determining the length of a custodial sentence “the custodial
sentence must be for the shortest term (not exceeding the permitted maximum)
that in the opinion of the court is commensurate with the seriousness of the
offence, or the combination of the offence and one or more offences associated
with it.” This means that it is up to the judge on a particular day
to decide the duration of the sentence who may not share the view of others.
Between the years 2011 and 2012 around 15% of all cases that went before a
Magistrate and pleaded not guilty were acquitted, which could suggest a
readiness for Magistrates to believe police evidence, although only 27% of offenders who pleaded not guilty
were acquitted at the Crown Court, possibly suggesting that advancements in
technology and evidence collating methods could be improving, in turn helping
judges and juries prove beyond reasonable doubt that the defendant was guilty (Op
Cit: legislation.go.uk, cps.gov.uk, entencingcouncil.judiciary.gov.uk).
A number of aggravating or mitigating circumstances
will be taken into consideration when deciding a sentence. Aggravating
circumstances raise the culpability of the crime making it a more serious
offence as well as a larger sentence or fine for example; the lack of remorse
shown, the seriousness of the injury to victim, physical or psychological harm,
the victim was targeted, vulnerable (elderly, disabled or a child), the use of
a weapon, racially motivated, a repeat assault victim, the location or having a
previous record for similar offences as well as the time between them.
Mitigating circumstances may increase the chances of a lighter sentence provided
that remorse is shown. Some mitigating circumstances are; no previous or
relevant convictions, previous good character, and problems in their personal
life which have had an effect on their behaviour, was not premeditated, whether
they have a job and which type of job. If the offence was committed by someone who
was depended on such as the boss of a multimillion pound company, they may be
spared jail, although fines for indictable offences were down seven percent in
the years between 2001 and 2011 (Op Cit: thisishull.co.uk, gov.uk, cps.gov.uk).
The second aim of the sentencing guidelines of the
Criminal Justice Act 2003 is to assist in the reduction of crime. The judge
attempts to do this with a sentence in two ways; the first by acting as a
deterrent towards the individual to reoffend, and the second is to act as a
general deterrent to the rest of society to show that this will be the type of
punishment anyone will receive when committing the crime. The Criminal Justice
Act 1991 allowed for four different types of punishment for crimes; custodial
sentences, community sentences, fines and certain other types of sentences such
as a discharge or binding over, unless the offence has a fixed sentence in the
case of murder for example, or minimum sentence as explained in subsection 2 of
Section 142 of the Criminal Justice Act 2003 for offences such as murder,
robbery, rape or firearms offences. Around a third of offenders (38,000) in
2011 had fifteen or more previous convictions, which would suggest that these
individuals were career criminals and repeat offenders in a society of around
62 million people, which represents around 0.05 percent of the general population.
The one in three reoffending rate could be down to institutionalisation, soft sentencing and it could be argued that
leniency has caused a rise in reoffending rates, or the current state of the
economy could have an impact as relative poverty continues to rise as a
majority of crimes committed in 2011 were theft orientated. On the upside
according to government statistics, crime as a whole was down in this period
although counting methods have been subjected to some inquiry, and has even
been suggested they may be open to manipulation (Op Cit: sentencingcouncil.judiciary.gov.uk,
Lawteacher.net, legislation.gov.uk, gov.uk, worldbank.org, youtube.com).
A majority of sentences are found in the Power of
Criminal Courts (Sentencing) Act 2000. Whilst Magistrates are restricted in the
sentences they can impose; as of the Criminal Justice Act 2003, up to twelve
months custodial sentence for a single offense raised from six and a maximum
fine of up to £5000, The Crown Court has no limit and can impose fines of
unlimited value. One of the largest fines imposed by the Crown Court belongs to
Balfour Beatty at 7.5 million, reduced from ten million on the grounds of
pleading guilty for breaching the Health and Safety at work Act in 2000, which
cost the lives of four people and injured 102. Recently the FSA fined Union
Bank of Switzerland 160 million pounds for their part in the Libor scandal,
using Balfour Beatty as an example however, it could be said to fine was not
adequate for a multimillion pound company and could end up being cheaper to pay
in the long run rather than updating safety precautions. Balfour Beatty in 2000
turned over £2603, 000,000 with a net cash profit of £104, 000,000 and is still
reporting profits of fifty million this fiscal year (Op Cit: Sixthformlaw.info,
judiciary.gov.uk, news.bbc.uk, fsa.gov.uk, balourbeatty.com, ft.com).
A suspended sentence gives offenders a second
chance, provided that they stay out of trouble. If the Crown Court passes a
custodial sentence of between fourteen days and two years (sixth months maximum
in the Magistrates Court) the judge may chose to suspend the sentence for up to
two years if they believe that; the offender is genuinely sorry, shown remorse
or the act was highly out of character and possibly for a first offence
depending on the seriousness of the crime. A suspended a sentence is usually
attached to a community sentence order. 47,798 offenders in 2011 had their
sentence suspended, representing four per cent of offenders sentenced.
Immediate custody was imposed on eight per cent of those sentenced,
representing a total of 102,698 (Op Cit: justice.org).
Community sentences are given for the less serious
of crimes and are an attempt at combining punishment with rehabilitation, which
is the third aim of Criminal Justice Act 2003. Menial tasks like clearing
overgrown areas, picking up litter and removing graffiti may be required as
part of a community order (up to 300 hours, depending on the severity of the
crime). The orders may be combined with an array of the other requirements as
well as a fine which are aimed at rehabilitating the offender; developing
skills such as English and Maths, compulsory participation in behaviour
specific programs like anger management or drug testing, victim awareness,
prohibition from certain activities, a curfew enforced by an electronic tag,
exclusion from specific areas, a residence requirement, mental health
treatment, alcohol treatment or drug rehabilitation, these treatments require
the offenders consent, and or supervision by the local Probation service, where
offenders are required to turn up at specific times. 2011 saw 173,434 offenders
sentenced to a community sentence, which represented thirteen percent of all
offenders sentenced (Op Cit: sentencingcouncil.judiciary.gov.uk).
Protection of the public is another aspect a judge
should consider when sentencing offenders and is the fourth aim of the Criminal
Justice Act 2003 which introduced the term of “dangerous offender” and incorporated
two new custodial sentences aimed at dealing with these; an indeterminate
sentence for public protection or an extended sentence for public protection.
An indeterminate sentence for public protection is imposed when a sexual or
violent offender is perceived by the Court as being a significant risk to other
members of society, and when the offence warrants a ten year or more period
custodial sentence, offenders would be detained until the parole board
considered them safe to release and would be done so under at least a ten year
supervision period on licence which is similar to a community order were
ex-convicts are monitored for a desired period of time. An extended sentence
for public protection or determined, is
given when the custodial sentence carries a maximum of less than ten years and
more than twelve months and also enforce extended licence periods of up to
eight years for sexual offenders and up to five years for violent offenders,
giving the Courts strict guidelines for dealing with and managing dangerous
offenders. When pleading not guilty to an indictable offence, offenders deemed
to be dangerous or who have previous convictions can be remanded into custody
to await their trial (Op Cit: cps.gov.uk, legislation.gov.uk,
offendersfamilieshelpline.org).
Amendments to the 2008 Criminal Justice and
Immigration Act by way of sections thirteen to eighteen which affect both
adults and juveniles applied to sentencing; firstly by lowering the seriousness
threshold for an indeterminate sentence for public protection from ten years to
two years, and in the case of a determined sentence for public protection up to
a minimum of four years with a chance of release at the half way point. An
exception to the seriousness threshold is applied to adults only, offenders
previously convicted of serious offences such as robbery, firearm offences,
criminal intent, rape, GBH or manslaughter where eligible for the “two strike
automatic life” rule under the provision of the Powers of the Criminal Courts
(Sentencing) Act 2000, which were later repealed by the dangerous offenders
legislation in the Criminal Justice Act 2003 is now only used at a judges
discretion. The assumption that adult offenders with previous convictions for
violent or sexual crimes were to be automatically treated as dangerous by the
court no longer applied from July 14th 2008. These amendments have
given judges more discretionary powers when deciding sentences rather than
sticking to the rigid guidelines which guaranteed high prison rates,
effectively “taking the law” into the Judges hands. As crimes are often
committed out of desperation or spontaneously, offenders may deserve a second
chance depending on the circumstances of the act, this should not necessarily
apply to all offenders. The addition of changes that allow for automatic
release after serving half of a sentence with no review from a parole board
could also result in dangerous offenders being released into society unvetted (Ibid).
Other sentences which may be administered by the
Magistrates Court for the least serious offences such as a petty theft are
discharges or binding over for breaching of the peace. An absolute discharge
means that the offender is released with no further punishment with the idea
that the process of the judicial system has been a shock and punishment in its
self, however the offender still receives a criminal record. A conditional
discharge would mean that if the offender reoffended within a set amount of
time they could be sentenced for the previous crime as well as the new one.
93,033 defendants were given a discharge in 2011, representing seven percent of
offences within that year. The Justices of Peace Act 1361 gave Magistrates the
power to bind over a sentence for the offence of breaching the peace; provided
that the offenders not reoffend within a specific time period there is no
criminal record as well as a fine of typically £200. Some other sentences the
Magistrates may hand out are; confiscation orders, issuing warrants for seizure
of property, driving disqualifications, ASBO’s, football orders and a multitude
of other stipulations (Op Cit: sentencingcouncil.judiciary.gov.uk, cps.gov.uk,
sixthformlaw.info).
Reparation orders are aimed at young offenders
between the ages of ten and seventeen. The offender must either perform a
specific act in person to the victim if the victim were willing to agree to it,
or carry out work in the community that has been damaged. All reparations must
be completed within a three month period and twenty four hours is the maximum
amount of time the order may last. Typically, letters of apology, meeting to
apologise in person or in the case of community work, cleaning graffiti and
litter picking (Op Cit: justice.go.uk).
Judges must consider all of the elements contained
within Section 142 subsection 1 of the Criminal Justice Act 2003 when
sentencing an offender, using the methods set out by the Criminal Justice Act
1991. Amendments to the 2008 Criminal Justice and Immigration Act have given
judges more discretionary powers to sentence violent and sexual offenders as
they see fit, although it allows for rehabilitated ex-convicts be treated more
fairly in the case of a second serious offence, it also allows for some
potentially dangerous prisoners to be released half way through their custodial
sentences. The sentence will be aimed at punishment, as much as it is
rehabilitation in an attempt to reduce crime by imposing either; custodial
sentences in the case of indictable offences, or community sentences depending
on the seriousness of the offense and circumstance of the case, as well as
fines, discharges and a bind over order.
Refrences
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