|
The aims of sentencing
|
The purposes of sentencing are defined by
section
142
Criminal Justice Act 2003 which says that
"Any court dealing with an offender in
respect of his offence must have regard to the following purposes of
sentencing"
(these purposes do not apply to persons under 18 or where the sentence is
fixed by law minimum sentences and mental health orders)
-
the punishment
of offenders
-
the reduction of crime (including its
reduction by deterrence)
-
reformation and
rehabilitation of offenders
-
protection
-
the making of
reparation by offenders to persons affected by their offences
Modern sentencing policy reflects a combination of several or all of these
elements.
|
|
Judicial aims; retribution
-v- utilitarian |
Sentencers can look back at the offence
and apply punishment - a retribution approach - and/or look forward and
aim to impose a sentence that has a useful purpose, the utilitarian
approach.
|
|
Punishment
sometimes referred to as
Retribution. |
This element is intended to show public revulsion from the offence (this
has been a constant theme since the Report of the Royal Commission on
Capital Punishment 1953) spelt out to punish the offender for his wrong
conduct R v Blake [1962] QBD George Blake an infamous spy was given
42 year prison sentence
Lord Hilbery:
"This sentence had a threefold purpose.
It was intended to be punitive, it was deigned and calculated to deter
others, and it was meant to be a safeguard to this country."
Exam focus:
Punishment - retribution for wrongdoing, society’s revenge for the
offence. "Let the punishment fit the crime".
Based on proportionality or ‘just desserts’ it contains an element of
denunciation - society’s outrage at the offence committed
|
|
Deterrence |
Deterrent sentences (or rather a sentence with a deterrent element) are aimed at deterring not only the actual offender
from further offences but also potential offenders from breaking the law.
So, in R v Hussain (Mohammed)
[2005] CA a deterrent sentence was imposed in relation to electoral
fraud but in R v Oosthuizen [2005] CA the Court of Appeal
ruled that to impose a sentence with a deterrent element on the grounds of
prevalence of the offence there must be statistics that support the about
prevalence:
"even a judge with experience of that area should not
assume that prevalence was more marked in that area than nationally"
This particular case concerned robbery of handbags from women on the
streets of Guildford. |
|
Reformation
sometimes referred to as
"Rehabilitation" |
The importance of reformation of the
offender is shown by the growing emphasis laid upon it by much modern
legislation.
Community punishment/rehabilitation orders
are good examples of sentences designed to reform the offender.
The general restrictions on imposing
custodial sentences on young offenders are designed to keep young
offenders out of the criminal justice system until maturity.
|
|
Drug treatment orders |
In the case of an offender aged 16 or over who has a drug problem which
might respond to treatment, a court may have power to make a drug
treatment and testing order: see the
Crime and
Disorder Act 1998 s 61
|
|
Protection |
The protection of society is often the
overriding consideration, so in
R v Brewster (1980) CA a professional criminal had to be
locked up for a substantial period.
Exam focus:
Protection of the public by preventing the offender from re-offending.
|
|
Reparation |
Reparation is becoming an important objective in sentencing which can be
seen by such sentencing options as community orders.
Exam focus:
Reparation - considers the victim
when sentencing the offender. Compensation orders used to make offender
make amends to the victim
|
|
Courts are required to state which element
is being used. |
In relation to custodial sentences in particular, the court ought to
explain the practical effect of any sentence it passes, in terms which
assists the understanding of the offender, any victim and the general
public: Practice
Direction (Custodial Sentences: Explanations) [1998] (and
here)
|
|
The essence of restorative justice was
caught by Archbishop Desmond Tutu in a recent lecture |
“A criminal offence has caused a breach
in relationship and the purpose of the penal process is to heal the
breach, to restore good relationships and to redress the balance . . .
the fundamental purpose of the entire exercise is to heal”...
|
|
|
Exam focus:
Reduction of crime - this includes both deterrence and rehabilitation
Deterrence has two types - individual and general:
-
Individual
- aimed at particular offender to put him off re-offending by either a
very severe sentence
eg
custodial sentences or a fine, or by the threat of imprisonment eg
a suspended sentence or conditional discharge
-
General -
put society off committing crimes by exemplary sentences or minimum
sentences not concerned with fairness and may be harsher than the usual
tariff for the offence so can lead to injustice in particular case
eg
very severe sentences for the theft of mobile phones on the street
Rehabilitation - aims to reform the offender to stop them
re-offending. It is focused on the longer term looking at the potential of
the offender to reform. It is now accepted that custodial sentences only
have very limited rehabilitative effect |
|
Sociology and psychology -
perspectives on sentencing |
|
Symbolic or expressive function. |
All laws have a symbolic or expressive function.
We
have laws against race and sex discrimination - not purely to provide a
remedy for the victims of such discrimination, but also to convey and
underline the important message that such discrimination is wrong.
Expressing this message through the criminal law, with its potential
stigmatic consequences, emphasises the total rejection of the activity in
question. (For this reason it can be argued that certain instances of
direct discrimination should have been criminalised to make the message
'stronger'.)
|
|
Kaufmann
Walker and Marsh |
Simply declaring an activity to be criminal can, in itself, have a
symbolic effect in influencing attitudes and moral beliefs.
This point is illustrated by the research of Kaufmann (1970) who
asked a group of subjects to evaluate the morality of certain behaviour
(failing to rescue a drowning man). Some subjects were told that this
behaviour was criminal; others were told that there was no legal duty to
rescue.
The former group judged the inaction more harshly than the latter group.
Breaking the law was in itself viewed as immoral. Similarly, Walker and
Marsh (1984) discovered that subjects stated that their disapproval of
not wearing a seat belt would increase when this became an offence.
|
|
Feinberg, disavowing behaviour |
While the mere existence of criminal laws has important expressive
consequences, it is enforcement of that law and the punishment of
offenders that gives the criminal law its real 'sting'.
Through punishment society is emphatically condemning and thereby
disavowing the offender's acts.
Failure to punish, on the other hand, amounts to an endorsement or
approval of such actions. Feinberg (1965) uses a telling example:
suppose an aeroplane from nation A shoots down an aeroplane from nation B
over international waters. If nation A were to punish its pilot this would
amount to a disavowal of the pilot's action: the actions would simply be
those of a deranged pilot. But a failure to punish the pilot would amount
to an endorsement of his actions. Nation A would effectively be admitting
that it was responsible for the act and approved of it.
|
|
Socialising effect of disavowing behaviour |
Such disavowals of criminal acts have an important socialising effect in
reinforcing attitudes and social values.
They are part of the conditioning process that creates conscious and
unconscious inhibitions against committing crime. In this way the criminal
law can have the effect of strengthening the public's moral code. Every
time a person is punished for, say, theft, our underlying conviction that
theft is wrong is reinforced. The aim of punishing drunken drivers is not
simply to deter other would-be drunken drivers but to try to induce a
social climate in which it is regarded as morally unacceptable to drive
after drinking too much alcohol.
|
|
Substantive offences follow, communication
of the disawols. |
Acceptance of these views has important implications for the structuring
of substantive criminal offences.
If
the function of the criminal law and punishment is largely an expressive,
symbolic one, it is important that the messages to be communicated be
informative.
For instance, single broad offences would be morally confusing. The law
must state clearly, for example, that both murder and manslaughter are
unacceptable wrongs, but it must point out the level of rejection of each
activity by different labels and punishment levels.
Bearing this expressive function more clearly in mind would also lead to a
clearer relationship between different offences, for example, they,
handling stolen goods and fraud. The enquiry would simply be: how crucial
are the values embodied in each of these offences, relative to each other?
The answer to this question would reveal how necessary it was to disavow
deviation from those values; appropriate levels of punishment would
emerge.
|
|
Punishment and morality. |
A
lesser, but related, claim is that even if criminal law and punishment
does not actually mould morality, it nevertheless induces an automatic,
habitual response of obeying the law.
A
soldier in the army might not believe in the justice or morality of every
order he receives, but he has been indoctrinated into a knee-jerk habit of
obeying all orders.
The criminal law and punishment can induce such law-abiding conduct
'purely as a matter of habit, with fear, respect for authority or social
imitation as connecting links' (Andenaes, 1952).
|
|
Durkheim and "Conformist Theory" |
Punishment for the purpose of inducing the habit of conformity to the law
might be necessary for other psychological reasons.
Durkheim (1964) has argued that those who obey the law need
support. At a subconscious level there might be a temptation to commit
crime. By abstaining therefrom, the conformist has been able to maintain
internal control.
To sustain this balance within the personality and ensure the dominance of
internal control, the conformist needs to be able to identify with the
police and the courts; the offender must be made unattractive as a role
model.
The inhibition of deviant impulses must be made to seem worthwhile. The
punishment of offenders reassures the conformist that it was worth obeying
the law. His morale and habit of not breaking the law are maintained.
|
