Thinking about sentencing holistically Nicola Padfield Reader in Criminal and Penal Justice, University of Cambridge; Master of Fitzwilliam College ‘Purposes of sentencing’ Section 142 Criminal Justice Act 2003 enacted for the first time the provision that any court sentencing an offender must have regard to the following: (a) the punishment of offenders, (b) the reduction of crime (including its reduction by deterrence), (c) the reform and rehabilitation of offenders, (d) the protection of the public, and (e) the making of reparation by offenders to persons affected by their offences. Theory Retributivism v. Utilitarianism Main sentencing options • Imprisonment: indeterminate (life), fixed term, extended, immediate or suspended • Community order (with many possible requirements e.g. unpaid work, curfew, supervision, drug treatment…) • Fine • Also many ancillary orders: compensation, disqualifications, confiscation (see Proceeds of Crime Act 2002) Life sentences • • • • • Mandatory Discretionary HM’s Pleasure Custody for life IPP: if offender deemed ‘dangerous’: no new ones since 3 Dec 2012 (Actually – 11 different sorts being served today; All have minimum term fixed by trial judge) Determinate sentences Some big problems face ‘front door’ sentencers: • The so-called ‘custody threshold’ • When to suspend the sentence • The impact of previous convictions • Reductions for guilty pleas • The totality principle Possible requirements for community orders: • • • • • • • • • • • • • • Unpaid work requirement: between 40 and 300 hours Activity requirement: particularly with ‘reparative purpose’ Programme requirement: accredited programmes only Prohibited activity requirement Curfew requirement: between 2 and 12 hours a day Exclusion requirement: up to 2 years Residence requirement Mental health treatment requirement Drug rehabilitation requirement Period review of drug rehabilitation requirement Alcohol treatment requirement Supervision requirement Attendance centre requirement (if under 25) Electronic monitoring requirement Issue 1: prison population As of 6 March 2015 (+ figure for equivalent Nov 2007 in brackets) Men Women 81,698 (76,749) 3,866 (4,507) TOTAL: 85,564 (81,684) (Why does it matter? 41,800 in 1993!) 14% = foreign nationals, doubled in last decade; lifers; recalls…. Issue 2: enforcement of sentences • Back door sentencing as important as ‘front door: imprisonment: see recall population • Community penalties • Fines Release (i) Determinate length sentences Released automatically at half-way point + Home Detention Curfew – introduced 1998; license + electronic monitoring. Under 4 years sentence, may be released up to 135 days before half-way point – Controversial: selection processes (especially in private prisons?) but reduces prison population (+ End of Custody Licence: extra 18 days early – abolished just before the last election!) (ii) Indeterminate sentences and recalls Parole Board • established in 1968 by CJA 1967; Non Departmental Public Body in 1996 (see Criminal Justice and Public Order Act 1994) • its independence was (finally!) challenged successfully: Brooke v Parole Board [2008] EWCA Civ 29: – CA: arrangements for the Parole Board did NOT sufficiently demonstrate its objective independence of the Secretary of State, as required by both English common law and Art.5(4) of ECHR. Role of Parole Board • Paper panels: particularly for those sentenced before 2005 • Oral hearings: particularly for those serving life/IPP sentences and who have served the minimum term set down by the trial judge when sentencing + RECALLS (those recalled to prison during the second part of their sentence when on license in the community) • Major changes since R (Smith) v Parole Board; R (West) v Parole Board [2005] UKHL 1; Osborn and Booth [2013] UKSC 61; R (Whiston) v Sec State J [2014] UKSC 39 Enforcing community orders • The role of the Probation Service – Created 1907 – Became a national service in 2001 – Great uncertainties following the Carter Report of 2003 and the creation of NOMS in 2004 – See the Offender Management Act 2007; Offender Rehabilitation Act 2014 – And since 1 February 2015? The National Offender Management System • breaking down the ‘silos’ of prison and probation • better through care BUT • contestability - more fragmentation? • more management and fewer ‘relationships’? Concern: checks and balances • Parliament: role of Select Committees (e.g. House of Commons Justice Committee’s Report (2008) Towards Effective Sentencing or the Role of the Probation Service • HM Chief Inspector of Prisons • Prison and Probation Ombudsman • Independent Monitoring Boards (for each prison) • Courts: judicial review • Transparency: Annual Reports etc, role of media Future directions? • What works to reduce re-offending? • The purposes of punishment? • The role of the courts in supervising the enforcement of sentences? (Not likely: see the new Parole Adjudicators in Criminal Justice and Courts Act 2015) Three ideas? • creating a presumption against short terms of imprisonment • distinguishing suspended sentences of imprisonment from community orders • focusing more attention on that part of a custodial sentence which is served in the community Thank you Recent Padfield publications on sentencing! ‘Exploring or Measuring the Success of Sentencing Guidelines’ in A. Ashworth and J. Roberts (eds), Structured Sentencing in England and Wales: From Guidance to Guidelines (OUP, 2013) ‘The influence of sentencing and the courts on the prison population’ in Loader, I. (ed) The Penal Landscape: The Howard League Guide to Criminal Justice in England and Wales (Routledge, 2013) ‘Intoxication as a sentencing factor: Mitigation or Aggravation?’ in Roberts, J.V. (ed.) Aggravation and Mitigation at Sentencing (CUP, 2011) ‘Time to Bury the Custody “Threshold”?’ (2011) Criminal Law Review 593 Understanding Recall 2011(2013) Uni of Cambridge Faculty of Law Research Paper No. 2/2013 Life sentences in law and practice (2015) Prison Service Jnl 21