SECTION B: EXISTING NON-CUSTODIAL
SENTENCES AND THEIR EFFECTIVENESS
(i) Non-custodial
sentences: the options available to the courts
Community
penalties
20. The Criminal Justice Act 1991 states that if
an offence is "serious enough" a community penalty may
be imposed[32]. The use
of community penalties, like prison sentences, has increased in
recent years. In 1996 (the last year for which figures are available),
133,000 offenders were given community sentences, 2 per cent more
than in 1995. The numbers of community sentences changed little
between 1994 and 1996, following rises of 13 per cent in 1994
and 11 per cent in 1993. Combination orders (see paragraph 28
below) have formed a significant part of this increase: their
use has risen rapidly from the first 1,300 made in 1992 to 8,900
in 1993, 12,400 in 1994, 14,600 in 1995, and 17,300 in 1996.[33]
21. Community sentences are implemented and enforced
by the probation service. There are 54 probation areas in England
and Wales which are each the responsibility of a probation committee
consisting of judges, justices and co-opted members who are not
justices. Each probation area has a Chief Probation Officer (CPO),
appointed by the committee, with the approval of the Home Secretary,
whose responsibility it is to ensure the effective and efficient
of operation the area probation service. Local authorities fund
20 per cent of most expenditure by probation committees, the rest
being paid for by the Home Office. The main responsibilities of
the service are:
- to provide the courts with
advice and information on offenders to assist in sentencing decisions;
- to implement and enforce community sentences passed
by the courts;
- to design, provide and promote effective programmes
for supervising offenders safely in the community for public protection;
- to assist offenders, before and after release,
to lead law-abiding lives which minimise risk to the public;
- to help communities prevent crime and reduce its
effect on victims;
- to safeguard the welfare of children in family
proceedings; and
- to work in partnership with other statutory agencies
and the voluntary and private sectors to provide effective programmes
for offenders.[34]
22. The following table gives details of the community
penalties available, the age of offender they may be imposed on,
the numbers imposed in 1996, and the cost of the order where available.
Community penalties available to the courts[35]
Community Penalty
|
Offender Age
|
Numbers Imposed (1996)
|
Average cost of order
|
Probation order |
16 years and over |
50,900 |
£2,450
|
Community service order
|
16 years and over
|
45,900 |
£1,250
|
Combination order (community service and probation)
|
16 years and over
|
17,300 |
£3,400
|
Attendance centre order
|
Under 21 years |
7,500 |
Not given
|
Curfew order enforced by electronic monitoring (trials running since July 1995)
|
16 years and over
(10 years and over in trial areas)
|
375[36]
|
Not given |
Supervision order
|
10-17 years |
8,500 |
Not given[37]
|
23. Probation Orders The probation order has
been in existence as an order of the court since 1907 and remains
the most commonly used community sentence. The statutory purpose
of a probation order is to "secure the rehabilitation of
the offender (e.g. by taking action to deal with the causes of
offending behaviour), to protect the public (e.g. by confronting
the offender with the effect of his crime on the victim) and to
prevent the offender from committing further offences (e.g. education
and training)".[38]
24. Probation orders require offenders to be under
the supervision of the probation service for a period of not less
than 6 months and not more than 3 years. Home Office National
Standards state that in the first three months of an order there
should be a minimum of 12 meetings (normally weekly) between offender
and probation officer, followed by at least 6 appointments in
the second three months, and at least one appointment a month
thereafter; although, as we note in paragraph 73, these minimum
standards are not always adhered to.
25. As well as these minimum requirements, under
the terms of the Powers of the Criminal Courts Act 1973 as amended
by Schedule 1A2 (1)(b) of the Criminal Justice Act 1991, sentencers
can make probation orders with additional requirements. Such additional
requirements can include: residential or non-residential mental
treatment; residence in an approved probation hostel; residence
in another institution; other residential requirements; attendance
at a probation centre; reporting to a specified person at a specified
place; participation in specified activities; refraining from
specified activities; mental treatment by/under qualified medical
person; residential or non-residential drugs/alcohol treatment;
extended requirements for sex offenders; or other requirements.[39]
In 1996 30 per cent of new probation orders had such an additional
requirement. This continued an upward trend: in 1991 24 per cent
had an additional requirement and in 1995 the figure was 28 per
cent.
26. The most common form of additional requirement
in 1996 was for the offender to participate in specified activities
(17 per cent of probation orders had this requirement). Such activity
can be to attend a probation programme intended to tackle a specific
type of offending behaviour, usually by means of participation
in weekly group sessions run by probation officers, typically
for ten weeks or so. Programmes exist to deal with, for example,
anger management, disqualified drivers, drug user offending, alcohol
related offending, drunk driving, and domestic violence. Some
probation areas also run programmes specifically for women offenders.
The common objectives of such programmes are to reduce the likelihood
of further offending, to increase offenders' awareness of the
effect of their crimes on victims and others, and to help offenders
develop skills which enhance their self-control and social skills.
27. Community service Community service orders,
which were introduced in 1974, require offenders to perform unpaid
work for between 40 and 240 hours within one year of conviction
at a minimum rate of five hours per week. The aim is to re-integrate
the offender into the community through positive and demanding
unpaid work. Such work may include helping to safeguard the community
against further crime; the repair of damage caused by crime; helping
the elderly or disabled; or work to improve the appearance or
amenities of a neighbourhood. According to ACOP, offenders on
community service orders perform over 6 million hours of work
annually for the benefit of an estimated 17,000 individuals and
community groups in England and Wales.[40]
28. Combination Orders Combination orders
combine probation and community service elements in one order.
The probation element may be of 1 to 3 years' duration; the community
service element of between 40 and 100 hours. First used in 1992,
their use has increased each year since then.
29. Curfew Orders Curfew orders use electronic
monitoring equipment to ensure an offender remains at a specific
place or places for between 2 and 12 hours a day, for up to six
months. Trials have been conducted since 1995 in Manchester, Reading
and Norfolk and are progressively being extended. Curfew orders
are discussed below at paragraph 156f.
30. Attendance Centre Orders / Supervision Orders
Attendance centre orders can be used in the case of any offender
under 21 who has been convicted of an imprisonable crime, or who
has failed to comply with probation order requirements. The aims
are to impose a loss of leisure and to use free time constructively.
The number of hours specified is normally 12, although it can
be increased to 36. Offenders should not be required to attend
for more than 3 hours on one occasion nor on more than one occasion
in a day. Centres are normally open for 2 or 3 hours every other
Saturday. Supervision orders are available for all juveniles and
place the offender under the supervision of a social worker or
a probation officer for up to 3 years. They may include an additional
requirement to reside in local authority accommodation for up
to 6 months.
Financial
Penalties
31. Fines If the offence in question does
not reach either the custodial or community penalty threshold,
the courts may impose a financial penalty or a discharge. The
most commonly used financial penalty is the fine. The Home Office
memorandum states that "in general terms where the Crown
Court may impose a fine there is no limit. The statutory maximum
fine on summary conviction for an offence triable either way is
£5,000. Maximum fines for summary offences are expressed
in terms of levels on a standard scale, the monetary value of
which may be increased by order". The present scale is[41]:
level 1 | £200
|
level 2 | £500
|
level 3 | £1,000
|
level 4 | £2,500
|
level 5 | £5,000
|
In 1996 1,073,000 offenders were fined, the average
fine being £140 in the magistrates' courts and £400
in the Crown Court. Although fines remain the most common form
of disposal used by the courts, their use has declined since 1986
when 1,598,000 offenders were fined.
32. Compensation Order The Courts may make
an order for payment for personal injury, loss or damage, or for
funeral expenses arising from the offence(s) taken into account.
In 1996 there were 89,100 such orders made by the magistrates'
courts and 5,700 made by the Crown Court; the average compensation
ordered being £160 and £1070 respectively. We discuss
the use of fines at paragraphs 175-179.
33. Confiscation Order The consolidated Drug
Trafficking Act 1994 and the Proceeds of Crime Act 1995 permit
magistrates' courts and the Crown Court to make confiscation orders
where an offender has benefited from drug trafficking offences
and some other crimes. The order is in addition to any other sentence.
If an offender defaults on payment he may be committed to prison,
but this does not expunge the debt.
Other Disposals
34. Binding Over Magistrates may bind a person
over to keep the peace and/or be of good behaviour, the court
ordering the person to enter a recognizance for a stipulated sum
and time. Binding over requires the person's consent; if this
is refused the court may commit the defendant for up to six months.
Approximately 38,600 binding over orders were imposed in 1996.
35. Discharges Where a court is satisfied
that it is inexpedient to punish an offender and where the sentence
for the offence is not fixed by law, it may impose an absolute
or conditional discharge. The former means that no further action
is taken. The period of the latter may not exceed three years
and must be specified by the court; if during that time a further
offence is committed the offender will be liable to be sentenced
for the original offence. 124,700 discharges were made in 1996.
36. Suspended Sentences Where imprisonment
for not more than two years would be an appropriate sentence but
there are exceptional circumstances, the courts may suspend the
sentence for between one and two years. If a further offence is
committed in that time the original sentence may be put into effect.
3,300 suspended sentences were passed in 1996. We discuss suspended
sentences further at paragraph 165f below.
32 We note the comments of the Magistrates Association
who state that "under the Criminal Justice Act 1991, community
sentences are not alternatives to prison sentences. They
are for offences that come within the 'serious enough' bracket,
whereas prison sentences are for the 'so serious' bracket. It
is, however, true that, if magistrates have confidence in a particular
community sentence as a vigorous punishment and consider it to
be an adequate punishment for the offence committed, they may
be persuaded to use it in place of custody in marginal cases."
(Appendix 11). However, in a less legal sense any non-custodial
sentence is an 'alternative' to a prison sentence and it is this
sense the term is used in this report. Back
33 Criminal
Statistics England and Wales 1996,
Home Office, Cm 3764, p 153. Back
34 Probation
Statistics, England and Wales 1996,
Home Office, p 2. Back
35 Appendix
1. Back
36 During
the second year of trials. Back
37 ibid. Back
38 ibid. Back
39 Probation
Statistics, England and Wales 1996,
Home Office, p 30. Back
40 Appendix
2. Back
41 Appendix
1, para 32. Back
|