APPENDIX 13
Memorandum by the Justices' Clerks' Society
The Justices' Clerks' Society is an association
of the chief legal advisers to the Magistrates in England and
Wales. All Justices' Clerks are either barristers or solicitors
and are approved for appointment by the Lord Chancellor. By statute
their functions include "the giving to the justices of adviceabout
law, practice or procedure on questions arising in connection
with the discharge of theirfunctions . . .". According to
the Practice Direction (1981) 2 AER 831 about the role of the
Clerk in Court, the Justices' Clerk "has the responsibility
to advise the justices generally on the range of penalties which
the law allows them to impose and on any guidance relevant to
the choice of penalty provided by the law, the decisions of the
superior courts or other authorities".
Sentencing is not an exact science. Its main
aims are said to be retribution, deterrence, rehabilitation and
restoration or reparation. The framework is set down in statute
which can change according to the policy of the government of
the day. Particular sentences can include both deterrent and rehabilitative
aspects and all sentences must be based on the seriousness of
the offence. Sentencers are influenced by their own views of the
gravity of the offence, the causes of crime and the aims of sentencing
and these may be based on their age, occupation, urban or rural
background, race, gender, religion and political allegiance.
Custodial sentences are meant to punish and
deter. It is accepted that imprisonment must be used for the most
serious crimes, especially violent or sexual ones. The public
must be protected and the severity of the crime must be marked.
It should, however, be the exception rather than the rule. Every
sentence is an intervention in an offender's life and a restriction
upon his leisure, if not his liberty. It must also be remembered
that a vast number of offences are not punishable by imprisonment
at all.
The current sentencing framework is largely
found within the Criminal Justice Act 1991. The Home Office General
Guide to the Criminal Justice Act 1991 (HMSO 1990) stated that:
"(i) the severity
of the sentence in an individual case should reflect primarily
the seriousness of the offence which has been committed. Whilst
practices such as preventing crime or the rehabilitation of the
offender remain important functions of the criminal justice system
as a whole, they should not lead to a heavier penalty in an individual
case than that which is justified by the seriousness of the offence
or the need to protect the public from serious harm from the offender;
(ii) a sharper distinction
than hitherto should be drawn between property offences and offences
against the person—that is, crimes of a sexual or violent
nature. The Act recognises that traditional restrictions may need
to be placed on the liberty of a sexual or violent offender in
order to protect the public from serious harm from the offender.
(iii) the procedures
for administering sentences once they have been imposed should
be rigorous and fair so as to ensure that the sentencer's intentions
are properly respected in the way in which the sentence is served;
(iv) community penalties
should play a full part in their own right in the structure of
penalties. They should not be viewed as `alternatives to custody'".
The Society has no detail of the costs involved
in particular sentencing options but it is obvious that there
is a resource implication for community penalties and also the
enforcement of fines.
ABSOLUTE
DISCHARGE
This sentence is used to mark a conviction but
there is no punishment or obligation involved. It is useful for
technical or very minor breaches of the law.
CONDITIONAL
DISCHARGE
This Order is used where punishment is considered
inexpedient, eg for very minor offences, first time offenders,
or where a fine would be appropriate and the offender has no means
to pay. It places the offender under an obligation to keep out
of trouble for the period of the discharge. It can be combined
with ancillary penalties, eg compensation and costs. It has a
future deterrent effect in that, if another criminal offence is
committed during the operational period, the offender will be
dealt with for the offence for which he was given the conditional
discharge as well as the new offence. It is a threat or a warning:
the Court will impose no sanction so long as there is no re-offending
within the specified period.
FINE
This is by far the most common penalty used
by the Magistrates' Courts. A loss of spending power deprives
the offender of the ability to direct money to other pursuits
or purchases. It is understood by the offender and the public
at large and provides a swift disposal for minor offences where
the offender has the means to pay. A fine must be fixed in accordance
with the seriousness of the offence and must also take into account
the financial circumstances of the offender. It affects a low-income
offender more than a very wealthy one.
Courts experience difficulty with persistent
petty offenders as cumulative fines become impossible to pay:
further fines on low-level offenders are impractical.
The enforcement of fines is a major issue with
large balances outstanding at any one time.
Factors contributing to enforcement difficulties
are:
— High mobility
of some offenders;
— The giving of
false names, addresses and dates of birth;
— Inertia on the
part of Police in the execution of warrants.
COMPENSATION
This monetary penalty is directly related to
the crime in that the victim is compensated. It can stand alone
or can be ancillary to another penalty. Enforcement difficulties
arise in the same way as fines, despite compensation taking priority,
and this can cause further distress to the victim. The Society
favours a statutory compensation fund with payment being made
to the victim straight away with subsequent recovery from the
offender.
PROBATION
ORDER
This is now a sentence in its own right and
not, as was once the case, an Order in lieu of sentence. The offence
must be serious enough to warrant a community penalty but the
offence itself does not need to be punishable by imprisonment.
The statutory purposes of probation are:
— to secure the
offender's rehabilitation; or
— to protect the
public from harm from the offender; or
— to prevent further
offences by the offender.
It lasts between six months and three years.
The Order restricts liberty through attendance
at appointments and is rehabilitative in nature. It is a flexible
sentencing option which can be tailor-made to the individual by
the introduction of certain conditions, eg attendance at a drink
or drugs rehabilitation course. It allows an offender to continue
living in the community while facing up to his crime.
Probation is no longer for someone who "needs
help" but it is often seen by the public as a soft option.
Little has been done to educate the public of the changes brought
about by the Criminal Justice Act 1991.
Following on from the previous Government's
paper, "Strengthening Punishment in the Community",
pilot schemes on Community Service Demonstration Projects have
been set up in Cleveland and Shropshire. It is hoped that these
will have a positive outcome in allowing Magistrates to indicate
the direction of the Probation Order and what is precisely expected
of the offender, in encouraging the Probation Service to become
more creative in the design of the Orders and their presentation
to a wider audience and in informing the public of what these
Orders really mean.
There are areas of good practice throughout
the country but there are still instances of non-compliance with
National Standards. Under-resourcing may also be a problem. Breaches
of such Orders need to be dealt with swiftly but, here again,
the Probation Service suffers from locating the offender who has
absconded and the lack of priority given by the Police to the
execution of breach warrants.
COMMUNITY
SERVICE
ORDERS
This Order restricts liberty and allows the
offender to remain within the community while making reparation
to society. It is seen as a constructive penalty which can introduce
discipline into an offender's life. Such an Order can only be
made where the maximum sentence for the offender includes imprisonment,
although the Order is not an alternative to custody but a sentence
in its own right. The choice of work is for the Probation Service
and not the Courts.
The Order does not address the offender's behaviour
and any claims for a rehabilitation effect centre on the "spin-off"
of working alongside public-spirited volunteers or from working
with disadvantaged members of the community.
Very often the public feels that the offender
should be punished by performing more onerous work and again,
little is done to educate the public of the exact nature of the
Order.
The Order depends on the quality of supervision,
the management and availability of the schemes. Compliance with
National Standards is patchy and enforcement can be problematic.
Breaches can, themselves, lead to a dilemma for the Courts where
swift action which in almost all cases means a custodial sentence
is balanced against the risk of a possibly more positive outcome
by postponing a final decision while encouraging the offender
to continue with the Order.
COMBINATION
ORDER
This Order combines elements of the Probation
Order and the Community Service Order. It restricts liberty, while
at the same time, addressing behaviour. The offence must be punishable
with imprisonment. The Order is used at the higher level of the
sentencing tariff and in practice, it has proved to be a very
demanding Order which is often breached.
CURFEW
ORDER
Pilot schemes currently taking place suggest
that a Curfew Order is found to be an appropriate penalty in certain
areas of the country more than others. It is a flexible Order
which restricts liberty and can target a particular time of day
when offending occurs. There is no restriction requiring that
the offence is punishable by imprisonment.
The Society feels that this is a positive sentencing
option which should be more widely introduced.
ATTENDANCE
CENTRE
ORDERS
This Order is restricted to a particular age
group. It restricts liberty while providing discipline through
physical education and lectures. It brings the offender into contact
with law-abiding adults who can provide suitable guidance.
Travelling to centres can be a problem and this
sometimes gives rise to breaches.
SUSPENDED
SENTENCES
OF
IMPRISONMENT
The Court must be satisfied that the offence
is so serious that immediate imprisonment is appropriate. There
must then be "exceptional circumstances" to justify
the suspension. The Court of Appeal has interpreted the term,
"exceptional circumstances', quite narrowly and the following
cannot be exceptions: previous good character, provocation, youth,
early guilty plea, domestic difficulties, loss of career, long
public service, as these factors should have been taken into account
as personal mitigation before custody was considered to be the
appropriate sentence. "Exceptional" could include an
offender's extremely poor state of health, however. As a result
of these restrictions the Order has fallen into disuse. Previously,
the Order was favoured by the Courts as it could serve as a threat
to caution against future re-offending and give an offender one
last chance.
SUSPENDED
SENTENCE
SUPERVISION
ORDER
The Crown Court has power to make a suspended
sentence supervision Order when it suspends more than six months'
imprisonment for a single offence. This has largely fallen into
disuse.
MENTALLY
DISORDERED
OFFENDERS
Apart from probation with a requirement for
treatment, Courts may also make the Mental Health Hospital or
Guardianship Orders.
ANCILLARY
ORDERS
In addition to the penalties described above,
the Courts may make the following Orders:
— A Restitution
Order which restores goods or the proceeds of goods which have
been stolen, to a victim.
— A Deprivation
Order which deprives the offender of property based or intended
to be used in the commission of an offence.
— Disqualification
from Driving, which is a real deterrent in road traffic cases.
— The Endorsement
of a Driving Licence with penalty points which may subsequently
lead to disqualification.
— Binding over
a person to be of good behaviour.
— Exclusion Orders,
either in relation to licensed premises or from football matches.
There are other disqualification provisions
in relation to prohibiting offenders from being the director of
a company, offenders keeping animals and also in relation to fishing
licences, restaurant licences and gaming club licences.
OTHER
FORMS
OF
NON-CUSTODIAL
SENTENCE
The Society favours the provisions which are
contained in the Crime and Disorder Bill and suggests that consideration
be given to the introduction of appropriate Reparation Orders
where work is performed directly for the particular victim with
his consent. The Society is aware, however, of the need to be
cautious because consistency of sentencing may be affected if
a victim's views are allowed to dominate the sentencing process.
The Society is also in favour of a wider introduction
of electronically monitored Curfew Orders. Consideration could
also be given to a two-tier Community Service Order where a higher
and more demanding Order could be used as a direct alternative
to custody.
EFFECTIVENESS
OF
NON-CUSTODIAL
SENTENCES
It must be borne in mind that sentencing is
not the only punishment. In some cases, the process, ie, being
prosecuted, appearing in Court, being publicised in the local
newspaper, is punishment itself. At the other extreme, the effects
of sentencing may be reduced by the enforcement of the sentences
thereafter. Given the doubts which exist over the reformative
capability of prisons, the deterrent effect of custodial sentences
and the problems of the prison estate as a whole, it may be said
that non-custodial sentences are certainly as effective as a means
of rehabilitation and preventing re-offending, if not more so,
than custodial sentences. At the same time, while a person is
incarcerated, he will not commit crimes in the community but evidence
does suggest that existing prison conditions cause a substantial
number of prisoners to leave prison more embittered and in a state
of mind where they are more likely to re-offend.
CHANGES
TO
USE,
DESIGN
AND
DELIVERY
OF
NON-CUSTODIAL
SENTENCES
The Society supports the idea of a sentencing
advisory panel with contributions from those experienced in Magistrates'
Courts sentencing. This panel should consider the existing sentencing
framework and give guidance on particular sentencing problems
in relation to ethnic minorities, young offenders, the mentally
disordered and those engaged in crime to feed their drug habit.
It must be recognised, however, that the causes of crime are many
and sentencing alone will not prevent re-offending. Any Government
needs to address the problems in society as a whole. The Probation
Service needs to work intensively with offenders and be responsive
to the needs of sentencers and the public. The Service is under
increasing pressure to show that it can deliver results whilst
working within the confines of financial constraints, managerial
accountability and sometimes a bad press.
CONFIDENCE
The Society has already touched upon the lack
of public information on non-custodial disposals. The media are
very quick to criticise those who deal with offenders in the community
and, whereas the public has been fed a diet of television series
dealing with Police, Courts, Crown Prosecution Service and Prison,
it has been very many years since we have had a similar series
on Probation Officers. Sentencers of all levels of seniority should
be encouraged to visit community programmes to see for themselves
what is on offer. At the same time, Courts, through the medium
of open days, mock trial competitions and provision of speakers
to local community groups, can play their part in explaining the
criminal justice system. Greater public discussion of the sentencing
process would be welcomed.
January 1998
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