Select Committee on Home Affairs Third Report


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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Prepared 25 August 1998