Whether non-custodial sentences can ever

achieve the stated aims of sentencing

Introduction:
Sentencing is the method used by the state to impose punishment on an offender who has
been found guilty of a criminal offence. Ultimately, sentencing is the process by which the
state responds to those who are known to have broken the law. 1 This is a key function of the
criminal justice process and brings together the objectives of protecting the public, defining
public morality in practice and at the same time providing justice for offender and victims.
Among the different types of sentences custodial and non-custodial sentences bear more
significance. Though the non-custodial sentences i.e. fine, community sentence have some
sort of criticism, still those are the most common approach preferred by the Judges while
deciding the sentences for the wrongdoer to oblige the aims of the sentencing. In fact
criminal justice system of United Kingdom prefers the non-custodial sentences. Under
section 152(2) of the Criminal Justice Act 2003 The court must not pass a custodial
sentence unless it is of the opinion that the offence, or the combination of the offence and
one or more offences associated with it, was so serious that neither a fine alone nor a
community sentence can be justified for the offence.
Aim of sentencing:
The aim of sentencing is the purpose or objective that the sentence or policy maker is
seeking to achieve.2 The broad aims of sentencing are reducing crime and protecting the
general people by punishing the offender as well as a lesson for the offender not to commit
any such offence in the future. Section 142(1) of the Criminal Justice Act 2003 describes the
purposes of sentencing, to which any court dealing with an offender in respect of his offence
must have regard as:
a)
b)
c)
d)
e)

The punishment of offenders,

The reduction of crime (including its reduction by deterrence) ,
The reform and rehabilitation of offenders,
The protection of the public, and
The making of reparation by offenders to persons affected by their offences.

A sentence must involve some form of punishment, and key feature distinguishing criminal
from other branches of law is that it involves the possibility of the state imposing a
punishment on an offender.3 Sentencing policy, so far not very articulated in this country, is
1 Muncie, J & Wilson, D (2004) Student Handbook of Criminal Justice and
criminology, Cavendish Publishing, p-206
2 Davies, M, Croall, H & Tyrer, J (2005) Criminal Justice: An Introduction to The
Criminal Justice System in England and Wales, Harlow: Pearson Education, p-293
3 Ibid, p-293
1

now emerging as a theme for discussion.4 It is not surprising, in the largely discretionary
system the UK have had, that it has not been well defined. Now that the judicial system may
be moving towards a conscious development of it, the identification of purposes is essential.
Their expression is key to achieving many of the improvements the framework review
identifies is as necessary. These are broadly speaking greater transparency, consistency,
and accountability. Commanding public confidence and enhancing human rights protection
are integral to these aims.
In July 2001, John Hallidays Making punishments Work: Report of the Review of
Sentencing framework for England and Wales (the Halliday report) was published.
Hallidays brief was to examine whether the sentencing framework for England and Wales
could be changed to improve results, especially by reducing crime, at justifiable expense.5
Types of sentencing:
There are four main categories of sentence, namely discharge, financial penalties,
community orders and custodial sentences. Apart from those classification sentences can be
broadly divided into two categories i.e. custodial sentences and non-custodial sentences
(financial penalties and community orders). Custodial sentence means any form of
sanction, where offenders are deprived of freedom of movement, i.e. placed in a closed
residential setting not their home (imprisonment), no matter whether they are allowed to
leave these premises during the day or during weekends. Thus, boot camps would be
considered custodial. Whereas non-custodial sentence means any form of sanction that
does not involve any deprivation of liberty, such as community work, electronic monitoring,
financial or suspended custodial sanctions. Thus, the category of non-custodial sanctions
includes a great variety of punishments that have in common to leave the offender in the
community rather than putting him into confinement. In the UK the most frequently used
non-custodial sentences are:
Fines: the offender is required to pay a specified sum of money to the authorities.
Probation: the offender is required to be supervised and regularly checked for a specific
period.
Reparation & restitution: the offender is required to undertake specified activities to repay
either society or his victim for his criminal activities.
Success of non-custodial sentences on achieving aim:
In the twentieth century the emergent social science appeared to hold out the hope that
crime could be reduced humanly.6 It was believed that through the application of science the
4 Justice-The purposes and principles of sentencing, December 2001,
www.justice.org.uk
5 Hungerford-Welch, P (2009) Criminal Procedure and Sentencing, 7 th edn,
Routledge-cavendish, London, p-737
6 Davies, M, Croall, H & Tyrer, J (2005) Criminal Justice: An Introduction to The
Criminal Justice System in England and Wales, 3rd Edn. Harlow: Pearson
Education, p-299
2

causes of crime, which was seen as a kind of illness, could be diagnosed and treated.
Criminals, therefore, were in need of treatment rather than punishment. And Throughout the
Western World, community-based sanctions have become a popular and widely used
alternative to custodial sentences. The non-custodial sentences include fines or financial
penalties and community penalties. The community penalties are off different categories i.e.
probation, reparation & restitution. In order to evaluate whether the non-custodial sentences
can achieve the stated aims of sentences the Halliday report along with the Criminal justice
Act 2003 should be considered. The Halliday report suggests that the purpose of sentencing
is not confirmed to punishment; rather the aims of sentencing should include both crime
reduction and reparation. The report, therefore, concluded that sentencing framework should
do more to reduce re-offending through working with offenders under sentence, and that
more should be done to build on the contributions that reparation and restorative justice
schemes can make.7
Fines or financial penalties are the most common sentences. A fine is a sum of money an
offender is required to pay to the authorities. The amount is generally set by the court but
there are usually statutory limits on the size of the fine. The fine, therefore, can be accurately
adjusted in terms of proportionality, and usually thought as a deterrent or retributive
sentence.8 The object of the fine penalty is to reduce the likelihood of crimes being
committed in the future by the threat of economic pressure, which is more likely similar with
the main objectives of sentences set out in section 142(1) (a) & (b) of the Criminal Justice
Act 2003.
The community penalties i.e. probation and community service are another commonly
sanctioned penalties of non-custodial sentences. Sentencing reforms have been very
pronounced in the area of community penalties ranging from changes in the names of orders
to adding new orders and reorganising their availability and implementation.9
In 2000 probation orders were renamed community rehabilitation orders, community service
orders became community punishment orders and the combination order was renamed as a
community punishment and rehabilitation order.
When an offender is put under community rehabilitation, they are released into the
community with the proviso that they must meet certain conditions or risk further
punishment. A community rehabilitation order might be given with a suspended sentence or
as a condition of early release from prison. Violation of the terms of the community
rehabilitation order would consequently mean (a return to) custody. The conditions imposed
7 Hungerford-Welch, P (2009) Criminal Procedure and Sentencing, 7 th edn,
Routledge-cavendish, London, p-738
8 Davies, M, Croall, H & Tyrer, J (2005) Criminal Justice: An Introduction to The
Criminal Justice System in England and Wales, 3rd Edn. Harlow: Pearson
Education, p-303
9 Ibid, p-304
3

generally require that the offender is under the supervision of a community officer with whom
he is expected to meet regularly. Other conditions might involve taking part in particular
activities or employment or submitting to regular drugs tests. As a sentencing goal,
rehabilitation is concerned with the future behaviour of an offender and aims to reduce the
likelihood of future offending. Thus the use of welfare and treatment strategies targeted at
individual offenders. The justification for this is that, if successful, fewer people will be future
victims of offences committed by these offenders.10
Reparation and restitution-based sentences require the offender to undertake activities that
in some way pay back the community or the victim for their crimes. The distinction between
these two are:
Reparation: the offender is required to spend a specified time undertaking activities
of benefit to the community. This was previously called community service and is
now called community punishment.

Restitution: the offender is required to do things that directly compensate the

victim(s) of their crimes.

Increasing concern with the interest of victims has led to a growth of interest in reparation
and restitution which aim to compensate the victim of crime, either specifically or
symbolically. Experimental reparation schemes have involved bringing offenders and victims
together to attempt not only reparation, but also conciliation.
Conclusion:
Though the criticisms of non-custodial sentences were persuasive and led to its demise.
However, a number of points in its defence need to be made. The prison population has
exploded, mainly the lack of space in prison estate and the cost of housing high numbers of
prisoners and to reduce it the community penalties should be used. The main aim of the
non-custodial sentences is to prevent further offending by reforming offenders characters,
thus curing them of their criminal tendencies. Offenders are rehabilitated to return the
society as law-abiding citizens.

10 Ibid, p-299
4