Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
1 Introduction
One of the aspects of the criminal justice system which attracts most public
attention and criticism is the sentencing of offenders. Usually the criticism is of
individual magistrates and judges for the leniency of particular sentences or for
what are seen as objectionable comments made in the course of sentencing an
offender.
It is important to realise that there are other levels of analysis which must be
made before one can give a fully informed critique of the sentencing system.
There are theoretical considerations of the possible objectives of sentencing
(which we shall consider in the first section of the lecture on sentencing), and
matters concerned with the legal constraints, both statutory and those based on
the decisions of the Court of Appeal, which will have an impact on individual
sentences.
victims' preferences in the sentencing of 'their' offenders" [2002] Crim. L.R. 689;
Law library; full text also available via Westlaw.)
In 2005 the Department for Constitutional Affairs proposed in a consultation paper
that relatives of victims of murder and manslaughter should also be able to
present statements to the court before sentence. (DCA Hearing the relatives of
murder and manslaughter victims (2005; last accessed at
http://www.dca.gov.uk/consult/manslaughter/manslaughter.htm on 29/2/2008.)
Ian Edwards took a critical view of the proposal, fearing that "If victims'
expectations are raised but then dashed, the criminal justice system will once
again face accusations of compounding their secondary victimisation." (I. Edwards
'A genuine voice?' (2005) 155 New Law Journal 1341; Law library; full text also
available online via Lexis Professional.) However, the governments response to
the consultation paper was to set up pilot victims advocates schemes in 5 Crown
Court centres.
Maxwell and Morris are quite enthusiastic about the New Zealand experience of
projects embodying several elements of restorative justice, claiming favourable
reconviction rates for offenders dealt with in the two schemes they studied (see
their Table 1, p 64). Morris and Gelsthorpe, however, have pointed out that in
England:
restorative processes will continue to occupy a marginal place in criminal
justice until contradictory values and practices of blaming and punishing
are given significantly less emphasis and restorative values and practices
are given significantly more emphasis. (A. Morris, & L. Gelsthorpe,
'Something old, something borrowed, something blue, but something
new?' [2000] Crim. L.R. 18; Law library; full text also available online via
Westlaw.)
A major evaluation of restorative justice schemes for young offenders in England
suggested that reconviction rates were not very dissimilar to those for a random
sample of other comparable offenders. However, the authors of the report also
noted, under the heading of 'Outcomes', that:
Eighty-three percent of offenders successfully completed their order or
Final Warning intervention. Where the views of victims and offenders were
sought, the responses were encouraging. On average, over three-quarters
of both victims and offenders felt well prepared by project staff, found the
process fair, agreed that their participation was voluntary and believed
that the intervention had helped the offender to take responsibility for the
offence, and seven out of 10 thought that the offender better understood
the impact of the offence on the victim.
(A. Wilcox & C. Hoyle, The national evaluation of the Youth Justice Board's
restorative justice projects. 2004; last accessed 29/2/2008 at
http://www.youth-justiceboard.gov.uk/Publications/Scripts/fileDownload.asp?
file=restorativejusticefull.pdf)
If the idea of embodying elements of restorative justice in the English criminal
justice system has little more than a marginal place at the moment, adopting a
restorative justice approach in offences of rape is likely to be some way off.
However, just such an approach has been advocated in a conference paper by
Martin Wright, Visiting Research Fellow in the School of Legal Studies at the
University of Sussex: Is mediation appropriate even for rape? (There is a link to a
pdf copy in WebCT.)
The full impact of the NLCJC across many of its objectives may take years to
assess as the Centre develops and embeds itself in the local community.
However, the early evidence is that the Centre is making progress towards
many of its original objectives, and that much has been learnt about new
models for delivering community justice.
Findings from the evaluation to date suggest that the NLCJC has made
particular progress in relation to reducing the time from arrest to sentence.
The strong judicial leadership and efficient operation of the court are leading
to fewer adjournments and fewer hearings overall, thus ensuring that cases
are dealt with quickly. The effective case management, problem-solving
approach and the powers to review progress on Community Orders under
section 178 of the Criminal Justice Act 2003 are also supporting compliance
with community sentences.
The distinctive community focus of the Centre has enabled local people to
influence its working and increase involvement in the criminal justice system.
Evidence suggests, however, that so far the Centre has only succeeded in
engaging community members who were already active.
Work remains to be done in addressing a number of the other objectives for
the NLCJC. Victim and witness satisfaction is being achieved for individual
victims. However, despite examples of successful community reparation
projects, awareness among the local community of what the NLCJC is doing in
terms of repairing harm to the wider community remains low. There was also
mixed evidence from interviews with community members as to the
Centres impact on local confidence in the criminal justice system or fear of
crime in the area.
(K. McKenna Evaluation of the North Liverpool Community Justice Centre
Ministry of Justice Research Series 12/07, pp. i, vii viii, 2007, last accessed
29/2/2008 at http://www.justice.gov.uk/publications/research291007c.htm)
offences associated with it, was so serious that neither a fine alone nor a
community sentence can be justified for the offence.
...
153 [Length of discretionary custodial sentences: general provision]
(1) This section applies where a court passes a custodial sentence other
than one fixed by law or falling to be imposed under section 225 or 226.
(2) Subject to section 51A(2) of the Firearms Act 1968 (c. 27), sections
110(2) and 111(2) of the Sentencing Act and sections 227(2) and 228(2) of
this Act, the custodial sentence must be for the shortest term (not
exceeding the permitted maximum) that in the opinion of the court is
commensurate with the seriousness of the offence, or the combination of
the offence and one or more offences associated with it.
considerable cost, and, in the case of an early plea, saves victims and
witnesses from the concern about having to give evidence. The reduction
principle derives from the need for the effective administration of justice
and not as an aspect of mitigation.
4.2 the level of the reduction will be gauged on a sliding scale ranging
from a recommended one third (where the guilty plea was entered at the
first reasonable opportunity in relation to the offence for which sentence is
being imposed), reducing to a recommended one quarter (where a trial
date has been set) and to a recommended one tenth (for a guilty plea
entered at the door of the court or after the trial has begun).
5.3 Where the prosecution case is overwhelming, it may not be appropriate
to give the full reduction that would otherwise be given. Whilst there is a
presumption in favour of the full reduction being given where a plea has
been indicated at the first reasonable opportunity, the fact that the
prosecution case is overwhelming without relying on admissions from the
defendant may be a reason justifying departure from the guideline.
(Sentencing Guidelines Council Reduction in sentence for a guilty plea
(2007) full text available online at http://www.sentencingguidelines.gov.uk/docs/Reduction in Sentence-final.pdf, last accessed
2/3/2008)
Billam [1986] 1 All E.R. 609; (1986) 82 Cr. App. Rep. 347
At the time of Billam, marital rape was not an offence, so the case provided no
guidelines for such situations; neither did the Court of Appeal deal in the
guidelines with any possible differences between 'stranger rape', 'relationship
rape' and 'acquaintance rape'. In its Advice to the Court of Appeal in 2002 the
Sentencing Advisory Panel noted that "the existing practice of the courts ... is to
treat the relationship as a mitigating factor, albeit one for which credit may be
reduced or lost in cases where serious aggravating factors (especially violence)
are present" (para 23).
The recommendation of the Panel (para 26) was that the Court of Appeal should
make a clear statement to the effect that all three types of rape should be treated
as being equally serious. The Panel reached this conclusion on the basis of
commissioned research which showed clearly that rape by a husband or partner is
as serious as 'stranger rape' in terms of its impact on the victim (para 24). The
Panel reported (para 23) that "Although 'stranger rape' is seen as a more
frightening and potentially dangerous experience, the breach of trust involved in
'relationship rape' or 'acquaintance rape' makes it equally serious."
That advice was accepted by the Court of Appeal in Millberry [2002] EWCA Crim
2891; [2003] 1 W.L.R. 546, [2003] Crim. L.R. 207 which otherwise in general
endorsed the approach in Billam. whilst adding four aggravating features to the
list provided in Billam.
[Additional reading: see P.N.S. Rumney, 'Progress at a price: the construction of
non-stranger rape in the Millberry sentencing guidelines' (2003) Modern Law
Review 870 (Law library; full text also available online via eLibrary.]
In June 2006 the Sentencing Guidelines Council published a draft Consultation
Guideline on all the offences covered by the Sexual Offences Act 2003, which was
eventually followed in 2007 by a Definitive Guideline on the SOA 2003. The
section dealing with rape is attached to the printed version of this handout; the
full text of the document is available at http://www.sentencingguidelines.gov.uk/docs/0000_SexualOffencesAct1.pdf (last accessed 10/3/08).
The length of sentences for rape increased considerably following Billam, but it
has been shown that the increase had started before the Court of Appeal's
decision in that case:
C. Lloyd & R. Walmsley, Changes in rape offences and sentencing. (Home Office
Research Study 105, 1989) (Law library)
The Sentencing Advisory Panel, in its Advice to the Court of Appeal in 2002
dealing with sentencing in rape, provided this statistical information:
... the average sentence for an adult offender sentenced to immediate
custody for rape in 2000 was 7 years 4 months (7 years 6 months on a not
guilty plea and 6 years 10 months on a guilty plea). The majority of
sentences (57%) fell within the range 5-10 years, but 25% of offenders
received sentences of under 5 years, and 17% were sentenced to more
than 10 years (including 10% whose sentence was life imprisonment). It is
impossible to tell from this statistical pattern whether sentencers are
departing from the Billam guidelines in imposing sentences below 5 years,
or whether these apparently lenient sentences are justified by the
circumstances of individual cases.
In the June 2006 Consultation Guideline on the Sexual Offences Act 2003, the
Sentencing Guidelines Council gave this updated information and assessment
(para 2A.2):
In 2004, the vast majority (72%) of custodial sentences were for more than
5 years, with 86% being over 4 years. The average sentence was 7
years. There is no reason to suppose that the average length of sentence
will be reduced as a result of any of the measures in the Act or the
recommendations for starting points set out in these guidelines.