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Question 2: ‘Offence seriousness should be the primary determinant of sentence.

But
that does not mean that an offender’s criminal record is irrelevant to sentencing.’ In
what ways, if at all, do you think previous convictions should inform sentencing
decisions?

1. INTRODUCTION:
The first part of the question was noted from the judgment of Queen1 that ‘the proper
way to look at the matter is to decide a sentence which is appropriate for the
offence…before the court’. Thus, the seriousness of the current offence should be the
primary determinant factor in sentencing. Lord Taylor CJ in Bexley2 has further
emphasized, the court must regard primarily to the seriousness of the current offence.
In determining the seriousness of the offence, the sentencer would always take into
account any aggravating or mitigating factors which impinge upon the question of
offence seriousness3. Some of the factors apply across a range of offences. They may
further treat previous convictions, there is considerable evidence, as a form of
aggravation, without much reference to the concept of a ‘ceiling’ set by the current
offence.

I would examine this essay in two parts, firstly, whether the seriousness of the offence
should be the primary determinant of sentence; secondly, what information about a
defendant’s prior record is relevant to sentence selection, and in what ways that
should inform sentencing decisions.

2. THE KEY CONCEPT OF OFFENCE SERIOUSNESS:


a. Define ‘Seriousness’:
It is very difficult to define ‘seriousness’ in the abstract and no attempt is made to do
so in existing sentencing law. It is of great importance, however, for the sentencer to
gauge the seriousness of one offence in relation to another, and to distinguish within
each offence, for example one case of burglary from another case of burglary. The
sentencer, in assessing seriousness, would regard to the immediate circumstances of
the offence, and the degree of the offender’s culpability in relation to that offence.

1
(1981) 3 Cr.App.R. (S.) 245
2
(1993) 2 All E R 38
3
An example of a factor which tends to make an offence more serious is where the offender has committed the offence in breach
of trust.
b. The effect of the Criminal Justice Act 2003:
The court would, by s143 (1), in considering the seriousness of any offence, assess the
offender’s culpability in committing the offence and the harm, or risk of harm, which
the offence caused or was intended to cause. This amounts to a restatement, in more
specific terms, of the ‘just deserts’ principle, of the fact that the punishment should be
commensurate with the offence, and release the punishment to what the offender has
actually done. It spells out that culpability, the level of blameworthiness, is a matter to
which regard should be had. The provisions of s 143, despite long semantic debates
during the passage of the new Act, do not limit the matters which the court may take
into account as aggravating or mitigating factors.

The circumstances of the offence, in this context, are important, although this should
not be misunderstood. Section 143 requires the court to look at issues of individual
culpability. This will include the harm caused, or the risk of harm, because the fact
that the risk does not translate into actual harm is not within the control of the
offender and does not render the culpability of the offender any less great. The
circumstances of the offence itself-culpability, harm, risk of harm-are relevant to that.
But matters relating to the surrounding circumstances do not relate to offence
seriousness; rather, these are aggravating or mitigating factors4.

c. Factors which aggravate offence seriousness:


Offence seriousness can be notified through the aggravating factors which are well
established in English sentencing practice: offences by groups or gangs; offences
against young, elderly or otherwise vulnerable victims; offences involving the abuse
of trust or authority; racially motivated offences; and offences involving planning or
organization. By weighing up such factors as these, the sentencer will be able to reach
a view on offence seriousness, and hence a provisional view on the appropriate

4
The Scottish Minister of State observed: ‘(Section 143) concerns how the court should determine the seriousness of the offence.
The circumstances of the offence are an important factor when considering, for example, whether there are any aggravating or
mitigating factors. However, here it is the seriousness of the offence that the court is being required to consider in order to
determine what sentence to impose. The sentencing principles set out…are to guide the sentencer in reaching a decision on the
seriousness of the offence. … the surrounding circumstances are not relevant to that ..’
sentence. However, sections 148 to 153 of the CJA 20035 set out the thresholds for
community sentences and custodial sentences6.

d. Guidelines to assess seriousness:


Sentencers are not entirely on their own in assessing seriousness. They do not need to
start from a blank sheet in every case. They will derive guidance on the assessment of
offence seriousness, particularly where sentence is being imposed in the Crown
Court, from the guideline judgments of the Court of Appeal and, where sentence is
being imposed by magistrates, from the Magistrates’ Association Guidelines (2000)
and, perhaps, guidelines and norms produced by the particular bench. This guidance
relates to sentencing for particular offences, which deals with sentencing for a range
of individual crimes.

3. THE ANALYSIS OF PREVIOUS CONVICTIONS:


a. Relevance of previous convictions:
The significance of the offender’s previous convictions to the current sentence is
virtually unanimous. It becomes obvious and clear that full details of the defendant’s
criminal record should always be made available to the sentencing court and seems
that sentencers themselves regard the receipt of this information as being of very great
significance. The existing s.151 (1), 2000 Act7 allowed sentencers complete
flexibility to take account of previous convictions when sentencing, so that offenders
can now be sentenced ‘on their record’. In Spencer and Carby7, where two
pickpockets had been sentenced for attempted theft and for theft, McCowan LJ
remarked that ‘without doubt the offences for which they were being dealt with could
properly be viewed as more serious by reason of the appallingly long records of each
of these men for pick pocketing offences’8.

5
Section 79 of the PCC (S) A 2000 repealed by s 332 and Sch 37, which requires that a custodial sentence can be imposed only
where the offence committed by the offender is ‘so serious that only such a sentence can be justified’ (s. 79 (2) (a). The
exception referred to above, that a sentencer may impose custody where the offender has committed a sexual offence or a violent
offence, requires that ‘only such a sentence would be adequate to protect public from serious harm from him’ (s. 79 (2) (b).
6
The s. 35 (1) of the 2000 Act also repealed, which provides that a sentencer must justify the imposition of a community
sentence (rather than something less severe) and the criterion here is that the offence committed by the offender is ‘serious
enough to justify such a sentence’
7
One of the clearest statements of this principle can be found in Queen (1981). In the court of Appeal Kenneth Jones J said that it
was clear that the offender had been sentenced ‘not merely for the offences which he committed, but for his record’.
7
(1995) 2 KB 431
8
Lord Bingham CJ in Brewster (1998) stated that ‘the record of the offender is of more significance in the case of domestic
burglary than in the case of some other crimes’, holding that courts should distinguish between professional burglars and others
who show less persistence and deliberation.
b. The changes made by the 2003 Act:
The 2003 Act develops further that section 143 requires a court not only to take
account of previous convictions , but, equally importantly, also to treat each previous
conviction as an aggravating factor to offence seriousness if it can reasonably be so
treated. Some might consider that previous convictions should not, normally, be
regarded as relevant to offence seriousness, but rather to the question of aggravating
or mitigating factors that determine the nature and length of the sentence. Previous
convictions, but not cautions, are intended to aggravate offence seriousness, which is
heightened by previous offending. The expectation is that persistent offenders should
be treated progressively more severely. Those convictions, however, should be
relevant and recent, and s143 operates within the principle of sentence
proportionality.

c. Arguments against the relevancy of previous convictions:


The proper way to look at the matter is to decide a sentence which is appropriate for
the offence for which the prisoner is before the court. Another way of saying that no
prisoner should be sentenced for the offences which he has committed in the past and
for which he has already been punished9 . Some Court of Appeal decisions, such as
Galloway10, Bailey11 and Bexley12, displayed a general acceptance of the view that it
is wrong to impose a sentence which is longer than would be indicated by the
seriousness of the offence purely on the basis of previous record. A poor record
should not, on that view, be regarded as an aggravating factor relevant to offence
seriousness13.

4. PROPORTIONALITY:
A sense of proportion is obvious for the sentencer to keep in mind when deciding on
the total sentence. It is sometimes said that the totality of the offences or of the
criminality must be borne in mind, more often that the totality of the orders of the
court must be appropriate14. Therefore, the sentencer can not justify the inference,

9
See, Croall and Tyrer, Criminal Justice, p-87.
10
(1979) Crim LR 193
11
(1988) 2 KB 431
12
(1993) 2 All ER 760
13
The Court of Appeal confirmed in Bexley (1993), that an offender who has been punished for offences committed in the past
should not in effect be punished for them again when being sentenced for a fresh offence.
14
See, Radzinowicz, Sir L, and Hood, R (1981), ‘Dangerousness and Criminal Justice: a few reflections’, Crim LR 756.
from the commission of a single offence, that the offender is ‘the sort of person who
does that sort of thing’. One could further argue that it takes only one previous similar
conviction to rebut any presumption that the offender is not ‘that sort of person’, and
that something more plausible is needed to explain the feeling that each successive
conviction justifies greater severity. It seems less artificial to say simply that the
number of previous convictions is a measure of the offender’s lack of respect for the
law.

Until 2003, the prevailing English sentencing doctrine concerning previous


convictions was that of "progressive loss of mitigation", first adopted by the Court of
Appeal in Queen. This doctrine holds that a degree of mitigation should be extended
to first offenders; the discount, however, should diminish with subsequent offending
so that when the defendant has been before the courts on several occasions, he should
receive the full measure of punishment proportionate to the seriousness of his offence.

The sentencer should not, however, continue to increase the severity of sentence
indefinitely after each additional conviction. Furthermore, proportionate sentencing, it
was argued, calls for primary emphasis to be given to the gravity of the current
offence--and not to previous convictions for which the offender has already been
punished. At the end, it must be noted that an offender’s sentence should never be
increased to a level disproportionate with the seriousness of the current offence
simply because of his poor record15.

5. IN WHAT WAYS PREVIOUS CONVICTIONS TO BE RELEVANT:


It can be inferred that most of the references to Criminal record so far have been
general. But criminal records differ in several ways; therefore the court must weigh
and interpret the criminal record of the particular offender it is dealing with. The court
would likely to take into consideration of the factors of prior record, which are
emerged relevant, as is follows:

15
Despite the Court of Appeal authority listed above, this principle has never been fully accepted by sentencers who undoubtedly
do still tend in practice to regard a list of previous convictions, although is confirmed by 2003 Act, as an aggravating factor and,
at least to some extent, to sentence offender ‘on their records’.
a. The comparative seriousness of previous offences:
In practice, court is likely to attribute greater significance to previous burglaries than
to small thefts, although it is unlikely that a court passing sentence for shoplifting
would consider a previous conviction for a serious offence of sex, violence or fraud to
be relevant16. Clearly, all indictable offences committed by the defendant should
necessarily appear in his criminal record, but summary convictions contained in local
police records may not appear :Walker17.

Seriousness of past offences is a criterion for the operation of the extended sentence.
In Dodsworth18 where the defendant was convicted of the rape of a girl aged twelve.
The defendant had been convicted of attempted rape in similar circumstances in 1979,
which was regarded as highly significant, ‘…so plainly this is a man who has to be
punished and punished severely and from whom the public is entitled to expect
protection for a considerable length of time’

b. Similarity of previous offences to the current offence:


The English practice is heavily weighing the previous similar offences against an
offender than the dissimilar offences. It is unusual even to cite previous road traffic
offences after a non-traffic conviction, or to cite non-traffic offences after a traffic
conviction19. The Magistrates’ Association’s Sentencing Guidelines (2000) seem to
follow this trend. Magistrates are advised: ‘Consider previous convictions, or any
failure to respond to previous sentences, in assessing seriousness. Courts should
identify any convictions relevant for this purpose and then consider to what extent
they affect the seriousness of the present offence’20.

Some of the appellant cases where the very different nature of the earlier offending
has been held to render the record wholly or in part irrelevant are Silver21: conviction
for manslaughter, earlier record of traffic offending irrelevant, Williams22: defendant
16
Previous offences which were visited with severe sanctions (custodial sentences of thirty months or more) are never spent
under the 1974 Act.
17
1985) 3 Cr.App.R. (S.) 245
18
(1984) 1CR APP R 199
19
More generally, previous offences of a class different from the current offence may be able to be ignored (e.g. in the case of
theft, no reference may be necessary to a previous conviction of a sexual offence)’
20
A Practice Direction requires the police to provide courts with details of ‘the circumstances of the last three similar
convictions, and/or of convictions likely to be of interest to the court, the latter being judged on a case by case basis’. The drift of
this Practice Direction and of the Magistrates’ Association guidelines is therefore towards convictions relevant to this offence.
21
(1982) 3 All ER 659
22
(1983) AC 705
convicted of offence of dishonesty; the court took note of a ‘record of dishonesty’ but
regarded an earlier conviction for rape as ‘not material’, Cawser23: convicted of rape;
‘ a man with a bad record; it is, perhaps, fair to say, that there is only one incident in
his record of a sexual nature’.

c. Number of previous convictions:


The number of previous convictions is regarded as important in itself is supported by
several observations of the way in which prior record information is provided for and
handled by sentencers24. It is suggested that findings of guilt when the defendant was
a juvenile and convictions followed by nominal sentences are included. Spent
convictions are included, although they should be specially marked. However, it is
clear that number alone is not the governing factor.

Research was carried out by Shapland indicates that sentencers generally do not
require that a defendant’s full criminal record be read out in court, requesting ‘last
three or four only’ as reflecting previous convictions generally regarded as relevant25.
Official guidance26 suggests that previous convictions should not be read out if they
‘are either so stale or so different from the current offence as to make them of little
relevance’27.

d. Staleness of previous convictions:


It is a general principle of English law that previous convictions become ‘spent’ after
the lapse of time. The provisions of the Rehabilitation of Offenders Act 1974
establish ‘rehabilitation periods’, with the effect that for most purposes a conviction
should not be mentioned outside that period. The periods vary according to the
sentence imposed-for example, the period is five years where the sentence was a
community service order, but the period is unlimited if the sentence was custody for
longer than 30 months28. Therefore, the implications for stale offences are of less
23
(1980) 2 All ER 1033
24
Even formal police cautions should be presented to the court at the same time as previous convictions, but ‘care must be taken
to present cautions separately so that the distinction between cautions and convictions is clear’ (Home Office, 1985).
25
Shapland, 1981 Cr.App.R. (S.) 245
26
Home Office, 1973
27
There seems to be a clear working assumption on the part of police and court personnel that some previous convictions are
more relevant than others. The common practices of prosecuting sample counts and taking offences into consideration tend to
distort the number of previous convictions appearing on a record.
28
Where an offender’s criminal record is produced in criminal proceedings, convictions which are spent should be marked as
such, and courts should only take them into account in sentencing or mention them in open court where ‘the interests of justice
so require’. These provisions may be seen as an attempt to control the stigma arising from criminal convictions.
significance in the criminal record than recent offences that minor offences become
stale more quickly than serious offences and that offences visited with severe
penalties never become stale.

Where an offender has a conviction-free gap in his record, prior to the current offence,
it is well established that this should reduce the effect which the previous convictions
have on sentence29. In Fox30, the Court of Appeal reduced the sentence on a man aged
35 convicted of grievous bodily harm who had two previous convictions many years
earlier. The judgment revealed that his previous record of violence when he was in his
late teens and mid-twenties should have been left out of account in deciding what
action to take31.

e. The full details of previous sentences:


In the criminal record, the full details of previous sentences received should be
included, such as the amount of any fine, the duration of any custodial or non-
custodial sentence, or number of hour’s community service and any alteration as the
result of an appeal32. There are a number of other situations in which previous
sentences received by the defendant must be regarded as relevant; for example, the
previous offences and sentences which bear on statutory sentencing requirements may
need to be cited if the court contemplates a sentence to which one of the requirements
is relevant33.

f. Time gap of reoffending:


It is suggested that the frequency of past offending is relevant in sentence selection.
Under the 1974 Act, convictions become spent after the relevant ‘rehabilitation
period’ has expired. If an offence is committed during the rehabilitation period, the
first offence is not lived down until the rehabilitation period for the second offence
has ended. However, frequency is a criterion for the imposition of an extended
sentence. The existence of a conviction-free-gap prior to the current offence is

29
Broadly in the Children and Young Persons Act 1963, section 16(2) , which provides that in proceedings against a person who
has attained the age of twenty one, findings of guilt made against him when he was under the age of fourteen shall be disregarded
‘for the purpose of any evidence of previous convictions’.
30
(1980) 2 All ER 1033
31
See, Hutton, ‘Sentencing, Inequality and Justice’, 8 Social and Legal Studies 233.
32
The date of release from the last custodial sentence is also given. It is further noted that if the defendant has not previously
served a custodial sentence, the sentencer is obliged by statute to satisfy himself that custody is now essential.
33
See, Harding and Koffman, Sentencing and the Penal System, p-145.
regarded as a significant mitigating factor34. An example is Bleasdale35 where
Hobhouse J. commented: ‘what has to be said in favour of this appellant is that since
serving that sentence (in 1978) he has kept out of trouble. This is an important feature
in his favour. This appellant did make an effort, clearly, and between 1978 and 1982
he succeeded36.’

g. Age of the defendant:


The age of a defendant can operate as a significant mitigating factor in sentencing in
England, particularly where it is associated with other factors. It is suggested that
youth continues to have some value as a mitigating factor throughout the early
twenties and sometimes as late as thirty37. An aspect of this is that if previous
convictions were recorded against a defendant at a young age, they may be regarded
as less relevant later38.

h. Previous record in relation to character inference:


Certain offences are regarded as ‘obviously revealing’ in some way about the
defendant from his criminal record. In considering that there must be ‘something
wrong’ and suggesting a particular line of enquiry for the court, or a particular mode
of disposal. Examples would be a previous history of offences of arson or sexual
offences.

On the other hand, the Court of Appeal in Loosemore40, made the general observation
that a sentencer should deal with the defendant on the basis of his offence and not on
the basis of his ‘feckless character and general behaviour’. However, there are
numerous examples, where the Court may be seen to draw an inference as to character
from the list of previous convictions. In Smith41, where it was said to be ‘clear from

34
See, Thomas 1979, pp. 200-202.
35
(1984), 2 All ER 1033
36
A case combining this factor with the previous one is West (1983), where the defendant was convicted on two counts of
assault. The court, while noting West’s ‘indifferent record’, changed a custodial sentence to one of community service on the
basis that the last conviction for violence ‘was some nine years ago, when he was in his twenties’.
37
See, Thomas,1979, p.195.
38
Antecedents generally contain the age of the defendant, and his age at the time of the commission of each earlier offence is
evident from the list of previous convictions. Findings of guilt are included but convictions under the age of fourteen are
generally so marked. If the defendant was under seventeen when convicted, certain of the rehabilitation periods under the 1974
Act are halved.
40
(1980), All E R, 1. 156
41
(1982), AC 705
Smith’s record that he is a man who sees no reason at all why he should not poach if
he has the time and the opportunity’42.

6. WHETHER PREVIOUS CONVICTIONS INFORM SENTENCING DECISIONS:


The above identified factors to some extent, are capable of being refined and
encapsulated in sentencing decisions. The Court of Appeal traditionally has been
reluctant, when hearing appeals against sentence, to travel much beyond the instant
facts of the case to provide general guidance for sentencers. However, this has begun
to change, with an important series of ‘guideline’ judgments providing more
generalized assistance for sentencers on important questions of sentencing policy43.

It is suggested that prior record should inform the sentencing decisions in two
different ways. One way may be looked at in order to provide a basis for some kind of
predictive assessment of the defendant’s likely future behaviour or response to
sentence, or the other may be considered as a dimension of the defendant’s culpability
against which his punishment is to be measured. Some of the eight factors identified
(above) primarily reflect the predictive approach, some primarily reflect the
culpability approach (Just deserts), but nearly all are capable of reflecting both.

a. Predictive approach:
The academics so far have argued that a predictive rationale of sentencing must be
operating, whenever previous convictions are taken into account by the sentencer. For
example, Fletcher44: The contemporary pressure to consider prior convictions in
setting the level of the offence and of punishment reflects a theory of social protection
rather than a doctrine of deserved punishment . Furthermore, the rule of thumb is that
recidivists are more dangerous and that society will be better served if the recidivists
are isolated for longer terms45.

Let us consider the implications of prior record by using the information of the above
eight factors for the predictive approach. For example, the number of previous

42
And Bowater and Davies (1980) where the Court inferred from the record that the defendant was a man well acquainted with
dishonest methods of dealing in scrap metal.
43
such as prison overcrowding, or dealing with particular types of case, such as sentencing in serious drug offences .
44
See, Fletcher, 1978, p 466.
45
The correctness of this view will be challenged in a moment. In truth, it can be claimed that previous convictions are more
obviously relevant to the sentencer working on a predictive rather than a just deserts basis.
convictions recorded against a defendant is generally regarded as being the best
available predictor of future offending. The research evidence is that the more
convictions recorded against a defendant, the greater the likelihood that he will be
reconvicted46. Nevertheless, systematic guidance could in theory be drawn up for
sentencers along the lines of statistical prediction of likely re-offending on the basis of
past record, in reliance on research. Although there are uncertainties and
contradictions in the work which has been done so far, it could in principle be
achieved47.

There are, however, numerous problems with the predictive approach. Firstly48, a high
rate of error in prediction almost always occurs, both in failing to identify those who
did return to crime and in mistakenly identifying those who did not. Secondly, efforts
to improve predictive accuracy involve the collection of information about the
offender going far beyond his actual criminal record49. Collection of such data may
well be objected to on grounds of its likely inaccuracy and its invasion of privacy.

b. The culpability approach (Just deserts):


There are two main persuasive reasons were advanced for taking account of prior
record in computing culpability. The first was that ‘A repetition of the offence
following …conviction may be regarded as more culpable since persisted in the
behaviour after having been forcefully censured for it through his prior
punishment’50. The second was an ‘evidentiary’ one that the more often the defendant
is convicted and punished, the more sure we can be that he is actually guilty51.

Von Hirsch has further argued that when a person commits some misdeed in
everyday life, he may plead that his misconduct was uncharacteristic of his previous
behaviour. This plea relates to an inference which is normally drawn from (a) a

46
An English research carried out by Philpotts and Lancucki, in January 1979.
47
Such an exercise would be not dissimilar to the work which has been done in this country and the United States on ‘parole
prediction scores’.
48
In the vast majority of predictive studies carried out, whilst criminal record taken together with other predictive factors has
been strongly associated with subsequent recidivism, the association between each of the variables and future offending has been
found to be weak.
49
In important recent work on predictive sentencing by Greenwood (1982) matters identified as predictors include the
defendant’s history of drug use and his employment status, as well as the number of his previous convictions and his age when
first convicted.
50
See, Von Hirsch, Doing Justice, 1976, p-87
51
See, Von Hirsch, 1981, p-123
judgment about the wrongfulness of an act to (b) the disapproval directed at a person.
The actor is claiming in mitigation that though this act was wrong he should not suffer
full obloquy for it because the act is out of keeping with his customary standards of
behaviour. Logically, this plea carries greatest weight when the actor has not
committed the misdeed before and it becomes progressively less persuasive with
repetition of the wrongdoing. This analysis is then transferred to sentencing.
Therefore, it can be said that the resultant model is very similar, though drawn in
more detail, to the ‘progressive loss of mitigation’ theory. It entails that the
defendant’s criminal record is not appropriate to justify endless successive increases
in penalty, but is primarily a means of achieving sentence reduction for those with
clean or nearly clean records.

At this point, I would like to take an opportunity to examine the factors which were
identified above as potentially relevant to prior record in the English sentencing
context, seeing to what extent they might be compatible with a just deserts sentencing
framework. For example, the number of previous convictions, on the basis of
predictive sentencing, number provided the best available indicator of future
offending. The greater the number of previous convictions, the greater the risk of re-
offending and the more pressing the need for appropriate preventive sentencing.

In ‘Just deserts’ sentencing, however, the number is relevant only in a strictly limited
way. The defendant is entitled to mitigation for the first few offences, and then the
mitigation is exhausted so that the defendant is visited with the full penalty of the law.
The obvious question is how many repetitions can occur before the force of the
mitigation is lost? Von Hirsch concedes that he has ‘no ready answer’ to this
question, being content to suggest ‘a certain limited number of repetitions’. I may, for
the purposes of argument, select five. The crucial point is that after those five
convictions, reconviction would not attract greater severity. Von Hirsch calls this a
‘closed criminal history score’.

One of the most difficult matters for the just deserts theorists to resolve has been the
relevance of the defendant’s previous convictions to the current sentence. Some
writers have argued that such a theory cannot support more severe sentences for
persistent offenders and that the reasoning employed in taking account of them must
be covertly preventive. It has further claimed that it is ‘because we know that prior
convictions are prognostic of future criminality that the strict retributive model is, to
most persons, unacceptable’52.

Von Hirsch’s analysis of the relevance of prior convictions has been criticized by
Nigel walker by questioning the implications of the ‘out of character’ plea. He argued
that the principal defect of his justification is its failure to distinguish clearly between
punishings because punishment is deserved and punishing because punishment
expresses disapproval. If his argument is to hold water it must be carried to the length
of saying that recidivists should be punished not merely to express disapproval of
their character but because the sentencer is entitled to punish them for that character53.

c. The directions by the CJA 2003:


The Criminal Justice Act 2003 contains language that appears to reject the doctrine
of progressive loss of mitigation, and to substitute a cumulative model for dealing
with previous convictions. Subsection 143(2) provides that if the offender has recent,
related, prior convictions, a court must consider each prior conviction as justifying an
increment in sentence severity, based on an incremental enhancement in crime
seriousness. This provision would seem to generate a step function, with severity
increments accruing with every previous conviction (if considered by the court to be
related and recent)54. Such an approach is reminiscent of some sentencing guideline
schemes in the United States, in which defendants accumulate criminal history points
for each previous conviction55 or, in the case of the federal sentencing guidelines 56,
each previous sentence57.

A sentencing scheme that resorts to cumulative sentence increases for repeat


offenders will make the criminal law's public valuation of criminal conduct much
more diffuse. The focus would no longer be on the degree of harmfulness of the
offence and the offender's culpability, but rather on the extent of the offender's
52
See, Wilkins 1985, p-145.
53
The Court of Appeal sometimes allows evidence of good moral character –such as bravery – to mitigate sentence, but to
generalize from this to a policy of sentencing people for their moral character would be a leap into a bog without boundaries.
54
See, Von Hirsch and Roberts, ‘The Provisions of the Criminal Justice Act 2003 Relating to Sentencing Purposes and the Role
of Previous Convictions’ in Criminal Law Review August 639-652.
55
See Roberts, "Paying for the Past: the Role of Criminal Record in the Sentencing Process" in M. Tonry (ed.), (1997) 22 Crime
and Justice. A Review of Research.
56
. See US Sentencing Commission Guidelines Manual (2002).
57
See, Hudson, B,( 2003) Understanding Justice, p-265.
previous convictions. An offender who commits a lesser offence, having repeatedly
been convicted of such conduct before, could receive nearly as much condemnation
through his increased sentence as someone who has committed a much more harmful
and reprehensible act. As a result, the severity of the criminal sanction will no longer
reflect recognition of the degree of wrongfulness of criminal acts.

The Home Office, on the other hand, has tried to justify a cumulative model for
previous convictions in terms of crime prevention. Such claims are without empirical
support, however. One such claim is that a greater emphasis on the offender's
criminal record would have significant incapacitative benefits. Reference is made to
a group of about 100,000 persistent recidivists, whose criminal activities supposedly
would be impeded by lengthier prison sentences58. The plausibility of this claim is
marred, however, by the same Home Office document's admission that the
composition of this group is continually changing, with new entrants into the cohort
of active offenders and offenders leaving the cohort as their criminal careers slow
down59. Those given the enhanced sentences thus may no longer be the most active
offenders. The Halliday Report rejected such claims, and did not base its proposals
on any putative incapacitative effects60.

7. CONCLUSION:
English sentencing practice has universally recognised the importance of taking
account both of the seriousness of the offence and the defendant’s previous
convictions. The sentencer, in determining the seriousness of the offence, would
always take into account (of) the aggravating factors which impinge upon the question
of offence seriousness61.

The changes made by the 2003 Act that sentence severity should be commensurate
with the seriousness of the criminal conduct, in respect of the seriousness of the
58
Home Office, Criminal Justice: The Way Ahead (2002), para.1.28.
59
For example, over half the male offenders and fully 80 per cent of female offenders born between 1953 and 1978 had criminal
"careers" that were over in less than a year--not so much a career as a brief apprenticeship; see J. Prime, S. White, S. Liriano and
K. Patel, Criminal Careers of those Born between 1953 and 1978 (2001).
60
The report notes the shifting composition of the group of active criminal offenders, and points out that "even very modest
increases in incapacitative impact would call for very large increases in prison populations. The prison population would need to
increase by around 15%, for a reduction in crime of 1%".
61
Sentencers are not entirely on their own in assessing seriousness. They will derive guidance on the assessment of offence
seriousness, particularly where sentence is being imposed in the Crown Court, from the guideline judgments of the Court of
Appeal and, where sentence is being imposed by magistrates, from the Magistrates’ Association Guidelines (2000).
offence and the offender’s criminal history. The seriousness of the offence should also
reflect its degree of harm, or risk of harm, and the offender’s culpability in
committing the offence. The severity of the sentence should also increase to reflect
previous convictions, taking into account how recent and relevant they were.

The significance of the offender’s previous record to the current sentence is virtually
unanimous. There is great confusion over the precise relevance of items of
information contained in such records. The theory of just deserts, which is akin to
progressive loss of mitigation, appears to be gaining prominence in English writings,
reflecting the majority of observations of the Court of Appeal. On this view, as we
have seen, good record is a matter capable of constituting mitigation but poor record
is not an aggravating factor. Yet one of the leading writers on English sentencing,
Nigel walker, while accepting this position in theory, says that ‘it would be more
realistic to acknowledge that in practice a record with previous relevant convictions
is an aggravating consideration’.

Further attempt has been made in this essay to show how the previous convictions
inform sentencing decisions. Two separate strands such as ‘predictive’ sentencing and
‘just deserts’. It has been argued that these approaches are in tension with each other,
often entailing contrary inferences from facts about a defendant’s previous record. So
long as English sentencing retains both approaches in this context, its attitude to the
relevance of prior convictions is bound to be incoherent.
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