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Taking the strait-jacket off: persistence and the distribution of punishment in England and Wales

Published online by Cambridge University Press:  02 January 2018

Ian D. Brownlee
Ian D. Brownlee*
Affiliation:
Centre for Criminal Justice Studies, University of Leeds1
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Extract

Among its many provisions, the Criminal Justice Act 1991 contained, in its original s 29(1), a prohibition on the use of previous convictions in the determination of sentences for current offences. This particular provision was the subject of much criticism before and after its coming into effect, so much so that within a year of its implementation it was replaced by a new section which, arguably, could have precisely the opposite effect. What follows is an attempt to chart the short life and sudden death of the original s 29( 1). The importance of such a prohibition to a 'deserts-based' sentencing framework will be discussed and some possible explanations for its removal will be suggested. Some of the implications of the change will also be examined, both in terms of its impact on the coherence of the sentencing framework that remains, and its possible impact on future sentencing trends.

Type
Research Article
Information
Legal Studies , Volume 14 , Issue 3 , November 1994 , pp. 295 - 312
Copyright
Copyright © Society of Legal Scholars 1994

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References

2. DA Thomas Sentencing News (1993) Issue 3 p 12. Wasik and von Hirsch, however, argue that the amended s 29 should not have this dramatic effect: ‘Section 29 Revised: Previous Convictions and Sentencing’ [1994] Crim LR 409.

3. ‘Crime, Justice and Protecting the Public’ (London: HMSO, 1990) Cm 965.

4. A General Guide to the Criminal Justice Act 1991 (Home Office, 1991a) para 2.25; Criminal Justice Act 1991: Custodial Sentences and the Sentencing Framework (Home Office 1991b) para 13.

5. Official Report SC A, 11 December 1990, col 164.

6. Fletcher Rethinking Criminal Law (Boston: Little, Brown, 1978) p 463–46; Singer Just Deserts: Sentencing Based on Equality and Desert (cambridge, Mass: Ballinger, 1979)ch 5.

7. Von Hirsch, A. Doing Justice: the Choice of Punishment (New York: Hill and Wang, 1976 Google Scholar); von Hirsch, ‘Desert and Previous Convictions in Sentencing’ 65 Minnesota Law Review 591 (1981); von Hirsch Pust or Future Crimes, Deservedness und Dangerousness in the Sentencing of Criminals (Manchester Up, 1985); Wasik and von Hirsch op cit n 2 above.

8. Von Hirsch (1981) op cit n 7, pp 595–604; von Hirsch (1985) op cit n 7, p 83; see also RA Duff Trials and Punishments (Cambridge UP, 1986). ch 9.

9. Von Hirsch (1985) op cit n 7, p 83.

10. Von, Hirsch Criminal Record Rides Again 10 (2)Google ScholarCriminal Justice Ethics (1991)2, at 56.

11. Von, Hirsch (1985) Op cit n 7, pp 82–83 Google Scholar

12. Thomas, D.A. Principles of sentencing (London: Heinemann 2nd edn, 1979) p 41.Google Scholar

13. Rv Connolly [1959] Crim LR 530.

14. DPP v Ottewell (1968) 52 Cr App R 679, per Lord Reid at p 685 and Lord Donovan at p 688.

15. See, for instance, Galloway (1979) 1 Cr App R (S) 311; Walsh (1980) 2 Cr App R (S) 224; Bailey (1988) 10 Cr App R (S) 231; and see commentary by David Thomas on the Galloway case [1980] CrimLR 116.

16. Home Office op cit n 3 para 2.18, referring to Queen (1981) 3 Cr App R (S) 245.

17. M Wasik and RD Taylor Blackstone's Guide to the Criminal Justice Act 1991 (London: Blackstone, 1991) pp 27–28; Thomas ‘Criminal Justice Act 1991 Custodial Sentences’ [1992] Crim LR 235.

18. R v Bexley, Summers und Harrison (1993) 14 Cr App R(S) 462, at 465; see further n 22 and accompanying text.

19. The Times, 24 March 1993, reporting comments made the previous morning on the BBC's Today programme.

20. Wasik and Taylor, op cit n 17 above, p 36; Ashworth, A. Sentencing and Criminal Justice (London: Weidenfeld & Nicolson, 1992), pp 151,157Google Scholar; Home Affairs Committee, Sixth Report Session 1992-93, per Sir Ivan Lawrence, Q 382; and see the leader column in The Times 23 March 1993.

21. HC Offcial Report SC B, 17 June 1993, col 273; report of a speech by Lord Taylor CJ to the Scottish Law Society, The Times, 22 March 1993; comments by the Chair of the Magistrates' Association, The Times, 30 September 1992; HC official Report 29 June 1993, vol227, col 913, per Mike O'Brien MP ‘The Labour Party takes the view that sections 29 and 1 are a straitjacket on the courts’.

22. Seen 18, above.

23. Ibid p 465.

24. A similar line of reasoning was applied by the Court of Appeal shortly afterwards in Reynolds (1993) 14 Cr App R (S) 694, a case which also reconfirmed that lack of prior conviction could operate as mitigation, excusing defendants from receiving the full sentence otherwise commensurate with their offending.

25. This is akin to von Hirsch's early position on the justification for taking past ofences into account: (1976) op cit n 7, pp 85–6. He was later to describe it as ‘insufficient’ following criticisms by Fletcher, among others: von Hirsch (1981) op cit n 32, p 594; Fletcher op cit n 3, pp 461–466.

26. Ashworth op cit n 20, pp 149–152.

27. Above, n 14.

28. N Walker Sentencing: Theory Law and Practice (London: Butterworths, 1985) p 119.

29. ME Frankel Criminal Sentences: Law without Order (New Yok Hill & Wang, 1972).

30. The Minister of State at the Home Office also expressed some scepticism on this point during the passage of the 1991 Act through its committee stages: HC official Report SC A. 11 December 1990, col 163.

31. Ashworth op cit n 20, p 150.

32. (1983) 5 Cr App R(S) 17.

33. (1979) 1 Cr App R(S) 31l.

34. See eg the doubts cast by Mike O'Brien MP, HC Official Report 29 June 1993 vol 227, col 913.

35. Ibid at 312.

36. (1980) 2 Cr App R(S) 312.

37. (1993) Journal of the Law Society of Scotland 129.

38. The Times, 30 September 1992.

39. Walker op cit n 28, p 44 at n 1. Some limited empirical evidence supporting this assertion is found in S Fairhead Persistent Petty Offenders Home Office Research Study No 66, (1981). ch 5. Home Office research studies of sentencing in the magistrates' courts and the Crown Court have also found positive correlations between seventy of sentence and previous conviction, although neither study provides any conclusive evidence on whether this correlation arises from a progressive loss of mitigation or a breach of proportionality constraints: Tarling, R. Sentencing Practice in the Magistrates' Courts HORS No 56 (London: HMSO, 1979 Google Scholar); D Moxon Sentencing Practice in the Crown Court HORS No 103 (London: HMSO, 1988).

40. Wasik and Taylor op cit n 20, p 34.

41. Home Office A Survey of the South East Prison Population (Home Office Research Bulletin No 5, London: HMSO, 1979) pp 12–24.

42. Upton (1980) 71 Cr App R 102, per Lord Lane CJ at 104; see also Bibi, ibid 360 at 361.

43. Home Office op cit n 3, para 4.3; Home Office 1991 a op cit n 4, para 4; article by David Faulkner, former deputy secretary at the Home Office The Times, 11 May 1993.

44. Ashworth, op cit n 20, pp 144–146.

45. Op cit n 18 above, p 465.

46. Home Office op cit n 3. para 2.16.

47. Home Official Statistical Bulletin 25/93. This trend has been reversed since the amendment of the Act. Between February and November 1993 the prison population in England and Wales rose from 41,000 to 47,388,676 above the system's certified capacity The Guardian, 25 November 1993. By February 1994 the prison population was said to be rising by 350 prisoners each week The Guardian, 8 February 1994, p 5.

48. See e g the evidence of Judge and Curtis JJ to the Home Affairs Committee, Sixth Report Session 1992-93, Ev p 264-270; The Times, 30 September 1990, report of a speech by Lord Taylor CJ.

49. An opinion poll reported in the Guardian put the Labour Party slightly ahead of the Conservatives in popularity with the voters for the first time on the issue of law and order, The Guardian, 3 March 1993.

50. The Guardian, 20 February 1993.

51. The Times, 23 March 1993.

52. M Wasik and A von Hirsch ‘Statutory Sentencing Principles: the 1990 White Paper’ (1990) 53 MLR 508.

53. M Wasik ‘Guidance, Guidelines and Criminal Record’ in M Wasik and K Pease (eds) Sentencing Reform: Guidance or Guidelines? (Manchester UP, 1987) p 114.

54. Ibid pp 121–122; von Hirsch (1976) op cit n 7, p 87; von Hirsch (1981) op cit n 7 pp 609, 617 et seq; von Hirsch (1985) op cit n 7 p 84; von Hirsch (1991) op cit n 10, p 56.

55. There is, indeed, judicial precedent in support of this view for, as long ago as 1980, the Court of Appeal declared in Loosemore (1980) 2 Cr App R (S) 172 that a court should deal with a defendant on the basis of his offence, and not on the basis of his ‘feckless character and general behaviour’.

56. On this see eg, the discussion and reference to some of the empirical studies in Ashworth, op cit n 20 above, p 158–62.

57. Statement by the Home Secretary on 11 June 1993, reported in NACRO Criminal Justice Bulletin No 77, p 17.

58. Lord Taylor CJ, address to the Annual General Meeting of NACRO, 11 November 1993.

59. Opcitn 18, p 470.

60. Criminal Justice Act 1991, s 29(2) as amended by the Criminal Justice Act 1993, s 66(6).

61. Op cit n 2.

62. As it did explicitly in R v Gifberrson loc cit n 32.

63. Home Office 1991a, op cit n 4, para 3.

64. Home Office, op cit n 3, para 2.15.

65. Section 1(2)(b), 2(2)(b); Home Office (1991a) op cit n 4, para 4.

66. R v Clarke (1975) 61 Cr App R 320, 323.

67. HC Official Report SC B, 17 June 1993, col 280.

68. Von Hirsch' s scheme attempts to accommodate these sentiments in a way that reduces but does not increase proportionate sentences.

69. As to the supposed link between this claim and ‘common sense’ see the comments of the Chairman of the Home Affairs Committee, Sixth Report 1992-93, Q 327.

70. See the comments of the Minister of State at the Home Office, HC Official Report SC B, 17 June 1993, col 279; see also comments to the same effect made during the preparation of the 1991 Act by the then Home Secretary: The Times, 17 October 1990, p 8.

71. Von Hirsch (1985) op cit n 7, p 80; Fletcher op cit n 3, pp 463–466.

72. Alun Michael MP, HC Official Report 153 SC A, 11 December 1990, col 53.

73. John Patten MP ibid col 163.

74. As amended by Criminal Justice Act 1993, s 66(6).

75. HC Official Report SC B 17 June 1993, col 270–289.

76. HC Official Report SC, 29 June 1993, vol 227, col 903 et seq. Somewhat paradoxically, the Labour Party were critical of the original ss 1 and 29 because they did not ‘properly protect the public, reduce reoffending, or provide a deterrent’, ibid 913. However, since their principal amendment would have retained the supremacy of desert over crime prevention in sentencing, it is unlikely to have addressed the particular failings they had identified.

77. Per David Maclean, HC Official Report SC B, 17 June 1993. col 281.

78. David Maclean, HC Official Report SC B, 17 June 1993, col 276.

79. bid col 281.

80. bid col 276.

81. Home Office Circular 38/1993

82. Per Kenneth, Clarke, HC Official Report SC, 13 May 1993, vol 224 c 939Google Scholar.

83. Op cit n 2.

84. A Ashworth and B Gibson ‘The Criminal Justice Act 1993: Altering the Sentencing Framework’ [1994] Crim LR 101.

85. (1993) Journal of the Law Society of Scotland 129.

86. Ashworth and Gibson op cit n 84, p 105–106.

87. The relationship between judicial utterances, public opinion and authoritarian social control is far from unproblematic; see: S Hall et al, Policing the Crisis (London: Macmillan, 1978) pp 74–77 and ch 6.

88. Lord Taylor CJ speaking at his first press conference on 29 September 1992, reported in retrospect in The Times, 23 March 1993.

89. See eg Walker, N. & Hough, M. (eds) Public Attitudes to Sentencing (Aldershot: Gower, 1988 Google Scholar) chs 7,10–11; P Mayhew The British Crime Survey HORS No 76 (London: HMSO, 1983) p 28; M Hough and H Lewis' Attitudes to Punishment: Findings from the British Crime Survey’ in D Pennington and S Lloyd-Bostock The Psychology of Sentencing (Oxford Centre for Socio-legal Studies, 1987). There is some suggestion in the 1992 British Crime Survey that an increased level of reporting of crime may be explicable in term of a lower tolerance of criminal activity, but this remains speculative: Mayhew, P. , Maung, N. Aye and Mirrlees-Black, C. The British Crime Survey 1992 (London: HMSO, 1993 Google Scholar) ch 3. For a principled criticism of this fictional standard, see the editorial in Criminal Law Review for March 1994.

90. Von Hirsch (1976) op cit n 7, p 75; draining just deserts is not, of course, the only Objective for sentencing, even within the 1991 framework. Home Office 1990 op cit n 3, para 2.9.

91. Von Hirsch (1976) op cit n 7, p 126.

92. Von Hirsch op cit n 10. p 56.

93. Von Hirsch (1981) op cit n 7, p 630 Lord Windlesham Responses to Crime (Oxford Clarendon Press, 1993) vol 2 p 467.

94. Sections 1(4)(a),2(3)(a).

95. Compare recommendations vii, ix and x of the Howard League Working Party on dangerous offenders: Floud, J. and Young, W., Dangerousness and Criminal Justice (London: Heineman, 1981 Google Scholar).

96. Ashworth op cit n 20, pp 150, 157–8.

97. Walker op cit n 28, p 106.

98. Not everyone would agree, of course. See eg Cavadino, P. The Magistrate (1992) 48(9) 177–178Google Scholar, A Turner The Times, 11 May 1993, p 29.

99. Frankel op cit n 29.

100. Von Hirsch (1981) op cit n 7, p 629.