Compare and contrast the main principles of sentencing in the 1991 Criminal Justice Act and the Criminal Justice Act 2003. What are the strengths and weaknesses of the two Acts?

Compare and contrast the main principles of sentencing in the 1991 Criminal Justice Act and the Criminal Justice Act 2003. What are the strengths and weaknesses of the two Acts?

Introduction

At its roots, sentencing contributes to good order in society. It does so by visibly upholding society’s norms and standards; dealing appropriately with those who breach them; and enabling the public to have confidence in its outcomes Achieving a satisfactory level of public confidence is therefore an important goal of sentencing, and the framework for sentencing needs to support that goal. Other goals of sentencing are: (a) punishment (b) crime reduction and (c) reparation.
The literature on the justification of punishment has been extensive. The major trends so far have been in favour of either the utilitarian approach to sentencing i.e. rehabilitation or the liberal tradition i.e. just deserts. These theories are reflected in the sentencing goals expressed in the first paragraph.

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This short essay will critically examine the main principles underlying the Criminal Justice Act 1991 and the Criminal Justice Act 2003. In doing so, the paper will outline the main sentencing theories that influenced these two statutes, giving examples where these sentencing principles are reflected. Finally, the paper will outline the strengths and weaknesses of these Acts based on the sentencing principles they aim to address and the goals they aspire to reach.

The Criminal Justice Act 1991

The Act was introduced through the 1990 White Paper Crime, Justice and Protecting the Public, where the government stressed the need for more consistency in sentencing policy and for sentences to be proportionate to the offence. It was believed that the best way to achieve this was by reinforcing the already existent sentencing framework of just deserts. In one sentence, this requires that punishment is given in accordance with the current offence rather than past crime or possible future ones.

Consequently, the 1991 Act introduced several elements to promote this sentencing principle. For example, the Act introduced the unit fine system whereby sentencers allocated points that reflected the severity of the committed offence. These points were then related to the offender’s income and finances, producing a specific amount of the final fine. Another example can be found in Section 29, which prevented judges taking into account past convictions. Moreover, under the same Section, judges could only take into account two offences when assessing seriousness for a person convicted for multiple incidents.

Not surprisingly, the 1991 Act was amended only 7 months after its introduction. The unit fine system received severe criticism as the calculation for translating points into actual amounts meant that fines were higher. More importantly, sentences now appeared to be more severe for those on middle incomes typically convicted for traffic offences. Section 29, on the other hand, left sentencers unable to reflect the frequency and history of offending in their disposals.

The Criminal Justice Act 2003

In 2000, the Home Secretary announced a major review of the existing just deserts framework of sentencing. The announcement read: The review will examine the foundations of the 1991 Criminal Justice Act and explore the possibility of more flexible sentencing options which join up custodial and community penalties. The focus would be on maximising crime reduction by tackling repeat offending, sustaining public confidence, protecting the public and would take full account of the interests of victims.

The review, which was led by John Halliday, introduced a major shift in the way crimes are approached. Now, it was going to be less about just deserts and more about reducing reoffending. Halliday noted The key question for us to consider is whether a different legal framework to that currently established by the 1991 Act would facilitate better results, that is: preventing more crimes, causing fewer victims and creating greater public safety. These criteria must be the key tests for any changes.

Therefore the main recommendation of the review was that the existing just deserts philosophy should be modified by incorporating a new presumption that severity of sentence should increase when an offender has sufficiently recent and relevant previous convictions.

As a result, for the first time in the British criminal justice legislative history a statute defined the purposes of sentencing setting out the new framework to be used by future sentencers. In particular, Section 142 states: (1) Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing- (a) the punishment of offenders (b) the reduction of crime (including its reduction by deterrence), (c) the reform and rehabilitation of offenders, (d) the protection of the public, and (e) the making of reparation by offenders to persons affected by their offences.

The 2003 Act also introduced tougher sentences for serious crimes such as sexual and violent offences and murder. It also aimed to increase the use of community punishments believing that there should be enough alternatives to traditional custody so that the reduction of reoffending is maximised and the individual needs of offenders are better addressed.
The Act also introduced a number of radical changes in the law of evidence. For example, the common law rule rules governing the admissibility of evidence of bad character in criminal proceedings were abolished. In fact, it introduced a number of new rules again based on the theory that just deserts should be combined with the reduction of recidivism and the enhancement of rehabilitation. Overall, however, the Act is said to have left victims out of the criminal process while a number of its innovative features are rather questionable in terms of practicality. Like the 1991 Act, the 2003 Act is yet to prove its ability to achieve a satisfactory level of public confidence

Bibliography

House of Commons, The Criminal Justice Bill, Research Paper 02/76, 3 December 2002
Home Office (1990) Crime, Justice and Protecting the Public
Home Office press release, Home Secretary Announces Sentencing Framework Review, 16 May 2000
Home Office July 2001 http://www.homeoffice.gov.uk/cpg/halliday.htm
Wasik M (1993) The Magistrate, October

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