Sentencing Provisions of the Criminal Justice Act of 2003 - Article Example

Sentencing Provisions of the Criminal Justice Act of 2003 Introduction: The focus of this essay is the sentencing process and how it is impacted bythe guilty plea. The sentencing decision is however, the culmination of a long and complex criminal justice process that begins when a person is arrested or summoned for an offence. Decisions taken prior to the sentencing process will impact upon the final outcome in any case. Determination of guilt is one of the most important of these, because a lea of guilty may mitigate the sentence. Additionally, since crimes have now become media highlighted subjects, there is often a great deal of publicity attached to the outcome of such cases, which has contributed to the political sensitivity now associated with the subject of crime, with political parties pitting themselves against each other, to be viewed as the protectors of law and order. As a result, there has been considerable political input into the criminal justice process, notably through sentencing guidelines, in response to pressure from the public fuelled by high levels of media attention to crime. In striving to achieve the balance between the need to control crime and the need to ensure that the rights of individuals are preserved to uphold the legal principle that every criminal suspect is innocent until proven guilty, sentencing guidelines in the Criminal Justice Act of 2003 may need to be improved upon, because they may not necessarily be serving the interests of justice in every instance. Criminal models: The criminal justice system may be analyzed in the context of two different models: (a) the due process model and (b) the crime control model, both of which impact differently upon the manner in which criminals are punished under the system1. The focus of the due process model is upon the individual citizen, which produces a corresponding emphasis on the need to reduce the powers of officials such as the police so that they do not abuse their position through their widespread use of their coercive powers over individuals who are suspects in any crime. As a result, at every stage of the criminal justice process, there must be formal safeguards established in order to protect the rights of those suspected of committing a crime. The crime control model on other hand adopts a different view and control of criminal conduct is the ultimate objective to be achieved. The assumption under this system is that society must operate as efficiently as possible in order to achieve the goal of crime control. Police officers and Prosecutors are viewed as the ideal agents to screen out those who are innocent rather than relying upon court proceedings to achieve the same goal, or allowing a higher degree of importance to the rights of suspects to challenge the criminal justice process if it is found to be oppressive. The crime control model therefore allows for extra judicial proceedings to also be incorporated, such as entering guilty pleas from defendants in order to speed up the trial process. Saunders and Young offer the view that while many of the provisions in several criminal justice Acts including PACE and the CJA 2003 would appear to reflect a due process model, in terms of actual practice, the system appears to function on the basis of several of the characteristics of the crime control model. Where the question of stop and search powers are concerned for example, they state: "Stop and search in its operation corresponds far more closely to the crime control model than the due process model to which the law is purportedly orientated."2 The crime control model would also be centered upon a punitive model of justice, where criminals are punished for their crimes and may serve to satisfy the need for punishment raised by public perception about the extent of heinousness of a crime. The due process model on the other hand, would adopt a more restorative form of justice, where harm and redress are emphasized, so that there is a greater focus upon rehabilitating offenders and ensuring that they compensate the victims for the injuries or losses they have suffered.3 Sentencing may play less important a role in the restorative justice process; however, under the principles of the Criminal Justice Act of 2003 detailed further below, rehabilitation of offenders and reparation for their offences has also been included among the goals that are sought to be achieved through the new sentencing principles under the Act. The sentencing problem: Sentencing is the method that is used by the State, functioning through a Court of law, to impose a punishment upon an individual who has been found guilty of a crime. "When a Court passes sentence, it authorizes the use of state coercion against a person for committing an offence."4 But as Ashworth5 also points out, only about two percent of crimes actually end up with a criminal sentence being imposed, which raises some doubts about the efficiency of the criminal justice system and whether sentencing has any effect at all on the crime rates. Despite this however, sentencing has an important social function in that it represents public intolerance of criminal conduct. Sentencing policy in recent years had been directed towards coping with two contradictory pressuring factors in the environment. Since the prison populations have been exploding in recent years, Governments have been looking into other means to control crime and reduce prison populations at the same time, such as introducing community sentences and making them tougher so that function as preventive tools. On the other hand, there is a constant pressure from public hue and outcry resulting from high crime rates and the call for Government to do something about cracking down on such increasing crime rates by being tough on criminals through sentencing. In order to tackle these conflicting objectives, the Government has focused adopted a dual approach - firstly, sentencing hardened criminals to harsher sentences and secondly, allowing lesser criminals to serve community sentences to reduce the prison population. This represents the effort to introduce the principle of bifurcation into sentencing policy by matching the severity of the sentence with the heinousness of the crime, although the extent to which this objective is being attained is questionable, as detailed further below in the next section. In this context, applying the criminal justice models discussed above, it would appear that an application of the crime control of criminal justice would best serve the public pressure for prosecution of criminals. This model also allows for the use of extra judicial proceedings such as entering the guilty plea to resolve the nature of sentencing. The current sentencing guidelines existing under the Criminal Justice Act of 2003 do however raise some questions about the efficiency of the criminal justice process and whether in fact, true justice may actually be achieved in most cases. The Sentencing Framework and associated problems: One of the major purposes in the framing of the Criminal Justice Act of 2003 was to formulate a clear, consistent and appropriate sentencing framework. The major provisions on the sentencing of offenses are contained in Part 12 of the Act. Before issuing a sentence, a trial Court is expected to take into consideration the purpose behind sentencing, which is to ensure that members of the public are protected, crime is reduced and that offenders are punished, rehabilitated and make reparation for their offences.6 The statutory purpose of reparation demonstrates Governmental purpose in rebalancing the criminal justice system in such a manner that it is more in favor of the victims while at the same time, remaining fair to the offenders and ensuring that their rights are protected.7 The most important aspect in determining what kind of a sentence is to be issued as well as its length and amount, is the seriousness of the offence8. The offence will be considered in the context of any aggravating or mitigating factors which exist, which will be applied in order to arrive at a final, proportionate outcome. When arriving at a determination about the seriousness of the crime, the Court is required to consider (a) the culpability of the offender in committing the offence (b) extent of harm or risk caused by, or intended to be caused by the offence (c) whether any recent and relevant previous convictions exist, or if offence was committed while on bail, both of which will constitute aggravating features that will increase the seriousness of the sentence9. Sentences that fall under the category of a third Class A trafficking offence or third burglary can be lessened up to 20% by the offender entering in a guilty plea10. The Sentencing Guidelines Council (SGC) set out all the advantages inherent in the reduction in sentence for a guilty plea in its final guideline issued on the 16th of December, 2004, as follows: "A reduction in sentence is appropriate because a guilty plea avoids the need for a trial (thus enabling other cases to be disposed of more expeditiously), shortens the gap between charge and sentence, saves considerable cost, and, in the case of an early plea, saves victims and witnesses from the concern about having to give evidence."11 But this does not automatically impute an assumption that all offenders who admit a plea of guilty for their crimes will be entitled to a 20% reduction in sentence. The Criminal Justice Act clearly states that in arriving at a determination of what sentence is to be passed on an offender who pleads guilty to an offence, the Court must take into account "(a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty and (b) the circumstances in which this indication was given."12 The possibility of a reduction in the severity and duration of a sentence is set out under Section 144(2) and approximates to a level at about 80%of the fill sentence. As noted above, one of the major objectives of the Criminal Justice Act of 2003 is to ensure that offenders are rehabilitated and make reparation for their crimes, because in the long run, this may be the only way by which the incidence of crime in society can be reduced. In order to achieve this goal, the Act provides that "the court must not pass a custodial sentence unless it is of the opinion that the offence'.was so serious that neither a fine alone nor a community sentence can be justified for the offence."13 At the outset this would limit the number of offenders being sentenced to prison by reserving sentencing only for the worst offenders. But the possibilities provided under the Act for reduction in the severity and length of a sentence on the basis of a guilty plea raises the question of whether this is indeed likely to bring about this desired effect of rehabilitation of offenders, due to the remorse that the offender feels because of the crime s/he has committed. Retired District Judge Paul Firth notes that according to the Guidelines set out by the Sentencing Council, the primary objective in reducing the sentence does not appear to be geared towards awakening remorse in the offender, because a guilty plea in itself, is no longer necessarily an indication of remorse.14 Reducing sentences is rather justified on the basis of the savings in costs that it can bring about as well as reductions in levels of distress associated in the case. Firth questions how valuable such savings are likely to be when pitted against the loss in credibility of the criminal justice system by allowing reduced sentences to offenders. In this context, he describes the case of R v French15 in which a child rapist was sentenced to only six years. This raised a hue and outcry from the public, where judges were accused of being soft in allowing such a reduced sentence to an individual who had committed such a grievous crime. But in this case, the sentencing judge pointed out that the defendant had entered a guilty plea right at the outset, during the stage of the preliminary hearing itself. Hence, the Sentencing Guidelines required him to deduct one third from the sentence that he would have imposed under normal circumstances, had he not been imposing an indeterminate sentence. Sir Igor Judge expresses the view that sentencing of a fellow human being is an art and a skill rather than a skill, which is why judicial discretion plays a very important role in the outcome.16 Since sentencing policies are often determined in the context of public expenditure, Firth points out that there is a need for greater transparency in sentencing options and the circumstances in which each option is used. This would help to balance the public desire for punishment of criminals and costs associated with it against the goals of the Act which is to enhance public protection through rehabilitation of criminals17. The sentencing guidelines on the guilty plea appear to be primarily motivated by the desire to reduce costs through the elimination of a trial and its concurrent costs, but as the case of R v French18 showed, reduction of a sentence may not be appropriate in every case and may seriously undermine the credibility of the criminal justice system. The Sentencing Guidelines have set out a sliding scale on the basis of which level of reduction in the sentence is to be assessed, maintaining that it must be a proportion of the total sentence imposed, where the proportion will be determined on the basis of which stage of the proceedings the guilty plea was entered. The maximum reduction in sentence, i.e, one third of the sentence will be allowed when the guilty plea is entered at the first reasonable opportunity, which will reduce to one quarter of the sentence if the guilty plea is entered when the trial date has been set and one tenth when the plea is entered after the trial has already commenced.19 This was the basis upon which the sentencing judge in the case of R v French arrived at the sentence of six years. The reasoning behind the differences in the levels of reduction in levels of sentencing is that the earlier the defendant enters the guilty plea, the greater the savings that are achieved in terms of costs. But Firth points out the dichotomies that exist in determining reductions in sentence when the defendant does not plead guilty at the initial stage of his or her own volition, rather the evidence against them may be so overwhelming that there is little option but to enter in a guilty plea20. While there was initial agreement that sentences should not be allowed the maximum reduction of a third in those instances where overwhelming evidence establishing guilt existed, this belief was not reflected in the final guidelines that were issued by the Sentencing Council. The justification offered in not reducing the credit due on the sentencing period was that it could function as a disincentive to defendants in pleading guilty. The net effect of such a guideline however is that contrary to the views of Sir Igor Judge cited above21 that judicial discretion plays a role in determining the appropriate sentencing for a crime, it is the direction provided by the guideline that has become the prime mover in determining sentences. For example, this direction was applied in the case of R v Gisborne22 where the Court of Appeal stated: "The case against the appellant was utterly overwhelming as the judge recognised. But, in the light of para 5.2 of the Guideline issued by the Sentencing Guidelines Council in December 2004, the strength of the prosecution case should not, in itself, be regarded as a reason for reducing the discount otherwise appropriate for a prompt plea of guilty. As this appellant pleaded guilty at the first available opportunity, she was entitled to a discount of one third from the sentence which would have been appropriate following a trial." The question of juridical discretion therefore appears to have a limited scope of exercise and it is likely that the sentencing guidelines will dictate the length and duration of sentences when a guilty plea is entered. This would also automatically reduce the scope for punishment and in some instances may produce a verdict that would not necessarily be fair, such as the case of R v French cited earlier. When offenders are provided the opportunity to reduce their sentences by entering a guilty plea, the extent and severity of the punishment they receive may not necessarily be restrictive enough or strong enough to ensure adequate punishment to serve as a deterrent from committing another crime. When judicial discretion is allowed to play the salient role in sentencing, it is possible for a Judge to determine the severity and duration of the punishment in accordance with the circumstances of each individual case, rather than being bound by the guidelines. Conclusions: In view of all the submissions that have been made above, it may be noted that the Criminal Justice Act of 2003 may have introduced some clarity into sentencing by clearly setting out the principles on the basis of which sentencing decisions are to be made, especially when a guilty plea is entered. The Sentencing Guidelines have clearly stated the extent of reductions that are possible based upon the time frames within which the guilty pleas are registered. But such clarifications have been achieved by reducing the extent of judicial discretion that remains operational in a criminal case. In several instances, as detailed in the opinion on the R v Gisborne case cited above, sentences may need to mandatorily be reduced through the application of the sentencing guidelines even in those instances where there is overwhelming evidence of the defendant's guilt and the need for punishment. In such an instance, defendants may have no option other than to enter a plea for guilty at the earliest opportunity because they know the evidence is stacked against them. But this simultaneously restricts the severity of the punishment that can be levied against them. This may not necessarily serve the cause of justice or satisfy the public sentiment for strong punishment for such offenders. Bibliography * Ashworth, A. and Redmayne, A. (2005) The Criminal Process. Oxford University Press * Ashworth, Andrew, 2002. "Sentencing" IN McGuire, M, Morgan, R and Reiner, R (edn) "The Oxford Handbook of Criminology" , Oxford University Press * Firth, Paul, 2007. "The art of sentencing", 157 New Law Journal, 1748 * Firth, Paul, 2006. "Special Offer - one third off", 156 New Law Journal 1278 * Gibson, Bryan and Watkins, Michael, 2004. "Criminal Justice Act of 2003: A Guide to the new procedures and Sentencing", Waterside Press * Joyce, Peter, 2006. "Criminal Justice: An introduction to Crime and the Criminal Justice System", (fourth edition) Oxford: Clarendon Press * Keogh, Andrew, 2003. "Sentencing after the Criminal Justice Bill, 153, New Law Journal, 7069 (289). * Sanders, A. and Young, R. (2007) Criminal justice (third edition). Oxford: Oxford University Press * Sentencing Guidelines Council (Reduction in sentence for a guilty plea), http://www.sentencing-guidelines.gov.uk/docs/reductionforguiltypleas.pdf * Criminal Justice Act of 2003. http://www.opsi.gov.uk/acts/acts2003/ukpga_20030044_en_14#pt12-ch1-pb1-l1g142, Cases cited: * R v French EWCA Crim 1335 * R v Gisborne (2005) EWCA Crim 2491 Read More