Criminal Justice Act 2003: The Sentencing Provisions
| Published date | 01 September 2005 |
| Author | Andrew Ashworth,Elaine Player |
| DOI | http://doi.org/10.1111/j.1468-2230.2005.00562.x |
| Date | 01 September 2005 |
Criminal Justice Act 2003:The Sentencing Provisions
AndrewAshworth
n
and Elaine Player
nn
THE CONTEXT IN THE LAST DECADE
The1990s beganwith the enactmentof the ¢rst general sentencingstatute forover
40 years: theCriminal Justice Act1991.The broad purpose of the Act was tobring
about a form of proportionality in s entencing ^ recognisi ng a hierarchy of pen-
alty levels, from ¢ne up to community sentences and thenceto custody;requiring
a judgement of seriousness before ¢xing the penalty level; reserving custodialsen-
tences forserious cases; but, byway ofexception tothe general principle, allowing
for longer-than-proportionate s entences for o¡enders thought to present a danger
of serious harm. These objectives were set out fairlyclearly in theWhite Paper of
1990,
1
but the drafting of the1991Actwas less clear.Some provisions, suchas those
on previous convictions, were drafted in such a technical and unfriendly manner
as to generate judicial oppo sition. Other provisio ns were not direct in th eir
expression: whereas the White Paper made it plain that proportionality should
be the touchstone, the Act fell short of declaring such a principle.The provision
on the length of prison sentences stated only that sentences should be ‘commen-
surate with the seriou sness of the o¡e nce,’ and thi s was not enough to prevent the
then Lord Chief Justice from distorting the provision by construing it to mean
‘commensurate with the punishment and deterrence which the seriousness of the
o¡ence requires.’
2
Within months of its introduction, parts of the structure of
the 1991 Act were dismantled (unit ¢nes abolished, greater discretion to take
account of previous convictions). In the years that followed theAct subsided into
the background,its main provisionsrarely evencited in sentencing judgments, its
in£uence barely perceptible.
One reason for this was a stark change of penal climate. The killing of James
Bulger in early1993 and the appointment of Michael Howard as HomeSecretary
later that year led both the press and politicians to call for tougher sentences.
Howard proclaimed that ‘prison works,’ whereas in 1990 the same government
had described prisonas ‘an expensive way of makingbad people worse.’
3
Tougher
measures were brought in, although when Howard proposed the introd uction of
mandatory sentences the senior judiciary rose up in open disagreement with the
policy and (at the House of Lords stage) forced amendments to what became the
n
Faculty of Law and Centre for Criminology, Universityof Oxford.
nn
Law School,Ki ng’sCollege London.
1HomeO⁄ce,Crime, Justice and Protecting thePublic (London: HMSO,1990).
2Cunningham (1993) 14 Cr AppR (S) 44 4,at 447 (our italics).
3 Home O⁄c e, n1 above, para 2.7.
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Crime (Sentences) Act1997.
4
A newgovernmentthen brought inthe Sentencing
Advisory Panel to generate fullerguidance for sentencers:
5
the Panel submitted its
advice tothe Court of Appeal, which retained the power not to act on the advice
or to amend it before issuing a guideline judgment. In the event the Court of
Appeal has actedon almost all proposals from the Panel,
6
but some would say that
the most important pronouncements on sentencing have had other sources.Thus
Lord Woolf prefaced his well-known‘mobile phones’ judgment with the assur-
ance that it was not a guidel ine judgment, before proceed ing to lay down gui-
dance for s ente ncing robb ers, whether youths or n ot.
7
And in another non-
guideline case he called for the more sparing use of imprisonment for‘economic
o¡ences.’
8
Some sentencers and others felt that these pronouncements gave ‘mixed mes-
sages:’ even if there was a clear distinction between violento¡ences (robbery) and
non-violent o¡ences ( ‘economic crimes’), that was thought to have been put in
doubt whe n Lord Woolf departe d from SAP’s proposed sentenci ng levels on
domestic burglary by calling for the greater use of community sentences for cer-
tain ¢rst- and second-time burglars.
9
That judgment drew strong criticism from
David Blunkett as Home Secretary, from sections of the media and from some
sentencers.
10
Another site of con£ict between the Home Secretary and the Lord
Chief Justicewas the minimum termfor those sentenced tolife imprisonment for
murder. In 2002, as a result of judicial decisions in Strasbourg and in the House of
Lords,
11
the Home Secretary lost his power to alter the minimum term set by the
judiciary because he could not be regarded as an ‘independent and impartial tri-
bunal’for the purposes of Article 6 of the ECHR. Making much of the need to
protect the public, with a barely concealed view that the judiciary cannot be
trusted toprovide thatprotection,he declared his intentionto promote legislation
to require judges to impose minimum terms of given lengths. The judiciary
opposed this from the outset.
12
Yet it should not be supposed that the di¡erence
between Blunkett and LordWoolfcould be reducedto the question of sentencing
severity. For the judiciary, the issue has always been as much about preserving
‘their’ discretion; and even the then Home Secretary’s messages could be said to
be mixed, since he put his name to ajoint press release with the Lord Chancellor
calling for thegreater use of community sentencesfor non-violento¡ences,
13
and
4 For discussion of this period, see I. Dunbar and A. Langdon,ToughJustice (Oxford:Blackwell,1998);
A. Ashworth,‘The Decline of English Se ntencing’, in M.Tonry and R.Frase (eds), Sentencingand
Sanctions inWestern Coun tries (Oxford: Oxford UP, 2001); Lord Windlesham, Responses to Crime,
volume4 (Oxford: Oxford UP, 2001).
5 Crime and DisorderAct1998, ss 80^81.
6 The only exception being the Panel’s¢rst advice, on environmental o¡ences; for details of subse-
quent proposals and guideline judgments, see the Annual Reports available at www.sentencing-
guidelines.gov.uk
7Attorney-General’s ReferencesNos 4 and 7 of20 02, and Q [2002] 2 Cr App R (S)345
8 Ke¡ord [2002] 2 Cr App R (S)495;
9McInerneyand Keating [2003] 2 Cr App R (S) 240
10 See M. Davies and J.Tyrer,‘‘‘Filli ng in theGaps’ ^ a Studyof Judicial Culture’’,[2003] Crim LR 243.
11 Sta¡ordvUn ited Ki ngdom (2002) 35 EHRR 1121, RvHome Secretary, ex parteAnderson [2003] 1AC 837.
12 For a strong statement by the Lord Chief Justice, see M. Zander,‘LordWoolf’s Criticisms of Mr
Blunkett’s Criminal Justice Bill’, (2003)153 New LJ1264^65.
13 Lord C hancellor’s Department, press notice 194/02(June 2002).
Ashworth and Player
823rThe Modern LawReview Limited 2005
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