Punishment and rehabilitation – Uneasy bedfellows under section 44 of the Crime and Courts Act 2013
| DOI | 10.1177/0004865816638908 |
| Published date | 01 September 2017 |
| Date | 01 September 2017 |
| Author | Elaine AO Freer |
| Subject Matter | Articles |
Australian & New Zealand
Journal of Criminology
2017, Vol. 50(3) 439–455
!The Author(s) 2016
Reprints and permissions:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/0004865816638908
journals.sagepub.com/home/anj
Article
Punishment and rehabilitation –
Uneasy bedfellows under
section 44 of the Crime
and Courts Act 2013
Elaine AO Freer
Barrister, Chambers of M Moore QC and J Christopher QC,
London, UK
Abstract
Over the last 25 years, community sentences have evolved significantly. However, throughout
this period there has been a consistent theme of rehabilitation underpinning them. Section 44
of the Crime and Courts Act 2013 has set out, the author argues, to alter this by requiring
that a punitive element is attached to a Community Order given under s177 Criminal Justice
Act 2003 unless to do so would be ‘unjust in all the circumstances’. Considering the types of
offenders for whom community penalties have been shown to be particularly useful in redu-
cing recidivism, and the potentially high threshold of ‘unjust in all the circumstances’, it is
argued that this requirement will compromise the strengths previously exhibited by
Community Orders and considers why such a requirement may have been added.
Keywords
Community sentences, punishment, rehabilitation, sentencing, sentencing rationales
Introduction
Most jurisdictions recognise an alternative to custody when dealing with offenders who
have been convicted of crimes. In many countries, one such non-custodial option is a
community-based sentence. These often involve one or more elements such as unpaid
work, supervision and treatment. This article focuses on the current position in England
and Wales, as a new piece of legislation requiring a punitive element in such community
orders (COs) has recently been introduced, making it a timely ‘case-study’. However, the
issues raised in this article are relevant on a theoretical level to all jurisdictions where
COs are used. In Australia, community-based orders vary from state to state. However,
in all their incarnations, they are very similar to those in England and Wales both in
form and aim, hence the interest in these matters to an international audience.
Corresponding author:
Dr Elaine AO Freer,Chambers of Miranda Moore QC and Julian Christopher QC, 5 Paper Buildings, Temple, London
EC4Y 7HB, UK and College Teaching Officer in Law, Robinson College, Cambridge, UK.
Email: ef269@cam.ac.uk
For example, in New South Wales, the Community Service Order requires the offen-
der to do an amount of unpaid work commensurate with the crime committed.
1
It may
therefore be argued that New South Wales employs a relatively ‘punitive’ encapsulation
of a CO. The Court will use the criteria listed under s86 Crimes (Sentencing Procedure)
Act 1999 (NSW) to decide whether an offender is suitable for such an Order. In Western
Australia, there are three possible components to a community-based Order; supervi-
sion, a programme and community service.
2
An order must contain at least one of
these, but need not contain all three; thus, there is the possibility of a ‘non-punitive’
community-based order in that state.
A brief overview of the last 25 years in England and Wales shows how community sen-
tences have evolved, highlighting a shift from a focus on rehabilitation and treatment towards
a greater focus on punishment. This interest in punishment has peaked, this article argues,
with s44 of the Crime and Courts Act 2013, which requires all COs in England and Wales to
contain a punitive element unless there are exceptional circumstances.
First appearing in the Criminal Justice Act 1991, COs saw important changes in the
Powers of Criminal Courts (Sentencing) Act 2000 and the Criminal Justice and Court
Services Act 2000, before an even more dramatic makeover in the Criminal Justice Act
2003, which moved from the six different orders available under the 1991 Act, to one
single CO to which any of 12 requirements could be added. This remains the legislation
in force at the present time, but the largely overlooked amendment courtesy of s44 of the
Crime and Courts Act 2013 does, this article argues, raise questions about the aims and
purpose of a CO. Section 44 brings into force Schedule 16, which contains the require-
ment that at least one of the requirements attached to a CO is punitive, unless there are
exceptional circumstances. This article explores what the introduction of this punitive
element alters, if anything, about the nature of a CO. The author seeks to explore what
community sentences are seeking to achieve, through examining their history, wider
legislative context and aims before setting out some of the arguments both in favour
of and against a compulsory punitive element. The article argues that at least some of the
purposes of a CO will be inhibited by the amendment requiring a penal element, and that
there are particular groups of offenders who may be disproportionately negatively
affected by the requirement for such an element.
A brief history
Over the years, COs have undergone many changes. Without charting their entire his-
tory, a condensed overview is nonetheless helpful.
The Criminal Justice Act 1991 provided for six different COs. Sections 6(4)(a) to (f)
contained the possibilities, which were a probation order, a community service order, a
combination order, a curfew order, a supervision order and an attendance centre order.
The combination order allowed any of those six to be combined, apart from a probation
order and a community service order (s6(3)), a combination that was dealt with separ-
ately under s11. Under s11, those two elements could only be combined for persons of
16 or over, convicted of an offence punishable with imprisonment (not being an offence
for which the sentence is fixed by law). Under such circumstances, the supervision had to
be not less than 12 months nor more than three years; and the unpaid work requirement
had to consist of not less than 40 nor more than 100 hours.
440 Australian & New Zealand Journal of Criminology 50(3)
To continue reading
Request your trial