Sentencing drug offenders under the 2003 Criminal Justice Act: Challenges for the probation service
| Author | Paul Sparrow,Gill McIvor |
| DOI | 10.1177/1748895812448802 |
| Published date | 01 July 2013 |
| Date | 01 July 2013 |
| Subject Matter | Articles |
2012
Article
Criminology & Criminal Justice
13(3) 298 –316
Sentencing drug offenders
© The Author(s) 2012
Reprints and permissions:
under the 2003 Criminal
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/1748895812448802
crj.sagepub.com
Justice Act: Challenges
for the probation service
Paul Sparrow
Wolverhampton University, UK
Gill McIvor
University of Stirling, UK
Abstract
For the most part the 2003 Criminal Justice Act, which came into effect in England and Wales
in April 2005, was accepted by the probation service with relatively little opposition. Given the
enormity of its impact acquiescence to this degree of change ought to come as something of a
surprise. The 2003 Act changed fundamentally the nature of community supervision, it brought to
an end the traditional range of non-custodial penalties and replaced them with a single community
order to which sentencers could add any of 12 possible requirements. This article considers the
impact of the 2003 legislation on one particular offender group – drug misusers. Drug misusing
offenders have the potential to pose serious difficulties for probation officers; the habitual nature
of drug addiction and a tendency towards an irregular lifestyle make drug misusers particularly
susceptible to breach. Under the new legislation courts have significantly fewer options available
to them when responding to incidents of offender non-compliance. This article argues that many
of the provisions of the 2003 Act together with developments elsewhere in the UK are likely
to have impacted disproportionately on those groups whose lifestyles are chaotic and whose
routines are incompatible with the terms and conditions of modern day probation practice. It
concludes that greater flexibility towards non-compliance, supported by regular and consistent
judicial review, would encourage improved rates of compliance and retention in treatment and
improved outcomes for offenders.
Keywords
Criminal Justice Act 2003, drug misuse, enforcement, probation
Corresponding author:
Paul Sparrow, School of Law, Social Sciences and Communications, Wolverhampton University, Wulfruna
Street, Wolverhampton, WV1 1LY, UK.
Email: paul.sparrow@wlv.ac.uk
Sparrow and McIvor
299
Introduction
So far as the probation service is concerned, the introduction of the 2003 Criminal Justice
Act (CJA) appears, generally speaking, to have been a relatively quiet and trouble free
affair (but see Marston, 2010 and National Audit Office, 2008 for a discussion of impact
on workloads in particular). For anyone involved in the administration of criminal jus-
tice, and certainly for anyone who remembers the introduction of the 1991 CJA, this
ought to come as a surprise given the enormity of its impact. While there was at least a
modicum of disquiet when the Criminal Justice and Court Services Act 2000 changed the
titles of well-known sentences, the 2003 Act effectively brought an end to many of the
traditions associated with community-based sentencing. More specifically, and with
respect to community penalties, the 2003 Act replaced the traditional range of individual
community orders with one single order to which sentencers may attach any of 12 pos-
sible requirements.
There is much to say about the introduction of this Act and arguably even more to say
about the scarcity of academic comment that has accompanied this transformation in
probation practice (for exceptions see Fowles, 2006; Player, 2005; Von Hirsch and
Roberts, 2004). This article, however, focuses on just one aspect of the 2003 legislation,
namely the community supervision of drug misusing offenders. Drug misusers present
the probation service with a number of challenges; conventional wisdom suggests that
the inevitable escalation in the level of their criminality, combined with their propensity
towards a chaotic lifestyle and an inclination towards relapse, make them especially vul-
nerable to falling foul of the terms and conditions of supervision (Turnbull et al., 2000).
In previous incarnations criminal justice legislation has provided the courts with the
opportunity to issue offenders in breach of a community order with a fine or take no
action thus allowing the order to continue in its original form. In effect, courts had the
option to respond to recalcitrant offenders in a measured and moderate way and this was
particularly the case where offenders seized the opportunity to re-discover a commitment
to their order in the period between notification of breach and court action. The 2003 Act
significantly curtails the courts’ power in relation to breach action; courts must now
either re-sentence or add additional requirements to an order. Although these provisions
apply across the spectrum of offenders, this article suggests that drug misusers, because
of the precarious nature of recovery, are likely to be disproportionately affected by this
particular aspect of the Act.
Drug Misusers in the Criminal Justice System
While in reality the probation service has been working with drug users since at least the
mid-1960s (see Dawtry, 1968) it is only during the past few decades that this issue has
attracted any significant degree of attention. It was the arrival of HIV during the 1980s,
and more particularly its association with intravenous drug users, that pushed the issue
of drug using offenders into prominence and ultimately created the impetus for a new
model of practice. Driven by the fear that HIV had the potential to be transmitted to the
general population, all agencies engaging with potentially ‘risky’ groups were strongly
300
Criminology & Criminal Justice 13(3)
advised to implement a harm reduction strategy, and the probation service was certainly
no exception (Advisory Council on the Misuse of Drugs (ACMD), 1982, 1988, 1991).
The criminal justice system, along with other relevant agencies, was told, in no uncertain
terms, that ‘HIV is a greater threat to public and individual health than drug misuse. The
first goal of work with drug misusers therefore must be to prevent them from acquiring
or transmitting the virus’ (ACMD, 1988: 1).
While a range of agencies, probation included, braced themselves for the rapid and
unimpeded spread of HIV among their respective drug using clients, the success of the
harm reduction model demonstrated its worth and most now agree that the approach
effectively and significantly curtailed the spread of the disease (McDermott, 2005;
Strang, 2005). The success of harm minimization, however, has been no guarantee of its
continuance as the dominant mode of engagement with drug users. During the course of
the last decade or so concern over the extent to which drug misuse drives criminality has
seen coercive and punitive measures rise in their popularity (Duke, 2006). Even if these
have not replaced health concerns completely, there is now sufficient concern among
academic and practice communities to suggest that harm reduction might have been
relegated to a position of secondary importance (Buchanan and Young, 2000; Seddon,
2009) with the emphasis shifted from benefit for the individual to benefit for the com-
munity (Barton, 1999) and, consistent with the ‘punitive turn’ directed at offenders more
generally (Pratt et al., 2005) in the context of the ‘culture of control’ associated with late
modern penality (Garland, 2001), greater priority accorded to compliance and enforce-
ment (Hunt and Stevens, 2004).
As concerns over the threat of HIV gradually subsided, the Government went to consid-
erable lengths to publicize the link between illicit drug use and acquisitive criminality (HM
Government, 1995, 1998). The eventual consequence of this mounting concern was to
bring about an alteration in the perceived purpose of treatment. Certainly as it applied to the
criminal justice system, drug treatment was regarded as beneficial not just because it
brought with it a range of individual and public health benefits, though these were not
entirely dismissed, but because effective treatment could lead to abstinence from drugs and
this in turn was expected to deliver a cessation (or at least significant reduction) in criminal
activity (Buchanan and Young, 2000; Harman and Paylor, 2002; see also Carlin, 2011 and
Stevens, 2011 for a contemporary discussion of the tension between public health and
criminal justice goals in treatment). Finch and Ashton (2005) have suggested that nowhere
was this emphasis on abstinence as the anticipated goal of treatment more evident than in
the Drug Treatment and Testing Order (DTTO), though arguably the objective of the DTTO
was less about promoting abstinence per se than about severing the purported link between
drug use and acquisitive crime. Introduced as part of the 1998 Crime and Disorder Act, this
community-based order was expected ‘to toughen up the probation response to drug abuse
and require the offender to undergo treatment’ (Bean, 2002: 74).
In essence the DTTO was based on the assumption:
that drug use is linked to crime, that coercive treatment enforced through the criminal justice
system is at least as effective as non-coerced treatment and that there is good evidence from the
UK that treatment does indeed reduce drug use. (Finch and Ashton, 2005: 189)
Sparrow and McIvor
301
While academics have sought to highlight the complex nature of the link between drugs
and crime and the inconclusive evidence...
To continue reading
Request your trial