Statutory Sentencing Principles: The 1990 White Paper
| Author | Andrew Hirsch,Martin Wasik |
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb02832.x |
| Date | 01 July 1990 |
| Published date | 01 July 1990 |
REPORTS
Statutory Sentencing Principles:
The
1990
White
Paper
Martin Wasik* and Andrew
von
Hirsch**
The Government has published its plans for a far-reaching reform of the English criminal
justice system in
its
White Paper,
Crime, Justice
and
Protecting the Public.‘
There can
be no doubt that it is an important document.2
It is appropriate to say from the outset that this set of proposals, unlike a number
of
earlier ones emanating from the same Government, is distinguished by the enunciation
of a set of reasonably clear basic principles, notably the acceptance of ‘deserty3 or propor-
tionality as being the appropriate guiding principle for sentencing. Explicitly, deterrent
thinking is rejected as a means of determining the incidence and duration of custodial
~entences.~ There is also a new willingness to address issues of consistency and fairness
within the criminal justice system, rather than presenting a rag-bag of proposals which
reflect short-term considerations and have little inherent coherence. We find ourselves
in agreement with the main thrust of proposals
in
the White Paper though, in what follows,
we express a number of reservations. It will be appreciated, however, that our comments
in this article can only be addressed to the document as it stands
-
there is still a long
way
to
go before the proposed changes find their way into legislation. The lesson should
be clear from other jurisdictions which have undertaken similar reforms, that coherent
legislative proposals for sentencing may, in the process of becoming law, be compromised
by various vested interests in the existing system or subverted for shorter term political
advantage.
A
Guiding Statute
for
Sentencing
The central proposal in the White Paper is for the creation in England of a sentencing
statute to provide ‘a coherent framework for the use of financial, community and custodial
punishments.’6
It
has been clear for some years that English sentencing law lacks any
coherent rationale. A leading decision of the Court of Appeal,’ for example, cites
retribution, deterrence, prevention and rehabilitation as being the four aims of sentencing,
without providing any helpful explanation of how
these
aims
are
to be reconciled or which
is to predominate.* Allowing sentencers to pick and choose
at
will amongst the diversity
*Senior Lecturer in Law, Manchester University.
**Professor, School of Criminal Justice, Rutgers University; also Research Fellow in Penal Law, Uppsala
University, Sweden.
1
2
Cm
965,
London: HMSO,
1990.
A
Green Paper,
Supervision and Punishment in the
Community
Cm
966,
London:
HMSO,
1990,
was issued at the same time.
Its proposals were described by the Home Secretary in the House of Commons as ‘the most fundamental
and far-reaching changes for at least half a century in the way offenders are punished’:
The Times
February
6, 1990.
See also Editorial
I19901
Crim. L. Rev.
217.
Oddly, ‘desert’ appears as ‘dessert’ throughout the White Paper!
Paras
1.8
and
2.8.
The Criminal Justice
Act
1988,
for example, was a sprawling and disparate statute, with
no
unifying theme.
Para
1.15.
Sargeanr
(1974)
60
Cr.
App.
R.
74.
In ‘decision cards’ issued by the Judicial Studies Board in
1987
to advise and assist sentencers, magistrates
are advised that the aims of sentencing are to ‘punish, deter the offender, deter others, rehabilitate the
508
The Modem
Law
Review
53:4
July
1990 0026-7961
To continue reading
Request your trial