The policy and practice of protective sentencing

Publication Date01 February 2003
AuthorRalph Henham
Criminal Justice
© 2003 SAGE Publications
London, Thousand Oaks
and New Delhi.
1466–8025(200302) 3:1;
Vol. 3(1): 57–82; 030456
The policy and practice of
protective sentencing

Nottingham Trent University, UK
This article discusses some recent empirical research into the
sentencing of dangerous offenders in England and Wales in its
wider socio-legal context. It is particularly concerned to draw
attention to the ways in which the operation of those procedural
constraints that circumscribe judicial discretionary decisions in this
area bear little relevance to notions of moral legitimacy, nor the
legal rights of offenders, victims or the wider community.
Key Words
dangerousness • judicial discretion • protective
sentences • sentencing policy
The main aim of this article is to discuss the findings of a recent empirical
investigation into the operation of protective sentences1 in their wider
theoretical and policy context (Henham, 2001). The study examined
various disposals including so-called longer than commensurate sentences
under s.80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000
(hereinafter ‘PCCSA’), which allow sentencers to extend the ‘normal sen-
tence’2 for a serious ‘violent’ or ‘sexual’ offence if of the opinion that such
a sentence is the only adequate way to protect the public from ‘serious
harm’ from the offender. The research objectives aimed to discover the
kinds of cases where such ‘protective’ sentences are passed, and the type of

Criminal Justice 3(1)
information judges use in order to assess the risk posed by the offender. The
analysis was particularly concerned with assessing the extent to which
judges comply with statutory procedural requirements, the evidence taken
to be relevant to the prediction of legally relevant criminal behaviour and
the emphasis placed on victim vulnerability in assessing the likelihood of
future serious harm. The research also analysed the operation of s.109
PCCSA, which provides for automatic life sentences for offenders who
commit a second ‘serious offence’. In addition to examining the nature and
circumstances of the defendant’s previous record, the analysis evaluated
Court of Appeal guidance on the operation of the ‘exceptional circum-
stances’ exception, which allows the Court to avoid imposing a mandatory
life sentence. Finally, the research also evaluated the use of ‘extended
sentences’ under s.85 PCCSA, and discretionary life sentences.
The legal and policy context
Longer than commensurate sentences
Although the genesis and operation of longer than commensurate sentences
under s.80(2)(b) have been discussed elsewhere (see Clarkson, 1996;
Henham, 1996a; von Hirsch and Ashworth, 1996; Henham, 1997a,
1997b; Dingwall, 1998; Thomas, 1999b), the provision of some contextual
background is essential for a reasoned evaluation of the research find-
The main philosophical justification for s.80(2)(b) is utilitarian in the
sense that the harm predicted by any future criminal behaviour on the
offender’s part is judged greater than the harm inflicted on the offender
through the imposition of an additional period of incapacitation
(Radzinowicz and Hood, 1978, 1981; Bottoms and Brownsword, 1982;
von Hirsch, 1985, 1988; Wood, 1988). It is also consequentialist in that it
looks to the consequences of future criminal conduct, and reductivist in the
sense of promoting policies designed to reduce crime. Nevertheless, these
philosophical justifications disguise difficulties relating to the specification
of harms against which precautions are considered justifiable, assessing the
probability of future harm and choosing between custodial and non-
custodial expedients (see Walker, 1985: 377–8). The standard retributivist
objection to protective sentencing rests on the premise that punishment is
imposed for a crime that the offender has not committed and may never
commit (Duff and Garland, 1994). Bottoms and Brownsword suggested a
compromise that would justify preventative detention in cases where the
offender presented a ‘vivid danger’.3 However, even in situations of ‘vivid’
or ‘imminent’ danger the problem of prediction remains, and it was this
which no doubt prompted Floud and Young (1981) to adopt a pragmatic
approach by recognizing the social and political unacceptability of aban-
doning dangerousness assessment and suggesting that unconditional poten-
tial aggression justified overriding the fundamental right of individuals to

Henham—The policy and practice of protective sentencing
be presumed harmless. None of these arguments deal adequately with the
additional moral objection that reliance on predictive factors ignores the
fact that ‘dangerousness’ is to a large extent situational (Mathiesen, 1990:
ch. 4; Walker, 1999: ch. 5).
The historical context of protective sentencing is particularly significant
since, as Pratt (1995, 1996) has argued convincingly, it is closely linked to
the postmodern emphasis on individual autonomy and the concomitant
expectation that state intervention is necessary to protect citizens’ rights to
life, security and self-determination. In Foucauldian terms, actuarialism is
the new technology of power applied to a group of violent and sexual
offenders that have become the focus of dangerousness legislation in recent
years, thus replacing the former protection afforded against habitual and
professional criminals which was based on past offending behaviour with
policies aimed at public protection from predicted future harm. These
developments have been prompted through the ‘bifurcation’ (Bottoms,
1977) in sentencing policy of the of the 1980s, the ‘punitive bifurcation’
(Cavadino and Dignan, 2002: 122) of the strategy adopted in the Criminal
Justice Act 1991 and the ‘populist punitiveness’ (Bottoms, 1995: 40) of the
1990s and, as Lacey (1994) suggests, signify a wider trend towards
‘managerialism’, increased government intervention and incursion in many
areas of public administration. Associated with these changes in the
direction of criminal justice policy is the suggestion that dangerousness
legislation has been characterized by symbolic rather than real effects
(Pratt, 1995: 25).
Longer than commensurate sentences have been described as a confla-
tion of seriousness and dangerousness concepts (Nash, 1992); a ‘pseudo-
mandatory’ compromise (Walker, 1996), which allowed politicians to
circumvent the problems surrounding the actual selection of individuals
predicted dangerous by adopting an offender-based system. The focus of
dangerousness assessment and its classification thus became a measure of
the extent to which the public needed to be protected from such offenders.
As Pratt (1995) suggests, since the 1970s behaviour relevant to dangerous-
ness has almost exclusively come to be defined in terms of repeat violent or
sexual offending.
The switch from dangerousness laws predicated on the positivist concep-
tion of cumulative sentencing (Henham, 1995) to notions of social defence
was achieved within the rather incongruous framework of the Criminal
Justice Act 1991 (Galligan, 1981; von Hirsch, 1986; Ashworth, 1989;
Wasik and von Hirsch, 1990). The Act’s just deserts rationale sat uneasily
with consequentialist provisions such as s.80(2)(b)4 (Nash, 1992), although
von Hirsch and Ashworth (1996: 177) suggested that the section should
rather be seen as an exception to the general rule of proportionate
sanctions. Notwithstanding, commentators are in general agreement that
provisions that allow predictive confinement by sentencers for persistent
violent and sexual offenders are inconsistent with principles of ‘fairness’.5

Criminal Justice 3(1)
Since its inception s.80(2)(b) has generated a considerable amount of
case law, much of it concerned with definitional issues (see further Wasik,
2001). Of particular relevance to the present discussion is the problem of
sentence length since s.80(2) restricts the available term to the maximum
for the instant offence. Where tariff levels are set high (as is likely to be the
case with the more aggravated forms of an offence) the margin remaining
available for achieving the desired objective of public protection may be
insufficient (see Williams, 1993) Hence, the balance between commensura-
bility and public protection may be difficult to achieve with the result that
neither objective is fulfilled. The capacity for public protection was further
restricted in Mansell (1994) where Lord Chief Justice Taylor suggested
that, although each case had to be decided on its own facts, the sentencer
in any particular case had to balance the need for public protection against
the requirements of the totality principle, which imposed a need to ensure
that the overall sentence was not disproportionate to the nature of the
A refinement of this approach was advocated by Lord Taylor in Crow
and Pennington (1994) where the Court of Appeal held that the sentence
should bear a ‘reasonable relationship’ to the offence for which it was
imposed, although long enough to provide the necessary measure of public
protection. However, when allied to the declared need for there to be a
‘substantial risk’ of further offending, Thomas (1996a: 132) argued that
the ‘reasonable relationship’ test would probably operate to restrict the
length of protective sentences and, consequently, reduce any additional
protection available to the public, particularly when early release proce-
dures were taken into account. More recently in Chapman (2000) the
Court of Appeal adopted a...

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