9 - History Flashcards
David Thomas QC 2002…
‘In early English criminal law, sentencing was a simple matter. The penalty for felony was death; the penalty for a misdemeanor was unlimited imprisonment or an unlimited fine.’
In early English criminal law
After this…
After this many criminals were transported to the British colonies as judges were concerned about the amount of prisoners they were executing.
Described as a ‘lottery of justice’
However established principle that the judge had total discretion when sentencing.
Between 1820 and 1860…
Between 1820 and 1860 most statutes providing for the death penalty were repealed.
Death penalty was replaced by periods of transportation
Disagreements & compromise…
‘Rather than transportation for a fixed penalty…there should be transportation for any period between 7 years and life’
Beginning of Mandatory penalty for a fixed period - with judge using discretion in setting actual period
In 1861…
In 1861 most of the criminal law was consolidated in a series of major statutes which provided foundations of the law for the next 100 years.
Death penalty restricted…
Death penalty restricted to small number of offences (abolished in 1965)
Principle of judicial discretion…
Principle of judicial discretion in determining the lengths of sentences had become fixed in law
Turn of 20th century…
Turn of 20th century introduction of wider range of sentencing powers
Expanded number of sentencing powers available to courts
Continually expanding number of sanctions Judges and Magistrates have at their disposal
Concern over ‘net widening’
Judge only obliged to imprison in exceptional cases
Judge decided length of sentence
Parliament states maximum permitted for certain type of crime
The Path of Sentencing Policies & Politics
1979, 1980’s, 1991
1979 general election won on the ‘law & order’ ticket by the Conservatives
1980’s led to a settled government looking at policies aimed at:
Consistency &
Rationality in sentencing
Criminal Justice Act 1991
Aims of CJA 1991 was to move away from cafeteria style of sentencing
To promote clarity and consistency
Just deserts was installed as the rationale for sentencing policy
Exception was public protection cases where incapacitation was encouraged.
Rehabilitative consideration influential when choosing a community order
The Path of Sentencing Policies & Politics
1992, 1997
Some magistrates and judges objected to their discretion being eroded
Government policy changed with new Home Secretary Michael Howard
Proclaimed ‘prison works’ in 1992
Introduced measures:
Curtailment of the right of silence
Changes to disclosure of evidence
No challenge from the opposition for fear of label of ‘soft on crime’
New labour (1997) bewildering mix of policies:
Crime prevention became a priority
Rehabilitative initiatives (accredited programmes) in prison and the community
Restorative Justice Elements mainly youth justice
Little official discontent recorded against the rising prison population
1993: 42,000
1997: 61,000
2002; 70,000
Emphasis on persistent offenders
Greater severity for repeat offenders
