Sentence of Defendants Criminal Record

Discuss the relevance to sentence of a defendant’s criminal record. Draft a new sentencing provision (to replace section 143(2) of the Criminal Justice Act 2003) to assist judges and magistrates.

Introduction

This brief discusses the relevance to sentence of a defendant’s criminal record and attempts to draft a new sentencing provision (to replace section 143(2) of the Criminal Justice Act 2003) to assist judges and magistrates. The brief starts by examining the relevance to sentence of a defendant’s criminal record by looking at the advantages and disadvantages of taking into account a defendant’s criminal record during sentencing. Various theories pertaining to the role of defendant’s criminal record in sentencing will be examined. Then, the brief critically examines section 143(2) of the Criminal Justice Act 2003. Under this provision, the court is bound to treat each previous conviction as a factor that aggravates the current offence, and must do so each time the offender is sentenced. The brief will argue that although the Criminal Justice Act 2003 reaffirms the importance of crime seriousness (and therefore proportionate sentencing) in one set of provisions, Section 143(2) undermines this by allowing the offender’s previous convictions to have a larger influence on judicial determination of the severity of the sentence imposed. Basing on the criticisms levelled to this highly controversial provision, the brief then attempts to draft a new sentencing provision (to replace section 143(2) of the Criminal Justice Act 2003) to assist judges and magistrates.

The Relevance To Sentence Of A Defendant’s Criminal Record

The relevance to be attributed to an offender’s previous convictions when imposing a sentence for a new offence has been an issue which has caused particular difficulty in English sentencing legislation. There has also been differing views on the relevance of previous convictions on the sentencing of persistent offenders. These are flat-rate sentencing, progressive loss of mitigation and cumulative sentencing. Of these three views, only the first argues against previous record. An offender’s desert should be measured by reference to the crime committed, in terms of its harmfulness and the offender’s culpability in relation to it. According to this flat-rate sentencing view, the sentence should be governed by the crime and not at all by the offender’s prior record. Proponents of this view argue that previous conventions are not only irrelevant to the calculation, but also taking them into account would be to punish the offender twice over. If sentence has already been passed for the previous offences, it is unjust to increase the sentence for a subsequent crime on account of a previously punished offence.

Proponents for the progressive loss of mitigation and cumulative sentencing argue for consideration of previous offending, but conceptualise the importance differently. These different views reflect the fact that modern retributivists have been divided in their views to the relevance of past offending and good character as a sentencing factor. According to the cumulative sentencing view, for each new offence, the sentence should be more severe than for the previous offence. In this way sentences should be cumulative, with a view to deterring the individual offender from repeating the crimes. The common rationale for cumulative sentencing is individual prevention. Cumulative penalties would deter the offender or, if they did not, he would in effect ‘with his eyes open deliberately sentence himself’. However, with the exception of dangerous offenders, Ashworth argues that the bulk of persistent offenders contain significant numbers who are socially disadvantaged, or in personal turmoil, or substance abusers, or mentally disturbed. As Ashworth pointed out whether or not the cumulative sentencing would be effective in preventing crime would depend not only on such factors as knowledge of the penalties among offenders and the absence of countervailing considerations, but also on the effectiveness of the penalty.

“…the repeated use of prison sentences may be counterproductive, making these offenders less able to live law-abiding lives and more likely to reoffend on release. If the cumulative principle is based on individual deterrence, and if the point of deterrence is to protect the public, heavy reliance on imprisonment for this purpose may not only go against the principle of restraint…but also be to a significant extent self-defeating.”

Progressive loss of mitigation allows some enhancement for previous record, and differs from the cumulative principle in placing strong limits on the influence of previous record in deference to an overall concept of proportionality. According to this view, if an offence is committed for the first time, it might be successfully argued in mitigation that the action is out of character and so there is, in effect, a penalty discount for first offenders. While discount may be appropriate, Von Hirsch emphasises that there must not be a large differential between punishments for the first offenders and recidivists. For Von Hirsch there would be a limit on how far previous convictions would increase the severity of the sentence and the upper limit would be lower. Noting that past criminal record has implications for deserts for the current offence, Von Hirsch argues for “primary but not exclusive emphasis on the current offence. If the offender persists he would loose his first offender discount and this would be done progressively. Once the offender has used up the discount, he would receive a full amount of punishment but no more than this. Unlike Fletcher who focuses on previous offending as incompatible with just deserts principles, Hirsch focuses on the current offence and the size of the differential between two punishments to be kept between proper bounds. However, efforts the proponents of the progressive loss of mitigation to provide a rational basis for dealing with multiple offences through a ceiling of punishments have been criticised. Ryberg argues that this approach is both theoretically flawed and also cannot provide a practical basis for sentencing.

The progressive loss of mitigation approach was endorsed by the Court of Appeal. However, in practice there appeared to be a substantial recidivist premium for many persistent offenders. In Bailey the trial judge had evidently imposed a sentence in order to incapacitate the defendant for a lengthy time (a version of the cumulative principle). However, the Court of Appeal held that this was wrong in principle. Stocker LJ stated:

“It is of course manifest that a convicted criminal’s past record forms part of the matrix upon which he falls to be sentenced. Clearly no court would be likely to impose a sentence of imprisonment for a first offender of the same length that might be appropriate for a person with a substantial criminal record. To that extent the past record is a relevant factor to be taken into account. On the other hand, as has often been said by this court … the sentence imposed must be related to the gravity of the offences in relation to which it is imposed…”

The progressive loss mitigation was also referred to by the Government to justify the enactment of section 29 of the Criminal Justice Act 1991. Section 29 stated, inter alia, that an offence was not to be regarded as more serious by reason of any previous convictions of the offender. However, the Government repealed the whole of section 29 and substituted a new section by the Criminal Justice Act 1993. The amended sections 29 stated that in considering the seriousness of any offence, the court may take into account any previous convictions of the offender or any failure of his to respond to previous sentences. This later version was consolidated into section 151(1) of the Sentencing Act 2000, which in turn was repealed and replaced by section 143(2) of the Criminal Justice Act 2003 (CJA 2003). The CJA 2003, in line with the Halliday proposals, enhanced the relevance of previous record. Halliday had argued that clarifications needed to be based on a clear presumption that sentencing severity should increase as a consequence of sufficiently recent and relevant convictions. The CJA 2003 incorporates intention in section 143(2).

The Halliday Report made it clear that the treatment of persistent offenders in sentencing legislation was unsatisfactory because it was unclear as it ought to be and has unpredictable results.Accordingly, Halliday Report recommended that the existed “just deserts” philosophy to be modified by incorporating a new presumption that severity of sentence should increased when an offender has sufficiently recent and relevant previous convictions, but how this should be done should be spelt out in sentencing guidelines rather than in primary legislation.

The Relevance Of Criminal Record Under Section 143(2) Of The CJA 2003

Section 143(2) of the CJA 2003 introduced a new provision on the sentencing of repeat offenders. Section 143(2) was one measures introduced by the government to tackle persistent offending. In its White Paper preceded the Act, the Government stated that persistent offending should also justify a more severe view and more intensive efforts at preventing re-offending and that increased punishment will be the outcome for those offenders who have consistently failed to respond to previous sentences. Section 143(2) provides:

“In considering the seriousness of an offence (‘the current offence’) committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to –

(a) the nature of the offence to which the conviction relates and its relevance to the current offence, and

(b) the time that has elapsed since the conviction.

The convictions include convictions from any court in the UK or service court. Convictions from outside the UK must also be taken into account where the court considers that such an offence can reasonably be regarded as an aggravating factor. The term “convictions” include spent convictions, but not cautions. Section 143(2) strengthens the rules relating to character. The pre-existing law allowed a court to take into account previous convictions, and the courts invariably did so. However, now section 143(2) requires not only to do this, but equally importantly, also to treat each previous conviction as an aggravating factor to offence seriousness it can reasonably so treated. One might consider that previous convictions should not, normally, be regarded as relevant to the offence seriousness, but rather for the question of aggravating or mitigating factors that determine the nature and length of sentence. Previous convictions are intended to aggravate offence seriousness, which is heightened by previous offending. The expectation is that persistent offenders should be treated progressively more severely. However, those convictions should be relevant and recent.

Section 143 (2) is a highly controversial provision, in terms of both the underlying philosophy of the Act and its likely impact on the custodial population. An important consequence of increasing the severity of sentences imposed on offenders with previous convictions is likely to be a substantial rise in the prison population, which has already have been increasing steadily in recent years. A collateral result could be a transformation of the profile of admissions to prison, and eventually, a change in the nature of the prison population. Repeat offenders with related previous convictions will be more likely to attract custodial sentences, and longer terms of custody. Recidivists tend to be property offenders, rather than violent offenders.

As Ashworth further pointed out, the provision also appears to create a tension because whilst “it indicates that a court is bound to treat each previous conviction as a factor that aggravates the current offence, and should do so each time the offender is sentenced” (hence cumulative approach), “the force of the mandatory words, ‘must treat … as an aggravating factor’, appears to be softened by the later clause, ‘if the court considers that it can reasonably be so treated’”. The Explanatory Notes to the CJA 2003 stated badly that recent and relevant convictions “should be regarded as an aggravating factor which should increase the severity of the sentence”, leaving no room for judicial discretion or for other factors.

Another issue is the relationship between section 143(2) and the doctrine of proportionality. Proportionate sentencing calls for primary emphasis to be given to the gravity of the current offence and not to previous convictions for which the offender has already been punished. Limits on relying on the prior criminal record may also prevent lesser property offenders from being incarcerated, freeing up costly prison space for more serious offenders who would more clearly deserve imprisonment. Paragraphs D1 and D2 of the recommendations of the Council of Europe on consistency on sentencing state that previous convictions should not be used mechanically as a factor working against the defendant. According to paragraph D1, previous convictions should not, at any stage in the criminal justice system, be used mechanically as a factor working against the defendant. Paragraph D2 stated that although it may be justifiable to take account of the offender’s previous criminal record within the declared rationales for sentencing, the sentence should be kept in proportion to the seriousness of the current offence(s). Thus, while Paragraph D1 emphasizes on the importance of considering the reasons for re-offending in each case; Paragraph D2 recognizes that, even in those countries where prevention is the primary rationale of sentencing, there should be a proportionality constraint in the sentencing of persistent offenders.

The sentence should be kept proportionate to the seriousness of the current offence. The fact that previous offence might be relevant to offence seriousness was recognised by the changes made in 1993. It is not intended that that wholly disproportionate sentences should result. Yet, section 143(2) modifies the proportionate principles. Proportionality requires the court to weigh the seriousness of the offence, together with any associated offences, both in relation to other offences and in relation to the range of punishments available to it. However, whilst proportionality has been diminished in England and Wales, several other common law jurisdictions have strengthened the role of proportionality in sentencing.

Another issue on proportionality is the fact that some aggravating factors appear to have a greater effect on sentence than the basic offence itself. Thus, where an offence is committed against a vulnerable victim, the extent to which that aggravates the sentence may be 100% or more of the basic offence. On the other hand, where an offender pleads guilty and satisfies the court that s/he is genuinely remorseful the reduction in sentence may reach 40% or more.

The common law principle that a gap in offending should be taken to diminish the effect of previous convictions is restated in s. 143(2)(b), which requires courts to have regard to the time that has elapsed since each previous conviction. It would have been harsh if a person has to bear the burden of previous convictions indefinitely. After a number of years a person should be able to regain full rights as a citizen, and such a principle may even provide an incentive not to re-offend.

The Sentencing Guidelines Council has slowly moved towards greater specificity on the relevance of previous convictions in the sentencing process. Its current guidance on “sentence ranges and starting points” states that a sentencing range is “the bracket into which the provisional sentence will normally fall after having regard to factors which aggravate or mitigate the offence.” The possible sentence ranges will be indicated by the guidelines established for the particular type of offence. Then it goes to state:

“Where the offender has previous convictions which aggravate the seriousness of the current offence that may take the provisional sentence beyond the range given, particularly where there are significant other aggravating factors present.”

As Ashworth pointed out, although this gives courts the liberty to go outside the indicated sentence range where previous convictions are treated as aggravating, it gives no guidance on the extent to which previous convictions may aggravate sentence. In addition, the guidelines does not provide clear warning about disproportionality of sentence, following the same path as the wording of s. 143(2).

So far there is very scarce information on the relationship between the law and sentencing guidelines and court practice. Since the CJA 2003 came into force there has also been no authoritative consideration of section 143(2). Although the lack of authoritative consideration may be that this important provision is being applied perfectly by the courts, there is certainly scope for different views to be taken given the different possible interpretations of the provision. This can be evidenced from the Court of Appeal’s own previous history of dealing with these issues which has demonstrated an inconsistency between its language and its actions.

However, recent studies of sentencing decisions have shown the relevance of both previous convictions and qualitative assessments of an offender’s character. For example, Hough, Jacobson and Millie found previous convictions as a major factor that inclined the courts towards a custodial sentence in borderline cases. Their findings suggests that, before the CJA 2003 came into force, the courts took a qualitative approach to previous convictions that was more consistent with the Council of Europe’s position than with the approach subsequently required by the CJA 2003. However, they also found that where there was evidence of an offender’s determination to change, a court might well be willing to make a community order rather than custody.

New Draft Sentencing Provision (To Replace Section 143(2) Of The CJA 2003

Repeat offenders represent a higher risk of re-offending and this justifies a harsher sentence from the perspective of individual deterrence or incapacitation. Thus, sentence severity rises significantly with each prior conviction, thereby leading to a cumulative sentencing model in which the offender’s record may be as important as the seriousness of the current offence in determining sentence severity. However, a sentencing scheme that resorts to cumulative sentence increases for repeat offenders will make the criminal law’s public valuation of criminal conduct much more diffuse. As a result, the focus would no longer be on the degree of harmfulness of the offence and the offender’s culpability, but rather on the extent of the offender’s previous convictions. An offender who commits a lesser offence, having repeatedly been convicted of such conduct before, could receive nearly as much condemnation through his increased sentence as someone who has committed a much more harmful and reprehensible act. As a result, the severity of the criminal sanction will no longer reflect recognition of the degree of wrongfulness of criminal acts. Accordingly, any new provision to replace section 143(2) should emphasise on the criminal sanction’s role in conveying censure of criminal and wrongful conduct. A new provision that focuses primarily on the seriousness of crimes is capable of furnishing a reasonably clear public expression of the degree of blameworthiness of various criminal acts. If that conduct is serious, a severe sentence would be imposed, one that conveys strong public disapproval of the conduct, thereby recognising the importance of the rights that have been infringed. If it is not serious, the severity of sentence should be scaled down accordingly.

Accordingly section 142(2) should be replaced with the following:

“In determining the appropriate punishment, the court, if sufficient consideration cannot be given to the circumstances through choice of sanction or forfeiture of conditionally granted liberty, shall, to a reasonable extent, take into account whether the accused has previously been guilty of crime. In this connection, special consideration shall be given to the extent of any previous criminality, to the time that has elapsed between the crimes, and to whether the previous and the new criminality are similar in nature or whether in both cases they are of an especially serious character.

In deed, this is section 4 in Chapter 29 of the Swedish Penal Code. The present Swedish sentencing law is clearly based on a “neo-classical” just deserts-ideology. The above draft section would remedy the proportionality principle which is missing in the current section 143(2). The draft section would also be in line with the recommendations made by the Council of Europe. The draft section should be complemented by guidelines on the centrality of the proportionality principle in sentencing. The guidelines should lead to the emergence of some more definite sentence levels that focus on the offence itself and thus restrict the possibility of discrimination.

Conclusion

Whilst the English law reaffirms the importance of crime seriousness, it also allows the offender’s criminal record to have a larger influence on judicial determination of the severity of the sentence imposed. The original version of the rather restrictive provision in Criminal Justice Act 1991 was repealed and replaced by a much more loosely worded provision in the Criminal Justice Act 1994. This latter version was consolidated into the Sentencing Act and is now, in its turn, repealed and replaced by the CJA 2003. As well as re-enacting some existing provisions, this legislation places the purposes and certain principles of sentencing on a statutory footing. It also establishes a mechanism for generating sentencing guidelines issued by the Sentencing Guidelines Council. The current legislation on persistent offenders in the form of the CJA 2003, urges courts to treat each recent and relevant previous conviction as an aggravating factor when sentencing for the current offence. This has the potential to increase sentences for persistent offenders well beyond the level appropriate to the seriousness of the current or indeed the previous offences, and thus to lead to swingeing sentences for persistent minor offenders. The current guidelines do not take the matter much further, and some offence guidelines explicitly allow a sentence above the relevant level if there are numerous previous convictions. Accordingly, a draft section based on the Swedish penal code has been suggested to replace the current section 143(2).

Bibliography

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