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Page 1 of 4

  • Chapter 17 - State Responses to Criminal Offences in England and Wales and the Problem of Equality

  • Edited by Matthew Dyson, Benjamin Vogel
  • Book:
    The Limits of Criminal Law
    Published by:
    Intersentia
    Published online:
    11 February 2021
    Print publication:
    26 October 2020, pp 345-364

  • Summary

    Criminal law entails a substantive notion of criminal offences and a procedural notion of how the state responds to the commission (or possible commission) of offences. A fuller understanding of the criminal law and its limits thus requires more than an assessment of the behaviours that are and should be criminalised; it also requires an understanding of the criminal process and alternative means of enforcement. The very existence of such alternatives suggests an important limit on the criminal law. Enforcement via the criminal process is no longer, if it ever was, the sole means by which the state can respond to the commission of criminal offences. Alternative means of enforcement could conceivably constitute a positive limit on the criminal law: rational alternatives could allow enforcement via the criminal process to be reserved for more serious wrongs. The term ‘could’ is, of course, crucial here. In this chapter, we critically assess the alternative means by which the state can regulate criminalised behaviour.

    Section 1 of the chapter provides an overview of criminal and non-criminal enforcement in England and Wales, noting the various agencies that are involved and the legal resources that are relevant to them. Section 2 undertakes a more detailed examination of two alternative means of enforcement: penalty notices for disorder and preventive orders. Focusing on the measures considered in section 2, sections 3 and 4 each engage with a normative issue underlying the use of non-criminal enforcement. Section 3 assesses whether non-criminal enforcement that does not incorporate the fair trial safeguards of criminal enforcement can be justified. To make this assessment, the section engages with both how distinctive preventive orders are from punishment, and the role of recipient consent in justifying the imposition of penalty notices for disorder. Section 4 questions the extent to which non-criminal enforcement is consistent with the principle of equality in criminal law.

    OVERVIEW

    We begin the section by describing the paradigmatic ‘criminal’ model of enforcement in England and Wales, and we then outline alternative types of response.

    The English criminal process can be divided into three stages:

    • 1. investigation;

    • 2. prosecution; and

    • 3. conviction and sentencing.

    Most of English criminal law is to be found in legislation passed by Parliament, but there is no criminal code and there are still several common law offences which have never been put on a statutory footing, for example manslaughter and perverting the course of justice.

  • Integration of genomic and clinical data augments surveillance of healthcare-acquired infections

  • Doyle V. Ward, Andrew G. Hoss, Raivo Kolde, Helen C. van Aggelen, Joshua Loving, Stephen A. Smith, Deborah A. Mack, Raja Kathirvel, Jeffery A. Halperin, Douglas J. Buell, Brian E. Wong, Judy L. Ashworth, Mary M. Fortunato-Habib, Liyi Xu, Bruce A. Barton, Peter Lazar, Juan J. Carmona, Jomol Mathew, Ivan S. Salgo, Brian D. Gross, Richard T. Ellison III
  • Journal:
    Infection Control & Hospital Epidemiology / Volume 40 / Issue 6 / June 2019
    Published online by Cambridge University Press:
    23 April 2019, pp. 649-655
    Print publication:
    June 2019
  • Background:

    Determining infectious cross-transmission events in healthcare settings involves manual surveillance of case clusters by infection control personnel, followed by strain typing of clinical/environmental isolates suspected in said clusters. Recent advances in genomic sequencing and cloud computing now allow for the rapid molecular typing of infecting isolates.

    Objective:

    To facilitate rapid recognition of transmission clusters, we aimed to assess infection control surveillance using whole-genome sequencing (WGS) of microbial pathogens to identify cross-transmission events for epidemiologic review.

    Methods:

    Clinical isolates of Staphylococcus aureus, Enterococcus faecium, Pseudomonas aeruginosa, and Klebsiella pneumoniae were obtained prospectively at an academic medical center, from September 1, 2016, to September 30, 2017. Isolate genomes were sequenced, followed by single-nucleotide variant analysis; a cloud-computing platform was used for whole-genome sequence analysis and cluster identification.

    Results:

    Most strains of the 4 studied pathogens were unrelated, and 34 potential transmission clusters were present. The characteristics of the potential clusters were complex and likely not identifiable by traditional surveillance alone. Notably, only 1 cluster had been suspected by routine manual surveillance.

    Conclusions:

    Our work supports the assertion that integration of genomic and clinical epidemiologic data can augment infection control surveillance for both the identification of cross-transmission events and the inclusion of missed and exclusion of misidentified outbreaks (ie, false alarms). The integration of clinical data is essential to prioritize suspect clusters for investigation, and for existing infections, a timely review of both the clinical and WGS results can hold promise to reduce HAIs. A richer understanding of cross-transmission events within healthcare settings will require the expansion of current surveillance approaches.

  • 3 - Sentencing aims, principles and policies

  • Andrew Ashworth, University of Oxford
  • Book:
    Sentencing and Criminal Justice
    Published online:
    28 May 2018
    Print publication:
    20 August 2015, pp 75-111

  • Summary

    The aims of the criminal justice system

    The ‘criminal justice system’ is not a structure which has been planned as a system. Nor is it so organized that the several interlocking parts operate harmoniously. In England and Wales, as in many other jurisdictions, the administration of criminal justice has grown in a piecemeal way over the years, with separate phases of development leaving their mark. To refer to a ‘system’ is therefore merely a convenience and an aspiration. It should not be assumed that the various arrangements were planned or actually operate as a system, although it remains necessary to recognize the interdependence of the different parts and to incorporate this into any planning.

    It is important to distinguish the aims of the criminal justice system from the aims of sentencing, which merely relate to one element. As we saw in Chapter 1.4, the system encompasses a whole series of stages and decisions, from the initial investigation of crime, through the various pre-trial processes, the provisions of the criminal law, the trial, the forms of punishment, and then post-sentence decisions concerned with, for example, supervision, release from custody, and recall procedures. It would hardly be possible to formulate a single meaningful ‘aim of the criminal justice system’ which applied to every stage. It is true that one might gather together a cluster of aims: for example, the prevention of crime, the fair treatment of suspects and defendants, due respect for the victims of crime, the fair labelling of offences according to their relative gravity, and so on. But to combine these into some overarching aim such as ‘the maintenance of a peaceful society through fair and just laws and procedures’ would surely be to descend into vacuity, since it gives no hint of the conflicts that arise and the priorities that need to be determined. Thus the cluster of aims for different stages of the system needs to be stated in such a way as to maximize coherence and also to ensure compliance with international obligations such as the European Convention on Human Rights and the United Nations Convention on the Rights of the Child.

  • 7 - Equality before the law

  • Andrew Ashworth, University of Oxford
  • Book:
    Sentencing and Criminal Justice
    Published online:
    28 May 2018
    Print publication:
    20 August 2015, pp 250-271

  • Summary

    The principle and its challengers

    The constitutions of many countries proclaim a principle of equality before the law or non-discrimination, or at least a general principle of equality. There is no British Constitution as such, but (as we saw in Chapter 2.7 above) the Human Rights Act 1998 brings into UK law most articles of the European Convention on Human Rights. Article 14 declares that the enjoyment of all the rights declared in the Convention shall be secured ‘without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’. This is not a general principle of non-discrimination, since it applies only to discrimination in respect of rights declared in the Convention, but it is nevertheless important.

    In English law the Equality Acts 2006 and 2010 establish a general legal anti-discrimination framework, monitored by the Equality and Human Rights Commission. The protected characteristics are age, disability, gender, gender reassignment, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. Section 149(1) of the 2010 Act requires public authorities to a) eliminate discrimination or harassment on any of these grounds, b) advance equality of opportunity for those with a protected characteristic, and c) foster good relations between those persons and others. While duty a) is negative, duties b) and c) require public authorities to take positive action – an important feature of the law, since the criminal justice system alone cannot hope to bring about changes in social attitudes or opportunities. It can be argued that a sentencing system that places emphasis on proportionality should leave no room for discrimination, since courts should focus on the seriousness of the offence in each case. However, we have seen in Chapter 3 that s. 142 of the Criminal Justice Act 2003 appears to allow courts to pursue other purposes apart from proportionality; in Chapter 5 that some of the recognized aggravating and mitigating factors are not linked to proportionality principles; and in Chapter 6 that previous convictions and predictions of dangerousness can play a prominent part in sentencing. Moreover, although there are sentencing guidelines for many offences, a margin of discretion has been preserved, especially in respect of mitigation and aggravation, and discretion raises the possibility of discriminatory practices.

  • 1 - An introduction to English sentencing

  • Andrew Ashworth, University of Oxford
  • Book:
    Sentencing and Criminal Justice
    Published online:
    28 May 2018
    Print publication:
    20 August 2015, pp 1-53

  • Summary

    Courts and crimes

    Although some common law crimes remain, most of the offences in English criminal law were created by statute and have a statutory maximum penalty. For the purposes of trial, offences were divided into three categories by the Criminal Law Act 1977 – offences triable only on indictment, offences triable only summarily, and offences triable either way. The most serious offences (e.g. murder, rape) are triable only on indictment, at the Crown Court. A large mass of less serious offences is triable only summarily, in magistrates’ courts. The middle category of offences triable either way comprises most burglaries, thefts and frauds. The first question in these cases concerns the defendant's intended plea: if the defendant indicates a plea of guilty, the magistrates must assume jurisdiction and proceed to sentence, unless they decide that their sentencing powers are insufficient. If the intended plea is not guilty, the defendant will be tried at a magistrates’ court unless either the magistrates direct or the defendant elects to have the case tried at the Crown Court.

    The Crown Court sits with a judge and jury. There are three levels of Crown Court centre: first-tier centres, where both civil and criminal cases are tried and where High Court judges and circuit judges preside; second-tier centres, where High Court judges or circuit judges preside but only deal with criminal cases; and third-tier centres, where circuit judges or recorders deal with criminal cases, being mostly offences triable either way. The types of criminal offence are divided into four classes, according to their gravity, and some can only be tried by a High Court judge (of whom there are around 105), whereas others can be tried by circuit judges or recorders. Circuit judges (around 650) are full-time judges, although they may divide their time between civil and criminal work. Recorders and assistant recorders (around 1,200) are part-time judges, whose main occupations are barristers, solicitors or (in a few instances) academics; most full-time judges start their judicial careers in this way. Appeals against sentence from the Crown Court go to the Court of Appeal and, if there is no point of law involved, the appeal requires that Court's leave if it is to be heard. Applications for leave are dealt with by individual High Court judges.

Sentencing and Criminal Justice
  • 6th edition
  • Andrew Ashworth
  • Published online:
    28 May 2018
    Print publication:
    20 August 2015
  • Now in its sixth edition, Sentencing and Criminal Justice has been extensively rewritten to reflect recent legislation, guidelines and judicial decisions. New material includes comparative sentencing research, which looks at models from other countries in comparison with the approach in England and Wales, and an additional chapter focusing on civil preventive orders and other ancillary orders. Written with clarity of expression coupled with critical analysis, this textbook offers an unrivalled combination of expertise, accessibility and coverage. This is the essential text for anyone interested in criminal justice.

  • 8 - Multiple offenders

  • Andrew Ashworth, University of Oxford
  • Book:
    Sentencing and Criminal Justice
    Published online:
    28 May 2018
    Print publication:
    20 August 2015, pp 272-293

  • Summary

    This chapter, like Chapter 6, deals with some of the problems posed by the sentencing of persistent offenders. Its focus, however, is on offenders who come before the courts in a different context. In Chapter 6 the main concern was with the sentencing of recidivists – those who are convicted repeatedly, despite the fact that they have experienced criminal sanctions. The main concern here is with offenders who commit a number of offences before they are detected and convicted, so that the court has to sentence them on one occasion for multiple offences. Not all these multiple offenders could be described as ‘persistent offenders’, for in some cases the offender has been involved in a single incident which gives rise to a number of charges and convictions. But many ‘multiple offenders’ are people who have been committing offences over a period of weeks, months, or even years before they appear in court, and they then face a number of charges. The criminal record of such multiple offenders may vary: some of them will be recidivists too, having experienced a number of criminal sanctions in the past, whilst others will fall into that seemingly incongruous category of ‘persistent first offenders’ – those who, when they are convicted for the first time, are convicted of several offences which show that they are accustomed to lawbreaking, if not to the criminal process.

    The focus of this chapter, then, will be on multiple offenders, some of whom are being sentenced for a number of offences arising from a single incident, but most of whom are being sentenced for offences committed at different times during the period before their court appearance. It seems that around half of all Crown Court cases and about a quarter of magistrates’ court cases involve two or more convictions, so there is no doubting multiple offenders’ centrality to sentencing. They give rise to difficulties both theoretical and practical, particularly in relation to proportionality. It is one thing to compare a residential burglary with a rape; it is quite another thing to draw comparisons of gravity between two, four or six residential burglaries and a single rape. Before tackling these problems, however, the various procedural methods of dealing with multiple offenders must be briefly explored.

  • 9 - Custodial sentencing

  • Andrew Ashworth, University of Oxford
  • Book:
    Sentencing and Criminal Justice
    Published online:
    28 May 2018
    Print publication:
    20 August 2015, pp 294-335

  • Summary

    This chapter presents a critical appraisal of the law and practice on custodial sentences. Imprisonment involves deprivation of liberty and is the most onerous and intrusive sentence available in this and other European countries, engaging several rights declared in the European Convention. Deprivation of liberty and incarceration in a punitive institution therefore require special justification. To begin that process, it is necessary to understand the practical meaning of custodial sentences. This depends on the various provisions for calculating the proportion of the nominal sentence that the offender will spend in custody, on the conditions in which prisoners are held, and on the terms on which they are later released. While the sentence handed down in court establishes the framework, there are exercises of discretion in the prisons and by the Parole Board that have powerful effects in determining the time actually served.

    The chapter begins with an outline of the state of English prisons. It then considers principles and policies for the use of custodial sentences, and moves on to an analysis of the statutory tests for imposing custody, and also the prevailing approach to long custodial sentences. The chapter concludes with a brief discussion of various groups of prisoners who raise particular issues of principle.

  • 5 - Aggravation and mitigation

  • Andrew Ashworth, University of Oxford
  • Book:
    Sentencing and Criminal Justice
    Published online:
    28 May 2018
    Print publication:
    20 August 2015, pp 163-204

  • Summary

    Some preliminary problems of principle

    The factors recognized as aggravating or mitigating have often been thought to be uncomplicated or uncontroversial, or (in the terminology of the English judiciary) ‘well known’ and ‘well established’. However, it will be argued in this chapter that many of them raise contentious issues. These issues assume particular importance for four reasons:

  • • several aggravating factors and one mitigating factor are statutory requirements under the Criminal Justice Act 2003, as we shall see;

  • • s. 166 of the 2003 Act reaffirms that the various statutory thresholds for imposing custodial sentences and community sentences should not be read as ‘prevent[ing] a court from mitigating an offender's sentence by taking into account such matters as, in the opinion of the court, are relevant in mitigation of sentence’ and

  • • s. 174(2) of the 2003 Act requires the court in any case to ‘mention any aggravating or mitigating factors which the court has regarded as being of particular importance’ and

  • • most sentencing decisions are now covered by guidelines; many guidelines indicate the significant aggravating and mitigating factors for the relevant offence(s), and the Sentencing Council's guidelines use some such factors at Step One when determining the appropriate category range.

    • For these four reasons, the analysis of the justifications for particular aggravating and mitigating factors becomes a more pressing task than may hitherto have been supposed. Moreover, the sentencing research by Hough, Jacobson and Millie shows that it was chiefly the influence of personal mitigating factors that often made the difference between a community sentence and a custodial sentence in cases ‘on the cusp’, and the Crown Court Sentencing Survey (CCSS) confirms that even the crude number of aggravating or mitigating factors is related to the probability and length of a custodial sentence.

    The restatement in s. 166 of the power to mitigate sentence is broadly framed, and immediately it raises the question whether justifications for taking account of some personal mitigating factors may be found outside the fundamental rationale of sentencing – which, as argued in Chapters 3 and 4, is that the sentence should be proportionate to the seriousness of the offence.

  • 10 - Non-custodial sentencing

  • Andrew Ashworth, University of Oxford
  • Book:
    Sentencing and Criminal Justice
    Published online:
    28 May 2018
    Print publication:
    20 August 2015, pp 336-376

  • Summary

    In Chapter 9 the close connection between custodial and non-custodial sentencing was often evident, particularly when discussing the statutory test for custody. The present chapter aims to examine the principal non-custodial measures available to English courts when sentencing offenders aged 18 or over. The discussion begins with so-called ‘third tier’ sentences (absolute discharges, conditional discharges and bind-overs, compensation orders and fines), and then moves on to the community sentence, as reshaped by the Criminal Justice Act 2003. First, it is necessary to consider the route by which the English system arrived at its present position.

    A brief history

    Successive governments between the 1960s and the early 1990s stated a policy of reducing the use of custodial sentences, and regarded the provision of new forms of non-custodial sentence as a key element in this strategy. Community service orders (and compensation orders) formed part of the 1972 Criminal Justice Act. New forms of probation order were introduced by a Schedule to the 1982 Act, the Act which also legislated for curfew orders on young offenders. The result was that courts in England and Wales had available a wider range of non-custodial measures than the courts of most European countries, most states in the United States and probably most countries in the world. What might be described as the policy of proliferation was not a conspicuous success. Simply widening the range of available non-custodial sentences did little to deflect courts from their use of custodial sentences. Changes in sentencing practice did take place, but these did not impinge significantly on the use of custody.

    It was lack of progress in that direction, combined with concern among sentencers about laxity in the enforcement of non-custodial sentences, that led to changes in the 1991 Act. The notion of ‘alternatives to custody’ had not been found convincing or even comprehensible by many sentencers: there was, they would say, nothing equivalent to prison, and certainly nothing in the available options. Major changes of direction were proposed in the 1990 White Paper: restraint in the use of custody for non-serious offences, a toughening of community sentences, more rigorous enforcement of community measures, and greater use of financial penalties. Perhaps the most important change was the abandonment of the ‘alternatives to custody’ rhetoric, and its replacement with the idea of punishment in the community, focusing on restrictions on liberty.

  • 11 - Ancillary orders and civil preventive orders

  • Andrew Ashworth, University of Oxford
  • Book:
    Sentencing and Criminal Justice
    Published online:
    28 May 2018
    Print publication:
    20 August 2015, pp 377-396

  • Summary

    This chapter sets out to discuss the ever-expanding range of ancillary orders available to courts at the sentencing stage, and to explore the also expanding range of civil preventive orders, breach of which may constitute a serious criminal offence. The chapter begins with a summary of the current sentencing framework, before going on to examine the range of privatory orders, reparative orders, and preventive orders that courts may make. The rationale for the various orders is then reassessed, before a concluding section on sentencing for breach of an order.

    The statutory sentencing framework

    The framework of sentencing established by the Criminal Justice Act 2003 (as amended) has been much discussed in Chapters 9 and 10 above, and the present summary eschews detailed statutory references in order to convey the essence of the decision-making scheme in respect of adult offenders, as set down in the legislation. The following sequence begins with the least onerous sentence and ends with the most onerous.

  • Is an absolute or conditional discharge sufficient?

  • Is the case suitable for a fine (which may be substantial enough to satisfy the community order threshold or come close to the custody threshold)?

  • Is the case serious enough to warrant a community sentence?

  • Is the offence so serious that neither a fine alone nor a community sentence can be justified, and therefore a custodial sentence is unavoidable?

  • If the case passes the custody threshold test, are there factors indicating that the sentence may be suspended or a community sentence given?

  • If neither of those alternatives is possible and an immediate custodial sentence is unavoidable, is the case one to which a minimum sentence applies, or is the case one in which it is appropriate to impose a dangerous offender sentence (life imprisonment or an extended sentence)?

  • If not, what is the shortest term commensurate with the seriousness of the offence?

  • Appendix A - Selected statutory provisions

  • Andrew Ashworth, University of Oxford
  • Book:
    Sentencing and Criminal Justice
    Published online:
    28 May 2018
    Print publication:
    20 August 2015, pp 461-464

  • Summary

    Criminal Justice Act 2003:

    s. 143 Determining the seriousness of an offence

    (1) In considering the seriousness of any offence, the court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused.

    (2) 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 …

    s. 144 Reduction in sentences for guilty pleas

    (1) In determining what sentence to pass on an offender who has pleaded guilty to an offence in proceedings before that or another court, a court must take into account –

    (a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and

    (b) the circumstances in which this indication was given.

    (2) In the case of an offence the sentence for which falls to be imposed under subsection (2) of section 110 or 111 of the Sentencing Act, nothing in that subsection prevents the court, after taking into account any matter referred to in subsection (1) of this section, from imposing any sentence which is not less than 80 per cent of that specified in that subsection …

  • 6 - Persistence, prevention and prediction

  • Andrew Ashworth, University of Oxford
  • Book:
    Sentencing and Criminal Justice
    Published online:
    28 May 2018
    Print publication:
    20 August 2015, pp 205-249

  • Summary

    This chapter examines the controversial question of sentencing repeat offenders, including the sub-group of ‘dangerous offenders’. After a brief historical introduction, part 6.2 explores four approaches to sentencing persistent offenders, and part 6.3 considers the relevant provisions of the Criminal Justice Act 2003. Parts 6.4 and 6.5 examine two specific problems, those of ‘professional’ criminals and of petty persistent offenders. In part 6.6 a different approach to repeated rule-breaking is examined – the use of civil preventive orders. Part 6.7 of the chapter turns to the question of selective incapacitation as a strategy for preventing crime, referring to the minimum ‘three strikes’ sentences in English law. In part 6.8 recent legislative attempts to provide suitable sentences for ‘dangerous’ offenders are assessed, and some concluding thoughts are found in part 6.9. Throughout these topics there are linking themes concerned with the promotion of security and the assessment of risk of future criminal behaviour. The invocation of such rationales amounts to a departure from the proportionality principle, and close attention will be paid to the justifications for this.

    Historical introduction

    The history of English measures aimed specifically at persistent offenders seems to be widely acknowledged as a history of failure. The judges have had sufficient discretion, for the last hundred years at least, to allow them to pass fairly long sentences on persistent serious criminals without invoking any special powers. But penal reformers and governments have invariably felt that no major set of reforms would be complete without making further special provision for persistent offenders. The Gladstone Committee in 1895 argued in favour of a special measure against persistent thieves and robbers, who would otherwise serve a succession of fairly short sentences and therefore return frequently to prey on the community. The Committee's proposals led, after much debate, to the Prevention of Crime Act 1908. This empowered a court to impose, upon an offender with three previous felony convictions since the age of 16, a sentence of preventive detention of between 5 and 10 years, in addition to the normal sentence for the crime (a so-called ‘double track’ system). The practical focus of the Act was soon revised when Churchill became Home Secretary in 1910.

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