We were asked by a Twitter follower to write a post about the human rights implications of deterrent or exemplary sentences.
One of the statutory aims of sentencing is deterrence. It is common sense that in addition to punishing, rehabilitating and sometimes providing recompense for victims, the law should operate as a deterrent to others. Prevention is better than a cure, as they say.
What is it and when is it appropriate?
A deterrent sentence is one which includes an ‘uplift’ from what has previously been the level of punishment in order to act as a disincentive to commit a particular crime.
The general view is that deterrent sentences are appropriate where the prevalence of a particular crime or type of behaviour is increasing.
The theory is that by imposing a deterrent sentence, or a sentence with a deterrent element, others will be disincentivised to commit/continue to commit such crimes as the increased penalty now outweighs the perceived benefit/gain.
It is necessary to perform a balancing exercise between the deterrent element and ensuring that the sentence remains proportionate for the crime.
The deterrent operates in two ways, firstly against the individual offender, to induce him or her into not committing that crime again (analogous to adding a bit on to a sentence if you have a string of similar previous) and secondly to operate as a deterrent to society as a whole.
Consider the situation where a driver receives 3 points and a £60 fine for speeding. The fine and the points (especially if there are existing points on the licence) may already operate as a deterrent, however, if the penalty was a £600 fine, or an instant ban, or even a short custodial sentence, one may say that drivers would instantly think twice about driving in excess of the speed limit.
R v Blackshaw and Others 2011 EWCA Crim 2312 (the conjoined appeals from the heavy sentences handed out in light of the August 2011 riots).
The court imposed deterrent sentences, which saw some receive sentences of 4 years.
Deterrent sentences were required because the fact that so many people with no previous convictions decided to participate. Why was that? Well, many were participating because they thought that they would not get caught, which suggests a respect not for the law, but for the consequences which breaking the law might bring. When the perception was that there were no consequences, there was no deterrent not to break the law. In turn, this required a tough response, to ‘send a message’ to those who take such an attitude.
Backed by statistical data demonstrating an increase in knife crime, it was felt that in order to quell the ‘trend’ in carrying and using a knife, a tough response was needed. In response, Parliament introduced a 6 month minimum sentence for certain knife offences. There is also a starting point of 25 years if a knife is taken to the scene and used in a murder.
Human rights considerations
Articles 3 (prohibition of inhuman, degrading treatment or torture) may be relevant – might an excessively long sentence constitute degrading treatment? Perhaps, but it appears somewhat unlikely (see the discussion on the case of Hall  EWCA Crim 82 last week). Article 8 (right to private and family life) appears most likely however, in that a deterrent sentence is disproportionate, arbitrary and therefore not a legitimate interference with the convention right under article 8, it is unlikely that any such argument would ever succeed in practice.
The primary argument against a deterrent sentence in practice is probably going to be either a) it wasn’t warranted or b) it was warranted but the sentence imposed was still too long, as opposed to a human rights based argument.
Deterrence (i.e. a reduction in crime) is a legitimate aim of sentencing. Where it can be shown that a deterrent sentence for an offence was necessary, because of its prevalence for example, such an argument would surely fail.
The case of R v Offen 2001 1 Cr App R 24 offers an interesting discussion of automatic life sentences, ‘exceptional circumstances’ and the ECHR.
Minimum sentences don’t appear to have worked, and from a lawyer’s point of view, they unnecessarily fetter the judge’s discretion and can make it more difficult for him or her to impose the correct sentence.
Taking burglary as an example, since the 3-year minimum for a 3rd domestic burglary offence was enacted, the number receiving a 3-year minimum sentence has risen. Sharply. Now this will in part be due to the fact that since it was enacted, more have been ‘eligible’ (i.e. collecting burglary convictions over time), and so it is expected that the numbers will increase, but over an 11 year period, the numbers are as follows:
2000: 6 2001: 20
2002: 116 2003: 226
2004: 380 2005: 448
2006: 498 2007: 593
2008: 737 2009: 788
2010: 891 2011: 993
Not much of a deterrent, eh? It may be that in many cases, deterrent sentences are more a political than legal consideration (knives, burglary, etc.). However, for something like perverting the course of justice, it is thought necessary to hand out heavy sentences to demonstrate that the justice system is to be respected.
However, after Joanne Fraill contacted a defendant on Facebook and received a stiff custodial sentence of 9 months, do you think jurors are less inclined to use the Internet to do some research into their trial? Judges do use such cases as examples when instructing jurors that they are not to perform their own research etc. In relation to Chris Huhne, if he escapes with a non-custodial sentence, then it may be that there is a rise in the number of instances of husbands and wives taking each other’s penalty points to avoid disqualification. If so, then the whole penalty point system falls apart. A custodial sentence demonstrates that the law is to be respected.
So, do they work? Save for the few situations (e.g. perverting the course of justice), it appears that deterrent sentences do not work.
How many offences involve a degree of planning (as opposed to spontaneous)? Of those, how many defendants will be aware of the likely sentence if they are caught? Not many. Immediately, the deterrent effect is reduced because it operates solely on people knowing about it.
Dan has written an interesting post (here) on some of the statistics used to justify deterrent sentences, and how deterrent sentences do not work.