Tag Archives: Community Orders

Huhne and Pryce – The argument AGAINST imprisonment

Prison should be reserved for those offenders who pose a risk to the public. Controversial it may be, but that is the only way that imprisonment can have a purpose and role in preventing re-offending.

Chris Huhne and Vicky Pryce arriving at Southwark Crown Court earlier

Huhne and Pryce were both convicted of perverting the course of justice, a serious offence carrying a custodial sentence of up to life imprisonment. But should such an offence carry a custodial sentence?  Personally, I would be happier to see Huhne and Pryce sentenced to a community order, repaying their substantial debt to the public by cleaning our streets or working in charity shops.  But the fact is, that was never going to happen.  Guideline cases suggested a custodial sentence of between 4 and 12 months would be suitable, and so Mr Justice Sweeney cannot be criticised in passing a sentence of eight months in respect of both of them.  But the reality is that they are likely to serve somewhere between 2 and 4 months, and be released on licence to serve the remainder in the community.

Two to four months in prison is undoubtedly going to be a shock to the system for the likes of Pryce and Huhne, neither of whom have been imprisoned before, but what good will it actually do?  It might give a feeling of satisfaction to the general public to see them shipped off to HMP Holloway and HMP Wandsworth, but have we considered who will be footing the bill of their stay?  For that would be us, the tax paying public.  It’ll cost us around £25,000 to feed and house the pair for them for 4 months, added to that is the cost of of the pair being on licence, post-custody, which the National Offender Management Service averages out at approximately £2,380 each.  Had they been sentenced to a community-based penalty, not only would they be providing a public service but the tax payer wouldn’t be footing the bill for their food and accommodation.  The costs of their supervision are estimated to be around £5,240 per offender.  Considerably less than the costs of incarceration.

What I advocate is a total change in sentencing powers and practice.  Prison should be reserved for violent offenders who pose a real threat to the public.  Our prisons should not be open to those who steal from shops, are addicted to cannabis or pervert the course of justice.  Individuals who have committed non-violent offences should be diverted away from incarceration and serve their sentences in the community.  Not only will this reduce the strain on our vastly overcrowded prisons and be cost-effective, but it will ultimately reduce re-offending as those serving custodial sentences will be subjected to intensive rehabilitation, the likes of which we simply cannot afford at present.  This is not a new idea, the Howard League for Penal Reform have long argued that a cut in prison sentences and an increase in community-based penalties will have a dramatic effect in lowering re-offending rates.  The fact is this isn’t going to happen overnight, but the increase in suspended sentences (now available for sentences of 24 months or less, an increase of 12 months since 2012) is a step in the right direction.  But we need to take more of those steps.  For things to change we need to see a total reform of criminal sentencing.  Only then will we see re-offending rates substantially reduce, which is, arguably, the most important aim of criminal sentencing.

Photo courtesy of BBC News

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Community Orders

Legislation Criminal Justice Act 2003 s 177
Who can get one? 18 years +
Rehabilitation period 5 years (Rehabilitation of Offenders Act 1974 s 5(4a))
Youths The Youth Community Order was replaced in 2009 by the Youth Rehabilitation Order.

The basics

A Community Order is a non-custodial sentence available to over 18s. The orders typically include a number of requirements with which the offender must comply. The requirements can be punitive, e.g. Unpaid work (what many people know as ‘Community Service’), preventive, e.g. an exclusion requirement (requiring the offender to stay out of a pre-defined area) or rehabilitative, e.g. a course aimed at curbing and treating a drug addiction.

Power to order

The order may be made upon conviction, by the Crown Court or the Magistrates’ Court. The court must impose at least one requirement. (CJA 2003 s 177(1))

The offence must carry imprisonment. (CJA 2003 s 150A)

Exclusions a) sentences fixed by law, b) required sentences under FA 1968 s 51A(2) and PCC(S)A 2000 ss 110-111, c) required sentences under VCRA 2006 s 29(4) or (6), d) sentences of IPP or DPP. (CJA 2003 s 150(1))
Multiple offences Where the defendant falls to be sentenced for multiple offences, careful consideration needs to be given to what eventual sentence will be imposed. Guidance should be sought from the Totality Guideline 2012, recently issued by the Sentencing Council.

Test

The court may only impose a community order if it is of the opinion that the offence(s) is serious enough to warrant such a sentence. (CJA 2003 s 148(1))

Any restrictions on liberty must be commensurate with the seriousness of the offence(s). (CJA 2003 s 148(2))

The types of order

Low level
Persistent petty offending, some public order offences, some thefts from shops etc. Where the defendant’s previous convictions mean a discharge or a fine are inappropriate.
Suitable requirements might be: 40-80 hours of unpaid work, curfew requirement within the lowest range, exclusion requirement lasting a few months, prohibited activity or attendance centre requirements.

Medium level
Handling stolen goods worth less than £1,000, some burglaries in commercial premises, some obtaining property by deception, some TWOC (taking a vehicle without consent) cases.
Suitable requirements might be: 80-150 hours unpaid work, activity requirement in the middle range (20-30 days), curfew requirement up to 12 hours for 2-3 days, exclusion requirement around 5 months, prohibited activity requirement.

High level
For offences which only just fall short of the custody threshold, or where the threshold is crossed by a community sentence is more appropriate. An example might be a standard domestic burglary by a first-time offender.
Suitable requirements might be: 150-300 hours of unpaid work, a 60-day activity requirement, a 12-month exclusion order, a curfew requirement of 12 hours per day for 4-6 months.

(New Sentences: Criminal Justice Act 2003 Guideline 2004)

The requirements

Must be suitable The requirements must be tailored to the particular offender. (CJA 2003 s 148(2))

List of available requirements
Activity (18+)
Alcohol treatment
Attendance centre (18-25)
Curfew (18+)
Drug rehabilitation
Exclusion
Mental health treatment
Programme
Prohibited activity
Residence
Supervision
Unpaid work

Imposing requirements Requirements are imposed on a case by case basis; that is, the judge (Crown Court), or the district judge or magistrates (Magistrates’ Court) will assess what is the most appropriate way in which to deal with the offender.

Examples A shop-lifter who steals to fund his drug habit may be suitable for a combination of supervision, drug treatment and unpaid work. The unpaid work will act as a punishment and attempt to establish some routine and consistency in the offender’s life, the drug treatment will address the motivation for offending, and the supervision acts as a method of monitoring the offender’s progress.

A man who has pleaded to cultivation of cannabis may be suitable for punishment and supervision. He may receive 240 hours unpaid work and supervision. With the absence of a drug-addiction (the motivation for the offending being financial), drug treatment would be unnecessary.

Length of the order

Maximum length 3 years (CJA 2003 s 177(5))
Requirements Some or all of the requirements may be imposed for a period shorter than that of the order, or may be completed before the termination of the order. (CJA 2003 s 177(5))

Discount for time spent in custody

Restrictions on liberty Regard may be had to time spent in custody when considering the restrictions to be placed on the defendant’s liberty by the Community Order (CJA 2003 s 149)

General rule Although the statute states that the court may have regard to the period on remand, it is generally accepted that the court ought to do so. (see e.g. R v Rakib 2011 EWCA Crim 870 and New Sentences: Criminal Justice Act 2003 Guideline 2004)

Period on remand not the determinative factor R v Rakib 2011 EWCA Crim 870 held that where the defendant had spent a significant period on remand, but the court considers a community order to be the appropriate sentence, the period spent on remand is not and cannot be a necessarily determinative factor in deciding what the correct sentence is (as R v Hemmings suggests). It may be that the period served on remand is such that the court considers no further punishment is necessary. Where the defendant has served a period on remand equivalent to the maximum sentence, there is still a discretion to impose a community order, even if that includes substantial restrictions on liberty.

Youth Rehabilitation Orders

Legislation Criminal Justice and Immigration Act 2008 s 1
Who can get one? Under 18s
Maximum length 3 years (CJIA 2008 Sch 1 para 32(1))
Rehabilitation period 1 year from the date of conviction, or when the order ceases to take effect, whichever is longer (Rehabilitation of Offenders Act 1974 s 5(5)(da))

The basics

A Youth Rehabilitation Order (YRO) can broadly be described as a juvenile equivalent to the Community Order. As the name suggests, the order is geared towards rehabilitation and a correction of behaviour, as opposed to straight punishment. However, the order does contain punitive elements and the court can make up the order in whatever way it deems appropriate, subject to some limitations.
The order must not last longer than 3 years, by which point, all the requirements must have been complied with.

Types of order

There are three:
a) YRO
b) YRO with Intensive Supervision and Surveillance
c) YRO with Fostering

Power to order

When a person aged under 18 is convicted of an offence, the court may imposed a YRO, imposing any one or more of the requirements listed below. (CJIA 2008 s 1(1))

Test

In order for a court to impose a YRO, it must be satisfied that the offence is serious enough. Where it is so satisfied, there remains a discretion whether or not to impose the order. (Youth Sentencing Guideline 2009)

Reports

Before making a YRO, the court must obtain and consider information about the offender’s family circumstances and the likely effect of a YRO on those circumstances. (CJIA 2008 Sch 1 para 28)

The requirements

List of available requirements
Activity (see paragraphs 6 to 8 of Schedule 1)
Supervision (see paragraph 9 of that Schedule)
Unpaid work, in a case where the offender is aged 16 or 17 at the time of the conviction, (see paragraph 10 of that Schedule)
Programme (see paragraph 11 of that Schedule)
Attendance centre (see paragraph 12 of that Schedule)
Prohibited activity (see paragraph 13 of that Schedule)
Curfew (see paragraph 14 of that Schedule)
Exclusion (see paragraph 15 of that Schedule)
Residence (see paragraph 16 of that Schedule)
Local authority residence (see paragraph 17 of that Schedule)
Mental health treatment (see paragraph 20 of that Schedule)
Drug treatment (see paragraph 22 of that Schedule)
Drug testing (see paragraph 23 of that Schedule)
Intoxicating substance treatment (see paragraph 24 of that Schedule)
Education (see paragraph 25 of that Schedule)
(CJIA 2008 s 1(1))

Imposing requirements Requirements are imposed on a case by case basis; that is, the court will assess what is the most appropriate way in which to deal with the offender in light of all the circumstances.

Persistent offenders

Special orders YRO with Intensive Supervision and Surveillance/Fostering A court may only make such an order if:
a) the court is dealing with an offender for an offence which is punishable by imprisonment,
b) the court is of the opinion that the offence(s) are so serious that […] a custodial sentence would have been appropriate, and
c) if the offender was under 15 at the time of conviction, the court is of the opinion that he or she is a persistent offender. (CJIA 2008 s 1(4))
Who is a persistent offender? Parliament left this question ‘to the good sense of the court’ (R v B 2001 1 Cr App R (S) 113 (p 389)
No previous convictions The fact that an offender does not have previous convictions does not preclude him from being categorised as a persistent offender (R v S 2001 1 Cr App R (S) 18 (p 62))
Cautions Cautions can be used when assessing whether an offender is a persistent offender (R v D 2001 1 Cr App R (S) 59 (p 202))

YRO with Fostering

What is it? An order which requires that the offender resides with a local authority foster parent for a period not longer than 12 months, and must not include any period in which the offender is aged 18.
Why is it imposed? These orders are made because the court is of the opinion that the circumstances in which the offender is living contributed to a significant extent to the offending behaviour and that such an order would assist in the offender’s rehabilitation.
Other The order must also include a supervision requirement.
The offender must be legally represented.

YRO with Intensive Supervision and Surveillance

What can it include? The order may include an extended activity requirement (maximum 180 days) and a curfew requirement with an electronic monitoring requirement.
Why is it imposed? Typically, where the court feels that a conventional YRO would not ‘fit the bill’ and that the offender requires a heightened level of supervision in order for it to achieve the desired effect.