Tag Archives: imprisonment

Huhne and Pryce – The argument FOR imprisonment

Most days of the working week my focus is upon improving prison conditions; upholding prisoners’ rights or trying to keep people out of, or get them out of prison. It may come as a surprise therefore when I appear on the ‘lock him up’ side of the Huhne sentencing argument.

It shouldn’t. The last lot, Labour created so many criminal offences that every citizen and company is guilty of something. Whilst doing so they diluted common law protections for the Defendant. Cue the Condemnation. The Conservatives who promised to guarantee traditional rights and their Liberal colleagues dedicated to the rule of law have set about dismantling the legal aid system. Under both Governments the prison population has been disproportionately high. Meanwhile, from the Cabinet Office, Ministers queue up at the microphone to criticise the latest judgment that goes against them whilst deciding en masse to ignore the judgment of the European Court of Human Rights.

The disregard for the Rule of Law and centuries of common law is palpable. Politicians have now taken to not only openly criticising those who interpret and practice the law but at times are attempting to completely ignore the law.

The utter arrogance of this political generation is astonishing. Huhne was correctly locked up. If nothing else it reminds those in Government that despite how they might wish otherwise they are still subject to the laws of this Country and require its protections as much as anybody else.

The sentence received by Huhne was well within the sentencing range laid down by the various range of authorities provided by the Court of Appeal. The course of public justice is only served when all of those who seek to pervert it are properly punished. There can be no doubt that Huhne’s position of public trust and the betrayal of that trust is massively aggravating.

My learned friend for keeping him out will no doubt say there is no rehabilitative effect of a short sentence, nor is Huhne a risk to the public and finally he will be so quickly in open conditions that there will be no punitive aspect to the offence.

That may well be true. But perverting the course of justice is about protecting a system. A public system of justice. Any sentence of less than imprisonment would have been outside the range of sentencing that a normal member of the public would have faced.

Prison for Huhne is a reflection of the fact that his offence was one against public justice. It shows too that politicians are not immune from the criminal law. Frankly, all of the present political generation ought to remind themselves of the concept of a public justice. The fact that someone is a politican is not a get out of jail free card.

Perhaps Huhne will also benefit from an epiphany as Aitken did. And once he is released perhaps he will share with his political generation the reality of a country who locks up too many prisoners, a criminal justice system which no longer protects the individual but is used as a political tool to try and satisfy a braying mass.

By @For_The_Defence

See FTD’s excellent blog http://forthedefence.org/about/

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Hospital Orders

Rehabilitation period 5 years (Rehabilitation of Offenders Act 1974 s 5(7))

Who can get one? There appears to be no age restriction.

 What does it mean? A court can, instead of ordering an offender to serve a term of detention or imprisonment, order them to be detained in a hospital, in order to receive treatment for a mental disorder.

Power

General Under MHA 1983 s 37(1), an order may be made where a person is convicted of an offence punishable with imprisonment and the test is satisfied.

Without conviction MHA 1983 s 37(3) provides a power to order without the need for a conviction, where the court is satisfied that the accused did the act or omission charged.

Test

The test which must be satisfied is:

  1. On the evidence of two medical practitioners, the defendant is suffering from a mental disorder, and the disorder makes it appropriate for him to be detained in a hospital for treatment, and that treatment is available.
  2. The court is satisfied, having regard to all the circumstances, that a hospital order is the most suitable method of dealing with the defendant. (MHA 1983 s 37(2))

The order is discretionary.

Human Rights Act 1998

R v Drew 2003 UKHL 25 held that Hospital Orders are not incompatible with the European Convention on Human Rights Articles 3 or 5.

Link between illness and offence

R v McBride 1972 Crim LR 390 held that there does not need to be a link between the offence and the illness.

Committals

When Magistrates’ Courts commit a defendant to the Crown Court under MHA 1983 s 43(1), they usually do so either on bail or in custody. Where they are satisfied, on written or oral evidence, that the proper disposal would be a Hospital Order, they may order him to be admitted to a hospital for him to be detained there until the conclusion of his Crown Court trial. (MHA 1983 s 44(1))

Restriction Orders

The power is contained within MHA 1983 s 41(1). The court must have imposed a hospital order before considering a restriction order.

These are only available for over 14s.

The test is if, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm, the court may impose a restriction order in addition to a hospital order.

The test is concerned with risk of future harm, not the seriousness of the risk that the defendant will reoffend.

Only the Crown Court can impose this order.

The restrictions include that the power to discharge, transfer and grant leave to the patient cannot take place without the consent of the Secretary of State. (MHA 1983 s 41(3))

 

Prison Categorisation

If someone is sent to prison then how they will be managed in custody depends on what sort of a risk they present (or that the prison think they present).

Men over the age 21 form the vast majority of the prison population. Adult male prisons are divided into ‘open’ and ‘closed’ prisons. Closed prisons are more secure and prisoners aren’t allowed out without an escort. The higher the categorisation, the more onerous the prison existence will be.

Within the prison service, prisoners are divided into four categories; imaginatively named A, B, C and D:

Category A – Prisoners whose escape would be highly dangerous to the public or the police or the security of the State and for whom the aim must be to make escape impossible.

Category B – Prisoners for whom the very highest conditions of security are not necessary but for whom escape must be made very difficult.

Category C – Prisoners who cannot be trusted in open conditions but who do not have the resources and will to make a determined escape attempt.

Category D – Prisoners who present a low risk; can reasonably be trusted in open conditions, and for whom open conditions are appropriate.

Prisoners who are in Categories A-C will be held in closed conditions. If someone is held on remand, then they will be allocated to Category B, unless they are going to be on trial for a very serious offence and would be allocated to Category A, in which case they will be held in ‘Provisional Category A’ conditions.

The categorisation exercise will be carried out after someone is sentenced and will be decided after looking at a variety of factors; the offence, previous offending, length of sentence etc.

As part of every person’s sentence plan, the prisoner will generally work their way through the various categories until they are in Category D from where they will be released.

Adult females are categorised in a similar way (although there are far fewer than males). Category A is the same, the equivalent of Category B is ‘Restricted status’, Category C is ‘closed’ and category D ‘open’.

Youths are categorised in the same way as adult females.

Full details are in the relevant PSI (Prison Service Instructions) which can be found here for men, here for women and here for youths.

Custodial Sentence for Youths

Sentencing for youths is very different than for adults.

Restrictions

A sentence of imprisonment can ONLY be passed on someone who is aged 21 at the time of sentence. In practice, if someone is aged between 18 and 21 it is relatively straightforward. The maximum sentences are the same as for adults, but, instead of prison, the person will be sentenced to detention instead.

This applies to the other types of prison sentences as well – it is suspended sentence of detention, detention for public protection etc.

Murder

For someone convicted of murder, they will be sentenced to ‘custody for life’ – in practice the same as life imprisonment. Someone under the age of 21 cannot be sentenced to a whole life tariff however.

If someone is aged under 18 then the starting point (whatever the circumstances) is 12 years. This does not stop the Court from imposing a tariff much higher than 12 years in the appropriate circumstances.

For murder, it is the same rules as an adult except that the sentence is called ‘detention during Her Majesty’s Pleasure’.

General approach

The general rule is that offences will be dealt with in the Youth Court. This a ‘branch’ of the Magistrates Court with specially trained judges. Instead of the 6 months, the maximum sentence that they can pass is 2 years (or the maximum sentence for an adult, whichever is lower). The form of prison is called a Detention and Training Order (DTO). As with adults, this involves spending half of the sentence in a detention centre and the other half in the community under supervision.

The difference however is that the Youth Court can only pass a DTO in specified ‘chunks’ of time; 4, 6, 8, 10, 12, 18 and 24 months.

If someone is under the age of 15 then a DTO cannot be imposed unless they are a ‘persistent offender’, meaning that they have been in trouble several times before. For someone aged under 12, a DTO cannot be passed unless the court thinks that only such a sentence would be adequate to protect the public from further offending from him.

There is no power requiring the judge to take into account any time spent on remand for a DTO. If someone has spent time on remand however, the Judge should take this into account, as far as is possible, when sentencing.

When youths are sentenced in the Crown Court

Certain offences can lead to a sentence of more than two years, but this has to be imposed in the Crown Court. The Youth Court can send certain cases to the Crown Court. This only applies to offences where the maximum sentence is 14 years or more and, if the defendant is aged over 14, then causing death by dangerous driving or causing death by careless driving whilst under the influence of alcohol or drugs. These cases are called ‘grave crimes’.

If the Youth Court considers that the dangerous provisions apply and that the youth, if found guilty, may get a Detention for Public Protection sentence or Extended sentence, then they must be sent straight to the Crown Court.

For firearms offences where the minimum sentencing provisions apply, the person must be sent for trial in the Crown Court.

If a youth is sentenced in the Crown Court then they will either be sentenced to a DTO (if the Judge feels a sentence of 2 years appropriate), or detention under section 91 otherwise.

Suspended Sentences

This is a prison sentence, but where the judge ‘suspends’ it for a period of time (not more than 2 years) on condition that you comply with certain conditions. There are 13 conditions that can be imposed, but the most common by far are unpaid work (what used to be called Community Service) of up to 300 hours of work of benefit for the community, or a curfew of between 2 and 12 hours for a period of time of up to 6 months.

Only sentences of between 14 days and 2 years can be suspended. This was amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, prior to which only sentences of 14 days to 12 months could be suspended. This change took effect on 3 December 2012.

If the offence for which someone is sentenced happened before 4th April 2005, then the judge can pass a suspended sentence, but only if the case is ‘exceptional’. If he does, no conditions can be attached to it.

Provided that you stay out of trouble and comply with the conditions, then the sentence is not activated. If either of those things happen however, then you can be taken back to court and ‘breached’. At that hearing, if the Court determines that you are in breach, you can be resentenced and that can include a prison sentence of any length up to the period that was previously suspended.

Overview – prison sentences

The news says that Mr Smith has just been sentenced to six months, or whatever the case may be. But what does that mean?

Age restrictions

You can only have a prison sentence if you are over 21 at the date that the Judge sentences you (there are similar but different sentences for people under 21).

What does it mean?

This is an order that a person is kept in prison for a specified, and definite period of time.

Maximums and minimums

The minimum period of a prison sentence in the Magistrates Court is 5 days. The maximum sentence that a Magistrates’ Court can pass is one of 6 months imprisonment (unless there are two either way matters, in which the court can pass a sentence of up to 12 months)

There is no minimum sentence in the Crown Court and, in theory, no maximum (other than the maximum sentence for the offence) although in practice sentences of over 20 years are very unusual (and reserved almost exclusively for large scale drug importation).

Release

The rules surrounding exactly when people will be released are very complex [INSERT LINK], but in essence, you will serve half the prison sentence actually in custody (in the prison) and then be released. The remainder of the prison sentence will be spent supervised in the community under the probation service.

Sometimes, people are released earlier on an electronic tag. Again, the rules are complicated, and it depends on the length of sentence and type of offence that lead to the prison sentence, but you have to have served six weeks and at least a quarter of the sentence and you can be released 135 days earlier.

Recall

If you break the terms set by the probation service, they you can be recalled to prison (unless this is because of a new offence, there will usually be a warning given first). If that happens, then you will be arrested and taken back to prison.

There are different sorts of recall, sometimes it will be for a fixed term of 28 days, sometimes to serve the amount of time from when the ‘notice of recall’ is issued to when your sentence would have expired. In either case, you can apply to the Parole Board to be released.

Sometimes you may spend more or less time than half the stated sentence in prison. If you misbehave in prison you can be ‘charged’ with an offence and, if it is found proved, have extra days added to the sentence.