Equality before the law

CHAPTER 7 Equality before the law 7.1 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 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. Protocol 12 to the Convention includes substantive and broader protection against discrimination, but it does not bind a member state unless that state ratifies it. 1 Apart from Article 14, English law contains no general principle of non- discrimination. This deficiency ought to be rectified: non-discrimination is a key aspect of the principle of equality before the law. Discrimination is wrong because it treats persons with certain attributes as worthy of less respect than others. Equality before the law declares that every person is entitled to equal respect from the law and its processes. There have been significant steps in recent years, notably the extension of the race relations legislation to the police and other criminal justice agencies by the Race Relations (Amendment) Act 2000. It might be argued that a direct statement of the anti-discrimination principle would besuperfluous where the proportionality principle has priority in sentencing. On that principle, sentences should be determined by reference to the seriousness of the offence; that involves consideration of the factors discussed in Chapters 4, 5 and 6, not others. This, however, brings us to the thematic questions in this chapter. Does English sentencing practice give grounds for believing that discriminatory factors are present in some cases? Even if discriminatory elements are not evident as primary reasons for sentence, do they exert an indirect influence through other 1Wintemute (2004). 219 220 Equality before the law factors such as unemployment, previous record or previous remand in custody? And, if so, should the principle of non-discrimination always be accorded greater weight than other relevant principles? The first and second questions are matters for empirical inquiry, and the evidence will be reviewed briefly below in relation to race, gender, employment status, social status and other factors. The focus hereis on sentencing but, as argued in Chapter 1.4, sentencing is merely a single stage in a sequence of decisions in the criminal process, and practices at earlier stages might exert a considerable (though perhaps unrec- ognized) influence on sentencing. On some of the points the available evidence is inconclusive, and definitive studies are awaited. The third question goes to the foundations of sentencing policy. It is sometimes presented as the issue of whether the sentencing system should simply try to avoid discrimination in its own decisions, or whether sentences should be calculated in an effort to counteract discriminatory forceswhich are known to operate more widely – leading in some instances to a kind of positive discrimination. This is an issue which we should keep in view, but there are more specific issues too. How should the prin- ciple of parsimony be related to the principle of equality before the law? Norval Morris and Michael Tonry put their answer strongly: ‘To insist that criminal A go to jail or prison because resources are lacking to deal sensibly with criminal B is to pay excessive tribute to an illusory ideal of equality.’ 2 They are content to see a white or employed person receive a non-custodial sentence in the same circumstances in which a black or unemployed person would be incarcerated. This furthers parsi- mony, in the sense that fewer people would be incarcerated by subordinating the principle of equality before the law in such instances. Morris and Tonry would rather have the system discriminatory than uniformly punitive. Others would argue that equality before the law is simply not negotiable: it is a principle which should not be compromised, and any concerns about over-punitiveness should be tackled through the overall system rather than by discriminating between individual offenders. Another aspect of this argument is that available statistics tend to suggest that those who suffer from certain social disadvantages (e.g. unemployed, no fixed address, no close family ties) are more likely to be reconvicted than those who are socially well established. A preventive sentencing strategy might therefore lead to the imposition of more onerous sentences on the disadvantaged, and corre- spondingly less onerous sentences on the well established. This, however, would be to pursue prevention at a fairly superficial level. Prevention at a deeper level requires a social strategy which tackles housing, employment, community facilities and related matters. To pursue preventive strategies through sentencing is as short- sighted as it is unjust. It tends to scapegoat a vulnerable group rather than to seek alonger-lasting solution. References will be made tothese themes in various parts below,and the arguments of principle will be reviewed in a concluding discussion. 2Morris and To n r y ( 1990), p. 33. 7.2 Race 221 7.2 Race 3 The clearest application of the principle of equality before the law is that no person should be sentenced more severely on account of race or colour. If sentencing is based strictly on the seriousness of the offence, discrimination on this ground should not occur. However, we have noted that although proportionality is the overriding principle of English sentencing according to the Sentencing Guidelines Council, s. 142 of the Criminal Justice Act 2003 requires courts to have regard to a miscellany of conflicting purposes. If this is interpreted as bestowing considerable discretion on the courts, then it will leave room for elements of discrimination to creep into sentencing, whether consciously or unconsciously. Is there any evidence to suggest that it might do so? Is there evidence that blacks or Asians are treated more severely than whites? 4 The most cited figures are that, while some 1 to 2 per cent of the general population is black, some 15 per cent of the male prison population and almost one-quarter of the female prison population are black. 5 Does this indicate discrimination in sentencing? First, it must be recalled that the offenders who come up for sentence in the courts are a selected group, resulting from various patterns of reporting, investigating and filtering in the pre-trial stages. The importance of regarding the sentence of the court as merely one stage in a lengthy process, signalled in Chapter 1.4,must be emphasized here. 6 It can be shown, for example, that blacks have been more likely to be stopped on the streets than whites or Asians, by a factor of around five to one. 7 These findings have been refined by Tony Jefferson and Monica Walker, whose study of the address and place of arrest of 5,000 people arrested during a six-month period showed that blacks have a higher arrest rate in predominantly white areas and that whites have a higher arrest rate in predominantly black areas. 8 There is evidence that white juveniles have been far more likely than black juveniles to be cautioned rather than prosecuted. 9 The charges brought against black people show a relatively high rate of victimless, preparatory and public order offences, 10 and a high rate of charges of robbery. 11 The extent to which these differences reflect real offending patterns or the influence of racial stereotypes on reporting and investigation remains to be examined. However, they certainly have consequences in the criminal process, inasmuchas a higher proportion of blacks appear at the Crown Court rather than the magistrates’ courts 12 – notably because robbery is triable only in the Crown Court 3Bowling and Phillips (2002). 4The term ‘blacks’ is used here to refer to people from an African-Caribbean background, the term ‘Asians’ includes both people from a background in the Indian sub-continent and those of south-east Asian origin. Neither term is ideal. 5 See ch. 9.6.3 below. 6 See further Fitzgerald (1993) and Bowling and Phillips (2002). 7Home Office (1999), Table 3.2. 8 Jefferson and Walker (1992). 9 Landau and Nathan (1983), discussed by Fitzgerald (1993), pp. 17–18. 10 Hood (1992), pp. 144–5. This category included drug offences. 11 Home Office (1999), Table 5.5, showed that some 54 per cent of persons arrested in London for robberywereblack. 12 Hood (1992), p. 51, and Fitzgerald (1993), p. 21. 222 Equality before the law and not because more blacks elect to be tried there – and, partly in consequence, a higher proportion of blacks are remanded in custody. 13 These findings go to establish that it would be a mistake to point to the sentencing statistics for black and white offenders or, even worse, the numbers of black and white offenders in prison, and to argue that the racial imbalance demonstrates dis- crimination in sentencing. The courts could pursue an absolutely impartial sentenc- ing policy in relation to the already skewed group of offenders coming before them, and the results would appear discriminatory. The need, therefore, is for research which takes proper account of all the major variables in sentencing (e.g. type of offence, previous convictions and so forth), which distinguishes at least between blacks, Asians and whites (rather than grouping blacks and Asians together), 14 which distinguishes between the Crown Court and magistrates’ courts, and which has sufficiently large numbers of non-whites in its sample. The study carried out in the West Midlands by Roger Hood (1992)meets most of these desiderata, although it was confined to Crown Court cases. Hood’s sample comprised 2,884 males, of whom half were white and half non- white (the latter including roughly twice as many blacks as Asians), and 443 females. It was thereforeone of the largest samples of Crown Court sentencing everprocessed, and it produced a number of familiar findings apart from racial issues. Thus custody ratesvaried among the courts studied, and this sentencing inconsistency persisted even after account had been taken of the different offence-mix and offender-mix of the various courts. Hood’s methodology included the calculation of expectancy scores for sentencing, based on the characteristics of offences and offenders apart from race, in an attempt to show whether race did exert an independent effect. One result of this exercise was to show that a higher proportion of blacks fell into the high-risk (of custody) category, whereas a higher proportion of Asians fell into the lowest risk category. 15 Comparing expected custody rates with actual custody rates, Hood found a ‘residual race difference’ of the order ofa5percentgreaterprobability of a black offender being sent to prison, which was greater at one court and lower at another. 16 The origins of this appeared to reside in the tendency of particular judges to deal relatively harshly with some blacks with low or medium expectancies of custody. The two characteristics of black offenders most highly correlated with severity were being aged 21 or over, and being unemployed. 17 If, therefore, we return to consider the fact that the proportion of black males in prison is around seven times as high as that in the general population, what causal inferences can be drawn from Hood’s study? He estimated that the bulk of the difference, some 70 per cent, was accounted 13 Hood (1992), pp. 148–9. 14 The Prison Statistics now distinguish between ‘South Asians’ and ‘Chinese and other’. 15 Hood (1992), pp. 68, 197; cf. Flood-Page and Mackie (1998), who, in a smaller study with less sophisticated analysis, found that custody rates for white, black and Asian offenders were broadly similar in both magistrates’ courts and the Crown Court. 16 Hood (1992), p. 78. 17 Hood (1992), p. 86 and ch. 6 generally. 7.2 Race 223 for by the number of blacks appearing at the Crown Court for sentence: this, in other words, reflects the influence of all the pre-trial decisions and filters discussed above. This should not be represented as a cumulative bias: the research suggests discrimination at several stages, but not at every stage. 18 What of the remaining 30 per cent of the difference? Hood estimated that some 10 per cent was accounted for by the more serious nature of the offences of which black offenders were convicted. No research has yet determined the extent to which blacks are disproportionately involved in more serious types of crime, or the extent to which the figures merely reflect stereotyping, labelling and deviancy amplifi- cation by the public and law enforcement officers. 19 A further 13 per cent was attributable to the imposition of longer sentences on black offenders, which was traced almost entirely to the greater propensity of black defendants to plead not guilty and, therefore, the unavailability to them of the sentence discount for pleading guilty. 20 The remaining 7 per cent was accounted for by the greater use of custody than expected. If the same analysis is carried out for black offenders under 21, some 92 per cent of the difference was attributable to the numbers appearing for sentence and the seriousness of their cases. Hood states that these estimates ‘must be regarded with a degree of caution’, 21 and in respect of sentencing decisions he argues that ‘in most respects Asian offenders did not fare worse than whites, nor did all Afro-Caribbeans’. 22 None the less, this remains Britain’s most careful and wide-ranging examination of race and the sentencing of male offenders, 23 and it makes a powerful case for vigilance rather than complacency about the existence of racial discrimination in sentencing. The problem of race in sentencing must be seen at three different levels, at least. First, there is the broadest level of social policy: unless there is an end to racial discrimination in society, it is likely to manifest itself in criminal justice no less than elsewhere. Although the Race Relations Act 1965 may be regarded as rather timid in retrospect, it was a first excursus into a hitherto unregulated field of social behaviour, at a time when strong views against immigration were often expressed. Since then the legislation has been strengthened, and the Race Relations Act 1976 both created the Commission for Racial Equality and set out to penalize both direct and indirect discrimination on grounds of race. As noted earlier, the Race Relations (Amendment) Act 2000 extended the legislation to cover the police and other criminal justice agencies, on the recommendation of the MacPherson Report. However, race issues are often woven into public concern about immigration and asylum seekers. In terms of social policy, they cannot and should not be isolated 18 Indeed, blacks have a higher acquittal rate: Fitzgerald (1993), p. 22. 19 See Cook and Hudson (1993), pp. 9–10. 20 Hood (1992), pp. 124–5; issues around the guilty plea discount are discussed in ch. 5.4.1 above. 21 Hood (1992), p. 130. 22 Hood (1992), p. 183. 23 Ch. 11 of Hood’s book discusses the sentencing of women, but the numbers of blacks and Asians in the sample were relatively small. 224 Equality before the law from more general inequalities in matters of wealth, employment and housing. This point is taken further in part 7.7 below. Second, there is the level of criminal justice administration. Racial awareness training of judges and magistrates has increased in recent years, through the work of the Equal Treatment Advisory Committee (known as ETAC). In respect of judicial training, for example, ETAC advises on the structure of the sentencing and procedure exercises that judges are asked to discuss during their seminars. Training of this kind may help to remove prejudices of which sentencers may be unaware – for example, one study found evidence that magistrates were influenced by demeanour in court and might misinterpret the body language of some defendants as ‘arrogance’, leading to an unsympathetic response. 24 ArecentstudybyHood,Shuteand Seemungal found that there were no major differences in the proportions of white, blacks and Asians who felt unfairly treated in the criminal courts. They did find that one- fifth of black defendants in the Crown Court believed that they had suffered unfair treatment as a result of racial bias (as did one in eight Asian defendants), proportions that are lower than some might expect but which are still unacceptably high. 25 Third, there is the level of criminal justice policy. Various initiatives, policies or targets may have impacts that amount to at least indirect indiscrimination. Thus, in the context of US criminal justice, Michael Tonry has argued that the ‘war on drugs’ has had racially discriminatory effects, and has resulted in the sacrifice of black youths (imprisoned at an extraordinarily high rate) in pursuit of a drug- control policy with no better prospects of success than certain less repressive and less discriminatory alternatives would have. 26 A similar analysis of sentencing for drug offences and robbery in this country would be likely to raise stark questions of the same kind. For example, the label ‘robbery’ probably has an inflationary effect on sentences that might disappear if the offence of robbery were abolished, leaving prosecutors and sentencers to focus on the theft and any offence against the person committed. 27 7.3 Gender 28 Just as racial discrimination in many fields is outlawed by the Race Relations Act, so sex discrimination in some fields is outlawed by the Sex Discrimination Act. And, as we saw in the previous paragraph, the provision in s. 95(1)(b) of the 1991 Act on the publication of information about discriminatory practices applies expressly to sex discrimination. Is there any evidence of discrimination against, or for, women in the sentencing system? The general statistics suggest that women are favourably treated at the sentencing stage. Some 24 per cent of adult women received a discharge for indictable offences 24 Hedderman and Gelsthorpe (1997), pp. 33–4. 25 Hood, Shute and Seemungal (2003). 26 Tonry (1995), esp. ch. 3. 27 Ashworth (2002b). 28 In addition to the works cited below, there are chapter-length treatments by Edwards (1993), Hudson (1998) and Heidensohn (2002). 7.3 Gender 225 in 2002, compared with 14 per cent of adult men; 33 per cent of women received acommunity sentence, compared with 25 per cent of men; and 17 per cent of adult women received immediate custody, compared with 30 per cent of men. If there is any discrimination suggested by these figures, it is against men, not women. However, the figures cannot be taken at face value. Much depends, in the first instance, on the types of offence typically committed by men and by women. Some 66 per centof females found guilty or cautioned for indictable offences have commit- ted theft, usually shop theft, compared with only 44 per cent of males. For burglary and drug offences, the positions are reversed. 29 Asecondvariable is the court in which an offender is sentenced: a higher proportion of women are sentenced by magistrates’ courts, and the research evidence shows that the Crown Court tends to pass significantly more severe sentences in comparable cases. 30 A third variable is criminal record: in Moxon’s Crown Court survey some 46 per cent of the females were first offenders, compared with 22 per cent of the males. The average number of previous convictions was 5.3 for males and 2.1 for females. 31 A small study by David Farrington and Allison Morris found that, taking account of variations in type of offence and previous record, the gender of the offender seemed to have little or no independent effect on sentence. 32 Asubsequent study by Lizanne Dowds and Carol Hedderman found that, taking account of the usual variables, women shoplifters were less likely than men to receive a custodial sentence, whether as first offenders (1 per cent and 8 per cent respectively) or as repeat offenders (5 per cent and 15 per cent). 33 Women were more likely toreceivea community sentence and to receive a discharge, but this seemed to be because sentencers were often reluctant to fine a woman in circumstances where they would fine a man. 34 Insofar as this is true, it may mean that some women received a more severe sentence (a community sentence) that some men, because they were thought unable to pay a fine. However, it has long been suggested that the whole orientation of sentencing for women is different: the emphasis in pre-sentence reports, speeches in mitigation and sentencing seems to be on some pathological or abnormal explanation for the offending. 35 This might be a separate strand of explanation for the higher use of community sentences, particularly those involving supervision. Thus, Farrington andMorris found that divorced and separated women receivedrelativelymoresevere sentences than married women, as did women regarded as ‘deviant’ (e.g. unmarried 29 Flood-Page and Mackie (1998), p. 134. 30 Hedderman and Hough (1994), drawing on Hedderman and Moxon (1992). 31 Moxon (1988), pp. 53–4. 32 Farrington and Morris (1983). 33 Dowds and Hedderman (1997), p. 11. 34 Magistrates interviewed by Gelsthorpe and Loucks (1997), ch. 4, were often reluctant to fine women because they had no independent means and/or because taking money from them might make their child-care responsibilities more difficult. 35 Gelsthorpe and Loucks (1997), ch. 3, recording the tendency of the magistrates they interviewed to regard women offenders as ‘troubled’ rather than ‘troublesome’. 226 Equality before the law mothers with no employment) rather than as ‘normal’. 36 The other side of this coin is that the traditional family unit is adopted as the centre of normality. Where women do have family responsibilities, these sometimes militate in their favour; 37 those with less conventional lifestyles tend to be viewed unsympathetically, as do those who fail to exhibit expected female responses in court (tearful, apologetic, respectful). 38 When dealing with most female offenders, however, it appears that magistrates give much greater weight to mitigating factors and, in particular, strive harder to avoid a custodial sentence than when sentencing a male. 39 Arewomen treated more leniently? In overall terms the answer might appear to be affirmative; but, on the basis of their research projects, Dowds and Hedderman and Gelsthorpe and Loucks draw a different conclusion. They point out that men and women stood an equal chance of going to prison for a first violent offence. However, among repeat offenders, women wereless likelyto receive a custodial sentence. Women first offenders were significantly less likely than equivalent men to receive a prison sentence for a drug offence, but recidivists were equally likely to go to prison. 40 This shows, the authors argue, that women do not consistently receive more lenient treatment than men. Rather, their sentencing patterns are more likely to reflect ‘the fact that men and women who come to court differ across a wide range of factors which sentencers take into consideration when determining an appropriate sentence’. 41 This refers to the effect on women’s sentencing of factors such as the primary responsibility for child care, no independent income and a more respectful or remorseful attitude in court. But one could certainly argue that the patterns found by these authors point to heavily stereotypical reasoning by some sentencers. 42 Indeed, as suggested above, there may be two sets of divergent social stereotypes at playhere–aformofchivalrythat regards women as behaving irrationally if they offend (‘troubled’, ‘disturbed’) and therefore as deserving sympathy, and a form of rejection which bears down harshly on women who depart from conventional social roles. 43 It can be strongly argued that the focus should not just be on gender but also on other reasons why women and men may be treated unfairly by the criminal justice system. We have already met one example of this: black women. The figures quoted in part 2 above showed that a quarter of the female prison population are black, around 13 times as many as in the general population. Some of these will be on remand, but that in itself is a cause for concern. Some will be convicted or alleged drug couriers from other countries. The justifications for imprisoning 36 Farrington and Morris (1983). 37 On the mitigating effect of such factors, see ch. 5.4.5 above. 38 See the remarks of the magistrates quoted by Gelsthorpe and Loucks (1997), pp. 30–4. 39 Gelsthorpe and Loucks (1997), ch. 4. 40 Gelsthorpe and Loucks (1997), p. vii. 41 Gelsthorpe and Loucks (1997), p. 55. 42 See also the study of male and female child-killers by Wilczynski (1997), identifying different official responses to the two groups. 43 See Morris (1988). 7.4 Employment status 227 women in these and other cases need re-examination: the proportionate use of custodial sentences for women has grown even more steeply for women than for men in recent years: for adult men the rise was from 18 per cent in 1992 to 30 per cent in 2002, whereas for women it was from 6 per cent to 17 per cent. The report of the Committee on Women’s Imprisonment made a strong case for reversing this trend, and for wider use of diversion to respond to the needs of women offenders. 44 The government created a Women’s Offending Reduction Programme in 2001, but it is not clear what effects it has had. The Probation Service has begun to develop what is known as the ‘Real Women Programme’, involving special forms of group work aimed specifically at women offenders, particularly those convicted of acquisitive crimes, but evaluation remains at an early stage. 45 Is it right in principle that women should receive equal treatment to men? The answer, surely, is that the same principles should be applicable to both. This might still mean that women would generally receive lesser sentences, inasmuch as their crimes are less serious and their previous records better. It might also mean that women can more frequently have the benefit of certain mitigating factors connected with family responsibilities, even if the same principle is capable of operating in favour of men. But that raises the question of whether family responsibilities should be regarded as so central to mitigation. Mary Eaton has argued that ‘by judging both female and male defendants in the context of their families, the court displays not impartiality, or equality of treatment, but its role in preserving differences based on sexual inequality’. 46 This questions the role that courts should and could perform when sentencing. Are they to attempt to equalize the treatment of the sexes through sentencing and, if so, how? One practical step would be to ensure that the full range of sentencing options is available for women, especially those with child-care responsibilities, and that they are tailored to women’s needs rather than based on research relating to male offenders. 47 A further practical step would be to ensure that sentencers receive ‘gender awareness’ training, partly because many courts deal with women so rarely, and partly to encourage them ‘to reflect on how cultural and gender-specific stereotypes inform their practices and perceptions in the courtroom in wayswhich could lead to unfair sentencing’. 48 The general question about sentencers’ responsibilities in relation to wider social inequalities must be left until part 7.7 below. 7.4 Employment status We have alreadyseen, in Chapter 5.4.5 above, that a good work record may constitute apowerful factor in mitigation. Understandable as it is that courts should wish to avoid passing a sentence which will result in an offender losing a job, one result of 44 Prison Reform Trust (2000); see further ch. 9.6.2 below. 45 Home Office (2004). 46 Eaton (1986), p. 98. 47 This is the point of the Real Women Programme, above n. 45. 48 Gelsthorpe and Loucks (1997), p. 58. 228 Equality before the law this approach may be that unemployed offenders come off worse. This ground of mitigation is unavailable to them. The significance of the problem is clear from a survey in the mid-1990s, showing that some two-thirds of sentenced offenders in the magistrates’ courts and in the Crown Court were unemployed. 49 Particularly interesting, in the light of the discussion in part 7.2 above, was the finding that in magistrates’ courts 75 per cent of black offenders were unemployed, compared with 64 per cent of white offenders and 48 per cent of Asians; the figures for the CrownCourt were somewhat similar, at 77 per cent, 65 per cent and 64 per cent respectively. 50 Is there evidence that sentencing practice discriminates against the unemployed? Four surveys might be mentioned. The first, by Iain Crow and Frances Simon, studied six magistrates’ courts with different patterns of custody use in three areas with different unemployment rates. Their broad finding was that the effect of employment status on sentencing was generally small. Like many other English researchers, they found that the type of offence and the offender’s criminal record were the most powerful factors. However, there were some distinct patterns among the six courts. They all tended to use fines more for employed people, whereas unemployed people tended to receive more probation, discharges and other sen- tences (including custody). Even so, they found that unemployed offenders who were fined were more likely to default – largely because fines tend not to be reduced in road traffic cases to reflect the offender’s means. 51 Some of these findings received support from Moxon’s study of sentencing in the CrownCourt. Unemployed offenders were more likely to be placed on probation, and less likelytobe fined, than employed offenders. 52 Being employed was associated with a lower probability of custody than being unemployed, and offenders who said that they had secured a job between crime and conviction also tended to have alower chance of custody. Those who were unemployed also tended to receive longer custodial sentences, but it was suggested that this may simply mean that they had committed more serious offences and were therefore more likely to have been dismissed from their job, or remanded in custody and lost their job, and so forth. Third, Flood-Page and Mackie’s study of sentencing in the mid-1990s shows the effect of employment status on courts’ use of the fine. In the magistrates’ courts some 82 per cent of employed first offenders were fined, compared with 57 per cent of unemployed first offenders; for recidivists the contrast was between 53 per cent and 43 per cent. 53 In the Crown Court a higher proportion of those given custodial sentences were unemployed (64 per cent) than employed (47 per cent). 54 These findings tend to confirm those from a 1994 Home Office survey, which showed 49 Flood-Page and Mackie (1998), pp. 117–19. 50 The study of race and sentencing by Hood (1992) showed that being unemployed was a significant factor in producing greater sentence severity for black offenders aged 21 and over, although not for whites or Asians. 51 Crow and Simon (1989). 52 Moxon (1988), pp. 44, 47. 53 Flood-Page and Mackie (1998), p. 49. 54 Flood-Page and Mackie (1998), p. 79. [...]... sentences.76 There is good reason to pay renewed attention to the practical application in sentencing decisions of the principle of equality before the law What this chapter has shown, however, is the complexity of doing so Equality before the law is not the only principle or policy which may be relevant here, and so there are conflicts to be resolved One obvious conflict is that between equality before the law. .. weight than the principle of equality before the law In their view, proportionality merely sets loose outer limits to the severity and leniency of punishments for particular crimes They argue that the concept of cardinal proportionality is so uncertain in its application that this undermines the whole basis of desert theory There are no criteria for determining the anchoring points of the scale, they say,... adjusted to the means of the offender In the present context the most important aspect is that the size of the fine be reduced for an offender of limited means, a principle long established in the law The courts resisted the corollary that fines should be increased for the wealthy, but since 1991 there have been legislative provisions embracing the principle of equal impact and stating that the fine should... losses than others The fact that there is appellate authority for the application of the principle of equality before the law in sentencing does not exclude the possibility that other factors may operate at earlier stages As with race and financial resources, it remains probable that social status is sometimes influential at the stage of deciding whether or not to prosecute, or even whether or not to... characterize the principle of equality before the law as a principle of equality of suffering, since it refuses to allow more lenient sentences for certain offenders if the result would be to discriminate on improper grounds against others They oppose equality of suffering because their utilitarian concern is the reduction of suffering in as many cases as possible They deny that this will infringe the principle... (S) 283 231 232 Equality before the law with the legally aided defendant, not to mention the defendant with a retained solicitor or barrister Moreover, it has been strongly argued that class differences exert considerable influence in the courtroom, whether or not the defendant is represented.68 Perhaps the greatest influence, however, occurs before cases come to court From the outset there is a greater... luxury’ was the objective.63 Although some might baulk at calling this a mitigating factor, it certainly takes the crime towards the lower rather than the upper end of the range of seriousness Need is a less anti-social and selfish motive than greed, and the distinction is one of which unemployed offenders might properly have the benefit 7.5 Financial circumstances The principle of equality before the law indicates... signal the dangers to the principle of equality before the law that flow from the increasing emphasis on risk assessment We have seen in Chapter 6 how significant the idea of prediction is in sentencing law, and we shall see in Chapter 12 how prominent a place is coming to be given to risk assessment in the social response to offending by young people and by the mentally disordered The greater the focus... make the wrong comparison The £7,000 ought to be compared with the relative seriousness of the offence and the offender’s means; it should not be related directly to the amount involved in the offence, since that is only one of the factors relevant to its seriousness (breach of trust being another) Under the kind of day fine system used widely in other European countries and some US jurisdictions,73 the. .. theorists are not asking for special-case leniency, but are challenging the present assumption that the male penal norm is generalisable’.83 Reducing levels of penalty for males would be a splendid application of the principle of parsimony Commitment to the principle of equality before the law may appear empty when there is so much inequality evident in society Social unfairness may be largely the . CHAPTER 7 Equality before the law 7.1 The principle and its challengers The constitutions of many countries proclaim a principle of equality before the law or. recording the tendency of the magistrates they interviewed to regard women offenders as ‘troubled’ rather than ‘troublesome’. 226 Equality before the law mothers