Non-custodial sentencing

CHAPTER 10 Non-custodial sentencing In Chapter 9 the close connection between custodial and non-custodial sentencing was often evident, particularly when discussing the custody threshold. The present chapter aims to examine the principal non-custodial measures available to English courts, in the light of the Criminal Justice Act 2003. 1 In brief, four methods of disposal areunchanged(absolutedischarges,conditional discharges and bind-overs, compensation orders and fines), but the 2003 Act has replaced the diverse forms of community order with a single, generic community sentence. It has also reshaped deferment of sentence. First, it is necessary to consider the route by which the English system arrived at its present position. 10.1 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. 2 Community service orders (and compensation orders) formed part of the 1972 Criminal Justice Act. Newforms 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 progressin that direction, combinedwith concernamong 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 1Non-custodial measures for young offenders are dealt with in ch. 12 below. 2For an analysis of policy changes, see Bottoms (1987); Bottoms, Rex and Robinson (2004). 293 294 Non-custodial sentencing 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: The Government believes a new approach is needed if the use of custody is to be reduced. Punishment in the communityshould be an effective way of dealing with many offenders, particularly those convicted of property crimes and less serious offences of violence, when financial penalties are insufficient. The punishment should be in the restrictions on liberty and in the enforcement of the orders. All community service orders place restrictions on an offender’s liberty, and so may probation orders when, for example, they require an offender to attend a day centre for a lengthy period. The discipline exerted by these orders on offenders may extend over many months. These orders intrude on normal freedom, and the court should be satisfied that this is justified. 3 Thus, responding to the views of sentencers, the then government announced more demanding, ‘tougher’ orders which restricted liberty, and a more regular system of enforcement. The Criminal Justice Act 1991 therefore separated out six sentences (i.e. probation, community service, combination orders, curfew orders, attendance centres and supervision) and termed them ‘community sentences’. A seventh community sentence, the drug treatment and testing order, was added by s. 61 of the Crime and Disorder Act 1998. These were reinforced by the drawing up of National Standards, specifying the form that each community sentence should take, the contents of the order, the enforcement of the order and so forth. Since the 1991 Act the proportionate use of community sentences has increased significantly for both male and female offenders, but these increases have not been accompanied by reductions in the use of custody, which has also risen steeply. The consequence, asisevidentfromTable4 in Chapter 1,isthat the community sentences rose from 18 per cent in 1992 to 25 per cent in 2002 for adult men at the same time as the proportionate use of custody rose from 18 per cent to 30 per cent for that age-group. For adult women the rise in community sentences was from 22 per cent to 33 per cent at the same time as custody for this group increased from 6 per cent to 17 per cent. Overall, therefore, the displacement has been, not from custody to community sentences, but rather from suspended sentences and fines to community sentences and custody. The aim of increasing courts’ use of fines has not been realized, the abolition of the unit fine system by the Criminal Justice Act 1993 amounting to an abandonment of that policy. Thus, through their greater demands and tougher enforcement, community sentences have contributed to an increasingly punitive sentencing system. 3Home Office (1990), para. 4.3. 10.2 The absolute discharge 295 Brief mention should be made of the Criminal Justice and Court Services Act 2000, which (among other changes) altered the names of several major com- munity sentences. Immediately following the consolidation of sentencing law by the Powers of Criminal Courts (Sentencing) Act 2000, the government thought it desirable to rebrand certain community sentences. The probation order became the community rehabilitation order; the community service order became the commu- nity punishment order; and the combination order became the community punish- ment and rehabilitation order. Why this change was needed in 2000 remains difficult to fathom, not least because the new names were abandoned in the Criminal Justice Act 2003 in favour of a further set of names of (what are now) requirements forming part of a community sentence. This will be taken up again in part 10.6 below: its relevance here is to suggest that, at times, the development of community sentences has been more dogma than substance. The Criminal Justice Act 2003 makes major changes to non-custodial sentencing, but most of those changes concern community sentences. The Halliday report concluded that discharges and fines are working well as part of the sentencing system, and proposed no significant changes. 4 It is with those measures that the discussion begins. 10.2 The absolute discharge This is the least severe order which a court can make on conviction. It requires nothing from the offender, and imposes no restrictions on future conduct. The statutory provisions on discharges are consolidated in ss. 12–15 of the Powers of Criminal Courts (Sentencing) Act 2000. For many purposes an offence followed by an absolute discharge does not count as a conviction (s. 14 of the 2000 Act), but s. 134 of the Sexual Offences Act 2003 provides that a conviction followed by a discharge does count for the purpose of requiring sex offender notification. Absolute discharges are relatively uncommon, being granted in around 1 per cent of cases. They are generally reserved for the most venial of offences, committed in circumstances of little moral blame. We saw earlier that one criterion for cautioning or discontinuing a case is that the court ‘would be likely to impose a purely nominal penalty’. 5 If that test is conscientiously applied, most of the absolute discharge cases ought not to be prosecuted, and one might regard those that do end in an absolute discharge as ‘failures’ of the prosecution system. In his study, however, Martin Wasik argues that this might not always be so. He discusses three main reasons for granting an absolute discharge: where the offence is venial; where the offender had low culpability or high motivation, but the law does not provide a defence; and where the offender has suffered collateral losses or ‘indirect’ punishment as a result of the offence. Cases in the last category do not suggest any failure of prosecution 4Halliday (2001), paras. 6.15–6.19. 5 Ch. 1.4 above. 296 Non-custodial sentencing policy: whether they should result in mitigation of sentence has been discussed elsewhere. 6 10.3 Conditional discharges and bind-overs The conditional discharge has a similar legal framework to the absolute discharge. The condition which forms part of the discharge is that the offender should commit no further offence during the specified period, which may be up to three years. If a further offence is committed during the specified period, the court may sentence the offender not only for that offence but also for the original offence which gave rise to the conditional discharge. The statutory provisions on discharges are con- solidated in ss. 12–15 of the PCCS Act 2000. Section 134 of the Sexual Offences Act 2003 provides that a conviction followed by a conditional discharge does count for the purposes of sex offender notification and other orders under Part 2 of that Act. The essence of the conditional discharge is therefore a threat or warning: the court is prepared to impose no sanction for the present offence, on condition that there is no reoffending within the specified period. This is different from the suspended sentence of imprisonment, which should only be imposed where the present offence is so serious as to justify custody, and under which the second court has a qualified duty to activate the suspended sentence, whereas the second court has a wide discretion on breach of a conditional discharge. 7 David Moxon’s 1988 survey showed that in the Crown Court over half the conditional discharges were granted in theft cases, mostly involving little or no loss, often committed by people of fairly good character. 8 In their mid-1990s survey, Flood-Page and Mackie give no details on discharges granted by the Crown Court, but they report that in the magistrates’ courts conditional discharges were given to 11 per cent of men and 21 per cent of women. Stress, mental health problems and being a first offender were associated with decisions to grant a conditional discharge, and their interviews with magistrates revealed that it was often regarded as a difficult choice between a fine (immediate bite, no lasting effect) and a conditional discharge (no immediate bite, but a ‘sword of Damocles’ for a year or more). 9 The proportionate use of conditional discharges grew enormously in the 1980s but has steadied in more recent years. For males aged 21 or over, their use increased from 7 per cent in 1978 to 10 per cent in 1988 to 17 per cent in 1992, falling back to 14 per cent in 2002; for females aged 21 and over, the increase was from 19 per cent in 1978 to 27 per cent in 1988 and 36 per cent in 1992, falling back 6 Cf. Wasik (1985), pp. 229–33, with ch. 5.5.6 above. 7The suspended sentence was discussed in ch. 9.4.2 above; cf. Watts (1984) 6 Cr App R (S) 61 for an example of the Court of Appeal replacing a suspended sentence with a conditional discharge. 8Moxon (1988), pp. 47–8. 9 Flood-Page and Mackie (1998), pp. 53–4; it should be pointed out that many fines have more than an immediate bite, since many offenders pay by instalments over several months. 10.3 Conditional discharges and bind-overs 297 to 24 per cent by 2002. 10 The increases were unexpected because the police and the Crown Prosecution Service were receiving repeated guidance that it was not in the public interest to bring a prosecution where a nominal penalty was likely to result; if they had been predicting these cases accurately, one might have expected the discharge rate to decrease rather than increase. Similarly, the introduction of conditional cautions under the Criminal Justice Act 2003 might be expected to take away from the courts some cases that might otherwise result in a dis- charge, 11 but the effect on court disposals remains to be seen. Insofar as there is a policy on conditional discharges, it seems to be confused. The Halliday report referred favourably to conditional discharges, commenting that ‘the evidence shows that they are an effective disposal, attracting better than predicted reconviction rates’. 12 However, in two types of case – conviction for breach of an anti-social behaviour order, and sentencing a juvenile within two years of receiving a final warning – Parliament has seen fit to prevent courts from imposing a conditional discharge. 13 The power to ‘bind an offender over’ is a flexible creature of statute and common law, which may be applied to offenders, witnesses and indeed anyone involved in proceedings. 14 Some courts make considerable use of the ‘bind-over’ as a sentence, whereas others do not. In a survey for the Law Commission, almost three-quarters of bind-overs were for purposes other than sentencing 15 –afinding which raises important questions about the wide-ranging use of this power, especially where it operates as a quid pro quo in return for the dropping of a prosecution. As a sentence, the bind-over may amount more or less to a suspended fine. Under the Justices of the Peace Act 1361 an offender may be bound over in a certain sum to keep the peace for a specified period, on which there appears to be no limit. Breach leads to forfeiture of the sum. At common law an offender may be bound over in a certain sum to come up for judgment, apparently subject to almost any condition – in Williams (1982) 16 acondition of going to Jamaica and not returning for five years was not held unlawful. The common law power to bind a person over to be of good behaviour has been held to be too uncertain to be compatible with Article 10(2) of the Convention. 17 The Law Commission had warned of impending difficulties in 1994 and recommended the abolition of all forms of bind-over. However, many judges and magistrates continue to find the power ‘flexible’ and ‘useful’, and in 2003 10 See Tables 4 and 5 in ch. 1.3 above, and annual volumes of Criminal Statistics. 11 See ch. 1.4 above for brief discussion of conditional cautions. 12 Halliday (2001), para. 6.19, showing that the two-year reconviction rate was 2 per cent below expectation. 13 On ASBOs, Crime and Disorder Act 1998, s. 1(11), provides that ‘it shall not be open to the court by or before which he is convicted’ to impose a conditional discharge; s. 66(4) of the same statute prevents courts from imposing a conditional discharge on a juvenile who has received a final warning in the preceding two years unless the court finds ‘exceptional circumstances’. 14 For review and reform proposals, see Law Commission (1994). 15 Law Commission (1994), para. 4.3. 16 (1982) 4 Cr App R (S) 239. 17 Hashman and Harrup v. United Kingdom (2000) 30 EHRR 24. 298 Non-custodial sentencing the Home Office issued a consultation document that proposed retention of some forms of bind-over with enhanced procedural protections. 18 10.4 Compensation orders Although the idea of making offenders pay compensation to their victims has a long history, 19 it is only in the last thirty years that it has become a regular and significant element in English sentencing. The Criminal Justice Act of 1972 introduced the compensation order for injury, loss or damage. In the Powers of Criminal Courts Act 1973 it took its place alongside other measures such as the confiscation order for property used in the commission of crime (s. 43) and also the restitution order (s. 28 of the Theft Act 1968). One of the objectives of the 1982 Criminal Justice Act was to increase the use of compensation orders by courts, and among the changes it introduced were the possibility of making a compensation order as the only order in a case, and the principle that the compensation order should have priority over a fine where an offender has limited means. The strongest measure is that introduced by s. 104 of the Criminal Justice Act 1988, which requires a court to consider making acompensation order in every case involving death, injury, loss or damage, and requires the court to give reasons if it makes no compensation order in such a case. The 1991 Act raised the maximum to £5,000 in magistrates’ courts, and all the statutory powers and requirements are now consolidated in ss. 130–134 of the PCCS Act 2000. Systems of criminal justice ought to be concerned to assist victims no less than to deal fairly with offenders. Crime is no less ‘about’ victims than it is ‘about’ offend- ers. Indeed, the explanatory memorandum of the Council of Europe’s Convention on Compensation for the Victims of Violent Crimes includes the proposition that states have a duty to ensure that crime victims receive compensation, because the state is responsible for maintaining law and order, and crimes result from a failure in that duty. 20 There was, however, considerable reluctance to accept a state obligation in this country, although it was among the first to have a state scheme for criminal injuries compensation. 21 That has now developed into the Criminal Injuries Com- pensation Scheme, given a legislative framework by the Criminal Injuries Compen- sation Act 1995. The details of the scheme raise a number of important issues which cannot be pursued here, 22 but it is relevant to note that the minimum claim which the Criminal Injuries Compensation Authority will entertain is £1,000, and that the scheme is confined to crimes of ‘violence’. This means that the victims of minor vio- lence and the victims of all other forms of crime have to resort to civil proceedings or to hope for a compensation order in their favour from a criminal court. 18 Home Office (2003). 19 For debates in the nineteenth and early twentieth century, see Radzinowicz and Hood (1986), pp. 654–5. 20 Council of Europe (1984), Preamble. 21 Rock (1990), p. 273. 22 For full analysis see Miers (1997). 10.4 Compensation orders 299 Atamore pragmatic level, criminal justice systems rely heavily on victims for information about crimes and about offenders, and for evidence in court. It is only fair that, in return, the system should ensure that they receive the proper help and support. Apart from the Criminal Injuries Compensation Scheme, recognition of this is evident in government assistance for the spread of victim support schemes, to bring help, support and advice to the victims of burglary, rape and other crimes. Beyond that, there have been two Victim’s Charters (in 1990 and 1996) setting out the services and information which victims can expect to receive, but these were unenforceable. 23 Now the Domestic Violence, Crime and Victims Act 2004 provides for the issue of a Code of Practice for Victims (s. 32), provides for victims to be informed of the impending release of ‘their’ offender and for them to make representations on the matter (ss. 35–44), creates the office of Commissioner for Victims and Witnesses (ss. 48–51) and provides for the appointment of a Victims’ Advisory Panel (s. 55). These amount to the most visible attempt to recognize victims’ rights in statutory form. Whether they will improve the lot of victims remains to be seen: they have little bearing on the question of compensation. Returning to the compensation order made by a criminal court, this sits rather uncomfortably with other forms of sentence and order. It has a dual function: in many cases it operates simply as an ancillary order, to ensure some compensation to the victim in addition to the state punishment contained in the principal sentence; in other cases it becomes a central feature, as where it takes priority over a fine or accompanies a conditional discharge, and particularly where it is the sole order in the case. In the ‘ancillary’ cases it can be justified as a reparative element which accompanies the proportionate sentence. But some have found the task of justifica- tion harder when the compensation order is the principal or sole order in the case. How can this be regarded as sentencing when, in effect, the court is merely making arelatively ‘rough and ready’ award of damages to the victim? The offender would have been civilly liable to the victim in almost all cases and therefore, the argument goes, the court’s order amounts to nothing in sentencing terms – no punishment, but rather a kind of civil award made by a criminal court. 24 One counter-argument to this is that, in practice, very few victims sue their offenders; therefore, in prac- tice, the compensation order does transfer from the offender to the victim money which the offender would not otherwise have been made to pay. It may therefore be realistic to regard the compensation order as punitive in its effect on the offender, as well as reparative in relation to the victim. Another counter-argument would be that orders do not have to be punitive anyway: the compensation order should be applauded as a form of reparative justice, or at least as recognition that our system ought to be multi-functional rather than limited to punitive responses. How ought compensation orders to be used by the courts? Section 130 of the PCCS Act 2000 requires a court to consider an order in every case involving death or injury, damage or loss. It is well established that an order can be made in a case 23 Fenwick (1997). 24 See Barney (1989) 11 Cr App R (S) 448. 300 Non-custodial sentencing where the offence causes distress and anxiety. 25 Courts are empowered to make acompensation order for ‘such amount as the court considers appropriate’, but appellate courts remain reluctant to uphold orders unless the amount of the loss is agreed or proved, 26 and unless the grounds for liability are clear and not complex. 27 It is the prosecution’s duty to ensure that such evidence is available in court, and if there is no up-to-date evidence it would be wrong for the court to calculate the compensation on the basis of long-term effects which have not been proved. 28 The court should be satisfied that the offender caused the harm for which compensation is ordered, 29 although in public order cases where several offenders are convicted courts have not required proof that the particular offender actually inflicted the harm. 30 Section 130 requires the court to have regard to the means of the offender when deciding whether to make a compensation order and when deciding on its amount. It will be apparent that the characterization of compensation orders as essentially civil measures breaks down at this point, because awards of damages are not reduced to take account of the means of defendants. The law on compensation orders is the same as applies to fines, and the justification for this must be that compensation orders which were too high to be paid would be prison sentences in disguise. 31 Compensation orders are enforced as if they were fines, and imprisonment is the ultimate sanction for non-payment. This blurring of the civil and the criminal continues when we consider what assets of a defendant may be used to pay a compensation order: a court may be justified in ordering the sale of a moveable asset such as a car to pay compensation, so long as it has reliable evidence of the car’s value, 32 but it is usually regarded as wrong to order the sale of a family home in order to compensate the victim, unless the home was purchased substantially out of the proceeds of the offence. 33 No such indulgence would be granted by the civil courts, but the criminal courts prefer the interests of the offender’s family over those of the victim, presumably on the grounds that to impose too severe a burden might encourage further crime or might lead to the offender being imprisoned for default. The payment of a compensation order out of income may be stretched over two or even three years, if the court thinks this appropriate. 34 Such long orders may fail to ensure that the victim receives compensation when needed, may prolong the memory of the offence, and may end in default. It is regrettable that governments have not acted on the proposal that the court should pay the full amount of the 25 Bond v. Chief Constable of Kent (1982) 4 Cr App R (S) 314, Godfrey (1994) 15 Cr App R (S) 536. 26 Vivian (1978) 68 Cr App R 53; however, if a certain minimum loss is beyond dispute and a greater loss is contested and difficult to assess, the court should make the compensation order for the minimum loss: James [2003] 2 Cr App R (S) 574. 27 Horsham Justices, ex p. Richards (1985) 7 Cr App R (S) 158; White [1996] 2 Cr App R (S) 58. 28 Smith [1998] 2 Cr App R (S) 400. 29 Graves (1993) 14 Cr App R (S) 790. 30 Ta y lor (1993)14CrApp R (S) 276. 31 Panayioutou (1989) 11 Cr App R (S) 535. 32 See e.g. Martin (1989) 11 Cr App R (S) 424, a case where the offender was also sentenced to custody. 33 Cf. Holah (1989) 11 Cr App R (S) 282, also a case where the offender was imprisoned, with McGuire (1992) 13 Cr App R (S) 332. 34 Olliver and Olliver (1989) 11 Cr App R (S) 10, discussed below, part 10.5.6. 10.4 Compensation orders 301 compensation order to the victim immediately out of court funds, and should then recoveritfrom the offender in the ordinary way. 35 Soon after the introduction ofcompensation orders, the question of their relation to other sentences was raised. The words of Scarman LJ in Inwood (1974) 36 remain apposite: Compensation orders were not introduced into our law to enable the convicted to buy themselves out of the penalties for crime. Compensation orders were introduced into our law as a convenient and rapid means of avoiding the expense of resort to civil litigation when the criminal clearly has means which would enable the compensation to be paid. It therefore follows that an offender’s ability to pay compensation should not be allowed to deflect the court from imposing a custodial sentence or a community sentence, if that is what the offence justifies. 37 If this were not so, the law would permit wealthy offenders to receive reduced sentences, which would infringe the principle of equality before the law (see Chapter 7.1). It may be said that for less serious offences the law accords precedence to reparative over punitive elements, in that a compensation order has priority over a fine. But the priority is reversed for serious offences: thus, in Jorge (1999) 38 the Court of Appeal, reviewing the authorities, confirmed that it is generally wrong to impose a compensation order with a custodial sentence unless ‘either the defendant has assets from which to pay it, especially no doubt the proceeds of his crime, or he is reasonably assured of income when he comes out from which it is reasonable to expect him to pay’. Howfrequently do courts make compensation orders? The trend is for them to award compensation less and less frequently. Thus in the Crown Court some 21 per cent of offenders in 1989 and 1990 were ordered to pay compensation, but this had fallen to 7 per cent by 2002. One possible reason for this is that the rise in the use of custody has precluded the making of a compensation order in some cases. Thus, for example, in 2002 the Crown Court only made a compensation order in 17 per cent of cases of violence and 3 per cent of burglary cases. 39 There has also been adecline in the use of compensation orders by magistrates’ courts for indictable offences, from 29 per cent in 1990 to 15 per cent in 2002. An order was made in some 33 per cent of cases of violence and 52 per cent of criminal damage cases in 2002, but that was for indictable offences, and since common assault and most offences of criminal damage are summary only, it is worth noting that the number of compensation orders made in non-motoring summary cases increased from some 35,000 to 59,000 between 1992 and 2002. If one adds indictable and summary offences, the use of compensation orders by magistrates’ courts remained stable between 1992 and 2002. However, the study by Flood-Page and Mackie showed 35 See the prevarication in Home Office (1990), para. 4.25. 36 (1974) 60 Cr App R 70, at p. 73. 37 E.g. Copley (1979) 1 Cr App R (S) 55. 38 [1999] 2 Cr App R (S) 1. 39 Criminal Statistics 2002,Table 4.21. 302 Non-custodial sentencing that legal procedures were not being carried out in some cases: a magistrates’ court is required to give reasons if it does not make a compensation order, but in over 70 per cent of cases this was not done; in some cases magistrates said that they did not award compensation because the victim did not request it, a clear breach of the statutory requirement to consider it in every case of harm. 40 However, the most common reason for not making a compensation order was that stolen goods were recovered, and in some cases the offender’s income was thought too low to make an order. Some courts regarded it as pointless or counter-productive to make an order against an offender in the same household as the victim. Although the theory behind compensation orders is right, there are two signif- icant practical drawbacks from the victim’s point of view. First, an order can only be made if the offender is detected, prosecuted, convicted and not penniless. Since fewer than one-quarter of all reported offences are ‘cleared up’, and since around two-thirds of defendants are unemployed, a victim’s prospects of receiving com- pensation from this source are hardly bright. Second, the increased use of police cautioning has led to fewer cases being brought to court over the last twenty years. There are good reasons in favour of diversion, as we saw in Chapter 1.4, but the result of diversion was often to leave the victim without compensation. These two reasons, and the great increase in the use of custody, mean that fewer victims now receive compensation from their offenders than twenty years ago: in 1983 some 128,000 offenders were ordered to pay compensation to their victims, whereas in 1993 the figure was only 97,000, and in 2002 it stood at 103,000. The advent of the condi- tional caution may change this, since one of the conditions that may be imposed on cautioned offenders is that they pay specified compensation to the victim. 41 Sur- veys of victims have shown that they set particular store by receiving some money, evenif not full compensation,from the offender rather than from any other source. 42 10.5 Fines 10.5.1 Introduction The fine is the standard penalty for summary offences, and may be imposed for almost all indictable offences. Maximum fines are ranged on five levels according to the seriousness of the offence. Magistrates’ courts are in any event limited to a maximum of £5,000 in most cases, but the Crown Court has no overall limit. Over 90 per cent of all cases in magistrates’ courts result in a fine. Looking at indictable offences tried in magistrates’ courts or the Crown Court, around 60 per cent of adult male offenders were fined in the mid-1970s, but the figure had declined to 26 per cent by 2002, and to 20 per cent for adult women. Fines are the normal response to offences committed by companies, and the attendant difficulties are discussed in part 10.5.6 below. 40 Flood-Page and Mackie (1998), pp. 60–4. 41 See ch. 1.4 above. 42 Shapland, Willmore and Duff (1985). [...]... 6.5 above 102 SGC (above, n 100), para 1.1.10 103 Advisory Council on the Penal System (1970), para 33 315 316 Non-custodial sentencing Perhaps it was this range of reparative, retributive and rehabilitative functions which led to the swift adoption of community service orders into English sentencing practice Since then they have become more onerous: the 2000 National Standards state that work placements... imposed, rather than the total payment, this element in the new scheme might have been less open to 55 See Gibson (1990), and Moxon, Sutton and Hedderman (1990) 56 Home Office (1990), para 5.5 305 306 Non-custodial sentencing misinterpretation As it was, the press, and particularly one newspaper group, began assiduously to collect examples of different levels of fines being imposed on people who had committed... without insurance or without road tax, is that low fines make it profitable for those on low incomes not to pay car insurance or road tax But that consideration does not apply to this example 307 308 Non-custodial sentencing Moore at the turn of the century also reveals a failure of many benches to grasp the financial circumstances of some offenders.62 There appear to be two major barriers to fairer fining... appeal against the fines, Lord Lane remarking that it is ‘desirable if possible to keep people out of prison’ and that ‘if people can be dealt with properly by means of non-custodial sentences, and fines are possibly the best of all the non-custodial sentences, then that should be done’ This case was supremely difficult, involving as it did a conflict between the principle of equality before the law, the... seriousness of the offence: Jerome [2001] 1 Cr App R (S) 316 68 Flood-Page and Mackie (1998), p 106 69 (1989) 11 Cr App R (S) 10 70 See the discussion in ch 5.4.5 above 71 Moore (2003) 309 310 Non-custodial sentencing repayment period was set at one year by judicial decisions in the 1980s,72 but some commentators have assumed that the effect of Olliver and Olliver (1989)73 is to overturn this What... Charman et al (1996), p 3; Raine et al (2004) 82 See Moore (2004) 83 Moxon and Whittaker (1996); Moore (2004) 84 Whittaker and Mackie (1997) 85 [1996] 1 All ER 464 86 [1997] 2 All ER 204 311 312 Non-custodial sentencing just over 1,000 in 2002.87 A court may instead impose a community service order, a curfew with electronic tagging or disqualification from driving as a means of dealing with unpaid fines... Seriousness (2004), para 1.36 94 S 152(2) of the 2003 Act, discussed in ch 9.4.1 above 95 Halliday (2001), paras 6.2–6.5 96 Halliday (2001), paras 6.6–6.14 97 Halliday (2001), para 6.6 313 314 Non-custodial sentencing not tough enough nor do they allow the sentence to be matched to the individual offender’.98 This rhetoric was used to announce the introduction of ‘a customized community sentence’ The... sentence] may have unintentionally created an impression that fines should be reserved for the least serious cases, which is not the case’ 48 Halliday (2001), para 6.16 49 Morgan (2003) 303 304 Non-custodial sentencing Fines should replace community sentences for low risk offenders 30 per cent of community sentences are given to offenders at low risk of reoffending.50 Carter then went on to recommend... making this requirement The section mentions the possibility of requiring that the offender does not possess, use or carry a firearm; another possible 108 Rex, Lieb, Bottoms and Wilson (2003) 317 318 Non-custodial sentencing prohibition would be from driving a motor vehicle No maximum duration for this requirement is stated 5 Curfew requirement Section 204 of the Act provides that a court may require an offender... addiction and welcomed the court’s role 115 For further discussion, see ch 6.5 above and ch 13 below 116 E.g Attorney General’s Reference No 37 of 2004 (Dawson) [2005] 1 Cr App R (S) 295 319 320 Non-custodial sentencing in monitoring progress, but one frequently heard complaint is that the resources were not available for a sufficient number of orders (and indeed some areas ran out of earmarked funds).117 . CHAPTER 10 Non-custodial sentencing In Chapter 9 the close connection between custodial and non-custodial sentencing was often evident,. 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