Persistence, prevention and prediction

CHAPTER 6 Persistence, prevention and prediction In the course of this chapter there will be detailed discussion of a group of sentencing issues which lead to considerable practical and theoretical difficulties. After a brief historical introduction, part 2 explores three possible approaches to sentencing persistent offenders, and part 3 considers the relevant provisions of the Criminal Justice Act 2003. Parts 4 and 5 examine two specific problems, those of ‘professional’ criminals and of petty persistent offenders. In Part 6 a new approach to prevention is examined – the use of anti-social behaviour orders. Part 7 of the chapter turns to the question of selective incapacitation as a strategy for preventing crime, referring to the minimum sentences in English law. In part 8 the ‘dangerousness’ provisions of the 2003 Act are examined, and some concluding thoughts are found in part 9. Throughout these topics there are linking themes concerned with the promotion of security and the assessment of risk of future criminal behaviour. The invocation of such rationales amounts to a departure from the proportionality principle, and close attention will be paid to the justifications for this. 6.1 Historical introduction The history of English measures aimed specifically at persistent offenders seems to be widely acknowledged to be a history of failure. The judges have had suffi- cient discretion, for the last hundred years at least, to allow them to pass fairly long sentences on persistent serious criminals without invoking any special pow- ers. But penal reformers and governments have invariably felt that no major set of reforms would be complete without making further special provision for persistent offenders. The Gladstone Committee in 1895 argued in favour of a special measure against persistent thieves and robbers, who would otherwise serve a succession of fairly short sentences and therefore return frequently to prey on the community. The Committee’s proposals led, after much debate, 1 to the Prevention of Crime Act 1908. This empowered a court to impose, upon an offender with three pre- vious felony convictions since the age of 16, a sentence of preventive detention of between five and ten years, in addition to the normal sentence for the crime (a 1Radzinowicz and Hood (1986), pp. 265–78. 182 6.1 Historical introduction 183 so-called ‘double track’ system). The practical focus of the Act was soon revised when Churchill became Home Secretary. He took the view that the Act, as it was being administered, concentrated unduly on mere repetition in lawbreaking, and he exposed the minor nature of some of the offences which had led to the impo- sition of preventive detention. He issued a new circular which declared that ‘mere pilfering, unaccompanied by any serious aggravation, can never justify’ preventive detention, and propounded the general test of whether the nature of the crime was ‘such as to indicate that the offender is not merely a nuisance but a serious danger to society’. 2 The aim of preventive detention thus became that of ‘protecting society from the worst class of professional criminal’. In fact, the courts often found their ordinary sentencing powers sufficient in such cases, and so the use of preventive detention declined. Anew form of preventive detention was introduced in the Criminal Justice Act 1948 for persistent offenders aged 30 or over, being a sentence of 5 to 14 years instead of (not in addition to) the normal sentence. The Dove-Wilson Committee in 1932 had proposed this as suitable chiefly for ‘professional criminals who deliberately make a living by preying on the public’, 3 but when the legislation was introduced in 1948 the government envisaged that it would also cover ‘the relatively trivial [per- sistent] offender’. 4 Judges soon found themselves passing sentences of preventive detention on offenders whose records, while showing persistence, were not serious. In the late 1950s the judges increasingly set their faces against this, and in 1962 the Lord Chief Justice went so far as to issue a Practice Direction to restrict the use of preventive detention. 5 Following a gloomy report from the Advisory Council on the Treatment of Offenders (1963) and two other studies which demonstrated the minor nature of many of the offences committed by those subjected to preventive detention, 6 the sentence virtually fell into disuse. The next measure to be introduced was the extended sentence: the Criminal Justice Act 1967 empowered a court to extend a sentence beyond the normal length or (in limited circumstances) beyond the statutory maximum where it apprehended the need, in view of the offender’s record, to protect the public. The White Paper of 1965 had proposed the extended sentence for those offenders who constitute ‘a real menace to society’, 7 but a parliamentary amendment which would have required the court to have regard to the gravity of the current offence was not accepted by the government. Once again the courts soon found that those falling within the ambit of the sentence could hardly be described as real menaces, and at no stage did the extended sentence play a significant part in sentencing practice. In some respects the Criminal Justice Act 1991 was a slight improvement, since s. 2(2)(b) permitted courts to pass a longer than proportionate sentence for a violent or sexual offence if it was of opinion ‘that only such a sentence would be adequate 2Radzinowicz and Hood (1986), p. 285. 3 Dove-Wilson (1932), para. 42. 4Hammond and Chayen (1963), p. 11. 5 See [1962] 1 All ER 671. 6Hammond and Chayen (1963), West (1963). 7 Home Office (1965). 184 Persistence, prevention and prediction to protect the public from serious harm from him’. The Act did attempt to define ‘violent’, ‘sexual’ and ‘serious harm’, but the provision was vague on crucial issues and unacceptably wide in its scope as interpreted by the courts. 8 The power to impose longer than proportionate sentences appears to have been used relatively rarely in recent years, perhaps (again) because courts tend to give long sentences for serious offences anyway. Thus a brief historical survey reveals two recurrent difficulties. First, legislation on persistent offenders has usually been framed in broad terms, often without clear and precise guidance about the types of offender to be included and excluded. Second, and more fundamentally, there has been little agreement about the group or groups of offenders who should be the target of special sentences. Terms such as ‘professional criminals’ and ‘real menaces’ have been used without much effort at precision, and when the law did eventually specify violent and sexual offenders, many of those included were at the lowest end of the scale. 6.2 Three approaches to punishing persistence The differing views which have been expressed on the sentencing of persistent offenders do not always fall neatly into categories, but three paradigms are (i) flat- rate sentencing, (ii) the cumulative principle, and (iii) progressive loss of mitigation. The aim here is to offer a description of each approach, to consider its rationale, and to weigh the advantages and disadvantages. 9 6.2.1 Flat-rate sentencing According to this approach, the sentence should be governed by the crime and not at all by the offender’s prior record. This view has been advanced by a small group of desert theorists, most notably George Fletcher 10 and Richard Singer. 11 Their argument, in brief, is that an offender’s desert should be measured by reference to the crime committed, in terms of its harmfulness and the offender’s culpability in relation to it. Any previous offences cannot have a bearing on this. Indeed, not only are they irrelevant to the calculation, but to take them into account would be to punish the offender twice over – if sentence has already been passed for the previous offences, it is unjust to increase the sentence for a subsequent crime on account of apreviously punished offence. Fletcher suggests that desert theorists who do take account of previous offences are indulging in a covert preventionist strategy. Since the increased sentence cannot be justified on desert grounds, says Fletcher, such writers are really trying to achieve a modest amount of individual prevention or incapacitation in such cases. There are few practical examples of flat-rate sentencing schemes. Illegal parking of cars is one: the penalty does not increase according to the number of previous offences, and one could commit the offence every day without ever receiving more 8 See the 3rd edn of this work, pp. 183–9. 9 For fuller discussion see Roberts (1997). 10 Fletcher (1978), pp. 460–6. 11 Singer (1979), ch. 5. 6.2 Three approaches to punishing persistence 185 than the fixed penalty. Many other minor offences have fixed penalties or such low maximum fines that they may be viewed as flat-rate offences. If a case goes to court, that creates an opportunity for the penalty to be mitigated for a poor or first-time offender – an opportunity ruled out by flat-rate sentencing. Indeed, since there can be no concession for the impecunious or first offender, the practical question arises of the level at which flat-rate penalties might be set if they are to be defended as proportionate. 6.2.2 The cumulative principle Since at least the mid-nineteenth century there has been support for the cumu- lative principle of sentencing persistent offenders. The basic idea is that, for each new offence, the sentence should be more severe than for the previous offence. In this way sentences should be cumulative, with a view to deterring the individ- ual offender from repeating the crimes. Perhaps the best-known exponent of the cumulative principle was the Gloucestershire magistrate Barwick Lloyd Baker. In 1863 he proposed that for a first felony conviction the punishment should be one week or ten days’ prison on bread and water; for the second conviction 12 months’ imprisonment; for the third, seven years’ penal servitude; and for a fourth, penal servitude for life or for some very long period which would allow surveillance on ticket-of-leave for the greater part of the criminal’s life. He saw this as achieving protection through individual deterrence, and had no doubts about its fairness: ‘if youtell a man clearly what will be the punishment of a crime before he commits it, there can be no injustice in inflicting it’. 12 That harsh approach made no allowances for the fact that some offences were minor and some stemmed from human weakness or poverty rather than ‘wicked- ness’.Itmet with considerable opposition, notably from Francis Hopwood, Recorder of Liverpool towards the end of the nineteenth century, who strenuously denounced heavy penalties for petty recidivists. The Lord Chief Justice of the time, Lord Coleridge, appeared to have had greater sympathy with Hopwood’s approach, since he maintained that he would inflict punishment only ‘for the particular offence for which the prisoner is being tried before me’. But even Lord Coleridge admitted that some of his colleagues had ‘different guiding thoughts’. 13 Although Baker’s rationale was deterrence, incapacitation might also be invoked in support of the cumulative approach, especially in view of the contemporary emphasis on security and risk. If so, how might one identify the offenders against whom the principle should be applied? Or is it contended that society is justified in protecting itself against all persistent offenders? Baker had argued that cumulative sentencing of habitual misdemeanants would reduce the incidence of petty offences by some 60,000 a year. 14 ThereareHomeOfficestatistics showing that offenders with five or more previous convictions are 87 per cent likely to be convicted of another 12 See Radzinowicz and Hood (1986), pp. 237–8 and references. 13 Radzinowicz and Hood (1979), pp. 1311–12. 14 Radzinowiz and Hood (1980), p. 1330. 186 Persistence, prevention and prediction offence within six years. 15 However, most of these offences are towards the lower end of the scale of criminality: the high rates of recidivism are for lesser crimes, and the cumulative principle therefore tends to heap punishment on minor and relatively non-threatening offenders. The second and related question is whether, even if there was evidence that cumulative sentencing would ‘work’, it would satisfy the requirements of fairness. Would it be acceptable if the sentencing system prescribed penalties of ascending severity for recidivists, especially if their offences were minor? Would it be any more acceptable if the extra detention was under non-punitive conditions, perhaps similar to quarantine? These fairness issues are takenup in part 7 of this chapter, where proposals for the selective incapacitation of certain types of offender are reviewed. The more common rationale for cumulative sentencing is individual prevention. This was Baker’s main argument: cumulative penalties would deter the offender or, if they did not, he would in effect ‘with his eyes open deliberately sentence himself’. 16 Several questions are raised by this claim. Are all, or even most, persistent offenders the rationally motivated wicked offenders that it assumes? The historical evidence of measures against persistent offenders, reviewed briefly in part 1 of this chapter, suggests that many of them are not. 17 Among them are people who are socially disadvantaged, others who are in personal turmoil, and others who are mentally disturbed. Even if such offenders are regarded as a threat to the public, the cause of their offending indicates that more constructive measures should be taken, and the concept of fairness underlying the proportionality principle should place a limit to the power that may be taken over them. For dangerous offenders it may be argued that people who offend repeatedly forfeitany righttoberegarded as full rights- bearing members of society, or that any rights which such people have ought to be set against the rights of their potential victims, so that the rights of a person who has been shown to reoffend repeatedly mayjustifiably be overridden in order to preserve the rights of others. These and other arguments are considered in part 8 of this chapter. But for the socially disadvantaged or mentally disturbed, this is not an appropriate standpoint. Would the cumulative strategy be effective in preventing crime? This depends not only on such factors as knowledge of the penalties among offenders and the absence of countervailing considerations (e.g. low detection rate, absence of proper social provision for people in need), but also on the effectiveness of the penalty. English law has long had one form of cumulative sentencing – the penalty points system for road traffic offenders. When a court sentences an offender for certain traffic offences, it may (or must) impose a number of penalty points, and when an offender accumulates 12 points an immediate disqualification from driving follows. The justifications for having this system for motoring offences and not for other 15 Philpotts and Lancucki (1979), p. 16; see also Lloyd, Mair and Hough (1994). 16 Radzinowicz and Hood (1986), p. 238. 17 Radzinowicz and Hood (1986), chs. 8–12, on these debates in the nineteenth century. 6.2 Three approaches to punishing persistence 187 crimes have yet to be debated widely; but when it comes to a preventive system based on sentences of imprisonment, the objection was pointed out as long ago as 1932 by the Dove-Wilson Committee: the inference is that present methods not only fail to check the criminal propensities of such people, but may actually cause progressive deterioration by habituating offenders to prison conditions which weaken rather than strengthen their characters. 18 Thus the repeated use of prison sentences may be counter-productive, making these offenders less able to live law-abiding lives and more likely to reoffend on release. If the cumulative principle is based on individual deterrence, and if the point of deterrence is to protect the public, heavy reliance on imprisonment for this purpose may not only go against the principle of restraint (see Chapter 3.4.2)but also be to a significant extent self-defeating. On the basis of a review of the available evidence some ten years ago on the typical characteristics of criminal careers, David Farrington argued that ‘since a high proportion of offenders desist after the first or second offence, significant criminal justice interventions might be delayed until the third offence. Diversionary measures might be appropriate after the first or second offence.’ 19 This drives a further wedge between cumulative sentencing and prevention. If prevention is to be the chief concern, it does not follow that cumulative sentencing is the most effective way of achieving this, particularly after two or three convictions, and particularly if incarceration is involved. Like many penal policies, it may have a superficial attractiveness to politicians and the media because it appears ‘tough’, but it relies on crude assumptions about the causes of offending and on a failure to grasp the criminogenic effects of the penal system itself. 20 6.2.3 Progressive loss of mitigation This approachtothe sentencing of persistent offenders differs from flat-rate sentenc- ing in making some allowance for previous record, and differs from the cumulative principle in placing limits on the influence of previous record and in deferring to an overall concept of proportionality. The principle of progressive loss of mitigation really consists of two parts: one is that a first offender should receive a reduction of sentence, and the other is that with second and subsequent offences an offender should progressively lose that mitigation. How soon all the mitigation is lost is a question for discussion later, but clearly the principle assumes a limit beyond which the sentence cannot go, no matter how many previous convictions the offender has. The gravity of the current offence(s) is taken to set a ‘ceiling’ for the sentence: a bad previous record should mean that the offender loses this source of mitigation, but the record should not be treated as an aggravating factor. As Thomas put it, a bad 18 Dove-Wilson (1932), para. 3. 19 Farrington (1997), pp. 564–5. 20 On the indices of risk of offending and how to respond to them, see Farrington (2002). 188 Persistence, prevention and prediction record ‘will not justify the imposition of a term of imprisonment in excess of the permissible ceiling for the facts of the immediate offence’. 21 What is the theory underlying progressive loss of mitigation? It is an approach characteristically adopted by desert theorists, who view proportionality to the seri- ousness of the offence as the chief determinant of sentence. We saw earlier that some desert theorists adopt flat-rate sentencing for recidivists. Why would a desert theo- rist wish to dilute an offence-based system of sentencing (harm plus culpability) by incorporating an element relating to the offender’s past history? The argument, restated and refined by Andrew von Hirsch, 22 is based on the idea of a lapse. Ordi- nary people do have occasional aberrations. Human weakness is not so unusual. The sentencing system should recognize not only this, but also the capacity of people to respond to censure, and to ensure that their future conduct conforms to the law. This is embodied in the idea of giving someone a ‘second chance’. 23 So the justification for the discount for first offenders rests partly on recognition of human fallibility, and partly on respect for people’s ability to respond to the censure expressed in the sentence. The justification for the gradual losing of that mitigation on second and subsequent convictions is that the ‘second chance’ has been given and not taken: the offender has forfeited the tolerance, and its associated sentence discount, because the subsequent criminal choices show insufficient response to the public censure. In principle, therefore, the second offence deserves greater censure than the first (unless there is good reason to indicate otherwise), and the third offence may be censured fully. But the seriousness of the offence must remain the primary determinant of sentence, and therefore sentences imposed on repeat offenders should not cumulate so as to lead to custodial terms greater than the current offence could justify. One possible counter-argument is that the notion of lapse appears to take no account of the possibility that a first offender might have planned an offence metic- ulously and might have been fully aware of the gravity of the wrongdoing. However, the ‘second chance’ theory turns on the ability to respond to censure and pun- ishment, not on mere awareness of wrongdoing. A second counter-argument is that the justifications offered seem to assume that all offending is based on ration- al choice, and to ignore the findings of criminological research. Thus rational choice (of a kind) may be evinced by those who adopt a particular lifestyle, such as career burglars. 24 Butsome recidivism is largely a concomitant of going to particular places and associating with particular people, as with people who frequently become involved in violence associated with drinking in public houses. 25 Some may stem 21 Thomas (1979), p. 41. 22 Von Hirsch and Ashworth (1998), ch. 4.7; von Hirsch and Ashworth (2005). 23 Cf. Bagaric (2001), ch. 10.3.1, for the counter-argument that the moral notion of lapse is inap- propriate for matters so serious as criminal convictions. However, it is questionable whether every criminal offence is sufficiently serious to remove the moral force of the argument from lapse. Bagaric also argues that the idea of a discount for first offenders is a subterfuge, and that in reality we are discussing the claim of previous convictions to operate as an aggravating factor. For contrary arguments, see ch. 5.1 above. 24 E.g. Maguire (1982), Bennett and Wright (1984). 25 Walmsley (1986), pp. 17–18. 6.2 Three approaches to punishing persistence 189 from contacts made within penal institutions, where information is exchanged and alliances formed. 26 A large amount of recidivism may be associated with drug use. 27 And, more generally, some is part of a cycle of social deprivation and/or personal turmoil, which may or may not be deepened by the experience of imprisonment, as with the so-called petty persistent offenders. 28 Studies of desistance from crime, which focus on the circumstances in which offenders typically give up offending, have long indicated the relevance of stable relationships, a child, a job and other prosaic factors in a person’s life. 29 In this context it is important to note two of the recommendations of the Council of Europe on sentencing: D1 Previous convictions should not, at any stage in the criminal justice system, be used mechanically as a factor working against the defendant. D2 Although it may be justifiable to take account of the offender’s previous criminal record within the declared rationales for sentencing, the sentence should be kept in proportion to the seriousness of the current offence(s). 30 Proposition D1 emphasizes the importance of considering the reasons for reoffend- ing in each case. This does not present problems for desert theorists, for, as we saw in Chapter 4.5, they can accept grounds for mitigation based on diminished capac- ity, social deprivation and so forth. Proposition D2 recognizes that, even in those countries where prevention is the primary rationale of sentencing, there should be a proportionality constraint in the sentencing of persistent offenders. The great merit of the ‘second chance’ idea is that a clear principle of fairness is accorded a cen- tral place. 31 Thus, progressive loss of mitigation assumes that a second and a third offence deserve greater censure, but it accords with the Council of Europe in leav- ing room for other responses if other explanations for reoffending seem persuasive and in insisting on a firm proportionality constraint. This last point distinguishes it clearly from the cumulative approach, which may result in long sentences for persistent but non-serious offenders. At common law the Court of Appeal frequently restated the theory of progres- sive loss of mitigation and the proportionality constraint on sentencing persistent offenders. The leading case was probably Queen (1981), 32 where the offender had countersigned and attempted to cash a cheque for £50 belonging to someone else. He was sentenced to 18 months’ imprisonment. The Court of Appeal, accepting that he had probably been sentenced on his ‘appalling’ record of thefts and deceptions, reduced the sentence to allow his immediate release. Kenneth Jones J held that it is wrong in principle to sentence an offender on his record: 26 See ch. 9.2 below. 27 ‘Of social variables, drug misuse is most strongly linked with the likelihood of reconviction’: Halliday (2001), Appendix 3, para. 11. 28 See this chapter, part 6.5.29E.g. West (1963), Burnett (1994), Maruna (2001). 30 Council of Europe (1993). 31 Cf. Bagaric (2001), ch. 10, for the contrary argument that only by adopting flat-rate sentencing can bias against the poor and disadvantaged be reduced significantly. 32 (1981) 3 Cr App R (S) 245. 190 Persistence, prevention and prediction The proper way to look at the matter is to decide on a sentence which is appropriate for the offence for which the prisoner is before the court. Then in deciding whether that sentence should be imposed or whether the court can properly extend some leniency to the offender, the court must have regard to those matters which tell in his favour; and equally to those matters which tell against him, in particular his record of previous convictions. 33 The gravity of the offence should set the ceiling, and even an appalling prior record should not take the sentence above it. However, while the rhetoric of the courts embraced the principle, the reality of sentencing recidivists was often different. Moreover, the courts often seemed unaware of the difference, and managed to say one thing and do another in the same case. In Bailey (1988) 34 the offender stood convicted of two offences – one was theft of several ladies’ nightdresses, which he had seized from a shop and taken to his solicitor’s office nearby; the other was burglary of a hospital, in the form of taking four packets of frozen cod fillets from a hospital freezer. The trial judge imposed two years’ imprisonment for the theft, and 18 months consecutive for the burglary, totalling three-and-a-half years. The offender’s record was described by the Court of Appeal as ‘truly appalling’: it stretched back over 25 years, though most were ‘comparatively petty thefts’. The trial judge evidently imposed the sentence in order to incapacitate Bailey for a lengthy time (a version of the cumulative principle), but the Court of Appeal held that this was wrong in principle. Stocker LJ went on: It is of course manifest that a convicted criminal’s past record forms part of the matrix upon which he falls to be sentenced. Clearly no court would be likely to impose a sen- tence of imprisonment for a first offender of the same length that might be appropriate for a person with a substantial criminal record. To that extent the past record is a rele- vant factor to be taken into account. On the other hand, as has often been said by this court . . . the sentence imposed must be related to the gravity of the offences in relation to whichitisimposed .Whilst fully understanding the motive which impelled the learned judge to impose a total sentence of three and a half years, we feel bound to say that those sentences bore so little relationship to the gravity of the offences that even having regard to the appalling background of this appellant, they cannot possibly be justified. 35 The court went on to reduce the sentences to 15 months for the theft, and three months consecutive for the burglary which yielded the frozen cod fillets. The statement of principle in this case is fairly clear. Although it is often shortened to ‘it is wrong to sentence on record’, the court shows appreciation of the relevance of the prior record, within limits, to the sentence. But what are those limits? They were supposed to be set by reference to the gravity of the offence(s), and to constitute the ceiling beyond which the sentence should not go. But the scarcity of clear guidelines for sentencing meant that ceilings were often somewhat plastic. By what benchmark is 15 months’ imprisonment a proper ceiling for a rather feeble theft of nightdresses, 33 Ibid., at p. 255. 34 (1988) 10 Cr App R (S) 231. 35 Ibid., at p. 233. 6.3 Previous convictions and the Criminal Justice Act 2003 191 which resulted in the recovery of the stolen property fairly soon after the event? The Court of Appeal’s decision in Bailey shows that the rhetoric of the courts has often been different from the reality of their sentencing practice, and that the principle of progressive loss of mitigation cannot operate without reasonably firm sentence ranges. The principle of progressive mitigation was not applied at common law to all crimes, even in theory. A different approach, more akin to flat-rate sentencing, applied to grave crimes. In his pioneering judgment in Turner (1975), 36 on sentenc- ing levels for armed robbery and for grave crimes in general, Lawton LJ stated that ‘the fact that a man has not much of a criminal record, if any at all, is not a powerful factor to be taken into consideration when the court is dealing with cases of this gravity’. Similarly, the guideline judgment on rape states that ‘the defendant’s good character, although it should not be ignored, does not justify a substantial reduc- tion of what would otherwise be the appropriate sentence’. 37 If this restriction is to be explained, it must be along the lines that little concession to human weakness should be made where there is egregious wrongdoing. The usual ‘concession to human frailty’ implies that the offence can be seen as an unfortunate lapse, whereas there is less room for compassion for those who succumb to the temptation to com- mit a grave crime. Presumably this approach implies a kind of sliding scale, with the general ‘concession to human frailty’ approach to first offenders gradually giving way to a harder line. Rape has a starting point of at least five years’ imprisonment, and so perhaps it is at that level that the concession tapers off. 6.3 Previous convictions and the Criminal Justice Act 2003 Section 143(2) of the 2003 Act introduces a new provision on the sentencing of repeat offenders. As such, it takes its place in a panoply of measures introduced by the government to tackle persistent offending. The discussion here begins by analysing official policy in respect of persistent offenders; it then examines the new legislative provision in some detail; and finally it considers what impact the new law is likely to have on sentencing practice, on the prisons, and on public protection. 6.3.1 Policy on persistent offenders 38 Sentencing policy for persistent offenders should be seen in the broader context of the criminal justice system. In recent years the government has required local Crim- inal Justice Boards to develop schemes for targeting persistent offenders in terms of investigation and detection, aiming at ‘prolific offenders who are responsible for a disproportionate amount of crime’. 39 The Persistent Offender Scheme defined a ‘core persistent offender’ as someone aged 18 or over who has been convicted of six 36 (1975) 61 Cr App R 67 at p. 91, discussed in ch. 4.4.9 above. 37 Millberry [2003] 2 Cr App R (S) 142 at pp. 152–3, adopting SAP, Advice to the Court of Appeal: Rape (2002), para. 46. 38 For detailed discussion see Wasik (1987), Roberts (1997), and von Hirsch and Roberts (2004). 39 Home Office (2002), p. 1. [...]... requires confident predictions some years ahead This is just where predictions are most fallible Third, this expanded use of life imprisonment (and imprisonment for public protection) makes discretionary release the crucial decision, and once again it turns on assessments of risk Dirk van Zyl Smit has argued convincingly against the expanding use of life imprisonment,166 and in England and Wales the new... Souter J 209 210 Persistence, prevention and prediction 6.8 ‘Dangerous offenders’ and the 2003 Act Chapter 5 of Part 12 of the Criminal Justice Act 2003 comprises ss 224–236 and is headed ‘Dangerous Offenders’ It introduces an entirely new regime for the sentencing of offenders classified as dangerous, and replaces the automatic life sentence,137 longer than proportionate sentences for sexual and violent... now Bottoms, Shapland et al (2004) 195 196 Persistence, prevention and prediction (a) the nature of the offence to which the conviction relates and its relevance to the current offence, and (b) the time that has elapsed since the conviction The drafting of this provision indicates that a court is bound to treat each previous conviction as a factor that aggravates the current offence, and must do so each... criminal proceedings, the order should be shorter, and the penalty for breach should be less draconian 205 206 Persistence, prevention and prediction without support for the (often young) defendant, breach of any condition constitutes a criminal offence and a custodial sentence often follows Insofar as ASBOs are used for minor offences such as begging and soliciting for prostitution, they open up the... Marklew and Lambert [1999] 1 Cr App R (S) 6; Attoney-General’s Reference No 3 of 2004 (Akuffo) [2005] 1 Cr App R (S) 230 at p 240 144 Halliday (2001), paras 4.25–4.35 211 212 Persistence, prevention and prediction custody until their risks are considered manageable in the community For this reason we propose to develop an indeterminate sentence for sexual and violent offenders who have been assessed and. .. CJA 2003, ss 225(1)(b), 226(1)(b), 227(1)(b) and 228(1)(b)(i), applying to all three forms of sentence and to offenders aged 18 and under 18 152 Criminal Justice Act s 31(3), discussed in the 3rd edn, pp 185–6 153 This term includes all specified offences and their Scots and Northern Irish equivalents: see Schedules 15, 16 and 17 6.8 ‘Dangerous offenders’ and the 2003 Act current offence is sexual)... groups and high hedges, but which does not touch the substance of ASBOs 116 See e.g Halliday (2001), Appendix 3 117 See part 6.1 of this chapter 118 Greenwood (1982) 119 Blumstein et al (1986); see also in von Hirsch and Ashworth (1998) essays 3.6 (Wilson), 3.7 (von Hirsch) and 3.8 (Tonry) 120 On which see Burnett and Maruna (2004) and, generally, Maruna and Immarigeon (2004) 6.7 Minimum sentences and. .. recidivist premium was justified by reference to deterrence or 47 Halliday (2001), para 2.7 48 See text at n 43 above 49 See von Hirsch and Roberts (2004), p 649 193 194 Persistence, prevention and prediction to incapacitation His primary rationales appear to be denunciation and a version of proportionality that treats an offender as deserving more for each subsequent offence, both of which are connected... released on licence and therefore subject to recall for the remainder of the extension 148 [2002] 1 Cr App R (S) 565, following SAP, Advice to the Court of Appeal on Extended Sentences (2001) 149 Nelson, at p 571 150 CJA 2003, s 247(3) 213 214 Persistence, prevention and prediction period It is evident that the key element in this sentence is the trigger condition of dangerousness, and to that we now... date of commission of any subsequent offence the last conviction and all convictions prior to that must be disregarded for the purposes of sentencing’ 68 Von Hirsch and Jareborg (1989): see ch 29.4, ‘the court shall to a reasonable extent take the offender’s previous criminality into account’ 197 198 Persistence, prevention and prediction imprisonment We have seen that Halliday insisted on a proportionality . Radzinowicz and Hood (1986), pp. 237–8 and references. 13 Radzinowicz and Hood (1979), pp. 1311–12. 14 Radzinowiz and Hood (1980), p. 1330. 186 Persistence, prevention. Wasik (1987), Roberts (1997), and von Hirsch and Roberts (2004). 39 Home Office (2002), p. 1. 192 Persistence, prevention and prediction or more recordable