Special sentencing powers

CHAPTER 12 Special sentencing powers This chapter deals with three sets of sentencing powers for particular groups of offender. It begins with the sentencing of young offenders under the age of 18, deals briefly with young adult offenders aged from 18 to 21, and then concludes with the various powers for dealing with mentally disordered offenders. In respect of each group, we will consider the justifications for separate sentencing powers, and the extent to which the rationale for special powers carries through into sentencing practice. 12.1 Young offenders For almost the whole of the last century there were different sentencing procedures for younger offenders. Those aged under 17 (after the Criminal Justice Act 1991, under 18) weredealtwith in differentcourts,formerly called juvenile courts and then renamed ‘youth courts’. There is a considerable literature about the development of sentencing policy in respect of young offenders, 1 whereas the discussion here is necessarily briefer. 12.1.1 A short history of juvenile justice Ever since 1933, the law has laid down that, in dealing with a juvenile offender, a court ‘shall have regard to the welfare of the child or young person’. 2 This welfare ideology reached its apotheosis in the Children and Young Persons Act 1969, which sought to ‘decriminalize’ the juvenile court by regarding the commission of an offence as merely one way in which the court’s powers to intervene for the welfare of the child could be activated. The legislation contemplated that children under 14 would be dealt with outside the criminal courts, and those aged 14–16 would only rarely be taken to court. 3 The 1969 Act failed, however, to resolve the long-standing tension between the welfare ideology and the tougher, punitive approach. In 1970 1The leading legal text is Ball, McCormac and Stone (2001). For surveys see Newburn (2002), Ball (2004) and Bottoms and Dignan (2004). 2Children and Young Persons Act 1933, s. 44(1). 3 Bottoms (1974). 359 360 Special sentencing powers there was a change of government, and some sections of the 1969 Act were never implemented. Much of its welfare ideology remained largely at the level of rhetoric: its foundations had lain in the belief that juvenile courts should work through and with the family, and should be seen chiefly as welfare-providing agencies. But some magistrates were unhappy with the greater power and discretion it bestowed upon social workers, and campaigned vigorously against the changes. The 1970s saw an expansion in the cautioning rather than prosecution of juveniles, but it also saw an unprecedented increase in the imposition of custodial sentences on young offenders. The struggle between welfare and punishment, between local authority social work departments and the magistracy, was joined in 1980 by the government, which issued a White Paper proclaiming a tougher approach. Tougher regimes were introducedintosome detention centres,onan ‘experimental basis’, and the Criminal Justice Act 1982 restored to the magistracy some of the powers taken away by the 1969 Act. Perhaps the most significant provision in the 1982 Act was the introduction of restrictions on custodial sentences for young offenders, introduced by way of backbench amendment rather than government policy. This, together with the expansion of cautioning for young offenders, meant that the 1980s turned out to be adecade of decreasing severity in the approach to young offenders. 4 The cautioning rate rose steeply, prompted by a Home Office circular of 1985. The number of recorded juvenile offenders began to fall significantly, and not merely because there were fewer young people in the population. Thus, between 1979 and 1989 the number of juveniles in the population fell by 25 per cent, whereas the number of recorded juvenile offenders declined by 40 per cent. A government-funded initiative to expand schemes of ‘intermediate treatment’ gathered momentum, and seems to have been reasonably successful in dealing with young offenders who might formerly have been sent into custody. And the number of juveniles sentenced to custody, which had risen steeply in the 1970s, fell spectacularly in the 1980s, from a peak of 7,900 in 1981 to merely 1,600 in 1991. These trends suggested a considerable momentum towards diversion from the courts and diversion from custody, but in the early 1990s the tide began to turn. The Criminal Justice Act 1991 replaced the juvenile court with the youth court, and expanded its jurisdiction to cover all defendants aged under 18. New forms of community sentence were made available for young offenders, and, in line with those for adults, they were somewhat tougher. But the real changes of direction came around 1993 and 1994. The then Home Secretary announced that the high use of cautioning should be restrained, especially in respect of fairly serious offences and repeat offenders. 5 This seemed to go against the United Nations Convention on the Rights of the Child, but that fact was suppressed amid the growing media ferment about ‘law and order’, particularly in respect of young offenders. The mood continued after the election of 1997. The new government proposed wide-ranging 4 See further Harris and Webb (1987). 5 Home Office circular 18/1994. 12.1 Young offenders 361 and significant reforms of the youth justice system. In the preface to the White Paper No More Excuses, the then Home Secretary, Jack Straw, explained the government’s approach in these terms: Fortoo long we have assumed that young offenders will grow out of their offending if left to themselves. The research evidence shows this does not happen. An excuse culture has developed within the youth justice system. It excuses itself for its inefficiency, and toooften excuses the young offenders before it, implying that they cannot help their behaviour because of their social circumstances. Rarely are they confronted with their behaviour and helped to take more personal responsibility for their actions .This White Paper seeks to draw a line under the past and sets out a new approach to tackling youth crime. 6 Although parts of this are contestable – what ‘the research evidence’ shows about policies of minimum formal intervention, how often the courts have ‘excused’ young offenders – its drift is clear, and the change of language from government pronouncementsinearlierdecadesisclear.TheWhite Paper was followed bytwosets of statutory changes, in the Crime and Disorder Act 1998 and the Youth Justice and Criminal Evidence Act 1999, some of the powers (but not others) being consolidated in the PCCS Act 2000, and their broad structure must now be analysed. 12.1.2 The structure of the youth justice system The principal agency is the Youth Justice Board, created by s. 41 of the 1998 Act, with the tasks of monitoring the operation of the youth justice system, advising the Home Secretary on how the aims of the system might be pursued most effectively, for example promoting good practice and commissioning research. In practice the Board has achieved some success in steering youth justice policy in respect of matters such as reducing the use of custody, expanding forms of community sentence and creating initiatives in respect of (for example) ethnic minority young people and those placed on anti-social behaviour orders. 7 Beneath the Board, each local authority must establish a youth offending team (s. 39 of the 1998 Act). These teams (or YOTs, as they are known) draw from at least five local agencies: probation, social work, police, health and education. Their main tasks are to co- ordinate youth justice services, to carry out functions assigned to them under local youth justice plans and to arrange youth offender panels (YOPs) for individual offenders referred to them under the 1999 Act (see below). The third and fourth agencies to be mentioned are the police, who retain the decision to prosecute (under the usual arrangements with the Crown Prosecution Service), and the youth courts themselves. Turning to the aims of the new youth justice system, the official rationale is to be found in s. 37 of the 1998 Act: 6Home Office (1997), Preface. 7For its annual reports, see www.youth-justice-board.gov.uk. 362 Special sentencing powers (1) It shall be the principal aim of the youth justice system to prevent offending by children and young persons. (2) In addition to any other duty to which they are subject, it shall be the duty of all persons and bodies carrying out functions in relation to the youth justice system to have regard to that aim. The system relies quite heavily on the idea of expert diagnosis (bya youthoffender panel) of a young offender’s predicament, for which an assessment tool known as Asset has been developed. 8 The assessment should lead the YOP to propose a con- tract, making certain requirements of the offender, of which ‘the aim (or principal aim) is the prevention of reoffending by the offender’. 9 There is a potential problem here with the multiplicity of aims: although the five new ‘purposes of sentenc- ing’ set out by the Criminal Justice Act 2003 do not apply in respect of young offenders under 18, 10 the youth justice legislation alludes to two aims of punish- ment, prevention and restorative justice. These potential conflicts are not merely academic or theoretical, nor do they suggest that all elements of the new scheme are open to attack. Many will agree with the emphasis on bringing offenders (of all ages) to recognize what they have done by ‘confronting’ them with their crime and its consequences, even if they do not agree with the implication in some gov- ernment statements that all young offenders must take (full?) responsibility for their crimes. But the difficulty is that the scheme also draws elements of repa- ration and even restorative justice into the response to young offenders, as we shall see below, and there are questions about their role in an essentially punitive framework. Before considering the youth court stage, however, it is important to emphasize the place of diversion in youth justice. Sections 65 and 66 of the Crime and Disorder Act 1998 created a system of reprimands and warnings. Section 65(1) is addressed to ‘a constable [who] has evidence that a child or young person has committed an offence’, and therefore replaces all the informal warnings and more formal cautions givenbythe police to persons under 18. However, the system is strongly prescriptive. No young offender should receivemore than one reprimand and one warning; and, if the offence is too serious for a mere reprimand, the police must proceed straight to a warning. In cases where a warning is given, the constable must refer the offender to a YOT, and the YOT must assess the offender and, ‘unless they think it inappropriate to do so, shall arrange for him to participate in a rehabilitation programme’. 11 Although the Youth Justice Board set a target of 80 per cent of final warnings to have an intervention programme by the end of 2004, the Audit Commission has warned against imposing too many requirements at an early stage, so as to avoid a rapid escalation towards custody. 12 8 See Baker (2004). 9 S. 8(1) of the 1999 Act. 10 Criminal Justice Act 2003, s. 142(2)(a). 11 S. 66(2)(b) of the 1998 Act. See more fully Ball, McCormac and Stone (2001), ch. 4. 12 See Mair (2004), p. 153, for further argument. 12.1 Young offenders 363 Table 14. Cautioning rate for young offenders, given as a percentage of offenders found guilty or cautioned Boys Girls 10–11 12–14 15–17 10–11 12–14 15–17 1992 96 86 59 99 96 81 1997 93 74 49 98 89 68 2002 83 63 41 94 84 62 Source: Criminal Statistics 2002,Table 2.3. Although the rate of diversion (formerly by cautions, now by reprimands and warnings) remains high for young offenders, it has continued to decline in the last few years, as Table 14 shows. While the Youth Justice Board writes of reprimands and warnings as ‘light-touch, minimal interventions’, 13 critics have pointed out that the implications of diversion for young offenders are more onerous than for older offenders, who may receive a simple caution. 14 The introduction of conditional cautions will alter the balance somewhat, but not entirely. There is some evidence that reconviction rates are some 7 to 10 per cent lower than the predicted rate, but those estimates require confirmation. 15 There is evidence to suggest that there may be some unfair treatment at the diversion stage in respect of racial origin. Feilzer and Hood found that ‘the odds of a case involving a mixed-parentage youth being prosecuted was 2.7 times that of a white youth with similar case characteristics’, whereas the odds for a black youth were only slightly higher than for a white youth. 16 If ayoung defendant is taken to court, the youth court is required (subject to an exception mentioned below)to make a referral order wherevera young offender who has not previously been convicted by a court pleads guilty to an offence. 17 The order may be for a period, to be specified, between 3 and 12 months. The referral is to the local YOT, which is then bound to establish a youth offender panel for the offender, with a view to drawing up a programme of behaviour to which the offender is invited to agree. This procedure must involve the offender’s parent or guardian, but may not involve a legal representative. The programme may involve the payment of financial compensation to the victim, attendance at mediation sessions with the victim, the performance of unpaid work in the community, participation in certain activities and so forth. If the offender agrees, this becomes a ‘youth offender contract’, with provisions for a return to court in the event of breach. If the offender does not agree, the case is returned to the youth court and it is supposed to proceed to deal with the offender as normal. This whole procedure is framed in contractual terms, 13 Youth Justice Board (2004), p. 3. 14 Ball (2004), p. 37. 15 Audit Commission (2004); but cf. the questions raised by Bottoms (2004), pp. 72–3. 16 Feilzer and Hood (2003), p. ix. 17 S. 16 of the PCCS Act 2000. 364 Special sentencing powers but it is suffused with coercion, and that which is being coerced derives from large elements of expert diagnosis and discretion. 18 However, the study of referral orders by Newburn, Crawford and others showed that the new system was welcomed by all groups of participants: Within a relatively short period of time the panels have established themselves as constructive, deliberative and participatory forums in which to address young people’s offending behaviour. The informal setting of youth offender panels would appear to allow young people, their parents/carers, victims (where they attend), community panel members and YOT advisers opportunities to discuss the nature and consequences of a young person’s offending, as well as how to respond to this in ways which seek to repair the harm done and to address the causes of the young person’s offending behaviour. This view is echoed by all participants in panels . 19 The same study reported that apology and reparation were recurrent features of the contracts resulting from the panel meetings. However, the involvement of victims was lower than expected, with only 13 per cent of panel meetings attended by avictim and some 28 per cent overall in which a victim had some input (e.g. by written statement). 20 One substantial criticism of the referral order system was that its mandatory nature meant that many relatively minor cases were receiving undue attention. National figures for 2002, the year in which referral orders were made available to all courts, show that of some 19,000 referral orders made, the largest group was for summary non-motoring offences (5,800), followed by theft and handling (4,200), followed by summary motoring offences (3,000). 21 The law was amended by Order in 2003 by giving the youth court a discretion not to make areferral order in minor cases. Apart from referral orders, the youth court’s powers remain broadly unchanged, save for the introduction of some new powers and requirements by the Criminal Justice Act 2003. 12.1.3 The youth court and non-custodial sentences The framework of sentencing is somewhat similar to that for adults, in the sense that the power to make an absolute discharge, conditional discharge, bind-over, compensation order and fine remain available in most cases. 22 Ifafinancial penalty is imposed, the parents may be ordered to pay if the offender is aged 16 or 17, and they must be ordered to pay if the offender is aged under 16. The parents have a righttobeheard before being ordered to pay, and it is their means that should be taken into account. Although fining is not a common response to juvenile offend- ing, reconviction figures suggest that it is relatively effective, as is the conditional discharge. 23 18 See Ball (2000). 19 Newburn, Crawford et al. (2002), p. 62. 20 Newburn, Crawford et al. (2002), ch. 8. 21 Criminal Statistics 2002,Table 4F. 22 For further discussion of these measures see ch. 10 above. 23 Mair (2004), p. 151, with qualifications. 12.1 Young offenders 365 Indeed, when dealing with offenders under 16, the youth court’s powers and duties extend to the parents of the offender. Thus, a youth court is required to order parents to attend court if their child is being prosecuted, unless it would be unreasonable to require this. There is also a presumption that a court should bind over the parents of a child aged under 16 to exercise proper care and control over the child: if it declines to do so, it should state its reasons. There is a further power to bind over the parents of a child who is placed on a community sentence, requiring them to ensure that the child completes it. The general theme of encouraging greater parental responsibility is undoubtedly right, insofar as family units are critical to much social behaviour. But a more constructive approach than court orders, threats and coercionwould be toprovide greater support for parents through local authority social workers and parental support groups. Thus the Children Act 1989 provides for local authorities to provide support and assistance to parents based on assessment of the needs of the child, without resort to care proceedings and without anyattribution of blame. However, parents may have other duties imposed on them, such as that of attending all meetings of a young offender panel relating to their child, where areferral order has been made. Indeed, ss. 8–10 of the Crime and Disorder Act 1998 also empower a court to make a parenting order, requiring a parent to attend guidance sessions and so on as specified. The questions of the appropriate degree of coercion on parents of offending children remains controversial. 24 Wherea youthcourt is contemplating making a community order,it must comply with all the statutory requirements applicable to such orders (see Chapter 10.6 above). However, the 2003 Act is not yet in force for offenders aged 16 and 17, so the old community sentences apply. Where a youth court is dealing with an offender aged 10–15, it is empowered to make a youth community order, and that may take one offiveforms: a curfew order, an exclusion order, an attendance centre order, asupervision order, or an action plan order. The appropriate statutory provisions for these five orders are to be found in the Powers of Criminal Courts (Sentencing) Act 2000, and not in the Criminal Justice Act 2003. Nothing more needs to be said here about curfew orders and exclu- sion orders. Attendance centres operate for three hours on a Saturday afternoon, and involve the offenders in physical training and constructive work, among other things. The maximum number of hours that can be ordered is 24 for offenders under 16 (36 for those aged 16 and under 25). Supervision orders involve supervision of the offender by a local authority social worker. They may include additional require- ments, similar to those included in activity requirements, programme requirements 24 See Zedner (1998), pp. 176–81. 366 Special sentencing powers and other requirements for adults. The action plan order involves supervision for three months, during which the offender may be ordered to do one or more of a whole range of things found in other orders (e.g. participate in specified activities, attend an attendance centre, report at certain times and places, make non-financial reparation to the victim or the community). A major objective of the Youth Justice Board has been to tackle persistent young offenders, and one prominent initiative has been the development of the Intensive Supervision and Surveillance Programme (ISSP) aimed at this group. As the name suggests, this programme attempted to combine the supervision of this difficult and often troubled group of offenders with surveillance of them. The Audit Commission commended ISSPs as ‘a more constructive and cheaper option for persistent young offenders than a spell in custody’. 25 An evaluationof the ISSP by an Oxford University team showed that there was some reduction in reoffending in the short term, which may or may not have been attributable to ISSP, but a proper follow-up study is awaited. The research also showed that ISSP was largely successful in ensuring that underlying needs, such as education, were tackled. However, the study showed some variation in the delivery of ISSP, with standards not uniformly high. 26 These findings are sufficient to justify further development of ISSP, but they counsel caution in making claims about its effectiveness. The youth court may also make certain ancillary orders, of which the anti-social behaviourorderis the most prominent. We have seen that ASBOs may be made in civil proceedings or, alternatively, after sentence; we have also noted that around half of all ASBOs are made against persons under 18 – even though the government stated during the parliamentary debates that ASBOs were not intended for the young. Accepting the reality that young people are going to become subject to ASBOs in considerable numbers, the Youth Justice Board has pressed for greater involvement of Youth Offending Teams with these young people. 27 This is now facilitated by s. 292 of the Criminal Justice Act 2003, which inserts into the legislative framework for ASBOs a new power to make an ‘individual support order’, assigning the young person to a ‘responsible officer’ and requiring the young person to comply with directions for a period of up to six months. This promises to furnish some support to young people on ASBOs, although the maximum of six months is well below the minimum period of two years for the ASBO. As we saw inTable 6 in Chapter 1, the proportionate use of community sentences has increased considerably between 1992 and 2002, from 39 to 64 per cent of boys aged 10–17 and from 27 to 71 per cent of girls. Discharges are now little used, and instead the youth court is more frequently imposing a community sentence – sometimes, it may be argued, on offenders whose crimes are not serious enough to warrant this degree of intervention. There appears to be much local variation in youth justice:the study of some 17,000 cases by Feilzer and Hoodfound considerable evidence of ‘justice by geography’ in the disposal of cases by youth courts. Looking 25 Audit Commission (2004). 26 Moore et al. (2004). 27 Youth Justice Board (2004), p. 7. 12.1 Young offenders 367 at ethnic origin in relation to community sentences, they found that Asian youths and mixed-parentage youths were more likely to receive one of the more restrictive community penalties than could be explained by their case characteristics. 28 12.1.4 Custodial sentences In Chapter 9 above we noted the sharp increase in the use of custody in English sentencing. However, the sentencing of young offenders is an exception to this, at least in respect of boys. Thus as Table 6 in Chapter 1 demonstrates, the proportionate use of custody for boys aged 10–17 increased from 10 per cent in 1992 to 14 per cent in 1997 and then fell back to 13 per cent in 2002. For girls, however, the trajectory has been upwards – from 2 per cent in 1992 to 5 per cent in 1997 and to 7 per cent in 2002. These are increases, but not of the same magnitude as for adult offenders. The Yo uth Justice Board has endeavoured to generate a movement of young offenders away from custodial sentences to community sentences, and 2003 saw a downturn in the numbers of sentenced young offenders in custody, from 9,079 in November 2002 to 8,330 in November 2003. 29 The Audit Commission’s report in 2004 advocates areduction of the use of custodial sentences in favour of the more demanding community orders, by means of greater emphasis on and information about ‘the costs and the effectiveness of custody and community alternatives’. 30 The custodial sentence for offenders aged 10–17 is the detention and training order (DTO), the statutory provisions on which are to be found in the Powers of Criminal Courts (Sentencing)Act 2000. Section 100 provides that no such ordermay be made unless the provisions on the custody threshold are satisfied. 31 If the court is satisfied that the case passes the custody threshold, it may only impose a DTO on an offender aged under 15 if it is of the opinion that he is a ‘persistent offender’, which is not defined. 32 Also, a court may only impose a DTO on an offender aged 10 or 11 if of the opinion ‘that only a custodial sentence would be adequate to protect the public from further offending by him’. Section 101 provides that a DTO may only be for one of the specified lengths – 4, 6, 8, 10, 12, 18 or 24 months. Not surprisingly, this restriction has been criticized for playing havoc with courts’ attempts to reflect differences in culpability between offenders, and mitigating factors such as a plea of guilty. Under a DTO the young offender serves half the sentence in a young offender institution and is then released under supervision for the remainder of the sentence. To so me extent, therefore, the order already incorporates some of the elements to be introduced as ‘custody plus’ for older offenders under the Criminal Justice Act 2003. 33 The new measures for adults, including custody plus, suspended sentences and intermittent custody, are not available for offenders under 18. 28 Feilzer and Hood (2004), p. xi. 29 Lewis (2004), pp. 49–50. 30 Audit Commission (2004). 31 See ch. 9.4.1 above. 32 It appears that a young offender with no previous convictions who is convicted of multiple offences on his first court appearance may be classed as a ‘persistent offender’: AS [2001] 1 Cr App R (S) 62. 33 See ch. 9.4.4 above. 368 Special sentencing powers Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 provides for the long-term detention of young offenders for serious offences. The power may only be exercised where the offender is convicted of an offence with a maximum penalty of 14 years, or of a few listed offences. Guidelines on the proper use of the s. 91 power were laid down in Mills (1998). 34 Whereas previously it had been held that the power should only be used in cases of exceptional gravity, this guidance makes it clear that s. 91 simply authorizes the use of that part of the tariff which lies above the range of ordinary sentences of detention. Thus, if a court concludes that a particular case warrants a sentence longer than two years, it may use the s. 91 power so long as the offence falls within the purview of that power. In Mills Lord Bingham CJ emphasized that no young offender should be given a custodial sentence unless absolutely necessary, and then for no longer than is necessary. And, of course, the length of sentence should be calculated in a way that makes allowance for the offender’s youth and for any plea of guilty. Severe sentences are imposed on very young offenders from time to time, such as the three-year sentence of long-term detention imposed on a boy of 11 for causing grievous bodily harm to a younger boy when he was 10. 35 However, the power under s. 91 is now joined by the much more severe power under part 12 of the Criminal Justice Act 2003 dealing with ‘dangerous offenders’. Part 12 of the new Act was discussed in some detail in Chapter 6.9 above, and it thereforesuffices here to repeat that there are three new forms of sentence. Detention for life must be imposed in certain cases, where the offence is one to which s. 91 of the 2000 Act applies (above) and where the court considers that the seriousness of the offence justifies detention for life (s. 226). Detention for public protection must be imposed in a case where the court believes that there is a serious risk to the public from which an extended sentence would not provide adequate protection (s. 226(3)). And an extended sentence must be imposed if a young offender stands convicted of a specified offence and the court believes that there is a significant risk of serious harm otherwise (s. 228). These are very severe sentences for young offenders, and it is to be hoped that the courts will use them restrictively. 12.2 Young adult offenders Offenders aged 18, 19 and 20 are tried and sentencedin adult courts, but there is some difference in the orders available to the court. There is a lengthy tradition of separate custodial institutions for offenders aged under 21 – borstals, detention centres, youth custody centres and now young offender institutions. The reasoning is partly to prevent the ‘contamination’ of young offenders by older and more experienced criminals, and partly to enable more constructive regimes with a greater emphasis on education and on industrial training. The Younger report justified special attention to this group thus: 34 [1998] 1 Cr App R (S) 128. 35 Jamie Craig W. [2003] 1 Cr App R (S) 502. [...]... requirement on courts to consider the effect of a custodial remand on a defendant’s mental health.44 41 Duff (1986) 42 Laing (1999) 43 Burney and Pearson (1995) 44 See Cavadino (1999) 371 372 Special sentencing powers 12.3.2 Special orders for the mentally disordered Absolute or conditional discharges may be appropriate in some cases where the offender is suffering from mental disorder Beyond that, the courts... 2003 Act, preserving the courts’ power to mitigate sentence in the case of mentally disordered offenders 73 Criminal Justice Act 2003, Schedule 32, para 38 377 378 Special sentencing powers 12.3.4 Conclusions The proper approach to the sentencing of mentally disordered offenders remains a matter of controversy There has tended to be a major division of policy between mentally disordered and other offenders:... available only up to the age of 25 So far as custodial sentences are concerned, since 1982 custody for young adults has 36 Advisory Council on the Penal System (1974), para 9 37 Evans (1993) 369 370 Special sentencing powers not been imprisonment but detention in a young offender institution, preserving the segregation that has long been a feature of the system However, s 61 the Criminal Justice and Court... a man who was not suffering from mental disorder at the time of the offence but was at the time of sentence, the Court upheld a sentence of 12 years’ imprisonment for drug importation 373 374 Special sentencing powers to pursue fairly restrictive criteria for admission, and offender-patients are sometimes refused admission on the basis that they are likely to disrupt the regime In the debates on the... (S) 202 58 Street (1998), s 1 59 Home Office Statistical Bulletin 13/2002 60 Howell (1985) 7 Cr App R (S) 360 61 (1993) 14 Cr App R (S) 151 62 Mitchell [1997] 1 Cr App R (S) 90 at p 93 375 376 Special sentencing powers Once admitted under s 41, the offender will be detained until either the Home Secretary or a Mental Health Review Tribunal decides that the criteria for release are satisfied, i.e that... conviction At the sentencing stage there is a long tradition of regarding (some) mentally disordered offenders as either deserving of mitigation, or requiring treatment instead of punishment This approach can be rationalized on the basis that such offenders may not have sound powers of reasoning or control, and may therefore not understand the significance of punishment or may not deserve it Sentencing has... disordered means that they should not be compulsorily detained under ‘criminal’ powers beyond the point at which a non-disordered offender would be released from prison.74 It is therefore important that proportionality of sentence should be reasserted as a constraint on sentencing the mentally disordered, no less than in respect of sentencing generally The controversy over the proper response to mentally... plead.39 The test for the defence of insanity is still restrictive and, despite the flexibility of powers on a verdict of insanity, its use since the 1991 Act remains low.40 Most of those who are mentally disordered tend not to plead insanity, but instead acquiesce in conviction and seek a medical disposal at the sentencing stage This means that sentencers have to deal with far more people in this category... seen how the advent of conditional cautioning under the 2003 Act will affect this age-group, in terms of reducing the number of simple cautions and/or reducing the numbers prosecuted 12.2.2 Sentencing young adults The sentencing framework for young adults is largely that for adults, with a few exceptions It was noted in Chapter 10.6.3 that one form of requirement in a community sentence, the attendance... the case of an offence for which sentence would fall to be imposed under s 51A of the Firearms Act 1968 (mandatory minimum of five years for possessing firearm), or under ss 110 or 111 of the Powers of Criminal Courts (Sentencing) Act 2000 (minimum sentences for third class A drug dealing or third domestic burglary), or under ss 225–228 of the Criminal Justice Act 2003 (new dangerousness provisions), ‘nothing . CHAPTER 12 Special sentencing powers This chapter deals with three sets of sentencing powers for particular groups of offender. It begins with the sentencing. App R (S) 62. 33 See ch. 9.4.4 above. 368 Special sentencing powers Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 provides for the long-term