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What are the objectives of sentencing?

The objectives of sentencing are:


Sentencing can be deferred for 6 months with the offender's consent under the Powers of Criminal Courts Act 1973, section 1.

In addition, under the Criminal Justice and Public Order Act 1994, s. 48, the court shall take into account the stage at which guilt was admitted, and the circumstances under which the plea was given, and if in doing so reduces its sentence shall say so.

The Criminal Justice Act 1991 made the most important changes to sentencing policy in 50 years, making protection of the public, and prevention of crime central to policy, as well as making the punishment fit the crime, by making sentences commensurate with the seriousness of the crime.

What are the sentences?

Confiscation order

When sentencing offenders for drug trafficking offences (Drug Trafficking Offences Act 1989), an amount no more than the higher of the proceeds of the drug dealing and the defendant's saleable property may be seized. This was extended to other serious crime by the Criminal Justice Act 1993.

Under the Proceeds of Crime Act 1995, any of a criminal's assets may seized, not just the proceeds of crime, provided the offence is indictable, or is a summary sex offence.

Forfeiture of the tools of the criminal trade

Anything used to commit or facilitate any offence may be seized (Powers of Criminal Courts Act 1973, section 43A). An example of this a getaway car. This sentence can be preventive of crime, but it usually serves retributive or deterrent functions.

The court can order the property's sale and payment to the victim.

Endorsement of driving licence

A sentence only imposed in driving offences.

Binding over to keep the peace

This is backed by a fine for breach.

Disqualification from driving

This can be imposed (under the Powers of Criminal Courts Act 1973, section 44) if a car was used to commit or facilitate (e.g. as a getaway car) an offence, even if the offender was not the driver. It is a retributive sentence, with little protective effect, and is usually counter-rehabilitative.


Aliens can be repatriated under the Immigration Act 1971.

Absolute discharge

This is a finding of guilt without punishment.

Conditional discharge

An official 'ticking off': essentially a rehabilitative sentence; the implication is that the offender will not get off so easily next time.

The discharge lasts for not longer than 3 years, and if the offender commits another offence during this period, then they can be sentenced for the offence for both offences (i.e. the discharged one as well as the second offence).

Compensation orders

These may be awarded for any damage, loss or injury caused by an offender, young or old. When the offence is an offence under the Theft Act 1968, the offender is liable for damage caused by others as well as his own. They were introduced by the Powers of Criminal Courts Act 1973, and along with fines and imprisonment they are the only current sentence of any antiqutity (cf. wehrgild).

The maximum compensation order imposable by the magistrates court was increased from two to five thousand pounds by the Criminal Justice Act 1991, section 17 (3)(a).

These are designed to stop the victim from having to sue in a civil court, and not strictly speaking a sentence.
Under the Criminal Justice Act 1988, the court must give reasons if it does not award one.

Restitution Orders

If the abjudged goods are damaged, a compensation order can be awarded in addition thereto.


They can be imposed for any offence, except murder and treason; and magistrates courts can impose fines up to £5000 for most offences.

The Crime, Justice and Protecting the Public White Paper announced a desire to make these proportional to the offenders ability to pay, in order to reduce the number of prisoners serving time for non-payment. The Criminal Justice Act 1991 enacted this, with the unit fine system, which multiplied the unit seriousness of the offence by the offender's disposable income. The system did not work, and resulted in absurdly high fines for trivial offences, and the Criminal Justice Act 1993 (section 65(1)) restored judicial discretion by adding that courts have the power to alter fines according to offenders' means.

The levels of the units introduced by the 1991 Act were: Level 1 - £200, Level 2 - £500, Level 3 - £1000, Level 4 £2500, and Level 5 - £5000; on summary conviction.

Parents were also made responsible for their children's fines. The maximum fine imposable on a child is £250 on summary conviction for an either way offence, or £1000 for a young person on summary conviction for an either way offence.

Costs order

Not a sentence.

Hospital orders

Imposable on those with mental illnesses and lasting until the offender has been cured.

Community penalties

Community penalties may be imposed for any offence (except where specified, except for those where the penalty is fixed at life.

The Criminal Justice Act 1991 (s. 6), provides that community penalties may not be imposed unless the offence is so serious that no other sentence would be appropriate, and that the penalty should be commensurate with the seriousness of the offence.

Community penalties were defined as probation orders, community service orders, combination orders, curfews, supervision orders, and attendance centre orders.

Probation order

Probation was introduced by the Criminal Justice Act 1925, and remained largely unchanged until the Criminal Justice Act 1991, which, by section 8, allows probation of offenders as young as 16 (as against the previous minimum age of 17).

The Act also allowed the sentence to be combined with curfews and compensation orders.

In order to impose such a sentence, the court must be sure that the supervision of the offender is desirable in the interests of the offender's rehabilitation. Such requirements may be imposed as is necessary (under the 1973 Act, s. 3, as inserted by the 1991 Act) to protect the public from harm, to prevent the offender committing further offences, and to secure their rehabilitation. Probation periods can last between 6 months and 3 years.

Section 9 of the Act allows courts to impose conditons on probation orders providing they comply with the objectives of probation orders (above).

In some cases, courts are required to obtain pre-sentence reports, e.g. if imposing residence requirements, activity restrictions or drug and alcohol treatment orders (Criminal Justice Act 1991, section 7).

The penalty for breach of probation is up to a £1000 fine or sentencing for the original offence, providing it was tried in the magistrates' court.

Committing offences on probation means that the offender can be sentenced for the original offence, whatever court they were tried in.

If the probationer or probation officer applies and probation is no longer appropriate, a conditonal discharge can be substituted for the remainder of the order's currency.

Supervision order

These involve living in supervised accommodation. They are imposable by section 68 of the Criminal Justice Act 1988 on youths aged up to 17.

They can include reparation requirements by s. 71 of the Crime and Disorder Act 1998.

Community service order

They are only imposable for imprisonable offences.

These may, as a result of the Criminal Justice Act 1991 be combined with fines. The Act also increased the maximum number of hours imposable on a 16 year old from 120 to 240 hoursm in line with the maximum for everyone else. The minimum number of hours for these consentual orders is 40 hours, to be completed within a year, at times not interfering with education and work.

Attendance centre order

This is a youth (aged under 21) sentence. They are exercise camps held on Saturdays.

The Criminal Justice Act 1982 introduced them, and forbad their passing on offenders with previous custodial sentences. Section 67 of the Criminal Justice Act 1991 repealed this, and increased the maximum number of hours for 16 year olds to 36, as for 17 year olds.

Combination order (1991 Act, s. 10)

They are only imposable for imprisonable offences.

These combine probation orders with community service orders, for offenders aged 16 or over. The maximum period of probation is still 3 years, but the minimum is 12 months. The community service lasts between 40 and 100 hours. The offender must be 16 years or older, convicted of an imprisonable offence. The conditions for the imposition of one of these sentences is that it would be desirable in the interests of rehabilitation, protection of the public, or prevention of further offences. They were introduced by section 11 of the Criminal Justice Act 1991.

Curfew order

These can be imposed on offenders aged 16 or older. They can combine several different curfew locations and times, but cannot last for more than 6 months in total. Any individual curfew period cannot last less than 2 hours, and the maximum curfew in one day is 12 hours. They are consensual, and were introduced by section 12 of the Criminal Justice Act 1991. The Act also permits tagging by section 13.


Unless the offence is indictable only, the court is required to commission and use a pre-sentence report in considering whether to impose a custodial sentence, by s 3 of the Criminal Justice Act 1991. In addition to this, the court is required to take into account "all such information about the circumstances of the offence (including any aggravating or mitigating factors) as is available to it"). The court must also obtain a report in considering the length of the sentence, and a medical report (section 4) if dealing with mentally ill offenders.

First offenders may not be imprisoned by the magistrates court unless they failed to apply for legal aid or were refused it on account of their means (soon to be inapplicable) (Powers of Crimianl Courts Act 1973, section 21).

Custodial sentences may only be imposed by courts (under the Criminal Justice Act 1991, s1(2) (repealing the Powers of Criminal Courts Act 1973, s 20)) if:

  1. The offence or offence in combination with the other offences is so serious only a custodial sentence can be justified, or
  2. the offence is violent or sexual and only a custodial sentence would suffice to protect the public from serious harm.

As to the length of sentence, s 2(1) provides that it should be commensurate with the seriousness of the offence or offence in combination with the other offences, but can be lengthened so far as is necessary to protect the public from serious harm where the offence is violent or sexual (s 2(2)), subject, of course, to the statutory maximum for the offence.

Thus the policy of the Act is one of retribution in the first instance, but with a combination of deterrence, rehabilitation, and crime prevention allowing lengthening of sentences in violent or sexual offences. Retribution is clearly the number one priority in section 2, since the sentence cannot be shortened (since the Act only refers to the seriousness of the offence, which seems to be independent of offender characteristics) if the court feels there is no risk of repetition, but it can be lengthened so far as is necessary to provide a deterrent effect. However deterrence is only possible when the offence is violent or sexual, so it is clearly a minor concern in statutory sentencing policy.

It seems that statutory sentencing policy is anachronistic or defeatist, since if official policy recognised imprisonment as effective it would tailor sentences according to individuals' likely responses thereto (i.e. rather than according to the seriousness of the crime), which it does not do, suggesting either that prison is ineffective, or that the official attitude is that offenders have done the crime, ergo they should do the time, a medieval attitude defalcating large quantities of taxpayers' money.

The 1991 Act was amended by the Crime and Disorder Act 1998, which, by s. 58, provides that if a court, imposing a custodial sentence on a sexual or violent offender feels that the licence period "would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation." Under s. 58, the court can pass an 'extended sentence' equal to the normal 'custodial term' plus an 'extension period', for which the offender is on licence and is long enough to secure the aims above. The minimum custodial term of an extended sentence is four years if the offence is a violent one, and the extension period cannot exceed 10 years if the offence is sexual, or 5 years if it is violent. In addition, the whole extended sentence cannot exceed the maximum imposable for the offence. It also provides that s 2(2) of the 1991 Act applies as if the length of the sentence did not include the extension period.

Under s. 29(1) of the Act, offences cannot be regarded as more serious purely on the basis of previous convictions and failure to respond to previous sentences, but 29(2) provides that "where any aggravating factors of the offence are disclosed by the circumstances of other offences committed by the offender, nothing in the Act shall preven the court from taking those factors into account for the purpose of forming an opinion as to the seriousness of the offence."

Minimum sentences

The Crimes (Sentences) Act 1997, makes it clear that in some cases at least, a failure to respond to previous convictions should mean a longer sentence, and it introduced minimum sentences for various repeat offences.

Thus a second serious offence, the second of which was committed by a person aged 18 or over attracts a life sentence (s. 2) unless the court states that there are exceptional circumstances.

A serious offence is defined thus:

  1. Murder or attempts, etc.
  2. Manslaughter
  3. Wounding or GBH with intent
  4. Rape or attempted rape
  5. Sex with a girl aged under 13
  6. Possession of a firearm with intent to injure
  7. Use of a firearm to resist arrest
  8. Carrying a firearm with criminal intent
  9. Robbery with possession of a real or imitation firearm

There is also now a minimum 7-year sentence (s. 3) for a 3rd Class A drugs offence, unless circumstances make it 'unjust'.

Finally, there is a minimum 3-year sentence (s. 4) for a 3rd domestic burglary, unless circumstances make it 'unjust'

Fully suspended imprisonment

(The Criminal Justice Act 1991, section 5 abolished partly suspended sentences). Section 5 of the 1991 Act provides that to impose a suspended sentence, the imposition of full imprisonment must be legally appropriate. The Act also allowed courts to impose fines and compensation orders in addition to a suspended sentence of imprisonment.

The Powers of Criminal Courts Act 1973, provides that the sentence cannot be for more than 2 years, and have an operational period (during which the sentence is Damoclean) of between 1 and 2 years. Young offenders' sentewnces cannot be suspended (R v. Dobbs, (1983) 5 Cr App).

Detention in a young offender's institution

This sentence can be imposed on an offenders aged between 15 and 20, who cannot be put in prison.

The sentence cannot less than 21 days, for 18-20 year olds, nor less than 2 months for 15-17 year olds (to prevent imprisonment of youths for trivial offences). The maximum sentence is 12 months for 15 to 17 year olds (except for fixed life offences, below).

If the offence has a fixed life sentence, under 21's will get this long. If under and 18, and the fixed sentence offence is murder, this detention will be during Her Majesty's Pleasure. If the offence carries an optional life sentence, only 18-20 year olds may receive it.

The imposition of long-term detention is possible (under the Criminal Justice and Public Order Act 1994 for persons aged between 10 and 14 convicted of an offence not carrying a fixed penalty and with a maximum sentence of longer than 14 years, indecent assault, death by dangerous driving, or death by careless driving under the influence of drugs or alcohol.

Under the Crime and Disorder Act 1998, courts may order supervision after offenders' release from detention.

Supervision may be ordered if it is desirable in the interests of rehabilitation or preventing the commission of further offences.

Secure training orders

These were introduced by the Criminal Justice Public Order Act 1994 for persistent offenders aged 12 to 14.

They last for a period of between 6 months and 24 months. The first half of the order is spent in secure detention, and the second half under supervision.

They can only be imposed on an offender who has committed 3 or more imprisonable offences and who has breached a supervision order or been convicted of an imprisonable offence whilst on a supervision order.


The death penalty was abolished by the Murder (Abolition of Death Penalty) Act 1965 (murder), and the Crime and Disorder Act 1998 (treason and piracy).

Corporal Punishment

Corporal punishment is no longer available.

Crime and Disorder Act Orders

All the orders below were introduced by the Crime and Disorder Act 1998, and are not exclusively sentences; some being 'tough on the causes of crime' not on crime itself.

As to their use and success, to date (17/8/99), 89 parenting orders have been made in 9 months in 9 pilot areas, 1 child safety order in 10 pilot areas, 602 reparation orders, and 344 action plan orders.

Anti-social behaviour orders (s. 1)

Where a local government area contains someone who in the opinion of a relevant authority has acted in an anti-social manner, i.e., a manner "that caused or was likely to cause harassment, alarm or distress to one or more persons" not in the miscreant's household; and feels that such an order to protect persons in the said area from any future anti-social behaviour; it may apply for an anti-social behaviour order to a magistrates court providing that the relevant authority has consulted every other relevant authority. Relevant authority is defined as the council for the said local government area, and every chief of police whose police area falls within the government area.

There is a minimum age limit of 10. The magistrates' court will make an order lasting at least 2 years (providing the aforementioned conditions are satisfied), which can contain any prohibition the court feels is necessary to protect people within the local government area and, optionally, adjoining areas specified in the application (providing full consultation has been made), from further anti-social behaviour

They are not strictly sentences, although will often act to control criminal behaviour, and they are heard as civil actions (but with penalties for their breach of up to 5 years in prison on indictment) on the balance of probabilities. They are designed to stop persistent harassers, particularly juveniles.

They can be varied or discharged on application by either defendant or complainant, but shall not be discharged within 2 years without both the defendant and complainant's consent.

Sex Offender Orders (ss. 2-3)

If it appears to the chief of police that someone within his area is a sex offender, and is acting in a manner that "gives reasonable cause to believe" that an order is necessary to protect the public from "serious harm from him", he may apply to the magistrates' court for an order.

Any prohibition necessary to protect the public from serious harm from the defendant may be made if the court feels the above conditions are satisfied.

They last not less than 5 years, and may be varied or discharged on application by defendant or applicant, although they may not be discharged within 5 years without their mutual consent. The penalty for breach are up to 5 years imprisonment on indictment.

Appeals against sex offender and anti-social behaviour orders (ss. 4)

Appeals lie to the Crown Court.

Parenting order (ss. 8-10)

Where a child safety order, anti-social behaviour order, sex offender order, is made in respect of a child or young person, where a child commits an offence, or a person commits the offence of failing to comply with a school attendance order or failing to secure a child's school attendance, the parent or guardian of the child in the former cases, and the offender in the latter cases, may be made subject to a parenting order providing facilities for parenting orders exist locally.

The order compels (on threat of a level 3 fine) the ordered person to attend counselling and other training (optional for repeatedly ordered parents) not more than once a week for not longer than three months; as well as complying with any other requirements, which can not last longer than 12 months.

The conditions for imposing such an order is that it would be desirable in the interests of preventing a repeat of the behaviour that led to the issue of the order (where the parenting order is ancillary to one of the Act's orders), to prevent the commission of further offences, if relevant, or of non school attendance, if relevant. The court must obtain information on the family background before issuing an order.

Appeals lie to High Court if the parenting order was issued with a child safety order. Appeals lie to the Crown Court if the order was issued with an anti-social behaviour or sex offender order.

If the parenting order was issued at the same time as sentencing a young person, appellate provision is as if the ordered person had committed the offence and the order was a sentence therefor.

If the parenting order was issued for breach of school attendance requirements, the order is treated as a sentence for breach of the said requirements for appellate purposes.

Child Safety Orders (ss. 11-13)

If (providing there is provision for them in an area) a child under the age of 10:

  1. has committed what would be an offence were they over 10
  2. a child safety order is necessary to prevent what would be an offence
  3. has breached a curfew, now designatable in an area between 9pm and 6am for unaccompanied children aged under 10
  4. has acted in an anti-social manner (defined above)

then the child may be made subject to a child safety order, heard as civil hearings, and which can require the child to be put into care, or to required to comply with any other requirement that is necessary to ensure that "the child receives appropriate care, protection and support and is subject to proper control" or to prevent the repetition of the behaviour that led to the order being made.

The order lasts 3 months or, in exceptional circumstances, 12 months, and is heard in the magistrates' court as a civil family case.

Before making an order, information on family background must be obtained.

Appeals lie to the High Court.

Reparation orders (ss. 67-68)

The reparation order is an order for a criminal young offender, ordering the offender to reparate the victim and/or community, and requirements contained in one should be commensurate with the offence's seriousness. The court must give a reason if it does not impose one when it has the power to do so.

The court may not impose an order if it intends to lock the offender up, or if it intends to subject him to a community service, combination, supervision or action plan order.

The court shall not order the offender to reparate a person without that person's consent, and to this end the court must commission a report on their attitudes to reparation (as well as to the work most suited to the offender) before imposing one

Action Plan Orders (ss. 69-70)

These orders may be imposed on a convicted offender if it is desirable to do so in the interests of his rehabilitation or to prevent the commission by him of further offences.

An action plan order consists of a requirement to comply with an action plan (a list of requirements as to where to go and what to do, including any or all of the following, attendance at an attendance centre (providing the offence is one punishable by imprisonment for over 21's), desistance from going to certain areas, education requirements, participation in activities, to present himself to a person(s) at place(s) and time(s) specified, to make reparation (conditions as with reparation orders), or to attend a hearing fixed by the court not more than 21 days after sentencing assessing the effectiveness of the sentence to that point, at which point the order may be varied) for 3 months, under the supervision and directon of an officer. They can not be imposed with detention/prison, probation, community service, a combination order, a supervision order, or an attendance centre order.

Before imposing such an order, a report must be commissioned detailing the likely benefits of the order, the parental attitude thereto, and proposed requirements in the order, and, if under 16, likely effect on family background.

Drug treatment orders (ss. 61-64)

Drug treatment orders may be imposed on anyone over 16 (providing local provision exists for them), convicted of an offence that is not carry a fixed sentence providing that the offender consents to the order. They last between 6 months and 3 years and are rehabilitative rather than retributive sentences. The conditions for their imposition is that that the offender "is dependent on or has a propensity to misuse drugs; and (b) that his dependency or propensity is such as requires and may be susceptible to treatment."

They involve treatment and testing.

Sentencing statistics

A 1998 Home Office statistical bulletin, Cautions, Court Proceedings and Sentencing England and Wales, revealed that of the 1.31 million people sentenced (249000 of these for indictable offences, of which 6000 were committed for sentence, which in addition to the 87000 already committed for trial meant that 18% of either way offences went to the Crown Court) in the magistrates' court in 1997, 22.8% were discharged, 35.2% fined, 11.5% received a probation order, 3.3% a supervision order, 8.2% a community service order, 2.2% an attendance centre order, 3.3% a combination order, 0.1% a curfew order, 10.4% were imprisoned for an average of 2.8 months for those aged over 20, and 3.1 months for those aged under 21, and 3% received some other sentence.

The Crown court sentenced as follows (242000 were sentenced): 22.8% discharged, 35.2% fined, 11.5% put on probation, 3.3% given supervision orders, 8.2% given community service, 2.2% given an attendance centre order, 3.3% given a combination order, 0.1% given a curfew, 3.1% given youth custody, 0.2% given suspended custody, 7.3% imprisoned, 2.8% otherwise sentenced.

Why are there regional variations in sentence?

There are regional variations in sentence because there is insufficient instruction to local benches - sentencing guidelines leave much room for magisterial interpretation.

Furthermore, the fact that different benches may have different political constitions may have an effect - some magistrates may be more in favour of rehabilitation, others for retribution.

There are major obstacles to sentencing consistency, such as the size, diversity and necessary independence of the magistrates.

In addition, it is likely that different crimes are committed in different parts of the country, contributing to different sentencing figures, and resulting to different judicial reactions to crimes.

How do courts decide on the sentence?

Sentencing policy is governed in the main by the Criminal Justice Act 1991, which followed the 1990 Crime, Justice and Protecting the Public White Paper, designed to reduce the prison population and increase the use of community sentences.

The courts decide their sentence based on guidelines from the magistrates' court association (where appropriate), from the maximum sentences imposable by their court (£5000 and 6 months in the magistrates' court), from the new Sentencing Advisory Panel (set up under the Crime and Disorder Act), from the maximum sentences in statutes, from the 'minimum' sentences laid down by the Crime (Sentences) Act, which provide for a minimum 3 year sentence for a third domestic burglary, life for a second serious offence and 7 years for drug trafficking offences, from the guidelines required (under the Crime and Disorder Act 1998) to be considered whether to be laid down by the Court of Appeal when there is an appeal to it on sentence, and perhaps most significantly of all, the local clerks and general bench practice.

They may also use reference books on the subject.

They will decide based on the serverity of the offence, and other mitigating and aggravating factors, and, with fines, the offender's means.

The mitigating and aggravating factors will be considered after the finding of guilt, where a plea in mitigation will be made, and a policeman will give details of previous convictions and background (e.g. 'Do they have a steady job?' A medical report may also be taken.

They will decide the sentence based on whether other offences were asked to be taken into consideration, and the time the guilty plea was made (if appropriate)(a provision of the Criminal Justice and Public Order Act) - guilty pleas must be a sincere admission of guilt rather than just an attempt to get off with a lighter sentence.

Another reason for this is to save time and reduce cracked trials (where the defendant pleads guilty at the very last minute).

The Sentencing Advisory Panel

This was part of the Crime and Disorder Act, and was historic Labour party, also having the support of Justice. Although designed to standardise sentences, it was opposed by Lord Lane LCJ and many judges as compromising judicial independence. However, it seems absurd to leave a subject of considerable independence, and one subject to widespread deabte to the whim of individual judges, when cross-party debate seems more appropriate.

The Court of Appeal is required, in laying down guidelines, to pay attention to consistency of sentencing, to the cost and success rate of sentences, to the to promote public confidence in the justice system (this implies longer sentences, particularly for child sex offenders, rapists and other popular tabloid targets) as well as the opinions of the Sentencing Advisory Panel.

Committal for sentencing

The Criminal Justice Act 1991 s. 25 amended the Magistrates Court Act 1980 to provide that to commit an offender for sentencing, they must not be less than 18 years old, and to provide that offenders can only be committed if (previously commital was based on the offender's character and antecedents):

  1. the offence or offences taken together are so serious that greater punishment should be given than the magistrates can impose, or
  2. if the offence was violent or sexual and the offender is 21 years old or older, then a sentence longer than the court can impose is necessary to protect the public from serious harm.

It also allowed for the magistrates' court to commit first offenders for sentencing for the first time.

Sentencing appeals by the prosecution

The Criminal Justice Act 1988, empowered the Attorney-General to appeal to the Court of Appeal (the Attorney-General's reference) on overly lenient sentences. This power is usually used on less than 100 occassions a year.

The reason for the introduction of this power was that short sentences attract greater publicity than longer ones, and hence have an acute effect on any sentence severity-deterrence correlation; because it caused the victim great distress; because it was unjust to those with longer sentences; and because it prevents sentencing consistency - it is unjusifiable to reduce sentences in the interests of consistency, but not decrease them.

Sentencing appeals only apply to indictable-only offences (s. 35(5) of the 1988 Act), or either way offences specifiable by order tried in the Crown Court (s. 36 (1) (a)). The Court of Appeal must give leave (s. 36(1)), and it may either quash the sentence or substitute a new one (s. 36(1)(a). The grounds for appeal are that the Attorney-General feels that the sentence was unduly lenient (s. 36 (1) (a)), including leniency founded in an error of law (s. 36 (2)). Further appeals lie to the House of Lords (s. 36 (5)) by either party on a point of law of public importance.

Early Release

This is governed by the Criminal Justice Act 1991, which replaced both remission and parole with early release (s. 33).

If offenders were given a short-term sentence (less than 4 years), they will be released after they have served half of their sentence (previously release could be after only 1/3 of the sentence had been served), and if a long-term prisoner they can be released at this point, at the Parole Board's discretion, but at the latest must be released at the 2/3 point of their sentence.

If their original sentence was for at least 12 months release will be on licence (supervision by a probation officer), which means that if convicted of an imprisonable offence during the licence period, or if failing to comply with supervision requirements, will be liable to serve the remainder of the sentence in prison. The licence period lasts until the 3/4 point of the sentence.

In addition to this, the Secretary of State may, under section 36(1), release any prisoner on licence on compassionate grounds if there are exceptional circumstances that justify it.

Life prisoners are treated differently, and if serving discretionary life sentences, can (under s 34) have their sentence referred to the Parole Board on the completion of the sentence specified by the court. Mandatory life prisoners can only be released (under s 35(2)) with the consent of the Secretary of State, Parole Board and Lord Chief Justice (athough the minimum period recommended by the court will usually be observed).

Sexual offenders are treated differently, and under section 44 where any part of the sentence is for a sexual offence, and the sentencing court so specifies, licence will be under supervision and will last for the whole of the remainder of the sentence rather than up to the 3/4 point.

The effectiveness (or otherwise) of sentencing

A 1999 Home Office review of literature on sentencing (Criminal Deterrence and Sentence Severity: an analysis of recent research) concluded that "in some circumstances, deterrence works. Ordinary people can be deterred by both formal and informal sanctions. The criminal justice system as a whole also exercises a deterrent effect -- crime would be more prevalent if offenders could offend with impunity. The review therefore concentrated on the issue of 'marginal deterrence', i.e. the effects of making changes to: (1) certainty of punishment (e.g., the likelihood of being apprehended and convicted); and (2) severity of punishment (e.g., the likelihood of a convicted offender's being imprisoned, and the length of his or her prison sentence).

The report concludes that the studies reviewed do not provide a basis for inferring that increasing the severity of sentences generally is capable of enhancing deterrent effects. The study's main findings are the following:…

(1) Correlations: Certainty Effects. Farrington, Langan and Wikstrom (1994), and Langan and Farrington (1998), …finds substantial negative correlations between the likelihood of conviction (a "certainty" measure) and crime rates…

(2) Correlations: Severity Effects. …Such negative correlations between sentence severity and crime rates as were found to exist generally were not sufficient to achieve statistical significance. These patterns, which are consistent with those found in earlier studies, provide little support for an hypothesis of marginal deterrence with respect to severity of punishment. One of these studies, Farrington, Langan and Wikstrom (1994), …provides calculations that compare the English and America (as well as Swedish) trends. The absence of a finding in that study of strong correlations for severity is notable -- because U.S. penalty levels have been substantially higher than English levels during the periods studied.

The survey also examines three econometric studies of deterrence (Marvell and Moody 1994; Reilly and Witt 1996; and Levitt 1996). The first of these, …finds prison populations to have been negatively correlated with crime rates. However, this study's measure -- prison populations -- does not distinguish certainty from severity, and hence provides no basis for inference concerning severity effects. The second,… finds one measure of severity -- sentence length -- to have been similarly correlated with crime rates. However, the present review concludes that this study's measure of severity is not specified adequately, since no controls are provided for the likelihood of a convicted offender's being imprisoned.

(3) Perceptual and Contextual Deterrence. …This literature, based largely on surveys, examines the link between potential offenders' beliefs concerning likelihood or severity of punishment, and their reported decisions or expectations of offending. …For at least some classes of potential offenders, their perceptions of the risks of being apprehended and punished (when they are aware of such risks) affect their reported choices of whether to offend. These studies thus help confirm that known penal threats can have a deterrent effect. However, the studies with the least methodological problems (those based on scenarios of offending) are mostly concerned with informal sanctions; and, to the extent they address criminal-justice responses at all, deal with "certainty" variables such as perceived likelihood of prosecution. They thus do not shed much light on questions of severity effects.

(4) Social Ties. The recent studies, … provide additional confirmation for the hypothesis that social ties, or the lack of them, affect the deterrent effects of the criminal-justice policies -- with persons having strong social ties …being the more readily deterred by prospects of being apprehended. …Persistent offenders with weak social ties, such as persistent burglars, often act impulsively…. Such impulsivity may reduce these offenders' amenability to being deterred through increased penalties.

(5) Knowledge of Punishment Threats. Deterrence concerns desistance from crime through fear of the legal consequences. It is consequently subjective, so that changes in criminal justice policies can have no deterrent effect unless they alter potential offenders' beliefs about sanction risks. Thus even were crime rates statistically associated with changes in certainty or severity of punishment, this would not establish a deterrent effect unless there also were evidence that considerable numbers of potential offenders were aware of those changes. A recent Home Office study (Hough and Roberts 1998) shows that members of the general public tend to be in error about sanction risks, in the direction of underestimating greatly severity of the sanctions actually imposed. To the extent these misconceptions are shared by those tempted to offend, changes in sentencing policy may fail to achieve deterrent objectives -- because potential offenders cannot be deterred by sentencing changes of which they are unaware. It is true that when sentencing changes are introduced, newly-sentenced offenders may experience their effects; and that information may be communicated through their social networks. But it is not known how widely, or how quickly, such information spreads. Since general deterrence is directed to potential offenders, and not necessarily only to convicted offenders and their immediate peers, this issue of dissemination is a critical, and unexplored, area of study. The absence of such data on knowledge of punishment risks makes it difficult to draw valid inferences concerning the marginal deterrent effects of changes in sanction levels."

Restorative Justice: An Overview (a Home Office paper) said that "Only limited action is taken to encourage the reintegration of offenders, and the evidence shows that this is largely unsuccessful. It requires only the passive acquiescence of offenders, who are not expected to take the initiative in making good what they have done but only to suffer their punishment. It is distant from the community and does little to encourage any role for it in the prevention of crime. Despite various programmes intended to divert offences from the full process and reduce costs and delays, their use without parallel attention to victims' needs and future prevention has sometimes led to the criticism that much crime is not taken sufficiently seriously. [(The Crime and Disorder Act seeks to deal with this last point by eliminating the use of multiple cautions and instituting opportunities for victim consultation and preventive measures, an approach that accords with the principles of Restorative Justice.) Restorative justice cannot be forced upon offenders, but] the majority of individuals offered a chance to participate would like to do so."

A 1999 Home Office Research and Statistics Department report stated that "56% of all sentenced prisoners discharged in 1994 were reconvicted of a standard list offence within two years in comparison with 54% of offenders who commenced community penalties in 1994 there is also little real difference in reconviction rates over time."

Among adult male offenders released from prison in 1994, 26% were recommitted to custody within two years. The rate for young male offenders was 48%

"Adjustments made for offender characteristics and pseudo-reconvictions (discrepancies arising from using the date of reconviction as a proxy for the date of reoffending) reduce the difference between overall reconviction rates for immediate custody and community penalties to only 0.1%;" excluding proceedings for breach of order, community orders have a 3% advantage.

"Reconviction rates were generally lower for prisoners discharged from longer sentences. This is partly a reflection of differences in prisoners' characteristics and partly differences in the intensity and length of post-release supervision, therefore covering more of the two-year follow-up period.