Recent developments

Fines

The introduction to the ‘The Approach to the Assessment of Fines’ section of the 2008 Magistrates Guidelines (issued by the Sentencing Guidelines Council) states that ‘The aim is for the fine to have an equal impact on offenders with different financial circumstances; it should be a hardship but should not force the offender below a reasonable “subsistence” level’. The approach now is to place the offending in question within a band – normally one of three bands - depending on seriousness; then financial liability is fixed according to the individual’s means.  Two further bands are provided for particular circumstances. This approach evidences a greater concentration on equality of impact than before.  However, research would suggest that magistrates were hesitant, for example, to apply guidance and impose high fines for less serious offences because the outcome appeared to be based too heavily on equity (impact) and not enough on proportionality: see Raine, J. and Dunstan, E. (2009) ‘How well do sentencing guidelines work? Equity, proportionality and consistency in the determination of fine levels in the magistrates’ courts of England and Wales’ The Howard Journal Vol 48(1), 13-36.

Mentally disordered offenders

Lord Bradley’s review of people with mental health problems or learning disabilities in the criminal justice system (2009) noted in its Introduction that ‘Evidence suggests that there are now more people with mental health problems in prison than ever before’ and that the longstanding government policy of ‘diversion’ for people with mental health problems has never been consistently implemented. The Coalition Government has said that progress is being made: see Ministry of Justice (2010) Multi Agency Public Protection Arrangements Annual Report 2009/10. London, Ministry of Justice Statistics Bulletin, pp. 3-4.

7.2.2 The Offender: Vulnerability and Age pp 215-217

Older prisoners: The Chief Inspector of Prisons has published the follow up study to the 2004 Review of Older Prisoners. Although there had been some positive improvements since 2004, there was still 'some way to go' and the Report is critical of the fact that there is still no national strategy for older prisoners.
See (2008) Older Prisoners in England and Wales: a follow-up to the 2004 thematic review by HM Chief Inspector of Prisons, HMIP.

7.3.1. Fines as punishment pp 220-223

The restriction on the use of community orders such that only those convicted of imprisonable offences can be subject to such an order, might encourage more use of financial penalties. (See Further developments, Chapter 3.)

7.3.2 Units of financial deprivation pp 223-225

Raine, J. and Dunstan, E. (2009) ‘How well do sentencing guidelines work? Equity, proportionality and consistency in the determination of fine levels in the magistrates’ courts of England and Wales’ The Howard Journal Vol 48(1) 13-36.

This recent article in the Howard Journal of Criminal Justice reports on research undertaken in 2006 in the magistrates’ courts of England and Wales for the Sentencing Guidelines Council. It used 12 case studies with magistrates in order to examine the extent to which the objectives of equity (of impact), proportionality (in relation to seriousness) and consistency (in sentencing patterns) were achieved. All participants were using the structured sentencing guidance for fines which included assessment of offender means and recommended starting points and ranges.

The research suggested that many panels, although applying the guideline methodology, ‘subsequently chose to change their minds’ (at p. 29). Most panels also expressed concern at the restrictions on their discretion caused by the guidance.

‘One important conclusion from the research…was that “proportionality” seemed to be the over-riding concern for sentencers in the workshops’ (at p.31). In particular they note the following:
‘In instances where very low fines were generated, the concerns were about the justice process failing to ensure “just deserts” and appropriate punishment and fears of giving the wrong message to both the offender and the wider public’ (at p. 32).

In relation to high fines for less serious offences but where the offender had the means to pay the concern was that the outcome was based too heavily on equity and not enough on proportionality (ibid).

7.3.3 Default and enforcement pp 226-7

The Criminal Justice and Immigration Act 2008 s41 (already in force) inserts new paragraphs 9A-9C in the Courts Act 2003, Schedule 5, Part 3. On request to the Secretary of State the staff of Her Majesty's Courts Service (HMCS) can gain access to benefit records held by the Department for Work and Pensions (DWP) for the purpose of fine enforcement.

Attendance centre requirement for fine default: the Criminal Justice and Immigration Act 2008 s40 amends, when implemented, s300 of the CJA 2003 to give the courts the power to impose an attendance centre requirement on a fine defaulter aged 16-24. Currently section 300 allows the courts to impose an unpaid work requirement or a curfew requirement.

7.4.1 Mentally disordered offenders – sentencing policy pp 229-231

In July 2009 the Department of Health published the Bradley Report:

Department of Health (2009): Lord Bradley’s review of people with mental health problems or learning disabilities in the criminal justice system (COI for the DH, London).

The first two paragraphs of the Introduction to the Executive Summary make the following points:

1. Evidence suggests that there are now more people with mental health problems in prison than ever before. While public protection remains the priority, there is a growing consensus that prison may not always be the right environment for those with severe mental illness. Custody can exacerbate mental ill health, heighten vulnerability and increase the risk of self-harm and suicide.
2. The policy of ‘diversion’ for people with mental health problems or learning disabilities has been supported by Government since as far back as 1990. But the lack of a nationally guided approach has meant that implementation has been inconsistent.

In the ‘Conclusions’ the Executive Summary points out that, “The first step to the effective management of offenders is the existence of good early identification and assessment of problems, which can inform how and where they are most appropriately treated” (para 80).  The Report also encourages the greater use of the mental health requirement in a community sentence, rather than custody, for mentally ill offenders (para 38) and, to that end, recommends more research on its operation and the making of service level agreements between Her Majesty’s Court Service, the NHS and he Probation Service. The Report also expressed concern that the IPP sentence has had a critical effect on prisoners and recommends research in this area. Although the report stresses that, although screening for mental illness should take place early in the criminal justice process, there should also be better screening at reception into prison (para 43).

The Executive Summary and the Full Report can be obtained via http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_098694 

7.4.2. Treatment under the Mental Health Act 1983 pp 231-233

The Mental Health Act 2007 sections 1 -3 (categories of mental disorder), 4 -6 (appropriate treatment test), 7 (definition of medical treatment) and 8 (fundamental principles) have been in force since 3 November 2008. These provisions have amended sections 1 and 37 of the Mental Health Act 1983 so that previous criteria and definitions no longer apply.