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Cambridge.University.Press.Sentencing.and.Criminal.Justice.Dec.2005.
This page intentionally left blank Sentencing and Criminal JusticeProviding unrivalled coverage of one of the most high-profile stages in the criminaljustice process, this book examines the key issues in sentencing policy and practice.It provides an up-to-date account of the legislation on sentencing together withthe ever-increasing amount of Court of Appeal case law. The aim of the book is toexamine English sentencing law in its context, drawing not only upon legislation andthe decisions of the courts but also upon the findings of research and on theoreticaljustifications for punishment.The analysis is given depth and perspective by examining the interaction betweenthe law and the wider criminal justice system, including the prison and probationservices. The book also discusses the influence of statements from politicians, themass media and public opinion. It engages with the theory of sentencing and thereasons for depriving offenders of their liberty. It looks at the statistical evidence onthe effectiveness of sentences, and pays particular attention to difficult questionsabout aggravating and mitigating factors in sentencing, the proper approach todealing with persistent offenders, the relevance of race, gender and unemployment,and the growth of ‘preventive’ orders (such as anti-social behaviour orders) whichare not sentences as such but which impose restrictions and obligations.This new edition has been extensively revised so as to integrate the new lawsintroduced by the Criminal Justice Act 2003, which has brought sweeping reformsto English sentencing.Andrew Ashworth is Vinerian Professor of English Law at the University ofOxford. His previous titles include Principles of Criminal Law (4th edn, 2003), TheCriminal Process (3rdedn,2005,with Mike Redmayne) and Proportionate Sentencing(2005,with Andrew von Hirsch). The Law in Context SeriesEditors: William Twining (University College London)and Christopher McCrudden (Lincoln College, Oxford)Since 1970 the Law in Context series has been in the forefront of the movement tobroaden the study of law. It has been a vehicle for the publication of innovative scholarlybooks that treat law and legal phenomena critically in their social, political and economiccontexts from a variety of perspectives. The series particularly aims to publish scholarlylegal writing that brings fresh perspectives to bear on new and existing areas of law taughtin universities. A contextual approach involves treating legal subjects broadly, usingmaterials from other social sciences, and from any other discipline that helps to explainthe operation in practice of the subject under discussion. It is hoped that this orientationis at once more stimulating and more realistic than the bare exposition of legal rules. Theseries includes original books that have a different emphasis from traditional legaltextbooks, while maintaining the same high standards of scholarship. They are writtenprimarily for undergraduate and graduate students of law and of other disciplines, butmost also appeal to a wider readership. In the past, most books in the series have focusedon English law, but recent publications include books on European law, globalisation,transnational legal processes, and comparative law.Books in the SeriesAnderson, Schum & Twining: Analysis of EvidenceAshworth: Sentencing and Criminal JusticeBarton & Douglas: Law and ParenthoodBell: French Legal CulturesBercusson: European Labour LawBirkinshaw: European Public LawBirkinshaw: Freedom of Information: The Law, the Practice and the IdealCane: Atiyah’s Accidents, Compensation and the LawClarke & Kohler: Property LawCollins: The Law of ContractDavies: Perspectives on Labour LawDe Sousa Santos: Toward a New Legal Common SenseDiduck: Law’s FamiliesElworthy & Holder: Environmental Protection: Text and MaterialsFortin: Children’s Rights and the Developing LawGlover-Thomas: Reconstructing Mental Health Law and PolicyGobert & Punch: Rethinking Corporate CrimeHarlow & Rawlings: Law and Administration: Text and MaterialsHarris: An Introduction to LawHarris: Remedies in Contract and TortHarvey: Seeking Asylum in the UK: Problems and ProspectsHervey&McHale: Health Law and the European UnionLacey & Wells: Reconstructing Criminal LawLewis: Choice and the Legal Order: Rising above PoliticsLikosky: Transnational Legal ProcessesMaughan & Webb: Lawyering Skills and the Legal ProcessMoffat: Trusts Law: Text and MaterialsNorrie: Crime, Reason and HistoryO’Dair: Legal Ethics Oliver: Common Values and the Public–Private DivideOliver&Drewry:The Law and ParliamentPicciotto: International Business TaxationReed: Internet Law: Text and MaterialsRichardson: Law, Process and CustodyRoberts & Palmer: Dispute Processes: ADR and the Primary Forms of Decision MakingScott & Black: Cranston’s Consumers and the LawSeneviratne: Ombudsmen: Public Services and Administrative JusticeStapleton: Product LiabilityTur pin: British Government and the Constitution: Text, Cases and MaterialsTwining: Globalisation and Legal TheoryTwining: Rethinking EvidenceTwining & Miers: HowtodoThings with RulesWard: ACritical Introduction to European LawWard: Shakespeare and Legal ImaginationZander: Cases and Materials on the English Legal SystemZander: The Law-Making Process Sentencing andCriminal JusticeFourth editionAndrew AshworthVinerian Professor of English Law,University of Oxford cambridge university pressCambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São PauloCambridge University PressThe Edinburgh Building, Cambridge cb2 2ru,UKFirst published in print formatisbn-13 978-0-521-67405-8isbn-13 978-0-511-13466-1© Andrew Ashworth 20052005Informationonthistitle:www.cambridge.org/9780521674058This publication is in copyright. Subject to statutory exception and to the provision ofrelevant collective licensing agreements, no reproduction of any part may take placewithout the written permission of Cambridge University Press.isbn-10 0-511-13466-5isbn-10 0-521-67405-0Cambridge University Press has no responsibility for the persistence or accuracy of urlsfor external or third-party internet websites referred to in this publication, and does notguarantee that any content on such websites is, or will remain, accurate or appropriate.Published in the United States of America by Cambridge University Press, New Yorkwww.cambridge.orgpaperbackeBook (EBL)eBook (EBL)paperback ContentsPreface page xTable of statutes xiTab l e o f cases xvi1Anintroduction to English sentencing 11.1 Courts and crimes 11.2 The available sentences 21.3 The general statistical background 81.4 The criminal process 221.5 The formal sources of sentencing decisions 311.6 Informal influences on sentencing practice 412 Sentencing and the constitution502.1 The separation of powers in sentencing 502.2 The Sentencing Advisory Panel and the SentencingGuidelines Council 542.3 The judiciary, the executive and sentencing policy 582.4 The Judicial Studies Board 612.5 The position of the magistracy 622.6 Conclusions 663 Sentencing aims, principles and policies673.1 The aims of the criminal justice system 673.2 Justifying state punishment 703.3 The rationales of sentencing 723.4 Some principles and policies 913.5 Sentencing rationales and English criminal justice 984 Elements of proportionality1024.1 The proportionality principle 1024.2 Opinions about offence-seriousness 104vii viii Contents4.3 Developing parameters of ordinal proportionality 1064.4 Offence-seriousness in practice 1144.5 Individual culpability 1424.6 Proportionality, human rights and European law 1474.7 Proportionality and offence-seriousness 1485 Aggravation and mitigation1515.1 Some preliminary problems of principle 1515.2 Aggravation as increased seriousness 1535.3 Mitigation as diminished seriousness 1605.4 Personal mitigation 1635.5 Mitigation and aggravation in practice 1785.6 Aggravation and mitigation in theory 1806 Persistence, prevention and prediction1826.1 Historical introduction 1826.2 Three approaches to punishing persistence 1846.3 Previous convictions and the Criminal Justice Act 2003 1916.4 The problem of ‘professional’ criminals 2016.5 Persistent petty offenders 2026.6 The prevention of ‘anti-social behaviour’ 2036.7 Minimum sentences and selective incapacitation 2066.8 ‘Dangerous offenders’ and the 2003 Act 2106.9 Conclusion 2177 Equality before the law2197.1 The principle and its challengers 2197.2 Race 2217.3 Gender 2247.4 Employment status 2277.5 Financial circumstances 2307.6 Social status 2337.7 Equality, parsimony and risk 2348 Multiple offenders2398.1 Charging the multiple offender 2408.2 Concurrent or consecutive? 2428.3 Effect of the statutory principle 2478.4 Consecutive sentences and the totality principle 2488.5 Multiple offenders and proportionality 2549 Custodial sentencing2559.1 The state of the prisons 255 . 377Sch. 37 3 4Criminal Justice and Court ServicesAct 2000 295s. 28 336s. 41 14 0Criminal Justice and Police Act 2001s. 33 33 8Criminal Justice and Public Order. 208s. 45 37 6Criminal Damage Act 1971 5 1Criminal Injuries Compensation Act1995 29 8Criminal Justice Act 1948 18 3Criminal Justice Act 1967 18 3Criminal Justice