HOWARD LEAGUE SCOTLAND LECTURE –
WEDNESDAY 22 OCTOBER 2014
The Purpose of Sentencing –
From Beccaria to the OLR and Beyond
Introduction
I last visited the subject of sentencing in the public forum almost a year ago 1.
At that time, I was keen to provide an insight into the way in which the courts
sentenced offenders in practice and where there might be room for improvement in
that exercise. The talk touched upon the merits of the retributivist or “just deserts”
school of punishment, whereby the severity of the punishment was to be made to fit
the crime, and the utilitarian school, which has at its core the need for the
rehabilitation of the offender as part of a punishment designed to benefit society as a
whole. The reality, however, was that courts, to a degree out of necessity, tended to
select sentences on the basis of established practices and precedents rather than by
reasoning from first principles.
There were few such principles expressed as a
generality by the High Court sitting in its appellate capacity. Nevertheless, the
Scottish courts had, in parallel with current Government policy, moved away from a
focus on retribution towards a scheme whereby offenders were, so far as practicable,
kept in the community after sentence rather than being isolated from it in
consequence. I do not wish to repeat what I said then, but to complement it with a
related theme concerning the lessons from history. The fundamental message which
this talk is intended to convey is that, like many areas of the law where improvement
is possible, it is important not to dwell, as many lawyers and other professionals
seek to do, on tradition or established practice. Rather, it is essential to embrace new
technology and new thinking with a view to developing, albeit over time, sentencing
policies and practices suited to the modern era and not that of a century ago.
Constant review is a necessity.
1
SACRO Annual Lecture 2013: Sentencing: Beyond Punishment and Deterrence 5 November
2013.
MacKenzie: “Matters Criminal”
Beccaria’s seminal work, a Treatise on Crimes and Punishments, was published
in Italian2 in 1764, 250 years ago. It was thrust upon a continental Europe whose
criminal law was composed of the foundations of the Corpus Juris of Justinian with
numerous diverse building blocks of local statutes and traditions. The law, and
especially punishment, was dominated by theology and the despotism of princes 3. It
was consequently arbitrary, confused and particularly cruel4.
The criminal law of Scotland had first been set out systematically in one
comprehensive volume by Sir George MacKenzie almost a century earlier5. His Laws
and Customs of Scotland in Matters Criminal was published in 16786, shortly after the
re-structuring of the High Court of Justiciary in 1672 7. The general scheme of the
work involves setting out separate crimes and their punishments under individual
chapter headings in order of their perceived seriousness. A comparison is made8
between the biblical9 or roman10 penalties and those permitted under the Scots
statutes11, as set out in the Regiam Majestatem12.
There is a lasting impression of a system in which death remained as the
penalty for many serious offences, notably the pleas of the Crown (robbery, rape,
murder and wilful fire-raising), but only where this punishment was specifically
authorised by statute.
Death was invariably accompanied by the escheat
2
Trattato dei delitti e delle pene.
3
Maestro: Voltaire and Beccaria as Reformers of Criminal Law (1942) p 2.
4
ibid.
5
Balfour’s Practicks (Stair Society Vols 10 and 11) did deal with “caufis criminal” (II, pp 503 –
545) and referred to the many Scots statutes under which punishments were laid down.
6
Now reprinted in edited form by the Stair Society rather anonymously as volume 59
“Matters Criminal”.
7
Courts Act 1672, placing the High Court under the auspices of the Lord Justice General, the
Lord Justice Clerk and 5 Lords Commissioners of Justiciary selected from the Court of
Session.
8
eg Usury (ibid) p 181, I.24. 7.
9
eg Theft (ibid) pp 146-148, I.19. 6-7.
10
eg Adultery (ibid) pp 130-131, I.17. 2-3.
11
eg Murder (ibid) pp 99-100, I.11.15, Stat Rob 3, cap 43.
12
ibid p 10, I.1.3.
2
(confiscation) of moveable property13. By MacKenzie’s time, the death penalty was
almost invariably carried out by hanging14.
Lesser crimes were dealt with by banishment from the burgh, county or even
Scotland and by various forms of corporal punishment. These would include, at one
end of the scale, the cutting off of the hand and boring of the tongue and, at the
other, flogging15 and the pillory. The significant feature in all of this for present
purposes is the absence of imprisonment as a penalty, no doubt because of the cost
involved, not to the state, but to the local burgh16. Prisons, such as those in the
tollbooths, were primarily for the detention of prisoners during the short period
prior to trial. No statute of the time prescribed imprisonment of more than one year
for any defined offence. The general view was that such a punishment was either
likely to result in death anyway, given the prison conditions, or was worse than
death because of the privations involved.
What may also have a profound effect on the reader of MacKenzie are his
descriptions of the dark side of the system exemplified first by the detailed treatment
of witchcraft as a crime. Following upon the advice in the book of Exodus17, witches
should not be suffered to live. Secondly, there was the institution of torture which,
although said to have been “seldom used”18, remained competent before the Privy
Council and was occasionally sought by the Crown in order to obtain the names of
accomplices in acts of perceived treason19.
MacKenzie was, despite his undeserved moniker20, an enlightened man21 who
was highly critical of the way in which punishments were imposed. On the general
13
ibid p 403, II.30. 5.
14
See generally Irvine Smith: Criminal Procedure in Stair Society Vol 20 “Introduction to
Scottish Legal History” p 444, para 24 et seq.
15
ibid p 446, para 28 which records the last public flogging in Glasgow as in 1793.
16
ibid p 447 para 30.
17
MacKenzie p 67, I.10.1; Exod 22.18.
18
MacKenzie, p 391, II.27.1.
19
Laese Majestas or lèse majesté.
20
As the Lord Advocate pursuing the Covenanters, he was referred to as the “bluidy
MacKenzie”; see Robinson’s introduction to “Matters Criminal” p xxv.
21
Although not according to Robinson: Law, Morality and Sir George MacKenzie, Stair Society
Vol 54 p 11.
3
subject of punishment and its purpose, to which he devoted a small separate
chapter, MacKenzie wrote:
“Punishments are inflicted, not only to satisfy either the public revenge of the
law, or the private revenge of the party, but rather to deter others for the
future; and yet they are rather inflicted upon either of these designs than to
punish the offender and make him insensible, for what is done can no more
be helped”22.
He had then applied his mind to the subject. Well over 300 years ago, he had
identified two of the cornerstones of what is still sentencing policy: retribution and
deterrence. At that time, however, there was little by way of flexibility in the system
to achieve much else, although there is at least a flicker in his remarks that
something more constructive might be the way forward. Punishment, in the sense of
inflicting pain on the offender, whether fatal or otherwise, was not particularly
helpful.
Beccaria and Voltaire
Shortly before MacKenzie’s Matters Criminal had been published, there had
been the beginnings of what was to become a marked change in the approach to
crime, and criminal law in general, on the continent. There were the first tentative
steps towards a modern theory of crime and punishment.
This started with
Grotius23 who, for the first time, set out the purposes of punishment as including the
reformation of the criminal, as well as the satisfaction of the victim and the
deterrence of others24. There was a desire to introduce an element of proportion
between a crime and its punishment25. There was a growing movement26 which
promoted the idea that society should move away from biblical or theological
notions of revenge27. It should depart from the use of extreme penalties for religious
crimes, including witchcraft, blasphemy and heresy, which have no obvious direct
adverse effect on people or society. Torture should be abandoned as a mode of
proof or punishment.
The culmination of all this was the realisation, first
22
ibid p 400 (II.30.1).
23
Hugo de Groot: De Jure Belli et Pacis (1670), to whom Mackenzie makes some, not always
exact, reference; see Matters Criminal p 447.
24
ibid Vol II c XX, nos VI-IX.
25
ibid nos IX and XXVIII.
26
eg the work of Samuel Pufendorf: De jure naturae et gentium (1672).
27
The Mosaic Law (Lex Talionis).
4
propounded by Montesquieu, that the scale, severity and cruelty of punishments did
not correlate directly with the incidence of crime28.
In the century between Matters Criminal and Hume’s Commentaries on Crimes,
first published in 1797, there had been a substantial alteration in thinking amongst
those prepared to embrace the new philosophical ideas on societal functioning. At
the heart of this was Voltaire, who had taken to campaigning for improvements in
criminal justice following upon a series of miscarriages of justice resulting in the
death of the unfortunate accused. One of the most infamous was the execution of
Admiral Byng in England in 1757.
Byng had fallen foul of the Articles of War 29 which applied to the Royal Navy
and required, on pain of death, that every person in the fleet did their “utmost”
when engaging enemy ships. Byng had prudently declined to pursue a superior
French fleet at Minorca. Although acquitted of cowardice, he was convicted by court
martial of failing to do his utmost. A recommendation of clemency was made by the
court and taken by the Prime Minister to the King. George II refused to countenance
it and the admiral was shot by marines on the quarterdeck of his own flagship. It
was Voltaire, in Candide, who composed the sentence:
“Dans ce pays-ci, il est bon de tuer de temps en temps un admiral pour encourager les
autres.”
There were outrages of a more local nature. One resulted in a public outcry in
France and concerned the execution of Jean Calas in 1762. Monsieur Calas’s son had
been found hanged at his home in Toulouse. He had committed suicide. The
family, fearing the consequences of that crime, as it was, made the mistake of
disguising it as murder. The father, who was a Huguenot, was suspected of this
crime; the alleged motive being to stop his son converting to Catholicism. He was
convicted, broken on the wheel, strangled and burned. Another was the torturing
and beheading of the 20 year old Chevalier de La Barre for failing to acknowledge a
holy procession in Abbeville, Picardy, in 1766, later referenced by Dickens in the
opening lines of a Tale of Two Cities. Voltaire’s Dictionnaire Philosophique was ordered
to be burnt with the body of the unfortunate chevalier.
28
Lettres persanes LXXX (1721) and later in Esprit des Lois (1748).
29
Article 12. A precursor to the Armed Forces Act 2006, s 15.
5
Voltaire, who was a philosopher and not a lawyer, stepped into this world of
injustice and barbarity and moved his campaign against religious intolerance and
fanaticism, prevalent at the time, into the field of criminal justice. It was he who, for
the first time, was able to galvanise a relatively apathetic public on this particular
subject into pressing for reform of the haphazard criminal justice systems of Europe.
His stepping off point on this crusade was his reading of Beccaria’s treatise.
Cesare Bonesana, Marquis Beccaria of Milan, is a legendary figure who, in his
early years, was of Byronesque stature. He was born in 1738 into a noble family,
who sent him to school for 8 years under the Jesuits at Parma. He studied law at
Pavia, where he graduated at the age of 20. He had come under the influence of the
French philosophers and specifically also of David Hume30.
The philosophers’
teachings had had a profound effect on him after what he described as 8 years of
fanatical education. Meantime, he had been forisfamiliated, following an unsuitable
marriage, and found himself under the patronage of Pietro Verri, who, with his
brother, ran a form of salon for philosophers in Lombardy.
Whilst describing
Beccaria as having a tendency to laziness and melancholy, Verri encouraged him to
develop his economic and philosophical talents. Thus, at the age of only 25, Beccaria
wrote his great treatise on crimes and punishments. It was published anonymously
at Livorno31 in 1764.
It was an instant success; so much so that the Société
Economique in Berne awarded its then unknown author a gold medal, lauding him
as “a citizen who dared to raise his voice in favour of humanity against the most
deeply ingrained prejudices”32. The treatise went through six re-prints in the space
of two years. It was translated into French33, in which it was even more successful,
and from that into English. By 1804, the English version, with its “commentary” by
Voltaire, had gone through five editions.
Beccaria was anxious in his preface to draw attention to the “errors,
accumulated through many centuries” which had “never been exposed by ascending
to general principles”.
This form of reasoning is at the centre of this essay.
Beccaria’s fundamental premise was that society was busy relying on a system based
on tradition, which had not been tested empirically from first principles in the
circumstances then prevailing. The courts were doing things, including punishing
30
See Maestro (supra) p 52, quoting from a letter to Morellet 1766.
31
Leghorn.
32
ibid p 55.
33
By Morellet.
6
miscreants (as well as the occasional innocent), by using a variety of cruel and
unusual penalties, without critically examining why; other than by saying that they
had always done so.
Reading Beccaria continues to reward, for the simplicity and force of, and
perhaps even a degree of naiveté in, his reasoning. On the topic of this paper, or as
he puts it “the intent of punishments”, he wrote:
“…it is evident, that the intent of punishments is not to torment a sensible
being, nor to undo a crime already committed. Is it possible that torments,
and useless cruelty, the instruments of furious fanaticism, or of impotency of
tyrants, can be authorised by a political body, which, so far from being
influenced by passion, should be the cool moderator of the passions of
individuals? Can the groans of a tortured wretch recall the time past, or
reverse the crime he has committed?
The end of punishment, therefore, is no other, than to prevent the criminal
from doing further injury to society, and to prevent others from committing
the like offence. Such punishments, therefore, and such a mode of inflicting
them, ought to be chosen, as will make strongest and most lasting
impressions on the minds of others, with the least torment to the body of the
criminal.”
On the “mildness of punishments” he stated:
“Crimes are more effectually prevented by the certainty, than the severity of
punishment. …The certainty of a small punishment will make a stronger
impression, than the fear of one more severe, if attended with the hopes of
escaping…
…The countries and times most notorious for severity of punishments, were
always those in which the most bloody and inhuman actions and the most
atrocious crimes were committed; for the hand of the legislator and the
assassin were directed by the same spirit of ferocity…
In proportion as punishments become more cruel, the minds of men… grow
hardened and insensible… That a punishment may produce the effect
required, it is sufficient that the evil it occasions should exceed the good
expected from the crime; including in the calculation the certainty of the
punishment, and the privation of the expected advantage. All severity beyond
this is superfluous, and therefore tyrannical.”
7
All of these straightforward statements of principle continue to have
resonance in the modern world 250 years after they were composed. On the death
penalty34, Beccaria35 thought it legitimate only in times of revolution or anarchy:
“But in a reign of tranquillity; in a form of government approved by the
united wishes of the nation; …; where riches can purchase pleasures and not
authority, there can be no necessity for taking away the life of the subject.”
Much of what Beccaria advocated was essentially revolutionary in content. It
promoted humanity and reason over tradition36. This, even today, can be a difficult
line to pursue, especially in the face of opposition from the legal profession and
others with vested interests. It is not at all surprising therefore that Beccaria was
attacked by the church and many of the judges and academics of the day. That
notwithstanding, by 1767, Beccaria had become one of the most famous men in
Europe. He accepted appointment as professor of economics at Milan.
As might have been expected, it was a Scotsman37 who introduced the Treatise
to Voltaire. They never met, but they corresponded. It was Voltaire who took
Beccaria’s youthful ideals and attempted to convert them into reality. Without going
into the details of that process, by the end of his life, and having written his Prix de la
Justice et de l’humanitė38 in his early eighties, what had been regarded as well
established criminal justice systems, founded upon the works of the great jurists and
longstanding traditions, had come to be thought of as “a collection of errors,
cruelties and prejudices”39. Voltaire’s thoughts were adopted by some princes40, but
their real effect came during the Revolution and afterwards with the development of
the Napoleonic Codes41. From that point on, a more humane and reasoned approach
came to be adopted in most of Europe even if, in England42, there remained a
significant disproportion between crimes and their punishment and a number of
34
c xxvii.
35
although not Voltaire.
36
Maestro (supra) p 63.
37
ibid p 73, namely James Macdonald.
38
177.
39
Maestro (supra) p 100.
40
Notably Frederick II of Prussia and Catherine II of Russia.
41
The Penal Code and the Code of Criminal Procedure (1808-10).
42
Many aspects of English procedure were admired by Voltaire, notably its openness and
the defence afforded to the accused.
8
particularly unpleasant forms of corporal punishment for a vast catalogue of
nominate crimes.
Hume: “Commentaries”
Into this world, came David Hume, nephew of the philosopher, who passed
advocate in 1779. A confirmed Tory, Baron Hume was not obviously suited, by way
of experience, to write about the practical workings of the criminal, as distinct from
the civil, law. He has nevertheless come to be regarded by many lawyers as the
greatest of the Institutional Writers on the subject.
One of the striking features of Hume’s work, as distinct from that of
MacKenzie, is its lack of any substantial reference to the corpus iuris43 in favour of a
description of ancient customs and practices gleaned from old Scots Acts and the
records of the many cases from the High Court of Justiciary which he had noticed in
his research of the Books of Adjournal. His stated intention was not to create a
philosophical treatise on criminal jurisprudence, but to initiate the Scots lawyer in
the elements of his own domestic system44. Crimes were enumerated according to
their frequency, commencing with theft. Punishments were still generally dealt with
in the chapter specific to the crime.
Although Hume noticed the enlightened views of Grotius, he adopted a far
more reactionary approach than MacKenzie, of whom he was frequently critical45;
even advocating the use of the death penalty for a single act of theft 46. He reasoned,
no doubt strictly correctly, that:
“… if we do not attend to the influence of the several crimes on the peace,
good order and prosperity of society, but think of settling a scale of pains for
them, in proportion purely to their wickedness and natural deformity, it is not
in the article of theft only that reformation must be made; but almost the
whole system of punishments must be modelled anew.”47
That is, of course, precisely what Beccaria and Voltaire had been proposing,
yet Hume reverted to the ancient Leges Burgorum to justify continued barbarity. That
Hume: Commentaries Introduction pp 15-17.
See Walker’s Introduction to the 1986 Reprint (fourth un-numbered page).
45 Advance warning of this is given in the third paragraph of the introduction where
Mackenzie is damned by faint praise.
46 Hume: Commentaries (Bell ed) I.ii.IX reprint p 86 “si sit admodum grave”.
47 ibid.
43
44
9
is remarkable, given that he considered that, at the time of MacKenzie, the “country
had advanced but little in any sort of improvement” and was “utterly remote from
what Scotland” had become by the time of his writing48. Despite these changes,
Hume considered that the penalties developed in earlier “factious and unruly” times
should remain in force49. Hume’s approach was to regard criticisms of the Scots
practices, that they were “sanguinary and tyrannical in comparison with others”, as
unfounded. Rather “our custom of punishment is eminently gentle”.
The treatment of murder by Hume is hardly less dark, with its reference to the
Act of George II50 “for better preventing the horrid crime of murder”.
This
authorised the solitary confinement of convicted murderers and the surgical
dissection of their bodies by the anatomy schools after execution.
Presumably
because of Hume’s political views, he was not inclined to accept the teachings of the
enlightened philosophers of Europe. He described books, which advocated that all
monarchy and hereditary rank, clerical dignities and establishments of religion, were
contrary to reason and justice, as “reserved for the wickedness of the present age”51.
What is interesting, by the time of Hume, is the rise in imprisonment, albeit as
a punishment “applied chiefly to the inferior offences” 52. Hume at least recognises
the effects of imprisonment as:
“…the solitude, the depression of spirits, the loss of health, … the loss of the
means of subsistence to his family, to say nothing of the indelible injury to
fame, and the risk, especially to the young, from the contagion of the bad
company in a gaol.”53
The supplementary penalty of hard labour was said to be a “reasonable and
wholesome” course, less injurious to the prisoner and more beneficial in terms of
cost54.
In all of this, there is no systematic treatment of punishment or any
examination of its purposes and effects. The reliance on tradition and statutes from
medieval times can hardly be said to be conducive to progress. Although this is the
ibid Introduction p 3.
ibid p 10.
50 25 Geo II c 37.
51 Hume : I. xxvii reprint p 553
52 Ibid II. Xvii reprint p 490
53 ibid
54 Ibid p 491
48
49
10
writer who is lauded as the father of Scots criminal law, it can hardly be said that his
influence was a benign one in relation to the sentencing of offenders.
Alison’s Principles and Practice was published in 1833.
By this time, the
influence of the more enlightened was beginning to be felt. The death penalty
remained, but was being slowly abolished for offences other than murder, treason,
spying and, of course, arson in the Queen’s dockyards. Transportation had become
popular55 although banishment had been rendered obsolete56. Flogging (whipping)
remained prevalent in assault cases and could be combined with transportation or a
short period of imprisonment.
Infamy, whereby a convict would be held
untrustworthy and therefore unsuitable for public office, was still current.
Alison deals with imprisonment thus57:
“The most usual punishment in trifling cases, is imprisonment, which is
seldom now made to extend to more than two years, but to which the
addition of solitary confinement for a limited period, or hard labour, or
feeding on bread and water, or abstinence from all spirituous and fermented
liquors, or caution to keep the peace, is frequently added.
…Long imprisonments are justly looked upon with great disapprobation by
the Court, both as tending to destroy the convict’s character, and as imposing
a useless burden upon those charged with the maintenance of prisoners.”
Alison regarded abstinence as important because in those days three quarters of
crime was committed as a direct or indirect result of alcohol consumption, which
remained the “national disgrace of Scotland”58. How then have we advanced from
this deplorable state?
The Modern Era
Has society progressed much beyond the ideas of the 25 year old Beccaria or
is it even still thinking along the lines of Baron Hume? Put another way, does it look
forward by re-assessing what should be done by reference to fresh understandings
of crime and punishment or backwards by pointing to tradition and established
practices as the surest way to the future. To a degree, even if it is not aware of it,
55
This had started shortly after the restructuring of the High Court in 1672; popular
destinations being Barbados and Virginia.
See generally Alison: Practice p 664 et seq; Criminal Law (Scotland) Act 1830 1 Geo IV c 337.
ibid p 673
58 ibid p 674.
11
56
57
society remains bogged down in attempts to resolve the conflict which arises from
competing theories. On the one hand, retributivism, as propounded by Kant59, is
centred on the idea that:
“Punishment by a court… can never be inflicted merely as a means to
promote some other good for the criminal himself or for civil society. It must
always be inflicted upon him only because he has committed a crime. For a
man can never be treated merely as a means to the purposes of another.”60
The punishment must fit the crime. Thus:
“… only the law of retribution (ius talionis) … can specify definitely the
quality and quantity of punishment; all other principles are fluctuating and
unsuited for a sentence of pure and strict justice because extraneous
considerations are mixed into them”61.
This does involve a concept of proportionality, but only relative to the nature of the
crime. Thus, the murderer must be executed because:
“There is no similarity between life, however wretched it may be, and death,
hence no likeness between the crime and the retribution unless death is
carried out upon the wrongdoer…”62.
On the other hand, the torch of Beccaria was taken up in England by Bentham
with his competing theory of utilitarianism63. Punishment, according to this theory,
is justified by reference to the consequences which will flow from it. If no good can
come of the punishment, it ought not to be inflicted at all. It is only if it will deter the
offender or others from re-offending that any punishment ought to be contemplated.
There should be a cost-benefit analysis, which includes measuring the expense of
imprisoning the offender and balancing it against the perceived advantages of his
incarceration64. The rehabilitation of the offender must play a major part in this
consideration.
The Metaphysics of Morals (1797) 140.
A similar approach is taken by Hegel: The Philosophy of Right (1831) para 100; see generally
Easton & Piper: Sentencing and Punishment - The Quest for Justice para 2.5 et seq.
61 ibid 141.
62 ibid 142.
63 Introduction to the Principles of Morals and Legislation (1789) and The Rationale of Punishment
(1830).
64 Easton & Piper (supra) p 109 et seq.
12
59
60
In the modern era, long terms of imprisonment have come to be recognised as
the norm; essentially in place of the death penalty65, transportation66 or short periods
of incarceration coupled with additional corporal punishments or hard labour. They
are accepted by society as the appropriate punishment for serious crimes, despite
their clear lack of utility in some, perhaps many, instances. For the retributivist, the
fact that an offender poses no risk to society is largely beside the point. He must be
punished with a sentence graded according to the nature of the crime which he has
voluntarily committed. Thus, a person committing a minor crime, but whose record
indicates that he is a serious and continuing danger to the public, will receive a
commensurate minor penalty. The opposite would apply under a utilitarian regime.
Conversely, however, that system would come under heavy criticism when a
person, assessed as posing no or little future risk, escapes substantial punishment
having been convicted of a serious crime.
The tension is obvious. Different people, and significantly, different judges
have conflicting views often stemming from their personal experiences, backgrounds
and societal67 views. This tension formed the central point of focus for Professor
Hart in his seminal series of essays68 on the principles of punishment in the late
1950s and early 1960s. As the pre-eminent academic in the field of jurisprudence, he
was continuing to review and critique the validity of the theories of Kant and
Bentham some 200 years after their formulation. The subject is introduced 69 in a
simple and effective way:
“What good comes of criminal punishment? How does it help to make the
world a better place? Criminal punishment, and more generally the criminal
justice system that makes it possible, requires a huge investment of money,
time and energy. It has high costs and many casualties. If the system is to be
justified, there must be compensating benefits. We had better know what
they are and establish whether they are sufficient.”
65
Restricted to murder and treason in 1887.
66
Abolished Penal Servitude Act 1857.
67
ie essentially political.
68
Hart: Punishment and Responsibility: Essays in the Philosophy of Law (1967); The most
influential, The Prolegomenon to the Principles of Punishment was a lecture delivered in October
1959.
69
ibid Gardner in his introduction to the second edition (2008) p xiii.
13
In 1959, when the debates about the continued use of the death penalty were at their
peak, Hart was saying70 that interest in the topic of punishment had never been
greater. At the same time, he doubted whether “the public discussion of it has been
more confused” because of doubts shared about both theories. Hart’s answer to all
of this is just about comprehensible to the intelligent lawyer, perhaps operating at
the extreme edge of his mental capacity.
The answer is first expressed in the
negative. It is not to consider that, instead of “a single value or aim (Deterrence,
Retribution, Reform, or any other)”?, there should be a “plurality of different values
and aims” to justify punishment. Hart continues in a more positive vein by stating71
that:
“What is needed is the realization that different principles (each of which may
in a sense be called a ‘justification’) are relevant at different points in any
morally acceptable account of punishment.”
Thus “the pursuit of one aim may be qualified by or provide an opportunity… for
the pursuit of others”. This is indeed a description of the complexity of punishment.
Where, however, does this take society?
The Quest for Principles
There remains the societal quest for sentencing principles. People, or at least
those involved in criminal justice, naturally want to know what these are. As I have
said elsewhere, at the appellate level, it has not hitherto been the policy of the High
Court to set out general principles applicable for the sentencing of all offenders for
all crimes72. It is not the common practice of first instance judges to attempt to
rationalise a sentence to the appellate court by reference to first principles, even
although some may be mentioned in the course of a public sentencing statement, as
distinct from citing what has occurred in past cases approved at appellate level73.
It is not difficult to enumerate a series of factors or objectives to be taken into
account in sentencing an offender.
This was done in recent times in the first
standard textbook on the subject74 in Scotland. They were: punishment; protection of
70
Hart (2nd ed) Prolegomenon… p 1.
71
ibid p 3.
72
SACRO Annual Lecture 2013 (supra) under reference to Nicholson: Sentencing (2nd ed) p
177.
73
ibid: hence the structure of Morrison: Sentencing see para A1.0002.
74
Nicholson: Sentencing (2nd ed) p 178.
14
the public; deterrence; denunciation; rehabilitation; restitution; economy of
resources; and, finally, reduction of crime. Curiously, given the specific reference to
deterrence, the author did not consider that the courts could influence the incidence
of crime by their sentencing patterns75.
It is also possible to construct a hybrid sentencing model incorporating ideas
from the competing utilitarian and retributive theories. This has been done for,
although not wholly implemented in, the United States76. This model has been
described as “limited retributivism” or “modified just deserts”.
The creator
describes it as follows:
“Limiting retributivism is popular with practitioners, and makes good sense
as a matter of policy, because it strikes an appropriate balance between the
conflicting punishment goals and values that are recognised in almost all
Western countries. The theory accommodates retributive values (especially
the important, human-rights-based need to avoid excessively severe
penalties) along with crime control goals such as deterrence, incapacitation,
rehabilitation, and moral education. The theory also promotes efficiency and
provides sufficient flexibility to incorporate restorative justice programs,
other forms of victim and community participation, and local values and
resource limitations.”
The modelling involves the setting of guidelines for sentencing in an ordinary case
of a particular type, but allowing a significant degree of judicial discretion in
particular circumstances. This approach has taken some root in England.
In England, the retributive dynamic took effect following upon the
Conservative Government’s White Paper in 199077, which promoted the idea that
“better justice” would be achieved if convicted criminals got their “just deserts”; that
is to say that the level or type of sentence should be directly related to the severity of
the crime itself78. This is classic Kant philosophy. It was a departure from the more
benign and optimistic rehabilitative notions of sentencing prevalent in the decades
immediately post war. It was encapsulated in the Criminal Justice Act 1991. After
75
ibid para 9-11.
76
Fraser: Just Sentencing – Principles and Procedures for a Workable System (2013) “limited
retributivism” or “modified just deserts”.
77
Crime, Justice and Protecting the Public.
78
ibid paras 1.5-6.
15
the election of the Labour Government in 1997, further policy documents followed79
and, in 2003, the Sentencing Guidelines Council (later the Sentencing Council) was
created80 as was the ill-fated sentence of Imprisonment for Public Protection (IPP),
promoted by the new actuarial or management school of sentencing
It was the Criminal Justice Act 2003 which set out the purposes of sentencing
adults in England and Wales as:
“(a)
the punishment of offenders,
(b)
the reduction of crime (including its reduction by deterrence),
(c)
the reform and rehabilitation of offenders
(d)
the protection of the public, and
(e)
the making of reparation by offenders to persons affected by their
offences.”
Yet more papers81 were produced. Factors to be taken into account when sentencing
children were prescribed82. These include the prevention of re-offending, the welfare
of the offender and the adult sentencing purposes other than the reduction of crime.
A further change in Government resulted in more policy papers83 and more
legislation84 at the instance of the Conservative led Coalition.
The central feature of the English sentencing regime now appears to be firmly
focussed on the detailed sentencing guidelines produced by the Council.
The
number of Definitive Guidelines now available in England is considerable. They
cover all the most common of crimes, including (in alphabetical order) assaults,
attempted murder, burglary, dangerous dogs, death by dangerous driving, domestic
violence, drugs, environmental crimes, fraud, health and safety, manslaughter,
robbery, sexual offences and theft. There is the immediate benefit of transparency in
that they are all readily available on the internet and, it might be assumed, they will
provide judges, practitioners, offenders, victims and other interested parties with a
79
Halliday Report: Making Punishments Work (2001); Auld Report: Review of the Criminal
Courts (2001); White Paper: Justice for All (2002).
80
Criminal Justice Act 2003 and Coroners and Justice Act 2009.
81
Rebalancing the Criminal Justice System… (2006) and Making Justice Clearer (2006).
82
2003 Act s 142A.
83
Green Paper: Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of
Offenders (2010).
84
Legal Aid, Sentencing and Punishment of Offenders Act 2012.
16
clear view of what might be anticipated. The downside, if it can be called that, is
that they create an impression of a highly mechanised linear process which a
sentencer requires to adopt before arriving at a decision. They often introduce a grid
iron approach, in which the particular offence must be graded in relation to its level
of seriousness; a factor which appears to have particular prominence in English
sentencing practice. The crime requires to be compartmentalised into an offence
category by reference to specified factors. The guideline will then specify a range of
sentences for the particular category, within which the judge can select a particular
penalty having regard to a number of other factors; some relating to the crime and
some to the offender or the victim.
By way of illustration, the guideline for an assault causing grievous bodily
harm stipulates that the sentencer shall go through no fewer than nine steps before
arriving at the sentence. It is the first two steps that are of particular complexity, in
expression if not effect. The first step is to determine whether the offence falls into
one of three categories: (1) greater harm and higher culpability; (2) greater harm and
lower culpability or lesser harm and higher culpability; and (3) lesser harm and
lower culpability.
Greater harm means, in general, serious injury or repeated
assaults on the one, especially vulnerable, victim. Higher culpability is related not
only to whether there was premeditation, the use of a weapon or other similar
feature but also whether it was aggravated in terms of statute by being racially or
religiously motivated or based on the victim’s sexual orientation or disability.
Once the category is established using this method, step two will provide the
sentencing range, in this case: (1) 9-16 years; (2) 5-9 years; and (3) 3-5 years. There is
also a starting point, which, unsurprisingly is the mid-point of the range. Step two
then comes into play. This involves deciding where in the range the case falls by
reference to aggravating and mitigating circumstances. The former include previous
convictions, bail aggravations, the effect on the victim and the consumption of drugs
or alcohol. The latter include remorse, good character, age of the offender and lapse
of time. This will produce a figure in terms of years. So far so good, but there are
seven more stages to go through, mostly statutory in origin, such as (steps 3 and 4)
whether a discount should be given for assisting the authorities or pleading guilty.
Having done this, however, step 5 will send the sentencer in the opposite direction
because it asks him to consider whether, notwithstanding the selection of a
determinate sentence, the “dangerousness” of the offender is such that a life
sentence, IPP or an extended sentence should be imposed. Then (step 6) there is the
17
“totality principle” to be taken into account if the sentence is to run consecutively to
an existing term.
Step 7 requires the court to consider the appropriateness of
compensation. Step 8 is the statutory requirement85 in England to give reasons for,
and to explain the effect of, the sentence. Finally (step 9), the amount of time spent
on remand must be credited.
Similar schemes exist for the various other crimes of greater or lesser
complexity. All of them are descriptions of a mental exercise which a judge ought to
go through in arriving at a final decision.
The description is of a somewhat
ponderous process which, in reality, having heard the Crown and the defence, an
experienced judge will go through almost in a split second. There will no doubt be
some pressure, when the new Sentencing Council for Scotland is established, for
formulating similar guidelines in this jurisdiction. In that regard, approval has
already been given by the High Court86 for judges to have regard, with caution, to
the English guidelines in certain categories of case. Whether the Council will opt for
this system remains to be seen. It may augment transparency, but the downside, as
the Justice Committee has commented87, is that it may have unforeseen
consequences including the wholesale discard of current precedent.
The experience in Scotland has been rather different. The courts had a taste of
things to come in two pieces of legislation. The first was the Convention Rights
(Compliance) (Scotland) Act 2001, which amended section 2 of the Prisoners and
Criminal Proceedings (Scotland) Act 1993 in a manner which meant that the court
required to specify the minimum period which a life prisoner required to serve
before being entitled to apply for parole. This setting of the punishment part was to
be by reference to a construct which required the judge to fix a time period which
would satisfy “the requirements for retribution and deterrence (ignoring the
period… which may be necessary for the protection of the public)”. It is fair to say
that
the
judges,
having
never
previously
engaged
in
this
exercise
of
compartmentalising parts of a sentence, had some difficulty in understanding how
this was to be done. However, here were three purposes of sentencing clearly set
out in statute: retribution, deterrence and public protection.
85
Criminal Justice Act 2003 s 174.
86
eg Gill v Thomson 2010 SCCR 922 (benefit fraud); HM Advocate v Graham 2010 SCCR 641
(child pornography); and HM Advocate v McCourt [2013] HCJAC 114 (causing death by
careless driving).
87
see infra.
18
The second area, in which the Scottish courts have been given statutory
instructions in relation to the purpose of sentencing of offenders generally, is the
High Court’s jurisdiction to impose an Order for Lifelong Restriction for sexual or
violent offences other than murder. The OLR was introduced by the Criminal Justice
(Scotland) Act 200388, following the MacLean Committee’s recommendations89 in
2000. The thinking is the antithesis of the just deserts school of thought. Rather than
making the punishment fit the crime, the sentence is to fit the offender. The crime
may be a relatively minor one, such as theft90 or breach of the peace91, but the penalty
is one of the most serious the court can impose. This is utilitarianism par excellence.
The OLR was intended by the Committee to be imposed for offenders:
“whose offence(s) or antecedents or personal characteristics indicated that
they are likely to present particularly high risks to the safety of the public” 92.
The idea was to impose lifelong control over those “violent and sexual
offenders who present a high and continuing risk to the public”93. The legislation
took a slightly different form. There was no mention of “high” risk in the statutory
test for the imposition of an OLR, albeit that the risk assessor, appointed by the
court, would require to categorise the offender according to whether he posed a
high, medium or low risk. The court must impose an OLR if, having obtained a
detailed, and very expensive, Risk Assessment Report from an accredited risk
assessor, it is satisfied that:
“the nature of, or the circumstances of the commission of, the offence of
which the convicted person has been found guilty either in themselves or as
part of a pattern of behaviour are such as to demonstrate that there is a
likelihood that he, if at liberty, will seriously endanger the lives, or physical or
psychological well-being, of members of the public at large.”94
88
Amending the Criminal Procedure (Scotland) Act 1995.
89
Report of the Committee on Serious Violent and Sexual Offenders (SE/2000/68).
90
eg theft: McFadyen v HM Advocate 2011 SCCR 759.
91
M v HM Advocate 2012 SLT 147.
92
ibid recommendation 1.
93
ibid recommendation 12.
94
Criminal Procedure (Scotland) Act 1995 s 210E; see generally Ferguson v HM Advocate 2014
SLT 431.
19
As with life prisoners, the court requires to fix the determinate “punishment part”,
being the period representing the punishment and deterrent elements, before which
the offender will not be able to apply for parole.
The experience of the OLR has been an interesting one, with few prisoners
subject to the regime being released despite relatively low punishment parts.
Presumably the courts’ assessment of danger in the individual cases has been
endorsed by the Parole Board.
This risk based sentencing is not, of itself, new.
It was behind the
introduction of the short term post release Supervised Release Order 95, which can be
imposed in respect of short term prisoners when the court considers that it is
necessary to protect the public from serious harm. Almost identical considerations
apply to the extended sentence96 for long term prisoners and sexual offenders. In
imposing an OLR, a SRO or an extended sentence, it is clear that the primary
purpose is protection of the public from serious harm. This then is offender, rather
than offence, focused sentencing and it involves different considerations from a just
deserts approach which makes the penalty primarily fit the crime and not the
criminal.
It meets the need, which undoubtedly exists, for the courts to afford
adequate protection to the community against the risk of future serious recidivist
behaviour on the part of an individual offender. In turn that involves concentrating
on methods, including (but by no means exclusively) incarceration, to achieve that
end. This is not preventative detention; at least in the sense of a detention which
does not depend upon conviction of an offence.
So far, challenges under the
European Convention have failed97.
It might be seen, therefore, that the courts were being pulled in two different
directions. The first was towards making the punishment fit the crime and the other
was tailoring the penalty to protect the public. Meantime, in 2006 the Sentencing
Commission for Scotland had recommended, as a useful step to promoting
consistency, that the purposes of sentencing should be enshrined in statute. It stated
that that these were “punishment or retribution, protection of the public or
95
Prisoners and Criminal Proceedings (Scotland) Act 1993 s 14, now Criminal Procedure
(Scotland) Act 1995 s 209.
96
ibid s 210A introduced by the Crime and Disorder Act 1998 s 86.
97
Johnstone v HM Advocate 2012 JC 79 citing M v Germany (2010) 51 EHRR 41; Van
Droogenbroeck v Belgium (1982) 4 EHRR 443; and R (James) v Secretary of State for Justice [2010]
1 AC 553.
20
incapacitation, deterrence and rehabilitation or reform”. In addition, there could be
added “denunciation, reparation, crime reduction and economy of resources”98. The
Criminal Justice and Licensing (Scotland) Bill, as introduced in 2009, contained in its
very first section the same purposes of sentencing as had been established in
England: punishment, reduction in crime (including deterrence), reform and
rehabilitation, public protection and reparation to victims. It stipulated that the
court had to have regard to these purposes when sentencing adults and to certain
other factors including:
“(a)
the seriousness of the offence,
(b)
any information… about the effect of the offence…
(c)
the range of sentences available,
(d)
the desirability of ensuring consistency, and
(e)
any information… about the circumstances and attitude of the
offender.”
The latter would include the offender’s previous convictions, the effect of previous
sentences upon him, the offender’s family circumstances, the level of risk posed and
the offender’s willingness to reform.
There was some institutional resistance to the Government’s proposal,
primarily based on the view that none of this was really necessary. The principles of
sentencing were already well known99 or could easily be ascertained. It is certainly
not too difficult to detect shades of a government apparently being pressed into
attempting to tell the judiciary how to do its job. As outlined above, the courts do
not normally express sentences in terms of dovetailing with stated general
principles. It would be surprising, however, if any judge, sheriff or justice of the
peace did not have regard to the factors which, it was proposed, should be enshrined
in statute. If they failed to do so, the prospects of a successful appeal would loom
large.
98
Sentencing Commission: The Scope to Improve Consistency in Sentencing para 9.5 (its fourth
and final report).
99
The Royal Society of Edinburgh’s view: RSE Advice Paper (09-06), April 2009.
21
Some consultees had suggested other purposes, including the somewhat
nebulous “serving the interests of justice”100 and “denunciation”101. Attention was
drawn102 to the assessment of “seriousness” in England and the setting of the
sentence in accordance with that assessment. The Scottish Consortium on Crime and
Criminal Justice made an interesting, and valid, point103 that the proposed list, which
contained “exactly what is found in similar legislation or in the relevant textbooks in
various jurisdictions” provided “no coherent rationale that a sentencer might
employ when thinking about which principles should apply or have priority in
particular circumstances, or how to choose between different purposes of
punishment or sanctioning that might conflict in certain ways”. The Consortium
advocated “the production of a more just and safer society” as an overarching
principle.
Nevertheless it remained the Scottish Ministers’ intention that:
“the public [have] a much clearer understanding of what sentencing is
actually for and is clear on the key factors that every sentencer must have
regard to when making decisions in individual cases.”104
Whilst not wishing to criticise this as at all inaccurate as a statement of general
application, it does rather tend to describe a somewhat stratified process of
reasoning in which the sentencer scientifically analyses each specific component
before reaching a rational decision in which all the factors have been carefully placed
and appropriately balanced.
This is the hypothesis upon which the English
guidelines proceed. Although it may be what is actually done in the mental process
prior to sentence, especially in the less time-pressured atmosphere of the High
Court, the act of decision making occurs in a moment and, in the sheriff courts
especially, with a speed and frequency which hardly admits such a systematic
logical progression of justification.
The Justice Committee105 concluded:
100
Suggested by the Law Society of Scotland in their written submission to the Justice
Committee.
101
Suggested by the Sheriffs’ Association in their submission.
102
By the Centre for Sentencing Research, Strathclyde University.
103
Justice Committee Report 19 May 2009 Col 1866.
104
Policy Memorandum para 9.
105
Stage 1 Report Session 3 2009 para 34.
22
“…the purposes or principles of sentencing as established by the common
law, are already well understood by the courts. The common law has the
advantage that it can more easily evolve and develop in response to changes
in social attitudes; fixing this common-law understanding in statute carries a
risk of unintended consequences, and may also lose some of the nuances of
case-law jurisprudence”.
The Committee was not satisfied that a sufficiently good case had been made for the
inclusion of sentencing purposes in the Bill. It was concerned about such purposes
inadvertently changing the law. It noted that the proposed section had referred to
the purposes and principles of sentencing, yet only purposes were listed. The
principles of fairness, justice and proportionality had not been mentioned.
The Stage 2 discussion by the Committee produced similar criticisms. The
section was deleted by amendment at that stage and not re-introduced. What did
survive was the creation in the 2010 Act106 of the Sentencing Council which is
entrusted107 with preparing, for approval of the High Court, sentencing guidelines
relating to the principles and purposes of sentencing and sentencing types and
levels. In a sense, therefore, the formulation of these principles has been delegated
to the Council and, if they are formulated, they would require the approval of the
High Court.
The Way Forward
In a democratic European society, the purpose of sentencing is what that
society wants it to be. It can proceed down a retributivist route. England has done
this to an extent with the just deserts approach, exemplified by the grid iron
guidance which has a “sentence fits the crime” starting point. Alternatively, it can
adopt a much more offender based focus such as that when the High Court
determines whether an OLR is appropriate for a person posing an indefinite danger
to the public. Whichever approach is taken, in each there will be balancing elements
taken from the opposing theory. Where consensus is required, a hybrid may well be
the result. That is not to say that compromise is the best way forward.
Whether the purposes of sentencing should be laid down in statute is a matter
for Parliament to determine. It may have the advantage of giving the public a clear
view of the general objectives being pursued. However, on the assumption that the
106
Criminal Justice and Licensing (Scotland) Act 2010 s 1.
107
ibid s 3.
23
purposes when stated are broadly the same as those in the English legislation, or as
formerly proposed in the Bill that led to the 2010 Act in Scotland, listing them will
not be of much practical assistance to the Scottish judge. They will provide only
very limited help to either the offender or the victim in predicting the likely
sentence.
The purposes of sentencing are relatively well known; in the sense that a
number of purposes can be identified in textbooks and legislation. Some do not
assist at all. For example, a statement that a purpose of sentencing is the punishment
of offenders is almost tautological. Some may be in conflict with each other in a
particular case, notably deterrence and reform. It is in this area that real difficulties
arise. No doubt that is why there has been a reluctance on the part of the legislature,
government and the courts to frame any structure involving a prioritisation of
purposes.
It may, in reality, not be possible because of the range of criminal
offences, which spans from murder to parking.
If it were decided that the new Sentencing Council should undertake the task
of proposing priorities in sentencing goals, the result would be likely to involve a
significant change in the substantive law.
The formalisation of a hierarchy of
purposes would alter the current approach, which is that all the various factors
commonly mentioned require to be taken into account, if at all relevant, in the single
sentencing exercise. If one aim were to be given particular prominence, or another
reduced to insignificance, the balance, which some may think is being struck at
present by the extensive use of discretion, would be tilted in a direction which is
different from that currently prevailing.
The introduction of statutorily sanctioned purposes, and especially a
hierarchy of objectives, is likely to be perceived, at least by some, as creating a fresh
start in the judicial sentencing process. The existing sentencing jurisprudence, such
as it is, may be rendered obsolete.
The courts would require to re-think the
sentencing exercise on the basis of the newly created hierarchy of purposes. It is
likely that there would be a substantial number of appeals based upon the failure of
the first instance judge to take a particular factor into account, or to give it due
weight, or upon the judge taking into account some factor which is not on the
prescribed list, or giving it undue weight.
That may or may not be a bad thing. Perhaps the best thing that could
happen is that a new Beccaria will emerge, who will guide us all forward towards
24
the promised land. That country may be one in which, whilst the offender who is
assessed as a continuing danger to the public should be subject to some relatively
restrictive regime of incarceration and/or intense supervision in the community, all
others should be paying back to, and learning in, the community and not removed
from it and put behind the walls and barbed wire that future generations may
regard, as we now do the practices prevalent in Beccaria’s day, as barbaric.
LORD CARLOWAY
Lord Justice Clerk
22 October 2014
25