In this chapter I am going to argue that a proportionate approach to sentencing is crucial to the communicative theory of punishment and also that this has a direct bearing on the punishment of dangerous offenders. I will outline what proportionate sentencing means, its place within theories of punishment and how it supports the fair and just punishment of dangerous offenders. I will argue that the communicative theory of punishment has to be committed to the principle of proportionate sentencing and that this has a fundamental impact on how communicative theories of punishment approach the sentencing of
dangerous offenders. I will also argue that proportionality in sentencing has a central role to play in the practical application of criminal justice policy in contrast to the imposition of indeterminate sentences, such as those seen in the previous chapter through legislation such as the Criminal Justice Act 2003.
5.1 Proportionate sentencing and its place in UK criminal justice policy Proportionate sentencing is a familiar idea in theories of punishment and in criminal justice policy across the UK and the US. In 1990s the criminal justice system in England and Wales shifted in favour of a proportionate approach to sentencing placing the idea at the heart of the principles underpinning the guidelines for sentences. Since this time, however, there has been a slow erosion of these principles through subsequent legislation, such as the Criminal Justice Act 2003. The aim of that legislation appeared to be to increase the severity of
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sentences for offenders that were considered to be dangerous in an attempt to prevent crime rather than adhere to the principle of proportionality.
In 2010 the Sentencing Council for England and Wales was created, replacing the Sentencing Guidelines Council and the Sentencing Advisory Panel, with the aim of improving consistency and transparency of sentencing. The role of the Sentencing Council is to provide guidance to the courts in relation to sentencing. The expectation is that these guidelines will be followed, unless it can be shown that it is in the interests of justice not to do so. As part of its core function the Sentencing Council outlines what it sees as the main aims of
sentencing and the principles by which sentences should be issued. The Council states that:
A Sentence aims to:
Punish the offender
Punishment can include being jailed, having to do unpaid work in the community, obeying a curfew, or paying a fine.
Reduce crime
This means both preventing the offender from committing more crime and putting others off from committing similar offences.
Reform and rehabilitate offenders
A sentence also aims to change and offender’s behaviour to prevent future crime. One way of doing this could be to require an offender to have treatment for drug addiction or alcohol abuse.
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A sentence aims to keep the public safe from the offender and from the risk of more crimes being committed by them. This could be by putting them in prison,
restrictions on their activities or supervision by probation.
Making the offender give something back to people affected by the crime
This could be for example, by payment of compensation or through restorative justice. (The Sentencing Council for England and Wales)
These principles were underpinned by legislation in the Criminal Justice Act 2003. (The Criminal Justice Act 2003, 44, section 142)
The first aim of the sentencing principles, as articulated by the Sentencing Council is to punish the offender. This aim is consistent with the view that the punishment must be for a crime, and this punishment is what the offender deserves as an appropriate response to the wrong that has been done. As one moves down the list of the principles it can be seen that the focus of sentencing shifts towards the prevention of crime. The second bullet is explicit in saying that crime reduction is a key aim of punishment, both in preventing the specific offender from committing more crimes (individual deterrence) and putting other potential offenders off committing similar offences (general deterrence). The fourth bullet point states that an aim of sentencing is to protect the public from offenders and the risk of more crimes being committed by the offender; crime prevented through incapacitation or through other restrictive sentencing approaches, such as tagging or curfews. Having crime reduction as a central focus of sentencing is more usually associated with a consequentialist approach to punishment, as I outlined in the opening chapter of this thesis, however many theories state that punishment can partially be justified due to its preventative efficacy. Andrew von Hirsch’s communicative theory of punishment justifies the use of hard
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treatment, punishment which involves an element of suffering, because it can reduce crime, although he is at pains to stress that this is not the main justification of punishment and should not drown out the communicative impact of punishment. (Von Hirsch, 1993 p12-13)
It seems that the five aims of sentencing as set out by the Sentencing Council are attempting to cover the broad range of possible justifications for punishment and aims of sentencing, also citing rehabilitation and a restorative element to sentences in addition to retribution and crime prevention. It seems that the Sentencing Council, in trying to set out these wide ranging principles are overly ambitious and create a potentially confusing starting point for the principles by which punishments are decided.
Many theories of punishment could take proportionality of sentencing into account, but could see proportionality as only one of a number of factors that should be taken into account when sentencing. The Sentencing Council guidelines however, do not make it clear whether proportionality is a defining principle of sentencing or if is one of a number of principles that need to be considered when a court passes sentence. As I will come on to explain, communicative theories of punishment must have proportionality as a defining feature of sentencing, rather than, as with the Sentencing Council guidelines, merely have proportionality as one factor, amongst many others.