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Preventive Sentencing

Part of the Palgrave Studies in Risk, Crime and Society book series (PSRCS)

Abstract

This chapter explores the current sentencing framework for sex offenders in England and Wales: not only the rules for the imposition of indeterminate and determinate custodial sentences, but also the use of Sexual Harm Prevention Orders (SHPOs) and other preventive orders which attempt to control future activities by offenders. It then looks briefly at release and recall rules, and the ‘management’ of sexual offenders in the community in order to question the legitimacy of some current practices. The chapter points out that current priorities which focus on preventive sentencing, the protection of the public and the management of risk allow questions of justice and proportionality to be too easily ignored. Restrictive, preventive, sentences require careful justification in individual cases.

Keywords

  • Preventive sentencing
  • Risk
  • Ancillary orders

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Notes

  1. 1.

    The main legal practitioners’ text on the law of sexual offences is Rook and Ward (2016).

  2. 2.

    Ministry of Justice (2016) Criminal Justice Statistics: Quarterly Update to June 2016, at page 21.

  3. 3.

    A useful term, borrowed from Crewe (2011), to explain the ‘pains’ of imprisonment.

  4. 4.

    Ministry of Justice (2016) Criminal Justice Statistics: Quarterly Update to June 2016, Table 5.2c.

  5. 5.

    MAPPA is discussed later in this chapter.

  6. 6.

    See Padfield (2016a) for more details.

  7. 7.

    A predecessor was ‘automatic life’, introduced in s. 2 of the Crime (Sentences) Act 1997 for anyone convicted of a second serious offence, unless there were exceptional circumstances which permitted the court not to take that course. Section 2 was replaced by s. 109 of the Powers of Criminal Courts (Sentencing) Act 2000. The sentence was reduced in scope after the implementation of the Human Rights Act 1998, and abolished by the Criminal Justice Act 2003.

  8. 8.

    The list, to be found in a new Schedule 15B to CJA 2003 introduced by Schedule 18 of LASPOA 2012, includes, it should be noted, offences that do not result in life as their normal statutory maximum.

  9. 9.

    See (1967) 52 Cr App R 113; these criteria have been developed in many cases: for example, Wilkinson (1983) 5 Cr App R (S) 105, Attorney General’s Reference No. 32 of 1996 (Whittaker) [1997] 1 Cr App R(S) 261; Chapman [2000] 1 Cr App R 77.

  10. 10.

    My examples are selected by searching on westlaw (which is one of the leading online legal research services in the UK, providing access to cases, legislation, journals, etc.), and they are fairly random. However, I have included what might be considered the more important appellate judgements.

  11. 11.

    The case raises important questions, to which we will return, about why she was not made aware of his record: he was on the sex offenders register, after all.

  12. 12.

    With any life sentence, including Imprisonment for Public Protection (IPP), the judge is required to specify a minimum period before which there is no eligibility for parole. He or she must identify what the hypothetical determinate or ‘commensurate’ sentence for the offence would have been, calculated purely by reference to the gravity of the offence and the culpability of the offender, without consideration of future risk. The minimum term is then half of that term (because the hypothetical prisoner sentenced to a determinate sentence serves only half of his or her term in prison and the second half on licence).

  13. 13.

    An offender was dangerous if the court assessed that there was ‘a significant risk to members of the public of serious harm occasioned by him of further specified offences’.

  14. 14.

    The only difference is that, whereas a lifer is on licence for life, an ex-offender serving an IPP can apply to have his or her licence conditions removed after ten years in the community. This has not yet happened.

  15. 15.

    The main guidance on the application of IPP in its early days was R v. Lang [2005] EWCA Crim 2864; [2006] 2 Cr App R (S) 3.

  16. 16.

    Only one of the other appellants had been convicted of a sexual offence: rape as a sixteen-year-old. My examples are all adult offenders.

  17. 17.

    Sexual Offences Prevention Order: see the next section of this chapter.

  18. 18.

    https://www.sentencingcouncil.org.uk/about-sentencing/types-of-sentence/extended-sentences/.

  19. 19.

    Offender Management Statistics Bulletin, England and Wales Quarterly, April to June 2016; with prison population as at 30 September 2016.

  20. 20.

    Three seven-year terms for causing or inciting sexual activity with a child, sexual activity with a child and sexual assault of a child under thirteen were each reduced to five years, to run consecutively to each other and to a twelve-month term for making an indecent photograph. For criticism of the complexity of the extended sentence provisions, and of the Court of Appeal’s logic in this case, see Padfield (2015).

  21. 21.

    See, for example, C [2007] 2 Cr App R(S) 98; Francis and Lawrence [2014] EWCA Crim 631; DJ [2015] EWCA Crim 563.

  22. 22.

    See the guidance of the Sentencing Council in its Magistrates Court Sentencing Guideline, available at: https://www.sentencingcouncil.org.uk/explanatory-material/item/ancillary-orders/22-sexual-harm-prevention-orders/#.

  23. 23.

    See the Sexual Offences Act 2003 (Remedial) Order 2012.

  24. 24.

    C [2011] EWCA Crim 1872; Attorney General’s Reference (No. 18 of 2011) [2011] EWCA Crim 1300, and so on.

  25. 25.

    Ministry of Justice (2016) Multi-Agency Public Protection Arrangements Annual Report 2015/16.

  26. 26.

    Ministry of Justice Statistics Bulletin, page 14.

  27. 27.

    Under s. 10 of the Prevention of Crime Act 1908.

  28. 28.

    Under the Criminal Justice Act 1991. See Ashworth and Zedner (2014) for a fascinating history of preventive sentencing.

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Padfield, N. (2017). Preventive Sentencing. In: McCartan, K., Kemshall, H. (eds) Contemporary Sex Offender Risk Management, Volume I. Palgrave Studies in Risk, Crime and Society. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-63567-5_4

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