Ralph J Henham - Sentence Discounts and the Criminal Process

Sentence Discounts and the Criminal Process

RALPH J. HENHAM

Professor of Criminal Justice

Nottingham Law School

Nottingham Trent University

First published 2001 by Dartmouth Publishing Company and Ashgate Publishing

Reissued 2018 by Routledge

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Copyright Ralph J. Henham 2001

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ISBN 13: 978-1-138-70213-4 (hbk)

ISBN 13: 978-1-315-20982-1 (ebk)

Contents

List of Tables

Children and Young Persons Act 1933

S53(2)

Crime and Disorder Act 1998

S80

S81

Criminal Justice Act 1988

S41

Criminal Justice Act 1991

S2(2)(b)

S3(3)(a)

S11

S18(3)

S18(5)

S28(1)

Criminal Justice Act 1993

S65(1)

Criminal Justice and Public Order Act 1994

S48(1)(a)

S48(1)(b)

S48(2)

S48(3)

Criminal Procedure and Investigations Act 1996

S49

Crime (Sentences) Act 1997

S2

S3

S4

, Sch. 4, para 17, Part II

Human Rights Act 1998

Magistrates Courts Act 1980

S38

Offences against the Person Act 1861

S18

S20

Sentencing Reform Act 1984 (USA)

A and B (1999) 1 Cr. App. R. (S) 52, (1998) The Times, 1 May

Akbar (1993) The Times, 29 September

Atkinson (1978) 67 Cr. App. R. 200

Billam (1986) 8 Cr. App. R (S) 48

Buffrey (1993) 14 Cr. App. R. (S) 51, [1993] Crim. L.R. 319

Cain [1976] Crim. L.R. 464

Carroll (1994) 16 Cr. App. R. (S) 488

Costen (1989) 11 Cr. App. R. (S) 182

Cox (1993) Cr. App. R. (S) 479, [1993] Crim. L.R. 152.

Fearon (1996) 2 Cr. App. R. (S) 25, [1996] Crim. L.R. 213

Godber (1986) 8 Cr. App. R. (S) 460

Hastings (1996) 1 Cr. App. R. (S) 167

Hollington and Emmens (1985) 7 Cr. App. R. (S) 364

Landy (1995) 16 Cr. App. R. (S) 908

Newton (1982) 4 Cr. App. R. (S) 388

Practice Direction [1976] Crim. L.R. 561

Practice Direction (Magistrates Courts : The Role of the Clerk) [1981] 1 WLR 1163

Practice Direction (Plea and Directions Hearings) [1995] 1 WLR 1318

Practice Direction (Custodial Sentences) (1998) 1 Cr. App. R. 397

Rafferty (1998) 2 Cr. App. R. (S) 449, [1998] Crim. L.R. 433

Sharkey and Daniels (1994) 16 Cr. App. R. (S) 254, [1994] Crim. L.R. 866

Turner [1970] 2 WLR 1093

Young [1990] V R 951

The purpose of this book is to present in a single volume accounts of two recent empirical investigations made by the author into the operation of the practice of rewarding guilty pleas with sentence discounts in the Crown Court and Magistrates Courts. The main focus of the research was on the nature and extent of judicial and magisterial compliance with the provisions of Section 48 of the Criminal Justice and Public Order Act 1994 which imposed a statutory framework on a practice which had hitherto developed exponentially according to judicial discretion and appellate guidance. In addition to focusing on those variables which impact on the sentence discount decision, the research examined the relative use made of sentence discounts and the nature and relevance of Court of Appeal guidance. The book also deals with some important theoretical issues relating to sentencing research and contains some comparative analysis dealing with the impact of comparable practices in the United States. The implications for sentencing policy and practice are addressed and suggestions for reform made where appropriate. The law is as stated in July 2000.

Ralph Henham

Nottingham

July 2000

I would like to thank the Research Secretariat, Lord Chancellors Department and the Court Managers of the participating Crown Courts for facilitating the Crown Court project. I also wish to acknowledge the invaluable help of the Clerks to the Justices for Leicester and Nottingham Magistrates Courts for facilitating the magistrates courts study and the magistrates who took part. The projects were funded by a grant from the Research Enhancement Fund, Nottingham Trent University.

As always I owe an enormous debt of gratitude to my family for their continued support and encouragement.

I have used, with substantial revision and addition material from the following articles previously published by me:-

Bargain Justice or Justice Denied?: Sentence Discounts and the Criminal Process (1999) Modem Law Review, Vol. 62, p. 515.

Reconciling Process and Policy: Sentence Discounts in the Magistrates Courts (2000) Criminal Law Review, Vol. 47, p. 436.

Truth in Plea Bargaining: Anglo-American Approaches to the Use of Guilty Plea Discounts at the Sentencing Stage (2000) Anglo-American Law Review, Vol. 29, .

The concept of the sentence discount in return for a guilty plea has long provoked controversy between due process and crime control advocates alike. One fundamental due process objection to sentence discounts is that they undermine the presumption of innocence and the necessity for the prosecution to prove its case.1 A further objection lies in what may be termed the so-called trial penalty, or the perception that an unjustifiable difference in sentence severity exists between the sentence which follows a guilty plea and that which would be imposed if the offender were to plead not guilty and be convicted following a trial.2 The legal position appears unequivocal in that it has been stated on several occasions by the Court of Appeal (Criminal Division) that, whilst a guilty plea may be treated as a mitigating factor indicating remorse justifying a sentence below the level appropriate to the offence, a person exercising his right to plead not guilty should not be penalised by the imposition of a sentence above the ceiling fixed by the gravity of the offence (Thomas, 1979, p.50).

Despite this, research studies provide incontrovertible evidence of significant variation in average sentence lengths according to plea for offenders receiving custodial sentences. For example, Moxons (1988, p.33) study of Crown Court sentencing practices covering 2,077 offenders sentenced at 18 Crown Court centres noted that over the 8 month period from June 1986 to February 1987, the average sentence length for those pleading not guilty was 23.2 months as compared with 18.2 months for offenders pleading guilty. However, Moxon was careful to acknowledge the complexity of the relationship between plea and sentence and, in particular the greater average weight of mitigation in cases where the defendant pleaded guilty (1988, p.32). Moxons research also followed up earlier work by McConville and Baldwin (1981,