Posts Tagged ‘ mandatory sentence ’


Sensitive Sentencing

Written by admin
January 6th, 2019

It’s a strange fact of legal life that scant regard is often paid to the wishes of the client at sentence.

For many, of course, sentence is the moment for punishment. To ask somebody what punishment they would like seems paradoxical and indeed it often is.

In other circumstances, it is a question of a court administering some “tough love”, which again might not be top of the defendant’s own wish list.

There are of course those occasions when a court can find itself in real difficulty! Some clients will say in terms that they know that they cannot cope with a particular sort of sentence at a particular point in time, however advantageous that sentence may seem to be. The client who needs to detoxify but knows that he or she can only do it behind bars. The client in a long term dispute with his or her partner or parents, who knows that things cannot change quickly enough under a community order to stop them re-offending. The client who just doesn’t want to be living in the only accommodation that is available to them right now and will do anything to get out of it.

There are times when a court just has to sit back and say on this occasion the client knows best. Where a court imposes its own paternalistic or maternalistic desires it can’t behold that court to then be angry and offended when the inevitable breach proceedings are brought.

Who needs reasonableness!

Written by admin
November 22nd, 2018

We all know that knife crime is on the rise. Not to the levels of Victorian times, not to the levels of 1993, when criminal offences across the board were at their highest. In fact, knife crime is rising towards the levels experienced in 2010 and 2011.

It is obvious that the government wants to “do something”. Legislation imposing vaguely mandatory sentences on those convicted of carrying bladed articles or offensive weapons for a second time has been a future of the sentencing process for many years.

Not satisfied with this removal of discretion from the judiciary, the government now wishes to attack a different part of the criminal justice process.

Certainly, out of nowhere, there are calls for a re-evaluation of the old “stop and search” powers. This much malign and often inflammatory procedure has, in recent years, been kept in check by the requirement for police officers to have a “reasonable suspicion” before stopping or searching an individual. A number of members of the government are now suggesting that the requirement for a “reasonable suspicion” be removed.

Any action that can be carried out unreasonably, or without the use of reason, is obviously likely to lead to concerns and difficulties. Imagine that someone allegedly acting in “self-defence” did not have to show that they had acted “reasonably” just that they had acted in self-defence. What sort of mayhem might ensue?

Where the power to be used “unreasonably” is a coercive power, as in the case of stop and search, the perils for us all are enormous. Those of us who remember the Bristol riots around the Black and White Café, the Brixton riots of the early 1980’s and the Toxteth riot of similar vintage remember just how much violence and disorder ensued from the hatred and loathing that had built up after the misuse of “stop and search” powers.

If widespread civil disorder and a break down in the relationship between the police and the public are the price to be paid for this cack-handed attack on knife crime, it may be felt that the account would soon become unbalanced.

MANDATORY MADNESS

Written by Sian Hall
October 29th, 2017

As the Government chases new headlines for planning to impose mandatory six month terms of imprisonment for those carrying acid in a public place, for the second time we have to reflect on the real worth of this kind of sentence.

 

Mandatory sentencing is often not what it seems. Three years for a third strike burglar often means three years less 20% for those who admit the offences in early stage and can mean a lot less if there are special circumstances relating to there more to the offence.  The same is true for third strike Class A drug dealers.  Those found carrying knives in public for the second time should face a mandatory sentence of six months, but in reality this is a sentence that can be reduced to meet the justice of the case, depending on the circumstances of the offence or the client.   Presumably, acid carriers are likely to find themselves in the same position as their knife-wielding brethren.

 

Does the mandatory sentence then serve any real purpose? Are there any mandatory sentences that are not regularly devalued?   The argument must of course run that it is hard for governments to send out a message to members of the public who are likely to offend.  The announcement of six months in a prison for anybody committing a certain offence is an easy message that may well get across to more than most.  Of course,  the mandatory term also provides a thinking point for sentencing courts who might otherwise find themselves in a sea of inconsistency.  Nevertheless, the same sort of thinking point has been established for many offences by the Sentencing Guidelines Council, whose guidelines can be varied dependant on the social and legal landscape, without recourse to legislation.

 

It is worth reflecting that over the years the only two sentences that have remained largely unadulterated are life imprisonment for murderers and the mandatory driving ban for drink drivers. Odd bookends for a growing shelf of non-discretionary sentencing decisions.

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