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The aim of this first chapter is to outline sentencing practice and procedure in England and Wales from the 1980's until 2003 both generally and regarding custodial sentences of 0-12 months in length. It will provide an overview of how the current themes of sentencing have got to where they are today, setting the scene for chapter 2.
The Halliday Report  and Patrick Carter's 'managing offenders reducing crime'  paper will be explored in this section when thinking about the use of short term sentencing, their evaluations of the system will be looked at with reference to changes that have occurred leading to present day practice.
Sentencing gives way for good order in society and public satisfaction is a goal that is important when setting out sentencing frameworks, societies norms and values can be tested by the criminal justice system and sentencing is a fundamental part that can contribute to satisfaction  .
1.2 History of sentencing 1980-1997
During the 1980's the government began to consider the sentencing system more seriously, they began to discuss punishment and prison differently  , A Green Paper was published under the then Home Secretary Douglas Hurd in 1988 and this stated that 'imprisonment is not the most effective punishment for most crime, custody should be reserved for very serious offences, especially when the offender is violent and a continuing risk to the public'  . The governments White paper published in 1990 detailed factors to do with imprisonment that were disadvantageous to offenders in that while they are in prison it is a very dependant lifestyle and can sometimes be 'crime-productive'  . This White Paper detailed objectives to reserve custody for the more serious offences, however the drafting in the resulting 1991act proved to be less clear  .
The following introduction of the Criminal Justice act 1991 aimed to bring about proportionality in sentencing and was the first attempt in over 40 years at introducing a sentencing structure that was understandable  . After the introduction of this act there was, described by Cavadino and Dignan  a 'backlash' from the public and the judiciary towards some of the aspects of the act itself, as mentioned before the drafting of the act was somewhat unclear compared to the details in the White Paper. Amendments were prepared and added to the Criminal Justice Act 1993 to reverse some of the effects that the previous act had had upon the judiciary and the public's confidence.
After those changes to the 1991 act were implemented in 1993 and after the numerous calls for a lesser use of custodial sentences there then came a claim from the then Home Secretary Michael Howard that 'prison works'  . This statement resulted in an increase in the use of custodial sentences and a renouncement of the principles set out in the 1991 act. Government policy and custodial sentencing practice had over these years been turned on its head so many times as a result of restructuring due to public demand and comments by politicians.
1.3 History of Sentencing 1997 - 2003
When new labour came into power in 1997 their well known slogan was 'tough on crime and tough on the causes of crime'  , it seemed as though custodial sentencing from this point was the way forward in the new governments crack down on crime as many labour representatives over the following years were seen to be more sympathetic to the calls for tougher sentencing and imprisonment  that followed the 'prison works' statement from the Home Secretary. It seems to be a pattern that despite the many calls for a lesser use of imprisonment each ensuing act or piece of legislation fails to take on the gravity of these requests.
John Halliday set out to produce a review on the state of sentencing in England and Wales, his report was published in 2001  and contained within a number of recommendations for change, the Halliday report is important within the context of this piece of work as much of his report focused on the increasing use of custody and the problems with this.
Within the executive summary at paragraph 0.2 Halliday talks of the 'unclear and unpredictable approach to persistent offenders'  , he goes on to state that those receiving 0-12 month custodial sentences are not receiving any meaningful intervention into their criminal careers. Halliday put forward a notion that there have been great grounds for reform since the Criminal Justice Act 1991, and the need for research into how, if at all, custodial sentences can indeed deter offenders through the process of incapacitation.
He discusses many sentencing principles and talks of proportionality in the context that the severity of a sentence should be proportionate to the seriousness of the offence and that this should give way to custodial sentences being reserved for those cases in which 'no other sentence is severe enough'  . John Halliday continued throughout his report to reiterate problems highlighted previously, that most receiving short term custodial sentences are those who are persistent offenders for whom a spell in prison will not at all affect them or persuade them to desist from criminal careers.
Halliday seems to feel that 'Short prison sentences have in recent years come to play an increasing part in penal policy'  the reasons for this may be wide ranging but it is the view of both Halliday and Cavadino and Dignan that this is the case 'largely because of choices made by sentencers, mainly magistrates...so inclined by their sentencing culture....have a long-standing and indeed intensifying love affair with custody' 
The report by John Halliday almost sets the scene for this piece of writing, when thinking that the review is now almost 10 years old, where have we come? Have things changed? Do we need to make more radical changes? This will be explored in subsequent chapters.
1.3.2 'Justice For All'
After the Halliday report was published the Government published a White Paper titled 'Justice For All'  , this looked at all issues throughout the Criminal Justice System with chapter 5 of the paper focussing on 'Putting the Sense Back Into Sentencing'. The section of this chapter titled 'What is not working' highlighted the extreme cases of sentencing variation across the country, it is said that 'decisions are often made not on the basis of binding riles and principles but rather according to the intuitive sentiments of sentencers'  . The White Paper in following one of John Halliday's recommendations intended to create a Sentencing Guidance Council alongside the Sentencing Advisory Panel that would tackle this 'unacceptable sentencing variation'  . After the Halliday Report and the introduction of the Criminal Justice Act 2003, the Sentencing Guidelines Council was created  . The Sentencing Advisory Panel borne out of the Crime and Disorder Act 1998 also continued to function and sections 169-173 of the 2003 act detail the duties of the courts in following the guidelines set out by the panel.
The guidelines council and its website provide comprehensive guidelines for courts when sentencing different offences, however, the rhetoric here seems to be the same as many others when dealing with short term offences. 'In view of the dangerous overcrowding of prisons, where a sentence of imprisonment is necessary, it should be as short as possible, consistent with public protection and the punishment and deterrence of the offender'  . There seems to be no understanding or account for the fact that short term sentences are more detrimental for some offenders and the shorter they are the more detrimental of an effect they have on that offenders life and possible rehabilitation.
Sentencing guidelines in general will be focused on more during chapter 2 when looking at what is available to sentencers today and how they may or may not affect the short term custodial sentences in question.
1.3.3 Criminal Justice Act 2003
After all the calls for a reduction in the use of imprisonment over the years and their lack of effect on the sentencing in England and Wales, the Home Secretary and Lord Chancellor in 2002 issued a joint statement yet again calling for the use of imprisonment to be used only for those violent, sexual and seriously persistent offenders  . The Criminal Justice Act 2003 is described as having a purpose to 'reduce crime and re-offending by updating the Criminal Justice System'  .
The Criminal Justice Act 2003 set out to reaffirm the importance of proportionality by offering the purposes and principles of sentencing on a statutory footing for the first time in legislation history  . Large parts of the Criminal Justice Act 1991 were replaced by this act which now offers a variety of ways of structuring sentences  . The fundamental principles are listed in section 142 (1) of the Criminal Justice Act 2003 and contain no less than five sentencing purposes that the courts must consider, these are, Punishment, Deterrence, Rehabilitation, Reparation and Public Protection.
As this section of the act has so many provisions that the court is demanded to take into consideration, it may automatically bring about room for sentencers to again, set their own priorities  . Bagaric describes a view that judges can sometimes be seen to be very reluctant to allow any restrictions being imposed on their sentencing discretion  , section 142 of the Criminal Justice Act 2003 seems to support this.
Questions that need to be asked when looking at section 142 (1) in particular of the Criminal Justice act 2003 are, can these sentencing principles be fulfilled with a short term sentence? John Halliday in his review on sentencing in England and Wales was explicit when stating that sentencing principles needed to be just and fitting with the circumstances of individual cases, thus delivering fair justice  . It may be then fair to argue that the Criminal Justice Act 2003 and section 142 (1) therein does not allow for this as punishment, deterrence, rehabilitation, protection of the public and reparation are all principles that the 2003 act wishes judges and magistrates to take into account when issuing sentences in each case.
It seems very unlikely that all if any of these principles could be achieved with a short term sentence, obviously individual cases are all different however, to fulfil no less than five ideals is very unlikely, as stated by Ashworth and Player, 'these purposes may conflict in their application in any case'  . It is argued by Carreno-Aguado that a modern system of sentencing needs to distinguish between and make differences in sentencing those types of offenders who pose a serious threat of harm to the public and those who do not  .
When thinking about short term sentences that are issued it begs the question that if a non-violent offender is serving a short term sentence then how are issues of rehabilitation to be addressed? It is understandable that deterrence could be a purpose but then questions are equally raised on factors to do with deterrent sentences and their effects. It has been and will continue to be widely stated throughout this piece of writing that short term sentences of 0-12 months in custody do nothing to help offenders out of cycles of reoffending and give little public protection, the Criminal Justice Act 2003 when referring to these points is seen by some to have done little to address these problems  . Section 152 (2) of the act however, does state that courts should not pass a custodial sentence unless it is 'of the opinion that the offence....was so serious that neither a fine alone nor a community sentence can be justified for the offence', it is believed that this statement in legislation alone will not be enough to change a whole system and culture of sentencing.
1.3.4 Patrick Carter
After the Halliday report Patrick Carter too was drafted to put together a report on 'making punishments work'  .
In reference to short term sentencing and Carters thoughts on this, he found that there was a significant increase in the use of custodial sentences for those first time offenders and this increased severity had little if no effect on deterring those offenders  . He believed that custodial sentence should be reserved for those dangerous and persistent offenders and low-risk offenders would be dealt with more effectively out in the community. He also most poignantly stated that 'given the current level of the prison population there is no convincing evidence that further increased in the custody rate...will significantly reduce crime'  .
In light of these recommendations and view on the system of sentencing, when looking at the sentencing statistics of the years following the report it is clear that there was an initial general increase in the use of custodial sentences in 2004, however the use of fines also increased as did the use of community sentences  . Comparing these to the general broad findings of the British Crime Survey  (BCS) it suggests that an increase in crime alone cannot be held responsible for this increase in sentencing as all BCS crime has been steadily falling since 1995. This is appreciated to be just a passing remark when it comes to statistics and how different government papers and review have affected sentencing, the statistics from 2008 will be explored in more depth within the next chapter.
Carter's report focused on many points another being the reduced use of fines by courts. Carter claimed that fines were an effective form of punishment if used appropriately and that fines should become more of a first choice for sentencers when dealing with low risk offenders  . This is a point that must be contested within this piece of work, as it appears a lot of generalisation is being undertaken by policy makers and those who review policy such as Patrick Carter. It is agreed that fines in some cases are appropriate and may well account for the end in some criminal careers, however many offenders will not respond and simply giving them a fine will be severely detrimental and will do nothing to address their offending behaviour.
One point to be addressed before concluding this section is how Carter addressed the issues involving the running of the prison service and the probation service. He introduced the idea of a nationally run system covering both departments by stating that the introduction of a National Offender Management Service would break down the barriers and ensure a more effective management of offenders 'end-to-end'  .
We have seen throughout this chapter and in the many reports and reviews that an increased call for a lesser use of custodial sentencing has in most cases fallen on deaf ears. Sentencing in England and Wales 1980's to 2003 has been described by many as unstructured and disproportionate  . Bottoms, Rex and Robinson  describe this trend in sentencing as disadvantageous yet it has characterised the system.
It will be interesting to review both the Halliday review and the Carter report have affected sentencing in the last 7 years in the following chapter which focuses on sentencing 2003 to the present day.