As with previous editions of this guide, the aim is to provide a reasonably comprehensive outline of the relatively esoteric business of enforcing community orders and allied provisions for statutory supervision of offenders. I am still not aware of any comparable work on the market. Most legal practitioners' textbooks do only scant justice to the enforcement of community - sentences and are usually too technical or too general to be readily accessible to social workers and probation officers. Court clerks often have a somewhat hazy grasp of the relevant provisions which play a relatively small part in their daily tasks and tend frequently to look to court duty officers to have the answers to unexpected questions.
In the second edition, the text was expanded to incorporate not only developments in the law and relevant research but also to address enforcement in a wider sense, to provide a more comprehensive coverage of the enforcement of court orders beyond the direct responsibilities of probation officers and social workers, particularly in regard to the enforcement of financial penalties. At the same time, a couple of topics which found a convenient but not necessarily logical home in the first edition were removed and will live on in a sister volume, A Companion Guide to Sentencing, currently in press.
It may seem that this third edition has been produced with indecent haste, only a year after the previous edition, but this has been necessary - to incorporate the changes effected by the Crime and Disorder Act 1998. This important statute introduced not only a new set of community sentences but major changes to the early release provisions of CJA 1991 and also amended Schedule Two of that Act in various significant ways. These could be addressed only cursorily at Bill stage in the 1998 edition. The restless tide of change means that there is never an ideal time to stop the updating process and as we go to press the third version of National Standards which will doubtless make tighten enforcement boundaries (in particular, a reduction in the maximum number of non-compliances before court action from two to one) is still awaited. The new referral order is outlined even though the Youth Justice and Criminal Evidence Act 1999 awaits commencement and piloting. It has also been possible to incorporate the important procedural changes introduced in the Access to Justice Act 1999.
The mantle of prosecutor still fits somewhat uneasily on the shoulders of probation officers and social workers who may temperamentally align themselves more readily with defence minded considerations or the neutral role of adviser to sentencers. However, the era described by Colin Lawson in The Probation Officer as Prosecutor (1978), when breach proceedings were few and far between, is long gone and though it is not my intention to overstate the place of a sound legal knowledge base, it is nevertheless important for every practitioner to have a working grasp of the legal context in which we supervise and help offenders. This book may serve to boost the readers' confidence and help them both to `get it right' and to treat offenders fairly and with proper regard to due process of law.
The importance now placed by the Home Office on rigorous enforcement practice has been heightened in recent months. A report by the Select Committee on Home Affairs (1998) noted the following average compliance rate in taking breach action on or before a third unacceptable failure (as a proportion of cases with a third such failure) for Probation Services subject to Q&E Inspection in 1997: probation orders: 28%; CSOs: 56%. The Committee commented (para.87):
'Strict enforcement of community- sentences is vital if they- are to represent a creditable alternative to prison and retain the confidence of sentencers and the public. If community sentences are be credible they must be enforced stringently. It is therefore unacceptable that local probation services are, on average, taking breach action in accordance with National Standards relating to probation orders in barely a quarter of cases.'
Not only did the Committee recommend that the Home Office should set a minimum target for service compliance, with annual monitoring and publication of comparative performance, with allied financial incentives and sanctions, it advocated that additional powers should be given to courts in punishing breach of community orders as a 'short, sharp reminder': `the imposition of further conditions, the requirement to reside in a hostel, tagging and curfew, or even a short period of imprisonment - eg a week - after which the community sentence would resume': para.96. It also favoured greater powers on revocation, including power of imprisonment even if the offence for which the order was imposed is non-imprisonable, and by introducing a new imprisonable criminal offence of failing to comply with a community sentence (a measure for which the Home Office could see no justification).
In PC 3/1999: Enforcement the Home Office has emphasised :Ministers' wish `to see early and significant improvements in performance', believing that the private sector responsible for the electronic monitoring of curfew orders is showing a clearer commitment, communicating a more unambiguous message to offenders and thus achieving better compliance rates. The Circular thus proposed a range of good practice improvements likely to enhance enforcement, including:
• prompt administrative action, beyond warnings, to tackle poor conduct;
• greater support for offenders in overcoming practical problems in keeping to their commitments, such as child care support;
• issuing first warning letters on yellow paper and final warnings on red paper, in hope of having greater impact on recipients;
• use of specialist enforcement staff, more familiar with court procedures and able to maintain a higher quality of presentation;
• clearer procedures for issue of summons;
•arrangements allowing breach cases to be listed for hearing more speedily and efficiently; • adopting curfew as a breach penalty via revocation and re-sentence.
These suggestions contain much good sense, certainly more so than the rather ill-thought through suggestion from the Secretary of State for Social Security in early 1999 that offender claimants should forfeit their Benefit rights in the event of failure to comply with their supervisory commitments.
Working part-time until Autumn 1997 as a liaison probation officer in magistrates' courts and the Crown Court, I was all too aware that there are not neat answers to every problem and that there remains considerable scope for local tradition, variation and canny resort to pragmatic procedural flexibility. Many areas of statutory ambiguity remain, as yet uninterpreted by the Court of Appeal, and in the nature of things are likely to remain so. I certainly do not offer a guarantee that all the answers can be found within these pages, but I hope that the contents do at least provide the best and handiest reference book around without constant recourse to a mobile library of Acts, manuals and law reports. There are bound to be errors and omissions and I would be grateful for the constructive criticism and comments of readers so that these can be rectified in any future editions. My thanks are due to all the colleagues who have raised various legal queries and thorny problems from their own enforcement practice, either at training courses or by letter/telephone, sometimes out of the blue. Keep them coming.
Nigel StoneMore Details on the Shaw & Sons Website
A Companion Guide to Sentencing Part One
Part One: Specific Offences,
This text reflects the need of criminal justice practitioners who advise sentencers and offenders to have ready access to the law of sentencing and, in particular, to the approach of the Court of Appeal in weighing an offender's culpability in the light of aggravating and mitigating features of the crime in question.
The first of two books on sentencing law, principles and practice, Specific Offences details all the common offences likely to be encountered by pre-sentence report writers, from arson to unlawful sexual Intercourse, identifying the statutory powers of punishment, the guideline judgments, illustrations of recent judicial approaches to offence analysis, relevant Magistrates' Association guidance, etc The reader is guided in assessing the seriousness in any particular case, together with the factors contributing to the type and length of sentence
A special chapter explains the kind of factors that can count as personal mitigation.
As a probation officer working in a city courts team who was also involved in the training of probation students, I recognised the need for a practitioners' guide which detailed sentencers' powers across the board, summarised the approach adopted by the Court of Appeal in respect of particular offences or disposals and also provided some sense of the principles underpinning the structure of sentencing introduced by the Criminal justice Act 1991. Though no longer employed in either capacity, I have nevertheless tried to write the kind of text that meets those specifications. The result has been well beyond the length of the usual 'Companion Guide' in this series and so the publisher and I have agreed to split the subject into two. The following volume addresses the assessment of seriousness and the approach to sentencing by nature of offence. Part Two (forthcoming) will address the general principles and provisions governing sentencing, and the specific measures and disposals available to the courts.
Of course, David Gilyeat had already led the way with his Companion Guide to Offence Seriousness which in two editions has proved its worth to pre-sentence report writers over the past five years and I have been fortunate in being able to build upon the foundations he laid. I am very grateful to David for letting me adopt and adapt his original work which has provided the inspiration for this particular volume. However, as expansion and updating has required virtually a complete rewrite of that material, I have nobody to blame but myself for all errors and oversights.
Sentencing is both an esoteric, elastic and elusive craft. The public, as represented in Hough's (1996) focus groups, appear cynical about the ability and performance of sentencers and 'systematically misinformed about sentencing practice'. We know too, from admittedly somewhat dated studies (Henham, 1986 and Rumgay, 1995) that magistrates show 'a significant misunderstanding of sentencing principles', respond to their local court culture and are influenced by what Rumgay terms 'situational factors' (such as the 'outsider' status of non local defendants) that are not to be found in any guidance judgement or textbook. Furthermore, 'the courtroom is a poor environment for effective information processing, involving often poor quality information, piecemeal rather than sequential delivery, and pressure of time', prompting resort to 'simplifications and short-cuts in reasoning' (Rumgay, 1995: 215). This guide (together with its sister volume) will serve its purpose if it makes professional life a little simpler for pressured practitioners by offering a convenient short-cut in analysing crimes, weighing seriousness and providing informed assessments to sentencers. The law is stated as understood at 31 October 1999.
From the Introduction
The greater part of the book seeks to provide an orientation to the more frequently encountered offences and also to some less common crimes on which authoritative guidance has recently been given. The selection offered does not claim to be comprehensive either in its coverage across the criminal calendar or in providing certain answers to any sentencing challenge faced by PSR writers. The entries that follow try- to provide a succinct definition of each offence, including its categorisation according to trial venue – 'summary', 'either way' or 'indictable only' - and maximum sentence. Wherever possible, entries go on to offer such assistance as can be gained in seeking to assess an offence's seriousness from three main sources:
Magistrates' Association Sentencing Guidelines
These Guidelines (NIASG) (revised edition, April 1997) cover a selection of offences dealt with regularly in adult magistrates' courts and `provide a method for considering individual cases and a guideline [on level of seriousness expressed in terms of custody, community penalty or discharge/fine] from which discussion should properly flow', but the Association cautions that 'they are not a tariff and should never be used as such'. The guidance for each offence is 'set for a case of average seriousness', ignoring the discount that can be earned by a guilty plea and also personal offender mitigation. The guidance suggests various seriousness indicators - aggravating and mitigating factors - but advises that the lists `are neither exhaustive nor a substitute for the personal judgement of magistrates. Factors which do not appear may be important in individual cases.' In other words, the Association's guidance is not intended for rigid, mechanistic application. A new edition is expected around April 2000.
Where the guideline indicates that discharge or fine is appropriate, the Association offers Guideline fines set at three levels according to income, intended to achieve `equality of hardship':
Low income (LI) about £100 per week from all sources
Average income (AI) about £250 per week as above
High income (HI) about£600 per week as above but not discounted for a guilty plea.
Mode of Trial Guidelines
The National Mode ofTrial Guidelines, updated in 1995, are intended to guide magistrates' courts indeciding whether an either way offence should be committed to Crown Court fortrial but the pointers offered are included here as they can be of assistancein weighing seriousness in sentencing.
Court of Appeal Judgements
Sentencers in the past have not been assiduous in following the leadership of the Court of Appeal(Criminal division). This was partly because case law was not particularly comprehensive or readily translatable into everyday sentencing practice. Appeal decisions usually resisted articulating generalis able principles regarding the interpretation of culpability and also tended to concentrate on length of terms of imprisonment rather than on the use of custody per se. An increasing willingness within the Appeal Court to offer 'guideline judgements' and to encourage citation of past decisions by counsel in mitigation, guidance to trial judges and appeal argument, together with a more prominent sentencing jurisprudence has changed the climate considerably in favour of use of precedents and of consistency. The entries that follow seek to present what detailed guidance exists and also to offer illustrations of approach where appropriate. But judicial guidelines should not be viewed too rigidly. As Lord Taylor CJ commented in R v Bigby (1993) The Times 14 October, 'they are not immutable and it falls to the court occasionally to consider a case which isout of the ordinary and calls for special treatment'. Further, it is worthrecalling the caution offered by Lord Taylor in Attorney-General's Reference No. 19 of 1992 (1993) 14 Cr App R(S) 330 that 'the facts of criminal cases ...vary so enormously that to argue from the facts of one to the facts of another'can be an unrewarding quest. More recently, Rose LJ in R v Graham (1999) The Times 23 February has reiterated that the level of sentencing, both generally and in relation to a particular offence, rises and falls in response to changes in public opinion. Thus 'the philosophy of limiting the use of imprisonmentwhich was behind CJA 1991 was replaced five years later by the assertion"Prison works".' Rose L J added that other factors can affect sentencinglevels from time to time, for example prison overcrowding. He concluded by repeating the familiar adage: 'Sentencing is an art, not a science.'Nevertheless, it is as a result of emerging and enduring themes and principles in Appeal cases that the Magistrates' Association and Mode of Trial Guidelines have been able to emerge as a distillation of that judicial leadership.
Sentencing Guidelines under the 1998 Act.
The Custody Threshold.
Length of Custodial Sentence.More Details on the Shaw & Sons Website
A Companion Guide to Sentencing Part Two: General Issues and Provisions
About the author: NigelStone, a former probation officer, is a senior lecturer in the School of Social Work, University of East Anglia, an associate lecturer in probation law with DeMontfort University and a member of the Parole Board.
Intended to provide a richer context for the issues posed in Part One, this book provides a comprehensive but accessible account of the generic provisions governing sentencing, both as a question of principle and as a procedural challenge Particular attention is paid to recent Court of Appeal interpretations and guidance it goes on to detail the legislation and case law, relating to each specific kind of sentence, order and ancillary measure, from automatic life imprisonment for a second serious offence to banning orders for football offenders Intermediate measures such as deferment of sentence and committal for sentence are fully explored, as are the consequences of breach of conditional dischargeor suspended sentence.
Although written with probation and youth justice workers primarily in mind, it is likely to be valuable to other criminal justice practitioners seeking a convenient reference book.More Details on the Shaw & Sons Website
I WILL WELL AND TRULY SERVE HER MAJESTY QUEEN ELIZABETH THE SECOND IN THE OFFICE OF JUSTICE OF THE PEACE AND I WILL DO RIGHT TO ALL MANNER OF PEOPLE AFTER THE LAWS AND USAGES OF THE REALM WITHOUT FEAR OR FAVOUR, AFFECTION OR ILL-WILL
(The undertaking of a justice of the Peace)
John Greenhill, M.Sc., Barrister
Since it was first published in 1964,this book has been a trusted reference for countless prospective, new and experienced magistrates. It is comprehensive in its coverage of all aspects of the magistrate's work, whilst being presented in a clear, straightforward style. The new edition covers the latest legislation, practices and procedures,dealing, for example, with the implications of the Human Rights Act.
Magistrates today are required to have more knowledge than ever before. Although much is now done to prepare newly appointed members of the bench for their responsibilities, this book will provean invaluable guide to them and their experienced colleagues through the many problems that confront them in particular, it will assist potential magistrates to gain an understanding of the obligations of the role.
t is, however, not only written for magistrates and potential magistrates, but also to assist the court clerk and the advocate appearing before the court to play their roles more effectively,
Paperback 160 pages
1. The history of magistrates and how they are appointed
2. Courts concerned with the work of Magistrates' Courts
3. The magistrate and human rights
4. Out-of-court duties
5. The justices' clerk and legal advisers
6. The magistrate in court
7. Adjournment,remand and bail
8. Jurisdiction;classes of offence and procedures
9. The advocates
10. The unrepresented defendant
11. Evidence generally
12. Committalto the Crown Court for trial of either-way offences
13. Sentencing adult offenders
14. Motoring offences
15. The Youth Court
17. The Family Proceedings Court
18. Miscellaneous matters
Postscript - Review of criminal courts
Many lay magistrates are busy men and women who, in addition to their court sittings, have little time for study. Few of them have been in a courtroom before being appointed as magistrates. Much is now done by means of training to prepare them for their new responsibilitiesbut the judicial role they undertake is never an easy one. The rules of evidence are not, initially, easy to understand and much has to be learned and understood about the procedures of the Magistrates' Courts. What magistratesare told in training sessions may seem widely removed from the reality of the courtroom and, at times, the roles of the various people in the courtroom may appear incomprehensible.
This book is intended as an initial guide for potential and newly appointed magistrates to many aspects of the work that magistrates are called upon to undertake. The role of the magistrate is not one that can be performed in isolation. Only if the people in the courtroom, be they legal adviser, prosecution or defence advocates, properly play their parts can the magistrates fulfil their task to do justice as they see it - which is the purpose and function of the Bench. It is necessary for magistrates to understand the role of the justices' clerk and legal advisersand the purposes of, and restrictions on, the advocates who appear before them. Equally, an advocate cannot be effective if he is ignorant of the duties and responsibilities of the Bench.
Much is required of magistrates in terms of court sittings and other matters such as Bench Meetings and committee meetings and there is an on-going programme of training throughout the magistrates' time on the Bench. It is important for magistrates to remember that nobody is forced to become a magistrate and that their functions and responsibilities are often carried out - as in many other spheres in life - in detriment to other matters. The amount of time involved can be considerable.
The Lord Chancellor requires a magistrate to sit for a minimum of 26 half-days each year. In some court areas,however, it is the practice for magistrates to sit for full days. The Lord Chancellor would hope that magistrates will sit on more than the minimum number of occasions and envisages that he will sit somewhere in the region of 35 half-days. The duties and times of sittings are settled by or on behalf of the justices' clerks and rotas of sittings are published. In due course, subject to having the time to spare and sufficient experience on the Bench, a magistrate may volunteer or be invited to additionally in the Youth Court, the Family Proceedings Court or as a member of the licensing committee and the betting and gaming committee. All of these extra matters involve a substantial additional commitment - one which magistrate must be certain he is able to give.
There is far more to the work of a magistrate than the introduction can convey. However, for all the books and texts on magistrates, their courtsand law and procedure, foremost source of advice and guidance for a magistrateis that of the justices' clerk and the court's legal advisers.
Any judicial appointment puts a person apart from his peers and can make him the target of blandishments and flatter magistrate needs to be aware of this both on and off Bench.
The police are represented in a Magistrates' Court more of than any other body of people. The prosecutor in criminal proceedings in the vast majority - of cases is an employee of the CrownProsecution Service. For those reasons, any privileges or favours offered by either body should be refused and they should be a reluctance to accept either official or unofficially individual or collective invitations to hospitality entertainment. Certainly, a magistrate should never privately nor informally discuss with a police officer or the Crown prosecutor anything connected with his office. The public belief in the independence and impartiality of the magistrate must always be maintained.
Magistrate must never allow - expediency,personal interest or embarrassment to persuade him into doing something against the dictates of his conscience. Unless a magistrate is confident that his approach to a particular trial will be detached and he is unafraid of the consequencesto himself, the magistrate should decline to sit in that case.
Every case needs to be tried with amagistrate's common sense. The public have put their trust in the magistracy,looking to the magistrates’ court to do what they have avowed to do in the words of the judicial oath. To be so trusted is an honour. To accept that honour is to undertake a heavy obligation to the public.
Readers will note that magistrates (aswell as defendants, witnesses, etc.) are referred to in the male gender. This is done purely for convenience and is not intended to detract in any way from the status of female magistrates. I am not alone in this practice; it is also adopted by the draftsmen of Acts of Parliament, no doubt because the English language has no single pronoun which applies to people of both sexes.More Details on the Shaw & Sons Website