Criminal Justice Act 2003: The Sentencing Provisions

Abstract

The 1990s began with the enactment of the first general sentencing statute for over 40 years: the CriminalJustice Act 1991. The broad purpose of the Act was to bring about a form of proportionality in sentencing recognising a hierarchy of penalty levels, from fine up to community sentences and thence to custody; requiring ajudgement of seriousness before fixing the penalty level; reserving custodial sentences for serious cases; but, by way of exception to the general principle, allowing for longer-than-proportionate sentences for offenders thought to present a danger of serious harm. These objectives were set out fairly clearly in the White Paper of 1990,1 but the drafting of the 1991 Act was less clear. Some provisions, such as those on previous convictions, were drafted in such a technical and unfriendly manner as to generate judicial opposition. Other provisions were not direct in their expression: whereas the White Paper made it plain that proportionality should be the touchstone, the Act fell short of declaring such a principle. The provision on the length of prison sentences stated only that sentences should be 'commensurate with the seriousness of the offence' and this was not enough to prevent the then Lord Chief Justice from distorting the provision by construing it to mean 'commensurate with the punishment and deterrence which the seriousness of the offence requires.'2 Within months of its introduction, parts of the structure of the 1991 Act were dismantled (unit fines abolished, greater discretion to take account of previous convictions). In the years that followed the Act subsided into the background, its main provisions rarely even cited in sentencing judgments, its influence barely perceptible. One reason for this was a stark change of penal climate. The killing of James Bulger in early 1993 and the appointment of Michael Howard as Home Secretary later that year led both the press and politicians to call for tougher sentences. Howard proclaimed that 'prison works,' whereas in 1990 the same government had described prison as'an expensive way of making bad people worse.'3 Tougher measures were brought in, although when Howard proposed the introduction of mandatory sentences the senior judiciary rose up in open disagreement with the policy and (at the House of Lords stage) forced amendments to what became the