The issue in this question is regarding the effect of Criminal Justice Act 2003 (CJA 2003) to previous English sentencing system regarding one of the aims of punishment i.e. retribution. It is a duty for courts to apply under section 142 (1) of CJA 2003. The section requires the courts to have regarded the aims in imposing sentence to offenders which has now plays a smaller role in serving punishment. And how profound this changes has been.
I will discuss briefly about (a) historical background of CJA 2003, (b) identify who is CJA successor, (c) recognise difference in principle between CJA and its successor i.e. principles, aims and prioritises, (d) as how it bring effect to aims of sentencing today to offenders, victims and communities, (e) and clarify which type of aims actually the court based upon in deciding the appropriate sentence to adult offenders in respect to custodial and community sentence. To agree or not to agree with the statement.
HISTORICAL BACKGROUND OF SENTENCING POLICY
Before 1991, there was no statutory provision or general statutory framework comprising aims of sentencing which courts ought to rely upon. This had left the courts to decide on its own based on the facts of the case what is the best sentence for offender. However, by granting unlimited power of the court in fixing sentence, this caused uncertainty as on what basis the courts has reached upon such sentence. Hence, in 1991, CJA was set up in order to have a systematic approach to achieve aims of punishment. The main provisions under the 1991 Act were dominant by retributive theories which focused on sentences must commensurate with the seriousness of the offence. However, some parts of the legislation reflect utilitarian theories in the guidelines.
The primary objective in the 1991 Act was to ‘fix a sentence suitable to offender’s culpability’ as stated by The Streatfield Committee in 1961. Previously as mentioned in Sargeant (1974), sentencers were freely to apply any of the aims in fixing a sentence for an offender. Hence, the CJA 1991 was created in order to achieve uniformity and consistency in sentencing. However, when the concept of culpability becomes the basis of fixing a sentence, it leads to a heavier sentence for an offender. During that time, it has been seen as a balanced scale between seriousness of an offence and justice.
Subsequently, CJA 2003 enacted to replace 1991 Act after Halliday Report criticising the sentencing system in the latter. The system was said too focused in ‘just desert’ theory. The failure was obvious that focusing too much on retributive theory rather than rehabilitation or deterrence has caused the need of prison expansion as the result of blameworthiness concept applied in CJA 1991. The Act not exclusively defined neither in statutory provision nor by common law, seriousness concept in the context of retribution theory which led to lack of clear purpose as to future effect of the sentence.
The Halliday Report...