Is imprisonment really an expensive way of making bad people worse?

بِسْــــــــــــــــــمِ اﷲِالرَّحْمَنِ اارَّحِيم

By Iman Haji

“Imprisonment is an expensive way of making bad people worse.” –  Home Office, Crime, Justice and Protecting the Public: The Government’s Proposals for Legislation, Cm. 965 (London: HMSO, 1990) p6.


The debate regarding the extent to which “prison works” is of the most politicised in criminal public policy. [1] In recent years increasingly amplified “[challenges] to the paradigmatic sequence of prosecution-trial-conviction-sentence”[2] have fostered an increase[3] in the use of “dispositive diversions.”[4] Adopting a utilitarian approach,[5] this paper considers the extent to which cautions are a more effective means of punishing those who commit low level crimes. [6] Within this framework the question of effectiveness will be considered through two lenses. Firstly, since the principal aim of criminal punishment is to reduce crime[7]  the efficiency of both methods in reducing criminal recidivism[8] in a cost-effective manner will be assessed. [9] Secondly, as the “what works?” debate is heavily politicised,[10] and all punishment under utilitarianism must avert a greater evil,[11] the question of effectiveness will require an evaluation of the extent to which caution use impacts defendants’ and victims’ rights. This is since an erosion of victims and defendants rights is associated with the departure from the “‘one-size-fits-all’ [criminal law] procedural paradigm.”[12] In this regard, proposals for reform will be submitted to strengthen the argument that cautions can be a more effective method of punishing low-level offenders.

The greatest challenge to the “liberal model,”[13] of which imprisonment is an end result, is the propagation that it is a disproportionate and expensive means of dealing with low level crimes.[14] Liberalism provides that “no person should be liable to punishment unless the charge has been duly tried in a criminal court [with] procedural safeguards.”[15] In principle, seeking to safeguard the public from arbitrary criminalisation is irreproachable.[16] However, with cases “being pumped into the criminal justice system at[unsustainable levels],”[17] affording a petty thief the same procedural, and inadvertently costly, safeguards as a defendant charged with murder,[18] appears to be politically untenable.[19] Politics and economics combine to mean that government expenditure on “criminal justice has to compete with health, education and other public services all of which have implications for social justice.”[20] In light of this, public policy necessitates that prioirities are set[21]  and that criminal justice aims are pursued “efficiently and effectively without disproportionate cost and consequent harm to other public services.”[22]  The fact that some Crown Courts have waiting times of up to 15 months[23] coupled with the fact that it costs tax payers £45,000 a year[24]  to keep each of Britain’s 85,235[25] prisoners in jail, makes apparent the costly inefficiency of according with the liberal model.  Therefore, this failure to allocate punishments proportionally indicates precisely why there is a need to look towards comparatively cost-effective diversionary disposals, as an effective alternative to imprisonment.

In order to address the issue of disproportionality of punishment aforementioned, it is important to understand its relation with cost-efficiency.  Punishment connotes retribution as well rehabilitative deterrence[26] aimed at reducing crime.[27] Under utilitarianism punishment is “needless where the mischief may be prevented at a cheaper rate.”[28] In light of this, one way of punishing offenders in a cost-effective manner[29] is by adhering to the just deserts “principle of proportionality of imposition.”[30]Under this model the “level of criminal intervention, both the process and the sanction [should be dictated by the] seriousness of the offence.[31] Meaning, a defendant charged with a serious offence should naturally be subject to more onerous sanctions.[32] Conversely, depriving low level offenders “of [the] fundamental right to personal liberty”[33] appears unjustifiable on the basis of cost and proportionality.[34] Ergo, since it is a “requirement of justice to punish offenders according to the degree of reprehensibleness of their conduct,”[35]it is submitted that, for low level offences, the purposes of punishment under s.142 of the Criminal Justice Act 2003[36] can be better achieved by the use of cautions. For some low-level and first time offenders the use of the non-statutory simple caution[37] is enough to motivate behaviour adjustment.[38] In other cases, the combination of punitive,[39] rehabilitative, reparative and restorative[40] conditions of a statutory conditional caution[41] “could address effectively the needs of offenders and victims at the same time.”[42] Therefore, the proportionate response of cautions to low-level criminal behaviour makes them to a large extent a more cost-effective means of punishing offenders with a view to reduce criminal recidivism.

Furthermore, the use of cautions safeguards state and public interests in three ways each of which make cautions a more cost-effective alternative to imprisonment. Firstly, the allocation of cautions by the police[43] and “relevant prosecutors”[44] de-bureaucratises the criminal process. Relieving the courts of the clutter of minor offences[45] expedites the resolution of cases[46] and gives police “more time to pursue serious criminals.”[47] This in turn has the potential to reduce crime.[48] Secondly, formal safeguards provide that receipt of a caution is dependent upon three factors: sufficient evidence of guilt,[49] the defendant’s admission of guilt[50]  and his consent to receiving a caution . [51] Therefore, since defendants retain the right to decline the offer of a caution, this procedural requirement is theoretically a more cost-effective means of safeguarding the interests of defendants against capricious criminalisation. Lastly, before giving out a caution, formal guidelines require that the relevant authorities take into account the views of the victim.[52] Although not completely determinative,[53] the inclusion of victims’ views has the potential to “increase public confidence in the criminal justice system.”[54] This is since conditions under a conditional caution may require the offender to provide reparation to victims[55]  and the wider community.[56] Thus, since cautions are a means of reducing crime while simultaneously safeguarding the interests of defendants and victims in a cost effective manner,[57] it is submitted that cautions can be to a large extent, a more effective alternative to imprisoning low-level offenders.

Having evaluated, and proved, the charge that imprisonment is an expensive and disproportionate censure mechanism. This part of the paper analyses the second charge:  whether “imprisonment makes bad people worse.”[58] Correspondingly, the comparative effectiveness of cautions in reducing criminal recidivism will be considered.

Michael Howard, the articulator of “the controversial edict: prison works,”[59] argued that “prison – and the threat of prison- act as a deterrent to criminals.”[60] Citing Burnett’s Dynamics of Recidivism[61] he based his conclusion on the fact that “imprisonment was the most frequently mentioned reason for not wanting to reoffend.”[62] However, in this “unenlightened speech,”[63] Howard failed to note the “contradiction between such allegedly rational calculus and subsequent lapses into offending.”[64] Prison by its very nature is criminogenic. [65]  It affects almost all objective factors that prevent recidivism the most important of which are: family relationships,[66] employment prospects[67] and housing.[68] Generally, 46.9 percent of prisoners reoffend within a year of release.[69] For low-level offences the number rises to 57.6 percent.[70] This is partly attributable to the fact that the “majority of short term prisoners serve less than six weeks,”[71] which provides “little opportunity to adequately address the [issue of why they offend].”[72]Therefore, it seems illogical to imprison offenders for petty crimes and expect them not to reoffend when they are released “stigmatized, unskilled, and untrained.”[73]Particularly when the “costs of reoffending by those released from short-term sentences is between £7–10 billion a year.”[74]

Generally speaking, the views of experts and those of politicians and the public as regards imprisonment are largely discrepant.[75] The popularity of incapacitating offenders, popular with the public,[76] is based on two linked but equally mistaken beliefs. The first is that prison works because incapacitation reduces crime and the second is that it works because “offenders are not committing crimes while they are inside.”[77] The ineffectiveness of the first argument is clear from the fact that the prison population would need to increase by between 15[78]  and 25 percent[79] for there to be a reduction in crime of one percent.[80]  This marginal return suggests that short sentences, have “no utility beyond incapacitation.”[81]  Secondly, the fact that a prisoner at Lowdham Grange Prison recently masterminded a conspiracy to import cocaine from his cell[82] highlights that a criminal underworld exists in prison as it does outside. In any case even if we were to be labour under the presumption that prisoners are not committing crime while in prison, this argument “obscures the fact that prison is unlikely to do much good and [that] the perpetrator is likely to return to law-breaking soon after release.”[83] Besides weakening social ties, prison often doubles-up as an education institute for criminality.[84] As research highlights, “placing low-risk offenders together with high-risk offenders actually increases the risk of the former [reoffending].”[85] Therefore, even if prison works because offenders are not committing crimes during their incapacitation, it is not an effective means of reducing crime but an expensive means of giving the public respite while criminals “strengthen the deviant bonds [that] lead to increased criminality.”[86]

Thus, since imprisonment opens a revolving door of criminality by leaving “offenders with little to look forward to on their release from prison,”[87] cautions may be a more effective means of preventing low-level criminals from reoffending. As Ashworth and Zedner note, “diversion tends to be followed by fewer convictions than court sentences.”[88] This is attributable to two factors of equal importance. In the case of the conditional caution the attachment of rehabilitative conditions[89] has the potential to address the root causes of offending. For the 55 percent of offenders whose criminality is associated with alcohol or other drug dependency,[90] formal guidelines provide that such offenders be required to attend dependency programmes.[91] Thus, since cautions address the needs of low-level offenders in a manner not done so by imprisonment, it is submitted that the use of cautions is a comparatively more proactive approach to reducing crime.[92]

Secondly, the lower recidivism rate of those who are diverted from imprisonment is arguably due to the fact that the receipt of a caution does not amount to a conviction.[93] This “spares the person the label, stigma and social disadvantages that might attach to a conviction.”[94] As Bentham argues punishment is unwarranted “where the mischief it would produce would be greater than what it prevented.”[95] Therefore since, short-term imprisonment is largely “ineffective and deleterious,”[96] it is suggested that diverting offenders away from the criminogenic culture within prisons through the use of cautions is a more effective means of encouraging desistance from recidivism.

This piece does not challenge the imprisonment of serious offenders, the present author notes that certain “offenders need to be physically contained for the protection of the public.”[97]Nonetheless, the imprisonment of low-level offenders can potentially negatively impact the rehabilitation of those serving long-term prison sentences. As Kenneth Clarke notes, “the more prisoners you put into overcrowded conditions, the more difficult it is to [sufficiently] organise [programmes that] deal with drug [and alcohol] rehabilitation and provide work and training.”[98] With the criminal justice system (CJS) under continuous strain to save money,[99]  the use of cautions may facilitate a two-pronged “justice reinvestment”[100] approach to reducing and preventing reoffending. Firstly, since it is “better to focus resources on preventing criminality than solely on catching, convicting and incarcerating criminals,”[101] the use of dispositive diversions, such as cautions, can rehabilitate and punish low-level criminals. Secondly, and more importantly, the money saved from diverting them from custody may be used for better and more targeted rehabilitative programmes for those serving long sentences. Therefore, since overcrowded prisons negatively impact both types of offender,[102] the use of cautions has the potential to reduce the recidivism of both groups through more concerted efforts on their rehabilitation.

In analysing the effectiveness of cautions, this piece has mainly focussed on three factors: cost-efficiency, the promise of formal safeguards, and the impact of diversions on crime reduction. However, an analysis of the efficacy of cautions cannot be conducted without considering the non-efficiency based problems associated with their operation in practice. This part of the paper will now focus on some of these issues.

Cost-efficiency, proportionality of imposition and speedy disposals are worthy objectives, however, the extent to which the use of cautions “constitutes justice or makes people feel safer is another matter.”[103] While the police and prosecution are to base their decisions on the formal guidelines cited throughout this piece, “little is known about whether decisions are reached according to [these] guidelines or entirely extra-legal practices.”[104] Ashworth and Redmayne allege that the latter is true: “[formal] instructions on cautioning are used to legitimate or rationalise decisions made on other grounds.”[105] Indeed a joint thematic inspection by the Constabulary and the Crown Prosecution Service inspectorates (HMIC) notes substantial variations between criminal justice areas in the use of out-of-court disposals (OOCDs).[106] In 2010 of all the offences brought to justice (OBTJ) in West Yorkshire, 26 percent were by way of OOCDs.[107]Conversely in London OOCDs accounted for 45 percent of OBTJ.[108] Of course it is arguable that these variations are attributable to differences in local crime rates, however, such a conclusion appears simplistic.[109] The HMIC report links these differences to a “performance culture, which included a push to improve sanction detection rates.”[110]Disposing of cases by way of cautions counts as an OBTJ in the same way “as if it had been tried in court, except at significantly less time and cost [which in turn creates] a perverse incentive for criminal justice agencies [CJAs].”[111]  This clearly opposes the fundamental principle of law that like cases be treated alike. Thus, while adhering to the liberal model is expensive, safeguarding the rights of victims and defendants by way of a transparent process is better than “justice by geography”[112] steered by “managerially-driven net-widening.”[113]

Furthermore, the preceding discussion focussed on how proportionality of imposition and the deterrent ability of cautions benefit the public interest. In terms of proportionality, official guidelines provide that cautions should generally not be used for indictable offences except in “exceptional circumstances.”[114]This is interpreted to mean, where the “public interest does not require the immediate prosecution of the offender.”[115] However, empirical evidence demonstrates a divergence between this formal standard and caution allocation in practice. The HMIC report found that a third of decisions are applied inappropriately. [116] The case of Guest v DPP where the defendant attacked the victim in his own house is one such is one such illustration. [117]Despite the seriousness of the crime, the CPS saw it fit to give the defendant a conditional caution on the condition that he give his victim £200 in compensation.[118]As Goldring LJ notes it seems astounding to dispose of by way of a caution a case involving violence to the person and property (burglary).[119] More importantly in light of cases such as this, it is difficult to see how the use of cautions deters offenders or inspires public confidence in the CJS. As Padfield argues, “if the Government truly wants to develop greater confidence in the criminal justice system, why don’t they encourage open and local justice in magistrates courts?”[120]

Additionally it was argued that the requirement of “sufficient evidence of guilt”[121]  provided a procedural safeguard against arbitrary criminalisation. A cornerstone of criminal law is that guilt must be proven beyond reasonable doubt. Nevertheless there are indications which suggest that this standard is not always applied in the case of cautions.[122] Sanders highlights evidence that some “suspects [are] cautioned [where there is] insufficient evidence to prosecute.”[123] In other cases avoiding “unnecessary paperwork”[124]  incentivises the use of cautions.  This rampant divergence from formal standards is problematic and has the potential to- and arguably already has- lead to erratic criminalisation in some cases and a failure to protect the public in others. The absence of accountability and monitoring mechanisms exacerbates the scale of this problem.[125] Therefore, it is arguable that the liberal model, though expensive and criminogenic when it results in imprisonment, is better than an arbitrary system cloaked by opacity.

Nonetheless, the Attorney-General has previously argued that the requirements of admission of guilt and consent to receipt of a caution controvert the above assertion.[126] While the allocation of cautions is consensual in theory, “given the considerable imbalance of power between the police and the suspect,”[127] practice suggests an element of coercion. The disincentives of refusing a caution are so great that acceptance of a caution seems to be a safer option to many defendants.[128] The fact that defendants seldom challenge explicit pressure applied by police for admission of guilt even though that invalidates admission,[129]illustrates this point clearly. And while the “critics’ net widening [may be dismissed as] the advocate’s closing the justice gap,”[130] one cannot ignore the need for safeguards particularly now that “cautions are cited in court and relied upon for other purposes.”[131] It was argued above that punishment under utilitarianism must avert a greater evil. In this case the liberal model, though expensive and criminogenic, averts the evil of defendants being coerced into accepting punishment they may not warrant.

With regard to the disproportionality of the liberal model and the capricious practices associated with caution allocation some may argue that criminal purism provides a suitable framework for punishment. The puritanical position proposes that criminal law should always provide procedural protections by concerning itself only with serious crimes.[132] In doing so this system addresses the issues of proportionality and cost-efficiency without detriment to the rights of defendants. However, as Cruft argues it is difficult to see how this model can inspire public confidence in the CJS since it does not provide an answer for what should be done to low-level offenders.[133]

Based on this, this paper does not recommend dispensing with diversionary disposals. Their comparative effectiveness in reducing criminal recidivism through diverting offenders from the criminogenic environment within prisons demonstrates their value. The criticisms levelled against the opacity surrounding their allocation may be alleviated by means of reform. Firstly, in tackling regional discrepancies and extra-legal considerations permeating the allocation of cautions, police officers and prosecutors should be required to record the rationale behind any decision they make[134] with “magistracy providing local oversight of sanctions.”[135]Additionally the proposals, under the Criminal Justice and Courts Bill,[136] to scrap caution use for serious crimes and repeat offenders ensures accordance with proportionality of imposition. Thirdly, the creation of a “reporting system so that the public appreciates, perhaps monthly, perhaps quarterly,”[137] the rationale behind decisions injects an element of transparency in the diversion process and can potentially inspire greater confidence in the CJS. The HMIC report found that victims whose cases were disposed of by way of cautions expressed greater satisfaction than those whose cases went to court if they were kept updated on the progress of a case.[138]  Lastly, it is imperative that legal is given to defendants at police stations to avert coerced admissions and net-widening.

To conclude, prison is an expensive way of making bad people worse. The costs associated with getting offenders through the CJS coupled with that of imprisoning them makes prison a disproportionate censure mechanism for low-level offenders. In this regard cautions are more effective because they ensure “that resources are not wasted on cases where the paraphernalia of the court appearance is not necessary given the nature of the charge.”[139] Secondly, prison by its nature is criminogenic. It negatively impacts the social factors that prevent recidivism and has no real rehabilitative impact on those serving short-term sentences. For this reason cautions are more effective because they divert offenders away from the revolving door of criminality that prison opens. Similarly the use of cautions potentially facilitates the rehabilitation of serious offenders by means of justice reinvestment. However, the allocation of cautions in practice is surrounded by opacity which negatively curtails the promise of the formal guidelines supposed to govern their operation. “Public confidence in the CJS is critical to its effective working.”[140] As things stand, the allocation of cautions is largely erratic, arbitrary and plagued with inconsistencies. Therefore, the extent to which the state should look towards cautions as a more effective alternative to imprisonment depends upon reforming this. In this respect, it is suggested that Clauses 14 and 15 of the Criminal Justice and Courts Bill and the proposal to give magistrates a supervisory function over the allocation of cautions[141] are steps in the right direction.

Bibliography:

Books:

  • Ashworth, A., “Principles of Criminal Law” (New York, Oxford University Press, 2009)
  • Ashworth, A., and Redmayne, M., The Criminal Process 4th Edn (New York: Oxford University Press, 2010)
  • Bentham, J., An Introduction to the Principles of Morals and Legislation (Oxford: Clarendon Press, 1907)[142]
  • Clarkson, C.M.V., Keating, H.M., and Cunningham, S.R., Criminal Law 7th Edn (London: Sweet and Maxwell, 2010)
  • Davies, M., and Croall, H., and Tyrer, J., Criminal Justice 4th Edn (Essex: Pearson Education, 2010)
  • Morgan, R., Summary Justice: Fast- but Fair? (London: Kings College Centre for Crime and Justice Studies, 2008]
  • Sevdiren, Ö., Alternatives to Imprisonment in England and Wales, Germany and Turkey: A Comparative Study (New York: Springer-Verlag Berlin Heidelberg, 2011)
  • Soering, J, An Expensive Way to Make Bad People Worse: An Essay on Prison Reform from an Insider’s Perspective (Canada, Library of Congress in-Publication Data, 2004)
  • Von Hirsch, A., Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals (Oxford, Alden Press, 1985)

Cases:

  • R (on the application of Guest) v Director of Public Prosecutions [2009] EWHC 549
  • R v. Durham Constabulary (Appellants) and another [2005] UKHL 21

Edited Collections:

  • Liebling, A., and Crewe, B., Prison Life, Penal Power, And Prison Effects in Morgan, R., Maguire, M., Reiner, R., The Oxford Handbook of Criminology 5th Edn [Oxford, Oxford University Press, 2012] pp895-923
  • Padfield, N., Discretion and Decision-Making in Public Protection in Nash, N., and Williams, A., Handbook of Public Protection [Oxon, Willan Publishing, 2010] pp103-133
  • Padfield, N., Morgan, R., and Maguire, M., “Out of Court, Out of Sight? Criminal Sanctions and Non-Judicial Decision-Making” in Morgan, R., Maguire, M., Reiner, R., The Oxford Handbook of Criminology 5th Edn [Oxford, Oxford University Press, 2012] pp955-985

Journal Articles:

  • Ashworth, A., “Criminal Justice Act 2003: Part 2: Criminal Justice Reform – Principles, Human Rights and Pubic Protection” (2004) Criminal Law Review pp516-532
  • Ashworth, A., Zedner, L., “Defending the Criminal Law: Reflections on the Changing Character of Crime, Procedure and Sanctions” Vol.2 (2008) Criminal Law and Philosophy pp22-51
  • Baker, E., “From ‘making bad people worse’ to ‘prison works’: Sentencing policy in England and Wales in the 1990s” Vol.7 (3) (1996) Criminal Law Forum pp639-671
  • Brownlee, I., “Conditional Cautions and Fair Trial Rights in England and Wales” (2007) Criminal Law Review pp1-9
  • Burnett, R., Maruna, S., “So ‘Prison works’ Does It? The Criminal Careers of 130 Men Released from Prison under Home Secretary, Micheal Howard” Vol.43 (4) (2004) The Howard Journal pp390-404
  • Cruft, R., “Liberalism and the Changing Character of the Criminal Law: Response to Ashworth and Zedner” Vol. (2) (2008) Criminal Law and Philosophy pp59-65
  • Anthony Edwards, “Do the defence matter?” (2010) International Journal of Evidence and Proof pp1-6
  • Green, S.P., “Rationing Criminal Procedure: A Comment on Ashworth and Zedner” Vol. (2008) Criminal Law and Philosophy pp53-58
  • Hilliyard, P., Gordon, D., “Arresting Statistics: The Drift to Informal Justice in England and Wales” Vol.26 (4) Journal of Law and Society pp502-522
  • Padfield, N., “Out of Court (out of sight) disposals” 2010 Cambridge Law Journal pp6-8
  • Pritkin, H.M., “Is Prison Increasing Crime?” 2009 Wisconsin Law Review pp1050-1108

Lectures:

Newspaper Articles:

Reports:

Statute:

  • Criminal Justice Act 2003

Websites:

Parliamentary Debates:

·         HC Deb 30th June 2010, Volume No. 510 Part No. 8, cols 852-853

  • HL Deb 23rd May 2005 : Volume No. 672 Part No. 6 Cols 277-278

Parliamentary papers:

Footnotes:

[1] Grimwood, G.G., and Berman, G., “Reducing Reoffending: The ‘What Works?’ Debate”  (2012) Commons Library Research Paper  12/71 http://www.parliament.uk/briefing-papers/RP12-71/reducing-reoffending-the-what-works-debate [Accessed 9th January 2014] p2

[2] Ashworth, A., and Zedner, L., “Defending the Criminal Law: Reflections on the Changing Character of Crime, Procedure and Sanctions” Vol.2 (2008) Criminal Law and Philosophy p23

[3]Green, S.P., “Rationing Criminal Procedure: A Comment on Ashworth and Zedner” Vol.  (2008) Criminal Law and Philosophy p54

[4] Ashworth A., and Redmayne, M., The Criminal Process 4th Edn (New York: Oxford University Press, 2010) p171

[5] Bentham, J.,  An Introduction to the Principles of Morals and Legislation (Oxford: Clarendon Press, 1907)  Chapter 13, section 1.

[6] Cautions are only intended to punish low-level offences: See: Criminal Justice and Police Act 2001, Chapter 1

[7] Clarkson, CMV., Keating, HM.,  Cunningham, S.R.,  Criminal Law 7th Edn (London: Sweet and Maxwell, 2010) p48

[8]  Grimwood and Berman, Op. Cit note 1 at p18

[9] Ibid at p8

[10]  Ashworth and Zedner  Op. Cit note 2 at  p41

[11] Bentham, Loc. Cit note 5

[12] Green, Loc.Cit note  3

[13] Ashworth and Zedner, Op.Cit note 2 at p23

[14] Id.

[15] Ibid at p22

[16]Green, Op.Cit note 3 at p53

[17] Edwards,  A “Do the defence matter?” (2010) International Journal of Evidence and Proof  p1

[18] Green, Op.Cit note 13 at p53

[19] Ashworth and Redmayne Op.Cit note 4 at p57

[20] Morgan, R., Summary Justice: Fast- but Fair? (London: Kings College Centre for Crime and Justice Studies, 2008] p8

[21] Id.

[22] Padfield, N., Morgan, R., and Maguire, M., “Out of Court, Out of Sight? Criminal Sanctions and Non-Judicial Decision-Making” in Morgan, R., Maguire, M., Reiner, R., The Oxford Handbook of Criminology 5th Edn (Oxford, Oxford University Press, 2012] p956

[23] Edwards, Op.Cit note 17 at p1

[24]David Cameron, HC Deb 2 June 2010, Volume No. 510 Part No. 8, cols 852-853

[25] Howard League for Prison Reform, “Latest prison population figures Week ending Friday 7th February 2014” http://www.howardleague.org/weekly-prison-watch/ [Last Accessed 13th February 2014]

[26] Clarkson, Keating and Cunningham Op.Cit note 8 at p23These views are also apparent in s.142 of the Criminal Justice Act 2003.

[27]Ibid at p48

[28] Bentham, Op.Cit note 5 at Chapter 13 section 3

[29] Morgan, Loc. Cit note 20

[30] Ashworth and Redmayne, Op. Cit note 4 at p57

[31] Morgan, Loc. Cit note 20

[32] Id.

[33] Ashworth, A., “What if imprisonment were abolished for property offences?” Howard League for Penal Reformhttps://d19ylpo4aovc7m.cloudfront.net/fileadmin/howard_league/user/online_publications/What_if_imprisonment_were_abolished_web.pdf  [Last Accessed: 14th February 2014] p4

[34] Id.

[35] Von Hirsch, A., Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals (Oxford, Alden Press, 1985) p36

[36] Criminal Justice Act 2003 s.142

[37] The simple cautions was formerly known as a formal caution and renamed to distinguish it from the statutory conditional caution. See: Home Office, “Home Office circular 30/2005: Cautioning of Adult Offenders” [2005] http://205.139.89.196/about-us/corporate-publications-strategy/home-office-circulars/circulars-2005/030-2005/ [Last Accessed 14th February 2014] Section A(2)

[38] Ashworth and Zedner, Op. Cit note 2 at  P25

[39] The Police and Justice Act 2006 amends The Criminal Justice Act 2003 and adds punishment of the offender to the list of objects. Of the list of punishments available to prosecutors are: performance of up to 20 hours unpaid work in the community and the payment of a financial penalty up to a maximum of £250.

[40] The Crown Prosecution Service, “Conditional Cautioning: Code Of Practice & associated annexes” http://www.cps.gov.uk/publications/others/conditionalcautioning04.html#disposal [Accessed 17th January 2014] para.5(2)

[41] The conditional caution was created by Part 3 of the Criminal Justice Act 2003

[42] Brownlee, I., “Conditional Cautions and Fair Trial Rights in England and Wales” (2007) Criminal Law Review p3

[43] See: Home Office , Loc. Cit note 37

[44]Under s.27 of the Criminal Justice Act 2003: A relevant prosecutor is: the Attorney-General, the Director of the Serious Fraud Office, the Director of Public Prosecutions, a Secretary of State, the Commissioners of Customs and Revenue, and a person specified as being a relevant prosecutor in an order made by the Secretary of State.

[45] Morgan, Op.Cit note 20 at p17

[46] The national roll out of the “Criminal Justice, Simple, Speedy and Summary” scheme had the effect of reducing the average time it takes from charge to completion of a case from “8.8 weeks to just over 6 weeks.” – See: Judge, L., “Summary Justice in and out of Court,” The Police Foundation’s John Harris Memorial Lecture. [2011]  http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/lcj-speech-john-harris-lecture.pdf [Accessed 18th January 2014] p10

[47] Ashworth and Redmayne, Op.Cit note 4 at p188

[48] Putting more officers “on the beat” during the Street Crimes Initiative in 2002 lead to a decline of 16% in street crime –  Ashworth, A., “Criminal Justice Act 2003: Part 2: Criminal Justice Reform – Principles, Human Rights and Pubic Protection” (2004) Criminal Law Review p522

[49] For simple cautions see: Ministry of Justice, “Simple Cautions for Adult Offenders” [2013] http://www.justice.gov.uk/downloads/oocd/adult-simple-caution-guidance-oocd.pdf [Accessed 18th February 2014] para.43 For conditional cautions see: The Crown Prosecution Service, Op.Cit note 40 at para.4(1)

[50] For simple cautions see:  Ministry of Justice, ibid at para.59 For conditional Cautions see: The Crown Prosecution Service, Id.

[51] For simple cautions see: Ministry of Justice, ibid at para.75  For conditional Cautions see: The CPS, Id

[52] For simple cautions: Ministry of Justice, Ibid at para.52 For Conditional Cautions: The CPS, ibid at para.7(1)

[53] For simple cautions: Ministry of Justice, ibid at para.54  For Conditional Cautions: The CPS, id.

[54] Morgan, Op. Cit note 20 at p17

[55]The Crown Prosecution Service, Op.Cit note 40  Paras.3 (2) and 7(2)

[56] Ibid at para.5(2)

[57] Brownlee Op.Cit note 42 at  p2

[58] Home Office, Crime, Justice and Protecting the Public: The Government’s Proposals for Legislation, Cm. 965 (London: HMSO, 1990) p6.

[59] Burnett, R., Maruna, S., “So ‘Prison works’ Does It? The Criminal Careers of 130 Men Released from Prison under Home Secretary, Micheal Howard” Vol.43 (4) (2004) The Howard Journal p390

[60]Id

[61] Burnett, R., The Dynamics of Recidivism [Oxford: Centre for Criminological Research, University of Oxford, 1992]

[62] Barnett and Maruna, Loc. Cit note 59

[63] Ackner, HL Deb  23rd May 2005 : Volume No. 672 Part No. 6 Cols 277

[64] Barnett and Maruna, Loc.Cit note 59

[65]Liebling, A., and Crewe, B., Prison Life, Penal Power, And Prison Effects in Morgan, R., Maguire, M., Reiner, R., The Oxford Handbook of Criminology 5th Edn (Oxford, Oxford University Press, 2012] p899

[66] Prison Reform Trust, Op.Cit note 66 at p29:  Those who are surrounded by family are “less likely to relapse to substance misuse and reoffend.”

[67] Burnett and Maruna, Op.Cit note 59 at p394

[68] Grimwood and Berman, Op.Cit note 1 at p38

[69] Ministry of Justice, “Proven re-offending statistcs – July 2010 – June 2011” https://www.gov.uk/government/publications/proven-re-offending–2 [Accessed 11th January 2014]

[70] Prison Reform Trust, “Bromley Briefings Prison Factfile” [2012] http://www.prisonreformtrust.org.uk/Portals/0/Documents/FactfileNov2012small.pdf [Accessed 11th January 2014] p25

[71] National Audit Office, “Managing offenders on short custodial sentences” (2010)  http://www.nao.org.uk/wp-content/uploads/2010/03/0910431es.pdf [Accessed 17th February 2014]p4

[72] The Howard League for Penal Reform, “No Winners: The reality of short term prison sentences” https://d19ylpo4aovc7m.cloudfront.net/fileadmin/howard_league/user/online_publications/No_Winners_-_summary.pdf [2011] [Accessed 16th February 2014] p1

[73] Grimwood and Berman, Op.Cit note 1 at p72

[74]Ministry of Justice, “Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders” [2010]http://webarchive.nationalarchives.gov.uk/20120119200607/http:/www.justice.gov.uk/consultations/docs/breaking-the-cycle.pdf [Accessed 18th February 2014]p6

[75] Liebling and Crewe, Op.Cit note 65 at p899 also see: Parliament.gov.uk,  Parliament, policy and punishment seminar, http://www.parliament.uk/business/news/2010/02/parliament-policy-and-punishment-seminar/ [Accessed 16th February 2014]

[76] Ashcroft, L.,  “Crime, Punishment & The People: Public opinion and the criminal justice debate” (2011) http://lordashcroft.com/pdf/03042011_crime_punishment_and_the_people.pdf [Accessed 14th January 2014] p12

[77] Telegraph view, “We must remember the purpose of prison” The Telegraph [2010] http://www.telegraph.co.uk/news/uknews/crime/8187426/We-must-remember-thepurpose-of-prison.html [Accessed 17th February 2014]

[78] Grimwood and Berman, Op. Cit note 1 at p29-30

[79] Soering, J, An Expensive Way to Make Bad People Worse: An Essay on Prison Reform from an Insider’s Perspective (Canada, Library of Congress in-Publication Data, 2004) p15

[80] Grimwood and Berman, Op. Cit note 1 at p29-30 as well as id.

[81] Id

[82] Grimwood and Berman, Op. Cit note 1 at p5

[83] Ashworth, Op.Cit note 33 at p11

[84] Ackner, L., HL Deb  23rd May 2005 : Volume No. 672 Part No. 6 Cols 277-278

[85] Pritkin, H.M., “Is Prison Increasing Crime?” (2009) Wisconsin Law Review p1055

[86] Id.

[87] The Howard League for Penal Reform, Op. Cit note 72 at p3

[88] Ashworth and Zedner, Op.Cit note 2 at p26. Also see: Ashworth and Redmayne, Op. Cit note 4 at p171

[89] The Crown Prosecution Service, Op.Cit note 41 at  para.5(2)

[90] Prison Reform Trust, Loc.Cit note 67

[91] Id.

[92] Davies, M., and Croall, H., and Tyrer, J., Criminal Justice 4th Edn (Essex: Pearson Education, 2010)p211

[93] Jones v Whalley [2006] UKHL 41

[94] Ashworth and Zedner, Op. Cit note 2 at p25

[95] Bentham, Op.Cit note 5 at Chapter 13 section 3

[96]Grimwood and Berman, Op. Cit note 1 at p39

[97]House of  Commons Justice Committee, “Cutting crime: the case for justice reinvestment: First Report of Session 2009-10” Vol.1 [2009] http://www.publications.parliament.uk/pa/cm200910/cmselect/cmjust/94/94i.pdf [Accessed 17th February 2014]  p5

[98] House of Commons Justice Committee, “The budget and structure of the Ministry of Justice: Second Report of Session 2012-13” (2013) http://www.publications.parliament.uk/pa/cm201213/cmselect/cmjust/97/97ii.pdf [Accessed 17th February 2014] p101

[99] House of  Commons Justice Committee, Op. Cit note 97 at p5

[100]Ibid at p25

[101] Ibid at p26

[102] This point has also been noted by Baroness Stern in Parliament.gov.uk, Loc. Cit note 75

[103] Morgan, Op. Cit note 20 at p19

[104] Padfield, N., Morgan, R., and Maguire, M., “Out of Court, Out of Sight? Criminal Sanctions and Non-Judicial Decision-Making” in Morgan, R., Maguire, M., Reiner, R., The Oxford Handbook of Criminology 5th Edn (Oxford, Oxford University Press, 2012] p958

[105]Ashworth and Redmayne, Op.Cit note 4 at p176

[106] Her Majesty’s Inspectorate of Constabulary and Her Majesty’s Crown Prosecution Service Inspectorate, “Exercising Discretion: The Gateway to Justice” [2011] http://www.hmic.gov.uk/media/exercising-discretion-the-gateway-to-justice-20110609.pdf [Accessed 23rd February 2014]  p17

[107] Ibid at p18

[108] Id.

[109] Padfield et al, Loc.Cit note 104

[110] HMIC, Op.Cit note 106 at p19

[111] Sosa, K., “Proceed with Caution: Use of Out-of-Court Disposals in England and Wales” Policy Exchange [2012] http://www.policyexchange.org.uk/images/publications/proceed%20with%20caution.pdf [Accessed 18th January 2014] p2

[112] Ashworth and Redmayne, Op.Cit note 4 at p175

[113] Morgan, Op.Cit note 20 at p21

[114]Ministry of Justice, Op.Cit note 49 at p7

[115] Id.

[116] HMIC,  Op.Cit note 106

[117] R (on the application of Guest) v Director of Public Prosecutions [2009] EWHC 549 at para.56

[118] Padfield, N., “Out of Court (out of sight) disposals” 2010 Cambridge Law p1

[119] Id.

[120]Ibid at p2

[121] See note 49

[122] Davies et al Op.cit note 92 at p210

[123] Sanders as cited by Id.

[124] Id.

[125] Morgan, Op.Cit note 20 at p 20

[126] Brownlee, Op.Cit note 42 at p2

[127] Ashworth and Zedner, Op. Cit note 2 at p26

[128] Ashworth and Redmayne, Op.Cit note 4 at p174

[129] R v. Durham Constabulary (Appellants) and another [2005] UKHL 21 at paragraph 14

[130] Morgan, Op.Cit note 20 at p21

[131]Ashworth and Redmayne, Loc.Cit note 128

[132] Ashworth and Zedner, Op.Cit note 2 at p45

[133] Cruft, R., “Liberalism and the Changing Character of the Criminal Law: Response to Ashworth and Zedner” Vol. (2) (2008) Criminal Law and Philosophy p62

[134] HMIC, Op. Cit note 106 at p24

[135] Sosa,   Op.Cit note 111 at p11

[136] Clauses 14 and 15 of the Criminal Justice and Courts Bill.

[137]Judge, L., “Summary Justice in and out of Court,” The Police Foundation’s John Harris Memorial Lecture. [2011]  http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/lcj-speech-john-harris-lecture.pdf [Accessed 18th January 2014] p17

[138] HMIC, Op.Cit note 106 at p27

[139] Brownlee, Op.Cit note 42 at p

[140] Morgan, p11

[141] Barrett, D., “Victims of crime to be given a voice and challenge police” [2013] The Telegraph http://www.telegraph.co.uk/news/uknews/crime/10241162/Victims-of-crime-to-be-given-a-voice-and-challenge-police.html [Accessed: 18th January 2014]

[142] E- Book http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=278&layout=html#chapter_20748 [Last Accessed 18th January 2014]

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s