The Aim of the Criminal Law is Not Merely to Punish Offenders by Imposing a Custodial Sentence

The Aim of the Criminal Law is Not Merely to Punish Offenders by Imposing a Custodial Sentence

In the world that we live in, law is very important, as it is a set of rules that dictates our society 's conduct towards politics, economy and society. Certain institutions such as the Police, Courts and Prisons impose these rules. As Sir John Salmond would describe it as 'The Body of principles recognized and applied by the state in the administration of justice. ' 1
Each country has their set of rules in a unique system, and the UK reflects that perfectly. Scotland has a different system comparing to the one present in England and Wales, which abides by the English Legal System. If an individual does not comply to it, he/she can face some of the criminal justice sentences, the most known one as a punishment, prison, but not only and sometimes not the best choice. That is why throughout the years England and Wales have developed their Criminal Justice sentences in order to prevent crime and rehabilitate its offenders.

In England and Wales, Criminal Law or penal law comes under the Public Law (concerning the state and government), and it focuses on the crimes committed against an individual and society, in which is a crime against the state. Punishments are given for its offences; always taking in consideration that what is a crime today may not be a crime tomorrow. Criminal law it is always changing and it is imperative that this continues as society itself suffers constant change. An example of this can be the Suicide offence. It used to be a criminal offence to attempt suicide until it changed in the 1960 's where a modern reform, The Suicide Act 1961, dictated that those who attempted suicide would not be prosecuted and it is only a criminal offence if an individual assists another to commit suicide.2
The criminal justice system has to manage between punishing the guilty and most important, protect the innocent. Thus, the prosecution has to prove that the defendant is guilty of committing maliciously a criminal offence according to the actus rea, latin for guilty act, which means that the defendant actually did it, alongside with the mens rea, latin for guilty mind, which proves that they had the intention of doing it. Actus non facit reum nisi mens sit rea—“the act does not make a person guilty unless the mind is also guilty.”3
Therefore, a person suffering from a mental illness is most of the times not guilty in the terms of having a guilty mind as their state of mind and their capability to think straight is dominated by their illness. And so, the Magistrates have to conduct these cases very consciously and decide if the case is going forward in court.
Moving on, once a person is found guilty, the judge can then sentence the offender. In Criminal Law, their aims, according to The Criminal Justice Act 2003, the purposes of sentencing is, not only to punish offenders but also to reduce crime, reform and rehabilitate offenders, protect the public and the reparation by offenders to their victims. Act reformed with the help of Halliday 's report published in 20014.
Hence, the criminal law has not only the custodial sentences but also other alternative sentences such as the community sentences, fines and miscellaneous sentences.

In order for an individual to realize that he/she has made a mistake, a crime on the eyes of the law, punishment plays a big part on the criminal law. However, this is not always the right solution and that is why, over the years, the English Legal System has changed gradually so that he finds the appropriate alternative for each one. Punishments should be appropriated for the crime committed. However, not always the right sentence goes to the right offender. Society nowadays is still very bias, and as an example, someone without a job, a sable home, is more likely to get a custodial sentence, even though the crime committed may not be entirely a prison sentence.
The effectiveness of custodial sentences is very controversial. Some say it works, some say it does not, and others like the PM David Cameron, believe that ‘it is not a case of 'prison works ' or 'prison does not work ' - we need to make prison work better’.5
Even though other alternatives are in place, many people still believe this is the way to make criminals pay. That is why prisons are packed and millions are coming out of the taxpayer’s pocket. Although is this the best way? Over the years millions of ex-prisoners are back in prison, so that just proves comes to believe that custodial sentences are not working and that punishment is not always the answer.
Moving on, another important aim of the criminal law is to reduce and eradicate crime. As a deterrent, normally punishment is one of the favourites, but criminals go along, and get more involved with criminality, this becomes a vulnerable, and the fear of punishment goes away.
A harsh approach was taken when the Criminal Justice Act 1982 was put in place. Instead of gradually increasing the sentence, a severe sentence at an early stage would be given, and so this would prevent reoccurrences. The so-called Detention Centre Order was eradicated in 1988 with a new amend of the Criminal Justice Act as no significant rates were shown.
Other alternatives have been developed and practised, such as the exemplary sentences, but yet no better results have been shown, which prove, reducing crime, really hard to tackle.

A better and more effective option, that is proving to be very helpful to not only the offender but also the society, is the reform and rehabilitate.
As the offender is rehabilitated and reformed, it is seen to be less likely to commit a crime again. This is because; they treat their addictions, drugs or alcohol for example, or even anger management courses, domestic violence and victim support. They get more educated and receive training and advice. They can also realise the mistakes that they done and the harm they posed for others.
All these are offered through, rehabilitation facilities, educational courses and also therapy. It is a very popular sentence in the courts has it is more affordable and instead of just punishing, it is helping the individual, therefore he/ she will not find the need to turn back to criminality.
This of course changes once the offender is back in their old environment full of old temptations. However according to a report produced by the Parliamentary Penal Affairs Group, there are evidence that if a programme focused on the offenders needs in relation to the offending behaviour are successful in reducing the risk of reoffending. 6
As long as criminal law is trying to meet their offenders needs, it also has to make sure the public is protected and that the offenders will not harm the society. That is why protecting the public is one of the most important aims of criminal law.
By taking an offender under custody, it is by all means taking the crime out of the streets and therefore protecting society. Nevertheless, they have to look for more affordable ways to deal with this as prison is proving to be not effective. Once offenders are free they seek revenge and sometimes innocent people are caught in the way.
A new approach that is showing to be very productive and satisfying is reparation. The criminal justice has been focusing in ways that the offender can provide relieves to their victims, as most of the times, victims seek therapy and are left very emotionally and physically unstable.
Criminal law knows that they cannot go back in time and take always what is already done, but they try to comfort the victim, by sometimes explaining why they committed that crime.
Restorative justice is about helping every victim get over the crime they’ve suffered. When a victim chooses to meet, the offender it often helps them feel safer and more satisfied that justice has been done. It can also be part of the rehabilitation process for the offenders themselves.7

In order to meet all these aims, the English Legal System has sentences, alongside with custodial orders that can meet everyone’s needs.
Firstly, a custodial sentence for a person under 18 years old means detention in a young offender’s institution. For an adult aged 18 years or over means imprisonment or suspended sentence. It is only given to serious offences according to the section 152 of The Criminal Justice Act 2003.
‘The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence’.8
Court has to take in consideration the offender and its previous convictions, failure to rehabilitate from previous sentences and if at any point, the defendant committed another offence whilst on bail. Continually if a judge proposes a custodial sentence, the probation service then has to plan a pre-sentence report where information of the defendant is detailed. All the background evidence will help the judge decide the appropriate sentence, making sure the offender will learn from his mistakes and make sure no further offences are to be committed. This sentence aims to tackle crime and protect the public, as the offenders are ‘closed behind bars’. It also gives them a chance to put their back against criminality.
Saying that, various studies reveal that after being released, fifty nine per cent of prisoners commit an offence and are back in the criminal justice hands.9
Not all offenders who are given this verdict serve the full sentence in custody, as they can be released on licence. If breached it is very easy to go back into custody.
Under the custodial sentence, another alternative can be put in place, called suspended sentences, created in 1967. This means that custodial sentence can be suspended as the court has the power to shorten the sentence from six months up to two years. In the suspended sentence, the offender has to undertake, for example, community work.
During the suspended sentence, the offender must not breach its terms of conditions. They can be failure to comply with community work, commit a further offence during the suspended period, which will be dealt in court as a new offence, thus another sentence can be put in place. This can be an encouragement to prisoners, as they hope to get out early and have a chance in life.
Another alternative in place in England under the custodial sentences dictates that a prisoner can also be released early and be put into home detention curfew. This applies to prisoners sentenced to prison between three months and four years. The offender is normally released sixty days early and put an electronic monitor usually located in the leg alongside another device stored at the offender’s address. Which make sure that the police know if the offender is complying with the curfew (7pm and 7am). Failure to comply with these conditions means offender is taken into custody. A study research carried by Dodgson revealed that only five per cent of offenders with this sentence have gone back to prison.

Secondly, there is the community sentence, which is given to offenders’ aged 16 or over.
‘A court must not pass a community sentence on an offender unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was serious enough to warrant such a sentence’.10
This sentence, alongside with many others must be given the most ‘suitable for the offender’.11 As the name suggests, this sentence remarks that the offender must do something back to the community and to himself. A community order can have some requirements such as: unpaid work, activity requirement, a programme requirement, curfew requirement, residence requirement, mental health treatment, drug rehabilitation, alcohol treatment and also a supervision requirement.
Each and one of these has its purpose, as for the unpaid work, offenders are required to work a number of hours, 40 to 300, throughout a period of time, normally 12 months. They wear high visibility jackets saying, community payback on the back. The work includes, conservation projects and canal clearance. This sentence allows the offender to fell proud on giving something back to the community, which leads to a sense of achievement.
Another good requirement given by courts under the community order is the drug rehabilitation requirement and also the Alcohol treatment requirement. These include drug and/or alcohol treatment to the offender for at least a period of six months; bare in mind his dependency on a drug and/or alcohol. The offender has to show willingness to comply with the treatment. Drugs and alcohol tests are carried out regularly has a regulation, in order to show the offenders’ process. This sentence is excellent as it can rehabilitate the offender, which means that any drug or alcohol related offence has a minimal reoccurrence percentage by the offender. A mental health treatment with the offenders’ approval can also be offered.
Supervision requirement can be sentenced as part of a community order, and so, a probation officer supervises the offender. An offender may be required to visit his probation officer, who has regular visits and reports from a period of six months to three years. This is a very useful way to have offenders talk about their problems and have someone to advise them and guide them throughout their in rehabilitating in the community process.
There is also the curfew requirement, which can also be imposed as a community sentence. This is relatively cheaper compared to imprisonment. This can keep the offender from making any trouble, as he/she is restricted to one place for a number of hours. Which is valuable to protect the public and reduce crime. This also gives the sense of freedom for those who haven’t committed very serious offences. GPS is on the cards for the government has it could be vital in many cases. Tags cannot give the exact location of the offender, and so it is very hard for police to know if, when not at home, the offender is creating trouble or for example, a paedophile entering a school building or a park.
On other hand the costs of tags is very controversial as many say it could be used for other options. This sentence is the main giant that tackles punishment by imprisonment, and may well be seen as a good alternative.
An activity requirement suggests that the offender has to participate in a specific activity or attend a meeting with someone. This means that the offender can be helped with unemployment, do group work or most importantly, provide reparation to the victim, one of the big and recent aims of the criminal law.
Each and every community sentence requirement aims to reduce crime, reform, rehabilitate and also very importantly to protect the public.

Continuously there are other alternatives such as the fines and other miscellaneous sentences. Beginning with the fines, which can be given to mostly every offence committed, apart from murder. They do not have a maximum in the Crown Court, but they have it up to £5,000 in the magistrates’ court. The amount of the fine is according the offence and the offender’s background, consisting in other convictions and mental status. Failure to pay may result in unpaid work or curfew requirements.12
Fines are a good way to ‘feed’ the criminal justice system, and keep people out of prison, but not only that, depending on the person imposed the fine, it is less likely for an individual to reoffend.
But, the offenders never pay most of the fines, which questions this alternative. The failure to pay several fines can lead to a custodial sentence, which leads to minor offenders in prison taking space of others. Some fines can be unfair for poorer offenders as they can end up paying the same as a person with way more money. This was to be tackled by the introduction of a unit fine scheme, but soon eradicated.
Other miscellaneous sentences can be various, from compensations, civil recovery orders, financial reporting order, absolute and conditional discharges, deferred sentences, disqualification and also injunctions to prevent gang-related violence.
The criminal justice system is very keen in help young offenders, as the number of crimes committed by youngsters has increased significantly between 1993 and 2005. Not only they have custodial sentences, but also the youth justice system has a profound aim to restore and rehabilitate young offenders as shown by the sentences imposed to them. Referral orders, reparation orders and youth rehabilitation orders alongside the community orders for offenders over 16 years of age are some of the sentences designed for those aims. Youth rehabilitation orders, work for young offenders as community orders for adults, which means that they have the same purpose.
Warnings are one of the things that enable the young offender to think things trough and realize that he still has another chance, which for adults apart from other alternative sentences, warning are not given.
Studies show that in the 1970’s, Britain, lead by the conservative party, had the highest rate of young offenders in custody in Europe.13 This was shown to be unfavorable for the kids and also for the country.

Custodial Sentences have been proven to be the last recourse to punish offenders, as other alternatives have been developed in order to meet not the offenders needs but also the society.
Criminal law is not in place only to punish but also to reduce crime, rehabilitate and reform, protect the public and to repair.
Every single one of these aims has their positives and negatives, some work and some do not, and that is why criminal law is in constant change and development.

Bibliography

Websites
J.C.Rowley, 2009, Law Exchange [online] available at http://www.slideshare.net/lawexchange.co.uk/ , assessed on 2 December 2012

Keir Starmer, 2010, Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide[online], available at http://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.html , assessed on 2 December 2012

Legislation, 2003, Criminal Justice Act, section 167[online], available at http://www.legislation.gov.uk/ukpga/2003/44/section/152, assessed on 4 December 2012
Legislation, 2003, Criminal Justice Act, section 148[online], available at http://www.legislation.gov.uk/ukpga/2003/44/section/152, assessed on 4 December 2012

Legislation, 2003, Criminal Justice Act, section 148[online], available at http://www.legislation.gov.uk/ukpga/2003/44/section/152, assessed on 4 December 2012
BBC,2012, David Cameron: We must make prisons work for offenders[online], available at http://www.bbc.co.uk/news/uk-politics-20022794, assessed on 10 December 2012
BBC,2011, A Point of View: Prisons don 't work[online], available at http://www.bbc.co.uk/news/magazine-15196517, assessed on 10 December 2012

Books
Elliot, C, Quinn, F, 2012. English Legal System. 13th ed. Essex, England: Pearson Education Limited
Heller, K, 2009. The Journal of Criminal Law & Criminology. 2nd ed. U.S.A: Northwestern University, School of Law

Bibliography: Websites J.C.Rowley, 2009, Law Exchange [online] available at http://www.slideshare.net/lawexchange.co.uk/ , assessed on 2 December 2012 Books Elliot, C, Quinn, F, 2012. English Legal System Heller, K, 2009. The Journal of Criminal Law & Criminology. 2nd ed. U.S.A: Northwestern University, School of Law