Double Dissertation in Law, 'The Political Significance of Criminal Sentencing'

The Political Significance of Criminal Sentencing in the UK – Why so Important?A dissertation submitted in fulfilment of the requirements for the BA degree in Law and Politics

Author: Callum Hughes 12008312 Word Count: 9,998

2014/15Keele University

ACKNOWLEDGEMENTS

This dissertation has been made possible by the continued support of academic staff at

Keele University Law School, family members and friends.

In particular, I wish to take this opportunity to express my deepest and most sincere thanks

to my supervisor Dr Sotirios Santatzoglou for his excellent guidance, advice and patience on

all aspects of research and writing. His shared enthusiasm and commitment to this work

simply cannot be underestimated and his cordial approach to my learning has ensured that

the writing of this dissertation be a pleasurable and enlightening experience. He has

conveyed a true spirit of adventure and energy to this work and an excitement in regard to

teaching. For this I am immeasurably grateful. In addition, I would like to thank my personal

tutor Dr Lara McMurtry for allowing me to discuss my ideas in relation to forming my

dissertation question and her unbroken support thereafter.

I place on record also my most heartfelt thanks to my mother, father and sisters for their

continued love and support throughout. Their kind words and constructive comments have

resembled a constant pillar of encouragement, reassurance and optimism. Their continuous

showings of affection have contributed greatly to the instillation of confidence that has

provided the very foundation on which to complete this paper to the best of my abilities.

Finally, but no less affectionately, I express my most sincere thanks to my friends both at

Keele University and elsewhere for their endless companionship and love throughout my

three years of study at Keele University. Their names are too numerous to mention in full,

but particular thanks is expressed to Zach Lloyd, Shaun Bethell, William Coningsby-Brown,

Alistair Benham, Amy Brodie, George Kagezi, Saif Ghori and Levi Salt. Their friendships have

no parallel.

Student No. 12008312 LAW-30083 1 | P a g e

ABSTRACT

It was January of 1993 when a then untried shadow home secretary by the name of Tony

Blair published an article in the New Statesman entitled ‘Why Crime is a Socialist Issue’. In a

determined show of resolve against the Tory who became home secretary that year, Michael

Howard, Blair recognised that a firm approach to crime was not some preoccupation of the

Tory right but the very essence of the centre ground. By unravelling Howard’s famous ‘prison

works’ slogan, Blair emphasized that being tough on crime was a policy for the many, not

the few. New Labour won the next 3 elections.

This dissertation investigates the inherently political process whereby questions previously

confined to judicial and academic spheres have become enmeshed in conventional lines of

political discourse since 1979. This paper accentuates these developments, termed the

politicization of criminal justice, and examines the significance of diverging theories of justice

as necessary foundations upon which legislation, sentencing rationales and criminal justice

policy are produced. This work concludes that disagreements about the objectives of criminal

justice and how these objectives ought to be pursued are an inevitable consequence of the

similarly charged political environment that surrounds the underlying theories of justice.


Contents

Chapter 1 - The Politicization of Criminal JusticeIntroduction…………………………………………………………………………………………………….3

1.0 The development of criminal justice as political argumentation………………..5

2.0 The unprincipled legislative production under the politicization of criminal justice………………………………………………………………………………………………………….…14

3.0 Sentencing: the wisdom of courts and the political indifference…..............18

Chapter 2 - Political argumentation, theories of justice and sentencingIntroduction………………………………………………………………………………………………….26

1.0 Imperfect theories of justice……………………………………………………………………26

2.0 Utilitarian theories of justice: a critique of just deserts and a theory itself……………………………………………………………………………………………………………..30

3.0 New Labour, new approach: cherry picking and the veil of legitimacy…….37

Concluding remarks……………………………………………………………………………………..40

Bibliography…………..…………………………………………………………………………………….42


Introduction“The very emergence of criminal law is historically a political phenomenon. Because of

the interests of particular social segments, criminal law was created: it has continued

to operate in various social contexts for the benefit of diverse and shifting interests,

including the interests of the state itself”1.

The above extract serves to demonstrate the implicit connection between the criminal law

and the political sphere. It is for these reasons that the criminal law is often considered to

be an extension of government and central to the moral character of the state2. It seeks to

define codes of behaviour and exercise social control in the face of wrongdoing, making

possible the operation of accepted forms of discipline and legitimating the right to punish.

The development of criminal law has taught criminal lawyers that the history of their

discipline is not necessarily the unfolding of reason through the development of doctrine or

a simple progression from a barbaric past towards an enlightened present3 – the criminal

law remains a means by and through which power is exercised or legitimated to deal with

modern forms of criminality.

We have become accustomed in the administration of justice to the well-established

principle that every citizen shall be equal before the law regardless of race, caste, gender,

religion, or sexual orientation4 that the casual observer may be forgiven for constructing an

apolitical, fixed view of the criminal law, as if there exists a shared code of conduct law-

abiding citizens aspire to equally and the criminal law is expected to uphold. Similarly, it is

1 Quinney (1970) p.44 (emphasis added).2 For further discussion, see Devlin (1959) chapters 1 and 2.3 Dubber and Farmer (2007) p.2.4 For a classical view, see A.V. Dicey, Introduction to the Study of the Law of the Constitution, in E.S.S Wade (eds.) (1959) p.193. For a more contemporary view, see Hepple (2014) particularly at ch.1, and Gibson (2014) p.xii.


often accepted that the objectives of the criminal law are well established, and the ways in

which politicians are expected to pursue these objectives well known. Among other

purposes, this paper is intended to show that when considered in the context of the

dynamic political environment, we find that no such consensus exists.

If we consider the primary purpose of the criminal law to uphold justice, we must remember

that such a concept is notoriously difficult to define and is the focus of great volumes of

philosophical literature. We must also remember that ideas about justice have been utilized

by parties across the ideological spectrum to embody party aspirations and legitimize policy

decisions. From a political point of view then, justice, and the institutions entrusted with

upholding it, is considered a necessary component of a moral society. With this in mind, it is

unsurprising that the sentencing stage of the criminal trial “is what concerns citizens most

(whether they fully understand its implications or not) and takes place against a background

of high public interest, media content and political jousting”5. Moreover, to consider the

possibility that one definition of justice be agreed upon is already a flawed undertaking as

every argument that rests upon this principle will be subject to objection by any reader

whose ideas about justice are located in an alternative framework6. The politicization of

crime and the role of the media have attracted the attention of a number of criminologists.

However, little academic attention has been given so far to the interplay between the

criminal theories of justice and the political sphere. This paper will address, firstly, the

politicization of criminal justice, and secondly, the ways in which theories of justice may

enable this politicization.

5 Gibson and Cavadino (2008) p.124.6 Easton and Piper (2012), p.6


Chapter 1: The politicisation of criminal

justice

Introduction

Since the 1979 general election, criminal justice has ceased to be a bipartisan matter that

may be left to professionals - it has become a prominent issue in electoral competition. In

contrast to the pre-Thatcher period, a highly political environment now surrounds all

aspects of criminal justice so that every decision is taken in the glare of publicity and

political contention. By shifting questions about criminal justice into conventional lines of

public discourse, policy measures are now constructed in ways that appear to value political

advantage over the views of experts and evidence of research. This chapter will analyse how

successive governments have politicized criminal justice. The apparently unprincipled nature

of criminal justice policy will be discussed, and the non-responsiveness of politicians to the

opinions of experts will be outlined.

1.0 The development of criminal justice as political argumentation:

1.1 ‘Law and Order’

The latter decades of the twentieth century saw the development of a new government

approach towards the punishment of offenders in which “the welfare concerns of the

‘rehabilitative ideal’ gave way to more punitive sentiments that were associated with

retribution”7. Indeed, the 1979 election may be seen as marking “the end of the post-war

7 Joyce (2013) p.281.


consensus approach to law and order”8. It is unsurprising therefore that issues of criminal

justice were instrumental in Thatcher’s winning campaign according to polls monitoring

shifts in public opinion9. Thatcher wasted no time in attributing the increases in crime of the

late 1970’s to Callaghan’s Labour government, while also emphasizing that Labour’s

promised future expenditure on criminal justice would have a significant impact on crime

levels10. Thatcher’s attack on Labour’s handling of criminal justice created a new dimension

to politics where questions about crime became embroiled in political discourse and

electoral bashing.

Thatcher’s rhetoric in the lead up to the 1979 election perfectly encapsulated this new

desire to associate issues of crime with issues of governance. She promised to reverse the

softness on crime that she attributed to Labour by boosting ‘the resources and powers’ of

the police to ‘prevent and clear up’ crime, to ‘toughen’ penal policy and protect law-abiding

citizens from lawlessness11. At a 1985 press conference, Thatcher boasted “never have you

ever heard me say that we must economise on law and order”. At the same conference,

Thatcher affirmed in relation to the Conservative’s pledge to increase spending on the

Metropolitan police force that “the tax payer would wish it”12. While Labour criticised the

Conservatives for widening social divisions and aggravating the root causes of crime that lay

in social inequality and deprivation, Thatcher attacked Labour for being soft on crime, for

being submissive against rising crime levels, of too readily being influenced by trade

8 Dunbar and Langdon (1998) p.100.9 Butler and Kavanagh (1980).10 Newman (1995) p.173.11 Reiner (2007), p.120.12 Full text of the conference available at http://www.margaretthatcher.org/document/106113. To conclude this conference, Thatcher was asked to deliver her final message for drug smugglers following

http://www.margaretthatcher.org/document/106113


unionism (which was intrinsically associated with disorder) and of failing to develop any

short term solutions to bolster public protection13.

1.2 ‘Prison Works’

Thatcher’s law and order rhetoric provided the perfect opportunity for Michael Howard to

develop his own stern approach to criminal justice having been appointed Home Secretary

in 1993. Howard intensified Thatcher’s law and order approach to such an extent that policy

outputs were now unmistakably associated with adopting an even more austere approach

to crime – Howard’s rhetoric at the 1993 Conservative Party conference, the introduction of

a range of measures including the curtailment of the right of silence and major changes to

the law on disclosure of evidence fused together to form a new discourse that not only

politicized questions about criminal justice, but popularized them14. In short, Howard made

issues about criminal justice more accessible by utilizing emotional rhetoric that provoked a

passionate response from voters, epitomized most famously by the slogan ‘prison works’15.

In Howard’s quest to gain support for his approach, he successfully propagated issues of

crime policy so as to galvanize the public desire for a zero tolerance stance being upheld.

Most notably, Howard’s utilizing of the ‘prison works’ rationale meant showing a complete

disregard for the relevant provisions in the 1991 Criminal Justice Act that failed to accord

with the change of direction in policy. The most significant of these transformations

concerned the overarching view of the 1991 Act that the use of imprisonment be restricted

to cases where the court believed a custodial sentence to be the only appropriate sentence

13 Punch (2007) p.23.14 Ashworth p.990, cited in Maguire, Morgan and Reiner (eds.) (2007).15 Gerber and Jackson (2013). It is certainly true that the late 70’s and early 80’s have been regularly cited by academics as the period that saw the first significant rise in political dissidence over issues such as policy accountability and restricted parole eligibility for serious offenders.


given the violent and/or sexual nature of the crime16. In regards to the length of sentence,

Howard’s ‘prison works’ rationale also meant overhauling Section 2(1) of the Act, which

provided that the sentence length be commensurate with the seriousness of the offence, or

combination of the offence with other offences17. The statute also made clear however that

sentences may be lengthened so far as is necessary where the offence in question is violent

or sexual in nature subject to the statutory maximum term for the offence. Thus, while

retribution seems to be the predominant underlying principle to the 1991 Act given that the

sentence length cannot be shortened (since the Act only refers to the seriousness of the

offence, which seems to be independent of offender characteristics), this principle failed to

satisfy Howard’s desire for a more deterrent-based approach to the use of imprisonment.

To secure maximum political advantage, Howard insisted that incarceration be used to a

much greater extent to deter offenders and bring about a reduction in crime generally. It is

unsurprising therefore that the 1993 Criminal Justice Act reversed a number of elements of

the earlier legislation. The most significant of these changes concerned;

The criteria for justifying the use of custodial sentences . The courts could now

consider the combined seriousness of any number of offences rather than being

restricted to no more than two offences as outlined in the 1991 Act, and;

The role of an offender’s previous record . The 1993 Act provisioned that the courts

may take into account any previous conviction and any failure to respond to a

previous sentence in considering the seriousness of the offence18.

16 S1(2).17 Section 2(2a) and 2(2b). The particular use of the term ‘commensurate’ has convinced some authors that the 1991 Act was influenced to a great extent by the ‘just deserts’ approach to criminal sentencing, discussed later. This approach, argue Gerber and Jackson (n.12), appealed to the political right by emphasizing proportionality of punishment and a limit on judicial and administrative discretion.18 Newburn (1995) p.123.


According to one Home Office civil servant, the government’s change of policies on criminal

justice under Howard was the most sudden and the most radical which had ever taken place

in the area of public policy19. The sharp acceleration of change under Howard’s approach

culminated in the Criminal Justice and Public Order Act 1994 which sought further to

introduce stricter measures on the administration of justice e.g. increasing grounds for

refusing bail and allowing inferences to be drawn from the right of silence. The Act is in

many ways a perfect encapsulation of how Howard took Thatcher’s law and order

foundation and transformed her approach to produce legislation and policy outcomes that

were, firstly, altogether more authoritarian in nature, and secondly, geared entirely towards

gaining political advantage rather than a genuine desire to provide greater public

protection.

1.3 New Labour: ‘out-toughing’ the Conservatives?

The appointment of Jack Straw as shadow home secretary in 1994 was a firm demonstration

that New Labour were willing to go to considerable lengths to dispel the notion that the

Conservatives be considered the ‘tough on crime’ party20. Indeed, as McLaughlin et al. note;

“…Straw fed and exploited the debate about the crime crisis by highlighting the need

to implement NYPD-style ‘zero tolerance’ policing strategies to tackle what he

described as an ‘epidemic’ of low-level disorder, incivility and anti-social behaviour”.21

Perhaps New Labour’s greatest achievement during their first term in government was to

have forged a ‘Third Way’22 law and order position that challenged the previously held

19 Gibson et. al (1994) p.84.20 Downes (1998). See also Downes and Morgan (2012).21 (2001) p.304.22 By ‘Third Way’ is meant an ideological approach to policy making that seeks to reconcile right wing approaches to economics with left wing approaches to social policy. For further discussion, see Driver and Martell (2000). For Blair’s full speech at the 1998 Labour Party Conference in which he denounced himself as a


notion that social democratic parties were by definition ‘soft on crime’. Following Blair’s

famous ‘tough on crime’ speech at the 1995 Labour party conference in which he urged his

audience not to mistake tough on crime policies as the ‘moral values of the Tory right’23,

Blair recognized that “people have felt they have to choose between punishment and

prevention, between, if you like, personal and social responsibility”24. By emphasizing that

the Tory approach to criminal justice overlooked the causes of crime, Blair skilfully

propagated that the only way forward for criminal justice was to address the causes of

crime while maintaining a strict approach to punishment. ‘Tough on crime, tough on the

causes of crime’ perfectly encapsulated the need for a greater sense of perspective than the

deterrent-based framework offered by the Tories. Blair’s greatest accomplishment here

however was that his new slogan not only paved the way for a firmer stance on criminal

justice in the form of policy measures and legislation, but in his emphasis on the ‘underlying

causes of crime’ that lay in social inequality and relative deprivation, Blair managed to

promote these views without ever being accused of authoritarianism. His approach to

criminal justice had, in a sense, created a publicly accepted manifesto – there was little

sense that Blair’s continuous calls for a tougher approach to criminal justice were in any way

detached from the electorate.

However, to accept without questioning that New Labour’s time in government be

considered a period of harsher punishments for offenders may be foolhardy. Indeed, while

New Labour called loudly for greater toughness with some offenders, particularly persistent

and young offenders for whom the Anti-Social Behaviour Order was introduced in 1998,

firm supporter of the ‘Third Way’, see http://www.lgcplus.com/tony-blairs-speech-to-the-labour-party-conference-full-text/1448734.article23 Full text available at http://www.britishpoliticalspeech.org/speech-archive.htm?speech=201. 24 Excerpt from a BBC interview with Jonathan Dimbleby on 04/04/1993. Full interview transcript available at http://www.bbc.co.uk/otr/intext92-93/Blair4.7.93.html.

http://www.britishpoliticalspeech.org/speech-archive.htm?speech=201


ministers were careful not to associate themselves with the ‘prison works’ mantra of

Howard and thus voiced opinions against the use of imprisonment for minor non-violent

crime25. Such measures seem to stand contrary to, for example, the introduction of

imprisonment for public protection under the Criminal Justice Act 2003. This sentence was

imposed on any adult offender who committed any serious offence provided the courts

were of the opinion that the offender in question posed a serious risk to members of the

public of serious harm. This mandatory sentence however was used to a far greater extent

than initially envisaged and threatened to add thousands to the soaring prison population26.

This sentence has since been abolished altogether following the Legal Aid, Sentencing and

Punishment of Offenders Act 2012, s123.

New Labour’s approach to criminal justice was characterized by being selective in policy

decisions and punitive ethics. The seemingly unprincipled nature of New Labour’s approach

raises the question whether or not the criminal law is a lost cause. As Ashworth points out,

from the point of view of governments the answer is clearly in the negative – crime policy

provides a discursive space in which politicians jostle for electoral advantage. But from any

principled viewpoint, it is undoubtedly true that there are a number of issues – of how the

criminal law ought to function, of when it should be engaged, of its purposes and its

objectives – which are simply not being considered in the vast majority of cases27.

Sanders has commented that New Labour’s multi-task approach to criminal justice,

embodied by a desire to, on one hand, ‘out-tough’ the Conservatives on crime, while on the

other, caution against increasing the already marked prison population, could be discerned

25 Cavadino and Dignan (2007) p.117.26 Cavadino, Dignan and Mair (2013) p.105.27 Ashworth (2000) p.1.


as early as the Crime and Disorder Act 199828. He argues that this statute contained ideas of

‘criminology of the other’, of which the most important elements were;

A tightening of anti-terrorism laws , embodied mostly in the Terrorism Act 2005.

Harshening of penal policy for serious offences , embodied mostly by the minimum

tariffs for murder as set out by the Criminal Justice Act 2003 and the increasingly

cautious risk-based policies for allowing prisoner release on licence.

Increased police powers . Powers to stop and search, arrest and detain in a police

station all significantly increased under New Labour, while all-new powers in relation

to mass surveillance and data gathering were also introduced. Sanders has also

argued that changes to the law of evidence, particularly on hearsay, bad character

and double jeopardy in the Criminal Justice Act 2003 undermine the rights of

suspects29.

Understood as the complete demonization of serious and repeat offenders, it may be

argued that criminology of ‘the other’ represents the hallmark of a deeply authoritarian

state. However, where authoritarianism concentrates political power in an executive not

responsible to, or representative of, the people, New Labour’s emphasis on tackling crime at

the root causes (which involved great focus on youth offending30) with the view to reducing

crime generally resonated perfectly with the electorate31.

Perhaps it is this ideological shift therefore that most adheres to the ‘new’ in New Labour32.

The underlying point here however is that New Labour’s success in politicizing issues of

28 Cited in Silvestri (2011) (eds.) p. 12.29 ibid p.13.30 See Newburn (1998) and Smith (2003).31 Lavalette and Mooney (1999).32 p.13.


crime, and particularly those that threatened ‘social security’33, as issues that demanded the

attention of the electorate were carried out under the guise of ‘public protection’ –

criminology of ‘the other’ was seldom associated with authoritarianism and thus New

Labour succeeded in playing the crime card for maximum electoral advantage.

All this interest in criminal justice has led to the mass production of policy and legislation

organized entirely towards gaining political ascendancy. Questions about criminal justice

now rank alongside the economy, the NHS and immigration as primary battlegrounds for

electoral competition - Prime Minister David Cameron has promised a “tough, but

intelligent” approach to crime and pledges “bold, unprecedented action” against

miscarriages of justice34; opposition leader Ed Miliband has stated that while Labour should

not try to “out-right the right on crime”35, a “smart” approach to crime policy must take

priority over any political desire to sound the toughest36; UKIP’s approach is a particularly

symbolic one given that Nigel Farage has utilized Thatcher’s law and order rhetoric on crime

policy, stating that UKIP’s stance on crime ought not to be fixated around legal principles

but identifying the threat from “troublemakers and outcasts” and addressing these

concerns37. The fixation with crime policy is by no means restricted to the largest parties

either – Liberty GB, a minority far-right party founded on strong anti-EU sentiments

proposes a criminal justice system where the criminal “should fear the consequences of

their behaviour”38; the Socialist Labour Party boasts that its crime policies “would wipe out

the basic causes of violence and crime”39, while Britain First promises to “make prisons a 33 For further discussion on New Labour’s emphasis on ‘social security’ and welfare reform, see Brewer, Clark and Wakefield (2002).34 The Guardian, 22nd October 2012.35 The Guardian, 8th July 2010.36 BBC News, 8th May 2014.37 Newman, The Justice Gap, 2014.38 Liberty GB, ‘Ten Point Plan to Save Britain’, (emphasis added). Available at http://libertygb.org.uk/v1/index.php/about-libertygb/ten-point-plan.39 The Socialist Labour Party, ‘Justice’. Available at http://www.socialist-labour-party.org.uk/justice.html.

http://libertygb.org.uk/v1/index.php/about-libertygb/ten-point-plan


place of hard labour rather than cosy holiday camps”, restore capital punishment for

paedophiles, terrorists and murderers, and make greater use of national service for habitual

offenders40. It is clear from the universality of approaches to criminal justice that these

issues now occupy an increasingly noteworthy space at the heart of political discourse. Less

clear however are the underlying principles behind the politicization of criminal justice and

the ways in which they operate. It is to this point that our attention now turns.

2.0 The unprincipled legislative production under the politicization of

criminal justice

2.1 All at sea: shifting criminal justice legislation and policy outcomes

The politicization of criminal justice owes itself primarily to the swift acceleration of change

from 1979 to the present day. A good starting point here may be found in the legislative

jungle that now surrounds the sheer number of Criminal Justice Acts (including several

variations) passed over the last three decades – see the Criminal Justice (Amendment) Act

1981, Criminal Justice Acts passed in 1982, 1987, 1988, 1991, 1993, and 2003, the Criminal

Justice and Public Order Act 1994, the Criminal Justice (Terrorism and Conspiracy) Act 1998,

the Criminal Justice (International Co-Operation) (Amendment) Act 1998, the Crime and

Disorder Act 1998, the Criminal Justice and Court Services Act 2000, the Criminal Justice and

Police Act 2001 and the Criminal Justice and Immigration Act 2008. These Acts, which were

once viewed as landmark legislative reforms for policymakers, and the frequency with which

they were enacted, not only suggest an increasing public and parliamentary preoccupation

with criminal justice, but more significantly, an increasing readiness to associate issues of

crime with issues of government.

40 Britain First, ‘Policies’. Available at https://www.britainfirst.org/policies-2/.


The rate at which Criminal Justice Acts were passed was matched only by the rate at which

policies were enacted and subsequently abolished. This seemingly unprincipled approach

was by no means restricted to a single period of government - it may be noted as a

consistent feature of criminal justice policy stemming from Thatcher to New Labour. The

‘short sharp shock’ detention centres for example, introduced by the 1982 Act which

reinvigorated the borstal system, were abolished in 1988 when detention centres were

merged with the wider network of young offender institutions41. As mentioned, Howard’s

appointment as Home Secretary saw core provisions of the 1991 Criminal Justice Act

reversed by the 1993 Act42. And under New Labour, electronic tagging was introduced,

abolished, and subsequently re-introduced following the implementation of the Home

Detention Curfew43. The rapid introduction of privately managed prisons is another

example44: the Green Paper Private Sector Involvement in the Remand System45suggested

that remand prisons be contracted out to the private sector; a decade later, the UK had six

privately operated prisons in full operation, with plans to construct an additional five. Such

developments stand in contrast to the recent work of the Prison Officers’ Association, which

campaigns along with various reform groups against privatization46.

Similarly inconsistent trends may be noted in the legal sphere too - on issues of criminal

sentencing, for example, it is clear that as the bank of case law and sentencing guidelines

continues to grow, so does the problem of outdated and inaccurate guidelines that fail to

accord with shifts in public opinion, leading to a lack of consistency, clarity and

41 Muncie, cited in Goldson (eds.) (2008) p.136.42 Wilson, cited in Ryan, Savage and Wall (eds.) (2001) p.125.43 Nellis, cited in Jewkes and Bennett (eds.) (2008) p.83.44 For a helpful analysis of the history and development of private prisons in the UK, see Panchamia (2012).45 Home Office (1988).46 n. 42.


predictability47. All this activity, and the short time in which it occurred, underlined the

process whereby issues about criminal justice usually left to academics, judges, and penal

reformers now demanded the attention of the public.

2.2 New Labour and the significance of ‘justice’

While ‘tough on crime’ approaches to penal policy tend to manifest the criminal law as an

instrument of oppression48, of far greater concern is the underlying process whereby those

involved in this highly politicized debate produce often conflicting ideas about justice. It is

important to emphasize that these outputs inform public opinion and shape policy

decisions, while also go some way to explaining why the questions ‘why punish?’ and ‘how

much?’ have been located within political and social theories for which the relationship

between the state and the criminal offender is the defining concern49.

New Labour’s clear preoccupation with justice may be understood from a number of Home

Office publications produced during this period. Perhaps most significantly, ‘narrowing the

justice gap’ was frequently cited as a key strand of New Labour’s penal policy in the White

Paper Justice for All50. As Clark has noted:

“Justice for All is guided by a single clear priority – to rebalance the criminal justice

system in favour of the victim and the community so as to reduce crime and bring

offenders to justice”51.

47 Wasik (2014).48 Lanham, cited in Lanham, Bartal, Evans and Wood (eds.) (2006) chapter 1B. Full PDF available for download at http://www.federationpress.com.au/pdf/lanham%20ch1b.pdf.49 Wasik (1998) p.103.50 (2002) Cm 5563. London, The Stationery Office.51 Clark, cited in Cape (eds.) (2004) p.21.


This fixation with ‘rebalancing’ the criminal justice system and ‘bringing offenders to justice’

provided a key policy platform for New Labour. Beyond the Crime and Disorder Act, New

Labour sought to implement elements of the controversial Crime (Sentences) Act 1997,

including the provisions regarding automatic life sentences for a second conviction for a

serious sexual or violent offence, mandatory minimum sentences of seven years for a third

class-A drug trafficking conviction, and the abolition of consent requirements for certain

community penalties52. This culminated in the passing of the Domestic Violence, Crime and

Victims Act 2004. This legislation primarily concerned legal protection and assistance to

victims of crime, particularly those who had suffered from domestic violence. By expanding

the provision of trials without a jury for such cases and introducing new rules relating to the

offence of causing the death of a child or vulnerable adult, this legislation suggests an

increased willingness to establish a criminal justice system that stood up for victims.

The Home Office’s rhetoric under New Labour clearly demonstrated these ideas in practice -

it described its role as ‘supporting the efficient and effective delivery of justice’53 and

delivering justice ‘with fairer sentencing and fewer occasions when the system seems to let

the offender off the hook’54. Rebalancing the Criminal Justice System in favour of the Law-

abiding Majority55 may be considered particularly significant here as this paper set out three

particular areas of reform New Labour vowed to address, the first of which was defined as

“measures that aim to give greater emphasis to the interests of the victim, not just in the

provision of services and access to compensation, but also in the decision-making of the

Parole Board”56.

52 Brownlee (1998) p.314-315.53 Working Together to Protect the Public: The Home Office Strategy 2008-11, (2008). London, Home Office.54 Rebalancing the Criminal Justice System in favour of the Law-abiding Majority: Reducing Reoffending and Protecting the Public, (2006). London, Home Office.55 ibid.56 Genders and Player (2007) p.2.


It must be remembered however that what is construed as just treatment will depend

entirely on the theory of justice adopted57. Justice embodies notions of equality and fairness

to both offenders and victims, and striking a balance between these conflicting interests lies

at the heart of the justice system. Thus what is construed as just treatment from a

retributivist standpoint may be perceived as unjust from a utilitarian standpoint, and vice

versa. Preventive detention, for example, may be defended as justifiable treatment on the

grounds that the interests of wider society be given priority over individual rights, but this

approach raises questions for retributivists. We will return to some of these questions in the

following chapter, but it is sufficient here to note that disagreements surrounding criminal

justice policy ought to be considered the result of similarly intense debates around

conflicting theories of justice58.

3.0 Sentencing: the wisdom of courts and the political indifference

Perhaps the most significant feature of punishment is that it rests upon a moral foundation.

This means that while it is true that a person’s ideas about what constitutes just treatment

may be expressed by referring to a variety of justice principles (such as fairness, equality,

consistency or need), there is an assumption that justice ‘just exists’ – it operates almost on

a metaphysical level and only becomes an explicit feature of human interaction when it is

clear that these principles are not met. Sentencing, therefore, operates independently of

political concern – its focus is purely on restoring a sense of justice when the actions of one

have, or have attempted to, impact negatively and unlawfully on another. It is for these

reasons that questions about justice occupy not only a noteworthy space at the heart of the

57 Various theories of justice are explored on the following pages. It is sufficient here simply to note the scale of this debate e.g. for a liberal concept of justice see Rawls (1971); for a discussion of feminist theories of justice see Daly (1994); for a ‘redressive’ approach, see Gold (2014).58 Buckler and Dolowitz (2005) p.303.


criminal justice system, but also at the heart of any well-managed society. The judiciary is

expected to operate independently of the executive and those who engage in it, but

perhaps more significant is the observation that sentencing on criminal matters

undoubtedly provokes passionate and emotive responses from the public that are often

difficult or impossible to articulate in rational terms.

Returning to the question about the wisdom of courts in sentencing, while the relevant case

law has been clear about the rationales of sentencing and the relevant factors that ought to

be considered when deciding the appropriate sentence, it may be said that these ideas tend

not to resonate adequately with the electoral objectives of the politician whose task it is to

exploit issues of criminal justice for political advantage. Decisions such as that in Kefford59,

for example, where the offender’s sentence was reduced on appeal from 12 months

imprisonment to 4 months on the grounds that any prison sentence must be considered in

light of the overcrowded prison system and that any custodial term must be no longer than

is absolutely necessary to meet the penal purpose of the sentence, are of zero value to

politicians as they fail to accord with their ‘tough on crime’ rhetoric. Within policy spheres,

justice is presented as if it is almost tangible60. Thus a disconnection has emerged between

the political class and the judiciary where the former purposefully overlook the opinions of

the latter in favour of a more politically-attractive rationale.

This has not however restricted the judiciary from making general pronouncements on

sentencing policy that demand the attention of MPs. In Begum Bibi61, Lord Lane CJ urged

judges to give shorter sentences for less serious types of offence, and a similar message was

59 [2002] EWCA Crim 519.60 Blake, Sheldon and Williams (2010), chapters 5 and 6.61 [1980] 2 Cr App R (S) 177.


delivered by Rose LJ in Ollerenshaw62, where it was emphasized that the sentence imposed

should be no longer than is necessary to meet the penal purpose which the court believes to

be most appropriate. Put concisely, the court emphasized that in cases of short periods of

custody, there are cases where 6 months imprisonment may serve the penal purpose

equally as well as 9, or 2 months may be just as effective as 4. The court also emphasized in

relation to prison overcrowding that such an approach was no less valid than the one

adopted in Begum Bibi. Furthermore, Lord Phillips CJ in Seed and Stark63 urged restraint in

the use of imprisonment in cases where public protection is not the foremost

consideration64, and emphasized that the effectiveness of prison regimes in light of issues

surrounding overcrowding is likely to be diluted. By this Lord Phillips meant that the

effectiveness of prison would become less constructive and more punitive. While it is true

that determining what legal effects flow from these decisions is difficult, it is certainly true

that such judgements are intended to mobilize a policy response. Such authority of course

remains in the hands of politicians, but the above case law does at least serve to

demonstrate that the judiciary’s role in providing informal sources of sentencing policy

ought not to be underestimated65.

Speaking three decades ago, Lord Chief Justice Lane commented that “sentencing consists in

trying to reconcile a number of totally irreconcilable facets”66. In noting the “maze of

legislation” faced by judges on sentencing, Lord Lane rather controversially called for the

prosecution counsel to “play a part in the sentencing process by directing the judge to such

62 [1999] 1 Cr App R (S) 65.63 [2007] EWCA 254.64 p.440.65 Newburn (2007).66 HL Deb, vol. 486, col. 1295.


statutory provisions as may guide him in his sentencing task”67. Lord Lane’s comments

illustrate the point previously that even where professional experts are concerned, the

sheer number of variables that are now required to be reconciled when deciding the

appropriate sentence, including previous convictions, previous responses to sentences,

offender characteristics, offender motives, and concerns about prison overcrowding will

continue to grow year by year as public figures take an even greater interest in this area.

These constantly-shifting discursive spaces where new ideas interact make the task of

achieving ‘real justice’ increasingly difficult. It is also worth remembering that sentencing is

merely one part of a much larger process in which the decisions of other individuals in the

administration of justice affect political and judicial outputs. Indeed, Garland has suggested

that this observation be considered more widely:

“The major cultural themes which appear in penality – conceptions of justice, of crime,

religious forms, attitudes towards age, race, class, gender, and so on – did not develop

independently there, nor do they stand on their own as isolated beliefs. Like all cultural

elements they are enmeshed in wide belief systems and mentalities, deriving their

sense and credibility from their ability to resonate with established ways of thinking

and understanding”68.

The politicization of criminal justice therefore has transformed the roles of the judiciary into

interpreters and implementers of justice – they have little influence on constructing new

ideas about what constitutes just treatment as these questions have been relocated firmly

on the policy agenda. Garland enhances this view in a later work:

67 ibid.68 Garland (1990), p.211.


“Criminal justice is now less autonomous than it was three decades ago, and more

forcefully directed from the outside. Criminal justice actors and agencies are now less

capable of directing their own fate and shaping their own policies and decisions”.69

The underlying point here is that when the interaction between the executive and the

judiciary on criminal sentencing is considered within its appropriate political context,

sentencing transforms from a question about justice to a question about governance. The

increasingly charged political landscape that now surrounds questions about criminal

sentencing is so volatile that changes which are heralded this year are often discarded the

following year. Indeed, as Wasik puts it;

“Sentencing levels are ‘talked-up’ by politicians who portray the public as instantly

punitive, although numerous research studies have shown that this is not the case at

all”.70

It must also be borne in mind that the sentencing hearing will be the final, and the most

visible, stage of the criminal procedure before the offender may be subject to the sanctions

of the state and considered a criminal. Thus the sentencing stage may be considered the

most ‘interactive’ stage of the criminal process and the culmination of the justice system’s

work: it is the point where the case becomes not only about the offender and the state, but

the offender and the expression of social values.

It is important therefore that sentencing be seen “within the context of the whole criminal

justice process, not as part of a preoccupation with penalties or as a demonstration of a

69 Garland (2001) p.172.70 (2004) p.1.


government ‘tough on crime’”71. Indeed, as Mary Tuck, the former head of the Home Office

Research and Planning Unit commented in an interview with Lord Longford;

“While the ‘official line’ is that length of sentences ought to be reduced, there [will]

always be the temptation in parliament for individual members – or even parties - to

bid up sentence lengths to show they were really tough on crime. It would become a

sort of auction of punitiveness”.72

Tuck’s remark captures succinctly the interplay between the judiciary and the executive.

While it is a basic constitutional principle that law-making be done by the latter and

interpreted by the former, the political desire to utilize questions about criminal justice for

political gain has led to greater central control over those who deliver sentences. This

development is punctuated by carefully drafted legislation that imposes limits on judicial

action - the implementation of minimum terms for certain types of offence and the

restricting of conditions for release on licence are just two examples of this. Furthermore,

while little reference has been made so far to the Sentencing Guidelines Council, it is

significant that the relationship between this body and the Secretary of State was

established in the Criminal Justice Act 2003, where it is given that where the Council has

prepared or revised any sentencing guidelines, it must consult, ‘such other persons as the

Council feels appropriate’73. In practical terms, ‘such other persons’ undoubtedly refers to

individuals outside of the judiciary – those with experience of policing, criminal prosecution,

criminal defence, and the welfare of victims of crime seem to be the relevant parties to

which this provision is addressed. Thus it is inaccurate to say that the activities and functions

of the judiciary are restricted only by MPs – it is clear from the above observations that the

71 James and Raine (1998) p.2872 Cited in Longford (1991) p.47.73 S 170(8)(b)(iii).


network of individuals who seek to diminish the influence of judges on criminal justice

extends far beyond those who sit in the House of Commons.

Concluding comments

This chapter has provided an overview of the ways in which criminal justice have been

utilized by politicians for the purposes of securing electoral gain. The origins of this process

have been traced to the early Thatcher period, while Michael Howard’s term as Home

Secretary in the early 1990’s and New Labour’s sustained emphasis on criminal justice that

propelled Tony Blair to Labour’s landslide victory at the 1997 general election have been

cited as pivotal periods for this politicization. A number of themes have been identified,

including the development of criminal justice as political argumentation, New Labour’s

preoccupation with conceptions of justice and the reluctance of the executive to follow the

opinions of the judiciary.

It is clear however that these observations are far from complete – little attention has been

given so far to opposing theories of justice and whether they provide the groundwork for

the politicization of the aims of criminal justice and the ways in which governments ought to

go about achieving these aims74. As we will see, sentencing encompasses a whole range of

competing and often conflicting ideas that invite the attention of both policymakers and

sentencers. The following chapter will address these ideas.

74 O’Malley (2010), ch.1.


Chapter 2: Political argumentation,

theories of justice and sentencing

Introduction

This chapter will argue that the lack of a universally applicable theory of justice has

produced fertile ground for the growth of political involvement in sentencing. While it has

been established on the previous pages that heightened political interest in matters about

criminal justice may be explained by an increasing desire to exploit these questions for

electoral advantage, it would be foolish to suggest that this explanation does not rest upon


a number of other factors – for example, the great expansion of the mass media. More

significant for the purposes of this paper however are the theories of justice that underlie

criminal justice policy. This chapter will proceed firstly by providing an overview of two

prominent theories of justice and their political implications. The intention is to show that

both theories are imperfect: that is, they are objectionable on at least one significant count.

The chapter will proceed by emphasizing the usefulness of utilitarian theories of justice and

the ways in which these theories are exercised so as to underlie criminal justice policy.

1.0 Imperfect theories of justice

1.1 Just Deserts

The Criminal Justice Act 1991 proposed a non-utilitarian framework based on the

seriousness of the offence committed and the proportionality principle in determining the

appropriate criminal sentence75. This is the ‘just deserts’ approach. Andrew von Hirsch, in

his influential book ‘Doing Justice’ (1976), claims that such an approach embodies perfectly

the criminal law’s principle of fairness – that the offender’s punishment constitutes a

justified and proportionate reaction to his wrongdoing76.

Doing Justice emerged as a result of 4 years of investigation carried out by the Committee

for the Study of Incarceration, which von Hirsch himself directed. The Committee

acknowledged that the primary objective in its research was to integrate the thoughts of

‘the philosopher, historian, economist, political scientist, sociologist, psychoanalyst and

75 Henham (1999), p.173. The just deserts approach is expressed succinctly in the Old Testament: “When a man causes a disfigurement in his neighbour… it shall be done to him, fracture by fracture, an eye for an eye, a tooth for a tooth” (Exodus 21:24).76 Ibid p.174. This is particularly true in relation to S1(2)(a) of the 1991 Act, which provides that a custodial sentence can only be justified if the offence (or the combination of the offence and one or several associated offences) is so serious that a custodial sentence is construed as the only appropriate verdict available to the judge.


lawyer into a unitary whole’77. Desert theory, the Committee insisted, addresses both the

question of why punishment is justified, as well as the question how much punishment is

justified.

Just deserts is a retributivist theory of punishment, thus it focuses only on the transgression

as the basis for imposing criminality. This rather basic function lies at the heart of this

approach, though advocates of the just deserts model also emphasize the importance of

due process, determinate sentences and the removal of judicial discretion in sentencing

practice. There are two points in particular that demand our attention here.

Firstly, there is a constant tension between discretion in sentencing and the rule of law.

Academics would argue that sentencers ought to have sufficient discretion in taking into

consideration the peculiar facts of individual cases, but this argument stands contrary to the

rule of law, which in this context means that judicial decisions be taken by reference to

standards declared in advance.78 As Ashworth rightly points out, there is an important

distinction between saying that judges be given a wide margin of discretion in deciding the

appropriate sentence and suggesting that judges be given a completely unrestricted license

to choose which rationale of sentencing to adopt79.

Secondly, the removal of judicial discretion means that clear differences in offender

motivation bear no moral or legal significance whatsoever. It follows that tragic cases such

as that of Frances Inglis, where the mother of a severely disabled 22-year-old had her life

sentence upheld despite her saying she had “no choice” but to mercifully end her son’s life

and did so “with love in her heart”, are no different to a cold-blooded act of murder80. The

77 p.xv78 Raz (1979) ch.11.79 Ashworth (2010) p.76.80 [2010] EWCA Crim 2637.


removal of judicial discretion therefore restricts the ability of the court to impose a just

sentence based on a careful consideration of the facts. Similarly, when sent to prison, one

offender may embrace the rehabilitative process to a greater extent than may be true for

another offender. Such realities undoubtedly exist among offenders, yet in undermining

judicial discretion, these concerns are entirely neglected, thereby labelling the just deserts

approach ethically and morally questionable.

A significant aspect of von Hirsch’s theory is that a commitment to understanding

sentencing practice ought to be considered a critical component of a theory of justice. The

proportionality principle, therefore, is presented as an almost inviolable requirement.

However, the severity of any sentence may only be made proportionate if levels of

seriousness can be distinguished, which is problematic. As Husak puts it, “the judgement

that one crime is more or less serious than a very different crime seems much like dealing

with apples and oranges”81. This gives rise to the single most convincing critique of desert

theory, termed the problem of incommensurables.

The problem of incommensurables lies predominately in desert theory’s assumption that

there exists a universally-shared notion of fairness82. Fairness ought not to be confused with

ideas of justice or morality, though social theories have often interconnected these

concepts. Thus, in theory at least, a sentencing policy based on a common understanding of

fairness (the just desert model) ought to produce legal outcomes that will be received

81 Cited in Ashworth and Wasik (eds.) (1998) p.189.82 This is debatable in itself. Consider, for example, the offence of attempted murder – The justification for criminalising such an offence, despite the fact that the accused has been unsuccessful in carrying out the act, lies in the notion that the accused’s mens rea (that is, his intention to kill) warrants the intervention of the state. Such observations can be made for all inchoate offences. Where such ambiguities exist, the judge must exercise his discretion in determining the ‘just desert’ sentence – this is difficult however when no physical harm has been caused.


positively by members of the public every time (because they will adhere to the same

notions of fairness as those involved in sentencing).

As Hough and Roberts argue however, there is little evidence that sentences are so well

received83. In fact, their conclusions point in the opposite direction: sentences are much too

lenient and judges are ‘out of touch’84. In short, sentencers find themselves in a crisis of

public confidence, a conclusion that severely challenges the apparent propriety of the just

deserts approach.

2.0 Utilitarian theories of justice: a critique of just deserts and a

theory itself

2.1 The need for a utilitarian approach

It may be said that the just deserts model not only lacks a convincing foundation, but also

fails to provide any form of desirable rationale to be utilized by policymakers. Thus the just

deserts model is of little or no value to political actors because it fails to provide a platform

to inform crime policy. Politicians desire an alternative approach to sentencing, one that not

only addresses the offender in question, but also brings with it an additional idea that will be

applicable to all matters of criminality and may be utilized for furthering a particular

ideological view. Following this, our attention now turns to utilitarian theories of justice.

Utilitarian theories of justice may be considered to fall into 4 categories: deterrence,

rehabilitation, incapacitation and restorative justice. All of these approaches “seek to

achieve some social benefit through the application of punishments”85. What the ‘social

83 Attitudes to Punishment: Findings from the British Crime Survey, Home Office Research Study 179, London: Home Office.84 Ibid p.19.85 Roberts and Gebotys (1989), p.388.


benefit’ is in any case will depend on the version of utilitarian theory adopted. Put

succinctly, utilitarian theories seek to achieve a good and proper criminal sentence for

offenders not only for the purpose of sanctioning them, but also for the sake of pursuing an

additional desirable function.

Each utilitarian theory of justice has a considerable philosophical background and

penological context which cannot be set out here. Thus focus will be maintained on the

version that most closely aligns with the objectives of politicians and may be considered the

most apparent in providing the foundation upon which policy measures have taken form:

deterrence.

2.2 Deterrence and its political significance

According to the White Paper that underlay the 1991 Criminal Justice Act, deterrence is a

principle with much immediate appeal86: “most law abiding citizens… would be deterred by

the shame of a criminal conviction or the possibility of a severe penalty”87. Note that

deterrence theory assumes that crime (or the decision to commit a crime) is a rational

choice88. Advocates of deterrence theory claim that such an approach not only deters

offenders from committing a crime, but also that it deters those who are merely considering

committing a crime.

There is a wealth of evidence marked in English case law to suggest that the courts are by no

means unaware of the influential role ideas about deterrence have had and continue to

have on underlying crime policy. The decisions in Cunningham89, Povey90, Celaire and

86 Home Office (1990), Crime, Justice, and Protecting the Public, Cm. 965. London: HMSO, p.6.87 Ibid.88 This is crucial to the failings of deterrence theory, discussed below.89 [1993] Crim LR 149.90 [2008] EWCA Crim 1261.


Poulton91, Oosthuizen92, Gareth Welleans93 and Hussain94 are all notable indicators95. This

was clarified further in R v Blackshaw96, where Lord Judge commented:

“There is an overwhelming obligation on sentencing courts to do what they can to

ensure the protection of the public… This is an imperative… [The] imposition of severe

sentences, intended to provide both punishment and deterrence, must follow… They

must be punished accordingly, and the sentences should be designed to deter others

from similar criminal activity.”97

To justify sentencing in terms of the sentencing outcome in this way is in stark contrast to

the just deserts framework, where emphasis is purely on ensuring that a just outcome is

achieved. It is by translating the former of these approaches to sentencing into policy

outputs that Michael Howard justified his ‘prison works’ slogan. It follows that the readiness

of the state to incarcerate offenders will deter them from committing a criminal offence,

thereby bringing about a reduction in crime generally and casting a favourable light on the

Conservative party.

Indeed, in a 1996 interview, when asked if ‘locking up a villain is based on the logic that he

can’t be committing any crime while he’s in jail’, Howard replied “Yes. I put the protection

of the public on the top of my priorities list”98. This form of ‘public protection’ may be

advanced as a general sentencing purpose in alignment with the Criminal Justice Act 200399.91 [2002] EWCA Crim 2487.92 [2005] EWCA Crim 1978.93 [2008] EWHC 109 (QB)94 (Mohammad) [2005] EWCA Crim 1866.95 It is worth noting however that while bringing about a reduction in crime has been frequently cited by the courts as the primary justification for applying a deterrence-based rationale to sentencing, deterrence may also be used for ‘securing the protection of the public’. This was particularly significant in Povey at para 4.96 [2011] EWCA 2312.97 At para 4 (emphasis added).98 Excerpt from a BBC interview with Jon Humphrys on 14/04/1996 (emphasis added). Full text available at http://www.bbc.co.uk/otr/intext95-96/Howard14.4.96.html.99 S 142(1)(d).


2.3 Deterrence and its imperfections

There are two underlying assumptions of deterrence theory that must be borne in mind in

light of the observations made on the previous pages. The first of these concerns rational

choice, while the second concerns the way in which deterrence theory operates in practice.

During a speech at the Conservative Political Centre on 29th January 1996, Prime Minister

John Major commented “crime is a choice whether its burglary by a young tearaway or

sophisticated financial crime”100. In this sense, every member of the public is assumed to be

a potential criminal – all that distinguishes offenders from potential offenders is the ability

of the latter to restrain from criminal action in the face of an opportunity. It follows that the

act of restraining from crime, or the act of refusing the opportunity to engage in a crime by

exercising self-control, can only exist on the condition that severe enough punishments are

in place to deter individuals from committing a criminal offence. In practice, this means that

it is not the gravity of the crime but the propensity to reoffend which should be the main

determinant of the sentence. Supporters of deterrence theory therefore believe, or are at

least willing to assume, that the potential benefits of committing a crime are not only

immediately visible, but also attainable, for the potential offender101.

The second important implication for thinking about deterrence theory is that it can only

operate within the mind of a potential offender. This means that the deterrent effect of a

criminal sentence may only operate (if at all) if the offender knows the severity of the

probable sentence, takes this into account when deciding whether or not to commit the

offence, believe that there is a reasonable chance that he/she will be caught, believe that

he/she will be charged and subsequently sentenced (perhaps even with reasonable

100 Full text available at http://www.johnmajor.co.uk/page831.html101 Gottfredson and Hirschi (1990).


knowledge about what the sentence is likely to be in light of his/her criminal record and the

particular circumstances of the case), and therefore refrains from committing the offence

with all of this in mind102. Clearly, to suggest that a potential criminal takes such

considerations into account when deciding whether or not to commit a criminal offence is

unrealistic. The dilemma is not made any more straightforward when turned on its head

either. The only possible explanation offered by deterrence theory for law-abiding citizens

obeying the law is that they fear the criminal sanction – no consideration is given to the

notion that the vast majority of people obey the law because they consider it to be

legitimate,103 or they realize that obeying the law tends to bring about greater social and

economic advantages both for themselves and others, particularly for independent

businessmen and women.

With these observations in mind, it may be said that while deterrence theory is, on the face

of it at least, an attractive one for policymakers, there are two fundamental flaws to this

approach. It is to these imperfections that we must briefly turn.

Criticisms of deterrence theory primarily fixate around the inherent difficulty in arriving at

any convincing enough conclusion based on empirical evidence. Put succinctly, there is

simply no evidence that it works104. There is no compelling evidence that the enforcement of

the death penalty, for example, deters offenders from homicide105. This has been well

documented both within the UK and US context106. This is due largely to the fact that any

102 Bottoms (2004) p.65.103 This is exactly the conclusion proposed by Tyler (2006).104 Tonry (2004) p.34.105 See the voluminous work carried out by Amnesty International (available at http://www.amnestyusa.org/our-work/issues/death-penalty/us-death-penalty-facts/the-death-penalty-and-deterrence) for an introduction. Generally speaking however, it is worth noting that debates surrounding capital punishment dominate political, social and legal discourse in America to this day, particularly in the traditionally-Republican southern states where conservative approaches to crime and law enforcement have historically dominated.106 Hood and Hoyle (2008) ch.9. See Also Ashworth (2010) p.78.

http://www.amnestyusa.org/our-work/issues/death-penalty/us-death-penalty-facts/the-death-penalty-and-deterrence



study of the alleged effectiveness of deterrence-based criminal sanctions must prove

beyond doubt that it is the fear of the legal penalty that is the particular factor that led to

avoidance of the conduct in question as opposed to any other reason107. Furthermore, it

seems that few offenders are aware of how severe the penalty for a particular crime is – in

other words, deterrence fails to prevent people from committing a crime not because

criminal sentences are too lenient, but because the vast majority of offenders are simply not

aware of what the legal sanction for committing the offence is, how serious it is, or how

their previous criminal record or the particular circumstances of their offence will impact

upon how they are treated by the courts108.

Furthermore, the Home Office itself has recognised that “it is unrealistic to construct

sentencing arrangements on the assumption that most offenders will weigh up the

possibilities in advance and base their conduct on rational calculation”109. In a later

publication, another Home Office report noted that “it is the prospect of getting caught that

has deterrence value, rather than alterations to the ‘going rate’ for severity of sentences…

The evidence suggests that any new sentencing framework should make no new

assumptions about deterrence”110.

2.4 Deterrence: A reflection

Despite the above concerns and the considerable authority to suggest that there is little

evidence to support the notion that criminals and potential criminals are deterred from

crime by harsh criminal sentences, far more significant, particularly for policymakers, is that

107 Paternoster (2010).108 Riley (1985).109 n.25.110 Home Office (2001), Making Punishments Work. (Report of a Review of the Sentencing Framework for England and Wales, commonly referred to as the Halliday report ).


deterrence theory sets out the foundations for a particular type of sentencing policy, and

thus, a particular type of approach to criminal justice – punish the crime, not the criminal.

This is an attractive approach for those in the policymaking sphere. By voicing support for

policy measures that include doing away with indeterminate and indefinite sentences,

reducing the grounds on which prisoners may seek early release on licence and upholding

minimum term tariffs for particular offences, the job of the politician is made relatively

simple: uphold these values at all costs, recognize that a firm approach to criminal justice is

required in order to reduce crime, and such an approach will resonate with the electorate.

For the politician, the fact that there is a great deal of evidence to challenge the apparent

proficiency and effectiveness of deterrence is irrelevant as long as adopting a deterrence-

based approach enables policymakers to present themselves as the individual who cares

most deeply about the ways in which the law ought to go about reducing it. It is for these

reasons that the just deserts approach has fallen out of favour with the contemporary

political sphere and is now reserved primarily for practitioners and academics, while

deterrence-based approaches have become key policy tools.

However, we saw earlier how New Labour successfully propagated issues about crime to

issues about governance by adopting an even more ‘tough on crime’ policy than the one

offered by Howard. We also saw that despite the continuation of policy that some may have

considered to resemble an authoritarian regime, New Labour’s greatest triumph in

implementing these measures was to do so in such a way that they were interpreted as

measures aimed purely at protecting the public rather than a means of furthering the state’s

control over the mass population. In other words, New Labour’s rafts of new crime

initiatives and measures aimed at improving social security were perceived to be


legitimate111. This explains why New Labour’s approach was effective in galvanizing public

support for Tony Blair’s 3 successful election campaigns. Left unanswered however is the

question of how – How did New Labour succeed in legitimizing such a vast expansion of the

criminal law without ever being accused of authoritarianism? The final section of this paper

is intended to address this question in full.

3.0 New Labour, new approach: cherry picking and the veil of

legitimacy

The apparent ‘special relationship’ Prime Minister Blair established with U.S President Bill

Clinton has so far gone unmentioned. The extent to which New Labour were influenced by

Clinton’s politics and electoral tactics is a topic worthy of a separate paper, thus it is

sufficient here to note that Labour in the early 1990’s saw its weak anti-crime credentials as

an electoral handicap and resolved to adopt Clinton’s approach to crime policy: never let

the conservatives get to your right112. For Clinton, this meant passing landmark legislation in

1994 that extended the death penalty to a further 60 federal crimes. For New Labour, this

meant voicing support for the repressive provisions in the 1993 Criminal Justice Act and

endorsing the changes in law to the right to silence of an accused person and the expansion

of police powers following the Criminal Justice and Public Order Act 1994113. Such

approaches, alongside the expansion of legislation as outlined in the previous chapter,

covered the ‘tough on crime’ element of New Labour’s quest to occupy the middle ground

in British politics. What followed however provided the foundation for New Labour’s

success: Blair realised that the Tory preoccupation with incarceration and deterrence had

111 This observation ought perhaps to be considered even more significant in the light of Tyler’s work (n.103)112 Downes and Morgan (2002).113 Tonry (2003) p.20.


entirely neglected a societal desire to see a more welfare-based approach to criminal justice

based on the needs of victims and the law-abiding majority. In other words, by Howard

fixating exclusively around policy outputs designed entirely to deter potential offenders

from crime through the assurance of tough punishment, Blair figured that the Tories had

missed a trick. By emphasizing one while simultaneously pursuing the other, Blair skilfully

brandished New Labour as the party that would achieve both.

By emphasizing the need for an alternative and more inclusive approach to criminal policy,

Blair spelt out the importance of “breaking the either/or choices that characterized the law

and order debate of the ‘old’ left and the ‘new’ right”114. In a series of speeches and position

papers, Blair espoused the communitarian values of mutual obligation, self-discipline and

individual responsibility115 and committed to prioritizing the needs of victims and law-

abiding citizens, as if marking the already well established distinction between criminals and

non-criminals. As Raine and Wilson note, by committing New Labour to tackling the root

causes of crime and those affected by it, Blair succeeded in establishing a new moral base

that would work in harmony with the humanitarian and communitarian values traditionally

associated with criminal justice116. Blair also succeeded in redefining the role and function of

criminal justice as a regulatory state institution with a greater emphasis on crime

prevention, rehabilitation and the wider setting of social policy, rather than a mere set of

services. As James and Raine point out, these developments signified an all new outlook on

crime policy that resembled a radically different approach to that of the Conservative party,

whose policies resembled a short-term answer rather than a long-term solution to an

increasing societal concern117.114 McLaughlin, Muncie and Hughes (n.21) p.303.115 Hughes (1996).116 Raine and Wilson (1997).117 ibid p.93.


By fusing a ‘tough on crime, tough on the causes of crime’ approach to crime policy while

simultaneously emphasizing the societal desire to see greater measures taken to bring

about a reduction in crime generally, New Labour’s approach to criminal justice

encapsulates a complex theory of justice: the criminal process was now expanded to such

an extent that while the sheer volume of legislation passed under New Labour points firmly

in the direction of an authoritarian criminal justice system, the establishment of a wide

range of crime partnerships and local authorities whose task it was to pursue the

rehabilitation of offenders via non-penitentiary means points in the opposite direction.

These developments may be summarised as an increase in bureaucracy. They may also be

summarised as an extension of the authority of the state. The result of these measures

however was to entrench discourses of crime control premised upon communitarian

notions of how to create law-abiding citizens and mould law-abiding communities – this, in

short, is the societal benefit New Labour pursued in criminal justice policy. While bringing

about a reduction in crime ought rightfully to be considered New Labour’s primary

objective, the way in which they set about achieving this goal (that is, by emphasizing the

need to address the underlying causes of crime rather than focusing entirely on a short-term

solution) paved the way for a rapidly-expanding criminal justice system that at no point was

considered illegitimate. Unlike Howard’s ‘prison works’ approach, New Labour understood

the imperfection of the theories of justice as well as the multiplicity of choices they offered,

especially the utilitarian range of options. In this way, New Labour kept satisfying the

various sides of public opinion and the media spectrum in making criminal justice a political

issue.


Concluding remarks

This paper has provided an overview of the politics of criminal justice policy from 1979 to

the end of the New Labour government and sought to uncover the ways in which political

actors have manipulated questions surrounding criminal justice for political gain. It has been

maintained that since Thatcher’s landmark victory at the 1979 general election that

symbolized the death of any academic or governmental consensus about approaches to

crime policy, questions surrounding criminal justice have become so embroiled in political

debate that they now rank alongside the most prominent of political issues as footballs in

electoral competition. Reasons for the political preoccupation with justice and the ways in

which governments are expected to uphold this particularly elusive concept have been

discussed with a specific emphasis on the activities of the New Labour government, which

has been punctuated by an inconsistent and seemingly unprincipled approach to criminal

justice exemplified by a great expansion in criminal justice legislation and a noteworthy

broadening of criminal justice policy. Following this, ‘tough on crime’ approaches, many of

which have resembled either a partial or complete disregard for the opinions of the

judiciary, have been explored within the context of their usefulness to political actors with

particular reference to Michael Howard’s ‘prison works’ ideas and overhaul of the 1991


Criminal Justice Act. Taken as a whole, this process has been termed the politicization of

criminal justice.

In light of these observations, this paper has provided an overview of the just deserts model

of criminal sentencing and outlined the desire, from a policymaking perspective, for an

alternative approach. Deterrence has been singled out as a utilitarian theory of great

political value because it provides fertile ground for the furthering of ‘tough on crime’

policies in criminal justice. These observations have suggested that the political jousting that

surrounds criminal justice may be traced to the imperfect theories of justice that underpin

these policies. Thus it may be said that ideas about what constitutes just and fair treatment

in the punishment of offenders operate in a similarly charged and highly politicized

environment unique to specific governments at specific times in political discourse118.

Indeed, while a ‘great sense of injustice’ was cited by the Woolf Report (1991) as the main

contributory factor to the Strangeways prison riots of 1990, it is unclear how this conclusion

was intended to mobilize a policy response119. This conclusion, while suggesting that the

involvement of the political sphere is a necessary precondition for arriving at a primary

rationale for underpinning criminal justice policy, also suggests that there is considerable

uncertainty in relation to how this is intended to give rise to a change in approach.

The main objective of this paper however has been to provide a solid foundation on which

further research may be conducted on the relatively unexplored question of how disparities

in policy approaches to criminal justice may be considered by-products of the underlying

conflict between imperfect theories of justice. This paper has sought to fuse together

philosophical ideas about what constitutes justice, how these ideas inform the criminal law,

118 Loader and Sparks (2011).119 The Woolf report was nevertheless seen by penal reformers as marking the climax of their influence over the penal policy-making process, with a total of 65 groups catalogued as having given evidence.


and finally, how these laws translate into changes in government policy. In short, it is hoped

that this paper has provided an appropriate starting point for learning further about the

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Double Dissertation in Law, 'The Political Significance of Criminal Sentencing'

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