Impact On Victims and Offenders

7
Impact on victims and offenders
Summary
is chapter reviews, rst, the increased policy focus on victims, dealing with remedies for
victims of crime, and more recent involvement in the sentencing process via victim impact
statements. Secondly, it discusses conicting approaches to focus on the impact of punishment
on the oender or the oender’s family, including nancial penalties. It covers justications
from penology and evidence—from research and appellate cases—of practice in the courts.
7.1 An increased focus on the victim

7.1.1 Inuences on policy
e last 50 years have seen a gradual move towards giving the victim a bigger role in the crim-
inal process. New measures by which a person wronged by oending behaviour could gain
a remedy for loss were introduced from the 1970s, and two Crown Court judges argued that
there had been a ‘shi from principles of punishment, deterrence and rehabilitation to the
principle of undoing the harm done’ (Stockdale and Devlin 1987, citing Grosman 1980: 26).
In the years since then the victim has undoubtedly had a more visible presence in policy and,
as we saw in Chapter 6 (section 6.2), restorative justice (RJ)—with its emphasis on the benets
for victims as well as its eects on oenders—is accepted very widely as a self-evident ‘good’.
Consequently, focusing on the victim has become very important in the legitimation of
new sentencing policies. One context for this was a prevailing view that the crime problem
could not be solved but only managed (Walklate 2004: 29–32), and another was the idea
that the state had ‘stolen’ the ‘wrong’ (that is, the oence) from the victim (Christie 1977),
prompting remedies such as helping victims to ‘cope’ with the eects of crime. So, by the
end of the last century, some believed that ‘in less than 20 years, there has been a revolu-
tion in the criminal justice system. Each criminal case involves more than the government
versus the defendant’ (Davis et al. 1997: vii), and Garland argued that the ‘symbolic gure
of the victim has taken on a life of its own’ (2001b: 11). Twenty years later, Dame Vera Baird,
the Victim’s Commissioner, in her Victims Law Policy Paper, felt able to state that ‘victim
participation is essential to the delivery of criminal justice’ (2021: 6).
On the other hand, the development of the academic study of victims—victimology—
within criminology was problematic, with the early victimology being regarded as ‘this
dismal science’ (Burney 2003: 405). Mid-twentieth century positivist victimology had an
Sentencing and Punishment. Fifth Edition. Susan Easton and Christine Piper, Oxford University Press. © Susan Easton and
Christine Piper 2022. DOI: 10.1093/oso/9780192863294.003.0007
Impact on vIctIms and offenders 221
unhelpful ‘blame the victim’ approach,1 and until the late 1970s, victims were ‘almost wholly
neglected in criminology’ (Rock 2002: 1) but the growing interest in the eects of crime on
victims, particularly of rape, domestic violence, and race hate crimes, re-invigorated vic-
timology (Sanders 2002: 198, n 2).
7.1.2 What role for victims?

It was the Justice for All White Paper of 2002 which proposed to put victims and witnesses
at the ‘heart’ of the criminal justice system (Home Oce 2002c: para 0.22), although it was
strongly argued that the aim was to reduce crime and secure more convictions rather than
give victims a role (see Jackson 2003: 311;).2 Government papers supported the idea of
supporting victims (Home Oce 2003d: Foreword; Ministry of Justice 2010a) while, more
recently, A Smarter Approach to Sentencing (2020) is scattered throughout with numerous
references to ‘victims and the (wider) public’. Victims, then, have had a very high priority
in the ‘messages’ that the Ministry of Justice, the Home Oce and politicians have con-
veyed. In Scotland, too, criminal justice policy gave a high priority to victims with a Scottish
Strategy for Victims (Scottish Executive 2001) and the fact that the Scottish criminal justice
system complies with the EU Framework Decision on the Standing of Victims in Criminal
Proceedings (Scottish Executive 2002a).
Empirical data about the satisfaction of victims is also inuential. In her recent policy
paper, Dame Vera Baird referred to the following data:
● In a Victims’ Commissioner’s survey of victims conducted in April 2020, just 18% of
respondents felt that victims are given enough support through the court process.
● In England and Wales, the most recent Home Oce published statistics for the year to
September 2020 show that a record 25% of cases had been closed down because vic-
tims did not support the prosecution, a proportion that has more than doubled in the
past ve years.
(Baird 2021: 15)
e UK’s policy objectives raise several questions, however, as to what was driving the
policy. Clearly, a link is being made between victims and the eectiveness of witnesses,3
and ‘reviving the spirit of the community’ (Jackson 2003: 311–2) may have been an inu-
ence. So was victim involvement in the criminal justice process used as a means to reduce
reoending through the use of restorative measures, a means to improve the victim’s health
and happiness, or a means to increase public condence in the criminal justice system?4
Some have suggested that RJ appeals to governments because it appears as a solution to
the perceived need to ‘balance’ the interests of oenders, state, and victims when formu-
lating criminal justice policy (see Ashworth and Kelly 2021: 81–3; McEvoy et al. 2002: 469).
However, the comment made some time ago still has resonance:
is is oen framed in terms of a zero-sum game: what’s good for suspects and defendants
. . . is bad for victims and vice versa. us increasingly authoritarian penal measures, in the
UK for example over the last 10 years, are oen justied by government claims to be putting
victims ‘at the centre’ of penal policy.
(Sanders 2003: 161)
1
See Davies et al. (2003: 2–5) for a review of the strengths and weaknesses of the three perspectives in vic-
timology, which developed in the second half of the twentieth century.
2
For further discussion, see Reeves and Dunn 2010; Shapland et al. 2011; Walklate 2011: 330.
3
For research on the experiences of witnesses to crime, see Willoughby (2015).
4
For research on public condence in the Criminal Justice System, see Jansson (2015).
222 prIncIples, polIcIes, and problems
If we approach the issues historically, it is possible to see that the role of victims in criminal
justice policy in England and Wales changed in three stages: 1960–75—with the develop-
ment of compensation; 1975–80—with the development of specic schemes to support
victims; and from the 1980s onwards when a greater involvement of victims in the crim-
inal justice process was demanded (Newburn 1995). e focus on victims in the past three
decades has, consequently, had two very dierent aspects: one could be called a victims’
welfare approach, as evidenced by the Victim Support movement, while the other approach
is to give victims a status to inuence the outcome. e latter approach has received sup-
port for a ‘Victims Law’ (see Baird 2021) with the then Lord Chancellor, Robert Buckland
QC MP, saying at the launch of the revised Victim Code in 2021 that the government ‘will
consult on strengthening these rights even further through a Victims’ Law as we continue
to build back condence in the justice system’.5
Victims’ Code
e needs of victims had been strongly emphasised in Criminal Justice: e Way Ahead
(Home Oce 2001a), and the Code of Practice for the Victims of Crime was issued in 2006.
e Domestic Violence, Crime and Victims Act 2004 ss. 32–4 put the Victims’ Code on a
statutory basis, and revised Codes have been issued since then, the latest being brought
into operation on 1 April 2021.6 ere are now 12 ‘rights’ rather than the ‘entitlements’ of
the 2015 version:
1. To be able to understand and to be understood
2. To have the details of the crime recorded without unjustied delay.
3. To be provided with information when reporting the crime
4. To be referred to services that support victims and have services and support tailored
to your needs
5. To be provided with information about compensation
6. To be provided with information about the investigation and prosecution
7. To make a Victim Personal Statement.
8. To be given information about the trial, trial process and your role as a witness.
9. To be given information about the outcome of the case and any appeals.
10. To be paid expenses and have property returned.
11. To be given information about the oender following a conviction.
12. To make a complaint about your Rights not being met.
(Ministry of Justice 2020c: 1-2)
e latest Code explains what to do if you do not want ‘to receive the Rights oered’ (2020: 5)
but does not explain how to ‘activate’ your rights except that the 12th right states: ‘If you be-
lieve that you have not received your Rights, you have the Right to make a complaint to the
relevant service provider. If you remain unhappy, you can contact the Parliamentary and
Health Service Ombudsman’ (bold in original). e original Code (Charter) was subtitled
‘A statement of the rights of victims of crime’, but this was changed in 1996 to ‘A statement
of service standards for victims of crime’ (see Williams 1999: 387) and the Introduction to
the latest Code says it ‘sets out the services and a minimum standard for these services that
5
See: https://www.gov.uk/government/news/new-victims-code-comes-into-force, accessed 29
January 2022.
6
By the Domestic Violence, Crime and Victims Act 2004 (Victims’ Code of Practice) Order 2020.
must be provided to victims of crime by organisations . . . in England and Wales’ (2020: 1).
It would appear, then, that the Code can still be located within a managerialist discourse
where objectives are formulated and standards are set for citizens to be able to complain if
necessary.
Role of the Probation Service

Before 2015, the National Probation Service (NPS) had a duty to liaise with victims of ser-
ious sexual or violent oences if the oender had been sentenced to more than 12 months’
imprisonment, but there was evidence that the NPS found the focus on both the victim
and the oender dicult (Wargent 2002; see also Crawford and Enterkin 2001: 708).
Nevertheless, it built up considerable expertise in this area of work (see, for example, Home
Oce 2000b: Preface; Crook 2015).
However, when community rehabilitation companies (CRCs) took over the work of
the NPS, they had not been given duties towards victims but instead had to assist the
NPS in carrying out its responsibilities towards victims (see Crook 2015). e Victims’
Commissioner is now working with the Probation Service on matters of concern7 now that
the NPS has full oversight again.
To summarise, then current criminal justice policy covers the following disparate elem-
ents in relation to victims of crime:
● victim support initiatives;
● facilities for, and communication/liaison with, victims during the criminal process;
● the setting of standards and expectations in the Code of Practice for Victims of Crime;
● victim personal statements.
is list could be seen as one that progresses from the least problematic to the most prob-
lematic aspects of victim-focused policies. e victim supportive initiatives are essentially
those where victims are contacted aer they have reported an oence to the police and are
given counselling and any practical help required to cope with the aermath of the oend-
ing. Facilities being provided for victims and communication with them in the course of
the progress of the case may also be seen as relatively unproblematic, although not when
this overlaps with the issue of support to victims in order to give evidence. For example, ‘If
the suspect pleads not guilty, you will be allocated a Witness Care Ocer or other point of
contact who will keep you up to date about what’s happening in the trial and answer any
questions you have’ (Ministry of Justice Victims of crime: Understanding the support you
can expect leaet).
at raises issues as to whether the support of victims is unfair to the accused and, more
generally, raises the possibility of a conict between the rights of victims and of defendants
and oenders.
7.1.3 The victim personal statement scheme (VPSS)

Schemes, using—in the past and in other jurisdictions—victim impact statements (VIS),
victim opinion statements (VOS), or, as now in England and Wales, victim personal state-
ments (VPS), are clear evidence of a concern with the impact of crime on the victim. e
statement is the means by which the court is made aware of the impact on this particular
victim of the acts of the oender who is about to be sentenced.
7
See, for example, https://victimscommissioner.org.uk/news/victims-commissioner-works-with-probat
ion-service-to-reform-the-victim-contact-scheme/, accessed 19 October 2021.
In some jurisdictions, the victim has an inuential say in sentencing and might even
be able to decide the penalty, but in England and Wales such statements give victims a
limited opportunity to present their views to the court and early in their use the govern-
ment accepted that there has been ‘widespread confusion about whether the personal
statement is there to help courts understand the impact of a crime, to help relevant agen-
cies assess victims’ needs, or to give victims a chance to express themselves’ (Ministry of
Justice 2010a: 21). e introduction of family impact statements to court in several areas
in 2006—then applying only to oences of murder or manslaughter8—also suggested that
impact was taken more seriously in relation to the families of victims (see Department for
Constitutional Aairs 2006; Roberts and Manikis 2011: 7). e guidance current in 2021
for Making a Victim Personal Statement is that ‘the court will take into account the impact
of the oence on you as set out in your VPS, as far as it considers appropriate, when decid-
ing the appropriate sentence for the oender’ (Ministry of Justice undated: 2).
e police must oer the opportunity to make a VPS to the following people:
● any victim at the time they complete a witness statement about what has happened;
● victims of the most serious crime (including bereaved close relatives), persistently tar-
geted victims, and vulnerable or intimidated victims, irrespective of whether or not
they have given a witness statement about what happened;
● a parent or carer of a vulnerable adult or of a young victim under the age of 18 unless
it is considered not to be in the best interests of the child or vulnerable adult.9
When such proposals were rst mooted for the UK, concerns were raised in relation to
several matters: sentencing for unseen results of oending behaviour on the victim, the
preservation of defendants’ rights, and the raising of expectations which cannot be met
(Ashworth 1993: 505–7; see also Sanders et al. 2001: 448). It is also not clear why victims
are given this role in sentencing. Edwards (2001) reviewed possible justications but ar-
gued that the making of a VPS as therapeutic is not universal in practice, nor can it ensure
that the criminal justice system operates more eciently with improved sentencing out-
comes and nor would it necessarily contribute towards establishing a more participatory
and rights-based system.
Under the heading ‘Where will a VPS be used?’ the Joint agency guide to the VPS pro-
vides the following information:
4. (a) In Court – a VPS can be submitted for consideration in either the magistrates’
court or Crown Court.
(b) HMP Tari Reviews - a VPS can also be submitted for certain tari reviews of
those sentenced as minors, who have the right to apply to the High Court for a tari
review once they have served half of that tari.
(c) Parole Reviews - a VPS can be submitted by those victims who have an entitle-
ment under the Victims’ Code, where the oender is eligible to have their continued
detention reviewed by the Parole Board. is includes prisoners serving indeter-
minate sentences, recalled prisoners, and some types of determinate sentences.
(College of Police et al. 2018)
8
See A Protocol Issued by the President of the Queen’s Bench Division Setting Out the Procedure to Be
Followed in the Victims’ Advocate Pilot Areas: accessed at http://www.judiciary.gov.uk/docs/victims_ advocate_
protocol_ 030506.pdf, accessed 30 December 2021.
9
Previously in Ministry of Justice 2013h: 2; document revised 2018. Now in https://www.victimandwitness
information.org.uk/victim-personal-statement/, accessed 30 December 2021.
In England and Wales, the VPS is produced by the police in consultation with the victim
when they complete a witness statement and can be updated at particular stages of the pro-
cess. However, ‘victims of the most serious crime (including bereaved close relatives), per-
sistently targeted victims, and vulnerable or intimidated victims’ can also complete a VPS
whether or not they have given a witness statement, as can the parent or carer of a vulner-
able adult or a victim under the age of 18 (see Ministry of Justice undated).10 Participation
is optional for victims, and earlier research found that only 55 per cent of all victims who
recalled having been oered a VPS had completed one (Roberts and Manikis 2011: 3). As
Windsor and Roberts (2020: 11) say, ‘Recent empirical data on the use of VPSs are limited’,
but they note that ‘Across the most recent administrations of the Crime Survey of England
and Wales only 13% recalled receiving an oer’ from the police to make a VPS but that ‘Of
the victims who recalled being oered the opportunity to submit a statement, approxi-
mately half the victims (53%) stated they had submitted a VPS’ (2020: 1). So the situation
is virtually unchanged since 2011.
e most problematic issue, however, has been whether the VPS should include an
opinion on sentence:
Whether the victim impact statement should include the victim’s opinion regarding sen-
tence is a thorny issue, and there appears to be no consensus on this point. For example,
in England and Wales and the Netherlands such a practice is generally discouraged while
in the United States, most states allow presentations from victims in this regard. In South
Africa the law provides no clear guidance on the issue of victims’ suggestions on sentencing.
(van der Merwe and Skelton 2015: 356)
In this jurisdiction, therefore, it is seen as problematic if a VPS unduly inuenced a sen-
tencing decision or if it were viewed as amounting to a procedural right to be involved in
sentencing. For example, the then Lord Chief Justice made clear that the extra information
it provides about the consequences of the oence will simply be added to all the factors
taken into account in sentencing.11 However, there are exceptions and one such was shown
in R v Roche (1999), ‘where the court distinguished between calls for vengeance and calls
for mercy—stating that a court can never become “an instrument of vengeance, nonethe-
less it can in appropriate circumstances, and to some degree, become an instrument of
compassion” ’ (van der Merwe and Skelton 2015: 368; see also R v Mills 1998). e diculty
is in deciding the degree to which the court can or should be compassionate, and Geeraets
and Veraart have argued that ‘e result of providing the victim with more and more pro-
cedural rights is that it becomes increasingly dicult to adhere to principles and values
generally regarded as central to a just legal system’ (2021: 60).
e victim personal statement is, however, a far cry from the situation in those states
where the victim’s family can decide whether the death penalty should be imposed. In any
case, research has shown that concerns that victims would be more punitive than the judge
or the public appear to be misplaced. Dawes et al. note that ‘[w]hile a key criticism of sen-
tencing among the public was that it did not always result in justice for the victim, some
victims and witnesses actually tended to be relatively satised with the sentences handed
down’ (Dawes et al. 2011: section 2.2). ey also found that, while the public associated
long sentences with justice being done, victims oen gave more consideration to utilitarian
objectives such as changing the behaviour of the oender (2011: 14).
10
https://www.victimandwitnessinformation.org.uk/victim-personal-statement/, accessed 8 October 2021.
11
R v Perks (2001). However, one of the two exceptions to this is ‘[w] here the victim’s forgiveness or unwill-
ingness to press charges provide evidence that his or her psychological or mental suering must be very much
less than would normally be the case’.
On the other hand, some victims are concerned that the VPS does not have sucient
inuence on outcome: ‘Of all respondents who reported having submitted a VPS, less
than half (39 per cent) held the view that the statement had been fully taken into account’
(Roberts and Manikis 2011: 3). Wake has also critiqued the denitive guideline on ‘senten-
cing for loss of control manslaughter in England and Wales’ (Sentencing Council 2018c) as
failing to address the situation of victims of abuse who then kill their abuser (Wake 2019).
While this is a particular aspect of the circumstances of victims, it does reveal how much
wider the thinking about victims and their situation has become.
ere is a further issue raised by Geeraets and Veraart:
And, last but not least: how do we prevent the political and empirical-legal desire to support
and empower victims from transforming the legal procedure in such a way that it could start
to produce its own victims? e fundamental discussion about these questions is of great
importance and, we believe, not even nearly nished’
(Geeraets and Veraart 2021: 79).
7.2 Reducing the impact on the victim

7.2.1 The policy context for compensation and conscation
As we noted in Chapter 6, it would be wrong to think of reparation and RJ as totally new
concepts. Within modern times, in the English legal system generally—as opposed to the
criminal justice system in particular—the place of reparation has been in the civil courts.
ere have always been substantive laws and procedures by which civil liability can, po-
tentially, be established and a remedy—nancial restitution or injunctions—awarded to
the ‘victim’. However, the aims of civil and criminal law have traditionally been very dif-
ferent: the civil law gives remedies whilst the criminal law aims to punish the person who
commits one of those ‘wrongs’, which have been specically designated as a criminal of-
fence. So criminal law is activated by the state; the civil law can be activated only by an
individual wronged.
In a country with a traditional criminal justice system, such as the UK, if an action is
specied as an oence and dealt with accordingly, the victim’s remedy is to see the oender
punished by the state. is may be exactly what the ‘victim’ wants, money not being able,
in the victim’s mind, to compensate for the wrong done. If that is so, it is a considerable ad-
vantage to the victim that the resources of the state are available to apprehend and punish
the wrongdoer. On the other hand, this may not be what the victim wants.
Mounting evidence of the ineectiveness of the system of civil remedies for harm was
one factor feeding into the pressure for change in the 1960s and 1970s. It became apparent
that to use that system, the individual must successfully pass through a series of hoops,
including being able to pinpoint a named individual as causing the wrong and providing
evidence and proof, and, in addition, the person wronged must have the psychological or
nancial resources to take court action (see, for example, Genn 1988, 1999). Further, the
focus on ‘just deserts’ in sentencing encouraged a focus on restitution for victims. If the
punishment must be proportionate to culpability, then any prot from oending must be
taken into account and, in that process, returned to the victim as goods or compensation.
e issue of drug tracking also fed into the debate because of extremely high prots for
the criminal.
So the previously neglected issue of ‘the prots of crime’ became more important.
More recently, the concern with terrorist activities and the ‘laundering’ of money for such
purposes has given a further impetus to conscation provisions, and, indeed, the govern-
ment proposes the creation of a new scheme for the compensation of victims of domestic
terrorism (see Miers 2021: 340 et seq). Nevertheless, the development of new forms of
conscation and compensation to victims to be discussed in the following section were
changes in response to pressures within a largely retributivist framework and the changes
were made because they could more easily t into traditional sentencing frameworks.
Nevertheless, the thinking about victims is changing throughout Europe: see, for example,
Bosma et al. (2021).
7.2.2 The ‘fruits of crime’: restitution, forfeiture, and conscation

Legislation about the ‘fruits of crime’ can be traced back to section 28 of the e Act 1968,
which gave the court the power to order the restitution, the handing back, of stolen goods
(or their equivalent) to the victim. is power is now in s. 148 of the Sentencing Code (but
see also ss. 147–51). Courts also have a duty to conscate any proceeds, rst imposed by
the DTOA 1986 specically in relation to drug tracking, and the CJA 1988 extended it
to the benets of property obtained in relation to any indictable oence. Amendments to
the DTOA 1986 introduced detailed practical provisions to make conscation easier for
the courts to impose. e civil standard of proof is used to address the practical diculty
for the court of nding and proving what was gained in the commission of the oence.
Further amendments gave more compensation order situations and increased powers in
relation to forfeiture orders. Cases have tested the rights compliance of these provisions,
Welch (1995) nding that conscation orders are to be considered as a penalty, and so
retrospective implementation is in breach of Article 7 of the European Court of Human
Rights (ECHR).12
e Proceeds of Crime Act (PCA) 200213 consolidated some existing powers and added
new powers to ascertain the whereabouts of proceeds of crime. It requires the Crown
Court to make a conscation order against the oender in relation to any oence if the
oender was convicted or committed for sentence at the Crown Court (ss. 6(1) and (2)14
and s. 70) with the further condition is that the prosecutor asks the court to proceed under
s. 6 or the court believes it is appropriate to do so (s. 6(3)). e court is then instructed to
decide ‘whether the defendant has a criminal lifestyle’ (s. 6(4)(a)) and, if so, must decide
whether he has beneted from his ‘general criminal conduct’ or ‘from his particular crim-
inal conduct’ (s. 6(4)(b) and (c)).15 If the court decides that the oender has beneted from
either, it must decide the recoverable amount and make a conscation order (s. 6(5)). If the
victim is engaged in civil proceedings against the oender, this duty becomes treated as a
power (s. 6(6)).16
e property which may be conscated is dened as ‘all property wherever situated’
and includes money, all forms of real or personal property, and ‘things in action and other
intangible or incorporeal property’ (s. 84). Conscation orders can take precedence over
12
e Welch case has, however, been distinguished in subsequent cases. e House of Lords considered
the potential impact of ECHR Article 6 and Article 1 of the First Schedule on the conscation provisions in
s. 72AA of the CJA 1988 in Rezvi (2002), nding them to be reasonable and proportionate responses to the
public interest.
13
Schedule 12 to the PCA 2002 repealed Part VI of the CJA 1988.
14
Some of the wording was substituted by the Sentencing Act 2020: see textual amendments F1 and F2 to
s. 6(2)(b).
15
‘Criminal lifestyle’ is dened at s. 75 and ‘criminal conduct’ at s. 76.
16
e Prevention of Social Housing Fraud Act 2013 inserted a new s. 6(6A) in relation to prot made in
this context.
nes, forfeiture, and deprivation orders (s. 13),17 and there are no limits on the sum to be
conscated provided it does not exceed ‘the defendant’s benet from the conduct con-
cerned’ (s. 7(1)). e court also has a duty to order that monies obtained from the sale of
conscated property should be used to pay part or all of a compensation order if the de-
fendant would not otherwise have sucient means (ss. 13(5) and (6)).
e context for the PCA 2002 is wider than sentencing alone: the concern is with the
use of proceeds of crime and illegal laundering of money for terrorist and other organised
international crime. Part VII of the Act (which deals with money laundering) imposes
much wider—and potentially draconian—duties on the ‘regulated sector’, which includes
practising solicitors: professional advisers must disclose information to help detect money
launderers. Failure to disclose information obtained in situations not covered by the nar-
rowly dened ‘privileged circumstances’ (s. 330(10)) can amount to an oence (s. 331),
punishable by a maximum penalty of ve years (s. 334(2)). If any person is involved in
dealings in relation to ‘criminal property’ (see ss. 327–29), the maximum penalty is 14 years
(s. 334(1)). e thinking is that ‘if you nd the hoard you can catch the criminal’ (Brasse
2003: 492).
e Serious Organised Crime and Police Act 2005 introduced further relevant meas-
ures, extending powers to magistrates’ courts,18 with a limit of £10,000 on any conscation
order made by them.19 A new s. 245A in the 2002 Act means that the enforcement authority
can apply to the court for freezing orders as well as recovery orders. Sections 1–4 also ad-
dressed the problems which have arisen in relation to third-party interests in the defend-
ant’s assets: the provisions are designed to allow the criminal court to determine these
assets before a conscation order is made.20
ere will also be benets to victims when compensation results from conscation, and
where s. 72 of the PCA 2002 is used to empower a court to award compensation without
a conviction in two circumstances providing there has been ‘serious default’ by members
of specied bodies such as the police force, the CPS, and the Serious Fraud Oce. e cir-
cumstances are that either a criminal investigation was initiated but did not result in crim-
inal proceedings, or criminal proceedings did not result in a conviction and, in addition, an
application must have been made under s. 72 by a person who has suered loss in relation
to an order (see (s. 72(6)).
Earlier research—based on 155 conscation order cases and data held on the central
Joint Asset Recovery Database (JARD)—found that there was ‘a striking overall reduction
between the value of criminal benet initially assessed by Financial Investigators (FIs) and
the amount eventually recovered—a total reduction of around 95 per cent’ (Bullock et al.
2009: 1; see also Bullock 2010). Indeed, Fisher argues that it is ‘an open secret’ that PCA
2002 ‘has failed to meet its declared objective of separating serious and organised criminals
from the benets of their crimes’ (Fisher 2015: 754). A recent very detailed consultation
by the Law Commission, with 28 chapters, on Conscation of the proceeds of crime aer
conviction (2020) has the same message. It says that there had been ‘growing concern’ as to
the eectiveness of conscation as set out in the PCA 2002 ‘in disgorging the proceeds of
crime’ (para 1.3, see also Chapter 2) and their research on the North-East Circuit Crown
Courts shows the dierence between the benet assessed and the order (Figure 7.1).
17
As amended by the Criminal Justice and Courts Act (CJCA) 2015 or with words substituted by the
Sentencing Act 2020.
18
In Part 2 of the 2002 Act.
19
Although the Secretary of State may increase this amount (s. 97(1ZB)).
20
Section 5 of the SCA 2015 also substituted ‘a tougher version’ of the provisions in s. 11 of the PCA
2002: see Fisher (2015).
300
250
200
150
100
50
0
£0 to £1k >£1k to >£10k to >£50k to >£100k to >£500k to >£1m to
£10k £50k £100k £500k £1m £10m
Benefit assessed Completed Benefit = order
Figure 7.1 Number of conscation orders by total benet amount

Source: Law Commission (2020b) Figure 28 p. 671 accessible via https://www.lawcom.gov.uk/project/con
scation-under-part-2-of-the-proceeds-of-crime-act-2002/,a accessed 31 March 2022. Reproduced under the
Open Government Licence v3.0.
a
See Appendix 1 for details of the research samples.
e average value of each conscation order was £39,200 for the North-East Circuit
Crown Courts and for Liverpool Crown Court was £16,500 (Law Commission 2020b: 669),
but in all cases, the amount received was less. e Law Commission stated: ‘e consult-
ation paper has two principal aims: to identify the most pressing problems with Part 2 of
POCA 2002; and to propose and consult on the best approaches to reform the regime in
ways which serve to simplify, clarify and modernise the law’ (Law Commission 2020b: para
1.37). Clearly, there could be signicant changes in the future.
7.2.3 Compensation to the victim

Compensation orders have been available to the courts since the 1970s, and successive
governments have attempted to increase their use. With recent reviews by the Victims’
Commissioner (Victims’ Commissioner 2019) and the Criminal Injuries Compensation
Scheme (Ministry of Justice 2020d) this is again a policy issue.
Compensation by the state

Compensation paid to the victim by the state was set up in the 1960s—earlier than the
statutory scheme for criminal compensation orders. e Criminal Injuries Compensation
Board, established in 1964 and now called the Criminal Injuries Compensation Authority
(CICA),21 was the rst such scheme to be set up in Europe. is scheme does not require an
oender to be successfully prosecuted, although a sentencing court will take into account
any compensation paid by the CICA and vice versa so that a victim cannot be compensated
twice. e scheme was given a statutory basis by the CJA 1988 and is now in the Criminal
Injuries Compensation Act 1995.
See https://www.gov.uk/government/organisations/criminal-injuries-compensation-authority, accessed

21
4 October 2021.
e scheme set up in 1964 was signicant because it meant that the state had accepted
responsibility for harm done to citizens through oending. e state very rarely accepts
such responsibility, and Harris commented that it was ‘testimony to the political power of
the victim lobby’ at a time when ‘the emphasis in other areas of social life was on self-help
and personal responsibility’ (1992: 60). e European Convention on the Compensation of
Victims of Violent Crime in 1983 also recognised the duty of states to compensate victims
if other sources were not available, although for governments, the disadvantage was their
high initial cost and the relative inability of governments to control take-up (Maguire and
Shapland 1997: 217).
e Victims Commissioner’s Review also points to the fact that the maximum award
under the Criminal Injuries Compensation Scheme (CICS) is £500,000, and ‘is has
remained the same since the Scheme was rst set up in 1996’; accounting for ination,
‘£500,000 in 1996 is equivalent to £892,264.28 in 2017, though the maximum award has not
been adjusted to reect this’ (Victims’ Commissioner 2019: Para 22.3).
In its Review of the scheme, the government has noted that the current tari of injuries
‘is made up of a total of 35 bands, covering both physical and mental injuries and injuries
resulting from sexual oences’ and that awards range from £1,000 to £250,000 (Ministry
of Justice 2020d: para 39). e Review will also focus, inter alia, on the eligibility rules
(ibid: Section 3), which is overdue because in the UK, as in some other jurisdictions, there
has been a policy of restricting access to such compensation. Miers notes that ‘e complex
provisions in CICS 2012 concerning the claimant’s convictions, conduct and character re-
quire more extensive discussion than can be undertaken here,22 but they remain central to
the Scheme’s political legitimacy’ (Miers 2021: 335).
ere has also been a tendency to dene the kinds of victims that are seen as deserving
by states, and so, for example, awards may be reduced or refused if victims are not believed
to be truly blameless (Maguire and Shapland 1997: 218; Padeld 2019b).23 Padeld notes
the more recent limits of the scheme:
Its criteria have been revised many times (oen explicitly to save money) and it has long
been much criticised. Because it is underfunded, the threshold for compensation has regu-
larly been lied and the categories of potential beneciaries narrowed. Now the CICA pays
compensation only to victims of the most serious sexual and violent assaults (including to
those who have lost a close relative to homicide).
(Padeld 2019b: 265)
e Victims Commissioner’s Review, Compensation without re-traumatisation, notes that,
while CICA made decisions on over 40,000 applications in 2017–18 with payments of over
£154 million in compensation to victims of violent and sexual crime, the Oce of the
Victims’ Commissioner (OVC) ‘is frequently contacted by victims regarding their experi-
ence of applying for criminal injuries compensation’ (2019: 1). e aim of the review is,
therefore, to examine the operation of the Scheme ‘from the perspective of victims as users
of the Scheme’ and, by so doing the review aims ‘to identify any aspects of the Scheme that
act as barriers to victims’ (ibid). Many recommendations are made (ibid: 107–10), and it is
hoped they bear fruit.
22
See Miers (2021: paras 4.22–4.94).
23
In Northern Ireland, the compensation scheme had to be revised in light of the particular problems
presented by victims of terrorist violence: Criminal Injuries Compensation (Northern Ireland) Order 2002,
SI 2002/796.
Compensation orders
Section 134 of the Sentencing Code makes clear that the court can make a compensa-
tion order ‘whether or not it also deals with the oender for the oence in any other way’,
meaning that the order can be combined with other penalties.
e background to compensation orders imposed at the sentencing stage starts with the
Report in 1970 of the Advisory Council on the Penal System: Reparation by the Oender.
is led to the Criminal Justice Act 1972, which gave criminal courts the power to consider
a compensation order in relation to a conviction or oences taken into consideration, but
the power could be exercised only if the oence had caused personal injury, loss or damage
to a victim. Amendments made in 1982 meant that a compensation order could be a ‘stand-
alone’ order,24 and the Report of the Hodgson Committee (1984) led to compensation to
relatives for murder (except car death).
e legislation applicable to England and Wales has been amended by various enact-
ments since then and can now be found in ss. 133–46 of the Sentencing Code. e court
has discretion to impose a compensation order (s. 134), and the court ‘must have regard to
the oender’s means, so far as they appear or are known to the court’ (s. 135(3)). If the court
considers making a compensation order and a ne, preference should be given to com-
pensation if the oender has insucient means to pay both (s. 135(4)). Section 146 gives
details of compensation which the court now has powers to order under s. 8 of the Modern
Slavery Act 2015 and s. 4 of the Prevention of Social Housing Fraud Act 2013. Until 2013,
the maximum award in magistrates’ courts was £5,000, but this limit now applies only to
oenders under 18 years of age (Sentencing Code s. 159). e R. v Campbell (Natalie) 2015
case claried that the means of the defendant should be taken into account (see Harris
2016). However, research suggests that only around 40 per cent of the compensation was
paid in the year when it was imposed.25
e government has proposed a stand-alone scheme for the compensation of victims
of domestic terrorist oences, separate from the present arrangements contained in the
CICS 2012. e Review of the Scheme states that its preferred response ‘is the creation
of “a standalone scheme” for these victims’ (Ministry of Justice 2020d: paras 80–81) but,
states Miers, ‘to make specic provision for the “highly traumatised victims” of terrorist
violence privileges one kind of mental injury over others that might be just as traumatising’
(2021: 349, 350).
Compensation orders might seem an ideal response to the problem of victims’ dicul-
ties in gaining damages through the civil courts in relation to oences, but compensation
orders raise practical and theoretical diculties. One problem has been the underuse of
legislation. Moxon et al. found that, aer the 1988 CJA amendments to encourage their
use, the award of compensation orders had risen only marginally in both Crown Courts
and magistrates’ courts (1992: 10; see Newburn 1988 for earlier research). Scottish research
based on data collected in 1989–92 found even lower use: 4.6 per cent of persons with
charges proved (Hamilton and Wisniewski 1996). It would appear that the situation has
not changed signicantly since 2011: See Figure 7.2, focusing on the black columns at the
bottom of the Table which relate to compensation.
Some sentencers may still have diculties in assessing the amount of a compensation
order. e rst tier of courts is guided by Magistrates’ Court Guidelines (now issued by the
24
e legislation to make provision for compensation orders in Scotland was somewhat later (Criminal
Justice (Scotland) Act 1980 Part IV), coming into force in 1981.
25
According to Helen Goodman MP, Public Bill Committee, Legal Aid, Sentencing and Punishment of
Oenders Bill, Session 2010–12, Hansard col 576 15 September.
200
180
160
140
120
100
80
60
Financial Impositions in period (£ millions)

40
20
Q2
Q3
Q4
Q1
Q2
Q3
Q4
Q1
Q2
Q3
Q4
Q1
Q2
Q3
Q4
Q1
Q2
Q3
Q4
Q1
Q2
Q3
Q4
Q1
Q2
Q3
Q4
Q1
Q2
Q3
Q4
Q1
Q2
Q3
Q4
Q1
Q2
Q3
Q4
Q1
Q2
2011 2012 2013 2014 2015 2016 2017 2018 2019 2020
Compensation Victims Surcharge Costs Fines Other Criminal Court Charge
Figure 7.2 HMCTS Management Information: Financial impositions by imposition type, England and Wales Q2 2011-Q2 2021
Source: Criminal court statistics quarterly: April to June 2021 Figure 10 (source Table A2), accessible via https://www.gov.uk/government/sta
tistics/criminal-court-statistics-quarterly-april-to-june-2021. Reproduced under the Open Government Licence v3.0.
Sentencing Council26). e 1997 version of the Guidelines incorporated examples of suit-

able amounts for various injuries (see Wasik et al. 1999), and the 2003 Guidelines increased
the amount. Examples of suggested starting points current in 2021 are £1,200 for a frac-
tured index nger, £1,500 for loss of a front tooth, and £125 for a black eye.27
e amount oenders can aord to pay is assessed in line with the assessment for impos-
ing nes. So, while guidance allows compensation to be paid in instalments and stresses
that there can be some hardship to the oender in paying, there is still a limit to what can
be paid, and that limit may be less than is due to the victim. If an oender is imprisoned, he
may have no way of providing—for a long time—the means to pay a compensation order,
a fact taken into account in Sullivan (2003), where the court stated that ‘[a] compensation
order should not be made if it would subject the oender on release from prison to a nan-
cial burden he might not be able to meet without committing further crime’.
A related diculty was clearly of concern very early in the life of compensation or-
ders: Inwood (1974) stated: ‘compensation orders were not introduced into our law to
enable the convicted to buy themselves out of the penalties of crime’ (per Scarman LJ).
So, in line with this thinking, the voluntary repayment to the victim in advance of the
trial is normally accepted as a mitigating factor, but the court would require evidence
that the oender feels genuine remorse (see, for example, Dando 1996). All these di-
culties28 arise from the uneasy mix of aims arising from the awarding of what is compar-
able to a civil order for damages in a sentencing court, where punishment is expected.
Earlier Magistrates Court Sentencing Guidelines (MSCG) pointed up the diculty of sat-
isfying everyone: ‘Compensation should benet, not inict further harm on, the victim.
Any nancial recompense from the oender may cause distress. A victim may or may
not want compensation from the oender and assumptions should not be made either
way’ (Sentencing Guidelines Council 2008h, updated 2014: 155). e compensation order
ought to be a pragmatic compromise that satises judge and victim, but so far it has not
always proved to be so.
7.2.4 Victim surcharge

ere is a Victims’ Fund in England and Wales (see Home Oce 2004a: 4 for original
sources of funding) set up with the justication that existing schemes did not deliver a
good enough deal to victims whose oender was not convicted, so the resulting monies
would be ring-fenced to fund victim support organisations and schemes. e relevant law
is now in the Sentencing Act 2020 ss. 42–3,29 which means that ‘A court when dealing with
an oender for one or more oences committed on or aer 1 April 2007 must also order
the oender to pay a surcharge’ (s. 42(1)) which goes into the Victims’ Fund. However, if
the court considers
(a) that it would be appropriate to make one or more of—
a compensation order,
(ii) an unlawful prot order, and
(iii) a slavery and tracking reparation order, but
26
At http://www.sentencingcouncil.org.uk/the-magistrates-court-sentencing-guidelines/, accessed 14
August 2022.
27
Two of these gures are the same as those for 2014.
28
See Ashworth (2010: 322–7) for further discussion.
29
e origin of this is the Domestic Violence, Crime and Victims Act 2004, which inserted a new s. 161A in
the CJA 2003, requiring a court to impose a surcharge when dealing with an oender for one or more oences.
Table 7.1 Income from the Victim Surcharge 2010/11 to 2017/8

Financial Year Victim Surcharge (VS) VS contribution to the Overall Victim and
Collected *[1] Victim and Witness Witness Budget*
Budget*
2010/11 £11m £11m £48m
2011/12 £10m £10m £48m
2012/13 £11m £11m £50m
2013/14 £20m £20m £57m
2014/15 £25m £25m £86m
2015/16 £28m £18m £92m
2016/17 £31m £27m £96m
2017/18 £35m £31m £97m
*e amounts listed in the table have been rounded to the nearest £1m.
Source: 17 May 2019, UIN 252552, Written Question to the Secretary of State for Justice, accessed at https://
questions-statements.parliament.uk/written-questions/detail/2019-05-09/252552, accessed 31 March 2022.
Reproduced under the Open Government Licence v3.0.
(b) that the oender has insucient means to pay both the surcharge and appropriate
amounts under such of those orders as it would be appropriate to make,
the court must reduce the surcharge accordingly (if necessary to nil).
(Sentencing Code s. 42(3))
e CJA (Surcharge) Order 2007 xed the maximum amount of the surcharge at £15,
and it has increased steadily since (see Table 7.1). In 2020, the government announced
that there would be a 5 per cent increase to the victim surcharge which would raise ‘up to
£2 million extra annually’.30
is budget is used to fund Police and Crime Commissioners (PCCs) who commission
local support services for victims and nationally commissioned support services, includ-
ing the National Homicide Service, Rape Support Centres, and the Court Based Witness
Service. ‘Should revenue raised from the Surcharge go above the forecast amount, the ex-
cess is put towards compensating victims through the Criminal Injuries Compensation
Scheme’.31
e surcharge is now imposed in addition to all types of sentences with a graduated
maximum.32 Table 7.2 shows the amounts payable for the surcharge depending on sen-
tence type.
30
See https://www.gov.uk/government/news/criminals-made-to-pay-more-to-fund-victim-support, ac-
cessed 28 September 2021.
31
17 May 2019, UIN 252552, Written Question to the Secretary of State for Justice at https://questions-sta
tements.parliament.uk/written-questions/detail/2019-05-09/252552, accessed 14 August 2022.
32
See https://www.sentencingcouncil.org.uk/explanatory-material/magistrates-court/item/nes-and-
nancial-orders/victim-surcharge/, accessed 14 August 2022.
Table 7.2 All oence(s) committed on or aer 14 April 2020 for oenders aged 18 and older
at the date of the oence
Oenders aged 18 and older at the date of the oence
Conditional discharge £22
Fine 10 per cent of the total ne value (rounded up
or down to the nearest pound)
£34 minimum and £190 maximum
Community Sentence £95
Suspended sentence order £128 (six months or less)
£156 (over six months)
Immediate custody £128 (six months or less)
£156 (over six months)
Oenders aged under 18 at the date of the oence
Conditional discharge £17
Fine, Youth Rehabilitation Order, £22
Community Order, Referral Order
Suspended sentence order £34
Immediate Custody £34
Source: based on gures extracted from https://www.sentencingcouncil.org.uk/explanatory-material/magi

strates-court/item/nes-and-nancial-orders/victim-surcharge/, accessed 28 September 2021. Reproduced
under the Open Government Licence v3.0.
7.3 Punishment impact on the offender

7.3.1 Personal mitigation as a sentencing factor
In Chapter 3, we examined the factors that could mitigate the seriousness of the oend-
ing in question and reviewed various categories of personal factors about the oender,
which might be taken into account to mitigate the severity of a proportionate sentence (see
Chapter 3, section 3.3.2). Such mitigation has always been highly contentious but research
indicating that it plays a crucial role in the sentencing decision—done by Jacobson and
Hough some time ago—is worth reading. e researchers summarise their key ndings as
follows:
● personal mitigation takes many forms, relating to: the oender’s past; the oender’s
circumstances at the time of the oence; the oender’s response to the oence and
prosecution; and the oender’s present and future
● personal mitigation plays an important part in the sentencing decision; it can be the
decisive factor in choosing a community penalty in preference to imprisonment
● judges cited at least some factor of personal mitigation as relevant to sentencing in
almost half of the 162 cases observed in the study
● in just under a third of the 127 cases where the judge made the role of mitigation ex-
plicit, personal mitigation was a major—usually the major—factor which pulled the
sentence back from immediate custody
● in a just over a quarter of the 127 cases, mitigation including personal factors resulted
in a shorter custodial sentence.
(Jacobson and Hough 2007: vii)
Elsewhere they noted ‘marked inconsistencies’ in the grading of many factors (Jacobson
and Hough 2011: 154–6).
Other research also indicated how important mitigation is on the ‘in/out’ line—in those
‘cusp cases’ where the seriousness of the oending lies on the community/custodial sen-
tence boundary (Hough et al. 2003), while Scottish research suggested that the criminal
history of the oender can be very inuential (Tombs 2004), with the result that a relatively
minor oence could lead to custody (Tombs and Jagger 2006). Research in 2019, drawing
on two empirical studies in Scotland, comes to the same conclusion:
Courts resort to the use of short prison sentences in cases where the oender has a signi-
cant criminal record, much of which relates to non-compliance with various orders of the
court. Many of these oenders will also have other challenges, mental health issues, alcohol
or drug misuse, unstable accommodation, unemployment, et cetera.
(Hutton, 2019: 15)
Hutton argues, therefore, that ‘[r]egular summary court practitioners share an unarticu-
lated understanding of what the custody threshold means in practice’ and that ‘[r]ather
than drop the term custody threshold, sentencing policy should articulate it more clearly’
(ibid: 16).
e implication might be, therefore, that there needs to be a greater awareness of the
importance of personal mitigation if more ‘cusp cases’ are to be moved down the penalty
ladder. Lovegrove, using research in Australia, found a much greater propensity to approve
of mitigating factors than has been found in surveys of public opinion (Lovegrove 2011).
However, as we saw in Chapter 3 (section 3.3.2), there is no Sentencing Council guidance
on personal mitigation as such. e General guideline: overarching principles (Sentencing
Council 2019b)33 has a long list which mixes personal mitigation and mitigation of serious-
ness. e guideline on the Imposition of Community and Custodial Sentences (Sentencing
Council 2017a), in answer to the question ‘Is it unavoidable that a sentence of imprison-
ment be imposed?’ specically states that ‘For oenders on the cusp of custody, imprison-
ment should not be imposed where there would be an impact on dependants which would
make a custodial sentence disproportionate to achieving the aims of sentencing’ (2017: 7).
e recent guidance for magistrates’ courts on common assault oences, for example,
lists the following mitigating factors: no previous convictions or no relevant/recent convic-
tions’, remorse, good character and/or exemplary conduct, signicant degree of provoca-
tion, age and/or lack of maturity, mental disorder or learning disability (where not linked
to the commission of the oence), sole or primary carer for dependent relative(s), deter-
mination and/or demonstration of steps taken to address addiction or oending behav-
iour, and serious medical conditions requiring urgent, intensive or long-term treatment
(Sentencing Council 2021b: Step 2).34 e development of guidelines with specic lists is
helpful but—in terms of evaluating the justication and in terms of sorting out personal
33
For sentencing oences for which there is no oence-specic sentencing guideline and for use in con-
junction with oence-specic sentencing guidelines.
34
e previous guideline was Sentencing Council 2011a.
from those aspects which mitigate oence seriousness—it is a pity that the mitigation of
seriousness and personal mitigation are placed in the same list. is is especially so, as
Ashworth and Kelly point out (2021: 181), when the eect of seriousness can vary ac-
cording to the seriousness of the oence.
In Chapter 3, we also noted that it is possible but not easy to justify taking personal miti-
gation into account. ‘Mitigation, like aggravation, is usually, though not always, based on
retributive reasoning, which concludes either that the oender’s culpability was not as great
as the nature of the oence suggested or that . . . he will suer more than most oenders
from the normal penalty’ (Walker 1999: 95). However, this leaves the crucial question as to
when and how far mitigation should be applied. Should it include issues stemming from
socioeconomic factors, race, and gender, for example?
So far, in our analysis of sentencing and punishment, we have looked only tangentially
at the question of the impact of a particular punishment on an individual oender (but
see Chapters 4, 5, and 10 for general eects of deterrent, incapacitative, and rehabilitative
penalties). In Chapter 6, section 6.4, we said that the oender who has been deemed su-
ciently mentally ‘well’ to plead or to be found guilty but is suciently mentally ill to come
within the relevant provisions of the Mental Health Act (MHA) 1983 raises questions as to
the rationale for taking mental health into account. In section 7.2.2, we also focused on the
increasing use of conscation orders so that the punishment is not negated by the oender
beneting from the oending. Considerations of space mean we cannot discuss all forms
of personal mitigation in this text but will focus on mitigation relating to the impact of
punishment on the oender.
In the next two sections, we will review arguments for and against the taking account of
mitigation relating to the impact of punishment on the oender and the oender’s family
and in section 7.4, we will focus on the approach of the courts to physical disability, em-
ployment, old age, illness, vulnerability in prison, and family circumstances as mitigation.
At the end of this chapter, we will focus on the issues of impact in relation to nancial pen-
alties, but this is still a selective discussion of the many aspects of justice and fairness raised
by the question of sentence impact.
7.3.2 ‘Equalising’ impact

Current policy focuses on what will deter or reform the oender most eectively, with ‘just
deserts’ as the dominant sentencing principle. Consequently, what Shapland (1981: 55)
categorised as ‘future personal circumstances’ present particular diculties for retributiv-
ist theory and also in relation to public opinion. e Report for the Sentencing Council
on public knowledge of, and condence in, the criminal justice system showed that seven
in ten of the English and Welsh public believed sentences are too lenient (Marsh et al.
2019: 24).35 So if the public needs to ‘see’ equality of treatment for similarly serious oences,
then an outcome that ‘looks’ too lenient (or too severe) in comparison to known cases gen-
erates a sense of injustice and undermines the legitimacy of the sentencing system. is
approach to equality in sentencing assumes the oender is not a variable in this calcula-
tion: the impact of the punishment is the same for all oenders, or any dierential impact
is irrelevant.
Yet it is possible to argue that a retributivist approach to sentencing does not depend on
an end product of a xed amount of punishment for a particular amount of seriousness but
can, instead, focus on the ‘quality’ of the experience rather than simply the quantity. is
35
See also the references given on that page.
form of equal treatment means that punishments for the same oence may look dierent,
however, and so the process may lack legitimacy, particularly to those without knowledge
of the individual oender concerned. If, on the other hand, it were accepted that the aim
of retributivist sentencing was a just amount of impact on a particular oender or class of
oenders, then the focus of attention would shi to the selection and justication of factors
in, say, the life and health of an oender that should be allowed to inuence the sentencer
in determining impact. In sentencing policy the nancial means of the oender has been a
legitimate factor to take into account—and the courts routinely do so—in the calculation
of nancial penalties.36
ere are also utilitarian arguments for taking impact into account. For the utilitarian,
the calculation of the ‘pain’ of punishment is aimed at assessing the likely eectiveness of
punishment. So Bentham was concerned with the issue of impact in relation to sentence
outcome: ‘a punishment which is the same in name will not always either really produce,
or even so much as appear to others to produce, in two dierent persons the same de-
gree of pain’ (Bentham 1789: 169). erefore, in determining the quantity of punishment,
Bentham argues, we should take account of the ‘circumstances inuencing sensibility’, and
he species 32 such circumstances, including rmness of mind, strength of intellectual
powers, and sympathetic biases (Bentham 1789: 52).
While Bentham’s extensive list could not be put into operation, more recent commenta-
tors have focused on whether an oender will be able to undertake the proposed sentence
eectively. e utilitarian is also frugal: the amount of punishment should be the least
possible and the most cost eective for the purpose. erefore, if an eective outcome is
unlikely, this would justify reducing the use and amount of imprisonment or not imposing
particular community penalties if it were the case that, for example, the very old or very ill
were not capable of responding to rehabilitation programmes or were not in a position to
reoend. So Carlen, noting that many oenders have disadvantaged backgrounds, com-
mented that clients might be ‘unlikely to complete any [community] order involving home
calls, curfews or house arrest’ (1989: 22). Further, a lack of substitute carers for their chil-
dren might preclude parents from being oered a community service programme, as might
lack of public transport to some community schemes.
ere is a further issue regarding the impact of punishment which Lacey has called ‘the
problem of uniformity of application’ (1998: 404): like cases are not treated alike if only a
small proportion of oenders are detected, arrested, prosecuted, and sentenced and Pettit
and Braithwaite used this as a justication for the dierential treatment of oenders on
conviction (1998: 330).
If punishment impact were to be taken into account, it would be possible to isolate in-
stances where punishment could be seen as disproportionate and unjust. In particular,
‘full-time’ deprivation of liberty can exacerbate or impose suering stemming from per-
sonal circumstances or characteristics. ose who are very young, ill, old, or disabled, and
those with family members who depend on them, may suer greater physical and psycho-
logical harm from a lack of freedom than other inmates. In addition, those whose oend-
ing attracts the most social denunciation, notably those who sexually assault or murder
children, also face a high risk of ostracism or harm from their fellow prisoners. For all these
types of oenders, their vulnerability is likely to make the punishment disproportionately
worse for them. As Tonry has observed:
Two years’ imprisonment in a maximum security prison may be a rite of passage for a Los
Angeles gang member. For an attractive, eeminate twenty-year old, it may mean the terror
36
With the exception of xed penalties: see section 7.5.5 in this chapter.
of repeated sexual victimization. For a forty-year-old head of household, it may mean the
loss of a job and a home and a family. For an unhealthy seventy-ve-year old, it may mean
a death sentence.
(Tonry 1996: 19)
7.3.3 Arguments against impact mitigation

Despite the arguments we have summarised in section 7.3.2, impact mitigation does raise
problems for retributivism and utilitarianism. For retributivists, the harm caused to the
victim is not lessened by the social origins or personal problems of the oender, even
though we might feel compassion or sympathy for their circumstances. Reductions of sen-
tences for such oenders would seem to strike at the retributivist principles of proportion-
ality, equality of treatment of oenders, and the presumption of human agency (see Easton
2008c). Varying punishments on impact grounds would bring arbitrariness back into the
punishment process, violate both the principles of proportionality and parity, and make it
harder to maintain the gap between serious and less crimes.
While retributivists recognise the existence and eects of social inequality, the answer to
the problem of inequality is deemed to lie in social welfare rather than variations in senten-
cing. So, for Hegel (1832), social welfare would be used to mitigate the eects of the market
rather than to retreat from the key principles of retributivist punishment. Mitigating for
vulnerability because of threats from other prisoners would also be problematic as the
worst crimes, for example, against children, are likely to attract the most hostility from
others, so it would violate the proportionality principle if those guilty of the most shocking
crimes were given shorter sentences. Instead, the focus should be on maintaining a safe
environment in custody. Sentence reductions should also not be made for age or inrmity
unless there is a complete destruction of capacity.
For modern retributivists, such as von Hirsch (2019), the best way to deal with this issue
of social deprivation is through social policy combined with a limit on overall senten-
cing levels through the setting of appropriate anchoring points. Von Hirsch and Ashworth
(2005) consider the use of compassionate mitigation in Sweden and whether it could be
extended to social deprivation but conclude that it would raise both practical and political
problems.37 e injustice of punishing someone who steals in extreme circumstances, such
as the ctional Jean Valjean,38 would be dealt with under the criminal law of necessity, but
the levels of deprivation encountered in the modern UK sentencing context are usually far
removed from the levels of poverty and deprivation of nineteenth-century France, as de-
scribed by Victor Hugo, and so the solution for retributivists still lies in social rather than
penal policy. As von Hirsch notes, whilst modern states should try to reduce poverty and
inequality, ‘Sentencing policy is not a good tool for reducing criminality or promoting
wider social justice’ (von Hirsch 2019: 122).
Furthermore, a desert-based approach, as we argued in Chapter 3.4, can oer a fairer
approach, based on respect for the individual’s dignity and right to autonomy, and ex-
ercise restraint on penal excess. However, Henham (2021) is sceptical about whether a
rights-based approach oers an adequate alternative to compensatory sentencing when
37
Sweden, in fact, has one of the lowest rates of material and social deprivation in the EU, although the g-
ures are worse for those born outside Sweden than inside. Statistics Sweden 14 October 2020. https://www.scb.
se/en/nding-statistics/statistics-by-subject-area/living-conditions/living-conditions/living-conditions-surv
eys-ulfsilc/pong/statistical-news/living-conditions-surveys-ulfsilc-2019/, accessed 29 July 2021.
38
A character in Les Misérables, a novel by Victor Hugo. See also Renaud (2007).
the perception of the current system is discriminatory, raising problems of legitimacy. He

is critical of what he describes as a neo-liberal retributive ideology which takes an individu-
alistic approach rather than focusing on the relationship between criminality and social
disadvantage (Henham 2018). He sees current sentencing policy as prioritising retributive
justice over utilitarian and humanitarian objectives, reinforcing the social exclusion and
alienation of disadvantaged communities. For Henham, the state has a moral obligation to
ensure that sentencing policy promotes social justice, so it should aim to reinforce commu-
nity bonds and shared social values. He, therefore, argues for more discretion for sentenc-
ers to facilitate the changes he advocates and a greater role for RJ and rehabilitation. But it
could be argued that Henham overestimates the inuence of retributivism as others, such
as Ashworth (2017), would argue that the inuence of proportionality was swamped by
other factors (see Chapter 3.4.1).
Utilitarians would also be concerned if the deterrent value of penalties were reduced on
the ground of deprivation or vulnerability. For Bentham (1789), the principle of utility took
precedence over principles of sympathy and antipathy as introducing feelings into pun-
ishment may lead to disproportionate punishment, both excessive and lenient. However,
later writers in this tradition take a more nuanced approach. Bagaric (2015) concludes that
social disadvantage should qualify for a sentencing discount only to those who have spent
most of their lives in poverty, and would be justiable because poverty limits choices and
would warrant, at most, a 25 per cent reduction. e discount would only be for less serious
crimes, property, and drug crimes, and not serious sexual and violent oences. Deterrence
would not necessarily be undermined as it is well established that the severity of punish-
ment has less impact than the certainty of punishment—as we saw in Chapter 4.
Alternatively, the problem could be addressed by removing the recidivist premium
for past oences as poorer defendants are more likely to have prior convictions, and in
that sense, ‘poverty should not be an aggravating factor in sentencing’ (Bagaric 2015: 50).
e issue is considered in relation to Australia and the United States, where Indigenous
Australians and African Americans, respectively, suer higher rates of poverty and im-
prisonment. Social policy changes would also be necessary, Bagaric argues, especially
increased investment in education as completing a high school education reduces the like-
lihood of imprisonment.
ere are also issues of public protection arising from impact mitigation. If socially de-
prived oenders are more likely to commit crimes in their local areas and poorer com-
munities are at greater risk of victimisation, then mitigating for social deprivation means
that crime in deprived areas is taken less seriously, and those communities are given less
protection.
7.4 Impact as mitigation in practice

7.4.1 The approach of the courts
In practice, the defence may argue that the particular impact of the sentence on the of-
fender or oender’s family or business should be treated as a mitigating factor and sen-
tencers, from magistrates up to the Court of Appeal, have accepted such arguments from
time to time.39 Some sentencing guidelines have included an oender impact factor in the
39
See, for example, Shapland (1981) for research on the process of, and speeches in, mitigation; Walker
(1999: 100–3) on the ‘exceptional circumstances’ justications for suspending a prison sentence; Jacobson and
Hough on the inuence of physical illness and employment issues in the Crown Court (2007: 36–7).
assessment of seriousness: for example, in the Causing Death by Driving Guideline, ‘Injury
to the oender may be a mitigating factor when the oender has suered very serious
injuries’ and ‘Where one or more of the victims was in a close personal or family relation-
ship with the oender, this may be a mitigating factor’ (SGC 2008c: 5). Likewise, the e
Guideline includes ‘Serious medical condition requiring urgent, intensive or long-term
treatment’ and ‘Sole or primary carer for dependent relatives’ in the list of ‘Factors redu-
cing seriousness or reecting personal mitigation’ at Step Two of the ‘General e’ section
(Sentencing Council 2015a: 7).40
However, as noted in Chapter 3, there is no duty on the sentencer to take impact into
account or for mitigation to have any precedence over factors relating to seriousness, and
the Causing Death by Driving Guideline specically noted that ‘the degree to which the
relationship inuences the sentence should be linked to oender culpability . . . mitigation
for this reason is likely to have less eect where the culpability of the driver is particularly
high’ (SGC 2008c: 5). Further, if impact operates as a mitigating factor, it can only lead to a
reduction in sentence; it cannot operate to increase a sentence to allow for greater equality
of impact across the board.
Arguably, the Court of Appeal has tried ‘to bring some order to an area of law which may
appear as chaotic as some of the lives under review’ (Piper 2007: 142). However, reported
appellate cases suggest that the rst concern of judges is not to downgrade a message about
seriousness. So, if the court is dealing with what it considers to be serious oending, it is
anxious not to reduce the potential deterrent eects or the amount of censure by reducing
a sentence. Conversely, if the oending is less serious, the courts are more likely to take into
account mitigation based on impact. Tata’s research would also suggest that mitigation is
more likely to be taken into account if the oender freely admits guilt (Tata 2019).
If impact is taken into account, the courts explicitly justify this and generally explain
the reduction as an exceptional act of mercy. For example, the following statement by Lord
Lane CJ in Attorney General’s Reference (No. 4 of 1989) (1989) was endorsed later by Sir Igor
Judge when declining to increase the sentence on an 81-year-old sex oender: ‘Leniency is
not in itself a vice. at mercy should season justice is a proposition as soundly based in law
as it is in literature’ (Attorney General’s Reference No. 73 of 2006 (2006)). In the following
case, mitigation had inuenced the outcome and led to an Attorney-General’s Reference
(Gregson (John)) 2020), but it was argued that the mitigation aected culpability: ‘In par-
ticular, his service in the armed forces and consequent psychological diculties resulting
from a grenade attack in Afghanistan provided a link to his problems with alcohol’, and the
appeal was allowed. is case had what has been referred to as ‘decits and assets-based
mitigation’ (Vartkessian 2020: 857): the oender’s problems or illnesses and the oender’s
good points or deeds.
If the courts are, arguably, now more constrained by the sentencing guidelines such that
‘mercy’ becomes less appropriate, then, in the current sentencing climate with higher levels
of seriousness accorded to particular oences and factors, it is now less likely that mitiga-
tion based on impact will inuence sentencing.
7.4.2 The offender: vulnerability and age

Courts have been faced with the issue of added impact of punishment stemming from the
personal vulnerability of a prisoner, whether because of old age, youth, or the expected
‘dangers’ of prison life.
40
Available online at https://www.sentencingcouncil.org.uk/oences/magistrates-court/item/the-gene
ral/, accessed 14 August 2022.
Old age
When this is allowed as mitigation, the justication is on the grounds of physical inrmity
and also of shorter life expectancy. In a case concerning repeated child cruelty in the 1960s
and 1970s where the applicant oender was 75-years-old, had been in hospital since being
sentenced to prison, and had recently been diagnosed with inoperable lung cancer. Picken
J gave the judgment:
Even in the light of what is now known about the applicant’s life expectancy, we have con-
cluded that immediate imprisonment in the applicant’s case is appropriate. We do not re-
gard this as an exceptional case in which it is appropriate to show mercy in such a way as to
result in the imposition of a suspended prison sentence.
(R v Taylor (William) (2015) para 10)
However, the court said, ‘We have further reduced the sentence to 12 months in the light of
what is now known about the applicant’s medical condition’ (para 11). Clearly, for elderly
prisoners, the mitigation for age and ill health (see section 7.4.3) overlaps.
e overriding importance of oence gravity is also evident in a decision on the min-
imum term to be served by an elderly prisoner on an indeterminate sentence. Bata (2006)
was an unsuccessful application by an 80-year-old prisoner for a reduction in his ten-year
minimum term, having been sentenced to life for murder imposed for shooting at close
range a person on his neighbouring allotment. e judge believed that the ten-year min-
imum already incorporated a considerable reduction for old age and illness, given the ser-
iousness of the circumstances of the oending.
e eect of the increasing number of long determinate and indeterminate sentences,
together with this cautious approach to reducing the sentence of a serious oender on
account of old age, has had an eect on the composition of the prison population because
prisoners over 60 are the fastest growing age group (Prison Reform Trust 2022: 9) in a
prison population that rose substantially between 2002 and 2020 (House of Commons
Justice Committee 2020c: 5). e threshold for an ‘older prisoner’ in the Prison Service
is 50, but the Prison Service houses prisoners much older than this. In December 2016,
there were 234 prisoners aged over 80, with 14 in their 90s (House of Commons Justice
Committee 2020c: 11). Many older prisoners are convicted for sex oences, including his-
toric, that is non-recent, sex oences, which entail longer sentences.
Older prisoners are also more likely to suer from chronic health problems and physical
disabilities, which means it is dicult to navigate the prison environment, especially in
older prisons. ey may also be more vulnerable to bullying and may experience particular
problems if they are held far from home, as this will make it hard for them to maintain
family ties if their visitors are also older (see Chapter 6, section 9.8.7; Easton 2018b). If eld-
erly prisoners suer the pains of imprisonment more sharply than younger prisoners, then
imprisonment may be disproportionate for very elderly or inrm oenders (see Chapter 9,
section 9.8.7).
e problem of elderly prisoners has been highlighted by prosecutions of Nazi war crim-
inals, and we saw in Chapter 4 that proceedings are still being initiated against octogen-
arians and nonagenarians for their complicity in serious crimes. is issue was considered
by the European Court of Human Rights in Papon v France App No 64666/01 (7 June
2001). Papon, a former ocial in Vichy France, was 88 when he was sentenced to ten years
for aiding and abetting crimes against humanity relating to his involvement in the arrest
and deportation of French Jews to their deaths in Nazi Germany in the 1940s. Papon’s ar-
gument that, in view of his age and inrmity, his imprisonment breached Article 3 of the
Convention was rejected. e court has taken the approach that health problems can be
managed in prison or dealt with by temporary release for medical treatment or compas-
sionate release in appropriate cases.
Another case was that of John Demjanjuk, extradited in 2009 from the United States to
Germany on 27,900 counts of being an accessory to murder, based on allegations of his in-
volvement, as a camp guard, in the murder of prisoners at Sobibor Concentration Camp in
Poland in 1943. At the time of his extradition, he was 89 and in poor health, but at his trial
in Munich in 2011, he was convicted and sentenced to ve years in prison. He was released
pending appeal and died in a nursing home in 2012. Since then, Bruno Dey and Oskar
Groening have been convicted, and in 2021, a 95-year-old former secretary at Stutthof
camp, now living in a care home and also a 100-year-old former guard at Sachsenhausen
camp, was charged with complicity.41
e issue of elderly imprisonment, of course, aects many oenders other than war
criminals, and the approach has been to focus on making the prison environment more
suitable for older prisoners rather than reducing sentences. Prisons in the UK have a duty
under the Equality Act 2010 to take the needs of older prisoners into account, and these
issues will be considered further in Chapter 9. However, in cases of terminal illness, pris-
oners may be granted compassionate release by the Secretary of State if there is a risk of
harm from ongoing imprisonment, a low risk of recidivism, benets from release, suitable
arrangements can be made for care in the community, and they are expected to die very
soon (which is usually understood as within three months).
Vulnerability
Vulnerability in prison is not always taken into account. In Varden (1981), the oender—a
man of 71 who had unlawful sex with a 13-year-old child with severe learning diculties—
would inevitably be spending his sentence under Rule 45 of the Prison Rules 1999 (for-
merly R.43), where a prisoner is segregated for his own protection. is was taken into
account as a mitigating factor, and he was given a reduced sentence, but other cases at that
time held that the impact of Rule 45 was not relevant (see Parker 1996). Similarly, in Nall-
Cain, a sentence of ve years imposed on Lord Brocket was upheld because ‘a defendant’s
treatment by other inmates is not generally a factor to which this court can have proper
regard’ (1998 at 150, per Rose LJ). However, in R (Bourgass & Anor) v Secretary of State for
Justice [2015], which involved older and younger prisoners, the Supreme Court allowed
the appeals and granted a declaration that the prisoners’ segregation beyond the initial 72
hours was unlawful, as it was not authorised.42
Younger offenders
ere are also issues around age and vulnerability in relation to younger oenders (see
Chapters 6 and 11). When mitigation takes youth into consideration, it rests on the notions
of reduced culpability and loss of precious ‘developmental time’. Research has also shown
that for young prisoners, time passes slowly (Cope 2003).
Cases suggest that the courts consider ‘youth’, as with other impact mitigation, of less
signicance if the oending is very serious. In Attorney General’s Reference (Nos. 21 and 22
of 2004) (2004), for example, where the oenders were aged 17 and 19, the court stated that,
41
For further information on these cases, see https://www.theguardian.com/world/2021/feb/05/former-
secretary-at-nazi-camp-charged-over-of-10000-people and https://www.theguardian.com/world/2021/feb/
09/man-100-charged-in-germany-over-3518-nazi-concentration-camp-murders both were accessed 19
September 2022.
42
See https://howardleague.org/news/solitaryconnement/, accessed 14 August 2022.
for such types of oending (robbery late at night on public transport as part of a group), a
custodial sentence must be imposed ‘save in the most exceptional cases, such exceptions
arising, for example, by reasons of extreme youth’ and no reduction was given for age (see
also, Attorney General’s Reference (Nos. 39, 40 and 41 of 2005) 2005). e riots in several
towns in England in the summer of 2011 also led to publicity for many cases of ‘tough’
sentencing, which appeared to take little account of (young) age (see, for example, Piper
2011). e Police, Crime, Sentencing and Courts (PCSC) Act 2022 also changes the start-
ing points for the minimum term to be served for those under 18 because, as the Research
Brieng points out, it is ‘based on the adult system, and depending on seriousness and age’
(House of Commons Library 2021).
However, there has been an improvement in relation to the number of minors held in
custody which fell by 68 per cent between 2010 and 2020 (Youth Justice Board/Ministry
of Justice 2021a: 2), although the average custodial sentence length for children increased
in that period from 11.3 to 18.6 months. e treatment of children in custody remains of
concern in some institutions, which is a factor in sentence impact. Restrictions arising
from the pandemic also meant more time spent in cells, and the Urgent Notication pro-
cedure was invoked in relation to Rainsbrook Secure Training Centre in 2020, where some
children were held eectively in solitary connement for 23.5 hours per day (see HMCIP
2021: 71).
e Prison Inspectorate also examined 12–18-year-olds’ perceptions of their experi-
ences in Secure Training Centres (STCs) and Young Oender Institutions and found that
there was still insucient time spent outside their cells; over one-third had felt unsafe at
some point and two-thirds reported being subject to physical restraint and separation
(HMIP 2021c). e Inspectorate found that none of the STCs reviewed was good enough,
and problems of violence and self-harm remained at an all-time high in YOIs. e treat-
ment of children in custody will be considered in more detail in Chapter 11.
Young adults
For reasons of space, we have not discussed the age category of 18–20-year-old oenders
in great detail in this book, although they are dealt with briey in Chapter 6 (section
6.3.2) and Chapter 11 (section 11.4.5). ey were ignored by the reforms of the Crime and
Disorder Act 1998, which apply to those under 18, and those aged 18 to 20 have been neg-
lected since.43
However, this age group also faces issues that have an impact on their lives in prison. An
inspection found higher rates of victimisation and self-harm among the 18–20-year-olds
(HM Chief Inspector of Prisons 2011b: 27–8) than for other age groups, and the Harris
Review (2015) of self-inicted deaths of young adults in custody is also of concern. e
Review looked in detail at the lives of 174 young people aged 18–24 who died between
April 2007 and December 2013 and stressed the vulnerability of young adults, some of
whom had suered bereavements, spent time in foster and residential care, had experi-
enced abuse, and, in some cases, had mental health problems (Harris 2015). e Review
also emphasised the fact that young adults are maturing until their mid-20s, which aects
their behaviour and ability to cope when apart from their families. Harris argues that ‘ma-
turity should be a primary consideration in making decisions relating to . . . where a young
adult should be accommodated’ (Harris 2015: para xxi), that prison should be considered
as a last resort and that those in custody need better support from specialist ocers trained
to deal with young adults, more purposeful activities, and greater protection from bullying.
43
See, for example, Lyon (2003: 28), a brieng by the Prison Reform Trust (2007) and Emmanuel et al.
(2021).
e Report of the House of Commons Justice Committee (2016b) on the treatment of

young adults in the criminal justice system also stressed the need to give more weight to the
psychological and neurological maturation of this group and advocated a presumption that
young adults up the age of 25 are still maturing. e Report noted that while the Sentencing
Council includes age and maturity as mitigating factors in its sentencing guidelines, the
problem is that, in practice, sentencers may not have enough information to assess ma-
turity or give eect to it, other than in cases of extreme immaturity. Nevertheless, in a case
in 2020—R v Green (Jaiden)—the Court of Appeal reduced the sentence on an oender
who committed the oence ve days aer his 18th birthday because the discount for his
immaturity had not been sucient.
In custody, young adults are more likely to engage in prison violence and are vulner-
able to bullying, which may be a factor in the high rate of self-inicted deaths in prison in
this age group, and they are also vulnerable because of separation from their families. e
lack of support given to young oenders once they reach 18 has been likened to falling o
a cli (House of Commons Justice Committee 2016b: para 90). e Justice Committee’s
recommendations include better screening to assess psychosocial maturity in prison and
community settings, specialist sta in prisons, and the extension of statutory support by
appropriate agencies to the age of 25. e Committee also recommended an evaluation of
the impact of maturity as a mitigating factor in sentencing and consideration of the exten-
sion of detention in young oender institutions up to the age of 25 (House of Commons
Justice Committee 2016b: 4).
A thematic review of outcomes for young adults in custody found that outcomes for
them were worse than for those over 25 years of age (HM Inspectorate of Prisons 2021b).
Young adults reported poorer relationships with sta, were more likely to be involved in
violent incidents and to be subject to adjudications, and ‘reported more negatively than
adults on their experiences in custody’ (ibid: para 4.25). e poor provision also dispro-
portionately aected BAME prisoners, who are overrepresented in the young adult prison
population. e Inspectorate found that young adults are still not treated dierently from
adults, although a maturity screening tool has been created, as well as a resource pack
designed to deal with low-level maturity but not enough young adults have access to it.
e Inspectorate argues for a national strategy to meet the needs of this group for whom
there would appear to be little impact mitigation. e situation in England and Wales is
contrasted with the better approach in Northern Ireland, where young adults are held in a
separate establishment and there is a specic and properly resourced response.
7.4.3 Illness and disability as mitigation

ere are also issues for sentencers raised by the resource diculties faced in relation to
the growing numbers of the ill and disabled in prison. In 2009, 15 per cent of prisoners
reported having a disability (HM Inspectorate of Prisons 2009a), and more recently, the
Prison Reform Trust reports that 34 per cent of people assessed in prison in 2017–18 said
that they had a learning disability or diculty (2021c: 32). An inspection of oenders
with a learning disability found that identication of oenders with learning disabilities
in prison remained a problem, and as a result, the needs of people with learning disabil-
ities were oen missed (HM Inspectorate of Prisons/HM Inspectorate of Probation 2015).
ese problems of screening and the failure to make adjustments extended across a wide
range of agencies, as noted by a more recent review of the evidence on neurodiversity and
the criminal justice system (Criminal Justice Joint Inspection 2021a). It found that neuro-
diversity may not be recognised and those with these disabilities are more likely to be held
on remand, plead guilty inappropriately, and nd it dicult to comply with conditions on
community supervision or on licence. ey may also struggle with elements of impris-
onment, including noise and cell sharing, which may result in challenging behaviour and
consequent sanctions.
Prisons have a duty not to discriminate against prisoners on the grounds of disability
under the Equality Act 2010, so the issue of accessibility to resources and treatment is im-
portant, and the Commission for Equality and Human Rights must enforce duties under
that Act.44 e Chief Inspector of Prisons has noted that prisoners with disabilities ‘re-
ported signicantly more negatively about feeling safe than those without disabilities’
(HM Chief Inspector of Prisons 2021: 11). In some of the prisons inspected, access to the
showers was very dicult for those with mobility issues.45
All these issues, if known, could be used in mitigation, but appellate cases reveal mixed
approaches to the impact of illness and learning disabilities. e guideline judgment given
in Bernard (1997) makes clear that a medical condition that might in the future aect life
expectancy does not preclude a prison sentence (see Ashworth and Player 1998: 256–61)
and R v Taylor (William) (2015) conrmed the principles in Bernard. Cases before and aer
Bernard suggest, however, that a high risk of (earlier) death because of prison conditions
and facilities may be accepted by the court as an excessive impact of punishment that mer-
its a reduction in sentence.46 It seems to be relatively rare, however, for the Court of Appeal
to nd it appropriate to downgrade a message about seriousness by taking into account
factors impacting on the prison experience.47
A case involving a disabled prisoner also makes clear that the courts will only apply
‘mercy’ when, as in equity, the claimant has clean hands and has not ‘traded’ on his dis-
ability. Indeed, the facts might aggravate seriousness, as in Kesler (2005), where Ouseley J,
having noted that ‘[h]e used to give the impression of innocent behaviour by going out with
his dog to collect the drugs, and because of his disability had a stick, but it was hollowed
out so that he could keep his drugs in it’ (at 8). However, a case relating to an oender with
learning diculties and a very low IQ who had been involved in a bomb hoax—R v Perera
(Rohan) [2015]—did take those factors into account and substituted a suspended sentence
with a period of supervision.
7.4.4 Loss of employment

Similar mixed approaches have been taken in relation to the expected loss of employment
resulting from conviction or imprisonment. In Hubbard (2002), a case concerning abuse
of trust in relation to a sexual oence, the Court of Appeal upheld a two-year sentence,
apparently not taking into account the devastating personal consequences for the teacher.
Again, the seriousness of the oence means the loss of employment is not given any weight.
Where the oence is less serious and where job loss is accompanied by other extensive
mitigation (Dockerill (1988); O’Hara (2004)), it may be taken into account, and research
also provides ‘some evidence that a defendant’s steady job, or involvement in studies or
vocational training, can be a mitigating factor’ (Jacobson and Hough 2007: 37; see also
Jacobson and Hough 2011: 153 Table 8.4).
44
For research on this group, see, for example, Crawley and Sparks (2005, 2008).
45
e problems facing prisoners with disabilities will be further considered in Chapter 9, section 9.8.5.
46
See, for example, Green and Leatherbarrow (1992); Avis, omas, Torrington, Marques and Goldsmith
(1997); R v Arbuthnot (Audrey) (2004).
47
Courts might, however, refer cases to the Home Secretary for the exercise of the royal prerogative, but
the recent Commons Brieng Paper on the Royal Prerogative did not mention criminal cases: see https://com
monslibrary.parliament.uk/research-briengs/sn03861/, accessed 12 October 2021.
Loss of employment is also more likely to be taken into account if it impacts on third
parties, whether they are family members or employees of the oender’s business. For ex-
ample, in Anthony James Stevenson (2015), the appeal was upheld largely because of the fact
that insucient weight was given to the mitigation:
e defendant was in full time employment working as a Team Leader at a local factory pro-
ducing automotive components, he was the sole bread winner for the family. He had found
employment within two months of his release from a custodial sentence in June 2009 and
had been in full time work since that date, he married in 2011.
(R v Anthony James Stevenson 2015: para 9)
In addition, his wife was ill and had had recent operations, so relied on Stevenson to sup-
port her and look aer the children.
ere is, however, an ambivalence which is reected in public opinion, as Tonry noted
some years ago: ‘e relevance of employment to sentencing varies with circumstances.
Most people believe it is irrelevant that a wealthy securities law violator will, if imprisoned,
lose his or her job ... People have widely divergent views on whether a lower-middle-class
head of household’s job loss, if imprisoned, is relevant’ (1996: 22–3). ere is also the argu-
ment that ‘taking prospective job loss into account unintentionally discriminates against
the unemployed who are unfortunate enough to have no job to lose!’ (Levi 1989: 432).
Even if loss of employment is not a mitigation issue, employment status may well aect
the choice of sentence. Crow and Simon (1987) found that for the unemployed, the move-
ment could be up or down the scale of penalties and that the eect of employment status on
sentence was statistically small, but research in the early 1990s concluded that ‘the senten-
cing of unemployed oenders diers considerably from the sentencing of those in employ-
ment’ (Home Oce 1994a: para 17).
Unemployment is another dimension of the nancial circumstances of the oender
which are considered in relation to the issue of compensation orders (see section 7.2.3),
but the clearest impact of wealth and poverty is in relation to nes (see section 7.5). It is
also worth noting that many people were unemployed before conviction (see Ministry of
Justice 2014h: Table A1.3, p.34), and the research, using a longitudinal cohort study from
2005 to 10, found that ‘e factor most strongly independently associated with increased
likelihood of employment aer release from custody . . . was employment before custody’
(ibid: 3).). It is also worth noting that research suggests that ‘Too many people end up in
the prison system on remand or recall to prison because of inappropriate accommodation’
(Cooper 2013: 8).
7.4.5 Impact on the offender and offender’s family

e impact of punishment in this section is a dicult one because ‘in practice, punishment
is a product of the interaction between oender and the imposed sentence. Evidently, we
cannot assume that punishment holds the same meaning to every person’ (van Ginneken
2017: 74). Further, as Hoskins notes:
Convicted oenders face a host of so-called “collateral” consequences: formal measures
such as legal restrictions on voting, employment, housing, or public assistance, as well as
informal consequences such as stigma, family tensions, and nancial insecurity. ese con-
sequences extend well beyond an oender’s criminal sentence itself and are frequently more
burdensome than the sentence.
(Hoskins 2018: 625)
We cannot deal with all these issues, but we will focus on a few issues below.
Wasik looked at cases where bereavement was submitted as a mitigating factor, noting
that the revised guideline on Sentencing Children and Young People (Sentencing Council
2017c) includes for the rst time ‘experiences of trauma or loss’ as a specic factor of per-
sonal mitigation ‘in relation to oenders aged under 18 who have been convicted of a sexual
oence, or robbery’ (Wasik 2018: 278). He concluded that the cases ‘where bereavement
seems to have made a dierence are those where the defendant’s oence was starkly out of
character’ or where there was further inquiry into the defendant’s mental well-being at the
time of the oence (ibid: 294). ‘e cases where the mitigation seems to have made little if
any dierence are those where the oence is regarded as very serious’ (ibid).
If the oender is a mother, then being allocated to a prison far from her home and chil-
dren can cause a disproportionate impact because sorrow at the loss of contact with your
child is greater for the main caregiver, usually the mother, and because a female prisoner
is likely to be further away from home than a male prisoner and so the visits will be less
frequent. e case of Mills (2002) did seem to allow this as mitigation. e extra suering,
particularly for mothers, is now well documented (see, for example, Codd 2004, 2008;
Epstein 2012; Minson 2020), and there is also a growing concern about the separation of
fathers from their children (see Watson and Rice 2004).
Epstein’s research on the sentencing of mothers found a failure, in many cases, to take
account of the Article 8 rights of children when sentencing mothers (Epstein 2012; see also
Joint Committee on Human Rights 2019). Later research by Minson (2020) found a lack
of awareness by judges of the impact of sentencing decisions on children and the adverse
eect of separation on children by parental imprisonment. In considering the impact of
maternal imprisonment, Minson highlights children’s secondary ‘prisonisation’, as they are
oen forced to move home and because of the ‘changes to the mother and child relationship
as it becomes constrained by prison regulations’ (Minson 2019: 525).
e United Nations Bangkok Rules on Women Oenders and Prisoners recommend
that non-custodial options should be used for pregnant women and women with de-
pendent children if possible and appropriate, and if a custodial sentence is necessary, then
it should be postponed to allow appropriate child care arrangements to be put into place.
Beresford (2018) found that some of the women in her study had been unprepared for a
custodial sentence and were especially distressed because their children were being placed
for adoption. In a research study of women imprisoned for short sentences by Baldwin and
Epstein (2017), the women reported negative eects on their children. e impact on the
mothers themselves is also considerable and will be discussed further in Chapter 9.
e Sentencing Council has appreciated the diculties caused for a family by impris-
oning the main carer. In answer to the question ‘Is it unavoidable that a sentence of im-
prisonment be imposed?’, the guideline on the imposition of community and custodial
sentences says: ‘For oenders on the cusp of custody, imprisonment should not be imposed
where there would be an impact on dependants which would make a custodial sentence
disproportionate to achieving the aims of sentencing’ (Sentencing Council 2016b: 7). e
diculty lies in the interpretation of ‘disproportionate’ and the choice of a sentencing aim.
In this context, the issue of prisoners’ children has come to both public and academic
attention (see Baldwin and Epstein 2017; Barnardo’s 2014; Beresford 2018; Brooks-Gordon
and Bainham 2004; Christian and Kennedy 2011; Codd 2004, 2008; Minson 2019, 2020;
Salmon 2004: 18–20; Scott and Codd 2010; for a review of wider legal issues, see also Munro
2002). It is estimated that 310,000 children every year have a parent in prison in England
and Wales,48 but the eect on children is most acute when it is their mother, rather than
48
National Information Centre on Children of Oenders, the centre is delivered by Barnardo’s in partner-
ship with HMPPS, https://www.nicco.org.uk/, accessed 3 August 2021.
their father, who is imprisoned. According to the Corston Report (2007), most children
whose mothers were in prison were not cared for by their fathers; 12 per cent are taken into
local authority care (Barnardo’s 2014: 7).
e children may also suer secondary stigmatisation as the stigma resulting from
the imprisonment of the mother may attach itself to them, so they are treated dierently
from other children, feel dierent, and may be seen as problem children. Beresford’s re-
port for the Prison Reform Trust stressed the disruption of every aspect of a child’s life
when the mother is imprisoned as the mother is more likely to be the sole or primary
carer, and the children may suer a profound sense of loss as well as suering bullying at
school (Beresford 2018). Yet children have until recently been largely invisible, and their
views have rarely been considered. However, in a Court of Appeal case in 2020, R. v Al Ali
(Rahaf), while a suspended sentence of two years’ imprisonment imposed on a mother fol-
lowing her guilty pleas to child cruelty oences in respect of her disabled son was deemed
to be ‘a very lenient approach’, it was also ‘an exceptional case’, and so the sentence was jus-
tied given the mother’s lack of maturity and the impact separation from her would have
on the child (at paras 29 and 30).
e problems for children with a parent in prison have been exacerbated by the impact
of the pandemic, which led to a period during the rst lockdown when prison visits were
suspended, and the alternative of video calls was not as valuable for young children as
Minson (2021) notes.49 Yet parental visits, as Minson, Beresford (2018), and others argue,
should be seen as the rights of the child, but their rights have been given relatively little
weight when decisions are made on visits.
Generally, however, the appellate court has taken a quite stringent approach to the
question as to whether the impact on the parent, children or other relatives is taken into
account. is is exemplied by a series of cases involving women who took Class A drugs
into prison for the person they were visiting (see Piper 2007: 147–8). Jeanne Batte, Sarah
Witten, and Carmen Mackenzie50 all had their sentences marginally reduced, but their
family circumstances were appalling in that they involved depression, caring for a disabled
person or severely ill children, the death of a child, and a husband with a life-threatening
illness. e courts also made clear these were exceptional cases, and in other cases, for ex-
ample, that of Angela Babington,51 no reduction was given.
e judicial comment in an appeal case in 2015 included the argument that the miti-
gation had been given insucient weight. However, the comment of the judge at rst in-
stance was noted and reveals the approach of the courts in these cases: ‘When sentencing,
the learned judge observed it was never easy to impose a sentence which meant taking a
mother away from her children but that alone could not justify a departure from such a
sentence if custody was appropriate’ (R v Nadine Pirincci: para 7). e appeal was not up-
held. e courts believe that giving more weight to family impact would be problematic
as it would infringe the principle of proportionality and also of equal punishment if of-
fenders with and without families were treated dierently. It might also mean that sentenc-
ers would need to judge the parenting skills of an oender to decide whether dependent
children would be harmed or beneted by his or her absence, thereby introducing extrinsic
factors into the sentencing process. An alternative approach might, therefore, be to focus
49
See also Minson and Flynn (2021) for a comparison of the impact of Covid on family visits in the UK
and Australia.
50
Batte (1999), Witten (2002), and McKenzie (2004).
51
Babington (2005). e court distinguished Witten because Babington’s children were older and had all
been in care, and only one of her children was living with her at the time of sentence.
on reducing the impact on third parties by giving more support to maintaining family con-
tact during the period of imprisonment.52
While writing this h edition, the overriding issue for us—and the world—has been
Covid. e impact of the pandemic on prison conditions was acknowledged in the case of
Attorney General’s Reference (Manning) in 2020. e Court made clear that the sentencing
judge could take account of it in deciding whether to suspend a sentence or in determin-
ing the length of a sentence. e Lord Chief Justice said that the pandemic had changed
the context in which decisions on custody are made as the consequent restrictions are now
limiting access to education, oending behaviour programmes, and release on temporary
licence, so if a custodial sentence is appropriate, the sentencer should consider whether it
may be suspended. However, an appeal against the sentence on the ground that insucient
account had been taken of the poor conditions due to COVID-19 failed in R v Whittington
(Tyler) 2020, where the prisoner was serving a long sentence in which the period aected
by the pandemic would comprise a small part.
We would also note that the range of protected characteristics under anti-discrimination
law has broadened under the Equality Act 2010. As a consequence, prisons have a duty
not to discriminate against prisoners on the basis of age, disability, gender reassignment,
marriage and civil partnership, race, sex, sexual orientation, and religion or belief, as well
as a duty to promote equality and to test policies for equality impact. ese issues will be
discussed further in Chapter 9.
7.5 The impact of nes

7.5.1 Fines as punishment
Fines might appear to be the easiest and most appropriate punishment to x proportion-
ately, and so take nancial impact into account because there is a detailed money tari. It
might also be thought easier to encourage the use of non-custodial sentences, including
nes, to reduce the use of custodial penalties. However, there are several problematic issues
relating to nes, and the issue of (in)equality of impact is more visible than in relation to
other penalties. ere are problematic categories of oenders in applying nes, notably the
very poor (especially those dependent on state benets), the unemployed, and the very
rich. ere are also issues relating to legitimacy, enforcement, and those nancial sanctions
which are not within the (direct) purview of the court system. Fixed penalty notices (FPNs)
and benets sanctions would be examples of the latter, and these raise issues of fairness,
impact, and eectiveness.
A ne is a presumptive sentence in the sense that it can be imposed without complying
with a statutory seriousness hurdle (see Chapter 3) and is, therefore, available for a wide
range of oences, from the least to the more serious. In the Crown Court, a ne can also be
added to other penalties (Sentencing Code s. 120(1)), and it can be imposed in magistrates’
and Crown Courts. ere is no maximum ne in the Crown Court, but the maximum for
a summary or either-way oence in a magistrates’ court has been £5,000 since 2002 (al-
though higher nes are possible for certain specied oences). Fines were set at ve levels
by s. 37 of the Criminal Justice Act 1982 and, as amended, are as follows: Level 1 £200, Level
2 £500, Level 3 £1,000, Level 4 £2,500, and Level 5 £5,000.53 However, as a result of s. 85
52
e never implemented intermittent custody order might have been useful: Intermittent Custody, Cmnd
9281, London, HMSO.
53
ese are the same gures as for the 4th edition.
of the Legal Aid, Sentencing and Punishment of Oenders (LASPO) Act 2012, the £5,000
maximum for Level 5 oences has been removed where that applies for an oence punish-
able on summary conviction,54 and this was believed to be ‘a proportionate response so that
proportionate nes can be imposed on wealthy or corporate oenders and organisations’
(Ministry of Justice 2011j: 1–2).
Fines should, then, operate as a useful penalty, and in numerical terms, they have done so.
In 1995, 75 per cent of all those dealt with by the courts were ned (Brownlee 1998b: 137),
but there was then a steady downward trend 1989–2009 for both indictable and summary
oences (Ministry of Justice 2010a: Evidence Report, Figure 3.5)55 with a drop to 65.5 per
cent by 2010 (Ministry of Justice 2011k: 7). In the Crown Court, the use of nancial penal-
ties had decreased more dramatically—by 46 per cent over the period 1995–2006 (Carter
2007: 7).56 Statistics would now suggest that the long-term overall decrease has slowed
down57 and recent statistics suggest that—with 76 per cent of all oenders receiving a ne
in the year ending December 2020 (Ministry of Justice 2021d: 10)—the decrease may have
stabilised although the latest gures are, of course, subject to the problems caused by Covid.
Legitimacy
e variations in the use of nes might be explained in relation to legitimacy because nes
are viewed problematically as a punishment. Further, the issue of enforcement has in the
past undermined condence that punishment will be implemented. ere are other reasons
for ambivalence over nes, however, notably whether it is perceived as a ‘real’ punishment
or not: it is certainly the case that the ne is the designated penalty for those categories of
oence, which some sections of the population do not regard as ‘really’ criminal. Parking
and regulatory oences such as those in relation to TV licences might come into this cate-
gory. More controversially, other motoring oences, such as speeding and health and safety
infractions, might also be included (see Corbett 2000; Carter 2003). Where citizens do not
regard an oence as really criminal, they do not perceive the outcome as a punishment but
rationalise it instead as a tax—a morally neutral nuisance, which is the occasional result of
choosing not to obey what are deemed as non-criminal regulations. e problem is that
such thinking then inuences the conceptualisation of nancial penalties for ‘real’ crimes.58
Money and punishment also have very dierent connotations and are underpinned by
very dierent cultural values. So there are media stories about cases where even the large
ne imposed has not been seen as a punishment sucient to reect the seriousness of the
oending in question. ere is also a strong popular feeling that there are particular harms,
notably crimes of violence and sexual oences, which are not ‘compensatable’ by a nan-
cial penalty, so nes have an ambivalent position as a punishment. In relation to property
oences, there is the added diculty that ‘the value of the punishment must not be less
in any case than what is sucient to outweigh that of the prot of the crime’ (Bentham
1789: 166). From a utilitarian perspective, the ne or other punishment, taken together
with any compensation and conscation orders, must be sucient to make committing the
crime unprotable, otherwise, there is no deterrent eect. From a retributivist perspective,
as we have seen, commensurability would also be undermined by disregarding the prots
54
In force since 12 March 2015; see LASPO 2012 (Fines on Summary Conviction) Regulations 2015. See
Sentencing Code s. 122(3).
55
Figures also showed a 6 per cent decrease in the use of nes in the period 2010/11 (Ministry of Justice
(2011n: Table Q1.2)).
56
See also Ministry of Justice 2015b: 15.
57
But see Ministry of Justice 2015b: 14–15 for the increase in 2013/14.
58
See O’Malley (2009) for an extended discussion of these issues.
of crime. However, there is a related problem regarding the quantum of punishment, and
we shall discuss that in section 7.5.2.
7.5.2 Units of nancial deprivation

Fines punish the oender by depriving him of whatever consumables or non-working time
would have been purchased with the money ‘lost’ through the payment of the ne. e
problem with this approach is that the amount of deprivation or loss is aected by how
much disposable income the individual retains or how much impact the ne has on the
person’s nancial circumstances. It could be theorised as the deprivation of the amount of
time, ‘liberty’, required to earn enough to replenish personal savings.
Two approaches are possible for correlating seriousness with an amount of money:
● to have a xed ne for each amount of seriousness (for example, by xing a certain
sum of money as the ne for each oence and with specied factors to take the amount
above or below the starting point);
● to have a unit of nancial deprivation correlated with each unit of seriousness (that is,
the penalty is xed at a particular percentage of the oender’s nancial resources for a
specied level of seriousness).
e outcome in terms of an amount of money will oen be very dierent. Let us take the
scenario of a £2,000 ne. e sentencer and the public may consider that to be propor-
tionate and justice to have been done, but students with an income of £8,000 from part-
time work lose a quarter of their income; those on £80,000 may not be overly concerned. If,
instead of ‘visible’ equality of justice, we decide to aim at equality of impact, then either the
ne imposed on the student need be only £200 or, instead, £20,000 on the higher earner,
so that both ‘suer’ an equal impact in terms of deprivation of goods that can no longer be
purchased. However, the £200 ne might appear to the media as proof that the student had
‘got away with it’. On the other hand, the recipient of a £20,000 ne might feel the ne is
disproportionate and unjust in comparison with the student’s ne.
Day nes
e approach of English sentencing law and practice until 1991 was to use a xed amount
of ne, which could be reduced by the court if the oender was unable to pay. At the end
of the 1980s, however, the government pursued the idea of ‘day nes’, which were already
being used in parts of the United States and Scandinavia. ese were called day nes be-
cause what the oender earns in a day became the basis for assessments of the total ne.
In England, such a scheme was successfully piloted (see Gibson 1990), though referred to
as ‘unit nes’, and was implemented across the country for magistrates’ courts by means of
s. 18 of the CJA 1991.
In the original s. 18, seriousness was designated by a number of units from 1 to 50. e
ne was then determined by multiplying the number of units by an amount of money
calculated on the basis of the oender’s disposable income. Problems arose when the of-
fender refused to submit details of his nancial circumstances for assessment purposes.
e legislation provided for this by allowing the courts to take the highest gure where no
information was forthcoming, but the highly publicised instances of this happening led
to s. 18 being replaced.59 At the time, a lay magistrate suggested that the sense of outrage
was fuelled by better-o members of society who were dismayed that ‘parking on a zig-zag
59
See Brownlee (1998b: 146) for the role of the Magistrates’ Association.
was previously worth the price of a meal out for two; now it can cost as much as taking the
family to Florida’ (Block 1993: 308). e relevant sections are now to be found in ss. 118–32
of the Sentencing Code.
ere is, however, one dierence from the pre-1991 version: the court can raise as well as
lower the amount of the ne in taking the oender’s means into account. Research would
suggest that magistrates at the time returned to imposing lower than proportionate-to-
impact nes on the employed (Brownlee 1998b: 147), but in 2003, the Carter Report pro-
posed that ‘day nes’ should be (re-)introduced. e government promised to explore
the issue (Home Oce 2004b: Annex para 35; see also Moore 2003a), but the ensuing
Management of Oenders and Sentencing Bill 2005 fell when parliament was prorogued
for the General Election, and subsequent legislation has not included such a provision. As
Ashworth and Kelly point out in relation to A Smarter Approach to Sentencing, ‘e White
Paper contains no discussion of nes at all’ (2021: 255).
7.5.3 Changes in thinking

ere have, however, been signicant changes in relation to the impact of nes over the
last 15–20 years. First, guidance for use by magistrates is more impact-focused. e intro-
duction to the ‘Approach to the Assessment of Fines’ section of the Magistrates’ Courts
Sentencing Guidelines states: ‘e aim is for the ne to have an equal impact on oenders
with dierent nancial circumstances; it should be a hardship but should not force the of-
fender below a reasonable “subsistence” level’.60
e current approach is to place the oending in question within a band—normally one
of three bands—depending on seriousness; then, nancial liability is xed according to the
individual’s means. e starting point for a Band A ne is half a person’s disposable income,
for Band B, it is 100 per cent of disposable income, for Band C, it is 150 per cent, and up
to Band F, where the starting point is 600 per cent of disposable income. For Bands A–C,
the range is 25 per cent above and below the starting point, whereas, for Band F, it is 100
per cent above and below. For those on low incomes, the Sentencing Council states that ‘a
simpler and fairer approach to cases involving oenders in receipt of low income (whether
primarily earned or as a result of benet) is to identify an amount that is deemed to repre-
sent the oender’s relevant weekly income’, currently assessed at £120.61 Bands D–F may be
used where the community or custody threshold has been passed.
In other words, nes in the magistrates’ court are no longer xed as a set amount that
is taken up or down. is is clearly a development to be welcomed, although there re-
mains the problem that this approach to nes appears to be based on those oenders with
a regular income which does not apply to all oenders. e Sentencing Commission for
Scotland (2006) had come to the same conclusion when rejecting day nes until the time
when there was a ‘simple, reliable and cost-eective method of obtaining information on
oenders’ income’ (ibid: Foreword by the Rt Hon Lord Macfadyen). is has also been an
issue in England and Wales.
ere is now structured sentencing guidance for nes, but research undertaken some
time ago in magistrates’ courts to assess the extent to which magistrates were using the
60
Accessed at https://www.sentencingcouncil.org.uk/explanatory-material/magistrates-court/item/nes-
and-nancial-orders/appro ach-to-the-ass essment-of-nes-2/1-appro ach-to-the-ass essment-of-nes-intro
duction/, accessed 6 October 2021. is is the same wording as that in SGC 2008h: 148 para 2.
61
https://www.sentencingcouncil.org.uk/explanatory-material/magistrates-court/item/nes-and-nanc
ial-orders/approach-to-the-assessment-of-nes-2/5-approach-to-oenders-on-low-income/, accessed 6
October 2021. It was £100 in 2008 (see SGC 2008h: 148).
guidance found that, while guidance was used to reach a decision, many panels ‘subse-
quently chose to change their minds’ (Raine and Dunstan 2009: 29). Whether this is still
so is not known. However, another component of sentencing—the short-lived compulsory
criminal courts charge62—undermined all attempts to calibrate nes in line with oender
means for nine months in 2015. e Magistrates’ Association was critical, the Howard
League campaigned against the charge,63 the House of Lords passed a ‘motion to regret’ the
implementation of the regulation,64 and the Justice Select Committee asked for the charge
to be abolished—which it was. It would appear that equality of impact for nes has become
acceptable to many.
Increased nes for corporate crime

A focus on sentencing for serious crime by commercial rms and the resulting guidance
on nes to be imposed on companies convicted under the Corporate Manslaughter and
Corporate Homicide Act 2007 led to the setting of nes at a much higher level and so with
greater impact on the business involved. e 2010 SGC Guideline was replaced in 201665
such that organisations are now divided into various sizes according to turnover and have
also been given dierent ranges of nes according to whether the culpability or harm is
high (A) or lower (B). So, for example, the medium size rm could expect the range to be
£1,800,000 – £7,500,000 for A and £1,200,000 – £5,000,000 for B with starting points of
£3,000,000 and £2,000,000 respectively.
It may be that this will inuence thinking about the use of nes. However, in its 2010/11
report, the Health and Safety Executive reported that duty holders found guilty of health
and safety oences prosecuted by them led to average penalties on conviction of £35,938
per case (Health and Safety Executive 2011: 10), these had dropped to an average pen-
alty of £18,944 per oence in 2013/14. Further, the total nes for oences prosecuted by
the HSE in England and Wales and COPFS in Scotland have declined since 2017–18 (see
Figure 7.3).
7.5.4 Default and enforcement

Assuming nes have been imposed fairly in regard to impact, the other requirement
to ensure equitable impact is that the nes are actually paid. e MCSG Section 12 on
‘Payment’66 points out that ‘e oender should always be asked for immediate payment
when present in court and some payment on the day should be required wherever possible’.
e court has powers to detain, but normally nes can be paid by instalments spread over
no more than 12 months, the concern being that a long repayment period allows the poorer
oender to be ned to an amount that has more impact than the same amount imposed on
an oender who can aord to pay it immediately. Olliver (1989) allowed the period to be,
62
Introduced in April 2015 by the Prosecution of Oences Act 1985 (Criminal Courts Charge)
Regulations 2015.
63
See https://howardleague.org/get-involved/our-success/campaign-against-the-criminal-courts-charge/,
accessed 14 August 2022.
64
Hansard HL 14 October 2015 Columns 296–310 at http://www.publications.parliament.uk/pa/ld201516/
ldhansrd/text/151014-0002.htm#15101460000420, accessed 14 August 2022.
65
See https://www.sentencingcouncil.org.uk/oences/crown-court/item/corporate-manslaughter/, ac-
cessed 14 August 2022.
66
Accessed at https://www.sentencingcouncil.org.uk/explanatory-material/magistrates-court/item/nes-
and-nancial-orders/approach-to-the-assessment-of-nes-2/12-payment/, accessed 31 December 2021.
100,000,000
75,000,000
Total ﬁnes (£)
50,000,000
25,000,000
0
2014/15 2015/16 2016/17 2017/18 2018/19r 2019/20p
Total Fines
Figure 7.3 Total Fines for Health and Safety Oences prosecuted by HSE and, in Scotland, the
Crown Oce and Procurator Fiscal Service (COPFS), 2014/15–2019/20p (£, million)
Source: Health and Safety Executive (HSE) Enforcement Statistics in Great Britain 2020, p. 5, Figure 2, ac-
cessible via https://www.hse.gov.uk/statistics/enforcement.htm. Reproduced under the Open Government
Licence v3.0.
exceptionally, 24 months, and that is the period now allowed for payment of nes, which
are imposed in the exceptional bands D–F (with Band D to be paid in 18 months).67 Section
13 of the MCSG also deals with Collection Orders allowing the court to make attachment
of earnings orders.
Despite these provisions, many oenders do not pay any or all of their nes. e full
payment rate for nes was 55 per cent in 2002/3 with an overall improvement to 2010/11
(Written Answer Hansard HC, 21 June 2011: col 174W), although the number of ‘write-
os’ increased and £75.9 million was abandoned in 2014. By 31 March 2021, the total of
unpaid nes was £794 million (Written Answer, HC Deb, 3 March 2022, cW).
ere was a gradual increase in full payment of FPNs in England and Wales 1997-2003
(Ministry of Justice 2007d: para 5.14), around 89 per cent in 2006–9 (Povey et al. 2011),
with payment rates for motoring oences being relatively stable 2003–12 and the ne was
paid in 95 per cent of cases in 2013 (Home Oce 2015: para 8.5). However, recent statistics
suggest both a decrease in nes paid and a possible reason for that which we will deal with
under enforcement:
e amount of outstanding nancial impositions has doubled since the start of 2015
(£571m). A change in policy regarding the collection of nancial impositions is partially
behind this cumulative increase – unpaid accounts are no longer routinely closed and there-
fore, more outstanding impositions are carried over from previous periods.
(Ministry of Justice 2021e: section 5)
Default
Home Oce research in the mid-1990s found that there was no one standard practice—
attachment of earnings or deduction from benet, distress warrants,68 reviews, warrants
for arrest—by which nes were enforced (Whittacker and Mackie 1997: 5). e main rea-
sons defaulters gave for their ne arrears were that there had been a (detrimental) change
67
e Magistrates’ Courts Act 1980 ss. 79–118 provide other process options and powers for reviewing and
enforcing nes: for a discussion of these, see Moore (2003b: 729–31).
68
See Moore 2003b.
in their nancial circumstances and/or that they had other nancial commitments and
debts. Women defaulters were typically in very restricted nancial circumstances, while
22 per cent of male defaulters were unemployed (ibid: 13–14), and Moore found that in
some cases, it simply might not be possible for magistrates to implement the principle that
a ne should have a detrimental impact but not cause signicant nancial hardship (Moore
2003a: 23–5).
Reliance on the sanction of immediate or suspended prison sentences69 for ne default
decreased in the 1990s (see Brownlee 1998b: 148–9), and research showed that magistrates
realized nes were likely to impact disproportionately on oenders with limited means
(Mackie et al. 2003: 28; see also Raine et al. 2004).70 e CJA 2003 s. 300 now empowers
magistrates to impose a ‘default order’ whereby the oender must comply with an unpaid
work, curfew (which may include electronic monitoring), or attendance centre71 require-
ment and s. 301 allows the magistrates’ court to disqualify the defaulter from driving for
up to 12 months.
Enforcement
e problem of ne default was clearly a major reason why nes were not used more exten-
sively and so the Courts Act 2003 amended previous legislation to provide a new framework
for ne enforcement. A Unied Courts Agency was created in 2005, a phased implemen-
tation of the National Enforcement Service from 2007, and under the Fines Collection
(Amendment) Regulations 2004 a new type of attachment of earnings order was piloted.72
Legislation in 2008 allowed the sta of Her Majesty’s Courts Service (HMCS) to gain access
to benet records held by the Department for Work and Pensions (DWP) for the purpose
of ne enforcement.
e diculty is that, while some oenders are in the ‘won’t pay’ category, others ‘can’t
pay’: their non-payment is not necessarily wilful. Even research evidence that people pay
nes at the last minute—when threatened with an imminent custodial order—does not
prove they could have paid all along. It may also be explained by the generosity of friends
who oer nancial help only when that threat is likely to be implemented (Morris and
Gelsthorpe 1990: 842). As Coca-Vila (2020) recently pointed out, ‘Minimizing the risk of
the ne’s hard treatment being transferred to third parties is a necessary condition for the
monetary ne to be considered a viable alternative to lengthy prison sentences’. Where of-
fenders have genuine diculties paying even small nes, enforcement ‘that is not mitigated
by positive intervention and assistance in other areas of life can only serve to reinforce
existing patterns of social inequality in the criminal justice system’ (Brownlee 1998b: 151).
Developments since 2003 in relation to the imposition of unpaid work might have ameli-
orated the situation. Originally referred to as Fine Payment Work (FPW) and piloted in
2004–09 (see Rix et al. 2010 for the research report), this is now an unpaid work require-
ment (s. 300(2)(a) of the CJA 2003) imposed on a ne defaulter. e Courts Act 2003 states
that the court ‘must make an order (“a collection order”) relating to the payment of the
sum due, unless it appears to the court that it is impracticable or inappropriate to make the
order’ (sch.5, para. 12) and the sum due can now not only consist of, or include, a ne or
compensation order but can also include an unlawful prot order or a sum required to be
paid by a slavery and tracking reparation order (sch.5 para 13(1)(aa)).
69
Section 82 of the Magistrates’ Courts Act 1980 provides the restrictive conditions for imposing custody
on ne default.
70
See also the Citizens Advice Bureau 2015: 18.
71
For 16–24-year-olds: inserted by CJIA 2008, s. 40.
72
See https://www.legislation.gov.uk/uksi/2004/175/article/2/made?view=plain, accessed 14 August 2022.
7.5.5 Fixed and regulatory penalties

A variety of bodies can also collect penalties and sanctions—referred to as ‘notices’—which
have been described as a compromise between the principle of equal impact and adminis-
trative eciency (Ashworth 2000: 211; see also Ashworth and Kelly 2021: 201). e level
of ne does not vary according to the oender’s means, and the assumption is that the level
is set suciently low for it not to cause injustice. We looked briey at the deterrent eect
of xed penalty notices—FPNs—in Chapter 4 (section 4.4.1). ey were rst introduced
in the 1950s for parking oences and have since been extended to other motoring oences
and a wide range of other oences. Some of these are referred to as ‘regulatory oences’,
oen ‘newer’ oences regulated by bodies other than the police, which deal with issues of,
for example, fair trading, consumer protection, vehicle licensing, and health and safety. e
extension of FPNs to careless driving, from 2013 (see Easton and Piper 2013), allowed for
an immediate £100 ne to be imposed by the police.73
Speed limit oences comprise a large percentage of all FPNs, and this is not surprising
as ‘Over the last ve years, acts of illegal speeding detected have increased by 25%. Over
the past eight years they have increased by 49%’ (Lam and Snow 2020). Further, ‘On
30mph roads 52% of cars exceeded the speed limit on weekdays and 59% on weekends’
(Department of Transport 2020: 13) and even during the pandemic, ‘56% of cars exceeded
the speed limit on 30mph roads’ (Department of Transport 2021). If there is a guilty plea,
the penalty is a £100 ne and three penalty points added to the licence.
For the enforcement of the coronavirus restrictions, 117,213 FPNs were issued in
England and Wales under lockdown regulations between 27 March 2020 and 20 June 2021.
It was possible to impose an FPN to the value of £10,000, and some evidence suggested that
‘those who challenge a £10,000 FPN have been issued a lower ne on conviction. is has
raised questions about the fairness and workability of the nes’ (Brown 2021: para 2.3).
e Sentencing Council, in its Explanatory Materials for Out of Court Disposals, deals
with FPNs and also PNDs (penalty notices for disorder) in Section 5.74 PNDs are one of the
so-called ‘on the spot’ nes issued by the police—still set at £60 or £90 depending on the
oence, which were introduced by ss. 1–11 of the Criminal Justice and Police Act 2001. As
Grace pointed out, ‘Since its introduction, the remit of the PND scheme has been hugely
extended; . . . subsequent amendments have seen the number of penalty oences rise from
ten to 29’ (2014: 70) but she ‘questions whether the government’s stated aims of saving po-
lice time and providing a quick, deterrent punishment have been met’ (2014: 71–5).
In 2021, national statistics showed that ‘Excluding cautions,75 there were 164,000 OOCDs
[out of court disposals: see also Chapter 6 section 6.3.6] in the year ending March 2021, a
9% increase compared to the previous year. is increase was driven by a 16% increase in
community resolutions’ (Criminal Justice Statistics Quarterly March 2021). However, the
use of PNDs has continued to decline ‘with 14,900 issued in the year ending March 2021,
falling 22% from the previous year. e most common oences that resulted in a PND were
possession of cannabis, accounting for 48% of PNDs issued, and drunk and disorderly be-
haviour accounting for 25%’ (ibid).76
73
See, for more information, https://www.theaa.com/driving-advice/legal/xed-penalty, accessed 29
December 2021.
74
See https://www.sentencingcouncil.org.uk/explanatory-material/magistrates-court/item/out-of-
court-disposals/5-penalty-notices-xed-penalty-notices-and-penalty-notices-for-disorder/, accessed 29
December 2021.
75
Not available because of delayed access to the Police National Computer on account of Covid-19.
76
For earlier statistics, see Ministry of Justice 2011n.
ese exceptions to the range of variable nes for standard criminal oences raise sev-
eral issues, notably the setting of the nancial amount for xed penalties. If it is too high, it
may be unfair to oenders of limited means, and it might also increase evasion of payment.
Grace’s study of PNDs found that in the force area reviewed, 51 per cent of tickets were is-
sued to people who were unemployed and that only 31 per cent of unemployed people paid
the notice, compared with 59 per cent of people who were employed (Grace 2014: 78). If it
is too low, however, it might not act as a deterrent and be treated simply as a (small) tax to
be paid for the advantage gained by the illegal action (see Easton and Piper 2013).
In relation to regulatory penalties and white collar crime generally, the issue has been
whether those subject to such sentencing are treated too leniently, and so it is unfair to
other criminals to be treated more harshly. Fining companies and organisations has been a
particular problem for many years.77 Croall found that few oenders were imprisoned for
business regulatory oences and that nes were relatively low for oences under safety and
public health legislation, although oences of fraud and tax evasion were given a broader
range of punishments and she concluded that ‘the broad distinction between crimes against
and crimes in the course of capitalism appears to have some substance’ (1992: 111–2; see
also Sanders 1985). Cook came to similar conclusions in relation to the dierential treat-
ment of those defrauding the Inland Revenue by evading tax and those defrauding the
Department of Social Security by claiming benets to which they are not entitled (1989;
see also Levi and Pithouse 2000).
Webster pointed out that the number of nancial penalties (‘sanctions’) imposed on
benet claimants by the Department of Work and Pensions (DWP) exceeded the number
of nes imposed by the courts (Webster 2015).78 His research also led him to argue that
‘the “transgressions” (DWP’s own word) which are punished by this system are almost
exclusively very minor matters, such as missing a single interview with a Jobcentre or
Work Programme contractor, or not making quite as many token job applications as the
Jobcentre adviser demands’ (Webster 2015; see also Morgan 2008). It is dicult to make
comparisons as the method of providing statistics changed in 2017, and the DWP’s ‘Benet
sanctions statistics: background information and methodology’ is now complicated,79 but
statistics show that in November 2021, the sanctions rate in regard to Universal Credit was
2.37 per cent.80
7.6 Reecting on the issues

7.6.1 Conating the categories
In this chapter, we have reviewed the sentencing law and practice relevant to the impact of
the oending and punishment on the victim and the oender, but what is oen overlooked
in policy discussion is that in practice, the categories of victim and oender are oen not
so separate. Many people are both victims and oenders.81 Indeed, ocial statistics make
77
See Ashworth 2010: 335–7 for further discussion.
78
http://www.crimeandjustice.org.uk/resources/benet-sanctions-britains-secret-penal-system, accessed
12 October 2021.
79
Updated 23 February 2021: see https://www.gov.uk/government/publications/benet-sanctions-statist
ics-background-information-and-methodology/benet-sanctions-statistics-background-information-and-
methodology, accessed 14 August 2022.
80
See https://www.gov.uk/government/statistics/benet-sanctions-statistics-to-october-2021-experimen
tal/benet-sanctions-statistics-to-october-2021-experimental, accessed 14 August 2022.
81
For a review of research and theory about this interrelationship, see Farrall and Maltby (2003).
clear that high crime areas are also areas with high rates of victimisation. While we have
had to focus on the victim and the oender separately, it would be helpful if both policy and
practice were more aware of this overlapping of roles.
7.6.2 Discussion questions

Below is a scenario which reects problematic issues raised by this chapter. Read the sce-
nario and then think about the following questions:
1. How might it be possible—if at all—for the Court of Appeal to justify a decision to
substitute a community order for Amy’s custodial sentence?
2. What solutions to this type of situation—other than at the sentencing stage—can you
suggest?
3. If Amy’s oences had involved supplying drugs to local teenagers would your atti-
tudes and responses be dierent? Why/why not?
4. Consider the situation of the victims. If Amy’s oences had, instead, been a series of
thes from elderly neighbours do you think they would have access to adequate sup-
port and ‘remedies’?
Amy is a mother with four children under ten years of age. e children’s father, Ben,
has been in prison for two years. Amy has several convictions for the, all preceding the
period in which she went to live with Ben and had her children. Amy got into severe -
nancial diculties two years ago and agreed to deliver packages of drugs, on a regular
basis, to distributors. By the time she was caught, she had delivered a very large quantity
of a Class B drug. She pleaded guilty shortly aer her arrest to a charge of possession with
intent to supply under the Misuse of Drugs Act 1971, s. 5(3), although she insisted that she
had been led to believe the drugs were only ketamine (Class C). She received a sentence
of 18 months.
Ben’s family have always rejected her; her own family consists of an ill and elderly mother
and a sister who has two children. No one oers to look aer her children, and she agrees
that they be voluntarily accommodated by the local authority. A recent review by the local
authority noted the children’s distress in their new homes (they cannot all be accommo-
dated in the same foster family). Amy appeals her sentence.
You will need to consult the following:
Sentencing Council (2021c) Drug Oences: Denitive Guideline. London, Sentencing
Council.
You might also wish to consult the following:
Jacobson, Kirby, and Hough (2011) Public Attitudes to the Sentencing of Drug Oences.
London, Oce of the Sentencing Council.
Sentencing Council (2015a) e Oences, Denitive Guideline. London, Sentencing
Council.
7.6.3 Case study: impact on the offender

Below is a sentencing exercise which draws on the material in Chapter 5 (particularly sec-
tion 5.4) and Chapter 6 (section 6.4), as well as on the themes discussed in this chapter.
It brings together dicult questions relating to proportionality, dangerousness, mentally
disordered oenders, and personal mitigation.
Facts of the case:

Zack is 42 years old and has suered from mild schizophrenia for almost 20 years. ree
years ago, he spent a month in hospital for psychiatric treatment to establish a new medica-
tion regime. His condition has since been stable, and he works as a labourer. He has always
lived with his mother, who is now elderly and inrm, and depends on him for her shop-
ping, laundry, and meals.
When doing building work over a period of time in a family home, Zack made friends
with Yamila, the seven-year-old daughter of the family, and persuaded her to let him take
several photos of her, in particular poses, when she was undressing. He told her to keep
the ‘photo shoot’ as their little secret, but Yamila was excited, thinking she could become a
model when she grew up, so she told her parents about the photos. ey contacted the po-
lice, and the photos were found on the computer in Zack’s house. e computer provided
evidence that he had copied the photos to three friends.
Zack pleaded guilty at the magistrates’ court to a charge of taking and distributing in-
decent photographs of a child (section 1 of the Protection of Children Act 1978). e
maximum penalty for this oence on indictment is ten years, and it is a specied oence
(Sentencing Code s. 306) and listed in Schedule 18 (Part 2) of the Code. It is also in Part 1
of Schedule 15 for the purposes of s. 283 (life sentence for second listed oence) of the
Sentencing Code and in s. 279 of the Code for the purposes of the extended sentence.
e photos were referred to COPINE (Combating Paedophile Information Networks in
Europe), which graded the images as being of the lowest category of obscenity. Zack has
two previous convictions (for being drunk and disorderly and for the in breach of trust),
for which he received a ne and a short custodial sentence, respectively.
You are Zack’s solicitor. Explain to him what options are open to the magistrates’ court
at the sentencing hearing (including referral to the Crown Court for sentencing) and what
the judge is most likely to decide.
Would your answer be any dierent if he was at the time of conviction still attending
regular outpatient appointments at the local hospital’s mental health unit?
You might wish to consult the following:
Sentencing Council (2014e) Sexual Oences, Denitive Guideline. London, Sentencing
Council.
Please note: a Sexual Oences Guidelines Consultation closed in August 2021 and so there
may well be a new denitive guideline when you use this case scenario.
Sentencing Guidelines Council (2018) Magistrates Courts Sentencing Guidelines.
London, Sentencing Council.

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7

Impact on victims and offenders

7.1 An increased focus on the victim

7.1.2 What role for victims?

Role of the Probation Service

7.1.3 The victim personal statement scheme (VPSS)

7.2 Reducing the impact on the victim

7.2.2 The ‘fruits of crime’: restitution, forfeiture, and conscation

Benefit assessed Completed Benefit = order

Figure 7.1 Number of conscation orders by total benet amount

7.2.3 Compensation to the victim

Compensation by the state

See https://www.gov.uk/government/organisations/criminal-injuries-compensation-authority, accessed

Financial Impositions in period (£ millions)

Compensation Victims Surcharge Costs Fines Other Criminal Court Charge

Sentencing Council26). e 1997 version of the Guidelines incorporated examples of suit-

7.2.4 Victim surcharge

Table 7.1 Income from the Victim Surcharge 2010/11 to 2017/8

Source: based on gures extracted from https://www.sentencingcouncil.org.uk/explanatory-material/magi

7.3 Punishment impact on the offender

7.3.2 ‘Equalising’ impact

7.3.3 Arguments against impact mitigation

the perception of the current system is discriminatory, raising problems of legitimacy. He

7.4 Impact as mitigation in practice

7.4.2 The offender: vulnerability and age

e Report of the House of Commons Justice Committee (2016b) on the treatment of

7.4.3 Illness and disability as mitigation

7.4.4 Loss of employment

7.4.5 Impact on the offender and offender’s family

7.5 The impact of nes

7.5.2 Units of nancial deprivation

7.5.3 Changes in thinking

Increased nes for corporate crime

7.5.4 Default and enforcement

7.5.5 Fixed and regulatory penalties

7.6 Reecting on the issues

7.6.2 Discussion questions

7.6.3 Case study: impact on the offender

Facts of the case:

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