The Legal Aid, Sentencing and Punishment of Offenders Act 2012 was passed by the UK Parliament in order to introduce measures conducive to the reform of the criminal justice system. Amongst the most important measures introduced by the Act, it is possible to mention the greater amount of discretion given to the court system in order to grant conditional discharges to youths entering a guilty plea for first offences as well as the tougher conditionalities imposed through the expansion of the youth rehabilitation order system (Sprack, 2012: 9). In addition, the legislation expands the provisions made for the punishment of hate crimes and makes ‘squatting’ a criminal offence. Furthermore, it severely curtails the scope under which legal aid may be granted. In this essay I will concentrate on analysing the legal provisions of LAPSO from the standpoint of the retributive and utilitarian theories of punishment.
Summary and background
Section 142 of LAPSO creates new offences to cover those who have a bladed or pointed article or offensive weapon with them in a public place or school premises and go on to threaten a person with it in such a way as to cause immediate risk of serious physical harm to that person. The Government’s aim in creating the new offences was set out by Ministers during the passage of the legislation through Parliament:
Knives on our streets are a social scourge. That is why the unlawful possession of a bladed or pointed article or offensive weapon is already a serious criminal offence carrying a maximum custodial sentence of four years. Clause 1131 goes further than those possession offences. Our aim, through the clause, is to send a clear message to those in possession of a bladed or pointed article or offensive weapon, that if they then go on to threaten and cause an immediate risk of serious physical harm to another person they can expect an automatic custodial sentence (Hansard 13 October 2011: Column 803).
The new offences are designed to strengthen the existing legislative framework by targeting behaviour that amounts to more than simple possession, but does not go so far as resulting in the injury of the victim (for which other existing offences would apply). The offences under this section will apply in England and Wales; be triable either way, and subject to a maximum penalty of 4 years’ imprisonment on indictment (or, where the offender is under 18, a 24 month Detention and Training Order (by virtue of the Sentencing Act 2000, s101(1)). Key to meeting the aim of the provisions is that the courts are required to impose a minimum custodial sentence of 6 months for adults or a detention and training order of at least 4 months’ duration for 16 and 17 year olds (unless there are particular circumstances relating to the offence or offender which would make it unjust to do so in all the circumstances).
Section 143 of LAPSO creates a new offence of causing serious injury by dangerous driving, punishable by up to five years imprisonment. Dangerous driving is currently an offence under section 2 of the Road Traffic Act 1988 (The “RTA 1988”) and attracts a maximum penalty of two years’ imprisonment. In addition, causing death by dangerous driving under section 1 of the RTA 1988 attracts a maximum penalty of 14 years’ imprisonment. There has long been pressure for change in road traffic law to close a perceived ‘gap’ in sentences between the current two year maximum for dangerous driving and the 14 year maximum for causing death by dangerous driving. The new offence responds to road safety campaign groups, victims and their representatives who have called for increased sentences to be made available for those who cause serious injury by driving dangerously. Parliament responded to need to protect the public by instituting the new offence of causing serious injury by dangerous driving targets, extending sentencing powers at the most serious end of the spectrum of dangerous driving incidents. That will be reflected in the higher maximum penalty of five years’ imprisonment. The new offence will be committed when a person drives a mechanically propelled vehicle dangerously on a road or other public place causing serious injury to another person. In England and Wales, the test for ‘serious injury’ will be the same as for ‘grievous bodily harm’. For the purposes of the Offences against the Person Act 1861, grievous bodily harm (GBH) has been given the accepted definition of ‘really serious harm’. The offence will apply to Scotland as to England and Wales. However, as Scottish law does not contain the same definition of GBH, the test for serious injury will be the same as that applied by Scottish courts to “severe injury’ as that applied to “severe injury” in aggravated assault cases. The tests proposed will ensure that there is parity as to the severity of harm required in order for the offence to be made out (LAPSO, 2012, Section143). The new offence will be triable either way and subject to a maximum penalty of five years imprisonment, or a fine, or both. The maximum penalty on summary conviction in England and Wales will be six months’ imprisonment or a ?5,000 fine, or both. In Scotland (due to the different allocation of business between the summary and solemn courts) the maximum penalty on summary conviction will be 12 months’ imprisonment or a ?10,000 fine, or both. In both jurisdictions, the maximum sentence on conviction on indictment will be five years’ imprisonment or an unlimited fine, or both (LAPSO, 2012, Section 143).
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the concepts of retributive and utilitarian punishment
The concept of retributive justice is based on the assumption that stipulating a proportionate amount of punishment serves as an efficient way to deal with the spread of crime. It is assumed that when an individual offends, s/he is giving up his/her right to enjoy equal treatment (Moore, 1997: 59). Consequently, a retributive punishment is enforced in order to take away the right to equal treatment from the offender. This punishment theory is differentiated from notions of vigilante or revenge justice, since the imposition of punishment is dependent on the performance of a wrongdoing on the part of the individual, in accordance with established procedural norms (Nozick, 1981: 366). It is plain to see that the provisions of LAPSO in regards to dangerous driving and the carrying of the possession of offensive weapons have a retributive aspect in mind. The retributive notion of punishment would look at the provisions of this legislation as an instrument to rectify the advantage unfairly obtained by the perpetrator when s/he committed the crime (Whitehead and Lab, 1998: 321). It could be argued that there is a notion of responsibility which has been significantly eroded in modern society, which makes it easier for drivers to be reckless when driving and for criminals to be more audacious about carrying offensive weapons. In this context, the provisions of LAPSO are geared towards recalibrating the balance between wrongdoing and desert when ascertaining the right type of punishment. It is important to add that the retributive perspective sees punishment as a social good which redresses the economic and social effects that crime has on individuals. From this perspective, it could be posited that retributive punishment reduces the scope for vigilante justice as society is likely to be more satisfied with the end of result of the criminal justice process; geared towards punishing those who break the norms and legislation validated by the social contract (Moore, 1997: 55). The sentencing philosophy which seems to guide this piece of legislation is geared towards ensuring that punishment is, at the very least, partially scaled in order to redress the infringement of rights suffered by the victims. It could be postulated that the promulgation of this provisions by Parliament adhere to the principle of retributive punishment by scaling the notion of justice to the need to ensure that the transgressor is punished in equal proportion to those who suffered from the wrongdoing (Kant in Ezorsky (ed.), 1972: 103).
Utilitarianism takes a close look at the consequences generated by the actions of the offender and how these impact on a particular social group (Corlett, 2008: 19). Questions of rightness are wrongness are evaluated by utilitarianists according to a putative point of equilibrium between good and bad that arises from particulars actions undertaken by individuals. In the context of punishment theory, this principle applies when considering whether a particular sentence would produce the greatest level of happiness for society at large. This is of particular relevance to the punishment meted out against offenders found guilty of the crimes specified in Section 142 and 143 of LAPSO.
The rationale behind the introduction of this legislation adheres to some of the parameters delineated by the utilitarianist theory of punishment. In essence, the drafters of the legislation prioritised the need to protect the population from reckless drivers and weapon-carrying criminals, which could have potentially detrimental consequences for the social order (Smith, 2008: 32). Although the utilitarianist principle tends to look at the notion of punishment as inherently evil, inasmuch as it causes suffering for the individual who committed the offence, the retribution imposed by the legislation has to be examined within the context of the social good that derives from preventing the practice of dangerous driving and the carrying of offensive weapons (Bentham, 1948: 129).
The sentencing rationale behind the legislation purports to look at the issue of crime from the standpoint of preventing potential offenders from inflicting harm upon society. By doing so, the Act ensures the happiness of the greatest number and a general reduction of harm (Smith, 2008: 30). There have been attempts to establish a middle ground between both concepts of punishment. It has been postulated that punishment should only be carried out when the implications of doing so does not produce a negative outcome (Hart in Hart (ed.), 1968: 25). Whilst this view makes provisions for question of desert and justice, as it is not intrinsically opposed to the idea of punishing crimes, it also allows room for the examination of the potential consequences of punishment. This has important societal connotations, since communities are increasingly demanding a larger amount of protection from the evils of crime (Garland, 2001: 48). It would appear that this notion provides a useful framework of reference in the evaluation of the provisions attached to the Act. Whilst adopting a distinct utilitarianist approach, the Act seems to be worded in a manner which denotes a close examination of the potential consequences of being too profligate with the amount of punishment stipulated for the offences that it deals with (Hallsworth and Lea, 2011: 157).
In conclusion, it could be argued that the Legal Aid, Sentencing and Punishment of Offenders Act 2012 includes a measured dosage of retributive and utilitarianist notions of punishment to its sentencing philosophy. To being with, the Act scales the concept of punishment to the need to ascertain that the offender received an amount of punishment which is proportionate to the suffering caused to the victim of the crime (Kant in Ezorsky (ed.), 1972: 104). At the same time, the provisions included in the legislation also seem to have a utilitarianist perspective, inasmuch as it attempts to induce ‘the greatest amount of happiness for the greatest amount of people’ by ensuring that the Act reduces the spectrum of harm caused by offenders. The wording included in the legislation suggests that the drafters examined the potential consequences of the Act by making reference to the need to protect society from harm (Garland, 2001: 57). Nevertheless, it could be concluded that the stipulations included in the legislation are framed for the purposes of ensuring that the sentencing philosophy which underpins it is not conducive to generating unintended negative consequences for the wider societal spectrum.
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