Criminal History in England: The Search for the Snark

Abstract

For the last 100 years English sentencing law has found it difficult to fashion a defensible and effective strategy for dealing with persistent offenders. Since at least 1908 there have been legislative attempts to separate persistent serious offenders, for whom an incapacitative strategy might be pursued, from the bulk of small-time but frequent offenders, for whom other strategies are more appropriate. When Winston Churchill was Home Secretary in 1910-11, he decried the inability of the law to distinguish between mere repetition in lawbreaking and offenders who presented a serious danger to society, and he issued a circular which propounded the test of whether the offender’s criminal history shows that he is “not merely a nuisance but a serious danger to society.” The latest legislative changes demonstrate that the problem is still the same, but the solution rather less obvious to the present government. In its policy paper of 2002, entitled Justice for All, the language oscillated between referring to “targeting persistent offenders” and reserving prison for “seriously persistent offenders,” but it failed to focus on persistent serious offenders. A policy against mere repetition, as Churchill put it, is likely to net small-time (once termed “petty”) offenders who present either multiple social problems or problems of addiction, and then to subject them to disproportionately heavy sentences. In 2001 the Home Office publicised the claim that some 100,000 persistent offenders (representing only one-tenth of offenders annually) would “accumulate at least 50 per cent of all serious convictions” each year. Following this, the government required local Criminal Justice Boards to develop Persistent Offender Schemes for targeting prolific offenders, schemes that are properly directed to identification and detection rather than mainly to punishment. But again, is the right group being targeted? The reference to “prolific offenders who are responsible for a disproportionate amount of crime” places repetition above seriousness as the criterion, fails to acknowledge the role of alcohol or substance misuse and other social disadvantages (so well highlighted by the government itself in other places), and fails to recognize the known problems of seeking crime control in this way. This initiative seems likely to result in unjustifiably heavy sentences on small-time offenders, sentences that will be both disproportionate and futile. It is the social problems of this group that need tackling. The 100,000 most persistent offenders share a common profile. Half are under 21 and nearly threequarters started offending between 13 and 15. Nearly two-thirds are hard drug users. More than a third were in care as children. Half have no qualifications at all and nearly half have been excluded from school. Three-quarters have no work and little or no legal income.