Non-custodial sentences – walking free from court?
Reports about the sentencing of criminals sometimes refer to them as “walking free from court” if they are not sent to prison. This gives the false impression that unless someone is given an immediate jail sentence, they do not face any punishment or other consequence as a result of the offence they committed.
This is not only wrong, but suggests a lack of understanding of what sentencing aims to achieve and the nature of sentences other than immediate custody.
If an offender is given a community sentence, they have to comply with up to 12 restrictions on them such as doing unpaid work for up to 300 hours, keeping to a curfew, a ban from going to particular places or doing certain activities or supervision by the National Probation Service.
A suspended sentence comes with similar restrictions and, if they commit another crime or don’t keep to the requirements, they can be sent to prison. Even if offenders get a conditional discharge, if they commit another crime they could find themselves back in court to be sentenced for the new offence, and the original one.
And of course, once convicted they will have a criminal record, which can limit offenders’ freedom in many aspects of their lives, such as finding a job since most employers now ask potential employees whether they have any previous convictions – which they are legally obliged to reveal. Those with a criminal record may also find it difficult to secure a mortgage, get insurance or travel and work abroad.
Sentencing is about more than just punishment. Parliament has set out five purposes which judges must consider when sentencing an offender. One of these is indeed punishment, but there are wider considerations.
It is concerned with reducing crime – both preventing the offender from committing more crime and putting others off from committing similar offences. It is about reforming and rehabilitating offenders – changing an offender’s behaviour to prevent future crime. One way of doing this could be to require an offender to have treatment for drug addiction or alcohol abuse, or undertaking a sex offender treatment programme which can last up to three years.
A further purpose is to protect the public – keeping them safe from the offender and from the risk of more crimes being committed by them. This could be by putting them in prison or, if they are not in prison, restrictions on their activities or supervision by probation.
It is also about making the offender give something back to people affected by the crime – this could be, for example, by the payment of compensation or through restorative justice.
The judge or magistrate will need to consider what emphasis should be given to each of these purposes when sentencing. Sometimes prison will be the appropriate sentence, but sometimes other types of sentence will be more appropriate depending on the facts of the offence and the specific offender.
The “walking free from court” concept really gives the impression that it is jail or nothing, which does not help with an understanding of how sentencing works and what it aims to achieve.
There are times when it can be said legitimately that someone has walked free from court: this is when they are acquitted – that is, found not guilty of an offence.
Someone could also leave court with an absolute discharge for a very minor offence, which means the court decides not to impose a punishment because the experience of coming before the court has been punishment enough, but they would still get a criminal record. Any other sentence puts restrictions on an offender’s freedom in one or more ways.