Passing Sentence On The Criminal

ASSIGNMENT

It is essential for every court or tribunal, irrespective of their specialty, scope and jurisdiction to have some special powers and authorities so that they make take appropriate decisions and enhance restorative justice (Robinson, 2001). Criminal Courts prosecute individuals or parties for genocide and crimes, even though there are some specific criteria and limitations for every court for dealing with different crimes. For example, a magistrates’ court in UK can give sentences up to 6 month prison or a fine up to £5,000 for crimes like motoring offences, being drunk, minor criminal damages, drug offences, burglary, etc., whereas the crown court can give more sentences for indictable offences like murder, robbery, rape, etc.. As in any kind of crime, the court provides some kind of punishment depending upon the type and severity of the offence, it is essential for the bench of court to have sufficient time to take appropriate decisions (Morrison, 2013). Powers of Criminal Courts (Sentencing) Act 2000 is one of the important law in UK, which provides some special rights to the criminal forums for deciding appropriate punishment for offender and to provide restorative justice to the victim.    

Powers of Criminal Courts (Sentencing) Act, 2000, is made by the Law Commission and Scottish Law Commission in the parliament of the United Kingdom by bringing together various parts of different other acts related to sentence treatment of defaulters and offenders. With several amendments, it consolidated sentencing legislations from twelve separate acts associated with power of courts for dealing with the victims and offenders and their treatments (Henham, 2003). This act includes a number of sections which provide different kinds of rights to the tribunals of UK such as power exercisable before sentence, power related to confidential discharge and community orders, power associated with retrials of youth offenders, powers related to custodial sentences and financial penalties, etc. All these powers of the court help them in providing restorative justice and appropriate punishment to victims and criminals.  

Section 1 of the Powers of Criminal Courts (Sentencing) Act 2000 is concerned with deferment of sentences. According to this section, any magistrate or crown court can defer passing punishment on the offender to enable the panel or jury to become able to properly consider his conduct after the conviction and any kind of alteration in the circumstances at the time of dealing with him (Powers of Criminal Courts (Sentencing) Act, 2000). It is helpful for the jury to take an appropriate decision to provide justice to the victim as well as provide an opportunity to the offender for defending, if he has not done the crime or the crime happened due to some avoidable reason. With the help of using the power of deferring passing of punishment due to genuine reason, the judge can have much better understanding by clearing all his doubts and can reach appropriate decisions. Further, the jury can use this power of deferment only in case of offender consents or in case of assurance of court that the exercise of power would be in the interest of justice (Padfield, 2014). Even though defer in sentencing is helpful in better justice for parities, but if the defer in the sentencing is made without the consent of offender and without assurance of the panel then there will be no good outcomes and significance of this delay in sentence announcement. It will lead to wastage of time and money of not only the panels in courts but also of the victims, offenders and other concerned parties (Great Britain, 2014). Hence, use of this power by the court must be done in only those cases, where the court is assured that its results will be in interest of justice and there is consent of concerned parties also.  

Defer in sentencing can be made with the intention of restorative justice, which brings the victims i.e. those who are affected by a crime and offenders i.e. those who are responsible for the crime interact with each other so that they can collectively resolve how to manage the consequences of the offence and its impacts regarding future. It can take the form of mediation between victim and offender either through direct or indirection communication or through involvement of any their party (Gunn and Taylor, 2014). As this approach focuses on the requirements of victims and offenders at the time of sentencing, victim can take active participation in the process of justice and offenders are encouraged to take responsibilities of their wrongful acts as well as to renovate the harm. For instance, if a person i.e. offender has done a robbery in the house and the house owner i.e. victim sued a case, in that condition, effective opportunities will be provided to the house owner to prove the robbery and provide evidence. Along with this, under restorative justice, the robbers will have the chance of realize the impacts of the robbery on various concerned parties as well as to renovate the consequence of robbery by making apology and returning the stolen amount to owner. Restorative justice is helpful in encouraging and supporting the offender to avoid offences in future (Ashworth and Horder, 2013). With the help of restorative justice, highest satisfaction of victims and accountability of offenders can be achieved.

Schedule 16 of the crime and court act 2013 has inserted a new section 1ZA, related with undertakings to participate in the restorative justice activities, into the Powers of Criminal Courts (Sentencing) Act 2000 in December 2013. According to this section, the court can use its power to defer punishment post conviction for ensuring restorative justice (Crime and Courts Act, 2013). In contrast, the tribunal may suspend the punishment for the purpose of allowing a restorative justice to happen. If the process of restorative justice is performed in appropriate way, it produces personally tailored solutions by involving interface among various concerned parties including victims, offenders and the community (Slapper and Kelly, 2013). Here, the victims can get enough opportunity to be heard by all of other concerned parties in the court and he can talk about the resolution of offences through agreeing rehabilitative activities for the person in fault. The section 1ZA for restorative justice is not only in the interest of the victim but also for the offender, as he gets a way to face the results of his action by recognizing the impact of his wrongful conduct upon others (Neubauer and Fradella, 2013). By recognizing the impacts that it has had upon others, the chances of improvements in behavior of the criminals and stopping future crimes can be increased.  

Restorative justice can take place at any stage of the criminal justice system, as it may be before sentencing, out of the court rooms, or after sentencing. But Section 1ZA of the Powers of Criminal Courts (Sentencing) Act 2000 is associated with restorative justice activities that happen after conviction and before sentence passing. It is essential to perform the restorative justice activities at right stage of criminal judicial system to obtain best results for every participants involved in it, especially for the sufferers (Van Ness and Strong, 2013). As considered in the section 1ZA, the post-conviction and pre-sentence stage is an appropriate stage, where maximum outcomes of the restorative justice can be obtained. Main aims behind pre-sentence restorative justice are to provide opportunities to victims to involve in restorative justice procedure at an early stage of criminal judiciary system so that he can freely talk about and increase his satisfaction (Pre-sentence restorative justice, 2014). Along with this, it also aims to reduce re-offending by facing up to their actions and understanding the impacts of their acts. Here, the offender gets a chance make some amends if it is possible and acceptable by the victims.  

As per the provision of Section 1ZA of the Powers of Criminal Courts (Sentencing) Act 2000, the jury can defer the passing of sentence to allow restorative justice. Restorative justice requirements are among the key requirements that may be imposed without prejudice (Carlen, 2013). The restorative justice requirement as per Section 1ZA of the act is “to needs of participating in an activity, where the participants include offenders and victims; the aim is to maximize the awareness of offenders about the impacts of their acts on the injured party; and provides an opportunity to the victims to complain or express experience of offending and its impacts by other means” (Powers of Criminal Courts (Sentencing) Act, 2000). Even though, restorative justice is beneficial for every party including victims, offenders and other concerned parties, it has some limitations as the process of restorative justice can be implemented in only those cases where it is clearly known that who are the offenders and victims and presence of both parties is also required (Crime and Courts Act, 2013). In case, if any party is absent or not known then the restorative justice process cannot be taken place. For example, in case of a theft, if is not clear or proved that who the thief is or if the thief is not arrested, the restorative justice process cannot be implemented. Sometimes, it can lead to dissatisfaction among the victim and other concerned parties.

As per Section 1ZA of the Powers of Criminal Courts (Sentencing) Act 2000, pre-sentence restorative justice can occur if either the offender is adult or young i.e. a person under 18 years. It can be imposed by any court (Cobley, 2013). It is also helpful in getting better results, as when the offender will be an adult person and his understanding level will be matured, only then he will be able to effectively participate in this stage of the judiciary process and help  the jury to reach at an optimum level (Engen and Steen, 2000). But on the other side, this system seems to be biased, as it is useful only for adult offenders and not for minors who have committed any crime. In the minor age, there are more chances for improvements in offender and avoiding future-offending by realizing the impacts of their actions. Imposition of restorative justice requires the consent of every other party who would be a participant in the activity or offence concerned (Allen, 2013). It may create problems in the process of restorative justice, if any one of the parties related with the case is absent or not willing to defer the sentencing with the intention of restorative justice, the jury cannot defer the sentencing under this section. Due to this reason, other parties including victims may not be satisfied with the judgment due to getting fewer opportunities to make amends.  

In case of imposition of restorative justice need under section 1(3) (b), the duty of giving copies of order under section (5) extends to every individual who would be a participant in the concerned activity (Crime and Courts Act,  2013). It is helpful for every party to get official information about the orders at the time of this process of the criminal judiciary system. But in some cases, it may be very difficult and sometimes impossible to individually provide copies of order to every concerned party (McKittrick and Rex, 2013). For example, in case of any terrorism activity, usually numbers of victims are not limited, as the whole general population is victim of any terrorism attack. Here, if the court wants to implement the restorative justice process then it may be difficult to properly carry out restorative justice, as the court will not be able to give copies of orders to every concerned party i.e. general population under this section. Further, a supervisor can be appointed under the section 1A (2) for the case of deferment of passing punishment and he is not counted as a proposed participant as per the section 1ZA of the act. It helps in ensuring that defer in passing sentencing is made in only that case where it is needed and chances of good results from this defer in the interest of justice are high. He is counted as a proposed participants in the case so that he gets enough right to monitor the whole process of the restorative justice (Matravers, 2013). The supervisor plays a very important role in successful completion of the whole restorative justice process from announcement of defer in sentencing to its final results in the interest of victims, offenders and every other concerned party  

As per the Section 1ZA of the Powers of Criminal Courts (Sentencing) Act 2000, victim is a sufferer of or any other person which is affected by the offending concerned. When, any person commits a crime, always one or more persons are affected and these affected people are known as victims (Oldham, 2013). But in some cases, as above discussed, it may be difficult or impossible to exactly identify the victims. In any case, where there is a requirement of restorative justice, the responsible person behind deferring the sentence should perform all the activities required under restorative justice need as per the issued guideline of the Secretary of State, so that good practices in such activities can be encouraged (Solomka, 2002).. It is helpful in avoiding any kind of biasness with the parties involved and supports in the interest of justice. Further, the amendment made under section 16 of the Crime and Courts Act 2013 i.e. provisions of Section 1ZA of the Powers of Criminal Courts (Sentencing) Act 2000 does not apply in respect of offences or crimes committed before the amendment comes into force. But it is known that there are huge numbers of crimes committed before the amendment and out of them many are pending in courts (Doak, 2005). As there should be no kind of discrimination for providing restorative justice to anyone, the discrimination on the basis of time of commencement of the period leads to unfair justice for victim and offenders of the crimes committed earlier.  

The adjournment under Section 1ZA of the Powers of Criminal Courts (Sentencing) Act 2000 can be up to the date specified by the court and it must not more than six months after the date on which the adjournment is declared (Ashworth, 2010). For example, if the court defers the passing punishment on 1st July 2014 for 1 month with due to restorative justice requirements, the whole process of restorative justice must be completed within that time period and the results or punishments must be passed up to 1st September 2014. As per the section 2(7) of Powers of Criminal Courts (Sentencing) Act 2000, where the passing of punishment to offender has been adjourned under this section it shall not be further so adjourned. It helps in avoiding so much time spending of courts on the cases so that more numbers of other cases can be dealt with (Bateman, 2001). But, there may be some complex cases where the time specified by court is not sufficient to get optimum result and defer in passing punishment needs a time of more than 6 months. Here, it may be very difficult to successfully implement the restorative justice in these kinds of complex cases.  

Regardless of passing any sentence, a tribunal cannot remand the offender on the same occasion in case of deferring the passing sentence on the criminal under this section. It is beneficial for the offender, as defer in sentencing as per section 1ZA is done for benefiting the victims and offenders by mutual communication and not by doing any harm to any party (Herring, 2014). If the court remands the offender on the case occasion, it will not be in favor of offender and the desired outcome from restorative justice will not be achieved. In any case, where the court has deferred sentence of a person in fault under this section, it has the power that at the end of deferment period, to deal with the offender in any way in which it could have dealt earlier with him, if there was no kind of adjuration in passing punishment to him. Further, as per the provision of this act, nothing in this section can affect the power of crown court to force an offender to come to court for judgment at the time when he is called as well as the right of any forum to defer in sentence for any reason for which it may lawfully do so other than this section (Padfield, 2014). Thus, it can be said that the restorative justice is helpful in improving the justice system instead of being any kind of hurdle in the criminal justice procedure.

CONCLUSION

Concluding from the above report, it can be said that Powers of Criminal Courts (Sentencing) Act 2000 provide some special powers to courts at the time of sentencing different crime cases. In December 2013, Schedule 16 of the crime and court act 2013 has inserted a new section 1ZA in the Powers of Criminal Courts (Sentencing) Act 2000, which deals with undertakings to participate in the restorative justice activities. As per this section, the court can defer the passing sentence if it feels a requirement of restorative justice needs, in cases involving offenders and victims. Restorative justice is helpful in improving the justice system instead of being any kind of hurdle in the criminal justice procedure, as this helps in increasing satisfaction of victims and gives opportunities, understand the impacts of their action, make amends and avoid future offending.

REFERENCES

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• Robinson, P. H., 2001. Punishing dangerousness: Cloaking preventive detention as criminal justice. Harvard Law Review. 1429-1456.

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