DETERRENCE: RIGHT AND WRONG

The long sentences passed on the offenders in the August riots should have re-opened the question of whether it can ever be right to pass deterrent sentences – but they didn’t. Deterrent sentences are substantially longer than those usually passed for the same offences and are intended to send a message to others not to commit them. The classic case was the execution of Admiral Byng in 1757 for ‘failing to do his utmost’ against the French, which led Voltaire to remark that in England they shoot admirals from time to time ‘pour encourager les autres’.

But what if the others are not encouraged? Or not many of them? In this post I ask if we have any evidence from which to determine whether deterrent punishments work at all; whether they work enough to justify the disproportionate sentences passed in the name of deterrence; and whether there can be a moral case for giving offenders more than their crimes call for in exchange for very uncertain results.

First, some legal background: Section 142 of the Criminal Justice Act 2003 requires Judges to ‘have regard’ to deterrence as one of the five principles of sentencing:

(a) the punishment of offenders,

(b) the reduction of crime (including its reduction by deterrence),

(c) the reform and rehabilitation of offenders,

(d) the protection of the public, and

(e) the making of reparation by offenders to persons affected by their offences.

The Lord Chief Justice (Lord Judge) based much of the reasoning in his long and fascinating judgment in the August 2011 riot appeals (R. v Blackshaw & Others) for upholding most of the sentences, citing Section 142. He also said

It is not, of course, possible now, after the events, for the courts to protect the neighbourhoods which were ravaged in the riots or the people who were injured or suffered damage. Nevertheless, the imposition of severe sentences, intended to provide both punishment and deterrence, must follow.

Note the elision of punishment and deterrence, and the simple, unargued imperative ‘must follow’: he takes it for granted that sentences for crimes committed in the course of public disorder ‘must’ be met with deterrent sentences. While he drew distinctions between the degrees of involvement in the disorder, the overriding need to pass severe deterrent sentences is a theme that recurs throughout the judgment. He was not impressed by defence arguments in the cases of the Warrington and Northwich Facebook non-riots: although no one actually turned up in answer to the call to riot (except the police) the offences still called for four-year sentences. It was the potential to cause disorder and the foreseeability of serious harm that counted, the fear that it engendered, and the ease of summoning rioters through social media websites was a serious cause for concern. The Lord Chief said

The [sentencing] judge was fully justified in concluding that deterrent sentences were appropriate. These offenders were caught red-handed. For the citizens of Northwich and Warrington that was just as well, because as we have explained, and the guilty pleas acknowledged, neither offender was joking when the Facebook entry was set up.

It would be hard to disagree with his view that relatively minor offences like shoplifting or receiving stolen goods became far more serious than usual when committed in the midst of widespread public disorder, and deserved greater punishment because each in its small way contributed to the spread of lawlessness and public fear. But the conceptual questions about deterrent sentences that are seldom asked, and were not in the riot appeals: how can you tell if a deterrent sentence works? And if you can’t tell, is it right to pass one?

No one knows if English admirals ‘did their utmost’ after Byng’s death because they thought they would be shot if they didn’t; or whether they did it anyway. No one knows today whether Blackshaw’s four years have stopped other Facebookers from inciting their friends to riot, or will do in future (although the odds are against Blackshaw doing it again – as they would probably have been if he’d got half the sentence.) What a judge is really saying to an offender when passing a deterrent sentence is: your offence is worth two years; but there’s too much offending like this and people are frightened of it; I have duty to do what I can to reduce crime; therefore you’re getting four years to send out a message to others.

So the offender given a deterrent sentence is being used as a penal billboard to advertise what will happen to others. Is it right to give people longer sentences that their offences really merit (if one concedes that offenders are people) as a means to an end, rather than just punishing them for what they have done? The argument has a long philosophical pedigree. A Kantian would say no, it is never right to treat people in that way, they must never be considered as instruments to achieve an end but as ends in themselves. They should be sentenced for what they have done – severely if necessary – and only for what they have done. But then few criminal lawyers are Kantians.

On the other hand, the utilitarian or consequentialist justifies deterrent sentences on the basis they increase the sum of human happiness (or at least reduce misery), even if that means using the offender instrumentally and giving him more than he deserves. It is a price worth paying. But the utilitarian has the onus of proving that it works: there’s no point in doing something does not verifiably produce the result you want. This is exactly the problem with deterrent sentences: what evidence do we have to show that they work? The problem is symptomatic of one of the larger problems associated with utilitarianism:  by what calculus do you measure actions that cause present pain against the future benefits they are forecast to bring? Anyone advocating a dose of present pain surely has the onus of proving at least two things:  (i) there is evidence or at least a compelling reason to believe that it will, in fact, bring future benefits; and (ii) such benefits outweigh the present pain by a wide enough margin enough to justify inflicting it.

In Admiral Byng’s day you could be hanged for many offences including theft, which was prevalent. Did hanging deter?  You can argue it three ways: no, because people kept on stealing; yes, because there would have been more stealing without it; maybe it worked a bit, and there was less stealing as a result. How does anyone know? And if you lack the evidence for a firm conclusion, is there any justification? My view is that in a matter as important as taking away liberty, the case for deterrence can only be made out if there is clear evidence that large numbers of potential offenders take notice of the billboard carried by people like Blackshaw, and desist from offending. Without that evidence, deterrence is just hit and hope.

[A shorter version of this post appears in  The Justice Gap – http://thejusticegap.com]

Advertisements

DEPORTATION & FAMILY LIFE

This a true story about deportation and family life.

M came to the UK in 2005 from the Indian subcontinent as a student. He had a visa until 2008. While at college he got a part-time job, as allowed by his visa, and sent money home to his family. He was a good student. After a few months he started a relationship with a young British woman, A. She had previously been the victim of a violent attempt by her father and her male relations while she was on holiday in Pakistan to forcibly marry her to another family member, but with the help of the British Foreign Office, she escaped to the UK. In the summer of 2006, A’s family in the UK traced M. They kidnapped him and beat him up, and ordered him not to see A again. M and A courageously ignored them, and in due course they applied to the Home Office for a Certificate of Approval for marriage, which was granted. They married in December 2006 without the consent of A’s family. In  2007 the Home Office granted M leave to remain in the UK as the spouse of a British citizen until 2009, when he was granted indefinite leave to remain. Later, he applied for British citizenship.

While that application was under consideration M charged with fraud and remanded in custody. In December 2009 he pleaded guilty to conspiracy to launder the proceeds of an extensive mortgage fraud, and offences in relation to false identity documents used in the fraud. He had been recruited by the ringleaders to go to banks and withdraw the fraudulently obtained money, in cash, using false IDs. His name appeared on (fake) company documents used to carry out the fraud, but he was not sentenced as one of the main players in it. In March 2010 he was sentenced to four years imprisonment. The Home Office then served him with a deportation notice, to Pakistan.

Now, a bit of law.

Section 32 of the UK Borders Act 2007 (http://tinyurl.com/5trtolx) makes deportation automatic for ‘foreign criminals’ such as M who have been sentenced to 12 months imprisonment or more. This law was New Labour’s attempt to ‘rebalance’ the system: it abolished the Home Office’s discretion to decide whether to deport in individual cases – although they invariably did and there has always been a powerful presumption that deportation for serious criminals is in the public interest.

What Theresa May and her friends dislike is the use that potential deportees can make of the European Convention on Human Rights, made part of our law by the Human Rights Act 1998, especially Articles 3 and 8. Section 33 of the UK Borders Act creates an exception to the automatic deportation provision in Section 32 (http://tinyurl.com/5tap2ze), where deportation would breach the offender’s ECHR rights, or this country’s Convention obligations to him.

Article 3 prohibits torture, and inhuman or degrading treatment or punishment. It prevents the government from returning foreigners to states where there is a real risk that they may be tortured or treated in that way. If you think it is OK knowingly to consign people to that sort of fate, don’t bother reading the rest of this post. Go and pull the wings off flies instead.

Article 8 is more complicated. It protects our right to family and private life from unjustified and disproportionate interference by the state. The framers of the ECHR were for the most part conservatively minded, not to say religiously minded: for them, the integrity of the family was the centrepiece of a good and orderly society. So it is for most of us, including the present government. In the aftermath of the August riots (see last post) the Prime Minister spoke of the need to support the 120,000 most troubled families, who he thinks largely caused the disorder (http://tinyurl.com/3ddrefu). If you think that it is OK for the government to break up families, and muscle into people’s private lives without a compelling reason, stop reading this post and remind yourself of how the KGB or the Gestapo or the Syrian secret police conduct themselves.

Interference can take many forms. It can be directed at one family member, but may harm others. It comes sharply into focus in the manifold cases where the government wants to remove a family member from the UK, potentially causing the break-up of the family. British Courts including the House of Lords and the Supreme Court, and the European Court of Human Rights, have agonised over how to draw the line between interference that is justified and proportionate with the right to family and private life, and that which is not. Most of the time, the decision-maker’s task is highly fact-specific. But the underlying principle is that we all have a legal right to family and private life, because they are so important for individuals and society, and there has to be a compelling justification before that right can be seriously interfered with.

When children are involved, the law requires Home Office to take their best interests and well-being into account as primary (though not paramount) considerations. It has to safeguard and promote their welfare in any of its functions relating to immigration, asylum and nationality. This has nothing to do with the Human Rights Act: the law in question is Section 55 of the Borders, Citizenship and Immigration Act 2009 (http://tinyurl.com/5vcaukr).

Back to M: the Home Office wanted to deport him to Pakistan when he had served his sentence. He had no children, but A loyally stood by him while he was in prison. Their marriage was made to last. The Home Office dealt with M’s argument that his deportation would terminate his marriage and destroy his family by suggesting that A went with him. She was a British citizen and could not be removed from the country. Another branch of the government had rescued her from serious abuse and violence by her own family. No one could make her leave the UK or go back to Pakistan, and for obvious reasons it was the last place she would have gone to, as her life would have been in danger for bringing ‘dishonour’ to her family.

Eventually M’s case came to appeal. Reports by the probation service were clear: he had reformed, and was not likely to reoffend. He had no previous convictions. His crime though serious was not violent or sexual. He was not evil. A decision had to be made: he was liable for deportation under Section 32, and there is a clear and powerful public interest in deporting foreigners who commit serious crime here. He was not at risk of torture etc, but deportation would terminate his marriage and destroy his and wife’s family life. His wife was utterly blameless in all this. For killers, or a major drug dealers – different considerations would apply: the public interest in them not being here would probably be overwhelming, and would outweigh family life claims, but those aren’t the hard cases. It’s where the balance is closer that the difficult decisions have to be made.

So Mrs May and your friends, what would you do with M when you’ve changed the rules? What would you do if he and A had children – who would also have been British citizens? Is it your wish to visit the sins of one family member on the rest, to break up families in every case without exception? Forget about the unpopular Euro-packaging of the right to family life, and look at what the right actually means and what it protects. Which part of family and private life needs less protection by a legal right? Do tell.

You can adjust the immigration rules if you like, and it need not be voted on in Parliament. But unless you scrap Section 55, you’ll have to carry on ensuring that children are safeguarded; and even if you manage to ditch the Human Rights Act, the UK will be a signatory of the ECHR – so you’ll have more judgments from Strasbourg rather than our courts to consider.