Not according to Andrew Ashworth, QC
In a pamphlet produced for the Howard League for Penal Reform, the Sentencing Advisory Panel’s ex-Chairman, Professor Andrew Ashworth QC, asks ‘what if imprisonment were abolished for property offences?’ Doing more than prompting discussion and debate, Ashworth is not shy of exposing his personal opinions however radical they may be. He states that ‘imprisonment should be abolished for property offences’ but refrains from incorporating offences which are ‘violent, threatening or sexual’ within the definition of a ‘property offence’. Thus ‘robbery [which requires the use or threat of violence], blackmail [which requires a threat], and burglary of a dwelling [which is intended also to violate the right of privacy which is guaranteed under Article 8(1) of the European Convention on Human Rights]’ are crimes excluded from Ashworth’s ‘property offence’ umbrella. However, crimes sufficing under this umbrella and which Ashworth suggests should not induce imprisonment; include theft, fraud, handling stolen goods and criminal damage [excluding criminal damage by fire].
Section 7 of the Theft Act 1968 states that a person who is found guilty of theft shall be liable for a maximum of seven years; whilst a guilty conviction for fraud carries a maximum sentence length of ten years and/or a fine according to section 1(3)(b) of the Fraud Act 2006. Handling stolen goods, under section 22(2) of the Theft Act 1968, carries a maximum sentence length of fourteen years; whilst a person found guilty of criminal damage could be sentenced to a maximum of ten years under section 4(2) of the Criminal Damage Act 1971.
What is Ashworth’s rationale for removing quite heavy custodial sentences from these crimes? One word answers that question – ‘disproportionality’. Ashworth states that ‘sentences of imprisonment are disproportionate to these offences and should therefore not be available to the courts.’ Ashworth gives an example of theft of clothing worth £250. On one side of the coin he proposes that this crime should not award a custodial sentence at all based on the opinion that the offence is ‘not sufficiently serious’, that ‘theft from a shop valued at £250 does not do great harm: it is non-violent, non-threatening and non-sexual’ and that ‘it is not serious harm’. However on the other side of the coin a contesting factor is that this theft ‘deprives the owner of a small shop of a significant amount of money and in times of austerity that should not be undervalued’.
His core argument is that imprisoning a thief for depriving a victim of his right to property is disproportionate to depriving the thief of his personal liberty- prioritising Article 5 of the European Convention of Human Rights [ECHR] over Article 1 of Protocol 1 of the ECHR. Ashworth accounts for the turmoil which prison brings including ‘uncomfortable conditions and isolation from family’. But is it right to prioritise this specific Article 5 right over another right, when the ECHR itself has not prioritised this right nor has it made any inclination that this right takes preference over Article 1 Protocol 1? Moreover though he has given thought to the distress which prison brings, has he thought of the effects which this proposition could have on the relationship between shop-keepers and troublesome customers? Would respect for and authority of shopkeepers be gone? The prospect of prison and its after-effects of weaker job prospects and criminal records, although strangely appealing to some, still scares some people. With this threat taken away and replaced with a fine or community service, perceived as soft touch law, theft could not only increase but the thieves could also find surety in the fact that they would not face prison. Would justice have served the right person then?
Given section 152(2) of the Criminal Justice Act 2003, which states that a custodial sentence should not be imposed unless the offence(s) were ‘so serious that neither a fine alone not a community sentence can be justified’, is theft, fraud, handling stolen goods and criminal damage so serious that the courts have to bypass issuing a fine or community sentence? Undoubtedly each answer will differ depending on each person’s level of morality and their personal view of societal norms but Andrew Ashworth doesn’t seem to think so. But with a stretched financial purse and with cuts being made left right and centre, is Ashworth just using the humanitarian-like rationale of ‘disproportionality’ as a misconception to come at the common political spat of ‘prison overcrowding’ from a different angle, dressing it up in a different outfit?
One thing is for certain… the English and Welsh judicial system confers varieties of punishments on criminals catering for ranges of ages and types of crime. Though these other punishments, apart from custodial sentencing, including ASBO’s, fines, community service are genuine and in some cases do deter crime, can justice be served by removing custodial sentences from theft, fraud, handling stolen goods and criminal damage? Is it really disproportionate to infringe a criminal’s right to liberty in favour of prioritising a victim’s right to property? If Ashworth’s propositions were implemented this may tackle the problem of prison overcrowding but what would be the price we would have to pay in return… a cultivated society with a tainted vision of integrity creating soft justice?
Zehra Buyukdeniz – Urban Lawyers – August 2013