Rehabilitation of Offender: Chapter 8 of Legal Aid, Sentencing and Punishment of Offenders Act 2012 - Coursework Example

TABLE OF CONTENTS The Legal Aid, Sentencing and Punishment of Offenders Act, 2012 2 Introduction 2 Chapter 8 Legal Aid, Sentencing and Punishment of Offenders Act 2012 3 Implications of Amendments of LASPO Act 2012 5 Case Law 8 Previous Legislation Relating to Rehabilitation prior to the LASPO 2012 Act 12 Conclusion 20 Bibliography 23 The Legal Aid, Sentencing and Punishment of Offenders Act, 2012 Introduction Rehabilitation is a philosophy of punishment that believes in reforming a criminal into a law abiding citizen. It aims to achieve this by means of a suitable correctional intervention. The ideas and practices related to this concept had been in place from as far back as the 18th century. Nevertheless, it is difficult to describe rehabilitation as a concept1. The confusion associated with rehabilitation arises from various factors. One of the most important of these causes is that rehabilitation can be considered to be a general objective, as well as a process or set of practices. In addition, rehabilitation becomes difficult to define due to the influence of related terms. A few of these are reform and redemption, which have been in existence from quite some time. There are other terms, such as reintegration and re – entry, which are of more recent origin2. Chapter 8 Legal Aid, Sentencing and Punishment of Offenders Act 2012 In March 2010, it was recommended that the administration of civil and criminal legal aid should be brought under the aegis of the Ministry of Justice. This was adopted in the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 20123. Several changes have been effected by chapter 8 of the above Act to the Rehabilitation of Offenders Act 1974. These initiatives change the rehabilitation periods provided by this Act, as well as its scope. On account of these amendments, custodial sentences that are not more than 4 years in duration, can be treated as spent. Moreover, there have been amendments to the times at which specific convictions can be treated as spend4. This Act is very important as it provides an opportunity to offenders, to begin a new life, after having been punished for their crimes. Moreover, certain convictions are deemed to have been spent, after the convicted person has completed a portion of the sentence. Thereafter, the offender, in the normal course, is not required to disclose information regarding his conviction. There are a number of exceptions to the application of this rule. There is considerable variance with regard to the applicable rules relating to the rights of offenders to withhold information about their conviction5. Thus, the LASPO Act 2012 has amended several provisions relating to legal aid, sentencing and punishment of offenders, bail, remand of juveniles, release of offenders on licence, and has done away with sentences for public protection. Furthermore, it has provided for out of court disposal of criminal proceedings, and the rehabilitation of offenders. Moreover, it has created certain novel offences, such as threatening in public or on school premises with a blade or point, causing grievous injury by driving dangerously, squatting in a residential building, and purchasing scrap metal for cash6. In addition, Section 139 of the LASPO Act 2012 amends the Rehabilitation of Offenders Act 1974, by permitting 30 months to 4 years to be spent in 7 years, which is a reduction from life; 6 to 30 months to be spent in 4 years, which constitutes a reduction from 10 years; and less than 6 months to be spent in 2 years, which is a reduction from 7 years. A year after conviction, fines are rendered spent. With regard to youth, convictions become spent after half the time of their conviction. A distinguishing feature of these provisions is that they have a retrospective effect7. Implications of Amendments of LASPO Act 2012 The LASPO Act 2012 adopts several new measures that provide protection to the public and reduce reoffending. For instance, this Act establishes a new system of youth remand and sentencing structure. This mechanism provides greater flexibility to the courts while deciding upon suitable disposals, with regard to offenders8. This Act also provides for more stringent community sentences to be imposed on offenders. Moreover, the Act permits prosecutors to appeal against bail decisions. On account of this right, prosecutors can argue against the issue of bail to offenders on the grounds that these offenders pose a danger to society or could escape to other countries9. Furthermore, it brings in a more stringent sentencing regime. This new system replaces the imprisonment Public Protection sentence. In addition, sentences for murders that have been committed with hate as the motivation, and which are based on disability or transgender have been modified. Thus, the period of sentencing for hate crimes has been doubled to 30 years10. As such, under the Rehabilitation of Offenders Act, certain sentences become spent after a certain period of time. This period is called the rehabilitation period and it differs from crime to crime. This rule applies to all convictions that are made in a criminal court, juvenile court, offences in service disciplinary proceedings, and orders made under the Mental Health Act of 1983. The length of the rehabilitation period depends on the nature and length of the sentence. The punishments can be in any form, such as imprisonment, fines, surcharge orders, probations, or conditional discharges. The period of rehabilitation commences from the date of conviction and in general depends upon compliance with the sentence11. Moreover, in the context of ex – offenders who do not fall prey to recidivism, the Rehabilitation of Offenders Act 1974 promotes routes into employment. However, this is not to be achieved at the cost of compromising the safety of the public. The extant position of the Rehabilitation of Offenders Act 1974 fails to achieve this balance. Several studies have shown that recidivism decreases whenever the offender obtains employment12. However, employers tend to withdraw their offer of employment, if the applicant has a record of convictions. In other words, criminal convictions that have not been spent are likely to pose a strong barrier for employment. It is the intention of the government to suitably modify the Rehabilitation of Offenders Act 1974, so that ex – offenders obtain employment. At the same time, the government is also seized with preserving the required safety measures relating to employment and proceedings13. A difficulty was perceived with the rehabilitation periods, which were seen to be of considerable duration. It has been stated that such extended time periods ignore the fact that the majority of the reconvicted offenders, re – offend during the first year of their being set free. For instance, the Ministry of Justice 2000 Reconviction Cohort data discloses that after a quarter of a year of being released, 19.9% of offenders had been reconvicted. The corresponding proportion was 43% for those convicted within a year, and 74% for those convicted within nine years. More than 50% of those convicted within the nine year follow up period had been convicted within the first year14. On being analysed further, this data reveals that offenders in the age groups of 18 to 20 years and 21 to 24 years had been reconvicted to a much greater extent than the offenders in other age groups. When reconviction is assessed on the basis of gender, it becomes evident that males are reconvicted to a higher degree than females15. Consecutive and concurrent terms of imprisonment continue to be treated as a single term under the provisions of the LASPO Act, with regard to determining rehabilitation periods. If an offender commits a further offence, then under the provisions of section 139 of this Act, the entire applicable rehabilitation periods persist for the duration of the longest of these periods16. Case Law In general, a significant difficulty associated with offenders with short fixed terms related to the difficulty experienced by the prison system. This was with regard to providing them with adequate rehabilitative training before their minimum term came to an end. These issues came to the fore in Secretary of State for Justice v Walker17 and R (on the application of Wells) v Parole Board18. In these cases, the concerned prisoners had been unable to complete the required courses and training that were necessary for establishing before the Parole Board that they were not dangerous criminals19. In the Walker case, the High Court ruled that the Secretary of State for Justice had committed an unlawful act by not enabling the prisoner to complete the courses in question. This was upheld by the Court of Appeal. As the prisoner had failed to complete the necessary courses his detention was continued. This was upheld by the Court of Appeal20. In both these cases, the prisoners had been sentenced to imprisonment for public protection (IPP). With regard to the release of an IPP convict, the legislation states that release can be effected only by the Parole Board. The court’s decision was that the failure to provide the necessary courses to the IPP convicts could result in the infringement of Article 5 of the European Convention on Human Rights21. The cost of certain metals has shown a rapid increase in the commodity markets of the world. This has caused a significant increase in metal theft. Valuable metals are available abundantly, and such metals can be traded anonymously for cash through dealers in scrap metal. This explains the rapid increase in this acquisitive crime. In fact, the incidence of this crime is of the order of 7,000 per month. The Scrap Metal Dealers Act 1964 has been the governing act for the scrap metal industry. This Act is outmoded and lacks adequate powers to address criminal activities in this industry22. After considerable analysis of this problem, the Home Office concluded that the metal recycling industry, which constitutes the principal market for stolen metal, had to be dealt with in a more appropriate manner. There was also the perception that more efficient legislation was required to address the irregularities in this industry23. The LASPO Act 2012 holds out the hope of rectifying the drawbacks with the previous legislation. For instance, it makes it a criminal offence to purchase scrap metal with cash payments. It also provides for more stringent punishment for such offences. The prohibition of cash payments holds out the possibility of significantly controlling scrap metal crimes. In addition, to the LASPO Act 2012, the Home Office has also expressed its desire to implement a new regime with regard to the scrap metal industry. This is due to the fact that this industry has been engaging in criminal activities with impunity24. In the case of consecutive and concurrent terms of imprisonment, the LASPO Act 2012 provides that all of such sentences should be treated as a single term. This is for the purpose of calculating the period of rehabilitation of the offender. This rule does not apply in case of reoffending, and section 139 states that in such instances, all the applicable rehabilitation periods will be for the duration of the longest period of rehabilitation25. Previous Legislation Relating to Rehabilitation prior to the LASPO 2012 Act The right not to disclose previous convictions under the Rehabilitation of Offenders Act 1974 is subject to a number of exceptions. A person is required to disclose past convictions if he is a witness in a case before the court. This also applies to a person who aims at becoming a medical practitioner. In addition, an individual applying for a licence to operate a casino or a shop to sell firearms, has to disclose information regarding previous convictions. Moreover, persons, involved in activities with children or vulnerable adults, have to disclose their convictions26. The objective of the Rehabilitation of Offenders Act 1974 is to facilitate offenders to free themselves from the stigma attached to their previous misdeeds. In general, this Act adopts a scheme that considers conviction spent after a certain period elapses subsequent to the conviction. This period is termed the rehabilitation period27. The law regards rehabilitated persons as individuals who had not committed or been sentenced for the offences, whose term of sentence had elapsed. As a result, a rehabilitated person, in general, need not disclose about his spent convictions to a potential employer. Moreover, in civil proceedings, queries relating to spent convictions and evidence of such convictions is not admissible28. However, spent conviction details have to be provided while attempting to undertake certain occupations or professions. These have been stipulated by the Home Secretary. Some instances of this are with regard to taking up a career of barristers, solicitors or judges. The exceptions under section 4(1) do not apply universally to criminal proceedings. In other words, there is no restriction specified by statute regarding the evidence that can be provided. Moreover, there are no restrictions on the questions that may be asked about spent convictions29. Moreover, every reasonable effort is to be made to avoid reference to spent convictions. As such, counsel is invariably required to procure the authority of the judge, prior to mentioning a spent conviction. Such authority is provided by the judge, only where the interests of justice require it. The sentencing judge may refer to spent convictions, only if such reference is necessary to explain the severity of the sentence being passed30. In addition, Section 6 (4) states that rehabilitation of a convicted person is possible, only that person has not been reconvicted during the rehabilitation period. Conviction for an offense other than a summary offence will make the rehabilitation period for the first offence to run till such time as the rehabilitation period for the subsequent offense expires. Consequently, persistent offenders may not be able to have spent convictions31. Furthermore, section 140 of the Act has made amendments to the UK Borders Act 2007, with the express intent of excluding Immigration and Nationality decisions from the purview of the Rehabilitation of Offenders Act32. The LASPO Act 2012 has made certain modifications to the operation of youth rehabilitation orders. In order to promote flexibility, this Act permits change to the length of the order. The intention is to make the length of the order changeable to such extent that it can be made suitable for the timescale of any related requirements. This is an initiative that has a two way implication. Thus, such orders can be terminated earlier, without having to take the permission of the court for a formal revocation. Such instances involve completion of all the requirements33. At the same time, the end date can be extended up to six months, if the specified requirements have not been satisfied, within the three year maximum to complete the requirements. With regard to such extension, the court has to be approached. Moreover, extension is permitted only once34. Flexibility in youth rehabilitation orders has been improved significantly by the removal of the necessity to obtain the evidence of a medical practitioner approved under the Mental Health Act 1983. This relates to obtaining a mental health treatment requirement. However, in such cases, the necessity to obtain the consent of the youth has been retained35. These initiatives are similar to the legislative amendments to the community order for adults. However, certain modifications to the youth rehabilitation orders by the LASPO Act 2012 have extended the maximum daily curfew length to 16 hours from the previous 12 hours. Moreover, the maximum period has been made a year from the previous six months36. These changes have been criticised, because children find it very difficult to comply with such curfew requirements. The situation is clearly evident with regard to children living in chaotic conditions. In such cases, the adults cannot be relied upon to promote compliance. In many instances, the chaotic conditions are created by these adults. With regard to children who live in homes where the adults suffer from mental health or substance abuse problems, there is every possibility of their safety being compromised37. Moreover, such children are at great risk of breaching the curfew requirements. The LAPSO Act 2012 has brought about several changes, and some of these are described in the following. There has been a reduction in the rehabilitation period for offenders. This ensures that convictions are spent after a reduced period. Moreover, the rehabilitation period begins on the date that the sentence is over and not on the date of conviction38. With regard to repeat offenders, the rules that apply to offences that can be tried either way are applied to summary offences. Only those offences are held to be indictable, which are committed during the rehabilitation period. Furthermore, the UK Border Agency has not been brought under the purview of the Rehabilitation of Offenders Act 1974. This has been done, in order to permit them to operate entirely outside the Act39. Thus, the UK Border Agency has been enabled to consider all convictions, irrespective of whether they have been spent, while taking decisions in the area of immigration and nationality. In addition, these provisions have a retrospective effect, so that these changes will apply to offenders with previous convictions40. The scope of the LAPSO Act 2012 has been extended to the longer sentences. This will provide enormous benefit to several ex – offenders. At the same time, some ex – offenders will have to undergo longer rehabilitation periods under this scheme. Furthermore, offenders sentenced to detention and training of less than six months have to undergo rehabilitation for a year from the end of their order, if they had been aged between 12 to 14 years at the time of their conviction. With regard to those who had been aged between 15 to 17 years at the time of conviction, the corresponding period would be 3.5 years41. With regard to offenders sentenced to a detention and training order that is greater than six months, the following conditions will be applicable. If their age had been between 12 and 14 years at the time of conviction, then they will have to undergo rehabilitation for a year. The corresponding term is 5 years for those whose age was between 15 to 17 years at the time of conviction. Moreover, some ex – offenders, who had been aged between 12 to 14 years at the time of conviction, will have to undergo rehabilitation for a year more, in order for their convictions to become spent42. At one point of time, rehabilitated persons were described as individuals who had committed an offense either once or on a few occasions, undergone the sentence imposed upon them by the court, and then changed into respectable and hardworking citizens. Thereafter it was recognised that the stigma related to a conviction, was powerful enough to prevent the convicted person from obtaining employment 43 In order to overcome this defect, it was soon understood that the rehabilitation laws had to be suitably changed. Such change would have to treat most of the older convictions, after the lapse of a sufficient period of time, as spent. This would enable the offender to achieve social integration. Apparently, this makes a case for treating the rehabilitation of offenders in terms of restoration. Such an approach has its own difficulties. This was shown by scholars like Rotman and Raynor, who have contended that great care should be taken to prevent the limiting of rehabilitation to restoration to a previous condition of adequacy. As has been frequently observed, the previous condition of many offenders had not been desirable. Hence, it makes little sense to restore their condition to such a previous state44. Moreover, restoration to a prior state does not include new social or psychological developments, or the development of new skills. Therefore, rehabilitation is not of much use, unless it goes beyond mere restoration. What is required is improvement over the previous condition of the offender. Hence, rehabilitation can be understood as an intervention that brings about positive change. It has been the practice with criminological theories to consider the offender as either passive subjects whose behaviour is shaped to a major extent by forces beyond their control, or as active agents who deliberately undertake actions45. Even if a person has not been subjected to the procedures of the criminal justice system, it is possible that such individuals could gain access to services or sources of help that can be broadly classified are rehabilitative. For instance, those who abuse drugs could have committed offences by partaking of prohibited substances. Moreover, offenders who had not been caught by the law could be referred by the criminal justice agency to rehabilitative help. For instance, the diversion schemes refer juveniles and the mentally ill offenders to sources of treatment or help. This has emerged as an alternative to punishment. Some researchers have contended that punishment could have a harmful effect in some cases. These people have argued that the offender is entitled to protection from unreasonable damage caused by punishment. Hence, to offset any damage, the punishment should also include rehabilitative measures. The principal philosophies associated with sentencing are those of consequentialism and retributivism46. A rehabilitation based sentence is founded on a consequentialist philosophy, which justifies punishment on the basis of this future consequences. Conclusion The LASPO Act 2012 has brought about several changes to the Rehabilitation of Offenders Act 1974. With these changes, there has been an amendment to the timescale for considering an offence to have become spent. Another change is that there has been an extension to the scope of the legislation to custodial sentences that are not more than four years. As such, these changes have the capacity to improve rehabilitation of children and could enable them to start afresh in life. The timescales for considering offences by children to be spent have been decreased in comparison to those for adults. This reduction was in recognition of the fact that offending could be an element of adolescent development. In addition, individuals undergoing rehabilitation, on being convicted for summary only offences could have their rehabilitation period extended according to the rehabilitation period accompanying the subsequent conviction. Moreover, if the rehabilitation period related to the summary only offense was about to be over, prior that of the extant rehabilitation period, then it will be deemed to be unspent, till the completion of the current rehabilitation period. Moreover, the extant legislation reduces the rehabilitation period of individuals below the age of 18 years by half. This concession is provided in recognition of the difficulties encountered by such persons, while procuring further education and employment. It has also been conceded that a period clear from offending at a younger age is of much greater importance than at a later age for the same period. Whenever younger persons abstain from reoffending, it follows that these individuals have been adequately reformed and that they are at a very low risk of repeating their mistakes. The amendments effected, therefore, retain these important aspects. However, an 18 months buffer is to be maintained between custodial sentences that are not more than six months in duration. This exception is aimed at preserving the necessary balance in the order of sentences. Furthermore, in the majority of convictions, the period of rehabilitation had been mitigated. Offenders are regarded as rehabilitated for a specific offence after the conviction or caution for that offence has become spend. A major feature of these changes is that offenders need not disclose that they had been convicted, for most of the purposes. Thus, the LASPO Act 2012 revises the Rehabilitation of Offenders Act, so that ex – offenders are provided with an opportunity to reintegrate into society after they have served their sentences The notion of sentencing is based on principles that justify the infliction of punishment by the criminal courts. Along with deterrence and incapacitation, rehabilitation forms the three principal consequentialist strategies. These strategies are aimed at reducing crime. The writings of penal reformers and theorists over two centuries have promoted rehabilitation as the basic humanitarian response to wrongdoing. It can be surmised that the enactment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, has brought many changes to rehabilitation procedures that could help the offenders as well as society, by improving their opportunities to undergo reformation. 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