An oft-heard justification is that you cannot treat hardened criminals with kid gloves or you will be perpetrating crime even further. But this argument has no regard for the fact that even hardened criminals are covered by the human rights guarantees in the Constitution and in human rights conventions. Human rights are inalienable and imprescriptible, and they apply to everyone.
On the other hand, the desire to preserve society and prevent crime is equally valid. It would seem that society has been ill-equipped to come up with answers and solutions to address it definitively (Norrie, 1996). It is imperative however to disabuse oneself of the simplistic approach that is often used when analyzing crime rates. Many are wont to believe that a rise in crime rates signifies a social problem, and a decrease is something to be lauded. In fact, a rise in recorded crime rates could actually mean better police efficiency, a willingness of the victims to come forward, and a desire by society as a whole to condemn criminals. The significance of making this initial assertion is explained by Matthews (1995) as follows:
Making this point at the outset is important for two reasons: First it helps to free us from the disarming grip of pessimism that is often associated with the assertion that increases in crime and inevitable and undesirable. Second, it reminds us that crime is a social construct and is the outcome of a complex process of action and reaction. Crime is reducible neither to an act or to a biography. Rather it is a process that requires both an offender and a victim - direct or indirect - to interact within a milieu of formal and informal constraints.
The parliament is vested with the power to create laws that have coercive effect. It is essentially in their province to come up with regulations to maintain order and peaceful conduct in the society, while ensuring that a human rights framework is always in place. Over the past two decades, there has been a steady stream of legislation, marking the evolution of Criminal Justice as it is known in the present time. Indeed, the constant changes in the Criminal Justice Act reflects the constantly changing public mindsets on crime and its concomitant issues.
The Criminal Justice Act of 1991 was introduced to reflect the notion of "just deserts", It also provided for some protections for the accused, in particular, a provision stating that past offenses should not be taken into consideration when sentencing a felon, except in certain circumstances. However, some feel that in practice, proportionality gives rise to many problems and within six months of being in force, the CJA 1991 was already being undermined. (Hudson, 1994). There are also those who perceive the XJA 1991 as a case of government valuing efficiency over democracy (Lacey, 1994). Said Windlesham (date): "Of all the lessons to be drawn the first is the way in which so many of the provisions which found their way into law derived from the perceived demands of local, sectional or national public opinion rather than from practical experience or