Good character
Our interview and observation data suggest that the practice of treating good character as mitigation (which is progressively lost as the number of previous convictions rises) continues in the Crown Court, despite the 2003 Criminal Justice Act’s instruction to treat relevant previous convictions as aggravating factors. It is clear that the severity of a sentence tends to be reduced if an offender has no previous convictions at all, or – to a lesser extent – if he has few or no relevant previous convictions, or if he has not
offended in recent years.
Some of our respondents talked about the offender whose offence can be treated as essentially a blip in an otherwise relatively blameless life. One judge gave the
hypothetical example of a man who has never offended before, has always worked, and went out drinking with friends one night and got into a fight. Such a man would be ‘terrified’ of going to prison and a prison sentence would be counter-productive: it would be ‘an expensive, brutalizing experience’. In such a case, the judge would probably impose a very large fine, although he is aware that in so doing he would be ‘sailing close to the wind’, as the Lord Chief Justice has stressed the need to be tough on alcohol-related violence, and the public want ‘drunken yobs’ in prison.
A different kind of case in which a first-time offender was treated with relative leniency was that of a 38-year-old Senegalese man convicted of theft involving breach of trust. He had taken nearly £5,000 from the bureau de change at which he worked, to give to someone who claimed he had a machine that turned £20 into £50 notes.The judge hearing the case passed a nine-month suspended sentence, and explained that he had initially thought a short custodial sentence was unavoidable, but had been persuaded of the ‘exceptional circumstances’ of this offence. It was, he felt, an isolated incident, given that the defendant was a man of good character, with a good employment record, of whom ‘a large number of people have spoken well’. He gave credit also for the fact that it was the defendant who had alerted his employer to his own misdeed.
A defendant’s ‘positive good character’ – that is, not simply his lack of previous offending, but the productive life he has led – is sometimes rewarded by the sentencer. One
respondent told us that a defendant who has contributed to society, for example by having ‘fought for his country’, is ‘in a different league’ to other defendants.We observed a case in which a 48-year-old woman was sentenced for 18 counts of obtaining money transfer (amounting to a total of £11,000) by deception. Her sentence of a 240-hour community punishment order was described by the judge as ‘extraordinarily lenient’, but he justified it as follows:
You don’t just have no previous convictions but you have positive good character. You have brought up a family in sometimes adverse conditions and you have a good employment record. You have shown genuine remorse and a deep sense of shame. You committed these offences in emotional circumstances and the losses have been made up in their entirety … You ought to go to prison. However, the circumstances of the offence, of your life and your subsequent behaviour lead me to believe that prison would cause more harm to you than it would cause good to the public.
Deprivation and disadvantage
Pleas in mitigation often make much of past traumas, abuse or general disadvantage suffered by defendants, but such factors do not appear to carry a great deal of weight for sentencers. In some of our observed cases, these factors were mentioned in the sentencing remarks, but in such cases it appeared that the judges were acknowledging the issues raised by the defence counsel in the plea rather than giving credit for them.
In interview, some of our respondents talked of giving credit to defendants who have to some extent overcome adversity. For example, one judge commented that as a sentencer you usually deal with people who are, because of their disadvantaged backgrounds, ‘totally feckless’, and therefore it is impressive if you see someone from a ‘terrible background’ who has managed to achieve something. Another respondent described a case in which a young man was convicted after trial of possession of an offensive weapon (a machete) with intent – for which she
sentenced him to a non-custodial penalty, despite the seriousness of the offence.The defendant had grown up on a very rough estate, on which there were powerful influences leading towards unemployment and crime; but he was undertaking an electrician’s apprenticeship and was also involved in training young footballers, for which he travelled across London twice a week. He therefore, in the words of our respondent, ‘had every chance of escaping that predicted
outcome [of unemployment and crime]’, and a custodial sentence ‘risked ruining that chance of escape – ruining his life chances’.
Some respondents indicated that they view early deprivation as relevant when the defendant’s background was exceptionally deprived. It can also be more relevant when defendants are in their teens or early twenties, as these young people have had little opportunity to overcome their problematic backgrounds. One judge described a case he had sentenced the day before our interview, involving a 17-year-old convicted of theft and robbery from an off-licence.The defendant was from a very difficult background, and had been caring for his sick mother for some time; the offence appeared to be ‘a cry for help’.The judge commented, ‘I probably should have sent him down, but I couldn’t possibly … looking at the whites of his eyes.’
As has already been noted, in our sentencing exercise the factors relating to the burglar’s disadvantaged background received low mitigation scores, with many of our respondents observing that such factors are quite typical: it’s ‘what they’re all like’, one said. Indeed, the ‘abused and in care as a child’ factor received the lowest average score of all the items in the exercise. One judge commented that mitigation relating to difficult childhoods ‘is thrown at us time after time’; he went on to say that he is ‘prejudiced’ against such mitigation, as he himself was from a disadvantaged background. (One can safely assume, however, that not many judges share his experience of early deprivation.) The relationship between mitigation and disadvantage is a subject to which we return in the next chapter.
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