The Howard League published an interesting pamphlet last month, 'What if imprisonment were abolished for property offences?'. Unsurprisingly, with such a title, it has attracted significant media attention (see eg, here and here). The pamphlet is written by Andrew Ashworth, Vinerian Professor of English Law at Oxford University, and it seeks to challenge conventional thinking around sentencing policy and practice in relation to what Ashworth describes as “pure property offences”. This category excludes “offences intended to violate other rights as well as property”, such as those which are violent, threatening or sexual. Ashworth's key argument is that in relation to ‘pure property offences’, imprisonment is a disproportionate penalty and should not be available to sentencers.
It is great to see a genuinely big-hitting academic getting involved in the contentious public debate around sentencing. There is plenty to think about in the pamphlet, and as Ashworth himself admits, the ideas in it might be quite tough to sell.
What follows is by no means a comprehensive account or analysis of his proposed scheme, which would have some interesting implications for the prison population, for community penalties and for restorative justice. I am sympathetic to the broad thrust of his arguments, and he is right to challenge any supposition that prison is “the only coinage of censure”. That said, there are some challenging, and potentially problematic issues of principle in his paper and I have looked at a few of those issues which were of particular interest to me.
'Pure property offences'
Ashworth's category of ‘pure property offences’, on which his proposals are based, is both conceptually interesting and empirically problematic. The conceptual point is possibly rather obvious, but interesting nonetheless: 'property' describes not so much the 'thing-ness' of a thing or things, but a set of relationships experienced by a person or persons with the thing: for example, typically, we talk of property rights. In essence, what criminal lawyers refer to as ‘property offences’ (pure or otherwise) are also, necessarily, offences against the interests of a person or persons. The empirical point is perhaps more significant. When victims of 'property' offences recount their experiences of victimisation, it may not be simply by reference to the stolen / damaged 'thing', but may be with reference to a sense of personal violation, or with reference to its impact on their interpersonal relationships.
So, the idea of the 'pure property offence' is not beyond question. But, perhaps fretting about that is getting too hung up on a label. What Ashworth is driving at is that there is a group of offences in relation to which a sentence of imprisonment should never be available, and that that group comprises offences where the offender intends only to violate property rights and not any other kind of right. So, let’s proceed on the basis that there is a plausible category of 'pure property offences' – or whatever other label seems appropriate – and think about the issue of whether a 'no imprisonment' rule is sound.
Some thoughts on (some of) the purposes of sentencing: retributivism and proportionality and their limitations
Section 142 of the Criminal Justice Act 2003 sets out the purposes of sentencing to which sentencers must have regard. I do not propose to rehearse or consider them in any detail here – suffice it to say for now that there is no prescription as to which purpose takes precedence in any given case; and that the purposes are in some instances and in some respects at odds with each other (for example, while the purpose of punishment of an offender might call for a particular sentence for offence x, the purpose of deterrence might call for a more severe sentence for the same offence).
Ashworth’s approach is in the broad tradition of desert theory. We could also describe his approach as broadly retributive. (‘Retribution’, in the philosophy of the criminal law, does not carry the baggage of ‘revenge’ in the way that occurs when the term is used in a more vernacular sense.) Retributivism is what is envisaged by the use of the term ‘punishment’ in section 142. It entails the offender being sentenced primarily with reference to what they deserve by virtue if their freely chosen actions. (Pure retributivism would look only at desert; it would not look to other purposes such as deterring the offender or others from future misconduct, or at the personal circumstances of the offender which might make it more or less likely that they will offend again in the future.)
(A brief aside on the usage of ‘punishment’ in section 142: In philosophy of the criminal law (and indeed in broader usage), ‘punishment’ has a different, broader meaning (I am drawing on Hart’s description here), which denotes the action on the part of the state (carried out by way of the sentencing process) by which the offender receives ‘hard treatment’. That hard treatment might be directed to a range of purposes. Thus, you could be 'punished'. for retributive reasons; and it would be equally logical to speak of being 'punished' for reasons of deterrence or incapacitation etc. I will be using 'punishment' in this 'different from / broader than s. 142' sense from here on.)
The concept which does much of the work in Ashworth’s proposals, and which reflects the broadly retributivist approach, is proportionality. When used in the context of sentencing, proportionality is the idea that the sentence should ‘fit’ (be proportionate to) the offence. It involves identifying ‘how much’ punishment is merited by a particular crime both in absolute terms (this is sometimes known as cardinal proportionality) and relative to other crimes (ordinal proportionality). To construct a sentencing scheme based on proportionality, you need to have plausible answers to questions such as:
- How bad is theft?
- Given our answer to 1, how much punishment should it attract?
- Is fraud worse than theft?
- If so, how much worse is fraud than theft?
- Given our answers to 1, 2, 3 and 4, how much punishment should it attract?
Accounts of sentencing grounded in proportionality, and in desert more broadly, will always struggle to justify a particular quantum of punishment. In essence, we cannot ‘prove’ that offence x deserves punishment y (this is also implicitly acknowledged in the Sentencing Council’s Overarching Guideline on Seriousness). That is not to say that we should just give up – you would hope that by and large our considered intuitions would lead us to defensible and coherent sentencing laws, policy and practice. However, these intuitions may not be universally held (and, by definition, an area of controversy denotes a field where they are not universally held) and Ashworth’s proposals are likely to appeal most readily to those already disposed to similar views of the seriousness of property offences and of the deprivations entailed by imprisonment. Whether arguments grounded in proportionality will, of themselves, persuade those whose intuitions differ is more questionable (there may be other arguments which work better in that context – for example, appeals to cost and effectiveness, and Ashworth does develop these in his proposals).
Is there a role for exceptional circumstances and judicial discretion?
Ashworth’s scheme, in its ideal form, is a scheme without exceptions. However, he does countenance the possibility of tightly drawn exceptions, for political (I use this in its non-pejorative sense) reasons, acknowledging that the climate of opinion might be such that a scheme would only be tolerable with exceptions.
We could also expect sentencers themselves to fight hard to retain as much discretion as possible, and with good reason. If we consider mandatory minimum sentencing, we see that a key problem is that it can compel disproportionate sentencing. This makes clear the importance of a power – grounded in proportionality – for sentencers to depart from the mandatory position under (genuinely) exceptional circumstances. I would suggest that a full commitment to proportionality does not merely permit the existence of an ‘exceptional circumstances’ power to impose a sentence of imprisonment for a (truly exceptional) pure property offence, but it requires such a power.
Do the proposals underplay the significance of fraud?
I have suggested above that the notion of the ‘pure property offence’ is interesting. This may be especially so in the context of fraud. At the heart of fraud is the procuring of (or the attempt to procure) a consent which might not otherwise have been given (note that the Fraud Act 2006 does not require a fraud to be ‘successful’ in order for the offence to be made out). This suggests that fraud is about the violation, through deception, of a victim’s autonomy interests, as well as about their property rights. (We see the significance of deception for autonomy elsewhere in the law: in relation to sexual offences, particular forms of deception can render consent ineffective (I have posted about some aspects of this here.)) The significance of autonomy is reflected in Ashworth’s characterisation of fraud as ‘exploitative’ – an offence in which victims are treated as a means rather than an end. It is also reflected in the role of embarrassment and shame in the under-reporting of fraud against individuals (see for example here) – victims who are ashamed are reflecting a sense of personal violation rather than an exclusive focus on any interference with property rights they may have suffered.
Given what I have said about proportionality above, I will not try to map out a precise relationship between fraud and other offences in relation to appropriate sentences. But I do wonder whether fraud (at least that perpetrated against individual victims) has less of a claim than other crimes to be included in Ashworth’s category of ‘pure property offences’. I also wonder whether, all other things being equal (for example, the financial value of any loss or damage) there is an argument for saying that such frauds might be in fact, by definition, ‘worse’ than an ‘equivalent’ theft or instance of criminal damage, although I would concede there is a risk of comparing apples and oranges here.
What is the role of intention in Ashworth’s scheme?
In his discussion of possible exceptions, Ashworth posits some interesting scenarios which he would treat as still falling within the general scheme of ‘pure property offences’ for which imprisonment would not be available:
The thief who steals a handbag containing an irreplaceable photograph and fails to return it; the person who takes someone’s car from an isolated farmhouse, with the result that a pregnant woman cannot be taken to hospital in time; the thief who steals a mobile phone from a youngster, causing great anxiety to parents who cannot contact or be contacted by the youngster; all these are cases in which a ‘pure property offence’ causes considerable anxiety or distress to the victim or others affected by it, but all of them should be dealt with under the existing policy.
He suggests that notwithstanding the significant collateral consequences which follow from those offences, the fact that those consequences were not intended rules out imprisonment:
Only if it can be shown that the thief deliberately targeted a vulnerable victim should the case be lifted to such a high level of moral turpitude as to justify considering whether, contrary to the general approach, deprivation of liberty is an appropriate response to a ‘pure property offence’.
This strong presumption against the use of imprisonment is consistent with the liberal underpinnings of Ashworth’s approach. It also reflects a form of subjectivism – in this instance, the idea that punishment should only follow in relation to bad consequences which are intentionally brought about. This is a coherent view, but it is controversial. Where a defendant committing offence theft disregards the welfare of others in such a manner that the instance of theft leads to (additional) harm or (additional) exposure to risk (see any of Ashworth’s examples cited above – perhaps the car theft is the most vivid for these purposes), that harm or risk might provide adequate justification for more severe punishment than would have been imposed in its absence, notwithstanding that the harm or risk was not intentionally brought about. The meaning of ‘disregards’ may be significant. If it connotes a conscious taking of a risk, (‘I realise that by stealing this car from this isolated farmhouse, I may be screwing things up badly for the people who live here if they need to get anywhere’), then the claim for more severe punishment may be stronger than if it was a situation of ‘merely’ failing to have regard to those people’s interests by not thinking about them at all. That said, some would argue that as soon as you commit an offence, the risk of ‘bad stuff’ flowing from it is entirely on you, and whether you intended, foresaw, or even could have foreseen the consequences, is immaterial; you caused the consequences, you pay for them. Ultimately, these positions may depend on normative assertions about the purpose and scope of criminal liability and punishment which are not amenable to ‘proof’, but which can only really be tested for coherence, and explored in the context of social conditions. So, as with proportionality, this aspect of Ashworth’s scheme may chime well with those who share his intuitions, less so with those who would style themselves as less thoroughgoing subjectivists, or not as subjectivists at all.