The l990s was a decade in which sentencing law and criminal justice in general received a great deal of attention from both governments who appear to have been vying with each other as to who could be perceived to be the toughest on crime.

moment to perhaps fund a drug habit. Custody is more likely to deter 'white collar' or professional crime where planning and forethought are involved and do seem to merit a custodial sentence.

Criminal Justice Act l993

Governments always wish to increase the level of fines imposed on offenders no doubt to increase revenue for the costly criminal justice system. One of the less than useful measures introduced under ss 18,19 of the l991 Act, unit fines was promptly disposed of again under s 65 of the l993 Act [now consolidated under s 128(2) Power of the Criminal Courts (Sentences) Act 2000 requiring the fine to reflect seriousness and take account of the offender's means.] Experimental trials used a maximum figure of £25 per unit subject to the offender's ability to pay but by the time the scheme had statutory force the figure had increased to £100 per unit which rather begs the question why they bothered to have the trials at all. The result was embarrassing and damaging publicity for the government. In one instance an offender was charged £1200 for dropping litter the maximum penalty having been imposed because the offender refused to disclose his income. Clearly the basic rationale of the l991 Act of matching offence seriousness to the penalty imposed was being brought into disrepute and placing an onerous burden on lay Magistrates to 'get it right', although another aim of the l991 Act was being achieved referred to in the l990 White Paper 'Crime, Justice and Protecting the Public' '...to impose substantial fines on an increasing minority of offenders with greater resources...'. There is nothing wrong, in principle with charging someone with a high income a larger fine than someone on a low income so that as between the two offenders the penalty hurts just as much but this measure serves to emphasise the lack of any proper trial or foresight as to consequences when rushing into such ill advised legislation. Ashworth points out that rather than just abandoning the Scheme it could have been restructured and this certainly does seem to be a 'kneejerk' reaction to political embarrassment.

Criminal Justice and Public Order Act l994

This Act achieved most notoriety by virtually removing the 'right to silence' (ss 34-38) whereby someone could realistically face being sentenced for an offence they did not even commit, but more specifically in relation to sentencing in l993 the Home Secretary Michael Howard stated that it was time to 'abandon trendy theories that try to explain crime by blaming socio-economic factors, criminals should be held to account for their actions and punished accordingly' Youths were singled out for special treatment - maximum detention in a young offender institution was raised from 12 months to two years and Crown Courts were empowered to sentence defendants as young as 10 for serious offences.

The established practice of reducing a sentence based upon a prompt guilty plea was given a statutory basis but from this time onwards judges have become increasingly concerned that various enactments are removing their discretion in relation to sentencing matters.

Crime (Sentences) Act l997

This Act can certainly be described as controversial in its bid to remove judicial discretion in relation to sentencing and the Lords forced many concessions rendering major provisions almost meaningless. Like other controversial enactments of the former conservative government inspiration was drawn from American law and practice which seems unworkable and inappropriate in the UK thus producing what many would consider ludicrous and inhumane results based on the albeit more stringent American experience (e.g. life for shoplifting). Nevertheless the concept of 'three strikes and you're out' was doggedly rushed through just before the General Election. S.2 provides for a mandatory life sentence for the second serious offence. This provision is not so unrealistic when considering the l99l Act sentencing aims of protecting the public and the seriousness of the offence. S.3 provides for a minimum of 7 years for a third Class A drug trafficking offence but this is realistic based on case law anyway. S.4 provides for a minimum 3 year sentence on a domestic burglar convicted of a third offence. As a result of the Lords amendment none of these provisions are mandatory, a court can avoid passing the 'prescribed sentence' if 'it would be unjust in all the circumstances to do'. Ashworth argues that in light of this a court could pass the normal sentence of 18 months to two years on a third time domestic burglar with impunity. In any event many would argue that it is the professional burglar who should receive a higher sentence due to the aggravating factors of this offence e.g. purpose and design/high value of goods stolen as opposed to petty offenders who generally act on impulse but no specific sanction was made against them; the assault on youth crime being the major item on the political agenda and this is still the situation. This lack of proportionality would seem to be a breach of basic human rights principles. The Act has been described as 'rubbish', which on balance does not seem too harsh a criticism. Clearly, however the current labour administration do not share this view. The somewhat diluted measures are consolidated in the Powers of the Criminal Courts (Sentencing) Act 2000 but when considering that there is for example, under S.152 of the 2000 Act a 20% discount for an early guilty plea along with the other Lords amendments it is questionable why both governments proceed against fierce opposition from the Law Lords who have effectively won the day and retained their discretion rendering the provisions complex and unnecessary. In addition this measure along with many others may embarrass the current government in that they could be in breach of their own Human Rights Act l998.

Crime and Disorder Act l998

This was the first major piece of criminal justice legislation by the incoming labour government. On a positive note the l998 Act [S 81(1)] introduced the Sentencing Advisory Panel comprising inter alia distinguished academics such as Professors Wasik and Ashworth. Their remit is to provide expert guidance to the Court of Appeal and the Home Secretary on sentencing guidelines.

S.1 introduced the Anti-social Behaviour Order which can be made against anyone over the age of 10 years for causing or being likely to cause harassment, alarm or distress. S. 1(1)(b) places an intolerable burden on Local Authorities and the police to seek these Orders having duly consulted each other first. There appears to be a civil burden of proof rather than a criminal one with the alleged victim or victims not even having to give evidence, but if there is found to be any breach a Magistrates' Court may imprison the 'offender' for up to six months. In fact the police and local authorities seem very loathe to use this new power. The government have admitted that only 140 have been made in the two years since the provision came into force and the Conservative opposition have pointed out that a 'Protocol' advising the Police service as to using the Orders was only issued in June this year. One of the reasons may be that the Police or local authorities could be in breach of the Human Rights Act l998 - Article 6 European Convention on Human Rights provides the right to a fair trial and it does not seem to be fair that someone can have such an order made against them without proper evidence that can lead to imprisonment. No doubt they do not have the resources anyway which would involve surveillance and evidence gathering in problem areas. From the writer's conversations with police officers recently applying this provision does not even seem to occur to them. Clearly they can be forgiven for failing to keep pace with the remorseless changes when they are so undermanned. The government have not addressed the issue of training they just expect police, local authorities and lay magistrates to implement complex legislation which is clearly unrealistic.

In l994 Michael Howard refused to specifically deal with racist violence in the Criminal Justice and Public Order Act despite the vicious killing of Stephen Lawrence by five white youths in l993. This seems even more deplorable when considering the importance he clearly attached to protecting landowners from hippies and hunt saboteurs. To their credit the current government have dealt with this serious issue by increasing the sentences for assault under the Offences Against the Person Act 1861 [now S.153 Powers of the Criminal Courts (Sentencing) Act 2000] where there is clear evidence of racial aggravation by two years and for common assault the penalty is increased from 6 months to 2 years imprisonment. Other enactments have also had the maximum sentences increased if racial aggravation is present - The Criminal Damage Act l971, Public Order Act l986 and Protection from Harassment Act l997 . In addition the Sentencing Advisory Panel have produced detailed guidelines in relation to such offences.

CONCLUSION

Youth Justice is still the major plank of the government's legislative programme with debates currently taking place in the House. Despite a vast range of measures in both the Crime and Disorder Act l998, Youth Justice and Criminal Evidence Act l999 and consolidation in the Powers of Criminal Courts (Sentencing) Act 2000 clearly they have not finished yet with further measures and amendments being proposed in the Criminal Justice and Court Services Bill. Before giving the Police time to catch up with the Anti-Social Behaviour Order they are trying to give them more teeth by providing for whole areas to be subject to night-time curfews in relation to children. If this rather drastic measure comes into force parents had better beware - if they do not get them back before 9 p.m. after the swimming trip or whatever they could be in trouble. Again this is an example of the current government introducing the Human Rights Act l998 but then actively breaching the spirit of fundamental human rights by their own policies which in some respects are even more right wing than the conservatives. In the minutes of Standing Committee G concerning the Criminal Justice and Court Services Bill the Home Office Minister Paul Boateng when asked by the conservative Mr Hawkins whether he has any concern that under the proposals 18-21 year olds will serve their custodial sentence in an adult prison promptly responded 'no I do not' subject of course to much qualification of this remark, but this is surely a drastic and retrograde step aimed at 'streamlining the prison service' which could be taken as an acknowledgement that as a result of government policy inherited from the conservatives the alarming number of persons now in prison is not likely to be reduced even in relation to 18-21 year olds. Sentencing aims have also become more right-wing due to the extreme politicisation of criminal justice with the emphasis now being very much on retribution and deterrence. This combined with drug treatment and testing orders, parenting orders, child safety orders and community safety orders etc. etc. will clearly involve major state intervention with a punitive desire rather than a genuine desire to help families who need it most. The inevitable conclusion has to be drawn that due to the sheer weight and complexity of the legislation however well meaning it may be in some respects the criminal justice system cannot keep pace with the never ending changes aimed primarily at pleasing the electorate and whether even this goal is achieved is a moot point. There must after all be more than 140 instances where an Anti-Social Behaviour Order would be appropriate.