Let us try to approach this subject by way of thought experiments:
- Imagine two defendants convicted of the same crime, possibly related to storage of class A drugs or money laundering, but the alleged crime is of no importance. There are other defendants who played a greater role in the criminal activity and managed to hide away a substantial amount of money, but they do not concern us. Defendant A has been well advised by the criminal fraternity and has previously placed all is assets into the name of an uncle, such that he apparently lives off benefits and occasional employment and has only 100 GBP in his bank account. Defendant B lives a relatively normal life with a family and children, has a reasonable job and assets to a net value of 200k GBP and maintains that he did not know what was going on in any detail. They both plead not guilty, but both are characterised as career criminals by the prosecution and are subsequently found guilty. Both get, let us say, 5 years.
Both are also subject to a confiscation order of 100K GBP for which they will be jointly and severally liable. Both are in prison. A loses nothing, B loses his life savings. Moreover, A’s confiscation order is settled. He does not contest it but merely says he cannot pay. He serves most of his sentence in “Open” conditions. But B does contest it and therefore does the whole of his sentence in closed conditions because, as his confiscation order is not settled, he is deemed to be a flight risk. None of this was discussed with the jurors who are blissfully unaware of the sentence and the confiscation order. Indeed, the judge deliberately wished to avoid discussing the harshness of the sentence and the potential disparity of treatment for fear that the jury might be unduly influenced.
- Now, let us add in a slight variation to the thought experiment. They both plead guilty but, Defendant A is over 65 years old, he is retired, his wife has never worked. The couple live off his state pension which stops as soon as he goes to prison. Two people convicted of the same crime, given, apparently the same sentence, yet one will, again, lose more than the other because he has lived longer, and has not led a criminal lifestyle! Moreover, neither judge nor jury was asked for their opinion on this further punishment by way of suspension of his pension rights.
3. What I am trying to highlight here is the just the tip of the iceberg of seemingly conflicting sentencing practices. It seems absurd to me and most people I know, for example, that any premeditated crime involving violence should be punished more leniently than tax evasion. Moreover, my view is that juries should be made aware of the consequences of their decisions before reaching a verdict, and that would include the likely length of sentence, any possible Confiscation Order and any loss of pension rights.
4. Though guilt and innocence are not absolutes but belong to a spectrum of behaviours that tempt all of us at some time in our existence, for specific crimes or misdemeanours quantities of assets are surely not an indicator of severity of the criminal activity. The idea that a crime involving the theft of 10 million is more serious than the theft of 1 million is, for me, nonsensical. Admittedly, a person who steals a loaf of bread is not in the same class and that sort of “crime” should be in a different category altogether, but 1 million, 10 million or 20 million is all the same thing. Why should the severity of a crime without violence be judged more severely according to the value of the amount that was supposedly earned? Indeed, one could say that the criminal who managed to get away with a million would have taken 20 if he or she had had the opportunity. Has there ever been a case where a real criminal has stopped and said that he or she will not maximise his or her gain, except, possibly, if taking more would have enhanced the possibility of getting caught. (That last exception is important in the whole domain of criminality, for it is usually the fear of getting caught, not the probable sentence, which is the greatest deterrent for the criminal). It is as if the theft of two loves of bread is a worse “crime” than stealing one.
4. In the interests of brevity, I will not attempt to get into the debate about “Joint Enterprise” (nor do I have sufficient experience of those matters to add anything to the existing debates) but let me conclude with some proposals that would make things fairer, in my opinion, in the hope that people will comment and explain what errors they feel I have made.
- Potential sentencing implications and any punishment such as Confiscation Orders or loss of Pension rights should be explained to the jury before they attempt to reach a verdict.
- The notion of joint and several liability for Confiscation Orders should be abandoned in favour of a case-by-case analysis.
- The quantity of assets involved in a crime should not be taken as an indicator of the severity of the crime.
- Each defendant should be judged and sentenced independently according to the actual role played, not the supposed level of knowledge that he or she might have had or the overall severity of the crime.