SENTENCING: HUMAN RIGHTS STANDARDS AND NON-CUSTODIAL MEASURES
By Hon. A. Caunhye, Judge
1. CONSTITUTIONAL SAFEGUARDS
The right to liberty is one of the most important human rights and it is provided for and
protected under section 5 of our Constitution. This highly praised right can be curtailed
following a criminal conviction by a court of law. Indeed, one of the exceptions to the
right to liberty is the lawful detention of a person after conviction by a competent court.
Hence, one of the main areas of responsibility placed on the courts is to make sure that
this essential right is not unduly curtailed. There are important human rights standards in
our Constitution which afford guarantees to an accused party before our courts in
determining not only the sentence to be imposed but the duration of the deprivation of
liberty. The sentencing process is an integral part of the hearing process, hence the
importance of a fair hearing. Section 10 of our Constitution which guarantees a fair trial
is another example of other available constitutional safeguards. Section 7 of our
Constitution provides protection from inhuman and degrading treatment and/or
punishment. It is the only law which deals with human dignity.
2. PROPOSALS TO NON CUSTODIAL SENTENCES
2.1 General Principle and Scope of the United Nations Standards Minimum Rule
The universal human rights standards are embodied in the United Nations Standards
Minimum Rule, the fundamental aim of which is to provide a set of basic principles to
promote the use of non-custodial measures, as well as minimum safeguards for persons
subject to alternatives to imprisonment. In other words, the using of imprisonment as a
sanction must be part of a broad range of sentencing options because, by itself, it serves
only limited punishment function. We have read a lot about shortcomings of our prison
system, i.e. overcrowded prisons, discipline problems, etc. In short, the prison system
has not proved to be successful for rehabilitating offenders. It contaminates them
through exposure and other influences. As judicial officers, we have to look at the
sentencing principles and we should not act swayed by emotions when imposing a
particular sentence.
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The United Nations Standard Minimum Rules for Non-custodial measures (The Tokyo
Rules), 1990, United Nations Standard Minimum Rules for the Administration of Juvenile
Justice (The Beijing Rules), 1985 and the Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power, 1985 are the relevant legal instruments dealing
with the above.
The rules are intended to promote greater community involvement in the management of
criminal justice, especially in the treatment of offenders, as well as encourage among
offenders a sense of responsibility towards society. They shall be implemented taking
into account the political, economic, social and cultural conditions of each country and
the aims and objectives of its criminal system. When implementing the Rules, Member
States shall endeavor to ensure a proper balance between the rights of individual
offenders, the rights of victims, and the concern for public safety and crime prevention.
The
rules
also
provide
that
Member
States
shall
develop
non-custodial measures within their legal systems to provide other options, thus
reducing the use of imprisonment, and to rationalize criminal justice policies, taking into
account the observance of human rights, the requirements of social justice and the
rehabilitation needs of the offender.
The spirit of our Constitution and the way it has been drafted shows that the legislator’s
intention was to protect of citizens against undue and excessive practices impinging on
their fundamental rights. It shows a defensive mentality. As pointed out by the
responsibility of the Member State is not only to comply with human rights provisions by
ensuring that no breach is committed but to play a more proactive role. For example in
South Africa, creation of institutions and conditions for positive protection of human
rights of citizens has been promoted and is embodied in its Constitution.
2.2 Stage of Proceedings and Imposition of Non-Custodial Measures
Different considerations need to be had depending on the stage proceedings have
reached when non-custodial measures are being contemplated and imposed.
At the pre-trial stage, the interest of the offender in seeing the proceedings dismissed
has to be weighed against, the protection of society, crime prevention and the promotion
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of respect for the law and the rights of victims. Dismissal of proceedings is a common
non-custodial measure at this stage.
At the trial and sentencing stages, recourse to non-custodial measures should consider
the rehabilitative needs of the offender, the protection of society, and the interests of the
victims, who should be consulted whenever appropriate.
As far as the post sentencing stage is concerned, i.e. where a term of imprisonment has
already been imposed, our law provides for remission and release on parole under
Sections 50 and 51 of the Reforms Institutions Act, respectively.
Non-custodial measures imposing an obligation on the offender, applied before or
instead of formal proceedings or trial, shall require the offender’s consent and decisions
on the imposition of such measures shall be subject to review by a judicial or other
competent independent authority, upon application of the offender.
2.3 Sentencing Options
The choice of the type of sentence which may be imposed is a judicial function. The
commonest type of non-custodial sentences which are imposed by our courts include
probation orders, community service orders, conditional or absolute discharge, drug
treatments, and metal treatments. The limited application of a community service order,
the requirement of the existence of extenuating circumstances in respect of conditional
or absolute discharge and its application being usually limited to trivial offences, place
difficulties on courts to impose such sentences. Moreover, our law makes no specific
provisions for disabled and/or handicapped offenders.
In Mauritius, the court will often obtain and consider a pre-sentence report only before
imposing a probation or a community service order. Although the law provides that the
circumstances relevant to the offence and the offender be taken into account before
passing sentence, there is no such provision for a psychological report for instance. Our
legal system does not provide and require that the court shall obtain and consider a presentence report before imposing a custodial sentence, i.e. before curtailing the right to
liberty of an individual.
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The following which is not an exhaustive list are examples of different types of noncustodial sentences which may be imposed, the appropriateness of which will depend
inter alia on the type of the offence. These include:
1)
Curfew order;
(2)
Exclusion order;
(3)
Action plan order;
(4)
Supervision order;
(5)
Attendance centre order;
(6)
Reparation order;
(7)
House arrest;
(8)
Electronic tagging;
(9)
Flexible sentence.
3. ALTERNATIVE WAYS AND MEASURES TO EFFECTIVELY DEAL WITH OFFENDERS
AND CRIMINAL CASES
3.1. Diversion
Diversion can be defined as the channelling of prima facie cases from the formal criminal
justice system on certain conditions to extra-judicial programmes, at the discretion of the
prosecution. Diversionary options in no way intend to make offenders less accountable
or responsible for their actions but rather to provide offenders with the opportunity to rethink their lives without getting a criminal record. A key aspect should be that, in defined
circumstances, cases should be diverted away from the criminal justice system as early
as possible, either to the welfare system, or to suitable diversion programmes run by
competent staff.
The aims and purposes of diversion are to encourage the offender to be accountable for
the harm caused by him or her, to promote an individualised response to the harm
caused which is appropriate to the offender’s circumstances and proportionate to the
circumstances surrounding the harm caused, and to promote the re-integration of the
offender into society, into the family and the community to provide an opportunity for
reparation, to provide an opportunity to the person or persons or community affected by
the harm caused to express their views regarding the impact of such crime, to identify
underlying problems motivating offending behaviour, to prevent less serious offenders
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from receiving a criminal record and being labelled as criminals as this may become a
self-fulfilling prophecy, to provide educational and rehabilitative programmes for the
benefit of all parties concerned, to lessen the case-load of the formal justice system and
to prevent stigmatisation which may occur through exposure to the rigours of the criminal
justice system.
If there are problems with compliance the ultimate sanction that the prosecutor can apply
is to re-institute the prosecution and continue with the case through to trial.
It is
therefore important to explain the rules clearly to the offender and parent/guardian. If it
is clear that the offender wilfully neglected to comply with the conditions of the diversion,
prosecution remains as the last resort.
At pre-trial stage, the law provides that the Director of Public Prosecutions can only go
by way of reprimand or caution in deciding not to proceed against an offender. If the
DPP is satisfied and there is ample evidence to bring a case to court and establish a
conviction, he can have recourse to diversion instead of proceeding with prosecution.
The decision to prosecute is suspended provided that the offender undertakes to comply
with a diversion programme. The DPP can resort to prosecution in case of non
compliance. Diversion is compatible with the constitutional powers of the DPP and will
not impeach on the separation of powers because the court will retain the final decision
as to whether to accept or reject it. The DPP will operate within a specific line of
demarcation, everything will be done with the consent of the accused party and the
victim will also come into play.
3.2. Plea Bargaining
Plea bargaining will come into play once a case has been lodged and it does not exist in
statutory form. It is not a new concept and the uunderlying idea is to dispose of criminal
cases without resorting to trials. Plea bargaining permits the prosecuting authority and
an accused a party who is legally represented to enter into a plea and sentence
agreement. The court may not participate in the negotiations, but is required to approve
the plea and sentence, before making it an order of the court.
The main principles, rules and features of plea bargaining include inter alia that the
negotiations are non-prescriptive, i.e. it is left to the defense to initiate the process and
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find common ground as far as possible for the purposes of plea and sentence which they
can present to the court and the prosecutor retains his discretion to accept the proposal.
The parties are required to present the court with a well considered agreement,
consisting of both a plea and a sentence.
This agreement should set out all the
substantial facts of the case, all relevant facts relevant to sentence and any admissions
made by the accused.
At a specific stage, the contents of the plea and sentence
agreement are disclosed to an open court, unless ordered in camera by the court itself.
Although the court does not participate in the negotiation process, judicial approval is
required to endorse the outcome of the negotiations. The court retains the duty to
assess the guilt of the accused and the court remains the final arbitrator of what an
appropriate sentence is. The prosecutor or the defence may withdraw from a plea
agreement if the court does not accept the sentence agreement.
3.2.1. Advantages of Plea Bargaining
Lawyers have to contend with overloaded court rolls as well as the backlogs in the huge
number of prisoners awaiting trial results in overcrowded prisons reaching crisis
proportions. It is a method of easing those problems and at the same time complies with
the constitutional obligation of a speedy trial. There are clear advantages of offering the
parties especially in serious fraud cases the opportunity to consider reaching a court
sanctioned agreement at a much earlier stage than hitherto. These relate to the large
financial savings to the public purse that can be made by early disposal of these cases
and easing the strain caused by delay on defendants, victims and witnesses. In some
cases it would also give the investigators and prosecuting authorities more information at
an early stage to allow a more focused and efficient investigation into the role of others
involved in the criminality and with whom no such an agreement is reached.
Advantages to the offender include the fact that cases will be finalised swiftly and lead to
reduced costs, uncertainties of trial will be avoided, conviction may be on a lesser
charge, hence a reduced sentence.
The State on the other hand will benefit from a greater flexibility in disposing of criminal
trials. Protracted and costly trials will be avoided, overloading of court rolls will be
minimized, burden on resources reduced, uncertainties of trial will be averted, so will the
trauma of trial for a complainant who will gain an immediate sense of closure.
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3.3. Out of Court Settlement
A process to settle cases out of court will have particular advantage for the criminal
justice process.
Such a process will, among others not only contribute to saving
precious court time and costs, since cases can be finalized without going to court, and
without the time consuming task of settling factual disputes but will improve the public’s
perception of the administration of justice. The accused person will have the opportunity
not to end up with a record of previous convictions, a factor which often prompts people
to dispute criminal charges. If all parties involved approach the matter with open minds,
it will provide ample opportunity for the application of restorative justice initiatives as an
outcome of an out-of-court settlement. Victims will be protected from publicity and from
having to be subjected to cross-examination, and yet benefit from compensation or
restitution by the accused.
Conclusion
The above strategies must be developed in concert with other stakeholders and criminal
justice agencies and must be developed both at the upfront (before admission) and
further downstream (early release options) of the sentence. The process of developing
and implementing solutions would be neither straightforward nor brief since many of the
current sentencing practices and the attitudes towards sentencing reflect deeply held
cultural and societal beliefs.
Efforts should be carried out simultaneously on several fronts if the prison population
(both daily counts and admissions) is going to be reduced.
This should include
amending or adopting legislation to ensure not only the implementation of diversion, outof-court settlements, plea bargaining and relevant procedures but ensure that all
sentencing options are considered for all offenders and that imprisonment is used only
as a last resort and when all other sentences are deemed inappropriate.
There were suggestions that the French system be followed when sentencing an
offender, in respect of obtaining reports on the latter given that the court does not know
much of the offender when sentencing him/her. It was also suggested that victims be
called at the time of sentencing and that may be the exercise of sentencing should be
left to the jury!
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