Caught in the ACT - The Negligible Impact of the UK Three Strikes Burglar Policy

By Kim Workman

Last Monday’s announcement by Jamie Whyte that ACT would introduce a three strikes policy for burglars caught me by surprise - so much so that I initially attributed the policy to the Conservative Party – an early morning blunder on which I blame the combination of diabetes and a surfeit of easter eggs.   More importantly, the rationale for this policy contradicted everything I thought I knew about burglars and punishment.  In particular, ACT claimed that (a) most burglaries are committed by sophisticated professional burglars, (b) burglars make a rational choice to offend, based on a calculated risks/benefit analysis; and (c) prison acts as a deterrent. 

Most of my concerns were picked up by media commentators and fellow blogsters.   The Waikato Branch of the Law Society questioned the deterrence theory, Justspeak  challenged the ‘rational choice’ theory, and pointed out that the science of brain development tells us that our young people have a reduced ability to be aware of the consequences of their actions. This means a deterrence-based criminal justice system is likely to be especially ineffective in reducing offending by young people.  Read more

But it was  veteran journalist and blogster Bryan Edwards, who gave the most compelling description of the way most burglars behave – one that resonated with my own experience as a police officer. 

There are several problems with deterrent sentences. The first is that they don’t work. …………….In general the people we call ‘criminals’ aren’t particularly good at thinking or weighing the consequences of their actions. The burglar won’t  put down his jemmy to consider Dr Whyte’s increased penalties for burglary. He doesn’t think, “Hmm. I’ve been banged up twice already for nicking stuff from people’s houses. Previously I might have got 18 months, but now I’ll get three years. I really don’t think it’s worth the risk. I’ll go and get a job instead.”

Leaving aside the burglar’s chances of getting a job with two convictions under his belt already, he’s unlikely to go through this process of considering the length of sentence he’ll get for a third offence. By definition, recidivist criminals aren’t good at learning from their mistakes. So our burglar is more likely to think: “I’ve done 30 burglaries, got nicked twice, not a bad average. And I probably won’t get nicked again anyway. I’m better at it now. Learnt a lot in the slammer.” The near total failure of the New Zealand police, who are brilliant at catching murderers, to catch burglars might suggest that he has a point.

The New Zealand Herald’s editorial, 'Act Party's burglary law will strike out'  provided a thorough analysis of the policy, which resulted in a rejoinder from ACT defending the policy. 

Some aspects of the policy are unsettling.  The idea of increasing the length of imprisonment for offenders, relates to only 15% of cases where burglars are caught – and after they have traumatised   burglary victims.  It is not proactively concerned with reducing the number of victims.  In an interview with Newstalk ZB’ Mike Hosking Jamie Whyte said that when the law is introduced anybody that’s got two or more strikes will automatically go on to three strikes.  Well, Attorney General Andrew Finlayson has already agreed that such a measure is inconsistent with the right to be free from retroactive penalties and double jeopardy affirmed in the Bill of Rights Act. This view was confirmed by the Court of Appeal in Belcher v Chief Executive of the Department of Corrections. 

Reducing Burglary by 35% ? - Yeah Right

The one attractive aspect of this policy was that the since the introduction of the UK Three Strikes legislation in 1999, it had reduced the burglary rate by 35%.  I was unsure of this claim for three reasons.  First a policy that successful would have been widely publicised; and yet I had not seen any research about it.  Second, it seemed odd that it would have that effect when the average time burglars spend in UK prisons is 7 months, compared to 16 months in New Zealand.  

Third, ACT’s statements on the issue were inconsistent: 

“a similar policy introduced to England and Wales in 1999 had resulted in a 35 per cent drop in burglaries”.  Waikato Times

“The policy is modelled on a three strikes for burglary law introduced in England and Wales in 1999. Burglary in England has since dropped by 35 per cent since the introduction of the three strikes. After a third conviction for burglary offenders in England are imprisoned for three years with parole. The New Zealand Herald

In the policy launch,  Jamie Whyte said: 

Three strikes for burglary was introduced to England and Wales in 1999. As in New Zealand, burglary was out of control and given a low priority by the police and the courts. A Labour government passed a three strikes law whereby a third conviction for burglaries earned a mandatory three years in prison.  Burglary in England has fallen by 35 percent.

The ACT Policy Statement however, is more cautious:
 

Since a three-strikes-for-burglary policy was introduced in the England in 1999 the number of burglaries has declined by 35%. Some of this decline is surely due to the three strikes policy and generally tougher sentencing introduced in the 1990s.

What is the Truth?

How true is this claim?  I contacted the Editorial Board of the UK Prison Service Journal, (of which I am a member), and other UK criminologists and criminal justice professionals, including Professor Mike Hough, the UK expert on sentencing policy.  They came back with the same response - there is no suggestion at all that the three strikes legislation has played any major part in the reduction in burglary.  While there has been a 35% drop in burglary in the UK since 1999, there were similar drops for car crime and other property offences, for which there is no three strikes provision.  A Rethinking media statement, ACT fabricates claim that UK 3 Strikes for burglars reduced crime, explains what did assist in reducing burglary.
 

More significantly, the UK three strikes provision is has been applied  in only 22% of all 3 strikes cases.  The minimum term was introduced in December 1999 under the Powers of Criminal Courts Act. By the end of 2008, some 3,018 offenders were convicted of a third burglary. But just 684 – or 22 per cent – of them have been handed three years or more while up to another 517 were given three years but then had time taken off for a guilty plea.

Some 463 offenders were not sent to prison at all, including 257 who were given a community sentence, 114 who had a prison suspended, eight who were handed a fine and 18 who were given a conditional discharge. Of those who were sent to custody, more than 500 were given less than a year.

Why is this?  Well I can only speculate, but there are two issues that stand out.  First, the UK has a set of sentencing guidelines which guides judges in sentencing practises, in order to avoid the inconsistent practises which are a hallmark of New Zealand justice. ⁽¹⁾

The UK Sentencing Guidelines require the sentencing judge to consider factors relating to the level of harm caused by the offender, the extent of culpability, seriousness of offences, and any personal mitigating factors.  Having done that exercise, the Judge is then instructed that:

 ‘where sentencing an offender for a qualifying third domestic burglary, the Court must apply Section 111 of the Powers of the Criminal Courts (Sentencing) Act 2000 and impose a custodial term of at least three years, unless it is satisfied that there are particular circumstances which relate to any of the offences or to the offender which would make it unjust to do so.'

It may be that the judiciary consider all the standard factors relating to the crime of burglary, and determine the penalty.  If they decide at that point that three years imprisonment is not appropriate, they  then set about to satisfy themselves that an ‘exceptional circumstance’ exists, which ensures that a more appropriate penalty applies.
  

One could argue that the Judiciary resent applying a sentence that is determined not by themselves, but by Parliament.  Mandatory sentences undermine the expertise and independence of judges who do not take kindly to any violation of the principle that  one of the cornerstones of our democracy is that sentencing in individual case is rightly a matter for the judge. 
  

They are assisted in that by case law, and sentencing precedent.  The UK Court of Appeal, in an opinion by Lord Chief Justice Wolfe, in a case involving mandatory life sentences for second serious violent or sexual crimes, ruled that a finding that the offender “was not felt to present a significant risk to the public” would satisfy the “exceptional circumstances” test. ⁽²⁾
 

The UK Sentencing Advisory Panel, which advises the country's most senior judge, has also assisted signalling  that burglars could escape a prison sentence if they are drug addicts or alcoholics, under the ‘exceptional circumstances’ clause. 

There is another reason.  Judges know that imprisonment rarely acts as a deterrent, a fact borne out by the deterrence research to date.  As a result, nearly 80% of all third time burglars escape the three year sentence. 


Legislation that is resisted to that degree, is legislation not worth having.  Far better that we focus on front end policies that reduce the prevalence of burglary and involve the Police and community partners in strategies that work. 

References
1.  Goodall, Wayne and Russil Durrant, 'Regional variation in sentencing: The incarceration of aggravated drink drivers', Australian & New Zealand Journal of Criminology June 3, 2013.

2.  Jones, Trevor, and Tim Newburn. 2006. “Three Strikes and You’re Out: Exploring Symbol and Substance in American and British Crime Control Policies.” British Journal of Criminology 46(5):781–802.