The nuances of criminal law
“I myself think that we lawyers who become judges are not very competent, are not qualified by experience, to impose sentences where any discretion is to be exercised. I do not think it is in the domain of the training of lawyers to know what to do with a fellow after you find out he is a thief. I, myself, hope that one of these days, and before long, we will divide the functions of criminal justice”.
Aforesaid emphatic words by Justice Frankfurter (former judge of the Supreme Court of USA) emphasise on significance of sentencing in criminal justice system. According to his theory, a criminal trial comprises two completely different stages. The first stage deals with the determination of guilt (conviction) while the second stage deals with determination of punishment (sentencing), both stages must be treated differently by the Criminal Procedure Code as merger of both can kill the cause of justice. Furthermore, sentencing is a very delicate task; its performance demands inter-disciplinary approach, special set of skills and professional training.
In the last few decades, mainly due to the materialisation of the concept of a welfare state, emergence of fundamental human rights and stress on study of sociology of crime, the world has witnessed practical manifestation of Frankfurter’s theory. One such manifestation has appeared in the form of “right to presentence hearing” in a criminal trial. The underlying principle behind right to presentence hearing is that simultaneous hearing on the question of guilt and sentence often deter the counsel for an accused to address the court on mitigating circumstances if any, with nervousness that the judge may convict too readily.
The enactment of Sentencing Reform Act 1984, Federal Sentencing Guidelines 1987 in USA and Criminal Justice Act, 2003, The Legal Aid, Sentencing and Punishment of Offenders Act 2012 in United Kingdom, has provided various safeguards and guidelines in relation to sentencing. In both the jurisdictions, by virtue of the above guidelines and safeguards, right after conviction of the accused, the judge and attorneys mutually agree on a sentencing date, a probation officer is appointed to prepare and submit a Presentencing Investigation Report (“PSIR”) in the court prior to the sentencing date.
A PSIR is basically a deep study of defendant’s juvenile record, adulthood record, criminal record, parole record, custody record, gang affiliation, community ties, substance abuse history, physical and mental health, financial circumstances, employment history, education history, marital history. In addition to above, PSIR also focuses on circumstances of the offence, impact of offence on the victim and the possibility of rehabilitation of the defendant. On the day of presentence hearing, before announcing the sentence, the court is duty bound to consider the mitigating and aggravating factors discussed in the PSIR.
In 1973, realising the contemporary developments in field of penology, India reformed its Code of Criminal Procedure (CrPC) by introducing the idea of presentence hearing in a criminal trial. Presentence hearing is provided in Section 235.2 (in a trial before court of Sessions) and Section 248 (in a trial before Magisterial court) of Indian CrPC. The Supreme Court of India has never compromised on significance of pre-sentence hearing and has on numerous occasions emphasised on obligation of hearing the accused under section 235(2), for instance in Muniappan vs State of Tamil Nadu, the Apex court adumbrated that “The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence. The court, while on the question of sentence is in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction”.
Unfortunately, lawmakers in Pakistan have failed to reform the criminal code in line with modern socio-economic developments, particularly in relation to sentencing procedures and guidelines. Our CrPC lacks a rational, structured and consistent sentencing policy; it is based on an obsolete framework which confers unstructured discretion in criminal courts in matter of sentencing. Due to absence of sentencing legislations, rules and guidelines, the courts exercise sentencing discretion in an arbitrary and unbridled manner; such exercise often leads to disparity in quantum of sentence even in cases involving similar facts.
Under the existing scheme of arrangement in CrPC, there is no concept of a separate pre-sentence hearing, anything which the defendant wishes to submit before the court in relation to extenuating circumstances, it has to be done before the conclusion of arguments and the announcement of judgment. The process of sentencing is regulated by few inadequate sections, as they either categorise the sentences in respects of court’s hierarchy or at the most explain the concurrent nature of the sentence. For instance, Section 31-35 CrPC relates to sentencing powers of courts, Section 245(2) governs passing of sentence by magistrate, Section 245-A provides for procedure in case of previous conviction, Section 368 provides for procedure of death sentence, Section 374 provides for confirmation of death sentence and so on. However, no section embodies the concept of right to presentence hearing.
The situation in Pakistan is appalling as unguided sentencing powers (with courts) and absence of right to presentence hearing clearly violate Article 10 A (right to fair trial) and Article 25 (equality of citizens) of the Constitution of Pakistan. There is a dire need to revisit the provisions of CrPC, especially those pertaining to sentencing. A three member “Sentencing Commission” should be constituted comprising sitting judge of the Supreme Court, Minister of Law Justice and Human Rights and Chairman of Pakistan Bar Council Human Rights Committee. The said commission after due deliberations and necessary consultations shall send recommendations to the parliament regarding required amendments in the CrPC. The proposed amendments must provide for, a clear bifurcation between conviction stage and sentencing stage of a criminal trial, PSIR mechanism, a proper presentence hearing and other necessary sentencing guidelines.
Lawmakers in Pakistan need to understand that right to presentence hearing is a valuable and cardinal principle of natural justice; its presence is sign of a rational, just and progressive society. In a welfare state, the purpose behind enactment of criminal law is not to inflict unjust and severe punishments rather to rehabilitate the deviant members of the society. Modern penal law is predominantly based on theories of deterrence, incapacitation, denunciation, reparation and rehabilitation. The concept behind these theories can only be brought in to reality if sentencing process is given due importance in the criminal justice system.
It is not the punishment which matters rather it is the style of punishment which speaks about legitimacy, workability, efficacy and compatibility of the criminal justice system. Whatever the quantum of a penalty may be, it should be awarded in a justifiable and reasonable manner in light of modern sentencing guidelines. A chocolate stealer from a tuck shop and the thief of gold from jewellery shop cannot sentenced on the basis of same standards.