Taking the strait-jacket off: persistence and the distribution of punishment in England and Wales

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Abstract
Among its many provisions, the Criminal Justice Act 1991 contained, in its original s 29(1), a prohibition on the use of previous convictions in the determination of sentences for current offences. This particular provision was the subject of much criticism before and after its coming into effect, so much so that within a year of its implementation it was replaced by a new section which, arguably, could have precisely the opposite effect. What follows is an attempt to chart the short life and sudden death of the original s 29( 1). The importance of such a prohibition to a 'deserts-based' sentencing framework will be discussed and some possible explanations for its removal will be suggested. Some of the implications of the change will also be examined, both in terms of its impact on the coherence of the sentencing framework that remains, and its possible impact on future sentencing trends.

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