The Sentencing Framework - Criminology

The Sentencing Framework: Law and Practice

An Introduction to English Sentencing

Courts and Crimes

Offences divided into three categories by the CLA 1977:

1. Triable only on indictment (most serious offences like murder)

2. Triable only summarily (less serious offences, in magistrate’s courts)

3. Triable either way (most burglaries, thefts and frauds)

• First question concerns defendant’s intended plea: if D indicates guilty plea, magistrates must assume jurisdiction and proceed to sentence unless they decide their sentencing powers are insufficient

  • If plea is not guilty, then D will be tried at magistrate’s court unless either the magistrates direct or D elects to have the case tried at the Crown Court

• Magistrate’s courts deal with the least serious offences

Available Sentences

Sentences for adult offenders

• Sentencing court, in all cases involving injury, death, loss or damage, may make a compensation order in favour of the victim, or in the case of death, the victim’s family (S.133-146 of the Code, under SA 2020)

• Most lenient course is to order absolute discharge (S.79)

  • Can also order conditional discharge (S.80)

• Fine is most used penal measure

• Community sentence (s.204)

• Imprisonment (need to dismiss lesser alternatives before this, s.230)

  • Needs to be the shortest term commensurate with the seriousness of the offence (s.231)

Sentences for young offenders

• Group 1: Offenders aged 18, 19, or 20 – termed “young adults” and dealt with in adult courts

• Group 2: Offenders aged 10-17 – dealt chiefly in the youth court

• Most offenders in Group 2 are dealt with by a caution or other form of OOCD

• June 2017: new Sentencing Council guideline for sentencing children and young people came into force

  • Emphasises that the seriousness of the offence committed is only a starting point when sentencing children and young people and there is a need for sentencing to be individualistic and rehabilitation-focused where possible

What is sentencing?

S.401 of the Code: “ “Sentence”, in relation to an offence, includes any order made by a court when dealing with the offender in respect of the offence, and “sentencing” is to be construed accordingly”

Four possible components:

1. Must a person be imprisoned to have been sentenced?

   1. No; community sanctions and fines are sentences

2. Must sentences be punitive?

   1. Punishment is one of the statutory purposes of sentencing set out in S.57 of the Code

   2. Not the only purpose, but the core sentences set out above are by their nature punitive

3. Must all sentences be imposed on conviction?

   1. Not always (e.g. Penalty notice for disorder, a financial OOCD that may be imposed for a set list of offences like theft or disorderly behaviour)

   2. So D does not always have to admit guilt

4. Can sentencing be understood as a process?

   1. Unintended consequences, e.g. losing their job, loss of employment prospects

The principal sources of sentencing law

Legislation, definitive sentencing guidelines, and the common law.

Legislation

• Consolidated into the Sentencing Code

• Role of legislation has largely been to provide powers and set outer limits to their use

  • Has set mandatory sentences, such as mandatory life sentence for murder

• Also have mandatory minimum sentences

Definitive sentencing guidelines

• These are now definitive guidelines for the most significant offences sentenced in magistrate’s courts and also guidelines for most sentencing decisions in the Crown Court

• Essentially provides ranges of sentence for different levels of seriousness of each type of offence and, within each range, indicate a common starting point

• Aim is to structure judicial discretion, not to take it away

Guidelines as process

Sets out eight/nine step process

1. Determining the offence category

2. Starting point and category range

3. Consider any other factors which indicate a reduction, such as assistance to the prosecution

4. Reduction for guilty pleas

5. Dangerousness of the offence

6. Totality principle

7. Ancillary orders

8. Reasons

9. Consideration of time on remand

Departure Test for guidelines

Two-stage departure test in s.59(1) of the Code:

1. Duty to follow or apply the relevant guideline

2. Liberty to depart from it if it would be “contrary to the interests of justice” to apply the guideline in this case

Blackshaw and Others 2011

CoA failed to apply the departure test properly in an appeal against the sentence passed on certain offenders involved in the 2011 riots. Was the first appeal that had specifically raised the question of departures from the guidelines. Judgement gave no proper analysis of the “interest of justice” departure test, no reasoning as to its application to each of the appeals.

Judicial decisions

Two particular types of CoA judgement – guideline judgements and guidance judgements

Guideline judgements

• These are judgements from before the arrival of definitive guidelines in 2004

• A single judgement which sets out general parameters for dealing with several variations of a certain type of offence, considering the main aggravating and mitigating factors, and suggesting an appropriate starting point or range of sentences

Guidance judgements

• Judgements handed down since 2004

• Take their binding force from the general doctrine of judicial precedent

• Three sets of circumstances for delivering this judgement

  • Concern about the interpretation of an existing guideline

  • Where the Sentencing Council does not have a topic on its agenda and there seem to be several appeals that betray uncertainties about the proper approach

  • CoA believes it is right to develop a particular line of reasoning

Magistrate’s courts

• Regulated by the Magistrate’s Court Sentencing Guidelines – differ from Crown Court guidelines in that they integrate the ranges and starting points into a structured decision-making process

Proportionality and Seriousness

The proportionality principle

• In 1990, Home Office clearly showed the intention behind the reforms which became the CJA 1991 was to introduce a “new legislative framework for...