👩🏽⚖️CLP 6-Sentencing and appeals Flashcards
Purposes of sentencing
- reduction of crime (inc. by
deterrence) - punishment of offenders
- reform and rehabilitation of offenders
- protection of public
- reparation by offenders to victims
When do the court not need to have regard to the purposes of sentencing?
-sentence fixed by law
-Offence subject to statutory minimum
-Defendant classed as dangerous offender
Who is the sentencing council made up of?
□ 8 judicial members
□ 6 non judicial members
What does the sentencing concil have the power to do?
prepare sentencing guidelines in relation to any sentencing matter including for specific offences
What should the sentencing council have regard to when deciding sentences?
-sentencing practice
-need to promote consistency
-impact on victims
-need to promote public confidence
-cost of different sentences and their effectiveness in reducing re- offending
-SC’s monitoring of the application of the guidelines
How is prevalence relevent to sentencing?
Should pass same sentence for same type of offence, BUT in exceptional circumstances, may treat offence more seriously
Eg if:
-particular offence prevalent in area
- evidence the offences are causing harm to the community at large
What are the 8 steps for arriving at a sentence?
- determine category
- shape provisional sentnce (aggrivating/mitigating)
- factors indicating a reduction (eg. helping pros)
- reduction for guilty plea
- extended sentence in set circumstances
- totality principle
- compensation and other ancillary orders
- give reasons
What is considered when determining the offence category and what does this include?
Principle of seriousness, includes: culpability and harm
What are the levels of criminal culpability
1.Intention to cause harm
2. Recklessness as to whether harm is caused
3. Knowledge of the specific risks entailed by their actions, but don’t intend to cause the harm that results
4. Negligence
What type of harm must be considered?
harm which the offence
(i) caused
(ii) was intended to cause
(iii) might foreseeably have caused
Examples of types of harm?
(a) physical injury
(b) sexual violation
(c) financial loss
(d) damage to health
(e) psychological distress
What are the categories of offence?
Category 1-greater harm AND enhanced culpability
Category 2 -greater harm OR enhanced culpability
Category 3-lesser harm and lower culpability
What 4 aggravating factors MUST the court use to treat the offence as more serious
Statutory aggravating factors:
1. Previous convictions (if reasonable to do so considering nature (similar type) and time elapsed)
2. Offences committed on bail
3. Racial or religious motive
4. Hostility based on sexual orientation or disability
What aggravating factors MAY the court consider?
a. Planned/premeditated offences
b. groups or gangs
c. Deliberate targeting of vulnerable groups (eg elderly/disabled)
d. drink or drugs
e. Use of a weapon
f. Deliberate and gratuitous violence or damage to property, beyond that required to carry out the offence;
g. the abuse of a position of trust;
h. Victim working in public sector/providing a service to the public
i. For property offences, the high value (including sentimental value) of property to the victim
j. failure to respond to previous sentences.
What mitigating factors MAY the court consider
- Acted on impulse
- Experienced a greater degree of provocation than normally expected
- Mental/physical illness/disability
- Particularly young or old
- Played only a minor role
- Motivated by genuine fear
- Attempts to make reparation to victim
What does the court consider at step 2: shaping the provisional sentence (starting point and category range)
- Aggravating and mitigating factors
- Relevant statutory thresholds
What aggravating and mitigating factors MUST the court consider and what MAY they
MUST: statutory aggravating factord
MAY: other aggravating and mitigating
Who does the reduction in Sentence for a Guilty Plea’ Definitive Guidelines apply to?
all Ds over 18
What is the level of reduction in sentence for a guilty plea NOT dependent on?
- Strength of prosecution case
- Remorse shown by D
How much will guilty plea reduce a sentence by?
- 1/3-at ‘first stage in proceedings’ (unless would have been unreasonable for them to do so)
- 1/4- at PTPH
- 1/10 (max)-on 1st day of trial (at the door of the court)
- 0-during trial
What is the totality principle?
When sentencing, court will take into account current and associated offences and overall sentence should:
* Reflect all of the offending behaviour with reference to overall harm and culpability with the aggravating and mitigating factors relating to the offences and those personal to the offender
* Be just and proportionate
What are associated offences?
◊ offence Ds been convicted of in same proceedings for which they’re to be sentenced at the same time
◊ Offences the D has asked the court to take into consideration (TIC) eg. want to ‘wipe the slate clean’
If asking the court to take into account associated offences, what much such offences be?
Of a similar nature to, or less serious than, the offence(s) for which the defendant has been convicted.
When taking into account associated offences, when will they be considered?
After determining starting point, as an aggravating factor
Examples of compensation and other ancillary orders
- Pay compensation
- Confiscation
- Destruction
- Forfeiture
What is a concurrent sentence?
when 2 custodial terms are deemed served at same time
When is a concurrent sentence normally appropriate?
- Offences arise out of same incident or facts (athough dont have to)
- Series of offences of same/ similar kind, especially when committed against same person.
What is a consecutive sentence
1 custodial sentence starts after other finishes
When is a consecutive sentence normally appropriate?
- Offences arise from unrelated facts/incidents
- Offences committed in same incident are distinct, involving an aggravating element that requires separate recognition;
- Offences are of the same/ similar kind but the overall criminality will not sufficiently be reflected by concurrent sentences.
How does the totality principle affect consecutive and concurrent sentences?
- Consecutive-usually impossible to find just and proportionate sentence by adding together notional sentences=need downward adjustment
- Concurrent-as above, need upward adjustment
When sentencing three or more offences, should concurrent or consecutive sentences be used?
May need a combination
When can the defence solicitor ask the Probation Service to prep a pre sentence report
Before the first hearing when an adult is pleading guilty and likely to be sentenced in MC
Is the court required to follow a pre-sentence report?
No, court will decide whether to use to sentence
What must a solicitor ensure the D understand before a pre-sentence report is obtained?
-Report provides no indication of sentence and all sentencing options remain open to the court
-Court may proceed to sentence without a pre-sentence report if the court considers a report unnecessary
When MUST the court obtain and consider a pre-sentence report?
Before forming an opinion on:
1. whether custody threshold passed/ how long custodial sentence should be
2. whether the threshold for imposing a community sentence has been passed/requirements under a generic community order.
UNLESS in the circumstances it considers it unecessary
What is a plea in mitigation?
Penultimate stage in the sentencing process
Is a speech by defence advocate to persuade court to impose most lenient sentence which court could reasonably be expected to give for that offence
Normal structure of plea in mitigation?
- Likely sentence (starting point)
- offence (minimise aggravating and emphasise mitigating
- offender info
- suggested sentence (low end of realistic range)
What information about the offender could the defence mention in the plea in mitigation?
-Age
-Health (long term illness/mental illness/alcohilic)
-Cooperation with police/early plea
-remorse (positive steps)
-Character (distinguish prev convictions/wintess)
-Family circumstances
-Low risk of reoffending (if addressed in report)
Types of sentence from most to least serious
- Custodial
- Suspended sentence
- Generic Community Order
- Fine
- Discharge (conditional or absolute)
When can the custody threshold test be applied?
When the court has discretion as to whether a custodial sentence can be imposed
What is the custody threshold test
Is the offence/combination of associated offences so serious that neither a fine alone nor a community sentence can be justified
Can a custodial sentence be imposed if the custody threshold isnt passed?
no
Must the court impose a custodial sentence if the custodial threshold test is passed
No, ie where there’s a guilty plea or v strong mitiation
What makes the custody threshold test not applicable
where offender fails to express a willingness to take part in a community sentence
How long MUST a custodial sentence be?
MUST be for the shortest term (not exceeding the permitted maximum) that the court thinks is commensurate with the seriousness of the offence/combination of offences
Maximum sentencing powers for MC and CC
MC-6mo for 1 offence, 12,mo for 2 or more either way offences imposing 2 consecutive 6mo periods for each offence
CC-max permitted for that offence
What must the sentencing court impose for dangerous offenders?
(a) automatic life imprisonment;
(b) discretionary life imprisonment; or
(c) an extended sentence of imprisonment.
What is early release?
Adult custodial sentence up to 2y (committed after 1 Feb 2015)=automatic release into community on licence 1/2 through sentence subject to post sentence supervision
Sentence over 2y=automatic release on license after 1/2
UNLESS an ‘offender of particular concern’ can apply for parole and can be released on license any time form 1/2 to end subject to similar supervision
Eg terrorism/child sex offences
When can a suspended sentence be imposed?
Custodial sentence of 2w -2y (or 12mo for MC)
How long can a sentence be suspended for?
6mo-2y
What are the ‘periods’ of a suspended sentence?
- ‘Operational period‘=Period sentence suspended for
- ‘Supervision period‘=court orders D to comply with certain requirements (same as GCO)
For a suspended sentence, can the supervision period be longer than the operational period?
No
When will imprisonment take effect for a suspended sentence?
◊ D fails to comply with any requirements imposed
◊ D commits further offence during the operational period and court sentencing for the ‘new’ offence orders that the original sentence of imprisonment is to take effect.
Where will a breach of suspended sentence be dealt with?
◊ Original sentence by MC=MC or CC
◊ Original in CC=CC only
What will the court do for a breach of a suspended sentence?
- Activate original custodial sentence unaltered
- Acvivate custodial sentence, but for a shorter period of time
- More onerous community requirements
- Extend the operational or supervision period
MUST do 1 or 2 unless unjust in circumstances, new sentence will be consecutive
Can also impose fine up to £2500 where doesn’t give immediate effect to custodial sentence
When can the court make a Generic Community order
It thinks the offence/combination of offences was serious enough to warrant the making of such an order.
Options for a Generic Community order
Unpaid work
Activity
Programme to address behaviour
Prohibited activity requirement
Curfew
Exclusion from place
Residence
Mental health treatment
Drug/Alcohol rehab
Supervision (app with probation service)
Attendance centre (if u25)
Foreign travel prohibition
What is the maximum hours work that can be attached to a community order?
300h
Maximum length of supervision requirement for generic community order?
3 years
Maximum length of exclusion requirement for generic community order?
2 years
Max age and time for attendance centre requirement for generic community order
between 12 and 36 hours
if under 25
What happens if you breach a generic community order without reasonable excuse?
- Warning from Probation officer
- another breach in 12mo=court
- court must:
-impose more onerous requirements
-revoke order and resentence with or without considering custody threshold (even if offence doesnt carry custodial)
What happens if you commit a further offence during a generic community order
MC can allow original order to continue
OR if in interests of justice having regard to the circumstances that have arisen since the original order was made, they may:
1. Revoke (if imposing custodial sentence for new offence)
2. Revoke and resentence for original offence as if they’ve just been convicted of it (must have regard to the extent to which D has complied with the original order)
If D pleads guilty but disputes factual version of events put forward by CPS and the events effect type of sentence what are the courts options?
- Accept Ds version of events
- Have Newton Hearing
What is a Newton hearing
hearing allowing CPS and D to call evidence so the court can determine the true factual circumstances of the offence for sentencing
What is the ‘basis of plea’ in a Newton hearing
Doc setting of Ds factual version of events to offence D accepts they’re guilty of (likley to remove aggravating factors) if rejected by prosecution, will have Newton hearing
What will the judge do before a Newton hearing if they consider the basis of plea absurd?
Reject basis and sentencing will take place on the prosecution version of events without a Newton hearing taking place.
What usually happens if you commit a further offence during the operational period of a suspended sentence?
the suspended sentence will be activated to run fully and consecutively with the new custodial sentence.
Who can appeal from the MC to CC
D against sentence (on basis its excessive) or conviction (on law or fact)
NOT prosecution
Procedure for appealing from MC to CC
- D file notice of appeal with MC and CPS within 15 business days from sentence
- MC clerk will send the notice to the relevant CC who’ll arrange a date for the hearing
If D is appealing from MC to CC, what happens if they are funded via representation order
need separate one to cover hearing of appeal but original covers preparing notice of appeal
Is there a presumption for bail when appealing from MC to CC
No but can be granted.
If MC doesnt grant bail, D may apply to CC
Powers of CC following appeal from MC
Confirm, reverse or vary the decision
Impose any sentence MC could have imposed
Who can appeal from the MC to HC (KBD)
Either side on point of law by way of case stated or bc MC exceeded juristiction
Common arguments on appeal from MC to HC
magistrates:
(a) misread, misunderstood or misapplied the law;
(b) didnt have the jurisdiction to hear case
(c) made errors in deciding the admissibility or otherwise of evidence;
(d)erred in their decision following a submission of no case to answer.
Procedure for appeal from MC to HC
- apply to MC within 21d decision in writing to MC clerk
- Magistrates ‘state a case’ for the opinion of the High Court (clerk preps draft statement of case, sent to parties and sends final version to party appealing who lodges with HC)
Who is the hearing before on appeal from MC to HC
Heard by Divisional Court of Kings Bench Division normally by 3 judges
What is a hearing confined to on appeal from MC to HC
legal argument on agreed facts in statement of case
What does the HC have the power to do on appeal from the MC
□ Reverse/Vary/Affirm MC decision
□ Remit case back to same MC with direction to aquit or convict
□ Remit to different bench of MC if case needs to be reheard
Who can appeal from the HC to SC?
Either side by way of case stated on a point of law HC has certified is of general public importance with leave from HC or SC
Who may appeal from the CC to CoA?
D against sentence or ‘unsafe’ conviction if CoA grants leave or trial judge grants a certificate that the case is fit for appeal
Prosecution if A-G considers sentence unduly lenient or against termination or evidential rulings
When is the ONLY time an appeal against conviction can be made from the CC to CoA
if conviction is unsafe, appeal MUST be dismissed otherwise
Implications of CoA only accepting appeals against ‘unsafe’ convictions
-Conviction may be upheld even if error/mistake if CoA considers had mistake not been made, only correct/reasonable verdict would be guilty
-May allow appeal and quash conviction even if D did offence if there was an abuse of process by police/prosecuting authorities (eg. bugging convo with sol)
What are examples of common factors used to argue conviction is unsafe
- Judge failed to correctly direct jury as to burden or standard of proof/law/that jury nmust determine facts/unamnumous verdict
- Trial judgewrongfully admitted or excluded evidence
- Trial judge failed to administer the correct warnings
- Inappropriate interventions by judge
- Failure by judge when summing up to deal with essential points/identify pros inconsistencies/summarise ev/say special measures shouldnt prejudice
- Fresh evidence that would make verdict difference
Procedure for appeal against conviction from CC to CoA
- Within 28d conviction D serve appeal notice +grounds of appeal (separate doc) on Registrar of Criminal Appeals at CoA
- Registrar obtains transcript of the evidence given at trial and judge’s summing up to the jury.
- Registrar puts case papers before single judge who decides whether to grant permission to appeal
- Hearing before CoA 3 judge panel (inc oral ev from parties)
What order may a CoA judge make if an appeal is completely without merit?
Direction as to loss of time=time spent in custody awaiting the outcome of the appeal will not count towards the total sentence time (as would normally be the case).
When will fresh evidence be heard at an appeal against conviction in the CoA from the CC?
- it appears to be credible
- it would have been admissible at the defendant’s trial
- theres a reasonable explanation for the failure to adduce it at trial
CoA powers following appeal against conviction from CC?
- quash and acquit (eg. New ev)
- quash and order retrial (eg trial judge made mistake)
- allow part of the appeal and dismiss other parts of the appeal
- find D guilty of an alternative offence (+re sentence)
- dismiss appeal.
When may the CoA order a retrial on appeal against sentence from CC?
When it considers ‘the interests of justice so require’
Procedure for appeal against sentence from CC to CoA
- Within 28d conviction D serve appeal notice +draft grounds of appeal (separate doc) on Registrar of Criminal Appeals at CoA
- Registrar puts case papers before single judge who decides whether to grant permission to appeal 3. Appeal considered by 2-3 judge panel, confined to legal submission on appropriate sentence
When will an appeal against sentence from CC to CoA be successful?
-most common:Sentence manifestly excessive (beyond upper limit)
-Sentence wrong in law or principle
-Judge adopted wrong approach when sentencing
-Co defendants-unjustified disparity
Powers of CoA after appeal against sentence from CC?
Conform
Quash
Replace with alternative sentence or order it thinks appropriate
CANT increase
Make loss of time direction if thinks appeal is without merit
Can the prosecution appeal from the CC to CoA in respect of D who has been acquitted by a jury following a Crown Court trial?
No
When can the prosecution appeal from the CC to CoA?
In respect of rulings before/during trial which: (a) effectively terminate the trial (‘termination rulings’)
(b) significantly weaken the prosecution case (‘evidential rulings’).
OR
If the Attorney General considers the sentence is unduly lenient
What can the Attorney General do if they consider a CC sentence is unduly lenient?
-refers case to CoA who can increase (must be a sentence that could have been passed by CC)
-ONLY if offence indictable only/a specified either way offence and CoAs given permission
What is the rule against double jeopardy and how has it been changed?
Prevented D being tried twice for same offence
Now CJA 2003 lists offences for which retrial is possible following acquittal
For what offences is retrial possible following acquittal?
Murder/attempted murder
Manslaughter
Kidnapping
Some sexual offences inc rape/attempted rape/assualt by penetration
Some class A drug offences
Arson endangering life or property
What tests are considered when deciding if an offence can be tried for a second time?
- Evidential test: Must be ‘new and compelling’ evidence of Ds guilt (Compelling=reliable, substantial and highly probative in case against D)
- Interests of justice test: consider: (a) whether existing circumstances make a fair trial unlikely;
(b) the length of time since the offence was allegedly committed;
(c) whether it is likely that the new evidence would have been adduced in the earlier proceedings, but for the failure of the police or the prosecution to act with due diligence and expedition;
(d) whether, since the earlier proceedings, the police or prosecutor have failed to act with due diligence or expedition.
How may JR be used
Not form of appeal
May be made by CPS or D if:
(a) MC has made an order that they had no power to make (ultra vires)
(b) MC breached the rules of natural justice (right to fair hearing/bias)
Applicant will seek an order from the Divisional Court:
a. quashing MC decision
b. compelling MC to act (or not act) in a certain way.
Time limit for appealing from MC to CC/HC, and CC to CoA
MC to CC: 15bd sentence
MC to HC: 21d decision
CC to CoA: 28d conviction/sentence (depending on what appealing against)
