Criminal Practice - Sentencing and Appeals

Question 1

Sentencing - Seriousness

What 2 things does the court consider in determining seriousness?

Answer 1

a. Offender Culpability
b. Harm caused/intended to be caused/foreseeably have caused

Question 2

Sentencing - Seriousness - Aggravating Factors

What are the four situations in which the court must treat an offence more seriously?

Answer 2

(a) Previous convictions
(b) Offence was commited on bail
(c) Racial/religious aggravation
(D) Hostility based on sexual orientation or disability

Question 3

Sentencing - Seriousness

What are some other potential aggravating factors the court may consider?

Answer 3

• planning/premeditation
• gang membership
• targeting vulnerable groups
• drink/drugs
• use of weapon
• violence/damage beyond that required for offence
• position of trust
• value of property for property offence
• failure to respond to previous sentences

Question 4

Sentencing - Seriousness

What are 7 mitigating factors?

Answer 4

• acted on impulse
• greater degree of provocation than expected
• particularly young or old
• minor role in offence
• genuine fear
• attempted to make reparation with victim.

Question 5

Sentencing - Seriousness

When is there a reduction in sentence of one-third for a guilty plea?

Answer 5

• At first hearing in Magistrates’
• Indication at Magistrates’ for indictment-only, followed by guilty plea at Crown Court.

Question 6

Sentencing - Seriousness

1. When is there a 1/4 reduction on sentence for a guilty plea?
2. When is it 1/10?
3. When is it possibly zero reduction?

Answer 6

1. After the first stage of proceedings
2. On first day of trial
3. During trial

Question 7

Sentencing - Totality

What is the totality principle?

Answer 7

The court takes into account associated offences.

Question 8

Sentencing Guidelines

What are the 8 steps given in the Sentencing Guidelines?

Answer 8

1. Determining offence category (level of harm and culpability)
2. Starting point and category range (aggravating and mitigating factors)
3. Factors indicating a reduction of sentence (rarely relevant)
4. Reduction for guilty plea
5. Extended sentence
6. Totality
7. Compensation
8. Reasons

Question 9

Concurrent vs Consecutive sentence

What is the general rule about the court deciding a concurrent vs consecutive sentence?

Answer 9

Consecutive sentences are not generally imposed where matters of fact arise out of the same incident.

Also, even if not out of same incident, a concurrent sentence may be used under totality principle.

Question 10

Plea in mitigation

What is the objective of a plea in mitigation?

What is its general structure?

Answer 10

To persuade the sentencing court to impose the most lenient sentence on the defendant.

Structure:

1. Identify offence category => starting point and category range.
2. Aggravating and mitigating factors of offence.
3. Personal mitigation of offender.
4. Suggested sentence

Question 11

Sentencing

What are five types of sentences?

Answer 11

• custody
• suspended
• community
• fine
• discharge

Question 12

Custodial Sentence

What is the threshold test used to determine whether or not to pass a custodial sentence?

Answer 12

The court must not pass a custodial sentence unless the offence (or a combination of the offence and associated offences) was so serious that neither a fine nor community sentence is justified.

Question 13

Custodial sentence

If the custodial threshold is passed, is it automatically applied?

When is the custodial threshold disapplied?

Answer 13

No. A guilty plea or strong mitigation may make a non-custodial more appropriate.

When an offender fails to express willingness to partake in community sentence.

Question 14

Custodial sentence

A custodial sentence must be for the ____ term commensurate with the seriousness of offence.

What is the maximum custodial sentence a magistrate can impose for a summary only offence? What about an either-way?

Answer 14

Shortest.
6 months; 6 months.

Question 15

Suspended sentence

When can a suspended sentence be imposed?

How long can the suspension (the operational period) be?

During the suspended sentence, what two things trigger the sentence of imprisonment?

Answer 15

For a custodial sentence of minimum 14 days and a maximum of 2 years (or 1 year for magistrates) is imposed.

Operational period: 0.5 - 2 years.

• defendant fails to comply with requirements imposed.
• defendant commits an offence during operational period and the court sentencing the new offence orders the original sentence of imprisonment to take effect.

Question 16

Custodial sentence

A court dealing with a defendant who breached a suspended sentence must: (4 options)

Which of these are required unless unjust to do so?

Answer 16

(a) order original custodial sentence to take effect immediately;
(b) order original custodial sentence to take effect, but for a shorter period and/or substitute a lesser custodial period.
(c) amend original order and impose more onerous community requirements;
(d) amend original order by extending operational or supervision period.

(a) and (b)

Question 17

Sentencing - Community Order

The court must not make a generic community order unless…

Answer 17

the offence/combination of offences is serious enough to warrant it.

Question 18

Sentencing - Generic Community Order - Breach of community sentence

What is the first thing that will happen when a defendant, without reasonable excuse, breaches a community order?

If within the following 12 months, the defendant again fails without reasonable excuse to comply with the order, what will the officer do?

If the court is satisifed that the defendant has, without reasonable excuse, failed to comply with the order, the court must do one of three things:

Answer 18

The defendant receives a warning from the Probation Service.

Report the matter to court.

1. Impose more onerous requirements.
2. Revoke the order and re-sentence without regard to custody threshold.
3. Where the defendant wilfully and persistently failed to comply, revoke the order and impose a custodial sentence, even if the original offence wasn’t punishable by custodial sentence.

Question 19

Sentencing - Generic Community Order - Further offences

Where the defendant is convicted of a further offence during a generic community order, the magistrates can allow the generic community order to continue, or if it is ____ to do so, they may do one of two things:

Answer 19

…in the interests of justice.
(a) Revoke the order
(b) Revoke the order and resentence for original offence as if they have just been convicted of it.

(a) will be used if the new offence is subject to a custodial sentence, which the magistrates will then impose.

Question 20

Sentencing - Newton Hearing

If the defendant pleads guilty, disputes the specific factual version of events put forward by the CPS and the dispute concerns the sentence, what must the Court do?

Answer 20

Either accept defendant’s version or call a Newton Hearing.

Question 21

Appeals against the Magistrates

An appeal against conviction from the magistrates’ court to the Crown Court is a ____ of the case.

Does the prosecution have a right of appeal against the magistrates’ court?

Answer 21

Full rehearing.

Not against acquittal or sentence. They can only appeal to the High Court on a point of law by way of case stated.

Appeal against sentence should also be a full rehearing of the issues.

Question 22

Appeals against the Magistrates: procedure

What is the procedural requirement for a defendant to appeal against the magistrates’ court to the Crown Court?

Answer 22

The defendant must file a notice of appeal with the Magistrates’ Court and the CPS within 15 business days of the magistrates passing sentence.

The clerk to the magistrates’ court will then send the notice to the Crown Court, which will in turn arrange the hearing to take place.

The Crown Court judge has the discretionary power to extend the time limit where the defendant files the notice outside the 15 business days.

Question 23

Appeals against the Magistrates: procedure

(a) If the defendant’s case before the magistrates was funded by a representation order, will a separate representation order be required to cover the appeal?

(b) What should be borne in mind when the defendant is appealing against a custodial sentence and the magistrates are deciding whether to grant bail?

(c) If the magistrates do not grant bail, what can the defendant do?

Answer 23

(a) Yes, but the notice of appeal is covered by the original representation order.

(b) There is no presumption in favour of bail (s.4 of the Bail Act 1976).

(c) Apply to the Crown Court for bail, pending the hearing.

Question 24

Appeals against the Magistrates

An appeal against conviction by the magistrates may be made on the basis that…

An appeal against a sentence from the magistrates may be made on the basis that…

Answer 24

…the magistrates made errors of fact and/or law

…the sentence imposed is excessive.

Question 25

Appeals against the Magistrates

A. The Crown Court may ___, ___, or ____ the decision of the magistrates. The Crown Court has the power to impose on the defendant ____ provided that

B. What can both the CPS and the defendant do if they wish to appeal a decision by the Crown Court following an appeal against the magistrates?

Answer 25

A. confirm, reverse or vary; any sentence, provided that the magistrates had the power to impose such sentence.

B. Appeal to the High Court by way of case stated.

Question 26

Appeals to the High Court by way of case stated

An appeal to the High Court by way of case stated is made on the basis that…

Answer 26

…the magistrates or Crown Court erred on a point of law or exceeded its jurisdiction.

From my understanding of the book, the focus will be on appeals against the magistrates’ decision.

Question 27

Appeals to the High Court by way of case stated

Provide four common arguments for raising an appeal by way of case stated.

Answer 27

(a) the magistrates misunderstood or misapplied the law;
(b) the magistrates decided to hear the case when they did not have the jurisdiction to hear it;
(c) the magistrates made an error in deciding the admissibility of evidence;
(d) the magistrates erred in their decision following a submission of no case to answer.

Question 28

Appeals to the High Court by way of case stated

a. The procedure requires the applicant to…

b. The application must identify:

c. Once the statement of case has been prepared by the clerk to the magistrates, and agreed by the parties, what must the applicant do?

Answer 28

a. apply in writing to the magistrates’ court within 21 days of the decision being made by the magistrates.

b. the question of law for which the aggrieved party seeks the view of the High Court.

c. Lodge the statement of case with the High Court and give notice to the other party that this has been done.

Question 29

Appeals to the High Court by way of case stated

The appeal is heard by the Divisional Court of the King’s Bench. What evidence will be given?

Answer 29

No evidence.The hearing is confined to legal arguments based on the agreed facts set out in the statement of case.

Question 30

Appeals to the High Court by way of case stated

a. What powers does the Divisional Court have beyond reversing, varying and affirming the decision of the magistrates?

b. What can either party do if they wish to challenge a decision or order of the High Court following an appeal by way of case stated? Outline the requirements.

Answer 30

a. It may remit the case back to:

• the same magistrates with a direction to acquit or convict, or
• a different bench of magistrates for the case to be reheard.

b. Appeal to the Supreme Court on a point of law. This requires permission of the High Court or the Supreme Court, and the High Court must certify it to be of general public importance.

Advising the client:

It is best for the defence to appeal to the Crown Court before appealing by way of case stated (quicker and simpler procedure).

Question 31

Judicial Review

Can both parties apply for judicial review?

The basis for judicial review is that (2 options):

Answer 31

Yes.

1. the magistrates made an order that they had no power to make (acted ‘ultra vires’)
2. the magistrates breached the rules of natural justice, either by contravening the right to a fair hearing or appearing to be biased.

Question 32

Appeals against the Crown Court

If a defendant is convicted in the Crown Court, which court do they appeal to (whether they are appealing their conviction or sentence)?

Answer 32

The Court of Appeal (Criminal Division)

Question 33

Appeals against the Crown Court: defendant appeals conviction

When will an appeal against conviction be allowed?

What are the most common factors raised by the defendant in appealing against conviction? (6 factors)

Answer 33

When the Court of Appeal considers a conviction to be unsafe. All other cases must be dismissed.

a. a failure by the trial judge to direct the jury correctly
b. the trial judge wrongfully admitted or excluded evidence;
c. the trial judge failed to administer the correct warnings to the jury.
d. the trial judge intervened inappropriately
e. the trial judge failed to sum up the case propery;
f. fresh evidence has come to light which casts doubt upon the defendant’s guilt.

Each of these are expanded upon in the book.

Question 34

Appeals against the Crown Court: defendant appeals conviction

What is the procedure for making an appeal against conviction from the Crown Court?

Answer 34

1. Within 28 days of conviction, D serves the appeal notice with the draft grounds of appeal on the Court of Appeal
2. A judge will determine whether to grant permission. If without merit, the judge may make a direction as to loss of time.

Time spent by the defendant in custody awaiting the outcome of the appeal will
not count towards the total time the defendant must serve for their sentence.

Technically can ask the trial judge to certify that the case is fit for appeal, but this is rare.

Question 35

Appeals against the Crown Court: defendant appeals sentence

When would an appeal against sentence passed by the Crown Court be successful?

Answer 35

• wrong in law
• wrong in principle (e.g. not serious enough to merit custodial)
• wrong approach
• manifestly excessive
• in case of co-defendants, unjustified disparity

Manifestly excessive - most common ground. Court of Appeal will interfere only if the sentencing judge has gone beyond the upper limit of this range.

Question 36

Youth Court

When is the attendance of the youth’s parents/guardian required?
When is this at the discretion of the court?

Answer 36

Juvenile under 16, unless unreasonable to require.
Juvenile aged 16 or 17.

Question 37

Youth Court

Apart from the district judge/youth justices and the juvenile/their parents, which five categories of people are allowed to attend a youth court hearing?

Answer 37

• CPS representative
• Juvenile’s solicitor
• YOT representative
• Court staff
• Members of the press

Question 38

Youth Court

What age are “children” and what age are juveniles in the court?

What is a persistent youth offender (PYO)? PYOs will have their cases…

Answer 38

10-13; 14-17.

Juvenile sentenced on 3 separate occasions for recordable offences (an offence for which the juvenile may receive a custodial sentence). …expedited.

Question 39

Youth Court: Mode of trial

Most trials of juveniles should take place in the youth court.

(1) What two types of cases must be sent to the Crown Court?

(2) What three types of cases may be sent to Crown?

(3) What type of case may be sent to the Magistrates?

Answer 39

(1) Must be sent to Crown
- Homicide
- Firearms offence by juvenile 16 or over.

(2) May be sent to Crown
- Grave crimes
- Specified offences committed by a dangerous offender.
- Jointly charged with adult whose case is dealt with in Crown.

(3) Jointly charged with adult whose case is dealt with in the magistrates’ court.

Question 40

Youth Court: Mode of trial - may be sent to Crown

(1) What is a grave crime? Give 4 examples.
(2) What is a specified offence?
(3) When is a defendant considered a dangerous offender?
(4) For all of these cases, the juvenile will be asked to indicate their plea. If they indicate a guilty plea, the youth court will either sentence or send to Crown, where they believe their sentencing powers are inadequate, in other words, the juvenile will receive:
(5) If juvenile indicates not guilty plea, and the youth court accepts jurisdiction, does the juvenile have a right to elect the Crown Court?

Answer 40

(1)An offence for which an offender aged 21 or over may receive custodial sentence of 14 years or more. Robbery, GBH with intent, rape, assault by penetration.
(2) Offence of violence or sexual offence.
(3) Where automatic life imprisonment, discretionary life imprisonment or extended sentence is appropriate.
(4) Detention and training order in excess of 24 months.
(5) No.

Question 41

Youth Court: Bail

In relation to bail, the youth court has the power to remand the juvenile: (3 types)

Answer 41

• on bail
• into local authority accommodation/youth detention
• into custody (only if juvenile is 17)

Question 42

Youth Court: Bail

Instead of local authority accommodation, where might the juvenile be remanded to?

Which age group must be remanded on bail or local authority accom?

What are the four conditions for remand to youth detention accommodation to take place?

1. Age range.
2. Usually required
3. Offence is one of two types. Alternatively,
4. Court must believe this is necessary either to (two reasons)

Answer 42

youth detention accommodation.
10-11 year olds.
1. Juvenile 12 - 17.
2. Juvenile has legal representation
3. Offence is:
- violent or sexual offence; or
- one for which an adult could be punished with 14 years imprisonment; or
- juvenile has a history of absconding, or recent history of committing imprisonable offences whle on bail/remanded.

4. Protect public from death or serious injury
5. Prevent commission of further imprisonable offences.

Question 43

Youth Court: Types of sentences - Referral Orders

(1) A referral order means the juvenile will be referred to a:
(2) At the meeting, the panel will speak to the juvenile and their family with a view to doing three things:

(3) The panel will agree with the juvenile on a “youth offender contract”. This is a programme of behaviour designed to prevent reoffender and will last… Does the youth court have involvement in determining the terms of the contract?

(4) A referral order must be made for a juvenile who pleads____ and who has never…. unless the court is proposing either:

(5) If the juvenile pleads ____ then a referral order cannot be made.
If the juvenile has entered a mixed plea, does the court have a power or obligation to make a referral order?

Answer 43

(1) Youth offender panel.
(2) The panel will speak to the juvenile with a view to:
- Stop further offending;
- Help juvenile right the wrong to the victim; and
- help juvenile with any problems they have.

(3) …between 3-12 months. No.

(4) Guilty, previously been convicted; to impose a custodial sentence, or to make an absolute discharge.
(5) …not guilty. Power.

Question 44

Youth Court: Youth Rehabilitation Order

This is equivalent to the ____ for adult offenders.

Answer 44

Generic Community Order.

Question 45

Youth Court: Detention and Training Orders

This is the only type of ____ that the youth court can impose.
It may not be imposed unless the offence… Additionally, the Court must consider whether a YRO with intensive supervision and surveillance is appropriate and state the reasons why such a YRO is inappropriate.

Detention and Training Orders may not be imposed on…
If between the age of 12-14 inclusive, an order may only be made if the court considers that the juvenile is…
For those aged 15 or over, there is no restriction on making such an order.

What is the maximum period that the order can impose?

The juvenile will be held in detention in a ____ for one half of the period of the order. For the second half, they are released on supervision of the…

Answer 45

Custodial sentence.
is so serious that neither a fine nor community sentence is justified and

…10-11 year olds.
…a persistent young offender.

24 months.

Young Offender’s Institution; YOT.

Question 46

Appeals

As the youth court is a type of magistrates’ court, the juvenile has…

Answer 46

…the same rights of appeal as a defendant convicted/sentenced in the adult magistrates’ court.