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A2 Law > Sentencing > Flashcards

Sentencing Flashcards

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1
Q

What Act sets out the purposes for sentencing for those over 18?

A

Criminal Justice Act 2003

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2
Q

What are the 6 aims of sentencing?

A
  1. Retribution
  2. Denunciation
  3. Incapacitation
  4. Deterrence
  5. Rehabilitation
  6. Reparation
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3
Q

What is retribution?

A

The idea that we punish because the offender deserves punishment.
The punishment must fit the crime - the sentence must be proportionate to the crime committed
The Sentencing Council = responsible for creating the guidelines for this

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4
Q

What did Von Hirsch argue about retribution?

A

We punish IOT redress the balance
Punishment takes away the advantage the offender has

‘The violator ceases to be at an advantage over his non violating fellow’

= often know as the ‘just deserts theory’

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5
Q

In what form does retribution exist in the UK?

A

Tariff sentencing - where recommended sentence = provided

The Sentencing Council = responsible for creating the guidelines

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6
Q

What are 3 criticisms of retribution?

A
  1. Short-sighted - only concerned with punishment, doesn’t attempt to rehabilitate/ reduce crime
  2. Often describes as ‘institutional revenge’
  3. Can be extremely unfair - used to justify harsh sentences, doesn’t allow ‘mitigating circumstances’

e.g. homeless person commits theft = treated same as wealthy person

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7
Q

What is denunciation?

A

Way of S expressing disapproval of criminal activity
Reinforces moral boundaries + teaches S right from wrong
Indicates to S + offender that justice has be done (sentence)
Goes hand in hand with retribution

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8
Q

What are 2 criticism of denunciation?

A
  1. = limited, simply denounces criminal behaviour
    Doesn’t seek to reform/ rehabilitate offenders
  2. Can be used to justify excessive penalties
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9
Q

What is incapacitation?

A

Prevents the offender committing another crime + protects S from offending behaviour
Punishment = necessary if only to prevent further crimes

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10
Q

Give 2 ‘mild’ examples of incapacitation

A
  1. Banning drink drivers from driving

2. Curfew requirement as part of a Community Order (incapacitates through tagging + restricting movements)

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11
Q

Give 2 example of extreme incapacitation in America

A
  1. Ultimate sentence = death sentence (some states)

2. Sex offenders can also be incapacitated by medical treatment

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12
Q

What are the 3 criticisms of incapacitation?

A
  1. Leads to huge prison populations (last 5 years has risen by nearly 20,000 - £££)
    UK has 1 of the highest prison populations in Europe
  2. Doesn’t try to reform offending behaviour
  3. = very limited, often used with RECIDIVISTS (people who continue to offend) + those who present threat to S
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13
Q

Which country had the biggest prison population in Europe?

A

UK

Even though crime rates = much higher in other countries

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14
Q

What are the 2 parts to the deterrence theory?

A
  1. Individual deterrence

2. General deterrence

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15
Q

What is an individual deterrence?

A

Concerned with deterring the individual from committing further offences
Excessive sentences help to achieve this

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16
Q

What are the 3 criticisms for individual deterrences?

A
  1. Can lead to unfair + excessive sentences (R v Whitton)
  2. Prison = not effective (55% of adult prisoners re-offend within 2 years of release. 70% for young offenders)
  3. Assumes offender will stop to think of consequences, many crimes = actually spur of the moment (e.g. through alcohol/ drugs)
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17
Q

Describe the case of R v Whitton (1985)

How does it link to individual + general deterrences?

A

Football hooligan was given a life sentence
Deterred him from committing the crime again
Deterred other football fans from doing the same - he was made an example of

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18
Q

What % of adults re-offend within 2 years of release?

What % of young offenders do the same?

A

Adults = 55%

young offenders = 70%

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19
Q

What is a general deterrence?

A

Excessive penalties will deter the rest of S

e.g. in the case of R v Whitton (1985)

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20
Q

What are the 3 cases that can be used as examples of general deterrents?

A
  1. R v Whitton (1985) - football hooligan
  2. R v Ezair (2001) - robbed Manchester uni student
  3. R v Rollings (2012) - possession of a gun
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21
Q

Describe the case of R v Ezais (2001)

A

D had robbed a Manchester University student
There had been 700 robberies in the vicinity of the uni
Judge described this as ‘a blot on the city of Manchester’
D was sentenced to 4 years in prison as a deterrent to others

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22
Q

What happened to the ruling in R v Rollings (2012)?

A

D’s 5 year sentence for possession of a gun = doubled up by the CA
It was felt to be unduly lenient + there was a need to deter others

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23
Q

What are 4 criticisms of a general deterrence?

A
  1. Excessive penalties - lengthy sentences purely to prove a point to rest of S
  2. Hard to measure effectiveness (USA has death penalty to deter others but has highness homicide rate in world)
  3. Relies on publicity of severe punishments - fear of being caught = more of a deterrent
  4. = in direct conflict with retribution, arguably least effective + fair principle of sentencing
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24
Q

What does general deterrence have a direct conflict with?

A

Principle of retribution
Involves sentencing offenders to longer than is deserved for the specific offence
= probably the least effective + fair principle of sentencing

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25
Q

What is rehabilitation?

A

Aims to rehabilitate the offender so they can return to normal S + not commit further offences
= reflected in many of the community penalties
e.g. Supervision orders, Drug treatment etc.

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26
Q

What are 2 criticism of rehabilitation?

A
  1. Leads to individual sentences, leads to disproportionate sentences + inconsistency
  2. Tends to discriminate against the underprivileged - poorer background = less likely to be seen as candidates for reform
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27
Q

What does the Powers of Criminal Courts (Sentencing) Act 2000 state about rehabilitation?

A

When considering the seriousness of the offence, Cts may take into account any previous failures to respond to previous sentences

(Persistent offenders = usually less likely to respond to a reformative sentence)

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28
Q

What is reparation?

A

Aimed at compensating the V of the crime

Offender may be ordered to pay a sum of £/ return stolen property/ complete unpaid community work

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29
Q

What does s130 Powers of Criminal Courts (sentencing) Act 2000 require the Cts to do?

(reparation)

A

Requires Cts to give reasons if they don’t make a compensation order

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30
Q

What Act requires Cts to give reasons if they don’t make a compensation order?

A

s130 Powers of Criminal Court (Sentencing) Act 2000

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31
Q

What does the Criminal Justice Act 2003 say about a prison sentence?

A

Should only be passed when the crime is so serious that neither a fine nor community sentence is justified
You have to be 21+

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32
Q

What are the 9 types of custodial sentence available to adult offenders?

A
  1. Mandatory life sentences
  2. Discretionary life sentences
  3. Fixed term sentences
  4. Indeterminate sentencing
  5. Home detention curfew
  6. Whole life orders
  7. Extended sentences
  8. Minimum sentences
  9. Suspended sentences
33
Q

What is a mandatory life sentence?

A

Automatically given to someone convicted of murder
Min term before being eligible for release ranges from 15 years to life
CJA 2003 sets out min tariff
If released by Parole Board, will be on license for the rest of their life

Also available for other offences e.g. rape, robbery
(DISCRETIONARY LIFE SENTENCES)

34
Q

What is a fixed term sentence?

A

Ct fixes the amount of time an offender has to stay in prison
Most usual type of offence
Sentence = 4+ years, MUST serve 2/3 of sentence
Sentence less than 4 years, MUST serve 1/2 sentence

35
Q

What is an indeterminate sentence?

A

Under CJA 2003, for dangerous offenders where there = a significant risk to the public
Ct sets min amount of time to be served before eligible for release by Parole Board

36
Q

What is a home detention curfew?

A

Early release can have a curfew order attached
Usually enforced by electronic tagging
Helps reduce prison population + offenders to structure their lives
= no automatic right to be released on curfew, each prisoner = individually assessed

37
Q

Are offenders automatically given a home detention curfew?

A

NO!

= no automatic right to be released on curfew, each prisoner = individually assessed

38
Q

What are whole life orders?

A

Extremely rare + = given to most serious + persistent offenders
Only released on compassionate ground with permission form the Secretary of State
E.g. Ian Brady, Rosemary West

39
Q

What are extended sentences?

A

Used for sexual + violent offences where = significant risk to the public
Offender = given custodial penalty combined with extended period which must be served on license
Can’t exceed 10 years for sexual offence
Can’t exceed 5 years for violent offence

40
Q

What is a minimum sentences?

A

Min time that has to be served attached to the offence
18+ only
e.g. = min 7 year sentence for 3 convictions of dealing class A + min 3 years for 3 convictions of burglary

41
Q

What is a suspended sentence?

A

Can be imposed for up to 2 years
BUT only in exceptional circumstances where an immediate prison sentence would’ve been appropriate apart from said circumstances
If offender commits crime within set time, must serve original sentence + new sentence

42
Q

Way should you NEVER call a community order?

A

COMMUNITY SERVICE

It doesn’t exist anymore!

43
Q

What Act creates community orders with different requirements?

A

CJA 2003

44
Q

Give the 5 types of community order requirements under the CJA 2003

A
  1. Unpaid work requirement (40-300h, project organised by probation)
  2. Prohibited Activity requirement (e.g carrying spray can if charged with criminal damage)
  3. Curfew requirement (fixed address fro 2-16h in 24h period, electronic tagging, up to 1 year)
  4. Exclusion requirement (16+ = up to 2 years, -16 = 3 moths)
  5. Supervison requirement (by probation officer, up to 3 years)
45
Q

Give the 3 types of rehabilitation requirements

A
  1. Mental health requirement (offender seeks treatment, classes/ therapy)
  2. Drug rehabilitation requirement (offender attends drug rehabilitation centre, regular testing to ensure compliance)
  3. Alcohol treatment requirement (offender follow treatment programme)
46
Q

Other than custodial + community penalties, what 3 other types of sentences can adults receive?

A
  1. Fines (max for Mag Ct = £5,000. Crown Ct rarely use fines but have unlimited fining powers)
  2. Conditional/ discharges (similar to suspended sentences but for up to 3 years)
  3. Absolute discharge (no penalty imposed, usually when offender = morally blameless)
47
Q

What do compensation + restitution orders require the D to do?

A

Enforced the by Cts, attaches to sentences
Requires D to pay sum to V/ restore property
aims to compensate the V

48
Q

What do deprivation + forfeiture orders do?

A

Oders offender to be deprived of property used to commit an offence
Proceeds of Crime Act 1995 also gives Cts power to take the proceeds of their crimes for up to 6 years

49
Q

What are the 2 orders that allow Cts to take property away from the D that was used in an offence?

A

Deprivation + forfeiture orders

50
Q

What Act gives Cts the power to take proceeds of crimes away from criminals for up to 6 years?

A

Proceeds of Crimes Act 1995

51
Q

Who counts as young offenders?

A

Those 10-17

Tried in Youth Ct except in serious cases when heard in the Crown Ct

52
Q

What is the main aim of youth sentencing?

A

s142 CJA 2003

To prevent re-offending + rehabilitate offenders

53
Q

What are out of court disposals?

A

Available in youth justice system for 1st time offenders/ those who pleaded G
= NOT sentences but used by police to deal with youth offenders without bringing case to Ct
2 types: Reprimand + Final Warning

54
Q

What are the 2 types of out of Ct disposals available in the youth justice system?

A
  1. Reprimand - Formal warning given by Pol officer to those caught/ admitted to committing 1st minor offence
    Youth Offending Team programme = optional
  2. Final Warning - Given for 2nd minor offence to which youth pleads G
    Youth Offending Team programme = compulsory
55
Q

What are Youth Offending Teams?

A

Each Local Authority has to establish at least 1 team in their area
= panel consisting of police officers, probation service + social services
Assist in rehabilitation of young offenders
Any offender who has be warned MUST be referred
Youth Cts can also refer

56
Q

What are the 3 types of custodial penalties for young offenders?
Briefly explain

A
  1. Young offenders’ institution (15-20, min sentence = 21 days, max = max sentence for that offence. If turns 21, transferred to adult prison)
  2. Detention at Her Majesty’s pleasure (10-17, for murder, indeterminate sentence, judge will recommend min sentence)
  3. Detention + Training orders (12-21, for specific period, 1st half served in custody, 2nd = served in community under supervision of YOT, only for persistent offenders if under 15)
57
Q

What are community penalties for young offenders now governed by?

A

Young Rehabilitation Order
Introduced under The Criminal Justice and Immigration Act 2008
Ct can mix + match requirements to suit offender
Offenders = supervised by YOT

58
Q

What is a supervision requirement for young offenders?

A

Those under 18
Placed under supervision of social services/ probation officer/ YOT
Can be part of Action plan order

59
Q

What are the requirements that can be attached to a Youth Rehabilitation Order?

A

All of those for adults (if aged 16/17 at time of conviction) plus:

  1. Activity requirement (attendance at educational + training classes, CV writing + interview techniques)
  2. Attendance centre requirement (10-25, attendance special centre 2/3 hours week, max = 36 min = 12)
  3. Education requirement
  4. Residence requirement (-17 can be placed in care of local authority)
  5. Drug treatment requirement
  6. Fines (14-17 max = £1,000, 10-13 max = £250)
  7. Discharges (absolute/ conditional)
60
Q

Can a young offender be fines?

A

YES
Aged 10-13 max fine = £250
Aged 14-17 max fine = £1,000

61
Q

What Act can bind parental responsibility for young offenders?

A

CJA 2003
Parents have to agree to keep child under control (bind can be up to 1 year)
If child commits offence during bind period, parents can be fined up to £1,000
Cts can make parenting orders - offer training + support to help parents change Childs offending behaviour

62
Q

Who decides on the sentence given?

A

The Cts
Judge = responsible for sentence in crown Ct
Magistrates = responsible in Magistrates’ Ct

P sets the max sentences for offences
Sentencing Council produces guidelines on sentencing

63
Q

What are the limits to the Magistrates + Crown Cts sentencing powers?

A

Magistrates: 6 months in prison for 1 offence, 12 months for 2+ offences, max £5,000 fine

Crown: unlimited fine, custodial sentence can be given u to permitted max for offence

64
Q

Who provides guidelines on sentencing?

A

The Sentencing Council

Also set out aggravating/ mitigating factors

65
Q

What 2 things do the cts consider when sentencing?

A

Offence + background of the offender
Need to know the details of the case; can affect the sentence
Seriousness of offence = considered + whether it was intended/ reckless/ could’ve been foreseen or not

66
Q

Give 7 aggravating factors

A
  1. Previous convictions of similar nature
  2. If D was on bail at time
  3. D in position of trust?
  4. Act premeditated?
  5. V a vulnerable person?
  6. Hostility towards: race/ religion/ disability/ sexual orientation
  7. Joint crime, what part did the D play? Sentence will reflect part they played
67
Q

Give mitigating factors

A
  1. 1st offence
  2. Showing remorse
  3. Helpful to the police?
  4. If drugs involved, agree to take part in drug rehabilitation programme
  5. If joint venture have they ID other participants?
68
Q

By how much can a guilty plea reduce a sentence by?

3 stages

A

Up to 1/3 if plea G at 1st opportunity
Up to 1/4 after trial date set
up to 1/10 at door of Ct/ trial started
NO REDUCTION AFTER THIS POINT

69
Q

What reports do the Cts consider in sentencing?

A 
Pre-sentencing reports
Medical reports (where appropriate)
Financial situation of the defendant (if Ct = considering fines)
70
Q

What Act was the Sentencing Council set up by and why?

A

Coroners and Justice Act 2009

Aim of encouraging transparent + consistent sentencing

71
Q

What is the age of criminal responsibility in the UK?

Who has this been criticised by?

A

10, younger than most other European countries
Criticised by the United Nations Committee on the Rights of the Child

DOLI INCAPAX AFTER THE JAMES BULGER’S CASE

72
Q

How is the Youth Ct separate from other Cts?

A

Offenders aged 10-17
Y. Cts = staffed by specially trained Mag
Ct = physically separate from adult Mag Ct
Ct isn’t open to public, only those involved in proceedings
Limited access to press + = reporting restrictions
Procedure = less formal - can alter layout of Ct, remove wigs/ robes to make experience less stressful
Yong offenders can have appropriate adult with them

73
Q

In what case was the role of the Youth Ct consolidated in?

What was held?

A

Thompson and Venables v UK (1999)

ECtHR held = breach of Art 6 ECHR to have youths tried in adult Ct because perceived as intimidating + daunting

74
Q

What happened as a result of the ruling in Thompson and Venables v UK (1999)?

A

Under a Practice Direction 2000
Trail judge must take into account: age, maturity, intellectual/ emotional development of y. person on trial
Can take steps to make experience less stressful

75
Q

When can a youth be tried in the Crown Ct?

2

A
  1. If case = very serious (murder)

2. If being tried alongside an adult offender

76
Q

What Act brought about changes to aspects of the sentencing regime?

A

The Legal Aid, Sentencing and Punishment of Offenders Act 2012

77
Q

What did the G do to reduce the amount of people in prison?

Has the been effective?

A

Under CJA 2003, made community penalties harsher to try to avoid giving custodial sentences
BUT = ineffective; prison population has continued to rise

78
Q

How many people did the Howard League for Penal Reform suggests that there was in prisons/ young offender institutions in May 2015?

A

85,684

Increase of 766 more people than year before

79
Q

What 4 reasons did the Fawcett Society have for custodial sentence being unfair on women?

A
  1. Inappropriate - 1/2 W in prison have suffered DV, 1/3 suffered from sexual abuse
  2. Damaging to W - 70% W prisoners have mental health problems, 1/3 attempted suicide
  3. Damaging to families - approx 2/3 in prison have dependent children
  4. Ineffective - most common offence for W = theft + handling stolen goods, 65% reoffend on release

A2 Law (18 decks)

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