Sentencing Practice Flashcards
What four broad categories is adult sentencing divide into?
1) Custodial
2) Community
3) Fines
4) Discharge
What is a custodial sentence?
Most serious type of punishment
according to S.152 Criminal Justice Act 2003 should only be given when the offence committed is “so serious that neither a fine alone nor a community sentence can be justified for the offence”
What type of custodial sentences are there?
determinate- court fixes the maximum amount of time an offender must stay in prison, this is the most common type of custodial sentence
Indeterminate- Where the court fixes the minimum period the offender will spend in prison before they are eligible for release by the Parole Board
State two examples of an indeterminate sentence (custodial sentences)
Mandatory Life Sentence
S.1 Murder (Abolition of Death Penalty) Act 1965 sets down a mandatory life sentence for murder with the tariff to be determined by a judge, as per schedule 21 Criminal Justice Act 2003 the starting point for an adult offender is 15 years
-Whole life tariffs= for exceptional cases for premeditated murders or sexual (Wayne Couzen tries to argue his whole life order however CA upheld by focusing on his abuse of authority, currently there are 70 offenders serving whole life order in prison, including Wayne Couzen and Lucy Letby
-Previously, the only offenders aged 21 plus could be sentenced to a whole life tariff however S.321 (3B) Sentencing Act 2020 has been amended by S.126 Police, Crime, Sentencing and Courts Act 2022
=30 year minimum for murders of police or prison officers etc
=15 years minimum is suggested for murders not within the 2 higher categories
Discretionary Life Sentences
For other serious offences such as S.18, judges can impose a life sentence at their discretion
State some examples of determinate sentences (custodial sentences)
Fixed term Sentences
Judge fixes the maximum amount and for offences of more than 1 year, offenders will usually be released at the half-way point
e.g Up to 5 years for S.47
Suspended Sentences
Under S.286 Sentencing Act 2020 this means that the custodial sentence does not take effect immediately
The suspension period is between 14 days and 2 years (6 months max in mags) available in sentences up to 2 years in length. If the offender stays our of trouble, the prison sentence will not be served, however community sentences are often attached to these orders and if any breach or re-offending then the prison sentence is likely to be activated
When is a suspended sentence deemed appropriate ?
-a realistic prospect of rehabilitation
-Strong mitigation and
- where immediately custody will result in a significant harmful impact upon others
What are community sentences?
Community orders can combine any number of the requirements available. This sentence is available to anyone above the age of 18 who has committed an imprisonable offence. For less serious offences 1 is the norm but for more serious can be multiple
As per S.201 Sentencing Act 2020 what options are available for a community sentence?
-Rehabilitation activity to attend
-Curfew requirement
-unpaid work
-Electronic monitoring etc
=Unpaid work
-over a 12 month period offenders work between 40-300 hours on suitable projects to benefit the community, known as community payback
=Curfew requirement
-the offender is ordered to remain in a specific place for periods of 2-16 hrs in one day, this will often be supported by the wearing of an electric tag
What act requires every community sentence to include a punitive element?
The Crime and Courts Act 2013
What are fines ?
most common type of sentence given in the magistrate court
(unlimited fine since S.85 LASPO 2012)
-the sentence is not very common in crown court due to the seriousness of the offence
The amount to pay is based on the severity of the offence and the offender’s means to pay
e.g £86,000 imposed on Ant McPartlin in April 2018
What are discharges?
If a court finds D guilty of an offence it may discharge them either absolutely or conditionally (except for the ones were the penalty is fixed)
Discharges are imposed when it is “inexpedient to inflict punishment” and thus their imposition may reflect the triviality of an offence or special circumstances relating to the offender. The offender still has criminal record, but no further punishment is imposed as the process of criminal proceedings is seen to be a sufficient punishment
What are the two different types of discharges?
Absolute Discharges (S.79 Sentencing Act 2020)
Conditional Discharges (S.80 Sentencing Act 2020)
What is an absolute discharge?
Effectively no punishment is imposed by the court as they feel it has been punishment enough by going through the court system
this is likely when the offender is technically guilty but culpability is very low
If the offender reoffends the court can impose another sentence in place of the discharge this is commonly used in the Mags for first time offenders
e.g Whitehead
D convicted of shoplifting tin of ham and beef and a pair of tights. She had an “unblemished character” and was living in difficult circumstances. Bring up her children by herself, one of who was mentally ill. CA said the appropriate sentence was a conditional discharge for 12 months
What sentences can magistrate courts impose?
6 months in prison but for triable either way it is up to 12 months
Unlimited fine (s.85 LASPO 2012)
Youth “Detention and Training order” up to two years
What sentences can the crown court impose?
Life imprisonment
Unlimited fine
Only restrictions come from acts of parliament covering the offence
e.g Murder with Murder (Abolition of the Death Penalty) Act 1965 = mandatory life sentence and tariff
e.g ABH under S.47 Offences Against the Person Act 1861 = 5 years statutory max
When deciding a sentence what must the court consult?
Sentencing guidelines for the offence
these were created by the Sentencing Council and provide a starting point
-our system runs on the idea of tariffs and that each offence should attract a certain severity of sentence which increases or decreases alongside the mitigating or aggravating factors
What does S.63 Sentencing Act 2020 state?
When the court is considering the seriousness of any offence it must consider ..”the offender’s culpability in committing the offence and any harm which the offender has caused, or was intended to cause or might foreseeably have caused”
State some aggravating factors
-Previous conviction
-Severity
-V was serving the public
-Hostility towards a certain group
State some mitigating factors
-first offence
-personal circumstances
- Guilty plea
remorse
What is the reduction in sentence for an early guilty plea?
pleading guilty can attract a discretionary reduction in sentence as per S.73 Sentencing Act 2020 it can attracted 1/3 reduction however reduction is capped at 5 years
Who are youth offenders?
those aged 10-17
Why has the sentencing of young offenders caused dilemmas?
1) Children are less responsible for their actions then adults
2) Children should be steered away from crime
3)Sentencing should reform as well or instead of punishing
4)Criminal record can have a disproportionate effect on youth
What are the two approaches to youth sentencing?
Rehabilitation and Retribution
What is rehabilitation?
the idea that there will be no change in offending unless the underlying cause of that behaviour is addressed
What is retribution?
Such offenders be regarded as bad, and have their actions punished on the basis punishment is necessary to send a strong clear message
What act and section lays our the current framework for addressing youth offending?
S.58 Sentencing Act 2020
the courts must have regard to
-preventing the re-offending
-focus on the welfare of the offender
As well as the code for crown prosecutors stating that the CPS must consider the interests of the youth when deciding to prosecute (under paragraph 4.12 (d))
e.g Edllington case (2010) Two D’s (aged 10 and 11) robbed, tortured and seriously injured tow other boys. Ds admitted to causing S.18 GBH with intent. They had grown up in a violent and toxic environment which the court acknowledged. However they also showed a chilling lack of remorse. He put the boys on a minimum detention of 5 years however the risk posed to the public meant they were likely to be locked away for longer. They were released in 2016 after 6 years and granted life long anoymity.
In 1963 what act was amended to change the age of criminal responsibility from 8 to 10?
S.50 Children and Young Person Act 1933
(Children under 10 are to be deemed “Doli incapax” - “in capable of crime”
Note if someone under wo foes break the law they can be given a local child curfew
What did S.34 Crime and Disorder Act 1998 confirm?
all children over the age of 10 are presumed to know right from wrong
However, despite increasing the age of responsibility in 1963 there are still some calls for it to be increased further as some European countries, have children 14 and under who commit offences no appearing before criminal courts but instead civil courts
What did the United Nations Committee on the Rights of Children Report 2002 do?
Condemned the UK for imposing liability on such young children and called for the Uk to increase it to 14 years old.
What did the Private members Bill Age of Criminal Responsibility Bill do?
Proposed to increase the age of criminal responsibility to 12, indicating some reform in these area is desired, though it did not get passed the first reading
Regarding Pre-trial processes for youth what are the rules on police interaction?
-Young suspects should not be arrested nor interviewed at school
-S.56 PACE 1984= parent/guardian inform of arrest as soon as possible
-S.57 PACE 1984= appropriate adult
Regarding pre-trial processes for youth what are the rues on remand and bail?
Every suspect ahs the right to bail under the Bail Act 1976
But the S.4 Presumption is even stronger when dealing with young people, where bail is refused children under 17 are usually remanded in local authority accommodation
What is the trial process?
=youth courts
established by the Children Act 1908 but now governed by the Criminal Justice Act 1991, it has jurisdiction over young defendant
-it is separate from the adults mag court
-lay magistrates receive special training, be under 65 and sit as a mixed gender bench
-reporting restrictions
What is the idea behind youth courts?
to keep young offenders separate from adult offenders and maximise the possibility that early, sensitive and appropriate intervention will prevent the youth bring caught in a cycle of re-offending, this accords with the general emphasis on welfare and rehabilitation
What is the appeal route from the Youth Courts?
Appeal against sentence or conviction to the crown court where a judge and 2 youth court mags rehear and determine the case afresh
Why was the case of T and V v uk so significant for Youth defendants?
Jon Venables and Robert Thompson did not have a fair trial (article 6) as the court procedures did not allow them to participate in a meaningful manner. No concessions were made for their ages or vulnerability
Who wrote the practice direction on trial procedure?
LCJ Bigham
What are the practice directions?
the process should avoid humiliation, abuse or distress of D
no wig or gowns
public access should be limited
courtroom should be adapted
frequent breaks
address the D by their first name
