Sentencing in England and Wales

The main statute on sentencing is the Criminal Justice Act 2003, which created a framework for sentencing decisions in the courts.[2] Although the Act sets out a number of factors that the court must take into account when passing sentence, the weight to be attached to each factor in a case is a matter for the sentencer. By specifying maximum sentences for particular offences, Parliament indicates its view of the seriousness of the offence. The Sentencing Council helps to refine this process by providing guidance, including sentencing guidelines which suggests a sentencing level in each case. The sentencer is required to consider the guidelines and, if they decide to impose a different type of sentence, to give their reasons for doing so.[3]

Section 142 of the Criminal Justice Act 2003[2] of the Criminal Justice Act 2003 sets out five purposes of sentencing, to which any court dealing with an offender must have regard:

• the punishment of offenders
• the reduction of crime (including its reduction by deterrence)
• the reform and rehabilitation of offenders
• the protection of the public
• the making of reparation by offenders to persons affected by their offences

This is not intended to be a hierarchical order.[4] The Sentencing Council has stated that "the Criminal Justice Act 2003 does not indicate that any one purpose should be treated as more or less important than another. In an individual case, any or all of the purposes may be relevant to a certain degree and it will be for the judge or magistrate to decide how they apply".[5] The Lord Chief Justice has said, “It is no purpose of sentencing to exact vengeance on an offender.”[6]

These considerations do not apply to fixed sentences, minimum sentences or certain orders imposed under the Mental Health Act 1983.

Such facts as whether the offence was committed on bail for other offences, or whether the defendant is subject to recall to prison or serving a community sentence will usually be highly relevant as aggravating the current offence. This information may reveal underlying issues, such as a drug problem. In motoring cases, previous endorsements on the driving record can have consequences, such as a period of disqualification under the "totting-up" rules.[7]

The court will consider the range of sentence as recommended by the sentencing guidelines, and then have regard to the details of each offence in order to assess its seriousness. This involves assessing the aggravating and mitigating features of the offence. Any hostility based on racial, religious, disability or sexual grounds demonstrated in the commission of the offence will be considered as an aggravating feature.[8] For example, the use of a weapon in an assault is an aggravating feature, or the fact that a person is in a position of trust if he/she commits an offence of theft.[7]

The defendant’s character, his previous convictions (most relevant will be those for similar offences) and any personal mitigation, as expressed by the defendant’s advocate or (if unrepresented) by the defendant in person. An early guilty plea will go towards reducing the sentence—this can result in a discount in up to a third of the sentence, depending when the plea is entered. The defendant’s personal circumstances will also be considered. His/her financial circumstances will be highly relevant when a fine, costs or compensation is considered because the court has a duty under section 164 of the Criminal Justice Act 2003 to take these into account when fixing the overall amount.[7][9]

In the event of the court considering either a community or a custodial sentence, it can order the offender('s) to have a pre-sentence report taken and prepared by the Probation Service for the court date. The court will have this done because it provides the court with the additional information about the defendant and their circumstances, the risk of re-offending and any personal issues likely to affect the sentencing, e.g. a drug addiction. Psychiatric report may be ordered in appropriate cases. Short reports can be prepared on the day, otherwise the usual time for obtaining a pre-sentence report is three weeks.[7]

After taking into account all the relevant information, and fixing the sentence accordingly, the court will announce the sentence in open court, addressing the defendant directly and giving reasons for the decisions. Ancillary orders such as costs and disqualification will also be announced at this time.

There is a right to appeal from a magistrates' court to the Crown Court within 21 days. Defendants who have received immediate prison sentences may apply for bail on lodging notice of appeal, but the decision to grant bail is entirely within the magistrates' discretion.

The sentencing guidelines issued by the Sentencing Council are at the heart of the courts' decision-making in sentencing. The development of these guidelines has been incremental, with the Magistrates' Association issuing their own guidelines and the Court of Appeal issuing guideline judgments in particular cases. Following the Crime and Disorder Act 1998, a Sentencing Advisory Panel was established to assist the courts in issuing sentencing guidelines. In 2003, this was supplemented by the Sentencing Guidelines Council comprising a majority of judicial members, which is now known as the Sentencing Council.[10][11]

Created by the Coroners and Justice Act 2009, the Sentencing Council is an independent body which promotes consistent approaches to sentencing by issuing guidelines, analysing the impact of those guidelines on sentencing practice and to improve the confidence of the public by publishing information and promoting awareness of sentencing. The council produces an annual report.[4]

Custodial sentences range from a minimum of five days to life imprisonment. They include:

• mandatory and discretionary life sentences
• fixed-term sentences
• intermittent custody
• suspended sentences

Section 152 of The Criminal Justice Act 2003[12] states that the court must not pass a custodial sentence unless it is of the opinion that the offence (or combination of offences): "was so serious that neither a fine alone nor a community sentence can be justified". The court must always state the reason for imposing a custodial sentence.

Other preconditions of a custodial sentence are that a pre-sentence report has been obtained (in most cases), and the defendant is legally represented or has been offered the opportunity to be represented and has refused.

For offenders aged between 18 and 20 years, the sentence is served in a Young Offenders Institution (YOI). For those aged 21 years and over, the sentence is served in a prison.

Although murder carries a mandatory life sentence, it rarely means that the offender will spend the rest of their natural life in prison. A "minimum term" is usually set by the judge to indicate the period the offender must serve in custody before being released on licence.[13] The relevant provisions are contained in the Criminal Justice Act 2003[1] It gives judges a clear starting point for the minimum period to be considered, ranging from a "whole-life" term down to 12 years. The offences for which a whole-life term should be imposed on an offender aged 21 years or over at the time of the offence are as follows:

• the murder of two or more persons, where each murder involves a substantial degree of premeditation or planning or the abduction of the victim or sexual or sadistic conduct; or
• the murder of a child if involving the abduction of the child or sexual or sadistic motivation
• a murder done for the purpose of advancing a political, religious, racial or ideological cause or
• a murder by an offender previously convicted of murder.

Another starting point is 30 years, which applies to offenders aged 18 years and over at the time of the offence in respect of the following categories of murder:

• murder of a police or prison officer in the course of his duty;
• murder involving the use of a firearm or explosive;
• murder for gain (e.g. a contract killing or murder during the course of a burglary);
• killing intended to obstruct the course of justice (e.g. murder of a witness);
• murder involving sexual or sadistic conduct;
• the murder of two or more persons (other than those for which a whole life starting point is appropriate);
• murder motivated by race, religion or sexual orientation; and
• a murder within the category of cases that would otherwise attract a whole life starting point committed by an offender aged under 21 at the time of the offence.

The starting point for a murder committed with a knife is a minimum of 25 years. This starting point was introduced following the murder of Ben Kinsella.

The next starting point is 15 years, which applies to any other murder committed by a person aged 18 years or over at the time of the offence. For offenders aged 17 years or under at the time of the offence, the starting point is 12 years.

Upon determining the appropriate starting point for the minimum term, the court will consider the aggravating or mitigating factors of the offence and may increase or decrease the term in order to arrive at the appropriate minimum term. Aggravating factors may include: a significant degree of planning or premeditation; victim particularly vulnerable because of age or disability; mental or physical suffering inflicted on the victim before death; abuse of position of trust; use of duress or threats against another person to facilitate commission of the offence; victim providing public service or performing public duty; or concealment, destruction or dismemberment of body. Mitigating factors may include: intention to cause serious bodily harm rather than to kill; lack of premeditation; offender suffering a mental disorder or disability which lowered his degree of culpability; 4 provocation (falling short of a defence of provocation); any element of self-defence; belief by the offender that the murder was an act of mercy; and the age of the offender.[14]

A sentence of life imprisonment is available to the court for offenders over the age of 18 who are convicted of a second serious sexual or violent offence. In exceptional circumstances, the judge has a discretion not to impose a life sentence.[15]

Life imprisonment is available to judges as a discretionary sentence for a number of serious offences.

The Crime and Disorder Act 1998.[16] allow for the early release of offenders from prison on the conditions that a curfew condition is imposed, which is enforced by electronic tagging. The period of curfew is increased with the length of the sentence. There is no automatic right to a home detention curfew each offender case is assessed individually. If a home detention curfew is not granted, a prisoner must serve half their sentence before being released on license. Home Detention orders were introduce to aid prisoners structure their lives and help to reduce recidivism rates.

Sections 224 and 227 of the Criminal Justice Act 2003 require the court to pass an extended sentence of imprisonment (if the offender was aged 21 or over on conviction) or an extended sentence of detention in a young offender institution (if he was aged 18, 19 or 20 on conviction) in the following circumstances:

1. The offence must be:

   a) one of the violent or sexual offences specified in Schedule 15; and

   b) punishable by a determinate sentence of less than 10 years.

2. There must be a significant risk to the public of serious harm (i.e. death or serious personal injury) caused by the offender’s committing further Schedule 15 offences.

The 'purposes of sentencing' provisions of section 142 of the Act and the requirement that the offence(s) must be so serious that neither a fine alone nor a community sentence can be justified do not apply.

"Serious harm" means death or serious personal injury, whether physical or psychological: S. 224 (3) CJA 2003. See R v Lang and others [2005] (The Times, 10 November) where the Court of Appeal indicated that previous case law would still be considered relevant guidance in assessing this issue.[17]

These are the so-called "three strikes and you're out" provisions. There is a mandatory minimum sentence of seven years for an adult who is convicted on three separate occasion of dealing in Class A drugs- section 110 Power of Criminal Courts (Sentencing) Act 2000.[18] Likewise, there is a minimum mandatory sentence of three years for anyone convicted of burglary of a dwelling for the third time - section 111 of the same Act.[19] For each sentence, court has discretion not to impose the minimum term if it considers it would be unjust having regard to the particular circumstances of the offence(s) or the offender. The court must state the particular circumstances when passing sentence.[20]

The court has power to impose a suspended sentence of imprisonment of up to two years.[21] The features of this sentence are:

• the offence must pass the custody threshold of being 'so serious'
• the term of imprisonment must be between 14 days and 6 months (24 months in the Crown Court)
• the court can order the offender to undertake requirements
• the sentence can be coupled with a fine
• a supervision period can be imposed of not less than 6 months and no longer than the suspended period of the sentence or two years, whichever is the shorter
• the order may be periodically reviewed and
• the sentence will be activated if the offender fails to comply with any requirement or commits any further offence(s) during the operational period, unless there are exceptional circumstances

It is at the court's discretion to fix the period of suspension (known as the operational period), which can be for any period up to two years. If during this time, the offender does not commit any further offences, the prison sentence will not be implemented. However, in the event that the offender does re-offend during the operational period, then the sentence is 'activated' and the offender will serve the suspended sentence along with any sentence given for the new offence. A suspended sentence is usually implemented to run consecutively to a term of imprisonment imposed for the new offence.

An unpaid requirement requires an offender to work between 40 and 300 hours on a suitable project organised by the probation service. The exact number of hours will be specified by the court and are usually worked in 8-hour shifts at weekends. The type of work will vary depending on locality and the probation service operating the scheme. For example, the offender may be required to paint school buildings, help build a play centre or work on projects clearing public areas.[23] Eric Cantona, the French footballer, was ordered to help coach youth footballing sessions when he was convicted for assaulting a fan.[24]

The notion behind prohibited activity orders is to prevent the offender from committing further offences of the same type he or she has just been convicted of. Often an offender is prohibited from going into a certain area where he or she has caused trouble. In some cases offenders have been banned from wearing particular garments such as a 'hoodie'. In 2006, a defendant who was found guilty of criminal damage was banned from carrying paint, marker pens or dye ink.[25]

A curfew requirement can require that an offender will be at a fixed address for between 2–12 hours during a 24-hour period for up to six months. The order can be enforced with electronic tagging. These orders can only be issued if there is monitoring system for curfew in their area. Monitoring can be done via spot-check, with private security firm sending employees to check on an offender at home or but more commonly by electronic tagging. The cost of tagging is estimated to be £675 per month per offender. This compares favourably with keeping an offender in prison which is estimated at £1,555 per offender per month.[25] A 2007 report showed that 58 per cent of offenders broke the terms of their tagging order and more than a quarter committed further offences.

An exclusion requirement prohibits an offender from going to certain place. They are designed to prevent re-offending by keeping an offender away from the place where they are likely to commit offences. The requirement can specify different places on different days. It can be imposed for up to two years in respect of offenders aged 16 years and over, or a maximum of three months for those under the age of 16. For example, a repeat shoplifter could be banned from going to particular shopping center.

Under a supervision requirement the offender is place under the supervision of a probation office for a period of up to three years. During this supervision period the offender must attend appointments with the officer or with any other person as directed by the supervising officer. By the Criminal Justice Act 2003,[1] such a requirement may be imposed for the purpose of 'promoting the offender's rehabilitation'.[25]

The courts can make an order that the offender pay a sum of money to his victim in compensation. There is a presumption that the court will make an order in an appropriate case since reasons must be given if no order is made. There is now NO upper limit on the maximum compensation that can be imposed in the Magistrates' Court (except for juveniles, where it is £5,000 per offence). In the event that the offender still has the stolen property the court will make a restitution order for the return of the goods to the victim.

Where an offender who is charged and convicted with a driving offence, the courts have the power to disqualify the offender form driving for a certain length of time, which will depend on the type and severity of the offence. There is a mandatory minimum 12 months for drink-driving offences. For previous drink-driving convictions within the preceding ten years, the minimum period of disqualification is three years. The courts also have the power to disqualify offenders for any offence where a vehicle was used in the commission of the offence, for example using a car to commit burglaries in rural areas.

The court can order an offender to be deprived of property he has used to commit an offence. A person convicted of a drink-driving offence can be deprived of his or her vehicle. The Proceeds of Crime Act 1995[28] also gives the courts the power to take from criminals all profits from a crime up to six years before conviction.

A sentence of detention in a young offenders' institution (or YOI) is available to the court in respect of those between the ages of 15 and 21 years (inclusive) who have committed imprisonable offences. The relevant provisions are contained in the Criminal Justice Act 1982, which introduced the sentence to replace borstal training. YOI's are managed by the Prison Service.[29] The term of detention is up to the maximum allowed for adult imprisonment for the relevant offence, and the same custody threshold ("so serious") applies as in the case of the adult court. The minimum period of detention is 21 days.

This sentence was implemented by the Crime and Disorder Act 1998.[16] for offenders aged 12 to 17 years (inclusive) who are persistent offenders or commit serious offences. The sentences will be between four months and two years, with part of the sentence being served in custody and part half under supervision the community. The term must be specified as four, six, eight, ten, twelve, eighteen or twenty-four months. The "youth offending team" (YOT) will draw up a plan of supervision which the offender is required to meet upon his release from custody - failure to do so may result in his being brought back to court and returned to detention. Supervision may be under an officer of the YOT, a probation officer or social worker.[30]

In cases involving very serious offences, the courts have additional power to order that the offender be detained for longer periods. For those aged between 10 and 13, this power is only available where the crime committed carries a maximum sentence of at least 14 years for adults. For those aged between 14 and 17, it is also available for causing death by dangerous driving, or for causing death by driving under the influence by drink or drugs. The length imposed by the judge cannot exceed the maximum sentence available for an adult.

Offenders aged 10–17 who are convicted of murder must be ordered to be detained during Her Majesty's pleasure. This is an indeterminate sentence which allows the offender to be released when suitable. The judge in the case can recommend a minimum number of years that should be served before release is considered, and the Lord Chief Justice will then set the tariff. If an offender reaches 22 while he or she is still serving the sentence he or she will then be transferred to an adult prison.

Community orders can only be given to young offenders aged 16 and over. The same requirements used for adults can be imposed, including an unpaid work requirement, an activity requirement, a prohibited and a curfew requirement. The only exception is the curfew limit which can be imposed from 10 upwards.

Attendance centre orders are only available to offenders aged 10–25. They involve attendance at a special centre for two hours per week up to a maximum of 36 hours for those aged between 16 and 24, and a maximum of 24 hours those aged 10 to 15. The minimum number of hours is usually 12, but can be less for those aged under 14. The centres used to be run by the police but are now run by the probation service; they are usually held on a Saturday afternoon and will include organized leisure activities and training. An Attendance centre order cannot be made if the offender has served a period of detention prior to the new offence.

Those who are 18 and under can be placed under supervision for a period of up to three years, supervision being provided by one of the following:

• the local social services
• a probation officer
• a member of the Youth Offending Team

Under Section 69 of the Crime and Disorder Act 1998,[31] a new community order called Action Plan Order which the courts can impose on offenders under the age of 18. In the government whitepaper No More Excuses, the government said it was 'intended to be a short to be a short intensive programme of community intervention combining punishment, rehabilitation and reparation to change offending behaviors and further crime'.[32] Action Plan Orders place the offender under supervision setting out requirements the offender has to comply with in respect to his or her action and where about during a period of three months.

These requirements can be any of the following:

• to participate in set activities
• to present himself to a specified person at stated times and places
• to attend an attendance centre
• to stay away from certain places
• to comply with arrangements for his education
• to make reparation.

The maximum amount that can be fined varies with the age of the young offender. Those between 10 and 13 years can only be fined a maximum of £250. Those aged between 14–17 the maximum is £1,000. Those aged 18 and over are subject to the normal limit of a magistrates' court: £5,000.

Repartition orders can be imposed on offenders under the age of 18. However, this order cannot be made in combination with a custodial sentence, Community Service order or an Action Plan Order. An order will require the offender to make reparation, as specified in the order, to a person or person who were victims of the offence, or were otherwise affected by it, or to the community at large. The order is for a maximum of 24 hours and the reparation order must be completed under supervision within three months of its imposition. An order for direct reparation to a victim can only be made with that person's consent.

Discharges may be used for defendants of any age, and are commonly used for first-time young offenders who have committed minor crimes. The courts cannot conditionally discharge an offender in the following circumstances:

• where a child or young offender who is convicted of an offence has been warned within the previous two years, unless there are exceptional circumstance which must be explained in open court.
• where the offender is in breach of an anti social behavior order
• where the offender is in breach of a sex offender order.

Reprimands and warnings are not sentences passed by the court, but methods by which the police can deal with offenders without bringing a case to court. For a reprimand or warning to be given, there has to be evidence that a child or young person has committed an offence and admits it. The police must also be satisfied that it would not be in the public interest for the offender to be prosecuted in court. A reprimand or warning can only be given if the offender has never been convicted of any offence. There is no maximum limit to the number of times that an offender can be 'cautioned' by the police. The first step is the reprimand. This can only be given if the young offender has not been previously reprimanded or warned. Even then, it should not be used where the police officer considers the offence so serious that a warning would be required. Any offender can be warned only if he has not been warned before or if an earlier warning was more than two years before. The child or young offender when warned must be referred to the Youth Offending Team. The YOT will assess the case and, unless it considers it inappropriate to do so, arranges for the offender to participate in a rehabilitation scheme.

A parenting order is an order under the Crime and Disorder Act 1998. Parenting orders are intended to offer training and support to parents to aid changing their children's offending behavior. Under such an order a parent can be mandated to attend counselling or guidance sessions for up to three months on maximum basis of one session per week. Also, the parent may be required to comply with the conditions imposed by the courts; for example,[33] taking the child to and from school and ensuring an adult supervises the child after school a court may make decide to make a parenting order where:

• the courts makes a child safety order
• the court makes an anti-social behavior order (or sex offender order) in respect of a child
• a child or young person is convicted of an offence
• a parent is convicted of an offence relating to truancy under the Education Act 1996.[34]

Parenting orders should only be made if it is desirable in the interest of preventing the conduct which gave rise to the order. There is the presumption that penetrating order will be issued to the parents of those under 16 who are committed of an offence unless it is felt as not desirable if so the court must state why.

The Crime and Disorder Act 1998[16] made mandatory requirements that each local authority in England and Wales set up one or more Youth Offending Teams (YOTs) in their receptive area. The aim of their establishment is to co-ordinate and build co-operation between agencies involved in youth justice and especially the probation service and social services. YOTs are responsible for co-ordination of the prisons of the youth justice service in their area. The composition of such a team must include a probation officer, a police officer, a representative of the local health authority and a person nominated by the chief education officer. Anyone else who is deem appropriate may joint the task force. The role and responsibilities of YOTs is designated under s 66 of the Crime and Disorder Act 1998,[35] any offender who is warned must referred to the local YOT, Youth Courts also refer offender to the YOT.