- The Criminal Justice and Court Services Act 2000 and
- The Powers of the Criminal Courts (Sentencing) Act 2000 (a consolidating
statute)
Sentencers have guidance on how to sentence in specific circumstances from the Court of Appeal judgments; Court of Appeal Sentencing Guidelines, informed by the Sentencing Advisory Panel, Practice Directions issued by the Lord Chief Justice
The Magistrates’ Association sentencing guidelines which recommend sentence lengths and factors which might aggravate or mitigate the offence.
Work is currently being done in all parts of the UK to bring more consistency in sentencing, but judges remain independent individuals who have the power to use discretion, based on the differing circumstances of each case.
Maximum and minimum sentences for some offences in the UK are set down by legislation. The Sentencing Advisory Panel (SAP) is an independent public body charged by the Home Office with encouraging consistency in sentencing throughout the courts of England and Wales. SAP advises the Court of Appeal on issuing guidance for specific areas, such as child pornography and rape.
"Guidelines from the Court of Appeal encourage consistency in sentencing. They are not issued on the spur of the moment, or as a response to media pressure, but after a period of deliberation and public consultation. The independent Sentencing Advisory Panel plays a key role in this process." Professor Martin Wasik, Chairman of the SAP
There are no upper or lower limits to guide the judge, although case law and previous appeal rulings on sentences will inform future cases.
Factors for the judge to consider:
The crime
Intention and state of mind of offender
Consequences of the crime
Mitigation & Aggravation
Guilty plea
Remorse
Previous "good character"
Legislative and other guidelines
Legal precedents
The Judge has to take in consideration mitigating and aggravating factors, mitigating factors being the beneficiary to the defendant and aggravating factors being the opposite.
Having considered the circumstances of the crime the sentencing judge will consider the personal circumstances of the offender.
“Statute recognises that when imposing a custodial sentence a court may take account of such matters as, in the opinion of the court, are relevant in mitigation of sentence” Criminal Justice Act 1991, section 28(1)
The matters which may, in a proper case, mitigate the seriousness of an offence or the severity of a sentence are legion. They may, depending on all the facts, include such matters as: uncharacteristic behaviour under the influence of intoxication, the voluntary payment of compensation, lapse of time since commission of the offences, the consequences of conviction or sentence, responsibility for dependents, youth or old age, emotional stress, financial need, illness or disability; assistance to the police; provocation. In most cases the two most potent grounds of mitigation are likely to be an early plea of guilty and a previous good character.
An example of this is Aug Ref (No.106.of 2002) Jan 31st,2003,CA, Defender Hall who was charged with two counts of sexual intercourse with a girl aged 12 years old and received 12 months for each offence. He pleaded guilty to the two offences which is on its own is a mitigating factor. However its a little more complicated, as shown below.
Aggravating Factors Mitigating Factors
- Age differential between offender - Relationship between offender
and victim. and victim (consensual)
- multiple offence (instigated by - No previous convictions
offender) for sexual offences (could be
other different offences)
- effect on the victim - Offender not in position of
(impact statement from girls trust (does not mitigate in this
mother, in her opinion the offence)
daughter was shy & withdrawn)
- Guilty plea – biggest factor
in his favour.
The Sentence was increased by to two and half months which means he spends the rest of his life on the sexual register. If the sentence under two years he only spends ten years on the sexual register.
The roles of a judge is a difficult job, especily sentencing however there are some fundamental guidelines such as: Statute which requires what common justice in any event dictates, that in the generality of cases a custodial sentence shall be:
“for such term (not exceeding the statutory maximum) as in the opinion of the court is commensurate with the seriousness of the offence or offences and associated offences for which the offender is to be sentenced.” Criminal Justice Act 1991, sections 2(2)(a).
In assessing the seriousness of any offence the court is now permitted to take into account any previous convictions of the offender and any failure of his to respond to previous sentences. But the court may, as already noted, take into account such matters as, in the opinion of the court, are relevant in mitigation of sentence.
“And in determining what sentence to pass on an offender who has pleaded guilty to an offence a court must take into account the stage in the proceedings at which the defendant indicated his intention to plead guilty (the earlier the indication, the better for the defendant) and the circumstances in which the indication was given.” Criminal Justice and Public Order Act 1994, S.48.
Despite these rules the judge must always in serious crimes other than murder, exercise a subjective judgment, this was thought to promote the ends of justice. A Home Office White Paper of 1990 said that:
"Its not the Government's intention that Parliament should bind the courts with strict legislative guidelines. The courts have shown great skill in the way they sentence exceptional cases. The courts will properly continue to have the wide discretion they need if they are to deal justly with the great variety of crimes which come before them. The Government rejects a rigid statutory framework, on the lines of those introduced in the United States, or a system of minimum or mandatory sentences for certain offences. This would make it more difficult to sentence justly in exceptional cases."
The most common appeal is that the sentence was passed on with the wrong guidelines or manifestly excessive, this area is known to be difficult in identiftying the guidelines. The facts and circumstances of individual cases and offenders are so varable it will sometimes produce an unjust sentence. Judges have masses of pressure from the media and public opinion. As mentioned no case is alike so the judge has to use his discretion and follow the guidelines he is given to make his final decision. It is generally acknowledged that inconsistencies in sentencing have often contributed to public dissatisfaction with sentencing policy. The Court of Appeal has from time to time issued decisions which are specifically referred to a “guidelines” for future use. However, even these “guidelines” do not deprive judges of their discretion over the sentences which are ultimately imposed in individual cases. The Court of Appeal has always been wary of giving the impression that its decisions are to be regarded as absolutely authoritative and has often stressed that each case depends on its own facts.
The Government has sought to encourage the Court of Appeal to produce sentencing guidelines for a wider range of criminal offences on a more systematic basis. Section 80 of the Crime and Disorder Act 1998 requires the Court of Appeal to consider producing or revising sentencing guidelines, whenever it hears an appeal against sentence, reviews a sentence referred to it by the Attorney-General under the Criminal Justice Act 1988, or receives a proposal from the Sentencing Advisory Panel established under section 81 of the 1998 Act. In considering guidelines, the Court must have regard to:
− the need to promote consistency in sentencing;
− the pattern of sentencing for similar offences;
− the cost and effectiveness of different sentences; and
− the need to promote public confidence in the criminal justice system.
Any guidelines produced must include criteria for determining the seriousness of offences, including criteria for determining the weight to be given to any previous convictions of offenders or any failure to respond to previous sentences.
Bibliography
Criminal Justice and Public Order Act 1994
Criminal Justice Act 1991
Professor Martin Wasik, Chairman of the SAP
Home Office White Paper of 1990
A Ashworth, (2000), Sentencing & Criminal Justice, Antony Rowe Ltd
Lord Bingham of Cornhill
Crime and Disorder Act 1998
Criminal Justice Act 1988