Sentencing and Criminal Justice

Andrew Ashworth, Rory Kelly

• Publisher: Hart Publishing
• Year: 2021
• ISBN:
  9781509936298
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This revised and updated new edition focuses on major developments in sentencing law, practice and theory. Sentencing in England and Wales is now dominated by Sentencing Council guidelines, and scrutiny of those guidelines is central to this book. Issues of principle are identified and discussed, to include the constitutional position of the Sentencing Council; the meaning of, and challenges to, proportionality; and the sentencing of BAME offenders and women offenders. The book welcomes the new Sentencing Code, introduced as the Sentencing Act 2020, and critically examines the government's plans for sentencing reform, set out in the 2020 White Paper A Smarter Approach to Sentencing. Throughout the book, sentencing is explored in its wider criminal justice context – making it essential reading for courses on sentencing, criminal justice and criminal law.

1

An Introduction to English Sentencing

1.1.Courts and Crimes

1.2.The Available Sentences

1.3.The General Statistical Background

1.4.What is Sentencing?

1.5.The Principal Sources of Sentencing Law

1.6.Conclusions

The reform of sentencing is a frequent feature of criminal justice policy and lawmaking. This, of itself, is not surprising, because sentencing decisions attract significant public attention and, at times, outcry. What sentences are available? What values should inform sentencing? What sentences are given in practice? As a topic, sentencing can be appraised from a myriad of overlapping perspectives, be they doctrinal, statistical, principled or policy-based. In this introductory chapter, we provide some necessary context on sentencing in England and Wales. We begin, in 1.1, with some remarks on criminal law and the courts. The main types of sentences that are available in England and Wales for both adult and youth offenders are detailed in 1.2. Some statistical context on sentencing and criminal justice more generally is provided in 1.3. We then turn to the surprisingly tricky question of what a sentence is in 1.4. Detail on the primary sources of sentencing law in England and Wales, legislation, case law and definitive sentencing guidelines, is provided in 1.5.

1.1. Courts and Crimes

Sentencing is not a detached enterprise. Those who are sentenced are sentenced for criminal offences in criminal courts. Some initial remarks are thus needed on criminal offences in English law and the structure of criminal courts. The structure of criminal law and criminal courts is complex, but it is important to dispel the misleading image of one type of judge sentencing in every case. Some offences, including murder and manslaughter, remain part of the common law, but most offences were created by statute and have a statutory maximum penalty.¹ For the purposes of trial, offences were divided into three categories by the Criminal Law Act 1977: offences triable only on indictment, offences triable only summarily, and offences triable either way. The most serious offences (eg murder, rape) are triable only on indictment, at the Crown Court. A large number of less serious offences are triable only summarily, in magistrates’ courts. The middle category of offences triable either way comprises most burglaries, thefts and frauds. The first question in these cases concerns the defendant’s intended plea: if the defendant indicates a plea of guilty, the magistrates must assume jurisdiction and proceed to sentence, unless they decide that their sentencing powers are insufficient. If the intended plea is not guilty, the defendant will be tried at a magistrates’ court unless either the magistrates direct or the defendant elects to have the case tried at the Crown Court.

The Crown Court sits with a judge and jury. There are three levels of Crown Court centre: first-tier centres, where both civil and criminal cases are tried and where High Court judges and circuit judges preside; second-tier centres, where High Court judges or circuit judges preside but only deal with criminal cases; and third-tier centres, where circuit judges or recorders deal with criminal cases, being mostly offences triable either way. The types of criminal offence are divided into four classes, according to their gravity, and some can only be tried by a High Court judge (of whom there are 99), whereas others can be tried by circuit judges or recorders. Circuit judges (669) are full-time judges, although they may divide their time between civil and criminal work.² Recorders (874) are part-time judges, whose main occupations are barristers, solicitors or (in a few instances) academics; most full-time judges start their judicial careers in this way. Appeals against sentence from the Crown Court go to the Court of Appeal and, if there is no point of law involved, the appeal requires that Court’s leave if it is to be heard. Applications for leave are dealt with by individual High Court judges.

Magistrates’ courts deal with the least serious criminal offences. There are 13,177 lay magistrates in England and Wales, divided into local benches, and a court normally consists of three magistrates. There are also 131 full-time and 86 part-time District Judges (Magistrates’ Courts) (DJMC), formerly known as stipendiary magistrates. A DJMC must be a barrister or solicitor of at least ten years’ standing, and he or she sits alone – usually dealing with the longer or more complicated summary cases. The powers of magistrates’ courts are limited to imposing a maximum of six months’ imprisonment in respect of one offence (or a total of 12 months for two or more offences).³ The maximum fine that may be imposed in a magistrates’ court is usually unlimited.⁴ Prior to 2015, the maximum had usually been £5,000. The maximum was raised to give magistrates ‘more flexibility when deciding on punishments’.⁵ Magistrates may also, having heard the evidence in a case of an either way offence, commit it to the Crown Court for sentence, if they form the view that the offence was so serious that greater punishment should be inflicted than they have power to impose.⁶ As mentioned above, a defendant who indicates an intention to plead guilty to an either-way offence should be sentenced by the magistrates unless they decide that their powers are insufficient, in which case they should commit to the Crown Court for sentence. A person who has been sentenced in a magistrates’ court may appeal against sentence to the Crown Court. The appeal takes the form of a complete rehearing of the case, before a circuit judge or recorder and two lay magistrates, and the Crown Court has the power to pass any sentence which the magistrates’ court could have imposed, even if that sentence is more severe than the one it did in fact impose.⁷

Summary offences are little discussed in this book, although there are frequent references to sentencing in magistrates’ courts (which also deal with many ‘triable-either-way’ offences). Most of the statistics quoted in 1.3 below refer to ‘indictable offences’, which include those triable on indictment and those ‘triable-either-way’, whether tried in a magistrates’ court or at the Crown Court.

1.2. The Available Sentences

The sentences available have frequently been set out and amended in various statutes from 1991. Notable examples include the Criminal Justice Act 1991, the Powers of Criminal Courts (Sentencing) Act 2000, and the Criminal Justice Act 2003. This ever-changing legislation gave rise to numerous challenges. In November 2018, the Law Commission published a report on a new Sentencing Code and a draft Code.⁸ The purpose of the Code is to overcome the myriad complexities within sentencing procedure by bringing together all the relevant law in one place. The Code thus includes everything from the purposes of sentencing to pre-sentence reports, and from the primary sentences available to the minimum sentences for certain offences. The Code received widespread support from practitioners and the judiciary. The Sentencing Act 2020 received royal assent on 22 October 2020 and came into force on 1 December 2020. Section 1(1) of the Act reads ‘Parts 2 to 13 of this Act together make up a code called the “Sentencing Code”’. In keeping with the Law Commission and the Act itself, we refer to the ‘Sentencing Code’ or the ‘Code’ throughout this text.⁹ The Code sets out the available sentences for offenders organised by the type of sentence and the age of the offender. The adoption of a Sentencing Code marks a significant advance in the clarity of statutory sentencing law.

This part of the chapter gives a preliminary sketch of the courts’ sentencing powers, referring also to the different sentences available in relation to young offenders. Most of these sentencing powers are discussed in detail in later chapters, and in 1.3 below we examine the reasons why only a small proportion of the crimes committed in any one year result in an offender’s being sentenced in court.

1.2.1. Sentences for Adult Offenders

A sentencing court, in all cases involving injury, death, loss or damage, may make a compensation order in favour of the victim or, in a case of death, the victim’s family: sections 133–146 of the Code. Prior to the Code there was an explicit statutory duty to consider making a compensation order in such cases. It remains to be seen if the removal of this duty to consider from statute will have any effect in practice: this is, we suggest, unlikely because a court should consider all plausible disposals during sentencing, and section 55 of the Code imposes an obligation to give reasons why a compensation order was not made when it was available. A compensation order handed down to an adult offender by a magistrates’ court can be for an unlimited amount. The court is, however, required to consider the means of the defendant when deciding whether to make an order, and when deciding the amount to be paid under any order. A compensation order may be the sole order imposed on an offender or may be made in addition to another disposal. The latter is the norm. In the year ending March 2020 (hereinafter 2020), compensation orders were given as the principal disposal to 4,512 offenders.¹⁰

The most lenient course which an English court can take after conviction is to order an absolute discharge, under section 79 of the Code. A conviction followed by an absolute discharge does not count as such for most future purposes. The power is used in less than 0.5 per cent of cases, and is generally reserved for instances where there is very little moral guilt for the offence.¹¹ The power to grant a conditional discharge is to be found in section 80, and once again the conviction does not count as such for most future purposes. The condition is that the offender must commit no offence within a period, of not more than three years, specified by the court. If the offender is convicted of an offence committed during that period, then he or she is liable to be sentenced for the original offence as well. There has been a noticeable decline in recent years in the number of conditional discharges imposed from 90,522 in 2011, to 35,804 in 2020.

The fine remains the most used penal measure in English courts, largely because of its widespread use for summary offences. In 2020, 902,756 fines were imposed; this made up 78 per cent of all sentences. Maximum fines are usually unlimited for indictable offences tried in the Crown Court, and, as above, magistrates’ courts may also impose unlimited fines, as of 2015, for certain offences. The leading principle – contained in section 125 of the Code – is that the fine must reflect the seriousness of the offence and the offender’s ability to pay. A court – per section 135 – must give priority to a compensation order over a fine where the offender has limited financial resources and appears unable to pay both.

A court may only impose a community sentence, states section 204 of the Code, if satisfied that the seriousness of the offence(s) is sufficient to warrant such a sentence. Having reached this decision, the court must then select the requirement(s) which: (i) are most suitable for the offender; and (ii) impose requirements on the offender which are commensurate with the seriousness of the offence. Possible requirements include unpaid work, drugs ...