Sentencing Practice

Question 1

What four broad categories is adult sentencing divide into?

Answer 1

1) Custodial
2) Community
3) Fines
4) Discharge

Question 2

What is a custodial sentence?

Answer 2

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”

Question 3

What type of custodial sentences are there?

Answer 3

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

Question 4

State two examples of an indeterminate sentence (custodial sentences)

Answer 4

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

Question 5

State some examples of determinate sentences (custodial sentences)

Answer 5

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

Question 6

When is a suspended sentence deemed appropriate ?

Answer 6

-a realistic prospect of rehabilitation
-Strong mitigation and
- where immediately custody will result in a significant harmful impact upon others

Question 7

What are community sentences?

Answer 7

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

Question 8

As per S.201 Sentencing Act 2020 what options are available for a community sentence?

Answer 8

-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

Question 9

What act requires every community sentence to include a punitive element?

Answer 9

The Crime and Courts Act 2013

Question 10

What are fines ?

Answer 10

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

Question 11

What are discharges?

Answer 11

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

Question 12

What are the two different types of discharges?

Answer 12

Absolute Discharges (S.79 Sentencing Act 2020)

Conditional Discharges (S.80 Sentencing Act 2020)

Question 13

What is an absolute discharge?

Answer 13

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

Question 14

What sentences can magistrate courts impose?

Answer 14

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

Question 15

What sentences can the crown court impose?

Answer 15

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

Question 16

When deciding a sentence what must the court consult?

Answer 16

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

Question 17

What does S.63 Sentencing Act 2020 state?

Answer 17

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”

Question 18

State some aggravating factors

Answer 18

-Previous conviction
-Severity
-V was serving the public
-Hostility towards a certain group

Question 19

State some mitigating factors

Answer 19

-first offence
-personal circumstances
- Guilty plea
remorse

Question 20

What is the reduction in sentence for an early guilty plea?

Answer 20

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

Question 21

Who are youth offenders?

Answer 21

those aged 10-17

Question 22

Why has the sentencing of young offenders caused dilemmas?

Answer 22

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

Question 23

What are the two approaches to youth sentencing?

Answer 23

Rehabilitation and Retribution

Question 24

What is rehabilitation?

Answer 24

the idea that there will be no change in offending unless the underlying cause of that behaviour is addressed

Question 25

What is retribution?

Answer 25

Such offenders be regarded as bad, and have their actions punished on the basis punishment is necessary to send a strong clear message

Question 26

What act and section lays our the current framework for addressing youth offending?

Answer 26

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.

Question 27

In 1963 what act was amended to change the age of criminal responsibility from 8 to 10?

Answer 27

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

Question 28

What did S.34 Crime and Disorder Act 1998 confirm?

Answer 28

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

Question 29

What did the United Nations Committee on the Rights of Children Report 2002 do?

Answer 29

Condemned the UK for imposing liability on such young children and called for the Uk to increase it to 14 years old.

Question 30

What did the Private members Bill Age of Criminal Responsibility Bill do?

Answer 30

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

Question 31

Regarding Pre-trial processes for youth what are the rules on police interaction?

Answer 31

-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

Question 32

Regarding pre-trial processes for youth what are the rues on remand and bail?

Answer 32

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

Question 33

What is the trial process?

Answer 33

=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

Question 34

What is the idea behind youth courts?

Answer 34

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

Question 35

What is the appeal route from the Youth Courts?

Answer 35

Appeal against sentence or conviction to the crown court where a judge and 2 youth court mags rehear and determine the case afresh

Question 36

Why was the case of T and V v uk so significant for Youth defendants?

Answer 36

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

Question 37

Who wrote the practice direction on trial procedure?

Answer 37

LCJ Bigham

Question 38

What are the practice directions?

Answer 38

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

Question 39

what are the general youth sentencing options?

Answer 39

1) Pre-court disposal 2) First tier sentencing 3) community sentencing 4)custody

Question 40

what is a pre-court disposal?

Answer 40

= this is not prosecuting, the youth is instead diverted away from the criminal justice system with the hope that those diverted are less likely to reoffend as for many youths a criminal record can have a disproportionate effect

Question 41

what did LASPO 2012 introduce to youth sentencing options?

Answer 41

cautions (LASPO 2012 introduced into S.66ZA Crime and Disorder Act 1998). Prosecution is available however a youth caution can be more proportionate however the youth must admit to the offence and then have an appropriate adult during the caution

Question 42

What is a youth conditional caution?

Answer 42

(LASPO 2012 introduced into S.66A Crime and Disorder Act 1998) = youth caution and conditions imposed and monitored by YOT

Question 43

What is first tier sentencing?

Answer 43

aim to deter and rehabilitate and are imposed by the courts and much more formal: -Discharge (absolute and conditional) -referral order (governed by S.83 Sentencing Act 2020) this is given to young offender which is first offence and admits guilt. The offender is referred to the youth offenders panel and a youth offenders contract is drawn up which last up to 3-12 months. NOTE this cannot be used in crown court -Reparation order (under S.109 sentencing act 2020) this requires adequate reparations to be made to the Victim -fines obviously the Ds circumstances are regarded by the courts children 10-13 £250 maximum children 14-27 £1,000 maximum when the child is under the 16 parents commonly have a duty to pay

Question 44

what is a community sentence? youth rehabilitation order

Answer 44

s.173 sentencing act 2020 provides youth rehabilitation orders this is a community order that the youth has to complete for up to 3 years -main aim to reduce the number of youths reoffending -can be applied to any criminal offence based on the courts opinion -that the offence was serious enough to warrant it -suitable to the offender -the restrictions imposed on the Ds liberty are necessary and proportionate e.g curfew requirement e.g electric tag requirement e.g supervision requirement (10-16 for up to 3 years with a strong emphasis on personal development) e.g Attendance centre requirement help restrict leisure time and help promote better use of free time -YRO are supervised by the YOT with the young person having to make a youth rehabilitation order plan there are no restrictions on how many times a youth offender can be sentenced to a YRO

Question 45

what is youth custody?

Answer 45

those under 18 cannot be imprisoned instead: -YOUTH OFFENDER INSTITUTIONS (15-21) average annual cost per prisoner is £130,000 -SECURE TRAINING CENTERS (up to 17 years) average annual cost per prisoner is £305,000 -SECURE TRAINING HOME (10-14) average cost is £300,000 as of march 2024 there were 410 youths in custody