#19565 - 19. Custodial Sentences - BPC Criminal Litigation (formerly BPTC) 2024/2025

• Where there is no definitive sentencing guidelines for the offence, to arrive at a provisional sentence, the court should take account of all of the following (with the assistance of the parties):

  • The statutory maximum sentence (and if appropriate minimum sentence) for the offence;

  • Sentencing judgments of the Court of Appeal (Criminal Division) for the offence; and

  • Definitive sentencing guidelines for analogous offences.

• Once a provisional sentence is arrived at, the court should take into account aggravating and mitigating factors.

• Where D is convicted following a trial, it is for the sentences to form a view as to the facts of the offence established by the evidence, and to sentence accordingly. In general, the jury should not be asked to supplement a verdict of guilty by stating the factual basis on which they reached their decision, although it is open to the prosecution to put counts before the jury that reflect distinct factual bases for conviction of distinct offences.

• After the prosecution summary of the facts, or immediately after the jury's verdict of guilty if it was a not guilty plea, it is the responsibility of the prosecution to adduce evidence about the offender's character and antecedents.

• As an alternative to following strictly the procedure for taking other offences into consideration, the prosecution may invite the judge to treat the offences on the indictment of which the offender has been convicted, or to which the offender has pleaded guilty, as samples of a continuing course of conduct.

• After the prosecution summary of the facts and antecedents evidence, the court considers any reports that have been prepared on the offender. These may include pre-sentence reports, medical and psychiatric reports and assessments for suitability for a community sentence. In many cases, it will have been necessary to delay sentencing to allow such reports to be prepared.

Sentencing for matters of which the offender has not been convicted:

• It is a basic principle of sentencing only for those crimes of which the offender has been convicted and not for anything else.

• Three exceptions:

  • Taking into account a less serious secondary offence which has not been charged but the commission of which is implicit in, and represents an aggravating feature of, the more serious primary offence

  • If the offender expressly asks for the other offences to be taken into consideration

  • If the prosecution case is that the offences on the indictment are merely samples of a continuing course of conduct and the defence accept that to be so.

Deferring sentencing:

• Deferment requires the offender’s consent and the court must be satisfied that exercise of the power would be in the interests of justice.

• The purpose for which sentence may be deferred is to enable the court, when it does deal with the offender, to have regard to:

  • The offender's conduct after conviction (including, where appropriate, the offender's making reparation for the offence), or

  • Any change in the offender's circumstances.

• These sentences require a finding by the court that the offender ‘dangerous’, in that the offender poses ‘a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.’

• Specified offences:

  • Those violent, sexual, or terrorism offences listed in sch.18 these carry a maximum...