#17844 - The Sentencing Framework - Criminology

The Sentencing Framework: Law and Practice

An Introduction to English Sentencing

Courts and Crimes

Offences divided into three categories by the CLA 1977:

1. Triable only on indictment (most serious offences like murder)

2. Triable only summarily (less serious offences, in magistrate’s courts)

3. Triable either way (most burglaries, thefts and frauds)

• First question concerns defendant’s intended plea: if D indicates guilty plea, magistrates must assume jurisdiction and proceed to sentence unless they decide their sentencing powers are insufficient

  • If plea is not guilty, then D will be tried at magistrate’s court unless either the magistrates direct or D elects to have the case tried at the Crown Court

• Magistrate’s courts deal with the least serious offences

Available Sentences

Sentences for adult offenders

• Sentencing court, in all cases involving injury, death, loss or damage, may make a compensation order in favour of the victim, or in the case of death, the victim’s family (S.133-146 of the Code, under SA 2020)

• Most lenient course is to order absolute discharge (S.79)

  • Can also order conditional discharge (S.80)

• Fine is most used penal measure

• Community sentence (s.204)

• Imprisonment (need to dismiss lesser alternatives before this, s.230)

  • Needs to be the shortest term commensurate with the seriousness of the offence (s.231)

Sentences for young offenders

• Group 1: Offenders aged 18, 19, or 20 – termed “young adults” and dealt with in adult courts

• Group 2: Offenders aged 10-17 – dealt chiefly in the youth court

• Most offenders in Group 2 are dealt with by a caution or other form of OOCD

• June 2017: new Sentencing Council guideline for sentencing children and young people came into force

  • Emphasises that the seriousness of the offence committed is only a starting point when sentencing children and young people and there is a need for sentencing to be individualistic and rehabilitation-focused where possible

What is sentencing?

S.401 of the Code: “ “Sentence”, in relation to an offence, includes any order made by a court when dealing with the offender in respect of the offence, and “sentencing” is to be construed accordingly”

Four possible components:

1. Must a person be imprisoned to have been sentenced?

   1. No; community sanctions and fines are sentences

2. Must sentences be punitive?

   1. Punishment is one of the statutory purposes of sentencing set out in S.57 of the Code

   2. Not the only purpose, but the core sentences set out above are by their nature punitive

3. Must all sentences be imposed on conviction?

   1. Not always (e.g. Penalty notice for disorder, a financial OOCD that may be imposed for a set list of offences like theft or disorderly behaviour)

   2. So D does not always have to admit guilt

4. Can sentencing be understood as a process?

   1. Unintended consequences, e.g. losing their job, loss of employment prospects

The principal sources of sentencing law

Legislation, definitive sentencing guidelines, and the common law.

Legislation

• Consolidated into the Sentencing Code

• Role of legislation has largely been to provide powers and set outer limits to their use

  • Has set mandatory sentences, such as mandatory life sentence for murder

• Also have mandatory minimum sentences

Definitive sentencing guidelines

• These are now definitive guidelines for the most significant offences sentenced in magistrate’s courts and also guidelines for most sentencing decisions in the Crown Court

• Essentially provides ranges of sentence for different levels of seriousness of each type of offence and, within each range, indicate a common starting point

• Aim is to structure judicial discretion, not to take it away

Guidelines as process

Sets out eight/nine step process

1. Determining the offence category

2. Starting point and category range

3. Consider any other factors which indicate a reduction, such as assistance to the prosecution

4. Reduction for guilty pleas

5. Dangerousness of the offence

6. Totality principle

7. Ancillary orders

8. Reasons

9. Consideration of time on remand

Departure Test for guidelines

Two-stage departure test in s.59(1) of the Code:

1. Duty to follow or apply the relevant guideline

2. Liberty to depart from it if it would be “contrary to the interests of justice” to apply the guideline in this case

Blackshaw and Others 2011

CoA failed to apply the departure test properly in an appeal against the sentence passed on certain offenders involved in the 2011 riots. Was the first appeal that had specifically raised the question of departures from the guidelines. Judgement gave no proper analysis of the “interest of justice” departure test, no reasoning as to its application to each of the appeals.

Judicial decisions

Two particular types of CoA judgement – guideline judgements and guidance judgements

Guideline judgements

• These are judgements from before the arrival of definitive guidelines in 2004

• A single judgement which sets out general parameters for dealing with several variations of a certain type of offence, considering the main aggravating and mitigating factors, and suggesting an appropriate starting point or range of sentences

Guidance judgements

• Judgements handed down since 2004

• Take their binding force from the general doctrine of judicial precedent

• Three sets of circumstances for delivering this judgement

  • Concern about the interpretation of an existing guideline

  • Where the Sentencing Council does not have a topic on its agenda and there seem to be several appeals that betray uncertainties about the proper approach

  • CoA believes it is right to develop a particular line of reasoning

Magistrate’s courts

• Regulated by the Magistrate’s Court Sentencing Guidelines – differ from Crown Court guidelines in that they integrate the ranges and starting points into a structured decision-making process

Proportionality and Seriousness

The proportionality principle

• In 1990, Home Office clearly showed the intention behind the reforms which became the CJA 1991 was to introduce a “new legislative framework for sentencing, based on the seriousness of the offence or just deserts”

• Apart from s.60 above, Sentencing Code does not elaborate on the term “seriousness of the offence”

Developing parameters of ordinal proportionality

Foremost attempt to establish some parameters for ordinal proportionality is that of von Hirsch and Jareborg (1991) – their approach (dealing only with crimes against individual victims) is to determine the effect of the typical case of particular crimes on the living standards of victims.

The interests violated or threatened by the standard case of the crime may be divided into four generic interests:

1. Physical integrity: health, safety and avoidance of physical pain

2. Material support and amenity: nutrition, shelter, and other basic amenities

3. Freedom from humiliation or degrading treatment; and

4. Privacy and autonomy

Once the nature of the interests violated has been settled, the first evaluative step is to assess the effect of violating those interests on the living standards of the typical victim:

1. Subsistence

2. Minimal well-being

3. Adequate well-being

4. Significance enhancement

So there are two main stages:

1. Preliminary quantification of the effect of a typical case on a victim’s living standards, taking account of the nature and remoteness of the interests violated

2. Culpability of the offender

Issues about proportionality here – e.g. if one crime is twice as severe as another, does it warrant twice the length of imprisonment/punishment?

Offence-seriousness in practice

Only modern committee of inquiry into English sentence levels, the Advisory Council on the Penal System in 1978, concentrated on levels of imprisonment without much discussion of relativities between offences.

Assessment of the maxima and the guidelines for several offences, drawing on the von Hirsch-Jareborg principles as a guide:

Murder

Sentence for murder is divided into three portions:

1. Minimum term – reflects the relative gravity of the particular offence

2. Detention determined by considerations of public protection

3. Release on licence, endures for life

Section 269 of the CJA 2003 (now s.322 of the Code) essentially requires a court, when setting the minimum term to be served by a murderer, to have regard to the principles set out in Sch.21 of the Act – indicates three starting points:

• A whole life minimum term for exceptionally serious cases

• 30 years for particularly serious cases such as murders of police or prison officers, involving firearms, sexual or sadistic killings

• 15 years for other murders not falling within either of the higher categories

Is it right to have a mandatory sentence for murderers? Justifications are controversial and there is significant disparity between the starting points.

Attempted murder

• Culpability required for attempted murder is an intent to kill, which is a higher degree of culpability than is required for murder (where intention to cause GBH will suffice)

• Offence range for attempted murder ranges from six years at the bottom of Level 3 to 35 years at the top of Level 1 – roughly half of those for murder

Manslaughter

• Single offence with several different legal bases

• Sentencing Council’s guidelines on manslaughter distinguishes four types of manslaughter:

  • Manslaughter by reason of diminished responsibility,

  • Manslaughter by reason of loss of control,

  • Unlawful act manslaughter,

  • Gross negligence manslaughter

Council’s manslaughter guideline adopts the prevailing judicial approach and steers by Schedule 21 on murder.

Diminished responsibility

• First step is to assess the degree of responsibility retained by the offender...