Powers of the courts - sentences available to criminal courts, adults

Magistrates maximum 6 months

Judges and magistrates have very wide discretion in selecting the sentence they impose (except for murder) but parliament has restricted their choices. Parliament has allowed

Magistrates to impose a maximum sentence of 6 months imprisonment (in October 2006 this will increase to 12 months as a result of the Criminal Justice Act 2003) for a single offence and a maximum fine of £5,000.

No limit for Crown Court judges

Judges in the Crown Courts can impose a fine of any amount.

The highest fine ever imposed was on 7th October 2005 of £10 million (reduced to £7.5 million on appeal) on the rail maintenance company Balfour Beatty that was implicated in the Hatfield train crash where 4 died 102 injured.

Judges can impose a sentence of custody (imprisonment) for life.

(The European Commission fined Microsoft 500 million Euros in 2004).

Statutory maximum

Other restrictions include maximum penalties for the type of offence, for example, the maximum penalty for theft is seven years imprisonment. When judges or magistrates pass a sentence, they not only look at the sentences available, but also which of the aims of sentencing found in the Criminal Justice Act 2003 they are seeking to achieve.

Minimum sentences

Murder

Murder has a fixed minimum term; a sentence of life imprisonment. There are about 6,000 such offenders.

Minimum sentences for certain offences

The Crime (Sentences) Act 1997 imposed minimum sentences for the first time on certain repeat offenders. These provisions are now laid down in the Powers of Criminal Courts (Sentencing) Act 2000 (PCCS).

1. Mandatory life sentence for second serious offence

Section 109 PCCS

"Two strikes and out", is no longer available as a sentencing principle for courts.

Note: This sentencing option has been repealed by the Criminal Justice Act 2003 Sch 37 (7) Para 1.

It was introduced by section 2 Crime (Sentences) Act 1997 on 1 October 1997, this was consolidated into the Powers of the Criminal Courts (Sentencing) Act 2000 (section 109) finally removed in 2003.

It appears that the sentencing policy simply was not working, concern was expressed about the ever increasing number of offenders caught by this section and its lack of deterrent effect. Also because there were some convicts who despite having committed a serious offence twice were thought not to be dangerous enough for custody. In any event a new scheme for dangerous offenders was introduced - "indeterminate sentences".

“Serious offences” means:

inchoate offences of murder (attempt, conspiracy, incitement, soliciting); manslaughter; GBH; rape etc;
firearms offences including robbery with a firearm]

2. Seven years for third class A drug trafficking offence

Section 110 PCCS

Section 110 PCCS requires the court to impose a 7 year sentence on third conviction for Class A drug trafficking, unless court believes this would be unjust.

3. Three years on third conviction for domestic burglary

Section 111 PCCS

The court has a discretion not to impose the minimum custodial sentence of three years if it is of the opinion that there are particular circumstances which relate to any of the offences or to the offender which would make it unjust to do so in all the circumstances. The particular circumstances must be stated in open court.

Minimum term for some offences e.g. firearms

Section 51A of the Firearms Act 1968 provides for minimum sentence of five years for an offender who is 18 or over who is guilty of certain firearms offences.

Understanding different types of sentences

Criminal Justice Act 2003

The main legislation controlling sentencing is the Criminal Justice Act 2003 (CJA) and we are interested in four main types of sentence available to courts.

Overarching principles

In every case where the offender is aged 18 or over at the time of conviction, the court must have regard to the five purposes of sentencing contained in section 142(1) Criminal Justice Act 2003:

(a) The punishment of offenders

(b) The reduction of crime (including its reduction by deterrence)

(d) The protection of the public

(e) The making of reparation by offenders to persons affected by their offence

The Act does not indicate that any one purpose should be more important than any other and in practice they may all be relevant to a greater or lesser degree in any individual case – the sentencer has the task of determining the manner in which they apply.

Sentencing - the structured approach - the steps

Start:

The seriousness of the offence

The sentencer must start by considering the seriousness of the offence, the assessment of which will:

determine which of the sentencing thresholds has been crossed;
indicate whether a custodial, community or other sentence is the most appropriate;
be the key factor in deciding the length of a custodial sentence, the onerousness of requirements to be incorporated in a community sentence and the amount of any fine imposed.

Two main parameters

A court is required to pass a sentence that is commensurate with the seriousness of the offence. The seriousness of an offence is determined by two main parameters;

the culpability of the offender and
the harm caused or risked being caused by the offence.

Section 143(1) Criminal Justice Act 2003 provides:

“In considering the seriousness of any offence, the court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused.”

Culpability

Four levels of criminal culpability can be identified for sentencing purposes:

Where the offender;

Has the intention to cause harm, with the highest culpability when an offence is planned. The worse the harm intended, the greater the seriousness.
is reckless as to whether harm is caused, that is, where the offender appreciates at least some harm would be caused but proceeds giving no thought to the consequences even though the extent of the risk would be obvious to most people.
has knowledge of the specific risks entailed by his actions even though he does not intend to cause the harm that results.
is guilty of negligence.

Harm ...

To individual victims

To the community

Other types of harm

The relevant provision is widely drafted so that it encompasses those offences where harm is caused but also those where neither individuals nor the community suffer harm but a risk of harm is present.

There are gradations of harm within all of these categories.

In some cases no actual harm may have resulted and the court will consider relative dangerousness of the offender's conduct.

This may include economic loss, harm to public health, or interference with the administration of justice.

For example, cruelty to animals. Public concern about some behaviour, both to individuals and to society as a whole for example, by the supply of prohibited drugs.

The Assessment of Culpability and Harm

Seriousness includes not only of any harm actually caused by the offence, but also of any harm that was intended was foreseeable.

Harm must always be judged in the light of culpability. Culpability will be greater if:

an offender deliberately causes more harm than is necessary for the commission of the offence, or
where an offender targets a vulnerable victim (because of their old age or youth, disability or by virtue of the job they do).

Aggravating Factors

Sentencing guidelines normally include a list of aggravating features which would indicate either a higher than usual level of culpability on the part of the offender, or a greater than usual degree of harm (or sometimes both).

The lists below bring together the most important aggravating features with potential application to more than one offence or class of offences.

Factors indicating higher culpability (blameworthiness):

Offence committed whilst on bail for other offences
Failure to respond to previous sentences
Offence was racially or religiously aggravated
Offence motivated by, or demonstrating, hostility to the victim based on his or her sexual orientation (or presumed sexual orientation)
Offence motivated by, or demonstrating, hostility based on the victim's disability (or presumed disability)
Previous conviction(s), particularly where a pattern of repeat offending is disclosed
Planning of an offence
An intention to commit more serious harm than actually resulted from the offence
Offenders operating in groups or gangs
“Professional” offending
Commission of the offence for financial gain (where this is not inherent in the offence itself)
High level of profit from the offence
An attempt to conceal or dispose of evidence
Failure to respond to warnings or concerns expressed by others about the offender's behaviour
Offence committed whilst on licence
Offence motivated by hostility towards a minority group, or a member or members of it
Deliberate targeting of vulnerable victim(s)
Commission of an offence while under the influence of alcohol or drugs
Use of a weapon to frighten or injure victim
Deliberate and gratuitous violence or damage to property, over and above what is needed to carry out the offence
Abuse of power
Abuse of a position of trust

Factors indicating a more than usually serious degree of harm:

Multiple victims
An especially serious physical or psychological effect on the victim, even if unintended
A sustained assault or repeated assaults on the same victim
Victim is particularly vulnerable
Location of the offence (for example, in an isolated place)
Offence is committed against those working in the public sector or providing a service to the public
Presence of others e.g. relatives, especially children or partner of the victim
Additional degradation of the victim (e.g. taking photographs of a victim as part of a sexual offence)
In property offences, high value (including sentimental value) of property to the victim, or substantial consequential loss e.g. where the theft of equipment causes serious disruption to a victim's life or business)

Mitigating factors

Some factors may indicate that an offender's culpability is unusually low, or that the harm caused by an offence is less than usually serious.

Factors indicating significantly lower culpability:

A greater degree of provocation than normally expected
Mental illness or disability
Youth or age, where it affects the responsibility of the individual defendant
The fact that the offender played only a minor role in the offence

Personal mitigation

Section 166(1) Criminal Justice Act 2003 makes provision for a sentencer to take account of any matters that 'in the opinion of the court, are relevant in mitigation of sentence'.

When the court has formed an initial assessment of the seriousness of the offence, then it should consider any offender mitigation. The issue of remorse should be taken into account at this point along with other mitigating features such as admissions to the police in interview.

Individualised sentences

In some cases, it is not appropriate to use the tariff system but to impose a sentence aimed at dealing with the needs of the offender.

Individualised sentences may be considered for:

Young offenders
Intermediate recidivists
Inadequate recidivists
Psychiatric cases

General principles state that the more serious the crime the more severe the penalty

In terms of their severity they are:

imprisonment (custody)

community sentence

fines

discharges

Prevalence…

The key factor in determining whether sentencing levels should be enhanced (sentence increased) in response to prevalence (some crime that is happening a lot in the area) will be the level of harm being caused in the locality.

Enhanced sentences should be exceptional and in response to exceptional circumstances. Sentencers must sentence within the sentencing guidelines once the prevalence has been addressed.