When considering what may happen to a defendant convicted of a criminal offence at the end of a criminal trial, two factors are relevant


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SENTENCING

When considering what may happen to a defendant convicted of a criminal offence at the end of a criminal trial, two factors are relevant

  • What, as a matter of sentencing policy, should we be aiming to achieve by the sanction?

  • What particular measures are available to a judge, and which ones would be most effective?

Sentencing policy is a matter for government and will vary depending on the government of the time. For instance most recently there has been concern over the theft of mobile phones.

prison

AIMS OF SENTENCING

The judges main concern in sentencing convicted offenders is (and always has been) the protection of the public. Any conflicting principles (e.g. justice and equality) give way to that concern.

Alongside this, judges tend to reflect in their sentencing policies what they take to be the social condemnation of the offence and offender concerned – i.e. an element of moral condemnation, with judges aiming to reflect and uphold the morals and standards of society. Hence long term prison sentences on people like the Moors Murderers and the Yorkshire Ripper and more recently mobile phone thefts.

1. RETRIBUTION

This means punishment i.e. eye for an eye - someone breaks the rules they must be Punished This approach is very simple and is a vote—winner for politicians. The media tend to push for this approach also. Hogan views this as a ‘relic of barbarism’ and is seen by many not to be very useful. Harris argues that retribution is no longer the prominent sentencing objective that it was in the past.

2. DENUNCIATION

The objective of denunciation is to send clear messages about what a society will tolerate and what it will not, and in so doing will lay down the boundaries of what is seen as crime by current society. If particular conduct is seen to carry a harsh sentence, that conduct and those who involve themselves in it are seen to be denounced by society as a whole e.g. mobile phone theft

3. REFORM AND REHABILITATION

Here the aim is to rehabilitate or reform the defendant by using alternative sentencing policies. The idea is not to punish or deter but to treat or cure the ‘criminal deviance’ and therefore stop the offender committing further crimes.

Therefore, the rehabilitative sentence is tied not to the offence and its gravity but to the offender and his or her needs.

A strong policy of reform would result in resources being used to provide educational facilities in prisons and considerable support for newly released offenders. These are areas where there have been considerable cut backs.

4. DETERRENCE

This aim of sentencing is to deter both individuals and people generally from committing crime. A policy of deterrence would promote unpleasant sentences and possibly longer sentences of imprisonment The difficulty with this policy is that it presumes that people think before they commit a crime, it does not account for the involvement of alcohol and drugs. Reoffending rates indicate that individuals are not deterred by most sanctions. NB: there was no increase in Murders with the abolition of the death penalty.

5. PROTECTION OF SOCIETY

A very basic aim is to protect society - the rapist in prison cannot rape again. However, when they are released have they changed? When an offender mixes with other offenders they can learn new ways of offending and may intact become more dangerous.

6. REPARATION

This is aimed at compensating the victim of the crime usually by ordering the offender to pay a sum of money to the victim or to made restitution, for example, returning stolen property.


Activity

1. Draw a mind map of sentencing aims with key points included.

2. Research sentencing guidelines used in the courts.



SENTENCING PRACTICE

The sentence imposed is the responsibility of the judge or magistrate. Maximum sentences for offences will act as guidance along with policy decisions eg magistrates are currently clamping down on all forms of violent crime. More recently look what is happening with theft of mobile phones.

REDUCTION IN SENTENCE FOR A GUILTY PLEA

There can be a reduction in sentence for a guilty plea, particularly when it has been made early in the proceedings. The Sentencing Guidelines Council has suggested that the reduction should be up to one-third, whereas a guilty plea made after the trial has started should only be given one tenth reduction. This can be quite controversial.

R v Webster 2006

The Attorney-General referred as “unduly lenient” the sentence imposed on a man convicted of several sexual offences including the rape of a baby. Increasing the minimum term from 6 to 8 years because of the horrific nature of the offences the Court of Appeal stressed that the D had been sentenced to life imprisonment and would not be released after 8 years unless he was no longer a danger. The facts of the case made it questionable whether that day would ever be reached. It was also stated that the judge had been right to allow the full one third reduction in his sentence for a guilty plea, even though the evidence was overwhelming.

MINIMUM SENTENCES

The Crime (sentences) Act 1997 has provided minimum sentences for the first time:

• Automatic life sentence for a second conviction for attempted murder, rape or armed robbery

• Minimum of 7 years for a third, class A, drug-trafficking offence;

• Minimum of 3 years for a third conviction of burglary.

TARIFFS

There is also a normal sentence for each offence known as a tariff. For example if the maximum sentence is 6 months the tariff may be a fine or 2 months imprisonment The magistrate or judge would consider whether there were factors about the offence or offender that should influence them either to sentence above or below the tariff eg. pleas in mitigation, medical reports, character witnesses etc.

AGGRAVATING AND MITIGATING FACTORS

Aggravating and mitigating factors will be taken into account by the judge before deciding sentence; these will either increase of decrease the sentence.

Mitigating Factors

Reasons why the defendant should not be punished so severely:

Youth/old age

Previous good character

Provocation

Domestic or financial problems

Drink/drug dependency

Guilty plea

Aggravating Factors

Exemplary sentence may be required due to:

Racial or Religious motive

Previous convictions

Nature of the offence eg vulnerable victim

Defendant was on bail at the time of the offence.
Sentencing Guidelines Council

The Criminal Justice Act 2003 established the Sentencing Guidelines Council which can set issue guidelines on any aspect of sentencing e.g. reduced sentences for guilty pleas.


Activity

Using the local or national papers obtain examples of sentencing practice e.g. cases with aggravating and mitigating factors in them.



SENTENCING OPTIONS

IMPRISONMENT

S.152 Criminal Justice Act 2003 states that a court must not pass a custodial sentence unless it is of the opinion that the offence (or combination of offences) “was so serious that neither a fine alone nor a community sentence can be justified”.

There is concern that the prison population has risen rapidly in recent years. The government has forecast that the prison population is likely to rise to 93,000 by 2009. By 2004 the UK had the highest rate of prison population in the whole of Europe.

Mandatory life sentences

The only sentence a judge can give for murder is life. However, the judge is allowed to state the minimum number of years imprisonment that the offender must serve before being eligible for release on licence. The starting points range from a full life term, (30 years) down to 15 years. The starting point will be dependent on the seriousness of the offence e.g. a sexually motivated or sadistic murder would have a starting point of 30 years. Once the judge has decided on the starting point then aggravating and mitigating circumstances must then be considered. E.G. age or disability of the victim, physical suffering caused, lack of premeditation etc. In 2007 there were 22 people serving whole life tariffs in England and Wales compared to 25,000 in USA.

Discretionary life sentences

For some offences such as manslaughter, S.18 GBH, rape and robbery there is a discretionary life sentence. The judge has the choice whether to give a life sentence or not.

Fixed term sentences

Imprisonment for a set number of months or years is called a “fixed term” sentence. Prisoners do not serve the whole of their sentence they are normally automatically released after they have served half of the sentence. They will then be on licence for the remainder of their sentence and there will be conditions attached.

Intermittent custody

This is where the defendant spends weekends or other periods in prison but is free and able to live at home for the rest of the week. This was introduced by Criminal Justice Act 2003 and has been successful. The period to be served in prison must be between 14 to 90 days and the time that the sentences last must be between 28 to 51 weeks.

Suspended sentences

A suspended sentence is one where the offender will only serve the custodial period if he breaches the terms of the suspension. The prison sentence can only be between 28 and 51 weeks. The period of suspension can be between 6 months and 2 years. Under the Criminal Justice Act 2003 a suspended sentence can be combined with a community order. If the offender fails to meet the requirements the suspended sentence can be activated.

COMMUNITY SENTENCES

The Criminal Justice Act 2003 created one community order under which the court can combine any requirements they think are necessary. The court can mix and match requirements allowing them to fit the restrictions and rehabilitation to the offender’s needs.

Unpaid work requirement

The offender has to work between 40-300 hours on a suitable project organised by the probation service. The type of work will vary, for example painting sports centres etc.

Curfew requirement

An offender can be ordered to remain at a fixed address for between 2-12 hours in any 24 hour period. This can be up to 6 months and the offender will be tagged.

Supervision requirement

The offender will be placed under the supervision of a probation officer for up to 3 years.

Other requirements may include drug, alcohol and mental health treatment.

FINES

Fines are paid to the Crown. There are problems in the courts relating to non-payment of lines. Unit lines were introduced in 1991, but hued as being unfair Guidance is given in the Magistrates court relating to levels of fine but they are subject to a maximum of £5000.

ABSOLUTE AND CONDITIONAL DISCHARGE

Offender is either released, or released with the condition that if they come before the court again, both offences will be taken into consideration.

ANTI-SOCIAL BEHAVIOUR ORDER (ASBO)

This was introduced by the Crime and Disorder Act 1998. An ASBO may be made for anyone over 10 years who has acted in an anti-social manner. It is a civil order, but if breached, it has criminal penalties.


Activity

Using local or national papers find one example of the courts using the above sentencing options.



CRIMINAL LAW COURTS AND PROCEDURE

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The burden and standard of proof

The burden of proof in a criminal trial is on the prosecution. In other words they must present evidence to the jury or magistrates to establish the guilt of the defendant. The standard of proof is beyond a reasonable doubt, in other words the jury or magistrates must be sure of the defendant’s guilt before they can convict. If they have any doubt then they should acquit.

The Crown Prosecution Service

Prior to 1985 it was the police who made the decision to prosecute. Since the Prosecution of Offences Act 1985 it is now the CPS who makes that decision. The police investigate and interview witnesses and will then pass the file onto the CPS. They then have three choices:

  1. Drop the case

  2. Agree with the initial charge recommended by the police

  3. Decide to prosecute on another charge.

The CPS uses two tests when reviewing a case:

  1. The Evidential test – is there sufficient evidence to provide a realistic prospect of conviction in the case.

  2. The Public interest test – is it in the public interest to continue with the case – this can be quite controversial.

MAGISTRATES COURT

The Magistrates court deals with summary and triable either way offences. It also has some civil jurisdiction.

Summary offences

The defendant would be summoned to court. They may plead guilty by post, which will result in the case being decided in their absence. If they plead not guilty then the case will go forward for a trial in the Magistrates court.

Either way offences

A plea before venue hearing is held first and then if the defendant pleads not guilty then a mode of trial hearing takes place. At this hearing both the prosecution and defence lawyers make representations as to which mode of trial should be adopted. Legal advice may be needed to decide choice of trial and the defendant is entitled to a summary of the prosecution evidence before choosing which court to be tried in.


Not guilty plea

by

defendant

Magistrates Court

trial

Crown Court

trial by

jury

Magistrates have sufficient

sentencing powers

Insufficient sentencing powers in magistrates court

Defendant can choose mode of trial

Case referred to Crown Court



Indictable offences

Indictable offences are transferred to the Crown Court immediately from the first hearing, as the magistrates have no jurisdiction over them. However, they will either grant bail or remand in custody as appropriate.

CROWN COURT

The first hearing at the Crown Court is the plea and case management hearing (PCMH). The judge has a managerial role in the case and will check that there is sufficient information to set a trial date. At this hearing the defendant will enter a plea. If he/she pleads guilty then sentencing can occur immediately or sentencing reports may be requested. If the defendant pleads not guilty then the prosecution and defence must disclose all relevant information such as:

  • Number of witnesses

  • Exhibits

  • Documents to be used by the prosecution

  • Points of law

  • Estimated length of trial and availability of witnesses and counsel

The defendant may use the PCMH hearing to obtain an indication from the judge of likely sentence. This can help the defendant to decide whether to change their plea, taking advantage of a reduction in sentence for an early plea to guilty. This will be their first opportunity to do this as this is not available in the Magistrates Court. The trial date will usually be set at the end of the hearing.

BAIL

Under the Bail Act 1976 there is a general right to bail. Bail can be granted by the courts or the police. Police bail can be given at a police station or under the Criminal Justice Act 2003, where police officers can grant bail following arrest at locations other than at a police station, a process known as “street bail”. Court bail is dealt with through the Magistrates’ Court.

Where bail is granted, the person is released from custody until the next date when they must attend court or the police station, as stated on the bail notice.

Under the Bail Act 1976 there is a general presumption that bail will be granted. However, bail will not be granted where there are substantial grounds to believe:

  • The defendant will fail to attend court

  • Interfere with witnesses

  • Commit an offence

  • Interfere with the course of justice

  • The defendant needs to be kept in custody for their own protection

When making a decision about bail the court will take into account the:

  • nature and seriousness of the charges

  • probable sentence

  • character of defendant

  • drug misuse (under Criminal Justice and Court Services Act 2000)

The presumption in favour of bail is reversed where someone is charged with a further indictable offence which appears to have been committed whilst on bail.

There are two types of bail:

  1. Conditional bail – The Police and Courts can impose any requirements that are necessary to make sure that defendants attend court and do not commit offences or interfere with witnesses whilst on bail. E.g. surrender of passport, surety, reporting to police station, staying away from certain people and places, curfew etc.

  2. Unconditional bail – If the Police or Court believe that the defendant is unlikely to commit further offences, will attend court when required and will not interfere with the justice process, the defendant will usually be released on unconditional bail.

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