Sentencing in England and Wales refers to a bench of magistrates or district judge in a magistrate's court or a judge in the Crown Court passing sentence on a person found guilty of a criminal offence. In deciding the sentence, the court will take into account a number of factors: the type of offence and how serious it is, the timing of any plea of guilty, the defendant's character and antecedents, including their criminal record and the defendant's personal circumstances such as their financial circumstances in the case of a fine being imposed.
In England and Wales, the types of sentence that may be imposed for a particular offence are specified by statute. There are four main types of sentence: discharges, fines, community sentences and custodial (or prison) sentences. If a court convicts a defendant but decides not to impose any punishment, they are discharged conditionally or absolutely. Discharges may be ordered for any offence where the penalty is not fixed by law, although in practice they are used in the least serious offences. Fines are the most common sentence.
For offences considered to be "serious enough", a range of community sentences is available to the court. Community sentences place 'requirements' on the offender - things they must do, or not do, in the community. Requirements can include: doing unpaid work, getting treatment for an addiction (for example drugs), or preventing a defendant from going to a specific place or area. For those offences considered so serious that a non-custodial sentence cannot be justified, a prison sentence may be imposed, either immediate or suspended. The maximum prison sentence in the magistrates' court is six months (which may be imposed consecutively up to 12 months for two triable either-way offences). There is also a range of ancillary sentences available to the courts, such as compensation orders, costs, restraining orders and disqualification orders, depending on the type of offence.
For the most serious offences such as murder, the sentence is fixed as life. Some offences carry minimum sentences, for example, certain firearms offences, "three strikes and you're out" burglaries, using someone to mind a weapon, or those committed by dangerous offenders. There are different sentencing provisions for offenders aged ten to seventeen years old, and some modified provisions for those in the 18-20 age range.
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Role of the courts.
If a person pleads guilty, or is found guilty of an offence after a trial, the court is required to decide what sentence should be imposed on the offender. Magistrates and judges have a wide range of sentences available to them, however they are subject to certain restrictions. Magistrates' powers are restricted to a maximum custodial sentence of six months for one offence or 12 months for two triable either-way offences (i.e. those offences that can be heard at either the magistrates' court or the Crown Court). The maximum fine the magistrates' court can impose is £5,000. The Criminal Justice Act 2003 has provisions to increase these maximum penalties. Judges in the Crown Court can impose life sentences and there is no upper limit on the fine that may be imposed for particular offences.
The type and maximum level of sentence for each offence is fixed by Parliament in statutes known as Acts of Parliament. For example, the crime of theft has a fixed maximum of seven years imprisonment. Some offences have a maximum of life imprisonment: these include manslaughter and rape. In such cases, the judge has complete discretion when sentencing: the offender may be sent to prison or receive a shorter term, or a non-custodial sentence may passed. The only exception is murder which carries a mandatory life sentence.
Sentencing Act 2020.
Overview.
The main statute on sentencing is the Sentencing Act 2020, which consolidated previous sentencing laws into one single Sentencing Code following a Law Commission report led by David Ormerod.
The Act sets out a number of factors that the court must take into account when passing sentence, the weight to be attached to each factor in a case is a matter for the sentencer. By specifying maximum sentences for particular offences, Parliament indicates its view of the seriousness of the offence. The Sentencing Council helps to refine this process by providing guidance, including sentencing guidelines which suggests a sentencing level in each case. The sentencer is required to consider the guidelines and, if they decide to impose a different type of sentence, to give their reasons for doing so.
Aims of sentencing.
Section 57 of the Sentencing Act (previously s147 of the Criminal Justice Act 2003) sets out five purposes of sentencing, to which any court dealing with an offender must have regard:
This is not intended to be a hierarchical order. The Sentencing Council has stated that the statutory aims set out in statute does "not indicate that any one purpose should be treated as more or less important than another. In an individual case, any or all of the purposes may be relevant to a certain degree and it will be for the judge or magistrate to decide how they apply". The Lord Chief Justice has said, “It is no purpose of sentencing to exact vengeance on an offender.”
These considerations do not apply to fixed sentences, minimum sentences or certain orders imposed under the Mental Health Act 1983.
The sentencing process.
The court is required to make two principal decisions: the type of sentence and its length (or, in the case of a fine, the amount).
The court will first consider the following factors:
The seriousness of the offence.
To determine the sentence under the relevant sentencing guidelines, the court will consider details of each offence in order to assess its seriousness. This involves assessing the aggravating and mitigating features of the offence. Courts can take into account any fact considered relevant as aggravating or mitigating, and many are set out in sentencing guidelines.
The Sentencing Act sets out a number of statutory aggravating factors including:
The Sentencing Act also provides a statutory mitigating factor to reduce the sentence when a defendant pleads guilty or provides assistance to the prosecution.
This information may reveal underlying issues, such as a drug problem. In motoring cases, previous endorsements on the driving record can have consequences, such as a period of disqualification under the "totting-up" rules.
The defendant’s circumstances.
The court will need to consider the defendant’s character, previous convictions (most relevant will be those for similar offences) and any personal mitigation, as expressed by the defendant’s advocate or (if unrepresented) by the defendant in person. An early guilty plea will go towards reducing the sentence—this can result in a discount in up to a third of the sentence, depending when the plea is entered.
Other relevant personal circumstances may be considered. Their financial circumstances will be highly relevant when a fine, costs or compensation is considered because the court has a duty under section 124 of the Sentencing Act to take these into account when fixing the overall amount.
Pre-sentence reports.
In the event of the court considering either a community or a custodial sentence, the court can order that a pre-sentence report is prepared to assist with sentencing. Pre-sentence reports provide the court with additional information about the defendant and their circumstances, the risk of re-offending and any personal issues likely to affect the sentencing, e.g. a drug addiction. A psychiatric report may be ordered in appropriate cases. Short reports can be prepared on the day, otherwise the usual time for obtaining a pre-sentence report is three weeks.
Passing sentence.
After taking into account all the relevant information, and fixing the sentence accordingly, the court will announce the sentence in open court, addressing the defendant directly and giving reasons for the decisions. Since 2022, sentencing remarks in some Crown Court trials have been broadcast or published in video form. Ancillary orders such as costs and disqualification will also be announced at this time.
Appeals.
If a court makes a mistake regarding sentencing, it is possible to correct these through the operation of the "slip rule". In the magistrates' court, this is contained in section 142 of the [[Magistrates' Courts Act 1980]; the equivalent power in the Crown Court is section 385 of the Sentencing Act 2020, and can only be exercised within 56 days of sentencing, and must be done by the same judge who passed sentence.
There is a right to appeal from a magistrates' court to the Crown Court, exercisable within 21 days. If a defendant pleaded not guilty, they can appeal against conviction or sentence; if they pleaded guilty, they can only appeal against sentence. This is the normal route for appeals against sentence, but it is also possible to appeal sentence by way of [[case stated]] or (in somewhat exceptional circumstances) [[Judicial review in English law|judicial review]].
Following a Crown Court trial, the only route to appeal a sentence is to the [[Court of Appeal (England and Wales)|Court of Appeal]] under section 9 of the [[Criminal Appeal Act 1968]].
Defendants who have received custodial sentences following a trial may apply for bail while an appeal is pending, but the decision to grant bail is entirely within the discretion of the court.
Sentencing guidelines.
Background.
The sentencing guidelines issued by the Sentencing Council are at the heart of the courts' decision-making in sentencing. The development of these guidelines has been incremental, with the [[Magistrates' Association]] issuing their own guidelines and the Court of Appeal issuing guideline judgments in particular cases. Following the Crime and Disorder Act 1998, a Sentencing Advisory Panel was established to assist the courts in issuing sentencing guidelines. In 2003, this was supplemented by the Sentencing Guidelines Council comprising a majority of judicial members, which is now known as the Sentencing Council.
Sentencing Council.
Created by the [[Coroners and Justice Act 2009]], the Sentencing Council is an independent body which promotes consistent approaches to sentencing by issuing guidelines, analysing the impact of those guidelines on sentencing practice and to improve the confidence of the public by publishing information and promoting awareness of sentencing. The council produces an annual report.
Powers of the courts.
[[File:Oldbaileylondon-900.jpg|alt=Exterior of court building with statue of Lady Justice on top|thumb|The Old Bailey or Central Criminal Court in London.]]
The courts have a menu of sentences to choose from. number of different types of sentences available to them. In descending order of severity, the sentences are: custodial sentences, community sentences, fines and discharges. The courts can also make ancillary orders such as costs, compensation orders, and driving disqualifications for road traffic offences.
Custodial sentences for adults (18 years and over).
Custodial sentences range from a minimum of five days to life imprisonment. They include:
Section 230 of the [[Sentencing Act 2020]] states that the 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". The court must always state the reason for imposing a custodial sentence.
Other preconditions of a custodial sentence are that a pre-sentence report has been obtained (in most cases), and the defendant is legally represented or has been offered the opportunity to be represented and has refused.
For offenders aged between 18 and 20 years, the sentence is served in a Young Offenders Institution (YOI). For those aged 21 years and over, the sentence is served in a prison.
Mandatory life sentences.
Although murder carries a mandatory life sentence, it rarely means that the offender will spend the rest of their natural life in prison. A "minimum term" is usually set by the judge to indicate the period the offender must serve in custody before being released on licence. The relevant provisions are contained in Schedule 21 of the Sentencing Act 2020. It gives judges a starting point for the minimum period to be considered, ranging from a 12 years to a whole life order. The circumstances in which a whole life order should be imposed on an offender aged 21 years or over at the time of the offence are described in Schedule 21 as follows:
The Court of Appeal has noted that whole life orders are "a sentence of last resort for cases of the most extreme gravity", and cases where it is to be applied "must be exceptionally serious, even in the context of murder". The imposition of whole life orders has been held to be compatible with [[Article 3 of the European Convention on Human Rights]].
Another starting point is 30 years, which applies to offenders aged 18