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An introduction to English sentencing
1.1 Courts and crimes
Although some common law crimes remain, most of the offences in English criminal law were created by statute and have a statutory maximum penalty. For the purposes of trial, offences were divided into three categories by the Criminal Law Act 1977 - offences triable only on indictment, offences triable only summarily, and offences triable either way. The most serious offences (e.g. murder, rape) are triable only on indictment, at the Crown Court. A large mass of less serious offences is triable only summarily, in magistrates' courts. The middle category of offences triable either way comprises most burglaries, thefts and deceptions. The first question in these cases concerns the defendant's intended plea: if the defendant indicates a plea of guilty, the magistrates must assume jurisdiction and proceed to sentence, unless they decide that their sentencing powers are insufficient. If the intended plea is not guilty, the defendant will be tried at a magistrates' court unless either the magistrates direct or the defendant elects that the case be tried at the Crown Court.
The Crown Court sits with a judge and jury. There are three levels of Crown Court centre: first-tier centres, where both civil and criminal cases are tried and where High Court judges and circuit judges preside; second-tier centres, where High Court judges or circuit judges preside but only deal with criminal cases; and third-tier centres, where circuit judges or recorders deal with criminal cases, being mostly offences triable either way. The types of criminal offence are divided into four classes, according to their gravity, and some can only be tried by a High Court judge, whereas others can be tried by circuit judges or recorders. In total, there are over 1,000 Crown Court sentencers. Circuit judges are full-time judges, although they may divide their time between civil and criminal work. Recorders and assistant recorders are part-time judges, whose main occupations are barristers, solicitors or (in a few instances) academics; most full-time judges start their judicial careers in this way. Appeals against sentence from the Crown Court go to the Court of Appeal and, if there is no point of law involved, the appeal requires the court's leave if it is to be heard. Applications for leave are dealt with by individual High Court judges.
Magistrates' courts deal with the least serious criminal offences. There are around 30,000 lay magistrates in England and Wales, divided into local benches, and a court normally consists of three magistrates. There are also full-time and part-time District Judges (Magistrates' Courts) (DJMC), formerly known as stipendiary magistrates, whose numbers have grown in recent years to over 200. A DJMC must be a barrister or solicitor of at least ten years' standing, and he or she sits alone - usually dealing with the longer or more complicated summary cases. The powers of magistrates' courts are limited to imposing a maximum of six months' imprisonment in respect of one offence (or a total of 12 months for two or more offences); these maxima are to be raised, when s. 154 of the Criminal Justice Act 2003 is brought into force, to 12 months for a single offence and 65 weeks for two or more offences. The maximum fine or compensation order that may be imposed by a magistrates' court is usually £5,000. Magistrates may, having heard the evidence in a case, commit it to the Crown Court for sentence, if they form the view that the offence was so serious that greater punishment should be inflicted than they have power to impose. As mentioned above, a defendant who indicates an intention to plead guilty to an either-way offence should be sentenced by the magistrates unless they decide that their powers are insufficient, in which case they should commit to the Crown Court for sentence. A person who has been sentenced in a magistrates' court may appeal against sentence to the Crown Court. The appeal takes the form of a complete rehearing of the case, before a circuit judge or recorder and two lay magistrates, and the Crown Court has the power to pass any sentence which the magistrates' court could have imposed, even if that sentence is more severe than the one they did in fact impose.1
Summary offences are little discussed in this book, although there are frequent references to sentencing in magistrates' courts (which also deal with many 'triable-either-way' offences). Most of the statistics quoted in part 3 of this chapter refer to 'indictable offences', which include those triable on indictment and those 'triable-either-way', whether tried in a magistrates' court or at the Crown Court.
1.2 The available sentences
Recent years have seen several major statutes bringing change to the sentencing structure, and three of them are particularly important for present purposes. The first is the Criminal Justice Act 1991, which was the first major attempt for over 40 years to establish a coherent sentencing structure. After a series of further statutes in the 1990s, Parliament consolidated sentencing law in the Powers of Criminal Courts (Sentencing) (PCCS) Act 2000. This consolidation was a wonderful idea, since it promised the great convenience of bringing the various powers together in one place. Sadly, the statute had already been overtaken by new provisions by the time it came into force, and after three years large parts of it were replaced by the now principal statute, the Criminal Justice Act 2003.
This part of the chapter gives a preliminary sketch of the courts' sentencing powers, referring also to the different sentences available in relation to young adult offenders (aged 18-21) and to juveniles. Most of these sentencing powers are discussed in detail in later chapters, and in part 4 of this chapter we examine the reasons why only a small proportion of the crimes committed in any one year result in an offender being sentenced in court.
1.2.1 Sentences for adult offenders
A court's duty in all cases involving injury, death, loss or damage is to consider making a compensation order in favour of the victim or, in a case of death, the victim's family. This forms part of a policy of increasing recognition of the needs, wishes and rights of the victims of crime. A court has a duty to give reasons for not making an order in a case where it has the power to do so. The provisions governing compensation orders are to be found in ss. 130-134 of the PCCS Act 2000. One important restriction is that the court should take account of the means of the offender when deciding whether to make an order and, if so deciding, for what amount. The consequence is that some victims whose offenders are impecunious will receive nothing from this source, and that victims in cases where an order is made may receive compensation for only part of their loss.2 In 2002, over half of offenders convicted at magistrates' courts of indictable offences of criminal damage were ordered to pay compensation; as for those convicted of offences of violence, 33 per cent in the magistrates' courts and 17 per cent in the Crown Court were subjected to compensation orders. A compensation order will usually be made as well as another order, but it may be made as the sole order against an offender.
The most lenient course which an English court can take after conviction is to order an absolute discharge. The power is governed by s. 12 and Schedule 1 of the PCCS Act 2000. A conviction followed by an absolute discharge does not count as such for most future purposes. Formally, the court must be satisfied that it is 'inexpedient to inflict punishment'. In practice, the power is used in fewer than 1 per cent of cases, and is generally reserved for instances where there is very little moral guilt in the offence.
The power to grant a conditional discharge is also to be found in ss. 12-15 and Schedule 1 of the PCCS Act 2000, and once again the conviction does not count as such for most future purposes. The condition is that the offender must commit no offence within a period, of not more than three years, specified by the court. If the offender is convicted of an offence committed during that period, then he or she is liable to be sentenced for the original offence as well. Thus, the conditional discharge carries a threat of future punishment, as does also the power to 'bind over' an offender to keep the peace and to be of good behaviour - in effect, a kind of suspended fine which some courts tend to use more frequently than others.3 Conditional discharges continue to be used in substantial numbers of cases: of adult indictable offenders dealt with in 2002, some 14 per cent of males and 24 per cent of females received a discharge from the court, and almost all of these would be conditional discharges.
The fine remains the most used penal measure in English courts, largely because of its widespread use for summary offences. Its proportionate use for indictable offences has declined, to some 26 per cent of adult male indictable offences in 2002. Maximum fines are usually unlimited for indictable offences tried in the Crown Court, but in magistrates' courts the maximum fines have been banded in five levels. The leading principle (in s. 164 of the Criminal Justice Act 2003) is that the fine should reflect the seriousness of the offence and the offender's ability to pay; and a court should give priority to a compensation order over a fine where the offender has limited financial resources and appears unable to pay both. The use of imprisonment for non-payment of fines has declined in the last decade, as alternatives such as community service have been introduced, but some offenders are still committed to prison for non-payment, even though the original offence was not thought to merit custody.
The community sentence has been changed in major ways by the Criminal Justice Act 2003. In place of the plethora of different sentences hitherto available (e.g. community punishment, curfew orders, drug treatment and testing orders, and so forth), the Act introduces a new generic community sentence - the idea being that this will bring to courts both flexibility and (if they follow the guidelines) consistency. Section 148 of the 2003 Act states that a court must not pass a community sentence unless satisfied that the seriousness of the offence(s) is sufficient to warrant such a sentence. Having reached this decision, the court must then select the requirement(s) which (i) are most suitable for the offender and (ii) impose restrictions on the offender which are commensurate with the seriousness of the offence. The list of requirements largely corresponds to the separate orders available previously, and is as follows (for offenders aged 18 or over).
(a) an unpaid work requirement
(b) an activity requirement
(c) a programme requirement
(d) a prohibited activity requirement
(e) a curfew requirement
(f) an exclusion requirement
(g) a residence requirement
(h) a mental health treatment requirement
(i) a drug rehabilitation requirement
(j) an alcohol treatment requirement
(k) a supervision requirement
(l) an attendance centre requirement (only for those aged 16-25)
Further discussion of the new order in Chapter 10 below will examine the prospects for greater consistency in the application of community sentences and for greater effectiveness in reducing reoffending.
Next in ascending order of severity is imprisonment. Before imposing a custodial sentence, the court must be satisfied, according to s. 152(2), that the offence was 'so serious that neither a fine nor a community sentence can be justified', a formula that requires the court to dismiss all lesser alternatives before resorting to custody. If it decides on custody, s. 153(2) states that the sentence should be for the shortest term 'commensurate with the seriousness of the offence'. In determining the length of any custodial sentence, courts are bound to apply any relevant guidelines, and to take due account of aggravating and mitigating factors (see Chapter 5), and of previous convictions (see Chapter 6).
When the court has decided that a sentence of imprisonment is justified and has decided on its length, it may still have the choice between a suspended sentence, intermittent custody and immediate prison. This applies where the court is minded to impose a sentence of less than one year. If it decides that there are grounds for suspending, it may suspend any sentence of between 28 and 51 weeks for a period of up to two years (s. 189 of the 2003 Act), during which time it may order the offender to comply with one or more requirements taken from the list available for community sentences (above). Non-compliance may result in return to court and the activation of the whole or part of the prison sentence. Alternatively, the court may take the view that intermittent custody is more appropriate, the period of between 28 and 51 weeks being converted into between 14 and 90 custodial days plus release on licence in the intermediate periods - see s. 183 of the 2003 Act. If the court believes that neither a suspended sentence nor intermittent custody is appropriate in the circumstances, and that a custodial term of under 12 months is proper, it will be able to impose a term of 'custody plus' in accordance with ss. 181-182 of the 2003 Act, when this is brought into force (probably autumn 2006). Until then, ordinary sentences of imprisonment remain available. The new form of sentence is designed to ensure that the use of imprisonment in this range includes a short period in prison followed by supervised release. There must first be a custodial period, of between 2 and 13 weeks as specified by the court; then there must be a period under supervision of at least 26 weeks, for which the court may impose one or more requirements from a list of eight of those available for community sentences. It remains to be seen what effects this new framework for custodial sentences under 12 months will have - on sentencing practice, on reducing reoffending, and on the prison population.
Standing in contrast to the general injunction to courts to impose the shortest proportionate custodial term (in s. 153(2)) are a small number of other provisions, usually justified on public protection grounds. Section 287 introduces a minimum sentence of five years' imprisonment for various offences of possessing firearms. This joins the minimum sentence of seven years for the third offence of trafficking class A drugs (s. 110 of the PCCS Act 2000) and three years for the third domestic burglary (s. 111 of the PCCS Act 2000). The 2003 Act also provides for severer forms of custodial sentence for dangerous offenders who are thought to present a significant risk of serious harm to members of the public. These sentences include life imprisonment, indefinite custody for public protection or (for those convicted of violent or sexual offences with maximum sentences between 2 and 10 years) extended sentences (see Chapter 6).
Both the use of custodial sentences and their average length have increased significantly in recent years: by 2002, some 30 per cent of male indictable offenders aged 21 or over and some 17 per cent of females received immediate imprisonment, compared with 18 per cent and 6 per cent respectively in 1992. The actual meaning of custodial sentences depends on the operation of the system of early release under the Criminal Justice Act 2003. In broad terms, all prisoners are released after serving half their sentence, but are then on licence and subject to recall at any time until the expiry of the full sentence. For some offenders serving four years or longer this means release at an earlier point than before; but for all prisoners serving 12 months or longer the impact of the sentence endures longer, since the licence conditions remain in force until the end of the nominal sentence (and not until the three-quarters point, as before). For those serving extended sentences the system is slightly different, in that they are not entitled to release after serving half their sentence; release thereafter is at the discretion of the Parole Board.4
It will be evident that the sentences available under the 2003 Act are, broadly, graduated in terms of severity. The least onerous are absolute and conditional discharges; on the next level are fines (which may occasionally rise almost to the level of custody); slightly higher and partly overlapping with fines is the community sentence, only to be imposed if the offence is 'serious enough'; and at the highest level come custodial sentences, usually requiring the court to be satisfied that neither a fine nor a community sentence could be justified and that imprisonment was therefore required.
There is a whole list of ancillary and/or preventive orders which may be made by the courts in appropriate cases. These range from orders for deportation, restitution orders, and disqualification from driving, to the more recent flush of preventive orders - notably, anti-social behaviour orders (ASBOs), exclusion from premises, exclusion from football grounds, and so on. In some circumstances the court is bound, or almost bound, to make an order - such as disqualification from working with children. In other cases, such as drug trafficking, a court is bound to follow the statutory procedure towards making an order for the confiscation of the offender's assets under the Proceeds of Crime Act 2002. Many of these ancillary orders are discussed in Chapter 11.
1.2.2 Sentences for young offenders
Sentencing powers regarding offenders aged under 21 fall broadly into two groups - first, offenders aged 18, 19 or 20, who are termed 'young adults' and dealt with in adult courts; and then offenders aged 10-17 inclusive, who are dealt with chiefly in the youth court.
The structure of sentencing for young adults is largely the same as that for adults, although young adults sent to custody have usually been placed in different establishments from adult prisoners. Otherwise, sentencing powers are fairly similar to those for adults, except that the attendance centre order is available only for those aged up to 25, as noted above. Attendance centres operate on Saturday afternoons and require offenders to participate in demanding (and usually physical) activities. The maximum order is 36 hours.
For young defendants under 18 both the procedure and the sentencing powers differ considerably. Their cases are dealt with in youth courts, except when there is a charge of a particularly grave crime. Very young children charged with murder, manslaughter and some other serious offences are tried in the Crown Court. However, where the defendants are as young as 11 or 12, special efforts must be made to ensure that the defendants can follow and participate in the trial: a Practice Direction on the appropriate procedures for such cases was issued in 2000,5 but a recent decision of the European Court of Human Rights indicates that further changes of procedure will need to be made.6
However, cases of that kind are few. In practice, as we shall see in part 1.4 below, most offenders of this age are dealt with by a reprimand or final warning under the Crime and Disorder Act 1998, described more fully in Chapter 12. Section 37 of the 1998 Act declares that 'the principal aim of the youth justice system [is] to prevent offending by children and young persons', but this benevolent aim must be read in the light of the custody rate for young offenders - in 2002, 13 per cent for boys and 7 per cent for girls. For those who are prosecuted in court for the first time and plead guilty, the court is under a statutory duty to make a referral order under s. 16 of the PCCS Act 2000. The consequence of the referral order, described more fully in Chapter , part , is the drawing up of a 'youth offender contract' requiring certain commitments. In other cases the youth court has the same range of powers as do the ordinary courts when dealing with young adults, with two noticeable exceptions. The first is that when a youth court is dealing with a child under 16, it must require the attendance of the child's parents unless this would be unreasonable, and it must bind over the parents to exercise control over the child unless it give reasons for not doing so. The second difference concerns custodial sentences, which have been relatively rare for young offenders. Details of the law are given in Chapter , but essentially a 'detention and training order' may only be made in certain standard lengths, as consolidated in ss. 100-107 of the PCCS Act 2000 (i.e. 4, 6, 8, 10, 12, 18 or 24 months, and not intermediate lengths).
1.3 The general statistical background
Some 5.9 million 'notifiable offences' (excluding minor crimes) were recorded by the police in 2003, showing a slight rise from 2002 to set against the overall decline in the volume of crime as measured by the British Crime Survey - down to 11.7 million crimes against households and individuals in 2003, compared with 12.3 million in 2002. Table 1.1 shows how the volume of crime as measured by the British Crime Survey was considerably higher in 1991 than it is in the early years of the twenty-first century, whereas the number of crimes recorded by the police has continued to grow steadily since 1991, although the major acceleration in the recorded crime rate came in the preceding decades. These differences between recorded crimes and the crime rate estimated by the British Crime Survey are discussed in section 1.4 below.
Table 1.1 also shows that the detection rate - proportion of recorded offences 'cleared up' by the police - declined substantially in the 1970s and 1980s, and in recent years has been hovering around 23 per cent, approximately half the rate of 1961. This does not imply that in all these cases a conviction was obtained or a formal caution administered, for the 'detected' category also includes offences traced to children under 10, cases where the victim is unable to give evidence, and offences 'taken into consideration' on other charges. The detection rate has always varied from offence to offence, however. Over three-quarters of offences of violence and sexual offences are usually cleared up, largely because the victim can usually identify the offender, who was often known to him or her anyway. In contrast, the proportion of burglaries and robberies cleared up remains at less than one-quarter.
Table 1.1 shows that, of the 1.4 million non-minor offences cleared up in 2003, some 486,000 resulted in either a finding of guilt for an indictable offence or a police caution for an indictable offence. The figure includes some 151,000 formal cautions, of which the majority were reprimands or warnings administered to offenders under 18. Some 335,000 persons were found guilty of indictable offences by the courts in 2003, and it may seem strange that so many fewer people were convicted in 2003 than in 1981, when the figure was 465,000 (see Table 1.1). One reason why this statistic appears strange is the wide disparity in the numbers of crimes recorded in the two years - 2.8 million in 1981, compared with 5.9 million in 2003. The explanation is to be found in a combination of factors - the decline in the detection rate from
Table 1. Summary of criminal justice statistics, 1951, 1961, 1971, 1981, 1991, and 2001-2003
|England and Wales|
|2002-2003 (% change)|
|Crime measured by British Crime Survey||(1)||(1)||(1)||11,046||15,125||13,037||12,308||11,716||-5|
|- offences recorded by the police(2)||525||807||1,666(3)||2,794||5,075||5,525||5,899||5,935||+1|
|- offences detected||247||361||775(3)||1,056||1,479||1,291||1,389||1,394||-|
|- detection rate (percentage)||47||45||38||29||23||24||23|
|Number of offenders cautioned(4)||(6)||70||109||154||279||230||225||242||+7|
|of which Indictable offences(5)||(6)||25||77||104||180||144||143||151||+5|
|Defendants proceeded against at magistrates' courts||736||1,161||1,796||2,294||1,985||1,838||1,925||2,001||+4|
|of which Indicatable offences(5)||122||159||374||523||510||501||517||509||-2|
|Defendants found guilty at magistrates' courts||705||1,121||1,648||2,042||1,438||1,293||1,362||1,432||+5|
|of which Indictable offences(5)||115||151||282||402||269||270||281||278||-1|
|Defendants sentenced at the Crown Court after summary convictions||3||4||14||14||7||16||17||16||-1|
|Defendants tried at the Crown Court||20||34||48||79||100||77||76||80||+4|
|Defendants found guilty at the Crown Court||18||31||40||63||81||56||60||60||-|
|Total offenders founds guilty at both courts||723||1,152||1,688||2,105||1,519||1,350||1,421||1,491||+5|
|of which Indictable offences(5)||133||182||342||465||347||324||338||335||-1|
|Total offenders found guilty or cautioned(4)||723(6)||1,222||1,797||2,259||1,796||1,580||1,647||1,733||+5|
|of which Indictable offences(5)||133(6)||207||419||568||527||468||481||486||+1|
(1)The British Crime Survey did not commence until 1982, where interviews were based on the previous year’s experience of crime.
(2)Excluding other criminal damage of value £20 and under. Includes estimates for criminal damage over £20 for Merseyside and Metropolitan Police. Figures were affected by the new counting rules from 1998 onwards and by the NCRS from 2001/02 onwards.
(3)Adjusted to take account to the Criminal Damage Act 1971.
(4)Cautions, written warnings and all fixed penalties for summary motoring offences are not covered in this volume but are published in the Home Office Statistical Bulletin ‘Motoring offences and breath tests’.
(5)Indictable offences include those triable either way.
(6)Cautions figures were not collected until 1954.
(7)Both British Crime Survey data and notifiable offences data are for the financial years, ie 2001/02, 2002/03 and 2003/04.
Source: Criminal Statistics 2003, Table 1.1.
Table 2. Flows through the criminal justice system, 2003
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(1)Covers crimes against households and individuals, reported in the 2003/04 British Crime Survey interviews, that were not necessarily reported to the police. This set of offences is not strictly comparable to recorded crime.
(2)Covers all indictable, including triable either way, offences plus a few closely associated summary offences.
(3)In the financial year 2003/04.
(4)Adjusted for shortfalls of data.
Source: Criminal Statistics 2003 Table 1.1.
38 per cent in 1981 to 23 per cent in 2003, the increase in the use of police cautions (up from 104,000 to 151,000), and perhaps the increased discontinuance rate of prosecutions. Table 1.2 shows the progress of recorded offences through the criminal justice system, and will be discussed in part 1.4 below.
|1||An introduction to English sentencing||1|
|2||Sentencing and the constitution||50|
|3||Sentencing aims, principles and policies||67|
|4||Elements of proportionality||102|
|5||Aggravation and mitigation||151|
|6||Persistence, prevention and prediction||182|
|7||Equality before the law||219|
|11||Procedural issues and ancillary orders||332|
|12||Special sentencing powers||359|