HOW SENTENCING WORKS 

YOUR GUIDE TO SENTENCING IN THE MAGISTRATES' COURT AND CROWN COURT

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The question, ‘Will I go to prison?’ is at the forefront of many people’s thoughts when they are faced with a criminal charge. Understandably it is a question many criminal barristers will be asked by their clients.

This guide will help you understand how sentencing works and how judges decide what sentence to pass for particular offences in a variety of different circumstances.  

If you are looking for information on a particular aspect of sentencing, just click on what interests you in the contents column on the right >>>>

Otherwise read on for an introduction to the sentencing process.

Unless otherwise specified, what follows relates to adult defendants (18s and over). You can read more here about youth sentencing (under 18s).

AVOIDING SENTENCING CONFUSION

Before we start, let’s get some fundamental matters out of the way which are often the cause of some misunderstanding:

1.  A sentence can only be passed once the person accused of the offence (the defendant) has been found guilty of it; this can happen either by pleading guilty at court (or by post in some less serious cases), or by being found guilty following a trial. Until you have been found guilty you cannot be sentenced and if you are found not guilty (acquitted) following a trial you will face no penalty at all because the case against you will not have been proved.  Occasionally some orders can be made against acquitted defendants (such as bind overs and restraining orders) but these do not include punishments such as custodial sentences or community orders.

2. Some offences do not carry imprisonment as a potential sentence at all. Many offences of a relatively minor nature are not punishable with imprisonment. These include many motoring offences. For example, the maximum penalty for the offence of driving without due care and attention is endorsement of 3-9 penalty points, a fine and discretionary disqualification from driving, but not imprisonment.  Similarly, the offence of speeding is non-imprisonable. 

3. Even where an offence does carry a potential sentence of imprisonment, this does not mean that prison will automatically follow; it means that imprisonment is an option for the court. For example, the offence of theft is an imprisonable offence, but not every person convicted of theft will go to prison. Prison is reserved for situations where the offence is so serious that only a custodial sentence can be justified.  The court always has a range of alternative options available to it, which include fines and community orders. Custodial sentences will only be imposed for serious cases and, even then, they can sometimes be suspended. 

4. It will be rare for a court ever to impose the maximum term of imprisonment that is available for a particular offence. Even when a court decides to impose a period of imprisonment, the circumstances of the offence and of the defendant are taken into account in determining what the length of that sentence should be. For most offences this involves looking at the relevant sentencing guidelines (which you can read more about in this sentencing guide).

5. Only defendants aged 21 or over can go to ‘prison’. Defendants aged 18 to 20 who receive custodial sentences are sent to a Young Offender Institution. On the rare occasion that juveniles (under 18s) receive custodial sentences they are sent to either a Young Offender Institution or more usually a Secure Children’s Home or Secure Training Centre

WHAT IS SENTENCING?

Once a defendant has pleaded guilty or been found guilty, sentencing is the process by which the court decides what punishment to impose for the offence.

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