HOW SENTENCING WORKS
YOUR GUIDE TO SENTENCING IN THE MAGISTRATES' COURT AND CROWN COURT
MORE SENTENCING pages:
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.
What are the purposes of sentencing?
For adults convicted of most offences, the statutory purposes of sentencing are set out in s.142 of the Criminal Justice Act 2003 as follows:
(b) the reduction of crime (including by deterrence);
(c) reform and rehabilitation;
(d) the protection of the public; and
(e) the making of reparation by offenders to persons affected by their offences.
What does the court take into account when sentencing?
There are 4 main factors the court will take into account when deciding what sentence to impose. These are:
1. THE OFFENCE
The offence – what is the maximum sentence for the offence the defendant faces? This includes whether the offence is imprisonable or non-imprisonable. Remember that just because an offence is imprisonable does not of itself mean that a custodial sentence will inevitably follow; the court has a range of alternative sentences available if it does not consider that custody is necessary.
2. A GUILTY PLEA
A guilty plea – did the defendant plead guilty and, if so, when? An early guilty plea can reduce a sentence by up to one-third.
3. THE CIRCUMSTANCES OF THE OFFENCE
"CONSIDERATION IS GIVEN TO THE AGGRAVATING CIRCUMSTANCES (THOSE WHICH MAKE THE OFFENCE MORE SERIOUS) AND THE MITIGATING CIRCUMSTANCES (THOSE WHICH TEND TO MAKE IT LESS SERIOUS) OF THE PARTICULAR OFFENCE"
The circumstances of the offence – the sentencing judge or magistrates must consider the level of culpability and harm. Consideration is given to the aggravating circumstances (those which make the offence more serious) and the mitigating circumstances (those which tend to make it less serious) of the particular offence?
Every case is different. Aggravating circumstances include where there has been a serious impact on the victim (including significant loss or injury), as well as conduct by the defendant (such as planning, use of a weapon, targeting a vulnerable victim or supplying drugs outside a school) which make the offence a serious one of its kind. An offence committed by a defendant who was already on bail is an aggravating factor, as is an offence involving racial or religious hostility, or hostility by reason of disability, sexual orientation or transgender identity.
Mitigating circumstances can include playing a minor role, limited loss or injury to the victim, acting on the spur-of-the-moment, unintended consequences and other conduct or circumstances which demonstrate the offence to be a less serious one of its kind.
4. THE CIRCUMSTANCES OF THE OFFENDER
The circumstances of the offender – these include the age of the defendant, whether he has any relevant previous convictions (i.e. a first-time offender or someone with a history of similar conduct) and any other personal circumstances (such as being the primary carer for children or elderly relatives, addiction or debt problems and how they are being dealt with, the defendant’s attitude to the offence itself) which can properly be taken into account.
In a number of cases a defendant will have seen a probation order before sentencing where the offence and the defendant’s circumstances will have been discussed between them. The probation officer will then produce a pre-sentence report (you can read more about these in this guide) for the court to assist in the sentencing process.
AT THE SENTENCING HEARING
WHAT WILL HAPPEN AT MY SENTENCE?
Where a defendant has been found guilty following a trial or has pleaded guilty to the offence, the defendant will be sentenced. Sentencing procedure in both the Magistrates’ Court and the Crown Court is very similar.
If a pre-sentence report has not already been prepared and the judge is considering imposing a custodial or a community sentence, there will be an adjournment of the case to allow such a report to be prepared unless the judge considers it unnecessary. You can read more about pre-sentence reports below.
If the defendant has pleaded guilty, sentence starts by the prosecution opening the case to the Magistrates or District Judge (in the Magistrates’ Court) or to the Judge (in the Crown Court) by summarising the case against the defendant.
Occasionally, even where the defendant accepts that he is guilty of the offence, he does not accept the prosecution version of events. In these cases there will have to be an agreed basis of plea or a hearing to determine precisely what parts of the prosecution case he accepts (for more see the section on Basis of Plea).
"THE PROSECUTION DO NOT REQUEST SPECIFIC SENTENCES FOR A DEFENDANT ... IT IS NO PART OF THE JOB OF THE PROSECUTION TO TELL THE JUDGE WHAT SENTENCE TO IMPOSE"
If the defendant has been found guilty following a trial the prosecution will not normally have to open the case because the Magistrates/Judge will already have heard the details. In the Crown Court a jury takes no part in the sentencing process.
The prosecution do not request specific sentences for a defendant. This means that it is no part of the job of the prosecution to tell the judge what sentence to impose, e.g that it should be a custodial sentence and, if so, for how long. However, it is part of the prosecution’s role to assist the court with any matters of law and this includes assistance with relevant sentencing guidelines, albeit the judge and not the prosecution make the final decision on their implementation.
VICTIM PERSONAL STATEMENTS, COMMUNITY IMPACT STATEMENTS & IMPACT STATEMENTS FOR BUSINESS
Opening the case can include reference to a Victim Personal Statement. Victims of crime can provide a statement setting out the effects on them (in homicide or other appropriate cases such a statement will be made by a close family member). This is sometimes read out in court by the victim/family member; more often parts of it are referred to in court by the prosecutor in the case opening.
In relevant cases there may be a Community Impact Statement prepared by the police to inform the court of the effects of particular crime trends in the local area and how this affects the local community. Similarly, where a business is the victim of crime a representative can make an Impact Statement for Business setting out the impact of the offence on the business.
PREVIOUS CONVICTIONS & ANCILLARY MATTERS
The prosecution will inform the court of any relevant previous convictions or cautions the defendant has. If the defendant wishes to have other offences taken into consideration (TICs) these will be brought to the attention of the court and the defendant will be asked if he would like them taken into consideration when sentence is passed. Finally, the prosecution will deal with ancillary matters such as applications for prosecution costs, compensation for the victim, confiscation and other orders in appropriate cases.
DEFENCE PLEA IN MITIGATION
"THE PLEA IN MITIGATION IS DESIGNED TO HIGHLIGHT THOSE FEATURES OF THE CASE AND ANY RELEVANT CIRCUMSTANCES OF THE DEFENDANT WHICH MIGHT PERMIT THE COURT TO TAKE THE MOST LENIENT COURSE AVAILABLE"
When the prosecutor has finished, the defence representative (or the defendant if he is not legally represented) stands up and makes a plea in mitigation, i.e. advances those matters which make the offence less serious, including any personal mitigating circumstances of the defendant.
Mitigating circumstances relating to the offence might include situations where the defendant played a minor role in the offence, or where the loss or injury to the victim is relatively minor, where the offence was committed on the spur-of-the-moment, or where the consequences of what occurred (such as injury) were unintended, as well as any other conduct or circumstances which demonstrate the offence to be a less serious one of its kind.
"... IT IS ONE OF THE MOST IMPORTANT ROLES OF A CRIMINAL DEFENCE LAWYER"
Mitigating circumstances relating to the offender might include the defendant's age, few or no previous convictions or cautions, responsibilities (such as being the sole or primary carer for children, disabled or elderly relatives) and addiction or debt problems where the defendant is taking active steps to deal with these problems.
The defence can also make submissions regarding the sentencing guidelines. Sometimes a case might fall on the boundary between offence categories in the guideline and it will be the job of the defence advocate to persuade the court why the case falls within the lower category.
In simple terms, the plea in mitigation is designed to highlight those features of the case and any relevant circumstances of the defendant which might permit the court to take the most lenient course available, e.g. to pass a community order rather than a custodial sentence or, where a custodial sentence is inevitable, to suspend it. It is one of the most important roles of a criminal defence lawyer. It is vital that a defendant facing a potential custodial sentence has legal representation.
After the plea in mitigation the Magistrates/Judge will either retire to consider sentence or proceed directly to sentence. Judges in the Crown Court rarely retire to consider sentence. The Judge/Magistrates will explain why they have decided on a particular sentence and pronounce what that sentence is. In complex cases this can take some time.
If it is an immediate custodial sentence the defendant will be taken from the dock into the court cells as soon as the sentence is passed. If the sentence is non-custodial (or a suspended sentence) the defendant will be allowed to leave the dock, unless he came directly from custody in which case a defendant will be returned to the cells for a short time in order that administrative matters can be dealt with to enable their release.
If the Magistrates/District Judge (in the Magistrates’ Court) or the Judge (in the Crown Court) are considering imposing a custodial sentence or a community order, a pre-sentence report must be obtained unless the Judge/Magistrates consider it unnecessary to do so.
Pre-sentence reports are written by probation officers from the National Probation Service. The defendant will often meet with a probation officer before sentence and they will discuss the offence and the defendant’s attitude towards it. Sometimes 'stand down' or 'on the day' pre-sentence reports are ordered. This means the court orders a report to be prepared by the probation service on the same day as the defendant pleads guilty, allowing the sentence to take place on that day also; this procedure is often used in less complex cases where there has not been sufficient time or opportunity to prepare a report in advance.
"THE PROBATION OFFICER WILL CONSIDER HOW MUCH OF A RISK TO THE PUBLIC THE DEFENDANT IS AND TO WHAT EXTENT HE PRESENTS A RISK OF REOFFENDING"
The probation officer will consider how much of a risk to the public the defendant is and to what extent he presents a risk of reoffending. The probation officer will consider what types of community sentence (if any) the defendant is suitable for. For example, a defendant with a drug addiction might be suitable for a community order with a drug rehabilitation requirement, or a defendant with a mental health problem may be suitable for a community order with a mental health treatment requirement (which could require treatment for a period of up to 3 years). The probation officer will ensure that the defendant is capable of undertaking the particular community order suggested and that any programmes or requirements proposed as part of a community order are available in the locality.
The pre-sentence report is made available to the judge and to the prosecution and defence lawyers. The defendant is, of course, entitled to see it and it will usually be discussed between the defendant and his/her legal representative prior to sentencing taking place. The judge is not bound to follow any recommended sentence in the pre-sentence report, but if the judge reaches the view that a community order is the correct sentence in a particular case, then often the judge will follow the recommendations for any particular additional requirements (such as suggested programmes and treatment requirements).
Further Sentencing Information
Here are some useful links to further information about sentencing. Also see top right on this page for even more information on this website.
The Sentencing Council website contains a wealth of helpful information about the sentencing process – a good place to start is the About Sentencing page.
Victim Personal Statement (VPS) information (on the gov.uk website).
Youth Sentencing Information (on the Sentencing Council website).