Role of the Courts
- Whenever a person pleads guilty, or is found guilty of an offence, the role of the court is to decide what sentence should be imposed.
- Judges and Magistrates have a fairly wide discretion as to the sentence they select in each case, although they are subject to certain restrictions.
KEY ACTS IN RELATION TO SENTENCING:
1) Criminal Justice Act 2003
2) Powers of the Criminal Courts Sentencing Act 2000
Theories of Sentencing
- There are 2 theories of sentencing:
Based on the idea of punishment because the offender deserves to be punished for his/her acts. This theory does not seek to reduce crime or alter the offender's behaviour.
Seeks to help the offender from re-offending. Therefore, the laws are only used to inflict as much punishment as required to prevent future crimes.
Aims of Sentencing
- When judges or magistrates pass a sentence, they will not only look at the sentences available, they will also have to decide what they are trying to achieve by the punishment they give.
- Section 142 of the Criminal Justice Act 2003 sets out the purposes of sentencing for those aged 18 and over saying that a court must have regard to:
- the punishment of offenders
- the reduction of crime (including its reduction by deterrence)
- the reform and rehabilitation of offenders
- the protection of the public and
- the making of reparation by offenders to persons affected by their offences
The 6 Aims
- There are 6 aims of sentencing, which are divided up and each come under one of the teo theories.
3) Protection of the Public
1) Retribution - Comes under the Retributive Theory
- Punishment for wrongdoing.
- Not concerned with the defendant, only the offence that was committed and making use that the punishment inflicted is in proportion to that offence.
- The saying, 'an eye for an eye, a tooth for a tooth and a life for a life' reflects this aim and was taken into account to justify the use of the death penalty for murder.
- Based on the idea that each offence should have a certain tariff sentence, i.e. 25 years for murder.
- How does this sentence achieve the aim of retribution? It takes away the defendant's life.
2) Denunciation - Comes under the Retributive Theory
- Centres on society expressing its outrage of the criminal activity.
- Failure of courts to punish according society's expectations can lead to vigilante action.
- Sentence given should indicate to both the defendant and to society that we condemn this type of behaviour.
- Reinforces moral boundaries. E.g. For drink driving, the courts can impose a custodial sentence and ban them from driving.
- How does this sentence achieve the aim of denunciation? It expresses society's views on drink driving.
Protection of the Public (Incapacitation)
3) Protection of the Public (Incapacitation) - Comes under the Retributive Theory
- Focused on protecting the public from dangerous offenders.- Life sentence/long-term custodial sentence given to those who commit murder, or other violent/sexual offences.
- Under the Criminal Justice Act 2003, the defendant can be sentenced to prison for public protection.
- For less serious offences, there is other ways the public can be protected. E.g. dangerous drivers are disqualified from driving, or to include an exclusion order as a requirement in a community order, e.g. ban the defendant from going to places where he/she is most likely to commit an offence (R v Winkler).
- How does this sentence achieve the aim of Protection of the Public? Imprisons the defendant whereby he cannot offend and the public are protected.
Deterrence - Individual
4) Deterrence - Comes under the Retributive Theory
- Can be individual or general.
- Aimed at particular offender to put him off from re-offending by either imposing very severe sentence, e.g. prison sentence for large fine, or by threat or prison through suspended sentence or conditional discharge.
- By making an example of an individual, it is hoped this will prevent others from offending.
Deterrence - General
- Aims to put society off committing crimes by imposing harsh sentences that aren't concerned with fairness.
- Can be higher than the usual tariff sentence for the offence.
- This aim relies on media publishing harsh approach by the judge to deter public from offending. E.g. custodial sentence for theft of mobile phones.
- How does this sentence achieve the aim of deterrence? Public are aware of potential punishments.
5) Rehabilitation - Comes under the Utilitarian Theory
- Aim is to reform offender and rehabilitate him/her into society.
- Forward thinking aim, with hope that the offender's behaviour will be altered by penalty imposed, and will thus prevent him from further offending.
- Sentences can be drug testing and treatment orders aimed at trying to rehabilitate drug abusers.
- How does this sentence achieve the aim of Rehabilitation? Individual would receive treatment and he/she will therefore cease to use drugs and will reform as a person.
- Reform is very important in Young Offenders and is also used for some adults.
- Individualised sentences can be used to support offenders.
6) Reparation - Comes under the Utilitarian Theory
- Considers victim when sentencing offender.
- Compensation orders used to make offender make amends to the victim.
- Concept of restitution includes making reparation to society as a whole and can be seen in use of unpaid work requirement where offenders work on a community project.
- How does this sentence achieve the aim of reparation? Offender is paying back the community for their wrong doings.
A few things to remember...
- More than one aim of sentencing can be used when passing a sentence, e.g. rehabilitation and reparation.
- When answering questions such as 'Discuss how the aims of sentencing may be achieved by the sentences available', always include aggravating and mitigating factors. These are taken into account by the judge.
Aggravating & Mitigating Factors
- When judges/magistrates pass sentences, not only do they look at sentences available and consider what they're trying to achieve, but also take into account the aggravating and mitigating factors of the case and the offender's background.
- These will have a huge impact upon the severity and type of sentence imposed.
These may include:
- Previous convictions
- If the offence was violent or sexual.
- If there was no remorse shown.
- If the crime was premeditated.
- It the offence was related to religion or race.
- If the victim was vulnerable.
- If the offender was in a position of trust.
- If the offence was gang related.
- If the offence was committed whilst the offender was on bail.
- If the offender enters an early guilty plea - may result in a reduction in sentence, with up to 1/3 taken off.
- If the offender has no previous convictions.
- If remorse was shown.
- If the crime was an act of self-defence.
- If the offender has positive pre-sentence reports.
- If the crime was not premeditated.
Power of the courts
- The courts have several different types of sentences available to them.
- There are 4 main categories:
1) Custodial sentences
2) Community sentences
- The courts also have the power to make additional orders such as compensation orders, and, in motoring offences, have other powers such as disqualification from driving.
- A custodial sentence is the most serious punishment that a court can impose.
- Custodial sentences range from a few weeks to life imprisonment. They include:
1) Mandatory and discretionary life sentences
2) Fixed-term sentences
3) Custody plus (short-term sentence)
4) Suspended sentences
- Custodial sentences are meant to be used only for serious offences. Section 152 of the Criminal Justice Act 2003 says 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".
Custodial sentences continued...
- The court must state its reason for imposing a custodial sentence, and in the case of the Magistrates' Court, that reason must be written on the warrant of commitment and entered in the court register.
- In the guidelines on suggested 'entry points' published by the Magistrates' Association, a custodial sentence is advised for offences such as assaulting a police officer in the execution of his duty, and burglary of residential property.
Custodial sentences - Mandatory life sentences
- For murder, the only sentence a judge can impose is a life sentence. 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 minimum term is now governed by the Criminal Justice Act 2003. This gives judges clear starting points for the minimum period to be ordered. The starting points range from a full life-term down to 12 years.
- A whole life-term should be set where the offence falls into one of the following categories:
1) The murder of two or more persons, where each murder involves a substantial degree of premeditation or planning or the abduction of the victim or sexual or sadistic conduct.
2) The murder of a child if involving the abduction of the child or sexual or sadistic motivation.
3) A murder done for the purpose of advancing a political, religious or idealogical cause.
4) A murder by an offender previously convicted of murder.
Custodial sentences - Discretionary life sentences
- For other serious offences such as manslaughter, **** and robbery the maximum sentence is life imprisonment, but the judge does not have to impose it.
- The judge has discretion in sentencing and can give any lesser sentence where appropriate. This can even be a fine or discharge.
Custodial sentences - Fixed-term sentences
- For other crimes, the length of the sentence will depend on several factors, including the maximum sentence available for the particular crime, the seriousness of the crime and the defendant's previous record.
- Imprisonment for a set number of months or years is called a 'fixed-term' sentence.
- Prisoners do not serve the whole of the sentence passed by the court. Anyone sent to prison is automatically released after they have served half of the sentence.
- Only offenders aged 21 and over can be given a sentence of imprisonment.
Custodial sentences - Minimum sentences
- There is a minimum sentence of 7 years for anyone aged 18 or over who id convicted on three separate occasions of dealing in Class A drugs.
- There is also a minimum sentence of 3 years for those convicted of burglary of a residential building for a third time.
- In both these cases judges can impose a lesser sentence if there are exceptional circumstances.
Custodial sentences - Suspended prison sentences
- An adult offender may be given a suspended prison sentence of up to two years (six months maximum in the Magistrates' Court).
- This means that the sentence does not take effect immediately.
- The court will fix a time during which the sentence is suspended; this can be for any time period of up to two years.
- If, during this time, the offender does not commit any further offences, the prison sentence will not be served. However, if the offender does commit another offence within the period of suspension, then the prison sentence is 'activated' and the offender will serve that sentence together with any sentence for the new offence.
Custodial sentences - Suspended prison sentences c
- A suspended sentence should only be given where the offence is so serious that an immediate custodial sentence would have been appropriate, but there are exceptional circumstances in the case that justify suspending the sentence.
- The suspended sentence can be combined with any of the requirements used in a community order. If the offender fails to meet the requirements the suspended sentence may be 'activated'. This means that the offender will be made to serve the term of imprisonment.
- Prior to the Criminal Justice Act 2003, a suspended sentence could only be combined with a fine or a compensation order, leaving the offender unsupervised. As a result, a suspended sentence was seen as a 'soft option' and rarely used by the courts.
- A community sentence is imposed in 13% of cases each year.
- It is a serious punishment and an alternative to prison.
- Anyone aged 16 or over can be given a community sentence and it is seen as a more effective way or rehabilitating offenders than sending them to prison.
- Under s.48 of the Criminal Justice Act 2003, it can only be passed if the offence is serious enough to warrant it.
Community sentences continued...
- Community sentences can be made up of various elements to ensure that they fit the need of a particular defendant. They may include:
1) between 40 and 300 hours of unpaid work in the community, such as cleaning graffiti or collecting charity-bag donations
2) supervision by the probation service
3) treatment for drug or alcohol addiction
4) anger, alcohol or drug training programmes that look at an offender's behaviour
5) an activity requirement obliging the offender to undertake an activity for a set number of days
6) prohibited activity requirement banning offender from certain activities
7) curfew requiring offender to remain in specified area at certain times
8) residence requirement
9) mental health requirement
- A fine requires the offender to pay a financial penalty and may be imposed alone of in addition to another type of sentence.
- This is the most common way of disposing of a case in the Magistrates' Court where the maximum fine is £5,000 for an individual offender. There is no maximum amount in the Crown Court.
- When setting the level of a fine, the court must take into account two factors:
1st: the seriousness of the offence and
2nd: the financial means of the offender (as he or she may go to prison if the fine is not paid).
- According to the Home Office, fines are imposed in approximately 71% of cases each year, making them by far the most common type of sentence.
- Discharges are imposed in 8% of cases when the defendant has been convicted of an offence but the court is of the opinion that punishment is unnecessary for some reason.
- There are 2 types of discharge: conditional and absolute.
Discharges - Conditional and Absolute
- A conditional discharge means that although the offender will have a criminal record, no further action will be taken against him or her, as long as he or she does not commit a further offence within a specified time period of up to 3 years.
- If he or she does commit a further offence, he or she may be re-sentenced for this offence, as well as receiving whatever sentence is passed for the second offence.
- An absolute discharge means that the offender will have a criminal record but no further action will be taken.
- This term includes all offenders under the age of 21.
- However, there are considerable variations in the different sentences available for those under 18, under 16, under 14 and under 12.
- The main aim in sentencing young offenders is reformation and rehabilitation.
- Offenders under 18-years-old are normally dealt with in the Youth Court.
Young Offenders - Custodial sentences - Detention
- For very serious offences, the courts have the additional power to order that the offender be detained for longer periods.
- For 10 - 13-year-olds this power is only available where the crime committed carries a maximum sentence of at least 14 years' imprisonment for adults.
- For 14 - 17-year-olds, it is also available for causing death by dangerous driving, or for causing death by careless driving while under the influence of drink or drugs.
- The length of detention imposed on the young offender cannot be more than the maximum sentence available for an adult.
Young Offenders - Custodial sentences - Detention
- Any offender aged 10-17 who is convicted of murder must be ordered to be detained during Her Majesty's Pleasure.
- This is an indeterminate sentence which allows the offender to be released when suitable.
- The judge in the case can recommend a minimum number of years that should be served before release is considered, and the Lord Chief Justice will then set the tariff.
- If an offender reaches 21 while still serving a sentence he will be transferred to an adult prison.
Young Offenders - Custodial sentences - Detention
- The Crime and Disorder Act 1998 created a custodial sentence, called a detention and training order, for young offenders.
- This must be for a specified period within a minimum of 4 months and a maximum of 24 months.
- In between these, the order can be for 6 months, 8 months, 10 months, 12 months or 18 months. No other length of time can be given.
- A detention and training order can be passed on offenders from the age if 12 to the age of 21, but for those under the age of 15 this order can only be made if they are persistent offenders.
Young Offenders - Custodial sentences - Young Offe
- Offenders aged 18 to 20 can be sent to a Young Offenders' Institution as a custodial sentence.
- The minimum sentence is 21 days and the maximum is the maximum allowed for the particular offence.
- If the offender becomes 21 years old while serving the sentence, he will be transferred to an adult prison.
Young Offenders - Community sentences
- These can only be given to young offenders aged 16 and over.
- The same requirements as for adults can be imposed.
- These include an unpaid work requirement, an activity requirement, a supervision requirement, a prohibited activity requirement, drug treatment and testing requirement, and a curfew requirement.
Young Offenders - Community sentences - Attendance
- The young person is required to go to an attendance centre for a certain number of hours, usually spread over Saturday mornings.
- These centres are run by the police and include activities that centre on discipline, physical training and social skills.
- These orders are for those aged 10 - 24.
Young Offenders - Community sentences - Supervisio
- Those under 18 can be placed under the supervision of one of the following:
1) the local social services
2) a probation officer
3) a member of a Youth Offending Team.
- This can be for a period of up to three years.
Young Offenders - Community sentences - Reparation
- Reparation orders are intended to help young offenders to understand the consequences of their offending and to take responsibility for their behaviour.
- Offenders must try to repair the harm caused by their offences.
- If the victim agrees, an offender may have direct contact with the victim.
- Otherwise, the offender will repay the community as a whole - usually by carrying out work such as cleaning graffiti.
- It may be imposed on offenders under the age of 18.
Young Offenders - Community sentences - Referral o
- If the young offender is in court for the first time and pleads guilty, he or she may be given a referral order.
- This requires attendance at a Youth Offender Panel, which is made up of two volunteers from the local community and someone from the Youth Offending Team.
- The young offender, his or her parents, the panel and sometimes the victim, all agree upon a contract aimed at repairing the damage that the offending has caused and minimising the risk of re-offending.
Young Offenders - Community sentences - Action Pla
- An action plan order lasts 3 months and is a programme individually tailored to address the specific underlying causes of the behaviour of the young offender in question.
- It aims to rehabilitate the offender and may involve activities focused on reparation, going to an attendance centre or undertaking educational programmes.
- Can be imposed on offenders under the age of 18.
Young Offenders - Fines
- The maximum amount of a fine varies with the age of the offender:
- 10 - 13-year-olds can only be fined a maximum of £250, while for 14 - 17-year-olds the maximum is £1,000.
- Those aged 18 and over are subject to the normal maximum of the Magistrates' Court of £5,000.
Young Offenders - Discharges
- These may be used for an offender of any age, and are commonly used for first-time young offenders who have committed minor crimes.
- However, the courts cannot conditionally discharge an offender in the following circumstances:
1) where a child or young offender who is convicted of an offence has been warned within the previous two years, unless there are exceptional circumstances which must be explained in open court
2) where the offender is in breach of an anti-social behaviour order
3) where the offender is in breach of a sex offender order.
Young Offenders - Reprimands and warnings
- These are not sentences passed by a court, but methods by which the police can deal with offenders without bringing the case to court.
- For either a reprimand or warning to be given there must be evidence that a child or young person has committed an offence and admits it.
- In addition, the police must be satisfied that it would not be in the public interest for the offender to be prosecuted.
- A reprimand or warning can only be given if the offender has never been convicted of any offence.
Young Offenders - Reprimands and warnings continue
- There is a limit to the number of times and the occasions on which an offender can be 'cautioned'. The first step is the reprimand.
- This can only be given if the young person has not been previously reprimanded or warned.
- Even then it should not be used where the constable considers the offence to be so serious as to require a warning.
- An offender may be warned only if he has not been warned before or if an earlier warning was more than two years before.
- When warned the child or young offender must be referred to a Youth Offending Team.
- This team assesses the case and, unless it considers it inappropriate to do so, arranges for the offender to participate in a rehabilitation scheme.
Young Offenders - Parental responsibility
- If the parents agree, they can be bound to keep their child under control for a set period of up to one year.
- If the child commits an offence during this period the parents will forfeit a sum of money up to a maximum of £1,000.
- If a parents unreasonably refuses to be bound over, the court has the power to fine that parent instead.
- Parents can also be bound over to ensure that a young offender complies with a community sentence.
Young Offenders - Parental responsibility continue
- Where an offender under 16 years old is fined or ordered to pay compensation, the court must require the offender's parents to pay.
- In addition, the financial situation of the parent is taken into account in deciding the amount of the order.
Young Offenders - Youth Offending Teams
- The Crime and Disorder Act 1998 made it the duty of each local authority to establish one or more Youth Offending Teams (YOTs) in their area.
- The main idea in establishing these teams is to build on co-operation between agencies involved, especially social services and the probation service.
- These teams are to co-ordinate the provision of youth justice services in the area.
- A YOT must include a police officer, a probation officer, a local authority social worker, a representative of the local health authority and a person nominated by the chief education officer.
- Any other appropriate person may also be invited to join the team.
Young Offenders - Youth Offending Teams continued.
- The role of YOTs is highlighted by the fact that, under s.66 of the Crime and Disorder Act 1998, any offender who is warned must be referred to the local YOT.
- Youth courts may also refer offenders to the YOT.