The Criminal Courts: Procedure and Sentencing

1. The Criminal Courts: Procedure and Sentencing Sentencing

2. Objectives • Describe the aims of sentencing • Describe the different sentences available to a court in sentencing an adult offender • Explain what is meant by aggravating and mitigating factors

3. Aims of sentencing • Once D found guilty the court must decide on sentence • Requirement of consistency • Consistency leads to public confidence • Range of sentences available and dependant on type, seriousness and circumstances of crime • Guidelines and sentences are decided upon with a number of traditional theories in mind

4. Sentencing theories • Retribution • Deterrence • Prevention • Rehabilitation • Incapacitation • Reparation

5. Criminal Justice Act 2003 s.142 • The punishment of offenders • The reduction of crime (including its reduction by deterrence) • The reform and rehabilitation of offenders • The protection of the public • The making of reparation by offenders to persons affected by their offences

6. Retribution • Retributive theories argue that crime deserves to be met by punishment. • They attract criticism from liberals who see in them a relic of barbarism having no place in a civilised society, but they still meet with wide public acceptance and are central to the present government's penal policies. • A discretionary life sentence, for example, has a core of "deterrence and retribution" before which a prisoner may not be released even if he is no longer a danger to society.

7. Retribution • "The Old Testament concept of 'an eye for an eye' no longer plays any part in our criminal law, but there is another aspect of retribution that is frequently overlooked. Society, through the courts, must show its abhorrence of particular types of crime, and the only way the courts can do this is through the sentences they pass. They do not have to reflect public opinion, but they cannot disregard it: perhaps their duty is to lead it." (Lawton LJ in R vSargeant) • One aspect of retribution is therefore that sentencing serves as a denunciation of the crime, helping reinforce society's collective disapproval of unacceptable behaviour and providing reassurance that the system does work.

8. Deterrence • Individual deterrence • General deterrence – strict liability helps here

9. Prevention of crime • Protects public • Prisoners cannot re-offend in prison • Argument – by keeping prisoners in prison when they come out employers will not employ them so they return to crime

10. Rehabilitation • Helps to overcome problems offender might have • Avoid re-offending • Curing the offender • Provision of skills • Anger management, driver training, education • Fixed penalty v maximum set by law v minimum sentences

11. Types of sentence • Custodial • Community • Financial • Discharge • Other

12. Custodial • A custodial penalty - imprisonment up to a certain maximum (which may be life) - is possible for the most serious offences: where no maximum is specified for a statutory offence, it is taken to be two years. • Under s.152 of the Criminal Justice Act 2003 the court "must not pass a custodial sentence unless it is of the opinion that the offence ... was so serious that neither a fine alone nor a community sentence can be justified for the offence", but a custodial sentence can also be passed if the defendant refuses to cooperate with a community penalty. Section 225 of the Act requires a court dealing with a serious offender to pass an (indeterminate) sentence of "imprisonment for public protection" if the offender poses a significant risk to members of the public of serious harm.

13. Custodial • First offenders are not normally imprisoned at all except in serious cases, but the use of imprisonment has been increasing. England and Wales had 142 people out of every 100 000 behind bars in early 2005, and the latest figure (June 2007) is around 150 - this is among the highest rates in the EU, though less than a quarter of the rate in the USA. • Under s.153 of the 2003 Act, any custodial sentence (other than one for which the minimum is fixed by law) must be for the shortest term that in the opinion of the court is commensurate with the seriousness of the offence. This is consistent with a general policy of passing "minimum appropriate sentences".

14. Community • A community sentence may be imposed if the offence is sufficiently serious, and may take any of several forms. • The offender may be given a Community Rehabilitation Order (formerly called probation) for between six months and three years, often with conditions as to place of residence, participation or non-participation in certain activities, attendance at a probation centre, and/or treatment for drug or alcohol dependency.

15. Community • He may be given a Punishment Order requiring him to do up to 240 hours' unpaid work for the community. • These two may be combined with one another in a Community Rehabilitation and Punishment Order, but not with any other penalty. • In areas where adequate monitoring arrangements are in place, a curfew order may be made restricting his movements for between two and twelve hours per day (but avoiding any clash with work, education or religious commitments) for a period of up to six months.

16. Financial Sentences • A financial penalty - a fine up to a certain limit - may be imposed for various statutory offences if they are serious enough, and unlimited fines for others, though any fine imposed must not be excessive compared with the offender's means. • Fines are imposed in fact in about three-quarters of all non-motoring cases tried summarily (and in 90 per cent of motoring cases), and so are by far the commonest penalty. Even indictable offences lead to a fine 30 per cent of the time. Time to pay (up to a year) is normally allowed if the offender requests it.

17. Discharge • An absolute discharge, or a conditional discharge for up to three years, may be granted if the court thinks punishment unnecessary. • This does not count as a conviction for most purposes, unless the defendant wishes to appeal against it.

18. How are sentences selected? • Previous convictions • Pre-sentence report for more serious offences • Prepared by probation service • Officer from service will interview D • Whilst this is going on D remanded or bailed • Why did D commit offence • Attitude to offence • Attitude to victims • Other factors affecting blameworthiness • Risk of harm and re-offending

19. Aggravating Factors • Make offence more serious • Previous convictions for similar offences • Offence committed whilst on bail • The involvement of racial or religious hostility • Hostility on the grounds of sexual orientation or disability • Vulnerable victim • Gang attacks • Abuse of a position of trust • Use of a weapon or repeated attack • Possibly if under influence of drink or drugs

20. Mitigating Factors • Pleaded on behalf of defendant and make offence less serious • First offence D has committed • D very young or old • D is a vulnerable offender easily influenced • He has expressed remorse and perhaps made an offer to compensate • Difficult home circumstances • Guilty plea also mitigates (reduction of a third for a guilty plea at first opportunity and a tenth if it is when the trial starts)

21. Objectives • Describe the aims of sentencing • Describe the different sentences available to a court in sentencing an adult offender • Explain what is meant by aggravating and mitigating factors