SentencingIS THE UK A SOFT TOUCH?

Overview

Once a person has been found guilty of a criminal offence, the court must impose some kind of sentence.

This can range from prison, community work, and heavy fines; through to unconditional discharges.

How does a judge or magistrate decide what kind of sentence to apply?

What factors do they consider?

Are there any guidelines?

Is the UK too soft on prisoners?

Objectives

By the end of the session, all learners will:

1. Be able to identify and explain the main aims of sentencing.

2. Be able to apply the rules to some video cases.

Quick Questions

1. What is the maximum custodial sentence a magistrate can impose?

2. What is the maximum fine a magistrate can impose?

3. What must the Magistrates Court do if its sentencing powers are not strong enough for the case?

4. What is the maximum custodial sentence the Crown Court can impose?

5. What is the maximum fine the Crown Court can impose?

6. Do the higher courts (Court of Appeal, Supreme Court etc) have stronger sentencing powers than the Crown Court?

The Basics

http://sentencingcouncil.judiciary.gov.uk/about-sentencing.htm

Aims of Sentencing

Criminal Justice Act 2003, Section 142:

1. Punishment

2. Reduction of crime (deterrence)

3. Reform and rehabilitation

4. Protection of the public

5. Reparations by offenders to those affected.

Which, in your view, is the most important?

Punishment

Also known as “retribution”.

Does not seek to prevent re-offending, or protect the public. Its only aim is to inflict revenge.

The punishment should be proportionate to the offence: Murder deserves a more harsh punishment than theft.

Sentencing Council sets guidelines in order to get the proportionality right and make sentencing more consistent. http://sentencingcouncil.judiciary.gov.uk/docs/Theft_and_Burglary_of_

a_building_other_than_a_dwelling.pdf

Punishment

Has its roots in the old adage: “An eye for an eye, a tooth for a tooth.”

Can provide comfort to victims.

Gives the impression that the defendant is getting his just deserts.

Deterrence

Ensure that the individual criminal does not commit the same crime again.

Ensure that the public at large does not commit the same crime.

Make an example of him/her.

Examples: Community sentences, suspended sentences, prison.

Deterrence

Has strong links with punishment.

If the public sees the criminal suffering a long prison sentence or a dull community sentence, they could be put-off.

Increases the potential costs of committing crime.

But are all criminals so thoughtful about the future and the risks?

Rehabilitation

Reform the offender and make him a better person.

Examples: Drug abstention orders, alcohol treatment, mandatory education.

Tries to intervene in the criminal’s life, reshape him, make her a new woman.

Unlike retribution or punishment, the court would mould a sentence around their individual circumstances.

They are assisted in this by the Probation Service.

Protection of the Public

The idea is to incapacitate the offender.

Make it difficult for him to reoffend and thereby protect the public.

Examples: Driving ban, curfew order.

Again, strong links with other aims: Prison is an example of punishment, deterrence, and incapacitation.

Instead of seeking revenge, this aim is more pragmatic: protect the innocent from the guilty.

Reparation

Compensate the victim – compensation order.

Give property back to the victim – restitution order.

Section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 imposes a duty on courts to give reasons if they do not make a compensation order.

Again, the courts will take a look at the offender’s financial situation before ordering reparation or a fine.

Aims

The list of aims under section 142 is not exhaustive.

Judges can take other aims into consideration if they so wish.

http://www.theguardian.com/uk-news/2013/dec/06/royal-marine-blackman-10-years-jail-taliban-murder

Sentencing Practice in the Courts

The courts usually consider three things:

1. The offence committed.

2. The background of the offender.

3. The aims of sentencing.

The Offence Committed

Section 143(1), Criminal Justice Act 2003: "In considering the seriousness of the offence, the court must

consider the offender's culpability in committing the offence and any harm which the offence caused, or was intended to cause or might reasonably foreseeably have caused.“

Culpability: Blameworthiness.

Example: Stealing money from a vulnerable old man is more blameworthy than stealing money from a millionaire.

The Offence Committed

Aggravating factors: Previous convictions for similar offences.

Offender was on bail when he reoffended.

Racial or religious hostility.

Hostility because of the victim’s sexuality or disability.

Offender was in a position of trust (e.g. teacher or care worker).

Was the offence premeditated?

These make the offender more culpable and can lead to a harsher sentence.

The Offence Committed

Mitigating factors: Clean criminal record.

Psychiatric problems.

Provocation.

Etc…

These make the offender less culpable.

Background of the Offender

Probation Service will prepare a report detailing the offender’s background. Any prior convictions?

Is the offender dangerous (and therefore unsuitable for a community sentence)?

Has she failed to respond to treatment?

Does she have any mental problems?

What is her financial situation (relevant to the level of fine)?

Types of Sentence

Custodial: Some crimes carry a maximum or minimum sentence (e.g. Theft

= 7 years maximum; Murder = life minimum).

Courts must work within these limits.

Prison sentences are a last resort: Section 152 Criminal Justice Act 2003:- “The court must not pass a

custodial sentence unless the offence "was so serious that neither a fine alone nor a community sentence can be justified".

Types of Sentence

Prison sentences can be suspended. If the offender commits another crime whilst the sentence is

suspended, he is sentenced to imprisonment for the original crime and the new one.

They can be indeterminate If the prisoner is particularly dangerous, he is imprisoned until he is

considered fit to be released.

They can be extended Sentenced to X years in prison plus another Y years on licence.

Types of Sentence

Community sentences (unpaid work, prohibited activity, exclusions etc)

Fines

Discharges

Compensation orders

Restitution orders

Driving bans

Young Offenders

Those aged 18-20 are sent to a Young Offenders Institute (YOI).

If they reach 21, they are transferred to a normal prison.

Emphasis is much more on rehabilitation than punishment.

They can be sentenced to a Youth Rehabilitation Order: Compulsory training or education.

Drugs treatment.

Unpaid community work.

Young Offenders

Parents can be asked to control their child for up to one year. If the child misbehaves, they are charged £1000

If the parents refuse, the court can fine the parents.

Parenting Orders: Parents required to attend training sessions on how to bring up their

children.

Mentally Ill Offenders

Can be required to attend a hospital for treatment.

In extreme cases, they can be sectioned under the Mental Health Act and placed into a mental institution.

Those with relatively minor mental illnesses could have their condition viewed as a mitigating factor.

ASBOS

Anti-Social Behaviour Orders.

These are not criminal penalties.

They are handed out to people not yet found guilty of a criminal offence.

Required to stay away from a particular area, or cease a particular activity.

If the ASBO is breached, it becomes a criminal matter.

Clever (sly?) way of getting around the innocent until proven guilty principle.

You be the Judge

http://sentencingcouncil.judiciary.gov.uk/get-involved/you-be-the-judge.htm