Putting sentencing into practice

Who passes the sentence?

Have you ever wondered who has the final say on what sentence you will receive for your crime? Well the answer depends on the nature of the crime itself.  

The severity or nature of your crime determines where your case will be heard, and where your case is heard will determine who has the ultimate responsibility for imposing your sentence.  

On conviction in the Crown court, it is the trial judge, without the help of the jury, who will decide what sentence to pass.  

If your case is heard in Magistrates court, the Magistrate can themselves decide upon your sentence or, under section 3 of the Powers of Criminal Courts (sentencing)Act 2000, the defendant can be taken to the Crown Court for them to pass sentencing on the defendant.  

The reason for Magistrates court passing the case to the Crown court for sentencing is due to the sentencing powers of the courts. The Magistrates court, under the Criminal Justice Act 2003, can impose a maximum sentence of 12months in relation to summary offences.

Fixed sentencing

Certain legislations have created fixed sentences for specific crimes. Since 1997, certain crimes carry fixed sentences as a general rule.

Mandatory sentences

Certain sentences will have a mandatory sentence when committed for the first time. For example, if a defendant commits murder, the mandatory sentence attached to such a crime is life imprisonment.

Minimum sentences

Under section 287 of the Criminal Justice Act 2003, there are now minimum sentences that have to be passed in relation to firearm offences. This was introduced to tackle the ever growing problem we face with gun crime.

Categories of sentences

There are four categories of sentences; 

  • Custodial sentences
  • Community sentences
  • Fines
  • Miscellaneous offences

Custodial Sentences

The Powers of Criminal Courts (sentencing) Act 2000 defines what the courts mean by a custodial sentence.  

For a person over the age of 18 years old, a custodial sentence is either a sentence served imprison or a suspended sentence.  

For a person under the age of 18 years old, the Act refers to a custodial sentence as either a tem in a young offender’s institution or custody for life.

A custodial sentence should only be passed if it reflects the severity of the crime. If a custodial sentence is justified, the courts are under an obligation to impose the shortest possible sentence to reflect the severity of the crime.  

When imposing a custodial sentence the courts should take into consideration the defendants previous criminal convictions, whether bail has been previously granted and whether any conditions imposed on the defendant were breached.  

A pre-sentence background report should be submitted to the courts by the probation service in order to assist the Judge’s decision on whether or not to impose a custodial sentence.

Community sentences

The same principle that applies to custodial sentencing applies here; the Courts can only impose a community sentence if the crime reflects the need for such a sentence to be passed. A community sentence must reflect the need for liberty to be preserved.

Dangerous offenders

The Criminal Justice Act 2003 introduced a new scheme to deal with the most dangerous of offenders. These offenders will include those who commit crimes such as sexual offences or murder, and have been assessed by professionals and deemed dangerous. The scheme allows sentencing of such offenders to be extended, and for release of such offenders to be up to the discretion of the parole board and not an automatic release. If a defendant poses such a risk to the safety of the public then the length of the sentence can be for an indefinite period of time.

The Tariff System

The Tariff system treats case with similar circumstances and merits alike. It uses the notion that people of similar characteristics from similar backgrounds who commit similar offences should receive similar punishment. This is not set in stone as the Judiciary have the ultimate discretion, and if certain circumstances require the situation to be treated differently, the courts have the ability to do so. 

The tariff system is divided into two sections, initial calculation and application of secondary tariffs.

Initial Tariff sentence

When deciding upon what sentence to impose the judge will firstly take the sentence that society and the legal system deems appropriate for the offence. This will be adjusted during the secondary stage with mitigating circumstances being brought into the equation.

Secondary tariff application

After the initial stage, the judge will consider all the facts of the case, any mitigating circumstance, professional reports, medical evidence, witness evidence and forensic evidence into question and will adjust the sentence in accordance with what is appropriate in the situation.  

There may be aggravating factors in the case that may have such an impact of the final decision that an exemplary sentence is passed. The Court of Appeal have stated that in situations like this, all mitigating circumstances and outside factors should be ignored and the initial tariff sentence should be increased accordingly.