Andrew Eborn – Making the punishment fit the crime. The Truth About Sentencing
Sentencing – The Ultimate Guide
A judge’s role is to use their specialist knowledge and experience of the law to ensure cases and verdicts are carried out within the limits of the law, and then to hand down a judgment or sentence that takes all these considerations into account. A judge’s role is not to make law, but to uphold and apply the laws made by Parliament. The laws must be interpreted and applied by the judges to different cases, and this includes guidelines on the appropriate sentence.
TV or not TV
Justice must not only be done but be seen to be done to restore the public’s faith.
In 1991 Court TV was launched in America. By 2003 it had 70m cable subscribers.
In US cameras have been allowed in Courts in all States since 2005
Since July 2022, it has been possible to broadcast the sentencing remarks of judges in the Crown Court.
Lord Chancellor and Justice Secretary Dominic Raab said: “Opening up the courtroom to cameras to film the sentencing of some of the country’s most serious offenders will improve transparency and reinforce confidence in the justice system.
“The public will now be able to see justice handed down, helping them understand better the complex decisions judges make.”
The Lord Chief Justice of England and Wales, Lord Burnett of Maldon, said the move was “very positive” in promoting open justice. “I think it’s an exciting development because it will help the public to understand how and why criminals get the sentences that they do in these very high-profile cases….Sentencing of serious criminal cases is something in which there is a legitimate public interest and it’s always seemed to me that this is a part of the criminal process which can be recorded and broadcast in many cases, but not all, without compromising the administration of justice or the interests of justice.”
High Court and Senior Circuit judges sitting in crown courts can be filmed delivering their sentencing remarks. Under the current rules, only the judge is on camera to protect the privacy of victims, witnesses and jurors.
Judge Sarah Munro QC made legal history on Thursday 28th July 2022 with the first televised sentencing from Court 2 of the Old Bailey. After weighing up aggravating and mitigating factors, Judge Munro sentenced 25-year-old Ben Oliver to life imprisonment with a minimum term of 10 years and eight months for the manslaughter of his 74 year old grandfather, David Oliver.
The footage was broadcast on news channels and made available online through Sky News, the BBC, ITN and the PA news agency.
The recorded sentencing remarks are hosted by Sky News on a dedicated YouTube channel
https://www.youtube.com/channel/UCF3HqeLrCkZgARQfyqj1m-g
Judge’s Role
A judge’s role is not to make law but to uphold and apply the laws made by Parliament to different cases taking account of the guidelines on the appropriate sentence.
Magistrates can find a defendant guilty and pass sentence themselves or send the case to Crown Court for sentencing if they feel the offence is too serious for their own sentencing powers.
Factors to consider
The sentence will be influenced by a number of factors; principally:
– the circumstances of the case
– the impact that the crime has had on the victim, and
– relevant law – especially guideline cases from the Court of Appeal.
Mitigating & Aggravating Factors
The judge will take into account the mitigation, which might include difficult personal circumstances, expressions of remorse or a guilty plea.
If an offender does admit to their crime it usually means they receive a reduced sentence with a maximum of a third off when they admit their crime at the very earliest opportunity. The later the plea, the smaller the reduction.
Only once the judge has considered all of these factors will the appropriate sentence or punishment be pronounced.
Making the punishment fit the crime
One of the most important things is to make sure appropriate sentences are given for each offence – the punishment should fit the crime. To do this, judges and magistrates use sentencing guidelines to help them sentence offenders in a consistent way.
Whilst each and every offence and every offender is different the aim is to make sure that the way in which a judge or magistrate decides the sentence is the same.
Judges will also think about what sort of sentence would be most likely to change the offender’s behaviour.
Types of sentence
There are four main types, the toughest of which is prison which is used when a crime is so serious, or an offender’s record is so bad, no other sentence will do.
Offenders will normally spend half their sentence in prison, and the rest on licence in the community.
For some offenders this will mean wearing an electronic tag which means they are severely restricted in where they can go. If they break the conditions of their licence, they can be sent back to prison for the rest of the sentence.
Community sentences combine rehabilitation with activities carried out in the community, such as unpaid work to remove graffiti or clear up litter, getting treatment for drug addiction or keeping to a curfew. This is not a soft option – offenders can be made to do between 40 and 300 hours of demanding work.
Fines are the most common type of sentence and are for less severe offences. The amount of fine is set by the court after considering the seriousness of the offence and the offenders’ ability to pay.
Discharges – are used for the least serious offences for which the experience of being prosecuted and taken to court is thought to be punishment enough. If an offender commits another crime within a set period, however, a sentence for the original offence as well as a new one can be given.
The Sentencing Council
Created by the Coroners and Justice Act 2009, the Sentencing Council was launched in April 2010, replacing its predecessors the Sentencing Guidelines Council and the Sentencing Advisory Panel.
The Sentencing Council promotes greater consistency in sentencing, while maintaining the independence of the judiciary.
It is responsible for developing sentencing guidelines and monitoring their use; and assessing the impact of guidelines on sentencing practice. It may also be required to consider the impact of policy and legislative proposals relating to sentencing, when requested by the Government; and promoting awareness amongst the public regarding the realities of sentencing and publishing information regarding sentencing practice in Magistrates’ and Crown courts.
It must also consider the impact of sentencing decisions on victims and monitor the application of the guidelines (in order to help predict their effect).
About the Sentencing Council
The Sentencing Council for England and Wales was set up in April 2010 to promote greater transparency and consistency in sentencing, while maintaining the independence of the judiciary.
The primary role of the Council is to issue guidelines on sentencing, which the courts must follow unless it is in the interests of justice not to do so.
The Sentencing Council is an independent, non-departmental public body part of the Ministry of Justice family of arm’s-length bodies.
The Council has responsibility for:
– developing sentencing guidelines and monitoring their use
– assessing the impact of guidelines on sentencing practice.
The Council may also be required to consider the impact of policy and legislative proposals relating to sentencing, when requested by the Government, and
promoting awareness among the public regarding the realities of sentencing, and publishing information about sentencing practice in magistrates’ courts and the Crown Court.
The Council must also:
– consider the impact on victims of sentencing decisions
– monitor the application of the guidelines, and
– when developing guidelines, promote understanding of, and public confidence in, sentencing and the criminal justice system.
Appointments to Council
Judicial appointments to the Council are made by the Lord Chief Justice with the agreement of the Lord Chancellor. Non-judicial appointments are made by the Lord Chancellor with the agreement of the Lord Chief Justice, following open competition.
There are 14 members of the Sentencing Council.
Accountability and governance
The Council is accountable to Parliament for delivering our statutory obligations, which are set out in the Coroners and Justice Act 2009.
The Council is accountable to the Permanent Secretary at the Ministry of Justice, as its accounting officer, and to Ministers for how it uses the public funds that are delegated to the Council. Ministers are also responsible for protecting the Council’s independence. The Director General of the Policy, Communications and Analysis Group at the Ministry of Justice is accountable for making sure that effective arrangements are in place for oversight of the Council in its statutory functions and as one of the Ministry’s non-departmental bodies.
The Lord Chancellor and Secretary of State and the Lord Chief Justice have a representative at every meeting of the Council.
The 2009 Act also provides that the Lord Chancellor “may provide the Council with such assistance as it requests in connection with the performance of its functions”.
Relationship with Parliament
The Council has a statutory requirement to consult with Parliament. Members of the Council also appear before the House of Commons Justice Select Committee, as requested.
The overarching aim of the Council in publishing guidelines is to promote a clear, fair and consistent approach to sentencing. In agreeing its work plan, the Council prioritises the publication of guidelines that will fulfil that aim and schedules guideline production and revision on the basis of one or more of the following factors:
- The Lord Chancellor or the Court of Appeal formally requests the review of sentencing for a particular offence, category of offence or category of offender and the Council considers that the production or revision of one or more guidelines is justified.
- Existing guideline(s) have become significantly out of date because of amendments to legislation or other external factors.
- New legislation or other external factors have created a demand for new guideline(s) among court users, and the Council considers that the necessary evidence is available to develop such guideline(s).
- There is evidence (from the Council’s own research or evaluations, interested groups or other sources) of issues relating to sentencing that the Council considers could be addressed by the development or revision of one or more guidelines. Such issues may include but are not limited to:
- evidence of inconsistency in the sentencing of an offence or group of offences;
- evidence of inequality in sentencing between different demographic groups;
- evidence of sentencing being too high or too low for a category of offence or category of offender; and/ or
- evidence relating to the effectiveness of different sentences.
A further factor that the Council will take into account in all cases is the resource available to produce or revise guidelines.
Sentencing Council’s objectives
The Council’s five-year strategy, published in November 2021, identifies the five objectives that are its main priorities for 2021 to 2026 and the actions it is taking to achieve them.
Strategic objective 1: The Council will promote consistency and transparency in sentencing through the development and revision of sentencing guidelines
Strategic objective 2: The Council will ensure that all its work is evidence based and work to enhance and strengthen the data and evidence that underpins it
Strategic objective 3: The Council will explore and consider issues of equality and diversity relevant to its work and take any necessary action in response within its remit
Strategic objective 4: The Council will consider and collate evidence on effectiveness of sentencing and seek to enhance the ways in which it raises awareness of the relevant issues
Strategic objective 5: The Council will work to strengthen confidence in sentencing by improving public knowledge and understanding of sentencing, including among victims, witnesses and offenders, as well as the general public
About sentencing guidelines
Sentencing guidelines help make sure that judges and magistrates in courts across England and Wales take a consistent approach to sentencing.
The Sentencing Code states that the courts must follow any relevant sentencing guidelines, unless it is contrary to the interests of justice to do so.
What guidelines do
Guidelines provide guidance on factors the court should take into account that may affect the sentence. They set out different levels of sentence based on the harm caused to the victim and how blameworthy the offender is (referred to in the guidelines as ‘culpability’).
It is necessary for the courts to have a range of sentences available that appropriately reflect the seriousness of each individual offence.
Judges will also refer to Court of Appeal judgments to look at how sentences have been reached for similar cases.
How much discretion do judges and magistrates have in sentencing?
Legislation sets maximum, and sometimes minimum, sentences for offences, but the law is written in a way that gives judges and magistrates considerable discretion when it comes to sentencing. Sentencing guidelines help identify what type and length of sentence they could impose and set out the factors they should consider before making their final decision. By law, judges and magistrates must sentence according to the guidelines, unless it would be unjust to do so. They have the discretion to depart from sentencing guidelines if they think it would be in the interest of justice to do so, given all the circumstances of a particular case.
How sentencing works
The judge or magistrates look at the facts of the case and decide the appropriate sentence based on the harm done to the victim and how much responsibility the offender has for the crime. The sentence imposed on an offender should reflect the crime they have committed and be proportionate to the seriousness of the offence. It is up to the judge or magistrates to decide how much weight to give each factor in the case they are dealing with.
What are sentences for?
One of the aims of sentencing is to punish the offender for the crime they have committed.
There are five purposes of sentencing the courts must bear in mind when dealing with the vast majority of adult offenders. These purposes are set out in s.57 of the Sentencing Code.
- To punish the offender – this can include going to prison, doing unpaid work in the community, obeying a curfew or paying a fine.
- To reduce crime – by preventing the offender from committing more crime, and putting others off from committing similar offences.
- To reform and rehabilitate offenders – changing an offender’s behaviour to prevent future crime, for example by requiring them to have treatment for drug addiction or alcohol abuse.
- To protect the public – from the offender and from the risk of more crimes being committed by them. This could be by putting them in prison, restricting their activities or supervision by probation.
- To make the offender give something back – for example, by the payment of compensation or through restorative justice. Restorative justice gives victims the chance to tell offenders about the impact of their crime and receive an apology.
How do judges and magistrates weigh up the five purposes of sentencing?
When considering a sentence, as well as bearing in mind the five purposes of sentencing, the judge or magistrates must refer to the law, including the maximum and, in some cases, minimum sentence and any sentencing guidelines relevant to the offence that has been committed. The sentencing guidelines set out the process judges and magistrates should follow and the factors they should consider to work out the appropriate sentence.
The factors taken into account will vary depending on the facts of each individual case but, because the judge or magistrates will be following the sentencing guidelines, they will take a consistent approach. The kind of factors the judge or magistrates will consider will include seriousness of the offence, harm caused to the victim, the offender’s level of blame, their criminal record, their personal circumstances and whether they have pleaded guilty. These factors may be relevant in determining the type of sentence as well as how long it might be and the type and number of requirements that might be imposed.
What are licence conditions?
Licence conditions are the set of rules individuals must follow if they are released from prison but still have a part of their sentence to serve in the community.
The aim of a period on licence is to protect the public, to prevent re-offending, and to secure the successful reintegration of the individual back into the community. They are not a form of punishment and licence conditions must be considered necessary and proportionate.
Necessary means that the condition is necessary to manage the risks identified and no other less restrictive condition will be enough.
Proportionate means that any restriction or loss of liberty because of the licence condition is proportionate to the level of risk presented by the individual.
The general rule is that the restriction which the licence condition puts in place, must be no greater than is necessary to manage the risk.
Conditions must be preventative, not punitive.
- be of good behaviour and not behave in a way which undermines the purpose of the licence period;
- not commit any offence;
- keep in touch with the supervising officer in accordance with instructions given by
the supervising officer; - receive visits from the supervising officer in accordance with instructions given by
the supervising officer; - reside permanently at an address approved by the supervising officer and obtain
the prior permission of the supervising officer for any stay of one or more nights at
a different address; - not undertake work, or a particular type of work, unless it is approved by the
supervising officer and notify the supervising officer in advance of any proposal to
undertake work or a particular type of work; and - not travel outside the United Kingdom, the Channel Islands or the Isle of Man
except with the prior permission of your supervising officer or for the purposes of
immigration deportation or removal. - tell your supervising officer if you use a name which is different to the name or
names which appear on your licence. - tell your supervising officer if you change or add any contact details, including
phone number or email.
(Source: MoJ / HMPPS Licence Conditions Policy Framework)
Extra conditions may also be imposed under one of the following categories:
(1) residence at a specified place
(2) restriction of residency
(3) making or maintaining contact with a person
(4) participation in, or co-operation with, a programme or set of activities
(5) possession, ownership, control or inspection of specified items or documents
(6) disclosure of information
(7) curfew arrangement
(8) freedom of movement
(9) supervision in the community by the supervising officer, or other responsible officer, or organisation
(10) restriction of specified conduct or specified acts
(11) extremism
(12) polygraph condition
(13) drug-testing condition
(14) electronic monitoring conditions
(15) terrorist personal search
Determinate prison sentences
Determinate sentences are the most common type of prison sentence.
A determinate prison sentence is where the court sets a fixed length for the prison sentence. If an offender is sentenced to four years in prison, for example, that is the maximum time the offender could spend in custody, but they will not necessarily spend the whole of this time in prison.
The rules governing when a prisoner is released and what happens after release, vary depending on the length of the sentence.
- For sentences of less than two years the offender will be released at the halfway point of the sentence and will then be on licence for the remainder of the sentence and may be recalled to prison if they breach the conditions of their licence. At the end of that period they will be subject to supervision. If the offender breaches the terms of their supervision they will brought before a magistrates’ court and may be punished for the breach.
- Offenders sentenced to two years or more will normally serve half their sentence in prison and serve the rest of the sentence in the community on licence. While on licence an offender will be subject to supervision and the licence will include conditions. If an offender breaches their conditions, they may be recalled to prison. For some serious violent or sexual offences where the sentence is 7 years or more (imposed on or after 1 April 2020) (i.e. offences listed in Schedule 19 to the Sentencing Act 2020 the offender will be released at the two-thirds point. For terrorism offences the release arrangements are different and offenders may serve two-thirds or more of their sentence in custody.
- Offenders serving sentences of between three months and four years, with certain exceptions for violent and sexual offenders, may also be eligible for release on a home detention curfew (HDC). This allows an offender to be released up to 135 days before their automatic release date. The offender will be electronically tagged and a curfew imposed. If the offender breaches the curfew they can be recalled to prison.
- In 2019, 76,000 offenders were given a determinate sentence, representing six per cent of total offenders sentenced and 99 per cent of total immediate custodial sentence outcomes. (These statistics are taken from the Ministry of Justice’s criminal justice statistics publications.)
Parole Board
The Parole Board is an independent body that carries out risk assessments on prisoners to determine whether they can be safely released into the community. established in 1968 under the Criminal Justice Act 1967 and became an independent executive non-departmental public body on 1 July 1996 under the Criminal Justice and Public Order Act 1994. Deal with 25,000 cases a year, which are referred to us by the Ministry of Justice once prisoners have served the punishment determined by the courts. Parole Board decisions are solely focused on whether a prisoner would represent a significant risk to the public after release.
Responsibilities
The primary role is to determine whether prisoners serving indeterminate sentences, and those serving certain determinate sentences for serious offences, continue to represent a significant risk to the public.
The main cases we oversee are for prisoners serving:
- life sentences and sentences of imprisonment for public protection (IPP), under the Crime (Sentences) Act 1997, as amended.
- extended determinate sentences (EDS), under the Criminal Justice Act 2003 (as amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012)
- sentences for offenders of particular concern, including terrorists and serious child sex offenders, under the Criminal Justice and Courts Act 2015.
They also consider:
- the re-release of prisoners who are recalled to prison for breach of their licence conditions under the Criminal Justice Act 2003
Referral to Parole Board of High-Risk prisoners who would normally be released automatically after serving one-half or two-thirds of their sentence – from 28 April 2022 section 244ZB Criminal Justice Act 2003 enables the Secretary of State for Justice to refer a prisoner to the Parole Board instead of automatically releasing them at their usual 1/2 or 1/3 conditional release date. A reference to the Parole Board can only be made if the Secretary of State believes on reasonable grounds that the prisoner would, if released, pose a significant risk to members of the public of serious harm occasioned by the commission of any of the following offences—
(a) murder;
(b) specified offences, within the meaning of section 306 of the Sentencing Code, namely a specified violent offence (in Part 1 of Schedule 18), a specified sexual offence (in Part 2 of Schedule 18), or a specified terrorism offence (in Part 3 of Schedule 18).
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