The Bar Professional Training Course
Full-Time 2015/2016
Part-Time (by Open Learning) 2015/2017 Year 1
BRISTOL
Faculty of Business and Law
SENTENCING HANDOUT
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A. INTRODUCTION
Procedural Background
Before you consider the subject of sentencing you need to be familiar with some
basic concepts of criminal procedure.
A person can be tried for a criminal offence in one of two courts – the Crown Court
or the magistrates’ court. The magistrates’ court is sub-divided into the adult
magistrates’ court and the youth court, though the phrase ‘magistrates’ court’, used
without qualification, always refers to the adult court. Only people under 18 can be
dealt with in the youth court.
Adults (18+) make their first appearance in a criminal case, however serious, in the
magistrates’ court. Where the case is ultimately dealt with depends in part on the
category into which the offences charged fall. There are three categories:
 Summary offences: the least serious category, encompassing most driving
offences, minor public order offences, etc.
 Indictable-only offences: the most serious category, encompassing offences
such as rape, robbery and murder.
 Either-way offences: the intermediate category, encompassing offences that
can be serious or minor depending on the facts of the particular case – theft,
for example, and assault occasioning actual bodily harm.
If an adult appears in the magistrates’ court charged with an indictable-only offence
he will be sent to the Crown Court to be dealt with there. If he only faces one or more
summary offences he will be dealt with in the magistrates’ court. If the most serious
offence he faces is an either-way offence then he could be dealt with in either court:
if the magistrates take the view that the case is too serious for them to deal with
(because their sentencing powers are limited) they will send him to the Crown Court;
but even if they agree to deal with it, he can still choose to be tried in the Crown
Court by a jury.
Juveniles (aged 10-17) generally make their first appearance in the youth court. If
they do, they will be dealt with in that court unless the magistrates take the view that
the case is too grave for them to deal with (and it would have to be very grave for
them to take that view). If they do, then the case is sent to the Crown Court.
Juveniles only make their first appearance in the adult magistrates’ court if they are
jointly charged with an adult or the charge they face is related to that faced by an
adult. In those circumstances, if the juvenile and the adult are pleading not guilty, the
juvenile will most frequently end up being tried alongside the adult, wherever the
adult is required or chooses to be tried. If the juvenile is convicted in the adult
magistrates’ court, he will frequently be sent to the youth court to be sentenced, as
the adult magistrates’ court has very limited powers when it comes to sentencing
juveniles (see section K below). If he is convicted in the Crown Court, the Crown
Court judge will usually sentence him, as the Crown Court Judge can pass any
sentence a youth court can pass.
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References
In this handout the following abbreviations are used:
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CJA = Criminal Justice Act 2003
SA = Powers of Criminal Courts (Sentencing) Act 2000
B. WHY START WITH SENTENCING?
Even though sentencing is something that happens at the end of the process, when
you are defending in a criminal case you need to consider from the moment you pick
up the brief what sentence your client is looking at if convicted. There are a number
of reasons for this:
 When you first meet the client he’s likely to ask you
That might be the day after his arrest when you go to see him in the cells in
the magistrates’ court. Or it might be in conference in chambers after he’s
been sent to the Crown Court for trial. Whenever it is, you must be ready with
an answer. You will look foolish and unprofessional if you don’t have one.
NEVER SEE A CLIENT WITHOUT BEING READY TO ADVISE ON
SENTENCE.
 You’ll need to know if you’re making a bail application
At the start of the criminal process you will often be required to make a bail
application on behalf of the client. The fact that he is unlikely to go inside if
convicted will always be a powerful, and often a conclusive, argument for the
grant of bail prior to the trial. The fact that he will go inside for a long time if
convicted may be a powerful argument for a prosecutor to say he won’t turn
up if given bail.
 You’ll need to know if you have to argue whether the magistrates should
agree to deal with an either-way offence.
As you’ve seen, in relation to either-way offences the magistrates have a
choice as to whether or not they should agree to deal with a defendant’s
case. If they don’t agree, then they’ll send him to the Crown Court to be dealt
with. It will depend on how serious the offence is (is it theft of a hundred
pounds or of a hundred thousand pounds?). In deciding whether they should
deal with the matter they have to decide whether their limited sentencing
powers are sufficient for this particular case. If you are going to argue that
they are, you need to know the sort of sentence the offence might attract.
 At an early stage of the proceedings you will have to advise a client on
whether to plead guilty or not guilty. When giving that advice you are obliged
to advise him that he will receive a discount if he pleads guilty.
He will want to know – a discount on what?
Of course you will never be able to give a definitive answer as to what sentence the
client will receive. But you should be able to hit the right ball-park.
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C. PROCEDURE BEFORE SENTENCE AND PASSING SENTENCE
Imagine that the defendant you are prosecuting or defending has been convicted of
or pleaded guilty to one or more criminal charges, and that the court (whichever one
he’s in) has now to consider what sentence to pass.
The procedure governing the sentencing process varies slightly between those
cases where the court requires ‘reports’ and cases where it doesn’t. Sometimes
before passing sentence a court will wish to read a report prepared on the offender
by a probation officer. Or it may wish to have the benefit of other reports, for
example by a psychiatrist.
1. When will the court require a ‘report’?
No report(s) required
If the case is very straightforward the court will often sentence immediately after the
plea of guilty or the announcement of the verdict: a court sentencing for careless
driving doesn’t need to order a report from a probation officer or a psychiatrist before
fining the defendant and endorsing his licence; or if an adult defendant is convicted
of stealing thousands of pounds from an elderly and vulnerable victim, the court may
well decide to send him to prison straight away. It will do so if it takes the view that it
knows enough about him to know that a report from the probation service is not
going to affect the sentence.
Report(s) required
In less straightforward cases the court will often want to read a pre-sentence report
or ‘PSR’ (that is a report prepared by a probation officer or an equivalent officer in
the case of certain juveniles), perhaps to try and get to the bottom of the defendant’s
offending with a view to exploring more imaginative interventions than custody. Or
the court may require a psychiatric report or some other report to assist in passing
the right sentence.
As we shall see in a moment, there are some circumstances in which a court cannot
pass sentence without one or more reports. However, even if not required to do so
the court always has a discretion to order any such report to be prepared in
appropriate cases.
Where the court decides to order a report it will generally have to adjourn the
case for the report to be prepared – in the case of a PSR, usually for 2 or 3 weeks.
Occasionally a report will have already been prepared by the date of sentence, and
so no adjournment is required. In the case of PSRs, that will only happen in cases
where the officer preparing the report has been told in advance that the defendant
will be pleading guilty and the court is likely to need one.
Sometimes as defence counsel you will want the court to order a PSR or some other
report and the court may be reluctant to do so - usually because it takes the view
that there is no alternative to an immediate custodial sentence, so why waste time? It
is your job then to persuade the court that it would not be a waste of time as a report
may significantly affect the type or severity of the sentence.
Finally, where the court either decides, is persuaded or is required to order a PSR,
the judge or magistrate will frequently say to the defendant immediately before
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adjourning the case that the fact that a report is being ordered does not necessarily
mean that a non-custodial sentence will be passed and that “all options remain
open”. This avoids the defendant getting his hopes up and subsequently appealing a
custodial sentence on the basis that he was given a legitimate expectation that he
wouldn’t be locked up.
Where the court cannot sentence without a PSR
In the following circumstances a court cannot pass sentence without a PSR (s.156
CJA):

In the case of an adult, where the court is considering passing a custodial or
community sentence, unless in the court’s opinion it is unnecessary to obtain
one
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In the case of a juvenile where the court is considering passing a custodial or
community sentence, unless in the court’s opinion it is unnecessary to obtain
one having had regard to a previous PSR obtained in relation to the same
offender (i.e. one prepared in relation to some previous offence for which he
was sentenced)
Where the court cannot pass sentence without a medical report
A court cannot pass sentence without a medical report dealing with the defendant’s
psychiatric condition where it proposes to make any order requiring the offender to
undergo psychiatric care or treatment.
A court cannot pass a custodial sentence on someone who is apparently mentally
disordered, unless in the circumstances it is unnecessary
How does the procedure differ between cases where reports are required and cases
where they are not?
If, following the guilty plea or the conviction, the court agrees, or is persuaded by the
defence, that reports are desirable it will generally adjourn without the prosecution
‘opening’ the case as described below. The case will then be opened fully at the
adjourned hearing when the court is in a position to proceed to sentence.
2. The sentencing hearing
(a) Prosecution opening
First, the prosecution advocate will “open” the case for the prosecution. That means
that the advocate will give the court the information it needs from the prosecution
perspective to sentence the defendant. The prosecution opening will contain a
number of elements:
Summary of the facts of the offence(s)
If the defendant has pleaded guilty the advocate will give the court (orally) a
summary of the prosecution’s case based on the prosecution’s witness statements (if
you look at the case summaries accompanying the sentencing conference – SGS1 you will find examples of the type of material included in a prosecution opening). The
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advocate will be sure to include all of those features of the story which aggravate the
offence (for example, that the victim was elderly and vulnerable), and it is proper to
include evidence which clearly mitigates the offence (for example, the fact that D
expressed immediate remorse).
If the defendant pleaded not guilty but has been convicted after a trial it is not
necessary for the prosecution to open the facts, provided that the magistrates or
judge passing sentence presided over the trial. It will be the same magistrates or
judge passing sentence if sentencing takes place immediately after the guilty verdict
is announced (i.e. without adjourning for reports). However, if the case is adjourned
for reports it may be a different bench passing sentence. This is rarely the case in
the Crown Court, but frequently happens in magistrates’ courts.
Impact on victim
As well as a statement from the victim of the crime setting out what s/he can say
about its commission, the police should also obtain a ‘victim personal statement’ (a
VPS), dealing with the impact of the crime - physical, emotional, financial or other.
The victim can express a preference as to whether to read aloud the statement
him/herself as part of the sentencing hearing, or whether the prosecutor should read
it aloud, or whether it should not be read aloud, but the court should simply be invited
to take it into account. The court will follow the victim’s preference unless there is
good reason not to. The court should not sentence on the basis of assumptions
about the impact of the offending unsupported by evidence contained in a witness
statement, unless clear inferences about that impact can be drawn. Generally
speaking the court should not take into account the view of the victim or his relatives
on the proper sentence. They are likely to be based on emotion rather than reason
(see generally CPD VII F).
Antecedents
After dealing with the offence and its effects the advocate will turn to the defendant’s
‘antecedents’. The advocate will tell the court some of the relevant details about his
background (importantly his age, address, employment, and whether he has been on
bail or in custody pending sentence) and read out or summarise a list of his previous
convictions if any (the prosecution will provide a list for the court). The court needs to
know about the defendant’s previous convictions as it obliged by s.143 of the CJA to
treat each previous conviction as an aggravating factor if it can reasonably be so
treated. So for example, if someone is convicted of downloading child pornography a
recent conviction for sexual assault will be an aggravating factor, whereas an old
conviction for shoplifting won’t be.
Sometimes a conviction on the list will be marked as ‘spent’. Under the Rehabilitation
of Offenders Act 1974 an offender is entitled not to disclose an offence, or for it to be
ignored, in certain circumstances after a period of time has elapsed (the period of
time will depend on the sentence passed). So for example, in applying for certain
jobs an offender doesn’t have to disclose a ‘spent’ conviction. However the Act
specifically excludes criminal proceedings from the operation of the Act. The court is
entitled to know about all convictions, spent or not. Despite this, criminal courts try to
follow the spirit of the Act and a spent conviction should not be referred to if it can
reasonably be avoided (which it usually can be).
Sentencing powers and ancillary applications
Prosecution counsel should maintain a neutral attitude to sentence. He is there to
present, fairly and impartially, the prosecution’s case. He is a minister of justice who
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should not regard himself as appearing for one side or another. It is not counsel’s job
to press for a particular sentence.
The prosecutor can remind the court of its powers of sentence and of any sentencing
guidelines (though s/he still rarely does in straightforward cases, as the judge is
usually taken to know these matters). But counsel should be careful not to commend
a particular sentence where the law gives the judge a discretion.
However, the prosecutor can ask the judge to make orders which are considered
ancillary to the actual sentence. So if the sentence is prison or a community order
with an unpaid work requirement, ancillary orders would include orders for costs,
compensation, confiscation, forfeiture and restitution.
(b) Defence plea in mitigation
After the prosecution has opened the case it is for the defence to enter a plea in
mitigation, seeking to persuade the court, by reference to the facts of the offence
and the character, circumstances and history of the offender, to pass the most
lenient possible sentence.
Representation
The court cannot force someone to be represented and very often (particularly in
non-serious cases) defendants represent themselves. However, if the court is
considering passing a custodial sentence on a juvenile (i.e. under-18) then it must (i)
inform D of his right to apply for free legal representation and (ii) give him the
opportunity to make the application. In relation to an adult these two requirements
only exist if he has not been sentenced to custody before (SA s.83)
3. How the court decides on what factual basis to pass sentence
This important subject has been thoroughly reviewed in the case of R v Cairns
[2013] EWCA Crim 467.
As we have seen, in most cases the courts forms its view as to how the crime came
about (a) where there has been a trial, by hearing the evidence, and (b) where there
has been a plea of guilty, by listening to the prosecution’s oral summary of the facts
at the start of the opening.
However, it is frequently the position that the defendant has no defence to a
particular charge (and therefore must plead guilty) but he disputes the prosecution’s
version, or interpretation, of events. Or he offers an explanation for his offence which
is not positively supported by the prosecution’s evidence. Take some examples:
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D is charged with an assault. The prosecution’s case is that it was an
unprovoked attack in which D punched the victim five times. The defendant’s
case is that victim provoked him and that he only punched him once.
D is charged with possession of 1000 ecstasy tablets with intent to supply.
The prosecution say the defendant is a dealer. The defendant says, “They
were not mine - I was looking after them for someone else”.
D is charged with possessing a firearm without a certificate. He says that he
found it dumped in his garden in a bin liner the day before his arrest and he
was going to hand it in to the police.
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D is charged with a single count of theft of £5,000. He agrees he stole the
money, but says it was only £500.
In each of these cases the defendant has no defence to the charge (in the second
case, possession of someone else’s drugs with intent to return them to the owner
amounts to possession with intent to supply). But if the judge accepts the
defendant’s version of events then it may make a substantial difference as to the
sentence passed. How does the judge decide on what factual basis to pass sentence
when there is a dispute between the prosecution and the defence?
Reaching an agreed basis of plea
Before the defendant enters his plea of guilty there will have been discussion
between both sides as to the “basis of plea”. The defence will make representations
to the prosecution as to why they should accept the defence version of events –
pointing to weaknesses in the prosecution’s evidence on any disputed matter, and
perhaps disclosing defence evidence for the prosecution to consider. Sometimes
there may be a process akin to ‘bartering’ so that an agreed basis of plea is
eventually reached (perhaps, in the first case above, two punches and minor and
inadvertent provocation). But the prosecution should only seek to agree a basis
which is true and not one that is merely convenient.
If the defence put forward a basis of plea which is not contradicted by the
prosecution’s evidence, that does not mean the prosecution have to accept it. The
prosecution may choose to accept it if it seems reasonable. But if they are
concerned that the defendant is simply trying to minimise his culpability with a cock
and bull story (as in the third bullet point above) they can invite the judge not to
accept that basis of plea unless the defence call evidence in support of it in a
Newton hearing (see below).
Where there is an agreed factual basis of plea that should be reduced to writing and
signed by both counsel.
Where such a basis is agreed the judge does not have to accept it. Say the
prosecution accept the defendant’s version of events about the gun (the third case
above). The judge may think that on the face of it that version of events is very
dubious and that for him to sentence on that basis may involve the court in a sham
exercise. He can override the agreement and direct a Newton hearing (see below).
One final point here. The defence are usually keen to agree a basis of plea and to
avoid a Newton hearing if at all possible. The reason for this is that, as you will see,
defendants generally receive substantial credit for pleading guilty in the form of a
discount on their sentence. If a Newton hearing takes place and the defence lose it,
any credit for having pleaded guilty is likely to be substantially reduced.
Where no basis of plea is reached
Where the prosecution and defence cannot agree a factual basis then the defence
must put in writing the defendant’s basis of plea and that document should clearly
identify the factual disputes between the parties. The defence can then try to
persuade the judge by oral representations to accept the defendant’s basis of plea. If
it fails, then a Newton hearing is likely to follow.
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Newton hearings
A Newton hearing (called after the case of that name) is a way for the court to
resolve outstanding factual issues when a defendant has pleaded guilty. As we’ve
just seen, they may be outstanding because the parties cannot reach agreement or
because the court won’t accept the agreement reached.
A Newton hearing is conducted in the Crown Court by a judge sitting alone (no jury).
In the magistrates’ court the hearing is before the sentencing magistrates. The
prosecution places before the court any evidence that is relevant to the issue to be
decided, calling live any witnesses whose evidence is not agreed. Those witnesses
are examined and cross-examined as in a trial. Then the defence can call what
evidence it wishes to call in the same way. If the defence decline to call any evidence
then the court can draw what inferences it deems appropriate from the failure to do
so. In the second case, for example, if the defence declined to call the defendant to
give evidence as to the ownership of the drugs, the court would probably conclude
that the drugs were his.
At the end of hearing the evidence the court will listen to representations from
counsel and then announce its finding on each issue of fact. The court must apply
the normal burden and standard of proof in a criminal case: it is for the prosecution
to prove its version of the disputed fact beyond a reasonable doubt.
Must the court always hold a Newton hearing where there are unresolved disputes
as to fact?
No.
The court need not hold a Newton hearing to resolve disputed facts in the following
situations:
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If the court is persuaded by the defence to pass sentence on the defence
basis of events without hearing evidence (usually for the reason given at the
next bullet point).
If the disputes as to fact are so insignificant that they won’t make any
difference to sentence (say the dispute is as to whether there were four
rather than six punches).
If the defence version of events is manifestly absurd. If, for example, the
defendant accepts that he caused the extensive bruising up and down the
victim’s body, but insists that it was caused by only one punch, the judge is
entitled to reject that account without hearing evidence.
But where the resolution of the dispute will affect the sentence, and the defence
version of events is not absurd, then the court cannot resolve it in favour of the
prosecution without holding a Newton hearing.
There is one other way of avoiding a Newton hearing where there is a significant
dispute as to the facts. Occasionally the allegation that the defence disputes
amounts to a separate criminal offence which has not been separately charged. Say,
for example, the defendant is charged on an indictment with one offence of robbery
to which he has pleaded guilty. The prosecution say that he threatened the victim
with a flick knife. He admits threatening her, but denies having a knife. This is going
to make a difference to sentence. Here, rather than the judge holding a Newton
hearing without a jury, the better course would be to add a count to the indictment
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alleging possession of an offensive weapon – an offence contrary to s.1 of the
Prevention of Crime Act 1953. A jury could then be empanelled to try the issue of
whether he had a knife.
The factual basis of sentencing where the defendant pleads not guilty but is
convicted
Even where a defendant is convicted after a trial there may be room for argument
about what exactly happened. If the defendant was convicted of assault, for
example, there may have been differences between prosecution witnesses as to how
often he struck the victim and whether a weapon was used. Where the magistrates
tried the case they will have formed a view as to these facts and will proceed on their
view. When a jury convicts the judge must proceed on a basis that is consistent with
the verdict but on his own view of the facts: he is not entitled to ask the jury for their
view on those specific matters.
4. Indications as to sentence
The courts are very keen that people who are guilty should plead guilty. It saves time
and money. As you will see later, defence counsel is obliged to advise every client
that if he pleads guilty he will get a discount on any sentence received. Given that
advice, sometimes the only thing holding a defendant back from pleading guilty is the
fact that he doesn’t know precisely what the sentence would be. You may have
advised a client that, if he’s lucky, then this particular judge will give him a community
sentence rather than sending him inside; or another client that he’s looking at a
sentence of between eighteen months and three years. But without asking the judge
what sentence he would pass if the client pleaded guilty you often can’t be more
precise than that. So the client will often enquire whether you can ask the judge.
The answer is, yes. The formal procedure for seeking an indication as to sentence is
to be found in the case of Goodyear [2005] ECWA Crim 888, the Crim PR r.3.23 and
CPD VII C. The essential elements are as follows:
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Defence counsel should not seek an indication except on the client’s
instructions (which should be endorsed on counsel’s brief).
Defence counsel should make sure D understands the legal effect of such an
indication.
The application should be in writing and served on the court and the
prosecution.
Defence counsel should not seek an indication without agreeing the factual
basis of the proposed plea with the prosecution: the agreed basis of plea
should be put in writing. However, an indication can be sought where any
difference between the prosecution and defence versions would be
immaterial to sentence. In that case, the difference must be recorded in the
application for the judge to consider.
An indication should be sought in open court.
The judge is perfectly entitled to refuse to give an indication without giving
reasons.
The judge should not give an indication unless satisfied that he has read all
of the relevant information – in particular the prosecution evidence, the victim
personal statement and the defendant’s antecedents.
If the judge does give an indication it should be done in open court.
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An indication should normally be confined to the maximum sentence the court
would pass if the defendant pleaded guilty at this stage of the proceedings.
The judge will give the defendant a fair chance to consider his position –
though almost invariably the defendant will make his decision then and there,
or, at least, on the same day.
If the defendant maintains a plea of not guilty (usually because he doesn’t
like the indication and decides to take his chances and fight the case) then
the indication has no effect. If he’s convicted the judge can ignore the
indication.
If the defendant pleads guilty then the judge is bound by the indication. If he
adjourns for a PSR and the case comes back before a different judge, then
the new judge is bound by the indication. The judge may decide, having
heard the mitigation, that he can pass a lesser sentence than that indicated:
but he can’t pass a greater one.
The prosecution’s role is reactive. The prosecutor should ensure there is an
agreed basis of plea, and, if there isn’t, draw that fact to the court’s attention;
should ensure that the judge has access to the evidence, the victim personal
statement, and the antecedents; and should make the court aware if this is a
case requiring a minimum or mandatory sentence.
5. “TICs” and “Sample Offences”
Imagine that the defendant, a prolific burglar, is arrested for two offences of burglary.
He makes a full and frank confession to the police. He knows that he will end up
serving a prison sentence for them. He also knows that he has committed a dozen
other burglaries which he has not yet been linked to, but which may come back to
haunt him after he’s served his sentence. Rather than risk being charged with those
offences months or years down the line, he decides to confess to them all now. That
way he is wiping the slate clean: when he comes out of prison he needn’t worry
about them.
In these circumstances the prosecution will often charge the defendant with two or
three of the offences. They will then draw up a schedule of offences to be taken into
consideration by the court when passing sentence (hence “TICs”). At the beginning
of the sentencing exercise, after the defendant has pleaded guilty, he will be asked
in open court whether he has received the schedule and wishes the court to take the
additional offences into consideration when passing sentence. If he says he does
then in the course of the opening the prosecutor will briefly summarise the TICs,
having dealt in more detail with the offences charged.
The court will only pass specific sentences in relation to the offences charged, but in
doing so will take into account the other offences. Though the court may increase
the sentence to reflect the TICs the increase will often be relatively minor and it is
therefore often in the defendant’s interests to wipe the slate clean in this way. (For
more on this you might like to refer to the Sentencing Council’s guideline “Offences
Taken into Consideration and Totality” effective from June 2012).
Where D is prepared to agree to the other offences it is not strictly necessary to draw
up a TIC schedule. The prosecution can simply tell the judge that the offences
charged are “sample” or “specimen” offences.
Whichever procedure is used, the judge cannot take into account the offences not
charged unless the defence agrees.
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6. Deferring sentence
Sometimes in the course of mitigation on behalf of someone facing custody it may
be claimed that in recent days or weeks he has “turned a corner” – for example, by
finding employment, or by giving up drinking and attending alcoholics anonymous.
The court may take the view that, if he really has turned that corner, they may be
able to pass a non-custodial sentence. But it is too soon to make that assessment. In
those circumstances Parliament has provided (SA s.1) that the court can defer
sentencing the defendant for up to six months. They should tell him why they are
deferring sentence and what conduct is expected of him (e.g.to see if he can hold
down a job and stay off the booze). If at the end of the period the court determines
that he has complied (it will be assisted by a further report from the probation
service) it should not pass a custodial sentence.
If he commits an offence during the deferment period he is liable to be sentenced
straight away for the new offence and for the original offence for which sentence was
deferred.
7. Passing sentence
The judge will usually pass sentence once the defence have concluded their plea in
mitigation.
The judge should explain to D in layman’s terms why she has passed this particular
sentence (and – if it’s a custodial sentence – why the threshold has been crossed),
and what the effect of the sentence is. The judge should explain what reduction has
been given for a guilty plea and what mitigating/aggravating features were
particularly compelling.
D. THE PURPOSE OF SENTENCING
Before considering the sentences available to the courts you should remind yourself
of the purposes of sentencing.
The list of purposes for adults appears in s.142 CJA 2003:
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
Punishment
Reduction of Crime
Reform
Rehabilitation
Protection of Public
Reparation
One commentator has said, “The best that can be hoped for is that nobody refers to
it because it has no practical relevance”. The fact is, we all know what the theoretical
purposes of sentencing are. The difficulty is how to resolve them when they conflict:
do you put the habitual crack-addicted burglar into rehab, or do you punish him by
locking him up? The list doesn’t help you resolve that.
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In the case of youths the position is different, because the sentencing regime is
informed by one consideration which is more important than the others: the principal
aim of the system is to divert youngsters from offending. Courts will bend over
backwards to prevent young people from the criminal justice system by encouraging
them to become decent adults. But if that hasn’t worked, or if the youth has
committed a crime so serious that immediate custody is called for, then he will be
locked up.
When it come into force s.142A CJA will set out in one place the aims a court must
have in mind when sentencing youths. It is not yet in force because as drafted “the
other purposes of sentencing” in the case of youths include everything that is in
s.142 (above) apart from “reduction in crime”. There is at the time of writing a debate
as to whether the section should be amended to include that as well (the question
being whether it is right to make the sentence more severe on this particular juvenile
in order to deter others).
Summary of s.142A
The principal aim of the youth justice system:

to prevent offending by children and young persons
(Crime and Disorder Act 1998)
Sentencing court must always consider

the welfare of the child or young person
(Children and Young Persons Act 1933) and

the other purposes of sentencing (s.142A CJA)
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E. THE AVAILABLE SENTENCES
The sentences most commonly available to the courts are set out in the following
table. Note the categorisation of custodial sentences, community sentences, and
others.
COMMON SENTENCES
Adult (18+)




Juvenile (10-17)






Absolute discharge
Conditional discharge
Bind over
Fine


Community order
-
unpaid work
rehabilitation activity
programme
prohibited activity
curfew
exclusion
residence
foreign travel
prohibition
mental health
treatment
drug rehabilitation
alcohol treatment
alcohol treatment and
monitoring
attendance centre
(up to age of 25)
electronic monitoring
Absolute discharge
Conditional discharge
Bind over
Fine
Referral order
Reparation order
Youth Rehabilitation Order
-
Community
sentences
-




14
Suspended sentence
Imprisonment (21+)
Detention in a young
offender’s institution
(18-20)
Custody for life (1820)
Custodial
sentences



unpaid work (16/17 years)
activity
programme
prohibited activity
curfew
exclusion
residence
mental health treatment
drug testing
drug treatment
intoxicating substance
treatment
supervision
attendance centre
local authority residence
education
electronic monitoring
intensive supervision and
surveillance
fostering
Detention and training order
12+
s. 91 detention 10+
Detention at Her Majesty’s
pleasure
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The following diagram illustrates the use of common sentences:
7%
Prison
8%
Discharge
13%
Community Sentence
71%
Fine
F. SENTENCES WHICH ARE NEITHER COMMUNITY NOR CUSTODIAL
1. Absolute discharges
The court discharges D without any adverse consequences. Absolute discharges are
pretty rare as they are only used where D hasn’t really done anything which people
would regard as culpable (google the Thirsk Rail Crash of 1892 for an interesting
example of someone being absolutely discharged for offences of manslaughter).
Most cases where D is only technically guilty of an offence are filtered out before
they get to sentence – either because the police don’t charge them or because, on
public interest grounds, the CPS doesn’t pursue them.
2. Conditional discharges
The court discharges D without punishment on condition that he commits no offence
for a period fixed by the court of up to three years. If he does commit an offence
during that period, he is liable to re-sentenced afresh for the offence for which he
was conditionally discharged (in addition to being sentenced for the new offence).
The court doesn’t have to re-sentence: but it may do. The court dealing with the
breach can impose any sentence for the breach which the original sentencing court
could have imposed (so a Crown Court dealing with the breach of an order made by
the magistrates’ court is restricted to the lower court’s powers)
Conditional discharges are common. They are particularly useful for a first-time
offender who has committed a “real” criminal offence but a relatively minor one. By
“real” criminal offence is meant an offence like shoplifting or threatening behaviour,
as opposed to offences which people often don’t regard as criminal, such as
careless driving. The court may feel that this defendant has already received a wakeup call by being arrested and prosecuted and that a conditional discharge will further
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help to divert him from the criminal justice system and deter him from future, more
serious, offending. The sentence has the advantage of
 hanging over D a bit like a suspended sentence and therefore acting as a
deterrent;
 allowing D’s speedy rehabilitation (the conviction is generally “spent” when
the discharge period expires).
A conditional discharge should not be combined with another sentence (e.g. a fine)
for the same offence (though the court can make an ancillary order, such as
compensation).
3. Bind overs
A person who has been convicted may be “bound over to keep the peace”. That
generally involves him giving undertakings to the court to keep the peace for a
specified period of time and to pay a specified sum of money should he fail to do so.
The specified period and amount is determined by the court. A bind over is only
appropriate upon conviction where the offence is a relatively minor one, usually
involving violence or the threat of it, in circumstances which give rise to fear of
further violence. The classic example would be an offence arising out of antagonism
between neighbours where they have to continue living next to each other. D may be
bound over to keep the peace for twelve months in the sum of £200. He will leave
the court without paying a penny: but if he breaches the peace during the next twelve
months he’s liable to forfeit the £200.
Anyone appearing before a court can be bound over – whether convicted or not, or
whether a defendant or not. For example, a magistrate may acquit the defendant of
assaulting his neighbour but still bind the defendant over if there are grounds for
fearing that on leaving the court he will continue the feud. And the magistrate may
bind over the neighbour if he appears before the court as a prosecution witness –
again if he fears the neighbour might cause a breach of the peace.
Often in this sort of case, rather than prosecute, the CPS will agree to drop the
prosecution against the defendant if he agrees to be bound over to keep the peace.
4. Fines
This is the commonest type of sentence: see the diagram above. That’s not
surprising when you consider that most driving offences will automatically attract a
fine.
Fines are generally used where the offence is not serious enough for a community or
custodial sentence, but where a conditional discharge or bind over is not appropriate.
A conditional discharge will be inappropriate where, for example, the offence, though
a first offence, is too serious not attract some immediate punishment (assaulting a
police officer would normally be so regarded).Or where it is an offence of shoplifting,
but the defendant has already been conditionally discharged for a previous offence
of shoplifting. Or for minor driving offences where a penalty of some sort is generally
regarded as a necessary deterrent to motorists.
It is permissible to fine someone and give him either a community or a custodial
sentence for the same offence.
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If the offence is a summary offence the maximum fine that can be imposed is
determined by reference to a standard scale. A level 1 offence, attracts a maximum
fine of £200; level 2, a maximum of £500; level 3, a maximum of £1000; level 4, a
maximum of £2500; level 5, an unlimited amount
There is generally no limit the magistrates can impose for an either-way offence.
In the Crown Court there is no limit to the amount a judge can fine for an either-way
or indictable-only offence (Balfour Beatty were fined £7.5 million for their part in the
Hatfield rail crash).
Juveniles (i.e. under-18s) can be fined (up to £250 if 10-13 and up to £1000 if 1417). Parents must pay the fines of juveniles under 16. If the juvenile is 16 or 17 the
court can make either the juvenile pay or the parents pay.
When deciding on how much to fine the court must take into account, in addition to
the seriousness of the offence and any mitigating features, the financial
circumstances of the offender (s.162 CJA). A £100 fine will be more onerous on
someone who is poor than someone who is rich. On the other hand, the court cannot
increase the fine so that it is out of all proportion to the seriousness of the offence,
just because D is rich. It would be quite wrong, for example to fine a rich person
£2,000 for stealing a pint of milk from a shop, even if he would not struggle to pay
the fine.
If you are mitigating on behalf of a client who is facing a fine you must take careful
instructions and be in a position to inform the court of his income and outgoings and
any readily disposable assets. Where the court does not have sufficient information
about D’s financial circumstances (usually where he is unrepresented) it can make a
‘financial circumstances order’ requiring D to draw up a clear statement of his
circumstances.
Generally a court will grant time to pay and when it does so it will either set a period
within which the entire sum must be paid or it will order the sum to be paid by fixed
instalments. The Magistrates’ Courts Sentencing Guidelines suggest that any fine
should be capable of being paid within 12 months. The CA has suggested that this is
not a rule of law and that often a longer period will be appropriate.
Whilst you should be able to advise on whether or not your client is facing a fine, you
are not expected on this course to be able to advise accurately on the precise
amount of the fine. That is learnt principally through experience and by asking
around among colleagues. But you should appreciate this. If you go into a criminal
set of chambers 90% of your clients will have very little in the way of a weekly
disposable income (i.e. what’s left over when living expenses are deducted). They
may have a few pounds left over per week. As a matter of principle any fine imposed
should be payable within a relatively short finite period (as noted above, in the
magistrates’ court 12 months is generally seen as the acceptable maximum period).
So often your client’s disposable income of say £5 or £10 a week will effectively cap
the level of the fine that can be imposed.
A few words about enforcement of fines. At the same time that it fines an adult
defendant the Crown Court must fix a custodial term to be served in default of
payment (the term depending on the amount of the fine). So, for example, the judge
might impose a fine £1,000 with 28 days in custody should D fail to pay. The
magistrates’ court will generally not fix a term to be served in default at the time that
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it imposes the fine (it can only do so on rare occasions). But the magistrates’ court
monitors the payment of all fines, and if D fails to pay then ultimately the magistrates’
can send D inside for failing to pay.
As counsel you will not generally be involved in proceedings to enforce the payment
of fines. But you should always advise a client as to the importance of keeping up
payments and that if they get into difficulties they should apply to the court to vary
the order. If they don’t pay, the ultimate sanction is custody.
5. Referral orders and reparation orders
As can be seen from the table of common sentences, these are non-community
sentences exclusive to juveniles. A detailed description is unnecessary as they do
not appear on the syllabus. In brief:
When a court makes a referral order in relation to a juvenile it simply refers the
juvenile to a youth offender panel (consisting of people with an interest in dealing
with young people) and – hopefully - has nothing more to do with him. The panel will
draw up a ‘contract’ with the youth setting out various requirements aimed at
addressing his behaviour.
A reparation order can be made in relation to a juvenile of any age, generally
requiring him to do unpaid work representing reparation to the victim or the
community.
G. COMMUNITY SENTENCES
If you look back at the table of Common Sentences you’ll see that there is one
community sentence for adults (the community order) and one for juveniles (the
youth rehabilitation order). A court passing either of these sentences will attach to it
one or more of the requirements from a ‘menu’ of possible requirements. The items
on the menu are set out in the table.
Threshold requirements
A court cannot pass a community sentence unless the offence was, on its own or
when looked at with other offences, “serious enough to warrant such a sentence.”:
s.148 CJA.
A court cannot pass a community sentence unless the offence is punishable with
custody (so, if the maximum sentence prescribed by statute is a fine, there cannot be
a community sentence): s.150A CJA. There is one exception (in s.151). If D has
committed a non-imprisonable offence (e.g. using abusive words contrary to s.5
Public Order Act), and is a persistent offender who has been fined at least three
times previously since reaching the age of 16, then the court can make a community
order (as fining him clearly isn’t working).
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Important aspects of community orders (i.e. community sentences for adults)
Some of the most commonly met aspects of the community order are set out in the
following table. We are concentrating on community orders (for adults), as youth
rehabilitation orders (for juveniles) are not on the syllabus. But they work in a very
similar way.
Note that in determining how onerous a community order should be the court may
take into account any time the defendant has spent on remand in custody prior to
sentence (s.149 CJA).
So far as adult community orders are concerned, they must include at least one
requirement imposed for the purpose of punishment, or a fine, or both, unless there
are exceptional circumstances which would make it unjust (s.177 CJA). So if a drug
addict burgles a house and receives a drug treatment order, he must also receive,
for example, an unpaid work requirement or a fine.
In the right hand column the table sets out some of the maximum/minimum periods
specified by statute in respect of specific requirements. You should memorise them.
COMMUNITY ORDERS
The maximum period for a CO is 3 years.
A CO is a type of “community sentence”.
Therefore:
- the offence/s must be serious
enough to warrant it (s.148 CJA)
- the restrictions imposed on D’s liberty
must be commensurate with the
seriousness of the offence/s (s.148
CJA)
UNPAID WORK



REHABILITATION ACTIVITY


- The court generally must (and in
practice always will) consider a presentence report (s.156 CJA)
Opposite is a list of the possible
requirements that can be included alone or
in combination in one of the orders together
with some examples of the requirements.
Where statute has laid down max/min
periods, they are given. Below you’ll find
what happens when D doesn’t comply.
Cleaning up graffiti
Painting old people’s home
40-300 hours
Attend appointments with probation
officer
Participate in activities such as an
adult literacy or computer skills
programme; and repairing physical
damage caused by D’s crime
PROGRAMME



Domestic violence programme
Anger management programme
Drink driver programme
PROHIBITED ACTIVITY

Not to contact a particular person
COMMUNITY ORDERS (ADULT)
CURFEW
Breaching a community order: Sch 8 Part 2
CJA 2003
If D fails to comply with the order the
probation officer will give him a warning. If


Useful for night-time offenders – e.g.
burglars and car thieves – requiring
them to be indoors at specified times.
Electronic monitoring generally
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within a year of that he fails again to comply
the enforcement officer will consider
whether o seek a summons to bring him
back to the court – generally the one that
sentenced him. If the breach is proved to
the court’s satisfaction, the court must
- impose more onerous requirements,
or
- revoke the order and re-sentence or
- impose a fine for the breach, not
exceeding £2500 or
- where the offence is nonimprisonable (see ‘threshold
requirements’ above) and D has
wilfully and persistently failed to
comply, impose custody up to 6
months.
Re-offending: Sch 8 Part 5 CJA
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

EXCLUSION






DRUG REHABILITATION and
ALCOHOL TREATMENT
If the old order was made by the Crown Court
and the defendant was convicted of the new
offence by the magistrates, they will commit
him to the Crown Court for sentence. The
Crown Court, when dealing with an old Crown
Court order can do any of the above.

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Max period 12 months
MENTAL HEALTH TREATMENT

Sometimes, where D makes very good
progress, or his circumstances change, it is in
the interests of justice for the order to be
revoked. Either D or the probation officer can
make the application to the court.
May be a probation hostel
May be D’s own home
FOREIGN TRAVEL PROHIBITION
If the old order was made by the magistrates,
the sentencing court (whether Crown or
magistrates) can
- leave it running
- revoke it
- revoke and re-sentence
Revocation in the interests of justice: Sch 8
e.g. From the Dog and Duck public
house
Max period 2 years
Electronic monitoring often required
RESIDENCE
Often D is convicted of another offence whilst
a community order is still going (some of
them can run for up to three years). The new
offence is not a breach. The court that
sentences for the new offence has to decide
what to do with the old order.
Where your client is sent to prison for an
offence and there is a community order still
running simply ask the court to revoke it.
They always will.
required
2-16 hour curfew in any 24 hours
Max term 12 months
Both require D’s consent to submit to
treatment either on a residential or
non-residential basis
ATTENDANCE CENTRE

At the centre (which might be a
school building) D might participate at
weekends in simple physical
exercise, picking up litter in the
locality, etc
Available for under-25s only and for
periods of 12-36 hours
ELECTRONIC MONITORING

Not a separate punishment, but
method of enforcing other orders, in
particular curfews and exclusion
orders. A transmitter (or “tag”) is
attached to D’s ankle and this sends
signals to a receiver unit in D’s
house. If he goes out of range (or
removes the tag) there’s a break in
the signal which is monitored by a
private security company.
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H. CUSTODIAL SENTENCES: GENERALLY
“So serious”
The general rule is that courts cannot pass any form of custodial sentence unless
the offence is “so serious that neither a fine alone nor a community sentence can be
justified”: s.152 CJA
Sometimes an offence which wouldn’t be that serious on its own, becomes so when
it is one of a number of offences for which your client has to be sentenced. Say she
is charged with one offence of fraud by obtaining £60-worth of housing benefit by
deception. That wouldn’t generally merit a prison sentence. But if she’s done it every
week for 18 months and is charged with 78 offences totalling £4680 (or charged with
nine offences, with 69 taken into consideration) then a court might say that each
offence charged, when looked at with the other offences, is “so serious” as to require
a prison sentence.
How long?
The general principle contained in s.153 CJA is that if the court has to pass a
custodial sentence it must be for “the shortest term” that is “commensurate with the
seriousness” of the offence/s. That doesn’t much help you when advising a client
what sentence he’s looking at. But if a judge has in mind a sentence in the bracket
of, say, a year to eighteen months he should remind himself of the principle
contained in s.153.
Concurrent and consecutive sentences and the totality principle
Whenever a court passes a custodial sentence for more than one offence it’s got to
decide whether the sentences should run one after the other (consecutively) or at the
same time (concurrently).
Say a judge is faced with an inexperienced offender who has committed three
domestic burglaries. He takes the view that each burglary is worth in the region of 18
months’ imprisonment. He could pass three 18-month sentences to run
consecutively – making a total of four and a half years. But if he did that the total
sentence would be too long for this course of offending looked at as a whole. In
other words, it would offend the “totality principle”. One alternative would be to pass
three consecutive sentences of six months each – making a total of eighteen
months. But the judge might not want to do that because (a) six months is not
enough to mark the seriousness of each burglary looked at individually and (b) a
total sentence of eighteen months doesn’t properly reflect the fact that this was a
course of offending and not one single offence. So what he might do is pass three
concurrent sentences of two years, making a total sentence of two years. That would
not offend the totality principle, and the slightly longer sentence for each offence
would reflect the fact that it is one of a number of offences and not a one-off.
That illustration probably demonstrates that sentencing is not a science. It is
therefore very hard to give any rules as to when sentences should run consecutively
or concurrently. But certain principles have emerged from the case-law. And the
Sentencing Council has provided further guidance in 2012 guideline “Offences
Taken Into Consideration and Totality”.
Concurrent sentences will normally be appropriate where:
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

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The offences arise out of the same incident or facts (e.g. burgling a house
and stealing a car from the garage for use a getaway vehicle)
The offences are of the same kind and against the same victim (e.g. a
housing benefit fraudster, obtaining regular payments over a long period)
Consecutive sentences will normally be appropriate where (for example):
 The offences arise out of unrelated facts or incidents
 A suspended sentence is activated (the term will normally run consecutively
to any term imposed for the new offence/s (see below))
 D is charged with an offence and then attempts to pervert the course of
justice by destroying evidence against him
 D commits an offence whilst on bail for another offence
 D assaults an officer whilst trying to prevent his arrest for another offence
It should be remembered that, even where it is appropriate to pass consecutive
sentences, it is an overriding principle that the total sentence must not exceed what
the offences, looked at as whole, are worth (the “totality principle”).
I. CUSTODIAL SENTENCES FOR ADULTS (18+)
1. What’s the maximum sentence adults can receive?
The offence of murder attracts a mandatory life sentence (life imprisonment for
adults aged 21 and over, and custody for life for adults aged 18-20). The judge must
set a minimum term before which the offender can be considered for release on
licence (unless he considers life should mean life, in which case he will make a
‘whole life order’).
For the offence of manslaughter the judge has a discretion to pass a life sentence,
but he can pass any lesser sentence (custodial or not) that is appropriate.
Most offences are created by statute and generally the statute sets out the maximum
sentence the court can pass (anything from life downwards)
The Crown Court can pass up to the maximum sentence prescribed by statute.
The magistrates’ powers are limited. The table below sets out the powers of
magistrates sentencing an adult.
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MAGISTRATES’ SENTENCING POWERS FOR
ADULTS
The power of magistrates to sentence an adult is limited
as follows:

Sentence for a summary offence is limited to the
statutory maximum for that offence (which will
never be more than 6 months’ custody)

Sentence for an either-way offence is limited to
a maximum of 6 months’ custody for that
offence (even if the statutory maximum is much
longer)

When sentencing to custody for more than one
offence they can direct that the term for each
offence runs consecutively , but
a) if the offences are all summary or include only
one either-way offence the total cannot exceed
6 months;
b) if at least two are either-way offences the total
cannot exceed 12 months.
 The minimum prison sentence the magistrates
can impose for an offence is 5 days
N.B. It is very rare for a court to pass the maximum sentence available (particularly in
the Crown Court), and it is rarely appropriate to tell a client in conference what the
statutory maximum sentence is. It is your job when advising on sentence to
communicate to the client a sensible view as to the likely sentence. You should not
be advising a first-time burglar, “You could get anything up to 14 years for this.”
2. Minimum sentences
Parliament got fed up with what they saw as a lily-livered judiciary passing lenient
sentences for serious offences. So it introduced the idea of “minimum sentences” for
certain types of offence. They apply, for example, to particular firearms offences. But
for junior barristers the most important ones are these:
Class A drug trafficking: s.110 SA
If the judge is sentencing an adult for a Class A drug trafficking offence (e.g.
supplying cocaine, or possessing ecstasy tablets with intent to supply them) then,
unless it would be unjust, he must sentence him to at least seven years if the
following condition applies:

before the commission of the present offence he has committed and been
convicted of a Class A drug trafficking offence, and following that, committed
and convicted of another such offence.
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Domestic burglary: s.111 SA
If the judge is sentencing an adult for a domestic burglary then, unless it would be
unjust, he must sentence him to at least three years if the following condition applies:

between the end of November 1999 and the commission of the present
burglary offence he has committed and been convicted of a domestic
burglary, and, following that conviction, committed and convicted of another
domestic burglary.
A judge passing a minimum term under either of these sections can give a discount
for a guilty plea provided it doesn’t reduce the term to less than 80% of the minimum
term (discount for guilty pleas generally is considered later)
Threatening with an offensive weapon or with an article with a blade or point
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 inserted into preexisting Acts these two new offences of threatening someone unlawfully with an
offensive weapon or with a bladed/pointed article in such a way as to create an
immediate risk of serious harm.
The punishment includes a minimum sentence in each case of (in the case of adults)
at least 6 months’ custody (unless such a sentence would be unjust). Credit for a
guilty plea cannot reduce the sentence to less than 80% of that minimum term.
3. If adults get sent inside, where do they go?
If the adult is 18 or over but not yet 21 the sentence will be one of detention in a
Young Offender Institution.
If the adult is 21 or over the sentence will be imprisonment and s/he will go to an
adult prison.
If s/he celebrates a 21st birthday whilst serving a sentence of detention in a YOI s/he
will be transferred to an adult prison to finish the celebrations and the rest of the
sentence there.
4. “When will I be released?”
When you go and see your client in the cells after he has received a custodial
sentence he will want to know when he will be released. The rules are complex and
you do not need to know the details. But you will be able to advise with some
confidence if you understand the general principles set out in the next two numbered
sections. Note that ‘time spent on remand is included in the syllabus’ whereas the
early release provisions (‘remission’) are NOT included.
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5. Does time on remand count towards the sentence?
Frequently your client will have been remanded in custody for some time before
sentence is passed. She may have been in custody from the moment of her arrest. If
that is the case and she has faced a jury trial in the Crown Court (and lost) she may
have been in custody for many months prior to sentence. Even if a defendant was on
bail prior to conviction judges or magistrates sometimes remand them in custody for
the two or three weeks prior to sentence whilst reports are being prepared. Your
client will want to know whether time spent “on remand” will count towards the
sentence.
The answer is – generally - yes.
The only time that is capable of counting towards the sentence is time spent in
custody on the order of a court – so generally not the time spent in the police station
after arrest and before the first appearance in the magistrates’ court (s.242
CJA2003).
The sentencing magistrate or judge does not have to make any order for time spent
on remand to count towards the sentence – it is calculated and applied
administratively by the prison (s.240ZA CJA 2003).
If, prior to sentence, your client has been on bail subject to an electronically
monitored curfew for at least 9 hours a day then the sentencer must give credit for
time spent on the curfew, unless it would be unjust to give such credit (which would
be rare). The sentencer will have to work out the amount of credit due by reference
to the five steps set out in s.240A CJA 2003. You should work it out for him/her.
6. What is remission and how does it work?
Remission is a very complex subject, but an extremely important one for your client.
Fortunately, it is no longer included in the syllabus.
In brief, remission is the reduction of a custodial sentence by administrative action
after a court has imposed a determinate sentence. A ‘determinate sentence’ simply
means one stated in days months or years (i.e. not ‘life’). Prisoners can lose
remission time if they misbehave. So it provides them with an incentive to toe the line
whilst they are inside.
Assuming your client has behaved, he will automatically be released after serving a
proportion of his sentence (often a half of it).
However, he will, in most cases, remain on licence (i.e. under supervision) until the
completion of the term – and often beyond the completion of the term.
7. Suspended sentences
A suspended sentence is a custodial sentence which will never have to be served
provided the defendant does not commit another offence for a period of time
specified by the court (that period is called the “operational period”). So, the
sentence is left hanging over the defendant’s head for a period of time as a deterrent
to stop him from re-offending. If he does commit an offence during that period and is
subsequently convicted of it the court will almost invariably activate the sentence.
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Let’s say he gets a four month prison sentence for shoplifting which is suspended for
two years. He immediately goes out shoplifting again, is arrested and later convicted.
The court might give him 6 months immediate custody for the new offence and
activate the suspended sentence on top – 10 months in total.
In addition, a court which passes a suspended sentence may attach certain
requirements to it - basically, any one or more of the requirements that can be
attached to a community order (for the list, have a look back at the “Common
Sentences” table). So the court may have ordered the shoplifter to be subject to a
rehabilitation activity requirement for a year and complete 40 hours unpaid work. If
the defendant doesn’t comply with the requirements (even if he doesn’t actually reoffend) he’s liable eventually to be brought back before the court and to have the
custodial sentence activated.
The period during which the offender is subject to one or more of these requirements
is called the “supervision period”. So, in the case of our shoplifter, the operational
period of the sentence is two years, and the supervision period is one year.
Note the following about suspended sentences:









They are custodial sentences, and the offence/s must therefore be “so
serious” that only custody will do
They can only be passed on adults (not on anyone under 18)
The sentence can only be suspended for a maximum of 2 years and for not
less than 6 months
That minimum prison term or YOI term that can be suspended is 14 days
The maximum prison or YOI term that can be suspended depends on the
court – 2 years in Crown Court and 12 months in the magistrates’ court.
If D breaches the sentence by committing a new offence during the
operational period or by failing to comply with the requirements imposed on
him, the court must order him to serve either the custodial term in its entirety
or a reduced term unless it would be unjust to do so (this is often referred to
as “activating the sentence” in full or in part)
If it would be unjust to activate the sentence at all the court may impose a
fine not exceeding £2500
If it would be unjust to activate the sentence in full/part or to fine D, the court
may extend the operational period or amend the community requirements to
make them more onerous (but it can’t impose community requirements if
none were attached to the original sentence)
If the sentence is activated because of the commission of a further offence
the term will normally be ordered to run consecutively to the term imposed for
the new offence.
8. “Dangerous offenders”: Extended Sentences for offences of ‘sex and
violence’
The courts have always had power to deal with people who commit very serious
offences by passing long sentences, including life sentences where the statute or
common law authorizes it. In recent years the government has provided the courts
with additional powers in relation to “dangerous offenders” - offenders who presented
a continuing danger to the public, whether or not their present offence was a very
serious one of its kind. Under the provisions, offenders who commit offences of sex
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or violence which would not – under the guidelines – attract very long sentences,
might find themselves subject to an ‘Extended Sentence’.
To understand the ‘extended sentence’ it is necessary to grasp the fact that when
someone is sent to prison for a fixed term, he will usually be subject to statutory
provisions which provide for his early release after serving a portion of his sentence.
Once released he will be ‘on licence’ (i.e. under supervision) to the end of the
sentence.
The ‘Extended Sentence’ allows the judge substantially to extend the period of
supervision after D’s release beyond the end of his sentence.
So, if your client has committed an offence of sex or violence – even a relatively
modest one - and has been assessed as “dangerous”, he may qualify for an
extended sentence.
The offences of sex and violence which might attract an extended sentence are to be
found in CJA 2003 schedule15. This schedule includes over 150 offences - nearly all
offences of sex and violence capable of attracting 2 years’ imprisonment or more.
They are known as “specified offences” – i.e. specified in schedule 15.
Right at the start of your career in the criminal courts you’ll be representing people
charged with offences of violence and sexual offences. Usually they’ll be fairly minor
– a grope on a bus or a punch in the eye in a pub, for example. Bear in mind that
whenever D is charged with a sexual offence or one involving some element of
‘violence’ and it is a “specified offence”, then the court will consider whether D is a
“dangerous offender”. That involves the court assessing whether there is a
significant risk of D causing serious harm to members of the public by committing
further such (i.e. specified) offences. If there is such a risk he is a “dangerous
offender” and he may find himself the subject of an extended sentence.
So when your client is charged with one of these offences – and bear in mind they
include relatively lowly offences such as affray and ABH - always be prepared to
argue the issue of dangerousness. You are advised to learn the definition of
“dangerous” as that definition sets the bar very high: there must be a significant risk
of serious harm from further specified offences.
The assessment of dangerousness: s.229
Your client is dangerous if

There is a significant risk to members of the public of serious
harm from the commission of further such offences by him
(learn it!)
In making that judgement:

The court must take into account all available information
about the present offence, and

The court may take into account any available information
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The defendant
his previous offences
relevant patterns of his behaviour
So far as the extended sentences are concerned, you are NOT required to know for
this course the provisions relating to when such a sentence can be imposed.
J. CUSTODIAL SENTENCES FOR YOUTHS (10-17)
As we’ve seen, adults are either sentenced to imprisonment (if 21 or over) or to
detention in a young offender institution (if 18, 19, or 20).
A custodial sentence for a juvenile is either a detention and training order, or, if over
two years, s.91 detention. If a court is passing a mandatory life sentence for murder,
the juvenile is ordered to be detained at Her Majesty’s Pleasure.
Detention and training order
A DTO is the standard custodial sentence for a juvenile. The sentence is measured
in months with the permissible periods being 4 months minimum, up to 24 months
(maximum). Half of the sentence is served in custody and the remainder under the
supervision of a probation or similar officer.
Note the following:



A DTO cannot be passed on a 10 or 11 year old at the time of writing
A DTO can only be passed on a 12, 13, or 14 year old if s/he is a ‘persistent
offender’.
DTOs can be ordered to run consecutively
s.91 Detention
Juveniles usually make their first appearance in the case in the youth court (the
branch of the magistrates’ court dedicated to juveniles) and will generally end up
being sentenced there. The magistrates in the youth court can sentence the youth to
a DTO of up to 24 months.
But sometimes a juvenile appears in the youth court charged with a very grave
offence – rape or robbery, for example – which may well call for a longer sentence
should the defendant plead guilty or be convicted after a trial. In those circumstances
the youth court should send the youth to the Crown Court to be dealt with.
The Crown Court can sentence the youth to detention under s.91 SA for any period
to which it could sentence an adult provided (a) D stands to be sentenced for an
offence that could attract up to 14 years in the case of an adult (or for certain other
sexual and firearms offences) and (b) no other method (including a DTO) of dealing
with the juvenile is appropriate.
Note that a sentence can be imposed under s.91 on juveniles aged as young as 10
(contrast the restrictions on DTOs)
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A Crown Court sentencing a juvenile for an offence of sex or violence will have to
consider whether or not the juvenile is a “dangerous offender” (see above). If he is,
he may be eligible for an extended sentence.
K. SENTENCING JUVENILES IN THE ADULT COURT
As you saw in the Introduction, juveniles will generally make their first court
appearance in the youth court. However, when they are jointly charged with an adult
(e.g. they are charged together with burgling a house) or the charge they face is
related to that faced by an adult (e.g. the juvenile is charged with stealing a car and
the adult with handling it) then they will appear with the adult in the adult magistrates’
court. If they plead guilty in that court or are convicted in that court after a trial then
the magistrates will move on to consider sentence. The adult magistrates’ court has
very limited sentencing powers over a juvenile. It can:




Pass a conditional or absolute discharge;
Fine
Make a referral order
Bind over the juvenile’s parents to exercise proper care and control
If none of these is appropriate it must send the juvenile to the youth court for
sentence. The court has the full range of sentencing options at its disposal.
If the juvenile has been convicted in the Crown Court (for example, where the youth
court declined to deal with the case because of the seriousness of the crime; or
where he is jointly charged with an adult who has elected Crown Court trial and the
magistrates have sent them to be tried together) the Crown Court can pass any
sentence that a youth court could pass – in addition to s.91 detention.
L. ANCILLARY ORDERS
1. Compensation
In addition to whatever sentence it passes, a criminal court may order D to pay
compensation for any personal injury, loss or damage resulting from the offences it
is dealing with. Indeed, the court must consider making an order in these
circumstances and, if it doesn’t do so, it must give its reasons (s.130 SA). As with a
fine, the order can be enforced by a custodial term in default of payment.
This regime does not generally apply to damage caused in road traffic accidents
(often caused by careless driving): the victim will have to look to the offender’s
insurer or (if he is uninsured) the Motor Insurers’ Bureau Scheme.
There is no upper financial limit to the Crown Court’s or the magistrates’ court’s
power to order compensation. In fixing the amount of compensation the court will
obviously have regard to the extent of the injury, loss, or damage, as would a civil
court: but it must, unlike a civil court, also have regard to D’s ability to pay. So, just
as it does when imposing a fine, the court will look to D’s disposable assets and
income and give him time to pay what he can within a finite period (see “fines”
above).
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It is possible for a court to deal with an offence solely by way of a compensation
order. Where, for example, D has vandalised some public property, compensation in
the sum of £1,000 for the clean-up might be seen as a sufficient way of dealing with
it: D is providing reparation for the offence, and the amount of money he is having to
pay will also be felt by him as a punishment. It is because compensation can be both
punitive and reparative that s.130 gives compensation priority over a fine (which is
only punitive), requiring any fine to be reduced or dispensed with altogether to allow
compensation to be paid.
2. Costs
Where D is convicted, or fails in his appeal, the court can order him to pay to the
prosecution such costs as appear ‘just and reasonable’. There is rarely a dispute
about the amount of costs incurred by the prosecution. However, a convicted
defendant is often not ordered to pay the entirety of the costs incurred, because the
court must consider D’s ability to pay. In considering that question the court must
look to D’s disposable assets and income after taking into account any
compensation and fine he has been ordered to pay.
3. Confiscation orders
The government has for a long time been concerned to prevent criminals benefitting
from their crimes. A six year prison sentence might not seem so unpalatable if the
prisoner can return to his mansion, Mercedes and bulging bank balance at the end of
it (or half of it – with remission). So the sentencing regime has made provision for the
confiscation of a criminal’s assets.
The Proceeds of Crime Act 2002 replaces previous confiscation schemes.
The power to make a confiscation order is exercisable only by the Crown Court,
either when a defendant has been convicted before that court, or when he has been
committed to that court for sentence by the magistrates.
If the prosecutor invites the court to hold an inquiry with a view to making a
confiscation order then the court must hold that inquiry.
In the course of that inquiry the judge must ask the following questions:
(a) Does the defendant have a “criminal lifestyle”? There are certain offences
which, because of their nature, are specified by the Act to be “lifestyle”
offences. So if, for example, he is convicted of a drug trafficking or a money
laundering or a pimping offence, then he is deemed to have a criminal
lifestyle: these types of offences are unlikely to be committed by a one-off
offender. But he may be found to have a criminal lifestyle even if the offence
is not specified as a lifestyle offence. For example, burglary is not specified
as life-style offence (it’s often committed by a “one-off” burglar). But if D has
been convicted of burglary it may be evidence of a “criminal lifestyle” if his
record shows that he is a habitual burglar.
(b) If he does have a criminal lifestyle, has he benefitted from his “general
criminal conduct”? Here the court is looking at all of his past criminal conduct
– not just that conduct which constitutes the offence of which he has just
been convicted. So, if the defendant is convicted of selling a few grams of
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cocaine to a customer the court can investigate his financial history with a
view to ascertaining the full extent to which he has benefitted from past
criminal conduct – not just from this deal. The court is required by the Act to
make some pretty harsh assumptions which it is for the defendant to rebut. If
for example, an asset has been transferred to the defendant within the past 6
years (his Mercedes, for example) the court must assume that it was
obtained by him as a result of his general criminal conduct unless he can
prove otherwise.
(c) If he has benefitted from his “general criminal conduct” what is the
“recoverable amount”? The Court is required to make an order requiring the
defendant to pay the “recoverable amount”. That amount will either be the
amount of his benefit from his general criminal conduct or, if that is no longer
available, the available amount. So if the court determines that the person
convicted of selling 20gs of cocaine has benefitted over the past few years to
the tune of half a million pounds from selling drugs, then , if the court is
satisfied that his house and his car and any other assets are worth £400,000
he must order that the offender pay that amount. If he doesn’t pay, as with a
fine defaulter, he’s ultimately liable to serve a term of imprisonment in default
of payment.
(d) If the court does not find that he has a “criminal lifestyle” (say he is a one-off
burglar) the court must decide whether he has benefitted from the particular
criminal conduct for which he is being sentenced. So if, for example, a oneoff burglar stole and disposed of a very valuable piece of property the court
would determine that he had benefitted from that particular conduct. It would
then determine the recoverable amount by looking to the defendant’s assets
and make an order that he pay the value of the property stolen, or such
amount as he could realise from his own assets.
4. Forfeiture orders
Under s.143 SA a criminal court has power to make a forfeiture (or deprivation) order
in relation to any property used, or intended to be used, by him to help him commit
an offence, provided the property was in his possession or control at the time of his
arrest or summons or was lawfully seized from him.
Similarly, if D has been convicted of an offence of unlawfully possessing property
(e.g. a weapon) the court can order the thing to be forfeit under this section.
The court is not obliged to make a forfeiture order and must consider whether the
effect of the order would be to “over-punish” D. Say D has used his £1,000 car to
commit a series of high-value burglaries. It may be appropriate to send him to prison
and to forfeit his car. But if he has used his £20,000 car to commit one minor nondomestic burglary which only merits a fine, it would clearly be disproportionate to
order forfeiture of the vehicle.
Note that an order under s.143 does not apply to real property (if D used him home
to store stolen goods, the court cannot forfeit his home). And it does not affect the
rights of other people in the property. For this reason it is best used in uncomplicated
cases where it is clear D has the only proprietary interest in the property.
Another commonly used power to forfeit is found in s.27 Misuse of Drugs Act 1971.
This empowers a court dealing with a drugs offence to order forfeiture of anything
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which the court is satisfied relates to the offence – e.g. the drugs, the drugs
paraphernalia, etc.
5. Registration of sex offenders
You will be aware that certain categories of sex offender (they are listed in Schedule
3 of the Sexual Offences Act 2003) are required to notify the police of their address
(and other personal details) following conviction and thereafter to notify them of any
changes of name and address for a period determined by reference to the sentence
passed. If, for example, an adult has been sentenced to five years’ imprisonment for
an offence of rape then the requirement lasts for life. If he has been sentenced to
twelve months for possessing indecent photographs of children, the period is seven
years.
This is not strictly an ancillary order as the court doesn’t have to make any order.
The liability arises by virtue of the conviction and sentence.
M. WHAT SENTENCE IS MY CLIENT FACING?
Up to now we have been considering the powers of the court. The rest of this
handout considers how to work out what sentence your client is likely to receive.
Acts of Parliament alone don’t help much in answering this question. They might tell
you the maximum sentence your client can receive - but it’s rare he’ll be looking at
anything like the maximum. Also, Acts of Parliament say things like
 Don’t send someone to prison unless the offence is “so serious” that prison is
inevitable...
- But how do you know if it’s that serious?
 Don’t pass a community sentence unless it’s “serious enough” for one...
- Ditto?
 Increase the sentence if the offence is racially aggravated
- Increase what sentence? And by how much?
 Reduce the sentence if the defendant pleads guilty.
- Ditto? Ditto?
So, where does a barrister find the answer?
a) Personal experience
After a while in practice the criminal practitioner will start to develop a pretty
reliable gut instinct about the sentence the client’s looking at. Until that time
arrives s/he will have to...
b) Ask someone else
That may sound facetious, but in practice barristers will often ask around in
chambers if it’s an offence they don’t have much experience of - in addition to
researching the law themselves.
Unfortunately there’s a limit to which you can ask around on this course, because
the work you produce must be your own. So...
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c) Practical legal research
You need to develop a gut instinct as to how a sentencing court might approach
the type of case that you are considering. Every time you have to advise on or
present a criminal case on this course you should research sentence as
extensively as time allows - whether you are making a bail application, presenting
a mode of trial/allocation argument, advising in conference, preparing for a trial,
or preparing for an assessment. Always research sentence.
The following notes will help you.
The General Approach
Always start by considering the seriousness of the offence. In assessing offence
seriousness you always be considering the harm caused by your client and your
client’s culpability (intentional harm, for example, will always be more culpable
than reckless harm): s.143 CJA.
This process of assessing the offence’s seriousness will require you to look at
the particular circumstances of your offence and make a list of facts which
mitigate it seriousness (e.g. it was spontaneous rather than planned) and list of
factors that aggravate its seriousness (e.g. the victim was particularly
vulnerable). You will find a list of common mitigating and aggravating features of
offences at paras 1.22-25 of SC Guideline “Overarching Principles: Seriousness”.
Familiarise yourself with them.
In addition to these matters, note that statute specifically requires the court to
take into account the following as aggravating features of the offence:




Each relevant previous conviction (s.143 CJA) (see the section on
“antecedents” at C2(a) above).
The fact that D committed the offence whilst on bail for another
offence (s.143 CJA)
The fact that the offence is based on hostility to the victim’s race
or religion (s.145 CJA)
The fact that the offence is based on hostility to the victim’s
disability or sexual orientation or transgender identity (s.146 CJA)
Having considered all of the factors which affect the offence’s seriousness, you
should consider any mitigating features personal to your client (e.g. he has
shown remorse; it will destroy his career if he goes to prison)
Finally, you should make any deduction required by law for a guilty plea. Note
that statute specifically requires the court to take into account the stage at which
D pleaded guilty and the circumstances of the plea (s.144 CJA). The SC have
issued an important guideline on reduction of sentence for a guilty plea. You
should have regard to it and to the further guidance offered in the case of R v
Caley [2012] EWCA Crim 2821. Generally an offender can expect a discount of
between a third and a tenth, depending on how soon the plea was entered.
However, note the following. First, where the case against the defendant, quite
apart from any admissions by him, was overwhelming he might only be entitled to
a 20% discount, even if he pleaded guilty as soon as he could. Secondly,
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remember (see C3 above) that a defendant who loses a Newton hearing will not
receive full credit.
The Research
There are three principal sources of guidance for sentencers. Each of them will
help you to assess the offence’s seriousness:



Magistrates’ Court Sentencing Guidelines issued by the Sentencing Council
Definitive Guidelines issued by the Sentencing Council
Guidelines issued by the Court of Appeal
The starting point for your research will depend on whether your client is being
sentenced in the magistrates’ court or the Crown Court: if in the magistrates’ court
you will start with the Magistrates’ Court Sentencing Guidelines; if in the Crown
Court you will generally start with the Sentencing Council (or Court of Appeal)
Guidelines.
The Sentencing Council (SC) is the statutory body charged with function of
issuing sentencing guidelines for specific offences. Prior to 2003 responsibility for
issuing guidelines lay with the Court of Appeal (Criminal Division).
It should be noted that they are ‘guidelines’ and not ‘tramlines’ (to use the words
of Lord Judge CJ). Section 125 Coroners and Justice Act 2009 gives the court
some discretion: it requires the court to follow the guideline “unless it would be
contrary to the interests of Justice to do so.”

Magistrates’ Court Sentencing Guidelines
These have been issued by the SC for the benefit of magistrates when
considering sentence for common summary-only and either-way offences.
Dozens of offences are dealt with, in alphabetical order. They are in the
supplement to Blackstone’s and are accessible by clicking on the “visit the
magistrates’ court sentencing guidelines” tab on the SC home page.
Obviously you will refer to these guidelines when your client is due to be
sentenced for a summary offence (e.g. threatening behaviour, contrary to s.4 of
the Public Order Act).
In addition, when your client is appearing in the magistrates’ court charged with
an either way offence you may have to refer to the guidelines in the following
circumstances:
-
-
-
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When D has indicated a not guilty plea at the plea before venue
hearing and the magistrates have to decide whether they would have
power to sentence him if they accepted jurisdiction;
When D has pleaded guilty at the plea before venue hearing and they
are deciding whether or not they have power to sentence him or
whether they should commit him to the Crown Court for sentence.
When D has been convicted after a summary trial and the magistrates
are considering sentence
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Definitive Guidelines Issued By The Sentencing Council
When you are in the Crown Court you need to check whether the Sentencing
Council (or its predecessor) has issued a specific definitive guideline for the
offence you are dealing with.
Definitive guidelines can be found in the Supplement to Blackstone’s and on the
SC website. On the SC home page click on the “download a guideline”” tab.
If the Council has not yet issued a definitive guideline for the offence you are
dealing with you will have to do some further research. If it is an either-way
offence which is not very serious a good starting place is the Magistrates’ Court
Guidelines. Imagine, for example, that your client is charged with handling a
stolen iphone valued at £400. It’s not a very serious offence and the magistrates
accepted jurisdiction: but your client protested his innocence and demanded
Crown Court trial. He has now been convicted by a jury and the judge has to
sentence him.
There is as yet no definitive guideline for handling stolen goods. But it is an
offence which is covered in the Magistrates’ Sentencing Guidelines. And as this
is a case which clearly would have fallen within the magistrates’ sentencing
powers the judge will follow that guideline (which suggests a fine for your client).
If there is no definitive SC guideline and your either-way offence is clearly too
serious to be covered by the Magistrates’ Guidelines (handling jewellery worth
£100,000, for example), or your client is being sentenced for an indictable-only
offence, then you will have to find out if there exist any Court of Appeal
Guidelines

Court of Appeal Guidelines
In the event just described in the last paragraph, a good starting point for your
research will be to look up the offence charged in section B of Blackstone’s.
There you will generally find reference to any guideline case. If, for example, you
look up handling stolen goods (at B4.120 onwards in the 2015 edition) you will
find a section on sentence (at B4.164 onwards) and reference to the guideline
case of R v Webbe [202] 1CrAppR (S) 82.
Alternatively (or in addition) you can look up the offence in Current Sentencing
Practice (published by Sweet and Maxwell). In its hard copy form it is a loose leaf
encyclopaedia of important cases on sentence. Guidance on how to use the
electronic version is given below.
N. STEP BY STEP GUIDE TO ESTIMATING YOUR SENTENCE (CROWN COURT)
Where SC Guideline Exists
The best way to get your head around SC guidelines is to use them. So, for the
purpose of this exercise we’ll choose an offence for which there is a definitive
guideline.
Your client has pleaded guilty to ABH. He was called a ‘prick’ by a man outside a
nightclub for no particular reason. He punched the man to the ground and kicked him
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twice to the body, causing minor injury. The man’s girlfriend was present and was
extremely distressed. Your client has a previous conviction for affray, following a
fight at a football match two years ago. He was given a community order which he
has completed. When interviewed by the police for the present offence he showed
genuine remorse.
Go to the “Assault Definitive Guideline” (on the SC website or the supplement to
Blackstone’s) and find the guideline on s.47 ABH.
STEP 1
This guideline, in common with most others, creates ‘categories of seriousness’ for
ABH offences. You need to determine which of the categories this ABH falls into.
This requires you to assess the degree of D’s “culpability” and the level of “harm”
caused by reference to the factors listed under Step 1 of the guidance. In this case
the level of harm appears to be “less serious”. But there appears to be a higher level
of culpability owing to the presence of one particular factor – the kick (a kick with a
shod foot, according to the guideline, equates to the use of a weapon).
So this is category 2 offence – lesser harm and higher culpability.
STEP 2
The range of sentencing for a category 2 offence is a low level community order up
to 51 weeks’ custody. There is a given starting point of 26 weeks’ custody. So you
start with that, and then adjust upwards to 51 weeks and downwards to a low level
community order by looking to see whether any of the aggravating or mitigating
features mentioned in step 2 are present. Note that the list of features is not
exhaustive: so you can include factors not on the list.
The aggravating features are a) his previous conviction for violence and b) the
presence of the victim’s girlfriend.
The mitigating features are a) his remorse, b) the fact that it was an isolated incident,
and c) (not on the list) a minor degree of provocation.
Here the aggravating and mitigating features more or less balance each other out,
so he may be looking at custody. It’s pretty borderline. The judge will have to ask
herself whether the custody threshold has been passed, and, if it has, whether she
can suspend the sentence.
STEP 3
[Forget the Step 3 mentioned in the guideline – you don’t need to know it for this
course]
Reduce the sentence by one third for his plea of guilty at the first opportunity (see
above)
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Bristol Institute of Legal Practice
Bar Professional Training Course
Where No SC Guideline
Where there is no SC guideline you will have to research the decisions of the Court
of Appeal, and in particular seek out any guideline cases (before you do that make a
list of what you regard as the aggravating/mitigating features).
Start off by looking up the offence charged in Section B of Blackstone’s (see above).
In addition you should look up the offence in Current Sentencing Practice. CSP is a
loose leaf encyclopaedia like Kemp and Kemp. It is easier to use it on line. You’ll see
how it works by following through an example.
Pretend you are representing someone charged with a serious public order offence
such as riot or violent disorder which was clearly pre-planned. He is clearly going to
be sentenced in the Crown Court. You have checked the SC website and found that
there are no guidelines. Just a few words before you start….
When you get to the folder dealing with your offence there may or may not be a
guideline case. If there is, read it. But also look at the section on “recent decisions” in
that category of offence because you may find one that’s on all fours with your case.
If there’s no guideline case then read through the “recent decisions” section to get an
idea of the sort of sentence you’re looking at.
First, log on to Westlaw (uweintranet homepagelibrary services
website databases by subject/A-Z (click on A-Z)W Westlaw
Westlaw UK). When you enter the site click on ”Books”” at the top.
Then click on Current Sentencing Practice.
Riot
Click on
-
Part B Particular Offences
You’ll see in Part B the various
categories of offences listed. Click the
one most likely to contain your offence.
- B3 Public Order
- B3-1.2 Guideline cases
- Guideline cases (R v
Blackshaw (2012)
- B3-1.3 Recent decisions
- B3-1.3D Large scale premeditated riots
O. STEP BY STEP GUIDE TO ESTIMATING YOUR SENTENCE (MAGISTRATES’
COURT)
You need to get used to using the Magistrates’ Court Sentencing Guidelines. In
due course they will include up-to-date guidelines for all offences with which
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© Bristol Institute of Legal Practice
Bristol Institute of Legal Practice
Bar Professional Training Course
magistrates are commonly faced. Work through the case of Gary Manning,
imagining that he is a first-time offender. You’ll find the guideline for burglary in a
dwelling starting at p.217
The fact that he has previous convictions for burglary (one domestic and the
other non-domestic) is a serious aggravating feature which may well take the
case beyond the magistrates’ powers and persuade them to commit him to the
Crown Court for sentence.
If he is sent to the Crown Court you will need to refer to the 2012 SC Guideline
on burglary offences.
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