18 May 2015
Judges and magistrates and the scope of their sentencing powers
Judges and magistrates are sometimes criticised for giving a particular sentence, normally when it is thought to be too short or the wrong type of sentence for the crime. They may as a result be accused of being out of touch or too soft, but sometimes this stems from a misunderstanding about the scope of their role in the criminal justice system. They impose the sentence, but what comes before sentencing limits the options available, and what happens afterwards will be managed by other organisations, while the whole process operates within laws set by Parliament. It is therefore worth looking at the context of sentencing, including the law which defines the many aspects of it, along with the roles of other organisations in the criminal justice system which will all influence sentencing. Parliament and the law The definition of offences and the maximum sentences for them are set by Parliament. Judges and magistrates must obey these laws in sentencing and work within their limits. Whether a maximum sentence is one year or 10 years, judges must still decide on a proportionate sentence up to that maximum. It is unusual for the maximum sentence to be given, as this would signify the worst possible example of that offence, so a sentence is set at an appropriate point between the least serious and the most serious examples. Minimum sentences for some offences are also set by Parliament, which must also be followed by the sentencer. The law also defines which types of offence can be heard at which court – some are “summary only”, which means they can only be heard in the magistrates’ courts. Others are called “either way” or “indictable” offences and can be heard in either the magistrates’ courts or the Crown Court. The most serious are “indictable only” offences, which can only be heard in the Crown Court. In addition, Parliament has laid down five purposes of sentencing – punishing offenders, reducing crime, reforming and rehabilitating offenders, protecting the public, making the offender give something back to people affected by the crime – that sentencers are obliged to follow. They will, however, vary the emphasis depending on the particular offence and offender they are dealing with. Charging decisions Sentencers are not involved in the decision about what offence a suspect should be charged with – that is down to the Crown Prosecution Service. For example, the CPS will have to decide whether a person charged with killing someone should be charged with manslaughter or murder, or following an assault, whether to charge the person with actual bodily harm or grievous bodily harm. They need to decide what the most appropriate charge is, but also which offence they think they can secure a conviction for. The scope of sentencing for murder and manslaughter and for ABH and GBH are very different, and if there is a conviction, the judge will have to sentence according to the offence charged. There are several alternatives to formal charges available to police and CPS when dealing with adults, including cannabis and khat warnings, penalty notices for disorder, community resolution, simple cautions and conditional cautions. These are collectively known as out of court disposals and in such cases, the offender would not come to court. Sentencing guidelines When considering what sentence to give an offender, judges and magistrates must also follow any sentencing guidelines produced for the offence in question. These give broad sentencing ranges according to the seriousness of an offence, which are intended to give the flexibility to cover the vast majority of cases that come before the courts. However, if faced with an exceptional case, they can sentence outside the guideline ranges. Guilty pleas It is a long-standing practice that offenders should get a discount on their sentence for pleading guilty and the sentencer will apply this. The reason for the guilty plea discount is that it encourages offenders to plead guilty rather than have a trial – this saves victims and witnesses from having to testify and saves time and public money. There is a sentencing guideline which sets out the level of discount appropriate to the stage in the process at which the offender pleads guilty. The judge or magistrate will apply the discount in accordance with the guideline. Type of sentence Depending on the offence, the judge or magistrate will have a range of sentence types they can give an offender according to the seriousness of the offence and other factors such as the offender’s previous criminal record. Where a sentencing guideline exists, the court will refer to it to decide the sentence. The court can also ask the National Probation Service for a pre-sentence report to assist in finding the most suitable sentence for the offender. Sentence types include prison, community sentences, fines and discharges. Some offences will have limited sentencing options. Some may carry a fine only, such as speeding, whereas at the other end of the scale the only sentence available for murder is life imprisonment. Time spent on remand Following arrest and charge, a person may be denied bail and kept in detention on remand before the trial and sentence. This time spent in prison will count towards an offender’s sentence if they are convicted and sent to prison, but the calculation of how much time counts towards the sentence is done by the Prison Service rather than the court. How sentences are served If someone is sent to prison for more than 12 months, the law states that normally they will spend half their sentence in jail and half on licence in the community, so the sentencer does not dictate when a prisoner is released. Similarly, the sentencer is not responsible for managing non-custodial sentences – that is up to the Community Rehabilitation Company for the area. So, while the judge or magistrates will hear all the facts of the case and decide on the appropriate sentence for a particular offender, it is important to take into account the wider context that sentencers are working in, which limit the options for the sentence that a particular offender should get. The information on this page was correct at the time of publication.