Judges and magistrates across England and Wales will have access to expanded explanations embedded in offence specific guidelines. The expanded explanations add extra information to aggravating and mitigating factors to make it easier for courts to maintain consistency and transparency in sentencing.

They are designed to reflect and encourage current best practice rather than to alter sentencing practice. They will provide court users with useful information relating to fines, community and custodial sentences and commonly used factors. They will also improve transparency for victims, defendants and the wider public.

The expanded explanations, which supplement the General guideline are effective from 1 October 2019 but are now available online, with an accompanying video.

The Sentencing Council is also improving the links within sentencing guidelines to other relevant information, such as the Equal Treatment Bench Book.

Q&A

1. Why has the Sentencing Council added expanded explanations to existing offence specific guidelines?

• The additional information will provide sentencers and other court users with useful information relating to commonly used factors in guidelines and improve transparency for victims, defendants and the wider public.
• They take advantage of the fact that guidelines are now provided in a digital format, so the information can be provided from within individual sentencing guidelines.

2. What are some of the key features?

The expanded explanation for a factor is the same wherever that factor applies. There are expanded explanations for factors that are present in most guidelines such as:

• previous convictions
• offence committed on licence or post sentence supervision
• remorse
• age and/or lack of maturity
• sole or primary carer for dependent relatives

Expanded explanations also apply to for factors that are less common such as:

• offence was committed against an emergency worker acting in the exercise of functions as such a worker
• abuse of trust or dominant position
• delay since apprehension

The expanded explanations do not change the factors in guidelines – they just provide additional information on the factors that are already in the guidelines.

3. How do expanded explanations apply to new guidelines?

• From 1 October 2019, the relevant expanded explanations will be added to aggravating and mitigating factors in offence guidelines.
• When the Sentencing Council introduces new overarching guidelines, links to those guidelines will be added if relevant to the explanations. For example, the explanation for the factor ‘Mental disorder or learning disability’ will be replaced by a link to the Mental Health Overarching Principles guideline when that comes into effect in 2020.

4. What difference does the extra information make?

• The expanded explanations are designed to reflect and encourage current best practice rather than to alter sentencing practice.
• In some cases, the explanations provide links to or extracts from existing overarching guidelines. In other cases, the explanations reflect case law.
• Having this information easily available within guidelines means that all those involved in sentencing will be aware of the relevant considerations.

5. Do sentencers have to follow the guidance in the explanations?

• The expanded explanations are an integral part of the guidelines and once they are in force (from 1 October 2019) courts must follow them unless it would not be in the interests of justice to do so.
• The explanations vary in the amount and type of information they contain. The aim is to provide easy access to relevant information without interfering with the ability of the court to sentence appropriately on the facts of the case before it.
• Guidelines require sentencers to take account of relevant matters and the expanded explanations provide the necessarily material, but they do not tell sentencers precisely how that should be reflected in the final sentence.
  

6. How might the explanations operate in practice?

• Prosecution and defence representatives are used to referring to factors in guidelines in their submissions to the court. The expanded explanations will help to ensure that all relevant issues relating to aggravating and mitigating factors are drawn to the court’s attention.
• As an example, the explanation for ‘Age and/or lack of maturity’ could be valuable to sentencers as it sets out the latest information on how immaturity can impact on offending. As well as providing concise but comprehensive information, the explanation reminds sentencers of the importance of obtaining a pre-sentence report when considering these issues. 
  

7. Who will these explanations help and how?

• Judges and magistrates will find it easier to access relevant information on factors in guidelines
• Defence and prosecution lawyers will be able to refer to the information in submissions to the court
• Defence representatives will be able to use the information to explain to defendants how the sentencing process works
• Victims and other interested parties will be able to see how different factors are applied by courts
• Overall, the explanations will help to ensure that relevant considerations are taken into account in sentencing and that the process is transparent.

8. What impact will the expanded explanations have on sentence outcomes?

• The expanded explanations will apply where relevant to all offence specific Sentencing Council guidelines for sentencing adults and organisations. As such they have the potential to affect a large proportion of sentences, but as most of the expanded explanations relate to factors at step two of guidelines – after the starting point has been determined – the potential impact on sentence outcomes is limited.
• The aim is to improve consistency and transparency in sentencing, and not to increase or decrease individual sentences. However, it is possible that individual sentences could be increased or decreased if in a particular instance a judge or magistrate is not currently following best practice.
• The Sentencing Council has published a resource assessment giving more details.

Judges and magistrates across England and Wales hand down sentences to over 1 million offenders a year for criminal offences. To make sure that there is a consistent approach to sentences given to offenders wherever they are, the Sentencing Council produces offence specific guidelines which courts must follow unless it is not in the interest of justice to do so.

Since 2010, the Sentencing Council has produced over 130 guidelines which cover most of the high-volume criminal offences sentenced by courts. However, some offences which are new or less common do not have a guideline.

The Sentencing Council has published the General guideline which will ensure that a structured sentencing process will be followed by all courts for offences that do not have a sentencing guideline.

The new guideline will be supplemented by the newly introduced expanded explanations in offence specific guidelines. The guideline is effective from 1 October 2019 but is available online with an illustrative video.

1. What is the purpose of the General guideline?

• The General guideline will be used by judges and magistrates when sentencing offences for which there is no offence specific guideline. It applies to adult offenders and organisations in magistrates’ courts and the Crown Court.

• It is designed to provide guidance for sentencing a wide range of offences with different characteristics and different maximum sentences.
• It will also serve as an overarching guideline for use in conjunction with offence specific guidelines

• It updates and replaces the Seriousness guideline published in 2004 by the Sentencing Guidelines Council as an overarching guideline in a format that is easier to access and brings together current best practice in sentencing.

2. Why was the guideline developed?
   

• The Sentencing Council has produced offence specific guidelines for most of the high-volume criminal offences sentenced by courts. However, some offences do not yet have a guideline, for example Immigration Act offences and Malicious Communications Act offences.

• There are also many different offences that individual sentencers will rarely see and that have no guidelines, for example blackmail, wildlife offences or offences relating to planning regulations.

3. What do courts use when there is no offence specific guideline?

• Until the General guideline comes into force on 1 October 2019, courts can continue to use the Seriousness guideline for general guidance on sentencing.
• Both magistrates’ courts and the Crown Court may also use existing guidelines for similar offences as a reference point. In addition, Crown Court judges may refer to relevant judgments from the Court of Appeal.

4. What difference will the General guideline make?

• The General guideline will provide judges and magistrates with a clear structure to follow when sentencing offences that do not have a guideline.
• It will also assist defence and prosecution representatives in structuring their submissions to the court.
• The guideline leaves wide discretion to judges and magistrates but aims to ensure that all relevant factors are considered and given appropriate weight in arriving at the final sentence.
• There will be more comprehensive guidance in relation to aggravating and mitigating factors than in the Seriousness guideline. This will make it easier for sentencers to maintain consistency and transparency when sentencing.
• The General guideline will also be used with offence specific sentencing guidelines where some factors are not covered and overarching guidance is required.

5. How will the guideline benefit victims?

• In all Sentencing Council guidelines, the seriousness of an offence is first assessed by looking at two main things: the culpability of the offender and the harm caused to the victim(s).
• The structured approach taken in the General guideline ensures that consideration of the harm caused to victims is also central to the sentencing process when sentencing offences for which there is no offence specific guideline.
• The General guideline also draws the court’s attention to relevant considerations of the harm caused, intended or risked in considering aggravating and mitigating factors.

6. Why are there no sentence levels in the General guideline?

• The guideline is designed to provide guidance for sentencing a very wide range of offences with very different characteristics and very different maximum sentences, so it cannot specify sentence levels.

The Sentencing Council has published new guidelines for manslaughter offences today, which set out for the first time comprehensive guidance for courts sentencing these very serious and difficult cases.

Since there are several types of manslaughter and sentences can differ very significantly for those convicted of it, we thought it would be helpful to write a blog post about this offence more generally to give an overview of the offence the different types and why sentences can range so widely.

Manslaughter is an extremely varied area of offending. It can involve an unintended death resulting from an assault, a fatality caused by negligence or someone who kills while suffering from a mental disorder. Sentence levels can also vary widely, from suspended sentences up to life sentences being given.

When courts are sentencing offenders, it is the seriousness of the offence which decides the level of sentence given, within the parameters allowed by law, such as maximum sentences.

Seriousness is determined by assessing two factors: the harm caused to the victim and the culpability of the offender. The nature of the harm will vary from offence to offence: the harm caused by fraud and assault are of course very different. Some offences will also involve an inherently greater degree of harm than others, for example the harm caused by common assault can never be of the level involved in grievous bodily harm.

The culpability of the offender can also vary greatly. For example, some offenders commit offences with a great deal of planning, others are opportunists acting on the spur of the moment. Some may have a leading role in a group committing a crime, others may be pressured into collaborating.

Manslaughter always involves the highest level of harm, since by definition it always involves a fatality. Because of this, the law allows a sentence up to life imprisonment.  However, manslaughter stands out in terms of the gamut of sentence levels that are given, which can range from suspended sentences to substantial life terms. This reflects the hugely different circumstances in which a manslaughter occurs and the levels of culpability. Manslaughter can involve an offence that is not far from being an accident, while another may be just short of murder.

Manslaughter falls into two broad categories: involuntary and voluntary.

Involuntary manslaughter is unlawful killing without the intent to kill or cause really serious harm and is a common law offence. There are two classes of involuntary manslaughter: unlawful act manslaughter and manslaughter by gross negligence.

Unlawful act manslaughter is charged when death occurs due to a criminal act which a reasonable person would realise must subject some other person to at least the risk of some physical harm. It doesn’t matter whether or not the offender knew that the act was unlawful and dangerous or whether harm was intended. This is by far the most common type of manslaughter with around 100 offenders being sentenced annually. It often involves deaths that come about as a result of assaults, a typical scenario being the so-called “one punch” manslaughter. These can vary enormously in the planning and intention of the offender. There could be a situation not far from being an accident such as a minor argument between friends where one pushes the other who unexpectedly falls and suffers fatal injuries. In another situation, someone with a history of violence may go out looking for a fight and hit a stranger as hard as possible in an unprovoked attack. The harm is the same, but the culpability of the offenders in these situations is very different.

In one case, sentenced in 2016, a “silly row” between two men who had been close friends for 45 years led to one hitting the other, who fell, striking his head, which caused his death. The family of the victim asked for the sentence to be suspended, but a 28-month sentence was imposed. By contrast, another man with a history of violence, who pleaded guilty to manslaughter was sentenced to six years in prison for killing a man in an unprovoked attack in the street.

Manslaughter can also arise out of other unlawful acts such as robbery, arson and affray. In 2016, two men received sentences of 13 years and 9 years respectively for robbing a pizza delivery man who was punched to the ground with fatal results, while in 2013, Mick Philpott was sentenced to life imprisonment with a minimum term of 15 years – the equivalent of a 30-year determinate sentence – after seven children died when he set fire to his house. 

Manslaughter by gross negligence occurs when the offender is in breach of a duty of care towards the victim, the breach causes the death of the victim and, having regard to the risk involved, the offender’s conduct was so bad as to amount to a criminal act or omission. It could involve parents or carers failing to protect a child from an obvious danger, employers completely disregarding the safety of employees or medical practitioners giving wholly inadequate care to a patient. This type of manslaughter occurs less frequently with 10 offenders being sentenced in 2016. Of these, all were sentenced to determinate sentences, two of which were suspended, ranging from two to 6 years.

Voluntary manslaughter occurs when all the elements for murder are present, including an intention to kill or cause really serious harm, but the crime is reduced to manslaughter by reason of loss of control or diminished responsibility. 12 offenders were sentenced for manslaughter by reason of loss of control in 2016. All received determinate custodial sentences in the range of five years to 18 years.

Diminished responsibility means that the offender would have been suffering from a recognised mental condition which affected their responsibility at the time of the offence, without which they would have been convicted of murder.

26 offenders were sentenced in 2016. Of these 18 were made subject to hospital orders under the Mental Health Act, two were sentenced to life imprisonment and the remaining six were sentenced to determinate sentences, one of which was suspended, ranging from two to 19 years.

There is one further type of manslaughter – corporate manslaughter, which is covered by the Sentencing Council’s existing guideline on health and safety offences. This offence applies to organisations rather than individuals so the only sentence that can be given is a fine, though this can run into many millions of pounds. An organisation is guilty of this offence if the way in which it managed its activities both caused a person’s death and was a gross breach of a duty of care that the organisation owed to the deceased. It is further required that a substantial element of the breach was the way in which the organisation’s activities were managed or organised by its senior management.

With the numerous types of manslaughter offence and the great variety of offending, the introduction of the new guidelines, which come into force in November 2018, will promote consistency of sentencing. This will mean that even though the circumstances may vary enormously from case to case, the approach to assessing them is the same and this will help ensure that proportionate sentences will be passed.

In reports about crimes where money or property are taken, “theft”, “burglary” and “robbery” are terms often used interchangeably. There are, however, very clear differences between these offences.

Put very simply, someone is guilty of robbery if he steals from a person using force or makes them think force will be used. Theft means taking someone’s property but does not involve the use of force. Burglary means illegally entering a property in order to steal property from it.

Below is a summary of each offence and what it involves.

Theft

In legislation “a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.” This could mean someone stealing from a shop, picking someone’s pocket, stealing a bicycle or car, an employee stealing from their workplace or a guest stealing something from a house during a party.

The maximum sentence for theft is seven years.

Robbery

The definition as set out in legislation is as follows: “A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person of being then and there subjected to force”.

This can include a street mugging or robbery of a shop, business or security vehicle.

Due to the violent nature of robbery, it is treated as being more serious than theft and the maximum sentence is life.

Burglary

Burglary is committed when an offender either:

1. a) as a trespasser enters a building intending to steal, inflict grievous bodily harm or do unlawful damage; or,
2. b) having entered as a trespasser steals or attempts to steal, or inflicts or attempts to inflict grievous bodily harm.

There are three types of burglary recognised in law. These are:

Domestic burglary – Burglary of a dwelling

This type of burglary occurs when an offender enters, as per the definition above, a building which people live in. This generally refers to houses or flats. It also includes boats and vehicles in which people live, such as caravans, and can include domestic outhouses or garages if they are linked to a house.

The maximum sentence is 14 years.

 

Non-domestic burglary – Burglary of premises other than a dwelling – Theft Act 1968 (s9)

This type of burglary relates to buildings which are not lived in, such as shops or offices.
The maximum sentence is 10 years.

 

Burglary can be committed when a person is permitted to enter a home or other premises but then goes to a room or area where they are not permitted to be and steals something.  For example, if person steals from items on display in a shop that would be theft, but if they go into a storeroom and steal something, that would be burglary.

 

Aggravated burglary

This offence is committed when, at the time of a burglary, the offender has with him any firearm or imitation firearm, any weapon of offence or any explosive.

Where a weapon is used to attack someone at the property in the course of the burglary the offender would also normally be charged with an assault offence, or alternatively they could be charged with robbery.

The maximum sentence for aggravated burglary is life.

There are three basic types of assault offence set out in law – common assault, actual bodily harm (ABH) and wounding / grievous bodily harm (GBH). They are primarily defined by the harm caused to the victim – with common assault at the lower end of harm and GBH at the upper end.

They cover everything from threatening words to a severe physical attack that leaves the victim permanently disabled.

This post will outline a short summary of these three types of assault.

 

Common assault (section 39, Criminal Justice Act 1988)

A person is guilty of common assault if they either inflict violence on another person – however slight this might be – or make that person think they are about to be attacked.

They do not have to be physically violent – for example, threatening words or a raised fist could lead the victim to believe they are going to be attacked – and that is enough for the crime to have been committed. Other acts like spitting at someone may also classed as common assault.

The offence covers both intentional and reckless acts.  For example, the offender may not have intended to cause the victim to think an attack was imminent but if they behaved in way that was likely to make the victim think they were about to be attacked, and they didn’t care what effect that behaviour would have, the offender is guilty of the offence.

If violence is used in a common assault, it is called a “battery” and the perpetrator would be charged with “assault by beating”. This does not however, mean that the victim was actually ‘beaten up’ or even hit or kicked – it could be that they were pushed, grabbed or spat at. The victim may not therefore have suffered any physical injury, and if any injury was caused, it would need to be quite minor to fall under common assault.

There are some situations in which actions that might fall under the definition of ‘assault’ are lawful, for example in medical interventions, in self-defence, or where it is part of a contact sport like rugby.

The maximum sentence allowed by law for common assault is six months imprisonment, and cases can only be heard in the magistrates’ court. If the assault is racially or religiously aggravated, the maximum sentence is two years imprisonment and cases can be heard in the Crown Court as well.

There are two other offences related to common assault – assault with intent to resist arrest and assault on a police constable in execution of his duty.

 

Assault with intent to resist arrest (section 38 Offences against the Person Act 1861)

This offence happens when someone commits a common assault at the time of a lawful arrest or detention with the aim of resisting or stopping the arrest, whether it is them or someone else being arrested. The victim need not be a police officer and could be a private citizen assisting an officer, or a private citizen or store detective making a citizen’s arrest. The maximum sentence is two years and cases can be heard in either the Crown Court or in the magistrates’ courts.

 

Assault on a police constable in execution of his duty (section 89 Police Act 1996)

This offence is a common assault on police or prison officers acting in the execution of their duty, or on a person helping them. Off-duty police officers may act in the course of duty if an incident occurs which justifies their immediate action as long as they acted lawfully.

Police and community support officers (PCSOs) are not included within this offence unless they are assisting a police officer at the time of the offence.

The maximum sentence is six months imprisonment and cases can only be heard in the magistrates’ courts.

This offence is not designed to cover all assaults on police officers. If an assault leads to more significant injury than is covered by common assault then the attacker would potentially be guilty of a more serious offence – either ABH or GBH.

 

Assault occasioning actual bodily harm (section 47, Offences against the person act 1861)

For this offence, the assault (which can be intentional or reckless as above) must have caused some physical harm to the victim.  It does not need to be serious or permanent but must be more than trifling or transient. Some psychiatric harm can also be covered by this offence, but must be more than just fear or anxiety.

Although injuries that are more than ‘transient or trifling’ can be classified as ABH, in practice someone who causes no injury or injuries which are not serious is likely to be charged with common assault.

The maximum sentence for ABH is five years imprisonment and cases can be heard in the magistrates’ courts or Crown Court.

 

Grievous bodily harm / wounding

This covers two offences

• Unlawful wounding or inflicting grievous bodily harm (section 20, Offences against the person act 1861)
• Causing grievous bodily harm with intent to do grievous bodily harm/Wounding with intent to do grievous bodily harm (section 18, Offences against the person act 1861)

 

Unlawful wounding or inflicting grievous bodily harm (section 20)

Grievous bodily harm means really serious physical harm although it does not have to be permanent or dangerous.  It can also comprise psychiatric injury or someone passing on an infection, such as through sexual activity.

Wounding requires the breaking of the skin, or the breaking of the inner skin (eg within the lip) but does not include the rupturing of blood vessels.  Although a minor wound would therefore technically come under this offence, in practice the CPS is unlikely to charge it under s.20 However, the injuries involved in a wounding are of a lesser nature than those in GBH, so there can be quite some difference in the level of sentence for these two categories of injury.

The injury must be inflicted directly or indirectly by some deliberate or reckless conduct by the offender that was not an accident.

A section 20 offence requires either an intent to do some kind of bodily harm to another person or recklessness as to whether any such harm might be caused.  So even if minor harm was intended but serious injury resulted, someone could be charged with this offence.

The maximum sentence for this offence is five years and cases can be heard in the magistrates’ or Crown Court.

 

Causing grievous bodily harm with intent to do grievous bodily harm/Wounding with intent to do grievous bodily harm (section 18)

This is the most serious of the assault offences and involves situations in which someone intended to cause very serious harm to the victim.

An offence may take one of four different forms, namely:

1. wounding with intent to do grievous bodily harm;
2. causing grievous bodily harm with intent to do so;
3. maliciously wounding with intent to resist or prevent the lawful apprehension etc. of any person; or
4. maliciously causing grievous bodily harm with intent to resist or prevent lawful apprehension etc. of any person.

The difference between this offence and a section 20 offence as above is that in a section 18 offence, the offender must have intended to cause serious bodily harm to the victim. It would not involve a situation where someone was very badly hurt unintentionally as a result of a minor scuffle or where during an arrest someone merely intended to resist arrest and in doing so unforeseeably injured the officer arresting him.

The maximum sentence for a section 18 offence is life imprisonment and cases can only be heard in the Crown Court.

 

New sentencing guidelines for magistrates come into force on 24 April 2017 following their publication earlier this year.

One of the offences covered is speeding and sentence levels are changing for the most serious offences, with a new higher penalty being introduced for those offenders who drive at speeds excessively above legal limits.

This change to sentencing followed calls from respondents to the consultation on the Council’s proposed new guidelines who said that the previous guidelines did not properly take into account the increase in potential harm that can result as speed above the speed limit increases.

The Council has therefore increased the penalty for the top band of seriousness to ensure that there is clear increase in fine level as the seriousness of offending increases. This means fines for these offenders will have a starting point of 150 per cent of weekly income rather than the existing level of 100 per cent of weekly income. This would apply to those who for example go at 41mph or more where there is a 20mph limit, 51mph or more where there is a 30mph limit or over 101mph on a motorway. Sentence levels for less serious offences are not changing.

The maximum fines allowed by law remain the same, so fines cannot exceed these. The maximum fine for speeding is £1000, unless it takes place on a motorway, in which case it is £2500.

The new guideline for speeding offences, can be found here.

By Lauren Bowes, Senior Researcher

As part of the Sentencing Council’s analysis and research strategy, this week we began a programme of data collection for robbery offences in the Crown Court. The Council concluded the Crown Court Sentencing Survey in March 2015 and has replaced it with shorter, offence-specific data collection exercises in both the Crown and magistrates’ courts. This data collection exercise for robbery is the first such exercise in the Crown Court, following data collection programmes in the magistrates’ courts for both theft and drug offences in 2015/2016.

This programme includes all Crown Courts and takes place from the 1st November to 28th April 2017. This work will help us to:

• understand how the new robbery guideline has influenced sentencing behaviour;
• establish whether the guideline has had any anticipated or unanticipated effects on sentencing practice; and
• give insights into what the causes of any unanticipated consequences may be.

The results will be used to assess the robbery guideline with a view to seeing whether any changes need to be made, and will also inform future Sentencing Council guidelines.

We would like to thank all those involved in the data collection exercise for their cooperation and support for the Sentencing Council. If there are any questions regarding this programme, please contact us at Research@SentencingCouncil.gsi.gov.uk

By Lauren Bowes, Senior Researcher

From the 19th September to December 2016, the Sentencing Council will begin the final phase of a data collection exercise for the offence of theft from a shop or stall, across 80 magistrates’ courts in England and Wales. Magistrates and district judges will fill out a form every time they sentence a shop theft offence, telling us about how they have arrived at that sentence.

This project is the first time we have collected comprehensive information to examine the effects of sentencing guidelines in the magistrates’ court and we are very grateful to all the magistrates, district judges and court staff in these courts for their help.

At the Sentencing Council it is important for us to evaluate the effects of the guidelines once they are in force to identify any unanticipated consequences or any areas where guidelines are not being implemented as anticipated. In this way, we ensure that guidelines promote fair, proportionate and consistent sentencing.

The data will help us to assess the impact of the new theft sentencing guideline, which came into effect earlier this year. Our analysis uses a ‘before’ and ‘after’ design: data collected since the guideline came into effect will be compared with data collected before it came into force, to see how sentencing behaviour has, or hasn’t, changed since the introduction of the guideline. The work will enable the Council to gauge whether any aspects of the guideline need to be considered for revision.

The findings from this data collection exercise will be published in 2017. If you haven’t already seen it, please take a look at our evaluation of the assault guideline, which gives you further insight into how we evaluate our guidelines: /publications/?type=publications&cat=guideline-assessment&s&topic=assault

We are very grateful to everyone who is filling out forms for us. If you have any questions regarding this exercise, please contact us at Research@SentencingCouncil.gsi.gov.uk or our contractor RAND Europe at mdavies@rand.org.

By Jill Gramann, Magistrate member of the Sentencing Council

When judges and magistrates are faced with offenders who have targeted victims who have disabilities, the law and sentencing guidelines are clear: courts are obliged to treat this as an aggravating factor which will increase the sentence given.

It is sometimes asked, however, how sentencing is influenced when it is the offender who is physically disabled.

Sentences must reflect the seriousness of the offence while taking into account the personal circumstances of the offender. These may affect both the type of sentence imposed and the length of the sentence. In all cases, regardless of disability, there may be circumstances that increase the seriousness of the offending, such as previous convictions. On the other hand, courts may take into account other aspects that could reduce seriousness, such as previous exemplary character.

So should an offender’s disability be taken into account in sentencing? Should it affect the type of sentence that is given? In relation to mental disability or disorder, it may affect what type of sentence is passed – for example, in some cases it may be appropriate for offenders to be given a hospital order so they can be given psychiatric treatment in a secure location. The court would consider medical reports in reaching its decision.

Although there are no specific sentences for those with physical disabilities, the disability will nevertheless be considered in the sentencing process where it is relevant. The court would again consider medical reports and any personal mitigation. Although they do not make explicit mention of physical disability, sentencing guidelines produced by the Sentencing Council include a mitigating factor of “serious medical conditions requiring urgent, intensive or long term treatment”. These considerations may affect both the type and length of sentence, depending on the circumstances.

However, the weight given to the offender’s disability when deciding the sentence would depend on the nature of the offence.
For example, in one Court of Appeal judgment in a robbery case where a disabled offender appealed against his sentence of a substantial jail term, the original sentence was upheld. The judgment stated: “There is no absolute rule that a sentencing judge must reduce a sentence because the offender is disabled” but went on to say that a judge could do this depending on the situation. While the judge in this case took account of the offender’s disability, he concluded that the offender had taken part in a very serious robbery in which the victim was subjected to a brutal attack and that his disability had not stopped him from doing so.

In another Court of Appeal judgment, a sentence of three years’ imprisonment given to an offender for importing Class A drugs was reduced to 18 months because of his exceptional personal mitigation – he suffered from a combination of extremely serious medical conditions.

The judgment stated:
“A court passing sentence should not concern itself with the adequacy of medical arrangements in prisons, unless the mere fact of imprisonment would inevitably expose the prisoner to inhuman or degrading treatment contrary to art.3, in other words, arrangements could not be made which would avoid that consequence. However, a sentencing court was fully entitled to take account of a medical condition by way of mitigation as a reason for reducing the length of the sentence, either on the grounds of the greater impact which imprisonment would have on the offender, or as a matter of mercy in the circumstances of the case.”……

“Those who were gravely ill, or severely disabled, might have to be imprisoned if they committed serious offences. Their condition could not be a passport to absence of punishment.”

In essence therefore, judges and magistrates can take physical disability into account in the sentencing process and will do so in appropriate circumstances, but it does not excuse offending behaviour.

The principle that guilty pleas should be taken into account in sentencing is nothing new – Parliament has set this in law. The purpose of reducing sentences when offenders plead guilty is to get them to admit their guilt as early as possible.  When they do, it saves victims and witnesses the stress of going through a trial, such as having to relive their ordeal and being cross examined about it. It is especially important that where possible young and vulnerable victims should not be put through what could be for them a traumatic experience. It also improves the efficiency of the criminal justice system by reducing the number of cases that go to trial, allowing police, prosecutors and courts to focus on other cases, which will in turn be of benefit to other victims. The benefits that can be gained from a guilty plea still apply in cases where the prosecution evidence is overwhelming. If a defendant in such a case pleads guilty, witnesses and victims will still be spared anxiety and uncertainty about whether they will required to attend court and give evidence, and the resources of the justice system will still be saved the time and expense of preparing for a trial. The Sentencing Council is now proposing stricter rules for sentencing offenders who plead guilty, which you can read about and respond to here. It hopes to incentivise offenders plead guilty earlier in the process than they do at the moment, which will mean victims and witnesses know at an earlier stage that there will not be a trial, and free up more police and prosecutor time to deal with other crimes.