The way sentencing works can be confusing, and many people are unclear as to why offenders get the sentences they do and how those sentences are served. Here are some facts and explanations:
- Are sentences getting softer and fewer people being sent to prison?
- Do criminals get out of prison early without serving their full sentence?
- Do criminals who aren’t jailed just walk free from court?
- Are judges out of touch?
- Does a life sentence last for life?
- Why should a defendant get any time off their sentence for admitting their guilt?
- Do sentences reflect the seriousness of crimes?
- Why aren’t all offenders sent to prison?
- Are victims properly considered in sentencing?
- Does the surcharge go straight to the Treasury?
- Do guidelines stop judges passing the sentence they think is right?
Between 2012 and 2020 the prison population in England and Wales has been relatively stable. This is because of a combination of:
- a reduction in offenders being dealt with by the courts
- increases in the volume of serious offences being dealt with by the courts, which has led to longer immediate custodial sentences, and
- the recall population.
At the same time, most types of crime have been falling. The Crime Survey for England and Wales for the year ending March 2020 shows that long-term falls in overall crime since the mid-1990s have continued, with the size of the decline increasing even more compared with previous years. The estimated 9 per cent reduction is driven by significant falls in theft and criminal damage, and crime is at the lowest level since the survey was introduced in 1981, although some offences have increased, including those involving knives or sharp instruments, robbery and homicide.
Also, the most recent criminal justice statistics show that average custodial sentence lengths are the highest they have been in a decade. A detailed analysis of prison population trends can be found here.
When reading a media report about a particular case, it might appear that the sentence is too lenient or too severe. This can sometimes be because the report does not cover all the facts of the case, and the media tend to report the most extreme cases. Judges will normally produce sentencing remarks that explain their reasons for giving a particular sentence. Sentencing remarks for some high-profile cases can be found on the judiciary website.
A jail sentence means more than just time in prison. If an offender is sent to prison, the judge will decide how long they should spend in custody, but time in prison is just one part of the sentence. Offenders always complete their full sentence but usually half the time is spent in prison and the rest is spent on licence. While on licence, an offender can be sent back to prison if they break its terms.
The system of serving half a sentence in prison and half on licence was introduced by Parliament, and is not something that judges or magistrates have control over.
The phrase “walk free from court” often appears in media reports about situations where someone is found guilty but is not sent to prison. But these offenders will in fact face many restrictions on their freedom. The only time someone could genuinely “walk free” from court is when they are either acquitted – that is, when they are found not guilty – or when they receive an unconditional discharge.
If they are given a community sentence, they have to comply with up to 12 restrictions on them such as doing unpaid work for up to 300 hours, keeping to a curfew, a ban from going to particular places or doing certain activities or supervision by the Probation Service. A suspended sentence, which gives an offender the chance to mend their ways, comes with similar restrictions and, if they commit another crime or don’t keep to the requirements, they can be sent to prison.
Even if offenders get a conditional discharge, if they commit another crime they could find themselves back in court to be sentenced for the new offence as well as the original one.
All judges face the realities of crime in society every day, with all types of offenders coming before them from all sections of the community. Judges and the public are more in tune than many people think – when people are asked to sentence actual cases, the sentences chosen are similar to those that judges decide. You can see how you compare with judges by trying out You Be The Judge – listen to the facts of the case and pass your own judgment.
If an offender is given a life sentence, it does last for the rest of their life. They will serve a term in prison – for example the minimum term for a murder with a knife is 25 years – then they will be released on licence, which means they are subject to certain conditions for the rest of their life. If they break the terms of this licence, they will end up back in prison. The most serious offenders receive a whole life tariff, which means they will spend the rest of their life in prison.
Offenders who admit their guilt can get up to a third off their sentence. There are two key benefits to an early guilty plea. The first is that it saves victims and witnesses from having to give evidence, which can be traumatic, and they get a conclusion to their case much more quickly than they would if it went through a full trial. The second benefit is that it saves time and costs for all those agencies involved in the criminal justice system, including the police, the Crown Prosecution Service and the courts, so that their resources are focused on the most difficult cases. The principle of reductions for guilty pleas was introduced by Parliament – judges and magistrates decide the precise amount of time off to give the offender depending on when they enter their guilty plea. See the Council’s guideline Reduction in sentence for a guilty plea for more information on sentence reductions and when they apply.
There is always a clear logic to how sentences are decided but media reports of some cases can focus on a few key elements rather than all the facts of a case so it can be unclear why an offender got a particular sentence.
Judges and magistrates weigh up all the facts, how blameworthy the offender is and the level of harm they have caused, particularly to the victim, and use sentencing guidelines to reach a proportionate sentence. They look at aspects of the case that make the offence more serious and any factors that reduce its seriousness. The judge or magistrates must also consider other factors such as whether the offender pleaded guilty, which normally means a reduction in sentence, or whether they spent time in prison while awaiting trial and sentencing. This time is deducted from the overall sentence.
Some offences rightly deserve prison, but prison sentences aren’t appropriate for every crime and many are best dealt with in other ways. Community sentences aim to punish the offender for their crime while dealing with the reasons for the offence and preventing re-offending. Failure to comply with the requirements of a community sentence will bring the offender back to court and could mean a prison sentence is imposed. It is sometimes reported that an offender has “walked free from court” after sentencing if they have not been sent to jail. This isn’t true – all non-custodial sentences impose restrictions on the offender. A community sentence can require up to 300 hours of unpaid work from the offender and place them under other restrictions such as a curfew.
Sentences are decided based on the harm the victim suffers and the offender’s role – so the effect on the victim is therefore a crucial part in the decision as to what sentence an offender gets.
Courts also have a duty to consider compensation orders in all cases, which means that if the offender has the money to pay compensation to their victim, they can be required to do so. Also, the courts must order a surcharge – an extra amount added on – which is paid into a fund that helps improve services for victims of crime.
Income from the surcharge (sometimes referred to as the victim surcharge) contributes to the Ministry of Justice’s Victim and Witness Budget. It helps fund support for victims of rape, domestic violence, hate crime, burglary, anti-social behaviour as well as those bereaved by murder, manslaughter and fatal road traffic crimes.
Sentencing guidelines are intended to cover the vast majority of cases that come before the courts, so it will be very rare when a guideline does not suggest an appropriate sentence for an offence. While sentencers must follow guidelines in normal circumstances, if they think that the suggested sentence range in the guideline does not reflect the seriousness of an offence, they can sentence above that range up to the maximum allowed by law.