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Sentencing - Overview

Contents:

The Role of the Prosecutor in Sentencing

At the stage of sentencing the prosecutor has an important responsibility to assist the court to reach its decision as to the appropriate sentence. That role also extends to protecting the victim's interests in the acceptance of pleas and the sentencing exercise.

Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise: Rule B:4 provides:

The prosecution advocate represents the public interest, and should be ready to assist the court to reach its decision as to the appropriate sentence. This will include drawing the court's attention to:

  • any victim personal statement or other information available to the prosecution advocate as to the impact of the offence on the victim;
  • where appropriate, to any evidence of the impact of the offending on a community;
  • any statutory provisions relevant to the offender and the offences under consideration;
  • any relevant sentencing guidelines and guideline cases; and
  • the aggravating and mitigating factors of the offence under consideration.

The prosecution advocate may also offer assistance to the court by making submissions, in the light of all these factors, as to the appropriate sentencing range. R v H (J) [2012] 1 WLR 1416 sets out the principles to be followed when sentencing non-recent cases.

In R v Qayum [2010] EWCA Crim 2237 the Court of Appeal explained the importance of advocates being alert to the maximum sentencing powers available to judges as it is the duty of  both prosecution and defence advocates to check the court's sentencing powers and alert the court to 'traps for the unwary such as these'. This was confirmed in R. v. Brzezinski [2012] EWCA Crim 198.

In all cases, it is the prosecution advocate's duty to apply for appropriate ancillary orders, such as criminal behaviour orders and confiscation orders. When considering which ancillary orders to apply for, prosecution advocate must always have regard to the victim's needs, including the question of his or her future protection.

Case law shows that judges should not be slow to invite assistance from prosecuting counsel in these matters and counsel should be ready to offer assistance if asked. Attorney-General's Reference (no. 52 of 2003) (R v Webb) [2004] Crim LR 306, CA held that it is the duty of counsel for the prosecution, in a case where there were guideline sentencing cases, to indicate, before sentencing, to the judge that there were such authorities, and that copies were available should the judge wish to see them.

It is the absolute necessity for the prosecution advocate to assist the judge as to his sentencing powers (Attorney-General's Reference (No. 24 of 2008) (R v Sanchez) [2009] 2 Cr. App. R. (S) 41 CA).

However "while the prosecution is expected to assist the judge with the facts for the purpose of assisting with the management of the case, it is not the task of the prosecution to negotiate credit for guilty pleas. That judgment is solely for the sentencing judge having heard submissions" see Attorney General's reference (nos  41, 42, 43, 44 and 45 of 2011) [2011] EWCA Crim 2174 which also held that "There was nothing to stop the offenders from entering pleas of guilty at the plea and case management hearing, and of reserving agreement as to the basis of plea while explaining in terms to the judge why and how they had been placed in that position.  Section 144 of the Criminal Justice Act 2003 and the revised guideline "Reduction in Sentence for a Guilty Plea" dated July 2007, are not intended to be the subject matter of commercial negotiation between counsel, but an opportunity to acknowledge guilt early and thereby bring about a benefit to victims, the administration of justice and the offender."

It is not acceptable to have discussions with judges in chambers during which the acceptability of please is discussed in the absence of the defendant and the public. This practice does not serve the best interests of open, transparent justice. Such discussions should not take place save in truly exceptional cases where some particular sensitivity requires it. Prosecutors should seek the co-operation of the court to ensure that any discussions of the acceptability of pleas should take place in open court.

Judges sometimes give an indication to trial advocates of their view of the acceptability of pleas if they were to be offered. As a result of adverse comment in the case of Attorney General's Reference (No. 34 of 2010) (R v Simon Roland Langridge) [2010] EWCA Crim 2055, guidance has been issued that, where a judge wishes to indicate to the advocates his or her views of the viability of the case or the acceptability of pleas, this should be done in open court with a full recording of proceedings, in the absence of the jury but with both sides represented and the defendant present. Reporting restrictions can be applied in order to safeguard a situation where the indication is not accepted and the matter proceeds to trial. The procedure set down for sentence indication in R v Goodyear [2005] EWCA Crim 888 provides a suitable model for such discussions.

However while judicial indications may assist in the efficient management of the case, they should never be used as a means of pressurising the prosecution into accepting a plea which, in the view of the prosecution, is not in the best interests of justice. Responsibility for the acceptability of pleas and the continuance or otherwise of the prosecution remains that of the prosecution advocate.

The Criminal Procedure Rules, Rule 37.10(3) governs the procedure in the magistrates' court and provides:

The prosecutor must:

a) summarise the prosecution case, if the sentencing court has not heard evidence;
b) identify any offence to be taken into consideration in sentencing;
c) provide information relevant to sentence; and
d) where it is likely to assist the court, identify any other matter relevant to sentence, including -

(i) aggravating and mitigating factors;
(ii) the legislation applicable, and
(iii) any guidelines issued by the Sentencing Council, or guideline cases.

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The Basis of Plea

The Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise requires that when the defendant indicates an acceptable plea, the defence advocate should reduce the basis of the plea to writing. This must be done in all cases save for those in which the defendant has indicated that the guilty plea has been, or will be tendered on the basis of the prosecution case.

The written basis of plea must be considered with great care, taking account of the position of any other relevant defendant where appropriate. The prosecutor is under no obligation to accept a basis of plea offered by the defence, and the prosecution should not lend itself to any agreement whereby a case is presented to the sentencing judge on a misleading or untrue set of facts, or on a basis that is detrimental to the victim's interests. Prosecuting advocates should not accept a basis of plea which is different from the case originally advanced by the prosecution without considering the impact on the likely sentence.

In guilty plea cases the written basis of plea agreed between the defence and the prosecution can have a significant impact on the range of sentences that is open to the sentencer.  For this reason it is very important that the basis of plea provides a clear articulation of the facts on which the sentence has been passed.  Where the basis of plea is unclear or susceptible to differing interpretations or significantly different from the known facts, this can impact on whether it is realistic or possible to challenge the sentence that has been passed.

Where a proffered basis of plea is acceptable, both the defence and the prosecuting advocate should sign it, and it should be handed into the court. A copy should be retained in the prosecution papers.

Many issues raised by the defence are outside the knowledge of the prosecution, therefore the Crown lacks the evidence positively to dispute such assertions. In such cases, the Crown should not agree the defendant's account unless supported by other material, and if the proffered basis cannot be agreed, the prosecution advocate should make it clear to the court that this is the case. It is not sufficient to indicate merely that the prosecution cannot "gainsay" the defence account: R v H and Others [2009] EWCA Crim 2485, per Lord Judge LCJ.

If a defendant wishes to be sentenced on a basis which is not agreed, the prosecution advocate should invite the judge not to accept the defendant's version unless he or she gives evidence on oath to be tested in cross-examination. The Criminal Practice Direction [2013] EWCA Crim 1631 which came into force on 7 October 2013 states that in such circumstances the defence advocate should be prepared to call the defendant and, if the defendant is not willing to testify, subject to any explanation that may be given, the judge may draw such inferences as appear appropriate.

The CPD is at the following link:

http://www.judiciary.gov.uk/publications-and-reports/practice-directions/criminal-practice-directions

If a defendant wishes to be sentenced on a basis which is not agreed, the prosecution advocate should invite the judge not to accept the defendant's version unless he or she gives evidence on oath to be tested in cross-examination. The Criminal Practice Direction [2013] EWCA Crim 1631 which came into force on 7 October 2013 states that in such circumstances the defence advocate should be prepared to call the defendant and, if the defendant is not willing to testify, subject to any explanation that may be given, the judge may draw such inferences as appear appropriate.

The basis of plea principles apply equally to summary only and either-way cases prosecuted in the magistrates' court. Care should be taken not to accept guilty pleas on the basis of expediency and cost. The Criminal Procedure Rules Rule 37.10(5) governs the procedure in the magistrates' court and provides:

Where the defendant pleads guilty but wants to be sentenced on a different basis to that disclosed by the prosecution case:

a) the defendant must set out that basis in writing, identifying what is in dispute;
b) the court may invite the parties to make representations about whether the dispute is material to sentence; and
c) if the court decides that it is a material dispute, the court will -

(i) invite such further representations or evidence as it may require;
(ii) decide the dispute.

The CPR 2013 is at the following link:

http://www.justice.gov.uk/courts/procedure-rules/criminal/rulesmenu

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Plea and Sentence Document

In order to secure compliance with these responsibilities, the Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise require the prosecutor to prepare a Plea and Sentence Document (PSD) to assist the court when sentencing. This procedure has been endorsed in the Criminal Practice Directions [2013] EWCA Crim 1631 (as amended, see CPD VII, Sentecing A1) which came into effect on 7 October 2013.

The PSD is in addition to the written outline of the case which is served on the court. Within the CPS, a template for completion is available in Infonet forms section.

A completed PSD should provide very brief notes on the following matters:

  • any relevant statutory limitations on sentence;
  • the names of any relevant sentencing authorities or guidelines;
  • the scope for any ancillary orders (for example, concerning anti-social behaviour, confiscation or that deportation will need to be considered);
  • the age of the defendant; and
  • information regarding any outstanding offences known at the time: this information is most likely to need to be updated by the trial advocate at the actual sentencing hearing.

It remains open to the prosecutor to provide further written information (for example to supplement and update the analysis at later stages of the case) where he or she thought that likely to assist the court, or if the court requested it.

A PSD is not required in every case, but should be provided in any case, whether before the Crown Court or the Magistrates' Court, where such a document is likely to assist the court because the issues are complex or unfamiliar; and in all serious complex and high profile casses such as those handled in the Central Csework Divisions and Complex Casework Units.

A PSD is likely to be required mainly, but not exclusively, in cases where one or more of the following circumstances apply:

  • the dangerous offender or mandatory sentencing provisions will have to be considered in the event of a conviction; the PSD should identify the offences which are susceptible to the dangerous offender provisions and to mandatory minimum sentences;
  • the defendant is charged with offences having different maximum sentences depending on the date of commission or where some but not others are "specified offences" for the purposes of the dangerous offender provisions; this is likely to arise in cases involving repeated sexual offending or other complex multiple offending;
  • the defendant is a youth appearing in the Crown Court, in which case, the PSD should draw attention to the restrictions applicable to offenders aged 20 or under at the date of conviction and the different types of custodial sentence available to different age groups;
  • there is a summary only offence before the Crown Court; the PSD should specify the provision under which the summary offence has come before the court and any consequential limitations on the sentence;
  • conviction in the present case would constitute a breach of a previous court order; where there is more than one breach or the breached order was made by the Magistrates' Court but the current case is before the Crown Court, this should be specifically commented upon;
  • if it is known that the defendant has been the subject of an administrative recall while awaiting trial for the current offence;
  • conviction will lead to the making of a mandatory ancillary order; or 
  • the judge has requested one.

It is the responsibility of the trial advocate - either a Crown Advocate or a member of the self-employed Bar - to review the PSD after conviction and prior to sentence, in order to reflect any changes as to how the case is to be presented to the court. The trial advocate should also ensure that the relevant statutory provisions, sentencing guidelines and guideline cases are up-to-date in respect of each convicted count or charge. This will not necessarily require the document to be redrafted but the trial advocate must ensure that, when addressing the court on sentence, any changes that may have taken place since the PSD was first lodged are explained to the court.

The trial advocate should be prepared to supplement the information on the PSD if necessary, to assist the court to reach its decision as to the appropriate sentence. In particular, the advocate should check whether the defendant has been the subject of an administrative recall while awaiting trial for the current offence. The advocate should be familiar with the prohibition on consecutive sentences contained in section 265 of the Criminal Justice Act 2003 and the residual application of section116 and 117 of the Powers of Criminal Courts (Sentencing) Act 2000); it may also assist to remind the court that days which are subject to administrative recall cannot be included in any remand time direction under section 240 of the Criminal Justice Act 2003.

In preparing the PSD, prosecutors should note that the Court of Appeal has disapproved of excessive citation of authorities. Once relevant guidelines have been issued by the Sentencing Council, it should be the exception rather than the rule for advocates to cite previous cases: R v Tongue and Doyle [2007] EWCA Crim 561. Additionally, advocates should not cite authorities unless they establish a principle. Cases which merely restate an existing principle, or are illustrations of its application should not be cited: R v Erskine; R v Williams [2009] EWCA Crim 1425. The Court of Appeal has indicated that this approach will be rigidly applied.

The PSD should be prepared by the reviewing prosecutor, served on the defence, and lodged with the Crown Court at least 7 days before the Plea and Case Management Hearing (PCMH) in the Crown Court and at an equivalent point in the magistrates' court. This will allow for occasions where the defendant enters a guilty plea at the PCMH and the Court moves immediately to sentence.

Where a case is committed for sentence, or there is an appeal against conviction and/or sentence in the magistrates' court, it will be the responsibility of the advocate attending the magistrate's court to ensure that the reviewing lawyer is advised of the committal to the Crown Court. Where it is thought that a PSD would assist the Court, it must be prepared and lodged with the court 3 days before the relevant hearing date.

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CPS Sentencing Manual

The Director launched the CPS Sentencing Manual in October 2007.

The Manual consists of a series of templates covering the most frequently encountered offences and each template contains the information to assist the prosecutor in completing the PSD, in particular:

  • the relevant statutory limitations and maximum penalties;
  • sentencing guidelines and guideline cases;
  • identifies potential aggravating and mitigating factors for a given offence; and
  • draws attention to potentially appropriate ancillary orders.

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Advance indication of Sentence

In Attorney General's Reference (No. 34 of 2010) (R v Simon Roland Langridge) [2010] EWCA Crim 2055 the Court of Appeal expressed adverse concern about the communication between Judges and trial advocates. Langridge was charged with attempted rape. At the beginning of the trial the judge invited both counsel into chambers and gave his views about the strength of the prosecution case. The judge's comments resulted in the prosecution accepting plea of guilty to sexual assault (a plea that had been indicated at the Magistrates' Court within 3 days of the offence). As a result the Defendant was sentenced to 18 month's imprisonment, which was increased to 2 years 4 months on appeal by the Attorney General as being unduly lenient. Due to the Court of Appeal criticism the following CPS guidance was issued:

  • Responsibly for the acceptability of pleas and the continuance, or otherwise, of a prosecution remains that of the prosecution advocate; 
  • Where a judge wishes to indicate to advocates in a case his or her view of the viability of the case or the acceptance of pleas, this should be done in open court, in the absence of the jury, with both sides represented and the defendant present; 
  • Discussions with the judge in chambers on the acceptability of pleas in the absence of the defendant and the public should only take place in truly exceptional cases, where some particular sensitivity requires it; 
  • The procedure set down for sentence indications in R v Goodyear [2005] EWCA Crim 888 provides a suitable model for discussions - namely that any advance indication of sentence should normally be confined to the maximum sentence if a plea of guilty were tendered at the stage at which the indication was sought.

R v Omole (Kunle) [2011] EWCA Crim 1428 held that where the Defence request an indication of the bracket of the Definitive Guidelines into which the case falls a judge should treat it as a request for an indication of the maximum sentence in relation to all offences before him. Any deviation from the recommended formula can cause misunderstanding.

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Newton Hearings

Where there is a dispute as to the factual basis on which sentencing should proceed, the prosecutor should consider whether to call evidence in support of the Crown's case (see R v Newton (1983) 77 Cr. App. R. 13). Such a hearing should only be held if the defence, in mitigation, depart from the facts as opened by the prosecution in a manner which is material to the central issue and which is capable of belief, i.e. it is not so manifestly absurd or implausible that it would be a waste of the court's time to hear evidence (see R v Hawkins (1985) 7 Cr. App. R. (S) 351), and the departure is substantial and if accepted, is likely to affect sentence. For more detailed guidance see Newton hearings elsewhere in the Legal Guidance.

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Victim Personal Statement

The Victim Personal Statement (VPS) was introduced on 1 October 2001. It is intended to give the victims of crime an opportunity to describe the wider effects of the crime upon them and express their concerns.

The purpose of the VPS is to:

  • give victims an opportunity to state how the crime has affected them - physically, emotionally, psychologically, financially or in any other way;
  • allow victims to express their concerns in relation to bail or the fear of intimidation by or on behalf of the defendant;
  • provide victims with a means by which they can state whether they want information about for example, the progress of the case;
  • provide victims with the opportunity to state whether they want to claim compensation or request support from the Victim Support or any other agency;
  • provide the criminal justice agencies with a ready source of information on how the particular crime has affected the victim involved.

Full guidance is contained in the Criminal Practice Direction [2013 ] EWCA Crim 1631 Sentencing F: VICTIM PERSONAL STATEMENTS and provides:

  • the evidence must be in admissible form;
  • the court must pass what it judges to be the appropriate sentence having regard to the circumstances of the offence and of the offender taking into account so far as the court thinks it appropriate, the consequences of the offence to the victim; and
  • the opinions of the victim or the victim's close relatives as to the appropriate level of sentence are not relevant.

The CPD 2013 came into force on 7 October 2013 and can be found at:

http://www.judiciary.gov.uk/publications-and-reports/practice-directions/criminal-practice-directions

Prosecutors should receive the VPS from the police and consider its contents in the normal way. In either the Magistrates' Court or the Crown Court where the VPS is contained in the body of a witness statement, it should be served on the defence either as part of the prosecution case, if it is intended to adduce the evidence contained in the statement, or as unused material, if it is not. The defence and the court should be informed that where it has not otherwise been placed before the court that part of the statement which forms the VPS may be placed before the court in the event of a conviction.

If it is intended to use only part of the statement, the defence should be informed a soon as possible which parts are not to be used and suitable editing agreed.

Where the VPS is a separate statement, it should be served on the defence. If it is to be used at trial, this should be done under cover of notice under section 9 Criminal Justice Act 1967 or, in the Crown Court as part of the committal bundle. If it is not to be used the defence should be informed as soon as possible of the position with the caveat that the VPS may be placed before the court in the event of a conviction. At the Crown Court the original should be sent to the court with a notice to the effect that the VPS is not to be adduced in evidence and that it is served in accordance with the VPS provisions.

The Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise makes clear the importance of drawing the court's attention to any VPS or other information about the impact of the offence on the victim: (Paragraph B4).

The importance attached to a VPS was highlighted in R v Black & Gowan [2006] EWCA Crim 2306. In this case, the Court of Appeal, considering an unduly lenient sentence appeal, commented that it was incumbent on the prosecution to ensure that the judge had as much information as possible about the impact on the victim of the offence before proceeding to sentence, and that it was incumbent on the judge to call for such a statement before proceeding to sentence.

The Attorney General's Guidelines also provide that where appropriate, the prosecutor should draw the attention of the court to any evidence of the impact of the offending on a community.

The VPS scheme has been included in the revised Victims' Code for the first time. The revised Victims' Code came into force on 10 December 2013.  In addition to making a VPS, victims will be entitled to say whether they would like to read their VPS aloud or whether they would like it to be read aloud (usually by the CPS prosecutor).  There is a duty on the CPS not only to serve the VPS on the court but also to notify the court in good time of the victim's preference.  It will then be for the court to decide whether or not to allow the victim to read their VPS to the court.  There is an additional duty on the Witness Care Unit to notify the victim of the court's decision so that the victim can make arrangements to attend court if necessary. Changes will be required to the Practice Direction on VPS.

Businesses of all sizes who are victims of crime have been included in the new Victims' Code, enabling them to make an impact statement (in accordance with section 9 of the CJA 1967) setting out how the crime has affected them.  As with other victims, the business can indicate whether they would like to have the Business Impact Statement (BIS) read out in court but will not be given the opportunity to read it out in person. Making an ISB does not prevent an individual victim from making a separate VPS. Prosecutors must ensure that an ISB is brought to the attention of the court where appropriate.

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Evidence of Character and Antecedents: Previous Convictions

It is vital that the court has all the relevant antecedent history of a convicted person prior to sentencing.

On conviction, it is the responsibility of the prosecution to adduce evidence about the defendant's antecedents and previous convictions. This is usually done by the submission to the court of copies of antecedents and previous convictions prepared by the police in the prescribed manner. The Criminal Practice Direction [2013] EWCA Crim 1631 prescribes minimum standards for the provision of antecedent information in the Crown Court.

The CPD can be found at:

http://www.judiciary.gov.uk/publications-and-reports/practice-directions/criminal-practice-directions

The defendant's previous convictions and sentences (commonly referred to as his "antecedents") are relevant to the sentencing exercise in the following ways:

  1. They may go to the seriousness of the instant offences (Section 143 (2) (4) and (5) Criminal justice Act 2003);
  2. They may be indicative of the dangerousness of the offender, and the need for the public to be protected from him;
  3. They may provide evidence of the effectiveness of a particular method of disposal adopted previously in the case of the offender; or alternatively a particular measure was unsuccessful;
  4. They may provide an insight into the individual's criminal career, and, in particular, that he has made a real effort over a period of years to put a previous pattern of offending behind him.

If the antecedents are challenged, they must be proved by the strict rules of evidence. This can be done by the production of a certificate or document under sections 73 and 82 Police and Criminal Evidence Act 1984, or fingerprints under section 39 Criminal Justice Act 1948. Magistrates' Orders can be proved using the court register under Part 6 Criminal Procedure Rules 2005. If the defence query the circumstances relating to the conviction, consider the case of R v Hanson [2005] 2 Cr. App. R. 21, where Lord Justice Rose indicated that he expected that the relevant circumstances of previous convictions would generally to be capable of agreement, and that, subject to the trial judge's ruling as to admissibility, would be put before the jury by way of admission.

Section 144 of the Coroners and Justice Act 2009 amended section 143 of the Criminal Justice Act 2003 to allow our domestic courts to take into account foreign convictions

It is, therefore, important that the prosecution file contains all relevant foreign antecedent history at the earliest possible stage in proceedings in all appropriate cases. In relation to sentencing this is likely to include persons:

  • to be sentenced at the Crown Court where an assessment of 'dangerousness' may be made; and 
  • charged with a Class A drug trafficking or domestic burglary offence, where prior convictions could lead to the imposition of a mandatory minimum sentence.

For further details on where foreign antecedent data is likely to be of most relevance, and where a failure to request this information could have the most negative repercussions, see International Enquiries elsewhere in the Legal Guidance.

The findings of the Solicitors Disciplinary Tribunal are a public record and available on their website.

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The Rehabilitation of Offenders Act 1974

Under the Rehabilitation of Offenders Act 1974 (the Act) an offender who is sentenced to a period of thirty months imprisonment or less, becomes 'rehabilitated' once a certain period of time specified by the Act has passed. This means that the offender is treated for all purposes in law as though he or she had not committed, or been charged or prosecuted or convicted of the offence.

Prosecutors should refer to the Act to ascertain whether offences on the record of a defendant come within its provisions. Since 8 December 2008 cautions, conditional cautions, reprimands and warnings are all subject to the provisions of the Act.

By virtue of section 7(2)(a) of the 1974 Act rehabilitated or "spent" convictions are admissible in criminal proceedings where they are relevant to "the determination of any issue". This exception allows a sentencing court to have regard to all previous convictions including spent convictions in determining the appropriate sentence. However, there are special rules about how spent convictions are to be presented in court. These are found in the These are found in the Criminal Practice Directions [2013] EWCA Crim 1631 at CPD Evidence 35A: SPENT CONVICTIONS which provides that:

  • the court and advocates should avoid mention of a spent conviction wherever it can reasonably be avoided: Practice Direction paragraph 35A3; 
  • any spent convictions shown on a record of previous convictions handed to the court should be marked as such: Practice Direction paragraph 35A3; and
  • no reference should be made to the spent conviction in open court without the authority of the judge, which should not be given unless it would be in the interests of justice to do so: Practice Direction paragraph 1.6.6.

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Ancillary Orders

In all cases it is the prosecution advocates' duty to apply for appropriate ancillary orders, such as compensation, criminal behaviour orders and confiscation orders. When considering which ancillary orders to apply for, prosecution advocates must always have regard to the victims needs, including their future protection. See Sentencing - Ancillary Orders, elsewhere in the Legal Guidance.

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Taking offences into consideration

The practice of taking offences into consideration is a long standing convention which now has statutory footing by virtue of section 161 of the Powers of Criminal Courts (Sentencing ) Act 2000. The sentence passed is only in respect of the offences on the indictment or charges before the court.

Up until 11 June 2012 the current practice to be  applied when assessing the significance of the TICs is that the court is likely to attach weight to the fact that the defendant has co-operated with the police to clear up offences that might otherwise not have come to justice. However, the way in which the court deals with them will depend on context, for example, some may add little or nothing to the sentence, whilst others may aggravate the sentence and lead to a substantial increase, for example, where they show a pattern of criminal activity.

On 11 June 2012 the Sentencing Council's definitive guideline on TICs comes into force. This provides that "the sentence imposed on an offender should, in most circumstances, be increased to reflect the fact that other offences have been taken into consideration". There is a stepped approach that sentencers should follow. For full details of the guideline please go to:

http://sentencingcouncil.judicary.gov.uk

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Mitigation

The prosecution advocate should also challenge any assertion made by the defence in mitigation that is inaccurate, misleading or derogatory, see Derogatory or Defamatory Mitigation elsewhere in the Legal Guidance.

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Costs

Under Section 18 of the Prosecution of Offences Act 1985, the Court can order the payment of costs by a convicted defendant or in the Crown Court an unsuccessful appellant and a person committed for sentence or in breach of a Court order.

The Court can order the defendant to pay such costs as it thinks "just and reasonable". An order should be made where the defendant has the means to pay.

The prosecution application should be made before mitigation and sentence. Often the full background of the defendant will only come to light during mitigation and then the Court can make its decision. See Costs elsewhere in the Legal Guidance.

Victims Surcharge

Section 161A (1) of the Criminal Justice Act 2003 requires a court, when dealing with a person for one or more offences, to order the person to pay a surcharge. Currently, the surcharge is set at a fixed amount of £15. From 1 October 2012, following the Criminal Justice Act 2003 (Surcharge) Order 2012 (SI No. 2012/1696) the amount of surcharge paid by a Defendant upon conviction will vary depending on the sentence imposed. For offenders aged 18 or over the surcharge will range from a minimum of £15 (conditional discharge) to a maximum of £120 (life imprisonment). For offenders under 18, the surcharge will range from £10 to £20 and for Companies, it will range from £15 to £120. In cases of a mixed disposal, where the defendant is dealt with in different ways (e.g. a fine for one offence and custody for another) only one surcharge will be paid and the amount will be the higher of the possible options.

The 2012 Order made transitional provisions to ensure that the 2007 Order applied to any case in which the court dealt with an offender for one or more offences committed before 1 October 2012. Where an offender is dealt with by a court for more than one offence and at least one of these was committed either side of the 1 October 2012 implementation date, then the surcharge will be payable as specified by the 2007 Order.

If sentenced to custody, the Crown Court cannot permit the surcharge to be served as additional time in custody. At present this can happen in the magistrates' court. There will be legislation to address this anomaly. To allow time for this there will be a phased implementation on immediate custodial sentences (para 7.10 Explanatory memorandum to the CJA 2003 (Surcharge) Order 2012- 2012 No. 1696).

R v Stone [2013] EWCA Crim 723 held that on an appeal where no victim surcharge order had been imposed as it should have been, the appeal court will have no power to make such an order if the effect would be to increase the ultimate overall penalty. Therefore it is important to remind the Crown Court that care needs to be taken to impose the appropriate victim surcharge order.

The surcharge will be payable in the following amounts when the court deals with a youth by way of any of the following disposals:

a) a conditional discharge at £10;
b) a fine, a Youth Rehabilitation Order or Referral Order at £15; and
c) a custodial sentence of any length at £20.

The court has a discretion not to order the parent or guardian to pay the surcharge on behalf of the child.
The Ministry of Justice Circular - "Victim Surcharge- Approach to Ordering Payment from Offenders under 18" published on 18 January 2013 states that the court may conclude it is appropriate to exercise that discretion where the parent is a victim of the child's offending. Whilst the surcharge would still need to be ordered its payment could be deferred until the child would be likely to be able to pay the surcharge themselves e.g. after turning 18.

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Parity of sentence

Where one of two co-defendants is amenable to a particular form of sentence, but the other is not, it is wrong in principle to impose the particular form of sentence on the one that is amenable and then a term of imprisonment on the other (R v Berry, 7 Cr. App. R (S) 392 CA).

A difference in the sentence imposed may be justified by their different roles in the offence (R v Belton and Petrow [1997] 1 Cr. App. R (S) 215 CA) or if the offence by one of them represents a breach of trust.

It is appropriate for the court to distinguish between offenders by reason of age, especially where one is much younger.

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Totality

The Sentencing Council has published definitive Guidelines on three overarching aspects of sentencing: allocation, offences taken into consideration (TICs) and totality which came into force on 11 June 2012.
The totality guideline reflects existing sentencing principles and can be accessed at:.

http://sentencingcouncil.judiciary.gov.uk/guidelines/guidelines-to-download.htm

The Sentencing Council for England and Wales

The Sentencing Council (SC) came into being on 6 April 2010, replacing both the Sentencing Advisory Panel and the Sentencing Guidelines Council. It produces Guidelines, which "all sentencing courts must follow" (Section 125, Coroners and Justice Act 2009), unless a court is satisfied that it would be contrary to the interests of justice to do so. Prosecuting advocates must therefore be familiar with the guidelines, whether issued by the Sentencing Council or its predecessor body.

If the court is of that opinion that the interests of justice require it to depart from a sentencing guideline it is required by virtue of section 174(2) of the Criminal Justice Act 2003, as amended, to state its reasons for so doing (but see transitional provisions, below). In this connection, the specific wording of section 125(3) of the 2009 Act should be noted. The effect of that section is that the court's duty is to sentence within the range of sentences for the offence as a whole (as opposed to the range specified for the particular level). This means that where the guideline separates the offence into different levels of seriousness, the acceptable range of sentences runs from the sentence applicable to the lowest end of the least serious category to the top end of the most serious category. The duty to give reasons under section 174 of the 2003 Act applies only when the court imposes a sentence which falls outside that extended range.

The duty to follow sentencing guidelines is subject to various statutory provisions, for example, those which place restrictions on imposing community sentences and imposing discretionary custodial sentences; the requirement that custodial sentences should be for the shortest term commensurate with the seriousness of an offence and the requirements for minimum sentences in certain cases, such as "three-strike" domestic burglaries. The duty to impose a sentence within the identified range is also subject to the requirements to take into account an early guilty plea, the reduction in sentence for providing assistance, and any rule of law as to reducing sentences under the totality principle.

Re AG Ref (Nos 19, 20, and 21 of 2013) sub nom R v Prince Umoh: R v Hamse Digale: R v Mahud Nuur [2013] CA (Crim Div) 20/06/2013 emphasised that the judge had a duty to follow the guidance set out in the sentencing guidelines. Accordingly where the judge had failed to follow the Sentencing Guidelines Council Robbery Guideline and had placed too much emphasis on the young age of the offenders rather than the seriousness of the offence, the sentence was unduly lenient.

R v Justin James Young [13/11/2013] CA (Crim Div) reiterated the principle that Judges can in some circumstances depart from the sentencing guidelines but when doing so they are under a duty to explain their reasons for doing so.

All current guidelines are available on the Sentencing Council website.

In R v Bao [2008] 2 Cr. App. R (S) 10 the Court of Appeal indicated that as long as the sentencing regime or maximum sentence had not changed, a judge would be obliged to follow the most recent guidelines if promulgated before sentencing. This would be so, even when the new guideline had been promulgated after the offence or conviction or guilty plea, and even if it had increased the "tariff" for the particular offence.

In Attorney General's Reference (no 61, 62 and 63) of 2011 [2011] EWCA Crim 2619 the Judge made reference to draft guidelines in relation to drug offences. The Lord Chief Justice, Lord Judge, made very clear the limited use to which a draft guideline might be put. He said "Until there is a definitive guideline issued by the Sentencing Council, although the proposals of the Sentencing Advisory Panel are of considerable interest as part of the background which sentencing judges may wish to bear in mind, the proposals themselves do not constitute guidance to sentencers which serve to displace, or amend or in any way undermine the authority of the guidance issued in guideline decisions of this court."

Magistrates' Court Sentencing Guidelines (MCSG)

A revised version of the Magistrates' Court Sentencing Guidelines - Definitive Guideline (MCSG) was published in August 2008, and has been updated regularly since. It is the most extensive guideline produced by the Council and covers most of the offences regularly coming before a Magistrates' Court which require decisions on allocation or on sentence. The guideline also contains explanatory material that sets out a common approach to more general issues. For the first time, there is a statutory obligation on every court to have regard to this guideline in a relevant case and to give reasons when imposing a sentence outside the range identified.

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Reduction in Sentence for a Guilty Plea

As a general principle (rather than a matter of law) an offender who pleads guilty may expect some credit in the form of a discount in sentence. Section 144 CJA 2003 does not confer a statutory right to a discount which remains a matter for the court's discretion.

Where a judge takes a plea of guilty into account, it is important that he says he has done so (R v Fearon [1996] 2 Cr. App. R (S) 25 CA).

In R v Buffrey 14 Cr. App. R (S) 511 the Court of Appeal indicated that while there was no absolute rule as to what the discount should be, as general guidance the Court believed that something of the order of one-third would be an appropriate discount. This coincides with the guidance of the Sentencing Guidelines Council (SGC) issued in 2007 which recommends:

  • one-third discount for a Guilty plea at the first opportunity;
  • one-quarter discount for a Guilty plea after the trial date is set;
  • one-tenth discount for a Guilty plea at the door of court/after trial begun.

Where the court is dealing with an offence which attracts a mandatory minimum sentence under section 110 or section 111 of the Powers of Criminal Courts (Sentencing) Act 2000, the discount given for a guilty plea cannot exceed one fifth of the prescribed minimum sentence: Criminal Justice Act 2003 section 144(2).

In Caley and Others v The Queen [2012] EWCA Crim 2821, the Court of Appeal dealt with a number of conjoined cases involving discounts for guilty pleas. Building on the existing SGC guideline, the Court of Appeal addressed a number of issues including the following:

First reasonable opportunity - the Court of Appeal held that an admission in interview is a mitigating factor and not an "indication of guilty plea" for a percentage adjustment. The first "reasonable opportunity" to indicate a guilty is not the PCMH but rather at an appearance in the magistrates' court where an indication of plea is invited, or immediately on arrival at the Crown Court (whether at a preliminary hearing or by way of a locally approved system for indicating plea through solicitors). A plea at PCMH should therefore attract a discount on sentence of 25% rather than the full 33%.

Overwhelming evidence cases - the cautious terms of the SGC guideline on this topic are deliberate and wise.  The various public benefits which underlie the practice of reducing sentence for a plea of guilty apply just as much to overwhelming cases as to less strong ones. Judges ought to be wary of concluding that a case is "overwhelming" when all that is seen is evidence which is not contested.  Even when the case is very strong indeed, some defendants will elect to force the issue to trial, which is their right.  It cannot be assumed that defendants will make rational decisions or ones which are born of any inclination to co-operate with the system, but those who do merit recognition. In any event, the guidelines make clear that normally at least a one-fifth reduction ought to be made, however 'overwhelming' the evidence. This was approved by the Court of Appeal in the case of R v Cody [2014] EWCA Crim 1819 , involving death by dangerous driving where it was held to be within the discretion of the judge to give only a 20% discount as "there was no plausible basis on which this indictment could have been contested".

Newton hearings - the Court of Appeal supported the SGC Guideline (paragraph 4.3(iv)) but did not think that it was either necessary or possible to attempt to lay down a rule as to what (if any) reduction for plea should survive an adverse Newton finding.  It will depend on all the circumstances of the case, including the extent of the issue determined, on whether lay witnesses have to give evidence and on the extra public time and effort that has been involved.

Residual flexibility - the Court of Appeal recognised the need for judges to be able to treat individual cases individually. They gave three examples. One is the case of murder where there is real necessity for advice on the availability of a defence, whether self defence, lack of intent, or the partial defences of diminished responsibility or of loss of control. The second was the possibility of poor legal advice. A third case which is sometimes treated as meriting exceptional treatment is the particularly long and complex trial, whether in fraud or otherwise (such as people trafficking, complex drug cases, serial sex abuse cases with many complainants and the like). Since the rationale for the reduction in sentence for plea is the public benefit that follows, the Court of Appeal left open the possibility that in some such cases, unusually, some considerable benefits may well ensue from a plea of guilty even at a late stage. The necessary residual flexibility which must  remain does not, however, extend to suggesting an investigation in every case of the savings which have or have not actually ensued.  The basis for the reduction for a plea of guilty lies in the incentive provided, not in an ex post facto enquiry into what would or might have happened if a different course had been taken.

R v T [unreported - CA (Crim Div) 17/05/2013] held that credit for a guilty plea was to reflect savings to the public purse and the avoidance of requiring complainants to give evidence and be cross-examined; it was not to be given solely for showing remorse.

R v Osama Hamed [2013] EWCA Crim 926 held that the defendant was entitled to full credit for a guilty plea because it was based solely on the prosecution facts of the case. Accordingly that credit could not be reduced because of his subsequent untruthful evidence in the trial of his co-defendants.

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Required Custodial Sentences for certain Offences

Sections 110 and 111 of the Powers of Criminal Courts (Sentencing) Act 2000 provide for minimum sentences for certain repeat Class A drug and domestic burglary convictions. The Coroners and Justice Act 2009 requires that previous convictions in EU Member States (and, for domestic burglary, a conviction in Scotland or Northern Ireland) must also be considered, provided that the offence to which the conviction relates would have constituted a Class A drug trafficking offence, or a domestic burglary if it were done in England and Wales, at the time of the conviction. However only offences committed after the time that the amendments came into force will be relevant.

See Mandatory and Minimum Custoidal Sentences elsewhere in Legal Guidance.

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Fifty-six Day "Slip Rule"

Under Section 155 Powers of Criminal Courts (Sentencing) Act 2000, the Crown Court has the power to alter a sentence or other order made by the Crown Court within 56 days of the date on which it was made.

The usual reason for altering the sentence is that further information relevant to the sentence has become available to the court; or the court has overlooked some statutory provisions limiting its powers; or the sentence is found to take effect in an unexpected manner.

Prosecutors should give consideration to using the "slip rule" where defendants "celebrate", on the steps of the court or on social networking sites, the leniency of the sentence in circumstances where their comments conflict with statements made in mitigation regarding remorse etc.  R v Hart [1983] 5 Cr. App. R. (S.) 25 approved in principle the exercise of this power where it was established that the offender had casued false information to be given in mitigation. In that case the offender was given a suspended sentence on the basis he was going to live in Italy where he had a job. Later a newspaper reported that he was boasting that the story about Italy had been concocted. Held: Had the application been brought within the time limit then a variation to impose an immediate custodial sentence would have been very proper. Similarly in R v McLean [1988] 10 Cr. App. R. (S.) 18 the sentencing judge accepted mitigation to the effect that the offender had seen the error of his ways and intended to turn over a new leaf and therefore imposed the minimum sentence of 3 years for an offence of robbery. When the Defendant almost immediately escaped it was held acceptable for the sentencing judge to vary the sentence by increasing it to 4 years on the basis that the escape gave the lie to the mitigation which had earlier been accepted. However the judge should not decide that false information has been put before the court without a proper inquiry and allowing the offender to give evidence (see R v Tout 15 Cr. App. R. (S) 30 CA). Misbehaviour in the dock immediately after the sentence is imposed, by shouting abuse or otherwise should be dealt with as a contempt of court (R v Powell 7 Cr. App. R. (S.) 247 CA).

The Unduly Lenient Sentence (ULS) regime should not be used when it is more appropriate to apply the 56 day slip rule to correct an unlawful sentence, for example, when a mandatory order has been omitted or a mandatory minimum sentence or term has not been applied.

However, in such cases, CPS Areas should ensure that the court addresses the error under the slip rule well within 28 days of sentence. This is in order to ensure that the possibility of a ULS reference within the 28 day time limit remains open in the event that the court declines to alter the sentence under the slip rule. If the sentence is correct in law then the proper approach is to consider whether the criteria for referring the case as an unduly lenient sentence are met.

Areas should contact the Unduly Lenient Sentence Team in the Appeals Unit of the Special Crime and Counter Terrorism Division and the Attorney General's Office at an early stage to discuss and agree the approach.

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Referral of Unduly Lenient Sentences

The Attorney General (AG) has the power to refer to the Court of Appeal a sentence passed in the Crown Court which appears to be so lenient that it damages public confidence because it falls outside the range of sentences that the judge could reasonably have imposed. There are strict limitations on the scheme, which only applies to sentences for certain offences. Any application by the AG must be made within 28 days of sentence. This time limit cannot be extended.

The purpose of a referral is to allow the Court of Appeal to consider and, where appropriate, to increase sentences which are unjust or wrong in principle and need to be corrected. The Court does not engage in "tinkering" with sentences merely because they are marginally lower than might be expected having regard to any relevant sentencing guidelines or case law.

If the prosecutor or advocate involved with the case considers that the sentence may be unduly lenient, it should be referred to ULS Team and the AGO immediately.

Prosecutors should remind victims and witness who are dissatisfied with the sentence that, as members of the public, they have the right to go to the Attorney General direct, regardless of whether the prosecutor considers there is merit in referring the sentence. It is the AG who decides whether to refer a case to the Court of Appeal. As part of any explanation of this process, prosecutors should emphasise the 28 day time limit and provide details of the Attorney General's Office address or the Correspondence Unit at AGO who can be contacted using the details below:

Email: correspondenceunit@attorneygeneral.gsi.gov.uk
Telephone: 020 7271 2492.
For more information please see the Unduly Lenient Sentence legal guidance.

 

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Time spent on remand

Section 67 Criminal Justice Act 1967 applies to offences committed before 4 April 2005 and sections 240 & 241 Criminal Justice Act 2003 applies to offences committed after 4 April 2005. Both provide that the length of the prison sentence should be reduced by the period spent on remand. The main distinctions between the two Acts are:

  • Police detention does not fall within the ambit of a remand in custody under section 242(2) of the 2003 Act;
  • More importantly, the deduction for time spent on remand no longer follows automatically for sentences to which section 240 applies. The court is required positively to order that the days during which the offender is remanded in custody in connection with the offence or a related offence shall count as part of the sentence. Without a specific order, no deduction can be made.

Time spent in custody in connection with a fresh offence while the defendant is serving a sentence of imprisonment following his recall after release on licence, does not form part of the "relevant period" for the purposes of either section 39(6) of the Criminal Justice Act 1991 or section 254(6) of the 2003 Act, and therefore would not fall to be deducted from the sentence imposed for the fresh offence.

Section 240 Criminal Justice Act 2003 (requiring that a court must normally direct that time served by the defendant on remand should count towards the sentence) was repealed on 3 December 2012 by Section 108 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. It was replaced with a new section 240ZA which provides that the time served will count automatically (subject to the usual caveats about such time only counting once).

Section 240ZA will apply to imprisonment, detention in a young offenders institution (YOI), detention under section 91 of the PCC(S)A 2000, and the extended sentence of imprisonment or detention in a YOI.

R v Jonsyn [2014] EWCA Crim 239 confirmed that the position is that from the beginning of December 2012 courts have not been required to, and ordinarily should not, give any indication as to credit for time spent on remand. The proper approach will be for the court to decide on sentence without reference to any possible effect of administrative crediting of time spent on remand. This case also held that consecutive sentences can't both have credit for time spent on remand, otherwise this would be double counting in favour of the defendant and has been abolished by Section 240ZA (4) of the Criminal Justice Act 2003 which provides:

"If, on any day, on which the offender was remanded in custody, the offender was also detailed in connection with any other matter, that day is not to count as time served."

Although crediting remand time towards determinate sentences became an administrative task (save where there had already been a direction of the court) there is an exception whenever a life sentence, other than a whole life sentence, is imposed. In those cases the minimum term must be specifically adjusted by the judge to take into account time spent remanded into custody or subject to a qualifying curfew.

In relation to life sentences fixed by law in which the minimum term would be adjusted for the time spent on remand the provisions are still contained in Section 269(3)(b) of the Criminal Justice Act 2003 as amended and supplemented by paragraph M.13 of the Criminal Practice Direction (Sentencing) [2013] EWCA Crim 1631. Accordingly, there has been no substantive change when dealing with life sentences for murder.

Similarly there is no change in the requirement for the sentencing judge to take into account remand time when passing a life sentence that is not fixed by law (other than a whole life sentence) in accordance with Section 82A (3) (b) of the Powers of Criminal Courts (Sentencing) Act 2000 and paragraph L5 of the Criminal Practice Direction (Sentencing) [2013] EWCA Crim 1631.

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Release and re-offending during periods of post release licence

As soon as a prisoner has served one half of a determinate sentence of 12 months or more, it is the duty of the Secretary of State to release him on licence - section 244 of the Criminal Justice Act 2003.

The release and licence provisions relating to prison sentences of less than 12 months are set out in section 33 of the Criminal Justice Act 1991.

A prisoner who is serving an extended sentence under sections 227 or 228 of the Criminal Justice Act 2003 will also be released when they have served one half of the appropriate custodial sentence - section 247 Criminal Justice Act 2003.

However these provisions came into effect on 4 April 2005 therefore it is important to check the antecedents carefully to determine if the 1991 Act or 2003 Act applies.

If a person who has been released on licence pursuant to section 244 of the 2003 Act commits further offences during the licence period, he will be prosecuted in the usual way for the new offences. It is for the Secretary of State to decide what action is to be taken in respect of the breach of licence. Breach normally results in revocation of the licence and an "administrative" recall to prison under section 254 of the Act. A person whose licence has been revoked is unlawfully at large until he surrenders or is arrested: section 254(6).

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Breach proceedings

Breach of Community Penalty

Where an offender is brought before the court for breach of a community penalty, there is no power for a CPS prosecuting advocates to prosecute the breach. Breaches are prosecuted by the probation service or, in the case of curfew orders, the monitoring contractor (or lawyers instructed by them).

However once the breach has been proved and the court has determined that the offender falls to be re-sentenced for the original offence, prosecutors are under a duty to present the facts of the original offence and will take over conduct of proceedings.

In order to re-sentence, the prosecuting advocate must provide to the court sufficient information about the original offence and ensure its availability if required.

What constitutes 'sufficient information' was outlined by Toulson J in R v David Clarke [1997] 2 Cr. App. R 163. Not only should the prosecution be in a position to put before the court the breach but also the facts of the original offence - at least in outline - together with any relevant information about his co-defendants, their antecedent histories and the sentences passed on them.

The best way is for the CPS to obtain the original file in advance and bring it to court. This is only possible there is advance notice of the breach proceedings. Even then, it is not always easy or practical to locate the relevant file, particularly if the earlier offence is of some antiquity. As an alternative, the necessary information required for re-sentencing can often be found in the pre-sentence report (PSR) information package that the CPS sent to probation prior to the imposition of the community sentence that is the subject of the breach proceedings. Probation will also have the necessary evidence from its own sources to prove the actual breach.

Alternatively, the CPS could wait until the breach is proved and then seek to obtain the file, but this would necessitate an adjournment in the case, which is inconvenient and expensive for the court, the offender and other court users. Further, it is good practice to have the offender re-sentenced by the court that dealt with the breach proceedings, and this may not be practicable where the sentencing exercise is adjourned.

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Breach of Curfew Orders

Whereas with most breaches the probation service can provide papers to the prosecuting advocate, where there is a breach of a curfew order, the breach is likely to be prosecuted by the monitoring contractor who will not have had access to the PSR package (as this would be a breach of the Data Protection Act) and so would not be in a position to hand it to the prosecuting advocate at court.

In such cases CPS Areas will have to negotiate its own arrangements with the local Probation Service to resolve the question of how and when the prosecuting advocate obtains the requisite information. This will depend on local conditions, such as the location and ease of access to original files, the local listing arrangements, attitudes to adjournments and the likely levels of co-operation between the organisations involved.

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Breach of Attendance Centre Order

Under Powers of Criminal Courts (Sentencing) Act 2000, Schedule 5 breaches of these orders are dealt with by the person in charge of the order. The CPS prosecutor is simply required, on conviction, to alert the court to the existence of such an order.

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