Sentencing - Overview

Updated 10/09/2019|Legal Guidance

The role of the prosecutor in sentencing

The prosecutor has an important responsibility to ensure fairness both to the defendant and the victim regarding the acceptability of pleas and assistance to the court at sentence.  

The Attorney General’s Guidelines on the Acceptance of Pleas and the Prosecutor’s Role in the Sentencing Exercise paragraph 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 role of the Prosecutor is also covered by the Criminal Procedure Rules: Rule 24.11 and 25.11 respectively for the Magistrates’ Court and the Crown Court.

In 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 accordingly. It is the prosecution advocate’s duty to apply for or to remind the court of its powers in respect of appropriate ancillary orders, for example, compensation orders, criminal behaviour orders or 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 their future protection.

The Basis of Plea

The Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise (see earlier) require 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, except 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.

The written basis of plea agreed between the defence and the prosecution can have a significant impact on the range of sentences that is available; therefore 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 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 basis of plea is acceptable, both the defence and the prosecuting advocate should sign it, and it should be handed into the court. The prosecution should retain a copy.

Some issues raised by the defence may be outside the knowledge of the prosecution. In such cases, the Crown should not agree the defendant's account unless supported by other material, and if the advanced 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 contradict 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 they gives evidence on oath to be tested in cross-examination. 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 cases prosecuted in the magistrates' court. Care should be taken not to accept guilty pleas on the basis of expediency and cost.

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

  • The defendant must set out that basis in writing, identifying what is in dispute;
  • The court may invite the parties to make representations about whether the dispute is material to sentence; and
  • If the court decides that it is a material dispute, the court will:
    • invite such further representations or evidence as it may require; and
    • rule on the dispute.

Sentencing notes

A Note on Sentence is not required in every case, but should be provided, either before the Crown Court or the magistrates' Court, where it is likely to assist the court because the case issues are complex or unfamiliar, including serious, complex and high profile cases such as those handled by the Central Casework Divisions and Complex Casework Units.

A Note on Sentence should address 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), if it is considered likely to assist the court, or if the court requested it.

In preparing the Sentencing Note, prosecutors should have regard to the fact that the Court of Appeal has disapproved of excessive citation of authorities. Once relevant guidelines have been issued by the Sentencing Council (see below), it should be the exception rather than the rule for advocates to cite previous cases: R v Tongue and Doyle[2007] EWCA Crim 561 at paragraph 13. 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 Sentencing Note should be prepared by the reviewing prosecutor, served on the defence, and lodged with the Crown Court in good time ahead of any hearing at which it is anticipated the defendant may be sentenced, which may include hearings where a guilty plea is anticipated and the court will seek to proceed to sentence. Counsel may be asked to draft the Sentencing Note or otherwise to assist with it, but ultimately the prosecutor must ensure it presents the prosecution case fairly and accurately, and assists the court as to the relevant sentencing framework.

Advance indication of sentence

The procedure by which a defendant can obtain an indication as to the sentence to be imposed upon a plea of guilty is governed by the decision in R v Goodyear[2005] EWCA Crim 888. At the defendant’s request, the court can indicate the maximum sentence it would impose were the defendant to plead guilty at that stage of the proceedings. Proceedings should be held in open court.

In its judgement in Goodyear, the Court of Appeal stated that Defence counsel is personally responsible for ensuring that their client is advised that, “any sentence indication given by the judge remains subject to the entitlement of the Attorney-General (where it arises) to refer an unduly lenient sentence to the Court of Appeal”.

Prosecution counsel’s duties include, firstly, a duty to remind the Court that it should not provide an indication in the absence of an agreed basis of plea or a finding by the Court that a Newton hearing is not required; secondly, a duty to enquire whether the Court is in possession of all the relevant evidence and the offender’s antecedents; thirdly, the Court stated –

“If the process has been properly followed, it should not normally be necessary for counsel for the prosecution, before the judge gives any indication, to do more than, first, draw the judge's attention to any minimum or mandatory statutory sentencing requirements, and where [they] would be expected to offer the judge assistance with relevant guideline cases, or the views of the Sentencing Guidelines Council, to invite the judge to allow him to do so, and second, where it applies, to remind the judge that the position of the Attorney-General to refer any eventual sentencing decision as unduly lenient is not affected”.

It is clear from the authorities that the conduct of Prosecution counsel is highly relevant to whether the Court of Appeal is likely to interfere with a sentence referred to it as unduly lenient.

The Court of Appeal will scrutinise the circumstances in which the indication was given and, where prosecution counsel has encouraged the plea and the offender has not been warned as to the Attorney’s powers, giving rise to a legitimate expectation that the case will not be referred, and subsequently acts to their detriment by pleading guilty, it may decline to interfere.

The procedural provision in relation to the making of an application for an advance indication as to sentence is found in rule 3.23 of the Criminal Procedure Rules 2015 as amended.

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 the court. Any deviation from the recommended formula can cause misunderstanding.

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 (1982) 77 CA 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.

The case of R v Underwood(2004) EWCA Crim 2256 provides further guidance on the subject. For more detailed guidance see Newton hearings elsewhere in the Legal Guidance.

Victim Personal Statement

The Victim Personal Statement (VPS) is intended to give the victims of crime an opportunity to describe the wider impacts of the crime upon them and express their concerns. See Legal Guidance on Victim Personal Statements.

Evidence of Character and Antecedents: Previous Convictions

It is vital that the court has all the relevant previous conviction 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 provision of information on antecedents in the Crown Court and magistrates' courts is dealt with in Criminal Practice Directions II (Preliminary proceedings), paras. 8A.1 to 8A.8.

The defendant’s previous convictions and sentences are relevant to the sentencing exercise in the following ways:

  • They may go to the seriousness of the instant offences (Section 143 (2) (4) and (5) Criminal justice Act 2003); 
  • They may be indicative of the dangerousness of the offender, and the need for the public to be protected from him; 
  • 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;
  • They may provide an insight into the individual’s criminal career, and, in particular, that they have made a real effort over a period of years to put a previous pattern of offending behind them.  

If the antecedents are challenged the disputed material should either be omitted, or proved by admissible evidence.

Section 143(4) of the Criminal Justice Act 2003 makes it clear that 'previous conviction' in this context means a previous conviction by a court in the UK or a previous conviction of a service offence within the meaning of the Armed Forces Act 2006 or a previous conviction in another EU Member State of a 'relevant offence'. Section 143(5), allows the court to treat a previous conviction by a court outside the UK as an aggravating factor in any case where the court considers it appropriate to do so.

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. (Sections 110 & 111 of the PCC(S)A 2000 were amended to provide for the treatment of previous convictions elsewhere in the UK or in another EU Member State. The amendment took effect from 15 August 2010. A previous drug trafficking conviction or domestic burglary conviction which took place outside England and Wales is a relevant offence for the purposes of those sections only if it was committed after that date.)

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 elsewhere in Legal Guidance under the heading International Enquiries

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 they 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.

Rules about how spent convictions should be presented can be found in Criminal Procedure Rules Part 21 and CPD V Evidence 21A:

  • The record supplied should contain all previous convictions, but those which are spent should, so far as practicable, be marked as such;
  • No one should refer in open court to a spent conviction without the authority of the judge, which authority should not be given unless the interests of justice so require;
  • When passing sentence the judge should make no reference to a spent conviction unless it is necessary to do so for the purpose of explaining the sentence to be passed.

Ancillary Orders

In all cases it is the prosecution advocates’ duty to apply for appropriate ancillary orders, such as compensation, restraining orders, 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.

Taking offences into consideration (TICs)

For complete guidance on the operation and applicability of these, please see the standalone legal guidance chapter on TICs.

Mitigation

The prosecution advocate should also challenge any assertion made by the defence in mitigation that is inaccurate, misleading or derogatory. Prosecuting advocates should be proactive in ensuring that derogatory or defamatory statements in mitigation are handled robustly.

The duties and responsibilities of advocates relating to derogatory or defamatory mitigation are contained in Paragraph E of the Attorney General’s Guidelines on Acceptance of Pleas and the Prosecutor’s Role in the Sentencing Exercise [revised 2009] and Section 58 of the of the Criminal Procedure and Investigation Act 1996 (CPIA) introduces an additional safeguard by providing for orders to be made by the court preventing the media from reporting derogatory or defamatory mitigation.

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 elsewhere in the Legal Guidance under Costs.

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. The amount of surcharge paid by a Defendant upon conviction will vary depending on the sentence imposed and whether the defendant was under 18 years or 18 years or over at the time the relevant offence was committed. The schedule can be found here. If sentenced to custody, the Crown Court cannot permit the surcharge to be served as additional time in custody. 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 court has discretion not to order the parent or guardian of a youth 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.

Parity of sentence

In R v Berry, 7 Cr. App.R (S) 392 CA, the Court reiterated that when there is a joint offence, the offenders should be tried and sentenced by the same Court to avoid the problem of perceived disparity as in this case. In this case, twelve months' youth custody for burglary was reduced to six, where the appellant's accomplice had been ordered to perform community service as an exceptional measure. A difference in the sentence imposed may be justified by the different roles of the offenders 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.

Totality

The principle of totality requires the Court, when sentencing an offender for more than one offence, to impose a total sentence which reflects the overall criminality and is just and proportionate. This is so whether the sentences are structured as concurrent or consecutive. Therefore, concurrent sentences will ordinarily be longer than a single sentence for a single offence. It is necessary to address the offending behaviour, together with the factors personal to the offender as a whole.

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

https://www.sentencingcouncil.org.uk/overarching-guides/magistrates-court/item/totality/

The Sentencing Council

The primary role of the Sentencing Council (SC) is to issue guidelines on sentencing which the courts must follow unless it is in the interests of justice not to do so. (Section 125, Coroners and Justice Act 2009). Prosecuting advocates must therefore be familiar with the guidelines, whether issued by the SC or its predecessor body, the Sentencing Guidelines Council.

The Definitive Guidelines specify the range of sentences appropriate for each type of offence. Within each offence, the Council has specified categories which reflect varying degrees of seriousness. The offence range is split into category ranges – sentences appropriate for each level of seriousness.  The Council has also identified a starting point within each category.

Starting points define the position within a category range from which to start calculating the provisional sentence. Starting points apply to all offences within the corresponding category and are applicable to all offenders, in all cases. Once the starting point is established, the court should consider further aggravating and mitigating factors and previous convictions so as to adjust the sentence within the range. Starting points and ranges apply to all offenders, whether they have pleaded guilty or been convicted after trial. Credit for a guilty plea is taken into consideration only at step four in the decision making process, after the appropriate sentence has been identified.

The structure of the guideline is specifically designed not as a rigid framework with mutually exclusive characterisations of behaviour, but rather as providing a range of identifying characteristics to assist the judge to place a particular offence within the range of such offences and thereby to facilitate consistency of approach to sentencing. 

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. 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.

All current guidelines are available on the Sentencing Council website at:

www.sentencingcouncil.org.uk

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 made publicly known before sentencing. This would be so, even when the new guideline had been made publicly known after the offence or conviction or guilty plea, and even if it had increased the "tariff" for the particular offence.

In R v Smythe & Osbourne, [2019] EWCA Crim 90 (25 January 2019) the defendants had been sentenced with reference to draft guidelines which had been cited in the sentencing note agreed by prosecution and defence advocates. The Court of Appeal held that the sentences were wrong in principle because they were imposed by reference to categorisation in guidelines that were not in force (and they were also manifestly excessive).

Magistrates' Court Sentencing Guidelines (MCSG)

The Magistrates' Court Sentencing Guidelines – Definitive Guideline (MCSG) is published online on the SC website. It is the most extensive guideline produced by the SC 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. 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. https://www.sentencingcouncil.org.uk/the-magistrates-court-sentencing-guidelines/

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 they say they have done so (R  v Fearon [1996] 2 Cr. App.R. (S) 25, CA). In 2017 the Sentencing Council published a definitive guideline for reduction in sentence for a guilty plea. 

Mandatory and Minimum Custodial Sentences

Mandatory Life Sentences

The only offence for which a "life sentence", as defined by section 277 Criminal Justice Act 2003, is "fixed by law" is murder. For more detailed guidance please refer to "Sentencing - Mandatory Life Sentences in Murder Cases".

Automatic Life Sentences

See Legal Guidance for Sentencing Dangerous Offenders.

Minimum Fixed Term Custodial Sentences

Drug Trafficking - Section 110 Power of Criminal Courts (Sentencing) Act 2000

The section requires that a Crown Court shall impose a sentence of at least 7 years for a third class A drug trafficking offence if the offender:

  • was 18 or over when they committed the offence;
  • committed the offence on or after 30 September 1997;
  • had previously been convicted of two other class A drug trafficking offences in the UK or “other member state"; and
  • one of those offences had been committed after conviction for the other.

The drug trafficking offence must be in respect of a Class A drug which has the same meaning as in the Misuse of Drugs Act 1971. "Drug trafficking offence" means any offence which is specified in paragraphs 1 and 10 of schedule 2 to the Proceeds of Crimes Act 2002. The most common offences are the production, supply and possession with intent to supply a controlled drug. The definition also includes conspiracy, attempt, and incitement to commit drug trafficking offences.

Domestic burglary - Section 111 Powers of Criminal Courts (Sentencing) Act 2000

The Crown Court shall impose a sentence of at least three years for a third domestic burglary if the offender:

  • was 18 or over when they committed the offence;
  • committed the offence after 30 November 1999;
  • had previously been convicted of two other domestic burglary offences in England and Wales or other parts of the UK or "any other member state";
  • one of those offences has been committed after conviction for the other; and
  • both of the previous domestic burglaries had been committed on or after 1 December 1999. 

Sections 9(1)(a) and (b) and 10 of the Theft Act 1968 apply for the purposes of section 111 of the Act.

Offences of conspiracy to burgle a dwelling house, incitement or an attempted burglary are not "burglary" for the purposes of section 111.

Reducing the minimum term under sections 110 and 111

The 15% reduction on custodial sentences over 12 months under the SC guideline does not apply to a sentence imposed under section 110. But the maximum reduction for the guilty plea will be 20% of the minimum term which would otherwise have been imposed for an offence where the offender falls to be sentenced under either section 110 or section 111 PCC(S)A, (s.144(2) Criminal Justice Act 2003).

The court has discretion not to impose the minimum custodial sentence of seven years if it is of the opinion that there are particular circumstances which relate to any of the offences, or to the offender which would make it "unjust" to do so in all the circumstances. The particular circumstances must be stated in open court.

Firearms - Section 51A Firearms Act 1968 (as inserted by section 287 Criminal Justice Act 2003

Section 287 of the Criminal Justice Act 2003 inserted a new section 51A into the Firearms Act 1968 that introduced a mandatory minimum sentence for the offence of possession, purchase, acquisition, manufacture, transfer or sale of certain prohibited weapons on or after 22 January 2004.

The section requires that a Crown Court shall impose a minimum sentence of:

  • 5 years imprisonment if the offender is aged 18 or over when convicted; or,
  • 3 years detention under s. 91 PCC(S)A 2000 (long term detention) if the offender was under 18 but over 16 when the offence was committed.

Section 51A does not allow for a reduction of the required minimum term on account of a guilty plea.

The court has discretion not to impose the minimum term, if of the opinion that there are "exceptional circumstances" relating to either of the offences, or to the offender which justifies it not doing so. The exceptional circumstances must be stated in open court. See Firearms Legal Guidance for more details about sentences.

Offensive Weapons, Knives and Blades

Minimum sentences for 'second strike' offences of possession of knives or offensive weapons came into force on 17 July 2015. Section 28 of and Schedule 5 to the Criminal Justice and Courts Act 1988 create a minimum custodial sentence for those aged 16 and over convicted of a second or subsequent offence of possession of a knife or offensive weapon (section 1 of the Prevention of Crime Act 1953) or of an article with a blade or sharp point (section 139 Criminal Justice Act 1988), including possession of such on school premises (section139A Criminal Justice Act 1988), See the Legal Guidance for Offensive  Weapons, Knives and Blades for more details.

CPS responsibilities

Sections 110 and 111 offences

These sections of the Act provide that an either way drug trafficking or domestic burglary offence, which could attract the minimum sentence of seven years or three years, shall be triable only on indictment.  The prosecutor should identify that an accused qualifies under the Act [e.g. has two qualifying convictions] and is before the court for a third offence. The prosecutor must take positive steps to advise the magistrates as soon as possible that the prosecution assert that an accused qualifies under the Act.

Section 51A Firearms Act 1968

The offences that attract the minimum mandatory sentence are triable only on indictment (Section 288 Criminal Justice Act 2003 also amends Schedule 6 to the Firearms Act 1968). They should therefore be sent to the Crown Court for trial.  16 and 17 year olds are subject to a mandatory minimum sentence of 3 years and so the case must be committed to Crown Court for trial. The youth court has no jurisdiction to try such cases (s.24 (1B) Magistrates' Courts Act 1980).

Challenges

Where the defence indicate that there is a challenge to a qualifying conviction under the Act, the court should be advised and the case adjourned.

If the dispute turns on whether a previous conviction qualifies (e.g. the accused claims a conviction was for a class B drug rather than a class A drug trafficking offence), it is the responsibility of the CPS to request the convicting court to supply a copy of the memorandum or certificate of conviction.

Where the accused disputes a qualifying conviction or asserts that for any other reason section 110 or 111 does not apply, the magistrates’ court must resolve the dispute to its own satisfaction and rule on the point.

Fifty-six Day "Slip Rule"

Under Section 155 Powers of Criminal Courts (Sentencing) Act 2000, the Crown Court has the power to vary or to rescind a sentence or other order imposed 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. R v Warren [2017] EWCA Crim 226; [2017] 2 Cr.App.R. (S.) 2, provides a summary of the current state of the law.

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.

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 caused false information to be given in mitigation. In that case, the offender was given a suspended sentence on the basis they were going to live in Italy where they had a job. Later a newspaper reported that they had boasted that the story about Italy had been concocted. It was held that had application been brought within the time limit, then a variation to impose an immediate custodial sentence would have been 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 their 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).

While there is no power to extend the time limit under s.155, and therefore no power to list the case within the 56-day limit and then to adjourn it, it is open to the court to reconsider and rescind the original decision within 56 days but to then adjourn the re-sentencing of the offender to a point in time outside the 56-day limit: Att.-Gen.’s Ref. (R. v. Nguyen) [2016] EWCA Crim 448; [2016] 2 Cr.App.R.(S.) 18.

Referral of Unduly Lenient Sentences

Areas should contact the Unduly Lenient Sentences Team of the Appeals and Review Unit (ARU) in the Special Crime and Counter Terrorism Division and the Attorney General's Office at an early stage to discuss and agree the approach.  For more information please see the Unduly Lenient Sentence legal guidance.

Time spent on remand

Section 67 Criminal Justice Act 1967 applies to offences committed before 4 April 2005 and Sections 240ZA241 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. Police detention does not fall within the ambit of a remand in custody under Section 242(2) of the 2003 Act.

Time spent in custody in connection with a fresh offence while the defendant is serving a sentence of imprisonment following their 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 s 254(6) of the 2003 Act, and therefore would not fall to be deducted from the sentence imposed for the fresh offence.

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 cannot 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 detained 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 (except 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 contained in Section 269(3)(b) of the Criminal Justice Act 2003.

There is a 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.

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 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, as these provisions came into effect on 4 April 2005, 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, they 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 they surrender or are arrested: Section 254(6).

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 their 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 have it available at 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 undesirable.

Breach of Curfew Orders

Whereas with most breaches the probation service can provide details 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 and so would not be in a position to make it available to the prosecuting advocate at court.

CPS Areas should negotiate their 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 ease of access to original files, the local listing arrangements and the likely levels of co-operation between the organisations involved.

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.

The SC introduced guidelines for breaches in 2018 which can be found under the individual offences at https://www.sentencingcouncil.org.uk/publications/item/breach-offences-definitive-guideline/