There are a number of sentencing guidelines available for all either-way offences.
R v BARRICK [1985]. The Lord Chief Justice said that where there was a breach of trust in employee/employer situations sentences of imprisonment were inevitable, save in very exceptional circumstances or where the amount of money obtained is small.
The court went on to give certain indications as to the matters to which the court should give attention. For example, the court should have regard to:
(i) The quality and degree of trust reposed in the offender, including his rank.
(ii) The period over which the fraud or the thefts had been perpetrated.
(iii) The use to which the money or property dishonestly taken was put.
(iv) The effect upon the victim.
(v) The impact of the offences on the public and public confidence.
(vi) The effect on fellow employees or partners.
(vii) The effect on the offender himself.
(viii) His own history.
(ix) Those matters of mitigation special to himself such as illness, being placed under great strain by excessive responsibility or the like, or where, as sometimes happens, there has been a long delay, say over a period of two years, between his being confronted with dishonesty and the start of his trial.
The Lord Chief Justice also commented that if help was given to the police that also should be a mitigating feature.
There are a range of orders which the court may impose on an offender either additionally or instead of another punishment.
Under s43 POWERS OF THE CRIMINAL COURTS ACT 1973, where the offender is convicted of an offence punishable by more than two years’ imprisonment, it may order the FORFEITURE of any property in the control or possession of the offender at the time of arrest, if the property was used to commit or facilitate the commission of any offence or was intended for that use.
The Crown Court may also under s71 CRIMINAL JUSTICE ACT 1988, make a confiscation order in respect of the proceeds of the crime. Under the PROCEEDS OF CRIME ACT 1995, the court can order any sum to be confiscated where it is the benefit gained by the offender from the proceeds of the crime. The provision does not apply however to drug offences, where a similar provision is dealt with under THE DRUG TRAFFICKING OFFENCES ACT 1994.
A convicted offender may also be asked to pay the prosecution costs. Where a defendant is acquitted or discharged the court should normally make a defendant’s costs order unless the defendant’s own conduct brought suspicion upon himself and misled the prosecution into believing that their case was stronger than it actually was: PRACTICE DIRECTION: CRIME COSTS IN GENERAL PROCEEDINGS (NO. 2) [1999].
One of the most important features in recent times has been the emphasis of the need to consider COMPENSATION ORDERS. s35 POWERS OF CRIMINAL COURTS ACT 1973 states a court shall give reasons on passing sentence if it does not make a compensation order in a case where this section empowers it to do so. The Magistrates’ Association stresses that where it is appropriate to consider compensation. and a court considers that a fine is the most appropriate means of dealing with the offender, then compensation should be given preference, thereafter a fine, and then costs if they are relevant. Although the Criminal Injuries Compensation Board deals with a substantial number of cases of payments to victims of crime, the Magistrates’ Association also give certain guidelines. For example, if in an assault somebody suffers a black eye, then a guideline of £100 is suggested, and up to £75 is suggested for bruising.
When an advocate is making a plea in mitigation it may be that under the heading “capacity for reform” some optimistic claim is made (e.g. that the person will stay out of trouble for a certain time or is about to get married and take a job). In particular. offenders may claim that if allowed to keep their liberty they will pay compensation to the victims of the offence.
The court has a power under s1 POWERS OF CRIMINAL COURTS (SENTENCING) ACT 2000 to defer passing any sentence for a period of up to six months. The reason why a Court may defer sentence is to enable it to take into account the offender’s conduct after conviction, and any change in circumstances.
When a court defers sentence the offender is released until the date when he is instructed to re-appear, which should be fixed by the court there and then. In principle it should be the same judge or magistrates who deal with the case after sentence has been deferred, although this is not essential. When the offender does re-appear before the court he will be expected to explain what he has done in the meantime. In principle, if he has carried out his promise and not re-offended, he should be safe from a custodial sentence.
CUSTODIAL SENTENCES
For an adult, a custodial sentence means a sentence of imprisonment. For a sentence of imprisonment to be imposed, the court must be satisfied that the custody threshold in s152(2) CJA 2003 has been passed: The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence. The guidelines explain that the purpose of the threshold test is to reserve prison as a punishment for only the most serious offences and that even if the custody threshold is passed, that does not inevitably mean that a sentence of immediate imprisonment must follow.
The recommended approach is set out in the guidelines:
(1) Has the custody threshold been passed?
(2) If so, is it unavoidable that a custodial sentence be imposed?
(3) If so, can that sentence be suspended?
(4) If not, can the sentence be served intermittently?
(5) If not, impose a sentence that takes immediate effect for the term commensurate with the seriousness of the offence.
In assessing the seriousness of the offence the court will take into account:
the presence of aggravating and/or mitigating factors;
the extent of the defendant’s culpability in committing the offence;
any relevant Court of Appeal or SGC sentencing guidelines; or
the Magistrates’ Court Sentencing Guidelines (2004).
In determining whether the custody threshold has been met, the court may also refer to case law including the Court of Appeal’s important decision in HOWELLS [1999] which remains good law.
If, after having taken these factors into account, the court is of the opinion that the offence, or combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence, a custodial sentence will be passed.
When passing a custodial sentence, the court should explain why the offence is so serious that only custody is justified (s174(2)(b) CJA 2003). A PSR should normally be prepared before imposing custody (s156 CJA 2003).
Remember, in setting the tariff; the defendant will receive credit for pleading guilty (s144 CJA 2003). Also any time spent on remand in custody shall count as time served by the defendant as part of his sentence (s240 CJA 2003).
Where the defendant is sentenced to custody for a period of 12 months or more, ss237-268 CJA 2003 require the sentence to be served in full although half the sentence will be served on licence in the community. On the defendant’s release from custody the Probation Service may impose requirements on the defendant’s licence to prevent re-offending and/or to protect the public. A failure to comply with the requirements will result in the defendant being sent back to custody.
s271 permits the defendant to appeal to the Court of Appeal against the minimum term. The Attorney-General retains the power, under s36 CJA 1988, to appeal against an unduly lenient sentence.
Few defendants sentenced to imprisonment will serve the full term, although CJA 2003 has introduced the concept of extended sentences for dangerous offenders or where such a sentence is necessary for public protection.
Important changes were introduced to determinate custodial sentences of 12 months or longer by CJA 2003:
all offenders (other than those regarded as “dangerous”) are released automatically half-way through their sentence;
offenders remain on licence until the end of their sentence and may be recalled to serve the remainder of that sentence for the duration of the licence;
all prisoners may be considered for home detention curfew. This scheme allows certain prisoners to be released before their normal release date, living outside the prison for part of their sentence but subject to a residence requirement and curfew - normally 7.00 pm to 7.00 am. An electronic tag is fitted to the prisoner and monitoring equipment installed at the address by a private contractor. If the prisoner breaks the curfew, the electronic tag alerts the contractors and the prisoner can be recalled to prison until his automatic release date. There is now no distinction in terms of eligibility for home detention curfew between sentences under and over four years. A similar scheme had operated prior to CJA 2003 but this was limited to prisoners serving sentences under four years.
The court also has the power to suspend a sentence of imprisonment. Under s189 CJA 2003 a suspended sentence of imprisonment may be imposed where the custody threshold test is met and the accused is aged 18 or over and the court imposes a term of imprisonment of at least 28 weeks but not more than 51 weeks subject to the statutory, maximum for a magistrates’ court. The period of suspension can be between six months and two years. A suspended sentence of imprisonment is also known as “custody minus”.
The court can order the defendant to undertake requirements in the community during the supervision period and where he fails to comply with the requirements, or commits a further offence, the presumption will be that the suspended sentence will be activated.
“Custody plus” (s181 CJA 2003) has not yet been introduced. This new sentence will apply to offenders sentenced to less than 12 months’ imprisonment. Instead of serving the full term, offenders will serve a maximum of three months in prison, followed by a period of compulsory supervision. Effectively, the court imposes a community order to commence at the point when the prisoner is released from prison and during the currency of his licence period. The sentence is expected to prove particularly effective for offenders known to be drug or alcohol users. During the short period of incarceration, the offender would be “detoxed”. On release from prison he would be subject to strict supervision, support and treatment that might help to prevent his reoffending.
“Intermittent custody” is presently being piloted in some areas, but is not yet universally available. Once fully in force, sentences of between 28 weeks and 51 weeks may be served intermittently, with periods of release on licence before the full sentence is completed. The aim of the scheme is to allow sentences to be served at weekends, enhancing the offender’s prospects of maintaining or seeking employment, yet marking his offending with a loss of liberty. Either custody plus or intermittent custody will eventually have to be imposed for all sentences of less than 12 months’ imprisonment.
COMMUNITY ORDERS
The threshold test for community sentences is laid down in s148(1) CJA 2003: A court must not pass a community sentence on an offender unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was serious enough to warrant such a sentence. s151 CJA 2003 allows a community sentence to be passed on a person over the age of 16 even where the seriousness threshold is not passed, providing the defendant has committed at least three previous offences for which the sentence has been only a fine and where it is in the interests of justice to impose a community sentence.
The community order allows courts to impose a variety of requirements on offenders, including:
an unpaid work requirement under which the offender can be required to perform a specified number of hours’ work (40-300) over a 12-month period for the benefit of the community;
an activity requirement, which may involve an offender attending a particular place or meeting a particular person for the purpose of undertaking tasks or receiving help or providing reparation;
a programme requirement, which will focus upon the offending behaviour of the defendant and require involvement in anger management, sex offending or drug rehabilitation programmes;
a prohibited activity requirement, which will prevent an offender from doing some activity such as making contact with a particular person or from visiting a certain place;
a curfew requirement, which obliges the offender to remain at a specified place for between two and 12 hours each day for up to six months. This requirement may be supplemented by an electronic tag so that the offender’s movements can be effectively monitored;
a residence requirement;
a mental health treatment or drug rehabilitation requirement;
a supervision requirement;
an attendance centre requirement.
Breach of a community order will normally be dealt with by summary proceedings, except where the defendant was originally sentenced at Crown Court, in which event the case will normally be remitted to that court. The court may impose additional requirements, or may revoke the order and sentence the defendant for the original offence. Alternatively, the court may decide to fine the offender and/or leave the original order intact. Where a further offence is committed whilst serving a community order, this does not constitute a breach of that order.
FINES
Following the controversy regarding unit fines in the Magistrates’ Court, they were abolished by the CRIMINAL JUSTICE ACT 1993. Thus in the Magistrates’ Courts the maximum fine per offence varies according to its classification:
Level 1: £200
Level 2: £500
Level 3: £1,000
Level 4: £2,500
Either Way or Level 5: £5,000
In the Crown Court any fine is unlimited.
The maximum fine for an offender under 18 is £1,000, and for an offender under 14 it is £250.
DISCHARGES
Conditional or absolute discharges may be used in the case of relatively trivial offences. A court dealing with an offender which does not wish to punish him at all, for example because his offence was entirely technical, may give him an absolute discharge. It might be appropriate, for example, in the case of a driving offence of strict liability where there is no real moral blame on the defendant. For example, a defendant having just taken his car to a reputable garage to have it serviced, is driving away when the brakes fail. He would be guilty of the technical offence of driving a car with defective brakes for which no mens rea is required. However, in all the circumstances a court would not consider his offence in any way blameworthy and an absolute discharge would probably be imposed.
Conditional discharge is a little like a watered-down version of a suspended sentence in that if the offender does not re-offend during the period of the discharge the conditional discharge lapses. For example, an individual who is conditionally discharged for a year and commits no further offence is then free of any punishment in respect of the original offence. If, however, he does re-offend within the year then in principle he would be dealt with for the first offence.
This is also a convenient point to mention “binding over”. The offender may be bound over to keep the peace, a power which has its origins in the fourteenth century and is now contained in s115 MAGISTRATES’ COURTS ACT 1980. It will be appropriate to use the power where the offender has led the court to believe that a breach of the peace might arise from his future conduct. The offender will be hound over to keep the peace and be of good behaviour for a specified period. If the offender fails to keep his promise within the specified period the sum of money is forfeited.
ROAD TRAFFIC OFFENCES
Many road traffic offences carry endorsements, that is to say that a court must, on convicting the offender, endorse the number of points appropriate on the offender’s driving licence. It is open to a defendant to seek to argue that there are special reasons why this should not occur and that must be done in accordance with an established procedure whereby the defendant gives evidence. In WHITTAL v KIRBY [1947] the court said that a special reason means a mitigating circumstance not amounting in law to a defence to the charge, but directly connected with the commission of the offence and is one which the court ought properly to rake into account when imposing sentence. A defendant seeking to rely upon special reasons has the burden cast upon him although as is common the standard is only that upon the balance of probability. The appropriate number of penalty points is established by the ROAD TRAFFIC OFFENDERS ACT 1988. There is also procedure whereby if a defendant is convicted of an endorsable offence and his driving licence shows that with the points then to be endorsed on his licence he has more than 12 on his licence, then he becomes a “totter” under the provisions of the aforementioned Act. If he has no previous disqualification, then six months is the mandatory period. If, however, the defendant has one previous disqualification which is relevant then the period is extended to 12 months. If the defendant has more than one previous disqualification in the previous three years then an obligatory period of two years applies. It is, however, possible to seek, where somebody is a “totter”, mitigating circumstances. A mitigating circumstance is any circumstance which is not one which alleges that the offence is not serious, nor one which causes hardship unless the hardship is exceptional. Thus if a person comes before the court and has, for example, 14 points on his licence, if the loss of that licence is likely to lead to the loss of his employment and thus jeopardise his home and his family’s general position then it is open to the court to exercise its discretion and not impose the period of disqualification. It must be home in mind, however, that s35 ROAD TRAFFIC OFFENDERS ACT 1988 provides that a person is not entitled to use the same mitigating circumstances within a period of three years.
The court also has a power within its discretion to disqualify a person from driving if he appears before a court for any offence in respect of which an endorsement is obligatory. Thus it is open to a court to consider disqualifying a person who has pleaded guilty to careless or inconsiderate driving. Such an offence carries a variable point penalty of between three and nine and in a bad case a court could, in addition to imposing nine penalty points, order that somebody be disqualified from driving. In practice it is more likely to arise where somebody perpetrates a fairly dangerous piece of driving, and perhaps also pleads guilty to having no insurance. The court may then exercise its discretionary powers of disqualification. In addition to the court having discretionary powers to disqualify persons from driving there are also a number of offences, principally those relating to drinking and driving, which carry an obligatory disqualification. If a person drives or attempts to drive whilst unfit through drink or drugs or drives with excess alcohol or fails to provide a specimen for analysis on the Lion intoximeter then the court is obliged to impose a period of disqualification for a minimum period of 12 months. If a person has within the preceding ten years been convicted of one of those classes of offences, then on a second conviction the disqualification must be for a period of at least three years.
APPEALS
The Criminal Cases Review Commission, based on the recommendation of the Royal Commission on Criminal justice 1993, (the Runciman Committee) was established by s8 CRIMINAL APPEAL ACT 1995. The Commission, which is located in Birmingham, formally began its work on 31st March 1997 under the chairmanship of Sir Frederick Crawford. The Commission will formally investigate the 180 alleged miscarriages of justice inherited from the Home Office, and receives two to three new cases each working day. The new cases come from a number of sources. The Court of Appeal may, by s5, order it to investigate a case. A conviction on indictment may he referred to the Court of Appeal by the Commission, and this will then be treated as an appeal by the person convicted (S9). The Commission may at any time refer a Magistrates’ Court conviction or sentence to the Crown Court (s11); if the referral is about sentencing, it will be treated as an appeal under s108 Magistrates’ Court Act 1980. s13 provides that the Commission shall not refer any convictions unless it considers that there is a “real possibility” that they will not be upheld, and it so considers because an argument in relation to a conviction was not raised in the proceedings or in any appeal, or that a point of law was not raised in relation to a sentence. A referral in respect of a conviction (but not sentence) may however be made without the satisfaction of these criteria where the Commission considers that there are “exceptional circumstances”. The Commission has powers to obtain documents and direct officers to investigate and report (ss17-21), and non-disclosure of information to them may be an offence (ss23-25).
We will continue with this next week.
R v BARRICK [1985]. The Lord Chief Justice said that where there was a breach of trust in employee/employer situations sentences of imprisonment were inevitable, save in very exceptional circumstances or where the amount of money obtained is small.
The court went on to give certain indications as to the matters to which the court should give attention. For example, the court should have regard to:
(i) The quality and degree of trust reposed in the offender, including his rank.
(ii) The period over which the fraud or the thefts had been perpetrated.
(iii) The use to which the money or property dishonestly taken was put.
(iv) The effect upon the victim.
(v) The impact of the offences on the public and public confidence.
(vi) The effect on fellow employees or partners.
(vii) The effect on the offender himself.
(viii) His own history.
(ix) Those matters of mitigation special to himself such as illness, being placed under great strain by excessive responsibility or the like, or where, as sometimes happens, there has been a long delay, say over a period of two years, between his being confronted with dishonesty and the start of his trial.
The Lord Chief Justice also commented that if help was given to the police that also should be a mitigating feature.
There are a range of orders which the court may impose on an offender either additionally or instead of another punishment.
Under s43 POWERS OF THE CRIMINAL COURTS ACT 1973, where the offender is convicted of an offence punishable by more than two years’ imprisonment, it may order the FORFEITURE of any property in the control or possession of the offender at the time of arrest, if the property was used to commit or facilitate the commission of any offence or was intended for that use.
The Crown Court may also under s71 CRIMINAL JUSTICE ACT 1988, make a confiscation order in respect of the proceeds of the crime. Under the PROCEEDS OF CRIME ACT 1995, the court can order any sum to be confiscated where it is the benefit gained by the offender from the proceeds of the crime. The provision does not apply however to drug offences, where a similar provision is dealt with under THE DRUG TRAFFICKING OFFENCES ACT 1994.
A convicted offender may also be asked to pay the prosecution costs. Where a defendant is acquitted or discharged the court should normally make a defendant’s costs order unless the defendant’s own conduct brought suspicion upon himself and misled the prosecution into believing that their case was stronger than it actually was: PRACTICE DIRECTION: CRIME COSTS IN GENERAL PROCEEDINGS (NO. 2) [1999].
One of the most important features in recent times has been the emphasis of the need to consider COMPENSATION ORDERS. s35 POWERS OF CRIMINAL COURTS ACT 1973 states a court shall give reasons on passing sentence if it does not make a compensation order in a case where this section empowers it to do so. The Magistrates’ Association stresses that where it is appropriate to consider compensation. and a court considers that a fine is the most appropriate means of dealing with the offender, then compensation should be given preference, thereafter a fine, and then costs if they are relevant. Although the Criminal Injuries Compensation Board deals with a substantial number of cases of payments to victims of crime, the Magistrates’ Association also give certain guidelines. For example, if in an assault somebody suffers a black eye, then a guideline of £100 is suggested, and up to £75 is suggested for bruising.
When an advocate is making a plea in mitigation it may be that under the heading “capacity for reform” some optimistic claim is made (e.g. that the person will stay out of trouble for a certain time or is about to get married and take a job). In particular. offenders may claim that if allowed to keep their liberty they will pay compensation to the victims of the offence.
The court has a power under s1 POWERS OF CRIMINAL COURTS (SENTENCING) ACT 2000 to defer passing any sentence for a period of up to six months. The reason why a Court may defer sentence is to enable it to take into account the offender’s conduct after conviction, and any change in circumstances.
When a court defers sentence the offender is released until the date when he is instructed to re-appear, which should be fixed by the court there and then. In principle it should be the same judge or magistrates who deal with the case after sentence has been deferred, although this is not essential. When the offender does re-appear before the court he will be expected to explain what he has done in the meantime. In principle, if he has carried out his promise and not re-offended, he should be safe from a custodial sentence.
CUSTODIAL SENTENCES
For an adult, a custodial sentence means a sentence of imprisonment. For a sentence of imprisonment to be imposed, the court must be satisfied that the custody threshold in s152(2) CJA 2003 has been passed: The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence. The guidelines explain that the purpose of the threshold test is to reserve prison as a punishment for only the most serious offences and that even if the custody threshold is passed, that does not inevitably mean that a sentence of immediate imprisonment must follow.
The recommended approach is set out in the guidelines:
(1) Has the custody threshold been passed?
(2) If so, is it unavoidable that a custodial sentence be imposed?
(3) If so, can that sentence be suspended?
(4) If not, can the sentence be served intermittently?
(5) If not, impose a sentence that takes immediate effect for the term commensurate with the seriousness of the offence.
In assessing the seriousness of the offence the court will take into account:
the presence of aggravating and/or mitigating factors;
the extent of the defendant’s culpability in committing the offence;
any relevant Court of Appeal or SGC sentencing guidelines; or
the Magistrates’ Court Sentencing Guidelines (2004).
In determining whether the custody threshold has been met, the court may also refer to case law including the Court of Appeal’s important decision in HOWELLS [1999] which remains good law.
If, after having taken these factors into account, the court is of the opinion that the offence, or combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence, a custodial sentence will be passed.
When passing a custodial sentence, the court should explain why the offence is so serious that only custody is justified (s174(2)(b) CJA 2003). A PSR should normally be prepared before imposing custody (s156 CJA 2003).
Remember, in setting the tariff; the defendant will receive credit for pleading guilty (s144 CJA 2003). Also any time spent on remand in custody shall count as time served by the defendant as part of his sentence (s240 CJA 2003).
Where the defendant is sentenced to custody for a period of 12 months or more, ss237-268 CJA 2003 require the sentence to be served in full although half the sentence will be served on licence in the community. On the defendant’s release from custody the Probation Service may impose requirements on the defendant’s licence to prevent re-offending and/or to protect the public. A failure to comply with the requirements will result in the defendant being sent back to custody.
s271 permits the defendant to appeal to the Court of Appeal against the minimum term. The Attorney-General retains the power, under s36 CJA 1988, to appeal against an unduly lenient sentence.
Few defendants sentenced to imprisonment will serve the full term, although CJA 2003 has introduced the concept of extended sentences for dangerous offenders or where such a sentence is necessary for public protection.
Important changes were introduced to determinate custodial sentences of 12 months or longer by CJA 2003:
all offenders (other than those regarded as “dangerous”) are released automatically half-way through their sentence;
offenders remain on licence until the end of their sentence and may be recalled to serve the remainder of that sentence for the duration of the licence;
all prisoners may be considered for home detention curfew. This scheme allows certain prisoners to be released before their normal release date, living outside the prison for part of their sentence but subject to a residence requirement and curfew - normally 7.00 pm to 7.00 am. An electronic tag is fitted to the prisoner and monitoring equipment installed at the address by a private contractor. If the prisoner breaks the curfew, the electronic tag alerts the contractors and the prisoner can be recalled to prison until his automatic release date. There is now no distinction in terms of eligibility for home detention curfew between sentences under and over four years. A similar scheme had operated prior to CJA 2003 but this was limited to prisoners serving sentences under four years.
The court also has the power to suspend a sentence of imprisonment. Under s189 CJA 2003 a suspended sentence of imprisonment may be imposed where the custody threshold test is met and the accused is aged 18 or over and the court imposes a term of imprisonment of at least 28 weeks but not more than 51 weeks subject to the statutory, maximum for a magistrates’ court. The period of suspension can be between six months and two years. A suspended sentence of imprisonment is also known as “custody minus”.
The court can order the defendant to undertake requirements in the community during the supervision period and where he fails to comply with the requirements, or commits a further offence, the presumption will be that the suspended sentence will be activated.
“Custody plus” (s181 CJA 2003) has not yet been introduced. This new sentence will apply to offenders sentenced to less than 12 months’ imprisonment. Instead of serving the full term, offenders will serve a maximum of three months in prison, followed by a period of compulsory supervision. Effectively, the court imposes a community order to commence at the point when the prisoner is released from prison and during the currency of his licence period. The sentence is expected to prove particularly effective for offenders known to be drug or alcohol users. During the short period of incarceration, the offender would be “detoxed”. On release from prison he would be subject to strict supervision, support and treatment that might help to prevent his reoffending.
“Intermittent custody” is presently being piloted in some areas, but is not yet universally available. Once fully in force, sentences of between 28 weeks and 51 weeks may be served intermittently, with periods of release on licence before the full sentence is completed. The aim of the scheme is to allow sentences to be served at weekends, enhancing the offender’s prospects of maintaining or seeking employment, yet marking his offending with a loss of liberty. Either custody plus or intermittent custody will eventually have to be imposed for all sentences of less than 12 months’ imprisonment.
COMMUNITY ORDERS
The threshold test for community sentences is laid down in s148(1) CJA 2003: A court must not pass a community sentence on an offender unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was serious enough to warrant such a sentence. s151 CJA 2003 allows a community sentence to be passed on a person over the age of 16 even where the seriousness threshold is not passed, providing the defendant has committed at least three previous offences for which the sentence has been only a fine and where it is in the interests of justice to impose a community sentence.
The community order allows courts to impose a variety of requirements on offenders, including:
an unpaid work requirement under which the offender can be required to perform a specified number of hours’ work (40-300) over a 12-month period for the benefit of the community;
an activity requirement, which may involve an offender attending a particular place or meeting a particular person for the purpose of undertaking tasks or receiving help or providing reparation;
a programme requirement, which will focus upon the offending behaviour of the defendant and require involvement in anger management, sex offending or drug rehabilitation programmes;
a prohibited activity requirement, which will prevent an offender from doing some activity such as making contact with a particular person or from visiting a certain place;
a curfew requirement, which obliges the offender to remain at a specified place for between two and 12 hours each day for up to six months. This requirement may be supplemented by an electronic tag so that the offender’s movements can be effectively monitored;
a residence requirement;
a mental health treatment or drug rehabilitation requirement;
a supervision requirement;
an attendance centre requirement.
Breach of a community order will normally be dealt with by summary proceedings, except where the defendant was originally sentenced at Crown Court, in which event the case will normally be remitted to that court. The court may impose additional requirements, or may revoke the order and sentence the defendant for the original offence. Alternatively, the court may decide to fine the offender and/or leave the original order intact. Where a further offence is committed whilst serving a community order, this does not constitute a breach of that order.
FINES
Following the controversy regarding unit fines in the Magistrates’ Court, they were abolished by the CRIMINAL JUSTICE ACT 1993. Thus in the Magistrates’ Courts the maximum fine per offence varies according to its classification:
Level 1: £200
Level 2: £500
Level 3: £1,000
Level 4: £2,500
Either Way or Level 5: £5,000
In the Crown Court any fine is unlimited.
The maximum fine for an offender under 18 is £1,000, and for an offender under 14 it is £250.
DISCHARGES
Conditional or absolute discharges may be used in the case of relatively trivial offences. A court dealing with an offender which does not wish to punish him at all, for example because his offence was entirely technical, may give him an absolute discharge. It might be appropriate, for example, in the case of a driving offence of strict liability where there is no real moral blame on the defendant. For example, a defendant having just taken his car to a reputable garage to have it serviced, is driving away when the brakes fail. He would be guilty of the technical offence of driving a car with defective brakes for which no mens rea is required. However, in all the circumstances a court would not consider his offence in any way blameworthy and an absolute discharge would probably be imposed.
Conditional discharge is a little like a watered-down version of a suspended sentence in that if the offender does not re-offend during the period of the discharge the conditional discharge lapses. For example, an individual who is conditionally discharged for a year and commits no further offence is then free of any punishment in respect of the original offence. If, however, he does re-offend within the year then in principle he would be dealt with for the first offence.
This is also a convenient point to mention “binding over”. The offender may be bound over to keep the peace, a power which has its origins in the fourteenth century and is now contained in s115 MAGISTRATES’ COURTS ACT 1980. It will be appropriate to use the power where the offender has led the court to believe that a breach of the peace might arise from his future conduct. The offender will be hound over to keep the peace and be of good behaviour for a specified period. If the offender fails to keep his promise within the specified period the sum of money is forfeited.
ROAD TRAFFIC OFFENCES
Many road traffic offences carry endorsements, that is to say that a court must, on convicting the offender, endorse the number of points appropriate on the offender’s driving licence. It is open to a defendant to seek to argue that there are special reasons why this should not occur and that must be done in accordance with an established procedure whereby the defendant gives evidence. In WHITTAL v KIRBY [1947] the court said that a special reason means a mitigating circumstance not amounting in law to a defence to the charge, but directly connected with the commission of the offence and is one which the court ought properly to rake into account when imposing sentence. A defendant seeking to rely upon special reasons has the burden cast upon him although as is common the standard is only that upon the balance of probability. The appropriate number of penalty points is established by the ROAD TRAFFIC OFFENDERS ACT 1988. There is also procedure whereby if a defendant is convicted of an endorsable offence and his driving licence shows that with the points then to be endorsed on his licence he has more than 12 on his licence, then he becomes a “totter” under the provisions of the aforementioned Act. If he has no previous disqualification, then six months is the mandatory period. If, however, the defendant has one previous disqualification which is relevant then the period is extended to 12 months. If the defendant has more than one previous disqualification in the previous three years then an obligatory period of two years applies. It is, however, possible to seek, where somebody is a “totter”, mitigating circumstances. A mitigating circumstance is any circumstance which is not one which alleges that the offence is not serious, nor one which causes hardship unless the hardship is exceptional. Thus if a person comes before the court and has, for example, 14 points on his licence, if the loss of that licence is likely to lead to the loss of his employment and thus jeopardise his home and his family’s general position then it is open to the court to exercise its discretion and not impose the period of disqualification. It must be home in mind, however, that s35 ROAD TRAFFIC OFFENDERS ACT 1988 provides that a person is not entitled to use the same mitigating circumstances within a period of three years.
The court also has a power within its discretion to disqualify a person from driving if he appears before a court for any offence in respect of which an endorsement is obligatory. Thus it is open to a court to consider disqualifying a person who has pleaded guilty to careless or inconsiderate driving. Such an offence carries a variable point penalty of between three and nine and in a bad case a court could, in addition to imposing nine penalty points, order that somebody be disqualified from driving. In practice it is more likely to arise where somebody perpetrates a fairly dangerous piece of driving, and perhaps also pleads guilty to having no insurance. The court may then exercise its discretionary powers of disqualification. In addition to the court having discretionary powers to disqualify persons from driving there are also a number of offences, principally those relating to drinking and driving, which carry an obligatory disqualification. If a person drives or attempts to drive whilst unfit through drink or drugs or drives with excess alcohol or fails to provide a specimen for analysis on the Lion intoximeter then the court is obliged to impose a period of disqualification for a minimum period of 12 months. If a person has within the preceding ten years been convicted of one of those classes of offences, then on a second conviction the disqualification must be for a period of at least three years.
APPEALS
The Criminal Cases Review Commission, based on the recommendation of the Royal Commission on Criminal justice 1993, (the Runciman Committee) was established by s8 CRIMINAL APPEAL ACT 1995. The Commission, which is located in Birmingham, formally began its work on 31st March 1997 under the chairmanship of Sir Frederick Crawford. The Commission will formally investigate the 180 alleged miscarriages of justice inherited from the Home Office, and receives two to three new cases each working day. The new cases come from a number of sources. The Court of Appeal may, by s5, order it to investigate a case. A conviction on indictment may he referred to the Court of Appeal by the Commission, and this will then be treated as an appeal by the person convicted (S9). The Commission may at any time refer a Magistrates’ Court conviction or sentence to the Crown Court (s11); if the referral is about sentencing, it will be treated as an appeal under s108 Magistrates’ Court Act 1980. s13 provides that the Commission shall not refer any convictions unless it considers that there is a “real possibility” that they will not be upheld, and it so considers because an argument in relation to a conviction was not raised in the proceedings or in any appeal, or that a point of law was not raised in relation to a sentence. A referral in respect of a conviction (but not sentence) may however be made without the satisfaction of these criteria where the Commission considers that there are “exceptional circumstances”. The Commission has powers to obtain documents and direct officers to investigate and report (ss17-21), and non-disclosure of information to them may be an offence (ss23-25).
We will continue with this next week.
Labels: Thursday 24 March 2007
posted by John Robotham at 6:14 AM
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