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Legal Framework of Sentencing

This article explores the changes in sentencing practices in England and Wales, discussing the increase in the prison population and the legislative framework that governs sentencing. It examines the controls and limits on sentencing discretion, including maximum and minimum sentences, mandatory sentences, and the role of guidance and appeals. The principles of sentencing, such as last resort and proportionality, are also discussed. The article concludes with a review of the sentencing guidelines and the proposal for a sentencing commission.

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Legal Framework of Sentencing

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  1. Legal Framework of Sentencing Professor Michael Cavadino

  2. Sentencing Have judges got softer on criminals?

  3. England and Wales Prison Population 1993 44,566 Jan 2013 83,837 (88% increase)

  4. SENTENCES FOR INDICTABLE OFFENCES (incl. ‘either way’) Crown Court: 1993 - 49% custodial 2008 - 57% custodial

  5. SENTENCES FOR INDICTABLE OFFENCES (incl. ‘either way’) Magistrates’ court: 1993 - 6% custodial 2008 - 13.5% custodial

  6. Carter Report 2003 Patrick Carter, Managing Offenders, Reducing Crime

  7. Kenneth Clarke (Lord Chancellor and Justice Secretary 2010-12) June 2010: “Why is the prison population twice what it was when I was Home Secretary [1993]?”

  8. English Criminal Courts (Sentencing) Legal Aid, Sentencing and Punishment of Offenders Act 2012

  9. Sentencing Legislative Framework of Sentencing

  10. English Criminal Courts (Sentencing) COURT OF APPEAL CROWN COURT MAGISTRATES’ COURT

  11. English Criminal Courts SUPREME COURT COURT OF APPEAL(Criminal Division) QBD DIVISIONAL COURT CROWN COURT MAGISTRATES’ COURT

  12. English Criminal Courts (Sentencing) MAGISTRATES’ COURT: (Lay) Magistrates District Judges (Magistrates’ Courts) (“stipendiaries”)

  13. English Criminal Courts (Sentencing) MAGISTRATES’ COURT: Summary and ‘triable either way’ offences Max. 6 months imprisonment/ £5,000 fine

  14. English Criminal Courts (Sentencing) CROWN COURT: High Court judges Circuit judges Recorders

  15. English Criminal Courts (Sentencing) CROWN COURT: Indictable and ‘triable either way’ offences Max. life imprisonment/ unlimited fine

  16. Sentencing ‘Doctrine of judicial independence’

  17. Separation of powers Executive - government Legislature - Parliament Judiciary - judges

  18. Criminal Justice Act 2003, s. 142: Purposes of Sentencing a)Punishment b) Reduction of crime (including deterrence) c) Reform d) Protection of public e) Reparation

  19. CONTROLS AND LIMITS ON SENTENCING DISCRETION ‘Confinement’ of discretion by rules

  20. CONFINEMENT OF SENTENCING DISCRETION • Maximum sentences • Mandatory and minimum sentences

  21. CONFINEMENT OF SENTENCING DISCRETION ‘Semi-mandatory sentences’

  22. ‘THREE STRIKES AND YOU’RE OUT’ Powers of Criminal Courts (Sentencing) Act 2000, s. 110: Minimum 7 years for 3rd Class A drug trafficking offence

  23. ‘THREE STRIKES AND YOU’RE OUT’ Powers of Criminal Courts (Sentencing) Act 2000, s. 111: Minimum 3 years for 3rd domestic burglary

  24. MANDATORY AND MINIMUM SENTENCES Criminal Justice Act 2003, s. 287: Minimum 5 years for unlawful possession of firearm

  25. MANDATORY AND MINIMUM SENTENCES Legal Aid, Sentencing and Punishment of Offenders Act 2012, s.142: Minimum 6 months for threatening with weapon

  26. MANDATORY AND MINIMUM SENTENCES Legal Aid, Sentencing and Punishment of Offenders Act 2012, s.122: Mandatory ‘two strikes’ life imprisonment

  27. CONFINEMENT OF SENTENCING DISCRETION A presumption against short prison sentences?

  28. CONTROLS AND LIMITS ON SENTENCING DISCRETION ‘Checking’ of discretion by appeals

  29. CONTROLS AND LIMITS ON SENTENCING DISCRETION ‘Structuring’ of discretion by guidance

  30. CONTROLS AND LIMITS ON SENTENCING DISCRETION Principles of Sentencing

  31. SENTENCING PRINCIPLES Principle of Last Resort

  32. SENTENCING PRINCIPLES Principle of Last Resort - Criminal Justice Act 2003, s. 152(2): custody only if neither fine nor community order can be justified

  33. SENTENCING PRINCIPLES Principle of Proportionality

  34. SENTENCING PRINCIPLES Principle of Proportionality – Criminal Justice Act 2003, s. 153(2): prison term to be the ‘shortest. . . commensurate with the seriousness of the offence’

  35. CONTROLS AND LIMITS ON SENTENCING DISCRETION ‘Structuring’ of discretion by guidance: SENTENCING GUIDELINES

  36. MINNESOTA SENTENCING “GRID” (extract)

  37. Court of Appeal GUIDELINE JUDGMENTS • R v Billam (1986) 3 Cr App R (S) 48 (CA) • Rape committed by a single adult - ‘starting point’ 5 years • Rape by two or more men - starting point 8 years • Offender likely to be a continuing danger - life

  38. Sentencing Guidelines Crime and Disorder Act 1998: • extended role of CA in making guidelines (s. 80) • established Sentencing Advisory Panel (s. 81)

  39. Sentencing Guidelines John Halliday Making Punishments Work (2001) (Review of the Sentencing Framework)

  40. Sentencing Guidelines Criminal Justice Act 2003 (ss. 167-173): • Sentencing Guidelines Council to produce comprehensive guidelines • Sentencing Advisory Panel remained to advise SGC

  41. Sentencing Guidelines Sentencing Guidelines Council chaired by Lord Chief Justice 11 members (7 judges) Advised by Sentencing Advisory Panel

  42. A SENTENCING COMMISSION? CARTER REPORT (2007) Securing the Future:: Proposals for the Efficient and Sustainable Use of Custody in England and Wales

  43. SENTENCING COMMISSION WORKING GROUP REPORT (‘Gage Report’, July 2008) Sentencing Guidelines in England and Wales: An Evolutionary Approach

  44. SENTENCING COMMISSION WORKING GROUP REPORT • No sentencing ‘grid’ • No Sentencing ‘Commission’ • ‘Enhanced’ Council (combining SGC & SAP) • No duty to have regard to prison resources

  45. CORONERS AND JUSTICE ACT 2009 Sentencing Council replaces SGC and SAP (April 2010)

  46. CORONERS AND JUSTICE ACT 2009 Sentencing Council replaces SGC and SAP (April 2010) 14 members, 8 judges chaired by Lord Justice Leveson

  47. Sentencing Council must ‘have regard to’: • sentences imposed by courts; • need to promote consistency in sentencing; • impact of sentencing on victims; • need to promote public confidence; • cost and effectiveness of different sentences.

  48. CORONERS AND JUSTICE ACT 2009 ‘Tramline sentencing’? Guidelines to provide starting points and sentence ranges for different levels of seriousness

  49. CORONERS AND JUSTICE ACT 2009 ‘Tramline sentencing’? Courts required to follow guidelines unless ‘contrary to the interests of justice’ (s. 125)

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