BPTC Criminal Litigation , Evidence & Sentencing

result in them going to prison, but a conviction after trial would . A judge should
... .~ -
....o;.~.,:-->- - therefore soy, for example, 'If you change your plea to guilty now, I would
'C \ ...a.~ sentence you to no more than three years' imprisonment'.
·C:. ._p~~-
.~ b-~=>.:~ (c) The indication is binding for a reasonable period of time. It is open for a judge to
c.. c~ . . .
'"\ . ~c' soy precisely how long that reasonable period of time would be.

~:~~~ (d) During the reasonable period of time, the indication is binding on the judge who
mode it and any other judge unless Parliament changes the maximum sentence
L··.e-'--"'~
..(_....-~.!-QOI!.?.- for on offence or the Sentencing Guidelines for the offence ore changed .
Y~ 6_..........., If the judge chooses not to give on indication they should soy why they hove elected not
\/ to and ind icate if they would be willing to give an indication at a later stage in the
~
b '~\~
....
~= proceedings.

~ 7 On hearing on advance indication of sentence, the defendant con either:

\..O."V\ ~ (a) Enter a guilty plea and be sentenced to no more than the indication; or
\.....Q.Ve-G\...o.,..,._ (b) Reject the indication and continue to trial.
'--o\- ~~ "'=..
<:::.._

~-~'"'~-When will the defendant be sentenced?

A defendant charged with a single offence

8 Where a defendant is charged with a single offence, they will either be sentenced
immediately after they plead guilty or a guilty verdict is returned by the magistrates or
jury. Alternatively, the court con adjourn the case for any of the following reasons:
(a) The court has insufficient time to deal with sentence immediately.
(b) The court requires further information in order to sentence the defendant.
(c) The court orders that a pre-sentence report be prepared by the Probation Service.
(d) One or both of the parties wishes to place further information before the court
prior to sentence and the court consents to an adjournment.

The starling point is that the court expects the parties to be able to deal with sentence
immediately following a guilty plea or verdict. Any application to adjourn or for a pre-
sentence report will not be automatically granted and is entirely at the discretion of the
court. With pre-sentence reports in particular, the court will want a justification as to
why time and resources should be used to prepare such a report. It expects Counsel to
be able to deal with any matters upon which they can properly toke instructions such as
the defendant's personal background . Reports are therefore usually constrained to
circumstances in which the court needs specific information from the Probation Service
such as the suitability for a particular form of sentence that involves their services, or the
assessment of dangerousness.

If the Magistrates' Court decides to adjourn sentence then they ore bound by statute as
to how long on adjournment may be. For a defendant on boil it's four weeks; where the
defendant is in custody, it' s three weeks. Note, however, there is nothing to prevent the
court from adjourning sentence more than once. --=-, """'~~ · 2l~·.,_;. .\c... ~ ,, _ .•
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:jefendant charged with multiple offences .- "b~c:..

If a defendant is charged with multiple offences and pleads guilty to some but not all
god there is to he a trial an the ~emgiRder, the court must decide whether to sentence on
the matters to which they have pleaded guilty immediately or whether to adjourn those
matters to the conclusion of the trial. It is usual to adjourn sentence until the conclu~ion

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 Sentencing p...,..;;,;,..,;

hat happens at a sentencing hearing?

The diagram below sets out the four steps that compri se a sentencing hearing.

On what basis is the

defendant being
sentenced?

Prosecution open
facts/make
submissions/
applications

Defence mitigate

Judge passes
sentence

Step 1 : On what basis is the defendant being

sentenced?
::0 This depends on whether the defendant has pleaded guilty or has been found guilty
after a trial. There are therefore three possible answers to this question:
(a) The defendant pleaded not guilty and had a trial. At the conclusion of the trial the
magistrates or jury returned a verdict of guilty.
(b) The defendant entered a guilty plea and does not seek to dispute the facts of the
offence as set out by the prosecution.
(c) The defendant entered a guilty plea but does not accept the facts as set out by
the prosecution and seeks to challenge them whilst accepting that they are guilty
of the offence as charged.

The defendant pleaded not guilty and had a trial; at the

conclusion of the trial the magistrates or jury returned
a verdict of guilty
~I At the conclusion of the trial the court will either pass sentence immediately or adjourn if
there is reason to do so such as needing reports.

The .defendant entered a guilty plea and does not seek

to dispute the facts of the offence as set out by the
prosecution
2 The court will either sentence the defendant immediately or adjourn if there is reason to
do so, such as needing reports.

1<:1
 on to consider the next question: would it make a material difference to sentence if
defendant was sentenced on the basis of one kick and one punch rather than two of
both? Each case is fact specific but, given that the defendant accepts one of each, the
difference in sentence for the second punch and kick is likely to be minimal if anything
atoll.
54 The judge is therefore likely to conclude that the difference would not be material to
sentence. The defendant would therefore be sentenced on his account of one kick and
one punch .

Example 3 - Punch yes, but no kicks

55 The defendant decides to plead guilty on a basis that reads as follows:
I accept that I am guilty of assault. I don't accept the prosecution facts . I punched the
complainant twice in the face . I did not kick him as alleged or at all.
56 Again, the basis is not absurd . There is, however, likely to be a material difference to 'L: ......,. ~ ~­
sentence. Kicking a person whilst they are prone on the ground is a hugely aggravating -==? • ~~~~ ~
factor when considering the appropriate sentence for assault. ~.:- ~ · ~_,_=---=--
57 A judge is likely to order a Newlon hearing to decide the issue. If the prosecution can ..:::...."-:>----·~ ,.._-,<::>. ~
prove beyond reasonable doubt that the defendant kicked the complainant twice whilst ~-o.,.....,_~
he was on the ground then the court will sentence on that basis and the defendant ~c..~\o _.
would lose some of his credit for pleading guilty. If on the other hand the prosecution
are unable to meet that standard, the defendant would be sentenced on the basis of the
two punches alone.

:i Step 2: Prosecution open facts, make

'·
submissions/ applications
58 If the case has been adjourned, the prosecutor w ill ask the court if they would like to be
reminded of the facts of the case. In the Crown Court it is usual that the judge who
heard the trial sentences the defendant so it isn't usually necessary to remind the court.
In the Magistrates' Court however, it is more likely that following an adjournment, unless
the magistrates have specifically adjourned the case to a date on which they can all be
present, the bench will be constituted differently and therefore some or all will need to
be told the facts of the case .

59 Irrespective of whether the facts have been opened to the court or not, the prosecutor
should assist the court with :

(a) A list and details of the defendant's previous convictions if they think it
appropriate to bring them to the court's aHention

(b) Any ancillary orders that the prosecution seeks (e.g . costs, compensation) '----.n-
~ """---~-' ~
~--=-~~ <b~,c::
(c) Any relevant sentencing guidelines or statutory provisions r~ ..... ::lo ~ ~ o

(d) Any general sentencing issues to ensure that the sentence passed is lawful
~ 6--~ --.::;,·
60 Note, the prosecution don't ask the court to pass a specific sentence, nor do they
'
....d,. recommend a sp~cific sentence; that is entirely within the province of the court.

Victim impact statements

61 The prosecution will, where appropriate, set out the content of a victim impact statement
~ <~~~ ·
b~:lo. ..s...:J..o- --~
where one has been created. A prosecutor must do so with care, ensuring that what is
put before the court is fair given that the defence are not really in a position to
challenge or investigate it.

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 BPTC Criminal litigation, Evidence & Se!Ve<rOI:r.:

Step 3: Defence mitig

The defence are permitted to (and ion on behalf of
the defendant. It's also at this
Sometimes, the defence asks for a pa~!Cis:a::~
facts . "
~~ Q-~"(. ~ ,....,__,""""' c._t._ Cl~ be..~<-
;: Pre-sentence report
6.--~-.:c:.. 63 Section 156 of the Criminal Justice must obtain a pre-
...,,.......:~-.-~.A sentence report before passing a c nless it considers it
unnecessary to do so. That's a pr _ s, a court can only
come to the decision that it's un ~ eody a pre-sentence
o further report is

64 can often take some persuasion lo ge- -

_ necessary. I a report IS commissio
the Probation Service can meet the dE>~Ei:ld=-·

r..; A defendant may choose to put a medi

Where, however, the court is con sideJ"-
Act (MHA) 1983 then it must have evidence • _:;o...o........,
practitioners, at least one
of whom must be registered under lhe efendant suffers from a
mental disorder within the meaning of ' lhe court is considering
imposing a custodial sentence on a PeJ"SOfl c SOC"der, they must not do so
without seeing a report from one medica pn:Jd:l::iozs-
~~~\"'=:><:.-

~, ~~~Character evidence
·.,_--~. .:.;;. -
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66 The defendant may wish to rely on c nx:~er _ - _ e way of either written
testimonials or live evidence. Written evidence:-- ::>: - --on with the agreement of
?-• ~ r..it <~..u-<~ the prosecution . Alternatively, a witness co oe - - >e usual way and be cross-
~cl vo.~~·" examine dby the prosecution i f I hey so w ish.

~_ ~:~ Mitigation and general duties

~ f·""'-"L\.~ov.........,67 As with the prosecutor, the defence are unde c gener du to ensure that a lawful
~ sentence is passed.
t...'--"-
5;.!::!.. 68 When advancing mitigation, Defence Counsel enSUfe I what they put forward is
consistent with their instruction and, their dUf)l er ~ Bar Handbook (e.g . not
mislead) and be ready for a court to want e idence of assertions that are made in
mitigation. . ....._ G--=., ~\. . ,_..,
..........
~ ,...._....,.\~~ +"--.. ~-'d-'o
.....c -~
c: -'--'-·'-"" ~ · ~"'-'~
Step 4: Judge passes sentence '-\<::>.....-- ·,.-<:::>~~...,.

When a judge passes sentence, they must only sentence the defendant for the offence .
that they have pleaded or been found guilty of, save for two notable exceptions; sample
counts and offences taken into consideration.

Sample counts
70 , Where a defendant is alleged to have committed numerous offences over a long
period, rather than charging him with every single alleged instance, the prosecution can
 decide instead to charge him with 'sample counts' to represent the course of offending . ~ '-cx:.ce~::.l
If the defendant pleads guilty or is found guilty, they will be sentenced to reAect that .._,.
overall period of offending . If this is the case, the prosecution must explain to the judge 0..: _
what the overall period is said to be. ~'- -
aken in consideration
-1 Where a suspect is arrested and admits carrying out on offence, the police may invite
the suspect to admit further offences that could be 'taken into consideration' when he
goes to court. An example of where this commonly occurs is burglary where a suspect is
invited to 'clear his conscience' (and police crime statistics!) by making admissions as to
further burglaries. At court he will be invited to sign a list of offences taken into account.
The benefit to the defendant is that he is bound to face a lower sentence than if each of 6.;.,::,- 0 ,,"t-J.......
these offences had been included on the charge sheet or indictment. ~~..,_......,...
--~ ( . o , c:.:
s~ntencing guidelines
-2 The Sentencing Council (http://sentencingcouncil.judiciary.gov.uk/) are responsible for
publishing definitive sentencing guidelines for criminal offences. Whilst there aren't yet
guidelines for every single offence known at law, the overwhelming majority of those
regularly charged ore covered by a guideline.
-3 The court must follow the sentencing guidelines when passing sentence for an offence.
They are guidelines and not tramlines so they do afford the court some flexibility in
determining what the sentence will be.
-4 For the purposes of the Criminal litigation assessment you will not be required to
memorise the content of the guidelines. Instead you are expected to know how they
work. You will gain some experience of using them during the Advocacy and
Conference modules.
The first step for the court is to assess which category a defendant's conduct falls into:
(a) Greater culpability and greater harm
(b) Greater culpability and lesser harm, or greater harm and lesser culpability
(c) lesser culpability and lesser harm

The court does this by reference to the general factors on culpability and harm as well
as those particular to the offence. The parties will usually be invited to make submissions
as to which category a defendant falls into. Once the court has decided on the
category, this will give them a category range within which the defendant's sentence
should fall and a starting point within that range.
~
Next, the court goes on to consider the aggravating and mitigating factors particular to ~ Z
the offender. Again, there are general aggravating and mitigating factors but each _
guideline also sets out those particular to that offence. ' I..\7...U"'- ~-...._:~ 0~
~~ ·. ~ \ 0 . ~ ~ '-"-<""'-- ,,~
-::. ~~~ ~~~~~
e five purposes of sentencing o.:~ ~e.~
..... ,....., ~~-.::!'"~ , __ ~ . '"') ~
-:~ When sentencing a defendant the court must bear in mind the five purposes of ~~~
sentencing set out in s 142(1) of the Criminal Justice Act 2003.
'(a) the punishment of offenders
(b) the reduction of crime {including its reduction by deterrence}
{c) the reform and rehabilitation of offenders
(d) the protection of the public
(e) the making of reparation by offenders to persons affected by their offence'
The purposes are given equal weight though in a particular case some may be more
important than others; _ _ r ;"X:.'JG..,..,
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157
 BPTC Criminal litigation , Evidence & Sentencing

Seriousness and thresholds

80 The court must then go on to consider e with reference to
s 143( 1) of the CJA 2003:
'In considering the seriousness of on · er the offender's
culpability in committing the offence
intended to cause or might foreseea bly
81 The words culpability and harm are in''f'll!':lt"ti~ ~ec::c::se
direct reference to them . For most ·21:~&-~
appropriate range of sentences based
(a) Greater culpability and greater •
(b) Greater culpability and lesser esser culpability

... (c) lesser culpability and lesser ham

82 The court must also bear in mind the : 52 of the Criminal
Justice Act 2003 slates:
'The court must not pass a custodial sen · ion that the offence,
or the combination of the offence one/ ::::ssociated with it, was so
serious that neither o fine alone nor a rn=':=l:',;..,' liS:::ie:IC!!' be iustified for the
offence. '
83 Similarly, with community sentences, es:
'A court must not pass a community <Pit...,.._.. less it is of the opinion
that the offence, or the combination of e offences associated
with it, was serious enough to warron

Common aggravating and mrt"1·~pJ~tmg ors and

prevalence
84 The following molters are considereo ling Factors for any
offence.

Aggravating factors
85 Common aggravating factors:

(a) Offence committed whilst on boil for

(b) Failure to respond to previous se
(c) Offence was racially or religiously
(d) Offence motivated by, or de 10 victim based on his
sexual orientation (or presumed
(e) Offence motivated by, or de • OOsed on the victim's disability
(or presumed disability}
(ij Previous conviction(s}, particularly of repeal offending is
disclosed

(g) Planning of an offence

(h) An intention to commit more serious resulted from the offence
(i} Offenders operating in groups or go s

!il 'Professional' offending - "--<.. ·~~~.,.

158
 (k) Commission of the offence for financial gain (where this is not inherent in the
offence itsel~
(I) High level of profit from the offence

(m) An attempt to conceal or dispose of evidence

(n) Failure to respond to warnings or concerns expressed by others about the
offender's behaviour
(o) Offence committed whilst on licence

(p) Offence motivated by hostility towards a minority group, or a member or

members of it

(q) Deliberate targeting of vulnerable victim(s)

(r) Commission of an offence while under the influence of alcohol or drugs
(s) Use of a weapon to frighten or injure victim
(t) Deliberate and gratuitous violence or damage to property, over and above what
is needed to carry out the offence
(u) Abuse of power
(v) Abuse of a position of trust
(w) Multiple victims
(x) An especially serious physical or psychological effect on the victim, even if
unintended
(y) A sustained assault or repeated assaults on the same victim
(z) Victim is particularly vulnerable
(a a) location of the offence (for example, in an isolated place)

::ny (bb) Offence is committed against those working in the public sector or providing a
service to the public

(cc) Presence of others e.g . relatives, especially children or partner of the victim
(dd) Additional degradation of the victim (e.g . taking photographs of a victim as part
of a sexual offence)
(ee) In property offences, high value (including sentimental value) of property to the
victim, or substantial consequential loss (e.g . where the theft of equipment causes
serious disruption to a victim's life or business)

Mitigating factors
86 Common mitigating factors:
(a) A greater degree of provocation than normally expected
(b) Mental illness or disability
(c) Youth or age, where it affects the responsibility of the individual defendant
(d) The fact that the offender played only a minor role in the offence
(e) Any personal mitigation

:>angerousness
87 Where a defendant has been convicted of a 'specified' offence, the court must consider
the issue of dangerousness. A specified offence is one which appears in Schedule 15 of \0
the Criminal Justice Act 2003 . A serious specified offence is one that is specified and ~"'-
-the maximum senteR~e i' aitha~ life or g determinate sentence of ten years or more. \
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