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124 Use of documents to refresh memory | |
(1) A person giving oral evidence in criminal proceedings about any matter may, | |
at any stage in the course of doing so, refresh his memory of it from a document | |
made or verified by him at an earlier time if— | |
(a) he states in his oral evidence that the document records his recollection | 5 |
of the matter at that earlier time, and | |
(b) his recollection of the matter is likely to have been significantly better | |
at that time than it is at the time of his oral evidence. | |
(2) Where— | |
(a) a person giving oral evidence in criminal proceedings about any matter | 10 |
has previously given an oral account, of which a sound recording was | |
made, and he states in that evidence that the account represented his | |
recollection of the matter at that time, | |
(b) his recollection of the matter is likely to have been significantly better | |
at the time of the previous account than it is at the time of his oral | 15 |
evidence, and | |
(c) a transcript has been made of the sound recording, | |
he may, at any stage in the course of giving his evidence, refresh his memory | |
of the matter from that transcript. | |
125 Interpretation of Chapter 3 | 20 |
In this Chapter— | |
“criminal proceedings” means criminal proceedings in relation to which | |
the strict rules of evidence apply; | |
“defendant”, in relation to criminal proceedings, means a person charged | |
with an offence in those proceedings; | 25 |
“document” means anything in which information of any description is | |
recorded, but not including any recording of sounds or moving images; | |
“oral evidence” includes evidence which, by reason of a defect of speech | |
or hearing, a person called as a witness gives in writing or by signs; | |
“video recording” means any recording, on any medium, from which a | 30 |
moving image may by any means be produced, and includes the | |
accompanying sound-track. | |
126 Saving | |
No provision of this Part has effect in relation to criminal proceedings begun | |
before the commencement of that provision. | 35 |
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Part 12 | |
Sentencing | |
Chapter 1 | |
General provisions about sentencing | |
Matters to be taken into account in sentencing | 5 |
127 Purposes of sentencing | |
(1) Any court dealing with an offender in respect of his offence must have regard | |
to the following purposes of sentencing— | |
(a) the punishment of offenders, | |
(b) the reduction of crime (including its reduction by deterrence and its | 10 |
reduction by the reform and rehabilitation of offenders), | |
(c) the protection of the public, and | |
(d) the making of reparation by offenders to persons affected by their | |
offences. | |
(2) Subsection (1) does not apply— | 15 |
(a) in relation to an offender who is aged under 18 at the time of conviction, | |
(b) to an offence the sentence for which is fixed by law, | |
(c) to an offence the sentence for which falls to be imposed under | |
subsection (2) of section 110 or 111 of the Sentencing Act (required | |
custodial sentences) or under any of sections 207 to 210 of this Act | 20 |
(dangerous offenders), or | |
(d) in relation to the making under Part 3 of the Mental Health Act 1983 | |
(c. 20) of a hospital order (with or without a restriction order), an | |
interim hospital order, a hospital direction or a limitation direction. | |
(3) In this Chapter “sentence”, in relation to an offence, includes any order made | 25 |
by a court when dealing with the offender in respect of his offence; and | |
“sentencing” is to be construed accordingly. | |
128 Determining the seriousness of an offence | |
(1) In considering the seriousness of any offence, the court must consider the | |
offender’s culpability in committing the offence and the harm, or risk of harm, | 30 |
which the offence caused or was intended to cause. | |
(2) In considering the seriousness of an offence (“the current offence”) committed | |
by an offender who has one or more previous convictions, the court must treat | |
each previous conviction as an aggravating factor if (in the case of that | |
conviction) the court considers that it can reasonably be so treated having | 35 |
regard, in particular, to— | |
(a) the nature of the offence to which the conviction relates and its | |
relevance to the current offence, and | |
(b) the time that has elapsed since the conviction. | |
(3) In considering the seriousness of any offence committed while the offender | 40 |
was on bail, the court must treat the fact that it was committed in those | |
circumstances as an aggravating factor. | |
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(4) Any reference in subsection (2) to a previous conviction is to be read as a | |
reference to — | |
(a) a previous conviction by a court in the United Kingdom, or | |
(b) a previous finding of guilt in service disciplinary proceedings. | |
(5) A conviction in respect of which a probation order was made before 1st | 5 |
October 1992 (which by virtue of section 13 of the Powers of Criminal Courts | |
Act 1973 (c. 62) would otherwise not be a conviction for the purposes of this | |
section) is to be treated as a conviction for those purposes. | |
(6) A conviction in respect of which an order discharging the offender absolutely | |
or conditionally was made at any date (which by virtue of section 14 of the | 10 |
Sentencing Act would otherwise not be a conviction for the purposes of this | |
section) is to be treated as a conviction for those purposes. | |
(7) Subsections (2) and (4) do not prevent the court from treating a previous | |
conviction by a court outside the United Kingdom as an aggravating factor in | |
any case where the court considers it appropriate to do so. | 15 |
129 Reduction in sentences for guilty pleas | |
(1) In determining what sentence to pass on an offender who has pleaded guilty | |
to an offence in proceedings before that or another court, a court must take into | |
account— | |
(a) the stage in the proceedings for the offence at which the offender | 20 |
indicated his intention to plead guilty, and | |
(b) the circumstances in which this indication was given. | |
(2) In the case of an offence the sentence for which falls to be imposed under | |
subsection (2) of section 110 or 111 of the Sentencing Act, nothing in that | |
subsection prevents the court, after taking into account any matter referred to | 25 |
in subsection (1) of this section, from imposing any sentence which is not less | |
than 80 per cent of that specified in that subsection. | |
130 Increase in sentences for racial or religious aggravation | |
(1) This section applies where a court is considering the seriousness of an offence | |
other than one under sections 29 to 32 of the Crime and Disorder Act 1998 | 30 |
(c. 37) (racially or religiously aggravated assaults, criminal damage, public | |
order offences and harassment etc). | |
(2) If the offence was racially or religiously aggravated, the court— | |
(a) must treat that fact as an aggravating factor, and | |
(b) must state in open court that the offence was so aggravated. | 35 |
(3) Section 28 of the Crime and Disorder Act 1998 (meaning of “racially or | |
religiously aggravated”) applies for the purposes of this section as it applies for | |
the purposes of sections 29 to 32 of that Act. | |
General restrictions on community sentences | |
131 Meaning of “community sentence” etc. | 40 |
(1) In this Part “community sentence” means a sentence which consists of or | |
includes— | |
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(a) a community order (as defined by section 161), or | |
(b) one or more youth community orders. | |
(2) In this Chapter “youth community order” means— | |
(a) a curfew order as defined by section 163 of the Sentencing Act, | |
(b) an exclusion order under section 40A(1) of that Act, | 5 |
(c) an attendance centre order as defined by section 163 of that Act, | |
(d) a supervision order under section 63(1) of that Act, or | |
(e) an action plan order under section 69(1) of that Act. | |
132 Restrictions on imposing community sentences | |
(1) A court must not pass a community sentence on an offender unless it is of the | 10 |
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. | |
(2) Where a court passes a community sentence which consists of or includes a | |
community order— | |
(a) the particular requirement or requirements forming part of the | 15 |
community order must be such as, in the opinion of the court, is, or | |
taken together are, the most suitable for the offender, and | |
(b) the restrictions on liberty imposed by the order must be such as in the | |
opinion of the court are commensurate with the seriousness of the | |
offence, or the combination of the offence and one or more offences | 20 |
associated with it. | |
(3) Where a court passes a community sentence which consists of or includes one | |
or more youth community orders— | |
(a) the particular order or orders forming part of the sentence must be such | |
as, in the opinion of the court, is, or taken together are, the most suitable | 25 |
for the offender, and | |
(b) the restrictions on liberty imposed by the order or orders must be such | |
as in the opinion of the court are commensurate with the seriousness of | |
the offence, or the combination of the offence and one or more offences | |
associated with it. | 30 |
(4) Subsections (1) and (2)(b) have effect subject to section 135(2). | |
133 Passing of community sentence on offender remanded in custody | |
(1) In determining the restrictions on liberty to be imposed by a community order | |
or youth community order in respect of an offence, the court may have regard | |
to any period for which the offender has been remanded in custody in | 35 |
connection with the offence or any other offence the charge for which was | |
founded on the same facts or evidence. | |
(2) In subsection (1) “remanded in custody” has the meaning given by section | |
224(2). | |
134 Community sentence not available where sentence fixed by law etc. | 40 |
The power to make a community order or youth community order is not | |
exercisable in respect of an offence for which the sentence— | |
(a) is fixed by law, | |
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(b) falls to be imposed under section 110(2) or 111(2) of the Sentencing Act | |
(requirement to impose custodial sentences for certain repeated | |
offences committed by offenders aged 18 or over), or | |
(c) falls to be imposed under any of sections 207 to 210 of this Act | |
(requirement to impose custodial sentences for certain offences | 5 |
committed by offenders posing risk to public). | |
135 Community order for persistent offender previously fined | |
(1) Subsection (2) applies where— | |
(a) a person aged 16 or over is convicted of an offence (“the current | |
offence”), | 10 |
(b) on three or more previous occasions he has, on conviction by a court in | |
the United Kingdom of any offence committed by him after attaining | |
the age of 16, had passed on him a sentence consisting only of a fine, | |
and | |
(c) despite the effect of section 128(2), the court would not (apart from this | 15 |
section) regard the current offence, or the combination of the current | |
offence and one or more offences associated with it, as being serious | |
enough to warrant a community sentence. | |
(2) The court may make a community order in respect of the current offence | |
instead of imposing a fine if it considers that, having regard to all the | 20 |
circumstances including the matters mentioned in subsection (3), it would be | |
in the interests of justice to make such an order. | |
(3) The matters referred to in subsection (2) are— | |
(a) the nature of the offences to which the previous convictions mentioned | |
in subsection (1)(b) relate and their relevance to the current offence, and | 25 |
(b) the time that has elapsed since the offender’s conviction of each of those | |
offences. | |
(4) In subsection (1)(b), the reference to conviction by a court in the United | |
Kingdom includes a reference to the finding of guilt in service disciplinary | |
proceedings; and, in relation to any such finding of guilt, the reference to the | 30 |
sentence passed is a reference to the punishment awarded. | |
(5) For the purposes of subsection (1)(b), a compensation order does not form part | |
of an offender’s sentence. | |
(6) For the purposes of subsection (1)(b), it is immaterial whether on other | |
previous occasions a court has passed on the offender a sentence not consisting | 35 |
only of a fine. | |
(7) This section does not limit the extent to which a court may, in accordance with | |
section 128(2), treat any previous convictions of the offender as increasing the | |
seriousness of an offence. | |
General restrictions on discretionary custodial sentences | 40 |
136 General restrictions on imposing discretionary custodial sentences | |
(1) This section applies where a person is convicted of an offence punishable with | |
a custodial sentence other than one— | |
(a) fixed by law, or | |
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(b) falling to be imposed under 110(2) or 111(2) of the Sentencing Act or | |
under any of sections 207 to 210 of this Act. | |
(2) 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 | 5 |
be justified for the offence. | |
(3) Nothing in subsection (2) prevents the court from passing a custodial sentence | |
on the offender if— | |
(a) he fails to express his willingness to comply with a requirement which | |
is proposed by the court to be included in a community order and | 10 |
which requires an expression of such willingness, or | |
(b) he fails to comply with an order under section 146(2) (pre-sentence | |
drug testing). | |
137 Length of discretionary custodial sentences: general provision | |
(1) This section applies where a court passes a custodial sentence other than one | 15 |
fixed by law or falling to be imposed under section 207 or 208. | |
(2) Subject to sections 110(2) and 111(2) of the Sentencing Act and sections 209(2) | |
and 210(2) of this Act, the custodial sentence must be for the shortest term (not | |
exceeding the permitted maximum) that in the opinion of the court is | |
commensurate with the seriousness of the offence, or the combination of the | 20 |
offence and one or more offences associated with it. | |
General limit on magistrates’ court’s power to impose imprisonment | |
138 General limit on magistrates’ court’s power to impose imprisonment | |
(1) A magistrates’ court does not have power to impose imprisonment for more | |
than 12 months in respect of any one offence. | 25 |
(2) Unless expressly excluded, subsection (1) applies even if the offence in | |
question is one for which a person would otherwise be liable on summary | |
conviction to imprisonment for more than 12 months. | |
(3) Subsection (1) is without prejudice to section 133 of the Magistrates’ Courts Act | |
1980 (c. 43) (consecutive terms of imprisonment). | 30 |
(4) Any power of a magistrates’ court to impose a term of imprisonment for non- | |
payment of a fine, or for want of sufficient distress to satisfy a fine, is not | |
limited by virtue of subsection (1). | |
(5) In subsection (4) “fine” includes a pecuniary penalty but does not include a | |
pecuniary forfeiture or pecuniary compensation. | 35 |
(6) In this section “impose imprisonment” means pass a sentence of imprisonment | |
or fix a term of imprisonment for failure to pay any sum of money, or for want | |
of sufficient distress to satisfy any sum of money, or for failure to do or abstain | |
from doing anything required to be done or left undone. | |
(7) Section 132 of the Magistrates’ Courts Act 1980 contains provisions about the | 40 |
minimum term of imprisonment which may be imposed by a magistrates’ | |
court. | |
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