Coroners and Justice Bill

House of Commons

Session 2008 - 09
Internet Publications
Other Bills before Parliament

Coroners and Justice Bill

Coroners and Justice Bill
Part 4 — Sentencing
Chapter 1 — Sentencing Council for England and Wales
60

(6ZC)
The references in subsection (6ZB) to the time when a jury is
sworn include the time when that jury would be sworn but for
the making of an order under Part 7 of the Criminal Justice Act
2003.”, and
(d)
in paragraph 1 of Schedule 2 (consequential adaptations of
5
enactments)—
(i)
for “respectively references” substitute “reference”, and
(ii)
omit “and signing”.
(2)
In section 82 of the Supreme Court Act 1981 (c. 54) (duties of officers of Crown
Court), in subsection (1) omit “the signing of indictments,”.
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Part 4
Sentencing
Chapter 1
Sentencing Council for England and Wales
Sentencing Council for England and Wales
15
100
Sentencing Council for England and Wales
(1)
There is to be a Sentencing Council for England and Wales.
(2)
Schedule 13 makes provision about the Council.
101
Annual report
(1)
The Council must, as soon as practicable after the end of each financial year,
20
make to the Lord Chancellor a report on the exercise of the Council’s functions
during the year.
(2)
The Lord Chancellor must lay a copy of the report before Parliament.
(3)
The Council must publish the report once a copy has been so laid.
(4)
Sections 110(3), 112 and 113 make further provision about the content of
25
reports under this section.
(5)
If section 100 comes into force after the beginning of a financial year, the first
report may relate to a period beginning with the day on which that section
comes into force and ending with the end of the next financial year.
Guidelines
30
102
Sentencing guidelines
(1)
In this Chapter “sentencing guidelines” means guidelines relating to the
sentencing of offenders.
(2)
A sentencing guideline may be general in nature or limited to a particular
offence, particular category of offence or particular category of offender.
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(3)
The Council must prepare—

Coroners and Justice Bill
Part 4 — Sentencing
Chapter 1 — Sentencing Council for England and Wales
61

(a)
sentencing guidelines about the discharge of a court’s duty under
section 144 of the Criminal Justice Act 2003 (c. 44) (reduction in
sentences for guilty pleas), and
(b)
sentencing guidelines about the application of any rule of law as to the
totality of sentences.
5
(4)
The Council may prepare sentencing guidelines about any other matter.
(5)
Where the Council has prepared guidelines under subsection (3) or (4), it must
publish them as draft guidelines.
(6)
The Council must consult the following persons about the draft guidelines—
(a)
the Lord Chancellor;
10
(b)
such persons as the Lord Chancellor may direct;
(c)
such other persons as the Council considers appropriate.
(7)
In the case of guidelines within subsection (3), the Council must, after making
any amendments of the guidelines which it considers appropriate, issue them
as definitive guidelines.
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(8)
In any other case, the Council may, after making such amendments, issue them
as definitive guidelines.
(9)
The Council may, from time to time, review the sentencing guidelines issued
under this section, and may revise them.
(10)
Subsections (5), (6) and (8) apply to a revision of the guidelines as they apply
20
to their preparation (and subsection (8) applies even if the guidelines being
revised are within subsection (3)).
(11)
When exercising functions under this section, the Council must have regard to
the following matters—
(a)
the sentences imposed by courts in England and Wales for offences;
25
(b)
the need to promote consistency in sentencing;
(c)
the need to promote public confidence in the criminal justice system;
(d)
the cost of different sentences and their relative effectiveness in
preventing re-offending;
(e)
the results of the monitoring carried out under section 110.
30
103
Sentencing ranges
(1)
Sentencing guidelines relating to a particular offence must comply with the
requirements of this section.
(2)
The guidelines must describe, by reference to one or both of the following
factors, different categories of case involving the commission of the offence—
35
(a)
the offender’s culpability in committing the offence;
(b)
the harm caused, or intended to be caused or which might foreseeably
have been caused, by the offence.
(3)
The categories of case described under subsection (2) must, in the opinion of
the Council, illustrate (in so far as it is possible to do so by reference only to the
40
factors mentioned in that subsection) the varying degrees of seriousness with
which the offence may be committed.
(4)
The guidelines must, in relation to each category of case—

Coroners and Justice Bill
Part 4 — Sentencing
Chapter 1 — Sentencing Council for England and Wales
62

(a)
specify the range of sentences which in the opinion of the Council it
may be appropriate for a court to impose on an offender in a case which
falls within the category, and
(b)
specify the sentencing starting point in that range.
(5)
The guidelines must—
5
(a)
list any aggravating or mitigating factors which, by virtue of any
enactment or other rule of law, the court is required to take into account
when considering the seriousness of the offence and any other
aggravating or mitigating factors which the Council considers are
relevant to such a consideration,
10
(b)
list any other mitigating factors which the Council considers are
relevant in mitigation of sentence for the offence, and
(c)
include criteria, and provide guidance, for determining the weight to
be given to previous convictions of the offender and such of the other
factors within paragraph (a) or (b) as the Council considers to be of
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particular significance in relation to the offence.
(6)
For the purposes of subsection (5)(b) the following are to be disregarded—
(a)
the requirements of section 144 of the Criminal Justice Act 2003 (c. 44)
(reduction in sentences for guilty pleas);
(b)
sections 73 and 74 of the Serious Organised Crime and Police Act 2005
20
(assistance by defendants: reduction or review of sentence) and any
other rule of law by virtue of which an offender may receive a
discounted sentence in consequence of assistance given (or offered to
be given) by the offender to the prosecutor or investigator of an offence;
(c)
any rule of law as to the totality of sentences.
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(7)
The provision made under subsection (5)(c) must be framed in such manner as
the Council considers most appropriate for the purpose of assisting the court,
when sentencing an offender for the offence, to determine the appropriate
sentence within the range specified under subsection (4)(a) for the category of
case within which the offender’s case falls.
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(8)
The sentencing starting point in a range specified under subsection (4)(a) is the
sentence which the Council considers to be the appropriate sentence, in a case
which falls within the category of case to which the range relates—
(a)
before taking account of the factors listed in the guidelines under
subsection (5), and
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(b)
assuming the offender has pleaded not guilty.
(9)
Where provision is made in accordance with this section in relation to an
offence—
(a)
the provision made in respect of offenders who are aged 18 years or
over when convicted of the offence may differ from that made in
40
respect of offenders aged under 18 when so convicted;
(b)
if a different penalty is provided for the offence, by reference to when
the offence was committed or any other circumstances, different
provision may be made for those different cases.
(10)
The Lord Chancellor may, by order, prescribe other circumstances in which
45
different provision may be made in accordance with this section in relation to
different cases.

Coroners and Justice Bill
Part 4 — Sentencing
Chapter 1 — Sentencing Council for England and Wales
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104
Allocation guidelines
(1)
In this Chapter “allocation guidelines” means guidelines relating to decisions
by a magistrates’ court under section 19 of the Magistrates’ Courts Act 1980
(c. 43), or the Crown Court under paragraph 7(7) or 8(2)(d) of Schedule 3 to the
Crime and Disorder Act 1998 (c. 37), as to whether an offence is more suitable
5
for summary trial or trial on indictment.
(2)
The Council may prepare allocation guidelines.
(3)
Where the Council has prepared guidelines under subsection (2), it must
publish them as draft guidelines.
(4)
The Council must consult the following persons about the draft guidelines—
10
(a)
the Lord Chancellor;
(b)
such persons as the Lord Chancellor may direct;
(c)
such other persons as the Council considers appropriate.
(5)
The Council may, after making any amendment of the draft guidelines which
it considers appropriate, issue the guidelines as definitive guidelines.
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(6)
The Council may, from time to time, review the allocation guidelines issued
under this section, and may revise them.
(7)
Subsections (3) to (5) apply to a revision of the guidelines as they apply to their
preparation.
(8)
When exercising functions under this section, the Council must have regard
20
to—
(a)
the need to promote consistency in decisions of the kind mentioned in
subsection (1), and
(b)
the results of the monitoring carried out under section 110.
105
Preparation or revision of guidelines in urgent cases
25
(1)
This section applies where the Council—
(a)
decides to prepare or revise sentencing guidelines or allocation
guidelines, and
(b)
is of the opinion that the urgency of the case makes it impractical to
comply with the procedural requirements of section 102 or (as the case
30
may be) section 104.
(2)
The Council may prepare or revise the guidelines without complying with—
(a)
in the case of sentencing guidelines, section 102(5), and
(b)
in the case of allocation guidelines, section 104(3).
(3)
The Council may—
35
(a)
in the case of sentencing guidelines, amend and issue the guidelines
under section 102(7) or (8) without having complied with the
requirements of section 102(6)(b) or (c), and
(b)
in the case of allocation guidelines, amend and issue the guidelines
under section 104(5) without having complied with the requirements of
40
section 104(4)(b) or (c).
(4)
The guidelines or revised guidelines must—
(a)
state that the Council was of the opinion mentioned in subsection (1)(b),
and

Coroners and Justice Bill
Part 4 — Sentencing
Chapter 1 — Sentencing Council for England and Wales
64

(b)
give the Council’s reasons for that opinion.
106
Proposals by Lord Chancellor or Court of Appeal
(1)
The Lord Chancellor may propose to the Council—
(a)
that sentencing guidelines be prepared or revised by the Council under
section 102—
5
(i)
in relation to a particular offence, particular category of offence
or particular category of offenders, or
(ii)
in relation to a particular matter affecting sentencing;
(b)
that allocation guidelines be prepared or revised by the Council under
section 104.
10
(2)
Subsection (3) applies where the criminal division of the Court of Appeal (“the
appeal court”) is seised of an appeal against, or a reference under section 36 of
the Criminal Justice Act 1988 (c. 33) (reviews of sentencing) with respect to, the
sentence passed for an offence (“the relevant offence”).
(3)
The appeal court may propose to the Council that sentencing guidelines be
15
prepared or revised by the Council under section 102—
(a)
in relation to the relevant offence, or
(b)
in relation to a category of offences within which the relevant offence
falls.
(4)
A proposal under subsection (3) may be included in the appeal court’s
20
judgment in the appeal.
(5)
If the Council receives a proposal under subsection (1) or (3) to prepare or
revise any guidelines—
(a)
it must consider whether to do so, and
(b)
if it declines to do so, it must publish the reasons for this.
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(6)
For the purposes of this section, the appeal court is seised of an appeal against
a sentence if—
(a)
the Court or a single judge has granted leave to appeal against the
sentence under section 9 or 10 of the Criminal Appeal Act 1968 (c. 19)
(appeals against sentence), or
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(b)
in a case where the judge who passed the sentence granted a certificate
of fitness for appeal under section 9 or 10 of that Act, notice of appeal
has been given,

and the appeal has not been abandoned or disposed of.
(7)
For the purposes of this section, the appeal court is seised of a reference under
35
section 36 of the Criminal Justice Act 1988 (reviews of sentencing) if it has given
leave under subsection (1) of that section and the reference has not been
disposed of.
Duties of the court
107
Sentencing guidelines: duty of court
40
(1)
Every court—
(a)
must, in sentencing an offender, follow any sentencing guidelines
which are relevant to the offender’s case, and

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Part 4 — Sentencing
Chapter 1 — Sentencing Council for England and Wales
65

(b)
must, in exercising any other function relating to the sentencing of
offenders, follow any sentencing guidelines which are relevant to the
exercise of the function,

unless the court is satisfied that it would be contrary to the interests of justice
to do so.
5
(2)
Subsection (3) applies where—
(a)
a court is deciding what sentence to impose on a person (“P”) who is
guilty of an offence, and
(b)
sentencing guidelines have been issued in relation to that offence which
contain provision by virtue of section 103 (“the offence-specific
10
guidelines”).
(3)
The duty imposed on a court by subsection (1)(a) to follow any sentencing
guidelines which are relevant to the offender’s case includes a duty—
(a)
to decide which category of case described in the offence-specific
guidelines most resembles P’s case, and
15
(b)
to impose on P, in accordance with those guidelines, a sentence which
is within the range of sentences specified in the guidelines in relation to
that category of case.
(4)
Subsection (3)(b) is subject to—
(a)
section 144 of the Criminal Justice Act 2003 (c. 44) (reduction in
20
sentences for guilty pleas),
(b)
sections 73 and 74 of the Serious Organised Crime and Police Act 2005
(c. 15) (assistance by defendants: reduction or review of sentence) and
any other rule of law by virtue of which an offender may receive a
discounted sentence in consequence of assistance given (or offered to
25
be given) by the offender to the prosecutor or investigator of an offence,
and
(c)
any rule of law as to the totality of sentences.
(5)
The duty imposed by subsection (1) is subject to the following provisions—
(a)
section 148(1) and (2) of the Criminal Justice Act 2003 (restrictions on
30
imposing community sentences);
(b)
section 152 of that Act (restrictions on imposing discretionary custodial
sentences);
(c)
section 153 of that Act (custodial sentence must be for shortest term
commensurate with seriousness of offence);
35
(d)
section 164(2) of that Act (fine must reflect seriousness of offence);
(e)
section 269 of and Schedule 21 to that Act (determination of minimum
term in relation to mandatory life sentence);
(f)
section 51A of the Firearms Act 1968 (c. 27) (minimum sentence for
certain offences under section 5 etc);
40
(g)
sections 110(2) and 111(2) of the Powers of Criminal Courts
(Sentencing) Act 2000 (c. 6) (minimum sentences for certain drug
trafficking and burglary offences);
(h)
section 29(4) and (6) of the Violent Crime Reduction Act 2006 (c. 38)
(minimum sentences for certain offences involving firearms).
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(6)
Nothing in this section or section 108 is to be taken as restricting any power
(whether under the Mental Health Act 1983 (c. 20) or otherwise) which enables
a court to deal with a mentally disordered offender in the manner it considers
to be most appropriate in all the circumstances.

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Part 4 — Sentencing
Chapter 1 — Sentencing Council for England and Wales
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(7)
In this section—
“mentally disordered”, in relation to a person, means suffering from a
mental disorder within the meaning of the Mental Health Act 1983
(c. 20);
“sentencing guidelines” means definitive sentencing guidelines.
5
108
Determination of tariffs etc
(1)
Section 107(3) (except as applied by virtue of subsection (3) below) is subject to
any power a court has to impose—
(a)
a sentence of imprisonment for public protection by virtue of section
225(3) of the Criminal Justice Act 2003 (c. 44);
10
(b)
a sentence of detention for public protection by virtue of section 226(3)
of that Act;
(c)
an extended sentence of imprisonment by virtue of section 227 of that
Act;
(d)
an extended sentence of detention by virtue of section 228 of that Act.
15
(2)
Subsection (3) applies where a court determines the notional determinate term
for the purpose of determining in any case—
(a)
the order to be made under section 82A of the Powers of Criminal
Courts (Sentencing) Act 2000 (life sentence: determination of tariffs),
(b)
the notional minimum term for the purposes of 225(3C) or 226(3A) of
20
the Criminal Justice Act 2003 (imprisonment or detention for public
protection for serious offences),
(c)
the appropriate custodial term for the purposes of section 227(3) of that
Act (extended sentence for certain violent or sexual offences: persons 18
or over), or
25
(d)
the appropriate term for the purposes of section 228(3) of that Act
(extended sentence for certain violent or sexual offences: persons under
18).
(3)
Subsections (2) to (4) of section 107 apply for the purposes of determining the
notional determinate term in relation to an offence as they apply for the
30
purposes of determining the sentence for an offence.
(4)
In this section references to the notional determinate term are to the
determinate sentence that would have been passed in the case if the need to
protect the public and the potential danger of the offender had not required the
court to impose a life sentence (in circumstances where the sentence is not fixed
35
by law) or, as the case may be, an extended sentence of imprisonment or
detention.
(5)
In subsection (4) “life sentence” has the same meaning as in Chapter 2 of Part 2
of the Crime (Sentences) Act 1997 (c. 43).
Other functions of the Council
40
109
Resource implications of guidelines
(1)
This section applies where the Council—
(a)
publishes draft guidelines under section 102 or 104, or
(b)
issues guidelines as definitive guidelines under either of those sections.