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Coroners and Justice Bill


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

62

 

104     

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—

5

(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

10

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—

(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

15

falls within the category, and

(b)   

specify the sentencing starting point in that range.

(5)   

The guidelines must—

(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

20

when considering the seriousness of the offence and any other

aggravating or mitigating factors which the Council considers are

relevant to such a consideration,

(b)   

list any other mitigating factors which the Council considers are

relevant in mitigation of sentence for the offence, and

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(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

particular significance in relation to the offence.

(6)   

For the purposes of subsection (5)(b) the following are to be disregarded—

30

(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

(assistance by defendants: reduction or review of sentence) and any

other rule of law by virtue of which an offender may receive a

35

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.

(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,

40

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.

(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

45

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

 
 

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

63

 

(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

5

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

10

different provision may be made in accordance with this section in relation to

different cases.

105     

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

15

(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

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

20

publish them as draft guidelines.

(4)   

The Council must consult the following persons about the draft guidelines—

(a)   

the Lord Chancellor;

(b)   

such persons as the Lord Chancellor may direct;

(c)   

the Justice Select Committee of the House of Commons (or, if there

25

ceases to be a committee of that name, such committee of the House of

Commons as the Lord Chancellor directs);

(d)   

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.

30

(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

35

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 111.

106     

Preparation or revision of guidelines in urgent cases

40

(1)   

This section applies where the Council—

(a)   

decides to prepare or revise sentencing guidelines or allocation

guidelines, and

 
 

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

64

 

(b)   

is of the opinion that the urgency of the case makes it impractical to

comply with the procedural requirements of section 103 or (as the case

may be) section 105.

(2)   

The Council may prepare or revise the guidelines without complying with—

(a)   

in the case of sentencing guidelines, section 103(5), and

5

(b)   

in the case of allocation guidelines, section 105(3).

(3)   

The Council may—

(a)   

in the case of sentencing guidelines, amend and issue the guidelines

under section 103(7) or (8) without having complied with the

requirements of section 103(6)(b) to (d), and

10

(b)   

in the case of allocation guidelines, amend and issue the guidelines

under section 105(5) without having complied with the requirements of

section 105(4)(b) to (d).

(4)   

The guidelines or revised guidelines must—

(a)   

state that the Council was of the opinion mentioned in subsection (1)(b),

15

and

(b)   

give the Council’s reasons for that opinion.

107     

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

20

section 103

(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

25

section 105.

(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”).

30

(3)   

The appeal court may propose to the Council that sentencing guidelines be

prepared or revised by the Council under section 103

(a)   

in relation to the relevant offence, or

(b)   

in relation to a category of offences within which the relevant offence

falls.

35

(4)   

A proposal under subsection (3) may be included in the appeal court’s

judgment in the appeal.

(5)   

If the Council receives a proposal under subsection (1) or (3) to prepare or

revise any guidelines, it must consider whether to do so.

(6)   

For the purposes of this section, the appeal court is seised of an appeal against

40

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

 
 

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

65

 

(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

5

section 36 of the Criminal Justice Act 1988 (c. 33) (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

108     

Sentencing guidelines: duty of court

10

(1)   

Every court—

(a)   

must, in sentencing an offender, follow any sentencing guidelines

which are relevant to the offender’s case, and

(b)   

must, in exercising any other function relating to the sentencing of

offenders, follow any sentencing guidelines which are relevant to the

15

exercise of the function,

   

unless the court is satisfied that it would be contrary to the interests of justice

to do so.

(2)   

Subsection (3) applies where—

(a)   

a court is deciding what sentence to impose on a person (“P”) who is

20

guilty of an offence, and

(b)   

sentencing guidelines have been issued in relation to that offence which

contain provision by virtue of section 104 (“the offence-specific

guidelines”).

(3)   

The duty imposed on a court by subsection (1)(a) to follow any sentencing

25

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

(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

30

that category of case.

(4)   

Subsection (3)(b) is subject to—

(a)   

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

35

(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

be given) by the offender to the prosecutor or investigator of an offence,

and

40

(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

imposing community sentences);

(b)   

section 152 of that Act (restrictions on imposing discretionary custodial

45

sentences);

 
 

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

66

 

(c)   

section 153 of that Act (custodial sentence must be for shortest term

commensurate with seriousness of offence);

(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);

5

(f)   

section 51A of the Firearms Act 1968 (c. 27) (minimum sentence for

certain offences under section 5 etc);

(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);

10

(h)   

section 29(4) and (6) of the Violent Crime Reduction Act 2006 (c. 38)

(minimum sentences for certain offences involving firearms).

(6)   

Nothing in this section or section 109 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

15

to be most appropriate in all the circumstances.

(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;

“sentencing guidelines” means definitive sentencing guidelines.

20

109     

Determination of tariffs etc

(1)   

Section 108(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);

25

(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.

30

(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 section 225(3C) or

35

226(3A) of 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

40

(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 108 apply for the purposes of determining the

notional determinate term in relation to an offence as they apply for the

45

purposes of determining the sentence for an offence.

 
 

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

67

 

(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

by law) or, as the case may be, an extended sentence of imprisonment or

5

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

110     

Resource implications of guidelines

10

(1)   

This section applies where the Council—

(a)   

publishes draft guidelines under section 103 or 105, or

(b)   

issues guidelines as definitive guidelines under either of those sections.

(2)   

The Council must publish a resource assessment in respect of the guidelines.

(3)   

A resource assessment in respect of any guidelines is an assessment by the

15

Council of the likely effect of the guidelines on—

(a)   

the demand for prison places,

(b)   

the resources required for probation provision, and

(c)   

the resources required for the provision of youth justice services.

(4)   

The resources assessment must be published—

20

(a)   

in a case within subsection (1)(a), at the time of publication of the draft

guidelines;

(b)   

in a case within subsection (1)(b), at the time the guidelines are issued

or, where the guidelines are issued by virtue of section 106, as soon as

reasonably practicable after the guidelines are issued.

25

(5)   

The Council must keep under review any resource assessment published

under this section, and, if the assessment is found to be inaccurate in a material

respect, publish a revised resource assessment.

111     

Monitoring

(1)   

The Council must—

30

(a)   

monitor the operation and effect of its sentencing guidelines, and

(b)   

consider what conclusions can be drawn from the information obtained

by virtue of paragraph (a).

(2)   

The Council must, in particular, discharge its duty under subsection (1)(a) with

a view to drawing conclusions about—

35

(a)   

the frequency with which, and extent to which, courts depart from

sentencing guidelines;

(b)   

the factors which influence the sentences imposed by courts;

(c)   

the effect of the guidelines on the promotion of consistency in

sentencing;

40

(d)   

the effect of the guidelines on the promotion of public confidence in the

criminal justice system.

 
 

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

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(3)   

When reporting on the exercise of its functions under this section in its annual

report for a financial year, the Council must include—

(a)   

a summary of the information obtained under subsection (1)(a), and

(b)   

a report of any conclusions drawn by the Council under subsection

(1)(b).

5

112     

Promoting awareness

(1)   

The Council must publish, at such intervals as it considers appropriate—

(a)   

in relation to each local justice area, information regarding the

sentencing practice of the magistrates’ courts acting in that area, and

(b)   

in relation to each location at which the Crown Court sits, information

10

regarding the sentencing practice of the Crown Court when it sits at

that location.

(2)   

The Council may promote awareness of matters relating to the sentencing of

offenders by courts in England and Wales, including, in particular—

(a)   

the sentences imposed by courts in England and Wales;

15

(b)   

the cost of different sentences and their relative effectiveness in

preventing re-offending;

(c)   

the operation and effect of guidelines under this Chapter.

(3)   

For the purposes of subsection (2), the Council may, in particular, publish any

information obtained or produced by it in connection with its functions under

20

section 111(1).

113     

Resources: effect of sentencing practice

(1)   

The annual report for a financial year must contain a sentencing factors report.

(2)   

A sentencing factors report is an assessment made by the Council, using the

information available to it, of the effect which any changes in the sentencing

25

practice of courts are having or are likely to have on each of the following—

(a)   

the demand for prison places;

(b)   

the resources required for probation provision;

(c)   

the resources required for the provision of youth justice services.

114     

Resources: effect of factors not related to sentencing

30

(1)   

The annual report for a financial year must contain a non-sentencing factors

report.

(2)   

The Council may, at any other time, provide the Lord Chancellor with a non-

sentencing factors report, and may publish that report.

(3)   

A non-sentencing factors report is a report by the Council of any significant

35

quantitative effect (or any significant change in quantitative effect) which non-

sentencing factors are having or are likely to have on the resources needed or

available for giving effect to sentences imposed by courts in England and

Wales.

(4)   

Non-sentencing factors are factors which do not relate to the sentencing

40

practice of the courts, and include—

(a)   

the recalling of persons to prison;

(b)   

breaches of orders within subsection (5);

 
 

 
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