House of Lords - Explanatory Note
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Chapter 1: General provisions about sentencing

Clause 135: Purposes of sentencing

408.     For the first time, the purposes of adult sentencing will be set out in statute. Subsection (1) sets out what these are: punishment, crime reduction, public protection the reform and rehabilitation of offenders, and reparation. There are exceptions where these purposes will not be applicable, specified in subsection (2). These exceptions are where an offender is under 18 (there are separate purposes for the aims of the youth justice system which can be found in the Crime and Disorder Act 1998), where the sentence is fixed by law (i.e. a mandatory life sentence imposed for murder), where offences require certain custodial sentences (clauses 216 to 219 and sections 110 and 111 of the Powers of Criminal Courts (Sentencing) Act 2000, and section 51A of the Firearms Act 1968, minimum sentence for firearms offences), and where various provisions under the Mental Health Act 1983 apply.

Clause 136: Determining the seriousness of an offence

409.     This clause sets out certain principles the court must follow when determining the seriousness of an offence. The court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused. Any previous convictions, where they are recent and relevant, should be regarded as an aggravating factor which should increase the severity of the sentence. A previous conviction is defined by subsection (4) to mean a previous conviction by a court in the United Kingdom or a finding of guilt in service disciplinary proceedings. The term "service disciplinary proceedings" is defined in clause 238(1). This is a strengthening of the existing principle in section 151(1) of the Powers of Criminal Courts (Sentencing) Act 2000. Subsection (3) re-enacts section 151(2) of that Act and provides that the fact that an offence was committed while the offender was on bail should also be regarded as an aggravating factor.

Clause 137: Reduction in sentence for guilty pleas

410.     This clause re-enacts section 152(1) and (3) of the Powers of Criminal Courts (Sentencing) Act and makes provision for the reduction of sentences for early guilty pleas, in order to encourage those defendants who are guilty not to take up valuable court time and trouble victims and witnesses unnecessarily. Subsection (1) requires the court to take into account exactly when in the course of proceedings the guilty plea was made and the circumstances in which it was given. For those sentences falling to be imposed under sections 110(2) or 111(2) of Powers of Criminal Courts (Sentencing) Act the court can reduce the sentence by up to 20 per cent.

Clause 138: Increase in sentence for racial or religious aggravation

411.     This clause re-enacts section 153 of the Powers of Criminal Courts (Sentencing) Act 2000 and provides that, except in the case of offences under sections 29 to 32 of the Crime and Disorder Act 1998, the court must treat the fact that the offence was religiously or racially aggravated as increasing the seriousness of the offence, and must state in open court it was so aggravated. The definition of racially or religiously aggravated can be found in section 28 of the 1998 Act.

Clause 139: Meaning of "community sentence" etc.

412.     This clause defines "community sentence" for the purposes of Part 12 of the Bill and also defines "youth community order" for the purposes of Chapter 1 of that Part.

Clause 140: Restrictions on imposing a community sentence

413.     Subsection (1) re-enacts section 35(1) of the Powers of Criminal Courts (Sentencing) Act. Subsection (2) re-enacts with a few minor changes section 35(3) of that Act. Subsection (3) sets out the same principles for youth community orders which remain in the Powers of Criminal Courts (Sentencing) Act. The clause makes provision as to when it is appropriate to impose a community sentence. If an offence is not serious enough for a community sentence, a fine, conditional discharge or absolute discharge would be appropriate. For a community sentence to be passed, an offence should be serious enough to warrant one. Further, the requirements which will form part of the (new) community sentence should be the most suitable ones for the offender and the restrictions on the liberty of the offender (such as a curfew requirement) must be in line with the seriousness of the offence. There is an exception, where an offence itself does not warrant a community sentence but where the offender has committed several similar offences in the past. This case is dealt with in clause 143.

Clause 141: Passing of community sentence on offender remanded in custody

414.     If an offender has been remanded in custody, and then receives a custodial sentence, his time on remand counts towards his sentence. This is covered in clause 220. This clause creates a new addition to the existing remand time provisions and enables the court to have regard to any time spent on remand when putting together the requirements of a community sentence, and deciding upon what restrictions on liberty ought to be imposed.

Clause 142: Community sentence not available where sentence fixed by law, etc.

415.     This clause re-enacts section 34 of the Powers of Criminal Courts (Sentencing) Act, but now refers to the new sentences for dangerous offenders. A community sentence is not available in respect of offences for which the sentence is fixed by law, or where sentences for dangerous offenders (in clauses 216 to 219) or under sections 110 and 111 of the Powers of Criminal Courts (Sentencing) Act, or under section 51A of the Firearms Act 1968 apply.

Clause 143: Community order for persistent offender previously fined

416.     This clause replaces existing provisions in section 59 of the Powers of Criminal Courts (Sentencing) Act. In addition to the general principle set out in clause 136 for dealing with persistent offenders, this clause provides the court with an additional discretionary power for dealing with persistent petty offenders. Where an offender aged 16 or over has been sentenced to a fine on at least three previous occasions, the court may impose a community sentence even if the current offence is one which would on its own warrant a fine. Subsection (3) directs the court to consider the nature of the previous offences, and how recent and relevant they are to the current offence. Subsection (6) provides that, for the purposes of determining whether the criteria are met, it does not matter whether the offender has on previous sentencing occasions received community or custodial sentences. Subsection (7) makes it clear that this clause does not interfere with the court's wider power to treat previous convictions as increasing the seriousness of the offence (specified in clause 136).

Clause 144: General restrictions on imposing discretionary custodial sentences

417.     As with community sentences, a court cannot impose a custodial sentence except where the offence, taken in combination with any past offences, merits it. This clause, which largely re-enacts section 79 of the Powers of Criminal Courts (Sentencing) Act, sets out this principle. Subsection (1) excludes from this consideration those offences which fall to be punished under the scheme for sentencing dangerous offenders (clauses 216 to 219) and those which fall to be sentenced under sections 110 and 111 of the Powers of Criminal Courts (Sentencing) Act and section 51A of the Firearms Act 1968. Subsection (2), which is based on section 79(2)(a) of the Powers of Criminal Courts (Sentencing) Act, states that a custodial sentence must only be imposed if the offence(s) is so serious that neither a fine nor a community sentence would be adequate punishment for it. Subsection (3) re-enacts section 79(3) of the Powers of Criminal Courts (Sentencing) Act. It provides that subsection (2) does not prevent a court from passing a custodial sentence on an offender who fails to consent to requirements imposed as part of a community sentence, where such consent is required) or if he refuses to comply with an order under clause 154(2) to provide samples for the purposes of drug testing.

Clause 145: Length of discretionary custodial sentences: general provision

418.     This clause re-enacts section 80 of the Powers of Criminal Courts (Sentencing) Act but modifies that provision to direct the court to impose the shortest term that is commensurate with the seriousness of the offence(s), subject to mandatory minimum sentences (in clauses 110 and 111 of the Powers of Criminal Courts (Sentencing) Act and 51A of the Firearms Act 1968) and the provisions of the extended sentence in clauses 218 and 219 Subsection (1) provides an exception to the rule for the case where the sentence is fixed by law (i.e. as a mandatory life sentence), and in the case of a discretionary life sentence or a new sentence of imprisonment or detention for public protection (clauses 216 and 217).

Clause 146: General limits on magistrates' court's power to impose imprisonment

419.     This clause re-enacts section 78 Powers of Criminal Courts (Sentencing) Act but with a significant amendment. This is an increase in magistrates' sentencing powers so as to enable them to impose custodial sentences of up to and including 12 months in respect of any one offence. These powers are, by virtue of subsection (4) without prejudice to any term of imprisonment which may be imposed for non-payment of a fine.

Clause 147: Consecutive terms of imprisonment

420.     This clause amends the Magistrates Courts Act 1980, adding to the powers in clause 147, by giving magistrates the power to impose a custodial term of 65 weeks in respect of two or more offences to be served consecutively.

Clause 148: Power to increase limits

421.     This clause enables the Secretary of State to increase the limits in clauses 146 and 147 by order. The increase would be up to 18 months custody in respect of any one offence, and 24 months custody in respect of two or more offences to be served consecutively. The order would be subject to affirmative resolution procedure (see clause 299(5)(a))

Clause 149: Pre-sentence reports and other requirements

422.     This clause re-enacts with amendments the existing provisions in sections 36 and 81 of the Powers of Criminal Courts (Sentencing) Act which cover pre-sentence reports for community and custodial sentences. When a court is considering whether to impose a discretionary custodial sentence and how long it should be, or whether to impose a community sentence and what restrictions to put on the offender's liberty as part of that sentence (clauses 140, 144 and 145) the court must take into account all the information available to it, including information about the offence and about the offender.

423.     Before imposing such a sentence, the Court must obtain a pre-sentence report. Pre-sentence reports are written in the case of adults by the probation service based on an interview and analysis of the offender and his offending history and needs. The PSR contains advice about what punishment might be appropriate and what rehabilitative work would be likely to prove effective with the offender in order to reduce the risk that he will re-offend.

424.     However, subsection (4) provides that the court need not obtain a pre-sentence report if it considers it unnecessary to do so in any individual case. Subsection (5) provides further protection for young offenders. For offenders under the age of 18, and where the offence is not triable only on indictment (that is, it is a summary only offence or one that is triable either summarily or on indictment), the court must not dispense with the requirement to obtain a pre-sentence report unless there already is one that relates to the offender and the court has access to it. Under subsection (6), no sentence is invalidated by the failure of a court to obtain and consider a pre-sentence report, even if a pre-sentence report is required under subsection (3).

425.     If the offender appeals against sentence, a pre-sentence report must be obtained and considered unless the appellate court believes the original court was justified in not obtaining a PSR or the current circumstances are such that a pre-sentence report is not necessary. The situation in relation to appeals is slightly different for offenders under 18 in that the court is not able to decide the original court was justified in not requiring a pre-sentence report or deciding that current circumstances are such that a pre-sentence report is not necessary, unless there is a previous pre-sentence report on the offender and the court has access to it (subsection (8)).

Clause 150: Additional requirements in case of mentally disordered offender

426.     This clause re-enacts section 82 of the Powers of Criminal Courts (Sentencing) Act. Special provision is made for mentally disordered offenders: qualified medical practitioners must be consulted before a custodial sentence is imposed (unless the sentence is one that is fixed by law). The court can also decide not to request a medical report if it considers it unnecessary in a particular case. The court must consider any information before it relating to the offender's mental condition and the likely effect of a custodial sentence on the offender and on any treatment which might be available to him. If the court does not obtain a medical report this does not invalidate any sentence passed, but on appeal the court must obtain and consider a medical report. Subsection (6) defines a medical report, which is different from a pre-sentence report, and subsection (7) says that provisions under this clause do not limit the provisions for pre-sentence reports in clause 149.

Clause 151: Meaning of "pre-sentence reports"

427.     This clause re-enacts section 162 of the Powers of Criminal Courts (Sentencing) Act and provides a definition for a pre-sentence report described in the preceding clauses. Such a report must be prepared by an "appropriate officer", defined in subsection (2) as an officer of the local probation board where the offender is over 18, or where the offender is under 18 a probation officer, social worker or member of a youth offending team.

Clause 152: Disclosure of pre-sentence reports

428.     This clause re-enacts section 156 of the Powers of Criminal Courts (Sentencing) Act with changes in respect of the disclosure of PSRs to juveniles. Where the court does obtain a written pre-sentence report, copies of it must be provided to those persons specified in this clause. Normally this should be the offender or his legal representative, the parent or guardian of an offender who is under 18, and the prosecutor. If however, the prosecutor is not of a description prescribed by the Secretary of State, the requirement to give the prosecutor a copy may be dispensed with if the court considers it inappropriate that he should receive one (subsection 4). Subsection 5 provides that the prosecutor is only able to use the information in the pre-sentence report either for determining whether to make representations to the court or for making representations to the court about the content of the report. Where the offender is under 18 and appears to the Court that the disclosure of a report to the offender or his parent or guardian would cause harm to the offender, the court is not obliged to give a copy to the offender or his parent or guardian if present in court (subsection (3)).

Clause 153: Other reports of local probation boards and members of youth offending teams

429.     This clause re-enacts section 157 of the Powers of Criminal Courts (Sentencing) Act. It applies where a report (other than a pre-sentence report) is made by a probation officer or a member of a youth offending team with a view to assisting the court in deciding how best to deal with a person in respect of an offence (subsection (1)). In general, a copy must be given to the offender or his legal representative (subsection (2). Where the offender is under 17 and is not legally represented, the court need not give him a copy of the report, but must give a copy to his parent or guardian if present (subsection (3)).

Clause 154: Pre-sentence drug testing

430.     Pre-sentence drug testing is available to assist the court when it is considering imposing a community sentence. This clause re-enacts, with some modifications, section 36A of the Powers of Criminal Courts (Sentencing) Act (which provides for the pre-sentence drug testing of persons aged 18 and over). It enables the court to make an order, in the case of convicted offenders who are at least 14 years old, to be tested for any specified class A drug. Where the offender is under the age of 17 years, provision must be made for an appropriate adult (as defined in subsection (8)) to be present when the sample is taken. Failure to provide a sample without a reasonable excuse is punishable by a fine. This power is only exercisable in the areas where the court has been notified by the Secretary of State that the power to make such orders is exercisable by the court.

Clause 155: Powers to order statement as to offender's financial circumstances

431.     This clause re-enacts section 126 of the Powers of Criminal Courts (Sentencing) Act. In some cases the court might wish to know the financial circumstances of the offender. The court can make a "financial circumstances order" in respect of an offender on conviction before sentencing him or if he pleads guilty without appearing before the court. The offender must report his financial circumstances to the court. If the offender fails to comply the court can impose a fine. If the offender falsifies or omits relevant information from a statement of his financial circumstances he commits an offence and is liable to imprisonment or a fine. Subsection (6) enables proceedings for such an offence to be begun within two years from the date of the offence or within 6 months from its discovery.

Clause 156: General power of the Crown Court to fine offender convicted on indictment

432.     This clause re-enacts section 127 of the Powers of Criminal Courts (Sentencing) Act. In general, the Crown Court can impose a fine on the offender either instead of, or in addition to, dealing with the offender in any other way. This clause does not apply in relation to an offence for which the sentence is fixed by law or which falls to be imposed under sections 110 and 111 of the Powers of Criminal Courts (Sentencing) Act or the provisions for dangerous offenders in clauses 216 to 219 of the Bill.

Clause 157: Fixing of fines

433.     This clause re-enacts section 128 of the Powers of Criminal Courts (Sentencing) Act with some modifications. The Court must inquire into the financial circumstances of an offender before fixing the amount of a fine on an offender (subsection (1)). When determining the amount of a fine, the court must take the financial circumstances of the offender, the seriousness of the offence and the circumstances of the case into account. In certain cases where the information is not available, such as where the offender has not furnished a statement of his financial circumstances, and the Court has been unable to assess the offender's financial circumstances, the court may go ahead and fix the amount it thinks appropriate (subsection (5)).

     Clause 158: Remission of fines

434.     This clause re-enacts section 129 of the Powers of Criminal Courts (Sentencing) Act. If an offender's financial circumstances are made clear to the court after it has fixed a fine, it can reduce the fine or withdraw it completely. If the offender is in prison for failing to pay the fine when such a decision is made, his term is to be reduced accordingly.

     Clause 159: Savings for powers to mitigate sentences and deal appropriately with mentally disordered offenders.

435.     This clause re-enacts and modifies section 158 of the Powers of Criminal Courts (Sentencing) Act and allows the court to take into account any relevant matters in mitigation of the sentence, irrespective of the obligations imposed by clause 140 in respect of community sentences, clauses 144, 145 and 150 in respect of custodial sentences, clause 149 in respect of pre-sentence reports and other requirements and clause 157 in respect of fines. None of the clauses mentioned in subsection (1) (should prevent the court from passing any sentence it considers appropriate (subsection (1)). Subsection (2) additionally makes clear that the Court can impose a community sentence, providing there are relevant mitigating factors, even where the offence(s) would normally have justified a custodial sentence. The court can reduce the sentence by considering other penalties given to the offender at the same time and where an offender is convicted of two or more offences by applying the totality principle, which is that the total punitive weight of the sentence must be commensurate with the offences committed (subsection (3)).

     Clause 160: The Sentencing Guidelines Council

436.     Subsection (1) provides for the membership of the Sentencing Guidelines Council, which exists to promulgate guidelines to enable all courts dealing with criminal cases to approach the sentencing of offenders from a common starting point. It stipulates that there will be 7 judicial members and 5 non-judicial members, and provides that the Lord Chief Justice is to be the Chairman of the Council.

437.      Subsection (2) sets out those persons eligible to be judicial members. Subsection (3) is designed to ensure that membership reflects those courts regularly dealing with criminal cases. The Lord Chief Justice is required to appoint a Deputy Chairman from amongst the Council members under subsection (7).

438.     Under subsection (4) the non-judicial members must have experience in one or more of the following fields: policing, criminal prosecution, criminal defence, the interests of victims, and sentencing and the management of sentences. Subsection (6) ensures that each area of experience is represented on the Council.

439.     Subsection (8) enables the Lord Chief Justice to nominate another judge to attend in his stead if he is unable to attend a Council meeting.

Clause 161: Sentencing Guidelines Council supplementary provisions

440.     This Clause enables the Lord Chancellor to deal with matters of appointment and removal of members, and Council proceedings by order. It also enables payment of remuneration and expenses to Council members. Lay justices can be remunerated for the time given to membership of the Council. All other judicial members will be salaried, full time members of the Judiciary and no further remuneration is necessary. However, provision is made for appropriate expenses to be reimbursed, as determined by the Lord Chancellor under subsection (4)(b). Similarly, by virtue of subsection (5) the Home Secretary may determine what payment by way of either remuneration or expenses is appropriate, for the non-judicial members.     Clause 162: The Sentencing Advisory Panel

441.     This clause provides for the continuation of the Sentencing Advisory Panel, constituted, as at present, by the Lord Chancellor after consultation with the Secretary of State and the Lord Chief Justice. Subsection (2) contains the requirement that the Lord Chancellor must appoint a Chairman of the Panel after consultation with the Home Secretary and the Lord Chief Justice. Subsection (3) re-enacts provision authorising the Lord Chancellor to remunerate members of the Panel or provide expenses.

     Clause 163: Guidelines relating to sentencing and allocation

442.     This clause sets out the responsibility to issue guidelines and matters to be taken into account in the process of creating them.

443.     Subsection (1) defines "guidelines" as meaning guidelines relating to the sentencing of offenders and guidelines as to the allocation of cases between courts.

444.     Subsection (2) allows the Secretary of State to ask the Council to frame or revise guidelines relating to allocation, a general matter affecting sentencing (for example, relating to the credit to be given for a guilty plea), to a particular category of offender (such as those with previous convictions), or relating to a particular offence. The Council itself can decide to frame guidelines, under subsection (3), and must consider whether to do so where it receives a proposal from the Sentencing Advisory Panel or the Secretary of State (as described above). Subsection (4) obliges the Council to keep its guidelines under review (where they have been formally issued) and revise them if appropriate.

445.     Subsection (5) sets out the factors to be taken into account by the Sentencing Guidelines Council when creating or revising sentencing Guidelines. The list (which reproduces the existing list in section 80(3) of the Crime and Disorder Act 1998) is not intended to be exhaustive.

446.     Subsection (6) sets out certain factors to be taken into account by the Sentencing Guidelines Council when creating or revising allocation guidelines. These are the importance of promoting consistency in decisions under section 19 of the Magistrates' Courts Act 1980 (which relates to determining mode of trial) and the views of the Sentencing Advisory Panel.

447.     Subsection (7) requires the Council to include in its guidelines criteria to determine the seriousness of the offence being dealt with. Those criteria need to include criteria for determining the significance of any previous convictions of the offender.

448.     Subsection (8) requires the Council to publish proposed guidelines in draft for consultation with the Secretary of State, any other person the Lord Chancellor after consultation with the Secretary of State directs and any other person the Council considers to be appropriate. It is anticipated that the second of these categories will include the House of Commons Home Affairs Select Committee. This consultation will follow that undertaken by the Sentencing Advisory Panel (see clause 164(3)) and will reflect the need to avoid duplication of effort.

449.     Subsection (9) provides for the Council, after making such amendments as it considers appropriate, to issue the guidelines as definitive guidelines.

     Clause 164: Functions of Sentencing Advisory Panel in relation to guidelines

450.     This clause makes provision for the functions of the Sentencing Advisory Panel. The Council is obliged to notify the Sentencing Advisory Panel when it decides to frame new guidelines or to revise existing guidelines. This will enable the Panel to prepare advice to assist the Council. However, under subsection (2) the Panel is also able to propose to the Council that guidelines are framed or revised by the Council.

451.     Subsection (3) provides that where guidelines are under consideration (either as a result of the Panel's own initiative or that of the Council), the Panel must consult with those that the Council stipulates. The Council will make that decision after consultation with the Secretary of State and Lord Chancellor. The panel must prepare advice where guidelines are proposed and submit it to the Council. Subsection (4) allows the Panel to dispense with the consultation required under subsection (3) if the urgency of a case makes this impractical.

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Prepared: 23 May 2003