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BPTC Law Notes BPTC Criminal Litigation Notes

Sentences In Mags And Crown Court Notes

Updated Sentences In Mags And Crown Court Notes

BPTC Criminal Litigation Notes

BPTC Criminal Litigation

Approximately 1169 pages

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Sentences in the magistrates and Crown Courts

Sentences available to m’ court and Crown Court

Type of Sentence Magistrates’ Court Crown Court
Bind Over Yes Yes
Absolute discharge Yes Yes
Conditional discharge Yes Yes
Fine Yes (subject to any statutory maximum) Yes (subject to any statutory maximum)
Community Order Yes Yes
A suspended prison sentence Yes (though the suspended custodial term is subject to the same maximums below)
A determinate custodial sentence Yes, subject to a max of 6 months, or two 6-month sentences to run consecutively where charged with 2+ either-way offences Yes (limited only by statutory maximum for an offence)
Mandatory minimum sentence for a third domestic burglary No Yes
Mandatory life sentence for murder No Yes

  • Where a D is committed from m’ court to Crown Court, the power of Crown Court on sentence (i.e. whether it is limited to m’ court maximum) depends on which section (s3, 4 or 6) they were committed under.

  • Ancillary orders and costs orders (when sentencing) (all available in both m’ court and Crown Court except Confiscation orders:

    • Prosecution costs order

    • Compensation orders

    • Forfeiture and depravation orders

    • Sexual offences notification

    • Confiscation orders pursuant to Proceeds of Crime Act 2002 (Crown Court only, though default is managed by the m’ court).

Bind Over

Who has the power to impose it? M’ Court and Crown Court (and Court of Appeal)
A special case not JUST a sentence

  • Remember, sentence (this ch) is the phase occurring only after a person has pleaded guilty/been found guilty.

  • However, a bind over can be imposed on someone instead of them entering a guilty plea or being tried for an offence.

  • Can even be imposed following an acquittal or on a witness in a case.

  • So bind over can be imposed: either on complaint or on court’s own motion; at any time before conclusion of crim proceedings; on withdrawal of the case by the prosecution; on a decision by the prosecution to offer no evidence’ on an adjournment; or upon acquittal.

  • So ‘bind over’ is a sentencing option; but can also be imposed where D has not been convicted, as a measure of preventive justice

A bind over can be imposed on, inter alia:

  • An acquitted Defendant;

  • A defendant where prosecution has been unable to proceed

  • A witness before the court

But CANNOT bind over:

  • The victim of an assault who is not a party to the proceedings and has not been called to give evidence;

  • A person who is the subject of a witness order, but who is in the event not required to give evidence.
What is it

  • A person can be bound over by a court to ‘keep the peace’ for a sum of money that they forfeit if they fail to do so.

  • The person bound over is required to enter into a recognizance in an amount specified by the court, which will be forfeited if he fails to keep the peace for a specified period. [[or can can find sureties instead of his own recognizance]]

  • In appropriate cases, a bind over can also include the condition not to possess, use or carry a firearm.
When can it be imposed

It’s not just a sentence, so it can be imposed:

  1. Instead of trying a Defendant. Prosecution can agree not to proceed to trial where the court indicates it will bind a D over instead. Most commonly used in minor cases of assault or public order offences.

  2. As a sentence, following a plea of guilty or a verdict of guilty (authorities are unclear whether a bind over can be a standalone sentence or whether it must be imposed with another sentence; but it seems that courts do impose it as a standalone sentence).

  3. Where a D is acquitted, but court considers that a person may breach the peace in the future.

  4. On a witness in the proceedings where court considers that a person may breach the peace in the future.

A binding order refraining the individual from specified types of conduct/activities, must specify the details of that conduct in a written order, served on all relevant parties. & court should state its reasons.

Court must be satisfied that it is ‘SURE’ that: a breach of the peace involving violence, or an imminent threat of violence has occurred; or there is a real risk of violence in the future.

  • Such violence might be perpetrated by the person to be bound over; OR by a third party as a natural consequence of that person’s conduct.
How is this sentence passed in court? “Mr Smith, the prosecution has decided not to pursue the charge under s5 Public Order Act against you. Instead, we are binding you over in the sum of 100 to keep the peace for 1 year. If you fail to keep the peace for the next 1 year, you will have to pay this court 100. At the end of the year, if you have kept the peace, you pay nothing”.
Consequences of breach If D breaches the peace they are liable to pay the monetary sum they were bound over for.

Absolute & conditional discharges

  • Power to grant, s12 PCC(S)A: court can grant absolute or conditional discharge, if court is of opinion (regarding nature of offence & character of offender) that it is inexpedient to inflict punishment

  • Cannot combining discharge orders with other sentences

    • A discharge CANNOT be combined with a punitive measure (custody, community order, fine) for the same offence except where permitted by statute (so cannot be combined with a custodial sentence, community order or a fine).

    • But if offender is given a discharge for one of multiple offences, court can sentence other sentences re the other offences.

  • Combining discharge orders with other orders On discharging an offender (conditionally or absolute), the court CAN:

    • (a) Impose any disqualification on him, or make a compensation order, deprivation order or restitution order, or confiscation order; or from making an order under s4 Prevention of Social Housing Fraud Act re an offence of unlawful profit.

      • Eg: disqualification from driving, disqualification from acting as a company director etc.

      • Can be combined with a recommendation for deportation.

    • (b) make an...

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