Someone recently bought our

students are currently browsing our notes.

X

Sentences In Mags And Crown Court Notes

BPTC Law Notes > BPTC Criminal Litigation Notes

This is an extract of our Sentences In Mags And Crown Court document, which we sell as part of our BPTC Criminal Litigation Notes collection written by the top tier of City Law School students.

The following is a more accessble plain text extract of the PDF sample above, taken from our BPTC Criminal Litigation Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Sentences in the magistrates and Crown Courts
Sentences available to m' court and Crown Court
Type of Sentence
Bind Over
Absolute discharge
Conditional discharge
Fine
Community Order
A suspended prison sentence
A determinate custodial sentence

Mandatory minimum sentence for a third domestic burglary
Mandatory life sentence for murder?

Magistrates' Court
Yes
Yes
Yes
Yes (subject to any statutory maximum)
Yes
Yes (though the suspended custodial term is subject to the same maximums below)
Yes, subject to a max of 6 months, or two 6-month sentences to run consecutively where charged with 2+ either-way offences
No

Crown Court
Yes
Yes
Yes
Yes (subject to any statutory maximum)
Yes

No

Yes

Yes (limited only by statutory maximum for an offence)

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:
o 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?
A special case

M' Court and Crown Court (and Court of Appeal)Remember, sentence (this ch) is the phase occurring only after a ? not JUST a sentence??

What is it

When can it be imposed

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.
-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.
It's not just a sentence, so it can be imposed:
a) 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.
b) 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).
c) Where a D is acquitted, but court considers that a person may breach the peace in the future.
d) 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. How is this sentence passed in court?
Consequence s of breach

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.
"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 PS100 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 PS100. At the end of the year, if you have kept the peace, you pay nothing".
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).
o 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:
o (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.
o (b) make an order under s21A Prosecution of Offences Act (crim courts charge) [this is now effectively abolished]
o (c) make an order for costs against the offender

Re a football banning order: CANNOT be combined with an absolute discharge; but CAN with a conditional discharge.

Absolute discharge
Who has the power to

M' Court and Crown Court
All ages of offender impose it?
What is it???When can it be imposed
How is this sentence passed in court?
Consequence s of breach

The lowest form of sentence available to a court.
Usually imposed to reflect either:
(1) the triviality of the offence,
(2) the circumstances in which an offender came to be prosecuted,
or (3) special factors relating to the offender.
It is, in effect, no punishment at all ? there is nothing the D must,
or must not, do to comply; it cannot be breached; there are no conditions attached; it is 'spent' immediately (for purposes of
Rehabilitation of Offenders Act).
No surcharge is payable

Can be imposed on conviction of any offence, EXCEPT those set out in s12(1) Powers of Crim Court (Sentencing) Act 2000 ? i.e. offences where sentence is fixed by law or there is a mandatory minimum sentence.
"Mr Smith, taking into account the triviality of this offence, I am going to discharge you absolutely"

There is no way of breaching an absolute discharge so breach proceedings don't exist.

Conditional Discharge
Who has the power to impose it?
What is it

When can it be imposed

M' Court and Crown Court
All ages of offender
A discharge (so again, no actual punishment) but with a condition attached.
-Condition = if the D commits another offence during the period specified (max 3 YEARS), they can be re-sentenced for the original offence and sentenced for the new offence.
-The specified period of conditional discharge must be no more than 3 YEARS.
-S12(6): a court may, on making an order for conditional discharge,
allow any person who consents to give security for the good behaviour of the offender.
Can be imposed on any offence, EXCEPT FOR:
a) Those set out in s12(1) PCC(S)A 2000 (offences where sentence is fixed by law or there is a mandatory minimum sentence.
b) Breach of a Sexual Offenders Prevention Order (pre 8 March 2015) / Sexual Harm Prevention (post 8 March 2015). [[these are the same orders, they changed name]]
c) Breach of an Anti-social behaviour order (pre 8 March 2015 name)How is this sentence passed in court?

Consequence s of breach

/ Criminal behaviour order (post 8 March 2015).
Re youth orders, WHERE:
(a) a person who has received 2+ youth cautions is convicted of an offence committed within 2 years of the date of the last of those cautions; OR
(b) a person who has received a youth conditional caution followed by a youth caution is convicted of an offence within 2 years of the date of the youth caution

? the court must NOT order a conditional discharge, UNLESS
'exceptional circumstances' justify it
"Mr Smith, you are conditionally discharged for a period of 12 months.
That means if you don't commit an offence for 12 months from today,
there will be no further punishment for this offence. If, however, you do commit another offence during that 12-month period you will be sentenced for that new offence and the court may re-sentence you to this offence".
-The only way to breach is to commit a further offence during the period that the order is in force.
-It is the further offence which must be committed during the period the order is in force, but the D may appear in court some time after that period.
-Upon conviction (plea or verdict) of the second offence, the court will sentence him for offence 2, and MAY re-sentence him for offence 1.
-Court is not obliged to re-sentence a D who breaches conditional discharge.
-Court can deal with him for the original offence in any way it could do as if he had just been convicted of that offence (i.e. if has now turned 18, as an adult, even if wasn't originally an adult when committed the offence. Subject to indictable-only offences, see below, fine or 6 months). [presumably relevant time as the date of conviction of the new offence]
-Sentencing for the original offence following breach always terminates the conditional discharge itself; BUT any ancillary order for compensation/costs made at the time of the discharge remains valid.
-Sentencing powers for dealing with a breach by re-sentencing a D,
following a plea/verdict of guilty: (Essentially: if m' court imposed the conditional discharge, then the re-sentencing is limited to m'
court maximum for the original offence)
Court which imposed the conditional discharge
M' Court

Sentencing Court for the Breach
M' Court

Crown Court

Can re-sentence D
for the original

Can re-sentence D
for the original offence to anything it could have sentenced him to at the time

Crown CourtOne magistrates court may deal with breach of a conditional discharge imposed by a different m'
court, but only with consent of the original m' court.
Where Crown Court imposed the conditional discharge ? the m'
court Cannot resentence the D, and must commit him to Crown Court to be sentenced for the breach, under s13(5) PCC(S)A

2000. offence, but is limited to the M'
Court sentencing powers for that offence

Can re-sentence the D for the original offence to anything it (the
Crown Court) could have sentenced him at the time

NB, where a conditional discharge is imposed on appeal, it shall be deemed: if made on appeal from m' court, to have been imposed by that m' court; and if made on appeal from Crown Court or CA,
to have been made by the Crown Court.

Where a youth turns 18 before committing the next offence
-Where an offender aged under 18 has been conditionally discharged by a m' court in respect of an indictable-only offence
(if an adult) ? and the offender has now, on breach, turned 18

? the powers of court are:
o to impose a fine for the original offence,
o AND/OR any sentence which a m' court could deal with him if it had just convicted him of an offence punishable with imprisonment for a term not exceeding 6 months.

Fines Who has the power to impose it?

What is it

When can it be imposed

M' Court and Crown Court
M' Court:
fines are set on a standard scale from Level 1 (PS200) to Level 5
(unlimited).
-Where a statute fails to set amount on summary conviction, is assumed to be level 3 (PS1,000).
o NB, for crimes committed before 12 March 2015, previous limitations on max fine in m' court apply: previous limitations on a 'relevant offence' that was punishable on summary conviction by a fine of PS5k of more was subject to limitations.
Now such offences are punishable by any amount, no limitations.
o For other offences, where the max fine was previously in excess of PS5k, the max fine becomes a fine of any amount.
Crown court: no upper limit.
-A financial penalty requiring a D to pay a certain sum of money to the court on conviction.
-The amount is due immediately, and can only be paid in instalments with agreement of the court.
-But court can allow time for payment, or allow payment in instalments.
-S163 CJA 2003
-Can be imposed on conviction (plea or verdict) of any offence,
unless specifically prohibited by statute (eg an offence with a mandatory minimum sentence).
Combining fines with other sentences or orders
-A fine can be imposed alongside any other sentence EXCEPT for:
a) a hospital order;
b) a discharge (conditional or absolute) when sentencing for a single offence [[remember a discharge cannot be combined with a punitive measure]].?Although there is no general prohibition, it is generally accepted as undesirable to impose a fine with imprisonment: since incarceration may well deprive the offender of the means to pay.
In any event, a fine and custodial sentence will be an inappropriate combo where the offender lacks the means to pay the fine and hence will serve the term 'fixed in default' of payment; or where the offender will be saddled with a significant financial burden on his release from prison.
A fine may be combined with an immediate custodial sentence,
such as where the fine is being used as a means of removing an offender's profit from his offending. But a more appropriate method to remove proceeds of offending is make a confiscation order.

Buy the full version of these notes or essay plans and more in our BPTC Criminal Litigation Notes.

More BPTC Criminal Litigation Samples