September 2011 articles archive:

The sentencing guidelines and those emails

We should be grateful to Owen Bowcott, legal affairs correspondent, for his article 'Magistrates were told to send rioters to Crown Courts, emails show.'

Many of you will be learning about the criminal justice system and your tutors will no doubt draw your attention to the fact that under our system we have two courts which are charged with the task of hearing criminal cases as courts of first instance - the Magistrates Court and the Crown Court.  You will also learn something about their respective jurisdictions including the sorts of cases they deal with.  Magistrates Courts deal with 'summary' or minor offences and Crown Courts deal with 'indictable' or serious offences.

Examples of summary offences include driving without insurance, taking a vehicle without consent and common assault.

Examples of indictable offences include murder, manslaughter, rape and robbery.

In addition there is a third category of offences known as 'either way offences' because, as the name suggests, they can be tried in either the Magistrates Court or the Crown Court.  Either way offences are seen as middle range cases in terms of seriousness and examples include theft, assault causing actual bodily harm and obtaining property by deception.  Many wither way offences are dealt with by Magistrates' courts and collectively, summary offences and those either way offences which are dealt with by Magistrates' courts, account for about 97% of all criminal cases.  It is for this very reason that we are told that the work of the Magistrates Courts is so vital to our criminal justice system.

One of the reasons why cases are allocated in this way is because the respective courts have different sentencing powers and such categories enable the courts to deal with cases which reflect their seriousness and their different sentencing powers. Each court can therefore deal with cases which enable them to exercise their discretion according to the sentencing guidelines handed down by the Sentencing Council.

The suggestion is however, that following the large numbers of arrests for such offences as violent disorder and looting in August 2011, recently disclosed emails passing between Her Majesty's courts and Tribunals Service to local justices' clerks (legal advisers to the lay magistracy), did not properly take account of the authority of the sentencing guidelines which are intended to provide guidance over what might be appropriate in terms of a sentence.  The Sentencing Council have been tasked with the job of coming up with guidelines which the judiciary can refer to in order to help them decide upon an appropriate sentence.  Whatever role Her Majesty's Courts and Tribunals Service(HMCTS) do have it does not include the ability to give advice about how a convicted criminal should be sentenced.

. We should be grateful to Owen Bowcott, legal affairs correspondent, for his article  Magistrates were told to send rioters to crown court, emails show The Guardian Wednesday 14th September 2011. 

The article raises a number of issues, not least being about the role of sentencing guidelines and how they come about as well as the independence of the judiciary.

The point is also well made by Paul Mendelle QC, a former chairman of the  Criminal Bar Association, that there are such things as aggravating factors that ordinarily may lead to harsher sentences, and that participation in rioting and looting, in many people's opinions, ought properly to be considered to be aggravating factors.

Who are we going to call? Merseyside's gang-buster

The new Commissioner of Scotland Yard is to be Bernard Hogan-Howe.

 Bernard Hogan-Howeis to be the new Commissioner of Scotland Yard. He has a formidable reputation as being tough on crime in Merseyside where the community saw a reduction in crime of a third whilst he was Chief Constable of Merseyside.

These are troubled times and Theresa May, Home Secretary, made it clear why Hogan-Howe got the job when she described him as a "tough, single-minded crime fighter."  Will the new Commissioner be able to restore public confidence in the Metropolitan Police in light of concerns over the number of police officers on the beat, the scale of public unrest including rioting and looting in the capital and concerns about security and public safety during the 2012 Olympics, not to mention the safety of the athletes, spectators and dignitaries when the eyes of the world may be upon us?

There is also the issue of phone hacking and every police officer's worst nightmare - being tainted by allegations of impropriety and corruption.  A big task awaits Bernard Hogan-Howe.

At a time when tutors are welcoming new Uniformed Public Service students and trying to reassure them about the worth or value of considering a public service career, this new appointment may serve as an appropriate reminder of why people take on such challenges and what may set them apart.  Surely nobody joins the police 'service' to complete paperwork - they join to catch criminals and to be the best in the role they have chosen.

Mr Hogan-Howe seems convinced that the correct approach is to launch 'total war' on wrong-doers, especially known gun criminals. He is also committed to going after ill-gotten gains and assets from convicted criminals.  The Home Secretary seems to share this view as does Boris Johnson, the London Mayor.  Does this appointment match the public's anger and mood about recent events around the country?  Suggestions and reminders that London's problems are linked to gangs is not necessarily universally accepted.  

A 'softly softly' approach may not cut any ice with the new Commissioner - will we see evidence of a hardening of public opinion about how best to go about policing and will this spill over into arguments about the criminal justice system and sentencing policy?  

 The appointment may turn out to be a valuable resource in terms of opening a debate about what the  Metropolitan Police  need in a new Commissioner. 



Sentencing - the Attorney-General's power to refer an unduly lenient sententence to the Court of Appeal

Those of you who are researching the Attorney-General's ability to apply for leave to refer an unduly lenient sentence to the Court of Appeal, may find the case of Lee Williams of interest.

Lee Williams had been convicted, following a trial at crown court, of what seems to have amounted to cocaine smuggling.  Cherie Blair QC, sitting as a Recorder, sentenced Williams to a 12-month suspended sentence.

The Appeal Court Judge, Lord Justice Pitchford, reportedly described the original sentence as 'remarkable' when he quashed the sentence on the basis that it was 'unduly lenient.'  A sentence of three and a half years was handed out instead.  The timing is perhaps unfortunate, bearing in mind the growing debate about sentencing in the wake of public disorder offences earlier in the year and the subsequent on-going debate about the adequacy of sentencing guidelines and the criminal justice system generally. 

The latest statistical issue to arise from the sentencing figures post the riot convictions and sentences, is that it seems nearly 3 out of every 4 defendants had a prior conviction for a criminal offence.  According to Kenneth Clarke this is further confirmation that the sentencing policy, if not the criminal justice system itself, is not working properly as this evidence shows that offenders have apparently not learnt the error of their ways from their previous treatment under the system.

The Attorney General
   can apply under Section 36 of the Criminal Justice Act 1988 for leave to refer an unduly lenient sentence to the Court of Appeal.  The Court of Appeal has the power to uphold the sentence or to quash it and substitute its own sentence.  Will such referrals fuel the debate about the rights and wrongs of the criminal justice system at the present time?

Such referrals operate as a safeguard against what the public may see as a sentence which does not properly act in the public interest.  Williams had after all been convicted of conspiracy to supply a class A drug into the UK.  The cocaine, which amounted to nearly 1kg, had a street value of about £145,000.  Whilst acknowledging that Williams may not have been an organiser or leader he was thought to have been 'near the top of the food chain' although this was disputed by his lawyer.

Apparently some 300 cases are brought to the attention of the Attorney-General each year.  The present Attorney General is Dominic Grieve.  In most cases the Crown Prosecution Service will bring cases to the attention of the Attorney-General but it is possible that in some instances the Attorney General will be contacted by members of the victim's family if they feel that the sentence handed out was particularly inadequate.  Such cases need to be kept in perspective bearing in mind the numbers of sentences handed out each year and any increase in the number of references is not necessarily a measure of any dissatisfaction of sentencing policies generally.



Those August riots again – sentencing

Is the judiciary really independent and in touch with public opinion or are they constrained by sentencing guidelines which do not enable them to reflect the individual circumstances of the offence and all the surrounding facts?

For an informed and interesting discussion about the sentencing of rioters and looters in the context of the criminal justice system and sentencing guidelines, you may find the article “I predict a riot – about sentencing” by Felicity Gerry, Halsbury's Law Exchange 12 August 2011, of interest. Apart from the obvious references to demands for tougher sentences, the article also raises the problem of how to differentiate between rioters who are participating and those who may have organised crimes of violence and public disorder, as well as the matter of when it might be appropriate for some offenders to be dealt with by summary proceedings in the Magistrates Court and more serious offences to be sent by way of committal to the Crown Court for sentencing.

The practicality of sentencing guidelines is also raised along with issues of consistency and comparisons with sentences handed out for criminal offences which are not committed during public disorder.

Our attention is also drawn to the work of the Sentencing Council.


The Sentencing Council  was set up under the Coroners and Justice Act 2009 in order to promote greater transparency and consistency in sentencing, but at the same time respecting the independence of the judiciary. The council is associated with the Ministry of Justice and replaced its predecessors, the Sentencing Guidelines Council and the Sentencing Advisory Panel. A major part of the organisation's work is to prepare sentencing guidelines.

Once the dust has settled it remains to be seen whether the Sentencing Council will come under any political scrutiny as politicians wish to be seen to be tough on crime.


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