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.

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