How do judges decide what sentence to give those found guilty of criminal offences in England and Wales?

How do judges decide what sentence to give those found guilty of criminal offences in England and Wales? This article This article by Hugh McFaul, Senior Lecturer in Law and Co-Director of the Open Justice Centre, outlines the key principles that guide judges in their decision making.

At the end of both episodes of Series 3 of the BBC/Open University documentary The Detectives we learn who was convicted for the very serious crimes investigated in the programmes. Not all the suspects are found guilty, and those who were received a very wide range of sentences, some facing one or two years in prison, whilst others received as much as 36 years; a remarkably lengthy sentence for a UK court.

Judges and magistrates do not have unlimited discretion regarding the type or length of sentence they pass...Sentencing is the responsibility of the judges and magistrates who work in the criminal justice system. Magistrates sit in Magistrates Courts , dealing with minor criminal matters and have limited sentencing powers, whereas more serious offences are dealt with by judges in Crown Courts . How do judges and magistrates decide what sentence to give those found guilty of criminal offences?

Judges and magistrates do not have unlimited discretion regarding the type or length of sentence they pass but are guided by a large body of legal rules and guidance intended to shape their decision-making process. A key part of this is the provision in section 142 of the Criminal Justice Act 2003 where Parliament has outlined the key purposes that should be considered when deciding a sentence:

the punishment of offenders
the reduction of crime (including its reduction by deterrence)
the reform and rehabilitation of offenders
the protection of the public
the making of reparation by offenders to persons affected by their offences.

In addition to this guidance, judges and magistrates have to pass a sentence that is within the permitted maximum for the particular offence. Unsurprisingly, this can vary widely depending on the nature of the criminal act. For example, section 7 of the Theft Act 1968 tells judges that the maximum possible sentence for theft is seven years imprisonment, whereas the Dangerous Dogs Act 1991 states that up to a six month prison sentence can be given to a dog owner whose dog is dangerously out of control.

For the most serious crimes, the Sentencing Act 2020 provides that the court is able to pass a life sentence with a whole life order, which means the offender will never be released from prison.In addition to any relevant statutory limits on the maximum sentence, judges are also given detailed guidance on what factors to consider when deciding on the length of the sentence. Such guidance will outline significant aggravating and mitigating factors. These might include the personal circumstances of the defendant, their previous record, the level of harm caused to the victim and whether or not they admitted their guilt. For example, the Sentencing Council provides guidance for determining the length of a sentence for theft. These state that a longer sentence should be passed if the value of the object stolen was over £100,000 or if there was a significant breach of trust or threats or intimidation were used. A shorter sentence is likely where little or no planning is in evidence or the defendant was intimidated by another party into committing the offence.

The most severe sentence available to a UK court is a life sentence which applies to the whole of the defendant’s life, although normally not all of the sentence is served in prison as the offender may be released on licence . The court can set a minimum period before which a prisoner serving a life sentence cannot be considered for release from custody. For the most serious crimes, the Sentencing Act 2020 provides that the court is able to pass a life sentence with a whole life order, which means the offender will never be released from prison. Ministry of Justice figures show that as of December 2020 there are 60 whole life prisoners in England and Wales, out of a total prison population of 78,000.

So, although the sentences given to the suspects in the TV programmes were decided by a judge, the surprisingly large variety in the length of the sentence is due to the need to follow the legal guidelines and to weigh up the particular aggravating and mitigating circumstances relevant to each defendant.

Hugh Mc Faul Hugh McFaul