Are Magistrates too lenient or too strict?
It depends on which paper you read and what their angle is. Unfortunately most journalists have never actually witnessed proceedings in a Magistrates Court, and it would seem that some believe what they read in their own paper and what they see on television.
The following flow chart explains in simple terms the sentencing process that magistrates will apply in the ADULT CRIMINAL COURT from 1st April. The new sentencing options apply to sentencing of crimes committed after 1 April 2005. Similar sentencing options are also due to be brought into the Youth Court in 2008.
Sorry if it’s all uncontroversial, but it’s what happens. Click on an area and this will take you to a more detailed explanation.
GUIDELINES
Magistrates first consider the seriousness of an offence and look at the suggested entry point for sentence. The Magistrates’ Association produces Sentencing Guidelines which Magistrates use when sentencing. These are just guidelines and offer an “entry point” for most offences. These guidelines are regularly reviewed (for more information please visit the Magistrates Association (www.magistrates-association.org.uk) .
These guidelines also assume a Not Guilty Plea and that the case went to Trial. They also assume that this is the first offence committed by the defendant.
OFFENCE AGGRAVATION AND MITIGATION
Aggravation and mitigation of the offence is then considered and accordingly the Bench may adjust the entry point suggested by these guidelines. This might increase or decrease the level of seriousness. This may in turn increase or decrease the sentence level.
Examples
- Aggravation - racial motivation, drink or drug related, group action, etc.
- Mitigation - impulsive action, co-operation after the event, etc.
INTENTION
How intentional was the perpetration of the crime. At its highest it was quite deliberate, at its lowest it was negligent. The level of intention of the offender must have some influence the sentence.
RISK OF HARM
It is important to relate the offence to the victim when sentencing. This is done by looking at the potential harm that could have been or was caused. The higher the risk, the more seriously the offence will be treated.
OFFENDER AGGRAVATION AND MITIGATION
Offender mitigation or aggravation is then taken into consideration and the sentence is passed. This also may increase or decrease the sentence.
Examples
- Aggravation - offence committed while on bail, previous criminal record, response to previous sentences etc.
- Mitigation - genuine remorse, personal circumstances, etc.
REPORTS
Before sentencing, particularly when Community Penalties or Custody is being considered, magistrates are often assisted by the Probation Service or Youth Offending Team who produce pre sentence reports. These give additional information and follow an interview with the offender. These may influence the decision of the Bench. These are increasingly being produced on the same day so that the offender can be dealt with as quickly as possible.
SENTENCE
The final new element contained within the 2003 Courts Act is the purpose of the sentence. It is all too easy to tick each box, because there will always be some element of each of the potential aims to be considered. However we are encouraged to think a little more about why one particular sentence is more appropriate than another. This is even more crucial now that the Community Sentence has become a single sentence with various possible elements that we can attach to it. Previously there were a number of different Community Penalties that could not be intermixed.
An Early Guilty Plea attracts a reduction in sentence of a maximum of 1/3.
This does not mean pleading guilty minutes or hours before a trial. This means acknowledging one’s guilt at an early stage in the proceedings, showing genuine remorse for the commission of the offence and an acceptance to be punished for that offence.
A Guilty Plea at a later stage will attract a reduced “discount”, particularly if it means that witnesses are not brought to court. A sliding scale now operates (2003 Courts Act)
This structured process ensures a balance across the country so that similar offences attract similar levels of sentence. It must be remembered, however, that no two offences are the same, and comparisons are not usually helpful.
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