Chapter 22 Adult offenders, young offenders and aims of sentencing
22.1 Adult offenders
- Aged 21 and above
Types of sentence
1. Custodial sentences
S152 of the Criminal Justice Act 2003
- Mandatory life sentences
- Compulsory for the judge to impose life sentences on a murderer
- Judge is required to set a minimum number of years’ imprisonment for the
offender to serve before being eligible for release on licence (min 12
years to whole life order)
- Release on licence
- Tariff Period: A minimum term of imprisonment (tariff period)
is imposed by the judge. This must be served before the
offender becomes eligible for release.
- At the end of the tariff period, the Parole Board evaluates:
- Whether the offender admits the crime.
- If the offender still poses a danger to society.
- The offender's behavior during imprisonment.
- Release Conditions: If deemed fit for release, the offender will
be released under certain conditions, such as:
- Residence restrictions (where they can live).
- Employment conditions (what job they can take).
- Wearing an electronic tag.
- Restrictions on whom they can associate with.
- Aggravating factors (increase the minimum term ordered) include
whether the victim was particularly vulnerable because of age, disability,
mental or physical suffering inflicted on the victim before death
- Mitigating factors include that the offender only intended to cause
grievous bodily harm rather than intent to kill, lack of premeditation or the
offender acted to some extent in self-defence.
S122 of the Legal Aid,Sentencing and Punishment of Offenders Act 2012
- Offenders aged 18 and above who commit a second serious offence must be
imposed a life sentence (include manslaughter,robbery,burglary)
- Discretionary life sentences
- For the first commission of serious offence (manslaughter, rape, robbery)
- Maximum sentence: life sentence (judge has discretion in sentencing to
not give the maximum sentence if it is considered appropriate.)
- Fixed-term sentences
1. Definition and Statutory Limits:
- Fixed-term sentences apply to less serious crimes, with
maximum lengths set by statute (e.g., theft carries a maximum of
seven years under the Theft Act 1968).
- Sentencing depends on the crime's seriousness and the
offender's prior record, with possible increases for aggravating
factors such as racial or religious motives.
2. Characteristics:
- Fixed-term imprisonment lasts for a specific number of months or
years.
- Prisoners generally serve half of their sentence in custody and
the rest on licence.
- Exceptions apply for terrorism-related offences, where release
on licence occurs after two-thirds of the sentence.
3. Release on Licence:
- Release on licence is subject to approval by the Parole Board.
- Conditions may include restrictions on residence and regular
reporting to authorities such as a police station or probation
service.
- Suspended sentences
1. Definition
- A suspended sentence is a prison sentence that is not
immediately served.
- The offender will only serve the sentence if they break the terms of
the suspension.
- The idea is that the threat of prison will deter the offender from
committing further crimes.
2. Conditions of a suspended sentence
- The suspended sentence can include requirements like staying
out of trouble with the law, attending rehabilitation programs, or
paying fines.
- The offender can combine the suspended sentence with any of
the requirements used in a community order.
3. When is a suspended sentence used?
- A suspended sentence is only given when the offense is serious
enough to warrant a prison sentence, but there are exceptional
circumstances that justify suspending the sentence.
- If the offender fails to meet the requirements of the suspended
sentence, it may be "activated," and the offender will have to
serve the prison sentence.
2. Community orders
S177 of The Criminal Justice Act 2003
- Community orders are used when a prison sentence is not considered
necessary. They are designed to help offenders address the reasons behind their
crimes and rehabilitate themselves.
- Aim: to help the offenders address the underlying issues that led to their
offending behavior and reduce the risk of reoffending by rehabilitation.
- Judges can combine different requirements to create a tailored sentence for each
offender.
- Requirements that can be included in a community order:
- Unpaid work
- This requires the offender to work for between 40 and 300 hours
on a suitable project organised by the probation service.
(painting school buildings, helping build a play center, or working
on conservation projects.)
- Attending rehabilitation programs
- This requires the offender to undertake a course, either
educational or practical.
- Prohibited activity requirement
- This requirement allows a wide variety of activities to be
prohibited.
- The idea is to try to prevent the offender from committing another
crime of a similar type.
- This can also involve banning the offender from going into a
certain area or wearing specific clothing (e.g. Hoodie).
- For example, an offender who is found guilty of criminal damage
might be banned from carrying paint or marker pens.
- Curfews
- An offender is required to stay at a specific address for 2-16
hours each day and can extend up to 12 months.
- Can be enforced through electronic tagging or traditional
monitoring methods like spot checks.
- Restricts the offender's movements, reduces opportunities for
reoffending, and promotes rehabilitation.
- Exclusion zones
- An offender is prohibited from entering certain areas or places.
- Duration: Can last up to two years.
- Prevents the offender from accessing areas where they might be
tempted to reoffend or where their presence could cause harm to
the community.
- Living at a certain address
- This requires the offender to live at a certain address.
- This is often used in conjunction with curfews or exclusion zones.
- Drug or alcohol treatment
- Addresses substance abuse issues that may be contributing to the
offender's criminal behavior.
- Requires the offender to participate in rehabilitation programs,
which may include counseling, medication, and support groups.
- Mental health treatment
- Addresses the underlying mental health issues that may be
contributing to the offender's criminal behavior.
- Requires the offender to participate in therapy or counseling to
manage their mental health condition.
3. Fines
- Fines are a common sentence for less serious offenses.
- Magistrates' Court: Fines are used for about 70% of cases.
- Crown Court: Fines are used for a smaller percentage of cases.
- Amount: The amount of the fine is based on the offender's income and assets.
4. Discharges
- Conditional discharge
- On the condition that no further offence is committed during a set period
of up to 3 years
- Widely used for first-time minor offenders in Magistrates Court, when
punishment is not necessary
- Reoffends within the time, can impose another sentence in place of the
conditional discharge, penalty for the new offence
- Absolute discharge
- No penalty is imposed
- Technically guilty but morally blameless
Factors in sentencing adult offenders
1. Judges consider both aggravating and mitigating factors when sentencing.
- Aggravating factors: These increase the severity of the sentence.
- Mitigating factors: These reduce the severity of the sentence.
2. Offense detail
- These are established through a plea deal or a Newton hearing.
3. Offender's background
- Previous conviction (aggravating/ mitigating factor)
- Financial circumstances of the offender.(to ensure the fine is appropriate and can
be paid.)
4. Pre-sentence reports
- Prepared by the probation service
- Provide information about the offender's background, suitability for a
community-based sentence, and reasons for committing the crime.
- Typically used before custodial sentences, especially when considering
community sentences.
- For less serious offenses.
5. Medical reports
- Prepared by a doctor
- Provide information about the offender's medical or psychiatric condition.
- Can influence the type of sentence and the way the offender is dealt with.
6. Sentencing guidelines (by The Sentencing Council established in 2010.)
- Responsibilities: Developing and monitoring sentencing guidelines, assessing
their impact, and promoting awareness of sentencing practices.
- Guidelines: The council issues guidelines for specific offenses, including
aggravating and mitigating factors.
- Judges and magistrates must impose sentences within the offense range set by
the council, only departing when necessary.
- Offense Severity: The most important factor in sentencing is determined by the
seriousness of the offense.
- Aggravating factors
- Previous convictions for similar offenses
- Committing the offense while on bail
- Offenses motivated by racial, religious, disability, or sexual
orientation hostility
- Pleading not guilty
- Other points (e.g. in a case of theft/ assault/ several offenders)
- Mitigating factors
- No previous convictions
- Showing genuine remorse
- Taking a minor part in the offense
- Pleading guilty
- A guilty plea can result in a reduced sentence.
- The reduction amount is on a sliding scale.
- To reward early guilty pleas, avoid trials, and save costs and
stress for victims and witnesses.
- Early Plea: A plea made at the first reasonable opportunity can
lead to a reduction of up to one-third, but this is reduced to 20% if
the prosecution case is overwhelming.
- Later Plea: A plea after the trial has started would only receive a
10% reduction.
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7. Aims of sentencing for adult offenders
S142 of The Criminal Justice Act 2003
- Punishment of offenders
- aka. retribution, is the idea that offenders deserve a penalty for their
criminal acts.
- Retribution focuses on the crime committed and the offender's
responsibility, rather than on future behavior or societal good.
- Involves a sense of revenge or justice for the victim and society.
- This concept is used to justify long prison sentences, including the death
penalty, for serious offenses.
- Retribution today is based on the idea of a set tariff for each offense.
- The Sentencing Council provides guidelines for the most common
crimes, including a starting point and a range for the sentence.
- The guidelines also outline factors that can increase or decrease
the severity of the sentence.
- Reduction of crime
Deterrence is a key aim of sentencing, designed to discourage both the individual
offender and potential offenders from committing crimes.
1. Individual deterrence: This aims to prevent the specific offender from
re-offending by imposing a punishment that will deter them from future
criminal activity.
2. General deterrence: This aims to discourage potential offenders from
committing crimes by making an example of the offender and showing
the consequences of their actions.
3. Educative deterrence: This aims to send a message to society about
the consequences of certain behaviors, particularly through the use of
punitive sentences for specific offenses.
Criticisms of deterrence:
1. Individual deterrence: Critics argue that many crimes are impulsive and
committed under the influence of drugs or alcohol, making it unlikely
that offenders will consider the consequences of their actions.
2. General deterrence: Critics argue that potential offenders are rarely
deterred by the sentences imposed on others.
3. Educative deterrence: Critics argue that this approach is ineffective,
especially for older offenders who may not be as influenced by punitive
measures.
- Reform and rehabilitation of offenders
Reform and rehabilitation aim to change the offender's behavior and reintegrate
them into society.
- This approach focuses on preventing future crime by addressing the
underlying causes of the offender's behavior.
- The goal is to change the offender's mindset and habits to reduce the
likelihood of reoffending
- Rehabilitation became a significant focus in sentencing during the second
half of the 20th century, particularly with the development of community
sentences.
- Recognising the link between drug abuse and crime, community
orders like drug testing, treatment, and abstinence orders were
introduced to rehabilitate drug abusers.
- Rehabilitation is a key principle in sentencing young offenders,
considering their potential for change and rehabilitation.
- Judges and magistrates use pre-sentence reports to gather
information about the offender's background, including factors like
school reports, job prospects, and medical issues, to inform their
sentencing decisions.
- Protection of the public:
- This involves ensuring that the offender is unable to harm others.
- Custodial Sentences:
- Detention: Imprisoning offenders prevents them from committing
further crimes and harming the public.
- Life Sentences: For serious crimes like murder or serial killing,
offenders can be sentenced to life imprisonment to protect the
public.
- Parole Board: After serving a significant portion of their sentence,
some offenders may be eligible for release on license. The parole
board carefully considers the offender's behavior in prison,
acceptance of their crime, and the risk they pose to the public
before making a decision.
- Less Serious Offenses:
- Curfews: Imposing curfews can restrict the offender's movements
and limit their opportunities to reoffend.
- Driving Disqualifications: Disqualifying offenders from driving can
prevent them from causing harm on the roads.
- Making reparation by offenders to persons affected by their offences
- This involves compensating victims for the harm caused.
- Monetary Compensation: The offender is ordered to pay a sum of
money to the victim to compensate for the financial loss or harm
caused by the crime.
- Restitution: The offender is required to return stolen property or
repair damaged property. This can be a physical act of returning
the stolen goods or paying for repairs.
- Restorative justice - focuses on repairing the harm caused by crime.
- Direct reparation: the offender making direct amends to the victim,
often through community service or restitution.
- Indirect reparation: This involves making reparation to the wider
community.
Section 130 of the Powers of Criminal Courts (Sentencing) Act
- Judges and magistrates are legally obligated to consider
ordering compensation to the victim of a crime, in addition to
any other penalties they may impose.
- Judges must actively consider the potential for restorative justice
and explain their decision if they choose not to order
compensation.
22.2 Young offenders
- Aged under 21
- Differences sentence available for:
● Under 21
● Under 18
● Under 16
● Under 14
● Under 12
Types of sentences
1. Custodial sentences
Detention at Her Majesty’s Pleasure
- Aged between 10 and 17
- Convicted of murder
- Must be ordered to detained with a minimum term 12 years
- This is an indeterminate sentence that allows the offender to be released on licence
after serving the minimum term
- If the offender reaches the age of 21 while serving a sentence, they will be transferred to
an adult prison
Detention for serious crimes
- Additional powers to order that the offender be detained for a longer periods
- Convicted an offence which for an adult offender could receive a custodial sentence
for 14 years or more
- OR, commit certain sexual or firearms offences
- The length of detention cannot be longer than the maximum sentence for an adult
- Young offenders convicted of serious crimes like robbery, burglary, or firearms offences
could receive indeterminate or extended custodial sentence if regards as
dangerous by the court
Young offender institutions
- Aged between 15 and 20 can be sent to young offender institution
- Minimum custodial sentence: 21 days
- Maximum allowed for the particular offence
- If the offender reaches the age of 21 while serving a sentence, they will be transferred to
an adult prison
Detention and training orders
- Created by The Crime and Disorder Act 1998
- Must be for a specified period, with minimum 4 months and maximum 24 months
- The first half period is spent in custody, other half in the community
- Aged 15-17 if convicted an offence for which an adult would be sentenced to prison
- Aged 12-14 if the court consider that are persistent offenders
- NO aged 10 and 11 can be given this sentence
2. Community order
Youth rehabilitation order
- Introduced by Criminal Justice and Immigration Act 2008
- For under 18 and will last for a maximum of three years
- The court can mix and match requirements to suit the circumstances
- Requirement:
● An activity requirement
● A supervision requirement if the offence was so serious that the offender could
be imprisoned (supervision, curfew, electronic monitoring and activity must be
part of this order)
● In a case where the offender is aged 16-17 at the time of the conviction, an
unpaid work requirement
● A programme requirement to take part in set activities
● An attendance centre requirement; this orders the offender to go to a centre,
usually on a weekend morning, once a week for a period of time, where they are
expected to participate in activities and attend lectures
● A prohibited activity requirement to refrain from taking part in specified
activities at certain times
● A curfew requirement
● An exclusion requirement
● A residence requirement to live at a certain address
● A local authority residence requirement to. live in provided accommodation
● A mental-health treatment requirement
● A drug treatment requirement
● A drug testing requirement
● An intoxicating substance treatment requirement
● An education requirement
3. Parental responsibility
- Parents can be bound over (make sure your child not to do/follow instruction)
- to keep their children control for a set period of up to one year
- to ensure that a young offender complies with a community sentence
(supervise)
- Under the age of 16
- Parents must be ordered to pay for fine or compensation (financial
situation is taken into account in deciding the amount of the order)
- *17-20 may be ordered to pay fine/compensation themselves
- Parenting order
- Issued to parents containing conditions up to a maximum of 12 months
where a child under the age of 16 has been convicted of an offence.
- The youth offending team has responsibility for obtaining compliance,
which can ultimately be enforced against the parents by the court.
Factors in sentencing young offenders
- According to the Sentencing Council’s 2017 report ‘Sentencing Children and Young
Persons’, the main aims of sentencing young offenders should be to
- Prevent further offending
- Ensure the welfare of the child
- The court should take into account the conditions, if the child:
1. Suffering any mental-health issues or has learning difficulties
2. Has suffered any traumatic life experiences
3. Has any speech or language difficulties
4. Is likely to self-harm
5. Has experienced any loss, neglect or abuse
6. Has issues such as the misuse of drugs and/or alcohol (or their family has)
- When sentencing, focus on the needs of the child and aim, where possible, on their
rehabilitation. It should consider any of the following factors that may be relevant:
1. Age and maturity of the child, and whether the child is fully developed for their
age (lack of maturity could affect the child’s decision making; they may be more
prepared to take risks or they may take greater account of negative influences
around them)
2. The seriousness of the offence committed
3. Their family circumstance, including whether they are in care
4. Any previous record of offending
5. Whether the child admits the offence
6. The likely effect of a sentence on the child, including the possible effect on their
future education and training.
Encourage Responsibility and Reintegration:
● Efforts should focus on helping the child take responsibility for their actions and
reintegrate into society.
● Restorative justice, involving discussions with the victim about the crime's impact, should
be considered.
Learning Without Harsh Punishment:
● Evaluate if the child can learn from their mistakes without excessive penalties.
Custodial Sentences as Last Resort:
● Custodial sentences should only be used for very serious crimes when no other
punishment is suitable.
● While deterrence may be considered for serious offenses, the child's needs and welfare
should take priority.
22.4 Aims of sentencing: young offenders
Aims of Sentencing: Young Offenders
1. Focus on Reformation and Rehabilitation
○ Young offenders are treated differently from adults, except in the most serious
cases.
○ Cases are usually handled in Youth Court, with the offender's identity kept
confidential to protect their future.
2. Legal Principles (Criminal Justice Act 2003, Section 142A):
○ Sentencing aims to:
■ Prevent reoffending.
■ Prioritise the welfare of young offenders.
■ Punish appropriately.
■ Reform and rehabilitate.
■ Protect the public.
■ Promote reparation to victims.
3. Rehabilitation as the Primary Aim:
○ Sentences should address the individual needs of the offender, avoiding
unnecessary criminalization.
○ The system encourages offenders to take responsibility and reintegrate into
society rather than focusing solely on punishment.
○ The welfare of the child is prioritized, which may involve removing them from
harmful surroundings and ensuring proper education and training opportunities.
4. Support for Parents:
○ Assistance is provided to parents to improve their parenting skills, which can
enhance life chances for the child and reduce reoffending.
○ If parents neglect their responsibilities, parenting orders may require them to:
■ Attend parenting programs to develop skills.
■ Supervise their child during specified times.
5. Lower Sentences for Young Offenders:
○ Due to immaturity and impulsiveness, young offenders are considered less
culpable than adults and receive proportionately lower sentences.
6. Child’s Best Interests:
○ Rehabilitation is prioritized, considering the child’s needs and welfare to reduce
reoffending and improve life outcomes.