Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘Sentencing Council

Mental health and Fair Trial

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Since 2015 the Human Rights group JUSTICE has produced a remarkable series of reports on different aspects of the justice system. (I declare an interest; I am a member of the JUSTICE Council.)

Their report Mental Health and Fair Trial was published in November 2017. in it, it outlined the precarious position vulnerable people may be in when confronted by the criminal justice system.

Since the JUSTICE reports are written by specialist sub-groups with specific knowledge of the issues raised, the recommendations they propose are aimed at dealing with practical challenges faced by those working in criminal justice. The available evidence suggests that people in the criminal justice system are far more likely to suffer from mental health problems than the general population.

The report argues that ‘argues that from first contact with the police through to sentence, there remain fundamental problems with the English justice system’s response to mental health. Left unaddressed the fair trial rights of many defendants may be undermined.’

The report makes over 50 recommendations for change grouped into the following broad categories.

1. The investigative stage – Mental health experts, not police officers, should be identifying people with vulnerability as a result of mental ill health or learning disability and those identified should have access to proper support.
2. Decision as to charge or prosecution – A specialist prosecutor should be appointed for each Crown Prosecution Service area who must make the charging decision in cases of vulnerability, assisted by up-to-date guidance and assessments.
3. Pre-trial and trial hearings – Trial processes can be bewildering and incomprehensible for those with mental ill health and learning disabilities. Magistrates’ courts, youth courts and the Crown Court should have a dedicated mental health judge with enhanced case management powers and responsibility for a case progression protocol.
4. Legal capacity tests – A capacity based test of fitness to plead and fitness to stand trial, placed on a statutory footing should be available in all courts and the “insanity” defence should be amended to a defence of ‘not criminally responsible by reason of a recognised medical condition’.
5. Disposal and sentencing – A Sentencing Guideline on mental health and vulnerability should be created and a broader range of disposals made available to sentencers to meet the needs of the case.

Although the report was launched with strong support from the Lord Chief Justice, it is not known whether the Government or other agencies mentioned in the report have actively taken forward these recommendations. But they deserve careful consideration.

The report is available at https://justice.org.uk/mental-health-fair-trial/

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Written by lwtmp

July 11, 2018 at 2:01 pm

Stricter guidance for sentencing offenders who plead guilty

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One of the issues that the criminal justice system faces is to decide what incentives should be offered to those who are being prosecuted through the courts to plead guilty.

Legislation has for many years provided that sentencing discounts for early guilty pleas should be applied. (Criminal Justice Act 2003, s 144). Gudidance on how the power should be exercised was published in 2007.

Under s120(3)(a) the Coroners and Justice Act 2009 the Sentencing Council has been required to prepare new sentencing guidelines about the discharge of a court’s duty under

the 2003 Act. Following a period of research into how the current guidance is working, the Sentencing Council announced in February 2016 that it was consulting on new guidance on the reductions in sentence where a defendant pleads guilty.
In summary the Council proposes to bring forward the point at which a guilty plea must be made if the defendant is to obtain the maximum sentencing reduction.

It will do this by maintaining the current level of reduction (one third) for those who plead at the first stage of court proceedings, but giving a lower reduction than that available currently for a guilty plea entered any later in proceedings.

The stage at which an offender can benefit from the maximum one-third reduction will be much more tightly defined.

Under the Council’s proposals, to qualify for the maximum reduction, an offender must plead guilty the first time they are asked for their plea in court.

For offenders who plead guilty after that first stage the maximum reduction they can be given will be reduced to one-fifth, compared to one-quarter under the current process. Reductions then drop further the closer to the trial date the plea is entered.

It should be stressed that the reduction is expressed as a maximum – judges can deviate from the guidance in particular cases. Special considerations apply to murder cases.

The object of the proposed reforms is to try to ensure that more cases are dealt with by guilty plea, thereby reducing the resources required for trials.

The final guidance will be published following completion of the consultation, which runs until the middle of May 2016.

For further details see https://www.sentencingcouncil.org.uk/consultations/reduction-in-sentence-for-a-guilty-plea-guideline-consultation/

Written by lwtmp

February 18, 2016 at 6:58 pm

More criminal trials to be heard in the magistrates’ court

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Early in 2016, there was an announcement that more criminal cases would be dealt with in the magistrates’ courts, rather than being sent to the Crown Court.

The source for this announcement was not a new piece of legislation, redrawing the boundaries between cases heard in these two courts. Rather, it was the announcement that, from 1 March 2016, the Sentencing Council was issuing ‘definitive guidance’ on how cases triable either way – i.e. summarily (in the Magistrates’ Court) or on indictment (in the Crown Court) were to be allocated.

One of the key recommendations of the Leveson Review of Efficiency in Criminal Proceedings was

“Magistrates’ Courts must be encouraged to be far more robust in their application of the allocation guideline which mandates [emphasis added] that either way offences should be tried summarily unless it is likely that the court’ssentencing powers will be insufficient. The word “likely” does not mean “possible” and permits the court to take account of potential mitigation and guilty plea, so can encompass cases where the discount for a guilty plea is the feature that brings the case into the Magistrates’ jurisdiction. It is important to underline that,provided the option to commit for sentence is publicly identified, the decision to retain jurisdiction does not
fetter discretion to commit for sentence even after requesting a pre-sentence report”.
The Sentencing Council consulted on a change to their guidance on allocation and have provided new guidance which comes into effect on 1 March 2016.
The guidance states:
1. In general, either way offences should be tried summarily unless:
• the outcome would clearly be a sentence in excess of the court’s powers for the offence(s) concerned after taking into account personal mitigation and any potential reduction for a guilty plea; or
• for reasons of unusual legal, procedural or factual complexity, the case should be tried in the Crown Court. This exception may apply in cases where a very substantial fine is the likely sentence.
Other circumstances where this exception will apply are likely to be rare and case specific; the court will rely on the submissions of the parties to identify relevant cases.
2. In cases with no factual or legal complications the court should bear in mind its power to commit for sentence after a trial and may retain jurisdiction notwithstanding that the likely sentence might exceed its powers.
3. Cases may be tried summarily even where the defendant is subject to a Crown Court Suspended Sentence Order or Community Order.
4. All parties should be asked by the court to make representations as to whether the case is suitable for summary trial. The court should refer to definitive guidelines (if any) to assess the likely sentence for the offence in the light of the facts alleged by the prosecution case, taking into account all aspects of the case including those advanced by the defence, including any personal mitigation to which the defence wish to refer.
Where the court decides that the case is suitable to be dealt with in the magistrates’ court, it must warn the defendant that all sentencing options remain open and, if the defendant consents to summary trial and is convicted by the court or pleads guilty, the defendant may be committed to the Crown Court for sentence.
It is estimated that a significant number of cases will in future be retained in magistrates’ courts as a result of this guidance.
The Sentencing Council makes bold claims for the new guideline, stating:
The guideline aims to bring about a change in culture and will inevitably provide some challenges, but the Council is confident from the responses to the consultation that the guideline will be welcomed by sentencers and will play a role in ensuring that justice is delivered fairly, swiftly and efficiently in more cases.
The press notice is at http://www.sentencingcouncil.org.uk/news/item/sentencing-council-issues-definitive-allocation-guideline/
The link to the guideline is at http://www.sentencingcouncil.org.uk/publications/item/allocation-guideline-revised/

Written by lwtmp

January 21, 2016 at 6:40 pm

Increasing sentencing powers of magistrates

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In the Legal Aid, Sentencing and Punishment of Offenders Act, 2012, provision was made (section 85) to give magistrates greater flexibility in the fines that they may impose. Offences are divided into 5 levels – the least serious are level 1 offences, the most serious level 5. Up to now, the maximum fine for level 5 offences has generally been £5000 (although there are special circumstances where the maximum is set at a higher level). Regulations have now been made and brought into force (15 March 2015) whereby, for offences which attract a level 5 sentence, magistrates now have power to impose fines without any cap being imposed.

This will mean that in cases where magistrates want to impose higher fines for level 5 offences, they will no longer have to send cases to the Crown Court for sentence.

Magistrates who want to impose a prison sentence of more than 6 months still have to commit such cases to the Crown Court for sentencing.

The fact that magistrates in future will have increased sentencing powers will not mean that they will automatically be increasing their sentences; indeed this is likely to happen in only a small number of the most serious cases.

The Sentencing Council gives detailed guidance on the appropriate amount of fines to be imposed within each level . These relate both to the seriousness of the offence and the means available to the defendant. See

http://www.sentencingcouncil.org.uk/wp-content/uploads/MCSG_web_-_October_2014.pdf
For Ministerial statement see https://www.gov.uk/government/news/unlimited-fines-for-serious-offences

Written by lwtmp

May 4, 2015 at 11:09 am