Professional Ethics pre-reading (to include student materials for the 1st small group session)
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- Bu səhifədəki naviqasiya:
- B. WHY START WITH SENTENCING
- C. PROCEDURE BEFORE SENTENCE AND PASSING SENTENCE
- 1. When will the court require a ‘report’
- 2. The sentencing hearing
- 3. How the court decides on what factual basis to pass sentence
SENTENCING HANDOUT 
A. INTRODUCTION Procedural Background Before you consider the subject of sentencing you need to be familiar with some basic concepts of criminal procedure. A person can be tried for a criminal offence in one of two courts – the Crown Court or the magistrates’ court. The magistrates’ court is sub-divided into the adult magistrates’ court and the youth court, though the phrase ‘magistrates’ court’, used without qualification, always refers to the adult court. Only people under 18 can be dealt with in the youth court. Adults (18+) make their first appearance in a criminal case, however serious, in the magistrates’ court. Where the case is ultimately dealt with depends in part on the category into which the offences charged fall. There are three categories:
If an adult appears in the magistrates’ court charged with an indictable-only offence he will be sent to the Crown Court to be dealt with there. If he only faces one or more summary offences he will be dealt with in the magistrates’ court. If the most serious offence he faces is an either-way offence then he could be dealt with in either court: if the magistrates take the view that the case is too serious for them to deal with (because their sentencing powers are limited) they will send him to the Crown Court; but even if they agree to deal with it, he can still choose to be tried in the Crown Court by a jury. Juveniles (aged 10-17) generally make their first appearance in the youth court. If they do, they will be dealt with in that court unless the magistrates take the view that the case is too grave for them to deal with (and it would have to be very grave for them to take that view). If they do, then the case is sent to the Crown Court. Juveniles only make their first appearance in the adult magistrates’ court if they are jointly charged with an adult or the charge they face is related to that faced by an adult. In those circumstances, if the juvenile and the adult are pleading not guilty, the juvenile will most frequently end up being tried alongside the adult, wherever the adult is required or chooses to be tried. If the juvenile is convicted in the adult magistrates’ court, he will frequently be sent to the youth court to be sentenced, as the adult magistrates’ court has very limited powers when it comes to sentencing juveniles (see section K below). If he is convicted in the Crown Court, the Crown Court judge will usually sentence him, as the Crown Court Judge can pass any sentence a youth court can pass. References In this handout the following abbreviations are used:
B. WHY START WITH SENTENCING? Even though sentencing is something that happens at the end of the process, when you are defending in a criminal case you need to consider from the moment you pick up the brief what sentence your client is looking at if convicted. There are a number of reasons for this:
That might be the day after his arrest when you go to see him in the cells in the magistrates’ court. Or it might be in conference in chambers after he’s been sent to the Crown Court for trial. Whenever it is, you must be ready with an answer. You will look foolish and unprofessional if you don’t have one. Never see a client without being ready to advise on sentence.
At the start of the criminal process you will often be required to make a bail application on behalf of the client. The fact that he is unlikely to go inside if convicted will always be a powerful, and often a conclusive, argument for the grant of bail prior to the trial. The fact that he will go inside for a long time if convicted may be a powerful argument for a prosecutor to say he won’t turn up if given bail.
As you’ve seen, in relation to either-way offences the magistrates have a choice as to whether or not they should agree to deal with a defendant’s case. If they don’t agree, then they’ll send him to the Crown Court to be dealt with. It will depend on how serious the offence is (is it theft of a hundred pounds or of a hundred thousand pounds?). In deciding whether they should deal with the matter they have to decide whether their limited sentencing powers are sufficient for this particular case. If you are going to argue that they are, you need to know the sort of sentence the offence might attract.
He will want to know – a discount on what? Of course you will never be able to give a definitive answer as to what sentence the client will receive. But you should be able to hit the right ball-park. C. PROCEDURE BEFORE SENTENCE AND PASSING SENTENCE Imagine that the defendant you are prosecuting or defending has been convicted of or pleaded guilty to one or more criminal charges, and that the court (whichever one he’s in) has now to consider what sentence to pass. The procedure governing the sentencing process varies slightly between those cases where the court requires ‘reports’ and cases where it doesn’t. Sometimes before passing sentence a court will wish to read a report prepared on the offender by a probation officer. Or it may wish to have the benefit of other reports, for example by a psychiatrist. 1. When will the court require a ‘report’? No report(s) required If the case is very straightforward the court will often sentence immediately after the plea of guilty or the announcement of the verdict: a court sentencing for careless driving doesn’t need to order a report from a probation officer or a psychiatrist before fining the defendant and endorsing his licence; or if an adult defendant is convicted of stealing thousands of pounds from an elderly and vulnerable victim, the court may well decide to send him to prison straight away. It will do so if it takes the view that it knows enough about him to know that a report from the probation service is not going to affect the sentence. Report(s) required In less straightforward cases the court will often want to read a pre-sentence report or ‘PSR’ (that is a report prepared by a probation officer or an equivalent officer in the case of certain juveniles), perhaps to try and get to the bottom of the defendant’s offending with a view to exploring more imaginative interventions than custody. Or the court may require a psychiatric report or some other report to assist in passing the right sentence. As we shall see in a moment, there are some circumstances in which a court cannot pass sentence without one or more reports. However, even if not required to do so the court always has discretion to order any such report to be prepared in appropriate cases. Where the court decides to order a report it will generally have to adjourn the case for the report to be prepared – in the case of a PSR, usually for 3 weeks. Occasionally a report will have already been prepared by the date of sentence, and so no adjournment is required. In the case of PSRs, that will only happen in cases where the officer preparing the report has been told in advance that the defendant will be pleading guilty and the court is likely to need one. Sometimes as defence counsel you will want the court to order a PSR or some other report and the court may be reluctant to do so - usually because it takes the view that there is no alternative to an immediate custodial sentence, so why waste time? It is your job then to persuade the court that it would not be a waste of time as a report may significantly affect the type or severity of the sentence. Finally, where the court either decides, is persuaded or is required to order a PSR, the judge or magistrate will frequently say to the defendant immediately before adjourning the case that the fact that a report is being ordered does not necessarily mean that a non-custodial sentence will be passed and that “all options remain open”. This avoids the defendant getting his hopes up and subsequently appealing a custodial sentence on the basis that he was given a legitimate expectation that he wouldn’t be locked up. Where the court cannot sentence without a PSR In the following circumstances a court cannot pass sentence without a PSR (s.156 CJA):
Where the court cannot pass sentence without a medical report A court cannot pass sentence without a medical report dealing with the defendant’s psychiatric condition where it proposes to make any order requiring the offender to undergo psychiatric care or treatment. A court cannot pass a custodial sentence on someone who is apparently mentally disordered, unless in the circumstances it is unnecessary How does the procedure differ between cases where reports are required and cases where they are not? If, following the guilty plea or the conviction, the court agrees, or is persuaded by the defence, that reports are desirable it will generally adjourn without the prosecution ‘opening’ the case as described below. The case will then be opened fully at the adjourned hearing when the court is in a position to proceed to sentence. 2. The sentencing hearing (a) Prosecution opening First, the prosecution advocate will “open” the case for the prosecution. That means that the advocate will give the court the information it needs from the prosecution perspective to sentence the defendant. The prosecution opening will contain a number of elements: Summary of the facts of the offence(s) If the defendant has pleaded guilty the advocate will give the court (orally) a summary of the prosecution’s case based on the prosecution’s witness statements (if you look at the case summaries accompanying the sentencing conference – SGS1 - you will find examples of the type of material included in a prosecution opening). The advocate will be sure to include all of those features of the story which aggravate the offence (for example, that the victim was elderly and vulnerable), and it is proper to include evidence which clearly mitigates the offence (for example, the fact that D expressed immediate remorse). If the defendant pleaded not guilty but has been convicted after a trial it is not necessary for the prosecution to open the facts, provided that the magistrates or judge passing sentence presided over the trial. It will be the same magistrates or judge passing sentence if sentencing takes place immediately after the guilty verdict is announced (i.e. without adjourning for reports). However, if the case is adjourned for reports it may be a different bench passing sentence. This is rarely the case in the Crown Court, but frequently happens in magistrates’ courts. Impact on victim As well as a statement from the victim of the crime setting out what s/he can say about its commission, the police should also obtain a ‘victim personal statement’ (a VPS), dealing with the impact of the crime - physical, emotional, financial or other. The victim can express a preference as to whether to read aloud the statement him/herself as part of the sentencing hearing, or whether the prosecutor should read it aloud, or whether it should not be read aloud, but the court should simply be invited to take it into account. The court will follow the victim’s preference unless there is good reason not to. The court should not sentence on the basis of assumptions about the impact of the offending unsupported by evidence contained in a witness statement, unless clear inferences about that impact can be drawn. Generally speaking the court should not take into account the view of the victim or his relatives on the proper sentence. They are likely to be based on emotion rather than reason (see generally CPD VII F). Antecedents After dealing with the offence and its effects the advocate will turn to the defendant’s ‘antecedents’. The advocate will tell the court some of the relevant details about his background (importantly his age, address, employment, and whether he has been on bail or in custody pending sentence) and read out or summarise a list of his previous convictions if any (the prosecution will provide a list for the court). The court needs to know about the defendant’s previous convictions as it obliged by s.143 of the CJA to treat each previous conviction as an aggravating factor if it can reasonably be so treated. So for example, if someone is convicted of downloading child pornography a recent conviction for sexual assault will be an aggravating factor, whereas an old conviction for shoplifting won’t be. Sometimes a conviction on the list will be marked as ‘spent’. Under the Rehabilitation of Offenders Act 1974 an offender is entitled not to disclose an offence, or for it to be ignored, in certain circumstances after a period of time has elapsed (the period of time will depend on the sentence passed). So for example, in applying for certain jobs an offender doesn’t have to disclose a ‘spent’ conviction. However the Act specifically excludes criminal proceedings from the operation of the Act. The court is entitled to know about all convictions, spent or not. Despite this, criminal courts try to follow the spirit of the Act and a spent conviction should not be referred to if it can reasonably be avoided (which it usually can be). Sentencing powers and ancillary applications Prosecution counsel should maintain a neutral attitude to sentence. He is there to present, fairly and impartially, the prosecution’s case. He is a minister of justice who should not regard himself as appearing for one side or another. It is not counsel’s job to press for a particular sentence. The prosecutor can remind the court of its powers of sentence and of any sentencing guidelines (though s/he still rarely does in straightforward cases, as the judge is usually taken to know these matters). But counsel should be careful not to commend a particular sentence where the law gives the judge a discretion. However, the prosecutor can ask the judge to make orders which are considered ancillary to the actual sentence. So if the sentence is prison or a community order with an unpaid work requirement, ancillary orders would include orders for costs, compensation, confiscation, forfeiture and restitution. (b) Defence plea in mitigation After the prosecution has opened the case it is for the defence to enter a plea in mitigation, seeking to persuade the court, by reference to the facts of the offence and the character, circumstances and history of the offender, to pass the most lenient possible sentence. Representation The court cannot force someone to be represented and very often (particularly in non-serious cases) defendants represent themselves. However, if the court is considering passing a custodial sentence on a juvenile (i.e. under-18) then it must (i) inform D of his right to apply for free legal representation and (ii) give him the opportunity to make the application. In relation to an adult these two requirements only exist if he has not been sentenced to custody before (SA s.83) 3. How the court decides on what factual basis to pass sentence This important subject has been thoroughly reviewed in the case of R v Cairns [2013] EWCA Crim 467. As we have seen, in most cases the courts forms its view as to how the crime came about (a) where there has been a trial, by hearing the evidence, and (b) where there has been a plea of guilty, by listening to the prosecution’s oral summary of the facts at the start of the opening. However, it is frequently the position that the defendant has no defence to a particular charge (and therefore must plead guilty) but he disputes the prosecution’s version, or interpretation, of events. Or he offers an explanation for his offence which is not positively supported by the prosecution’s evidence. Take some examples:
In each of these cases the defendant has no defence to the charge (in the second case, possession of someone else’s drugs with intent to return them to the owner amounts to possession with intent to supply). But if the judge accepts the defendant’s version of events then it may make a substantial difference as to the sentence passed. How does the judge decide on what factual basis to pass sentence when there is a dispute between the prosecution and the defence? Reaching an agreed basis of plea Before the defendant enters his plea of guilty there will have been discussion between both sides as to the “basis of plea”. The defence will make representations to the prosecution as to why they should accept the defence version of events – pointing to weaknesses in the prosecution’s evidence on any disputed matter, and perhaps disclosing defence evidence for the prosecution to consider. Sometimes there may be a process akin to ‘bartering’ so that an agreed basis of plea is eventually reached (perhaps, in the first case above, two punches and minor and inadvertent provocation). But the prosecution should only seek to agree a basis which is true and not one that is merely convenient. If the defence put forward a basis of plea which is not contradicted by the prosecution’s evidence, that does not mean the prosecution have to accept it. The prosecution may choose to accept it if it seems reasonable. But if they are concerned that the defendant is simply trying to minimise his culpability with a cock and bull story (as in the third bullet point above) they can invite the judge not to accept that basis of plea unless the defence call evidence in support of it in a Newton hearing (see below). Where there is an agreed factual basis of plea that should be reduced to writing and signed by both counsel. Where such a basis is agreed the judge does not have to accept it. Say the prosecution accept the defendant’s version of events about the gun (the third case above). The judge may think that on the face of it that version of events is very dubious and that for him to sentence on that basis may involve the court in a sham exercise. He can override the agreement and direct a Newton hearing (see below). One final point here. The defence are usually keen to agree a basis of plea and to avoid a Newton hearing if at all possible. The reason for this is that, as you will see, defendants generally receive substantial credit for pleading guilty in the form of a discount on their sentence. If a Newton hearing takes place and the defence lose it, any credit for having pleaded guilty is likely to be substantially reduced. Where no basis of plea is reached Where the prosecution and defence cannot agree a factual basis then the defence must put in writing the defendant’s basis of plea and that document should clearly identify the factual disputes between the parties. The defence can then try to persuade the judge by oral representations to accept the defendant’s basis of plea. If it fails, then a Newton hearing is likely to follow. Newton hearings A Newton hearing (called after the case of that name) is a way for the court to resolve outstanding factual issues when a defendant has pleaded guilty. As we’ve just seen, they may be outstanding because the parties cannot reach agreement or because the court won’t accept the agreement reached. A Newton hearing is conducted in the Crown Court by a judge sitting alone (no jury). In the magistrates’ court the hearing is before the sentencing magistrates. The prosecution places before the court any evidence that is relevant to the issue to be decided, calling live any witnesses whose evidence is not agreed. Those witnesses are examined and cross-examined as in a trial. Then the defence can call what evidence it wishes to call in the same way. If the defence decline to call any evidence then the court can draw what inferences it deems appropriate from the failure to do so. In the second case, for example, if the defence declined to call the defendant to give evidence as to the ownership of the drugs, the court would probably conclude that the drugs were his. At the end of hearing the evidence the court will listen to representations from counsel and then announce its finding on each issue of fact. The court must apply the normal burden and standard of proof in a criminal case: it is for the prosecution to prove its version of the disputed fact beyond a reasonable doubt. Must the court always hold a Newton hearing where there are unresolved disputes as to fact? No. The court need not hold a Newton hearing to resolve disputed facts in the following situations:
But where the resolution of the dispute will affect the sentence, and the defence version of events is not absurd, then the court cannot resolve it in favour of the prosecution without holding a Newton hearing. There is one other way of avoiding a Newton hearing where there is a significant dispute as to the facts. Occasionally the allegation that the defence disputes amounts to a separate criminal offence which has not been separately charged. Say, for example, the defendant is charged on an indictment with one offence of robbery to which he has pleaded guilty. The prosecution say that he threatened the victim with a flick knife. He admits threatening her, but denies having a knife. This is going to make a difference to sentence. Here, rather than the judge holding a Newton hearing without a jury, the better course would be to add a count to the indictment alleging possession of an offensive weapon – an offence contrary to s.1 of the Prevention of Crime Act 1953. A jury could then be empanelled to try the issue of whether he had a knife. The factual basis of sentencing where the defendant pleads not guilty but is convicted Even where a defendant is convicted after a trial there may be room for argument about what exactly happened. If the defendant was convicted of assault, for example, there may have been differences between prosecution witnesses as to how often he struck the victim and whether a weapon was used. Where the magistrates tried the case they will have formed a view as to these facts and will proceed on their view. When a jury convicts the judge must proceed on a basis that is consistent with the verdict but on his own view of the facts: he is not entitled to ask the jury for their view on those specific matters. Yüklə 0,8 Mb. Dostları ilə paylaş:
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