From Report to Court: Digital Guide

After a defendant is found guilty at trial, or after a defendant pleads guilty (see section on entering and accepting a pleas), he must be sentenced.

The court may sentence the offender right away or may decide to have a separate hearing, so that a pre-sentence report can be prepared. The pre-sentence report is prepared by the Probation Service. It will look at the offender’s background, previous convictions and mental health. They usually take at least a month to prepare.

The court may order that other reports be prepared, such as medical or psychiatric reports. These reports may take a lot longer to prepare.

The offender may be released on bail during this period, or he may be ‘remanded’ (kept in custody).

If he is released on bail, this means he can leave custody until the next court hearing. He or his lawyer will have to convince the court that he will return to court to be sentenced. In serious cases in the Crown Court, if the offender is likely to be sent to prison, he will probably be kept in custody while any reports are prepared.

Before deciding the sentence, the judge or magistrates will hear about the facts of the case from the prosecution.

If you have made a Victim Personal Statement this will be read or passed to the court.

The judge or magistrates will read any pre-sentence report or other reports.

The judge or magistrates will then hear ‘mitigation’. This means arguments which support a lower sentence being passed, made by the offender or his lawyer. There may also be written character references or character witnesses.

Types of sentences

There are a number of options open to the court when sentencing an offender. The aim of the sentence is to punish the offender and protect the public, but also to try to rehabilitate the offender and stop them from reoffending.

For less serious offences, a court may sentence an offender to a fine or a community order, which may include them being placed on a curfew, having to do unpaid work for the community, or being given a drug rehabilitation order to help the offender address addiction issues.

Where an offence is so serious that only a custodial sentence is appropriate, the court will send the offender to prison, unless they choose to suspend the sentence (see below). There are three types of custodial sentence that can be passed.

Determinate sentence

A determinate prison sentence is one that has a fixed end date.

Offenders who receive a determinate sentence will usually be released from prison after serving half of the sentence (so if the offender received a sentence of 5 years imprisonment, he would be released after 2 ½ years).

The offender will then spend the remaining period (2 ½ years) on licence. During this time they will be supervised by the Probation Service and may be required to comply with specific licence conditions, such as not going to a particular area.

Failure to comply with the conditions, or reoffending may result in the offender being sent back to prison to serve the rest of his sentence.

If the offender received a sentence of under 2 years, they will still be released half way through the sentence, but will also be given 12 months supervision. For example, if the offender received a sentence of 18 months, they will be released at 9 months, but will still be supervised for 12 months.

Extended sentence

An extended sentence is one in which there is both a prison sentence and an extended period of supervision on licence after release from prison.

Such a sentence may be passed when the offender is assessed as being of significant risk to the public because he might commit further offences.

When passing this sort of sentence, the judge will decide the length of time that the offender should spend in prison (custodial term) and the additional length of time that the offender should be on licence (extended licence period).

The offender will usually be released from prison after serving two thirds of the custodial term, but may have to apply to the Parole Board to be released. He will spend the remaining one third of the custodial term plus the extended licence period under the supervision of the Probation Service.

For example: if the judge passes an extended sentence with a 6 year custodial term and a 4-year extended licence period, the offender will remain in prison for 4 years (two thirds of 6 years) and will then spend 2 years (one third of 6 years) plus 4 years on licence.

He may be returned to prison if he reoffends or breaches any conditions attached to the licence in that time.

A life sentence

A life sentence is passed when an offence is particularly serious.

Only in very rare cases does a life sentence mean that the offender will spend the rest of his life in prison.

In most cases the judge will set a minimum term, which is the minimum number of years that an offender has to spend in prison before he can be considered for release.

When the offender has spent the minimum term in prison, he can apply to the Parole Board to be released. He may not be released immediately or even for a number of years beyond the minimum term if the Parole Board does not think he is safe for release.

Once released the offender is on licence for the rest of his life and may be subject to conditions for some of that time. Any breach of those conditions or reoffending could see him returned to prison until (and only if) he is considered safe for release again.

Where an offender is aged 10 – 18 a life sentence will be called detention for life. For offenders between 18 – 21 years old the sentence is called custody for life.

Suspended sentence

In some circumstances the court can choose to suspend a determinate prison sentence for a specific period of time.

This means that the offender does not go to prison immediately. If the offender does not reoffend during that period of time and complies with any conditions attached to this suspended sentence order he will not go to prison at all. However, if he reoffends or breaches any of the conditions, the suspended sentence may be ‘activated’ and he can be sent to prison.

Similarly, if an offender is given a community order and fails to comply with this, the court may revoke (withdraw) that sentence and re-sentence the offender to a harsher sentence.

Maximum sentences

In the magistrates’ court the maximum prison sentence an offender can receive is 6 months for one offence or 12 months for two or more offences.

In the Crown Court the maximum prison sentence that can be passed is determined by the offence itself. See Maximum sentences are reserved for the most serious types of each offence. The maximum sentences for some of the offences have been set out below:

• Rape – Life imprisonment
• Assault by penetration – Life imprisonment
• Sexual assault – 10 years imprisonment (if the case is heard in the Crown Court)
• Causing someone to engage in sexual activity – 10 years imprisonment (if the case is heard in the Crown Court)

Sentencing guidelines

When deciding sentence the judge or magistrates will look at whether there are any sentencing guidelines, which are produced by the Sentencing Guidelines Council (SGC). There are specific guidelines for sentencing sexual offences. The court must follow these guidelines unless it would be contrary to the interests of justice to do so. You can read more about the sentencing guidelines below.

The decision

The judge will reach a decision on the appropriate sentence and will explain this to the offender giving reasons for the sentence. Any time that the offender has spent in prison before he is sentenced will be taken off the prison sentence he will serve.

Where the offence being sentenced is a historic offence, the offender will be sentenced under the law as it was at the time of the offence. This means that the sentencing judge will bound by the maximum sentence that existed at the time of the offence. However, the sentence passed should reflect the attitude of the courts as it is today, rather than how it may have been at the time of the offence.

When deciding sentence the judge or magistrates will look at whether there are any sentencing guidelines, which are produced by the Sentencing Guidelines Council (SGC). There are specific guidelines for sentencing sexual offences. The court must follow these guidelines unless it would be contrary to the interests of justice to do so.

You can look up the guidelines that apply to the offence your abuser committed on the SGC website. There are two sets of guidelines – one for the magistrates’ court and one for the Crown Court.

The guidelines require the court to place the offence within categories: in terms of the harm caused by the offence, and the culpability (blameworthiness) of the offender.

Guidance is then provided as to the point that the judge should start at when considering sentence, and the range within which the sentence should fall.

Aggravating and mitigating features

After the magistrate’ or judge have decided the appropriate starting point they will consider all that has been heard from the prosecution and defence and will also consider any aggravating and mitigating features.

Aggravating features are things that make the crime worse and attract a more severe sentence. These may include:

• Using force or a weapon
• Exploiting a position of trust or authority
• Targeting someone who is particularly vulnerable, such as someone who is young, elderly or disabled
• Having previous criminal convictions
• Whether the offence was planned
• Whether this offence was part of a pattern of offences
• The location and timing of the offence, and presence of others

Mitigating features are those that reduce the seriousness of the offence. These may include:

• Genuine remorse
• Any relevant physical or mental health problems such as mental illness or a serious illness

The judge will also take into account whether the offender has pleaded guilty and will give him credit for this by reducing the length or severity of the sentence.

While in prison, the offender will be asked if he wishes to undertake any offending behaviour work or courses. These programmes are designed to address why the person might have offended and what can be done to prevent any further offending.

If an offender does not complete these courses in prison, he may be asked to complete them as one of his conditions whilst on licence.

Specific courses are available for those who have committed acts of domestic violence, such as the Community Domestic Violence Programme, the Healthy Relationships Programme and the Integrated Domestic Abuse Programme.

These programmes are designed to encourage offenders to look at why they have committed domestic abuse offences, to develop new thinking and behavioural skills, and to understand more about the harm their behaviour has caused.

There are also programmes for offenders whose behaviour is linked to sex offending and drug and alcohol issues.

As a victim you are entitled to protection from unwanted contact from a prisoner.

Prisoners are not allowed mobile phones and are allowed access to the internet only for educational purposes, employment and resettlement activities. They are not permitted to use social networking sites.

If you receive unwanted contact from a prisoner in any form, you can speak to your Victim Liaison Officer (VLO) if you have one, or report this by calling Her Majesty’s Prison and Probation Service Victim Helpline on 0300 060 6699, or email them at [email protected].

If you receive unwanted contact from an offender who is on licence in the community, you can contact the National Probation Service, the police, or your VLO if you have one.

If the offender is under 18 and being supervised by a Youth Offending Team, you can contact that Youth Offending Team to report any unwanted contact.

When the offender will be released from prison will depend on the type of sentence he received.

In some cases an offender will be released automatically but in others he will need to persuade the Parole Board that it is safe for him to be released.

For more information on the types of sentences see the section above on sentencing. For further information about the Parole Board see here.

If the offender is sentenced to imprisonment for 12 months or more

In cases where the offender is sentenced to 12 months imprisonment or more for a sexual or violent offence, Her Majesty’s Prison and Probation Service should contact you. If you want them to they should:

• Give you information about key stages in his sentence, such as whether he is applying for release
• Give you the opportunity to express your views about what licence conditions or supervision requirements should be placed on him when he is released (such as not to contact you or come to a particular area)
• Tell you what conditions or supervision requirements he will be subject to if they relate to you or your family.

Further information about the National Offender Management Service is available here.

Further information for victims about parole and release is available here.

The Parole Board is an independent body that decides whether someone serving a prison sentence can be safely released into the community.

In cases where the Parole Board is considering an offender’s release from prison, they may consider any Victim Personal Statement that you have made. You may be asked if you want to make a further Victim Personal Statement. You will be able to tell the Parole Board about the impact that release of the offender or a change in his custodial conditions might have on you. If you wish, and at the discretion of the Parole Board, you may be able to appear in person to read your Victim Personal Statement.

The Parole Board’s role is to decide whether someone is safe to be released. They will consider the behaviour of the offender whilst in prison, what they plan to do when released and whether they are likely to commit further offences or be a danger to the public. If the offender has not completed any offending behaviour work, it will be very difficult for them to convince the Parole Board to release them. Further information about the Parole Board can be found here.

Challenging the decision of the parole board

Although fairly unusual, it is possible to successfully challenge a decision by the Parole Board to release a prisoner. If you wish to challenge the decision to release a prisoner you will need to obtain urgent legal advice. You can contact our advice line for more information.

The details of people who have been convicted of sexual offences are placed on the Sex Offender Register. This is to enable the police (not members of the public) to know who is a sex offender and to have information about him such as where he lives and whether he intends to travel outside the UK. Failure to notify the police of such details, without reasonable excuse, is an offence. The length of time that the offender remains on the Register depends on the sentence that he received.

The offender may also be given a Sexual Harm Prevention Order (SHPO) which is an order that forbids him from doing certain things specified in the order, such as going to particular places. The order can be for a fixed term or indefinite but must have a minimum term of five years. An offender or the police can apply for the SHPO to be varied (changed) or discharged (removed).

This section explains appeals against conviction (when the defendant challenges the guilty verdict) and appeals against sentencing (when a sentencing decision is challenged for being either too harsh by the offender or too lenient by the prosecution).

Appeals against conviction

If a defendant is found to be guilty he may decide to appeal his conviction. This means asking a higher court to look at the decision again. A defendant’s right to appeal against his conviction depends on which court he was tried in.

If the defendant is convicted in a magistrates court

A defendant who pleaded not guilty and was convicted in a magistrates’ court has an automatic right of appeal to the Crown Court. If he appeals to the Crown Court, there will be a fresh trial (where you might be asked to give evidence again) before a judge and two magistrates (not a jury).

If a defendant wants to appeal against his conviction, a notice of appeal should be lodged at the magistrates’ court within 21 days of his being sentenced (even if the appeal is only against conviction). In some circumstances this time limit can be extended.

The Victim’s Code says that you are entitled to be informed of the following information by your Witness Care Unit within 1 working day of them receiving it from the court:

• any notice of appeal that has been made
• the date, time and location of any hearing
• the outcome of that appeal, including any changes to the original sentence

If you are required to attend the appeal, you are also entitled to:

• wait and be seated in court in an area separate from the appellant and their family and friends (the court will ensure this is done wherever possible)
• be provided with a contact point at the Crown Court
• receive information about victim support services where appropriate and available.

If the defendant was convicted in the crown court

If the defendant was convicted in the Crown Court he may appeal to the Court of Appeal if the Court of Appeal gives its permission. He does not need to get permission if the Crown Court has granted a certificate to appeal, which is very rare and must be for a specific reason such as where a point of law is unclear.

An application for leave (permission) to appeal against conviction should be given to the Crown Court within 28 days of conviction, although this time limit may be extended by the Court of Appeal. If permission to appeal against a conviction is given, the Court of Appeal will examine the case to see whether the conviction is safe or not.

The Court of Appeal will not hear the same evidence that the jury heard and reach their own decision; instead they will hear legal arguments about whether something occurred at trial that meant that the defendant’s conviction is unsafe.

There are a number of things that can make a conviction unsafe including:

• faults in the judge’s summing up (comments made by the judge to the jury after they have heard all the evidence)
• new evidence coming to light which was not available at the time of trial
• mistakes in the legal advice that the defendant was given
• a failure to disclose certain information to the defence

If the Court of Appeal finds the verdict unsafe it will quash the conviction (set it aside).

If this happens the defendant is considered to be not guilty of the offence. Unless the court orders a retrial, the defendant will be treated as if he had been found not guilty by the jury and will be released.

A retrial will be ordered where the court considers it is in the interests of justice.

If a retrial is ordered, the defendant may be remanded into custody or released on bail. If he is retried and convicted again, he cannot be sentenced to a longer period of imprisonment than that passed by the first trial judge.

The Victims’ Code says that you are entitled to:

• be told that the appellant has been given leave to appeal within 1 working days of the Witness Care Unit receiving that information from the court
• receive information about the date, time and location of any hearing from the Witness Care Unit within 1 working day of them receiving the information from the court
• be told by the Witness Care Unit if the appellant is to be released on bail pre-appeal or if the bail conditions have varied within 1 working day of them receiving this information from the court
• receive an update from the Witness Care Unit on any changes to hearing dates within 1 working day of receiving this information from the court
• be provided, by your Witness Care Unit, with a contact point for the Criminal Appeal Office or UK Supreme Court staff
• be told about the result of the appeal within 1 working day of the Witness Care Unit receiving that information from the court (this includes any changes to the original sentence)
• wait and be seated in court in an area separate from the appellant (if he attends) and their family and friends
• request a copy from the Criminal Appeal Office or UK Supreme Court staff of the court’s judgment in the case once it has been published

Appeals against sentence

If the defendant was sentenced in the magistrates’ court, he can appeal to a Crown Court judge to have his sentence reconsidered.

If he was sentenced in the Crown Court, he can seek permission to appeal against his sentence to the Court of Appeal.

A sentence may be appealed if it is unjustifiably long or if the judge took irrelevant factors into account when passing sentence.

If a defendant is successful in his appeal the court can replace his sentence with a new one.

Criminal cases review commission

In some cases, a defendant may apply to the Criminal Cases Review Commission, who will undertake a review of his conviction or sentence. If they think there are grounds for appeal they will refer the conviction or sentence to the Court of Appeal. They will usually only review a case following an unsuccessful appeal to the Court of Appeal.

Unduly lenient sentences

If the judge passes a sentence which the prosecution considers is unduly lenient (not severe enough) and does not reflect the seriousness of the offence, the CPS will ask the Attorney General to review the sentence. The Attorney General is the head of the CPS.

If the prosecution does not think that the sentence is unduly lenient but you disagree, you can ask the Attorney General to consider it yourself. This has to be done within 28 days of the sentencing decision.

If the CPS decides not to send the case to the Attorney General then they must notify you without delay. This will give you the chance to complain directly and urgently to the Attorney General, and give the Attorney General sufficient time, if a complaint is made, to consider the case.

If the Attorney General thinks that the sentence is unduly lenient, they can refer the case to the Court of Appeal. The application to the Court of Appeal must be made within 28 days of the sentence. The defendant and his lawyer may appear at the Court of Appeal to argue that the sentence was not unduly lenient.

The Court of Appeal decides whether or not the sentence is unduly lenient and, if it is, whether to increase the sentence.

For further information about unduly lenient sentences is available here.