By Anthony Edwards, TV Edwards, London


Sentencing guidelines

The Sentencing Guidelines Council is now publishing a series of definitive guidelines. Central to all of these is a formal decision-making process into which all courts should enter:



- Identify the appropriate starting point. Identify the description that most nearly matches the particular facts of the offence for which sentence is being imposed;



- Consider relevant aggravating factors, both general and those specific to the type of offence. This may result in a sentence level being identified that is higher than the suggested starting point, sometimes substantially so;



- Consider mitigating factors and personal mitigation. There may be offence or offender mitigation which could result in a sentence that is lower than the suggested starting point (possibly substantially so), or a sentence of a different type;



- Reduction for guilty plea. Apply any reduction for a guilty plea following the approach set out in the council's guideline 'Reduction in Sentence for a Guilty Plea' (revised July 2007);



- The totality principle. Review the total sentence to ensure it is proportionate to offending behaviour and properly balanced;



- Reasons. When a court moves from the suggested starting points and sentencing ranges identified in the guidelines, it should explain its reasons.



On 10 December 2007, a new definitive sentencing guideline for those who fail to surrender to bail was published (see table below).



However, this table is very much a summary, and not only is it necessary to consider the factors to be take into consideration which are set out immediately before the table, but to have regard to other aspects of the guideline. In each case the court must consider both aspects of seriousness - culpability and harm, but the council has paid particular regard to the issuing of culpability as determining the starting point for sentence.



It must be remembered that the starting points are intended to apply to a person who has no relevant previous convictions, and has been convicted after a trial. In relation to Bail Act offences, convictions that do not relate to breach of court orders do not fall within these categories, and a guilty plea discount may affect the nature as well as the length of a sentence. Once the starting point has been identified, aggravating and mitigating factors are applied to see where within the range a sentence should fall. It should be noted that, where the failure to surrender custody was deliberate, a sentence at or near the bottom of the range will be appropriate where the defendant gave no thought at all to the consequences, or other mitigating factors are present and the degree of delay or interference with the progress of the case was not significant in all the circumstances. Cases will be at or near the top of the range where any of the aggravating factors listed in the table are present if there is also a significant delay and/or interference with the progress of the case.



The fact that the offender has a disorganised or chaotic lifestyle caused, for instance, by drink or drugs, should not normally be treated as mitigation of the offence, although it may be regarded as personal mitigation. Once the provisional sentence has been identified, personal mitigating factors must be applied - in Bail Act cases these will include a number of factors that could, had the burden of proof been on the Crown, have amounted to a defence. The guilty plea discount is then applied. It should be noted that a sentence for failing to appear will normally be consecutive to that for the underlying offence. However, an acquittal for the underlying offence does not mean there can be no penalty for failing to appear.



The guideline makes clear that, in most circumstances, a failure to surrender at the police station will result in less harm than a failure to appear at court. It acknowledges that the circumstances in which bail is granted at the police station are less formal than in court, and the history of an individual case should always be examined. There may be less culpability where the bail has been enlarged on a number of occasions. Similarly, in most circumstances an offence under section 6(2) of the Bail Act will be less serious than an offence under section 6(1).



The guideline also inter-relates with the Criminal Procedure Rules and the Consolidated Practice Direction when indicating how Bail Act offences should be handled. Liability should normally be established as soon as possible. However, a larger number of factors affect the decision whether to sentence at that stage; it will depend on the individual circumstances of the case. The key to this decision will be whether the substantive case is to be adjourned and whether any remand is to be on bail or in custody.



The harm caused by a failure to appear will be significantly reduced if the trial proceeds in the absence of the defendant or, having failed to appear, the defendant pleads guilty to the original offence thus obviating the need for a trial.



A curfew requirement is identified as particularly appropriate where a community order is the appropriate sentence.





Dangerous offenders

The council has also published guidance (but not as a guideline) on the sentencing of dangerous offenders. It is now available to every Crown Court judge who deals with such matters.



However, it will also have relevance in the magistrates' courts when decisions are being made in the youth court whether to accept jurisdiction and in the adult court whether to commit for sentence. It contains a full list of specified offences and serious specified offences.



The critical issues are as follows:



- Has the offender been convicted of a specified or serious specified offence committed on or after 4 April 2005? If so, the court must go on to consider two questions:



i. If there is significant risk that the defendant will commit a further specified offence; and



ii. If so, is there a significant risk that the further specified offence will cause serious harm to a member of the public?



If there is a positive answer to each of those questions, obligatory sentencing applies.



- For adults and youths, if a specified offence is committed the sentence must be an extended sentence with a minimum 12 months' immediate custody.



- If it is a serious specified offence, for an adult the sentence must either be one of life imprisonment or imprisonment for public protection.



- If the defendant is a youth and the offence is a serious specified offence, the court must first consider whether it is appropriate to impose an extended sentence. However, in R v Momoh [2007] 1 CR App R(s) 617 the court held that an extended sentence would not be adequate to protect the public if the Parole Board could not carry out an assessment as to dangerousness before the end of the fixed custodial term. If an extended sentence is not appropriate, the court must consider life or detention for public protection.



The guidance contains all the up-to-date case law, but it should be noted that in R v Watty [2007] 2 CR App R(s) 280 the court doubted whether Parliament can have intended that indeterminate sentences should be used where only a short minimum sentence would otherwise be imposed and, in this case, they considered such a situation to exist where a 12-month determinate sentence was appropriate (a minimum term of six months).



Once a client has been convicted of a specified or serious specified offence, the court, in making the other decisions required as to significant risk, may take into account any 'information' which is before it about any pattern of behaviour of which the offences form part.



In R v Constantine and R v Davis [2007] Crim LR 824, the court held that this included admissions made to a probation officer about matters that had not been charged or even subject to previous complaint. It is not restricted to evidence. In order to comply with the rule in R v Canavan and Others [1998] 1 Cr App R(s) 243 it excluded material about other alleged offences which had not been before a court and which were denied by the defendant. However, the court might consider information given during trial, often as character evidence, which the defendant had had an opportunity to challenge (R v Farrar [2007] Crim LR 308).







BAIL ACT 1976, sections 6(1) & 6(2)



Maximum Penalty: 12 months' imprisonment in the Crown Court; 3 months' imprisonment in a magistrates' court



The following starting points and sentencing ranges are for a first time offender aged 18 or over who pleaded not guilty:



Nature of failure & harm


Starting point Sentencing range Deliberate failure to attend causing delay and/or interference with the administration of justice.



The type and degree of harm actually caused will affect where in the range the case falls



See guidance in paragraphs 8-10 in section on factors to take into consideration

14 days' custody Crown Court

Community order (medium)

- 40 weeks' custody


Magistrates' courts

Community order (low)

-10 weeks' custody Negligent or non-deliberate failure to attend causing delay and/or interference with the administration of justice

Fine Fine - Community Order (medium Surrenders late on day but case proceeds as planned

Fine Fine

Additional aggravating factors


Additional mitigating factors 1. Lengthy absence



2. Serious attempts to evade justice



3. Determined attempt seriously to undermine the course of justice



4. Previous relevant convictions and/or repeated breach of court orders or police ball

1. Prompt voluntary surrender



When not amounting to a defence:



2. Misunderstanding



3. A failure to comprehend bail significance or requirements



4. Caring responsibilities