•assessing the impact of guidelines on sentencing practice; and
•promoting awareness amongst the public regarding the realities of sentencing and publishing information regarding sentencing practice in the magistrates’ court and the Crown Court.
In constructing these guidelines, the Council is required, by s 120(11) of the CAJA 2009, to have regard to:
(a) the sentences imposed by courts in England and Wales for offences;
(b) the need to promote consistency in sentencing;
(c) the impact of sentencing decisions on victims of offences;
(d) the need to promote public confidence in the criminal justice system;
(e) the cost of different sentences and their relative effectiveness in preventing re-offending;
(f) the results of the monitoring carried out under section 128.
Further, by s 121 of the CAJA 2009, the Guidelines must be designed in such a way that they include the following information.
Table 1.8Structure of the Sentencing Council Guidelines
| Source | The Guidelines should … |
| s 121(2) | Describe the different categories of case involving the commission of the offence which illustrate in general terms the varying degrees of seriousness with which the offence may be committed. |
| s 121(4)(a) | Specify the range of sentences (‘the offence range’) which, in the opinion of the Council, it may be appropriate for a court to impose on an offender convicted of that offence. |
| s 121(5) | Specify the sentencing starting point in the offence range. |
| s 121(6)(a) | List any aggravating or mitigating factors which, by virtue of any enactment or other rule of law, the court is required to take into account when considering the seriousness of the offence and any other aggravating or mitigating factors which the Council considers are relevant to such a consideration. |
These guidelines, although ‘definitive’, are not absolute in that they allow for the discretion of judges. By s 125(1) of the CAJA 2009, every judge in sentencing an offender must follow any sentencing guidelines that are relevant to the offender’s case ‘unless the court is satisfied that it would be contrary to the interests of justice to do so’.
1.7.3.3 Sentencing powers
Sentencing, generally, can take one of two forms (or both):
•custodial; and
•non-custodial.
The sentencing powers of both the magistrates’ court and the Crown Court are detailed in Table 1.9. It should be noted that these powers are ultimately affected by a number of factors, including the statutory maximum for the offence, the court in which the offender is sentenced, the age of the defendant and the plea of the defendant.
Table 1.9Sentencing powers
| Sentencing power | magistrates’ court Crown Court | Crown Court |
| Custodial | •maximum 6 months (for a single summary offence); •maximum 6 months (for multiple summary offences); or •maximum 12 months (for multiple either-way offences). | No maximum except statutory maximum. |
| Non-custodial | Fine: Maximum £5,000 | Fine: Unlimited |
| Community order (maximum 3 years), for example: •unpaid work; •curfew requirement; and •electronic monitoring requirement. | ||
| Discharge: This is when the court decides that punishment would not be appropriate for this particular defendant. There are two types of discharge: (a) Absolute discharge – no further action is taken, although the offender will receive a criminal record. (b) Conditional discharge – no further action is taken, although the offender will receive a criminal record. Action may be taken where the individual commits a further offence within a period of time set by the court. | ||
1.8Nature of criminal liability
‘Actus non facit reum nisi mens sit rea.’
Interpreted by Lord Hailsham LC in Haughton v Smith [1975] AC 476 as meaning ‘[a]n act does not make a man guilty of a crime, unless his mind be also guilty’, this Latin maxim is the cornerstone of English criminal law.
Lord Hailsham LC went on to state that ‘It is thus not the actus which is reus but the man and his mind respectively.’ In basic form it means that in order for a defendant to be reus (Latin for ‘guilty’) of a criminal offence, they must complete an ‘act’ and also have the ‘intention’ to commit the act. Evil thoughts or bad intentions, therefore, are not sufficient to impose liability on an individual. They may, however, be used as evidence against him should he act on such thoughts.
The maxim does not tell the whole story though. There are certain offences where the need for a ‘guilty mind’ is unnecessary. These are generally known as ‘strict liability’ offences and often concern minor offences or offences that are regulatory in nature. We shall consider strict liability in greater detail in Chapter 3.
For the majority of crimes, there are three key elements that must be satisfied before a defendant can be liable for an offence. These are:
•actus reus;
•mens rea;
•no defence.
Figure 1.3 Elements of a criminal offence
Where a defendant is charged with a criminal offence and has pleaded not guilty, the prosecution is obligated to prove (beyond a reasonable doubt) that the defendant satisfied each element of the offence in question. This will involve proof of the actus reus, mens rea and a lack of defence. Failure to prove one of these elements (or a sub-element therein) will mean that the defendant is ‘not guilty’ or ‘not liable’ for the offence in question.
