Stringing a Sentence Together: How a Defendant is Punished in Practice
In the space of a week, Paul Mitchell went from being an ordinary football spectator to Birmingham City’s most notorious fan. He invaded the pitch on Sunday, landing a blow to the back of the head of Aston Villa player Jack Grealish. His actions have brought him a prison sentence of 14 weeks- but where will that figure have come from?
What needs to be considered when addressing a possible sentence?
Though we can never guarantee an outcome, some of the factors we take into account when advising on sentence include:-
1. Is there a Sentencing Guideline?
Sentencing is not an exact science, but the assistance offered by the Guidelines is significant. They are issued by the Sentencing Guidelines Council, which is part of the Ministry of Justice (albeit independent and non-departmental.)
There are guidelines which relate to specific offences, and ‘overarching’ guidelines (e.g. in relation to guilty pleas) which have more general applicability across all offences.
The Coroners and Justice Act 2009 stipulates that a court must follow any relevant guideline if the offence was committed after 6 April 2010. For offences before that date, they must still have regard to it.
Every Guideline will consider:
- The harm caused;
- The culpability of the offender (in other words, the level of blame.)
The Guidelines may also specify aggravating factors (things which make the case worse, such as relevant previous convictions) and mitigating factors (e.g. the defendant’s personal circumstances or lack of premeditation.)
2. Are there any relevant cases?
Looking at similar cases which have come before the courts can help to be more precise as to an expected sentence.
Both the Defence and Prosecution in a matter will often refer the court to previous important cases to supplement their arguments and persuade it to pass a particular sentence.
A key reason for receiving expert legal advice is that you will receive the benefit of your solicitor’s (and barrister’s, if applicable) experience of other cases. This can often prove invaluable in terms of advice as to sentence.
That said, each case is approached on an individual basis and the sentence handed down in one case may not be appropriate in another, no matter how similar they appear to be at first. In the words of the renowned Secret Barrister: context is everything.
3. Are there any other matters to consider?
Often, the court will order a Pre-Sentence Report. This is prepared by the Probation Service, either on the day of sentence or a little while in advance.
The Report will look at a person’s individual circumstances, their attitude to the offence and what level of risk they pose going forward. Whilst it will usually recommend a particular sentence, the Court is not bound by any recommendations made.
4. Will there be any discount in relation to a Guilty plea?
The maximum reduction in sentence for a Guilty plea is one third. To secure this level of discount, the plea needs to be entered at the earliest opportunity (so usually the First Appearance in the Magistrates’ Court.)
After that, a sliding scale operates- after the beginning stage, the maximum reduction is one quarter. If the plea is entered on the first day of a trial, the reduction will be not more than one tenth.
So why did Mr Mitchell get sent to prison?
Mr Mitchell was prosecuted in relation to two offences. The most important for him was that of Battery, contrary to section 39 of the Criminal Justice Act 1988. He was also charged with a further offence as a result of him encroaching onto the pitch. The Football (Offences) Act 1991, section 4, allows a person to be punished if they go onto the playing area. The maximum sentence for that offence is a Fine.
Clearly, the most significant contributor to Mr Mitchell's sentence was his conviction for Battery. In deciding the case, the Magistrates deciding Mr Mitchell's case were required to apply the Sentencing Guideline in relation to Assault.
It appears that the Magistrates placed Mr Mitchell’s case in Category 1 of the Guidelines. For it to have been classified this way, they must have felt that the greater harm and higher culpability categories both applied. We simply don’t know, which leads to the ‘What should happen in the future?’ point at the conclusion of this article.
Tempting as it might be for Mr Mitchell to feel he was made an example of because his victim was a footballer, that’s simply not the case. We should not overlook the fact that we don’t have the exact reasons for the decision, but one thing is clear: the Magistrates believed the case to be sufficiently serious that only a prison sentence would do.
What should happen in the future?
Calls for a copy of a court’s sentencing remarks to be issued as a matter of course are not unwarranted; more information would help to demystify the process and ought to help correct some of the most common misunderstandings. We currently see this only happening in the most serious cases taking place in the most senior courts, but cases which are dealt with by Magistrates can often be of particular public interest, as with Mr Mitchell.
This would rely on the media to report the sentencing remarks accurately, avoiding the temptation to quote the most salacious elements out of context. In fairness, Court reporters are not always available to attend hearings and even if they are, a copy of the sentencing remarks should help to ensure clarity and precision.
The Sentencing Guidelines Council recently launched a consultation on expanding the explanations given in the Guidelines. Perhaps the issuing of sentencing remarks as a matter of course should also be given the consideration it so clearly merits.
The above article is a general overview of the principles, but it does not of course act as a substitute for expert advice about a particular case.« Go backContact us »