Comparative Criminal Law and Enforcement: England and Wales

The aims of sentencing were set out in a 1990 Home Office report that preceded the Criminal Justice Act 1991. The law sought to provide a sentencing framework for those making sentencing decisions in the courts and those responsible for operating the penal system (the Probation Service, Prison Service, and Parole Board). The report stated:

The first objective for all sentences is the denunciation of and retribution for the crime. Depending on the offence and the offender, the sentence may also aim to achieve public protection, reparation and reform of the offender, preferably in the community. This approach points to sentencing policies which are more firmly based on the seriousness of the offence, and just deserts for the offender. (Home Office, 1990, p. 6)

Sentencing decisions for those convicted of a crime are made by the magistrates in magistrates' courts and the judge in the Crown Court. Decisions about individual cases are made with the help of voluntary guidelines in the case of magistrates and presentence reports provided by the Probation Service. The general sentencing framework is determined by the maximum sentences set out in statutes, a few mandatory sentences (such as life imprisonment for murder), and statutory criteria such as those related to the use of custody. A major influence on judges in the Crown Court are the decisions made by the Court of Appeal and particularly the Court of Appeal Sentencing Guideline Cases.

In England and Wales in recent decades the sentencing process has been reformed with the aim of reducing disparities, promoting consistency, and reassuring the public about the purpose of sentencing. But the reforms have not introduced the degree of constraint found in those parts of the United States where the courts are subject to sentencing guidelines (as in Minnesota) or determinate sentencing laws (as in California). The constraints on judges and magistrates in England and Wales are provided by statutory factors, the appeal process, judicial training, and the use of voluntary guidelines by magistrates.

Appeals against sentences are allowed, with appeals from the magistrates' court being heard in the Crown Court and the appeals against sentence in the Crown Court being heard by the Court of Appeal. Only the defendant has the general right of appeal, although in 1988 the Attorney General was given the right to appeal unduly lenient sentences for grave offenses that are triable only in the Crown Court.

The twentieth century has witnessed an increase in the range of available penalties; the abolition of corporal and capital punishment; and the introduction of a variety of community sentences. The death penalty was abolished for homicide in 1965. For adults convicted of murder the mandatory sentence is life, although this rarely means a person spends the rest of their life in prison. The average length served in prison on a life sentence before first release under license (parole) is fourteen years, but release is not automatic. A life sentence is indeterminate, not fixed; release from a mandatory life sentence is authorized by the Home Secretary following recommendations of the Parole Board and consultation with the Lord Chief Justice and the trial judge. A life sentence is also possible (but not mandatory) in a number of other grave offenses such as rape and robbery.

All prisoners given a fixed prison sentence are eligible for remission. Remission is automatic for those sentenced to less than four years at the halfway point of the sentence so that a person sentenced to six months will be released after three months and a person sentenced to three years will be released after eighteen months. If the defendant had time spent on remand in custody this time will be taken into account as time served.

Some inmates will be supervised in the community following their release. A distinction is made between those who are sentenced to over twelve months but less than four years. These will be supervised in the community after release from custody for a period equal to a quarter of their sentence length. Those sentenced to less than twelve months will not be subject to supervision in the community after release. Where supervision in the community is required it is undertaken by the Probation Service; there is not a separate parole service as there is in the United States.

Those sentenced to periods of four years and greater have their sentence remission counted differently. They are allowed one-third off their sentence length but may apply for parole after serving 50 percent of their time. Thus a person sentenced to twelve years becomes eligible to apply for parole after serving six years, and must be released after eight years. The decision on whether to release the inmate between the six- to eight-year period is made by the Parole Board. Compulsory community supervision applies to these released inmates.

Home Detention Curfew was introduced in 1999 to allow inmates early release up to sixty days before their automatic release date. During the period they are subject to a curfew and electronic monitoring.

The prison system held on average 64,631 prisoners a day in the year 1999/2000. This is five hundred more than the prison system was designed for, and thus overcrowding occurred in some, mainly male, local prisons (Prison Service).

The same range of community penalties are available for adults in the magistrates' courts and the Crown Court. In 1907 probation was introduced; in 1972 community service orders became available; and in 1991 the combination order and curfew order were established as sentencing options. However, the typical sentence is a fine, accounting for 992,400 out of 1.47 million sentenced offenders in 1999 (see Table 1). To promote the use of community sentences the Criminal Justice and Court Services Act 2000 introduced Drug Abstinence Orders and Exclusion Orders and renamed Probation Orders as Community Rehabilitation Orders; Community Service Orders became Community Punishment Orders; and Combination Orders were redesignated as Community Punishment and Rehabilitation Orders.