How the UK justice system determines prison sentences

On Monday at Westminster Magistrates’ Court, former BBC newsreader Huw Edwards (63) was given a six-month suspended jail sentence for viewing and possessing indecent images of children.

In the wake of the sentencing, questions started to emerge about the severity of the sentence compared to other high-profile criminal cases.

This case and others have highlighted a deeper issue: the disparity between public expectations of sentencing and its practical application within the legal framework.

James Gray, treasurer of the Criminal Bar Association and criminal barrister at 25 Bedford Row, noted: “There may be all kinds of reasons why sentences in the spotlight are criticised either for being too lenient or too harsh.”

“Unless those criticisms are informed by a considered understanding of the details of a particular case and the applicable guidelines, they are unlikely to be helpful in any debate on sentencing”.

So how does it work, and who decides a convicted person’s sentence in the justice system?

Who determines a criminal sentences?

The sentencing process begins when a person is found guilty of a criminal offence.

The sentencing could be anything from fines for lower-level offences to prison time for serious crimes.

The judge or magistrate must follow any relevant sentencing guidelines issued by the independent Sentencing Council unless doing so is contrary to the interests of justice.

As Tom Franklin, chief executive of the Magistrates’ Association explained: “Sentences for offences are set by Parliament, and in addition, the Sentencing Council publishes sentencing guidelines.”

“These outline step-by-step processes magistrates and judges must use to arrive at a sentence,” he added.

The Sentencing Council was established in 2009 and its guidelines are available online. 

What do the justice guidelines say?

Every case is different, and the court must determine each sentence based on the specific facts of the case.

As Franklin noted: “In following the guidelines, there are different factors that magistrates and judges consider when deciding sentences in individual cases, which can lead to different outcomes.”

He noted: “The sentence must be appropriate to the offence and the offender, and be tailored so that the risk the defendant poses to the public is appropriately managed.”

“The sentence should also aim to help reduce their risk of re-offending,” he added.

The court must reduce the applicable sentence where the offender has submitted a guilty plea. In some cases, the reduction can be up to a third.

If the court decides on a custodial sentence, it can be suspended (where the offender does not have to go to prison provided that they commit no further offences), but only if the sentence given is no longer than two years.

As Gray pointed out: “One of purposes of having sentencing guidelines, and one of their principal benefits, is that they lead to greater consistency in sentencing, so sentences for any particular offence should be broadly similar across the country.”

“However, the facts of one case are rarely identical to another, so it is not a purely mathematical exercise, and the judge is, and must be, allowed a degree of discretion,” he added.

He explained the discretion: “Allows the judge to adjust the sentence upwards, or downwards within the guidelines, to fit the facts of the particular case, and what is known about the offender.”

The rules of sentencing

While there are sentencing guidelines, sentences can vary.

For example, someone who pled guilty at the first opportunity will receive an automatic discount on their sentence.

Meanwhile, someone who has offended before will generally receive a higher sentence than someone who comes before the court with no previous convictions.

A genuinely remorseful offender will be treated more leniently than one who shows no insight or concern over the damage they have done.

An offender whose actions had a significant impact (either on a victim or a community) will receive a higher sentence than someone who commits an offence with little impact.

There are also essential safeguards against the risk of an incorrect sentence.

As Franklin pointed out: “Magistrates make decisions in benches of three, which provides a diversity of thought.”

“They are also required to state the reasons for their sentence in open court and will make sure a defendant understands how a sentence has been arrived at and what factors have been taken into account. There is an appeal mechanism available, though the appeal rate is very low,” he added.

Gray noted: “Judges are extremely good at weighing all the factors and imposing appropriate sentences.”

“The fame or notoriety of the person in the dock will not, unless it is actually relevant, sway them one way or the other,” Grey added.