The Criminal Procedure Rules 2013

Procedure if the court convicts

37.10.—(1) This rule applies if the court convicts the defendant.

(2) The court—

(a) may exercise its power to require—

(i) a statement of the defendant’s financial circumstances,

(ii) a pre-sentence report; and

(b) may (and in some circumstances must) remit the defendant to a youth court for sentence where—

(i) the defendant is under 18, and

(ii) the convicting court is not itself a youth court.

(3) The prosecutor must—

(a) summarise the prosecution case, if the sentencing court has not heard evidence;

(b) identify any offence to be taken into consideration in sentencing;

(c) provide information relevant to sentence, including any statement of the effect of the offence on the victim, the victim’s family or others; and

(d) where it is likely to assist the court, identify any other matter relevant to sentence, including—

(i) aggravating and mitigating factors,

(ii) the legislation applicable, and

(iii) any sentencing guidelines, or guideline cases.

(4) The defendant must provide details of financial circumstances—

(a) in any form required by the court officer;

(b) by any date directed by the court or by the court officer.

(5) Where the defendant pleads guilty but wants to be sentenced on a different basis to that disclosed by the prosecution case—

(a) the defendant must set out that basis in writing, identifying what is in dispute;

(b) the court may invite the parties to make representations about whether the dispute is material to sentence; and

(c) if the court decides that it is a material dispute, the court must—

(i) invite such further representations or evidence as it may require, and

(ii) decide the dispute.

(6) Where the court has power to order the endorsement of the defendant’s driving licence, or power to order the disqualification of the defendant from holding or obtaining one—

(a) if other legislation so permits, a defendant who wants the court not to exercise that power must introduce the evidence or information on which the defendant relies;

(b) the prosecutor may introduce evidence; and

(c) the parties may make representations about that evidence or information.

(7) Before the court passes sentence—

(a) the court must—

(i) give the defendant an opportunity to make representations and introduce evidence relevant to sentence, and

(ii) where the defendant is under 18, give the defendant’s parents, guardian or other supporting adult, if present, such an opportunity as well; and

(b) the justices’ legal adviser or the court must elicit any further information relevant to sentence that the court may require.

(8) If the court requires more information, it may exercise its power to adjourn the hearing for not more than—

(a) 3 weeks at a time, if the defendant will be in custody; or

(b) 4 weeks at a time.

(9) When the court has taken into account all the evidence, information and any report available, the court must—

(a) as a general rule, pass sentence there and then;

(b) when passing sentence, explain the reasons for deciding on that sentence, unless neither the defendant nor any member of the public is present;

(c) when passing sentence, explain to the defendant its effect, the consequences of failing to comply with any order or pay any fine, and any power that the court has to vary or review the sentence, unless—

(i) the defendant is absent, or

(ii) the defendant’s ill-health or disorderly conduct makes such an explanation impracticable;

(d) give any such explanation in terms the defendant, if present, can understand (with help, if necessary); and

(e) consider exercising any power it has to make a costs or other order.

(10) Despite the general rule—

(a) the court must adjourn the hearing if the defendant is absent, the case started with a summons or requisition, and either—

(i) the court considers passing a custodial sentence, or

(ii) the court considers imposing a disqualification (unless it has already adjourned the hearing to give the defendant an opportunity to attend);

(b) the court may exercise any power it has to—

(i) commit the defendant to the Crown Court for sentence (and in some cases it must do so), or

(ii) defer sentence for up to 6 months.

[Note. See sections 9, 10 and 11 of the Magistrates’ Courts Act 1980(1), and sections 143, 158, 164, 172 and 174 of the Criminal Justice Act 2003(2).

Under section 11(3A) of the 1980 Act, a custodial sentence passed in the defendant’s absence does not take effect until the defendant is brought before the court.

Under sections 57D and 57E of the Crime and Disorder Act 1998(3), the court may require a defendant to attend a sentencing hearing by live link.

Under section 162 of the Criminal Justice Act 2003(4), the court may require a defendant who is an individual to provide a statement of financial circumstances if the defendant—

(a) serves notice of guilty plea, where rule 37.8 applies; or

(b) is convicted.

Under section 20A of the Criminal Justice Act 1991(5), it is an offence for a defendant knowingly or recklessly to make a false or incomplete statement of financial circumstances, or to fail to provide such a statement, in response to a request by a court officer on behalf of the court.

Under section 156 of the Criminal Justice Act 2003(6), the general rule (subject to exceptions) is that the court must obtain and consider a pre-sentence report—

(a) where it is considering a custodial sentence or a community sentence;

(b) where it thinks the defendant may pose a significant risk of causing serious harm to the public by further offending.

Under section 159 of the Criminal Justice Act 2003(7), where the court obtains a written pre-sentence report about a defendant who is under 18, it may direct that information in it must be withheld, if it would be likely to create a risk of significant harm to the defendant.

For the circumstances in which a magistrates’ court may (and in some cases must) remit the defendant to a youth court for sentence, see section 8 of the Powers of Criminal Courts (Sentencing) Act 2000(8).

The Sentencing Council may issue sentencing guidelines under section 120 of the Coroners and Justice Act 2009(9).

For the circumstances in which a court may (and in some cases must) order the endorsement of a defendant’s driving licence, or the disqualification of a defendant from holding or obtaining one, see sections 34, 35 and 44 of the Road Traffic Offenders Act 1988(10). Under that legislation, in some circumstances the court has discretion not to make such an order.

The evidence that may be introduced is subject to rules of evidence.

In addition to the specific powers to which this rule applies, the court has a general power to adjourn a trial: see rule 37.2.

Under section 174(4) of the Criminal Justice Act 2003(11), Criminal Procedure Rules may prescribe cases in which there do not apply the court’s usual duties to give reasons and explanations. Written notice of the effect of some sentences is required by rule 42.2 (notice of requirements of suspended sentence or community, etc. order), rule 42.3 (notice of statutory notification requirements) and rule 52.2 (notice of fine or other financial order).

For the circumstances in which a magistrates’ court may (and in some cases must) commit a defendant to the Crown Court for sentence, see sections 3, 3A, 3B, 3C, 4, 4A and 6 of the Powers of Criminal Courts (Sentencing) Act 2000(12).

Under section 1 of the 2000 Act(13), if (among other things) the defendant consents, the court may defer sentence for up to 6 months, for the purpose of allowing it to take account of the defendant’s conduct after conviction, or any change in the defendant’s circumstances.]

(1)

1980 c. 43; section 10 was amended by section 59 of, and paragraph 1 of Schedule 9 to, the Criminal Justice Act 1982 (c. 48), section 68 of, and paragraph 6 of Schedule 8 to, the Criminal Justice Act 1991 (c. 53) and section 47 of the Crime and Disorder Act 1998 (c. 37). Section 11 was amended by section 123 of, and paragraph 1 of Schedule 8 to, the Criminal Justice Act 1988 (c. 33), section 168 of, and paragraph 39 of Schedule 10 to, the Criminal Justice and Public Order Act 1994 (c. 33), section 119 of, and paragraph 39 of Schedule 8 to, the Crime and Disorder Act 1998 (c. 37), section 304 of, and paragraphs 25 and 26 of Schedule 32 to, the Criminal Justice Act 2003 (c. 44) and section 54 of the Criminal Justice and Immigration Act 2008 (c. 4).

(2)

2003 c. 44; section 143 was amended by section 378 of, and paragraph 216 of Schedule 16 to the Armed Forces Act 2006 (c. 52). Section 158 was amended by section 64 of, and Part 4 of Schedule 5 to, the Children Act 2004 (c. 31), article 3 of, and paragraph 19 of Schedule 1 to, S.I. 2008/912 and section 12 of the Criminal Justice and Immigration Act 2008 (c. 4). Section 164 was amended by section 14 of the Domestic Violence, Crime and Victims Act 2004 (c. 28). Section 174 was substituted by section 64 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10).

(3)

1998 c. 37; sections 57A to 57E were substituted for section 57 as originally enacted by section 45 of the Police and Justice Act 2006 (c. 48), and amended by sections 106, 109 and 178 of, and Part 3 of Schedule 23 to, the Coroners and Justice Act 2009 (c. 25).

(4)

2003 c. 44.

(5)

1991 c. 53; section 20A was inserted by section 168 of, and paragraph 43 of Schedule 9 to, the Criminal Justice and Public Order Act 1994 (c. 33) and amended by sections 95 and 109 of, and paragraph 350 of Schedule 8 to, the Courts Act 2003 (c. 39).

(6)

2003 c. 44; section 156 was amended by sections 6 and 149 of, and paragraphs 71 and 77 of Schedule 4 and Part 1 of Schedule 28 to, the Criminal Justice and Immigration Act 2008 (c. 4) and paragraphs 8 and 13 of Schedule 19, and paragraphs 20 and 22 of Schedule 21, to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10).

(7)

2003 c. 44; section 159 was amended by section 208 of, and paragraphs 145 and 147 of Schedule 21 to, the Legal Services Act 2007 (c. 29).

(8)

2000 c. 6; section 8 was amended by section 41 of, and paragraph 74 of Schedule 3 to, the Criminal Justice Act 2003 (c. 44) and article 2 of, and paragraph 62 of the Schedule to S.I. 2005/886).

(9)

2009 c. 25.

(10)

1988 c. 53; section 34 was amended by section 29(1), (2) and (3) of the Road Traffic Act 1991 (c. 40), section 3(2) of the Aggravated Vehicle-Taking Act 1992 (c. 11), section 165(1) of, and paragraph 121 of Schedule 9 to, the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6), sections 56 and 107 of, and Schedule 8 to, the Police Reform Act 2002 (c. 30), section 25(2) of the Road Safety Act 2006 (c. 49), article 2(1)(b) of S.I. 2007/3480 and paragraphs 2 and 5 of Schedule 27 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10). It is further amended by section 177(1) of, and paragraph 90 of Schedule 21 to, the Coroners and Justice Act 2009 (c. 25), with effect from a date to be appointed.

(11)

2003 c. 44; section 174 was substituted by section 64 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10).

(12)

2000 c. 6; sections 3, 4 and 6 were amended, and sections 3A, 3B, 3C and 4A inserted, by paragraphs 21, 22A, 23, 24, 25 and 28 of Schedule 3 to the Criminal Justice Act 2003 (c. 44). Section 3A was amended by section 53 of, and paragraphs 1 and 9 of Schedule 13 to, the Criminal Justice and Immigration Act 2008 (c. 4) and paragraphs 7 and 8 of Schedule 21 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10). Section 3C was amended by paragraphs 7 and 9 of Schedule 21 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10). Section 6 was further amended by paragraphs 90 and 91 of Schedule 32, and Parts 7 and 9 of Schedule 37, to the Criminal Justice Act 2003 (c. 44).

(13)

2000 c. 6; section 1 was substituted, together with sections 1A to 1D, by section 278 of, and paragraph 1 of Schedule 23 to, the Criminal Justice Act 2003 (c. 44) and amended by article 3 of, and paragraph 14 of Schedule 1 to, S.I. 2008/912.