I Sentence You …
Sentencing Guidelines.
Caveat: I am NOT a legal expert, so bear that in mind when reading the following.
For the vast majority of crime novels, the culprit is caught and convicted, and sent to jail. In the UK, if they committed murder, they will have received a mandatory life sentence. Generally speaking, that’s about as much detail as the writer will include.
But sometimes you want more. Perhaps you’d like to state how long your antagonist will go to jail for? Perhaps they previously served time in jail and had been released – in which case what were they in for, and how long did they serve? Were they released on licence or is their original sentence spent? A mandatory life sentence comes with a minimum tariff to be served before they can be considered for parole. How is that decided?
Needless to say, determining a sentence is a complex and controversial process. Most writers have limited legal expertise, but want their stories to ring true. So how can you find out what is an appropriate sentence for your character?
The Basics:
- All jurisdictions have their own rules and often their own terminology.
In the UK, England & Wales follow the same guidelines, whilst Scotland and Northern Ireland have their own legal systems. So first of all, ensure that you understand the requirements of your jurisdiction (Scotland differs from England & Wales for example by having a fifteen person jury, rather than twelve, and the prosecutor is the Procurator Fiscal, rather than the Crown Prosecution Service).
- If you are writing a book set in the US, the law is a patchwork quilt of Federal (country-wide), State and even county. You will need to figure out whose jurisdiction your offender falls under (a combination of location and type of offence).
The law and sentencing guidelines change and evolve – make sure you consider the time in which your story is set.
For the purposes of this article, I am going to stick with what I know best, modern-day England & Wales.
- First, check if your crime would be dealt with by a Magistrate Court or a Crown Court.
- As a rule of thumb, Magistrates deal with offences that would ordinarily be dealt with by fines, community service or short custodial sentences. There is no jury. They will also determine if the accused should be committed for a jury trial in the Crown Court. This link to the Sentencing Council lists the sort of offences that a magistrate may deal with.
https://www.sentencingcouncil.org.uk/offences/
- Some charges carry potential sentences that are outside the remit of the magistrates court and so should be committed to a jury trial in a crown court. Other offences can be triable either way – in other words the magistrate can either deal with it or send to the crown court. This link to the Sentencing Council lists the sort of offences that a crown court may deal with.
https://www.sentencingcouncil.org.uk/crown-court/
Notice that the list of offences is very similar, reflecting how many crimes are triable either way, depending on the circumstances and severity. However, there are some obvious differences: Attempted murder is only dealt with by the crown court, for example.
OK, so what now?
As a writer, you probably want a sentence that is broadly plausible and ideally fits the needs of your story (somebody convicted of murder isn’t going to be back on the street in six years unless their conviction is quashed. You need to either change the timelines in your story, or consider having them convicted of manslaughter or wounding with intent).
You basically have three options:
1) contact a solicitor or relevant legal professional and ask them how long they think your character would get (or work backwards – I want my character to go to prison for this long, what aggravating or mitigating circumstances would mean that length of sentence is plausible?). There are some Facebook groups where there may be experts willing to advise writers – just remember to specify where and when it is set and also read the answers carefully. Despite clearly stating your book is set in the UK, a lot of Americans will still chip in and recommend the death penalty, then start waffling on about plea deals and other such nonsense.
2) Search the internet for similar cases (check the dates, in case the law has changed since the real-life offence was committed) and see what sort of sentence was handed down. Assuming that there are no unusual aggravating or mitigating circumstances, you can probably just have your fictional character receive a similar sentence.
3) Look up the range of sentencing options on the Sentencing Council Website.
Despite what the tabloids would have you believe, judges actually follow a strict set of guidelines. Obviously, it requires an experienced judge to evaluate each case on its individual merits, but it will give a set of principles for them to follow.
Basically, each crime would have a ‘starting point‘.
- From there the judge must consider aggravating factors (things that increase the severity of the crime and thus the sentence) and mitigating circumstances (things that may decrease the severity of the crime and therefore the sentence). You sometimes hear about defence teams giving pleas in mitigation, which is their professional duty (however they or society may feel about the person and/or crime).
- Offenders are also given credit for a guilty plea, on a sliding scale, with a hefty reduction for admitting it at the first opportunity, to a lesser reduction for pleading guilty at the last moment (perhaps after the trial has already started).
- Time spent remanded in custody awaiting their trial (time spent) should also be considered.
- Should multiple sentences be served concurrently (at the same time) or consecutively (one after another)? This is another complex subject, but the principles are here https://www.sentencingcouncil.org.uk/overarching-guides/crown-court/item/totality/
What about release?
First of all, prisoners must serve their whole sentence. However, they don’t have to spend it all in prison. Typically, unless the judge has specified a minimum tariff (as in a life sentence), the prisoner is eligible for release halfway through. Then they will be released on licence to serve the remainder of the sentence in the community. The licence comes with rules, and if they breach those rules they will be recalled to prison, to potentially serve the remainder of their original sentence behind bars.
Life Sentences – an exception to the above.
Life sentences are mandatory for those convicted of murder, and can be given in some other extremely serious situations, such as rape or terrorism offences, if the judge feels it is justified.
Life sentences are slightly different to other offences. In these cases, the sentence lasts for the rest of the prisoner’s life. However, unlike other offences, where the prisoner is automatically released at the half-way point, the judge will set a minimum tariff that must be served behind bars before the prisoner can be considered for release by the parole board. If they are successful (and many aren’t on their first attempt) they will be released under strict licencing conditions, which they have to follow for the rest of their life. They can be recalled to prison to serve more time if they breach those conditions. The sentencing act 2020 lays out the guidelines in legislation here:
In exceptional circumstances, a judge can specify a whole-life tariff, where the prisoner will never be released. There are only 60 or so prisoners currently serving those sentences. You can probably guess which scumbags they are.
What are your thoughts on accuracy regarding sentencing in fiction? Do you know of any clearer websites that break down the guidelines further?
As always, feel free to comment here or on social media.
Until next time, all the best, Paul.
If you are a writer with a tip to share, or fancy writing a fictional interview between you and one of your characters, please feel free to email me.
