How do judges and magistrates decide on a sentence?

One of the most important considerations is to make sure appropriate sentences are given for each crime – in other words; the punishment should fit the crime.

To do this, judges and magistrates in England and Wales use sentencing guidelines. Each and every crime and offender is different and no two cases or victims are the same, but the way in which a judge or magistrate decide the sentence is the same.

What types of sentences are there?

The most severe type of sentence is prison. This may be used when a crime is very serious, or an offender has a previous criminal record. In these circumstances no other sentence may be deemed sufficient.

If offenders behave whilst in prison they will normally serve half their sentence and the rest on licence in the community. Being on licence is when offenders have to comply with certain rules – for example, wearing an electronic tag. If the offender fails to comply, they can be sent back to prison for the rest of the sentence.

Some short prison sentences can also be suspended, which means that instead of going straight to prison the offender goes through a period of supervision. If they break those conditions, they can be sent to prison.

Community Sentence

Community sentences combine community rehabilitation with activities carried out in the community, such as removing graffiti, getting treatment for drug addictions or keeping to a curfew. Offenders can be made to undertake between 40 and 300 hours of unpaid work.


Fines are the most common types of sentence and are for less serious offences. The level of fine depends on the seriousness of the offence and how much money the offender has. The maximum amount allowed in a Magistrate’s Court is £5,000, but fines are unlimited in the Crown Court.

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This is when the court decides that, given the nature of the crime and the character of the person who committed it, no punishment is appropriate. This leads to two types of discharge:

Absolute discharge: No further action is taken, since either the offence was very minor, or the court considers that the experience has been enough of a deterrent. The offender will receive a criminal record.

Conditional discharge: The offender is released and the offence registered on their criminal record. No further action is taken unless they commit a further offence within a time decided by the court (no more than three years).

What things do judges and magistrates take into account?

For each crime there are a range of services available and the judge or magistrates have to decide which sentence is right.

They consider many aspects:

  • How serious is the crime? The more serious the greater the sentence.
  • What was the harm to the victim? Physical injury, psychological effects or loss of possessions are taken into account.
  • How blameworthy was the offender? Was there planning, targeting and use of a weapon?
  • Has the offender got previous convictions? Someone found guilty of similar offences will be treated more harshly.
  • What are the offender’s personal circumstances? Does the offender look after dependent relatives?
  • Is the offender sorry? The offender might have shown genuine remorse for committing the crime.
  • Has the offender pleaded guilty? Saving the victim and witnesses distress at court and also saving court costs and time, can usually attract a lower sentence.
  • How can reoffending be stopped? What sentence is most likely to stop the offender from reoffending?
  • Victim Personal Statement – The judge will take this in to account when deciding on the sentence.  Read more, here.

Appeals and Compensation

Under certain circumstances, appeals can be lodged either by the defendant against the verdict or by the prosecution if they believe the sentence is not strong enough.

The prosecution cannot appeal against the conviction, but if fresh evidence surfaces after the trial, another trial or investigation might take place.

A victim may be awarded compensation by the court, but might also be eligible to apply to the Criminal Injuries Compensation Authority.