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Legal Aid, Sentencing and Punishment of Offenders Act 2012

Section 64: Duty to give reasons for and to explain effect of sentence

364.Section 64 replaces the existing section 174 of the 1991 Act with a new version of that section retaining a general duty to explain a sentence and reducing the specific requirements on the court.

365.The substituted version of section 174 retains, in subsection (2), the general duty on a court to explain in open court and in ordinary language the court’s reasons for deciding on a sentence.  The substituted section 174 also retains the general duty, in subsection (3), to explain to an offender the effect of the sentence and the implications of the offender not complying with the sentence.

366.Subsection (4) makes corresponding amendments to the Armed Forces Act 2006.

367.The substituted section 174 provides, in subsection (4), that the Criminal Procedure Rules may prescribe cases in which either the duty to state the court’s reasons for deciding on the sentence, or the duty to explain the matters mentioned in subsection (3) does not apply.  It also provides that Criminal Procedure Rules may make provision about how an explanation of the matters mentioned in section subsection (3) is to be given.

368.The substituted section 174 goes on to set out, in subsections (6) to (8), a revised and reduced list of the particular duties on courts to explain aspects of a sentence.  These duties include, in subsection (6), identifying relevant sentencing guidelines and explaining how they were applied or why they were not applied.  In subsection (7) there is a duty to explain the impact on the sentence of a reduction for a guilty plea.  In subsection (8) a court must explain, in giving a juvenile a discretionary custodial sentence, why a non-custodial sentence could not be justified, and in making a youth rehabilitation order with intensive supervision and surveillance or with fostering, why the order is appropriate.

369.The substituted section 174 removes specific duties to explain the court’s consideration of the thresholds for imposing a custodial sentence or community order. The new section 174 also removes the particular exception from the general duty to explain a sentence where the sentence is fixed by law (mandatory minimum sentences). These considerations are now covered by the general duty on courts contained in subsections (2) and (3) of the substituted section 174.

370.Section 65: Sentencing where there is aggravation related to transgender identity

371.Section 65 amends section 146 of the 1991 Act. Section 146 provides that it is a factor increasing the seriousness of an offence, which affects the severity of the sentence, if the offender demonstrates, or was motivated by, hostility based on the victim’s sexual orientation or disability. The section adds transgender identity (or presumed transgender identity) to the personal characteristics which will constitute an aggravating factor. The umbrella term “transgender” is not defined but subsection (6) (which inserts new subsection (6) into section 146) makes it clear that “being transgender” includes, but is not limited to, being transsexual.

372.Section 65 also amends Schedule 21 to the 1991 Act, which sets out the starting points which a court should adopt when determining a minimum term for a mandatory life sentence imposed for murder.

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