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This article will aim to explain the process of what happens when a person is arrested, charged, and, if found guilty, sentenced. The process can be split into three ‘parts’ which this article will explain in detail below. To help with understanding, we will follow ‘Liam’ along the journey of being arrested by the police, found guilty in court, and finally being sentenced.

Police Powers

The police play a huge role in keeping us all safe, but what powers do they actually have? As one would hope, the police – like the rest of us – are governed according to laws made by parliament. The powers of the police were codified by statute law in the Police and Criminal Evidence Act 1984, more commonly known as PACE.

PACE also created a ‘code of conduct’ for police which aims to assist the police when applying PACE in real life. For example, PACE may state the police need “reasonable suspicion” to stop and search someone. The code of conduct will explain to the police officers what this actually means, what it includes, what it does not include, and so on…

PACE is a very long and detailed statute but briefly explained below are some of the more important aspects of it.

‘Stop and Search’

Before arresting Liam, the police may want to search him, or his vehicle, to see if he is carrying something which he should not be. Prime examples are weapons – like a knife, items which the police think will be used in a burglary, or illegal fireworks.

For the police to conduct a stop and search, the police must satisfy two questions. First, they must believe Liam is carrying something he should not be (see above for examples).

Secondly, this belief must be reasonable and based on objective evidence. This means the police cannot base their search on personal characteristics, such as the colour of Liam’s skin, or other characteristics like his age of hair colour. There are exceptions to this rule. Say the police had intelligence that Liam was a member of a knife-wielding gang that wore bright pink socks, the police would be able to stop and search Liam if he was wearing bright pink socks. This is because it would be reasonable to do so; the decision to stop and search would not be based on prejudice, but objective evidence.

If Liam was subjected to a stop and searched by the police, he would still have various rights which he could exercise. These include:

The right to know the police officer’s name, police station, and their reason for the stop and search. Liam has the right to a written record of this reason.
The right that only Liam’s outer clothing be removed in public.
The right that if any further clothing is removed, this must be by a police officer of the same sex as Liam. This must also not be in public view.

‘Arrest’

Like stop and search, the police are not allowed to arrest anyone they want to. For a police officer to arrest Liam, they must believe one of three things:

Liam is about to commit a crime; or
Liam is currently committing a crime; or
Liam is going to commit a crime in the future.

On top of this, the police officer must also be certain it is ‘necessary’ to arrest Liam. This is very important as arresting Liam takes away one of the most important aspects of his life: freedom. Reasons why it may be necessary to arrest Liam are:

To find out his name.
To find out his address.
To stop Liam from harming himself or other people.
To protect a child or someone else who is vulnerable.
To allow for a quick and effective investigation
To prevent Liam from interfering with the investigation or disappearing entirely.

When arresting Liam, the police officer must tell the person as soon as is reasonably possible that they have been arrested and the reasons why they have been arrested.

They must also caution Liam. The following phrase is commonly used:

“You are under arrest for [insert crime]. You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence”.

Although wordy, this simply means:

Liam has the right to remain silent.
If Liam does stay silent when questioned, but later – when in court – says something which he could have told the police when they asked, this may harm his defence.
Anything Liam tells the police can be used against him in court.

‘At the police station’

Liam has further rights when he reaches the police station. The most important ones are as follows:

- The right to speak to a lawyer before the police interview him.
- The right to be held in a cell that is adequately heated and lit, clean and ventilated, and regular means.
- Access to a toilet and facility to wash.
- At least 8 hours rest per 24-hour period.
- A right to an interpreter if he cannot understand English well enough.
- The right to receive medical treatment.
- If a suspect requires menstrual products, they have the right to be asked in private about this as soon as possible.

If the police interview Liam, this must be recorded. Liam has the right to a break every two hours, a lawyer or appropriate adult to be present and not to be subject to oppressive questioning.

The CPS

Let’s say Liam has been stopped and searched, arrested, and charged by the police. What happens now? This is where the Crown Prosecution Service (CPS) becomes involved.

The CPS are an independent organisation that prosecutes cases that have been investigated by the police – they are not influenced by the government or police. The CPS do a number of things, in particular:

Decide who should be prosecuted.
Decide what crime the suspect should be charged with.
Prepare and argue cases in court.
Support those who are victims and witnesses of crime.

Like the police, the CPS have their own code which details the principles prosecutors should follow. This code makes clear:

Prosecutors are independent.
It is not the job of the CPS to decide whether a person is guilty or innocent.
Prosecutors must be independent and fair. They must also act in the interests of justice and not to simply convict someone.
The review of cases is continuous. This means that they must consider evidence that arrives at any stage of the investigation.

In regard to Liam, the CPS will consider two things before they decide to prosecute him.

First, they will consider whether the evidence is strong enough that it is likely Liam will be convicted when in court. To do this, the CPS will consider any defences Liam may have and the reliability of the evidence. For example, one witness, who was standing 50 meters away, and was not wearing their glasses, may not be as reliable as DNA evidence.

Secondly, the CPS will consider whether prosecuting Liam would be in the public interest. Say Liam had committed a minor offence and had not committed any other crimes, a police caution may be more suitable.

Sentencing

Things are not looking good for Liam. The CPS have decided that the evidence is strong enough to prosecute him. They have also decided it is in the public interest to prosecute him.

He has had his day in court and has been found guilty of Theft. What happens now?

Like PACE, all the sentencing laws of England and Wales have been codified in the Sentencing Act 2020. There are several key things to remember:

If Liam pleads guilty, this will mean his sentence will be less.
The length of Liam’s sentence will be based on how serious his crime was. Seriousness is determined by Liam’s culpability and the harm caused or intended.
The court in which Liam is tried (where his trial is held) will also determine the length of the sentence.

There are two criminal courts in England and Wales. These are the Magistrates’ Court and the Crown Court.

The Magistrates’ Court hears mainly minor offences. The maximum sentencing power is 6 months for one offence or 12 months for two or more serious offences.

The Crown Court hears more serious offences. The maximum sentencing power is unlimited, although the judge will follow the guidelines discussed below.

There are three types of offence:

Summary: these are minor offences like drink driving and common assault. They can only be tried in the Magistrates’ Court.
Triable-either-way: these are more serious offences like theft or burglary. They can be tried in either the Magistrate or Crown Court.
Indictable-only: these are the most serious offences like murder and manslaughter. They can only be heard in the Crown Court.

Various sentences can be imposed depending on how serious the offence is. Sentences include:

Custody - This can either be immediate (you’re going to prison) or suspended (you’re allowed to go home, but if you commit a further crime – no matter how serious – you will serve the rest of the sentence in prison).
Community - This includes things such as unpaid work, a curfew, treatment for drug use.
Fine
Discharge - This means you are allowed to go home. If you do not re-offend, you will not be punished.

In Liam’s case, his offence of theft is triable either way so it can be tried in either court. When sentencing Liam, the court will have to consider the Sentencing Council’s Guidelines. These can be found here.

These guidelines make clear the judge should consider both the culpability of Liam’s crime and the harm the crime caused.

If Liam thoroughly planned his crime and deliberately targeted someone vulnerable, this would probably be high culpability. If Liam did not plan the offence and was forced to do the act by someone else, this would probably show lesser culpability.

Next, the court will consider the harm of Liam’s crime. For theft, the financial value of the stolen item will be considered, as well as any harm to the victim. If Liam had stolen a £200,000 car and also caused severe distress to the victim, this would likely be the most serious type of harm. If Liam had stolen £10 from the victim, who did not notice and did not suffer harm, the court would consider this the lowest type of harm.

Having considered both Liam’s culpability, and the harm caused, the court will now be able to come to a decision as to what is the most appropriate sentence for Liam.

Crimes that have both high culpability and harm will result in the most serious sentence, and conversely, crimes with a lower culpability and harm will receive a lesser sentence.

Unfortunately for Liam, the judge has decided his crime is both one of high culpability and serious harm. This will allow the judge to see work out two things:

He will be able to work out the starting point of the sentence.
The range of sentences available.

The starting point shows the judge what the sentence should be before he considers any other things. The range indicates how lenient or harsh the sentence can be.

In Liam’s case, the guidelines tell the judge:

The starting point is 2 years in prison
The range is 1 year in prison to 3 years and 6 months in prison.

The judge can now exercise his discretion. The judge may decide there are mitigating factors that mean Liam should only spend close to 1 year in prison. Alternatively, he may decide there are aggravating factors and Liam should spend closer to 3 years and 6 months in prison.

Conclusion

This article has hopefully explained in detail some of the powers the police have, what the role of the CPS is, and how sentencing works in England and Wales. Whether you are considering the rights of the police, the rights you have, or perhaps the rights of the judge when sentencing, remember the wise words of a famous judge, Lord Denning: “be ye never so high, the law is above you” (meaning you’re never above the law).

Written by Jack Preece

Glossary box

Codified — putting all the laws in one singular place – in this case, the Police and Criminal Evidence Act 1984.

Statute law — A law made by Parliament (The House of Commons and House of Lords).

Prejudice — treating someone differently based on their perceived membership of a certain group (for example, disliking or liking people based on their blonde hair).

Rights — a legal entitlement

Defence — the reasons why you are not guilty of the alleged crime (for example, mistaken identity).

Appropriate adult — typically a parent, social worker, guardian, or someone over the age of 18 who is present in the interview for those for are vulnerable, or under the age of 18.

Caution — a formal warning by the police for someone who has admitted guilt to a minor crime.

Theft — taking something dishonestly, which does not belong to you, with the intention of never returning it to the original owner.

Culpability — how responsible you are for committing the offence.

Mitigating factors — things that reduce the seriousness of the offence.

Aggravating factors — things that increase seriousness.

Objective Factors - This is something which is based on independent evidence and not influenced by a person’s biases.

Leducate Explains: Police Powers, the CPS, and Sentencing