Sentencing guidelines and Parliament: building a bridge - Justice Committee Contents

2  The changing structures for sentencing guidelines

Developing a system to support consistency in sentencing

8. The current organisational structure for the production of sentencing guidelines has developed gradually. The Magistrates' Association had issued Magistrates' Court Sentencing Guidelines while the Court of Appeal produced guideline judgments following individual cases.[6] The Crime and Disorder Act 1998 placed a new duty on the Court of Appeal to consider producing or revising sentencing guidelines when hearing an appeal or an Attorney General's reference, or following a proposal from the Sentencing Advisory Panel.[7] The 1998 Act created this Sentencing Advisory Panel, which began its work in July 1999, to support the Court of Appeal in creating or revising sentencing guidelines, by carrying out consultation and providing advice and information to the Court.[8] The Court of Appeal was required in framing sentencing guidelines to consider: the need to promote consistency in sentencing, current sentencing practice, the cost and relative effectiveness of different sentences in preventing re-offending, the need to promote public confidence in the criminal justice system and the views of the Sentencing Advisory Panel.[9]

9. The process of developing sentencing guidelines was changed again by the creation of the Sentencing Guidelines Council in the Criminal Justice Act 2003.[10] This meant that the final determination as to the content of sentencing guidelines was made by a non-departmental public body with majority, but not wholly, judicial membership. The creation of the Sentencing Guidelines Council was one of three options for new machinery to develop sentencing guidelines considered by John Halliday in his review of sentencing, Making Punishments Work. Halliday stated that the goal "should be structured and principled decision making, not adherence to pre-determined outcomes, and within a framework based on deliberation and consultation, accessible to all, and capable of being modified in the light of experience."[11]

The work of the Sentencing Guidelines Council

10. The Sentencing Guidelines Council, chaired by the Lord Chief Justice, met for the first time in March 2004. To date, the Sentencing Guidelines Council has produced a range of definitive sentencing guidelines covering specific offence types and general principles, the latter including the definition of seriousness and reduction in sentence for a guilty plea (see Annex B). The 2007/08 annual report for the Sentencing Advisory Panel and Sentencing Guidelines Council reported that: "The Council is nearing the completion of its goal of producing a guideline for the majority of offences that are regularly sentenced as well as for key issues of general principle."[12] Sentencing guidelines for specific offences include robbery, offences in the Sexual Offences Act 2003, and assault and other offences against the person.
The development of a sentencing guideline

The Sentencing Guidelines Council decides to consider a particular topic for a guideline, on its own initiative or following a suggestion from the Sentencing Advisory Panel or the Secretary of State. The Sentencing Guidelines Council commissions the Sentencing Advisory Panel to provide advice. The Panel examines the area of sentencing and produces a consultation paper for public consultation. The Sentencing Advisory Panel may also commission independent research into a particular aspect of the topic. The Sentencing Advisory Panel considers the responses to its consultation and drafts advice to the Sentencing Guidelines Council. The Sentencing Guidelines Council then produces a draft sentencing guideline which is sent to the Secretary of State and the Justice Select Committee for consideration, with up to two months for comments. The Sentencing Guidelines Council makes the final decision as to what is issued as the definitive sentencing guideline.

11. Definitive sentencing guidelines covering offence types usually work by defining levels of seriousness for offences. For example, the sentencing guideline for offences of causing death by driving defines levels of seriousness for four specific offences in this category. The offence of causing death by careless driving has three levels—the highest level where the driving is not far short of dangerous, the lowest for careless or inconsiderate driving arising from momentary inattention and a middle band.[13] The draft sentencing guideline for fraud (statutory offences) proposes categories of seriousness for types of fraudulent activity (e.g. confidence fraud) rather than for specific offences based on both the amount obtained by fraud and characteristics of the activity, such as the level of planning.[14]

12. Guidelines provide starting points for each category of seriousness, from which a court sentencing a first time offender convicted after trial (i.e. who pled not guilty) would then apply mitigating or aggravating factors in order to reach a provisional sentence. Guidelines also provide a range within which this provisional sentence would normally fall. Previous convictions, personal mitigation and any discount required for a guilty plea would then be considered and might take the sentence outside the range. The sentencer must also consider the total sentence and ancillary orders and ensure that it is proportionate to the offending behaviour.

13. Guidelines also provide information about mitigating and aggravating factors particularly relevant to the specific offence. For example, the guideline on theft offences covers offenders committing acquisitive crime motivated by an addiction (the guideline on seriousness provides information on common general aggravating and mitigating factors).[15] Guidelines also cover issues in relation to ancillary orders that might be made, such as confiscation or disqualification from driving.

14. Under the Criminal Justice Act 2003 sentencers must "have regard to" relevant guidelines and give reasons if a sentence is imposed outside that set out in guidelines as normally appropriate.[16] The Coroners and Justice Bill, as sent to the House of Lords on 26 March 2009, provides that every court must "follow" any relevant sentencing guidelines "unless the court is satisfied that it would be contrary to the interests of justice to do so."[17]
The Coroners and Justice Bill

The Coroners and Justice Bill proposes the creation of a single Sentencing Council for England and Wales, to replace the existing Sentencing Guidelines Council and Sentencing Advisory Panel. The Bill requires the Sentencing Council to consult on draft sentencing guidelines, specifically with the Justice Select Committee. The Bill places further duties on the new Sentencing Council to provide impact assessments with draft sentencing guidelines, to monitor the effect of sentencing guidelines and to publish with its annual report information on the sentencing and non-sentencing factors likely to impact on prison, probation and youth justice resources. The Council must also publish information on sentencing practice locally and may do so nationally. A point of controversy in consideration of the Bill is whether there should be a stricter requirement on the court to apply guidelines than that which is set out in the Criminal Justice Act 2003.

The role of Parliament

15. During discussions on the creation of the Sentencing Guidelines Council, the then Leader of the House, the Rt Hon Robin Cook MP, suggested that the Home Affairs Select Committee could act as "a bridge […] between Parliament and the [Sentencing Guidelines] Council in order to enable Parliament properly to contribute to those guidelines whilst preserving the proper independence of the Council."[18] The role of that Committee would be to "offer observations, advice and suggested amendments to the Council."[19]

16. According to the then Home Secretary, the Rt Hon David Blunkett MP, at the time of creating the Sentencing Guidelines Council there was "concern which was raised in the House of Commons that there should be a greater role both for Parliament and the wider community in the production of sentencing guidelines."[20] This corroborated the White Paper, Justice for All, which stated that Parliament would be asked to look at sentencing guidelines as:

    "this will ensure democratic engagement in the setting of guidelines, by those who have to consider proposals for, and make the law on, sentencing. The public has a right to expect this democratic engagement in a way that does not contravene the proper distinction between the role of Parliament and the independence of the judiciary."[21]

17. The Home Affairs Select Committee agreed to carry out the role of reviewing draft guidelines, stating:

    "We do not envisage our function as being to give or withhold formal approval of each guideline, or to provide extended analysis of its contents, but to focus on particular issues of concern or interest to Parliament or the public. Where we consider that a draft guideline raises major issues, we will make a report to the House on these. In the case of other guidelines we will supply our comments to the Council in the form of a letter from the Chairman, which we will also publish on our website.

    "We consider that there may be some circumstances in which it would be desirable for draft guidelines which raise particularly important or sensitive issues to be debated in a forum which other Members of the House could attend. The Government has agreed in principle to the proposal that draft guidelines should be referred, where need arises, to a standing committee on delegated legislation. This proposal raises procedural and other issues which require further consideration. An alternative possibility would be for this Committee's report on a draft guideline to be debated in Westminster Hall on a motion for the adjournment."[22]


18. On 9 May 2007 the Justice Select Committee took over the parliamentary role in relation to sentencing guidelines as a consequence of changes in departmental responsibilities. We considered seven sentencing guidelines between May 2007 and May 2009. We also conducted a major inquiry, Towards Effective Sentencing, to evaluate the implementation and impact of the Criminal Justice Act 2003, the principal sentencing statute, and heard oral evidence on the topical issue of proposals for a Sentencing Commission (see Annex A).

6   The Sentencing Guidelines Council issued Magistrates' Court Sentencing Guidelines in May 2008; the Sentencing Guidelines Council also publishes a compendium of guideline judgments. Back

7   Crime and Disorder Act 1998, Section 80 Back

8   Crime and Disorder Act 1998, Section 81 Back

9   Crime and Disorder Act 1998, Section 80 Back

10   Criminal Justice Act 2003, Section 167 Back

11   John Halliday, Making Punishments Work: A Review of the Sentencing Framework for England & Wales, July 2001, para 8.7 Back

12   Sentencing Guidelines Council and Sentencing Advisory Panel, Annual Report 2007/08, 25 June 2008 Back

13   Sentencing Guidelines Council, Definitive Guideline: Causing Death by Driving,15 July 2008 Back

14   Sentencing Guidelines Council, Consultation Guideline: Sentencing for fraud-statutory offences, 25 February 2009 Back

15   Sentencing Guidelines Council, Theft and Burglary in a building other than a dwelling, Definitive Guideline, 9 December 2008 Back

16   Criminal Justice Act 2003, Sections 172 and 174 Back

17   Coroners and Justice Bill, Clause 111 Back

18   Letter dated 13 June 2002 from Rt Hon Robin Cook MP, Leader of the House, to Chris Mullin MP, Chairman of the Home Affairs Committee, reproduced in Home Affairs Committee, Fifth Report of Session 2003-04, Draft Sentencing Guidelines 1 and 2, HC 1207 Back

19   Home Affairs Committee, Fifth Report of Session 2003-04, Draft Sentencing Guidelines 1 and 2, HC 1207 Back

20   House of Lords, Report of the Select Committee on the Constitution, Criminal Justice Bill, Session 2002-3, HL Paper 129, 7th Report Back

21   The Criminal Justice System, Justice for All, Cm5563, July 2002 Back

22   Home Affairs Committee, Fifth Report of Session 2003-04, Draft Sentencing Guidelines 1 and 2, HC 1207, paras 9 and 10. Back

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