2 The changing structures for sentencing
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. 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.
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.
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. The process of developing sentencing guidelines
was changed again by the creation of the Sentencing Guidelines
Council in the Criminal Justice Act 2003.
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."
The work of the Sentencing Guidelines
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."
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 levelsthe 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.
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.
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).
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
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."
|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."
The role of that Committee would be to "offer observations,
advice and suggested amendments to the Council."
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
This corroborated the White Paper, Justice for All, which
stated that Parliament would be asked to look at sentencing guidelines
"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."
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."
JUSTICE SELECT COMMITTEE
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
Crime and Disorder Act 1998, Section 80 Back
Crime and Disorder Act 1998, Section 81 Back
Crime and Disorder Act 1998, Section 80 Back
Criminal Justice Act 2003, Section 167 Back
John Halliday, Making Punishments Work: A Review of the Sentencing
Framework for England & Wales, July 2001, para 8.7 Back
Sentencing Guidelines Council and Sentencing Advisory Panel, Annual
Report 2007/08, 25 June 2008 Back
Sentencing Guidelines Council, Definitive Guideline: Causing
Death by Driving,15 July 2008 Back
Sentencing Guidelines Council, Consultation Guideline:
Sentencing for fraud-statutory offences, 25 February 2009 Back
Sentencing Guidelines Council, Theft and Burglary in a building
other than a dwelling, Definitive Guideline, 9 December 2008 Back
Criminal Justice Act 2003, Sections 172 and 174 Back
Coroners and Justice Bill, Clause 111 Back
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
Home Affairs Committee, Fifth Report of Session 2003-04, Draft
Sentencing Guidelines 1 and 2, HC 1207 Back
House of Lords, Report of the Select Committee on the Constitution,
Criminal Justice Bill, Session 2002-3, HL Paper 129, 7th
The Criminal Justice System, Justice for All, Cm5563, July
Home Affairs Committee, Fifth Report of Session 2003-04, Draft
Sentencing Guidelines 1 and 2, HC 1207, paras 9 and 10. Back