Select Committee on Constitution Seventh Report

Appendix 4

Reply from Professor A J Ashworth QC, Vinerian Professor of English Law,

University of Oxford

Thank you for your letter about the constitutional implications of the sentencing provision of the Criminal Justice Bill. I will do my best to offer a few comments in response to the questions you pose.

1.  I have grave misgivings about the amendment to clause 160 that includes a person with experience of "sentencing policy and the administration of sentences" within the statutory membership of the Sentencing Guidelines Council, if that description is intended to apply to a Home Office civil servant. Such misgivings can only have a secure foundation once the constitutional position of the SGC has been determined, and that is a difficult matter. It is not part of the legislative or the executive branch, I would say, and must therefore rank as a quasi-judicial body. It will certainly be expected to act in a judicial manner. This suggests to me that it would be inappropriate to have a member of the executive on the SGC, especially if (as your question rightly implies) the civil servant would be expected to put forward and represent the views of her or his government department.

It is not clear that the same objection would apply to the other non-judicial members enumerated in the amended clause 160(4). Prosecution and defence lawyers may represent their organisational views, but at least they have taken a professional oath when admitted, and have a duty to the courts. The police are part of the executive, but they are technically an independent organisation.

One might question the need for any of these non-judicial members, on the ground that clause 163(8) requires the SGC to consult the Home Secretary before issuing guidelines, and on the ground that this non-judicial membership duplicates the diversity in membership of the Sentencing Advisory Panel, to which I now turn.

2.  The SAP includes three judicial members and a lay magistrate, three academics, three members of the public with no prior criminal justice connections, and others with backgrounds in probation, police, prisons and so forth. It has a statutory duty to consult widely, with a list of required consultees and a website that encourages (and receives) opinions from members of the public. It also has a small research budget, and has commissioned two research projects (on domestic burglary and on rape) whose results have informed its advice. The Panel may now be said to have established its credentials by producing a succession of draft guidelines, most of which have been adopted by the Court of Appeal without substantial amendment: see further the SAP annual reports, available at The Panel's latest annual report will be launched next Wednesday, 25 June.

This considerable overlap between the membership of the SAP and the new SGC (please forgive the acronyms) raises the question about the need for both bodies. The first part of the question must be whether there is a need for two agencies, whoever they are. At present the SAP gives advice to the Court of Appeal, and the guidelines then acquire their authority through incorporation into a judgment which binds the lower courts. This also creates a judicial filter, which was certainly necessary in the early days of the SAP, before it had established a pattern of working. It now seems that the higher judiciary is broadly content with the results of the Panel's deliberations. It might therefore be argued that, since the Panel has shown itself capable of generating sensible and acceptable guidelines over a period of some four years, it should be given the power to create definitive guidelines without further reference. If it were thought that this would risk a rift with the higher judiciary, why not reinforce the existing SAP by appointing one or two senior judges to it, rather than creating an extra tier in the shape of the SGC?

It may well be thought inappropriate to continue with the system established by sections 80-81 of the Crime and Disorder Act 1998, whereby the Court of Appeal lays down guidelines as part of judgments on appeals by individuals or references by the Attorney-General. Sentencing guidelines should not be located in court judgments but should be collected and presented elsewhere, since in reality they are a form of rule-making. It may therefore be suggested that the idea of a collection of what the Bill terms "definitive guidelines", presumably as a form of delegated legislation, is a preferable format. The SAP could be given the power to generate such guidelines, and the SGC would then appear to be a fifth wheel on the coach, as it were. All the requirements made of the SGC in clause 163 could be made of the Panel, including consulting the Home Secretary and other nominated consultees. It is evident, however, that the government has set itself against giving further powers to the Panel, and has decided to press for the creation of the SGC too.

3.  The intended relationship between the SGC and the SAP is unclear and under-documented in what has so far been published by the government. If the aspiration really is to produce comprehensive guidelines, the working practices of those two bodies need to be considered carefully. At present the Bill anticipates that the SGC can only act on the advice of the SAP; and the SAP's obligations to consult and to take account of various other factors mean that it tends to take 8 or 9 months to deal with each subject on which guidelines are required. The SAP meets once a month, and it seems that the SGC will meet less frequently. Several administrative issues need resolution if the operation is to be a smooth and productive one.

As for the intended relationship between the SGC and the Court of Appeal, this is also unclear. The Bill repeals the provision in the Crime and Disorder Act 1998 stating that the Court of Appeal cannot create sentencing guidelines without referring the matter to SAP, so it seems possible (in theory at least) that the Court could give its own guidance or guidelines if it thinks this necessary. It is more likely, however, that definitive guidelines (in the sense used in the Bill) will be applied by the Court of Appeal as if they were law; they are, however, guidelines and not rules, and the Court has emphasised on several occasions that guidelines do leave room for courts to depart from them in response to unusual combinations of facts, etc.

4.  I find it difficult to say whether the work of the SGC will "meet the public interest", since that is so often defined in terms of the views of the media or of politicians. The British Crime Survey demonstrates what the views of the public are, but as such they are systematically ignored by politicians. The term "public interest" is surely unhelpful in this context, because it is so heavily contested. It cannot be regarded as an objective standard.

I hope these few reflections are of use to you and the Committee. Please contact me again if you think I can be of further assistance.

17 June 2003

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