When are sentences consistent? Do they have to be identical in terms
or identical in impact? How will we know? When can we say that a
particular sentence has been effective? Is it just if offenders
don’t commit another crime? Or is it success to reduce the
frequency or severity of offending? What about “just deserts”?
Profound and significant issues that are grappled
with day in, day out up and down the country, as hundreds of courts
deal with crimes ranging from murder to theft to public order to
road traffic infringements. For over 30 years, sentencing guidelines
have evolved as a way of helping courts and of narrowing the gap
between what Parliament sets out in legislation and what happens
each day in court. These guidelines have come through the Court
of Appeal (mainly for the Crown Court), through the Magistrates’
Courts Sentencing Guidelines and through the Mode of Trial guidelines
produced by the Criminal Justice Consultative Council.
In 1999, Parliament created the Sentencing
Advisory Panel to provide advice to the Court of Appeal. This made
it easier for the wider issues of consistency and effectiveness
to be considered and it also made it possible for there to be a
wider consultation process. After a slow start, the Panel established
itself as a credible, authoritative body bringing together judiciary
from both Crown Court and magistrates’ court, academics, professionals
from inside the criminal justice system and those with no direct
links with that system. Its extensive consultation (and its meticulous
attention to the responses to that consultation) enabled a much
wider audience to play its part in shaping guidelines.
Two years on, the Halliday Report recommended
creation of a new body with responsibility for accelerating the
process of creating guidelines. This was one of the proposals that
eventually surfaced in the Criminal Justice Act 2003 and the Sentencing
Guidelines Council started work in March 2004.
The establishment of the Council marked a
wholly different approach - a novel and imaginative approach that
was a substantial improvement on the previous position. The Council
over a period of time will be able to produce comprehensive guidelines
covering the whole range of offences, which sentencers are obliged
to take into account and to give reasons for departing from.
The Council has a wide membership. Chaired
by the Lord Chief Justice, Lord Woolf, the Council consists of Judges
from all levels – Court of Appeal, High Court, Crown Court
and Magistrates’ Court - a Magistrate, the Director of Public
Prosecutions, a senior police officer, an experienced defence lawyer
and a person with substantial experience of the welfare of victims.
The Council receives the advice of the Sentencing
Advisory Panel which still consults very widely. It frames guidelines
taking account of the need to promote consistency, the cost and
relative effectiveness of the sentences available and the need to
promote public confidence. The guidelines are published initially
in draft form for consultation with Parliament, through the Home
Affairs Select Committee, and others including the Home Secretary,
Lord Chancellor and the Attorney General.
One of the new opportunities opening up because
of the Council is that, where Parliament creates new offences or
new punishments, providing there is enough time, guidelines can
be issued before those offences or punishments come into force.
In December 2004, the Council published guidelines on the new sentences
being introduced in April 2005 and this enabled Judges and Magistrates
to receive training in advance that was based on those guidelines
rather than having to wait for cases to be dealt with through the
appeal system. This makes it much more likely that a consistent
approach will be adopted from the start. The Council can also deal
with general sentencing issues rather than just sentences and this
has enabled a guideline to be produced on the reduction in sentence
to be given for a guilty plea. All these guidelines can be found
on the Council’s website – www.sentencing-guidelines.gov.uk
– or can be obtained from the Council and Panel Secretariat.
It is now a year on and the Council and Panel
are embarked on an ambitious programme of work. Over the next few
months, the Panel will deliver to the Council advice on the whole
of the new Sexual Offences Act 2003 and on Domestic Violence.
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The Council will
also complete its consideration of advice on robbery and on sentencing
for manslaughter where the conviction follows successful pleading
of the partial defence of provocation. All those are likely to lead
to the publication of draft guidelines during the summer. The Panel
continues preparing consultation papers on recommendations for deportation,
on assaults and other offences against the person, on sentencing
of drugs couriers, on sentencing for failure to surrender to bail,
on certain dishonesty offences (including theft from shops), on
criminal damage and on the sentencing of youths.
The Panel’s work on a particular topic
starts with a fact-finding stage. This includes an extensive survey
of case law and of both policy and research material that is relevant
to the topic. Additionally, the Panel may commission research to
enable it to understand the factors that influence courts in making
sentencing decisions in these cases. Sometimes this will involve
seeking the views of the public directly – this happened when
the Panel was examining whether rape by a stranger was more or less
serious than rape by an acquaintance. Sometimes it will explore
the factors that contribute to the selection of sentence –
for the consultation paper on theft from shops, the Panel is researching
the characteristics commonly found in cases that result in the different
types of sentence commonly imposed.
Another part of the role of the Council is
to improve the range of useful information available to help those
concerned with sentencing. The Council is about to produce a compendium
of guideline cases bringing together the existing guidance from
the Court of Appeal – again this will be available on the
Council’s website. The Council will also be publishing information
on sentencing trends starting with the 10 year trend and then followed
up with information at regular intervals. This will show the pattern
at both national and local level for key offences.
The Council and Panel are drawing on the national
and international expertise and experience that exists in the field
of sentencing guidelines. Working with specialists in the field,
the aim is to ensure that the data and statistics required for the
development of guidelines are readily and easily available. This
needs to reflect not only what is actually happening but, crucially,
what is the effectiveness of current practice.
The Council, assisted by the Panel, has a
number of key projects to take forward which are critical to the
long term development of a comprehensive system of sentencing and
allocation guidelines. For many of these, the benefit of being able
to share thinking and identify and anticipate practical and theoretical
issues at an early stage in the developmental process is clear.
The Council maintains regular contact with key representative groups
and has also created a focus group to inform and support the work
of both the Council and Panel. This group will be made up of those
who are able to bring extensive practical experience and expertise
to bear on the implications on day to day practice of the proposals
dealing with the complex issues concerning the approach to sentencing,
the range of sentences and orders available and practical application
of guidelines in the criminal courts. Members will include judicial
representatives (across all levels sitting in the Crown Court and
in Magistrates’ Courts), defence and prosecution advocates,
people from different sections of the National Offender Management
Service and others with an academic background. Collectively the
group will bring to the projects it considers a balance of knowledge
and experience of sentencing adult and youth offenders, of dealing
with offences across the seriousness spectrum and of considering
the geographical issues that impact on sentencing in rural and metropolitan
areas.
For more information or to contact us, please
visit our website, e-mail us at info@sentencing-guidelines.gsi.gov.uk
or write to us at 85 Buckingham Gate, London SW1E 6PD.
Kevin McCormac O.B.E., M.A.,
Barrister
Head of the Sentencing Guidelines Secretariat
March 2005
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