UK Sentencing Guidelines: A Structured Approach to Criminal Sentencing, Study notes of Decision Making

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What do Sentencing Guidelines

do?

Neil Hutton Centre for Crime Law and Justice University of Strathclyde Justice in the Criminal Courts in the 21st^ Century Leeds June 2013

Functions

• Structure Discretion

• Promote consistency

• Bring Law into Sentencing (Judge Frankel )

• Make sentencing more accountable

• Describe the process of sentencing decision

making : Transparency?

Step One: Determining the offence

category.

• Seriousness of the offence: Harm and Culpability
• Lists of aggravating and mitigating factors not comprehensive
• Three categories High (high culpability and high harm); Medium (high culpability and low harm/low culpability and high harm); and Low (low culpability, and low harm).
• Example: Causing grievous bodily harm with intent to do grievous bodily harm/Wounding with intent to do grievous bodily harm
• Offences against the Person Act 1861 (section 18)
• Category 1 12 years’ custody 9 –16 years’ custody
• Category 2 6 years’ custody 5 – 9 years’ custody
• Category 3 4 years’ custody 3 – 5 years’ custody

Step Two: Starting Points and

Category Ranges

• Further aggravating and mitigating factors
• Previous Convictions
• Personal Mitigation and Other Offence factors
• “make it appropriate for the court to move

outside the category range”. i.e. step 1 is

provisional.

Departures from the Guidelines

• Section 125(1) states that the court “must follow any sentencing guidelines which are relevant to the offender’s case, unless the court is satisfied that it would be contrary to the interests of justice to do so.”
• Previously “have regard to”
• Courts can depart from category range without being required to give reasons. Only required to give reasons for departures from the offence range (test: in the interests of justice)
• From 13 June 2011 to end 2011 96 % of sentences covered by the Assault Definitive Guideline fell within the offence range. 1% below and 3% above (not surprising given that the guideline does not take account of previous convictions which are statutorily aggravating.)

Causing grievous bodily harm with intent to do

grievous bodily harm/Wounding with intent to do

grievous bodily harm

Offences against the Person Act 1861 (section 18)

• Starting Point Range
• Category 1 12 years 9 – 16 years
• Category 2 6 years 5 – 9 years
• Category 3 4 years 3 – 5 years

What is consistency?

• Approach or Outcomes?

• Approach: Courts follow the same Nine Step

procedure. Failure to do so will constitute

grounds for appeal.

• Wasik CLR 2008 English guidelines focus on

“uniformity of approach not uniformity of

outcomes”

• But also outcomes? Crown Court Survey,

penalty ranges and departures

Consistency

• English guidelines therefore define consistency

both in terms of approach and outcome.

Guidelines perform consistency. Not something

out there to be measured but created by the

devices which we use to operationalise it and

thereby monitor it.

• Why the emphasis on approach in E and W?

• A pure individualised system (each case unique,

Cooper (CLR 2008)“no case is ever identical to

another” ) has no benchmark against which to

measure consistency.

Consistency of Approach

• “The underlying logic is that, if two courts

sentencing two different cases of , say, robbery,

impose different sentences, having followed the

same sequence of steps to determine sentence,

the difference between the dispositions is likely

to reflect legally relevant factors.”

• Roberts, J. V. Sentencing Guidelines and Judicial Discretion Evolution of the Duty of the Courts to Comply

in England and Wales. British Journal of Criminology (2011) 51 997-1013.

• Failure to demonstrate adherence to each of the

nine steps will be a ground of appeal (as will

failure to indicate the category at steps 1 and 2)

Accountability

• Compliance rates and reasoned departures

provide an account of consistency

• Nine Steps describe a systematic set of

procedures which must be complied with. Is

there anything wrong with box ticking?

• Therefore guidelines provide a language to

debate consistency.

Conclusions

• Structure Discretion: Formally yes, but allows intuitive sentencing with post hoc justification, no requirements for indicating weight of factors
• Promote consistency: Approach and outcomes
• Make sentencing more accountable; Steps must be followed, interests of justice identified, departures monitored
• In terms of public perceptions and public confidence the departure rules and the continued opacity of stages 1 and 2 may make it difficult for the public to see the point of the guidelines?
• Should guidelines aim to describe the process of sentencing decision making? Why risk creating unrealistic expectations?
• Make explicit the difference between formal accountability and trust in professional judgement.