Why using the guidelines is fraught with difficulties and unanswered questions
At the inception of the Sentencing Council in April 2010, the much maligned Sentencing Guidelines Council was laid to rest and a new approach to sentencing was to be proffered. At least, that was what was claimed.
The Sentencing Council for England and Wales has been set up…to promote greater transparency and consistency in sentencing, whilst maintaining the independence of the judiciary.
The initial problem was that the Council bore a striking resemblance to its predecessor; its make-up was an early indication that perhaps not very much was going to change.
In fact, the changes that were made were a time-consuming, expensive and wholly unsuccessful rebranding exercise, symptomatic of a fledgling and lackluster organisation. More of that come.
The Coroners and Justice Act 2009 Part IV and Schedule 15 makes provision for the composition of the Council. The requirements are in similar terms to those which governed the composition of the SGC. There are eight judicial members, including three LJs, and six non-judicial members. Two current non-judicial members include the Deputy Commissioner of the Met Police and the Chief Executive of the charity, Citizen’s Advice. Whilst they may have relevant and useful contributions to make to the formulation of sentencing guidelines, I consider that that contribution is best made through participation in consultations, and not as members of the council. The proposition that the persons best placed to decide the appropriate sentences, guidelines and offer guidance are the members of Court of Appeal, appears to me to be unarguable.
The approach taken is similar to that taken by the SGC; that is mechanistic, formulaic and without consideration of the wide variety of ways in which offences can be committed.
The Sentencing Council’s recent (and only guideline to date) Assault guideline rehearsed the same or similar aggravating and mitigating factors as the Sentencing Guidelines Council’s Assault and other offences against the person Definitive Guideline.
The ‘Assessing seriousness’ step of determining sentence in the SGC guideline is repeated by the Sentencing Council’s Definitive Guideline. The SGC requires the sentencer to consider the culpability of the offender and the harm caused by the offence. The Sentencing Council require the same exercise to be carried out, albeit that it is presented with greater concision.
This demonstrates that one need not take more than a cursory read to discover that there have been few changes and improvements to the approach taken by the SGC. The easy to read tabular format is, in my mind, the only improvement to an otherwise inadequate and unhelpful system of determining the correct sentence.
I consider there to be two problems with the approach. 1) It can be extremely difficult to place an offence within a category, and 2) sentencers are given no guidance as to how to properly evaluate the effect of the presence of factors included in the seemingly exhaustive list provided.
Step 1 – The offence category
The offence categories describe briefly, and in no way comprehensively, the way in which the Council feels it appropriate to separate types of offending:
Category 1 : Greater harm (serious injury must normally be present) and higher culpability
Category 2 : Greater harm (serious injury must normally be present) and lower culpability; or lesser harm and higher culpability
Category 3 : Lesser harm and lower culpability.
The sentencer is required to perform this task making reference to a seemingly exhaustive list of factors indicating higher and lower culpability and greater and lesser harm. There is no guidance as to how the presence of one of more factors impacts on sentence and how they are to be taken into account. Similarly there are no examples to which sentencers may make reference.
The first question I would ask myself, were I using these guidelines, is ‘Greater harm than what?’ and ‘Higher culpability than what?’. It provides no assistance and leaves the matter entirely to the discretion of the judge. It occurs to me that the category descriptions simply state that category 1 is worse than category 2, and little more.
Clearly, this is not the best way to promote consistency and understanding of the sentencing process. If judges and practitioners do not know where to place an offence in the guidelines, how can a member of the public understand how the system works and to what effect? More importantly, how can judges be expected to pass the correct sentence?
Step 2 – Starting point and category range
The sentencer must then, having decided on a category, use an equally unhelpful list of factors increasing or reducing seriousness or reflecting personal mitigation. Again, the factors are not quantifiable by reference to examples or decision of the Court of Appeal.
The same problems are present in step 2 as in step 1. How much does, for example, remorse reduce seriousness? How much remorse is worth three months off a sentence for a mid-range category 2 section 20? How does a sentencer accurately assess the impact of the location of the offence on the seriousness so as to pass the correct sentence? I submit that it is not possible by using the current system.
The guidelines do not cover all offences. Allowing judges to depart from the guidelines acknowledges that they do not cover all types of offence within each offence. Within each guideline, the offences to which the guidelines may be applied are the middle of the range, run-of-the-mill offence; your standard section 20 or standard burglary. They cannot and do not provide guidance for offences on the upper and lower extremes of offending in their respective offences. Take for example, Attorney General’s Reference Nos 73,75 of 2010 and 3 of 2011 2011 EWCA Crim 633, a guideline case in which the LCJ issued his own guidelines for rape committed during the course of a burglary. This was because the guidelines, produced by the SGC, did not adequately deal with the offences committed by the respondents. The recent riots provide another example. HHJ Gilbart QC, sentencing a number of defendants for offences related to the rioting in Manchester and Salford, stated that he considered that the guidelines (with the exception of the guilty plea reduction guideline) offered no assistance and he would therefore be formulating his own sentencing ranges for this series of offences. (Click here for HHJ Gilbart QC’s sentencing remarks)
The effect of the guidelines dealing only with the standard offences, is that they are ineffectual. An experienced Circuit judge does not need telling what the sentencing range for a section 20 glassing is. However, the judge may require guidance when sentencing an unusual example of an offence, perhaps a commercial burglary in the context of mass rioting. Unfortunately, as seen above, that guidance does not exist.
The consequence is simple. The Council’s guidelines have not in my view made a significant improvement on the SGC’s guidelines. It is perhaps unfair of me to state that there has simply been a regurgitation of the existing material, but all the hallmarks of the old guidelines are there. Ultimately, it is my view that the Council are not improving understanding, increasing consistency and reducing appeals to the Court of Appeal. Those are the aims to which it ought to strive, and those aims ought to be in the forefront of the Council’s mind at all times.
The guidelines, whilst not completely unhelpful, do not provide the assistance that they should and could provide. Furthermore, the ‘opt-out’ nature of the guidelines, allowing a judge to depart from a guideline where he considers it would contrary to the interests of justice not to do so (Coroners and Justice Act 2009 s 125(1)), arguably causes problems as, in order to promote consistency, the approach taken by sentencers must be universal, or all-but. It is important to note that it is not suggested that the discretion of the judge ought to be fettered. Quite the reverse.
What is needed, in my submission, is an overhaul of the guidelines so as to provide the sentencer with clear guidance on the sentence that is warranted in each case. Whether that ought to be achieved through examples of Court of Appeal judgments, fictional examples or simply text on how to quantify the factors which move an offence up or down the sentencing range, is not explored here.
The current system is unclear, unhelpful and unsatisfactory.