The previous system of guidelines centred the Court of Appeal which used to provide guideline judgement on specific offences. This system had limitations. As the Halliday report puts it there is a risk that the Court of Appeals criminal division guidelines depends too heavily on the type of cases that comes before it–which are inevitably the more serious crown court cases and a small proportion of the total(1). Since the Court of Appeals guidance were mainly in relation to serious offences, the minor offences, most of which are dealt with by the magistrates courts are left with no guidance. It has been commented that there is scant authority to assist the magistrates in their sentencing jurisdiction(2).
Though a system of guidelines has been developed for magistrates by the Magistrates Association, in the absence of their statutory recognition or enforcement by higher Courts, it had very limited authority. Moreover, when various either way offences are dealt with by the Crown Court, they have no guidelines on how to impose sentence and sentencing was totally a matter of sentencing judges discretion. As a result of this lack of guidance a system of inconsistent sentencing developed in the Criminal Justice System of England and Wales. In 2001, 39 per cent of domestic burglars in Leeds received custodial sentences, whereas the proportion was only 21 per cent in Teeside.
The offence of driving while disqualified threw up even greater extremes, with 78 per cent of offenders receiving custodial sentences in Essex compared with 25 per cent in North Pembrokeshire(3). Such inconsistency which is likely to increase uncertainty and unpredictability of sentencing was certainly alarming and in an attempt to cure this defect the Sentencing Guideline Council (SGC) has been established by s.167 of Criminal Justice Act- 2003, following the recommendation of Halliday report.(4)
The task of the council is to set guidelines on specific offences as well as general principle of sentencing which applies to all the offences. The purpose behind the establishment of such a body was to bring consistency and a desire to have a voice of Parliament in the creation of guidelines amongst which consistency was the most important one according to various government announcements and as the Council itself claims to be its role . The home secretary states it is essential to have consistency in sentencing. People need to see justice being done in a way that commands their confidence and respect. The current system needs reform. The sentencing framework is not a complete guide and relies too much on individual discretion, leading, in cases, to considerable variations. ”
The Council is composed of seven judicial and four non-judicial member who are to be drawn from policing, criminal defence, criminal prosecution and the promotion of welfare and victims and the council is to be chaired by Lord Chief Justice . This composition which has been brought by amending a provision of sole judicial composition of the Council has not been welcomed by the House of Lords during the second reading of the bill and it was commented by the Lord Chief Justice that “The judiciary welcomed the creation of a council consisting of sentencers. However, an amendment has extended the membership, and, in doing so has changed the character of the council. I ask your Lordships to look at the membership that is now proposed. Of course the persons referred to are persons with knowledge of the criminal justice system — senior policemen, senior civil servants — but should they be members of a body that is to give advice to the judiciary … If the council is to carry real clout, as it must if it is to be effective, its membership should be confined to the judiciary”. However, despite the opposition it is submitted that it was a positive amendment. Because an establishment which is committed to strengthen public confidence in the sentencing process will have more claim to it if it represents values not of judges only but also the defendants, victims and other professionals whose functioning are affected by it either directly or indirectly. As Ashworth noted it is desirable to have a body with diverse experience in broad matters of penal policy , not merely because many judges have a tendency to support existing arrangements rather than to favour change, but also because other perspectives have a legitimate place in the deliberations.
Despite the non-judicial representation, the substantial representation of judicial members in the Council has been criticized by Michael Tonry who argues that a body with judicial majority and judicial chair is unlikely to bring the changes which are needed if the guidelines are to be taken seriously. However in a system like the English Criminal justice system where the judges are so resistive of any step which may interfere with their judicial independence, it would have been difficult to make them accept the guidelines unless they have the majority and ownership of the rules.
The Sentencing Guideline Council works on the advice of Sentencing Advisory Panel (SAP) which was established by S.80-81 of the Crime and Disorder Act 1998. The function of the SAP was to provide advice to the Court of Appeal on guidelines which was changed following the establishment of the SGC with the responsibility of advising SGC instead of the Court of Appeal. It was feared that the SAP will be marginalized with the establishment of the new body and the new body (SGC) will be tempted to do the Panels work all over again. However, this fear now appears to be unfounded as the SAP and the SGC has been able to establish a workable relationship between them by the Council adopting the Panels advice to a great extent in formulating its guidelines and the Panel providing well-researched and judicious advice to the Council
Another difficulty with the process by which the Council produces its guidelines is the statutory requirement to consult the Home secretary and Lord Chancellor on any of its draft guidelines. From a constitutional standpoint it is arguable whether members of executive should have such a direct influence on the formulation of guidelines as this may amount to the interference of the executive on the domain of judiciary. Similarly, from a political standpoint, as Ashworth argues, as politicians they will be looking to either vote winning or progress within the party rather than trying to take a considered and rounded view of the subject . However, as Parliamentarians, there is nothing unconstitutional in requiring the Council to consult the Home secretary and the Lord Chancellor. Since Parliament can legislate for sentencing framework, it can similarly have a contribution in the implementation of that framework. Moreover the fact that Council is not obliged to accept the proposals, the fear of intrusion into the judiciarys domain is much decreased.
The consultation with the wider public and willingnessness to accept recommendations makes the process more transparent and ensures that public views are more reflected in the guidelines so that the aim of making sentencing decision on broad consensus of society is achieved. For example, the Law Society following consultation on Guidelines on seriousness recommended that in the section of mitigating factors exceptional degree of provocation required further clarification. The SGC adopting the recommendation inserted greater degree of clarification than normal in an attempt to further clarify the matter. Such a consultation educates the public as to the different interests which have to be balanced in a sentencing decision whereby dissatisfaction with the sentences imposed is reduced and consequently public confidence improved in the criminal justice system.
Michael Tonry suggested that for a Sentencing Guideline Council to be effective it should be required to carry out and publish impact projections of its proposed guidelines on the prison and probation services and racial, ethnic and gender disparities. However, such a suggestion had not been adopted properly. Though there is a requirement for the SGC to have regard to the cost of different sentences, it is unclear whether this includes having regard to the places in prison and probation services. Indeed at the second meeting it was stated that the CJA 2003 should be amended to entitle the SGC to have regard to the prison and probation places . In a time when the Government is struggling to reduce prison population adoption of such a suggestion would have been helpful as with the publication of impact projection the Government could prepare itself to provide the places required. Another reason why adoption of Tonrys suggestion would have been helpful is the Court of Appeals decision in Attorney General’s Reference (No.11 of 2006) where it was stated that prison overcrowding may be a relevant factor where a case falls on the borderline between a non-custodial and a custodial disposal. The judges are therefore now required to have regard to prison places and SGC is the best body which can guide them on this issue. If the SGC has regard to prison population and probation and draft its guidelines having regard to the prison places, the sentencing by the judiciary applying those guidelines will be in line with the availability of prison and probation services. Similarly, guidelines have regard to its effect on races, it will be a step towards eradication of the allegation that sentencing, particularly custodial ones are imposed discriminately more on the blacks and Asians. It is not necessary to adopt a different guideline towards sentencing if that creates sentencing disparity because of the nature of the offence–the disparity is consequential and inevitable as opposed to deliberately created, but it is necessary to inform the public of the reason of such a disparity so that members of ethnic minority feels that they are not being discriminated deliberately. Such a step would certainly command more support of the public irrespective of race.
However it is not sufficient that the process by which the guidelines are formulated by SGC is good unless the actual guidelines are able to achieve the objectives which they are set to achieve so that the Council can be said to have brought some improvement in the sentencing process. The Council has so far published seven definitive guidelines after receiving advice from the Panel and consulting wider public and statutory consultees. In an attempt to develop a comprehensive set of guidelines, the first step should be to formulate the guidelines in simple and understandable language. The council has gone some way to achieve this. As Ashworth states the council appears to wish to simplify the format so that the essence of the guidelines can be conveyed more simply and succinctly.
The Criminal Justice Act- 2003 establishes a complex sentencing framework and the Sentencing Guidelines Council have attempted to guide the judges on this sentencing framework by the guideline New sentences- Criminal Justice Act 2003. In relation to Community sentences, it provides detailed guidelines by providing three sentencing ranges based on seriousness within which the community sentence can be imposed. The guidelines also makes it clear that in imposing the severity of the requirements, the seriousness and suitability should be the guiding principle though other factors such as risk of re-offending, the purpose of sentencing may also be considered . A non-exhaustive list of examples will further guide the judges in deciding which band is satisfied by the offence before him. The guidelines as to the custodial sentence is, however, not as clear as community ones. Though from the guideline of Overarching Principle–Seriousness it can be derived that in determining whether the custody threshold has been passed one should consider the seriousness of the offence as laid down in s. 152(2) of Criminal Justice Act-2003 , it is not clear what should guide the severity of the custodial sentence.
The Criminal Justice Act-2003 sets out five purposes to which the judges should have regard while imposing sentences. These are- punishment, rehabilitation, reparation of the victims, deterrence and incapacitation. By s. 148 and 152 which require the judges to have regard to the seriousness of the offence while determining whether to impose custodial or community sentence, it is clear that, these aims are to be taken into consideration besides the proportionality. But which one should be prioritized? It has been argued that, if multiple purposes are utilized, there should be adequate guidance on how sentencers should use among them . Unfortunately no such guidance is provided by the Council in its guidelines on seriousness apart from the fact that seriousness of the offence should be the first step in determining which threshold has been crossed. There is no guidance on how these different purposes will operate while determining sentence severity. It is unclear if an offence satisfies 2 years imprisonment on the basis of its seriousness whether it can be increased having regard to the other aims or if it can be increased, how much the increase should be. In this most vague area, the Court is left with determining the manner in which they apply. This may have the consequence of leading to inconsistent sentencing in different cases, the eradication of which was the very purpose why the SGC has been brought into existence.
S.143 (2) of Criminal Justice Act-2003 makes a provision for treating each prior conviction as an aggravating factor in considering seriousness if considered relevant and recent. This would have the effect of increasing sentence severity on the basis of previous conviction and may increase the sentence for lesser offending on the ground of previous conviction. Michael Tonry had suggested that the Council should strictly limit the extent to which the punishment for the current offence may be increased on account of previous conviction . In Halliday report, on the suggestion of which the Council has been established it was clearly stated that the guidelines should provide guidance on the operation of previous conviction in increasing sentence severity and specify the limits on such increase . However, it appears that this suggestion had not been taken up by the Council who treats it as any other aggravating factors . It is neither clear to what extent the seriousness would be increased on the basis of each previous conviction nor it is clear what is meant by recent and relevant conviction.
In Halliday report it was suggested that the guidelines should specify graded seriousness levels and presumptive entry points in relation to each level . This will ensure that offences of comparable seriousness receive sentences of same severity. The Sentencing Guideline Council has followed the suggestion and attempts to identify levels of seriousness within same offence and specify entry points in relation to each stage though it has not classified all the offences on the basis of their seriousness as both the Halliday report and Tonry suggested. For example, in the Guidelines for Robbery 3 levels of seriousness has been identified and presumptive points has been set as12 months custody at the lowest end of seriousness and 8 years at the highest end.
The guidelines in relation to specific offences are likely to be further helpful because of the detailed consideration provided to aggravating and mitigating factors in relation to different offences. For example in robbery, the aggravating factors has been specified as degree of force or violence, use of a weapon, vulnerability of the victim, value of property taken, offences committed at night whereas in the Guidelines on Domestic violence the aggravating factors has been specified as abuse of trust and abuse of power, the victim is particularly vulnerable, impact on children etc. Amongst the guidelines which had been published so far, the most controversial had been the guidelines on the reduction of sentences based on guilty plea. Depending on the stage at which guilty plea is obtained the guidelines allows for maximum one-third and minimum one-tenth reduction. The idea of reduction of sentences based on guilty plea is by nature controversial as it punishes those who exercise their right to trial . Though traditionally the Court of Appeal has justified the discount on the basis or the accuseds remorse, the Councils justification for providing such a discount purely on system based reasons, namely saving cost and time, the need for the victims and witnesses to testify, has made the guidelines more controversial. These grounds have been regarded as lacking any empirical foundation and has been rather argued as a practice that removes the victims from the criminal justice system. According to the guidelines,the level of the reduction should be gauged on a sliding scale from a maximum of one-third where the guilty plea was entered at the first reasonable opportunity, reducing in cases where the guilty plea was entered at a later stage. The guideline further stated that where an offender was caught red-handed, there was no reason why credit should be withheld or reduced on this ground alone. In Attorney Generals Reference (No 14 and 15 of 2006) the Attorney General criticized the discount of one-third as excessive. Allowance of maximum discount where there are overwhelming evidence against the accused–where he has been caught red-handed has also attracted criticism . Because a defendant who has pleaded guilty after being caught red-handed cannot be said to be providing any assistance to the system. The common law authorities also emphasised that limited discounts should be given to people who were caught red-handed. But the Councils guidelines provides that since the purpose of providing credit is to encourage those who are guilty to plead at the earliest opportunity, there is no reason why credit should be withheld or reduced on these grounds alone. The Court of Appeal, contrary to previous authorities appeared to be willing to apply the guidelines; in R v Gisborne the court stated the case against the appellant was utterly overwhelming as the judge recognised. But, in the light of para 5.2 of the Guideline issued by the Sentencing Guidelines Council in December 2004, the strength of the prosecution case should not, in itself, be regarded as a reason for reducing the discount otherwise appropriate for a prompt plea of guilty. As this appellant pleaded guilty at the first available opportunity, she was entitled to a discount of one third from the sentence which would have been appropriate following a trial”, but this did not relieve the Council from the criticisms it had faced.
Having faced all these criticisms the Council took a review of the guidelines under s.170(4) on reduction of senescence for guilty plea and decided to revise it. The controversial provisions relating discounts for defendant against whom there are overwhelming evidence is likely to be absent from the revised guidelines, as appears from the draft guideline but there is no attempt to minimize the level of maximum discount. As regards to general criticisms of the system of reduction for guilty plea, it is unfair to blame the council because it is Parliament which has given recognition to such a principle ; the Council is merely enforcing it.
So far the discussion has considered the content of the guidelines in an answer to the question whether they can be regarded as an improvement to the sentencing process. It has been seen that though there are drawbacks, the guidelines can nevertheless contribute to the improvement of sentencing process by providing helpful guidance to the judges. However, whether or not they will achieve an improvement in the sentencing process by bringing consistency in the sentencing depends much on the judges.
In a country where the judges are so protective of their judicial discretion and independence, it is difficult to make all the judges apply the same guidelines when sentencing. Lord Taylor had regarded the idea of sentencing should be programmed in detail so as to restrict the discretion of the sentencing Judge as a misconceived notion .
In fact, guidelines are in use in magistrates Court for a long time but if one looks at the statistics of the magistrates courts what emerges is clear inconsistency. For example, in following the guideline for the offence of driving while disqualified which stated in relation to the custody threshold as “so serious that only custody is appropriate”, the lower courts in the cities of Birmingham, Manchester, Liverpool and Leeds all hovered over the 50 per cent mark in following that suggestion, whereas Bristol and Nottingham sent 36 per cent into custody, Newcastle 31 per cent and Sheffield only 28 per cent. These were guidelines which had the format close to that produced by SGC. It stated statutory maxima, poses questions in relation to seriousness, indicating a guideline starting poin, with examples of potential aggravating and mitigating factors. nevertheless divergences persisted.
However, it can be argued that the guidelines for Magistrates did not have any statutory recognition and authority; adherence to them was therefore optional as opposed to compulsory which led to so many disparities in sentencing practices. This is unlikely to happen with the Councils guidelines as there is a statutory obligation for the judges to have regard to the guidelines by S.172 (1) and to state any reason for departure from them -s.174 (1). Such a binding nature of the guidelines has given it the status of direction.
It is too early to judge whether the Sentencing Guideline Council has been able to establish a vast change in the sentencing practice by bringing consistency. The courts appear to be willing to follow the guidelines. In R v Gisborne , as has been seen above the Court of Appeal contrary to its earlier practice as laid down in Landy allowed maximum discount for guilty plea. However, though the court of Appeal had followed the guidelines, it did not forget to mention its power to depart from the guidelines if it wishes and in Last it stated that the obligation to have regard to the guidelines does not necessarily mean they have to be followed.
Another problem with the guidelines is that though there is statutory authority to create the guidelines and statutory obligation incumbent upon Courts to have regard to them, it is not clear what kind of law they are as Ashworth argues. They are neither primary legislation, nor delegated legislation nor a judgement of a court. As a result, there might be difficulty in enforcing them in a judicial review action if any judge fails to follow them and give any proper explanation for doing so. But as the Court of Appeals approach in R. v Bowering (Kai)  EWCA Crim 3215 indicates, on a normal appeal against sentence the Court of Appeal is likely to criticise the trial judge for his or her failure to give reasons and enforce the guidelines if applicable. Therefore, the status of the guidelines will not affect the enforcement of them to a great extent.
It is difficult at this stage to judge whether consistency which is one of the main purposes for which the Council has been established, has been achieved or not. However, it is submitted that consistency is such an aim which is difficult if not impossible to achieve. Because individual cases vary greatly in their nature of aggravating and mitigating factors. Even if two case contain same aggravating factors, depending on their extent, the degree of seriousness may vary. There is always a question of how aggravating the factor is in the context of whole case and this question of how — a matter of degree or extent always has to be judged by the individual judge and depending on that sentences imposed may vary in different cases though on their surface they are of comparable seriousness. Because of such unique nature of each case, it has been observed that even where everybody starts from the same guidelines, different outcomes may result and consequently consistency in sentencing outcomes appears to be an illusion. As Lord Woolf comments Sentencing Guiedline Council helps towards achieving consistency but in sentencing you cannot always be consistent. It is therefore better to hope for the consistency in approach rather than outcomes and which given the Court of Appeals willingness to follow the guidelines, it is hoped that will soon be achieved.
Other factors to which the Guideline Council is directed to have regard by Statute are the cost of different sentences and their effect on preventing re-offending and the need to promote public confidence in the system. The emphasis on considering other forms of sentences while keeping in mind the rehabilitation of the offender in cases of offences merit custody sentence or community sentence, will guide the judges to consider other forms of sentences which will reflect the offence seriousness, even if community or custody threshold has been passed.
The sentencing in England and Wales has been criticized as being too lenient ad being totally ignorant of the views of ordinary people. However, Lord Chief Justice Woolf had commented that “We [ie, the Sentencing Guideline Council] can explain beforehand; can invite members of the media who are interested in the particular event to come and discuss the matter and explain what it is doing, what are the offences it is suggesting should be dealt with by punishment in the community, and when we talk about punishment in the community, what sort of punishment? Again, who is that punishment going to be for? It is the ability to talk and explain like that which is another advantage of the Council. It was perhaps expected that with the knowledge of what the community punishment entails, public will realize that community punishment does not necessarily involve leniency and can be a better way of dealing with even violent offender. With the easy access of Councils guidelines and wider consultation with public, the Council may go some way in educating public but whether that will necessarily lead them to hold that community punishment is less lenient is questionable, particularly if it is imposed in relation to an offender who has committed a morally reprehensible crime and community punishment is imposed on him because he can be rehabilitated or because that is the cheaper form of punishment. It is submitted that not merely the knowledge of how community punishment works will play a great role in enhancing the public confidence unless they learn what the criminal system wants to achieve from the system of sentencing offenders–proportionate punishment or rehabilitation–an area which the CJA-2003 and the Council both fails to clarify as has been shown above.
The Sentencing Guideline Council is a significant development in recent years which in conjunction with the Sentencing Advisory Panel is working to guide the judges on how to approach sentencing, bring a consistency in the sentencing practices and enhancing public confidence in the sentencing system. The process by which guidelines are produced is well-suited to the constitutional arrangement of the country and also to the objectives which it is intended to achieve. There is sufficient transparency, accountability and independence of the Council that will command more support of the public. The guidelines issued in relation to specific offences has made all attempts to clarify how to approach sentencing in various offences. However, the guidelines in relation to general principles of sentencing Seriousness and Reduction in sentences for guilty plea has been far from perfect. In the light of criticisms, the SGC is now planning to further clarify the later guideline and issued a consultation paper on this. This is really an appreciable step. However, no such step has been taken in relation to Seriousness guideline which is one of the most important principle governing sentencing practices in England and Wales. It is hoped that the Council will soon attempt to clarify this guideline which will inform not only sentencers but also the public what is the primary goal of sentencing in the new sentencing framework of 2003 Act and go a long way to put back sense into sentencing.
Andrew Ashworth, Sentencing and Criminal Justice (2005) 4th edition
Susan Easton and Christine Piper Sentencing Principle and Policies, (2005)
M. Tonry [2002} “Setting sentencing policy through guidelines” pp.75-104, p 83; in Reform and Punishment: The Future of Sentencing edited by Sue Rex and Michael Tonry. Willan Publishing: Cullompton, Devon.
Making Punishment Work: Report of A Review of Sentencing Framework fo England and Welsh (2001)
Justice For All (cm5563) (2002)
(Home Office press release 9/5/05, ref.130/2003)
Glenna Robson, The Sentencing Guidelines Council: A Stable or a Wobbly Bridge? (2004) 168 JPN 975,
Glenna Robson, Another Ride on the Legislative Helter-Skelter (2005) 169 JPN 151
Glenna Robson, Thinking the Unthinkable: Judging the Judges (2004) 168 JPN 512
Glenna Robson, Guidelines are Coming: A Reason to be Cheerful? (2004) 168 JPN 613
Glenna Robson, Moving the Deckchairs Again (2006) 170 JPN 691
Ed Cape SENTENCING ADVISORY PANEL Crim. L.R. 2003, AUG, 495
Speeches of Lord Woolf, Making Sense of Sentencing, 12 May 2005
Andrew Von Hirsch and Julian V, Roberts, Legislating Sentencing Principles: The provision of the Criminal Justice Act-2003 relating to sentencing purposes and the role of previous convictions Crim L. R 2004, 639-652
Ed, Sentencing and Guilty Plea Crim. L.R. 2007, MAR, 191-192)
Alec Samuels, The Effect Of The Advice Of The Sentencing Advisory Panel Upon The Form Of Judgments JoCL 68 (45)
Mathew Gullick, Cutting back on custody 155 NLJ 220
Paul Firth, Special offer–one third off 156 NLJ 1278
Aramah (1982) 4 Cr App R(s) 407
Fraser  4 Cr App R (S) 254
Archer  2 Cr App R (S) 76
A-G Reference (Nos 14 of 2006 and 15 of 2006 ), R v French  EWCA crim 1335
Comment on A-G Reference (Nos 14 of 2006 and 15 of 2006, Crim. L.R. 2006, OCT, 943-948
McInerney and Keating  2 Cr App R (s) 240
R v Gisborne  EWCA Crim 2491
Comment on R v Gisborne, Crim. L.R. 2006, APR, 363-364
R. v Bowering (Kai)  EWCA Crim 3215;  2 Cr. App. R. (S.) 10 (CA (Crim Div))
R v Greenland,  EWCA Crim 1748
Comment on R. v Bowering (Kai) Crim. L.R. 2006, APR, 361-362
ss 80 and 81 of Crime and Disorder Act 1998
ss 142, 143, 148, 152, 167-172 of Criminal Justice Act 2003
Final Guidelines By the Council:
Overarching Principles: Seriousness, 16 December 2004
New Sentences: Criminal Justice Act 2003, 16 December 2004
Reduction in Sentence for a Guilty Plea, 16 December 2004
Definitive Sentencing Guideline on Robbery, 25 July 2006
Draft Revised Guideline: Reduction in Sentence for a Guilty Plea, 18 January 2007