How effective are Sentencing Council guidelines on the judiciary?

Work with Offenders looks at three new reports assessing the impact of the Sentencing Council

The Sentencing Council for England and Wales was set up in April 2010 to “promote greater transparency and consistency in sentencing, while maintaining the independence of the judiciary”.

The main business of the Council is to issue guidelines on sentencing, which the courts must follow unless “it is in the interests of justice not to do so”.

The Sentencing Council is an independent, non-departmental public body, one of a considerable number of the Ministry of Justice’s arm’s-length bodies. It comprises 14 members, most of them Judges although there are also barristers, magistrates and academics. Its president is the Lord Chief Justice (currently Lord Burnett of Maldon).

The Council has responsibility in three main areas for:

1. developing sentencing guidelines and monitoring their use
2. assessing the impact of guidelines on sentencing practice. The Council may also be required to consider the impact of policy and legislative proposals relating to sentencing, when requested by the Government, and
3. promoting awareness among the public regarding the realities of sentencing, and publishing information about sentencing practice in magistrates’ courts and the Crown Court.

In all its work, the Council is required to:

• consider the impact on victims of sentencing decisions
• monitor the application of the guidelines, and
• when developing guidelines, promote understanding of, and public confidence in, sentencing and the criminal justice system.

Self-assessment

As a way of marking its 10th anniversary, the council decided to investigate the impact it has in three main areas:

1. The impact of its guidelines on the judiciary.
2. The impact on the number of prison places we need associated with changes in sentencing caused by the Council’s guidelines.
3. Whether the Council has helped our (notoriously variable) sentencing practices become more consistent.

The reports of these three investigations are, unsurprisingly, written in very technical, analytical language but are nevertheless of interest to readers.

Impact on the Judiciary

The Lord Chief Justice, in his role as President of the Council, sent out a survey to all members of the judiciary with over one thousand responding. The main findings were:

• More than three quarters of sentencers thought that sentencing guidelines had improved markedly over the years, becoming more transparent, consistent and fairer.
• Most respondents, but particularly judges (as opposed to magistrates) and sentencers who had been recruited more recently, thought the guidelines were helpful and easy to use.
• While magistrates and the judges in lower courts liked the new digital format in which the guidelines were available, Circuit and High Court judges, who because of their age and unlikely to be digital natives, were less confident, preferring a printed format.

The impact on prison places

This is perhaps the most interesting study with the Council finding that while almost two thirds (64%) of the guidelines issued regarding the sentencing of a particular offence had the desired impact, that was not the case in almost one quarter (24%) of cases (in the other 12% cases, the impact was harder to discern).

In terms of the guidelines whose impact was analysed by the Council, there were 10 offences where changes in sentencing following the introduction of the relevant guideline were related in some way to immediate custody: seven increases in severity and three decreases. The potential associated change in the requirement for prison places was estimated for 9 of these 10 offences. Overall, it is estimated that these nine offences were associated with a need for a total of around 900 additional prison places per year, by 2018. Most of this rise was attributed to new guidelines for just two offences: causing grievous bodily harm with intent and robbery.

Sentencing consistency

Disappointingly, the Council found that its guidelines had had relatively little impact on a consistent approach to sentencing across England and Wales. Research showed “mixed results”, with some studies showing increases in the levels of consistency when the relevant guidelines came into force, and others showing no change over time. However, where improvements in consistency have been found, these were small.

It is disappointing that in 2021, the administration of justice is still, to an extent, dependent on which member of the the judiciary we come before.