Sentencing Guidelines in England and Wales: Missed Opportunities?

Article excerpt

I

INTRODUCTION

In England and Wales, offenses typically have fixed maximum penalties assigned to them, usually in the form of a length of custody or fine amount, and some offenses may also have mandatory minimum sentences. (1) In addition, the available sentencing options (for example, custody, community penalty, fine, and compensation) may differ for offense type (that is, summary and indictable offenses) and for adult and youth (aged under seventeen) offenders. (2) Despite this, sentencers are afforded considerable discretion in the sentence they choose to pass.

When applying their discretion to sentencing decisions, it is intended that sentencers use legal factors such as the nature and seriousness of the offense and the defendant's criminal history. (3) The sentencer is also obligated to take into account any aggravating and mitigating factors. (4) For instance, in England and Wales, aggravating factors include the vulnerability of the victim, whether the victim was racially or religiously targeted, the offender's leading role in the offense, and her profit from the offense (5) Mitigating factors include whether the offender was provoked, the offender's minor role in the offense, and her acceptance of responsibility or show of remorse. (6) The sentencer may also have access to sentencing recommendations provided in a pre-sentence report prepared by a probation officer or other such expert. (7) Finally, sentencers may also be required to give a discount for a guilty plea, (8) and consider the "totality" of a sentence if the offender is to be sentenced for more than one offense. (9)

Research on sentencing decisions in jurisdictions such as England, Wales, and the United States, however, reveals that actual sentencing behavior can diverge dramatically from that which is intended. Evidence suggests that sentences may be based on factors such as the defendant's sex, race, and age. (10) Sentences may also be influenced by wider contextual factors, such as the court, and geographic region or jurisdiction. (11) Finally, sentences may be affected by the characteristics of the sentencer such as his race, age, education, or training. (12) Thus, discretion in sentencing appears to lead to unwanted disparities and unfairness in sentencing.

Sentencing guidelines have been introduced in some jurisdictions to focus sentencers' attention on legal factors and to promote rational and consistent decision-making, with transparency and accountability. (13) Guidelines sometimes also aim to achieve effective sentencing in terms of reducing crime and increasing public safety, as well as acting as a resource-management tool by increasing the cost-effectiveness of sentences. Finally, guidelines may also aim to increase public understanding and confidence in sentencing, as well as victim satisfaction.

The aim of the present article is to critically review the development of sentencing guidelines in England and Wales. Specifically, it is argued that the revision of existing guidelines and the development of new ones could be beneficially informed by (1) a psychological understanding of human judgment and decision-making, (2) the experience of guideline development and implementation in other domains, and (3) listening to sentencers' views on the guidelines.

II

SENTENCING GUIDELINES IN ENGLAND AND WALES

A. The (Old) Sentencing Guidelines Council and the (New) Sentencing Council

In England and Wales, under provisions made by the Criminal Justice Act 2003, (14) since March 2004, sentencing guidelines were produced by the Sentencing Guidelines Council (SGC) after recommendations from the Sentencing Advisory Panel (SAP). However, these bodies were replaced by the Sentencing Council (SC) in April 2010 following provisions made by the Coroners and Justice Act 2009 (2009 Act). (15) As with the SGC, the SC has representation from all the major interested parties, including victim services, police, prosecution, magistrates' court, and Crown Court. …