Sentence Appeals in England: Promoting Consistent Sentencing through Robust Appellate Review

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2. Guidelines and Excessive-Sentence Review

With regard to the guidelines, the Court of Appeal exercises its lawmaking role when it issues guidelines or makes changes to existing guidelines, while its enforcement role involves both procedural review--to ensure that the guidelines are properly applied and proper procedures followed--and substantive excessive-sentence review. Although these functions have separate purposes, they are often linked because the Court often uses its excessive-sentence review to enforce both its own guidelines and the Definitive Guidelines of the Council.

Since 2003, the primary institution responsible for developing and issuing guidelines has been either the Sentencing Council or its precursor, the SGC. However, sentencing guidelines have existed in England since the 1970s, when the Court of Appeal began to issue guidelines, in the form of "guideline judgments." (191) It did so "as a means of providing assistance to Crown Court sentencers in the disposal of particular types of offence, mainly the most serious forms of crime which attract long prison sentences." (192) Most guidelines judgments issued by the Court of Appeal are "based on the existing practice of the Court of Appeal and are intended to provide a convenient restatement of ... practice." (193) These judgments often summarize past precedent to provide more accessible and "general guidance on how a particular type of crime should be dealt with." (194) Some guidelines judgments go further, though, and are "intended to signal a change of the practice of the Court of Appeal," often "in light of changes in the law or public attitudes." (195)

English scholars appear to accept that, "in strict terms," the Court of Appeal's guideline judgments are "massive obiter dicta, since much of what is said is not essential to the decision in the particular case." (196) But it is also quite clear that this does not lessen their binding nature. English observers agree that the mere fact that these judgments are issued by the Lord Chief Justice provides them with an air of authority. (197) Furthermore, "[t]hese judgments ... were intended to bind lower courts, and were treated as doing so." (198)

Regardless of the institution generating them--the Court of Appeal or the Sentencing Council--guidelines in England take a similar tariff-type format. (199) They usually identify degrees of harm and/or culpability for specific crimes, correlate these with sentencing ranges and starting points, and provide examples of mitigating and aggravating factors that suggest when a sentencing court should impose a sentence either below or above the starting point. (200) As an example, a person convicted of aggravated burglary in England is subject to a maximum sentence of life in prison. (201) The Definitive Guideline indicates an "offence range" for aggravated burglary of from one to thirteen years. (202) This means that it will usually be appropriate to sentence an offender convicted of aggravated burglary to a term of between one and thirteen years. (203)

The Definitive Guideline then breaks up the offense of aggravated burglary into three specific categories based on application of various exhaustive factors relating to level of harm and culpability, such as whether the victim was on the premises at the time of the burglary and whether violence was used or threatened. Each category has its own "category range," the lowest being one-to-four years and the highest nine-to-thirteen years. The Guideline also sets a "starting point" for each of these categories, the lowest category having a starting point of two years, and the highest of ten years. Once the category range and starting point are determined, the Guideline then lists various aggravating and mitigating factors that suggest a sentence higher or lower than the starting point. Examples for aggravated burglary include "Gratuitous degradation of victim" and "Good character and/or exemplary conduct. …