The Decline of English Sentencing
and Other Stories
So significant have been the changes in sentencing in England and Wales 1 since the early 1970s that it is not easy to pick out the principal developments. There are now more than three times as many recorded indictable offenses 2 as there were in 1971; the average daily prison population in 1998 was some 70 percent higher (65,298, compared with 38,040 in 1971); and sentencing law is vastly more complicated, in that in 1971 there was little reported case law and there were few statutes. However, I attempt to provide an overview ofa quarter ofa century's developments in English sentencing policy and practice through a detailed consideration offive changes.
I begin by discussing in section I the decline ofEnglish sentencing, by which I mean the increasing tendency to divert indictable offenders from the criminal courts, which actually produced the surprising result that the English courts sentenced fewer offenders in 1996 than they did in 1971. I then describe in section II the revival ofcommunity sentences, by which I mean noncustodial sentencing options that involve some element of supervision or surveillance over offenders. The trend began in the early 1980s, but a repackaging ofthe sentences in 1991 has led to a further resurgence in their use. Over the same period a notable English invention has been the guideline judgment, now developed by the Court ofAppeal into a reasonably successful and judge-friendly method of structuring judicial discretion in various fields ofsentencing, discussed in section III. Indeed, this success may have contributed to the growing resentment among judges and magistrates about the increasingly frequent “interference” of the legislature in sentencing matters, discussed in section IV. When Parliament passed the Criminal Justice Act 1991, intended to provide the first coherent legislative structure for English sentencing, vocal sections ofthe judiciary revolted. What many commentators regarded as a veritable feast of sentencing law was devoured by the judiciary as if a rather insignificant amuse-bouche, with the Court ofAppeal destroying some provisions through wrecking interpretations, and other judges and magistrates calling