Do the guidelines actually work?

Do the guidelines actually work?

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Parliament obviously think so. Much of the Court of Appeal think so (or so their judgments often suggest). Many practitioners do not.

The Council’s aim is to promote consistency in sentencing. Unfortunately, there are some quarters of the legal profession who think that the current system does exactly the reverse.

The ‘middle ground’

After the 2011 riots, Lord Justice Leveson, the Council’s Chair, defended the sentences handed out to the rioters. In doing so, he explained the work of the Council. He acknowledged that many of the sentences were more severe than those recommended in the guideline: “What we are trying to do is capture the middle ground, and I think most people would probably say that the sort of riots that we saw in August don’t fall within the middle ground at all.”

Arguably it is the ‘middle-of-the-road’ cases, e.g. the typical dwelling burglary, or your standard Saturday night pub fight, are the sorts of cases which the courts need little if any guidance; courts see those sorts of cases all the time and many merely pay lip service to the guidelines.

The tick-box system

A criticism of the current approach is that it is mechanistic and unhelpful. The reason for this is that the task of identifying the presence of factors requiring an upward or downward adjustment fails to appreciate the necessary second step in a sentencing exercise – how much weight do you attribute to each factor?

Consider a domestic burglary which attracts a starting point of 12 months. Identify the aggravating factors as a) vulnerable victim, b) sentimental goods taken, c) house ransacked, and the mitigating features a) good character, b) no damage caused on entry.

Is each of those worth a 6 month increase/decrease? Of course not. It is necessary to assess the impact of each and attribute the appropriate weight to determine the correct sentence in each case.

An alternative?

Looking back at the riots, the red tape prevented the Sentencing Council from producing guidance on the sentencing of offenders involved in the disturbances. The way in which the Court of Appeal dealt with the rioters in R v Blackshaw and Others, the first of the riot appeals to be heard, was by reference to past case law and sentencing principles.

The advantages of using comparable cases is that, when used wisely, they can be far more instructive as to how much weight each factor is to be given.  Unfortunately, until the senior judiciary call for a chance, we appear to be stuck with the categories and ranges approach.

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Lyndon is the General Editor of Current Sentencing Practice and the Criminal Appeal Reports (Sentencing)

6 COMMENTS

  1. Disagree with you on this . Structured decision-making the only way to bring about consistency of approach. Do you really think the Court of Appeal’s draconian approach to the riot appeals provides the way forward.? You should read Andrew Ashworth in the February 2012 CLR

    • With the guidelines in there current form, there is no assistance as to how to attribute weight to the factors that are present. The guidelines are mechanistic and in many cases prohibit a sentencer from imposing a sentence which properly reflects all the facts.

      Many cases are not within the guidelines and so judges resort to comparable cases for assistance. Comparable cases provide assistance for all factors in all cases.

      Consistency comes through imposing the correct sentence and the only way to do that is to move away from the guideline approach in my view.

  2. I agree with little of what is written above, but statistically there is some evidence to suggest that the guidelines are not working. When we look at case receipts generally in the Crown Court we see that they are falling significantly. Yet when we look over the same period at sentence appeal receipts in the Court of Appeal we find that they are rising (5176 in 06/07 to 5481 in 10/11). Of course there may be other reasons for this.. The period coincides to the evolution of sentencing guidelines. I would tentatively suggest that this trend is in the wrong direction. However, the situation is far more complex than that, so the question of whether the guidelines “work” will have to await a proper detailed academic analysis in due course.

    • Thanks for your comment Andrew. I would be interested to hear whether you agree with me that comparable cases provide more assistance to the sentencer than following the step by step guideline approach. Also, I would be keen to hear what you disagree with and why.

      The piece was aimed at briefly highlighting some of the more common criticisms of the guideline system and to offer an alternative approach. You may note that while I give my opinion as to their usefulness, I don’t conclude that they are not working.

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