- Gavin Dingwall
This chapter examines sentencing policy and practice. The discussions cover the evolution of sentencing policy 1991–2011; consistency in sentencing; providing guidance to sentencers; ethnicity and sentencing; and gender and sentencing.
Few areas of criminal justice attract the level of media scrutiny, political frenzy and sporadic popular outrage as the sentencing of offenders. It is strange then that criminologists have less to say on the subject than on many other aspects of criminal justice. This neglect though is comparative and not absolute. There remains a vast literature and choices have had to be made as to what to include and, as importantly, what to exclude from this chapter.
This process of selection was not as difficult as might be expected as certain key issues and debates stood out for inclusion. These included the development of sentencing policy over the past 20 years; consistency in sentencing; ways of responding to disparity; and, finally, issues of ethnicity and gender in sentencing. Sentencing is a legal process and this means that knowledge of relevant legal principles is necessary, at least at a basic level. Sentencing law is found both in a surprising number of Acts of Parliament and in a host of reported cases. This chapter is written primarily with criminal justice students in mind. Although an overview of the sentencing process is provided, only brief mention is made of the most important statutory provisions and case law is not referred to. The recommended sources at the end of the chapter include two texts (Ashworth, 2010; Easton and Piper, 2012) which will provide this detail if required.
Sentencing relates to the process of imposing a punishment on an offender in a criminal court. This chapter is concerned with the sentencing of adult offenders by the courts in England and Wales (another chapter deals with youth justice). This is a large scale enterprise: 1,300,309 offenders were sentenced in 2011 (Ministry of Justice, 2012: table Q1.1).
Sentencing is a highly political issue. A 2008 Sentencing Commission Consultation Paper listed 56 Acts of Parliament between 1993 and 2007 which have had a significant effect on sentencing (Sentencing Commission Working Group, 2008, Annex K). Both the Conservative Party (who were in government between 1979 and 1997) and the Labour Party (who were in government between 1997 and 2010) tried to convince the electorate of their ‘law and order’ credentials. The way in which they attempted to do this was crude and involved little more than raising the punitive bar a notch higher than their opponents. This worryingly simplistic approach rested on a belief that the public do not think that the sentences imposed by the courts are sufficiently severe (see further Roberts and Hough, 2002; Smith, 2007). The future direction of sentencing policy is not as clear since a Coalition Government was formed in 2010 between the Conservatives and the Liberal Democrats. Traditionally these parties have advocated quite distinct approaches to penal policy although it is striking how little was said on criminal justice in either party’s manifesto for the 2010 General Election (Conservative Party, 2010: 56; Liberal Democrats, 2010: 74–5).
Criminologists are interested in a number of aspects of sentencing. For example, studies have shown that judges can impose very different sentences for similar offences (Mason et al., 2007) and some have tried to explain why this might be the case and to explore ways in which such disparity might be reduced (e.g. Dingwall, 2006/07). Another concern has been that female offenders and those from minority ethnic backgrounds appear to receive sentences that differ from White male offenders (e.g. Dowds and Hedderman, 1997; Hood, 1992). Both of these themes will be explored further in this chapter. Lawyers also research sentencing but their focus is usually different. Often legal research involves the study of relevant Acts of Parliament and cases in order to understand the relevant law and how it should apply (e.g. Hungerford-Welch, 2004: Chapter 14). How the law should apply and how the law does apply are not always the same thing though and this has led some legal scholars (e.g. Ashworth, 2010; Easton and Piper, 2012) to analyse sentencing in a broader social context. This is often referred to as a socio-legal research approach.
This chapter will not be concerned about community penalties or custody once a decision has been taken to impose such a sentence. There are chapters on both in this book. One cannot though totally divorce discussions about community penalties and custody from sentencing. If, for example, sentencers perceive community penalties to be insufficiently punitive that might explain in part why they appear so keen to use imprisonment instead. Similarly, ‘justifications’ for punishment, such as deterrence and rehabilitation, are addressed elsewhere in this volume. When a sentence is designed with a particular objective in mind—for example public protection—consideration will not be given here to whether or not the literature suggests that punishment can achieve that particular aim. It would though be misleading to claim that sentencing reform is always evidence-based. As Tonry comments:
[Focus] groups, tabloid front pages and political advisors have had more influence on government proposals and policies than have criminal justice professionals, systematic evidence or subject-matter experts. (Tonry, 2004: 3)
An overview of the sentencing process
The first important consideration is the court which hears the case. This depends primarily on the seriousness of the offence charged (see Cammiss, Chapter 5, this volume). If the defendant is convicted, or more commonly pleads guilty, he will usually, though not always, be sentenced by the same court. Although guilt or innocence is decided by a jury in the Crown Court, if the jury convict the defendant they have no say whatsoever about the subsequent sentence (see Cammiss, Chapter 5, this volume).
Ashworth (2007: 1004) identifies five sources of information that assist sentencers: the police antecedents statement; the defence plea in mitigation; a pre-sentence report; a medical report; and the offender’s own appearance in court. Details about previous convictions or cautions are taken from the Police National Computer so that the sentencer is aware of the offender’s past behaviour. In certain situations a pre-sentence report has to be obtained. In England and Wales the prosecutor does not advocate any particular penalty although there is a duty to highlight any aggravating or mitigating factors which make the case either more serious or less serious than normal. The defence do have the opportunity to try to influence the sentencer with a plea in mitigation, the purpose of which is to persuade the sentencer to be lenient by drawing attention to anything about the offender or the offence which should be looked at favourably.
By far the most common mitigating factor is a guilty plea (also see Cammiss, Chapter 5, this volume). This ordinarily results in a reduction of between a third and a tenth of the sentence depending on the stage where the defendant indicated that she would plead guilty (Sentencing Guidelines Council (SGC), 2007b: para 4.2). In some situations a guilty plea can make the difference between the types of punishment imposed. Rewarding a guilty plea is controversial. If an offender is rewarded for admitting guilt, it follows that a defendant who pleads not guilty and is subsequently convicted will receive a harsher sentence. Yet the defendant is merely exercising his/her legal right: it is for the prosecution to prove the defendant’s guilt beyond reasonable doubt. The allied danger is that an innocent individual may feel under enormous pressure to plead guilty knowing that the consequences of a conviction after trial would be worse. Are there any arguments which could be used to support a discount for a guilty plea? The traditional justification is that admitting guilt demonstrates remorse. This assumes both that the reason behind the plea is remorse—many offenders simply have no realistic defence—and that, even if there is genuine remorse, this should be treated favourably. A more pragmatic (and the official) rationale might be that it expedites the criminal justice process by reducing the number of trials and also spares victims and witnesses from having to testify (SGC, 2007b: para 2.2).
Aggravating and mitigating factors can have a significant impact on sentence. A census of 36,093 sentences imposed by the Crown Court between October 2010 and March 2011 undertaken by the Sentencing Council found that for offenders with four or more aggravating factors but no mitigating factors, 96 per cent received an immediate custodial sentence, whilst for offenders with four or more mitigating factors but no aggravating factors, 12 per cent were sentenced to immediate custody (Sentencing Council, 2011: table 1.41).
The main penalties that can be imposed by the court are: imprisonment; a community order; a fine; a conditional discharge; an absolute discharge; and a compensation order. These penalties effectively form a scale, often referred to as the tariff, depending on their relative seriousness. The idea is that the court should impose a punishment that is proportionate to the seriousness of the offence. Just as it would be inappropriate to imprison someone who committed a minor offence, it would be unjust to fine someone who committed a serious offence. By far the most common punishment imposed is the fine (65.5 per cent of total sentences in 2011: Ministry of Justice, 2012: table Q1.2) which demonstrates that most crime is relatively minor in character. Immediate custodial sentences represented 7.9 per cent of sentencing outcomes in the same period (ibid: table Q1.2). The term ‘tariff’ can have another meaning in sentencing, as will be discussed later, but it is usually obvious in which sense it is being used.
Sentences from magistrates’ courts can be appealed to the Crown Court (Magistrates’ Court Act 1980, s.108) whilst those from the Crown Court can be appealed to the Court of Appeal, provided the Court of Appeal gives leave (Criminal Appeal Act 1968, s.9). In practice, the Court of Appeal seldom gives leave and few sentencing appeals succeed (Hungerford-Welch, 2004: 512–15). If an appeal from either court is successful the original sentence may be quashed and replaced with one that is more appropriate (Supreme Court Act 1981, s.48(2); Criminal Appeal Act 1968, s.11(3)). The Attorney-General (the chief legal advisor to the Crown in England and Wales) has the controversial right to challenge unduly lenient Crown Court sentences (Criminal Justice Act 1988, ss.35 and 36). All indictable offences can be challenged on this ground as can a limited number of triable either way offences but the case law shows that the Court of Appeal seldom increase sentences, partly due to a desire to maintain judicial discretion (see later) and partly because it is seen as undesirable as a matter of principle to increase sentences, save in the most extreme cases.
What is meant by an aggravating factor and a mitigating factor?
What are the arguments for and against rewarding the sentence of those who plead guilty?
Who has the right to challenge an ‘unduly lenient’ sentence?
The evolution of sentencing policy 1991–2011
The Criminal Justice Act 1991 provides the most obvious starting point for any analysis of recent sentencing policy (for lengthier analyses see Easton and Piper, 2012; Koffman, 2006). According to the Act, sentences were primarily to be calculated with regard to the gravity of the offence (there were exceptional provisions relating to ‘dangerous’ violent and sexual offenders). The Act gave sentencers little guidance on how to calculate seriousness but it was clear that the harm caused by the offence was key. Characteristics of the offender could be taken into account but only in so far as they mitigated or aggravated the seriousness of the offence. Having come to a conclusion about the seriousness of the offence, sentencers were then meant to impose a proportionate punishment.
Commentators generally welcomed the Act. Koffman comments (2006: 285) that retributivism had almost become a ‘new orthodoxy’ by the late 1980s as penologists recognised ‘the failure (and potential injustice) of deterrent sentencing, the discriminatory nature and arbitrariness of rehabilitative and indeterminate sentencing, and the problems of prediction and lack of proportionality inherent in incapacitative sentencing’. There was a belief that focussing on the offence would lead to greater consistency and fairness and that a proportionality requirement would reduce the use of imprisonment for more minor offences. Overcrowding in prisons, which had led to rioting in some institutions, meant that there were both philosophical and pragmatic reasons for introducing the legislation.
Although academic commentators generally regarded the Act as principled and progressive, judicial criticism was fierce and immediate. Their primary concern related to the restrictions placed on their previous discretion. One of their main complaints was that they could no longer decide whether previous convictions had any relevance. Sustained pressure led to the Criminal Justice Act 1993 amending the 1991 Act so that sentencers could once again take account of offenders’ previous convictions.
Accounting for these rapid and significant policy reversals demonstrates the impact that party politics has on criminal justice. The Labour Party, who by this time had been in opposition for more than a decade, came to the conclusion that their approach to criminal justice was an electoral weakness and would have to be revised. By now Tony Blair was shadow Home Secretary and he sought to convince the electorate that the opposition would be ‘tough on crime, tough on the causes of crime’ if elected. This amounted to a direct challenge to the Conservative Party’s traditional claim that they were the party of ‘Law and Order’. Previous governments had been able to introduce criminal justice legislation with little political opposition but from now on both the Conservative government and the subsequent Labour government were extremely wary of introducing any sentencing measure that could be portrayed as unduly lenient by the press or by political opponents.
The next significant Act, the Crime (Sentences) Act 1997, returned to the theme of persistent offenders. It provided mandatory sentences for repeat Class A drug dealers, domestic burglars and those who committed specified serious violent or sexual offences unless it was ‘unjust to do so in all the circumstances’. This development was treated with dismay. It was, and is, widely accepted that mandatory sentences ‘always produce unwanted side-effects of arbitrariness, injustice in individual cases, hypocritical efforts at circumvention and extreme sentencing disparities’ (Tonry, 2004: 17).
The most radical and far-reaching changes came in the Criminal Justice Act 2003 (see Ashworth and Player, 2005; Koffman, 2006). Drawing largely on the recommendations of the Halliday Committee (Home Office, 2001), which reviewed the existing framework, the Act stated that a sentence should take account of a number of factors: namely the punishment of offenders; the reduction of crime (including its reduction by deterrence); the reform and rehabilitation of offenders; the protection of the public; and the making of reparation by offenders to persons affected by their offences (s.142(1)). The thrust of the policy is clear. In terms of penal theory, there has been a move away from retribution to an inclusive approach which encompasses several utilitarian justifications for punishment (see Scott, Chapter 7, this volume).
Any short overview of sentencing policy is misleading, yet a comparison of the Criminal Justice Acts of 1991 and 2003 demonstrates two very different approaches. An Act which stated that (ordinarily) individuals had to be sentenced on the basis of the seriousness of the offence has been replaced by an Act which requires sentencers to try and balance a number of competing justifications. Save in situations where it would be ‘unfair’, ‘seriousness’ now includes not only a requirement that the offender’s previous conviction(s) are considered but that the sentence should be increased on that basis. Some fundamental principles from the 1991 Act remain in place (see further Dingwall, 2008): the tests for imposing a custodial sentence, a community sentence or a fine remain dependent on the seriousness of the offence, albeit with the proviso that persistence is now part of the calculation. One trend which is beyond dispute is that governments of whatever political hue have become far more willing to legislate on sentencing matters, often for political gain and without regard to the overall coherence of sentencing policy.
A further recent example of how politics impacts on sentencing relates to the mandatory sentence of life imprisonment for murder (Murder (Abolition of Death Penalty) Act 1969). When the Law Commission (2006) were asked to review the law of murder, they were expressly forbidden from considering the mandatory sentence. If one wanted to review the law of murder, having a mandatory sentence would surely be worthy of debate. Traditional claims that such a sentence deters or protects the public could be tested. So could the idea that only a life sentence can reflect the gravity of the offence.
Any evidence-based review would challenge many of these assumptions. Take the claim that the mandatory sentence acts as a deterrent. There is a considerable body of research into the deterrent effect of the death penalty in other jurisdictions and the consensus is that it has no discernible effect on homicide rates (Donohue and Wolfers, 2005). If the death penalty does not act as a deterrent, it is difficult to see how a mandatory sentence of life imprisonment would. The notion that a mandatory life sentence is necessary to protect the public is also suspect. Implicit to this argument is the notion that that murderers would re-offend if at liberty. Some would. Some though pose no risk whatsoever—many released murderers live law-abiding lives. Indeed, murderers have the lowest reconviction rates of all offence types. The difficulty, if there is to be any system of parole, is to try and determine which offenders pose a risk and which do not. Nor should it be forgotten that a lengthy discretionary custodial sentence offers public protection. The question is whether a mandatory sentence is the most appropriate mechanism to achieve this aim.
This evidence would at least suggest that the Law Commission should have considered the necessity of a mandatory life sentence. Why then were the government adamant that they could not do so? There is an undoubted symbolism attached to the sentence: murder, as the most serious offence in English law, demands the most serious penalty. Any government which abolished the mandatory sentence would leave itself open to the charge that they were diminishing the gravity of the offence. Similarly, it would take a brave politician to explain that not all offenders pose a danger to the public. Political expediency took precedence over what would have been a welcome review of the law.
It is far more difficult to predict the future direction of sentencing policy under the Coalition Government. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 contains a number of changes to sentencing. Some might appear minor. Courts now have an express duty to consider making compensation orders (s.63) where victims have suffered harm or loss and the detailed requirements regarding how sentencers should give reasons for the sentence imposed have been abandoned (s.64). Some of the proposals though are more far-reaching. Most notably, courts would be granted the power to suspend sentences for up to 24 months rather than 12 months (s.68). These changes, along with provisions relating to bail contained in the Act, suggest a desire to reduce the reliance on custody. At a time when the government is committed to a drastic programme of cutting public expenditure, this is understandable.
Alongside the Act, the Government published a Green Paper entitled Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders (Ministry of Justice, 2010). As the name suggests, this document argues the case for giving rehabilitation a more prominent role in the criminal justice system. The most radical (and controversial) proposals relate to the delivery of rehabilitative programmes rather than any changes to how offenders would be sentenced. Indeed, for all its alleged boldness, no specific changes are proposed to s.142 of the Criminal Justice Act 2003. This means that sentencers would still consider all of the purposes listed in the 2003 Act and rehabilitation would not be afforded any primacy. Whether a shift to rehabilitation would be desirable depends upon one’s personal views both on the purposes of punishment and also on the extent to which one believes that rehabilitation can be achieved in a criminal justice context. Two political factors may determine whether this shift occurs. The Green Paper was published during Kenneth Clarke’s tenure as Justice Minister. He, unlike Chris Grayling who replaced him in late 2012, comes from the liberal wing of the Conservative Party. Many in this party do not share his views on criminal justice and the appointment of Grayling appears to have been designed to reassure the party of its tough stance on crime. Under such conditions, it is unlikely that the rehabilitation revolution, whatever that might have been, will continue. Second, current economic factors may favour a policy that reduces the use of imprisonment but if crime rates begin to rise or extraordinary events occur such as the 2011 summer riots, political pressure may force a policy reversal.
What factors are sentencers to have regard to according to the Criminal Justice Act 2003?
Why was the Labour Government so pre-occupied with persistent offenders?
To what extent do the sentencing proposals in Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders (2010) represent ‘a bold vision for more effective punishment’?
Consistency in sentencing
A perennial question is whether individuals who commit similar offences receive similar sentences? This deceptively simple question raises a fundamental concern: if offenders who commit like offences receive radically different sentences there would appear to be obvious injustice. All offences have a maximum punishment that can be imposed but these are often extremely high and are seldom used. According to the Daily Telegraph (11 December 2006), only 2.5 per cent of those sentenced in the Crown Court and 2 per cent of those sentenced in the magistrates’ courts received the maximum penalty. Very few offences carry a mandatory penalty (see above for some notable exceptions). This leaves the question of what factors must sentencers take into account when determining appropriate sentences. Section 142(1) of the Criminal Justice Act 2003 requires sentencers to have regard to the following considerations: the punishment of offenders; the reduction of crime (including its reduction by deterrence); the reform and rehabilitation of offenders; the protection of the public; and the making of reparation by offenders to persons affected by their offences.
This list appears to give sentencers considerable scope (see Ashworth and Player, 2005). Two sentencers could both ‘have regard’ to the aims and there would appear to be nothing stopping one of them prioritising public protection and the other rehabilitation. The Home Office saw the task as a balancing act:
Sentencers will be required to consider these purposes when sentencing and how the sentence they impose will provide the right balance between the purposes set out above, given the circumstances of the offence and the offender. (Home Office, 2002, para 5.9)
However, even if all sentencers did attempt to balance all of these aims (and that is far from certain), the ensuing sentences could still look very different. In order to test the consistency of decision-making, the next section will consider the use of custodial sentences.
Consistency and the custodial threshold
One of the most important decisions that a sentencer can make is whether an offender should receive a custodial sentence. There are a number of external pressures that may influence sentencers making such a decision including popular perceptions of different types of punishment and the problem of prison overcrowding (see Millie et al., 2007), but the legal test is found in s.152(2) of the Criminal Justice Act 2003:
The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.
This leaves the question of whether sentencers interpret the section consistently. National statistics suggest that there is considerable variety in the use of custody, suggesting that there is at least a degree of ‘justice by geography’ (see also Cammiss, Chapter 5, this volume). Across the 42 criminal justice areas, Warwickshire had the highest immediate custody rate at all courts in 2011 (18.0 per cent) with Gwent the lowest (11.6 per cent) (Ministry of Justice, 2012, table A5.50). There may be legitimate reasons why the use of particular punishments would vary between areas—for example to reflect differences in the nature and seriousness of the offences being sentenced. There is though the possibility that the differences are the result of arbitrary and inconsistent decision-making. Statistical analysis (Mason et al., 2007) supports these concerns suggesting that discrepancies cannot wholly be explained by factors such as offence severity.
Many offences, of course, pose sentencers with few problems; they are either so trivial that no one could sensibly argue that the test has been met or so serious that the test is easily satisfied. It is instructive though to consider the sentencing patterns for a comparatively common offence which does cause more difficulties. Is burglary an offence which is so serious that ‘neither a fine alone nor a community sentence can be justified’? The official statistics show that 48.2 per cent of those sentenced for the offence received a sentence of immediate custody in 2011 (Ministry of Justice, 2012, table Q1.6) whilst a further 11.0 per cent were given a suspended sentence order (Ministry of Justice, table Q1.6). To complicate matters further, these rates also vary by area: in neighbouring magistrates’ courts, 32.5 per cent of those sentenced for domestic burglary in 2011 in Manchester received a custodial sentence compared to 11.5 per cent in Salford (Ministry of Justice, 2012: volume 4, part 2, table S4.5). These figures demonstrate just how borderline the offence is: it would be hard to predict in any given case whether the offence would be judged to be so serious that only custody can be justified.
Although this position may lack certainty, sentencers would maintain that they need room to manoeuvre as some cases are more serious than others. Similarly, they would highlight the individuality of each offender and argue that account should be taken of any particularly relevant characteristics of the offender, such as old age or drug addiction (for the views of a lawyer see Cooper, 2008). No one pretends that it is easy to strike a balance between allowing judges sufficient discretion to arrive at a just sentence in any given case with the need to ensure that sentences for like offences are broadly similar.
What factors should a sentencer have regard to when determining sentence?
Why might balancing these factors give rise to inconsistency?
What evidence is there to suggest that there is inconsistency in sentencing?
Providing guidance to sentencers: from ‘guideline’ judgments to the Sentencing Council
Traditionally the Court of Appeal issued ‘guideline’ judgments on sentencing some offences (see Ashworth, 2001; Dingwall, 1997). This approach was not wholly successful as the guidance tended to concentrate on serious offences and not on those more common offences which could be classified as moderately serious, such as burglary. In part this could be explained on the basis that the Court of Appeal only hears sentencing appeals from the Crown Court but this merely demonstrates an inherent limitation with using Court of Appeal judgments as the primary source of guidance as common, more minor offences will not be considered.
There was some guidance on summary offences. The Magistrates’ Court Sentencing Guidelines (2004) provided magistrates with the maximum available sentence for each offence, along with a guideline penalty, some factors that may mean that the guideline should be departed from, and the impact that any other relevant factors should have. In practice these were very important given the proportion of offenders sentenced in magistrates’ courts even though the guidelines had no legal authority and were purely advisory.
Since 1998 three new bodies have been created which have transformed the way in which sentencing guidance is delivered. The Crime and Disorder Act 1998 created the Sentencing Advisory Panel. The Panel’s task was to provide the Court of Appeal with information to assist them in drafting guideline judgments. The Court of Appeal was under no obligation to follow the advice offered. Following a recommendation in the Halliday report (Home Office, 2001), a Sentencing Guidelines Council was created in the Criminal Justice Act 2003. This body, which continued to work in tandem with the Sentencing Advisory Panel, drafted ‘definitive’ guidance on the sentencing of particular offences or on particular sentencing concerns. Every court had to ‘have regard to’ these guidelines (s.172(1), Criminal Justice Act 2003). The membership of the Council included individuals with experience of policing, criminal prosecution, criminal defence and victim support (s.167, Criminal Justice Act 2003) which meant that this was the first time people other than sentencers were involved in the drafting of guidelines.
Following the Coroners and Justice Act 2009, the Sentencing Advisory Panel and the Sentencing Guidelines Council have been replaced by the Sentencing Council. This body has been charged with creating guidelines which every court must follow ‘unless the court is satisfied that it would be contrary to the interests of justice to do so’ (s.125(1), Coroners and Justice Act 2009).
An evaluation of the Sentencing Council
If the only criterion by which the Council was to be judged was the need to achieve greater consistency in sentencing, it would appear easy to assess how successful it had been. All that would be required would be a statistical analysis of sentencing trends for a particular offence prior to and after the Council’s guidance became operative. However, their remit is broader which makes evaluation more problematic. Dingwall (2006/07: 14–15) has argued that ‘[sentencing] guidance has…not only to provide guidance, in the hope of obtaining consistency, but has to account for the guidance in the hope of achieving justice’. Three forms of potential injustice were identified: a failure to achieve like sentences for like offences; a failure to differentiate between individuals who commit the same offence but with different degrees of culpability; and a failure to reflect differences in seriousness between different offences (Dingwall, 2006/7: 15).
The first concern—consistency—can be measured statistically, although this would not be easy (Wasik, 2008: 259–260), and the results in themselves may be of little value. If the guidelines are simplistic, then the ‘correct’ sentence may be easy to determine. However, the cruder the advice the less likely it is to be suitable for all cases and the greater the risk that sentencers will depart from it. Conversely, more nuanced guidance may result in what appears to be a higher degree of inconsistency but in fact increases the likelihood of an appropriate and/or a judicially acceptable sentence being imposed.
The second concern that was identified was the need for guidance to differentiate fairly between individuals who commit the ‘same’ offence but with different degrees of culpability. Guidance which fails to do this is ultimately unjust in that offenders who commit the same crime in legal terms often do so in very different circumstances.
Robbery will be taken as an example to consider how successfully the guidelines achieve this aim. The Council differentiates the offence into five types (SGC, 2006: section C): street robbery; robberies of small businesses; less sophisticated commercial robberies; violent personal robberies in the home; and professionally planned commercial robberies. The first three categories are judged to be equally serious and are further subdivided into three levels of severity depending on the gravity of the threat and/or the degree of force used (SGC, 2006: section D). A grid is then provided (shown here as Table 7.1) which indicates the appropriate starting point and range (SGC, 2006:
Table 7.1 Guidelines for the offence of robbery
Type/nature of activity
The offence includes the threat or use of minimal force and removal of property.
12 months’ custody
Up to 3 years’ custody
A weapon is produced and used to threaten, and/or force is used which results in injury to the victim.
4 years’ custody
2–7 years’ custody
The victim is caused serious physical injury by the use of significant force and/or use of a weapon.
8 years’ custody
7–12 years’ custody
section G—violent personal robberies in the home and professionally planned commercial robberies were not included in the grid).
The third concern, that guidelines have to reflect differences between offences, matters for two reasons. First of all, the Criminal Justice Act 2003 stated that ‘seriousness’ remained relevant to sentencing (Dingwall, 2008). Secondly, there is a risk that individual guidelines lose sight of the bigger picture: it is not enough to determine how one robbery should be sentenced with reference to other robberies, it is also necessary to assess how robbery should be sentenced in comparison to other types of offences.
General guidance has been provided on seriousness (SGC, 2004). The guidelines state that ‘[harm] must always be judged in the light of culpability’ (SGC, 2004: 1.17) but recognise that ‘[assessing] seriousness is a difficult task, particularly where there is an imbalance between culpability and harm’ (SGC, 2004: para 1.14). No one doubts this, but to what extent do the guidelines offer genuine assistance? It is worth returning to the crucial question of whether an offence is so serious ‘that neither a fine alone nor a community sentence can be justified for the offence’ (Criminal Justice Act 2003, s.152(2)). The Council claimed that ‘[it] would not be feasible to provide a form of words or to devise any formula that would provide a general solution’ and that ‘[it] is the task of guidelines for individual offences to provide more detailed guidance on what features within that offence point to a custodial sentence’ (SGC, 2004: para 1.37, italics in original). What this means is that the general guidance on seriousness becomes dependent upon the guidance for particular offences. As a consequence, no overall consideration is given to the relative severity of different offences. The danger of this approach is shown by comparing the guidance for robbery (SGC, 2006) with the guidance issued for sexual offences (SGC, 2007a). Combining the two, a level three street robbery merits an identical sentence to a sustained rape or a rape involving more than one offender. It would appear that this demands an explanation.
Why is it difficult to evaluate sentencing guidelines?
Why is it necessary to determine the relative severity of different offences?
Can you draft guidance on when an offence is ‘so serious that neither a fine alone nor a community sentence can be justified for the offence’?
Ethnicity and sentencing
This section considers the evidence on whether offenders from ethnic minority backgrounds are discriminated against at the sentencing stage. Official data show that a higher proportion of those in Black and Minority Ethnic (BME) groups were sentenced to immediate custody for indictable offences in 2010 compared to those in the White group (Asian 30.6 per cent, Black 28.2 per cent, White 24.6 per cent and Other 42.8 per cent; Ministry of Justice, 2012: 54). Such discrepancies demand an investigation of the extent to which the differences can be explained in whole or in part on the grounds of ethnicity. Earlier studies were inconclusive (Hudson, 1993: 6–8). Researchers identified a number of factors which could be relevant such as: discrimination earlier in the criminal justice process; other social-personal factors such as relative rates of unemployment; the higher proportion of Black defendants who elect trial by jury, thereby increasing their possible sentences after conviction; and the smaller proportion of Black defendants who plead guilty (Hudson, 1993: 7). One of the main reasons why the early research was often inconclusive was because the small samples only allowed tentative conclusions to be drawn (Dholakia and Sumner, 1993: 36).
The most detailed study was undertaken by Hood (1992). The author attempted to predict the sentencing outcome in Crown Court cases in the West Midlands by considering characteristics of the offence and the offender. The offender’s ethnicity was excluded from the calculation. Hood concluded that ethnicity could not be totally disregarded when the predicted rates were compared to the actual rates of imprisonment. Taking account of other factors, there was still a 5 per cent greater probability that a Black offender would receive a custodial sentence (Hood, 1992: 78). Asian offenders generally appeared to be sentenced in the same way as White offenders (Hood, 1992). Hood himself claimed that the results needed to be treated with some caution (Hood, 1992), but the implications are profound. It is clear that the issues raised need to be carefully monitored even if the study is over 15 years old and sentencers have had more training in the interim.
Very few sentencers come from ethnic minority backgrounds. As of 31 March 2011, 8 per cent of magistrates, 5.1 per cent of District Judges, 6.5 per cent of Recorders, 2.5 per cent of Circuit Judges and 4.5 per cent of High Court Judges identified themselves as being from an ethnic minority background (http://www.judiciary.gov.uk/Resources/JCO/Documents/Stats/judicial-diversity-stats-gender-ethnicity-profession-2011.xls). Most identify themselves as Asian or Asian British.
Gender and sentencing
In common with ethnicity, there are considerable difficulties in researching the relevance of gender in sentencing. At first glance the data for 2011 (Ministry of Justice, 2012: table A5.4) would suggest that females are sentenced very favourably: 9.9 per cent of men aged over 21 received an immediate custodial sentence compared to 2.7 per cent of females. At the lower end of the spectrum, similar proportions of male and female offenders were granted an absolute or a conditional discharge (Ministry of Justice, 2012: 6.6 per cent as opposed to 6.3 per cent). Women were more likely to be fined (Ministry of Justice, 2012: 79.7 per cent as opposed to 65.3 per cent) whereas men were more likely to be given a community sentence (Ministry of Justice, 2012: 11.3 per cent compared to 7.1 per cent). Moreover, the average custodial sentence imposed on a female is 31.1 per cent shorter than the average for a man (Ministry of Justice, 2012: table A5.20). These figures though do not paint the full picture; no account is taken of offence-type or a range of other factors which may influence sentence. For example, a greater percentage of female than male offenders had no previous cautions or convictions.
The most detailed research into the sentencing of women was undertaken by Dowds and Hedderman (1997). Three types of offence were analysed. With regards to shoplifting, regardless of whether the offender had previous convictions, the authors found that ‘women were generally more likely than men to be discharged or given a probation order, less likely to be fined and less likely to be given a custodial sentence’ Dowds and Hedderman, 1997). Turning to violent offences, the trend appears similar with a disproportionate number of females being put on probation or discharged Dowds and Hedderman, 1997). An important caveat is that female offenders generally have fewer previous convictions than men (which would affect the sentencing of repeat offenders) and that female offenders are usually involved in less serious cases (which would affect the sentencing of both first time and repeat offenders) Dowds and Hedderman, 1997). These factors clearly make comparisons difficult.
This pattern proved different for drug offences where gender was not significantly associated with the use of custody (Dowds and Hedderman, 1997). The authors comment that female drug offenders appeared to be especially ‘deviant’: first time offenders were older than their male counterparts; they were more likely to be charged with a serious offence; they were more likely to be sentenced in the Crown Court; and repeat offenders tended to be older and have a history of fraud offences. When account was taken of other variables, it was found that first time female drug offenders were less likely to receive a prison sentence than male offenders whereas repeat offenders were just as likely to be imprisoned. Two important questions are raised by this study. Despite there being a tendency to imprison fewer female offenders, why is there a marked difference in the use of custodial sentences for some offences but not for others? Secondly, as men are more likely to be fined whereas women are more likely to be discharged or to receive community sentences, are some women who would have been fined being treated more leniently whilst others who receive community sentences being treated more severely than men?
It will probably come as no surprise that there are no simple explanations for these findings. Some sentencers certainly appear to stereotype female offenders. One magistrate in Gelsthorpe and Loucks’ (1997: 26) study commented that you ‘[think] of them as greedy, needy or dotty’. Gelsthorpe and Loucks concluded that the relative inexperience of female offenders and their corresponding ‘nervousness’ in court may make them appear more genuinely remorseful than male offenders who are often more experienced both in terms of offending and appearing in court (Gelsthorpe and Loucks, 1997). There also appeared to be a more marked distinction drawn between ‘troubled’ and ‘troublesome’ female offenders. Magistrates believed that a higher proportion of female offenders would benefit from a probation order (Gelsthorpe and Loucks, 1997). As has been said, this probably cuts both ways as some female offenders given probation would in all probability have been fined if they were male whilst others probably avoided a custodial sentence.
The proportion of female sentencers decreases with seniority. As of 31 March 2011, 51.1 per cent of magistrates, 25.5 per cent of District judges, 16.5 per cent of Recorders, 15.9 per cent of Circuit judges, 15.7 per cent of High Court judges and 10.8 per cent of the Lords Justices of Appeal were female (〈http://www.judiciary.gov.uk/Resources/JCO/Documents/Stats/judicial-diversity-stats-gender-ethnicity-profession-2011.xls〉).
Why is it difficult to assess the impact of ethnicity or gender on sentencing?
How might a woman’s lifestyle influence sentencing?
Does it matter that most sentencers are White men?
This chapter started with the claim that few areas of criminal justice attract the same degree of public disquiet and, at times, disbelief as sentencing. Politicians and the media appear to interpret this anxiety as a belief that sentencing is too lenient (Roberts and Hough, 2002). Yet research by Smith (2007: 12–13) found that only 4 per cent of his sample thought about lenient sentencing when deciding how confident they were about the criminal justice system; ten factors weighed more heavily on their minds. Despite this, when the sample was asked what measures would improve their confidence in the system, 44 per cent cited tougher sentencing (Roberts and Hough, 2002: 16). This suggests that there is political capital in promising tougher sentences. Different people will naturally have different opinions about whether sentences are too lenient. Nonetheless, it is worth noting that, in comparison to most other Western countries, England and Wales appears to be relatively punitive (Pakes, 2004: 121–26), that sentences have recently become more severe for many offences, and that the public routinely underestimate the sentences that the courts actually impose (Roberts and Hough, 2002).
One surprise from Smith’s study (2007: 12–13) is that the most common factor considered (by 33 per cent of the sample) when deciding about confidence in the criminal justice system was consistency in sentencing. There certainly is evidence of inconsistency but what is remarkable is the impact that this had on judgments about confidence in the system. Certainly the wide geographical differences in the custodial rate does raise concerns about injustice, as does the evidence relating to the differential sentencing of offenders from ethnic minority backgrounds (Hood, 1992). In fairness, these concerns have been recognised by the Government and it has to be hoped that the work of the Sentencing Council helps rectify the most blatant discrepancies.
It is perhaps appropriate to end with a note of caution. As long as some dangerous individuals are released only to reoffend, as long as depressing numbers of property offenders are re-incarcerated and as long as ever-escalating penalties fail to deter, the public will remain dissatisfied. It is worth asking to what extent complaints about sentencing are really complaints about the limitations of punishment.
Questions for Discussion
Should someone who pleads guilty be rewarded with a lesser sentence?
Section 142(1) of the Criminal Justice Act 2003 requires sentencers to have regard to the following: the punishment of offenders; the reduction of crime (including its reduction by deterrence); the reform and rehabilitation of offenders; the protection of the public; and the making of reparation by offenders to persons affected by their offences. How would you prioritise these aims? Explain your reasons.
Do you think that burglary is an offence which is always, sometimes, or never ‘so serious that neither a fine alone nor a community sentence can be justified for the offence’?
A and B both drink and drive. A is stopped and charged with driving when under the influence of drink or drugs. B hits someone and kills him. B is charged with causing death by careless driving when under the influence of drink or drugs. Are they equally blameworthy? Do they deserve the same sentence?
Guide to Further Reading
Ashworth, A. (2010) Sentencing and Criminal Justice (5th edn). Cambridge: Cambridge University Press.
This book by one of the leading sentencing experts provides a comprehensive account of sentencing law and practice. Professor Ashworth is the former Chair of the Sentencing Advisory Panel.
Ashworth, A. and Player, E. (2005) ‘Criminal Justice Act 2003: the Sentencing Provisions’. Modern Law Review 68:822.
This article discusses the most important Act of Parliament on sentencing.
Easton, S. and Piper, C. (2012) Sentencing and Punishment: the quest for justice (3rd edn). Oxford: Oxford University Press.
Another book aimed at undergraduate students which supplies an accessible but detailed account of sentencing law and practice. It also has useful material on the justifications for punishment which are explored in another chapter of this book.
Hood, R. (1992) Race and Sentencing. Oxford: Oxford University Press.
This is still the most important study on whether those from ethnic minority backgrounds are discriminated against in the sentencing process. The sections on methodology will be daunting for undergraduate students, but are necessary in order to explain how the author provided for a number of other variables which could have explained apparent discrepancies.
Ministry of Justice Criminal Justice Quarterly Statistics. London: Ministry of Justice
The official statistics, which are up-dated quarterly and are available on-line, tell you everything you want to know about sentencing different offences and the use of different types of punishment. The supplementary tables contain a lot of valuable additional information.
The Sentencing Council: This site contains copies of all final guidance from the Sentencing Council along with more detail about its structure and duties.
Ministry of Justice: Gives details of Statistical Bulletins, Statistical Findings, Research Studies, Occasional Papers and Research Findings. Although some of them are short and summarise recent findings, some are very detailed and run to several hundred pages (i.e. check before you press print!). Information from before May 2006 can be found on the Home Office site http://www.homeoffice.gov.uk.
The Magistrates’ Association: The vast majority of offenders are sentenced by magistrates. This user-friendly site explains what they do, what powers they have and, if you are interested, how you can become a magistrate yourself.