SENTENCING IN THEORY
AND PRACTICE: THE
ENGLISH GUIDELINES
EXPERIENCE
Andrew Ashworth,
University of Oxford
English Guidelines – Brief History
• Guideline judgments delivered by Lord Chief Justice:
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Aramah (1982), Boswell (1984)
Magistrates’ Association’s guidelines (1989)
‘Guidelines not tramlines’: achieving consistency but
allowing discretion
Creation of Sentencing Advisory Panel (1998) giving
advice to Court of Appeal
Sentencing Guidelines Council (2003) to issue definitive
guidelines; now Sentencing Council
Gradualism: by offence groups, and general principles
Structure of English Guidelines
• Sentencing guidelines without a grid: an alternative to
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U.S. approaches
A. divide each offence into 3 or 4 bands (levels of
seriousness), and assign sentence ranges to them
B. identify a starting-point for each band
C. create a step-wise process that includes all the major
decisions a court must make when passing sentence.
* Not a two-stage approach, but a nine-stage approach *
Step 1: Determining the offence
category
• Three categories / bands / levels
• 1 – greater harm and higher culpability
• 2 – greater harm + lower culpability OR lesser harm and
higher culpability
• 3 - lesser harm and lower culpability
• Placement in one category by taking account of the main
factors of HARM and CULPABILITY
• Example: Assault occasioning Actual Bodily Harm
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Step 2: Starting point and category
range
• Using the starting point for the category decided at Step
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1, move the offence upwards or downwards according to
the aggravating and mitigating factors relevant to the case
‘Relevant recent convictions are likely to result in an
upward adjustment’
‘In some cases, having considered these factors, it may
be appropriate to move outside the identified category
range’ – DISCRETION
See all guidelines at:
www.sentencingcouncil.judiciary.gov.uk
Step 2 – category ranges
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Step 2 details
Flexibility at steps 1 and 2
• Aggravating factors (e.g. ‘under influence of drugs’) and
mitigating factors (e.g. ‘true regret’): individualization
• Duty to ‘treat each previous conviction as an aggravating
factor’ if court considers that it is relevant and recent and
should be so treated; but how much should they
aggravate?
• Examples: Roberts [2012] EWCA Crim 2729, distraction
burglary of elderly woman, 72 precons; Thomas [2013]
EWCA Crim 1084, theft of purse containing £80, 66
precons.
Departure test
• Pre-2010, duty to ‘have regard to’ guidelines
• Now, ‘must follow’ any sentencing guideline relevant to
the case, unless ‘contrary to interests of justice to do so’
• BUT ‘must follow’ applies only to the offence range, not to
the category range: thus, for assault occasioning actual
bodily harm, the offence range is from a Band A fine up to
3 years’ imprisonment.
• This leaves courts with considerable discretion (subject to
appeal court supervision, esp. on category range), and
makes true departures very rare. BUT grounds for appeal
if judge placed offence in wrong category range, or too
high within category range, etc.
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English Guilty Plea Guideline
Crown Court Sentencing Survey
(Sentencing
Council 2012)
Intermediate
cases
Late plea cases
89%
37%
12%
21% - 32%
9%
34%
9%
11% - 20%
2%
22%
24%
1% - 10%
0%
6%
49%
No reduction
0%
1%
6%
Guideline
recommended
reduction
33%
25%
10%
Expected
sentence
reduction
32%
23%
13%
1/3 or greater
Early plea cases
Totality and Step 6
• Multiple offences: ‘a total sentence which reflects all the
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offending behaviour and is just and proportionate.’
Sentencing Council, Offences T.i.C and Totality (2012)
Example: Hartley et al [2011] EWCA Crim 1957,
continuous course of counterfeiting
Cf. Pearce, aggregate sentence must be ‘a just and
proportionate measure of the total criminality involved.’
Use of previous decisions as comparators, e.g. Dunks v.
Western Australia (2009) 195 A Crim R 130
Is this an ‘instinctive synthesis’?
The sentencer’s (bounded) discretion
• Deciding the starting-point, taking account of aggravating
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and mitigating factors (steps 1 and 2) and any previous
convictions: the breadth of discretion and judgment
E.g. ‘We further emphasise that the fact-specific nature of
the criminal activity involved in each offence remains the
paramount consideration.’ per Lord Judge CJ in Thomas
[2011] EWCA Crim 1497, at [62].
Reduction for guilty plea (if applicable)
Application of totality principle
However, courts are NOT free to disagree with guidelines:
Healey [2012] EWCA Crim 1005, at [5] per Hughes LJ:
The sentencer’s duty
• ‘There is deliberately built into the guidelines issued by the
Sentencing Council a good deal of flexibility … [for judges]. It
does not, however, extend to deliberately disregarding the
guidelines, not on the grounds that the case has particular facts
that warrant distinguishing it from the general level, but
because the judge happens to take a different view about
where the general level ought to be. The latter approach is
demonstrably unlawful.’
• ‘Very few judges are fortunate enough to go through life without
encountering rare occasions when they would prefer the law to
be otherwise to that which it is. The judge’s duty is
nevertheless to apply it, whether at first instance or in this
Court, just as it is the duty of the citizen to obey the law
whether he happens to agree with it or not.’
Sentencing for public consumption?
• Guidelines, ranges and starting points = ‘transparency’
• Arithmetical approach? The guilty plea discount and the
‘sliding scale’. Cf. Caley [2012] EWCA Crim 2821 on ‘first
reasonable opportunity’, ‘overwhelming case’ and Newton
hearings, and Thomson (2000), 25% reduction for plea at
earliest opportunity.
• Sentencing hate crimes: court must specify the quantum
of uplift for racial or religious aggravation: Kelly and
Donnelly [2001] EWCA Crim 170, at [63].
• Should this approach be taken any further? Could it be
applied to more aggravating and mitigating factors?
Re-Assessing Sentencing: No Prison
for Property Offences?
• Sentencing Council’s duty to re-assess sentence levels
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and relativities, and to canvas public views
Challenge of prison for ‘pure’ property offences,
amounting to 8% male and 21% female prisoners.
Prison as most severe sanction, right to property much
less strong than right to liberty, alternative punishments.
Previous convictions as key battle-ground: survey of shop
thieves, average of 42 precons
Ashworth v. Leveson, and the Sentencing Council’s
upcoming guideline on fraud.
E&W Guidelines: Success or Failure?
• Guidelines as a means to an end
• Enabling correctional resource predictions?
• Acceptable balance between a) consistency of starting-
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points and b) discretion to enable ‘fact-specific’
sentencing?
Too constraining, or too loose?
Too complicated and too heavy?
Greater transparency, and shield for unpopular sentences
Failed to discourage politicians from enacting more
mandatory minimum sentences
Judges in control?