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The English justice system considers that sentences imposed on offenders should reflect the crime committed and be proportionate to the seriousness of the offense.  It has a Sentencing Council that is responsible for producing, issuing, and reviewing guidance to the courts on what factors should be considered when sentencing offenders and the range of sentences that should be awarded, among other things.  The guidance should be followed, unless it is not in the interests of justice to do so.  The aim of the guidance is to ensure consistency in sentencing across the country.

I.  Introduction

England and Wales has a robust system of sentencing guidelines that the court must follow for crimes committed after April 6, 2010[1]  For offenses committed prior to that date, the court must consider any sentencing guidelines that were in place at the time and relevant to the case and, in cases where no guidelines exist, it must consider how similar cases have been handled in the past by reviewing Court of Appeal judgments.[2]   

The rationale behind the adoption of the guidelines is to provide guidance on factors the court should take into account when sentencing an offender, promote transparency, and ensure that courts across the countries are consistent in sentencing offenders.[3]  The guidelines do provide judges with the flexibility to deviate from them if it is in the interests of justice to do so.[4]

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II.  The Sentencing Council

The Sentencing Council is an independent nondepartmental body of the Ministry of Justice.[5]  It was established in 2009 by the Coroners and Justice Act and is responsible for issuing guidelines for sentencing that must be followed by the courts unless it is contrary to the interests of justice to do so.  Its role includes

  • developing sentencing guidelines and monitoring their use;
  • assessing the impact of guidelines on sentencing practice. . . . and
  • promoting awareness amongst the public regarding the realities of sentencing and publishing information regarding sentencing practice in Magistrates’ and the Crown Court.[6]

When conducting the above functions, the Sentencing Council must take into account the impact of sentences on victims of crime, monitor how the guidelines are applied in practice, and help increase public confidence in the sentencing and criminal justice system.[7]

The council is accountable to Parliament in terms of achieving it’s statutory remit, to the Permanent Secretary at the Ministry of Justice to show efficient and proper use of public funds, and to the Director General of the Justice Policy Group at the Ministry of Justice to account for effective oversight of the body.[8]  The Council must report annually to the Lord Chancellor, who must lay this report detailing the Sentencing Councils activities before Parliament.[9]  The report is also published by the Council and available publicly.

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III.  The Adoption Process for Guidlines

As noted above, the Sentencing Council is responsible for preparing sentencing guidelines.  The Council initially identifies the priorities where guidelines should be revised or are needed.  In some cases, statutes may also require the Council to examine a particular area of the law and produce guidance.[10]  When drafting sentencing guidelines, the Council is required to take into account

      (a)  the sentences imposed by courts in England and Wales for offences;
      (b)  the need to promote consistency in sentencing;
      (c)  the impact of sentencing decisions on victims of offences;
      (d)  the need to promote public confidence in the criminal justice system;
      (e)  the cost of different sentences and their relative effectiveness in preventing re-offending;
      (f)  the results of the monitoring carried out under section 128.[11]

The Council then undertakes a policy and legal review and writes an initial draft, which is discussed internally.  Once the Council agrees on a broad structure, it then consults the Lord Chancellor, as well as any other person he wishes to direct; the Justice Select Committee of the House of Commons; and any other person the Council considers appropriate.[12]  This process  takes approximately twelve weeks.  The Council then considers the responses and publishes the final guidelines.   Publication is not the last step of the Council and it constantly monitors the application of the guidelines.[13]

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IV.  Sentencing Guidelines

The sentencing guidelines are made available publicly and include a number of common factors due to the requirements in the Coroners and Justice Act 2009.  This Act requires the Council to specify a range of sentences in the guidelines (known as the sentence range) with a starting point, and to list any factors or mitigating circumstances that could affect the sentence (known as the category range).  Such factors or circumstances should include, but are not limited to, the offenders’ culpability in committing the crime, the degree of harm caused by the offense, and any aggravating or mitigating circumstances.  The Council must also provide guidance to determine how previous convictions should affect any sentence that may be imposed.[14]

Sentencing guidelines are published for most of the significant offenses heard in the Magistrates’ Court and a wide range of offenses heard in the Crown Court.[15]  An overview of the structure of sentencing guidelines that apply for the offenses of rape,[16] aggravated burglary,[17] corporate manslaughter,[18] and manslaughter by provocation,[19] is provided below.  There are guidelines in place for the offense of attempted murder,[20] but the structure of these vary slightly to the ones listed above.  There are currently no guidelines for human trafficking or the smuggling of goods.

The guidelines apply for offenders age eighteen and older.  Specific guidelines apply for youth sentencing.[21]  The guidelines provide a step-by-step process in determining the sentence.  Step one of the guidance provides that the court should determine the offense category—that is, how much harm was caused and the offender’s level of culpability.  Three categories are provided:

Category 1: Greater harm and higher culpability

Category 2: Greater harm and lower culpability or lesser harm and higher culpability

Category 3: Lesser harm and lower culpability.[22]

A number of offense-specific factors are in the guidance that must be taken into account when determining which category the offender falls within.  If the offense does not fit within a category, the guidelines require the court to consider each factor of the crime and make a decision as to which category is most appropriate.[23]  The length of the sentence should then be considered, with the starting point varying according to the applicable offender category.[24]

Once the sentence range has been determined, factors that could lead to a reduction in the sentence should be taken into account, such as whether the offender has assisted the prosecution.  Reductions are also available for those who have pled guilty.  In cases where the offense is a specified serious offense the dangerousness of the offender should also be taken into account in determining whether the offender should be given a life sentence, receive an extended sentence, or be imprisoned for public protection.

The court is also required to consider the principle of totality—that is, whether the offender is being sentenced for multiple offenses or if the offender is already serving a sentence.  If the offender is already serving a sentence, the total sentence must be just and proportionate to the offense(s) committed.  The court must then consider whether to make an award of compensation or an ancillary order.[25]

Once the sentence has been determined the court must provide the reasoning for, and explain the effect of, the sentence.  Any time that the offender has spent on remand or on bail should then be taken into account.[26] 

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Clare Feikert-Ahalt
Senior Foreign Law Specialist
April 2014


[1] Coroners and Justice Act 2009 c. 25, pt. 4, http://www.legislation.gov.uk/ukpga/2009/25.

[2] Sentencing Guidelines, Sentencing Council, http://sentencingcouncil.judiciary.gov.uk/sentencing-guidelines.htm (last visited Mar. 24, 2014).

[3] Id.

[4] Coroners and Justice Act 2009 c. 25 § 125.  

[5] About Us, Sentencing Council, http://sentencingcouncil.judiciary.gov.uk/about-us.htm (last visited Apr. 1, 2014). 

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] How Guidelines are Developed, Sentencing Council, http://sentencingcouncil.judiciary.gov.uk/guidelines/how-guidelines-developed.htm (last visited Mar. 24, 2014).

[11] Coroners and Justice Act 2009 c. 25, § 120(11).  

[12] Id. § 120.

[13] Sentencing Council, supra note 2.

[14] Coroners and Justice Act 2009 c. 25, § 121. 

[15] Sentencing Council, supra note 2.  A list of all sentencing guidelines in effect is available from the Sentencing Council’s website.  Guidelines to Download, Sentencing Council, http://sentencingcouncil.judiciary. gov.uk/guidelines/guidelines-to-download.htm (last visited Apr. 1, 2014).

[16] Sentencing Guidelines Council, Sexual Offences Definitive Guideline (effective Apr. 1, 2014), http://sentencingcouncil.judiciary.gov.uk/docs/Final_Sexual_Offences_Definitive_Guideline
_content_(web).pdf
.

[17] Sentencing Council, Burglary Offences Definitive Guideline (effective Jan. 16, 2012), http://sentencing council.judiciary.gov.uk/docs/Burglary_Definitive_Guideline_web_final.pdf.

[18] Sentencing Guidelines Council, Corporate Manslaughter & Health and Safety Offences Causing Death (effective Feb. 15, 2010), http://sentencingcouncil.judiciary.gov.uk/docs/web__guideline_on_corporate_manslaughter_
accessible.pdf
.

[19] Sentencing Guidelines Council, Manslaughter by Reason of Provocation (effective Nov. 28, 2005), http://sentencingcouncil.judiciary.gov.uk/docs/Manslaughter_by_Reason_of_Provocation.pdf.

[20] Sentencing Guidelines Council, Attempted Murder Definitive Guidance (effective July 27, 2009), http://sentencingcouncil.judiciary.gov.uk/docs/Attempted_Murder_-_Definitive_Guideline_(web)accessible.pdf.

[21] Sentencing Guidelines Council, Overarching Principles Sentencing Youths Definitive Guideline (effective Nov. 30, 2009), http://sentencingcouncil.judiciary.gov.uk/docs/web_overarching_principles_sentencing_youths.pdf.

[22] Sentencing Council, Burglary Offences Definitive Guideline, supra note 17, at 4. 

[23] Id. at 4.

[25] Id. at 5. 

[25] Id.

[26] Id. at 14.

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Last Updated: 11/03/2014