Are we too reliant on sentencing guidelines?

“What am I looking at then?” asks a client charged with assaulting an emergency worker. A pertinent and reasonable question any anxious individual would ask – often before they have even pleaded.

Thankfully, the Sentencing Council are on hand to assist and members of the criminal justice system will be all too familiar with the sentencing guidelines that are provided to guide barristers when advising their clients and to promote uniformity for judges when sentencing.

But what do we miss when we rely solely on a set of guidelines? Have we lost the humanistic aspect and nuances of sentencing? This article seeks to tackle these questions.

An Introduction to the Sentencing Guidelines

For the uninitiated, sentencing guidelines provide an efficient step-by-step guide for nearly all criminal offences in England & Wales. It considers several factors the court should take into account that may affect an individual’s sentence. They set out different levels of sentence based on the harm caused to the victim and how blameworthy the offender is (referred to in the guidelines as ‘culpability’).

Once you have determined the level of harm and culpability involved in the offence, you arrive at a neatly organised table whereby you can see the likely sentence one would receive. By way of example, consider the following scenario.

An individual has been charged with possession of a controlled drug with intent to supply it to another. They are a drug “runner” with little knowledge or influence of the drug operation and their safety is often threatened if they do not do as they are told. They were arrested by police in possession of 150g of MDMA. Before continuing, click here and see what sentence you think this individual may receive.

Hopefully, you determined that they had a lesser role coupled with category 3 harm, and thus a starting point of 3 years’ custody and a category range 2 years to 4 years 6 months’ custody. If you arrived at this too then it marks a success for the aims of the guidelines.

The Rule of Law and Sentencing Guidelines

The rule of law is a foundational principle that weaves its way through the very fabric of the UK’s legal system. Its central tenets are widely recognised and date back a number of centuries, but a well-known interpretation was set out by Professor A V Dicey and later expanded by the late Lord Bingham.

For the purposes of this article, however, we shall consider two aspects of the rule of law:
1) The laws of the land should apply equally to all, and
2) The law must be accessible and so far as possible intelligible, clear and predictable.

Having simple sentencing guidelines that are published online for any member of the public able to access is wholly in accordance with the principles of the rule of law and should be aptly celebrated. In theory, any lay person is able to see how a particular sentence was reached (even if they may disagree!). An undeniable success for Prof. Dicey and Lord Bingham.

But are we too reliant?

People’s lives are tremendously complex and the reasons for committing crime can be even more so. It is well documented that factors such as poverty and an individual’s upbringing can greatly influence their likelihood for committing a criminal offence. Factors that are wholly beyond one’s control and which often boil down to luck. It is only when one scratches the surface do we begin to understand why someone has acted in a particular way.

Matters worsen once an individual has been convicted of a criminal offence as reoffending rates sky rocket. Adults released from custodial sentences of fewer than 12 months had a proven reoffending rate of 56.6%. In many ways, therefore, reoffending acts as a disease for more than half of released adult prisoners who find themselves unable to break the cycle of crime.

Yes, the guidelines are formidable in promoting uniformity under the law. But in scenarios where courts are faced with an offender whose reason for finding themselves on the wrong side of the law are not encompassed within the sentencing guidelines, courts are quite restricted. Whilst allowances are made in mitigation for offenders to explain their actions, there is often little scope to address the underlying causes.

This is not to suggest that allowances should be made for violent and dangerous offenders simply because of their personal circumstances. But there is a more nuanced approach that can be employed for certain offenders that this article does not attempt to identify. In addition, there is some flexibility which can be achieved by a judge reading down the guideline on the imposition of community and custodial sentences, appropriately.

However, a more refreshing approach can be found within youth justice where attitudes are more focused on rehabilitation rather than retributive justice. And whilst guidelines for youths are still used, a more holistic and individualistic approach is undertaken. The Inns of Court College of Advocacy recently held a training day for advocates who will encounter youth offenders. There was great emphasis and importance on promoting the humanistic aspect to sentencing and moving (somewhat) away from the tick box exercise that sentencing guidelines can sometimes promote.

Moving forward

An encouraging pilot scheme involving specialist courts focused on breaking the addictions of prolific offenders has been deemed “efficient” and “a good idea” by the head of the government’s sentencing review, and could be rolled out across England & Wales.

Prolific offenders are defined as individuals with 16 or more previous convictions who often engage in drug-driven crimes such as theft, shoplifting or drug dealing. The scheme plans to rip up the current norm of sending criminals to prison without addressing the causes behind the crimes.

The implementation of the scheme remains to be seen, but such pilots appear to be symptomatic of the restrictive approach sentencing guidelines can encourage.

Conclusion

Crime is serious business. It has profound and dramatic effects that stretch far beyond the confines of the court room. This article does not support straying away from use of the sentencing guidelines; their importance in promoting uniformity cannot be understated. But this article emphasises placing the individual at the heart of sentencing, rather than the guidelines. Because they are only that: a guide.

By Edward Armitage

Pupil Barrister