Draft Guideline welcomed but Committee recommends changes

08 February 2019

The Justice Committee welcomes the Sentencing Council’s draft General Sentencing Guideline, which is intended to help sentencers when people are convicted of offences for which no specific guideline exists, but makes several observations and recommendations.

In June 2018, the Sentencing Council began its consultation on the draft Guideline, along with a consultation stage resource assessment.

As a statutory consultee on draft guidelines, the Committee carried out its scrutiny based on the responses of the Council’s consultation.

The Committee’s observations and recommendations are set out in a letter from the Chair of the Justice Committee, Bob Neill MP, to the Chair of the Sentencing Council, Lord Justice Holroyde.

The letter and Lord Justice Holroyde’s response are published in our report.

Committee’s observations

The Committee’s main observations:

  • The structure and format of the guideline: The Committee welcomes the digital format adopted for this Guideline, which helps sentencers easily access expanded guidance on the assessment of culpability and harm and on aggravating and mitigating factors. The Council should investigate archiving older versions of guidelines as a valuable resource in appeal cases where the hearing takes place after the relevant guidelines have been amended.
  • Consultation stage resource assessment: The Committee recognises that the Sentencing Council is doing what it can within its limited resources to assess the impact of guidelines. It hopes that HMCTS would work with the Council to maximise the opportunities arising from data capture linked to the ongoing and planned digitisation of the courts. The Committee has concerns about the possibility the General Guideline could lead to sentence inflation, given that it does not contain prescribed sentence levels but invites sentencers to consider the definitive sentencing guidelines for “analogous offences”. The Council should include more guidance on this point and the Committee suggests the level of consistency in sentencers’ selection of analogous offences be monitored.
  • Age and/or lack of maturity: The Committee welcomes the Council’s decision to include in the draft Guideline an explanation of the mitigating factor “age and/ or lack of maturity”, as recommended by its predecessor Committee in its report on young adults in the criminal justice system. “Young adults” should be defined as those up to the age of 25 and the term “immature offender” should be replaced with “young adult or otherwise immature offender” to provide greater clarity to sentencers. The Council should clarify the stage at which age and/ or lack of maturity should be considered to avoid the risk of double counting. The Committee calls for the MOJ to fund research into sentencers’ and prosecutors’ understanding of maturity, given the Council’s limited budget for research.
  • The five purposes of sentencing: The Committee welcomes the Council’s decision to re-state the five purposes of sentencing in the General Guideline and agrees with a report by Professor Sir Anthony Bottoms that public understanding, as well as that of sentencers, would be enhanced by including additional explanatory text for each statutory purpose, in particular how they relate to section 143(1) of the Criminal Justice Act 2003.

Chair’s comments

Chair of the Justice Committee, Bob Neill MP, said:

“We welcome much of what is in the draft General Sentencing Guideline, particularly in regard to digitisation, which will make it much more user friendly. However, we have set out several specific concerns and have published these today.

It is encouraging that Lord Justice Holroyde sought to assure us that the Council will consider our point on analogous guidelines in its post-consultation deliberations, to guard against any risk of sentence inflation.

His response also states that the Council will examine our observations and recommendations on age and/ or lack of maturity.

We think this is of key importance to make sure young people who are not yet fully able to appreciate the consequences of their actions do not receive disproportionately heavy sentences.

The Council also says it will look at our observations on the five purposes of sentencing.

I look forward to a more detailed response and reassurances when the definitive guideline is published later this year.”

Further information

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