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What price should we pay for consistency in sentencing?

Penelope Gibbs
12 Dec 2016

Ten years ago there was post-code sentencing for under 18 year olds convicted of serious crimes.  A much higher proportion (20%) of children in Merthyr Tydfil were convicted of imprisonment than those in Newcastle (2%). We publicised this discrepancy, and the significant difference in the numbers of children imprisoned in Newcastle vs  Liverpool and Leeds.  Each area has different populations, but also different sentencing cultures, which produced post-code sentencing.

The Sentencing Council was set up in 2010 partly to eliminate such disparities, to produce greater consistency in sentencing. At conception, the idea was also to provide a means of curbing prison numbers, which were then rising steeply upwards.  Judges and parliamentarians hated the idea that sentencing should be in any way linked to resources, so that idea was ditched.  But the Sentencing Council was tasked to achieve greater consistency in sentencing through the production and dissemination of guidelines.  Today we publish a report looking at whether the Council, and the guidelines it produces, has been a brake or an accelerator on the use of prison.

There was quite a lot of judicial resistance initially to anything that might fetter their discretion.  But in fact, within the guidelines judges still have quite a lot of choice as to what sentence to use.  The effect of sentencing guidelines so far appears to have been the achievement of consistency at the expense of ever longer or more punitive sentences. Average prison sentences have got longer (by three months in six years), though there are probably fewer “outlier” sentences.  In some cases, the Sentencing Council has created guidelines which they predicted would create sentence inflation (dangerous dogs, sexual offences).  In other cases they have produced guidelines which they said would not change the length of sentences, but appear to have had that affect – the average prison sentence for grievous bodily harm with intent went up 17% in the year after the new guideline was introduced.

Why have guidelines led to sentences getting more punitive? Partly because some of the guidelines suggest more punitive sentences than were previously the norm, partly because the mood music  of the guidelines (and the accompanying press coverage), sometimes seems to unwittingly encourage more punitive sentencing, and partly because the guidelines have no mechanism to dissuade judges form using sentences slightly above the average.  There are other reasons for sentence inflation, including the collapse of sentence appeals, and the success of attorney general refs in increasing sentences, but as @thepubliclawyer pointed out in a recent twitter conversation, these stem from the letter, and the perceived spirit, of sentencing guidelines.

Many lawyers would prefer to have no sentencing guidelines and no Sentencing Council. But they would still have to deal with case law, which often itself contributes to sentence inflation.  Rob Allen, our report’s author, recommends going back to the drawing board with the Sentencing Council, and changing its board and its remit.  It could then more easily play a role in preventing sentences getting ever longer.

So has the Sentencing Council at least eliminated post code sentencing? Guidelines have probably helped iron out some of the worst discrepancies, but anecdotally some courts (and some judges) are still more punitive than others.