, Sentencing model, sentencing muddle , part one: leadingcounsel.co.uk
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Sentencing model, sentencing muddle , part one

One reason why I generally deprecate comment about sentencing in individual cases is that you usually do not know all the relevant facts. However, sadly in this series I shall have to contradict my own rule because otherwise it will be impossible to speak properly about the matter.

Nonetheless the trend towards more heavily prescribing what sentences judges should pass leads the danger of them making what may be specious distinctions in passing sentence, in order to justify the sentence they really want to pass. We shall need to look at illustrations as an indication as to why the more more effort there is to prescribe sentences, the greater the risk that ultimately that process must be fruitless.

The proposed Sentencing Council new requirements specify that judges "must follow" guidelines, rather than "take account" of them. This is intended to be more restrictive. The circuit judges of England and Wales responded to this intimated change as follows: " We fear that the requirement ‘must follow’ will erode judicial discretion and that will lead to heavier sentences. The hope was that the existence of the council would reduce the use of custody. But in the present climate it is unlikely to issue guidelines that are more lenient. Imagine the public outcry. ". Whether of course a Sentencing Council will in fact lead to more onerous guidelines is a moot point.

There is an inevitable tension between two different policy aspects. The first is that sentences should be consistent, and at a level which is set so as to fit with what is seen as appropriate. The second is that the individual circumstances of each sentence should be taken into account, and of course logically the only person who can do that is the judge at trial or sentence.

Now that the prosecution can appeal an unduly lenient sentence (albeit that in practice that would be much rarer than the defence appealing) there is some control in each case of individual sentencing, including lenient sentencing, but to be appealable a sentence has to be outside the bracket of discretion. There is therefore an inevitable trend to avoid the time expense and difficulty of an appeal. Consequently the sentencing judge has enormous power, even within the constraints which are imposed.

One great difficulty about commenting on any individual sentence is the same reason why it is difficult to impact upon the discretion of the individual judge. There are a myriad of individual circumstances which make it difficult to offer an objective and proper assessment of a sentence unless you are on top of all those individual circumstances. Unless it is reported case, you are stuck with the details which appear in the popular press. Without wishing to be judgemental, even in serious newspapers, any report of the case in respect of which you know the facts always seems to be to a greater or lesser extent incomplete. It is not that the details which are published are wrong. It is that there are other details which might affect one's perspective on the matter which simply never appear. Any comments here, or indeed any comments generally, about sentencing, must be subject to that extraordinarily heavy caveat.

I have talked before about the unscientific basis upon which public policy in general, and the courts as an aspect of that, operate in the main. That to some extent also feeds into the various policy pronouncements which are made. There is inevitably a trade-off between the public decision on sentencing, (through whichever body is put together by the elected representatives of the public) and the judges fairly exercising the discretion given to them within the parameters of that public decision. Consistency is a part of fairness. If you are sentenced by a judge prone to give stiff sentences as opposed to a lenient sentences, whilst inevitably people are different and so the sentences they give will be different, should there be any real disparity between people sentenced for similar offences which does not arise from differing personal circumstances then there would be both an actual and perceived sense of unfairness. As against that, you have to bear in mind that if you are too restrictive you are taking away the ability of the judge to reflect the individual personal circumstances which must always be different. That is a different form of unfairness.

To some extent therefore this is a devil and the deep blue sea problem. We will look next week at the implications and possible solutions.

Michael J. Booth QC