Easton & Piper: Sentencing and Punishment 2e 
DevelopmentsEaston & Piper: Sentencing and Punishment 2e
Chapter 02
2.3. New Constraints: Statutory hurdles and discretion pp.49, 50-51
Section 10 of the Criminal Justice and Immigration Act (CJIA) 2008 adds a new s 5 to s 148 of the Criminal Justice Act (CJA) 2003 as follows:
5) The fact that by virtue of any provision of this section—
(a) a community sentence may be passed in relation to an offence; or
(b) particular restrictions on liberty may be imposed by a community order or youth rehabilitation order,
does not require a court to pass such a sentence or to impose those restrictions.
This stresses that the court has discretion to take into account any factors which would justify a lesser sentence.
This section has been in force since July 14th 2008
2.4.4 A Sentencing Commission? p 55
The House of Commons Justice Committee considered the proposals in the Coroners and Justice Bill in Section 4 of its Report published January 23rd 2009 (HC 185 Session 2008-9). See:
www.publications.parliament.uk/pa/cm200809/cmselect/cmjust/185/18506.htm
The Committee warns against undue haste in formulating and implementing these proposals (para 32) and is concerned that there should be more clarity as regards the procedure for Parliamentary scrutiny of new definitive guidelines (para 33). It states:
‘By convention this Committee has been consulted by the Sentencing Guidelines Council in advance of the issue of new definitive guidelines; and has taken evidence in specific instances when appropriate and practical to do so. It is not clear from the face of the bill what role is envisaged for Parliamentary scrutiny of draft guidelines in the future. In our view it is essential for Parliament to continue to be involved in the process whatever new structures are put in place’ (para 34).
The Bill as brought from the Commons on 29th October 2009 included the following clauses:
Part 4
SENTENCING
Chapter 1
SENTENCING COUNCIL FOR ENGLAND AND WALES
Sentencing Council for England and Wales
114 |
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115 |
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Guidelines |
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116 |
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117 |
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118 |
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119 |
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120 |
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Duties of the court |
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121 |
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122 |
|
Other functions of the Council |
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123 |
|
124 |
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125 |
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126 |
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127 |
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128 |
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Lord Chancellor’s functions |
|
129 |
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130 |
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Miscellaneous and general |
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131 |
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132 |
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These provisions set up a Sentencing Council for England and Wales to replace the Sentencing Guidelines Council and the Sentencing Advisory Panel. The new body will report annually to the Lord Chancellor and will be responsible for producing, inter alia, sentencing guidelines and sentencing ranges. A statutory duty will placed on the courts (clause 121 at 29.10.09):
(1) Every court—
(a) must, in sentencing an offender, follow any sentencing guidelines
which are relevant to the offender’s case, and
(b) must, in exercising any other function relating to the sentencing of
offenders, follow any sentencing guidelines which are relevant to the
exercise of the function,
unless the court is satisfied that it would be contrary to the interests of justice
to do so.
The Bill received Royal Assent on November 12th 2009. When this update was posted a copy was not yet available at www.opsi.gov.uk/acts/acts2009a
2.7. Retributivist rationales pp 63-69
In a recent paper Gavin Dingwall argued that notions of desert remain very important and may be found in the 2003 Criminal Justice Act and the guidance from the Sentencing Guidelines Council (SGC). This suggests that desert remains a key element of the sentencing of adult offenders.
G. Dingwall (2008) 'Deserting Desert? Locating the Present Role of Retributivism in the Sentencing of Adult Offenders' Howard Journal Vol 47(4) pp 400-410.
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