Recent developments

The most significant development in relation to sentencing discretion and guidance since the 2nd edition of this text was published is the establishment and rapid expansion of the work of the Sentencing Council.

The Working Group set up under the chairmanship of Lord Justice Gage noted that ‘Many judges felt that sentencing was “an art not a science” and was not amenable to prescriptive guidelines’ (p. 3) but in its final report it recommended the creation of an enhanced SGC combining the SGC and the Sentencing Advisory Panel in one body to be called the Sentencing Council. It also proposed additional duties on the new Council. The Coroners and Justice Act 2009 mandated the establishment of a Sentencing Council and the Council began work on 6th April 2010.

In their final report the Sentencing Commission Working Party dealt with what they referred to as the ‘departure test’ - the criterion by which the sentencer can justify departing from the duty to implement the relevant guidance.  The Coroners and Justice Act 2009 introduced a new duty: 
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.

This imposes a clearer duty on the courts to comply with guidance.

Since its establishment the Council has issued several guidelines and consultations: see http://sentencingcouncil.judiciary.gov.uk/.

2.2.2 Rules governing the use of available sentences p.45

‘Limits on sentencing powers of magistrates’ courts’
The following provision has not yet been implemented and no date was provided as at Jan 2011 for its commencement:

CJA 2003 s154 ‘General limit on magistrates' court's power to impose imprisonment
(1) A magistrates' court does not have power to impose imprisonment for more than 12 months in respect of any one offence.’

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

2.4.3 The Sentencing Guidelines Council pp 54-5

For the 5th update to the Case Compendium see:
http://tna.europarchive.org/20100519200657/http:/www.sentencing-guidelines.gov.uk/guidelines/other/courtappeal/default.asp

2.4.4 A Sentencing Commission? p 55

Lord Carter’s Review of Prisons: Securing the Future: Proposals for the Efficient and Sustainable Use of Custody in England and Wales (Carter 2007) had proposed that a permanent Sentencing Commission should be developed, with judicial leadership.

The House of Commons Justice Committee considered the proposals in the Coroners and Justice Bill for a new sentencing body and responded in Section 4 of its Report, published January 23rd 2009 (HC 185 Session 2008-9). It warned against undue haste in formulating and implementing these proposals (para 32) and was concerned that there should be more clarity as regards the procedure for Parliamentary scrutiny of new definitive guidelines (para 33).

The Coroners and Justice Act received Royal Assent on November 12th 2009. This Act mandated the establishment of a Sentencing Council, not Commission. The new Sentencing Council for England and Wales was established on 6th April 2010 and replaces the Sentencing Guidelines Council and the Sentencing Advisory Panel. Its website states that the Council will fulfil the following functions: 

• prepare sentencing guidelines;
• publish the resource implications in respect of the guidelines it drafts and issues;
• monitor the operation and effect of its sentencing guidelines and draw conclusions;
• prepare a resource assessment to accompany new guidelines;
• promote awareness of sentencing and sentencing practice; and
• publish an annual report that includes the effect of sentencing and non sentencing practices. 

In its first year the Council is concentrating on consultations and research as preparation for preparing or amending guidelines on the vexed issues of the totality principle and the discount for a guilty plea as well as sentencing for the assault and drug offences.

See: http://www.sentencingcouncil.org.uk/about-us.htm

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.