Recent developments

Sentencing Guidelines

A significant development in the last few years has been the experimentation by the Sentencing Guidelines Council - and then by the Sentencing Council - with new formats for definitive sentencing guidelines. The most recent offence-based guidelines divide the exercise of establishing seriousness into two steps. The recent Assault guideline, for example, referring to section 125(3)-(4) of the Coroners and Justice Act (C&JA) 2009, first of all specifies offence ranges – the range of sentences appropriate for each type of offence.  This first stage - where there are lists of factors indicating greater harm or higher culpability - allows for an immediate categorization into different sentencing ranges with an identified starting point within each category. Once that is established the court then considers further aggravating and mitigating factors. 

It is also worth noting that the effect of the crime on the victim has gained a higher profile as an aggravating factor. Indeed, legislation has stated that in producing guidelines the Sentencing Council must have regard to several matters including ‘the impact of sentencing decisions on victims of offences’ (C&JA 2009 s120(11)(c)). So, for example, in this Assault Guideline the non-statutory factors indicating greater harm in relation to the offence of grievous bodily harm include ‘victim is particularly vulnerable because of personal circumstances’ whilst in Step 2  the location and timing of the offence as well as ‘gratuitous degradation of victim’ are amongst the aggravating factors.

Thirdly, the question of the discount for a guilty plea has again surfaced. It came to prominence when the Government proposed in its Green Paper Breaking the Cycle (Ministry of Justice, 2010) to discount sentences by up to 50%.   The proposal received extensive criticism in Parliament and the Sentencing Council noted that no common law jurisdictions had a discount larger than 35%.  Research also suggests that the main factor determining whether or not offenders plead guilty is the likelihood of being found guilty at trial. The proposal to increase the discount was subsequently not included in the Legal Aid, Sentencing and Punishment of Offenders Bill 2011.

3.2.2 Checklist p.84

Stage 13 of the checklist should also include consideration of whether, under the current practice, a victim's surcharge should be imposed. (See page 189).

3.2.4 Persistence as a problem pp. 87-90

The latest statistics from the Home Office in relation to the national Prolific and Other Priority Offenders (PPO) cohort show that the offence group ‘theft’ accounted for one-fifth of proven offences by the PPO cohort. Serious acquisitive crimes (domestic burglary, theft of and theft from motor vehicles and robbery) accounted for 13 per cent of proven offending by PPOs. The mean age for offenders in the 2009 PPO cohort was 27 years, with 97 per cent of the 2009 PPO cohort recorded as male.

See Home Office (2010) Prolific and Other Priority Offenders: Results from the 2009 cohort for England and Wales
http://rds.homeoffice.gov.uk/rds/stats-release.html

3.3.1 The Criminal Justice Act 2003 pp 77-78

Section 11 of the CJIA 2008 creates a new s 150A of the CJA 2003 which states that:

1) The power to make a community order is only exercisable in respect of an offence if—
(a) the offence is punishable with imprisonment; or
(b) in any other case, section 151(2) confers power to make such an order.
This means that, when implemented, a community sentence or a sentence for a persistent offender previously fined can only be imposed if the offence is one punishable by imprisonment.

This change was suggested in the Home Office Report Making Sentencing Clearer which stated 6.10: 'It would be possible to legislate to remove the option of the community order from the sentencing menu available to the courts for some offences. Removing the community order sentencing option could apply to a range of minor, non-imprisonable offences for which a fine is normally judged to be the most suitable response.' It further went on to note: 'Under the Criminal Justice Act 2003 all offences, whether imprisonable or not, qualify for a community order provided the individual offence is serious enough to warrant such a sentence. This represents a change from the previous position, when some community disposals were available for all offences and some for imprisonable offences only'.

It therefore suggested two possible legislative options: that the community order option was removed from all non-imprisonable offences or that it continued to be available for imprisonable offences but only those above a particular maximum penalty. Clearly the former view prevailed.

This section has been in force since July 14th 2008.

3.3.2 Mitigation relating to the offender pp 97-98

R v P and Blackburn [2007] EWCA Crim 2290
This case gives detailed advice about the approach to sentencing where the defendant has given assistance to the police in the context of the provisions in the Serious Organised Crime and Police Act 2005, ss.73-75.

3.2.4  Persistence as the problem pp 87-90

A collection of essays edited by Roberts and von Hirsch considers the problems for desert theory of justifying an increase in sentence severity because of past convictions. The collection also includes discussion of justifying a recidivist premium on utilitarian grounds and of applying a premium in a consistent and principled way (J. Roberts and A. von Hirsch (eds) (2010) Previous Convictions at Sentencing: Theoretical and Applied Perspectives. Oxford, Hart). 

3.5.1 Rights theory pp 107-109.

Baze v Rees 553 US (2008)

The opinion of the Supreme Court in Baze v Rees was published on April 16th, 2008. The majority (7:2) of the Court decided that the lethal injection protocol used in Kentucky did not violate the 8th amendment prohibition on Cruel and Unusual Punishment. This decision paved the way for the resumption of executions.