Joined-up sentencing

Usually belonging to a category of rather dry document, this annual report of the workings of the Sentencing Guidelines Council (SGC) and the Sentencing Advisory Panel (SAP) arrives at a particularly interesting time for both organisations. The government are showing considerable interest in the idea of the Sentencing Commission and the report of the working party on that topic is awaited.

That will also be an interesting document to read if it takes on board the contents of the numerous adverse responses that have been sent in reply to its questionnaire. The one thing that this report does not do is make recommendations as to how the two organisations might work or be streamlined in the future, in the event that the Sentencing Commission idea does not overtake them entirely.

That the past year has been an important and busy one for both the SGC and the SAP is immediately demonstrated in their respective forewords. The SGC has delivered five definitive guidelines and is working on eight other topics. It has also been responsible for the new Magistrates Court Sentencing Guideline.

The definitive guidelines have the power of statute and courts have to have regard to them when sentencing and have to give reasons if they do not follow them. The objective of the SGC is to produce guidelines in respect of most offences that are regularly sentenced and to deal with the key issues of general principle behind the sentencing process. This objective is expected to be met during 2009.

The SAP for its part has continued its process of sending out its consultation documents to interested parties on the topics that are to become guidelines in due course. It has commissioned empirical and independent research into public attitudes towards particular sentences. This has been a very interesting method of getting at the true vox populi rather than the version seen sometimes in newspapers. It has delivered their advice based upon that research and their consultations to the SGC. However the SAP have seen that the future is uncertain and have therefore not gone through its usual membership changes as government decisions about the Sentencing Commission are considered.

It is important to understand that as a result of the work that the organisations report on, sentencing in the court room has changed over recent years. It is now relatively common for judge or advocate to begin the process with a reference to the guideline applicable to the particular case and to suggest a 'starting point' or 'range' that is appropriate to the particular example of the crime in question. Sadly it is also not unknown for a question about a guideline to deliver only blank faces! When understood and applied by advocates and courts, the procedure instantly narrows the sentencing options being considered unless there is no consensus, in which event, the advocacy can focus on why one or other 'starting point' or 'range' is the one to go for. The net effect should be revealed by statistical data in due course. It should show a narrowing of sentencing variations nationally and it might show a shortening of the time taken on sentencing as well.

Some of the working methods of the two organisations are interesting to consider given that originally there was only the SAP and the creation of the SGC had the potential to make that organisation superfluous. The Report says that 'changed have been made to strengthen the transfer of knowledge and understanding between the Panel and the Council'.

In other words it wasn't perhaps working so well before. Now the scope of projects is agreed in advance with the SGC choosing one or two members to focus on each subject. In consequence of this process both guidelines and consultations are often agreed at first consideration. The scope for internal arguments has been reduced. Difficulty with government ministries remains a problem in the sense that the departments take a very long time to respond and therefore, they can delay progress.

The whole process from inception to guideline is a six-step procedure. Step 1 is the identification of priorities by the SGC and by the SAP. Step 2 sees the SAP undertaking its research and preparing the consultation paper. Step 3 is the actual consultation process to the regular consultees and wider public by the SAP which takes 12 weeks.

Step 4 sees the SAP consider the responses and preparing advice to the SGC. Step 5 sees the SGC considering the advice, publishing a draft guideline and giving two months for responses. Step 6 sees the SGC considering the responses and issuing a definitive guideline.

Thus, in relation to offences of causing death by driving the definitive guideline has been prepared and waits publication. In relation to theft and burglary offences, the definitive guideline is in the process of being prepared. In the case of corporate manslaughter the SAP consultation has occurred and its advice is in course of preparation. In the case of drugs offences the SAP consultation is in course of preparation. These are examples of the different stages in the process that various future guidelines have reached.

So far its research has involved the calculation of fines in magistrate's courts, attitudes to sentencing in cases involving death caused by driving, and a study of sentencing and its outcomes. It has also started work to quantify the impact of its work on sentencing and have acknowledged the need to publicise accurately the work that it is undertaking and its role in sentencing. It has therefore put in place methods to achieve that including the possibility of widening the consultation process.

The truth is these two organisations have made a real difference to the climate of sentencing in the court room and it is an improvement. It will be a pity if they are swept away by a rush towards the Sentencing Commission. It will be an even greater shame if that happens before their body of work is completed and before it has been possible to review just how successful their endeavours have been.