Sentencing must remain free from political interference

For over fifteen years, the Sentencing Council, made up of veterans from across the Criminal Justice System, has issued sentencing guidelines to our criminal courts, independently of politics. Two weeks ago, in what would become the last days of her tenure as Justice Secretary, Shabana Mahmood announced plans for politicians to oversee all sentencing guidelines before they are issued to courts, giving a power of veto to both the Lady Chief Justice and the Justice Secretary.

A sentencing guideline exists for most criminal offences and the Council publishes more widely applicable guidelines to assist courts sentencing particular types of offenders, such as youths and those with mental or developmental disorders. Using the guideline for a specific offence, the court assesses the culpability of the offender and the harm caused to their victim and wider society, which gives a starting point for sentencing and a sentencing range. Within that range, the court then considers the aggravating and mitigating factors (a non-exhaustive list of which is provided in the guideline) to arrive at the appropriate sentence.

Over a decade of prosecuting and defending in the criminal courts, I have found these guidelines very useful in shaping my submissions, negotiating acceptable bases of pleas, advising clients and determining when to appeal. They are, for the most part, logical and easy to digest. They focus the parties’ minds on the factors that determine the length and type of sentence,  and provide a helpful checklist of considerations which reduce omissions that lead to injustice. They are straightforward enough to show to most clients, demystifying the law and starting the rehabilitative process for those who have either pleaded guilty or been convicted at trial. Perhaps nothing can achieve the panacea of consistency and predictability in sentencing, but the sentencing guidelines bring us closer.

Yet the guidelines are flexible, with overlap between the categories of offending and the inherent latitude in a sentencing range. Further, a judge may disapply the relevant guideline if it would be contrary to the interests of justice to follow it. In my experience, it is rarely necessary to request a judge depart from the guideline (and rarer still for a judge to do so).

Whilst there is an argument for greater diversity on the Sentencing Council, its current members have spent their lives working in different roles within the Criminal Justice System. Consequently, the Council has vast and varied experience of the causal factors and implications of offending, of how sentences impact defendants and their loved ones, and of what justice looks like for victims of crime. Such an independent body is better placed to determine fair and appropriate sentencing guidance than politicians. 

By giving the Lady Chief Justice a veto, Ms Mahmood was able to paint the move as affording “greater democratic and