Expanded explanations in guidelines
Judges and magistrates across England and Wales will have access to expanded explanations embedded in offence specific guidelines. The expanded explanations add extra information to aggravating and mitigating factors to make it easier for courts to maintain consistency and transparency in sentencing.
They are designed to reflect and encourage current best practice rather than to alter sentencing practice. They will provide court users with useful information relating to fines, community and custodial sentences and commonly used factors. They will also improve transparency for victims, defendants and the wider public.
The expanded explanations, which supplement the General guideline are effective from 1 October 2019 but are now available online, with an accompanying video.
The Sentencing Council is also improving the links within sentencing guidelines to other relevant information, such as the Equal Treatment Bench Book.
- Why has the Sentencing Council added expanded explanations to existing offence specific guidelines?
- The additional information will provide sentencers and other court users with useful information relating to commonly used factors in guidelines and improve transparency for victims, defendants and the wider public.
- They take advantage of the fact that guidelines are now provided in a digital format, so the information can be provided from within individual sentencing guidelines.
- What are some of the key features?
The expanded explanation for a factor is the same wherever that factor applies. There are expanded explanations for factors that are present in most guidelines such as:
- previous convictions
- offence committed on licence or post sentence supervision
- age and/or lack of maturity
- sole or primary carer for dependent relatives
Expanded explanations also apply to for factors that are less common such as:
- offence was committed against an emergency worker acting in the exercise of functions as such a worker
- abuse of trust or dominant position
- delay since apprehension
The expanded explanations do not change the factors in guidelines – they just provide additional information on the factors that are already in the guidelines.
- How do expanded explanations apply to new guidelines?
- From 1 October 2019, the relevant expanded explanations will be added to aggravating and mitigating factors in offence guidelines.
- When the Sentencing Council introduces new overarching guidelines, links to those guidelines will be added if relevant to the explanations. For example, the explanation for the factor ‘Mental disorder or learning disability’ will be replaced by a link to the Mental Health Overarching Principles guideline when that comes into effect in 2020.
- What difference does the extra information make?
- The expanded explanations are designed to reflect and encourage current best practice rather than to alter sentencing practice.
- In some cases, the explanations provide links to or extracts from existing overarching guidelines. In other cases, the explanations reflect case law.
- Having this information easily available within guidelines means that all those involved in sentencing will be aware of the relevant considerations.
- Do sentencers have to follow the guidance in the explanations?
- The expanded explanations are an integral part of the guidelines and once they are in force (from 1 October 2019) courts must follow them unless it would not be in the interests of justice to do so.
- The explanations vary in the amount and type of information they contain. The aim is to provide easy access to relevant information without interfering with the ability of the court to sentence appropriately on the facts of the case before it.
- Guidelines require sentencers to take account of relevant matters and the expanded explanations provide the necessarily material, but they do not tell sentencers precisely how that should be reflected in the final sentence.
- How might the explanations operate in practice?
- Prosecution and defence representatives are used to referring to factors in guidelines in their submissions to the court. The expanded explanations will help to ensure that all relevant issues relating to aggravating and mitigating factors are drawn to the court’s attention.
- As an example, the explanation for ‘Age and/or lack of maturity’ could be valuable to sentencers as it sets out the latest information on how immaturity can impact on offending. As well as providing concise but comprehensive information, the explanation reminds sentencers of the importance of obtaining a pre-sentence report when considering these issues.
- Who will these explanations help and how?
- Judges and magistrates will find it easier to access relevant information on factors in guidelines
- Defence and prosecution lawyers will be able to refer to the information in submissions to the court
- Defence representatives will be able to use the information to explain to defendants how the sentencing process works
- Victims and other interested parties will be able to see how different factors are applied by courts
- Overall, the explanations will help to ensure that relevant considerations are taken into account in sentencing and that the process is transparent.
- What impact will the expanded explanations have on sentence outcomes?
- The expanded explanations will apply where relevant to all offence specific Sentencing Council guidelines for sentencing adults and organisations. As such they have the potential to affect a large proportion of sentences, but as most of the expanded explanations relate to factors at step two of guidelines – after the starting point has been determined – the potential impact on sentence outcomes is limited.
- The aim is to improve consistency and transparency in sentencing, and not to increase or decrease individual sentences. However, it is possible that individual sentences could be increased or decreased if in a particular instance a judge or magistrate is not currently following best practice.
- The Sentencing Council has published a resource assessment giving more details.