1. Summary
1.1. Background
The Sentencing Council for England and Wales has responsibility for developing sentencing guidelines, assessing the impact of the guidelines on sentencing practice, and promoting public confidence in the criminal justice system.
The Sentencing Council produces offence specific guidelines relating to particular offences or sets of offences, and overarching principles guidelines, which provide guidance on cross-cutting areas that can be applied across a range of offences. There is also a General guideline, which should be used where no specific guideline exists for a certain offence (for example, where it is new or less common), and in conjunction with other guidelines to provide further guidance.
Sentencing guidelines typically follow a stepped approach. At step 1, sentencers assess the offender’s culpability and the harm caused by the offence and determine the sentence starting point, while at step 2, any aggravating factors (which may increase a sentence) or mitigating factors (which may decrease a sentence) are taken into account. Some of these factors have expanded explanations. These explanations add extra information to aggravating and mitigating factors to provide guidance on the type of considerations to take into account when applying the factors, and to make it easier for courts to maintain consistency and transparency in sentencing. Expanded explanations came into force both as part of the General guideline and offence specific guidelines in October 2019.
This research contributes to work to address the Sentencing Council’s strategic objectives for 2021 to 2026, in which a commitment was made to “explore how the Council’s expanded explanations are being interpreted and applied by sentencers in practice”, in line with the Council’s duty to monitor guidelines and promote fairness in sentencing.
In addition, this research forms part of the Council’s response to findings from research on Equality and Diversity in the work of the Sentencing Council, which was undertaken by the University of Hertfordshire and published in 2023. This research was commissioned by the Council as part of their strategic objective to “explore the potential for the Council’s work to inadvertently cause disparity in sentencing across demographic groups”.
1.2. Methodology
The research used a qualitative design and consisted of two stages. For stage one, in-depth interviews using offence specific scenarios were conducted with 20 judges (which included circuit judges and recorders) and 20 magistrates. The interviews explored the identification and interpretation of nine existing aggravating and mitigating factors and their accompanying expanded explanations, some of which were included based on recommendations made by the previously mentioned equality and diversity research commissioned by the Council. Three of these expanded explanations included potential amendments to the wording for sentencers to consider. These factors were:
Aggravating factors
- Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction
- Victim is targeted due to a vulnerability (or a perceived vulnerability)
- A leading role where offending is part of a group activity
- Commission of offence whilst under the influence of alcohol or drugs
- Offence committed in a domestic context
Mitigating factors
- Good character and/or exemplary conduct (amendment proposed)
- Sole or primary carer for dependent relatives (amendment proposed)
- Remorse (amendment proposed)
- Age and/or lack of maturity
For stage two, six focus groups were conducted: three with judges and three with magistrates. The focus groups discussed the potential introduction of three possible new mitigating factors and their accompanying expanded explanations, proposed in response to recommendations from the equality and diversity research. These mitigating factors were:
- Pregnancy and maternity
- Deprived and/or difficult background or personal circumstances
- Prospects of or in work, training or education
1.3. Findings
- Findings from the interviews with 20 judges and 20 magistrates suggest that some factors may be more straightforward than others to identify and/or interpret when considering hypothetical sentencing scenarios. Factors that were broadly identified and interpreted as expected by the scenario design and related expanded explanation content were ‘Previous convictions’, ‘Commission of offence whilst under the influence of alcohol/drugs’, ‘A leading role where offending is part of a group activity’, ‘Victim is targeted due to a vulnerability (or perceived vulnerability)’ and ‘Sole or primary carer for dependent relatives’.
- A small number of factors were not always identified or interpreted as expected. These were ‘Offence committed in a domestic context’, ‘Age and/or lack of maturity’, ‘Remorse’ and ‘Good character and/or exemplary conduct’. For these factors, where there were differences in understanding this was often due to assumptions being made about a factor’s meaning based on its title alone, without consultation of the associated expanded explanation.
- When sentencers were asked to examine accompanying expanded explanations during interviews, they generally found the explanations clear and straightforward to understand. The exception was the factor ‘Good character and/or exemplary conduct’, which had been amended in this research to remove the example of charitable works. Although participants felt removing this single example was better than keeping it due to the possibility that including it may create sentencing disparities, some participants felt it would be helpful to provide a more varied list of examples. However others preferred that interpretation of what might constitute good character or exemplary conduct was left open-ended.
- The 11 judges and nine magistrates who took part in focus groups were generally not in favour of introducing the three new proposed mitigating factors of ‘Pregnancy and maternity’, ‘Prospects of or in work, training or education’ and ‘Difficult background and/or difficult personal circumstances’ explored in this research. While there was a recognition that the content of their respective expanded explanations was generally useful to bear in mind when sentencing, the prevailing view was that these factors were already being accounted for where appropriate and it was unnecessary to formally include them in sentencing guidelines.
- Sentencers considered whether they thought any aggravating or mitigating factors could create sentencing disparities. Sentencers did not feel guideline content itself created disparity but felt there could be other unconscious influences on sentencing such as the sex or background of the offender, as well as a judge or magistrates’ level of sentencing experience or training.
- Based on the findings of this research, amendments were proposed for a small number of selected factors and/or their accompanying expanded explanations. These proposed changes were then consulted on as part of the Sentencing Council’s third annual consultation on miscellaneous amendments to guidelines.