2. Introduction
The Sentencing Council for England and Wales (‘the Council’) is an arm’s length body of the Ministry of Justice (MoJ), which was set up by Part 4 of the Coroners and Justice Act 2009 to promote greater transparency and consistency in sentencing, while maintaining the independence of the judiciary. It holds responsibility for developing sentencing guidelines, assessing the impact of guidelines on sentencing practice, and promoting public confidence in the criminal justice system. The guidelines set out the harm and culpability associated with the offence, aggravating and mitigating factors to take into account (factors of the case that may increase or decrease the sentence), as well as sentence starting points and ranges. They are intended to help ensure a consistent approach to sentencing, while preserving judicial discretion. Courts must follow sentencing guidelines unless it is in the interests of justice not to do so.
Until 2018, the Council published hard copies of the guidelines. These have now been replaced with guidelines which are exclusively published online. The Council committed to explore how guideline users access, use and interact with the sentencing guidelines on its website in its strategic objectives 2021-2026 published in November 2021: “to ensure sentencers and other practitioners have easy and immediate access to sentencing guidelines by continuing to develop digital tools that meet their needs”.
We decided to conduct this research via two strands: the first, a survey distributed by the Council to guideline users (including magistrates, judges, and other court users such as legal advisors), the results of which are outlined in this report. Results from this survey informed the second strand of the research, which was externally commissioned to the Behavioural Insights Team (BIT). BIT carried out in-person observations, virtual usability testing and semi-structured interviews with sentencers. A separate report has been published by BIT, which can be accessed here.
This first strand of research comprised a questionnaire designed to capture current practice and use of the guidelines (offence specific guidelines relate to particular offences or sets of offences, overarching principles guidelines provide guidance on cross-cutting areas that can be applied across a range of offences, such as domestic abuse and sentencing of children and young people). It also covered features and tools available on the website to support sentencers, such as the drink-driving and fine calculators, procurement card builder and SentencingACE tool.
3. Methodology
To explore how guideline users access, use and interact with the sentencing guidelines on the website, sentencers and court users were invited to complete a questionnaire (please see Annex A), which was hosted on SmartSurvey. The survey was voluntary and was advertised via a bulletin on the homepage of the judiciary’s intranet. The Senior Presiding Judge gave approval for judicial participation in this project. Members of the Council’s research ‘pool’ – a database of sentencers who have previously indicated that they would be happy to take part in the Council’s research exercises – were also approached.
A total of 1,731 responses were submitted between 1 September and 2 October 2022. The survey included a mixture of questions with both single and multiple response options as well as free text response questions. Where appropriate, we conducted thematic analysis of the free text responses. In some cases, these responses either duplicated information already provided by the respondent in the multiple-choice options or did not specifically answer the particular question. In these instances, responses were removed to avoid duplication or inclusion of non-relevant information. To assist with the second phase of the research (conducted by BIT), respondents were asked to share their email if they were happy to participate in further research.
To gain a contextual understanding of the respondents, question 1 asked respondents to select their role from the options presented in Table 1 (please note that percentages in all tables presented in this report may not sum to 100 due to rounding or the provision of multiple option responses). Three respondents selected ‘other’, stating their role to be: high court judge (one), family and adult judge (one), and court of appeal judge (one).
Table 1: Q.1. Type of guideline user (single response option)
|
Answer choice |
Per cent |
Response total |
|
Magistrate |
90% |
1,563 |
|
Legal adviser |
5% |
91 |
|
Circuit judge |
2% |
39 |
|
Recorder |
1% |
23 |
|
District judge |
0.5% |
9 |
|
Deputy district judge |
<0.5% |
3 |
|
Other (please specify): |
<0.5% |
3 |
|
Total |
99.5% |
1,731 |
Base size: 1,731
Responses were collated at an overall sample level and are therefore reported together; however, where appropriate, responses or differences between/from specific user groups are highlighted. Where differences between groups are noted, respondents were categorised according to whether they are a judge (including circuit judges, recorders, district and deputy district judges) or magistrate. It should be noted that the number of responses to each question, and options within questions, varies; these are reported in the response total columns for all tables. Percentages were calculated using the response total for each question option rather than the total number of responses overall (1,731). All responses were anonymised during analysis and reporting.
Limitations
Due to the self-selecting nature of this survey research and the fact that only a small proportion of the overall guideline user population responded, the findings of the survey are unlikely to be representative. In addition, as can be seen in Table 1, magistrates make up 90 per cent of the sample and judges just 4 percent (including circuit judges, recorders, district judges and judges who categorised themselves as ‘other’). According to 2022 figures released by MoJ, magistrates make up approximately 79 per cent of the overall sentencer population and judges 21 per cent (these estimates do not include judges whose jurisdiction is outside of criminal sentencing). Magistrates are therefore overrepresented in this survey. Analysis also suggests that respondents may have interpreted different questions in different ways.
Despite these issues, the responses have given a crucial insight into the way in which sentencers, and other users, use the website.
4. Findings
The findings of the survey are presented by question, outlining the points of interest or discussion. Although there was not a large level of variation in responses across questions by differing guideline user type, where appropriate, differences of responses by user groups are mentioned.
4.1 Experience of using the guidelines
Question 2 asked sentencers to indicate how long they had been using sentencing guidelines. Respondents could select only one answer. The first sentencing guidelines were introduced by the Council’s predecessor body, the Sentencing Guidelines Council (SGC) in 2004. A cap of 20 years was therefore placed on responses to this question, although respondents may have been sentencing for longer.
There was broad variation in the length of time respondents had been using sentencing guidelines. Almost half of respondents (48 per cent) had been using sentencing guidelines for between 11 and 20 years, while over half (52 per cent) had been using them for ten years or less, as can be seen in Table 2.
Table 2: Q.2. How long have you been using sentencing guidelines? (single option response)
|
Answer choices |
Per cent |
Response total |
|
Less than 3 years |
23% |
401 |
|
3-5 years |
16% |
271 |
|
6-10 years |
13% |
220 |
|
11-20 years |
48% |
839 |
|
Total |
100% |
1,731 |
Base size: 1,731
4.2 Accessing the guidelines
Question 3 explored the methods of using or accessing the sentencing guidelines. As seen in Table 3, sentencing guidelines were primarily accessed via the Sentencing Council website. However, there were some differences between all respondents and judges only (including circuit judges, recorders, district judges and judges who categorised themselves as ‘other’). When comparing Tables 3 and 4, higher proportions of judges said that they continue to use a hard copy of the guidelines (which are no longer produced by the Council), printed copies of the online guidelines, or legal reference books such as ‘Archbold: Sentencing Guidelines’ at least some of the time, compared to all respondents.
Table 3: Q.3. When using sentencing guidelines how often do you use… (single response option, all respondents)
|
Answer choices |
Always |
Most of the time |
Some of the time |
Rarely |
Never |
Response total |
|
The online version of the guidelines via the Sentencing Council website |
69% |
14% |
8% |
6% |
4% |
1,690 |
|
The Sentencing Council app |
18% |
8% |
12% |
12% |
50% |
1,416 |
|
A third party app |
4% |
2% |
3% |
6% |
85% |
1,334 |
|
A printed version of the online guideline |
<0.5% |
1% |
4% |
10% |
85% |
1,344 |
|
The hard copy published by the Sentencing Council (for guidelines published up to 2018) |
0.5% |
1% |
3% |
6% |
90% |
1,334 |
|
A legal reference book (such as ‘Archbold’ etc.) |
<0.5% |
1% |
7% |
11% |
82% |
1,341 |
|
Another way not mentioned above (please specify below) |
1% |
<0.5% |
1% |
2% |
96% |
1,253 |
|
Other (please specify) |
– |
– |
– |
– |
– |
38 |
Respondents could select one response for each of the options presented above.
As can be seen in Table 4, in comparison to all respondents, judges were less likely to use the Sentencing Council app – only 2 per cent of judges always used this compared to 18 per cent of all respondents. This is to be expected as typically judges have been issued with a court laptop for their work (which does not provide the app), whereas magistrates have, until recently, been issued with a court iPad which would use apps. These iPads have since been replaced with a laptop similar to the judges’ laptops. The app is now therefore only accessible via a personal iPad.
Table 4: Q.3. When using sentencing guidelines how often do you use… (single response option, all judges)
|
Answer choices |
Always |
Most of the time |
Some of the time |
Rarely |
Never |
Response total |
|
The online version of the guidelines via the Sentencing Council website |
67% |
28% |
3% |
3% |
0% |
76 |
|
A legal reference book (such as ‘Archbold’ etc.) |
2% |
3% |
39% |
34% |
21% |
61 |
|
A printed version of the online guideline |
3% |
3% |
20% |
20% |
53% |
60 |
|
The Sentencing Council app |
2% |
0% |
2% |
15% |
82% |
55 |
|
The hard copy published by the Sentencing Council (for guidelines published up to 2018) |
2% |
2% |
15% |
24% |
58% |
55 |
|
A third party app |
0% |
0% |
0% |
2% |
98% |
54 |
|
Another way not mentioned above (please specify below) |
0% |
2% |
7% |
2% |
89% |
46 |
Respondents could select one response for each of the options presented above.
Free text responses to this question were provided by 50 respondents. Comments were coded thematically; the themes from this are presented in Table 5 (note that 12 comments have been excluded to avoid duplication of multiple choice responses already provided or because they were not relevant to the question).
As can be seen in the table, 11 respondents reported using a shortcut link to the website. This was the most prominent theme, while eight sought advice from a clerk or legal advisor either for their access to legal reference books (such as ‘Banks on Sentence’) or for general advice, and five used a search engine (Google or other). Two specific third party apps were specified by four respondents to be used in conjunction with the sentencing guidelines: Sentencing Guidelines by Ambay Software (now unavailable) and UK Court Manager. One mentioned Westlaw, an “online legal research service and proprietary database for lawyers and legal professionals”.
Table 5: Q.3. Summary of free text response themes on sources of guideline information (free text response option, multiple options possible)
|
Theme |
Count |
|
Shortcut link on court laptop/eJudiciary/HMCTS Court Store |
11 |
|
Advice from clerk/legal advisor |
8 |
|
Search engine used to find appropriate guideline |
5 |
|
Third party app |
4 |
|
Colleagues |
2 |
|
|
2 |
|
Bench book guidance |
1 |
|
Common Platform (a digital case management system) |
1 |
|
CPS website |
1 |
|
Hard copy – other publication |
1 |
|
Own records |
1 |
|
Westlaw |
1 |
|
Total |
38 |
Base size: 38
4.3 Accessing the guidelines – hardware
As can be seen in Table 6, respondents primarily accessed the guidelines using a Windows laptop, which are used in both the magistrates’ court (following the phase out of court iPads) and the Crown Court.
Table 6: Q.4. If accessing guidelines online or with an app, what hardware do you mainly use? (single response option, all respondents)
|
Answer choices |
Per cent |
Response total |
|
Windows laptop |
65% |
1,100 |
|
iPad |
21% |
350 |
|
Desktop |
6% |
100 |
|
Android tablet |
3% |
46 |
|
iPhone |
<0.5% |
9 |
|
Android smartphone |
<0.5% |
5 |
|
Other (please specify) |
6% |
94 |
Base size: 1,704
There was no apparent difference between types of respondents for this question. However, some judges did outline that they used a secondary device for home working or ease of use of systems in court. Responses from judges only are displayed in Table 7. No judges reported using an Android tablet or smartphone, or iPhone.
Table 7: Q.4. If accessing guidelines online or with an app, what hardware do you mainly use? (single response option, judges only)
|
Answer choices |
Per cent |
Response total |
|
Windows laptop |
75% |
57 |
|
Desktop |
8% |
6 |
|
iPad |
7% |
5 |
|
Other (please specify) |
11% |
8 |
Base size: 76
Looking at all respondents again, ‘other’ free text responses were coded and results are presented in Table 8. A large number (64) of responses duplicated previous answer options – these were therefore not included. As this question only permitted respondents to select one option, many of the sentencers used the free text box as a way to notify the Council that in many circumstances, a Windows laptop is used in conjunction with other hardware for example, a phone or tablet, depending on the circumstance. Some said they used court laptops when sitting but used a secondary or alternative device if they needed to reference material at home (mainly a phone or iPad). Other respondents noted that for ease they would use two devices in court, one for accessing court systems and another for the guidelines. Some respondents stated they had used Apple products (MacBook or iMac) rather than Windows, which was not listed in the question options.
Table 8: Q.4. Summary of free text response themes on hardware used to access guidelines (free text response option, multiple options possible)
|
Theme |
Count |
|
Apple computer (Mac or MacBook) |
14 |
|
Two devices |
14 |
|
Laptop (unspecified) |
1 |
|
Third party app |
1 |
|
Total |
30 |
Base size: 30
4.4 Accessing the guidelines online
Table 9 overwhelmingly shows that, when accessing guidelines online, respondents predominantly find the guidelines via the Sentencing Council’s website (79 per cent) or via the Sentencing Council app (24 per cent). These figures are broadly in line with the results of question 3, where 69 per cent of respondents always used the online version of the guidelines via the website and 18 per cent always used guidelines via the app. Respondents who stated that they accessed the guidelines via ‘other’ routes, mentioned using the eJudiciary homepage (the internet homepage for court users and the judiciary), shortcuts on the desktops of court (Windows) laptops, the Common Platform (a digital case management system) and via a bookmark function on search engines, as can be seen in Table 10.
Table 9: Q.5. If accessing guidelines online, how do you find a relevant guideline? (multiple response)
|
Answer choices |
Per cent |
Response total |
|
Directly via the Sentencing Council website |
79% |
1,346 |
|
Via the Sentencing Council app |
24% |
403 |
|
Google/search engine |
9% |
149 |
|
Via a third party app |
5% |
81 |
|
Other (please specify) |
3% |
50 |
Base size: 1,710
Fifty respondents left free text responses after selecting ‘other’. A small number of responses were not related to the question and were therefore excluded from Table 10.
Table 10: Q.5. Summary of free text response themes for accessing guidelines online (free text response option, multiple options possible)
|
Theme |
Count |
|
Shortcut to website (desktop and eJudiciary) |
28 |
|
Common Platform |
4 |
|
Colleagues |
3 |
|
Website bookmarked |
2 |
|
Memory |
1 |
|
Total |
39 |
Base size: 39
Brief comments from the free text responses include: “[I found the guideline] with difficulty as the indexing is poor”; “it can take some time finding the relevant guideline with the current search function”; and “I do not think the search method is intuitive at all”. Similarly to the responses for question 3 and judges’ lack of use of the Council’s app, only a small number (ten) reported that they used the app and one reported that they used a third party app.
4.5 Steps in the guideline
Table 11 displays the responses to question 6, which asked respondents how often they read through each of the steps in the guideline. This outlines a general pattern that sentencers were more likely to refer to the earlier steps of the guidelines. This may be expected as the main sections of the guidelines, such as culpability and harm, aggravation and mitigation (factors of the case that may increase or decrease the sentence), as well as the sentencing table, are contained within these steps. Although no reasoning was provided for this, this may be explained in part by free text responses to questions in the survey, which revealed a theme of familiarity with the content of sections. This meant that, if sentencers were familiar with the content of a section of the guideline, they would not revisit this section for each case for which it may be applicable.
Table 11: Q.6. Thinking about a typical sentencing exercise, how often do you read through the following steps in an offence specific guideline? (single response option)
|
Answer choices |
Always |
Most of the time |
Some of the time |
Rarely |
Never |
Response total |
|
Step 1 – Determining the offence category |
84% |
13% |
2% |
1% |
0% |
1,639 |
|
Step 2 – Starting point and category range (i.e., sentencing table and aggravating and mitigating factors) |
91% |
9% |
<0.5% |
<0.5% |
0% |
1,638 |
|
Step 3 – Consideration of any factors which indicate a reduction for assistance to the prosecution |
62% |
17% |
9% |
8% |
3% |
1,632 |
|
Step 4 – Reduction for guilty pleas |
55% |
12% |
14% |
15% |
4% |
1,628 |
|
Step 5 – Dangerousness |
39% |
19% |
22% |
16% |
4% |
1,609 |
|
Step 6 – Totality principle |
34% |
21% |
28% |
15% |
2% |
1,622 |
|
Step 7 – Compensation and ancillary orders |
29% |
24% |
34% |
11% |
2% |
1,628 |
|
Step 8 – Reasons |
34% |
20% |
23% |
17% |
5% |
1,617 |
|
Step 9 – Consideration for time spent on bail (tagged curfew) |
27% |
16% |
24% |
28% |
5% |
1,612 |
Respondents could select one option for each step of the guideline.
4.6 Application of aggravating and mitigating factors not included in the guidelines
The guidelines contain a non-exhaustive list of additional factual elements, also known as aggravating and mitigating factors, that relate to the context of the offence and the offender. Sentencers identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment of the sentence.
Responses to question 7, about application of aggravating and mitigating factors not in the guidelines, showed slight variance, as presented in Table 12. Despite this, 71 per cent of respondents stated that they applied aggravating and mitigating factors not listed in offence specific guidelines at least some of the time. Around a quarter of respondents stated that they rarely apply alternative factors and a very small number (39 respondents or 2 per cent) noted that they never apply alternative factors.
Table 12: Q.7. How often do you apply aggravating and mitigating factors which are not listed in an offence specific guideline? (single response option)
|
Answer choices |
Per cent |
Response total |
|
All of the time |
14% |
229 |
|
Most of the time |
12% |
195 |
|
Some of the time |
45% |
743 |
|
Rarely |
26% |
429 |
|
Not at all |
2% |
39 |
Base size: 1,635
Judges were more likely than the overall sample to report that they apply factors not listed within the guidelines some of the time, with 65 per cent selecting this response. Twelve per cent rarely applied factors outside of the guideline and six per cent reported they do so all of the time.
4.7 Overarching guidelines
As well as the offence specific guidelines, the Council has produced nine overarching guidelines, including a General guideline for use where no specific guideline exists for a certain offence. The overarching guidelines cover broader common points of consideration for sentencers such as domestic abuse and the sentencing of children and young people. They are designed to be used in conjunction with offence specific guidelines where applicable.
Question 8 asked respondents how often they accessed and applied the overarching guidelines listed in Table 13. Across all guidelines, responses varied, and no consistent pattern occurred. In general, the guideline for sentencing children and young people was referred to and applied the least often. However, this may be accounted for by the fact that, as shown in Table 14, the majority of respondents stated that they did not sit in youth court (and as such would not generally hear cases that this guideline would be relevant for). This is perhaps unsurprising as cases involving sentencing children and young people make up a small proportion of the overall court workload. For example, recent MoJ statistics (2021-2022) state that of 88,600 first time entrants to the criminal justice system, 9 per cent were children aged 10 to 17.
On analysis, it appears there may have been slight confusion with the wording of the question regarding the distinction between accessing and applying the guidelines. Many of the free text responses outlined that the principles of the overarching guidelines are commonly applied, however the guidelines are not physically accessed every time they are applicable. This was due to familiarity with the principles of the guideline generally, which many respondents related to their own level of experience.
Table 13: Q.8. How often do you access and then apply the following overarching guidelines, where they are relevant to a case? (single response option)
|
Answer choices |
For every case |
For most cases |
For some cases |
Rarely |
Never |
Response total |
|
Allocation |
25% |
22% |
34% |
16% |
4% |
1,595 |
|
General guideline: overarching principles |
20% |
24% |
35% |
18% |
3% |
1,620 |
|
Imposition of community and custodial sentences |
29% |
27% |
35% |
8% |
2% |
1,630 |
|
Offences taken into consideration |
25% |
20% |
30% |
20% |
5% |
1,621 |
|
Overarching principles: domestic abuse |
35% |
22% |
32% |
9% |
2% |
1,620 |
|
Reduction in sentence for a guilty plea |
40% |
16% |
20% |
18% |
5% |
1,638 |
|
Sentencing children and young people |
19% |
10% |
12% |
13% |
46% |
1,567 |
|
Sentencing offenders with mental disorders, developmental disorders, or neurological impairments |
28% |
18% |
29% |
19% |
5% |
1,614 |
|
Totality |
31% |
23% |
31% |
13% |
2% |
1,604 |
Respondents could select one response for each overarching guideline.
Thematic coding was carried out on the responses for those who selected ‘rarely’ or ‘never’ and left a comment (754). Although it was not always possible to identify which guideline a comment related to, where possible, comments were matched with the overarching guideline to which they were relevant – results are presented in Table 14. Across the guidelines, 57 comments were not related directly to the question. These have been excluded from the table.
A key theme was a feeling of familiarity with the guidelines, which meant respondents did not deem it necessary to access the guidelines for every case for which the guideline may be relevant. The theme of ‘Inexperience of the guideline user’ includes those who had not been sentencing long enough to need to refer to the guideline, where cases do not arise very regularly.
The overarching guidelines have been abbreviated in Table 14, set out below:
- A = Allocation (for determining whether cases should be dealt with by a magistrates’ court or the Crown Court)
- GOP = General guideline: overarching principles (for sentencing offences where there is no offence specific guideline and for use in conjunction with offence specific sentencing guidelines)
- I = Imposition of community and custodial sentences (principles and practical guidance for sentencing community and custodial sentences)
- TICs = Offences taken into consideration (relevant where the court is asked to take into account offences that have not been charged and to pass a sentence to reflect all the offending behaviour)
- DA = Overarching principles: domestic abuse (sentencing offences committed in a domestic context)
- GP = Reduction in sentence for a guilty plea
- CYP = Sentencing children and young people (for sentencing offenders under the age of 18)
- MH = Sentencing offenders with mental disorders, developmental disorders, or neurological impairments (‘mental health guideline’)
- T = Totality (applies when sentencing an offender for multiple offences or when sentencing an offender who is already serving an existing sentence)
Table 14: Q.8. Summary of free text response themes for accessing overarching guidelines (free text response option, multiple options possible)
|
Theme/guideline |
A |
GOP |
I |
TIC |
DA |
GP |
CYP |
MH |
T |
Total |
|
Respondent familiar with the content of the guideline |
96 |
104 |
68 |
85 |
73 |
162 |
73 |
67 |
104 |
728 |
|
Guideline not appropriate in type of court respondent works in e.g., Youth or Family court/ respondent does not sit on this type of case |
13 |
3 |
2 |
5 |
6 |
3 |
414 |
23 |
2 |
471 |
|
Irregularity of type of case seen in court |
17 |
15 |
4 |
62 |
10 |
10 |
28 |
59 |
15 |
220 |
|
Legal adviser advice sought in place of referring to guideline |
24 |
21 |
15 |
24 |
19 |
21 |
18 |
20 |
22 |
184 |
|
Lack of court time |
8 |
8 |
8 |
10 |
5 |
9 |
7 |
7 |
6 |
68 |
|
Combination of factors |
9 |
7 |
4 |
7 |
5 |
9 |
8 |
7 |
8 |
64 |
|
Inexperience of the guideline user |
1 |
2 |
1 |
7 |
1 |
2 |
12 |
11 |
3 |
40 |
|
Guidelines referred to when appropriate to do so |
1 |
2 |
5 |
3 |
2 |
4 |
5 |
4 |
2 |
28 |
|
Respondent not aware of the guideline |
1 |
1 |
1 |
4 |
2 |
0 |
1 |
7 |
2 |
19 |
|
Guideline explained to magistrate by Legal Adviser |
3 |
1 |
0 |
1 |
0 |
2 |
3 |
3 |
3 |
16 |
|
Overarching guidelines are not relevant to all cases |
2 |
2 |
1 |
2 |
2 |
2 |
2 |
2 |
1 |
16 |
|
Respondent does not find the guidelines helpful. Preference of experience. |
1 |
1 |
1 |
1 |
0 |
1 |
0 |
0 |
1 |
6 |
|
Discussed in the retiring room |
1 |
1 |
0 |
1 |
0 |
0 |
0 |
1 |
1 |
5 |
|
Advice sought from colleagues (collaboration or otherwise) |
0 |
0 |
0 |
0 |
1 |
1 |
0 |
2 |
1 |
5 |
|
Respondent refers to own notes |
1 |
1 |
0 |
1 |
0 |
0 |
1 |
0 |
0 |
4 |
|
Total |
178 |
169 |
110 |
213 |
126 |
226 |
572 |
213 |
67 |
1,874 |
Respondents’ answers crossed multiple themes, therefore the total is higher than the number of respondents.
Although the topics covered by the overarching guidelines vary significantly, key themes arose across the responses. Any particular points of interest that arose in relation to a specific guideline have been noted below.
A small number responding against each guideline thought that the guideline was not relevant to their work or said they did not refer to the guideline as the type of case did not present regularly within court (either because they were new magistrates, they rarely see cases for which they would need to refer to the guideline or they would consult with their legal advisor). It was particularly rare for the type of case to arise for which sentencers would need to consult the Offences taken into consideration (TICs) guideline.
Respondents also shared comments in relation to a combination of factors listed in Table 14. These included a lack of time to reference them, or that they refer to the guideline only in unusual cases where specific reference needs to be made.
Respondents also made comments which did not strictly relate to the question, noting their difficulties in locating the overarching guidelines leading to “wasted time” in court, that they and colleagues refer only to the offence specific guidelines or that due to recently becoming a magistrate, there have not been many opportunities to use the guidelines.
It is worth noting that of the 572 respondents who provided free text responses relating to the Sentencing children and young people guideline, 414 (or 72 per cent) specifically mentioned that they did not sit in the youth court and therefore do not need to refer to that particular guideline.
Out of the 213 respondents responding about the ‘mental health guideline’, 59 noted the irregularity of cases seen in court, a handful further clarifying it was rare for a mental or developmental disorder or neurological impairment to be linked to the commission of the offence rather than being just a consideration. Due to this, they felt there was no need to refer to the guideline.
4.8 Sentencing in the absence of an offence specific guideline
Although the Council has published just under 200 guidelines covering over 300 offences, not all offences are covered. In the instance that there is no sentencing guideline, sentencers are asked to refer to the General guideline: overarching principles.
Question 9 explored the alternative sources of support used by sentencers where an offence specific guideline has not been published by the Council. Respondents selected answers from the list presented in Table 15. Fewer than half of the respondents (48 per cent) said they would refer to the General guideline: overarching principles and the majority of respondents (96 per cent) stated that they would rely on legal advisers or counsel submissions in these situations. However, it is worth remembering the large proportion of magistrates who responded to the survey in relation to this finding and that legal advisors are only present in the magistrates’ court.
Table 15: Q.9. What sources of support do you rely on in sentencing where there is no relevant offence specific guideline? (multiple response option)
|
Answer choices |
Per cent |
Response total |
|
Legal advisers/counsel submissions |
96% |
1,575 |
|
Guidelines for similar offences |
59% |
967 |
|
The General guideline for offences without specific guidelines |
48% |
791 |
|
Previous experience of similar cases |
45% |
737 |
|
Court of Appeal case law |
15% |
250 |
|
Other (please specify) |
4% |
72 |
Base size: 1,731
Seventy-two respondents also submitted free text responses to question 9; these are presented in Table 16. Some respondents entered answers not strictly relevant to the objective of the question. These have therefore not been included.
Table 16: Q.9. Summary of free text response themes for sources of support when no offence specific guideline has been published (free text response option, multiple options possible)
|
Theme |
Count |
|
Literature on sentencing |
18 |
|
Advice sought from colleagues |
14 |
|
Advice sought from court official(s) |
9 |
|
Consult legislation |
7 |
|
Search engine |
3 |
|
Other Sentencing Council material |
2 |
|
Guidelines for similar offences |
1 |
|
Training materials |
1 |
|
Total |
55 |
Base size: 54
A key theme was seeking advice from either colleagues who may be more experienced or had dealt with a similar case in the past or from other court officials (23). Specific roles referenced included the legal adviser (six), CPS (four), advocates (three) and counsel (two).
Those who stated they would reference other material published by the Council mentioned considering harm and culpability in line with other offences and adopting a similar approach (two), referring to other guidance on the website (one) and using the overarching guidelines (one).
Sentencing literature, including ‘Banks on Sentence’, ‘Archbold: Sentencing Guidelines’, Thomas’ ‘Sentencing Reference’ and other case law, was referenced by 18 respondents. Of the two who mentioned case law, one stated that they would reference precedent of the same tribunal level which had not been appealed to higher courts. For instance, if a case was being sentenced at the Crown Court, they would reference non-binding case law from the Crown Court (rather than that which had been appealed to the Court of Appeal). The other outlined that the legal adviser would comment on the relevant case law. It is therefore possible that this may represent a slight crossover with the multiple choice option of ‘Court of Appeal case law’ which not was selected by this respondent.
4.9 Imposition of sentences
Question 10 asked respondents about their awareness of the dropdown information on the imposition of custodial and community sentences within the offence specific guidelines. Eighty-four per cent of respondents were aware of the dropdown explanations and referred to them, as can be seen in Table 17.
Table 17: Q.10. Are you aware of the dropdown boxes which appear in many offence specific guidelines at step two after the sentencing table, explaining the principle behind imposing custodial sentences, community orders and fines? (single response option)
|
Answer choices |
Per cent |
Response total |
|
Yes, I am aware of them and refer to them |
84% |
1,444 |
|
Yes, I am aware of them, but don’t refer to them |
8% |
143 |
|
No, I am not aware of them |
8% |
142 |
Base size: 1,729
If respondents stated that they referred to the dropdown explanations in question 10, they were routed to question 11 which aimed to capture whether they were found to be helpful, the results of which can be found in Table 18.
Ninety-two per cent of respondents stated that they found the dropdown explanations either very helpful or fairly helpful. A very small number thought that they were not very helpful or not at all helpful. Of the 8 per cent who were aware of them but do not refer to them, 66 per cent stated this was because they had read the information before and understood the principles.
Table 18: Q11. Do you find these dropdown explanations helpful? (single response option)
|
Answer choices |
Per cent |
Response total |
|
Very helpful |
40% |
578 |
|
Fairly helpful |
52% |
760 |
|
Neither helpful nor unhelpful |
7% |
99 |
|
Not very helpful |
0.7% |
10 |
|
Not at all helpful |
<0.5% |
1 |
Base size: 1,448
Respondents who answered, ‘not very helpful’ or ‘not at all helpful’, were invited to explain why via a free text response. While only 11 respondents selected these options, 36 respondents chose to leave responses meaning there are a higher number of responses than expected – the themes of which are presented in Table 19 below. Some respondents also entered answers not strictly relevant to the objective of the question; these have not been included in the table.
Table 19: Q.11. Summary of free text response themes for why explanations are not helpful (free text response option, multiple options possible)
|
Theme |
Count |
|
Explanations overlooked: difficult to locate |
9 |
|
Explanation length too long |
8 |
|
Explanation not always relevant |
4 |
|
Unable to refer to explanations due to time constraints |
4 |
|
Familiarity with content of explanations |
3 |
|
Explanation not specific enough |
1 |
|
Inclined to refer to explanations for unfamiliar/irregular offences |
1 |
|
Total |
30 |
Base size: 30
The most prominent theme was that the explanations were overlooked due to difficulty locating the expanded text. One magistrate also expressed difficulty in managing the dropdown functions of the guideline while using an iPad. Suggestions were made to better highlight the text. One respondent mentioned that it was helpful for the text to be available within the guideline to prevent having to navigate between multiple windows.
Respondents also referenced the length of the dropdowns. Comments included that they can be “overcomplicated”, “over wordy”, “too much to read” and that too much information is contained within them. Suggestions were made to summarise the key points of the text using bullet points or to limit explanations to the fine bands, community order levels and factors to consider for considering suspension of custodial orders. Contrary to this, some suggested that the explanations should be separated from the guidelines, which would prevent constant scrolling on the page of the guideline. Respondents also noted time constraints as a reason why the dropdowns were not as helpful as they could be.
Despite this, respondents noted they would refer to the explanations if there was a specific point they wished to clarify within a case, if they were unfamiliar with a point of the guideline, or wanted to refresh their memory.
Table 20 outlines why respondents said they do not refer to the dropdown explanations. Again, a theme of familiarity arose as 66 per cent stated that they had read the dropdowns before and understood the principles set out in them.
Table 20: Q.12. Why do you not refer to the dropdown text? (single response option)
|
Answer choices |
Per cent |
Response total |
|
I have read the dropdowns before and understand the principles set out in them |
66% |
95 |
|
I have read the dropdowns before and found them unhelpful |
12% |
18 |
|
I do not need the dropdowns; I can sentence without them |
8% |
11 |
|
I had difficulty being able to access/locate/read the dropdowns |
4% |
6 |
|
Other (please specify) |
10% |
15 |
Base size: 145
Of the small number of those who left free text responses to question 12 (presented in Table 21), six respondents mentioned lack of time or time pressures as the dropdown text “takes a while to read”. Two respondents noted they had forgotten that the dropdowns were there or that they had “forgotten how helpful they could be”. Two mentioned they used third party apps, one of which did not specify an app and one mentioned Court Manager, which has the guidelines “built in”. Another respondent (a magistrate) said they preferred to discuss the key points with a legal advisor. Some responses were not relevant to the question or duplicated the response selected in question 12 and were excluded from Table 21.
Table 21: Q.12. Summary of free text response (themes) for not referring to dropdown text (free text response option, multiple options possible)
|
Theme |
Count |
|
Lack of time |
6 |
|
Forgot the dropdown is available |
2 |
|
Third party app preferred |
2 |
|
Consultation with legal advisor |
1 |
|
Total |
11 |
Base size: 11
4.10 Expanded explanations
‘Expanded explanations’ appear for certain aggravating and mitigating factors within step two of most guidelines. They provide considerations for sentencers around the circumstances in which to apply the factors. At the time of the research, explanations that are able to be expanded online are indicated by dotted lines under the appropriate factors. 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.
When asked, 76 per cent of respondents were aware of the dropdown expanded explanations and referred to them, as can be seen in Table 22.
Table 22: Q.13. Are you aware of the available explanations for certain aggravating and mitigating factors that explain the type of issues to consider when applying them and do you refer to them? (single response option)
|
Answer choices |
Per cent |
Response total |
|
Yes, I am aware of them and have referred to them |
76% |
1,315 |
|
Yes, I am aware of them but do not refer to them |
6% |
111 |
|
No, I was not aware of them |
18% |
305 |
Base size: 1,731
The majority of respondents (95 per cent) who were aware of them found the expanded explanations helpful, as shown in Table 23. Five per cent were indifferent and a very small number did not find them helpful.
Table 23: Q.14. Do you find the expanded explanations for aggravating and mitigating factors helpful? (single response option)
|
Answer choices |
Per cent |
Response total |
|
Very helpful |
46% |
604 |
|
Fairly helpful |
49% |
638 |
|
Neither helpful nor unhelpful |
5% |
64 |
|
Not very helpful |
0.6% |
8 |
|
Not at all helpful |
<0.5% |
1 |
Base size: 1,315
If respondents answered, ‘not very helpful’ or ‘not at all helpful’, they were invited to explain why via a free text response. The themes of the free text responses are presented in Table 24.
In total, despite only nine respondents stating that the expanded explanations were ‘not very helpful’ or ‘not at all helpful’, 31 respondents provided feedback. Some respondents entered answers not strictly relevant to the objective of the question. These have therefore not been included.
Table 24: Q.14. Summary of free text response themes for why explanations were not helpful (free text response option, multiple options possible)
|
Theme |
Count |
|
Lack of court time to refer to the explanations |
6 |
|
The content of the explanations is familiar |
4 |
|
Explanations need to be more specific |
3 |
|
The content of the explanations is repetitive (between like offences) |
2 |
|
Underlining (to indicate presence of explanation) was misinterpreted |
2 |
|
Advice received from colleagues in place of referring to explanations |
2 |
|
Explanations are forgotten or not used by colleagues |
2 |
|
Explanations difficult to access |
2 |
|
Explanations difficult to interpret |
1 |
|
Some explanations are more helpful than others |
1 |
|
Total |
25 |
Base size: 25
Of those who specifically answered that the expanded explanations were not helpful or not at all helpful (nine), four stated that they were familiar with the content of the explanations through experience or thought that the content was “obvious”. One reported that this was not a criticism and acknowledged that “[the explanations] will always have to tread a fine line between being overly prescriptive and unhelpfully vague”.
One magistrate said, “it’s only that I’ve been a JP [justice of the peace] for 25 years and many things are embedded in my memory”. One respondent noted that the explanations were often repetitive between similar offence specific guidelines. However, some magistrates noted that if they were unfamiliar with the guideline or offence, they would be more likely to access the expanded explanations. Or, if there was a lack of time, they would consult with their legal advisor.
Perhaps due to the format or way that the explanations are presented, one respondent misinterpreted the intention of the explanations and noted that the “underlined guidelines help reinforce the certain elements of a case we should be focussing on”. This comment may be misinterpreting the underlining which indicates that there is a link to a further explanation rather than placing particular emphasis on the factor itself.
Rather than respondents noting that the explanations themselves were not helpful, a lack of court time was mentioned, either that they did not have time to refer to the explanations, or that they were too long. In relation to this, one respondent said: “guidelines should be simple and easy to read quickly. [With the presence of the dropdowns] they are becoming far too complicated.” This is a similar thought to that suggested in question 11 for the dropdowns in relation to the imposition of community and custodial sentences guideline. In contrast, of the free text responses received, three respondents thought the explanations could be more specific or were “too open”.
One respondent suggested that expanded explanations could be helpful if made available for step one factors, as this would help to clarify points of subjectivity for particular offences such as actual bodily harm (ABH) and grievous bodily harm (GBH), where there can often be a large amount of debate between guideline categories.
One respondent thought that the explanations could sometimes be unclear or difficult to interpret. Another respondent stated that, in order to take it into account, use of the word significant needed to be made “more specific” due to its subjective nature. It is not clear which expanded explanation this comment was made in relation to, however, as the word ‘significant’ appears in several expanded explanations.
Interestingly, one magistrate noted their frustration that “other magistrates choose to ignore them, using the ‘interests of justice’ excuse”. This comment may refer to the Sentencing Code which states that the courts must follow any relevant sentencing guidelines, unless it is contrary to the interests of justice to do so.
When asked why they do not refer to the expanded explanations, once again, respondents noted a theme of familiarity with the content of the explanations, with 49 per cent selecting this as a reason for not referring to them, as shown in Table 25.
Table 25: Q.15. Why do you not refer to the expanded explanation(s)? (single response option)
|
Answer choices |
Per cent |
Response total |
|
I have read the explanations before and understand the factors |
49% |
54 |
|
I do not need the explanations; I understand the factors without them |
25% |
27 |
|
I have read the explanations before and found them unhelpful |
8% |
9 |
|
I have difficulty being able to access/locate/read them |
7% |
8 |
|
Other (please specify) |
11% |
12 |
Base size: 110
Table 26 presents findings from analysis of free text responses (note: two comments were removed to avoid duplication). Similarly to findings on the imposition of sentences, four of the nine respondents mentioned time constraints to be a contributing factor to not referring to the expanded explanations. Two expanded on this, one stating that the explanations were not used by colleagues and that they feared that to refer to the dropdowns themselves “may slow down the process”. The other referred specifically to the lack of time for their reference during discussion in the retiring room, rather than in court as had been acknowledged in previous question responses. Two respondents had forgotten that the dropdowns were available, and one did not realise that they could be expanded.
Table 26: Summary of free text response themes for not accessing expanded explanations (free text response option, multiple options possible)
|
Theme |
Count |
|
Lack of time |
4 |
|
Forgotten availability of explanations |
2 |
|
Principles are covered in training |
1 |
|
Advice sought from legal advisor |
1 |
|
Not yet needed to refer to explanation |
2 |
|
Total |
10 |
Base size: 10
Other reasons for not referring to the expanded explanations included: the principles are covered in training and did not need to be referenced again (one); advice was sought from the legal advisor (one); or that due to being new to their role, they had not needed to refer to them during a case at the time of their response (one).
4.11 Fine calculator
The fine calculator is a tool that sits on the Sentencing Council’s website and is designed to assist sentencers in the magistrates’ courts in calculating the total financial penalty in a case. It is not, however, a decision-making tool. Magistrates and magistrates’ court users were asked whether they were aware of the Sentencing Council’s fine calculator (the tool is not applicable in the Crown Court). As can be seen in Table 27, the majority (88 per cent) of users were aware of and used the Council’s fine calculator. Eleven per cent reported that they were aware of the calculator but did not use it and fewer than one per cent were unaware of the feature.
Table 27: Q.16. (For magistrates and magistrates’ courts users) Are you aware of the Sentencing Council’s fine calculator? (single response option)
|
Answer choices |
Per cent |
Response total |
|
Yes, I am aware of it and use it |
88% |
1,458 |
|
Yes, I am aware of it and don’t use it |
11% |
178 |
|
No, I was not aware of it |
<1% |
9 |
Table 28: Q.16. Summary of free text response themes for why respondents did not use the fine calculator (free text response option, multiple options possible)
|
Theme |
Count |
|
Third party app calculator preferred |
58 |
|
Preference to calculate the fines without the use of the SC fine calculator |
52 |
|
As a legal advisor, respondent is not required to use the function |
34 |
|
Issues with inputting, formatting and/or incorrect calculations |
33 |
|
Too time consuming |
22 |
|
Fine calculation allocated to others |
13 |
|
Total |
212 |
Base size: 184
Similar to that reported elsewhere in the survey, a large proportion of respondents who do not use the Sentencing Council’s fines calculator noted their preference for using a third party app (58). Many respondents mentioned the app, UK Court Manager, which was reported to be “simpler”, “easier to use” and “more user-friendly” in comparison to the Council’s app, which one respondent said was “clunky and [has] a very poor user experience”. Another respondent listed two features which gave insight as to why they preferred the alternative app: “it is colour coded and has the pop-up box”. One respondent favoured Ambay (this is no longer available), which was said to be “far superior”.
A preference for calculating fines without the use of the fine calculator was noted by 52 respondents. Comments related to speed and ease to calculate by hand or with an ordinary calculator. Some more senior magistrates also noted that the use of the calculator was allocated to a colleague and that they would then check it alongside the legal advisor. A small number of respondents noted their use of a printed graph, or that they would look up table or paper fines charts.
One respondent stated that although they use the fine calculator, they do not use all of the features. They spoke of the need for the calculator as “essential for the various cut off dates for the surcharge”.
Two respondents noted concerns with the calculator and judicial discretion:
calculators encourage a misguided sense of precision whereas the sentencer should look at the result, take a step back and determine the ‘right amount’ [and] on a regular basis those using the calculator have a misguided faith in the result and so don’t spot when they have made an error.
Thirty-three respondents to the free text question outlined issues with inputting, formatting and/or incorrect calculations. Some of these made suggestions for improvements, for example: “The sequential entry does not really allow changes without starting again. A calculate button would be preferable that operates on the data as entered at the time of the calculation”. Three magistrates stated that they found the calculator difficult to use as they had received no training.
Despite raising difficulties, two respondents used the free text response to express positive comments about the calculator: “It’s very good in that it gets all the elements of an offence tied together” and “I think it’s great!!”.
4.12 Drink-driving calculator
The drink-driving calculator was created to assist sentencers to calculate the disqualification end date and to take into consideration any impact on this date due to attendance at a course. The tool was published in April 2021.
Magistrates and magistrates’ court users were asked whether they were aware of the drink-driving calculator and whether they used it. As can be seen in Table 29, 1,647 respondents answered this question. Although 87 per cent of respondents were aware of the function, only 63 per cent used it. A smaller proportion, 13 per cent, were not aware of the calculator.
Table 29: Q.17. (For magistrates and magistrates’ courts users) Are you aware of the Sentencing Council’s drink-driving calculator, which helps sentencers to calculate disqualification periods? (single response option)
|
Answer choices |
Per cent |
Response total |
|
Yes, I am aware of it and use it |
63% |
1,039 |
|
Yes, I am aware of it but don’t use it |
24% |
398 |
|
No, I was not aware of it |
13% |
210 |
Base size: 1,647
Respondents who answered that they were aware of it but did not use the tool were invited to share their reasoning. The themes of these free text responses are presented in Table 30 (note that these cover 411 responses from 373 respondents as some raised more than one theme).
Table 30: Q.17. Summary of free text responses themes on why respondents do not refer to the drink-driving calculator (free text response option, multiple options possible)
|
Theme |
Count |
|
Legal advisor leads on this calculation |
191 |
|
Third party calculator preferred |
71 |
|
Issues with inputting, formatting and/or incorrect calculations |
49 |
|
Preference to calculate disqualification manually |
31 |
|
Respondent has not needed to use the function |
19 |
|
Difficulty locating/accessing function |
11 |
|
Court instructed not to use the function |
8 |
|
Respondent under assumption feature was not in use |
6 |
|
Presiding justice normally carries out the calculation |
5 |
|
Respondent is a legal advisor and is not required to use the function |
5 |
|
As a presiding justice this task is allocated to the wingers |
5 |
|
Feature is too slow |
3 |
|
Lack of time |
3 |
|
Function is too complicated |
2 |
|
Not confident in using the feature |
2 |
|
Total |
411 |
Base size: 373
Eight respondents stated that they have been instructed not to use the calculator due to the belief that the tool was faulty and/or that there were discrepancies between the calculator and a spreadsheet reportedly prepared for legal advisors. One magistrate cited the complexity and length of time to input dates which meant that legal advisors had become “proficient in using it and we are pleased to accept their advice”. There was also a preference for the legal advisors to carry out this task, to “ensure uniformity” and “no errors occur” (almost 200 respondents confirmed that the calculation of fines is carried out by the legal advisor). Interestingly, five legal advisors reported that they do not access the calculator as members of the bench complete this calculation.
A third party calculator was preferred by 71 respondents. These appeared in apps previously mentioned in this report, including Court Manager and Ambay which were cited frequently by this group. A small number noted use of the Justices’ Clerks’ Society (this is now the Justices’ Legal Advisors and Court Officers’ Service) calculator located in a spreadsheet. One respondent noted that, despite using a third party app to calculate the length of disqualification, they would sometimes cross check the result with the Sentencing Council calculator.
Reasons for respondents’ preference for third party apps are as follows:
- “[the UK Court Manager app] feeds [in the] date for the drink-drive course into the pronouncement, which it can then build into a stream (such as when there is a community sentence with requirements along with the disqualification and Drug Rehabilitation Requirement (DRR) course).”
- “far more intuitive and easy to use”
- “with Court Manager I can have four tabs open [that are] clearly marked so it’s easy to move between calculators. Accessing your app requires lots of movement and dropdowns, your user interaction process is too slow in a busy court and makes us look unprofessional.”
Almost 50 respondents experienced issues with inputting information, formatting, and/or incorrect calculations, which caused some to lack confidence in the tool. Users cited issues with disputes over dates against those calculated by the legal advisor on a different system, one mentioning “significant discrepancies” and another stating differences of “a couple of days”. The tool was described as “hit or miss” and potentially overcomplicated: “We just need, number of months disqualified, means you cannot drive again until after X date. If you complete the drink-drive course by X then this will reduce the disqualification by X and you can drive again after X.” In contrast to this, of those who used the function, many stated that they would check the figures with their legal advisor.
Eleven magistrates/magistrates’ court users reported difficulty locating or accessing the drink-driving calculator due to the navigation on the website or that they couldn’t access the function at all: “It’s not exactly obvious” and “I don’t know where to find it”. A small number mentioned that they had difficulty accessing the calculator on a court laptop and one reported struggling with multiple screens/tabs open and preferred to write the dates on paper. One respondent cited this as the reason for their preference for a third party app as it allowed them to easily switch between tabs. Due to a lack of familiarity with the tool, one respondent felt it would be too slow to use.
Despite criticism, the free text response option was used to feedback positive comments on the calculator. Respondents stated, “I think it’s great!!” and “very good and very helpful”.
4.13 Pronouncement card builder
The pronouncement cards are designed to help magistrates explain the court’s decision fully to offenders, victims, the public and all court users. They are produced by the Judicial College and cover both adult and youth courts.
The pronouncement card builder was introduced in January 2021 and was designed to help magistrates construct and read out complex pronouncements compiled from multiple cards while being able to keep their focus on the court.
Magistrates and magistrates’ court users were asked whether they were aware of the builder and whether they used it. As shown in Table 31, respondents that were aware of it and did not use the builder (66 per cent) outweighed those who used it (29 per cent). Only a small proportion of magistrates/magistrates’ court users were not aware of the builder (five per cent).
Table 31: Q.18. Are you aware of the pronouncement card builder, which helps magistrates to explain the sentences they impose fully and clearly? (single response option)
|
Answer choices |
Per cent |
Response total |
|
Yes, I am aware of it but don’t use it |
66% |
1,082 |
|
Yes, I am aware of it and use it |
29% |
481 |
|
No, I was not aware of it |
5% |
78 |
Base size: 1,641
Of the sixty-six per cent stated they were aware of it and did not use it; many respondents (934) chose to leave comments, some of which covered multiple themes. The total in Table 32 therefore appears higher than the number of comments left. Responses were coded thematically.
Within the responses it became clear that there was an overlap in the relevance to the pronouncement card builder and the pronouncement cards themselves, which can be found separately on the Council’s website (linked above). Due to this, there were comments from sentencers feeling that they did not need to use the builder in order to pronounce the sentence due to their experience or familiarity. Many had printed versions of the pronouncements which they found to be more practical in preparing to read to the court.
As can be seen in Table 32, the most prominent theme was the primary use of the tool by the presiding justice, which many respondents noted they were not. Magistrates normally sit in a group of three when in court, with one being the presiding justice who speaks in court and presides over proceedings (of the magistrates who responded to this survey it is not possible to identify what proportion are a presiding justice).
The two magistrates sitting on either side are referred to as wingers. Of those who are wingers, a few noted that they may refer to the tool to ensure the appropriate elements have been captured. A small number of respondents who were not sentencers, for example, legal advisors, stated that they would not use the tool themselves but would ensure that the pronouncements were correct in court.
Table 32: Q.18. Summary of free text response themes for why the pronouncement card builder is not used (free text response option, multiple options possible)
|
Theme |
Count |
|
The tool is primarily used by the presiding justice, which the respondent is not |
530 |
|
The tool is not user friendly |
120 |
|
Preference to amend pronouncements for each defendant |
50 |
|
Third party app preferred |
48 |
|
Lack of time |
46 |
|
Preference to build pronouncements using the cards |
31 |
|
Tool not needed due to experience |
31 |
|
Printed copies preferred |
17 |
|
Tool is not helpful |
15 |
|
Sentence can be pronounced without use of the tool |
15 |
|
No need to refer to the tool |
10 |
|
Pronouncements are too long |
6 |
|
Difficulty locating/accessing tool |
5 |
|
Total |
924 |
Base size: 899
The next most prominent theme, mentioned by 120 users, was in relation to the tool being difficult to use or that it was not user friendly. Comments were made regarding the tool itself as well as its use on hardware, such as iPads. Lack of time was noted by 46 respondents, with some noting that the tool was clunky and therefore too time consuming to use in a busy court. One respondent similarly noted that they were not able to return to a previously saved pronouncement and therefore it had to be done on a “daily basis” which “presumes a level of preparation time which is not available”. Another respondent noted that they are more familiar with the location of the individual pronouncements on the contents page of the pronouncement cards and therefore does not use the builder.
Despite this, there is an element of unfamiliarity with the builder which could contribute to it not being used. Multiple respondents stated that they had not received training or had not had the time to get to grips with the tool ahead of using it for the first time in court.
Other responses focused on the content or wording of the pronouncement cards, rather than the builder itself. Although this was mentioned by many in relation to the level of user friendliness of the cards, 50 respondents also mentioned that they would rephrase the wording of the cards (while maintaining the key elements) to tailor or amend the pronouncement to the offender in a clear and understandable manner. Multiple respondents noted the importance of eye contact with the offender when explaining the sentence and had concerns that this would be lost if they focused on reading the cards out word for word.
Again, a preference for a third party app arose from the responses, with Court Manager referenced multiple times. The app was considered to be more user friendly than the Council’s tool. A small number of respondents noted difficulty with the drag and drop feature when using the iPad app and found it easier to use on a laptop.
4.14 SentencingACE Tool
SentencingACE is a tool designed for judges sentencing in the Crown Court. It allows judges, when they have decided what sentence they intend to impose, to check quickly and easily that all elements of that sentence – relating to the offence, the offender and the type and level of penalty – are lawful. Use of SentencingACE is entirely voluntary for judges, unlike the sentencing guidelines, which the courts must follow unless doing so would be contrary to the interests of justice.
Crown Court judges and users were asked if they were aware of the tool and whether they used it. As can be seen in Table 33, of the small number of circuit judges and users who responded to the survey, just under half (45 per cent) stated that they were unaware of the tool, 13 per cent were aware of it and regularly used the tool, and 42 per cent were aware of the tool but did not use it.
Table 33: Q.19. (For circuit judges and Crown Court users) Are you aware of the SentencingACE tool, which helps judges check that all the elements of the sentences they impose are lawful? (single response option)
|
Answer choices |
Per cent |
Response total |
|
No, I was not aware of it |
45% |
29 |
|
Yes, I am aware of it but don’t use it |
42% |
27 |
|
Yes, I am aware of it and use it |
13% |
8 |
Base size: 64
Those who did not use the tool were invited to share their reasoning for not accessing the tool, and their responses are summarised in Table 34. In total, 25 comments were received (please note: the total in this table appears slightly higher as some comments encompassed multiple themes).
Table 34: Q.19. Summary of response themes explaining why judges and Crown Court users did not use the SentencingACE tool (free text response, multiple themes possible)
|
Theme |
Count |
|
Lack of time |
10 |
|
The tool offers little assistance |
6 |
|
Tool is too cumbersome |
4 |
|
Respondent plans to use the tool in the future |
3 |
|
Difficulty locating the tool |
3 |
|
Respondent does not like the tool |
1 |
|
Total |
27 |
Base size: 25
The most common theme was a lack of time to access the tool. One respondent reported the tool to be:
…another time-consuming layer of complexity. Lists are long and preparing a sentence in each case by reference to all of these guidelines and tools is too much work. One simply does not have the time to consider all of the materials one should.
This was confirmed by a second respondent who referred to the potential length of their daily court list. Despite this, two respondents stated that they might use the tool if a sentence was “particularly difficult” and if they had “sufficient preparation time”.
Six sentencers responded that the tool was of little assistance. Two expanded on their answers, with one noting that “I feel I know the legality of my sentences”. The second related use to the ever-evolving environment of the court, noting that the tool could be used to check the sentence before court, however “things may change during the submissions that mean it is no longer applicable”.
4.15 The Sentencing Council website
In question 20, respondents were asked how easy they found it to use the website for offence specific and overarching guidelines, as well as navigating the steps within the guidelines. As presented in Table 35, guideline users generally found it either ‘very easy’ or ‘fairly easy’ to find the sections listed; however, some noted that it was ‘not very easy’ to find offence specific guidelines in particular.
Table 35: Q.20. How easy do you find it to… (single response option)
|
Answer Choices |
Very easy |
Fairly easy |
Neither easy nor difficult |
Not very easy |
Not at all easy |
Response Total |
|
Use the Sentencing Council website to access and use guidelines, overall? |
35% |
46% |
11% |
6% |
2% |
1,724 |
|
Find offence specific guidelines on the website? |
18% |
45% |
16% |
17% |
4% |
1,718 |
|
Navigate through the different steps in an offence specific guideline on the website? |
40% |
43% |
12% |
4% |
1% |
1,711 |
|
Find the overarching guidelines (e.g. for sentencing children and young people, totality etc) on the website? |
21% |
42% |
24% |
10% |
3% |
1,674 |
Respondents could select one response for each of the options presented above.
Free text explanations were received from 920 respondents. Responses were coded thematically. Negative comments are presented in Table 36 and positive comments in Table 37. Some respondents also entered answers not strictly relevant to the objective of the question; these have not been included. Themes with fewer than 10 responses are presented in Table 38.
Table 36: Q.20. Summary of negative free text response themes on how easy do you find it to… (free text response option, multiple options possible)
|
Theme |
Use the Sentencing Council website to access and use guidelines, overall? |
Find offence specific guidelines on the website? |
Navigate through the different steps in an offence specific guideline on the website? |
Find the overarching guidelines (e.g. for sentencing children and young people, totality etc) on the website? |
Total |
|
Search function difficult to use/not intuitive |
10 |
297 |
– |
10 |
317 |
|
Title of the guideline does not match charges by police or court list sheet |
– |
273 |
– |
– |
273 |
|
Respondent uses app rather than website (Sentencing Council or third party) |
38 |
36 |
31 |
38 |
143 |
|
Difficulty in finding appropriate pages |
8 |
17 |
1 |
8 |
34 |
|
Difficult to navigate |
11 |
9 |
3 |
11 |
34 |
|
Website is not user friendly |
10 |
2 |
2 |
10 |
24 |
|
Difficulty in using the guidelines in conjunction with other guidelines/court systems |
5 |
7 |
3 |
5 |
20 |
|
Guideline is cluttered/should be simplified |
– |
– |
11 |
– |
11 |
|
Lack of time in court provides difficulty in using the guidelines fully |
2 |
1 |
5 |
2 |
10 |
Table 37: Q.20. Summary of positive free text response themes on how easy do you find it to… (free text response option, multiple options possible)
|
Theme |
Use the Sentencing Council website to access and use guidelines, overall? |
Find offence specific guidelines on the website? |
Navigate through the different steps in an offence specific guideline on the website? |
Find the overarching guidelines (e.g. for sentencing children and young people, totality etc) on the website? |
Total |
|
Website works well |
34 |
15 |
14 |
34 |
97 |
|
Ease of use develops with experience |
26 |
24 |
14 |
26 |
90 |
|
Website/function is user friendly |
16 |
3 |
2 |
16 |
37 |
|
Search function works well |
2 |
20 |
– |
2 |
24 |
|
Search function works well for most offences |
1 |
22 |
– |
1 |
24 |
Of the respondents, 211 had comments which were partly, or fully in relation to the ease of using the Sentencing Council’s website to access and use guidelines. A small number of respondents noted some confusion between the search function on the homepage and the search function for the guidelines. Due to this, respondents noted that they had difficulty in finding the appropriate pages of the website that they had previously been able to find or were looking for, for the first time. This finding was supported by the research conducted by BIT. Despite this, many respondents stated that ease of use of the website, the search function for offence specific guidelines and locating ovrarching guidelines was something which improved with experience or familiarity.
The majority of the comments were in relation to finding offence specific guidelines on the website. Comments predominantly focussed on difficulties of using the search function, mostly that is difficult to use or not intuitive (297). This was also a finding strongly supported by the research carried out by BIT. There was some overlap between finding overarching and offence specific guidelines on the website, primarily around difficulties using the search function, which was described as “the weakest link in the guidelines”. A high proportion of respondents expressed frustration around using the search function for locating offence specific guidelines. Another difficulty identified was that it was thought to “waste time in court”, which causes frustration as, in many cases, the title of the guideline does not match the charges on the court list sheet. Just over 270 respondents referenced this as a key factor that made finding the correct guideline difficult. Difficulty also arose regarding the ability to identify the appropriate search terms to find the appropriate guidelines which often, again, did not match those printed on the charge sheet court users refer to.
Respondents reported that it was difficult to differentiate between guidelines with very similar names, with some guidelines mentioned by multiple respondents as having particular problems (for example, public order and harassment s.4a (Disorderly behaviour with intent to cause harassment, alarm or distress/ Racially or religiously aggravated disorderly behaviour with intent to cause harassment, alarm or distress, s.4a (Harassment (fear of violence)/ Stalking (fear of violence)/ Racially or religiously aggravated harassment (fear of violence)/stalking (fear of violence), and s.5 (Disorderly behaviour/ Racially or religiously aggravated disorderly behaviour)). According to the free text responses from legal advisors and magistrates, this has led to members of the bench sometimes referring to the wrong guideline in court. Legal advisors reported that due to this, they kept a close eye on magistrates to ensure that the correct guideline is used.
Many respondents made suggestions to improve the search function:
- group offence specific guidelines into offence areas (similar to the booklets which used to be produced by the Council). For instance, assault guidelines grouped together
- add the ability to search by offence codes or legislation. It was suggested that this would help with differentiation of offences and ease of correspondence between the charge sheet and sentencing guidelines
- bold the section numbers for ease of differentiating between like guideline titles
- expand the search terms to allow for common references and misspellings
- correspond the offence codes or offence listed on the charge sheet to the search function.
A few common suggestions were made, such as for court case management systems (specifically Libra and Common Platform) to provide a link to the appropriate guideline or for guidelines to include the relevant Crown Prosecution Service (CPS) offence codes. A small number of respondents also suggested numbering the sentencing guidelines so that they could be sure that the same guideline was in use by all relevant parties in court. It was thought that these alterations would save a considerable amount of time in court and simplify the sentencing process. One magistrate said: “The basic information is there but no one is linking them as a means of assisting us to increase speed, reduce error and ensure we consider all relevant aspects to determine each case.”
As Table 37 shows, respondents noted that ease of use of the website and familiarity of locations of certain functions, information or guidelines increased with experience. A small number noted difficulty with using the guidelines at the same time as other court systems, the Common Platform for example, and also having multiple tabs/screens open or in use for cross reference. In contrast, several sentencers stated that prior to the court beginning, they would open each relevant guideline in separate tabs. This was to save time locating the guidelines during court time and for ease of switching between screens. This finding is also supported by BIT’s research. Two respondents noted that they often used the bookmark function on their browser to save frequently accessed guidelines. This was a feature which was praised in relation to the app. Respondents stated it would be a useful addition to the function of the website and would allow them to prepare for their day in court and prevent difficulties switching between guideline pages.
A small number also said that due to the size of the laptop screen, it could be difficult to see the guidelines. A suggestion was made by one user to review the colours used on the website as this had caused them difficulty in court (specifically the white text on a blue background).
Some mentioned that they had difficulty referring to the offence specific guidelines in conjunction with the overarching ones because of the need to have multiple tabs open. Due to this it was suggested that the information of the overarching principals guidelines could be incorporated into the offence specific guidelines, perhaps in the form of a dropdown list (similar to that in the Imposition of community and custodial sentences guideline). However, in contrast, a handful of respondents felt that the guidelines were “cluttered” and could be “simplified”.
Respondents reported that they had difficulty finding the overarching guidelines. Several respondents stated that the guidelines were difficult to find using the navigation pane and search criteria. A small number of respondents stated that they had difficulty recalling the location of the guidelines, even after accessing them previously. In a similar theme from across the survey, it was reported that ease of finding the guidelines improved with experience and regular use.
Table 38: Q.20. Summary of free text responses to ease of navigating through the guidelines (free text response option, multiple options possible)
|
Theme |
Count |
|
Website is easy to navigate |
4 |
|
Order of steps is not consistent |
3 |
|
Guideline is not user friendly |
1 |
|
Some guidelines are more difficult to follow than others |
1 |
|
Scrolling can become tedious |
1 |
|
Total |
10 |
Base size: 10
5. Conclusion
Analysis of this survey has improved understanding of how users access, use and interact with the Sentencing Council’s website. It has identified areas which could be improved to impact the usability of the tools, functions and guidelines available, such as the search function and fine calculator. In response to these findings, as well as the recommendations set out in the BIT report, the Council is considering a number of changes and improvements to improve the experience of guideline users.
Acknowledgements
We would like to thank the sentencers, legal advisors and court users who contributed their time to inform this research project.
The author
Harriet Miles, Research Officer, Office of the Sentencing Council.