Why do judges and magistrates need guidelines?

Legislation sets maximum, and sometimes minimum, sentences for offences, but the law is written in a way that gives judges and magistrates considerable discretion when it comes to sentencing. Sentencing guidelines help sentencers identify what type and length of sentence they could impose and set out the factors they should consider before making their final decision.

Because all judges and magistrates follow sentencing guidelines, the courts will take a consistent approach to sentencing, whatever the individual circumstances of the case and wherever in England and Wales it is heard.

For more information, see How sentencing works.

Do courts have to follow the guidelines?

Yes, unless the court is satisfied that it would be contrary to the interest of justice to do so. When sentencing an offender for an offence committed on or after 6 April 2010 (when the Sentencing Council was established), the court must follow any relevant sentencing guidelines, unless it would be contrary to the interests of justice to do so.

For more information, go to About sentencing guidelines.

What guidelines has the Council issued?

The guidelines cover some of the most serious and most frequently dealt with offences, including attempted murder, assault, robbery and sexual offences. They also cover some offences that are rarely sentenced and where the courts might need most assistance.

What happens if there is no guideline?

Where there is no guideline for a particular offence, judges and magistrates will refer to the General guideline for sentencing offences that do not have a specific sentencing guideline. The General guideline came into force on 1 October 2019.

judges may also refer to important Court of Appeal judgments to examine how sentences have been reached for similar cases in the past.

The General guideline may also be used with offence-specific sentencing guidelines where some factors are not covered and the courts require overarching guidance.

How does the Council decide which guidelines to develop and how are they developed?

The Council will schedule the production of a guideline according to one or more of the following factors:

  • The Lord Chancellor or Lord Chief Justice formally asks the Council to review sentencing for a particular offence, particular category of offence or particular category of offender and to produce a guideline
  • New legislation requires supporting sentencing guidelines
  • Guidelines issued by the Council’s predecessor body (Sentencing Guidelines Council) require conversion into the Council’s step-by-step approach to sentencing
  • Current guidelines are out of date or incomplete
  • A substantial body of interested parties request a guideline to be issued for a particular area of sentencing
  • Sentencing data suggests that there may be inconsistency in sentencing for a particular offence, particular category of offence or particular category of offender
  • Evidence suggests that a guideline would have a significant effect on sentencing practice, for example, the potential range of available sentences is wide and/or the number of offences sentenced is significant

The process, from first consideration by the Council to publication of a definitive guideline, can extend to 18 months or more but, if the Council believes there is a pressing need, it can be expedited.

In developing guidelines, the Council follows a process that is based on the policy cycle set out by HM Treasury in the Green Book: Central Government Guidance on Appraisal and Evaluation (2018).

For more, see How the Council works.

How do sentencing guidelines reflect the interests of victims of crime?

By law, the Council is required to consider the impact of sentencing decisions on victims, and there must be a member on the Council who has experience of promoting the welfare of victims.

When developing guidelines, the Council makes sure the interests of victims of crime are considered by carrying out research to understand victims’ perceptions and experiences of crime.

Each guideline requires the court to start the sentencing process by assessing the harm that has been caused to the victim. The courts then need to decide how serious the offence is by looking at all the facts of the case, which will include examining factors that relate directly to the victim.

Before any guideline comes into force in the courts, the Council will conduct a public consultation and make particular efforts to ensure the views of victims are represented.

Have we answered your question?

If you can’t find what you’re looking for on the website, please let us know at info@sentencingcouncil.gov.uk.