Court of Appeal
There have been judicially created sentencing guidelines in England and Wales for over 25 years. From the early 1980s the Court of Appeal increasingly laid down guidelines in the form of judgments. But it was still relatively rare for the Lord Chief Justice to deliver guideline judgments. The guidance was broad and, by the late 1990s, the judgments had covered only a small proportion of offences.
Sentencing Advisory Panel
The Crime and Disorder Act 1998 created the Sentencing Advisory Panel. The Panel was established to draft and consult on proposals for guidelines, refer them back to the Court of Appeal for consideration and, in that way, to inform the issuing of a guideline judgment. The guidelines remained under the control of the senior judiciary and the Court of Appeal was not obliged to accept the Panel’s recommendations, although it did in most cases.
Sentencing Guidelines Council
In 2001, following a Home Office review of the sentencing framework in England and Wales, the Halliday Report recommended changes that led to the establishment of the Sentencing Guidelines Council by the Criminal Justice Act 2003. The Sentencing Advisory Panel continued to draft and consult on guidelines but the Sentencing Guidelines Council, rather than the Court of Appeal, took ultimate responsibility for the creation and form of guidelines. This was the first time that anyone other than a judge had been involved in setting sentencing guidelines. The Courts had a statutory obligation to ‘have regard’ to the guidelines.
In 2008 the government established a working group to examine the advantages, disadvantages and feasibility of a structured sentencing framework and permanent sentencing commission. Led by Lord Justice Gage, the commission reported in May 2009, recommending the establishment of a single sentencing council.
The Sentencing Council was established by the Coroners and Justice Act 2009 to prepare sentencing guidelines. In preparing guidelines, the Council must have regard to:
- the sentences imposed by courts in England and Wales for offences;
- the need to promote consistency in sentencing;
- the impact of sentencing decisions on victims of offences;
- the need to promote public confidence in the criminal justice system;
- the cost of different sentences and their relative effectiveness in preventing re-offending; and
- the results of the Council’s monitoring of the operation and effect of the guidelines.
Judges and magistrates must follow the guidelines issued by the Sentencing Council ‘unless the Court is satisfied that it would be contrary to the interests of justice to do so’.