Consistent Approach

Nigel Patrick talks through new Sentencing Council guidelines on allocation, offences taken into consideration and totality

Definitive guidelines have been published by the Sentencing Council on three overarching aspects of sentencing: allocation, offences taken into consideration (TICs) and totality.

The guidelines, which will come into force in June, aim to ensure that the principles in each of these areas of sentencing practice are applied consistently in courts in England and Wales.



Allocation

The allocation guideline aims to encourage a consistent approach to allocation decisions so that defendants are tried at the appropriate level. It brings a change in emphasis to the way in which magistrates approach assessing the strength of a case, moving away from taking the prosecution case at its highest. Instead, the guideline encourages the court to make a balanced assessment of the seriousness of the case taking into account both prosecution and defence representations. 


TICs

The Sentencing Council has also produced a guideline for TICs to set out the general principles, procedure and approach and so bring clarity and consistency to this long-standing convention.

The guideline is not intended to bring about changes in sentencing practice other than where the application of the guideline might lead to greater consistency of approach; the types of sentence being passed and the prison population are not expected to be altered. Not all types of offence can be taken into consideration in a sentence and the guideline lists a number of exclusions.


Totality

The third guideline, on totality, has been produced to fulfil one of the Sentencing Council’s statutory duties under the Coroners and Justice Act 2009 (s 120(3)(b)).

The guideline aims to bring greater clarity and transparency to existing sentencing practice for multiple offences and increase consistency of the application of the totality principle. It is not intended to bring about any changes in practice.

Average custodial sentence lengths, and the proportion of offenders receiving the various types of sentence, are not expected to change as a result of the introduction of the guideline.


Consultation

Publication of the guidelines follows a three-month consultation period and the comments and feedback received were taken on board in the production of the definitive guidelines.

As with its other guidelines, the council recognises the need to ensure a consistency of approach across all the courts that will be using these guidelines, while being careful not to include material that would rarely or never be used in one or other court. For this reason, the Crown Court version of the guidelines will not include the allocation guideline and the version of the totality guideline for inclusion in the Magistrates’ Court Sentencing Guidelines (MCSG) will not include the specific application sections on extended sentences for public protection or indeterminate sentences, as magistrates cannot pass these sentences.

The definitive guidelines were published in a Crown Court version and as an update to the MCSG on 6 March 2012 and sent out to all courts, coming into force on 11 June 2012.

The new guidelines can be downloaded from the Sentencing Council’s site – www.sentencingcouncil.org.uk.

Nigel Patrick, senior policy advisor, the Sentencing Council

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