The Sentencing Council has published draft guidelines on three overarching aspects of sentencing - totality, offences taken into consideration and allocation. It is seeking the views of barristers and other professionals in a three-month consultation.
The proposed guidelines aim to promote a consistent and proportionate application of these principles throughout courts in England and Wales.
Totality is the principle that the total sentence for a number of offences considered together should be just and proportionate, reflecting the overall seriousness of the offender’s criminality.
There is a large amount of case law regarding the principle, but no single source of guidance for the judiciary and practitioners. The guideline aims to bring greater clarity on how totality should be applied.
It is not seeking to bring about any change to sentencing practice other than where the application of the guideline might lead to greater consistency of approach.
The draft guideline includes guidance on issues such as whether a sentence should be concurrent or consecutive and how to structure multiple sentences in a variety of specific situations.
The second draft guideline the Sentencing Council is consulting on is offences taken into consideration (TICs). These are offences which an offender has not been prosecuted for but which are taken into account when they are being sentenced for another offence. Although there is well established practice there is no single source of guidance about the approach the courts should take in this area of sentencing. Therefore the Council has decided to produce a guideline covering the general principles, procedure and approach that should be taken.
As well as asking for views on the proposed approach to the application of TICs overall, the consultation covers other issues including procedural safeguards.
The third draft guideline included in the consultation is on allocation (also known as the mode of trial decision), the decision of a magistrates’ court as to whether an either way offence should remain in the magistrates’ court or be committed to the Crown Court for trial.
Although there is some guidance within the Consolidated Criminal Practice Direction, there are currently no sentencing guidelines on this topic. The guideline aims to encourage a consistent approach by magistrates and thereby ensure that each offender is dealt with by the most appropriate court.
The consultation on the three draft guidelines was launched on 15 September, and responses should be sent by 8 December to: email@example.com
The consultation paper, short guides on allocation, totality and TICs, resource assessment and equality impact assessment can be found at: www.sentencingcouncil.org.uk