Sentencing Council: new General guideline for offences without specific guidelines


A new General guideline for sentencing offences that are not covered by a specific sentencing guideline was published on 24 July 2019 by the Sentencing Council. The new guideline will ensure that judges and magistrates follow a structured and consistent sentencing process for these offences.

The Sentencing Council also published expanded explanations that will be embedded in the existing offence specific guidelines. They will add extra information to aggravating and mitigating factors to make it easier for courts to maintain consistency and transparency when sentencing.

The new guideline and expanded explanations, which will come into force on 1 October 2019, are both now available to view on the Sentencing Council’s website, with an illustrative video. They replace and update the 2004 Seriousness guideline. Once they come into force, all old pdfs and paper versions of guidelines will be obsolete and the Seriousness guideline will be withdrawn.

1. What is the purpose of the General guideline?

  • The General guideline will be used by judges and magistrates when sentencing offences for which there is no offence specific guideline. It applies to adult offenders and organisations in magistrates’ courts and the Crown Court.
  • It is designed to provide guidance for sentencing a wide range of offences with different characteristics and different maximum sentences.
  • It will also serve as an overarching guideline for use in conjunction with offence specific guidelines.
  • It updates and replaces the Seriousness guideline published in 2004 by the Sentencing Guidelines Council as an overarching guideline in a format that is easier to access and brings together current best practice in sentencing.

2. Why was the guideline developed?

  • The Sentencing Council has produced offence specific guidelines for most of the high-volume criminal offences sentenced by courts. However, some offences do not yet have a guideline, for example Immigration Act offences and Malicious Communications Act offences.
  • There are also many different offences that individual sentencers will rarely see and that have no guidelines, for example blackmail, wildlife offences or offences relating to planning regulations. 

3. What do courts use when there is no offence specific guideline?

  • Until the General guideline comes into force on 1 October 2019, courts can continue to use the Seriousness guideline for general guidance on sentencing.
  • Both magistrates’ courts and the Crown Court may also use existing guidelines for similar offences as a reference point. In addition, Crown Court judges may refer to relevant judgments from the Court of Appeal.

4. What difference will the General guideline make?

  • The General guideline will provide judges and magistrates with a clear structure to follow when sentencing offences that do not have a guideline.
  • It will also assist defence and prosecution representatives in structuring their submissions to the court.
  • The guideline leaves wide discretion to judges and magistrates but aims to ensure that all relevant factors are considered and given appropriate weight in arriving at the final sentence.
  • There will be more comprehensive guidance in relation to aggravating and mitigating factors than in the Seriousness guideline. This will make it easier for sentencers to maintain consistency and transparency when sentencing.
  • The General guideline will also be used with offence specific sentencing guidelines where some factors are not covered and overarching guidance is required.

5. How will the guideline benefit victims?

  • In all Sentencing Council guidelines, the seriousness of an offence is first assessed by looking at two main things: the culpability of the offender and the harm caused to the victim(s).
  • The structured approach taken in the General guideline ensures that consideration of the harm caused to victims is also central to the sentencing process when sentencing offences for which there is no offence specific guideline.
  • The General guideline also draws the court’s attention to relevant considerations of the harm caused, intended or risked in considering aggravating and mitigating factors.

6. Why are there no sentence levels in the General guideline?

  • The guideline is designed to provide guidance for sentencing a very wide range of offences with very different characteristics and very different maximum sentences, so it cannot specify sentence levels.

 

Expanded explanations in guidelines

1. Why has the Sentencing Council added expanded explanations to existing offence specific guidelines?

  • The additional information will provide sentencers and other court users with useful information relating to commonly used factors in guidelines and improve transparency for victims, defendants and the wider public.
  • They take advantage of the fact that guidelines are now provided in a digital format, so the information can be provided from within individual sentencing guidelines.

2. What are some of the key features?

The expanded explanation for a factor is the same wherever that factor applies. There are expanded explanations for factors that are present in most guidelines such as:

  • previous convictions
  • offence committed on licence or post sentence supervision
  • remorse
  • age and/or lack of maturity
  • sole or primary carer for dependent relatives. 

Expanded explanations also apply to for factors that are less common such as:

  • offence committed while under the influence of drugs or alcohol
  • offence was committed against an emergency worker acting in the exercise of functions as such a worker
  • abuse of trust or dominant position
  • delay since apprehension

The expanded explanations do not change the factors in guidelines – they just provide additional information on the factors that are already in the guidelines.

3. How do expanded explanations apply to new guidelines?

  • From 1 October 2019, the relevant expanded explanations will be added to aggravating and mitigating factors in offence guidelines.
  • When the Sentencing Council introduces new overarching guidelines, links to those guidelines will be added if relevant to the explanations.  For example, the explanation for the factor ‘Mental disorder or learning disability’ will be replaced by a link to the Mental Health Overarching Principles guideline when that comes into effect in 2020.

4. What difference does the extra information make?

  • The expanded explanations are designed to reflect and encourage current best practice rather than to alter sentencing practice.
  • In some cases, the explanations provide links to or extracts from existing overarching guidelines. In other cases, the explanations reflect case law.
  • Having this information easily available within guidelines means that all those involved in sentencing will be aware of the relevant considerations.

5. Do sentencers have to follow the guidance in the explanations?

 

  • The expanded explanations are an integral part of the guidelines and once they are in force (from 1 October 2019) courts must follow them unless it would not be in the interests of justice to do so.
  • The explanations vary in the amount and type of information they contain. The aim is to provide easy access to relevant information without interfering with the ability of the court to sentence appropriately on the facts of the case before it.
  • Guidelines require sentencers to take account of relevant matters and the expanded explanations provide the necessarily material, but they do not tell sentencers precisely how that should be reflected in the final sentence.

6. How might the explanations operate in practice?

  • Prosecution and defence representatives are used to referring to factors in guidelines in their submissions to the court. The expanded explanations will help to ensure that all relevant issues relating to aggravating and mitigating factors are drawn to the court’s attention.
  • As an example, the explanation for ‘Age and/or lack of maturity’ could be valuable to sentencers as it sets out the latest information on how immaturity can impact on offending.  As well as providing concise but comprehensive information, the explanation reminds sentencers of the importance of obtaining a pre-sentence report when considering these issues. 

 

7. Who will these explanations help and how?

  • Judges and magistrates will find it easier to access relevant information on factors in guidelines.
  • Defence and prosecution lawyers will be able to refer to the information in submissions to the court.
  • Defence representatives will be able to use the information to explain to defendants how the sentencing process works.
  • Victims and other interested parties will be able to see how different factors are applied by courts.
  • Overall, the explanations will help to ensure that relevant considerations are taken into account in sentencing and that the process is transparent.  

 

8. What impact will the expanded explanations have on sentence outcomes?

  • The expanded explanations will apply where relevant to all offence specific Sentencing Council guidelines for sentencing adults and organisations. As such they have the potential to affect a large proportion of sentences, but as most of the expanded explanations relate to factors at step two of guidelines – after the starting point has been determined – the potential impact on sentence outcomes is limited.
  • The aim is to improve consistency and transparency in sentencing, and not to increase or decrease individual sentences. However, it is possible that individual sentences could be increased or decreased if in a particular instance a judge or magistrate is not currently following best practice.
  • The Sentencing Council has published a resource assessment giving more details.

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