How are Sentencing Decisions Formulated?

Are sentencing decisions provided by judges and magistrates in the UK arbitrary and therefore are they out of touch?

One of the questions that is regularly asked by my students in class or by members of the public is in connection with sentencing levels for different criminal offences in England and Wales. Typically, this has been prompted by witnessing in the media, what they may perceive to be an unduly mild sentence metered out in a court for some offending behaviour.

As a result, there is often a degree of anger or upset at the sentence and a feeling, with concomitant criticism, that sentences are arbitrary and linked to judges and magistrates in the UK being out of touch with public opinion.

The Sentencing Council in the UK provides guidelines for judges and magistrates to assist them in determining appropriate sentences for various offences. These guidelines are not static and can be updated or revised, so it's important to check the latest version on the official Sentencing Council as per the link above.

To punish the offender – this can include going to prison, doing unpaid work in the community, obeying a curfew or paying a fine.

To reduce crime – by preventing the offender from committing more crime, and putting others off from committing similar offences.

To reform and rehabilitate offenders – changing an offender’s behaviour to prevent future crime, for example by requiring them to have treatment for drug addiction or alcohol abuse.

To protect the public – from the offender and from the risk of more crimes being committed by them. This could be by putting them in prison, restricting their activities or supervision by probation.

To make the offender give something back – for example, by the payment of compensation or through restorative justice. Restorative justice gives victims the chance to tell offenders about the impact of their crime and receive an apology.

When considering a sentence, as well as bearing in mind the five purposes of sentencing, the judge or magistrates must refer to the law, including the maximum and, in some cases, minimum sentence and any sentencing guidelines relevant to the offence that has been committed. The sentencing guidelines set out the processes that judges and magistrates must follow and the factors they should consider to work out the appropriate sentence.

The factors taken into account will vary depending on the facts of each individual case but, because the judge or magistrates will be following the sentencing guidelines, they will take a consistent approach. The kind of factors the judge or magistrates will consider will include seriousness of the offence, harm caused to the victim, the offender’s level of blame, their criminal record, their personal circumstances and whether they have pleaded guilty.  These factors may be relevant in determining the type of sentence as well as how long it might be and the type and number of requirements that might be imposed.

So, if you ever want to try and work out the rationale behind some sentencing decisions it would be worthwhile having a look at the sentencing guidelines and assess whether you agree with the sentencing decision.

Ken Kirwan: Editor Eyes on Crime