Sentencing - Role of sentencing guidelines

Learning Outcomes

This article explains the statutory basis and policy aims of sentencing guidelines in England and Wales, situating them within the Sentencing Act 2020 and the work of the Sentencing Council. It outlines the structured, step-by-step methodology required by the guidelines, from assessing culpability and harm to selecting the starting point, adjusting within the category range, and applying reductions for guilty pleas. It examines how aggravating and mitigating factors are identified, weighed, and articulated in open court, and how previous convictions, TICs, and personal mitigation influence sentence severity. It reviews the scope and limits of judicial discretion, including lawful reasons for departing from guidelines, the requirement to give clear reasons, and the potential for appellate scrutiny. It explores the operation of special sentencing provisions such as dangerousness, extended sentences, and the totality principle in multiple-offence cases. It also discusses the overarching aims of consistency, proportionality, transparency, and fairness, and demonstrates how to apply guideline reasoning to realistic SQE1-style problem scenarios, ensuring that each stage of the analysis is clearly structured, exam-focused, and aligned with the syllabus.

SQE1 Syllabus

For SQE1, you are required to understand the statutory basis, structured application, and policy aims of sentencing guidelines in England and Wales, with a focus on the following syllabus points:

• the statutory authority and objectives of sentencing guidelines and the Sentencing Council
• the structured, step-by-step process for applying guidelines, including the roles of culpability and harm as determinants of offence category
• the identification and practical application of aggravating and mitigating factors in sentencing
• judicial discretion: its scope, limits, and the requirement to provide reasons for departing from guidelines
• principles regulating reductions for guilty plea, totality principle in multiple offence cases, and special sentencing provisions (dangerousness/detention for public protection)
• policy aims of consistency and fairness in sentencing, and how they are embedded in current practice

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the statutory duty of a court regarding sentencing guidelines, and when may a court depart from them?
2. Name two statutory purposes of sentencing and explain how they influence sentencing decisions.
3. What are the main steps a court must follow when applying sentencing guidelines to an offence?
4. Give an example of an aggravating factor and a mitigating factor, and explain their effect on sentence.

Introduction

Sentencing guidelines are systematically developed rules that direct judges and magistrates in deciding sentences for criminal offences in England and Wales. Their statutory purpose is to encourage consistency, transparency, and fairness in the sentencing process, while still allowing courts to consider the circumstances of each individual case. To fully appreciate the operation of sentencing guidelines, it is essential to understand both their legal framework and their practical application.

Key Term: Sentencing guidelines
A framework of rules and guidance issued by the Sentencing Council which courts must follow when sentencing, unless the interests of justice require otherwise.

Key Term: Sentencing Council
The statutory body responsible for developing and publishing definitive sentencing guidelines for England and Wales under the Sentencing Code.

Statutory Authority and Purposes of Sentencing Guidelines

The primary statutory basis for sentencing guidelines is found in the Coroners and Justice Act 2009 and the Sentencing Act 2020 (the Sentencing Code). The Sentencing Council, created by the 2009 Act, is tasked with issuing definitive guidelines for sentencing. These guidelines are updated periodically to reflect developing sentencing practice, societal expectations, and legislative change.

Section 59 of the Sentencing Act 2020 mandates that, when sentencing for criminal offences, a court "must follow any sentencing guideline which is relevant to the offender's case unless the court is satisfied that it would be contrary to the interests of justice to do so." Any court departing from a guideline must publicly state its reasons for doing so.

The purposes of sentencing for adult offenders, set out in section 57 of the Sentencing Code, are:

• the punishment of offenders
• the reduction of crime (including its reduction by deterrence)
• the reform and rehabilitation of offenders
• the protection of the public
• the making of reparation by offenders to persons affected by their offence

Key Term: Purposes of sentencing
The five statutory aims of punishment, deterrence, rehabilitation, public protection, and reparation, which the court must consider in passing sentence.

These purposes inform the type and severity of sentences passed, ensuring sentences are not just punitive but aim to address and reduce offending, rehabilitate individuals, and protect victims and the wider community.

The Step-by-Step Approach to Sentencing

Sentencing guidelines require courts to follow a clearly defined, sequential process when determining the appropriate sentence for each case. This procedure ensures a consistent and proportionate approach, rooted in an objective assessment of facts.

Step 1: Determine Offence Category

Each guideline specifies a matrix for categorising the seriousness of the offence. The two most critical determinants are:

• Culpability: the level of the offender’s responsibility for the offence (ranging, for example, from high intention and planning, to lower recklessness or negligence).
• Harm: the impact, or potential impact, of the offence. This can include physical, psychological, financial, and wider community consequences.

Key Term: Culpability
The offender’s level of blameworthiness, considering factors such as intent, planning, motivation, and role in the offence.

Key Term: Harm
The degree of injury, loss, or risk created by the offence, whether physical, psychological, financial, or otherwise.

For example, a carefully planned aggravated burglary causing serious injury to a victim would be placed in a high-culpability, high-harm category, resulting in a more severe starting point.

Sentencing guidelines usually provide a table, with varying categories based on degrees of culpability and harm, which the court will select based on the evidence presented.

Step 2: Identify Starting Point and Category Range

Once the court has decided the offence category, guidelines prescribe a "starting point" sentence and a "category range". The starting point is the sentence appropriate for a typical case falling within the relevant category, before considering further aggravating or mitigating factors.

Key Term: Starting point
The indicative sentence within a guideline for an offence of particular category seriousness, prior to adjustment for individual factors.

Key Term: Category range
The bracket of sentences in which the final sentence may fall for offences within each category, allowing the court to tailor the penalty according to case-specific features.

The starting point and range set boundaries for judicial choice, limiting disproportionate outcomes and reinforcing consistency.

Step 3: Consider Aggravating and Mitigating Factors

At this stage, the court evaluates the presence of any additional facts that may render the offence more or less serious than a “typical” offence in that category.

Aggravating factors are elements that increase offender culpability or harm, justifying a move up the sentencing range. Examples include:

• previous relevant convictions
• committing the offence while on bail
• use of weapons or threats of violence
• deliberate targeting of particularly vulnerable victims
• planning or premeditation
• offences involving abuse of trust or position

Key Term: Aggravating factor
A circumstance specific to the offence or offender which heightens the seriousness of the offence, potentially leading to a harsher sentence.

Mitigating factors are those that lessen culpability or harm, or reflect positive steps taken by the offender, allowing a downward adjustment within the range. Examples include:

• genuine remorse and/or early admission
• lack of previous convictions or evidence of good character
• mental or physical health conditions that played a role in the offence
• evidence of significant provocation or duress falling short of legal defence
• youth, immaturity, or care responsibilities
• voluntary reparation or compensation to the victim

Key Term: Mitigating factor
A circumstance that reduces the seriousness or blameworthiness of the offence or defendant, justifying a more lenient sentence.

The presence and weighting of these factors require judicial judgment, informed by guideline lists (statutory and non-statutory), but courts must articulate their reasoning for moving above or below the starting point.

Offences Taken Into Consideration (TICs) Defendants may ask the court to deal with other offences alongside those charged, via the TIC mechanism. While this can increase the overall penalty, it avoids multiple prosecutions and is often viewed as a partial mitigation.

Impact of Previous Convictions The nature, relevance, and recency of previous offences may be a considerable aggravating factor, especially if there is a pattern of similar or escalating behaviour.

Step 4: Reduction for Guilty Plea

Where an offender pleads guilty, this will usually merit a reduction in sentence, mainly for reasons of efficiency and empathy with the criminal justice system. The scale of reduction is prescribed by the "Reduction in Sentence for a Guilty Plea" Definitive Guideline:

• Up to one-third reduction if the plea is at the first opportunity.
• Up to one-quarter if the plea is entered after the first stage.
• A further reduction (down to one-tenth) may be available if the plea is entered on the day of trial.

The reduction for guilty plea does not apply to mandatory sentences or requirements, for instance, for minimum sentencing in certain offences.

Courts must publicly state the level of reduction and the reasons for the timing, or for granting less than the maximum.

Step 5: Dangerousness and Special Provisions

Particular sentencing options, such as extended sentences or special custody provisions, will be considered if the offender is classified as dangerous—i.e. if there is a significant risk to members of the public of serious harm from further offences. Specified, violent, and sexual offences require this further dangerousness assessment.

Extended sentences, life sentences, and special custodial sentences for public protection aim to protect the public from the most serious offenders.

Step 6: Totality Principle

Where multiple offences are sentenced together (in the same or linked proceedings), the "totality principle" applies. The court must ensure that the aggregate sentence is just and proportionate, reflecting the overall criminality without being unduly harsh or artificially lenient.

Key Term: Totality principle
The rule that the cumulative sentence imposed for multiple offences must be proportionate to the entirety of the offender’s criminal conduct.

Concurrent sentences may be appropriate where offences arise from the same incident or are closely related; consecutive sentences will be suitable where offences are distinguishable and arise from different facts or conduct.

Step 7: Compensation and Ancillary Orders

The court will then consider whether to impose ancillary orders such as compensation for the victim, orders for forfeiture or destruction of property, restraining orders, or disqualifications. These are not punitive in themselves, but support the purposes of sentencing, particularly reparation and protection.

Step 8: Reasons for Sentence

It is mandatory for courts to give reasons for the sentence passed, referencing the relevant guideline and explaining how the final sentence was reached—including explanations for any deviation from guideline.

Section 52 of the Sentencing Act 2020 requires courts both to announce sentences in open court and to provide clear, sufficient explanation to the defendant and any interested parties.

Step 9: Time Spent on Remand

Any period already served in custody on remand must be properly credited against the final sentence, in line with statutory obligations, to prevent double punishment and ensure proportionality.

Judicial Discretion and Departure from Guidelines

While the duty to follow sentencing guidelines is strict, courts retain the ability to depart from the guideline range if, and only if, to do otherwise would be contrary to the interests of justice in the case before them. This broad concept may include unique facts not contemplated by guidelines, exceptional personal circumstances, or the interests of a victim.

Key Term: Judicial discretion
The authority of judges and magistrates to depart from the prescribed guideline sentence only where the interests of justice so demand, with reasons given.

Whenever a court departs from the guidelines, section 59(3) of the Sentencing Act 2020 requires the reasons to be stated in open court. Examples might include particularly compelling mitigation, the existence of a novel point of law, or where the offence is unusual in nature or gravity.

The appellate courts routinely scrutinise departures from the guidelines, and unexplained deviations can form a ground of appeal or lead to a sentence being quashed for error of principle.

Worked Example 1.1

A defendant is convicted of burglary. The relevant guideline prescribes a starting point of 12 months’ custody for a category 2 offence. The defendant has two previous convictions for burglary (aggravating factor), had been on bail at the time of the current offence (aggravating factor), but entered an early guilty plea (mitigating factor). After due consideration, the court raises the sentence to 18 months to reflect the aggravating features, then applies the full one-third reduction for the early plea, yielding a final sentence of 12 months’ custody.

Answer:
The court systematically applied the sentencing guideline, adjusting for aggravating and mitigating circumstances, and clearly documented its approach to the guilty plea reduction.

The Role of Consistency and Fairness

Central to sentencing guidelines is the pursuit of consistency—similar cases should attract similar sentences. This is essential to ensuring public confidence, upholding the rule of law, and fostering perceptions of justice and proportionality.

However, guidelines do not override the need to consider the individual circumstances of offenders and their offences. The structured approach ensures differences in personal mitigation, differences in the degree of harm suffered by victims, and other specificities are captured and reflected in the sentence eventually passed.

Key Term: Consistency (in sentencing)
Treating like cases alike, and ensuring that similar factual scenarios or similar offenders receive similar sentences across the criminal justice system.

Consistency also means that sentences should reflect the gravity of current offending and the current sentencing climate, adjusting over time as needed by new guidelines.

Worked Example 1.2

Two offenders are convicted of the same section 20 Offences Against the Person Act 1861 offence (malicious wounding). Offender A has no previous convictions, was provoked to violence, and expresses genuine remorse—mitigating factors. Offender B has a significant criminal record and was on licence at the time of the offence—aggravating factors. Both offences are assessed as category 2 under current guidelines. The court sentences Offender A to a high-level community order, while Offender B receives 30 months' custody.

Answer:
The different outcomes are justified because the presence of aggravating and mitigating factors makes the individual seriousness of the two cases distinct, despite the same offence and similar harm outcomes. This is consistent with the structured approach imposed by the guidelines.

Exam Warning

Courts are under a legal obligation to give reasons for both the sentence itself and for any departure from guideline. Failure to provide adequate reasons is a common basis for a successful appeal or quashing of sentence.

Revision Tip

Before answering sentencing questions, always identify and apply the relevant guideline, classify the offence by culpability and harm, evaluate the aggravating and mitigating factors, and check whether any special sentencing provisions could apply.

Key Point Checklist

This article has covered the following key knowledge points:

• Sentencing guidelines have a statutory basis and must be followed unless the interests of justice require otherwise.
• The process for sentencing under guidelines is stepwise, beginning with assessment of culpability and harm.
• Aggravating and mitigating factors then move the starting point within the category range.
• Guilty pleas, when appropriate, trigger specific reductions in sentence.
• The totality principle ensures proportionality in sentencing where there are multiple offences.
• Courts retain limited discretion to depart from guidelines but must always provide reasons.
• Consistency and fairness are core aims of the guidelines, building public confidence in sentencing.

Key Terms and Concepts

• Sentencing guidelines
• Sentencing Council
• Purposes of sentencing
• Culpability
• Harm
• Starting point
• Category range
• Aggravating factor
• Mitigating factor
• Totality principle
• Judicial discretion
• Consistency (in sentencing)