'There is too much discretion, and not enough law, in the sentencing process.' Discuss

Recognition of such problems has recently been addressed by Parliament who made attempts to curb judicial discretion in areas, which it dominated. This can be seen most distinctly in the Crime (Sentences) Act 1997 which has introduced mandatory and prescribed minimum sentences. However, this Act too seems to have found critique largely from Dr David Thomas who recognises that the methodology of these changes, highlight the omissions and confusion resulting from late amendments, defective drafting and legislation by incorporation. Moreover, it would seem that the introduction of yet another statute would only create even more practical problems for the judiciary.

In addition to this The Criminal Justice Act 1991 also failed in its attempt to impose fetters upon judicial discretion. This statute intended to impose a new structure and new restrictions however it simply left judges with the discretion as to the length of custodial sentences or indeed whether to enforce a custodial sentence to begin with. When one turns to the 1990 White Paper on this Act it seems doubtful whether a new

structure and new restrictions actually were the driving force because it clearly stated that “''No government should try to influence the decision of the courts in individual cases. The independence of the judiciary is rightly regarded as a cornerstone of our liberties.” Moreover, and more to the point it states, “It is not the Government's intention that Parliament should bind the courts with strict legislative guidelines. The courts have shown great skill in the way they sentence exceptional cases. The courts will properly continue to have the wide discretion they need if they are to deal justly with the great variety of crimes which come before them.” 

As there is much public concern surrounding matters relating to sentencing practices it is perhaps possible to come to the conclusion that much legislation merely attempts to mask the true degree of discretion given to the judges. To the untrained eye it does seem to achieve this however, to examine deeper into the background of legislation and look at how it is adopted and put into practice by judges simply demonstrates the legislatures supportive stance on discretion. Whilst this is the case sentencing law will remain in its present rudimentary state.

        

Disparity

The formal sources of sentencing law may perhaps provide an outer framework for sentencing decisions and also some internal rules, principles and standards but it is clear that a considerable amount of flexibility is left in the hands of the court in many cases. The problem with a largely unfettered sentencing discretion is that it has resulted in widespread inconsistency. This essentially flouts the principle of equality before the law and the rule of law maxims that the law must be certain and that legal standards must be declared in advance. 

Such inconsistencies have been found in a recent study, which highlighted the enormous disparity in sentencing outcomes among courts, which were meant to be applying the same sentencing laws and practices. A report by the Prison Reform Trust in 1997 found a fundamental lack of consistency in magistrates’ courts decisions throughout England and Wales. The report showed that markedly different sentencing cultures have developed in cities, which are in close proximity to each other. For example, defendants in Sunderland are twice as likely to be imprisoned for driving whilst disqualified and theft, and are over five times more likely to be imprisoned for car related thefts than defendants in nearby Newcastle. Similar discrepancies were found in the four Yorkshire cities and towns of Leeds, Bradford, Huddersfield and Wakefield. The incarceration rate for defendants in Bradford and Huddersfield was nearly twice that in Leeds and Wakefield. The average prison sentence in Bradford was 2.2 months, compared to 3.4 months in Leeds.

Disparities in sentencing outcomes are not confined to the magistrates’ courts alone, inconsistencies can also be found in the Crown courts. It can be seen that in Northampshire out of the total number of people sentenced seventy-three per cent of offenders went into immediate custody. Comparatively only forty-eight per cent of people sentenced in Durham received an immediate custodial sentence.

The argument of Gottfredson is that such disparities should not be considered as unwarranted but that the statistics simply and properly reflect varying degrees of seriousness in the offence and varying characteristics of the offender. Gottfredson, goes on to differentiate between variation and disparity. He holds the standpoint that dispositional variation is based upon permissible, rationally relevant and understandably distinctive characteristics of the offender and the offence may be wholly justified, beneficial and proper, so long as the variable qualities are carefully monitored for consistency and desirability over time. Moreover, since no two offences or offenders are identical, the labelling of variation as disparity necessarily involves a value judgement- what may be regarded as disparity to one person may simply be variation to another. It is only when different sentences are passed for similar offences to similar offenders that variation then becomes categorised as disparity.

However, Gottfredson’s argument that statistics reflect the seriousness of the offence and differing characteristics of the offender fails to explain why, for example, Bedfordshire has the greatest percentage of immediate custodial sentences in both the magistrate’s and Crown Courts. It seems sensible to argue that it is highly unlikely that sentencing judges in Bedforshire have in their presence offenders who commit the most serious offences with either few mitigating or many aggravating factors, which have lead to their consistently high custodial rates. It is possibly more likely that such judges take a more punitive approach to their sentencing practices in comparison to other regions. Support for this can again be found from the Prison Reform Trust report which showed that the chances of an offender going to prison depended far more upon the court where he or she is sentenced than upon the crime which is he or she is charged. Findings of this kind should not be apparent or even conceivable in a sentencing system of which fairness and consistency is the backbone. This however, illustrates perfectly that sentencing practice is tempered by one’s point of view.

Sentencing guidelines

The government “hoped” that the creation of the Sentencing Guidelines Council (SGC) set out in Section 167 of the Criminal Justice Act 2003 (CJA 2003) would ensure consistency of approach among sentencers. The SGC would also, take over from the Court of Appeal, its traditional function of issuing sentencing guidelines for the courts. The Council, chaired by the Lord Chief Justice is responsible for creating and issuing broad sentencing guidance and mode of trial guidelines to the Crown Courts and magistrates’ courts. Section 172 of the CJA 2003 requires that “every court must…in sentencing an offender have regard to any guidelines which are relevant to the offenders case.” The importance of guidelines then appears to be diluted because although guideline judgements have always been regarded as authoritative they are not strictly binding as with good reason the sentencer may depart from them. This was reiterated by Roch LJ in R v Johnson who simply stated that, “ when passing sentence attention must be paid to the guidance given by this court and sentences should be broadly in line with guideline cases. Where the judge has departed from the tariff set reasons should be given.”

Despite the statutory requirement for sentencers to give reasons for their departure from the guidelines the reasons are usually very superficial and mechanistic ‘…such reasons given tend to consist of general references to factors taken into account rather than a detailed explanation of how the judge weighed these factors in arriving at the precise sentence.’ Furthermore, the Court of Appeal has expressly downplayed the importance of providing reasons. It has been said that the statutory provisions, which require reasons to be given are not to be treated as a verbal tightrope for judges to walk. Sentencing judges must comply with their statutory duty, but if they err, the court will not interfere with the resultant sentence unless it is wrong in principle or excessive.

In contrast to Lord Woolf CJ’s assertion that “once the Council is in existence, I would not expect the Court of Appeal to issue guidelines thereafter” Dr Thomas predicts that the Court of Appeal will indeed continue providing guideline judgements. He believes the Court of Appeal will simply label them as something else for example, ‘guidance’ which will avoid direct conflict with the legislation Furthermore, that for some time at least, sentencing judges may be more ready to recognise the authority of the Court rather than the Council. Although, the aim of sentencing guidelines is clear this aspiration for consistency will and cannot be achieved so long as judges can with seemingly such can ease depart from them. What English sentencing requires is more stringent legislation of which judges cannot deviate from. Legislatures it seems have failed yet again to impose significant fetters upon judges’ discretion. This does nothing more than to reinforce the argument that discretion is viewed as desirable and any encroachment on this is likely to lead to injustice.

        

Victoria’s ‘instinctive synthesis’ and America’s ‘sentencing grid’

With the lack of effective sentencing laws and seemingly dispensable guidelines provided by the Council, English Sentencing appears to lie relatively closely alongside Victoria’s approach, which adopts what is termed the ‘instinctive synthesis.’ Here the courts have categorically refused to enforce an analytical and open approach to sentencing. Essentially every sentence imposed represents the sentencing judge’s instinctive synthesis of all of the various aspects involved in the punitive process. Therefore, the conclusion of a case relies solely upon a subjective judgment that has been intuitively reached by an appellate judge.

This method of sentencing has been echoed in most Australian jurisdictions. Recently, Hunt J stated that, “ … the process does not lend itself to the application of rigid formulas. The influences of the different factors to be taken into account in each case are infinitely various…the more unnecessarily analytical the judge becomes, the greater the room for attack upon the sentence on appeal.” This instinctive synthesis method was reaffirmed by the Court of Appeal in Lawson “sentencing is not carried out by the application of formula.” However, it has been argued that even where the instinctive synthesis holds sway the sentencing discretion is not totally unfetterd, since the courts cannot ignore the fundamental principle that ‘like cases should be treated alike.’

The outcome of each case using this method will depend entirely therefore, upon which court room the offender is sentenced in. This draws similarities to the findings in the English sentencing process. Furthermore, due to a lack of rationale sentencers in England will have differing views as to what the aim of punishment should be. For example, is punishment a means of rehabilitation or should it be used as a machine for deterrence. So, in this way the English courts too rely on instinctive judgements perhaps at times adopting a different rationale to each case they are presented with. Such, techniques in sentencing violates the rule of law of consistency and fairness. What will promote consistency is the specification of a rationale however it is precisely that which is missing from the sentencing system. One way of tackling this is to lay down a goal or goals, or principles that can provide courts with a consistent orientation. It is although, important to recognise that consistency provides no guarantee of the rationality and fairness of a system and perhaps this justifies why such ideas have not yet been pursued.

Whereas, in England sentencing guidelines are expressed in words rather than numbers some states in America including Virginia and Minnesota have developed and implemented a more stringent approach, which is known as the ‘sentencing grid.’ The sentencing grid is based upon the desert theory whose basic idea is that punishment is justified as the morally appropriate response to crime and that the punishment should be proportionate to the degree of wrongdoing.  These U.S sentencing guidelines were driven into being as a result of disparate concerns with regard to the treatment and undue leniency in punishment

The sentencing grid comprises of two axes, which determine the presumptive sentence of an offender. Along one side are the offence categories and along the other are categories of ‘criminal history.’ The ultimate sentence therefore, depends where the point along each axis occupied by the offender meet in the middle. Given that judges must follow these sentencing rules or face reversal by appellate courts makes it almost difficult to term them ‘guidelines.’ This is a stark comparison to the English sentencing guidelines whereby judges have taken a seemingly disrespectful view of them with comments such as “the fact that every Court must have regard to the relevant guidelines does not mean that it has to be followed.”

This strict approach to sentencing recognises that largely unlimited judicial discretion without written justifications and appellate review, tended to produce intolerable sentencing discrepancies between similarly situated offenders. In the English sentencing process ‘judges frequently confess that the longer they perform the task of sentencing, the less confidence they have that they know what they are doing’ perhaps explaining why discrepancies occur. So, it would appear sensible if that is the case to adopt a system of numerical, rather than principle based guidelines. Firstly however, the opinion of the courts differs greatly. They hold the strong belief that when discretion shrinks too much affirmative action is needed to recreate it, which would perhaps be the result if a numerical sentencing approach were to be adopted. Secondly, for many circumstances the mechanical application of a rule means injustice; what is appropriate should be tailored to the needs of the individual case. It is only through the exercise of discretion that the goal of individualised justice be attained. The American system perhaps would not allow this degree of individualisation. Lastly, the Virginian guidelines have been accused of perverting constitutional principles and producing great injustices, which is not what one would desire from a legal system.

Conclusion

In conclusion, in England sentencing law speaks only in general terms so that it is left to the sentencing judge to develop and apply the working rules required to give detailed effect to these provisions and principles in actual cases. There is a clear preference by judges in favour of flexibility over certainty. This is more marked in sentencing law than any other area of law. Guideline judgements have illustrated that that it is incorrect to present binding rules and absolute discretion as the only two definitive methods of achieving ‘fairness’ in a system. It seems what is required is a hybrid of the two allowing for both certainty and individualisation. It appears that discretion is a tool indispensable for individualisation of justice and rules alone untempered by discretion, cannot cope with the complexities of modern government and of modern justice. It can be said therefore, that the total exclusion of judicial discretion by legal principle is impossible in any system and in fact a government should be that of ‘laws and of men.’

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