Outline the factors that influence sentencing decisions of criminal courts in England and Wales and consider whether consistency in sentencing is possible or desirable.

Thus sentences may be individualised, that is based on a consideration of their impact on individual offenders. The circumstances of the offender and the risk they pose must be taken into account. However, sentences may be based primarily on the seriousness of the offence in that they aim to reflect public disapproval or attempt to punish in proportion to the seriousness of the offence. In addition, it is often seen as desirable that sentences should be concerned with justice for, and fairness to, individual offenders, as implied by the due process model. (Davis et al, 1998,p240)

The Criminal Justice Act 1991 directly encouraged judges to pass fewer custodial sentences by introducing statutory criteria to limit their use. It also encouraged the use of community penalties, by changing the name from 'non-custodial penalties' to 'community penalties'. Other aspects of this shift included attempts to make pre-sentence reports more informative and the content of community penalties better known. However, in subsequent years, many of the Act's aims were undermined through magisterial, public and political pressure.

"Judges themselves may have their own individual approach, or philosophy, based on a mixture of the theories of sentencing... they may also be affected by the attitudes and opinions prevailing on their own bench. Thus within individual benches, sentencing norms evolve which could be affected by local considerations producing local variations."

(Hood, 1972 cited in Davies, Croall and Tyrer, 1998 p.263)

There are many factors, which can influence judges decisions, referring to particular cases, the judge or magistrate must consider how serious the particular offence is in relation to other similar offences and assess whether or not the offence had any mitigating or aggravating factors. Judges are also likely to take into account the previous convictions and record of an offender, and the recommendations in the pre-sentence report. Sentencing is not done in a legislative or policy vacuum; there are statutory requirements. All offences have statutory maximum sentences such as fourteen years for burglary of a domestic dwelling, although this maximum is rarely, if ever, used. It provides an indication however of Parliament's view of the seriousness of the offence and so helps to set the sentencing tariff (Davies et al, 1998 p.257).

A major influence on sentences in the Crown Courts in England and Wales is the appeal system. This deals with appeals from the Crown Court against conviction and sentence. Most appeals however, are against sentence. In the 1980s and 1990s the Court of Appeal gave guidance to judges with a series of guideline cases. Guideline cases are those where the appeal court has taken the opportunity to lay down detailed guidance to assist the courts in sentencing. While these cases are an important and influential guide for lower courts in sentencing, they have limitations. First, the Court of Appeal can only respond to cases brought before it: therefore no systematic approach to offences or a certain range of offence can be made. Secondly, the cases that come before the Court of Appeal have, until recently, been a result of appeals against sentence on behalf of the defence. These are examples of relatively open and identifiable influences on sentencing. However, as with any other discretionary process, informal factors also play a role. Sentences may be directed towards different aims, and many different considerations can affect their decision (Davies et al, 1998 p.262).

The sentencing powers of magistrates are subject to certain general statutory restrictions in addition to the maximum penalties prescribed for each individual offence. Magistrates may, having heard the evidence in a case, commit it to the Crown Court for sentence, if they form the view either that the offence was so serious that greater punishment should be inflicted than they have the power to impose. Or, that a longer custodial sentence is necessary to protect the public from serious harm. A person who has been sentenced in the magistrates' court may appeal against sentence to the Crown Court. The appeal takes the form of a complete rehearing of the case, before a circuit judge or recorder and two lay magistrates. The Crown Court has the power to pass any sentence that the magistrates' court could have imposed, even if that sentence is more severe than the one they had imposed. (Sanders and Young, 2000.p487-489)

In the magistrates' courts, sentencing decisions have increasingly been influenced by guidelines issued by the Magistrates' Association (Davies et al, 1998 p.257). These guidelines were originally issued in the 1970's in respect of motoring offences in an effort to curb complaints of inconsistencies between benches. These guidelines proved successful in some cases, especially where the offences could be easily compared. Their use, after consultation with the Justices' Clerks' Association and the Lord Chancellor's Department, was extended to most offences dealt with in the magistrates' courts. More guidelines were issued to clarify the implementation of the Criminal Justice Act 1991 and reflected not only the framework of that Act but also the move towards more structured decision making. The guidelines were reissued in 1993 to reflect the changes in the Criminal Justice Act 1993 and in particular the abolition of unit fines, and again in April 1997. Although the guidelines inevitably lead to greater consistency, their influence can be a source of concern when judges feel unable to give a sentence they think to be appropriate in an individual case. The concern is that the, guidelines, which are merely advisory, become the basis of rigid tariffs (Davies et al, 1998 p.261).

In a detailed review of sentencing decisions in the Court of Appeal, David Thomas identifies a twofold sentencing process. In the first, or primary, sentencing decision, judges decide on the basis of the individual case whether a 'tariff sentence, primarily a retributive deterrent sentence, is appropriate or whether the sentence should be individualised, that is based primarily on rehabilitative grounds (Thomas, 1979 cited in Davies et al, 1998 p.262). Individualised sentences may also be based on incapacitate and deterrent considerations with respect to the individual offender before the court, and will depend on an assessment of the likelihood of their re-offending and the danger they may be to the public. The secondary decision is which sentence will be imposed. Factors affecting the primary decision include both the personal characteristics of the defendant such as age, sex and previous history along with relevant personal circumstances and the seriousness of the offence. Where sentences are individualised it is extremely difficult to discern whether or not they are consistent as many factors may affect the individual case (Thomas, 1979 cited in Davis et al, 1998 p.262).

'There are few offences that carry recommended penalties. The Magistrates' Association and the Home Office give magistrates 'guidance' on appropriate sentences for most offences but they are not bound by it. Both magistrates and judges possess wide discretionary powers in the choice of sentence. Thus the Judiciary is most likely to be publicly criticised over the too harsh or too lenient sentences it hands out in individual cases.'

(Fitzgerald and Muncie, 1983 p. 135-36)

Influences undoubtedly contribute to the variations found throughout the country, which have caused much concern. They may also, arguably, produce disparities not only when individual offenders are compared, but also when groups of offenders are compared. There has been criticism, for example, about the fairness of sentencing policy in relation to women and ethnic minorities. Concerns about the treatment of both unemployed and white-collar offenders raise issues of how far socio-economic status affects sentencing decisions.

Women are generally assumed to be given a more lenient sentence than men are. A view often attributed to a 'chivalrous' attitude on the part of judges, who may assume that a woman's crime is more likely to be related to mental illness or medical problems, and be reluctant to send women to prison especially when they have children. However, it can be argued that women may be more harshly dealt with by the courts, as women who have offended may be seen as 'doubly deviant', deviant as offenders and deviant as women (McLaughlin and Muncie, 1996 p. 137-46).

Hedderman and Hough, 1994 (cited in Davies et al, 1998 p.265) reported that: 'Women are far less likely than men are to receive a custodial sentence for virtually all-indictable offences are, except drugs. When women do receive prison sentences these tend to be shorter than men's, one of the reasons for this is that women are less likely to be dealt with at the Crown Court are. Women are also less likely to receive prison sentences irrespective of the number of previous offences.'

Hedderman and Hough(1994) argue that these findings, 'call into question claims that the criminal justice system is systematically more severe towards women than men. If anything, the evidence points to more lenient treatment of women.' However, Eaton, 1986 (cited in Davies et al, 1998, p.265) found that courts tended to look carefully at female offenders' family and domestic situations, which might lead to the effect of more indirect forms of differentiation, reflecting notions of the 'ideal' woman, related to family and domestic considerations. Where a woman was seen to be capable of looking after her children, and her husband was available to support her, the courts may be more lenient.

There has been considerable concern about whether ethnicity influences the way people are dealt with in the criminal justice system. In one study to estimate the size of any race effect in sentencing, Hood, 1992 (Ashworth, 1997; cited in Maguire, Morgan and Reiner, 1997, p. 1106-8) found that a limited part of the difference in custodial rates between white and non-white offenders might be attributable to racial factors. Flood-Page and Mackie (1998) refer to research showing that: 'ethnic minorities are treated and act in different ways at key stages in the criminal process. There is a lot of evidence that Afro-Caribbean's are less likely to admit an offence and therefore make themselves ineligible for a caution ... This also means that they are less likely to benefit from the discount for a guilty plea' (Flood-Page and Mackie, 1998 p. 116).

The effects of both gender and ethnicity may also be related to the socio-economic circumstances of offenders. Thus it is more likely to be women in adverse socio-economic circumstances that may end up in prison, along with many black offenders who are unemployed. For example in the case of the unemployed, there is a clear example of indirect and 'unintentional' discrimination. It is routinely stated in mitigation for offenders that they are m employment and that imprisonment would lead to the loss of such employment. Such employment is generally regarded as being a sign of good character, and a factor that might help promote good habits and so reduce the likelihood of future offending and thus appeal to judges seeking a rehabilitative approach. The unemployed, having less to lose, may be more likely to end up in prison, as it may be viewed as more difficult to fine unemployed offenders.

However, few studies have found that social status or class alone affects sentencing outcomes. Indeed judges concerned to be fair, and seen to be fair, may be conscious of any likely partiality on the grounds of class. Thus, Mr. Justice Henry, on refusing leave to appeal against a £5million fine levied on one of the Guinness defendants, commented that:

"Punishments are after all intended to be punitive and the court must ensure that a man's wealth and power does not put him beyond punishment.'"

(The Guardian, 3 October 1990; quoted

in McLaughlin and Muncie, 1996 p. 119)

Taken together, consideration of the effects of gender, ethnicity and socio-economic status on sentencing decisions reveals how difficult it is to determine whether any discrimination exists on the part of judges. Nonetheless, at the end of the criminal justice process there are differences in the proportion of sentences received by some groups of offenders. Various attempts to change patterns of sentencing and, in particular, to reduce the use of custody, have been circumvented by judges. Not surprisingly, the English and Welsh system has occasionally been ridiculed regarding their sentencing practices.

The government finally responded to these and similar criticisms by publishing a White Paper, Crime, Justice and Protecting the Public (Home Office, 1990). This formed the basis of an important step to limit the exercise of discretion and to institute clear principles and rules in sentencing which were to be included in the Criminal Justice Act 199 1.

'It was once believed that prison, properly used, could encourage a high proportion of offenders to start an honest life on their release. Nobody now regards imprisonment, in itself, as an effective means of reform for most prisoners... normal social or working habits do not fit, The opportunity to learn from other criminals is pervasive. For most offenders, imprisonment has to be justified in terms of public protection, denunciation and retribution. Otherwise it can be an expensive way of making bad people worse. The prospects of reforming offenders are usually much better if they stay in the community, provided the public is properly protected... "

(Home Office, 1990, p. 18-19, cited in McLaughlin and Muncie, 1996 p. 117)

An alternative to the Criminal Justice Act 199 1, and the philosophical and political changes that it signified, could have been to adopt sentencing guidelines for the courts in much the same way as those favoured in Australia and some states in the USA, during the past decade. Such guidelines essentially prescribe in advance the appropriate penalty for a wide range of offender/offence combinations, based on a much more systematic approach. By providing judges with one set of criteria relating to the circumstances of the offence in question, and a different range of criteria taking into account relevant characteristics of the offender.

Several advantages are claimed for the guideline approach, not least of which is the achievement of greater consistency in sentencing. It also enables sentencing practice to be monitored and subjected to regular review. More importantly, it could provide an effective way of harnessing sentencing policy to the broader aims of penal policy. However, there would be a number of practical difficulties in extending such a model to the English sentencing tradition, particularly if a system of legislative guidelines were adopted, and more so if they were explicitly aimed at reducing overall punitiveness. Apart from the drafting problems that would be encountered, judges could resent the imposition of such a system. Who might not find it difficult to subvert the intended aims through a process of 'destructive interpretation', as has been suggested may have happened to some extent to the 1991 reforms.

Another problem, is the fact that most systems of guidelines have been devised with a limited range of penalties, usually just imprisonment or probation, therefore it would be difficult to adapt to the many measures available to English judges. A possible solution to this particular problem would be to adopt the approach recommended by the Canadian Sentencing Commission (1987), in which guidelines are used in the first instance simply to indicate offences for which the presumptive sentence would normally involve either a community sentence or a custodial penalty. Further guidance, in the form of a presumptive penalty, is only provided in the case of offences involving a presumption of custody. The application of community sanctions would remain at the discretion of judges, though there would then be a price to be paid in terms of consistency of application (Cavadino and Dignan, 1997 p. 105).

'The powers of sentencing are still jealously guarded and attempts to regularise or 'interfere' with them are vigorously resisted. Consequently, as the police bring more people before the courts and the courts continue to impose custodial sentences for many less serious offences, the number of people sent to prison continues to rise. In the meantime, as the quantity of justice dispensed grows, procedures to improve the efficiency and cost-effectiveness of the courts, together with challenges to the fundamental rights of the accused, raise crucial questions about the quality of that justice.'

(Fitzgerald and Muncie, 1983 p. 138)

However, it remains extremely unlikely that English judges would contemplate the use of the guidelines outlined. Although, some critics of the English system would countenance the setting up of an independent Sentencing Council (Ashworth, 1983). In which it is assumed that a wide representation of judges, from all levels of court and from other criminal justice professions, would automatically lend itself to the development of some realistic guidance acceptable to all (Cavadino and Dignan, 1992 cited in McLaughlin and Muncie, 1996 p. 119).

BIBLIOGRAPHY

Ashworth, A (1997) 'Sentencing', in Maguire, M, Morgan, R and Reiner, R (eds.) The Oxford Handbook of Criminology. (2nd ed.) Oxford: Clarendon Press.

Cavadino, M and Dignan, J (1997) The Penal System: An Introduction, (2nd ed.) London: Sage Publications Ltd.

Davies, M, Croall, H and Tyrer, J (1998) Criminal Justice: An Introduction to the Criminal Justice System in England and Wales. (2nd Ed.) London: Longman.

Fitzgerald, M and Muncie, J (1983) System of Justice. Oxford: Basil Blackwell Ltd.

Flood-Page, C and Mackie, A (1998) Sentencing Practice: An examination of decisions in magistrates' courts and the Crown Court in the mid- 1 990's. Home Office Research Study No. 180 London: Home Office.

McLaughlin, E and Muncie, J (Eds.) (1996), Controlling Crime. London: Sage Publications.