Sentencing Council promises review of Sentencing Guidelines following research by University of Herts academics

The research team did not find any strong or consistent evidence of sentencing disparities for different ethnic groups for the offences looked at, although there were limitations to the data analysed and previous studies have found disparities for drugs offences. The Herts team recommended that further research should be carried out on this issue and the Sentencing Council has commissioned new data collection in the magistrates’ courts and Crown Court which is running from January to June 2023.

The Sentencing Council has published new research carried out by Hertfordshire Law School that examines the potential for the Sentencing Council’s work to cause disparity in sentencing outcomes across demographic groups. The research team focused on protected characteristics that are most relevant for sentencing including sex, ethnicity, age and disability. The Sentencing Council has responded positively to the report. In its formal response, the Council has agreed to make some changes to the language used in the guidelines and has also committed to a programme of work to explore the other recommendations.

The researchers examined a small number of sample guidelines including robbery, theft and harassment and looked at the potential influence of the language, factors and explanatory texts, as well as their structure, the guideline development process, and the Council’s relationship with stakeholders and its communications.

As part of their comprehensive review, the research team analysed a large data set of sentencing outcomes collected by the Crown Courts between 2010 and 2015 and analysed the language and structure used in the sentencing guidelines. The team also carried out extensive roundtable discussions with representatives from a number of civil society organisations, sentencers (including magistrates, district judges, Crown Court judges, and High Court judges) and defence lawyers who all took part anonymously.

The roundtables highlighted concerns about the use of electronic guidelines and expanded explanations which have now replaced the paper guidelines. Some sentencers and defence lawyers acknowledged that the new electronic guidelines are harder to use and that key information is often contained in drop down menus which is a few clicks away and not easily accessible. The Hertfordshire team recommended changes to the format of the expanded explanations and the Sentencing Council have commissioned external contactors to conduct user testing of the digital guidelines, to explore how sentencers use the sentencing guidelines, including how they use the expanded explanations.

The team also recommended introducing a new final step, similar to Step 5 found in the robbery guidelines for children and young people, requiring sentencers to carry out a final review of the sentence to ensure it takes into account all mitigating factors. Although the Sentencing Council has not agreed to adopt this new step, it has agreed to consider this issue as part of its review of the Imposition of community and custodial sentences guideline, which includes looking at whether and when sentencers request pre-sentence reports and so receive all the information needed about an offender.

The Council has also agreed to review whether a separate guideline should be issued for sentencing young adults aged 18 and over.

Some changes to the wording in the guidelines has been agreed though. The Sentencing Council has agreed to remove the examples of wearing a balaclava or hood from the aggravating factor of ‘attempt to conceal identity’ in the robbery guidelines, because of concerns raised that the word ‘hood’ might be more easily associated with young people from certain subcultures. It will also modify the examples given of ‘good character’ which currently includes a reference to carrying out charitable work, acknowledging that not all offenders will have the time and resources to volunteer in this way.

Sentencing Council Chairman, Lord Justice William Davis , said:

“The Sentencing Council welcomes this report as providing an opportunity to examine our work through the lens of equality and diversity. We are committed to promoting a transparent, consistent and fair approach to sentencing. That involves putting equality and diversity high on our agenda.

“We have considered the report’s findings with great care. Our response to the report commits the Council to a programme of work in relation to a number of the issues raised by the research. In these areas we intend either to provide solutions by appropriate amendment of guidelines or to investigate matters in greater depth. This is important and continuing work for the Council.”

The team of researchers which included Dr Qi Chen , Dr Mateja Vuk and Dr Chamu Kuppuswamy , were invited to present their findings to the Sentencing Council conference on 13 Janaury 2023 (see photo).

Diana Kirsch , who led the Herts research team, said:

‘We are pleased to see the publication of our report and our recommendations aimed at promoting fairer sentencing. We are encouraged by the positive response of the Sentencing Council and look forward to hearing the outcome of the further work they are undertaking as a result.’