Exploring Sentencing Practice in England and Wales

J. Roberts

• Publisher: Palgrave Macmillan
• Year: 2015
• Print ISBN: 9781137390394
• eBook ISBN: 9781137390400
• Topic: Social Sciences
• Subtopic: Criminal Law
• Index: Social Sciences

This volume explores the theory and practice of sentencing in England and Wales, exploring issues such as the role of previous convictions, offender remorse and sentencing female offenders, as well as drawing upon a new and unique source of data from the Crown courts.

1

Empirical Sentencing Research: Options and Opportunities

Julian V. Roberts and Mike Hough

Introduction

What do we know about the practice of sentencing in England and Wales? The answer, until relatively recently, was not very much. The explanation for this lack of knowledge lies primarily in the limited statistics and sporadic research record. Although empirical studies have been conducted for many decades now (e.g., Hood, 1962; 1972; 1992), over the decade between 1995 and 2005, only a handful of major empirical studies of sentencing were conducted (e.g., Tarling, 2006; Mason et al., 2007; Flood-Page and Mackie, 1998; Hough et al., 2003; for discussion and reviews of earlier empirical research in sentencing, see Ashworth, 2003; Roberts, 1988; Blumstein et al., 1983).

Most of this research has been conducted in the magistrates’ courts (see Bottomley and Pease, 1986); as Ashworth observed in 2003, ‘research into sentencing in the Crown Court has not been productive.’ (p. 326). One reason for the focus on the magistrates’ courts has been the limited access to the Crown Court until the 1990s (see Ashworth, 1984). The consequence of this limited research record is that answers to relatively elementary questions remain elusive, although several are now addressed in contributions to the present volume. What then, is needed to generate a comprehensive portrait of sentencing?

The most fundamental requirement is a comprehensive statistical database. Practitioners need to understand how the relevant statutes and sentencing guidelines affect the practice of the courts. Experienced advocates may be able to draw upon their own experiences representing clients in court, but there is no substitute for a database of sentences imposed. Knowing what the ‘going rate’ is for a range of offences, with offence and offender characteristics specified in a degree of detail, is a prerequisite for understanding a jurisdiction’s approach to sentencing. Sentencers, too, are surely interested in the sentencing trends in their own area and across the country.

Beginning in 1991 the Home Office published an accessible ‘Digest of Criminal Justice Statistics’ (Barclay, 1991) and a series of digests were published over the next few years. These volumes provided informative graphics and text describing the relative frequencies of different disposals, the average custody rate, and other important indicators of sentencing practice. Unfortunately, the digests ceased publication with the fourth edition in 2003. Thereafter, the Ministry of Justice published an annual report (‘Sentencing Statistics’) containing a great deal of information in the form of statistical tables and accompanying text.

Professional researchers will have found these reports useful, albeit subject to some data limitations to which we return later in this chapter. However, as a resource for anyone beyond the small number of active researchers, the reports were unhelpful. More general audiences – such as policymakers or politicians – do not have the time to search through pages of tables in order to answer a specific query. In any event, the Ministry ceased publication of this annual publication; the last published edition contained data from 2009 (Ministry of Justice, 2010).¹ The report has been replaced by a series of Excel data tables which are updated periodically. The transition – from a research report to tables of data – is regrettable, and even these tables are hard to find on the Ministry of Justice website. (Some sentencing data are also available on the Open Justice website).²

It may be argued that the Sentencing Council has assumed the function of providing information about sentencing practices. This body, created in 2010 to replace the Sentencing Guidelines Council and the Sentencing Advisory Panel, has a statutory duty under Section 129(1) of the Coroners and Justice Act 2009 to publish statistics on sentencing patterns from the magistrates’ courts and Crown Court in local justice areas across the country. The Council has certainly published a great deal of information about sentencing patterns,³ but it has not taken on (and, at least within its current resources, could not be expected to take on) the task of providing a comprehensive portrait of sentencing trends at both levels of court. The Council’s research publications have to date focused on issues of direct relevance to its guidelines. These include the extent to which courts depart from the Council’s guidelines, the likely impact of proposed new guidelines on prison places, and limited descriptive information on the use of mitigating and aggravating factors (see Sentencing Council, 2014). This information is helpful yet fails to fulfil the essential need of providing an annual comprehensive portrait of sentencing in the magistrates’ courts and the Crown Court.

Resources permitting, the Sentencing Council could play a more significant role however. The Coroners and Justice Act 2009, which established the Council, assigned it powers to ‘promote awareness of sentencing of offenders by courts ... including, in particular ‘the sentences imposed by courts’. One way of promoting public and professional awareness of the sentences imposed by the courts is by publishing sentencing statistics in an accessible format. Sentencing commissions and councils in other jurisdictions include this activity as part of their mandate. The Sentencing Advisory Council in New South Wales is a model of good practice in this regard. In the ten years since its creation, this Council has published over 100 sentencing bulletins. These documents provide snapshots of current sentencing practice for a given offence or offence category (e.g., Sentencing Advisory Council, 2013).⁴ They are widely used by the press and advocacy groups and are also cited by sentencers in their decisions.⁵

Research strategies⁶

In addition to an adequate database, research needs to draw upon both qualitative and quantitative approaches to research; no single approach or methodology will be sufficient to provide a comprehensive view of sentencing trends (see Merrall, Dhami and Bird, 2010). We identify a number of key elements and research approaches.

•Court-based statistics: Court records are used to produce an annual release of data, which provides high-level trends regarding key statistics such as the custody rate and the average custodial sentence length. This is the most common method of providing information about sentencing in other jurisdictions. Examples of publications drawing upon court records include Henham (2002); Turner (1992); Flood-Page and Mackie (1998); Bottomley and Pease (1986); Bottoms (1981). Findings from the latest national sentencing statistics are explored in more detail in Chapter 3 of this volume.

•Statistics provided by those who make the sentencing decision: In contrast to court records, data from sentencers can shed light on the factors actually influencing sentencing decisions – not simply those recorded in case files (we return to this point below). The Crown Court Sentencing Survey (described below) currently fulfils this function in England and Wales, although at present there is no comparable survey in the magistrates’ courts.

•Courtroom observational research: This approach to research captures information about the case and the offender that will not appear in official court documents (e.g., Diamond, 1990; Ward, 2013; Jacobson et al., 2015). For example, the demeanour of the defendant or the reaction of the victim delivering an impact statement at sentencing cannot be captured by a record-based approach.

•Experimental simulations: This methodology permits the researcher to experimentally manipulate factors or to randomly assign judges to impose sentence in specific crimes in a way that is not possible using actual cases. It has been used in many other countries to measure disparity in sentencing outcomes. When judges sentence the same case, variation in outcomes can with confidence be attributed to characteristics of the judge rather than the case (e.g., Palys and Divorski, 1986; Corbett, 1987; Hood, 1972; Jacobson and Hough, 2007).⁷

•‘One-off’ studies: This method focuses on issues of specific interest which cannot be captured by other methods, such as research exploring the impact of sentencing on racial and ethnic minorities (e.g., Hood, 1992). This information cannot be derived from statistics collected from sentencers and may be misleading if drawn from court records.

•Interviews, surveys and focus groups with key participants: Sentencers, legal advisors, advocates, solicitors and other court workers can provide important insight into the sentencing process (e.g., Fielding, 2011; Raine and Dunstan, 2009; Hough et al., 2003; Jacobson and Hough, 2010, 2011; Millie, Tombs and Hough, 2007; Gilchrist and Blissett, 2002; Davies, Takala and Tyrer, 2002; Henham, 1990; Diamond, 1990; Fitzmaurice and Pease, 1986).

•Interviews and focus groups with defendants and offenders: This is the most neglected area of sentencing research. Offenders or ex-offenders could shed important light on questions such as whether increasing the magnitude of plea-based sentence reductions would elicit more guilty pleas – a very topical matter at present.⁸ Interviews with ex-offenders would also improve our knowledge of issues such as the effectiveness of different disposals in reducing reoffending or promoting desistance (for examples, see Shute, Hood and Seemungal, 2005; Jacobson et al., 2015).

Since Dhami and Belton (this volume) discuss court records, we explore the other principal source of information: the Crown Court Sentencing Survey (CCSS). This is the most recent addition to the sentencing environment and has great potential to fill some of the analytic gaps.⁹

The Crown Court Sentencing Survey

When the Sentencing Council was created and charged with the duty of monitoring the impact of its own guidelines, it drew upon work conducted by the Sentencing Commission Working Group (2008a), which had proposed a survey of Crown Court centres. The Council set up and currently administers a Crown Court survey. Sentencers are asked to complete a return for each sentenced case; the survey therefore constitutes a census rather than a sample of sentencing decisions in the Crown Court. The CCSS return notes important elements of the offence and requires the sentencer to indicate which factors were taken into account at sentencing. The Sentencing Council then uses the data to develop and revise its guidelines and also to discharge its various statutory duties.

One sentencing expert has noted that the CCSS ‘contains much useful information and is certainly an improvement upon the data which was available in the early days of producing guidelines’ (Wasik, 2012, p. 571). Academic researchers also use the data since its release to the public domain¹⁰ (e.g., Sentencing Council, 2014; Roberts, 2013; Maslen and Roberts, 2013; Pina-Sanchez and Linacre, 2013). However, the full significance of this new database may not immediately be apparent. If sentencing statistics have been compiled for years by the Ministry of Justice, what advantage is there of having a judge complete the form – rather than a court official? The Sentencing Council’s survey offers unique insight into sentencing practices and goes beyond merely documenting the extent to which courts comply with the Council’s guidelines. Information derived from the sentencer permits a much more accurate calibration of the influence of various factors upon sentence outcomes (subject to the limitations on the survey which we discuss later). We offer several illustrations of the contribution that such a database can make to our understanding of sentencing practices.¹¹

(i)

Effect of previous convictions at sentencing

It has been unclear for years how courts take previous convictions into account at sentencing (see Roberts, 2008). The Ministry of Justice statistics – and specific research projects – suggested that courts apply prior convictions in a relatively mechanical way. That is, the sentence simply becomes harsher – as seen in the fact that the custody rate increases in direct proportion to the number of prior convictions recorded against the defendant. Yet recent research reported in a later chapter of this volume demonstrates that ...

Table of contents

• Cover
• Title
• 1  Empirical Sentencing Research: Options and Opportunities
• 2  Using Court Records for Sentencing Research: Pitfalls and Possibilities
• 3  Sentencing Practices and Trends: 19992013
• 4  Exploring Public Knowledge of Sentencing Practices
• 5  Defining and Measuring Consistency in England
• 6  Sentencing Women: An Analysis of Recent Trends
• 7  Women and Sentencing Women: Challenges and Choices
• 8  Sentencing and Dependents: Motherhood as Mitigation
• 9  Paying for the Past: The Role of Previous Convictions at Sentencing in the Crown Court
• 10  Penitence and Persistence: How Should Sentencing Factors Interact?
• 11  Exploring the Impact of Sentencing Factors on Sentencing Domestic Burglary
• 12  More Than One Crime: Sentencing the Multiple Conviction Offender
• 13  Sentencing Murder: Drawing Lessons from Empirical Research
• 14  Sentencing Young Offenders
• Index