Sentencing, Reductions and Murder

Parliament traditionally sets the maximum sentence a crime should attract, although it is for the courts to decide the sentence a defendant will receive. The starting point is that the maximum sentence should be restricted to the worst example of a crime and after a contested trial. A reduction in sentence will then be offered for general mitigating grounds such as a guilty plea or co-operating with the authorities and specific mitigating grounds such as ill-health or having no previous convictions.

The courts have frequently said that sentencing it not a science but an art because no two cases are ever identical.

The courts have, for a very long time, discounted sentences for those who plead guilty. There are two primary reasons behind this and the first is cost. A trial, especially in the Crown Court, is horrendously expensive and thus a discount is given in these circumstances to act as an incentive to plead guilty. The second reason is that it means witnesses do not have to testify in court. Giving witness testimony is at best an inconvenience and at worst can be a harrowing experience. The reduction in sentence therefore acts as an incentive to offenders to plead guilty and save witnesses this trauma. It is often said that this is most important in trials involving violence or sex where the trauma could be worse. If a discount was not awarded in these circumstances then what has a defendant to lose by pleading ‘not guilty’?

It is not just the courts that believe that discounts should be given in these circumstances. Parliament has legislated for this to occur on a number of occasions, the most recent being in Section 152 of the Powers of Criminal Courts (Sentencing) Act 2000 (soon to be replaced by the almost identical Section 144 of the Criminal Justice Act 2003) which makes it mandatory for the courts to take into account whether, and if so at what stage, an offender tendered a guilty plea. The precise discount to be given was never particularly clear but was often said to be around one-third. The controversy that has erupted in the newspapers has arisen, rather ironically, because of an attempt to bring clarity to this area.

Sentencing Guidelines Council.

The courts in England and Wales operate on a hierarchical basis, in that the higher courts all ‘bind’ the lower courts.

Sentencing guidelines had previously been handed down by the Court of Appeal and this had the effect of binding all Crown Courts and Magistrates Courts. Yet the circumstances when the Court of Appeal could lay down guidelines were quite restricted because they had to wait until a case reached the court to allow them, in their judgment, to give guidance.

The Criminal Justice Act 2003 created a Sentencing Guidelines Council, chaired by the Lord Chief Justice, which could publish sentencing guidelines on categories of cases without having to wait for a relevant case to arise.

The Council has produced a consultation paper where they suggest that the discount provided for cases should vary depending on the timing of the case, producing in effect, a sliding scale. The maximum discount of one-third should only be given when the plea was entered at the earliest possible time. The discount should reduce to one-quarter when the plea arises after a trial date has been set, and the discount should only be one-tenth if the plea is entered at the start of the trial. This could, potentially, be a significant change from the usual practices where courts have frequently given either the full, or most of the discount, even when an offender changes his plea at the beginning of the case.

All of this is largely uncontroversial, and indeed welcome, and is in line with the wishes of Parliament.

Murder

The controversy over sentencing has arisen because the proposed guidelines apply to all offences, including murder. The then Home Secretary and the tabloids both objected strongly to this and the language used by both was interesting to say the least. The Lord Chief Justice, Lord Wo