Sentencing and the constitution

CHAPTER 2 Sentencing and the constitution Majorchangesin the sentencingfield in recentyearshave raised several questions ofa constitutional nature. To what extent does sentencing policy belong to the judiciary? Are there any limits beyond which the legislature may not go when legislating on sentencing? Where do new bodies such as the Sentencing Advisory Panel and the Sentencing Guidelines Council fit into the constitutional framework? What are the limits beyond which the executive may not go in determining how a sentence may be carried out? These are all live issues, but firm guidance is not always available. Sometimes the principle of judicial independence has been brought into the debate, often without clarifying matters. These and other matters will be discussed in this chapter, taking account of their implications not only for the higher judiciary but also for the magistracy and for the Judicial Studies Board. 2.1 The separation of powers in sentencing The doctrine of the separation of powers still has some relevance in British con- stitutional theory, but the place of sentencing has never been entirely resolved. In principle, the legislature has control over sentencing powers and policies – subject since the Human Rights Act 1998 to the limitations of the European Convention on Human Rights (the Convention). The judiciary deals with the application of sen- tencing law and principles to individual offenders. And the executive is responsible for carrying out the sentences imposed. But each of these propositions requires further discussion. One clear starting point is that the legislature has superior authority to the courts: if Parliament passes legislation, the courts must apply it. Thus, when Sir Ivor Jennings identified three characteristics of the English courts, the first was ‘their subordination to the legislature’. 1 This is surely correct, and yet it cannot be taken to suggest that the judiciary should not develop policy on matters left aside by legislation. Thus Sir James Fitzjames Stephen went too far when he stated that, if the judiciary were to take upon themselves the task of formulating principles of sentencing, ‘they would be assuming a power which the constitution does not 1Jennings (1959), pp. 241–2. 50 2.1 The separation of powers in sentencing 51 give them’. 2 The statement is only trivially true: it is unhelpful because the British constitution does not explicitly ‘give’ the power to any organ. The starting point is surely the doctrine that the courts are subordinate to the legislature, from which it follows that any policy-making function delegated or simply left to the courts can be taken back by Parliament. Are there, then, any limits to the competence of either the legislature or the courts, bearing in mind that Parliament has superiority when it does decide to legislate? If one looks at the history, then one finds that wide judicial discretion has only been a characteristic feature of English sentencing for the last hundred years or so. In the first half of the nineteenth century, there were two factors that considerably restricted judicial discretion. There were maximum and minimum sentences for many offences, and several statutes provided a multiplicity of different offences with different graded maxima. For much of the nineteenth century, judges were left with less discretion than their twentieth-century counterparts, 3 and anyclaim that a wide sentencing discretion ‘belongs’ to the judiciary is without historical foundation. It gains its plausibility only fromthe legislature’s abandonment of minimum sentences in the twentieth century, and from the trend at one time to replace the plethora of narrowly defined offences, each with its separate maximum sentence, with a small number of ‘broad band’ offences with fairly high statutory maxima. 4 That approach was adopted in the Theft Act 1968 and the Criminal Damage Act 1971, both of which replaced large numbers of separate offences dating from the nineteenth century with afew broadly defined crimes. These statutes broadened the discretion of judges in sentencing, but that approach has now been abandoned, and statutes such as the Sexual Offences Act 2003 return to the former approach of a multiplicity of offences with separate maximum sentences. This is not to suggest, however, that judges in the later nineteenth century were tightly constrained in their sentencing. In fact, there was ample evidence of sen- tencing disparities, as Sir Leon Radzinowicz and Roger Hood have demonstrated. 5 There was concern in the Home Office, and even a proposal in 1889 for a royal com- mission with a view to bringing about uniformity through legislation. Opposing this successfully, the then Lord Chancellor, Lord Halsbury, asserted that sentencing is the province of the judiciary. 6 Afew years later, in 1901, Lord Alverstone CJ and six Queen’s Bench judges drew up a Memorandum of Normal Punishments, which sought to establish standard punishments for normal cases. 7 Thus, while it is often assumed that it was the creation of the Court of Criminal Appeal in 1907 which institutionalized judicial control over practical sentencing standards, the Alverstone Memorandum a few years earlier marked a significant step in this direction – albeit as a response to much public and official agitation in the closing years of 2Stephen (1885). 3 Thomas (1978); and Radzinowicz and Hood (1986), chs. 22, 23. 4Thomas (1974). 5 Radzinowicz and Hood (1986), pp. 741–7. 6Radzinowicz and Hood (1986), p. 754. 7Radzinowicz and Hood (1986), pp. 755–8, and Advisory Council on the Penal System (1978), Appendix E. 52 Sentencing and the constitution the nineteenth century. None the less, the gradual (and recently rapid) accretion of sentencing decisions from the Court of Appeal must surely have strengthened the belief that this is a judicial province and that there was little need for detailed legislative provisions on sentencing. That belief, widely shared in the judiciary, is a belief that judicial discretion supervised by the Court of Appeal is more likely to produce fair sentencing than greater statutory restrictions. It is certainly open to debate. But it is not the same as the principle of judicial independence, nor does it provide a basis for any principle that the legislature may not properly do more than set maximum sentences and introduce new forms of sentence. Thus when there was a fierce debate about the introduction of minimum sentences into English law, prior to the Crime (Sentences) Act 1997, the ‘judicial independence’ argument was abandoned and the policy issues faced squarely. As Lord Bingham put it, There is room for rational argument whether it is desirable to restrict the judges’ sentencing discretion in the way suggested or not. But even this is not a constitutional argument. As Parliament can prescribe a maximum penalty without infringing the constitutional independence of the judges, so it can prescribe a minimum. This is, in the widest sense, a political question – a question of what is beneficial for the polity – not a constitutional question. 8 When there was a constitutionalchallenge to an Australian statute which required acourt to impose a specified penalty on conviction for a particular offence, the High Court of Australia dismissed it in these terms: It is both unusual and in general, in my opinion, undesirable that the court should not have a discretion in the imposition of sentences, for circumstances alter cases and it is a traditional function of a court of justice to endeavour to make the punishment appropriate to the circumstances as well as to the nature of the crime. But whether or not such discretion shall be given to the court in relation to a statutory offence is for the decision of the Parliament. It cannot be denied that there are circumstances which may warrant the imposition on the court of a duty to impose specific punishment. If Parliament chooses to deny the court such a discretion, and to impose such a duty, as Ihavementioned the court must obey the statute in this respect assuming its validity in other respects. It is not, in my opinion, a breach of the Constitution, not to confide any discretion to the court as to the penalty to be imposed. 9 The same argument may be applied to s. 269 of the Criminal Justice Act 2003, in which Parliament curtailed the judges’ discretion to determine the minimum term to be served by a person convicted of murder, imposing a restrictive structure on the judges’ powers. 10 However, it is a different matter if the legislature purports to pass a law that mandates a certain sentence for a particular individual. This question was tested in 8Bingham (1996), p. 25; see also Taylor (1996), p. 8. 9 Palling v. Corfield (1970) 123 CLR 52, per Barwick CJ at p. 65. 10 See below, ch. 4.4.1. 2.1 The separation of powers in sentencing 53 Australia, where the Community Protection Act 1994 of New South Wales autho- rized and required the state’s courts to impose a sentence of six months’ preventive detention on a specific individual for the protection of the community. In Kable 11 the High Court of Australia held the legislation invalid, on the ground that it vio- lated the separation of powers by requiring the courts to act as if at the behest of the executive, and that this would undermine public confidence in the administration of justice. The separation of powers therefore seems to confirm that Parliament has con- siderable authority over sentencing policy, subject to the Human Rights Act and subject to the limitation that the legislature cannot prescribe a sentence for a par- ticular offender. The judiciary retains the power to deal with individual offenders. Sentencing powers can be regulated and restricted by statute, even to the extent of requiring the imposition of mandatory or mandatory minimum sentences, so long as those requirements do not breach the Human Rights Act by violating offenders’ Convention rights. 12 So far as the executive is concerned, it is certainly not accept- able for the Home Secretary to determine how long persons convicted of murder should spend in prison, either as a minimum term or (subsequently) for public protection. Those are sentencing decisions that require, according to Article 6(1) of the Convention, an ‘independent and impartial tribunal’. 13 This leads into a final constitutional point about the judiciary – the true mean- ing of the principle of judicial independence. Although it has often been referred to rather extravagantly in the context of legislative sentencing reforms, the true mean- ing of the principle is that when passing sentence in each case, a judge or magistrate should be in a position to administer the law without fear or favour, affection or ill-will. 14 No pressures upon the court to decide one way or the other should be countenanced. Discretion should not be exercised on personal or political grounds: it should be an exercise of judgment according to legal principle. Appointments to the bench should not be politically motivated. Freedom from bias, from partiality and from undue influence is integral to any definition of the rule of law. This principle is regarded as particularly important in some east European coun- tries where judges in the Soviet era were tightly restricted and as political appointees were expected to follow approved paths. However, it is worth remembering that in this country ‘judicial appointments were influenced by party political considera- tions, as well as merits, until well into the twentieth century’, and that ‘it is to the post-war Lord Chancellorship of Lord Jowitt that we look for the establishment of the modern practice’. 15 In this sphere, as well as in respect of the role of the 11 (1996) 189 CLR 51. The ‘sentence’ was also retrospective in effect. For the context and further discussion, see Fox and Freiberg (1999), pp. 38–40. 12 The Court of Appeal implied a broad exception into the automatic sentence of life imprisonment created by the Crime (Sentences) Act 1997 in its decision in Offen (No. 2) [2001] 2 Cr App R (S) 44. For further discussion of human rights constraints, see ch. 4.6 below. 13 R.v.Home Secretary, ex p. Anderson [2003] 1 AC 837, discussed in ch. 4.4.1 below. 14 For an illuminating history, see Stevens (1993). 15 Munro (1992), p. 4. For a broader international discussion see Shetreet and Deschenes (1985). 54 Sentencing and the constitution legislature, modern notions of judicial independence and the judicial function have a shorter history than many believe. 2.2 The Sentencing Advisory Panel and the Sentencing Guidelines Council The constitutional arrangements for guidance on sentencinghave been altered twice in recent years, first by the appointment of a Sentencing Advisory Panel under ss. 80–81 of the Crime and Disorder Act 1998, and second by the creation of the Sentencing Guidelines Council under ss. 169–170 of the Criminal Justice Act 2003. The work of these two bodies was introduced in part 1.5.2 of Chapter 1, and we now turn to consider their constitutional position. The Panel, chaired by Professor Martin Wasik, was constituted in July 1999 with 11 members, and three further members have been added. Four of the members are sentencers (judges or magistrates), three are academics, four others have recent or current experience of the criminal justice system, and the remaining three are laypeople with no connection with criminal justice. The Panel meets every three to four weeks, usually for one day and occasionally for two days. Its method of working is to formulate a consultation paper, having reviewed the applicable law and statistics and any relevant research, and then to seek responses from its statutory consultees and frommembers of the public. The normal consultation period is three months, after which it considers the responses and any further information before formulating its Advice. The whole process takes several months from start to finish, not least because the Panel will normally be running two, three or more separate subjects at the same time. In its first five years of operation the Panel produced draft guidelines on about a dozen offences, which were submitted as Advice to the Court of Appeal. The Court acted on all but one of these Advices, issuing guidelines in a subsequent decision. The arrangements were reviewed by the Halliday report in 2001, and in Chapter 8 the report argued that steps must be taken towards the formulation of comprehensive sentencing guidelines and that a new machinery should be consid- ered. Halliday set out three alternative approaches, 16 and the government decided in favour of the creation of a council ‘responsible for setting guidelines for the full range of criminal offences’. 17 The Council’s remit (and that of the Panel) also extends to the promulgation of ‘allocation guidelines’, replacing the Mode of Trial Guidelines as a means of dividing the workload in criminal cases between the mag- istrates’ courts and the Crown Court. The Panel (SAP) was to continue in operation, so as to carry out the preliminary work and to conduct its wide consultations, but the Council was to take ultimate responsibility for the form of the guidelines. The government’s purposes in creating the Council also included a desire to make pro- vision for Parliament to have a voice in the creation of guidelines, and to divorce 16 Halliday (2001), paras. 8.11–8.22. 17 Home Office (2002), para. 5.15. 2.2 The Sentencing Advisory Panel and the Guidelines Council 55 the function of creating guidelines from that of deciding individual appeals (and therefore to take the function of creating guidelines away from the Court of Appeal). It was assumed that for this purpose an entirely judicial body was needed, and so SAP (with its diverse membership) would not be appropriate and instead a Council composed entirely of judicial members would be introduced, fully recognizing ‘the importance of an independent judiciary’. 18 Thus the Criminal Justice Bill presented to Parliament in 2002 provided for a council consisting of seven members – the Lord Chief Justice, two Lords Justice of Appeal, a High Court judge, a Circuit judge, aDistrict Judge (Magistrates’ Courts), and a lay magistrate. Then, as the bill was progressing through Parliament, the Court of Appeal received an advice from SAP on the sentencing of domestic burglars. 19 Lord Woolf CJ in the Court of Appeal gave a guideline judgment which accepted most of the Panel’s advice but significantly lowered the starting points for first-time and second-time offenders who committed medium-level burglaries, proposing com- munity sentences for them. 20 Although Lord Woolf took care to explain these changes by reference to various government policy statements, the popular press and subsequently the Home Secretary denounced the judgment as inappropriately lenient. The ensuing furore attracted media attention for some time, and the Home Secretary seems to have decided that an entirely judicial body could not be trusted with this important social function. The government brought forward amendments to the bill which would add five non-judicial members to the Council – persons experienced in, respectively, policing, criminal prosecution, criminal defence, the promotion of the welfare of victims of crime and the administration of sentences. It was believed that the person with experience of the administration of sentences would be a civil servant from the Home Office, and objection was taken to this in the House of Lords. To expand the Council from an entirely judicial body to a body with wider membership was one thing; but to extend its membership so as to include a serving civil servant, a member of the executive who would be bound to put forward departmental views, was quite another thing. The House of Lords Select Committee on the Constitution took advice on the matter and, concluding that such an appointee might not appear independent, expressed its ‘concern at the proposal that a serving civil servant should act as a member of the Sentencing Guidelines Council’. 21 This part of the amendment was therefore dropped,although asenior civil servant (the director of the National Offender Management Service, then Martin Narey) is allowed to attend and speak at Council meetings. 22 The original assumption that the membership of the Council should be entirely judicial presumably either was based on recognition that the creation of sentencing guidelines is a judicial function or was a political gambit to ensure that the judiciary remained supportive of the new arrangements. The former reasoning cannot be 18 Home Office (2002), para. 5.15. 19 Sentencing Advisory Panel, Advice to the Court of Appeal – 8: Domestic Burglary (2002). 20 McInerney and Keating [2003] 2 Cr App R (S) 240; see further Davies and Tyrer (2003). 21 House of Lords (2003), para 6. 22 CJA 2003, s. 167(9). 56 Sentencing and the constitution sustained now, since we have a Council with a diverse membership (albeit with a judicial majority). So two reasons for creating the Council remain – the need to divorce the creation of guidelines from the function of determining appeals, and the importance of providing an opportunity for parliamentary input into the process of creating guidelines. However, neither reason tells in favour of creating an additional body, when SAP already existed. SAP does not have a judicial majority, although it does have four sentencers and, if chaired by the Lord Chief Justice or another senior judge, its membership would surely not be inappropriate for such a body. More- over, it has three lay members; and there is no reason why it should not have been required to consult Parliament in the same way that the Council is now obliged to do. Since, however, Parliament has decided to create a new, additional body rather than to alter the membership of SAP so as to fit it for the role of promulgating guidelines, it is certainly beneficial that the Council should have a mixed member- ship. It has been argued in previous editions of this work 23 that it is desirable to have a body with diverse experience in broad matters of penal policy, not merely because many judges have a tendency to support existing arrangements rather than to favour change, 24 but also because other perspectives have a legitimate place in the deliberations. Three further matters call for comment from a constitutional point of view. The first concerns the propriety of the legislature delegating the function of creating and promulgating sentencing guidelines to a new, and not entirely judicial, body. This question was tested before the Supreme Court of the United States in a constitu- tional challenge to the US federal sentencing guidelines, which were formulated by the US Sentencing Commission pursuant to the Sentencing Reform Act of 1984. In denying the constitutional challenge by a majority of eight to one, the Supreme Court in Mistretta v. United States (1989) 25 maintained that, although at one time ‘Congress delegated almost unfettered discretion to the sentencing judge to deter- mine what the sentence should be within the customarily wide range’, it remains the position that ‘the scope of judicial discretion with respect to a sentence is subject to congressional control’. There was therefore nothing unconstitutional in a legis- lature taking back the wide discretion it had left to the courts and then delegating it, within statutorily defined limits, to an independent Sentencing Commission. This reasoning surely applies equally to the British constitution, in support of the guideline-creating power conferred on the Council. More recently, the Supreme Court’s decision in Blakely v. Washington (2004) 26 has raised questions about the constitutionality of US guideline systems. The precise point of the case was that it was a denial of the appellant’s constitutional right to trial by jury if his sentence was subjected to an enhancement, above the normal sentence range indicated by the guidelines, as a result of a decision by a judge and not a jury. However, the 23 See the final chapter of the first (1992) and second (1995) editions, containing proposals that may have had some influence on policy-making on this subject. 24 This is the principal counter-argument of Tonry (2004), ch. 5. 25 (1989) 109 S. Ct 647. 26 (2004) 124 S. Ct. 2531. 2.2 The Sentencing Advisory Panel and the Guidelines Council 57 implication may be that every guideline system that provides for courts to move above the guideline range of sentences must also provide for such aggravating fac- tors to be determined by a jury. Critics therefore argue that the decision spells the death of guideline systems, because legislatures will not want an enormous increase in jury trials and are therefore likely to abandon guidelines in favour of a return to wide judicial discretion in sentencing matters. If the jury gives its verdict on guilt and the judge has a wide discretion, there will be no unconstitutionality. However, if a sentencing guideline indicates a narrow ‘normal range’ of sentences (say, 49–53 months, as in Blakely) and the judge, after hearing evidence, decides to go higher than that range (adding three years for ‘deliberate cruelty’), then the offender has been deprived of the right to jury trial on a crucial issue. It is not yet clear to what extent the existing guideline systems will be able to withstand the effects of Blakely. Asecond constitutional issue concerns the alleged ‘democratic deficit’ in the pre-2003 arrangements for creating guidelines, and the insistence on giving Parlia- ment and the Home Secretary a role in ‘considering and scrutinizing’ draft guide- lines. 27 As argued in part 1 above, there is no reason of constitutional principle why Parliament should not pass detailed legislation on sentencing matters, and from the same standpoint there is no strong constitutional argument against the involve- ment of parliamentarians in proposing amendments to guidelines. At a political level, however, there is obviously a danger that politicians will be looking to either vote-winning or progress within the party rather than trying to take a considered and rounded view of the subject. It remains to be seen whether these new powers are used sensibly or for party political reasons. For the present, some comfort can be taken from the checks and balances in the 2003 Act: the Council is obliged to consult the Home Secretary and the House of Commons Home Affairs Committee, but it is not obliged to accept their comments and it has the final decision on the form of the guidelines it issues. This leads to the third matter. The Council issues ‘definitive guidelines’, but what kind of law are these? They are not primary legislation, delegated legislation, or part of the judgment of a court. They have authority by virtue of the duty of sentencers to have regard to definitive guidelines (s. 172), but it is not clear in what other way their statutory authority is manifest. It is unlikely that an action for judicial review of a court that refused to follow a definitive guideline would be entertained: no doubt the applicant would be directed to use the normal channels of appeal against sentence. So, just as judicial sentencing guidelines seemed to acquire binding force even though in substance they were obiter dicta in relation to the case in which they were set out, it also appears that definitive guidelines will acquire their authority partly through the legislative origin of the power to create them, and partly through enforcement by the Court of Appeal. 27 Home Office (2002), para 5.17. The proposal built on the examination of the issues and options in ch. 8 of Halliday (2001). 58 Sentencing and the constitution 2.3 The judiciary, the executive and sentencing policy The discussion thus far has mainly concerned the constitutional authority of Parlia- ment and the courts in sentencing matters, as well as taking account of the position of SAP and the Council. Where does the executive fit into this? It has long been accepted that there is a royal prerogative power to commute sentences, the preroga- tive of mercy, which has come to be exercised by the Home Secretary (a member of the executive). At some times past it has been employed vigorously, as by Churchill during his short period as Home Secretary in 1910–11: so alarmed was he by dis- parities and by several instances of extraordinarily severe sentences that he used the prerogative to order the immediate release of several prisoners. 28 The exercise of the prerogative has come under scrutiny at various times when the abolition of capital punishment has been debated, 29 but in recent times it has been used mainly in compassionate cases and other instances not related to sentencing policy. 30 Until recently the Home Secretary had a prominent role in determining how long prisoners sentenced to life imprisonment should spend in custody. However, as noted above, 31 recent judicial decisions have confirmed that it is inconsistent with the Convention for decisions on the length of imprisonment to be taken by amember of the executive rather than by an ‘independent and impartial tribunal’. Similarly, life prisoners should be able to have access to a court in order to determine the need for their continued detention (Art. 5(4) of the Convention), and it has been held that a ‘court’ for these purposes may be the Parole Board sitting with a judge as chair. 32 Those authorities set the boundaries of executive power over individual sen- tences, but the rules and conventions are rather more fluid when it comes to exec- utive attempts to influence the judiciary and judicial attempts to influence the executive. One firm principle must be that the courts are not obliged to defer to the executive. The House of Commons Expenditure Committee stated the position (albeit in rather dramatic fashion) in 1978: The starting point of our discussion must be recognition of the constitutional position of the judiciary as independent of the executive arm of Government and the legislature. This means that it would not be appropriate for the Home Office to tell the judges what to do, even if the result of judicial activity were to threaten the breakdown of the prison system, which is very nearly what has happened. 33 One step down from ‘telling the courts what to do’ is trying to persuade the courts to follow a certain course. One example of this was the Home Office’s action in sending a copy of the interim report of the Advisory Council on the Penal System, 28 Radzinowicz and Hood (1986), pp. 770–5. 29 Radzinowicz and Hood (1986), pp. 676–81. 30 Smith (1983). 31 See n. 13 above and accompanying text. 32 The two principal Strasbourg decisions on this point are Thynne, Wilson and Gunnell v. U.K. (1989) 13 EHRR 666 (discretionary life imprisonment) and Stafford v. U.K. (2002) 35 EHRR 1121 (life imprisonment for murder). 33 House of Commons Expenditure Committee (1978), para. 37; cf. Woolf (1991), para. 10.154. 2.3 The judiciary, the executive and sentencing policy 59 The Length of Prison Sentences,toeveryjudgeand every bench of magistrates in 1977.This report offered evidence that longer sentences had no greater crime- preventive effect than shorter ones, and ended by ‘inviting’ the courts to ‘make their contribution towards’ solving the problem of prison overcrowding (i.e. by passing fewer and shorter prison sentences). 34 This is moderate, exhortatory language; but one could see that frequent missives of this kind from the executive to the judiciary might be thought to overstep the mark, not least because there is another, judge-led body (the Judicial Studies Board) that has the task of keeping judges informed. Oneunusual sourceofadvice to the judiciary inrecentyearswas ajoint announce- ment by the Home Secretary and the Lord Chancellor in 2002. 35 The contents of the statement were unremarkable, in the sense that they broadly endorsed the policies being pursued by the Court of Appeal. Thus the statement affirmed the impor- tance of ‘protecting the public from violent, sexual and other serious offenders’, welcomed Lord Woolf CJ’s stance on ‘violent robbery’, but advocated a greater use of community sentences for ‘lesser offences’ in order to reduce reoffending. How- ever, a question arises about the authority of these two government ministers to issue a statement of this kind on sentencing policy. The Home Secretary is clearly a member of the executive. The Lord Chancellor’s traditional role has involved mem- bership of all three branches of government – the executive, the judiciary and the legislature. However, Lord Chancellors have typically played no part in sentencing policy, except perhaps when delivering speeches in their role as presidents of the Magistrates’ Association. It is doubtful whether this joint announcement had any authoritative standing, and there is no evidence that it actually exerted any influence on magistrates or judges (independently of Court of Appeal guidance). Whatever happens to the office of Lord Chancellor under the projectedconstitutional reforms, it is unlikely that this source of advice on sentencing policy will be adopted again, and it remains unclear why it was used in the first place. The involvement of government ministers is also relevant when we turn to con- sider influence in the other direction, from the judiciary to the executive. Although there is no direct consultative mechanism, it has surely been a frequent feature of initiatives in recent years that the executive has consulted the senior judiciary about policy proposals (e.g. on the introduction of the Sentencing Guidelines Council). It seems probable that the consultations have involved the Lord Chancellor and the Attorney General rather than the Home Secretary, but little is known about this. So far as history is concerned, two examples of judicial influence over policy come to mind. In 1981 the Home Office’s proposals for the reform of the parole system were opposed by a small group of senior judges who met and then communicated their misgivings to the government, which subsequently dropped the proposals. 36 And the proposal in a 1986 White Paper 37 that the Judicial Studies Board should be 34 Advisory Council on the Penal System (1977), para. 12. 35 Lord Chancellor’s Department, press notice 194/02. 36 Revealed by Lawton LJ in a letter to The Times,27Nov. 1981. 37 Home Office (1986), noted at [1986] Crim LR 281–4. [...]... types of case they try and they sentence, and the Sentencing Guidelines Council will need to replace the current guidance on Mode of Trial with new ‘allocation guidelines’ The Council is also required to issue sentencing guidance for all courts, and it is assumed that the next set of Magistrates’ Courts Sentencing Guidelines will be the product of SAP and the Council For the present, however, there are... Supreme Court, the link with the House of Lords will be cut and the entitlement of senior judges to sit there will cease Democratic theory would certainly find no place for what happened during the closing days of the 1992–7 government, when both the government and the Labour opposition supported the provisions in the Crime (Sentences) Bill providing for the automatic life sentence and two mandatory minimum... Probably the greatest constitutional limitation on sentencing stems from the Human Rights Act and the Convention rights: they are discussed in Chapter 4.6 below, but we have noted already that the Home Secretary’s powers over life sentence prisoners have been removed on grounds of incompatibility with the Convention Major changes such as the creation of the Sentencing Advisory Panel and the Sentencing. .. consideration of whether the case should be committed to the Crown Court.52 As stated above, the Sentencing Guidelines Council will take over the guidelines in the coming years Whether it decides to continue with them in a form similar to the present guidelines, 50 The Association also commissioned research on its effect: Hood (1972), and the discussion in Ashworth (2003b) 51 For discussion of the controversy... 66 Sentencing and the constitution sentencing becomes ever more complex, the task of training magistrates become more demanding The provisions of the Criminal Justice Act 2003 require an immense training programme, and the staged introduction of the Act’s sentencing provisions has as many disadvantages as advantages 2.6 Conclusions As sentencing becomes more of a political issue, its constitutional... half a dozen new recruits and a judge tutor, working through practical exercises There are a few lectures on aspects of law, procedure and sentencing, and on equal treatment, and the culmination of the week’s course is a mock trial in which different roles are assigned and the course director (a judge) presides and offers comments and guidance For experienced judges there is the four-day residential... has led to the creation of some sentencing guidelines with direct relevance to magistrates’ courts (e.g those on handling stolen 45 [1970] 2 QB 711 2.5 The position of the magistracy goods and on offensive weapons), and the Sentencing Guidelines Council is now mandated to work towards comprehensive sentencing guidelines applicable to both levels of court There have long been criticisms of the composition... court to the Crown Court The case is reheard there, and the Crown Court may impose any sentence which the magistrates could have imposed, even if the new sentence is more severe than the one actually imposed by the magistrates The latter provision tends to operate as a disincentive, and appeals against magistrates’ sentences are therefore fairly rare However, it may be unwise to look to appeals to the Crown... devoted to a common theme agreed between the JSB Criminal Committee and the presiding judges This means that the total training programme is considerable, and the relentless flow of new statutory provisions in recent years makes that essential Pulling against that, however, is the pressure of business in the Crown Court and the consequent difficulty of securing the release of judges from their duties in... guidelines, which were reshaped and revised in 1992, 1993, 1997 and 2000 However, from the outset there was a major difficulty with the guidelines: they had absolutely no legal authority, being the product of a voluntary association, and justices’ clerks knew perfectly well that they were under no obligation to follow them Nonetheless, the Association performed an important function, in the absence of adequate . on the examination of the issues and options in ch. 8 of Halliday (2001). 58 Sentencing and the constitution 2.3 The judiciary, the executive and sentencing. 52 Sentencing and the constitution the nineteenth century. None the less, the gradual (and recently rapid) accretion of sentencing decisions from the