Legislation – Coroners and Justice Act 2009

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Part 4Sentencing

Chapter 1Sentencing Council for England and Wales

Guidelines

120Sentencing guidelines

(1)

In this Chapter “sentencing guidelines” means guidelines relating to the sentencing of offenders.

(2)

A sentencing guideline may be general in nature or limited to a particular offence, particular category of offence or particular category of offender.

(3)

The Council must prepare—

(a)

sentencing guidelines about the discharge of a court’s duty under F1section 73 of the Sentencing Code (reduction in sentences for guilty pleas), and

(b)

sentencing guidelines about the application of any rule of law as to the totality of sentences.

(4)

The Council may prepare sentencing guidelines about any other matter.

F2(4A)

But sentencing guidelines about pre-sentence reports may not include provision framed by reference to different personal characteristics of an offender.

(5)

Where the Council has prepared guidelines under subsection (3) or (4), it must publish them as draft guidelines.

(6)

The Council must consult the following persons about the draft guidelines—

(a)

the Lord Chancellor;

(b)

such persons as the Lord Chancellor may direct;

(c)

the Justice Select Committee of the House of Commons (or, if there ceases to be a committee of that name, such committee of the House of Commons as the Lord Chancellor directs);

(d)

such other persons as the Council considers appropriate.

(7)

In the case of guidelines within subsection (3), the Council must, after making any amendments of the guidelines which it considers appropriate F3—

(a)

seek the consent of the Lord Chief Justice and the Lord Chancellor to issue them as definitive guidelines, and

(b)

if such consent is given, issue them as definitive guidelines.

(8)

In any other case, the Council may, after making F4any amendments of the draft guidelines which it considers appropriate—

(a)

seek the consent of the Lord Chief Justice and the Lord Chancellor to issue them as definitive guidelines, and

(b)

if such consent is given , issue them as definitive guidelines.

F5(8A)

The Lord Chief Justice and the Lord Chancellor must consider any request for consent under subsection (7) or (8) as soon as practicable after receiving the request.

(8B)

The Lord Chief Justice or the Lord Chancellor may withhold consent under subsection (7) or (8) only if the Lord Chief Justice or (as the case may be) the Lord Chancellor considers that it is necessary to do so in order to maintain public confidence in the criminal justice system.

(8C)

If the Lord Chief Justice or the Lord Chancellor decides to withhold consent under subsection (7) or (8), the Lord Chief Justice or (as the case may be) the Lord Chancellor must, as soon as practicable after making the decision, lay before Parliament a document stating the reason for the decision.

(9)

The Council may, from time to time, review the sentencing guidelines issued under this section, and may revise them.

(10)

Subsections (5), (6) and (8) F6to (8C) apply to a revision of the guidelines as they apply to their preparation (and subsection (8) applies even if the guidelines being revised are within subsection (3)).

(11)

When exercising functions under this section, the Council must have regard to the following matters—

(a)

the sentences imposed by courts in England and Wales for offences;

(b)

the need to promote consistency in sentencing;

(c)

the impact of sentencing decisions on victims of offences;

(d)

the need to promote public confidence in the criminal justice system;

(e)

the cost of different sentences and their relative effectiveness in preventing re-offending;

(f)

the results of the monitoring carried out under section 128.

F7(12)

For the purposes of this section—

“personal characteristics” include, in particular—

(a)

race;

(b)

religion or belief;

(c)

cultural background;

“pre-sentence report” has the same meaning as in the Sentencing Code (see section 31 of the Code).

121Sentencing ranges

(1)

When exercising functions under section 120, the Council is to have regard to the desirability of sentencing guidelines which relate to a particular offence being structured in the way described in subsections (2) to (9).

(2)

The guidelines should, if reasonably practicable given the nature of the offence, describe, by reference to one or more of the factors mentioned in subsection (3), different categories of case involving the commission of the offence which illustrate in general terms the varying degrees of seriousness with which the offence may be committed.

(3)

Those factors are—

(a)

the offender’s culpability in committing the offence;

(b)

the harm caused, or intended to be caused or which might foreseeably have been caused, by the offence;

(c)

such other factors as the Council considers to be particularly relevant to the seriousness of the offence in question.

(4)

The guidelines should—

(a)

specify the range of sentences (“the offence range”) which, in the opinion of the Council, it may be appropriate for a court to impose on an offender convicted of that offence, and

(b)

if the guidelines describe different categories of case in accordance with subsection (2), specify for each category the range of sentences (“the category range”) within the offence range which, in the opinion of the Council, it may be appropriate for a court to impose on an offender in a case which falls within the category.

(5)

The guidelines should also—

(a)

specify the sentencing starting point in the offence range, or

(b)

if the guidelines describe different categories of case in accordance with subsection (2), specify the sentencing starting point in the offence range for each of those categories.

(6)

The guidelines should—

(a)

(to the extent not already taken into account by categories of case described in accordance with subsection (2)) list any aggravating or mitigating factors which, by virtue of any enactment or other rule of law, the court is required to take into account when considering the seriousness of the offence and any other aggravating or mitigating factors which the Council considers are relevant to such a consideration,

(b)

list any other mitigating factors which the Council considers are relevant in mitigation of sentence for the offence, and

(c)

include criteria, and provide guidance, for determining the weight to be given to previous convictions of the offender and such of the other factors within paragraph (a) or (b) as the Council considers to be of particular significance in relation to the offence or the offender.

(7)

For the purposes of subsection (6)(b) the following are to be disregarded—

(a)

the requirements of F8section 73 of the Sentencing Code (reduction in sentences for guilty pleas);

(b)

F9sections 74, 387 and 388 of the Sentencing Code (assistance by defendants: reduction or review of sentence) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered to be given) by the offender to the prosecutor or investigator of an offence;

(c)

any rule of law as to the totality of sentences.

(8)

The provision made in accordance with subsection (6)(c) should be framed in such manner as the Council considers most appropriate for the purpose of assisting the court, when sentencing an offender for the offence, to determine the appropriate sentence within the offence range.

(9)

The provision made in accordance with subsections (2) to (8) may be different for different circumstances or cases involving the offence.

(10)

The sentencing starting point in the offence range—

(a)

for a category of case described in the guidelines in accordance with subsection (2), is the sentence within that range which the Council considers to be the appropriate starting point for cases within that category—

(i)

before taking account of the factors mentioned in subsection (6), and

(ii)

assuming the offender has pleaded not guilty, and

(b)

where the guidelines do not describe categories of case in accordance with subsection (2), is the sentence within that range which the Council considers to be the appropriate starting point for the offence—

(i)

before taking account of the factors mentioned in subsection (6), and

(ii)

assuming the offender has pleaded not guilty.

122Allocation guidelines

(1)

In this Chapter “allocation guidelines” means guidelines relating to

F10(a)

decisions by a magistrates’ court under section 19 of the Magistrates’ Courts Act 1980 (c. 43) F11… as to whether an offence is more suitable for summary trial or trial on indictment

F12(b)

decisions by the Crown Court as to whether to exercise the power in section 46ZA(1) of the Senior Courts Act 1981 or section 25A(2) of the Sentencing Code.

(2)

The Council may prepare allocation guidelines.

(3)

Where the Council has prepared guidelines under subsection (2), it must publish them as draft guidelines.

(4)

The Council must consult the following persons about the draft guidelines—

(a)

the Lord Chancellor;

(b)

such persons as the Lord Chancellor may direct;

(c)

the Justice Select Committee of the House of Commons (or, if there ceases to be a committee of that name, such committee of the House of Commons as the Lord Chancellor directs);

(d)

such other persons as the Council considers appropriate.

(5)

The Council may, after making any amendment of the draft guidelines which it considers appropriate F13—

(a)

seek the consent of the Lord Chief Justice and the Lord Chancellor to issue them as definitive guidelines, and

(b)

if such consent is given, issue the guidelines as definitive guidelines.

F14(5A)

The Lord Chief Justice and the Lord Chancellor must consider any request for consent under subsection (5) as soon as practicable after receiving the request.

(5B)

The Lord Chief Justice or the Lord Chancellor may withhold consent under subsection (5) only if the Lord Chief Justice or (as the case may be) the Lord Chancellor considers that it is necessary to do so in order to maintain public confidence in the criminal justice system.

(5C)

If the Lord Chief Justice or the Lord Chancellor decides to withhold consent under subsection (5), the Lord Chief Justice or (as the case may be) the Lord Chancellor must, as soon as practicable after making the decision, lay before Parliament a document stating the reason for the decision.

(6)

The Council may, from time to time, review the allocation guidelines issued under this section, and may revise them.

(7)

Subsections (3) to F15(5C) apply to a revision of the guidelines as they apply to their preparation.

(8)

When exercising functions under this section, the Council must have regard to—

(a)

the need to promote consistency in decisions of the kind mentioned in subsection (1), and

(b)

the results of the monitoring carried out under section 128.

123Preparation or revision of guidelines in urgent cases

(1)

This section applies where the Council—

(a)

decides to prepare or revise sentencing guidelines or allocation guidelines, and

(b)

is of the opinion that the urgency of the case makes it impractical to comply with the procedural requirements of section 120 or (as the case may be) section 122.

(2)

The Council may prepare or revise the guidelines without complying with—

(a)

in the case of sentencing guidelines, section 120(5), and

(b)

in the case of allocation guidelines, section 122(3).

(3)

The Council may—

(a)

in the case of sentencing guidelines, amend and issue the guidelines under section 120(7) or (8) without having complied with the requirements of section 120(6)(b) to (d), and

(b)

in the case of allocation guidelines, amend and issue the guidelines under section 122(5) without having complied with the requirements of section 122(4)(b) to (d).

(4)

The guidelines or revised guidelines must—

(a)

state that the Council was of the opinion mentioned in subsection (1)(b), and

(b)

give the Council’s reasons for that opinion.

124Proposals by Lord Chancellor or Court of Appeal

(1)

The Lord Chancellor may propose to the Council—

(a)

that sentencing guidelines be prepared or revised by the Council under section 120—

(i)

in relation to a particular offence, particular category of offence or particular category of offenders, or

(ii)

in relation to a particular matter affecting sentencing;

(b)

that allocation guidelines be prepared or revised by the Council under section 122.

(2)

Subsection (3) applies where the criminal division of the Court of Appeal (“the appeal court”) is seised of an appeal against, or a reference under section 36 of the Criminal Justice Act 1988 (c. 33) (reviews of sentencing) with respect to, the sentence passed for an offence (“the relevant offence”).

(3)

The appeal court may propose to the Council that sentencing guidelines be prepared or revised by the Council under section 120—

(a)

in relation to the relevant offence, or

(b)

in relation to a category of offences within which the relevant offence falls.

(4)

A proposal under subsection (3) may be included in the appeal court’s judgment in the appeal.

(5)

If the Council receives a proposal under subsection (1) or (3) to prepare or revise any guidelines, it must consider whether to do so.

(6)

For the purposes of this section, the appeal court is seised of an appeal against a sentence if—

(a)

the court or a single judge has granted leave to appeal against the sentence under section 9 or 10 of the Criminal Appeal Act 1968 (c. 19) (appeals against sentence), or

(b)

in a case where the judge who passed the sentence granted a certificate of fitness for appeal under section 9 or 10 of that Act, notice of appeal has been given,

and the appeal has not been abandoned or disposed of.

(7)

For the purposes of this section, the appeal court is seised of a reference under section 36 of the Criminal Justice Act 1988 (reviews of sentencing) if it has given leave under subsection (1) of that section and the reference has not been disposed of.

(8)

This section is without prejudice to any power of the appeal court to provide guidance relating to the sentencing of offenders in a judgment of the court.