The sentencing guideline system in England and Wales
| Jurisdiction | South Africa |
| Citation | (2006) 19 SACJ 1 |
| Published date | 16 August 2019 |
| Author | Andrew Ashworth |
| Date | 16 August 2019 |
| Pages | 1-22 |
ARTICLES
The sentencing guideline system in
England and Wales
ANDREW ASHWORTH*
Sentencing guideline systems are often associated with the United States,
where there has been a range of developments since the 1970s at both
state and federal levels. Some are framed in legislation and others formulated
by sentencing commissions, some are mandatory in effect and others are
voluntary, some relate only to custodial sentences and others cover all forms
of sentence, some are tight and detailed in their prescriptions whereas
others specify only broad ranges.1 The aim of this article is to examine a
more recent and rather different approach to sentencing guidelines, one
that builds (unlike the American systems) on a history of appellate review
of sentences. In its Report on a New Sentencing Framework the South
African Law Commission showed considerable interest in the (then) English
approach and recommended the creation of a Sentencing Council as part of
a new framework.2 Although the Commission’s recommendations have not
yet been taken forward, it is hoped that evidence of the English experience
will have a particular relevance to future developments in South Africa.
The English sentencing system has long had the capacity to provide
guidance for judges and magistrates through the system of appeals created
by the Criminal Appeal Act 1907. In the fi rst 50 years of its existence, the
Court of Criminal Appeal would occasionally make a general statement of
principle or policy when delivering its judgment on an individual appeal.
However, these statements were relatively infrequent and it was not until
the 1960s that the system began to develop. Commentaries on appellate
decisions began to appear regularly in the Criminal Law Review and in
∗ LLB (LSE) BCL (Oxon) PhD (Manchester) DCL (Oxon) QC, FBA, Vinerian Professor of
English Law, University of Oxford and Fellow, All Souls College, Oxford.
1 The literature is immense, but convenient surveys may be found in M Tonry Sentencing
Matters (1996) and in M Tonry ed Penal Reform in Overcrowded Times (2001).
2 South African Law Commission Report (project 82) Sentencing (A New Sentencing
Framework) (2000).
1
(2006) 19 SACJ 1
© Juta and Company (Pty) Ltd
2 SACJ • (2006) 1
1970 the fi rst full-length treatise on English sentencing, written by Dr
David Thomas, was published.3
The next signifi cant development was entirely judge-made – the creation
of the ‘guideline judgment.’ This was a judgment on an individual appeal
that was expanded to deal with sentencing for several variations of the
particular offence. Thus the fi rst major guideline judgment was that in
Aramah (1982).4 The actual appeal was against a sentence of six years
imprisonment for the importation of 59 kilograms of cannabis, but the
judgment of Lord Lane went much wider and indicated sentence ranges
for the importation, supply or possession of drugs in class A (particularly
heroin) and in class B (particularly cannabis), identifying different ranges
according to the weight of the drugs and the role of the offender. This
guidance was subsequently used when the Court of Appeal dealt with
appeals against sentence in drugs cases, and judges were expected to
follow it. It became a model for other guideline judgments and a number
of them were handed down by the Court of Appeal in the 1980s and 1990s,
many of them being still in force. However, it was relatively rare for Lord
Chief Justices to deliver guideline judgments and by the late 1990s they
covered only a small proportion of offences.
1. The Sentencing Advisory Panel and the 1998 Act
Sections 80-81 of the Crime and Disorder Act 1998 introduced two
major innovations: fi rst, a Sentencing Advisory Panel5 was created to draft
guidelines, consult widely on them, and then advise the Court of Appeal
about the form that they should take; and secondly, the power of the Court
of Appeal to give guideline judgments was restricted to offences on which
it had received advice from the Panel. In other words, the Court of Appeal
lost its power to create guidelines on its own and always had to await
advice from the Panel, although it was not bound to accept the Panel’s
advice.
The Sentencing Advisory Panel, chaired by Professor Martin Wasik,
was constituted in July 1999 with 11 members (three further members
have since 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 previous connection with the criminal justice system.
The Panel meets every three or four weeks, usually for one day and
occasionally for two days. There are three different ways in which the
3 DA Thomas Principles of Sentencing (1970). The book was published in a second
edition in 1979 but has not been up-dated since then. For fuller discussion of these early
developments see A Ashworth Sentencing and Criminal Justice 4ed (2005) ch 1.5.
4 R v Aramah [1982] 4 Cr App R (S) 407.
5 Hereinafter referred to as ‘the Panel’.
© Juta and Company (Pty) Ltd
To continue reading
Request your trial