Sentencing Councils and Victims
| Date | 01 May 2012 |
| DOI | http://doi.org/10.1111/j.1468-2230.2012.00903.x |
| Author | Ian Edwards |
| Published date | 01 May 2012 |
Sentencing Councils andVictims
Ian Edwards*
This article explores the place victims have,and should have, in bodies that formulate sentencing
guidelines, with particular reference to sentencing guidelines in England and Wales and the
Sentencing Council’s obligation under the Coroners and Justice Act 2009 to have regard to ‘the
impact of sentencing decisions on victims of offences’ when devising guidelines. The issues
are situated in political and penological contexts; the place of victims in sentencing commissions
or advisory bodies in the USA, England and Australia is analysed and the meaning and significance
of the Sentencing Council’s obligation towards victims is considered, relating the specific obli-
gation to broader issues concerning the place of victims within bodies that formulate sentencing
guidelines.While incor porating victims within sentencing commissions might undermine com-
missions’ aims, it can play an important role in helping to boost public confidence in criminal
justice, a touchstone for all western governments’ criminal justice policies.
INTRODUCTION
Many jurisdictions now have an agency,often called a sentencing commission or
council, that has as one of its aims the production of binding or voluntary
sentencing guidelines.There is a range of types of commission with a variety of
approaches to composition, aims, functions, criteria, procedures and constitution-
ality of guidelines production.1These mechanisms supplement or replace the role
of the jurisdictions’ appellate courts in providing sentencing guidelines.They aim
to promote consistency and transparency, many have a duty to monitor sentenc-
ing practice and some have to ensure some sort of correspondence between
sentencing guidelines and available penal resources. In the USA,there is a Federal
Sentencing Guidelines Commission and twenty-two states in the USA have
a sentencing commission of some type.2New Zealand has legislated for a
Sentencing Council, although the Sentencing CouncilAct 2007 is not in force.3
Similarly, in Scotland Part One of the Criminal Justice and Licensing (Scotland)
*Senior Lecturer in Law, UEA Law School, University of East Anglia. Many thanks to Rosemary
Pattenden, Julian Roberts and the MLR’s two anonymous reviewers for helpful comments on earlier
drafts. I take full responsibility for the content, opinions and errors in the article.
1 R. Frase, ‘Sentencing Guidelines:Diversity, Consensus and Unresolved Policy Issues’ (2005) 105
Colum L Rev 1190, 1191.
2 The following states have such a body,which is called a Sentencing Commission unless otherwise
indicated: Alabama,Arkansas, Connecticut, Delaware, District of Columbia, Illinois (Sentencing
Policy Advisory Council),Kansas, Louisiana, Maryland (State Commission on Criminal Sentenc-
ing Policy), Massachusetts, Minnesota, Missouri (SentencingAdvisory Commission),New Mexico,
North Carolina, Ohio (State Criminal Sentencing Commission),Oregon (Criminal Justice Com-
mission), Pennsylvania (Commission on Sentencing), South Carolina (Sentencing Guidelines
Commission), Utah,Vermont,Virginia (Criminal Sentencing Commission),Washington (Sentenc-
ing Guidelines Commission).
3 W.Young and C. Browning,‘New Zealand’s Sentencing Council’(2008) Crim LR 294; ‘National
to scrap sentencing council’ New Zealand Herald 2 August 2008, at http://www.nzherald.co.nz/
nz/news/article.cfm?c_id=1&objectid=10524915 (last visited 1 January 2012).
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© 2012The Author.The Modern Law Review © 2012 The Modern Law ReviewLimited. (2012) 75(3) MLR 324–346
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
Act 2010 provides for the establishment of a Scottish Sentencing Council,
although the relevant provisions are not yet in force. In South Africa and
Northern Ireland there have been recommendations for some form of guide-
lines body.4Four Australian states (New South Wales, Victoria, Tasmania and
Queensland) have advisory councils on sentencing providing advice to the
state’s Court of Criminal Appeal or Justice Minister about the need for, and
content of, guidelines that should be issued.In England and Wales,the Sentencing
Council was established by the Coroners and Justice Act 2009 (CJA 2009) and
replaces the Sentencing Guidelines Council (SGC) and Sentencing Advisory
Panel (SAP).5The Council must prepare sentencing guidelines about reduc-
tions in sentence for guilty pleas and about the totality of sentences.6It can
prepare guidelines about any other matter and revise issued guidelines.7The
Council must publish a resource assessment of the likely effect of the guidelines
on the resources required for the provision of prison places, probation and youth
justice services.8It must monitor the operation and effect of its sentencing
guidelines and consider what conclusions can be drawn from that monitoring.9
Sentencers must follow the guidelines unless it is contrary to the interests of
justice to do so.10
Much has been written about mechanisms for structur ing sentencing guide-
lines.11 Almost nothing has been said, however,about the place of victims within
them.12 Given the practical significance of the Sentencing Council’s work for all
criminal courts, there has been surprisingly little analysis of its remit or work to
4 Sentencing Commission for Scotland, The Scope to Improve Consistency of Sentencing (Glasgow:
Sentencing Commission for Scotland, 2006); S. Terblanche, ‘Sentencing Guidelines for South
Africa: Lessons from Elsewhere’(2003) 120 South African Law Journal 858–882; Northern Ireland
Assembly Research and Information Service, ComparativeResearch into Sentencing Guidelines Mec ha-
nisms (2011: Research Paper 66/11) at http://www.niassembly.gov.uk/Documents/RaISe/
Publications/Justice/6611.pdf (last visited 1 January 2012).South Korea has introduced guidelines
modelled on England. There are similar proposals in Israel: J. Roberts, ‘Structured Sentencing:
Lessons from England and Wales for Common Law Jurisdictions’ (2012) Punishment & Society
(forthcoming).
5 A. Ashworth,‘Coroners and Justice Act 2009:Sentencing Guidelines and the Sentencing Council’
(2010) Crim LR 389; Roberts ibid.
6 CJA 2009, s 120(3)(a) and s 120(3)(b).
7 s 120(4) and s 120(9); s 122(6).
8 s 127(1)–(3).
9 s 128(1)–(2).
10 s 125.
11 M. Tonry, Sentencing Matters (Oxford: OUP,1996); A. Freiberg and K. Gelb (eds),Penal Populism,
Sentencing Councils and Sentencing Policy (Cullompton:Willan, 2008).There are hundreds of articles;
among the most important are R. Frase,‘Sentencing Guidelines: Diversity, Consensus and Unre-
solved Policy Issues’ (2005) 105 Colum L Rev 1190 and R. A. Duff, ‘Theories and Policies
Underlying Guidelines Systems’ (2005) 105 Colum L Rev 1162.
12 Debate in each jur isdiction has focused on the place of victims in individual sentencing decisions,
on which there is a burgeoning literature: for an overview of the issues see, I. Edwards,‘Victim
Participation in Sentencing:The Problems of Incoherence’ (2001) 40 Howard Journal of Criminal
Justice 39 and I. Edwards,‘The evidential quality of victim personal statements and family impact
statements’ (2009) 13 International Journal of Evidence and Proof 293; R. Butler,‘What Practitioners
and Judges Need to Know Regarding CrimeVictims’ Participatory Rights in Federal Sentencing
Proceedings’ (2006) 19 Federal Sentencing Reporter 21–29;limited discussion of victims does appear
in Freiberg and Gelb ibid.
Ian Edwards
© 2012 TheAuthor.The Moder n Law Review© 2012 The Modern Law Review Limited. 325
(2012) 75(3) MLR 324–346
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