Parliament obviously think so. Much of the Court of Appeal think so (or so their judgments often suggest). Many practitioners do not.
The Council’s aim is to promote consistency in sentencing. Unfortunately, there are some quarters of the legal profession who think that the current system does exactly the reverse.
The ‘middle ground’
After the 2011 riots, Lord Justice Leveson, the Council’s Chair, defended the sentences handed out to the rioters. In doing so, he explained the work of the Council. He acknowledged that many of the sentences were more severe than those recommended in the guideline: “What we are trying to do is capture the middle ground, and I think most people would probably say that the sort of riots that we saw in August don’t fall within the middle ground at all.”
Arguably it is the ‘middle-of-the-road’ cases, e.g. the typical dwelling burglary, or your standard Saturday night pub fight, are the sorts of cases which the courts need little if any guidance; courts see those sorts of cases all the time and many merely pay lip service to the guidelines.
The tick-box system
A criticism of the current approach is that it is mechanistic and unhelpful. The reason for this is that the task of identifying the presence of factors requiring an upward or downward adjustment fails to appreciate the necessary second step in a sentencing exercise – how much weight do you attribute to each factor?
Consider a domestic burglary which attracts a starting point of 12 months. Identify the aggravating factors as a) vulnerable victim, b) sentimental goods taken, c) house ransacked, and the mitigating features a) good character, b) no damage caused on entry.
Is each of those worth a 6 month increase/decrease? Of course not. It is necessary to assess the impact of each and attribute the appropriate weight to determine the correct sentence in each case.
Looking back at the riots, the red tape prevented the Sentencing Council from producing guidance on the sentencing of offenders involved in the disturbances. The way in which the Court of Appeal dealt with the rioters in R v Blackshaw and Others, the first of the riot appeals to be heard, was by reference to past case law and sentencing principles.
The advantages of using comparable cases is that, when used wisely, they can be far more instructive as to how much weight each factor is to be given. Unfortunately, until the senior judiciary call for a chance, we appear to be stuck with the categories and ranges approach.