I am pleased to introduce the Sentencing Council’s annual report for 2022/23. It is the Council’s 13th report and my first as Chairman.
I took up the post of Chairman of the Council in August 2022 as successor to Lord Justice Tim Holroyde. Tim has played a significant role in the life of the Sentencing Council. He served as a judicial member from April 2015. In August 2018 he was appointed as Chairman of the Council. He stepped down from that position in June 2022 when he was appointed as Vice President of the Court of Appeal Criminal Division last year. In that capacity he is continuing his membership of the Council. I am delighted that the Council has retained his unrivalled expertise in sentencing. I would like to thank Tim for his period of office between 2018 and 2022 during which time the Council went from strength to strength. That was due in no small measure to his skilled and inspirational leadership.
Developing and revising guidelines
Since the Council’s inception in 2010, we have developed guidelines covering virtually all major offences seen regularly by the courts. With our revised motoring offence guidelines coming into effect in July 2023 and a consultation planned on aggravated vehicle taking guidelines in the coming year, we are on the verge of having replaced all guidelines produced by our predecessor body, the Sentencing Guidelines Council.
During 2022/23 the Council published new and revised offence specific definitive guidelines covering six types of offences.
First, we revised and brought up to date existing guidelines for arranging or facilitating the commission of a child sex offence and causing or inciting a child to engage in sexual activity. The revisions followed what was said by the Court of Appeal in two cases: Privett and Others [2020] EWCA Crim 557; Reed and Others [2021] EWCA Crim 572. These decisions gave guidance on how to approach the assessment of harm in cases where the child was a fiction or the offender was thwarted in his intention for some reason. The revised guidelines, which came into effect on 31 May 2022, advise judges and magistrates to identify the category of harm on the basis of the sexual activity the offender intended even in cases where no child exists or no sexual activity takes place. At the same time, we made a series of minor amendments to provide clarity on aspects of other existing sexual offences guidelines.
Second, we published a new guideline for the offence of sexual communication with a child, which came into effect on 1 July 2022.
Third, we published revised guidelines for sentencing domestic, non-domestic and aggravated burglary offences. They came into effect on 1 July 2022. The original guidelines (in force from 16 January 2022) contained only two levels of harm and culpability respectively. The revised guidelines provided three levels of harm and culpability. The harm and culpability factors in the revised guideline allow sentencers fully to reflect the distress suffered by victims of burglary.
Fourth, we published guidelines revising the terrorism guidelines introduced in 2018. The revisions reflected the increases in maximum sentences and other changes introduced by the Counter-Terrorism and Border Security Act 2019 and the Counter-Terrorism and Sentencing Act 2021. These revised guidelines, which came into effect on 1 October 2022, also provided guidance for judges sentencing offenders who meet the criteria for the new serious terrorism sentence.
Fifth, we published two new guidelines for sentencing retailers, one for large organisations and the other for individual shop owners, who fail to ensure that adequate safeguards are in place to prevent the sale of knives to under 18s either in-store or online. This is a summary offence. Under these guidelines large organisations whose culpability was high could face a fine of up to £1 million. The Council believes that the penalties under the new guidelines are substantial enough to bring home to both management and shareholders the need to operate within the law. The guidelines came into force on 1 April 2023.
Sixth, we published revisions to the guidelines for sentencing offenders convicted of child cruelty offences. The guidelines were updated to reflect changes in legislation. They created a new very high culpability level to reflect new maximum sentences for causing or allowing a child to die or suffer serious physical harm and for cruelty to a child introduced by the Police, Crime, Sentencing and Courts (PCSC) Act 2022. These revised guidelines also came into force on 1 April 2023.
We also made changes to various guidelines following our second annual consultation on miscellaneous amendments. Every year, the Council consults on changes to guidelines that we consider to be significant enough to warrant consultation but not so significant that a new guideline is required. Proposed changes are drawn from case law, commentary on sentencing and feedback from guideline users, as well as from work we have done on other guidelines. These miscellaneous amendments were in force from 1 April 2023.
The Council launched six consultations during the reporting year, including for the child cruelty and sale of knives guidelines that came into effect in April and the second tranche of miscellaneous amendments.
On 7 July 2022 we opened a consultation on proposals for 12 new and revised guidelines for motoring offences. Our proposals reflected the increase in maximum penalties for causing death by dangerous driving and causing death by careless driving while under the influence of drink or drugs introduced by the PCSC Act 2022. They also reflected new offences created since the Sentencing Guidelines Council guidelines were published in 2008, including causing serious injury by careless driving.
Between 10 May and 1 August 2022 we consulted on proposals to reflect increases in maximum sentences introduced by the Animal Welfare (Sentencing) Act 2021. We sought views on two draft guidelines: the first covered the most serious offences, including causing unnecessary suffering, tail docking and animal fighting; the second covered neglect and ill treatment of animals.
Our other consultation looked at the overarching guideline on totality, which sets out the approach for sentencing an offender for more than one offence or where the offender is already serving a sentence. The consultation sought views on a series of changes we are proposing in response to research carried out with sentencers in 2021. Both this and the animal cruelty guidelines were published in May 2023 to come into effect on 1 July 2023, along with the motoring offences guidelines.
Any guideline prepared by the Council must be published as a draft guideline in respect of which the Council is obliged to consult widely. The results of any consultation are vital to the Council’s work, and we consider those results with great care. We are always grateful to the people and organisations who give their valuable expertise and time to contribute to our consultations, and who help us to make improvements before publishing definitive guidelines.
Understanding the Council’s impact
In addition to publishing guidelines, the Council is required to monitor and evaluate their operation and effect.
Once guidelines have been implemented, we assess the impact they may have had on sentencing and whether they have been implemented as the Council intended.
Where possible, we collect data both before and after a new guideline has come into effect. Analysis of data from these collections helps us explore what might be influencing outcomes and to understand how the guideline has been implemented in practice. In January 2023 we launched a data collection exercise in all magistrates’ courts and all locations of the Crown Court. This six-month study covered a number of offences and asked sentencers to identify the culpability and harm factors they took into account and which aggravating and mitigating factors they considered relevant, to explain the sentence imposed by reference to the starting point and note any reduction for a plea of guilty.
Any data collection exercise of this kind is an imposition on magistrates and judges. It became apparent as the exercise progressed that it was placing too great a burden on sentencers. Consequently we reduced the number of offences to which the data collection applied. We remain grateful to all those magistrates and judges who provide data in relation to their sentences. It is of critical importance to all aspects of the Council’s work.
Each of the definitive guidelines we published and offence specific guideline consultations we launched during the reporting year was accompanied by a resource assessment. In these assessments we estimate the effects of the guidelines on the resource requirements of the prison, probation and youth justice services. They allow us and our stakeholders to understand better the consequences of our proposed or definitive guidelines.
There is more information on the Council’s analysis and research work in chapter 2 and elsewhere throughout this report.
Setting our direction
Enhancing and strengthening the data and evidence that underpin our work, and making sure that all our work is evidence based, were among the objectives we set ourselves when we launched the Council’s five-year strategy in November 2021. The strategy identified five priorities that would shape our work between 2021 and 2026. The chapters of this report set out our progress against each of these priorities. Producing and revising guidelines remains the Council’s core focus, and chapter 1 details the guideline development work we have completed throughout the year. The progress we have made in enhancing and strengthening the evidence base of our guidelines is detailed in chapter 2. Allied to this work is the efforts we have made to reinforce our connections and exchange knowledge with academics who share an interest in our work. In January 2023, with The City Law School and the Sentencing Academy, we hosted the second of what we hope will become a regular series of academic seminars designed to identify potential areas for research and strengthen relationships. There is a report of the seminar on pages 31-2.
Chapter 3 looks at the work we have done this year to meet our objective to explore issues of equality and diversity relevant to our work. Our action plan for meeting this objective extends the work we have already been doing around equality and diversity. This year we published research examining the language, concepts and factors of guidelines for any potential impact that could unintentionally lead to disparities in sentencing. We published the findings and recommendations of this research on 10 January 2023. There is more on this project on pages 39-42.
Our fourth strategic objective outlines the Council’s commitment to considering and collating evidence on effectiveness of sentencing in preventing reoffending. Effectiveness is a complex concept. Our founding legislation provides that, in developing guidelines, the Council must have regard to the cost of different sentences and their relative effectiveness in preventing re-offending. It does not specify how we should have regard to this factor. In September 2022 we published an externally commissioned review of current literature on effectiveness of sentencing, the findings of which will allow the Council to consider the most up-to-date evidence when we develop and revise sentencing guidelines. See pages 46-7 for more.
In our fifth strategic objective, the Council made a commitment to improve confidence in sentencing among the public, including victims, witnesses and defendants. Our challenge here is not just to help people understand more about sentencing but to counter the steady stream of misunderstandings and common myths about sentencing that are repeated in the media.
Chapter 5 sets out the work we have done throughout the year in this regard. This work has included publishing the findings of research we commissioned to explore what drives the public’s attitudes to and understanding of the criminal justice system and to suggest how the Council might reinforce and improve public confidence. The findings and recommendations stemming from this research are on pages 52-3.
The people behind the guidelines
I served previously as a judicial member of the Council between April 2012 and April 2015. Though the faces are different, the depth of expertise and experience around the table is still as great as it was then when Sir Brian Leveson was the Chairman. I would like to thank all members for their warm welcome and for the good grace and good humour with which they have approached our work this year. It is only in the last few months that we have begun to emerge from the problems created by the pandemic.
We have seen a number of changes in personnel throughout 2022/23. I extend my gratitude and that of my Council colleagues to those members who have left the Council, and wish them well for the future. Mrs Justice Maura McGowan and Her Honour Judge Rebecca Crane left the Council in early 2023, both having served two terms. Rosina Cottage left in summer 2022, also having served two terms as defence representative, and Dr Alpa Parmar, who served as an academic member, left us early in the year.
We have also welcomed four new members to the Council. In July 2022 Dr Elaine Freer succeeded Dr Parmar as the academic representative; in May 2022, Stephen Leake joined us as the district judge representative; in August 2022 Richard Wright KC was appointed to provide the defence community’s perspective and, most recently, in January 2023, Mr Justice Wall joined the Council as a judicial member.
Finally, I would like to pay tribute to the staff of the Office of the Sentencing Council. They are the Council’s most valuable resource, and I have been greatly impressed by their expertise, professionalism and dedication.
Lord Justice William Davis Chairman
July 2023