Sentencing and the constitution

CHAPTER 2
Sentencing and the constitution
Majorchangesin the sentencingfield in recentyearshave raised several questions ofa
constitutional nature. To what extent does sentencing policy belong to the judiciary?
Are there any limits beyond which the legislature may not go when legislating on
sentencing? Where do new bodies such as the Sentencing Advisory Panel and the
Sentencing Guidelines Council fit into the constitutional framework? What are the
limits beyond which the executive may not go in determining how a sentence may
be carried out? These are all live issues, but firm guidance is not always available.
Sometimes the principle of judicial independence has been brought into the debate,
often without clarifying matters. These and other matters will be discussed in this
chapter, taking account of their implications not only for the higher judiciary but
also for the magistracy and for the Judicial Studies Board.
2.1 The separation of powers in sentencing
The doctrine of the separation of powers still has some relevance in British con-
stitutional theory, but the place of sentencing has never been entirely resolved. In
principle, the legislature has control over sentencing powers and policies – subject
since the Human Rights Act 1998 to the limitations of the European Convention on
Human Rights (the Convention). The judiciary deals with the application of sen-
tencing law and principles to individual offenders. And the executive is responsible
for carrying out the sentences imposed. But each of these propositions requires
further discussion.
One clear starting point is that the legislature has superior authority to the
courts: if Parliament passes legislation, the courts must apply it. Thus, when Sir
Ivor Jennings identified three characteristics of the English courts, the first was
‘their subordination to the legislature’.
1
This is surely correct, and yet it cannot be
taken to suggest that the judiciary should not develop policy on matters left aside
by legislation. Thus Sir James Fitzjames Stephen went too far when he stated that,
if the judiciary were to take upon themselves the task of formulating principles

of sentencing, ‘they would be assuming a power which the constitution does not
1Jennings (1959), pp. 241–2.
50
2.1 The separation of powers in sentencing 51
give them’.
2
The statement is only trivially true: it is unhelpful because the British
constitution does not explicitly ‘give’ the power to any organ. The starting point is
surely the doctrine that the courts are subordinate to the legislature, from which it
follows that any policy-making function delegated or simply left to the courts can
be taken back by Parliament. Are there, then, any limits to the competence of either
the legislature or the courts, bearing in mind that Parliament has superiority when
it does decide to legislate?
If one looks at the history, then one finds that wide judicial discretion has only
been a characteristic feature of English sentencing for the last hundred years or so.
In the first half of the nineteenth century, there were two factors that considerably
restricted judicial discretion. There were maximum and minimum sentences for
many offences, and several statutes provided a multiplicity of different offences with
different graded maxima. For much of the nineteenth century, judges were left with
less discretion than their twentieth-century counterparts,
3
and anyclaim that a wide
sentencing discretion ‘belongs’ to the judiciary is without historical foundation. It
gains its plausibility only fromthe legislature’s abandonment of minimum sentences
in the twentieth century, and from the trend at one time to replace the plethora of
narrowly defined offences, each with its separate maximum sentence, with a small
number of ‘broad band’ offences with fairly high statutory maxima.
4
That approach
was adopted in the Theft Act 1968 and the Criminal Damage Act 1971, both of which

replaced large numbers of separate offences dating from the nineteenth century with
afew broadly defined crimes. These statutes broadened the discretion of judges in
sentencing, but that approach has now been abandoned, and statutes such as the
Sexual Offences Act 2003 return to the former approach of a multiplicity of offences
with separate maximum sentences.
This is not to suggest, however, that judges in the later nineteenth century were
tightly constrained in their sentencing. In fact, there was ample evidence of sen-
tencing disparities, as Sir Leon Radzinowicz and Roger Hood have demonstrated.
5
There was concern in the Home Office, and even a proposal in 1889 for a royal com-
mission with a view to bringing about uniformity through legislation. Opposing
this successfully, the then Lord Chancellor, Lord Halsbury, asserted that sentencing
is the province of the judiciary.
6
Afew years later, in 1901, Lord Alverstone CJ and
six Queen’s Bench judges drew up a Memorandum of Normal Punishments, which
sought to establish standard punishments for normal cases.
7
Thus, while it is often
assumed that it was the creation of the Court of Criminal Appeal in 1907 which
institutionalized judicial control over practical sentencing standards, the Alverstone
Memorandum a few years earlier marked a significant step in this direction –
albeit as a response to much public and official agitation in the closing years of
2Stephen (1885). 3 Thomas (1978); and Radzinowicz and Hood (1986), chs. 22, 23.
4Thomas (1974). 5 Radzinowicz and Hood (1986), pp. 741–7.
6Radzinowicz and Hood (1986), p. 754.
7Radzinowicz and Hood (1986), pp. 755–8, and Advisory Council on the Penal System (1978),
Appendix E.
52 Sentencing and the constitution
the nineteenth century. None the less, the gradual (and recently rapid) accretion

of sentencing decisions from the Court of Appeal must surely have strengthened
the belief that this is a judicial province and that there was little need for detailed
legislative provisions on sentencing.
That belief, widely shared in the judiciary, is a belief that judicial discretion
supervised by the Court of Appeal is more likely to produce fair sentencing than
greater statutory restrictions. It is certainly open to debate. But it is not the same as
the principle of judicial independence, nor does it provide a basis for any principle
that the legislature may not properly do more than set maximum sentences and
introduce new forms of sentence. Thus when there was a fierce debate about the
introduction of minimum sentences into English law, prior to the Crime (Sentences)
Act 1997, the ‘judicial independence’ argument was abandoned and the policy issues
faced squarely. As Lord Bingham put it,
There is room for rational argument whether it is desirable to restrict the judges’
sentencing discretion in the way suggested or not. But even this is not a constitutional
argument. As Parliament can prescribe a maximum penalty without infringing the
constitutional independence of the judges, so it can prescribe a minimum. This is, in
the widest sense, a political question – a question of what is beneficial for the polity –
not a constitutional question.
8
When there was a constitutionalchallenge to an Australian statute which required
acourt to impose a specified penalty on conviction for a particular offence, the High
Court of Australia dismissed it in these terms:
It is both unusual and in general, in my opinion, undesirable that the court should
not have a discretion in the imposition of sentences, for circumstances alter cases and
it is a traditional function of a court of justice to endeavour to make the punishment
appropriate to the circumstances as well as to the nature of the crime. But whether or
not such discretion shall be given to the court in relation to a statutory offence is for
the decision of the Parliament. It cannot be denied that there are circumstances which
may warrant the imposition on the court of a duty to impose specific punishment. If
Parliament chooses to deny the court such a discretion, and to impose such a duty, as

Ihavementioned the court must obey the statute in this respect assuming its validity
in other respects. It is not, in my opinion, a breach of the Constitution, not to confide
any discretion to the court as to the penalty to be imposed.
9
The same argument may be applied to s. 269 of the Criminal Justice Act 2003, in
which Parliament curtailed the judges’ discretion to determine the minimum term
to be served by a person convicted of murder, imposing a restrictive structure on
the judges’ powers.
10
However, it is a different matter if the legislature purports to pass a law that
mandates a certain sentence for a particular individual. This question was tested in
8Bingham (1996), p. 25; see also Taylor (1996), p. 8.
9 Palling v. Corfield (1970) 123 CLR 52, per Barwick CJ at p. 65. 10 See below, ch. 4.4.1.
2.1 The separation of powers in sentencing 53
Australia, where the Community Protection Act 1994 of New South Wales autho-
rized and required the state’s courts to impose a sentence of six months’ preventive
detention on a specific individual for the protection of the community. In Kable
11
the High Court of Australia held the legislation invalid, on the ground that it vio-
lated the separation of powers by requiring the courts to act as if at the behest of the
executive, and that this would undermine public confidence in the administration
of justice.
The separation of powers therefore seems to confirm that Parliament has con-
siderable authority over sentencing policy, subject to the Human Rights Act and
subject to the limitation that the legislature cannot prescribe a sentence for a par-
ticular offender. The judiciary retains the power to deal with individual offenders.
Sentencing powers can be regulated and restricted by statute, even to the extent of
requiring the imposition of mandatory or mandatory minimum sentences, so long
as those requirements do not breach the Human Rights Act by violating offenders’
Convention rights.

12
So far as the executive is concerned, it is certainly not accept-
able for the Home Secretary to determine how long persons convicted of murder
should spend in prison, either as a minimum term or (subsequently) for public
protection. Those are sentencing decisions that require, according to Article 6(1)
of the Convention, an ‘independent and impartial tribunal’.
13
This leads into a final constitutional point about the judiciary – the true mean-
ing of the principle of judicial independence. Although it has often been referred to
rather extravagantly in the context of legislative sentencing reforms, the true mean-
ing of the principle is that when passing sentence in each case, a judge or magistrate
should be in a position to administer the law without fear or favour, affection or
ill-will.
14
No pressures upon the court to decide one way or the other should be
countenanced. Discretion should not be exercised on personal or political grounds:
it should be an exercise of judgment according to legal principle. Appointments to
the bench should not be politically motivated. Freedom from bias, from partiality
and from undue influence is integral to any definition of the rule of law.
This principle is regarded as particularly important in some east European coun-
tries where judges in the Soviet era were tightly restricted and as political appointees
were expected to follow approved paths. However, it is worth remembering that in
this country ‘judicial appointments were influenced by party political considera-
tions, as well as merits, until well into the twentieth century’, and that ‘it is to the
post-war Lord Chancellorship of Lord Jowitt that we look for the establishment
of the modern practice’.
15
In this sphere, as well as in respect of the role of the
11 (1996) 189 CLR 51. The ‘sentence’ was also retrospective in effect. For the context and further
discussion, see Fox and Freiberg (1999), pp. 38–40.

12 The Court of Appeal implied a broad exception into the automatic sentence of life imprisonment
created by the Crime (Sentences) Act 1997 in its decision in Offen (No. 2) [2001] 2 Cr App R (S)
44. For further discussion of human rights constraints, see ch. 4.6 below.
13 R.v.Home Secretary, ex p. Anderson [2003] 1 AC 837, discussed in ch. 4.4.1 below.
14 For an illuminating history, see Stevens (1993).
15 Munro (1992), p. 4. For a broader international discussion see Shetreet and Deschenes (1985).
54 Sentencing and the constitution
legislature, modern notions of judicial independence and the judicial function have
a shorter history than many believe.
2.2 The Sentencing Advisory Panel and the Sentencing Guidelines
Council
The constitutional arrangements for guidance on sentencinghave been altered twice
in recent years, first by the appointment of a Sentencing Advisory Panel under
ss. 80–81 of the Crime and Disorder Act 1998, and second by the creation of the
Sentencing Guidelines Council under ss. 169–170 of the Criminal Justice Act 2003.
The work of these two bodies was introduced in part 1.5.2 of Chapter 1, and we
now turn to consider their constitutional position.
The Panel, chaired by Professor Martin Wasik, was constituted in July 1999 with
11 members, and three further members have 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 connection with criminal justice. The Panel meets every three
to four weeks, usually for one day and occasionally for two days. Its method of
working is to formulate a consultation paper, having reviewed the applicable law
and statistics and any relevant research, and then to seek responses from its statutory
consultees and frommembers of the public. The normal consultation period is three
months, after which it considers the responses and any further information before
formulating its Advice. The whole process takes several months from start to finish,
not least because the Panel will normally be running two, three or more separate
subjects at the same time. In its first five years of operation the Panel produced draft

guidelines on about a dozen offences, which were submitted as Advice to the Court
of Appeal. The Court acted on all but one of these Advices, issuing guidelines in a
subsequent decision.
The arrangements were reviewed by the Halliday report in 2001, and in
Chapter 8 the report argued that steps must be taken towards the formulation of
comprehensive sentencing guidelines and that a new machinery should be consid-
ered. Halliday set out three alternative approaches,
16
and the government decided
in favour of the creation of a council ‘responsible for setting guidelines for the
full range of criminal offences’.
17
The Council’s remit (and that of the Panel) also
extends to the promulgation of ‘allocation guidelines’, replacing the Mode of Trial
Guidelines as a means of dividing the workload in criminal cases between the mag-
istrates’ courts and the Crown Court. The Panel (SAP) was to continue in operation,
so as to carry out the preliminary work and to conduct its wide consultations, but
the Council was to take ultimate responsibility for the form of the guidelines. The
government’s purposes in creating the Council also included a desire to make pro-
vision for Parliament to have a voice in the creation of guidelines, and to divorce
16 Halliday (2001), paras. 8.11–8.22. 17 Home Office (2002), para. 5.15.
2.2 The Sentencing Advisory Panel and the Guidelines Council 55
the function of creating guidelines from that of deciding individual appeals (and
therefore to take the function of creating guidelines away from the Court of Appeal).
It was assumed that for this purpose an entirely judicial body was needed, and so
SAP (with its diverse membership) would not be appropriate and instead a Council
composed entirely of judicial members would be introduced, fully recognizing ‘the
importance of an independent judiciary’.
18
Thus the Criminal Justice Bill presented

to Parliament in 2002 provided for a council consisting of seven members – the
Lord Chief Justice, two Lords Justice of Appeal, a High Court judge, a Circuit judge,
aDistrict Judge (Magistrates’ Courts), and a lay magistrate.
Then, as the bill was progressing through Parliament, the Court of Appeal
received an advice from SAP on the sentencing of domestic burglars.
19
Lord Woolf
CJ in the Court of Appeal gave a guideline judgment which accepted most of
the Panel’s advice but significantly lowered the starting points for first-time and
second-time offenders who committed medium-level burglaries, proposing com-
munity sentences for them.
20
Although Lord Woolf took care to explain these
changes by reference to various government policy statements, the popular press
and subsequently the Home Secretary denounced the judgment as inappropriately
lenient. The ensuing furore attracted media attention for some time, and the Home
Secretary seems to have decided that an entirely judicial body could not be trusted
with this important social function. The government brought forward amendments
to the bill which would add five non-judicial members to the Council – persons
experienced in, respectively, policing, criminal prosecution, criminal defence, the
promotion of the welfare of victims of crime and the administration of sentences.
It was believed that the person with experience of the administration of sentences
would be a civil servant from the Home Office, and objection was taken to this
in the House of Lords. To expand the Council from an entirely judicial body to a
body with wider membership was one thing; but to extend its membership so as
to include a serving civil servant, a member of the executive who would be bound
to put forward departmental views, was quite another thing. The House of Lords
Select Committee on the Constitution took advice on the matter and, concluding
that such an appointee might not appear independent, expressed its ‘concern at
the proposal that a serving civil servant should act as a member of the Sentencing

Guidelines Council’.
21
This part of the amendment was therefore dropped,although
asenior civil servant (the director of the National Offender Management Service,
then Martin Narey) is allowed to attend and speak at Council meetings.
22
The original assumption that the membership of the Council should be entirely
judicial presumably either was based on recognition that the creation of sentencing
guidelines is a judicial function or was a political gambit to ensure that the judiciary
remained supportive of the new arrangements. The former reasoning cannot be
18 Home Office (2002), para. 5.15.
19 Sentencing Advisory Panel, Advice to the Court of Appeal – 8: Domestic Burglary (2002).
20 McInerney and Keating [2003] 2 Cr App R (S) 240; see further Davies and Tyrer (2003).
21 House of Lords (2003), para 6. 22 CJA 2003, s. 167(9).