Who decides what a typical sentence should be, if not the judge?

AnalysisTwo people who did the same thing in the same circumstances should not receive very different sentences because they appeared before different judges. That is a consistency problem, and it is real: sentencing involves so many variables that unstructured discretion produces variation nobody intended and nobody can defend.

England and Wales created a standing body for the task. Section 118(1) of the Coroners and Justice Act 2009 provides, in a single sentence, that there is to be a Sentencing Council for England and Wales, with Schedule 15 making provision about it. The subsection came into force on 6 April 2010.

The duty on courts is now in the sentencing code. Section 59(1) of the Sentencing Act 2020 provides that every court must, in sentencing an offender, follow any sentencing guidelines relevant to the offender’s case, and must follow relevant guidelines in exercising any other function relating to sentencing — unless the court is satisfied that it would be contrary to the interests of justice to do so.

The duty is also expressly subordinate. Section 59(2) makes it subject to an enumerated list of provisions including the rule that a fine must reflect seriousness, the restriction on community orders, the threshold for a discretionary custodial sentence, the requirement that a custodial sentence be the shortest term commensurate with seriousness, and the mandatory-minimum provisions.

Not every system has such a body, and the absence is not an oversight. German sentencing rests on the code rather than on published guidance: section 46(1) of the Criminal Code makes the offender’s guilt the basis for determining the sentence, and section 46(2) enumerates the circumstances the court weighs — motives and aims, the attitude expressed by the act, the degree of breach of duty, the manner of execution, prior life, personal and economic circumstances, and conduct after the act.

AnalysisThose are two answers to the consistency problem, not one answer and a gap. A statutory list of factors constrains reasoning without prescribing outcomes; a guideline constrains outcomes and leaves the reasoning to the court. Which produces more consistency is an empirical question neither statute answers and this page does not either.

• Common belief: Sentencing guidelines are advisory.

  In practice: Section 59(1) says a court must follow relevant guidelines unless satisfied that doing so would be contrary to the interests of justice. The default is compliance and departure requires a stated conclusion.

• Common belief: Sentencing guidelines are binding, so judges have no discretion.

  In practice: The same provision supplies the exit, and the duty is expressly subject to statutory provisions including the custody threshold and the shortest-term rule. Guidelines structure a discretion they do not remove.

• Common belief: A guideline can override the statutory sentencing rules.

  In practice: Section 59(2) lists the provisions the guidelines duty is subject to, including the fine rule, the community-order restriction, the custody threshold and the mandatory minimums.

• Common belief: Every system has a sentencing council.

  In practice: Germany has no equivalent body. Its Criminal Code names culpability as the basis of measurement and enumerates the factors a court weighs, leaving the outcome to the court.

• Common belief: A system without guidelines has unstructured sentencing.

  In practice: Section 46 of the German Criminal Code constrains the reasoning rather than the result, listing what the court must weigh. Structure can be applied to the process instead of to the outcome.

Two ways to constrain a sentencing decision.

• A statutory Council producing guidelines, with courts required to follow relevant ones unless satisfied it would be contrary to the interests of justice — England and Wales, CJA 2009 s. 118 and Sentencing Act 2020 s. 59(1).
• That duty expressly subordinate to the statutory thresholds and mandatory minimums — Sentencing Act 2020 s. 59(2).
• No guidelines body: culpability as the basis of measurement, with the weighing factors enumerated in the code — Germany, StGB § 46.

AnalysisA duty that can be departed from only on a stated basis produces reasons, and reasons are what an appeal works on. A sentence outside the guideline range is not thereby wrong, but the court has had to say why — which is more than an unstructured discretion would leave behind.

AnalysisPublished guidelines also do something for the public that the code alone cannot. They make the ordinary approach to a category of case knowable in advance by someone who is not a lawyer, which is the legal-certainty argument for having them at all.

• One guidelines system is described from primary text, together with a system that has no equivalent body. The composition of the Council, the content of any guideline, and their effect on sentencing outcomes were not researched.
• Nothing here indicates what any guideline says or what any case would attract.

Related: when a court may imprison, legal certainty, and why judicial independence matters.