Sentence appeals in England: promoting consistent sentencing through robust appellate review.

• Author: Rosenbaum, Briana Lynn
• Position: III. Sentence Appeals in England B. The Role of the Appellate Court in England 2. Guidelines and Excessive-Sentence Review through V. Conclusion, with footnotes, p. 118-157

2. Guidelines and Excessive-Sentence Review

   With regard to the guidelines, the Court of Appeal exercises its lawmaking role when it issues guidelines or makes changes to existing guidelines, while its enforcement role involves both procedural review--to ensure that the guidelines are properly applied and proper procedures followed--and substantive excessive-sentence review. Although these functions have separate purposes, they are often linked because the Court often uses its excessive-sentence review to enforce both its own guidelines and the Definitive Guidelines of the Council.

   Since 2003, the primary institution responsible for developing and issuing guidelines has been either the Sentencing Council or its precursor, the SGC. However, sentencing guidelines have existed in England since the 1970s, when the Court of Appeal began to issue guidelines, in the form of "guideline judgments." (191) It did so "as a means of providing assistance to Crown Court sentencers in the disposal of particular types of offence, mainly the most serious forms of crime which attract long prison sentences." (192) Most guidelines judgments issued by the Court of Appeal are "based on the existing practice of the Court of Appeal and are intended to provide a convenient restatement of ... practice." (193) These judgments often summarize past precedent to provide more accessible and "general guidance on how a particular type of crime should be dealt with." (194) Some guidelines judgments go further, though, and are "intended to signal a change of the practice of the Court of Appeal," often "in light of changes in the law or public attitudes." (195)

   English scholars appear to accept that, "in strict terms," the Court of Appeal's guideline judgments are "massive obiter dicta, since much of what is said is not essential to the decision in the particular case." (196) But it is also quite clear that this does not lessen their binding nature. English observers agree that the mere fact that these judgments are issued by the Lord Chief Justice provides them with an air of authority. (197) Furthermore, "[t]hese judgments ... were intended to bind lower courts, and were treated as doing so." (198)

   Regardless of the institution generating them--the Court of Appeal or the Sentencing Council--guidelines in England take a similar tariff-type format. (199) They usually identify degrees of harm and/or culpability for specific crimes, correlate these with sentencing ranges and starting points, and provide examples of mitigating and aggravating factors that suggest when a sentencing court should impose a sentence either below or above the starting point. (200) As an example, a person convicted of aggravated burglary in England is subject to a maximum sentence of life in prison. (201) The Definitive Guideline indicates an "offence range" for aggravated burglary of from one to thirteen years. (202) This means that it will usually be appropriate to sentence an offender convicted of aggravated burglary to a term of between one and thirteen years. (203)

   The Definitive Guideline then breaks up the offense of aggravated burglary into three specific categories based on application of various exhaustive factors relating to level of harm and culpability, such as whether the victim was on the premises at the time of the burglary and whether violence was used or threatened. Each category has its own "category range," the lowest being one-to-four years and the highest nine-to-thirteen years. The Guideline also sets a "starting point" for each of these categories, the lowest category having a starting point of two years, and the highest of ten years. Once the category range and starting point are determined, the Guideline then lists various aggravating and mitigating factors that suggest a sentence higher or lower than the starting point. Examples for aggravated burglary include "Gratuitous degradation of victim" and "Good character and/or exemplary conduct." (204) These factors are non-exhaustive, and crown courts have wide latitude in identifying other factors that, in their judgment, affect the appropriate sentence in each case. (205)

   The English sentencing guidelines cannot be called mandatory, presumptive, or advisory as those terms are usually understood in the United States. The English guidelines are, in fact, something in between. Sentencing courts in England have a statutory duty to consult the guidelines and to "decide which of the categories most resembles" the defendant in a particular case. (206) Furthermore, sentencing courts in England "must ... follow" the guidelines "unless the court is satisfied that it would be contrary to the interests of justice to do SO." (207) If a court does not "follow" the guidelines, it must provide a statement of reasons explaining its decision. (208) However, this duty to "follow" the guidelines extends only to imposing a sentence within the entire offense range, not to imposing a sentence within the category range. (209) Using the aggravated burglary example above, the court's duty to follow the aggravated burglary guideline means only that the court must sentence within the one-to-thirteen year offense range. The court does not have a separate duty to impose a sentence within the category range; it need only determine the correct category range and starting point and take them into account.

   Ultimately, what this means for comparative purposes is that the English guidelines appear to be, in effect, a bit more binding than the post-Booker advisory federal Guidelines, but not by much. Two primary factors support this conclusion. First, offense ranges in England are quite wide--certainly far wider than the grid-based guidelines that are a mark of the guidelines regimes in the United States. Compare, for example, the twelve-year offense range for aggravated burglary in England, with the seven-month Guidelines range for a similar offense in federal court in the United States. (210) Accordingly, even with the duty to follow the offense range in England, there is nevertheless significant room for discretion on the part of the sentencing courts. (211)

   Furthermore, sentencing guidelines in England are characterized by a high level of flexibly, to a degree that is generally unknown in the United States. There is an often quoted phrase used in England that "sentencing guidelines are guidelines not tramlines." (212) The Court of Appeal reaffirmed this principle when it held that the statutory provision declaring that sentencing courts "must follow" the sentencing guidelines "does not require slavish adherence to them." (213) As the Court explained, not only do sentencing courts have "latitude" to sentence anywhere in the wider offense range, but the statute allows departure from the offense range where "the court is satisfied that it would be contrary to the interests of justice to do so." (214) This approach is designed to promote "consistency of approach to sentencing decisions up and down the country without sacrificing the obligation to do justice in the individual and specific case." (215)

   To further explain how guidelines work in England, and how the Court of Appeal enforces them, an example is helpful. In R. v. Xiong Xu, (216) the Court of Appeal issued a guidelines judgment regarding large-scale cultivation and production of cannabis. At the time, neither the Council nor the Court of Appeal had set out guidelines for this offense. In Xiong Xu, the Court stated its intent to "indicate the bracket" appropriate for different categories of the offense in order to achieve "some consistency of sentencing." (217) To do this, the Court granted seven defendants--who together represented a wide scale of involvement in the production process--leave to appeal. (218) All had been sentenced to four to five years' imprisonment. (219) On review, the Court of Appeal described the typical operation involved in the cultivation and production of cannabis, from the use of low-paid workers for labor, to the managers who arrange for delivery and distribution of plants, to the operators who obtain the premises and receive the profits. (220) The Court then explained that the problem of cannabis production had become more pronounced, characterized by very high profits, extremely strong drugs, and large-scale operations, (221) and that deterrent sentences are normally required in this context because the operations are extremely profitable, with minimal costs. (222) However, the Court cautioned that deterrent sentences are not necessary for "those at the bottom end of the hierarchy," explaining that "discovery and the threat of deportation" are "probably the most pressing concerns" for low-level workers who are typically "paid either nothing, but provided with board and lodging, or paid simply enough for subsistence." (223)

   With these facts in mind, and considering the maximum sentence of fourteen years, the Court described three different categories of offenses. First, for "those involved at the lowest level," the Court set the starting point at three years. (224) The starting point for managers was set at "somewhere between three and seven years depending on the level of their involvement and the value of the cannabis being produced." (225) Finally, for the organizers who "set up and control individual operations," the Court set a starting point of "six to seven years depending upon the quantity of cannabis involved." (226)

   The Court then reviewed the sentences of the individual defendants, determining that the sentencing judges used the wrong category ranges for the three defendants who were lower-level workers and who had little to no involvement in the management of the business. (227) To determine how much to reduce these sentences, the Court carefully reviewed the facts of the case, identified any mitigating or aggravating circumstances, and set the sentence that, in the Court's own judgment, was appropriate. (228) The Court...