The Use of Discretion when Sentencing Criminals (2022)

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Published: 7th Aug 2019

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Jurisdiction / Tag(s):UK Law

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Discretion is referred as the power of the judiciary which enables them to make legal decisions at their own discretion. Throughout the criminal process discretion is evident, from the police to the regulatory agencies right through to the Crown Prosecution Service. “The essence of monocracy, the rule of law, is limitation of the discretion of officials, and providing a process by which errors or abuse of discretion can be corrected.” ( ). Discretion is no doubt unavoidable, as the law cannot foresee every eventuality. However, with the sentencing guidelines, which came into force after the 2003 Criminal Justice Act, it has been able to help encourage consistency in the court room. “We trust officials to exercise such discretion as they have with wisdom, justice, and competence, to avoid government that is arbitrary, insolent, discriminatory, prejudiced, intrusive and corrupt.” ( ). It has to be said discretion does have its advantages, “in the shape of flexibility to respond to different combination of facts.” (Ashworth, 2005:30) Discretion of the judges when sentencing offenders can bring forth disadvantages, as the personal views of the decision-makers influencing the final decision. However, replacing discretion with set guidelines may eliminate these advantages and disadvantages.

Discretion within the United Kingdom’s jurisdiction has changed over the decades. In English law the principals for sentencing are legislation, definitive sentencing guidelines as well as judicial decisions. Parliament passes statutes which create the framework for English sentencing law. For approximately every offence there are statutes which lay down a maximum sentence for judges to use as a guideline. The purpose of legislation is to impose orders for a criminal court to lay down after a conviction has been reached, and the legislation can limit the powers which the Magistrates Court hold. “Sentencing is the exercise of discretion,” (Mc Kenzie, 2005:41) and legislation as part of the English sentencing law provides boundaries which can be characterised by considerable discretion.

The separation of powers in the aspect of sentencing has never been resolved. The principle implies that legislature controls the sentencing powers and the courts must apply the law imposed by Parliament. However, Parliament having superiority over the judiciary in terms of English sentencing law does bring forth the question about discretion of the judges to use their moral judgement to impose a sentence. Judicial discretion has been a prominent feature of English sentencing law for the past hundred years. During the first half of the nineteenth century judicial discretion was restricted by two factors. “There were maximum and minimum sentences for many offences, and several statutes provided a multiplicity of different offences with different graded maxima.” (Ashworth, 2005:51) Judges found themselves with less desertion in the court room and in the later part of the nineteenth century, “were tightly constrained in their sentencing.” (Ashworth, 2005:51) The Theft Act 1968 and the Criminal Damage Act 1971 replaced a substantial number of offences which dated back to the nineteenth century; these statutes increased the discretion of the judges. By the late 1990s the Lord Chief Justice delivered a number of guidelines for a small fraction of offences. However, by the introduction of the Crime and Disorder Act 1998 two key changes were imposed. First was the creation of a Sentencing Advisory Panel whose main purpose was to draft guidelines and the second major change imposed was “the power of the Court of Appeal to give guideline judgements was restricted to offences on which it had received advice from the Sentencing Advisory Panel, although it was not bound to accept the Panel’s advice.” (Ashworth, 2005:33). This new change continued until the Criminal Justice Act 2003 changed the structure of the settings previously imposed.

The effect of the Criminal Justice Act 2003 was the establishment of a structured sentencing framework. A newly formed body, the Sentencing Guidelines Council works alongside the Sentencing Advisory Panel which was appointed under the Crime and Disorder Act 1998. The two bodies work together to create authoritative guidance on sentencing within the English court rooms. “The Sentencing Guidelines Council’s role is to encourage consistency of sentencing in all courts in England and Wales, supporting judges and magistrates in their decision-making.” ( ) these new guidelines have reduced the moral judgement of judges, by reducing their discretion; before the guidelines were introduced the judges seemed to have more freedom using their moral judgement at their own discretion when imposing a sentence upon offenders. The Sentencing Guidelines have made an impact within the sentencing system of English sentencing law, but whether it is for the best or not has been subject to controversy over recent years.

When judges impose a sentence there is always a question of discretion against the rule of law. Many people are of the belief that sentencers should use their own moral judgement to be able to exercise sufficient discretion to every individual case, but on the other hand the question arises, does this remove the rule of law and the legislation in which the judge should follow when discussing sentencing. “The rule of law means that judicial decisions should be taken openly and by reference to standards declared in advance.” (Ashworth, 2005:72) The Sentencing guidelines give judges guidance in advanced and their aim is to provide consistency and to remove unjustified sentences.

The role of judges is to apply appropriate law to the crime committed and impose a sentence which is proportionate to the crime committed. The judge uses’ his or hers own moral judgement at his discretion to create a sentence which will not only rehabilitate the offender but also act as a deterrence to the general public. The judges can be influenced by certain factors and for this reason it is good idea for some of their discretion to be removed under the Sentencing Guidelines imposed after the 2003 Act.

Judges have experience and knowledge of the law and in sentencing offenders, thus should be trusted to exercise their moral judgement at their own discretion when imposing a sentence. However, how much discretion of their own moral judgement should a judge be allowed to exercise? A judge can bring his of hers own personal emotions to a case, and become personally involved to such a case, which may result in an unfair and unjustified sentence. For instance, perhaps a judge had been connected to person who was killed by a drunk driver and the same judge was sitting as a judge on a case where the defendant drink driving injured a person. The judges own morals and life experience on this may result in a harsher sentence than what may have been reached if the judge was not personally connected to the case. A judge’s discretion should be used with caution.

The Sentencing Guidelines have enforced a structured framework which is hard for judges to use their moral judgements and experience to use discretion when imposing sentences. Geraldine Mc Kenzie when doing research of the UK Crown Court found that many judges didn’t agree with the limitation of discretion due to these rigid guidelines. “Judicial discretion plays a pivotal role in the sentencing process. It is the judge’s role to take all relevant factors into account and give a right and just sentence for the offender, the victim, and the community…there may be a range within which the case fits, but no two cases are the same.” (McKenzie, 2005:45) The sentencing guidelines council working alongside the Sentencing Advisory Panel has experience and knowledge of the law. The Panel consists of judges, magistrates, academics, criminal justice practitioners and people from outside the criminal justice system, so the guidelines that are in place in our present jurisdiction are a good indication of what sentences are appropriate and proportionate to the crime committed, and thus judges should not need more discretion.

In the Akron Law Review, Joshua Dressler commented on the rigidness of having sentencing guidelines. “Under the guidelines, the judges have little discretion; they just have a mechanistic process for calculating a punishment.” (Dressler, 2005:856) the same idea of the guidelines being a mechanical process was an issue that Mc Kenzie also raised, she emphaised that using guidelines was more a mathematical equation which is too inflexible in the sentencing process which would evidently lead to injustice. “Sentencing is not a mechanical thing. The idea of using sentencing grids is too inflexible.” (Mc Kenzie, 2005: 52)

The high Court in Australia challenged the use of discretion in the court rooms and Ashworths records, “the court should not have discretion in the imposition of sentences, for circumstances alter cases and it is 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.” (Ashworth, 2005:52). This same argument can 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’ power.” (Ashworth, 2005:52)

Many judges believe that judicial discretion is important and vital part of imposing sentences, as just like fingerprints no two cases are the same, so how can the guidelines calculate the eventuality of every single circumstances surrounding every case brought forth to the court. It is vital to use the moral judgement of judges to tailor sentences to every individual circumstances and variety of facts. Mc Kenzie in her book How Judges Sentence, did research of the UK Crown Court and found the beliefs of many judges to be the same, for the imposition of judicial discretion within the court room. “There should be some judicial discretion and the reason is because the judge has the flesh and blood of the person in front of him or her, and the full circumstances of that person there.” (McKenzie, 2005:45) Mc Kenzie went on to express her views of using the sentencing guidelines only dehumanises the sentence and creates a mechanical process which can forget all the individual circumstances and facts. Judge Cooke also agreed with this and Ashworth quoted Judge Cooke views on the calculation of sentencing; “the exercise of discretion in sentencing must remain in human hands. You cannot program a computer to register the ‘feel’ of a case, or the impact that a defendant makes upon the sentencer.” (Ashworth, 2005:48)

The sentencing guidelines drafted up after the Criminal Justice Act 2003, have caused major debate in recent years. The guidelines do enforce a role of consistency within the courts, although it does leave judges with little room for moral judgement when enforcing sentences. Jack Straw, the Justice Secretary, emphaised, “judges’ discretion would remain.” ( ) A spokesman from the Ministry of Justice added, “we are not proposing a sentencing matrix or any mandatory guidelines, nor does the Government have any intention of removing judicial discretion from sentencing in individual cases.” ( ) A senior judged quoted in the same article in the Daily Mail, “we do not believe that the introduction of mandatory guidelines will facilitate the just and proper sentencing of offenders. We consider that the imposition of mandatory guidelines may result in injustice to both offenders and victims in individual cases.” ( ) Many believe that the new guidelines have replaced the traditional role of the judiciary of deliberation and moral judgement and replacing their exercise of discretion with “calculations that convey the impression of scientific precision and objectivity.” (Dressler, 2005:856) A judge is seen as figure of moral authority within society, however by taking away their discretion and their ability to express moral judgement their moral objective seems to be lost within the guidelines. The guidelines do establish a structured discretionary for judges which should be exercised in an impartial manner. Ian Mc Kenzie quotes the argument of Goldstein towards discretion, “if discretion is to be exercised in an equitable manner, it must be structured; discretionary areas must be defined…” (Mc Kenzie, 2002:68) In a publication from Parliament which discusses the Sentencing guidelines states, “sentencing guidelines fall in between the exercise of discretion by individual sentencers and the overall frame work drawn up by Parliament.” ( In the same publication we get a clear indication as to why Parliament suggests the reason behind having guidelines, “it is vital that Parliament, representing the public voice, contributes to sentencing guidelines as they are produced and in doing so identifies the crucial issues of public confidence and the effectiveness of sentencing. We are convinced this is compatible with safeguarding the crucial discretion of sentencers to impose a sentence tailored to the individual case.” (

To conclude, the current approach to sentencing guidelines does allow some room for judges’ moral desertion, by starting from a certain range of sentencing’s for all similar cases. “The judges’ ability to respond to the individual case takes place only within the range of influence that his or her decision can have and according to the framework set by Parliament.” (

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