Following a consultation on the Council’s future priorities in 2020, we set ourselves a strategic objective to explore issues of equality and diversity relevant to our work and take any necessary action in response. To help us achieve this, we commissioned a research team from the University of Hertfordshire to examine whether there was any potential for the Council’s work to cause disparity in sentencing outcomes across demographic groups.
About the research
We asked the researchers to look at the potential impact of a number of factors in sentencing guidelines that would increase or decrease a sentence (which they refer to as upward and downward factors), some of which are common across multiple guidelines.
The research assessed the potential influence of the language, factors and explanatory texts used in guidelines as well as their structure, the guideline development process, and the Council’s relationship and communications with stakeholders.
The team used a multi-method approach combining textual analysis, data analysis and engagement with stakeholders. Participants included 33 sentencers (magistrates, district judges, crown court judges and High Court judges); 20 defence lawyers; and 14 civil society organisations who covered each of the Equality Act 2010 protected characteristics, such as sex, age and race.
Which guidelines were examined?
The research focused on offence-specific sentencing guidelines for robbery (adults, as well as children and young people); theft (theft from the person, theft in breach of trust, theft from a shop or stall and handling stolen goods); and harassment and stalking (fear of violence).
These guidelines were chosen because they include higher volumes of offences and contain factors and expanded explanations that are applicable across a number of guidelines. The team also looked at the overarching guideline for sentencing children and young people to ensure both types of guideline—offence-specific and overarching—were covered.
What did the research find?
The researchers’ final report identified several findings and made recommendations for the Council, including:
- Stakeholders said they thought that many of the sampled factors could lead to disparities in sentencing outcomes. For example, some said that young people tend to gather in groups so might be adversely affected by the aggravating factor relating to ‘group activity’, and others said that remorse as a mitigating factor might not be applied consistently to people from certain ethnic groups who could be hesitant to express remorse. The data analysis showed these factors had a mixed impact across offences and demographic groups.
- Civil society organisations said that they perceive women to be sentenced more harshly than men, but the research found no evidence that upward or downward factors might have a differential impact on sentencing male and female offenders. However, the data analysis did show that men were more likely to receive immediate custody for robbery and all types of theft.
- No strong or consistent evidence of sentencing disparities for different ethnic groups was found either directly or through the impact of upward or downward factors, although this does not accord with previous Sentencing Council and other academic research.
- Research participants’ perceptions that younger offenders receive more favourable sentencing outcomes was supported by the data analysis.
How is the Council responding?
We have published a response to this research, setting out the actions we plan to take. For a number of these pieces of work we will be asking, or already have asked, magistrates to contribute.
- In January this year we began collecting data in magistrates’ courts and the crown court that will give us the information to allow us to conduct more related research.
- We have been doing user testing to explore how magistrates are using our digital sentencing guidelines, including the expanded explanations.
- Later this year we will be asking magistrates to contribute to a review of expanded explanations, aggravating and mitigating factors.
- We are reviewing, and will soon be consulting on, the guideline for imposition of community and custodial sentences. This review will also cover when and whether sentencers request pre-sentence reports and so receive the information they need about individual offenders.
Magistrates are a great source of information and assistance to the Council, and I look forward to continuing to work with Magistrates’ Association members to help develop guidelines that bring clarity and consistency to sentencing and transparency for victims, witnesses and defendants and other court users.