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The Summary Justice Review Committee: REPORT TO MINISTERS
Chapter 28: SENTENCING INFORMATION SYSTEM
28.1 Politicians, the media and the public expect sentencing practice to be consistent and uniformly applied as between cases, within courts and between courts. Apparent inconsistency is commonly perceived to be an indicator that there has been injustice. Inconsistency may be much more apparent than real. The circumstances of two superficially similar cases may be radically different. The circumstances relating to the offender and his or her past criminal record may be wholly dissimilar. That said, both plentiful anecdotal evidence and research 66 indicates that sentencing levels vary a great deal from one sentencer to another and from one court to another, to an extent which cannot be accounted for other than in terms of differences in sentencing practice.
28.2 We received evidence that defence lawyers in courts with more than one judge will attempt to arrange that their clients' cases do not call before a judge who is perceived to be a severe sentencer and that they do call before a judge who is perceived to be lenient. The former can often only be achieved by finding some justification for getting a case adjourned. In the sheriff court this is known as "sheriff shopping" and leads to unnecessary adjournments and continuing adherence to not guilty pleas where the ultimate intention is to plead guilty. We accept that there is scope for greater overall consistency in sentencing. An offender who appears before a particular court should not be likely to receive a sentence which is very different from the sentences which would be imposed in the majority of courts in very similar circumstances.
28.3 A sentencer can only be consistent with other sentencers if he or she is aware of the sentences being imposed by other sentencers or if there are guidelines indicating a general level of sentence for particular types of offence, making due allowance for aggravating and mitigating factors. Such guidelines have been in use in magistrates' courts in England and Wales for many years now and are, by and large, found to be very helpful by lay magistrates there. The District Courts Association has been actively engaged in preparing similar guidance for lay justices in Scotland. So far as guidelines in Scotland are concerned, sections 118(7) and 189(7) of the 1995 Act provide that in disposing of an appeal the High Court may pronounce an opinion on the sentence or other disposal or order which is appropriate in any similar case to the case then under appeal. In terms of section 197 of that Act a court in passing sentence is required to have regard to any relevant opinion pronounced under either of these sub-sections. The High Court has given some guidance in relation to levels of appropriate sentence through the use of those provisions. However, it has not attempted to formulate guidelines as to the appropriate sentence for particular crimes at all levels of gravity as the Court of Criminal Appeal has done in England and Wales. Recently the High Court provided guidelines in relation to sentence discounting. 67 If guidelines were to be issued for a crime such as theft by housebreaking, all courts would be required to consider the guidance given in determining the appropriate sentence in a particular case.
28.4 One way in which courts could be made aware of the sentences imposed in other courts for comparable offences is by using a sentencing information system (SIS). A modern SIS is a database designed to provide judges with sufficient information to place the offender who is currently before them in a broader context by enabling the judge to learn what sentences have been imposed on similar offenders in broadly similar circumstances. Almost all of the SISs in existence involve a relatively crude analysis of the crime or offence committed and the features of it which may affect sentence, such as the circumstances in which it was committed, the consequences for the victim and the criminal record and age of the offender. 68 Apart from details of the sentence imposed there may be a note of the reasons why that sentence was imposed in that case, especially if the sentence differs from the norm. 69
28.5 The benefit of such systems is that they display in bar chart form or graphically the types of disposal in comparable cases, and within that type of disposal, the extent of the sentence imposed. In the case of sentences of imprisonment there tends to be a relatively closely defined range within which most sentences fall with a few further removed from the norm. In the case of fines a high percentage of the fines imposed are likely to fall within a relatively narrow range. They tend to be grouped around a mid-point. We consider that the availability of information of that kind would be likely to lead judges to impose sentences which are more consistent over time.
28.6 We recognise that there are issues to consider as to whether such a system would encourage judges to impose the appropriate type and level of sentence or not. This seems to us to be a matter that the Sentencing Commission may wish to examine. From the point of view of avoiding sheriff shopping and other phenomena aimed at delaying the progress of cases, we consider that a sentencing information system offers considerable potential.
28.7 We have discussed the possibility of extending the SIS used by the High Court of Justiciary in Scotland or replicating it for summary criminal cases. Our understanding is that that should be possible without great cost. We would not suggest that summary courts should have access to the High Court part of the system in its present form. We would suggest that there should be a system for summary courts which used, so far as possible, the software developed for the High Court.
28.8 The SIS used by the High Court of Justiciary in Scotland can only be accessed by judges of that court. Cases on that system show the name of the judge who imposed sentence. We suggest that the software be modified for summary courts so that access can be made available to COPFS and to defence lawyers in order to further transparency and encourage confidence in consistency of sentencing. We do not believe that the data to which they have access should include the identity of the judge who dealt with a particular case as we would be anxious to avoid arguments in the course of a plea in mitigation directed at the sentencing policy of a particular judge. If that is to be examined at all it should be subjected to objective research.
We consider that a sentencing information system would have benefits in furthering consistency in sentencing and reducing the phenomenon of "sheriff shopping", thereby encouraging more early pleas. We recommend that this issue be examined further by the Sentencing Commission.
We suggest that a sentencing information system for summary courts could use, so far as possible, the software developed for the current High Court system. We suggest that the software be modified so that access can be made available to COPFS and to defence lawyers. They should be able to gain access to all the data other than the identity of the judge who dealt with a particular case.
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