A legislative or policy vacuum

There are many factors, which can influence judges decisions, referring to particular cases, the judge or magistrate must consider how serious the particular offence is in relation to other similar offences and assess whether or not the offence had any mitigating or aggravating factors. Judges are also likely to take into account the previous convictions and record of an offender, and the recommendations in the pre-sentence report. Sentencing is not done in a legislative or policy vacuum; there are statutory requirements.

All offences have statutory maximum sentences such as fourteen years for burglary of a domestic dwelling, although this maximum is rarely, if ever, used. It provides an indication however of Parliament's view of the seriousness of the offence and so helps to set the sentencing tariff (Davies et al, 1998 p. 257). A major influence on sentences in the Crown Courts in England and Wales is the appeal system. This deals with appeals from the Crown Court against conviction and sentence. Most appeals however, are against sentence. In the 1980s and 1990s the Court of Appeal gave guidance to judges with a series of guideline cases.

Guideline cases are those where the appeal court has taken the opportunity to lay down detailed guidance to assist the courts in sentencing. While these cases are an important and influential guide for lower courts in sentencing, they have limitations. First, the Court of Appeal can only respond to cases brought before it: therefore no systematic approach to offences or a certain range of offence can be made. Secondly, the cases that come before the Court of Appeal have, until recently, been a result of appeals against sentence on behalf of the defence. These are examples of relatively open and identifiable influences on sentencing.

However, as with any other discretionary process, informal factors also play a role. Sentences may be directed towards different aims, and many different considerations can affect their decision (Davies et al, 1998 p. 262). The sentencing powers of magistrates are subject to certain general statutory restrictions in addition to the maximum penalties prescribed for each individual offence. Magistrates may, having heard the evidence in a case, commit it to the Crown Court for sentence, if they form the view either that the offence was so serious that greater punishment should be inflicted than they have the power to impose.

Or, that a longer custodial sentence is necessary to protect the public from serious harm. A person who has been sentenced in the magistrates' court may appeal against sentence to the Crown Court. The appeal takes the form of a complete rehearing of the case, before a circuit judge or recorder and two lay magistrates. The Crown Court has the power to pass any sentence that the magistrates' court could have imposed, even if that sentence is more severe than the one they had imposed. (Sanders and Young, 2000. p487-489)

In the magistrates' courts, sentencing decisions have increasingly been influenced by guidelines issued by the Magistrates' Association (Davies et al, 1998 p. 257). These guidelines were originally issued in the 1970's in respect of motoring offences in an effort to curb complaints of inconsistencies between benches. These guidelines proved successful in some cases, especially where the offences could be easily compared. Their use, after consultation with the Justices' Clerks' Association and the Lord Chancellor's Department, was extended to most offences dealt with in the magistrates' courts.

More guidelines were issued to clarify the implementation of the Criminal Justice Act 1991 and reflected not only the framework of that Act but also the move towards more structured decision making. The guidelines were reissued in 1993 to reflect the changes in the Criminal Justice Act 1993 and in particular the abolition of unit fines, and again in April 1997. Although the guidelines inevitably lead to greater consistency, their influence can be a source of concern when judges feel unable to give a sentence they think to be appropriate in an individual case.

The concern is that the, guidelines, which are merely advisory, become the basis of rigid tariffs (Davies et al, 1998 p. 261). In a detailed review of sentencing decisions in the Court of Appeal, David Thomas identifies a twofold sentencing process. In the first, or primary, sentencing decision, judges decide on the basis of the individual case whether a 'tariff sentence, primarily a retributive deterrent sentence, is appropriate or whether the sentence should be individualised, that is based primarily on rehabilitative grounds (Thomas, 1979 cited in Davies et al, 1998 p.262).

Individualised sentences may also be based on incapacitate and deterrent considerations with respect to the individual offender before the court, and will depend on an assessment of the likelihood of their re-offending and the danger they may be to the public. The secondary decision is which sentence will be imposed. Factors affecting the primary decision include both the personal characteristics of the defendant such as age, sex and previous history along with relevant personal circumstances and the seriousness of the offence.

Where sentences are individualised it is extremely difficult to discern whether or not they are consistent as many factors may affect the individual case (Thomas, 1979 cited in Davis et al, 1998 p. 262). 'There are few offences that carry recommended penalties. The Magistrates' Association and the Home Office give magistrates 'guidance' on appropriate sentences for most offences but they are not bound by it. Both magistrates and judges possess wide discretionary powers in the choice of sentence. Thus the Judiciary is most likely to be publicly criticised over the too harsh or too lenient sentences it hands out in individual cases.

' (Fitzgerald and Muncie, 1983 p. 135-36) Influences undoubtedly contribute to the variations found throughout the country, which have caused much concern. They may also, arguably, produce disparities not only when individual offenders are compared, but also when groups of offenders are compared. There has been criticism, for example, about the fairness of sentencing policy in relation to women and ethnic minorities. Concerns about the treatment of both unemployed and white-collar offenders raise issues of how far socio-economic status affects sentencing decisions.

Women are generally assumed to be given a more lenient sentence than men are. A view often attributed to a 'chivalrous' attitude on the part of judges, who may assume that a woman's crime is more likely to be related to mental illness or medical problems, and be reluctant to send women to prison especially when they have children. However, it can be argued that women may be more harshly dealt with by the courts, as women who have offended may be seen as 'doubly deviant', deviant as offenders and deviant as women (McLaughlin and Muncie, 1996 p.137-46).

Hedderman and Hough, 1994 (cited in Davies et al, 1998 p. 265) reported that: 'Women are far less likely than men are to receive a custodial sentence for virtually all-indictable offences are, except drugs. When women do receive prison sentences these tend to be shorter than men's, one of the reasons for this is that women are less likely to be dealt with at the Crown Court are. Women are also less likely to receive prison sentences irrespective of the number of previous offences. '

Hedderman and Hough(1994) argue that these findings, 'call into question claims that the criminal justice system is systematically more severe towards women than men. If anything, the evidence points to more lenient treatment of women. ' However, Eaton, 1986 (cited in Davies et al, 1998, p. 265) found that courts tended to look carefully at female offenders' family and domestic situations, which might lead to the effect of more indirect forms of differentiation, reflecting notions of the 'ideal' woman, related to family and domestic considerations.

Where a woman was seen to be capable of looking after her children, and her husband was available to support her, the courts may be more lenient. There has been considerable concern about whether ethnicity influences the way people are dealt with in the criminal justice system. In one study to estimate the size of any race effect in sentencing, Hood, 1992 (Ashworth, 1997; cited in Maguire, Morgan and Reiner, 1997, p. 1106-8) found that a limited part of the difference in custodial rates between white and non-white offenders might be attributable to racial factors.

Flood-Page and Mackie (1998) refer to research showing that: 'ethnic minorities are treated and act in different ways at key stages in the criminal process. There is a lot of evidence that Afro-Caribbean's are less likely to admit an offence and therefore make themselves ineligible for a caution … This also means that they are less likely to benefit from the discount for a guilty plea' (Flood-Page and Mackie, 1998 p. 116).