Consistency in sentencing: Is the current guidance in England and Wales adequate?

Consistency in sentencing is widely considered to be an essential component of a fair sentencing system; but what is consistency? This thesis argues that it incorporates both procedural and substantive elements, focussing upon the proper application of principle. In doing so, the notion of comparing ‘like’ cases is rejected as simplistic, impractical and unprincipled. It is argued that a more principled approach reconciles the tension between consistency and individualised justice which has been argued to exist. In the face of clear and consistent empirical evidence – from multiple jurisdictions – of inconsistency in the face of an absence of structure, it is vital that sentencers’ powers are structured in a way which encourages sentences to be imposed in accordance with the principles underpinning the scheme while maintaining the ability to individualise sentences. This thesis focuses upon England and Wales and therefore the concept of consistency concerns the application of the principles underpinning the largely retributive scheme in operation in that jurisdiction. Parliament, the Court of Appeal (Criminal Division) and the Sentencing Council all provide structure as a means of promoting consistency. The methods employed by these institutions are critically examined to establish the combined efficacy of the structure in place in England and Wales. This thesis concludes that they provide an adequate degree of structure as means of promoting consistency, though more could be done. In particular, the Sentencing Council’s guidelines represent the most promising means of structuring discretion. Guidelines provide a clear approach to the assessment of the key factors driving the determination of sentence, namely culpability and harm, which must be followed. In particular the ‘ranking’ of factors relevant to this assessment strongly encourages consistency of approach which, it is argued, is highly likely to produce greater consistency of outcome. This structure is adequate, though improvements could be made to achieve greater consistency without unduly restricting sentencers’ powers.