“Here’s how it’s done”: English Court of Appeal takes judges to task on their sentencing statements.

Judges are supposed to give reasons for the sentences they impose (except perhaps in routine summary cases resulting in modest fines). Legal folklore is replete with tales of judges whose sentencing statements were extraordinarily brief or else showed a complete lack of understanding of offenders’ circumstances. There is the story of an unrepresented defendant who made a long and rambling plea in mitigation, ending with the ringing declaration “I am not guilty of this offence and that is as sure as God is my judge.” To which the (presiding) judge replied: “He’s not. I am. You are. Six months.” Then, John Mortimer used to tell of a homeless Irishman who appeared, yet again, before a London court charged with some public order or theft offence. The judge decided to let him off with a suspended sentence but on condition that he abstained from alcohol for six months. Then, addressing the defendant, he said: “Now, Mr Murphy, when I say “no drink” I mean absolutely no drink. Not even a small sherry before dinner.”

Nowadays, in cases of any appreciable level of seriousness, trial judges generally go to some trouble to explain the basis on which they have chosen their sentences, and this often entails describing the offence and its background in some detail. In jurisdictions such as England and Wales with detailed sentencing guidelines, judges may also deem it necessary to justify their reasons for allocating the offence to one offence category or sentence range rather than another, and to identify any factors that have led them to depart from the recommended starting point or range, as the case may be. In fact , once the Sentencing Council begins to produce guidelines in Ireland, courts will be required to state their reasons if they decide not to “have regard to” relevant guidelines when selecting sentence (Judicial Council Act 2019, s. 92).

English trial judges have apparently been setting out their reasons for sentence at increasing length, and progressively so during the past decade as the Sentencing Council has produced more and more definitive guidelines. Some sentencing statements are running to such length that the Court of Appeal felt compelled to step in, as it did in R v Chin-Charles [2019] EWCA 1140; [2019] 1 W.L.R. 5921; [2020] 1 Cr. App. R. (S.) 6. The Court in Chin-Charles consisted of the Lord Chief Justice, Hallett LJ (then Vice-President of the Court of Appeal (Criminal Division)) and Rafferty LJ. Usually, when the Court sits with that kind of composition, it means business, and it clearly did on this occasion. It listed two appeals to be heard sequentially (Chin-Charles and Cullen) purely, it seems, because in each case the trial judge had delivered a very lengthy sentencing statement (running to 17 pages of transcript in Chin-Charles and 76 pages in Cullen), though it must be said that Cullen involved a complex drugs and weapons conspiracy.

The Court of Appeal noted, first, that under s. 174 of the Criminal Justice Act 2003, a court must state openly, in ordinary language and in general terms, its reason for sentence. Further, the court must explain to the offender in ordinary language (a) the effect of the sentence; (b) the effect of non-compliance with any order forming part of the sentence; (c) any power vested in the court to vary or review any order forming part of the sentence; and (d) the effect of failure to pay a fine, if one is imposed. Nowadays, as well, a court is expected to identify any definitive sentencing guideline applicable to the case. The Court of Appeal then proceeded to say:

“The key to the nature of sentencing remarks is the use of the terms “in ordinary language” and “in general terms.” The offender is the first audience because he or she must understand what sentence has been passed, why it has been passed, what it means and what might happen in the event of non-compliance. If the offender understands, so too will those with an interest in the case, especially the victim of any offence and witnesses, the public and the press.

There has been a tendency in recent years, understandable but unnecessary, to craft sentencing remarks with the eye to the Court of Appeal rather than the primary audience intended by Parliament. This has led to longer and longer remarks. It is not unusual to find the equivalent of a judgment, with extensive citation of authority, detailed discussion of the relevant guidelines, expansive recitation of the various arguments advanced and a comprehensive explanation of the resolution of factual and legal issues. This should be avoided.”

Having disposed (quite briefly) of the two appeals, the Court did something unusual. It appended to its judgment a transcript of the trial judge’s sentencing statement in Chin-Charles (Appendix A) together with its own version of what that statement should have been (Appendix B). The contrast between the two is indeed striking. As printed in the Weekly Law Reports, the trial judge’s statement runs to about 7 pages (5930-5937) while the Court of Appeal’s version occupies a page at most. Reading the two together evokes something of a Goldilocks sensation: the trial judge’s statement is too long; the Court of Appeal version is too short; something in between, but closer to the Court of Appeal version, would be just right.

I suggest that the Court of Appeal was right about one thing, but wrong about a number of others. It was right to stress that the offender, and not an appeal court, is the primary audience of a trial judge’s sentencing remarks. A judge should proceed on the basis that the sentence he or she imposes is the final sentence (and in most cases it actually is) and explain why, in his or her judgment, it is the appropriate sentence. Of course, a sentence may later be varied on appeal but, as the Court of Criminal Appeal (per Murray C.J.) explained in People (DPP) v Keane [2008] 3 I.R. 177 at 179-180, courts in most countries are arranged in a hierarchical structure and courts of appeal “have long been seen as an important and essential element in calibrating the scales of justice and thus ensuring confidence in the judicial process.” The Court of Appeal in Chin-Charles was also right to describe the offender as the primary audience. Others are also entitled to know the reasons for a sentence, and they include the general public on whose behalf justice is being administered by the courts. There are times when it is particularly important to justify a sentence to the public as well as to the offender. As noted in an earlier post on this blog, the trial judge in the Cardinal Pell case in Australia took about an hour to deliver his sentencing statement which was a very good one, covering all relevant matters quite concisely. But that was needed in Pell’s case because of the extraordinary amount of publicity (including a great deal of adverse comment) that had surrounded the prosecution and trial, not to mention the intense public interest in the outcome. There will always be cases like that.

I would, however, take issue with the Court of Appeal for criticising some sentencing statements as being “the equivalent of a judgment.” Surely, that is exactly what they are and what they should be. If the High Court in the exercise of its judicial review jurisdiction is expected to deliver a considered judgment in, say, a challenge on procedural grounds to a District Court conviction for a minor theft offence, why should a court order depriving a person of their liberty for months, years or decades call for anything less than a public, reasoned justification? In fact, it is a great pity that trial court sentencing statements are not published more often, electronically or otherwise. In this country, the judgment (effectively a sentencing statement) of Flood J. in People (DPP) v W.C. [1994] 1 I.L.R.M. 321 is a seminal statement of the principle of proportionality which has been confirmed and developed in many later appeal court judgments.

Secondly, the model judgment, if one might so describe it, suggested by the Court of Appeal in Chin-Charles leaves something to be desired. It may cover the bare essentials, but that is scarcely enough. A sentencing statement should explain, however briefly, why the offence of conviction is being treated as seriously as it, especially when, as in Chin-Charles, the offence involves the infliction of a significant personal injury. One need not subscribe to Jean Hampton’s one-time theory about moral education being the main justification for punishment to accept that sentencing provides an opportunity, indeed an obligation, to set out (again as concisely as possible) why society condemns the conduct constituting the offence. Censure is now regarded by many leading punishment theorists and philosophers as the main justification for state punishment. At the very least, censure is an obvious characteristic of judicial sentencing. One can scarcely censure another very effectively without elaborating to some degree on the nature of the offence, its impact on the victim where there is one, and the reason why such conduct is worthy of condemnation. Further, if consistency is treated as an important sentencing value, as it clearly is in any jurisdiction that has taken the trouble to adopt formal guidelines, then, contrary to what is suggested in Chin-Charles, a court should explain in some detail why it has chosen a sentence within a particular range.

This leads me to mention one reservation which I have about the adoption of detailed sentencing guidelines. Once a comprehensive set of such guidelines has been developed, there is a danger that sentence appeals may become exercises in compliance. The predominant, if not the sole, question may be if the sentence is in conformity with the applicable guideline. There may be much less emphasis, if any, on what might be termed moral reasoning, namely, an analysis of why the offender’s wrongdoing merits formal condemnation and punishment. This is not an inevitable consequence of guidelines, but it is one that both trial courts and appeal courts should strive to avoid.

Apart from all that, there is an irony surrounding Chin-Charles. As Lydon Harris points out in his comment on the case in the Criminal Law Review ([2019] Crim. L.R. 893), the English Court of Appeal has often, including in the very recent past, praised sentencing judges for their “careful and comprehensive” sentencing remarks. On other occasions, it has been critical of brief and vague remarks where the basis of a sentence was left “unexplained.” Indeed, one finds similar comments in judgments of our own Court of Appeal. I am not suggesting that Chin-Charles would be followed here, and there is no reason why it should be. However, it is still worth reading (critically) in order to prompt reflection on how trial judges should go about framing their sentencing statements. Certainly, they need not contain anything like the level of detail in the trial judge’s statement in Chin-Charles (not to mention the 76-page statement in the companion case of Cullen, complex though it may have been). But they should at a minimum identify the degree of gravity of the specific offence (taking account of harm and culpability), victim impact, aggravating and mitigating factors and, where guidelines exist, the applicable sentence range. It is now well established here in Ireland that a court should always specify a headline sentence based on the gravity of the offence before making adjustments for factors personal to the offender and any other ethically relevant considerations. Nor, pace the Court of Appeal in Chin-Charles, should a court shirk from identifying and discussing any authorities (whether legislation or case law) that have some direct bearing on the sentence the court has decided to impose. Finally, of course, a court should take care to explain to the offender the effect of the sentence and of any ancillary orders, and the consequences of non-compliance. This, as noted earlier, is required by statute in England and Wales but, even in the absence of such legislation, it is required as a matter of fundamental justice.

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