Totality guideline consultation

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Closes 11 Jan 2023

Introduction

Background

In September 2021 the Council published a research report on the Totality guideline: Exploring sentencers’ views of the Sentencing Council’s Totality guideline. The Council stated that in the light of the findings of the research it would review the guideline and consult on the proposed changes in 2022.

The key findings of the research can be summarised as follows:

  • Most survey respondents thought that the guideline provides practical help in sentencing. Several made positive comments regarding the guideline’s examples, clarity and usefulness.
  • Survey respondents and interviewees both said that they do not always refer to the guideline. The most common way that survey respondents use the guideline is to apply its principles, based on their knowledge of its contents, and consult it only for difficult or unusual cases.
  • Nearly half the survey respondents said that they can find it difficult to apply the guideline in some circumstances, for example when sentencing offences that are dissimilar or have multiple victims, and some specific offences.
  • Sentencers also told us that, in cases with multiple victims and a range of offending, it can be difficult to reflect the seriousness of the offending against each individual victim in the final sentence.
  • To counter a perception among the public and victims that the totality principle is lenient, some interviewees thought it could be helpful to include in the guideline a reminder to the court to explain how a sentence has been constructed.
  • Most survey respondents commented on the length of the guideline, and some requested improvements to its format. We showed interviewees ideas for improving the format of the guideline (bullet points, drop-down menus and tables) and most were positive about the proposals.

There have also been a number of academic papers published suggesting that changes should be made to the Totality guideline. One of the issues noted by academics is the paucity of data on multiple offences. The Ministry of Justice does not publish figures on multiple offences. The data published by the Ministry of Justice (and used by the Sentencing Council in its statistical bulletins) relates to the principal offence being sentenced for an offender on a particular occasion. The Council recognised this gap in the data and in 2021 considered devoting resources to obtaining improved data on multiple offences. The conclusion reached was set out in the response to the ‘What next for the Sentencing Council’ consultation:

[I]n relation to analysis on multiple offences, we do not currently have access to extensive information on secondary/ non-principal offences or the sentences imposed for them. An approach based on the principal offence is therefore considered the most effective and pragmatic way of conducting our analysis given the data that is available and the difficulties of disentangling the effect of secondary offences on the overall sentence. We do agree that this might be an area to explore in the future but have decided that we need to prioritise other areas of work in the short and medium term. Once we have a clearer idea of the data we might be able to draw from the Common Platform, we will be able to reconsider this. We have therefore not included this as a specific action in our five year strategy but have included it in our longer-term analytical plan.

Despite concluding that we cannot obtain comprehensive data on multiple offences at this time, the Council will include a small number of questions in our pilot data collection exercise to capture information on whether offences have been adjusted to take account of totality and if so in what way. This will inform the type of data we may be able to draw on in the future.

Other suggestions from academics have included restructuring the Totality guideline around harm and culpability taking account of whether the sentences are to be served concurrently (at the same time) or consecutively (one after the other).

In the following sections the proposals are outlined in detail and you will be asked to give your views. You can give your views by answering some or all of the questions.

 
1. What is your name?
2. What is your email address?
3. What is your organisation?