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This report summarizes sentencing outcomes for different ethnic groups in England and Wales. It is based on analyses of court data over the period 2009-2019. All previously published reports present the data on custody rates and on average custodial sentence lengths separately. In this report, we combine these two measures to form a new measure of punitiveness for indictable offences: the ‘Expected Custodial Sentence’. This measure provides a more comprehensive measure of the use of imprisonment. Whilst the Expected Custodial Sentence increased for all ethnic groups throughout the period 2009-2019, the figure for White offenders is consistently lower than for other ethnic groups. In 2019, the Expected Custodial Sentence for an indictable offence ranged between 6.6 months for a White offender and 10.2 months for an Asian offender. However, the overall Expected Custodial Sentence figure masks considerable variation across offence categories, with the greatest divergence evident for violent offences against the person.

This paper explores the ways that sentencing guidelines, properly constructed, can promote proportionality at sentencing. The essay uses the sentencing guidelines created in England and Wales to illustrate the potential benefits, and challenges, associated with this method of structuring judicial discretion at sentencing.

Sentencing for multiple offences poses many challenges and becomes even more complex when the crimes resulted in fatalities. This article uses the sentences imposed following convictions in the Essex lorry case to pose some general questions about the sentencing of multiple victim manslaughters. The four principal offenders were convicted of 39 counts of unlawful act manslaughter and conspiracy to facilitate unlawful immigration into the UK. The analysis identifies several ways in which the sentences ultimately imposed failed to adequately distinguish between offenders of very different levels of culpability. First, all four principal offenders were assigned to the same level of culpability in the manslaughter guideline. Second, although the court could have distinguished the offenders to reflect their different culpability levels, the same Starting Point sentence was imposed on all offenders. Third, the sentencing uplifts to reflect the multiple counts were similar across offenders of very different culpabilities. Fourth, the differential additional punishments for the conspiracy conviction – which would have separated the offenders' time in custody further – were washed out by being made concurrent. As a result of these decisions, the final sentences failed to adequately distinguish between offenders of very different culpabilities. The article concludes with some lessons for sentencing in these cases, specifically with respect to the Sentencing Council's guidelines.

The scholarly literature on sentencing reform has largely overlooked Africa. The paucity of legal scholarship is particularly striking with respect to Tanzania, one of Africa's largest and most populous countries. This article explores the first significant sentencing reform in Tanzania's history. In 2020, the Tanzanian judiciary issued a comprehensive set of sentencing guidelines for courts to follow. Until this point, sentencing was a highly discretionary stage of the criminal process. Courts had wide discretion, and the Tanzanian penal code offered very little guidance with respect to the exercise of that discretion. After providing a brief summary of the sentencing regime, we explore the innovative guidance contained in the reforms. At the conclusion we discuss the extent to which the Tanzanian reforms reflect core African values of Ubuntu, or more specifically in the case of Tanzania, Ujamaa, the philosophy promoted by Tanzania's first President, Julius Nyerere.

How does the passage of time affect sentencing? Increasingly, courts around the world are being required to sentence offenders for crimes committed years or even decades earlier. Prevailing conceptions of harm and culpability change over time. Policy makers concerned with punishment and sentencing should be sensitive to changes in the absolute and relative seriousness of crimes as well as the absolute and relative severity of punishments. Ordinal rankings of offenses have evolved over the past 50 years, as has our understanding of the impact of various sanctions. Issues raised by sentencing for crimes committed much earlier illustrate the need for a time-sensitive approach. Should defendants be sentenced according to standards prevailing at the time of the offense or according to current standards? Courts in different jurisdictions have taken different positions on this question. Applying current standards amounts to retroactively re-calibrating the offender's culpability. This essay argues that offenders should be judged by the standards prevailing when they took the decision to offend. A time-sensitive approach would apply the sentencing standards of the earlier time, yet also consider time-relevant mitigation and aggravation in the period since commission of the offense. The offender's conduct and the victim's suffering during the period are both relevant factors. Although the emphasis in this essay is upon proportional sentencing, on any model the offence and the offender should never be treated as a moment in time, caught like an insect in amber. The passage of time often changes our evaluation of the offense and the offender, and when this occurs the nature of the sentence should change. The analysis also extends to long-serving prisoners, whose sentences should be reviewed after years have passed in case they are no longer deemed proportionate.

Crime victims and victims’ advocates have for many years called for greater input into the criminal process, and in particular at the stage of sentencing. Today, victims in almost all common law countries have the opportunity to participate in the sentencing process, usually by providing information about the impact of the crime. This impact evidence is placed before a sentencing court in the form of a victim impact statement (VIS) or victim personal statement (VPS) as it is known in England and Wales. This article reviews findings from the last few years of data from the Witness and Victim Experience Survey (WAVES) which was conducted by the Ministry of Justice. We review findings from the last administrations of the survey. In the most recent administration of the survey (2009–2010), less than half (43%) of victims recalled being offered a statement. Over the most recent three-year period (2007–2010), a comparable percentage (42%) of the victims recalled being offered the opportunity to make a VPS; almost half (45%) explicitly responded that they had not been given an opportunity to make a VPS. In addition, significant variation emerged across local justice areas. The percentage of victims reporting having been offered a VPS varied from a low of 29 per cent in London to a high of 63 per cent in Northumbria – a range of 34 per cent. These and other findings suggest that the VPS scheme is being inconsistently implemented across the country.

Despite the guidance provided by appellate courts in recent years, certain evidentiary questions remain to be clarified by the courts. In this brief article, we comment upon recent (2010 to present) decisions from appellate courts in several provinces.

Victim participation in sentencing has become an important theme in the victims’ rights literature and continues to be the subject of much debate among academics, practitioners, courts, and the wider public. The debate about the role and effects of victim impact statements (VIS) and family impact statements continues in most common law jurisdictions. The responses to our initial article in this journal illustrate the importance and diversity of this debate across the world, within domestic and international legal orders. This article responds to the commentaries upon our original article. We continue to argue that the primary aim of ancillary harm should be to inform the courts on the seriousness of the crime in order to facilitate the determination of a more proportionate sentence. We do not support a victim-centred approach where sentencing decisions rest on victims’ suggestions and opinions. Further, we do not claim that compensation and therapy for victims should be the primary role of sentencing. Instead, our position rests on retributive grounds and proposes a balanced approach to sentencing where all relevant factors are considered, including ancillary harm as an aggravating factor. We acknowledge the importance of limits, namely on the content of VIS, the effect of ancillary harm, and the importance of its reasonable foreseeability as a criteria for considering the aggravating effect of ancillary harm.

The research we have reviewed has been generally favourable to the Victim Personal Statements (VPS) scheme. Although only a minority of victims submit a statement, of those who do, most of those who do appear to benefit from the experience, and express a desire to submit a statement in the future. At the same time, VPS do not seem to make sentencing harsher across the board, and their use is generally supported by legal professionals. Judges and magistrates in different jurisdictions report finding victim impact statements useful in determining sentence.

This article discusses the Quebec Court of Appeal decision in Cook that provides an unambiguous affirmation of the importance of victim impact evidence as a source of aggravation at sentencing. If followed in other jurisdictions, the decision will have a significant impact on the evolution of victim impact statements. To date, the victim impact statement has remained in a legal no man’s land, somewhere between an unsworn statement made by the victim, which may (or may not) be entered into the record and a form of evidence that can affect the quantum of punishment and hence the liberty interests of the defendant. This state of affairs is unsatisfactory for all concerned. In our view a victim impact statement serves a number of purposes, some expressive in nature. We discuss the concept of ancillary harm — inflicted on secondary crime victims — to demonstrate the utility of impact statements as a source of legally-relevant information at sentencing. We conclude that an impact statement is evidence that enables the court to reach a more accurate determination of the harm created by the offence. In this sense the use of victim impact evidence promotes the principle of proportionality at sentencing. This evidence is properly adduced at a separate penalty phase of the criminal process, namely the sentencing hearing.