INTRODUCTION
Sentencing in any country is provided for serving the purpose of crime reduction and punishing the offenders. It is of immense importance that sentencing procedures in the countries are laid down in a manner that helps in the reduction of crime. The sentencing system in UK is governed by the Coroners and Justice Act, 2009 (“the Act”). The system provides for a guiding principle for the judiciary in order to ascertain the quantum of punishment as regards to the specific offence.
Recently, the Sentencing Council of UK has issued a new set of general guidelines in addition to the offence-specific guidelines. These general guidelines came into effect on October 1, 2019, and would apply to the organisations and the adult individuals above 18 years of age in cases of sentencing offences for which there exist no offence specific guidelines. The General Guidelines replaces the “seriousness” guidelines published by the Security Council. The General Guidelines are more subjective and provides for a structural approach to sentencing. As opposed to the seriousness guidelines, the new amendment provides for the expanded explanations with regard to the mitigating and aggravating factors. It also provides additional information relating to the imposition of fines.
The article provides an analysis on the General Guidelines, 2019 published by the Sentencing Council in the United Kingdom for providing a more structural and transparent approach towards sentencing of the offences not provided under the Act and for providing additional explanations and guidance with regards to the offences mentioned in the Act.
BACKGROUND
In English Courts more power was given to the Judges in cases of sentencing the offenders. In order to address this issue, the Sentencing Advisory Panel (SAP) was established in the year 1998 for advising the Criminal Division on the issues that ought to be addressed which primarily included –
- Need for limiting the judicial discretion in sentencing in such a manner that the discretion is limited to such extent that it is parlance with the common principles and standards.
- Formulation of the sentencing guidelines was the most suitable way for structuring the discretion exercised by the judiciary.
- The Court of Appeal alone was not equipped to frame the guidelines hence it required the expertise and participation of specialist experienced in the field of criminal justice system.[1]
Pursuant to such discussions, 5 years later, the Sentencing Guidelines Council (SGC) was established in consonance with Section 167 of the Criminal Justice Act, 2003. Both SGC and SAP worked simultaneously in drafting the guidelines wherein the SAP provided its advice and recommendations and the SGC issued guidelines taking into account the advice of SAP. However, because of the complicated and cumbersome structure of the two bodies, the Sentencing Commission Working Group (SCWG) reviewed the existing structure and simplified it by way of certain amendments the result of which led to the replacement of SAP and SGC with the Sentencing Council and the formation of the Coroners and Justice Act, 2009[2]. The new legislation created was incorporated with a view to promote effective development and dissemination of the definitive guidelines.
FEATURES
- Rigid and flexible nature: The guidelines are rigid in the sense that it constrains the courts from sentencing outside the specific range as laid down in the guidelines. However, the courts have the discretionary power to deviate from the specific range whenever required, in the interest of justice thus making it flexible.
- Comprehensive guidelines providing for offence-specific as well as generic guidelines: Apart from the offence-specific guidelines for punishment, the guidelines also provide for general guidelines where the specific offence is not mentioned and the factors that ought to be taken into account by the courts while sentencing the offender.
- Transparency: The guidelines provide transparency in the process of sentencing by inculcating provisions that ensure certainty in sentencing as regards to the offences committed by the offender.
OBJECTIVE FOR THE ENACTMENT
- To achieve uniformity
The guideline system in UK achieves uniformity in sentencing guidelines by providing for a series of steps[3] that ought to be followed by the courts when sentencing the offender, while it also grants discretion to the courts in cases of need.
- Proportionality of punishment/improving administration of criminal justice
The guidelines provide for the nature and the category of offence and the punishment for sentencing proportional to the offence committed depending upon the nature and seriousness of the offence.
- Promoting the confidence of public[4]
It promotes the confidence of the people as it provides definitive guidelines for the offence-specific punishment as well as the general guidelines where the offence is not specifically mentioned thus making the tenure of punishments more certain.
- Providing guidance to the courts
Apart from the offence-specific guidelines the general guidelines issued by the Sentencing Council helps in guiding the judiciary as to the factors and situations that ought to be taken into account and the quantum for sentencing in the presence of such factors.
ANALYSIS
Nature of Guidelines
The general guidelines issued by the Sentencing Council contains overarching principles that are in conjunction with the offence-specific guidelines. These guidelines are in addition to the offence-specific guidelines and its applicability would not only extend to sentencing for those offences where there is no offence-specific guideline for sentencing but also in cases of offence-specific guidelines. For example, in a case where an offence of money-laundering is committed by an organisation, then apart from the sentencing guidelines of money laundering, the general guidelines, if applicable can also be applied in conjunction with the offence-specific guidelines. A relevant example, in this case, would be the increase in sentence by the court in lieu of the applicability of the aggravating factor mentioned in the general guidelines of making financial gain from the commission of offence i.e. money-laundering in this case.
Structural Approach
These guidelines provide for a clear structure that is supposed to be followed by the Judges while determining sentences for the offences not specified under the guidelines laying down the determinative sentencing for the category of offences.
The structure provides for ten stages to be considered by the judiciary while determining the sentencing that is to be given to the offender.
The ten stages consist of:
1) Stage 1- Provisional Sentencing:
In cases where there is no offence-specific guideline, the general guidelines provides for a stepped approach that ought to be applied, wherever possible, to reach a provisional sentence. The approach takes into account the following and make the adjustments or differences accordingly for granting a fair punishment:
- the maximum and the minimum sentence provided for the offence,
- stare decisis of the courts of appeal,
- offence-specific sentencing guidelines for analogous offences.
Further, the gravity and the seriousness of the offence is to be calculated by assessing the culpability of the offender and the harm that is caused due to offending. While considering the above the courts should also take into account the purpose of sentencing as against the offence committed by the offender while determining the sentence.
2) Stage 2 – Aggravating and Mitigating Factors :
Aggravating and mitigating factors calls for the court to take into account all the circumstances that may help in determining the seriousness of the offence or reflecting the personal mitigation. The guidelines provides for fine ranges as well as the guidelines for the custodian and community sentencing along with the explanations of the circumstances and the factors that should be taking into account by the courts while determining the quantum of the fine and/or sentencing for the wrongdoer. Additionally, to make the sentencing guidelines more certain, the Sentencing Council also drafted a list of aggravating and mitigating factors according to their seriousness which shall help the court in inferring the proportional sentence.
3) Stage 3 talks about the consideration of the factors and the rules of law[5] in force that calls upon a reduction in sentence by virtue of the assistance provided to the prosecutor/investigator.
4) Stage 4 talks about the reduction in sentence for those pleading guilty in accordance with the offence-specific guideline on the reduction in sentence for guilty plea and Section 74 of the Code that provides provision for discounting sentences to those providing assistance to the prosecutor.
5) This stage deals with the dangerousness of the offence. The guidelines provide that if the offence committed is listed under Schedules 18, 19 and/or 19 of the Criminal Justice Act, 2003 then the courts should pay special attention to the criteria contained under Chapter 6, Part 10 of the Sentencing Act for imposing extended sentences under the provisions[6] of the Act.
6) Stage 6 calls for a special custodian sentence to be imposed by the court for the offenders of particular concern. According to this, in cases where the offence is enlisted in Schedule 13 of the Sentencing Act and the court does not provide life imprisonment or extension of the sentence, but imposes imprisonment, the term of the sentence must be equivalent to the aggregate custodial term and a further 1 year sentence as per Section 265 and Section 278[7] for which the offender is subjected to a licence.
7) Stage 7 deals with Totality Principle. According to this principle, where the offender is to be sentenced for more than one offence or where the offender is already serving a sentence then the total sentencing is to ascertained by the court in accordance with the Totality guidelines as well as the guideline for the offences taken into consideration so as to provide fair and proportionate punishment to the offender.
8) Stage 8 deals with the compensation and ancillary orders. According to this the courts need to consider which orders are to be passed considering the gravity of the offence committed. Further, it guides the courts by providing a list of offences and the passing of the relevant order in lieu of a specific offence committed by the offender. In case of serious offences like those involving firearm or offensive weapons the court should consider the provisions laid down under the Serious Crime Act, 2007 for imposing the Crime Prevention Order.
9) Stage 9 provides for the positive duty on the part of the courts to specify the reasoning for the sentencing imposed in accordance with Section 52 of the Act.
10) Stage 10 lays down that the courts must consider if credit is to be given to the offender in lieu of the time spent on bail on account of the provisions contained in the Criminal Justice Act[8] and the Sentencing Act[9].
IMPOSITION OF FINES
In order to remove any sort of economic benefit that may arise from the imposition of fine levied on the offender, the guidelines requires the courts to foresee all the financial records of the offender.
As per the guidelines, the court while deciding the fine to be levied on the offender, should pay regards to Section 164 of the Criminal Justice Act, 2003. According to Section 164, the fine should be proportional to the crime committed and should also reflect the seriousness of the offence committed. It should not be cheaper to offend than to comply with the law, that is to say that the fine should be determined fairly and in a proportionate manner so that it justifies the object of the punishment and deters the offender from committing such offences or gain any financial benefit in lieu of such commission of offence.
In cases where the fines are imposed on the organisations, the courts should ensure that the fine is proportional to the gravity of the offence and the quantum of fine should have a real deterrence effect on the shareholders to refrain from committing any act against the law. The fine imposed must be quantified in a manner so as to obligate the shareholders to comply with the provisions of law.
BINDING VALUE OF THE GUIDELINES
The wording of the sentencing guidelines in the Act is directive in nature. Section 59(1) of the Coroners and Justice Act, 2009 imposes a positive duty on the courts which must follow the sentencing range as enlisted in the guidelines while paying due regard that the justice is served.[10] Therefore, the guidelines focus the attention of the judiciary on the importance of guidelines, yet also allows the courts to exercise discretion to impose a fit sentence.
LEARNING FOR INDIA
Sentencing Guidelines in India
Sentencing guidelines in India are covered in IPC and the provisions of the Criminal Procedure Code. Criminal law procedures governing sentencing are laid down under Sections 235, 248, 325, 360, 361 of the Code which are scattered throughout the Code.
These provisions provide for broad powers to the Court. For Instance, in the case of an offence of murder, IPC provides for the punishment of life imprisonment or death along with the liability of fine. The guiding principle for determining the punishment was provided by the judiciary in Jagmohan Singh v. State of U.P.[11] wherein it was held that a balanced approach of considering the aggravating and mitigating factors should be considered while deciding on the question of capital punishment. However, in the other case[12], the judiciary stressed that the sentence of life imprisonment is granted for the offence of murder. The courts should depart from this rule only in cases of exceptional circumstances to serve the ends of justice. This approach was criticised in Sangeet v. State of Haryana[13], wherein the judiciary stated that the approach in Bacchan Singh case[14] has taken a backseat and needs a fresh review for determining the issue of weightage to be given to aggravating and mitigating factors surrounding the crime and the criminal.
There is no law or straightjacket formula for ascertaining the quantum of punishment with regards to sentencing in India. Though, the courts have stressed upon a number of principle that ought to be taken into account while sentencing the accused. The principle includes proportionality, deterrence, rehabilitation, etc[15]. However, the judiciary cannot be obliged to follow these principles as they are not absolute rules[16] thus giving wide powers to the judiciary for ascertaining the sentencing of an accused. Such wide powers often leads to the abuse of the process of law and to some extent conflicts with the separation of powers process.
NEED FOR SENTENCING IN INDIA
There is no uniform approach for sentencing in India. A trite law or guidelines that balances and specifies the consideration to be paid as to the aggravating, as well as the mitigating factors involved in the commission of a crime, would help the judiciary in giving the proportional punishment to the accused. Further, it will also be in parlance with the common law countries from where we have borrowed most of the laws.
- Uncertainty of sentencing: The punishment and sentencing for the offences is scattered under different provisions of IPC. The provisions provide for the minimum and/or maximum punishment for the offences. However, the gap between these two ranges gives ample discretion to the Judges for determining the punishment in cases where the sentencing range is available and wide discretion in cases where the range is not available for e.g. in cases of theft where no maximum punishment is laid down. It thus leads to uncertainty in the sentencing as some of the Judges are lenient while the others are harsh in their approach. Hence, there is no certainty or predictability in the quantum of punishment and sentencing that could be granted to the offender. The same was also recognised by Malimath Committee in the year 2003[17] which was reasserted by the Madhav Menon Committee suggesting the need for a statutory framework for sentencing guidelines in India[18].
- Because of the absence of any law regulating sentencing, India has seen a surge in appeals. One of the reasons for doing so is the wide discretion given to the Judges[19], therefore the party appealing is of the view that the Judge might have had a prejudiced view in pronouncing the judgment as regards to the aspect of sentencing.
- Affects the fundamental rights of the offender: Indian Constitution guarantees the right to equality to all the citizens. However, in the absence of sentencing guidelines, the Judges may pass judgments where in the case of similar facts the consequences might differ thus affecting the offender’s right to equality which guarantees that all are treated equally before the law as well as the right to speedy trial guaranteed under Article 21 of the Constitution as the appeal in surge of seeking remedy from the higher courts often results in piling up of the cases of appeal till the actual date of hearing.
Therefore, a proper system for sentencing guidelines will help in ensuring consistency and provision of justice thus promoting public’s confidence on the legislature and judiciary.
Takeaway from UK: Author’s suggestions
After analysing the General Guidelines published by the Securities Council the author is of the view that India could utilise certain positive pointers from these guidelines in improving the sentencing system and the criminal legislation in India.
- Compilation of the sentencing procedures contained in CrPC into one chapter
The Code of Criminal Procedure, 1973, does not contain any specific chapter on sentencing. The procedure relating to sentencing is scattered under different provisions contained in the Code which includes 484 sections, 2 Schedules and 56 Forms. It would be beneficial if all the provisions are collected in a single chapter similar to Part 4 as provided under the Coroners and Justice Act.
- Preparation of General Guidelines in conjunction with the offences and penalties already laid down under IPC and CrPC
The Indian legislation system can borrow some of the provisions as contained under the General Guidelines, 2019 issued by the Sentencing Council as per the needs of the society in India. The centralised guidelines would help the judiciary in the determination of the sentencing punishment for those offences where there is no range limit provided for sentencing.
- Preparation of a Table for certain offences as against the commission of offence
The General Guidelines as stated above should be accompanied with the table containing the list of offences along with three columns each containing the range of minimum and maximum fine as well as the sentencing punishment that can be levied on the offender.
The preparation of the offence-specific table should be made by a special committee chaired by a person specialised in criminal law taking into account the precedents relating to the sentencing, the seriousness of the offence committed, aggravating and mitigating factors involved in the commissioning of the offence.
- Appointment of a Committee on a permanent basis
One of the most interesting feature that could be noticed in the Coroners and Justice Act is the establishment of the Sentencing Council which is offered with multiple responsibilities including the introduction of new guidelines, checking if the guidelines are meeting the purpose for which they were enacted, etc. Similarly, India could establish an ad hoc committee as discussed in the earlier point on a permanent basis which could be entrusted with the tasks similar to those like the Sentencing Council.
CONCLUSION
Thus it can be concluded that the guideline system in UK provides for a foolproof system of sentencing for guiding the courts in determining the punishment to be granted to the offender. Such guidelines, if implemented in India will prove to be very useful, as till date, the courts have to rely on precedents which also differ depending on the discretion of the Judge and the presence of other aggravating and mitigating factors surrounding the offence.
Further, in the absence of the provisions for a specific offence there exists no general guidelines in our legislative system for adopting of a uniform approach in sentencing the offender. Therefore, in light of the above analysis and suggestions, the author concludes that a hybrid system of sentencing in India is the need of the hour and the existing sentencing guidelines in UK should be appreciated in the formation of the sentencing guidelines in India as the approach followed in UK is more accustomed to the Indian society and the legislations in India are increasingly premised on the laws borrowed from the common law countries.
*5th Year, BBA LLB (Hons.), Symbiosis Law School, Pune.
[1] Andrew Ashworth, Techniques for Reducing Sentence Disparity in Principled Sentencing: Readings on Theory and Policy (Andrew von Hirsch, Andrew Ashworth & Julian V Roberts eds) (Hart Publishing, 3rd Edn., 2009) at pp. 243 and 244.
[2] Julian V. Roberts, Sentencing Guidelines in England and Wales: Recent Developments and Emerging Issues (2013) 76(1) Law and Contemporary Problems 1 at 3.
[3] Section 125, Coroners and Justice Act, 2009
[4] Mike Hough and Jessica Jacobson, Creating a Sentencing Commission for England and Wales: An Opportunity to Address the Prisons Crisis, (2008).
[5] Sentencing Act, 2020. §74
[6] Sentencing Act, 2020. §226, §279,§283, §273.
[7] Sentencing Act, 2020.
[8] Criminal Justice Act, 2003, §240A.
[9] Sentencing Act, 2020, §325.
[10] Pina-Sánchez, J. and R. Linacre, Enhancing Consistency in Sentencing: Exploring the Effects of Guidelines in England and Wales, Journal of Quantitative Criminology 30, No. 4 (2014): 731-48. (Accessed on December 7, 2020) http://elibrary.symlaw.ac.in:2085/stable/43552012.
[11] Jagmohan Singh v. State of U.P., (1973) 1 SCC 20
[12] Bachan Singh v. State of Punjab, (1980) 2 SCC 684, ¶165
[13] Sangeet v. State of Haryana, (2013) 2 SCC 452, ¶29, ¶ 52-54.
[14] Bachan Singh v. State of Punjab, (1980) 2 SCC 684
[15] Soman v. State of Kerala, (2013) 11 SCC 382¶13;
State of M.P v. Bablu Natt, (2009) 2 SCC 272, ¶ 13.
[16] Rajendra Prahladrao Wasnik v. State of Maharashtra, (2019) 12 SCC 460, ¶ 5.
[17]Government of India, Ministry of Home Affairs, Committee on Reforms of Criminal Justice System (March 2003)
[18] Report of the Committee on Draft National Policy on Criminal Justice (July 2007)
[19] Jagmohan Singh v. State of Uttar Pradesh, (1973) 1 SCC 20
