Chapter 1: Principles and Purposes of Sentencing

1.1. Sentencing is critical to legitimising the rule of law and maintaining society’s
confidence in its justice system. It has to be effective to meet society’s
expectations and should be commensurate with the offence. Everyone has a
perception of what sentences should be and should do, but views vary widely.

1.2. In Northern Ireland there is no comprehensive statement of the principles and

purposes of sentencing. Instead, these are extrapolated from guideline cases;
the Court of Appeal’s sentencing guideline judgments;1 and the concept of
proportionality in the use of custodial sentences which runs through the Criminal
Justice (Northern Ireland) Order 2008.

1.3. Section 142 of the Criminal Justice Act 2003, which applies only in England and
Wales, sets out a more complete legislative statement of the purposes of
sentencing. It states:

‘Any court dealing with an offender in respect of his offence must have regard
to the following purposes of sentencing:

a) the punishment of offenders;

b) the reduction of crime (including its reduction by deterrence);
c) the reform and rehabilitation of offenders;
d) the protection of the public; and
e) the making of reparation by offenders to persons affected by their
offences.’

1.4. The Review considers that it would be desirable to have a clear understanding
of the principles and purposes of sentencing in Northern Ireland. Such an
understanding would:

o improve awareness, understanding and clarity in how sentencing decisions

are reached;

o provide a definitive benchmark of the qualities that all sentences should

incorporate and reflect; and

o ensure compliance with international obligations.

1The sentencing guideline judgments are published in an online Compendium by the Judicial Studies
Board at: https://judiciaryni.uk/sentencing-guidelines-northern-ireland
1.5. Our current ‘piecemeal’ approach impedes transparency and may contribute to
undermining public confidence in sentencing and the justice system. Improved
clarity could facilitate consistency in the sentencing process.

Principles of Sentencing
1.6. The judicial process recognises the unique nature of sentencing, taking account
of the individual circumstances in each case to produce sentences that are just
and appropriate. Recognising the importance of judicial discretion, sentencing
principles reflect established expectations, law and jurisprudence, providing an
inclusive framework within which sentencing decisions are made.

1.7. Principles are required to determine the punishment that can be justified in each
case and must be capable of equal application to every sentence passed. They
should remain constant to facilitate predictability and proportionality in the
sentencing process, ultimately contributing to society’s confidence in the justice
system.

1.8. Principles inform and guide the judiciary. As well as ensuring justice and
fairness, they provide transparency and the rationale behind sentencing
decisions. They should ensure that sentencing is not only fair but seen to be
fair.

1.9. On examination of principles of sentencing in place nationally and

internationally, a level of commonality is found in the type and nature of
principles recognised in many jurisdictions.

1.10. Although there are overlapping features, each principle is important in its own
right, reflecting a distinctive aspect of a just sentencing system. Based on these
considerations the Review proposes the following principles of sentencing.

Proportionality
1.11. Punishment should be proportionate to the seriousness of the offence and
reflect the degree of responsibility of the offender for it.

1.12. All jurisdictions reinforce the importance of this principle. It is also set out in the
Criminal Justice (Northern Ireland) Order 2008,2 which highlights the
importance of proportionality when considering the use of incarceration.

2 Criminal Justice (Northern Ireland) Order 2008, Articles 5 (2) and 7 (2):
http://www.legislation.gov.uk/nisi/2008/1216/part/2/chapter/2
Fairness
1.13. The concept of fairness is difficult to define precisely, but is central to what the
justice system seeks to achieve. The victim, offender, and society all desire
that sentencing is fair.

1.14. Fairness requires sentencing to respect the rights of victims, offenders and their
families. It ensures that the victim’s voice is heard; seeks to take account of
the personal circumstances of the offender; and provides for an appropriate
balance between these factors in the determination of a sentence.

1.15. Fairness should ensure that all people are treated equally without
discrimination, and that their treatment is human rights compliant.

Use Punishment Sparingly

1.16. The principle that punishment should be used sparingly reflects the increasing
understanding that harsher punishment does not necessarily help to address
offending behaviour. It reflects society’s move towards a more rehabilitative
and therapeutic approach rather than a punitive one.

1.17. This principle is supported by the findings of worldwide research,3 which

indicates that it is not the severity of punishment that contributes to deterring
offenders, rather it’s the certainty of punishment.

Transparency
1.18. Sentencing decisions should be taken openly and with reference to standards
and other principles applied by the courts. The principle of transparency
promotes clarity, consistency and predictability, and assists the public to
understand sentencing decisions.

1.19. The application of the principle, for example seen through publicly provided
judgments, can help to explain how a sentence was determined, thus
minimising the potential for criticism, which can arise from inaccessibility of
relevant information; and it can promote fairness.

Please see Consultation Questions: No. 1 - 2

3Wright, V. Deterrence in Criminal Justice: Evaluating Certainty vs. Severity of Punishment. 2010. The
Sentencing Project, Research and Advocacy for Reform.
Purposes of Sentencing
1.20. The purposes of sentencing can be considered to be the aims or desired
outcomes which a judge is seeking to achieve in discharging the law. In
determining the basis of a sentence the judge should ensure that the principles
of sentencing are reflected in the sentencing decision. Depending on the
specific circumstances of the offence, a sentence may have one or several
purposes.

1.21. Across many jurisdictions the purposes of sentencing involve meeting the
legitimate public desire to punish wrongdoing and to discourage the offender
and other members of the public from committing similar offences in the future.
In addition to securing redress and denunciation of the wrongdoing, sentencing
also seeks to: address the causes of offending behaviour; provide opportunity
for the offender to reform and make amends; and protect the public.

1.22. The Review proposes the following purposes of sentencing.

Punishment
1.23. Whichever option the court considers appropriate, a sentence is normally
intended as some form of penalty or loss to the offender.

1.24. Punishment also expresses the denunciation of the offender’s criminal

behaviour and represents retribution for society; it makes clear society’s
disapproval of the offender’s behaviour; and reinforces respect for the law and
for each other.

Protection of the Public

1.25. Sentencing has an important role in protecting the public by one or more of the
following: removing the offender from society, where necessary; deterring
others from offending; holding the offender to account through supervision in
the community; and taking actions to divert or otherwise prevent the offender
from reoffending.

1.26. This purpose takes into account the wider needs of society.

Deterrence
1.27. Sentencing aims to deter further offending by punishment and making the
consequences of criminal behaviour clear to individuals and society.
Rehabilitation
1.28. Rehabilitation can be defined as restoring a person to normal life. Its focus is
on changing an offender’s behaviour to prevent future offending and to reduce
crime.

1.29. Rehabilitated offenders acknowledge and move away from their offending
behaviour. Often this is achieved through therapeutic and practical support.

1.30. Research shows that rehabilitation is an effective way to reduce reoffending

(therefore reducing the number of victims) and also assists in the reintegration
of offenders into society.

Reparation
1.31. Reparation can help meet the needs of both the offender and victim, by
acknowledging the harm caused and allowing an opportunity to redress the
offence.

1.32. Reparation can engage restorative justice practice, providing the victim with a
greater voice and opportunity for a sense of closure, while at the same time,
importantly, providing offenders with the opportunity to make amends for the
harm caused and to give something back.

Please see Consultation Questions: No. 3 - 4

Prioritising Purposes
1.33. The Review has considered whether any of the purposes of sentencing should
be given more weight than the others. Following discussion during pre-
consultation engagement, the view was taken that prioritisation is not
appropriate, as it could unduly constrain the judiciary, possibly distorting the
balance and fairness sought by the principles of sentencing.

Merits of a Single Definition

1.34. A single, coherent definition of the principles and purposes of sentencing would
enhance sentencing policy. It would make clear the foundations upon which
every sentencing decision is built and, consequently, aid the wider public’s
appreciation of sentences imposed by the courts.

1.35. Research indicates that a single definition can help society to understand
variations that can arise when sentencing for broadly similar offences, and
informs the public on what is taken into account.
1.36. Having clarity around the principles and purposes that underline sentencing can
also make the process more transparent and support a consistent approach.
This, in turn, can improve understanding of the fairness and appropriateness of
sentences.

1.37. In summary, a clear articulation of the principles and purposes of sentencing

should:

o improve awareness, understanding and clarity in how sentencing

decisions are reached;

o facilitate consistency and predictability in the sentencing process; and

o reinforce public confidence regarding sentencing and the justice

system.

Maintaining the Principles and Purposes of Sentencing

1.38. A statement of the principles and purposes of sentencing could be set out in
legislation or embedded in a justice policy. The Review is conscious that
policies can change quickly and that policy language can be subject to gradual
evolution, with the potential to undermine the clarity which is sought.

1.39. In contrast, statutory definitions are generally more accessible, certain and
enduring. Placing a statement of purposes and principles in legislation would
ensure that the statement has maximum impact and is subject to the rigor
provided for through the legislative process.

Please see Consultation Question: No. 5