Committee of Ministers: Explanatory Memorandum to Recommendation No. R (92)17 Consistency in sentencing




to Recommendation No. R (92) 17
of the Committee of Ministers to member states
Consistency in sentencing

(adopted by the Committee of Ministers on 19 October 1992
at the 482nd meeting of the Ministers' Deputies)


Preamble and commentary 

I.  Introduction 

1.         The Council of Europe has previously interested itself in questions regarding factors which influence the sentencing of offenders, sometimes in such a way that scientific researchers have been able to distinguish cases where unwarranted disparity in sentencing was found. A sub-committee of the European Committee on Crime Problems (CDPC) studied sentencing nearly twenty years ago and drafted a report which was published in 1974 (Sentencing, CDPC, Strasbourg, 1974). 

2.         The Eighth Criminological Colloquium of the Council of Europe in 1987 considered the topic “Disparities in sentencing: causes and solutions”. The colloquium, which heard three reports on inequalities in sentencing, backgrounds of disparity in the administration of criminal law and techniques for reducing subjective disparity in sentencing as well as a general report, recommended  “setting up a working group to examine and make recommendations regarding: 

  matters of education and empirical research relating to sentencing, including primary legal education and the dissemination and exchange of information among judges; 

  the identification of general sentencing principles, including the examination of relevant and irrelevant factors in sentencing; 

  the systematisation of sentencing decisions”. 

(see Collected Studies in Criminological Research, Volume XXVI, CDPC, Strasbourg, 1989) 

3.            Following this initiative, the setting up of the Select Committee of Experts on Sentencing (PC-R-SN) was proposed by the CDPC at its 37th Plenary Session in June 1988 and authorised by the Committee of Ministers in December 1988. 

4.         The PC-R-SN's terms of reference were to examine, in the light of the conclusions of the colloquium, the results of empirical research relating to sentencing, the drawing up of general sentencing principles which would enable the development of a coherent and consistent sentencing policy in Europe with the co-operation of the judiciary, taking into account the freedom of appreciation of the judge and to study the legal education of judges including initial education and the dissemination and exchange of information among judges and other concerned persons. The PC-R-SN should make recommendations relating to these matters. 

5.         The PC-R-SN was initially composed of experts from twelve Council of Europe member states (Cyprus, France, Federal Republic of Germany, Greece, Iceland, Malta, the Netherlands, Portugal, Spain, Sweden, Turkey and the United Kingdom). Finland was designated as observer initially and became a member of the committee following its accession to the Council of Europe in May 1989. Hungary joined the committee following its accession to the Council of Europe in November 1990. Canada and the United States of America, as well as the International Association of Penal Law, the International Penal and Penitentiary Foundation and the Society for the Reform of Criminal Law, were represented by observers. Professor A. Ashworth (the United Kingdom) was elected Chairman of the select committee. In addition, two scientific experts assisted the committee at different stages of its proceedings: Professor N. Jareborg (Sweden) and Mr B. Aubusson de Cavarlay (France). The secretariat was provided by the Directorate of Legal Affairs of the Council of Europe. 

6.         The PC-R-SN held seven meetings between June 1989 and March 1992. A preliminary draft recommendation which it prepared during these meetings, inter alia on the basis of answers to a questionnaire[1] sent out to the heads of delegations to the CDPC, was initially discussed by the CDPC at its 40th plenary session in June 1991. In addition, the preliminary draft was made available to the informal meeting of the Ministers of Justice which was held in Ottawa in June 1991. Following these discussions, the PC-R-SN met in December 1991 to revise its recommendations and, in March 1992, to finalise the draft recommendation and the explanatory memorandum. The CDPC approved the text of the draft recommendation at its 41st plenary session in June 1992 and transmitted it to the Committee of Ministers which adopted the text at the 482nd meeting of its Deputies on 19 October 1992. This recommendation, together with the explanatory memorandum, is the first report of a larger study which has been undertaken by the Council of Europe on “the efficiency and fairness of criminal justice”. 

II. General considerations (Commentary on the preamble) 

7.            Questions of sentencing have become increasingly important during recent years, not only within the Council of Europe but also within other international forums and among legislators. The meeting of the Commonwealth Law Ministers in April 1990 studied consistency in sentencing on the basis of a paper prepared by members of the Society for the Reform of Criminal Law (Commonwealth Secretariat, LMM (90) 6, London, 1990). Sentencing was also studied within the framework of the United Nations during the Eighth Congress on the Prevention of Crime and the Treatment of Offenders in Havana, August 1990. The meeting of Ministers of Justice in Ottawa in June 1991 has already been mentioned. 

8.         There is considerable evidence of a number of disparities in sentencing in the member states of the Council of Europe, as well as in other countries. The survey conducted for the Eighth Criminological Colloquium suggested that unwarranted disparity is a significant problem, both in appearance and in reality, and the committee quickly came to agree on this. “Unwarranted disparity” refers to differences in sentencing which result from variable approaches which do not form part of the (professed) sentencing policy of the jurisdiction – for example, variations stemming from personal views, local or regional traditions which are perpetuated without being justified, or variations influenced by the mass media. The significance of unwarranted disparity derives not only from the social importance of the sentences imposed by the courts, but also from the impact of some (especially, custodial) sentences on defendants. The committee recognises but would not wish to overestimate the contribution of particular sentences or sentencing policies to the goal of general prevention: sentencing is one of several contributors to this goal, along with education, social policies, crime prevention strategies, etc. It is also important that sentences should be accepted as fair and consistent. Like cases should be treated alike, and different cases differently, so long as the the differences are carefully justified. This will help to ensure justice for defendants and for victims. It will also assist in strengthening public confidence in the criminal justice system: although public concern about disparities in sentencing is sometimes based on imperfect or incomplete information, there are certainly instances in which the concern is well founded. 

However, the committee was aware that disparity in sentencing is not always unwarranted. For reasons of superior value, disparity might be an unvoidable result of change in the process of developing new, more appropriate sentencing patterns. In Germany for instance, a recent decrease in custodial sentences, especially for young persons, was brought about by the judiciary, mainly of the first instance courts, without any intervention of the legislator and without guidance by the appeal courts. Judicial innovation means that some courts have to pioneer; and this implies, at least temporarily, disparity. 

9.         An increasing number of countries have recently considered changes in their legislation, or have actually adopted new laws on sentencing. Major sentencing reforms have occurred in Austria, Finland, Sweden, Turkey and the United Kingdom. Proposals for change are being considered in France, Ireland, Portugal and Spain. Sentencing reform was carried out in Finland in 1976 where provisions concerning recidivism were replaced by a completely new set of rules on sentencing which emphasise proportionality. In order to achieve consistency, the act further requires that in sentencing special attention should be paid to the uniformity of sentencing practice. Comprehensive legislation on sentencing was enacted in Sweden on 1 January 1989. According to Chapter 29, paragraph 1, of the Criminal Code, the punishment shall be imposed within the statutory limits according to the “penal value” of the crime or crimes, and the interest of uniformity in sentencing shall be taken into consideration. The “penal value” is determined with special regard to the harm, offence or risk which the conduct involved, what the accused realised or should have realised about it and the intentions and motives of the accused. A number of circumstances are enumerated which may enhance or diminish the “penal value”. In England and Wales, the Criminal Justice Act of 1991 (United Kingdom) introduces “the seriousness of the offence” as the precondition for imposing custodial sentences and some new “demanding” community sentences. In France, where a comprehensive criminal law reform is being carried out at present, day fines and community sanctions will be introduced, thus making imprisonment one sanction among others. Where an unconditional prison sentence is pronounced, special reasons must be given. The possibilities of deciding on the conditions of the execution of the penalty (in French, aménagement de la peine) are being enlarged. German law provides for a priority of fines over (suspended or unsuspended) prison sentences of under six months. In addition, suspended prison sentences take priority over custodial sentences of up to one year. Departure from these priorities is restricted to reasons that are defined in the law. In Greece, article 82 of the Penal Code provides that the court shall convert all custodial sentences of up to six months into pecuniary penalties, unless it decides by special justification that the execution of the custodial sentence is necessary to deter the convicted person from committing further offences. Sentences of over six months and up to two years may be converted in a similar way, but the court shall justify why the execution of the custodial sentence is not necessary. Sentences of up to six months may also, at the request of or with the consent of the convicted person, be converted into community service. In Turkey (Article 29 of the Criminal Code) a number of factors are mentioned specifically which the judge needs to take into account (for instance, seriousness of damage or danger, reasons for the commission of the offence, past conduct of the offender, etc.). Due to the recent changes in Central and Eastern Europe, a number of countries have changed their legislation on sentencing. In Hungary, the death penalty was declared unconstitutional in 1990 and the Hungarian Parliament is presently considering proposals to introduce community service and widening the possibilities of using probation. 

10.       The committee has been encouraged in its work by the terms of draft Resolution VIII of the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (Havana, 1990), which recommends inter alia the establishment and implementation of “fair and coherent sentencing policies”. In further recommending that “imprisonment should be used as a sanction of last resort”, that resolution has also reinforced the committee's view that special attention should be paid to disparities in custodial sentences. It is not that the burdens imposed by non-custodial sentences are insignificant: indeed, the development of new community-based measures in several member states has led the committee to devote attention to those sentences too. But it is widely recognised that sentences entailing the deprivation of liberty require the greatest justification, and so the most strenuous efforts should be made to reduce disparities in that sphere. There is no reason why greater consistency should lead to increased severity in sentencing, so long as the principle of restraint in the use of custody is respected. 

11.       In examining methods of improving the consistency and coherence of sentencing, the committee was constantly mindful of the principle of the independence of the judiciary. It studied at length the approaches of different member states, and other countries, to the task of increasing consistency whilst preserving judicial independence. Its recommendations might be reduced to five key principles: 

i. each state should seek to define rationales for sentencing. If more than one rationale is declared, states should endeavour to develop a coherent set of sentencing rationales; 

ii. sentences in individual cases should not be disproportionate to the seriousness of the offence; 

iii. states should consider, within their legal and constitutional traditions, the introduction of techniques of orientation which structure the exercise of sentencing discretion whilst enabling the court to take account of particular circumstances; 

iv. there should be proper procedural safeguards in sentencing; 

v. there should be increased information for judges, clearly presented and soundly based on research, with greater opportunities for judicial training and for European exchanges of information. 

The committee's detailed recommendations follow these general principles and seek to apply them to the main issues (such as aggravation and mitigation, previous convictions, multiple offenders, etc.) which arise in the practice of sentencing. The context of sentencing has also been borne in mind: whilst the committee has not gone so far as to make recommendations on such matters as victim compensation, parole or conditional release, their relevance to sentencing has not been neglected. Some recommendations on the role of the prosecutor have been included, because of the, sometimes, great influence of prosecutors on sentencing. 

12.            Whatever rationale(s) of sentencing may be declared, account must be taken of principles of justice which require procedural fairness and substantive fairness. There are strong analogies here with provisions in the Convention for the Protection of Human Rights and Fundamental Freedoms. Thus article 3 prohibits “inhuman or degrading treatment or punishment”; article 5 restricts the conditions under which a person may be deprived of liberty, and requires procedures for testing the lawfulness of detention; and article 6 sets out the minimum procedural rights, and requires a fair and public hearing. Thus, for example, it would be wrong if aggravating factors were taken into account in sentencing without proper procedures for proof. A sentence which is out of proportion to the seriousness of the offence, although within the statutory maximum, might be regarded as unfair to the individual offender. 

13.       These considerations, along with the evidence of unwarranted disparity, led the committee to examine various methods of introducing further and more detailed orientations of sentencing. In most member states there is little guidance available to courts, apart from the legislative maximum sentences (and sometimes minimum sentences). Yet orientations could make a considerable contribution to the reduction of disparity, and, being only orientations, they would not prevent a court from taking account of the varying circumstances of offences and the varying personal situations of offenders. This point is of particular importance. The Council of Europe has paid special attention to rehabilitation and the personal situation of the offender, see for instance Resolution (76) 10 on certain alternative penal measures to imprisonment and Recommendation No. R (84) 10 on the criminal record and the rehabilitation of convicted persons. 

The committee did not advocate “guideline systems” of the kind which operate in some jurisdictions in the United States of America. Instead, it favoured the development of other techniques more appropriate to European legal traditions. Consistency of approach is the goal, rather than the arithmetical consistency of outcomes. 

14.       The committee, which comprised several judges, sought to make practical proposals for increased consistency in sentencing whilst respecting the fundamental principle of the independence of the judiciary. These proposals suggest approaches which will be new to some member states; they are elaborated in the appendix. Conscious of the differing constitutional principles and legal traditions of member states, the committee concluded that the best course would be to recommend that member states take appropriate measures to promote the principles and recommendations set out in the appendix, where the details will be found. This should enable each member state to take steps to avoid unwarranted disparity in sentencing, within the framework most suitable to its constitution, legislature and judiciary. 

III. Commentary on the recommendations in the appendix  

A.  Rationales for sentencing 

1.         The committee discussed at length the various rationales for sentencing, such as deterrence, rehabilitation and resocialisation, individualisation, retribution and “just deserts”, and incapacitation as a protective measure. The conclusion was that, if there is to be consistency of approach to sentencing within a member state, the rationales for sentencing should be expressed so as not to leave great uncertainty or conflict about the rationale which is to apply in particular cases. There was doubt as to whether there could be a consistent approach to sentencing in a system which, for example, allowed courts to choose to base their sentence on any one of the rationales mentioned above. On the other hand, this does not mean that the best course would be for each state to proclaim only one rationale of sentencing: the possibility of two or more rationales is discussed in paragraphs A.2 and A.3 below. In the committee's view, one fundamental step towards greater consistency in sentencing would be for the legislature or other competent authority in each member state, in so far as its constitutional principles and legal traditions allow, to declare the rationales for sentencing in that country. 

2.         Many member states take the view that two or more rationales are relevant to sentencing. If courts are allowed to choose freely between two or more rationales, this would inevitably produce inconsistency at a basic level. Thus, where two or more sentencing rationales are to be recognised, the law should attempt to indicate how to resolve any conflict between them. For example, if both retribution (proportionality) and rehabilitation were declared as rationales for sentencing, there should be a clear indication of the approach to be taken when they conflict. Such a conflict arises, for instance, where the court is informed that a successful course of treatment would take two years, but this would be a disproportionate deprivation of liberty for the offence committed. A similar conflict arises when a long prison sentence would correspond with the seriousness of the offence while concrete needs of medical or social rehabilitation militate against a long incarceration. 

3.         A different way of trying to ensure maximum consistency whilst allowing recourse to different rationales for sentencing is for the law to indicate the types of case in which courts might (or should) deviate from a declared rationale. Examples might be drawn from the Swedish and English sentencing systems, both of which declare proportionality (“just deserts”) to be the primary rationale. Swedish law makes special provision for courts to pursue the rationale of rehabilitation when choosing between probation and conditional sentence; English law makes special provision for courts to pursue the rationale of incapacitation when sentencing certain offenders for sexual or violent offences. By such methods, it is possible to recognise a primary rationale and to delineate spheres of operation for other rationales which are thought to have a place, thereby enhancing consistency of approach. 

4.         There is one overall limit which should be respected, whatever other rationale or rationales of sentencing may be declared. This is the limit set by the principle of proportionality between the seriousness of the particular offence and the severity of the sentence imposed. It is a principle of justice that individuals should not be subjected to sentences of a severity which exceeds the limit of proportionality on the facts of the offence or offences of which they stand convicted. Any injustice has its greatest impact where custodial sentences are involved. It may occur, for example, in member states which have broadly defined offences with high maximum penalties (see recommendation in paragraph B.2, below). Whatever the principles and policies of the legal system, this limit should be respected. 

5.         The committee remained conscious throughout its deliberations of the need for constant reappraisal of the rationales and policies to be pursued in sentencing. Principles which are established at one stage in history should be re-examined from time to time, in the light of new criminological knowledge and developments in moral and social thought. Moreover, the goal of establishing uniform rationales and priorities at a European level should be kept firmly in view.  Some member states have reviewed sentencing policy in recent years, whereas in others the formal principles have existed without serious examination for a long time. In particular, the level of severity in sentencing practice should be reconsidered from time to time. A particular cause for concern is sentencing policies involving long custodial sentences and sentences of life imprisonment. These should be reviewed with a view to determining whether they involve undue severity. 

6.         It is not just the rationales of sentencing but also other relevant policies which require constant reappraisal. When the principle of restraint in the use of custody (see below, paragraph B.5) is adopted, attention should be given to the overall level of severity of sentences imposed in pursuance of such rationales as proportionality, deterrence or incapacitation. Each of them can be pursued with different degrees of severity: if the principle of restraint in the use of custody is taken seriously, each member state should ask itself whether the existing level of sentences is necessary and whether some reduction in the level could not be made. In particular, the Council of Europe promotes the wider use of community sanctions and measures, as is evidenced by the European Rules on Community Sanctions and Measures (1992). Similarly, the policy of decriminalisation of minor offences was recommended by the report on decriminalisation in 1980 and was also adopted in paragraph II.a of Recommendation No. R (87) 18 on the simplification of criminal justice. This remains relevant to sentencing policy.  Another principle to which the Council of Europe has given prominence in recent years is the principle that offenders should, where possible, compensate their victims: Recommendation No. R (85) 11, paragraph 9, on the position of the victim in the framework of criminal law and procedure. Member states should ensure that this principle receives recognition within the sentencing system and, in particular, that it is made possible to solve conflicts between the compensation principle and declared rationales of sentencing – for example where the offender has insufficient money to pay both compensation and a fine. It will also be recalled that the explanatory memorandum to Recommendation No. R (85) 11 insisted that, although the offender's willingness to make reparation may be relevant to sentencing, this should not operate to the benefit of well-off offenders who can easily pay compensation.  In some member states, there have been developments in victim-offender mediation. The details of these schemes vary, but they usually invite the victim to participate in discussions with the offender, either face to face or through an intermediary, and may result in an apology or a promise of reparation. Such schemes offer possible benefits for victims and for offenders and, whilst there has been no thorough evaluation of their effects, they may also be an important means for reducing the use of criminal sanctions, as well as a practical way of providing the victim with compensation. 

7.         If the rationales of sentencing are declared by law and applied conscientiously, there should be little scope for sentences based on discriminatory opinions. However, the principle of non-discrimination is so fundamental that there are good reasons – both to remind judges and to provide a public declaration of the principle – for the specific recommendation that sentences must not discriminate against particular offenders on account of race, colour, gender, nationality, social status, religion or political belief. It is accepted that courts may wish to take account of the circumstances of the offence and the character of the offender when they are deciding upon sentence, but this process should not result in factors such as unemployment, or the cultural or social conditions of the offender, being regarded as factors which may increase the severity of the sentence. Thus, for example, where resocialisation is regarded as a primary rationale for sentencing, it would be discriminatory if sentences involving greater restrictions on liberty were imposed on offenders simply because they were unemployed. 

8.         As the judges on the committee were well aware, similar sentences may have a substantially different impact on certain offenders. It is therefore important to provide that unusual hardship should be taken into account where it appears that a penalty will have an untypical impact on a particular offender, and may perhaps impair rehabilitation. This will apply, for instance, to the old, the sick, the very young, etc. 

9.         The committee felt especially anxious about the effect of delays on sentencing. These delays may stem from a variety of causes, and sometimes from the defendant. They make the task of sentencing more difficult, especially where the offender is young and may have altered in character between the time of the offence and the time of sentence. The true principle is that cases should be brought to court without any undue delay, taking account of the complexity of the case, although not so quickly as to prevent the proper preparation of the defence. The principle is declared in Article 6 of the European Convention on Human Rights, and it was re-emphasised in the Committee of Ministers' Recommendation No. R (87) 18 on the simplification of criminal justice. Where in practice undue delays do occur, and to the extent that they are not caused by the defendant, courts should take account of them in sentencing. 

B.  Penalty structures 

1.         In all member states the basic structure for sentencing is established by the legislature, by assigning maximum penalties to offences. Some member states have gone further, and have also laid down minimum sentences for some offences. If consistency in sentencing is to be achieved, it is essential that at least the maximum sentences for all offences should be reviewed from time to time, so as to ensure that they form a coherent structure. If there are no frequent reviews, there is a great risk that the maximum penalties laid down by the legislature will become irrelevant to practical sentencing and will leave the courts without an indication of the relative seriousness of offences. That could create inconsistencies between courts. 

2.         For some offences in some states, however, the relationship between maximum penalties and everyday sentencing decisions is rather remote. This is likely to happen where the legislature has approved a high maximum penalty, in order to allow for the worst possible cases, and yet the great majority of cases are much less serious. The result is that the maximum penalty bears no relationship to most cases and is therefore not informative either to courts or to citizens. Sentencing is uninfluenced by the maximum penalty. It would be preferable to have offences of this kind divided into two or more grades, each with separate maximum penalties, in order to enhance consistency and intelligibility.  Where minimum sentences exist, the committee was concerned that they might achieve a kind of arithmetical consistency of sentencing, without promoting the true consistency of treating like cases alike and unalike cases differently. In other words, minimum sentences might require courts to ignore certain factors in individual cases which indicate, for example, significantly reduced culpability. For this reason it is recommended that, where a member state does have a minimum penalty for an offence, this should nevertheless not prevent the court from reducing the sentence below the minimum in special circumstances. 

3.         Even where maximum sentences are not so high as to be of little relevance to everyday sentencing, and even where a state has, for example, graded offences of theft into two or more degrees of seriousness with different maximum penalties, there will inevitably be a considerable variety of possible sentences for each offence. Legislation often leaves wide discretion to the courts, beneath the maximum penalty. Having given consideration to some of the sentencing systems in the United States, which attempt to remove or severely curtail judicial discretion, the committee concluded that it is important to ensure that courts have in most cases a significant degree of discretion at the sentencing stage – the qualification “in most cases” recognising that almost all member states have a mandatory sentence for murder and perhaps for a few other heinous offences. Apart from those offences, the court should generally be allowed to vary the sentence, beneath the legislative maximum, so as to reflect the aggravating or mitigating factors in the individual case.  If consistency in sentencing is to be enhanced, however, there are strong arguments for providing some kind of indicators for judges. The aim would be to ensure that, in similar types of case, sentencers approach their task on the same basis. In its early discussion the committee used the word “guidelines” to describe a possible method of structuring judicial discretion, but this term was abandoned because it was too frequently assumed that it referred to the rigid sentencing systems in the United States.   For European purposes, the committee concluded that two possible methods might be particularly useful. One is the idea of what might be called “sentencing orientations”, the term being chosen so as to make it clear that orientations merely guide judges towards a common approach and do not compel particular sentences. A typical set of sentencing orientations might indicate, for example, that for a particular offence those cases with certain aggravating features would normally fall within a range from one to two years' imprisonment, whereas other varieties of the offence would normally receive three to twelve months' imprisonment. The orientations might also indicate some of the other aggravating and mitigating factors relevant to the particular offence. The judge would retain the discretion to take account of the particular combination of facts in each case. The orientations would constitute guidance only.  A second technique for structuring judicial discretion is a set of “starting-points”. Several judges mentioned that, in practice, there are normal sentences for typical cases, and the idea of “starting-points” is similar. For example, the starting-point for sentencing a case, of robbery might be x, for robbery of amounts over a certain financial limit it would be x + 1, and for robbery with firearms x + 2; the guidance might then indicate further aggravating or mitigating factors which the court might use to move upwards or downwards from the relevant starting-point. Once again, these are starting-points and not finishing-points: they are designed to ensure consistency of approach, whilst allowing courts to reflect the particular combination of factors in each case. 

4.         The recommendations in favour of reviewing legislative maximum sentences (paragraphs B.1 and B.2) should provide clearer parameters for sentencing. In view of the fact that most practical sentencing takes place beneath the maxima, it is also desirable to foster consistency through the structuring of judicial discretion. Two principal methods have just been described, sentencing orientations and starting-points. Member states may consider introducing one or the other into their sentencing system, perhaps only for a few offences in the first place. Certain frequently committed offences might be suitable. This “gradualist” approach would enable the jurisdiction to learn from its experience, and to develop orientations or starting points in the most appropriate form.  The form in which they might appropriately be introduced will depend on the constitution or the particular legal tradition. In England, where such guidance exists for a few offences, some orientations (“guidelines”) have been constructed by the Court of Appeal judges and are contained in the judgments on particular sentencing appeals. They acquire their authority through the system of binding judicial precedents. In many member states judicial decisions do not have binding force, but there may be other possible ways of developing guidance. Legislation would be one approach, although it may prove too rigid in the early stages of development. In some member states a ministry circular would be an appropriate method for promulgating orientations or starting-points, whereas in many other states such circulars have no authority. In some states an effective approach would be to direct the guidance to prosecutors. A further approach might be to create an independent commission for the purpose of developing and formulating such guidance. In the committee's view, it is more important that the orientations or starting points should be accepted and applied in practice than given any particular dignified form. 

5.         One particular sphere of sentencing in which legislative intervention might be appropriate is the imposition of custodial sentences. Consistency here is a matter of people's liberty, and the committee had in mind the Council of Europe's declared policy of encouraging the use of non-custodial sanctions and, correspondingly, reserving custodial sentences for the most serious group of offences: Committee of Ministers' Resolution (76) 10 on alternative penal measures to imprisonment. Indeed, many of the states represented on the committee have already taken steps towards a policy of restraint in the use of imprisonment. There was complete agreement with the principle stated in Draft Resolution VIII of the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (1990), paragraph 5.e, that “imprisonment should be used as a sanction of last resort”. It was thought advisable, however, to adopt a more specific statement of the policy: this would aim to ensure that a custodial sentence is imposed only where, on account of the seriousness of the offence and the circumstances in which it was committed, any other sentence would clearly be inadequate. This would create a “hurdle” or “barrier”, over which the court must pass in each case in which it intends to impose custody. There should also be a second aspect to the policy: even when the court is satisfied that no sentence other than custody would be adequate for the case, the sentence should then be no longer than is appropriate to the offence or offences of which the person is convicted.  In view of the clear adoption by the Council of Europe of the policy of restraint in the use of imprisonment, this might be a topic suitable for legislative restrictions on sentencers. But, whatever the method used to implement the policy, it should be linked with more detailed guidance for judges. In order to ensure consistent answers to the question, “Which varieties of offence are too serious for non-custodial sanctions?”, consideration should be given to the development of criteria. Certain points might be settled without great difficulty, as, for example, custodial sentences which are rarely required for offences involving only financial loss below a certain amount, unless there is also abuse of a position of trust or another aggravating factor. Other criteria might have to be developed in the light of experience. These criteria might then be integrated into the orientations or starting-points discussed in paragraph B.4 above.  Another approach which the committee thought worthwhile was that member states should reconsider their conventional approach when simply setting a maximum penalty, particularly when introducing a new offence. An alternative might be for the new law both to set a maximum penalty and to indicate a presumption in favour of non-custodial sentences for the offence, where that is appropriate. This would reduce the extent to which formal laws tend to refer only to imprisonment, and might make some contribution to greater consistency and reduced use of custody. 

6.         The majority of sentences imposed by the courts in most member states are non-custodial, and in recent years efforts have been made nationally and internationally to encourage the development and use of community sanctions and measures as well as other non-custodial sentences. The results have not always been an unqualified success. When a new community-based measure is introduced as an “alternative to custody”, there is sometimes a tendency for courts to use it as an alternative to other non-custodial measures on some occasions: in other words, rather than being a constructive alternative for people who would otherwise have been sent to prison, the new sentence also becomes a more demanding alternative for offenders who would otherwise have received another non-custodial sentence. This is what is sometimes called the net-widening effect, and steps should be taken to avoid this danger when introducing new non-custodial sanctions.   The committee was conscious of the importance of allowing courts to individualise sentences, but consistency of approach will not be achieved unless the various non-custodial penalties (as well as the lengths of custodial sentences) can be related to the seriousness of the offence and the circumstances in which it was committed. It is therefore desirable that member states should consider the grading of their non-custodial sentences in terms of relative severity. This is not a straightforward task, because there are some sanctions which vary considerably in severity within themselves (for example, a fine may be high or low, a community service order may be long or short). It should be possible, however, to achieve an approximate ranking of the available sentences, perhaps dividing them into three groups of relative severity, with each group containing various different sanctions (for example, a high fine and a short community service order might be in the same severity grouping).  The value of this exercise from the point of view of consistency is that an authoritative ranking of non-custodial penalties would enable the court both to individualise the sentence and to preserve proportionality, by first deciding how severe the sanction ought to be – by reference to the seriousness of the case – and then selecting the most appropriate one of the group of sentences at that level of severity.            

7.            Another situation in which there can be inconsistency of sentencing and an overuse of custody is where an offender breaches the terms of a non-custodial sentence. Where the breach takes the form of a subsequent offence, that is a separate matter which is dealt with in paragraph 8 below. Where the breach consists of some other non-compliance with the requirements (for example, failure to attend work appointments for community service, or failure to attend meetings with a probation officer), there is a potential injustice in imposing imprisonment when the original offence was not thought sufficiently serious to make custody unavoidable. Much depends on the facts of the particular case, but the committee was concerned that imprisonment might sometimes be used for breach of a non-custodial sentence when the breaching conduct was relatively minor, or when other ways of securing compliance had not been tried, or when the offender was for some reason unable to comply with the original order.  The problem arises poignantly in relation to fines. A court's decision to impose a fine usually implies that the case falls well below the level of seriousness required for a custodial sentence, and yet in some states imprisonment is used in many cases each year as a sanction for non-payment of fines. The committee's view was that this should be avoided as far as possible where the offender is unable to pay. One method of reducing the scope for such a sanction is to ensure that the fines which are imposed are within the financial capacity of the offenders: “day fine” systems of the kind operating in countries such as Austria, Finland, Hungary, Portugal, Sweden, Germany and France are designed to ensure this. It should also be emphasised, and kept in mind by the competent judicial authority, that the original offence was not serious enough for imprisonment, or was otherwise considered inappropriate for custody. The primary responsibility, however, rests with the government of each member state to explore the possibility of devising methods of fine enforcement which do not involve the use of imprisonment, including suspension of payment or modification of the sentence. 

8.         The suspended sentence is much used in many member states, but it is a sentence which can produce difficulties. A suspended sentence should therefore not be the only non-custodial sanction that is, besides fines, available to the judge. In most states, the key element in the suspended sentence is the threat of imprisonment if another offence is committed during the period of suspension, and yet the automatic implementation of suspended sentences for any subsequent offence (no matter how minor it may be, or what other circumstances there may be) can lead to injustice. Automatic implementation produces apparent consistency, but this conceals the real inconsistency of dealing with different cases in the same way. Both consistency of sentencing and restraint in the use of custody would be advanced if the implementation of suspended sentences is always a judicial decision – not an administrative one – and if the court has some discretion under the law to implement the suspended sentence in full or in part, or to take some other course. Guidance on the exercise of this discretion should also be provided, perhaps through the channels proposed in paragraph B.4 above, so as to ensure that there is consistency of approach in dealing with cases where, for example, the new offence is minor, or involves strong extenuating circumstances, or is of a different type from the original offence. 

C.  Aggravation and mitigation 

1.         In most member states, many aggravating and mitigating factors in sentencing are well established either in law or in practice. There is, however, considerable scope for disparity of approach on this subject, in the sense that courts may differ as to whether certain other factors should have an aggravating or mitigating effect. In the view of the committee, the general principle should be that the factors taken into account in aggravation or mitigation should be guided by the declared rationale(s) of sentencing, and any policies declared. This will enhance consistency of approach. 

2.         Those factors which are customarily referred to as aggravating and mitigating factors include some factors which relate solely to the offence (for example, that only a small amount of money was stolen, or only a small amount of violence used) and some which relate solely to the offender (for example, that it was a first offence). If consistency of approach is to be achieved, each member state should move towards the clarification of the major aggravating and mitigating factors, either in the law or as a matter of legal practice. If there is no agreement on these matters, subjective disparity between judges is likely to result. For the same reason, attempts should be made to identify factors which should not be considered relevant to sentencing for certain offences, when there is or has been doubt on the issue. For example, in England and in Sweden it has been declared that a court which is sentencing an offender for rape should not regard as a mitigating factor either the victim's previous sexual experience or the possible imprudence of the victim (for example, in accepting a lift in a car from a stranger). It is of course difficult to exclude any factor since a court is usually expected to make a total evaluation of the offence and the context in which it was committed. On all these matters it is not practical to propose that exhaustive lists be made, but it is eminently sensible that efforts be made to identify the leading factors and any points which have caused controversy or known divergence of opinion. 

3.            Although it is widely accepted that aggravating and mitigating factors ought to have a considerable influence on the sentence, these factors are often not specified as part of the definition of the offence, and therefore may not have been proved to the same standard as the elements specified in the offence. This might occur when the defendant pleads guilty to the offence charged, but argues that the facts are more favourable to him or her than is alleged. Fairness demands that factors which have a substantial effect on the sentence should be proved, if the defendant disputes them, to the same standard as the elements of the offence itself.   There is a clear analogy with Article 6, paragraph 2, of the European Convention on Human Rights. In some member states special procedures have developed to resolve issues of this kind: in England, for example, the judge must hold a “pre-sentence hearing” if there are disputed facts of this kind. Germany has a similar procedure, and France has an enquête rapide. But, irrespective of the procedural approach, it is essential that factors which go against the defendant and which are disputed should be proved to the proper standard. Similarly, if a court declines to take account of a factor advanced in mitigation, it should only do so if it is satisfied that the factor does not exist, after investigating the matter and/or giving the offender the opportunity to adduce evidence on the issue. 

D.  Previous convictions 

1.         The discussion in the committee quickly established the view that the reasons for persistently relapsing into crime vary, as do the circumstances of previous offences, and that it would be wrong to regard the repetition of offences as being a reliable indicator per se of increased culpability. Whilst in all member states persistent offenders are in general sentenced more severely than first offenders, this should not be an automatic response and courts should always consider the question in greater detail. Indeed, the point is not confined to courts: previous convictions may be relevant to decisions taken at various stages of the criminal process, whether by the police, the public prosecutor, the examining magistrate or the parole authority, and the fact that a person has previous convictions should at no stage be used mechanically as a factor working against him or her. 

2.         Almost all the principal rationales of sentencing mentioned in paragraph A.1 above yield the proposition that persistent offenders should in general receive more severe sentences than first offenders. For example, the persistent offender may need a stronger deterrent against lawbreaking (individual prevention); measures of social protection may be more necessary against persistent offenders (protective measures); and first offenders deserve the opportunity to respond to mild censure before the fully appropriate sentence is imposed on them for subsequent offences (desert theory). Yet it would be wrong to reach the position wherein the repetition of offending is regarded as more important for sentencing purposes than the offence committed on this occasion. For this reason, the committee concluded that an offender's previous convictions should generally be given less weight than the seriousness of the current offence or offences. This conclusion also contributes to the principle of restraint in the use of imprisonment (paragraph B.5, above). 

3.            Although in general most of the principal rationales of sentencing may justify higher sentences for offenders with previous convictions than for first offenders, the particular characteristics of an offender's criminal record must be taken into account. In its discussions the committee identified four classes of case in which the circumstances should operate to reduce or even to nullify the effect of previous convictions on sentence. First, where there has been a significant period free of criminality prior to the present offence, the defendant should be treated more as a first offender than as a previously convicted offender. Second, the prior record should have less influence when the previous offences were minor or where the present offence is a minor one. The committee discussed in this context whether it should include previous offences of a different kind, but reached no conclusion on this point. Third, the offender's previous convictions should have a reduced effect on the sentence if the offender is still young. The committee also discussed the possibility that previous convictions are a manifestation of the social background or conditions of deprivation which the offender has experienced. If such a process of social deprivation were established, the court would be acting (unknowingly) against the principle of non-discrimination (paragraph A.7, above) if it were to treat the previous convictions as a factor working against the offender. 

4.            Consistency would also be enhanced if member states had clear policies on the relevance of certain types of previous conviction. One increasing problem is that of convictions in other countries; other difficulties might arise from offences followed by a pardon or an amnesty, and offences which are time-barred. A coherent policy should be declared on the relevance of these previous offences in subsequent criminal proceedings. 

5.         A related but different problem arises in cases where a court has to sentence an offender on one occasion for two or more offences. It was agreed in the committee that simply to cumulate the sentences, adding one sentence for each separate offence, would be unsatisfactory as the basic approach to multiple offences. Since the number of offences sentenced for or charged may be a matter of judicial practice or prosecutorial discretion (for example, whether to sentence for or charge many separate thefts or one single theft), firm inferences about the extent of the lawbreaking cannot always be drawn from the number of offences charged. The principles applicable to sentencing multiple offenders differ considerably among member states: in France, for example, the court may only pass one sentence on a multiple offender (usually for the most serious of the offences). The most important matter is that the sentence or sentences passed should reflect the seriousness of the total criminality under consideration. Whilst courts will doubtless take account of the multiplicity of offences, it would surely be unacceptable if an offender who is sentenced for a series of ten cases of simple theft should find himself imprisoned for as long as an offender who has committed wilful homicide, for example. 

E.  Giving reasons for sentence 

1.         The giving of reasons is the essence of proper judicial decision-making. It has important functions: for the judge, in ensuring that the decision involves a proper application of law and discretion; for the offender, in explaining the basis for the sentence imposed; for both prosecutor and offender, in deciding whether or not to appeal; for the appeal court, in deciding whether or not the discretion has been properly exercised by the trial court; and for the general public, in informing them of the principles on which the courts act. In principle, therefore, the court should always state its reasons for imposing a particular sentence.  In practice, however, the requirements may differ. Less elaborate reasons may be required in less serious and frequently committed cases: as recognised in Recommendation No. R (87) 18, procedures for relatively minor cases should be simplified. There may also be a distinction between the formal reasons required to satisfy certain legislation, and the reasons relating to the facts of the case. The reasons may need to be fuller where the main question is the severity of sentencing. Where some orientations or starting-points are introduced, the reasons should be linked to them. If the court follows the orientations because the case is a normal one, it should explain the basis for concluding that the case is normal. If a court goes outside the orientations, usually on account of some special feature of the case, it is especially important that the sentence be accompanied by concrete reasons for the departure. In furtherance of the principle of restraint in the use of imprisonment, reasons should also be required for the imposition of custodial sentences in all but the most grave cases in which such a sentence would naturally follow, and for the length of the custodial sentence. 

2.         It is sometimes not clear what should count as “reasons” for sentence. It is insufficient to support a specific sentence by stating that the crime was “bad”, “terrible” or “an outrage to society”. In Germany, it is against the law for a judge to aggravate a sentence on the same general circumstance which the law uses to define the offence (Doppelverwertung). For example, if the offence is defined as sexual acts of a guardian with a person under his guardianship, then the court may not use the position of guardian as an aggravating factor. The reasons must be concrete, that is, they must relate the particular sentence either to the normal sentence for that type of crime or to the declared rationales and policies of sentencing. The reasons should therefore identify any aggravating and mitigating features, and indicate the extent to which they have influenced the sentence. Where there is an appeal against sentence, the appeal court's duty to give reasons should be especially strong, since the reasons will inform judges and lawyers for other cases. Where the law provides a minimum sentence for the offence and the court goes below it, the reasons should explain why the court has done so (as is required in Finland and in certain types of cases in Malta). Where the prosecutor has the power to recommend a sentence (as in the Netherlands) and the court exceeds the recommended sentence, reasons should be given. Also in the Netherlands, a court must give reasons if it refuses to accept an offender's offer to do community service instead of a short-term custodial sentence. The application of reason-giving may therefore vary from country to country, but it is the principle of regularly giving concrete reasons which is important. 

F.  Prohibition of reformatio in peius 

1.         In considering appeals against sentence, the committee was aware of the considerable differences in rights of appeal among member states. In terms of principle, however, it came to the conclusion that it is in general unfair for the appeal court to impose a more severe sentence when there has only been an appeal on behalf of the defence (the prosecutor has in certain states a statutory right to appeal for the defence). This is the principle of prohibition of reformatio in peius. The unfairness arises not merely from the element of surprise, in cases where an appeal or cross-appeal on behalf of the prosecution has not been thought appropriate, but more generally from the effect it has of discouraging defendants from pursuing their right of appeal (see the Seventh Protocol to the European Convention on Human Rights). If, from the point of view of the defendant, the outcome may appear more severe, this can act as a discouragement to the exercise of rights. 

2.         In some member states, the public prosecutor has the power to appeal or cross-appeal against sentence. This should generally be reserved for cases where there are grounds for believing that the sentence is outside the proper range. The committee thought that it was not desirable  for this power to be used routinely, since this might also have the effect of discouraging defendants from exercising their right of appeal. However, it recognised that the order in which appeals are lodged by prosecution and defence may be a matter of chance in some cases. Indeed, in France, there are rigid time-limits for appeals and cross-appeals. Paragraph D.2 envisages states where the prosecutor has an accessory power of appeal, that is, a power which arises only after the defendant has appealed and which is dependent on the appeal by the defendant; this should also be used with similar restraint.  The committee made these recommendations in the knowledge that prosecution appeals do make a contribution to consistency in sentencing, by allowing the correction of unduly lenient sentences as well as unduly severe sentences, but it was thought that the conflict between upholding prosecution interests and upholding defence rights should generally be resolved in favour of the latter, in view of the European Convention on Human Rights. 

G.  Time spent in custody 

1.         The committee quickly reached unanimity on the principle that time spent in custody awaiting trial or awaiting appeal ought to be deducted from the sentence imposed. Where a legal system permits the appeal court to disallow some or all of the time spent in custody, on the ground that the appeal is vexatious or frivolous, this power should be confined to exceptional cases. Otherwise it might go against the Seventh Protocol to the European Convention on Human Rights, by discouraging defendants from exercising a right of appeal. Time spent in custody abroad should also be deducted from any sentence subsequently imposed. It may be thought proper to have proportionately greater deductions for time spent in the prisons of certain countries, where conditions are especially arduous, and it may be appropriate to take account of time spent under “house arrest” or other forms of semi-detention. There are sometimes practical difficulties in ascertaining exactly how much time the person has spent in custody abroad, but this is a matter of evidence, not principle. 

H.  The role of the prosecutor 

In its deliberations the committee was constantly aware of the influence which prosecutors, among others in the criminal justice system, may exert on sentencing practice. It is true that the powers of prosecutors vary from state to state, but in all member states there seems to be some influence, direct or indirect, on sentencing. For example, prosecutors often have the task of determining which offence or offences to charge against a defendant; prosecutorial practices of this kind have an effect, at least indirectly, in determining the court's sentencing powers. The same can be said of prosecutors' decisions in relation to the level of court at which the offence is to be tried. In some member states, prosecutors regularly address the court on sentencing and request or recommend a particular sentence. This clearly has an influence on the court's sentencing approach, an influence which is strengthened in countries such as the Netherlands where it is rare for the judge to exceed the sentence requested by the prosecutor. Influence may also be exerted where prosecutors have the power to appeal against sentence, although that power should not be used purely as a device for increasing consistency.  The influence of prosecutors is particularly great in relation to financial penalties. Two main approaches may be found among member states. The first, adopted in Finland and in Sweden, is that courts are expected to calculate day fines on the principles adopted by prosecutors. The second approach is where the prosecutor has the power to invite the defendant to make a payment instead of being prosecuted. In the Netherlands, the prosecutor may offer a “transaction”, in Germany, a financial payment to charity, in Scotland a “fiscal fine”. Such systems were approved by the Committee of Ministers in Recommendation No. R (87) 18 on the simplification of criminal justice. The essential point here is to emphasise their close relationship to sentencing and their effect upon it. To deal with consistency in sentencing as if it were merely a matter for the courts would be to neglect this point.  It therefore follows that efforts should be made to ensure that prosecutorial practices make a contribution to overall consistency in sentencing. Thus, for example, if prosecutors have the power to recommend a sentence in court, it would be desirable for prosecutors and courts to approach the matter in the same way. In the Netherlands, for example, there are guidelines for prosecutors on the question of sentencing. If prosecutors have the power to offer prosecutors' fines, their practices should be harmonised with the sentencing practices of the courts for minor offences. Although in the Netherlands the judge is not bound by the public prosecutor's sentence request, in practice it serves mostly as a “ceiling”. The judge will then take account of other factors in the case as well, including mitigating factors, and is obliged to give concrete reasons for the sentence. The examination of the decisions may then lead to the amendment of the public prosecutor's guidelines. This demonstrates how the interaction of prosecutors and judges may lead to improved consistency in sentencing. Where prosecutors' powers have only an indirect effect on sentencing, through choice of charge, mode of trial or even “plea bargaining”, it should nevertheless be ensured that the relation of these practices to sentencing is kept in view. One approach which is adopted in some member states is for judges and prosecutors to have the same or similar courses and seminars available to them (see paragraph I.2, below). Another approach would be to ensure that all orientations for judges and prosecutors are harmonised. By “sentencing policies” in the recommendation, the committee meant those policies adopted in accordance with paragraph B.4, above. 

I. Sentencing studies and information 

1.         The effect which the practices of prosecutors may have upon sentencing patterns in the courts is a good example of the interdependence of the various stages of the criminal justice system. Judges should be regularly provided with information on the operation of the system as a whole, including such matters as changes in prosecution policy, the state of the prisons, changes in the early release of prisoners, etc. This would provide the context for the specific information on sentencing recommended in paragraph J.1, below, which should also be provided regularly to judges. 

2.         So wide-ranging are the matters which have a bearing on sentencing that judges should have available to them courses, conferences and seminars on sentencing. Ideally, these should be arranged on a regular basis by a publicly funded agency directed by a committee of judges, government officials and others. Some member states already have an institutional structure which provides both initial training and continuing studies: for example, there are the Ecole nationale de la magistrature in France, the Centro de Estudos Judiciarios in Portugal and the Judicial Studies Board in England and Wales. In the committee's view, the seminars should have three functions: first, bringing judges together to facilitate discussion of mutual problems; secondly, explaining the purposes of any orientations or starting-points laid down; and, thirdly, demonstrating the relationship of sentencing to other decisions taken in the criminal justice system. Seminars of this kind could make a major contribution to consistency of approach to sentencing. Judges might also be encouraged to widen their contacts. One possibility is that judges could be provided with the opportunity to discuss sentencing in a university context. Another possibility is that judges might acquire first-hand knowledge of the effects of treatment of offenders and of social problems in general. In France, judges participate in certain institutions (Conseils communaux et départementaux de Prévention de la délinquance), consisting of politicians, associations and representatives of the administrations. The judge may in such instances promote the needs of, for example, charged or convicted persons as regards housing, training, etc.  It was noted with interest that there are different ways of providing sentencers with comparative information. Some member states, such as the Netherlands and Sweden, collect and collate information about sentencing patterns. In Finland, the sentencing statistics are computerised. Some states in Australia and Canada have gone further and have made “sentencing information systems” available in the courts. These are computerised systems which may include information about maximum penalties, judicial decisions and sentencing practices. Judges may go to a computer terminal in the court, enter the basic details of a case, and then receive comparative information which may assist in sentencing. It appears that these facilities, which have only been available for three or four years, have had a mixed reception. 

J.  Statistics and research 

1.         There is no doubt that the regular collection and publication of statistics on sentencing are necessary if sentencing patterns and sentencing consistency are to be measured. In statistical terms this may require sophisticated techniques, because of the multiplicity of factors involved in sentencing decisions. Yet, if the statistics are to serve as information to judges and others working in the criminal justice system, it is essential that they are presented in such a way that they can be easily assimilated, and in such a form that they are not potentially misleading. For example, in some countries, there are many offences which are widely defined and which encompass a range of criminal conduct (see paragraph B.2, above). Statistics which showed the range of sentences for such an offence would probably be unhelpful, unless they were subdivided by reference to other factors not specified in the law. Thus, in England there is a single, broad offence of theft; but the statistics differentiate between various different forms of theft, such as theft from a shop, pickpocketing, theft from a meter, theft by an employee, etc. Sentencing statistics would be even more informative if they were able to differentiate between the degrees of criminality in those offences which have objectively quantifiable elements: for example, statistics for drunk driving might be sub-divided according to the amount of alcohol, or statistics for the various offences against property might be sub-divided according to the value of the property stolen or cost of any damage. Since the aim of producing information for sentencers is to give them assistance, effort must be devoted to ensuring a high standard of clarity in communication and a high standard of relevance in what is communicated.


2.         The use of statistics to identify and measure inconsistency requires considerable scientific precision. Account must be taken of the wide range of factors which are relevant to sentencing decisions, so that any variations in sentencing can be demonstrated convincingly. Some of the variations may be considerable, since there may be variations not only between types of sentence imposed (for example, prison, probation, fine) but also in the amount of the particular sentence imposed (for example, short, medium and long terms of imprisonment; low and high fines). The statistics should give these details as far as possible. 

3.         Even if the statistics are sufficiently refined to reflect these factors, they will merely have demonstrated variations. The next question is whether the variations are justifiable or unjustifiable, for only unjustifiable variations constitute disparity in sentencing. The basic framework for distinguishing between justifiable and unjustifiable variations should be apparent from recommendations A, B, C and D above, which establish general principles for decision-making on the relative seriousness of offences, the relative severity of sentences (paragraph B.6), the relevant aggravating and mitigating factors (paragraph C.2), and so on. Research should be carried out regularly in order to measure the relationship between sentencing variations and the different types of offence, the types of person sentenced and the procedures followed. Such research is particularly important when sentencing orientations or some other sentencing reform are introduced, in order to monitor and assess their effects. 

4.         Mere quantitative research is unlikely to capture a sufficient understanding of the sentencing process and of the reasons why courts reach particular decisions. There is therefore a need for qualitative research, involving the interviewing of judges and the observation of their work, so as to advance the understanding of judicial approaches to sentencing and to assist in the identification of sources of disparity. One aspect of this research should be to discover whether and to what extent certain external factors, such as the media, public attitudes or the local situation, can influence sentencing. 

5.         Both in the compilation of statistics and in the conduct of quantitative and qualitative research, it must be borne in mind that sentencing is merely one stage in the criminal justice system (see paragraph H.1, above). Research should therefore place sentencing in its proper context, and should not study it as an isolated phenomenon. 

K. European co-operation on sentencing information 

1.         One significant aspect of the work of the committee has been the accumulation and exchange of knowledge about sentencing practices and policies in different member states. Discussion of different approaches to similar problems has yielded distinct benefits for members of the committee, and this has led to the recommendation that some method of continuing exchange of such information should be established. At a time when many states are dealing with similar issues in sentencing, information about new developments in sentencing law, policy and practice in other states could be of considerable assistance. This may be of increasing relevance in relation to central and eastern Europe, and may contribute to the promotion of uniform policies and practices at a European level (see paragraph A.5, above). 

2.         In particular, two developments would be worthwhile. First, a European newsletter on sentencing might be established. Secondly, a forum for regular meetings of judges and others involved in the criminal justice systems of member states should be arranged, so as to spread awareness of shared problems and possible solutions.


[1] The questionnaire and the answers thereto may be obtained from the Directorate of Legal Affairs, Council of Europe. Select bibliographies are to be found in the report on the Eighth Criminological Colloquium, Volume XXVI, quoted above).



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