Do judges wilfully misinterpret sentencing guidelines?

Following Cycling UK's sentencing debate last Friday (13/06/14), a few of the attendees were asked for their views on the debate and sentencing practice. 

The cycling blogger, Bill Chidley, was one of those interviewed. He was asked: ‘what is the one thing you will take away from this debate?’ Bill said that during the course of the debate it had become apparent to him that both magistrates and senior judges either do not understand the sentencing guidelines or willfully misinterpret them. (See the videos at Cycling UK's youtube channel.) 

Can it really be possible that judges fail to understand the sentencing guidelines? They are trained to use the guidelines and have legal advisors who assist them in applying the guidelines correctly. Bill's second hypothesis - that judges wilfully misinterpret the guidelines - is more likely. However, we must also remember that the sentencing guidelines themselves are not fit for purpose and are largely to blame for much of the lenient sentencing of drivers.  

Sentencing guidelines 

Judges use sentencing guidelines to ensure the punishment fits the crime and is consistent with punishments given for the same offence in different areas of the country. Judges are also supposed to consider what sort of sentence would most likely change the offender’s behaviour. 

Sentencing guidelines, which are created by the Sentencing Council, say little about the role of driving bans as a punishment and public protection measure. They outline the minimum length of bans and explain when special reasons to reduce or avoid a disqualification can be accepted, but beyond that, they don’t delve much deeper into the subject. We also spoke to Lissa Matthews of the Sentencing Council after the debate about how interested parties could participate in their review.

To a certain extent, it would therefore be wrong to say that judges wilfully misinterpret the guidelines when sentencing, as there is very little to misinterpret when it comes to driving bans. In fact, by sticking close to the minimum disqualification length, judges are actually following the line the guidelines take.

What sentencing guidelines do say is that ‘the court may disqualify any person convicted of an offence from driving for such a period as it sees fit’. Hence, judges have the power to ban drivers for as long as they think is appropriate, yet 69% of disqualifications for driving offences are for less than two years. This doesn’t mean that judges misinterpret the guidelines, it means they do not think long bans are a necessary or appropriate punishment. Cycling UK, and many other organisations campaigning for road safety, strongly think otherwise.

Mandatory bans

Even when the sentencing guidelines state that bans are mandatory, judges do not always give them and often give bans much shorter than the mandated minimum. ​Driving bans are mandatory for all causing death or bodily harm by driving offences, yet one in five drivers convicted of these offences does not receive a ban. Cycling UK believes this is because judges too frequently accept 'special reasons' to avoid bans or have them reduced, which is permitted by the guidelines. 

Driving bans are mandatory for all causing death or bodily harm by driving offences, yet one in five drivers convicted of these offences does not receive a ban.

Rhia Weston, Road Justice Campaigner

There are cases where judges have made comments intimating that the driving was particularly egregious, only to give the defendant a lenient sentence. Take, for example, the case of Samuel Mason who pleaded guilty to killing John Parkin by careless driving in May 2013.

The judge in this case said the incident was not caused by momentary inattention but that the standard of driving was closer to ‘reckless risk-taking’, yet he only sentenced Mason to six months in a young offenders’ institution, an 18-month driving ban and ordered him to sit an extended re-test.

According to the sentencing guidelines, when an offence sits on the border with dangerous driving, a custodial sentence as long as three years can be imposed. It could, therefore, be argued that the judge misinterpreted the guidelines in this case. Whether this was wilful, we cannot say. Cycling UK would not necessarily have supported a longer prison sentence in this case, but a much longer ban would have been more suitable. 

Sentencing training

One of the recommendations made by Cycling UK in the newly published Road Justice campaign report ‘The Courts and Sentencing’ is for judges to receive specialist training in road traffic law and cycle safety issues, especially if handling fatal cases, in the same way that judges sitting on domestic violence and complex child abuse cases receive bespoke training.

When asked how magistrates and judges could be encouraged to make greater use of more varied non-custodial sentencing options, Chris Brace, CEO of the Magistrates’ Association, stressed that judges do not respond well to ‘encouragement’ and a better method of altering their sentencing habits would be to provide robust evidence that different sentencing options work.

Judges should therefore receive information on the importance of driving bans as a sanction and should have to record the reason for not giving a driving ban or why the ban imposed was shorter than the minimum required period.