Developing sentencing guidelines
Submitting InstitutionKeele University
Unit of AssessmentLaw
Summary Impact TypeLegal
Research Subject Area(s)
Law and Legal Studies: Law
Summary of the impact
Professor Martin Wasik's research has made a significant and enduring
impact on the law and practice of sentencing — the scale of which has
grown from 2008 onwards. This is evidenced by the adoption in England and
Wales of 23 sentencing guidelines developed by the Sentencing Advisory
Panel, which he chaired from 1999 to 2007, based on proportionality
principles advocated in his research and publications. The work of the
Panel attracted international attention, informed policy debate, and
served as a model of democratic involvement in the area of sentencing.
Wasik also provides national Judicial College training on sentencing, and
publishes extensively for practitioners, including a monthly e-letter
mailed by the College to all judges who sit in criminal cases.
The underpinning research set the ground for the principled development
of sentencing guidelines in England and Wales as the appropriate mechanism
to achieve greater consistency in sentencing practice. Drawing upon the
writings of von Hirsch and Ashworth, Wasik has urged the adoption of
proportionality (or `desert') as the anchoring principle for the
development of sentencing guidelines and as a proportionate constraint on
punitive excess (see references 2, 3 and 4, below), but has argued that
English guidelines should be narrative in form, rejecting the numerical
sentencing `grids' in the USA (e.g. reference 4). This has been the
approach adopted by the Panel in its advice, such as that issued by the
Sentencing Guidelines Council as Overarching Principles: Seriousness,
para 1.4: "A court is required to pass a sentence which is commensurate
with the seriousness of the offence. Seriousness is determined by two main
parameters — the culpability of the offender and the harm caused or risked
by the offence". He also argued for a step-by-step implementation of
guidelines, rather than the one-off adoption of an overall scheme. The
incremental approach (set out in detail in reference 2 below) has proved
highly effective in practice in England and Wales, while ambitious
attempts elsewhere (in some US States and in New Zealand) to implement
guidelines as a single package have failed completely, through judicial or
legislative resistance. Wasik's research has also argued that greater
consistency in sentencing can best be achieved through working with judges
towards proper engagement with sentencing guidelines, rather than the
elimination of judicial discretion (e.g. references 2 and 5).
References to the research
(1) Wasik, M. (2001) Emmins on Sentencing. (4th edition).
Blackstone Press, Oxford, 399pp.
(2) Wasik, M. (2004) `Sentencing guidelines — past, present and future',
Current Legal Problems, 56(1), pp.239-264. DOI:
(3) Wasik, M. (2004) `Going round in circles? Reflections on fifty years
of change in sentencing' Criminal Law Review, pp. 253-265.
(4) Wasik, M. (2008) `Sentencing guidelines in England and Wales — state
of the art?' Criminal Law Review, Volume 4, pp. 253-263.
(5) Wasik, M. (2004) `Principles of sentencing' in Feldman D (Ed.) English
Public Law. Oxford University Press, Oxford, pp.1191-123. 2nd
(6) Wasik M. `Part E: Sentencing' in Murphy P (Ed.) Blackstone's
Criminal Practice. Oxford, Oxford. Annual editions from 1991 to
date, including supplements (2013 edition is 3052pp).
(1) was cited by the High Court in Scotland in Gemmell (2012) JC 233
(3) and (4) are in the leading specialist journal in the field.
(4) was influential in persuading the Sentencing Commission Working Group,
Sentencing Guidelines in England and Wales — An Evolutionary Approach
(July 2008) to reject the move towards US-style sentencing guidelines.
(6) Is a standard work available in all criminal courts in England and
Wales and is extensively used by advocates and judges.
All can be supplied if required.
Details of the impact
Adoption of sentencing guidelines
Based on his underlying research that identified the need for and most
effective form of sentencing guidelines, Wasik was appointed as the first
Chair of the Sentencing Advisory Panel (`the Panel'), advising first the
Court of Appeal, and then, from 2007, the Sentencing Guidelines Council.
The Panel's work involved quantitative analysis of sentencing statistics,
assessment of critical academic writing, wide consultation with interested
organisations and individuals, including victims of crime and the general
public. It was recognised as high-quality, thoroughly researched work, but
directly applicable to practice. The Panel also commissioned independent
empirical research into public attitudes to sentencing. Lord Chief Justice
Woolf said: `The advice of the Panel under Martin Wasik's authoritative
chairmanship is always thoroughly researched, carefully considered, and of
the highest quality' (source 1). In their text Easton and Piper refer to
the `value of the reasoned and researched advice given by the SAP
[Sentencing Advisory Panel]' (source 2). The advice from the Panel on the
basis of this research was adopted and their guidelines have been issued
on 11 occasions by the Court of Appeal and on 12 occasions by the
Sentencing Guidelines Council.
Some guidelines set out general principles, based on proportionality.
These include guidelines on offence seriousness, sentencing of young
offenders, and allocation of offences. Others provide clear and detailed
advice for judges dealing with difficult and emotive areas, such as
sentencing for rape, burglary, driving offences causing death, child abuse
offences, fraud, handling stolen goods, minimum terms in murder, and the
reduction in sentence for a guilty plea. This last guideline is `the
reference point' for judges dealing with the 90 per cent of defendants who
plead guilty (source 3). This guideline has been referred to in appellate
cases on 445 occasions in 2013 alone. The guideline on domestic violence
was strongly endorsed by Hallett LJ: `Investigators, prosecutors,
defenders and judges should read and re-read the guideline, and ensure
they are truly aware of its implications' (source 4). Early guidelines
developed by the Panel, such as those on handling stolen goods in Webbe
 EWCA Crim 1217, remain the standard for any judge or magistrate
sentencing for that offence. This guideline has been followed and endorsed
by the Court of Appeal in 129 cases (63 since 2008). Many changes to
sentencing practice have resulted from the Panel's advice and the
resulting guidelines, including the principle that the starting point in
sentencing for rape should be the same in `stranger rape' and
`acquaintance rape' cases (source 5), and the adoption of a scale of
seriousness within child abuse images as a means of achieving consistent
sentencing for the offense of downloading child abuse images from the
internet (source 6). The Lord Chief Justice had previously sought the
views of the Panel in relation to issuing guidelines for this offence and
substantially adopted the Panel's advice in this case. The guideline on
sentencing for child abuse image offenses has been referred to and
endorsed in 268 appellate cases (54 since 2008). The guidelines for
sentencing in rape and child abuse image cases were subsumed within the
compendious guidance on sentencing for all sexual offences, issued by the
Panel and the SGC in 2005. The sex offence guidelines have been referred
to in 97 appellate decisions in 2013 alone.
In the early years of the Panel there was considerable judicial
scepticism about the guidelines project, but that was overcome, so there
is now a high degree of agreement within the profession of the value, and
therefore the impact, of sentencing guidelines. The Home Secretary who
sponsored the creation of the Panel said in 2008 `It is a remarkable
achievement that the Panel is now so highly regarded, not only by the
Court of Appeal but by practitioners, academics, and other jurisdictions'
(source 7), and the Lord Chancellor during the same period said: `The
acceptance of the Panel, and the good relationship it built up, initially
with the Court and with the SGC, is due in no small part to [Wasik's]
chairmanship ... [Wasik] made a huge contribution' (source 8). Lord Chief
Justice Phillips in 2007 said that `... [Wasik's] ability to draw together
academics, judges, magistrates and other practitioners, as well as
individuals from outside the criminal justice system, has contributed
significantly to increasing the Panel's influence' (source 9). Wasik was
appointed CBE in 2008 for services to criminal justice.
Importance of guidelines for practitioners
The proper understanding and application of sentencing guidelines is now
a key feature of training for all judges and magistrates who sit in
criminal cases. Wasik, due to his role on the Sentencing Guidelines Panel,
is one of two keynote speakers (with Professor Ormerod QC) invited to
deliver the compulsory judicial training organised by the Judicial
College. In 2012 Wasik addressed 90 full-time and part-time Crown Court
judges over two days in September. He ran two training sessions for High
Court and Court of Appeal judges at the Royal Courts of Justice in October
and November 2012. He was the keynote speaker on sentencing in Judicial
College courses in April and September 2013 (a total audience of 200
judges). He has been retained for similar presentations through 2014 and
2015. The published sentencing guidelines are reproduced in full in the
relevant practitioner works: Blackstone (where Wasik writes the
sentencing material) and Archbold. Blackstone is a leading
practitioner work, with copies available on the bench in every criminal
court and is regularly cited by the Court of Appeal. Wasik's continuing
impact on judicial education was strengthened by his appointment in 2005
(to present) as a part-time Crown Court judge, and he sits for up to 30
days each year on the Midland Circuit. Training new practitioners and
re-training older ones has a direct impact on the effectiveness and
integrity of the criminal justice system throughout the UK.
Criminal law e-letter
Wasik produces (with Professor Ormerod) a monthly criminal law e-letter
which is mailed by the Judicial College to all judges who sit in criminal
cases. This has been described by HH Judge Phillips, Director of Training
for the College as providing a `massive contribution [to] keep[ing] judges
up to date with recent developments in criminal law and to alert[ing] them
to forthcoming changes. [Wasik and Ormerod] combine academic excellence
with a down-to-earth practical approach' (source 10).
Informing policy debates in other jurisdictions
The working process of the Panel, and the guidelines they produced, have
had international reach. The Panel hosted visits from judges and officials
from the USA, Canada, South Africa, South Korea, Scotland, New Zealand,
and Australia. According to Freiberg (source 11), the Sentencing Council
in the Australian State of Victoria chose to follow the Panel's model,
since `its membership was broader than that of the US Commissions and its
consultations were very wide, partly in order to democratise the
Sources to corroborate the impact
(1) Lord Woolf, Lord Chief Justice, in the Annual Report of the Council
and Panel 2004-5
(2) Easton, S. and Piper, C (2008) Sentencing and Punishment: The
Quest for Justice, 2nd edition. Oxford University Press: Oxford,
(3) Hughes LJ in Caley  EWCA Crim 2821.
(4) Lady Justice Hallett in Attorney General's Reference No 80 of 2009
 EWCA Crim 470
(5) Millberry  EWCA Crim 2891
(6) Lord Justice Rose in Oliver  EWCA Crim 2766.
(7) Home Secretary at the time.
(8) Secretary of State and Lord Chancellor at the time.
(9) Lord Phillips, Lord Chief Justice, 2007, Sentencing Guidelines
Newsletter, May 2007, p.1.
(10) His Honour Judge John Phillips, foreword to the e-letter (Crime),
(11) Freiberg, A. (2008) `The Victorian Sentencing Council' in Freiberg
and Gelb (eds), Penal Populism, Sentencing Councils and Sentencing
Policy, Willan Publishing, p.152.