process, there is a case for structuring judicial discretion as it relates to personal
mitigation. In the previous chapter we expressed some sympathy with the view that judicial discretion enabled sentencers to retain the humanity in sentencing. By
implication, the extensive scope for personal mitigation is something to be valued rather than discarded. However, the study has shown that there is plenty of room for
idiosyncratic decisions on mitigation.
It strikes us as wrong that judges should apply conflicting principles in their decisions about mitigation. For example, we have seen that, with exceptions, our respondents generally paid limited attention to early deprivation and abuse as mitigating factors.This was often on the grounds that childhood deprivation represented not the exception but the rule in cases coming before them.This is a reasonable argument – but does it carry the implication that offenders with more privileged backgrounds should be given tougher penalties? This is an issue of principle that relates to conceptions of culpability.
One ‘social realist’ school of thought is that life opportunities are quite largely shaped by one’s social, economic and cultural background; the opposing position is that more is gained than lost in a justice system that treats everyone as equal before the law.
Our analysis has shown that there are at least four types of factor that sentencers take into account in personal mitigation:
• those that indicate reduced culpability, such as youth or mental health problems, pressing need, previous good character and exceptional disadvantage (largely categories 3 and 4 in Table 2.4)
• those that indicate limited risk of further offending - relating to remorse and attempts to make reparation, the offender’s background and
circumstances, or steps taken towards rehabilitation (categories 4, 5 & 6)
• those that indicate particular sensibility to punishment, such as the strain of prosecution, the loss of reputation and standing or the fact that the offender is unusually poorly equipped to handle a prison sentence (categories 4 and 6)
• factors that call for clemency, such as the victim’s support for the offender, family responsibilities and the ‘collateral damage’ that imprisonment would inflict on relatives, or the social contribution made by the offender
It would be possible – and desirable – to articulate a set of principles that should apply to each of these four forms of personal mitigation.We can agree that, other things being equal, sentencers should pass sentences that fit the crime.What is needed is a greater degree of agreement about the circumstances in which ‘other things aren’t equal’ to the extent that deviation from the overarching principle of proportionality can be justified. At the same time, it would be critically important to clarify the role of proportionality in setting the upper limits to sentences.While justice may be served in permitting certain kinds of personal factors, in certain circumstances, to mitigate sentence, it is hard to make a convincing case for construing the absence of these factors as
aggravating factors – other than in cases where the foremost consideration must be the level of risk to the public. In other words, a continued commitment to proportionality as a limiting principle should preclude unintended punitive consequences for offenders whose personal circumstances do not trigger mitigation.
If there is a need for guidance on personal mitigation, the task falls most obviously to the Sentencing Guidelines Council (SGC), supported by the Sentencing Advisory Panel. As noted above, SGC guidance to date on mitigation has been limited to date. It would be an impossible task to issue comprehensive guidance that was tailored for specific cases. However, it would be possible to set out some principles of mitigation.The findings presented in Chapter 4 suggest that topics on which guidance would be helpful include:
• whether and why securing or retaining employment should be regarded as a mitigating factor
• whether disadvantage and social exclusion should be regarded as mitigating factors, and whether advantage should be regarded as an aggravating factor
• whether and why family and childcare responsibilities should be treated as mitigating factors, and whether fathers should be treated differently from mothers
• whether offender ‘sensibility’ to particular punishments should be taken into account, by analogy to the means test applied in unit fine systems
• to what extent and in what circumstances the possibility of rehabilitation, e.g. through drug treatment, can over-ride the principle of proportionate punishment
• the scope for personal mitigation a) where there is a plea of not guilty, and b) where the offence is so serious as to make custody inevitable. The complexity of the task of developing guidelines on mitigation should not be under- estimated. If they were to be effective, the guidelines would have to combine sufficient flexibility allow for the infinite variation in the detail of individual cases with sufficient rigour to promote consistent application. In drawing up any such guidelines, it could be helpful to look at how factors of personal mitigation have been identified within the sentencing frameworks of other jurisdictions, including those where specific factors have been given a statutory footing (some examples of which are provided in Appendix 2).
Another consideration in the development of guidelines is how the sentencers themselves are likely to respond. As we have noted above, our respondents included those who followed all relevant directions and guidance closely and carefully in passing sentence, and those who, in contrast, sentenced quickly and intuitively. A few in the latter category also made explicit their willingness to ‘cheat’ with regard to statutory requirements. It is, clearly, a possibility that guidelines on mitigation would be largely disregarded by the more intuitive sentencers, or would be interpreted as simply extending their discretion.This again points to the importance of balancing flexibility with rigour, and ensuring that the guidance is developed within the broad parameters of proportionate sentencing.