Professor Kevin Brown

Before the summer recess, MLAs debated a motion on improving sentencing practice that called for a public consultation on creating a Sentencing Council.

Northern Ireland is the only jurisdiction on these islands without such a body. The justice minister, Naomi Long, has now committed to a further consultation on how sentencing guidance should be developed here.

That move sits uneasily with the Department of Justice’s Way Forward Sentencing Review (2021), which backed a distinctive approach: strengthening the Court of Appeal’s role in producing guidance rather than establishing a council. Those proposals were expected to appear in a Sentencing Bill later this autumn, but that element of the legislation now looks uncertain.

Complicating matters further, the Lady Chief Justice used a recent public lecture to oppose a council model for a compact jurisdiction like Northern Ireland. The distance between judicial preferences and political expectations is widening, and the shape of any reform — court-led guidance, a statutory council, or something in between — remains an open question.

Two models dominate the common law world

In court-led systems, benchmarks are derived from appellate judgments. Their advantages include low administrative costs and significant judicial oversight, while their disadvantages involve uneven coverage due to delays in cases reaching the relevant appeals court, limited transparency, and fewer structured opportunities for non-judicial stakeholders to be heard.

By contrast, council or commission models assign drafting responsibilities to a statutory body that consults, analyses data, and publishes guidelines, usually subject to judicial approval. Councils typically have a broader membership, including other criminal justice practitioners, victims’ rights representatives, and academic experts. These offer inclusivity, transparency, and routine review but also bring institutional costs (such as a secretariat) and carry a higher risk of politicisation.

Current approach in Northern Ireland

Northern Ireland, unlike the rest of the UK and Ireland, has so far maintained a court-led approach.

Following the devolution of justice powers, back in 2010, a council was proposed as a confidence-building measure. Justice Minister David Ford consulted on three options: a council, an advisory panel with Court of Appeal approval, and a non-statutory judicial route, ultimately supporting the bench-led model on the grounds of protecting judicial discretion and reducing costs.

This decision was supported by the judiciary, who, as in other common law systems, were sceptical of a council, viewing it as a potential restriction on discretion and a channel for external influence.

Under the current system, the Judicial Studies Board (JSB) and the Lady Chief Justice’s Sentencing Group (LCJSG) curate guidance; Crown Court benchmarks come primarily from appellate judgments; and there is no statutory duty on judges to follow or “have regard” to guidelines. 

The LCJSG has a small number of non-judicial members (court service officials, two law academics and the Victims’ Commissioner designate), but a judicial subcommittee undertakes drafting of Magistrates’ Courts guidance, and Crown Court guidance rests on appellate decisions rather than council-style drafting. (Disclosure: I have served as one of the LCJSG’s academic members.) 

The model prizes judicial independence and local fit, but it also leaves gaps in coverage and limits the visibility of the evidence base and opportunities for consultation. A Department of Justice review of these arrangements, promised in 2012, has never been carried out.

A third way

The Department’s Way Forward review then set out a reform that appears unique in the common law world. Instead of creating a council, it would equip the Court of Appeal with many of the tools councils use. The court could issue guidelines on its own initiative rather than waiting for a suitable case, receive applications from the Attorney General or the Director of Public Prosecutions, and take account of relevant data and representations from interested parties. In short, it is a council’s functions without a council.

That design raises practical questions that remain unresolved. Who decides which voices are heard and on what basis? What evidence must be considered and published? How binding are guidelines in practice, and how are those guidelines to be structured? How could guidelines be challenged? How will the LCJSG and JSB fit with a more activist appellate role? The proposals sketched a powerful toolkit but left the mechanics, workability, transparency and inclusiveness underspecified.

Shifting political ground

Initially, only nationalist parties favoured a council, and Sinn Féin played an instrumental role in pressing the previous Irish government to establish one in the Republic. Unionist parties and Alliance were, at best, ambivalent. In 2025, however, Doug Beattie, as the UUP’s justice spokesperson, publicly called for a Sentencing Council for Northern Ireland following his criticism that sentences are too often unduly lenient.

It is not clear at this stage whether the DUP or Alliance will join the other parties in supporting the establishment of a council. Alliance have shown little inclination to support a council during their time in charge of the Department of Justice, but they may find themselves in a minority of one in the Executive on the matter. 

Recent developments in England and Wales

Developments in England and Wales complicate the picture further. A Sentencing Council was established in 2010 and has been proactive in that time in drafting and publishing guidelines for sentencers.

However, a row this spring over proposed guidance from the Sentencing Council on pre-sentence reports, criticised by London ministers as creating “two-tier justice”, prompted changes and has been followed by plans for a “democratic lock” requiring joint approval from the justice secretary and the Lady Chief Justice of England and Wales before any new guideline can be issued.

For Northern Ireland, the experience in England and Wales cuts both ways. Advocates for a council can point to the extensive guidelines the English model has delivered since it was established in 2010; sceptics can point to the recent controversy.

Where does this leave the Sentencing Bill?

With another consultation soon to be underway, provisions on guidelines are unlikely to be introduced this session, unless through amendment. That delay may be sensible if it allows time to design the mechanics properly. But it should not become drift.

Northern Ireland is now an outlier across these islands in how guideline-making works; if it remains court-led, the trade-offs should be explicit and mitigated. If it moves to a council, the remit and safeguards should be equally clear.

In a post-conflict society, the politicisation of sentencing presents specific risks, but the current system seems to be losing political support, which threatens public confidence in sentencing.

• Kevin Brown is professor of criminal law at Queen’s University Belfast. For further discussion on these reforms, see his article in the Northern Ireland Legal Quarterly.