Kevin Brown

It is a well-established principle of sentencing that the punishment should be proportionate to the offence’s seriousness. In practice, this involves sentencers following a logical sequence, first determining the seriousness of the offence by assessing a) the harm caused or risked and b) the culpability of the offender, and then adjusting the sentence by considering any additional aggravating or mitigating factors. The current formulation of the statutory test in the Sentencing Bill blurs these stages, thereby risking the undermining of not only the principle of proportionality but also the principles of fairness and transparency.

Clause 1(4) of the Bill directs courts, in assessing the proportionality of a sentence to the seriousness of the offence, to take into account ‘the circumstances of the offence… including any aggravating or mitigating factors’ and ‘the character and circumstances of the offender.’  It departs from conventional formulations in its terminology, most notably by omitting any express reference to either harm or culpability. 

The term ‘circumstances of the offence’ is a nebulous concept that likely encompasses a wider range of factors than harm, including issues of culpability. For example, evidence of premeditation would appear to be ‘a circumstance of the offence’ even though that should be properly considered separately when assessing the offender’s culpability. 

The equally imprecise phrase ‘the character and circumstances of the offender’ would appear to encompass a wider range of factors than is necessary to determine culpability. The use of the word ‘character’ is particularly concerning as someone’s character is arguably not relevant to determining their culpability in committing a particular offence.  If, for example, a man is convicted of sexual abuse of a child, the fact that he can provide evidence of previous good character should not diminish his culpability for the purposes of sentencing. If character is relevant, it should be considered separately after the offence’s seriousness has been determined.  

More broadly, the wording fails to distinguish between factors that inform harm or culpability and other aggravating or mitigating factors that may affect the eventual sentence. This creates the risk of double counting, with the same factor influencing the sentence twice.  

The current wording of the proportionality test in the Bill departs from previous Department of Justice documentation, which recognises that harm and culpability are the two main parameters for determining seriousness. It reflects neither the current Northern Ireland Magistrates’ Court guidelines nor the approaches taken in England and Wales, Scotland or the Republic of Ireland, all of which treat harm and culpability as the central components of offence seriousness or gravity. 

Given the novel approach adopted in the Sentencing Bill, it is striking that the Department’s Consultation did not canvass views on the definition. Nor did the subsequent Way Forward document address the definition of proportionality. Furthermore, the explanatory material accompanying the Bill fails to explain the rationale for this approach. There is therefore a real risk that a flawed definition will pass into law without receiving the scrutiny it warrants.

In my response to the Committee for Justice’s call for evidence on the Bill, I propose alternative wording for the statutory provision that reflects current practice, is consistent with established sentencing principles, and explicitly recognises victims and communities in the statutory text. 

It provides that seriousness is assessed by reference to a) the harm caused, intended or foreseeably risked, including harm to victims and, where appropriate, the wider community and b) the offender’s culpability. A separate subsection then requires the court to consider any remaining aggravating and mitigating factors that were not already reflected in that assessment.

This reworded test is consistent with the principles of proportionality, fairness and transparency. It is not designed to increase sentencing levels, nor is it an attempt to unduly constrain judicial discretion. Rather, it seeks to provide a clearer statutory expression that will guide sentencers and be understandable to defendants, victims and the wider community.  

Kevin J. Brown is a professor in criminal law at Queen’s University Belfast

For a fuller discussion of the issue, the author’s response to the Committee for Justice’s call for evidence can be found here.