Commentary on Sections Part 12 - Sentencing Chapter 1: General provisions about sentencing Section 170: Guidelines relating to sentencing and allocation
479.This section sets out the responsibility for issuing guidelines and sets out the matters to be taken into account in the process of creating them.
480.Subsection (1) defines “sentencing guidelines” and “allocation guidelines” as meaning guidelines relating to the sentencing of offenders and guidelines as to the allocation of cases between courts.
481.Subsection (2) allows the Secretary of State to ask the Council to frame or revise guidelines relating to allocation, a general matter affecting sentencing (for example, relating to the credit to be given for a guilty plea), to a particular category of offender (such as those with previous convictions), or relating to a particular offence. The Council itself can decide to frame guidelines, under subsection (3), and must consider whether to do so where it receives a proposal from the Sentencing Advisory Panel or the Secretary of State (as described above). Subsection (4) obliges the Council to keep its guidelines under review (where they have been formally issued) and revise them if appropriate.
482.Subsection (5) sets out the factors to be taken into account by the Sentencing Guidelines Council when creating or revising sentencing guidelines. The list (which reproduces the existing list in section 80(3) of the Crime and Disorder Act 1998) is not intended to be exhaustive.
483.Subsection (6) sets out certain factors to be taken into account by the Sentencing Guidelines Council when creating or revising allocation guidelines. These are the importance of promoting consistency in decisions under section 19 of the Magistrates’ Courts Act 1980 (which relates to determining mode of trial) and the views of the Sentencing Advisory Panel.
484.Subsection (7) requires the Council to include in its guidelines criteria to determine the seriousness of the offence being dealt with. Where appropriate those criteria need to include criteria for determining the significance of any previous convictions of the offender.
485.Subsection (8) requires the Council to publish proposed guidelines in draft for consultation with the Secretary of State, any other person the Lord Chancellor after consultation with the Secretary of State directs and any other person the Council considers to be appropriate. It is anticipated that the second of these categories will include the House of Commons Home Affairs Committee. This consultation will follow that undertaken by the Sentencing Advisory Panel (see Section 171(3)) and will reflect the need to avoid duplication of effort.
486.Subsection (9) provides for the Council, after making such amendments as it considers appropriate, to issue the guidelines as definitive guidelines.