How are criminal sentences decided in England and Wales?

In this article, Dr Qi Chen Assistant Professor in Criminology at the University of Nottingham explains the work they are doing, in collaboration with industry partners including the Sentencing Council for England and Wales and the House of Commons Justice Committee, to help the public to better understand how criminal sentencing works in the UK.

A system under pressure

The UK prison system is currently in crisis. Faced with a prison system that almost reached its capacity, Justice Secretary Alex Chalk announced in October 2023 that emergency measures will be used to battle prison overcrowding in England and Wales. The measures include the suspension of short prison sentences and an increased focus on community supervision.

The announcement attracted mixed reactions from the media and stakeholders. Some reporters expressed the understandable fear that ‘rapists and burglars might avoid prisons’ because of these measures. Some criticised past policymakers for pursuing a ‘tough-on-crime’ image without considering prison capacity. Campaign groups such as the Prison Reform Trust welcomed the Justice Secretary’s ‘long-overdue’ decision to cut short prison sentences.

Despite the mixed reactions, it's evident that the penal system has reached a critical point in England and Wales. It’s time to rethink how we sentence and punish offenders.

Understanding the challenge

However, such rethinking can be challenging. Recent studies suggest that a significant portion of the public still don’t think the current system is tough enough. According to the House of Commons Justice Committee’s 2023 survey 71% of respondents feel that criminal punishment is too lenient, while 30% think that prison sentences are getting shorter.

These perceptions are not in line with the real sentencing patterns in England and Wales: the average custodial sentence length (ACSL) has actually increased by 37% between 2009 and 2019.

Research also shows that there is a lack of public understanding of how sentences are decided. For example, only 22% of respondents to the Justice Committee’s 2023 Survey knew that Parliament was responsible for setting the maximum sentence for offences in law, not the courts or judges.

Addressing these knowledge gaps becomes imperative for fostering an open and healthy debate on sentencing, a fundamental aspect of democratic policymaking.

Working collaboratively to improve understanding

To help bridge these gaps, I collaborated with the Sentencing Council for England and Wales and the House of Commons Justice Committee to create a video explainer on criminal sentencing.

This resource aims to shed light on key questions, including:

1. Rulemaking in sentencing: Who is responsible for creating sentencing rules, why are these rules necessary, and how can the public participate in the rule-making process?
2. Factors in sentencing: What factors are considered in sentencing, and which ones have the most significant impact on sentencing outcomes?
3. Comparison with European neighbours: How do the harshness or leniency of sentences in England and Wales compare to those in European countries?
4. Trends in prison sentences: Are prison sentences in England and Wales getting shorter or longer over time?

You can view the video below: