Ticking off

The Sentencing Advisory Panel (SAP) has been asked by the Sentencing Guidelines Council (SGC) to advise on 'the impact that offences taken into consideration (TICs) should have on sentence for the offence(s) of which an offender has been convicted'.

This has been a troubling issue for practitioners and courts alike. For practitioners the question has been how to advise their clients as to the sentencing consequences of asking for other offences to be TIC. For courts the difficulty has been to determine the extent to which the overall sentence should be modified in circumstances where a convicted person might be asking for any number of offences to be considered.

Details of offences TIC have not been kept in any database thus far, so it is impossible to determine what trends there have been. Clearly part of the current objective is to ensure that there are national standards being applied and that there is consistency of approach across the courts. Thus this advice, if acted on, will be another step towards the codification and standardisation of the criminal justice system.

SAP consultation

The SAP has followed its usual consultation format of asking a series of questions with a view to adopting its provisional position as expressed in the consultation paper or modifying it to reflect the views expressed.

In this instance there are six questions and the paper has been sent to 38 groups for comment. The SAP is happy to be sent comment by any interested party. It points out that the way in which the use of TICs has developed on an essentially pragmatic basis approved by the Court of Appeal, may mean that the process is out of step with the expectations of the public. The public might have difficulty with the reality that a person convicted of one offence might ask for 50 offences to be TIC and be given only the most modest of uplifts to the total sentence. The SAP needs to keep in mind that the public might expect a substantial multiplier to be applied. Given how unlikely that is, there will be a need to explain the reasons with care!

Abuse of TIC

One of the problems in the background is the potential for the TIC process to be abused by those who are anxious to clear up a greater proportion of crime. There has to be a system for control. Most solicitors involved in the criminal justice system have a story of a client doing a drive round and pointing out houses they have burgled. In the event, the list is false as they try to curry favour with police officers who in their turn are trying to deal with clear-up statistics.

The control has to be the corroborative element allied to the admission monitored by senior officers and ultimately by the court. Do defendants realise that in accepting TICs, which will not be recorded as convictions, they are accepting that they will be recorded on their criminal records alongside the main offence?

From the point of view of the victim it is a balance between knowing that the crime has been solved with the concern that 'their' crime has effectively been written off with no penalty imposed. Why is the next door neighbour's break-in worthy of a conviction and prison sentence and theirs is not?

In practice what occurs is that the police make up the list with the defendant and in court it is referred to by the prosecutor. The court then checks that the defendant has accepted the whole or part of the list and, if appropriate, proceeds to announce that they have taken into consideration those matters before determining sentence.

Courts should not accept matters they do not have power to deal with e.g. indictable-only matters in the magistrates court. Usually courts will not TIC matters within their powers if there is a significant discrepancy between the levels of seriousness. Thus a shoplifter will be unlikely to have a burglary TIC.

Matters which carry driving licence endorsement or disqualification will not usually be TIC with matters that do not. The SAP asks whether this approach is the correct one and the answer must be yes. Otherwise absurd juxtapositions will occur giving inappropriate sentencing advantage to the criminal.

Type of sentences

The next question is whether the sentence should always be more severe in a case involving TIC matters. There is no case law confirming this point but it reflects the view of the SAP and reflects common sense. The issue is the methodology for determining the uplift and the exact extent of it in particular cases. Under current practice it is clear that the total sentence will be nowhere near what might have been imposed if the defendant had been dealt with for the TIC offences on separate sentencing occasions. This is all about the totality principle. Thus the overall criminality of the offender might be greater if he has committed more offences but essentially, if he is a burglar he remains a burglar despite committing 10 rather than one burglary of the same type.

Commentators appear to prefer the view that in a case involving TIC matters, the court should keep within the band appropriate to the single offence but aiming higher in the band whilst leaving the higher sentences for the more serious type of offending. Four years might be all right for a multiple burglar. Seven years would be reserved for the much more aggravated offences. The SAP asks if this is the right approach.

A systematic and comprehensible approach to the TIC will be welcome to offenders, lawyers, courts and the informed public.

Knowing where you stand and what the consequences of your decisions will be is always important. The difficulty will be the usual one. Opening up the issue may lead to selective reporting of any plans with a focus on the 50-times offender being given such a similar sentence to the one-time offender. The SGC will need to be mindful of this in the way its press releases explain the propositions.