Chapter 6
Conclusion: anomalies in the maximum penalty structure

6.1Following revisions at Step 6, we arrived a final ranking of the offences in the five main criminal statutes that were the subject of the review, and the penalty categories into which they have been placed. This is set out in detail in Appendix D.

6.2The ranking can be no more than a rough guide to anomalies in current maximum penalties. There are several reasons for that.

6.3In the first place, when we were ranking and grouping offences, it became apparent that our methodology did not work particularly well in differentiating between offences at the bottom end of the spectrum of seriousness or, to put it another way, did not provide what we intuitively regarded as correct rankings. That is undoubtedly because the scores on various interests affected by those offences were all low, the overall scores were accordingly also low, and the differences between the scores were therefore a poor guide to the relative seriousness of the offences to which they related. The methodology we employed did serve to show whether the offences rightly belonged in the bottom two penalty categories – and, as we shall see, did point to one or two obvious anomalies – but was not sufficiently sensitive to determine into which of those categories the offences should be placed.

6.4Secondly, our methodology, and in particular the relative weighting we gave to particular interests, was inevitably somewhat crude. It was not precise enough to reflect public views of relative seriousness at the margins, and may not have made sufficient adjustment for the overlapping nature of a number of offences.

6.5Thirdly, our worst case scenarios, which were generally hypothetical, may not always have captured the most serious conduct to which the particular offences are directed.

6.6It would therefore be premature simply to conclude all of the offences we have grouped together should have the same maximum penalty ascribed to them. Much more work is required before firm conclusions can be drawn about the appropriate placement of offences within the hierarchy of seriousness. In particular, it would be desirable to have more detailed data on: recent sentencing patterns in relation to each offence; the types of cases in which the most severe sentence has been imposed, and whether this equates to, or approaches, the seriousness of the worst case scenario upon which our penalty categorisation has been based; and the extent to which sentences near to the maximum have been imposed.

6.7Of course, as discussed above at paragraphs 4.48–4.53, current sentencing data would not in itself determine whether change is required. Nevertheless, as we have said, at a minimum current sentencing data may directly demonstrate a potential problem in two ways. If sentences close to the maximum are never being imposed for offences that appear to be amongst the worst of their kind, or if there is a very large gap between the most severe sentence recently imposed and the maximum penalty, that is a strong indicator judges find the current maximum, in relativity terms, too high. Conversely, if there is a clustering of sentences near to the maximum, that is a strong indicator judges do not think that the current maximum allows sufficient room to differentiate between one offence and another, and therefore find it too low. In either case, this would point to the need for reform.

6.8Until this type of analysis is done, any conclusions drawn from our analysis to date must necessarily be tentative.

6.9Nevertheless, at a general level our findings do strongly suggest the likelihood there are substantial anomalies in current maximum penalties: some, relative to others, are too high or too low; like cases are not being treated alike; and cases differing significantly in terms of seriousness are not being sufficiently differentiated. In our view, this demonstrates more work is needed, and a wholesale revision of maximum penalties to ensure fairness in sentencing practice is required.

6.10In addition to this general conclusion, a number of maximum penalties for specific offences in our list in Appendix D are so far out of line with the penalty category in which our methodology has placed them that, even at this stage, it is safe to conclude that they need to be changed.

6.11These maximum penalties fall into a number of discrete categories. We discuss some of them below, but emphasise that they are merely illustrative. Many other offences in the list are clearly out of line with those around them, and some categories (such as Categories J and K) have such a wide dispersal of current maximum penalties they clearly demonstrate the need for a fundamental overhaul.