PERSONAL MITIGATION

Personal mitigation plays an important part in sentencing decisions and can be the decisive factor in choosing a community penalty in preference to imprisonment – these are the findings of a unique descriptive study published today. Mitigation: the role of personal factors in sentencing involved observation of sentences passed in the Crown Court and interviews with judges and recorders. It charts the range of personal and social factors that judges take into account in passing sentence.

Our sentencing framework is grounded in proportionality, matching severity of sentence to seriousness of offence. In recent years there has been a new emphasis on aggravating factors in the sentencing of high-risk cases. It also makes sense for sentencers to deviate from proportionality in cases where risks are low. We sentence not just the offence but the offender. As Lord Woolf says in the foreword to this report ‘Justice is best served by an individualized approach to sentencing in which we allow personal mitigation to play a full part’. The authors suggest it is time for the Sentencing Guidelines Council and others to articulate principles of personal mitigation that should inform sentencers’ decision making.

Professor Mike Hough, Kings College London, said,

Sentencing is often about balancing offender and offence-related factors. If justice is to be achieved, sentencing has to be tailored to the individual. Mitigation needs to be recognised more fully as an important element of the sentencing process.

Juliet Lyon, director Prison Reform Trust, said,

This report is about justice not vengeance. And justice can be done, not only by responding to serious risk, but also by taking into account where there is little or no risk.

The study is the second joint enterprise between the Institute for Criminal Policy Research, Kings College London, and the Prison Reform Trust. It was funded by the Esmée Fairbairn Foundation, the Violet and Milo Cripps Charitable Trust and the Scouloudi Foundation. In 2003 the same team published The Decision to Imprison which showed there are two main reasons why the prison population has grown: sentencers are now imposing longer prison sentences for serious crimes, and they are more likely to imprison offenders who 10 years ago would have received a community penalty or even a fine.

You can download the report here

Notes:

Mitigation: the role of personal factors in sentencing

SUMMARY

This report is concerned with personal mitigation: factors which reduce the severity of a sentence, and relate to the offender rather than the offence. It involved observation of sentences passed in the Crown Court, and interviews with judges and recorders.

Key findings are:
• Personal mitigation takes many forms, relating to: the offender’s past;
the offender’s circumstances at the time of the offence; the offender’s
response to the offence and prosecution; and the offender’s present and future.

• Personal mitigation plays an important part in the sentencing decision;
it can be the decisive factor in choosing a community penalty in preference to imprisonment.

• Judges cited at least some factor of personal mitigation as relevant to sentencing in almost half of the 162 cases observed in the study.

• In just under a third of the 127 cases where the judge made the role of mitigation explicit, personal mitigation was a major – usually the major – factor which pulled the sentence back from immediate custody.

• In a just over a quarter of the 127 cases, mitigation including personal factors resulted in a shorter custodial sentence.

• Respondents were asked to rate the importance of different mitigating factors in three cases; they were in agreement about the importance of some forms of personal mitigation, but expressed very mixed views on others.

The researchers conclude that the significance of mitigation in sentencing is not recognised by policy.  They argue that justice is best served by an individualised approach to sentencing which allows personal mitigation to play a full part.  What is needed is consistency of sentencing process – which will not necessarily result in consistency of outcomes for any given offence category. The researchers suggest that there is a need for guidance, for example from the Sentencing Guidelines Council, on the principles of personal mitigation that should – and should not – be incorporated into sentencers’ decision-making.

Read the speech made by Lord Phillips, Lord Chief Justice of England and Wales at the launch of the mitigation study below.