Plans for an American-style sentencing “grid” to control prison numbers appear doomed because of overwhelming opposition from the judiciary.

Judges at all levels, as well as the Magistrates' Association, have dealt a devastating blow to the scheme which would have required them to deliver set punishments for specific crimes.

The judges view the plans as wrong in principle and a dangerous inroad into judicial discretion in sentencing.

The Magistrates' Association says that restriction of that discretion would be a retrograde step: “People are individuals. We would regret any change which moved us towards a formulaic or mechanistic approach to sentencing.”

The ideas were put forward by the Labour peer Lord Carter of Coles in a paper last autumn on the efficient use of custody in England and Wales. There were two key proposals: to build more prisons; and to set up a working group to consider the adoption of an American-style sentencing grid system as well as a sentencing commission that would formulate policy, tailoring sentencing guidelines to fit the availablity of prison spaces. The working group, under Lord Justice Gage, has been collating responses. Its report has not yet been published.

The Council of Circuit Judges says: “The American dream would result in a nightmare in England and Wales.” It adds that it would be impossible to devise an American-style sentencing grid that would not be a “blunt instrument resulting in unfairness and injustice”.

The magistrates suggest that some of the proposals “could be seen as an attempt to engineer a reduction in the prison population, rather than to deliver just sentences that fit individual crimes”.

They said: “Consistency of approach to sentencing is needed, not uniformity of sentence.” Consistency is already promoted through the existing sentencing guidelines, they say.

Throughout Lord Carter's paper, they say, there is an implication that “capacity should be the driver for overall assessments of seriousness”, which is “a concept we reject”. There is “scant recognition” of the current system of guidelines. The research on differing models for a sentencing structure was narrow, they say, weighted heavily in favour of a system in Minnesota that takes no account of the victim or the offender's circumstances.

Senior judges from the Court of Appeal are also strongly opposed.

Dr David Thomas, a sentencing expert, says that if guidelines are to control sentencing, they would “must inevitably be crude and mechanistic”. It would “inevitably mean, for instance, that every offender convicted of causing death by dangerous driving would receive the same sentence, irrespective of the circumstances of the offence and the nature of his driving”.

The only differentiating factor would be previous convictions and for the most part these would be for unrelated offences.

Michael Zander, Emeritus Professor of Law at the London School of Economics, who has analysed the responses in the New Law Journal, said that the plans had met with “an avalanche of withering comments”. Lord Carter had failed even to mention the New Zealand model, which was “way ahead” in reform of sentencing.

Not one of the bodies or academics who responded to the paper supported it, Professor Zander said. “They rubbished it. The idea is dead in the water.”

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