Carly Lightowlers and Jose Pina-Sánchez, Centre for Criminal Justice Studies, University of Leeds

Alcohol intoxication is a frequent factor in violent offending. Whilst the frequent coexistence of alcohol and violence does not evidence a universal or causal link, alcohol’s legal status and widespread availability mean alcohol intoxication (as opposed to drug intoxication) and related offending continue to prove particularly problematic for criminal justice agencies. Despite widespread involvement of alcohol in violent offending and guidance issued by the Sentencing Council (2011) that intoxication aggravates an offence on the basis of its seriousness, little is known about how intoxication impacts sentence outcomes in practice. With reference to assault offences, this study examined: whether intoxication has an aggravating effect; whether this is moderated through other characteristics of the case; and whether any effect is consistent across Crown Court locations.

The study examined data from the Crown Court Sentencing Survey. This survey was set up to monitor the operation and effect of its sentencing guidelines outlined in duties under section 128 of the Coroners and Justice Act 2009. It captures information on both the mitigating and aggravating factors considered by the judge in working out the final sentence dispensed to an offender. In 2011 court identifiers for each of the Crown Court locations in England and Wales were also captured, which is why our analysis focused on these data. The 2011 data captured 14,854 assault offences.

Using these data, the probability of custody and sentence severity were modelled by employing (ordered) logit multilevel models. This enabled an assessment as to whether, holding other factors equal, a custodial or more severe outcome is more probable when intoxication is present. In such models the crime type and the relevant aggravating and mitigating factors mentioned in the guideline were controlled for as were the age and sex of the defendant and whether they plead guilty. Interaction effects were also explored to assess whether: the role of intoxication was moderated by crime type; the aggravation of intoxication was being moderated using the mitigation due to the behaviour ‘being out of character’; the offence being an ‘isolated incident’; or where the offender is deemed to be taking steps to address their addiction or offending behaviour. A random intercept was introduced into all binary and ordered logit models to account for the inherent clustering of cases within Crown Court locations. Finally, a random slope was introduced to specifically assess the extent to which the effect of intoxication is being consistently applied across Crown Court locations.

Our findings firstly confirmed an aggravating effect of intoxication on both the probability of custody and sentence severity. Secondly, they identified a significant moderating effect of an offence being isolated incident on the effect of intoxication which operates to ensure aggravation is still present but at a lesser level. Finally, findings from this study point to reasonably consistent prevalence and influence of the presence of intoxication as an aggravating factor across Crown Court locations.

The consistency with which intoxication is applied across locations calls into question whether further prescriptive guidance is necessary in structuring sentencing regarding this aggravating factor. However, whilst relative consistency may be the case in practice currently, this does not mean that inconsistency does never and could never occur: especially as sentencing practice reflects wider social norms held in relation to alcohol use. Thus, ongoing monitoring of how intoxication shapes sentencing practice it is encouraged to ensure transparency and accountability as well as that inconsistency does not ‘creep’ in as the new Sentencing Council Guidelines become ‘old news’.

Further guidance in relation to the contentious factor of intoxication, would need to be considered both in relation to the principal of ‘legal certainty’ as well as the dangers of over formulaic sentencing, which limits the extent to which a sentence can be tailored to the offender and is likely to have tangible impacts on rehabilitation and reoffending rates. The Sentencing Council may wish to consider clarifying how the guidance in relation to intoxication ought to be applied in practice: namely, how much intoxication ought to aggravate a sentence and/or in which circumstance this ought to be moderated by other characteristics of the case. Ideally, in so doing, it would also take the opportunity to formally justify its position on treating intoxication as an aggravating factor.

For more information see Lightowlers C. and Pina-Sánchez J. (2016). Intoxication and assault: an analysis of Crown Court sentencing practices in England and Wales. British Journal of Criminology. Online first, https://academic.oup.com/bjc/article-abstract/doi/10.1093/bjc/azx008/3056167/Intoxication-and-assault-an-analysis-of-Crown?redirectedFrom=fulltext