Criminal Law Review special issue on sentencing

This year marks the fiftieth anniversary of the publication of David Thomas’s Principles of Sentencing and J.E. Hall Williams’s The English Penal System in Transition. The first edition of Rupert Cross’s The English Sentencing System came hot on their heels in 1971. Thomas’s book, and especially the second edition published in 1979, has been by far the most influential of these, and it continues to used throughout the common-law world. The same, indeed, is true of his classic article “Establishing a factual basis for sentencing” [1970] Crim. L.R. 80. This year also happens to be the tenth anniversary of the English Sentencing Council established under the Coroners and Justice Act 2009. To mark these anniversaries, and that of David Thomas’s book in particular, the Criminal Law Review has devoted its most recent issue (Issue 5 of 2020) to sentencing.

This issue has a fine collection of articles by leading experts in the field. The contents (in addition to the usual notes and commentaries on recent cases) are as follows: Editorial (David Ormerod), “Sentencing in transition: Recent developments” (Lyndon Harris and Julian Roberts); “The Sentencing Council: Reflections on its tenth anniversary” (Tim Holroyde); “The evolution of sentencing: Some judicial reflections” (Sir John Saunders and Sir David Calvert-Smith); “Issues in sentencing procedure” (Martin Wasik and Andrew Ashworth); “Sexual harm prevention orders and necessity” (Rory Kelly and Judge Martin Picton); “Epilogue: Shaping the future of sentencing” (Nicola Padfield). In the last article, Padfield comments on the other contributions and, overall, she is less optimistic than most of them about the present state and likely trajectory of English sentencing. She rightly underscores the need to interrogate widely used concepts such as “consistency”. As she says, consistency does not exist in a vacuum and “you can be consistently wrong, as well as consistently right”. She also stresses the need to consider sentences in their totality, with account being taken of early release provisions (which are now exceedingly complex in England and Wales) and the entire raft of additional orders, usually designed to prevent re-offending but which may have quite a punitive impact, to which offenders may be subject. In this respect, she refers back to the Kelly and Picton article on sexual harm prevention orders.

Sentencing developments in England and Wales, and especially the work of the Sentencing Council, are now of considerable interest here in Ireland where the Judicial Council Act 2019 provides for the development of formal sentencing guidelines. The same holds true of developments in Scotland where guidelines are also being introduced. As I outlined in a recent article, some of the key provisions of the 2019 Act are clearly modelled on the English legislation establishing the Sentencing Council and its predecessor, the Sentencing Guidelines Council. ( “Sentencing guidelines, legal transplants and an uncertain future” (2019) 29:4 Irish Criminal Law Journal 94). What kind of synergy will develop between the Judicial Council (which is responsible for the adoption of sentencing guidelines), the Court of Appeal and Supreme Court remains to be seen. From a comparative perspective, Andrew Ashworth’s “The evolution of English sentencing guidance in 2016” [2017] Crim. L.R. 507 makes for interesting reading on this topic.

Aside altogether from guidelines, the article by Wasik and Ashworth on sentencing procedure in the most recent issue of the Criminal Law Review will be of great interest in this jurisdiction as it deals mainly with fact-finding at sentencing, including the burden and standard of proof, Newton hearings and evidence of local prevalence of crime. These are matters with which our courts often have to grapple as reflected, for example, in People (DPP) v Mahon [2019] IESC 24 which dealt with sentencing for manslaughter in circumstances where there was more than one basis on which the jury might have reached its verdict.

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