Tribute to a great sentencing conference – 21 years on

Writing in a very recent post about Professor Cyrus Tata’s fantastic new book, Sentencing: A Social Process reminded me of a great sentencing conference he and his colleague Professor Neil Hutton organised exactly 21 years ago at Strathclyde University in Glasgow. It was, to the best of my knowledge, the first major international conference on sentencing, in recent history at least. How many attendees they initially hoped to attract I don’t know, but they must have been gratified when more than 120 turned up from all over the world. People came from several continental European countries, the United States, Australia, Canada, China and, of course, from many parts of Britain itself.

During that three-day conference in June 1999, we had an extraordinary array of lectures, presentations, seminars and discussions on all aspects of sentencing, many of them given or led by top international scholars in the field. A selection of the papers delivered was later published in book form: Tata and Hutton (eds), Sentencing and Society: International Perspectives (Ashgate, 2002). It is still available from Amazon in kindle, hardback and paperback forms, and well worth having because it has so many contributions of enduring value. Of course, there was a social side as well. I recall one particularly enjoyable evening at Babbity Bowster, a great Glasgow institution I would never fail to revisit when given the opportunity. Throughout the conference, we were treated with great hospitality, and the general atmosphere made it a tremendously enjoyable as well as a highly instructive event.

The conference had far-reaching results in some important ways. Before that, most of us had probably heard of one another and, as already mentioned, the attendees included some leading scholars with whose work we would all have been familiar. But the conference gave us an opportunity to get to know one another. Many of us have remained in contact ever since. There was a second such conference in 2002, also in Strathclyde, and that, if I recall correctly, was even better attended. However, as a result of the 1999 conference, what started as a small group of us began to meet for informal seminars once or twice a year in different locations throughout Europe. We now meet mainly as a specialised group of the European Society of Criminology, and our number has grown to more than 100. Over the years, we have had great meetings at Strathclyde itself, Leiden, Oxford, Dublin, Barcelona, Como, Reims and elsewhere.

Let me just mention two further aspects of the 1999 conference, one with an Irish dimension, the other of more universal application.

On the first afternoon of the conference we had a presentation on the Scottish Sentencing Information System which had just then been established. Neil and Cyrus, working in close collaboration with senior members of the Scottish judiciary, had played a leading role in its development. The idea was to provide judges, by means of an easily searchable computerised data base, with reliable information on existing sentencing practice for the more commonly prosecuted offences. It occurred to me that something similar might be useful in Ireland and so, on my return, I began to canvass the views of judges, government officials and others. It took a long time to get anywhere with it, but eventually, thanks largely to the energy and enthusiasm of Judge Susan Denham, later Chief Justice, a steering committee was put together. We managed to get some funds, very limited it must be said, but better than nothing and, to cut a long story short, the Irish Sentencing Information System was established. I was rather chuffed at being able to suggest that it should be called ISIS. She, after all, was the ancient goddess of life and magic but, for reasons readers will understand, that abbreviation had to be quietly dropped in later years. Cyrus Tata gave us great help in establishing the system and came to Dublin for meetings on a few occasions. For an excellent account of the system while it was operating, see Brian Conroy and Paul G Gunning, “The Irish Sentencing Information System (ISIS): A Practical Guide to a Practical Tool” [2009] Judicial Studies Institute Journal 37-53. The Judicial Council Act 2019 now provides for the establishment of a Sentencing Guidelines and Information Committee. So, it took 20 years, but when God made time he made lots of it.

Something else I took away from the 1999 conference was a renewed appreciation and understanding of the value of comparative law. Most of the attendees had already published on sentencing in their own jurisdictions. Reading some of that work, especially from faraway countries, one might be inclined to conclude that it had little relevance to one’s own system. However, when a group of people from different parts of the world are gathered together in a seminar room or a pub, or huddled together during a coffee beak, it quickly becomes apparent that, despite structural, procedural, linguistic and terminological differences, we are all grappling with the same fundamental questions: Why punish offenders? What range of sentencing options should be available to the courts? How much discretion should judges have? What are the most essential distributive principles of sentencing? Is there a role for formal guidelines? Issues like these may not be common to all mankind (in the words of Justinian’s Digest), but they are of central importance in most countries. This, of course, is the key insight of the functional theory of comparative law which eschews comparison of formal legal texts in favour of examining how similar practical problems are addressed in different countries.

This brings me to what was meant to have been a retirement project, except that retirement did not happen quite as planned (I am still around NUI Galway like a bad penny). However, the project remains live and it is a book to be entitled A Common Law of Sentencing. Courts throughout the common-law world, and often beyond it, apply the same general sentencing principles, although they may differ in emphasis and scope of application. What I aim to do in the book is bring together key extracts from 30 to 40 leading cases from different jurisdictions illustrating those principles, with a commentary on each. The criteria for selection are that the case should provide a clear and authoritative statement of the relevant principle, preferably accompanied by a critical analysis, and that it should crystallise the law rather than merely provide a litany of earlier precedents. The project is at an early stage of development. Right now, Canada is leading the field in terms of selected cases. There is one sure Irish candidate, Deaton v Attorney General [1963] I.R. 170, but there will certainly be others. Once my old hunting ground, the IALS on Russell Square in London, re-opens I will be back prowling among its superb collection of printed law reports looking for inspiration. However, it would be great to have some material (which can be translated) from continental European countries as well, or even from further afield. Suggestions about cases that might be included, from common-law jurisdictions and elsewhere, will always be welcome.

So, if big, if belated, thank you to Neil and Cyrus for having organised such a wonderful conference that had such enduring results, and to all who attended back in those days before we ever heard of social distancing.

Finally, you might ask if we could have a similar conference in Ireland. Well, on that score, there is bad news and good news. The bad news is that I had been planning a conference, admittedly on a much smaller scale, in Galway in spring of this year. It was to have concentrated on sentencing guidelines, because of the aforementioned Judicial Council Act, and would have had some superb contributors who had kindly agreed to partcipate. However, it had to be cancelled for obvious reasons. The good news is that it will take place, hopefully in the not-too-distant future, once life is back to normal, or something close to it. In my undergraduate days (roughly around the time of the Beatles’ last LP), the Dean of the Arts Faculty used to comfort us before examinations with the advice that “there is no such thing as failure, only success deferred.” So, roll on a vaccine!

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