In a previous post (“England adopts a new sentencing code”, 29 November 2020), I wrote about the English Sentencing Act 2020 which is formally designated as the Sentencing Code. This was the product of a major research and consolidation exercise undertaken by the Law Commission of England and Wales under the direction of Commissioner (and Professor) David Ormerod whose contribution to English criminal law has been, and continues to be, truly monumental. The two lead researchers for the project were Dr Lyndon Harris and Sebastian Walker who have recently produced a magnificent book, Sentencing Principles, Procedure and Practice 2021 (London: Sweet and Maxwell, 2020). Both authors are now practising barristers, university lecturers and well established scholars, and the (almost) 1800-page volume they have co-authored will become the bible for criminal law practitioners in England and Wales. It will also be an invaluable resource for anyone engaged in sentencing research because of its unrivalled, authoritative account of the current law and its analysis of general sentencing principles and practice. I gather that it is to be an annual publication.
Harris and Walker (as it will doubtless become known) is divided into two main parts. Part A deals with sentencing powers and procedure, The first chapter, running to more than 100 pages, will prove most valuable in any common law jurisdiction, including Ireland, for its coverage of general sentencing principles. The remaining chapters of Part A describe the entire sentencing process in a logical, sequential order beginning with pre-sentence matters and then covering the sentencing hearing, primary disposals (the main sentencing options), secondary orders, the sentencing of children and young persons, mental health disposals and several other topics. For each topic the text of the governing legislation is reproduced. In many instance, this consists of the relevant sections of the Sentencing Code, but a great deal of other legislation is included as well. There is also extensive commentary with reference to appropriate case law.
Part B deals with offences or, more specifically, the approach to be adopted in sentencing the more commonly prosecuted serious offences. By now, most of these are covered by Sentencing Council definitive guidelines but a few are not, in which case the Council’s General Guideline -Overarching Principles should be consulted, as it lists factors that are relevant to a wide range of cases. Case law has greatly diminished in importance because the Court of Appeal (Criminal Division) is now largely concerned with the correct application of the guidelines. Therefore, case law that does not more than illustrate how similar cases were previously sentenced is no longer that relevant or, indeed, welcomed. Harris and Walker neatly summarises the present situation (p. 1154): “if it is not necessary to refer to a case, it is necessary to not refer to it.” But this is not to say that case law has become entirely irrelevant. On the contrary, Court of Appeal judgments continue to cite and analyse earlier authorities. However, case law is now seldom useful unless it helps in the interpretation of a guideline or elucidates some matter not covered by a guideline. Part B of Harris and Walker therefore refers to and summarises a great deal of case law much of which will be very useful to Irish practitioners, especially where it deals with the general approach to the sentencing of specific offences. To take just a few random examples, the case law on false imprisonment and child abduction, weapons and firearms offences, misconduct in public office and money laundering will be very useful for comparative purposes here and elsewhere.
Of even greater value from a comparative perspective are many of the sections in the first chapter dealing with general sentencing principles. Again to take a few random examples, the sections on taking offences into consideration, concurrent and consecutive sentences, the totality principle, double counting in the treatment of aggravating and mitigating factors are particularly useful. Chapter 3 has an excellent and detailed treatment of establishing the factual basis of sentence including the interpretation of jury verdicts, Newton hearings and many related matters which are just as likely to arise here as in England and Wales (see, for example, People (DPP) v Mahon [2019] IESC 24, dealing with the interpretation of jury verdicts).
The final piece of good news is that this book is excellent value at £99 and can be ordered directly from Sweet and Maxwell (London): http://www.sweetandmaxwell.co.uk/
Sentencing, Crime and Justice 