General Reading

Sir Igor Judge’s Speech, ‘The Sentencing Decision’. Judge (2005)

• First crime was committed in the Garden of Eden; Adam knew he was not supposed to eat the apple but he did anyway. Punishment was being banished from the Garden of Eden - seems a bit disproportionate, such a harsh crime just for stealing an apple! But he was not just simply eating the apple - he wanted to gain power that would give him a God-like status. And what about Eve? What punishment did she deserve? She was led astray by Adam who knew the full implications, while she did not fully understand. Was either of them more culpable? No, they were both held just as culpable as each other. Did the sentence do them any good?

  • Their children went on to commit the first murder. The mitigation would probably include the criminal background of the parents. This would not have happened had they not been expelled from Paradise. The sentence was too severe.

• In community there is a profound unease surrounding crime, a fear and concern about sentencing decisions handed down in court.

  • BCS 2004, 76% of those surveyed thought sentences were too lenient. Judge says this is alarming, it suggests that judges, (who are, remember, public servants) are not doing their job properly.

  • Statistics say the majority of the population overestimate the amount of violent crime.

  • Comparison is made between two newspapers which detail changes in crime levels, when compared they show very inconsistent findings. Clearly something is wrong.

• Lord Bingham has noticed that while the prison population is up, and judges and magistrates have been sending more and more people to prison, they are being criticised for handing down more lenient sentences! This does not add up. Furthermore, the UK has one of the highest custodial sentencing rates in Europe!

• S142 CJA 2003 - purposes of sentencing

  • punishment

  • crime reduction (including by deterrence)

  • rehabilitation

  • public protection

  • reparation

• These purposes have to be balanced in the sentencing decision, and the problem is that they are not always consistent and may actually conflict.

• First, the nature of the crime must be considered, in the light of contemporary society.

  • Compares the penalty for blasphemy during Henry VIII’s Parliament (boiling alive) and now, it’s not considered a crime at all.

  • Also consider the culture, and the community which the judges serve. Notes an Indian case where a man shot his wife’s lover, judges were shocked that a prison sentence was even being considered, because it was thought that he was protecting the honour of his family. Judges must reflect the views of the community which they serve.

• S143 determines the seriousness of the offence.

  • Consider culpability, harm caused (or harm that might foreseeably have been caused), and where there are previous convictions the court may consider this an aggravating factor where it is relevant to the current offence.

  • Uses the example of two drivers; one has been drinking heavily and is driving dangerously, but luckily he causes no harm on the roads. Another driver is driving perfectly normally, but because his children are being loud in the back and his wife is unwell he is not paying full attention and causes an accident. He is guilty of causing death by dangerous driving, whereas the first driver is not guilty of anything at all. But who is morally more to blame?

  • Parliament has made it clear that where there is ACTUAL harm there is a higher level of culpability.

• The victim.

  • Note, this is talking about the IMPACT on the victim, not the wishes, as the court is not exacting private revenge. Cannot give any weight to the level of forgiveness the victim is willing to exercise.

• The defendant.

  • A human with emotions, consider the level of remorse, whether there are tears in the court room (tears of remorse or self-pity?) etc.

• Judge takes quite a religious approach to sentencing. Takes the view that one day we will all have to face a judge of higher authority than any judge on Earth, who will have to weight our thoughts and virtues in the balance.

• When a judge imposes a non-custodial sentence he has to consider how that will be perceived. It is for this reason that reasons must be given, particularly where the sentence appears to be unduly lenient.

• 5 main problems with perception that judges are overly-lenient.

  • Victims will think that nothing will happen to the offender, so they will not bother reporting the crime. Offender will get away with it!

  • Fear of crime will increase, this is socially destructive.

  • If individuals do not think the courts are dealing with the punishment of the offender appropriately, victims may take the law into their own hands and conduct acts of revenge.

  • Growing division between community and judiciary (who exist to SERVE the community).

  • Where there is fear of unpunished crime, there may be willing acceptance of measures which curtail individual liberties, said to be “necessary” for public perception.

• Conclusion: perception is critical. The judge has a very difficult task in weighing the purposes of sentencing and conflicting interests, in order to determine the best outcome for each case. Not an job, but that is how the sentencing decision is made. (Bit of an underwhelming ending....)

‘Competing conceptions of modern desert: vengeful, deontological, and empirical’ Robinson, P. H. (2008).

• Desert refers to deserved punishments and is often called doing justice, retributive punishment and just punishment.

• CJA 2003 refers to desert as only one of 5 purposes of sentencing in s142, and the Act is muddled by the apparent focus on proportionality as the central principle in s143 and also by the SGC.

• One of the central criticisms of desert in English law is that it would seem to fail to avoid avoidable crimes. Whereas in the US it is considered inappropriate for other reasons, namely that it is overly harsh and favours prison above all.

• Article argues that the objections are valid, but...

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