Abstract
Reviewed by: James Roffee, Monash University, Australia
Two names stand out in English and Welsh sentencing scholarship: Andrew Ashworth, who served as Chair of the Sentencing Advisory Panel before its abolition in 2010, and Julian Roberts, who is a member of the Sentencing Council of England and Wales and Professor of Criminology at the University of Oxford. Their edited collection, Sentencing Guidelines: Exploring the English Model, comprises 16 chapters from acknowledged experts in their relevant fields, and the result is a substantial and important volume on the English and Welsh sentencing guidelines. While much of the material can be found in other works of the authors, there is much to be said for the benefit of having a comprehensive ‘go-to’ source on the English and Welsh system and this collection does not disappoint in that regard.
The introductory chapter by the editors on the Origins and Nature of the Sentencing Guidelines in England and Wales charts the progress from the early days of structured sentencing though guideline judgments, to the latest reforms involving the Coroners and Justice Act 2009 and creation of the Sentencing Council. In Chapter 2, Ashworth examines the history of the interaction between the major players in sentencing policy and practice. With the editors being insiders to many of the working groups and debates taking place, it was hoped this chapter would have shed some novel insights into the meetings; however, this was not the case. Maybe in the next edition?
Notable contributions include Mandeep Dhami’s A ‘Decision Science’ Perspective on the Old and New Sentencing Guidelines in England and Wales. Dhami’s interdisciplinary insights are useful for those looking to understand the mechanics and operation of the guidelines in practice. She provides an excellent critique of the old and new style guidelines and raises concerns about their ability to have the desired impact on sentencing. Dhami’s decision science background allows her to propose further amendments to assist sentencers to achieve their aims and she proposes a move towards flowchart-type guidelines in order to further strengthen the sentencing endeavor. Equally interesting is the contribution from Nicola Padfield, who tackles the question of how to determine if a guideline is successful. Unsurprisingly, Padfield argues that this is no easy task, and that lack of data stymies any attempts to do so. Her conclusion cautions us against making simple suppositions on the success of guidelines, and leaves readers with the sanguine thought that one of the greatest successes is the increased debate in academic literature.
The public understanding of the sentencing endeavour has never been prodigious, particularly for violent crimes such as murder. Barry Mitchell considers the need for comprehensive sentencing guidelines for this offence. The chapter is noteworthy, as the proposed guideline would be for setting the ‘minimum term’ (formerly ‘tariff’) as the offence of murder carries a mandatory sentence of life imprisonment. Mitchell suggests it could help prevent courts from imposing disproportionate and unjustified sentences and mitigate the problems caused by inadequate statutory provisions. Such a guideline would also allow for greater public understanding of how and why life sentences for murder (minimum terms) do not amount to life.
Mike Hough and Amy Kirby argue that although there should be a degree of alignment between sentencing practice and public opinion, the aim of the guidelines should be to deliver a sentence that secures public tolerance of court practice. Their research in the Role of Public Opinion in Formulating Sentencing Guidelines suggests sentencing policy is best influenced by public opinion of culpability and seriousness as opposed to the level of punishment. Their foreseeable conclusion is that using public opinion in guideline creation is a difficult and risky task.
Tom O’Malley looks at the example of the Irish Republic and questions the ability of progressive legal systems to live without guidelines. O’Malley cautions against an abrupt transition from barely constrained discretion to a system of guidelines. Cyrus Tata uses Scotland to analyse whether English and Welsh guidelines will spread and raises the interesting idea that only a threat to the judicial ownership of sentencing will prompt change.
Warren Young and Andrea King authored The Origins and Evolution of Sentencing Guidelines: A Comparison of England and Wales and New Zealand which offers an in abstracto assessment of the effectiveness of, and comparison to, a sentencing system that is not yet operational. Equally interesting is the contribution from Kevin R. Reitz, who questions whether the US Systems Have Anything Worthwhile to Offer England and Wales? In stark contrast to England, the US sentencing system has been used to ensure consistency in outcomes, and in particular to control prison populations. Even so, Reitz details some interesting similarities in shifts in culture, including the view that sentencing decisions are more momentous and more deserving of argument and deliberation than in the pre-guidelines era.
While the international dimension within a number of chapters adds to the richness of the collection, their presence in this volume does little to further exploration of the English Model. Any added value from the international dimension comes from the ability for the contribution to spark thought and seed ideas and suggestions on how England and Wales can further strengthen their guidelines.
Other chapter contributions include Neil Hutton’s understandings of the performance of justice in the guideline on assault, Ian Edwards on Victims and John Cooper on personal mitigation in sentencing. Julian Roberts authors the essay on compliance with sentencing guidelines and co-authors with Hannah Maslen on the impact of remorse. The volume draws to a close with an almost mandatory chapter on the impact of the European Union by Estella Baker.
Sentencing may not be one of the most glamorous parts of the criminal justice system, however this collection highlights its varied nature and dynamic operation. The volume draws together fascinating insights into sentencing, and is, as the cover suggests, of interest to “academics from law, sociology and criminology, legal practitioners and indeed anyone else with an interest in sentencing, around the world.”