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Volumn 1998, Issue 7, 1998, Pages 465-477

The place of public opinion in sentencing law

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EID: 3042959780     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article
Times cited : (8)

References (53)
  • 1
    • 0005003781 scopus 로고
    • Harvard University Press
    • Commonwealth v. Louise Woodward, Memorandum and Order, November 19, 1997. Judge Zobel was well acquainted with the work of John Adams having published (with L.K. Roth) a three-volume collection of his papers (The Legal Papers of John Adams (1965, Harvard University Press)) as well as a book entitled The Boston Massacre (1970, Norton).
    • (1965) The Legal Papers of John Adams
  • 2
    • 3042939043 scopus 로고
    • Norton
    • Commonwealth v. Louise Woodward, Memorandum and Order, November 19, 1997. Judge Zobel was well acquainted with the work of John Adams having published (with L.K. Roth) a three-volume collection of his papers (The Legal Papers of John Adams (1965, Harvard University Press)) as well as a book entitled The Boston Massacre (1970, Norton).
    • (1970) The Boston Massacre
  • 3
    • 3042937179 scopus 로고    scopus 로고
    • note
    • For a special case where this is not true, see Part 3 of this article (discussing the Home Secretary's role in setting a "tariff" for "mandatory lifers").
  • 4
    • 3042861171 scopus 로고    scopus 로고
    • note
    • It is interesting to ask whether the practice of requiring judges to swear an oath before taking office adds anything to their judicial duties. Would any of the duties that currently bind the judiciary cease to apply if an Act of Parliament were introduced abolishing the practice of oath giving?
  • 6
    • 3042859289 scopus 로고    scopus 로고
    • Although over the last 16 years Parliament has shown greater willingness to intervene in sentencing matters: see, for instance, the Criminal Justice Act 1982, the Criminal Justice Act 1991, and the Crime (Sentences) Act 1997
    • Although over the last 16 years Parliament has shown greater willingness to intervene in sentencing matters: see, for instance, the Criminal Justice Act 1982, the Criminal Justice Act 1991, and the Crime (Sentences) Act 1997.
  • 7
    • 3042900019 scopus 로고    scopus 로고
    • 2nd ed. (1996)
    • 2nd ed. (1996).
  • 8
    • 3042933250 scopus 로고    scopus 로고
    • ibid. at para. 6.18. One might question whether a Whitehall circular is a legally recognised source of sentencing law
    • ibid. at para. 6.18. One might question whether a Whitehall circular is a legally recognised source of sentencing law.
  • 9
    • 84895238725 scopus 로고
    • See, for instance, Elizabeth Burney's research into the effects of the Criminal Justice Act 1982 (Sentencing Young People: What Went Wrong With The Criminal Justice Act 1982? (1985)) which revealed that many magistrates were breaking the law by failing to follow the statutory sentencing formula and by failing to record reasons as the statute required.
    • (1985) Sentencing Young People: What Went Wrong with the Criminal Justice Act 1982?
  • 10
    • 0040738332 scopus 로고
    • Public Opinion, Crime Seriousness and Sentencing Policy
    • Compare 28 U.S.C., 1988, s.994(c)(4)-(5) which requires the United States Sentencing Commission to determine the relevance of "the community view of the gravity of the offense" and "the public concern generated by the offense" when establishing its guidelines. For a discussion, see D. Golash and J. Lynch, "Public Opinion, Crime Seriousness and Sentencing Policy" (1995) 22 Am. J. Crim. L. 703.
    • (1995) Am. J. Crim. L. , vol.22 , pp. 703
    • Golash, D.1    Lynch, J.2
  • 11
    • 3042939041 scopus 로고
    • (1974) 60 Cr. App. R. 74.
    • (1974) Cr. App. R. , vol.60 , pp. 74
  • 13
    • 3042898157 scopus 로고    scopus 로고
    • ibid
    • ibid.
  • 14
    • 0041937946 scopus 로고
    • Does the severity of sentences affect public disapproval? An experiment in England
    • Walker and Hough (eds)
    • For an experiment testing the possible effect of sentences on the public's disapproval of defendants' behaviour, see N. Walker and C. Marsh, "Does the severity of sentences affect public disapproval? An experiment in England", included in Walker and Hough (eds), Public Attitudes to Sentencing: Surveys from Five Countries (1988).
    • (1988) Public Attitudes to Sentencing: Surveys from Five Countries
    • Walker, N.1    Marsh, C.2
  • 15
  • 17
    • 3042980093 scopus 로고    scopus 로고
    • note
    • This theory has both positive and negative aspects: the former emphasises the need to build up public abhorrence of the prohibited activity; the latter emphasises the need to ensure that public disapproval of the prohibited activity does not diminish or perhaps even disappear.
  • 18
    • 3042974447 scopus 로고
    • (1988) 10 Cr. App. R. (S.) 495.
    • (1988) Cr. App. R. (S.) , vol.10 , pp. 495
  • 19
    • 3042970625 scopus 로고    scopus 로고
    • ibid. at p.497, per Watkins L.J., who gave the opinion of the Court
    • ibid. at p.497, per Watkins L.J., who gave the opinion of the Court.
  • 20
    • 3042868844 scopus 로고    scopus 로고
    • ibid. at p.498
    • ibid. at p.498.
  • 21
    • 3242774821 scopus 로고    scopus 로고
    • Sentencing and the Climate of Opinion
    • See, e.g. Andrew Ashworth and Mike Hough, "Sentencing and the Climate of Opinion" [1996] Crim.L.R. 776, at p.785 (the two "major difficulties" with the concept of public opinion are (i) that "members of the public have insufficient knowledge of actual sentencing practices"; and (ii) that "there is a significant but much-neglected distinction between people's sweeping impressions of sentencing and their views in relation to particular cases of which they know the facts"). See also Julian Roberts and Michael Hough, "Public Attitudes Towards Sentencing In Britain" (1998) 10 Fed. Sent. R. 291.
    • (1996) Crim.L.R. , pp. 776
    • Ashworth, A.1    Hough, M.2
  • 22
    • 3042940931 scopus 로고    scopus 로고
    • Public Attitudes Towards Sentencing in Britain
    • See, e.g. Andrew Ashworth and Mike Hough, "Sentencing and the Climate of Opinion" [1996] Crim.L.R. 776, at p.785 (the two "major difficulties" with the concept of public opinion are (i) that "members of the public have insufficient knowledge of actual sentencing practices"; and (ii) that "there is a significant but much-neglected distinction between people's sweeping impressions of sentencing and their views in relation to particular cases of which they know the facts"). See also Julian Roberts and Michael Hough, "Public Attitudes Towards Sentencing In Britain" (1998) 10 Fed. Sent. R. 291.
    • (1998) Fed. Sent. R. , vol.10 , pp. 291
    • Roberts, J.1    Hough, M.2
  • 23
    • 3042943062 scopus 로고    scopus 로고
    • Recognising Elephants: The Problem of the Custody Threshold
    • For a discussion of this possibility in the context of the custody threshold embodied in s.1(2)(a) of the Criminal Justice Act 1991, see Andrew Ashworth and Andrew von Hirsch, "Recognising Elephants: The Problem of the Custody Threshold" [1997] Crim.L.R. 187.
    • (1997) Crim.L.R. , pp. 187
    • Ashworth, A.1    Von Hirsch, A.2
  • 24
    • 3042896244 scopus 로고    scopus 로고
    • See, for example, Harvey [1997] 2 Cr.App.R.(S.) 306, at p.308, per Clarke J.: ". . . in considering whether a sentence of five years' imprisonment was manifestly excessive, we must take account not only of the factors relevant to this appellant . . . but also the wider considerations which reflect the justifiable public concern about the supply of ecstasy which has been emphasised in a series of cases."
    • (1997) Cr.App.R.(S.) , vol.2 , pp. 306
    • Harvey1
  • 25
    • 3042942830 scopus 로고
    • (1995) 16 Cr.App.R.(S.) 418, at p.421. In this case the Court increased sentences imposed on two offenders for causing grievous bodily harm with intent from nine months' to two years' imprisonment. The victim, the boyfriend of the first offender's daughter, had been attacked because he had assaulted the daughter, causing bruising to her face and body.
    • (1995) Cr.App.R.(S.) , vol.16 , pp. 418
  • 26
    • 3042903862 scopus 로고    scopus 로고
    • [1997] 2 Cr.App.R.(S.) 194, at p.197. Here a two-year probation order that had been imposed on a 17-year old youth for robbery was quashed and replaced by a sentence of nine months' detention in a young offender institution.
    • (1997) Cr.App.R.(S.) , vol.2 , pp. 194
  • 27
    • 3042940933 scopus 로고    scopus 로고
    • [1997] 2 Cr.App.R.(S.) 198, at pp.201-202. A six-month sentence for wounding with intent to cause grievous bodily harm imposed on a defendant who, during the course of a violent altercation, bit the ear of his victim down to the cartilage was increased by the Court of Appeal to two years' imprisonment.
    • (1997) Cr.App.R.(S.) , vol.2 , pp. 198
  • 28
    • 3042903863 scopus 로고
    • Attorney-General's Reference Nos 21, 22 and 23 of 1993 (Venables, Churms and Ashcroft)
    • See also Attorney-General's Reference Nos 21, 22 and 23 of 1993 (Venables, Churms and Ashcroft) (1994) 15 Cr.App.R.(S.) 741, at p.744, per Lord Taylor C.J.; Attorney-General's Reference No. 30 of 1993 (Saunders) (1995) 16 Cr.App.R.(S.) 318, at p.321, per Ognall J.; Attorney-General's Reference No. 34 of 1995 (George Williams) [1996] 1 Cr.App.R.(S.) 386, at p.388, per Auld L.J.; Attorney-General's Reference Nos 17 and 18 of 1996 (Wardle and Iseton) [1997] 1 Cr.App.R.(S.) 247, at p.250, per Lord Bingham C.J.; and Attorney-General's Reference No. 45 of 1996 (Humphries) [1997] 1 Cr.App.R.(S.) 429, at p.433, per Kennedy L.J.
    • (1994) Cr.App.R.(S.) , vol.15 , pp. 741
  • 29
    • 3042898158 scopus 로고
    • Attorney-General's Reference No. 30 of 1993 (Saunders)
    • See also Attorney-General's Reference Nos 21, 22 and 23 of 1993 (Venables, Churms and Ashcroft) (1994) 15 Cr.App.R.(S.) 741, at p.744, per Lord Taylor C.J.; Attorney-General's Reference No. 30 of 1993 (Saunders) (1995) 16 Cr.App.R.(S.) 318, at p.321, per Ognall J.; Attorney-General's Reference No. 34 of 1995 (George Williams) [1996] 1 Cr.App.R.(S.) 386, at p.388, per Auld L.J.; Attorney-General's Reference Nos 17 and 18 of 1996 (Wardle and Iseton) [1997] 1 Cr.App.R.(S.) 247, at p.250, per Lord Bingham C.J.; and Attorney-General's Reference No. 45 of 1996 (Humphries) [1997] 1 Cr.App.R.(S.) 429, at p.433, per Kennedy L.J.
    • (1995) Cr.App.R.(S.) , vol.16 , pp. 318
    • Lord Taylor, C.J.1
  • 30
    • 3042896243 scopus 로고    scopus 로고
    • Attorney-General's Reference No. 34 of 1995 (George Williams)
    • See also Attorney-General's Reference Nos 21, 22 and 23 of 1993 (Venables, Churms and Ashcroft) (1994) 15 Cr.App.R.(S.) 741, at p.744, per Lord Taylor C.J.; Attorney-General's Reference No. 30 of 1993 (Saunders) (1995) 16 Cr.App.R.(S.) 318, at p.321, per Ognall J.; Attorney-General's Reference No. 34 of 1995 (George Williams) [1996] 1 Cr.App.R.(S.) 386, at p.388, per Auld L.J.; Attorney-General's Reference Nos 17 and 18 of 1996 (Wardle and Iseton) [1997] 1 Cr.App.R.(S.) 247, at p.250, per Lord Bingham C.J.; and Attorney-General's Reference No. 45 of 1996 (Humphries) [1997] 1 Cr.App.R.(S.) 429, at p.433, per Kennedy L.J.
    • (1996) Cr.App.R.(S.) , vol.1 , pp. 386
    • Ognall, J.1
  • 31
    • 3042939040 scopus 로고    scopus 로고
    • Attorney-General's Reference Nos 17 and 18 of 1996 (Wardle and Iseton)
    • See also Attorney-General's Reference Nos 21, 22 and 23 of 1993 (Venables, Churms and Ashcroft) (1994) 15 Cr.App.R.(S.) 741, at p.744, per Lord Taylor C.J.; Attorney-General's Reference No. 30 of 1993 (Saunders) (1995) 16 Cr.App.R.(S.) 318, at p.321, per Ognall J.; Attorney-General's Reference No. 34 of 1995 (George Williams) [1996] 1 Cr.App.R.(S.) 386, at p.388, per Auld L.J.; Attorney-General's Reference Nos 17 and 18 of 1996 (Wardle and Iseton) [1997] 1 Cr.App.R.(S.) 247, at p.250, per Lord Bingham C.J.; and Attorney-General's Reference No. 45 of 1996 (Humphries) [1997] 1 Cr.App.R.(S.) 429, at p.433, per Kennedy L.J.
    • (1997) Cr.App.R.(S.) , vol.1 , pp. 247
    • Auld, L.J.1
  • 32
    • 3042972557 scopus 로고    scopus 로고
    • Attorney-General's Reference No. 45 of 1996 (Humphries)
    • See also Attorney-General's Reference Nos 21, 22 and 23 of 1993 (Venables, Churms and Ashcroft) (1994) 15 Cr.App.R.(S.) 741, at p.744, per Lord Taylor C.J.; Attorney-General's Reference No. 30 of 1993 (Saunders) (1995) 16 Cr.App.R.(S.) 318, at p.321, per Ognall J.; Attorney-General's Reference No. 34 of 1995 (George Williams) [1996] 1 Cr.App.R.(S.) 386, at p.388, per Auld L.J.; Attorney-General's Reference Nos 17 and 18 of 1996 (Wardle and Iseton) [1997] 1 Cr.App.R.(S.) 247, at p.250, per Lord Bingham C.J.; and Attorney-General's Reference No. 45 of 1996 (Humphries) [1997] 1 Cr.App.R.(S.) 429, at p.433, per Kennedy L.J.
    • (1997) Cr.App.R.(S.) , vol.1 , pp. 429
    • Lord Bingham, C.J.1
  • 33
    • 4243155361 scopus 로고    scopus 로고
    • H.L.
    • See, for example, House of Lords Select Committee, Report of the Select Committee on Murder and Life Imprisonment, H.L. 78, 1988-1989; House of Commons Home Affairs Committee, Murder: The Mandatory Life Sentence, H.C. 111, 1995-1996 , and Murder: The Mandatory Life Sentence (Supplementary Report), H.C. 412, 1995-1996; Prison Reform Trust, Report of the Committee on the Penalty for Homicide, 1993; Lord Windlesham, "Life Sentences: The Case for Assimilation" [1996] Crim.L.R. 250; and Louis Blom-Cooper and Terence Morris, "The Penalty for Murder: A myth exploded" [1996] Crim.L.R. 707.
    • (1988) Report of the Select Committee on Murder and Life Imprisonment , pp. 78
  • 34
    • 4243155361 scopus 로고    scopus 로고
    • H.C.
    • See, for example, House of Lords Select Committee, Report of the Select Committee on Murder and Life Imprisonment, H.L. 78, 1988-1989; House of Commons Home Affairs Committee, Murder: The Mandatory Life Sentence, H.C. 111, 1995-1996 , and Murder: The Mandatory Life Sentence (Supplementary Report), H.C. 412, 1995-1996; Prison Reform Trust, Report of the Committee on the Penalty for Homicide, 1993; Lord Windlesham, "Life Sentences: The Case for Assimilation" [1996] Crim.L.R. 250; and Louis Blom-Cooper and Terence Morris, "The Penalty for Murder: A myth exploded" [1996] Crim.L.R. 707.
    • (1995) Murder: The Mandatory Life Sentence , pp. 111
  • 35
    • 4243155361 scopus 로고    scopus 로고
    • H.C.
    • See, for example, House of Lords Select Committee, Report of the Select Committee on Murder and Life Imprisonment, H.L. 78, 1988-1989; House of Commons Home Affairs Committee, Murder: The Mandatory Life Sentence, H.C. 111, 1995-1996 , and Murder: The Mandatory Life Sentence (Supplementary Report), H.C. 412, 1995-1996; Prison Reform Trust, Report of the Committee on the Penalty for Homicide, 1993; Lord Windlesham, "Life Sentences: The Case for Assimilation" [1996] Crim.L.R. 250; and Louis Blom-Cooper and Terence Morris, "The Penalty for Murder: A myth exploded" [1996] Crim.L.R. 707.
    • (1995) Murder: The Mandatory Life Sentence (Supplementary Report) , pp. 412
  • 36
    • 4243155361 scopus 로고    scopus 로고
    • See, for example, House of Lords Select Committee, Report of the Select Committee on Murder and Life Imprisonment, H.L. 78, 1988-1989; House of Commons Home Affairs Committee, Murder: The Mandatory Life Sentence, H.C. 111, 1995-1996 , and Murder: The Mandatory Life Sentence (Supplementary Report), H.C. 412, 1995-1996; Prison Reform Trust, Report of the Committee on the Penalty for Homicide, 1993; Lord Windlesham, "Life Sentences: The Case for Assimilation" [1996] Crim.L.R. 250; and Louis Blom-Cooper and Terence Morris, "The Penalty for Murder: A myth exploded" [1996] Crim.L.R. 707.
    • (1993) Report of the Committee on the Penalty for Homicide
  • 37
    • 3042874029 scopus 로고    scopus 로고
    • Life Sentences: The Case for Assimilation
    • See, for example, House of Lords Select Committee, Report of the Select Committee on Murder and Life Imprisonment, H.L. 78, 1988-1989; House of Commons Home Affairs Committee, Murder: The Mandatory Life Sentence, H.C. 111, 1995-1996 , and Murder: The Mandatory Life Sentence (Supplementary Report), H.C. 412, 1995-1996; Prison Reform Trust, Report of the Committee on the Penalty for Homicide, 1993; Lord Windlesham, "Life Sentences: The Case for Assimilation" [1996] Crim.L.R. 250; and Louis Blom-Cooper and Terence Morris, "The Penalty for Murder: A myth exploded" [1996] Crim.L.R. 707.
    • (1996) Crim.L.R. , pp. 250
    • Windlesham, L.1
  • 38
    • 4243155361 scopus 로고    scopus 로고
    • The Penalty for Murder: A myth exploded
    • See, for example, House of Lords Select Committee, Report of the Select Committee on Murder and Life Imprisonment, H.L. 78, 1988-1989; House of Commons Home Affairs Committee, Murder: The Mandatory Life Sentence, H.C. 111, 1995-1996 , and Murder: The Mandatory Life Sentence (Supplementary Report), H.C. 412, 1995-1996; Prison Reform Trust, Report of the Committee on the Penalty for Homicide, 1993; Lord Windlesham, "Life Sentences: The Case for Assimilation" [1996] Crim.L.R. 250; and Louis Blom-Cooper and Terence Morris, "The Penalty for Murder: A myth exploded" [1996] Crim.L.R. 707.
    • (1996) Crim.L.R. , pp. 707
    • Blom-Cooper, L.1    Morris, T.2
  • 39
    • 3042940934 scopus 로고    scopus 로고
    • note
    • See s.1(1) of the Murder (Abolition of the Death Penalty) Act 1965. Those aged under 18 when the offence was committed are detained at Her Majesty's pleasure.
  • 40
    • 3042868845 scopus 로고    scopus 로고
    • note
    • That is, those sentenced to life imprisonment for a crime other than murder.
  • 41
    • 84865901980 scopus 로고    scopus 로고
    • R. v. Secretary of State for the Home Department, ex parte Venables and Thompson [1997] 3 W.L.R. 23. In March 1998 Venables and Thompson were granted permission by the European Commission of Human Rights to challenge their trial and sentencing in the European Court of Human Rights: see The Times, March 7, 1998. One of their allegations was that the public nature of the trial together with the intense publicity it attracted and the fact that it was held in an adult court constituted "inhuman and degrading treatment" and so contravened Art. 3 of the Convention. It was also alleged that the Home Secretary's right to set a murderer's tariff breached Art. 6 of the Convention. This guarantees any citizen whose civil rights and obligations are being determined, or who has a criminal charge brought against him, "a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law"
    • R. v. Secretary of State for the Home Department, ex parte Venables and Thompson [1997] 3 W.L.R. 23. In March 1998 Venables and Thompson were granted permission by the European Commission of Human Rights to challenge their trial and sentencing in the European Court of Human Rights: see The Times, March 7, 1998. One of their allegations was that the public nature of the trial together with the intense publicity it attracted and the fact that it was held in an adult court constituted "inhuman and degrading treatment" and so contravened Art. 3 of the Convention. It was also alleged that the Home Secretary's right to set a murderer's tariff breached Art. 6 of the Convention. This guarantees any citizen whose civil rights and obligations are being determined, or who has a criminal charge brought against him, "a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".
  • 42
    • 3042974446 scopus 로고    scopus 로고
    • The Home Secretary let it be known in the Bulger case that, if the two offenders had been adults, he would have been likely to set the tariff at 25 years. As Venables and Thompson were 10 years old when the murder was committed, they were sentenced to be detained during Her Majesty's pleasure (see n.27 above). Being detained at Her Majesty's pleasure was, at that time, very little different to being sentenced to life imprisonment. However, following a recent adverse ruling from the European Court of Human Rights (see Hussain v. United Kingdom (1996) 13 E.H.R.R. 1), the government has been forced to change the law. The result is s.28 of the Crime (Sentences) Act 1997 which assimilates the position of lifers detained during Her Majesty's pleasure with that of discretionary life sentence prisoners and detainees
    • The Home Secretary let it be known in the Bulger case that, if the two offenders had been adults, he would have been likely to set the tariff at 25 years. As Venables and Thompson were 10 years old when the murder was committed, they were sentenced to be detained during Her Majesty's pleasure (see n.27 above). Being detained at Her Majesty's pleasure was, at that time, very little different to being sentenced to life imprisonment. However, following a recent adverse ruling from the European Court of Human Rights (see Hussain v. United Kingdom (1996) 13 E.H.R.R. 1), the government has been forced to change the law. The result is s.28 of the Crime (Sentences) Act 1997 which assimilates the position of lifers detained during Her Majesty's pleasure with that of discretionary life sentence prisoners and detainees.
  • 43
    • 3042980094 scopus 로고    scopus 로고
    • note
    • The Home Secretary received only 33 letters which agreed with the judicial view or asked for a lower tariff to be set.
  • 44
    • 3042866939 scopus 로고    scopus 로고
    • note
    • Lord Steyn, Lord Hope of Craighead, and Lord Goff of Chieveley formed the majority. Lord Lloyd of Berwick (dissenting) came close to saying that the Home Secretary would have been in breach of his duty if he had not taken the petitions and letters into account once they had been placed in his hands: mandatory inclusion. The fifth judge - Lord Browne-Wilkinson - declined to offer a final opinion on the point but his sympathies clearly lay with Lord Lloyd's dissent and not with the majority.
  • 45
    • 3042896245 scopus 로고    scopus 로고
    • [1997] 3 W.L.R. 23 at 41. By contrast, in his dissent, Lord Lloyd doubted the feasibility of differentiating between material "which is directed to penal policy in general" and material which is "directed to a particular case" (at 66). Similarly, Lord Browne-Wilkinson described (at 53) the distinction between "discovering public feeling generally" and taking into account "distasteful public reactions in a particular case" as "too narrow. . . to be workable in practice".
    • (1997) W.L.R. , vol.3 , pp. 23
  • 46
    • 3042896245 scopus 로고    scopus 로고
    • [1997] 3 W.L.R. 23 at 74. 35 See, for example, his statement that "some measure of detachment from the pressure of public opinion is essential" ([1997] 3 W.L.R. 23 at 76 (emphasis added)) which indicates that the detachment need not be complete.
    • (1997) W.L.R. , vol.3 , pp. 23
  • 47
    • 3042896245 scopus 로고    scopus 로고
    • [1997] 3 W.L.R. 23 at 74. 35 See, for example, his statement that "some measure of detachment from the pressure of public opinion is essential" ([1997] 3 W.L.R. 23 at 76 (emphasis added)) which indicates that the detachment need not be complete.
    • (1997) W.L.R. , vol.3 , pp. 23
  • 48
    • 3042868842 scopus 로고    scopus 로고
    • See also Brewster and Others [1998] 1 Cr.App.R.(S.) 181 at 184, where Lord Bingham C.J. said that the very sharp rise in the use of custody by English sentencing judges that had occurred since 1993 (in 1996 the use of immediate custody in the Crown Court for all offences reached 60 per cent - the highest level since the early 1950s) was probably a response not just to legislation but "to certain highly publicised crimes . . . ministerial speeches and intense media pressure."
    • (1998) Cr.App.R.(S.) , vol.1 , pp. 181
    • Brewster1
  • 49
    • 3042859287 scopus 로고    scopus 로고
    • See also the views of Lord Bingham C.J. expressed extra-judicially in a lecture to the Police Foundation: "In determining a sentence, the judge should close his or her ears to public and media clamour concerning that case." (The Times, July 11, 1997 (emphasis added)). A further insight into Lord Bingham's position is provided by the following comment made in a recent interview conducted by Professor Andrew Rutherford for the New Law Journal: "Any judge or any magistrate who is provoked by public clamour into passing a severe sentence in a particular case is really abdicating his or her duty. On the other hand, people passing sentence have to be alive to the climate of the society in which they live up to a point. If the judges and magistrates are routinely castigated in the press and on political platforms for not doing their job or for undermining confidence in criminal justice and so forth I don't think they should shut their ears to that and even if they should I don't think they can. If the climate of opinion has to be altered it won't happen by chance and this requires effective leadership, education and explanation." ((1998) 148 N.L.J. 726 at 726).
    • (1998) N.L.J. , vol.148 , pp. 726
  • 51
    • 3042901941 scopus 로고    scopus 로고
    • note
    • Problems of identification and measurement are a very real impediment to anyone who wishes to factor public opinion into sentencing law (either through mandatory inclusion or full or partial permission) and nothing in this article should be taken as indicating otherwise.
  • 52
    • 84865903684 scopus 로고    scopus 로고
    • It remains to be seen whether the House of Lords will have more to say about the relationship between public opinion and sentencing when it hears an appeal in R. v. Secretary of State for the Home Department, ex parte Myra Hindley, The Times, December 19, 1997. Despite accepting that Ms Hindley (one of the notorious "Moors Murderers") felt herself to be "hostage to public opinion", the Court of Appeal was able to sidestep this issue because Ms Hindley had not accused the Home Secretary of taking into account an irrelevant or improper consideration when setting her tariff. In the absence of such an allegation, the Court concluded that it was unnecessary for it to consider the extent to which, if at all, the Home Secretary was entitled to factor public opinion into his decision.
    • It remains to be seen whether the House of Lords will have more to say about the relationship between public opinion and sentencing when it hears an appeal in R. v. Secretary of State for the Home Department, ex parte Myra Hindley, The Times, December 19, 1997. Despite accepting that Ms Hindley (one of the notorious "Moors Murderers") felt herself to be "hostage to public opinion", the Court of Appeal was able to sidestep this issue because Ms Hindley had not accused the Home Secretary of taking into account an irrelevant or improper consideration when setting her tariff. In the absence of such an allegation, the Court concluded that it was unnecessary for it to consider the extent to which, if at all, the Home Secretary was entitled to factor public opinion into his decision.
  • 53
    • 0039339286 scopus 로고
    • A similar view was expressed by judges interviewed in a pilot study into Crown Court sentencing which was conducted from the Oxford Centre for Criminological Research by A. Ashworth, E. Genders, G. Mansfield, J. Peay and E. Player (see Sentencing in the Crown Court: an Exploratory Study (1984), p.31). The participating judges stressed that only "informed public opinion" should be taken into account. However, the majorty claimed (perhaps not surprisingly) that "informed public opinion" and their own opinions were synonymous!
    • (1984) Sentencing in the Crown Court: An Exploratory Study , pp. 31


* 이 정보는 Elsevier사의 SCOPUS DB에서 KISTI가 분석하여 추출한 것입니다.