Sentencing and the climate of opinion

Criminal Law Review

Volumn 1996, Issue 11, 1996, Pages 776-787

  Ashworth, Andrew ^a   Hough, Michael ^b  

^a KING'S COLLEGE LONDON   (United Kingdom)

^b LONDON SOUTH BANK UNIVERSITY   (United Kingdom)

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EID: 3242774821     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (56)

1. Home Office, Crime, Justice and Protecting the Public, Cm. 965 (1990) para. 2.7.
2. Home Office, Protecting the Public, Cm. 3190 (1996), discussed at [1996] Crim.L.R. 365.
3. See the speech of Lord Taylor C.J. at King's College London, reported in the major newspapers for March 7, 1996 and published in (1996) 5 K.C.L.J. 1.
4. The Attorney General has the power to refer to the Court of Appeal any sentence which appears to be unduly lenient, and the Court may increase it: s.36, Criminal Justice Act 1988. See S. Shute, "Prosecution Appeals against Sentence: the first five years" (1994) 57 M.L.R. 745, and R. Henham, "Attorney General's References and Sentencing Policy", [1994] Crim.L.R. 499.
5. The Attorney General has the power to refer to the Court of Appeal any sentence which appears to be unduly lenient, and the Court may increase it: s.36, Criminal Justice Act 1988. See S. Shute, "Prosecution Appeals against Sentence: the first five years" (1994) 57 M.L.R. 745, and R. Henham, "Attorney General's References and Sentencing Policy", [1994] Crim.L.R. 499.
6. It might be pointed out that the standard maximum penalty under the 1992 Act is two years' imprisonment, which had been the maximum penalty for this offence until 1988, when the Government reduced the penalty to six months in the Criminal Justice Act of that year. This suggests that in 1988 there was no public clamour for substantial sentencing powers for this crime.
7. Access to higher sentencing powers under section 53(2) of the Children and Young Persons Act 1933 is restricted to "grave crimes", a category broadened somewhat by the Criminal Justice Act 1993, s.67(2).
8. For simplicity, there is no discussion here of s.29(2), which introduced a complex but limited exception to s.29(1).
9. Bexley, Summers and Harrison (1993) 14 Cr.App.R.(S) 462.
10. Lord Taylor, "Judges and Sentencing", [1993] Journal of the Law Society of Scotland 129, at p.130.
11. See further Ashworth and Gibson, "Altering the Sentencing Framework", [1994] Crim.L.R. 101; Wasik and von Hirsch, "Section 29 Revised: Previous Convictions in Sentencing", [1994] Crim.L.R. 409.
12. See further Ashworth and Gibson, "Altering the Sentencing Framework", [1994] Crim.L.R. 101; Wasik and von Hirsch, "Section 29 Revised: Previous Convictions in Sentencing", [1994] Crim.L.R. 409.
13. e.g. Daily Mail, April 7, 1993, at p.1: the "discredited Criminal Justice Act . . . forces magistrates . . . to ignore previous convictions".
14. See B. Gibson and G. Levy, "A Method of Achieving Fair Unit Fines", (1993) 157 J.P. 147.
15. "Scales of Justice", Daily Mail, October 28, 1992, at p.5.
16. The much-publicised fine of £1,200 on a South Wales man for dropping a crisp packet is another notable example: see the newspapers of April 7, 1993.
17. Announced in May 1993 and effected by the Criminal Justice Act 1993.
18. See n.3 above.
19. P. Schlesinger and H. Tumber, Reporting Crime: the Media and the Politics of Criminal Justice (1994), at p.146.
20. Schlesinger and Tumber, op. cit., at p.185, summarising earlier studies.
21. A. Ashworth, E. Genders, G. Mansfield, J. Peay and E. Player, Sentencing in the Crown Court: an Exploratory Study (University of Oxford Centre for Criminological Research, 1984), at p.31 (hereinafter described as the Oxford Pilot Study).
22. See generally the work of R. Ericson, P. Baranek, and J. Chan, Negotiating Control: a Study of News Sources (1989), and Schlesinger and Tumber, op. cit., Part 1.
23. See generally the work of R. Ericson, P. Baranek, and J. Chan, Negotiating Control: a Study of News Sources (1989), and Schlesinger and Tumber, op. cit., Part 1.
24. Howard, "A Sentencing Policy backed by Reality", Law Society's Gazette, December 15, 1995.
25. R. Jowell, J. Curtice, L. Brook and D. Ahrend, British Social Attitudes: 11th Report (1994).
26. April 1, 1996.
27. e.g. M. Hough and D. Moxon, "Dealing with Offenders: Public Opinion and the Views of Victims", (1985) 24 Howard J.C.J. 160, and Chapters 3, 7, 10 and 11 of N. Walker and M. Hough (eds.), Public Attitudes to Sentencing: Surveys from Five Countries (1988).
28. See chapters 2, 4, 5, 6 and 8 of Walker and Hough (1988); also J. V. Roberts, "Public Opinion, Crime and Criminal Justice", in M. Tonry (ed.), Crime and Justice: a Review of Research, vol. 16 (1992).
29. N. Walker, M. Hough and H. Lewis, "Tolerance of Leniency and Severity in England and Wales" in Walker and Hough (1988), at p.185.
30. A. Doob and J. Roberts, "Public Punitiveness and Public Knowledge of the Facts", in Walker and Hough (1988).
31. M. Hough, "People Talking About Punishment", (1996) 35 Howard J.C.J. 191. The research used "focus group" methodology - essentially, structured group discussions with around 7-10 participants per group.
32. M. Zander and P. Henderson, Crown Court Study, Royal Commission on Criminal Justice Research Study No. 19 (1993), para. 8.8.3. This question was only asked of jurors in cases which were sentenced immediately, which represented just over one-half of all cases.
33. N. Walker and C. Marsh, "Does the Severity of Sentence affect Public Disapproval?", in Walker and Hough (1988).
34. Figure of 75 per cent supplied by the Home Office Research and Statistics Directorate.
35. See n.26.
36. See A. Ashworth, "Victim Impact Statements and Sentencing", [1993] Crim.L.R. 498.
37. The Victim's Charter (2nd ed.) 1996, p.3.
38. See, e.g. M. Maguire, Burglary in a Dwelling (1982); J. Shapland, C. Willmore and P. Duff, Victims in the Criminal Justice System (1985).
39. See, e.g. M. Maguire, Burglary in a Dwelling (1982); J. Shapland, C. Willmore and P. Duff, Victims in the Criminal Justice System (1985).
40. Cox (1993) 14 Cr.App.R.(S) 479, at 481, adopting the words of Lawton L.J. in Bradbourn (1985) 7 Cr.App.R.(S) 180.
41. (1994) 15 Cr.App.R(S) 279.
42. Oxford Pilot Study (1984) at p.31.
43. A. Ashworth and A. von Hirsch, "Recognising Elephants: The Problem of the Custody Threshold", [1997] Crim.L.R. (forthcoming).
44. See Hough (1996), n.28 above.
45. The criminological research does not, however, support these rather simplistic assumptions about the operation of deterrence: see, e.g. N. Walker and N. Padfield, Sentencing: Theory, Law and Practice (2nd ed.) 1996, Chs. 7 and 8.
46. For analysis, see Lord Windlesham, Responses to Crime (Vol. 2), 1993, Chs. 5 and 8; cf. also D. Faulkner, Darkness and Light (Howard League) 1996, Ch. 2 and passim. And see now Lord Windlesham, Responses to Crime (Vol. 3) 1996, Pts. I and II.
47. For analysis, see Lord Windlesham, Responses to Crime (Vol. 2), 1993, Chs. 5 and 8; cf. also D. Faulkner, Darkness and Light (Howard League) 1996, Ch. 2 and passim. And see now Lord Windlesham, Responses to Crime (Vol. 3) 1996, Pts. I and II.
48. For analysis, see Lord Windlesham, Responses to Crime (Vol. 2), 1993, Chs. 5 and 8; cf. also D. Faulkner, Darkness and Light (Howard League) 1996, Ch. 2 and passim. And see now Lord Windlesham, Responses to Crime (Vol. 3) 1996, Pts. I and II.
49. A. E. Bottoms, "The Philosophy and Politics of Punishment and Sentencing," in C. Clarkson and R. Morgan (eds), The Politics of Sentencing (1995), at p.47.
50. See M. Maxfield, Fear of Crime in England and Wales (1985) and M. Hough, Anxiety about Crime: Findings from the 1994 British Crime Survey (1995).
51. See M. Maxfield, Fear of Crime in England and Wales (1985) and M. Hough, Anxiety about Crime: Findings from the 1994 British Crime Survey (1995).
52. For analysis of recent U.S. sentencing policies and practices, see M. Tonry, Sentencing Matters (1996).
53. This proposal is outlined in Ashworth, Sentencing and Criminal Justice, Ch. 13.
54. See J. B. Thompson, The Media and Modernity (1995), Ch. 8; cf. also J. Curran and J. Seaton, Power without Responsibility (4th ed.) 1991.
55. See J. B. Thompson, The Media and Modernity (1995), Ch. 8; cf. also J. Curran and J. Seaton, Power without Responsibility (4th ed.) 1991.
56. See further N. D. Walker and N. Padfield, Sentencing: Theory, Law and Practice (2nd ed.) 1996, Ch. 6.