Borderline sentencing

AuthorMike Hough,Andrew Millie,Jacqueline Tombs
Date01 August 2007
DOI10.1177/1748895807078866
Publication Date01 August 2007
SubjectArticles
Criminology & Criminal Justice
© 2007 SAGE Publications
(Los Angeles, London, New Delhi and Singapore)
and the British Society of Criminology.
www.sagepublications.com
ISSN 1748–8958; Vol: 7(3): 243–267
DOI: 10.1177/1748895807078866
243
Borderline sentencing:
A comparison of sentencers’ decision making in
England and Wales, and Scotland
ANDREW MILLIE, JACQUELINE TOMBS AND MIKE HOUGH
Loughborough University, UK, University of Stirling, UK and
King’s College London, UK
Abstract
This article draws together findings from two related studies of
sentencing in England and Wales, and Scotland. It examines how
sentencers in the two jurisdictions differ in their sentencing
decision making, with a focus on cases on the borderline between
prison and a community penalty. The article suggests that, despite
differences in legal systems and criminal justice structures,
sentencers’ decision making in the two jurisdictions was remarkably
similar. In both jurisdictions they took account of a wide range of
factors in reaching their decisions, among which the legal category
of the offence under sentence was often subsidiary to other
considerations. The main difference between the two jurisdictions
was the much more dramatic rate of increase in the adult prison
population in England and Wales than in Scotland. Several possible
explanations are offered for this, including the literal and
metaphorical distance of Scotland from Westminster and the greater
impact of sentencing guidance south of the border—which has
probably had a largely unintended inflationary effect on the prison
population.
Key Words
borderline cases • England and Wales • Scotland • sentencers
• sentencing
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244 Criminology & Criminal Justice 7(3)
Introduction
Since the early 1990s the prison populations of both England and Wales and
Scotland have increased, to a position where more people per head of the popu-
lation are now imprisoned in both jurisdictions than ever before. Two recent
parallel studies by the authors (Hough et al., 2003; Tombs, 2004),1conducted
as part of the Esmée Fairbairn Foundation’s Rethinking Crime and Pun-
ishment initiative, considered reasons for this change. The studies examined
Home Office and Scottish Executive statistics on convictions and general sen-
tencing patterns and trends in the use of imprisonment in the courts, and
reviewed other relevant research. Both studies also focused on the processes by
which sentencing decisions are made, especially in relation to cases on the bor-
derline between custodial and community sentences. They found that sen-
tencers were more likely to sentence someone to custody than a decade earlier
and, when they did, the sentence was likely to be longer than previously—
although these trends were much less dramatic in Scotland than in England
and Wales.
This article discusses some of the main research findings in the two coun-
tries. It examines whether sentencers in the two distinctive legal jurisdictions
talk in similar or different ways about sentencing decision making, with a
particular focus on the decisions they actually make in cases on the border-
line between prison and a community penalty. We consider the decision
making process and examine sentencers’ explanations, or narratives of sen-
tencing. We also consider the different pressures on sentencers from the
courts, from politicians, from the public and from the media. Overall, we
suggest that, despite differences in legal systems and criminal justice struc-
tures, sentencers’ decision making in the two jurisdictions was remarkably
similar. In particular, sentencers in both jurisdictions took account of a wide
range of factors in reaching their decisions, among which the legal category
of the offence under sentence was often subsidiary to other considerations—
a feature of sentencing that is insufficiently recognized by policy. The main
difference between the two jurisdictions was the much more dramatic rate
of increase in the adult prison population in England and Wales (71%) than
in Scotland (24%). We offer several possible explanations for this, including
the literal and metaphorical distance that Scotland enjoys from Westminster
and the greater impact of sentencing guidance south of the border which, we
suggest, has had an unintended inflationary effect on the prison population.
Background
England and Wales and Scotland share an adversarial basis to their criminal
proceedings; however the courts differ somewhat both in tradition and func-
tion. To summarize, in England and Wales2the less serious offences, summary
offences, are heard at a Magistrates’ Court, either by a bench of three Lay
Magistrates or by a single District Judge (formerly known as a Stipendiary
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