Graeme Brown, Criminal Sentencing as Practical Wisdom
| Author | |
| Date | 01 May 2018 |
| Published date | 01 May 2018 |
| Pages | 322-324 |
| DOI | 10.3366/elr.2018.0496 |
According to Dr Brown, “the voices of Scottish sentencers are rarely heard”. His book attempts to rectify this by drawing on an empirical research project which he undertook as part of his doctoral thesis. This involved in-depth, face-to-face, semi-structured interviews with twenty-five serving members of the Scottish judiciary: seventeen sheriffs and eight High Court judges. 70% of those whom he approached agreed to being interviewed, a high success rate for an empirical project of this nature. The interviews took place in 2009 and 2010, and the research questions were based on those of an earlier Canadian study. Brown found a high degree of similarity between his findings as regards the Scottish judges and the finding of scholars in Canada and England, albeit that the studies in those other jurisdictions were conducted many years previously. The views of the Scottish judges make compelling reading. One key finding is that mandatory minimum sentences were not popular with Brown's respondents, a view shared by sentencers in other jurisdictions, and Brown makes a strong case for limiting their use. Indeed, the book's central thesis is that judges must retain a high degree of discretion if they are to achieve justice in sentencing.
The author categorises the approach taken by Scottish judges to the sentencing process as one of “instinctive synthesis”, a term he defines as “balancing a variety of often conflicting mitigating and aggravating factors to reach a considered conclusion as to the appropriate sentence in fact-specific, individual cases”. The book charts the development of sentencing guidelines in England and Wales, from general principles emanating from the English Court of Appeal in the 1960s to a sentencing advisory panel established by legislation in 1998. Judges then became under a statutory obligation to have regard to the “definitive guidelines” produced by the Sentencing Guidelines Council from 2003 and to give reasons for any departure from those guidelines. Following the enactment of the Coroner and Justice Act 2009, from April 2010 English courts must follow the guidelines unless it is against the interests of justice to do so. Arguing against such constraints, Brown stresses the importance of Scottish judges continuing to be able to impose sentences which are tailored to the offence and the personal circumstances of the offender – a view which was shared by those he interviewed. The section of the book on leniency in sentencing, and the...
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