The Role of the Expert and Sentencing
| Published date | 01 June 1979 |
| Date | 01 June 1979 |
| DOI | http://doi.org/10.1177/000486587901200201 |
| Subject Matter | Editorial |
AUST &NZ
JOURNAL
OF
CRIMINOLOGY
(June 1979) 12(1-2)
EDITORIAL
The
Role of
the
Expert
and
Sentencing
Over
the last 20 years or so there has
been
debate
as to
the
proper
role of the
various
expert
witnesses in relation to the sentencing
court
with particular
reference to
the
matter
of making
recommendations
and
offering opinions.
For
example
Cradwell'
has
written
"A
medical
report
would
be
most
helpful if it
said anything one
way
or the other instead of talking a lot of nonsense"
but
Scott? has
suggested
that
"The
psychiatrist should
not
make
apositive
recommendation
for punishment
even
though we personally feel that it is
indicated; it is a
matter
for the magistrate".
However,
he also wrote, with
regard
to the question of writing reports
with
recommendations
being
implicit rather
than clearly
stated,
"Is it just possible
that
in court cases
both
the
Bench
and
the
Doctor
tolerate this obliquity for
each
other's sake,
and
that
both
would
be
glad
to
drop
it?"
In a
recent
case, Rv Smith and Woollard (1978)
Crim
LR 758; 67
Cr
App
Rep
211, a situation arose on
appeal
concerned
with a
probation
officer making a
recommendation
to the
court
of first instance that the
two
youths
concerned
should
be
fined for
the
offence of burglary.
The
essential facts
were
stated
by
Lawton LJ (67
Cr
App
Rep
at 212, 213):
Smith is now 19 years of age. He lives with his parents. He comes from a
comfortable
horne and he
has responsible parents. He lett school at
the
age of 16 without any certificates of education and he
has had several jobs. Until afortnight
before
the trial he
had
been
unemployed
for some time. He
has two previous convictions; one in 1976 for unlawful possession of an offensive
weapon,
when he
was fined £20,
and
another
and
more
important
one for the purposes of this
appeal
on May 24, 1977.
He was then
convicted
together
with his co-accused, Woollard, of dishonest handling
and
put on
probation for two years.
The
dishonest handling seems to look as though it was
connected
with
shoplifting activities by
somebody
else. He was on bail,
and
so was
\\'00
lIard, for that offence of
dishonest handling
when
he
committed
the burglary.
The
facts
with
regard
to Woollard
were
similar,
but
he
undoubtedly
had
had
a
more
deprived
childhood. Lawton LJ
then
stated:
The
court was surprised
that
aprobation officer should
recommend
that an
offence
of this gravity
should be dealt
with
by a fine, particularly as Smith
had
been
out of
work
for
some
time
and
the
wages he was getting as a result of the
employment
which
he
had
found a
week
before
his trial were
on the low side.
For
many
years
now
the courts have
encouraged
probation
officers to
make
specific
recornmendations.
The
practice in this
respect
was started by Lord
Goddard
CJ
about
25 years ago
and
underlined by the Streatfeild Report".
Recommendations
by
probation
officers can be very
valuable
indeed,
but
they are not likely to be of
much
value
if
they are not realistic. Mr Devlin (the
probation officer) was in court
and
was asked to explain why he thought a fine ",'as an
adequate
sentence for a
youth
who
had
joined"
with
others in turning a house
upside-down
and stealing a
considerable
amount
of
property.
He told us that he was concerned
about
the future of this young
man. He may be. This
court
is
concerned
about
the security of citizens' houses
and
it is with
regard
to that object
that
the courts have to
decide
what
should be
done
in this class of case. We have no
hesitation in saying
that
in this case, as in nearly all cases of this kind, the
appropriate
sentence is loss
of liberty.
this
matter
has
been
discussed
by
Harris"
with
reference
to the Streatfeild
and
Morison Committees"
and
he suggests
that
Lawton LJ
made
the
matter
too
simple and, as a result, was
hardly
fair to the
probation
officer.
He
notes
the
Home
Office
Circular
of 19746
supports
the proposition
that
an experienced
probation
officer
should clearly state
any
recommendation
he wishes to
make
and
then
comments:
"The
proposal has even
been
made
that
the
sentencing
function should
be
transferred from
the
courts to a sentencing
panel
of 'experts',
Such attitudes
betray
a
profound
misunderstanding of the sentencing process."
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