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Criminal Sentencing as Practical Wisdom

By Graeme Brown
Oxford and Oregon: Hart Publishing. 2017.

In this significant new contribution to the sentencing literature, the author explores the approach to sentencing found in many common law jurisdictions, including Scotland, Canada, and in particular the Australian states. This approach is often described as the ‘instinctive synthesis’ methodology for sentencing, according to which judges adopt a holistic view of the case, and determine sentence without the benefit of an externally imposed guideline structure.

The author reviews the many critiques made of both discretionary sentencing and guideline based sentencing over the years. He also reports findings from semi-structured interviews with 25 judicial officers in Scotland. Scottish sentencers – unlike their counterparts south of the border in England and Wales – sentence without the benefit (or restrictions) arisiBng from sentencing guidelines. Courts in England and Wales must follow sentencing guidelines issued by the English Sentencing Council.

Browne clearly favours the discretionary approach to sentencing, whereby courts exercise their discretion subject only to ‘light touch’ review by the appellate courts. Unsurprisingly, the judges in his study also oppose what Browne describes as the ‘English form of prescriptive guidelines (p. 173). The author interprets the Scottish judiciary’s support for instinctive synthesis sentencing as evidence of the inherent superiority of guideline-free sentencing. This logic is akin to concluding that external regulation of the medical profession is unworkable simply because physicians fail to see the benefits of anything other than self-regulation. Of course, the judges in Scotland are going to oppose the concept of guidelines, and in so doing are likely to claim that guidelines prevent any individualization of the sentencing decision. Judges have always and everywhere opposed sentencing guidelines. Journal readers going back to the 1980s will recall that judicial opposition to sentencing guidelines was one of the principal reasons why the Canadian Sentencing Commission’s guidelines were never adopted in Canada. Judges in England and Wales also opposed the introduction of guidelines in that jurisdiction, although as noted, they eventually accepted a more structured sentencing regime.

The value of this volume is that it brings together the many arguments made by advocates and critiques of both discretionary, instinctive synthesis sentencing and sentencing guidelines. The weakness of the work is its failure to offer much in the way of evidence to support a mode of sentencing that is slowly disappearing. Many jurisdictions, including England and Wales, the US states, South Korea, China, the gulf states, have now introduced sentencing guidelines of one kind or another. These systems vary widely in the degree of guidance they provide, and the degree to which they restrict judicial discretion. Canada, too, appears to be reconsidering sentencing guidelines, as part of the current federal government’s review of sentencing in this country. The irony of this volume is of course that during the gestation of the volume Scotland created a Scottish Sentencing Council with a mandate to develop sentencing guidelines. They may not follow the English model (and certainly won’t if Browne and the Scottish judges can help it), but they will provide more structure and transparency to sentencing in that jurisdiction.

Whether any given reader embraces the perspective of the author will depend, I suspect, upon his or her existing attitude to the use of sentencing guidelines. Critics of sentencing guidelines, both within and beyond the judiciary, argue that any guideline scheme, and particularly the US-based sentencing grids, restrict judicial discretion unduly and prevent the individualisation that is necessary to determine a fit sentence. Such readers are likely to find their position robustly supported by this volume. Advocates of sentencing guidelines are likely to see the author’s position as a defence of the indefensible — namely the retention of wide discretion at sentencing, leading to inconsistency of outcome. Whichever perspective one adopts, however, there is much to learn from this volume which will generate much discussion in many jurisdictions.

University of Oxford

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