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Judicial Discretion in Sentencing (From Exercising Discretion: Decisionmaking in the Criminal Justice System and Beyond, P 50-73, 2003, Loraine Gelsthorpe and Nicola Padfield, eds. -- See NCJ-202489)

NCJ Number
David Thomas
Date Published
24 pages
This chapter presents an overview of British judicial sentencing, from its origin to modern criminal law to the future of discretion in sentencing and the impact of the many versions of the Criminal Justice Act over time.
In this chapter, the predominance of judicial discretion in sentencing is acknowledged as a relatively recent development. During the course of the 18th century, judicial discretion began to be recognized by statute. The modern system of judicial sentencing discretion in felonies can be traced to the period between 1820 and 1861. The role of judicial sentencing discretion in modern criminal law is a function of the legislation passed by Parliament. Parliament can constitutionally grant or restrict the powers of judges. Modern English sentencing law begins with the Criminal Justice Act of 1948 followed by the Criminal Justice Act of 1961 and then 1967 which created greater legislative control over sentencing, at the expense of judicial discretion. Under the Criminal Justice Act of 1983, the statutory criteria for sentencing was introduced and limited to the imposition of custodial sentences on young offenders. In 1991, the Criminal Justice Act set out criteria for the imposition of a custodial sentence and for determining the length of a custodial sentence. The sentencing provisions under the 1991 Act drew adverse criticism. The aftermath of the 1991 Act was seen as a reassertion by the judiciary of the principle that judicial discretion should remain the central feature of the sentencing system. Given the looseness of the statutory framework for the exercise of sentencing discretion, consistent sentencing practices depend on the ability of the judiciary to regulate itself with the principle instrument being the Court of Appeal. The Court of Appeal provides a powerful influence on sentencing in the Crown Court; it discourages maverick sentencers from going to the extremes of either severity or leniency, and has established a substantial body of guidance on sentencing issues which is available to judges in the Crown Court. Lastly, created under the Crime and Disorder Act of 1998, the Sentencing Advisory Panel stimulates the development of guidelines by the Court of Appeal, Criminal Division. Future sentencing legislation will follow the current fashion for increasingly detailed rules which must be followed n particular cases, despite the problems. References


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