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 Just Sentencing

 

News and Comment

 

This is a bulletin written by Tom O Malley, B.L. in a personal capacity and hosted on the ISIS website. Nothing stated in the Bulletin is intended to represent the views of the ISIS Steering Committee or of any member of the Committee other than the author.

 

 

Welcome to Just Sentencing: News and Comment, a new addition to the ISIS website in which I hope to keep readers informed of interesting sentencing developments at home and abroad. The bulletin will have a strong comparative slant, because sentencing is one area of law and social policy that lends itself particularly well to comparative treatment. Laws and structures may vary from one country to another, and different terminology may be used, but we are all struggling with the same fundamental questions: Why punish? What range of penalties should be available? How, if at all, should judicial discretion be structured? When is a custodial sentence appropriate? Debates on these and other questions will endure, because what seems enlightened to one generation may well seem misguided or even primitive to the next. The first post, dated February 18, 2013, is an extended one but subsequent posts will probably be much shorter, as the main purpose is simply to alert readers to recent developments rather than engage in any extended analysis of them. This is a bulletin rather than a blog, so there is no comment facility but readers who wish to suggest items for mention are welcome to contact me at tom.omalley@nuigalway.ie 

 


 

March 18, 2013 

 

 

IRELAND 

Community Service for Manslaughter; Social Welfare Fraud

 

In keeping with ISIS policy and in order to comply with Data Protection legislation, Irish cases in which sentences have been imposed or challenged by way of appeal or review are referred to by initials only.

 

Community Service for Manslaughter

 

On March 4, 2013 at Wexford Circuit Criminal Court, a woman J. and her partner C. were sentenced for the manslaughter of J s mother. It was apparently the first Irish case of manslaughter arising from neglect by a family member. The victim died in 2006 and the defendants were found guilty of manslaughter by a majority jury verdict in December 2012. The jury in a previous trial had failed to agree. In fact, the case had quite a long history, including a dispute over third-party disclosure which led to a monumental judgment by Edwards J (HSE v W. [2009] IEHC 242). An appeal to the Supreme Court on the disclosure point did not proceed after an agreement was eventually reached between the main parties. J and C were each sentenced to 240 hours community service, a penalty rarely imposed in manslaughter cases. But this was, by any standards, a most unusual case not least because the defendants themselves appear to have been experiencing personal difficulties when J s mother died. Media reports of the sentencing hearing are less than clear as to the precise sentence imposed. They suggest that the CSO was imposed in lieu of two years imprisonment. This is quite in order procedurally, as it has been held that an order imposing a CSO must specify the prison sentence that would otherwise have been appropriate (F. v M. [2005] 3 I.R. 574). However, one media report indicates that the judge also made the imposition of the order conditional on the defendants being of good behaviour and remaining sober for a two-year period. Another report, while indicating that the maximum CSO was imposed, goes on to state that the defendants were sentenced to two years imprisonment, suspended on condition that they complied with the recommendations of a social welfare report . This is puzzling. The imposition of a prison sentence, suspended or otherwise, is entirely incompatible with a CSO which is an alternative to imprisonment. Community service may not be imposed as a condition of a suspended sentence.  Moreover, the term of imprisonment which a CSO replaces does not operate as a default penalty where a defendant fails to fulfil the CSO. Failure to fulfil the terms of a CSO is an offence in itself. Some media reports of the sentencing in this case may not be entirely accurate or there may be some rational explanation for the sentence actually imposed. However, there is much to be said for reforming the law so as to allow a CSO to be combined with some kind of probationary or supervisory measure in order to maximise its benefit to the offender.

 


Social welfare fraud

 

Prosecutions for social welfare fraud are sometimes criticised as exemplifying a supposed official tendency to concentrate on the crimes of the poor while ignoring those of the rich. Such a criticism could scarcely be made of the prosecution in People (DPP) v M.  [2012] IECCA 60 where the defendant defrauded the State of about ¬ 249,000 over a period of years. The scheme involved a high level of deception including the use of a false passport and other false documents. He pleaded guilty to having a false passport and received a three-year sentence on that charge which was not the subject of an appeal. He also pleaded to 25 sample charges (out of 74) of theft, resulting from the social welfare fraud. He received an overall prison sentence of 12˝ years consisting of 24 consecutive six-month sentences to be served concurrently with sentences on two other charges. On appeal it was argued that the overall sentence offended against the totality principle. The Court of Criminal Appeal agreed and substituted a cumulative sentence of nine years imprisonment with the last year suspended. What makes the judgment significant is that the Court offered some guidance on sentencing offences of this nature. First it attempted to rank order welfare fraud on the overall scale of gravity and noted, for example, that it ranked lower than serious offences against the person. Then it examined the moral basis for punishing such conduct, and noted that the present economic state of the country calls for a high level of social solidarity. The Court concluded that significant and systematic frauds directed at the public revenue whether illegal tax evasion on the one hand or social security fraud on the other should generally meet with an immediate and appreciable custodial sentence , while acknowledging that individual circumstances must always be taken into account. This is a good start in terms of offering sentencing guidance, but much more is needed by way of indicating relevant aggravating and mitigating factors, the point at which the custody threshold is reached and, ideally, some indication of the custodial terms that might be appropriate once the threshold is reached.



 


ENGLAND AND WALES

Perverting the Course of Justice

 

Perverting the course of justice has been much in the news in England of late. Former MP Chris Huhne and his former wife, Vicky Pryce, were each sentenced to eight months imprisonment for this offence as a result of him transferring his penalty points to her. He has been sent to Wandsworth which, according to prison inspection reports, has one of the harshest regimes in Britain. The only good news is that, owing to the rather complicated parole arrangements now operating in England and Wales, they will be eligible for release halfway through their sentences and may even qualify for release under curfew once they have served two months. Either way they should be out in plenty of time for the Galway Races, though they may miss the Royal Ascot. Whether Huhne and Pryce should have been sent to prison at all is a matter of opinion, and their case raises once more the troubling questions of when imprisonment is merited and when the custody threshold has been reached. According to Owen Bowcott, legal affairs correspondent of The Guardian (writing on March 11, 2013), the typical sentence for perverting the course of justice ranges from four to 36 months. Perverting the course of justice is one of those protean offences, like conspiracy, that can be committed in many different circumstances. Many prosecutions arise from false allegations of rape and domestic violence though, as the Huhne case shows, the offence can take many other forms as well. We have a small amount of case law on it in this country; see, for example, People (DPP) v McL. 2010] IECCA 21 (ex tempore). Here in Ireland, making a false report to the Gardai is also a statutory offence under s. 12 of the Criminal Law Act 1976. As to sentencing principles, I venture to suggest that there should be a presumption of custody where the offender s conduct resulted in an innocent person being arrested, charged or remanded in custody. But where, as in Huhne s case, the harm is systemic rather than personal in nature, a substantial fine or a demanding community order should ordinarily be adequate.

 

Meanwhile, the Director of Public Prosecutions for England and Wales has published a report entitled Charging Perverting the Course of Justice and Wasting Police Time in Cases Alleging False Rape and Domestic Violence Allegations. This follows upon CPS guidance issued in July 2011 on charging the offence of perverting the course of justice in rape and domestic violence cases. The impetus for all of this activity was undoubtedly the controversial case of R v A [2010] EWCA Crim. 2913 where a woman complained to the police that she had been raped by her husband. She then said that she wanted to retract the allegation but the CPS decided to proceed with the prosecution. Once this decision was made, the woman said that she had lied in her original complaint and that her husband had never raped her. The case against her husband was dropped and she was charged with perverting the course of justice. At this point, she claimed that the original allegation was true, after all. She was thereupon charged, in the alternative, with perverting the course of justice by falsely withdrawing a true allegation, a case of so-called double retraction. She was sentenced to eight months imprisonment but this was reduced on appeal to a community order. There was something of a public outcry about the way she was treated and the DPP himself expressed some unease about it. He issued a directive requiring the CPS to refer all such cases to him and he now personally oversees all charging decisions in those cases. The report just published has some interesting statistics. During the 17-month period from January 2011 to May 2012, there were 5,651 prosecutions for rape and 35 prosecutions for false reporting of rape. The equivalent figures for domestic violence were 111,891 and 6. During the past few years, the Criminal Appeal Reports (Sentencing) have included several judgments on the sentencing of persons convicted of falsely alleging rape. It seems therefore that, despite the legal importance of those cases, they are statistically rare.






AUSTRALIA (VICTORIA)

Maintaining a sexual relationship with a child

 

Serial child abuse poses serious legal difficulties for both prosecutors and sentencers. A prosecutor must frame an indictment which reflects the duration and gravity of the abusive conduct while at the same time avoiding the presentation of an overloaded indictment or one that breaches the rule against duplicity. Judges must select an appropriate sentence for each offence of conviction and then structure those sentences in a way that adequately reflects the overall gravity of the abuse inflicted on the victim(s). Australian jurisdictions have addressed this problem (in part at least) by creating offences of maintaining a sexual relationship with a child. In the State of Victoria, for example, it is an offence punishable with a maximum of 25 years imprisonment to have been involved in at least three relevant sexual offences with a child under the age of 16 years within a specified period. The details of the individual acts, in terms of time, place and circumstances, need not be proved with the same degree of specificity as would be required for more particular offences such as rape and sexual assault. (In Victoria, the offence is now known as persistent sexual abuse of a child under the age of 16 ). In November 2011, Victoria s Sentencing Advisory Council (which represents the gold standard of sentencing information systems worldwide) published a Sentencing Snapshot for this offence. Like all the Council s publications, it is available on its website at www.sentencingcouncil.vic.gov.au. During the five-year period 2005-2010, 46 people were sentenced for maintaining a sexual relationship with a child under the age of 16 years. 96 per cent of these were sentenced to immediate custody. The median length of imprisonment was six years. Of the 43 who were imprisoned, 10 received terms of seven to eight years imprisonment, while 30 received prison terms somewhere between four and eight years. There were a few higher sentences, up to 13 years in one or two cases.

 

The Victoria Court of Appeal issues some excellent sentencing judgments and it began this year with a whole raft of them. I will return to some of them again in later posts but here it is appropriate to mention here just one dealing with the offence under discussion. This is B.M. v The Queen [2013] VSCA 3. The defendant pleaded guilty to persistent sexual abuse of child, the victim being his daughter who he abused over a ten-year period while she was aged between four and 13 years. He was separated from the child s mother and the abuse took place while the child was on access visits to his house every second weekend. He was sentenced to 12 years imprisonment with a non-parole period of nine years, and his appeal against that sentence was dismissed. The judgment has some useful observations on aggravating factors such as the age difference between the parties and engagement in unprotected sex leaving the victim exposed to the risk of a sexually transmitted disease. An earlier judgment of the same court in DPP v D.D.J. [2009] VSCA 115 dealt at greater length with the sentencing of the same offence and also illustrates the utility of statistics provided by the Sentencing Advisory Council.


 

RECENT PUBLICATIONS

 

Philosophers have argued tenaciously over the moral justification for punishing offenders. Some adopt a deontological stance, arguing that punishment should be imposed simply because it is deserved, while others insist on a more utilitarian rationale such as rehabilitation or deterrence. Courts and legislatures seldom agonise very much over this theoretical question. They prefer to recognise all the main moral justifications as valid in their own right, leaving it to trial judges to decide on the purpose to be accorded priority in any given case. The problem with this hybrid approach, as is well recognised, is that it can produce significant disparity of outcome, as judges are likely to differ over the predominant purpose to be pursued, even in very similar cases. But what do the public think? This is a topic on which there has been little research but the results of a fairly recent survey conducted in Australia make for instructive reading. The survey was carried out among 800 randomly selected Australians (100 from each state and territory). Respondents were presented with eight crime scenarios differentiated according to offender age, offence type (burglary and serious assault) and offender history. A typical crime scenario would have been; A young 17-year-old offender who has been convicted of burglary and has no previous criminal record . Respondents were then asked what they considered to be the most important purpose of sentencing in each case, and the options provided were:

 

  1. Give them the punishment they deserve
  2. Teach them a lesson
  3. Make an example of them
  4. Rehabilitate them
  5. Keep them off the streets

 

These purposes were phrased in terms which ordinary people would understand but they obviously correspond to desert, individual deterrence, general deterrence, rehabilitation and incapacitation. The results show that the public do not endorse any one purpose of punishment in all circumstances, but that (like courts) they take account of offence type, offender age and offender history in selecting their preferred policy. Rehabilitation was the preferred option when it came to first-time and young offenders and less serious offences. Punishment (meaning desert or retribution) was considered more important for repeat offenders, older offenders and serious offences. The statistical results are quite revealing in this regard (and I should say that the article has very detailed statistical analyses). However, Table 1 shows, for example, that 64 per cent of respondents favoured rehabilitation for a young offender convicted of burglary with no previous convictions, whereas less than 10 per cent favoured punishment. On the other hand, when it came to a young or adult offender convicted of a serious assault and with three previous convictions, punishment and incapacitation were by far the preferred options. One of the most striking results was that general deterrence ranked very low for all eight crime scenarios, never exceeding eight percent. Individual deterrence ranked somewhat higher for younger offenders. What the study proves, among other things, is that members of the public do believe in individualised punishment in the sense that individual circumstances, especially youth and previous record, should be taken into account. They also believe that sentences for young offenders without a significant criminal record should be constructive rather than just punitive. The citation for the article is Spiranovic et al, Public preferences for sentencing purposes: What difference does offender age, criminal history and offence type make? (2011) 12:3 Criminology & Criminal Justice 289-306. It includes a very useful review of earlier studies of a similar nature.

 


 

HOW ARE THINGS IN WORLD OF RELIGION?

 

That question comes from my favourite episode of Father Ted and it was addressed by Ted to the fearsome Bishop Brennan. Well Ted, as Dougal might have said, things are not all that great in the world of religion, at least if we are to rely on a recently-published article by a group of American criminologists. Religion has been shown, or has at least been assumed, to have some effect in dissuading people from committing crime, but a study carried out by Tapolli, Brezina and Bernhardt ( With God on my side: The paradoxical relationship  between religious belief and criminality among hardcore street offenders (2013) 17:1 Theoretical Criminology 49-69) suggests it might sometimes have the opposite effect. They interviewed 48 hardcore street offenders in Atlanta, people who statistically have a short life expectancy, to discover if they had religious beliefs and, if so, how those beliefs might influence their behaviour. They found that many offenders used religion to rationalise and justify their criminal behaviour. One interviewee by the name of Cool, a 25-year-old drug dealer, was particularly eloquent on the topic. He held that God does not mind if you do bad things to bad people. He took the opportunity to send out a warning to would-be dope dealers (that s right) and molesters, saying that if they engaged in such nefarious activities, God would send Cool over to your house to get your ass . He reckoned that he was giving them punishment for Jesus . Of course, as was pointed out in a comment at www.slate.com (where I came across the reference), the sample in this study was very small and geographically limited and, furthermore, street offenders are not the only people who have been known to invoke religion as a justification for wrongdoing. True enough.

 

 


 

February 18, 2013

 

IRELAND

 

Evasion of import duty

 

At the time of writing, the Court of Criminal Appeal just has taken us all out of suspense and announced the sentence to be imposed on P.B. who pleaded guilty in 2012 to evading the payment of ¬ 1.6 million in tax on the importation of garlic. Having earlier quashed the original sentence of six years imprisonment, the Court substituted a two-year term to run from the date of the appellant s original imprisonment. The principal factors which the Court is reported to have taken into account in addition, presumably, to the guilty plea were the appellant s extensive co-operation with the criminal investigation and his expression of genuine remorse. Hopefully, the full text of Court s judgment will soon surface on the Courts Service website or some other database. Sentencing for so-called white-collar crime is something to which we shall probably have to devote more attention and analysis in the future. At one level, there is nothing particularly difficult about it because the overarching principle of proportionality applies to white-collar offences as to all others. A sentence must be proportionate to the gravity of the offence and the personal circumstances of the offender. However, in order to assess gravity properly it is first necessary to understand it. This is not a problem with commonly prosecuted serious crime, especially offences against the person and against property, because we all understand, as a  matter of intuition and common experience, why it is necessary to outlaw such conduct and why it is worthy of punishment. There would also be a broad consensus, within limits, on how such offences should be ranked in terms of gravity (e.g. fatal assaults will ordinarily be regarded as more serious than non-fatal assaults, at least before particular circumstances are taken into account). With certain forms of economic crime, on the other hand, the moral basis for imposing punishment may not always be so obvious. What exactly is wrong about, say, anti-competitive commercial practices or insider trading? Of course, there are answers to such questions, but they need to be made explicit. The recent judgment of the High Court of Australia in Mansfield v The Queen [2012] HCA 49 is interesting in this regard. The appellants were facing re-trial for insider trading as a result of dealing in shares of Adultshop which apparently had an annual turnover in excess of $30 million (and we shall say no more about that). They claimed that the insider information on foot of which they bought the shares had turned out to be false, that the expected increases in profits and turnover had not taken place, and that they could not accordingly have engaged in insider trading. They argued that the word "information" in the governing statute could only be interpreted to mean "information that was not false". The High Court disagreed and held that a re-trial could proceed where the question would be whether the information was "material". What makes the two judgments delivered by members of the Court interesting in the present context is that both made some effort to explain the rationale for insider trading offences, especially in terms of maintaining investor confidence in the market. If prosecutions for serious white-collar crime become more prevalent in this country, appeal courts and trial courts will have an important role in articulating the moral as well as the legal basis for punishing offenders. This will be necessary in order to legitimate the sentences imposed and to create an environment within which coherent sentencing principles can be elaborated.

 


 

ENGLAND AND WALES

 

Delayed prosecutions for child abuse; seriously ill offender; discount for guilty plea

 

Delayed prosecutions for child abuse

 

Sentencing offenders convicted of child sex abuse offences committed in the distant past is fraught with difficulty, not least because the personal circumstances of the offender may have changed radically between offence and sentence. Another troubling question is whether courts should attempt to identify the sentence that might have been imposed if the offences had come to light shortly after their commission. In R v H [2012] 1 W.L.R. 1416, [2012] 2 All E.R. 340, [2012] 2 Cr. App. R.(S.) 21 (p. 88), the English Court of Appeal (Criminal Divisional) analysed this problem in some depth. Essentially, it held that the relevant maximum sentence is that which was available when the offences were committed, but that otherwise a sentence should ordinarily be determined in accordance with the principles, rules and (where relevant) guidelines in existence at the date of sentence. This does not mean that relevant factors existing at the time of the offences must be ignored. For instance, if the offender himself was still very young when the offences were committed, this is a factor relevant to culpability and may be taken into account. However, the Court felt that there was little point in trying to identity what the sentence might have been if the offences had come to light immediately or shortly after they were committed. The New Zealand Court of Appeal also provides a very thoughtful analysis of this problem in R v de Reeper [2012] NZCA 617 where it reduced the sentence imposed on a man convicted of a number of sexual offences, including the rape of a nine-year-old girl in 1971-1972 when he was 14 or 15 years of age. The New Zealand court was distinctly more receptive than its English counterpart to the idea of identifying the sentencing regime that would have applied in the early 1970s, and it made an effort to do so, although it had few authorities to go on.

 

Seriously ill offender

 

The circumstances of R v Hall [2013] EWCA Crim. 82 were most unusual, if not unique. Although just 30 years of age, the defendant suffered, according to the Court of Appeal, "from an extremely grave combination of rare long term medical conditions which interfere with virtually all his bodily functions and require 24 hour monitoring and a very high level of constant assistance in most of the ordinary incidents of his life." In fact, the judgment has to be read to appreciate fully the defendant s helpless state, and he had experienced other personal difficulties as well. In 2011, he travelled to Peru with his carer for a holiday, and on his return was found at Heathrow airport to have 2.8 kilograms of cocaine worth ¬ 370,000 concealed in his wheelchair. This was clearly a serious offence but the trial judge, taking account of the defendant s medical condition, imposed three years imprisonment. The essential question for the Court of Appeal was whether a prison sentence should have been imposed at all, especially in light of its earlier decision in R v Qazi [2010] EWCA Crim. 2579. There it was held that to send a seriously ill or severely disabled person to prison might breach Article 3 of the European Convention on Human Rights which guarantees freedom from torture and inhuman or degrading treatment or punishment. The Court in Qazi stressed that this would apply only in truly exceptional circumstances and doubted if it would ever arise in practice¸ but said that whenever it genuinely became an issue, and only then, a sentencing court should satisfy itself as to whether adequate arrangements could be made for the offender s care if he were sent to prison. Aside from that situation, the Court in Qazi and again in Hall held that serious illness or severe disability could be relevant to sentence in another way. The experience of imprisonment will probably be much more onerous for a severely disabled person such as the defendant in Hall than for others, and this is a legitimate factor to take into account. In other words, the principle of parity of punishment should be observed. While deciding that the Qazi threshold was not met, and that imprisonment could be imposed, the Court of Appeal nonetheless reduced Hall s prison sentence to 18 months and made some ancillary orders that would restrict him from travelling abroad for some years. It is certainly true that imprisonment may be a more severe punishment for some offenders more than others and most courts implicitly acknowledge that. But the Hall judgment will doubtless provide a useful precedent in many jurisdictions in the future. Of the hundreds of really good sentencing articles produced in the United States over the past several years, one of my favourites is Adam J. Kolber s "The Subjective Experience of  Punishment" (2009) 109 Columbia Law Review 182, and readily available on the Internet, which deals with this kind of issue.

 

Discount for guilty plea

 

Nothing is more deeply embedded in the common law of sentencing than the principle that a guilty plea should ordinarily be rewarded with a discount, and perhaps a significant one at that. However, the application of the principle can sometimes be problematic. Should, for example, the offender who was caught red-handed be granted a discount and, if so, why? Statute law in both Ireland and England provides that in deciding on sentence where an offender has pleaded guilty, a court shall have regard to the stage at which the offender indicated an intention to plead guilty and the circumstances in which the indication was given. See Criminal Justice Act 1999, s. 29 (Ireland) and Criminal Justice Act 2003, s. 144, re-enacting earlier provisions to the same effect (England and Wales). The implications of the English provision were teased out at length by the English Court of Appeal in R v Caley and others [2012] EWCA Crim. 2821. Irish lawyers will also find this judgment very useful for its analysis of questions such as when the first opportunity to plead may reasonably be said to have arisen. One qualification to be bear in mind is that in Caley, the Court also had to consider the Sentencing Guidelines Council Definitive Guideline, Reduction in Sentence for a Guilty Plea, the present edition of which dates from 2007. Aside from that, the Court s observations on discounts or reductions for guilty pleas will doubtless prove valuable here as well.

 


PRIVY COUNCIL

 

Prosecution delay as a mitigating factor

 

National and international courts are increasingly accepting that a sentence reduction may be appropriate, or even necessary, to compensate for blameworthy delay on the part of state authorities responsible for the prosecution and trial of criminal offences. The latest evidence of this trend comes from the Privy Council decision in Rummun v State of Mauritius [2013] UKPC 6. Section 10(1) of the Constitution of Mauritius guarantees the right to a fair trial within a reasonable time. The Privy Council said where there was a substantial delay in a criminal trial, it was the duty of the court to determine if there had been a breach of the aforementioned right and, if there was, to decide if this was adequately reflected in the sentence. The duty rests on both trial courts and appeal courts and it applies irrespective of whether the matter has been raised by the parties. It was acknowledged that the gravity of the offence and other aggravating factors might well cancel out any credit to be granted for delay, but blameworthy delay, when it arises, should always be considered. In this case, the matter was remitted to the Supreme Court of Mauritius to determine how the gravity of the offence should be balanced against the admitted breach of the appellant s right to a speedy trial. The Privy Council judgment is reasonably short and is now available on www.bailii.org. 

 

 


UNITED STATES



Exclusion of registered sex offenders from social networking sites

 

Many countries nowadays have laws that either permit or, more typically, require the imposition of ancillary orders, such as notification requirements, on convicted sex offenders. United States jurisdictions have been very much to the fore in this regard. As well as notification requirements (so-called sex offender registration), many states have introduced measures allowing for the publication of the names and addresses of convicted offenders, prohibiting offenders from living or being present in close proximity to places where children may be found, and restricting access to the social media on the basis that offenders may use those media to contact children with an intent to abuse. The constitutionality of one such measure was successfully challenged in Doe v Prosecutor, Marion County, Indiana, decided by the Court of Appeals for the Seventh Circuit on January 23, 2013. The relevant law prohibited certain sex offenders from "knowingly or intentionally [using] a social networking web site" or "an instant messaging or chat room program" that "the offender knows allows a person who is less than eighteen years of age to access& or use the web site or program." The plaintiff, who had long since served his prison sentence but remained subject to the State s sex offender registration requirements, was allowed to proceed anonymously. His challenge failed at first instance, but the Court of Appeals disagreed and held that the law was unconstitutional.  The appeal court accepted that Indiana was justified in shielding children from improper sexual communications. The question was whether the relevant law imposed a restriction or burden on free speech that was more extensive than necessary in the circumstances. There are several Supreme Court decisions in this area arising, for example, from restrictions on handing out leaflets by abortion protestors within a 100-foot radius of a healthcare facility (Hill v Colorado 530 U.S. 703 (2000)).  In Doe, the Court of Appeals concluded that the Indiana law "targets substantially more activity than the evil it seeks to redress." The law was over-inclusive and did not conform with the principle that "laws that implicate the First Amendment require narrow tailoring".  However, the Court stressed that the State might well be able to craft a different law aimed at the same mischief without imposing a blanket ban on the use of social media by offenders.

 


NEW PUBLICATIONS

 

Three Oxford-related publications top the bill on this occasion. Aggravation and Mitigation at Sentencing (Cambridge University Press, 2011), edited by Julian Roberts, Professor of Criminology at Oxford, is a collection of very thoughtful essays by leading scholars on different aspects of aggravation and mitigation. The essays are concerned not so much with case analysis but rather with exploring deeper questions about the role of aggravation and mitigation, and the underlying justifications. Mention may also be made here of another fairly recent collection of essays, also edited by Julian Roberts together with Andrew von Hirsch, Previous Convictions: Theoretical and Applied Perspective (Hart Publishing, Oxford, 2010). Few areas of sentencing are more difficult and perplexing than the treatment of previous convictions and this book has a series of highly perceptive, analytical essays on the topic.

 

Later this year, Professor Andrew Ashworth will retire from the Vinerian Professorship of English Law at Oxford, a post previously held by Blackstone and Dicey, among others. Professor Ashworth is, without doubt, one of the leading scholars in the world on criminal law, criminal justice and sentencing. To mark his retirement, a Festschrift entitled Principles and Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth, edited by Lucia Zedner and Julian Roberts (again!) has just been published by Oxford University Press. It is treasure house of path-breaking essays on criminal law and sentencing which will be cited for decades to come. The sentencing section includes essays on "Equality before the Law and Equal Impact at Sentencing" (Kate Warner); "Sentencing Women" (Elaine Player); "Proportionate Sentencing and the Rule of Law" (Malcolm Thorburn), "Concurrent and Consecutive Sentences" (Martin Wasik), and " Wrongful Acquittals and Unduly Lenient Sentences" (Michael Tonry). It is a great personal pleasure to welcome this book. Throughout his very distinguished career, Professor Ashworth has been an unfailing source of kindness and encouragement to others, and younger scholars in particular, throughout the world. He has been a particularly good friend to this country and has often travelled here in the midst of a very busy schedule to talk to law students and teachers.

 

The University of Minnesota is the great powerhouse of sentencing research in the United States (sure I am even going there myself in late April to take part in a seminar!). It is home to three greats of American and world sentencing:  Michael Tonry, Richard Frase and Kevin Reitz. To list Michael Tonry s many books, recent and otherwise, would be impossible, but here I would just mention a new one by Richard Frase entitled Just Sentencing: Principles and Procedures for a Workable System (Oxford University Press, 2012). It includes a highly critical account of state and federal sentencing practice in the United States and proposes a model based on limiting retributivism. This is the idea that desert should provide an upper limit on sentence severity while accommodating various utilitarian goals including crime control. The book has received great critical acclaim. (Incidentally, I promise that I did not steal the title from him. If memory serves me, I first had the idea for this bulletin, including the title, while attending the Woodstock festival in 1969).

 


SENTENCING GUIDELINES

 

The Sentencing Council of England and Wales continues to do tremendous work in its mission to develop a comprehensive set of sentencing guidelines. The Council was established under the Coroners and Justice Act 2009, replacing the former Sentencing Advisory Panel and the Sentencing Guidelines Council.  Under s. 125 of the Act, a court sentencing an offender must follow any guidelines that are relevant to the case unless satisfied that it would be contrary to the interests of justice to do so. So far, the Council, building on the work of its predecessors, has produced several definitive guidelines including ones on Assault (2011) and Burglary (2012). Most recently, in December 2012, it has produced a massive 368-page Consultation Paper on sentencing sex offences, covering the many offences included in the Sex Offenders Act 2003. The Council has allowed a 14-week consultation period before getting down to work on a definitive guideline. The Council s work is always of interest in other jurisdictions, including Ireland, not so much for the proposed sentence ranges, as for its insightful information on other more general matters such as relevant aggravating and mitigating factors.

 


AN ATHENIAN SOLUTION?

 

Socrates was not, after all, the victim of an egregious miscarriage of justice, or so Paul Cartledge (once of TCD and now of Cambridge) argues in a recent book, Ancient Greek Political Thought in Practice (Cambridge University Press, 2009). The indictment, drawn up in 399 B.C. and the text of which survives, charged Socrates with not duly acknowledging the gods of Athens, introducing new divinities and corrupting the youth. (Yes, I know, three charges in the same count; it would never be tolerated today). Once convicted by a jury of 501 citizens, Socrates was entitled, under Athenian law, to suggest his own penalty which might be accepted or form a basis for negotiation. Unfortunately for himself, Socrates made a mockery of the situation by first suggesting that he should be rewarded, like an Olympic champion, with free dinners in the town hall for the rest of his life and then proposing a patently inadequate fine. Once the jury heard this, they had enough and sentenced him to death. But the idea of allowing offenders to suggest their own penalty is an interesting one, is it not?