1. society
2. crime

Course title
Seminar: Sentencing in Common Law Jurisdictions
Duration
1 week
Dates
August 24 – August 28
Instructor
Prof. Julian Roberts (University of Oxford)
Course objectives
To understand the sentencing of offenders in the common law, adversarial model of justice.
Course Description
Overview of Seminar:
Sentencing in common law jurisdictions is procedurally quite different from the civil law systems.
The adversarial model of justice creates a very different set of challenges and opportunities. For
example in the adversarial model, sentencing takes place in a separate hearing separated from the
trial phase of the criminal process. In addition, sentencing practices and policies vary considerably
around the common law world. This seminar will focus on sentencing in the US and England and
Wales, although we shall also discuss developments in other countries, including Canada and
Israel. The seminar begins with the most basic question: Why Punish? Many justifications have
been offered for the imposition of legal punishments, and multiple sentencing objectives have
recently been placed on a statutory footing in all western nations. We shall then proceed to
examine a series of important issues of relevance to all jurisdictions.
Format of Seminar:
Each seminar will consist of an interactive lecture by the instructor. This will be followed by
discussion of the specific seminar questions, and general discussion among all participants.
Questions for discussion will be distributed to participants in the first session. Time permitting we
shall also discuss several appellate judgments; copies of the cases will be provided by the
instructor in the first class. The instructor will also supply copies of relevant statutory provisions
discussed during the course of the seminar.
Course Outline
Seminar 1: Introduction to common law sentencing and the philosophies of
punishment
This introductory seminar will explore the principal justifications advanced to legitimise state
punishment. These generally fall into one of two camps: deontological and utilitarian. Some
sentencing purposes are backward looking; retributivism is concerned with imposing punishments
that reflect (primarily) the seriousness of the offence of conviction, and the offender’s level of
culpability. In contrast, utilitarian sentencing purposes are concerned with the future. Deterrence, for
example, attempts to reduce the likelihood of future offending through the mechanism of fear of
punishment. Although these two traditions (utilitarianism; retributivism) have been conceptually
quite distinct, in late modernity the distinction has become more blurred. Both the utilitarian and the
deontological perspectives have influenced the statutory sentencing provisions in all other common
law jurisdictions.
Seminar 2: Structuring Judicial Discretion at Sentencing: Guidance by Statute
(Sweden; Israel; Canada)
Judges in common law jurisdictions have typically exercised wide discretion at sentencing.
Concerns about lack of uniformity at sentencing have led to the development of many strategies to
guide sentencers. In this seminar we shall evaluate the advantages and disadvantages of various
approaches used in other jurisdictions, from the more radical US presumptive sentencing guideline
systems to the more flexible approaches adopted in some European nations. The most rigid
sentencing guidelines schemes are to be found across the US, where courts follow a grid-style
system. The court must impose a sentence within the range found in the grid box, or justify what
would then become a “departure” up or down. The least restrictive schemes are those found in
Scandinavian countries, or the countries such as Australia or Canada that have declined to create
formal sentencing guidelines or in the case of Canada, to even create a sentencing council or
commission.
Seminar 3: Sentencing Guidelines in the US and England and Wales
The recent experience in England and Wales with respect to structuring judicial discretion is unique
in several respects. Unlike some other jurisdictions there are two statutory bodies involved in the
development of guidelines for sentencers: the Sentencing Guidelines Council and the Sentencing
Advisory Panel, although this arrangement is about to change as a result of the Coroners and
Criminal Justice Act which has recently been proclaimed into law. As a result of this legislation a
new statutory body – The Sentencing Council for England and Wales – will replace the SAP and
SGC. In this seminar we shall adopt a “hands on” approach to examining the guidance offered to
sentencers in this jurisdiction.
Seminar 4: Mitigating and Aggravating Factors
In many respects the determination of sentence involves a careful consideration of all relevant
mitigating and aggravating factors or circumstances. Determining the relevance of a factor is
sometimes quite difficult. For example, should an offender be able to claim some mitigation on the
grounds that they have served the community over a lengthy period of time? This seminar will
examine some of the main factors that mitigate sentence, and will explore their theoretical
justifications and practical effects.In this seminar we will examine some important aggravating and
mitigating factors. After the seriousness of the crime of conviction, an offender’s previous
convictions constitute the most important factor affecting the nature and severity of punishment
imposed. This holds true under the US sentencing grids, as well as countries such as New Zealand
and Canada, where judges continue to exercise wide discretion at sentencing. Considerable
consensus exists with respect to the importance of crime seriousness; considering previous
convictions is far more controversial. We shall examine the positions of the different sentencing
philosophies regarding this issue. With respect to mitigation we shall explore sentence reductions
for a guilty plea as well as a range of personal mitigating factors such as the expression of remorse.
Seminar 5: Role of the Victim at Sentencing
Under the traditional adversarial model, victims have played a very subordinate role in the criminal
process. However, in recent years, third parties of various kinds have been given greater input, and
none more so than the crime victim. In many jurisdictions crime victims are allowed to provide input
throughout the criminal process from bail to sentencing and parole. Victims’ rights legislation in
certain countries creates a responsibility on criminal justice professionals to consult the crime victim
with respect to a number of key decisions such as whether to enter a joint submission at sentencing
or whether to appeal a sentence. Nowhere has the evolution of the role of the victim been more
controversial than at sentencing. Victims in all common law jurisdictions now have a right to submit
a victim impact statement (victim statement) at sentencing. During this seminar we shall discuss the
propriety and consequences of allowing victims to submit impact evidence at sentencing hearings.
Ashworth, A. (2010) Sentencing and Criminal Justice. Cambridge:
Cambridge University Press. (5th ed., 2010)
Seminar 1


Basic Bibliography

Ashworth, A., Sentencing and Criminal Justice. Pages7194.Cambridge: Cambridge University Press. (5th ed., 2010).
Von Hirsch, A. Proportionate Sentencing. Pp. 115-124 in
Principled Sentencing (3rd ed., Hart Publishing, 2009).
Roberts, J.V. and Baker, E. (2008) Sentencing Structure and
Reform in Common Law Jurisdictions. In: S. Shoham, O. Beck,
and M. Kett (eds.).International Handbook of Penology and
Criminal Justice. New York: Taylor and Francis.
Seminar 2






A. von Hirsch et al. (eds) (2009) Principled Sentencing (3rd ed.,
Hart Publishing), the following readings:
Chapter 6 introduction, pp. 229-236.
Ashworth, reading 6.2, pp. 243-256.
von Hirsch 6.3, pp. 258-269.
Roberts, J.V. and Gazal-Ayal, O. (2013). Sentencing Reform in
Israel: An Analysis of the Statutory Reforms of 2012. Israel Law
Review, 46: 455-479.
Case: Blackshaw and Ors [2011] EWCA Crim 2312.
Seminar 3



Frase, Reading 6.4, pp. 270-275.In: A. von Hirsch et al. (eds)
(2009), Principled Sentencing (3rd ed., Hart Publishing, 2009).
Roberts, J.V. and Rafferty, A. (2011), “Sentencing Guidelines in
England and Wales: Exploring the new Format”, Criminal Law
Review, 9: 680-689.
Spohn, C. (2002) 30 Years of Sentencing Reform. Chapter 6, pp.
219-239 in How do Judges Decide? London: Sage.
Seminar 4





From von Hirsch et al. Principled Sentencing (3rd ed., 2009):
pages 148-162.
Ashworth, A. (2010) Sentencing and Criminal Justice. Pages
195-213. Cambridge: Cambridge University Press. (5th ed.,
2010)
Tonry, M. The Questionable Relevance of Previous Convictions.
pp: 91-116 in: Previous Convictions at Sentencing. Oxford: Hart
Publications, 2010.
Roberts, J.V. (2008) Aggravating and Mitigating Factors at
Sentencing: Towards Greater Consistency of Application.
Criminal Law Review, April: 264-276.
Case: Smith [2001] EWCA Crim 1476; [2002] 1. Cr. App. R. (S.)
61.
Seminar 5




Course Prerequisites
Erez, E. and Roberts, J.V. (2012) Victim Participation in the
Criminal Justice System. Pp: 251-266 in: R. Davis, A. Lurigio,
and S. Herman (eds.) Victims of Crime. Fourth Edition. Beverly
Hills: Sage.
Roberts, J.V. (2009) Listening to Crime Victims: Evaluating
Victim Input into Sentencing and Parole.In: M. Tonry (ed.) Crime
and Justice. Chicago: University of Chicago Press.
Chalmers, J. et al. (2007) Victim Impact Statements: Can work,
do work (for those who bother to make them). Criminal law
Review, May, 360-379.
Case: R. v. Nunn [1996] 2 Cr. App R (S) 386-387.
None
Teaching Methodology
Frontal lectures
Active participation
Language
English
Location
EPLO Headquarters, Sounion
General note
N/A
60 %
40 %