The Gazette 1993

GAZETTE

NW JUNE 1993

! various judges over a wide geographical ; area and between three different courts, the variations of approach can often I take on alarming dimensions. | Newspapers, in city areas, never report | sufficient of the facts of the case to enable the public to make an informed decision as to whether a sentence was ! right or wrong. Even taking the isolated j factors which are reported it is clear that there is room for disquiet on sentencing. There appears to be a lack of uniformity in approach and factors which would i appear to weigh heavily with one judge ; are of minimal relevance to others. The approach of the common law has s always been geared towards individual : judicial discretion but it is now obvious that it no longer suffices where the victim and the accused have already access to media reports which can in some cases show a legitimate cause for grievance on the tariff imposed in their particular cases. In England and in New Zealand it has long been the case that appellate courts, considering as they do both prosecution and defence appeals, will lay down tariffs for various forms of offence. In Tieman the Court of Criminal Appeal expressly refused to adopt such a policy in respect of sexual offences. As the Commission indicates, it is clear that what is missing is a network of fundamental principles underlying the i exercise of judicial discretion which will tend to direct the judge's mind, in any particular case, towards those factors which society considers of importance and which, therefore, reduces to a minimum any element of judicial discretion. In the scrupulously researched review of the approach in other jurisdictions, universal criteria, enshrined in legislation, are quoted and examined. Thus factors relevant to : sentencing may include the degree of intention, premeditation or planning; the level of participation in the offence; whether a weapon was used; whether the offence was systematically committed for profit; the extent and nature of harm to victims; whether the offender was resourceful or unrepentant; whether there was provocation or duress falling short of a complete defence; the effect on the victim and any jury recommendation for mercy. Factors can I also be listed as being irrelevant, such as the prevalence of the offence, the

| defendant's choice not to give evidence and his requirement that the State prove their case against him (by pleading not guilty). Apart from general sentencing guidelines particular sentencing guidelines can be applied in respect of individual offences. Examples would include the degree of intoxication in drunk driving or the sexual experience of a victim of a sexual offence. Rejecting the idea of a mandatory sentence, or minimum sentence, the Commission instead recommends a Í sentencing policy based on a "just i deserts" approach and highlighting the matters to which the court must have regard, and must disregard, in j sentencing an offender. Legislation would set out those matters which might aggravate or mitigate a sentence. With the abolition of jurors in most I personal injury cases in 1981 | practitioners felt that the Incorporated Council for Law Reporting ought to produce a book of quantum in respect of i various injuries. This would require research and the compilation of statistics and accurate case notes over a vast range of decided cases. At least, at that point, access would be possible to the information that practitioners need. The Commission are clearly disquieted by the inability of interested parties to have access to both relevant sentencing precedents and, more importantly, information on the follow through process with the offender, or a choice of a range of suitable options, based on statistical experience, for sentencing. Thus they recommend an organised judicial study on sentencing by a body charged with the development and supervision of judicial education and I the compilation and publication of j sentencing statistics and other I information and material. | Commission's overall aim to replace the j inarticulate aims of society with clear legislative guidelines, and to put in the place of judicial discretion a guided policy laid down democratically, is set out. The Commission seeks further views on five matters, including whether judges should participate in plea negotiations to the extent of indicating, in advance, the sentence they intend to impose. In a list of recommendations, summarised over eight pages, the

! With a report of this complexity, the j recommendations as wide-ranging and requiring so much work from our elected representatives, it may well be that the attractiveness of their reasoning will lead to no result. Meanwhile the rest of us will fail if we do not, at least, push the politicians' noses to the grindstone.

Peter Charleton

The Irish Student Law Review Vol. 3 (1993)

Dublin, The Law Students' Debating Society of Ireland, 1993, 195pp, IR£10.00. Morton J. Horowitz , an American ; educator, has noted that the law is an odd profession that presents its greatest scholarship in student-run publications. [Newsweek, September 15, 1975.] Not I only is The Irish Student Law Review a j student-run publication, but the contributions are written by students. Some contributors are undergraduate students; others are pursuing ; postgraduate studies. Eoin O'Dell, now a lecturer in law in I Trinity College, Dublin, is this year's editor. The assistant editors are Cliona Kimber who has contributed an article entitled "Enforcing the Peace: Multinational Forces in the UN", and Jim O 'Callaghan. The editorial team also consists of two previous editors, Oisin Quinn, the editor of volume 1 (1991) and Anthony Whelan, last year's | editor, a lecturer in law in Trinity College, Dublin, and the editor of Law and Liberty in Ireland (Dublin, 1993), anniversary of the founding of Trinity College, Dublin. The composition of the collective editorial board brings the words of the anonymous commentator to mind: "Even as there are laws of poetry, so there is poetry in the law." Equally appropriate is the voice of Oliver Wendell Holmes that "law is the calling of thinkers." ["The Profession of j the Law," Speeches, 1934.] | Among the articles that will appeal to (Continued overleaf) an imposing collection of papers published to celebrate the 400th

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