Date01 December 2015
Published date01 December 2015
AuthorThe Right Honourable Sir Anthony HOOPER Lord Justice of Appeal (retired) (England and Wales); Judicial Fellow, Judicial Institute of University College (London).
Citation(2015) 27 SAcLJ 17


A Personal View

1 The question I am here to address is a question tackled as long ago as the 13th century by Thomas Aquinas. He answered the question by classifying the process of sentencing as an art as opposed to science. He likened the sentencer to an architect who determines in what style a house should be built, subject to various constraints.

2 If sentencing is a pure art, the judge would be applying his or her creative skills to determine the appropriate sentence. There could never be a “right” sentence in the same way as there can never be a “right” work of art or a “right” poem. The only “right” sentence for any individual defendant would be the one chosen, hopefully after reflection, by the trial judge. That would be the “right” sentence. How could there be an appeal from a necessarily “right” sentence?

3 Painters and poets (I hope) enjoy painting and writing poetry and, one hopes, they like the painting or poem they produce. Of course, they may change their mind later and choose to destroy the painting or poem, at least if they still own it — not a choice available to the sentencing judge, at least, unless he exercises it very quickly after passing sentence.

4 Do judges, like painters and poets, enjoy sentencing? They probably like the sentences they pass but do they enjoy passing sentence?

5 Many judges do not enjoy sentencing — I certainly did not enjoy sentencing and often sentenced or dealt with sentencing appeals reluctantly. I suppose I tried to reach a sentence which would neither be decreased or increased by the appellate court. I remember judges whose sentences were regularly appealed by defendants (and were proud of it) — leading to the apocryphal response of the appellate court to counsel saying “This is an appeal from the decision of His Honour Judge X”, to which the Presiding Judge would say: “And what is you second ground?”

But are there judges who enjoy sentencing? I shall refrain from asking for a show of hands — and even if I did ask for a show of hands, I wonder whether I would get a truthful response.

6 But if anyone can tell me why some judges sentence more harshly or more leniently than the average, I would be grateful. I suspect that those who regularly sentence more harshly have a greater confidence in the value of punishment and deterrence, and have a greater belief in “free will”, than the judges who are more lenient. I suspect that those who sentence more harshly, whilst paying lip service to rehabilitation, consciously or unconsciously, believe in passing sentences of such a length that rehabilitation is not likely to occur. I also suspect that the more lenient, whilst having empathy for the victim, if there is one, probably have an empathy for the defendant not shared by those who regularly sentence harshly. Perhaps the advances in neuroscience will let us know the answer to my question.

7 Marcel Berlins, the acclaimed legal journalist, wrote this of a

19th century judge, whom he described as one of the last of the “hanging judges”:1

We don't have hanging judges today. There are, to be sure, judges who support the death penalty and would be prepared to impose it. But the concept of the hanging judge implied more than mere support for capital punishment. It meant an unwavering belief in ‘an eye for an eye’, a refusal to accept that the act of killing could have any mitigating circumstances, an enthusiasm for putting on the black cap before announcing an imminent execution, and an element of sadistic pleasure in ordering a fellow human being's death.

8 My anecdotal experiences tell me that some judges enjoy sentencing. Sitting at lunch in various Crown Court centres around England, I often felt that some judges had enjoyed the sentences which they had passed in the morning and looked forward to the sentences which they would be passing in the afternoon. On occasions if a judge said he was going to pass a sentence of x years, others would suggest, with what seemed to me to be some relish, that x+y was the “right” sentence.

9 I remember sitting as a newly-appointed High Court judge in a court centre in England. My list of cases ran short and I offered to take cases from other judges to enable them to finish their lists earlier — it was a Friday! I then had to pass sentence on what I saw as a very vulnerable and disturbed defendant who had pleaded guilty to a charge of arson reckless as to life. I confess to having doubts as to whether the

defendant had ever actually foreseen the results of what he had done — namely set light to a sofa in his flat in an apartment building. But I have never been of the view that only guilty persons plead guilty. Faced by the prospect of an inevitable verdict of guilty (as his lawyer or cell mate advises) and, in some jurisdictions, by a far higher sentence following a trial, the temptation to “cop a plea”, as the Americans call it, must have been very strong.

10 I remember a judge from my days in practice. He was known as “five years B”— he enjoyed the title and lived up to it. At a social event, I asked him why he was known as “five years B”. He said that he had been given the name by the Bar because it was thought that the first sentence which he had ever passed on his appointment was five years. He then said with pride that he should have been called “six years B” because the first sentence he had passed on being appointed was one of six years.

11 But back to the case. I concluded that the “right” sentence was one of probation and passed it. On my way to lunch only a few minutes later, I met the judge whose case it had originally been. I do not know how he already knew, but he said to me words to the effect: “I hear you gave him probation. I would have given him five years and I have been upheld twice by the Court of Appeal when I have passed a sentence of five years in cases like this one.” Maybe I am wrong, but I felt that I had by my (as I saw it) kind offer of taking the case, denied the judge the pleasure of passing a sentence of five years.

12 Judges, like most painters and poets, may well wish to pass sentences which please the public who read about the case (especially in those jurisdictions in which judges are elected to office). When I started my criminal practice some 40 years ago, there was almost no media criticism of judges and the sentences they passed. That has changed in Britain — there have been occasions when a sentence passed by a judge has led to what I can only call outrageous and often ignorant criticism of the judge, followed even by press intrusion into the judge's domestic and family life. I believe that this has been one of many factors which has led to a harshening of sentences during those 40 years.

13 Whereas a judge, even if he does not enjoy sentencing, will like the sentence he/she has passed, the defendant, as the victim of the sentence, may well not like the sentence imposed upon him because, for example, he believes that he has received a harsher sentence than other defendants in similar circumstances. But if the defendant does not like the sentence for this reason, the victim, like the judge, may like it very much.

14 If the defendant likes the sentence because, say, it is less harsh than other defendants in similar circumstances, the victim may not like the sentence. Of course, victims differ in their views about sentence. I once had to sentence a professional golf instructor man for causing the death of a solicitor by dangerous driving. A sentence of imprisonment was inevitable. The widow told me that her husband had been opposed to imprisonment and that, in honour of her late husband's views (which coincided with her own), I should not pass a sentence of imprisonment. Rightly or wrongly, I passed a sentence of imprisonment reduced by a quarter to reflect the widow's views. Having completed his sentence, the defendant wrote an eloquent, powerful and harrowing book about his experience...

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