Sentencing: New trajectories in law By E.A.O. Freer, Abingdon: Routledge. 2021. pp. 131. £44.99 (hbk); pp. 146. £16.99 (pbk). ISBN: 9780067862619; 9781032063027

Abstract

The author of this book, Elaine A.O. Freer, makes evident that the work does not attempt to cover all sentencing law, nor is it a systematic analysis of sentencing comments. Rather, the aim is to examine what can be understood as the five statutory sentencing aims and objectives that judges must consider in England and Wales: punishment; deterrence; rehabilitation; protection; and reparation (Sentencing Act 2020, s. 57(2)). Moreover, rather than viewing these aims from an abstract perspective, the author seeks to shed light on their implementation in practice – examining the process and purpose of sentencing, beyond the confines of its legalistic aspects. To do this, the author draws on cases in which the author, a practising barrister, was involved, and comments made by judges during sentencing. Chapters are titled and ordered by sentencing aim, allowing the reader to engage in the chapters on a stand-alone basis or as a whole. This book focuses only on the sentencing of adults.

The introductory chapter does, as the author notes, the ‘heavy lifting’ (p.19) in laying the foundations for this text. The author provides concise but comprehensive information on sentencing disposals in England and Wales, referencing legislation extensively throughout. This greatly enhances the accessibility of the book to a wide audience, appealing to those at all stages of academia, researchers and legal practitioners. Those with a limited background in law will find this chapter to be particularly insightful and relevant when engaging with the rest of the book.

The first chapter considers sentencing as a means of punishment. The author suggests that ‘the criminal justice system has adopted an overly simplistic obsession with punishment, driven by politicians’ misunderstanding of what the public actually want to happen to those who break the social contract by offending’ (p.21). To that end, they question whether imprisonment is the punishment or for punishment, discussing Sykes's (1958) pains of imprisonment. Reflecting on whether punishment can be administered via other sentence types, the author posits that legislature has overlooked the individual experience of punishment – that is, that each person experiences punishment differently, based on their own circumstances. For some, the deprivation of liberty through imprisonment may be less impactful than a community order sentence. Within this scope, the author notes the impact of gender, and the additional pains of imprisonment that can be observed in the 21st century. The author also reflects on public misunderstandings of sentences, fuelled in part by erroneous media reporting. The author concludes that a modern approach to punishment should consider the factors that lead to offending, and moreover, that increased public awareness of sentencing and the reasons why certain sentences are imposed, would be beneficial.

The second chapter reflects on sentencing to reduce crime and as a deterrent. In doing so, the author notes that judges’ conflation of punishment and deterrence makes it difficult to separate Chapters 1 and 2. Indeed, the author suggests that punishment and deterrence may be different sides of the same coin – one looking backward and punishing the offence, the other looking forward and deterring future offences. Drawing on this, they describe the concept of general deterrence, which aims to deter wider society, and specific deterrence, which focuses on the individual receiving punishment. Further, the author contrasts primary and secondary desistance, the former being the temporary cessation of offending behaviour, while the latter is the transformation of identity from an offender to non-offender. They argue that in England and Wales, the system struggles to provide opportunities for secondary desistance to occur, while discussing relevant efforts (e.g., the privatisation of parts of the National Probation Service's role through the use of Community Rehabilitation Companies). The author again looks to the role of the media, positing that for sentences to adequately deter potential offenders, they must be reported on correctly. Finally, they discuss the ‘Sword of Damocles’, first proposed by Cicero (pp.58–59). This proposes that if an individual knows that they will be punished, and that their punishment will be definite and immediate, they are less likely to offend. In this way, the threat of punishment may be enough of a deterrent.

Chapter 3 reviews sentencing as rehabilitation. This chapter, in the author's words, ‘stands part opposition, part reinforcement to the previous chapter, offering rehabilitation as both the opposite of punishment and yet also something that can serve as punishment itself’ (p.66). The author notes that a significant criticism, and indeed, great shame, may be that rehabilitation features only during the sentencing stage, by which time the defendant already has a conviction – the collateral impacts of which will be experienced. This chapter focuses largely on suspended sentence orders (SSOs) and community orders (COs). Again, the author notes disparities between public or victim's attitudes to sentencing and political imperatives, further advocating for increased public awareness of sentencing practices.

Chapter 4 looks to sentencing as protection. They consider the four primary recipients – the victim, potential future victims, society as a whole and in some cases, the defendants themselves. The author observes that the idea behind the application of the sentencing aims is that, in combination, they reduce future offending and, as a result, protect all parties from the negative effects of offending behaviour. However, each method of providing protection may have different reaches. The author goes on to say that the two main ways in which a focus on protection is visible is in mandatory minimum sentences and specific sentences for dangerous offenders. Building on this, the author reflects on the idea of dangerousness, asking: who is a dangerous offender? Again, the wide accessibility of this book is evidenced, as the author provides comprehensive detail on the offences that render an offender ‘dangerous’, exploring how the level of dangerousness is ascertained, and the accompanying available sentencing options. Further, the use of judges’ comments proves invaluable within this chapter. For example, in discussing the protection of society, the author highlights two cases in which the judge remarked on the good character of one and the need for community protection from the other. The author is critical of mandatory minimal sentencing, suggesting that unless the period of imprisonment is used to better equip the offender for a law-abiding life upon release, they are no more effective than a period of time set by a judge. Moreover, they point to the use of some sentences which may protect the community in the shorter term but come at a prohibitive cost to the offender. The author concludes by taking a wider comparative approach in this chapter, reflecting on the continued use of capital punishment in the United States and its stark contrast with the Norwegian approach.

Finally, Chapter 5 considers the aim of sentencing as reparation. Within this chapter, the author discusses restitution orders, the victim surcharge, court costs and COs and SSOs. They note that reparation is integrated throughout the sentencing process and highlight the importance of compensation within the criminal justice system by drawing attention to its mandatory nature. The author does not shy away from controversial elements of sentencing, for example, the victim surcharge. Within this chapter, the author also dedicates time to reviewing restorative justice procedures. While the use of restorative justice falls outside the remit of this book (applying to out-of-court disposals), the author identifies the strengths and challenges of this approach. Further, they note that a weakness of the English and Welsh system may be that restorative justice techniques are not available as a diversionary tactic, and instead rely on there being a conviction before it can take place.

In conclusion, this book seeks to illustrate the variety of judicial aims in sentencing and the ways in which they manifest in the day-to-day running of the magistrates’ courts and the Crown Court. By using real sentencing remarks, the reader can ‘examine the theory through the prism of practice’ (p.127). Indeed, as the author points out, these sentencing remarks illustrate the difficult sentencing decisions that judges must undertake, even with sentencing guidelines in place. It is through these real-life examples that the gulf between practice and theory can be observed, and that the abstract becomes real.