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2 - Sentencing and the constitution

Published online by Cambridge University Press:  05 June 2012

Andrew Ashworth
Affiliation:
University of Oxford
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Summary

Major changes in the sentencing field in recent years have raised several questions of a constitutional nature. To what extent does sentencing policy belong to the judiciary? Are there any limits beyond which the legislature may not go when legislating on sentencing? Where do new bodies such as the Sentencing Advisory Panel and the Sentencing Guidelines Council fit into the constitutional framework? What are the limits beyond which the executive may not go in determining how a sentence may be carried out? These are all live issues, but firm guidance is not always available. Sometimes the principle of judicial independence has been brought into the debate, often without clarifying matters. These and other matters will be discussed in this chapter, taking account of their implications not only for the higher judiciary but also for the magistracy and for the Judicial Studies Board.

The separation of powers in sentencing

The doctrine of the separation of powers still has some relevance in British constitutional theory, but the place of sentencing has never been entirely resolved. In principle, the legislature has control over sentencing powers and policies – subject since the Human Rights Act 1998 to the limitations of the European Convention on Human Rights (the Convention). The judiciary deals with the application of sentencing law and principles to individual offenders. And the executive is responsible for carrying out the sentences imposed. But each of these propositions requires further discussion.

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Publisher: Cambridge University Press
Print publication year: 2005

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