ANDREW ASHWORTH

Third Edition (2000) Butterworths

ISBN 0 406 91 490 7

and

Third Edition by Martin Wasik (1998) Blackstone Press

ISBN 1 85431 681 8

These two books provide handy guides to the many directions in which sentencing has taken itself over the past five years. Many will remember the late Christopher Emmins and his original concept of ‘a practical approach to sentencing’ which is now in its third edition as ‘Emmins on Sentencing’. It’s always a refreshing’ almost ‘comfort’ book to read but I suggest that Ashworth has the greater authority, especially for specific forms of words which can be used in mitigation.

I think Emmins would strongly approve of the changes which Martin Wasik has made to his original work in order to create a definitive manual of pure magic for the newly qualified lawyer as he or she prepares to mitigate for real for the first time. So well done, Martin. It is most helpful to have all the handy hints in one place with detailed case reference points and saves the trouble of going immediately to the loose-leaf reference manuals. But there is a word of warning, cross-refer! If you put the depth of knowledge of both books together, you have your legal research under one roof.

However, I have to say that for pure academic depth and perspective, Professor Andrew Ashworth’s ‘Sentencing and Criminal Justice’ is the heavyweight publication in all senses. I suggest that this is the case because some concepts remain difficult to follow in places, especially when you are faced with advising the client on the likelihood of his possible sentence based on what is clearly a tariff system even though some judges deeply resent this term.

Of course, whilst the current edition of Emmins is the earlier publication (1998), Ashworth has the useful benefit of being able to comment on recent legislative moves by the New Labour government including the Crime (Sentences) Act 1997, the Crime and Disorder Act 1998, the Youth and Criminal Evidence Act 1999 and the important Powers of Criminal Courts (Sentencing) Act 2000. Ashworth will always be deep, intellectual and dryly academic to some reader, but that aspect can be used to an advocacy advantage whenever issues such as the elements of proportionality are raised in court at the PSR stage.

I have found it very helpful to be able to weigh issues in the wider criminal justice system, and being able to compare those issues with the key issues in sentencing policy which the client is worried about. The term ‘Proportionality’ itself is as important a word for the lawyer as ‘transparent’ is to a politician today for proportionality is fast becoming the new buzz word for anything European or administrative where a government is in conflict with the citizen who pays the bills.

Chapter 4 of Ashworth covers proportionality extremely well because he merges the theoretical with the practical and dwells on both human rights and European law with a balance of fairness which runs as a consistent stream throughout the book. Emmins takes an altogether different stance with a ‘hands on’, ‘jackets off’ approach which gets down to basics quickly. A most useful ‘quick at a glance’ solution when you might have a number of clients needing your attention for sentence on the same day. So which is the better of the two publications? Dare I make a value judgment here!

Well, I do. Of the two, Ashworth shows the depth and I would be minded to use him to cover much more serious offences where custody is not in doubt. I would probably use him for special types of offence where the mitigation may require an unusual and, possibly, rather detailed approach without too much reference to previous Court of Appeal decisions. After all, there is always the problem of boring the bench to death as their eyes gradually glaze over when you are on your fifth authority. There are some useful new guideline judgments from the Court of Appeal which are discussed in reasonable detail.

But don’t forget or dismiss Emmins as just a PQ +1 starter for the newly qualified. He has strong merits throughout, especially for sentencing in the Magistrates’ Courts. Sentencing has continued its evolution at a rapid pace and the old ‘practical approach’ concept from Blackstone Press still maintains a usefulness for the busy and harassed criminal practitioner/advocate.

When it comes to the Pre-Sentence Report which one should I use? The typical way out is to say both because the standard of a Probation Officer’s report can be widely different, often depending on the attitude of the subject, (and not the probation team I hasten to add.) Ashworth clearly has an academic use within applied criminology, for postgraduate criminal justice studies (including Bar Vocational Course sentencing topics), and for the practitioner and advocate.

It would be nice to feel that the Magistrates’ Courts and Crown Courts made more reference to both publications although I fear they will not because of the pressure of their tasks. Ashworth’s great benefit is his discussion of the influence of statements made by politicians, public opinion and the mass media. This is quite important point to consider after the perceived public reaction to the ‘get tough on soft drug users’ campaign by certain groups in the autumn of 2000.

To be fair to Emmins, the book was published two years ago so it is bound to miss new developments even though it is written in a clear and reader-friendly fashion. Wasik does concede that it is not always possible to describe and explain the law as clearly as he would like because of the obscurities within the criminal justice system which he rightly says cannot be ignored.

Of particular importance to both publications are the sections dealing with youth crime, and the direction in which the Court of Appeal is traveling at present. Ashworth has a useful piece on the role of the Sentencing Advisory Panel which is well worth reading. So, for a most recent tour around the sentencing system, get Ashworth, but you might find yourself embracing Emmins initially for the quicker solution. In any event, they are both eminently readable and a worthwhile addition to your library. Get them today because they’re worth it!

Mr. Taylor is the Barrister Desk Editor for The Malet Street Gazette.