I think what you've hit on, possibly without realising it, is why so many people get irritated with the judicial system. They react in an emotional and subjective way to a case that they hear or read about, and then perhaps consider a sentence, which has been handed down according to very strict and obectively thought-out rules, is lighter than their subjective view would expect or prefer.

I agree with your frustration at the judicial system - but I think it is the inconsistencies that are clearly evident that frustrate people. Take Chev Walker, Ben Cockayne and Leon Pryce, all were convicted of assault all first time offences all got differing sentences from custodial to suspended!! Anyone who saw the footage of Cockaynes would be shocked at the sentence he received. As for Pryce and his father's pleading letter - the less said the better!!

If you take time read the sentencing guidelines - one of its major aims was to achieve greater consistency in sentencing.

Very few cases are identical. There are usually differences in the severity of the offense, the degrees of harm caused and the culpability of the offender. The offenders' circumstances are usually different, they show different levels of remorse and/or co-operation with the police and/or probation services.

Sentences will take into account how the defendent might have responded to previous sentences. Or whether they were on bail at the time of the offense. Defendents might enter guilty pleas at different stages in the proceedings. Financial penalties are based on the defendent's income, subject to caps.

Some defendents receive lighter sentences than they might otherwise have because of the basis on which they plead and whether the CPS decides its in the public interest to accept that plea rather than go to trial.

Sentencing isnt an exact science. Its not a case of entering all the facts into a computer and out pops a sentence. Judges exercise judgement. Sometimes their judgement seems to be inconsistent, although that might be at least partly down to how a particular case is reported.

I used to have a link to "The Bench Book" which was the actual guidelines given to magistrates for the types of offences that you highlight, if you read the guide then you'll soon see why two cases of assault can attract totally different sentences, indeed you'll see why there is no such thing as a default sentence for assault, or indeed a "default" assault.

Eh? How did you leap the almost infinite chasm from "Virtually everything we do in life requires subjectivity," which I dispute, to that?

Weird.

Leaving that aside, yes every decision you make requires you to use your brain.


Here's the interesting thing; what if you actually are? (I presume, automaton)

We all like to think that we are in control, and that we make reasoned choices about stuff, but do we?

First of all, whilst it is a subject of debate as to the precise percentage, your SUBCONSCIOUS brain deals with well over 90% of your activities. Indeed, many of the scientists at the cutting edge of research into consciousness suggest that your subconscious mind is really in charge, to all intents and purposes, and that your conscious mind is not much more than an interface with the outside world, it sort of learns and detects new outside stuff, but then handles it only for so long as it takes the subconscious mind to learn it, and after that, its role in that is finished, the subconscious has assimilated it, like some sort of Borg.

Now, we each are built according to our genome, and that includes our brains. Each decision must result in a yes or a no, so a simple binary system. I appreciate that if you have a complex decision to think about, the ultimate result may be the product of a zillion different matters being processed until eventually you arrive at a decision however ultimately when you have it figured out, that last synapse will then fire either a yes or a no, a zero or a 1, and you'll either do it, or you won't. What if, genetically, that signal, or the route of signals, was pre-disposed to a couple of 1 branches instead of a couple of zero branches, and so because you were made that way, you are ultimately bound to decide the other way?

This is if you believe, as I do, that the decision making process is just a complex neural physical activity. I don't believe there is anything else, i.e. nothing "non-physical" making an input.

Therefore it may be that every single thing you do, or don't do, is the inevitable result of your genetic make-up; for any given decision, because of how your genes are arranged, the pinball of decision CAN ONLY take one route, and whilst you think you "chose" X, it was, in fact, physically impossible for you to choose Y. Of course, you might "learn" from that, and next time, because of teh consequences, your brain might hae easioly re-arranged the synapses and the connections so that if given the same decision to make it would now be the opposite - but that is the equally a blueprint, and not a "decision" in the sense you have a true choice.


That's straightforward, there are many areas where either there is no statute, or else the situation is novel, or else on occasion a statute does turn out to be ambiguous, and in those sort of cases obviously we get what is usually termed "judge-made law". The point is that they can only do this if there isn't, in effect, a law passed by Parliament for that particular circumstance. If there is, they can't countermand it.


I think you're unnecessarily introducing subjectivity into the sentencing concept. The judge HAS to be objective and the whole system is predicated on precedent, and consistency in sentencing.

No two offences and no two offenders are the same. The judge needs to decide where, within the range of sentencing options for that offence, it falls, and needs to decide where, within the scale of criminality, the defendant lies, both in terms of that particular offence, and his previous character and antecedents. Further, the judge has to give due weight to the mitigation put forward. How I would answer your question is that I believe most judges would carry out this complex analysis with objectivity, that is, doing their best to pass an appropriate sentence based on these objective guidelines etc. It is trite to say that the actual sentence itself must be subjective, from the perspective of the offender - it could hardly be anything but, as it is tailored only to him - but that does not mean the judge didn't act objectively.

And you could easily have a system where the sentence was already known. All parliament would need to do is prescribe fixed sentences for any given offence. The reason you might get a variation in sentence from one judge to another may lie in their genome (see above) more than any lack of objectivity on their part.

At last - the last paragraph is what I have been trying to say all along, that sentencing is subjected to the views - albeit within certain guidelines - of judge.

Sal Paradise wrote:At last - the last paragraph is what I have been trying to say all along, that sentencing is subjected to the views - albeit within certain guidelines - of judge. But the emphasis you place is the wrong way round. The judge (indeed, any sentencing court ‘must follow’ any relevant sentencing guidelines unless it would be contrary to the interests of justice to do so. It is not the judge's personal views that are in any way relevant. They may or may not co-incide with the sentencing guidelines - there are frequent cases where the sentencer is reported as saying that they think their sentencing powers are insufficient, for example - but such a view is not a reason permitting them to depart from either the sentencing guidelines if any, or earlier sentencing authorities, if there happens to be no guideline published. You might want to have a study here: http://sentencingcouncil.judiciary.gov.uk/sentencing-guidelines.htm

Sal Paradise wrote:At last - the last paragraph is what I have been trying to say all along, that sentencing is subjected to the views - albeit within certain guidelines - of judge. But the emphasis you place is the wrong way round. The judge (indeed, any sentencing court ‘must follow’ any relevant sentencing guidelines unless it would be contrary to the interests of justice to do so. It is not the judge's personal views that are in any way relevant. They may or may not co-incide with the sentencing guidelines - there are frequent cases where the sentencer is reported as saying that they think their sentencing powers are insufficient, for example - but such a view is not a reason permitting them to depart from either the sentencing guidelines if any, or earlier sentencing authorities, if there happens to be no guideline published. You might want to have a study here: http://sentencingcouncil.judiciary.gov.uk/sentencing-guidelines.htm