Although they play the role of “referee” during trials and hearings – especially in adversarial systems – at the heart of the judicial system sit magistrates, judges and coroners.
This part is focused on the people. The next part will focus on the court system itself.
A Welsh Justice System XII: A Welsh Court System
The final piece of this chunk of articles on the judiciary and independence focuses on the structure and make-up of...
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It’s a basic principle of judicial independence that judges – not politicians – decide what sentences are handed down or rulings are made at the outcome of cases. In common law systems (Part IVa) – like England and Wales is currently – previous judgements play a role too.
The role of lawmakers/politicians is to decide what counts as a crime in the first place and to set the boundaries for punishment or compensation. There are limits to this, such as a Constitution or Bill of Rights which guarantees certain freedoms, the European Convention on Human Rights (ECHR) as well as judicial reviews.
Prosecutors decide whether someone has broken the law in the first place and should face a charge.
Aside from some low-level offences where you get on-the-spot fines, if pleading or found guilty the judiciary/judge then decides what the sentence or punishment should be.
The general principle of sentencing is that punishment should fit the crime (or civil wrong). Some of the factors that would be considered in deciding the “seriousness” of an offence include:
- Aggravating circumstances (i.e. using a weapon vs threatening to use a weapon vs no violence).
- How much blame can be attached to the accused? Going out of your way to commit a crime/premedication will be viewed more harshly than not being in control due to mental illness or some other reason.
- The circumstances of the victim; taking advantage of a vulnerable person or committing a hate crime will be viewed more harshly.
- The impact on victims in terms of mental health, personal loss or property loss.
- The circumstances of the accused (i.e. stress, drug addictions, they look after vulnerable relatives, expectant mothers).
- Previous convictions and a history of reoffending; first-time offenders may be treated less harshly than repeat offenders depending on the seriousness of the crime or civil wrong.
- The plea and demonstrating remorse – guilty pleas usually come with more lenient sentences than not guilty pleas as it saves money, time and spares victims from going to court.
- Possibility of rehabilitation – what type of sentence would be most likely to prevent reoffending or make the accused change their behaviours.
For now, it’s worth considering how an independent Wales could draft sentencing guidelines.
At the moment, sentencing guidelines are drafted by the Sentencing Council5. The Council is made up of representatives from the Crown Prosecution Service, the different tiers of courts (magistrates, district judges etc.), the police, victims’ group representatives, representatives from the legal professions and members of the public/lay members.
All proposals for changes to sentencing guidelines go out for public consultation, while the Council also commissions research and monitors how sentences are applied.
This is probably the only practical means of doing it in an independent Wales too. The members could be appointed by the Law Council (Part X), though they would be expected to act autonomously. They can’t be ordered, pressured or forced to undertake reviews of sentencing. However, public opinion – and the opinion of lawmakers – may determine which parts of sentencing are reviewed and when.
Other options would include leaving sentencing to judges and magistrates to decide by themselves on a case-by-case basis within the bounds of the law. Codification of criminal law is another option, which would include sentencing guidelines (to an extent) by default (Part IVa).
5: The Sentencing Council, (December 2021). About the Sentencing Council. Available at: https://www.sentencingcouncil.org.uk/sentencing-and-the-council/about-the-sentencing-council/
