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Chapter

Cover Sentencing and Punishment

2. Structuring sentencing  

A sentencing system in which there were no controls on how the judge or magistrate came to a decision on sentence would not be a principled system. It could also lead to injustice in individual cases. This chapter examines the ways in which sentencing discretion is constrained, not only through law and guidance but also through the use of a justificatory principle as a constraint. In particular it reviews the way that more recent forms of sentencing guidance have developed, notably the definitive guidelines produced by the Sentencing Council. It also discusses in detail the importance of a retributivist rationale with reference to classical and modern retributivism.

Chapter

Cover Sanders & Young's Criminal Justice

2. Stop and search  

Alpa Parmar

This chapter examines the powers of the police to stop and search people in the context of an initial discussion of police culture and discretion in general. The development of greater powers over the last 35 years since the Police and Criminal Evidence Act 1984 (PACE) was introduced is charted. The chapter considers whether stop and search is racially discriminatory; the constraints and controls on the exercise of discretion; and the impact of stop-search powers. It argues that the working assumptions based on ‘suspiciousness’—i.e. hunch, incongruity, and stereotyping on the basis of types of people, previous records, and so forth—still play as important a part in influencing the exercise of discretion as do legal constraints. This is all true even when responding to citizen reports of suspected offences.

Chapter

Cover Sentencing and Punishment

2. Structuring sentencing  

This chapter examines the ways in which sentencing discretion is limited: a sentencing system in which there were no controls on how the judge or magistrate came to a decision on sentence would not be a principled system and could lead to injustice in individual cases. This chapter, therefore, examines the ways in which sentencing discretion is constrained, not only through law and guidance but also through the use of a justificatory principle as a constraint. In particular, it reviews the development of new forms of sentencing guidance, notably the definitive guidelines produced by the Sentencing Council, and discusses in detail the importance of a retributivist rationale. It explains classical retributivism, with a focus on Kant and Hegel, as well as modern retributivism.