Appeal Court Judge defends 'legitimate' sentencing in policy brief published today

18 August 2011

As judges face growing criticism for 'disproportionate' sentencing of Facebook rioters, former Appeal Court Judge Sir Mark Potter has made a strong defence of judicial discretion in sentencing, arguing that, "€œit is part of [judges'] function, to have regard to public opinion"€ when handing down sentences, in a FLJS policy brief published today.

Sir Mark, who chaired the Lord Chancellor's Consultancy Panel advising the government on reform of the legal profession from 2000 to 2005, argues that certain cases do necessitate a degree of judicial discretion and that, although experts want to produce norms scientifically, "€œone has to accept that many matters reside in the conscience of the judge"€ in order to do what is just.

Sir Mark acknowledges that, in gauging public opinion, judges are largely reliant on the responsible media, citing instances in the 1990s when sentencing guidelines in cases of rape and causing death by dangerous driving were amended to better reflect public sentiment.

The policy brief also examines Lord Neuberger's report into the recent super-injunction controversy, and the Lord Chief Justice's ruling this year on the use of Twitter during court proceedings.

The policy brief emanates from a workshop held in Oxford in July, which examined the influence of the media on the judiciary and politics, a report of which is also published today.

Download:

Do the Media Influence the Judiciary?
Sir Mark Potter, former President of the Family Division, High Court of England and Wales

Report: The Court of Public Opinion: Justice, the Media, and Popular Will
Matthew Barker