Chapter Eight - Personal mitigation

Summary

Personal mitigation casts into sharp focus some fundamental issues about sentencing principles and judicial discretion. Is justice best served by sentencing the offence or the offender? What balance ought to be struck between the two? Surprisingly, mitigation has been an under-researched topic, despite its evident significance in the sentencing process and the contentious issues it raises (Ashworth 2010: 168–94). Previously, the only detailed empirical study that specifically focused on the role of mitigation in the English criminal courts was that of Shapland (1981), who examined the mitigation deployed in the sentencing of one hundred adult defendants in magistrates’ courts and the Crown Court. Other empirical studies of sentencing that have explored mitigation include Flood-Page and Mackie (1998) (on sentencing practice in magistrates’ courts and the Crown Court), Hedderman and Gelsthorpe (1997) (on the sentencing of female defendants by magistrates) and Parker et al. (1989) (on the sentencing of young offenders by magistrates).

CHAPTER OVERVIEW

In this chapter we present key findings of an empirical study conducted in England and Wales which addressed the following two questions:

• What is the role of personal mitigation in sentencing decisions made in the English criminal courts?

• What are the main components of personal mitigation?