Jean-Yves Gilg

Editor, Solicitors Journal

From the Archive - May 30, 1896

From the Archive - May 30, 1896


The inequality of sentences

Last week, at the Old Bailey, a man was sentenced to seven years' penal servitude (the maximum penalty) for bigamy. It was one of the worst cases of its kind which it is possible to imagine. The prisoner first married a lady with property merely for the purpose of swindling her, the legality of the marriage being apparently an accident as far as he was concerned. After living with his wife for a few weeks, he obtained possession of a considerable sum of her money, and deserted her. Not long after he went through the ceremony of marriage with another lady, and, after living with her a short time, got a large sum from her and disappeared. This was the offence for which he was convicted, having been arrested when on the verge of committing a similar crime against a wealthy widow. The prisoner had been several times previously convicted of serious offences against property.

A few months ago a poor woman was tried for bigamy. She had been shamefully ill-treated by a brutal husband, who left her destitute and lived with another woman. After several years she agreed to live with another man, a respectable man who knew her history; and, in order to avoid scandal amongst his neighbours, who were ignorant of her story, they went through the marriage ceremony. The sentence on this woman was one day's imprisonment. No one, probably, will raise any objection to the fairness of either of these sentences, unless it be that the maximum in the first case was too light for so heinous a crime.

These cases clearly illustrate the enormous difference in guilt there may be between two persons convicted on precisely similar indictments, and shew how impossible it is to lay down any hard-and-fast rules to bring about the much-talked-of uniformity of sentences. The only way to make the penalty fit the crime is to entrust the measurement of the punishment, within certain limits, to a tribunal which can take all the facts of the case into consideration, and to select proper persons to compose that tribunal. Many chairmen of quarter sessions, although they have power to inflict long terms of penal servitude, have very little technical knowledge or experience, and their sentences are often extremely capricious, and certainly are more severe on the average than those of the High Court judges in similar cases. But even if every criminal were sentenced by a man of the greatest experience, ability, and probity, there would still be wide room for differences of opinion.

Allowing, then, that hard-and-fast rules are out of the question, how is it possible to adjust the inequalities in sentences arising from the individuality of one judge and the inexperience of another? This question was answered by a council of the judges of the Supreme Court in 1892, who reported in favour of a Court of Criminal Appeal with power (inter alia) to review all sentences. The existence of such a court would probably do as much as it is possible to do towards securing uniformity without sacrificing fairness. In the four years, however, which have elapsed since that report was made no step has been taken to carry it into effect, and the only existing check upon eccentric sentences is the makeshift one supplied by the extra-judicial interference of the Home Secretary. The constitution of a court of criminal appeal, possessing the wide powers demanded for it by many influential persons, is a very serious undertaking, but it may well be urged that the power to revise sentences might be conferred on the Court for the Consideration of Crown Cases Reserved, without finally deciding other questions. To prevent the abuse of the right to have sentences revised by the bringing of frivolous appeals, it might be provided that an appeal against a sentence should only be brought by leave of a judge in chambers, obtained ex parte on behalf of the prisoner.