Book Reviews 99

SENTENCING PRINCIPLES AND MAGISTRATES SENTENCING BEHAVIOUR, by Ralph Henham, Gower, 1990, 244 pages, Price £30:00.

The magistrates courts are the busiest courts in the English crim- inal law jurisdiction, dealing on a local basis with over over 90% of all criminal court work. The bulk of their cases are guilty pleas to summary, and triable each way offences. In terms of quantity there- fore, magistrates are key sentencers faced with the difficult task of implementing the ever more pressing requirements of sentencing pol- icy, and administering summary justice within a framework of local perceptions of crime, and first hand experience of social and economic problems within the area of their jurisdiction. As sentencers they have been criticised on the basis cf disparity, and doubts have been expressed about the capacity of an unqualified and socially unrepre- sentative bench to perform its complex judicial function in a consis- tent and unbiased manner.

It is surprising, therefore that there has not been a wider devel- opment of research on the approach of magistrates to their sentenc- ing function, and that our understanding of factors which influence their practice is not more highly developed. Within such a context, Henham's account of his research into sentencing practice within the magistrates courts provides a limited, but useful contribution.

Henham provides an account of a small scale research project in which the operational magistrates, and court clerks in one represen- tative petty sessional division are interviewed. The key purpose of the project was to enable improved assessment of the influence of Court of Appeal sentencing principles upon sentencing practice in the magistrates courts. In addition Henham, reflecting the approach of Hogarth, considered the influence which individual backgrounds of magistrates may have on their sentencing approach. Finally, Hen- ham sought to establish which factors are important in the adoption of sentencing objectives by magistrates. Such a range of objectives is clearly an ambitious one, particularly, in relation to a small scale study which was limited in terms of sample and resources.

Within the sample there did not appear to be a problem of com- munication of sentencing principles by magistrates clerks who ap- peared able to keep abreast of current developments. Moreover, magistrates appeared to value advice from their clerks and training sessions on sentencing. Despite apparent interest in this area, how- ever, Henham records a high level of ignorance by magistrates of

100 The Liverpool Law Review Vol. XIII(1) [1991]

key sentencing principles. In this respect magistrates were asked to outline their approach to sentencing questions which were structured to reveal knowledge and readiness to apply Court of Appeal guide- lines. For example, magistrates were asked whether they would allow discount for a guilty plea, 86 out of a sample of 129, thought that they would either give little, or no effect to such a plea. This is despite the existence of a clear sentencing principle to the contrary. Similarly, 57% of the sample thought that there should be no allowance in mitigation for previous good character, and 75% thought that sentence should be increased on the basis of previous convictions, despite contrary principles in both instances. Out of thirteen principles tested, magistrates views differed from correct sentencing principles in seven instances. What explanations may exist for such deviation?

Henham refers to a structural issue. This is that sentencing prin- ciples are Court of Appeal responses to Crown Court decisions. As such, they deal with issues likely to occur in the Crown Court. This is a sentencing tribunal with greater legal powers and a different structural role from the Magistrates Court. The Crown Court deals more extensively with criminal trials, which tend to be much more expensive in time and resources than the comparatively few trials heard by magistrates. For Crown Court judges, as opposed to magis- trates, the principle that credit should be given for a guilty plea is an idea which is relevant, and capable of ready identification with a purpose, that is, the avoidance of expensive and time consuming trials. On the other hand magistrates, deal predominantly with guilty pleas, and such a principle is understandably difficult to comprehend and of limited relevance. Such a structural issue raises the question of whether Court of Appeal sentencing principles, based on appeals from the Crown Court are a suitable means of regulating the discretion of magistrates.

There is also an ideological issue raised by this aspect of Henham's work. This is the extent to which sentencing principles designed by legally qualified judges for other such judges whose so- cial and structural experiences are broadly similar, are capable of meaningful application by magistrates who have a very strong per- ception cf their particular role as local lay sentencers. Henham ob- serves that the magistrates in his sample saw it as their role to ex- ercise their sentencing discretion on an individual basis in order to produce the right result for each case. Parker's more extensive study also notes the concern of magistrates with indivisualised justice. His

Book Reviews 101

also notes the concern of magistrates with indivisualised justice. His magistrates employ all the sentencing information available to them, placing particular reliance on social enquiry reports, to make moral assessments of defendants, combined with estimations of how best to sentence in order to prevent crime within their community. Again, from such a structural and ideological perspective it is not surprising that abstract sentencing principles emerging from Crown Court matters are not seen by magistrates as closely relevant to their sentencing task. The recognition that magistrates adhere to a very particular perception of their sentencing function may also offer some explanation for Henham's other findings. These include an appar- ently limited influence of the individual backgrounds of magistrates upon their sentencing approaches and are a marked degree of flexi- bility in relation to sen[encing objective, and choice of penal dis- posal.

Henham does not explore these complex issues of structure and ideology in any great depth, which is a necessary undertaking if his research objectives are to be achieved in any substantial sense. He emphasises, however, from the outset that his project is a relatively small scale one with limitations of time and resource. What he does produce, is a set of data, presented in an accessible manner, which is likely to be of some value to those involved in research and analysis in this area.

Paul Cooper"

EASSON'S CASES AND MATERIALS ON REVENUE LAW, 2rid ed. D.R. Salter and John B Kerr, Sweet & Maxwell, 1990, 577 pages, Frice £30.00 (pbk.).

The use of casebooks of one variety or another by students does not meet with universal approval from law teachers. The major criticism being that they may deflect the student from the difficult but important task of actually reading and analysing primary source material. This criticism could become more intense bearing in mind current thinking on skills development within legal education. Ne- vertheless , without wishing to make a political statement, the

* Senior Lecturer in Welfare Law and Social Policy, Liverpool Polytechnic.

102 The Liverpool Law Review Vol. XIII(1) [1991]

pressure on law library resources in terms of budgetary control and, in many institutions, increasing numbers of students means that case- books will become an increasingly important source of material. The pressure on student time would also encourage their use. The debate as to whether or not the use of casebooks is to be approved could go on ad infinitum. In short, this reviewer is a supporter of those cases and materials texts which provide the student with a broad selection of cases together with enough critical comment to stimulate thought and, hopefully, interest in the particular subject. Enough of this, however; attention will now focus on the quality of the text under review.

The authors of this second edition, Messrs. Salter and Kerr, state in their preface that they have adopted the style and format of the first edition. A wise decision if I may say so. It is attractively pre- sented and the contents pages and index whilst comprehensive are clearly set out. The spacing of material within each chapter com- prising, inter-alia, cases, reports, notes and footnotes is uncramped and easy on the eye which helps make the book eminently readable. This may seem trivial but it cannot be said for all such texts and at the end of the day the book is there to be read!

The book comprises 20 chapters. In broad terms, Chapters 1 to 4 inclusive deal with introductory matters and fundamental principles of the tax system. Included in this section is tax avoidance. Income Tax is the subject of Chapters 5 to 16 inclusive. Chapters 17 and 18 examine Corporate taxation. Capital Gains and Inheritance Tax are covered in Chapters 19 and 20 respectively.

There is, therefore, a very heavy concentration upon Income Tax. Is this justified? The book is aimed at the undergraduate market where the traditional revenue law syllabus has been weighted in favour of income tax. Some concentration is therefore permissible. However, in this case, there is clearly an overconcentration with re- sultant imbalance. Capital Gains and Inheritance Tax receive scant coverage. This is surprising when one considers the issue of tax planning. This expression basically describes the various techniques by which lawyers and accountants can arrange a client's financial affairs so as to minimise the amount of tax s /he would otherwise have to pay. This is an important function. Capital Gains and Inheritance Tax are central considerations and, in this reviewer's opinion, merit much greater examination. This then is my major criticism.

A minor matter is the actual positioning of certain material contained in Chapter 14. This chapter is headed The Individual

Book Reviews 103

contained in Chapter 14. This chapter is headed The Individual and the Family and contains coverage of, inter-alia, progressive taxation, structure of personal taxation, total income and personal allowances and reliefs. I wonder whether these topics would have been better dealt with in the introductory section to give the reader a flavour of the system in action prior to encountering the specific Schedules. As I said, a minor matter.

Notwithstanding the imbalance, the choice of materials within the various headings is sound. There is comprehensive coverage of the important cases and many useful annotations and reference to further reading and academic analysis. There are extracts from Command Papers, Inland Revenue publications and a variety of other sources which combine to give the reader an insight into the policy considerations underpinning many of the legislative provi- sions.

Finally, and some would say that this is the crucial question, does one get value for money from this text? At £30 (paperback) it is on the expensive side and I have had a certain amount of negative feedback from students. In a nutshell, the consensus is that for such a large amount of money they expect not only cases and material, but cases, materials and commentary, giving them a complete course text. This reviewer thinks that this is a fair comment and it is on this basis, therefore, and with the aforementioned criticism and suggestions that I would recommend the second edition of this work.

John Hindmoor"

* Department of Law, Lancashire Polytechnic.