Principles and values in criminal law and criminal justice : essays in honour of Andrew Ashworth

366 Pages·2012·1.47 MB·English

by  Julian V Roberts

PRINCIPLES AND VALUES IN CRIMINAL LAW
AND CRIMINAL JUSTICE: ESSAYS IN HONOUR
OF ANDREW ASHWORTH
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Principles and Values
in Criminal Law and
Criminal Justice:
Essays in honour of
Andrew Ashworth
Editedby
LUCIA ZEDNER
and
JULIAN V ROBERTS
1
3
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Andrew Ashworth: A Tribute
Roger Hood
I am honoured to have been asked to introduce this Festschrift to mark Andrew
Ashworth’s retirement from the Vinerian Professorship of English Law at Oxford
University and his Fellowship of All Souls College Oxford, posts that he has
heldwithgreatdistinctionsince1997.Wehavebeenfriends andcolleaguessince
1978 when he came to Oxford at the age of 31 (having been since the age of
23aLecturer,thenSeniorLecturerinLawatManchesterUniversity)totakeupa
fellowship and tutorship in Law at Worcester College, where his great supporter
SirRupertCross,thenVinerianProfessor,hadbegunhisoutstandingcareerasan
undergraduate. It was Rupert who had alerted me to Andrew’s talents, declaring
that‘Ashworthhas becomeby farthe best youngcriminal lawyer inthecountry’.
Thatwascertainlytrueatthetime,butbeyondthatitprovedtobeatrulypositive
predictionofwherehisabilitieswouldcarryhim.
Itisnotformetotrytorevieworassesshiscontributions:thatwillbedoneby
theeditorsinthelightoftheessayscontributedbyAndrew’sadmirers.Butasimple
tally of them will show why he is now recognized as one of the most influential
lawyers in Britain. Andrew Ashworth is renowned for his textbooks on criminal
law,criminalprocedure,sentencing,andhumanrights.Hehadbegunbycollabor-
atingwithRupertCrossonthethirdeditionofTheEnglishSentencingSystem1but
within two years had taken a fresh approach in his own Sentencing and Penal
Policy,2latertobecomethemuchadmiredandinfluentialSentencingandCriminal
Justice.3 Likewise, his other textbookshave authoritatively defined theirrespective
fields, being meticulously researched, written with great clarity, and kept up-to-
date with unfailing regularity. His extraordinary tenure over almost a quarter of a
century until 1999 of the editorship of the monthly published Criminal Law
Review,eacheditioncontaininganinformative,criticallyacuteeditorial,islegend-
ary.Inadditionhehaspublishedmanyfirst-ratearticlesonkeyaspectsofcriminal
law,criminalprocedure,penaltheory,sentencing,humanrights,andotheraspects
of the operation of the system of criminal justice. He is greatly admired as a
trenchantcriticofanythingthatsmacksofinjusticeortheunprincipledordispro-
portionateuseofcriminalsanctions.Andrew’spromotionofreforminthefieldof
sentencing and the application generally of criminal sanctions and the distinctive
part he has played in forging links between criminal law, human rights, and
criminological enquiry are outstanding features of his scholarship. Through his
1 RCrossandAAshworth,TheEnglishSentencingSystem(London:Butterworths,1981).
2 AAshworth,SentencingandPenalPolicy(London:WeidenfeldandNicolson,1983).
3 AAshworth,SentencingandCriminalJustice(4thedn,Cambridge:CambridgeUniversityPress,2005).
vi AndrewAshworth:ATribute
teaching and very effective supervision of many graduate students—he has never
been known to turn down a request to help a younger scholar—he has made a
marvellouscontributiontothecareersofhisdoctoralcandidates.Furthermore,heis
veryapproachableandgenerouswithhistimeinadvising,assisting,befriending,and
supportingcolleagues.HisunwaveringandactivesupportoftheOxfordCentrefor
Criminology, including taking responsibility as Acting Director, first in 1982–83
andagainin2003and2004–05,hasbeenvitaltotheCentre’ssuccess.
Not only has Andrew been a worthy successor to the great lawyers (such as
Dicey, Holdsworth, Cheshire, Cross, and Treitel) that have held the Vinerian
Professorship since William Blackstone at the end of the 18th century, he has in
manywaysdevelopedthestudyofcriminallawandbroadeneditsperspectivewell
beyondthesubjectheinherited.
HewasappointedtotheEdmund-DaviesChairofCriminalLawandCriminal
JusticeatKing’sCollegeLondonatage41andfiveyearslater,in1993,electedtoa
FellowshipoftheBritishAcademyandawardedanOxfordDCL.Appointmentsto
anhonoraryQueen’sCouncil,HonoraryBencheroftheInnerTemple,andtothe
Vinerian Chair followedas he celebrated his 50thbirthday. His work earned him
HonoraryLLDsfromDeMontfortandUppsalaUniversities.Therewillbemore
to come. He has visited and lectured, as far as I am aware, at universities in
Australia, Canada, Cyprus, Denmark, Finland, France, Germany, Ireland, Italy,
New Zealand, Norway, South Africa, Spain, Sweden, and the United States—
where his scholarship and fresh approach to well-worn themes have been greatly
appreciated. His sterling work for the Council of Europe, for which characteristi-
callyhemadesure thathisabilitytocommunicateinFrench wasuptospeed, on
‘Disparity in Sentencing: Causes and Solutions’4 in 1989, followed by being
Chairman of the Council’s Committee on Consistency which produced Recom-
mendation R (92) 17, added to his international reputation. His international
standing was further marked when the newly formed Association of Common-
wealthCriminalLawyerselectedhimasitsfirstPresidentin2011.
AndrewhasbeennamedbyTheTimesas‘Britain’smostinfluentialcriminolo-
gist’ particularly in the fields of criminal justice and human rights, and his
contribution to British public life was marked in 2010 by the award of the
CBE.HehasmademajorcontributionsasamemberoftheCriminalLawRevision
Committeebetween1980anditslastreferencein1985;totheCouncilofJustice
since1997;totheCriminalCommitteeoftheJudicialStudiesBoardbetween2002
and 2008; and especially since 1998 to the Sentencing Advisory Panel, which he
chaired between 2007 (along with membership of the Sentencing Guidelines
Council),and2010whenthesebodieswerereplacedbytheSentencingCouncil.
Hisinfluenceonsentencingpolicyhasbeenprofound.Between1988and1996,
allaspiringbarristersinthecountrywouldhaveattendedhiscourseonSentencing
attheInns ofCourtSchoolofLawinLondon,andnodoubtcame awayimbued
with the principles of proportionality and penal restraint that Andrew has
4 CouncilofEurope,1989.
AndrewAshworth:ATribute vii
championed so effectively. Indeed, it was Andrew Ashworth, in a widely noted
speechtoNACROin1982on‘ReducingthePrisonPopulationinthe1980s:the
NeedforSentencingReform’,whowasthefirstinrecenttimestoarguevigorously
for the establishment of a Sentencing Council to bring greater proportionality,
equity, andaprincipledapproachtosentencing policy.Also,as farasmagistrates’
courts were concerned, Andrew was in the vanguard when in 1985 he promoted
theformulationof‘structureddecision-making’andworkedeffectivelywithRose-
mary Thompson of the Magistrates’ Association to get this idea accepted by the
Judicial Studies Board. This led subsequently to the adoption by the Magistrates’
Associationofnationalguidelinesformanycommonoffences.Asfarasthehigher
judiciary were concerned, his proposal for a Sentencing Council was at first
dismissed as a ‘foreign’ idea, aimed at unduly limiting the discretion of judges,
but his determined persistence in championing his proposal led first to the estab-
lishmentoftheSentencingAdvisoryPanelandthentotheindependentSentencing
Guidelines Council in 1998 and 2003 respectively by the New Labour Govern-
ment,andfinallytothepresentSentencingCouncilin2010.
How has all this and much more besides been achieved? Those who know
Andrew well will have observed a quiet, rather reserved side to his nature. He is
anything but showy, self-important, or superior. His modesty is matched by self-
confidence,awrysenseofhumour,andanabilitytoorganizeandcarrythroughhis
heavyworkscheduleatapaceandwithinastrictschedulethatamazesanyonewho
hascollaboratedwithhim.Therearenosignsofthepanicthatmayinvademostof
usasdeadlinesapproach:quitetheopposite.Themidnightoilisnotforhim.Each
day he will arrive at his office at around 8.30am and leave with the day’s tasks
completed at around 5pm. As far as I am aware he does not usually undertake
academic work at weekends. Rather, he enjoys exercising his many other talents.
Formerlyakeengolferandlong-distancerunner(hestilljogsdaily),Andrewplays
bridgeeveryTuesdayeveningtoahighstandard,helovestravelandhisbolt-holein
southern France, is very knowledgeable about classical music, greatly enjoys fine
wine and food, and has found time over the past ten years to take responsibility,
alongsidetheHeadChef,forthechoiceofmenusatAllSouls.
Itisonlyaremarkablepersonwhocouldhaveachievedsomuch,andsoserenely.
Order, discipline, determination, clarity of mind, an exceptional ‘legal mind’,
andanunerringabilitytopresentideaswithoutunnecessaryjargonorpretension,
haveallmadethispossible.Heisthelivingembodimentoftheadage‘Ifyouwant
somethingdoneaskabusyperson.’WesaluteAndrewonhisretirementfromhis
academicpostknowingthatwecanexpectmanymoredistinguishedcontributions
fromhimintheyearstocome.
’
Editors Introduction
Lucia Zedner and Julian V Roberts
This Festschrift is first and foremost a celebration of its honorand—Professor
Andrew Ashworth CBE, QC, DCL, FBA, the Vinerian Professor of English Law
in the Law Faculty, Fellow of All Souls College, and member of the Centre for
CriminologyattheUniversityofOxford.Hismanypublicationsanddistinguished
publiclectureshavehadahugelyimportantimpactonthedevelopmentofcriminal
lawandcriminaljusticeinBritainandindeedthroughoutthecommonlawworld.
Ashworth’s scholarship is extraordinary in its range, extent, and, not least, its
sophistication. Among the most important of Ashworth’s contributions is the
development and articulation of a body of principles and values in respect of
the criminal law, the criminal process, and sentencing. This development of
a principled approach has been an abiding theme throughout his work. His
enduring achievement has been to inform the ways in which criminal lawyers
andcriminaljusticescholarsthinkabouttheirsubject,andtoraisethatthinkingto
new levels, not least by rendering normative considerations a vital companion to
analyticalenquiry.
Ashworthisunusualamongacademicsinhavingmadeimportantcontributions
tothedevelopmentofdoctrinallawandlegaltheory,atthesametimeashavinghad
amajorinfluenceoverthedevelopmentofcriminaljusticepolicy.Theessaysinthis
volume engage directly with Ashworth’s work to date and seek to further his
ambitions for criminal law and criminal justice scholarship. To this end, we
asked leading academics in cognate fields to engage directly with some of the
mostimportantprinciplesandvaluesarticulatedinAshworth’swritings;toreflect
upon their import, their applications, and their possible limitations in specific
domains.Collectively,theessaysinthisbookthusseektobuildupontheextraor-
dinary contribution to criminal law, criminal justice, and penal theory that
Ashworth has made so far and to take forward his principled approach to these
importantareasofscholarship.
Theessaysthatfollowarewrittenbydistinguishedandinternationallyrenowned
academics from Britain, Germany, America, Canada, Australia, South Africa, and
Singapore, all of whom have been associated with Andrew Ashworth and his
scholarship over the course of his career. Each contributor has responded to our
invitation to engage in a critical appreciation and advancement of the principles
articulatedbyAshworthinquitedistinctdomains—criminallaw,criminalprocess,
human rights, penal theory, and sentencing. As the essays that follow make clear,
the contributors took their remit very seriously. Not only do they engage closely
withmanyoftheprinciplesandvaluessetoutinAshworth’sownwork,theyseek
to elaborate upon and to develop these principles according to their respective
Editors’Introduction ix
interests and areas of expertise. We are delighted that the essays so amply accom-
plish our aim of producing a volume that both honours Andrew Ashworth and
makesasubstantialcontributiontoacademicdebatesaboutnormativequestionsin
criminal law and criminal justice. Together they take the ‘Ashworthian’ project
forwardand,insodoing,wehopetheywillstimulatenewdebatesandattractnew
audiencesforthem.
The Honorand
‘Not every honorand wants a trumpet blown’ observes Michael Taggart in his
analysis of the role of Festschriften in the legal academy.5 Of no one is this
observationmorelikelytobetruethanAndrewAshworth,whosenaturalmodesty
isremarkableinafieldoftencharacterizedbyself-promotion.Happilytheneedfor
trumpet blowing scarcely arises for, in Ashworth’s case, further fanfare is quite
unnecessary—the intense, positive academic and judicial attention that his schol-
arshiphasattractedservesasitsownamplesalute.
Ashworth’sscholarshipspansover40yearsandhispublicationshaveappearedat
a rate that is humbling, especially given his many other academic responsibilities,
hiseditorialroles,andpolicy-relatedduties.Forexample,aslongstandingeditorof
theCriminalLawReview,Ashworthplayedavitalroleinensuringthereputation,
high academic standards, currency, and value of the journal for practitioners. His
successorasEditor,IanDennis,observedofAshworth’stenure:‘fewarticlesemerge
entirely unscathed from the close, but sympathetic scrutiny to which they are
always subjected by the editor’ and he attributed to Ashworth the ‘greatest credit’
for attaining the ‘worldwide reputation and influence’ of the journal through his
‘greateditorialcareandskill’.6
If the enduring quality of that journal serves as testimony to Ashworth’s
influence,anothermustsurelybetheOxfordUniversityPressseriesOxfordMono-
graphsonCriminalLawandJustice.UnderAshworth’ssoleeditorshipthisserieshas
publishedsomeofthemostimportantandinsightfulcontributionstothefieldsof
criminal law, criminal procedure, and evidence of the past decades. It is not by
chancethatseveralcontributorstothatseriesappearalsointhisvolume,including
Duff,Horder,Lazarus,Mitchell,Redmayne,Shute,Simester,Tadros,vonHirsch,
and Wasik. These major editorial undertakings are symptomatic of Ashworth’s
goodcitizenshipasaleadingmemberoftheacademiccommunityandofhisquietly
effectivestewardshipoflegalscholarshipatthehighestlevel.Nolessimportanthas
been his solicitous encouragement of generations of students, his supervision of
dozensofresearchstudents,oftenwritinginfieldsremotefromhisimmediatearea
of interest or direct expertise, to whom he nonetheless offers inspiration, patient
instruction, and sound guidance. Ashworth has long played an important role in
5 M Taggart, ‘Gardens or Graveyards of Scholarship? Festschriften in the Literature of the
CommonLaw’(2002)22OJLS227,230.
6 ‘Editorial’[1999]CrimLR181.