PRINCIPLES AND VALUES IN CRIMINAL LAW AND CRIMINAL JUSTICE: ESSAYS IN HONOUR OF ANDREW ASHWORTH This page intentionally left blank Principles and Values in Criminal Law and Criminal Justice: Essays in honour of Andrew Ashworth Editedby LUCIA ZEDNER and JULIAN V ROBERTS 1 3 GreatClarendonStreet,OxfordOX26DP, UnitedKingdom OxfordUniversityPressisadepartmentoftheUniversityofOxford. ItfurtherstheUniversity’sobjectiveofexcellenceinresearch,scholarship, andeducationbypublishingworldwide.Oxfordisaregisteredtrademarkof OxfordUniversityPressintheUKandincertainothercountries #TheSeveralContributors,2012 Themoralrightsoftheauthorshavebeenasserted FirstEditionpublishedin2012 Impression:1 Allrightsreserved.Nopartofthispublicationmaybereproduced,storedin aretrievalsystem,ortransmitted,inanyformorbyanymeans,withoutthe priorpermissioninwritingofOxfordUniversityPress,orasexpresslypermitted bylaw,bylicenceorundertermsagreedwiththeappropriatereprographics rightsorganization.Enquiriesconcerningreproductionoutsidethescopeofthe aboveshouldbesenttotheRightsDepartment,OxfordUniversityPress,atthe addressabove Youmustnotcirculatethisworkinanyotherform andyoumustimposethissameconditiononanyacquirer CrowncopyrightmaterialisreproducedunderClassLicence NumberC01P0000148withthepermissionofOPSI andtheQueen’sPrinterforScotland BritishLibraryCataloguinginPublicationData Dataavailable LibraryofCongressCataloginginPublicationData Dataavailable ISBN 978–0–19–969679–6 PrintedinGreatBritainby CPIGroup(UK)Ltd,Croydon,CR04YY 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.