Understanding judicial discretion
: comparing judicial perceptions of their power when sentencing theft offenders in the English and Danish Lower Courts

  • Max Daniel Pericles Lowenstein

    Student thesis: Doctoral Thesis


    The evolution of judicial discretion in sentencing theft offenders at the custody cusp is examined by this research. The research demonstrates that there appears to be an ongoing power struggle between the executive, legislative and judiciary. The extent of judicial discretion is regulated by mix of sentencing guidance sources which have varied in dominance over time. To inform the thesis a comparative study was carried out. The study specifically compares judicial discretion approaches in theft sentencing at the custody threshold in England and Denmark respectively in 2008 and 2009. The research critically analyses and compares how society influences the sentencing approach of English and Danish judges and how judges influence society. Historical critical discussion of both jurisdictions? recent development of judicial discretion is used to introduce the main research topics. Then a critical comparison of the conclusions of socio-legal research into sentencing refines what questions the qualitative interview guide should pose. Qualitative interviews of 12 District Court judges in 6 rural and urban areas within Denmark and 12 Magistrates in 6 rural and urban areas within England were conducted. The outcomes of this comparative study supported three conclusions. Firstly, that long term reform of theft offenders is the judicial priority. This is best achieved through mixed community punishments and enhanced rehabilitation focus during and after custody. Secondly, working relationship cohesion in England could benefit from adopting the Danish sentencing panel approach. This would entail mixed sentencing panels of one professional judge accompanied by two lay judges. Thirdly, the collective training of English judges in case law comparison skills and legislative interpretation is an important tool in encouraging judicial faith and confidence. This will lead to a more pro-active and cohesive Lower Court Judiciary and re-connect them with their more senior judicial peers in the Higher Courts.
    Date of AwardOct 2010
    Original languageEnglish
    Awarding Institution
    • Nottingham Trent University

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