Borderline sentencing: a comparison of sentencers’ decision making in England and Wales, and Scotland

This article draws together findings from two related studies of sentencing in England and Wales, and Scotland. It examines how sentencers in the two jurisdictions differ in their sentencing decision making, with a focus on cases on the borderline between prison and a community penalty. The article suggests that, despite differences in legal systems and criminal justice structures, sentencers’ decision making in the two jurisdictions was remarkably similar. In both jurisdictions they took account of a wide range of factors in reaching their decisions, among which the legal category of the offence under sentence was often subsidiary to other considerations. The main difference between the two jurisdictions was the much more dramatic rate of increase in the adult prison population in England and Wales than in Scotland. Several possible explanations are offered for this, including the literal and metaphorical distance of Scotland from Westminster and the greater impact of sentencing guidance south of the border—which has probably had a largely unintended inflationary effect on the prison population