A criminal record matters. A convicted offender’s past criminal history affects the sentencing of the current offense, as among all aggravating factors, an offender’s criminal record is most likely brought up. But how judges incorporate an offender’s criminal history into their sentencing decisions remains surprisingly an understudied area empirically, especially from a comparative perspective. There are various theoretical arguments regarding how to treat criminal history when sentencing. Scholars have ranged from arguing that an offender’s criminal record should play no role in sentencing (flat-rate sentencing) to leniency should be given for a first-time offender only or those with a light criminal record (progressive loss of mitigation) to the more past criminal record, the more severe the sentence (recidivist premium).

The purpose of this paper is to: (1) investigate judges’ sentencing decisions with respect to the offender’s criminal history in the two key sentencing decision of whether to incarcerate or not, and if so, in determining imprisonment length; (2) determine which sentencing model for criminal record best explain judges’ treatment of the offender’s criminal record in sentencing; and (3) compare judges’ sentencing decisions with respect to criminal record in the two common law jurisdictions of England and Wales and Hong Kong. Two datasets derived from judges’ sentencing decisions are used for this study, one from England and Wales and one from Hong Kong respectively. This paper will demonstrate that at first glance, the progressive loss of mitigation model is better suited to explain sentencing decisions, particularly the decision to incarcerate or not. The picture is different when additional factors are considered, where a recidivist sentencing premium, in the case of England and Wales, or flat-rate sentencing, in the case of Hong Kong, is the better explanation, particularly for sentence length. This shows the complexity of sentencing decisions with respect to criminal history and how this may differ across different legal jurisdictions, even in similar English-style common law jurisdictions.

Prosecutors are regarded as the Ministers of Justice. The Prosecutor has a duty towards the accused, victim and the courts. The prosecutor should fulfil all necessary obligations for ensuring fair administration of justice. The Prosecutor’s statutory obligation includes obtaining arrest warrants, search warrants, producing evidence witnesses, filing withdrawal of charges, and filing appeals against insufficient sentences, etc. Prosecutors occupy a crucial position within the adversarial framework of the criminal justice system. The Prosecutor is the holder of the Public Office. He is not representative of any political party. He should exercise all his discretions independently.
However, the prosecutor's office is often tagged with political favoritism, corruption, and other misconduct. One important cause for this claim might be attributed to the prosecutors' performance in withdrawal cases. Section 321 of the Criminal Procedure Code, 1973 allows the prosecutor to unilaterally use their discretionary authority to drop charges. The prosecutor wields this authority at the government's discretion, impacting the genuine essence of the Prosecutor's office.
The study aims to analyze situations in which the Prosecutor relinquished his independent discretionary power in relation to withdrawal of charges and the judiciary's role in preserving the true nature of the prosecutor's office.

Under the Sentencing Act 2020 the courts in England and Wales have the power to defer sentencing for a period of up to six months to allow certain individuals to benefit from support services provided in the community. There is clear political interest in this approach, with a recent White Paper stating that courts should ‘use existing legislation on deferred sentences… to divert vulnerable offenders into services and away from further involvement in the criminal justice system’.[i] Yet despite being a potentially significant tool – providing an offender with a symbolic second chance and putting them in a position of trust - it is a rarely used and little understood sentencing option. With almost no data available on deferred sentencing, we have limited knowledge about the requirements imposed by judges and magistrates and the extent to which offenders engage and comply with this process. Drawing on a case law review conducted in collaboration with the Sentencing Academy, we present the most comprehensive picture of sentence deferral in England and Wales. We also present findings from our research in Scotland where sentence deferral is an established part of the sentencing landscape. The Scottish justice system makes use of deferrals in a variety of ways, providing flexible and effective interventions which can help prevent individuals who have offended becoming further drawn into the criminal justice net. Greater use of Deferment Orders in England and Wales could provide the judiciary with a key tool to avoid unnecessary sentence escalation and could help to curtail the use of short-term custodial sentences. We explore their potential with particular reference to women and young offenders.

[1] Ministry of Justice (2020) A Smarter Approach to Sentencing London: Ministry of Justice.

Significant attention has been paid to youth justice in Australia in recent years. The principal focus has been on raising the minimum age of criminal responsibility, which for a long time in Australia has been set at the age of 10. Recent moves have seen this change to 12 in the Northern Territory, and a number of other jurisdictions appear likely to follow. Less attention has been paid to the practice of sentencing children as adults. Across Australia, children who are found guilty of committing serious offences can be sentenced as adults in certain circumstances. This means that children are exposed to the adult criminal justice process, and are liable to be punished accordingly, inviting criticisms of inappropriateness and inefficacy. The problem is particularly acute in relation to First Nations children, who are incarcerated at a disproportionately high rate. This paper addresses a gap in the research by surveying the practice of sentencing children as adults in Australia, and analysing the basis on which this is currently done.

Plea bargaining and other trial-avoiding conviction mechanisms have been introduced in many legal systems. There are different arguments to justify the introduction of this kind of mechanism, including benefits for all parties as well as procedural efficiency. There seems to be agreement that there is a “sentence differential” between the sentence obtained at trial and the sentence obtained by a guilty plea. While justifying plea bargaining on the grounds of efficiency already raises conflicts in relation to culpability and the seriousness of the crime, much more problematic is the fact that the alleged sentence discounts for the defendant are often non-existent.
In this research, more than 400 judicial processes in Girona courts have been observed to understand how plea bargaining operates and the role of the parties in the "negotiation" process. Analysis of these observations has shown that in many cases defendants are pressured to plea by being offered sentences that are virtually equal to what they would get at trial. The prosecutors’ strategy is to always recommend the maximum punishment provided by the Criminal Code for the crime committed. So, sentences have been standardised and do not consider the circumstances of the case such as the culpability of the offender and the harm caused by the offence. On the other hand, in many of these processes there is also no benefit in terms of efficiency, since at this procedural stage all the participants in the trial have already been summoned and all the necessary steps have been taken to hold the trial. This, together with other circumstances, raises the question of whether plea bargain is really a good deal or whether it is in fact a mechanism that is being misused to achieve punishment without trial.