Velasquez Valenzuela, Javier (2018) Doing justice: sentencing practices in Scottish sheriff courts. PhD thesis. https://theses.gla.ac.uk/39042/ Copyright and moral rights for this work are retained by the author A copy can be downloaded for personal non-commercial research or study, without prior permission or charge This work cannot be reproduced or quoted extensively from without first obtaining permission in writing from the author The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the author When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given Enlighten: Theses https://theses.gla.ac.uk/ [email protected] Doing Justice: Sentencing Practices in Scottish Sheriff Courts Javier Velásquez Valenzuela Licenciado en Ciencias Jurídicas, Abogado & MSt en Derecho Penal Submitted in fulfilment of the requirements for the Degree of Doctor of Philosophy School of Social and Political Sciences, College of Social Sciences University of Glasgow October 2018 2 Abstract This thesis is an examination of the sentencing practices of judges (known as Sheriffs) in criminal cases heard in the Scottish sheriff courts. Despite the importance of sentencing, there is little knowledge of how exactly Sheriffs deal with cases. In particular, little is known about why and in which cases they decide that a custodial sentence is appropriate in the context of summary court proceedings. This research aims to understand the rationales behind the Sheriffs’ sentencing practice and, through this exploration, tries to examine how Sheriffs currently understand their role as sentencers. To achieve this objective, I negotiated access with the Scottish Judiciary which allowed me to carry out my fieldwork during the winter of 2016/2017. I interviewed, observed and shadowed 16 Sheriffs in 14 different Sheriff Courts throughout the country. The observation entailed shadowing the Sheriffs during what is called the ‘remand court’(RC). This is a day where they deal with all the criminal business - most of it on summary procedure - concerning sentencing diets. By the end of my fieldwork, I had observed Sheriffs dealing with more than 400 cases. One of the key findings was to confirm the perception that different Sheriffs have distinctive sentencing styles. However, I also found that there were structural legal and non-legal factors that partially explained those differences. Critically, my findings stressed how the Sheriffs' practices are shaped by the distinctive local realities in which they practice. This contextualization of sentencing practices allowed me to explore how different social, economic and geographical differences impacted the Sheriffs’ decision-making. Furthermore, through the observation of the Sheriffs in court and in their chambers, I was able to describe the routines behind sentencing practices. This allowed me to explore at which stages of these routines the Sheriffs’ decision-making begins to differ from one another. As a consequence, I was able to outline two models of sentencing practices. The first one is a depiction of the observable stages of the sentencing process. The second one is related to the fundamental questions the Sheriff faces during the individualisation of punishment which allow us to highlight at which moment the different sentencing styles emerge. 3 Author’s Declaration I declare that, except where explicit reference is made to the contribution of others, that this dissertation is the result of my own work and has not been submitted for any other degree at the University of Glasgow or any other institution. Printed name: Javier Velásquez Valenzuela Signature: ______________________ 4 Acknowledgements This thesis is the final act of a very long journey that begun twelve years ago when I took the decision that I wanted to carry out a PhD. It took me eight years to start, first finishing my undergrad, qualifying as a lawyer, successfully completing a masters and acquiring enough academic and professional experience. Nevertheless, what this PhD has taught me is that this would not have been possible without the guide, help and life lessons that a lot of people taught me. To acknowledge why I am here, and why I was able to write this work, means to thank those people who provided me with the support when I needed it the most. However, I also need to thank those who challenged me and pushed me to go beyond what I thought my limits were. Bourdieu once wrote that the immigrant is "atopos", "absent both from his place of origin and his place of arrival". I moved to Scotland leaving everything behind; I arrived having nothing but my suitcases. I want to thank those I left behind, whose help made it possible for me to start the PhD: My mother, who never let me give up, and always pushed me to go for my goals despite my disabilities. My family who have always supported me, without whom I would have lacked the emotional support that I needed to go through the hardest moments. Legal scholars like Patricio Gonzalez and Fernando Londoño, who gave me the chance to be their teaching assistant and taught me so much about the "art" of being a lecturer. All the people I worked with at the Fiscala Metropolitana Centro Norte, that taught me so much about professional, intellectual and human matters. The prosecutors, the legal clerks, the technicians, who were not only colleagues but friends. There is so much of my understanding of the legal field and legal practices that came from of my experiences with them. Indeed, I would not be the person I am without their friendship. Godoy, Arancibia, Mayer, Meneses, Adasme, Vargas, Ledezma, Montes, the list continues. Also, I am very much indebted to my colleagues and staff of the former Unidad de Delitos Sexuales y Violentos and the Asesoria Juridica Unit. Anita, Sandra, Mauri, Karin, Pili, Donoso, Lautaro and again, I cannot list you all. Because "no man is an Island", I have always been part of a community, even if I was not aware of it. The loneliness that is part of being an immigrant, the distance, the absence, shed new light on how much indebted I am to them. Moreover, spending four years studying the Scottish penal field inevitably made me constantly re-think my experiences in the Chilean field. The more I analyse and understand Scottish practices, the more that I look back and look at my Chilean experiences in a new light. 5 Before I left Chile, I was talking with Londoño who said to me that I should not worry, that I would not be alone, that I would find people that care about me and support me in Scotland as I had in Chile. And I did. I cannot thank my supervisors enough for all that have done for me. While this, again may sound like a commonplace, I mean it. Fergus, Marguerite and Fiona, I would have never done this research, if they were not there to support, guide and continuously challenge me to do better, to dare to do more. During the hardest moments of my PhD, when I started to lose faith that I was going to be able to carry my out my fieldwork during the long process of negotiation, they supported me and kept me going. It is not an understatement that I have learned so much from them intellectually and on a human level. Also, how can I not acknowledge the people I met at the SCCJR and the University of Glasgow? How can I not thank Tim McBride, Sarah Anderson, David Usman, Caitlin Gormley, Annie Crowley, Anna Schliehe, Neil Cornish, Kirsty Deacon, Tim Winzler, Grant McPhail, Cyrus Tata or Bridget Fowler? Again, this list is too short and omits many, but I would not have survived these hectic years without them. It will be hard to say goodbye. I also need to thanks to Niklas Cedenheim and Gabriela del Rio for their invaluable help and friendship. Last but not least, I could not have survived the last two years of my PhD if it were not for the emotional support and help of my partner, Rhys Allardice. Again, words are not enough to say how much he contributed to this achievement, mainly because having to deal with a PhD student in their writing year is not always a pleasant experience. I am indebted to his family as well, Katy, Craig and Dean, who embraced with open arms and became the family I lacked. Again, as Donne said "No man is an Island", and to have completed this PhD is as an achievement that belongs as much to those have helped along the way as it does to me. This work was funded by the Chilean National Commission for Scientific and Technological Research, CONICYT PFCHA / Beca de Doctorado en el Extranjero, Folio 72150042. 6 Table of Contents Abstract ...................................................................................... 2 Author’s Declaration ....................................................................... 3 Acknowledgements ......................................................................... 4 Table of Contents .......................................................................... 6 List of Tables, Graphs and Diagrams .................................................... 9 Abbreviations/Glossary of terms ........................................................ 10 CHAPTER 1: Introduction ................................................................. 11 CHAPTER 2: Literature Review .......................................................... 16 2.1. Sentencing research: On Criminologists and Lawyers ...................... 16 2.2. ‘Et tu, Brute?’ - The pervasiveness of lawyers ............................