Before looking into the operation of judicial discretion in practice, it is necessary to find its definition and an outlook of Judicial structure on sentencing in England and Wales. The concept of discretion, that is central to the understanding of the judicial process, differs from deciding a question by applying a fixed rule of decision in the way that the decision-maker is able to decide between alternative courses of action.
In simple words, Judicial Discretion is the authority the law gives the judge to choose among several lawful alternatives.The greatest advantages of appellate review as a method of guiding judicial discretion are flexibility, and the fact that judges and counsel are obviously experienced in this. It must be pointed out that several other strategies for improving consistency in the exercise of sentencing discretion are currently incorporated into appellate review. The advantage of independent guideline judgments is that they represent a reform consistent with the nature of the existing appellate process.Judicial officers and counsel could adapt to the changes relatively easily, and the process could be grafted onto existing sentencing appeals processes. Why is judicial discretion considered not fair and inconsistent?? Judicial discretion varies from area to area and the key disadvantage of relying upon sentencing appeals to ensure sentence consistency is that the process is purely reactive.
‘Gibbon’ believed that judicial discretion is the 'first engine of tyranny'.The opposition to the concept of judicial discretion stems from the mistrust of the judges who make their decisions not on the basis of clear rules but biases, evil and dishonest motives. The Court of Criminal Appeal can articulate principles of sentencing (including information about appropriate sentence length) only in cases which are appealed to it. Sentencing jurisprudence is also far less developed than case law on many other legal subjects, providing less practical guidance than decisions in these areas.
As serious crimes and extreme sentences predominate in such appeals, the coverage of sentencing law can be incomplete, particularly for the many minor offences (and non-custodial sentencing options) dealt with in Local Courts. This poses significant structural difficulties in changing sentencing values. Gibbon believed that judicial discretion is the 'first engine of tyranny'. The opposition to the concept of judicial discretion stems from the mistrust of the judges who make their decisions not on the basis of clear rules but biases, evil and dishonest motives.