Legality and the Sentence

Abstract It is a fundamental principle of criminal law that offenders are to be punished for their crimes and not for other reasons such as lifestyle or character. The legality principle enjoys widespread recognition at the point of attribution of criminal liability. In addition, it is complemented in the procedural context by the requirement that the burden lies on the state to prove that a crime was committed. Much is made of the importance of the definition of the crime, of the obligation on the state to prove the various aspects of the charge, and yet at the sentencing stage it is common for factors to be taken into consideration which seem to have little to do with an offender’s culpability for the crime at issue. This chapter sets out to examine the importance of legality at sentencing and begins with an examination of the relationship between legality and the act and culpability requirements. It then goes on to analyse the case law of the European Court of Human Rights on Article 7(1) ECHR in order to establish the scope of the human rights principle at sentencing. This provides the basis for consideration of the compatibility of important sentencing practices, notably sentence enhancements for prior convictions, the treatment of confessions, and the extent of the sentence reductions in cases of diminished culpability or responsibility. This provides the basis for broader consideration of the role of legality as a limit on punishment.