An Improbable Revolutionary

thomas

David Thomas QC, LLD was the country’s authority on the law and practice of sentencing. Sir David Maddison reflects upon his life and how he revolutionised the courts’ approach to sentencing.

David Thomas’s death on 30th September, 2013 marked the passing of the pre-eminent authority on the law and practice of sentencing in the criminal courts of England and Wales. His name was and remains known to almost every practitioner, magistrate, Recorder and judge dealing with criminal cases. He will be greatly missed by his many friends and admirers in legal and academic circles.


David was born in Liverpool in 1938. He received his secondary school education at the Liverpool Institute. This prestigious grammar school has many distinguished alumni. In the musical field it is worth mentioning that Paul McCartney and George Harrison were there at the same time as David. In 1957 David went up to Queen’s College, Cambridge to read English, but he later switched to law. He graduated with a B.A. in 1960 and took an LLB in 1961. He then became a lecturer in law at the London School of Economics until 1971 when he returned to Cambridge. He was the first lawyer to be appointed to Cambridge’s Institute of Criminology, initially as an assistant director of research. He became a Fellow of Trinity Hall and was awarded a university lectureship in 1976. In 1983 he received the further degree of LLD in recognition of his published work up to that date. He became Reader in Criminal Justice in about 1990 and retired from the Institute in 2003, but he continued to write and lecture until shortly before his death.

By the time of his return to Cambridge David had already developed an interest and expertise in relation to criminal sentencing, and had observed shortcomings. There was little guidance for sentencers, either as to the process to be followed when determining a sentence or as to the levels of sentence appropriate to offences of different kinds. As a result, the reasons why particular sentences were passed were rarely explained to any helpful degree, and inconsistent sentences were not infrequently passed in different courts for broadly similar offences.

David rightly thought that situation needed to be addressed. To do so he engaged in research in a field that had previously received very little attention from academic lawyers. He focused on an analysis of sentencing decisions of the Court of Appeal. His first article on the subject in the Criminal Law Review was “Sentencing - The Case for Reasoned Decisions” in 1963. This was followed up by “Sentencing - The General Principles”, a two-part article in the same journal in 1967, and his book “Principles of Sentencing” published in 1970. In time this developed into the hugely successful loose-leaf encyclopaedia “Current Sentencing Practice”. The work not only explained the general principles of sentencing to be derived from decisions of the Court of Appeal, but also provided summaries of and extracts from hundreds of such decisions, by reference to and comparison with which it was possible for sentencers to achieve a much greater measure of consistency than hitherto. This publication was complemented by the “Sentencing Referencer”, a concise and helpful summary, Published annually, of the forms of sentences and ancillary orders currently available to the courts. In addition to all of this, he inaugurated and edited the Criminal Appeal Reports (Sentencing), edited the sentencing section in Archbold and was a prolific contributor to the Criminal Law Review on sentencing matters. By now his wish to see greater guidance, structure and consistency in sentencing had been met not only by his own significant contributions but also by a number of ‘guideline’ decisions of the Court of Appeal, and was to be taken further by the establishment of the Sentencing Guidelines Council and then of
the Sentencing Council. Lord Judge, the recently retired Lord Chief Justice, once said of David: “[He] is the most improbable revolutionary you could ever meet. Yet he has revolutionised the approach of the courts in this country to sentencing.”

Such was his reputation that David was often consulted by government departments about proposed sentencing legislation. Some though not all of his proposals were accepted. One that was taken up related to the re-naming in the Powers of Criminal Courts (Sentencing) Act 2000 of the “Combination Order”. David advised that if it was necessary to do this at all, the new name should not be the “Community Rehabilitation and Punishment Order” as was then being suggested, but the “Community Punishment and Rehabilitation Order”. He had a good eye for practical difficulties, and he alone foresaw the unfortunate acronym by which the former would quickly have become known.

David was able to maintain a mastery of the seemingly endless stream of sentencing legislation from the latter part of the 1990s onwards, by which new forms of sentence and ancillary orders were introduced and amendments were made to those previously available. This, coupled with the increasingly common practices of drip-feeding legislation into the system by commencement orders taking effect on different dates, and of expressing amendments by way of deletions from and/or additions to the original provision rather than simply setting out the new wording of the provision concerned, made an area of the law which should be clear and accessible, complex and obscure. David was never known to fall into error, though judges and Recorders sometimes did, and they were not the only ones. A notable example, quickly identified by David as always, and referred to in his lectures, was section 287 of the Criminal Justice Act, 2003, which inserted a new section 51A into the Firearms Act, 1968. The new section required courts to pass a sentence of imprisonment of at least five years on any offender aged 18 or over convicted of specified firearms offences, unless exceptional circumstances justified their not doing so. This was an interesting provision because it was not lawful to pass a sentence of imprisonment on any offender aged 18, 19 or 20. The new section 51A thus required (or purported to require) courts to pass unlawful sentences. Parliament had unfortunately overlooked that section 61 of the Criminal Justice and Court Services Act, 2000, which did provide for sentences of imprisonment for offenders aged 18 and over, had not yet been brought into effect (as it still has not, 14 years later). This highly unsatisfactory state of affairs remained in place until the Firearms (Sentencing)(Transitory Provisions) Order 2007 corrected the position in the following clear and helpful terms:

“In relation to any time before the coming into force of section 61 of the Criminal Justice and Court Services Act, 2000 (abolition of sentences of detention in a young offender institution, custody for life, etc.), section 51A(4)(a) of the Firearms Act 1968 has effect as if-

(a) in sub-paragraph (a)(i) the reference to an offender aged 18 or over when convicted were a reference to an offender aged 21 or over when convicted;

and

(b) after that sub-paragraph there were inserted-

“(ia) in the case of an offender who is aged at least 18 but under 21 at that time, a sentence of detention under section 96 of the Powers of Criminal Courts (Sentencing) Act; and”

For most people, research and teaching at Cambridge, advising government departments and writing and editing books, journals and law reports would provide a sufficient challenge. Not so for David. He also lectured at the criminal seminars of the Judicial Studies Board (now the Judicial College) from its inception, and at shorter seminars run by the Circuits and by Magistrates’ Courts. His lectures and handouts were highly informative and amusing at the same time. He revelled in identifying and commenting on what he saw as absurd, erroneous and needlessly obscure statutory provisions, such as those referred to above. Despite his despair at the volume and sometimes the quality of sentencing legislation he would be heard to say, with a twinkle in his eye, that at least it meant that he would never be out of work. In time, doubtless influenced by his regular contact with judges and practitioners at JSB seminars, David decided that he would like to gain experience of the ‘real world’ of the criminal justice system. He was called to the Bar by Lincoln’s Inn in 1992, and subsequently became an Honorary Bencher. He was a popular tenant first at Cloisters, and later at 2 Bedford Row. His academic writing and lecturing work continued to account for most of his time, but given his expertise it was no surprise that he was instructed as Counsel to advise on complex sentencing problems, and to appear on behalf of the Attorney-General in ‘unduly lenient’ references to the Court of Appeal (Criminal Division). He also generously gave informal advice to other practitioners and even to serving prisoners who would write to him. He was appointed as an Honorary Queen’s Counsel in 1996. David was able to combine his great erudition with an unpretentious nature, considerable personal charm, and a well- eveloped sense of humour. Outside the law his principal interests were his family, photography and sailing. After his retirement from the Institute of Criminology he and his wife Margaret spent time both in Cambridge and in the south of France where they had a house. They had first met at a church youth club in the West Derby suburb of Liverpool when they were both teenagers, and married in 1961. She survives him, as do their daughters Karen and Lindsey and his brother Peter. To all we offer sincere condolences on their loss.

Sir David Maddison

 

 

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Sir David Maddison

Sir David was a High Court Judge from 2008 until 2013, when he retired. Prior to that he was the
Recorder of Manchester. He used to lecture regularly for the Judicial Studies Board and Judicial College, and came to know David Thomas in that connection.