27/09/2026
WHO DECIDES THE SENTENCE: THE JUDGE, THE LAWYER, OR THE CONSTITUTION?
Have you ever wondered:
Can a lawyer decide that an accused person should spend 5, 10 or 20 years in prison? Or does the Constitution determine the number of years?
Let’s make it simple.
1️⃣ LAWYERS DO NOT DECIDE THE SENTENCE
Neither the prosecuting lawyer nor the defence lawyer has the power to impose a sentence.
The prosecution may argue for an appropriate sentence and draw the court's attention to aggravating circumstances.
The defence lawyer may ask the court for leniency and present mitigating circumstances such as the accused person's background, remorse, age, previous record or other relevant factors.
But lawyers argue. They do not sentence.
2️⃣ THE LAW SETS THE LEGAL FRAMEWORK
The Constitution is extremely important in criminal justice, including the protection of fair hearing and the principle that a person should not be convicted for an act that was not an offence under written law at the time it was committed.
However, the Constitution does not prescribe the specific prison term for every criminal offence.
The applicable written criminal law or statute normally creates the offence and specifies the punishment.
For some offences, the law may prescribe a fixed punishment. For others, it may provide a maximum, a minimum and maximum, or other sentencing requirements.
3️⃣ THE JUDGE OR MAGISTRATE PASSES THE SENTENCE
Once an accused person has been found guilty, the court determines the appropriate sentence in accordance with the applicable law.
The court may consider relevant factors such as:
🔹 The nature and circumstances of the offence
🔹 The circumstances of the offender
🔹 Whether the offender is a first-time or repeat offender
🔹 Mitigating and aggravating factors
🔹 Whether the law permits a lesser or alternative sentence
The court's discretion is not unlimited. A judge cannot simply choose any number of years they like. The sentence must be authorised by law and comply with applicable sentencing principles.
THE KEY POINT
A lawyer can ask the court to impose a particular sentence.
A lawyer can argue why a sentence should be higher or lower, where the law permits.
But a lawyer cannot personally sentence an accused person.
The law provides the legal framework.
The lawyers make their arguments.
The court imposes the sentence.
That is the difference between ADVOCACY and JUDICIAL POWER.
©Ogam Solicitors – Law Made Easy