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Representations of knowledge and discretionary decision-making by decision-support systems : The case of judicial sentencing

Tata, Cyrus and Wilson, J. and Hutton, Neil (1996) Representations of knowledge and discretionary decision-making by decision-support systems : The case of judicial sentencing. Journal of Information, Law and Technology, 1996 (2). ISSN 1361-4169

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This article critically examines approaches to the production of systems of support for discretionary legal decision-making. It discusses a project to research and develop a Sentencing Information System for the High Court in Scotland and examines the wider theoretical implications of work to produce a system to support discretionary decision-making. Briefly placing the Scottish development in the context of world-wide themes in sentencing reform, the article then focuses on attempts to produce systems of computer support for sentencing: both knowledge-based approaches and also database technology. It then briefly describes the background of the Scottish system and speculates on the present and future positions of the project. Perhaps the most important question concerning systems of support for discretionary decision-making is their ability to impact on decision behaviour. We argue that although every case is unique in some sense, it is necessarily possible to compare cases and therefore to represent them as 'similar'. How, then, should this 'similarity' be represented? Traditionally, representations of similarity have tended to be informed by 'the legal-analytical' paradigm. This privileges official criminal law offence categories as the starting point for representation and then 'adds in' further information to describe the case analytically. We argue that systems based on this paradigm may be limited in their representation of the decision process. We suggest that these limitations may be overcome by adopting an approach which tries to represent the informal schema of understanding which decision-makers employ and the holistic way in which they think about a case. The Scottish project has possibly provided a glimpse of a more holistic and schematic approach to representing 'similarity'. However, further study may help to provide a more complete representation of the informal behavioural rules which govern discretionary decision-making.