Written evidence submitted by Dr Max Lowenstein (OUS0001)

Written evidence submitted by Dr Max Lowenstein, Principal Academic in Law, on behalf of Bournemouth University to the Justice Committee’s inquiry on Public opinion and understanding of sentencing.

Author Biography

Dr Lowenstein is an established sentencing, equality law academic expert aware of legal practice as a barrister. His disability expertise assists as trustee and chairman of the ‘Action for Asperger’s Charity.[1]  His internationally recognised sentencing research is conducted directly with judges, who actually sentence to assist sentencing reform and to help UK society better understand our judicial experiences when sentencing in legal practice. This primary interview approach with the judiciary is rarely applied, particularly within academia, and furnishes Dr Lowenstein with a unique understanding of how judges make decisions and the factors which influence this. Dr Lowenstein has worked within sentencing law academia for 16 years and his published works have engaged with both the adult (18+) criminal courts and the youth (10-17) criminal courts, where sentencing communications on behalf of the public are judicially made in the UK and globally.  Dr Lowenstein’s academic profile is available here: http://staffprofiles.bournemouth.ac.uk/display/mlowenstein 

Executive Summary

• The online environment provides a valuable opportunity for the judiciary to communicate and improve public understanding of sentencing clarity in an accessible and inclusive way.
• Judges value sentencing communication reform, however, the effectiveness of the mainstream media, sentencing guidelines and particularly sentencing remarks (see point 1 below) in improving understanding of sentencing merit further academic evaluation, due to their growing UK publication.
• Researchers would benefit from engaging with and agreeing a shared brief with the Committee to ensure their research benefits the populace and enhances the UK public understanding in this area, that sits within a growing global expansion in sentencing publication attempts. 

How does the public access information on sentencing? 

What could be done to improve public understanding of sentencing?

How the public accesses information on sentencing

1. Sentencing approach and outcomes are most explained to the public through:

(1) the established mainstream media[2]; 

(2) judicially created case-specific written narratives[3] or videos[4] on their sentencing remarks; and,

(3) Sentencing Council offence-specific sentencing guidelines with guidance online.[5] 

The social media boom now provides easy public access to information on sentencing. An advantage is that such information is widely available and increasingly accessed by the public[6]. However, the disadvantage is that amongst judges who sentence there is ‘no judicial consensus on social media usage, despite attracting more global attention’,[7] as well as ‘threats to judicial privacy and safety via negative comments and cyberbullying’.[8] 

UK judicial thinking currently includes a positive equality promotion approach, which is being followed in their public engagement with social media, focussed upon judicial diversity, equality and inclusion; although no public response feedback has yet been published.[9] 

Although, it is no longer available from the Ministry of Justice, the ‘you be the judge’ interactive explanatory sentencing series designed for the public, was a recent positive attempt in explaining the complexities of sentencing by offence-specific guidelines to the public.[10]  In teaching sentencing law at university, I have utilised these videos as an educational tool and received positive student feedback, particularly where sentencing case examples have been provided to apply sentencing guidelines and discuss the complex implications of the facts of each case. 

Improving public understanding of sentencing

2. The Judiciary of England and Wales have a legal duty to give reasons for and to explain the effect of their sentence in their remarks to children (10-17) and adults (18+), utilising ‘ordinary language and in general terms’ under section 52 of the Sentencing Act (2020). It is my view that continuing and expanding official judicial website publication of sentence remarks via narrative or videos online would promote judicial transparency, public accessibility and inclusion and result in improved public understanding of sentencing.  Whilst, we currently have no evidence to determine the extent of the public’s engagement with and their reactions to these sentencing remarks, my sentencing research[11] does demonstrate that judges feel they enhance their judicial legitimacy, transparency and assist reform offenders, utilising their sentencing experience over time
3. All judges as public servants, under section 20 of the Equality Act (2010), are required to make ‘reasonable adjustments’ for service users, which extends to their sentencing communications.[12] Communicating sentencing remarks to children (10-17) and young adults (18-25) can be particularly challenging because their understanding of courtroom procedures and communications can be limited, [13] largely due to their greater immaturity.[14]  Judges should be mindful that their publication of sentencing remarks online, may not be accessible to some children and young adults, due to a disability, digital poverty, or limited/poor quality internet access; with the digital divide extending well into adulthood and older age (26+) for some.[15]
4. There is uncertainty here.  Global research in this field is in its’ infancy for both the child and adult criminal courts, which is confirmed by my own research.[16]  We do not yet know how effectively sentencing remarks provide a clear and consistent meaning and impact to the public on sentencing when published to try to improve public understanding.  Judges, in their remarks upon various case facts and the actual sentence itself, must explain sentencing seriousness, which is offender culpability (blame) and offence harm, which the public may or may not understand and will likely subjectively interpret themselves, including reflecting upon their own emotions and life experiences.
5. On the public impact of engaging with sentencing remarks, beyond the courtroom, again we know very little and need more data, but uses and gratification theory (UGT) in media psychology provides some interesting thoughts on media impact on members of the public in practice that they choose to access (as seen in this diagram below):[17]

UGT proposes that ‘people choose to consume certain types/forms of media because they expect to obtain specific gratifications, as a result of those selections.’[18] If this model is applied to explain the impact of sentencing remarks, we should further explore the extent that the public agree or disagree with sentencing remarks and whether that helps or hinders their positive or negative impact. I propose we qualitatively test their subjective understandings, including the positive and negative emotive responses of the public. This is pertinent because judges themselves rightly acknowledge in their sentencing remarks within caselaw that they can and do emotively respond.[19] We should recognise that judges are human beings and emotionally respond to case facts of varying offence seriousness.  In gathering this data, we can check the match between judges’ interpretations of their sentencing remarks against the public interpretation – this would greatly inform best practice in sentencing clarity.

6. My sentencing research has drawn upon rare judicial interviews to consider the meaning and impact of adult (18+) low-moderate seriousness theft sentencing remarks,[20] where a negatively framed public shaming (denunciatory) approach was being followed. Recent research explored UK sentencing remarks communicated to children (10-17), where the legal obligations to engage, judicial ideology and mostly positively framed moral re-education stood out as key features.[21] Both judicial research studies demonstrated how much judges value sentencing remarks as their voice to the public whom they serve.  Judges feel their sentencing remarks enhance judicial transparency and legitimacy with the public and favour publishing them to better educate the public on sentencing. [22] 
7. When constructing their sentencing remarks, UK judges must consider the seriousness of the crimes (high seriousness means high offender blameworthiness and offence harm).[23] Offence-specific sentencing guidelines provide the framework for sentencing for each crime with offence-specific non-exhaustive aggravating and mitigating factors.  Judicial decision-making on sentencing remarks balances aggravating (negative case facts increasing offence seriousness) and mitigating factors (positive case facts decreasing offence seriousness) which, are themselves based on previous judicial decisions within sentencing caselaw. They are framed by offence-specific sentencing guidelines issued by the Sentencing Council which ‘must be followed, unless not in the interests of justice to do so’.[24]  By applying case facts and commenting upon crime seriousness from them, the judges are utilising sentencing remarks to explain sentencing complexity and the positive and negative emotive flows within it to the public. This is not just about explaining the sentencing outcome well; it is better justifying the actual sentencing approach taken in the case, to enhance public understanding of how judges think as they go about sentencing.

Aggravating and mitigating factors – Judicial sentencing remarks for moderate-high seriousness crimes

8. My sentencing research adopted a rare and insightful research methodology in considering sentencing remarks and their positive and negative emotive elements within riot caselaw.  A qualitative analysis of the sentencing remarks from the judicial words and their likely emotions used, was applied to moderate-high seriousness offences, e.g.) riot or civil disobedience[25]. It highlighted that as offence seriousness increases the judicial focus in their sentencing remarks inevitably shifts more to the aggravating factors in the case - leading to a likely more punitive sentence with mostly negative emotive sentencing remarks. 
9. Furthermore, my judicial interviews have demonstrated that popular punitive sentences can similarly occur in the UK and Denmark, even for some low-moderate seriousness offences, like theft.[26]  What this means for public understanding, is acknowledging via sentencing remarks that judges are human beings with emotions, just like the public.  This further assists judicial transparency and legitimacy with the public whom they serve and with whom their sentencing should concord with to preserve public trust and respect.
10. When judges weigh up defendant risk to the public, particularly from sexual and violent offenders, predominantly aggravating factors can cause understandably negative judicial emotions (anger, disgust, resentment) to surface. These emotions are observable in sentencing caselaw remarks, particularly for the most serious crimes[27]. Moreover, the media may publicise sentencing remarks explaining sentencing decision outcomes, especially when the offender receives a more punitive sentence from a judge than public opinion may support.[28]  There is an influence from popular punitive sentencing at play here, which judges themselves openly acknowledge,[29] and which exists globally.[30]  There are advantages to judges closely agreeing with public views on sentencing, such as increasing public agreement and engagement with how sentencing is being applied, when judicial and public sentiments are similarly shared.  The disadvantages are decreasing likely public agreement and engagement with how sentencing is being applied, where legislative reform and public sentiments can sometimes not be similarly shared by the majority, which was historically seen during the abolition of the death penalty in the UK.[31] 

Communicating sentencing remarks reform

11. Awareness of and respect for diversity, equity and inclusion are an important legal duty for judges, who are responsible for ensuring that their courtroom adheres to judicial communication best practices.[32]  Whilst my research has recently explored judicial understandings of their sentencing explanations to children (10-17) in England and Wales, there is particularly limited empirical data exploring how judges create and explain their sentencing remarks to young adults (18-25). Greater understanding of judicial approaches to their sentencing remarks is needed to highlight best practice and better inform judicial training. It would support the vital research in this area if the Committee, or Government, recommended this topic to the UKRI research councils to open a call for this type of research. So far it has unfortunately been neglected, despite the increasing UK and global significance.
12. It is vitally important that the public feel they can understand and have access to courtroom processes culminating in sentencing communications. However, again, we do not know how well the public understands sentencing communications. Nor do we know the impact of their most case specific form, made via sentencing remarks, on public understanding, whether they are published online in narrative or video form.  Given the limited data from judicial, legal counsel and defendant perspectives on sentencing remarks, I strongly recommend that the Committee commission or encourage the gathering of empirical data to better understand the sentencing from the three main sources (see point 1).

July 2022