“Instilling trust in
punishment through judicial
denunciation of youth
offenders?: Filling current
knowledge gaps.”
Dr Max Lowenstein
1
Meaning of Judicial
Denunciation?
• Durkheim, E. (1984): 63 punishment means
‘maintaining inviolate the cohesion of society
by sustaining the common consciousness in
all it’s vigour.’
• When judges communicate with society
about wrong doing to preserve law and order,
‘it is essential that punishment inflicted for
grave crimes should adequately reflect the
revulsion felt by the great majority of citizens
for them,’ Denning, A.T. (1949)
2
Meaning of Judicial
Denunciation?
• Walker, N. (1983): vii Denunciation
recognises the value of both individual
culpability and preserving community bonds,
thus ‘denouncers are really either quasiretributivists or crypto-consequentialists’
• Lawrence, F. (1999): 6 ‘Expressive theory
may be concerned less with providing a full
justification of punishment than with
understanding the full impact of punishment’
3
Meaning of Judicial
Denunciation?
• Promotion of societal cohesion by
accurately reflecting the perceptions of the
‘law abiding majority of citizens’ Rychlak,
R. (1990)
• The ‘collective morality’ of society Maruna,
S. (2011): 7
• Re-education that can engage/change the
offender and address media distortion
appears to be important Lowenstein, M
4
(2013): 32-33
Meaning of Judicial
Denunciation?
• Positive side – The positive promotion of
self awareness and reintegration through a
‘mutual effort at reconciliation, where
offender and society work together to
make amends’ Johnson, (2002): 328
• Negative side – The negative rejection of
individual offender immorality and wider
social ignorance as a judicial attempt at
‘status degradation’ Garfinkel, (1956): 420
5
Judicial Principles and Approach
towards Youth Offenders
• 19th C Protection/Early Intervention Industrial School
Acts (1857-80) & Youthful Offenders Act (1854) ‘children
in trouble’ & ‘showing kindness to nip crime in the bud’
Harris & Webb (1987): 15
• Child welfare S. 44 Children & Young Persons Act(1933)
• Offending can be relevant evidence of harm due to
unreasonable parental controlS.31(2) Children Act(1989)
• Prevent (re) offending S. 37 Crime & Disorder Act (1998)
• S. 142A (3) Criminal Justice Act (2003) 4 youth
sentencing principles mirror their adult counterparts
except for deterrence which is omitted S. 142(1)(b) ‘the
reduction of crime (including its reduction by deterrence)’
6
• Principle aim is to prevent (re) offending S. 142A (2)(a)
Judicial Principles and Approach
towards Youth Offenders
• Offence harm and offender culpability
(Sentencing Guidelines Council,
Seriousness Guideline, 2004).
• Prevention of offending and detailed
regard to offender welfare (Sentencing
Guidelines Council, Sentencing Youths
Guideline, 2009): para. 2.9 with the judicial
duty to comply with definitive guidelines
supported by S. 125 Coroners & Justice
7
Act (2009)
Youth Sentencing Statistical
Trend Limits
• Recorded crime peak 2006, but since decreasing
levels 2007-10. (National Audit Office, 2010) : 12
• Between 1992-97 = 40% custody increase then
decline 2001-03 with the10-14 age group increasing
(Audit Commission 2004): 34-6
• Youth offender age, gender, ethnicity (MOJ, Youth
offences resulting in a disposal by region, 2010/11).
• Violence against the person (malicious wounding)
most currently, BUT Theft & Handling , Criminal
Damage/Public Order offenders numbers interchange
for highest volume - 2002-11(MOJ Statistics, Offence
classification numbers used for court proceedings,
8
2011 (YJB/MOJ Statistics Bulletin, 2011): Chart 2.6
Judicial Principles and Approach
towards Youth Offenders
• Childhood risk/disadvantage, (Berman 2011: 16)
• Youth Maturity/Education level matters, (Weijers,
2002: 139-42), (Sentencing Guidelines Council,
Sentencing Youths Guideline, 2009): para. 3.1
• Diversion approach - S 37 ‘prevention’ Crime &
Disorder Act (1998) S 65(4) – police warn rather
than reprimand depending on offence
seriousness. S 66 – YOT referral
• Grave offender? Dangerous offender?
9
Judicial Principles and Approach
towards Youth Offenders
• DTO most common sentence, but downward
trend for custody overall. (Allen 2011): fig.1
• The test to be applied for 12 – 14 year old
persistent offenders and 15 – 17 year olds: ‘Is
the offence of such gravity that a sentence
substantially beyond the two year maximum for
a DTO is a realistic possibility?* Beyond 2 yrs
Dangerous & Grave Crime = Crown Court (JSB
Youth Court Bench Book, 2013): 29, 32-36
10
Judicial Principles and Approach
towards Youth Offenders
• Dangerousness cusp = If the child or young person
was found guilty, would there be a significant risk of
serious harm to the public from them committing further
similar offences and would a sentence of four years
detention be appropriate for this offence? (JSB Youth
Court Bench Book, 2013): 38
• Custody cusp = 1) where DTO is last resort as
YRO/Fine not justifiable 2) where there are no applicable
offence specific guideline(s), ‘the court must look to the
sentence that may have been appropriate for an adult
offender convicted of the same matter,’ (JSB Youth
Court Bench Book, 2013): 81
11
Judicial Principles and Approach in
case law
• DTO regional variations? – ‘post code
lottery for youth custodial sentences’,
(Muncie, 2011): 52
• DTO application – persistent offender?
• DTO application – substantially beyond 2
yr maximum?
• DTO application – ABH with other
offences?
12
Next Steps…
• Gathering qualitative perceptions on meaning (what
principles) and application (how and judicial trust/faith in
impact on offender, victim, society) from judges seems
important as ONLY they sentence. To what extent will
judicial perceptions regarding the impact of youth
denunciation be positive/negative, similar/different? To
what extent will the approach to construct sentencing
remarks reflect youth justice principles?
• Offence + Court areas supported by Methodology/Ethics
and JO permission.
• Expanding this qualitative research in the future to look
at YOT’s who more closely monitor offenders and can
help our understanding of the impact of denunciation 13
outside of court.
THANK YOU FOR LISTENING!
QUESTIONS AND YOUR VIEWS.
14