Re-thinking notions of evidence and proof for sentencing: Towards a more communitarian model
| Published date | 01 July 2023 |
| DOI | http://doi.org/10.1177/13657127231172207 |
| Author | Ralph Henham |
| Date | 01 July 2023 |
| Subject Matter | Articles |
Re-thinking notions of evidence and
proof for sentencing: Towards a
more communitarian model
Ralph Henham
Nottingham Law School, Nottingham Trent University, UK
Abstract
Judges and magistrates are often criticised for failing to take sufficient account of social factors
such as poverty and social deprivation when sentencing offenders. The implication is that the
sentencing practices of the courts lack an important social dimension—that of ‘social justice’—
namely, the perception that the punishment of criminalised behaviour by the state is fair and
non-discriminatory. This article asserts that the notion of ‘social justice’sits uneasily with the
values that sustain the existing paradigm of adversarial trial. It is argued that shifting the focus of
the adversarial trial away from its narrow preoccupation with individual accountability towards
a more communitarian model of penal accountability would significantly enhance the moral
credibility of sentencing and its social impact. A more flexible approach to the admissibility
and evaluation of evidence is advocated, one conceived within a communitarian ideology
whose purpose is to promote penal interventions which enhance social justice.
Keywords
arguments for a more communitarian approach to penal accountability aimed at greater social
justice, negative impact of adversarial trial and retributive justice on the factual basis for
sentencing, opportunities for intervention and diversion through increased judicial
discretionary power, practical implications for broadening the social context of evidence
relevant to sentence, sentencing policy
Introduction
Judges and magistrates are often criticised for failing to take sufficient account of social factors such as
poverty, social deprivation and victimisation when sentencing offenders. The implication is that the sen-
tencing practices of the courts lack an important social dimension—that of ‘social justice’; namely, the
perception that the punishment of criminalised behaviour by the state is fair and non-discriminatory.
Corresponding author:
Ralph Henham, Nottingham Law School, Nottingham Trent University, 50 Shakespeare Street, Nottingham NG1 4FQ, UK.
E-mail: ralph.henham@ntu.ac.uk
Article
The International Journal of
Evidence & Proof
2023, Vol. 27(3) 211–234
© The Author(s) 2023
Article reuse guidelines:
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DOI: 10.1177/ 13657127231172207
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I have argued elsewhere that perceptions of ‘social justice’in the policy and practice of sentencing are
crucial in sustaining the moral credibility and legitimacy of state penality (Henham, 2018). This suggests
that sentencing has a significant communitarian
1
dimension. More specifically, I argue that perceptions of
social value are key to the development of a sentencing policy and practice that promotes social account-
ability and social cohesion.
In conceptual terms, linking penality and social context serves to signify the ‘real’social worth of spe-
cific penal measures to both citizens and communities.
2
In concrete terms, such a perspective links the
morality which underpins the policy and legal framework of sentencing to its social context. For
present purposes, this broadens our understanding of the rules, procedures and decisions that determine
the ‘facts’available for sentencing within the broader context of the criminal trial. Above all, such an
approach recognises that notions of evidence and proof are essentially contextualised and, more import-
antly, that perceptions of law, process and procedure are socially embedded.
This article asserts that the notion of ‘social justice’sits uneasily with the values that sustain the para-
digm of adversarial trial justice as currently conceived. As a general proposition, it suggests that this dis-
juncture has been exacerbated by the predominantly retributive criminal justice policies pursued by many
Western liberal democracies during the late modern era.
3
Moreover, it argues further that the combined
effect of the adversarial trial model and retributive justice policies has been to marginalise the significance
attached to social justice in addressing state responses to crime. This, in turn, has hampered the main-
streaming of more communitarian interventions such as restorative justice, whilst reforms to the conven-
tional paradigms of trial and sentencing have remained over-politicised and constrained.
4
Fundamentally,
there is no sense in which social justice
5
may be regarded as a central moral pillar of state penality in
England and Wales.
6
The value pluralism and social fragmentation of late modern society reflects differing and overlapping
views about the morality of criminalising and punishing certain behaviours, with the pragmatism of pol-
itical expediency rather than social morality often claimed as the rationale for penal accountability.
7
In
such circumstances state and community values often appear polarised, notwithstanding that the devolu-
tion of penal accountability to local communities may be justified politically as community empower-
ment, whereas in reality the locus of penal control remains unchanged. Hence, in such circumstances,
one may argue that the state is in danger of abandoning one of its core functions, that of providing a
socially egalitarian penality which effectively protects all citizens. This imposes, in essence, both an ideo-
logical and normative imperative on the state.
1. ‘Communitarian’is used here to signify the interrelationship between the individual and the community and its importance in
shaping notions of responsibility and accountability. See further Lacey (1988) and Cotterrell (1995).
2. This article adopts the following definition of ‘penality’:‘the networks of laws, processes, discourses, representations and insti-
tutions which make up the penal realm’see Garland (1990: 17) ‘…penality communicates meaning not just about crime and
punishment but also about power, authority, legitimacy, normality, morality, personhood, social relations, and a host of other
tangential matters’(1990: 252).
3. Scholars who defend retributivism as the main justification for punishment argue that sentencing should not concern itself with
social policy questions like social deprivation; see Von Hirsch (1992). The fact that the punishment itself has an impact on offen-
ders, victims and the wider community that may go far beyond the imposition of the sentencepresents a fundamental dilemma for
the retributive model; Easton (2008).
4. See Henham (2021). Notwithstanding, the developmentof problem-solving courts and ‘out of court’disposals has increased; see
further, Bowen (2021) and Gibson (2021), respectively.
5. Particularly significant for present purposes are values which might promote the individual autonomy, agency and empowerment
of victims and victim communities.
6. The primary focus of this article is the sentencing policy and practice of England and Wales, although the arguments put forward
are intended to be more generally applicable.
7. The extensive use and expansion of the guilty plea discount in recent years may be linked to increased political pressures for
bureaucratic and financial constraint; see McConville and Marsh (2014).
212 The International Journal of Evidence & Proof 27(3)
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