Magistrates may not be getting the message that custodial sentences are not always in the interests of the juvenile or society as a whole
Lynne Ravenscroft
guardian.co.uk, Wednesday 17 August 2011
It is axiomatic that judicial discretion is at the heart of a humane criminal justice system but unbridled discretion can lead to discrimination, injustice and disproportionality - as we are learning. But, sentencing offenders, particularly juveniles, is a demanding and complex business. It is beset with the conflicting aims and ideals of the system itself, let alone the variety and nature of the offences and offenders. As criticism grows of some sentences imposed on convicted rioters, it is useful to examine how judges arrive at their decisions.
Traditionally, sentencing is based on the four principles of retribution, deterrence, prevention and rehabilitation. There are also special constraints on sentencing in the youth court, including the duty to have "regard to the welfare of the child or young person", from the 1930s (significantly never repealed) and the duty of the courts to show regard for the "principal aim of the youth justice system to prevent offending", from 1998.
All these principles often conflict or overlap and their interpretation and emphasis are subject to those in judgment on that particular day, often three lay magistrates, each with their own perceptions of childhood and crime.
However, all youth court magistrates now have the Youth Court Bench Book, a comprehensive manual which includes structured decision making, sentencing guidelines, and the nature of the many different sentences available. It refers to domestic and international obligations to protect the welfare of juveniles but claims there was "an over-emphasis in the past on welfare" contributing "to the loss of public confidence in the youth justice system".
If you look at the guidelines and the sentencing matrix, anyone charged with riot, violent disorder, or harassment with intent, is immediately catapulted into the top "seriousness indicator", which will include custodial, non-custodial and non-punitive options. If there are then aggravating features to the offence, such as using weapons, elements of planning, the targeting of especially vulnerable victims, custody becomes much more likely. On the same reasoning, it is logical for judges when dealing with offences of theft or burglary done in the context of a riot to regard that fact as being an aggravating factor.
Additionally, if the young offender is then assessed as at high risk of re-offending, custody becomes even more likely but still does not preclude constructive measures to prevent future offending. In the current febrile atmosphere, it is vital that the courts deal only with the facts as presented to them, and not what has been written and said in the media.
Whatever sentence is chosen the reasons for it must be given in open court and are recorded. It is perfectly proper that two boys found guilty of the same offence could be given very different sentences to reflect their very different circumstances. What would be improper is that the court does not or cannot explain that difference. That is where an appeal to a higher authority is an important safeguard.
Click here to read more of this interesting article: http://www.guardian.co.uk/law/2011/aug/17/england-riots-judges-sentence-offenders?CMP=twt_gu
