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February 4, 2016

Should judges use instinct?

When Mr Justice Coulson decided to identify fifteen year old Will Cornick, after sentencing him for the murder of Ann Maguire, he said  “In my view, naming him has a clear deterrent effect. Ill-informed commentators may scoff, but those of us involved in the criminal justice system know that deterrence will almost always be a factor in the naming of those involved in offences such as this.”  Other judges also refer to the deterrent effect of naming and shaming a child, and of long sentences.  And because deterrence has been cited now by a lot of judges, it has achieved the status of case law.  But am I “ill-informed” to question this belief in deterrence?

There is no evidence that children are deterred from committing crime either by the prospect of the punishment or the prospect of being named.  Most child crime is spontaneous, often impulsive. Many children on licence from prison re-offend “knowing” not just that they will return to prison, but exactly what they are facing.  Some judges agree.  Mr Justice Keith said in the case of two boys who had nearly murdered another: “I see the force of the argument about deterrence – theoretically at any rate – but I rather doubt whether in practice the thought that you might be named in public if you committed a sufficiently serious offence would actually occur to any potential young offender”.

What gives judges their own insight into adolescent motivation and behaviour?  I discussed this with a senior judge. He personally didn’t agree with the deterrence argument, but felt that it was up to individual judges to have their own opinion, particularly given that evidence either way was not definitive.  But naming a child is a huge decision which can blight a child’s life, and that of their family, for ever.  A judge should not be able to make such a momentous decision on the basis of their hunch or opinion.  And the problem gets multiplied when many judges have the same hunch, and this group-think is then used as its own justification for future decisions.

There is some room for instinct in judging, but we also need more expertise in people not law. Why shouldn’t all criminal judges do a course in criminology before sitting, and learn the importance of challenging assumptions and unconscious bias?