The Perils of Criticising a Criminal Sentence for "Undue Leniency"

The Attorney General has announced that the 15-month jail sentence given to Stuart Hall following his conviction for child abuse offences years ago will be reviewed. That is one of the AG's functions: to consider and, if necessary, review sentencing decisions. There is certainly considerable public dismay at the sentence passed, but it is a little surprising to find so many commentators pre-judging the outcome of this review. After all, the review may yet uphold the judge's decision. Moreover, from what I have seen, none of the commentators knows about the detail of the case in the way that the judge did, and none of them that I have seen has a background in or experience of criminal sentencing.

Jonathan Freedland's article in the Guardian might be a good example. Freedland is an excellent commentator on political matters, but I'm not convinced by his critical comments on this purely legal matter. One of the things about sentencing for criminal offences is that the decision is taken in line with the law, and not on the basis of political pressures, public opinion, or the views of victims or their families. The policy which underpins sentencing law is independent of these factors for obvious reasons - the avoidance of mob mentality, basically. It is the judge who heard the case, and who knows all the evidence, who makes the decision about the sentence within the general guidelines issued.

I'm not trying to make any comment about the Hall case in particular. Maybe the judge did give undue weight to various mitigating factors. No judge is infallible, and that is why we have reviews and appeals against sentence. But at the same time, the judge is the one tasked with making the decision, and when there are choices to make they are his to make, and it makes me uncomfortable that people would publicly criticise the decision without apparently giving any credit to the judge's expertise or to the fact that the review has yet to take place.

For example, Freedland criticises the judge for choosing to impose concurrent rather than consecutive sentences. Well, who knows what another judge might have done, but if the judge is asked to decide, and he gives cogent reasons for choosing one rather than the other (which this judge did: he expressly acknowledged that consecutive sentences would have been possible, indicating that he considered and then rejected this option), it is questionable whether commentators should then criticise him for that decision.

Successful appeals against unduly lenient sentences are fairly uncommon, I think, not least because there is always a range of sentences that could legitimately be imposed and the judge is the one tasked with picking within that range. In this case the judge was surely aware that the decision he took, whatever it was to be, would be scrutinised by the media. The case was a high profile one, and while that should not have affected the decision the judge took, it no doubt caused him to think particularly carefully about it, and to weigh the options available to him. So let's wait and see. There's obviously a concern here and I don't know yet whether it is justified or not, but as a general principle I wouldn't be surprised if the outcome of an impartial review was to uphold the judge.

Negative Impact? When your research stops something from happening

Large amounts of money for UK university research are allocated through a process known as the Research Excellence Framework (REF). As part of the next round of the REF, academics in the UK are being asked to think about the 'impact' of our research outside academia. This post, which was originally written for the Impact Blog of the London School of Economics, discusses the idea of 'negative impact', which is when the effect that your research has is to stop something from happening.



Does it count as ‘impact’ if a researcher's great achievement in the world beyond academia is to stop something from happening? Most academics have come to think of impact as a tangible change of some kind in policy, business, industry or society in general arising because of our research. But what about the case where someone ‘out there’ has had a bad idea and is in the process of trying to implement it, and you step in with your research and stop that idea coming into being? Is that impact? And if it is, how do you show that it was your research that had this effect?

The views of REF assessment panels remain unknown at this stage, but it seems to me that this form of impact – what I’ll call negative impact – is potentially just as important as any other form. Using research findings to save the status quo from poorly informed ‘reform’ ought to be valued as highly as any other engagement that academics have with wider society. That said, I’m less sure about how you know when you’ve had this kind of effect, or how to demonstrate it to anyone.

I propose to explore this with an example from my area of research, family law. I’m not sure whether the example actually involves negative impact or not, but at least it should serve to demonstrate why this issue matters. 

An Example: Family Courts and the Media

Most court cases in England and Wales are open to the public. Anyone can just walk in off the street and watch what’s happening. But family cases involving children or post-divorce financial arrangements are different, and the default rule is they are heard ‘in private’. That means that only people directly associated with the case are allowed to be in the court room.

There are good reasons for this rule. Family courts deal with sensitive, personal events in people’s lives – allegations (which might or might not be true) about parents neglecting or abusing their children, questions about whether a child should have a dangerous medical operation or not, women seeking protection from physical, mental or emotional abuse by their partners or other family members, and so on. These are things that people are entitled to keep private, and they should be able to get help from the court without the rest of us standing on the sidelines gawping.

However, the flip side of this privacy is that the general public is not well informed about what happens in family courts, and consequently there is much scope for misunderstanding. A series of comment articles by Camilla Cavendish in The Times raised the public profile of this issue with an attack on what Cavendish called the “secret justice” of the family courts. (Although these articles were largely based on unrepresentative anecdotes that don’t fit with the bigger picture, they gained traction in the public debate because, as I've discussed before, anecdotes often make better stories than research findings).

In part because of the campaign by The Times, there was a push in 2009-10 for a change to the law. Reforms were introduced in April 2009 to allow media representatives to attend family cases, but rules on reporting cases were not changed. That meant that although a journalist could attend most cases, he or she could not write about any particular case, but only about the family court system as a whole. Given that the media’s criticism of the courts was that they were systemically biased and unfair, that seemed a reasonable step, but the campaign for reform continued.

When further legislation looked likely, the Nuffield Foundation commissioned me to write a Briefing Paper on the subject as part of Oxford University’s Family Policy Briefing Paper series. The purpose of these papers is to offer a clear overview of the research evidence available on a particular issue which can then be sent to policy-makers, government officials, journalists, think-tanks, third sector organisations, and so on. While the Briefing Paper was not a lobbying document, the message from the research was clear: the proposed changes would be complicated, difficult to implement, and involve infringement of people’s privacy in personal disputes.

My involvement with this Briefing Paper led me to give submissions to the Children, Schools and Families Select Committee and to Ministry of Justice officials at consultation meetings. The findings of the paper were reported in specialist law publications and national media, and I did a BBC local radio interview about the issue. Nonetheless, the Children, Schools and Families Act 2010 was passed by Parliament in the dying days of the last administration, and I thought that my efforts had come to nothing. But here we are, two years on, and the relevant parts of the Act are still not in force (meaning that they have no effect – they are on the books but a dead letter unless activated), and the current government is about to introduce provisions in the Crime and Courts Bill to repeal this part of the CSFA 2010.

Discussion

So is that impact? It’s obviously quite hard to work out what my role was in any of this, because there were many other people and organisations involved on both sides of the debate. It is also difficult to know quite why the coalition government has not implemented the relevant provisions, since I am unaware of any public statement on the issue. All I have is correlation (my work against the reforms, and the reforms not being implemented) but no real indication of causation.

But then, I think that’s almost always going to be true. The status quo usually has some merit which people can see, and an academic’s contribution to making the case against change will usually be only part of a larger discussion. I’ve just had a similar experience (but with a less positive outcome) on legal aid reforms, and a new debate is just kicking off on proposals to reform the law governing parent-child relationships after parental separation. In all of these cases, the research community has sought to show that the proposed reforms may be harmful in some way and that the status quo is, overall, a preferable state of affairs.

Of course, sometimes we win and sometimes we lose. But when the tide is clearly moving in favour of change which research suggests will be for the worse, there ought to be some credit for the negative impact of making those findings public in such a way as to help stop the reforms.

Research Versus "The Anecdote"

This is a post about the challenges of communicating research findings which have to go up against compelling but unrepresentative anecdotal stories, taking as an example the anecdotal attack on the family courts.

My colleague Peter Clarke used to joke that his students would "never let the facts get in the way of a good argument". In this post, I offer some thoughts on the difficulty that researchers often have in dispelling myths when they have to challenge an established public or media narrative that is supported by the all-powerful anecdote. Just as facts didn't stop Peter's students' arguments, research can struggle to overcome the rhetorical appeal of the anecdote. To paraphrase Peter, the media and the public "never let the research get in the way of a good anecdote".

Why anecdotes are compelling and research is not

Anecdotes have a number of qualities which make them great stories. First, they have human interest – we get to learn about a real person and to pry into their personal experience in some way. Second, they are usually quite simple – events unfold in an understandable way, and the consequences are easily explained. Third, they are believable because they (at least supposedly) actually happened. And finally, anecdotes are usually dramatic and extreme – after all, that’s why the story is being told. It’s like the news – only unusual or dramatic events are worthy of being reported, so you never hear:

“This morning, a woman got into her car, drove to work, and arrived there 20 minutes later without incident. On arrival, she picked up the post, made a coffee and started work. In other news, James Smith aged 8 has successfully learnt the six times table.”

Those aren't news stories, and they wouldn't be good anecdotes, because they are normal events. On the other hand, car accidents or mail bombs are news and would make great anecdotes - they are dramatic and extreme.

Research struggles to compete with any of this, no matter how interesting it is. But if the research is relevant and well done, why should this be?  Part of the reason might be that research findings rarely have any of the qualities that anecdotes display.

Most research does, in fact, have a huge amount of human interest, which seems like a good starting point. But the problem for researchers is that we struggle to tell people about the human interest in our findings because, for ethical reasons, we anonymise our work and try to make sure that the people who help us with our work are not identifiable in what we say about it – so we don't talk about individual people and we don't reveal personal experiences.

Then there’s the problem that research findings are rarely simple. We find complicated things, and as researchers we are nervous about over-simplifying what our evidence shows. When asked a question about our findings, often the instinctive (but perhaps unhelpful) response for many of us is: “well, it depends”. We find it almost painful to have to give straightforward answers, in case we look like we are misrepresenting the evidence.

Research ought to be believable, though – but perhaps the problem is that the way we try to convince people that our findings can be trusted is to tell them about our methodology – and let’s face it, that’s boring. Anecdotes don’t have to convince you of their veracity, because they come pre-stamped as being “actual events”, whereas research is an overview which can be harder to understand if you aren’t a professional researcher.

And then finally, dramatic and extreme? No, research findings are rarely dramatic or extreme. In fact, a lot of the time what we see is the exact opposite – we’re finding empirical confirmation of normal and everyday things. If you did research on people’s morning routines, most people’s would be as unexciting as my non-news story of a woman’s drive to work.

So all of this means that researchers can find it hard to give their findings traction in the public consciousness, particularly when there’s a good anecdote or two which contradict what the researcher is trying to say. Sometimes these mismatches between empirical reality and anecdotal rhetoric are annoying but insignificant - but at other times, they are dangerously misleading and potentially very damaging.

I'm going to use the second half of this post to illustrate what can happen when anecdotes trump research by taking an example from my area of research, the family justice system.

A practical example - the family courts 

The thing that has got me thinking about this at the moment is the on-going attack made by Camilla Cavendish and The Times on the family courts of England and Wales, the latest instalment of which appeared last week. This has been going on for some years now, with Cavendish writing about what she calls the "scandal" of the family courts of England and Wales. The cause of this problem, Cavendish thinks, is that the family court cases are "secret", because they are heard in private and the media are not normally in attendance. The answer, therefore, is to “open them up” to allow the light to shine in by allowing the media (and perhaps the general public) to go to family court hearings and then tell people about what they see.

I think that Cavendish is probably well-meaning, and perhaps genuinely sees herself as some crusader for justice, but her ill-informed criticisms of the family justice system based on anecdotal stories which ignore consistent research findings are wrong-headed and dangerous. Her ideas might sound sensible, but I think that the idea of "opening up the family courts" is truly misguided.

The reason that the media and the public are kept out of family court hearings is not because they are “secret” but because they are private. We are talking about incredibly sensitive, personal events in people’s lives – divorces and separations, allegations (which might or might not be true) about parents neglecting or abusing their children, questions about whether a child should have a dangerous medical operation or not, women seeking protection from physical, mental or emotional abuse by their partners or other family members, and so on. These are things that people are entitled to keep quiet, and they should be able to get help from the court without the rest of us standing on the sidelines gawping.

Leaving the merits of the debate aside, though, the real problem here is the way that the rhetoric has been taken hostage by anecdotes and stories. Cavendish and others have constructed this debate as being about "secret justice", frequently using individual cases to make vast sweeping statements about the family courts of England and Wales. Cavendish’s most recent rant damned the entire system based on one extreme case (which, incidentally, was largely taking place in the public gaze of the criminal courts, not the private sphere of the family courts) and, for great comment on that I'd recommend Lucy Reed on the Pink Tape blog. As Reed says, one complicated case where it turned out that the medical evidence that the court had to rely on was wrong does not indicate that there is a systemic problem with the family courts. There are thousands upon thousands of family court cases every year, and the vast majority proceed carefully and correctly.

Obviously sometimes people aren’t happy with the outcome of their case, but that seems unremarkable. When people go to court, sometimes they lose and sometimes they are unhappy about that, especially when the case was about something that was personally important to them (their children, for example). But just because people aren't happy doesn't mean that the system is broken. In cases where something has actually gone wrong, we have appeal courts – and, if you look at those cases, appeal judges are not shy of criticising their junior colleagues when things go wrong. (Most Court of Appeal cases are available free of charge on the British and Irish Legal Information Institute’s website.)

The reason that this matters is that the anti-family court narrative that is currently in vogue is undermining public confidence in an important institution. The family justice system isn't perfect, but in the vast majority of cases it does a good job in difficult circumstances. The independent Family Justice Review in 2011 made minor suggestions for changes to the system, but on the whole was positive in its conclusions about the workings of the system. The people who work in family justice - lawyers, judges, social workers, mediators, financial advisers, guardians and others - are mostly dedicated and hard-working, and they are doing their best to find reasonable solutions to complicated and highly conflicted problems. We shouldn't allow unrepresentative anecdotes to lead us to think that there is some scandal in the family courts, no matter how good the story sounds.

Author's note: I wrote a briefing paper on media access to family

court cases in 2009, funded by the Nuffield Foundation. While I

conduct research into family law and the family courts, I do not

work in the family justice system and have no personal interest in it.