Re-thinking notions of evidence and proof for sentencing: Towards a more communitarian model

Structural problems

However, sentencers normally have a discretion regarding whose version of events to believe where there are conflicting accounts as to whether the offender was engaged in a continuous course of conduct, as long as they do not assume the existence of facts clearly negated by the formal finding of guilt. A crucial question that arises in this context is the extent to which general principles relating to the burden and quantum of proof apply in reaching a decision as to whether a fact is relevant to sentence. This issue gains in significance where the sentencing phase of the trial process is separated from that which determines guilt or innocence, and its form is determined by conventions, principles and relationships that differ from the main body of the trial. In England and Wales, not only has the sentencing phase of the trial traditionally been one where the principle of judicial independence has found its fullest expression, it has also developed its own philosophical rationales, procedural rules, sentencing principles and policy.

The separation of verdict from sentence, whether as a unified or two-stage process, also poses a significant structural question regarding the most appropriate processual context for realising the constructive potential of judicial discretion and facilitating the integration of restorative interventions in trial decision-making. One of the most significant practical implications resulting from the separation of verdict and sentence concerns the need for evidence to be reconstructed to serve the purposes of the sentencing phase. For example, evidence relevant to sentence (such as that relating to loss of control) may not be sufficiently explored, even during a full trial. ²⁰ Where the offender pleads guilty these difficulties are exacerbated, since the prosecution and defence accounts of the facts may differ considerably. Yet this phenomenon can also occur within an integrated criminal process model. In Italy, for example, specific criteria establish the boundaries for the exercise of discretionary power relevant to sentence, but it is witness testimony elicited during the trial phase that is evaluated against these legal constraints. Judicial deliberations follow immediately after the close of the trial and, after considering any unresolved preliminary matters and/or procedural issues, judges must consider each issue of fact or law, as well as the proper sentence. Needless to say, such abbreviated proceedings and procedures may facilitate sentence bargaining and further distort the extent to which the facts upon which the sentence is based actually correspond with those that occurred. Similarly, rights accorded to victims are directed towards the trial (verdict and sentence) rather than to sentence alone. ²¹

Arguments in favour of holding a separate sentencing hearing following conviction are considerable. For instance, in a mono-phase hearing, the necessary omission of mitigation evidence may prove prejudicial to the defence when it comes to sentencing because it restricts information concerning the individual's personal role in the commission of the crime and its immediate aftermath coming before the court. The introduction of such evidence during the trial may impact adversely on the accused's right of silence and protection against self-incrimination. In addition, the defence may be induced to introduce further witnesses during the trial process in order to establish the accused's good character and personal circumstances. Alternatively, from the prosecutor's point of view, a second hearing may facilitate the introduction of aggravating factors (for example, relating to the accused's criminal record) that might be considered inadmissible for reasons of irrelevance during the trial proper. In any event, the range of admissible material for sentencing purposes is potentially considerable. ²²

There are, however, broader issues raised. Firstly, there is an argument for supporting separate sentence hearings for symbolic reasons; that marking out as distinct from the verdict the public deliberation and pronouncement of sentence has an enormously powerful symbolic effect in drawing attention to and dramatising the punishment, as well as promoting psychological and emotional feelings relating to atonement and closure. ²³ Arguably, a mono-phase process produces obfuscation in sentence justification and, since it does not promote an alternative context for sentencing, is likely to negate and stultify arguments that explore issues relating to the social impact of sentencing decisions in favour of those which sustain the status quo.

Secondly, an argument can be made out for suggesting that a two-stage process serves to emphasise the qualitative distinction between the pre and post conviction phases of the trial by signifying that different substantive and procedural norms apply. It is also significant that, in the English context, the sentencing phase of the trial is often used by judges to make what Ashworth refers to as ‘moralistic homilies’ and that the systematic analysis of relevant aggravating and mitigating factors is associated with and developed within this processual culture (Ashworth, 2000: 306). Arguably, such tendencies are negated within a mono-phase trial process, particularly where the process is dominated by a predominantly retributive ideology that does not encourage transparency or the reasoned analysis of evidence for broader socially constructive sentencing purposes.

Failure to clarify the relationship between substantive offence elements and sentencing principles ²⁴ exacerbates these difficulties. By convention, substantive law establishes the minimum conditions for criminal liability whilst sentencing principles deal with the consequences that follow conviction, the moral distinctions between offences are drawn in the framing of substantive offences, with specific factors bearing on culpability and harm being reserved for the sentencing phase.

Conceptual confusion

It is therefore important to differentiate clearly and consistently between the notions of ‘gravity’ and ‘seriousness’ as commonly accepted for the purposes of trial and sentence. The ‘gravity’ of a crime is reflected in the legal definition which establishes the constituent elements of criminal liability, whereas ‘seriousness’ for sentencing purposes is used to denote the appropriate degree of harm and culpability in a particular case. ²⁵

More broadly, contemporary notions of ‘gravity’ should reflect public opinion, ²⁶ whilst notions of ‘seriousness’ are employed to indicate the nature of the penalty and the appropriate sentence. Hence, the normative import of each factor is distinct. Viewed thus, the ‘gravity’ of a crime is concerned with the substantive issue of criminal liability, whereas the determination of ‘seriousness’ for sentencing purposes is essentially a procedural device linking criminal liability to the appropriate punishment. Policies and structures for achieving this goal may range from those which encourage the largely unfettered exercise of judicial discretionary power to the strict regulation of sentencing through prescriptive guidelines.

This dichotomy between substantive and procedural concerns raises significant evidential questions regarding the treatment and admissibility of material for sentencing. Thus, for example, the rules which govern the nature and admissibility of the evidence necessary to establish a racially or religiously aggravated crime will differ from those under the Sentencing Act 2020, s. 66 which deal with the level of sentence uplift appropriate to such crimes following conviction.

Procedural distortion

The disclosure, presentation, testing, admissibility and prioritisation of criminal evidence satisfy distinct purposes. ²⁷ As moral and political ideologies shape the criminal law over time, so they correspondingly influence how the purposes of punishment are perceived. Crucially, contextual factors influence the criminalisation of behaviour by the state and the perceived severity and ranking of penalties according to ‘seriousness’ (von Hirsch, 1992). Thus, whilst the evidential requirements of criminal liability and punishment remain distinct, their instantiation as theory and practice remains relative to time and space.

The tendency for evidence relating to sentence to be ignored or marginalised is accentuated where offences are broadly defined. This problem is exacerbated where a plea of guilty has been entered to some or all of the offences charged. ²⁸ The implications are considerable, since the paucity of relevant contextual material for sentencing may produce injustice in particular cases. Where a guilty plea exists a dispute regarding the nature of the factual evidence deemed relevant for mitigation by the defence may need to be challenged by the court, either in terms that require the defence to adduce further evidence to substantiate their version of events, or through the instigation of some kind of procedural device ²⁹ whereby various approaches are adopted in order to elicit an agreed version of the facts before proceeding to sentence (Wasik and Ashworth, 2020: 402).

Additional difficulties stem from the compromising effect of plea bargaining in this context. ³⁰ A specific criticism illustrating the distorting effect of plea bargains and their capacity for downgrading the ‘truth’ in terms of how the trial marks the seriousness of what has taken place through punishment concerns the factual basis underlying the conduct charged. Plea bargains and other forms of negotiation manipulate evidential ‘truth’ to suit processual goals. Not only does the plea deny the possibility of testing the evidence in open court, the acceptance of a charge, or selected charges, as reflecting the totality of the accused's criminal conduct effectively denies the court the opportunity to give full expression to the totality of that criminality through the imposition of a penal sanction which adequately reflects the seriousness of the crime(s) in terms of harm and culpability (Johnston, 2020). More broadly, penal effectiveness and punishment's undoubted capacity for symbolic public expression and the denunciation of past crimes is seriously compromised if it fails to reflect the totality of the offender's criminal conduct. Hence, the guilty plea's marginalisation of the ‘victim’ and denial of participatory rights are particularly significant issues in the present context. ³¹

Restorative potential

Conceptions of restorative justice, whilst being more suggestive of non-adversarial procedures, are not necessarily at variance with deserts-based retributive sentencing (Dignan, 2003; Dignan and Cavadino, 1996). Furthermore, as Zedner (1994: 248) suggests, both reparation and retribution are predicated upon notions of individual autonomy, ³² although ignoring the impact of structural inequality, power and social control. A potential difficulty lies in the fact that, whilst retribution equates proportionality with an objective assessment of culpability and harm, reparative justice is proportionate to victim harm, thereby suggesting a process of social intervention going beyond the normal boundaries of conventional criminal punishment. Such imperatives for reconciliation and reparation are also compatible with restorative justice principles aimed at increasing stakeholder empathy and understanding, empowering victims and communities and increasing the potential for meaningful participation. Certainly, restorative justice principles may be viewed as potentially capable of re-empowering citizens and a democratic force for social cohesion.

Whatever the potential for restorative justice, its value and relevance in the present context lies in its capacity to challenge conventional notions of retributivism and its relationship with other conceptualisations of penality in sentencing (Freiberg and Bartels, 2022).This includes a recognition that restorative objectives can promote social harmony and that values enabling reparation and reconciliation should direct sentencing rather than retributive practices lacking social legitimacy. ³³

Accordingly, sentencing policy should be developed from a firm commitment to ground rationality in social context. Sentencing can provide an operational context for relational forms of justice, implying the need for substantial sentencing discretion (du Bois-Pedain, 2017b; Henham, 2022). However, rationality alone, in terms of prioritising certain moral values and their expression as general justifications, is insufficient. It is only when values are operationalised effectively as normative principles that they have the capacity to influence individual thought and social action. Thus, the crucial empirical question is the extent to which practice actually gives effect to those values.

The predominant retributive paradigm facilitated through the adversarial trial model signifies a process whereby ‘facts’ are distilled and admitted as evidence through closely regulated norms of adversarial argument and interrogation. Similarly, guilt or innocence is based on the allocation of individual responsibility derived through prevailing argument, the ‘victim’ being vindicated through whatever state rules prescribe rather than communitarian interests. By contrast, in a restorative process the establishment of ‘facts’ which may be accepted as constituting ‘truth’ is derived through processes of mediation and reconciliation, the objective being to empower victims and victim communities to establish mutually accepted narratives of ‘harm’ through voluntary participation. Rather than the process allocating responsibility in a seemingly autonomous manner, restorative processes empower participants by ceding autonomy and agency, encouraging tolerance, and promoting reparation and restoration. ³⁴

By establishing the ‘truthful story’, restorative outcomes effectively vindicate the victim through community intervention whilst confirming community interests through restoration. Thus, in general terms, restorative processes empower victims to re-establish dominion by asserting their full rights as citizens. Extending the notion of ‘victim’ to include that of ‘community’ allows both to claim ownership of crime and achieve closure. Moreover, restorative justice discourages standardisation by questioning notions of consistency and proportionality typical of deserts-based sentencing regimes. ³⁵

In sum, mainstreaming restorative justice would require a reconceptualisation of the nature, meaning and significance of ‘truth-finding’ within the criminal trial. Accordingly, I argue that the present notion of criminal responsibility associated with the allocation of individual guilt should be tempered by a more socially instrumental notion of fact-finding, one that promotes the emergence of ‘truth’ from a process of compromise involving victims and victim communities. Such a process would be driven by a desire to regulate relationships of community for the common good, rather than in celebration of the subjugation of the offender and the vindication of the victim as part of the apparatus of social control.

Reconceptualising aims and justifications—social values ³⁶ and restorative justice

I have argued that the promotion of social justice should become a key objective of sentencing policy, providing a new normative and ethical context for sentencing wherein relevant social impact evidence could be maximised without sacrificing core principles of proportionality and consistency (Henham, 2018: ch. 1). By emphasising social relevance and inclusivity, value would shift from prioritising individual guilt, allowing a principled engagement with communitarian notions of accountability. Thus, harm and culpability would be addressed within a framework sensitised by the need for sentencing, and penal policy more generally, to engage with the moral and social significance of crime and punishment at the grass roots level.

This approach recognises that social justice cannot be engineered or imposed successfully by the state, but must be achieved through a reconciliation of competing values. The declaratory role of sentencing as a public platform for expressing social values likely to promote social justice is invaluable in achieving this purpose. However, for social values to be recognised and operationalised through the ethics and practice of sentencing, there must first be some agreement as to what such values should be. Thus, once established, the familiar rhetoric of retributive penality would be replaced with a clear statement of which ‘core’ values the state supports in sentencing policy. Beyond this, however, such values would require demonstrable contextual validity before they could be operationalised effectively by the state through sentencing policy and practice.

Accordingly, the moral authority of what the state recognises as shared values for the common good, or what the British Academy Report suggests as ‘core’ values, ³⁷ cannot be assumed simply on the basis that they are representative of the values that underpin most Western liberal democracies. Such assumptions do not confer social legitimacy on state penality per se—this requires empirical validation. However, certain values, such as dignity, autonomy and inclusion, may be deemed intrinsically good, and therefore valid, in the sense that they tend to promote social harmony, since social harmony is for the common good and essential to the maintenance of ‘civil’ society. Hence, empowering victims and communities to achieve greater autonomy by enhancing rights of access and participation in the sentencing process and beyond may be perceived as contributing to social cohesion.

Notwithstanding, since the value pluralism of contemporary society is reflected in the understandings and meanings citizens attach to moral questions, empirical verification is essential. Thus, the values adopted by the state as penal ideology require social legitimacy through empirical verification if they are to provide shared moral foundations for policy and practice. As things stand, the way ‘core’ values such as ‘liberty, autonomy, dignity, inclusion and solidarity’ come to be recognised or perceived by the state or citizens, in either an individual or social sense, cannot be assumed. ³⁸

If one accepts that the moral values by which the state justifies punishment should be broadly shared, there remains the normative question of how such moral imperatives can be operationalised through sentencing. Accepting the conclusion that shared values are essential to the social legitimacy of penal decision-making demands fundamental change to the existing paradigm for trial and sentencing. Crucially, this approach recognises that the ideology, practices and outcomes of sentencing are collectively implicated in amplifying and recursively reinforcing state penal power. ³⁹

In practical terms, adopting a new paradigm to facilitate the introduction of contextualised information requires significant modifications to both substance and procedure. ⁴⁰ Major substantive changes would include enhanced rights of access and participation for victims and other trial participants, both lay and professional. In essence, these changes are consistent with O’Mahony and Doak's call for greater autonomy and agency in re-imagining restorative justice (O’Mahony and Doak, 2017). Empowering those directly involved in penal intervention, especially victims and communities, accepts the need to respect shared values when shaping restorative resolutions to crime, particularly those which impact victims and victim communities. Accordingly, their approach recognises that the social embeddedness of crime and punishment, especially its link to social cohesion, should be acknowledged.

Practical implications

We now turn to consider some specific changes which could be made to the legal and process norms that currently govern the adversarial form of criminal trial in order to promote a different approach to the treatment of evidence for sentencing, one which is more consistent with advancing a restorative and victim-centred resolution to the criminal process.

Issues of principle and value

Although social values may be articulated as abstract concepts, the legitimacy of sentencing largely depends upon the way individual sentencing decisions are perceived. Social values are essentially relational values. Hence, their meaning and relevance must be established empirically. Moreover, social values should be shared for reasons of the common good before being recognised as foundational values for state punishment. Fundamentally, such an approach recognises that the moral authority of penal values is always socially contingent, relative to time and space.

Watson has recently explored the contingency of respect as a value and ethic for practice (Watson, 2021). In particular, she argues that respect and legitimacy in sentencing are relational in that they are concerned with the nature and quality of the interaction between citizen and state. As Watson suggests, ‘respect and legitimacy might, in fact, be preconditions for an effective justice system because they promote meaningful citizen-state relations and are good predictors of offender compliance with the sentence imposed’ (Watson, 2021: 6). Hence, respect as a value in the context of procedural fairness appears crucial to the perceived legitimacy of sentencing, both in terms of the process itself and the likely success of the penalties imposed. If respect is related, either directly or indirectly, to perceptions of what is just and fair, then this should have a significant influence on the values and norms governing social interaction, and consequently the degree of social cohesion within a given society. Regrettably, as Watson suggests, respect remains vague as a concept, subordinate to the instrumental goals and constraints of criminal justice institutions and largely disconnected from the subjective contextual realities of crime and victimisation.

A key question in the present context is whether, and to what extent, respect is, or can become, relevant to enhancing the moral credibility of sentencing (Henham, 2018: 114). In this sense, as a foundational value, respect should influence the form and direction of sentencing policy, particularly if one takes the view that sentencing must empathise with the subjective understandings of stakeholders to retain legitimacy. Such a relationship should reflect and become part of an ongoing discourse between citizen and state regarding the aims and purposes of punishment. Recognising the intrinsic value of respect as an organising principle is crucial to legitimacy because respect for equality and inclusion as providing meaningful rights of access, participation and treatment are prerequisites for social justice. As such, respect represents a key aspect of the moral basis upon which citizens implicitly agree to restrictions being placed upon their individual rights by the state in response to crime.

Increasing the perception of social justice is likely to impact effectiveness and alert sentencers to the diverse social and moral contexts of criminality and victimisation within communities. Such an approach not only recognises the fluidity and relativity of moral values, but also their overlapping nature and complex patterns of communication. Fundamentally, however, it recognises the need for penal law and policy to pre-empt citizens expectations, ⁶⁴ rather than simply react to change where value pluralism persists. Thus, policy should be sensitised, engaged and reflective of social values in a real sense (Henham, 2018: ch. 4).

If respect is to be valued as an ethical constraint, moral empathy and sensitivity in criminal justice practice must be genuine and empirically grounded. As argued, new foundational values are required to achieve such meaningful change in ethics and practice. Hence, values such as respect demand both conceptual and normative clarity before their reformative potential may be realised. ⁶⁵

The above discussion has significant implications in the present context. In principle, values such as liberty, autonomy, solidarity, dignity, inclusion and security should be respected by the state in its dealings with each citizen. However, the extent to which sentencing policy promotes such values is both socially and politically contingent. Socially contingent, because sentencing policy should as far as possible be based on values that are shared for reasons of the common good and, politically contingent, because the extent to which such values are reflected in policy within liberal democracies is a function of how political power is secured and exercised in the penal context.

The latter raises fundamental questions about the meaning of control and participation in relation to the criminal trial and sentencing and the extent to which social justice values are, or may be, realised for all citizens. Control is the critical variable here, since actualising penal values through the criminal trial and sentencing suggests a relational dynamic that consistently restates the power relations between citizen and state. Viewed thus, structure and process are crucial in shaping the nature, quality and impact of the trial's ‘truth’. ⁶⁶ Hence, the social legitimacy of trial justice needs to be consistently restated and re-enforced.

At the core of reconceptualising the foundational values of the criminal trial and sentencing is the purpose for which evidence is utilised; a desire to construct a ‘truth’ conceived within a paradigm which is more engaged with the social contexts of criminality and desistance. ⁶⁷ Broader notions of access and ‘participatory rights’ have been slow to develop within the existing paradigm, despite pressure to extend rights of access and participation to victims (Doak et al, 2009). Existing laws, rules and procedures have also failed to respond adequately to changed expectations regarding the aims and outcomes of penal intervention. ⁶⁸ For example, Doak et al. (2021) argue that recent evidential developments for vulnerable witnesses are only now moving away from the orality principle and traditional conceptions of cross-examination.

Notwithstanding, such reforms remain seriously constrained by the existing retributive and adversarial paradigm. More broadly, the moral distance between state penality and social values persists, such obfuscation being magnified by value pluralism. As Doak et al. (2021:110) suggest, changing entrenched values and practices is difficult; institutional pressures to preserve existing rights remain considerable. Hence, it is important to consider how the changes argued for might enhance social justice in sentencing.

‘Public interest’ arguments for balancing rights and liberties ultimately depend upon how the goals of punishment come to be defined and resolved. ⁶⁹ If the aims and solutions are perceived as partial or repressive, then it may be seen as appropriate to challenge the basis upon which particular rights are secured and upheld in criminal trials. In this regard, one may question whether the ‘public interest’ is best served by penal pragmatism or the adoption of values that promote inclusion, autonomy and dignity. I have argued that the social value of penal intervention is significantly diminished when issues of race, religion and discrimination are ignored or marginalised. Moreover, operational goals should never privilege bureaucratic efficiency and fiscal prudence at the expense of social justice. The latter requires policy based upon foundational values with a clear social purpose.

As Findlay and Henham suggest (2010: ch. 6), social accountability requires the construction of a socially inclusive framework for justice delivery based on a clear social agenda. In the domestic context, such an inclusive accountability for the trial should reflect democratic values by identifying and giving relevant stakeholders appropriate rights of access and participation; encouraging honesty and transparency through building trust and promoting ‘truth-telling’ through process; and supporting socially valued outcomes in facilitating mediation, reconciliation and social reconstruction. As argued, the potential for achieving social accountability through the greater involvement of communities is severely restricted by retributive ideology and the adversarial mode of trial. Developing a capacity for social accountability requires a penal framework that is sensitive to the contextual needs and moral sensibilities of victims and victim communities.

Pragmatism and social justice

Pragmatism will continue to drive sentencing policy if values considered more likely to promote social cohesion remain marginalised. ⁷⁰ At present, the short-term political pragmatism driving policy and practice serves only to perpetuate rule of law justifications and the status quo of punitive penal intervention. Such instrumentalism symbolises the antithesis of democratic governance and so diminishes the social value of punishment. In short, penal pragmatism tends to marginalise social justice in favour of self-serving instrumental goals.

Notwithstanding, the aims and values attached to the criminal trial and sentencing and the ethical principles which inform normative practice are beginning to change. Johnston, for example, argues that the current disclosure and case management regime with its emphasis on speed and efficiency has precipitated a fundamental change in the nature of the criminal trial. ⁷¹ Furthermore, Thomason suggests that the admissibility of evidence as regulated by the existing rules is gradually being undermined by evidence as negotiated and agreed between the parties. Hence, the notion of adversarialism where the parameters of the contest are defined by the parties is under threat. Thomason concludes that increasing managerialism threatens to undermine the epistemic function of the rules of evidence and procedure in the adversarial contest. ⁷²

Taking this argument one step further, the shift away from conventional adversarialism towards increased managerialism, diminishing rights and lack of individual autonomy raises broader issues about the social significance of the values that sustain the existing system of criminal trial and sentencing and its normative and ethical framework. Managerialism, particularly through centralising control, symbolises a distancing of the trial form from the kind of structure that is capable of delivering socially valued solutions to crime problems; it either marginalises or fails to engage with the crucial reality that legitimacy and penal governance demand greater social accountability. ⁷³ Fundamentally, where the values that give ‘meaning’ and ‘relevance’ to state penality begin to lose common attachment, so does the legitimate authority for depriving citizens of their liberty. ⁷⁴

The above suggests that penal ideology should promote a sense of common purpose based upon shared values in order to restore the social legitimacy of punishment. Whilst the sense of common justification may be enhanced through the empowerment and agency of both the victim and the accused, this must exist within the framework of a value system that is shared, supported and valued by the community to be effective. The moral justification for restorative intervention is key to realising this imperative, since it reaches beyond the immediate parties to the community itself. Thus, the empowerment and agency of the parties engages directly with the community in a process of social as well as personal healing. If, as argued here, that process is facilitated through a changed penal ideology grounded in shared values, the ‘truth’ sought through process and procedure should possess a focus shaped by shared purposes and values. Thus, the trial's ‘truth’ should embody a shared ‘meaning’ and ‘relevance’ it currently lacks.

Fundamentally, what is proposed seeks to establish both a communitarian and political basis for the legitimate authority of state penality. ⁷⁵ The communitarian basis for this authority would derive from the identification and establishment of a shared value system to underpin state penal ideology for reasons of the common good. Correspondingly, political legitimacy would derive from the system's commitment to the egalitarian engagement of all citizens in promoting the social value of penal intervention.

I have argued that the empowerment, autonomy and agency of key stakeholders is crucial to realising a communitarian vision for the criminal trial and sentencing. ⁷⁶ However, this can only be achieved if the values which inform the new paradigm are linked normatively through the criminal process to particular social purposes. Reflecting shared moral values in state penality is always problematic where value pluralism persists, particularly if one accepts the premise that such values should engender policies and practices that promote the common good. Within that context, reducing the distance between the moral and social reality of the trial's ‘truth’ is paramount.

Cotterrell (2002) argues that the measure of justice is ‘not conclusively given by existing law’, rather, it should by implication arise from the need for social solidarity. Hence, law should respond by promoting that solidarity. This argument is consistent with Durkheim's ideas about society's need for law to function as a mechanism that promotes social cohesion based on citizens' moral allegiance to law. However, moral allegiance demands a tangible reality for law, notwithstanding that this is often incompatible with social reality. Hence, it is important to consider the implications of law as a framework that promotes social cohesion in terms of access to justice. As argued, this is a moral question which depends upon the extent to which the values which underpin law are shared by citizens, and the reasons why.

This article has attempted to illustrate how the pivotal role played by evidential rules operating within the constraints of adversarialism and retributive ideology has served to increase the moral distance between citizen and state. A more flexible approach to the admissibility and evaluation of evidence for sentencing is advocated, one conceived within a communitarian ideology whose purpose is to promote penal interventions which enhance social justice.