Absolute power

John Cooper feels that the judge's power to recommend a sentence should be prescribed by legislation

When a defendant is convicted of murder, he faces a mandatory life sentence. The trial judge can then recommend to the Home Secretary, through a pronouncement in open court, the minimum term of years that he, the trial judge considers appropriate for the convicted person to serve.

The figure arrived upon by the judge is absolutely discretionary and seems to range between 10 and 35 years. The judge has no guidelines from which to work, no statute, no case law and the judicial assessment is based upon subjective feelings about the case and particularly the defendant.

If the trial judge takes an adverse view of the defendant, whether it be deserved or without foundation he can express this view in the minimum recommendation.

What is of grave concern is that there is very little a defence advocate can do about the subjective opinion of the judge. The opinions may be based on the erroneous interpretation of the evidence.

It is not unknown for a judge to misinterpret or even mishear evidence. Judges' comments on the facts of a case to the jury in summing up are sometimes slanted to one side. But the difference is the jury can accept or reject what the judge says.

As far as the recommendation goes the advocate is virtually powerless to change a judge's opinion about a case and the defendant.

This would not be so bad if there was some form of appellate system. If sentences can be appealed then so can recommendations. Not so.

The Court of Appeal has recently confirmed, in somewhat frustrated tones, that there is no appeal from a trial judge's recommendations. They have emphasised that if that is to be changed, then only Parliament can do it.

If a defence advocate is aggrieved at a judge's recommendation, his only recourse is to write personally to the Home Secretary expressing his concerns. The Home Secretary, or more realistically his department, can then alter the recommendation, if they wish.

The system as it presently stands is a hit and miss affair.

The power of a judge to recommend that a convicted defendant be incarcerated for 20 or 30 years are effectively impossible to challenge in the criminal courts. Although the recommendation is purely discretionary, prison authorities will rarely ignore it.

What we see in the judge's power of recommendation is an autocratic power in the hands of one individual who can exercise that power without any reference to guidelines or precedent. The power is absolute and subjective.

Put in these terms there is no place for such authority without a direct right of challenge or precedent. The power is absolute and subjective.

Put in these terms there is no place for such authority without a direct right of challenge in the Appeal Courts.

A judge should have the right to make a recommendation, but Parliament should legislate for a right of appeal should the defendant or indeed the Crown feel that injustice has occurred.

John Cooper is a barrister at 7 Stone Buildings.