Who's to judge?
19 May 2003
After only a brief respite David Blunkett has returned to a favourite pastime that of judge-baiting with the recent publication of his new sentencing principles. Once again the Home Secretary reminded the judiciary of its place in the greater scheme of things. Im putting the situation back to what most sensible people thought it should be, which is that Parliament lays down the rules, and the judges apply them, he said.
The power to say life means life for notorious killers such as the Moors Murderers, Peter Sutcliffe and Rosemary West has become a political obsession for past Home Office bosses, with both Michael Howard and Jack Straw insisting that Myra Hindley remained behind bars. This time the present incumbent has proposed the biggest reforms of murder laws for 40 years, including a fixed system with minimum whole life sentences for the most horrendous killings.
The charge against the judges this time is a lack of consistency in sentencing. Wheres the evidence? asks leading human rights lawyer and head of 17 Bedford Row Allan Levy QC. I dont recognise that as a problem, and its hard to argue that the system isnt working perfectly properly. After all, Myra Hindley served 36 years, and all the other notorious cases have now been dealt with.
As it goes, this was a more temperate attack on the bench from Blunkett than his last fit of pique directed at Mr Justice Collins over his ruling on the plight of six asylum seekers earlier in the year, which seriously undermined the Governments asylum policy. In that case, he declared himself fed up with judges overturning Government policy. If public policy can be always overridden by individual challenge through the courts, then democracy itself is under threat, he complained at one point.
Nevertheless, this latest episode has reignited the stand-off between our elected representatives and the bench. A leap in the dark is how a spokesman for the Bar Council described the recent proposals. I think hes trying to institutionalise the grip of the executive around the neck of the judiciary, and thats not healthy for the long-term constitutional arrangements of the country, he continued. By legislative creep, we will gradually erode the separation of powers, which is something that for hundreds of years has been seen as a strength in our democracy.
Beneath the brouhaha about the separation of powers, though, there are concrete proposals that have been well received by many outside the legal profession. According to the Government, the new sentencing principles mean that in the most serious crimes, such as the sexual, sadistic murder of children or terrorist murder, life should mean life, as opposed to the current practice of a 20-year minimum jail term. For other serious crimes, such as the murder of a police officer in the course of duty or a racially-motivated murder, a minimum term of 30 years imprisonment should be passed, an increase of 10 years on the current sentencing practice. For other murders and for juveniles the starting point would be 15 years. At present, judges pass a mandatory life sentence for murder and the Home Secretary sets the tariff the minimum that must be served before the parole board will consider release. The new system proposes principles as distinct from guidelines. Judges who depart from the principles would have to explain their reasons in open court.
Theres a bigger picture here, which is that, unfortunately, the public can be very misinformed about sentencing, reckons Peter Rook QC, chair of the Criminal Bar Association. According to the Home Offices own figures, the public perception that courts are soft on criminals is misplaced and there is a higher proportion of criminals being sent to jail today than at any time since the 1950s. The length of the average sentence has also increased to 22 months now compared with 15 then. Yet more than half of those questioned in one survey reckoned that average sentences were a third shorter than they actually are.
I feel that we should entrust our experienced judges whove been trying these serious cases in the past, and theyre best placed to set the tariff when it comes to it, argues Rook, adding that there are great dangers in compartmentalising crime and taking away judicial discretion.
Levy doubts whether the proposals would comply with the Human Rights Act (HRA). However terrible the crimes are, sentences have to be reviewed after a period of years, he comments. Thats a very strong principle of human rights law coming from the European Court [of Justice], and to simply throw the keys away is not a proper answer.
Both Rook and Levy take issue with the Home Secretarys style of attack. He uses confrontational language, which is not always appropriate, and tends to raise the temperature and ruffles feathers, Levy says. But obviously he wants very wide media coverage and so he puts things in this provocative style.
The new principles are strikingly at odds with Lord Woolfs own guidelines, which were published only last year. The Lord Chief Justice issued a practice direction based on the advice of a Home Office-appointed panel, setting as a starting point 15 or 16 years for the most serious murders, including contract killings, killings during the course of a burglary, if a victim is targeted because of race, religion or sexual orientation, or for multiple murders. Blunkett has trumped him at 30 years for such serious crimes. Lord Woolf also said that, in exceptionally grave cases, there should be no minimum period set, allowing for the prospect of an eventual review of the sentence and the possibility of release.
While Lord Woolf has yet to comment, other judges have gone on the record to express their frustration with the Home Secretary. He wants to tell the judges how to sentence people and it wont work, the former High Court judge Sir Michael Davies bluntly told The Independent. In a letter to The Times, Lord Ackner, the retired Law Lord, warned that the Home Secretarys attempts to bludgeon judges was doomed to failure, as they would retain the last word in sentencing to impose the sentence that they thought was just. Lord Ackner had previously predicted war between the judiciary and the Home Secretary when a five-year mandatory minimum sentence for gun possession was mooted. This time around, he argues that if the Home Office stipulates that a murder should carry 30 years and the judges impose 10, what could the Home Office do about it anyway other than put pressure on the Attorney-General to appeal to the Court of Appeal, which would back the judge anyway? The Law Lord also predicts that judges will ignore the new guidelines. They can, and I think they should, and they would, he added.
Not surprisingly, penal reform groups are deeply cynical about political tough talking that will inevitably cause an explosion in the prison population. Claire McCarthy, policy officer at the Howard League, a pressure group that aims to reduce the number of people behind bars, reckons the Home Secretarys proposals could lead to a doubling in the number of lifers in the prison system, which presently stands at around 4,800 in England and Wales. Most lifers now spend between eight and 14 years in prison, and if the starting point for lifers was then increased to 15 years, it could double the lifer population within a few years.
The group accuses the Government of political posturing. This really is legislating by press release, says McCarthy. Its simply designed to grab the headlines and its not well thought out; nor is it well reasoned and it contains serious flaws.
For the most serious cases, McCarthy argues that there are already adequate powers in place to protect the public, so that even if a killer has served their tariff the parole board has the right to deny parole and keep that person in prison indefinitely if they are a threat. More generally, the Howard League takes issue with this rigid approach to sentencing. As McCarthy says, why should killing a policeman automatically lead to a 30-year sentence whereas the murder of a nurse, teacher or fireman does not?
Blunkett flagged up his sentencing framework in the wake of last years ruling by the House of Lords that declared tariffs incompatible with his political role. The judgment came in the case of double murderer Anthony Anderson, whose 15-year sentence, recommended by the trial judge after his 1988 conviction, was increased to 20 years by the then Home Secretary.
Ironically, that judgment came within days of the death of Myra Hindley, who had been pinning her hopes of release on the Lords judgment. According to Janet Arkinstall, solicitor and criminal justice policy director at pressure group Justice, it was decided that a sentence was part of the trial process, requiring a hearing by an independent and impartial tribunal under Article 6 of the European Convention on Human Rights, as opposed to the say-so of the Home Secretary. She continues: Obviously, Parliament has the sovereign power to decide what is the sentence for a particular crime, and what the maximum sentence is. But we have great concerns about the Home Secretary and Parliament becoming involved in the setting of tariffs and the seeming increases he is proposing.
As to whether the new arrangements can be challenged under the HRA, according to Arkinstall it depends on the discretion that will be allowed for the trial judge to depart from the principles. John Dickinson, a partner at Sheffield firm Irwin Mitchell who acted for Anderson, argued at the time of the ruling: If the Home Office is setting out a general series of principles akin to the Lord Chief Justices guidance to judges, that is quite unexceptionable. If theyre saying theres to be an arbitrary sentence, and the circumstances of the offence and the background of the offender are to be entirely disregarded, then it could be challenged as inconsistent with the human rights convention.
Lawyers complain of a deliberate confusion about the perceived inconsistencies of judges. There is a world of difference between the treatment of lifers such as Anderson and the problems further down the system in the Magistrates Courts. However, for the convenience of this political argument, the accusation of inconsistency is directed to all quarters of the criminal justice system.
In the immediate aftermath of the controversy over the murder cases, the Home Secretary announced the formation of the Sentencing Guidelines Council to set guidelines for all offences. The body will comprise victims of crime and representatives drawn from the police, the probation and prison services and lawyers. According to one press report, this will effectively cull the powers of the Sentencing Advisory Panel, which upset the tabloids last month when it recommended muggers be given community sentences and not jail sentences. The panel will now report to the new council as opposed to the Court of Appeal.
There is also new research on hand to show the results of judicial vagaries which mean, for example, that housebreakers resident in Teesside were almost half as likely as those in Leeds to face immediate custody. Similar statistics were revealed by the Home Secretary at the Justices Clerks Society Conference last May. The Magistrates Association countered that such statistics did not necessarily reflect inconsistency, but rather a variation in the sentencing pattern between one particular bench and another, which to a certain extent was desirable so long as it could be justified.
Rodney Warren, chair of the Criminal Law Solicitors Association, complains that ministers are trying to turn the guidelines into a tariff and take away the flexibility of sentencing in the Magistrates Courts. Some years ago there were huge inconsistencies between one area and another; but these days, because of the Home Offices thirst for statistics-gathering, were now pretty clear on how wide these discrepancies are and actually that gap has narrowed considerably, he says. One reason for this is the publication of the Magistrates Association guidelines on sentencing, which are followed in some courts as if they had the force of law.
I think the difficulty that the Home Office has is that its announcing a new initiative before its even finished unwrapping the last one, says Warren. The real danger is that things arent going to work cohesively.
We should have faith in our judges, concludes Rook at the Criminal Bar Association. I dont like seeing their powers being eroded. Theyre there to prevent abuse by the executive, and I think the danger is that it all becomes too populist and you end up with MPs on the Sentencing Guidelines Council.