IF CROWN court judge Barrington Black's views on sentencing are typical, then the Lord Chief Justice got it spot on when he opted to greet Michael Howard's populist sentencing reform plans with a swift counter punch.
Within an hour of unveiling proposals at the October Tory Party conference to force courts to impose longer prison terms for burglary, drug dealing, violence and sexual offences, Lord Taylor had publicly attacked them.
For Judge Black it was a welcome move. “Fortunately, we have a courageous Lord Chief Justice who is not afraid to speak out,” said the Harrow Crown Court judge, who is yet to meet a colleague who supports Howard's plans.
“To interfere with the discretion of the judge is most unfortunate – every case has a different scenario, background, and history which has to be taken into account.”
Since Lord Taylor's attempt to take the wind out of Howard's sails in October, he has been backed by an array of senior judges, most recently Lord Justice Rose, chair of the Criminal Justice Consultative Council.
Judge Black's support is a further indication that the head of the judiciary knew the mood of his troops in October.
Also welcome will be the support of the Bar Council and the Law Society, whose president Martin Mears has “every sympathy” with the judiciary.
Such is the strength of judicial opposition to the plans, it will be little short of a miracle if the Home Secretary manages to pull off a sentencing reform this side of a general election.
However, many question whether that was ever the intention. “There is no realistic prospect of it becoming law before the election, but Michael Howard will see it as a way of putting Labour on the spot,” said Paul Cavadino, chair of the Penal Affairs Consortium, which vigorously opposes the plans.
“If Labour doesn't co-operate in pushing through the measures, they will be seen as a way of getting the Conservative Party's message across that Labour is soft on crime.”
But that does not mean Howard will drop the plans if the Tories are re-elected, and it is certainly not a reason for the plans to be unopposed.
The battle for votes means it is all too easy for the Tories to shift the law and order debate to the right with little opposition from a Labour party desperate not to lose support.
This danger, coupled with resentment at the way the judiciary appears to be used as a political football, explains why the Lord Chief Justice moved so quickly to get the judiciary's views across after Howard's plans were warmly greeted at the Tory conference.
There is a very real fear that a “three strikes and you're out” sentencing policy could have disastrous repercussions on the criminal justice system.
Bar Council chair David Penry-Davey QC said the criminal justice system in some parts of the US had “almost ground to a halt” where similar policies had been employed.
Trials were going on for longer as defendants had no incentive to plead guilty and serious offenders not subject to mandatory sentences were going free because overcrowded prisons were full.
But Penry-Davey said Howard had promised to listen and said he was waiting to see whether the coming White Paper would address the Bar's concerns. He added: “The Home Secretary has strong views he is perfectly entitled to hold. The question is whether he is right.”
However, a common complaint of criminal lawyers has been that they are the victims of a series of inconsistent criminal justice reforms devised on the hoof in order to win votes.
Judge Black, who would support a move for sentences to reflect more accurately the period served in jail by offenders, said he was “astonished” at Howard's attack on the current sentencing rules given that “automatic remission and disregard of previous convictions formed the main plank of the Government's Criminal Justice Act of 1991”.
The latest plans prompted Lord Donaldson, former Master of the Rolls, to write in The Guardian: “There will be some who will wonder whether such proposed measures are dictated by an objective consideration of the public good or by electoral imperatives.”
Roger Ede, secretary of the Law Society's criminal law committee, suggested plans which would put whole sections of the community behind bars were a sign of the Government's powerlessness to solve the crime problem.