Podium: Stop this torrent of legislation

From a lecture to the Northern Circuit by the Vice-President of the Criminal Appeal Court
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The Independent Culture
TO MY mind, the last 10 years or so have not been a totally glorious decade for the impact of politics on criminal justice. On the contrary, it has been treated too often as a political battleground in which there have been no winners and many losers.

There has been a ceaseless torrent of legislation, some of it ill thought- out, which has demonstrated a regrettable dichotomy between criminal justice professionals, who have repeatedly cried "enough is enough", and politicians of whatever colour for whom "enough" has often only been a beginning.

Whereas between 1925 and 1985 there were only six Criminal Justice Acts - one every 10 years - there have been, since 1986, ten major Acts affecting criminal justice and procedures, plus four Firearms Acts, two Drug Trafficking Acts, seven attempts at regulating custody time limits, and a variety of statutory excursions down exotic byways including two Acts affecting football supporters and two dealing with dangerous dogs.

Such tumultuous reforms take time to be assimilated by everyone: in 1994, for example, no less than 104 explanatory circulars were sent out to the Probation Service. It has not needed a change of government for there to be a change in policy: the philosophy of trying to keep offenders out of prison which was at the heart of the Criminal Justice Act 1991 was abandoned in less than five years and replaced by the cry that "prison works".

Sadly, the incoming government last year found it necessary to implement those provisions of the Crime (Sentences) Act 1997, proposed by the previous government, which require a mandatory life sentence to be passed for a second serious violent or sexual offence and a mandatory minimum sentence of seven years for a third serious drug trafficking offence. Happily the proposal for a mandatory three-year sentence for repeated burglary has not been implemented.

Interestingly, the latest crime figures show that, in the 12 months prior to March this year, violent and sexual offences increased and burglary decreased. Dr David Thomas QC, the most knowledgeable and respected of all academic writers on sentencing, said this about the Crime (Sentences) Act 1997: " The practical effects of the Act will be minimal. The importance of the Act is what it symbolises ... A Home Secretary who has brought these provisions into force will find it difficult to resist pressure for mandatory sentences in other contexts."

I sincerely hope that Dr Thomas is proved wrong: mandatory sentences preclude balance, because they make it impossible for a sentence to be tailored to the circumstances of the particular offence and offender: thereby justice is denied.

I do not seek to suggest that Parliament's record in relation to criminal justice in recent years has been entirely negative. The Police and Criminal Evidence Act 1984 and the Codes of Conduct made under it have improved, almost beyond recognition, the fairness and reliability of police interviews, and hence the value of evidence obtained by this route: gone are the hours spent at trial, when I was a barrister, in "challenging the verbals".

The provisions of the Criminal Justice Act 1988 for appeals by the Attorney General in cases of unduly lenient sentences have been an important aid in helping to maintain consistency in sentencing.

The Criminal Appeal Act 1995 clarified the basis for receiving evidence and allowing appeals, and established the Criminal Cases Review Commission - a body which is both welcome and extremely important in providing an additional route for identifying unsafe convictions. The Crime and Disorder Act 1998 contains a major and, I hope, successful attempt to deal with the young offenders of today before they become the hardened criminals of tomorrow.

The lessons which I venture to hope that politicians may have learned from the experience of the last 10 or 15 years in relation to criminal justice are threefold: first, too much legislation is a more likely cause of injustice than too little, because changes take time to be understood by the public and absorbed and implemented by criminal justice professionals; secondly, slogans and soundbites are an inadequate substitute for reasoned argument based on careful research; thirdly, professionals, who have practical experience not necessarily enjoyed by politicians and civil servants, are able and willing to make a constructive contribution to the development of fair and effective procedures.

The current omens, in relation to the second and third of these, if not the first, are propitious.

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