Judges prepare for sentencing battle in Lords

STEPHEN WARD and

PATRICIA WYNN DAVIES

The Lord Chief Justice, Lord Taylor, was backed by the entire senior judiciary in opposing Michael Howard's plans to erode their discretion to decide criminal sentences.

And it became clear that the Home Secretary's plans would face strong opposition and likely defeat from an all-party coalition led by lawyers in the Lords.

At least five Law Lords were among many judges attending a reception given by the Prison Reform Trust on the terrace of the House of Lords on Wednesday night, giving an indication of how liberal the judiciary has now become. It was hosted by the former Lord Chief Justice Lord Lane and addressed by the Law Lord, Lord Mustill.

Serving judges, even those who have criticised Mr Howard in the past, took the view yesterday that this was such a serious constitutional crisis that they would keep their heads down and leave it to Lord Taylor. But a former Master of the Rolls, Lord Donaldson, was among the most savage critics. "This proposal to transfer responsibility for the time which a criminal spends in prison from the judges to politicians involves a constitutional change of epic proportions."

He said judges' mistakes could be put right on appeal. But that "however mistaken [judges] may be, they are not swayed by sustained campaigns either for or against particular types of crime or particular criminals".

Lord Ackner, who recently retired as a Law Lord but still sits in the House, said Mr Howard's "short-term political opportunism" had seriously provoked the judges: "It's pretty strong stuff when the Lord Chief Justice comes out within minutes against him. And he is representing the views of the judiciary as a whole. It's not a knee-jerk reaction by him.

"He's got a sufficient sensitivity to decide whether what he's doing is likely to be fully backed or not. To put up his statement immediately in such a political context means he must be sure. The imposition of any length of imprisonment, particularly if it's a substantial one, is a judicial function and is to be done by a judge and not a politician.

"If you are determining the length of a person's stay in prison, it should be done in open court after hearing evidence and argument, and not by a politician, in private, having heard neither evidence nor argument and, unlike a court, with no right of appeal."

The Lords had supported extending judicial discretion, abolishing the mandatory life sentence for murder, by almost 100 votes before it had been defeated by the whipped Commons majority, and it was unlikely to allow discretion to be eroded.

Government sources made clear yesterday that they were ready for the judicial onslaught and to turn the debate into a highly public one if need be.

"Judges cannot expect to operate without interference from politicians if they interfere in political decisions themselves," one source said.

"Politics is a hot kitchen. If the judges are stupid enough to put themselves in the firing line by opposing an absolutely central package, it will be they who are damaged, not the Government."

Lord Donaldson, page 21