The case against emotion

Stephen Irwin is not afraid of a fight. So could he be the man to thwart the Government's plans to reform the legal system, asks Robert Verkaik

The seamless transfer of power to Stephen Irwin QC, the newly installed chairman of the Bar Council, from his predecessor, Matthias Kelly QC, spells more trouble for David Blunkett and his plans for a shake-up of the criminal-justice system. Irwin is already pressing home attacks begun by Kelly, whose tenure was marked by his defence of the roles of juries and judges.

The Home Secretary's recent intervention in the "life means life" debate has prompted Irwin to remind ministers that sentencing must not be treated as a "political football".

Irwin, a Northern Irish barrister who began his career in Belfast, urges politicians to let judges get on with the job of setting fair sentences in murder cases. "I understand why people are angry about this issue and I have every sympathy with them. But if you allow emotions to carry over to how you handle the justice system you're bound to get the wrong kind of outcome."

Many will read this as a dig at Blunkett, who started the New Year with a speech calculated to create a hostile environment for judges when they are imposing sentences in difficult cases. Speaking on the eve of the introduction of new rules for the sentencing of murderers, the Home Secretary deliberately raised the spectre of capital punishment: "The death penalty for murder was abolished in faith that the criminal-justice system would continue to treat the offence with the utmost gravity," said Blunkett. In response to this, Irwin argues: "Sentencing should be the subject of expert input and should not be turned into a political football."

Irwin, a former criminal barrister who now specialises in medico-legal cases, makes reference to now-notorious miscarriages of justice. It is important to remember, he says, how badly wrong the public and the politicians got it in the cases of the Birmingham Six and Guildford Four. "The Birmingham sentencing was part of the outrage people felt. But all it shows is how very, very bad it is to allow emotions to dominate policies in the crime and punishment arena. You don't want it to be populist... there's a temptation to make political capital out of this. We understand the emotions involved and that's why I think the Sentencing Guidelines Council should be left to do the job and then the judges can be trusted to match the punishment with the crime."

Irwin says politicians, often aided and abetted by the press, stoke up public feeling in sensational cases like the recent trial and sentencing of Ian Huntley and Maxine Carr. But, he says, terrorists and cold-blooded killers are not typical of the majority of murder cases, even though they are the ones given the highest public profile. "Most murders are GBHs gone wrong. Most killers don't want to kill and don't intend to kill. One mustn't forget that many murders take place in the home in cases of domestic violence."

Irwin's year as leader of 14,000 barristers in England and Wales promises to be an eventful one. The Government's refusal to back down over the fixing of legal-aid rates for family and criminal barristers could end up in court, in a judicial review test case over the Lord Chancellor's policy.

Irwin still talks of "betrayal" at the Government's failure to rectify cuts of what the Bar claims is as much as 20 per cent of publicly funded criminal and family work, following the introduction of fixed, graduated- fee schemes. Behind-the-scenes negotiations between the two sides have reached a sensitive stage and Irwin declines to be drawn on possible legal action. "All I can say is that we are considering many options," he says.

On other issues he is much more candid. He is eloquent in putting the case for retaining the rank of QC and has been vocal in arguing for a pause in the Government's headlong rush to abolish the office of Lord Chancellor. In his inaugural speech to the newly elected 100-strong Bar Council, which met in central London last month, he asked: "Is there really a need for a constitutional settlement, which may last for very many years, to be pushed through in one parliamentary session? A constitution is crystallised power. Rare periods of fluidity are followed by very long periods of solidity. We must surely take time over this."

Lord Falconer has delayed publication of a constitution bill by three months but does not intend to let his reform programme slip much further. He has made it clear that a bill published in the spring would allow plenty of time for proper public and parliamentary scrutiny.

Not so, says Irwin, who promises to continue to call ministers to account on this and other controversial and important issues. No wonder the Bar is quickly gaining a reputation as the Government's "unofficial opposition".