In an outspoken attack on the 1991 Criminal Justice Act, the Lord Chief Justice, Lord Taylor, said judges had been forced into 'an ill-fitting strait- jacket' restricting the sentences they could impose. They should have wider powers to impose custody sentences for youngsters.
He warned of experts and bureaucrats becoming so removed from public opinion that victims might take the law into their own hands.
Defending judges against ill-informed public criticism, Lord Taylor also questioned whether murder should still carry a mandatory life sentence. That resulted in 'injustice' - making no distinction between the calculating poisoner and the battered wife at the end of her tether.
Lord Taylor said Scottish lawyers were fortunate in having little statutory criminal legislation and had been spared the 1991 Criminal Justice Act, which does not apply in Scotland. He told the annual conference of the Law Society of Scotland that he hoped sections of the Act might be reviewed and 'sanity' restored.
'I believe the fundamental error underlying the Act is a misconceived notion that sentencing should be programmed so as to restrict the discretion of the sentencing judge.
'The laudable desire to reduce and confine custodial sentencing to cases where it is really necessary has led to restrictive provisions forcing the judge into an ill-fitting strait-jacket.'
He said courts should be concerned with deciding what sentence to impose rather than what penalty they were allowed to impose. It was also counterproductive to send young offenders to institutions to rub shoulders with hardened criminals.
'It is of prime importance that sentences passed should not be so far out of touch with the expectation of ordinary law-abiding citizens as to create discontent.
'However forward-thinking the penologists, criminologists and bureaucrats in government departments may be, their views should not be allowed to prevail so as to impose a sentencing regime which is incomprehensible or unacceptable to right- thinking people generally. If that happens, there could be a real risk of aggrieved parties taking the law into their own hands.'
He said it might be argued that without statutory sentencing policies judges might be inconsistent. But existing machinery, including the Court of Appeal, allowed the system to work.
Judges were attacked in some cases for either for too light or too severe sentences when this criticism was ill- informed. 'I do not for a moment doubt the right and duty of the media to comment on sentences and criticise judges. It is healthy that they should do so,' Lord Taylor said. 'But I wish they would aim at scrupulous accuracy regarding the facts and moderation in their comments.'
He said there had been cases of 'wholly disproportionate' attacks on judges when a full transcript of what they had said revealed the criticism to be excessive and unfair.Reuse content