Alex Carlile: Leave the judges alone, Dr Reid

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The Independent Online

The Recorder of Cardiff is the senior criminal judge based in Wales. Long ago he and I appeared in a Welsh trial all about false teeth. He took it more seriously than others, though I recall him playing bowls with the rest of us over that Swansea summer. Though he possesses engaging wit proportional to his glowing physique, John Griffith Williams QC is a serious man.

Those who have enjoyed cases with him, some at the worst level of crime, recall his attention to detail and pedantic concern that the rules and standards demanded of criminal courts by the state should be met. Soon after his becoming a judge, his appointment as a member of the Court of Appeal in criminal matters surprised no one. The Recorder is not one of those judges (there are some) whom one would expect to clash with politicians or the media.

When he sentenced the sex offender Craig Sweeney, the last thing the Recorder should have expected was a storm of criticism about the sentence. Within hours, the Home Secretary weighed in. The Prime Minister was reported as supporting what we were to take as the Home Secretary's right to attack judgment given in a Crown Court. It was bound to be one-sided, for judges do not reply to press releases issued by ministers. Happily, Lord Goldsmith QC, the Attorney General, made his displeasure known: the Home Secretary's comments would have been seen by many as placing unwarranted pressure on the Attorney in deciding in his entirely non-political role whether to seek a review of Sweeney's sentence as unduly lenient. Later, Lord Falconer, the Lord Chancellor, rightly showed a yellow card to Dr Reid for straying offside into the penalty area of judicial independence.

In fact and law, the Recorder was correct and accurate. More to the point, he followed the very sentencing system imposed upon him by Parliament at the behest of the self-same government now criticising the results of his decision. The case provides a good example of the failure by some ministers to understand the fragile importance of their role in ensuring judicial independence. Another recent example is criticism of the decision (now subject to appeal) of Mr Justice Sullivan in a recent case about control orders imposed on suspected terrorists.

Ministers, too, are entitled to free speech, even if sometimes of a self-contradictory, collective kind. By this I do not mean ill-informed, misleading, inaccurate comments like Vera Baird QC's extraordinarily clumsy remarks on Radio 4's Any Questions on Friday. Nobody can complain sensibly if the Government expresses disappointment at the result of a court case, and a determination to appeal. Even a rationally expressed will to change the law as a consequence is permissible. However, knee-jerk reactions to ill-informed campaigns by red-top newspapers do nothing but damage to what marks the UK out from almost all comparable nations - the fiercest separation of powers, in which the judiciary stands so clear from the executive through the instruments of the courts as to protect the citizen against arbitrary administrative action.

The Sweeney case is a bad precedent for Dr Reid's proposed blueprint for changes to sentencing law. The Recorder of Cardiff passed the toughest sentence he could. It seems lost to many that the depraved and degenerate Mr Sweeney was sentenced to imprisonment for life. He cannot be released until the Parole Board, acting rationally and judicially, decides it is appropriate. He may remain in prison for the rest of his life. If released, he will remain on licence also for the rest of his life - a licence system in crying need of proper resourcing (by government, not judges) to track the lives of the licensed after release.

In time gone by, the system was far from transparent. After a life sentence, the Home Secretary was the arbiter of release in a largely unaccountable political exercise. Rules introduced by the present government into statutory form as recently as 2003 require the judge to give credit for a guilty plea. The removal of this practice would be a disaster for the Crown Court. Without reasonable discounts for guilty pleas, I and my learned friends will be the beneficiaries of more contested trials, with the consequent clogging up of the system. Those we defend are real people, some very intelligent. There has to be something for them in a plea of guilty - otherwise they might as well tell lies and take their chance.

More important, the removal of substantial discounts for guilty pleas would be a disaster for victims. For more not-guilty pleas would mean more victims having to relive, and be cross-examined in public about, their most awful experiences.

As required by the Government, Mr Sweeney was told what sentence the judge would have passed had he not been passing a life sentence. This was 18 years. Having given the normal credit for the guilty plea, again as required by the Government, the Recorder told Sweeney that parole could not be considered at all until at least one-half of the residual 12 years had been served. Parole for all sentences begins after one-half of the net punishment term.

We have been promised that, in his "blueprint" for reform, Dr Reid will address the issues thrown up by Sweeney and other cases; and that attention will be given to the critically high level of the prison population. As to the first of these issues, perhaps the most-needed reform is that judges should pass the sentence they intend to be served, without the need to tell defendants at the time of sentencing about the parole system: that could be done administratively. Thus the Recorder might simply have told Sweeney he was passing a life sentence, and intended him to serve at least 10 years.

As to the prison population, that will only be solved sensibly by using imprisonment less, but using it better, and mainly for the dangerous, persistent or very serious criminal.

Most important is the wider lesson of the case. Ministers should respect the independence of judges. They should talk to judges more, not to influence them but in the cause of mutual understanding. And, to borrow from Edmund Burke, ministers should be pillars of what is right, rather than mere weathercocks of tabloid opinion.

Alex Carlile is a senior QC and Head of Chambers at 9-12 Bell Yard, London. He is a Liberal Democrat peer, and a part-time judge

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