Judges should judge

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"Judicial independence," observed one speaker in the House of Lords debate on crime and sentencing last week, "is not some minor attribute of a civil society. It is a necessary condition of constitutional government under the rule of law." That debate focused on the extent to which Michael Howard, the Home Secretary, proposes to usurp the role of judges and the courts by having Parliament set minimum sentences for certain offences and mandatory life sentences for others. It was a remarkable debate because, out of 21 speakers, only three made a case for Mr Howard and only five of his critics came from the Opposition benches. The critics included no fewer than five former Tory Home Office ministers, as well as Lord Taylor, the retiring Lord Chief Justice. When such an impressive consensus is ranged against his proposals, any politician should reconsider. It is most unlikely that Mr Howard will do so. Not because he does not understand what is at stake - the Home Secretary is, after all, a QC himself. But he prefers the rule of the mob to the rule of law.

Judges, it is true, do not always know best; but it is certain that politicians do not know any better. A glance at the record of this government alone illustrates that point. Everybody is swayed by prevailing fashion; politicians are swayed more vigorously than most by the need to flash their thighs on the party conference catwalk. Remember unit fines - the idea that court penalties should be calibrated according to offenders' incomes? That policy collapsed within months, as everybody in the legal profession warned that it would. Mr Howard's new sentencing policies are in direct contradiction to policies embodied in the Criminal Justice Act 1991. Indeed, the Home Secretary rests his case that judges are handing down over-lenient sentences partly on figures gleaned from the period immediately after the Act, when the judiciary was prevented by statute from taking previous convictions into account.

To repeat: judges can, and often do, get it wrong. Leading restricted social lives, they have always been remote from public concerns. But this is the point of judges. They are supposed to stand above transient panics and nine-day outrages. If public opinion was a certain guide to justice, we could leave criminals to kangaroo courts and lynch parties.

Public opinion, in any case, comes in different guises. Knowing nothing of individual circumstances, except what it gets from selective newspaper reports, the opinion of the saloon bar wants no mercy for criminals. Opinion on a jury, no less representative of the public, is often more moderate. A survey of some 10,000 jurors asked for their opinions on sentences passed at the end of trials in which they had taken part: a quarter thought the sentence too severe, a quarter too lenient, and the rest thought it about right. There is no evidence here of a chasm between judges and people, crying out for Mr Howard to bridge it. Indeed, one of the central arguments against the proposals for minimum sentences and mandatory life sentences is that, in some cases, jurors may be more reluctant to convict. It is quite certain that the effect will be to reduce guilty pleas, and that this will clog the courts as it has done in America.

The truth is that criminals and the crimes they commit are infinitely varied and that no sensible justice can be dispensed according to a series of fixed tariffs. One man may break into and loot pensioners' homes, another may climb through open windows to steal bottles of milk. Both may be charged with burglary; both, under Mr Howard's proposals, would be subject to the same minimum sentence after a third offence. Is a young boy who is convicted of unlawful sexual intercourse with his under-age girlfriend to be given a mandatory life sentence if, 10 years later, he is involved in a pub brawl? Under Mr Howard's proposals, this could quite possibly happen. Could a teenager who repeatedly hands out drugs to her friends receive the same sentence as a wholesale drug dealer? This, too, would be possible.

Punishment has to fit not just the crime but the individual. That is why we have judges and, given that juries are to decide guilt, it is hard to know what a judge is supposed to judge, if it is not the appropriate sentence. No doubt this leads to anomalies but Mr Howard's proposals will merely lead to a different set of anomalies.

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