Judges should judge

Share
Related Topics
"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.

React Now

  • Get to the point
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
iJobs Job Widget
iJobs General

Ashdown Group: Senior Accounts Assistant - Accounts Payable - St. Albans

£26000 - £28000 per annum + benefits : Ashdown Group: Senior Accounts Assistan...

Ashdown Group: Treasury Assistant - Accounts Assistant - London, Old Street

£24000 - £26000 per annum + benefits : Ashdown Group: A highly successful, glo...

Recruitment Genius: Installation and Service / Security Engineer

£22000 - £40000 per annum: Recruitment Genius: This company is part of a Group...

Recruitment Genius: Service Charge Accounts Assistant

£16000 - £18000 per annum: Recruitment Genius: Are you a a young, dynamic pers...

Day In a Page

Read Next
 

Errors & Omissions: Outgunned by a lack of military knowledge

Guy Keleny
Ukip leader Nigel Farage in Tiny Tim’s tea shop while canvassing in Rochester this week  

General Election 2015: What on earth happened to Ukip?

Matthew Norman
General Election 2015: Chuka Umunna on the benefits of immigration, humility – and his leader Ed Miliband

Chuka Umunna: A virus of racism runs through Ukip

The shadow business secretary on the benefits of immigration, humility – and his leader Ed Miliband
Yemen crisis: This exotic war will soon become Europe's problem

Yemen's exotic war will soon affect Europe

Terrorism and boatloads of desperate migrants will be the outcome of the Saudi air campaign, says Patrick Cockburn
Marginal Streets project aims to document voters in the run-up to the General Election

Marginal Streets project documents voters

Independent photographers Joseph Fox and Orlando Gili are uploading two portraits of constituents to their website for each day of the campaign
Game of Thrones: Visit the real-life kingdom of Westeros to see where violent history ends and telly tourism begins

The real-life kingdom of Westeros

Is there something a little uncomfortable about Game of Thrones shooting in Northern Ireland?
How to survive a social-media mauling, by the tough women of Twitter

How to survive a Twitter mauling

Mary Beard, Caroline Criado-Perez, Louise Mensch, Bunny La Roche and Courtney Barrasford reveal how to trounce the trolls
Gallipoli centenary: At dawn, the young remember the young who perished in one of the First World War's bloodiest battles

At dawn, the young remember the young

A century ago, soldiers of the Empire – many no more than boys – spilt on to Gallipoli’s beaches. On this 100th Anzac Day, there are personal, poetic tributes to their sacrifice
Dissent is slowly building against the billions spent on presidential campaigns – even among politicians themselves

Follow the money as never before

Dissent is slowly building against the billions spent on presidential campaigns – even among politicians themselves, reports Rupert Cornwell
Samuel West interview: The actor and director on austerity, unionisation, and not mentioning his famous parents

Samuel West interview

The actor and director on austerity, unionisation, and not mentioning his famous parents
General Election 2015: Imagine if the leading political parties were fashion labels

Imagine if the leading political parties were fashion labels

Fashion editor, Alexander Fury, on what the leaders' appearances tell us about them
Phumzile Mlambo-Ngcuka: Home can be the unsafest place for women

Phumzile Mlambo-Ngcuka: Home can be the unsafest place for women

The architect of the HeForShe movement and head of UN Women on the world's failure to combat domestic violence
Public relations as 'art'? Surely not

Confessions of a former PR man

The 'art' of public relations is being celebrated by the V&A museum, triggering some happy memories for DJ Taylor
Bill Granger recipes: Our chef succumbs to his sugar cravings with super-luxurious sweet treats

Bill Granger's luxurious sweet treats

Our chef loves to stop for 30 minutes to catch up on the day's gossip, while nibbling on something sweet
London Marathon 2015: Paula Radcliffe and the mother of all goodbyes

The mother of all goodbyes

Paula Radcliffe's farewell to the London Marathon will be a family affair
Everton vs Manchester United: Steven Naismith demands 'better' if Toffees are to upset the odds against United

Steven Naismith: 'We know we must do better'

The Everton forward explains the reasons behind club's decline this season
Arsenal vs Chelsea: Praise to Arsene Wenger for having the courage of his convictions

Michael Calvin's Last Word

Praise to Wenger for having the courage of his convictions