Leading Article: Mr Howard's lesson in justice

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The Independent Online
Michael Howard's knuckles must be getting sore. He had them rapped again yesterday by some judges. This time it was the European Court of Human Rights that delivered the punishment. Britain was one of the first countries to sign the European Convention on Human Rights in 1950. We should abide by it. If the British government would only incorporate the contents of the Convention into British law, the knuckle-rapping could be done here, by British judges, rather than in Strasbourg.

The court decided that the Home Secretary's power to detain young criminals "at Her Majesty's Pleasure" long after their original recommended sentence has been served, without any independent appeal, was a breach of their human rights. With the murder by young boys of two-year-old Jamie Bulger still fresh in the nation's memory, the decision will provoke an emotional reaction. But it is exactly because voters and politicians are so passionate and so confused on the subject of child killers that the European Court's ruling is welcome.

The court's decision will not entirely remove politicians from sentencing. The length of time served by killers under the age of 18 depends on two things: first, the recommended minimum sentence (the so-called "tariff"), and second, how much of a danger to the public they are judged to be once that minimum sentence has been served. At present the Home Secretary can decide both. Yesterday's judgment challenged his right to decide whether young criminals remain a danger to the public; it did not question his role in setting the tariff in the first place.

This is a step in the right direction. As the court pointed out, young criminals who have completed their tariff should be allowed to question the legality of their further detention in a court. At the moment, their futures are decided in secret by the Parole Body and the Home Secretary without any legal representation for the young person and no explanation of the final decision. This secretive form of justice is unacceptable; the process should be made more open and transparent.

Children who kill evoke complicated emotions in all of us. Many regard child killers as especially evil and conclude that they should be dealt with by especially tough sentencing. However, it is equally possible that children who commit crimes are among the most redeemable and reformable of criminals. Someone who commits a heinous crime at the age of 11 may have undergone a significant personality change by the time he is 21.

However, a politician reviewing whether or not to let out a child killer may well be influenced by the popular mood, itself susceptible to the persuasion of newspaper headline writers. It is because the issue of child killers excites such passion that it needs to be removed from politics. At the end of a sentence there should be a review, but one carried out by a judge, sitting in a court, hearing evidence.

The European Court's decision will push us in that direction, but it does not go far enough. Politicians should not be involved in setting the tariffs in the first place. The appropriate sentence to punish a crime should depend on the facts of the case as decided by the judge, rather than the personality of the current incumbent at the Home Office.