Letter: Sentencing and public sentiment

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The Independent Online
Sir: Philip Esler (Letters, 25 July) asserts, as if it were self-evidently axiomatic, that the 'rule of law' must deliver penalties 'without reference to the wavering, emotional and frequently prejudiced tide of public sentiment'.

Why does he believe this? The law is not some Platonic abstraction but the codification of a nation's morality and mores. In a democracy, laws are made by the government elected to make them. The law, therefore, ought to represent and reflect public opinion before all else: it is its frequent failure to do so that has brought it into its present disrepute.

I hold no brief for the present Home Secretary, but at least he apparently believes himself to be responding to public opinion - so he ought. I have, however, an alternative suggestion for wresting sentencing from judges: let the jury do it. Something like this happens in the magistrates' courts, where (given so many guilty pleas) there is in the Retiring Room far more time spent wrangling over penalties than verdicts, even with the aid of national guidelines.

In my proposal, the judge would, after a finding of guilt, direct the jury on the general principles of sentencing, and on the options available to them under the law. The jury would then retire first to debate and then to determine (either by consensus or by vote) on a sentence. In this way, the 'rule of law' would be more truly applied by those the law exists to serve - the public at large - with, and not in spite of, all its 'wavering and emotional prejudices'.

This might offend the philosophers of jurisprudence, but would it not foster a saner and more law-abiding society?

Yours faithfully,



25 July