The new law may be sloppy, but it is not an ass

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YOU MIGHT be forgiven for thinking that the Criminal Justice Act was conceived by the foolish, drafted by the illiterate and implemented by the incompetent. Such has been the tirade directed at the Act that Kenneth Clarke, the Home Secretary, has promised 'urgent' changes, just seven months after it came into force.

The loudest voices in the criminal justice system would have you believe that this was a sensible move from a man prepared to listen to his critics. But talk to many of those operating in the system and a different picture emerges. Yes, they say, the Act has its failings, mostly the result of sloppiness, but these are small when set against the enlightened principles on which the legislation was founded.

Take, for example, the theme known as proportionality. This means that you fit the punishment to the crime, that you do not send a tramp to prison for stealing a milk bottle merely because it is the 20th time he has committed a petty offence. Equally, this means that fines should have the same impact on people of different wealth. To the driver of a Rolls-Royce earning pounds 250,000 a year, a fine of pounds 100 is scarcely noticeable: to the driver of a Morris Minor on income support, it could be crippling. This system was widely denounced as iniquitous, and the changes were welcomed.

What, then, has gone wrong? Consider this case: a motorist is caught drink-driving, an offence that warrants a penalty of 15 units on the scale of seriousness under the new system. To work out the fine, multiply the number of units with the offender's weekly disposable income.

During trials, the minimum disposable income was set at pounds 3 and the maximum at pounds 25, so that the highest penalty for a 15-unit offence was pounds 375. But at the last minute the Home Office decided to increase the levels of disposable income that could be taken into account: rather than pounds 25, the maximum was set at pounds 100. Suddenly, people on middle incomes found themselves facing fines that ran to hundreds, sometimes thousands of pounds.

This mistake has been compounded by inevitable, but high-profile, teething troubles, often brought about by defendants failing to give details of their disposable income. When this happens, magistrates must levy the heaviest punishments available. The man on income support fined pounds 1,200 for dropping a crisp packet was one such case. When he completed the forms, the penalty was reduced to pounds 48. Lawyers say it will be relatively easy to return to the figures used in the original trials, and emphasise the need for defendants to fill in the forms.

The section limiting the extent to which judges can take previous convictions into account, however, poses more problems. According to Anthony Scrivener QC, former chairman of the Bar Council, the Home Office based this section on the laudable intention of trying to keep petty offenders out of jail. 'And quite frankly, they did not trust the judges, so they tried to fetter their discretion to stop them passing custodial sentences.'

The result was two highly confusing paragraphs that prevent judges from imposing a longer sentence simply because an offender has previous convictions, while allowing them to study 'the circumstances' of those convictions. Thus, they can impose a heavier punishment on a man who has been caught drink-driving on six occasions, each after leaving his rugby club, but not on a man who has six previous drink-driving convictions, all in different circumstances.

According Andrew Ashworth, professor of law at King's College London, the Home Office was merely trying to assert a ruling that had been formulated, but then ignored, by the judiciary. This was welcome. 'If someone has got seven or eight shoplifting convictions, does that prove they are a professional shoplifter? It might be that they are compulsive or weak-willed.' The difficulty was, he said, that officials failed to specify the exceptional cases in which previous convictions should be taken into account.

However, many lawyers fear that Mr Clarke wants to do more than just modify the Act. There is a suspicion in the legal profession that he is unhappy about a piece of legislation that was born when his department was run by more liberal predecessors. These lawyers say that Mr Clarke has been keen to point out the 'absurdities' of the Act and less keen to defend its strengths, allowing the criticism to continue unabated. They say that those who conceived the legislation were not foolish, illiterate or incompetent. In their view the mistakes can be put right, without discarding the legacy.