THE Home Secretary will not, I think, be very troubled by Sunday's protest march in London against his Criminal Justice Bill. A small violent element among the 35,000 marchers gives Michael Howard his excuse. It is not proper, he can argue, to submit to mob rule.
But Mr Howard had already, last Friday, submitted to mob rule - or, anyway, mob opinion. In January the trial judge recommended that Jon Venables and Robert Thompson, the 10-year-old killers of Jamie Bulger, should serve a sentence of at least eight years. The Lord Chief Justice overruled him with 10. But then the Home Secretary yelled '15]', trumping them all like some crazed card player trying to impress his moll. Mr Howard had, he explained, been influenced by 'public opinion', by which he seemed to mean a 500,000-signature petition organised by the parents of Jamie Bulger.
The Bulgers' lawyer also passed on a 'big thank you' to those 21,000 readers of the Sun newspaper who had sent a printed coupon to the Home Secretary demanding life imprisonment for the two young killers. This was not, though, the day's only victory for Wapping justice. Under the headline 'CUFF COP SAYS: SUN SAVED ME', PC Steve Guscott - the Minehead bobby cleared by a police disciplinary hearing after hitting a young suspect - attributed the survival of his career to the 130,000 Sun readers who dialled a telephone hotline to support him. Already in charge of Parliament - IT WAS THE SUN WOT WON IT, the paper famously boasted on the morning after the 1992 election - the tabloid seems to be claiming control of the criminal justice system. It's the Sun wot runs it]
Taken together with Sunday's march, these cases raise the intriguing question of the extent to which justice should be a reflection of mass sentiment, or public will. Why should mob opinion be more respectable than mob rule?
In recommending sentences of eight and 10 years respectively, both the trial judge and the Lord Chief Justice seem to have been sensitive to the rehabilitative prospects of Venables and Thompson. Indeed, in raising the possible re-entry of the boys into society at 18 - before the full education in crime that adult jails might well provide - the trial judge might be thought to have made a very specific point. In adding two years to this minimum sentence, the Lord Chief Justice was maintaining the importance of rehabilitation, while doffing his wig half an inch to public will. Mr Howard's criteria are quite different. Making a priority of revenge and punishment, he pays less attention to psychiatric reports than reports in the Sun, and shows less interest in judicial opinion than in the clapometer of Tory conferences.
To the question of what these boys might be like at 25 - two of the few human beings in history to have been more or less entirely raised in jail - this lobby has no answer. For it envisages, as the Bulgers' petition and the Sun coupon specified, that Venables and Thompson will never be released. Yet that is not, surely, a plausible outcome, and so Mr Howard's self-serving short-term sternness is irresponsible.
Of course, it will be for the 'home secretary of the day' to decide, in 15 years' time, the fate of Venables and Thompson. These are soothing words - intended to suggest the primacy of office over personality, to conjure up a picture of some future Solomon coolly assessing the merits of this case - but the phrase is a trick. What if the 'home secretary of the day' turns out to be a Michael Howard of the day: a political rat in a sack, apparently plotting his survival by pandering to the cruellest common denominator?
Columnists supporting a shorter term for the murderers of Jamie Bulger have generally received letters, particularly from Liverpool, wishing terrors on our own children. At its mildest, the burden of this correspondence is: 'If it had been your own child, you would want these people dead . . .'
Well, perhaps I would, although many of us would pray to be able to behave instead like, say, Jayne Zito, who campaigns for better treatment of schizophrenics such as the one who stabbed her husband on a London Tube platform. Perhaps we accept too easily that revenge - the lynch mob outside the court, the petition for inclemency - is the inevitable and respectable response to such events. Yet even if a thirst for catastrophic retaliation is the normal reaction, I would hope that - were I ever to find myself in the situation of the Bulgers - I would not be allowed to rearrange the criminal justice system into the shape of my own pain.
Perhaps the wisest thing said on this subject by a modern politician came from Mario Cuomo, the great American orator and Governor of New York. Like other Democrats who opposed the death penalty, he tended to be asked how he would feel if his own wife or children were murdered. (Michael Dukakis failed in his 1988 presidential bid partly because of what was regarded as a woolly reply to such a hypothesis.) Cuomo's answer was that he would grab his baseball bat and would want to beat the murderer to a pulp, but he prayed that someone would take the bat from his hand, because no criminal justice system could be based on revenge and the emotions of the bereaved.
While on the subject of America, it should be mentioned that there we see a legal system that has responded to 'public opinion'. The prosecution in state cases is symbolically personified as 'The People'. Prosecutors and judges are elected. The families of victims may make a statement to the court before sentencing. The result of this is virtually to guarantee the availability of the death penalty, and to create a criminal justice system based almost wholly on revenge rather than rehabilitation. It can be argued that this is properly democratic, for revenge is what the American people largely seek. But our Mr Howard, as it happens, is an opponent of the death penalty, and presumably feels no guilt about being out of step with the general public on this matter. In law, he should be aware, playing to the gallery usually soon means playing to the gallows.
My only comfort is that Mr Howard's submission to the Sun on legal matters has done him little good. Rather satisfyingly, he has stumbled on a political paradox, which is that it is apparently possible to pander shamelessly to public prejudice and yet remain epically unpopular. If the Home Secretary was really interested in giving the people what they want, he would resign; but this, we must assume, would be taking rule by the perceived mood of the majority too far.
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