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When the Coalition Government was formed, it was inevitable that Ken Clarke would have to be included in it. As a Tory ‘Big Dog’ over many years, or as some might call him, a Tory ‘Old Dog’, it was better to have him inside the tent pissing out than outside pissing in. Theresa May, the embattled Home Secretary, bears testament to that.
Ken came in with a brief to cut public spending, and the two obvious candidates were legal aid and the groaning prison population. But the devil is in the detail. Legal aid is being cut, but court costs are shooting up as litigants in person are trying their hand at advocacy, and judges are bending over backwards to humour them. This means that the backlog of cases, already too long by half, will increase year on year as relatively simple cases become more and more protracted. I have in mind one of my own cases, originally listed for one day, and now into its fourth day with no end in sight.
The prison population is now greater than ever, with no signs of abating, so Ken has come up with a cunning new plan. He will abolish the ill thought out indeterminate sentence of imprisonment for public protection, but as a quid pro quo to humour the Tory backwoodsmen and their ‘hanging is too good for them’ mantra, he will introduce a ‘two strikes and you’re out’ sentence for violent and sexual offenders. They will receive an automatic life sentence, and presumably, as before, the judge will set the tariff. Although not clear, I assume that with the abolition of IPPs, these ‘life’ sentences will be determinate.
All this smacks of making law on the hoof and a knee jerk reaction to Joe Public. For my part, I am in favour of the abolition of IPPs. Experience has shown that the Parole Board, who have the last say on release, are often too timid in their approach, and if they are given any opportunity to refuse parole, they take it.
This has had far reaching and unintended consequences for the prisoner and the prison population. In many cases, prisoners under this regime have served sentences well in excess of the maximum sentence allowed if the judge had passed a determinate sentence. On any view, this is manifestly unfair.
But the ‘two strikes and you’re out’ plan is yet another poorly thought out remedy to violent and sexual crime. Do the judges really need the Government in the shape and form of Ken Clarke to lay down the law on sentencing? Long gone are the days when judicial appointments were made on the golf course or the grouse moor. Judges are now appointed on merit, although some might disagree. They attend a stringent vetting process, and after appointment, they are subjected to sentencing seminars and continuous appraisal to keep them up to speed. In short, they are professionals, not well meaning amateurs.
As the Court of Appeal is so fond of reminding us, each case must be decided on its own particular facts, and it is a foolish and insensitive judge who ignores them. To apply an arbitrary flowchart ignores any mitigating circumstances surrounding the offence, making otiose the attendance of counsel before sentence is passed.
Still, if Ken is looking for cuts, this might not be a bad thing.