IN THE SEAT OF JUDGMENT

It is not easy to determine the qualifications needed to be a good judge.  Infinite patience must be one, compassion another, and doing the right thing even if it kicks against the prick.

Nowadays, judicial preferment is open to both barristers and solicitors, although in the great scheme of things, solicitors are a relatively late arrival. In the good old days, or not, depending on your perspective, judges were appointed on a nod and wink, and it was all very informal.  If your face fitted, you were in.

How times have changed.  Today, those who seek judicial office must now submit a written application, fill out several forms together with two recent passport photographs, be interviewed by assorted minions, and succumb to background checks to weed out the undesirables who consort with femmes fatales and who wear women’s undergarments.  Everything possible is done to ensure that the newly appointed judge will march to the Lord Chancellor’s tune and never march out of step. With this in mind, the LCD has produced a series of sentencing guidelines, regularly updated to reflect the political climate, and judges both old and new are enjoined to follow them.  By all accounts, there are to be no exceptions to the rule, and those who stray are carpeted and warned as to their future conduct.  It’s like Judge John Deedes, but for real, and as there is an index-linked pension at stake, few if any break ranks.

And so it was that Roy Delph, an 88 year old pensioner and the main carer of his 73 year old wife, found himself on the receiving end of a two year sentence of immediate imprisonment for possession of a loaded antique firearm in a public place.  It was accepted by the judge that Mr. Delph had the gun for his own protection, as he had been targeted by local yobs, an all too familiar story.  But according to the guidelines, a sentence of immediate imprisonment was called for, and the judge duly passed it.  Understandably, there was a hue and cry across the Media, as the sentence was manifestly wrong, not as a matter of law, but as a matter of compassion and common sense.  Fortunately, a way was contrived to sidestep the sentencing guidelines and the unfortunate Mr. Delph was released after 18 days with the taxpayer picking up a bill of £1250 for board and lodging at Norwich Prison. He was, and remained, totally bemused by the English criminal system, as he was profoundly deaf and followed very little of the proceedings that led to his incarceration.

Some years ago, I found myself in front of the Lord Chief Justice appealing a sentence.  During my submissions, we had a lively discussion on guidelines to be followed by the sentencing judge.  The LCJ was unimpressed by the reliance placed on them:

“It should be made clear,” he ruled, “that by their very definition, guidelines are only that,  guidelines, and too slavish an adherence to them can lead to a miscarriage of justice.”  Amen to that.  That ruling needs to be framed and hung in every judge’s room throughout the land.

I am not arguing against guidelines, after all, they bring consistency and uniformity to the sentencing process.  But they should be seen for what they are, and not a sentencing straitjacket.  If only somebody at Norwich Crown Court had had the wit and courage to tell the judge that under no circumstances whatsoever could he contemplate sending this 88 year old man to prison, a way could have been found that was eventually found some 18 days later, and in so doing, he would have spared Mr. Delph and his wife the ordeal and, more importantly, have defended the law from all those many people who thought it an ass, and rightly so.

TAKE HIM DOWN

I have never felt comfortable about the Court of Appeal increasing sentences.  The power of the Court to do so goes back to the high point of the blessed Saint Margaret’s tenure of office in 1986, four years before Michael ‘Brutus’ Heseltine and his co-conspirators stabbed her in the back and removed her from the Premiership.  Something back in 1986 must have upset her, and here we are spoiled for choice, as she ordered the acerbic but otherwise wholly ineffectual Scot Lord Clash of McFern, he of the ready wit and lively repartee, to introduce legislation to hammer the ungodly, and section 36 of the Criminal Justice Act saw the light of day.

This section enables three judges of the Court of Appeal who took no part in the trial and so come to their task with an open mind, to determine if the sentence passed by the trial judge was ‘unduly lenient’. The only basis on which they can arrive at this conclusion is not what the tabloids or red tops have to say on the matter, but rather by way of reference to ‘sentencing guidelines’.   It’s a system we’ve inherited from the Americans, and it involves following slavishly all the relevant factors for and against the accused, and mostly against, to ensure uniformity.  A noble aspiration no doubt, but if we are to go beyond the principle of making the punishment fit the crime, sentencing guidelines can become a straitjacket.  They pay lip service, no more, to the accused and his personal circumstances.  They cannot pay lip service to matters that arose during the trial, as these judges weren’t there, and all importantly, they didn’t witness the accused’s demeanour, or the way he gave evidence, or any displays of remorse or indignation, which only the trial judge is qualified to assess and take into account.

I remember one senior judge telling me not so long ago that he was an irrelevance to the sentencing process.  Far better to simply load into the computer all the touchstones, follow the relevant flow charts, push ‘enter’ and pass the sentence that the computer spews out.

What is worrying, and what is becoming a regular event in the criminal justice system, is the prosecution of allegations going back in some cases 50 or so years, where the accused is often elderly, infirm and sometimes of weak mind.  Whilst I do not condone what they did, if they did it, where is the compassion?  And what does it achieve? That’s why I support the decision of the DPP not to prosecute Lord Janner. I hope she is strong enough to withstand the enormous pressure being put on her to change her mind, or worse still, for the decision to be taken out of her hands and reversed. That would be a travesty of justice, and would wholly undermine the role and dignity of her office.

PRISON REFORM

Jack Straw’s latest perorations on crime and punishment fall well short of a reasoned argument, based as they are on the emotive knee jerk journalism of the tabloids.

I refer to his bald statement that prisons should not be holiday camps, they are there expressly to punish offenders, and too much time and effort is spent on them and not enough on the victims of crime.

His speech is set against the ever increasing prison population, about which more than enough has already been written, but his emphasis on punishment as opposed to rehabilitation is disappointing and short sighted.

No doubt there are researchers out there, and statisticians of every hue, who will tell us that the rate of reconviction of offenders released from prison is in the region of 60%. That is a staggering and hugely depressing statistic, and the cost to the public purse must be equally staggering.

I visit prisons on a regular basis in the course of my professional practice, and I have yet to find one single prison that can be equated with a holiday camp. The regime is restrictive, prisoners’ movements are tracked every minute of every day, there is a complete absence of a caring environment, and rather like the worst of state schools, the staff have a siege mentality, simply trying to get through the day without a major disruptive incident. It’s all about keeping the lid on a boiling cauldron.

Don’t get me wrong. There are an enormous number of dedicated staff, from prison officers to probation workers to course providers through to chaplains and counsellors, all doing a herculean task with little reward, but they too are fighting a system that doesn’t work.

For the most part, the prison population comes from the most disadvantaged sections of our society, those from broken and violent homes, with few if any educational qualifications, most are barely literate, with no employment prospects above the most basic, like wheeling supermarket trolleys across the car park, and with no sense of direction or purpose in life. So a period of enforced incarceration should provide the State with a golden opportunity to improve their lot and return them to Society as better men and women. Above all, to give them hope. The present system is simply setting them up to fall.

You achieve nothing if you dehumanise offenders from the moment they walk through the prison gates. A civilised society should aim to give them hope and fulfilment, with the deprivation of their liberty sufficient punishment for their crimes.

The whole question of crime and punishment should be revisited, to include the courts and the very debatable approach now adopted where the imposition of a custodial sentence is the sentence of first resort, not because the judges are in favour of it, but because the Government tells them.

By making the prison environment more user friendly, and more compassionate, you remove at a stroke the hostility simmering below the surface. If you treat prisoners as human beings, with needs and aspirations, they are more likely to behave like human beings. By filling their days with meaningful activities pitched at their intellectual level, and by offering them a real chance to improve their lot, they won’t come back.

So enough of this political posturing. Try a little kindness and compassion, and let the tabloids go hang!