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.

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David is an English barrister, writer, public performer and keynote speaker. His full profile can be found on his website.

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