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.