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Jun. 18th, 2003 07:02 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
liadnanIt's beginning to look as though the legal profession, with the senior judiciary in the van, are about to go to war with the Home Secretary. This could be fun to watch. One wonders how it will pan out, given that Blunkett is one of the few members of the Cabinet who has never been a practicing lawyer. And New Labour only has itself to blame. It was they who, after many years of wavering, brought in the Human Rights Act, giving to the British courts a kind of Heath Robinson version of Marbury v. Madison, that is, allowing them to effectively overrule even an Act of Parliament. In practice, if not in all versions of jurisprudential theory, we have returned to some approximation of natural law theory, and the "will of the people" as expressed in Parliament is subject to that. To an extent, that's been true since we signed the Universal Declaration and European Conventions almost 50 years ago, but it is only since the HRA was passed into law that the British courts, as opposed to supranational courts, has had the power. And that matters, in practice because it took time and money to get to Strasbourg in principle because of what it says about the relationship between principles of individual rights protected by the courts, and principles of democracy, within the state. Before, the latter won out. Now, in practice, the former does.
I find myself in the somewhat odd position of being sceptical about that from a philosophical point of view but in support of it from a practical point of view. The real issue the LCJ and the Home Secretary are fighting about at the moment is the sentence for murder. I find myself slightly taken aback that one of the speakers on the news in support of the Home Secretary's position, that the tariffs for a murder sentence should be set by the government (and I say government, rather than Parliament, advisedly), the father of a girl who was raped and horribly murdered, said something along the lines of "if the judge doesn't mean life, he shouldn't say life". Why is that surprising?
Because what wasn't discussed, and to the best of my knowledge is not changed in the Bill, is this: the life sentence for murder is mandatory. If someone is found guilty of the charge, that is the only sentence the judge can give, formally, hence for practical purposes the evolution of the "tariff" where the judge says how much of that sentence should be served behind bars before the prisoner becomes eligible for parole. That is because it is a withdrawal from the old position: that a proven charge of murder carried a mandatory death sentence (subject only to a plea of clemency)... and the withdrawal in the Homicide Act went only so far and no further. The chap (who came across as perfectly reasonable, I hasten to add), who is actively campaiging on criminal sentencing issues, evidently did not know that. OK, that isn't as bad as Anne Widdecombe, who, in the middle of the furore over the Martin case said the law on self-defence should be changed, and when asked what to, came out with a "new" law that in fact corresponded precisely to the current law... The problem in that case was simple: the jury didn't believe Martin, probably because the intruder was shot in the back... (there were other problems, which is why the case was semi-successfully appealed, but the point remains).
This is the problem, this is why we are in the bizarre position of judges sentencing people for life and then saying how long they should in fact have in prison. If we're going to reform it, let's start with that.
Since I don't do crime, I get to watch from the sidelines. And I have no personal liking for our revered LCJ, Harry Woolf of the rotten teeth, the man who while in charge of civil justice as Master of the Rolls managed to change everything seemingly for the sake of it (don't call them writs and plaintiffs, call them claim forms and claimants, and hurrah, civil justice is modernised and effective with one bound), while evidently making no real impact on the real problems, like the spiralling cost of the legal aid bill, so I'm not sure which side I am.on... oh hang on, wait..
Yes I am. David Blunkett is a man who makes me want to possess hobnailed boots so I can have the pleasure of jumping up and down on his head.. And I think he's wrong. Beyond a certain limit, which one is inevitably beyond in a murder case in any event, I don't believe longer sentences make a blind bit of difference as a deterrent: beyond that limit the purpose can only be either retributive justice or protection of the public from recidivists. And every case is different, which is why when it comes to sentencing, if one uses more than the most general rules, then the result will, I think, inevitably be to create a blunt instrument. God help us all. Did we ever really imagine that there might be a Home Secretary who made Michael Howard look like a wet liberal, still less that they might come, ostensibly, from what we still persist in calling the left wing?
So when I see Woolf taking the remarkable step of standing up in the House of Lords sitting legislatively to say the Bill at the centre of the Home Secretary's policy is crap, my feelings are mixed. The judicial members of the House of Lords very rarely take advantage of the right to speak and vote in the Lords proper. The Lords of Appeal in Ordinary and the retired senior judiciary may say something esoteric from time to time, but for the LCJ to do so is remarkable (note for those who don't understand the minutiae of this: the LCJ is the day to day head of the English (not UK) courts, in particular the criminal courts. He can sit as a judge of the House of Lords (ie as a member of the Supreme Court of the UK) if he's been given a Life Peerage which they almost always are, and Woolf occasionally does, but the Lords of Appeal in Ordinary proper outrank him. His position is more hands on and executive.
I'm generally against serving judges having the right to do this at all. Their experience has proved to be useful in the past when they have exercised their right to speak, and their points are never truly party political, but it is inappropriate when they may have to decide a point on the interpretation of the statute in their judicial capacity. The problem comes when, as now, they are so quite obviously right...
I find myself in the somewhat odd position of being sceptical about that from a philosophical point of view but in support of it from a practical point of view. The real issue the LCJ and the Home Secretary are fighting about at the moment is the sentence for murder. I find myself slightly taken aback that one of the speakers on the news in support of the Home Secretary's position, that the tariffs for a murder sentence should be set by the government (and I say government, rather than Parliament, advisedly), the father of a girl who was raped and horribly murdered, said something along the lines of "if the judge doesn't mean life, he shouldn't say life". Why is that surprising?
Because what wasn't discussed, and to the best of my knowledge is not changed in the Bill, is this: the life sentence for murder is mandatory. If someone is found guilty of the charge, that is the only sentence the judge can give, formally, hence for practical purposes the evolution of the "tariff" where the judge says how much of that sentence should be served behind bars before the prisoner becomes eligible for parole. That is because it is a withdrawal from the old position: that a proven charge of murder carried a mandatory death sentence (subject only to a plea of clemency)... and the withdrawal in the Homicide Act went only so far and no further. The chap (who came across as perfectly reasonable, I hasten to add), who is actively campaiging on criminal sentencing issues, evidently did not know that. OK, that isn't as bad as Anne Widdecombe, who, in the middle of the furore over the Martin case said the law on self-defence should be changed, and when asked what to, came out with a "new" law that in fact corresponded precisely to the current law... The problem in that case was simple: the jury didn't believe Martin, probably because the intruder was shot in the back... (there were other problems, which is why the case was semi-successfully appealed, but the point remains).
This is the problem, this is why we are in the bizarre position of judges sentencing people for life and then saying how long they should in fact have in prison. If we're going to reform it, let's start with that.
Since I don't do crime, I get to watch from the sidelines. And I have no personal liking for our revered LCJ, Harry Woolf of the rotten teeth, the man who while in charge of civil justice as Master of the Rolls managed to change everything seemingly for the sake of it (don't call them writs and plaintiffs, call them claim forms and claimants, and hurrah, civil justice is modernised and effective with one bound), while evidently making no real impact on the real problems, like the spiralling cost of the legal aid bill, so I'm not sure which side I am.on... oh hang on, wait..
Yes I am. David Blunkett is a man who makes me want to possess hobnailed boots so I can have the pleasure of jumping up and down on his head.. And I think he's wrong. Beyond a certain limit, which one is inevitably beyond in a murder case in any event, I don't believe longer sentences make a blind bit of difference as a deterrent: beyond that limit the purpose can only be either retributive justice or protection of the public from recidivists. And every case is different, which is why when it comes to sentencing, if one uses more than the most general rules, then the result will, I think, inevitably be to create a blunt instrument. God help us all. Did we ever really imagine that there might be a Home Secretary who made Michael Howard look like a wet liberal, still less that they might come, ostensibly, from what we still persist in calling the left wing?
So when I see Woolf taking the remarkable step of standing up in the House of Lords sitting legislatively to say the Bill at the centre of the Home Secretary's policy is crap, my feelings are mixed. The judicial members of the House of Lords very rarely take advantage of the right to speak and vote in the Lords proper. The Lords of Appeal in Ordinary and the retired senior judiciary may say something esoteric from time to time, but for the LCJ to do so is remarkable (note for those who don't understand the minutiae of this: the LCJ is the day to day head of the English (not UK) courts, in particular the criminal courts. He can sit as a judge of the House of Lords (ie as a member of the Supreme Court of the UK) if he's been given a Life Peerage which they almost always are, and Woolf occasionally does, but the Lords of Appeal in Ordinary proper outrank him. His position is more hands on and executive.
I'm generally against serving judges having the right to do this at all. Their experience has proved to be useful in the past when they have exercised their right to speak, and their points are never truly party political, but it is inappropriate when they may have to decide a point on the interpretation of the statute in their judicial capacity. The problem comes when, as now, they are so quite obviously right...
