There have been observers from time to time who have opined that the law is or should be above political bickering; that it stands supreme. A well known adage is worth a thought that there is sometimes an occasion when a choice has to be made by judges between the letter of the law or the spirit of the law the latter being an attempt to enact what the law makers intended but failed to make 100% explicit in their legislation as it was passed by an act of parliament. The balance between lawmakers who create the legislation over which the judges must adjudicate and judges who must interpret and apply the legislation has always been a matter of controversy. The American constitution whose writers are held by some as demi gods did their best to separate legislative and judicial functions. Events of late in that country have demonstrated the difficulties involved. Currently Israel, the only democratic country in the middle east, is having its own moment in the spotlight where a right of centre government is trying to extend its power by eating into what had been assumed since 1948 were powers reserved for the judiciary. This country is far from immune from the executive`s attempt at similar actions when a private citizen went to the supreme court to overturn the actions by the then prime minister Boris Johnson to prorogue parliament in furtherance of his political objectives subsequent to the 2016 referendum majority decision to leave the European Union.
In actual courts where most of the public obtain their legal information through the media, whether that is the mass or on line social variety, Sentencing Guidelines are held as an example of a government attempting to overcome judicial decision making by laying out national ground rules which are little short of a box ticking exercise that phrase now itself held in contempt as being an excuse for failure. However that has not been enough. For over 30 years the Unduly Lenient Sentence (ULS) scheme has helped victims of crime get what some perceive as righteous justice.
The scheme was launched in 1989 following public outcry over a series of controversial sentencing decisions, including the 1986 ‘Ealing vicarage rape’ case where 21-year-old Jill Saward was raped by burglars at her father’s vicarage. The first ULS hearing took place in July 1989. In this case, a man who committed incest on his daughter had his sentence doubled from 3 to 6 years in prison. The scheme has since helped thousands of victims and their families get justice, and in an important hearing last year two of the UK’s most prolific rapists - Joseph McCann and Reynhard Sinaga - had their sentences increased by 10 years, meaning that both offenders should now serve at least 40 years in prison before they can be released. In 2019 alone, 63 offenders had their sentences increased under the scheme – 16 of those were given custodial sentences after avoiding prison time at their original sentencing. Since it launched, the scheme has been expanded 6 times and now includes a range of terror-related offences, all serious sexual offences, threats to kill, child cruelty, people trafficking and modern slavery, and many racially and religiously aggravated offences. Most recently, sexual offences involving an abuse of trust, indecent images offences and domestic abuse offences were added to the scheme. Commenting on the anniversary, Attorney General, the Rt. Hon. Suella Braverman QC MP said: For over 30 years, the ULS scheme has helped victims of crime and their loved ones get justice. The scheme includes many more offences now than it did when it was first launched, allowing us to look at more sentences which don’t appear to fit the crime. In the vast majority of cases, judges get it right, but the scheme is important to ensure that certain cases can be reviewed where there may have been a gross error in the sentencing decision. The ULS scheme allows prosecutors, victims of crime and members of the public to ask for certain Crown Court sentences to be reviewed by the Law Officers if they think the sentence is far too low. Some cases referred to the Court of Appeal can also offer guidance for future sentencing decisions. Anyone can ask for a sentence to be reviewed if they think it is too low, and only one person needs to ask for it to be considered. Further requests do not lend any extra weight as the decision to refer a sentence as too low can only be based on the legal threshold. The Law Officers have 28 days from the date of sentencing to refer a case to the Court of Appeal, so it’s important for them to receive a referral as early as possible in order to properly consider a case.
What happens to the judges who get it wrong? We do not know. As with many aspects of the secrecy in the workings of the unwritten British constitution any sanctions are applied behind closed doors. Examples of late are District Judge Stephen Leake who told Medway magistrates court last month that he wanted to jail Fabian Greco for 18 weeks for a violent offence but couldn`t because the prisons were full. He suspended the sentence for two years because, he said, the courts had been issued with guidance from the government to "relieve the pressure on the prison estates as much as possible" due to a lack of spare capacity. Government sources said his remarks were nonsense. Whether DJ Leake has been chastised by his superiors we do not know; the cloak of secrecy surrounding such matters is tightly drawn. However if lowly magistrates dare stray from an imposed straight and narrow path they are held up to public disgrace by the forum AKA the Judicial Conduct Investigations Office. For recent examples refer to statements 2522 2422 2222 2122 1922 2622
The omarta code of silence from the senior judiciary and His Majesty`s Courts and Tribunal Service over the scandal of mass authorisation of entry warrants forced if necessary with the purpose of installing PAYG energy meters is but the latest proof that there is an almost conspiratorial protection surrounding the biggest of the bigwigs who must have had input into the original decision to approve such policy but the supposed face of local justice, itself now an anachronism, the lay magistrate, can be treated like a peasant subject to the whims of his/her medieval master. There are, however, the odd occasions when the senior judicial mask slips or appears to slip. The difficulty is knowing when government prodding and poking has enforced the slip. Recently the Lord Chief Justice has complained that defendants pleading not guilty are holding up the reduction of the massive backlog in the crown courts itself blamed on Covid 19 but mush self inflicted by government imposed restrictions on the number of courts available to hear cases owing to that self same government being unable to settle pay disputes with its own judges or self employed barristers, or pay for the courts to be legally complying places of employment. Paradoxically magistrates have known about defendants offering an equivocal plea of guilty just to expedite proceedings and reduce their possible financial losses since the introduction of the Criminal Courts Charge in 2015. In November of that year the House of Commons’ Justice Committee stated, "In many cases it is grossly disproportionate, it fetters judicial discretion, and creates perverse incentives – not only for defendants to plead guilty but for sentencers to reduce awards of compensation and prosecution costs. It appears unlikely to raise the revenue which the Government predicts. It creates a range of serious problems and benefits no one."
Two questions:
Does (should) the judiciary back up government?
Does (should) the judiciary back off from backing up government?
So the point is does the secrecy surrounding judges, their decisions, their errors, their disciplinary procedures, their relationship with government, their relationship with the public and their colleagues benefit us the man in the street, the person on the Clapham omnibus, Joe Public or Jo Bloggs? I would venture to opine when marking the judicial report card, "Attempting by obfuscation to avoid answering the question as set by the examiners. Must try harder failing which examiners must question the candidates` future in their chosen career".
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