All those interested in the criminal law in its multifarious forms including, but not exclusively, deterrence, arrest, charging, sentencing, courts, probation, prison, rehabilitation will have reservations about one or more aspects of the system one of which will be government intervention post sentence. All sentencers must declare in open court except in exceptional circumstances that an immediate custodial sentence will be within prison walls usually, but not always, for the first half of the stated sentence and the offender will be released on license for the remainder. For many observers this policy seems at odds with guidelines laid down by the Sentencing Council. Considering all the stages that judges and magistrates must consider in a sentencing exercise, an exercise that surely within a decade will be replaced by smart algorithms, finally stating in open court that a decision has been reached after studying "a,b and c to x,y and z" of the offender and the crime "you will be released after serving half that time" seems to make a mockery of the whole process. Whatever the license conditions surely it would be more logical to offer offenders the possibility of release depending on their behaviour in prison and their state of rehabilitation? The public would also be more likely to believe that the punishment really does fit the crime. Government thinking on sentencing can be gauged from this document and on early release on this paper published in 2020. On 7th March I commented on the tragic case of Auriol Grey. The Times reported a few days ago the MOJ commenting on the sentence and future appeal, "Sentences are determined by independent judges based on the full facts of the case": an arms length comment rather different from the powers this government has taken to intervene in such matters when it considers worthy of media headlines.
was passed in a proceeding in the Crown Court; and
appears to be unduly lenient.
On 8th November 2022 the Court of Appeal issued the following statement:- "If the Court of Appeal agrees that the sentence is unduly lenient then it may increase it. The Court of Appeal will only find a sentence to be unduly lenient where it falls outside the range of sentences which the judge, applying their mind to all the relevant factors, could reasonably consider appropriate."
The Parole Board was established as an arms length body to oversee the possible early release of prisoners. It is supposed to be completely independent. It appears that this government seeks further control of Parole Board decisions. We are therefore in a situation where quite correctly the MOJ sets out the parameters under its control and as is right and just in a democratic society assigns certain operational features to be applied and administered by independently appointed people chosen for their supposed abilities in the area under question. It cannot be right and just for government to change the rules of the game and to have final control on sentencing by overruling the decisions made by those specifically appointed and trained for such function.
All parts of the criminal justice system have been systemically underfunded since 2010. Those squawking 13 year old chickens have now well and truly come home to roost a year or so before a general election where the Tories are hastily trying to inculcate their version of what became in 1997 Tony Blair`s successful mantra of 1993; "Tough on crime and tough on the causes of crime." But in so doing they are destroying that very system. In the modern era all aspiring authoritarian governments have attempted to take control of the courts by enacting measures through what the late Lord Hailsham, former Conservative Cabinet member, described as the "elective dictatorship of parliament" during the 1966 general election. ‘Of all the democracies’, Hogg warned, ‘Britain is nearest to an elective dictatorship’. The following year, Hogg called for a constitutional convention, chaired by ‘some elder statesman of universally respected character’, to restrict these unlimited legislative powers of Parliament. Hogg proposed the establishment of regional parliaments, a British Bill of Rights that limited parliamentary action, the ability of the judiciary to override Acts of Parliament it deemed to be ‘unconstitutional’ or passed without ‘adequate debate’, and fixed-term parliaments. These reforms would ensure that a government which enjoyed the confidence of the House of Commons could be stopped from implementing its agenda whenever judges felt such policies were objectionable. The solution to elective dictatorship, then, was that ultimate power would be wielded by unelected experts.
Parliaments and judiciary have been in conflict for centuries. Indeed in Israel at this very moment the argumental essentials of this dissention are being played out on the streets of Tel Aviv and Jerusalem. Generally those of right wing disposition tend to be supportive of the rights of parliament as the democratically elected government and on the Left of centre the judiciary is seen as the brake on untrammelled power. It is a paradox that true democracy is most in danger when those two forces are in alignment. Let the discord continue for all our sakes.
All parts of the criminal justice system have been systemically underfunded since 2010. Those squawking 13 year old chickens have now well and truly come home to roost a year or so before a general election where the Tories are hastily trying to inculcate their version of what became in 1997 Tony Blair`s successful mantra of 1993; "Tough on crime and tough on the causes of crime." But in so doing they are destroying that very system. In the modern era all aspiring authoritarian governments have attempted to take control of the courts by enacting measures through what the late Lord Hailsham, former Conservative Cabinet member, described as the "elective dictatorship of parliament" during the 1966 general election. ‘Of all the democracies’, Hogg warned, ‘Britain is nearest to an elective dictatorship’. The following year, Hogg called for a constitutional convention, chaired by ‘some elder statesman of universally respected character’, to restrict these unlimited legislative powers of Parliament. Hogg proposed the establishment of regional parliaments, a British Bill of Rights that limited parliamentary action, the ability of the judiciary to override Acts of Parliament it deemed to be ‘unconstitutional’ or passed without ‘adequate debate’, and fixed-term parliaments. These reforms would ensure that a government which enjoyed the confidence of the House of Commons could be stopped from implementing its agenda whenever judges felt such policies were objectionable. The solution to elective dictatorship, then, was that ultimate power would be wielded by unelected experts.
Parliaments and judiciary have been in conflict for centuries. Indeed in Israel at this very moment the argumental essentials of this dissention are being played out on the streets of Tel Aviv and Jerusalem. Generally those of right wing disposition tend to be supportive of the rights of parliament as the democratically elected government and on the Left of centre the judiciary is seen as the brake on untrammelled power. It is a paradox that true democracy is most in danger when those two forces are in alignment. Let the discord continue for all our sakes.
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