As judges face criticism from ministers over ?lenient? sentences, JON ROBINS considers their relationship with government and on page 22 examines the role of the Lord Chancellor
?Maturity requires that when you get a decision that favours you, you do not clap and when you get one that goes against you, you do not boo.? Such was the stoic reflection of a former Lord Chancellor, Lord Irvine, as he sought to calm tempers following a spat between ministers and the bench in 2003.
His successor Lord Falconer probably made a similar point last month ? although one suspects in a less tentative way ? to force a humiliating retraction from the new legal aid minister Vera Baird QC, following last month?s furore over the perceived weakness of the sentence handed out to Craig Sweeney for a serious sexual assault on an infant. The ?fiery, redheaded QC? once responsible for ?organising defence cases for the miners? strike of 1984 in the north-east? attacking push-over judges, as the Daily Mail described the minister, had followed the lead of Home Secretary John Reid, who lambasted the judge in question for being ?unduly lenient?.
Judge-bashing has long been a favourite pastime for government ministers ? all the more irresistible because judges do not answer back, not directly at any rate. The new Constitutional Reform Act 2005 elevates the constitutional convention that the Lord Chancellor speaks up for the independence of the judiciary to a statutory duty (see page 22). The current bout of sniping has some way to go to reach the nadir in relations that prompted Lord Irvine?s intervention. That came about when the then Home Secretary David Blunkett almost burst a blood vessel following a controversial ruling on asylum law by the minister?s b?te noire Mr Justice Collins, later upheld by the Court of Appeal.
?I don?t want any mixed messages going out, so I?m making it absolutely clear that we don?t accept what Mr Justice Collins has said,? he fumed in February 2003. ?We?ll seek to overturn it. We?ll continue operating a policy that we think is perfectly reasonable and fair.? That test case on the government?s asylum policy was seen as a defining moment in the battle between our elected representatives and those ?dictators in wigs?, as one tabloid commentator put it. ?David Blunkett declared war on judges yesterday,? his paper exclaimed.
But does it matter that ministers publicly berate judges? Human rights groups read the attacks as dangerously undermining the independence of the judiciary. ?Everyone needs to remember that democracy is not just about periodic elections and majority rule,? says Shami Chakrabarti, director of Liberty, of the recent spats. ?Without a robust and independent judiciary, democracy is at best transient and at worst completely illusory.?
Roger Smith, director of the law reform and human rights organisation Justice, contends that ministerial attacks only serve to underline government failings. ?In the short term, it?s pandering to a tabloid agenda attacking the judiciary and dumping on the judges for being soft on crime in a way that is, frankly, unfair. If there is a problem about sentencing, the least element of that problem is the judiciary,? he says.
?But in the longer term, it is dangerous less for the judiciary than the government. A strong government doesn?t attack judges. It?s a sign of weakness to do so and ultimately the British public will be turned off by it.?
The former Lord Chief Justice Lord Woolf made a similar point on the BBC Radio 4?s ?Law in Action? last month. ?If you knock and knock again, and knock again, at individual judges in intemperate terms, then really it is very damaging,? he said. ?It may be an open goal but it is an own goal which the government scores in those circumstances.?
A possible entente cordiale between the judiciary and the Home Office earlier in the year lasted as long as Charles Clarke?s brief stint as boss. In his first interview with Radio 4?s flagship ?Today? programme, he was quick to distinguish himself from previous home secretaries. ?The independence of the judiciary is something I value very highly. I think of it as a central part of our modern life,? he said.
One of the first cases to come across his desk concerned the arrest and attempted deportation of a Serb, Predrag Karas, and his pregnant wife, Stanislava Milandinovic. Mr Justice Munby criticised the Home Office?s ?unacceptable disdain for the rule of law? which he said was ?as depressing as it was concerning?. The judge went on to accuse the Home Office of ?spiriting away? claimants before they could receive proper advice.
Of course, such fallings-out are not limited to Labour. Michael Howard, when Conservative home secretary, found adverse judicial findings particularly hard to take ? not least when the High Court found that he had acted unlawfully in fixing a 15-year minimum sentence on the young killers of James Bulger. He lashed out at the judgment and promised new law to assert ?the supremacy of Parliament? ? and, of course, his own.
In an echo of the furore over the Sweeney case, the then chairman of the Conservative Party, Brian Mawhinney, at his party?s 1995 conference, urged people upset by lenient prison sentences to protest to judges and magistrates. After his exhortations, Mr Howard proposed his ?two strikes and you?re out? mandatory life sentences for some crime. This prompted a former Master of the Rolls, Lord Donaldson, to accuse Mr Howard of acting like ?a despot?.
Public opinion did have a part to play in sentencing, noted Peter Goldsmith QC, then chairman of the Bar Council, but it was at the stage of laying down general sentencing guidelines ? not individual cases. ?Sentencing by opinion poll, or worse still under the threat of intimidation by hate mail from the ill-informed, is no way to ensure that justice is done,? he said. ?It comes very close to the rule of the lynch mob rather than the rule of law.?
It is unlikely that his opinions have changed much now that the silk is Attorney-General and embroiled in the Sweeney saga. Certainly Lord Goldsmith made his displeasure evident at John Reid?s intervention ? after all, it is for him to say which ?unduly lenient? cases are referred to the Court of Appeal.
Alex Carlile QC, the Liberal Democrat peer and head of chambers at 9-12 Bell Yard in London, has been one of the many lawyers to come to the defence of Cardiff recorder John Griffith Williams? application of the law in the Sweeney case. He points out that the judge followed the sentencing system imposed on him by Parliament ?at the behest of the self-same government now criticising the results of his decision?.
?The case provides a good example of the failure by some ministers to understand the fragile importance of their role in ensuring judicial independence,? the silk notes. He also highlights criticism of the decision ? now subject to appeal ? of Mr Justice Sullivan that nine Afghan dissidents could stay in this country indefinitely, because to return them home to liberated Afghanistan would be an abuse of their human rights. It prompted Prime Minister Tony Blair to have his highest profile fall-out with judges when he described the case as ?an abuse of common sense?.
According to Mr Carlile, ministers are entitled to free speech ?even if sometimes of a self-contradictory, collective kind?. But he draws the line at Ms Baird?s comments on Radio 4?s ?Any Questions?. ?I?m critical of the judge for three reasons,? she said. ?One, starting too low; two, deducting too much for the guilty plea; and three, getting the formula wrong.?
He says these comments were ?ill-informed, misleading and inaccurate?. He adds: ?Nobody can complain sensibly if the government expresses disappointment at the result of a court case, and a determination to appeal. Even a rationally expressed will to change the law as a consequence is permissible. However, knee-jerk reactions to ill-informed campaigns by red-top newspapers do nothing but damage to what marks the UK out from almost all comparable nations ? the fiercest separation of powers, in which the judiciary stands so clear from the executive.?
Jon Robins is a freelance journalist.