Judges deny it is their fault that life sentences of as little as 15 months make a mockery of justice. So whose fault is it?
Last week the public rubbed its eyes in disbelief when it seemed that our criminal justice system had been turned on its head in the style of Alice in Wonderland. Like Lewis Carroll?s characters the Queen?s law officers squabbled with each other, and Lord Falconer, the lord chancellor, popped up to admit that the rules were too bizarre for even judges to understand.
The furore over lenient sentencing exploded in a steady crackle of headlines. Craig Sweeney, a paedophile, was rewarded with a mere five-year prison tariff partly for pleading guilty after being caught red-handed at the end of a high-speed car chase in the act of abducting a three-year-old girl. This and other cases exposed a dismaying system of discounts and get-out-of-jail-quick credits in our courts.
Then details were slipped out to MPs that 53 criminals sentenced to ?life? in jail since 2000 had been released after serving fewer than six years. In one case ?life? had meant actually serving 15 months. The revelations brought increased pressure on John Reid, the embattled home secretary, whose call for Sweeney?s sentence to be reviewed met a put-down by Lord Goldsmith, the attorney-general, who huffed that he would not be swayed by political pressure.
Tony Blair?s promise of radical reforms has not stilled a chorus of ?off with their heads?. But whose heads? The ?soft? judges, accused of being aloof and out of touch with the public?s commonsense view of right and wrong? Or the government, which has added 54 new laws to the legal maze and is so intent on easing overcrowding in jails that hardened criminals can serve only a fraction of their sentences?
Stuart Fish has been characterised by the media as Britain?s most lenient judge after topping the attorney-general?s list of more than 200 judges who have given ?unduly lenient? sentences to criminals guilty of sex offences and other serious crimes in the past three years. Have he and his colleagues lost the plot?
?I don?t think we?re out of touch,? says Fish, a circuit judge whose retirement in December allows him to respond. ?The vast majority of judges are men and women who have spouses and children. We?ve all been in practice, either at the bar or as solicitors, and in that capacity we have more experience of criminal behaviour than many members of the public.?
He suggests that if the public does not want an independent judiciary, it should elect judges. But public opinion is not what it seems, in his view: ?The public think they want all sorts of desperate things to happen, but when it actually comes to it, they don?t.? He cites a recent experiment in which two groups of people were asked their opinion on a sentence. Those who were given all the judge?s papers thought it too severe, while those relying on media reports pronounced it too lenient.
Yet Fish unapologetically takes issue with the belief held by victims? families and many members of the public that prison works as a deterrent when an offence is being planned or committed. ?The vast majority of people who commit criminal offences don?t run their lives on a risk assessment basis. They don?t expect to get caught. But if they do get caught, the consequences are so far removed from the act itself that it doesn?t impact on them.? Only after two or three spells in jail might they conclude that the odds are unfavourable and the deterrent effect comes into force, he says.
A common criticism of judges is that they err on the side of leniency to avoid the humiliation of their judgments being overturned by the appeal court. ?The Court of Appeal can sometimes be rather critical in its comments,? Fish concedes. ?But we try to do what we think is right for all parties involved. If prison can be avoided, then in any community penalty there should be an element of punishment, an element of restraint and an element of correction. The offender can be recalled to court and sentenced afresh.?
What explains Fish?s record? He points out that of the 339 cases of undue leniency on Goldsmith?s list, 10 were his, of which four were left unchanged. In the same period, the appeal court received about 16,000 applications to challenge sentences; of the 6,500 appeals heard, 4,000 were granted, some against sentences imposed by him: ?So in the period when people are complaining about some 210 lenient sentences, 4,000 were found to be too severe. Either that, or the Court of Appeal went soft. It depends which way you look at it.?
He claims that judges ?don?t pay any attention to the way the wind is blowing in government?. Yet he admits that some of his decisions have been influenced by the overcrowded state of prisons, partly a consequence of the government?s reluctance to build any more: ?In those overcrowded circumstances it?s not possible to work with prisoners as many prison officers would want.?
How much discretion do judges really have? Fish says that the welter of prescriptive legislation has left him with the feeling ?that we are not very far from the situation where we will feed all the reports and facts into a computer, which will give you the result. I would ask them to leave things alone?.
David Thomas QC, who wrote the ?bible? on sentencing, Current Sentencing Practice, says judges have a great deal of latitude: ?But it?s constrained by legislation, case law and sentencing from the Sentencing Guidelines Council. The judge has to get them all into focus. He knows that if they go too low there might be a risk that the attorney-general will try to refer it. If he goes too high the defendant will try to appeal against it.?
Much of the current anger and confusion stem from the courts? misleading language. To many people, ?life? suggests perhaps 20 years in prison, not six years or fewer. In fact the word refers to being monitored on licence for life ? more an aspiration than reality ? and not the actual minimum prison term, known as the tariff.
The use of this misnomer is symptomatic of government spin, according to David Davies, the Tory MP for Monmouth, whose parliamentary questions disclosed the early release of 53 ?lifers?. He is forming a group called Stop All Forms of Early Release to campaign for ?honest? sentencing that means what it says.
?It?s my feeling that for financial reasons the government doesn?t want to put people in prison,? he says. ?They are deliberately trying to deceive the public into thinking that people are serving long sentences when in actual fact they?re not. A life sentence looks good, and then they?ll quietly ensure they?re let out by a parole board a couple of years later. It means they don?t have to build more prisons.?
However, the sense of betrayal experienced by victims? families at judges? leniency is not new. Last week David Hines was dreading the possible release of the man who had killed his daughter. Marie Hines was 23 when Tony Davison, her former boyfriend, strangled her while on bail in 1992.
It seemed a clear-cut case that would result in a severe sentence. Davison had gone to a police station and admitted the offence, but then entered not guilty pleas until the trial, when he pleaded guilty. This earned him a reduced ?life? sentence of 14 years until he was eligible for parole last week.
?I was livid,? says Hines, founder of the North of England Victims Association. ?I had reports from the pathologist and the coroner that showed he?d sexually assaulted Marie when she was dead. That in itself should have carried another life sentence. It was a horrific sexual assault on a dead person. For the life of me I cannot understand why he wasn?t prosecuted with the full power of the law. I?ve just been told he won?t be getting out, so that?s good news.?
Most of the 53 released ?lifers? were jailed under the controversial ?two strikes means life? policy, in which offenders convicted of a second serious or violent offence were given automatic life sentences under laws introduced by the Conservative party and implemented by Labour in 1997.
?It forced courts to pass life sentences in cases where they wouldn?t have dreamt of doing so,? says Thomas. He recalls the case of an ?incompetent and daft? second offender who robbed a shop at the point of a banana, concealed in a bag. ?After the robbery, he got on his motorbike and collided with the police car that was answering a 999 call.? He became a lifer.
That legislation has been replaced by the Criminal Justice Act of 2003, which introduced indeterminate sentences for offenders considered dangerous and posing a significant risk to the public. These are similar to ?life? sentences for murder, rape, manslaughter and causing grievous bodily harm with intent. Although the judge does not fix a release date, the offender will still be eligible for parole after a set period.
To work this out the judge tots up the tariff according to formulas that have outraged critics. The first allows prisoners to be automatically released after serving half their sentence.
Another allows sentences to be cut by a third if a defendant pleads guilty. This was intended as a reward for not putting witnesses, especially victims, through the ordeal of giving evidence in court and for saving court time. But many argue that it should not apply to the likes of Sweeney, who had little option but to plead guilty.
Sweeney?s tariff was calculated on the basis of an 18-year sentence. His guilty plea reduced it by a third to 12 years; this was automatically halved to six years. Taking into account time spent on remand, Sweeney could be released in just over five years.
According to Norman Brennan, a serving police officer and founder of Victims of Crime Trust, these early releases send out the wrong message to a public that has lost confidence in British justice. ?We are witnessing the breakdown of law and order in this country,? he says. ?Everybody blames everyone else. As police we often have to go and apologise to the families of victims at the Old Bailey.?
A five-year ?life? sentence, amounting to one-sixteenth of an average man?s life expectancy, makes a ?mockery? of the law, he complains: ?Judges bend over backwards to avoid sending people to prison. They receive directives saying there are too many people locked up.?
He recalls a very different picture when he joined the police 27 years ago: ?Everyone reported robbery then because the Old Bill was on the beat and judges sent every robber to Borstal or prison. There were no exceptions. The sentencing has gone down, robberies have increased and everyone has failed in their care of duty.?
The courts gave few discount vouchers to villains. The Great Train Robbers, who stole ?2.3m in 1963, received sentences of up to 30 years each. So did the East End gangsters Reggie and Ronnie Kray. Ronnie died in Broadmoor after serving 26 years; Reggie followed him in 2000 after 31 years behind bars.
Brennan fears that the damaged compact between the public and the courts, which once ensured that crimes would be punished, will result in vigilantism. ?If the public take the law into their own hands, it will be the law of the jungle,? he says.
HOW WE COULD IMPROVE THE SYSTEM
The government has promised a radical overhaul of the criminal justice system before parliament?s summer recess and a bill will be brought to the Commons in November. Ideas under consideration include:
- Scrapping the automatic one-third off sentences for guilty pleas. This right caused outrage in the case of Craig Sweeney, the paedophile caught red-handed while abducting a three-year-old girl. It was one factor in reducing his minimum sentence to five years.
- Unanimous decisions by parole boards, which have the final say on whether a criminal no longer poses a risk to the public and can be released.
- Revision of the automatic release of prisoners halfway through their sentence. This replaced a system under which prisoners were released three-quarters of the way through their sentence without conditions or supervision.
- Greater discretion for judges, including the right to spell out the minimum and maximum jail term an offender would serve.
- Tony Blair will outline plans for legal changes in a speech this week, despite a plea to ?shut up? by Lord Ramsbotham, a former chief inspector of prisons, who fears Blair?s promises will lead to further prison overcrowding.