In the Media

Trial of strength over tougher sentences

PUBLISHED June 22, 2006

The recent disagreements between MPs and the judiciary are nothing new, reports Joshua Rozenberg

A minister goes on the radio and accuses a judge of getting the law wrong. Another member of the Government backs a campaign for tougher sentences. The Lord Chancellor eventually distances himself from his more strident ministerial colleagues, but not before the judges have been left looking exposed and vulnerable.

I refer not to the events of the past 10 days but to the trial of strength between the executive and the judiciary that took place a decade or so ago. It was Michael Howard, then Home Secretary, who went on the Today programme after a judge had decided a case against him in September 1995 to say that the same judge had been found by the Court of Appeal to have been wrong on the last occasion he had ruled against Mr Howard. It was Brian Mawhinney, then Conservative chairman, who told his party conference the following month that people should let judges know if they were dissatisfied with particular sentences. And Lord Mackay of Clashfern was the Lord Chancellor who said three weeks afterwards that Dr Mawhinney "was not seeking to express a policy of Her Majesty's Government".

What, then, are the lessons of history? First, and most important, that it is dangerous for judges to descend too far into the public arena. Senior judges shudder when they recall the decision by Lord Taylor of Gosforth to appear on Question Time while serving as Lord Chief Justice. In contrast to his predecessor, Lord Lane, who never spoke on the record to reporters in spite of the miscarriages of justice that had damaged public confidence in the judiciary, Lord Taylor gave a news conference when he was appointed in 1992.

As Lord Chief Justice, Lord Taylor had regular meetings with Mr Howard at the Home Office, just as Lord Lane had met Douglas Hurd before him. But while Lord Lane never commented publicly on the Government's sentencing policy, Lord Taylor felt that his responsibility was to speak out - perhaps influenced by the fact that the then Labour opposition was keeping a low profile in order not to lose the 1997 election.

In October 1995, Mr Howard launched a series of sentencing proposals, some of which were later adopted by Labour with the consequences that we have seen over the past few days. One plan was that "anyone convicted for the second time of a serious violent or sexual offence should receive an automatic sentence of life imprisonment", with release coming only when they no longer posed a risk to the public.

Speaking at his party conference, Mr Howard said he wanted to hear what the judges thought about his proposals. Within two hours, Lord Taylor insisted that judges should be free to fit the punishment to the crime. "Minimum sentences are inconsistent with doing justice according to the circumstances of each case," the Lord Chief Justice said. "Instead of limiting discretion by introducing unnecessary constraints on sentencing, the police should be provided with the resources they need to bring criminals before the courts in the first place."

Wise words, but it would have been wiser still if Lord Taylor had not knocked Mr Howard off his own story.

A decade on, the judges handle these disputes with a little more tact and sensitivity. While The Sun was naming and shaming "soft" judges last week and John Reid was treating us to his opinion that the life sentence given to Craig Sweeney was unduly lenient, the judges were biding their time. Lord Phillips, the Lord Chief Justice, was attending a conference in Poland, but that did not prevent him from "conveying his concerns" to Lord Falconer and the Attorney General, Lord Goldsmith. Separate representations were made to the Lord Chancellor by Sir Igor Judge, president of the High Court Queen's Bench Division.

Lord Falconer is now in a unique constitutional position. On July 4, he finally gives up his post as Speaker of the Lords. Though shorn of his role as head of the judiciary, he is under a new statutory duty to uphold the continued independence of the judiciary. Does he still have to come to the defence of the judges at times like this?

That's what they think, and Lord Falconer agreed to go on Question Time to say that judges were not to blame for the faults of "the system". The interviews he gave "will have contributed to an improved public understanding of the issues related to sentencing", Lord Phillips said with some satisfaction at the end of last week, adding that the judges were grateful to the Lord Chancellor for putting the record straight.

Lord Goldsmith added his own support for the judges in a speech on Monday, saying that any decision by him to refer a case to the Court of Appeal - or even a finding by the court that a sentence was unduly lenient - "should not be taken as proof that the sentencing judge is unfit and should be disciplined".

The Attorney General referred cases because of concerns about the level of sentences or to achieve consistency, he explained. "This should not be taken as suggesting that in some way judges are generally a soft touch."

While Lord Phillips did not hide the senior judiciary's "grave concern at recent media coverage of sentencing issues", he expressed this concern in a letter to fellow judges rather than in an interview on the Today programme. The Lord Chief Justice cannot have been very surprised that his letter was leaked, but at least he could not be accused of stealing the Lord Chancellor's headlines.

And he had a wider message. "It is quite legitimate for the media and commentators to criticise any particular sentence and the judiciary recognise and accept that," Lord Phillips said. "But they are entitled to expect such criticism to be accurate and objective.

"Personal and unmerited attacks on the characters of individual judges can only damage the public's understanding of and confidence in the criminal justice system as a whole." And that, for now, is as far as the Lord Chief Justice is prepared to go. As he well knows, everyone in the media is keen to interview him about this row. Even a press conference would be standing room only.

But Lord Phillips has learned the lessons of history. He continues to offer his "sympathy and full support", as he did last week, to "judges who have been the subject of unfounded media criticism". But he knows that the much more serious confrontation that his predecessor had with the Home Secretary of the day did nothing to enhance the public confidence in the judiciary that Lord Taylor was so anxious to maintain. Hence, the low profile.

Persuading Lord Falconer to explain that the judges had only been doing their job was a masterstroke. The humiliation of Vera Baird, the junior minister who claimed that Sweeney had been wrongly sentenced, was a bonus. All that's left for Lord Falconer and Lord Goldsmith now is to contain the row that will follow if the Attorney General concludes that Sweeney's sentence was not unduly lenient after all.