“There appears to be a disconnect between the public's common sense view of right and wrong and how it sees that reflected in judicial decisions” according to the Prime Minister’s spokesman yesterday, referring to the five year sentence handed down to paedophile, Craig Sweeney. Disconnect there certainly is, though I’m not sure common sense comes into it.
It seems that a Downing St factotum can now second-guess the judiciary with impunity. And only a day after the Attorney General himself, Lord Goldsmith, had censured the Home Secretary, John Reid, for doing the same thing. This looks like war.
Couldn’t happen here of course. Scottish judges are jealous of their privileges and no mere minister, or newspaper editor, would dare to second guess them. Well, think again. In fact it is happening here. Not only are politicians second-guessing judges, they are threatening them with the sack.
In a recent consultation paper, the Justice Minister, Cathy Jamieson, proposed disciplinary action for judges and sheriffs who are too lenient. Sanctions which could be imposed on judges or sheriffs would include a formal warning, a reprimand, transfer to another court or an order to undertake "judicial studies or training". They're expected to feature in a forthcoming bill.
North and South of the border, there is a full frontal assault on the principle of the separation of powers. Indeed, the government seems to have decided that the judges are the new class enemy. The Prime Minister has expressed contempt for “liberal” judges who have criticised his anti-terrorist legislation. One Law Lord suggested that the government was more of a threat than the terrorists.
But in taking on the courts directly in the Craig Sweeney case, Dr John Reid has escalated the conflict. Reid felt that five years was too short and said so. The Attorney General, Lord Goldsmith, replied the Home Secretary’s intervention was “not helpful” - which, roughly translated, means “get your tanks off my lawn, Jimmy”.
But there are a lot of people in the legal profession in Scotland and England who believe that the tanks have already flattened the constitutional separation between the judiciary and the government . Roy Martin, the Dean of the Faculty of Advocates believes that the Scottish Executive is introducing political direction in a way that would have been unthinkable ten years ago.
The Executive is setting up an independent appointments board for judges, which sounds benign but isn’t . Appointments to the board will be made by Scottish ministers. It will be Judge Jack decides who sits on the bench. The fear is that the FM will ensure that, in future, judges are only selected if they have the “right stuff’, and approve of things like mandatory minimum sentences, abolition of early release of prisoners and tightening up the bail regime so that murder suspects can’t go on holiday to Bulgaria.
But does this matter? Should we worry? Why should judges be able to sit in their ivory towers handing down judgements which don’t find favour with the public or politicians? Why should judges be above the law?
Well, think about the alternatives. If politicians make the law, which is what increasingly seems to be happening, then the law will become the hostage of yesterday’s newspaper headlines. Politicians live in the short term. They don’t have time to reflect on the significance of any particular ruling - they just want to look and sound tough on crime, and aren’t particularly bothered about the complexities of the case.
Take Craig Sweeney. Appalling crime, undoubtedly. Kidnapped and raped a three year old girl. Bang him up and throw away the key. In fact, it’s not quite as simple as that. Sweeney was given an 18 year minimum sentence for his crime, but he got a discount of one third in mitigation for pleading guilty without reservation, and for expressing extreme remorse. That’s the law.
The headline five year sentence was actually twelve years, (taking account of the time he had already spent in prison on remand) with the possibility of release after six. But Judge John Williams told Sweeney that it was very unlikely that he would be let out after six years. So, already, this isn’t quite the absurdly lenient sentence that got the tabloids into such a lather.
Now, perhaps you believe that even the possibility of a paedophile getting out after six years is unacceptable for a crime of this magnitude. But such an approach would make a nonsense of the policy of rehabilitation. It also makes little sense when the prisons are so overcrowded that the Home Office and the Scottish Executive are planning for the “administrate release” of thousands of prisoners to make room for the thousands who are being banged up. (Contrary to popular belief, the courts in Scotland are handing out much tougher sentences, which is why there is up to 65% over crowding in Scotland’s jails).
Now, both in Scotland and England - cases like that of Craig Sweeney are reviewed by judges on the appeal court. And indeed only last month, another paedophle, Alan Webster, had his jail term increased from six to eight years by the Lord Chief Justice, Lord Phillips. There is already a machinery for reviewing light sentences.
But the Lords of Appeal are too slow for Judge Reid - he wants action this day, in order to appease the High Court of Fleet Street. The risk is that newspapers are effectively handed the final say on sentencing. Cathy Jamieson’s proposal for disciplinary action for lenient judges came after the appeal court refused to increase the three year jail sentence imposed on Steven Weir last year for knife crime.
A series of newspaper stories of lenient sentences like that one convinced the Scottish Executive that they needed, effectively, to have the power to direct the courts. And make no mistake this is what is happening. The forthcoming Sentencing Bill will end automatic early release. Indeed, Cathy Jamieson appears to be calling for mandatory sentencing. Sentences, she says, should “mean what they say”. The Scottish Labour Party is planning to make this a major plank of their campaign for the Scottish parliamentary elections next May.,
Now, I don’t have a lot of time for judges myself - they are often out of touch, conservative and insufferably pompous. But speaking personally, I’m not sure that I am better equipped than they are to decide on important matters of law which could affect the lives, not just of the people involved in any particular case, but the people affected by the consequences of any rush to judgement. Like any other father, I become slightly irrational whenever paedophiles rape children and tend to think that hanging’s too good for them. However, the law is the law. If politicians and journalists make it up as they go along, then we go to hell in the proverbial hand cart.