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Saturday, March 10, 2007 

Scum-watch: Lies, damned lies, and "soft" judges.

Do the tabloids ever properly report "controversial" speeches or reports? I only ask because in the reasonably short time I've been writing this blog, I've noticed that so-called journalists in the popular press are addicted to at best distorting what has been said/written and at worst printing out right lies about the arguments being put forward. The previous Audit Commission report on immigration was a case in point: taking slight concerns and magnifying them to such a point that it looks as if the sky's about to fall.

Thursday's speech by Lord Phillips at the University of Birmingham, simply titled Issues in Criminal Justice - Murder, is mostly a discussion about the difficulties in sentencing those convicted of homicide. In it, Phillips' is critical of the mandatory sentences which the 2003 Criminal Justice Act brought in, and analyses the recommendations of the Law Commission (PDF) which suggested introducing first and second degree homicide, similar in some ways to the system in America. The full speech is available here (PDF), clocking in at over 9000 words of scholarly discussion, examining different cases involving murder and how they've been dealt with.

From these 9000 words, the Sun has managed to come out with a story headlined:

Top judge: Let killers out of jail

Let's get the pedantic points out of the way first. Not once in the whole speech does Phillips use the word killers. Nor does he say jail. In fact, nowhere in the entire speech does Phillips so much as suggest that those found guilty should be let out of prison early.

KILLERS should be let out of jail early to ease the prisons crisis, says Britain’s top judge.

No he didn't.

Lord Chief Justice Lord Phillips warned that jails would be stuffed with “geriatric” inmates if no action was taken.

Here's what Phillips' actually says about geriatric lifers:

Most ‘lifers’ are released on licence after they have served a period of imprisonment on the recommendation of the Parole Board. They are, however, subject to recall to serve the rest of their sentence if they breach the terms of their licence. How long they serve before being considered for release is now determined by the judge who sentences them. He has to specify a minimum term which the defendant must serve before being considered for release. In fixing the minimum term the judges have to apply guidance laid down in the Criminal Justice Act 2003. The effect of that Act has been in many cases almost to double the length of time that those
convicted of murder will stay in prison. In thirty years’ time the prisons will be full of geriatric lifers.

Nothing about taking action. Simply a statement that is likely to be proved accurate.

He suggested the country would look back in shame in 100 years time at the length of sentences for killers and rapists — and claimed it was “barbaric” to cage them for so long.

Nowhere in the speech does Phillips use the word barbaric. Here's what he does say about the length of sentences, coming at the conclusion of his speech:

Sentencing is a major topic, and it is too late in the day to embark on it. Let me simply say that I have reservations about the current guidelines. The gap between the 15 year starting point and the thirty year starting point is immense. It is the difference between a determinate sentence of thirty years and one of sixty years. If sentences are to be just, then the effect of mitigating and aggravating factors should be very significant, so that sentences fill the spectrum between these two starting points. I am not sure that in practice they do, and I believe that the starting points are having the effect of ratchetting up sentences in a manner that will be regretted many years hence.

In other words, a highly nuanced and detailed argument which lists Phillips' concerns about how sentences, thanks to this government's kowtowing to the tabloids especially, are getting longer and longer. With a prison population of 80,000, with no sign that it's causing crime to drop, and with evidence suggesting that the overcrowding is causing re-offending rates to soar, it's right to be concerned that we may well be on the wrong track. The introduction of indeterminate sentencing, where someone can be kept in prison for the rest of their life even once they have finished their minimum term if they're considered a danger to the public, is one of the reasons for this leap. The latest statistics released on those currently in prison, from January of this year, makes this point in the summary (another PDF):

The largest proportionate increases since January 2006 were for those sentenced to indeterminate sentences (Life sentences and Indeterminate sentences for Public Protection) which increased by 31 per cent.

There were then 8,750 prisoners serving indeterminate sentences. For a sentence that has only been recently introduced, its use is both worrying and gives the lie to the belief that judges are too soft.

The Sun goes on to quote everyone's favourite rent-a-cop on crime, Norman Brennan:

“Lord Phillips has taken leave of his senses if he believes that releasing murderers early will help alleviate the prison population.

If he had actually said that, he might well have done. He didn't.

He also makes the comment that prisons risk becoming full of geriatric lifers, but that has to be the case if necessary. At least they still have their lives.

Quite right. Keeping men who can't go to the toilet by themselves in prison and who are by that fact no threat to anyone makes perfect sense. At least they have their lives - until they die in their cells, anyway.

The Sun does at least go on to quote Phillips somewhat accurately:

“I’m not in favour of mandatory sentences, full stop. If sentences are to be just, then the effect of mitigating and aggravating factors should be very significant, so that sentences fill the spectrum between these two starting points.

All Phillips is really calling for is for judges to be given the power to once again decide a case by what happened - for every single one is different. With mandatory sentences, this is made much more difficult. Not Saussure goes into this in much more detail.

On then to the Sun's leader:

YOU might think our judges would at least be good at listening.

We should be so lucky.

If you want proof that they are deaf to public opinion just hear what our top man-in-a-wig has been saying.

Lord Chief Justice Lord Phillips believes prison sentences should be shorter. Murderers spend too long behind bars. Parliament should not be able to fix minimum terms.


All he said was he thought we would look back with regret at some of the lengthy sentences now handed down, not that any should be shorter. He didn't say murderers spend too long behind bars. He also didn't say parliament shouldn't be able to fix minimum terms, just that he isn't in favour of mandatory terms. Even then he doesn't say that parliament shouldn't be allowed to set minimum or mandatory terms. Here's what he actually said:

I said that murder is a political hot potato and this is why altering the mandatory life sentence is not on the agenda.

He doesn't like it, but he realises that in the current climate, helped along by the ever increasing shrieks of the Sun, nothing can be done about it.

Lord Phillips should get two things into his skull.

That he is a servant of people who are much more likely than he is to be victims of the very criminals he wants to go soft on.

And that no one elected him.

If this the response that judges get for floating ideas and so much as slightly stepping out of line, it's little wonder that they get fed up with the way they're dictated to both by the media and politicians. Incidentally, no one elected Rebekah Wade. No one voted for Rupert Murdoch. We have to put up with them, just as the Scum has to put with judges daring to suggest that in years to come we might regret our draconian approach to crime.

P.S. Here's the Telegraph on Phillips' speech, which proves that reporting these speeches can be achieved without slipping into faux-outrage, not to mention making things up. The Express, on the other hand, similarly distorted the judge's lecture.

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Thanks for the link. The reason, I suspect, that The Daily Telegraph usually manages to report this kind of story far more sensibly that do most other papers is that Joshua Rozenberg, their Legal Editor, is a barrister and, consequently, probably understands the stories he's reporting rather better than do many other papers' correspondents.

You mention indeterminate sentences for public protection; these are mandated in certain circumstances by the Criminal Justice Act 2003, which not only tells the judge when he consider imposing them but also that, in particular circumstances, he must make various assumptions in favour of imposing them unless he's satisfied that so to do would be unjust. The leading case in which the Court of Appeal tries to make sense of this attempt by Parliament to micro-manage sentencing is R v Lang and others. If you read this, it'll provide an insight into the sort of practical problems that MPs trying to second-guess judges can cause.

The judgment concludes with the observation:

It would be inappropriate to conclude these proceedings without expressing our sympathy with all those sentencers whose decisions have been the subject of appeal to this Court. The fact that, in many cases, the sentencers were unsuccessful in finding their way through the provisions of this Act, which we have already described as labyrinthine, is a criticism not of them but of those who produced these astonishingly complex provisions. Whether now or in the fullness of time the public will benefit from sentencing provisions of such complexity is not for us to say. But it does seem to us that there is much to be said for a sentencing system which is intelligible to the general public as well as decipherable, with difficulty by the judiciary.

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