Who judges the judges?

The variation in sentences handed down to rioters highlights the broader problem of the failure of self-regulation of the judiciary
August 18, 2011

As with the wider debate over the riots, the debate over the sentences being handed down to individual rioters has quickly polarised. The right continues to defend even the harshest sentences as either deserved, or salutary, or both. Most on the left disagree, seeing too many cases which seem unfair, and fearing that longer sentences will generally be counter-productive.

Forced to choose, I would be in the latter camp. I agree that crimes committed during the riots should receive tougher sentences than similar crimes at other times; and agree too that there was value in some swift and exemplary sentences being handed down—provided the right cases were chosen. But there is a sense, as former Director of Public Prosecutions Ken Macdonald said on the Today programme this morning, that judges and magistrates are being “swept up in a moral panic.” Macdonald also raised a second, separate concern: the variation between sentences. While careful to say he was not aware of all the facts, he said that “wildly different sentences” for relatively similar offences is simply “not justice.”

Neither of these concerns is especially new. The settled view of myself and many colleagues inside the last Labour government was that sentencing exhibited these and other problems on a systemic basis. Magistrates and judges are influenced by media coverage—and at the extreme, can get swept up in “moral panics,” even though they angrily deny the suggestion. There is also an unacceptable degree of sentencing variation. Different sentencers and courts routinely give very different sentences for similar crimes. This isn’t restricted to times of crisis: the only difference is that usually no one notices. Again, the senior judiciary tend to deny this, though their rebuttal is undermined by a lack of familiarity with the actual data.

The third problem can be traced to the broader phenomenon of “sentencing drift.” The Strategy Unit estimated that around half the increase in the prison population since 1995 was due to policy changes—longer sentences for violent and dangerous criminals—while the other half was due to a general upward “drift” in sentencing decisions. The fourth and final problem lay at the feet, not of magistrates and judges, but of government: our failure to coordinate prison building plans with sentencing trends. We were rightly criticised for failing to get out ahead of the rising prison population, with the result that the prison estate was continually managed close to capacity, which in turn led to all kinds of negative effects: prisons “warehousing” offenders rather than rehabilitating them, and ministers being forced into early release schemes which undermined the public’s confidence in the justice system. In the end, ministers (and their advisers) must take responsibility for this, but it is worth noting that the civil service did little to try to change their minds. The settled official view was that prison is not only “poor value for money,” but also similar to roads, in that the only limit on demand is supply. If you build more roads, drivers will simply fill them up; build more prisons, and judges and magistrates (egged on by some politicians) will fill them up too.

The Labour government made a series of attempts to confront these problems in its later years, culminating in the winter of 2007-08 with the proposal of a sentencing “grid,” modelled on the system used in Minnesota and other American states, which greatly constrains—without removing entirely—the discretion of individual sentencers. Rather than merely being given guidelines, sentencers are given a range or “box” within which they can sentence for any given type of crime. Going outside the box is either not allowed, or allowed only in exceptional circumstances, with sentencers having to explain and justify their reasons. Ideally, sentencers and courts should also be required to justify the pattern of their sentencing over time—in other words, whether they are consistently towards the top or the bottom of any given box.

The proposal was roundly condemned. The judiciary succeeded in mobilising a wide range of allies against it. Purists attacked it as a violation of judicial independence; the right attacked it as a back door plan to make sentences softer; the left attacked it as a back door plan to make sentences tougher.

While personally a strong supporter of the grid idea, I understood when Jack Straw decided he could not push it through against such widespread opposition, especially given our diminishing stock of political capital. We fell back on weaker reforms, trying to give the existing sentencing council and its guidelines a little more bite. Unsurprisingly these changes have made little difference. There is still an unacceptable degree of variation in sentencing, evident again during the last week. And upward sentencing drift looks likely to continue, after the predictable failure of Ken Clarke’s clumsy attempt to use deficit politics to argue for reductions in prison numbers.

It is, of course, vital to avoid political interference in individual cases. David Cameron was right to say that politicians should not even comment on them—a principle I hope he sticks to when sentences are criticised as too soft, as well as too harsh. If Cameron’s government has indeed “instructed” magistrates to “jail every defendant,” as Vera Baird has suggested, then that is clearly wrong: unconstitutional as well as unfair. But there is nothing wrong with ministers commenting on the broad pattern of sentences handed down to the rioters; indeed it would be perverse if they did not.

Justice is not unique in needing to keep politics out of the particular, while respecting legitimate democratic interest in the general—whether that is the overall pattern of decisions, or the collective impact of those decisions on society. The same applies to many spheres, including the media, and academia. It is not an easy balance to strike. In the case of sentencing, parliament already determines maxima and minima for different crime types, and ministers are consulted on guidelines. Strengthening these existing constraints into a more formal "grid" may not be the best answer: some will feel that the benefits, in terms of reducing unfair sentencing variation and upward sentencing drift, are outweighed by the loss of judicial discretion in the individual case.

But progressives should not allow the judiciary to close down a new debate on sentencing variation. Judges, magistrates and lawyers will either deny that this unfairness exists, or argue that it isn’t serious; or that if it is serious, it is the price we pay for judicial freedom. This is the same kind of argument we have heard in recent weeks from defenders of press freedom, and though the principle of impartial justice is perhaps even more important, it is similarly vital to ensure that self-regulation actually works—and if it isn’t working, it is right for outsiders to demand that something is done about it.