Transparency and Consistency of Sentencing
Bill Presented — Water Industry (Financial Assistance) Bill
Rory Stewart (Penrith and The Border, Conservative)
I rise with an enormous amount of insecurity because I am talking to so many learned friends on a subject about which I know so little—I feel a little like a woolly mammoth staggering into a law library. My speech is really a series of hints followed by guesses, with perhaps some questions about the relationship of the Sentencing Council to our constitution.
It strikes me that there is a danger with the Sentencing Council that I would love to hear the Government address. It seems—if I may use portentous language—to be a threat to the liberty of Englishmen. I say that deliberately because it does not, of course, apply to Scotland, and I would not presume to speak for Wales. The Sentencing Council is a threat to the liberty of Englishmen because despite its best intentions—we have heard wonderful stuff about predictability, transparency, consistency and public trust—it is attempting to step on sacred ground. It is going where the state and administrators should not go; it is trying to cross the threshold of the courtroom door.
We in Parliament are connected to many things that are to do with the law. We create the law, and we define crimes and the factors relevant to them. We can even state the maximum sentence—or, in exceptional circumstances the minimum sentence—for a particular crime. We should not, however, become involved—and I fear that the Sentencing Council is involved—with the exact processes and factors that operate within the courtroom itself, and in particular with the independence and power of the jury and the judge.
We have heard a certain amount about the independence of the judge, but the most important point concerns the jury, which has a direct interest in knowing the connection between its verdict and the judgment reached. It is difficult for it to see that connection, however, in the current world of the Sentencing Council, which is an astonishingly opaque universe that might appeal to a management consultant or to a Taylorist soap factory. For example, in the case of grievous bodily harm, the Sentencing Council attempts to define nine aggravating factors, three statutory aggravating factors and 25 additional factors, and then to churn the whole thing through a sausage factory of nine different steps until a judgment is produced through that complex algorithm. How is the jury expected to understand the consequences of its verdict on such a judgment?
Purists may say that such things are none of the jury’s concern, and that the jury does not need to know the sentence as its concern is merely with the verdict. However, that has never been true in English common law, which from the beginning has contained the notion of pious perjury—in other words, the jury’s ability not only to determine the verdict, but to have an influence on the sentence. That was important, of course, when the death penalty attached to basic crimes, and it is still important today when we consider issues such as assisted suicide. It is a very important part of our liberty that the jury retains the discretion to affect the decision.
The second set of problems with which we are dealing concerns the independence of the judge. The jury is the preservation of our liberty, but the judge also has two important hands that are manacled by the Sentencing Council. The first is his ability to reach a decision based on the complexity of an individual case. The algorithms produced by the Sentencing Council—the lists of nine or 25 factors—are simply, in its own words, “non-exhaustive” lists of the factors that a judge is supposed to take into account. He is supposed to recognise the individuality of the crime, and the nature and history of the criminal. Those are the things for which we employ a judge—the things that a human is better able to provide than a machine or some checklist produced by the Sentencing Council.
The deeper, bigger problem is that the judge is not simply involved in a forensic investigation. It is not simply a question of fact or the analysis of evidence; at its deepest level, it is a question of morality and philosophy. When the judge determines a sentence, he is supposed to take on board not simply the crime and the history of the criminal but all the issues that we have heard about today—deterrence, public protection and justice in its broadest sense. They are not instrumental or factual questions but normative questions of morality and philosophy. Those things cannot be outsourced to a Sentencing Council that wishes us to tick boxes.
The defence of the Sentencing Council—that the guidelines are not mandatory—is of course deeply disingenuous. It is only under the most exceptional circumstances that judges can depart from them. Let us therefore remember that the reason why we have for so long protected the independence of the jury and the judge in English common law from exactly that type of administrative state interference is that we are English, not French. Such interference is a very Napoleonic approach, implying that the administrative state, with its astonishing mathematical formulae and algorithms, can generate the appropriate sentence within the hallowed space of the courtroom.
We must fight against that, because from the very foundation of our jury system, the basic principle of English common law has pushed against the idea of learned experts with their technocratic micro-management and instead recognised, since the early mediaeval period, the importance of even semi-literate jurors. The qualities that we look for in justice are not those of mathematical precision and science but those of common sense, human relationships, understanding and fellow feeling. In the judge, we look not simply for his learned nature, but for his compassion, philosophical insight and morality.
I conclude with a small reference to Blackstone. However convenient the new methods of trial may at first appear—indeed, all arbitrary methods are convenient at their first appearance—let it be remembered that the delays and minor inconveniences in the forms of our justice are the price that a free nation pays for its liberty in more substantial matters.