Have the judges misjudged Jack Straw's sentences?

An extraordinary row has broken out between the circuit judges and the Lord Chancellor over his plans to set up a sentencing council. The plans are contained in the Coroners and Justice Bill, which completed its Commons stages last night and starts in the Lords on Friday.

The argument is over how much discretion judges will have once the new council is set up. As I say in tomorrow’s Law Society Gazette, the Conservative MP Edward Garnier argued this month that “resource guidelines” to be published by the new council would prevent courts from sentencing offenders to prison or ordering expensive community sentences if there was no money left.

Today, the Council of Circuit Judges described the proposals as “unnecessary, costly and unwelcome”.

Speaking for the 652 Circuit Judges in England and Wales, the council said that the Bill sought to create a sentencing “matrix”. Judges would be required to identify whether individual cases fall within restricted categories within each offence in the matrix.

“Sentencing decisions are then linked to those arbitrary categories. The Bill seeks to remove the discretion of the sentencing guidelines body by requiring it to structure guidelines in a rigid way. The discretion of the sentencing judge is thereby severely limited by the introduction of what are mandatory guidelines which the court must follow or apply in reaching the sentencing decision.”

In the judges’ view, “the imposition of mandatory guidelines may result in injustice to both offenders and victims in individual cases. For example the position of some female offenders, young offenders and those in minority or disabled groups may be prejudiced.” They were therefore “firmly opposed to the introduction of a sentencing matrix and mandatory guidelines” as set out in the Bill and amendments.

“The stated intention of these proposals is to facilitate prediction of the number of custodial sentences," the judges said. “We do not believe that this legislation will achieve that purpose when the sentencing process alone is not the sole driver and comprehensive statistics for prediction are currently available.”

These comments produced an instant response from the Ministry of Justice. “We are not proposing a sentencing matrix or any mandatory guidelines,” a spokesman said, “nor does the Government have any intention of removing judicial discretion from sentencing in individual cases.”

That was followed up within hours by a courteous but firm statement from the Lord Chancellor.

“I share the objections of the Council of Circuit Judges to what they describe as mandatory guidelines ‘which the Court must follow in reaching the sentencing decision’,” Jack Straw said. “But this is not what is contained within the Bill. Only last evening I moved a series of amendments to the original proposals better to underpin judicial discretion, and to ensure greater necessary flexibility for the sentencing court. These were agreed by the Commons.

“In any event the Bill spells out that the sentencing court can depart from the already flexible guidelines ‘where it is in the interests of justice to do so’.

“All through, in what is an important and complex area of the law, I have been seeking to implement the unanimous and majority recommendations of the working group under the chairmanship of Lord Justice Gage.”

Mr Straw said he would be happy to see council members and discuss their concerns.

Sounds like a good move for both sides.

Posted at March 25, 2009 05:01 PM