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April 6, 2010

New UK sentencing structure attacked for giving judges too much discretion

The title of this new piece in The Guardian caught my eye because I thought the federal sentencing system was being discussed under the headline "Judges given free rein by 'pitifully loose' sentencing law."  But, as this excerpt shows, the article concerns new UK sentencing law:

New legislation guiding judges on sentencing criminals is so "pitifully loose" that judgments could become idiosyncratic and inconsistent, according to the head of the Sentencing Advisory Panel. Professor Andrew Ashworth struck out at the government on the eve of the panel's replacement today by a new body, the Sentencing Council.

In an interview with the Guardian, Ashworth called the new council "defective". He said the legislation dictating its powers and responsibilities "dilutes and even trivialises the proper approach" to the rule of English law. Ashworth, the Vinerian professor of English law at the University of Oxford, accused the government of "changing course in response to judicial opposition to the creation of the new council".

He said the government has given judges a virtually free rein in deciding what sentence to hand down. "It's not democratic. It is about retaining the confidence of the judiciary, who were concerned that the new council would threaten what they consider to be their independence, at the cost of reducing the effectiveness of the guidelines," he said.

"The whole idea of guidelines has been undermined. The purpose of guidelines is to steer judges along particular channels but the new legislation is destructive because it hardly binds judges at all. It is possible that the new legislation will lead to the sort of idiosyncratic sentencing that used to cause people such worry. It depends on how tightly the court of appeal polices things, but under the new statute as we now have it, that is a possibility."

April 6, 2010 at 12:41 AM | Permalink


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When the proposal to limit cult criminal hierarchy sentencing discretion is in a Commie front propaganda organ, it merits a full posting. When it comes from a commenter/ambassador from the planet earth to this lawyer Twilight Zone, it is shunned. And, the ambassador from reality is called bad names.

Thanks to these biased cult criminals, Britain is the most dangerous Euro trash nation. It is more dangerous than South Africa, and many bad parts of the US. Empowering these internal traitors is a formula for catastrophe. They crush homeowners protecting their property against home invaders, and coddle ultra-violent hooligans, murderers, and terrorists.

These judges are law technicians, worthless, lazy, government workers. They should have no discretion. If they whine and complain, fire them. Replace then with any puking wine besotted bum off the gutter for an immediate upgrade in common sense, correctness of decisions, and clarity of writing.

Posted by: Supremacy Claus | Apr 6, 2010 2:10:00 AM

"It's not democratic. It is about retaining the confidence of the judiciary, who were concerned that the new council would threaten what they consider to be their independence."
If by that,Professor Ashworth means that the judiciary have resisted the inclinations of politicians to meddle even more than they already do in sentencing policy - according to the pressures of tabloid newspapers after every high-profile incident, then they are to be heartily congratulated in their achievement.
The US has demonstrated, very ably, the dangers of that slippery path. The independence of the judiciary is one of the most valued features of English Law and the English judicial system. Long may it last!
There can be nothing more democratic than maintaining a balance between the powers of the state as represented by the ruling politicians of the day, and the powers of the judiciary.

Posted by: peter | Apr 6, 2010 7:42:17 AM

Yes, but the judiciary looks out only for itself, so judicial independence is worthless to the public. Judicial review itself violates Article I Section 1 of the US constitution. Its origin was also quite shady. It is such a big subject, it deserves a public debate and thoughtful consideration, as happens during the passage of a constitutional amendment.

Posted by: Supremacy Claus | Apr 6, 2010 9:42:54 AM

Claus - in respect of English Law and practice, what seems to have happened is the opposite of what you are suggesting. A long established principle and practice is being maintained - not a change as would be preferred by Professor Ashworth and the politicians he represents. Judicial independence is at the heart of the English legal system. That has been largely given up by the US judiciary, with even the Supreme Court deferring, very often, to the political wings. Much of English Law could be said to have evolved from judicial activism in the UK. That is a strength that would be feared today in the US - with its now deeply entrenched politicized judiciary. How to disentangle the two is a major problem for US judicial systems and justice. You simply cannot complain of either liberal judges or conservative judges yet embrace a system in which they owe their positions to one or other of the political wings. The loss of independence has been a heavy price to pay. Justice is in the eye of the political allegiance you hold to - not a result we would wish to see in the UK.

Posted by: peter | Apr 6, 2010 10:10:57 AM

"There can be nothing more democratic than maintaining a balance between the powers of the state as represented by the ruling politicians of the day, and the powers of the judiciary."

There can be nothing less democratic than shifting the balance of power in sentencing law away from people who are elected and toward people who aren't.

And let's be honest: If most of the people here thought increasing judicial power was going to mean HIGHER sentences instead of lower ones, they'd be howling at the idea.

Posted by: Bill Otis | Apr 6, 2010 3:14:03 PM

The funny thing about elections is that half the population are never happy with the result .... until the cycle turns in favor of the other side. Hence, the outrages we hear about from time to time on this blog and elsewhere when decisions do not go the way you think they should. As I said, disentangling the US judiciary from political patronage would be a nightmare ... but not impossible. The sooner it starts the better.

Posted by: peter | Apr 6, 2010 4:20:05 PM

peter --

Is there a law other than sentencing law where you would shift power away from electoral processes and toward judicial (and therefore non-ballot-box-accountable) processes?

P.S. I see that Gordon Brown has called the election for May 6. Who's going to win?

Posted by: Bill Otis | Apr 6, 2010 5:04:49 PM

"shift power away from electoral processes and toward judicial (and therefore non-ballot-box-accountable) processes?"

That's a red herring and you know it. At least in the USA, these judges are still appointed by the political branches.

OTOH, I don't agree with Peter that a "politicized" judiciary is a bad thing. In the sense Peter seems to mean it I agree with Bill that it's anti-democratic.

But then I fundamentally don't have a problem with a law that's idiosyncratic. I think that's just where the law starts.

Posted by: Daniel | Apr 7, 2010 1:20:17 AM

There is an obvious distinction between the democratic right of legislators (ie politicians) to change, add or remove law .... and the (independent) judicial responsibility to apply the law in the interests of justice and humanity. When politicians want to shackle the latter, they have crossed the line to something intrinsically undemocratic. Remember the outcry in Pakistan when the government sacked the senior judiciary to install their own? Governments (politicians)who have too much power in respect of the judiciary are but a whisker from dictatorship. It matters not that they may have been voted in by 1 or 1 million. The ballot box on its own does not constitute a state of democracy. As for the UK election .... the odds are a hung parliament (no overall majority) and therefore a political deal with the third party, the Liberal-Democrats, by either the Conservatives (favorite) or Labour party. But this is probably the most unpredictable election I have ever experienced. I don't expect Gordon Brown to be Prime Minister after May 6th, but stranger things have happened in UK politics.

Posted by: peter | Apr 7, 2010 4:18:39 AM

"The ballot box on its own does not constitute a state of democracy."

That's...rather...startling. Ok. I'll bite. What does then?

There is an obvious distinction between between the sacking of judges in Pakistan and what is going on in Britain and the USA. In Pakistan that was a naked power grab that did not follow any legal or democratic norms. To equate that situation to what is happening in the West is bizarre.

Posted by: Daniel | Apr 7, 2010 11:07:52 AM

In Europe, the European Court was created to act as a ‘check and balance’ against the governments of member states. In the UK, the House of Lords, together with the Judiciary, act together, and now with the European Court, to ensure that 'check and balance'. In the US, the Constitution was written giving separate powers and responsibilities in a tripartite system of governance.
Each region claims to be a democracy, but none relies entirely on the ballot box to achieve it. In your eyes that may make each an imperfect democracy, but without those added elements to represent and safeguard the interests of each individual, the majority, or rather their elected representatives, would have the potential to rule in tyranny against the minority, however large or small. A true democracy therefore incorporates structural safeguards that owe nothing to the ballot box but which serve to ensure, so far as is possible, that individuals are protected within a fair and just framework of law. As I have explained before, those safeguards are eroded when that structure is itself eroded by political stealth. The coming debate about a replacement for Justice Stevens, just as that for new members before, will bring about charges of political bias, just as there are arguments of the same ilk with the presently constituted court. That is a poor reflection on the intended independence of the Supreme Court, and weakens its authority and function. Similarly in lower courts.
If democracy is to achieve its purpose for everyone, then the important unit is the individual, not a political party. In any democracy, vast numbers of people are inevitably denied access to the ballot box ... children, the sick perhaps, some immigrants; in the US, those convicted of crime (of which there are how many millions?).
You may not choose to recognize the filling of a Court with politically sympathetic individuals as a "naked power grab", but in truth that is exactly what it is.

Posted by: peter | Apr 7, 2010 4:16:35 PM

Peter. I would agree with you that it a power grab, just not a naked one. But from my perspective that's what happens in all events.

You write "would have the potential to rule in tyranny against the minority.."

But that's always the case. The very idea of a "checks and balances" is the opinion of a majority imposed on the will of a minority. There is nothing inherent in the nature of democracy that requires that. In that regard I don't see a system of checks and balances as an "imperfect" democracy so long as that represents the will of the majority. In other words, if the majority wishes to limit itself (by giving rights to a minority) that one thing; but no minority can impose that on a majority. If they could, you would now have an oligarchy or a monarchy.

At the end of the day, the week, the month, the year the de facto majority of a community always imposes its will on the minority. It can't help but do anything else.

Posted by: Daniel | Apr 8, 2010 1:04:32 AM

What we seem to differ on is the degree of absoluteness of the power of the majority to exert its will on the minority. You seem ready to accept that the role of the Courts is to reflect, unquestionably and without power to resist, the will of an elected political body. Maybe in a perfect world that would be acceptable ... but the aims of political bodies are limited to short term gains and the power to govern over others. The point about a counter, stable Judicial body is that it should be able to ensure that such great powers cannot be used oppressively against individuals, whatever their political allegiance. There can be no confidence that such Judicial body is performing that task when its membership is beholden to political association through election. It should also be recalled that most voters at the ballot box are expressing with their vote a preference of balance, not a total endorsement of the aims and policies of any one party or individual. Without a strong independent legal establishment that can on the one hand challenge and resist the worst excesses of Government, as should have occurred for example over the use of torture, or the excesses of intrusion against the privacy of individuals, both of which occurred during the last administration, tyranny is truly the result. The complacent view that politicians and political parties can be trusted to act with respect for the law and for the interests of individual citizens at all times, is both frightening of itself, and contributes to the weakening of the resolve of the legal establishment to resist. It is a brave or foolhardy prospective Judge who today campaigns on a platform of independence from conservative or liberal influence. Except of course for the role of Supreme Court Justice .... but then of course they have already sold their soul to reach that position. The intended role of the US Constitution has been neutered by a loss of sovereignty of the Supreme Court, and by that institutions resistance to adapt its interpretation of the written words to meet evolving social, political, economic and ethical developments in the modern age. Whether the failings are the result of an imperfectly written Constitution, of the weaknesses of individual Justices, of inappropriate political pressure, or the submissive, ignorant or apathetic public, is for you to judge. Much of America, and indeed much of the world, was frightened by the excesses of the Bush administration .... it came that close and perhaps beyond to representing a political tyranny. Of course, some memories quickly fade.

Posted by: peter | Apr 8, 2010 2:52:52 AM

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