Sir, The criticism of the sentencing judge in the case of R v Craig Sweeney is misconceived and misdirected (reports, June 13, 14 and 15, and letters, June 14). The problems facing judges are largely the creation of the legislature.
The imposition of the mandatory life sentence for certain “specified offences” was introduced by the Criminal Justice Act 2003. In the context of the case under discussion one of the offences committed became a “specified offence” because the defendant had a relevant previous conviction. So far so good. However, a questionable adjunct to the sentencing provision requires the judge to specify the minimum period for which the offender will be required to remain in prison before becoming eligible for parole.
In calculating this period the judge has to decide what determinate sentence would have been appropriate if a life sentence had not been passed. Normally this period would be equal to one half of this notional term. Further, the judge is obliged to give credit for a guilty plea and apply a discount of one third. Finally, he has to give credit for the time the offender has been in custody awaiting sentence.
In imposing the sentence the judge is obliged to announce not only the actual sentence — life imprisonment — but also the minimum term calculated after discount for plea and time in custody.
The net effect is that a sentence of life imprisonment with the “notional” determinate sentence appropriately discounted, then halved, then reduced for time on remand, gives a wholly misleading picture of the judge’s actual and intended sentence.
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The legislation is to blame.
The criminal justice system has been savaged by complex and meaningless legislation with the result that the sentencing process has become a bewildering minefield. In sentencing, judges do not make the law, they apply it. Their discretion has been eroded; the recitation of sentencing mantras leads to misunderstanding and misguided criticism.
PATRICK HARRINGTON, QC
Crown Court Recorder
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Sir, A number of distinguished commentators have said that the judges should help the Government to navigate the treacherous legal waters instead of “carping from the sidelines” or “acting hysterically” by striking down laws. In the recent debate over the criminal justice system, the broad consensus is that judges should unite with and assist the Government.
Judges have two main, equal, functions. One is to decide disputes between individuals. The other is to hold the balance between the individual and the State. In order to fulfil their second purpose, the judges cannot be a branch of the government.
If judges were a branch of, or even just advisers to, the Government, then they would no longer be judges. The basis of a free society is that the boundaries between the State and the citizen be guarded and protected impartially. The judges watch over and enforce the boundaries. As Lord Devlin noted, they cannot run with the outriders.
ELLIOT GOLD
London W5