Judicial Failure To Punish
Common Law Criminals (17-Jan-18)

Common Law criminals, those people who attack the person or property of others, are:

'A mockery of justice'
by Melanie Phillips The Sunday Mail, 15th May 2005

Outrage over perceived lenient sentencing is not confined to Queensland. Here, Melanie Phillips, a columnist for London's Daily Mail, says that in Britain it amounts to nothing less than a subversion of justice [injustice].

One of the key public concerns voiced in Britain's election campaign was the unacceptably high crime rate.

Long-suffering communities believe that not only are they suffering from endemic crime and disorder, but also that criminals are not dealt with effectively even when they are caught.

A senior police officer has lent his authority to the suspicion that the courts have lost the plot.

Paul Kernaghan, chief constable of Hampshire, made the remarkably outspoken charge that judges and magistrates appear more concerned with the needs of criminals than their victims, and in particular refuse to lock up serial offenders.

He highlighted the case of a criminal in his area who, despite having 120 previous convictions, was sentenced to a mere 14 days in jail.

In an alarming number of cases, serious repeat offenders are not even sent to prison.

One teenager who was caught trying to sell heroin and crack cocaine was given a two-year supervision order after the judge said he was "giving him a chance". Another judge told a pair of serial criminals with more than 100 convictions between them that he would not jail them because it would cost too much money and previous sentences had not stopped their crime spree. So for attacking a woman and stealing her pension money, they walked away with rehabilitation orders and community punishments.

In an appalling case a man was finally jailed for murdering two sisters and an elderly couple after having previously been given only a community sentence and probation for the vicious knife attack.

It seems scarcely credible that such criminals are being given such derisory sentences that bear no relation to the gravity of their crimes, and that judges are failing to lock up people who pose a danger to the public.

The judges protest that they are not soft-sentencers at all, and point to the fact that Britain imprisons more people than any other European country. This claim is disingenuous.

True, Britain jails more people per head of population than in the rest of Europe, but that is because it has far more crime than those countries. So it's not surprising more people in total are locked up.

The much more telling question is whether Britain jails those who commit that crime as often as other countries jail their criminals. And here the figures show Britain's rate of imprisonment per crime is well below the European average.

So faced with one of the highest crime rates in the industrialised world, British courts are jailing people less frequently. Might there not be, just possibly, a connection between the one trend and the other?

Moreover, criminals whose sentences have already been significantly reduced for bureaucratic reasons are having them cut again. New guidelines mean the courts will cut 15 per cent off the sentences of criminals such as burglars, thieves or dangerous drivers who are thought to pose no risk of violence to the public.

But what about the risk of their committing another crime, a risk removed while they are in jail — one reason for sending them there in the first place?

Such a lack of transparency, with sentences that bear no relation to the penalty imposed, is inimical to the very concept of justice and brings the system into disrepute.

So what is causing judges and magistrates, supposedly pillars of a prudent establishment, to behave in such an irresponsible way? As Mr Kernaghan suggested, one reason is their obsession with keeping down prison numbers because of chronic overcrowding.

No one disputes this is a serious problem, but the obvious solution is to build more prisons.

Instead, the bureaucratic tail is wagging the criminal justice dog.

As Mr Kernaghan said, if someone needs to be locked up, it is absurd not to do so because no cell is available. Yet the justice system suspends punishment because there is not enough capacity.

That is not the only reason. For like so much of the criminal justice establishment, the judges are gripped by a visceral distaste for prison.

Britain's Lord Chief Justice, Lord Woolf, has repeatedly advocated community sentences for non-violent offenders. This is because of a belief that prisons are "universities of crime" that make bad people worse and thus even more likely to commit offences.

So community sentences are considered more effective. However, the evidence contradicts this: neither prison nor community sentences has much success in preventing criminals from committing more crime. But at least while criminals are in prison, the community has some relief from their activities; and at least these offenders are being punished. But then, to the criminal justice establishment, the notion of punishment is viewed with contempt; as no more than a primitive lust for vengeance and uncivilised.

Yet inflicting a measure of pain commensurate with the crime is an essential part of justice. No punishment, no justice. As any parent knows, punishment for misdeeds is an essential part of how a child learns to tell right from wrong and becomes a civilised human being.

Hence, no punishment, no civil society. At a deeper level still, much of the judicial system, like the prosecution service, the probation service and even some of the police, believes either that nothing can be done to change people's behaviour because criminals are formed by factors beyond their control, such as poverty or childhood abuse, or that only psychological treatment will work.

There is no evidence psychological treatment works. What this judicial elite refuses to accept is that crime results from a moral breakdown, and that it is only when prison is combined with attempts at moral improvement, such as drug treatment or education — unfortunately too often absent — that the best chance occurs of turning that behaviour round.

Sentencing is not the only aspect of the criminal justice system that has lost its way. Few crimes end up being prosecuted because at every stage the system fails, including the police.

Britain's criminal justice system is mired in a combination of bureaucratic inertia, political pusillanimity and ideological perversity.

Citizens run the gauntlet of a crime wave dismissed as an exaggeration by an out-of-touch establishment that regards calls for imprisonment as evidence of unsophistication. Accordingly, it delivers a sentencing policy that enables criminals to thumb their noses at the system, and increasingly makes a mockery of justice itself.