I regularly drop in on "The Magistrate's Blog" (see link below; the lawwestofealingbroadway), because I find what Bystander has to say is usually thought-provoking. Comment-provoking, too. Some of the comments he attracts either seem to expect the judiciary to have a society-focused agenda or complain that we are an arm of the nanny state, interfering unjustifiably in peoples' private lives.
It might help to see what we commit to on appointment. Every magistrate has to swear the Judicial Oath - so does very judge, but with appropriately amended wording. The oath is as follows:
I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of Justice of the Peace and I will do right to all manner of people after the laws and usages of the Realm without fear or favour, affection or ill-will.
In other words:
We serve the Crown, not the government of the day.
We apply the law as it is enacted, not as we wish it were.
We will do so impartially, striving always to recognise and set aside our prejudices and preconceptions.
This is an absolute obligation. If we encounter a piece of legislation which we strongly oppose, we have only one remedy; resign from the bench. Many people did resign at the introduction of the poll tax; a small number have left as a result of the recently introduced victim surcharge.
Showing posts with label judicial independence. Show all posts
Showing posts with label judicial independence. Show all posts
Tuesday, 7 August 2007
Thursday, 10 May 2007
Ministry of Justice?
I’ve been reflecting on the subject of yesterday’s post, the creation of the Ministry of Justice. The more I think about it, the more concerned I become.
When, suddenly and without regard to its long and distinguished pedigree, the government announced the proposed abolition of the office of Lord Chancellor, and immediately replaced the Lord Chancellor’s Department with the Department of Constitutional Affairs, the justification put forward was the need to secure a proper separation of powers between the executive and the judiciary. With the subsequent creation of Her Majesty’s Courts Service, bringing the judges and magistrates under one roof for the first time, responsibility for the judiciary passed from the Lord Chancellor to the Lord Chief Justice.
Much as I will regret the disappearance of the office of Lord Chancellor (if it ever happens), the objective, separation of powers, I see as entirely laudable. It is the job of parliament to enact law, and the duty of the judiciary then to uphold and apply that law, at the same time treating each case on its individual merits. It is not for the executive to micromanage the way in which judges and magistrates carry out that duty.
It seems to me, however, that the new Ministry of Justice represents a retrograde step so far as the separation of powers is concerned. The Secretary of State for Justice is charged with responsibility provision and administration of the court system, the prisons and the probation service; the head of the judiciary, responsible for the delivery of justice in individual cases, remains the Lord Chief Justice. Well and good, but the Secretary of State takes up his duties with a prison service under severe strain and a probation service which is seriously underfunded. Both of these organisations face difficulties in providing the courts with the service which they need effectively to carry out their responsibilities. And the response? On the very first day of its existence, the head of the Ministry of Justice, Lord Falconer (the executive arm), announces his intention to restrict the use of custody, suspended or immediate, by the magistrates (the judicial arm). Thus, the very person who argued so persuasively for strengthening the separation of powers now proposes on his first day in office to blur or diminish that separation. The reason, moreover, is not that he considers that we are acting perversely or in bad faith, but rather that one of his departments is in a financial mess and so he wants to take some of the pressure off it.
All of this is justified on the basis that community penalties address reoffending more productively than custody, as if the only purpose of sentencing was to reduce reoffending. I don’t want to get onto the subject of the various other purposes of sentencing today, but I think I may well post something on that subject in the not too distant future.
For today, suffice it to say that I fear that the creation of a Ministry of Justice in its present form, may yet herald far greater interference by the executive in the delivery of justice. I’d particularly welcome comments on this from anyone reading this post.
When, suddenly and without regard to its long and distinguished pedigree, the government announced the proposed abolition of the office of Lord Chancellor, and immediately replaced the Lord Chancellor’s Department with the Department of Constitutional Affairs, the justification put forward was the need to secure a proper separation of powers between the executive and the judiciary. With the subsequent creation of Her Majesty’s Courts Service, bringing the judges and magistrates under one roof for the first time, responsibility for the judiciary passed from the Lord Chancellor to the Lord Chief Justice.
Much as I will regret the disappearance of the office of Lord Chancellor (if it ever happens), the objective, separation of powers, I see as entirely laudable. It is the job of parliament to enact law, and the duty of the judiciary then to uphold and apply that law, at the same time treating each case on its individual merits. It is not for the executive to micromanage the way in which judges and magistrates carry out that duty.
It seems to me, however, that the new Ministry of Justice represents a retrograde step so far as the separation of powers is concerned. The Secretary of State for Justice is charged with responsibility provision and administration of the court system, the prisons and the probation service; the head of the judiciary, responsible for the delivery of justice in individual cases, remains the Lord Chief Justice. Well and good, but the Secretary of State takes up his duties with a prison service under severe strain and a probation service which is seriously underfunded. Both of these organisations face difficulties in providing the courts with the service which they need effectively to carry out their responsibilities. And the response? On the very first day of its existence, the head of the Ministry of Justice, Lord Falconer (the executive arm), announces his intention to restrict the use of custody, suspended or immediate, by the magistrates (the judicial arm). Thus, the very person who argued so persuasively for strengthening the separation of powers now proposes on his first day in office to blur or diminish that separation. The reason, moreover, is not that he considers that we are acting perversely or in bad faith, but rather that one of his departments is in a financial mess and so he wants to take some of the pressure off it.
All of this is justified on the basis that community penalties address reoffending more productively than custody, as if the only purpose of sentencing was to reduce reoffending. I don’t want to get onto the subject of the various other purposes of sentencing today, but I think I may well post something on that subject in the not too distant future.
For today, suffice it to say that I fear that the creation of a Ministry of Justice in its present form, may yet herald far greater interference by the executive in the delivery of justice. I’d particularly welcome comments on this from anyone reading this post.
Wednesday, 9 May 2007
Suspended Sentences
The new Ministry of Justice, I read, launched today with an announcement that the Secretary of State will seek to restrict the use of suspended sentences, in order to reduce the number of offenders being imprisoned. Obviously, Lord Falconer does not understand his own government's legislation.
The Criminal Justice Act 2003 effectively reinstated the suspended sentence which had virutally fallen into total disuse. The Act had in mind reducing the number of people going to prison. Now, we are told that restricting the use of suspended sentences will reduce the number of people going to prison. Diametrically opposed actions; same outcome. It doesn't make sense.
What's more, the new approach won't work. In order for a custodial sentence to be passed, the court must be satisified that the offence is, in the words of the guidelines, "so serious that only a custodial sentence will suffice". In other words, the courts cannot increase the severity of a community sentence by attaching a suspended prison sentence; the offence itself must merit custody. HOWEVER, the 2003 Act introduced a new requirement on the sentencing court. Having satisfied itself that the offence was indeed "so serious", it now had to ask itself "Can this custodial sentence be suspended?" If it can, then suspended it must be.
So, if the use of suspended sentences is once again restricted, the effect will be to send more people not fewer to prison, because if custody cannot be suspended, it must be served immediately.
I know it sounds like special pleading, but I really do think it would be better if the politicians left sentencing to the judiciary. We, at least, have taken the time and trouble to study the detail of the legislation and given careful thought to how it should be implemented.
The Criminal Justice Act 2003 effectively reinstated the suspended sentence which had virutally fallen into total disuse. The Act had in mind reducing the number of people going to prison. Now, we are told that restricting the use of suspended sentences will reduce the number of people going to prison. Diametrically opposed actions; same outcome. It doesn't make sense.
What's more, the new approach won't work. In order for a custodial sentence to be passed, the court must be satisified that the offence is, in the words of the guidelines, "so serious that only a custodial sentence will suffice". In other words, the courts cannot increase the severity of a community sentence by attaching a suspended prison sentence; the offence itself must merit custody. HOWEVER, the 2003 Act introduced a new requirement on the sentencing court. Having satisfied itself that the offence was indeed "so serious", it now had to ask itself "Can this custodial sentence be suspended?" If it can, then suspended it must be.
So, if the use of suspended sentences is once again restricted, the effect will be to send more people not fewer to prison, because if custody cannot be suspended, it must be served immediately.
I know it sounds like special pleading, but I really do think it would be better if the politicians left sentencing to the judiciary. We, at least, have taken the time and trouble to study the detail of the legislation and given careful thought to how it should be implemented.
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