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Neither moral nor just

The problem with Britain’s sentencing disparities

Artillery Row

My object all sublime,
I shall achieve in time —
To let the punishment fit the crime.

The person speaking here is the eponymous Mikado, but these are wise words to apply to any sovereign. They do not, regrettably, fit His Majesty all that well. In a constitutional monarchy, we can’t lay the blame at His door directly — but we can lay it with some of His Majesty’s Judges. Parliament is not getting off blameless in this one either.

Two scenarios: A father beats his daughter with an iron bar. A publican puts a football match on a pub television without paying for it. Pretend you’re the Mikado: which punishment fits which crime?

If you were thinking that the father goes to prison and the publican doesn’t, then you’re never going to be a judge. If, with utter moral inexplicability, you were thinking the reverse, a place on the bench awaits. That is exactly what happened.

Is internet piracy on the same moral plane as beating a girl with an iron bar?

The reason why this mess has come about has been a long time simmering. It’s an admixture of two things that, in all probability, no one ever expected to interact. The first is a failure of His Majesty’s Judges to realise that His Majesty is parens patriae. Like the Mikado, he is “father of the nation”, the parent to those without parents. At the Coronation he was instructed to “help and defend widows and orphans”. To His Majesty, and then to the judges who act in His name, falls a very solemn duty: sometimes to be a strict parent.

In the case of the father with the iron bar, the judge put great weight on the views of the victim — which is ordinarily correct. The King’s Justice exists, partially, to vindicate victims so their views must be front and centre. It has another purpose, though, and this is where the ultimate parent weighs in: to keep the King’s Peace (and “His Crown and Dignity”, to use the full ancient phrase). In that case the judge should have, with great care, changed modes and, as the avatar of the parens patriae, decided that the punishment needed to fit the crime. Why? To dissuade others from similar, mediaeval thinking about the autonomy of their own children. The ultimate parent needed to “punish and reform what is amiss” (also from the Coronation).

Judges do sometimes try to reform what is “amiss” — especially when a powerful organisation is lobbying for it. Many talk of regulatory capture in the sense of rent seeking, and that does happen. It also happens in criminal law. Parliament has, at the behest of one of the most powerful lobbies that exist, enacted that the criminal sanctions for theft of intellectual property — what is so darkly called “piracy” — shall be severe. The intention of Parliament is simple, just as the tough parent dissuades its children: you and I should be dissuaded from committing IP crimes.

By and large, this has failed. The Internet is awash with piratical ways to watch this film or that football match. Legislatures around the world have responded with ever harsher and ever more bespoke penalties. True, they are targeting a crime. Is it on the same moral plane as beating a girl with an iron bar, though?

Judges take their steer from Parliament — and also, of course, from their former time at the bar. They see Parliament, and even other legislatures around the world, reacting with ever increasing force against IP crimes. They may even have prosecuted or defended some. So, entirely naturally, they follow suit in the sentences they impose.

The same judges get no steer from anywhere that they also need to act as representatives of the parens patriae. They ought to keep ensuring the punishment fits the crime even for the things without a powerful lobby and an army of lawyers.

This comes down to a complete moral failure, not a legal one. The law (almost) always provides for simply a maximum sentence and leaves it up to the judge on the day. There are good reasons for this. Mandatory minima are a vice in and of themselves, and hard cases always make for bad law. There is always that one exception.

The corollary of giving that freedom is that HM Judges need to use it correctly. They need to see that, as representatives of the King, the King’s Justice requires fathers who beat their daughters go to prison, and go to prison for a long time — for a longer time than those who “steal” a football match stream. They need to see that whilst a purely economic loss is bad, it is on any metric much less bad than a violent assault.

Suspended sentences for the morally bankrupt abound

These two cases are stark examples of a deeper problem in sentencing. The whole approach has gone utterly out of kilter. At the extreme end, we have an effective yet quasi-secret, judge made rule that whole-life orders don’t exist outside of murder. Hence Carrick, a man whom the parens patriae should ensure is permanently removed from society, was given a minimum term, not a whole life order. The failure of judicial morality runs very deep, and it is very pervasive.

Suspended sentences for the morally bankrupt abound. For inexplicable reasons (I know the reasons, and they remain inexplicable), we have a fake-manslaughter offence called “death by dangerous driving”. As a result, the King is unable to properly ensure that the punishment for killing via a four-wheeled steel box properly fits the crime. Worse still, the existence of this offence acts as a steer to the judges to impose very light sentences. After all, if Parliament has seen fit to make it “not-manslaughter”, we should not sentence it as such, runs their understandable if morally faulty logic. The driving lobby is not weak, and it would be a brave Parliament that assimilated this offence to manslaughter, but it would be a just Parliament. Dangerous drivers who kill are bad people, and the ultimate parent should punish them as such.

When it comes to economic crimes that harm those businesses with deep pockets, we swing wildly the other way. Sentences for stealing from an elderly lady should be severe. Are bankers who fiddle around with a survey — after all, that’s what LIBOR was — the same level of misdemeanant? Judges when sentencing were harsher on the latter than they usually are on the former, however. The former is exactly the sort of thing the ultimate parent (and his representatives on the bench) should be concerning themselves with dissuading. The latter should be, in truth, the job of proper economic regulators.

There is no lobby for the old lady who has her purse snatched, just as there is no effective lobby within the criminal justice system for the victims of familial violence. There is a very rich and powerful lobby for protecting the bottom line of the Premier League Limited, however.

The whole array is a mess. Judges must use their powers properly and uphold the King’s Peace. Parliament ought to ensure its own distribution of criminal sanctions is morally rational. In some cases, it may even need to abolish some and create others.

Right now, the “The advertising quack who wearies” (as the Mikado dislikes) is rather more likely to spend some time at His Majesty’s Pleasure than a violent father or a lethal drunk driver. That is neither moral nor is it just.

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