Thursday, March 31, 2011

just sentencing

The Sentencing Council has launched a consultation on its draft proposals for new sentencing guidelines on drug offences. The overall aim in the words of the council’s chairman, Lord Justice Leveson, is “to ensure that those who are responsible for the most serious drug crime receive the longest sentences and that punishments overall are in proportion to the offender’s role and the amount of drugs involved.” So, for example, someone playing a relatively minor role in supply of a relatively small quantity of heroin or cocaine might not receive a prison sentence.

The reaction from parts of the press has been immediate and, not surprisingly, condemnatory. The Daily Mail commented that pushers of hard drugs are among the most insidious enemies of our society, profiting from misery and degradation and driving countless young people to crime and, all too often, early graves. Some truth in that but, if the DM had seen the far greater number of crimes that are fuelled by alcohol and the damage done by its excessive consumption then it might be equally disgusted by the pushers of that particular drug, who break no laws.

The Sun typically headlined their article Off Their Heads, describing the sentencing plans as “barmy”. But our tabloid guardians may be worrying unnecessarily as, in the proposals, the starting point for supply of even the smallest amount of a class A drug is 26 weeks custody and can go up to 2 years. Yes it can go down to a high level community sentence, but that is unlikely and would be triggered only by very convincing mitigation. A more reasonable focus of the critics of the changes in sentencing could be on the discretion to suspend a custodial sentence, particularly where it is hard not to believe that the government’s aim of reducing prison numbers is a major factor.

Following hard on the publication of the new guidelines was the sentence imposed on a drug dealer by a judge at Harrow Crown Court. He gave a 12 month suspended prison sentence to a supplier of cocaine, ecstasy, amphetamine, cannabis and the very nasty crystal meth. Part of the judge’s reasoning was that the defendant “sometimes sold drugs at cost price to other users". Yeah right. He supplied what the new guidelines define as medium quantities of several Class A drugs and the starting point is 4 years custody. Why this was reduced to 12 months and then suspended seems hard to explain and has provoked understandable criticism from the press.

Whereas magistrates must follow sentencing guidelines and give clear and detailed reasons for any rare departures from them, judges feel themselves less constrained to follow, or even refer to them, and this is how inconsistencies and anomalies arise. If the more maverick approach of judges is allowed to continue then the Sentencing Council must consider whether such prescriptive sentencing guidelines for very serious crimes are worthwhile.


Sunday, March 20, 2011

a league apart

The debate on prison sentences continues (as it should) and I have little yet to add to my post in December 2010 but it is hard not to be tempted into a reaction to the illogic of some of the conclusions of the response by the Howard League for Penal Reform to the government’s green paper on sentencing.

The HLPR firmly believes they are the only people who can see the disadvantages of prison and the contingent risks it brings to its inmates, particularly those who are vulnerable, susceptible to bad influence, or having mental health issues. They are not. Unfortunately they are also not alone in thinking that offenders are given prison sentences on some kind of whim, for want of sentencers being able to think of a better alternative, but the HLPR should know better. They are not, as they seem to believe, the onIy ones who have thought it all through many times.

For example, their dogmatic position that 'women’s prisons should be closed' is unjustified; of the 3,000 female prisoners the vast majority have committed violent, sexual, or other very serious offences. The HLPR’s statistic that over 40% of those imprisoned in 2008 were for theft and handling offences doesn’t seem to reconcile with the government’s figures on the offences of those currently inside, only 13% for theft/handling. Sentencers of course don’t have the aim of increasing the female (or male) prison population but rehabilitation is not the only purpose of sentencing; the HLPR must be aware that other aims are protection of the public, punishment, reparation, and reduction in crime or deterrence (a word that is mentioned only once in their document and yet is a key factor in custodial sentences). And a prison sentence is certainly a deterrent.

The HLPR knows that sentencers comply with government guidelines and their assertion that 'magistrates over-use custody' is nonsense. Unless specifically prescribed for an offence by the guidelines, and often even if it is, custody is a sentence of last resort and every effort is made, with the help of the probation service, to find an alternative in the shape of a community order or suspended prison sentence or a curfew. But, strangely, the HLPR doesn’t like curfews either, describing them as too punitive. Really ? They keep the offender in their home for up to 12 hours per day (usually at night time and usually less) for a few weeks, giving him immense freedom to live and to work. Is that so punitive ? Custody is avoided and the cost to the taxpayer is comparatively tiny.

HLPR wants to take power of custody away from magistrates altogether, proposing that they have to remand an offender to crown court for a custodial sentence; a suggestion that is so absurd it cannot be taken seriously. Apart from the bottleneck this would create in crown courts, pushing up the already long wait for trials, the huge increase in cost to the country, and the risk that the offender will not turn up at court for sentencing, such a process would almost certainly result in more custodial sentences and longer ones. Magistrates can give only up to 6 months custody, and, after a guilty plea, an offender receiving the maximum sentence will serve just 2 months in prison (likely to be even lower shortly.)

Contrary to the HLPR view, the number of prisoners serving short sentences of less than 6 months is falling, down from 5,500 in March 2010 to 4,500 in December 2010. Their report says that 'sentencers are too preoccupied with prison' and warns of 'an ever-ballooning prison population' and yet it has reduced over the last year.

Amidst a number of other misguided ideas and notions, there is much good sense in the HLPR’s detailed paper and their view that 'community sentences must be made more immediate, more efficient and more intensive' is undoubtedly right. But those sentences have many flaws and risks too. It is not proven that they produce lower reoffending rates than custody, as the propensity of the offender to reoffend has to be taken into account, and that is very complex. The funding for them is likely to be reduced and how well the Probation Service will cope with an increasing number of clients and over-stretched resources is very uncertain. Breaches will increase and custody must be available as an option to deal with them, otherwise community sentences will fall further into disrepute. A recent press article warns of just such a fall.

The more a prison sentence can be avoided the better but the aims of sentencing, particularly protection of the public, must be paramount. Reoffending can only be prevented whilst the offender is in custody; at all other times the reoffending can only be discouraged and whatever intervention helps to achieve that is one that must be considered; the earlier it takes place in the offender's criminal life the more likely it is to succeed. On the question of how successful sentences in the community are the jury is still out and daft proposals by organisations who are bending too far backwards to achieve their own, sometimes irrational, agenda are not helpful.


Thursday, March 17, 2011

it's all white

Midsomer Murders is a detective drama set in fabulously wealthy villages just next to the Garden of Eden, where the sun shines nearly all the time, bicycles have baskets and bells on them, accents are silver spoon, the sanest of the inhabitants are called eccentrics, gossip is more an occupation than a pastime, the butcher wears an apron and a boater, the church is the hub of the community, and nothing much happens apart from blackmail, fraud, countless infidelities of all types of sexuality, and a murder rate that would make 1930s Chicago look on with a jealous awe.

The detective is a nice ordinary family man from the nearby (pardon the expression) ‘town’ where, unlike the villages, there are more householders than gardeners, roads with cars on them, shops where the shopkeeper isn’t always a pillar of the local amateur dramatics society, pubs where someone unexpected might enter, and not everything looks like it has just been cleaned and polished. Like all great detectives, he always finds the culprit.

It is classic whodunit, carried out with logical deduction, art, imagination and style in a lavish setting. The programme stretches the intellect, entertains, amuses, relaxes and makes us feel good when we pretend we knew who it was all along. Its fans love it. What could possibly spoil it ?

Political correctness of course; if only because the European Court of Human Rights hasn’t watched it yet. The producer, Brian True-May, doesn’t care much about being PC and probably doesn’t know how to be. If he did he might not have remarked on the fact that all the characters in the drama are from good old English stock (which is mostly French if you go back far enough), are not from ethnic minorities and (be brave) have white skins. And he thinks that’s ok because it fits in with the fictional, yes fictional, setting, situations and storylines. Which it kind of does. There are villages that are virtually entirely populated by white skinned ‘old english’ folk, whether or not the over-sensitive fusspots like it. And bearing in mind that the programme has been going for 14 series, has been sold to over 200 countries, is hugely popular and successful, and has never been the subject of complaints, Mr True-May is entitled to say what he thinks makes it tick.

But the race card has been played and he has been suspended. Pending what ? A full confession ? An apology to er… er… ? There is nobody to apologise to because, in 14 series, nobody has been offended, or if they have they have kept very quiet about it. Now there is a controversy, contrived by the production company out of nothing, the bandwagons will start to roll and the bleeding hearts will jump on. But they get it wrong. Surely we have progressed beyond needing a quota of different ethnicities on every TV programme, whatever its context. Racism against ethnic minorities is not a big problem in this country but igniting a debate about trivial race issues will ensure that it becomes one.

Most viewers never really noticed the skin colour of the actors and wouldn’t care. I have noticed though that there are very few children in the villages; I suggest 2.4 per household would be about right.


Thursday, March 10, 2011

bankers anonymous

My name is Fred and I’m a bankerholic.

It is not hard to understand why the former Head of RBS and therefore the man most culpable for its downfall doesn’t want anyone to remember that he was a banker, which of course he was until he left under a cloud, cheered up though by a pension of £700,000 a year and a lump sum of £3 million. Taxpayers coughed up £20 billion to keep the bank going and to ensure that its directors and employees would again be able to pocket obscene bonuses for doing very little of use.

But what someone like ‘the Shred’ is able to do, where the less affluent can’t, is to get an injunction (a secret superinjunction no less) that prevents the media identifying him as a banker. And he did. And so they can’t. This clever little tool (the injunction not the banker) even prevents the media from reporting the injunction that in turn prevents the reporting of his banker epithet.

So we can’t be told what can’t be done; and we would never have known about it were it not for a piece of trickery by the Libdem MP John Hemming, who mentioned it in the House of Commons, which he is allowed to do despite the legal ban because some rules don’t apply to MPs (as you may have noticed). How naughty of him !

These injunctions are only supposed to be granted to protect the rights to privacy of the people who seek them, for example to protect their families, and not to help them advance in new careers nor to evade the unwelcome publicity that they might rightfully deserve. Can preventing a newspaper from describing someone as a banker really do anything at all for his privacy, or is the bonus boomer up to some other mischief ? And if we can no longer call him a ****** then what should we call him ? Over to you.


Tuesday, March 08, 2011

fine for burning

In this post I wrote about the members of a group called Muslims Against Crusades who, just as the 2 minute silence of commemoration of our war dead and injured was starting, chanted ‘British soldiers burn in hell’, ‘British troops are murderers', held banners which read ‘Islam will dominate’ and ‘Our dead are in paradise, your dead are in hell’, and burned poppies. I said then that the sentence could be very minor.

And very minor it was for the main protagonist, just a £50 fine (plus a £15 surcharge). This has provoked outrage amongst many, including some of the press. But the sentence was to be expected (although could have been a higher fine) because the offence he was charged with, namely a section 5 public order is a low level offence, the lowest that could have been charged.

Some argue that a low sentence was right because it prevented him from becoming a martyr. But that is not how sentences work nor should work. The effect on the status of the offender within his community or peer group is not a purpose. He can still proclaim himself a martyr anyway and probably will after further convictions, which are almost inevitable, going by his own promises. Some argue that he should not have been brought to court at all as all he did was exercise his right to free speech. But that right does not give a licence to disrupt ceremony nor to cause great upset and distress to people, nor to make remarks that will defame the dead and disgust the living.

But the big question is why the charge was not one of committing a racially aggravated public order offence, because racially aggravated it very clearly was.


Friday, March 04, 2011

don't even think about it

A couple have lost their court case against Derby city council who decided they might be unsuitable to foster a child because, in answer to spurious questions in a contrived interview, they said they did not like homosexuality and they struggled to give the right answers when confronted with several hypothetical scenarios involving a child and sexual orientation.

Their view was based on their religious belief but, as the judge quite rightly ruled, this was not a question of deciding the comparative merits of religions, but whether or not their stance on this one issue could legitimately be taken into account by the local authority in determining how well the couple might treat and behave towards a child.

So forget the religious bit, as it can only complicate what is a quite straightforward issue. This is about whether parents or carers are entitled to hold views that might be considered politically incorrect, anti-diversity, narrow, outdated, or whatever; and whether such views would harm the upbringing of their children. And this is where the court should have ruled the other way, finding that the social services department was incorrect, anti-diversity, narrow and outdated in their belief that a child would grow up with any prejudice on the matter at all, just because the parents held a particular moral view.

Leaving aside the fact that the authority had no right to ask the questions about sexuality at all and shoud have focused only on whether the couple would be able to love, safeguard and nurture a child (which they have proved 15 times before that they can) and the fact that most candidates for fostering would have evaded the argument altogether by telling a fib or two (they certainly will now), what even politically correct, diverse and morally perfect social workers should be aware of is that a lot of kids actually don’t grow up with exactly the same thoughts, politics and morality as their mums and dads. They often go out of their way to adopt the opposite. Is that such a shock ?

Should foster parents have to prove themselves so much more acceptable to the thought police than most natural parents could possibly achieve ? Will local authorites go a few steps further and insist on an exam for couples seeking to start a family, with the courts wasting their time and money judging on appeals ? What would the correct answers be to the exam’s questions on war, abortion, pornography, the middle east, and bankers ?

This sad and ever so typical instance of political correctness gone crazy reflects an increasingly common misunderstanding. We are entitled to our moral stance on anything we choose; that’s partly why we have our own minds; what is wrong, and very wrong, is to take actions (or incite them) which harm or disadvantage people by discriminating against them on the basis of their religion, sexuality, ethnicity, disability and all the rest.

If we want to think then let us think. George Orwell is smiling and whispering ‘I told you so’.