Wednesday, November 04, 2009
Sadly, No Audrey Hepburn
The confused and confusing state of the sentencing regime is something that every sentencer is aware of. Our training and guidelines insist that the sentence pronounced is indeed the sentence imposed, but there isn't a single member of the judiciary who doesn't know that the whole business can be a charade sometimes.
A few months ago we were faced with a local drunk who had again breached his ASBO. He had spent two nights in police custody, and was represented by a decent, seasoned solicitor of many years' experience. The solicitor accepted that his client was an alcoholic who was unwilling to seek treatment. He pointed out the utter futility of the man's arrest and charge with an offence carrying up to 5 years on indictment. Until half a dozen years ago the man had a house and a job and a family. Now he was derelict and homeless. We were urged to allow his release forthwith, by imposing a fine and deeming it served, but for technical reasons to do with the man's record that wasn't really on. Only custody would be appropriate, but how long? This is where the the guidelines are unhelpful, because of the shambolic early-release system. 21 days means that he would have to serve seven of them before early release could kick in. On the other hand, 28 days, bearing in mind the 3 days that our man would have served already, would result in his early release, certainly in the next few days, possibly sooner. So I went through the pronouncement of a 28 day prison sentence, knowing, as did my colleagues, the clerk, the prosecutor and the defence brief that he would serve nothing like 28 days. I was of course quite unable to announce openly what would really happen and why we were making the order that we did. That's a charade for you.
Here is an explanation of the rules for early release.
This system has already lost the confidence of the press and public and is fast losing the confidence of many sentencers. The new government that we will get next year will have a lot on its plate, but this mess should be high on the agenda for the new Justice Secretary.