Sunday, November 08, 2009

Guest Post

I am genuinely honoured to be able to post a guest contribution from the widely respected Glenna Robson, who has contributed to many legal and academic publications.
Her article speaks for itself.
Must follow” takes pole position

Recently on this blog Peter Hargreaves rightly drew attention to the latest mammoth criminal justice bill to be wending its way through Parliament – the Coroners and Justice Bill. This is an amalgamation of two separate bills signalled in one of those spurious Queen’s Speeches now made in mid-summer by the Prime Minister and which purports to lay out government policy. The Coroners Bill has been around for some time and was heavily criticised in its original form by the Constitutional Affairs Select Committee (now the Justice and formerly the Lord Chancellor’s Select Committee) in its Annual Report for 2005-5. All went quiet during 2007-8 but the Bill resurfaced in 2008 and was again the subject of sharp criticism by the Committee in its intention to limit coroners’ powers. At the same time (June 2008) it was announced that that there would be a separate bill on Law Reform, Victims and Witnesses. Instead, these two bills got rolled into the present hotchpotch which has just received its Third Reading in the Lords (November 5). There are plenty of points for discussion, but for magistrates it is Part 4 which is of particular interest. Therein lie the provisions for abolishing the Sentencing Advisory Panel and the Sentencing Guidelines Council and establishing a Sentencing Council whose guidelines sentencers “must follow”. Currently under the provisions of the CJA 2003 S.172 sentencers are ordered to “have regard to” the guidelines. The Magistrates’ Association as well as the Conservative Party have fought to preserve this latter statutory obligation. Slight amendments in the general wording were won but the MA stated that “they are not strong enough to allay fears that undue influence through a too rigid sentencing structure will be imposed on sentencers”. High hopes were pinned on a possible successful amendment in the Lords. However the former Lord Chief Justice, Lord Woolf, signalled in both the Committee and the Report stages that he felt that there was a clear two-stage process that the sentencer “must follow” the guideline “unless the court is satisfied that it would be contrary to the interests of justice to do so”. The nub of his argument can be found on:
It obviously swayed some who might have voted in favour of the amendment. As it is, the Bill goes back to the Commons and the expectation is that it will be law within days. It is interesting to note that although the Council of Circuit Judges also joined in protests about “must follow”, the senior judiciary have been silent unlike their reaction to the government’s original proposal of a sentencing grid. So will this Bill make guidelines more like tramlines?

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