Tuesday, 18 June 2013

The Perils of Criticising a Criminal Sentence for "Undue Leniency"

The Attorney General has announced that the 15-month jail sentence given to Stuart Hall following his conviction for child abuse offences years ago will be reviewed. That is one of the AG's functions: to consider and, if necessary, review sentencing decisions. There is certainly considerable public dismay at the sentence passed, but it is a little surprising to find so many commentators pre-judging the outcome of this review. After all, the review may yet uphold the judge's decision. Moreover, from what I have seen, none of the commentators knows about the detail of the case in the way that the judge did, and none of them that I have seen has a background in or experience of criminal sentencing.

Jonathan Freedland's article in the Guardian might be a good example. Freedland is an excellent commentator on political matters, but I'm not convinced by his critical comments on this purely legal matter. One of the things about sentencing for criminal offences is that the decision is taken in line with the law, and not on the basis of political pressures, public opinion, or the views of victims or their families. The policy which underpins sentencing law is independent of these factors for obvious reasons - the avoidance of mob mentality, basically. It is the judge who heard the case, and who knows all the evidence, who makes the decision about the sentence within the general guidelines issued.

I'm not trying to make any comment about the Hall case in particular. Maybe the judge did give undue weight to various mitigating factors. No judge is infallible, and that is why we have reviews and appeals against sentence. But at the same time, the judge is the one tasked with making the decision, and when there are choices to make they are his to make, and it makes me uncomfortable that people would publicly criticise the decision without apparently giving any credit to the judge's expertise or to the fact that the review has yet to take place.

For example, Freedland criticises the judge for choosing to impose concurrent rather than consecutive sentences. Well, who knows what another judge might have done, but if the judge is asked to decide, and he gives cogent reasons for choosing one rather than the other (which this judge did: he expressly acknowledged that consecutive sentences would have been possible, indicating that he considered and then rejected this option), it is questionable whether commentators should then criticise him for that decision.

Successful appeals against unduly lenient sentences are fairly uncommon, I think, not least because there is always a range of sentences that could legitimately be imposed and the judge is the one tasked with picking within that range. In this case the judge was surely aware that the decision he took, whatever it was to be, would be scrutinised by the media. The case was a high profile one, and while that should not have affected the decision the judge took, it no doubt caused him to think particularly carefully about it, and to weigh the options available to him. So let's wait and see. There's obviously a concern here and I don't know yet whether it is justified or not, but as a general principle I wouldn't be surprised if the outcome of an impartial review was to uphold the judge.

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