AND ANOTHER THING
Why judges view the rise in crime with judicious complacency
PAUL JOHNSON
In the growing rift between the judges and the public, one aspect — the economic factor — is overlooked. The notion that judges are superhuman and etiolated fig- ures, above the fray and with only the pub- lic interest at heart, is many years out of date. Judges are superannuated banisters, and thus members of what has long since ceased to be a profession and has constitut- ed itself as an industry, with all the preda- tory instincts and lobbying postures one associates with industry today. Judges usu- ally come from families long employed in the law industry, and their children, in turn, often work in it. They do not get about much in the real world, as is natural. As they sit in their chambers and gaze out of the windows at one or other of the Courts of Justice, or the Inns of Court, and watch workers in the industry going about their business, and marvel at its expansion and growing prosperity — there are more solici- tors and banisters than ever before, and it is now common for barristers and senior partners in law firms to earn over £1 mil- lion a year — they can almost be forgiven for saying to themselves: what is good for the law industry must be good for the nation.
And what is good for the law industry is, of course, crime. Needless to say, crime is not the only thing which is good for it. The European Union, the Brussels bureaucrats and the exponential increase in regulations which provide opportunities for litigation have also been good for the industry. That is one reason why the vast majority of lawyers, led by the judges, are Europhiles. The series of enormous statutes passed by our own sovereign Parliament in recent years (plus their scores of thousands of consequential regulations), such as the Environment Protection Act, the Financial Services Act, the Children's Act etc., have also benefited the law industry. And we must remember that law is now the only industry in Britain where the element of state subsidy is actually increasing. Claims that farming is 'featherbedded' are out of date. It is the men in wigs and gowns who now, thanks to £2 billion-plus a year of legal aid, loll amid the state duvets and four-posters. For the old-fashioned notion that legal aid means aid to the poor is one of those delightful jokes which raise chuck- les over the port in the hall of Lincoln's Inn or the Inner Temple. Legal aid means aid to the law industry. It is a subsidy; and, unlike most subsidies, it is administered, controlled and expanded entirely by the industry itself.
But, when all is said and done, crime is the bread and butter of the law industry. Without crime, the industry would be in trouble. So when judges deplore the increase in crime, as one of them did the other day, they need not be taken too seri- ously. It is rather like tobacco magnates expressing concern about the incidence of lung cancer, or pharmaceutical millionaires worrying aloud about the public's growing appetite for pills. Such tut-tutting noises are expected from important persons who wish to appear high-minded. In fact, judges view the increase in crime with consider- able complacency — otherwise they would do something about it. Crime may be inconvenient for the public as a whole, but for the law industry it is business.
Every time a criminal appears in court, there is work to be done and fees to be earned. That is why judges insist that it is the fear of conviction, not of prison, which deters a criminal. The industry gets a cut out of convicting a man but nothing while he is in prison. The criminal is the indus- try's raw material. It makes a good living by processing him. The oftener he is pro- cessed, the better that living will be. Thus slap-on-the-wrist judges, of which there are a growing number, are serving their indus- try well. A criminal who gets a slap on the wrist when he is convicted will be in court again and again. Judges now have regular meetings to try to reduce the length of prison sentences. From the Lord Chief Jus- tice down, they deplore Parliament legislat- ing to force them to give minimum sen- tences. Well, they would, wouldn't they? With short sentences, a professional crimi- nal — who himself makes a good living out of crime — may appear in court 20 times during the course of his career. That is 20 'I've been made milk monitor.' sets of fees for both prosecution and defence, and 20 chunks of time for the judges, who are always, of course, com- plaining of overwork and calling for more judges to be appointed. Wrist-slapping, fines and, in the worst cases, short prison sentences constitute the perfect formula for a thriving law industry.
Conversely, if Parliament insists on send- ing criminals to jail for ten or 20 years, it is taking them out of the legal processing sys- tem at what may be the peak of their careers. Who knows? By the time they are freed, they may be past it and no further use to the industry. What the industry, of course, fears most is what is happening in some American states — life sentences for habitual criminals which really are for life and so end a criminal's career, and his use to the industry, for good. Or rather, there is one thing the industry fears even more — a return to capital punishment, which can end the career of a violent criminal before he even gets properly started. That is why the judges overwhelmingly oppose a return of the rope and say openly that they will go on strike if the wishes of the public are fol- lowed.
You may say this is an over-cynical view of judicial and legal motives. But that objection would not be raised against applying such an analysis to any other industry. Why should the law be seen as more altruistic than, say, making cars or building or banking? After all, the law is the only calling in which an expert is care- fully trained and handsomely rewarded for exercising his skills to enable a bad man to escape from the consequences of his wickedness. Cynicism, or professional objectivity as the men in wigs call it, is of the very essence of the law industry. And are we to suppose that barristers, who flourish mightily on crime, suddenly become public-spirited saints the second they step onto the bench? Of course not. That is why the judiciary will be increasing- ly in conflict with the public, as crime and the prosperity of the law industry rise inex- orably, and the public suffers more and more. The fact is, the judges are now set on a collision course with the democratic prin- ciple. And if they continue to interfere in public and make political speeches — as they are now doing, increasingly — there will eventually be no alternative but to treat them like all other politicians and force them to seek election.
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