A shod way-with offenders
Edward Pearce
In the old days, a patterman or ballad monger confided to Henry Mayhew, `it was sentencing o'Friday and scragging o'Monday.' The patterman was deploring the short amount of time in which to run up a full confession and final dreadful warning. For us, even those who would not have scragging back, there was something impressive about the crisp dispatch of eighteenth century justice compared with a contemporary system which bears tolerable comparison with an airship without a rudder.
Too much time is taken up in dispute about the merits of leniency and severity. The crying need in the criminal law is for celerity and dispatch. Lord Shawcross has recently reminded us of the fact that whether we punish mildly or harshly, we do not convict a high enough proportion of the guilty. The combination of long delay and excellent sporting odds on a false acquittal have done more to bring criminal justice into low esteem and crime itself into favour than the absence of the crank,,, the treadmills and Australia.
The great quality which is missing from our times is certainty. This is as true of the courts as it is of politics. We need, more than we are likely to admit, that judge whom the late, Henry Cecil likened to a vending machine. 'In went the offence and the record and out came the sentence,' You cannot deter with a hypothetical axe half so well as with an assured five years.
Inconsistency in the court derives from two things: the high prospects of a guilty man getting off and the desperate shortage of prison accommodation which makes sentencing more an act of housing administration than of justice. The courts have also to face the most intolerable backlog of untried cases with every prospect of it getting worse. The judges have their own short cut through this problem — the `carve-up'. Ask any barrister what is meant by 'carveup' and he will either give you a short homily on the sacred nature of his calling or dart down a conversational back alley. It works like this: Jones does his neighbour an injury with a razor. The prosecution would like to get him for 'wounding with intent to cause grievous bodily harm', too serious a charge not to be punished with prison. The defence let it be known that they will plead not guilty and enter a long laborious case in 'which they may not believe. Life is short, trials are expensive, prison accommodation is wanting. So the case is briefly adjourned, counsel go to the judge's room and a deal is worked out by which a plea of guilty to the lesser charge of `malicious wounding' is swopped for an undertaking that there will be no custodial sentence.
It works because the card which counsel has to play—the time-wasting, fee-gathering device of an impudent, interminable but -technically proper defence is more magisterial than justice itself. If every criminal case were defended in extenso without a carve-up the delay for a case waiting to come to trial might be measured in years. I personally want to see the continuation of a system which gets by without either beating people or breaking their necks, but I want it to work and to be seen to work. If the courts are feeble or incredible or slow then there will be more crime consequent upon that loss of authority, and the reaction in favour of revenge justice will be correspondingly stronger.
If we are to give the law real authority we must aim at two things, speed and space — prison space. The Economist, which never ceases to delight with its own combination of corporate conceit and lordly command of fallacy, has said with a characteristic St James's Street smirk that because the volume of crime is going up we should be giving shorter and fewer sentences. Try telling that to anybody trying to live quietly and harmlessly in parts of Glasgow, Liverpool or Tyneside.
In fact a consistent failure to meet the rise in crime with a rise in prison space is directly responsible for much of the nonsense in the courts. For even when a conviction has been obtained, judges are mindful of the overcrowding which a failure to build prisons has created. As a consequence they frequently are reduced to what may be called administrative leniency — letting somebody back into circulation without a sustained belief that it is just or safe to do so. The main point about prison has ilothing tIrdri with either deterrence or retWitation. It concerns prevention. Jones locked up does not steal, assault or vandalise, something which is of only theoretical interest if you live in Esher or Rickmansworth, but which directly affects the tolerability of life in Kirby or Maryhill. A court armed with a proper quantity of prison space would be strengthened up to a point. However, the opportunities for prevarication and abuse of the criminal law will remain. As Lord Shawcross pointed out, excellent odds can be obtained for the guilty if only the jury can be rigged the right way. `Rigged' was not his Lordship's word but it will suffice. Defence counsel have their own identikit of the ideal juror — a Polytechnic lecturer of dishevelled appearance and criminal tendencies. My own rig-out if called to jury service would include a corduroy jacket, a dark coloured shirt, a knitted tie and a crumpled copy of the Guardian. If trying to avoid service one should try to look as much like one of Mr Ian Smith's ministers as possible, but a blazer and a Rotary pin will see you off all right; so, for that matter, will a builder's jacket.
Until recently counsel had seven weaned peremptory challenges by which he could dismiss a juror, quite literally because he didn't like the look of his face. This is now reduced to three but in multiple defences they are pooled for the common good; so that we can still get fairly close to the exact converse of those special juries of substantial freeholders which were used JO the days of Eldon and Sidmouth to ensure the conviction of radicals for sedition.
However what really matters is simply the fact that courts are dealing with a vast multiple of the number of cases to which they' were accustomed in the middle of the century. Accordingly, merely to conduct a defence in a routine and fairly honest lash ion when there is n6 defence devours titne and makes the carve-up option so attractive.
There is an answer to the problenl, although it will be met with howls of rage from all interested parties. It involves borrowing from the civil law a procedure for ruling out frivolous or vexatious defences which can only have been made in the hope of a deal. If, in a civil action, Jones sues Harris in tort or for breach of contract, the, early stages of the case are conducted before ()BD Masters. If a completelY frivolous and time-wasting defence 15 entered, there is provision for an order granting judgment to the plaintiff. There IS a right of appeal, but this rather crisp and summary way with nonsense seems to work; The idea of criminal law Masters appointe° to filter manifestly absurd defences may g° against all that is holiest and highest ill the august tradition of British justice, but so does the carve-up and so does the inability of our courts to keep down crime.
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