Don’t Know Whether They Are Coming Or Going…

December 13, 2011 13 Comments
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Lord Judge’s comments at the Royal Courts of Justice today follow a call by the independent Homicide Advisory Review Group for the mandatory life sentence for murder to be scrapped.

The group, whose members include former judges, lawyers and prison governors, claimed the compulsory life term was “outdated” and “unjust” and that judges should be given the power to determine punishment on a case-by-case basis.

Or, in other words, ‘My god, the British public is so vengeful, and we do so hate sending people to jail who have sad lives and evil childhoods, it fair makes us weep…’

Lord Judge said, however, that offenders were already given varying “tariffs” setting out the minimum time that each must serve and that the main problem was that the law was too complicated.He cited recent legislation barring those accused of killing from using “provocation on the grounds of sexual infidelity” as a defence as a major problem that he was “grappling with”. The answer, he said, would be to review the murder law to achieve legislation that was both in step with public opinion and simpler to implement and understand.

I really can’t see what could possibly give him pause about the new legislation on provocation, unless he’s in favour of allowing it as a defence.

But meanwhile:

Murderers who kill disabled or transgender people in hate crimes are to face much longer prison sentences under government proposals.The justice secretary, Kenneth Clarke, said the “starting point” for judges sentencing in disability and transgender murder cases was to double from 15 to 30 years.

So, on the one hand, we aren’t in favour of statutory sentences, while on the other, we are, so long as the ‘right’ victim group is being assuaged?

Our justice system is schizophrenic!

The move will bring sentencing in these cases in line with murders in which race, religion or sexual orientation is an aggravating factor.

My take is that there should BE no ‘aggravating factors’ other than those used in the commission of the crime – a tariff for malice aforethought and planning, for torture before death, for attempts to evade capture – but nothing for why the victim was chosen.

That would be true equality.

The proposal is part of the government’s first strategy to tackle transgender prejudice in England and Wales.

By making them a protected species, for whom their death is considered more heinous than the death of your cousin or granny?

How the hell is that supposed to work?

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13 Responses to Don’t Know Whether They Are Coming Or Going…

  1. December 13, 2011 at 7:59 am

    It’s not supposed to work, it’s supposed to wind us up till we demand that the real powers that be step in and remove all our rights and civil liberties to govern us by an iron fist. But at least the trains will run on time and naughty people will vanish without trace.

    • Tattyfalarr
      December 13, 2011 at 1:52 pm

      *nods*

  2. December 13, 2011 at 8:12 am

    So murdering people for their money, in competition for a sexual partner, for power, for non-specific mindless violence or for being victim of / witness to another crime (which I believe are the most common motives) is less wrong?

    It’s good to know the law is on the side of the most frequent victims of this most awful of crimes.

    Best regards

  3. Mudplugger
    December 13, 2011 at 8:40 am

    Rather than merely tinkering with it, we need a wholesale review of Homicide justice.

    At the moment, we leave it to the CPS to pre-decide the crime by calculating the offence for which the CPS believes it is most likely to achieve a conviction, thus causing many homicide crimes to be under-prosecuted.

    A better approach would be to have a single prosecution for Homicide, i.e. that the death of one or more humans has been directly caused by the actions of one or more other humans or corporate bodies.

    The jury would possess a scale of offence-types, ranging from Justifiable Homicide, through Self-Defence, Crime of Passion etc., right up to Premeditated Mass-Murder.

    The prosecution would present the accusatory evidence, the defence would submit its counter-argument, then the jury would decide two things:-
    a) Did the accused cause the death(s) ?
    b) If so, at which level on the offence scale ?

    The judge would be provided with guideline tariffs against each scale-point on the offence-list, which would then be awarded to reflect the jury’s two conclusions of guilt.

    No doubt Life Imprisonment may feature on those tariffs, as may any number of other sentence outcomes, but at least we would have moved away from the current and flawed sledgehammer system which serves no-one, least of all justice.

    • December 13, 2011 at 1:56 pm

      At the moment, we leave it to the CPS to pre-decide the crime by calculating the offence for which the CPS believes it is most likely to achieve a conviction, thus causing many homicide crimes to be under-prosecuted.

      It’s not perfect but actually I don’t have a problem with the CPS looking at things first before deciding whether to prosecute, especially since their threshold for bringing a case to court is supposedly anything better than a 50:50 chance of winning. We might wish they’d let the jury decide things a little more often, and with some types of cases maybe they do, but consider a few things:

      1 – It costs money, and money spent prosecuting likely losing battles is likely to be money wasted. Bit cold blooded, I know, but sadly it’s a fact and with the UK’s public finances as they are it’s arguably more important than ever not to back losing horses.
      2 – There will be many occasions where the reason the case has a less than 50% chance of being won is because the guy they have in the frame didn’t actually do it.
      3 – The ‘double jeopardy’ rule means that even if someone did do it they’ll probably get away with it if the CPS goes ahead and prosecutes a weak case with iffy evidence, and he stays that way even if he confesses to TV cameras on the way out of court. But if they leave it open there’s always the chance that new evidence will turn up to make a likely losing case into a winnable one. (Doesn’t apply to murder anymore since the UK has scrapped ‘double jeopardy’ for that and some other serious crimes, meaning the CPS do get a second chance to prosecute if sufficiently convincing new evidence can be manufac… er, I mean found.)

      Last point, I’d agree that there’s scope for reform but I’m not convinced this is it. As with many parts of the judicial system that work in the favour of the guilty the real reason they’re done is to protect the innocent. “Better that ten guilty men go free than one innocent be sent to gaol” and all that. I’m not sure that having the CPS prosecute all wrongful deaths as the same and give the jury four or five versions of guilty and only one of not guilty goes along with that spirit. Bad enough that they can prosecute you for the same thing twice now, but if you were an innocent man in the dock you could be forgiven for feeling like someone’s rolling dice to decide your fate and you only win if it comes up a six.

      • Mudplugger
        December 13, 2011 at 4:10 pm

        Understand some of your critique, but my approach is quite simple and sequential.

        The prosecution simply sets out to prove that person A killed person B. That is a simple binary decision for the jury – guilty or not.

        Only once they had made a Guilty decision would the jury then go on to evaluate the level of that guilt on the offence-scale, using the evidence presented to establish the absolute offence.

        Double jeopardy would still apply as, if they jury said Not Guilty to the first stage, the trial could not be repeated.
        But it is a very different question from the current one asked of a jury, hence the likelihood of unbalanced outcome would be reduced. The jury could produce a Guilty verdict but to a higher or lower level of offence than the CPS would currently estimate as being a better than 50:50 gamble.

        • December 13, 2011 at 7:06 pm

          Shite. Detailed reply lost to a browser crash. Bugger.

          What you suggest seems to be taking parts of the roles of the prosecution, defence, Coroner’s Courts (including those where a jury is summoned) and judges, and giving them to criminal juries whose current duty is deliberately restricted to answering one very simple question: has the prosecution proved the case it set out to. The reason for things to be the way they are is to make it harder to send the accused to prison and harder still to send them there for a long time, and that’s all with the intention of keeping me and you and every other law abiding person out of there. That’s why the lawyers, judges included, decide on whether something may meet the legal test for offence X and the jury is there only to decide whose argument holds water. I don’t think it’s at all desirable to have juries deciding what you’re guilty of, not least because they’re not qualified to (again deliberate) and have no idea whether what facts they’ve decided on meet the legal tests of the crime they think it should be. Bear in mind that if ever you’re standing innocent in the dock your jury will on average contain 3 or 4 people who voted Labour, another 3-4 who voted Tory and a a Lim Dem supporter or two – with all the weight tilted in favour of the defendant I’m comfortable with having them decide simply if the prosecution proved its case. I’m sure as hell not comfortable with them deciding what I’m guilty of instead.

          The prosecution simply sets out to prove that person A killed person B.

          Quite often there’s no argument about whether person A killed person B so there’s nothing for the jury to decide. The question is whether person A murdered person B, which is something else entirely. Ignoring cases where the binary decision is ternary because the judge has said that manslaughter’s an option the jury already decides on whether it meets the test for murder, part of which is whether the prosecution prove intent, the whole mens rea business. If the defence is claiming self defence and the jury believes it they don’t need to find the defendant guilty of killing – currently not even an actual crime – and then give a second verdict of self defence. No need for two verdicts when ‘Not guilty of murder’ does the job perfectly well.

          As for crimes of passion, like the rest of the whole ‘level of guilt’ thing this is something for the judge to consider when sentencing, and while they do make some spectacular cock ups in this area (in both directions) it’s not as often as the media makes it look. I watched one case where the papers more or less called the judge a soft bastard and reported how the family of the victim were hopping up and down with rage and doing the whole ‘this isn’t justice’ thing, just as the family of the defendant were gutted and felt that it was heavy for a basically decent person who made a bad decision which had tragic consequences. But it was like I was in a different courtroom and had heard a completely different summing up explaining precisely why the sentence was the length it was. And you know what? I’d say the judge nailed it. Absolutely bloody nailed it. King Solomon couldn’t have handed down a fairer sentence, and this happens far more often than you’d expect.

          A jury certainly couldn’t have improved on it by ruling that he’d been guilty of something more or less severe and possibly tying the judge’s hands with regard to the sentence, not least because the judge has the time to sit and pore over every tiny detail of the case, the background, legal precedents and so forth – in fact he’s paid to do that and as well as his own experience and knowledge of the law he’s provided with a massive law library and staff to help him. The jury haven’t got all this, but they do have homes and lives and jobs to return to. Can you expect them to give that same level of attention, especially the self employed ones? Is it even fair to take them from the jury room and then shut them in the law library instead, possibly for weeks and weeks? In all honesty I don’t think I would reach a fair decision because I’d be looking to bust out of there and back to my life as soon as bloody possible. I know it’s not quite the same as what you’re suggesting but the time involved would be similar because the jury would have to research all the different things it could be before settling on which one it is.

          Actually that’s just made me think of something else. What would happen in your model if the jury had agreed on guilty but were then hopelessly split on what offence it was that they’d found the guy guilty of? That would be unfair to the defendant but also to the victim. Again, another reason for tasking juries with deciding if the prosecution proved its case and nothing more.

          Only once they had made a Guilty decision would the jury then go on to evaluate the level of that guilt on the offence-scale, using the evidence presented to establish the absolute offence.

          See above. Not their job, and I think with good reason. I would be most reluctant to submit to a jury that gets to decide what I’m guilty of rather than whether I’m guilty of what I’m accused of, and I’d be very afraid if I was dragged in front of one.

          But it is a very different question from the current one asked of a jury, hence the likelihood of unbalanced outcome would be reduced.

          Absolutely, but as I’ve said the unbalanced nature is not a bug but a feature. The system is that way on purpose to protect the innocent, it’s just unfortunate that it’s impossible to protect the innocent without some of the guilty escaping justice. However, better that than the other way round.

          • Mudplugger
            December 13, 2011 at 8:27 pm

            Like your ‘hung’ jury, we’ll agree to differ, but good debating fodder.

  4. December 13, 2011 at 9:45 am

    I suppose they think that we don’t remember that when they got rid of the death penalty for murder they promised us a life sentence for the convicted and that “life would mean life”, none of this ten year standard tariff nonsense.

    What would be the situation, under the new propoposals, of a Transgender person murdering a Normo in a fit of self-pitying rage? Would that be a hate murder?

  5. john in cheshire
    December 13, 2011 at 10:23 am

    On the plus side, when we finally get around to actually stringing up all the looters and destroyers of our nation, we won’t be punished too harshly (if we are caught, that is). So, I think they are making revolution a little easier for us.

  6. Jiks
    December 13, 2011 at 12:43 pm

    “My take is that there should BE no ‘aggravating factors’ other than those used in the commission of the crime – a tariff for malice aforethought and planning, for torture before death, for attempts to evade capture – but nothing for why the victim was chosen.”

    This, with you 100% there. Everyone’s life has the same value to them, even if they they have a low hand in the game of victimhood poker. Also conviction for murder should mean life IMO so this whole idea is wrong on every level.

  7. December 13, 2011 at 1:06 pm

    I cannot for the life of me understand why we appear to have gone back to a system of classifying victims as more victim-y than others.

    I can understand the sweep of emotion when the victim is very young, old or otherwise vulnerable but that’s not the correct rational response. It’s simple to test this: would we again accept a weregild system which explicitly assigned different monetary values to the lives of different victims? The answer ought to be ‘no’ but as far as I can tell it is ‘yes’.

    If we won’t accept it when there are monetary numbers attached, why accept it just because the tariff is in years rather than guineas?

  8. Dave
    December 13, 2011 at 10:42 pm

    There always has been an ‘aggravating factor’ in these cases – ‘with malice aforethought’ which makes it murder rather than a lesser offence, such as manslaughter, and this is the only one that should be considered. As to any other aggravating factors, the victim is no less dead regardless of their skin colour, religion or sexual orientation, so these shouldn’t even be considered.

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