‘Only nature knows how to justly proportion to the fault the punishment it deserves.’ That was the view of Percy Bysshe Shelley and it still has resonance today. Despite a legal landscape that has evolved to incorporate sentencing guidelines and honed criteria after centuries of case law, we are a society that is fractured on the notion of punishment.
The use of the word ‘punishment’ will cause outrage among liberal penal reformers for whom the paramount purpose of a sentence is to rehabilitate. That emphasis springs from an offender-centric perspective that is over-represented and over-reported.
For example, 15-year-old Will Cornick, who brutally murdered his school teacher Ann Maguire in front of classmates and was found to be sane and lacking in remorse, was sentenced to imprisonment with a 20-year minimum tariff. The Standing Committee for Youth Justice was outraged. It declared the sentence ‘too long’. Chair Penelope Gibbs announced that more emphasis should have been placed on rehabilitation and questioned how an indeterminate sentence could ever be proportionate.
Proportionality is elastic. It depends on myriad factors and, crucially, whether it is viewed from the perspective of a victim or transgressor. The victim perspective will produce a very different result. Ann Maguire (pictured) lost her life. Her family lost her. That loss is too great and too long. How can a 20-year tariff possibly be disproportionate once we accept that it is punishment?
Punishment is not a dirty word nor is it a novel legal concept. It has long existed. The novel approach would be to sentence solely on the basis of rehabilitation to the exclusion of justice for the victim. Justice for the victim has traditionally recognised the need for retribution to balance the books and to act as a deterrent. Justice is not justice for all if it shifts the emphasis too far toward the offender’s rehabilitation. In practice, rehabilitation is difficult to measure or achieve. Our prisons are full of rehabilitated reoffenders.
Cornick’s sentence drew further criticism from the Howard League for Penal Reform. Chief executive Frances Crook said the decision by Mr Justice Coulson to lift the boy’s anonymity meant that ‘he would never be able to grow past the crime he committed’ and was not in the public interest. This approach seems to be at odds with traditional notions of punishment and public interest and was contrary to the view expressed by the lord chief justice, Lord Thomas, who, following the discharge of the jury in the alleged terrorism trial of Erol Incedal, declared that an accused in a criminal trial should ‘never, ever be given anonymity’.
The demand for anonymity is to protect an offender. Its rationale is that once released from the sentence the punishment ends and anything that would prejudice that process, such as notoriety, must be overcome. There is no equivalent protection or release date that brings finality for victims and their families. Their pain can be indeterminate and the cloak of anonymity ought to be used only in the very rarest and exceptional of circumstances.
Our justice system, by its very nature, focuses on the defendant and not the victim. That is a byproduct of the presumption of innocence. The prosecution does not represent the victim whereas the defence, of necessity, represents the defendant. The result is that the voices of the victims are often drowned by those whose paramount regard is for defendant justice. Penal reform groups rarely campaign for sentences or procedures that reflect the victim perspective or measures that better protect them. Victims should, at the very least, be afforded influence equal to that afforded to the offender.
In truth we pay lip service to victim’s rights. While we have a Code of Practice for Victims of Crime, a Commission for Victims and Survivors and a victims’ minister, there are no enforceable rights or procedures that hand any real power or role to victims. We acknowledge the need to protect, support and listen without committing to anything.
Society demands that our justice system recalibrate itself. A truer picture has begun to emerge of the scale of the problem, of the many victims who will never see their offender pursued, an arrest made, a charge brought or a trial held. We need a shift in focus that properly filters the victim’s perspective and presence into our system and demonstrates they are stakeholders.
We should not leave nature to justly proportion to the fault the punishment it deserves when we have those that suffer the fault to add their voice.
Dan Hyde is a partner at Howard Kennedy