Lost principles

James Morton takes a look at the controversy surrounding Lord Woolf's burglary comments, and comes to the conclusion that the four pillars of sentencing appear to be crumbling

It is nearly 30 years ago that in the case of Sargeant [1974] 60 CR App R 74, Lord Chief Justice Lawton set out the four cardinal principles of sentencing - retribution, deterrence, prevention and rehabilitation.

In the last few weeks it seems that all of those four have finally flown out of the window.

In successive weeks we have had the Lord Chief Justice seemingly ruling out immediate custodial sentences for first and second-time domestic burglars.

A belated clarification has not really reassured the public.

The Lord Chief Justice was quoted as saying: 'The new approach to sentencing is intended to provide better protection for the public and to result in some reduction in the use of custody.' The Lord Chancellor, always a man with his finger on the public pulse, had earlier backed Lord Woolf, saying he doubted that all that many members of the public would mind being burgled and watch their attackers go free.

And it is not just daytime burglars looting empty houses for goods for which the owners have saved to buy or are still paying for on credit loans.

The Daily Mail (January 13) reported a case in which a knife-carrying burglar has received a two-year supervision order.

The convicted man was quoted as saying, 'I had good reports'.

Well, as Ms Rice-Davies would say, he would have, wouldn't he? So that's the retribution part gone.

I know justice must evolve, but once upon a time, back when I started practising, burglars did not get bail.

There was an old case - I forget the reference and it doesn't matter now - which said it was an unkindness to allow people out after being caught housebreaking when they were going straight back inside.

I suppose one good thing about the Lord Chief's pronouncement is that burglars on bail will not need to do another job to provide for their wives and kiddies while they're away, since they won't be away in the first place.

Then there is the question of deterrence.

Time and again those of us with in-depth knowledge of criminals have said that first, they do not believe they will be caught, secondly, if caught that they do not believe they will be convicted, and thirdly, if by any mischance they are convicted, they believe they will not go to prison.

Now, in the case of burglary, they have it in writing.

The first strand to deterrence is being caught and now we have the news that the police are cutting back on investigating burglaries.

According to a Metropolitan Police guideline again quoted in the Daily Mail, only cases such as rape, child abduction and murder should be investigated automatically.

Others should be investigated only if it is, 'deemed solvable using proportionate resources' - whatever that means.

So there goes deterrence.

I was horrified to see a letter in the [2003] Gazette, 9 January, 12, in which solicitor Frank Winslett writes that one of his Crown Court bills has been reduced on the grounds that it was a 'B' grade case which does not justify a higher earner fee.

The case in question was a rape charge.

Others included a dangerous driving and a robbery case.

Now one can probably see grounds for saying dangerous driving is a grade B case, although the upshot for a badly represented defendant be a spiral of job loss leading to a non-custodial sentence for burglary.

And it is possible to argue that robbery now means nothing more than a street attack and the loss of credit cards, jewellery, money and a few bruises calling for a suspended sentence, if ever investigated.

But the really horrifying downgrading was the rape case.

Since this effectively carries a minimum five-year sentence, coupled with the effects on the victim, how can any civil servant argue that this ranks along with dangerous driving? Let us hope the police never hear about this decision or they may cite it as an excuse not to investigate rapes unless they are deemed solvable.

What about the other two strands of sentencing which seem to go hand-in-hand - prevention and rehabilitation? As we all know, there is little rehabilitation in prison and there are serious difficulties in the probation service with increasing numbers of clients.

The national standard observed by the service requires a client initially to attend the office on a weekly basis and then fortnightly and monthly.

I understand that this has been suspended in a number of areas.

And with the increase in clientele it is not likely to get any better in the foreseeable future.

Meanwhile, I see that Tony Martin, the farmer who shot and killed a burglar, has been refused parole apparently on the grounds that he is a danger to burglars.

A few crocodile tears and a spot of religion, however brief, might have helped there.

***

I missed the end of the siege in London which lasted the better part of two weeks but I was interested to read that one of the reasons for the prolonged stand-off was the protection of the gunman's human rights.

All very admirable, but I wonder whether the time has come when under some circumstances a person, if not entirely forfeiting his human rights, could not have them suspended.

Like the Riot Act, a magistrate could read the edict over a loud hailer.

'If you do not come out in one hour your human rights will be suspended for the next two hours' (or three days, etcetera, depending on the gravity of the situation).

But, I suppose, if someone is holed up facing an artillery of police and is resisting their efforts to persuade him to come out, the loss of his human rights is not going to worry him too much.

James Morton is a former criminal law specialist solicitor and now a freelance journalist