Another day, another assault on the legal system by the Home Office backed up by yet more flummery about ‘putting the rights of the victim first’ – this time its proposals to bypass the courts in many cases of petty offending by having defendents who plead guilty to offences such as theft, shoplifting and criminal damage ‘sentenced’ by a prosecutor in consultation with the police.
Laughably, we get these unattributed comments from ‘unnamed’ Ministers, which is usually a clear sign that the government is floating a dumb idea to see what kind of reaction it gets in press before decided whether its serious about it or not.
Ministers say the aim of the latest plan is to speed up the system and save money. About £350 million is spent every year on legal aid for cases heard by magistrates.
“It is not just about money,” one said. “We need to put the victim at the heart of the criminal justice system.”
Ministers insist that serious crimes, including any that could lead to a custodial sentence, would have to be heard in court. However, they admit that there is “a grey area” about what sort of crimes should be included.
Let’s be clear about the legal parameters of this proposal in human rights law. There are two specific articles of relevance to this proposal; Article 4, which prohibits slavery and forced labour and which states clearly that:
No one shall be required to perform forced or compulsory labour.
3. For the purpose of this Article the term “forced or compulsory labour” shall not include:
(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;
(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
(d) any work or service which forms part of normal civic obligations.
And Article 5 (Right to Liberty and Security) which includes this provision:
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
Now, a combination of a prosecutor and consultation with police is not what would be considered under human rights law a ‘competent court’ – not only does such a court have to be properly consituted but, crucially, it must also be independent of both the Executive and that part of the State which is directly involved in the investigation and prosecution of criminal offences.
Therefore, under these proposals, the hypothetical prosecutor dealing with a guilty plea can neither impose a custodial sentence (under article 5) nor could they legally impose a community punishment on an offender under the terms of article 4, which permits both forced labour – which is what a community punishment is – only as an alternative to a custodial sentence and then only if imposed by a court which is deemed competent to hand down custodial sentences.
With that in mind, the most severe sentence that could legally be handed down by a prosecutor in dealing with guilty plea, without recourse to court proceedings is a financial penalty – a fine.
Here we appear to have a rather unusual definition of ‘putting the victim at the heart of the crinimal justice system’ – one which operates only inasmuch as the victim is prepared to take the view that justice is done by permitting offenders to pay their way out of trouble. This is somewhere between the old Anglo-saxon practice of wereguild and the latter-day practice in Islamic countries which allows offenders and their families of offenders to buy-off certain charges but compensating the victim and/or their family – minus the judicial process which is/was present in both.
Of course, whether this is what the ‘victim’ wants appears, at first sight, to be entirely immaterial – is a prosecutor really any better judge of what a victim might consider appropriate restitution than a magistrate or a judge, especially when the ‘sentencing’ options open to the prosecutor are substantially more limited than those open to a court? I don’t think so.
Proposals such as this seem to me to have less the character of justice and more the character of a protection racket where justice can be bought off just as long as you can afford to pay the tariff and, as such, it neither serve the purposes of justice nor does it serve that of ‘putting the victim at the heart of the justice system’ – it merely allows the better-off petty criminal to buy their out of the embarassment of a court appearance.
But then that’s Blair’s justice all over isn’t it – if you can’t do the time, just pay the fine.