The mandatory stupidity of politicians

Ministers announcing minimum sentences for high-profile crimes looks tough, but is bound to lead to injustice

by Rob Lyons 

Politicians do love mandatory sentences. They really put the Something into Something Must Be Done.

When there seems to be regular outcry at the fact that a killer or rapist has been let off lightly by some supposedly bleeding-heart judge, the announcement of a new mandatory sentence ‘sends out a message’ that society disapproves of particular crimes so much that there are no shades of grey: conviction must lead to draconian punishment.

To that end, a new set of offences and mandatory sentences has come into force this week in England and Wales. There is now a ‘two strike’ system for serious violent or sexual offences. Someone convicted of such an offence for a second time would now receive an automatic life sentence ‘unless to do so would be unjust’. Extended determinate sentences (EDS) will apply to dangerous criminals who might otherwise be allowed to leave prison on parole after serving just half their sentence (which is normal practice). Under EDS, such prisoners could be forced to serve at least two thirds or even all their original sentences.

There will also be a new offence of aggravated knife possession. For anyone who carries a knife and wields it in a threatening or dangerous manner in a public place or school, there will be a minimum six-month sentence for adults and four months detention for 16- and 17-year-olds.

These new rules, like other mandatory sentences before them, are either so much political puff - a nice announcement that demonstrates firmness while being meaningless in practice - or open up the very serious possibility of injustice.

For example, retired judge Anthony Lloyd wrote scathingly against the new ‘two strikes’ law back in May: ‘Despite the use of the word “must”, there is no must about it. For the clause recognises that judges must pass sentence they believe to be just in the particular circumstances. That is what judges always do. Why then does the government persist in calling the sentence mandatory? It cannot surely be to influence the judge’s belief as to what is just, or to create some sort of presumption in favour of a life sentence. How would the judge know what weight to give to such a presumption?’ For Lloyd, there are already far too many British prisoners serving mandatory life sentences when long, determinate sentences would be better.

But if a mandatory sentence is not guff, then it may well be unjust. Take the high-profile recent case of former SAS soldier Danny Nightingale. In early November, he was sentenced to 18 months imprisonment by a court martial after admitting possession of a Glock 9mm and 338 rounds of ammunition. Nightingale claimed that he had forgotten he had the gun which was, he said, a gift from Iraqi soldiers when he finished his tour of duty there. Last week, Nightingale successfully appealed his sentence, which was reduced to 12 months and suspended for 12 months. In other words, he will serve no further time in prison if he stays out of trouble for a year.

For all the protestations about his innocence, Nightingale is a lucky man. As amended in 2003 under New Labour, the Firearms Act 1968 now includes a mandatory minimum sentence of five years for ‘possession, purchase, acquisition, manufacture, transfer or sale of certain prohibited weapons’ including handguns. The mandatory sentence can only be reduced in ‘exceptional circumstances’, but these are narrowly defined. So, for example, ‘leaving a firearm in an insecure bedsit after deciding not to use it to commit suicide was held not to be “exceptional”’.

If Nightingale’s explanation is true, it would, of course, be unjust to sentence someone to a long prison sentence in the circumstances. But that is the danger of mandatory sentences: in order to allow politicians to look tough, people will be sent to prison for long periods for no good reason. They are simply collateral damage in the war against drugs or guns or whatever war happens to be the order of the day.

It is true that moral standards change. What was once a serious crime - for example, possession of drugs - may be seen as routine, while other offences - like domestic violence, perhaps - are seen as much more serious than in the past. But this can be reflected in sentencing guidelines while allowing flexibility in individual sentences. The cheap political point-scoring attached to mandatory sentences does little or nothing to solve the real problem of crime, which is often overstated in any event. But it does ensure a greater possibility of injustice occurring.

Really serious crime is still rare and much of it involves criminals attacking criminals. But this law-and-order posturing is a good example of politicians nurturing and feeding off public fears in order to justify their own existence.