The Magistrate's Blog (2005-2012)

This blog has migrated to www.magistratesblog.blogspot.co.uk This blog is anonymous, and Bystander's views are his and his alone. Where his views differ from the letter of the law, he will enforce the letter of the law because that is what he has sworn to do. If you think that you can identify a particular case from one of the posts you are wrong. Enough facts are changed to preserve the truth of the tale but to disguise its exact source.

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Location: Near London, United Kingdom

The blog is written by a retired JP, with over 30 years' experience on the Bench.

Friday, May 20, 2011

Beyond Our Ken

It's been another good week for judge-bashing, not to mention another chance for the Right to have a pop at Ken Clarke. The Telegraph has an excellent piece about Lord Bingham and cooler heads are starting to bring some balance to the Clarke-bashing fiesta. These comments are from letters to The Times (I hope that I may be forgiven for quoting from behind the paywall)

Sir, Unlike politicians, government ministers and most Lords Chancellor, judges are not put into the ring without some form of training. A judge who tries rape cases must have what is called a “rape ticket” and before he achieves this will have undergone training in the conduct of all sex cases, and this training is a continuing process. The process includes sentencing, and it stands to reason that though a serious criminal offence, the sentence must vary with the nature of the evidence.

There must be some difference between an 18-year-old male and a 15-year-old girl who is willing, but who because of her age cannot legally consent, and an intruder who rapes an elderly or indeed any occupant.

What has caused the “disarray” is the interference by politicians in the sentencing process through loose comment or opportunist castigation.

Parliament sets the limits, but it should be entirely a matter for the judges to set the parameters in accordance with each individual case, and indeed without the added confusion of a Sentencing Council.

His Hon Barrington Black
London NW3

Sir, There is a world of difference between saying that not all rape is serious, and saying that not all rapes are as serious as each other. Ed Miliband surely cannot consider that every rape is precisely as serious a crime as every other rape. If he did, then he would be calling for a fixed sentence to be handed down to every convicted rapist, however different the circumstances of the individual crime. He has never called for this in the past, and I do not hear him calling for it now. So either he was incapable of understanding what the Justice Secretary had actually said or, in disingenuously calling for his resignation, he is expressing an outrage that is wholly synthetic.

Mark Sefton
London EC4

Sir, Our jurisprudence has long recognised that there are degrees of culpability in the committing of a given crime. That is why a range of punishments is often available, to reflect the relative seriousness of the offence in question. Is the punishment of rape really to be excluded from such consideration? Or has rape become one of the increasing number of topics that no one is permitted to discuss honestly in public?

Gerald Gouriet, QC
London EC4

Sir, I applaud Ken Clarke. I would be rather concerned if the Justice Minister was unable or unwilling to draw a distinction between the gradations in seriousness that apply to every criminal offence and which are reflected in the sentences handed down by the courts. If rape was subject to a “one size fits all” sentencing policy then inevitably the perpetrators of the most appalling rapes would be woefully under-punished. Gradations in seriousness are necessary to ensure that the punishment fits the crime.

Peter Newman
London EC4

Sir, A resignation is certainly required, but it is not Kenneth Clarke’s; it is Ed Miliband who should resign. Whether or not he had bothehttp://www.blogger.com/img/blank.gifred to listen to the radio interview first, Mr Miliband appears to have no appreciation of the law and is therefore ill-equipped to be involved in its creation. Mr Clarke was absolutely correct in what he said and left no room for interpretation. The media storm over this issue brings shame to this country.

Hamish Hossick

What do you think?

Later - here is more sense.