The mechanical judiciary

In the tradition of Montaigne and Orwell, Rory Stewart MP has an extremely important blog post about the need for judicial decisions to be be made case-by-case, using humane wisdom, intuition, and discretion, and not by deterministic or mechanical algorithms. The same applies to most important decisions in our lives and our society. Sadly, his view runs counter to the thrust of modern western culture these last four centuries, as Stephen Toulmin observed.   Our obssessive desire for consistency in decision-making sweeps all before it, from oral examinations in mathematics to eurozone economic policy.

Stewart’s post is worth quoting at length:

What is the point of a parliamentary debate? It isn’t about changing MPs’ minds or their votes. It wasn’t, even in the mid-nineteenth century. In the 1860s Trollope describes how MPs almost always voted on party lines. But they and he still felt that parliamentary debate mattered, because it set the terms of the public discussion, and clarified the great national questions. The press and public galleries were often filled. Churchill, even as a young backbencher, could expect an entire speech, lasting almost an hour, to be reprinted verbatim in the Morning Post. MPs put enormous effort into their speeches. But in the five-hour debate today on the judicial sentencing council, the press gallery was empty, and for most of the time there was only one single person on the Labour benches – a shadow Minister who had no choice. And on our side, a few former judges, and barristers. For whom, and about what, were we speaking?

The Lord Chancellor, Ken Clarke, used his speech for a genial seminar on the law, parliament and the press – teasing MPs for their complaints about judges, and reflecting: “When I was a young boy, the right-wing press complained about soft judges and soft sentences. They still do. And I am sure they will in fifty years’ time – if they survive that long.“ The Member for Guildford talked about the horror of burglary and called for tougher sentences. The member for Broxtowe, Anna Soubry, who had been in criminal law for over twenty years, talked about the daily challenges in court.
They were good speeches, rooted in expertise and long experience. But I felt they could have been made also outside the chamber. For me, the big question, which belonged uniquely in parliament, was not how to improve the sentencing council in detail but whether we should have it in the first place. The new sentencing council was introduced by the last government to provide guidelines for judges, and stop discrimination (ensuring a burglar in Penrith was punished like a burglar in Poole). It does so through making judges tick boxes, and follow a flow-chart to a recommended sentence. Grievous bodily harm, for example, requires considering 19 factors – aggravating, and mitigating, statutory, and non-statutory – which generate 3 categories, to which 25 additional non-exhaustive factors are attached, in the first two steps of nine. Judges can only ignore the guidelines at the risk of going to the appeal court. This has produced more consistency. But it is wrong.
Government, through parliament, can define crimes, and punishments. But it should never push into the courtroom itself and try to micromanage court proceedings. The metrics don’t work because the different circumstances of each crime, the criminal, his history, and the appropriate punishment, are not things which can be reduced to a mathematical formula. We appoint judges precisely to provide the intuition, sensitivity to context, and experience which a formula lacks. And judgement is not simply a technocratic process of analysing evidence. It is about moral choice. The judge has to weigh the crime and the criminal alongside the conflicting principles of deterrence, protection of the public, rehabilitation and – in the fullest sense – justice. A check-list is not ethical reasoning.
And – this is more controversial – the sentencing guidelines weaken the jury, because they make it almost impossible for the jury to know the relationship between their verdict and the likely sentence. In the past, through ‘pious perjury’, a jury, which thought a sentence unjust, could protect a criminal by ruling him not guilty, or guilty of a lesser crime. They used this power to show mercy when minor crimes held a mandatory death sentence. This was, of course, a dangerous power: juries are supposed to follow the law, not second guess it. But in exceptional circumstances, the jury’s raw power to control the sentence through the verdict is an ultimate protection for citizens against the judicial system and against the government. Juries have used it to defy oppressive governments by refusing to convict dissidents of libel. And even today, juries will not find people who have participated in an assisted suicide guilty, because assisted suicide carries a life sentence.
This complex sentencing algorithm, therefore, by restricting the judge and further distancing the jury from the sentence, weakens both guardians of our liberty. It reflects our culture’s obsession with metrics, quantification, and formulae for everything from landscape protection to international intervention. But our liberty relies on humans. We give power to 12 ordinary jurors not learned specialists because we are best protected not by pseudo-science but by common-sense, human relationships, compassion, and common understanding. And the judge’s most precious possession is not his learning but his human judgement. To force rigid formulae and check-lists – the natural machinery of all governments –into the court-room, is to allow the government to dominate that which was designed to protect us from government. It is ill-advised and unconstitutional.
So, at least I argued. But to what avail? I won’t count the number of hours I put into writing the speech, on top of the five hours in the chamber. I spoke to an audience of six, and there was no opportunity to vote, still less abolish the sentencing council. Sometimes – perhaps twice a year – parliament can do something unexpected and change government policy (I think I managed that on mobile phone coverage, last year). But generally a speech is simply a page in a parliamentary record, a message in a bottle, to some unknown, perhaps non-existent, reader. So, it is with some relief that I am now heading back up to the weekend’s events in Penrith, Longtown and Kirkby Stephen. I love constituency work, and I can see the point of government. But parliamentary debate still perplexes me.”

Stewart’s speech to the House is here (Hansard 2012-02-02):

Rory Stewart (Penrith and The Border) (Con):  I rise with an enormous amount of insecurity because I am talking to so many learned friends on a subject about which I know so little—I feel a little like a woolly mammoth staggering into a law library.  My speech is really a series of hints followed by guesses, with perhaps some questions about the relationship of the Sentencing Council to our constitution.
It strikes me that there is a danger with the Sentencing Council that I would love to hear the Government address. It seems—if I may use portentous language—to be a threat to the liberty of Englishmen. I say that deliberately because it does not, of course, apply to Scotland, and I would not presume to speak for Wales. The Sentencing Council is a threat to the liberty of Englishmen because despite its best intentions—we have heard wonderful stuff about predictability, transparency, consistency and public trust—it is attempting to step on sacred ground. It is going where the state and administrators should not go; it is trying to cross the threshold of the courtroom door.
We in Parliament are connected to many things that are to do with the law. We create the law, and we define crimes and the factors relevant to them. We can even state the maximum sentence—or, in exceptional circumstances the minimum sentence—for a particular crime. We should not, however, become involved—and I fear that the Sentencing Council is involved—with the exact processes and factors that operate within the courtroom itself, and in particular with the independence and power of the jury and the judge.
We have heard a certain amount about the independence of the judge, but the most important point concerns the jury, which has a direct interest in knowing the connection between its verdict and the judgment reached. It is difficult for it to see that connection, however, in the current world of the Sentencing Council, which is an astonishingly opaque universe that might appeal to a management consultant or to a Taylorist soap factory. For example, in the case of grievous bodily harm, the Sentencing Council attempts to define nine aggravating factors, three statutory aggravating factors and 25 additional factors, and then to churn the whole thing through a sausage factory of nine different steps until a judgment is produced through that complex algorithm. How is the jury expected to understand the consequences of its verdict on such a judgment?
Purists may say that such things are none of the jury’s concern, and that the jury does not need to know the sentence as its concern is merely with the verdict. However, that has never been true in English common law, which from the beginning has contained the notion of pious perjury—in other words, the jury’s ability not only to determine the verdict, but to have an influence on the sentence. That was important, of course, when the death penalty attached to basic crimes, and it is still important today when we consider issues such as assisted suicide. It is a very important part of our liberty that the jury retains the discretion to affect the decision.
The second set of problems with which we are dealing concerns the independence of the judge. The jury is the preservation of our liberty, but the judge also has two important hands that are manacled by the Sentencing Council. The first is his ability to reach a decision based on the complexity of an individual case. The algorithms produced by the Sentencing Council—the lists of nine or 25 factors—are simply, in its own words, “non-exhaustive” lists of the factors that a judge is supposed to take into account. He is supposed to recognise the individuality of the crime, and the nature and history of the criminal. Those are the things for which we employ a judge—the things that a human is better able to provide than a machine or some checklist produced by the Sentencing Council.
The deeper, bigger problem is that the judge is not simply involved in a forensic investigation. It is not simply a question of fact or the analysis of evidence; at its deepest level, it is a question of morality and philosophy. When the judge determines a sentence, he is supposed to take on board not simply the crime and the history of the criminal but all the issues that we have heard about today—deterrence, public protection and justice in its broadest sense. They are not instrumental or factual questions but normative questions of morality and philosophy. Those things cannot be outsourced to a Sentencing Council that wishes us to tick boxes.
The defence of the Sentencing Council—that the guidelines are not mandatory—is of course deeply disingenuous. It is only under the most exceptional circumstances that judges can depart from them. Let us therefore remember that the reason why we have for so long protected the independence of the jury and the judge in English common law from exactly that type of administrative state interference is that we are English, not French. Such interference is a very Napoleonic approach, implying that the administrative state, with its astonishing mathematical formulae and algorithms, can generate the appropriate sentence within the hallowed space of the courtroom.
We must fight against that, because from the very foundation of our jury system, the basic principle of English common law has pushed against the idea of learned experts with their technocratic micro-management and instead recognised, since the early mediaeval period, the importance of even semi-literate jurors. The qualities that we look for in justice are not those of mathematical precision and science but those of common sense, human relationships, understanding and fellow feeling. In the judge, we look not simply for his learned nature, but for his compassion, philosophical insight and morality.
I conclude with a small reference to Blackstone. However convenient the new methods of trial may at first appear—indeed, all arbitrary methods are convenient at their first appearance—let it be remembered that the delays and minor inconveniences in the forms of our justice are the price that a free nation pays for its liberty in more substantial matters.”


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