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Tory Lady

I suppose that these young children would not have been raped if they were getting the loving care,attention and security from their Mother in the first instance. Children need their Mothers and Fathers.
Also I am not sure the Tory Party is the Party of Women following the disgraceful attendance by Female Tory MPs at the Harman debate in the Commons this week. It was left to the Tory Male MPs to debate.


What on earth does overhaul "our liberal judiciary"? The problem, by and large, is the guidelines set down by the Government and circulars advising against prison sentences due to overcrowding.

Andrew Lilico

Sorry, Louise, but I don't believe that you sat through all the evidence at these trials - I know I didn't - and so neither of us is anything like as well placed as the judges involved to comment on whether the sentences were appropriate. If it were so easy that we could just say: Crime of type X should get sentence of length Y, then we wouldn't need judges.

My view is the opposite - I think there is already much too much political and legislative interference in judicial decision-making. Judges should not be politically-appointed, and there should be no question of politicians dismissing judges because they don't like the sentences meted out. And (aside from very general questions such as whether capital or physical punishments should be available)legislation should not curtail the discretion of judges over sentence lengths.



I think an investigation of West Yorkshire Police might be in order to see why it is inefficient and expensive, and why it is so PC that it might be in danger of creating apartheid-policing and separate development with ethnic-based promotion.

Whatever merits might be found in the way things operate, the danger of suspicion and alienation within both the public and the police force itself ishighly dangerous in cities as segregated as Bradford.

Evan Price

The criticism of individual decisions without the benefit of hearing the evidence in an individual case is really quite silly ... another problem that arises is that the decision on sentence takes into account directions from the Sentencing Guidelines Council and leaves the judge with very little freedom to set a sentence that he thinks fit.

Just to give you an idea of what I understand happens - the Judge looks at each charge on which a conviction has been achieved individually. On each charge he/she must then consider the 'tariff' for the particular offence; he/she will then consider particular aspects of the procedur in the case and carry our adjustments to the tariff according to the guidelines - so much off for a guilty plea; so much added for a breach of trust; and so on. In relation to this process he may be required to listen to submissions from each side. He reaches a decision on the first charge and then must carry out the exercise for each of the other charges for which the accused has been found guilty.

A problem with this mechanical process is that it takes too much time. Another is that it effectively removes the discretion of the Judiciary to set sentences according to what they think fit, having heard the evidence. Another is that it permits governments, through the sentencing guidelines council, to interfere in the sentencing process - and then claim that it is all the fault of the judges (you can just hear them, can't you ... 'Not me, guv'). It results in unconstitutional interference in the judicial process ... and, I am sorry to say, allows the uninformed to criticise. Sorry, Louise, but that does include you when you start to criticise individual decisions ... the problems lie with the SGC and the Government, not the Judges. The Judges do not, in my experience, judge people according to any set of values; in criminal cases they apply the law to the facts, as found by the judges of fact, the jury. In the magistrates' courts, they assess the facts as well. But their discretion is limited and one of the complaints that I hear almost every time I attend a meeting at the Middle Temple is that they do not have the discretion that they used to have and that sentencing is something that they do not like for the reasons explained in this post.

Louise Bagshawe

Evan - I take great care to blame the govt and their quangos for the sentecing guidelines they offer.

However, the judges themselves, who often make comments in rape cases about "provocative" dressing, as in the case cited above of the 10 year old (at least that case is being reviewed), are also at fault and part of the problem.

Stepping away from women and children to the wider issue of lenient sentences, one of Britain's most senior judges said recently that he thought 5 years in jail was a cruel and unusual punishment no respected society should tolerate.

I can thoroughly recommend a book called "A Land Fit for Criminals", written by a probation officer of 25 years standing, that examines liberal attitudes within the probation service and the judicary - from which the poorest and weakest, stuck in crime-ridden areas, suffer most.

Paul D

So yet another article portrays all domestic abusers as being male. A significant minority (I believe 10% or so) of cases are female-on-male and 47% of child abuse instances are committed by the mother - so please let's not portray all men as evil and all women as victims because that is not the case

Tory Lawyer

It would be abhorrent to politicise the judiciary.

Allowing the Government of the day to remove judges would make a farce of our legal system. That sort of thing is only permitted in banana republics and even then they usually attempt to work within some sort of rule of law framework.

Judges have an incredibly difficult job and do it incredibly well. You cannot blame them for sentencing within what they are allowed to.

As for rape cases, it is very difficult to come up with a verdict that is acceptable to the tabloids in every case. The Government, to their credit, have introduced far stronger laws to protect victims, which include presumptions against the defendant in many circumstances.

In addition, it is worth knowing that the CPS are, generally, about as competent as monkeys at bringing cases. Their ineptitude bears much responsibility for so many rape cases failing.

Michael McGowan

Louise, I think your attention would be better directed at the Family Division of the High Court. For starters, why is it that a Liberal Democrat MP, John Hemming, is leading the political opposition to the Star Chamber procedures and near-total lack of transparency that are alive and well in the family courts?


Family Division of the High Court

Wasn't that the bailiwick of Judge Butler-Sloss, nee Havers.....and didn't we have the efforts of Brenda Hale through the Law Commission to screw up the Family Division completely ?

Sean Fear

I certainly accept that the comments about the "provocatively dressed" ten year old were pretty crass, but criminal judges are not, in most cases, overly lenient.

Evan Price

"However, the judges themselves, who often make comments in rape cases about "provocative" dressing, as in the case cited above of the 10 year old (at least that case is being reviewed), are also at fault and part of the problem."

This does happen ... but in criminal cases, the Judges sum up the evidence and tell the jury about the relevant law. If the advocate of an accused has made a particular submission that arises from evidence given, the judge is bound to refer to it in order to ensure a fair trial. The same can be said when it comes to the sentencing decision. In my experience, admitedly not within the criminal context, cases and the Judiciary are almost never quoted accurately in the press; the context is vital and almost always ignored.

"Stepping away from women and children to the wider issue of lenient sentences, one of Britain's most senior judges said recently that he thought 5 years in jail was a cruel and unusual punishment no respected society should tolerate."

Can you tell me which judge this was? The only references to this sort of comment I can find are related to comments made in Human Rights claims in Canada and the US. Many civil judges would consider 5 years' imprisonment cruel and unusual for a first offence of, say, theft without violence. Again, the context is all important. We need to know the context in order to be able to assess the validity of the sentiment expressed.

"I can thoroughly recommend a book called "A Land Fit for Criminals", written by a probation officer of 25 years standing, that examines liberal attitudes within the probation service and the judicary - from which the poorest and weakest, stuck in crime-ridden areas, suffer most."

I haven't read the book ... I will see if I can get a copy. Having said that I have seen reviews of it ... wasn's his most damning criticism of the probation service?

I accept entirely that judges make mistakes and do make comments that are mistaken. See the recent debacle involving Peter Smith J. But to comdemn the judiciary as a whole for these mistakes (which are remarkably few - when compared with other jurisdictions) is targeting the wrong target. I also agree that you have blamed the Government too ...

The simplistic attack on the 'liberal' judicairy ignores the facts that the judiciary work within the system of law made in Parliament. One third of all the provisions past in relation to Criminal law in the last 10 years has never been brought into force! The Government has created a new offence for almost every one of the days that it has been in office. The Government's obsession with targets and 'proving' that it is living up to its 'promises' that the Police and CPS spend too much time dealing with paperwork. The failure of the contracts with private companies administering aspects of the criminal justice system, mean that tagged convicted criminals get away with offences and breaching the terms of their conditions. The police, even though there are more of them, are not able to keep up with the demands being made on them by the Government. The number of times that lawyers and judges complain about the failure of the prison services (private and public) to bring an accused to court at the time allotted for a trial is astonishing. The delays in the criminal justice system seems to have an unintended consequence; that witnesses summonsed decide that they have better things to do, so they don't turn up (including the victims themselves). Do you not think that some of these failures, along with others, are more likely to be a reason why the system is not keeping up with what we expect of it?


I think Louise has made some good points and is being unjustly criticised by some.

During the Leadership contest David Cameron talked about tough minimum sentences for serious offences. I think we'd be entitled to ask whether this is going to become Party policy, and if not, why not?


Very well written. Can we not get this article into the Daily Mail?? (i'm being serious not facetious)


Most judges deplore the limits which have been imposed on their sentencing powers. But they are obliged to observe the government-imposed guidelines. If a judge were to ignore them and impose a heavier sentence it would inevitably be appealed.

As a woman, I am of course concerned at the apparent level of failure in pursuing rape complaints. It is, however, a uniquely difficult crime to prove, save in the most extreme circumstances. How could it be otherwise, unless it is to be treated as the only offence in which the accusation alone is enough to secure a conviction? Would any of us wish our husband, father, brother, son, friend or even foe to be sent to prison on anything less than the same standard of evidence which pertains in other matters? And, contrary to what Louise Bagshawe appears to believe, there is no evidence that female criminal judges are any more likely to be biased in favour of the complainant than their male counterparts. And quite right too.

As for the notorious case which other commenters have mentioned, of course the judge's comments, as reported, seem inexcusable. But I would not trust a reporter's account of a summing-up. If the judge has erred, the Court of Appeal, with the benefit of the full transcript, will be able to say so. That's what it is for.


I am staggered by Andrew and Evan who argue that Louise shouldn't criticise the sentence without hearing the full case.

These are rapes of CHILDREN for God's sake - a ten year old, a three year old, a three-month old baby. Whatever the individual details of the case, they can only provide so much mitigation. I cannot conceive of any circumstances where such short sentences would be appropriate.

These men have violently attacked young children and deserve to be sent down for a very long time as punishment, as a deterrent and most of all to protect children


Excellent article. What Louise Bagshawe says here is the type of message that should attract voters to us. "We need to have a bit more pity for the victim and less for the criminal."

Andrew Lilico (0952), would the reason political interference in judicial decision making happens be the institutional liberalism in the justice system? Sentencing and the liberal judiciary needs overhauling somehow.

Evan Price (1023 AM) says judges apply the law. If so, the law needs to be changed to ensure sententences that fit the crime and protect the public! But he is right (0406 PM) about the Government creating loads of new offenses. I'm not in a position to comment on the problems in the system he highlights, but that there is a problem with 'liberal' judges is clear from the type of example Mrs Bagshawe gives us.

The main purpose of the justice system should be to 1) punish the wrong-doer, and 2) protect the public. How do the ridiculously short sentences and early releases Mrs Bagshawe mentions for dangerous violent criminals do that?

As for prison overcrowding, are there too many people in prison who have committed minor or non-violent offences who don't need to be there for public protection, who could be punished in other ways?

Andrew Lilico


The legislature's main proper role in justice matters is the determining of matters of convention, including in the application of justice. This will cover obvious things like which side of the road we drive upon, but also might include precisely when a contract is in force (e.g. with the word? the handshake? the written version? the witnessed version? etc.), the steps necessary to establish identity for a passport, police questioning protocols, safety checks for child carers, and so on. It is then for courts and judges to determine what constitutes justice - did he do it, and if so, what punishment should he receive - subject only to the most general of constraints, such as whether capital and physical punishments are available.

When social norms or the understanding of justice in other ways change abruptly, so that there would be a material conflict between justice-in-precedent and natural justice as currently understood, the legislature might also be helpful in providing a steer as to whether tradition or (potentially-temporary) modernity is to be preferred. But this role should in way be understood to usurp the powers of courts and judges in justice and punishment.

The whole current paraphernalia of legislatively-imposed minimum sentences and automatic sentencing formulae is a vain infringement of the legislature upon the proper business of the judiciary. As Conservatives, we should be seeking to unwind this nonsense, not extending it yet further - especially not by threatening to fire judges on the political ground that we don't like the sentences passed. Who judges are and what they do is absolutely nothing to do with Parliament or politicians. They should stick to their own business.

Evan Price

The most basic reason for being critical about criticism of individual judicial decisions is that it is easy to make and is usually based on inaccurate reporting of cases; in addition, it undermines the rule of law and, especially where the reporting is inaccurate, it does so in a manner that has an impact that is simply not justified. The Judges will not politicise themselves and reply to these unjustified criticisms and so the criticisms become accepted as reasonable, even where they are not.

To deal with judicial indiscretions, there are several options. The first is to appeal. This has results that will either confirm that the criticisms are unjustifed and wrong or the appeal will be allowed. The second would be to complain ... and this is likely to have varied results, although even High Court judges are not immune.

The problem with relying on press reports (as opposed to law reports) is that they are sensationalist and simplistic to the point of inaccuracy. Relatively recently, part of a pleading that I settled was quoted in many of our major national newspapers; the point being made was of minor importance in terms of the case, but the sensational nature of the reporting meant that it was blown out of proportion; although my client lost on this minor point, the case was judged entirely in its favour. If one had gone by the press reports, one would not have remembered that my client won his case ...

In the individual case of the rapist of a baby - seven years sentence; we do not know any of the following facts. What was the original tariff applied by the judge - the starting point for rape of a child under 10 is 10 years ... there will be increases for additional aggravating features (in this case, for example, a breach of trust) and reductions for early guilty pleas (for example). The disgust that we all feel about this offence is relevant, but one of the issues that will affect the sentencing is the harm caused to the victim ... and we known nothing about that in this case. From the press reports reports we know nothing about the conduct of the case of what process was followed by the judge in reaching the decision at 7 years.

Whilst on the face of it I agree that 7 years appears to be very short; the guidelines are there to be followed and I have little doubt that the Judge will not have departed from them (of course if an appeal succeeds, I will eat humble pie and apologise). If you want to see the guidelines for yourself, they are to be found here http://www.sentencing-guidelines.gov.uk/guidelines/council/final.html.

Law School Blog

Recent studies in Canada and the US do indicate a potential bias in the judiciary.

The best way to protect women and children in the court system is to increase the number of women on panels.

See this for details: http://lawiscool.com/2007/07/19/bias-in-the-judiciary/

Evan Price

Sorry to return to this, but I noticed this report today and thought it might be interesting to anyone still interested ...

Sandy Wallace

Louise, I am all for locking up convicted criminals for longer. I am even more in favour of locking up recidivist criminals for much longer. Where you worry me is with your assumption that the fact that "only " 10% of rape allegations result in conviction. It clearly does not occur to you that this may be because many of them are not firmly founded in reality.

No offence is more frequently the subject of false allegation than rape. Equally no serious offence is more under reported than rape. And perhaps uniquely, rape alone is the allegation where both "victim" and "offender" sincerly believe their version of events.

Now given that a rape conviction quite properly ruins a man's reputation and career, and given that convicted rapists have a somewhat unpleasant time in jail, you will just have to accept that as a juror, I will be reluctant to convict a young man whose drunken recollection is of consent simply because a young woman has a drunken recollection that after snogging him, she did indeed clearly indicate that she did not wish to go further.

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