Tuesday, 12 March 2013

Cheating the System and Breaking the Law

Twenty years ago I was involved in  a series of international sentencing seminars. Judges from across Europe would present real life but anonymised cases from their jurisdictions which would then be analysed and discussed to establish what penalty would be likely in other countries. The method was intended to get away from a dry analysis of penal codes and case law to understand what really happens in courts’ practice. The aim was to try to expose what we thought were the harsh practices of the British judiciary compared to their European counterparts. For the most part our judges were indeed more ready to send ordinary criminals to prison and for longer periods. I remember one highly enlightened and philosophical German judge, Hartmut Horstkotte , who was reluctant to send almost any case to jail, constantly probing the purpose of imprisonment. When prison was unavoidable he always argued for the shortest possible term, ideally suspended.

The picture changed when our Dutch hosts presented the case of wholesale importation of cannabis to the Netherlands. A businessman had, over many years,  paid off police and customs officials to allow him to supply the “Coffee Shops” where retail sale for personal consumption was not prosecuted. From memory, the English judges proposed a sentence of 5 years or so and were, like me, astounded when the normally lenient Horstkotte announced his opinion that the right sentence in this case was 20 years. In his view, corrupting the system was a far more serious matter than an individual act of delinquency. He reasoned that acts which endanger the fair operation of the rule of law are both deserving of retributive and deterrent punishment.

I wonder what he would have made of the Chris Huhne and Vicky Pryce  case?
I think he would have had sympathy with the judge’s view that the case goes to the heart of the criminal justice system whose operation somewhat paradoxically depends in part on those who have broken the law acting honestly. When people are found not to have done so, courts sentencing them have little room for manoeuvre.  

The seminars revealed that that the going rate for punishing offences varies widely across Europe. As one participant observed, in their discussions, judges were using different currencies.  In a report last year for  the Criminal Justice Alliance I found this is still the case. 

The real message of the case is the need for a downward revaluation of punishment levels across the board. If public services  are reducing spend by 20% over five years so too should our sentence lengths. Were this to happen , Huhne and Pryce might have satisfactorily been punished with a large fine, a period of house arrest monitored by a tag and some meaningful community payback.  I'd like to think that this is what Horstkotte would have imposed.