From David Maughan Brown in York: Populism and Justice

August 22nd

Populism is a political trait inextricably woven into democracy, whose essential meaning, according to the Concise Oxford, simply involves having concern for the views of ‘ordinary people’.  Which, of course, begs the question of whom Oxford regards as ‘ordinary people.’  Chambers, usually to be relied on for more colourful nuance, defines a populist as a ‘supporter, wooer or student of the common people.’  In the era of Trump and Johnson, ‘populism’ tends to be used mainly in the implicitly pejorative sense conveyed by Chambers’ ‘wooer’, and refers to the process of winning votes by pandering to the worst prejudices of as many people as possible who already entertain, or can be imbued with, those prejudices.   Countering that kind of populism is always going to be an occupational hazard for any decent person entering politics.    But populism should, surely, play no role whatever in a judicial system, and I get increasingly concerned that that is exactly what is happening. 

One doesn’t need to be a practising Christian to endorse the quaintly archaic wording  of the 1662 prayer for the Church in the Book of Common Prayer, ‘grant … to all that are put in authority … that they may truly and indifferently minister justice, to the punishment of wickedness and vice….’ ‘True’ justice must, surely, be ‘indifferent’:  it should be based on a complex mix of precedent, compassion, retribution, and recognition of the need to protect society.  The passing of sentence should be the business of independent and experienced experts – but populism, of course, doesn’t like experts.   Justice should not be based on the emotionalism cultivated by the tabloid press and by the encouragement of victim statements, however heart-rending the latter often are.   If a 65 year-old man is beaten to death by a couple of teenage thugs, he may well have a wife, children and grandchildren who can all tell a court how devastated they are by his death, but he is obviously no more dead, and the crime is no worse, than if he happened to be homeless and to have no family or friends to be devastated by his death.  Justice should be ministered ‘indifferently.’

Two recent controversies over sentencing come to mind.  The first is over the sentences handed down to the three teenagers who were responsible for the killing of PC Andrew Harper, who was caught up in a tow-rope and dragged to his death behind a car when he intervened in the theft of a quad bike.  The driver of the car was sentenced to 16 years’ imprisonment and his two eighteen-year old passengers to thirteen years each.   Harper had only been married for four weeks, and his widow, Lissie, who is very personable, very articulate and clearly heart-broken, believes that the sentences fall into the category of being ‘unduly lenient’, and is campaigning for a new law to make life sentences mandatory for people who kill police officers and other emergency workers.  Suella Braverman, our worthy Attorney General, has entirely predictably decided to refer the sentences to the Court of Appeal.  She it was who destroyed any iota of credibility she might have had left as Attorney General after agreeing to join Johnson’s cabinet of all the talentless by fully endorsing Dominic Cummings’ jaunt to Durham at the height of lockdown as ‘responsible and legal’, prior to the Durham police having had time to consider whether or not it was, in fact, legal.   The way PC Harper died was, as Bravermann said, ‘horrific’; his death was indeed ‘shocking’.    But 13 years in prison for two teenagers, who happened to be passengers in a car that drove off with a man inadvertently caught in a tow-rope dragging behind it, is ‘unduly lenient’?  What does it say about a prison system that can’t reform a teenager in two or three years, never mind 13?  Mandatory sentences were a favourite recourse of the fascistic apartheid government in South Africa: their object is to deny the judges the right to use their discretion, to overrule and discredit expertise, to toss red meat to the yapping right-wing Law and Order brigade.  Lissie Harper does not come across as a member of that brigade, and one can only feel desperately sorry for her, but her tragedy has taken place in a media climate that fosters contempt for experts and militates against rational judgement.

The other recent sentence worth commenting on is the minimum 55-year sentence handed down by the judge in the Manchester Arena bombing case, which, the court was told, would have been a ‘whole life’ sentence but for the legal preclusion of that sentence on the grounds that Hashem Abedi was under age at the time of the offence. There is no question that Mr Justice Baker was right in saying that: ‘The stark reality is that these were atrocious crimes: large in their scale, deadly in their intent and appalling in their consequences.’  But one wonders what the choice of 55 years was about, if not to pre-empt an outcry that anything less would be ‘unduly lenient’ in the face of the harrowing victim statements read out in court by survivors?  What is the point of sentencing the English State (which seems likely to be all that is left of the Union by then) to cover the cost of Abedi’s board and lodging for a minimum of the next 55 years?  Do we no longer believe in the possibility of reform and redemption?  Not even over, for the sake of example, 40 years rather than the somehow magic 55 years?  I suppose the one thing we should be grateful for, in the context of a justice system that has to try to keep itself afloat in a sea of populism, is that even David Cameron had the good sense not to call a referendum on the restoration of the death penalty.  But don’t hold your breath on that score as long as Johnson is in nominal charge.

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