Judges must explain sentencing decisions
EARLIER this week, the Sentencing Commission tabled proposals aimed at ensuring prison sentences passed by Scottish courts meant what they said.
So why has that confidence become eroded? Well, if the committee is to be believed, a large part of the blame lies with the media. If the media are the eyes and ears of the public and they don't understand how sentencing works, then the information relayed to the public must be wrong. But to say the media don't understand the system is to oversimplify matters. Sentencing is a highly emotive topic. With the exception of Tony Martin, I can think of no occasion when the media has campaigned to reduced a sentence.
It's only when judges are seen to be light-handed they face a media barrage. It's easy news for the papers. It is not difficult to get a victim or a relative to say the sentence is a disgrace. Their position can hardly be dispassionate. The red tops called for red jerseys' resignation. The judges' previous sentencing records are scrutinised. Case in point was the monstering Lord Reed got following a sentence passed down on a child rapist. The Sun even had a phone poll asking whether he should be sacked. Following the media outcry, the Lord Advocate appealed against the sentence. In increasing the sentence, Lord Cullen in the Court of Appeal came to Lord Reed's defence. He attacked the press, arguing that if judges were to be swayed on such issues by a desire for the decisions to meet with popular approval then that would put at hazard the integrity and independent judgment which the public expect of judges. But perhaps if his colleague had just explained the reasons for the sentence, the fallout would not have been so bad.
You see there is an issue here not just of understanding but also of accountability. Why don't judges just explain why they have reached a certain decision? It's not rocket science. They have been doing it in England for years, where judges are advised to take special steps to ensure the reasons for what they do are understood. They are told to issue statements summarising why they have imposed a particular sentence and pointing out any statutory restrictions that may have prevented them from imposing a higher one.
Thankfully, the report recommends such an approach. Anything that makes the system easier to understand is to be applauded. But if the commission thinks a greater understanding of the system will stop the media making judges accountable for their decisions, then that is to misunderstand the role of the media. After all, it becomes easy for the media to raise issues of accountability when only less than 10 per cent of the Judiciary bother to respond to the consultation process.
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