If there was any profession whose members you would expect to understand the principle that actions have consequences, it would be the legal profession – and especially the judiciary. It is their job, after all, to dole out life-changing consequences. When someone has broken the law, the judge hands down the sentence.
Yet in recent years, it seems increasingly evident that the judges, or at least a section thereof, have started to lose sight of that principle, and of their proper function in a democratic country.
Consider this story: four Just Stop Oil protesters up in court on charges of criminal damage. One had already admitted to the charge, the other three were found guilty at trial in January. Yet the judge let them walk free with suspended sentences, on the grounds that their actions were ‘born out of concern and anxiety for climate change’.
The mind boggles, or it ought to. Yes, all four have, officially, been punished, but with little more than a slap on the wrist: suspended prison sentences of between 15-18 months, plus a requirement on each of them to complete 100 hours of unpaid community service and to pay a £500 fine. The damage was real enough: the taxpayer is on the hook for an estimated £104,000 bill after these four vandalised the Treasury. And it was criminal – the justice system had so determined, in three out of four cases after the time and expense of a full trial.
Yet the judge then spared those convicted of any serious consequences, and gave the impression that he did so because he sympathised with their political motivations.
Crucially, the sentence neither physically prevents the defendants from offending again nor, in light of the small fine, sets a deterring example. While the individuals involved might be wary of having to serve their sentences if they offend again, other people with clean records will note the implied low risk of a first offence – even one that inflicts a six-figure bill on the taxpayer.
Such appearances are very damaging to public confidence in our justice system, even if the reality is more complicated. While this may seem a surprisingly light punishment, illegal but non-violent activism does not usually merit a custodial sentence. Nor is it true more generally that the judiciary is treating climate activists, specifically, with kid gloves (in fact, the recent trend is towards exceptionally severe sentences for Just Stop Oil activists, with the most serious cases receiving long custodial terms).
However, the problem is that a cynical narrative is gaining ground online in which the pattern of leniency does indeed run only one way. It feeds on reports like this, with images of climate activists walking free contrasted to the long sentences handed down for social media posts during last year’s riots. (It also blurs in the popular imagination with cases, not the fault of the judiciary, where a jury lets activists off.)
It is not sustainable in a healthy parliamentary democracy to have an emerging belief that street tactics are effective for one side, but dangerous for another, via the selective enforcement of the relevant law – a misconception in many cases, perhaps, but one driven in part by judicial conduct in other spheres, such as the aftermath of last year’s riots.
Yet the judiciary seems not to have realised this; even as they continually expand their role in the governance of Britain, the judges continue to demand the sort of deference (and lack of scrutiny) that attended to their old function.
Back in February, Baroness Carr, the Lady Chief Justice of England and Wales and president of the Sentencing Council), denounced as ‘unacceptable’ the fact that both Keir Starmer and Kemi Badenoch had the temerity, at PMQs, to criticise a recent ruling by the immigration tribunal. Lord Davis, her colleague on the Council, responded to Shabana Mahmood’s initial request that it scrap its two-tier justice plans with a deeply disingenuous and passive-aggressive public letter, the underlying theme of which was ‘How dare you?!’. Last week Lord Hermer, Starmer’s hand-picked Attorney General, branded criticism of judges a threat to ‘judicial independence’ and – of course – ‘the rule of law’.
I set out in a previous piece the logical and moral reasons why Carr is shouting into the wind:
Judges are people, not machines; many of them have strong views on many subjects, and these at least risk shaping the judgments even of the most conscientious. Some famous judges, such as the late Lord Denning, are renowned precisely for their role in driving constitutional change from the bench.
But this is not just a debate on high constitutional principle, confined to worthy journals and genteel seminars. It is increasingly about online rumour, and the way it can seize on ill-considered words by a judge and twist them to fit a corrosive narrative. Indeed, perhaps the judiciary’s best hope is not to resist transparency, but to open the door much further.
Baroness Carr is certainly going to have to come to terms with a world in which she and her colleagues are scrutinised as never before, however she feels about it. But that makes the need for more actual reform more urgent – and if the Sentencing Council’s eleventh-hour capitulation on pre-sentencing reports is anything to go by, the judiciary is going to have to be dragged into the new era.
Click here to subscribe to our daily briefing – the best pieces from CapX and across the web.
CapX depends on the generosity of its readers. If you value what we do, please consider making a donation.
