Why David Cameron Is Wrong On Knives

by George_East on May 13, 2014

KnivesOn Sunday Jackie South wrote a post supporting David Cameron’s position on sentencing on knife crime: that a second conviction for an offence involving knives should automatically result in a prison sentence  This post puts the alternative case.

Nick Clegg has publicly opposed the proposal and bragged about how he has used his veto in cabinet to prevent it becoming government policy   The proposal appears to have been made largely to enable a choreographed coalition disagreement in advance of the elections (see also the funding of free schools).  The Lib Dems get to look liberal on criminal justice thereby playing to the middle class voters who have deserted them in droves since 2010; the Tories get to play to the Daily Mail and UKIP voters whose support they crave.

The proposal is that anyone convicted of an offence involving a knife, including the carrying of a bladed item, will be subject to a mandatory sentence of at least 6 months in prison.   Like all proposals for mandatory sentences this is ill thought out logically inconsistent nonsense that will have no practical effect beyond winning a few favourable headlines from the right wing press and making the politicians who passed it feel better about themselves.

The traditional approach in English sentencing law has been for the legislature not to prescribe compulsory sentences.    The legislature has instead provided for maximum sentences for crimes and thereafter to let the Courts determine the actual sentence to be imposed.   Contrary to what Jackie South suggests the only exception so far as imprisonable offences are concerned to this historically has been murder, which attracts an automatic life sentence.    This is, in my view, equally wrongheaded but its origin is understandable as it formed part of the deal struck on the abolition of capital punishment by parliament in 1964.   However, in practice the compulsory sentencing for murder is dramatically mitigated by the fact that the minimum period of actual imprisonment to be served before release on licence remains in judicial hands.  A mercy killing of a terminally ill relative (at their request) is clearly a wholly different thing to, say, the murder of Lee Rigby.

There are two primary reasons why sentencing should be left to the Courts and kept out of the hands of legislators.

Firstly, no two cases and no two offenders are the same.   It is only when all of the circumstances of the crime and the offender have been properly understood and explored that the appropriate sentence can be determined.  Judges will consider both aggravating and mitigating factors in weighing up the sentence to be passed.   The Court will have the benefit of hearing from Defence counsel who can put forward mitigating factors, usually from a psychiatric report which will assist the Court in understanding the likelihood of recidivism and the offender’s criminal record.    These will be, by definition, different factors in every case and these can be carefully weighed in the balance by a judge in determining the length of a custodial sentence or, indeed, whether one should be imposed at all.

The second reason is that it enables a body of case law to evolve over time as a result of the many cases being heard in the Courts which will ensure a principled and consistent approach to sentencing taking into account the kind of factors present in the case.

It is not difficult to think of circumstances in which it would be highly questionable to sentence an offender to a term of imprisonment even for a second (or subsequent) knife offence.  Say for example a woman who had an honest but irrational fear of being attacked when she went out at night and carried with her a small blade for her own reassurance.  She has no other criminal record and no history of violence.   A psychiatric assessment of her shows that there is no serious prospect of her ever using the weapon, it acts like a comfort blanket for her.    She is a single mother, in work and the sole carer for her three children.    On two occasions over a period of 5 years she is searched going into a pub and the blade is found.  The police arrest her and charges are brought.  On both occasions she pleads guilty to carrying the blade.

Under David Cameron’s proposed law, the woman would be sentenced to a term of imprisonment of 6 months.  She will lose her job and probably her home.  Her children may well be taken into care.    What possible purpose would this serve? It is, I suggest, self-evidently absurd.

Now the response to this may well be, yes but your example woman does not represent a typical knife wielding offender.  That is, of course, true.  Most knife crimes (like most crimes in general) are committed by young males.   However, that is precisely the point.  The, er, blunt instrument of a two strikes and you are out policy for knife offences, is that the atypical cases like the woman in my example are caught as well.

The experience of mandatory sentencing in the US has been disastrous as various states have adopted three and two strikes laws for a variety of offences.  In 1980 under Texas’ three strikes law a defendant was sentenced to life sentence for a $230 fraud, because he had previous convictions for two felonies.  In 2003 under California’s three strikes law a defendant was sentenced to 50 years to life for stealing video tapes worth $150.

Those in favour of David Cameron’s proposal might object that they are not proposing such draconian sentences but the much more modest approach of a minimum 6 month sentence.   This though is not an answer, as the logic is the same: that whatever the circumstances of the offence and the offender the judge’s hands are tied and must impose the sentence. There will always be cases where this is inappropriate.

Further, the acceptance of mandatory sentences for a particular kind of crime will inevitably lead to pressure to adopt similar approaches to other crimes and ever harsher approaches where existing mandatory sentences exist.  The pressure on politicians to appear ‘tough’ on offenders is ever present.   A ratchet effect is inevitable once the principle of mandatory sentences is conceded.

Indeed the pressure to bring in such mandatory sentences for other crimes becomes unanswerable once it is conceded for knife crimes.  How can it possibly be right that mandatory sentences exists for two offences of possession of a bladed article, but not for two offences of carrying a fire arm or two offences of committing GBH.    It is logically ridiculous.

Finally, it will almost certainly be wholly ineffective.  There is, as the Youth Justice Board has found, little or no deterrent effect in such sentences.

Of course there will always be cases when it could be said that the crime would not have taken place if the offender was actually in prison, but the logic of this approach is that you should simply bang up every offender for life without parole (or at least all 16-24 year old males whether or not they have committed an offence).

If we take Jackie South’s tragic example and posit instead that the offence was carried out the day after a 6 month sentence had been served for the second knife offence, then the outrage is no less and the argument presumably would be that we should have mandatory sentences for 12 months.  If the day after the 12 months had come to an end  then the argument would be for 2 years, and so on.   2 convictions and 6 months are wholly arbitrary thresholds and by definition ineffective to prevent that offender re-offending other than for the period they happen to be in prison.   If the argument is effectively that of Michael Howard – that prison works because someone in prison cannot commit a crime on someone out of prison – then the logic is that Jackie South and those who think like him should be arguing for life imprisonment for such offences, not a token 6 months.

It also, of course, illustrates why it is pretty much always wrong to legislate based on a particular incident or offence.  It was the murder of Kimber Reynolds and Polly Klass that led to California’s moronic three strikes law in 1994.  Somethingmustbedonery at its very worst.

Sentencing done right is far too nuanced and far too important to be left to populist politicians.  On this occasion, I agree with Nick.

{ 5 comments… read them below or add one }

Jackie_South May 13, 2014 at 9:21 pm

I’m pretty certain that isn’t the logic of my position.

The parallel between your mercy killing example and your example of the woman carrying a knife for protection is that in both cases of course the CPS will make a decision whether prosecuting is in the public interest. I would think currently it is highly unlikely that the woman in your example would be prosecuted. The police proposal government is considering would not change the law, just the sentence.

The logic of your position is that it is still right to prosecute the woman, just not to give her a custodial sentence. My view is that we should expect the CPS to make a sensible decision on whether to prosecute at all in those sort of cases.

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Ray North May 13, 2014 at 10:05 pm

I’m completely in agreement with George on this – the tendency of the legislature to impinge upon the role of the judiciary is dangerously wrong – sentencing is not a case of one size fits all – there are factors that both aggravate and mitigate the offence of being in possession of an offensive weapon/bladed article and both the prosecution and the offender should have the right to bring them dispassionately before a court.
As for your suggestion jackie that the cps wouldn’t prosecute a woman who was found in possession of a knife for self-defence if she had kids – I can tell you categorically that they would (I advise the cps on regular basis about charging) – as ‘potential self-defence’ is not a defence to the charge, whilst being a mother does not remove something from the public interest – if I advised the cps not to prosecute in those circumstances I’d never work again. People and in particular politicians should trust judges and lawyers.

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Mike Killingworth May 14, 2014 at 6:10 am

Ray, you don’t think that people do trust either politicians or lawyers, do you? What you imply, among other things, is that we don’t need juries.

On the question of this wretched woman (possibly, although George does not say so, a “professional” if she’s going into the kind of pub where hidden weapons are routinely worn), well: hard cases make bad law whoever does the making. And the polling evidence is that “people” (i.e. males who left school as soon as they could) are fed up with “liberalism” of all kinds, want to lash out, and don’t very much care who they hurt.

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Ray North May 14, 2014 at 9:47 am

Mike I’m not sure why you think I’m undermining the jury system – you won’t find a more robust champion of the jury system than me.
In any event the issue is not about juries but sentencing and the need for judicial discretion in sentencing. My strong view is that people should trust parliament to impose the framework but allow judges enough room to impose heavy sentences when it’s called for and leniency when that is the correct course of action.
Ideally judges will be assisted by advocates the best of whom will ensure that judges are assisted in pinpointing the relevant aggravating and mitigating factors.
Jackie should be more worried about the diminishing quality of crown court advocates as the cuts to legal aid cause more of the good ones to look for work elsewhere than unnecessarily tying the hands of the criminal courts.

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Eddie Kaye May 14, 2014 at 6:37 am

The whole argument for once again seems to rest wit deterrent. What is the bigger deterrent? An 18 year old somewhere not carrying a knife because of a potential short prison sentence, or carrying one because other people do who may take his life?

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