Law Sunday – 14th October 2018

October 14, 2018

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Preached by Lady Justice Hallett at Law Sunday Mattins on Sunday 14 October 2018, the 20th after Trinity.

It is a long time since, as a Hampshire school girl, I took exchange students around this Cathedral, telling them in my best French of the exploits of Diver Bill (who saved the Cathedral from collapse). In preparing this address, the prospect of returning to this glorious building reminded me of my youth and of my religious education.   One aspect of my RE has stuck: the importance of the role of forgiveness in most major faiths.

Having now spent over 40 years in the Criminal Justice system as a prosecutor, defender, trial judge and now appellate judge I decided to address the role of forgiveness, if any, in the Criminal Justice system.

Typical of a lawyer, my answer to the question depends on how you define forgiveness. For present purposes I use the word forgiveness to mean release from guilt or punishment.

First who can forgive and in what circumstances?

Some might say that only God can forgive a sin and then only when the offender expresses genuine remorse. In which case this would be a short address. I shall deal with forgiveness by the victim of a crime and or by the State and with expressions of remorse as experienced by judges and magistrates.

Sentencers frequently hear protestations of remorse on the part of offenders, but many suspect the remorse may be triggered by the offender’s appreciation of the consequences of their actions on themselves, rather than by their appreciation of the consequences of their actions on the victim. If remorse is necessary for the forgiveness of sins in the criminal justice system, one could argue the first problem is assessing the genuineness of the remorse.

The second problem is that we have done our best to promote consistency across the country and remove any possibility of post code lottery in the Justice system. In doing so it could be said we have reduced the scope for subjective concepts such as forgiveness and remorse.

I shall consider two principal stages of the system– the decision to prosecute and the determination of sentence.

The decision to prosecute

On one view there is no role for forgiveness in the decision to prosecute, however great the remorse and mitigating the circumstances. The State brings the majority of prosecutions and the State owes a duty to its citizens to protect them and to investigate and to prosecute crimes fully and fairly. The State in choosing whom to charge must act impartially and consistently. There is a tension between maintaining that impartiality and consistency and selecting an individual offender for forgiveness of their sins. The latter must inevitably involve a degree of subjectivity.

Guidance for prosecutors is found in the Code for Crown Prosecutors. It provides two tests in deciding whether to prosecute: 1. Is there enough evidence? 2. Is it in the public interest? I do not have the figures, but I suspect the understandable default setting is that where there is sufficient evidence, the decision is to charge and leave it to the sentencer to reflect mitigating circumstances.

However, the application of the public interest test may on occasion mean that an offender escapes prosecution, for example if he/she is warned, cautioned or subject to some other diversionary scheme.

Excellent schemes exist designed to deter offenders from a criminal life style and to address their problems.  Research suggests that diversionary and restorative justice schemes do work to reduce recidivism and protect the public, but, are they based on forgiveness of sins or are they based on improving outcomes for society and for the offender ie preventing re-offending? Furthermore, can they work if the offender is not brought in some way to account for his or her actions and made to understand the consequences of those actions on their victims and the community? Holding to account does not have to involve a prosecution.

In Restorative Justice schemes, the victim is given the chance to meet or communicate with their offender and hold them to account. It can make it easier for the victim to forgive the offender and bring home the impact of offending on the victim to the offender thereby reducing the prospect of further offending.

But, first, the number of victims who can bring themselves to forgive are a minority and second, even if the victim can forgive, participation in a restorative justice scheme may not prevent a prosecution.

Even if a victim wishes to see an offender counselled and or treated, not prosecuted and punished, their wishes in this respect do not usually play a part in the decision to prosecute or in the sentence. As much as the Criminal Justice system now recognises the role of the victim at the heart of the process, it is the harm caused to them upon which we usually focus, not their ability to forgive. If they do have benign views towards an offender they cannot prevent the State fulfilling its duty. The State must look to the future and other possible victims, it must do its best to prevent crime and, sometimes, the State must protect the victim against themselves.

Sentencing

If an offender is prosecuted and convicted, the judge or magistrate must ignore the words of Luke (c6 v37) and hope they were not directed at us: “Do not judge and you will not be judged. Do not condemn and you will not be condemned. Forgive and you will be forgiven.” Judges and magistrates must judge because it is their job to judge and on occasions to condemn. They too must act impartially and consistently. It is not for them to forgive but that does not mean they have no discretion or that they must ignore genuine remorse and rehabilitation.

The principles of sentencing the sentencer must apply are set out in section 142 of the Criminal Justice Act 2003: the punishment of offenders, the reduction of crime, the reform and rehabilitation of offenders, the protection of the public and the making of reparation by offenders to their victims.

Those principles are reflected in the Sentencing Council guidelines. The guidelines provide sentencers with starting points for sentences and sentence ranges. They are based on two pillars: the harm caused and the culpability of the offender. The sentencer must first categorise the offence according to those two pillars and then go to the starting points and the sentencing ranges provided. The sentence may be aggravated by particular factors but also mitigated by remorse, pleas of guilty and attempts to address offending behaviour.

If therefore one views remorse, reparation to the victim and rehabilitation as aspects of forgiveness, then forgiveness may be in play here although one could argue that reform, reparation and rehabilitation are again more about improving outcomes- outcomes for the victim, for the offender and for society and preventing re-offending.

In any event, some commentators argue that the scope for a sentencer to reflect mitigation such as remorse and rehabilitation has been severely curtailed by a combination of the following:

  1. sentencing guidelines,
  2. the starting points for the minimum terms of life sentences for murder set by Parliament and their knock on effect on sentences for other crimes,
  • huge media pressure to lock up offenders and
  1. the power of the Court of Appeal Criminal Division to increase an unduly lenient sentence.

I accept that custodial sentences are undoubtedly getting longer, in many cases rightly so, and some may feel they are more punitive. But I do not accept there is no scope for mercy and discretion. The sentencer may move a sentence upwards in the range provided in the sentencing guideline to reflect the aggravating factors and downwards to reflect the mitigating factors. It is only where the Court of Appeal feels that these factors have not fully been taken into account that it may increase an unduly lenient sentence or decrease an excessive one.

However, if a sentencer is looking for a less punitive punishment than custody, they need a viable alternative. Sentencers will be reluctant to impose a community penalty if they have little confidence in those available to them. The sentencer can only pass an effective community penalty if one is available, if it is properly policed and breaches dealt with effectively. This requires resources. Just as a hard pressed prison service needs resources to provide the appropriate courses and treatment for offenders if they are sent to custody.

Finally, I should mention the Rehabilitation of Offenders Act. Is that about forgiveness? It is certainly about the rehabilitation of offenders and encouraging people to get on with their lives despite a relatively minor offence committed years ago., However, it applies in limited circumstances and in any event is probably more about the prevention of future offending than actual forgiveness.

So, the answer to the question I posed in the beginning is that forgiveness, as I defined it, may play some small part in the Criminal Justice system, but police officers, prosecutors, magistrates and judges are bound by rules and principles they must apply. There is far less scope today for the exercise of subjectivity and discretion. Consistency of approach is genuinely important.

I hope I have persuaded you there is nonetheless scope for humanity and on occasion for mercy and ample scope for diversionary and rehabilitative schemes. However, this is dependent on the State’s ensuring we operate a properly resourced and fair criminal justice system.

The Justice system lies at the heart of a healthy democracy and the public, the media, Parliament, and the Executive must recognise that fact. Hence the importance of services such as this. Legal services are not just an occasion for the flaunting of fancy robes, but as an occasion when the County recognises the role of the Justice system within its borders and prays for its continued well-being and the well-being of all those who work in it and all those affected by it.