Justice Minister: “grandstanding and chest beating seen in the Chamber” on mandatory sentences call

As the BBC reports, yesterday in the Northern Ireland Assembly, by 44 votes to 41, MLAs called on the NI Justice Minister, Alliance Party leader David Ford, to “introduce legislation to impose mandatory minimum prison sentences for people who are found guilty of violent crimes against older or vulnerable people”.

The motion was agreed despite opposition from the NI Justice Minister and a number of MLAs with legal backgrounds.  The NI Justice Minister also pointed out that, “officials from my Department are in discussions with the Justice Committee on draft proposals for ways in which transparency, consistency and an understanding of sentencing practice might be delivered in a manner that helps to promote public confidence.”

Here’s an extract from the NI Justice Minister’s speech during the debate

I consider it important that the discretion of the judiciary is maintained in such cases. Mandatory minimum sentences of imprisonment allow no room for discretion, a point that was recognised by a number of Members who spoke. I think that that was everyone on this side of the House and Mr Hussey, although, for some bizarre reason, at the end of his speech, he said that he intended to support a motion that he had largely spoken against.

Mandatory sentences make no allowance for the exceptional case, and there is always the possibility of such cases. I confess that I was thinking of potential examples. However, yesterday, Jim Allister told me of the example of the paedophile pensioner, which he gave the House this afternoon. It is probably fair to say that, if Jim Allister were described as, “A ‘Guardian’-reading, sandal-wearing liberal”, he would feel a little discomfited. Such a description would not worry me but would worry him. Yet, Mr Allister, speaking from his clear, practical experience in the law courts put his finger on a precise example of why mandatory sentences are wrong. To suggest that the father in that case should be subjected to the same minimum sentence as a thug who assaults and abuses old people is absolutely ridiculous and was recognised as such by the silence in which he was heard before DUP Members desperately tried to think of something to heckle him with. We have the clear example cited, and we have heard others, including Mr McCartney, cite research from other jurisdictions that shows that mandatory minimum sentences can have unintended consequences. Indeed, Mr Allister’s example would have been exact proof of that. That is why I and, I believe, the majority of the House have supported the concept of judicial discretion.

Members referred to sentencing guidelines. Of course, sentencing guidelines were raised as an issue in the Hillsborough Castle talks last year. At the time, some of us considered that a fairly formal mechanism was needed. However, there has been acknowledgement from different sides of the House today of the significant work being done by the Lord Chief Justice in developing informal sentencing guidelines and of his willingness to engage with laypeople involved in that process. Sir Declan Morgan’s public consultation on the priorities for sentencing guidelines shows that he is in touch with public opinion. I welcome and support the work that he is doing. Some of the detailed issues around, for example, lay involvement, must be worked through in detail. However, it is absolutely clear that work is being done by the judiciary that complements the work being done by the Department, and Sir Declan Morgan’s work is to be welcomed as a positive step forward.

The key issue for me is that we reassure vulnerable citizens that we promote safer communities and see that good work is done by police officers on the ground to ensure that criminals are caught. The knowledge that people will be caught and given an appropriate sentence by the judiciary is the deterrent — not the grandstanding and chest beating seen in the Chamber this afternoon — and it leads to judicial sentences that are appropriate to the facts of the case. In response to Mr McIlveen, Mr Allister highlighted the issue of an appeal against inadequate sentences, which is being looked at as part of the Attorney General’s work.

I am committed, as the Programme for Government demonstrates, to continuing to work to ensure that crimes against older and vulnerable people are minimised, that offenders convicted of such crimes continue to be sentenced appropriately and that older and vulnerable people are able to live their life free from the fear of crime. The approach of the Programme for Government is to explore the options and determine the need for appropriate legislation, with the kind of flexibility that Peter Weir talked about, as opposed to the inflexible demand for mandatory sentences that he and his party colleagues have been talking about. [added emphasis]

But, despite “the grandstanding and chest beating seen in the Chamber”, the resolution itself is not binding on the Minister…

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  • Roy Walsh

    This smacks of a DUP need to be seen to be tough on crime but also raises the issue, why is it necessary? There can be no doubt that criminals are seen as being too well endowed with rights while their victims appear to have none.
    My own experience, over two decades in the justice sector confirms this, I can too see the problems with mandatory sentencing outlined by Mr. Allister but this is by far and away the minority of cases and if one is equal before the law then why not apply equivalent sentencing for offences?
    In the alternative we might better look to the action of the US in 1994 which introduced the ‘three strikes & you’re out’ rule which studies show, for the violent criminals at whom it is aimed, works imposing a mandatory life sentence, permitting the criminal learn from their previous behaviour in good time.

  • http://fitzjameshorselooksattheworld.wordpress.com/ fitzjameshorse1745

    Opposed by a number of MLAs with a legal background?

    Clearly Alex Attwood, Alban Magennis and Jim Allister fit that bill.But if you take Jim Allister as being cancelled out so to speak by Peter Weir, who has a legal background…….then we are left with nothing more or less than the traditional splits.
    whether defined as Left/Right Unionist/non Unionist Conservative/Liberal

    DUP & UUP voted one way.
    SF, SDLP, Alliance, Green……and Jim Allister voted another way.

  • vanhelsing

    I just find it entertaining that we have a voting group [as fitz has pointed out] with SF, SDLP, Alliance, Green and TUV:)

    Perhaps some more salient points also.

    Although attacks on the elderly and vunerable are rare that is a relative thing. There were 502 violent crimes and 1081 domestic burglaries recorded against the elderly in the year 2008-09. However the impact of these crimes are more pronounced than some other groups because of the greater emotional impact they cause.

    We already have mandatory sentencing for drink driving for example so does the Justice Minister [who is clearly not keen on these] wish to repeal those?

    Personally I think that violent attacks against the elderly are henious crimes and that this motion [if it were adopted into legislation] would act as a deterrent.

    If some of those MLAs had their elderly parents attacked – they’d probably feel different. I remain surprised/shocked that so many MLAs voted against it.

  • Comrade Stalin

    I am not sure I completely agree with the justice minister on this one that this is solely a matter for the courts. At the same time, if it were me I would have worded the motion differently.

    (it is worth adding that the motion is utterly pointless and irrelevant. Nothing will change as a result of this motion being passed, it creates no requirement on the minister or anyone else to create legislation. The Assembly could quite easily have created legislation in its own right, the real question for the DUP here is why they couldn’t simply make a private member’s bill to put this change through ?)

    I don’t believe that mandatory sentences are any more of a deterrent than regular sentences – as Jim Allister pointed out, theoretically someone committing robbery runs the risk of getting life imprisonment, yet people are running that risk on a daily basis. On the other hand, creating a specific offence of assaulting an aged or infirm person, as distinct from a regular offence of assault, might help to send out the signal that this is a crime which is taken particularly seriously. There is precedent for this as there are similar specific offences eg. for assaulting a police officer; this is a law which exists to emphasize the fact that assaulting an officer is a crime that needs to be specifically highlighted.

    Loathe as I am to say it, the star of the debate here was Jim Allister who made an informative and reasoned contribution to it. It is well worth reading his contribution in the debate in full. He addressed all the arguments very well, including this one :

    We already have mandatory sentencing for drink driving for example so does the Justice Minister [who is clearly not keen on these] wish to repeal those?

    Allister addressed this point by suggesting that there is no excuse that would persuade a judge that drink driving was necessary. On the other hand, he used the hypothetical example of a pensioner who was a paedophile being assaulted by the angry father of one of his victims. The father still committed a crime but ordinarily the court would have to take the circumstances into account, which they would not be able to do if there was a mandatory sentence in place.

  • Comrade Stalin

    fitz:

    you take Jim Allister as being cancelled out so to speak by Peter Weir, who has a legal background…….then we are left with nothing more or less than the traditional splits.

    Hardly a fair comparison. Allister is his own man, Peter Weir simply does whatever he is told by his chief whip – they wouldn’t even let him stand for election in N Down last year, note he didn’t raise so much as a peep. Even then, if you read his contribution to the debate, he talked about the need for flexibility and he focused on the need for a custodial sentence as being the priority rather than the length of that sentence – I’d say his position was rather closer to that of the “no” side than his own party.

    DUP & UUP voted one way.
    SF, SDLP, Alliance, Green……and Jim Allister voted another way.

    I wouldn’t put this down to the traditional sectarian split. The UUP voted with the DUP because they were afraid of the DUP pointing and laughing about them being weak on crime. You will seldom see the UUP parting ways with the DUP on policy except when it comes to debates relating to the way power is being divvied up in the Executive.

  • vanhelsing

    CS,

    “Peter Weir simply does whatever he is told by his chief whip – they wouldn’t even let him stand for election in N Down last year, note he didn’t raise so much as a peep”

    As far as I am aware Peter Weir is the Chief Whip:) – although I stand to be corrected…

  • Roy Walsh

    While I would be keen to support harsher sentencing for recidivists, I beg to differ with Deputy Givan in his proposal, notably that the Assembly potentially the Courts/DPP as public bodies may have problems in respect of their duties subsequent to Section 75 of the Devolution Act 1998.
    http://www.legislation.gov.uk/ukpga/1998/47/section/75
    How might we apply one sentencing regime to people convicted of offences they commit against others of a set age while not applying similar harshness to those convicted of similar offences against slightly younger persons?
    I might be wrong but I thought Sec. 75 provisions took precedence over other legislation.

  • http://fitzjameshorselooksattheworld.wordpress.com/ fitzjameshorse1745

    I think you may have missed my point or alternatively I did not make it clear.
    The point was made in the original post that the motion was opposed by “a number” of MLAs with a legal background.
    The implication is that those with legal backgrounds came down on one side of the argument more than on the other. This is of course true…..although I dont precisely know the biography of every MLA.
    There might well be more than the four I named. Probably is.
    But it doesnt follow that the three who voted one way are more “right” than the one who voted the other way. As it is, you and I happen to agree that they are more right.

    But the key thing is that this was more about attitudes of political parties than it was about appreciation of the law itself. The “gut feeling” so to speak of every SDLP, Green, Alliance and SF MLA was to vote in a certain way. And the “gut feeling” of every DUP/UUP person to vote the other way.
    I dont think anyone was really swayed by “legal” argument one way or the other…….which actually (as you point out) makes Allisters contribution and vote more remarkable.

  • Rory Carr

    Those young thugs who may have been concerned at the possibility of mandatory sentencing being introduced for assaults on pensioners must have been heartened by the Chancellor’s recent decision to bring forward the extension of the retirement age to 67 by another ten years so giving them a clear field on bashing up 65 and 66 year-olds for another decade.

    “Soft on crime, soft on the causes of crime,” as Ken Clarke really, really did not say. (Honest !)

  • Roy Walsh

    Here might be why a minimum sentence is preferable to Judicial discretion in cases of attacks on older people though the age ought not to matter.
    http://www.bbc.co.uk/news/uk-england-tyne-15166179

  • Rory Carr

    If you will forgive me, Roy, but I could not help but think that the example of the case you just cited was rather like using Atilla the Hun as a reason for introducing passport control.

  • Lionel Hutz

    It is incredible that such a motion could be passed by the assembly – meaningless or not.

    I just cannot see the rationale for a mandatory sentence or even a seperate crime. Does the offender have to know that the victim is elderly?

    Suppose we take aggravated burglary, which appears to be the major example a crime where the elderly are apparently targetted. Is it on the basis that an elderly persons in the house? What if a burglary happens in a house and the mother in law happens to be staying over. Is it on the basis that the house is owned by an elderly person? What if the house is leased and what if the crime is planned for the elderly person being away.

    Take assault: are we to introduce a mandatory custodial sentence for assault of the elderly? If so, does this mean that an assault not causing an injury is more a a crime than lcausing actual bodily harm to 30 year old. This flies in the face of the core principle of our sentencing policy – that the sentence is commensurate with the severity of the crime. Mandatory sentences distort that.

    We do not create new crimes on the basis of who the victim is. Even the example of the policeman is not accurate. The key distinguishing factor with the police officer is that the crime is against the execution of the duty of police officer. An assault against an off duty police officer is just an assault as if it was anyone else.

  • Roy Walsh

    I hardly think so Rory, it is instead just a good example of short sentences handed to a man who should have been given life, we see daily people on non-violent crimes been handed harsher sentences, this (and I use this term loosely) man got just over three years for rape, of his grandmother, many of us with experience of working in the field of justice feel there ought to be a naught on the end of this which will protect the victims and society better.

  • Comrade Stalin

    Lionel:

    I just cannot see the rationale for a mandatory sentence or even a seperate crime.

    So by that token do you think mandatory sentences for drink driving is wrong; do you think that the offence of assaulting a police officer should not be on the books ?

    What if a burglary happens in a house and the mother in law happens to be staying over. Is it on the basis that the house is owned by an elderly person? What if the house is leased and what if the crime is planned for the elderly person being away.

    Wouldn’t it be for the judge to consider the prosecution case that this was a violent crime ?

    What if the house is leased and what if the crime is planned for the elderly person being away.

    If the elderly person is not present, then how could a prosecution be taken for a “violent crime against the elderly” ?

    The key distinguishing factor with the police officer is that the crime is against the execution of the duty of police officer.

    I don’t know exactly what the statute is but I have always understood it to be “assaulting a police officer”. I had figured that if I ran up to a uniformed officer and hit him with a bat or something that I’d be prosecuted under this provision, rather than simply assault. Surely the reason for this specific crime is to do with the fact that attacking the police is an attack on the authority of the state.

  • Comrade Stalin

    Ah, I stand corrected. Police (Northern Ireland) Act 1998 section 66 :

    “Any person who assaults, resists, obstructs or impedes a constable in the execution of his duty, or a person assisting a constable in the execution of his duty, shall be guilty of an offence.”