Are Our Parliamentary Drafstsmen Up To It?

In its anxiety to empty our prisons the government has enacted two incompatible regimes for early release and developed an unlawful non-statutory policy in a botched attempt to reconcile them. That seems to be the gist of Mr Justice Mitting's judgment of 31st January, 2008 and uploaded today on BAILII in the grandly entited case of:

THE QUEEN ON THE APPLICATION OF REBECCA NOONE
Claimant
v
(1) GOVERNOR OF HMP DRAKE HALL
(2) SECRETARY OF STATE FOR JUSTICE
Defendants

I will not tire you with further details mainly because that might prove difficult or "impossible" in anything under the length of Mr Justice Mitting's full judgment. As he said:

"Section 174(1)(b)(i) of the Criminal Justice Act 2003 requires a court passing sentence to explain to an offender in ordinary language the effect of the sentence. This requirement has been in place since 1991. These proceedings show that, in relation to perfectly ordinary consecutive sentences imposed since the coming into force of much of the Criminal Justice Act 2003, that task is impossible. Indeed, so impossible is it that it has taken from 12 noon until 12 minutes to 5, with a slightly lengthier short adjournment than usual for reading purposes, to explain the relevant statutory provisions to me, a professional judge."

I simply supply a link to this judgment and some choice extracts:

"The position at which I have arrived and which I will explain in detail in a moment is one of which I despair. It is simply unacceptable in a society governed by the rule of law for it to be well nigh impossible to discern from statutory provisions what a sentence means in practice. That is the effect here."

AND:

"Mr Patel advanced the submissions which he canvassed before Dobbs J in R(Steven Highton) v The Governor of HMYOI Lancaster Farms and the Secretary of State for the Home Department [2007] EWHC 1085 Admin. Mr Weatherby, who appears for the claimant, drafted grounds of appeal in that case. Both are therefore thoroughly familiar with the complexities of the legislation and the difficulties to which it gives rise. Both have made helpful and, insofar as it is possible with legislation of this obscurity, clear, submissions about its effect."

AND:

"Unattractive though the answer which she [Dobbs J] gave is, and hard though I have struggled to avoid it, in my respectful view her reasoning and conclusion were right. I need not set out the blind allies into which I have driven myself in an effort to escape the unattractive conclusion to which she and I feel driven."

AND:

"The effect of the policy adopted by the Home Office and now the Ministry of Justice therefore depends upon the order in which the court pronounces its sentence. Unless the court applies its mind to the differential effects of sentencing in any particular order, the outcome in relation to any individual prisoner is likely to be arbitrary. As the example given by Ms Seddon demonstrates, the prisoner who serves the short sentence first is eligible for release on Home Detention Curfew before the prisoner who serves the long sentence first."

AND:

"The contention of the Secretary of State produces an outcome which any legislator would have found surprising if he had had his attention drawn to it, namely that a prisoner sentenced entirely under the 1991 regime or entirely under the 2003 regime would be dealt with in one way, but for no reason that anybody could explain sensibly, a prisoner who fell to be dealt with under both regimes would be dealt with in a way which objectively is less advantageous to him.

CONCLUSION:

This is a serious legislative cock-up caused by an interaction between the multiple incompetencies of various stupid people. The Defendants to be indicted are:

1. Parliament (which includes a number of members who could not make a profit from running a whelks stall on Blackpool beach but have considerable expertise in claiming for expences incurred as MPs) for passing legislation in a state of panic and without proper consideration; and


2. The Parliamentary Draftsmen/Draftswomen (who never have run a whelks stall, or, indeed, anything else) for not reading beyond their immediate brief; and


3. The Ministry of Justice (whose employees do not know what a whelk is) for its belief that it can do what it likes regardless of, or more accurately, in complete disregard of, the law by applying "unlawful" policies.

These people (and I mean all of them) present a clear and present danger to your and my human rights.

QUIZ QUESTION:

In less than 250 words summarise the law relating to sentencing for criminal offences in England and Wales.