The public and the legal profession want change. It would be a tragedy if the justice minister is thwarted by his peers
The justice secretary, Kenneth Clarke, should beware of a report published this week advising a change to the law on murder. He has been mugged four times already in the dark alley that passes for law reform. He gets no support from his leader, his colleagues, his party, the opposition or the media. They hurl at him the hobgoblins of prejudice, fear, conservatism, vindictiveness and xenophobia, supported by the ghouls of Fleet Street. In reply, Clarke can deploy only common sense and public opinion, and in penal policy they hardly raise a squeak.
The judges and academics of the Homicide Review Advisory Group point out, for the umpteenth time, that the British law on murder is shockingly out of date. It requires a "mandatory" life sentence of at least 15 years for a crime that lumps together premeditated killing, mercy killing, killing under extreme provocation and gang violence that results in death. Attempted murder, where death may have been averted only by assiduous medical care, is treated quite differently. In the case of murder, sentencing does not match the circumstance or the perpetrator. There is no scope for plea-bargaining. Judges have no discretion to take into account the likelihood of rehabilitation or the lack of risk of reoffending. It is all primitive.
Any violent death is awful, and murder especially so. It is also rare, and each one is peculiar. Those who have studied murder rates in different countries see them as reflecting many social and economic factors. They tend to be highest in the drug economies of Central and South America. They vary with the availability of weapons, with migrant cultures and with the efficiency of emergency services. New York murders fell dramatically when hospitals were compelled to admit critical cases irrespective of insurance cover, cutting the lag before treatment and thus the chance of survival by a crucial 20 to 23 minutes.
When capital punishment in Britain was abolished in 1965, a notional pact was reached between parliament and public that life sentences "should mean life". This was interpreted as at least 15 years followed by the possibility of release on a "life licence". Ever since, parliament has treated this pact as a sacred icon of retributive justice. While other states, even the US, updated their laws, Britain remained intransigent. If you kill someone, even if you did not really mean to do so, you go to prison for 15 years and are never fully "released".
Time and again the judicial establishment has pleaded with parliament for a more sophisticated approach to homicide. In 2004 the Law Commission called the law on murder "a mess". A year later it was "a rickety structure set on shaky foundations". A further year passed, and three sorts of homicide were identified for different treatment, with a fixed tariff only for the most serious premeditated killings.
Two directors of public prosecutions, Lord MacDonald and Kier Starmer, have added their voices to pleas for reform. According to Starmer, many juries "instinctively kick against the idea that someone should be convicted of murder with a mandatory life sentence" when there was no intention to kill. This replicates the pre-1965 situation, where juries refused to convict people if it meant they would hang – a phenomenon thought to have created Britain's then "low" murder rate.
The left used to wear with pride a liberal reputation on law reform. Past Labour governments oversaw the end of capital punishment and reforms to divorce, homosexuality and abortion. This ended abruptly in the 1990s, with Tony Blair's cynical soundbite, "tough on crime, tough on the causes of crime". The prison population soared to 85,000 under Labour, and home secretaries lived in terror of the tabloids. The lord chancellor, Lord Falconer, said he was "not convinced of the need for a change", and that was that.
True, in the Dutch auction for penal retribution, the Tories gave not an inch. No peep of progressive thought on sentencing came from them in decades. This was the more puzzling in that public opinion, as opposed to knee-jerk newspaper editorials, was relatively open-minded. Surveys showed a readiness to reform cannabis law. Polls indicated an acceptance of non-custodial sentences where appropriate. A Nuffield survey last year found widespread agreement that murder embraced complex crimes and that punishment should reflect this. Only 20% thought a gang member who did not actually kill should be liable for a murder.
On coming to office last year Clarke proved himself a pragmatic reformer. He seemed determined to rescue his party and the justice system generally from its reputation for reactionary inertia. This was not, he declared, because he regarded most punishment as excessive, but because it was wasteful, inefficient and counterproductive. It created criminality rather than reduced it.
Spurred by a curb on prison spending, Clarke proposed to cut remand in custody and permit a 50% cut in sentences for early guilty pleas. He hinted that violent rape might be treated differently from date rape. He wanted to end the growth in indeterminate sentences that had 3,000 people still in prison beyond their indicative tariff. The only word for most of this was commonsensical.
The response was grimly familiar. Clarke was shouted down in his plea that too many people were in jail for too long and for trivial reasons, and that remission for guilty pleas would save court time. His proposals were rubbished by the prime minister and home secretary, and he was forced to accept the primitivism of mandatory prison for knife crime and mandatory life for "two strikes" serious offenders. There is no way he'll cut the prison population.
David Miliband and Labour's justice spokesman, Sadiq Khan, played to the gallery with demands that Clarke was setting 2,500 "dangerous offenders free" and should be sacked. The days are clearly not over when Labour front benches bayed in cringing unison with the Daily Mail and the Sun. The Clarke affair has seen Britain's political community at its most depressing.
Justice requires that punishment fit the crime and its perpetrator. In the case of murder, this is what judges, prosecutors, the legal profession, the Law Commission and public opinion now regard as the way forward. For once there is a progressive justice minister in place with radical intent. It would be a tragedy if he is thwarted by the bovine tendency in British politics.
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