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Politics and the death of judicial discretion

Andy Cash, Director and Criminal Solicitor dicusses knife crime and the two strike rule.

In my 36 years as a criminal lawyer one of the most significant and troubling changes I have seen has been the increase of politically driven statutory minimum sentences. These have risen alongside the more benign controls on sentencing provided by the Sentencing Guidelines Council.

Sentencing guidelines are useful tools to ensure that sentencing is consistent and most importantly understood by lawyers and defendants alike. Guidelines are just that, they leave final decisions about sentence to the court that has all the evidence before it.

Fixed minimum sentences deprive the court of any discretion. They now exist in cases of dwelling house burglary, firearms offences and certain drug offences, all more usually dealt with in the Crown Courts.

The latest extension of the minimum sentence is likely to have wider impact as it provides a minimum sentence of 6 months for someone found guilty for a second time of the illegal possession of a blade. This means that Magistrates are now likely to be constrained by such sentences, and that more cases will find their way to the Crown Court. 

Possession of knives had already been the subject of judicial comment and case law over recent years had increased the likely anticipated sentences. The introduction of statutory minima can only be a political response to press coverage of cases. These sentences must rest on the premise that higher sentences serve to deter others from offending, something that has never been statistically established. The courts can only not follow the minimum if to do so would be unjust. 

The really effective way of reducing knife crime is to find ways to educate and change behaviour, particularly of the young. Short fixed sentences do nothing to address the real issues and once again we are left with the idea that changing the criminal law is the only way to effect social change.

The real effect of such statutory restrictions is to add to the swelling prison population and the cost of our overburdened criminal justice system.

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