“Every man has a right to be conceited until he is successful.”
~ Benjamin Disraeli
This morning we awoke to the news that an influential body of legal experts has called for the mandatory life sentence for murder to be abolished. The Homicide Review Advisory Group has published a report that calls for judges to be given complete discretion when sentencing those convicted of murder. The report suggests that with “appropriate education”, the “already receptive public mind could develop in the general direction long favoured by legal experts and the judiciary”. The case for this reform rests on there being many shades of murder and, in particular the concern that those guilty of murder for reasons of euthanasia should not be dealt with in the same manner as those committing acts of mass terrorism.
For centuries, murder was punished by the death penalty. Capital punishment was abolished in 1965. Consequently those convicted of murder were given what was officially called a life sentence but wasn’t anything of the sort, at least not in the way that the great British public understands the term. A life sentence is commonly understood to mean spending the rest of your life in prison. Instead murderers have been given a minimum custodial term chosen by a judge and then, if they were no longer a danger, released on a life license, which meant that their liberty was very slightly restricted and could be recalled to prison if they misbehaved.
In recent years, there has been much debate about the merits of changing the punishment for euthanasia. The arguments rage on both sides of the debate, with one side claiming that the intended assistance in the killing of and with the consent of another is a new human right in an age when medical science extends life beyond any natural comfort zone and the other side warning of the risks of mistaken verdicts and defending the basic morality that says that all killing is wrong.
There has also been much debate about the merits of judicial discretion. The tabloid press makes hay out of the fact that judges routinely sentence light for heinous crimes. Partly this reportage misinforms the public as to the true factors involved. Certainly no newspapers attempt to report all of any particular criminal trial. They report the barest facts, the headline grabbing evidence, the jury’s verdict and the sentence, often mixed up with much commentary. So much commentary that proceedings have launched against various newspapers for contempt of court, for prejudicing trials.
We are responsible for the press we get. If we didn’t buy the tabloid press it would not exist. Murdoch’s titles are not sold on Merseyside because of the scandalous way in which they reported the Hillsborough Tragedy. The people there simply stopped buying them, en masse. The rest of us could take the same action if we cared enough. The truth is that we do not. We prefer scandal and tits to analysis and facts.
The problem will not be resolved by learned people calling for law reform and attacking the public for its lack of education. The general standard of education amongst our citizens is woefully inadequate, true. Successive governments have simultaneously attacked our teachers and imposed ludicrous educational reforms. Look at the numbers of people who now attend a University but still prefer to read tabloid trash or follow celebrity culture. There is now a fundamental divide between the public and those in the body politic. The chasm in between is filled with a cultural void. On one side, there are those of us who are highly educated. For the most part, they hold liberal ideas on various topics, are well informed (or so they like to think) and they do not mix with people on the other side of the tracks. On the other side, there are those who have education suited only to their working lives, they do not consider themselves to be well informed (when in fact they are, thanks to online social networks) and they do not mix with the powerful.
When these legal experts call for educating the public, they do not intend them to become well versed in history, law and politics. They want the press to run a campaign which bends “the public mind” to their own personal preferences. Not only is this the wrong approach nowadays, it is also a dangerous one. These particular law reformers imagine that once judicial discretion is unleashed all will be well because they are very close to the judiciary, in culture and in companionship. If their preferred reform were introduced, there would inevitably be a series of appalling decisions, which would further alienate the public at large from the powers that be.
To imagine that this divide is not already very close to ruining our civil society is a dangerous conceit. Neither the people who wrote this report, not the judges, nor the overwhelming mass of our elected politicians spend their time with people whose sons and daughters went out rioting earlier in the summer. Whatever the rights and wrongs of that behaviour, there were many thousands of young people involved, many more who were tempted and even more parents who thought no crimes worth punishing were committed.
Those with power should make the case themselves, instead of preparing a propaganda offensive, which is what they really mean when they talk about educating the public. They won’t find it an easy argument to win.
Presently, there is no Act of Parliament prohibiting murder. It has just always been regarded as wrong. Not only wrong but a wrong against us all. That has been the position of English common law since time immemorial. The law makes a distinction between murder and manslaughter. The time has come to make a distinction about the degrees of murder. Euthanasia (or mercy killing as its proponents would prefer to rebrand it), could be charged alongside a higher degree of murder. A jury could be left to decide after a trial. Parliament could pass law which says that those convicted of Euthanasia are not subject to mandatory life sentences.
In other words, someone charged with euthanasia could be indicted on two alternative counts: firstly, murder and secondly, euthanasia. The facts of the case would then be argued by both sides in front of a jury, as happens in every serious criminal case already and the jury would make the decisions as to whether to convict and, if so, whether there had been murder plain and simple or euthanasia.
The advantages of keeping euthanasia a crime and leaving the crucial decisions of fact to the jury are firstly, that anyone thinking of committing murder but disguising it as euthanasia would know that they run the jury gauntlet and, secondly, that the democratic view of the jury is much more likely to be closer to the public view of events that the alienated judicial view. The press would find it much harder to inflame public opinion about a jury’s decision than it does about a judicial decision made by someone completely out of touch with life on our council estates and police no go zones. There are many more of these areas than our authorities will ever admit: a police no go zone is a place where they will only every appear in strength of numbers. (Incidentally, that does not apply to any of Occupy London’s encampments.) You have to live in one to understand the situation on the ground because the press does not report these ugly truths either, lest it harms circulation.
Euthanasia could remain a crime but its sentence be within the remit of judicial discretion. Sentencing should not be in the hands of the mob. This approach would not risk judicial discretion running riot with the criminals we so sorely want to punish.