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Is “grossly disproportionate” grossly disproportionate?

In Uncategorized on December 23, 2009 at 1:03 am

Not the snappiest of titles, but a quick response to a post by Iain Dale. Dale, unsurprisingly, was attempting, not entirely without merit, to defend the latest policy proposal from CCHQ. I say “policy proposal”, I do feel the term is somewhat generous in its application here, however I will try to keep things as polite as possible.

Dale’s says that “Chris Grayling sensibly proposes to change the law so people will only be convicted if they act “grossly disproportionately” in proctecting themselves or their families.” As it happens, I agree with Dale. I don’t believe Grayling intends to introduce anything even approaching what the Mail suggests (“TORIES’ LICENCE TO KILL A BURGLAR)”. I do, however, believe that he probably wished to suggest that he did.

This is very clearly another Conservative “quick response” policy (or to the less favourably minded, “kneejerk reaction”) to the recent case of Munir Hussain, who was jailed for over two years along with his brother after attacking burglars who had held his family hostage. Now, in comparison to the general quality of Conservative policy responses, which includes the “four years for possessing a knife” howler, this isn’t too bad. Not many would generally disagree with a moderate version, just as few would agree with the jailing of Munir Hussain. However, Grayling clearly wishes to indicate that if he was in the Home Office and passed this law, this could not happen again. However, this is patent nonsense for two reasons.

Firstly, if chasing burglars away from a house and beating them so violently that you break a cricket bat in three places, and leave one of them with brain damage, isn’t classified as “grossly disproportionate” then I shudder to think what the implications of such a law are. I believe Grayling is either being disingenuous, and that the protection in his law could never apply to the Hussains, or that it would be so vaguely defined as to rely wholly on judicial discretion.

This brings me on to my second point, that this is a clear case of judicial discretion. There is, as far as I can tell, no mandatory sentence that requires the judge to hand out such a lengthy prison sentence here. As such changing the law to something as lacking in detail as the Shadow Home Secretary suggests would not help one bit in this particular case, where a judge clearly feels that the defendents have gone far beyond any sense of proportionate response.

Nor do I feel this is a bad thing. We have seen the possible consequences — thankfully, partially avoided — of political straitjacketing of the judiciary with the recent case of Paul Clarke’s shotgun, where a strict liability charge and a mandatory sentence could have conspired to be a truly lethal mix. Some bloggers, notably our friends over at Though Cowards Flinch, assume that the somewhat less miserable than expected ending of this case indicates that nothing is wrong — but nothing could be further than the truth. Paul Clarke was saved, as much as he was saved, by the judiciary. He was damned, to the very real extent that he was damned, by political decisions taken in the 1960s and the early 00s, the police, and the Crown Prosecution Service. Moreover, a perverse effect of the case was that we still do not know the extent to which Clarke was guilty of illegally procuring the weapon — it was never even scrutinised.

You may feel that I am diverting from the point, but I wish to demonstrate that no matter how much we may dislike the outcome of this case, the only alternative, straitjacketing the judiciary so that they would not have had the freedom to come to this decision — is demonstrably worse. And also a very present problem. There are not only many existing laws which indeed do so, and often sadly with support from the public, but politicians often seek eagerly to add to their number, such as with the aforementioned Conservative proposal for mandatory sentences for illegal knife possession. We see, occasionally, what the result of such laws are, but these glimpses are outweighed massively by the propaganda and fear surrounding crime that the papers throw at us, day in, day out.

The Conservatives have a very real choice facing them in government, that faces every party in government. They can either accept the discretion of the judiciary, which occasionally proves outrageous to the public, and embarrassing to the government; or they can straitjacket the judiciary yet further. The only way for Grayling to prevent cases such as these re-occurring is to draft rigidly defined, shockingly libertarian laws that cause far more pain than they cure, and straitjacket the arm of government designed to deliver justice. This policy proposal seems relatively mild by Conservative standards, and unlikely to be drafted in such a way as to result in licensed vigilantism. I don’t believe for a moment that Grayling intends to do that. But in seeking to suggest that he does, he could be creating a massive rod for his own back.

Chris Grayling sensibly proposes to change the law so people will only be convicted if they act “grossly disproportionately” in proctecting themselves or their families.
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  1. Good post, some food for thought there. In response to the Paul Clarke case, how do you think we should alter the law, if we should at all?

  2. Well, firstly, remove the ridiculous mandatory sentence for *possession*. That way, a judge can take into account circumstances. Ideally, possession without a license should stay illegal, but the law should be enforced so that even if a case is taken to court, if circumstances absolve the defendent of moral guilt then a criminal record can be avoided.

    Secondly, introduce a weightier charge for illegal *procurement* of a firearm, and encourage police to press charges when they have evidence of this. Doubtless, this will result in many secret authoritarians throwing up their hands in horror and declaring that conviction rates will go down. Possibly. What’s more probable is that courts will be given the freedom to actually determine whether someone should be punished for illegal possession or whether they do not deserve this. Can’t have that, can we? An effective judiciary? Phshaw.

  3. Pesonally as a Grays Athletic fan (Ive been supporting since 1965) I feel this article is a shambles,and was outraged to read it. Please could you explain your reasoning behind this ridiculous entry?

    • Hi Roger,

      I’m sorry, but I’m not sure I entirely follow you. How does the above article refer to the Grays Athletics?

      David

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