Second Time Around

Stephen Sedley

An appeal, you might think, is an argument that a lower court has got it wrong. Whether you would consider it to be ‘a piece of linguistic shorthand which accepts the existence of a penumbra of uncertainty in order to achieve universal comprehensibility at a very low level of exactitude’ is more doubtful; but what these authors seem to have in mind is that even a right of appeal doesn’t necessarily allow you to challenge everything that has happened so far. This is particularly the case with findings of fact by civil judges. It is also the case, unless there has been a judicial misdirection, with the verdicts of juries, the vast majority of which are delivered in criminal and not civil cases.

This book is concerned only with the civil jurisdiction of the Court of Appeal. Criminal appeals, which came into being only at the end of the 19th century and are now heard by the court’s Criminal Division, deserve a separate study. It would be interesting to consider, for example, what the appellate role has been in the present prison overcrowding crisis, which has very little to do with the unnecessary jailing of petty offenders and a great deal to do with the over-incarceration of those who have earned a custodial sentence. When the reforming 1991 Criminal Justice Act came on stream, the standard sentence for a daytime burglary of an unoccupied dwelling by a repeat offender was about 18 months. Today, despite the act’s objective of minimising custodial time, it is around three years. Multiply the doubling of such prison terms by the fact that burglars are well over a tenth of the prison population, and recall that the same period has seen a sustained media campaign against supposedly soft judges and lenient sentences, and you begin to see what is happening. The attorney-general’s once little-used power to get a lenient sentence reconsidered by the Court of Appeal is now used regularly, and for the most part successfully, to keep the escalator moving upwards.

The system might even so have coped if it had not been required to absorb a new cohort of prisoners serving indeterminate sentences. Although the number of course includes killers and other major offenders, there are now almost ten thousand indeterminate-sentence prisoners warehoused in England and Wales. The imposition of indeterminate sentences is prescribed by Parliament, but the fixed-term ‘tariff’ – the element of the sentence reflecting the punitive term which would otherwise have been served – is sometimes so short that by the time they come up for parole offenders have done no work on their offending behaviour and cannot be released. For such prisoners, many of them young and disturbed, an unlit tunnel of unknown length lies ahead. The appellate role is complex in such a situation: it has to respect what legislation prescribes, but as long as Parliament leaves judges some discretion the courts can seek to mitigate law with justice. The legislative erosion of judicial discretion may play well with the media, but it comes at a price. What may, even then, be hard for judges to ignore is the noise of the journalistic echo-chamber which in this field sometimes passes for public opinion.

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