Who is Michael Howard really frightening?

Judges make mistakes, but it is no answer to hand sentencing to politicians, warns Lord Donaldson

Speeches at party conferences are intended to encourage the faithful and, if possible, to make converts of the undecided. Penal policy is intended to protect the public and reduce crime, while ensuring that the victims of crime and the accused are treated fairly. These political and judicial objectives are wholly different. The means of achieving them may be the same, but not necessarily so.

With this in mind I read Michael Howard's speech to the Tory party conference. I found much with which few would disagree.

He wants fewer criminals to be cautioned. Quite right. In the case of minor crime and a first offender, a caution may be effective. But a caution in the case of a serious crime or a second offence is quite a different matter. It sends the wrong messages and fosters the belief that you can get away with crime.

He wants fewer criminals out on bail. Quite right. But until the alleged criminal has been tried, we do not know whether he is a criminal. If he is innocent, there can be no greater injustice than to have denied him bail.

Judges and magistrates must be left with the discretion to balance justice to the accused with the need to protect the public. Sometimes they will get it wrong. If we can reduce the errors so much the better, but Mr Howard does not say how this can be done.

Mr Howard claims that prison works. The evidence for this is said to be the drop in recorded crime. No one doubts that in appropriate cases, deterrent sentences can make criminals think twice. No one doubts that keeping dangerous people in prison protects the public. What is more questionable is whether figures for recorded, as against actual, crime are a true index of the success of imprisonment. The less confidence that the public has in the police to bring the criminal to justice, the less crime will be reported.

The true answer is that provided by Lord Taylor, the Lord Chief Justice. Persistent criminals take account of two factors: the chance of being caught and what happens if they are apprehended. At present, far the most important is the risk of being caught. If, as many criminals believe, there is virtually no such risk, harsher penalties are irrelevant.

Mr Howard says that too many guilty men walk free from our courts because our lawyers are masters of using procedures to win their cases. He says that he ought to know the ways of lawyers because he is one. What he ought to know, but appears to have forgotten, is that it is far better that a guilty man should walk free than an innocent one should be convicted. He should know better than to suggest that, under the present rules, trials are games of monopoly under which you go free because you managed to avoid the square marked "jail".

Mr Howard says that for the Tory party it is the victim's interests that must come first, not those of the villain. Who could disagree? But justice requires that great care be devoted to identifying the villains. Anything less would be lynch law.

But it is when he turns to sentencing policy that Mr Howard really breaks new ground. He says that release from prison comes too soon. A robber who receives a sentence of two years may be out in one. How does this come about? Fixed sentences of imprisonment have always been subject to remission for good behaviour. That makes sense. Prison discipline cannot be maintained if it makes no difference whether the prisoner riots or co-operates. But this remission need not be anything like half the sentence. This is a very recent innovation. It came about simply because there were more prisoners than the prisons could hold.

Mr Howard now proposes virtually to abolish remission for good conduct. He does not say whether this will apply to existing prisoners, which would be a gross injustice. Nor does he say how the system could cope with an increased prison population. He appears to have given no thought to the problem of maintaining prison discipline. Of course he has a point. But good behaviour must bring some reward.

Mr Howard seeks to justify this reform on the grounds that he is supporting the judges. He says that the changes will enable the judges to mean what they say when they pass sentences. But other reforms that he proposes belie this claim. One of the essential skills of the good sentencing judge is to be able to spot the exceptional case in which a habitual offender can be reformed by being given a chance. Mr Howard proposes minimum sentences which would prevent judges from taking this course.

Far more serious is a proposal that two convictions for certain offences shall automatically lead to a life sentence. Release from prison in the case of a life sentence depends not on the decision of a judge but on that of the Home Secretary. Whether this will strike terror into the hearts of criminals, I do not know. But it terrifies me.

Our judges may make mistakes in sentencing but they can be put right on appeal. And however mistaken they may be, they are not swayed by sustained campaigns either for or against particular types of crime or particular criminals. Judges seek to do justice. They seek to balance the interests of the victims of crime and of society itself against the human rights of criminals. I have no confidence that politicians seeking re-election can be trusted to do the same.

This proposal to transfer responsibility for the time which a criminal spends in prison from judges to politicians involves a constitutional change of epic proportions that should be resisted by all who value justice.

Lord Donaldson of Lymington was Master of the Rolls, 1982-92.