21 April 2011

The War of Brewer's (Sh)ear(s)...

So now we know. Labour is wretchedly befuddled about (a) the number of new prisoners their policy of mandatory prison sentences for knife possession will jail; (b) how much this will cost; and (c) according to independent researchers, seems to have invented its figures on the cost of knife crime to the NHS, substituting "fantasy" for analysis.  However, for a certain section of the electorate, I'm sure mandatory sentencing for knife possession is an appealing message. Its exclusionary logic reassures. All we have to do is bang these bastards up. The terror of the barred cell will nip the problem in the bud.  But will it? What evidence is there that ratcheting up prison sentencing will decrease knife carrying?  The appeal of mandatory minimums relies on a fairly simple account of human behaviour. Would you carry a knife, if you were sure you would go to jail if caught? Not generally going about in martial array myself, I'm not sure. However, since it is a nonsense to suggest that the reason I don't carry a knife about town with me is its illegality, prima facie, it seems equally problematic to suppose that those who do carry knives are scofflaws simply because the offence does not always lead to a prison sentence, and are likely to forego their weapons by introducing inflexible judicial penalties. In both cases, attributing causal force to the letter of the law is to distort the real whys and wherefores of human behaviour.

A much more nuanced image of why young people involved in "gangs" emerges from recently-published qualitative research by the respected Scottish Centre for Crime and Justice Research. In Troublesome Youth Groups, Gangs and Knife-Carrying in Scotland, the researchers conducted case studies in five locations across Scotland.  Interviewing young people, they aimed to "provide an in-depth account of the structures and activities of youth gangs in these settings" and "an in-depth account of the knife carrying in these settings". It is beyond the scope of the present post to summarise their findings in detail, but significantly, the researchers found that while fears of being imprisoned did have a general deterrent effect in some cases, many respondents "were unclear or incorrect as to the precise legal consequences of knife carrying" [Para 6.19] and prison's effect on restraining the violent, knife-carrying career of others appeared negligible. The reasons for knife-carrying were manifold and are worth reading at in-detail.

Labour's “mandatory discretionary” prison sentences...

Much of the criticism of Labour’s “mandatory discretionary” knife crime policy has been, I’d suggest, somewhat wrongheaded.  Encouraged by Newsnicht, there has been some suggestion that Labour's idea of a "discretionary mandatory" minimum jail sentence for knife-possession is an absolutely muddled and confused innovation. The incarcertator's motto - Carry a knife, go to jail - suggests sheriffs will enjoy no wriggle room when sentencing knife-carriers. How then can Gray consistently speak of "extreme mitigating circumstances" which might subvert the demands of Labour's six month minimum sentence, Kerr of a "degree of latitude"? Both proved dismally incapable of explaining their position. However, as I understand their proposals, and their past amendments to the Criminal Justice and Licensing (Scotland) Act passed in Holyrood's last session, what Labour is proposing is a presumption in favour of six month custodial sentences, with statutory language permitting judges to ignore that presumption in circumstances which they are willing to identify as exceptional.  In this, they are simply copying the approach of the 2003 sentencing amendments to the Firearms Act 1968. Applying to the offence of unlawful possession of a firearm, the statute reads as follows:

§51A(2) The court shall impose an appropriate custodial sentence (or order for detention) for a term of at least the required minimum term (with or without a fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.
§51A(5) In this section “the required minimum term” means—
(b) in relation to Scotland—
(i) in the case of an offender who was aged 21 or over when he committed the offence, five years, and
(ii) in the case of an offender who was aged under 21 at that time, three years.

Substitute guns for knives, and five years for six months, and you arrive at some understanding of what Labour proposes. Contra Brewer, sentencing under the Firearms Act, or a knife-crime proposal of the same kidney, is clearly different from the current dispensation, where judicial sentencing discretion is not structured in this way. It is one thing to ask oneself, what sentence should I impose in all of the circumstances of this case? It is clearly another to start your deliberations from the presumption that you will impose a six-month prison sentence, only then considering if the excuses proffered by the friendless miscreant in the dock are "exceptional" in character. None of Scottish Labour's various mouths, advocating this policy, have managed to make any of these perfectly salient points in their own defence. Their dismal eloquence seems to have been exhausted at the level of um, aw… 

The interesting thing about the ‘exceptional exception’, it seems to me, is its implicit recognition that there are circumstances in which applying the mandatory prison sentence will be palpably unjust. Remember the case of Gail Cochrane? She was the Dundee woman who kept her father’s World War II service revolver under her mattress. When her house was raided by the polis, hunting Cochrane’s son, they discovered the firearm. Tried for the illegal possession of this gun, Cochrane’s sentencing was governed by these sections of the Firearms Acts, instructing judges to send those convicted of gun possession to jail for a minimum term, if the convict cannot demonstrate exceptional circumstances. Were the circumstances of Gail Cochrane’s illegal possession of the firearm exceptional? Not really. Was her punishment, one of a five year term in prison, ridiculously excessive? Without question. Cochrane only escaped the snare of this mandatory minimum sentence thanks to a divided Court of Criminal Appeal, who decided that exceptional circumstances existed, substituting a community penalty in the place of a half decade in prison. Undoubtedly, I’d suggest, a just judgment in the individual case. However, it was only achieved because two of the three judges hearing her appeal effectively disapplied the law which parliament enacted.

Elsewhere in the world, the American approach to criminal justice furnishes a salutary example of other oddities, generated by mandatory minimums. Prompted by concerns about crime and attempting to fence in the discretion of a feeble and indulgent judiciary, mandatory minimum sentences have been introduced in a number of areas.  Famously, California has a three-strikes rule, which provides that on a third conviction for a felony, Californian judges must impose a 25 year to life term in prison, whatever the nature of the felonies or the felon. Similarly, the American Anti-Drug Abuse Act 1986 introduced a series of mandatory prison penalties for drugs possession. The list of mandatory federal penalties makes grim reading.  Interestingly, research on how these sentences have worked in practice reveals that discretion has not been extinguished by mandatory minimums, as the legislators intended, but has simply been displaced. By depriving judges of the capacity to deal differently with different cases, the crucial decision becomes whether or not to indict the accused of an offence with a mandatory minimum penalty. The vital decisions are shunted down the decision-making tree, to prosecutors who decide whether or not to take forward criminal proceedings and police officers on the ground, who often have a greater degree of latitude in the exercise of their duties than is often admitted or imagined. Critically, how prosecutors and police behave is liable to be informed by an awareness of the potentially draconian nature of mandatory penalties. However, as Gail Cochrane's case demonstrates, in some cases, such an awareness will not prevent prosecutors from taking forward proceedings whose results will be foreseeably unjust.

Mandatory minimum sentences & their chimeras: the case of Brewer's shear...

So what about the Gail Cochranes which Labour's knife-possession proposals would generate? On Newsnicht, Gordon Brewer put a readily envisaged scenario to Andy Kerr. What if Gordon was in his garden, hacking a hedge into  a heroic, leafy echo of his own likeness. The hardy roots defying his shears, its two blades come apart. In his frustration, Brewer shoves the shard-shear in his pocket, and hies him to a nearby hostelry, there to drown the sadness and frustration of his unfinished topiary. Zip forward an hour and a half, and a now lager-breathed Brewer gathers his nerve to return to his pruning. But hold! Brewer's purposeful march is arrested by a police intervention in the street, constables having espied the handle of his "weapon" hanging out of his pocket. His collar felt, Brewer becomes an unexpected statistic exemplifying Scotland's booze and blade culture. 

Should he go to jail for six months? In his Newsnicht interview, Andy Kerr seemed to imply that Brewer's case would be exceptional, and thus escape a six-month term. Is it really? Just as Cochrane had no truly exceptional excuse for her possession of the firearm, her reasons were perfectly commonplace, it seems to me that Brewer too would struggle to make the case that his idle knife-possession was sufficiently distinguishable from other cases, to warrant a departure from any presumption in favour of imprisonment, passed by Holyrood.  Indeed, I'm surprised that Kerr didn't insist that Brewer be locked away. After all, what more draconian lesson could one be given that knife-possession will not be tolerated? No excuses, sir. Off to chokey you go.  That, after all, is the purpose of mandatory minimum sentences. They strip away the context, the justifications, and the excuses which might arise from individual cases, substantially pre-judging what penalty is to be imposed. There is a very real possibility, therefore, that the pruning Brewer would serve out half a year in a cell, for his slip, if Labour's proposal is implemented. However, focussing on these potential chimerical instances in extreme cases shouldn’t distract us from the more fundamental issue – the question of whether or not it is right nor beneficial to summarily jail  (almost) all persons caught with a knife in public. As Kerr said, of Brewer's scenario:

Andy Kerr: "Your case is not what we see in Glasgow, what we see in Inverclyde, what we see elsewhere in this country. What we see is kids - largely kids - going out -"

Gordon Brewer: "The law's not going to be that its mandatory for young people in Glasgow but not anyone else, is it? ..."

Andy Kerr: "What I'm saying is your scenario is quite unique or different in terms of what we're seeking to do...."

It's the "kids" we read about in the Scottish Centre for Crime and Justice Research report which Gray and Kerr are after.  We certainly don't need to bang up Gordon Brewers and Gail Cochranes. I ask anyone, tempted by the simple logic of Labour's policy on knife-possession, to read the accounts given by those young people, their reasons for carrying knives, their limited consciousness of the law, the criminal penalties and the researchers' ambivalent assessments about whether serving prison terms did them or the community any good. Labour are asking us all to put all of our faith in the crude determinative capacity of law and prison to solve our problem with knives. They offer no evidence. Their costings are revealed to be ridiculously inflated and borrowed from the pages of the Beano. The number of new prisoners they envisage locking up ranges from 500 to 2,000, depending on whether you ask their finance or justice spokesman. Either way, they seem to think £20 million quid will do the business. If I was an exponent of this policy, frankly, I'd feel deeply aggrieved by the slap-dash, insultingly unserious way in which the Labour Party have worked out how this policy would work in practice and how much it will cost to fund in these straightened financial times. You'd almost think this was a crudely populist electoral expedient, that they have no intention of introducing. Surely not?


  1. "...according to independent researchers, seems to have invented its figures on the cost of knife crime to the NHS..."

    Or maybe they got them from this article in the, ahem, Sun?

    Interesting, however, that you mention prosecutorial discretion from the American experience, because I think one point that Labour has been incapable of conveying is that the 'mandatory/discretionary' scenario would only apply to those currently prosecuted for carrying a knife, which would presumably obviate the Gordon Brewer-type scenario. (Although I think I've heard Iain Gray make the point.)

    Thus the basic proposal would be qualified both as regards a degree of judicial discretion and - probably more importantly - discretion as regards the decision to prosecute in the first place, with the obvious danger of the Cochrane-style scenario.

    Thus I think the basic intention of the proposal is perhaps to introduce a presumption in favour of the jail sentence for those carry an knife as an offensive weapon, but Labour seems to be having difficulty articulating this, but I suppose that's always a danger when complex legal issues have to be reduced to the level of soundbites for an election campaign conducted by people like Andy Kerr.

    Perhaps you'd like to offer your lawyerly skills to Labour as some sort of spin doctor, LPW?? ;0)

  2. Stuart,

    A wry spot on the £500,000,000 figure! On your other point, something must surely be amiss when potentially the clearest publicly available exposition of Labour's knife policy appears on the blog of a random cybernat, fundamentally unsympathetic to it. I think you are right that their difficulties are attributable in part to the underlying complexities (though these are hardly brain-folding). There is also the political dimension of this. With their focus on "toughness", Labour is understandably keen to emphasise mandatoriness, hard lines and the simple refrain Carry a knife, go to jail.

    By contrast, you'd make the discretion-emphasising arguments if you were trying to convince folk with qualms about the potential injustice of mandatory minimums. It is hard to turn those reassurances into a robust-sounding political motto, to bludgeon your opponents with.