There seems to be a remarkable ignorance by just about every politician commenting on rape about what the present and proposed position is.
The starting point on conviction after a trial is five years. The defendant will serve half of that, minus any time served in custody and will be released on licence for the remaining period.
Unfortunately, Ken Clarke was careless with his words when he talked about, “serious” rape. What he should have said was that the five year starting point is just that. The sentence gets higher and higher for every aggravating feature; if there was more than one person, if weapons were used, if there was torture, if children were involved. And many more.
In those circumstances we are talking about serious double figures with the possibility of being Imprisoned for Public Protection if the judge comes to the conclusion that the defendant is “dangerous”. Here, the sentencing exercise works like this. What sentence would I have given, halve it and let that be the time served before he can even be considered for release. In the some serious cases this is effectively throwing the key away.
On the other hand, if a defendant pleads guilty at the earliest opportunity he is entitled to 30% off the sentence passed. That lessens the nearer the day of the trial. So a plea on trial day is worth a maximum discount of 10%, but he may get nothing. He will then serve half of the sentence, minus any time served in custody.
The government’s proposals, out for consultation, is that a very early plea on all offences could lead to a discount of 50%. So take that figure cut it in half again, deduct time served and that’s how you can reach a figure of 15 months for rape. It doesn’t inspire confidence and will inspire a Dacre firestorm.
For some reason David Cameron thinks that this is plea bargaining. It is not. Plea bargaining is when counsel asks in open court the judge for an indication of what sort of sentence he would impose on a guilty plea. This is called a Goodyear direction.
So there seems to be a misunderstanding of what on earth is going on. And, if interest groups attack Ken for diminishing the seriousness of rape as Miliband did they would be plain wrong.
This is all a classic example of an interesting policy to encourage guilty pleas at an early opportunity where those making it either haven’t understood it or explained it properly.
My personal view is that we should leave things a as they are and give judges more discretion. Don’t believe the Mail myths about “soft” judges. There are not many and even then the prosecution can take them to the Court of Appeal on an Attorney General’s Reference.
However, if we do want to embark upon this rather pointless exercise let it only be for relatively minor offences.
And then, of course, we have to determine what “minor” is. Trashing someone’s home in a burglary, minor? Giving your wife a black eye, minor? Who on earth was the spotty youth who dreamed this one up?
It is potentially a steaming pile of toxic political shit that will stick to this coalition unless it is cleaned away quickly.
So the lesson is to listen to those who know about their specialist subjects, and at least get a grip of what ever it is you are trying to sell to the public.
And never ever put yourself in the position where Ed Miliband can get the moral high ground on crime.
Oh, and for you nutters who want Ken to go on this one; dream on. The Lib Dems won’t wear it and, when he is not being lazy or obstinate, he is very good at his job.
Jerry Hayes was Conservative MP for Harlow between 1983 and 1997. He practises as a criminal barrister in London.