Yesterday, as newspapers reported that convicted sex offender Paul Gadd – formerly known as Gary Glitter – had been recalled to prison having apparently breached the conditions of his licence, the following tweet was posted by a legal commentator and practising barrister:
Now, it is a matter of personal interpretation as to whether this tweet makes any sense on its face. A plain reading suggests a degree of outrage at Gadd having been returned to custody, which presumably is not what the author intended.
But it was something else, implicit in this tweet, that irritated me. So, somewhat mischievously, I bit.
Now. As events elsewhere have recently affirmed, the only thing duller than somebody else’s Twitter dispute is play-by-play analysis of somebody else’s Twitter dispute. So that’s not where this is going, don’t worry.
What I want to look at instead is that something else. The unspoken part of the tweet that irked me enough to break my (admittedly fairly arbitrary) rule against giving amplification to those who seek it but whose comments do not warrant it. Because, while small in isolation, I think this something else speaks to a bigger, serious problem in legal commentary. And I don’t think that my snarky attempt at pithiness quite captured the point I was driving at.
So what’s my problem?
Well it’s this.
As the commentator subsequently sought to clarify in a series of follow-up tweets, the injustice that they railed against was not the recall of Gadd to custody, but rather the sentencing regime that saw him released after only 8 years to, if not reoffend, at least breach the terms of his release. Given the seriousness of his crimes, does this reflect justice?
Now this is, let’s be clear, an entirely reasonable question to pose. Entirely reasonable. Any person on the street, faced with the barest details of Gadd’s offending against children, may reasonably draw attention to – and rain fury upon – a legal system which results in such outcomes. Legal process being followed does not necessarily equate to substantive justice.
For my part (not that it matters for this exercise, but anyway), I personally do not think that serving 8 years for offences of such seriousness is enough. I have written elsewhere, including in my books, that I, personally, believe that the sentencing regime for sexual and violent offences has historically fallen woefully short in reflecting, in punitive terms, the harm caused. And the legacy of that is still visible today (just compare, for instance, sentencing guidelines for dealing drugs contrasted with guidelines for assault).
I also have a lot of sympathy with people – not least victims – who feel cheated, or conned, by courts passing long sentences of imprisonment, only for the offender to be automatically released after serving half of their sentence. I really do. I even wrote a whole chapter about it in my first book – The Big Sentencing Con.
But.
Here’s the thing.
That sentencing regime? The one that the original Tweeter is railing against, soliciting righteous outrage from her followers? The one that I, too, deprecate? The one which saw Gadd handed a sentence which is incommensurate with the seriousness of his crimes, and released automatically into the community at the halfway point?
It no longer exists.
Several major changes have been made. For one, the law governing sexual offences has been entirely uprooted since the 1970s, when Gadd committed these crimes. The BBC report of Gadd’s sentence hearing in 2015 summarises the judge’s sentencing remarks. The judiciary.gov website sets out the remarks in full.
And they bear repeating. Because the sentencing judge was at pains to emphasise how his sentencing powers were restricted because of the laws in force at the time of the offences. How, to take just one example, the maximum sentence for attempted rape of a child under 13, under the law at the time, was seven years. Today, the maximum would be life.
The above is an extract. The full remarks set out the approach that the law required the judge to take. For comparative purposes, I can say this: if Gadd committed these offences today, and was charged under modern legislation (the Sexual Offences Act 2003), he would be looking at a sentence well into 20 years.
As for Gadd being automatically released at the halfway stage of his sentence? That’s gone too. If he were sentenced today, he would have to serve a minimum of two thirds of his sentence before he was eligible for release on licence – and even then, it’s not automatic. He would have to satisfy the parole board that his imprisonment was no longer necessary to protect the public. If he remained a danger, he would have to serve his sentence in full.
Now, nobody could sensibly expect a person on the street to be acquainted with the finer points of criminal sentencing and custodial release provisions. As I said above, it is entirely rational for somebody reading the headline to query what the hell is going on. To demand: Is this justice?
But when that demand is made by somebody holding themselves out as a legally qualified expert, and commenting in that capacity, they can be expected to know the law. More than that, there is a duty – I believe – to provide your non-lawyer audience with the relevant context. The specialist knowledge that you hold – or ought to hold – and which your audience cannot be expected to have. In this case, that knowledge being: “The law has changed dramatically, and this “unjust” outcome would not be possible were these offences committed, or were the defendant sentenced, today.”
To deprive your lay audience of that essential context, whether deliberately or because you haven’t done the basic research, is inevitably to mislead them. It is encouraging them to rail against yesterday’s weather. It is whipping up a crowd to pursue Brian as the Messiah. It may well assist to garner clicks, or build a brand. But it does absolutely nothing to aid public legal understanding; to the contrary, it leaves an entirely false impression of how the law works. And an equally false impression of what needs fixing.
The public should be entitled to trust that we legal commentators take the time to ensure that our representation of the law is fair and accurate. If we cannot meet that bare minimum, we should perhaps reflect on whether our commentary is helping the public at all.