Schedule 21, TV sentencings and the growth of special measures

Perspectives in conversation with Wendy Joseph KC.

By William Raven

Between 2012 and 2022, Wendy Joseph KC, served as a leading judge at the Old Bailey, sitting on some of the highest-profile criminal cases of the time. When appointed, she was only the third woman ever to have held a permanent position at the court. Called to the Bar in 1975 she practised criminal law at Gray's Inn for over thirty years and is now, following her retirement, the author of two bestselling non-fiction books, Unlawful Killings and Rough Justice. Over the summer-break, she generously gave up her time, and we sat-down to discuss some of the biggest challenges facing the criminal justice system.

You were called to the bar in 1975, what do you consider to be the greatest change in the law that you’ve witnessed over that time?

The greatest change in the law is, probably, our acknowledgement that not everybody appears in the courtroom with the same advantages. There are whole groups of people who are very disadvantaged in trying to get what they are entitled to out of the courts, and that's led to many changes in procedure to protect them. 

That greater understanding of vulnerabilities has clearly evolved the courts greatly. In its day-to-day running's, how can these changes be seen?

Well, for example, if you've got witnesses who have difficulty giving evidence because they are very young or very old, because they are ill or have disabilities that mean they can't concentrate, or have language difficulties, all of these things are all covered by special rules of procedure which means the judge can oversee the way in which they give their evidence. 

What forms could these special measures take?

For cross-examinations the judge could stop them [the barristers] from using language or sentence construction that could be confusing. The judge can also stop the line of questioning if it is intimidating or aggressive. Extra-breaks can be given, sometimes we don't wear wigs and gowns if the individual is worried and the judge will sometimes go and see the individual beforehand. For those with language difficulties there are interpreters and we can appoint what are called intermediaries to sit and work with them. So, whether they're defendants or witnesses, these are all designed to level out the playing field. 

From the growth in special measures to the new Victims and Courts Bill [2025], now in the report stage, where there is a proposal to add an extra two years to sentences as a punitive measure for defendants who refuse to attend their own sentencing. Do you believe this to be practical, or for that matter responsible lawmaking?  

Given the pressure that there is on prisons at the moment, there are multiple questions here. Is it achievable, is it morally right, and is it even desirable to force a defendant to sit there for a sentencing hearing.  In many high profile cases, however, you're talking about people who are receiving life imprisonment with sentences to be measured in the thirties, forties, fifties or even sixties of years before they can apply for parole.

Well, you tell me whether adding on an extra two years is going to make any difference to their state of mind. The answer is clearly, no. 

It’s been described as an “imaginary panacea”, why do you think it’s been suggested at all?

In my opinion, it's largely a result of cases where everybody is watching, and now with television cameras being there, the sentencing exercise becomes a lot more important for the general public.

What would this be like from the judge's perspective?

For anyone who's ever sat on a bench [served as a judge] and tried to deal with a person who doesn't want to be there, they will tell you there is very little you can do. Suppose they put their fingers in their ears, you could pull their fingers out of their ears, if they closed their eyes, you could force their eyes open. So, what are you supposed to do if they turn the whole of the sentencing exercise into a circus.

Does that mean it could, in fact, be damaging to the process?

Well, if they spend their time screaming, “I'm not guilty, I'm not guilty, the jury got it wrong”, how is that going to help matters. You’d want them to sit and listen respectfully to the wrong that they've done and to the people that they've hurt.

Could there be a more practical alternative, that would both satisfy the demands of the wronged and dignify the process?

At this stage, I don’t know, but for those getting life sentences, who will never get paroled you might do better to make an order for them to watch a recording of the impact statements from the victims. This way they must listen to someone reading the judges sentencing remarks and they could then work with psychologists to help them understand exactly the wrong that they've done.

Ultimately, you wouldn't get the great drama which everybody wants in the courtroom, but the sentencing exercise shouldn't be about great drama. It isn't an assessment of the damage that has been done but a setting of the punishment that it merits. 

Would you criticise the Bill? 

I wouldn’t go that far, but there's an awful lot of knee jerk reactions going on. I mean sometimes I see so many knees jerking, I wonder if there's anyone left standing. If people just paused, and stood back, and looked at the reality of what they're trying to achieve, I think they’d have a far better chance of actually achieving it. 

Are there any particular instances where that friction, between the judiciary and politicians, can be seen? 

For example, when Axel Rudakubana was convicted for an offense of the gravest nature, he was still seventeen-years-old and the law does not permit a sentence from which he will never be released. The judge calculates all the features that he has to calculate and comes to the conclusion that he must serve fifty-four years before he can apply for parole. Then, instead of people saying “Yes, that's an appropriate sentence for a seventeen-year-old who did such a wicked thing”, there's a great outcry that he should have been given a whole life sentence.

Is that threat of reactionary governance alarming to you?

Yes, I could say I don't find it very attractive, but if you ask me what the alternatives are to a democracy, they're a whole lot less attractive. It should be a question of checks and balances shouldn't it, and by and large it does work that way. 

It has, however, resulted in the average (minimum term) length of sentence for murder significantly increasing, by around 60% since 2000.  Does that ever put the judiciary in a difficult position?

No, but it puts society in a difficult position. The minimum terms are increasing enormously for murder, and you can almost date it to when it happened exactly. It happened when the Criminal Justice Act [2003] was passed, in which there's a thing called Schedule 21 which creates the guide for sentencing those convicted for murder.

What impact did Schedule 21 have over your career?

Certainly, when I came to the bar in 1975, the average sentence was fourteen years and ten months. Post-2003 the average minimum tariff has gone up to just under 25 years and that is because of Schedule 21. It was done to deter youngsters carrying knives and deal with an emerging problem of gangs, but the idea that young people would say "Oh I think I'll stay home and watch the television instead", l mean it was never going to work.

In fact, we haven't got any fewer murders, quite the reverse, but now those who are convicted of murder, instead of occupying a cell for fourteen-years, now occupy a cell for on average just under 25 years. 

Alongside Schedule 21, what impact did ‘Joint-Enterprise’ convictions have?

The rules of joint enterprise, at least before the Supreme Court got their hands on it, meant that instead of having one person in prison you were ending up with all of his mates in prison as well. Then you wonder why our prisons are overcrowded, and if you increase the sentences for murder it has a trickle-down effect. The inevitable consequence is you've got to increase the sentences for attempted murder, because otherwise you can't keep the net-effect of proportionality. Then, in turn, that pushes the sentences on GBA (grievous bodily harm) up too, and so-on and so-on.

So the trickle-down effect goes on and on, and the sentences just keep going up.

These lengthier prison stays must have had a significant impact on prison overcrowding.

And there are outcries, if people don't go to prison for a long time. I'm not saying it's wrong, and I'm not criticising people who raise the outcry, but have a look at Scandinavia. They spend far short of the forty-seven thousand pounds a year locking up each prisoner that we spend. They've only got a sixteen-percent recidivist rate, because they spend the money on rehabilitation, whereas we've got up to a sixty-percent recidivist rate.

There seems to be a political consensus amongst all the major political parties, that the answer to overcrowding is, in large part, solved by building extra prison capacity. Do you think that is simply a plaster on what is a much deeper wound? 

It's hard to say, but in relation to all those people who since 2003 have been getting twenty-five year minimum terms, as a result of Schedule 21, very soon the doors are going to open and a whole load of men who are in their middle ages, who went into prison as young men are going to walk out.

They will have spent all of that time locked up, many for twenty-three hours a day, and all the problems they had when they went in will still be there.

The crisis of rehabilitation, and the lack thereof, must be a crisis of similar magnitude.

They'll still have the same difficulties, they won't have a job, they won't have many skills and a lot of them will come out with the additional difficulty of now being addicted to drugs because that is such a big problem in our prisons. If we think they are just going to walk seamlessly back into society, these men who've never taken responsibility for one day of their adult lives, who've never lived a normal relationship, or been in a normal social-setting with women or children, if we think they're going to walk seamlessly back into society, we're living in cloud-cuckoo land.

So, if we just keep locking up more and more people, for longer and longer, we don't solve any of the problems other than the immediate problem. Just because while they're locked up, they're not hurting us, doesn't mean that's what we should want. 

With thanks to Wendy Joseph KC.

Image: Gray's Inn