Editorial: Judges just meat in sandwich

Judges have every right to feel aggrieved at the arrows directed their way as the Government unveiled its sweeping sentencing reforms. It was largely their fault, the Prime Minister intimated, that more prisons were having to be built. They, not tough laws abolishing suspended sentences passed by the Government in 2002, were responsible for the imposition of too many longer terms of imprisonment. And they will bear the consequences, through the introduction of a Sentencing Council that will seek to deliver greater predictability on prison musters by providing more consistent sentencing.

Never was there an admission from the Government that the judiciary were, in fact, the meat in the sandwich of sentencing quandaries that it had either created or failed to address. Or that a Sentencing Council is, at best, a dubious means of leaving the solving of these problems to others.

The council, made up of five judges and five political appointees, will draft sentencing guidelines for the judiciary. As such, it sees the Government taking greater control of the way judges sentence offenders. And, as such, there are legitimate concerns that it represents a disturbing violation of the relationship between the Executive and the judiciary. That relationship involves a separation between the Government and the courts, one that demonstrates the courts are not in thrall to the Government other than to recognise its right to rule according to the law it is entitled to enact.

That does not mean the two need to be at odds. But the courts must be able to sit in judgment, and to interpret legislation, without fear or favour. The details of the council, yet to be released, will dictate the potential for the trammelling of judicial independence. But it is apparent that, as should be the case, there is discomfort in the judiciary. A compromise put together by the Law Commission, which seeks to maintain judicial discretion by enabling judges to depart from council guidelines if it is in the "public interest", offers little solace. If judges move away from mechanical decision-making, they will have to explain themselves. Only the most intrepid would fancy stepping into the attendant spotlight.

If the Government wishes to change tack in sentencing policy, it should do so through amending legislation. Adroit law would render interpretation largely redundant and ensure heightened predictability in judicial sentencing practice. The recourse to a Sentencing Council is particularly unfortunate because the thrust of the new policy is correct. It is apparent that prisons do not so much cure offenders as encourage recidivism. The introduction of home detention as a sentence in its own right and a new tier of community sentences for lower-level offences are, therefore, welcome. The caveats are that such alternatives must not be a soft option and must be properly enforced. They must be as harsh in their own way as time behind bars. If, notwithstanding National Party qualms, they also save money by driving down prison costs, so much the better.

It is also important that the package includes two new drug and alcohol treatment units in prisons, and two further general-purpose special treatment units to provide intensive rehabilitation. Rehabilitation programmes have been a victim of the influx of offenders occasioned by the Government's 2002 legislation. But without them, imprisonment is merely a means of postponing reoffending.

It is time alternatives for punishing lesser offences were adopted. The burgeoning prison population is unacceptably high. Remedying that should not, however, entail the passing of the buck and the compromising of judicial independence.