On the sentencing remarks in R v Venables

Sentencing is a solemn and serious occasion, not only for the defendant and those hurt by his offending, but also for society at large. The power to deprive people of liberty must never be exercised lightly, and we thus entrust it, for indictable offences, exclusively to the judiciary. In Her Ladyship‘s sentencing remarks in R v Venables, as passed on 20 July in the Crown Court at Worcester and published online, Tipples J had a somewhat peculiar way of wording this obligation (emphasis added):

[1] David Venables I have to sentence you for the murder of Brenda Venables in May 1982, which you were convicted of by a jury of this Crown Court by a majority of 10:2 on 15 July 2022.
[…]

[16] David Venables, I must sentence you for murder. The only sentence I can pass on you is one of life imprisonment. It is in any event the proper sentence for your crime. I also have to set the minimum term that you must serve before the Parole Board can consider you for release. That minimum term will reflect your overall criminality.

Tipples J rather oddly seems to distance herself from the task at hand by inserting a series of unnecessary qualifying verbs into the most operative and serious parts of the remarks. I have noted that depriving someone of her liberty must never be done lightly, but taking the task seriously is quite different to appearing to take it reluctantly. Sentencing remarks, which will be far more widely disseminated than other judicial pronouncements, should have a taut style of declarative, unmistakeable sentences that communicate with clarity and precision. This is in part a matter of æsthetics. There are many times in the law when great flowery achievements of rhetoric are called for, but not in sentencing. Direct sentences should strike at the heart of the convict‘s conduct and communicate with efficiency and authority why action is being taken. The audience (both those partial to the convict and the victim—and in the instant case, involving uxoricide, these groups overlap) is filled with uncertainty. The rhetorical style that most speaks to such an audience seizes the moment and wastes no time whatever. These extra verbs in the sentencing remarks add no real meaning compared to direct sentences (I sentence you)

These æsthetic grounds neatly overlap with the functional reasons for certainty. Through criminal sentencing, the State takes decisive action against public wrongs (after Blackstone). Where wrong has been done and injury suffered (as here), the Crown, as fons iustitiæ, must publicly show that justice is done. The judge is the direct representative of Her Majesty, exercising Her Majesty’s power. The judge is also the executor of the will of Parliament set out in the various Acts that govern sentencing (most particularly in cases of homicide). There is no disunity between the Sovereign and the judge, nor between Parliament and the judicial function. The judge is at once the servant of the law and the Crown and the unbridled Sovereign herself of the courtroom. Thus, it is inappropriate and misleading for the first verb phrase of the sentencing remarks to be the judge saying that she has to carry out the sentencing. This is compounded when later on the judge again indicates that she must sentence him.

The issue here is not one of the literal dictionary meaning, but rather the framing and context (and as ever in law, the framing and context are far more important). Short sentencing remarks have a grammar about them whereby the position and prominence of words indicates their meaning and importance. The fact that in both the operative parts of the judgment, in the first and last paragraphs, Tipples J repeatedly reminds the reader that she is obliged to do something reads (entirely falsely) like the judge regards sentencing as a chore, or as if she is unwilling to confront the convict and say I will sentence you. The judge is not the prisoner of the jury&apost;s verdict, nor the blind servant of Parliament. (Quite rightly the statue of Justice atop the Old Bailey is not blindfolded) Further, the additional words resemble the well-established device in English for avoiding confrontational syntax via circumlocution. I do not think for a moment that any of this reflects any sentiment actually felt by Her Ladyship, but that is largely irrelevant. It is imperative the public, in the rare glimpse at the judicial process these highly publicised hearings afford, have the utmost confidence in the system of criminal justice and sentencing. Venables involved sentencing a man to what in effect will be a whole-life term, given the defendant&apost;s advanced age at sentencing. There must be no distancing or separation between the judge and the sentence she carries out. In particular, it was, with great respect, not entirely appropriate for Tipples J to first point out that the sentence is fixed by law and only after saying it is the proper sentence. There are certainly (we hope) rare cases of manifest injustice where it is appropriate for a judge, in protest, to note that their hands are tied by Parliament&apost; fixing of the sentence for murder. However, as this was a case where the judge agreed the sentence was appropriate, what purpose does pointing out that the law requires her to impose the sentence she in any event thinks just serve?

In the end, the simplest sentencing remarks are best, not those which position the judge as functionary or distract from her awesome task. Distractions such as these ought to be avoided

Post-Script

At the very end of the sentencing remarks, Tipples J lists the counsel in the case. This, ideally, would have been done at the beginning, so that references to counsel in the remarks can have some more context. The greater problem is that Tipples J lists the respective counsel as appearing for the Prosecution and x for the for the Prosecution (bold in original). Ideally, defence would be Defendant (counsel appear for a natural or legal person and make a defence on their behalf). Equally, by virtue of longstanding convention, the Crown is always to be used metonymically for reference to the prosecution in criminal cases. All prosecutions, including private ones, are brought in the name of the Queen, and thus (much as the defendant is the client of the defence counsel), Her Majesty the Queen is the client of the prosecution counsel (who are, in one, albeit silly, sense, all Queen&apost;s counsel pro tem).