6th May 2022
Here is a tweet from the Lord High Chancellor and Secretary of State for Justice (and a qualified solicitor):
Tracey Connelly’s cruelty towards her son, baby Peter, was pure evil.
The decision to release her demonstrates why the parole board needs a fundamental overhaul – including a ministerial check for the most serious offenders – so that it serves and protects the public.
— Dominic Raab (@DominicRaab) May 5, 2022
It is a tweet that goes to one of the most important issues for any constitution: the respective powers of the executive and the judiciary in individual legal cases.
Tracey Connelly, as is widely known, was the mother of Peter Connelly, who died in 2007.
In 2008 she was convicted of “causing or allowing the death of a child or vulnerable person” – though not of murder or manslaughter – and she was sentenced to indefinite imprisonment for public protection, with a minimum term of five years.
It was reported that the then Attorney General considered referring the sentence to the Court of Appeal for being unduly lenient – but it seems no such referral was ever made, no doubt because the sentence was appropriate for the offence for which Connolly was actually convicted.
(Steven Barker was also convicted of this and another offence involving another child – and in respect of Peter Connolly’s death the sentence was for twelve years.)
That minimum of five years for Tracey Connelly expired in 2013 – and it appears she was released on licence from 2013-15 – but almost ten years later she is in prison.
This is because the Parole Board has, until recently, repeatedly refused her parole.
As the parole specialist Andrew Sperling explains in this useful and important thread, the test for the Parole Board is preventative rather than punitive:
The legal test is whether further detention is necessary to protect the public from serious harm. The revulsion or disgust people feel about an offence is not part of this test. It is about dangerousness at the time the case is considered.
— Andrew Sperling (@AndrewSperling) May 6, 2022
Sperling also helpfully sets out that the Ministry of Justice participated in the Parole Board’s deliberations.
The Secretary of State’s officials who gave evidence were a prison psychologist, a prison-based and a community probation officer and an officer from a new specialised probation dept, the National Security Division (responsible for supervising her in the community).
— Andrew Sperling (@AndrewSperling) May 6, 2022
Every one of the Secretary of State’s officials supported her re-release on licence with highly restrictive licence conditions. They had all concluded that she met the release test set by Parliament.
— Andrew Sperling (@AndrewSperling) May 6, 2022
The Ministry of Justice officials all supported Connolly’s release.
This is the Lord Chancellor’s very own department.
*
The Lord Chancellor even had the opportunity to challenge the Parole Board decision – and that was rejected.
In a fully reasoned and detailed decision, each of the Lord Chancellor’s grounds for his application were rejected.
The judgment even contained these remarkable paragraphs:
Ouch.
The Lord Chancellor – seriously – instructed counsel to say that the Parole Board had not taken proper account of his views, but he did not and could not identify what those views were.
That is embarrassingly bad.
*
The Lord Chancellor now wants to do things differently.
He wants to be able, as a politician and a minister, to personally overturn decisions of the Parole Board even when his own department’s officials support release.
Presumably this would be a power that would be exercised in those few cases that are selected by the media to be notorious.
*
What is the Lord Chancellor’s motivation for wanting a ministerial veto?
Here, again, Sperling is spot on:
Raab is saying that he is better placed to make this difficult decision than any of the Parole Board members who closely examined and interrogated the evidence.
— Andrew Sperling (@AndrewSperling) May 6, 2022
It is hard to escape the conclusion that Mr Raab is using this case for political reasons. He is part of a campaign which is deliberately focusing on lawyers and their application of the law.
— Andrew Sperling (@AndrewSperling) May 6, 2022
*
Let us look again at the extraordinary tweet of the Lord Chancellor:
Tracey Connelly’s cruelty towards her son, baby Peter, was pure evil.
The decision to release her demonstrates why the parole board needs a fundamental overhaul – including a ministerial check for the most serious offenders – so that it serves and protects the public.
— Dominic Raab (@DominicRaab) May 5, 2022
There is no sensible doubt that the cruelty in the Connolly case was substantial and warranted significant punishment.
And the court sentenced her for that offence.
A sentence which the government did not (and probably could not) challenge at the time as being unduly lenient.
The question is whether it is now safe for Tracey Connelly now to be released.
That question has been considered, with reference to relevant material, by the Parole Board, an independent body, with input from the Lord Chancellor’s own officials.
An answer was then reached by the Parole Board, which the Lord Chancellor could and did challenge in court, and the the Parole Board’s answer survived that challenge.
And the answer the Parole Board reached was ‘yes’.
*
The issue is not that the executive should not have any role in questions of sentencing and probation in individual cases.
The executive should and does have a role.
The executive can refer seemingly unduly lenient sentences to the Court of Appeal.
The executive can make representations and submissions to the Parole Board.
The executive can apply so as to challenge a decision of the Parole Board.
This is how the separation of powers should and does work in practice.
Punishments should not be at the personal fiat of any minister, even that of the Lord High Chancellor.
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To be honest, you could have called this post ‘The Lord Chancellor’s extraordinary’ and left it at that.
Like many politicians, Raab sees being in government as power rather than service and so expects everybody and everything to bend to his will.
It’s not necessarily the processes and procedures of government that we need to change, but the cultures.
The overhaul is a rewriting of the role of the parole board such that it has no role? The minister has the right to challenge now and he failed but he would like another bite of the cherry. He will also decide whether the decision was wrong anyway. Am I right?
I was agahst to read Raab’s comments yesterday – and quickly checked the original sentence and computed the time already served against a 5-year minimum tariff. It seems obvious, in this case (as in so many others), that the only court Raab is interested in is the “court of public opinion” (and then only that section which is in the thrall of the right-wing press). It is another heinous example of this government’s seeking to control the judiciary and probationary services for political gain.
It can be argued that the defrauding of the public purse (most recently, and strikingly due to the pandemic payments and procurements) has done more to “risk harm” to the public than Connelly ever did (which is not in any way to minimise the apalling treatment of her child). Indeed, contrary to the case of a serial rapist or psycopathic killer, it is hard to see that “the public” ever had much to fear from Connelly. Consequently, when her time had been served and the parole board was satisfied that she was as “rehabilitated” as possible, it was right to release her. It would seem that Raab is not motivated by ideas of justice, punishment and reform, but only by the (public) notoriety of the criminal.
The legal profession must surely shudder when the likes of Raab and Braverman are elevated to the highest political legal offices in the land!
‘It seems obvious, in this case (as in so many others), that the only court Raab is interested in is the “court of public opinion” (and then only that section which is in the thrall of the right-wing press). ‘
Do you suppose that this might have been, in fact, political theatre? An announcement made on the eve of the local elections, in an attempt to remind the “blue rinse brigade” that the Conservatives are the “Law and Order” party?
Or perhaps it was more self-serving, an attempt by the Lord Chancellor to attempt to flex his political muscle and attempt to cover up for the earlier failing, on his party, to respond when invited?
It sounds like Raab’s problem now is stemming from his failure to pay sufficient attention to this review when it was occurring. And having now had this brought to his attention he wishes to pretend that he objected to something of which he ought to have been aware at the time but was not. He needs to be pummelled in Parliament over this by the shadow minister.
This is another example of the problems caused by the IPP regime, in force for only 7 years from 2005 to 2012. For many, it has in effect become a life sentence, when the offences involved would never have merited one.
As I understand it, the offence for which Tracey Connelly was convicted now carries a maximum determinate sentence of 14 years (assuming aggravating factors adjusting upwards from a starting point of 9 years for the most serious offences of causing death, with high culpability). If she had been convicted in 2008 and given the heaviest sentence available under the current sentencing regime, and taking account of the time she was imprisoned on remand since 2007, she would be already be free with no supervision.
https://www.sentencingcouncil.org.uk/offences/crown-court/item/causing-or-allowing-a-child-to-suffer-serious-physical-harm-causing-or-allowing-a-child-to-die/
Dominic Raab is presented as a senior lawyer, but he practised for just six years before turning to politics. Just how much experience does Raab have of the criminal law? Does he really want politicians to have the power to keep people in prison indefinitely, as the whim takes them, instead of sentences and release being determined by the independent mechanisms of our criminal justice system?
Perhaps we need to revisit the problems caused by – as Lord Donaldson in 1995 described the intervention of Michael Howard to increase the tariff applied to the killers of James Bulger – a “politician playing to the gallery” by imposing “institutionalised vengeance”. That is not justice.
“Does he really want politicians to have the power to keep people in prison indefinitely…?”
I fear the answer to your question may well be, “Yes.”
While we would do well to remember that autocracy can be found at both ends of the political spectrum, it does seem fairly self-evident that the current administration, in so many ways, believe themselves to be not only above the law, but to have absolute authority to do as they please.
It is not hyperbole to suggest that we should all be both nervous and watchful.
The parole board might have actually taken into account the Lord Chancellor’s views had the Lord Chancellor offered any. What he wants now is to be able to offer his views too late, and for his views to be paramount. He is a first class tit and unfit to serve as a steward of justice.
Wasn’t the illegality (under the ECHR) of ministers deciding when to release people subject to indeterminate sentences the reason we have the present system? It’s hard to see how a ‘ministerial check’ wouldn’t be unlawful, like it was found to be before.
This lot are demonstrably anti-civilisation; regressive in the extreme. Raab would seem to want ‘justice’ meted out on the basis of emotional reflex, instead of professionalised rationality. I fancy he would’ve loved to have been a 19thC ‘gent’ happily sending undesirables to the County Asylum or Empire colonies depending on mood.
Another bully boy tactic
by Raab – as has been mentioned- his actual legal experience is very limited and yet he appears to think his position gives him the right to be the final arbiter onsuch matters, just like Johnson’s comments on the disastrous Rwanda plan.
No truer saying about this cabinet than “power corrupts but absolute power corrupts absolutely”
This kind of thing has been going on for over 10 years. For example, David Cameron’s repeatedly made unbelievable public statements about a person subject to a judicial process, asserting that he was guilty of terrible things and he would make sure he would be deported. That was concerning Abu Qatada al-Filistini.
For example, in 2012, ‘Mr Cameron told BBC News [after a court had released AQ on bail]: “I am completely fed up with the fact this man is still at large in our country, he has no right to be there, we believe he’s a threat to our country.”‘ https://www.bbc.co.uk/news/uk-20315479
I was astonished that a politician, the PM even, would say these things potentially prejudicing a legal case, in effect asserting that the defendant was guilty, and telling the public he would do everything including changing the law to get the outcome he desired. And if others were equally outraged as me, I saw very little evidence of it at the time. Perhaps I was looking in the wrong places.
Cameron wanted him deported because he wasn’t provably guilty of anything here. He had to get the law changed, and make a specific agreement with Jordan to exclude torture-derived evidence, to get him deported there. And then when he was deported and retried in Jordan, excluding torture-derived evidence, he was found not guilty on all charges. They had previously found him guilty using torture-derived evidence, which is why he got asylum in the UK.
I suppose Raab is just being a politician getting his story in before the DM/DT start ranting about the release. Normal, despicable but ignore.
I feel that in the public’s mind and in DT/DM headline writers interests prison psychologists and probation types are naive fools easily conned into letting people out who should stay in or perhaps easily cowed by the expense of keeping people in. Certainly there is no shortage of failure examples to feed this view. Probably this view is mostly unfair but too bad.
As for Ms Connelly, I suppose she won’t do it again especially being under long term and expensive supervision and newspaper nosiness. But common humanity tells us let her out, if anything she has been in too long already. What she makes of the rest of her life who knows – not much probably. I don’t look forward to her story in one of the rags and then ghost written for the pulp market. A tawdry tale Raab could not stay above.
“…but ignore.”
No. Sorry, but that is exactly the wrong attitude, in my view.
Instead of ignoring such a thing, it is better to engage critically and to explain calmly what is going on and why it is wrong.
Doing so may not achieve anything, but it is better than just shrugging, and it may even inform anyone who wants to know more before forming a view.
Just so. This is a game of power to the so-called govt. They bait continually. To ignore is to lose. We must not leave the terraces to the scg’s gaming.
Didn’t the Home Secretary have the power to make this sort of decision, but it was removed in the 1990s? Vague memory.
Possibly you’re thinking of Michael Howard’s attempt to have the tariff increased for the two children who killed James Bulger. This was vociferously supported by the Sun in particular, but Howard’s efforts were struck down by every court in the land, as well as by the European Court of Human Rights. No wonder Raab wants to limit judicial authority and to neuter the Human Rights Act.
The Home Secretary used to have the power to overrule the recommendation of the trial judge and impose a different (higher) minimum tariff in cases of life imprisonment.
In the Anderson case, the House of Lords and then the European Court of Human Rights ruled in 2002 that it was was contrary to the European Convention on Human Rights, and the law was changed by the Criminal Justice Act 2003.
The Home Secretary similarly decided to increase the minimum term for the killers if James Bulger (detained at Her Majety’s pleasure) but that was ruled unlawful by the House of Lords in 1997.
Compare and contrast. In 2001, Home Secretary David Blunkett refused to intervene in the releasing on parole of the two boys who killed James Bulger, in spite of an absolutely ferocious campaign by section of the press to keep them in gaol. Now Raab, as part of his campaign to neuter the Human Rights Act, stoops to exactly the same level as those newspapers. Utterly unfit for office.
Sounds like an amendment to the Something Must Be Done Act is being called for…
Should we not be critical of all interference by one branch of government in another?
Also, this week we had both the executive (Biden and Harris) and the legislative (Pelosi) issue warnings to the legislative (five Supreme Court judges).
“Should we not be critical of all interference by one branch of government in another?”
My vote would be yes.
But lets dig in to the potential answer to your question to see if we can figure out the ramifications. To start with, it is worth noting that the UK has adopted the doctrine of parliamentary sovereignty, meaning that the SCOTUK cannot overturn any primary legislation from parliament and has much more limited powers, for example through judicial review.
SCOTUK UK is composed primarily of 12 positions, as set out in the Constitutional Reform Act of 2005: one President, one Deputy President and 10 Justices. Any Judge of the Court not already peers are granted that enoblement, for life.
Justices are appointed by Her Majesty the Queen, on the advice of the Prime Minister, who receives recommendations from a “selection commission”.
That commission is made up of the sitting President, another senior but not Supreme Court justice, and one member each from the Judicial Appointments Commission, the Judicial Appointments Board for Scotland and the Northern Ireland Judicial Appointments Commission. A provision of the CRA mandates that at lease one member *cannot* be a lawyer.
Now, at this point I could iterate… describing the breakdown and appointments to senior positions at say the “Judicial Appointments Commission” and so on, but to be honest that might be misdirection thanks to my previous acknowledgement that the appointments to the most senior positions are based on recommendations from the sitting Prime Minister.
It might in theory be possible to completely disentangle these highest echelons of UK judiciary from Westminster politics, but to do so the most important element would be to deprive the PM of the ability to recommend SCOTUK justices to Her Majesty the Queen.
If there is a robust, transparent – and, most importantly, “non-corruptible” mechanism to all for the creation and maintenance of a completely independent judiciary, I would be all in favour. The challenge is immense, however, not least of which would be how to keep both judicial appointments and the implementation of justice completely apolitical.
Watching developments in the United States over the last 5-10 years or so, it is apparent that the moment a British Judiciary were to be granted completely autonomy from the rest of British Government, then Ministers in Whitehall – particularly the Lord Chancellor – would redouble their efforts to exert control.
If there’s a way past the political meddling, then perhaps the “sunlit uplands” do indeed lie ahead.
I’m afraid this is what we should expect from this government: mostly lightweights playing to the crowd, pursuing power and self-promotion over public service. But this tweet from Raab, not exactly known for demonstrating much in the way of intellectual nuance, and especially his challenge of the Parole Board’s decision, are beyond the pale. Either he is knowingly making statements that are at best disingenuous and at worst downright false or he is just plain ignorant of the law and legal processes he is criticising. Whichever it is, any PM with an ounce of integrity would fire him instantly. Oh, wait a minute, …
Ouch indeed.
Thanks for laying out what happened.
In my opinion Andrew Sperling hits the nail on the head when he writes,
‘It is hard to escape the conclusion that Mr Raab is using this case for political reasons. He is part of a campaign which is deliberately focusing on lawyers and their application of the law.‘
Recently Peter Foster (Editor of the FT) commented that it’s become very difficult to interview or report on the UKG gov because ministers deliberately troll whoever they talk to. He was specifically referring to Rees-Mogg’s testimony before a HoC Committee where he was deliberately provocative and frankly contemptuous of the committee.
Foster was in the room & realised that this was a performance for the Tory Party base.
A veteran US political commentator noted that the big reason Trump is so popular in the hardcore Republican voter base is that he “breaks all the china”. They are mad at their lot in life & and blame others for supposedly taking what they think is theirs and along comes Trump who sees this and goes around like a wrecking ball.
Raab is doing the same now, indeed when he blew off his engagement at the Bar association annual meeting and instead went to a village fair and tweeted a selfie of himself with two actors in fancy dress he was trolling the legal profession and in the most fanatical Tory party base it plays very well.
In his diary of the Brexit talks Michel Barnier describes Raab (then UK Foreign Sec) as thoroughly untrustworthy & also that he was ‘messianic’ – in other words quite mad.
Indeed, this is all the purest performativity. But don’t forget that, according to the Economist, he’s known in his own department as Five I’s: imperious, insular, idle, irascible and ignorant.
I generally try not to attribute to malice that which can be explained by incompetence but in the case of this government, well, let’s just say I’m starting to think it might not be applicable.