The Bread Knife of Legal Reasoning

A casual tweet of mine about the Oxford vs Cambridge stabbing story gained unusual prominence (for a tweet of mine) and most of the people I have bumped into have wanted to talk about it. The story of the judge giving the student a second chance captured the imagination, or prejudices, of a great number of people it seems. The guts of the story are here from the Guardian story linked above:

Aspiring heart surgeon Lavinia Woodward, 24, punched and stabbed her boyfriend during an alcohol-and-drug-fuelled row at Christ Church College. She admitted unlawfully wounding the Cambridge University student, who she met on the dating app Tinder.

Judge Ian Pringle QC, sitting at Oxford crown court, said he would take an “exceptional” course and defer sentence for four months, hinting that Woodward will not be jailed because of her talent. “It seems to me that if this was a one-off, a complete one-off, to prevent this extraordinary able young lady from not following her long-held desire to enter the profession she wishes to would be a sentence which would be too severe,” he said.

A typically careful, lawyerly response to the story was posted by @secretbarrister. You can read it here and the comments are worth a look. It carefully rehearses why, on the facts as known, it is probably within the judges powers to order a suspended sentence once the judge actually comes to sentence the defendant (the sentencing has been deferred, for reasons which that post similarly explains).

Whilst the post admits that acting within the sentencing guidelines (when it happens) does not necessarily mean the sentence would be untainted by biases, I can’t help think that Secret did protest a little too much when arguing that, “Mercury scoots in with a message of justice gone wrong”. The Guardian produced what looks like a fairly straight reporting of the story, for instance. The judge himself said the case was exceptional, and –if accurately reported – also offered the defendant’s continued medical career as justification even though the defendant’s counsel acknowledged that her conviction would probably prevent that. Of course, it may be right that the Guardian picked this story up because the student was attractive, or a member of the elite caste, but it is also possible – given what we know about human decision-making – that the judge was similarly influenced by those or by the other social signifiers in the case. As Secret Barrister makes clear, we do not know what really influenced the judge but what we perhaps ought to acknowledge is, that however one tells it – it is a bloody good story.

My point is that defending the judge as potentially acting within the guidelines is really a rather minimalistic defence. Patting an irritated public on the head and saying, you don’t understand the law sweetypops doesn’t get you very far. That irritated public might not unfairly interpret that as saying, so potentially the law does not prevent these kinds of biases flourishing? Reason giving in accordance with rules is not much of a restraint in cases such as this: the factors at play are too malleable. We simply do not know, as Secret acknowledges, what impacted on the judge here. The law does not actually help much, if at all, with the central question this case raises.

Interestingly enough social scientists have from time to time studied sentencing and when they do they have tended to show evidence supporting the kinds of concern which Secret is trying to half-rebut here (class biases, race biases). The best study of its kind that I am aware of was Roger Hood’s on Race and Sentencing. It suggested, but of course could never prove, at least indirect discrimination in sentencing decisions. The senior judges went a little beserk, I am told, on being handed the handed evidence. When QASA was being considered, judges were going to assess advocates and I suggested that such judgments should be monitored carefully and – if possible – quantitatively to keep an eye on the quality of those decisions. It met with outrage in some judicial quarters and I lost the argument on the basis that it was inappropriate to subject to judgments of this kind because it would undermine their independence, and respect in them. All I will say about that is sometimes judges are a little bit Trumpian, albeit in a refined kind of way, about criticism. The decisions could be moderated it was argued. Data on their judgments risked undermining their independence (scrutiny of advocates did not). Moderation meant decisions could be reviewed and reasons could be given as to why the original judgements were okay (or not). The key question that everyone would have asked had the system gone ahead, and especially the advocates would have asked, and with good cause, would be who were the moderators? Not, will the judges be able to justify their decisions within the rules.

So my point is this, in the absence of a better evidence base, it is perfectly proper to raise questions about judgements such as these with evidence, and it is perfectly proper to rebut such questions with evidence; but seeking to neutralise arguments on the basis that the law has been followed is not much help, especially where it is not being alleged that the law has not been followed. It’s the discretion that is the issue here, and how it is applied.