Editorial: Healthy for us when judges can speak up

A speech by the Chief Justice, Dame Sian Elias, last Thursday has prompted not the debate she intended, on criminal sentencing policy, but on a question of her right to offer a comment on public policy. She suggested, among other things, that rising rates of imprisonment might require early releases to avoid overcrowding. As soon as he heard her remarks Justice Minister Simon Power chided her for making them.

It seems he was not simply evading the substantial issues she raised. It seems he meant it. The Prime Minister has since echoed his sentiments. It appears to be the Government's serious view that judges should not speak on general policy. By the same token, politicians are often told they should not comment on cases that have been, or will be, decided by a judge. The token is called "comity", maintaining mutual respect, and like most principles it can be taken too far.

Both sides ought to take care when stepping into the territory of the other. Judges do themselves and their role no good if they are seen to be politically partisan. MPs can do somebody an injustice by making accusations in Parliament that cannot be answered or properly tested. But caution is not prohibition.

It is thoroughly healthy for the country that high-ranking judges can contribute to public discussion of subjects within their expertise. It is no less healthy that MPs should be able to bring to public attention a case that a court has handled badly in their view.

Dame Sian took sufficient care when composing her speech on penal policy last week. She could not be accused of partisanship since she was criticising trends in force since the mid-1980s, a period spanning four Governments, two from each side of the fence. It is a period in which criminal rehabilitation has been out of favour and sentencing has grown increasingly punitive, as well as more attentive to the suffering of victims.

The Chief Justice suggested that more than 20 years of punitive penal policy have not made communities any safer. The number in prison at any time almost doubled between 1985 and 1999. She cited research finding repeat offending worse among those who had been locked up for longer. Just as rehabilitation was found not to be making much difference to crime rates in the 1970s, incarceration has proven ineffectual since.

Since nothing seems to work for offenders, or improve public safety overall, more recent developments in criminal procedure have concentrated on victims of crime. The most interesting passage of the Chief Justice's speech was a suggestion that the focus on victims carries a risk to justice.

Criminal justice, she pointed out, was designed to replace private vengeance with public prosecution and impartial decisions. With victims included on proceedings that "detachment and public ownership" were at risk. "Courtrooms now can be very angry places," she said.

Many will reply that they should be angry places. But it is not necessary to agree with Dame Sian's views to value the fact that she has offered them. It emphatically is her place to speak out on public policy from a judicial point of view. The country ought to be told when popular policies of the moment call into question some principles of justice or fair procedure.

Judges, the people we ask to pass sentence on offenders, have to take a close interest on the efficacy of the sentences available to them and the facilities and resources for carrying out their directions. They should be able to speak out when they see deficiencies.

Governments would prefer that they conveyed such concerns quietly, to the Attorney-General, but they are not public servants. They hold an independent public office and when they speak out with care they use it well.