What Ken Clarke should have said

The Ken Clarke media storm continues. But, talk to lawyers and they complain that the Justice Secretary did not have sufficient command of his brief to redirect Victoria Derbyshire’s line of questioning. There was one particularly illustrative example when she said:

“(The starting points) for single offence of rape by a single offender are 10 years’ custody if the victim is under 13, eight years’ custody if the victim is 13 but under 16, and five years’ custody if the victim is 16 or over.”

Those numbers look a little light and they create the impression that the justice system is soft on rapists. Clarke should have countered that Derbyshire’s example lies at the very bottom of the CPS’ sentencing guideline scale. Rape is rape, but the CPS recognises numerous ‘types of activity’ which attract different sentences. For example, at the top of the scale, the repeated rape of one or multiple victims carries a starting point of 15 years’ custody. Then the length of sentence is varied according to mitigating or aggravating circumstances. In the case of repeated rape, the sentence range stands at 13-19 years’ custody. Courts can also issue very stern sentences (often life) to repeat sexual offenders under the Dangerous Offender Provision. Clarke never mentioned these balances.

Neither did he say that plea bargaining (sentence discounting) is subject to judicial discretion, in order to protect victims. Currently, 33 percent is the maximum that can be shorn from a sentence if a guilty plea is entered at the defendant’s arraignment; thereafter, judges reduce the discount as the trial date approaches. The victim of attempted rape, who called in to the show, said that her assailant “pleaded not guilty at every single court appearance” before the trial began, then “first day of trial at the Old Bailey he pleaded guilty. He got a third discount off.” The justice secretary might have asked why the judge was so lenient with the discount, or at least promised to look into it.