It looks like the government’s proposal to allow longer sentence discounts for early guilty pleas is going to be scrapped.
The plan to increase the maximum discount from a third to a half of the total sentence had two motives behind it. Firstly it was designed to save the Ministry of Justice £130m. Secondly it was hoped it might ease the burden of lengthy, traumatic trials on victims, by giving criminals an incentive to plead guilty right away.
But the furore that seems to have killed off the policy was about neither economics nor justice. It was about words.
One Wednesday in May, Justice Secretary Ken Clarke went on Radio 5 Live to be interviewed by Victoria Derbyshire about the proposals. Derbyshire chose to focus on rape sentences, and very quickly they got into an argument about a specific point: the average sentence for rape and what that means for the shortest time after which a convict might go free. Derbyshire said (wrongly) that the average for rape was five years, a sentence that would see some rapists out of prison in “a year and a bit”. Clarke disagreed. He didn’t have the correct figure to hand, but he said rape sentences were typically longer than five years, and speculated that Derbyshire’s five-year figure must refer to certain cases that have led to shorter sentences, like some date rape cases and underage teenage sex.
This is where Clarke’s troubles began, as he began to draw poorly thought-out distinctions between some rapes and others. Clarke said he was using the word rape “in the usual conversational sense”, which according to him means that it involved force and violence. In the course of his waffling, he let slip the awful phrase “serious rape” (which will surely now haunt him forever) to refer to cases that might lead to longer sentences.
“Rape is rape, with respect,” said Derbyshire. “No, it’s not,” replied Clarke.
On that point, they’re both right. Rape is rape, and it’s important to make that clear in order to dispel the poisonous idea that some behaviour constitutes ‘asking for it’. But the circumstances are different in every case. Some instances are worse than others, and this is reflected in the sentences handed down.
But from then on, things got even worse for Clarke. A woman named Gabrielle Brown, herself a victim of attempted rape, called into the show and berated the Justice Secretary for considering letting rapists out earlier, telling the story of how her attacker went on to reoffend after being released. She began to cry.
The emotional exchange was quickly picked up by other media, and Clarke ended up spending most of the rest of the day trying to convince the public that he didn’t believe that some rapes were not serious. Ed Miliband called for Clarke’s immediate resignation.
Clarke has himself to blame for the mess he got in. He made his point badly, particularly by using the dreadful phrase “serious rape”. Furthermore, his idea of “the usual conversational sense” of the word ‘rape’ seems in need of revision, since the majority of rapes are committed by people known to the victim, in many cases their partners. He also got his facts wrong to imply that sex between a 17-year-old and a 15-year-old would count as statutory rape (which is only the case when the girl is 13 or under).
But he didn’t get everything wrong. He was right about the point that he was being asked about: sentence lengths. The average is not five years, it’s more like eight, and it was in trying to make sense of this erroneous figure that he ended up coming a cropper.
I’m no apologist for Ken Clarke, but does anybody seriously believe that he thinks some rapes are not serious? Is that what Ed Miliband thinks? Come off it. Clarke might be a Tory but he’s not Ming the Merciless. The only people who could have come away from this brouhaha with the impression that Clarke didn’t consider all rapes to be very serious, are the ones who didn’t listen to the interview, and just took the hysterical headlines that it generated at face value.
This was an argument about a man expressing himself badly when under pressure and faced with conflicting information. It was about him fumbling his words and getting some facts wrong. It wasn’t about sentencing. And it wasn’t about whether Ken Clarke thinks rape is serious or not. Some commentators have grasped this – Liberty’s Shami Chakrabarti, on Question Time, resisted the temptation to tear into the Justice Secretary, instead using the opportunity to make worthwhile points about the value of sentence discounts.
But Chakrabarti showed uncommon sense. In the main, the reaction to Clarke’s comments provided lots of heat and very little light – and it cost us a proper debate on why our justice system continues to fail rape victims.
Everyone will have their own view on sentence discounts, but if used properly in the right cases, they seem to me like a sensible way of minimising the pain for the victim. In fact, when Gabrielle Brown later met with Ken Clarke, she told the BBC that he “had a point” and that “the media storm occurred as a direct result of the language he used”.
“I accept his argument now that he’s been clearer,” she said. “I wouldn’t have gone on to suffer the trauma that I suffered if these proposals had been in place.”
Well, according to the BBC’s political editor Nick Robinson, “they won’t be”. The outcry over Clarke’s remarks has killed off the proposal completely. Meanwhile, if anyone has any suggestions for saving public money, reducing prison numbers and making trials less painful for victims of crime, answers on a postcard to Mr K Clarke, House of Commons, London.