The Court of Public Opinion

I read today of a woman, now a widow, who decried the lack of justice in the sentence given to a 74 year old pensioner who, through the ravages of age and clinging senility, mowed down said woman’s boyfriend while he was happily cycling. The pensioner received a three year driving ban (at the end of which an extended driving test is required) and a 12 month community order. This, perhaps understandably given that the ‘widow’ is but a fallible human, subject to the weakness of primitive emotion, outraged the bereaved mourner. Baying for blood she branded the justice system, like so many inarticulate laymen, a ‘joke’.

Now, whether or not this woman, shocked and distraught as she is, wanted the little old lady to crack rocks, I don’t know. However, her reaction is emblematic of a wider failing – not so much in the law or the legal system, but a failing of the court of public opinion, exacerbated by the press and a wilful misunderstanding of both the law and the facts.

The 74 year old killer pled guilty to death by careless driving, an offence defined under the Road Traffic Act 1988 as causing death “by driving […] without due care and attention, or without reasonable consideration for other persons using the road or place”. Already the case had been transferred from the Magistrates’ to the Crown Court due to insufficient sentencing powers.

Kennedy J, in handing down the sentence, said “I’m not sending this 74 year old to prison”. And rightly so. The distinction in sentencing and the reason for the mourner’s disapprobation, comes from the distinction in offences under the 1988 Act. The only relevant alternative offence for which Granny could have been convicted had the facts been sufficient to satisfy the test, is that of death by dangerous driving under s.2A, satisfied if:

(a)the way [she] drives falls far below what would be expected of a competent and careful driver, and

(b)it would be obvious to a competent and careful driver that driving in that way would be dangerous.

(2)A person is also to be regarded as driving dangerously for the purposes of sections 1 and 2 above if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous.

Assuming the vehicle had no patent defects, the test to satisfy is bipartite under sections 2A(1)(a) and (b) and, I’m supposing because her age-addled brain renders her incapacity only fleeting and infrequent therefore making her appear competent to the reasonable person otherwise than on the tragic day in question, she failed to satisfy section 2A(1)(b).

So Granny, by mistaking the accelerator for the brake, killed a guy. A terrible tragedy, one that would have even the most stoic relative balling tears of despair and spitting blood in anger. However, the justice system doesn’t exist to appease an individual’s emotions.

The case, or rather the ‘widow’s’ reaction to the case and the media’s presentation of the ‘widow’s’ reaction to the case, speaks to the heart of punitive philosophy. There are considered to be five fundamental reasons for punishment: restoration, incapacitation, rehabilitation, deterrence and retribution.

Since the OAP cannot give the poor woman her boyfriend back, restoration is not possible in this instance.

Incapacitation is exemplified, in our society, by imprisonment. Locking someone up so they can’t hurt anyone again. However, this is in the case that the convicted intended to hurt someone, and, by all estimations, intends to hurt someone again. Since Granny is just a confused senior with a discombobulated brain and no one is asserting that she’s actually a deranged killer practicing under the guise of senility, she never intended to hurt anyone. Therefore incapacitation would bear no practical fruit. There is no reason to lock her up.

Rehabilitation, in the form of education, does bear some relevance to the immediate case, and it is seen as a motivation for two parts of the sentence. That is the requirement to undergo an extended driving test to get back on the road once the old lady’s three years are up and the community sentence.

Deterrence is irrelevant in the sense of: what are you trying to deter? Other old people from overestimating their driving abilities? Have you met an old person? They’re more stubborn than a toddler with a matchbox car that mummy just has to buy him. However, deterrence can be relevant when it comes to the old lady, i.e. deterring her from committing the crime again. Prevention. Again, this is borne out by the sentence. She is banned from driving for three years – unless she causes death by Zimmer frame, she’s pretty well prevented from killing anyone on the road.

Now, retribution is what the ‘widow’ seeks. Indeed, retribution is generally what the court of public opinion seeks when it feels a wrong has been done to someone ‘just like them’. Retribution is punishment for punishment’s sake, it is revenge. Retribution, in our age of enlightenment and a profound understanding of the human mind, is a hangover from our primitive days. When our laws were guided, quite heavily, by the morals of a vengeful God, retribution was morally justifiable – indeed, necessary.

However, we have since moved on. And to seek vengeance on a little old lady, no doubt traumatised (though, admittedly, not as much as the devastated ‘widow’) and shocked, is a desire we must stem. We must contextualise the event, we must put aside emotion, since law is emotionless, and we must think clearly and with clarity and with a view to enabling societal progress.

This might seem rather grandiose, and perhaps overblown, in relation to a driving accident – one of a million like-cases. However, this misplaced desire for retribution and this reversion to primitiveness pervades our politics and our rhetoric, as well as that of our media and our Governments. And in doing so it slows our cerebral, societal, moral and personal progress from mere ape-descendants to enlightened human beings.

The sentence, in my view, was an entirely sensible one. It sought to limit the risk this elderly lady could impose, while stopping at being draconian. It gave closure to a grieving ‘widow’, without being overly retributive and succumbing to primitive desires. It served a purpose and was logical.

The leap, however, for the court of public opinion (indeed, the reason I chose this as the case study) is to be had in transferring the sympathy and moderacy we may project onto this case (that of a sympathetic old woman caught up in a terrible accident) to other, prima facie, less understandable or less easily identifiable cases.

We must promote a punitive philosophy, a societal discourse and a political outlook that seeks to understand, rather than to condemn. Law doesn’t only govern us or regulate us, it guides and gives voice to our morality, it represents our collective thinking. The law is a window into the ideology of a people. We should, rather than allowing the media to distort our view of judgments by deliberately blaring shocking and polemic headlines branding the legal system, in simultaneous echo, a ‘joke’, force them to be transparent as to the content of a judgment – the intricacies of the law involved in interpreting the facts. Perhaps this can be achieved by mandating links to the judgments to which newspapers refer.

We must first, though, shake off the shackles of primitive urges and allow ourselves to be enlightened by maintaining clarity and understanding. In order to achieve further progress, this is true of a legal system, it is true of politics and it is true of us as individuals.