Paul Firth: Make the law plainer... and leave it unchanged for a while

IT is more than 35 years since I first arrived to work as a legal advisor to the lay justices at Leeds Magistrates' Court. But I still remember with great affection and respect one particular chairman who, upon reading a report written by a Probation Officer, asked for my advice.

"Mr Firth," he said. "What does he mean by 'the defendant has a tendency toward recidivism'?"

"Well, sir, I think he means that he keeps on committing crimes."

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"So why didn't he just say so?", asked the chairman before moving on to passing sentence on a defendant who was supposed to be able to understand what the Probation Officer had written about him.

That little exchange has stuck with me as an invaluable lesson about our criminal justice system. From that day on I was determined that, as far as the courtroom language would allow, I would indeed "just say so". There was one occasion in a Lancashire court when I told a particularly nasty offender that there were no words I was allowed to use in court to describe him. The local paper next day sympathised and used a few of their own.

For the reasons I have just given, if I had that golden opportunity to change one thing about the law, I would make it more plain, more readily understandable for the ordinary citizen in whose name the law is created.

Another lesson I learnt was that there is a long and proud history in what we, lawyers, call the common law. That is to say that, alongside all the legislation enacted by our politicians, there are many precedents set by the higher courts, most of which help to interpret those statutes. I cannot pretend the law is simple or can be made readily accessible in all areas. That is no reason for not trying.

Ten years after that Leeds exchange, I was working in Manchester. I was asked to do some work for the Law Commission, the body that takes a non-political look at our laws with a view to revising and improving what is on the statute books. Our little group worked for hours on codifying the law – trying to find all-inclusive and comprehensible definitions of the most common legal terms, so that they could all be found in one place. Readers might find it hard to believe that a word like "recklessly", used in a range of offences, can mean different things depending on which Act of Parliament is being interpreted.

Even more surprising is the conclusion of the Home Affairs Select Committee of MPs that our gun law "is a mess" and "needs to be simplified". Apparently, even those charged with enforcing it struggle to understand the law. What chance the rest of us? And remind me who placed this "mess" on the statute books?

The one area I would start on today would be sentencing. It ought to be easy to put all the possible sentencing powers into one Act of Parliament and set them out in a form that doesn't need a lawyer's training to understood them. But even the judges in the Court of Appeal sometimes have to say that sentencing is too complex and that some laws conflict with others.

Let me use an everyday example. If a defendant is sentenced to three years' imprisonment, how long he will actually serve is dependent on many factors. The only certainty is that he will not serve three years. There will be automatic – yes, automatic – release no more than half way through the sentence, if he hasn't already been freed on an electronic tag or some other early release scheme.

I would want the sentencing laws to be so plain that the intelligent reader would look at the report of the case in the Yorkshire Post and know with certainty what the sentence meant. Who could have forecast, on the day when he was sentenced to 15 months for an offence of dangerous driving, that Naseem Hamed, the Sheffield boxer, would serve just 16 weeks? Even the judge who passed sentence would not have known.

One of the biggest causes of obfuscation is the persistent changing of the criminal law with insufficient thought for how some changes might affect existing legislation. The Lord Chief Justice, commenting last month reflected on "the happy days when criminal justice legislation came once every five years".

I would follow the Lord Chief Justice's lead and ask not only that the criminal law could be made plainer, but also that it could be left unchanged for a little while. Parliament cannot, constitutionally speaking, bind itself for the future. But couldn't they try, just this once, to do a job – simplification – that was non-partisan, valuable in its own right and, as such, worth leaving alone for a reasonable length of time? Then we might all understand what a judicial sentence really means.

Paul Firth is a retired district judge who sat in magistrates' courts in Yorkshire, Lancashire and Merseyside.