BY ALEX CRANSTOUN

When I think of the law, Lady Justice comes to mind, tall, foreboding and blind to the differences of those brought before her. Equality before the law is a staple of legal systems in the Western world. But is that really what we want? Do we want a regimented formula applied to every person who commits the same specific crime?On the face of the question, you probably said yes. After all, equality is the fairest system for everybody. Or is it? In April this year, Judge Jonathan Durham Hall QC was subject to a complaint to the Judicial Conduct Investigations Office in the United Kingdom for disagreeing with that sentiment.The complaint originated from a case where a survivor of sexual abuse stabbed her former abuser. The survivor was eight years old at the time of the abuse. For six years, she had lived with depression and paranoia after her convicted abuser was given a community sentence. This meant he walked directly out of court and back into her neighbourhood. She attacked him, then immediately handed herself in to the local police. Initially charged with attempted murder, her charge was downgraded to grievous bodily harm, to which she pled guilty. When her case was called for sentencing, she met his honour, Judge Durham Hall.Judge Durham Hall, after reviewing the case, declined to sentence the girl to imprisonment, instead opting for a two year Youth Rehabilitation Order - essentially two years’ intensive therapy - with supervision. His Honour then refused to order the girl to pay the mandatory victim surcharge that applies in the United Kingdom stating that “If anyone tries to force you [to pay the surcharge], I will pay it myself”. This statement led to the aforementioned complaint of lack of impartiality.Like Judge Durham Hall, we are capable of seeing the survivors’ point of view. The victim felt  failed by a justice system that allowed her convicted abuser to walk free without a prison sentence. Judge Durham Hall considered that the survivor had not received justice and illustrated his contempt for the circumstances with not only his personal comments but by ordering a minimal sentence for a serious criminal offence. Others felt that His Honour had acted unfairly by blatantly deviating from the prescribed punishment for the offence. These differing views led to the question; do we want Judges to adjudicate based on their personal moral values?This is not a novel question of law. In fact, philosophers have debated it since the classical period of Greece without agreement. Roughly split between the opinion that law is the tangible forms of law – statutes, contracts, precedents - and the opposing view that law is what is ‘morally right’, even if it does not align with the current law. Each side of the argument has merits.If your sensibilities are telling you that the law is strictly provided for in tangible forms (positive law), and moral considerations are irrelevant, consider the following. The Licensing Act 1872 (UK) states that it is illegal to be drunk in a pub. It is also currently illegal in the United Kingdom to import potatoes from Poland. Want something closer to home? Until 1986 it was illegal to have homosexual sex  in New Zealand and until 1993 you could legally discriminate against lesbian and gay people. To a contemporary mind, strictly enforcing any of these laws without a measure of discretion or moral consideration would be absurd and unfair.

"Until 1986 it was illegal to have homosexual sex  in New Zealand and until 1993 you could legally discriminate against lesbian and gay people. To a contemporary mind, strictly enforcing any of these laws without a measure of discretion or moral consideration would be absurd and unfair."

The use of judicial discretion is a divisive subject as it relies on the moral viewpoint of the adjudicator aligning with the individual or the public majority. While the public generally approved the outcome of the case decided by Judge Durham Hall - reflected in his lenient reprimand - it is starkly contrasted to public opinion expressed in relation to the Lavinia Woodward case.

"The use of judicial discretion is a divisive subject as it relies on the moral viewpoint of the adjudicator aligning with the individual or the public majority."

If the basic facts of the two cases are examined they appear the same; both involve a young female who stabbed their victim and pled guilty to their associated charge. The Durham Hall survivor received a conviction of grievous bodily harm and sentenced with a youth rehabilitation order. Ms Woodward has not been sentenced as yet but is not expected to receive a custodial sentence, instead completing a drug and alcohol programme. The two young women have both been on the beneficial side of judicial discretion, with the associated Judge labelled as biased or impartial.Examining the two cases with more depth the disparity appears. The Durham Hall survivor was a child of 14 years when she committed her offence. She has serious mental health issues that are arguably the direct result of her victims’ previous offending. Speculation suggests her offence would have been avoided if the justice system had provided an appropriate remedy to the initial offence.By contrast, Ms Woodward is a 24-year-old medical student at Oxford’s Christ Church College. During an argument with her boyfriend, she threw items at him and stabbed him in the leg with a bread knife. This was one of the multiple assaults Ms Woodward had inflicted. A self-confessed drug addiction and previous involvement in an abusive relationship were not the reasons for judicial discretion in her case. The Judge stated, regardless of the offence normally attracting a custodial sentence, the fact she was an ‘exceptional student’ and a conviction would hinder her ability to pursue a career as a cardiac surgeon, was reason enough for her to avoid one. The Oxfordshire Courts have since been the recipients of harsh criticism and accusations of class bias.What emerges from these two case examples is a perceived discrepancy in the exercise of judicial discretion. But are these two judges just responding to what their personal morality considers correct: compassion for the injustice suffered by a young woman, and the potential benefit to society of a redeemed brilliant offender. Or should we expect a strict impersonal approach that ensures equality of procedure, but not of outcome? I guess the debate continues.–The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The Equal Justice Project will not be liable for any errors or omissions in this information nor for the availability of this information.