Interpreting the Politics of the Judiciary: The British Senior Judicial Tradition and the Pre‐emptive Turn in Criminal Justice

AuthorHarry Annison
Publication Date01 September 2014
Date01 September 2014
ISSN: 0263-323X, pp. 339±66
Interpreting the Politics of the Judiciary: The British Senior
Judicial Tradition and the Pre-emptive Turn in Criminal
Harry Annison*
This article presents an interpretive politics of the judiciary, arguing for
the value of interpretive political analysis in understanding develop-
ments in case law and judicial activity. It sketches out a senior judicial
tradition, which is argued to guide but not predetermine the actions of
the British senior judiciary. A case study, the senior judiciary's
response to the Imprisonment for Public Protection (IPP) sentence, is
presented, drawing on case law, extra-judicial speeches, and interviews
with five serving or retired senior judges. It is argued that this
demonstrates the senior judiciary to be politically attuned actors, often
highly sensitive to the broader context, while equally determined to act
with fidelity to the law and the responsibili ties inherent in an
independent, impartial judiciary. The IPP case law suggests that the
senior judicial tradition, and its inherent tensions, limits the extent to
which the senior judiciary feel equipped to oppose the `pre-emptive
turn' in criminal justice.
Over the past fifty years, scholars such as John Griffith,
Alan Paterson,
David Robertson
have dismantled the long-standing orthodoxy that the
judiciary engage in neither policy making nor politics. This article proceeds
*School of Law, Southampton University, Highfield, Southampton SO17
1BJ, England
This work was supported by an Economic and Social Research Council 1+3 Studentship
(grant ES/GO10307/1). I am grateful to Ian Loader, Nicola Lacey, Lucia Zedner, Andrew
Ashworth, Zelia Gallo, participants at the ESC Working Group on Sentencing and Penal
Decision-Making, September 2013, and the anonymous referees for comments on an
earlier draft.
1 J.A.G. Griffith, The Politics of the Judiciary (1997).
2 A. Paterson, The Law Lords (1982).
3 D. Robertson, Judicial Discretion in the House of Lords (1998).
ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School
from an acceptance of Griffith's central claim that judges are political actors,
in the sense that as `part of the machinery of authority within the State . . .
[they] cannot avoid the making of political decisions'.
Indeed, the case
study presented below is argued to demonstrate that the British senior
judiciary are thoughtful participants in British politics, seeking to affect the
course taken by criminal justice and sentencing policy.
This article draws upon the work of Mark Bevir and Rod Rhodes
propose an interpretive politics of the judiciary; a theoretical and methodo-
logical framework which is capable of respecting British judges' genuine
fidelity to the law, while recog nizing their role as politica l actors.
Interpretive approaches encourage us to explore the nature and influence
of meanings, beliefs, and practices. We are compelled to take seriously the
ways in which political actors `make sense of their world'.
The article sketches a senior judicial tradition (SJT), `a set of theories,
stories, and associated practices people inherit that then forms the back-
ground against which they hold beliefs and perform actions'.
It is argued
that this tradition promotes `responsible' behaviour, seeking to shore up
existing administrative systems and to maintain the standing of the senior
However, it can be seen to legitimize, to a limited extent, judicial
efforts to mitigate `bad law'.
While encroachment into the policy-making
arena is approached with extreme caution,
it is not entirely illegitimate.
The legal judgments relating to the Imprisonment for Public Protection
(IPP) sentence are then explored through this interpretive lens. The coher-
ence of the case law ± oriented around two central issues and involving the
High Court, Court of Appeal, and House of Lords ± is one factor which
makes this a valuable case study. A second is the access obtained to
members of the senior judiciary: this article draws on, among other things,
interviews conducted with five relevant serving or retired senior judges. This
case study is argued to show relevant members of the senior judiciary to be
careful, responsible, and reflective political actors.
The judicial responses to the dilemmas posed by the IPP sentence are
explored, and the relationship between these responses and the SJT dis-
cussed. We see that the judgments and other judicial activity were motivated
by concerns that the IPP sentence was disproportionate, liable to lead to
injustice in individual cases, and to cause significant problems for the penal
4 Griffith, op. cit., n. 1, p. 293.
5 M. Bevir and R.A.W. Rhodes, Interpreting British Governance (2003).
6 R.A.W. Rhodes, Everyday Life in British Government (2011) 17.
7 M. Bevir, `Interpretive Theory' in The SAGE Handbook of Governance, ed. M.
Bevir (2010) 58.
8 A. Gearey et al., The Politics of the Common Law (2009) 77; Robertson, op. cit., n.
3, p. 400.
9 N.G. Fielding, `Judges and Their Work' (2011) 20 Social & Legal Studies 1.
10 K.D. Ewing, `Judiciary' in The Oxford Handbook of British Politics, eds. M.
Flinders et al. (2009); Gearey et al., op. cit. n. 8, p. 91; Griffith, op. cit., n. 1.
ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School

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