The Burglar's Gamble

Last week the Sentencing Council published a new consultation on the sentencing regime applicable to offences of burglary. The consultation invited responses on the Council's proposals to increase sentences depending on the consequences of the burglary, particularly the actual harm inflicted on the victim. Sir Brian Leveson, Chairman of the Council, summed up the new approach by stating that it would ensure 'that the impact on victims is at the centre of considerations about what sentence should be passed on a burglar.'

The Council's latest intervention represents a continuation in thinking in criminal justice policy apparent over the last 10 years with victims placed at the forefront of political rhetoric. Successive Home Secretaries have hit the airwaves promising to make victims the most important players in the criminal justice system. Much of the reform has been largely symbolic, such as the unenforceable Victims Charter, and victims have gained few new rights despite the political posturing. This suggested change, however, may do more to improve the standing of victims when it comes to the consequences of offending.

Is this really right though? For those of us who would like to see tougher sentences across the board, any change that increases the punishment for people who commit burglary is to be welcomed. However, there are wider considerations that make this a problematic development in the theory of sentencing.

Traditionally, sentencing has concentrated on the culpability of offenders, rather than the actual harm caused. This is why attempted murder is treated largely the same as murder itself. Society recognises that failing to commit an offence - whether by luck or bad judgment - does not extinguish the offender's culpability. That person is as morally responsible as if he had succeeded in committing the crime.

Applying these principles, the sentence for a burglar should be the same whether or not his victims are upstairs asleep, downstairs watching TV, or out of the house. The burglar's act and mental state are the same in each case. The presence or absence of any victim is a matter of simple luck. Under the Council's new proposals, however, a burglar who frightens victims inside a house will receive a markedly longer sentence than a burglar who has the happy fortune of finding his house unoccupied.

This reflects a general trend towards compensating victims for harm caused. I once witnessed a case where a drunk driver drove from Cambridge to Huntingdon as high as a kite, swerving around moving vehicles, riding the kerb, and driving over roundabouts. Amazingly, his tripped out journey resulted in no casualties or damage. As a result he was given a suspended sentence. Just imagine the sentence he would have received had he hit a child. What would be the principled difference? His culpability would be the same in both cases and sentencing ought to recognise this.

While I am always satisfied, therefore, to hear about offenders being dealt with more severely, I have a profound objection to the current obsession with consequence rather than culpability. I see no reason why a burglar who finds his victim in the house should face different treatment to the burglar who guesses right and discovers an empty house. Both are serious acts warranting significant punishment. To punish one but not the other is a bizarre social choice.

Opening Up a Can of Worms

The news that Osama Bin Laden has been killed by US Special Forces in a fire fight in a Pakistani town will be greeted by celebrations across the Western world. Already reports are emerging of Americans donning 'we got him' T-shirts and waving the stars and stripes. I must confess that I'm not in such a celebratory mood for the following reasons.

Firstly, if the West is to prevail in the war against terror, it is essential that it retains some form of moral legitimacy. The sight of Americans and Europeans dancing around the camp fire after the murder of a Muslim in a Muslim country is not likely to go down too well with those already contemplating embracing radical Islam. Wouldn't it be better if we demonstrated quiet dignity in moments like these? Western moral standing, already weakened by Iraq, cannot afford to suffer such damage.

Secondly, there is a very real chance of revenge attacks. Many people have been questioning for years the extent to which Bin Laden really controls Al-Qaeda. According to some observers, his death is unlikely to have much of a disruptive influence on the planning of Al-Qaeda in Asia and the West. The closed cell nature of Al-Qaeda's operations, where only a few operatives know the nature of what they are working on, means that the loss of one person is not likely to be terminal. What it will do, however, is lead to massive calls for revenge attacks in Islamist circles.

Thirdly, the circumstances of Bin Laden's death raise important questions about Pakistan's role in the war on terror. Bin Laden was killed in a town not far from Islamabad, which included an elite military training centre of the Pakistani military. This is a far cry from the remote border caves in which he has supposedly been hiding for years. How the Pakistani intelligence and armed forces can not have known about this is a matter for speculation. How long has Bin Laden been in Pakistan? These questions will be repeated by those already critical of Pakistan's reluctance to fully engage with radical elements in its population.

I'm not so sure that making Osama Bin Laden a martyr was really the best tactical approach to adopt in the war on terror. Regardless of its strategic implications, it makes me upset to see that people in the West cannot rise above celebrating the murder of a human being in moments like these, even that of a human being as evil and despicable as Bin Laden. Despite not being a Christian myself, I think those who profess to follow that religion would do well to remember this Proverb: 'Do not rejoice when your enemy falls. And do not let your heart be glad when he stumbles.'