Thursday, 19 May 2011

Ken Clarke's Mistake was not being Brave Enough

Ok - I should say this before I start. For all his faults in policy terms, I cannot help but like Kenneth Clarke. In an age where everything in politics appears to be sterilised and sanitised, his 'straight out of bed appearance' the hush puppies, real ale and cigars are like a throwback to the days when parliamentarians were allowed to say things that were contentious, even controversial. His choice of words is not always exemplary, but to me this is a sign that Ken is human, real and has not pre-rehearsed his answers in interviews. Were someone to give him a pager instructing him of the 'party line' at any given moment, one can imagine his first move would be to throw it in the trash can where it belongs.

However, there appears to be a section of the population calling for his head on a stick. His view that some cases classed as rape are significantly more serious than others has provoked a reaction from some that borders on hysteria. When BBC radio 5 journalist Victoria Derbyshire questioned him on the subject and then stated "but rape is rape", Ken's reply of "no it's not" appears to have been the root of all of the trouble he has experienced in the last 36 hours. At Prime Minister's Questions yesterday, Ed Miliband stated "the justice secretary should not be in his post at the end of today". Well you can't blame an opposition party leader for attempting to score a cheap political point, but the ability to debate subjects rationallly and away from the 'have you got kids?' emotional blackmail that clouds many topics appears to have disappeared from our political discourse.

Let me present you with two hypothetical scenarios. One involves a man who follows a woman home through a park and pounces on her. This, we would all agree, is pretty clear cut. The other concerns two young people dating in the last year of high school. one of whom has just turned sixteen and the other who is about to do so. One of their parents are out. They split a bottle of wine, one thing leads to another and they have consensual sex. The parents of the fifteen year old return home to find them in bed, and one of them reports it to the police. In the eyes of the law, the aggrevating factors may differ, but the sixteen year old who may be days older than his partner has potentially committed exactly the same offence as the man who followed the woman home in the first scenario.

Clarke was right when he said that one was significantly less serious than the other, although his clumsy use of the term date rape, which is something completely different, did not help his cause. The reality is that the two stories just laid out are completely different, yet can be regarded as precisely the same in technical terms by the current law. In one, both participants consented while in the other one clearly did not. In one violence was used while the other was anything but violent. I'm normally loathe to introduce new ways of criminalising people to the statute book, but a significantly lesser offence of 'consensual sex with a minor' would go a long way towards ironing out this glaring anomoly.

For those with concerns, some sort of 'Romeo and Juliet' age differential between the two people involved could be applied to state that this is where the lesser charge may end and where a more serious one enters the equation. Had Kenneth Clarke put a proposal like this on the table, then he would no doubt have incurred much greater wrath from the more hysterical among the general population, but he would have acting with immense courage and, in my view, equal degrees of common sense.

Maybe someone in Conservative HQ had a word with him, but by the afternoon he was stating that "any case of rape is a serious case and if I gave the impression I thought otherwise I will put this down to ill-chosen words". No Ken, show some balls, you were right the first time. Some cases currently classed as rape really are the square root of nothing compared to others - so much so that they need to be treated as something less serious in the eyes of the law.

The other point that this of course brings up is the fact that mandatory tarriffs for a specific offence, which were brought in to 'help' judges, have resulted in more legal anomolies and not fewer as was the stated intention. Just as the current application of the law in this area does not take account of the nuances of each individual case, we end up with situations where judges have 'no choice' but to send people defending their property and their loved ones against intruders to jail. The ability of the man at the bench to act independently and with a degree of common sense has been slowly eroded like so many things by years of statist interference and politicians looking to curry favour with the Daily Mail tendency. This drip, drip effect has also enabled judges looking to make politically motivated decisions to hide behind the existing legal framework.

And another thing for us all to consider - we cannot have it both ways. Many people sick of politics call for MPs and ministers who speak plainly and with a degree of spontaneous honesty. Having asked for this, they cannot then howl with a contrived sense of outrage when a member of the government does so and dares to say something they profoundly disagree with. Like the rest of the pissed off and disenchanted, I'm sick of the two generations of politicians who have treated the rest of us like children. However, this is a two way street, and when someone like Ken Clarke decides to engage with us as adults, it is up to us to respond as such. There will no doubt be many reading this who disagree with my final analysis which comes down firmly on his side - that's cool, and it's why we have comments on here, but let's be grown up about why we disagree with each other.

On the policy of increaing the discount for an early guilty plea that came out of this, I'm not entirely sure whether or not it's the right way to go. While understanding the reasons for doing this in some rape cases, to prevent the victim from the ordeal of giving evidence, one needs to remember that excluding murderers, this would apply across the board to all offenders, many of whom need to be imprisoned for many years for the safety of the general public. On balance, I'd suggest that honesty in sentencing, meaning that the sentence prescribed by a judge is what is actually served by the offender, would go a lot further towards restoring confidence in the system than what Ken is proposing.

However, regardless of whether I agree with him on everything or not, I'm grateful that for now we still have the occasional politician like Ken Clarke who is prepared to say what he thinks, regardless of whether or not it leads people into potentially uncomfortable territory. I'm gonna miss him when he's gone and I suspect many will miss him far more afterwards than they realise.

1 comment:

  1. Many people sick of politics call for MPs and ministers who speak plainly and with a degree of spontaneous honesty. Having asked for this, they cannot then howl with a contrived sense of outrage when a member of the government does so and dares to say something they profoundly disagree with.

    They are two different sets of people. The former are the normal general public. The later are single issue groups and publicity seeking organisations with people seeking offence at the slightest opportunity.