Tony Martin should never have been sentenced to life imprisonment. Punishing the Norfolk farmer in this way is an outrage. It offends any sane person's instincts about the meaning of justice. On the spectrum of heinous murders it places Martin at the same point as the Yorkshire Ripper, which is plainly unacceptable. All murderers do not weigh the same in the scales of human wickedness, yet we discover that they are equal before the law. Something very wrong is happening to a man who went too far, with a terrible result, in defending himself and his property. It is obvious, therefore, that politicians should be heard from. They have a duty to say what they would do not only for Martin but for others in similar situations. William Hague had a go at doing that yesterday. Very naturally there has been an outcry, and you don't have to be a Daily Mail reader to experience the indignation that produces it. But one does need to take a little care. Ends and means bear some examination. The very same political instincts that drive Mr Hague to lash out in all directions are the ones that sent Martin to jail for life. Politicians, especially Tory politicians, are accomplices before the fact of the outrage that has now occurred.  For Martin got his life sentence because the judge had no option but to impose it. Ever since the abolition of capital punishment, life has been mandatory for murder. This was the political sweetener that got rid of the gallows, a necessary reassurance to the public at that revolutionary penal moment.  But as the gallows receded, the weakness of the mandatory life sentence became clearer, precisely for the reason that it fails to distinguish between the Ripper and the farmer. By lumping all murders together, it reduces recognition of what is truly heinous, and nullifies the grades of stigma between a desperate act of domestic violence and contract murders by a professional killer.  Over the years, there has been a build-up of studies and reports with detailed argument showing that life should be a maximum and not a mandatory sentence for murder. It would not only be fairer but more effective. The Butler committee said so in 1975, the Advisory Council on the Penal System in 1978, the Criminal Law Revision Committee in 1980, the parliamentary all-party penal affairs group in 1986, a House of Lords select committee in 1989. All lord chief justices in living memory have thought that a judge was no less qualified to exercise discretion in murder cases than in others, and to determine a fixed sentence appropriate to the case - retaining life only for the very worst.  If this collective wisdom had been followed, Tony Martin would now be serving a proper and not a repugnant sentence for murder. But the wisdom was spurned by politicians. Although it acquired critical mass in the Tory years, no home secretary would listen to it. David Waddington said removing mandatory life would "greatly damage public confidence". Kenneth Baker said that all murder, whatever the circumstances, was more abhorrent than any other crime. Douglas Hurd, an aspirant reformer, said it was impossible to get away from the politics of it. None of them paid attention to their colleague, Lord Chancellor Hailsham, who scorned the mandatory life rule and what he called the "hairy heel of populism" that made it apparently untouchable.   The Martin case could be used as a unique moment to turn the hairy heel to advantage. Isn't it the best proof yet available of how mandatory life sentences can offend popular instincts? Couldn't the thorny issues of what is appropriate self-defence and what is reasonable force be dealt with, after the jury has spoken, precisely by the judicial discretion that the mandatory sentence takes away? If, as the tabloids and the Tories scream, a better balance must be struck between wicked criminals and overheated householders with a gun to hand, isn't reform of the blanket life sentence by far the most sensible way to do it?   Not to William Hague. Nor to Jack Straw - though abolishing mandatory life is another penal reform Labour once favoured but now rejects. Instead Hague finds the conventional populist appeal irresistible, and overlooks the penal failures it incessantly produced during the Thatcher-Howard years. In 1996, after all, Michael Howard produced mandatory minimum three-year sentences for persistent domestic burglars, which didn't do much good to Tony Martin. A decade of answering what Hague now righteously calls "an explosion of anger among millions of law abiding people" with explosions of anger by ranting politicians had limited success in crime-reduction, and still less in restoring to society a hard sense of the difference between right and wrong.  There are many reasons for that failure: moral decline, godless materialism, social neglect, personal indifference, a duty-free society. For vigilante-ism to be written into law, the remedy Hague comes close to proposing, is insupportable, but people must be able, within the law, to defend themselves proportionately to the threat they face. Martin had an illegal weapon, and committed a shocking crime. The issue is the context, especially the legal context, in which this should henceforth be dealt with. There are sharply contrasting possibilities.  The politicians' way is to pass sweeping laws of ever greater crudity. These are what have put Tony Martin in jail for life, and Hague   wants more of them. They reject individual justice, in favour of grand statements that brush aside particulars. They may catch some serious criminals and send them down for a long time, but people of minor as well as major evil are caught in a penal regime which, more and more over the past decade, has promoted political over judicial decision-making. Life sentences, with discretion over the real time served given to the home secretary, are a burgeoning phenomenon of the British system, now extending well beyond murder. They undermine the notion of justice as a juridical not a political commodity, applying to people not to categories, addressing real lives and not tabloid furies.  The judges' way is different. The judge uses his judgment in all the circum- stances. He can look at Tony Martin and see he's not one of the Krays. Restoring his power to discriminate between one murderer and another would restore justice without imperilling social order in any way. Judges can be as hard as politicians, but aren't locked into a system that guarantees injustice. Actually, they will get their power back. As the Bulger case showed, political intervention in sentencing is beginning to seep away, because it violates the European human rights convention. This will retrieve some sanity. But not before the Martin case has sent politicians raging in the wrong direction.  <A