Examination of Witness (Questions 614
- 639)
TUESDAY 17 MARCH 1998
THE RT.
HON. LORD
BINGHAM OF
CORNHILL
Chairman
614. Good morning, Lord Bingham. Thank you very
much for coming. Thank you also for the interesting speeches you
have given us copies of which have given us plenty of food for
thought.
(Lord Bingham of Cornhill) I am sorry about that.
615. No, we are very grateful for that; they
will come in very useful not only for this but, I suspect, one
or two other inquiries in the future. As indicated to your office,
and I hope it is acceptable to you, we not only want to ask you
some questions about the subject of our main inquiry, which is
on alternatives to prison, we also want to stray into one or two
more general issues. If you feel we are trespassing into areas
you do not want to comment on publicly, do not hesitate to say.
Otherwise than that we should be most grateful for an answer.
Is that acceptable to you?
(Lord Bingham of Cornhill) Yes, that is acceptable;
certainly.
Chairman: There has to be a declaration of interest
by any practising lawyers who are present.
Mr Malins: I must declare an interest as a lawyer,
a Recorder of the Crown Court and an acting metropolitan stipendiary
magistrate.
Mr Hawkins: I declare an interest as a member
of the Bar.
Mr Cranston: I am a Recorder and practising
member of the Bar.
Chairman: We are going to start with one or
two general questions, if we may.
Mr Cranston
616. May I ask you generally about the role
of the Lord Chief Justice and your contribution to the development
of the legal system, in particular the criminal justice system
because we have a current interest in that?
(Lord Bingham of Cornhill) A warning that you were
going to ask this caused me to think about this in a more structured
way than I have really ever done before. It is right to say that
the office, as I see it, has four roles which are to be fulfilled.
The first and the most obvious, certainly the most important,
is the judicial. The Lord Chief Justice is by statute the president
of the Criminal Division of the Court of Appeal and president
of the Queen's Bench Division of the High Court. He is also a
member of the Civil Division of the Court of Appeal and he is
qualified to sit on the House of Lords Judicial Committee and
the Judicial Committee of the Privy Council, although I do not
sit in that capacity. I think it is true to say that virtually
nothing I say really concerns the law lords. What I have done
since appointment is to spend half my time sitting in the Criminal
Division of the Court of Appeal, about one quarter in the Queen's
Bench Division in the divisional court dealing with judicial review
and appeals from the magistrates' courts, which is an important
supervisory jurisdiction, one quarter of the time sitting in the
Civil Division and occasional short visits outside London. I have
so far visited Liverpool, Teesside and Newcastle, the purpose
being very largely educational so far as I am concerned. It is
valuable for me to have the experience of sitting at first instance
and seeing what it is really like on the ground and also valuable
to have the opportunity of meeting the judges, magistrates and
court staff in those areas. So far as my judicial portfolio is
concerned, it is fair to say that I get more than my fair share
of difficult, sensitive and high profile cases. The second role
is an administrative one: as the senior professional judge the
Lord Chief Justice has a measure of responsibility for the functioning
of the whole system. I stress a measure, because of course the
bulk of the administrative work up and down the land is done through
the Lord Chancellor's Department and The Court Service. The judges
do have a substantial input: the heads of the divisions of the
High Court and the Court of Appeal, the vice presidents of the
Criminal Division and the Queen's Bench Division, the judges running
particular courts such as the Commercial Court, the Official Referees,
the Patent Court and so on, the Jury List and the Non-Jury List.
Then there is a structure: the senior presiding judge, who is
a Lord Justice, two presiding judges on each circuit who maintain
contact with resident judges in court centres, liaison judges
who keep in touch with the magistrates and so on. The third role
I would describe as advisory: advising the Lord Chancellor about
a wide range of matters including, but not only including, judicial
appointments; advising the Home Secretary. As a matter of routine
the Lord Chief Justice advises on the minimum term to be served
by every mandatory life sentence prisoner and also advises on
the release of every mandatory life sentence prisoner. There are
also a number of matters very familiar to this Committee which
are the subject of discussion between the Home Secretary and the
Lord Chief Justice of the day. It is perhaps just worth mentioning
that there is certainly an advisory role in relation to the judges
themselves. They will consult their heads of division or if they
are in doubt they will consult me. If the heads of division are
in doubt they will consult me about ethical matters, whether judges
should do this or should not do that, whether they should appear
in television programmes, that kind of question. The fourth general
role—and I hope I am not being too long—I would describe
as representational. The Lord Chief Justice is to some extent
the medium of communication to and from the judiciary on issues
on which the senior judiciary are involved. There are various
structures in place. One is the Judges' Council which consists
of about 15 or perhaps a few more senior judges who meet twice
in every law term and discuss matters of mutual concern to the
judges, for example, IT, the implementation of Woolf, the incorporation
of the European Convention and the practical demands that is going
to make and also, because this is real life, we occasionally touch
on questions relating to pay and allowances. Once in every term
there is a meeting of all High Court judges over which the Lord
Chief Justice presides and the other heads of division, apart
from the Master of the Rolls, are present. There are twice termly
meetings of presiding judges. There are meetings of the judges
who sit in the Crown Office list, there are meetings of the Commercial
Court judges who also have a users' committee representing those
who actually make use of the Commercial Court. Then, under this
same head, there is a representational role in addressing topics
of current concern relating to the administration of justice.
This is why I take it that the Lord Chief Justice has a seat in
the House of Lords. He also gives public lectures and speeches,
he visits magistrates' courts and Crown Courts, he attends conferences
and seminars in this country and abroad, he attempts to inform
himself of current conditions by visiting prisons, young offender
institutions, probation schemes and community service projects.
He tries to keep in touch with other bodies such as the Centre
for Dispute Resolution, I happen to be chairman of the advisory
council of that, the Chartered Institute of Arbitrators, other
bodies related to activities related to straight litigation. There
is also a dimension of trying to maintain links with the academic
world and the community lawyers by means of seminars, lectures
and so on. These are all constituencies with which one tries to
keep in touch and maintain links.
Chairman
617. He also occasionally visits Select Committees
in the House of Commons.
(Lord Bingham of Cornhill) Yes; I should have mentioned
that.
Mr Cranston
618. We will come back to the advisory role
later on, especially with judicial appointments. In terms of the
administrative role, how do you fit in with the Lord Chancellor's
Department? Is your word final in terms of administrative matters
or is there some sort of delicate balance here between your role
and the role of the administrators within the Department?
(Lord Bingham of Cornhill) There is an undrawn line
of demarcation between matters which are regarded as purely administrative
and things which the judges would regard as their own business.
For example, if one had, let us suppose, a peculiarly difficult
and sensitive case, I might very well be consulted as to who would
be a suitable judge to ask to try it. I should not expect the
Lord Chancellor's Department to have any input on that and we
would regard that as a matter of judicial deployment which we
would deal with. Equally of course, all matters about what judge
visits what circuit at what time is a matter we sort out entirely
ourselves. Manning the battlements, making sure that there are
judges in the right place to try the right case is a matter which
is really almost entirely, certainly at the higher level, within
the control of the judges themselves.
619. What about the present division between
the Lord Chancellor's Department and the Home Office? It is something
we strike in our inquiries. Do you have any views on that? You
know that there is this long-standing argument for a Ministry
of Justice. Do you have any particular views about the allocation
of responsibilities between those different departments and whether
they ought to be changed?
(Lord Bingham of Cornhill) Like lots of British institutions,
if one had a blank sheet of paper and had to design a system,
one probably would not design it exactly as it is. History explains
how it has grown up. On the whole I think it does not work too
badly.
620. You mentioned the Judges' Council. Could
you say a little more about your role in relation to that? Do
you speak for the judges when the Judges' Council discuss things
or do you stand above the Judges' Council?
(Lord Bingham of Cornhill) No, I preside at the Judges'
Council as the first among equals. If it is desired to present
a judicial position on something, then it would ordinarily be
discussed in the Judges' Council and that would be taken to represent
the position of the judges. I do not want to over-emphasise the
democratic credentials of this body. There is no process of election
and it would always be open to a judge to say that may be the
Judges' Council's view but it is not his. There is a tendency
to talk about judicial opinion as though it were a monolith. In
fact, no doubt as with members of parliament, there are as many
opinions as there are members. They tend to be quite opinionated.
621. Can you give a few recent examples where
the Judges' Council has taken a particular stance?
(Lord Bingham of Cornhill) On a subject close to the
heart of this Committee, we did discuss the question of freemasonry
and we did tell the Lord Chancellor of the day, Lord Mackay, what
our position was on that.
Chairman
622. There has been some talk in the last few
days about a Ministry of Justice. Do you have any thoughts on
that?
(Lord Bingham of Cornhill) Yes. It is a very, very
long-standing suggestion. It has been on the agenda for at least
this century, has it not? I actually think the Lord Chancellor's
office is a valuable part of the constitution and should be very
sorry to see it disappear or be transformed out of recognition.
The sharing of functions, maybe some transfer of powers from one
to the other or the other to the one, could take place with advantage.
This is not really my neck of the woods: this is a very political
question.
623. A moment ago you mentioned that you were
consulted about who should try sensitive cases.
(Lord Bingham of Cornhill) Yes; sometimes.
624. Could you give an example?
(Lord Bingham of Cornhill) I should not want to give
a specific example but if there were a particularly difficult
case coming up, with high public sensitivity and it had unusual
features, I might well be asked whether I thought X would be a
suitable judge to try it, whether I regarded him as a safe pair
of hands for this particularly difficult case. I might say yes,
or I might ask about Y and whether we could get hold of him or
her.
625. A cynic might say that in one or two of
the more controversial cases in the past, the Clive Ponting one
is one which comes to mind or the trial of the police officers
in the Guildford case, the judge appears to have been chosen for
his predisposition to the evidence. What would you say about that?
(Lord Bingham of Cornhill) I could only say from my
personal experience I could reject totally any suggestion that
a judge was ever chosen to achieve a particular result. I simply
have not encountered that and should adamantly refuse to be a
party to it. There are some pairs of hands which are regarded
as safer, particularly for some classes of case, than others.
One obviously wants a safe pair of hands for a case which is peculiarly
difficult.
626. Obviously one person's safe pair of hands
might be to another person wholly unsuitable for the task.
(Lord Bingham of Cornhill) By "a safe paid of
hands" I simply mean somebody who will not make mistakes.
I emphasise that I am not talking about achieving a result. I
have simply never known any case in which a judge was selected
with a view to achieving one result or another.
627. Ordinarily how is a High Court judge selected
to try a particular case?
(Lord Bingham of Cornhill) If, for example, it is
a peculiarly complex and difficult fraud case, one will try to
find somebody whose experience has involved a good deal of exposure
to complex and sophisticated commercial transactions. There will
be a number of people whose experience is broad and excellent
and valuable but will not include that. In a number of recent
fraud trials it has been judges with commercial experience rather
than mainline criminal experience who have been asked to try these
cases and they have done so with notable success.
628. Who asks them?
(Lord Bingham of Cornhill) If we are talking about
criminal trials by Queen's Bench judges, it would usually be the
vice president of the Queen's Bench Division, Lord Justice Kennedy,
who relieves me of a great deal of what would otherwise be my
own personal administrative responsibility. If he were in doubt,
he would discuss the matter with me first. We have never had a
disagreement.
Chairman: We will now move on to the prison
population and what is the subject of our main inquiry for the
time being.
Ms Hughes
629. We have been hearing from other parties
giving evidence to us about the general trend in terms of the
rise in the prison population, who is in prison and also some
ideas as to what might be done about that. Do you have any thoughts
yourself on why sentencers appear to have been increasing the
proportion of offenders going into custody at a time when—and
there are problems about this—at least on the face of it
recorded crime has been falling?
(Lord Bingham of Cornhill) We have to view this in
an international setting. In a number of countries in addition
to this one, notably the United States, Australia, the Netherlands,
there has been a strong public mood to make punishment more punitive,
to increase sentences, lengthen sentences, treat offenders more
severely. In this country as in others that has been reflected
first of all in political rhetoric on the subject and in a great
deal of media reporting of the subject, which has had the result
that the general level of sentencing is, as I think the British
Crime Survey revealed recently, completely misunderstood by the
mass of the population. Those who actually go into court and see
what happens do not on the whole think that criminals are dealt
with too lightly, but the mass of the population undoubtedly does.
If you stop a dozen people in the street and ask them, they will
all say yes, people get away with everything and commit the most
appalling rapes and they do not go to prison and so on. Anybody
with knowledge of the system knows this is simply untrue. This
does all contribute to public pressure on judges and magistrates
to be severe in the sentences they pass and I am not myself unduly
critical of that. It would be very wrong if anybody sitting in
a judicial capacity were to be influenced in their decision in
a particular case by any media campaign in favour of exemplary
punishment of a particular offender but I do think judges and
magistrates have a duty to the society they serve. They cannot
be deaf to the opinions of their fellow citizens and it is important
that the public should have confidence in the administration of
justice. If people do not have confidence in the administration
of justice, then there is private vengeance and the taking of
the law into the hands of the citizen and vigilante groups and
a whole lot of undesirable developments. It is part of an international
mood, reflected in a certain amount of public oratory, and certainly
reflected in the media. A judge or a magistrate who faces column
inches of abuse as a result of some sentence he or she passes
does prefer to avoid that.
630. If that is the case and if that mood continues
and there is no intervention to try to change this dynamic about
public opinion and influencing sentencing and the number of people
sentenced to custody continues to rise, do you think that is a
position we can sustain? Do you think that is an effective criminal
justice system?
(Lord Bingham of Cornhill) I am very, very reluctant
to accept your condition. You say if nothing is done to change
the public mood and so on. I think something should be done to
change the public mood. I think it should be done by everybody
with an input into the subject. I am quite sure that the Home
Secretary would like to see a fall in prison numbers. I am quite
sure that the Treasury would like to see a fall in prison numbers.
The judges would certainly welcome a fall in prison numbers, as
would the magistracy, but it involves a conscious and deliberate
effort to educate the public as to the facts of penal life and
I also think, and this is part and parcel of that, that it calls
for a very deliberate and sustained effort to educate the public
in the efficacy of alternative means of disposal which involves
making absolutely sure that the alternative means of disposal
are rigorous and effective.
631. We will get onto that later. We heard last
week from Sir David Ramsbotham, Chief Inspector of Prisons, that
in his view about 30 per cent of women in prison, 30 to 40 per
cent of young offenders and about the same number, 30 per cent,
of adult males in prison do not need to be in prison in terms
either of the severity of the sentence or deterrence from future
offending. Would you agree with that?
(Lord Bingham of Cornhill) I saw he had said that
and I have the greatest possible respect for Sir David Ramsbotham.
I cannot disagree with him, I can really only give you the benefit
of my experience which is sitting in the Court of Appeal Criminal
Division. There are many appeals by defendants against sentence
and they are usually complaining they have been sent to prison
or custody for too long. It is not very often that we reach the
conclusion that they should not have gone to prison or to custody
at all. Sometimes we do. I can think of a case quite recently
where it was a very short term but we said it did not merit a
sentence of custody at all. That is a minority of cases and we
are quite careful that if we do not think somebody should have
gone to prison, we do not say it was a reasonable thing to have
sent them to prison but we will shorten the term so that they
walk out tomorrow. I myself think that is wrong in principle because
it gives the wrong signals and gets into the books and gives the
wrong steer. What I cannot answer about, without wishing to make
any accusation against them, is the magistracy because we do not
hear appeals from magistrates' courts. It is of course inevitably
the Crown Courts who deal with the more serious cases. I simply
do not know. If Sir David says that it is a view which clearly
needs a lot of examination. I am slightly surprised that he singles
out women and young offenders because I should have thought everybody
was more resistant to sending a woman or young offender into custody
than anybody else.
632. Do you feel that the evidence supports
that? Do you have any concerns that people in certain groups,
women, members of ethnic minorities, tend to receive a custodial
sentence earlier in their criminal career and for less serious
offences?
(Lord Bingham of Cornhill) One sees that stated. I
find it difficult to believe, I have to say, and certainly my
own experience does not suggest to me that that is so.
633. Are you aware of any evidence which has
researched that question and looked at it in terms of groups?
(Lord Bingham of Cornhill) I cannot claim to have
explored it in great detail. I am alive to the fact that it has
been suggested.
634. Another subject we touched on last week
with Sir David was the introduction of weekend prison sentences
for offenders and the developing flexibility and innovation in
terms of the way custodial sentences could be applied and executed
by the offender, which is not necessarily a block period of time
for six months a year or whatever. Have you any thoughts about
that?
(Lord Bingham of Cornhill) I have no reservations
in principle about that. My own view is that while it is sometimes
necessary for punitive or protective purposes to deprive someone
of his or her liberty, that should be done to the minimum extent
necessary to achieve whatever purpose it is sought to achieve.
If one can do that by imprisoning somebody at the weekend and
not otherwise, then that is a benefit in my view. I should have
feared, but I saw that Sir David said otherwise, that the administrative
problems would be rather formidable. I should have thought, particularly
with the prisons in their present state, to have people coming
in on Friday night and leaving on Sunday evening with cells standing
empty, presumably, from Monday to Friday, would create great difficulties.
But if the administrative problems can be overcome I should have
no reservations about the principle. I should not be confident
that it would lead to a fall in the number of those sent to prison.
I should just have a slight fear that in the kind of case where
somebody has a job and has family responsibilities and a sentencer
now says those considerations deter them from imposing a sentence
of imprisonment which they really ought to for the crime, if it
were possible to send somebody to prison just for the weekend
so they could keep their job and continue to look after and support
their family, they might end up there where they would not otherwise.
I do not know; it is just something to bear in mind perhaps.
Mr Winnick
635. You do seem to recognise in the speech
which you made to the Police Foundation and which you were kind
enough to send to us that the prison system is already bursting
at the seams.
(Lord Bingham of Cornhill) Yes.
636. That is not surprising, bearing in mind
the current level of the prison population which is due to rise
to somewhere well over 69,000 in 1999 on present trends. That
must give you a great deal of concern, does it not?
(Lord Bingham of Cornhill) Yes, it does.
637. In the speech which, if I may say so without
in any way being patronising, I thought highly commendable and
the other speeches which you have recently made, you speak—I
do not quote word for word—about the prison system being
not likely to be one where the person will necessarily by any
means be rehabilitated but quite likely brutalised further. Would
it not therefore be the case that if there is going to be serious
thinking along these lines one could say that unless the person
has been convicted of the most serious offence or is a danger
to the community is there any particular reason why he or she
should receive a custodial sentence?
(Lord Bingham of Cornhill) I find it very difficult
to answer that question in the abstract. We would all be inclined
to be more tolerant of relatively minor offences of dishonesty
than offences of violence or offences of a sexual nature and one
does get very ugly incidents of violence and sexual assault of
one sort and another. Of course there are cases on record where
a court in that kind of situation says they are going to take
a very lenient course and put them on probation, something of
that sort, and the offender goes home and is then half murdered
by his neighbours who just feel he has not paid his debt to society.
While I do not want to give the impression, because it would be
a false impression, that everybody who passes sentence is surrendering
to public vindictiveness, this is not a factor which can be ignored.
638. Indeed judges can be severely criticised
if someone has been released into the community who then commits
a terrible crime and I am sure MPs would be amongst those, perhaps
even myself, who would be critical. However, in the same speech
to the Police Foundation you gave what could be described as a
pretty accurate description, profile, of the average offender.
One wonders in those circumstances of the description which you
have given whether there is any chance that the majority or even
a substantial minority are likely to be rehabilitated while in
prison so there is a reasonable chance they will not re-offend
afterwards. That is not very likely, is it?
(Lord Bingham of Cornhill) My belief is, and it is
a belief I base on what prison governors have told me, that there
is an identifiable minority of prisoners who are seriously motivated
to cure whatever it is that has led them into crime; very often
it is alcohol, very often it is drugs, quite often it is just
sheer hopelessness and desperation. For example, at Feltham, which
is an institution I have no doubt is very familiar to this Committee,
certainly the former governor's view was that there was a recognisable
number of young offenders with terrible records, aged 18, 19,
who had just begun to realise that if they never did learn to
read or write or operate a computer their chances of getting any
employment anywhere were nil and he was very much concerned that
the pressure on numbers in his institution made it very difficult
to provide those offenders with the education they really desperately
needed if they were ever going to be turned round. The drug addict
who really does want to kick the habit, the person who does realise
that his or her educational deficiencies are so great that they
need to have something done about them, there are these groups
for whom something can seriously be done.
639. Would you say most of the offenders are
illiterate or semi-illiterate?
(Lord Bingham of Cornhill) I could not speak with
authority on that. My hunch would be that perhaps a majority would
be jolly nearly so.
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