Examination of Witness (Questions 640
- 659)
TUESDAY 17 MARCH 1998
THE RT.
HON. LORD
BINGHAM OF
CORNHILL
640. Semi-illiterate.
(Lord Bingham of Cornhill) Yes. There are others who
are much more knowledgeable than I.
Mr Winnick: I realise. I am not pinning you
down to any percentage.
Mr Howarth
641. You referred to people who show contrition.
One of the problems which has hit the headlines recently is the
problem of paedophiles and those who show no contrition, indeed
far from showing contrition fail even to understand that they
have committed a crime in the first place.
(Lord Bingham of Cornhill) Yes.
642. We are in this particularly difficult position
where they have served their sentence, therefore they have paid
their dues to society in a sense, they are let out from prison
but whole communities are rejecting their presence amongst them.
Do you have any ideas what the law can do to try to deal with
this problem?
(Lord Bingham of Cornhill) The stable door has been
locked but not before some horses have bolted. The provision in
the 1991 Act providing for extended supervision of offenders in
these categories is valuable and use has been made of it. The
new provisions in the Crime and Disorder Bill will carry that
still further and those are valuable. Retrospectively very little
can be done about those who have served their sentences. They
are not subject to continuing supervision, they are free. All
we can hope is that police forces will make a note of where they
are and keep an eye on them.
643. Do you think that people should know where
these people live so that they can take precautions?
(Lord Bingham of Cornhill) I am very gravely concerned
about the persecution of people on the basis of their past, at
any rate until the moment they show any propensity to re-offend.
There was a case which was the subject of a reported decision
last summer. A man and a woman were released from different prisons
in the north east of England—I am not sure it was not in
Sunderland—they initially had accommodation provided for
them, the press revealed their presence, they were driven out.
They went somewhere else and were driven out of there. They lived
in a caravan and the matter came to light when the North Wales
police were concerned that they were living in a caravan on a
site which was going to be flooded with Easter holiday makers,
or it may have been the Whitsun bank holiday. The police moved
them on and the issue was whether the North Wales police were
acting responsibly in the way they did that. I think it is subject
to appeal so I had better be a bit careful what I say. We held
that the police had acted in the interests of the public properly.
One was left with a great concern. These people had not shown
any propensity to re-offend at all. They were not hanging around
schools, they were not doing anything they should not have done
but one can well understand the concern of the police that they
should have been in that place at that time. There has to be some
public understanding unless people are just going to be treated
as lepers for ever after a conviction of this kind.
Mr Hawkins
644. May I take you back to something you said
in answer to Ms Hughes? You were talking about the need for a
change in the public mood and the pressures caused by the substantial
prison population. There are perhaps two views about how the country
ought to respond to the large number of people sentenced to custody.
One is that one should continue with a substantial prison building
programme and the other is that one should seek to sentence fewer
people to custody. You mentioned the very strong public feelings
about lenient sentences, no doubt stoked up by the press. When
you are talking about the effort which needs to be made to change
the public mood and the need to promote the effectiveness and
ensure the effectiveness of alternatives to custody, are you really
saying that it is the pressure of the prison population overcrowding
which leads you to that view or is it the comments of people like
Sir David Ramsbotham in evidence to this Committee that there
are perhaps a lot of people who should not be in prison?
(Lord Bingham of Cornhill) I hope that one is motivated
primarily by a basic sense of justice really. I have made it plain
that I very strongly feel that every pound spent on potential
offenders at a very young age is a pound very well spent and very
much better spent than on building wonderful new high security
prisons with all the security devices which are now demanded.
There is simply a need for a change in the public approach to
these matters. A decade ago all the pressure was the other way:
do not send people to prison, whatever term you have in mind halve
it, the second half of the sentence will do them no more good
than the first half and so on. The pendulum has gone much too
far the other way.
645. Would you agree with me that one of the
reasons for the public mood becoming as it was, that there were
people being let off with too lenient sentences, was because of
the recognition by the public, again perhaps stoked up by the
media, that when a judge said, for example, "I sentence you
to a term of six years' imprisonment", that if you then had
one third remission and one third parole, the actual sentence
served would be one third of what sentence the judge pronounced.
I over-simplify of course but that was one of the reasons I would
suggest to you why the public mood changed in the way you have
described.
(Lord Bingham of Cornhill) Before effect was given
to Mark Carlisle's committee's recommendation, the situation in
relation to parole had become almost farcical. For reasons I could
never quite understand, there were even cases where somebody stayed
a shorter time in prison if he got a longer sentence than if he
got a shorter one. I never understood that but that simply cannot
make sense. I myself thought and continue to think that the regime
introduced in 1991 was a sensible one and as you may or may not
know I have recently given a practice direction which requires
a sentencing court to spell out exactly what the sentence does
meet. It is not without its difficulties and it has caused various
explosions up and down the land in more sensitive cases. On the
whole, I have no doubt this is a sensible innovation.
646. Certainly I personally would agree with
that. Would you agree with me that one of the ways in which you
can try to affect the public mood is, as your practice direction
seeks to ensure, to bring about realism in sentencing so that
the public know and the media know exactly what the sentence really
is.
(Lord Bingham of Cornhill) I entirely agree with that.
Mr Linton
647. I want to take you on to the attitude of
sentencers to community sentences. You have heard the evidence
from Sir David Ramsbotham that he thinks that about 20,000 people
are in prison who should not be there. You said in your speech
which was referred to that one of the reasons for judges becoming
harsh or passing longer sentences is in response to political
rhetoric and public opinion. What we are trying to do is to understand
the reluctance of some sentencers to use community sentences.
The first question is really whether it is in the nature of the
punishment itself. We know that the perception of community sentences
is often that they are too soft, maybe even the name sounds too
soft. What about the reality? You say in your speech that it should
be 60 minutes' worth of rigorous and demanding work done punctually
and to an acceptable standard. Do you think that community sentences
really do match up to that?
(Lord Bingham of Cornhill) I visited a scheme in London
and I was definitely impressed. There was an excellent person
running a group of about seven or eight community service orderees.
She was an excellent person who was running it, the group was
part male, part female and it seemed to be absolutely plain that
if you turned up ten minutes late you simply did not get any credit
for that day and you were sent home. There was no sitting round
and watching the television or anything of that kind. Equally,
I was pleased to find that the relationship between the supervisor
and the offenders was a pleasant and constructive one. The atmosphere
was not aggressively authoritarian but they knew they were being
punished and I was impressed by it.
648. You are describing a visit you made. What
do you say about the evidence that a survey conducted in 1995—it
may be out of date now—found that something like one third
of judges had not visited a probation office in the last two years,
half the judges in the survey had not visited a probation centre
and two thirds of them had not in the last two years visited a
community service project. If that is right, it seems as though
many of your colleagues have not done what you have done to visit
and actually see community service projects in practice. Do you
think this is a handicap for them in passing sentence?
(Lord Bingham of Cornhill) I do think it is desirable
that people should go and have a look at what is actually happening,
certainly. I am slightly surprised that more have not. I did not
know the figures until you gave them to me.
649. This was Home Office research in 1995.
Is there anything you can do to ensure that sentencers have had
first hand observation as you have had? It is obviously something
you found interesting.
(Lord Bingham of Cornhill) There certainly is. I can
encourage them and I have every reason to think they would be
encouraged. One has to remember that judges are under great pressure
to try cases. The courts have a backlog, they are open to criticism
if the delays build up, so this kind of activity has to get fitted
in. It should be fitted in and I totally agree with the point
you are making that this is a valuable way of educating oneself
into the realities of what one is imposing on others.[1]
650. When the sentencers actually pass sentence
do you feel they are given enough information at that stage about
what the options are? Do you feel there is any lack of information,
lack of communication?
(Lord Bingham of Cornhill) No, one usually gets a
full pre-sentence report, unless it is one of those cases where
the sentence is imposed without one, which is a very small minority
of cases. The author of the report does outline the courses open
and quite often gives chapter and verse for exactly the regime
which would be imposed on the offender if an order of a certain
type were made. Every sentencer would regard that as extremely
helpful.
651. When sentence has been passed and has been
served, do you feel that judges and other sentencers get enough
information coming back to them about the effectiveness of those
sentences, both in individual cases that they have tried and in
a statistical way about cases in general?
(Lord Bingham of Cornhill) My own personal experience
is that different parts of the country vary. I can certainly remember
some areas where if one put somebody on probation one received
reports at intervals until the end of the probation period. That
was not universal and certainly I have never known of the judge
being told what happens to somebody in prison, although there
are some prisoners who write to tell one, often in a surprisingly
friendly way.
652. Forgive me, I do not know enough about
the way the legal system works to know what powers as Lord Chief
Justice you have over sentencers. Can you insist, for instance,
that information is given to them about previous cases? Can you
insist that they visit community service projects or is it something
you can only encourage?
(Lord Bingham of Cornhill) The latter. One has really
no power to give orders to anybody but usually invitations are
heeded.
Chairman: I know the feeling.
Mr Singh
653. The British Crime Survey found that 51
per cent of those surveyed thought that sentences were too lenient.
Instead of arguing that public opinion is wrong, should we not
actually be responding more in terms of and more in line with
public opinion?
(Lord Bingham of Cornhill) I do not actually think
so, for this reason. The more that the public know about the system
and the level of sentencing, the more respect they have for it.
I call to mind two particular inquiries. On one occasion, for
the purposes of Lord Runciman's Royal Commission, a survey was
done of those involved in particular cases, jurors and so on.
They were asked whether they thought in the case they witnessed
the sentence imposed was too lenient or too severe or was about
right. My recollection is that about half thought it was just
about right and one quarter thought it was too tough and the other
quarter thought it was too lenient, which suggests it was roughly
right. That was not actually the result which those who commissioned
and carried out the research expected to find. The second thing
which springs to mind is an Evening Standard inquiry on a rather
more limited basis when they sent a number of reporters round
to London courts with a view or in any event an expectation that
the reporters would come back and pour scorn on the sentences
which were being imposed and the reverse was true: they all came
back and thought they were pretty tough. I am bound to say that
in my view, leaving one or two countries in the world out of account,
our tradition is an extremely punitive one. As compared with continental
Europe for example we have always imposed much tougher sentences
than most other countries. You can say they are tougher in the
United States and one could think of one or two other countries
in the Middle East but on the whole our tradition is a very, very
punitive one.
654. Your argument is that if the public were
better informed the British Crime Survey might have come up with
different answers.
(Lord Bingham of Cornhill) That is really what the
British Crime Survey said.
655. In what ways do you think we, the criminal
justice system, politicians, can better inform public opinion,
get information to the public in ways we are not doing at the
moment?
(Lord Bingham of Cornhill) There is a need for everybody
who has any means of commanding the public ear to address the
subject. Of course these things have to start at the top and the
Home Secretary has addressed this topic. He spoke to the National
Probation Convention in the Queen Elizabeth Centre a few months
ago—he spoke in the morning and I spoke in the afternoon—and
I found we had said surprisingly similar things to very much this
effect. There is a duty on absolutely everybody, certainly those
who command political platforms and, within the limits of what
is open to them, the judges and the magistrates.
656. I am wondering how effective that information
would be in reality. You stated that anyone who commits a crime
of any seriousness and is not sentenced to custody is generally
perceived to have got away with it. Will better information take
away that perception?
(Lord Bingham of Cornhill) I think I was talking about
community penalties there. I very much hope that the public can
be educated and the media can be educated to recognise that community
penalties are serious penalties and not getting away with it.
After all doing unpaid labour for 240 hours or any significant
number of hours is a deprivation of liberty and is a serious punishment.
I think Mr Linton raised the question of the name and I do myself
think the name is slightly unfortunate: community service sounds
too much like voluntary service overseas and there is nothing
voluntary about it.
Mr Linton
657. What would you suggest?
(Lord Bingham of Cornhill) Criminal work order is
the suggestion I have made. This was actually a suggestion put
to me by a lay justice in Wiltshire at a meeting I attended. She
made the point that it is an order—there is nothing voluntary
about it—it is an order which is made because a crime has
been committed and it involves work. I think that is a good title
for it and it would quite possibly alter the perception of this.
Mr Singh
658. You have also stated that "protection
of the public may be achieved either by curing a defendant of
his propensity to offend, or by deterring him and others from
offending, or of course both". Would you accept that the
best way of protecting the public and ensuring that re-offending
does not take place is through prison sentences, through custody?
(Lord Bingham of Cornhill) No, not necessarily. Supposing,
to take a not very hypothetical example, you have somebody—and
there are many people in this category—who has been committing
crimes every day of their lives for years on end to fund a drug
habit, shutting them up in prison and doing nothing to cure the
drug habit does not protect society except for the short period
when they are actually in prison. If on the other hand you could
cure them of the drug addiction out of prison then in the longer
term that would be very much better protection for society. Of
course I recognise that there are some crimes of such seriousness
that people simply have to go to prison. I recognise that very,
very squarely in everything I have said on the subject. Constructive
rehabilitative measures in anything other than a case where custody
is the only resort is a very good way of protecting society.
659. If a person is re-offending to fund a drug
habit, why should they be at liberty whilst they are being cured?
(Lord Bingham of Cornhill) If you can give them adequate
treatment in prison, then that may well be the ideal answer. Most
people would have to acknowledge with regret that the treatment
of a great number of addicts in prison is certainly rather defective
and inadequate. People go in and come out and virtually nothing
has been done to cure them of their drug addiction.
1 Note by the Private Secretary to the Lord Chief
Justice: In answer to Question 649 Lord Bingham said that
he would encourage judges to visit probation centres and community
service projects to improve their knowledge of the realities of
the non-custodial sentences they imposed. Lord Bingham intends
to take the opportunity of the next plenary meeting of the justices
of the High Court on 21 April 1998 to encourage those High Court
judges who sit in crime to do so. He will also ask the Presiding
Judges for the six circuits of England and Wales to carry this
message to the circuit judges across the country. As Lord Bingham
mentioned, however, the courts are under a great deal of pressure
to dispose of as many cases as possible as quickly as possible
in order to minimise delay. (The importance of this will not be
lost on the Committee in the context of its present inquiry in
the light of the evidence it has received on the number of prisoners
on remand.) Any time spent on administration, training or visits
such as these, however valuable, is time not spent on the immediate
imperative of pushing work through the courts and judges everywhere
do their utmost to keep periods away from the coal face to a minimum.
Nevertheless, the Lord Chief Justice entirely agrees that such
visits must be fitted in and will accordingly remind his fellow
judges of the importance of gaining first hand knowledge of the
operation of non-custodial penalties. Back
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