Examination of Witness (Questions 660
- 682)
TUESDAY 17 MARCH 1998
THE RT.
HON. LORD
BINGHAM OF
CORNHILL
660. Would you accept that if somebody is funding
a drug habit through crime and is being cured under a community
penalty there is every danger that they will be re-offending and
harming the public, whilst they are at liberty the public is at
risk?
(Lord Bingham of Cornhill) It clearly depends how
effective the treatment is. I do not want to be understood as
advocating that drug addicts should not be sent to prison. I am
not saying that. I am simply answering your point that prison
is really the only effective protection of the public. That is
not true as a general proposition.
661. One final point. Recorded crime has fallen.
Do you think that coincides with a larger prison population and
that the larger prison population is the reason why recorded crime
has fallen?
(Lord Bingham of Cornhill) I should be very surprised
if that were cause and effect.
Mr Malins
662. A word or two about young offenders and
diversion from crime. On the point of diversion, do you agree
that diverting youngsters, real youngsters, very young, away from
crime at an early age is firstly very important and secondly,
do you think we focus on that enough?
(Lord Bingham of Cornhill) Yes, to your first question;
no, to your second.
663. Could you amplify a little?
(Lord Bingham of Cornhill) Yes. The most important
thing is to try to identify people before they actually start
offending. I would take it even earlier in the life cycle of the
potential offender than the first offence. There is reason to
believe that the potential offender can be identified at quite
an early stage; most teachers think they can spot children who
are going to cause trouble when they are really very young. I
do certainly think that anything one can do to divert people and
try to give them some sort of constructive dimension to their
lives is eminently desirable and something to which maximum effort
should be devoted.
664. Perhaps more effort than we have put in
hitherto.
(Lord Bingham of Cornhill) Yes. I was impressed by
the number of local initiatives that there are and I have no doubt
that all of you in your constituencies have equivalents of these
things. I certainly hope so and there is a great deal to be said
for these things being done on a very local level, not least because
people know who the villains are in their neighbourhood and who
the problem families are on the estate or football club or whatever.
While I favour strong support and encouragement from central government,
there is a lot to be said for trying to develop the schemes on
a very local basis. The motor scheme and the retail theft scheme
and these kinds of things are absolutely excellent but they are
very expensive.
665. Back to young offenders. You quote in a
speech, with some approval it seems, an observation by Geoffrey
Wickes the stipendiary magistrate that those under 15 should in
many cases be dealt with in principle outside the criminal justice
system, just leaving a hard core. Could you develop that thought
a little bit and link it with your own observation about the identifiable
core of young offenders, the small number?
(Lord Bingham of Cornhill) There are clearly some
young offenders who are every bit as wicked as older offenders
and who cannot be dealt with by therapeutic means. There must
be quite a lot who can and to suck people into the cycle of offending
and criminal courts and punishment is unfortunate until one is
driven to it.
666. Do you think there is adequate provision
in this country of secure accommodation for young offenders?
(Lord Bingham of Cornhill) I do not really know, is
the answer to that. I have never known an order made when they
said you cannot make that order because there is nowhere for this
child to go.
667. We are going to be faced by legislation
shortly, the Crime and Disorder Bill and various young offender
type orders, parenting orders, reparation orders, action plan
orders and the like. Your views on some of those orders. Will
they be a good thing? Are there too many of them?
(Lord Bingham of Cornhill) My views are supportive
because they are trying to achieve what I have just been advocating,
namely catching people young before they are embarked on a committed
cycle of offending and they are directed towards rehabilitating
rather than punishing and those both seem to me to be good. There
is going to be a good deal of trial and error I suspect; nobody
quite knows how these orders will work out. I suggested in the
House of Lords that it would call for quite a measure of judgement
and restraint on the part of those who might be applying for the
orders or making them and that is true. It would be very unfortunate
if people had social misbehaviour orders made because they threw
snowballs in the park at the likes of us.
668. I hope that all those who sit judicially
will have plenty of training on the effect of these and what they
mean by the judiciary, by the Judicial Studies Board.
(Lord Bingham of Cornhill) Yes, one would certainly
hope so. Various of these orders do have a provision saying that
nobody shall make an order until the Secretary of State has notified
the court that a scheme is in existence in that locality. It is
going to be a matter of some concern that schemes are in existence
in different localities. It may take some time.
Chairman
669. We have to be a bit careful here, do we
not, because one of the reasons that the public have the perception
that the criminal justice system is ineffective is because it
has been ineffective against juvenile offenders? People who live
in the most troubled areas of our cities can see daily the evidence
of our eyes that serial minor villains appear to be immune from
effective retribution. The purpose of this Crime and Disorder
Bill is to bring in a range of measures which will help to deal
with that problem.
(Lord Bingham of Cornhill) Yes. One of its virtues
is in the anti-social behaviour order for example. That, as I
understand it, will be directed towards people who have not committed
any crime but who are behaving in a way ... One of the great complaints
which particularly the elderly have is teenagers hanging about.
You cannot actually prosecute somebody for hanging about ordinarily
but if it were sufficiently extreme I suppose it could be the
subject of an anti-social behaviour order.
670. Indeed we are now having to go back and
recognise that children aged between 10 and 14 can be responsible
for their offences, which perhaps in the past we have not done.
(Lord Bingham of Cornhill) Yes, there was the presumption
which has now been removed.
671. Do you agree with that?
(Lord Bingham of Cornhill) Yes.
Mr Allan
672. To follow up the issue of the various orders
in the Crime and Disorder Bill, do you share the concerns being
expressed by some people in the legal establishment about the
fact that an order which originally comes in with a civil standard
of proof, that someone is proven to the civil standard of proof
to be hanging around, could eventually end up, if that order is
breached, with a criminal sentence of up to five years in custody.
(Lord Bingham of Cornhill) I do not have a major concern
about the principle involved. It is almost impossible to imagine
the maximum being imposed.
673. Is there not a concern though that something
is being put into law which sounds wonderful, five years, very
draconian, a heavy sentence, but you are suggesting, and I should
probably concur that it is unlikely, it is hard to see the circumstances
under which that could ever be used.
(Lord Bingham of Cornhill) If, albeit on a civil burden
of proof, an order is made that a defendant shall not do something
which is very clearly spelled out, which he or she understands
and he or she then does it, then I do not in principle see any
reason why there should not be some sanction to follow a deliberate
breach of an order made by a court. I find it very difficult to
imagine circumstances in which a sentence approaching the maximum
could be appropriate. I suppose it is always possible to imagine
horrific scenarios.
674. One would imagine they would be accused
of another criminal offence if it were that horrific.
(Lord Bingham of Cornhill) One would assume so.
675. Have you looked at all at the Scottish
system of youth justice in this area? We get very good reports
from colleagues north of the border about how their system works.
(Lord Bingham of Cornhill) I am afraid that like a
lot of English lawyers I am regrettably ignorant about what happens
north of the border. I am alive to the fact that great claims
are made for it.
Chairman: I have come to the conclusion that
there is a great deal of smugness in the Scottish system.
Mr Howarth
676. When Sir David Ramsbotham came and regaled
us with a barrage of statistics one of those he dealt with was
new young offenders. He told us that only 18 per cent came from
homes with two parents and that 54 per cent, if I recall correctly,
came from homes where there had recently been divorce or separation.
The new Bill does provide for parenting orders and that sort of
thing but that is not going to apply so easily where there is
a family breakup. Since the judges are very much in touch with
what is going on in the outside world, can you tell us what role
you think family breakdown is playing in juvenile crime?
(Lord Bingham of Cornhill) I have absolutely no doubt
that it is huge. I read hundreds of criminal CVs in the course
of a year and there is an astonishing degree of uniformity about
them. Either marital discord, mother and father getting on very
badly with each other, or separating at a formative stage of the
child's life, are such common form as to be almost inevitable.
I do not know what the figures are. It is a subjective impression
on my part that one gets the trouble at home, which leads to malperformance
at school, which leads to exclusion from school, which leads to
indulgence in alcohol and drugs, which leads to hanging around
the streets, which leads to funding the habit, which then leads
into the familiar cycle.
677. Are we not all deceiving ourselves as legislators
and as members of the judiciary in thinking that somehow we can
cope with the problem which is really beyond our dealing with
alone?
(Lord Bingham of Cornhill) I have certainly said publicly
that no single agency in the criminal justice system can cure
these problems and I certainly do not think that. I do, however,
think that if great human resources are devoted to the identifiable
problem children at a very early stage this is the best hope of
redemption, if one can use that word, because they are identifiable.
Mr Howarth: I think I would agree with that.
Mr Hawkins
678. In your speech to the National Probation
Convention you stated that you could not exaggerate the help which
the courts receive from pre-sentence reports prepared with accuracy,
insight and objectivity. Do you have any analysis that enables
you to say what proportion of such pre-sentence reports lack that
kind of objectivity and analysis and accuracy and insight?
(Lord Bingham of Cornhill) No, I could not begin to
put a figure on it. Having, during my term as Master of the Rolls,
had a sabbatical from the criminal law, coming back I have noticed
a distinct change in the tenor of reports. There was a great tendency
for a probation report always to read like a somewhat over-partisan
plea on behalf of the offender and there is a very, very much
greater degree of objectivity and realism in the reports one now
sees. The judges welcome that and respect the reports and the
authors more for that reason. Whereas ten years ago you would
never have seen a report saying there is no alternative to custody,
one does now see, not with enthusiasm quite often but nonetheless
with a recognition that there are some offences for which community
penalties are simply inappropriate or likely to be thought so.
679. Would I be right in saying that there has
been, as perhaps in some other areas we talked about earlier,
a shift one way and then a shift back the other because certainly
in the late 1970s one did certainly often see probation reports
which said precisely what you have just set out, that there is
no alternative to custody, particularly from the more experienced
probation officers that there then were. I think I am right in
saying that what then happened was that the National Association
of Probation Officers, the trade union or professional body, actually
introduced a rule which said to probation officers that they could
only recommend non-custodial sentences, they could never actually
write a recommendation which recommended custodial sentences.
That then changed back again in 1995 with the national standards
for the supervision of offenders in the community which introduced
the welcome change you have talked about in pre-sentence reports.
(Lord Bingham of Cornhill) I am unfamiliar
with the background. I am sure you are right but I do notice a
change in the terms in which they are written and I think the
Probation Service themselves recognise that there has been a change
in their role. It was a valuable and respected role as the guide,
philosopher and friend of the offender and that role should persist.
There is also an added dimension as taskmaster and representative
with a duty to make sure that the rules the court has laid down
are complied with. That is much more rigorously done that it was.
That is certainly my impression.
680. Given the welcome change you have noticed,
the improvement in pre-sentence reports, are there other things
you feel could be done to make pre-sentence reports even more
useful to sentencers, things on the many reports you see which
could improve them still further?
(Lord Bingham of Cornhill) I do think it is very helpful—but
I am repeating myself—if a pre-sentence report gives one
a great deal of chapter and verse as to the precise regime that
the offender will undergo if this or that order is made, for example,
if some indication as to the community service project on which
he or she would be put is actually specified, otherwise it is
all rather vague and one does not really know what is involved.
Similarly, with attendance, if one is told there will be so many
sessions and they will be devoted to this and these are the hours
and so on, that is helpful.
681. Do you think it would be helpful to sentencers
if in addition to the pre-sentence report written by a probation
officer, you also had some kind of observations perhaps to guide
sentencers from the police officers in the locality where the
offender is situated? I am thinking perhaps not in every case
but in certain cases where we have all seen that police officers
have been able to identify, albeit for obvious reasons not by
name, that a particular offender is responsible single-handedly
for a crime wave in the area, would that information not be useful
to a sentencer in the exceptional case where the police have a
strong view for that information to be provided to the sentencer
which is separate from the way the prosecuting advocate would
present the matter to the court?
(Lord Bingham of Cornhill) The sentencer has to be
very careful not to base a sentence on crimes of which the defendant
has never been convicted.
682. Indeed not.
(Lord Bingham of Cornhill) We recently had an issue
to decide about what were always accepted in the past, namely
specimen counts. The issue was whether you could sentence somebody
on specimen counts when the man or woman denied committing any
offence at all. This has been done for years but we held you could
not do that. If people do not ask for something to be taken into
account and they do not admit it and they are not charged with
it and it is not proved, what basis has one to sentence them for
it? This decision caused some dismay among professionals.
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