Examination of Witness (Questions 20 - 39)
TUESDAY 17 MARCH 1998
THE RT.
HON. LORD
BINGHAM OF
CORNHILL
20. 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.
21. 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
22. 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.
23. 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.
24. 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.
25. 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.
26. 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.
27. 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
28. 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.
29. 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.
30. 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
31. 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.
32. 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.
33. 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
34. 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.
35. 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.
36. 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.<fu1>1
<jf83><fo1>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.
37. 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.
38. 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.
39. 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.
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