Examination of Witness (Questions 40 - 59)
TUESDAY 17 MARCH 1998
THE RT.
HON. LORD
BINGHAM OF
CORNHILL
Mr Singh
40. 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.
41. 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.
42. 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.
43. 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
44. 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
45. 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.
46. 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.
47. 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.
48. 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
49. 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.
50. 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.
51. 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.
52. 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.
53. 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.
54. 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.
55. 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
56. 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.
57. 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.
58. Do you agree with that?
(Lord Bingham of Cornhill) Yes.
Mr Allan
59. 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.
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