Examination of Witness (Questions 60 - 79)
TUESDAY 17 MARCH 1998
THE RT.
HON. LORD
BINGHAM OF
CORNHILL
60. 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.
61. One would imagine they would be accused of another criminal
offence if it were that horrific.
(Lord Bingham of Cornhill) One would assume so.
62. 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
63. 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.
64. 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
65. 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.
66. 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.
67. 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.
68. 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.
69. 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.
Chairman
70. We are now going to turn to more general matters, starting
with your interesting speech the other day on the mandatory life
sentence. This is an issue which the Select Committee, under previous
management, examined a few years ago and it split us almost exactly
but not quite along party lines.
(Lord Bingham of Cornhill) Not, I think, in the first
report. I think the first report may have been unanimous.
71. We were unanimous about some aspects but on the key issues,
I am afraid to say, we shed more heat than light. Have you had
an opportunity to discuss your views with the Home Secretary?
(Lord Bingham of Cornhill) Yes.
72. He does not agree with you, does he?
(Lord Bingham of Cornhill) Not yet.
73. Do you feel you are making any progress?
(Lord Bingham of Cornhill) I had a very brief and
extremely friendly discussion with him yesterday. It was a totally
confidential discussion but I should not want to give the impression
that he encouraged me.
74. What do you say to the argument that the only way to
avoid the possibility of having to release a dangerous person
at the end of a determinant sentence is to have the decision taken
by a politician?
(Lord Bingham of Cornhill) We are talking about murderers.
If a murderer, that is those guilty of the crime as currently
defined, were to be considered to be a continuing danger for a
foreseeable or unforeseeable period, then in the ordinary course
the judge would pass a discretionary sentence of life, specifying
a term of years in the same way as with a discretionary life prisoner
and the question of release would then be based on an assessment
of risk. The defendant would not be released so long as there
was any risk in releasing him. The point I seek to make and I
think it is irrefutable is that a very large number of murderers
and certainly a majority are not a continuing risk. I give some
examples: the battered wife who eventually takes a carving knife
to her husband, the desperate young man who strangles his sweetheart
because she goes out with some other man. An example I gave was
a woman who murdered an imbecile son because she had to go into
hospital to have an operation. She tried to put off the operation
and she was told she would not live for six months if she did
and if she did not live there would be nobody to look after the
son so she kills him in circumstances of extreme desperation.
These are people who will never ever kill again. There is no purpose.
I gave the example, on making the allowance which is now to be
tried again, of Private Lee Clegg. Nobody could suppose that was
a young man who could ever kill again, even assuming he was guilty
of murder the first time. I am not saying that everybody should
automatically be released at the end of a term of years. I am
envisaging that, as with other crimes where a discretionary maximum
of life is imposed, it should depend on an assessment of risk
and no release until the risk is acceptable.
75. What do you say to the argument that a politician is
better placed than a judge to make that assessment?
(Lord Bingham of Cornhill) The assessment of risk
is a matter for the Parole Board as it is with a discretionary
life prisoner and as it now is with a young murderer. The Parole
Board is a very expert body, it does not take risks. The reason
why so few mandatory life prisoners once released are recalled
is because they were never a long-term danger anyway.
76. Or to the argument, perhaps a fairer one, that a politician
is better placed to judge what is acceptable to society than a
judge.
(Lord Bingham of Cornhill) I addressed that question
in my lecture. Risk apart, the question of punishment should be
determined at trial. Subject to any application by the Attorney
General to increase the sentence or any appeal by the defendant
to lower it, the punishment, if it is right today, cannot be wrong
in 30 years' time. It ought to be, as I suggest, decided once
and for all and it is really wrong and immoral and constitutionally
objectionable to wait for 30 years and then say that the public
is still very hostile to this person because of course it is then
open to the media to make absolutely sure that the public stays
very hostile to the person by whipping up a campaign the moment
there is any question of releasing anybody. I wish to emphasise
that I am not talking about any particular case. I am talking
about the matter very, very generally. I accept that cases will
arise. We could all probably think of them, in which it is right
that somebody should never be released and it would be open to
the judge so to rule.
77. What do you say to the argument, which I think I heard
the Home Secretary advancing in response to your speech the other
day, that recent history recorded that prisoners who had been
released on the say-so of a Minister had proved less likely to
have to be recalled to a life sentence than those released on
the say-so of the Parole Board?
(Lord Bingham of Cornhill) That is exactly what you
would expect for this reason: people who are given discretionary
life sentences are so sentenced because the judge apprehends a
continuing risk from them and they are the people who are ultimately
released on the sole decision of the Parole Board. The reason
why there are relatively few recalls of mandatory life sentence
prisoners once released is because they are not dangerous and
they never were, nobody could ever have thought they were. I choose,
simply because he is a good example, Private Lee Clegg.
78. Do you think in practice that the length of time served
by convicted murderers, if the present system were changed, would
be very different from those served now?
(Lord Bingham of Cornhill) The judicial recommendations
would remain very similar to what they are now and I have given
an indication as to how the judges would set about their task
if life were a discretionary maximum rather than a mandatory sentence
with a benchmark figure. We could all argue about what the benchmark
figure ought to be for what I described as the unexceptional murder,
that is the murder without any notable features which either aggravate
or mitigate it. Then the period would be greatly lengthened up
to life itself for features which are peculiarly vicious and objectionable.
I give examples which are not comprehensive. There are other factors
going the other way which mitigate it. It is a very interesting
fact, which I did not know until I had occasion to study the report
of the Royal Commission on Capital Punishment 1949-1953, that
throughout the early years of this century there were people sentenced
to death for murder, reprieved and released in a year or two years.
I think I am right in saying, but I should have to check this
to be totally certain, that that continued up until about 1950,
people serving less than two years. There is virtually nobody
now who serves anything like as short a period as that.
Mr Howarth
79. Upon whose authority were they released?
(Lord Bingham of Cornhill) On the Home Secretary's
I have no doubt.
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