Examination of Witnesses (Questions 1-19)
1 JULY 2004
RT HON
LORD WOOLF
AND MR
KEVIN MCCORMAC
Q1 Chairman: Good afternoon, Lord Woolf
and Mr McCormac. Thank you very much for joining us for this one-off
evidence session about the Sentencing Guidelines Council. Could
I invite you to make any statement to the Committee before we
begin?
Lord Woolf: Just a short one,
if I may. Could I say first of all that I am grateful for the
opportunity to talk to the Committee about the Sentencing Guidelines
Council? Without suggesting that it is going to lead to revolutions
or anything of that nature, I do believe that the establishment
of the Sentencing Guidelines Council is a very important development
in relation to criminal justice and could be a very positive development.
I also believe that the innovative idea of a sentencing body having
a dialogue with this Committee could be very important. The task
of the Sentencing Guidelines Council as I see it is to produce
a new comprehensive code of sentencing guidelines. Sentencing
guidelines have a respectable history in this jurisdiction but
the sentencing guidelines that we have had hitherto are primarily
those which were made by the Court of Appeal Criminal Division
to guide the sentencing practices in relation to certain areas—but
no means all areas—of their jurisdiction in respect of crimes.
The Court of Appeal's contribution was a reactive one rather than
a proactive one. It arose from the cases that came before it and
as a result of those cases coming before it, if the Court of Appeal
thought that it would help to have clarification as to the sentencing
in a particular area of crime then they would issue guidelines.
Initially they did it all by themselves and they were very much
really just reflecting a series of decisions that had taken place
already and bringing them together so that we did not have to
search through lots of law reports to find what was the guidance;
we had one place which would tell you the position. Then the court
had the assistance of an expert body with a broad range of members
in the Sentencing Advisory Panel. I do not think it is any secret
that the judges were a little bit nervous first of all at this
initiative because they have always taken the view—which
generally I agree is still the position—that Parliament
provides the outer framework normally for sentencing and it is
the job of the judges to determine the sentencing within that
outer framework. We found that the work that was done by the Sentencing
Advisory Panel has contributed very much to the ability of the
Court of Appeal to provide valuable guidelines for the benefit
of the judiciary. The guidelines the Court of Appeal gave were
for the benefit of the judiciary and that, in a way, was a problem
because they were expressed in terms that would be understood
by the judiciary but were not necessarily understood either by
the media or the public. I was the author of guidelines in relation
to burglary which spoilt my Christmas holiday because they were
issued just before Christmas and caused consternation, but I believe
consternation which was quite misplaced because they were really
reflecting first of all the advice of the Sentencing Advisory
Panel but also they were reflecting the standards which the judiciary
had been adopting up to that time. They were not very novel so
I was taken aback completely by all the fuss that ensued and that
illustrated another problem with the process as it was then. Under
the new legislation the Sentencing Guidelines Council is going
to have the job, over a period of time, of producing comprehensive
guidelines and still has the benefit of the advice of the Sentencing
Advisory Panel. A very constructive relationship exists between
the Panel and the Council already. The Chairman of the Panel comes
and attends the meetings of the Sentencing Guidelines Council
and they share the same secretariat. There is no conflict in their
sharing the same secretariat because the Panel is, so to speak,
the expert body advising the Council. That brings me to the position
of the relationship with Parliament of this new Council. I fully
understand and accept that what happens in our courts in relation
to sentencing is of the greatest concern to Parliament and rightly
so; they are interested in what is happening with the justice
system because they know its importance to members of the public.
It seems to me that considerable benefit will be achieved by a
dialogue which I feel confident will be constructive between the
Sentencing Guidelines Council and this body, and I see this body
as being a bridge between Parliament and the Sentencing Guidelines
Council. It may be that if that works well it will take away from
the policy of sentencing some of the political controversy which
sometimes has been unconstructive. I hope it will be an important
relationship in that way. Certainly we in the Council will do
everything we can do to cooperate with this Committee and provide
them with the information they need so as they can play their
role; the nature of that role is not for the Sentencing Guidelines
Council but for the Committee. The other thing that I think is
helpful is that the Sentencing Guidelines Council has come into
being at the same time as the Criminal Justice Act is coming into
force. The Criminal Justice Act of 2003 I regard as a very constructive
Act in many respects. Quite apart from the Sentencing Guidelines
Council it sets out the purpose of sentencing in a statutory form;
in addition it sets out approaches to judging the seriousness
of crimes and what you have to take into account in that regard.
It provides a machinery whereby, if the guidelines are issued
by the Council, you can rest assured that the judiciary will be
giving effect to those guidelines first of all because Parliament
says they should have regard to the guidelines and the judiciary
does apply the law as it is laid down by Parliament. Secondly,
although the judiciary are rightly given a wide discretion, the
discretion is important. The Sentencing Guidelines Council helps
towards consistency but in sentencing you cannot always be consistent.
The art of sentencing is tailoring the punishment to fit the individual
circumstances of the case the judge has before him. It is very
important that the discretion of the judge to apply the right
sentence—which can be interfered with if necessary by the
Court of Appeal either on reference by the Attorney General or
by the defendant appealing—is maintained. In the majority
of cases that is the position generally in our law. The other
thing is that to some extent the sentencing guidelines will provide
a protection for the judiciary. A person might say a sentence
is outrageous and the judge must be off his rocker if he or she
passes that sentence, but the judge can say, "Look, I either
applied the guidelines or I did what was required under the Act.
I did not apply the guidelines but I explained why in this particular
case it was not appropriate to do so". I do not know whether
that is helpful.
Q2 Chairman: That is very helpful indeed.
It certainly sets the scene for the questions we will have this
afternoon. I think the members of this Committee are quite mindful
of the fact that whilst we have all participated as members of
Parliament in doing what you say—set the anchor limits of
the system, up until now the maximum sentences and things of that
sort—for the first time we, as members of Parliament on
behalf of Parliament, will be involved in nuances of sentencing
guidance and certainly that is a role that this Committee will
take extremely seriously in the months and years to come. Can
I follow on your opening statement and just ask a couple of questions.
In your first few words you said that the Sentencing Guidelines
Council could be a critically important part of the Criminal Justice
System. Could you set out for the Committee what you think the
factors are likely to be that enable the Sentencing Guidelines
Council to fulfil the full potential you set out this afternoon
and what, in broad terms, are the things that could go wrong in
the new system.
Lord Woolf: I would rather look
at the positive side rather than the negative side. I think the
guidelines will work if, first of all, we are given the time to
produce the guidelines and given the resources to do, through
the Panel, any research which is necessary for the purposes of
informing the guidelines that are made and that furthermore, when
we make guidelines then, if I may say so, Parliament exercises
a certain degree of restraint and does not rush in and change
the world by legislation. The great difference between the guidelines
approach and the parliamentary approach is that sometimes Parliament
feels it is absolutely essential to react to public outrage about
a particular offence. They then want to see that the sentencing
for a particular offence is very serious. That is understandable.
Parliament does that; the courts give effect to it. However, what
I would hope is that by having—especially once a code is
developed—a code which is of the required level of guide,
something that takes into account the considerations that Parliament
has asked us to take into account, Parliament will be more restrained
and will leave it to the Sentencing Guidelines Council because
there have been instances where legislating in haste has not been
necessarily the most constructive way of dealing with the situation.
I want to see the Sentencing Guidelines Council providing guidance
as to the use of the new community sentences which are contained
in the Act which are providing punishments which are an alternative
to custody. What is undoubtedly adversely affecting the criminal
justice system is the fact that up until now we have had an ever
increasing prison population during my judicial lifetime. It has
been continuously rising. What has happened is that the resources
which could be used in having really effective community punishments
are deployed in warehousing an ever increasing prison population.
I am very much in favour, if the offence justifies it, for people
to be imprisoned; the question is, whether using prison, which
is an expensive resource, is an effective way.
Q3 Chairman: Is it fair to say then that
in a sense part of the price that Parliament and MPs have to pay
for the decision to set up the Sentencing Guidelines Council is
that actually we need to be more restrained in criticising the
decisions that judges may make in individual cases.
Lord Woolf: I hope that the parliamentarians
will find that the investment they have made or the price they
have paid for the Sentencing Guidelines Council is well worth
while because they will feel less need to make criticisms because
there will be a much more public explanation of the guidelines
indicating what they do. I anticipate there will be an opportunity
to explain to this Committee why guidelines have been framed in
a particular way. That, I think, would be very useful.
Q4 Chairman: One of the big changes as
you have explained is that the guidance will now cover the whole
range of crimes and not just those that happen to go the Court
of Appeal. However, what we have actually got is a Sentencing
Advisory Panel which will now have a broader remit because it
will cover far more cases. Is there really likely to be any substantive
difference between what the Sentencing Advisory Panel recommends
and what the Sentencing Guidelines Council actually produces at
the end of the day? Or is the second stage in this and all the
consultation that we will take part in as a Committee on the draft
guidance all a bit of a show? Is the Sentencing Advisory Panel
really going to be the substantive guidance that we get? If not,
what difference do you expect the Council itself to make and what
difference do you expect the consultation with people like ourselves
to make?
Lord Woolf: Can I first of all
tell you the relationship between the Sentencing Guidelines Council
and the Panel? The Sentencing Guidelines Council will pay close
attention to what the Panel advises. The Council is an independent
body and will make its own decisions. We have recently had the
Advisory Panel's report on robbery. That is one of the first reports
we have had to consider. There are parts of it which the Council
were unhappy about and they sent it back to the Panel to look
at it again. That is a healthy process. We have the Chairman of
the Sentencing Advisory Panel sitting in when the Council is discussing
things. He hears what their views are so I hope we will work closely
together as I believe we are already doing. There are going to
be different views and while the Panel has a broad range, it has
not got the same membership of people as the Council has and the
Council will not just act as a rubber stamp. Equally I am not
asking this Committee to act as a rubber stamp; I am sure I would
not have much expectation of that actually happening. You will
examine what we do and again the dialogue will be very useful.
By discussion and explanations the guidelines are going to be
improved and also the understanding of what the Council wants
to do.
Mr McCormac: It may be helpful
to add that the Panel tends to consult on a wide range of general
questions. By the time the Council has formulated a draft guideline
to involve this Committee you will have a much more specific outcome
on which to consider. It was considered that, given the timescale
and the other demands on the Committee, having some things fairly
specific to consider would be helpful to the Committee and would
produce a much more productive discussion.
Q5 Chairman: Are you able to give us
a flavour of the sorts of issues that the Sentencing Guidelines
Council would want to have another look at, for example in the
case of the robbery guidance? Presumably the Sentencing Guidelines
Council took into account some broader factors and maybe some
different issues than those looked at by the Sentencing Advisory
Panel.
Lord Woolf: The experience of
the Sentencing Guidelines Council is different from that of the
members of the Sentencing Advisory Panel. If I could just for
a moment focus on the judiciary, on the Sentencing Advisory Panel
there is a judicial presence, but it is a limited presence. On
the Sentencing Guidelines Council you have a substantial presence
of the judiciary, particularly those who are experienced in dealing
with crime. Besides myself there is the vice-president of the
Court of Appeal Criminal Division and we have Lord Justice Kay
who is also a very experienced judge. We also have judges at different
levels including a magistrate; they come from right through the
system. We have judges who have personal day to day experience
in applying guidelines. We want guidelines that we know will achieve
the objectives which we seek to impose and they have to work.
Q6 Chairman: If the Secretary of State
makes representations to the Council will those be made public?
Lord Woolf: We intend, as a Council,
to make any matters that are put before us public, including communications.
The Secretary of State would presumably understand that that is
our approach and that would happen if he did make communications
to us.
Q7 Chairman: How many years is it likely
to take before we have codified guidelines for all sentences and
for all criminal courts?
Lord Woolf: It is a big job. The
Secretary has an idea in his mind, but could I just say a word
before he gives you his estimate on this. I see the Council doing
two things. One is working out the long term objectives and the
code and that is a number of years. I would not want to pin myself
down to a number but I would hope there would be a real contribution
within five years or that sort of figure. In addition it will
be responding to changes in legislation and producing guidelines
which are needed urgently. The fact that it is going to take the
sort of period I am indicating is not a matter of serious concern
because already there are the Court of Appeal guidelines and we
would want to bring those together in a way in which they are
not at the moment so that they are available and as our guidelines
are produced there will be a combination of the Court of Appeal
guidelines plus the Sentencing Guidelines Council guidelines so
a corpus will be building up in that way. Eventually I see the
Court of Appeal guidelines all being replaced by the Sentencing
Guidelines Council.
Mr McCormac: I think there are
something in excess of two thousand different offences that regularly
come before the courts, many of those relatively infrequently.
Certainly I think within the space of the next two years there
will be a significant body of guidelines coming out from the Council.
Three years beyond that hopefully the vast majority of the most
significant matters will be subject to the new guidelines which,
of course, will reflect the new framework introduced under the
Criminal Justice Act as that Act gradually comes fully into force.
Q8 Chairman: It is a bit like painting
the Forth Bridge, is it not? Do you have a sense yet of how often
you are likely to have to revisit guidance because circumstances
change, public policy changes, possibly public attitudes to particular
types of crime change which demand a different sort of response?
Lord Woolf: As far as that is
concerned, I do not think there will be a need to quickly return
to the guidelines being given other than perhaps to alter or amplify
a particular guideline because it is found through experience
or the use of it in the courts it is not working as well as it
should. The majority should stand for some time. That has been
true of guidelines given by the Court of Appeal Criminal Division.
At the top end of offences, the very serious armed robberies,
the guidelines are of quite a considerable age now.
Q9 Mrs Dean: Lord Woolf, you commented
earlier on the need for the cooperation of this Committee. Could
you expand on what kind of input from Parliament the Council would
welcome?
Lord Woolf: I would particularly
like to hear the reaction of parliamentarians to the guidelines,
and also I would like them to be saying to us that the order of
business we seem to be adopting seems not to be tackling the things
it should be tackling. You would then tell us what to tackle.
Those are two areas and I am sure there are many more areas where
you would like to make suggestions.
Q10 Mrs Dean: Would you agree that it
might be mutually beneficial for you and your successors as Chairman
of the Council to give evidence to this Committee following the
publication of the Council's annual report each year?
Lord Woolf: I would have thought
that would be very useful. I would expect that to be something
that the Committee would want.
Q11 Mrs Dean: Do you believe that at
the moment judges feel under pressure from the media and politicians,
and will that be reduced by the new system?
Lord Woolf: I think the answer
is "yes" to both points.
Q12 Chairman: You talked earlier, Lord
Woolf, about commissioning research to inform the Council and
the Panel. Are your resources adequate at the moment to commission
the type of research you think is necessary to form the guidance?
Lord Woolf: We really are at too
early a stage to take any firm view of that but we understand
there will be the resources available for that purpose and I believe
the Secretary has already been in communication with the Home
Office on that issue.
Mr McCormac: Yes, we have sufficient
resources for the current financial year and we are currently
negotiating with the Home Office. A significant change in the
expectations has come about as a result of the Carter Report and
the government response to it. In the light of that we have sought
to expand the capacity of the Council and the Panel in these areas.
Q13 Chairman: What sort of research have
you been commissioning?
Mr McCormac: The Panel in the
past has adopted two routes. One has been to make use of the resources
available through RDS within the Home Office and considerable
use has been made of that. On other occasions though it has commissioned
its own research through external sources. One of the most significant
of those pieces was in relation to its advice on rape where there
was substantial research amongst the wider public which was done
through external sources. There will be a range that will be adopted.
Some will be simply making use of existing research that has been
done and within the secretariat we will have the capacity to undertake
what is being called "the intelligent customer function".
There will be others where the Council or the Panel wish to commission
its own research; within the Panel certainly there is considerable
access to research that is currently underway in both the academic
and wider community.
Q14 Chairman: Obviously it will vary
from crime to crime, but can you give us a better idea of what
are the main questions you are looking into in this research?
Is it, what is the public attitude towards this sort of crime?
Or is it the evidence on re-offending rates or evidence on current
sentencing practices? There must be, I guess, a fairly standard
set of questions that you would tend to ask in drawing up a set
of guidelines.
Mr McCormac: Certainly there are
standard questions in the sense of what is the current practice,
what has the thinking in the past produced and what is the rationale
behind it? When you come to deal with specific offences there
will be the other issues that you have described. What are the
public views? Going back to the rape situation, one of the critical
questions there was the attitude to rape by stranger compared
with rape by a person known to the victim. One of the things the
Panel was particularly interested in was whether the public at
large felt that the one was more serious than the other or not.
There was a very productive outcome to that.
Lord Woolf: I feel that in a way
the Council will have to be proactive and one of the things I
think is very important is that we concentrate on what are the
effective sentences for dealing with different situations. The
Council have to be concerned with the protection of the public
and one of the ways you can protect the public is by sending people
away from situations which lead them into crime. Those are matters
which, as I see it, the Council will need help on.
Q15 Chairman: We talk a lot about evidence
based guidance, but evidence based depends an awful lot upon the
question that you ask. I am trying to get the sense of balance
in evidence base in between, for example, protection of the public
as you might judge by the offending; or a different question might
be, how do we most satisfy the public who might want to see people
punished harshly for certain types of offences. I think it is
very important for us to be clear, when you talk about evidence
based sentencing, what the question is that you are trying to
answer.
Lord Woolf: I do not think we
should be dominated by what would satisfy public clamour. I do
think we should be concerned about the victims of crime to a very
real degree. I think it is also very important that we find which
punishments in the community can produce evidence and then have
that evidence available to show that they do provide protection
to the public. It is my belief that if we manage to achieve that,
that will make the public more prepared to accept punishment in
the community as being able to be constructive. Then, of course,
as we all know, a lot of crime is either drug or drink related
and if a person is committing crime to feed a habit, the best
ways of diverting him from that habit are a matter of the greatest
importance to the courts. Just finding out what is working well
in other jurisdictions can be very important because there is
no need to re-invent the wheel if somebody else has already found
matters that are constructive. There is also a need to monitor
what are the consequences of using those particular punishments
and the monitoring could lead us to be able to use our powers
of punishment in a more constructive and effective manner.
Q16 Chairman: In a recent speech you
said that "for many years now the public have had little
confidence in the ability of our criminal justice system to ensure
that justice is done". Are you being over-optimistic in the
extent to which you think the public will be persuaded that the
criminal justice system is now better because we have more robust
and evidence based guidance? Is there not a danger that the public
will still be swayed by the most recent, most high-profiled and
most controversial case that is being reported?
Lord Woolf: My experience is that
when you explain to the public what the courts have done in a
particular case and why they have done it, on the whole they understand.
Where we suffer is that the public have a misconception of what
level of punishment the courts are in fact imposing. The public
aspect of the Sentencing Guidelines Council is not to be underestimated.
It provides information into the public arena and I hope it will
influence the media.
Q17 Chairman: How do you suggest the
Council goes about that role? Are you going to have an information
office or a press office or dedicated people whose job is to work
with the media and explain your guidance and where it has come
from?
Lord Woolf: At the moment we do
not have any information office of our own but we do have in-house
experience which enables us to make issue publications which will
explain what the Council is up to and why it is doing it. I hope
that will be generally available and I hope that will make a contribution.
Q18 Chairman: A moment ago you said that
the Sentencing Guidelines Council should not respond to public
clamour which I understand. We have had evidence in the course
of the current inquiry we are doing on prison regimes and from
elsewhere suggesting that there may not be quite such a clamour
for harsh sentences as one might gather by reading some of the
tabloid newspapers. Is there not a case for making sure that part
of your evidence actually improves robust evidence on what the
public do feel about sentencing so that we and others can see
that that has been effective in the overall guidance?
Lord Woolf: As you heard from
the Secretary, we are already seeking to obtain that evidence
and did so in regard to rape. That was an attempt to find out
what the public attitude is. I think that is a very important
part of our work. What I was worried about is the excitement that
can be generated by a particularly horrendous crime which can
distract attention from other things that are happening.
Q19 Mrs Dean: You mentioned earlier the
disaster in media terms regarding burglary guidelines. How in
practice can such disasters be avoided under the new arrangements?
Would it be solely some form of information officer or are there
other ways?
Lord Woolf: If you issue guidelines
as part of a judgment then you are inhibited as the judge from
meeting the press and discussing a case which you have actually
been involved in. It is one of the firmest rules that we adhere
to. Judges give their judgment and then leave their judgment to
speak for itself and they do not go out and meet the press and
explain what they are doing. They do not have a public relations
officer who will explain the judgment. All the public relations
officer can do is hand the press a copy of the judgment. If one
anticipates that a judgment is going to be controversial, it is
my practice to produce a small or potted version of the judgment
drawing attention to the basic facts because you cannot expect
the media to read fifty pages before they get their story. That
helps, but it is a real inhibition. With the Sentencing Guidelines
Council we do not have those inhibitions. We can explain beforehand;
we can invite members of the media who are interested in the particular
event to come and discuss the matter and explain what it is doing,
what are the offences it is suggesting should be dealt with by
punishment in the community, and when we talk about punishment
in the community, what sort of punishment? Again, who is that
punishment going to be for? It is the ability to talk and explain
like that which is another advantage of the Council. The Council
is not going to change the world; the Council is not going to
be able to avoid campaigns which the media think are right to
conduct and we would not seek to do that. They have a job; we
have a different job. At least we can get out there and try to
explain what we are doing in a way which was not possible before
and that, I think, is important.
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