Examination of Witnesses (Questions 20-39)
1 JULY 2004
RT HON
LORD WOOLF
AND MR
KEVIN MCCORMAC
Q20 David Winnick: Were you really surprised
about the controversy arising from your speech in December 2002?
Lord Woolf: I was taken aback.
Perhaps I should not have been, but I was.
Q21 David Winnick: Was that the first
time?
Lord Woolf: No, there have been
occasions before. I have past convictions.
Q22 David Winnick: Perhaps that is a
reason why some judges believe they should have spin doctors.
Everyone else has spin doctors, why not judges?
Lord Woolf: I think that would
be a terrible mistake. I think the public would not want judges
to have spin doctors. They would prefer that we do what we do,
give our judgments, set out the reasons and then in time the public
attention moves on.
Q23 David Winnick: I want to ask you
about the prison population. You are concerned about the number
of people in prison, are you not?
Lord Woolf: I am.
Q24 David Winnick: It is the highest
now that it has been for some considerable time, is it not?
Lord Woolf: I think it is higher
now than it has ever been.
Q25 David Winnick: Is there any particular
reason why that should be so?
Lord Woolf: I think it is for
a series of reasons.
Q26 David Winnick: It is over 75,000.
Lord Woolf: I believe, fortunately,
just recently, there has been an indication that the increase
has flattened out. At the moment I am not being too optimistic
about that because the Home Office has very substantial expectations
of increases.
Q27 David Winnick: The figure remains
over 75,000 despite the slight dip.
Lord Woolf: I was not even saying
it had taken a dip; I was saying that the increases are not continuing.
Q28 David Winnick: Do you feel more could
be done to try to reduce the population or, in view of the criminality,
is it unlikely to occur?
Lord Woolf: The public's confidence
in the criminal justice system is critical. It is no use us taking
steps which will cause the public to distrust the court system.
They have to have as much confidence in that as possible. A key
to it is to show the public that we do have alternatives to using
imprisonment for those offences for which that is an appropriate
resort. I am particularly referring to offences which are not
of the most serious nature; offences which on the whole do not
involve violence, but even in cases which involve violence there
are going to be occasions when it is appropriate not to use a
custodial sentence. If we are then able to show the public that
the person who did, for example, have to do X number of hours
to repay his crime in the community has then put crime behind
them, then that is a positive statement. I had reason to investigate—because
there was a public concern about it and it was a matter mentioned
by ministers—a particular crime which did involve violence
where the person was not sent into custody and the judge was criticised.
When I looked into the facts of the case it is my belief that
if the public had known the facts and if the press had known the
facts they would have said that that did make sense. It was a
young man who had never been in trouble before, he had a job,
he was ordered to pay compensation to the victim; he had himself
turned up at a police station and confessed that he had been responsible
and it might not have been detected otherwise. There were all
these matters in his favour and although the judge in that case
said, "My guidelines say I should send you to prison and
I normally would", but looking at the whole of the circumstances
here he felt he was able to impose a long period of community
compensation plus an order for costs and so that was the decision.
That was a course which I thought was proper and explains that
we have to be very selective on how we use punishment in prison
and we should only use it when it is necessary.
Q29 David Winnick: The public generally—and
perhaps politicians—do not have much confidence in non-custodial
sentences. They believe that the person who is so-sentenced may
or may not turn up somewhere or other at weekends, do a bit of
gardening and that is it. The new Criminal Justice Act is putting
more emphasis on community and mixed custody and if the prison
population is to be reduced, is it not necessary for the public
to have their confidence restored—or at least given if it
was not there before—that non-custodial sentences are not
just a skive but will mean that people will turn up and lose a
good deal of their free time at weekends and perhaps in the evenings
and do a proper job of work and not put the situation down.
Lord Woolf: I could not agree
with you more. I would just add there that one of the things that
is happening on the ground which is very important is that our
supervision of community punishments is improving substantially
from the information I am being given. I feel that is critical
because if a court makes a punishment order and nobody follows
up whether the punishment is fulfilled, that does not work. In
the case I was just mentioning without identifying, I was particularly
pleased to note that the judge said, "If you break the terms
of this order you are coming back before me and I am going to
ask for regular reports as to how you are doing during the period
of this." That is the sort of thing that has got to happen.
Q30 David Winnick: Should all judges
do that when they give non-custodial sentences?
Lord Woolf: The trouble is at
the moment that is not easy to do, but you can do it for a special
case.
Q31 David Winnick: Are you going to recommend
that to your fellow judges?
Lord Woolf: I recommend that,
yes.
Q32 David Winnick: Are there any grounds
that if someone commits a crime he should receive a different
sentence because of various different and wider family circumstances,
whatever the case may be? For instance, the most obvious example
is women with young children.
Lord Woolf: I think those are
the circumstances a judge must take into account. Whether a judge
is able to or not depends on the facts of the case. It is very
important because depriving the child of a carer at perhaps a
critical period of its upbringing will have a deleterious effect
on that child. If we do not take into account the effect on the
child the result may be that we are just bringing up another generation
of offenders.
Q33 David Winnick: Are you reasonably
satisfied that that is taken into account?
Lord Woolf: It is good sentencing
practice and I am sure it is.
Q34 David Winnick: There is a disproportionate
number of prisoners from minority ethnic groups. Someone might
say—perhaps yourself—if a crime is committed, regardless
of race or ethnic background, that is it and sentences are given.
Do you feel there are any possible justifications over the years
of a bias in sentencing?
Lord Woolf: There is no possible
justification for a bias in sentencing. I think we have to have
the figures which indicate that there is a greater percentage
of those who are probably from ethnic minorities in prison very
much in mind so that we can ensure that we do not sub-consciously
do things which we might not do to those who do not come from
ethnic minorities.
Q35 David Winnick: Judges of course—and
we accept that as politicians—can be criticised from both
ends: longer sentences and more people in prison and then a criticism,
sometimes from our own constituents, that too many people who
should be in prison are not in prison. One does understand the
problems of you and your colleagues on the bench. However, over
a period of time—say over the last ten years—it seems
that sentences of imprisonment have become more frequent and longer.
Is that because of the general reaction in the country about criminality?
Lord Woolf: I think the reaction
in the country is part of the explanation although there are a
whole series of things that I could identify, including—if
I may say so, and this is a matter we all have to take into account—guidelines.
Guidelines tend to stop judges taking the sort of chance they
might have taken had there been no guidelines. They feel that
there it is, that is what the guidelines say and they had better
do that. Sometimes you should not do that; you should say, "Well
it is a person with a bad record but this is just the right time
that he or she might respond to a different way of dealing with
it". If you can identify those occasions you are a really
good sentencer. The guidelines are one thing, but also a whole
lot of other things are happening. We now have the Attorney General's
references if the sentence is unduly lenient. The Attorney General
has the public clamouring to him and saying that that sentence
is too lenient and he brings cases on appeal. Judges then say
that there is not much point in taking a chance at all if what
is going to happen is that the Attorney General is going to come
and take the person to the Court of Appeal and they go to prison
then. Parliament continually puts up the maximum punishments for
particular crimes; I cannot remember a time when it brought it
down. There are many, many factors which can be identified which
have the tendency collectively to increase punishment and other
countervailing influences are not as strong. There is also a vicious
circle in relation to community punishment. Why we do not have
more supervision of community punishments is because we have to
pay for so many people in prison. You have people in prison who
do not really need to be there—the cost of which is very
high—who often would make a substantial contribution in
having another probation officer. When somebody is sentenced to
community punishment, if the community sees that there is no punishment
at all, that they do not turn up for whatever they are asked to
do, that naturally destroys the confidence of the public in that
way of dealing with things and I do not blame them.
Q36 David Winnick: The Justice Act that
I mentioned does put much more emphasis on mixed custody and community
sentencing.
Lord Woolf: Yes. Custody Plus
and intermittent custody.
Q37 David Winnick: Do you think that
is a positive step?
Lord Woolf: Yes, I do.
Q38 David Winnick: I have one more question
which I hope will not be misunderstood, judges are often said
to be totally out of touch with the general public and they live
in a very closed world, even as senior barristers if not junior
ones, and as they progress even further to the bench and the most
senior positions on the bench—nothing to do with yourself
as such—they are out of touch with the general population.
What would be your reaction?
Lord Woolf: You would be surprised
if I said that I subscribed to it. The fact is that I think that
is over-done. The judge does have to hold himself apart from the
public generally because it is very important that he behaves
in a way which is compatible with the job that he does. However,
judges today live in the community; they travel to work by underground
or bicycle. If you go in the door that I go through at the RCJ
there is a row of bicycles there all being used by judges going
there. I am afraid that until I got to my status and get spoilt
with a car, I used to bicycle to work; it was much healthier.
Q39 Chairman: On the Criminal Justice
Act, we are told as members of this Committee that the Probation
Service is under a great deal of pressure, they do not have enough
staff, that there are great worries about the implementation of
the new offender management system. To what extent when you are
chairing the Sentencing Guidelines Council are you going to be
under an obligation to take into account not just the theory of
whether there are community alternatives to custody but whether
in practice there are sufficient probation staff there to actually
implement those sentences? Will your guidance reflect the reality
out there of whether those alternatives actually exist rather
than just being there in parliamentary legislation?
Lord Woolf: This is quite a controversial
subject. If you rephrased your question: "Should you take
into account the number of people in prison and the overcrowded
state of our prisons?" there was a school of thought who
said, "What is happening out there is not for us, it is for
the Government; it is their job to provide the probation officers,
it is their job to provide the prison places and if they do not
do it then the public will take it out on them by not re-electing
them as the Government next time." I do not take that view.
My view is that you cannot shut your eyes to the situation on
the ground and I cannot expect judges—and I would not want
judges—to pass a community sentence if they know it cannot
properly be policed by the Probation Service. That is why I am
urging that we should have properly policed community punishment
and, as I understand it, it is the policy of the Government that
that should happen.
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