Examination of Witnesses (Questions 40-53)
1 JULY 2004
RT HON
LORD WOOLF
AND MR
KEVIN MCCORMAC
Q40 Janet Anderson: Lord Woolf, you have
talked a lot about community sentencing and the problems of resources
to supervise that and so on. Do you think there is a case for
greater use of what I would describe as "weekend sentencing"
so that people do receive a custodial sentence but simply have
to report and serve that at weekends as I believe happens in some
other countries and you would not then have the need to supervise
the community sentencing as well.
Lord Woolf: There is something
to be said about that. It is quite a difficult thing to organise
successfully especially with our prison system at the moment we
do not have suites of cells which are just opened for weekend
attendance and if you are going to put some more in at weekends
you would have to let some out so that they could get in at weekends.
I think that tagging is proving a very useful alternative. Why
do the public say that prison is effective? Because the person
loses their freedom. If you can make sure that they cannot leave
their home except for the times when they are going out to work
that can be a form of custody which interferes with their liberty
almost as much as being in prison and it is a much cheaper way
of doing it.
Q41 Mr Prosser: In a recent visit of
this Committee to Germany in the course of two days we met a prison
governor of a prison which had a very good record in terms of
very low levels of violence and very low levels of escape. The
prison governor had been a former high court judge or the equivalent.
The next day we met the head of judicial administration who had
been herself a prison governor in the past. We got the impression
that there was a fair deal of cross-fertilisation going on. In
fact, the governor said he felt uncomfortable about any judge
sending anyone to prison unless that judge had intimate experience
of the regime of being in prison. Do you think we should adopt
that cross-fertilisation in this country?
Lord Woolf: The difference between
Germany and this country is that their judges are career judges
so you have young judges appointed at an early stage into the
public service and you can use them as prosecutors and in different
ways and they get a breadth of experience in that way. In this
country where we have many fewer judges than in Germany we do
not use our judges that way. Our judges are appointed from the
legal profession later in life so with the greatest respect to
some of my colleagues they would not be appropriate people to
run a prison, not least because they could not run as fast as
the prisoners. Having said that, the knowledge of what happens
in prison is very important to any judge who sentences. Whenever
I have the opportunity I go to prisons in this country and abroad—indeed
my wife is fed up with me because when I take her on holiday I
take her off to a prison; she sometimes says that I know how to
give a girl a good time—and I have visited prisons all over
the world. I think it is very important to see how they work but
I just do not think, because of the nature of our judiciary that
it would work in the same way. Magistrates go to prison and they
see them and it is very important they should do so. There is
a double benefit. First of all it has an effect on what happens
in the prison but it also has an effect upon judges. I think it
is very salutary.
Q42 Mrs Dean: Lord Woolf, is there evidence
of disparity in sentencing between different parts of the country?
Lord Woolf: There is some evidence,
especially in relation to the magistrates. I am cautious about
figures in that regard and I do not necessarily assume that is
right. One of the purposes (and I emphasise "one of the purposes")
of the guidelines which will apply to magistrates for the first
time—because they had their own guidelines before—is
to increase consistency in sentencing. Sometimes there are local
explanations. If you have a prevalent offence in a particular
locality I am in favour of the judges being more severe because
sometimes that is necessary. Of course, in different types of
areas you have different types of crimes so the pattern across
the country is going to be different. However, having said that,
as the Carter report showed that there are disparities which are
not easily explained in a satisfactory manner and I think we do
have a problem in that regard.
Q43 Mrs Dean: Could you tell us how consistency
will be monitored under the new guidelines?
Lord Woolf: We will have to see
how it works, but under the guidelines Parliament requires the
judge to say whether he has applied the guidelines first of all
and secondly, having applied the guidelines he does not follow
them, why he does not follow them. Then it will be set out there
to be seen and it will be much easier to detect inappropriate
sentencing practices. I think we have to couple that with appraisal
and monitoring.
Q44 Mrs Dean: Will there be extra judicial
training to deal with sentencing guidelines?
Lord Woolf: That is what I should
have mentioned as well. Training is very important and fortunately
the Judicial Studies Board is becoming very sophisticated with
its judicial training.
Q45 Mrs Dean: Will prosecutors be reminded
of their duty to draw attention to the guidelines?
Lord Woolf: I am very much in
favour of that. I feel that should be a very real responsibility
and I know the Director takes the same view as does the Attorney.
Q46 Mrs Dean: With so many new sentencing
options in the process of being introduced following recent legislation,
will the Council not be aiming at a moving target in trying to
ensure consistency?
Lord Woolf: A change in culture
does not happen overnight, but I believe we should be able to
improve the situation within a reasonable period.
Q47 Janet Anderson: Lord Woolf, if we
could just move to the Council's timetable, the Committee has
been given a provisional timetable by the Council so we are aware
of the draft guidelines to come out in the next few months. Could
you perhaps tell us who decides on the priorities and is there
any kind of rationale behind the order in which you are going
to consider particular offences?
Lord Woolf: Primarily it is a
matter for the Council, but if the Home Secretary asks us to consider
a matter and indicates it is urgent and why, we obviously pay
the greatest attention to that and we will take it into account.
As to the order, because we are in the business of sentencing
ourselves day by day we know the areas where there is the most
difficulty. We identify those areas and we will prioritise those
areas where there is the greatest need.
Q48 Janet Anderson: Is the timetable
working according to plan? We understand, for example, that the
draft guidelines on robbery may have taken longer than expected
to be agreed. Do you anticipate the Council needing a number of
meetings to agree draft guidelines in relation to particular offences
and, if so, in relation to which offences?
Lord Woolf: It is very difficult
to anticipate. At the moment I think that we anticipate being
able to keep to our timetable.
Mr McCormac: It will be very difficult.
There was another advice from the Panel on the reduction to be
given for a guilty plea that was considered for the first time
at a recent meeting and is unlikely to need a further meeting.
In the next few months the Council will receive advice from the
Panel on all the offences contained within the Sexual Offences
Act 2003 and that will be a substantial number of different instances
and clearly that will take much longer.
Lord Woolf: That is obviously
an area of great sensitivity where different sentencers can have
different views; it is a difficult area.
Q49 Janet Anderson: We have talked briefly
on the difference in sentencing practices around the country.
I speak with some experience here because there was a magistrates'
bench some years ago which was described as the softest in the
country. What plans does the Council have to review Magistrates'
Court guidelines and in view of the recent increase in their sentencing
powers—I think to 12 months—is it a high priority?
Lord Woolf: It is a fairly high
priority. We have been looking at the Magistrates' Sentencing
Guidelines. They are in a different form to what judges are used
to. For example, if you are dealing with motoring offences the
need for consistency is considerable. If you speed or if you are
guilty of careless driving in one part of the country there is
no reason why you should not be punished the same way as in another
part of the country. If you are dealing with different types of
offences the position is more difficult, for example an assault.
On the whole we feel that some of the guidelines for magistrates,
because they are drafted in the way they are at present, focusing
on custody thresholds may be adopting an approach to the use of
prison which the Council would want to reconsider.
Mr McCormac: The increase to 12
months has not yet been brought into force. The most recent addition
of the Magistrates' Court Guidelines came into force in January
of this year and that followed extensive work by the Magistrates'
Association and others in developing them. There are recent guidelines
and clearly they will be shaped and reviewed in the light of the
new framework and particularly with the increase to 12 months
when that comes into force.
Q50 Chairman: Could I just press you
a little bit further, Lord Woolf, on how you set priorities and
how wide a public discussion there should be of that? I know one
of the areas you are looking at is dangerous driving; it is an
area where sentencers find it very difficult, I believe, to get
it right so far as the public and everybody else is concerned
if somebody kills somebody in a motor car. On the other hand,
if I were Martin Narey and in charge of the offenders' system,
I might want to say, "Will you please concentrate on all
of those areas that seem to be sending a lot of prisoners unnecessarily
to prison". How are you actually going to set your priorities?
Which criteria is going to come first, the interesting but difficult
case for sentencers or ones that are putting most pressure on
the prison system, or the crimes where you think there might be
the most community alternatives, or what? It seems to me that
perhaps there should be a strategy which is quite public about
the order in which you take things.
Lord Woolf: Certainly, and I would
anticipate that in our Annual Report—when we come to issue
it—we will talk about the future and set out a provisional
programme and then people can comment about that and say we should
take some things before others things that we have in the programme.
I do not know myself at the moment whether you could identify
a particular criteria except this: that if you are bringing in
new punishments or if you are bringing in new offences, they must
take priority because there is no guidance for those other than,
in the case of a new punishment, the maximum sentence. In other
areas there is clearly not such a great need and I think we just
have to try to balance the needs that are out there and I do not
see us as having any particular criteria. What we do have on the
Council is a very broad constituency. We have the Director of
Public Prosecutions, Martin Narey comes to our meetings and listens
(he is not a member of the Council but he can feed in information
in response to questions from us); we have a senior policeman;
we have the judges as I have indicated; we have representatives
of organisations such as Victim Support. I think we just have
to deal with it collectively and try to apply an intelligent approach.
It may be that after a time we will develop criteria but I have
not myself worked out any apart from what I said about new offences.
Q51 Chairman: There is a lot of international
experience of broadly equivalent frameworks to what we are now
trying to do. What lessons have been learned from the international
experience of having sentencing guidance in a statutory form?
Lord Woolf: We are due to have
what we call an "away day" where we will be addressed
by distinguished experts from different jurisdictions on the guidelines,
so there is experience. Some of it is happy; some of it is not
so happy. Both are important for the Council to be aware of because
if you know of experiences which are unhappy you can avoid the
problems which others have had suffered.
Q52 Chairman: Can you give us some sense
of the sort of problems you are aware of from other countries
and what approaches you might take which would be different?
Lord Woolf: I am aware that in
the States where they were very keen on what they call the grid,
there has been a change of attitude by a lot of informed penologists.
Whereas they welcomed this when it was first introduced they have
now found that the need for consistency has been taken too far
and that is one of the things that has been fuelling the even
more alarming rise in the prison population in the United States.
They are now much more in favour of flexibility. We certainly
want to avoid the situation that has happened in that regard.
We are going to hear from Americans who have experience of it
and I am sure we will learn. My belief is that the guidelines
should be guidelines and no more than that. You have to retain
a discretion to do the right thing for that particular case because
human beings are all different; our histories are all different
and we must always be treated always as individuals.
Q53 Chairman: The Committee went to Germany
recently and one of the things that did come up which was quite
interesting was that they have had a system of sentencing guidelines
for some time and yet their experience over the last five to ten
years has been an upward drift in sentencing which they identified
as being driven by precisely the same issues that we have discussed
this afternoon: public attitudes, media coverage and the attitude
of politicians. Do you think that our Government is being over-optimistic
in how much impact it can achieve on sentencing and perhaps particularly
the balance between custodial sentencing and community sentencing
simply by the introduction of guidance in this form?
Lord Woolf: The guidance by itself
cannot achieve a great deal, but if the guidance is part of a
constructive package, doing some of the other things we have been
talking about today, then I think it is going to be a very important
and significant part. I can only say that I think we have a chance
of doing something constructive here like we have not done for
a long time. It depends on us having the resources, having the
will to see it through and the will to explain to the public what
we are about in a way that leaves them feeling that what we are
doing is acceptable and worthwhile and we all have to work together
to try to do it. I think this is a novel occasion, if I may put
it this way, that a Chief Justice comes and speaks to Parliament
and is questioned closely as to what he is going to do in this
regard and that regard, and I think that is healthy and I approve
of it.
Chairman: Lord Woolf, I think that is
a very good note on which to end. We look forward to playing our
role in this new structure as we find our way forward. I thank
you and Mr McCormac very much indeed.
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