Examination of Witnesses (Questions 249-259)
RT HON
LORD FALCONER
OF THOROTON
QC AND ALEX
ALLAN
4 JULY 2006
Chairman: Lord Chancellor and Alex Allan,
welcome to the Committee. I ask for declarations of interests
that are relevant to the first part of our evidence session.
Jeremy Wright: In relation to the first
part, I am a non-practising criminal barrister.
Keith Vaz: In relation to the first part,
I am a non-practising barrister, and my wife holds a part-time
judicial appointment.
James Brokenshire: I am a non-practising
solicitor.
Q249 Chairman: Lord Chancellor, you
appear before us in plain clothes on a day after which your life
will never be the same again, following touching tributes from
all parts of the House of Lords. When you first came to see us
you were, at least theoretically, a judge, head of the judiciary
and you sat on the Woolsack as Speaker of the House of Lords.
All those jobs have now fallen away from your responsibility and
so has the policy lead on Lords reform and party funding, and
you have been given the job of regulator of claims handlers. It
seems a pretty poor substitute for all that. Are you feeling a
bit sidelined?
Lord Falconer of Thoroton: As
to the first bit, you rightly identify that I first came and saw
you in June and July of 2003 and I said then that the aim was
that the Lord Chancellor should no longer be a judge, Speaker
of the House of Lords and head of the judiciary. Three years and
two weeks later—you were there today—the last bit
of that happened. Although it is very sad personally that this
change has taken place, it was what we embarked upon at the beginning.
I feel some degree of pride that we have managed to achieve what
I believe are very substantial reforms. You are right that I am
not now responsible for Lords reform and party funding, but I
am still involved in both issues. Do I have enough to do? Yes,
I certainly do. What goes on in the Department for Constitutional
Affairs, the courts, legal aid, human rights, devolution and freedom
of information is enough to keep me going. Do I feel marginalised?
No, I do not.
Q250 Jeremy Wright: Although you
are no longer head of the judiciary, we know that you still have
an interest in the judiciary and are responsible for what happens
there. We also know that what has happened in the press recently
has been a very public and apparent argument between politicians
and members of the judiciary. Does it concern you that as a result
of that very public spat the public may take a different view
of judges and lose a degree of confidence in them?
Lord Falconer of Thoroton: I think
you are wrong to say that the problem was necessarily a spat between
the Government and judges. What has been happening over a period
of time is that a lot of people have been saying that part of
the problem in relation to sentencing is the judges. A variety
of parts of the media has been explicitly critical in blaming
the judges for a number of things that have happened in sentencing.
I believe that that has had an impact in undermining confidence
in the judiciary. Separately from that, there have been reports
of rows between the judges and the executive. I should make it
clear that neither the judges nor the executive wants such rows,
nor do they believe that there is any such row going on between
them. They are both as concerned as they could be to ensure that
public confidence in the judiciary is maintained. But it goes
deeper than that. If people think there are rows going on between
different bits of the state that undermines their confidence in
the ability of the state as a whole to deal with the problems
that it has to face, for example terrorism and crime.
Q251 Jeremy Wright: Do you accept
that clearly the judges are worried about this? Several senior
judges have expressed concerns about politicians—I do not
refer specifically to the Government but politicians generally—interfering
in judicial matters and making comments upon decisions in individual
cases. Do you not believe that that is causing a potential problem
of public confidence?
Lord Falconer of Thoroton: Judges
have been careful not to criticise politicians at any stage. I
have made comments to the effect that the judges should not be
made the whipping boys for various problems. For example, the
other day there was a rather graphic piece in either the Daily
Telegraph or The Times in which a judge said that it
might be time for him to resign and go off into the Thames or
something like that. Earlier in the same article it was said that
an unnamed part-time judge was thinking of resigning. I know of
no such judge. I know of no judges who are thinking of resigning
because of that. Everybody involved, judges and executive alike,
is concerned to ensure that confidence is not lost but equally
is aware that these events occur from time to time and the important
thing is to cool the temperature, identify the policy issues and
get on with solving them.
Q252 Julie Morgan: I think the public
find it quite hard to understand some of the arguments going back
and forth. You are absolutely right to say that arguments at the
top undermine confidence. But do you not believe that some of
the language that is used is a little off-putting and difficult
for the public to understand in these sorts of debates? For example,
we talk about the sentencing guidelines. The public understands
them to mean guidelines rather than instructions. I am continually
asked questions about these issues. Would you comment on that?
Lord Falconer of Thoroton: I think
there is a real problem. People think about sentencing guidelines,
honesty in sentencing and the minimum period someone has to serve
by way of parole. You take a figure and then halve it. Those sorts
of things—it is the language of sentencing which has built
up over 30 years—which in very many cases are prescribed
in statute, are complicated. Very often people who attend court,
and who have families that might have been affected by what a
defendant has done, are utterly bewildered by what is happening.
All of us together—executive, judges and legislature—must
try to improve that, because its ability to leave people feeling
tremendously outside how the criminal justice system works is
very strong.
Q253 Julie Morgan: I have been asked
what an indeterminate sentence means. There is real confusion.
Therefore, do you believe that progress should be made towards
simplifying this process or making it more understandable to the
public? Do you have any suggestions as to what we could do?
Lord Falconer of Thoroton: Perhaps
I may identify two areas. I make it clear that I am not referring
to any specific cases. The automatic discount of one third for
a guilty plea at "the earliest possible opportunity"
gives rise to two problems. First, what happens when you are caught
absolutely red-handed and there is no prospect of pleading anything
other than guilty? Second and separately, what do you do in a
case where the guilty plea, whilst of some significance, is to
any reasonable person a very minor matter in comparison with the
horror of the crime? Has the law got itself into a situation where
it is much too rigid in how to deal with that?
Q254 Chairman: This is the consequence
of the 2003 Act, is it not?
Lord Falconer of Thoroton: I believe
that it is the consequence of years and years in court of people
saying that the more certainty there is of a discount for a guilty
plea the more guilty pleas you will get. The whole trend of the
system over decades is to get more and more rigid about guilty
pleas in order to be able to say to defendants that if they plead
guilty that will definitely happen. Eventually, that rigidity
culminated in a situation being reached where individual judges
could not do anything but give a one third discount, even in very
serious cases and where the defendant had been caught red-handed.
It was the inevitable consequence of the way that the law had
been developing over a long period of time, but it has caught
the courts and judges in a straitjacket. The other matter is that
with an indeterminate sentence the court is saying that a defendant
will spend life in prison as long as he or she remains a danger.
This is not a mandatory life sentence for murder but an indeterminate
sentence because somebody is dangerous. But the judge is forced
to specify when that defendant can first be considered for parole.
It is done by notionally identifying what the determinate sentence
would be and then halving it because the individual spends only
half of it in prison. Chopping off a bit for the period you do
not spend in prison has been on the statute book for over 15 years.
A whole range of things has come together. The implication of
Julie Morgan's question is that this leaves people feeling very
dissatisfied with the way the criminal justice system operates.
I completely share that view.
Q255 Chairman: Are you reviewing
the 2003 Act?
Lord Falconer of Thoroton: We
are looking at a whole range of matters: some of them are guidelines,
some are principles, some emerge from the 2003 Act and some arise
from earlier issues. We need to look at all these matters, and
we have made it clear that we are reviewing them.
Q256 Mr Tyrie: Do you want to give
judges more discretion?
Lord Falconer of Thoroton: In
relation to a guilty plea at the earliest possible opportunity,
it is the rigidity that leads to the problem. It must follow from
that example that judges should have greater ability to recognise
where a defendant is caught red-handed or the horror of the crime
is such that the guilty plea should be regarded only as a minor
matter. It seems to me that inevitably that depends on the judges
having more discretion to deal with it rather than that their
hands should be tied, which is the current position.
Q257 Jeremy Wright: Following on
from that, were these points not put to you before the 2003 Act
was passed?
Lord Falconer of Thoroton: The
three big things that the 2003 Act did were: first, the introduction
of an indeterminate sentence where there was otherwise a limit
on the sentence; second, it dealt with what a judge should do
in the case of murder, because that was taken away from the Home
Secretary; and, third, it dramatically increased the range of
community penalties. The guilty plea at the earliest possible
opportunity may be reflected somewhere, but it is carried over
from an earlier Act. The 50% discount comes from the 1991 Act.
They were matters which had been carried forward from earlier
pieces of legislation. I am not trying to take the blame off this
Government's shoulders because it has contributed to these sorts
of decisions over a long period, but inevitably when particular
events and cases occur they illuminate in a much clearer way than
before particular problems that one needs to deal with.
Q258 Jeremy Wright: Mr Tyrie suggested
to you that the tone of your comments indicated you would like
to give the judiciary more discretion over sentencing. Is there
unanimity of thought on that across the Government? Do your department
and the Home Office think the same about that, or is there a difference
of opinion?
Lord Falconer of Thoroton: In
terms of what we do next, it is a proper review, which means consulting
people about particular changes in relation to sentencing. The
Government as a whole does not, in my view rightly, have a settled
view about precisely what changes need to be made. I believe that
the Government as a whole would be agreed in relation to the example
I gave in answer to Mr Tyrie's question. Is there a need for more
discretion? Plainly, yes, in relation to pleas of guilty. That
seems to me to be emblematic of the fact that there are likely
to be other areas as well where greater rather than less discretion
is the answer. But there is no question of disagreement within
government. What we seek is a proper, open discussion about how
we deal with these problems. It would be wrong simply to impose
a solution; we need to consult.
Q259 Chairman: In an exchange of
letters that you had with your junior Minister, Vera Baird, after
she had spoken in Any Questions, she wrote: "As we
discussed, we clearly need to address these important cross-government
issues as a matter of urgency." I find that a rather odd
sentence in a letter which was meant to say, "I got it wrong
and I am very sorry." What did she mean by that?
Lord Falconer of Thoroton: Perhaps
I may refer to the letter.
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