Select Committee on Home Affairs Minutes of Evidence


Examination of Witnesses (Questions 20 - 39)

TUESDAY 17 APRIL 2007

RT HON LORD WOOLF

  Q20  Martin Salter: In terms of the argument about sentencing and taking cognizance of the prison population, it begs the question about the impact on justice itself. Surely, if the punishment for a murder committed at a time when the prison population is slightly lower than it is now is reflected in a shorter or longer prison sentence it does not give one any confidence that a crime is being treated with equal severity. Should one not be taking the argument to the next level which says that a crime is a crime, punishment is punishment, an offence is an offence and a sentence is a sentence? There should be consistency across the board and it is the Government's responsibility to ensure that there are sufficient places available and we should not have this artificial cap on the limits of our system of justice.

  Lord Woolf: I do not think it is a good way to deal with it. I think we should have a much more strategic approach, and that was why I talked about a long-term solution. Since I wrote that short article in The Times I have thought considerably more about the subject. What I would like to see happen now is for the Sentencing Guidelines Council to be put into the same position as the Bank of England. It should be told, "Look, over a five-year period this is the amount of money that the Government has decided can be provided for the prison population, and you must see that your sentencing guidelines achieve a prison population within those resources where the commodity of prison space is used in the most appropriate way without prisons being overcrowded so they can do constructive things." I then come back to Mr Winnick's approach. Of course, one says that the primary use of imprisonment should be for violent offences. As far as concern offences of dishonesty, they must also be punished but they must be at an appropriate level to justify imprisonment, and what we should be doing is using our other available resources which would become available if the prison population was not increasing all the time to make really effective sentences in the community for offences that are appropriately punished in the community. If that was the situation we would not be working from hand to mouth and there would not be any danger that because a prisoner came up for sentence at a time of gross overcrowding he or she would be dealt with in a different way from what would happen if the matter had occurred at a time, which unfortunately is very rare, when the prisons were not overcrowded, for example because recently two or three prisons had come on stream or something of that sort. What I do not believe meets justice is a situation where the judge tries to find the appropriate sentence and, if necessary, the matter goes to the Court of Appeal and that court tries to determine the appropriate sentence but that sentence passed bears no relation to the actual sentence served by the prisoner. What then happens is not that the court passes the wrong sentence but that the offender is released because of the overcrowded state of the prisons, or a particular prison, at that particular time.

  Q21  Martin Salter: I do not disagree with your analysis in that regard, but how do you justify the statement that building more prisons is not the answer when you are already telling us it cannot it right that there is a disparity in sentencing determined by the levels of prison population and as you quite rightly say, as made perfectly clear by every piece of evidence before this Committee in this inquiry, that there are atrocious reoffending rates? For example, young offenders reoffend at the rate of 70%. I saw myself at a recent visit to Reading prison that there cannot be effective rehabilitative work at chronically overcrowded prisons. Even if no further people were sentenced to imprisonment over the next 10 years surely there would be a case for increasing the capacity of the prison system to ensure that proper rehabilitation work could take place and offenders left prison with less than a 70% chance of going back through the revolving door in a couple of months. Is that not predicated by the need to build more prisons and create more prison places?

  Lord Woolf: If we are to be realistic what we know is that the more money we spend on building prisons the less money there will be to focus on education and rehabilitating and reforming prisoners. What you are saying means that one can house the prisoners perhaps in more comfortable circumstances than would otherwise be the case; they would not be doubled up and go into prison cells instead of prison; there would be room in prisons and they would not be going into cells in the courts which are wholly inappropriate for keeping prisoners for any length of time. If in the States you announce that you are to build five more prisons there is huge competition between different localities to have them built there because they provide employment which people want and so it is an industry that is seen as attractive to the community. I am glad to say that that is not the position in this country. People do not want to have more prisons in their back yards. Therefore, getting the space where you can build the prisons is not at all easy, so we must resort to hulks in which to keep prisoners when the pressure gets great enough for that to be required. What I have learned over the period in which I have been involved is that if more prisons are built they will be filled and the policies that result in the overcrowding now will continue that overcrowding. What we have to do is make a proper assessment as to the fair proportion of the economy of this country which it is right to devote to imprisoning individuals. If you say that that fair proportion is unlimited you can make it work; you build more prisons and ensure that they have very effective regimes, but in practice we find that that does not happen. One may have another 800 places available over a relatively short period of time but they will not be sufficient to deal with the problem. But even if it was sufficient to deal with the problem it would be only a very short-term solution. I just do not think that it would work. That is why I would like a brave government to say that it will not have an open door policy as far as concerns prisons, that this is a sensible number for the community and sentences must be produced which will use them in the most effective way. The fact is that now there are many people in prison who do not need to be there. If we approached the matter logically and sensibly we would ensure that the very expensive commodity of prison places was retained for those who really deserved it and needed it. We then ensure that from the very first day they arrive the programme starts to ensure that when they return to the community they will not, as far as it is possible to achieve it, reoffend.

  Q22  Mr Streeter: In a second I want to ask a couple of questions on indeterminate sentences, but I cannot resist just asking you one question on what you have just been telling the Committee. What evidence is there based on any of your experience in this country or any other part of the world that if we spent an awful lot more on rehabilitation, whether inside or outside prison, reoffending rates would go down?

  Lord Woolf: What is clear on information known to the Home Office, because it wants to pursue these policies, is that in particular if a young man who has employment and somewhere to live is returned to society the probability of his committing a crime is significantly reduced. It depends on the individual, but if you are able to make sure that he goes back equipped then in those circumstances it works. There was an excellent initiative at Canterbury prison where the prisoners, the police and prison officers worked together to achieve that situation and reoffending rates fell. The evidence is there, and that is accepted. You will not reduce crime or prevent reoffending by 100% but you will reduce it. Above all, if a person is not capable of work because his standard of education is minimal you do what the Army did when I did my national service: you provide a very good education to bring the individual up to the minimum standard that is needed for employment. That is the sort of thing that we are not doing.

  Q23  Mr Streeter: As you know, indeterminate sentences were designed for the most dangerous offenders. There is a minimum tariff and the Parole Board makes a decision to release under licence. We learn that 22% of indeterminate sentences since the 2003 Act involve an average tariff of less than 18 months. Does that surprise you? Why do you think that is happening?

  Lord Woolf: I am afraid that that is because of provisions in the Act in relation to dangerousness that require the courts in particular circumstances to make indeterminate sentences. It seems to me that it is not good sentencing policy to create a situation where a court at the same time imposes an indeterminate sentence and says that the tariff should be 18 months. There has always been a very small number of cases that are very worrying to the courts where you just do not know how dangerous the individual is. In that case an indeterminate sentence if available could be useful; it could be a merciful sentence. That is particularly true in cases of arson. If one can avoid it one cannot have somebody going back into the community who will burn people's homes and kill people in that way. One therefore wants to give someone the responsibility to decide when the person is fit to return to the community. But that is a small range of offences. The life sentences in those cases were used with great discrimination by the judiciary, but the message from legislation since that time is that there are situations where one is required to impose indeterminate sentences. The indeterminate sentences to which you refer are a great problem for the system.

  Q24  Mr Streeter: Moving to recent comments by Lord Phillips about the length of the minimum term for murder, you said that the 2003 Act introduced greater terms for murder without any apparent reason.

  Lord Woolf: Was that the 2003 Act? It may have been a subsequent Act. I am not sure which Act it was.

  Q25  Mr Streeter: Whichever Act it was, is not the apparent reason public concern about the levels of violence in our society and the kind of murders that we now experience? Is it not right that politicians should respond to that?

  Lord Woolf: First, it is very important that the sentencing policies adopted are ones in which the public has confidence. They must have confidence in the justice system. Second, it is right that politicians should respond, but this was a huge and dramatic hike. I am not sure there was any particular outcry by the public at the time. The precedent for this was the fact that the powers of the Home Secretary because of the impact of the European Convention on Human Rights had to be removed. I hope I am not being unfair in saying that there was a bit of a reaction by the Government to the effect that if they were to give it up they would ensure that the sentences were substantially higher than they had been. That linkage explained that hike, and it was not a good reason.

  Q26  Mr Streeter: If you had the power would you reduce minimum terms?

  Lord Woolf: I believe that if there is a good parole board minimum terms should be at the appropriate level. What has happened is that the statutory minimum terms are often not at the appropriate level. In many cases they are. If there is a bad case the appropriate level is very high, but why tie the judiciary when there is no evidence to suggest that it was not identifying the serious cases and the Parole Board was doing an excellent job and was largely successful in ensuring that people were released from parole only when it was safe to do so?

  Q27  Chairman: I want to ask a couple of questions about short sentences. By implication you have referred to it already. It is widely recognised that short sentences of a few months almost always do more harm than good in terms of reoffending, and yet both magistrates and crown courts continue to pass very short sentences. Given the drive for effective sentences, why has it proved so difficult to persuade sentencers that short sentences are ineffective, give rise to very high rates of reoffending and are a poor use of public money?

  Lord Woolf: I think that the situation is linked to the methods to which I have referred. There comes a stage when the court feels it has tried everything and nothing has worked and so it must be a short sentence. It recognises that it is not the sort of offence that deserves anything other than a short sentence and so one is imposed. I understand the feeling of frustration which causes those sentences to be imposed, and I believe that there are too many of them imposed. The message that I tried to give was that if it was felt that because of the pattern of offending one had to have a short sentence one should not impose three months but one month or two weeks; keep it as short as possible. One must have some regard for the position of the magistrates who have a young tearaway before them time after time after time. They feel eventually totally frustrated and say that they cannot go on like this; it is just making a mockery of the situation, but they can impose a very short sentence. Often, the most effective thing about a short sentence—indeed, the only effective thing about it—is for you hear the clang of the prison door and to spend just a few nights knowing what it is like to be shut up for most of the day.

  Q28  Chairman: How damaging was it to the 2003 Act that custody-plus has never been implemented, and perhaps may never be implemented now?

  Lord Woolf: It is unfortunate that the resources were not available; it comes back to that.

  Q29  Chairman: In terms of the frustrated magistrate who can see nothing else to do, how much does that stem from lack of confidence in the alternatives to prison?

  Lord Woolf: I think it comes directly from that because their experience is that they are not effective.

  Q30  Mr Browne: I should like to ask three separate questions on community orders and alternatives to the situation that you have been describing over the past three-quarters of an hour. First, in the Home Office's recent consultation document Making Sentencing Clearer it is said that "the courts are not using community orders as fully as they might". Is that a view you share? Is part of the reason perhaps a general public sense that non-custodial sentences are a soft option? If that is the case, do you think that somehow they need to be hardened, for example—I do not know whether you think it is getting a bit close to the concept of chain gangs—by requiring offenders to wear uniforms to make them more identifiable to the wider public as those who are serving a community non-custodial sentence? How do you think there can be greater confidence in it?

  Lord Woolf: My answer is that it is not a case of dressing them up in orange glow overalls for the purpose of the sentence. I do not believe it helps to reduce the very limited self-confidence of some of these people to treat them as though they were in the stocks. I think that the punishment must be supervised very much more effectively than it has been because of lack of resources. I have a huge regard for the Probation Service, but I think that it is stretched so excessively and if there is a need to devote resources in general it is not always appreciated how important it is to make community punishments really effective.

  Q31  Mr Browne: People's concern is that these young tearaways, as you described them in an earlier answer, are meant to be picking up litter, or whatever it is, but they are spending most of their time smoking and talking to each other; they are not applying themselves to the task with as much vigour as the public may wish them to.

  Lord Woolf: If that is happening it is damaging, and if the judge or magistrate sees that happening that is also damaging, but the punishment can be made vigorous. Sometimes it continues much longer than the protection provided by their incarceration. I believe that those are the matters on which we should really focus as well as having a sensible policy for the use of long-term imprisonment.

  Q32  Mr Browne: Another option used as an alternative to prison is the fining of people. I see from some statistics I have been given that in 2004-05 only 52%—just over half—of fines imposed by courts were paid within six months. There is an issue about fairly wealthy people not regarding a fine as a huge punishment and those who default. What is your view on the use of fines as a method of punishing people?

  Lord Woolf: Again, enforcement is very important. I believe that more recently available figures show that enforcement is at a much higher level than previously and it has improved. If that is so it is a very good thing. I believe that one of the matters in the 2003 Act which was a very useful punishment was the requirement to do work in the community instead of paying a fine. Quite frankly, a lot of the people who receive fines are not really in a position to pay them. If they can work off a fine that is true. The aspect of inequality to which you refer is, I am afraid, a reality. Sometimes the world is an unfair place. If somebody has large resources obviously a fine does not bite to the same extent as on someone who is poor, but I do not believe that a man who drives a Rolls-Royce is very happy when he finds on returning to his vehicle that he has a parking fine to pay even though he has lots of resources.

  Q33  Mr Browne: But overall do you say that effective non-custodial community sentences are more effective than fines, and possibly more effective than short prison sentences?

  Lord Woolf: They are certainly more effective than short prison sentences, but I believe there is scope for fines. Although the cost of monitoring punishments in the community is much less than imprisonment there is still a cost, the cost being the time of valuable people.

  Q34  Mr Browne: The final area that I want to cover is a debate that has not been started but has been given extra impetus by a report published recently by Jean Corston, a former Bristol MP, which concentrates particularly on women's prisons. Her report recommended that there should be smaller local custodial sentences instead of prisons for women as they currently exist. Following that up, I tabled a couple of Written Questions to which I have just received responses. I am told that on average women prisoners are kept 58 miles from their home and almost one in five are kept more than 100 miles from where they live, with a possible consequential impact on their ability to resettle in the community once released. I cannot remember the precise figure, but of the prison population of 80,000 about 3,500 to 4,000 are women. I was interested in your specific observations about how prisons fail to serve women who are currently being incarcerated and whether reforms need to be made.

  Lord Woolf: I certainly think there is a need and that makes too wide a point which is applicable to the whole population. First, wherever possible if imprisonment is to lead to the right results it should be local. One of the problems of overcrowding is that one is constantly moving prisoners. This is especially important in the case of women. Second, in my view on the whole small prisons are better than large ones, but economies of scale must be taken into account with the male population. We really need to make special arrangements for women in prison which are different from those that are now made. Because the numbers are so much smaller than the male population they often must go a long way away. Often, one is separating mothers from their children and families. That is very destructive of the possibility of the mother being reformed and it also has a damaging effect on the children. That can store up problems for the future.

  Q35  Mrs Dean: To carry on that line of questioning, how credible are community options for vulnerable women and also for drug and alcohol-abusers? What changes could we make so that sentencers have more confidence?

  Lord Woolf: It may be that what we have to do is go back to what I said earlier about providing sentencers with more information about how people get on. If one perceives that the punishment is having the desired effect it may well be it will produce statistics that give confidence. We are at the moment in the unfortunate situation that we are not providing effective community sentences in many cases. We do our best with the resources available, but we are not doing it in a sufficient number of cases and so the feedback is not as positive as it would otherwise be, but certainly there is no information that prison is more effective than community sentences. The only reason that prison should be regarded as the alternative if there is a community sentence available is because of the seriousness of the offence. We should be using community sentences wherever possible because they are the more economical option which means it has advantages for the resources available to the system as a whole.

  Q36  Mrs Dean: What do you think should be the role of restorative justice in the criminal justice system?

  Lord Woolf: I am glad you ask that because I have not mentioned it and it is something to which I believe great importance should be attached. There should be more resources. I am repeating myself and sound like a cracked record. That is an example where right across the range of punishment restorative justice can be of benefit not only to the offender but, more importantly, to the victim as well. The fact that victims find it constructive in so many cases is not given enough attention. It is right that we should be focusing more than we did in the past on meeting the needs of victims, and in the right cases restorative justice does that. I saw that in my previous job. Sometimes restorative justice is now used after a person has been sentenced to life imprisonment. Until the law was changed for every person sentenced to life imprisonment I had the task of writing to the Home Secretary giving my view as to what the tariff should be. Where appropriate, although I could pay only limited attention to it I tried to get a statement from the victims about the effect upon them. There were quite striking cases, even involving murder, where a victim's family had the opportunity to be engaged in a restorative process, recognising that a young offender had good in him and could have potential. They wrote letters asking me to put the tariff as low as I felt I could. This is vivid proof. With small offences it is so important that the young offender should know what damage he is causing. It is so easy for a criminal to dehumanise the victim. Restorative justice makes criminals face up to the damage they have done, and that is often the most salutary thing one can do. I am a great enthusiast for it, but not in all cases. One must not force victims to engage in it if they do not want to, but if they are willing it can be very constructive.

  Q37  Mrs Dean: Can conditional caution play a greater role in the criminal justice system? Can it make a contribution to reducing the burden on courts' lists, for example?

  Lord Woolf: I think it can and does. It must be used properly and there must be objective criteria set out to control its use, but I believe that it is a positive factor.

  Q38  Margaret Moran: You have referred to the nub of the issue, that is, the political hot potato where successive governments have not grasped the nettle of resources versus punishment or the approach to prevention. How far do you feel that is the result of media pressure, and, if so, what do you think can be done about it?

  Lord Woolf: If I may say so, I think you are in a much better position to judge than I am. I think that politicians react as one would expect. I do not think anybody wants to be painted as not protective of the public. That is as true of judges as politicians. I believe that the media do cause judges to be tougher than they might otherwise be and to be much more cautious about taking a chance. When I was a High Court judge and people came before me with real signs that they repented what they had done it was often in the interests of the public, or the greater good, to take a chance, but it gets more and more difficult in present circumstances to do that. These are the consequences of the various matters that we have built into the system, such as appeals against lenient sentences. I do not think any judge likes to be labelled as a soft touch.

  Q39  Margaret Moran: Therefore, there is pressure on the judiciary. I have been told by someone who currently works as a consultant but who was formerly an FBI officers that for example in reality someone who is guilty of violence against a child, perhaps by internet pornography, will serve a sentence of between three and six months. How does that help to deal with both public confidence and media pressure, and how do we break out of what we are describing as the vicious circle of media, public pressure and political pressure?

  Lord Woolf: The first thing we must do but is to try to get over the message of just how expensive incarceration is. I do not believe that that message has got through. Every time the Government feels it necessary to take action to produce a minimum sentence which will put up the going rate I would like to see the costs of it set out in clear and realistic terms. Parliament must now say whether legislation complies with the European convention. I would like it to specify precisely the cost. In my view if the public could appreciate that if it is desired to have more people in prison that could be done but it would mean one less hospital, one less new school and so many fewer teachers then some of the absurdities that now take place in the prison system might be avoided.


 
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