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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