Examination of Witnesses (Questions 40
- 59)
TUESDAY 17 APRIL 2007
RT HON
LORD WOOLF
Q40 Margaret Moran: To play devil's
advocate, assume that I am the editor of the Sun and you
argue about giving the cost of prisons and that we should do more
of the Canterbury model, so my headline is "Prisoners get
free job and free home". How do you balance that in terms
of the argument about resources?
Lord Woolf: I do not know whether
I would persuade the editor of the Sun. From the correspondence
I have had with the editor of the Sun from time to time
I do not believe that I will make much progress and the same may
be true of other editors whom I could identify. But my answer
to that person would be that what I wanted to do was to prevent
him or her reoffending. When as chief justice I addressed many
bodies of those who had been the victims of crimes and explained
the problems of the offender and the need for sustained attention
to be given to that offender if one were to get him off drugs,
or whatever led to his offending, they understood. They are not
foolish. I believe we have the impression that the public are
much more punitive than they are. As long as it is explained fully
why one is doing it and preferably can point to what can be achieved
then the public do understand. That is my view, which may not
be shared by others.
Q41 Margaret Moran: Obviously, you
can very eloquently express that to the editor of the Sun
or to whomsoever you like, but do you think that the courts are
generally very good at explaining their decisions and that kind
of dilemma? You also referred to feedback. Do you think there
is sufficient data or evidence base on which to be able to do
that?
Lord Woolf: I think it is very
difficult to do more than happens now. In regard to most cases
that are sensationalised when the matter is looked at carefully
it is not revealed to be anything like it has been portrayed at
the time. That is because we now spend in court quite a considerable
time explaining exactly why a particular sentence is imposed and
how it is calculated, but, not unnaturally, it is very difficult
for a reporter who must understand what is happening and then
reduce what he or she hears in that case to a manageable size
for the editor to get over the full flavour of the case. Therefore,
the public are often misled. It is true that some sentences are
too lenient. Judges can make a mistake as well as anybody else.
That is why we now have a process whereby if a judge makes a really
significant mistake the matter is taken to a higher court and
it is put right, but the number of cases in that category is not
large. As chief justice the number of occasions when I saw sentences
that were absurdly low were very few, but when that happened it
was increased. There was usually some good reason why what might
at first sight have appeared to be a low sentence was not a low
sentence.
Q42 Margaret Moran: One of the objectives
of the Criminal Justice Act 2003 in relation to the sentencing
framework was that the public should have confidence in the system.
How do we measure that objective?
Lord Woolf: It is very difficult
to do but I think we should try by surveys and other means to
see whether or not we are achieving that objective. One of the
ways we can know whether or not on the whole the public have confidence
is the tables which show the standing of the professions in which
the public have most confidence. Doctors and teachers are very
high up; politicians are very low, if I may say so; and judges
are in a pretty good position, and that is going up. We are getting
over this very important message. I want children to come to courts
to see what happens there and I want judges to go to schools to
talk about what they do, but what has particularly impressed me
in the statistics I have seen is that those who have sat on juries
and been involved in cases have the greatest respect for what
the courts are doing and are impressed by the judges. When the
public are told of the actual sentence imposed in a particular
case they are often surprised and say that they would have been
more lenient. Of course there are cases in which no punishment
would be serious enough for the particular defendant to receive
in the eyes of the victim. I do not criticise the victim for that,
but I think that is the position when talking about the public
in general.
Q43 Chairman: Recently, the editor
of the Daily Mail, Paul Dacre, gave evidence to the Constitution
Committee of the House of Lords.
Lord Woolf: I am a member of that
Committee and he particularly addressed his remarks to me.
Q44 Chairman: Were you there on 7
March when he said of judges that, "If they are making more
and more lenient sentences, they are going to have to explain
their position more vocally and lucidly"? That is simply
factually wrong. As you and all the evidence says, judges in general
have been passing harsher and harsher sentences. Surely, it must
be possible at least to ensure that the editors of our great national
newspapers know what the facts are. How can we do that?
Lord Woolf: I used to say you
can lead a horse to water but you cannot force it to drink.
Q45 Bob Russell: I should preface
my comments by saying that in a previous existence, more than
40 years ago, I used to be a court reporter when perhaps journalistic
standards and newspaper coverage were somewhat better than today.
While most of our questions today have revolved around major court
matters, you will be aware that the vast majority of court cases
are heard in magistrates courts. That was the level at which I
did my reporting. Nowadays, very few magistrates court cases are
reported in the local media. While it is not possible, I assume,
to have a fixture list published via the magistrates court service,
with modern electronic means of communication is it possible to
have a results service? My view is that in local communities the
public perception is that nobody is interested or bothered in
low-level crime, yet I know, and you will be aware, that the police
prosecute and people are being dealt with before the courts and
sentences are being handed down. Is there any way that the criminal
justice system can ensure that local communities are aware of
what is going on in their communities so that low-level criminal
activity is made public?
Lord Woolf: If I may say so, when
you told me your previous occupation I immediately wondered in
which court you appeared as a reporter. I think that is a very
valid point. There is a tremendous deterrent effect in the fact
that the local paper will say what you have done and what punishment
has been imposed upon you. If people have committed crimes they
do not want that to appear. Until you raised the question I had
not thought whether the courts should do more. As a somewhat instinctive
reaction—because I have not thought it through—it
does not seem to me that it is the sort of thing that courts should
be doing. You can make the information available, but I do not
think that people would be comfortable with courts taking positive
action to name and shame. I think it is regrettable that there
is not greater coverage in local papers. We have a vast number
of local papers now. I think the hope that by having a reporter
in a local court you will deter a case which is of real interest
is not considered sufficient to justify the expense involved in
somebody attending. I think it is true of all courts that reporting
is not what it was.
Q46 Bob Russell: I have raised that
issue and hope that perhaps the National Union of Journalists
will pursue it. We can forget about the Guild of Editors because
they certainly will not do so. The Home Office's consultation
document Making Sentences Clear includes questions about
explaining sentences more clearly to the public. My view is that
it should be made clearer to the media, following Margaret Moran's
question. What else would you recommend should be done to ensure
that the public and thus journalists have a better understanding
of the sentences handed down by the courts? I have particularly
in mind the indeterminate sentence and the role of the licence
period.
Lord Woolf: Courts can do things
to try to improve the situation. If I had a case in which I thought
the public and therefore the media would be interested sometimes
I would produce a very long judgment and then have a short executive
summary, so to speak, for the media. I found that the press were
grateful for that and it helped them and that the reporting which
followed was clearer because the main features would be identified.
Q47 Bob Russell: In the main you
have answered my final question, but I just put it to see whether
or not you want to expand further. Although the purposes of sentencing
articulated in the Criminal Justice Act 2003 are not new, do you
think it would be helpful for judges to explain their decisions
by reference to the relevant aims?
Lord Woolf: I think that they
should do as much as is possible bearing in mind that obviously
they must use their time in a sensible way. To go into too much
detail will not really help. They must decide the best way to
explain what they are doing. That is the whole purpose of the
sentencing judgment. The problem is that the judgments given with
sentences are getting longer and longer. That does not necessarily
add to intelligibility but causes more confusion. Judges now have
about 20 things that they are required to say and they repeat
them again and again.
Q48 Bob Russell: For whose benefit
are those decisions explained? Is it for the benefit of the legal
profession, the person being sentenced, the media or public?
Lord Woolf: First, it is to make
sure, so far as they are imposed by Parliament, that the judge
addresses the things that he should address. Second, it is done
as a protection against the Court of Appeal.
Q49 Ms Buck: We have talked quite
a lot about public perceptions of the system and how often information
can possibly influence public attitudes towards sentencing. Earlier
you said that if people realised how expensive incarceration was
it might itself have an impact. Do you believe that sentencing
itself should in some way be influenced by cost?
Lord Woolf: Yes. One should be
realistic. The judge should know how much the sentences that he
is imposing will cost the public. That is a very relevant matter.
If there is a suitable, cheaper option he should choose it.
Q50 Ms Buck: There are two levels
to that. One is whether magistrates and judges should be informed
about the costs of alternatives and perhaps how one can pursue
that. The second level is how one uses that fund of information
to influence public and media perceptions.
Lord Woolf: Yes.
Q51 Ms Buck: Do you have views about
what the mechanics of getting that information to people might
be and ensuring it is properly used?
Lord Woolf: As far as concerns
information to the public that is the task of the media; as far
as concern judges they are provided with the information regularly.
The Home Office takes great care to make information available.
Q52 Ms Buck: If that information
is very much available to people as a tool to what extent does
that have an influence? If not, why not and what can be done?
Lord Woolf: I am sure that it
does play a part and that the judge does take it into account,
but for many years the belief prevalent among the judiciary, which
perhaps reflected the attitudes of those times when there was
not such a big prison population as today, was exactly that. I
believe that it was the Chairman or another Member of the Committee
who put to me that it is the task of the judge to pass the sentence
that he or she thinks appropriate and then it is for the Government
to pick up the tab regardless of what it is and there is no limit
on how much it can be expected to expend. I would hope that we
can be a bit more sophisticated these days and take into account
the other pressures placed on those who are responsible for managing
our affairs, namely the Government, and recognise the conflicting
interests.
Q53 Ms Buck: Why are there such striking
variations in the use of custodial sentences between different
parts of the country?
Lord Woolf: You presuppose that
there are. Within magistrates courts there tend to be regional
variations which are well chronicled. I believe that it is part
of local justice, especially at magistrates court level, that
there should be some difference, but the difference must be modest;
otherwise, the appeal system is not achieving the objective of
ensuring consistency. Magistrates now throughout the country have
very detailed guidelines and there should not be the inconsistencies
that occur in unfortunate cases because all the material is available.
Q54 Ms Buck: Is it your view that,
allowing for variations in the profile of offenders, there is
not a significant variation?
Lord Woolf: There is evidence
of significant differences in certain areas of the country, but
the magistrates in those areas will be aware of that and seek
to justify them. They will say that a particular form of offending
is prevalent or that a country area subject to this sort of behaviour
is particularly vulnerable because there is no policeman within
so many miles and they are justified. They know their local situation
better than I do. While I think there should be consistency in
sentences it is not surprising that there is some variation. If
there is too much variation it should not happen and the training
systems now in existence should prevent that.
Q55 Ms Buck: Some of the emerging
thinking about the development of things about which you have
been talking—the balance between custodial, restorative
and community sentencing—suggests that having a much more
neighbourhood-based facility allows greater transparency at local
level so sentencing can be observed and options developed within
a much more local context. What is your view about that kind of
operation? Is that something that can go some way towards reassuring
the public about the effectiveness of community sentencing? Is
it something that can perhaps be more integrated into local government
and funded through local taxation?
Lord Woolf: These ideas may well
be worth exploring and have merit. It is very difficult to make
broad generalisations about the qualities of any particular initiative.
I think that we have such a difficult situation that we should
not ignore anything that might help.
Q56 Chairman: Perhaps we may end
with a few brief questions about the sentencing guidelines and
the council. I begin by picking up your earlier interesting suggestion
about the Bank of England model for the Sentencing Guidelines
Council. Would it not be more publicly acceptable if, for example,
the statutory aim of the Sentencing Guidelines Council was to
reduce reoffending rather than balance the prison population with
the available resources?
Lord Woolf: That would probably
be much more acceptable and easier to do, but I think that something
more drastic is needed.
Q57 Chairman: As a politician I am
bound to ask the following: if one has a policy to set up an independent
body which then leads to judges up and down the country saying
when they come to give sentence, "I would have sent you to
prison but now I cannot because there is not enough money",
will it not undermine public confidence in a serious way?
Lord Woolf: Judges would follow
the sentencing guidelines in the way they do. Of course there
will be rough water, but it is becoming more and more apparent
that our present way of doing things is really unconstructive.
If politicians were able to be really forceful it should not lead
to situations where people who should be in prison will not be.
At the time I was writing my report judges in Germany came together
and said collectively that they would cut sentences across the
board by 10%. Who is to say whether a sentence which is 10% higher
is better than a sentence that is 10% lower? Looking at matters
in a holistic way, at the present time a 10% reduction in our
prison population would be manna from heaven to the Prison Service
and Home Office. I do not think it means that judges would say—if
they did say it they should not—that that was an inappropriate
sentence. If the guidelines were that that should happen that
would be the right sentence. They would have no reason to impose
the wrong sentence and therefore would have no right to say that
they would otherwise have passed a higher sentence. If it is a
relevant matter they must take it into account.
Q58 Chairman: If you have a more
powerful council is there a case for broadening its membership?
You have referred to this Committee's role in commenting on guidance,
but the process for the Sentencing Advisory Panel and the Sentencing
Guidelines Council looks very much a closed shop of professional
sentencers and a relatively small number of interest groups working
directly in the criminal justice field. Is there not a case for
broadening its membership so it has wider representation of the
public: community organisations, ethnic minority groups and so
on?
Lord Woolf: I think that we should
look again at the membership of the Sentencing Guidelines Council.
It is my belief that the chairman should not be the chief justice
of the day. The Law Commission's full-time chairman is a judge.
I think that the Sentencing Guidelines Council is a very big job.
Whereas whoever is chairman should work very closely with the
chief justice of the day, the latter has so many commitments that
it is more sensible for some other judge to perform that role.
I believe the reason it was decided in the first instance that
it would be desirable to have the chief justice on that body and
why I never made any attempt to delegate my duties to somebody
else was that it was felt so important that the judges should
feel that the message they got was one they could accept and follow.
Therefore, the symbolic presence of the chief justice was important.
I think that initially it was a good thing. Interestingly, in
the States there are many similar bodies in different parts of
the country, not least because each state has its own approach
and membership differs. We can learn quite a lot from examining
that situation. Learning from the States suggests that the person
who is chairman needs to be very politically acute.
Q59 Chairman: With that in mind,
it is acknowledged that when this Committee considered the guidelines
it did not anticipate some of the consequences of the reductions
in sentence for a guilty plea. That is now under revision. Therefore,
the process of setting guidelines has proved to be very complex
and challenging and it is quite possible to make some errors of
judgment along the way. That is probably part of the learning
process. But the flow of draft guidelines now seems to have become
very slow. We were expecting a comprehensive set of guidelines
over a reasonable period of time covering most of the main areas
of sentencing, but fewer rather than more appear to be coming
through to the Committee. Do you think that is because of the
challenges that the council has faced in getting this right first
time round? Now that you are no longer in that role you may have
a view.
Lord Woolf: I do not believe that
it is anybody's fault, but in setting it up we probably made it
too bureaucratic. The Sentencing Advisory Panel predated the Sentencing
Guidelines Council. The advisory panel had been very effective
and so, not unreasonably, it was thought that we should not get
rid of that panel but should have a guidelines council as well.
What I believe is holding things up is stage after stage of consultation.
That takes up a considerable amount of time. The people you want
to consult need time to respond, and if you have too many steps
in the process it draws it out. From that point of view it is
a long drawn-out process, but if that is looked at it may help.
Chairman: Lord Woolf, you have been extremely
generous with your time. Thank you very much for opening this
inquiry and also for being so frank, open and constructive with
us.
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