Select Committee on Constitution Seventh Report

Appendix 3

Reply from the Lord Chief Justice, the Rt Hon. the Lord Woolf

Thank you for your letter of 16 June.

As you will be aware, I took part in the second reading of the Criminal Justice Bill and referred to the Sentencing Guidelines Council in my speech (see Hansard, 16 June 2003, Column 572). I also placed a more detailed paper in the Library. I enclose a copy of the section of this paper which deals with the Sentencing Guidelines Council (see below).

My comments on the questions that you raise are as follows:

1.  I do not see any constitutional objection to the existence of the Council if it has an appropriate membership.

2.  As to the appropriate membership, my preference is for the Council to consist solely of sentencers (i.e. judges and magistrates). My primary objections to the inclusion of additional members, as now proposed, are that it represents a duplication of the membership of the Sentencing Advisory Panel, is unnecessary and will mean that the Council's recommendations will carry less weight with the judiciary.

3.  There is also the question of the membership now proposed. I consider it wrong, as a matter of principle, for members of the civil service, including the prison service, and for members of the police service, to be on the Council. If they are to be members of the Council, it will have to be clearly understood that a Minister of the Crown has no power to give them directions or to influence their views. Even if there was no question of them being so directed, there would still be a problem of perception.

4.  I see no difficulty as to the relationship between the Council and the Panel. The Panel is an advisory body and is, in my view, necessary to carry out research and to give advice to the Council. It can have a much broader membership than the Council. If it is decided that the Council's membership should be extended to encompass many of those on the Panel, then, I believe, the question as to whether the Panel is needed does arise. However, since its creation, the Panel has been doing an excellent job and it is very much my preference that it should continue.

5.  I see no difficulty in the relationship between the Council and the Court of Appeal. The Court of Appeal's ability to give a guideline judgment remains. However, once the Council is in existence, I would not expect the Court of Appeal to issue guidelines thereafter, except in exceptional circumstances. It may well, however, have to amplify and explain the guidelines issued by the Council.

6.  I firmly believe that the Council will meet the public interest as to sentencing policies, because it will consult widely before issuing guidelines and because the Bill sets out clearly the purposes of sentencing and the matters to which the Council has to have regard. If it was felt that the Council was failing to meet the public interest, it would, of course, still be open to Parliament to legislate. It would very much be my hope, however, that, once the Council was established, Parliament would not feel the need to intervene. To assist in this aim, I am in favour of the Council issuing an annual report and providing an explanation of its approach when required to do so by appropriate Parliamentary Committees. In addition, in relation to murder in particular, I would be content for any guidance given by the Council to be subject to a negative resolution procedure before Parliament before it could be issued.

I hope my comments assist your committee and am grateful to you for giving me an opportunity to express my views prior to the Committee stage of the Bill. I would be happy to expand on any of my comments, if this would assist the Committee. I am copying my letter to the Lord Chancellor and to the Home Secretary.

18 June 2003

Extract from Background Notes to the speech by the Rt Hon. the Lord Woolf on his Second Reading of the Criminal Justice Bill in the House of Lords, 16 June 2003


The provisions as to sentencing originally contained in the CJB in part 12 are welcomed. It is useful to have set out in statutory form the purposes of sentencing. However, at a late stage of the passage of the CJB through the House of Commons there were introduced two important amendments which have caused the judiciary anxiety.

Sentencing Guidelines Council: Clauses 160 to 165

At the present time there is a well established practice of the Court of Appeal giving guideline judgments. In performing this role the Court of Appeal has been assisted by the advice of the Sentencing Advisory Panel. The Court of Appeal has found the advice of the panel, which can conduct research and broad consultation, valuable. Its advice is normally adopted without significant qualification.

Guideline judgements are intended to promote consistency and proportionality between one sentence and another. The role of sentencing and the Court of Appeal's role in producing guidelines have always been regarded as a judicial function. This was recognised in the Bill until it was amended. Prior to the amendments, the Sentencing Guidelines Council was only to have judicial members. In this form, the Council was welcomed by the judiciary. The fact that sentencing is a judicial function does not mean that the Council's deliberations could not be informed by representations and advice from non-judicial sources. The judiciary were in favour on the retention of the Sentencing Advisory Panel and of its advice being made available to the Council. Furthermore, the judicial welcomed any appropriate relationship between the Council and Parliament. For example, an annual report could be submitted to both Houses of Parliament.

It is now proposed that the membership should be extended [clause 160 (4)]. This will change the nature of the Council. The reasons for this are as follows:

(a)  The guidelines are an integral part of sentencing. They curtail the discretion of the judge. It is in order for a judicial body authorised by Parliaments to interfere in this way but once the body ceases to be judicial that changes the situation.

(b)  The guidelines issued by the Sentencing Guidelines Council will obtain their authority from the membership of that Council and its guidance will not command the same authority if it has a "lay" membership.

(c)  Some of the additional members are not appropriate individuals to be on the Council. A very senior policeman, a probation officer and a senior civil servant can give useful advice, but I would question whether they should be so directly involved in the sentencing process. It would never be suggested that they should actually sentence. By making them members of the Council, we come close to saying that an offender's sentence will significantly be influenced by the direction of the police etc.

(d)  It is important that the Council's approach should be homogeneous. By adding the additional members, the Council is becoming too large.

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