Examination of Witnesses (Questions 1
TUESDAY 17 APRIL 2007
Q1 Chairman: Good morning, Lord Woolf.
Thank you very much for coming to give evidence to us today on
sentencing policy. I believe you want to say something.
Lord Woolf: I want to apologise
for not being able because of an illness to come on a previous
Q2 Chairman: That is totally understood.
We are grateful to you for coming to start off our new session
because of your very important and recent experience as Lord Chief
Justice. We hope that you will be able to share with us some reflections
that you might have had when holding that office which you were
not able to say at the time. Obviously, we want to concentrate
on the key issues of sentencing, prison population and so on,
but perhaps we can begin by touching briefly on the Government's
very recent proposals to create a ministry of justice and transfer
both the Prison and Probation Services to the new ministry but,
more fundamentally, the great bulk of criminal justice policy
itself which will be driven by the new department. Can you let
us have your views in general, first, as to the reorganisation
that will take place and, second, about whether or not you believe
it has particular implications for the development of sentencing
Lord Woolf: Obviously, there is
logic in having a ministry of justice. As the Committee will know,
at one time consideration was given to a proposal to transfer
parts of what is now the Department for Constitutional Affairs
to the Home Office. At the time the judiciary was very unhappy
about that and the matter was reconsidered. In the eyes of the
judiciary the main problem that arose in relation to the courts
being handed over to the Home Office was that in the civil courts
the department was often in the position of a defendantprobably
of necessity a principal defendant these days when less civil
litigation comes to trialbecause of the type of responsibilities
it had. Some of those problems will now come to the new ministry
of justice and possibly the same tension can be said to exist.
To the constitutional lawyer the division may be apparent, but
it may not be so apparent to the public when they bring proceedings
in the civil courts against the department that will now be responsible
for prisons. To see as you do outside Her Majesty's Court Service
the Department for Constitutional Affairs as defendants may look
a little odd. Perhaps some thought need to be given to that, and
it is certainly a decision that needs to be explained. But I believe
that the primary concern of my erstwhile colleagues, not this
Committee, is that for many years the civil justice side has been
the poor relation. Resources have constantly gone from civil justice
to the criminal justice system because of the demands particularly
of criminal legal aid and complex prosecutions. If I were still
chief justice I would be concerned with the prisons' amazing capacity
to absorb money as the population increases more than expected.
As far as I know, no steps are being taken to ring fence the resources
available for the justice system as a whole and the courts in
particular. I believe that care needs to be taken in that regard.
I hope that if there is a new ministry of justice a committee
such as this will continue to take interest in matters involving
in particular prison and probation policy and matters of that
sort, because at the moment there could be a gap there. I know
that because of the Sentencing Guidelines Council. I thought that
the council should have a relationship with this Committee was
very positive because it was important that an authoritative body
should look objectively at its recommendations.
Q3 Chairman: That is a very helpful
reply with regard to the scrutiny role of Select Committees. All
I can say this morning is that at the moment how that might work
is a subject of some discussion. It is perhaps a question the
answer to which may not be as clear as I would like. To pick up
matters that arise from what you said, it may be possible to ring
fence, for example, court funding; perhaps it is feasible to put
structures in place that will protect against the potential conflict
of interest, or its perception, about which you have spoken. Are
you concerned that the change in structure is taking place in
a very short period of time before that structure and those safeguards
can have been put in place, certainly by legislation?
Lord Woolf: During the period
that I have been a judge I have had considerable dealings with
both departments. There is much more interplay between the departments
and courts than is sometimes appreciated. I believe that that
interplay is very healthy. One must say one is very worried as
to whether the scale of transfer in one direction will put huge
burdens onto the existing department. What will be its resources
to handle those changes? Great expertise has been developed within
the Home Office in various areas which does not now exist. It
can be transferred lock, stock and barrel as we have seen from
the department to the judiciary when the chief justice became
head of the judiciary, but it takes time to settle down. I hope
that the planning of these changes will be very carefully worked
out because they are not straightforward. There will be substantial
managerial problems to deal with it. The Department for Constitutional
Affairs already has plenty of headaches and will have many more
to cope with. If it is geared merely to reproduce some of the
problems that have been highlighted recently in the Home Office
it will not achieve any positive purpose.
Q4 Chairman: I suspect that the Committee
would like to keep you on this subject all morning, but we have
asked you to talk about sentencing. I will ask just one other
question about another potential tension in the reorganisation.
Some of the advocates of the split from within government have
given the impression that they see an advantage in having the
judiciary and sentencing function within the same department as
prisons because it may help to encourage a sense of awareness
of the impact of sentencing policy on the effective use of resources
and, therefore, the implications of the different choices made
about sentencing. On the other hand, your successor has recently
said he is concerned that judges may be placed under pressure
to impose sentences that they do not believe are appropriate.
That is almost the other side of the coin. Do you have concerns
that by bringing the prison, probation and community sentencing
budget within the same department as the sentencing function judges
may feel under pressure to impose sentences for reasons other
than the independent exercise of justice?
Lord Woolf: It has always been
my hope and belief that judges' shoulders are broad enough to
resist inappropriate pressures, and I am fairly confident that
if that very inappropriate behaviour occurred they would withstand
it. I do not particularly see that as a great problem. But I have
already drawn attention to the fact that the department running
the prisons will now be the same as that which runs the courts
and I am happy to leave it in that way.
Chairman: I am grateful to you for your
openness on that.
Q5 Ms Buck: To move to the broader
issue of sentencing policy, I start with an easy question. Why
do you think it has been so difficult to establish an effective
Lord Woolf: To be absolutely frank,
I think it is because of the highly political nature of sentencing.
It is a matter about which the public are highly and rightly concerned.
As the public are very concerned about it so are politicians.
I believe that sometimes we lose sight of what would be a really
effective sentencing policy and the results show it. This is not
a party matter. My experience of one administration or another
was that the responses were the same under both. They were not
prepared to grasp the very prickly nettle that our present sentencing
policy was out of accord with the resources available to deal
with those who were sent to prison. To me, I do not believe we
will achieve a sentencing policy that makes sense until that is
recognised. When I made my Strangeways report about 15 years ago
the evidence of the Prison Service was that overcrowding was a
cancer eating at the heart of that service. I have taken a close
interest since that time in the Prison Service. I believe that
it does a very good job, but that cancer has persisted and it
is reflected in reconviction rates and our failure to stop reoffending.
We can house prisoners; we can build more prisons, but we do it
after they are needed, not before, and during the substantial
period I have been a judge there has never been a situation when
the prison accommodation has satisfactorily dealt with the number
of people being sent to prison. It is now clear that that must
be taken into account. I could suggestI have thought about
it for a long timethe courses that might be taken to improve
the situation in that regard, but it first requires the political
will to do it and so far there is very little evidence that it
Q6 Ms Buck: I know that others want
to discuss the issue of overcrowding, so I will not pursue it.
You said that an effective sentencing policy was difficult to
pursue given the conflicting pressures. First, is it possible
for you to define what you regard as an effective sentencing policy?
Second, is it ever possible realistically to develop a policy
that is not subject to that kind of buffeting of political, public
and other pressures?
Lord Woolf: As to the first part,
I go back to the Criminal Justice Act 2003 which set out the purpose
of sentencing. It seems to me that there you have a very satisfactory
statement by Parliament of what sentencing should do. First, it
is punishment, and we do punish. There is no doubt about it. Some
people would say that we punish more than necessary, but we certainly
punish. The second matter is the reduction of crime. I do not
think we achieve that by our sentencing policy, certainly not
to the extent we should. The reason for it arises because of the
next matter: reform and rehabilitation of offending. This comes
back to my point about prison overcrowding. At the moment, we
are not achieving the reforms and rehabilitation of offenders.
The fourth is the protection of the public. I do not think we
protect the public to the extent we should because we do not prevent
reoffending. I believe that is a very important aspect of it.
There is also the making of reparation by offenders to persons
affected by their offences. We make attempts to do that but I
should like to see much more of that. Perhaps we achieve the punishment
of offenders, but when we look at the other four our record is
Q7 Ms Buck: In policy terms you are
happy with that set of definitions, but do you think that the
2003 Act has been a success? Have the aims set out in that Act
translated into practice and, if not, why not?
Lord Woolf: The Act contained
a whole selection of different punishments and I think the variety
was very good. The Act was very well intentioned, but again I
connect it with the state and cost of our imprisonment policy.
We did not have the resources to make the punishments in the community
work well, and we did not have the resources to do the other things
intended by that Act. The Government does not have unlimited resources.
I accept that there are other matters on which money must also
be spent. We have to think about hospitals and education. Education
is in my view of critical importance because that is where you
start to tackle the things that could produce criminals of the
future. I would much prefer to see the money being spent on schools
and hospitals than on building prisons.
Q8 Ms Buck: Why do you think that
the sentencing guidelines issued since the implementation of the
Act do not make reference to the aims that you have just outlined?
Lord Woolf: The Sentencing Guidelines
Council pays great attention to the aims that I have indicated,
but one of the problems of the council is that it is seen very
much in its primary role to produce consistent sentencing. Consistent
sentencing is important so that one does not have one person punished
in one way and another punished differently, but it has been given
no mandate to do anything particular in regard to sentencing.
Again, this is probably because of an unwillingness to grasp the
nettle. I would like it to receive from government a clear mandate
that it should, for example, do something about the overcrowded
state of our prisons. If it had that mandate I believe that it
could fulfil it.
Q9 Ms Buck: Does that in any way
lead to the conclusion that judges should be given specific guidance
on how to balance those different aims, because in a sense the
aims already encapsulate that objective but they are not being
given guidance to enable them to do that? Is one of aims being
given much more priority than another?
Lord Woolf: You are quite right
that the aims that I have been through reveal a high degree of
generality. When it comes to producing guidelines they are more
specific, but while those aims should be fed in the extent to
which they do so is a matter of judgment. In this period of the
life of the Sentencing Guidelines Councilit is a relatively
new bodywhen it has suggested in some of the guidelines
produced what may be seen as a reduction of sentencing, although
it may not be so, there is a howl primarily from sections of the
media that the council is going soft on crime. It is significant
that when that happens criticisms are very robustly directed towards
the Sentencing Guidelines Council and it is asked what mandate
it has to interfere with what is the going rate, so to speak.
Indeed, there is pressure on it to increase the going rate and
a lot of things have happened which have had that effect, not
least the tariff for those who will be sentenced to life imprisonment
which legislation increased very substantially for no apparent
Q10 Ms Buck: Should the sentencing
decisions of judges and magistrates be subject to monitoring and
review to test their effectiveness? What information additional
to that which we currently hold would be required to make that
Lord Woolf: I have no problem
with monitoring and reviewing. I think that more research into
those matters to make that available is very beneficial. In doing
that I should also want the cost to be taken into account because
that is very significant. If one is producing sentences which
are not effectiveI think that is happening because there
are not the resources properly to fund themone is suffering
a double whammy: first, one is producing an ineffective and very
expensive sentence; second, one has to count the money.
Q11 Chairman: Is there any way of
measuring the effectiveness of individual judges? If one goes
for a heart operation it is possible at least in principle to
find out the success rate of cardiac surgeons and, provided one
understands the data, it may be of interest, but I am not aware
there is any way of assessing the sentence that a particular judge
passes judged, for example, by the criteria under the Act of 2003.
Is there any way that could be done?
Lord Woolf: First, I think that
more information could be available to the judges as to the effectiveness
of their sentences. I have long encouraged the idea that there
should be feedback to judges so they are told. What happens now
with the majority of sentencing is that the sentence is passed
and that is the last the judge hears of it. You do not know. When
I was a young man, which was a long time ago, the population was
much more static than it is now. Certainly, if one was a judge
sitting regularly in a particular area outside London one knew
about the quality of sentences. There was great feedback in informal
ways via the Probation Service to the judge to show how sentences
were working. I have to confess that I was responsible for encouraging
the Home Office to take that initiative and it was David Blunkett
who took it. We have gone back to it to the extent we can afford
in the new community prison in Liverpool and also the drug prisons.
If one has continuous interest in what is happening it is good
for the prisoner and the judge. You soon know whether or not it
was right in a particular case to try an order addressing the
person's drug or drink habit, but I am afraid that in a system
that has grown much more complex and bigger it does not happen.
With computers today there is no reason why a judge should not
get regular feedback, and I think that would be very helpful.
I should like to see a judge having more responsibility towards
continuity of the sentence.
Q12 Mr Winnick: I do not know how
one of your predecessors, Lord Goddard, would have been rated
in the league table at the time. Be that as it may, I want to
ask you some questions about prison overcrowding. You have already
said today that the present overcrowding is a cancer eating away
at the system. The latest figures show there are some 80,000 people
in prison. You wrote an article in The Times saying it
is beyond dispute that there is now a crisis. It appears to be
the case that the prison population continues to rise. There has
been a 41% increase in the past 10 years. Other figures go back
further. For example, in 1965 the average prison population was
just over 30,000; in 1975 it was nearly 40,000, and it went up
in 1985 to 46,000 in round figures. Can you give any explanation
for the huge increase in prison population over both the past
10 years and, going on the figures I have just quoted, the past
Lord Woolf: I can only go back
to Strangeways. At the time of my report the prison population
was 44,000 and falling. It was the first time one had seen that
happening. I believe that that was a reaction to the public's
consciousnessI include the judiciaryas to the state
of our prisons and what overcrowding did. One of the things we
did as a result of Strangeways was to improve security to a very
great extent and reduce, rightly, the risk of riots in prisons.
I am glad to say there has been no explosion of the same sort
in prisons since Strangeways. That was a positive sign. But there
is no doubt that the fact you will get prisons exploding causes
those who are responsible for running them to concentrate on the
state of the prisons and take steps, not necessarily long-term
steps, to deal with the situation. You have prisoners being released.
Therefore, you have courts pushing prisoners in the front door
and their release out the back door. You ask me why the population
has increased. I think that two things have had a particular effect
on this. First, I believe that society's attitude has become more
punitive as reflected in the media and, I emphasise, both administrations;
there has been competition as to which political party can have
the reputation of being tougher on crime. I think that the rhetoric
has an effect on sentencing. The second reason is that the way
we look after those who are punished in the community has deteriorated.
This has led to a loss of confidence on the part of both the public
and the courts in the quality of community punishment. They are
not seen as punishments in the way they should be. It is part
of the more complex nature of society. I suppose another factorit
is very difficult to find hard evidence of thisis that
parts of society are becoming more brutal and it is clear that
violent crime has to be dealt with severely.
Q13 Mr Winnick: To take up the point
you have just made, you do not dispute that society has become
more brutal and violent than in the 1960s?
Lord Woolf: I think that is right.
There are probably many explanations for it and I should not like
to hazard a guess as to the main one.
Q14 Mr Winnick: As far as concerns
the present situation in prisons, can you see any way in which
the problem can be resolved as the population is at the moment,
or are you saying that until there is a decrease in the number
of people in prisons the system will not work? Rehabilitation
and protection of the community when people come out is such that
there is no solution except a reduction in the prison population.
Lord Woolf: I would say that no
solution will be really effective apart from reducing the prison
population. The other alternative is to increase the capacity
of the prisons to hold the population. Only one or two of those
possibilities would help. I say as firmly as I can that building
more prisons is not the solution, not least because it means that
more and more resources are being sucked into the hugely expensive
process of building prisons and keeping prisoners within it. What
we really should be doing is to put greater focus on making effective
non-prison sentences. As the recent thoughtful and sensible report
of the Citizens Advice Bureau suggested, the minute a prisoner
goes to prison one should be working on methods to ensure that
he or she is returned to the community in circumstances most likely
to mean that there will be no reoffending. The CAB thought that
it could help on that. There are a number of things that can be
done if only the resources are available, but when we are always
trying to catch up and accommodation to house the number of prisoners
is behind and overcrowding continues it is an unconstructive situation.
Q15 Mr Winnick: To play devil's advocate,
if you like, how would you respond to the tabloids and others
who claim that you and some of your colleagues who say much the
same as you live in a different sort of world from ordinary people
who are deeply concerned about violence and law-breaking and you
do not really appreciate in your own sheltered sort of life what
it is like on the streets day to day? Therefore, when you say
there should be a reduction in the prison population the response
would be: what do you do with people who have been found guilty
by the courts of committing serious offences?
Lord Woolf: I have had those accusations
levelled at me.
Q16 Mr Winnick: I am not surprised,
Lord Woolf: This is not the first
time, and I am well aware of them. I think they are misguided,
not least because, like a large proportion of the population,
my home has been broken into and things have been taken from it.
I am aware of friends who have been mugged, not in this jurisdiction.
My wife and I were mugged in a different jurisdiction that we
visited. We are aware of it. For a very short period when I was
chief justice I was entitled to a government car. It is fair to
say that I abandoned my bicycle; I was tempted to do so by the
government car, but I am back on it now and I cycle up and down
the streets. I travel by Underground, enjoying my free pass.
Q17 Mr Winnick: So do I.
Lord Woolf: I find that public
transport during the period when I had a government car has improved
very considerably. The real answer to the point you make is that
if you are constantly engaged, as I was for 25 years, in criminal
courts and have before you cases of violence and know the harm
has been done to the victims of those crimes you cannot be other
than deeply aware of what happens as a result of crime. Contrary
to the image you are trying to create, I would say that nobody
knows better just how destructive crime is than a person who sits
in the courts daily, especially in the criminal courts. One has
a rich and unfortunate experience of just what horror can be caused
Q18 Mr Winnick: In my previous question
I was being the devil's advocate. When you advocate a reduction
in the prison population and an effective alternative to prisonsomething
that this Committee will be looking atdo you accept that
in the case of those who have been convicted of violence there
is really a very good case for a custodial sentence?
Lord Woolf: I entirely agree with
you, and always have. I believe that violent offenders should
be treated heavily. The one area where I was criticised by the
media for being too tough was in regard to muggings in the street.
That is the view I take. The ordinary member of the public must
be able to go up and down the streets of this country confident
that except in exceptional circumstances he or she will not be
attacked. My contention is that the best way to achieve that is
not to create a situation where there are overcrowded prisons,
because they do not protect the public; they are expensive and
drain resources but do not protect the public. Of course, whilst
the person is in prison the public are protected, but even the
great majority of people who commit offences of violence are back
on the streets in a very short time. What we should do is ensure
that whilst they are in prison everything is done to make them
less likely to go back to their old ways. We know that there are
things that succeed.
Q19 Martin Salter: In your piece
in The Times on 29 January you wrote that the Home Office
really needed a long-term plan to bring the prison population
into line with the resources available in a way that would reduce
reoffending. You also commented on the hoo-ha around the Home
Secretary's letter; you said that not to send it would be a dereliction
of duty. A couple of points flow from what you wrote. Some of
your colleagues in the judiciary cited the Home Secretary's letter
as a reason or excuse for what might on the face of it seem like
a lenient sentence or two that had been passed. Do you have any
concerns that that whole episode might have smacked of political
interference, or do you stand by your comments that perhaps some
of your fellow members of the judiciary were unduly sensitive
to the approach of the Home Secretary in putting pen to paper
to address a particular matter?
Lord Woolf: I adhere to my view.
I think that the Home Secretary was quite in order doing what
he did. It was done with the approval of the chief justice.