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
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
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
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
SENTENCING: PART 12
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
Sentencing Guidelines Council: Clauses 160 to
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
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.