Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Judd and Lord Woolf

Monday 12th March 2012 Lords Chamber

[Lord Woolf]

My Lords, rightly, we have heard a lot about victims so far in this debate and, if this amendment is not accepted, we are going to create another victim—the justice system. Government after Government have struggled to find ways of curtailing the ability of those who seek to justify their presence in this country by excluding them through legislation that Parliament has passed in a series of Bills—legislation which has made the law into the state in which it is now and which has already been vividly described.

In those attempts, there is normally strong support in the other place and probably in this House because it is thought that often the legislation has popular appeal. Those who said that the Government were creating a situation which would be difficult, if not impossible, to administer and adjudicate upon were not listened to. So far as I recollect, the only occasion when a Government were forced into reverse was when it was said that the legislation they were proposing sought to prevent access to the courts. The previous Government realised that that accusation, made in various quarters, was justified. To their credit, they realised that, because of the seriousness of the criticism, they had to withdraw, as the legislation would indeed have prevented admission to the courts. Of course, the issue that we are now considering is not quite as dramatic as that but I can tell the House, based on my experience, that the consequence of removing legal aid altogether—I emphasise “altogether” because we are talking about taking it out of scope—could have very serious consequences for the administration of justice.

If you go along to the Strand, where you will find our most senior court apart from the Supreme Court, you will see that much of the time of the Royal Courts of Justice is spent dealing with the problems of immigration law. The Supreme Court, in its short existence, has found that a sizeable proportion of its diet again involves immigration. I urge the House to think about the consequences for the legal system of depriving those who desperately need legal assistance of the ability to get that assistance. Without it, the task of the courts will become even more difficult than it already is, as amply confirmed by the statements from senior courts to which the House has been referred. I urge the Government to think very seriously about this amendment because it is of great importance to the legal system of this country.

[Lord Judd]

My Lords, the noble and learned Lord has reminded us very powerfully of the damage that can be done to our whole system of the administration of justice. Perhaps I may briefly make two wider points arising from that. One is that the Government are always telling us how they seek to play a constructive and powerful part in the deliberations of the international community in finding the solutions that matter for humanity as a whole. I can think of no more calculated way of undermining the respect in which we are held and the influence that we bring to bear than if there seems to be specific, mean action of the kind proposed. I do not want to exaggerate, as it would be quite wrong and irresponsible to do so, but I sometimes get very vexed. We all recognise the importance of joined-up government and we all recognise that we want to build a stable and secure world, but how does it help if there are increasing numbers of embittered and frustrated people having a bad experience at the hands of our legal administration in this country? How does that help to build international security and stability? I say no more.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Judd and Lord Woolf

Tuesday 7th February 2012 Lords Chamber

[Lord Woolf]

It is with great diffidence that I seek to say a few words as almost everything that can be said on this subject has been said by the three very distinguished noble Lords who preceded me. This is ground that has been well trodden. I fear that the importance of the two amendments may not be appreciated for that reason and that it will be said, “Oh yes, we all know everything contained in the amendments and therefore we can do without them”. Perhaps I can rely on my experience in a different capacity to enable me to say that such an approach would be wrong.

For five years, at least, it was my responsibility to try and oversee the sentencing in the courts of England and Wales. We all knew that our sentencing was not working as well as it should. We were distracted from time to time by arguments about whether prison worked but that really was not the issue. The issue was: were we imposing sentences that would most likely result in the offender who was before the court not reoffending but instead, as a result of his previous offending and being brought before the court, setting himself or herself on a new road to live as a law-abiding member of the community? Every time that could be achieved—it was not easy to achieve—the community would receive protection that it would not otherwise receive. Every time that that was done, the public would be less in danger than if the course that was adopted was achieved.

That is particularly true in that difficult ground which lies between sentences that can properly take place in the community and those that cannot. There is a very simple way of approaching this. What every court that has to impose sentences involving deprivation of liberty should do is to impose a sentence that is no longer than it has to be. If it has to be a sentence of custody, then it should be as short as is appropriate. In the case of short sentences, any sentencer should have well in mind the real restrictions on what can be done by the Prison Service for those who are sentenced to a short sentence. In the great majority of cases, the position is clear: nothing positive can be achieved by a short sentence, other than to mark the nature of the offence. Magistrates and judges are faced again and again with a situation where they have tried to avoid sending an offender to custody, but his or her conduct has shown that the alternatives are just ignored. Then, with reluctance, the sentencer can, and should, in my judgment, impose, as a final resort, a sentence of imprisonment, as long as the sentencer bears in mind the need to keep that sentence as short as possible. Those are a minority of cases. They are not the cases that make up the statistics to which the noble Baroness, Lady Linklater, referred. They cannot account for that number of people being given sentences that cannot achieve anything positive as the final deterrent.

I tried, and other senior judges tried, to inculcate within the magistrates and the judiciary the importance of keeping the number of prisoners serving short sentences to the minimum. I am bound to say that I never succeeded. Having listened to the speeches made in the course of this short debate, I think it would be marvellous if copies of Hansard containing them could be placed before each judge and magistrate. I am not going to suggest a further amendment to achieve that, but I want to underline that even though it is so well known that the effectiveness of short sentences is so limited, and even though it is so well known that the resources that are spent on short sentences are needed for community sentences, it does not happen. That means that these amendments could just make a difference. For that reason alone, I hope the Government will consider the amendments most seriously. I think it is appropriate to adopt them.

[Lord Judd]

Perhaps I might ask the noble and learned Lord, Lord Woolf, a question. Does he agree that the villain of the piece is the sensationalist writing—if you can actually call it writing—in some of the populist press about penal matters? Does he also agree that we ignore at our cost the reality that even judges—if I may say so, with respect—are human beings, that magistrates living in the community are very much human beings, and that unfortunately there is a degree of intimidation to the effect that if they do what they believe is right in the circumstances they may be pilloried in a way that is going to be unpleasant for them and their families? Is it not time that we all got together and started confronting that element of the media and saying, “You are the very people who are exacerbating the issue of crime and misconduct in society by playing for short-term gains and completely misrepresenting the reality”?

[Lord Woolf]

I would be bold beyond my own abilities to be bold if I were to try to attribute responsibility between the various players in our society as a whole. I think that we all contribute to the present situation. Judges cannot hide behind the media; magistrates cannot hide behind the media; and I certainly would not have sought to shirk the responsibilities I had by hiding behind the media. Nothing would please me more than if the media could learn the wise lesson that the noble Lord, Lord Judd, was suggesting that they should learn.

The noble Lord is absolutely correct. Sentencing is a lonely business. When you are put under considerable pressure in trying to determine the right sentence, you try to put out of your mind what you read daily in the media, but sometimes it is a very difficult thing to do. But it can just make the difference that I have said is so important between taking the decision of imposing a short sentence and taking the much more sensible course of imposing a positive sentence—one of the sentences that the noble Baroness, Lady Linklater, wants the courts to be aware of—which can so much better be imposed of service in the community.