Imprisonment for Public Protection Scheme

Lord Woolf Excerpts

Thursday 13th October 2022 Lords Chamber

[Lord Woolf (CB)]

My Lords, I look to the noble and learned Lord, Lord Garnier, for a sign that the message has got home. This injustice should never have happened in the first place but, having happened, surely there is a very heavy burden on the state to rectify the injustice for which it is responsible. I hope this reminder, if it is needed—I hope it is not—gets home and persuades the House and those responsible in this area of government that enough has been enough.

Probation and Court Services: Workload

Lord Woolf Excerpts

Thursday 9th June 2022 Lords Chamber

[Lord Stewart of Dirleton (Con)]

My Lords, I regret that once again I do not have the specific data in relation to the IPP plan to which my noble friend Lord Moylan refers. Once again, with his patience and that of the House, I will write to him on the topic.

[Lord Woolf (CB)]

Do the figures that the House has been given by the Minister reflect the view of the Lord Chancellor that the approach to probation should include responsibility for giving the views of victims of crime after a person has been convicted?

[Lord Stewart of Dirleton (Con)]

My Lords, disclosure of and taking into account the views of persons who are connected with or are directly victims of crimes is not a matter which bears directly upon the responsibilities of the probation service, but I assure the noble and learned Lord that the views of the Lord Chancellor in relation to the importance of this are being taken into account.

Bribery Act 2010: Post-legislative Scrutiny (Select Committee Report)

Lord Woolf Excerpts

Wednesday 3rd February 2021 Grand Committee

[Lord Woolf (CB) [V]]

My Lords, it is a pleasure to speak on this matter. I do so from a different perspective to the earlier speakers from whom we have heard so far. I say first that, in my view, the Act was undoubtedly the most constructive and sorely needed legislation of which I am aware. It has played an important role in promoting higher standards of ethical conduct in global companies internationally and has helped to make the concept of the “responsible capitalist” a reality.

Having said that, I should disclose that I make those remarks as a result of experience I had before the Act that we are considering came into force. In 2008, I became the chairman of a committee that delivered a report on business ethics in global companies and, in particular, the defence industry, based on the conduct of one company, BAE Systems, one of the world’s largest global defence contractors. In addition, I was for 10 years chairman of the judges of FIRST magazine’s competition to identify the responsible capitalist of the year—a task now performed by my noble and learned friend Lord Judge.

I mention my impressions on the basis of ancient experience because it is important that we should realise that great progress has been made. In our comments today, we must recognise that the criminal justice system in this country is facing probably the biggest challenge that it has faced since the last war. The number of cases outstanding is horrific. Any changes that we would like to promote before the Minister must take place against the reality of that background. A terrible danger exists now of injustice being caused by delay. The remarks from the noble Lord, Lord Hodgson, about SMEs having a sword of Damocles hanging over them should certainly be taken into account.

The reality is that the capacity of the system to expedite more cases that could take a long time to investigate is limited at the present time. Certainly, what has been suggested about further reports in the future should be paid attention. With great diffidence, I suggest that the help that has been given now could be of double value if it were to be given once the present situation of arrears in dealing with criminal cases is not as pressing as I have suggested it is.

In 2008, it was thought that legislation of the sort that was concluded in the 2010 Act would tie the hands of British companies internationally. I am very pleased to know that, in fact, that has not been the consequence. We thought that being a responsible company was becoming more and more important and, therefore, it was vital to make clear that there was some sanction.

I note that there has been no comment so far this afternoon about consent being required. I thought that that might be a matter that would cause concern—though I was not sure why it would cause concern, because the consent that is required now is from the very people who would be responsible for prosecutions if they take place. They presumably will be the best watchdogs over this situation. Of course, they must have—as had been pointed out already—the resources to go into matters of this sort in so far as can be practical, which is very limited at present.

There has been talk also of deferred prosecutions. DPAs are making very slow entry into our criminal justice system. Our Act overtook the law in the United States, but, in the United States, much greater use is made of facilities of that nature. It is obviously the sensible way to deal with acts of corruption. Nothing will influence the directors of companies—no matter what their size—more than if the punishment is on the company’s finances. For that reason, it is important that it takes place.

Rule of Law: Law Officers

Lord Woolf Excerpts

Tuesday 15th September 2020 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, I entirely concur with the observations of my noble friend. As I indicated before, it is one thing for the Executive to determine an issue at the level of international law in terms of a treaty, but they cannot utilise that in order to ignore primary legislation of our domestic Parliament. Therefore, a means has to be in place to address the effect of that domestic legislation, and that is the purpose of Part 5 of the UKIM Bill. It will enable us to bring forward regulations that will do that—and, indeed, regulations that will require explanation and the affirmative approval of this House.

[Lord Woolf (CB) [V]]

In view of the fact that the Minister accepts an obligation on the Attorney-General to protect and safeguard the rule of law, in regard to this matter where there are different views, what action is the Attorney-General taking, along with the other law officers, to show the importance of upholding the rule of law?

[Lord Keen of Elie (Con)]

My Lords, I sought to explain this morning to the Security and Justice Sub-Committee the position that I adopt with respect to this matter, and why I consider that the provisions of the Bill are entirely limited in their intent and effect and fall within the rule of law and the requirements of international law. I certainly do not anticipate that those provisions would be abused. Indeed, if they were, I cannot foresee that either House would contemplate passing the relevant regulations. If they did, I would certainly have to consider my position as a law officer, because I owe my obligations to Parliament as well as to the Government.

Prison Sentences

Lord Woolf Excerpts

Monday 29th June 2020 Lords Chamber

[Lord Keen of Elie]

We do not consider that the pandemic is, in itself, a reason to re-examine the whole issue of short sentences, and we have no plans at present to review the ability of the judiciary to impose them.

[Lord Woolf (CB) [V]]

In view of what the Minister has said, does he agree with me that it would be sensible to follow the example, set in Scotland, of having a presumption against short sentences? That does not interfere with the judiciary’s discretion but it confines it to the minimum of cases, where it is appropriate.

[Lord Keen of Elie]

We consider that the judiciary is in a position to exercise its own independent judgment with regard to the imposition of short sentences, without the need for further guidance.

Sentencing Bill [HL]

Lord Woolf Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Thursday 25th June 2020 Lords Chamber

[Lord Woolf (CB) [V]]

I am grateful to your Lordships for allowing me a second opportunity to contribute to this debate, and I apologise for the delay I caused. I thank most warmly the noble Lord, Lord Adonis, for stepping into the breach. I can perhaps give him the reassurance that, at the present time when hairdressing is not readily available, there is no risk of my being mistaken for him.

The Law Commission is a body that is not loved as much as it should be. However, from time to time—as is the case at the moment—its work reaches the surface and you are reminded, as we have been, just how valuable its role is in our justice system. The Sentencing Bill is a classic example of what a Law Commission such as our own can achieve. I congratulate all who were involved in this Bill on the excellent work they have done.

To state the obvious, the criminal law needs to be as clear as possible. This is particularly true of sentencing; it is also true of substantive law. Justice requires no less. In relation to the law governing sentencing, because of the process of amendment, reamendment and re-reamendment, at times it has become almost impossible to determine what sentence the judge can, should or even must impose. This situation is not fair on the public, the accused, the legal profession or the judiciary, and should not have been allowed to persist for so long.

The situation needed to be tackled, and we are fortunate that this is what the Law Commission has done admirably. It has been a long process of getting to this stage—too long. We have heard reference to the fact that this process started in 2014. I applaud the admirable research paper that we have had from the Library to help us to deal with matters today. It draws attention to the figure that we have heard, which is indeed shocking, of 36% unlawful sentences. Complexity was certainly part of the cause of this.

The Bill should certainly continue to progress and to be welcomed on all sides. I am pleased that no one has felt that it could be improved by tinkering. I especially welcome the clean sweep. I certainly do not think that the Bill’s 420 clauses need to increase. The fact remains that legislation on this subject should not have been allowed to get into the chaotic position that has arisen. Justice is too important to allow this to happen.

A contributing factor is for politicians to recognise that, in the field of justice, it is sensible not to announce alterations to the sentencing agenda off the cuff without proper consideration or deliberation. Frequently, they are wholly unnecessary because the maximum sentence is totally sufficient to cover any foreseeable situation in which to decide the right sentence. I would go further and say that it is much better that matters of detail are left to the sentencer’s discretion rather than trying to anticipate the different situations that can arise. I agree with much that has been said in this debate, particularly by noble and learned Lords.

Probation Services

Lord Woolf Excerpts

Monday 15th June 2020 Lords Chamber

[Lord Woolf (CB) [V]]

I am pleased that I am able to join in the general welcome given to the Statement. We want to focus on the future and not the past, but I must take issue with the Minister talking about a journey, because the journey that took place was in the wrong direction and has damaged a very well-established service in the most unfortunate way. In future, it will be critical that the probation service is given a substantial period of time during which it can be allowed, without interference, to rebuild its confidence and morale so that it is once more capable of playing the central and positive role in the criminal justice system that it did in the past, as I remember well when I was primarily a criminal practitioner on the then Oxford circuit—which I accept was not recently.

[Lord Keen of Elie [V]]

The noble and learned Lord and I differ on the journey taken by the probation service, but we both acknowledge its central importance in our criminal justice system. I am pleased and relieved that he believes we are, if only now, travelling in the correct direction. We plan to bring these reforms into place by June 2021, by which time we hope we will be in a position to ensure that the model we have now refined will deliver the sort of probation service our criminal justice system requires and very properly demands.

Prisoners (Disclosure of Information About Victims) Bill

Lord Woolf Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 20th May 2020 Lords Chamber

[Lord Adonis]

I have nothing to add on this group.

[Lord Woolf (CB)]

I have listened to what has been said in the debate so far with considerable interest. I am afraid that I was unable to attend Second Reading, but I have read the transcript of it with particular interest, and I am bound to say that what the noble and learned Lord, Lord Garnier, had to say then was particularly important. I have been helped in my consideration by what has been said in the debate today.

We start off with the fact that anybody who knows victims who have been put in the position of those who were the sponsors of the legislation which we are now considering knows that what they had to go through because they were not able to find out what happened to their deceased relative causes the greatest anguish. They certainly deserve to be protected from suffering any more anguish than is absolutely necessary. The question before us is: what is the best way to achieve the redress to which they are entitled, bearing in mind the practicalities of our criminal justice system?

I was also very impressed by what the noble Lord, Lord Thomas of Gresford, said, and his reference to a Newton hearing. That deserves important attention, because it is a way of achieving the best possible result when this sort of problem has to be considered. The prisoner should know that if he is voluntarily failing to disclose information that he has, there is a risk that he will suffer a substantial increase in the period for which he is detained. That is the most likely thing to produce the result that anyone must hope for. And if that be so, the question is: what is the best way to achieve this in a just manner? It has to be done in a just manner, because if it is not, there is a danger of making the prisoner, quite undeservedly, the subject of some concern and sympathy.

That brings me to the Newton hearing, because I believe this is best left in the hands of the trial judge. I think that the noble Lord, Lord Thomas of Gresford, said the same thing—indeed, so did the noble and learned Lord, Lord Thomas of Cwmgiedd. The judge has been listening to the trial and he knows the facts of the trial, so for him to deal with it is ideal. Otherwise there can be difficulty. What the noble and learned Lord, Lord Mackay of Clashfern, said about the sort of problem that could arise indicates why it could be important for the judge to deal with it. If he told the defendant that he was going to deal with it, there could be a Newton hearing in public, in which the victims would see that the matter had been investigated properly, and have the judge’s knowing response to what was causing them concern.

If at the end of the trial there were any reason for a prisoner to say, “I can’t recall”, or “I can’t give you information because I didn’t deal with what happened at that stage”, people would hear it, and hear the prisoner being questioned and cross-examined about it. The relatives of the deceased, too, would hear that process being conducted, so they would know that it had been fully investigated. If, as I believe would happen in most circumstances, the judge came to the conclusion that the defendant was erecting a smokescreen to try to hide what he was doing, which was so malicious, the judge would find the matter, and in due course it would, as the noble Lord, Lord Thomas of Gresford, pointed out, be taken into account by the Parole Board.

It has been suggested that that should be done much nearer the time of the questioning being considered by the Parole Board—but I suggest that a better time would be not later in the day, when all sorts of other matters can arise to muddy the water, but immediately after the trial. The record on Newton hearings is very good; they have resolved problems where facts have needed to be resolved, and that is a process which can be conducted fairly.

It is also important that the situation should be one where justice has been done. If it is done in the way that would be carried out at a Newton hearing, that would be achieved. Although the amendments put forward so far may not satisfactorily deal with the situation, I suggest that there is plenty of time before the Bill becomes law to achieve what is suggested in the amendment I am addressing, as put forward by the noble Lord, Lord Thomas. I suggest that is the sensible thing. One of the advantages of a Newton hearing is that the procedure which takes place is short and curtailed at the end of the trial.

[Lord German (LD)]

My Lords, I too was precluded from taking part at Second Reading, but I have read the transcripts in Hansard. There are two substantive issues in this group of amendments, and neither of the two sets takes away the required subjectivity of which the Minister has spoken.

The amendments tabled by the noble Baroness, Lady Bull, supported by the noble and learned Lord, Lord Hope, and my noble friend Lady Barker, seek to ensure that the prisoner has the mental capacity to provide the disclosure information required. The Mental Capacity Act 2005 defines mental capacity by saying that

“a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”

It follows that the Parole Board would need to have received the appropriate professional advice that this test of capacity would not apply. If the advice was that the prisoner lacked the mental capacity under this definition, that would be a material fact for the Parole Board to take into account.

It is presumed that the prisoner could therefore not be expected to provide an answer to the disclosure question if the test was not passed. This test is also a relevant issue in the decision to be taken by the Parole Board on grounds of public safety, which of course is the pre-eminent thing that it has to do. Many noble Lords have outlined in debating these amendments that the Parole Board’s task is to determine whether failure to disclose is both deliberate and culpable. These amendments provide more precision for the board to make its decision.

I now move on to the amendments in the name of my noble friend Lord Thomas. They have the intention of providing the Parole Board with an increased level of relevant information on disclosure by including the issues raised by Newton hearings. A Newton hearing may be held where a defendant has been found guilty at trial or has entered a plea of guilty but the issues in dispute which could affect sentencing were not resolved by the verdict of a jury. In the course of a Newton hearing, the prosecution will call evidence and test defence evidence in the usual manner: in front of a judge. This includes that it can call witnesses to give evidence if required. If the issue is within the exclusive knowledge of the defendant, as is the case with the situations defined in the Bill, they should be prepared to give evidence as well. Where they fail to do so without good reason, the judge may draw such inferences as they think fit. This increased level of information would become available to the Parole Board when taking into account the issue of disclosure in considering parole if these amendments were in place.

At Second Reading in the House, and in Committee today, as mentioned by the noble and learned Lord, Lord Woolf, noble Lords have pressed the Government to make non-disclosure an offence at the time of a first trial. My noble friend’s proposal seeks to take the intention of the words of the noble and learned Lord, Lord Garnier, and put them into an established legal framework. Newton hearings may be a fairly recent legal procedure, but in the matters relating to the purposes of the Bill such a hearing could have a profound effect on the outcome for the victims. Justice is not just a point in time for them; it can last a long time, and for some a lifetime. For victims, coming to terms with their grief, anguish and hurt can last forever. That is why the justice system has to do everything in its power to make this coming-to-terms period as short as possible.

The amendments to this tightly drawn Bill do not determine that there shall be a Newton hearing but simply that, if one has taken place, the Parole Board shall take note of its proceedings, which will provide it with internal and external information—for which I am sure it would be grateful—and will determine whether there was remorse and whether the perpetrator had knowledge of his or her victims that he or she had chosen not to disclose. It may be easier to achieve this disclosure, and hopefully provide solace to the victims, at this early stage.

While these amendments do not require that there are Newton hearings, their inclusion in the Bill would send a powerful message to the judiciary of the significance of such a hearing, particularly its impact on victims, and therefore they might become a regular feature in future—but they are not part of the Bill. I commend these amendments to the Minister and look forward to a positive response to these proposals.

Covid-19: Prisons and Offender Rehabilitation

Lord Woolf Excerpts

Thursday 23rd April 2020 Lords Chamber

[Lord Woolf (CB)]

My Lords, I also congratulate the noble Lord, Lord German, on this excellent debate. It has given a very clear picture of the tragic situation that exists at the moment in prisons. This month sees the 30th anniversary of the Strangeways report which I made into the prison. I am sad to say that the conditions we talked about, and which have been clearly stated by those who have gone before me in the debate, have not improved at all. It is a disgrace that they have not done so and it was bound to happen that, sooner or later, we would have a combination of intolerable conditions in the prisons, which in itself is a risk to the public.

I shall confine the rest of my time to one matter, which is remand prisoners. These have not been found guilty of any offence. The fact that they are on remand speaks for itself. As I understand it, the guidance given to prison governors does not cover remand prisoners, so they are not included. I also refer to one specific case that was brought to my attention and that of the noble Lord, Lord McNally. Like me, he is aware of a father desperately worried about an asthmatic son of 35, who at present has been remanded in custody awaiting extradition to the USA at Wandsworth prison. Conditions are such that they fall within the descriptions we have heard. At Christmas 2015, for four days, he removed his daughter from the care of her mother. He recognises and accepts that what he did was wrong and contrary to a court order, but he was lonely and foolish. He was released on bail there, and negotiations took place with him and his father. What they offered was that if he pleaded guilty he could have a sentence of only eight years in prison; that is on top of the time he has spent in custody.

[The Earl of Courtown]

Will the noble and learned Lord please bring his speech to a close?

[Lord Woolf]

I shall stop.

Offender Management: Checkpoint Programme

Lord Woolf Excerpts

Thursday 27th February 2020 Lords Chamber

[Lord Woolf (CB)]

My Lords, it is a great honour to follow the preceding speakers, who are all so knowledgeable about this subject, and I also endorse what has been said already as to the achievement of the noble Lord, Lord Bates, in securing this debate.

For me personally, this debate raises issues which cast in proportion the remarks which were made in a Sunday newspaper last weekend, which I read when I had the good fortune to be sitting on a Caribbean beach. I think we do not realise that the way we operate so often causes us to focus on the negative because we start off every day by asking questions, and you do not ask questions about things going well. What is important about this debate is that we are focusing on something which goes well.

I am glad to see here our newest Member of the House, who made a maiden speech when I was not here recently but which I have read. She will be very conscious of that point, because she has as great a knowledge of the working of the criminal justice system as anybody I know. Of course I refer to my fellow Cross-Bencher, my noble and learned friend Lady Hallett, who is here with me today. She would know how finding the positive things and making them work is so important and how sad it is that, again and again, useful initiatives do not result in long-term ends.

Octogenarians can have a very valuable service to perform—and I claim to do this today—because they have seen and heard it all before, and they have the long experience of what could work. This is not exploited in the way that it should be exploited so as to prevent the need to return again and again. I say that on the basis of the report I did into the prison riots, which were held a long time ago now, and on the basis of the speech I gave on the 25th anniversary of my report into those matters.

One thing that I hope will happen today as a result of this debate is that this excellent initiative, which has been shown to have so many important qualities, is taken up and embedded. If we cannot manage big reforms, let us focus on many little reforms and achieve a good result as a whole.