Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Judd Excerpts

Tuesday 7th February 2012 Lords Chamber

[Lord Judd]

My Lords, I am very glad to have been able to add my name to these amendments, and would like to say how much I admire the work of the noble Baroness. It is not simply the utterly sensible amendments that she brings to our deliberations, but all the work she does to follow up what she is arguing for in this House. Of course, that is a two-way process, because it also means that when we listen to her, we listen not just to the voice of theory but to the voice of experience and practical engagement. That is a special asset to have in our deliberations.

Punishment is the easy bit. Of course crime must be punished—there is no argument about that—but in a sane society in which reason prevails, the greater challenge is how lives are rebuilt and how, as I said in argument on a previous amendment, we can enable people to become positive citizens contributing to the well-being of society, as distinct from indulging in delinquent behaviour. That is the real challenge. If that is to be done well, it means that those individuals have to be looked at as individuals.

I remember talking to a chief superintendent of police who was just about to retire when I was president of the YMCA and he was a prominent and active member of the YMCA in Britain. It was a private conversation, so I hope that he will not mind my relaying what he said. He said: “You know, it is a very lonely moment when you are sentenced. Some people respond with more bravado, but the overwhelming majority at that moment feel very lonely. I have always felt that where we get it wrong in our penal policy is that that is the very moment when someone should be there at the elbow of the person concerned saying, ‘Isn’t this a terrible mess? How are we going to sort it out and try to make some sense of this situation?’”.

What the noble Baroness said was not only emotionally powerful—there is no harm in emotion of the kind she was displaying in her remarks today; it is very healthy, and the passion which she feels for these issues is a great challenge to us all—but so important. So many of the people with whom the penal system is dealing have not had proper relationships, have not had people who cared, have not had families able to cope with or relate to them in their situation. There is a desperate need, as I have said in other debates in this House, for someone to take the hand of the person concerned and walk with them through the experience back into full rehabilitation in society, back into the job to which the noble Baroness referred, which is so central.

If that is the case, if we are asking magistrates and others to function on our behalf to tackle those issues, it is imperative that we do everything we can to ensure that magistrates know of all the possibilities which can be considered for the individual in front of them. To have a limited range of possibilities, or not to be very much aware of the range of possibilities, is disastrous because it means that we are not taking seriously the issue of rehabilitation.

On the issue of short sentences, I remember on a visit to a prison—in fact, it has happened more than once in conversation with prison officers—the prison officers themselves saying what nonsense it was and asking: “What on earth are we expected to achieve with these young people? How on earth is this helping them? They are going through a more disruptive experience. They are being taken further away from society and the chance to start rebuilding their lives in detention. What are we doing? What are we expected to be administering on behalf of society?”. If it is a matter to be dealt with by some by awarding a short sentence, there must be other means available which are more constructive and intelligent.

I conclude what I want to say in support of the noble Baroness by repeating something which has been said in debates before but which it is not possible to repeat too often. On the door of every cell should be “Rehabilitation?”—with a question mark after it—because, if we are not achieving rehabilitation, what are we doing? We are losing an individual, and we are almost inevitably ensuring future costs for society not only in terms of reoffending but in terms of the cost of dealing with the consequences of that reoffending, with further spells in prison or whatever. I believe that in the whole culture of our penal system and in the culture of the professions that administer our penal system there should be a passionate commitment to achieving at all costs, wherever possible, the rehabilitation of offenders. That is why these amendments tabled by the noble Baroness are so right. They make economic and social sense, and I hope that they also make sense when we think about what the values of a decent and civilised society should be. I hope that we care about the individual.

This morning in my old constituency of Portsmouth, where Dickens was born, I attended a ceremony to mark his 200th birthday. During the service in the great St Mary’s Church in Portsmouth, which was part of the ceremony, I was startled to hear a piece by Dickens himself on the application of Christian values. I had not read it before, to my shame, but I commend it to Members of this House. With his social commitment and understanding, and his brilliance in setting out the issues with which society is confronted, as well as its responsibilities to put them right, Dickens speaks directly about the whole principle that, if we call ourselves Christians, we must commit ourselves to caring not simply for the victim—although of course the victim matters—but for the offender, with a commitment to enabling the offender to sort out his or her life.

[Lord Ramsbotham]

My Lords, I, too, have added my name to the amendments tabled by the noble Baroness, Lady Linklater. At the outset, I echo the tributes paid to her by the noble Lord, Lord Judd, and at the same time I pay tribute to the noble Lord for the passion and compassion that he always brings to debates on these subjects.

On Amendment 176ZAA, I have long thought that the provision of sentences with prospectuses of what the prison and probation services can and cannot do for offenders would serve a very useful purpose for the whole of the management system, and therefore I should like to widen the amendment slightly to include the Prison Service. While the noble Baroness was speaking, I could not help reflecting that for the first 100 years of its existence the probation service worked very closely with the courts and the police. It is only in recent years that it has been made subordinate to prisons, and that, to my mind, has given the wrong emphasis.

Everything that the noble Baroness said about Rethinking Crime and Punishment I share, because I had the great privilege of being a member of the initiative’s steering group. I entirely endorse everything that she said about the place of the community sentence. However, perhaps I may refer to the prospectuses. First and most obviously, they tell sentencers what is or is not possible and how long that might take to be achieved, because there is no point in somebody embarking on a course which cannot be completed during the sentence.

Of course, there is a danger that, as a result, some sentencers might award sentences that are longer than normal in order to complete a behaviour programme. I believe that that is a fault in the right direction, not least because the present practice of awarding sentences that are too short for the completion of any meaningful remedial action is wasteful of both time and money. As a side-effect, the provision of such a practice might also encourage the adoption of what happens in some Scandinavian countries where, at the time of sentence, the sentencer lays down what course of programmes a prisoner has to complete during that sentence. If these are satisfactorily completed before the end of the period of the sentence, the governor of the prison can take the prisoner back to the sentencer and ask for earlier release on the grounds that the conditions laid down have been met. Prisoners can then be released on licence, which saves prison time, space and money.

The second side-effect would be to force the prison and probation services to cost and plan all their offending behaviour and other courses. Knowing how many courses and programmes are required to meet the need of sentencers would for the first time give some indication of the actual shortfall in the current provision. What is more, it would allow individual prisons to be made responsible for conducting certain courses in particular geographical areas rather than the current inefficient system in which individual governors are not bound to carry on from where their predecessors left off—remarkably, and expensively, they are left to decide how they will satisfy particular targets and performance indicators, which may have no relation to overall need and involve the cancellation of programmes initiated by their predecessors. In other words, knowing what has to be done and by when would at last allow some certainty and stability to be applied to the role of each and every prison. I do not want to say more, or to say more about short sentences, except to echo everything that the noble Baroness said. The figures prove how much cheaper community sentences are.

Actually, there is another side-effect because if it was accepted that community sentences were to be the norm—the default position—and the short sentence the opposite, improvements on the provision of the community sentence would be forced, in order to give the public confidence that that is worth while. That links with Amendment 176A because I believe that the prospectus of what can be done in those community sentences is just as important as what is done in custody.

[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.