Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Woolf Excerpts

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.

[Lord Ponsonby of Shulbrede]

My Lords, I had not intended to intervene in this debate but it has been so important that I felt that I really had to.

Some noble Lords may know that I sit as a magistrate so it is with some trepidation that I follow the noble and learned Lord. I sit as a very junior magistrate in central London and I sit on a probation liaison committee. That committee is of huge importance, both to me personally and to all my colleagues. Of course, we become aware of the sentencing options. It is a training event that happens regularly—it happens every Thursday as well as more substantial training events—and I and my colleagues regard it as extremely helpful to be brought up to date on a continuous basis with all the community sentence courses that are available.

I very much support the first amendment of the noble Baroness, Lady Linklater. It is of huge importance. It is particularly important that it is on a statutory basis because that will recognise the importance of that work in giving magistrates confidence in the community sentences so they can go ahead and issue them. That is an absolutely central point, about which I can talk from my own experience.

I also take the point made by the noble Lord, Lord Ramsbotham, about programmes sometimes being too long to fit in with the length of the community sentence. I have come across this issue several times. One needs to have a real faith and trust in the probation reports that one is given in order to come up, if you like, with the minimum time realistically to achieve the elements within those sentences. Again, that comes down to a question of professional trust between the different elements in any court.

Even though I agree with the general views on minimum sentences, I am rather less enthusiastic about the noble Baroness’s second amendment which concerns them. In my experience, some 90 to 95 per cent of the short-term sentences that I have given have been for people who have broken their community orders. I understand that that is not an attractive argument but that is the reality of my sentencing experience here in London. Of course we constantly look at the alternatives. No one wants to give short-term custodial sentences. I understand that they are very often ineffective, but the reality is that very often the people to whom one gives those sentences have already failed on their community orders.

[Lord Woolf]

My Lords, does the noble Lord not think that the amendment clearly covers that case? It allows a short sentence to be imposed when there is no other appropriate way of dealing with the offender. If you have imposed a sentence and the offender has not complied with it, surely that is a classic example of a situation where there is no other appropriate method of dealing with the offender. I say that with diffidence because I appreciate how difficult it is for magistrates to deal with the sort of offender the noble Lord has just described.

[Lord Ponsonby of Shulbrede]

The noble and learned Lord, Lord Woolf, is of course correct. Magistrates already give their reasons and say why it is so serious that only a custodial sentence will do. I was really addressing the speech made by the noble Baroness, a substantial part of which was against short sentences per se. I understand that the amendment does not make that point, but, because of her speech, I felt duty bound to point out that the reality is that we are very often sentencing for breaches of community orders. Nevertheless, this is an important debate and I am happy to support both amendments.