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Address in Reply to Her Majesty's Most Gracious Speech

My Lords, I propose to address noble Lords on sentencing, with particular regard to a speech made by the Lord Chief Justice, the noble and learned Lord, Lord Woolf, on 12 May, the occasion being the Sir Leon Radzinowicz lecture at the Cambridge Institute of Criminology. Its contents have received very little publicity. I wish to support the Lord Chief Justice's recommendation that the Government should declare a closed season on sentencing legislation because the system has reached the limit of the amount of change that it can, for the time being, absorb. I owe it to the House to declare my limited credentials in taking on that task. Shortly after I became a Lord of Appeal in Ordinary, I was persuaded by my great friend, the noble and learned Lord, Lord Brightman, to engage myself in parliamentary activity, for the following reason: he told me that attacks were frequently made in the House on the judiciary for imposing excessively long sentences. How times have changed. The attacks were usually made by the late Earl Longford and an old sparring partner of mine, Lord Hutchinson. My noble and learned friend Lord Brightman said that the trouble was that there was no Law Lord—either sitting or retired—in the Chamber to repel those attacks and to explain why the allegations could not be sustained. My noble and learned friend Lord Brightman asked me, because I was the "judicial shop steward emeritus" with experience of having presided over a number of sentencing conferences for the benefit of circuit judges, recorders and newly appointed High Court judges prior to the setting up of the Judicial Studies Board, as well as informal discussions with students from the Cambridge Institute of Criminology. I reluctantly accepted being the judicial Aunt Sally. In those balmy days, the prison population stood at about 40,000, which was roughly half the current number. Parliament had laid down the framework in relation to any given crime by setting out the maximum sentence that could be imposed, leaving it to the judiciary, consistent with their oaths, to do justice by sentencing the prisoner on the facts of the case, giving due weight to mitigation as well as aggravating factors, subject always to the right of appeal if given leave. The Court of Appeal, in order to promote consistency of sentence, from time to time laid down guidelines for a particular type of crime, having collected a number of appeals featuring those crimes. It was well recorded in Government White Papers between 1988 and 1991 that, "nobody regarded imprisonment as an effective means of reform". Imprisonment was an expensive way of making bad people worse. For most crimes, not being violent, punishment in the community was likely to be better for the victim, the public and the offender. Nearly 15 years ago, in the White Paper issued by the Government entitled Crime, Justice and Protecting the Public, it was stated: "Nobody now regards imprisonment, in itself, as an effective means of reform for most prisoners . . . however much prison staff try to inject a positive purpose into the regime, as they do, prison is a society which requires virtually no sense of responsibility from prisoners. Normal social or working habits do not fit. The opportunity to learn from other criminals is pervasive". A year later in the White Paper entitled Custody, Care and Justice, which was the Government's response to the Woolf report following the Strangeways riot, it was stated: "The effects of imprisonment can be severe. It breaks up families. It is harder for prisoners to retain or subsequently to secure law-abiding jobs. Imprisonment can lessen any sense of responsibility [for their actions] and reduce their self respect, both of which are fundamental to law-abiding citizenship. Some, often young and less experienced, acquire in prisons a wider knowledge of criminal activity. Imprisonment is costly for the individual, for the prisoner's family and for the community". I understand that the annual cost of keeping a prisoner in prison is currently £37,500. Such was the situation prior to Mr Howard becoming Home Secretary and pronouncing his populist observation—"Let's be clear: prison works". All that means is—so long as the system successfully prevents the prisoner from escaping during his period of imprisonment—that the prisoner is disabled for that limited period from committing any further offences. All you have done is "warehouse" the particular offender. Following that unenlightened speech, the prison population has consistently grown. What has now and for some years shocked the public is the horrifying reoffending rate and its consequences. The cost of reoffending by ex-prisoners is approximately £1 billion per year and approximately 58 per cent of prisoners are reconvicted within two years of being released. The present overcrowding of prisons makes it impossible to train prisoners so that they can obtain honest employment on discharge. It is now well accepted by the Government, the Opposition Benches and I believe the majority if not the entirety of Cross-Benchers that radical steps have to be taken, first, to reduce offending and, secondly, to persuade the public that community sentences are satisfactory options, and can and do deflect the further commission of offences. In the past few years, following the reports of Lord Justice Auld and Mr Halliday, the Criminal Justice Act 2003 has been enacted, although a number of its important provisions have only recently been brought into effect. Section 170 of the Act sets out the purposes of sentencing as: "(a) the punishment of offenders, (b) the reduction of crime (including its reduction by deterrence), (c) the reform and rehabilitation of offenders, (d) the protection of the public, and (e) the making of reparation by offenders to persons affected by their offences". I am surprised that "the protection of the public" is so low down that list. I would have promoted it to second place, but that is a small point. How does one break the vicious circle of offending, then punishment, then release after serving the sentence, and then reconviction? In his lecture, my noble and learned friend Lord Woolf gives grounds for a cautious sense of optimism, which include, first, that there is greater realisation than there has been hitherto that prison sentences are not constructive and should be used only as the sentence of last resort. Secondly, the approach to juvenile offenders has been transformed by the establishment of youth justice boards. The success of that approach has resulted in applying similar provisions to the 18 to 20 year-old offenders. Thirdly, there has been a growing appreciation of the importance of addressing the specific needs of women offenders, having regard in particular to the sharp rise in conviction for drug-related offences. Fourthly, those with mental health problems are to be dealt with in a more appropriate setting than prison. Fifthly, piloting is taking place on restorative justice projects. Sixthly, sentencing technology using electronic tagging has contributed to reducing the prison population. Sevently, there is no clear consultation between the Home Office and the judiciary on legislative proposals and changes in government policy as to criminal justice. A separate committee under Lord Justice Rose, the Vice-President of the Court of Appeal, assists in ensuring that the legislation will work in practice. That is not an easy job, but it is one for which he has much ability. Time does not permit me to deal in detail with the resource implications, which are considerable relative to the actual additional work placed on parole boards and probation officers. The closed season proposal will show whether the good intentions can be put into practice. Nor have I dealt with the Sentencing Guidelines Council, which will provide authoritative guidelines to the courts on levels of sentencing. I should like to end this contribution by saying how delighted I am at the appointment of my noble friend Lord Ramsbotham. If only he had been appointed a few weeks earlier, he might have produced the authoritative contribution which I have sought, albeit inadequately, to make.