United Kingdom Judiciary Speeches

Lord Bingham of Cornhill
Lord Chief Justice of England

Speech to The National Probation Convention

QEII Conference Centre, London

12 November 1997

May I begin by thanking you very much for inviting me to address this convention, and by saying what a pleasure it is to be with you today.

Given the controversy which has raged in recent years about the appropriate sentencing of convicted offenders, it is perhaps salutary to remind ourselves at the outset that all of us in any way engaged in the criminal justice system - whether police, crown prosecution service, the courts, the probation service or the prison service - all share one clear objective: that criminal activity in this country should be reduced to an irreducible minimum. We all share the same objective; the question is how best to achieve it.

It is also perhaps salutary to remind ourselves that all, or almost all, sentences imposed in criminal cases are imposed for the purpose (often among others) of protecting the public. Protection of the public may be achieved either by curing a defendant of his propensity to offend, or by deterring him and others from offending, or of course both. Where, in a relatively minor case, a fine is imposed, that is because a fine is considered all that the effective protection of the public requires. Where, in a more serious case, a community penalty is imposed (probation, supervision or community service) that is because, in the particular case, that disposal is judged to be the most effective way of protecting the public. In even more serious cases, where custodial sentences are imposed, the rationale is the same.

A distinction is sometimes drawn between custodial penalties, understood to be for the protection of the public, and community penalties, understood to have some other object. That is, I suggest, an entirely false distinction. With the possible exception of conditional and absolute discharges, only imposed in cases where no public protection is thought to be needed, all sentences are designed to protect the public against further offending in one or other or both of the ways I have indicated.

A third truth, perhaps better understood now than formerly, is that the proper functioning of the criminal justice system depends on understanding, co-operation and mutual respect between the different agencies involved in it. It is tempting for all of us to blame all the weaknesses of the system on the failures of others. But recrimination is wholly unconstructive, and in most cases ill-founded. What is needed, sometimes with some erosion of functional boundaries, is a co-operative endeavour to achieve our common objective.

Different bodies and institutions do of course have different contributions to make to the functioning of the system. Most important is the contribution of Parliament and the central government. We look to them to do, and encourage others to do, everything possible to eliminate the social conditions which favour the commission of crime: family breakdown, poverty, unemployment, drug and alcohol abuse, and so on.

We also look to them to provide a legal and institutional framework which will facilitate to the greatest possible extent the detection, prosecution and appropriate disposal of offenders. While we may become somewhat dizzy at the speed and relentlessness of legal and institutional change, we should not in any way resist well-conceived and properly-funded attempts to address the intractable problem of crime.

But we must also look to Parliament and the central government to will the means: there comes a point at which it is simply impossible to do more and more on less and less. The corollary is that Parliament and the central government have a very legitimate interest in how money is spent. If the implementation of certain sentences is shown to be very expensive but very effective, that may in appropriate cases be acceptable. If it is very expensive but not very effective, there is an obvious case for using resources differently.

The police of course have many duties other than the prevention of crime. But initiatives taken by certain police forces in this field, with the full support and co- operation of the probation service, seem to me to be one of the most important and promising developments in recent years.

The sentencing decisions which the courts have to take are very rarely straightforward, because of the many factors of which account must be taken and the competing considerations which must often be reconciled. But I think it is probably true to say that the easier decisions occur in cases at one or other extreme of the spectrum of seriousness. An offender who is convicted for the first time of (say) careless driving or shoplifting is virtually certain to be fined: while thought must be given to the level of the fine, there will be little or no need to consider other disposals. At the other end of the spectrum, a multiple rapist or an armed bank robber will inevitably be sentenced to a long period of custody: the length of the sentence will need to be carefully considered, and perhaps an indefinite sentence in some cases; but again (in the absence of special circumstances) it is unlikely that any other disposal will be regarded as worthy of consideration.

The most difficult decisions, however, arise in cases falling between these two extremes. The offence may be one of some, but not extreme, seriousness; the offender may have offended before; and may have failed to respond to previous sentences. The sentencer may then ponder a custodial sentence; but will be fully alive to the risk that the effect may be to produce a better and more accomplished criminal, to interrupt rehabilitative processes that may have been set in train since the commission of the offence and to encourage an even greater sense of alienation in an offender who may well be deeply alienated anyway.

On the other hand, the sentencer may be concerned that a community penalty may be seen as insufficient punishment both by the offender and by society at large, may encourage the offender and others to believe that the offence in question can be committed with impunity, and may weaken public confidence in the efficacy of the criminal justice system.

It is in cases of this kind that sentencers, often lay justices or assistant recorders or recorders, but sometimes of course more senior judges, are most heavily and fundamentally dependent on the assistance which they receive from probation officers in pre-sentence reports. The court will usually have the police antecedents, but these give no insight into the offender's background beyond the bare record of his previous convictions. If the offender has pleaded guilty, the court will have had no opportunity to assess him personally. Even in a contested case, the court will learn very little about the personal background of the offender, his family history or his personal circumstances.

I cannot exaggerate the help which the courts receive, particularly in cases such as these, from pre-sentence reports prepared with accuracy, insight and objectivity. I greatly welcome the promulgation of national standards governing the compilation of these reports, which has (I think), increased their professionalism and usefulness. I also very greatly welcome the greater objectivity and realism which is now, very generally, to be found in these reports.

If, in a serious case, a custodial penalty is acknowledged to be inevitable or virtually so, the sentencer knows that he is receiving the opinion of a serious professional, and will read any suggestions made as to alternative disposals with respect. Particularly is this so when the author makes an informed assessment of the risk of re-offending by the offender and his propensity to re-offend. I think there has been a trend towards greater objectivity in the writing of such reports, and that is a change to be welcomed.

It is a fact very well known to us all that there has in recent years been an exponential increase in the prison population. This is not explained by any legislative change. It remains the law that a custodial sentence is not to be imposed unless the offence is so serious that only such a sentence can be justified, and the law also remains that no custodial sentence should (save in special and unusual circumstances) exceed the term commensurate with the seriousness of the offence. In other words, the law provides what justice would in any event dictate, that no one should go to prison unless it is really necessary that he should, and no one should go to prison for longer than his offence merits.

The reason for this exponential increase is, I have no doubt, the vocal expression of opinion by influential public figures that custody is an effective penalty. In contrast with a decade ago, when the efficacy of community penalties was widely canvassed, the emphasis has been on custody as the effective disposal in cases of other than minor crime.

Judges and magistrates have been the subject of criticism - none the less influential because indirect - for imposing what are widely portrayed as excessively lenient sentences. This is a view which has found strong support in certain sections of the media. The clear inference from the figures must be that in the classes of case in which a difficult choice has to be made between custody and a community penalty, magistrates in particular but also judges have increasingly been choosing the custodial option.

If so, I regard this trend as a real source of concern. In the first place, one is concerned that injustice may be done, by the imprisonment of those for whom that penalty is not strictly necessary, or by the imposition of terms of imprisonment longer than necessity demands. Secondly, I am concerned that such sentences may in some cases be ineffective. No one doubts for an instant that in the case of serious crime long sentences, sometimes very long sentences, are called for.

It is, however, far from clear that in the middling class of case which I have been discussing a relatively short period of imprisonment is more effective than a community penalty. To the extent that it is not, the individual suffers an additional penalty which is of no benefit to society. And then, of course, there is the question of cost. The cost of imprisoning defendants is enormous, and growing. It may be money well spent if it promotes the objective which I mentioned at the outset, of reducing criminal activity to the irreducible minimum. But it is money very badly spent if it does not contribute to that objective.

Part of the difficulty, I feel sure, stems from a lack of confidence in the efficacy of community penalties. To some extent this lack of confidence may exist on the part of sentencers. But much more importantly, I feel sure that it exists in the mind of the general public, and in the perception of the media.

Where orders are made for supervision or probation or community service, in the mind of the general public there is no penalty imposed at all. I think that this is a problem of public perception which should be vigorously addressed. It is an old and valuable tradition that a probation officer responsible for administering a community penalty should be a source of advice and support and practical help to the subject of the order. But it should be very clearly understood, as is now the case, that the probation officer is also a demanding taskmaster. It is in my view fundamental to the success and the perceived efficacy of community penalties that the probation officer should be clearly seen as a person who will insist that appointments are kept, that work is done and that obligations are fulfilled to the letter.

I have myself had the opportunity to visit the Sherborne House Probation Centre in Bermondsey, and I was left in no doubt that the programme implemented there had a very real chance, in many cases, of redeeming those who appeared set on a remorseless relapse into a life of crime.

The commitment of 4½ days per week over a period of 10 weeks can, not be dismissed as a slap on the wrist, and clearly makes demands on the participants which some of them find difficult to cope with. I have also had the opportunity to visit sites on which community service orders were being worked out, and it was again evident that the hours ordered were being worked, and worked in a serious and sensible way. It was again clear to me that the working of a significant number of hours not only made demands on the offenders which they made a genuine effort to meet, but also offered some opportunity to acquire skills and habits of work which were novel to some of those attending.

If imprisonment is to be what it should, the ultimate resort of the sentencer, the penalty to be imposed when no other order will serve the proper ends of sentencing policy, it is essential that community penalties should be well-designed and demanding and that enforcement should be strict, not here and there but universally. It is also essential that they should be understood to be so by sentencers. This is why the high level of trust which exists between the courts and the probation service is of such importance. If, in the current climate, in the borderline class of case which I have been discussing - and I am not, I repeat, discussing serious offences for which there is no effective alternative to custody - the sentencer is to choose the non-custodial option, he or she will wish to know in some detail what the community penalty involves and to be reassured, so far as possible, that it is likely to be effective.

The pre-sentence report is the medium through which the probation service delivers its professional judgment to the court. The recommendations will not always be accepted. But the better and the more realistic the report, the greater the help which it will give to the sentencer faced with the need to make a difficult and fateful decision.

May I end by extending to you all the thanks of judges and magistrates at all levels for the work that you do and the help that you give us. I have no doubt that the quality of sentencing decision-making at all levels is improved immeasurably by the help you give us. That is something for which not only we, but society as a whole - including, I would hope, the subjects of the sentences - have every reason to be grateful. I am well aware of numerous initiatives which you are taking to improve further existing methods of handling offenders in our midst. I detect no hint of lethargy. I speak for the judiciary in wishing you well in your vitally important task, contributing as it does to what is, as I said at the outset, a common objective.

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