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You are here: BAILII >> Databases >> United Kingdom Judiciary Speeches >> Lord Bingham of Cornhill, Lord Chief Justice of England & Wales : Speech to the Probation 2000 Conference [2000] UKSpeech X3TTB (27 January 2000)
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Lord Bingham of Cornhill
Lord Chief Justice of England and Wales
Speech to the Probation 2000 Conference
QEII Conference Centre, London
27 January 2000
As the second millennium of the Christian era gives way seamlessly to the third, we must all, I think, be uneasily aware that the problems which dominated the agenda of the old millennium remain high on the agenda of the new. The old dragons of war, want, ignorance, disease, superstition and international hatred, if in some instances a little battered, have not been put to flight. It is right and realistic that this conference should be held, in the first month of the new millennium. For prominent among the unsolved problems with which we, and almost all countries in the world, continue to grapple are the intractable, age-old problems of crime and punishment, the struggle to reconcile the proper demand of the public for protection against dangerous offenders with recognition that: "A man's a man for a' that".
Has, then, the experience of past ages brought us any nearer to a solution? It would be a damning insult to human intelligence and imagination, and a grave slur on the reputation of many courageous thinkers, pioneers and reformers if one felt obliged to give a negative answer to that question. Happily, I do not think we are driven to that extremity. Instead, it is I think possible to venture four axiomatic propositions based on the experience of the past which, if they astonish, do so only by their obviousness.
(1) There is no simple, straightforward answer to these problems.
From the time of Draco onwards, people have from time to time been beguiled by the notion, understandable enough, that the commission of crime would be suppressed or greatly reduced by the imposition of a severe penal code, ruthlessly executed. Thus death, mutilation and the infliction of severe physical pain have all had their day, until the severity of the penalty came to defeat the object it was intended to promote and the public came to regard the punishment as scarcely less repulsive than the crime.
In more recent times it is of course imprisonment which has been seen by some as the simple, if expensive, answer to the problem. With over eight million people held in penal institutions around the world, it is an answer with a wide measure of international support, even though half the total are held in just three countries, the United States, China and Russia. With 1.7 million prisoners in the United States alone - a rich, advanced democracy, generally regarded as freedom-loving - one must recognise the strength of popular opinion on this subject.
Our own rate of imprisonment per head of the population is, mercifully, well under a fifth of the American. But we will all recall a political slogan widely heard a very few years ago; we are all aware that our prison population increased, very rapidly, by 50% in the mid - '90s; we now have, next to Portugal, the highest rate of imprisonment in Western Europe; despite an extensive prison-building programme, a considerable number of our prisons are over-crowded; and the more over-crowded a prison is, the harder the task of rehabilitating the individual offender in prison. Slogans, it seems clear, are not enough.
A simple, stock response to the problem of offending might no doubt be appropriate if the causes of offending were themselves simple and uniform. But no experienced professional would, I think, hold that to be true. What experience does help us to do is identify features which occur so frequently in the personal histories of offenders as to indicate some vulnerability towards the temptation to offend. Family breakdown, discord and violence; abuse; deprivation and want, both material and emotional; lack of education and training; early addiction to drugs and alcohol or both; unemployment; lack of prospects, self-esteem and hope; the pervasive influence of an offending culture.
Most of us, I think, would list these among the features most often found in a delinquent case history. We might argue about their relative significance, both generally and in any given case, but we would not deny them a place in the list. And yet: for everyone who grows up, subject to these and other influences, and offends there will be someone else, another member of the same family perhaps, who does not. So an approach based on pure causal determinism, with no allowance for the make-up of the individual human being, must mislead.
Most of us, for reasons which may be religious, or moral, or intuitive, accept that human beings are invested with a power to choose, a power to make decisions which society would regard as right or, it may be, condemn as wrong. We are buses, not trams. Acceptance of that proposition should not, however, drive us into assuming, quite spuriously in my view, some equality of temptation.
Most of us, I venture to think, have never had to resist the temptation to kill, or wound, or rob a bank, or commit rape, or traffic in drugs or forge £50 notes. This does not mean we are better people; it just means that we have been lucky enough to pass our lives in social milieus in which such temptations are not commonly encountered.
Most of those who call for the door to be locked and the key to be thrown away are, I feel sure, similarly privileged.
My second axiom is very closely allied to the first, and rivals it even in its capacity not to astonish. It is:
(2) There is no single solution
Public debate on penal policy appears sometimes to assume that there is a choice between, on the one hand, imprisonment and other penalties of that character and, on the other, community penalties.
In any given case, of course, the sentencer may face just such a choice. But it is, generally speaking, a false dichotomy. Few if any responsible commentators would suggest that a convicted serial rapist should not suffer a significant, punitive term of imprisonment. Equally few, it is to be hoped, would favour any disposal other than a community penalty in the case of a young, vulnerable first offender convicted of not very serious crime. Between these extremes lies an almost endless number of cases, all of them differing in factual and personal ways.
But once it is accepted, as it must be accepted, that any rational penal system must provide severe punitive sanctions for some cases and rehabilitative community penalties for others, and must also, preferably, provide some penalties which both punish and rehabilitate, then certain things follow.
The first is that, subject to the constraints of manageability, control and expense, it is advantageous to give the sentencer a wider rather than narrower range of sentencing options, because the wider (within reason) the range of options open the greater the chance of making the order which is most apt in the particular case. In this context the legislative eclipse of the suspended sentence of imprisonment is, I think, unfortunate.
One of the very encouraging developments of recent years, as it seems to me, has been the development of offence-specific programmes designed for those guilty of a particular kind of crime. It is a development for which probation services can justly claim a very major part of the credit. It should surely be obvious to any thinking person that the psychological problems of (say) a husband given to inflicting violence on his wife, or a person sexually attracted to pre-pubescent girls, or a person prone to lose his temper and resort to violence when full of alcohol in a public house are, or may be, very different. There is no very good reason why a programme designed to address the problems of one of these groups need be particularly relevant to the problems of any of the others, and the more detailed and specifically-focused a programme is the more irrelevant it is likely to be to those not involved in that class of offending.
I have a little knowledge of some programmes which now exist to address problems of anger, and inadequate thinking, and lack of victim understanding, and sex offending, and domestic violence and other fields of delinquency. This audience must contain a vast treasure-house of experience of these and other offence-specific programmes, some known to me by name and reputation, others not. This seems to me, I repeat, a vastly encouraging development, replacing the sledgehammer, the blunderbuss and the philanthropic panacea by a range of carefully designed and researched offence-specific programmes.
I know I preach to the converted in laying emphasis on the terms "carefully designed and researched". For if programmes of this kind are to command respect as credible sentencing options they must comprise a structured course of sessions at which attendance is required and which involves working through a predetermined curriculum to reach (it is hoped) the prescribed outcome. If attendance at a course is a condition of a court order, then it is plainly important that attendance should be rigorously enforced; otherwise, the condition will be treated with contempt. It is, I think, a most unfortunate feature of our current enforcement regime that the interval between the offender's failure to comply and his return to court should often be so long. It is important that such courses, where attendance is ordered, should be intensive, demanding and in a very real sense compulsory.
I also think it important that, like other forms of education today, they should be the subject of objective, independent evaluation. There is no purpose in devoting time, effort and resources to programmes which, however well-intentioned and admirable in conception, are not shown to have a perceptible effect on the conduct of an acceptable number of offenders. It would no doubt be utopian to suppose that any programme would ever achieve a success rate (however success is judged) of 100%; human propensity and deep-seated habit would preclude such a result. But if a significant measure of success is not achieved, it is time to think again. The current emphasis on discovering what programmes work in practice, and concentrating attention on them, is in my view to be applauded.
There is in the penal field a long history of willingness to learn from others, at first from France, Germany and the United States. Since the problems faced by the developed nations are, in all essentials, the same, it is obvious good sense to learn what we can from the experience of others. This, I think, we have continued to do, most recently with reference to New Zealand and Canada. This must, surely, be wise: we cannot afford to deny ourselves democratically acceptable responses to crime which have been found to be effective elsewhere. But such initiatives, unless openly recognised to be experimental, should (I suggest) be based on hard, proven fact: for this is a field, almost more than any other, in which the scope for ill-founded assumption and unsubstantiated prejudice is boundless.
While recognising, as I have done, that there are some crimes so grave that only a sentence of imprisonment will be appropriate, and others of such a different character that such a sentence would be quite inappropriate, we must firmly discountenance the view - as modern practice encouragingly does - that programmes designed to address the causes of criminal offending can only be practicably and meaningfully carried out in the community. The loss of liberty which imprisonment involves is of course, and intentionally, a punitive process, a fact which most of our prisons do little to conceal.
But time and again, we encounter persistent offenders whose long record of offending can be traced to a single, unaddressed failing, most often addiction to alcohol or drugs or inability to control the temper, or various forms of sex offending. If, when such offenders are involuntarily confined, sometimes for long periods, such causes of offending are not addressed as soon and effectively as can be achieved, an invaluable opportunity is lost.
While I do not in any way underestimate the practical difficulties which it would, in current conditions, involve, I think it would be beneficial if sentencers were able to impose a sentence of custody coupled with a requirement to undergo prescribed remedial treatment during the custodial term; if the offender refused to undergo or co-operate in the treatment, that could be reflected in an extended penalty.
It is time now to move on to my third unsurprising, but very important, axiom, which is:
(3) No one can win the war on his own
If we had been asked, a century or so ago, to identify the elements of our criminal justice system, we would, I think, have listed the police, the criminal courts and the prison service.
The main function of the police would have been recognised to be the investigation of crime and the apprehension of suspects. The Victorian constable no doubt exercised an unofficial disciplinary function among the young of his neighbourhood, and (as compared with today) the police exercised a much more prominent prosecuting function, but these activities were ancillary. The criminal courts, then as now, exercised a quite distinct constitutional function, determining the guilt of those accused of crime and imposing sentence on those convicted. The function of the prison service was to confine those, of all ages, sentenced to imprisonment and promote the personal reformation of those confined.
A century later it is evident that these three bodies have retained these central functions. But the police carry out a range of sensitive and socially important functions well outside the bounds of what might be regarded as mainline policing: educational functions; notably successful diversion projects; and a measure of surveillance in relation, for example, to registered sex offenders. The criminal courts are sometimes misdescribed as an agency of the criminal justice system. It is necessary to emphasise that they are nothing of the kind. They represent one of the pillars of the constitution, independent of the other two and in particular of the executive.
The criminal courts' central sentencing function has remained essentially the same: to strike a judicious and often elusive balance between the requirements of retribution and deterrence on the one hand and the needs and deserts of the offender on the other. But the sentencer's task has over the intervening century become, in many cases, a much more sophisticated one: partly because of the greatly extended range of sentencing options, partly because of the vastly more detailed information now often and valuably available to the sentencer, partly perhaps - but more doubtfully - because of better understanding of the psychological and social causes which contribute to delinquency.
The prison service still confines and reforms. This latter function has, I think, been more than ordinarily subject to changes of penal fashion over the century. There have been times when confinement has been thought to offer serious opportunities for education, training and rehabilitation, and other times when, despairingly, such beliefs have been regarded as little more than an idealistic pipedream. At present, I think, and I welcome the fact, the former school is in the ascendant, and I have no doubt that the prison service now assumes and discharges a more proactive reformative role than ever before. This can never be a justification for sending to prison anyone who need not be there; but there can surely be no justification for failing to make such constructive use as is possible of the time spent in prison by those who do need to be there. The interests of society are much better served by the release of a humanised offender after a shorter term than the release of a brutalised offender after a longer.
While there have, as I suggest, been some changes in the function of the police, the criminal courts and the prison service over the past century or so, these are not, singly or cumulatively, the most momentous changes which our developing experience has brought about. Those changes are, I suggest, twofold: first, the emergence of other bodies recognised to have a crucial role to play in tackling the age-old problems of delinquency; and, secondly, recognition that it is only by willing and effective collaboration between these bodies that the best results can be achieved.
Foremost among the new players is the probation service, whose role is and must surely continue to be central, in relation to those who are in prison, and those who are in the community, and those who are making the fraught transition from prison back into the community. It is difficult to imagine a more sensitive and more difficult role. Plainly it is vital that probation officers command the respect of those committed to their care, and that will not be earned if they are knee-jerk apologists of everything their charges do amiss. But it is equally vital that they earn the trust and confidence of their charges, which will not be forthcoming if they are seen simply as old-style plantation overseers. I find it hard to imagine an effective penal system which will not rely very heavily on the professional skills and experience of the probation service, and I hope that it will be given resources commensurate with its enormously important responsibilities.
The probation service has, however, been the first to recognise the extent to which it depends on the help of other bodies, notably the health and education services, social service departments and private charitable bodies working in the field. The corollary of recognition that the causes of criminal offending are not, usually, simple and singular has been recognition that a range of different professional disciplines may have an important contribution to make towards the finding of solutions.
As already observed, the family background of many offenders is dire; the intelligence of many offenders is low, and their educational experience negative or traumatic or both; many are afflicted by medical and psychological problems, often the result of addiction. These are not, emphatically not, easy problems to resolve; but without the willing co-operation of all bodies with a constructive contribution to make they are impossible to resolve. The breaking down of barriers, whether disciplinary, geographical, organisational or functional, seems to me to be one of the most promising developments of our time.
In these developments I would wish to mention, in particular, the work of privately funded charitable bodies. It is one of the oldest and best traditions of our country that local communities have drawn on the goodwill and service of their citizens to seek to redeem those of their number who have shown a tendency to transgress. Such bodies have an admirable record of pioneering achievement in different, often very specialised, fields. There can be very few, if any, areas of the country where such schemes are not to be found, and they deserve the fullest support as important contributors to the end we all wish to achieve.
I come then to my fourth and last axiom, which is:
(4) A fair and effective penal policy must be underpinned by public understanding and support
I do not know if there is any other country in the world in which the purpose and practice of penal policy are as widely misunderstood as in this country. The extent of the misunderstanding here is not a matter of speculation but of fact.
Many present will be familiar with the research findings published by the Research and Statistics Directorate of the Home Office in 1998. A great majority of those questioned thought that recorded crime rose between 1993 and 1995. In fact it fell by a significant percentage. An even greater proportion of those questioned exaggerated, sometimes grossly, the proportion of crimes which are violent. Asked to estimate the percentages of rapists, burglars and muggers sentenced to imprisonment, more than half of those questioned very seriously underestimated the true percentages. Comfortable in their ignorance of the true facts, a large majority of those questioned went on to opine that sentences were generally too lenient (half thought much too lenient), and a large majority thought both magistrates and judges to be "out of touch", the judges more so than the magistrates. All this against the background already referred to, of a prison population which has risen steeply in recent years in a country which imprisons more of its population than any Western European country other than Portugal.
Now it is of course an irritation to those seeking to do a serious professional job to be constantly accused of excessive leniency and of being out of touch, but this in itself is unimportant. What is important, in my view very important, is that this widespread misunderstanding undermines confidence in the sentencing process itself. The point was very well and clearly put by the Home Office researchers:
"Multivariate analysis strongly suggests that, at least in part, ignorance about crime and sentencing practice fuels public dissatisfaction. Those who were most dissatisfied were most likely to overestimate the growth in crime and the degree to which crime is violent, to underestimate the courts' use of imprisonment and to under-estimate the clear-up rate.
"Those who were most likely to underestimate the courts' use of imprisonment had lower educational attainment than others, were likely to be older and were more likely to read tabloid newspapers. Women were more likely than men to underestimate the proportion of convicted rapists sent to prison and owner- occupiers more likely than others to underestimate the use of imprisonment for burglars. When people were asked about a real case of burglary, their sentencing prescriptions were, on balance, well in line with current sentencing practice....."
When passing sentence on any offender, the court is acting in the name and on behalf of the crown, which may for this purpose be taken to represent the general body of British citizens. Those who supervise offenders and administer the orders of the court act on the same basis. It is highly desirable, in each case, that the measures taken should command the confidence of those in whose name they are taken. Otherwise there will be a belief, nonetheless strong for being misplaced, that the law does not afford members of the public the protection it should, and encouragement is given to lawless acts of private vengeance.
The Prime Minister has suggested that a politician has no more right to complain about misreporting in the media than about the weather. One sees his point. But any politician is, if successful, a propagandist; and he has the means to influence the political weather. By contrast, those engaged in administering criminal justice or supervising offenders, whether as judges, magistrates, police officers, probation officers, social workers, teachers, doctors, psychologists or prison officers do not have a propagandist function. It is not our primary task to educate the public in the working of the penal system and sentencing policy, beyond explaining why a particular sentence is being imposed and what in practical terms it means.
It is of course more eye-catching and more entertaining to dash off a few paragraphs of finely-honed abuse directed at a judge or magistrate who is said, on facts which may or may not be fully and accurately reported, to have passed a sentence which is savagely severe or culpably lenient, instead of reporting the ordinary level of sentences, routinely imposed day by day, up and down the country. But the work of the criminal courts is, in a broad sense, part of the government of the country; it is a part in which people are generally interested; it is something about which, I suggest, the people have a right to be informed; and it is something about which, I further suggest, the media - television, radio and the press - have a duty to inform.
The risk is that, in an effort to maintain the confidence of the public, the courts may be drawn, even unconsciously, into imposing sentences more punitive and less rehabilitative than is objectively desirable. The risk is magnified every time an offender who is not sent to prison is reported as having "got away with it" or "walked free", regardless of the obligation in terms of time and commitment which a well-administered community penalty may involve.
I repeat: there are crimes for which no sentence other than a long term of imprisonment will be an adequate sentence, whether or not the offender undergoes appropriate treatment during the term. But not all crimes call for such a sentence and if, during the years to come we are to achieve a society which is less scarred by the commission of crime and more humane in its treatment of offenders it is important to exploit, with the understanding and support of the public, all the means at our command. In that simple ambition there may, I hope, be found the germ of a new millennium resolution fit for endorsement by this important conference.
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