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Lord Woolf
The Lord Chief Justice of England and Wales

The 2001 Kalisher Lecture: "Making Sense of the Criminal Justice System"

Central Criminal Court, City of London

9 October 2001

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Many of the people present this evening will have their own vivid memories of Michael [Kalisher].

My memories depend on the coincidence that for more years than I would care to remember I have played tennis in a geriatric-four early on a Sunday morning. Michael also played tennis, but certainly not in a geriatric-four. He used to play on the adjoining court. His standard of tennis was in a different league from mine. He oozed vitality and energy. During the lulls which were a feature of our tennis, I would watch Michael. He was totally committed to the game. Any ball which could conceivably be returned would be chased from the net to behind the baseline. However, notwithstanding his dedication he would always have a smile on his face and whether he won or lost he treated it as great fun. He never lost his sense of proportion. He was always ready to laugh at himself or, if appropriate, his opponent.

Because in those days I did not have my present job, I rarely saw Michael in a different kind of court during the week. However, when I did, he showed exactly the same commitment as an advocate. He had all the qualities which a barrister needs. I regard it as an immense privilege to be invited to give this lecture which bears his name and to do so in this Court building which is probably the most famous court in the world. A Court where Michael was such a familiar and respected figure. The Criminal Bar Association, have many achievements to their name and establishing this series of lectures is one of them.

Another of the achievements, is the choice of today for the lecture. My invitation was extended well over a year ago, but only the CBA could have arranged for the Auld Report to be published the day before I had to give this lecture. The date is particularly appropriate bearing in mind that I had chosen as my title "Making Sense of the Criminal Justice System". That is exactly what the Auld Report is about.

The Report is an immense achievement. I am delighted that the Lord Chancellor, the Home Secretary and the Attorney General have welcomed the report.

In doing so the Lord Chancellor was not only wearing his hat as head of the judiciary but also his hat as a member of the government he therefore had to show an appropriate degree of circumspection. In particular, he had to bear in mind that the other chancellor would be responsible for providing the essential resources required for a successful implementation. I feel no such inhibitions. In my judgment the question is not can we afford to implement the Auld Report? But can we afford not to implement the Auld Report? To which I would answer "no".

This does not mean that I would agree with all the recommendations in the report. This is not surprising as the report contains 328 recommendations. I do, however, agree with its main thrust and very much hope that The Criminal Bar Association will be of the same mind. I know from my civil justice report just how important the support of the Bar is. I regard myself as having been extremely fortunate in having that support and I very much hope that the Auld report will be supported in the same way. It is a report which is designed to make sense of the criminal justice system and this is surely an objective the CBA has to support. In the introduction to the report Lord Justice Auld acknowledges there exists a "need to enhance public confidence in the criminal justice system as a whole". I agree. I also agree with Lord Justice Auld that the task of reforming the criminal justice system is more difficult than reforming the civil justice system. There is, he rightly points out, in the case of criminal justice more than just the courts and the immediate parties to consider. There are the victims, the members of the public who are prepared to come forward to give evidence, the different criminal justice agencies and the fact that for the accused his liberty is likely to be at stake. As the report states; "The undertaking and outcome of criminal proceedings are usually of much greater consequence to the public than in civil proceedings".

The companion to the Auld Report is the Halliday Report on sentencing. Auld does not deal with sentencing policy. His terms of reference focus on practices and procedures and the rules of evidence applied by the criminal courts and it is on these issues that the report focuses. However, the new Home Secretary in one of his first statements on criminal justice, while recognising the need to put 'sense' back into sentencing, said this about the Halliday report:

In the course of this address, I cannot do more than tackle a few of the principal recommendations of Auld's. However I will try by my selection to give you some indication of the significance of the Auld Report and why I see it as being so important. In addition, in so far as time permits I will not neglect the subject of sentencing because like the Home Secretary I recognise we need to reform our approach to sentencing.

The Essentials of a Justice System

The criminal justice system has to be just.

It has above all to be just to the defendant, this has always been acknowledged. What has only been more recently acknowledged is that it also needs to be just to victims and witnesses and provide justice for the public. I believe our system already largely achieves these very important objectives although this is not generally accepted by the public. There is a worrying gap between the perception and the reality. Around the world our criminal justice system is held in high esteem. It has the great advantage of possessing an extremely able judiciary which is free from corruption and is supported by able and independent advocates. We have the independent Crown Prosecution Service which under its able Director is for the first time to have the resources it needs to achieve the objects for which it was created. We have an excellent Probation Service and we have an admirable Police Service. Perhaps most importantly we have a remarkably high public participation in the system through the jury system and over 30000 lay magistrates. Together they make our system unique. These are the features of our system which I find are most admired by visitors from abroad. We also have a Court Service which while inadequately resourced provides us with staff the great majority of members of which work devotedly to ensure the courts work as well as is possible.

With all these advantages what is wrong with the system? Why does it need reforming? If it ain't broke don't fix it!

I deal only with the criminal courts (though the other parts of the system are not without their faults). In my judgment the faults are that we do not use and co-ordinate and deploy talent and our resources as well as we should. In other words the criminal courts are not as efficient, effective or economic as they need to be in the 21^st century. However the existence of the talent is critical since it means the faults will be so much easier to remedy. I regard it as essential to use the resources available to the criminal justice system in the most efficient and effective manner possible. I do not hide the fact that I want to see this for financial reasons but not only for financial reasons. As to the financial reasons the resources available to the justice system are limited. The justice system is in competition for resources with the other public services including health and education.

If the criminal system is inefficient in the way it uses its resources this has an adverse effect on the other parts of the system including the provision of public funding for other litigation. If witnesses and jurors and in particular victims and their families are kept hanging about when this is not necessary this damages the reputation of the system and the public's confidence in the system. If they are made to come to courts when it is unnecessary because the defendant always intended to plead but this had not been ascertained in time to avoid their having to do so, or if the jury consider their time is wasted because the case is trivial or if there are constant adjournments this is damaging to the confidence of the public in the justice system. We are nothing like so successful as we should be in managing the system and the cases within the system. We need to make the system less complex and more streamlined.

It is in order to assist to achieve this that the reforms proposed by Auld are so important. They provide a comprehensive way forward. As Lord Justice Auld states:

We have to do so since otherwise we will find that if an offence is committed the public will not want to become involved. A massive stride to achieving this would be if we produce as Auld recommends a new code of substantive criminal law, a code of criminal procedure and a code of sentencing. The law of evidence should also be less technical and more flexible. The degree to which we have suffered from piecemeal, often ill thought out over hasty legislation in each of these areas horrifies me. To take an example it looked as though we had recognised the errors of our ways with the Powers of the Criminal Courts (Sentencing) Act 2000 , which was an exercise in consolidation not codification. But it was incomplete as it omitted deportation, drug trafficking and confiscation orders and before the ink was dry it was being supplemented by a stream of further legislation including the 400 amendments contained in the Criminal Justice and Court Service Act 2000 which came into force on five different dates, one of which was appropriately 1st April 2000 and so the process goes on. In addition we have the extraordinary situation as Dr Thomas points out that over a dozen statutes require a judge when sentencing to utter an incantation.

Turning to procedure, it is extraordinary we still do not have a procedural code for crime as we do for civil litigation. Instead we depend on a motley array of practice directions some of which conflict with each other and some of which are obviously out of date.

The Unified Court

I turn to the management of the courts.

Here Auld raises the question whether we should have a two-court system based on independent magistrates and the crown court as at present, or a single unified court system. The report recommends that we should move to one unified court. I suggest that the case for this recommendation is overwhelming. It will avoid having to send cases from one court to another. It would mean that the Magistrates Court and the Crown Court would be managed and financed as a single entity instead of separately. It will mean that the magistrates will have the benefit of the leadership and training which is available at present to the Crown Court. It will produce increased flexibility. It will mean that the requirements of the particular case will be determined by the tribunal who is to hear it. Summary cases, as at present, will normally come before three magistrates, if a case needs special treatment it could come before magistrates sitting with a judge or a judge alone. The Magistrates Court will no longer be inferior to the Crown Court. If this was appropriate a High Court Judge could sit with Magistrates to hear a particular difficult case.

Linked to the recommendations of a unified court is the recommendation of the three Divisions or three-tiered system. The intermediate tier of magistrates sitting with a judge to hear cases triable either way is controversial because of its effect on the right to the defendant to be tried by jury. I am totally committed to the importance of the right to trial by jury unless that form of trial is not manifestly disproportionate. But if it is disproportionate then I believe there is a need for a more sensible way of resolving who hears the case than we have at present depending as it does in part a list of offences.

Rather than argue the virtue of Auld's solution I would encourage anyone who is doubtful about this proposal to read Lord Justice Auld's argument for resolving it. I would give to a judge the decision to allocate all cases having received written representations in any case were there is a dispute. What I would do is in the unified court limit the powers of punishment to say three or possibly six months in the case of magistrates sitting alone and to say nine or possibly 12 months magistrates sitting with a judge. If a case is sufficiently legally complex or sensitive the judge should still be able to allocate the case for jury trial even if the punishment is unlikely to exceed even the magistrates' powers.

Can I very briefly summarise some of my reasons for making the proposals;

1. To achieve proper case management. The way a case is tried should not depend on the inclination of either the prosecution or the defence. However I would want the prosecution to face up to the issue at the outset of deciding what is the maximum punishment which they consider is appropriate. If a sentence beyond magistrates or magistrates and judges' normal power of sentence is contemplated either by the prosecution or the allocating judge then I would not qualify the right to trial by jury except if a defendant decided and the allocation judge agreed in a complex case that he would prefer to be tried by a judge alone or a judge and a special jury.
2. Two magistrates sitting with a judge would constitute a mini-jury and provide a proportionate form of tribunal for a case the seriousness of which would only warrant a short sentence.
3. Halliday makes clear that custodial sentences of under 12 months are not effective in achieving a change of behaviour on the part of an offender and so when a short prison sentence is required it should be very short. If a longer sentence is to be imposed it should be imposed by a professional judge. Although I do not believe that Magistrates are the only tribunal at fault we have to limit our over use of imprisonment and here to focus primarily on those who are the subject of the short sentence.
4. It is not only the defendant who is effected by an election for trial in a case which is not appropriate for such a trial. In particular I do not believe a defendant should be able to inflict on the jury the burden of having to hear cases which do not warrant their attention.
5. I am well aware of the alleged problem of lack of confidence in Magistrates. But the causes for this are being tackled by the method of selection of magistrates and the way they are trained. We have to face up to the fact that either Magistrates are fit or are not fit to be part of the trial and sentencing process. If, as I believe is the case they in fact already provide a high standard of fairness we must dispel the misconception that this is not the position. The misconception I am confident is no longer justified if it ever was.

   (When I refer to the maximum sentencing power I am referring to the power prior to the discount for plea.)

However, whatever view you take on this issue I emphasise the virtues or lack of virtues of the intermediate tier should not interfere with legislation which is required for the unified court.

While dealing with the intermediate tier I should refer to the issue as to the perverse acquittal by a jury. Should there be an appeal? I think this is a difficult issue and to avoid being accused of sitting on the fence I will adopt a half way house. I would not allow an appeal if the decision by the jury could or might have been one of principle but would if the decision was otherwise clearly contrary to the only rational view of the evidence.

Management of the System

If we have a unified court, then it should be managed by the new Criminal Justice Board recommended by Auld.

This is an important recommendation. It is a single body which is designed to overcome the problems created by the fact that there are at least three agencies which at the present time contribute to the management of our courts. Auld recommends that it should be chaired by an independent chairman and its membership should include senior civil servants from the three main criminal justice departments and the Treasury, the chairman of the youth justice board, chief officers of the criminal case management agency, the unified criminal court, police and probation services and a small number of non-executive members. That is hardly a compact body but absent from its not inconsiderable number of members are the judges. This is because Lord Justice Auld considered that it would be inappropriate for members of the judiciary to be involved in a board of this sort. He was however in favour of close consultation between the judiciary and the board

A significant change for the better, which has occurred over the last few years, is the partnership which has been established between the judiciary and both the Lord Chancellor's Department and the Court Service. It is recognised now, on both sides, that the judiciary have a most significant role to play in the efficient running of the courts. In my view it would be unwise to exclude senior judicial representatives from the board unless this is essential. That, I do not believe is necessary. It is possible that from time to time issues could arise before the board on which it would be inappropriate for judicial members to express views. If this happens, it seems to me that the judicial members could merely abstain from expressing views on the subject in question. Subject to this it seems to me vital that the judicial members should be heard as of right by the other members of the board. What I have said about the composition of the Criminal Justice Board also applies to the local boards which are intended to be responsible for giving effect at local level to the national Criminal Justice Board's directions.

Management of Complex Cases

Another significant recommendation is in relation to the case management of the more complex cases.

Here, I welcome what is proposed. The present plea and direction and Nairey hearings are not achieving the management which is required. As in civil proceedings, so in criminal proceedings, I believe case management has a huge contribution to make. However, unless it is to be disproportionately expensive, hands-on case management must be confined to the complex cases. In the straightforward cases what is needed is standard written directions which set out a timetable which, except for very good reason, is to be strictly adhered to for bringing the case to hearing. The parties should agree between themselves any issues of law, procedure or evidence that may affect the length of the trial and when it can start. Only if they cannot reach agreement on matters which justify this should there be a pre-trial hearing. In a case which justifies it, a case management hearing needs to be conducted by properly instructed lawyers on both sides who are fully aware of the nature of the case. Normally the hearing needs to be conducted by the judge who is to be in charge of the trial.

To achieve a situation where this is possible demands a huge change of culture. To bring this about Auld recommends that there should be a statutory criminal procedure rules committee whose responsibility it should be to draft in a single procedural code for the unified criminal court to which I have already referred. I am convinced that such a code is urgently required and could be as important for criminal justice as civil procedural rules have been for civil justice. However, case management, if it is to work, requires the front loading of costs and if case management is to work it must be paid for properly and be supported by the necessary IT. At present, the IT is not in position and the way lawyers are paid inhibits proper case management, the simplification of trials and the reduction in the length of trials. As Auld recommends (153);

The new graduated fees scheme to be introduced on 27 October 2001 is likely to make the position worse but I accept that this a transitional arrangement and for the time being what has been painfully negotiated will need to remain until there is the broad reform which Auld recommends.

The Presumption of Innocence

What has stood in the way of the movement towards constructive case management is the belief that it is inconsistent with the presumption of innocence. The report demolishes this misconception in a way in which I find wholly convincing. The report points out that it is not inconsistent with this presumption for a defendant to identify what his defence is. It does not prevent him requiring the prosecution to prove each item of the case against him on which they rely whether it is reasonable do so or not. However if this is not his case then it is perfectly in order to require him to indicate what is his case so proper case management can take place. The new procedural rules can make it clear that it is the duty of defendant's lawyer to co-operate in this way. If this does not happen unnecessary expense will inevitably be incurred. In addition, it is impossible to efficiently manage the resources of the court and not inconvenience the jury and witnesses without this help. Sanctions against the defendant may not be practical but if the lawyers are given a clear responsibility to co-operate with the court in this way I would expect them to do so and then in the great majority of cases meaningful case management can take place.

Sentencing

Discounts

I turn to sentencing; here there is certainly scope for making better sense.

I start with aspects of sentencing with which the Auld report deals. I am in favour of a graduated scale of sentencing discounts which will reflect the date on which a defendant tenders a plea of guilty so that the earlier the tender the greater the discount. I've also never seen the objection to a judge indicating his sentencing intentions, as long as that is done within a structure which fully protects the defendant. Such a structure Auld spells out. Personally, I would also be prepared to offer a discount in sentences if a defendant co-operates with case management but that is not something which has been considered by Auld. It does not seem to me, right or fair, that a defendant who responsibly defends the case where he could not be expected to plead guilty, but is nonetheless convicted, should be treated less favourably than a defendant who has no alternative but to plead guilty.

I would also like to extend the discount to fines. An immense amount of time is taken up by magistrates in enforcing the payment of fines. There is no doubt that in the case of parking offences, reduction in the fine for early payment has a most salutary affect. Why should this example not be followed in the case of other fines? It might be said that this would favour the more prosperous offenders. However, the undesirability of doing this can be achieved by offering a similar discount to a defendant who has to pay a fine by instalments if he pays instalments promptly.

The Short Sentence

Turning to sentencing issues of greater substance, the feature of Halliday that I find most attractive is that it acknowledges, as I have already indicated, what I believe to be incontrovertible, that a conventional short sentence achieves very little for the defendant or the public.

As the Home Secretary has himself stated "short custody sentences provided little or no opportunity to change the behaviour and problems which put offenders there in the first place. And they can have a long term adverse effect on family cohesion, on employment and on training prospects all of which are important to the rehabilitation of offenders." The clang of the prison doors may have a salutary affect, but after a relatively short period in custody the effect wears off. If there is to be a short sentence it therefore needs to be custody-plus or as the Home Secretary said custody-minus. What is essential is that there have to be the arrangements in place to enable a sentence to challenge offending behaviour, whether it is served in custody or in the community, or is served partly in custody and partly in the community. The education or training must be able to be continued both in custody and in the community. And it is the objective of custody plus and minus to achieve this objective.

As I understand the Halliday proposals, they are substantially inspired by a need to place a greater emphasis on the risk that the offender is likely to pose to the public in the future. For this reason offender's previous record is of considerable importance. The new emphasis on risk creates a danger of our reinventing preventative detention. Preventative detention was abolished because it was unjust and ineffective. As a matter of principle, I have no difficulty with attaching greater importance to previous convictions. This is as long as the state fulfils its role of assisting the offender to rehabilitate himself. If all that happens is that he finishes a custodial sentence without any attempt being made to either tackle his offending behaviour or to return him to the community in circumstances in which he is less likely to re-offend then this is less acceptable.

There are, however, a category of offenders who it has to be accepted will remain a grave risk to the public. In the public interest and for their own safety they must be retained in secure conditions which prevent them offending. Those conditions must be acceptable. They need to be humane conditions where the offenders concerned can be detained so long as they remain a danger. Great progress is already being made in the assessment of risk and if the assessments can be shown to be reliable this could be of the greatest importance in the more constructive use of the court's sentencing powers.

The Youth Justice Board

For a different category of prisoner, the Youth Justice Board has demonstrated what can be achieved, by focusing on ensuring that the necessary education and training and support is made available.

The reconviction rate is then transformed for the better. The unfortunate figures are that without that assistance nearly two-thirds of prisoners lacked the basic skills needed for more than 90 percent of job opportunities. Those figures emphasise just how important the Youth Justice Board is.

Women Prisoners

What the Youth Justice Board is already achieving convinces me of the need for a dedicated board to deal with female offenders.

The present situation is deeply depressing. The figures tell the story; as Gwyn Morgan has pointed out in the new law journal, in 1970 there were 988 women in prison; in 1990 there were 1597; at the end of June 2000 and 2001 there were 3736. Over 60 percent of women in prison are mothers and 45 percent have children living with them at the time of their imprisonment; almost a third of these children are under five and 2/3 are under 10. I quote:

This is a subject which desperately needs attention.

The Sentencing Advisory Panel

The establishment of the Sentencing Advisory Panel was a most imaginative initiative.

It is already making an impact. I find its recommendations most valuable. The problem is that at present it is not possible to implement recommendations by incorporating them in a guideline decision until a suitable appeal can be found. Auld recommends and I agree that should not be necessary.

Conclusion

You will be relieved to know now, that is all that I have time to say to you this evening.

I have divided my time between procedural reform and sentencing reform. The common theme is the need on the one hand to improve the machinery of criminal justice and on the other to improve the way we use that machinery when an offender has been convicted. In both areas we are nothing like as effective as we could be. The result is that precious resources do not achieve the results they should. We now have an opportunity with the Auld and Halliday reports to make more sense of the criminal justice system. This will involve the deployment of additional resources initially but in the longer term it will result in greater efficiency which will produce substantial benefits as well as economies. If we are successful in doing this it can only be of benefit to the public. It will certainly produce results of which Michael Kalisher would have approved.

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