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You are here: BAILII >> Databases >> United Kingdom Judiciary Speeches >> Lord Woolf, Lord Chief Justice of England & Wales : "Keynote Address to the Modernising Criminal Justice Conference" [2002] UKSpeech ZX3EJ (20 June 2002)
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Lord Woolf
Lord Chief Justice of England and Wales

"Tools for the Job"
Keynote Address to the Modernising Criminal Justice Conference

Royal Lancaster Gate Hotel, London

20 June 2002

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I note that this is meant to be a keynote address. When I have been asked in the past to make a keynote address, so as to reduce the expectations of my audience, I have pointed out (in case there is anyone in the audience unaware of this) that the "keynote" is the lowest note in the key. I am hesitant to point this out today because I'm aware that, on Tuesday, the Prime Minister and, on Wednesday, the Home Secretary were both billed as giving keynote addresses. There is, however, more than one key and, while they no doubt gave the address in a major key, this is an address in a minor key.

I am extremely grateful to the Commissioner, the President of John Jay College and the Executive Assistant Director of the FBI for giving me the opportunity to address this conference. There may have been occasions in the past, though I'm not sure, when a Chief Justice has been invited to speak at a conference by a Commissioner of Police, but I am confident this is the first time a Chief Justice of England and Wales has been invited to speak by a director of the FBI.

However, I would be less than frank if I did not admit that I had some hesitation about accepting the invitation. I was concerned as to whether recent and forthcoming developments in the criminal justice system (CJS) (which make the timing of this conference so appropriate) mean the subject is also highly politically sensitive. Would it be inappropriate for me to comment publicly on the subject?

Alas for you, my audience today, I rapidly came to the conclusion my concerns were unjustified. Following the precedent of Marlon Brando in the Godfather, the conference organisers had made me an offer I could not refuse. To do so would have flown in the face of my long held conviction that the key to the successful modernisation of the criminal justice system is greater understanding and co-operation between its different players. What better forum could there be for me to do my bit to advance this objective?

Without I hope embarrassing him, I would like to begin by strongly endorsing one of the points made by the Commissioner in his speech on Tuesday. There is, as he made clear, a need for a holistic examination of the problems which the CJS is facing and, even more important, the implementation of a holistic solution. A solution informed, not only by our experience in this country, but also by the experience of other jurisdictions (distinguished representatives of which have been wisely persuaded to take part in this conference).

When I referred to the sensitivity of the timing, among the matters I had in mind were the reports of Sir Robin Auld and John Halliday to which the Prime Minister referred on Tuesday. It is my belief, that the right decisions of the Government in response to these reports could result in the creation of the modern and effective criminal justice system which the government, politicians of all parties, the judiciary, the legal profession and - above all - the public would like to see. In referring to the Auld Report, I of course appreciate that it contains some controversial proposals but I urge we do not allow them to dominate the debate. They are peripheral to the changes which are needed and would become more so if the non-controversial reforms were implemented.

I doubt there is anyone in this audience who has any reservations as to the need for change. If there is, immediately this conference finishes they should acquire a copy of the Audit Commission's report, the second and third paragraph of which read:

This is a situation which has to be tackled and - using the language of today's session - the government must ensure that the CJS has the "Tools For The Job". Some of the much-needed changes require little, if any, additional resources. But the "Job" as a whole requires very considerable resources and if substantial long-term change is to be achieved those resources have to be provided. Selecting particular aspects of the CJS for concerted action will inevitably have an adverse effect on other parts of the CJS and will not achieve by itself what is necessary. In saying this, I should make clear that I and the judiciary are wholly supportive of the Street Crime Initiative. It illustrates what can be achieved by collective effort. However, initiatives of this sort must not divert us from doing what is necessary to bring about major change to the system as a whole. I agree with Lord Warner that we must avoid the quick fix. We certainly must give whole hearted support to the Youth Justice Board and the Youth Offending Teams which have demonstrated just what can be done by concerted action.

While accepting the need for change - and not adopting the attitude of the well known but, I'm sure, mythical judge who is alleged to have said "reform, reform do not talk to me about reform, things are bad enough already" - it should not be forgotten that we start off in this jurisdiction with a very considerable advantage. Those engaged in our CJS - the police, court, prison and probation service staff, the legal profession and the judiciary - are of the highest calibre. They are devoted to and prepared to work extraordinarily hard in the cause of justice. We take for granted the fact that we have a CJS free of corruption. For the majority of the heads of the judiciary from other jurisdictions from whom I receive visits, this seems an unobtainable dream.

Our problems are attributable to the fact that the system has not kept pace with changes in society. It has been developed over centuries and is all the better for that, but the problems which the CJS face today bear no relation to the problems which it faced when I entered the law.

Being a judge in those days was very different from being a judge today. There was a time when little more was required of the great majority of the judiciary than being a referee during a trial and a reporter as to what had happened during the trial when summing up to the jury. This is not the role, as I see it, of a judge conducting a trial today. The judge should be the manager of the trial. He, and increasingly frequently she, should ensure that, not only is justice done and seen to be done, but that the interests of justice are served by the efficiency and effectiveness of the trial process. High on the judiciary's agenda should be the avoidance of inconvenience to the jury, the victim and witnesses. It is judges' responsibility to avoid unnecessary delay. It is their task to ensure, so far as this is practical, that they receive the required co-operation and support from lawyers on both sides. It is the duty of the judge to ensure that a proper and a just balance is maintained between the interests of the prosecution and the defence.

There is one aspect of the Audit Commission's report which I would question. Having referred to the two specific aims of the CJS, namely;

• to reduce crime and the fear of crime and their social and economic costs; and
• to dispense justice fairly and efficiently, promoting confidence in the rule of law

The Audit Commission describes the role of the judiciary as being "to ensure that justice is done to both the defendant and society, and that due process is achieved in Crown and magistrates' courts." I consider this to be an understatement of the judiciary's role. The wider aims of the CJS are, today, equally applicable to the judiciary and the judiciary is fully committed to achieving those aims. That is why a senior judge is Chairman of the Criminal Justice Consultative Council and a member of the CJS Strategic Board.

That is why, while Parliament is responsible for the framework within which sentencing of prisoners takes place, it is the judiciary's responsibility to provide guidelines as to sentencing. One of Lord Justice Auld's recommendations was that there should be a single and comprehensive code dealing with sentencing. The judiciary already provide guidelines, but a comprehensive code of this sort would undoubtedly be of value and could improve the public's confidence in the criminal justice system. A single code, subject to regular review, would be a significant step forward.

Undoubtedly, sentencing creates one of the most difficult challenges facing judges today. The Halliday Report has made significant recommendations are. One of its important messages is that, for those offenders who are sentenced to less than 12 months imprisonment, prison can make little or no contribution to the depressing statistics about reoffending that I cited at the beginning of my address.

The significance of this, is underlined by the state of our prison system today. In his talk, the Director General of the Prison Service will have made his problems clear. He is valiantly seeking to hold together a seriously overcrowded prison system. Just over ten years ago, I had the responsibility of reporting on the serious disturbances which took place in the prison system at that time. I hoped that it would be the last occasion that there would be disturbances on that scale, but we would be foolish if we did not recognise the danger of repetition now that some of the causes of those disturbances have reappeared.

Conditions in some prisons are no longer tolerable. They are certainly inconsistent with the achievement of an efficient and effective criminal justice system. Any meaningful reform of the system has to tackle this problem. It is a problem of numbers and resources. Given the resources and a number of inmates which it has the capacity to accommodate properly, I have no doubt that the prison service could play its part in addressing reoffending. The prison service has the ability to provide excellent education and other training designed to confront reoffending. In particular, the service has the potential to play an important role in addressing drug-related offending; but it has immense difficulty in making an appropriate contribution in its present overcrowded state.

Over the last two years I have had personal experience of what the prison service is capable of achieving. One of my tasks is to reconsider the minimum period which should elapse before youngsters committed of murder are considered for release by the parole board. Again and again it is apparent that, with the care, training and education they receive while in custody, their behaviour is transformed. It is unfortunately impossible for the prison service to give the same attention to those who have received short sentences - largely because of the overcrowding.

When I made my report the prison population was 44,000 and falling, now it is about 70,000 and expected to rise above 83,000 by 2008. If our CJS is to work as it should, I cannot believe we can contemplate with equanimity a prison population of that size. It is my firm belief that we should send to prison fewer offenders then we do currently.

What we must do is confine imprisonment to those who really cannot be dealt with appropriately by the use of community sentences. However, if this is to happen, we have to ensure that the public can have confidence in the community sentences that are used. We have to raise public awareness of the fact that, not only are non-custodial sentences a cheaper alternative to prison, they can - in appropriate cases - be more effective. There are more and more community options being piloted (many involving elements of restorative justice) which give every sign of working. However there must exist the conditions in which these alternatives can work.

My statement that we should send fewer offenders to prison, does not mean that serious offenders (particularly violent, criminal and repeat offenders) should not be imprisoned. They should be imprisoned and, in some cases, the sentences need to be severe.

An issue which I consider should be addressed is whether the Crown Prosecution Service should play an enhanced role in relation to sentencing. I would not like to see the practice - as in some parts of the USA - of the prosecution demanding a particular sentence. However, when we have a developed sentencing code the prosecution could appropriately draw the judge's attention to the relevant provisions of that code. In addition, it is my view that prosecutors should be more proactive in ensuring that all relevant matters in relation to sentence are before the judge.

The problems created by prison overcrowding are not confined to the effect on the ability to break the reoffending cycle. Overcrowding impacts seriously on the efficiency of the CJS as a whole. Considerable and appropriate publicity was given recently by the media to remarks about the chaos and expense which can be caused by delay in delivering prisoners to court (this is confirmed by the report of the Audit Commission). Late delivery of prisoners is partly a consequence of their being housed wherever they can be found a prison place, even though this will mean they have to be transported long distances every time they appear in court. Similarly, the fact that prisoners can only be accommodated long distances from the place to which they will return on release, can lead to a break-down in the necessary co-operation between the probation service and the prison service. Without continuity of support from the prison into the community, what was achieved in prison by way of tackling offending is likely to come to nought.

In the past, the judiciary imposed the sentence which they considered appropriate and left it to the executive to provide the accommodation required. Today it would be irresponsible for the judiciary to disregard the state of our prisons. Thus, in the present circumstances, it is especially important that judges recognise they have no option but to confine the use of prison sentences to those offenders for whom there is no alternative and that, when they pass prison sentences, they ensure they are no longer than necessary. It is therefore critical that the forthcoming White Paper on the CJS pays appropriate attention to the need to tackle the present situation in our prisons.

Another area where improvement is needed (and one mentioned by the Prime Minister) is in relation to IT. Technology that properly supported the speedy and effective sharing of information across agencies would make a dramatic difference to the way we all work. We cannot afford not to invest in the required technology. It would be financial nonsense not to do so because it is the key (I hope the Treasury are listening) to avoiding the wasted £80 million and the frustration caused to victims and witnesses to which the Audit Commission referred. It is only through technology, that the different agencies within the CJS will be able to co-operate in the manner which is necessary. IT will not, in itself achieve the degree of change needed, but without it the necessary reforms cannot be successfully implemented. Given the necessary IT, the unified court proposed by Auld could become the hub of a modern criminal justice system.

I only intend to refer to two other much-needed reforms, both of which were the subject of recommendations by Lord Justice Auld. Unlike many of the changes they do not require significant resources. Nonetheless they are, in my view, critical (and I was pleased to note they were touched upon by the Prime Minister). They are that there should be two new committees - one on criminal justice procedure and the other on evidence - both to be responsible for producing comprehensive codes.

I cannot overemphasise the importance of a proper procedural code. The procedural code would be the rule book setting out what is to happen at the different stages of the prosecution and trial process. It would create the proper balance which the Commissioner does not believe exists at the present time. The procedural code would empower the judge to ensure the trial process was as expeditious and as inexpensive as possible. It would set out the steps which need to be taken in order for the prosecution and the defence to make proper disclosure. It would make clear the steps which are required to be taken to protect the interests of victims and witnesses.

The committee on evidence would produce new rules replacing the present law of evidence which can only be discovered by examining numerous decisions of the court, many of which conflict and were dealing with a wholly different situation from that which exists now. Juries do not need to be protected in the same way that they were in the past. They have been educated by their televisions and we must not underestimate their ability to ensure that they are not prejudiced by inappropriate evidence.

With most reforms the problem is in the detail. The task of the committees will be to examine this detail and produce a procedural code which spells out what should happen step by step during the criminal process. The evidence committee will set out in understandable language the principles which should govern decisions by judges as to what evidence is admissible and what evidence is not admissible depending, not on past practice, but on the world in which we live today. Both codes would have to leave ample scope for what is the correct answer on the facts of a particular case to be determined by the judge. The judiciary should then be given the responsibility of ensuring the codes are applied in the manner which furthers the interests of justice. In the case of procedure, it should be made clear that both the prosecution and the defence have a professional responsibility to support the judge in ensuring that the requirements of the code are met.

There are complaints made about lack of co-operation from criminal practitioners. But, as the Commissioner accepts, there is fault on both sides. If the prosecution does not put its house in order neither will the defence. If, on the other hand, clear timetables are laid down, it is my experience that both sides will keep to them.

The Committees must be broadly-based and have a membership which is respected by those responsible for the prosecution and the defence. Both sides have to have a sense of ownership and this will only be achieved if those with practical experience are involved.

I am conscious that there will be a temptation to impose solutions on the system. I urge that the temptation is resisted. Government departments have to accept that the detail must be left to those who have practical experience of the coal face. Whitehall should provide the support for the Committees, but the Committees must be left with the responsibility of producing the codes. In the past we have had too much legislation not too little. We must move away from a system where rules are produced by talented civil servants and ratified by members of committees who do not even meet. The judiciary are ready and willing to provide the proactive leadership but they require support to take this task, which is a key reform, forward.

So we have already a police service committed by its leadership to reform. We have a Crown Prosecution Service which is, at last, more satisfactorily resourced and already extending its role to working more effectively with the police. We have a probation service which has already been reorganised. We have a prison service which, if it was not overwhelmed by prisoners, would, I believe, be capable not only of keeping prisoners secure but also of returning them to the community less rather than more likely to reoffend. We have a judiciary which, I can assure you, is totally committed to the improvement of the system. And we have a Government which, during this conference, has committed itself to improving the system. Surely with these advantages, while it will not be easy, we can work to create a CJS in which the public can have confidence and in which we, the players, can take pride. I believe the time could not be more opportune. We should be given the tools to enable us to achieve this.

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