Mr Softy?

Once seen as a popular groundbreaker, how did Lord Woolf turn into a vilified protector of criminals? Jon Robins investigates the media furore surrounding the Lord Chief Justice's controversial views on the sentencing of burglars


A shifty-looking character was spotted last week outside a block of luxury flats in Cheyne Walk, Chelsea, casing the joint. As well as being one of the most exclusive addresses in the country, Cheyne Walk is also the residence of Lord Woolf, currently being pilloried in the press for his sentencing guidelines for burglars. However, this prospective housebreaker, having jumped the iron railings and dodged the security cameras, apparently lost his nerve at the three-story climb to enter the Lord Chief Justice's flat.

As it turned out the would-be burglar – complete with stripey jumper, eye-mask and a bag marked 'Swag' – was no member of the criminal classes. Instead he was a reporter from The Sun about to deliver Lord Woolf, with typical sledgehammer irony, “a taste of his own medicine”. 'How do you like it, m'lud', ran the headline the following day.

There was a time when Lord Woolf pulled off the unique trick of being simultaneously controversial and popular. But in less than four weeks his lordship has metamorphosed from liberal law chief, lauded by lawyers and respected even by his critics, to a judicial hate figure for the tabloid press to kick around. And all because of the furore caused by his controversial, but carefully worded, guidelines urging the courts to give probation and community service sentences so long as they were an effective punishment to domestic burglars.

The Sun has accused the judge of losing his marbles and “ordering fellow judges to stop jailing burglars”; the Daily Mail labelled him a “serious pinko”, reckoning that 10,000 convicted burglars will go free every year; and The Sunday Times concluded that the judge had singlehandedly reversed “the convention that burglary is an abhorrent crime meriting a prison sentence”.

Of course, mistrust and suspicion flows both ways. Lord Woolf last week hit back at the press in an extraordinary 1,700-word “clarification” of his controversial guidelines. The judge attacked “inaccurate comments” for leading the public to misinterpret the guidelines and insisted that his advice did not amount to a “charter for burglars”.

So why has the press turned against our most senior full-time judge? Norman Brennan, a police officer with more than 25 years service, who set up the Victims of Crime Trust seven years ago, is one of the most outspoken critics of government and judicial erosion of victims' rights. “I've never seen a more liberal Lord Chief Justice,” he says. It is not meant as a compliment.

“When the boss of the criminal justice system comes out with another excuse not to send burglars to prison, it does nothing to instil confidence among the public,” Brennan complains. “When he comes out with those comments, most of my colleagues in the police force just put their heads in their hands. It was at a time when we needed reassurance.”

His group reckons that 77 per cent of all offenders placed on community sentences reconvict. If you take into account a margin of error for less-than-perfect detection rates, he believes that figure is closer to 100 per cent.

Lord Woolf has long been a tireless prison reformer, dating back to his groundbreaking report into the Strangeways Prison riots in 1991. He recently said that overcrowding was “the aids virus of the prison system”. He told a conference last June: “If the population of the prisons continues to rise in the way that it has been, there is a real risk of a repetition of the sort of events which took place over 10 years ago and which my report was designed to make beyond possibility of repetition.”

At the time of the Strangeways report, the prison population stood at 44,000, but it has now hit 72,000, and if it goes on at the same rate it will reach 83,000 by 2008. “Do we think this is a worthwhile expenditure, especially if the system is going to remain inefficient because it's overcrowded?” asked Lord Woolf. “I'd prefer to see prisons closed rather than opened.”

It has been a fairly unwavering message that intermittently flares up into predictable and explosive controversies over what to do with the likes of the James Bulger killers or the late Myra Hindley. The point at which much of the right wing press fell out with Lord Woolf was when he paved the way for the early release of Robert Thompson and John Venables in October 2000.

Lord Woolf's first major ruling after being appointed Master of the Rolls in 1996 was to quash Michael Howard's decision to fix a 15-year tariff for the two young men. Lord Woolf argued that youth offenders' institutes offered such a dangerous environment that Venables and Thompson might not survive the experience. “They are unlikely to be able to cope, at least at first, with the corrosive atmosphere with which they could be faced if transferred,” he said.

Brennan also represents the Bulger family and is stunned at the judicial thinking that can free a person, no matter how reprehensible the crime, because of the state of prison accommodation. “These aren't people who have stolen a couple of Mars bars from Woolies,” he says. “They abducted and murdered a three-year-old child, and if that isn't 'corrosive' I don't know what is.”

According to the Daily Mail, this is all evidence of that “peculiarly Woolfian trait”, which is the “obsession at all times with the rights of the offender”. More recently he argued: “Every criminal, no matter how evil, must have their rights upheld.”

But Lord Woolf's attitude towards prison is not so easy to categorise. For example, the judge left civil libertarians aghast last year when he appeared on the BBC Radio 4 Today debate about how the justice system should deal with Roy Whiting, the killer of schoolgirl Sarah Payne. He called for a form of civil detention “without having to prove that a person has committed an actual crime”, and a recognition that there are “a small – very small – minority of people in the community against whom the public are entitled to be protected”. Again, the Woolf fan club was left perplexed when more recently he laid down sentencing guidelines for mobile phone muggers, allowing for at least 18 months imprisonment and for more than five years in cases of exceptional violence.

The recent spate of Woolf-baiting began in earnest when career criminal and part-time poet Mark Patterson was spared jail and given an 18-month drug treatment and rehabilitation in order to pursue his literary aspirations. The sentence was passed by Judge Goldstein at the Old Bailey, in the spirit of the Woolf guidelines. Patterson was a drug addict with 31 previous convictions, including 11 appearances for burglary, who wanted to be a street poet.

Shortly after his release, Patterson entertained The Daily Telegraph in his flat in Deptford, South East London, “surrounded by the debris of a heavy night of marijuana smoking”. He was sufficiently compos mentis to spontaneously compose a poem in honour of the judiciary: “…I have now been set free/ In a blaze of publicity/ So that everyone can see/ My great ability/ Lord Woolf brought forth a new law/ To set people free,” he semi-rhymed.

Similarly inspired, the Daily Mail's Leo McKinstry responded in kind: “In this Happy New Year/ When a man is spared jail because of bad verse/ Could the legal system in Britain really be any worse?/ Thanks to the idiocy of our red-robed fools/ It is crime and lunacy that over us rules.”

The Lord Chancellor, Lord Irvine was on hand to back up his judicial brother in the New Year. “Prison is not good at preventing people from reconvicting,” the Lord Chancellor told the Today programme. “I don't accept that people are disturbed at first-time burglars or even second-time burglars, where there are no aggravated elements in the burglary, not going to prison,” he went on to say.

According to Juliet Lyon, director of the Prison Reform Trust, “the Lord Chancellor struck a chord with informed public opinion when commenting that people are sophisticated enough to understand that community sentences work more effectively than prison terms in rehabilitating offenders”. Lyon is now looking for “strong consistent leadership… across government” to make the necessary jump “from feeding the beast of penal populism” to sensible criminal justice policies.

She should not hold her breath. The Lord Chancellor's interjection won a sympathetic editorial in The Guardian, but only served to stoke further controversy elsewhere. The Sun launched a new campaign: “If the law is an ass, what does that make Lord Irvine?” In a double-page spread entitled 'Drop the dud donkey', the tabloid took a bewigged and robed donkey to Parliament for a photo shoot.

The message from the Government has been at best mixed. Downing Street appears to have taken fright at the gathering momentum of the media backlash, and it was reported that, in the words of The Daily Telegraph, Lord Irvine was later “slapped down”. The Home Secretary David Blunkett has on a couple of occasions joined with Lord Woolf in appealing to judges to send people to jail only when it is absolutely necessary – but not this time. Not least because he was floating the idea of a five-year mandatory sentence for gun possession following the New Years Eve shootings in Birmingham. Blunkett publicly questioned the clarity of the guidelines and, in a patronising aside, said that we should not “blame him, because he [Woolf] is not a politician”.

It was an unrepentant Lord Woolf that came out fighting last week though. His statement did not “modify, alter or retract” any part of his judgment in R v William McInerney and Stephen Keating: “We make this statement to correct the inaccurate reporting that has taken place, because of the danger that, if allowed to stand, the inaccuracies will unjustifiably undermine the confidence of the public in the criminal justice system in a manner totally unwarranted by the judgment.” No room for ambiguity there then.

Lord Woolf: 'These guidelines are not a charter for burglars'

The Lord Chief Justice Lord Woolf recently issued a statement to clarify the judgment given in the appeal of R v William McInerney and Stephen Keating, handed down in December, which set out guidelines as to the sentencing of domestic burglars. It did not “modify, alter or retract any part of that judgment”, and continued: “The sole purpose of this statement is to correct inaccurate comments which are repeatedly being made as to the guidelines. Correction is vital, since, if the inaccuracies stand uncorrected, the public will be left with a totally wrong impression as to the guidelines. This could seriously harm the public, by reducing, without justification, their confidence in the criminal justice system. The media is urged to avoid this by giving full coverage to this statement.”
He went on to say: “It is wrongly suggested that the court is more concerned with the offenders than their victims.” In fact, he pointed out that the judgment reaffirmed the comments of Lord Bingham in the case of R v Brewster “that the consequences to the victim should always be of the greatest significance in determining the appropriate punishment”.
Lord Woolf also took issue with the suggestion that that the court recommended that all first or second time burglars, who might otherwise be sentenced to up to 18 months imprisonment, should be given a community sentence. “In fact, the court made the recommendation of a community sentence as a starting point,” he added.
These guidelines are not a charter for burglars, he said. “We hope we have said enough to make clear that the judgment is not a charter to offenders to commit burglary as has also been suggested. Nor is it a body blow to the efforts of the police to detect offenders who commit burglary.
“We make this statement to correct the inaccurate reporting that has taken place, because of the danger that, if allowed to stand, the inaccuracies will unjustifiably undermine the confidence of the public in the criminal justice system in a manner totally unwarranted by the judgment.”