TUESDAY 17 MARCH 1998

THE RT. HON. LORD BINGHAM OF CORNHILL

  100. Can we briefly deal with statutory sentencing guidelines at this point? As you are aware, the Crime and Disorder Bill contains provisions for putting particular categories of case on a statutory basis. Have I got that right?

  (Lord Bingham of Cornhill) Not quite.

  101. I am sorry, for putting the system on a statutory basis.

  (Lord Bingham of Cornhill) Yes.

  102. Correct me, please, if I have got that wrong.

  (Lord Bingham of Cornhill) It provides two mechanisms, both of which I have supported. One, it enables the Court of Appeal Criminal Division, if it feels that guidelines in a specific area should be promulgated or overhauled, to refer that category of case to the panel and seek its advice on what the level of sentence for that class of crime should be. The Bill also provides for the Home Secretary to be able to make a reference to the panel in relation either to a crime for which there are no guidelines at present or a crime for which guidelines are in existence but which the Home Secretary thinks need looking at. Then the panel will go into the question, produce recommendations, send them to the Court of Appeal and it will then be for the Court of Appeal to consider whether and to what extent it wants to give effect to them. There are the two mechanisms but it ultimately remains for the court as to what line it takes.

  103. Do you approve of the changes proposed?

  (Lord Bingham of Cornhill) Yes, I have supported it.

  104. It is not another device through which the Executive can acquire influence over sentencing, is it?

  (Lord Bingham of Cornhill) It is totally desirable that the court should be well informed and have the access to the best possible research to assist them in this very, very difficult field. There are some areas in which it will be extremely difficult to give guidelines and I have pointed this out: manslaughter is the obvious example because you can get manslaughters which are within an inch of murder and really are murder and manslaughters which are jolly close to being bad luck.

  105. That problem would of course be resolved once the judges had discretion to set a determinant sentence for killing, would it not?

  (Lord Bingham of Cornhill) They do have total discretion in manslaughter cases now but there is a great range of sentence in manslaughter and it would be quite hard to give guidelines which were not so broad as to be meaningless. It may well be that the panel would decide that the prevailing level of sentence for, let us say, drug offences was either too low or too high and the same with any other class of offence. Of course the courts do periodically look at these. We looked at the level of sentencing for firearms offences a few months ago and decided that they were significantly too low.

  Chairman: Forgive us, we are going to flit from one subject to another in this last 40 minutes or so.

  106. Are you satisfied with the present arrangements regarding legal aid as they apply now?

  (Lord Bingham of Cornhill) No. My view, which is probably shared by many, is that legal aid, since its first introduction in 1949 has been a valuable social measure. It has enabled large numbers of people to assert and protect their rights who could not otherwise have done so. However, it has been the subject of wide-scale abuse and it has become very, very expensive. You would not find a judge who did not hold the view that a number of cases were litigated at the expense of the public legal aid fund which no private citizen would have spent his own money on and that is an abuse. I welcome reform but I am anxious that the most vulnerable members of society are going to fall through the net.

  107. In that regard, does it concern you that apparently wealthy people facing criminal charges can be fully funded by the state whilst middle England struggles to find the money for the expensive lawyers out of their own pockets?

  (Lord Bingham of Cornhill) It is a very, very difficult problem for this reason. There is one much publicised example of a man who was accused of taking US$50 million from a middle eastern fund and he obtained legal aid. Everybody said, understandably, why should the British taxpayer subsidise this man who has taken US$50 million from the fund. The difficulty about it was that he said he had not taken US$50 million or anything from the fund and he did not have a penny. Nobody could actually put their finger on any bank account in which he did have any money. It is not altogether easy to assume against somebody that which a law suit is there to decide. Of course it does give great offence if somebody like this particular individual has access to the hard earned taxes of the British taxpayer if he has had US$50 million out of the fund or any substantial fraction of that sum.

  108. Do judges make any comment about the case before them and the award of a legal aid certificate?

  (Lord Bingham of Cornhill) Yes, we do make comment periodically but the right to payment out of the fund if you have a legal aid certificate is dependent on legal aid taxation and although the judges routinely are asked to make and do make orders for legal aid taxation it does not actually make any difference if they do not make such an order because the party is entitled to legal aid taxation anyway. There are certain fields in which some routinely weak applications and appeals on applications are made by legally aided parties. We would all agree with that.

  109. What do you think of the proposals that personal injury cases should no longer be funded out of legal aid but rather be funded out of contingency fees?

  (Lord Bingham of Cornhill) I have always supported contingency fees. I expressed that view to the former Lord Chancellor and I remain of that view. I do not totally understand how it works completely. For example, I do not see how it applies to a defendant. It may be that there are not many defendants on legal aid in personal injury cases but there will be in other classes of case and one has to think of children with actions being brought on their behalf, mental patients and all that sort of thing. Provided that we can be reasonably confident that the vulnerable and unaffluent do not suffer, I am very much in favour of the Lord Chancellor's proposals.

  110. Do you see any need for a package of reforms to legal aid in the criminal sector as wide ranging as those currently being discussed in the civil sector?

  (Lord Bingham of Cornhill) It is very much harder because of the constraints imposed on us by the European Convention on Human Rights. We would get into great trouble in Strasbourg if the people whose liberty was at stake did not get access to criminal legal aid. In this field, as in all others, every proper attempt ought to be made to reduce the cost and reduce the length of trials and make them all as efficient and effective as they possibly can be. It is easier to say than to achieve.

  111. I saw a criminal case the other day which resulted in seven villains being sent down which involved 18 barristers. It struck me there that since no doubt everybody was funded out of public funds there was scope for some improvement.

  (Lord Bingham of Cornhill) I made representations to the chairman of the Professional Conduct Committee of the Bar recently on this very subject. He said it was already a breach of professional conduct to appear in a case representing a client, particularly at public expense, if it was unnecessary for that client to be separately represented. He did agree and the Bar has introduced a new and even more explicit rule making it professional misconduct to appear separately representing somebody who could perfectly well be represented by somebody else.

  112. Forgive me, I am slightly out of my depth here, but you can put me right when I go wrong. Once a criminal has been convicted who is believed to have assets, and has been legally aided, can a judge make any order for his costs, that he should contribute to his costs?

  (Lord Bingham of Cornhill) Yes, he can.

  113. Does that happen very often?

  (Lord Bingham of Cornhill) No, I do not think it does happen very often.

  114. Could it happen more?

  (Lord Bingham of Cornhill) It does happen probably in the classes of crime where the defendants have money, cases of fraud and of course far-reaching provisions in relation to drug traffickers. The ordinary defendant convicted of violence usually does not have any money.

  115. When the judges assemble, I think they have some sort of ceremony once a year when they come together, leaving aside the wigs and the rest of it, do you think people would notice much difference between the present day and 40 years ago in composition, white, male, mainly from a particular type of background? Would you say there was any difference 40 years ago and today?

  (Lord Bingham of Cornhill) There would obviously be more women.

  116. What are we talking about?

  (Lord Bingham of Cornhill) None 40 years ago.

  117. And now, percentagewise?

  (Lord Bingham of Cornhill) It depends which echelon of the judiciary.

  118. The High Court judges.

  (Lord Bingham of Cornhill) High Court and upwards, we would be up to about eight.

  119. Percentagewise.

  (Lord Bingham of Cornhill) It is of course a small percentage.