Introduction by Professor Clive Walker

May I first of all welcome you to this, the second Anne Spencer Memorial Public Lecture. Anne Spencer was a graduate of the Faculty of Law at this University in 1974. At the time of her death from sudden illness in 1990, she was Reader in Education Management at the Further Education Staff College and an academic editor and author in the field of gender issues with reference to professions. It was with this impressive background in mind that her parents (who sadly could not attend on this occasion) established a fund in her memory, providing a scholarship for a research student and funding for this public lecture, both reflecting Anne's own focus on women's rights and interests. Hence, the particular title of the lecture today: 'The Treatment of Rape and Child Victims as Witnesses of Crime'.

The treatment of victims of crime is now at the very forefront of debate as to what the criminal justice system is for and what it actually achieves. This has been marked in official language and thinking, including:

• the publication of the first Victim's Charter by the Home Office in 1990, and
• better facilities in courts and witness support schemes following the Royal Commission on Criminal Justice in 1993.

But this interest is distressingly recent, and a number of independent groups and individuals have long argued that victims have been ignored or, even worse, injured by the system which purports to protect them. Most prominent amongst these groups has been Victim Support, which grew as a series of locally based organisations but also formed a National Association in 1979. Since that time it has provided practical support for victims and also has acted as a national lobby group for victims.

What has this work involved and what has it achieved for victims? Is it really possible to reinstate or restore the victim in a way which the system does not do at possible? These questions seem especially vital when dealing with the focus of the talk today, rape and child abuse victims, who have suffered some of the most traumatic crimes possible.

To attempt some enlightenment, I am delighted to introduce Helen Reeves, OBE. Helen has been the Director of the National Association of Victim Support Schemes since 1980, and in that capacity has been at the forefront of shaping policy and influencing government. In that time, the rhetoric in favour of victims' interests has increased enormously. Helen is perhaps uniquely well qualified to tell us whether there is substance behind the rhetoric and what more needs to be done.

Helen Reeves

I am very pleased to be here and before I launch in to the materials I have prepared, I just want to say a word about the title. We had a little bit of discussion about what the title might be and I mentioned that there is new research in several areas including rape and child victims and that I will be drawing upon that when I speak to you today. So really everything I have got to say today is about vulnerability and is about vulnerability in the face of the criminal justice process. Not just people who are vulnerable to become victims of crime as I think we have had quite a lot of research that say that victims are special types of people which may or may not be true. That is not what I shall be talking about today. I will be talking about people who are particularly vulnerable because of the process of criminal justice in this country and some of the assumptions that we make and some of the stereo-types we draw about the crimes that we should be dealing with and how we deal with them. Children, of course, are particularly vulnerable because of who they are: they are young, they are inexperienced. If we don't understand the systems, the strange justice process, it is very unlikely that they will. Wigs and gowns and strange language are all very peculiar indeed. So they are very vulnerable because of who they are.

However, I would just like to make a point at the beginning that there are several other groups who would be equally vulnerable - people with learning difficulties, for example, people with other sorts of disadvantage who might find it difficult to understand the process. There is an increasing body of research which shows that those very vulnerable people are actually failing in the criminal justice process. We are really not providing them with a very good service at all. And the issue about rape - why so many of us talk about it and study it and spend a lot of time with people who have reported these crimes to the police, tell us about their experience - is because it is amongst only one or two other crimes which would make anybody vulnerable. Talking about something sexual that has happened to you - it is not the sort of thing that any of us would treat lightly or talk about generally. Even to our closest friends in many cases, or to our mothers or fathers or whatever, whether male, female, young or old. Reporting sexual crime immediately puts us in a very vulnerable position - it is not something that any of us would particularly want to do and it brings about problems of its own. So I am going to be drawing upon the body of information which is available, mainly about children and women as victims. I will be referring quite a lot to sexual crime, but I would like you to bear in mind that the actual problem is much wider than that. Anybody can be vulnerable in a wide range of circumstances, particularly when they are victims and particularly when they are asked to take part in this rather strange process of criminal justice.

My thesis, if I have one, is that justice is failing to provide a service and the community is failing to provide protection. The more vulnerable you are, the more they are failing, and that I think is a very serious problem that we should all be addressing in the coming years. Now, I am going to start first of all by referring to some research which was first published in l992. This is not Victim Support research, it was carried out by Richard Kinsey at the University of Edinburgh. Some of you may well have heard of this research. It looks at a wide range of school children - there are over 4,000 children in his study - and he talked to children in four different areas and got them to talk to each other and went into the school to collect his information. He came up with some pretty startling results. His population were aged between 14 and 15 years old, boys and girls, from all types of social and economic backgrounds. What he found was that about a third of his sample reported that they had been victims of some sort of crime against the person during the last nine months. Girls were more likely to be victims of sexual crime, which might be anything from flashing, as it is commonly known, right the way through to the much more serious crimes of indecent assault and rape. For boys, it was more likely to be some sort of violence involved in their offences. This was a very large population of children and even those who did not report having been immediate victims during that very short period of nine months, most of his sample said they knew someone who had.

So I use this as my starting point because I think it is very important to recognise for the young people in our community who know a lot about crime whether we like to think so or not. They actually have a lot of experience. It is part of their experience of growing up, part of the way they see the world. If we don't deal with it or don't respond appropriately we are storing up a lot of problems for them as individuals and also for us as a society as a whole. I think that was an important piece of research - I am not going to make any comment about the scientific value - I have no doubt there are people here today who could do that better than I can, but I think it gives us a demonstration of how broad this problem is.

Now one of the problems that Richard Kinsey studied is that children normally do not report the crimes against them for a variety of reasons. What they tend to say is 'I thought no-one would believe me', or 'I thought no-one would take it seriously', or even the equally commonly, 'I thought that I would be blamed'. I could give you numerous examples of young people who have gone home to tell their parents that something has happened to them and the first reaction is 'well, what were you doing in that street in the first place? I have always told you to take a different route home, I have always told you that you should take the bus or come with your friends. Why were you carrying our radio out with you? I told you it was better left at home', and things of this sort. This is what we generally call victim blaming, but it does generally tend to happen an awful lot to children. It happens to all of us actually, but children in particular. You frequently hear this response and because they feel guilty and they think it is partly their fault, they prefer not to tell an adult what has happened. So that quite often we just ignore the problems that are going on under our very noses. The effects for children, and I can tell you this from Victim Support experience, are exactly the same as for adults except that they might experience them more deeply because the experiences are new. Anybody experiencing crime is likely to feel great fear - they recognise that they are more vulnerable than they thought they were before - and great anger because of the injustice of somebody doing something against them, either taking their property or hitting them. There is a danger of retaliation and a danger of alienation. In relation to adults this expresses itself in them not being able to tell the authorities, in our cases perhaps getting fed up with the police because they don't seem to take it seriously or getting fed up with the courts. In the case of children it is more likely to be their teachers and their parents.

In Victim Support we were getting more and more concerned about the number of occasions that we would visit a home after a burglary - after a physical offence - and people would tell us that they were deeply concerned about their children. Their children were refusing to go to school, becoming possessive, not going out with their friends - all of the usual problems that you associate with an emotional upset and this appears to be springing directly from the effects of crime. So, back in 1991 in conjunction with the Home Office, we asked for some research to be carried out on the effects of all crime on children. Most of the literature at that time was about child abuse and child abuse usually occurs within the family centre but that is only a partial definition. I think it tended to blur our vision from the fact that children were getting abused outside their homes in cases that we would describe as rape or serious violence, and it wasn't being treated in the same way and children were also victims of every other type of crime, either within the family or directly against themselves. So the Home Office paid for some research which was carried out at the University of Oxford and published in l992 by Dr. Jane Morgan. I don't think this research has had nearly enough attention because I think it is extremely important. The researchers collected 800 cases of children who had been victims of crime or very closely associated with crime, for example they have been present when one of their parents was assaulted or something very serious had occurred. But it was extremely difficult to collect the sample. I want to include this in what I have to say because I think it is important in recognising why crime against children is so often invisible, why we know so little about it.

First of all, if you study police records, you will find that very little is said about the victim. You won't get their age, you won't get their family circumstances, you won't get very much about them at all. You are far more likely to get data recorded about the offender because that is where most of our focus has been in the years up to about ten years ago. We tend to know a lot about the race and the age and sex of the offender, not about the victim. In fact you very rarely know the sex of the victim unless it happens to be a sexual offence. So the problems that we have at Victim Support, you can imagine, is not knowing who we are going out to visit or who we are writing to and hence, how to judge our response. So it is very difficult to find children in police records. If children are present in a household, for example in a burglary or a robbery, they are very rarely recorded as such. It is the adults who are recorded as the victims, in other words, their parents. We can't usually get them that way - we don't know who they are. And even the British Crime Survey, the biggest survey in the country, only interviews people of 16 and upwards. They deal with crimes related to people of 16 and upwards, so very little information coming out of that. It is very, very difficult to put the data together.

When we go into the schools, what happens in schools - when crimes are committed and reported to teachers - is that quite often, as far as the young victims are concerned, they are pushed under the carpet. All sorts of very strange things seem to occur in schools. For example, it may well be that the young offender is dealt with by the teacher. Maybe his or her parents are asked to report to the school, but the victim doesn't know what is going on because of confidentiality. But unless the police are called in for an investigation, it would seem to the young victim that nothing has been done at all. And we found this in our research that quite often, although teachers knew about things going on, there wasn't a great deal of response at that time. Quite often cases were not regarded as crimes. I mean the word 'bullying' - I think everybody realises now because there has been a certain amount of publicity about this, but bullying, during the survey we discovered that bullying could be anything from very serious sexual offences to constant cat-calling, harassment and very serious violence and robbery. All sorts of things that if the victims were adults, they would be taken much more seriously than they are against children.

Another problem of course with teachers is that they have some responsibility, not only for the young victim but also for the young offender. There are often times when they feel that they don't want to escalate something that happened in the playground or the school bus into something that does involve police and the courts because they don't want to see a young person who may change his behaviour after one good warning, getting into that very serious system that could affect the whole of his life.

So there are a number of things which seem to be going on to make crimes invisible, even within the schools. So what we actually did eventually, was work with the researchers to use Victim Support to find the cases. With Victim Support volunteers going into so many homes month after month and year after year, we were able to identify where cases did involve children and we assisted in collecting together many of these cases.

The next problem which occurs is an ethical problem. This is something else which makes it very difficult for us to know and understand what is really going on. First of all, what do you do when you want to interview somebody aged 8 or aged 12? And if you have been involved in social work or research, you will have faced this problem. What do you do? You have to ask the consent of parents. This is just considered to be good practice, and yet, there is much questioning about it. That is why research that has gone into schools and talked to people in groups has tended to get much richer information. But generally, if you are trying to be one-to-one and get detailed information, you have to go through parents. So of our 800 cases, just to give you a very quick summary, about 6 out of 10 parents didn't respond to the letter at all; 15% of the total survey responded to say 'no, you can't interview our child' and actually left us with only 27% of the total survey population that we could actually contact. The parents were offered the opportunity to be seen with the child or the child on their own or the parents to be seen on their own. Once again quite a lot of the parents opted to be seen on their own, they didn't think the child should be involved at all. Many of the others wanted to be seen with the child because they didn't want to expose their child to the researchers . The Researchers ended up with only very small number, I think it was 18 children, who were actually allowed to be seen on their own and interviewed on their own for this research.

The reasons are quite interesting - there are two main categories of reason. The first is that parents said 'well actually, our child wasn't affected by it, just something he took it in his stride, you know, he wasn't really badly affected'. Now, this is fine and much of that may be true but what was very interesting was that that group included four cases of relatively serious sexual assault against boys. I think it is very interesting. Those of you who have been involved in crime generally and with child crime in particular, will find it rather surprising that a young boy would not be affected in some way by relatively serious sexual assault by an adult. We can only speculate about what was going on with the parents but I think it is reasonable to suppose that many parents would prefer to believe that the child was affected, but often there is a tendency to believe that the more you talk about it the more you think you are going to reinforce it and therefore people don't tend to engage with a child to talk about what has happened. The child seems to be carrying on going about his or her business. The parents are only too relieved to say well actually, least said soonest mended. So I think there was a certain element of that going on.

The second group of responses was really what I have just said, that they didn't want to reinforce the effects of the crime and they thought that talking about it would make it worse. Again that might be true except that it is quite interesting that throughout this survey, and indeed every other survey that I know about victims, every single research project I know about victims - I know we have got researchers who have been victims, I think, in this room and I hope you will confirm this too - I have never known a survey with a victim who does not enjoy being interviewed. The vast majority of people actually like to think that their crime is being taken seriously and that they have been given a chance to have their voice and say what they have to say about their experiences, their reactions and how they feel about it. Certainly the children in this survey who were interviewed virtually all reported that they valued the experience and even said that they got something out of it. It wasn't intended to be therapeutic but quite a few seemed to think they got quite a lot out of it.

So what are the effects? Well, the researchers in this particular survey were very responsible - they didn't over-dramatise the things that they found. I did find, not surprisingly, that 55% of their total survey of people seen and interviewed were very upset by a whole range of crimes. The worst ones included sexual crimes without a doubt, other physical assaults, particularly the more serious ones. Also some relatively minor crimes that we tend to forget about - the theft of a bicycle for example, which is just given peanuts, you know in a police charge sheet, to a child who might have saved up a long time, its their most precious possession and also their way to freedom and independence, it can be a very important item, rather like a home or a car might be to us perhaps. But anyway, I will put that aside for one moment.

The other group of children who were most badly affected were those whose parents had been victims of physical assaults. A really remarkable finding, I think, is that just as we know parents say that they are more deeply affected by crime against their children, than they are crime against themselves, so we found that children were deeply affected by crimes in which their parents were seen to be vulnerable, were seen to be assaulted or abused by other people. It challenges the whole idea of safety and justice for a young child and it is very difficult to get things back into perspective. And we have quite a bit of evidence on that.

I would just like to tell you about a range of cases. I have selected just three cases to tell you about very, very briefly and they are all in the area of sexual crime. Just to give you an overview of some of the reactions that we found. First of all, a ten year old girl who was sexually assaulted by a neighbour. Now she was reported to be a cheerful, outgoing girl who liked school, had lots of friends, liked to go out with people and so forth. The main effect that her parents had observed as a result of this sexual crime was that she wouldn't talk to anybody about what had happened. She no longer wanted to see her friends. She felt as though a barrier had come up in some way because she was scared that people would ask her about it or that something about it might slip out. So she didn't see her friends any more, she was extremely bitter, particularly with a younger brother she started getting a bit selfish and possessive. She was also bullying younger children which she had never done before, almost as though - here I am speculating - she was passing the violence on. This is possibly a trend that we need to do more research on and find out a bit more about, which is, how much victimisation can cause a reduction in your own values and affect our own behaviour towards other people? It was really a personality change that the parents were most distressed about. She was a very cheerful, outgoing little girl, who presumably had just been a bit too friendly on this occasion, found herself to be vulnerable, had stopped being friendly altogether and we don't know how long that went on.

In the second case of a boy, this in fact was a 15 year old boy, whose sister was raped, his younger sister was raped by a boy at his school. And again he had been the sort of boy like many boys of that age, who hadn't taken a lot of notice of his younger sister, had preferred his independence, had preferred the company of boys. But after this had happened, and he knew what had happened, he became almost obsessional in his possessiveness about his sister. He followed her around everywhere. He would wait for her after school and take her home, even though she didn't want it and the parents hadn't asked him to. If any boys came anywhere near her, he would literally threaten them to a fight. It changed his behaviour altogether and as time went on - because I think this case had been around for a little while when the research was done - then other boys were beginning to go out in mixed groups and had girlfriends, he wouldn't have anything to do with girls at all. In fact he was adamant that this wasn't the sort of thing that he wanted to get into. So it had also affected his view of what normal sexual relationships were all about, boys and girls becoming friends, getting to know each other. It affected his attitudes to other people really quite substantially, in particular to his own sister. And of course one of the problems with young victims is that over-possessiveness - which is usually felt by parents, but sometimes by other people - can sometimes affect them re-gaining their autonomy and their freedom and getting back out in the community. But you do see his happening very, very often. One thing goes wrong and its: 'Get home on time next time'. Suddenly they lose a lot of the freedom that they already had through their normal private process.

And finally, I think possibly one of the nastiest cases in the whole sample concerns a 7 year old boy who was actually present when his mother was raped. One of the problems with this boy and one of the things that caused his mother enormous distress - bear in mind rape is not something we want to talk about as I said before. This little boy who didn't understand what it was he witnessed - he just knew that it was bad, that his mother was very distressed and he was very distressed - wanted to talk about it all the time. He kept asking questions about it: 'what was happening? why was he doing that to my mummy, what was that all about? how did you feel?' And it is very embarrassing for the parents because he was asking these questions and talking about it in what they regarded as inappropriate situations when other people were present or when they were doing something with the family and not wanting to talk about that at all. And there is this dreadful dilemma that you so often find - how much do you actually talk to the child about it, encourage them to talk, encourage them to bring out and share their feelings and get them into some perspective?

One of the other things that I think I ought to mention is that whilst I have talked about the invisibility of these crimes I have not said a great deal about what the adults in this situation are thinking and feeling. What we have to bear in mind quite often is that the adults sometimes feel extremely guilty themselves about what has happened. Quite often parents or a teacher will feel that they should have been able to do something to prevent it. One of the reasons why they don't take it any further is that they feel that they are responsible and that they feel that if they were better parents or better teachers they could prevent it happening in the future. Once again this doesn't come to light.

So I am going to end this section of what I am talking about by just telling you about one case which really stood out in the survey. And that was the case of a young girl who reported to her teacher, after what appeared to be something of a struggle inside herself, that she had been having some rather unpleasant experiences with a neighbour, but had been too frightened to tell her parents about. She told the teacher and the teacher encouraged her, quite rightly, to speak. She talked about it and what emerged was that she had been kept in somebody's house and was interfered with - what virtually amounted to a rape. I say that because it is sometimes pretty unclear to say whether something reached a legal definition but certainly a very, very serious offence and it was either rape or attempted rape. Well the teacher worried about it. She worried that the girl might have been imagining things. She worried that the girl might have seen something on television and been fantasising. She worried about whether or not she was being set up in some way and she worried about it for two weeks before she told the headmistress. The headmistress advised her not to over-react and to think about it a little while longer while they sleep on it and consider what to do about it. The headmistress eventually told the school chaplain and talked it over with him and he advised, again, that they should think very carefully about what they were doing but really they probably ought to tell the parents. So the parents were eventually brought to the school and they were told what the girl had reported and they reacted very strongly because they knew the neighbour and said that it couldn't possibly be true. She must be imagining things. Then they pondered about it for another two weeks and eventually it was two months before the police were informed about that crime and we don't know how long it had taken before the girl had told the first adult. There was a whole series of adults not being quite sure what to do about what we would regard as a very serious crime.

I am going to move on now to the process of prosecution or first of all deciding whether or not there is going to be a prosecution. I am not going to give you very many details about the decision to prosecute because we don't have very many details. They should have collected information but the research has not been done. To the best of my knowledge there hasn't been a detailed study of decision-making in prosecution in relation to child witnesses. Is that right? I am looking to the more informed people from the academic community. I don't know of one if there has been. Not amongst children anyway. We do know that there have been studies about sexual crime and the huge rate of fall-out in sexual crimes that still exists. I am sure you will know of a very recently published report that said that only 10% of all rapes that were reported to the police - and bear in mind how many have fallen out before you get to reporting it to the police - end up with a conviction. And this just shows that at every stage along the way these cases are falling through the net.

Now with children and indeed other probable victims and witnesses. I think there is an additional issue and I know this because I know a lot of prosecutors, I know a lot of judges, one of my tasks in life is to go and speak on a judge's refreshers course which is organised by the Judicial Studies Board, so four times a year I have ninety judges, or thereabouts, and I have to talk to them about what I think might be going wrong in their courts and what I think they might do about them. So I have quite a bit of feedback about what is going on in these cases as I do get a chance to chat to people individually as well. Now what I have discovered is that a lot of people in the judicial establishment know that it isn't very pleasant coming to court. You know, the message has got through that standing in a witness box, giving evidence and being cross-examined isn't very pleasant.

I don't know how many of you have actually been to a court and experienced cross-examination? Have many of you? Quite a few. You should. I think it is terribly important. I went right through university and didn't witness a trial until I was 23 and in the Probation Service, and I can remember to this day how shocked I was watching a young rape victim being cross-examined. The court was full of men and there was this young girl standing in the witness box - I was the only other woman in the court - and she was being asked the most intimate details - things to do with taste and smell and how she recognised certain feelings - had she experienced them before? Deeply intimate, intrusive questions in cross-examination to test her evidence. And what of course was happening in that place - it was a long time ago. I won't tell you how long ago I was 23, a very long time ago - and she was reduced to tears and I asked if I could take her outside as an officer of the court and I was shouted at for being absurd in court. That case I remember to this day was thrown out because the witness couldn't complete her evidence on cross-examination. And I think things are a little bit better now - I think the message is getting through gradually and we are told that the Bar Code of Conduct is constantly being improved, although I frequently find that barristers don't know about recent improvements that we have negotiated into the Bar Code of Conduct, for example meeting your witnesses in advance of court, just to say hello and that you are going to be the person who is going to be asking the questions. That has now been accepted by the Bar but I find that a lot of practising barristers don't know that we have changed the Code, but there we are.

What I find is that a lot of people in the judicial establishment will say it is such an appalling experience for the victim or witness when they go to court, that this child is so young, so inexperienced, or this woman is so mentally fragile, she has been ill, she has been depressed, she has had a breakdown, whatever. And because they are vulnerable, some people think it would be better not to take the case to court at all. You might be surprised and you might not be surprised at how often that sort of thing is said. And it is said with the best will in the world, with great caring and concern. A judge actually recently came to a conference where I was talking about mentally vulnerable witnesses. He actually stood up to make a contribution and said that he found it very distressing hearing about the cases we discussed and surely it would be much, much better if we all recognised that where a witness was mentally vulnerable, it was better not to prosecute. You can imagine the outrage from MIND and MENCAP and all those organisations present, not to mention victims organisations like ourselves. The feeling was that you cannot simply drop a case because the witnesses are handicapped. My goodness, that recent case of sexual abuse in Wales and many others like it demonstrate that there is far too much of victimisation of mentally vulnerable people going on already. But this is the problem. The system of justice that we have got at the moment is known to be, dare I say it, brutal, particularly if people don't understand what is going on. They find it deeply distressing. I believe that as a result of that quite a lot of these cases do get dropped in the 'public interest'. As you know, the Crown Prosecution Service had two factors to establish before they take a case to court. One is that there is sufficient evidence to prove the charge and the other is that it is in the 'public interest' to pursue the prosecution. I do think, probably, and it is very hard to prove this, but with the best will in the world, some of these cases have fallen through. So we suspect that there isn't a very high proportion of these cases actually getting into court at all.

But then what happens when they do get to court? Once again, we became concerned about this. Now I am going to pause briefly and say that to those of you who don't know about Victim Support, first and foremost some of the local members are present and I am sure they will be very happy to tell you exactly what is going on in your area, but just to tell you very briefly, there are now Victim Support schemes in every part of the country. They are usually run by one or maybe two paid members of staff, not paid very well, I might say, but paid members of staff. But most of the workers visiting and contacting victims are trained volunteers and we do have about 12,000 trained volunteers in this country. They have all gone through what we think is rather good, professionally developed training to help them not to be judgmental, to listen accurately and to know what sort of help might be available. A few years back Victim Support was so concerned about witnesses generally we mounted some more research - which I am not going to tell you about today because there are too many other things to talk about - to find out what was happening to witnesses in the court. We discovered that without any doubt at all that witnesses were having a hard time, and so we got together a project to demonstrate that we could help witnesses when they got to court, we can make the experience better for them so that they would make better witnesses and feel better about the whole experience with a bit of luck. But certainly we could sense some of them had terrible problems with insecurity and confusion about what was going on, but we were there to support them. So now, when this government backed us, eventually, we now have a Witness Service in every crown court in the country, including your own, in Leeds. And there will be a group of trained volunteers there, hopefully, if we are able to get the list from Crown Prosecution Service, we contact people in advance so that we can offer them a visit to the court, show them what a court looks like, either when sitting with a case going on that isn't their own, or taken into an empty courtroom; let them stand in the witness box; show them where people sit and so on. And then we can give them separate waiting rooms when they come along to court, a little bit of company on the day, talking about absolutely everything and nothing except the evidence and then we can go into the court with them if they wish us to so that we are there to see what happens, just to know that there is someone in the court for them, even though you are not allowed to look at them or make contact with them. We can help de-brief the witness if they didn't understand what was going on or to keep them up-to-date with what happens after court. That in a nutshell is what the Witness Services do.

Now I reckon Witness Services are becoming extremely concerned about what was happening to vulnerable witnesses generally. So two years ago, two of our Witness Service co-ordinators got together and decided that they were going to do another survey, this time what happens to children when they come to court to give evidence. And that survey was completed during last year - we in fact published it - I have got a copy of it here and I am going to leave one with the university, but others are available from us. This is Children in Court, a research document by Victim Support. This research is really unique, nobody has ever done this before. We managed to find information and we tracked cases through the court, or our court researchers did. 1,000 children who came to court to give evidence and this was done over three separate periods of three months at six months or more intervals but 1,000 cases were tracked and quite a lot of detail about the age breakdown and types of crimes that they had experienced.

What I am going to give you is just three very short examples of some of the things we came across. First of all, this one is a six year old boy who had been a witness to a sexual assault, a very distressing event for him committed against one of his friends, another six year old boy. He was summoned to attend court at 10 a.m. and he had some preparation which was legal preparation, legally proved preparation which I will say something about in a moment, and he had a bit of support - Victim Support and the Witness Service were there together with his mother. But he was called in at 10 a.m. and he was kept waiting until 4 p.m., aged six, under stress. I don't know how very competent he was as a result - and I don't have children, but I know enough to know that a six year old is going to be pretty tired by that time. You know, the adrenaline will be flowing and dipping, flowing and dipping so many times during that period. As he went into court and was taken through his evidence and then the cross-examination began and he was picked up on certain details of his evidence, what he said about this little detail. I don't know what it was, it could have been the colour of a coat or the exact time of day: 'It isn't quite what you told the police officer at the time, is it?' And questions of this sort. The little boy became very confused and very distressed and he burst into tears and was unable to continue. He was caught out on two or three little details, neither points were substantive evidence at all, after preparing himself to go into court and do his duty, which is what children are told to do - an important job for society - and he got himself all geared up to doing this and then he couldn't continue and the case was thrown out. The mother said to us: 'What I can't get over is that my son was being so brave and now all he can say is that "Mummy, why didn't they believe me? I was doing what I was told to do, I was trying to tell them the truth, but they wouldn't believe me. The policeman told me he would go to prison and he isn't. What has happened?"' This little boy was in total confusion. How do you explain? What was the relevance of all that talk during the trial about 'justice'? What does it really mean? What does that experience add up to in relation to being protected by the adults in the community, by the criminal justice process generally?

Another case, three girls, older children this time. They were about 14 and again it was a sexual assault on one of them that the others had witnessed. They too were already to give their evidence and fully prepared to give their evidence. They had been told they mustn't talk to each other about their evidence. They had been trying to do their best to do this. What had happened in this case was that they were summoned to go into one court, sat all day, the case wasn't heard, and they were sent home again. They were recalled the next day, to be told it had been reconvened in another court. They went to another court after about two months and again it didn't happen. Eventually it went to three different courts in three different towns before they came to give their evidence, several months had elapsed from the first time they went to court to the time that they actually gave evidence. Many people would have given up. They didn't. They were determined to see it through. But again, just look at the stress that they were putting these young people through.

And finally, the cases I have selected to just give you some relative view of some of the problems - the problems that we have identified. A sixteen year old girl who had again been sexually assaulted by three youths and she was the only witness. She was the only person present, so she was obviously going to be the main witness for the whole of the case. She had had some preparation - she had gone along to the court and she had been shown a screen - she had opted to use screens. There is the possibility of recording evidence on video which is used as the evidence in chief, which quite an advance. There is the possibility of giving your evidence live on the day but in a separate room with a video link and there is the possibility of having screens to protect you so that you can't see the defendants while you are giving evidence. Also they can't see you. And also if the screen is in the right place the public gallery shouldn't really see you either, although the jury can. That is the way it ought to be, it doesn't always work like that. For all that, she had been shown the screen, she was sitting in the witness box and shown where the screens were, where the defendants were going to be. When she got to court the judge said to the sixteen year old girl, 'You look a big girl for your age, I don't think you need that childish stuff, do you?' and the screens were not allowed. And I can't tell you how often that has been happening. We should be getting rid of these problems by now because decisions should now be made at clear directions hearings, but it is not quite working yet - I am not quite sure what is going on, but it is not quite working yet and prior to that there were lots and lots of these cases where people prepared in one way and not allowed to use it. This case was awful - quite tragic. She gave her evidence live. The boys were convicted, but afterwards she was visited by the three girlfriends of the boys concerned and beaten up so badly that she ended up in hospital. And they wouldn't have known her if they hadn't seen her in court. There are many other examples.

The conclusions of that research were that really three things were seriously wrong, needing urgent attention. First of all the preparation of child witnesses. There are some beautiful packs of information being prepared by the Children's Agencies and the Home Office for use of children giving evidence in court. It tells them their job, it tells them why it is important they do their duty well, it tells them about telling the truth, trying not to get confused and to ask the judge for help if they need help. It takes several hours to prepare a child to go through this - with little games to play, little courtrooms to assemble out of cardboard and they are marvellous things, or colouring books to colour in, they are really rather nice. We discovered that only a third of our witnesses in the sample had ever seen a pack or had any preparation. The other two-thirds had not. And what seems to be happening is that very high profile, serious cases of sexual abuse are getting good preparation from professional social workers or the NSPCC, but most of the other children who had different types of crime or who were just witnesses, had no preparation whatsoever, unless these days of course, the Witness Service pick them up in time. The waiting is a big problem which I think I have already demonstrated. Fast tracking is being brought in gradually, and I think things are improving, but we are still getting some cases taking over a year to get to court.

In court, in our survey, 25% of our young witnesses waited for more than one day; in other words they had to come back to court after waiting one day. We believe that young witnesses should be allowed to wait at home or somewhere else because with modern technology, we should be able to get a telephone call to them, with a suitable adult who is waiting with them, to bring them to court in time to give their evidence - even if there was a slight delay - 10-15 minutes of court's time - even that shouldn't be necessary, but surely that is better than having the young people sitting there, better than stress and not being able to do their job at all. That's my feeling.

In relation to their evidence, many of our children in our survey had to give evidence for four, five, six hours and I think there was one case, that was a day. It involved quite a young person. Is it reasonable to expect them to do justice in this way? Meeting the barrister is very important, for some barristers are still, as I think I indicated before, not thinking that was the proper thing to do. They always thought it was not the proper thing to do, but for some reason some still do.

And finally, the way in which they should give evidence - they must know in advance, well in advance, how they are going to give the evidence, how they are going to be sitting, where they are going to be, and in the video room. I don't know whether you know this, but repeated Lord Chief Justices have decreed that the only adult allowed in the video room is the usher, whether specially selected for that purpose or not. Some ushers are brilliant, I know I have met some, but it is not really their job, except to deal with the equipment. There are suggestions that somebody from the Witness Service or even someone from one of the children's agencies, should have the special job of going in with the child for a bit of moral support without contaminating the evidence. The Director of Public Prosecutions agrees with us, lots of other people agree with us, some judges agree with us and let it happen in their courts, but otherwise it is not allowed at the moment and we need to sort that one out. And of course there is the issue of screens. In our sample 25% of all young witnesses who asked for screens were refused permission to use them. I would like to say that I think it should be automatic below a certain age. Screens should be available for other sorts of witnesses as well, but there we are. That is what we have.

I must end because I have spoken for much too long. I said I wasn't going to speak for ever and I have done, so I apologise for that. But I will end by saying that a lot of good things are happening. There is a really brilliant video that has been made for judges - if you get a chance to see it, do see it - it was launched only two weeks ago and it is wonderful, showing judges how they ought to conduct a case with child witnesses. Lots of judges are in this film which has been sanctioned by the Judicial Studies Board so we hope that it won't be thrown out without question.

The witness packs are great - I have described those. The Witness Service is great, though you will forgive me saying it myself - I don't work in one but I think they are wonderful and I think so do most other people who work in court. I get fabulous feedback from judges and from all the administrators working in courts and all the fears that people had with interfering, I don't think have come to anything at all. And also, the new Trial Issues Group - does that name ring a bell with some of you? Do you know about the Trial Issues Group? I am not going to describe it but basically it involves all the departments who work in court, coming together to look at the procedures and how they can make them better. And that Group has just very recently made some interesting recommendations, but we will wait and see what is going to happen. The key to all this is training and flexibility. Training for everybody who works for the law to recognise not only what can go wrong but the very serious consequences if a whole group of young people in our community - particularly if they are vulnerable people - grow up thinking there is no justice in this country, that there are very, very serious consequences.

I am going to end by reading you a little bit of text that we put at the front of our report. We searched everywhere for literature to say what really fits this case - you know it could have been Shakespeare, it could have been the bible. We came up with Lewis Carroll and it is rather nice:

Introduction

Since the outbreak of the 'Troubles' in Northern Ireland the paramilitaries, in a crude and violent bid to police their own communities, have exacted over 2000 so-called 'punishment' shootings or kneecappings. Both Republican and Loyalist activists maintain that they are responding to a community demand to stem levels of anti-social and criminal activity in their respective neighbourhoods.

Paramilitary 'rough justice', misguided though it may be, is not simply a blank manifestation of naked violence. Embedded in this practice is a fundamental quest for legitimacy. In operating their system of 'policing' the paramilitaries lay claim to a mandate from the community. Misguided though it may be to ascribe paramilitary 'policing' to the ambiguous notion of 'community demand', it would equally be erroneous to simply impute it to coercion and violence. To understand the hold that paramilitary 'rough justice' has over certain communities in Northern Ireland, one must begin to examine both the claims to legitimacy of those who dispense this form of 'justice', and the views and attitudes of those who accept it.

The following exposition is an attempt to outline the extent of paramilitary style policing and to delineate the justification for internally directed forms of violence. By highlighting this issue I do not aim to fuel publicity or to add any semblance of credence or moral acceptability. The purpose, rather, is to enlighten in order to provide a basis for objective evaluation and discussion. The content will be mainly descriptive. Additionally, due to constraints of time and space I have limited the scope of the discussion to Republican 'rough justice', particularly that of the IRA. This is not to suggest that Loyalist 'rough justice' is not a significant issue equally worthy of study.

Before commencing and due to the potentially contentious nature of the subject, it is vital to stipulate several important qualifications in order to place the following argument into context. Nomenclature and terminology in Northern Ireland are important. Phrases and words are frequently employed as political expressions of identity and are intentionally partisan in their implication. The term 'punishment', for instance, as employed by the IRA, is heavily value laden in that it somehow denotes that the victim is deserving of the treatment meted out. It would be both naive and beyond the jurisdiction of my ambit to argue or imply that this was the case. As such, 'punishment', is placed in inverted commas to denote the views and attitudes of one particular group.

Additionally, throughout the text I have employed a variety of terms (such as rough justice, alternative justice, popular justice, etc.) aimed at describing the 'extra-policing' function dispensed by the IRA. Again many of these terms are value laden particularly, I would suggest, the term 'justice'. Consequently, when the affix 'justice' is applied I am not suggesting or inferring any degree of legitimacy or moral acceptability.

Finally, it should be stressed that the views expressed in the following do not claim to be representative of the Catholic population in Northern Ireland. Nor are these views held by all nationalists. In the first instance no such homogeneous view point exists in that not all Catholics are nationalist nor are all nationalists republican. One generalisation that can be made about Northern Ireland without due fear of contradiction is that political consensus is in the minority. However, to place the argument into some kind of perspective, the views expressed could best be described as a form of republicanism.

The practice of 'punishment'.

Media representation of this form of 'alternative justice' has been, for the most part, sensational and distorted. The media's partial account would have us believe that 'alternative' policing in nationalist areas is simply about 'punishment' beatings or shootings. However, these represent but a small part of a much more comprehensive system of policing and control.

Nevertheless, 'punishment' shootings are continuously at the forefront of public attention and consequently it is appropriate to begin by quantifying the extent of this particular form of 'punishment'. Official statistics, supplied by the RUC, are available from 1973. In total paramilitaries in Northern Ireland have carried out over 2000 shootings of which nationalists have carried out just over 60%. Table 1 illustrates the level of shootings by Republican paramilitaries throughout the course of the troubles.

Internally directed violence is prevalent in working-class areas where the paramilitary support and hold is traditionally strongest. The majority of republican victims are parochially known as 'hoods'(see for example Thompson and Mulholland, 1995). Typical 'hooding' activities include, for example, joyriding, drug dealing and other forms of 'anti-social' activity. Most victims, if not all, are male, working class, often unemployed and are mostly between 16 and 29 years of age (See Kennedy, 1995).

The process of determining 'sentence' (though not, of course, the nature of the punishment itself), it is interesting to note, references in many respects that of the state system. For example, the seriousness of the 'offence' is considered in conjunction with the offenders' perceived 'previous record'. Also considered are such mitigating factors as unemployment, social and familial background, and alcoholism (Morrissey and Pease, 1982). The IRA maintain that representatives will mediate and consult with parents in an attempt to arrive at more 'constructive' or 'socially acceptable' ways of dealing with the problem. It should also be pointed out that before anyone is subjected to physical 'punishment' they will usually have received several warnings, or a curfew may have been imposed. Except in the most serious cases, physical 'punishment' is reserved as a last resort. (See for example, An Phoblacht/ Republican News, Dec., 19, 1991)

Failing mediation, the extent of the 'punishment' is gauged according to the perceived seriousness of the crime. The above mentioned mitigating factors determine the number of limbs shot, the calibre of bullet used and even the entry point of the wound. For instance, the victim could be shot once in each leg. Alternatively, in more extreme cases the offender can be shot in both legs, the ankles and the elbows (euphemistically known as a six-pack). The IRA are keen to stress that resorting to physical methods is undertaken with great reluctance, an unfortunate result of the extraordinary situation and the lack of viable alternatives open to them.

As previously mentioned, the practice of kneecapping is only one small part of a much wider system of policing and control. Other sanctions include, for example, expulsions (both from the country and the neighbourhood), abductions, direct and indirect forms of intimidation, and a variety of community type sentences, much akin to recently publicised measures imposed on curb crawlers in the United States, aimed at publicly humiliating the alleged offender. On a more extreme level, of course, are summary executions (such as the shooting of 'alleged' drug dealers during the recent cease-fires) and, the highly publicised 'punishment' beatings.

Contrary to popular belief, 'punishment' beatings are not a new phenomenon. In fact so-called 'punishment' squads have operated throughout the course of the troubles. The RUC have officially recorded such assaults since the early eighties (although it should be noted that official figures represent a bare minimum, as victims often do not need hospital treatment and are unwilling to report the crime). Between 1991 and 1996 Republican paramilitaries have carried out over 400 such assaults (RUC statistics unit). The typology of the average victim is practically identical to victims of 'punishment' shootings. Often repeat offenders will graduate from being beaten, sometimes on multiple occasions, to getting 'capped'.

To the average reader a 'punishment' beating might sound less savage than a shooting. In many instances however the opposite is the case. Generally a beating will last longer and the assault would be less controlled. The attackers employ a variety of weapons including concrete blocks, hurley sticks, hammers, iron bars, baseball bats and sticks with protruding nails. Additionally press reportage of such attacks during the cease-fire period demonstrated the increasing use of a variety of torture and terror tactics, as the following article illustrates.

The attacks are often more intense, violent and humiliating, and the injuries sustained are more grievous. A woman who spoke to one of the victims following the above attack illustrates the impact such attacks can have:

Throughout the course of the recent cease-fires the levels of beatings rose dramatically. Table 2 gives some idea of the level of increase but it should be remembered that these figures represent a bare minimum. To put these figures into proper context, however, it is important to realise that this increase is in many respects the result of the fact that both the IRA and Loyalist paramilitaries had, in light of the cease-fires, given tacit assurances that kneecappings would no longer be carried out. As such the rise in beatings partly reflects the substitution of assaults for beatings.

The Republican Justification

In an article on crime and punishment in the Belfast Telegraph the author posed the following hypothetical question: "If you were robbed, violated, raped, mugged, battered, bruised and generally physically and/or mentally wrecked would you prefer your assailant/s to be jailed for six months or two years or kneecapped by paramilitaries?" (Feb., 6, 1996).

Whilst I would assume that most people would be appalled by the notion of forcibly taking a 16-year-old from his home and shooting him in the knees for stealing a car, in many working-class nationalist areas of Northern Ireland the reaction is not so easy to gauge. Any specific measure of communal support would be difficult to assess as it is prone to change given the exigencies of any particular situation. Nevertheless, there does exist a considerable support base that allows for the continuation of these forms of 'punishment'.

To understand the tolerance accorded to IRA style 'rough justice', it is necessary to view the system in the social and political context within which it operates, and to be aware of the opinions, attitudes and experiences of those very people who demand it. The IRA generally justify employing extreme measures along three basic premises.

Firstly, they argue that the RUC are perceived as sectarian, partial and unrepresentative of the views of Catholics. From the Republican point of view such events as those on the Garvaghy Road at Drumcree over the past few years only serves to add credence to this view. (In an opinion poll in the Irish Independent, 3 February 1995, 45% of Catholic respondents voted in favour of disbanding the RUC.) Moreover Republicans argue that the RUC itself often applies extra-judicial means such as the much highlighted beatings at Castlereagh and the alleged shoot to kill policy (for a discussion of this issue see for example, Amnesty International's report, 1994). As such, the IRA maintain that they have an intrinsic duty to the community to fill the vacuum in policing which exists because of the lack of faith and confidence in the RUC as a police force.

Secondly, in line with any successful revolutionary organisation, it is essential to create alternative structures to that of the state. That is, in rejecting and contesting the legitimacy of the state, the creation of alternative structures is a requisite component of the overall strategy to affect political change.

And finally, the IRA maintain that the RUC employ criminals as part of their counter-insurgency strategy. They argue that the RUC deliberately ignores the petty criminal and anti-social activity of the 'hoods' for their own strategic advantage. By doing so the IRA argue that they are forced to employ valuable resources to deal with these offenders as failing to do so would reflect negatively on their image within the local community. More significantly, it is alleged that the RUC actively strive to recruit petty criminals as informers as the following statement in An Phoblacht/Republican News suggests:

Conclusion

Although a few journalists (notably Malachi O'Doherty, Anne Cadwallader and John Cusack), and (even fewer) academics must be commended for both highlighting and informing this contentious issue (see for example McCorry and Morrisey, 1989, Munck, 1985, and Kennedy 1995), it would be fair to suggest that the debate on 'alternative justice' in Northern Ireland is still in its infancy. Coverage in national newspapers, for the most part, has been substantially shallow, tending to sensationalise and criticise without reflecting in any depth on the history, context, and opinions and attitudes of those living in the communities within which these forms of 'justice' are dispensed. By failing to do so they portray at best a partial but naive rendition. To be in a position to understand and objectively evaluate the system of social control operating in nationalist communities today, it is imperative to outline an account free from value laden traditional conservative morality.

The IRA are aware of the dangers of alienating public opinion by resorting to activities which do not hold at least the tacit consent of the nationalist community. To be fair, the issue of policing is one of perennial debate in republican circles. Few republicans would argue in favour of the intrinsic merits of current procedures. However the IRA claim that they are acting in response to community pressure. As I have already pointed out, the exact extent of this demand is difficult to ascertain accurately. Nevertheless it would be very naive to attempt to deny that any such demand does exist. IRA members are recruited from, known to, and operate within their local community. Should that community reject their activities, it is unlikely that the IRA could have been able to sustain and wage their 'war' for the past 25 years.

It is understandable that most of us would regard such practices as 'kneecapping' morally reprehensible and utterly unjustifiable. However, I believe it is simplistic for us to condemn those who tolerate such practices without considering what compels them to do so in the first place. Many people living in nationalist communities feel alienated, brutalised, stereotyped and discriminated against. The RUC is not deemed as either effective or acceptable. The British Government's presence is viewed as illegitimate. The loyalist community is perceived as a severe threat to life. And internally, the 'hoods' are regarded as an additional burden that the community should not have to tolerate. In these circumstances it is perhaps easier to understand why so many in Northern Ireland accept IRA 'rough justice'.

Given the current IRA and Loyalist cease-fires, and the beginning of the long awaited 'talks process' in the province, it is perhaps a befitting occasion to begin to take issue with one of the many criminological issues that have largely been neglected over the past years. In doing so, however, it is clear that this paper raises more questions than it answers. This is inevitable in that, as Garofalo points out, "part of the nature of complex social phenomena is that their complexity becomes apparent as they are examined more closely" (1981; p.839).

'Rough Justice' in Northern Ireland represents more than simply local Mafiosi exerting authority over territorial rights. It represents an important ideological arena in which issues of coercion and consent (or legitimacy) through locally perceived symbols of 'justice' merge. On a wider criminological level it throws into question the nature of the relationship between 'alternative' and state law, the ideological appeal of the 'alternative' and its justification, and notions of normative values and perceptions of 'justice'. To this point 'alternative policing' in Northern Ireland has been compartmentalised and treated as distinct from the wider discussion regarding alternatives to justice. More than anything it is hoped that this paper demonstrates that, although individual and unique in its own right, the Irish case merits assimilation into the mainstream criminological debate.

Bibliography

Introduction by Professor Clive Walker

Can I welcome you all to this the 15th Seminar in honour of Frank Dawtry, who was the General Secretary of the National Association of Probation Officers. These seminars were established in 1973 to commemorate his work in criminal justice and previous speakers have included politicians such as Home Secretary Douglas Hurd, academics such as Professors John Smith and Roger Hood, and practitioners such as Ray Kendall, Secretary-General of Interpol. But this is the first time we have had a judicial figure, and to start with such an eminent representative from that world makes this occasion special indeed.

I am delighted to welcome a person who can give us wisdom and experience in this debate on "The Uses of Custody", Lord Justice Paul Kennedy. Lord Justice Kennedy was born in Sheffield and read Law at Cambridge before entering the Bar in 1960. He was appointed as a High Court judge in 1983 and became known to many practitioners in the criminal justice field in this locality as the Presiding judge of North East Circuit 1985 to 1989. He went on to become, until recently, Chair of the Crminial Committee of the Judicial Studies Board and was appointed a Lord Justice to the Court of Appeal in 1992 where he now sits as Vice President of the Queen's Bench Division. He has been associated with the Centre for Criminal Justice Centre here at the University of Leeds for a couple of years now as one of our very valued Advisers.

Lord Justice Paul Kennedy

1. INTRODUCTION

In November last year, when Professor Walker invited me to speak on this occasion, there was still a Conservative government, the White Paper "Protecting the Public" had been published the previous March, setting out in detail what the Home Secretary Michael Howard had proposed at the Conservative Party Conference, and the Crime (Sentences) Act 1997 had yet to be enacted. The White Paper had provoked an immediate reaction from Lord Taylor, still then Lord Chief Justice, and I have no doubt that it would have provoked a similar reaction from Frank Dawtry had he survived that long. He died in 1973, but as the General Secretary of the National Association of Probation Officers he could hardly have welcomed the proposals set out in the White Paper, some of which are now to be found in the 1997 Act. In his introductory note to that Act in Current Law Statutes Dr David Thomas QC says:

The present administration does not seem to be minded to repeal the Act, and indeed has decided to implement some parts of it, so it seems to me that today it may still be useful to do a little stock-taking as to the uses of custody, even though happily the topic is not quite so contentious as it was a year ago. I am very conscious of the honour of being asked to speak on this occasion. My predecessors have included distinguished academics and politicians but not, I believe, any serving judge, so it is perhaps appropriate to emphasise that my remarks as to the uses of custody are made from a judicial perspective - they express one judge's point of view.

2. HISTORICAL ACCIDENT

Almost up to the time that Frank Dawtry died, judges were still going round the country on assize, and when at each assize town the Commission was read the judge was reminded of his duty to "deliver" the jails, that is to say to empty them, not to fill them. It was a healthy reminder, because it made the point that incarceration is not a long-established and carefully evaluated response by society to the problem of crime, a sort of all-purpose antibiotic with no side effects. Rather it is a relatively recent backup form of disposal which has increased in prominence as other forms of disposal have become unavailable. Medieval jails were places where prisoners were held pending a trial, but not generally thereafter. By the mid 16th century there were work houses or Houses of Correction nationwide, administered by local justices, following the pattern of the London Bridewell, but their purpose was to provide work for vagrants or the unemployed, and only gradually did they come to be used to imprison petty offenders. Until the early 19th century all felonies except mayhem and petty larceny were in theory capital, but the rigor of the law was to some extent tempered by the use of benefit of clergy, by the reluctance of juries to convict, and by transportation. The Marshalsea and the Fleet prisons were used mainly for debtors, and in the late 18th century John Howard began his crusade against the misery and degradation which existed within prison walls. The Prison Act 1778 can be regarded as the starting point of the system which we know today, but when it was enacted transportation to Botany Bay was still being offered as an alternative to imprisonment. That was condemned by a Parliamentary enquiry in 1837, and another enquiry condemned the hulks or floating prisons which, as readers of "Great Expectations" we all recall. That is no doubt why even today there is something very disturbing about the decision to hire an American vessel to act as a floating prison. It was not until 1857 that the colonial territories refused to accept transported convicts, and thus forced the United Kingdom authorities to provide for substantial numbers of convicted prisoners whom it was considered inappropriate either to release or to execute. Many new prisons were then built and I suspect that Armley was one of them. Penal servitude was introduced, and in due course the report of the Gladstone Committee of 1894 led to the Prison Act 1898. It abolished hard labour, and divided prisoners by reference to their offence. It provided for remission of up to one sixth of the sentence, and so we can see present patterns beginning to take shape.

Early in this century there was a move to take adolescents out of the adult prisons and the first Borstal institution was opened at the village of that name in Kent in 1908. Probation came on to the scene in the United Kingdom at about the same time. It was introduced in 1907, and in 1948 penal servitude and hard labour were abolished. In 1963 it became possible to get parole after serving one third of a sentence of imprisonment, and in 1965 capital punishment effectively came to an end. So, with transportation and penal servitude no longer available, when a court had to sentence for a serious offence a substantial sentence of imprisonment became, not the disposal of choice, but in reality all that was left.

3. REACTION TO CRIME

I have spent a little time on a topic which may be familiar to many of you, namely the history of our present prison system because it seems to me that having regard to the almost accidental way in which imprisonment has become the most common way of dealing with really serious offenders it would be surprising if it should also have turned out to be society's most valuable response to the problem of crime, and I venture to suggest that although for political and other reasons politicians and journalists have vociferously suggested otherwise in reality it is no such thing.

For the purposes of this talk it is fortunately not necessary for me not to get involved in the question of what conduct is or ought to be regarded as a crime. Suffice to define a crime as any act or omission which may result in the perpetrator being brought before a criminal court, and I think we can agree that most but by no means all acts or omissions of that kind would be regarded by most people as morally wrong. That, as it seems to me, must be society's first and most significant line of defence. So it follows that in our complex society it is vital to do all that can be done to ensure that as many people as possible, and especially the young, share our perception as to what is unacceptable, and with that aim in view it is important not to cast too wide the bounds of unacceptability. In relation to very basic matters, such as respect for the lives of others, the problem is not great, but in relation to other matters it is interesting to see examples of the public being educated away from offending. Most people now use seat-belts in cars, and a great many, especially the young, refrain from driving after taking alcohol, not so much because they are afraid of being caught as because they and their friends accept that to act otherwise would be wrong.

In a wholly stable society, such as an agricultural village before the first World War, almost everyone would have recognised the boundaries of acceptable conduct. Those boundaries might not have been quite the same as elsewhere, but they were honoured and if there was a transgression that type of society had its own response. In Cider with Rosie, Laurie Lee said in relation to his sexual transgression:

Of course a large conurbation cannot be expected to operate in that way, but that passage can also be used to illustrate the danger of too much reliance being placed on criminal statistics. Is incest, for example, a more common crime in rural communities than it use to be 50 or 100 years ago? I doubt if the statistics would really help about that.

And as Christopher Nuttall, the Home Office Director of Research and Statistics, is always careful to explain, there are many other caveats to be applied, often to specific types of offences, before meaningful comparisons can be made. For example, there has been a substantial rise in home ownership since World War 2, and a commensurate rise in domestic insurance. Before a claim can be made against an insurer a burglary must be reported to the police, and most people now have telephones so the police record of burglaries for 1997 is probably a more accurate reflection of the number of offences committed than it was 50 years ago. Similarly whereas, for obvious reasons, offences of dishonesty tend to increase during a recession, offences of violence decrease - probably because people have less free money to spend on alcohol. The pattern is reversed when there is a boom, so little of value is likely to be learnt by lumping together statistics in relation to different types of crime.

That said I see no reason to challenge the general view that our society is becoming more lawless. The police were recording about half a million offences per year in the mid 1950s, two million in the mid 1970s and 5.3 million in 1994. How then should we react? If we fail in our attempt to persuade a criminal to eschew his proposed course of conduct on moral grounds we can often make it unattractive in other ways. If he is well housed and clothed and fed and has a job to occupy his time and satisfy his need for self-esteem and has decent leisure facilities criminal activity should be less attractive. It is not surprising to find that in 1993 when unemployment was 12%, among those convicted it was 60%. Having said that I recognise that deprivation is relative, and so to some extent it continues to exist when basic needs are satisfied; but that is no excuse for not satisfying basic needs. It is well known that most crime is committed by teenagers and young men. For males the peak age for offending is about 18-21 and for girls 14-16 so there is no doubt as to the group within society which needs extra support. Even within a particular age group it is not difficult to detect those who are most likely to offend. If they have delinquent friends or siblings, if they are excluded from school, or play truant, if their attachment to school or their family is weak they are particularly at risk, and these days the difficulty of offering support to the vulnerable young is compounded by the presence of drugs. A 1996 survey in four English cities showed that drugs other then alcohol and nicotine were present in the urine of more than 70% of those arrested. The level of heroin varied between 16% and 32%. Some voluntary organisations, such as Youth at Risk, try to meet that challenge. They gather up limited numbers of vulnerable young and give them intensive training for a limited period of time followed by a much longer period of support..

At a more mundane level crime can be made more difficult if potential victims take precautions and many people now do so. They lock their doors and windows, they fit burglar alarms, and when environmental agencies permit it they put bollards in front of shops which have been ram-raided. Mothers accompany their children when they go to play in a park, or travel to school, and women try to avoid walking home alone at night. Preventive measures can be very effective. I am sure that concrete bollards do reduce ram-raids, and when the German authorities required all cars to be fitted with steering wheel locks on the same day car thieves in that country received a body-blow from which they have never really recovered. Our car thieves were given more time to master the new technology, with all too obvious results. One very important way of controlling violent crime is by control of weapons. It is comforting to know that because our gun laws are strict the homicide rate in London is one-fifth of that in San Diego and one-thirtieth of that in Washington D.C.

Another obvious and potent disincentive to crime is the possibility of detection. If you drive along a road where the police have set up cameras which are known to be operating the effect is obvious. Even young men in drop-head BMWs can be seen to be driving at 40 miles per hour, and there is much to be said for the micro-chips which help to trace a stolen car, but the hard fact is that for most offences the risk of detection is rightly perceived to be small. Here too it is dangerous to generalise because, for example, homicide detection rates at any rate in this country are high.

4. THOSE WHO REACH COURT

It is estimated that overall about 7% of offences are detected, 3% result in a conviction or a caution, and 2% are convicted, so it is very important for judges at all levels, and for the general public, to recognise that for the vast majority of offences there is no possibility of a sentence being passed by any court. Also a significant section of the population do themselves commit offences at some stage in their lives. I am not talking only about minor motoring offences. About one third of males born in 1953 had been convicted of an offence other than a routine motoring offence by the age of 30, so any approach to sentencing founded upon the premise that offenders are a tiny minority to be identified and outlawed is misconceived. They are, whether we like it or not, part of the fabric of society so, to borrow a phrase from David Faulkner's paper "Darkness and Light" the approach must be inclusive not exclusive.

5. OBJECTIVES OF SENTENCING

When it comes to pass sentence every court realises that one of its prime objectives is to mark the gravity of the offence, to denounce it, to show society's disapproval of it, and thus in some cases to provide a safety valve which canalises and controls the desire for vengeance enkindled by the offence in the victim. But the value of this punishment objective can be over-stressed. In the 1996 White Paper it was said that:

In most cases no punishment can be imposed because no one has been brought before the court to be sentenced, and that is not because our detection rates as a nation are poor.

A second objective of a court when passing sentence must be, so far as possible, to try to prevent a repetition of the offence, either by the offender in the dock or by others. The court will also want, if possible, to provide recompense for the victim, and in justice to the offender the court must always try to see that comparable offenders are treated in substantially the same way.

6. DOES CUSTODY SATISFY THE OBJECTIVES?

Although it might be thought that a custodial sentence would always meet the first objective of sentencing in that it would demonstrate society's disapproval of the crime, it has often been asserted that the sentences actually imposed are not sufficiently severe. Indeed that would seem to be the only rational justification for part 1 of the 1997 Act which requires the imposition of certain minimum sentences. A sentencer must of course be alive to public opinion, and the statistics do show that in recent years (for example in relation to domestic burglary) sentences have increased, but it is my experience that in almost every case where the media has expressed outrage and indignation a careful look at the circumstances has revealed that the sentence imposed was entirely appropriate. If an irresponsible youth drives too fast and kills a child, the child's parents will understandably regard any sentence as inadequate, and it is difficult to see what good it does to anyone for television or newspaper reporters to seek their comments just after sentence has been imposed. The same applies where, as often happens, a parent is asked to comment on the sentence passed in respect of a sexual offence against a child.

Turning to our second objective, for as long as an offender remains in custody he will probably not be able to commit the type of offence for which he has been sentenced, but in almost every case he will eventually be released, and what then? Will the fact of imprisonment have taught him a lesson, or merely put him in touch with criminals more sophisticated than himself? Many burglars and petty thieves, for example, are young, ill-educated, feckless and inadequate, and hardened criminals often have serious personality defects. It would be nice to think that in prison they will receive much needed basic education and character building support, but at the present time that is unlikely, so the possibility of their experience of prison acting as a deterrent for the future is remote. That is not the way they think, nor is it likely to deter others, who will not even know what has happened to them. Indeed Home Office figures show that the reconviction rate for 17 to 20 year olds, at about 80% within 2 years, is much the same whether or not a custodial sentence is imposed, so it can be argued that a sentence of imprisonment just increases the costs without yielding anything of significance in return.

Certainly anyone sent to prison is unlikely to be in a position to pay any compensation to a victim, but because of the need to demonstrate society's disapproval of the offence, and to keep the balance between one offender and another, the sentencer may often feel obliged to impose a custodial sentence which he knows is unlikely to benefit the offender or anyone else, except to the extent that it keeps the offender out of circulation for a short period of time.

7. ALTERNATIVES TO CUSTODY

Quite apart from those considerations each one of us knows that it is a serious matter to deprive someone else of their liberty. It is necessarily the last resort, and that is still the approach required by Section 1(2) of the Criminal Justice Act 1991 as amended:

Of course the wording of the statute begs the question - when is an offence so serious that only a custodial sentence can be justified? The answer, it has been said by the Court of Appeal, is when it is "the kind offence ... which would make all right thinking members of the public, knowing all the facts, feel that justice had not been done by the passing of any sentence other than a custodial one" (Cox (1992) 14 Criminal Appeal Reports (Sentencing 479)). Note that it is only when he or she knows all the facts that the hypothetical right thinking member of the public can come to a conclusion about whether or not justice has been done.

8. RELEVANT FACTS

What then are the facts which have to be known? First of all there are the circumstances of the offence itself, and its consequences. Some offences, such as murder, armed robbery and rape are clearly very serious. Others, such as manslaughter and causing death by dangerous driving, derive much of their seriousness from an undesired and unintended result. The culpability of the offender will vary considerably having regard to the facts of the case. If during the course of a silly quarrel under severe provocation one old man pushes another so that he falls backwards, hits his head and dies, it may well be possible to think in terms of a non-custodial penalty for the offence of manslaughter, but there will be many cases of manslaughter for which the penalty must be very substantial indeed. In almost any case there will be aggravating or mitigating features also to be considered. A plea of guilty will obviously mitigate, but the extent of the mitigation will vary considerably, depending upon the strength of the prosecution case, the vulnerability of prosecution witnesses, when the plea is offered and what if any degree of remorse is actually involved. The 1997 Act seems to pay scant regard to that. A lack of previous convictions, coupled perhaps with a positively good character, is again a matter to be taken into consideration, but what if any weight should be attached to previous convictions, bearing in mind that no one should be punished twice for the same offence? There may be many other matters to be considered. For example the offence, although grave, may have happened a long time ago. In some circumstances that may be thought to mitigate it. The offender may be young, or female with responsibility for children or elderly parents. Should that be a mitigating factor? Much may depend upon the circumstances of the offence, and necessarily all of those factors inter-relate.

Sometimes an offender may provide valuable information in relation to more serious crimes committed by others. If the information is really valuable that has often resulted in a substantial adjustment to the sentence, not only to reward the informer but also to encourage others who may be minded to assist in a similar way. It is difficult to see how that approach by the courts could be sustained where the mandatory minimum sentence provisions of the 1997 Act have been brought into force.

I do not attempt an exhaustive view of possible mitigating circumstances because that would be impossible, but when all the relevant facts are known the sentencer, and the right thinking member of the public, will necessarily look at any recommendation in the pre-sentence report prepared by the probation officer, or in any medical report, especially if it relates to mental health, and he or she will also look at sentences imposed in other cases. There may be a guide-line decision of the Court of Appeal which will assist, but more often help can be gained by looking at a number of decisions to establish a bracket. This approach, as it seems to me, is what justice demands because, as I have said, comparable offenders should be treated in a comparable way.

9. CONCLUSION AS TO SENTENCE

Thus it is possible to reach a rational conclusion as to the sentence to be imposed in the individual case - whether or not it can be non-custodial, and if it has to be custodial how long it needs to be (save in the exceptional case of murder, for which the sentence is at present fixed by law).

Individual stages in the process by which a conclusion is reached as to the sentence to be imposed can usefully be made the subject of debate. I have hinted at some of the possibilities already, such as whether certain offences are really more serious than others, our approach to women, young offenders and informers, and I do not exclude the guide-line or tariff sentence itself. For example, in a case of rape, it is well known that the starting point in a contested case with a first offender is five years, but why five years rather than, as in some other countries, seven or four? There is nothing self-evidently correct about the figure at which we have arrived, and the same can be said in relation to other crimes.

10. MANDATORY SENTENCES

That brings me to what I regard as the most serious objection of the new legislation requiring in some cases mandatory minimum sentences, namely that it is simplistic and potentially unjust. Without any sufficient regard to the fact that with 63,000 inmates our prisons are already over crowded and acting as it would seem upon the dubious premise that longer sentences reduce crime in ways other than by keeping the individual offender out of circulation for longer, it requires courts to impose sentences which would not otherwise have been imposed because they would not have been considered to be just. Section 2 of the 1997 Act requires that where an offender is convicted of a serious offence, as listed in Section 2 (5), and has previously been convicted of any other offence in the list he must, unless the court finds that there are exceptional circumstances, be sentenced to imprisonment for life. Manslaughter is one of the offences listed, so if the old man who pushed his friend so that he fell and died had been convicted forty or fifty years ago of say intercourse with a girl under 13 (another listed offence) he would now have to be sentenced to life imprisonment unless the court could persuade itself that the circumstances of the manslaughter were exceptional. I am inclined to doubt whether they could be so regarded, although the offence would of course be not a grave offence of its kind. For each of the offences listed in Section 2 (5) the court already has the power to impose a life sentence and that power is exercised where the criteria set out by the Court of Appeal in Hodgson (1968) 52 Criminal Appeal Reports 113 are satisfied, namely where the offence for which the sentence has to be imposed is grave enough to warrant a very long sentence, or (although the instant offence is not particularly grave) it seems that the offender is a person of unstable character likely to commit offences in the future which will have a serious effect on others. If in any given case the Attorney-General considers that a life sentence should have been imposed he can seek leave to refer the case to the Court of Appeal which, if persuaded that he is right can then impose the appropriate sentence (Section 36 of the Criminal Justice Act 1988) and the Attorney-General can also adopt that procedure if he considers that the tariff sentence for the offence in question is too low. The virtue of that approach is that it is selective and seeks to do justice on the facts of the case, but the existence of that remedy for under-sentencing does make it difficult to discern a convincing rationale for the new provisions.

11. PUBLIC MISUNDERSTANDING

My belief, for what it is worth, is that the source of this barren legislation can be found in the way in which and the extent to which the media in recent years has reported violent crime. It has roused emotions, and that sells newspapers, so such reporting receives star billing. The public in general becomes aware of the problem which almost inevitably it considers to be worst than it is. Politicians, desperate for votes, offer an apparently attractive solution - to lock up offenders for even longer - conveniently, for the time being, ignoring the many facets of the problem to which I have already referred. And you and I are left to pick up the bill and make what we can of the result.

The extent of public misunderstanding was well illustrated in a study conducted last year under the auspices of the Nuffield Foundation. It disclosed a public belief that less than half of convicted rapists are sent to prison. In fact the figure is over 90%, and there were similar misconceptions in relation to burglars and muggers. I am inclined to think that that sort of popular misconception will only be made worse if, as proposed, what is said in court has to indicate more clearly than at present the period in custody actually to be served.

12. CONCLUSIONS

Nothing that I have said is intended to indicate that I regard custody as anything other than a vital sentencing option, or that I regard the judiciary as free in the sphere of sentencing to disregard the will of Parliament or public opinion. Quite the reverse. But custody is not a panacea, and I do venture to suggest that there is an urgent need for the public and for parliamentarians to be properly informed and to explore other options with some degree of enthusiasm. The evidence that "prison works", is fragmentary, and, when applied to individual offenders, is frequently unconvincing. The best cure for criminality in an individual in most cases is likely to be the passing of time, because most criminals seem to retire at an early age, under 30% of those sentenced over the age of 40 re-offend within 2 years, but the real focus, as it seems to me, ought to be on crime prevention, and that will be a difficult and expensive long-term job. Where crime prevention fails, and offenders are caught and brought to court we all know what we want to achieve - a sentence which marks the gravity of the crime and, so far as possible, offers hope for the future. So long as a substantial sentence of imprisonment is represented as the only real punishment the value of imprisonment is exaggerated, and too little attention is paid to other possibilities. For example, if a young man who has committed sexual offences against boys agrees to submit himself to a demanding period of therapy in a recognised institution lasting for many months, followed by supervision, there may be persuasive evidence to show that the risk of him re-offending will be reduced. Furthermore if a non-custodial order is made in his and other similar cases the pressures within prisons will be to some extent reduced so that more can be done to help those who have to be there. In one American state serious sex offenders can now be given life time probation, subject to secret surveillance, with what are claimed to be encouraging results. Here in Leeds, as well as in the Thames Valley, very useful work has been done in the sphere of mediation between victims and offenders as a possible alternative to prison. But if every non-custodial order made in relation to a significant offender is greeted with a scream of indignation in the press, echoed by members of Parliament, it will not be surprising if relatively few such orders are made. In 1910 Mr Winston Churchill, as Home Secretary used words which many of you may have heard before:

My fear is that, measured by that test, we have, in the last few years, become less civilised, and we should now try to put things right. I am sure that Frank Dawtry would wish us well in that endeavour.