20 June 1986 - 22 June 1986

Modern Penal Policy in the Light of Shifting Public Opinion

Chair: The Rt Hon the Lord Windlesham CVO PC

The final conference of the 1985-86 conference year on the weekend 20-22 June was on 'Modern penal policy in the light of shifting public opinion'. The chair was taken by Lord Windlesham, the Chairman of the Parole Board, who is also the chairman of the Foundation's Programmes Committee and had played a leading part in promoting and arranging the conference.

Because of the similarities between US and British practice in the administration of criminal law and the differences between their practice and that of other states whose systems of law have very different origins, the conference was almost exclusively British/North American (including two Canadian participants). There was, however, one German participant; and his interventions served to remind the Anglo-Saxons, in their enjoyable preoccupation with detailed analysis of their own systems, that it was possible to have a just and reasonable system outside the Anglo-Saxon tradition. There were eighteen US participants, an unusually high number. The conference tended at times to become something of a “teach-in” as the US and UK experts exchanged information and experience about their penal procedures. Shifting public opinion can hardly be said to have been represented and there was no great disposition to regard it as a qualified interlocutor on penal matters, although its capacity to get in the way of the best intentions of the well-informed was a recurrent theme. In these various ways the conference was a little different from the normal run of Ditchley conferences these days. It was an interesting and stimulating departure from the norm. It was enhanced by the presence of the Home Secretary on the Sunday and of the Solicitor-General throughout the weekend.

The conference considered three main aspects of penal policy, the prosecution process, sentencing principles and procedure, and the interests of the victims of crime. The point was made at an early stage that public opinion had tended to shift and become exigent about penal policy because of the increase in crime and public fear of it. If public security could be better assured, public interest in penal matters might decline, leaving the way clearer for penal reformers. But the conventional means of assuring greater public security, i.e. increased activity by police, prosecutors, courts and other instruments of government, itself gave rise to public concerns about security in the enjoyment of personal liberty. Public opinion demanded contradictory things - protection from criminals and at the same time protection from too much exercise of power by those who pursued criminals. The conference tended to turn away from the stony ground of this dilemma and to dig into the softer soil of actual practice by prosecutors and judges.

There was a fitful inclination to blame the press, TV and radio for sensational reporting and working up popular emotions. There was only one representative of the information media present and he was not from the “popular” press; but he delivered a robust defence on the lines that the press reflected public interest and concern, and the majority sportingly desisted from harrying him further.

As regards the prosecution process, the likely working of the new British prosecution service and the improvements which it would bring received much attention. There was a good deal of discussion of the compatibility of elections of prosecutors and judges in the US with the principle of insulating the prosecution and judicial systems from politics. The Americans saw this as an effective way of letting shifting public opinion have its say, but the British could not contemplate any accountability except to and in Parliament. The American practices of allowing prosecutors and even victims to make recommendations about sentencing, of plea-bargaining, of laying down mandatory or minimum sentences, of giving lengthy sentences but allowing massive remissions were examined, were explained and defended by the Americans, and were judged unsatisfactory by the British. The latter insisted on judges being allowed to judge without their discretion being fettered, except by the normal working of the appeals process. The argument seemed to be that most efforts to control and regulate sentencing tended in the direction of greater, inflexible severity, to appease public opinion anxious about crime. But this did nothing to reduce crime and filled and over-filled the prisons with people whom it did no good to keep there.

There were some dramatic statements about the increase of the prison population and in spending on prisons. There was wide agreement that imprisonment did not improve offenders and ought to be reserved for serious offenders and serious recidivists. There was a need to develop more and better means of dealing with lesser offenders in the community, on condition that means of control and surveillance could be improved. But the problem of getting public opinion to shift in this direction was not seriously tackled.

The subject which many participants found new was that of caring for the interests of victims. It was agreed that improved attention for victims might be a sort of substitute for improving public security and might help to take popular pressure off the penal process. The cost of compensating victims could be prohibitive, but there was nevertheless much which could be done to alleviate their condition. The work in the UK of the National Association of Victim Support Schemes was applauded.

The conference produced little which could be used to influence public opinion, but anyone unfamiliar with penal policy and its problems could not fail to be impressed by the commitment to making penal procedures more fair and reasonable which animated the meeting. The complexity and the arcane nature of the procedures in question make it difficult to square them satisfactorily with the simple and direct impulses of a democratic public. The conference contributed mainly to the education of “expert” opinion through the comparative study of subtle variations in broadly similar approaches to a common problem.

This Note reflects the Director’s personal impressions of the conference.  No participant is in any way committed to its content or expression.

Conference Chairman: The Rt Hon the Lord Windlesham CVO PC
Chairman, The Parole Board; a Governor, Member, Council of Management and Chairman, Programmes Committee, the Ditchley Foundation


The Rt Hon the Lord Ackner PC

A Lord of Appeal in Ordinary; Chairman, Law Advisory Committee, British Council; Hon Member, Canadian Bar Association
Mr K R Ashken
Assistant Director, Director of Public Prosecutions
Dr A J Ashworth
Fellow and Tutor in Law, Worcester College, Oxford; Editor, Criminal Law Review
Professor Anthony Bottoms
Wolfson Professor of Criminology and Director of the Institute of Criminology, University of Cambridge; Fellow, Fitzwilliam College, Cambridge
Sir Brian Cubbon GCB
Permanent Under-Secretary of State, Home Office
Mr David Faulkner CB
Deputy Under-Secretary of State, Home Office
Mr J E Fraser
Under-Secretary, Scottish Home and Health Department (SHHD)
His Honour Judge Donald Herrod QC
A Circuit Judge
Dr Roger Hood
University Reader in Criminology, and Head of the Centre for Criminological Research, University of Oxford; Fellow, All Souls College, Oxford; Visiting Professor, University of Virginia School of Law
The Rt Hon Douglas Hurd CBE MP
Secretary of State for the Home Department; Member of Parliament (Conservative), Witney; a Governor of the Ditchley Foundation
Mr Nicholas Lyell QC MP
(Conservative), Mid Bedfordshire; a Recorder; Barrister-at-law; Parliamentary Private Secretary to Attorney General
Mr Robert Maclennan MP
(Labour) Caithness and Sutherland; Barrister-at-law; Member, Public Accounts Committee of the House of Commons
The Rt Hon Lord Justice May
A Lord Justice of Appeal
The Rt Hon Sir Patrick Mayhew QC MP
Solicitor General; Member of Parliament (Conservative), Tunbridge Wells
The Rt Hon Merlyn Rees MP
(Labour), Morley and Leeds South; Opposition Coordinator of Industry, Energy, Employment and Trade
Ms Helen Reeves OBE
Director, National Association of Victims Support Schemes, London

Mr Graham Smith
Chief Probation Officer, Inner London Probation Service
Mr Clive Soley MP
(Labour), Hammersmith; Opposition Front Bench Spokesman on Home Affairs
Mr David Walker
Social Policy Correspondent and Leader Writer, The Times

Mr John Duggan

Assistant Deputy Minister, Ministry of Correctional Services, Ontario
Mr Frederick Gibson QC
Deputy Solicitor General of Canada

Herr Wilhelm Schneider

Director-General, Federal Ministry of Justice, Head of Division for Criminal Law

Mr Benjamin F Baer

Chairman, United States Parole Commission
Mr Norman A Carlson
Director, Federal Bureau of Prisons, US Department of Justice
The Hon Joyce Cohen
State Senator, Oregon; Oregon Member, Criminal Justice Council
Mr Ronald L Gainer
Associate Deputy Attorney General, US Department of Justice; ex officio Member, United States Sentencing Commission; US Expert Member, UN Commission on Crime Prevention and Control
Professor Abraham S Goldstein
Sterling Professor of Law, Yale Law School
The Hon David W Harwell
Judge of the Supreme Court of South Carolina, Florence, South Carolina; Partner, Harwell & Harwell (Attorneys)
The Hon Norma Holloway Johnson
US District Judge, US District Court for the District of Columbia; Director, Council of Court Excellence
Mr E Michael McCann
District Attorney, Milwaukee County, Wisconsin; Member, Mental Health Standards Task Force, and Member, Committee on Victims, American Bar Association; Member, Board of Directors, National District Attorneys Association; Past President and President-Elect, Wisconsin District Attorneys Association.
The Hon Paul Magnuson
US District Judge, St Paul, Minnesota
Ms Jacqueline McMickens
Commissioner, New York Department of Correction
Professor Norval Morris
Julius Kreeger Professor of Law and Criminology, University of Chicago; Vice-President, National Institute of Corrections; Member, Research Advisory Board, Federal Bureau of Prisons.
The Hon A Victor Rawl
Member (Democrat), South Carolina House of Representatives for District No 119, Charleston County; Attorney-at-law
Mr Ramon J Rodriguez
Chairman and Chief Executive Officer, New York State Board of Parole
Mr Michael E Smith
Director, Vera Institute of Justice; Chairman, Corrections Panel, New York State Project 2000; Member, New York State Sentencing Guidelines Committee
Professor Ernest van den Haag
John M Olin Professor of Jurisprudence and Public Policy, Fordham University; Distinguished Scholar, the Heritage Foundation
Dr Charles F Wellford
Director, Institute of Criminal Justice and Criminology, University of Maryland; Executive Secretary, American Society of Criminology.
The Hon Jeff Wells
State Senator (Republican), Colorado for Senate District 11; Vice Chairman, Health, Environment, Welfare Institutions Committee and Finance Committee; Member, Colorado Commission on Aging, EPC Intensive Supervision Task Force; Partner, Wilder, Wells & Larimer (Attorneys)
Ms Barbara R Williams
Director, Criminal Justice Program, and Head, Behavioral Sciences Department, The Rand Corporation, Santa Monica, California