At a private briefing, the Lord Chief Justice revealed his fears about England's prison crisis. A transcript of the meeting, obtained by The Observer, shows how deep the fault lines run
He is Britain's most senior judge, whose highly nuanced views help define and shape the fabric of the law. But despite his exalted position at the head of the judiciary, Lord Phillips, the Lord Chief Justice, rarely shares his thoughts in public, aware that to do so risks a high-profile clash with the government.
However, behind the public facade, The Observer can reveal that Phillips harbours serious concerns about the sentencing regime. He fears that prisoners are in danger of being locked up 'indefinitely' as a result of a media clamour for tougher penalties, and that prisons will face 'serious disciplinary problems' controlling inmates and a constant fight against the ever-increasing stresses of overcrowding. In a private speech to MPs and peers, the minutes of which have been obtained by The Observer, Phillips attacked the Criminal Justice Act 2003 for placing further pressures on a prison system that, according to figures released on Friday, is at record levels.
It is highly unusual for the Lord Chief Justice to share his criticisms of legislation with politicians. The fact he has done so suggests the gravity of his reservations over how the act is affecting those involved in sentencing and public protection.
Relations between government and bench have plunged to a new low, following a week of increasingly rancorous debate over the interpretation of sentencing policy. Last week the Home Secretary, John Reid, criticised a judge's decision to recommend that a paedophile, Craig Sweeney, serve a minimum sentence of five years and 108 days before being considered for parole and called for the Attorney General to refer the case to the Court of Appeal.
His attack followed a 'name and shame' campaign by the Sun newspaper against judges it believes are too liberal. The Observer understands that Lord Falconer, the Secretary of State for Constitutional Affairs, was forced to rise to the defence of judges last week because of fears that Phillips was preparing openly to attack the Home Secretary, something that would have threatened a constitutional crisis.
And last night Reid upped the populist stakes dramatically by promising to study the so-called 'Megan's Law' operating in the US, which gives parents the right to know if a paedophile is living nearby.
Calls from Sara Payne, whose eight-year-old daughter Sarah was murdered in Sussex in 2001, for a similar law to be introduced in Britain were rejected by previous home secretaries for fear of triggering vigilante attacks on released sex offenders. But Reid told the News of the World newspaper today he believed that 'information should no longer remain the exclusive preserve of officialdom'. He is promising to send a junior minister, Gerry Sutcliffe, to America to observe the law in practice.
Even before this intervention, it was clear Phillips was worried about the government's direction. In the behind-closed-doors briefing to the All-Party Parliamentary Penal Affairs Group earlier this year, Phillips said the 2003 Act had created new pressures for 'both the parole board and the probation service' by allowing a populist agenda to potentially skew the judicial process.
Under the Act, introduced by David Blunkett, offenders are eligible for release as early as halfway through their custodial sentence, subject to approval by the parole board. Previously, offenders were automatically paroled after two- thirds of their sentence. Phillips said the act created a 'new regime' under which parole boards were increasingly reluctant to approve a prisoner's release, owing to the public furore following a series of high-profile murders by offenders freed under licence.
The murder of Naomi Bryant by Anthony Rice and the killing of John Monckton by Damien Hanson have created a sense of unease that focused attention on parole boards. Both killers were out on licence.
'Risk assessment in relation to a prisoner who has spent a lengthy period in prison, or indeed a short period, is no easy matter,' Phillips told the committee. 'It is inevitable that some who are released will reoffend. There is a danger that such media coverage will lead to an approach of playing safe that will leave indefinitely imprisoned men, and some women, who have served their penal terms and who do not in reality pose a risk, because of the difficulty in being satisfied that this is the case.
'This, in turn, will cause capacity problems in the prisons and lead to serious disciplinary problems for those who run the prisons.'
Phillips also raised concerns the act was being used to hold dangerous offenders in prisons 'not simply by way of punishment, but in order to safeguard society from the risk that they pose, when many of these would be better detained in mental hospitals'.
Phillips gave the speech just over two months ago, but criminal justice experts said his views hold even greater resonance now, with politicians and judges on a collision course over sentencing.
'There is real need to ensure that justice remains at the heart of our criminal justice system and that it is not undermined by populist punitive responses,' said Enver Solomon, deputy director of the Centre for Crime and Justice Studies.
'When the Lord Chief Justice warns of potential injustices, with people being left in custody indefinitely when they no longer pose a risk, he should not be ignored.'
Last week the Prime Minister boasted that over the past year more than 1,000 offenders had been imprisoned without a fixed release date under new 'public protection sentences'. But Phillips warned the committee that such sentences are being imposed for 'comparatively trivial offences'.
The row comes at a crucial time for the prison system, with campaigners claiming that it is close to meltdown. On Friday the Prison Reform Trust (PRT) claimed Britain's prison population was at a record level, with 77,785 people now in jail.
'It is time for the Home Secretary to ask whether prisons can really be "fit for purpose" if he carries on allowing them to be used as social dustbins for petty offenders, the mentally ill and drug addicts,' said Juliet Lyon, its director.
The foreign prisoners debacle has led to further pressures. Hundreds of foreign nationals are being held in British prisons, despite having served their sentence, because they have yet to be considered for deportation. In Walton prison in Liverpool there are 20 foreigners awaiting a deportation decision.
'This is a massive problem for the government, of its own making; the whole justice system is close to bursting point,' said Harry Fletcher, assistant general secretary of the National Association of Probation Officers.
Home Office sources meanwhile said a planned shake-up of probation services, due to be announced this month, and which would see private firms brought in to take over the supervision of some cases, had been shelved because of turmoil within the government.
Insiders say Reid has decided he cannot fight that battle while trying to deal with the sentencing and foreign prisoners crises. 'The offender management bill does not appear to exist any more,' one official said. 'It seems [Reid's] priorities are elsewhere.'
Reid will try to regain the initiative with a series of announcements on security and law and order later this month. Two weeks ago he summoned every department head in the Home Office to an urgent meeting. 'He told them he wanted "quick wins" to help restore morale,' said one person present at the meeting.
Tony Blair will make a speech next week in Bristol on law and order, including a 'rebalancing' of the criminal justice system and the weight given to human rights considerations.
However, the Tories launched a fresh line of attack yesterday, seizing on a disclosure under the freedom of information laws reported in the Yorkshire Evening Post that prisoners at Wakefield high-security prison had gained access to pornographic DVDs involving children.
In a letter to Reid, the shadow Home Secretary, David Davis, demanded that the sentencing review now under way look also at how effective jail sentences are: 'It is not just the length of the sentence that is important. It is also the effectiveness in terms of security, punishment, deterrence, training and rehabilitation - clearly these press reports describe activities that, if true, would undermine all of these aims.'