Radical reforms are now needed. No government is likely to have the political capital to attempt them until Brexit has been resolved, but David Faulkner argues that this is the time to prepare the ground
After a period of relative calm, crime and the country’s response to it are again in the news and the inadequacy of that response, and failings in the criminal justice process, are again becoming evident. Most commentators agree that the recent rise in violent crime cannot be attributed, or cannot be attributed entirely, to failures in law enforcement. But prisons and probation seem to be in a worse state than they have been in living memory, reports of failure in the processes of investigation and prosecution seem to be a daily event, and the prosecution and sentencing of John Worboys and his intended release on parole have again revealed the depth of the confusion and ambiguity which lie at the heart of the criminal justice process.
That confusion has been festering for a long time. Successive (but mainly Conservative) governments introduced a series of measures during the last third of the twentieth century to prevent and reduce crime, support and protect victims, rehabilitate offenders, co-ordinate the work of the different criminal justice services, and promote fairness and consistency in sentencing and the administration of justice. They had some success - crime fell significantly during the last 25 years and important improvements were made in many aspects of the criminal justice process - but tensions and ambiguities emerged when other political and managerial considerations began to intrude. They included at various times the need to control the size of the prison population, the wish to give victims a ‘voice’ as well as support, and successive governments’ need to show that they were ‘doing something’, usually with politically ‘easy’ solutions such as legislation to create new criminal offences or for longer or compulsory sentences, administrative reorganisation or privatisation.
With little or no parliamentary debate probation was converted from a system of support and rehabilitation for offenders to one of punishment and coercion, and parole was transformed from a means of reforming individuals to one of protecting the public. Both changes were driven more by political ideology and expediency than by any serious consideration of the implications or consequences, neither achieved the benefits which were claimed for them, and the change in probation was followed by the disaster of privatisation for a large part of the service. Slogans such as ‘protecting the public’ and ‘putting the victim at the heart of the criminal justice system’ served a political purpose but it was not clear what they meant in practice and they led for example to the notorious Indeterminate Sentences for Public Protection (now abolished, although their effects remain for the thousands of offenders who received those sentences and are still in prison).
One well-known consequence was to double the size of the prison population, which in turn led to the present crisis of management and control. Another consequence was to complicate the sentencing framework with an array of compulsory and indeterminate sentences, guidelines and potentially conflicting (and in practice meaningless) statutory purposes. A third was the progressive loss of ‘truth in sentencing’ so that the sentence pronounced in court now has little resemblance to the time which the offender will serve in prison. Many practitioners and most reformers agree on the changes that are needed in the treatment of children and the age of criminal responsibility, in the treatment of women, and the definition and penalty for murder, but have been unable to overcome the political resistance or inertia of successive governments. The effects of austerity – on national and local government, on statutory and voluntary services – may be disputed but it has undoubtedly affected neighbourhood policing and the prevention of crime, the efficiency of the courts and sometimes the quality of their conclusions, conditions in prisons and the quality of offenders’ rehabilitation. The present situation has been well described in successive reports from the House of Commons Justice Committee and the Inspectorates of Prisons and Probation.
Taken together, the changes (or the lack of them when they have been needed) have created a constant state of turbulence, uncertainty and anxiety among those who have to make the system work. There remains a deep seated ambiguity about what law enforcement, sentencing and penal treatment are supposed to or can realistically be expected to achieve, and uncertainty about the most suitable arrangements for their governance and accountability. The uncertainty extends to the relationship between the courts, government and Parliament in democracy where truth can be treated as a matter of sensibility, evidence as a matter of opinion and justice as a matter of public safety. Some would say that the situation requires at least a Royal Commission and it is hard to see how anything less would meet the case, but neither the present nor any immediately foreseeable government is likely to agree to that. Nor would government, Parliament or the political parties have the administrative capacity or political capital to devote to a Royal Commission’s conclusions so long as they are preoccupied with Brexit and its consequences.
Conscientious public servants will continue do their best to ‘keep the show on the road’ and the government may try to repair some of the worst potholes, but otherwise the prospect is that courts and the criminal justice services will have to press on as best they can, to hope that further disasters can be avoided, and to look forward to the more radical reforms that must be inevitable when the distraction of Brexit has passed. In the meantime professional leaders, practitioners, interest groups, opinion formers and academics might start to formulate and think through the principles they want to protect and the reforms which they would seek when the time comes.
Some possible subjects are these:
- What do people mean by the expression ‘justice has (or has not) been done’? What conditions have to be satisfied in order to say that it has?
- What do people mean by the ‘effectiveness of sentencing’? How can it be demonstrated, measured or increased? Do those questions make sense?
- Is it realistic or desirable to aim for more ‘truth in sentencing’?
- What is meant by saying that the system needs be ‘rebalanced’ in the interests of, for example, victims, women or minorities?
- In what respects and to what extent should that be done?
- With cuts in legal aid and pressure on police and prosecution resources, can the principle of ‘equality of arms’ still be said to apply?
- Is it realistic or desirable to make reducing the prison population an objective of government policy? If so, how could it be achieved?
- In what circumstances, if any, and subject to what principles or conditions, is it justifiable to extend a person’s period of imprisonment or to restrict their lives in order to ‘protect the public’ or to satisfy public opinion or the victim? Or to reduce it? Who should make the decision?
- What have been the effects of management reforms for criminal justice outcomes? Are targets sensible or legitimate? Where and how should they be used? Is ‘the market’ a suitable model? How can resilience and creativity best be encouraged and rewarded?
- What principles and what rules should govern the use of commercial contractors or voluntary organisations in the administration of justice or the provision of services?
- What principles and what rules should govern the use of technology, algorithms and artificial intelligence?
- What new evidence or insights might help to get those questions taken seriously?
The questions could be formulated in different ways and more could be added. Some questions, such as the purpose of punishment, have been debated for ever and no definitive answers can ever be given. But there are others which need to be answered if the state’s use of its powers is to be intelligible, coherent, accountable and legitimate. The answers taken together should provide a sense of direction and purpose which could inform policy and professional practice and give hope for the future.
David Faulkner is a former Home Office civil servant and associate of the University of Oxford Centre for Criminology.