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What price justice?
It was reported in the news a couple of days ago that a super complaint has been lodged against the police in England and Wales in respect of their handling of sexual offence cases (The Guardian 15.12). Not long before that article was published, another gave us the news that prisoners have erroneously been released from prison (BBC 5.11). These stories sandwiched another, that concerning the abolition of trial by jury for offences attracting anything less than three years imprisonment (BBC 02.12). The rationale behind these proposals is the reduction of the appalling backlog of court cases awaiting trial.
These stories beg the very simple question what an earth is going on with the criminal justice system? To say it is in crises would be an understatement. The system is broken, and it is hard to see how it can be fixed but perhaps it isn’t difficult to see how it got into its present state.
The justice process is complex and above all else, for it to work effectively, it is costly and by its very nature, it is inefficient. And this has presented problems for successive governments over decades. The conundrum, how to deliver a cost effective, efficient criminal justice system. Put simply the mantra seems to have been how do you achieve cheap justice?
The various components of the criminal justice system are interdependent, when one part fails, it has a knock-on effect to the others. Each part of the criminal justice system has seen so called efficiency and economy drives over the decades, and the consequence has been a cut in service across the board.
How many times do we hear complaints that the police just don’t turn up when a crime is reported or that they are disinterested? But have a look at the sustained cuts in budgets, the burgeoning costs of policing as the social and technological worlds change around us and the constant reprioritising of policing efforts and, it is little wonder that there is no one to turn up or that the crime you are reporting just isn’t important enough. Or maybe the people that do the policing are simply just worn out, disenchanted and frustrated by a system that fails their efforts at every turn. They even conspire to fail themselves.
And what of the Crown Prosecution Service (CPS)? Understaffed and under crude directions to enforce tests and codes to minimise court cases as best they can. With a little bit of research, you can find complaints against the CPS relating to the changing of the threshold in relation to sexual offences. To some extent CPS lawyers act as judge and jury before a defendant is even charged. Economic perhaps, effective, no. This has a knock-on effect to the police who then pre-empt that decision making. No point in sending a file to the CPS just to see it knocked back. The CPS must of course also have a mind to the backlog in the courts, no point sending a case there if it won’t be heard for months, if not years on end. And then the courts. The consistent closure of courts, both magistrates and crown over the years beggars belief. There is no local justice now, if you are defendant, witness or victim, you will be travelling miles to get to the allotted court. And if you do make it, the chance of your case being heard on that day is a lottery. As for legal aid, a pipe dream. Defendants in court trying to defend themselves and having to be assisted by the court clerk because quite frankly, they do not have a clue. But then who would? All of this presupposes the case gets to court in a timely fashion. You try remembering what happened 3 years ago when cross examined by a solicitor or barrister.
And prisons, well, overcrowded, understaffed and failing to provide anything but the basics, if that. Many a report suggests a crumbling prison estate and inhumane conditions within prisons. There has to be something fundamentally wrong with a system that allows prisoners to walk out the gates and then sees vast sums of money and resource poured into trying to find them. Efficient, or effective, not really. As for rehabilitation, don’t even bother thinking about it.
And what of you and I, the public? What faith do you have in the criminal justice system? Is it little wonder that victims will not report crimes, and if they do, they quickly lose interest in supporting a prosecution. If the police rely on the public to help them investigate cases, what hope have they got if the public have no faith in them or the rest of the system?
The problem with successive governments is that they have been too keen to cut costs without understanding or caring about the impact. And they are too quick to judge when things go wrong, pointing the finger anywhere but at themselves. They fail to see the system as a whole; they just seem to fail to see.
Justice costs money. Cutting cases that can go to trial by jury simply displays a lack of interest in justice or incompetence in governing or perhaps both. A government that fails to deliver justice for its citizens is failing in its fundamental duty as a government. The problem is, it’s not only this government that has failed us; the failures go a long way back and any attempt to fix the issues requires a fundamental shift in policy and a significant injection of public money that is just not available. Well, that’s what they will have us believe anyway.
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What cost justice? What crisis?
The case of Andrew Malkinson represents yet another in the long list of miscarriages of justice in the United Kingdom. Those that study criminology and those practitioners involved in the criminal justice system have a reasonable grasp of how such cases come about. More often than not it is a result of police malpractice, negligence, culture and error. Occasionally it is as a result of poor direction in court by the trial judge or failures by the CPS, the prosecution team or even the defence team. The tragic case of Stefan Kiszko is a good example of multiple failures by different bodies including the defence. Previous attempts at addressing the issues have seen the introduction of new laws such as the Police and Criminal Evidence Act 1984 and the Criminal Procedure and Investigations Act 1996. The former dealing in part with the treatment of suspects in custody and the latter with the disclosure of documents in criminal proceedings. Undoubtedly there have been significant improvements in the way suspects are dealt with and the way that cases are handled. Other interventions have been the introduction of the Crown Prosecution Service (CPS), removing in part, charging decisions from the police and the introduction of the Criminal Cases Review Commission (CCRC) to review cases where an appeal has been lost but fresh evidence or information has come to light.
And yet, despite better police training regarding interviews and the treatment of suspects, better training in investigations as a whole, new restrictive laws and procedures, the independence of the CPS, the court appeal system and oversight by a body such as the CCRC, miscarriages of justice still occur. What sets the Malkinson case aside from the others appears to be the failure of the CCRC to take action on new information. The suggestion being that the decision was a financial one, with little to do with justice. If the latter is proved to be true, we will of course have to wait for the results of the inquiry, then how can anyone have any confidence in the justice system?
Over the years we have already seen swingeing cuts in budgets in the criminal justice system such that the system is overloaded. Try to pop into the local police station to make a complaint of a crime, you won’t find a station open to the public. Should you have been unfortunate enough to have been caught for some minor misdemeanour and need to go to magistrates’ court for a hearing, you’ll be lucky if you don’t have to travel some considerable distance to get there, good luck with that if you rely on public transport. Should you be the victim of a more serious crime or indeed charged with a more serious offence, triable in crown court, then you’ll probably wait a couple of years before the trial. Unfortunate if you are the alleged offender and on remand, and if you are the victim, you could be forgiven for deciding that you’d rather put it all behind you and disengage with the system. But even to get to that stage, there has to be sufficient evidence to secure a prosecution and it has to be in the public interest to do so. Your day in court as a victim is likely to be hang on the vagaries of the CPS decision making process. A process that has one eye on the court backlog and another on performance targets. Little wonder the attrition rate in sex offences is so high. Gone are the days of letting a jury decide on occasions where the evidence hangs on little more than one person’s word against the other.
Andrew Malkinson and his legal representative have called for a judicial review, a review where witnesses can be compelled to attend to give evidence and documentary evidence can be demanded to be produced. Instead, the government has said there will be an independent inquiry. On a personal note, I have little faith in such inquiries. My experience is that they are rarely independent of government direction and wishes. Andrew Malkinson’s case is a travesty and the least that can be done is to have a proper inquiry. I suspect though that the Malkinson case might just be the tip of the iceberg. The Criminal Justice System is in crisis but budgetary restraint and political whim seem to be far more important than justice. We can look forward to more finger pointing and yet more reorganisation and regulation.
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Do we have to care?
In recently published The end-to-end rape review report on findings and actions the responsible minister admitted that “victims of rape [are] being failed”. This stark admission is based on data that indicates that the current situation on dealing with rape is far worst than 5 years ago. The ministers are “ashamed” of the data but luckily in their report they offer some suggestions on how to improve things; what to do to bring the conviction rates to the 2016 level and to move more cases forward for trial, leading to successful convictions. At that point, the report presents the Criminal Justice System [CJS] as a singular entity that needs to address the issue collectively. This, in part, is a fair assessment although it ignores the cultural differences of the constituent parts of the system. Nonetheless, the government has identified a problem, commissioned a report and has a clear “ambitious” plan of how to address it.
The report indeed presents some interesting findings and I urge people to review it whenever they can (https://www.gov.uk/government/publications/end-to-end-rape-review-report-on-findings-and-actions). We know for example already that the number of cases that went into prosecution were low; in the last years this has become even lower. That despite the prevalence rate remaining more or less the same. Victims report that they are treated poorly, not believed arguing that the investigative model needs changing. No wonder the ministers appear apologetic of the situation. A headline crime category that is likely to cause an uproar and whilst thinking of the political fallout they come out in support of the victims! Who wouldn’t? Supporting a victim of crime, any crime is one of the main objectives of the CJS; once they have handed out retribution and prioritised on making an example of specific crimes and focusing on particular criminals, then their focus is on the victims! The findings were expected, but even so when reading about the higher vulnerability of disabled women to rape and sexual abuse, underscores the systemic failure to deal with this crime. It does not read like care!
If I was an agitator, I would say that a criminal committing rape has less chance (statistically) to be convicted than someone who commits theft; but then I will be making a criminological cardinal sin; conflating criminalities and confusing the data. In our profession we deal with data all the time. Many of them come in the form of metrics looking at the way different crimes are reported, recorded etc. We also know that context gives a perspective to these data. Numbers may look the same, but that is arguably part of the problem. It does not take into account the source of the data and their circumstances. Not all numbers are the same and most importantly they do not measure similar trends. The way the success rates are to be measured is not dissimilar from before and without owning a magic ball, it can be foreseen that rape will remain as is. Of course, the metrics may change colour to signal improvement, but that will not alter the fundamental issues.
On the day, one may have their car broken into, to report the incident can be a requirement from their insurance if they are to cover the cost. On the day, the said person got raped by a current/former partner the matter is not about insurance. These acts are not similar and to treat criminality as a singularity draws up uneven comparisons. In this case we have a list of recommendations trying to ameliorate the bad metrics. What are the recommendations? The focus is again on the police and the Crime Prosecution Service [CPS] and the court experience the victims will have. Again, indicates that these institutions have been criticised before for similar failings. The change of practices in the police does not go as far as exploring the institutional culture. The CPS’s requirement to do more is tied with the successful cases they will prosecute. The need for the two organisations to work together more closely has been a discussion point for the last 20 years; as for the better experience in courts, it is definitely welcomed but in recent years, Victim Support as an organisation was stripped bare, the additional services cut and the domestic violence shelters disappearing. The call for more services was continuously met with the offer of voluntary organisations stepping in, into such a complex area to provide help and support. One may think that if we are to prioritise on victim experience these services may need to become professional and even expand the current ones.
Lastly in this document the tone is clear; the focus yet again is reactionary. We have some bad data that we need to change somehow; we have got some clear action plans and we can measure them (as the report intimates) at regular times. This approach is the main problem on dealing with rape! It does not offer any interventions prior to the crime. There is nothing to deal say with rape culture, the degradation of women, the inequality and the rape myths that women are still subjected to. Interestingly there are mention of empathy toward the rape victim but there is not a plan to instil empathy for people more widely. No plan to engage the educational system with respect for the other (whoever the other is; a woman, a person of colour, disability, different origin) regarding sexual behaviours. The report tenuously mentions consent (or lack of understanding it) instead of making plans how it can be understood across. Unfortunately, this crime reveals the challenges we face in the discipline but also the challenges we face as a society that has traded care for metrics and the tyranny of managerialism.
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What price justice?
Having read a colleague’s blog Is justice fair?, I turned my mind to recent media coverage regarding the prosecution rates for rape in England and Wales. Just as a reminder, the coverage concerned the fact that the number of prosecutions is at an all-time low with a fall of 932 or 30.75% with the number of convictions having fallen by 25%. This is coupled with a falling number of cases charged when compared with the year 2015/16. The Victims’ Commissioner Dame Vera Baird somewhat ironically, was incensed by these figures and urged the Crown Prosecution Service to change its policy immediately.
I’m always sceptical about the use of statistics, they are just simple facts, manipulated in some way or another to tell a story. Useful to the media and politicians alike they rarely give us an explanation of underlying causes and issues. Dame Vera places the blame squarely on the Crown Prosecution Service (CPS) and its policy of only pursuing cases that are likely to succeed in court. Now this is the ironic part, as a former Labour member of parliament, a minister and Solicitor General for England and Wales, she would have been party to and indeed helped formalise and set CPS policy and guidelines. The former Labour Government’s propensity to introduce targets and performance indicators for the public services knew no bounds. If its predecessors, the Conservatives were instrumental in introducing and promulgating these management ideals, the Labour government took them to greater heights. Why would we be surprised then that the CPS continue in such a vein? Of course, add in another dimension, that of drastic budget cuts to public services since 2010, the judicial system included, and the pursuit of rationalisation of cases looks even more understandable and if we are less emotional and more clinical about it, absolutely sensible.
My first crown court case involved the theft of a two-bar electric fire. A landlady reported that a previous tenant had, when he moved out, taken the fire with him. As a young probationary constable in 1983, I tracked down the culprit, arrested him and duly charged him with the offence of theft. Some months later I found myself giving evidence at crown court. As was his right at the time, the defendant had elected trial by jury. The judicial system has moved a long way since then. Trial by jury is no longer allowed for such minor offences and of course the police no longer have much say in who is prosecuted and who isn’t certainly when comes to crown court cases. Many of the provisions that were in place at the time protected the rights of defendants and many of these have been diminished, for the most part, in pursuit of the ‘evil three Es’; economy, effectiveness and efficiency. Whilst the rights of defendants have been diminished, so too somewhat unnoticed, have the rights of victims. The lack of prosecution of rape cases is not a phenomenon that stands alone. Other serious cases are also not pursued or dropped in the name of economy or efficiency or effectiveness. If all the cases were pursued, then the courts would grind to a halt such have been the financial cuts over the years. Justice is expensive whichever way you look at it.
My colleague is right in questioning the fairness of a system that seems to favour the powerful, but I would add to it. The pursuit of economy is indicative that the executive is not bothered about justice. To borrow my colleague’s analogy, they want to show that there is an ice cream but the fact that it is cheap, and nasty is irrelevant.
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CRCs: Did we really expect them to work?
For those of you who follow changes in the Criminal Justice System (CJS) or have studied Crime and Justice, you will be aware that current probation arrangements are based on the notion of contestability, made possible by the Offender Management Act 2007 and fully enacted under the Offender Rehabilitation Act 2014. What this meant in practice was the auctioning off of probation work to newly formed Community Rehabilitation Companies (CRCs) in 2015 (Davies et al, 2015). This move was highly controversial and was strongly opposed by practitioners and academics alike who were concerned that such arrangements would undermine the CJS, result in a deskilled probation service, and create a postcode lottery of provision (Raynor et al., 2014; Robinson et al., 2016). The government’s decision to ignore those who may be considered experts in the field has had perilous consequences for those receiving the services as well as the service providers themselves.
Picking up on @manosdaskalou’s theme of justice from his June blog and considering the questions overhanging the future sustainability of the CRC arrangements it is timely to consider these provisions in a little more detail. In recent weeks I have found myself sitting on a number of probation or non-CPS courts where I have witnessed first-hand the inadequacies of the CRC arrangements and potential injustices faced by offenders under their supervision. For instance, I have observed a steady increase in applications from probation, or more specifically CRCs, to have community orders adjusted. While such requests are not in themselves unusual, the type of adjustment or more specifically the reason behind the request, are. For example, I have witnessed an increase in requests for the Building Better Relationships (BBR) programme to be removed because there is insufficient time left on the order to complete it, or that the order itself is increased in length to allow the programme to be completed[1]. Such a request raises several questions, firstly why has an offender who is engaged with the Community Order not been able to complete the BBR within a 12-month, or even 24-month timeframe? Secondly, as such programmes are designed to reduce the risk of future domestic abuse, how is rehabilitation going to be achieved if the programme is removed? Thirdly, is it in the interests of justice or fairness to increase the length of the community order by 3 to 6 month to allow the programme to be complete? These are complex questions and have no easy answer, especially if the reason for failing to complete (or start) the programme is not the offenders fault but rather the CRCs lack of management or organisation. Where an application to increase the order is granted by the court the offender faces an injustice in as much as their sentencing is being increased, not based on the severity of the crime or their failure to comply, but because the provider has failed to manage the order efficiently. Equally, where the removal of the BBR programme is granted it is the offender who suffers because the rehabilitative element is removed, making punishment the sole purpose of the order and thus undermining the very reason for the reform in the first place.
Whilst it may appear that I am blaming the CRCs for these failings, that is not my intent. The problems are with the reform itself, not necessarily the CRCs given the contracts. Many of the CRCs awarded contracts were not fully aware of the extent of the workload or pressure that would come with such provisions, which in turn has had a knock-on effect on resources, funding, training, staff morale and so forth. As many of these problems were also those plaguing probation post-reform, it should come as little surprise that the CRCs were in no better a position than probation, to manage the number of offenders involved, or the financial and resource burden that came with it.
My observations are further supported by the growing number of news reports criticising the arrangements, with headlines like ‘Private probation firms criticised for supervising offenders by phone’ (Travis, 2017a), ‘Private probation firms fail to cut rates of reoffending’ (Savage, 2018), ‘Private probation firms face huge losses despite £342m ‘bailout’’ (Travis, 2018), and ‘Private companies could pull out of probation contracts over costs’ (Travis, 2017b). Such reports come as little surprise if you consider the strength of opposition to the reform in the first place and their justifications for it. Reading such reports leaves me rolling my eyes and saying ‘well, what did you expect if you ignore the advice of experts!’, such an outcome was inevitable.
In response to these concerns, the Justice Committee has launched an inquiry into the Government’s Transforming Rehabilitation Programme to look at CRC contracts, amongst other things. Whatever the outcome, the cost of additional reform to the tax payer is likely to be significant, not to mention the impact this will have on the CJS, the NPS, and offenders. All of this begs the question of what the real intention of the Transforming Rehabilitation reform was, that is who was it designed for? If it’s aim was to reduce reoffending rates by providing support to offenders who previously were not eligible for probation support, then the success of this is highly questionable. While it could be argued that more offenders now received support, the nature and quality of the support is debatable. Alternatively, if the aim was to reduce spending on the CJS, the problems encountered by the CRCs and the need for an MoJ ‘bail out’ suggests that this too has been unsuccessful. In short, all that we can say about this reform is that Chris Grayling (the then Home Secretary), and the Conservative Government more generally have left their mark on the CJS.
[1] Community Orders typically lasts for 12 months but can run for 24 months. The BBR programme runs over a number of weeks and is often used for cases involving domestic abuse.
References:
Davies, M. (2015) Davies, Croall and Tyrer’s Criminal Justice. Harlow: Pearson.
Raynor, P., Ugwudike, P. and Vanstone, M. (2014) The impact of skills in probation work: A reconviction study. Criminology and Criminal Justice, 14(2), pp.235–249.
Robinson, G., Burke, L., and Millings, M. (2016) Criminal Justice Identities in Transition: The Case of Devolved Probation Services in England and Wales. British Journal of Criminology, 56(1), pp.161-178.
Savage, M. (2018) Private probation firms fail to cut rates of reoffending. Guardian [online]. Available from: https://www.theguardian.com/society/2018/feb/03/private-firms-fail-cut-rates-reoffending-low-medium-risk-offenders [Accessed 6 July 2018].
Travis, A. (2017a) Private probation firms criticised for supervising offenders by phone. Guardian [online]. Available from: https://www.theguardian.com/society/2017/dec/14/private-probation-firms-criticised-supervising-offenders-phone [Accessed 6 July 2018].
Travis, A. (2017b) Private companies could pull out of probation contracts over costs. Guardian [online]. Available from: https://www.theguardian.com/society/2017/mar/21/private-companies-could-pull-out-of-probation-contracts-over-costs [Accessed 6 July 2018].
Travis, A. (2018) Private probation firms face huge losses despite £342m ‘bailout’. Guardian [online]. Available from: https://www.theguardian.com/society/2018/jan/17/private-probation-companies-face-huge-losses-despite-342m-bailout [Accessed 6 July 2018].
Thoughts from the criminology team 