In response to the declaration by Justice Secretary Alex Chalk
#justice #prison
Convicted rapists will spend the 'entirety' of their sentence behind bars, promised Justice Secretary Alex Chalk earlier this month. He vowed to bring to an end the possibility of early release for people convicted of the most serious sexual offences. He went on to say: 'We will ensure rapists spend the entirety of their sentence in prison – so that victims get the justice they deserve and the British people are protected. No longer will the perpetrators of this heinous crime walk out of prison after even two-thirds of their sentence.'
He added: 'A 15-year sentence will mean 15 years in prison. 'This is the justice that the British people expect, and we will deliver it.'
As someone who has weathered the fog of the criminal courts, my fear however is that our criminal justice system bears little resemblance to what we understand by criminal justice, and that defendants, victims and, ultimately, society are being failed by a disregard for the fundamental principles of fairness. More, that we are moving from a criminal justice system to simply a criminal system.
Should we be tough on sex or violent offences. Yes, absolutely and without doubt. Any survey of the population agrees. A more recent survey of over 2,000 adults across a wide spectrum of society on behalf of the House of Commons Justice Committee[1] confirmed the same. However, emphasis was on tougher sentences for sexual and violent offences, quite rightly, and alternative punishment possibilities for non-violent offenders. This may all seem quite appropriate but getting tough on crime has always been a political ploy as much if not more than being the best way to tackle the problem of criminal behaviour.
A few quick facts:
·??The UK has the highest reoffending rate in Europe and one of the highest in the world overall
·??We spend ￡47,000 per year per prisoner to maintain their prison place; and that is for a standard prisoner. High risk prisoners, sex offenders, and young offenders can be more. With over 86,000 people in prison in 2023, and that number rising every year, we spend over ￡4 billion of taxpayer money every year. That makes it more than simple justice or even political ploy, it makes it very big business
·?Prisons are severely overcrowded and not the holiday camps people may imagine them to be
If someone rapes your child or indeed someone of any age, the offender if found guilty ought to be severely punished and the public protected. Few would argue with that. If someone breaks into your home while you and your family are inside, perhaps sleeping, and they threaten or commit violence, or are even just armed in case, few would argue too that the convicted offenders should be severely punished. And if that offender is a repeat offender, has a history of such criminal disregard, it ought to be most harsh. Again, few would disagree. But before any progress can be made, and taking a non-political stance, counter-viewpoints must be considered.
And whilst such opposing viewpoints do not in any way excuse the guilty or the need for convicted offenders to suffer some form of punishment or the need to deter them from repeat offending, as well as to motivate them to make better choices in future, nevertheless what is happening in courts today is not justice. It is not, as the Criminal Procedure Rules proudly proclaim to be their ‘overriding objective’, acquitting the innocent and convicting the guilty. It’s getting numbers through the door and out again, as inexpensively and swiftly as possible. It is roulette framed as justice; and it is in these conditions that 94 per cent of our criminal justice is taking place[2].
Walk into any criminal court in the land, speak to any lawyer or ask any judge, and you will be treated to uniform complaints of court deadlines being repeatedly missed, cases arriving unprepared, evidence being lost, disclosure not being made, victims being made to feel marginalised and millions of pounds of public money being wasted. And, as a consequence, every single day, probably guilty people walking free. And if you knew the extent of the waste of public money within government procurement, the vast range of items supplied to prisons (and schools, hospitals and so on), you would question whether it is the accused who is the criminal or the people who make the laws that put him in the dock in the first place. Nevertheless, if you are accused of a crime, there is roughly a 50 per cent chance that the prosecution hasn’t fully prepared for the first court hearing. And this sets the tone for what follows. That evidence is served late in almost every case; that in less than 25 per cent of cases do the police and CPS fully comply with their statutory disclosure obligations (meaning that potentially exculpatory material is not given to the defence). As a result, the truth is that only 55 per cent of people who have been a victim or a witness in criminal proceedings would be prepared to go through it again. Ask any experienced probation officer if his ability to help his charges has deteriorated over the past decade or two; the answer is a resounding yes. His caseload has increased ten-fold, his pay and his available supporting resources has not. Probation officers cannot be blamed for reoffending, but often they are.
The difficulty begins when the state appropriates what is to an individual an essentially private dispute. From that moment, the fate of the victim and the state are tightly bound – although as we have seen above, it is far from an equal relationship. The victim is formally stripped out of the litigation; the ??????????? indictment is headed ‘Rex v Jones’, not ‘Smith v Jones’. The state determines whether to initiate proceedings, the parameters of any litigation and whether, at any stage, to silently discharge two bullets into the case and bury it at sea. The victim is no longer a victim; she is a complainant. Her involvement is both peripheral and central; she is not represented – the prosecution barrister is not ‘her barrister’; she will not be permitted to watch any of the pre-trial proceedings nor the trial itself until she has given evidence; and her views on what should happen at sentence are immaterial. Yet she will personally carry the success or failure of the proceedings.
And it is not just the victim who might potentially suffer. Innocent until proven guilty has underpinned our justice system for centuries. That is no longer the case, and hasn’t been for some time. In court, the accused is held in a secure dock under guard despite legally being an innocent member of the public until the end of a trial and he is formally convicted. What is anyone to think, let alone a member of a jury, under such circumstances? And that is without the modern prevalence of ‘trial by press’ beforehand.
The accused is subject to a barrage of procedural rules, such as with the disclosure of material in the prosecutor’s possession that might reasonably assist the defence or undermine the prosecution and which the Crown are legally obliged to provide to the defence. It has long been abominable in both magistrates’ and Crown Courts. Also, it is not just a possibility that the prosecution may drop someone from the indictment (on the grounds, for instance, that they are overseas and cannot be extradited in time for the court dates) simply to ensure that, therefore, the remaining accused parties cannot access material (such as emails that person may have sent or received which places him firmly under suspicion whilst removing those actually being accused from blame) that would cast significant doubt on their role in the criminal activity alleged to have taken place. Unless their name was also on the email, such as being copied in on it, then it is not relevant to their defence case. In such circumstances, it is the very fact that the accused were not involved in the communication that helps toward proving their innocence, yet they will not be given access to that material.
And if you are wondering how we came to a position where our betters decided that criminal defence representation was worthy of an hourly rate one tenth of an electrician’s, you will as ever find the answer embedded in a morass of institutional incompetence and botched money-saving. The prosecution will be given complete and total access to any and all material from day one of the investigation, supported by a full complement of investigators and legal expertise, in order to explore the material and prepare the very best prosecution case possible. The defence secure their barristers what may only be a matter of weeks before the trial itself starts, which can be years after the prosecution started their work, and they will never gain access to the same level of material the prosecution holds, let alone have the same level of investigative and legal support.
What is worse however is that the prosecuting department, after spending what could be years investigating a case and untold amounts of taxpayer money doing so, may then decide not to prosecute because it does not feel confident in securing a victory. It is not about the truth; it is about their ability to win. And all the money the defendant will have paid out or lost in covering legal costs along the way, let alone loss of income or assets whilst undergoing such intense investigative scrutiny, cannot be recovered. There is no recourse, so it bears repeating. You can be prosecuted by the state. You can be refused legal aid and forced to pay privately. You can be found not guilty of any criminal offence. And the life savings that you have exhausted in the process of defending yourself will not be refunded.
The word ‘game’ hangs in the air. Because that is often what an adversarial justice process amounts to. It does not seek to take a cool, impartial look at all available evidence. It does not calmly invite differing interpretations of a comprehensive fact-gathering exercise. The police, conscious of the political imperative to achieve convictions, investigate alone under their own steam. They pass what they find to the CPS, which selects the evidence that points towards guilt. The defence try to exclude parts of that evidence, throw in some of their own, equally partial, while lobbing smoke bombs into the arena in the hope ??????? that some may damage the prosecution witnesses, or at the very least distract the jury. Who, let us not forget, we cannot trust in possession of the full facts, lest they misapply them or otherwise disgrace themselves.
It is difficult to see how, in that framework, truth is ever supposed to emerge. Particularly in contrast to the alternative, European model – inquisitorialism. Which, whatever variant of the system you alight upon, is premised on and marketed as a neutral search for objective truth. The distortion and suppression of evidence is undeniable. It is integral to the process. And any system of criminal justice which in the name of truth-seeking entrusts investigation, presentation of evidence, witness interrogation, adjudication and sentence exclusively to the state does so on two principal assumptions: that the state is competent to find the truth, and that its neutrality in seeking it is unimpeachable. These are the twin assumptions that underlie inquisitorialism. And both are dangerously untenable.
Whichever model is used, it is a challenging proposition to defend yourself fairly. And within the British justice system, rarely is the schedule of Unused Material – which should contain a list of everything relevant to the investigation generated by the police in the investigation, with each item reviewed and marked either ‘disclosable’ or ‘not disclosable’ – complete. A 2017 joint report into disclosure by HM Crown Prosecution Service Inspectorate and HM Inspectorate of Constabulary made for terrifying reading. The police and CPS, whether due to poor training or lack of resources, were failing time and time again to comply with their obligations in run-of-the-mill (‘volume’) Crown Court cases. The Schedule of Unused Material that were supposed to be drawn up by the police were ‘wholly inadequate’ in 22 per cent of cases. The CPS was failing to pull the police up on these obvious failures, and 33 per cent of CPS files examined by the inspectors were marked ‘poor’. In over half of cases, CPS lawyers provided no explanation for their decisions as to what should and should not be disclosed to the defence. Audit trails of the disclosure process were unsatisfactory in 87 per cent of cases.
Additionally, consider that while the judicial oath binds judges to do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will, they remain susceptible to the same human frailties and cognitive biases as the rest of us. No two judges are the same, and two similar defendants might be sentenced entirely differently depending on their tribunals. Who you get is often determinative of what you get.
To that end, a sentencing hearing broadly takes three parts: one, the prosecutor outlines the facts of what the defendant has done, and draws the court’s attention to relevant law and guidelines – note, unlike in America, the prosecutor does not actively call for the highest sentence possible, nor are neatly wrapped ‘plea bargains’ presented for a judge to green-light a sentence agreed between the parties. Two, the defence advocate advances a ‘plea in mitigation’, presenting the mitigating????? features of the offender and offence, and persuading the judge to take the most lenient course. Three, the judge passes sentence. Except that when you enter the court for the sentencing hearing, and the prosecution stand and make their representations and recommendations for sentencing, followed directly by the defence in mitigation, whereby the judge is supposed to consider it all and then pass sentence, it is then that you notice the judge reads his decision from notes he had already written in advance and brought in with him to the bench.
To make matters even worse, in 2012, the sentencing expert Robert Banks examined 262 randomly selected Court of Appeal cases and found that in ninety-five – that is 36 per cent – unlawful sentences had been passed by the Crown Court. That’s not simply that the Court of Appeal thought that the sentences were too long; rather the Crown Court judge had done something that they did not have the power to do, or had not done something they were legally obliged to. These were not all points advanced by the barristers drafting the grounds of appeal either; many were missed and only spotted by the Court of Appeal’s own lawyers.
The absence of a holistic or consistent philosophy underpinning sentencing policy is laid bare when you compare guidelines for different offences:
·?Debbie, a thirty-eight-year-old prostitute, sells a wrap of cocaine to feed her addiction. The starting point for sentence is four and a half years’ imprisonment.
·?Charlie rapes a nineteen-year-old girl in her flat after being invited home. The starting point on the Sexual Offences Guideline is five years’ imprisonment.
·?Harris runs a nifty scam from his second-hand car business and cheats Her Majesty’s Revenue and Customs of ￡2 million in VAT. He’s looking at an eight-year starting point.
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Accepting the ruinous social and individual impact of supplying Class A drugs, `and even ignoring the plain reality that it’s true devastation is rooted in the implausibility of prohibition, it would take a bold anti-drugs campaigner to submit that selling a wrap of coke is, on any assessment of harm or culpability, broadly equivalent to a rape. And I doubt you’d find anyone to agree that depriving the taxman of 0.0006 per cent of its revenue is even worse. The official purposes of sentencing – and, by logical extension, the criminal justice system – are set out in legislation:
a)??? The punishment of offenders
b)??? The reduction of crime (including its reduction by deterrence)
c)??? The reform and rehabilitation of offenders
d)??? The protection of the public
e)??? The making of reparation by offenders to persons affected by their offence
??????????? [Should the sentence reflect a priority order of these?]
When defending a young kid carrying knives for his gang leaders, the only role models in his uneducated, unsupported shit bucket of a childhood, how does anyone in the system persuade him to give up the only security he knows, when his mates have all been shot or stabbed? How do you persuade him to put down his arms, cut his associations and gamble his life on a rigged roulette wheel for the prize of a law-abiding suburban existence that he thinks people like him can never win? And while the courts do their best, to wrestle sensitively with these imponderables, the mood music outside the court buildings spun by the media and political DJs is one-note: prison. Prison for all.
Our national fetish has seen the England and Wales prison population soar by 90 per cent since 1990, standing at over 86,000. We imprison people at a higher rate (146 per 100,000) than anywhere in Western Europe. Northern Ireland, by comparison, has an imprisonment rate of 76 per 100,000. Sweden’s figure is 57. Iceland’s is 38. Nearly 68,000 people were sent to prison in 2016. 71 per cent had committed a non-violent offence. And our sentences are getting longer. The average prison sentence for indictable offences has increased by over 25 per cent in the last decade.
To be fair, some offences are plainly so serious that justice can only be met by prioritising punishment and immediate public protection through a lengthy custodial sentence. However, there are a great many offenders who could be better punished than through imprisonment; and it could be a punishment that does not cost the taxpayer as much yet also does not compromise their safety; and at the same time does not punish the offender’s family, which may include young, completely innocent children. Of course, sympathy for those who inflict such wanton destruction is difficult to come by. But many people in prison are not monsters … Yes, it punishes and temporarily incarcerates, but its utility beyond that is negligible. Counter-intuitive though it may sound, there is no proven causative link between higher prison numbers and lower crime rates. At its most fundamental level, prison as we presently do it is an expensive way of making bad people worse.
The binary choice that should be presented is simple:
We can either keep rising numbers of prisoners in humane prisons that serve a purpose beyond warehousing, for which the Exchequer – ultimately you, the taxpayer – must pay through higher taxation; or we can shift paradigms and explore evidence-based policy from abroad that would see the use of prison radically reduced, and non-custodial, restorative and rehabilitative alternatives envisaged not as a ‘get-out’ but as meaningful components of a working justice system.
Instead, recent administrations have opted to keep rattling the custodial sabre, but not only have they not provided the additional funds that a rising prison population requires, they have on the altar of austerity slashed the prison budget by a quarter. And if ever you need proof of the impact this has had, then stepping inside a prison will immediately quell any agreement you may have with red-top caricatures of holiday camps. Prisoners are locked up for up to twenty-three hours a day in filthy, dilapidated cells in which they eat all their meals and use an unscreened lavatory in front of their cellmate. Cockroaches crunch underfoot, surrounded by broken glass, peeling ceilings, broken fittings, graffiti and damaged floors. Giant rats’ nests add infestation to the population. Drugs have flooded in as prison staff struggle to maintain order. The vast majority of prisons – 76 out of 117 as of May 2017 – are overcrowded. Violence is off the scale. In the year to June 2017, there was a record high of 41,103 incidents of self-harm and 27,193 assaults … prison deaths are at record levels: 354 prisoners died in custody in 2016. Such an environment does not just breed rats, it also breeds an ‘us vs. them’ mentality.
So, how do prisons begin the sensitive, vital exercise of trying to delicately unstitch and repurpose the damaged fabric of these lives? They don’t. They ?? can’t. Purposeful activity, which comprises education, work and other rehabilitative programmes, is at record lows, with only a quarter of prisons marked as ‘good’ or ‘reasonably good’, as an inevitable consequence of staffing levels that mean prisoners are unable to leave their cells. Three-quarters of educational facilities inspected by Ofsted were ‘inadequate’ or ‘requiring improvement’. The overall performance of a quarter of prisons was marked as ‘of concern’ or ‘of serious concern’. Consider HMP Wandsworth, in south London. It was built to house 900 prisoners in small, single cells where the prison infrastructure, such as education, work, training, healthcare and so on, was geared to support them; today it is home to 1,700 prison residents housed in those same small single cells using bunk-beds. And the physical limitations of the prison’s size restrict its support infrastructure from doubling in size too. Thus, the provision of the vital rehabilitative processes is vastly inadequate.
In late 2016, the government pledged to invest ￡1.3 billion over four years for the funding of 10,000 new prison places, and to recruit 2,500 officers. But even assuming that quality recruits will be attracted by the close to minimum wage per hour rate and sufficiently equipped by a ten-week training scheme – which is the shortest in any jurisdiction in the world – this will still not even restore prisons to the under-resourced levels of 2010. And the government, with an eye on the tabloid press, has publicly ruled out anything as sensible as reducing the number of people our courts are imprisoning. Any attempt to do so by the few who have voiced such a way forward are quickly and decisively attacked by mainstream press. Grown-up debate and evidence-based policy-making remains as elusive in prison policy as it does in our country’s infantile attitude to drug prohibition; a revisitation of which would be one practical way of getting a lot of people who pose no threat to society out of prison.
At the same time, whilst a free press can and should make whatever arguments it likes. the line should be drawn however, where argument is supported by half-truth and misrepresentation. It should also be drawn on reporting prior to conviction. Trial by jury is one thing but trial by press can be devastating. It is attributable to what is at best a reckless disregard for the truth; at worst, bad faith. The list of deadly sins continues. ‘Walk free’ is used to describe a suspended sentence of imprisonment, with no explanation either of the requirements – unpaid work, curfew, drug treatment – that the judge attached, nor of the way in which suspended sentences work: namely, if you reoffend or don’t do your requirements, you’re going inside. The judge will have explained for the record why the sentence is suspended; this should be reported. And if 80 per cent of the public genuinely believe that offenders are treated ‘more leniently than in the past’, they are certainly being conned. But not by the system; rather by those from who’s reporting the public are deriving these distorted, unevidenced views.
In 1998, Lord Bingham, then Lord Chief Justice, echoed nineteenth-century calls for a unified criminal code, drawing all criminal law and rules of procedure together in a single document, as exists in Canada. The age of the imperial British justice system must come to an end. It is out of date and not relevant to contemporary society.
So, serving two-thirds of a sentence does not mean early release is without restrictions or repercussions. But one thing most of us can agree on is that for sex or violent offences, it should be full term. And that term should be harsh, most especially for repeat offenders, and further, served in harsher category prisons, a stricter and more austere environment for much longer. Only then will it ever serve as even remotely approaching any kind of deterrent. However, we must be absolutely confident beyond any doubt whatsoever that the convicted party is guilty. Those who plead guilty for a small discount off their ultimate sentence should still be given it but under the stricter and more stringent environment above.
At the same time, consideration must be given to outdated laws and processes. Some laws, such as POCA (Proceeds of Crime Act), capture people it was not really intended for. It was meant primarily to capture the assets and other ill-gotten gains of drug dealers but has ended up capturing anyone who falls under the appropriate laws, even when that application is clearly unfair. Judges and prosecutors, not just defence lawyers, barristers and defendants, have remarked on how unfair the law can be, but it is the law in writing so must be followed until changed. That is their ‘get out of jail free’ card; no such luck to those who suffer over and above because of it.
Prison overcrowding must also stop and proper proportionate rehabilitation strategies established. For those offences given short sentences, such as shoplifting or petty theft for example, being given less prison is not the solution. Some homeless or addict offenders do it every year during cold weather simply to get a roof and meals. That is as much a reflection of our society and how we truly treat such people as it is on the individual making those bad choices in the first place.
One alternative path to consider would be that emphasis ought to be for non-violent cases, especially first offenders, whereby they are paid benefits (half of the cost to the taxpayer of putting them inside) BUT where they work full-time for the community benefit (cleaning public spaces, graffiti, or planting trees, etc). However, and extremely important too, there must complete and independently verified transparency over costs - ￡47,000 per prisoner per year, just for general population prisoners in a system that is overcrowded, has the highest reoffending rate in Europe with the lowest training of staff anywhere in the world, is ridiculous.
A prison officer being forced to accept his prison having to pay out of their budget over ￡900 for a four-drawer filing cabinet that takes weeks to deliver from a privately owned company no-one has heard of, instead of paying ￡300 for the exact same filing cabinet from one of the most widely known high-street brands in the market, with free next-day delivery is not just a no-brainer, it should be unquestionable. This is one simple but very real example of procurement waste, or more accurately abuse.
Yes, we must be 100% confident in the justice process. Yes, we ought to severely punish and deter convicted offenders, especially repeat offenders and most especially those convicted of sex or violent offences. But that process should better serve everyone involved, from victim to offender as well as the general public. It could start with engaging professional jurors, perhaps retired professionals bored with sitting at home but who have impartiality and simply wish to serve in the interests of true justice to victim, accused and public alike without any political bias. Therefore, an urgent and thorough independent, non-political review of the entire justice process from start to finish should be undertaken. And the panel appointed should comprise victims, ex-offenders, a wide range of the public, and law-making professionals alike. And it should be conducted for the benefit of all society, not those in the political or business profit making arenas.
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[2] Credit for much of the factual detail must go to The Secret Barrister; this is an eye-opening must read for anyone interested in our justice process.