Unintended Consequences

Over 300 years ago English Philosopher and economist John Locke defined the “Law of Unintended Consequences”. He showed Parliament often solves one problem by creating rules that cause other, worse, harm. It is a pattern that is often repeated, and frequently observed in Prison and Criminal Justice policies as politicians react to headline making news by introducing punitive measures that damage uninvolved victims. In contrast we have recently seen one major news story, the successful appeal of Andrew Malkinson, that seems to be having unexpected outcomes in a positive way, but I will get the bad news out of the way first.

How This Law Works

One of the most harmful examples of unintended consequences that is still causing considerable damage 18 years after it was implemented and 11 years after abolition is Imprisonment for Public Protection (IPP). Introduced in 2005 following media headlines about serious sexual crimes, this allowed Judges to add an indefinite time in prison to a fixed tariff.

The man who pushed it through Parliament, David, now Lord, Blunkett, has since said it was expected to affect only several hundred people, guilty of heinous crimes. However the Judiciary added IPP onto thousands whose fixed tariffs could be as short as 6 months, and the Ministry of Justice failed to run the special courses those locked up were required to take so people stayed inside with no hope of getting out.

IPP was scrapped in 2012 but the change not backdated so there are still circa 3000 people in prison under this abolished punishment. Suicides and self-harm are far too frequent, and draconian licence conditions mean that as many people are taken back into custody each year for minor breaches of conditions as are released so the total is depressingly constant. Lord Blunkett, numerous senior politicians, former Judges, as well as campaigners, and now the Commons Justice Committee have called for resentencing for all those under the regime and that fight will continue. It was never the intention that such a cruel fate would be dealt to so many young people for comparatively minor crimes and thereby rob them of hope.

In Many Other Ways

Unintended consequences occur in many other ways, including when journalists learn high profile prisoners are applying for parole. There is always the same pattern. A well-known name, it is announced, is to attend a Parole Hearing. Newspapers run the story, a contrived panic is created, politicians get involved, and in the recent past the former, and in my mind unlamented, Justice Secretary might announce changes to the systems for release on licence. That causes stress amongst all those who are awaiting hearings and puts considerable pressure on Parole Boards themselves. When one of these well-known people out on Licence is recalled for a breach, the Papers go ballistic, even though to me the very fact of recall demonstrates the system is working to protect the public rather than failing.

When people are wrongly released too early through administrative error it is portrayed as a threat to our entire nation, even if it is for a few days before it is rectified and on one occasion two people who should not have been let out actually went back on their own to the prison concerned when they realised the error. Within a prison, an incident in one wing leads to a group punishment as the entire establishment may be put in lock down and that causes considerable unnecessary tension. Indeed the system appears so keen to demonstrate their crisis management skills that it takes a problem, makes it ten times worse by taking panic measures, so turns it into a crisis which it then tries to manage. Kneejerk reactions that cause long term harm to far too many.

And Now The Good News

Andrew Malkinson had been imprisoned for rape but after 20 years has finally won his appeal. His case proved conclusively that serious miscarriages of justice happen and that when they do the Appeals processes either grind slow or do not grind at all.

In 2003 a woman was attacked and violently raped in Salford, and following that Mr Malkinson was arrested. The victim’s description did not match him; for instance she had described having scratched the attacker’s face whereas he had no such mark the following day. He was identified at a questionable identity parade. There was no DNA evidence linking him to the attack, and Greater Manchester Police lost the victim’s clothing after the trial. He received a sentence of life imprisonment with a minimum of 6 and a half years but kept stating he was innocent so was kept in for the full sentence.

He went to the Court of Appeal and lost. He was rejected by the Criminal Cases Review Commission so after his eventual release in 2021 he was still condemned by neighbours as a rapist with his mother abused for supporting him, but he persevered. He got help from the organisation “Appeal.” DNA was found on other items of evidence pointing to another man, proving he was not the attacker. It became clear the Police had withheld evidence at the trial including photographs; some eyewitnesses they produced were dubious; the investigation flawed. Eventually he won.

This has already impacted on one side issue, that of reducing compensation to the wrongly convicted by deducting the cost of keeping them in prison. This ludicrous concept had continued for years, but after seeing this innocent man whose life had been stolen, even the most rabid sections of the press proclaimed this wrong and so the Justice Secretary has scrapped the idea for all innocents released.

So What Happens Next?

Perhaps, just perhaps, our politicians will stop and think before the next headline grabbing initiative. Mandatory sentences for shoplifters and for peaceful protesters will both fill up over crowded prisons and break up families, and mandatory sentences are never a good thing. Longer and longer sentences do not work. We know that. Give it some thought please.

But the Law Commission has now launched a major Inquiry into the Appeals system. For years people have complained about unfair obstacles as there is a reluctance to accept the possibility of error in case it undermines faith in the Law. However nothing undermines such faith as clear miscarriages, and this one was so blatantly wrong that things will have to change and for those unfairly convicted, on for instance Joint Enterprise, this may give hope for the arrival of fairness. And not in two decades time.

The victim of the violent rape was let down as her attacker has remained at large for 20 years whilst the wrong person was in jail. Miscarriages of justice affect everyone. That is why the headlines from this may well have the positive unexpected consequence of making our appeal system actually work. Locking up the wrong people does not deter crime as the guilty still walk the streets. It hurts us all.