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Where next for criminal justice?

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Where next for criminal justice? Spectres and prospects

Even after twenty years of constant reorganisation, legislation and increases in expenditure, what is commonly called the criminal justice system is not performing as it should. Not enough is being done to prevent crime, to support those who suffer from it, or deal adequately with those who commit it. The system needs a clearer sense of direction, or some would say a new direction altogether.

Without it the country will at best face a continuing period of frustration, and at worst increasing instability as cuts and structural reforms take effect. That sense is especially needed at a time of more general uncertainty about Britain’s social and economic future and its place in the world.

The agenda for successive governments has been one of improving efficiency and effectiveness, applying business methods, competition, outsourcing and now payment by results. Some of that brought a necessary discipline, but the debate about criminal justice has become polarised and muddled by confusion, misunderstanding and preconceived ideas.

Governments’ attempts to prevent and reduce crime have been overlaid by a separate agenda of modernisation and public service reform, and by a preoccupation with appearances and political advantage, which raised their own issues and caused their own problems. The result has been continuing disillusion, disappointment and frustration.

A more confident sense of direction could be found, and a more successful approach could be established, by identifying some of the lessons that can be learned from the past, by restating the underlying principles and values, and by trying to form some consensus around them. Experience and research have shown that the country needs a better understanding of the situations and motivations that lead people to commit crime, or to stop committing crime, or not even commit it in the first place.

Crime and people who commit it, or are affected by it, have to be seen in a wider context of their relationships and their social and economic situation. Common assumptions about people’s motivations, and about incentives and deterrence, are often mistaken. There is important evidence on the significance of institutions’ and procedures’ legitimacy in influencing people to obey the law or comply with conditions, and on the factors which affect reoffending and desistance from it. Decency, respect and humanity count.

Important issues for the future will clearly include outsourcing and payment by results for policing, probation and prisons. Some functions may be outsourced to voluntary organisations or consortia of which a voluntary organisation is a part, but they will mainly go to the private sector including large multi-national organisations. Some people think that the only difference between the public and private sectors that matters is that private sector is more efficient. But there are real differences in the sectors’ culture and accountability, and those differences matter when it comes to justice and ultimately to the fabric of society itself. Commercial or other interests may be seen as having a disproportionate influence and so as undermining democracy.

There are arguably some functions which governments, or the state, should not attempt, and others which should only be performed by public sector organisations accountable to ministers and Parliament - in particular any functions which involve the use of force or affect decisions about a person’s liberty or their rights and status as a citizen.

Experience in other sectors has not been reassuring, and there are comparisons to be made with employment, health, education and social care. It is not only readers of the Guardian who see increasing disillusion with commercial or business models more generally.

Elected Police and Crime Commissioners will create a new dynamic in policing and probably in criminal justice more generally. But it is not yet clear how genuinely representative they will be, how far their influence will extend to prisons and probation (or beyond), or how far the government’s intentions for those services extend beyond outsourcing to any serious programme of localisation or transfer of power (as distinct from risk). Critics see the outcome as likely to be greater fragmentation, confusion, conflict and populism. Elected commissioners may help to move the focus of debate away from national government and national politics and towards local areas and communities and local solutions, as penal reformers have argued for some time.

As at national level, critical questions will concern the relationships between local authority, power and responsibility. A commissioner may have authority to direct resources towards certain objectives or outcomes, but those may not be achievable without the cooperation of other stakeholders or other favourable circumstances over which commissioners have no control. Mayors or local authorities may for example be able to have more influence over levels of certain kinds of crime than commissioners or the police who are seen as having that responsibility. Commissioners will be accountable to their electors, but they may not have credibility or legitimacy if they are seen as remote or are elected on a very low vote. Elections are not the same as, and do not guarantee, democracy, and other forms of consultation and participation may be more effective and more legitimate. The dynamics of those relationships and the spirit in which they are handled will be critical for the direction which criminal justice takes in the future and for any judgement of the success of the government’s policies.

A programme of localisation could also include new roles for the magistracy. Out-of-court penalties, neighbourhood resolution panels, and restorative justice are for the most part to be welcomed, but there are important questions about accountability and legitimacy, and about how much variation of practice will be acceptable or tolerated. Magistrates could have a role in overseeing the use of out-of-court penalties, not in reviewing individual decisions but in considering the extent and the types of case in which they are used and comparing practice and experience in different places and over periods of time. They might also have functions in overseeing the powers of such bodies as youth offending teams and multi-agency public protection arrangements (MAPPAs); in following the progress of offenders while serving their sentences and supervising their recall to prison when that is necessary, perhaps on the lines of juges d’application des peines in France; and as members of independent monitoring boards for prisons.

Other concerns discussed in my book with Ros Burnett Where Next for Criminal Justice?, and not confined to criminal justice, include the processes of consultation, policy-making, legislation and implementation, the balance between the urge for innovation and the need for continuity, the use of exclusionary and objectifying language, the interaction between political, professional and commercial judgement, and the role and independence of voluntary organisations working for government and its contractors. All those issues are arising at a time when the existing services are suffering cuts in the resources available to them and are under pressure in dealing with their ordinary day-to-day business, and they are of continuing concern in relation to the treatment of women, minorities, children and those with problems of mental disorder.

A sense of direction will need more than efficiency, effectiveness and reducing costs. It should be about the kind of country that Britain is to be, and it needs to address some philosophical questions that should not be dismissed as ‘just theory’.

One vital criterion for our future direction is a better understanding of what we mean by justice. Is it the fact of bringing a person before a court, obtaining a conviction, or imposing a sentence that satisfies the victim or public opinion? Is it the process by which those things happen? Or is justice to be found not so much in the outcome as in the fairness and legitimacy of the process and in the culture of the relevant services and institutions?

What do we see as the nature, role, and purpose of punishment? What makes it legitimate? Does only imprisonment count as punishment? Must wrong doing always attract punishment?

And then what is the place for humanity, kindness and decency? Is there a place for compassion, mercy and forgiveness? Why are those words so difficult to use?

David Faulkner is a Senior Research Associate at the Centre for Criminology, University of Oxford. He was a Fellow of St John’s College Oxford from 1992 until 1999, and served in the Home Office from 1959 until 1992, becoming Director of Operational Policy in the Prison Department in 1980 and Deputy Secretary in charge of the Criminal and Research and Statistics Departments in 1982.

The arguments in this paper and the evidence for them are set out in more detail in Where Next for Criminal Justice?  by David Faulkner and Ros Burnett, published by The Policy Press in October, 2011. You can buy this book through the CrimeTalk bookshop, in association with Amazon, and so support CrimeTalk financially in a small way. Just click on the title below and buy in the usual way from Amazon.


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