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 is 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. Parole was one of a number of measures introduced in the last third of the 20th 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 has fallen significantly during the last 25 years and important improvements have been made in policing and many aspects of the criminal justice process - but tensions and ambiguities emerged when other political and managerial considerations began to intrude. They included 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 for longer or compulsory sentences, administrative reorganisation or privatisation.

Changes included the conversion of parole from a means of reforming individuals to one of protecting the public, and of probation from a system of support and rehabilitation to one of punishment and coercion. Both 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. Neither was publicly discussed 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 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. Reformers agree on the changes that are needed in the treatment of children and the age of criminal responsibility and the definition and penalty for murder, but have been unable to overcome the political resistance of successive governments. The effects of austerity are 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. Taken together, the changes created a constant state of turbulence, uncertainty and anxiety among those who have to make the system work.

Against that background the episode of John Worboys can be seen as a disaster waiting to happen. There will inevitably be others.

The immediate prospect is one of hasty adjustments to the Parole Board’s structure and procedures, but much more radical changes are needed. 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 energy to devote to a Royal Commission’s conclusions so long as they are preoccupied with Brexit and its consequences.

The government will 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. There is plenty to think about in the meantime. Scholars, professional leaders, practitioners, interest groups and opinion formers should now 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 might be 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?

  • Is it realistic or desirable to make reducing the prison population an objective of government policy? If so, how could it be done?

  • 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 setting targets for criminal justice outcomes? Are targets sensible or legitimate? How should they be used?

  • 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?

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 system will muddle on. Dedicated public servants will see that it does. But it could be so much better. What can scholars do to help?

 

This is an opinion piece by David Faulkner

David Faulkner is a former associate at the University of Oxford Centre for Criminology and a former fellow of St John’s College. He has written extensively on prisons, criminal justice government and public administration. He served at the Home Office from 1959-1992, working mainly on prisons and criminal policy and legislation and becoming deputy-secretary (director-general) for criminal justice in 1982.

David can be contacted at david.faulkner57@ntlworld.com ‘.