Rebalancing the Criminal Justice System?

Tony Blair makes his latest proclamations about how the criminal justice system is failing law abiding people and promoting the cause of criminals today. Here we go with another law and order act (there have been more than 40 since Labour came to power in 1997). Interestingly he had a chat with some experts at Downing Street last week and asked them to send him their considered thoughts. Professors of Criminology, Ian Loader and Anthony Bottoms, Chief Constable Peter Neyroud, MP John Denham, Criminologist Julian Roberts (Loader's colleague at Oxford University) and Greg Wilkinson a partner at Ernst and Young have all written to him. Professor Loader is the most direct. Since he is so critical of the PM I'm not sure how long No.10 will retain the letter on its website though it's been there for a couple of days now. So I hope the good professor doesn't mind me quoting most of it here:

"I shall assume good faith on your part, which is to say I take it that you are interested in thinking seriously about how governments respond to crime, disorder and public insecurity in a liberal democracy and that you are not solely or mainly engaged in an exercise in electoral calculation and political positioning.

Let me start by repeating the point I made at the seminar. Our society has since the early 1980s been governed by administrations that have, shall we say, taken law and order extremely seriously, a focus that has become even more emphatic since 1993. None of these administrations has been particularly supportive of what the invitation letter revealingly called 'the rights of the criminal'. Yet you are now asking us to believe that during this period the criminal justice system has become 'unbalanced', such that it today unduly privileges the rights of criminals (we should of course say suspects) over those of the victim in ways that have led society to be poorly defended against crime. I simply think you need to offer more serious evidence than any I have seen that this is in fact the case, rather than simply assert that it is so, or that 'the public' believes it to be so. One needs also to exercise some care here with the metaphor of 'balance'. The idea of balance almost always functions in these discussions as a piece of rhetorical trickery, one that performs no real work in helping us to consider seriously the issues at hand (who, after all, is in favour of 'imbalance'?). It offers no criteria whatsoever for determining what the right 'balance' looks like, sets up the whole debate as an entirely zero-sum game between 'criminals' and 'victims', and offers no resources for protecting the criminal justice system from utilitarian calculation...

There are members of this society who plainly feel the way you say they do about crime and punishment - angry, let down and demanding of a response. (I have over the last decade spent countless hours interviewing people at length about crime and its place in their lives and have heard it all first hand.) But I think they are in fact in a minority, albeit one that makes or prompts a lot of noise. It is also not clear to me that governments can or should respond to their demands in the terms in which they are expressed. In fact, I rather suspect that such demands may be insatiable if responded to in these terms. People are also sometimes calling for things that are, to be blunt, not very nice, and which ought not in a liberal democracy to be acceded to.

Listening to you speak about these matters, however, you seem to take the view that the role of government is to act as an uncritical cipher for public anger and demands viz. crime and disorder. It is as if - on this issue at least - you have lost confidence in the capacity of government to engage in a dialogue with people, to point out some facts (about resource limitations, or the capacity and effects of prisons, or the constraints on what can be done to tackle crime in a liberal democracy), to put another view, to be a voice of reason and restraint rather than a conduit or cheer-leader for longer sentences and more punishment. But this, it seems to me, is precisely the sort of public conversation that our society urgently needs to have about questions of crime, justice and security, a point to which I return shortly.

There is, further, plenty of evidence to suggest that many members of our society do not feel as concerned or angry or let down by the system as you seem to think that they are. This is the lesson that emerges from the research conducted by Mike Hough and others which suggests both that people know very little about how the system operates (why should they?) and that they are often less severe than judges when asked how they would sentence in actual cases. And it is also the lesson of initiatives such as restorative justice, mediation and (now) community courts.

Put simply, if you ask people about these issues in abstract and general terms (is the criminal justice system failing? is the Human Rights Act silly? are young people today out of control?) they are likely to supply you with an affirmative - and often bewildered or angry - answer. But if you present them with real cases, or ask them about the youths on the corner, or engage them in problem-solving at local level, they are much less likely to think, sound and act like 'the public' that you believe the body politic needs pressingly to respond to. My question then is this: why do you seem so unwilling to take this evidence seriously and use it as the basis for constructing an altogether different narrative about crime (which after all has been going down for over a decade)? Do you not believe it? Or has it become simply too risky politically for government (perhaps any government) to accept and act upon it...

My worry here is several fold: first, I think the government is in danger of over-investing in criminal justice and forgetting the lesson that we tell every novice criminology student - namely, that policing, criminal justice and punishment have an important but ultimately small and peripheral part to play in the production of orderly societies; second; it often sounds as if you think the criminal justice system is a delivery arm of government. But it isn't. I know this must seem frustrating from where you sit, but courts are meant to function as checks and constraints, both on government over-zealousness and on police forces who may too easily presume to know that they have 'got the right person'. Third, you run the risk, once again, of raising public expectations in what the criminal justice system can deliver in ways that risk the government being hoist by it own petard, and which do nothing to break the vicious circle of scandal, media frenzy and 'firm' government response that has come to surround this area of public policy making in the last decade.

So what would I do? Let me offer three broad suggestions, or orientations.

Last year you delivered a lecture to the Institute of Public Policy Research on risk and public policy. It was full of extremely sensible statements to the effect that 'government cannot eliminate all risk', that 'not every scandal requires a regulatory response', that 'we need to involve the media in a better dialogue about risk', and that 'we cannot eliminate risk. We have to live with it, manage it'. This, it seems to me, offers a better starting point for thinking about crime, disorder and terrorism than the one that government seems currently to apply to crime risks. I know this is hard (though you said it was hard in relation to risks generally), not least because crime has a moral and emotional resonance that other risks seem not to possess, at least at first blush. But tackling crime, or anti-social behaviour, or terrorism, in ways that are consistent with living in and sustaining a decent, civilized, liberal democratic society requires us not to speak of 'eradication' (the term you resorted to when launching the Respect agenda), but of addressing problems in ways that that enable citizens to live securely with risk...

What follows from this: concentrate on discovering, funding, delivering and explaining to people programmes that work (whether in terms of prison education, or reassurance policing, or better detection - Polly Toynbee was right about this (Guardian, 9 June), while, at the same time, seeking to reduce the political and media heat that has come to surround crime and punishment. This has become, under your government, an area of legislative hyperactivity (with in excess of 40 Acts of Parliament passed in this field since 1997), and endless proclamations of intent. As an observer, I confess this has left me somewhat baffled - activity that seems to have more to do with the imperatives of electoral competition than a serious effort to address problems of crime and disorder. It may even be - as the Home Office has found to its cost in recent weeks - that the dizzying pace of new initiatives has made it more difficult to keep one's eye on the ball of sound administration and delivering programmes that stand some chance of achieving positive results on the ground. So I guess my suggestion is this: think hard before deciding that what our society needs right now is another grand statement of governmental purpose and a further round of headline-grabbing legislation; or at the very least think carefully about the kind of message you wish to send, lest you end up inadvertently reinforcing, or even stirring up, the very concerns you think government needs to assuage. Might, in fact, it be better to begin to think instead about how to dismount the tiger that politicians have in recent years collectively convinced themselves they have no alternative but to ride.

Please, finally, try to find another - more responsible, more compelling, more solidaristic - language for talking about human rights. It strikes me that you - and the Henry Porter's of the world - have got into the habit of thinking about rights in overly individualistic terms...

It is worth recalling here that politicians nearly always (can you think of a counter example?) become less concerned about protecting civil liberties once they enter government, something which suggests that what changes is less the 'facts' on the ground and more the peculiarity of the perspective from which they come to view them. What is forgotten on both sides of this debate is that human rights, or any of the other checks and protections that 'we' build into the criminal justice system, exist not only or even mainly to protect individuals, deserving or otherwise. They are rather, the mark of a decent, civilized society and as such things that we have a collective stake in being proud of and defending. Rights, in short, are preconditions for the police and justice system being able to contribute positively to citizen security in a democratic society, and they ought to be articulated and defended as such.

I rather suspect that you and I do not see entirely eye-to-eye on these matters, something that may (or may not) be a product of the respective places from which we approach them. I nonetheless hope that you find these reflections of some assistance in helping you to come to a settled view on these vital matters."

Brilliant.