More Public Justice? Part II

Last month, I wrote a post here about a review commissioned by the UK's Cabinet Office. The review can be found here and a BBC report on this review is here. I promised readers that I have a longer and more detailed reply which I will be sending to the Cabinet Office. My reply is as follows:

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I write to you with respect to your recently completed Engaging Communities in Fighting Crime: A Review by Louise Casey as part of your Crime & Communities Review published in June 2008. Whilst I agree with many of the findings in Engaging Communities in Fighting Crime (hereafter, ECFC), I disagree with several of its conclusions. I would like to state my concerns with several of these conclusions in the hope that it might contribute in some small way to the Government’s efforts to tackle crime and, most especially, reconsider any plans to introduce certain findings that I believe are suspect. Details about my work and contact details follow the conclusion of my letter. I will not discuss every section in ECFC, but I will voice concerns section by section.

Foreword
I accept the ECFC’s laudable goal of helping us gain a better grasp of the public’s understanding of our criminal justice system. What is clear from the ECFC’s Foreward is that the ECFC accepts the views of the public uncritically. For example, it states:

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‘the public are not daft. They know what’s wrong, they know what’s right, and they what they want on crime and justice. And it’s time action was taken on their terms’ (p. 3).
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I will endeavour to demonstrate not that the public are ‘daft’, but often highly misinformed and to some degree deceived about the criminal justice system. In effect, the public certainly holds various views about the successes and challenges of our criminal justice system, but these views exist without the benefit of even adequate information.

If there was any recommendation I would like to see from the Prime Minister, then it would be an introduction of ‘Civics’ in the national curriculum. These lessons would educate our schoolchildren about the civic life of our polity, informing students about how our system of government works, how students may locate their local MP and contact him or her, how their local council works, and similar information and skills. The purpose would be to purely inform students about how the civic life of their country operates . . . and also how to meaningfully participate in its life, beyond mere voting.

There would be several benefits from the introduction of such lessons. For one, immigration and asylum may be discussed within the context of Civics. This would have the stated benefit of helping students gain a more informed view of the facts and issues at stake—and become less reliant on misleading information from the media and other sources.

Likewise, a similar benefit would arise from discussions of the criminal justice system in this country within Civics. Clearly, what almost shouts from the pages of the ECFC is how little the public actually knows about our criminal justice system. What information they have is largely derived from media sources, crime programmes on television, and related sources.

It is highly important that the criminal justice system has the full confidence of the public . . . and that it works. Crime figures continue to improve and succeeding Governments have offered several new measures that have helped in this task. We can always do better and there is surely room for that. However, this Government (and future Governments) could perform better at convincing the public of successes in tackling crime.

I am not at all convinced that the ECFC’s recommendations will further this project and I will recommend different policies below, in addition to my recommendation for the mandatory teaching of Civics (perhaps instead of ‘Britishness’ whatever this is) in schools.

1. The Public, Crime and Justice
Again, this chapter highlights the need for the public to be better informed. We learn here that despite all the evidence to the country regarding lower crime rates virtually across the board, ‘the majority do not feel that crime has fallen’ (p. 5, emphasis added). Whilst it is important that there is public confidence in our criminal justice system, I would be highly wary about making any radical changes to the punishment—and deprivation of liberties—to present and future offenders on account of how a bare majority of the public feel . . . and not least as this feeling runs counter to all relevant facts. (If the public had a better grasp of civics, then their feelings about criminal justice might become better informed and it is highly likely that they might ‘feel’ differently.)

I was also highly concerned about this statement: ‘[The public] are more ready to support preventative and rehabilitative interventions with criminals if they believe these come on top of, rather than instead of, punishment’ (p. 5). My concern is that the public fails to understand preventative and rehabilitative efforts as punishment. It seems clear that the public most likely has a highly misled understanding of what these efforts entail. Moreover, it may appear the public perhaps holds a contrary position a well: if the public would like crime to reduce, then denying preventative and rehabilitative measures to criminals and making criminals as miserable as possible will not make criminals less likely to offend once more. In other words, if we follow the public’s feelings, they will exacerbate the worry the public already has (i.e., it will probably lead to increasing crime, a situation that concerns the public). These then are reasons to take the public’s concerns seriously, but not shy away from our current efforts to rehabilitate offenders. If anything, the public should become more educated about these efforts and the expected pay off, namely, lower recidivism rates and less crime. Would the public genuinely prefer (a) punishing an offender for an extra five years without any attempt at rehabilitation making his recidivism highly likely over (b) punishing an offender in prison a few years less through encouraging him to undertake rehabilitative programmes that will make his recidivism far less likely? I believe the public would support (b), but they need to learn more about what ‘punishment’ is in its many forms. They do not yet have this knowledge.

Finally, I contest the second ‘key fact’ from this review. It states:

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‘Only 33% of the public are confident that the Criminal Justice System meets the needs of victims, but 79% agree it respects the rights of offenders’ (p. 7, see p. 8).
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I do not disagree with these numbers, but their pairing: the two are incompatible (and akin to comparing apples and oranges). If the public were 10% more confident that the system met the needs of victims, it would not lead to any necessary loss in the public’s view of how offenders’ rights are respected. I believe that it is misleading to put these two together as they are incomparable.

What this ‘key fact’ makes clear is that victims believe that Government could do more to help them: this cannot be doubted. However, that our criminal justice system is widely perceived to respect the rights of offenders is not something I would support jeopardizing in order to help victims. It is right that those whom we threaten to limit their liberties be given every safeguard. This should not be abandoned.

2. Putting Victims, Witnesses and Other Law-Abiding Citizens First
Let me comment on two proposals. First, Proposal 1 which states:

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‘To address the absence of a strong public voice on crime, the Government should go further than its current stated intention to appoint a commissioner for Victims and Witnesses, by appointing a Public Commissioner on Crime. The Commissioner should have a broad remit to champion the public’s concerns about neighbourhood crime and justice within Government. In addition they should have specific responsibilities for driving up the levels of support offered to victims and witnesses’ (p. 18).
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I believe that this would be a mistake. No one from the public explicitly argued the case for such a position and it is unclear that hiring one additional person with this brief will offer the kind of improvement in services that is aimed at.

Instead, I would recommend that the Government not support this proposal. In its place, it seems clear that victims and witnesses have been often dissatisfied with how they have been treated during criminal investigations, the trial, and post-trial. I would argue that there should be additional resources for further police liaison support for this period, including a period of time after the trial.

In particular, there were too many accounts of witnesses moving through the system without support. At the very least, there should be a liaison who might greet witnesses as they appear for trial and—again, at the very least—inform them about what to expect.

I also contest Proposal 3. This states:

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‘The provision of automatic eligibility for special measures around anonymity (beyond those that current exist for children and victims of sex crimes) should be introduced for victims and witnesses who are:
· vulnerable – for example through old age or disability, in the same way that special measures are justified for children; and/or
· in fear of intimidation or reprisal and were [sic] wider impact on the community is particularly high (for example in cases of gang, gun and knife crime or persistent anti-social behaviour)’ (p. 18).
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I strongly oppose the easing of restrictions on witness anonymity. A foundational part of the jury trial in particular is not only that the accused can be reasonably expected to understand the grounds for her arrest, the evidence supporting conviction, and the justification of her sentence, but also that the accused can know her accusers.

The above measures would simply place too many in the category of possible anonymous witness. It would therefore become far more likely that increasing numbers of accused would be tried and convicted based upon evidence supplied by persons unidentified to them (or their defence). Whilst it is recognized that some extraordinary circumstances may justify such measures, these circumstances should not approach normal. Given that anonymity is justified only as a last resort insofar as it may undermine the ability of the accused to launch a proper defence (as is the right of the accused), Proposal 3 should not be adopted because it would contravene anonymity as a last resort.

3. Fighting Crime and Delivering Justice for Communities
I would like to comment on several of the proposals. First, let me comment on Proposal 12, which reads:

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‘Her Majesty’s Court Service should provide greater information to the public on cases, sentencing decisions and what happens to offenders, on a regular and much more consistent basis’ (p. 55).
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If providing such information does not contravene the Data Protection Act, I would have a few concerns. First, if citizens had become education in school on civics (as I propose above), then citizens would have an understanding about the criminal justice system that might not warrant this proposal being fulfilled. Whilst it is good to remind citizens of their responsibilities, I would be hesitant about supporting a system that punished failure publicly without rewards for success.

More importantly, I would enquire into the success of similar schemes to raise public confidence and further reduce crime. There are several schemes of ‘naming and shaming’ in the UK, for example. One such case is the Tyne & Wear Metro which regularly posts the names, ages, and areas of offenders along with fines paid for failure to purchase the correct pass. Has this scheme increased confidence and/or led to fewer violations? It would be helpful to know. Moreover, American local newspapers regularly feature a police blotter noting—day by day—what was reported to police, who was arrested or cautioned if anyone, and the like. Has this move led to increased confidence and/or led to fewer violations? My suspicion is that such blotters may have public support, but that they only serve to reinforce the media’s projected image of increasing crime in our communities (even where crime is decreasing). Thus, such a measure may help to counter, rather than support, a project of increasing public confidence and crime reduction. I recommend against this proposal.

Proposal 14 recommends that community sentences carried out as ‘unpaid work’ become rebranded as ‘Community Payback’ (p. 55). I object to this proposal. The argument appears to be to support an outdated and little held view of retributivism: the pay back model. This view of retributivism—held by few, if any, retributivists for the last twenty years—holds that criminals gain a benefit or advantage when committing crime which, in turn, they owe back to the community. Thus, when a criminal steals a sum of money, the criminal enjoys a benefit and monetary advantage that is unjust: this model argues that the purpose of punishment is to remove the benefit/advantage. The problem with this picture is that it does seem widely applicable. Does the rapist or murderer enjoy an unfair benefit or advantage? Most argue that rapists, murderers, and the like do not enjoy a beneficial advantage; but, in fact, they enjoy a disadvantage: they become depraved or callous to others. A retributivist may still argue that such a person should be punished to the degree he or she deserves without grounding her claim on the benefits model. Therefore, I believe calling this ‘Payback’ is theoretically and practically unsound.

Instead, we might simply rebrand ‘unpaid work’ as ‘Community Service’. This would follow the US model. Resources go to the prosecution, conviction, and possible hard treatment of offenders paid for by the taxpayer: Community Service is the right name for what it is, namely, giving something back to the community (in unpaid work). This would not then entail any major change of policy, only a change to the name of ‘community sentences’ to ‘Community Service’.

Proposal 16 states:

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‘The Government should implement a new Community Punishment that requires offenders to carry out Community Payback as above – visible and demanding – but with increased loss of personal time/liberty through greater intensity and frequency of hours. For example, if an offender is in employment, they would be required to undertake work several nights each week and at weekends or, if out of work, 5 days a week’ (p. 56).
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I have several reservations against this proposal. First, it is unclear that the public will more widely appreciate more harsh public treatment of offenders rendering community punishments when the public already lacks sufficient knowledge of the criminal justice system. (Again, a case where Civics in schools would bring wide benefits.) If the community does not understand how sentences are distributed to offenders, then I believe the benefits of harsher penalties may not be as great as expected.

Furthermore, throughout this particular chapter, the ECFC has highlighted problems with parenting, arguing that greater measures be taken against the parents of children involved in anti-social behaviour. Moreover, this chapter has also noted that poorer communities are often the location of this problem (and compose a greater percentage share of offenders than more wealthy communities). Given these background facts, I find it incredible that the proposal offered is to keep parents away from children even longer. If an offender required to undertake community punishment is a parent, the proposal demands that this parent—while spared prison—be required to perform even more tasks than called for at present that require greater hours. This will necessarily keep such persons away from their families for longer periods and may result in an increase in anti-social behaviour and crime. Thus, the proposal is counterproductive.

In addition, there is no evidence offered that persons are deserving of more severe punishments nor is there evidence offered that more severe punishments will help deter future offenders or better rehabilitate offenders. Instead, by keeping persons from their families, it may have counterproductive effects including (a) making community sentences overly harsh and disproportionate, (b) making less likely rehabilitation, (c) not diminishing from any deterrent effect, and (d) making increased problems in the community more likely. This proposal should not be adopted.

4. Crime Statistics – A New Approach
Proposal 22 states:

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‘The Statistics Authority or another independent organisation should be given full responsibility for producing the national crime statistics and trends. As part of a role in restoring public trust in national crime statistics, the Statistics Authority or another independent body should draw up a public protocol on responsible use of crime statistics and invite politicians of all parties, the media, and interest groups to publicly sign up to it’ (p. 69).
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The idea for an independent body comes from evidence obtained by the ECFC. I note that the ECFC states a survey it held that claimed that an independent watchdog was the most popular in a poll of ‘who do you most trust?’ competing against the Met Commissioner, senior judges, the Home Office, Prime Minister, and others. Nearly 50% claimed that they would trust such a watchdog most (p. 64).

My response is that it is one thing for an independent watchdog that does not exist to win a popularity contest: it is quite another thing for it to actually gain the public’s confidence in the way aspired to. The question we must ask is whether this would be the case. I believe that it would not.

We are awash with crime statistics. I cannot see the added benefit of yet another source for yet another set of even more statistics (and not least given the wide support for BCS figures in particular). The public is far more likely to become even more confused—and misled—than at present if this proposal is adopted.

Furthermore, it is highly unlikely that all relevant parties will accept the same figures from the same body forever more. Newspapers try to sell stories, politicians run for election, and so on. We would expect (and not unreasonably expect) that all relevant parties should make full use of all available information without being overly reliant upon a single source. All relevant parties are right to use all available information to put forward their best case. We should not expect the media, politicians, interest groups, and others to sign up to a body that does not exist (with unforeseen consequences).

I also note that ECFC nowhere challenges the BCS figures: why not educate citizens in Civics on the differences between already available figures instead of producing yet another set of statistics from yet another (new) body whose numbers will be contested alongside others in the public domain? I strongly recommend against acceptance of proposal 22.

Conclusions
My comments have been restricted to only a small number of the recommendations in the document Engaging Communities in Fighting Crime (or ECFC). This does not then entail that I fully accept all other recommendations offered, although I do widely accept much of ECFC. I believe that its data is revealing, its investigation fairly thorough and impressive, and the commentary in each chapter most helpful. (I say this with the reservation that this review should have held Have Your Say events in far more cities—and more representative cities in at least England and Wales—than Birmingham, Manchester, and Sheffield (see p. 87).)

Where I dissent from ECFC is its conclusions reached. Criminal justice remains a topic of important concern for the public. It is crucial that criminal justice policies are tailored to be both (a) effective in meeting the challenges ahead and (b) supported by wide public satisfaction.

Several conclusions reached in this report recommend proposals that would be counterproductive to (a) and (b). What is more, some proposals strike me as being lacking in critical judgement about the views of the public. Where public ‘feeling’ differs grossly from both valid statistics and their actual experiences, the Government should directly address these concerns.

The answer does not lie primarily in offering proposals likely to be disproportionate and possess a weaker rehabilitative effect. Instead, I strong suggest that Civics enters the national curriculum in our schools. It is important that citizens understand the working of the civic life of the country, including, but not exclusively limited to, the workings of the criminal justice system. From this perspective, the public might be best able to inform itself on issues pertaining to criminal justice.

In this letter, I have tried my best to clarify certain proposals that I believe might be mistaken for Government to adopt. Please do not hesitate to contact me if I might address any questions or concerns arising from this letter.
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Comments are most welcome!