Tue 11 August 2020

The former Chief Inspector of Prisons, Nick Hardwick, argues that time is running out for a progressive alternative to Boris Johnson’s backward plans for the criminal justice system.

Crime and justice played a big part in the Conservative Party election campaign and was one of its big themes, alongside Brexit. “Get Brexit done” and “20,000 extra police” were both hammered home, constantly.

Police and security and justice were also included in the Labour manifesto, but it is hard to recall anything a spokesperson for any of the opposition parties said about crime during the 2019 General Election campaign. It has been absent too from the welter of post-election analyses about why the Conservatives had such a big win. We need to understand both what Boris Johnson’s Government has in store for crime and justice and what a progressive response should be.

In the run-up to the General Election, opinion polls consistently identified crime as one of the most important issues facing the nation and the Conservatives were ahead by a wide margin as the best party to deal with the issue. The logic of the polls alone ensured that the Conservatives would push it hard and this was given impetus during the campaign by controversies that surfaced about why the London Bridge attacker Usman Khan and the serial rapist Joseph McCann were free to carry out their crimes.

The extent to which this is an issue with which the Prime Minister is personally engaged should not be underestimated. It is a matter of public record that his partner, Carrie Symonds, was one of the victims of the black cab driver John Worboys and she played a crucial role in getting a Parole Board decision to release him overturned.

It would, therefore, be no surprise that ending the automatic release half-way through their sentence for the most serious offenders, more whole life sentences, a ‘root and branch’ reform of the parole system, fast-track hearings for knife offences, a new victims law, 20,000 more police and 10,000 extra prison places are certain to be early priorities.

But, it is not the whole picture.

The Prime Minister himself as Mayor of London, other Ministers such as Michael Gove and some of the new intake of Conservative MPs close to Johnson like Danny Kruger have track records of supporting rehabilitation initiatives. So investment in new prisoner education services, employment programmes and youth services are also promised.

Structural and possibly constitutional change are in the pipeline too. Rumours abound that responsibility for prisons and probation is to be given back to the Home Office under Priti Patel. There will be a Royal Commission on the criminal justice process. And perhaps most significantly of all, in a section explicitly linked to the difficulties of “getting Brexit done’, the Conservative manifesto states that there will be a “Constitution, Democracy and Rights Commission” to look at the broader aspects of the Constitution, including the relationship between Government, Parliament and the courts, “updates” to the Human Rights Act and the “abuse” of judicial reviews.

All of this on top of a system under severe pressure.

The increase in prisoner numbers will occur much faster than prison places can be built, for instance. It is hard to see how the chaotic court system, beset with delays, can deliver the Tory promise to hold hearings for knife offences “within days not weeks”.

Prisons are already facing an “enduring crisis”, according to the Commons Justice Committee. Probation reforms were “fundamentally flawed”, says the Chief Inspector of Probation. The criminal justice system as a whole is “defective and dysfunctional”, according to the Chief Inspector of Constabulary. Legal aid cuts have caused “serious difficulty” for the courts system according to Lady Hale, the outgoing President of the Supreme Court.

The Progressive Alternative

Those who support progressive criminal justice reform and are concerned about many of the new Government’s plans are badly placed to resist them. At best, they too often create the impression of ambivalence about the harm that crime does, the concerns of victims, the responsibilities of the offender for their actions and the place of punishment as a response to crime. 

But, in my experience, the same people will be rightly concerned about the failures of the criminal justice system to deal adequately with sexual and violent offences against women and the need for ‘accountability’ for state and corporate offences – police misconduct, and the failures that led to Hillsborough and Grenfell. It is hard to distinguish the calls for justice in these cases from a desire for those responsible to be punished.  

A progressive alternative should be built on four pillars. 

First, a narrative that always begins by recognising the harm crime causes that goes beyond the direct victims to the wider community.  

Second, a recognition that our concerns about crime will reflect the social, political and economic context of our time. So, we might rightly conclude that some offences need to be dealt with more severely but we can simultaneously argue that other offences, drug offences being an obvious example, should be dealt with by much reduced penalties or be decriminalised. 

Third, a call for ‘smart justice’ not ‘tough justice’. Smart justice would mean ending the merry-go-round of Justice Secretaries (we have had seven in the past nine years). It would recognise that the criminal justice system is just that – a system. Pump demand into the front end of the system through more police and longer sentences without increasing capacity further down the line and pressure will build – to bursting point. One part of the system cannot be fixed in isolation; it needs a system-wide approach. Smart justice would also involve improving the astonishingly inadequate criminal justice IT systems so that different parts were joined in practice as well as in policy and the system really could be sped up. Improved capacity to monitor offenders in the community could – with safeguards – be an accepted alternative to imprisonment in many cases.

Finally, there has to be an unwavering commitment to the basic principles of justice which have been built up over centuries and underpinned by universal human rights standards. Where we compromise on those for the offences we most abhor, it is those weakest and most vulnerable who most need the protections these rights confer that will in time suffer most.

These are all issues that should be discussed and debated. Make no mistake, the Government’s alternative agenda is being pushed at speed and the Royal Commission and the Commission on the Constitution, Democracy and Rights will demand intelligent responses. Time is short to develop credible responses. 

Nick Hardwick is Professor of Criminal Justice at Royal Holloway, University of London. He was the Chair of the Parole Board for England and Wales (2016-18), HM Chief Inspector of Prisons for England and Wales (2010-2016), Executive Chair of the Independent Police Complaints Commission (2003-2010) and Chief Executive of Centrepoint (1986-1995).

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