Justice

Justice

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Everyone in the UK should be protected and treated fairly by the law; sentencing and prison conditions should be more focused on reintegrating people into society, while broader government policy should more proactively tackle the structural causes of crime.

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Fairness and justice

A fair justice system is needed to deliver fairness to a diverse group of stakeholders: defendants, victims, witnesses, and the public. It needs to ensure that everyone is treated equally by the law, including when people break it and are dealt with by the criminal justice system. It needs to deliver a fair system for ascertaining guilt or innocence and for dealing with offenders.

Everyone in the UK should be protected and treated fairly by the law; they should have the right to legal advice and representation regardless of their ability to pay; the police, prosecutors, courts and prison and probation services should treat everyone fairly regardless of their background; sentencing and prison conditions should be more focused on reintegrating people into society, and the needs of women and vulnerable groups in prison should be better taken into account, while broader government policy should more proactively tackle the structural causes of crime, including poverty, unemployment and low standards of living among disadvantaged groups.

Justice is intertwined with everything else. Education, economics, class, race, work, welfare, housing, even health. Prison is only for other people until someone you know ends up there. The courts are only distant until you become a victim of crime. The justice system is only abstract until it is not. We take it for granted at our peril.

David Lammy, Labour Party conference speech, September 2021

To prevent prisoners committing more crimes we have to understand them as humans, we need to understand their pasts, their mental state, we need to think about what therapy they could receive.

Rory Stewart, former Prisons Minister, January 2019

Under-resourced, over-stretched

It is difficult to make a convincing case that our current justice system fully succeeds in achieving any of these aims. As such, it is unfair.

It is unfair because it is under-resourced and undervalued. As the Secret Barrister points out, “a working criminal justice system, properly resourced and staffed by dedicated professionals each performing their invaluable civic functions, for the prosecution and the defence, that serves to protect the innocent, protect the public and protect the integrity, decency and humanity of our society… should be a societal baseline. Not a luxury.”

We lock up too many people, meaning that the total costs of incarceration are high even though the amount spent per prisoner is low, and that many prisoners suffer from appalling conditions, especially in older prisons (with something of a postcode lottery). By contrast, countries like Norway spend much more money per prisoner and achieve much better (and fairer) outcomes, leading to much lower numbers of people in prison.

Meanwhile the rest of the criminal justice system is squeezed; for example, spending on our courts system declined by almost a third between 2011/12 and 2015/16 alone. The under-resourcing of the courts system increases the risk of miscarriages of justice, whether because many smaller cases are tried by magistrates with inadequate training or time, or because of the slow pace at which many crown court trials proceed.

A lack of fair process

It is unfair because people are treated inconsistently by the criminal justice system. Examples of the lack of equal treatment include the disproportionate targeting of young black men by the police, cuts to legal aid that leave those without means unable to defend themselves adequately, rules about joint enterprise that disadvantage young black and minority ethnic people, the unjustly harsh treatment of prisoners on remand, the ongoing scandal of prisoners with indeterminate sentences, the use of close supervision centres "that may amount to torture", an inadequate appeals process, and the over-use of custody that affects everyone but has a particularly disproportionate impact on women and vulnerable people with mental health issues, drug dependencies or learning disabilities. The police have too much power and are insufficiently accountable, which has particularly negative impacts on the most disadvantaged in society.

A lack of fair focus

It is unfair because people who live with disadvantage, such as disabled people, people in significant debt, people falling foul of immigration laws and people fleeing domestic abuse often experience multiple, simultaneous and mutually reinforcing legal problems that traditional legal and/or social services, which normally focus on single issues, are ill-equipped to resolve. As Stephen Wexler observed in Practicing Law for Poor People, “poor people do not lead settled lives into which the law seldom intrudes; they are constantly involved with the law in its most intrusive forms”.

It is unfair because it perpetuates and punishes disadvantage rather than helping offenders to reintegrate into society. There is too much focus, and too much money spent, on being tough on crime and not enough on tackling its root causes, including poverty and a range of linked problems such as poor housing and unemployment.

It is unfair to victims. We need to place care and support for victims at the centre of our justice system. While there are not significant differences between ethnic groups or between men and women in terms of the likelihood of being a victim of crime overall, some groups are of course at greater risk of being victims of specific crimes (such as sexual violence or domestic abuse against women).

Bringing about change

Attitudes to crime and punishment are changing, partly as a result of the COVID pandemic. People understand that prisons are unpleasant and overcrowded, and have become more aware of the corrosive effects of imprisonment after being locked in their own homes for weeks at a time. There is also a better understanding of the extent to which life chances and outcomes (most obviously, surviving the pandemic) are impacted by socio-economic inequalities. As a result, there is likely to be increasing public support in the short-term for better approaches to criminal justice that are as focused on rehabilitation and reform as they are on punishment and protection of the public.

What needs to change

There are a set of issues around how fairly the justice system operates – whether everyone has equal access to justice, and whether they are treated equally by the justice system, especially if they are imprisoned. These ‘transactional injustices’ need to be tackled as a matter of urgency, especially as certain groups (including ethnic minorities and various groups who are vulnerable for various reasons) are very badly treated by the current system.

Then there are a set of high-level systemic injustices, based on the idea that the justice system perpetuates inequalities and punishes poverty, when it could be playing a role in overcoming inequality by helping people to rehabilitate into society.

Finally, there are a wide group of underlying injustices (deprivation, poverty, and unequal access to education, housing, jobs, and so on) that lead to higher crime rates, and which can only be solved by investing in wider social infrastructure, such as housing, education and jobs, that will help people to live better lives and reduce the burden of crime.

To me, fairness is rooted intractably within what we mean when we talk about criminal justice. Fairness to the defendant. Fairness to the victim. Fairness to the witnesses. And fairness to the public. When we cry that an outcome or a procedure is unjust, we tend to mean that it’s not fair... It’s fair, ultimately, that the guilty should be convicted, and the innocent acquitted, but, where doubt prevails, that we exercise it in favour of the accused.

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Justice and fairness

Everyone should have equal access to justice, and be treated equally by the justice system regardless of their background or characteristics. For example, no one should be denied access to legal advice or representation because they cannot afford to pay for it.

Everyone should have an equal opportunity to make the most of their lives. This means that the justice system should aim to reintegrate offenders into society.

The justice system should not aim to achieve equal outcomes for everyone, since people should be acquitted or convicted according to their innocence or guilt, and sentenced according to the nature and severity of their crimes. Unequal outcomes are acceptable as long as they have not arisen as a result of inequality of access to justice or unequal treatment (i.e. a violation of procedural fairness). However, the state has a role to play in intervening alongside other actors to tackle the structural causes of crime and imprisonment, which include poverty and deprivation, and which exacerbate differential outcomes in terms of the extent to which different groups in society are convicted of crimes and punished for them.

The justice system has to be fair in order to be credible; and a fair society must have a fair justice system, both in terms of equal access to justice and equal treatment by it. To rebuild trust, people must believe that justice is fair and equally applied to all. A fair justice system should punish offenders, but should also rehabilitate them into society. And a fair society should look beyond the confines of the justice system to tackle the systemic issues that lead to higher rates of crime.

Fairness means more than ensuring just outcomes and upholding due legal process. Ensuring procedural fairness means that decisions that are made need to feel fair to people who come into contact with the justice system (such as people coming to court). How a defendant (or witness or victim) is treated has a profound effect on their perception of the process and their ongoing likelihood of complying with court orders and the law generally.

Providing better and earlier access to justice helps to prevent all sorts of other social problems (such as poor housing and injustices at work) that lead to negative social outcomes (such as poor health, poverty and crime). A 'systems thinking' perspective and approach is needed whereby the causes of crime are considered and tackled alongside the causes of other related social problems.

Transactional injustices (in which people are treated inconsistently by the criminal justice system, as described above) need to be tackled as a priority, to ensure that the justice system is fair.

Victims deserve to be treated with respect and dignity, and their co-operation and trust is necessary if the system is to function effectively. Victims are often not mainly concerned about punishment of the offender; in most cases their priorities are to feel safe and to be reassured that the crime won’t happen again to them (or to someone else).

Learning from other countries

Scotland, and England and Wales, have the highest imprisonment rates in Western Europe (133 per 100,000 people in Scotland and 130 in England and Wales, compared to 93 in France, 69 in Germany and 54 in Norway; Northern Ireland has 73).

The World Justice Project’s 2020 Rule of Law Index ranked the UK as having the 12 most effective criminal justice system in the world, although the UK scored comparatively poorly (25 worldwide, and 0.56 out of a maximum score of 1) on an indicator measuring whether the ‘correctional system is effective in reducing criminal behaviour’, less than the regional average of 0.61 and much lower than top-scoring countries like Norway (0.91), Singapore (0.87) and Finland (0.86).

British prisons are often compared unfavourably to those in Scandinavia, where good design is not just expected for the domestic home, but extends to the building of new prisons as well. For example, officials at Storstrøm Prison in Denmark, which opened in 2017, described itas a “modern, humane, high-security prison that uses architecture to promote prisoners’ social rehabilitation”. Like Halden Prison in Norway, Storstrøm holds 250 men in buildings that are configured to form a small urban community – with streets, squares and centrally located community buildings.

The Norwegian system is based on rehabilitation rather than on punishment, considering the criminal as a symptom of a ‘diseased’ environment. It seeks to rehabilitate people by normalising their circumstances, for example by building prisons that resemble life on the outside as closely as possible. It places low-level offenders in open prisons, with minimal security and more freedoms and responsibilities, while more serious offenders are sent to more secure closed prisons, creating a separation between minor and more hardened criminals. Norway has a policy of one prisoner per cell. All prisons in Norway offer education, drug treatment, mental health and training programmes, and after release there is an emphasis on helping offenders reintegrate into society, with access to active labour market programmes set up to help ex-convicts to find a job and to access a variety of social support services such as housing, social assistance and disability insurance. The Norwegian prison system is successful in increasing participation in job training programmes, encouraging employment, and discouraging crime, largely due to changes in the behaviour of individuals who were not working prior to incarceration. The Norwegian prison system spends almost double the amount per inmate per year compared to other Western European countries, but these high rehabilitation expenditures are more than offset by the corresponding benefits to society: a reduction in criminal justice system expenditures (including police department and criminal court costs) due to fewer crimes being committed, increased employment resulting in higher taxes paid and lower welfare payments, and reduced victimisation costs due to fewer crimes being committed in the future. However, one logistical side effect of this approach is a lack of cells, which has forced Norway to send some prisoners to prisons in the Netherlands in recent years.

The Centre for Social Justice points out that many countries have introduced successful alternatives to imprisonment in recent years. Israel introduced community service in 1987. The Netherlands introduced community service in 1989 to reduce the use of short-term imprisonment. Sweden used conditional custodial sentences and community service for many years before introducing Radio Frequency Electronic Monitoring in 1994. France introduced Electronic Monitoring in 1997 instead of shorter prison sentences. Australia introduced the Community Correctional Order in 2012. Northern Ireland is rolling out the Enhanced Combination Order as an alternative to short prison sentences.

The situation today

All statistics are from the Prison Reform Trust's summer 2021 Bromley briefing unless other links are provided.

The prison population in England and Wales has increased by 74% since 1990, from just over 40,000 to 78,000, and is projected to rise by a further 20,000 people by 2026.

In England and Wales we overuse prison for petty and persistent crime. Over 40,000 people were sent to prison in 2020; 63% had committed a non-violent offence and 44% were sentenced to serve six months or less.

16% of people in prison are on remand, of which 68% are awaiting trial and the rest are awaiting sentencing. Black men are 26% more likely and mixed ethnicity men 22% more likely to be remanded in custody at the Crown Court than white men. 28% of self-inflicted deaths in 2020 involved people held on remand (far higher than the proportion of the prison population they represent). Around one in four people on remand go on to receive a non-custodial sentence or to be acquitted, which makes it hard to justify the policy of remanding people in custody on either cost or fairness grounds.

Short prison sentences are less effective than community sentences at reducing reoffending. Community sentences are particularly effective for those who have a large number of previous offences and people with mental health problems, but their use is a third of the level of a decade ago. Research by NEF found that for every pound invested in support-focused alternatives to prison, £14 worth of social value is generated to women and their children, victims and society over ten years. At the same time, the supervision of community sentences for minor crimes by privatised probation providers (community rehabilitation companies) has been disastrous.

Rehabilitation is failing. 48% of adult prisoners are reconvicted of another offence within a year of release. Only 10% of people are in employment six weeks after leaving prison, and after a year, the figure rises to just 17%. Only half of people released from prison in 2019/2020 had settled accommodation on release, and more than one in six were homeless or sleeping rough.

There are multiple disparities in the way that people from ethnic minorities are treated by the criminal justice system. For example:

  • 27% of the prison population are from ethnic minorities. If our prison population reflected the make-up of England and Wales, we would have over 9,000 fewer people in prison - the equivalent of 12 average-sized prisons.
  • Black men are 228% more likely to be arrested than their white counterparts.
  • Black people are 53%, Asian 55%, and other ethnic groups 81% more likely than white people to be sent to prison for an indictable offence at the Crown Court.
  • The 2017 Lammy Review found that BAME individuals still face bias, including overt discrimination, in parts of the justice system, and that BAME disproportionality in the criminal justice system costs the taxpayer at least £309 million per year. It also found that BAME men are more than 50% more likely than white men to plead ‘not guilty’ at Crown court, which could be influenced by “the legal advice they receive, the type of legal representation they have, if any, the level of trust they place in any sentencing discounts they may receive for early guilty pleas, the defendant’s assessment of their chances with a jury, as well as whether they actually committed the offence with which they were charged”.

5% of men and 7% of women in prison say that they are Gypsy, Roma or Traveller, compared to an estimated 0.1% of the general population in England. Inspectors found that most prisons they visited were still not aware of their existence or needs. A report by Her Majesty’s Inspectorate of Prisons said that more needs to be done to understand and address the reasons for their over-representation, but suggested that they "lie outside the prison service".

Many people in prison don’t know if, or when, they might be released. 10,676 people are currently in prison serving an indeterminate sentence - 16% of the sentenced prison population, up from 9% in 1993. 6,954 people are serving a life sentence and a further 1,784 people are serving sentences of Imprisonment for Public Protection (IPP). IPPs were abolished in 2012 by then Justice Secretary Kenneth Clarke, who said that IPPs were “unclear, inconsistent and have been used far more than was ever intended... That is unjust to the people in question and completely inconsistent with the policy of punishment, reform and rehabilitation.” But the abolition was not applied retrospectively, and 96% of people still in prison serving an IPP sentence have passed their tariff expiry date - the minimum period they must spend in custody and considered necessary to serve as punishment for the offence. IPP prisoners are more vulnerable to self-harm and suicide; with fewer releases, and a rise in people recalled to indefinite custody (often for behaviour that appears to fall well short of the tests set in official guidance), growing numbers are ending up back in prison.

Many people are convicted under ‘joint enterprise’ provisions, which lead to many people being convicted unfairly and in particular lead to unequal outcomes for young black and minority ethnic people. A 2016 report based on a survey of 250 prisoners convicted under joint enterprise found that more than three-quarters of the black and minority ethnic prisoners reported that the prosecution claimed that they were members of a ‘gang’, compared to only 39 percent of white prisoners. Their apparent ‘gang’ affiliation’ was used to secure convictions, under joint enterprise provisions, for offences that they had not committed. While some recognised connections to co-defendants through family or friendship ties, the overwhelming majority disputed that these reflected ‘gang’ involvement.

The appeals process is not working as it should. The public watchdog for miscarriages of justice, the Criminal Cases Review Commission (CCRC), has only referred 771 cases to appeal out of 28,058 received since it was set up in 1997 (fewer than 3%). A 2021 inquiry by the Westminster Commission on Miscarriages of Justice concluded that the CCRC’s mandate, structure and criteria need to be improved, and in particular that it should refer cases wherever ‘it considers the conviction may be unsafe, the sentence may be manifestly excessive or wrong in law, or that it is in the interests of justice to make a referral’, rather than only where it considers there is a ‘real possibility’ that the Court of Appeal will overturn the conviction or sentence.

A third of people assessed in prison in 2017–18 reported that they had a learning disability or difficulty. 7% of people in contact with the criminal justice system have a learning disability - this compares with only 2% of the general population. Inspectors have found that “little thought was given to the need to adapt regimes to meet the needs of prisoners with learning disabilities who may find understanding and following prison routines very difficult”.

Drug addiction in prisons is rife. Various surveys suggest that around one in five prisoners acquired a drug habit since entering prison. The independent review of drugs found that “too many drug users are cycling in and out of prison, while prisons are overcrowded, with limited meaningful activity, drugs easily available, and insufficient treatment. Discharge brings little hope of an alternative way of life. Diversions from prison, and meaningful aftercare, have both been severely diminished and this trend must be reversed to break the costly cycle of addiction and offending.”

The data on how many people in prison have mental health problems and how much government is spending to address this is poor, and needs to be improved. While the quality of clinical care is generally good for those who can access it, the rise in rates of prisoner suicides and self-harm suggests a decline in mental health and well-being overall.

Despite a recent decline, there are still twice as many women in prison today as there were 27 years ago. Many women in prison have high levels of mental health needs and histories of abuse. Rates of self-harm and self-inflected deaths among women prisoners have risen in recent years. 71% of women in prison reported that they had mental health issues compared with 47% of men. 36% left prison in the year to March 2021 without settled accommodation; 18% were homeless and 4% were sleeping rough on release.

The public doesn’t believe in prison; surveys show that fewer than one in 10 people think that having more people in prison is the most effective way to deal with crime, despite the aggressive and influential tough-on-crime tone of much of the right-leaning media. Early intervention, such as better parenting, discipline in schools and better rehabilitation, are all seen as more effective responses.

The justice system is also increasingly failing victims. A recent report from the victims’ commissioner for England and Wales found that chronic underfunding of the criminal justice system has left victims under-supported and with a lower chance of seeing justice. The report said that the backlog of cases in the crown courts, exacerbated by the pandemic, was resulting in an increasing number of people dropping out of the system (government figures showed that there were almost 60,000 cases waiting to be dealt with by crown courts at the end of March 2021, a 45% increase on the previous year).

Recent developments

The prison population in England has risen by 74% in the last 30 years (from 45,000 to 78,000), and is projected to rise by a further 20,000 people by 2026.

Meanwhile, the prison service’s budget is 13% lower in real terms today than it was in 2010. The number of frontline operational prison staff (bands 3–5) was cut by 26% between 2010 and 2017. Despite recent recruitment, there are still 12% fewer staff than there were in 2010.

Sentences are growing in length. Almost three times as many people were sentenced to 10 years or more in 2019 than in 2008. People with mandatory life sentences are also spending more of their sentence in prison (17 years, up from 13 years in 2001).

Britain has never really worked out what its prisons are for: is their purpose to punish offenders, or to deter people from committing crimes, or to reassure the public that justice is being served? And how does that square with our simultaneous hope that prisoners will learn to reform their ways in jail, be rehabilitated, and never offend again? To make matters worse, many prisons nowadays are run by private companies, who have the additional and irreconcilable objective of making a profit. There have been many examples in recent years of terrible mismanagement and financial scandal at privately run prisons, with many prisons reducing their workforce in order to protect profits. This leads to poor prison conditions. And poor prison conditions increase the chances of reoffending. Reoffending in England and Wales costs the taxpayer up to £10 billion per year in police and court time, NHS and social care expenditure, and so on. The idea of privatising prisons in order to save the taxpayer money and deliver better outcomes for society has backfired badly.

In April 2013, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into effect and introduced funding cuts to legal aid, meaning fewer people can access legal advice. In 2017, the Law Society reviewed the legal aid changes introduced under LASPO and found that legal aid is no longer available for many who need it, those eligible for legal aid find it hard to access, wide gaps in provision are not being addressed, and LASPO has had a negative impact on the state and society. The Equality and Human Rights Commission looked at the impacts of LASPO on people in Liverpool in 2018 and found that many participants reported significant financial deprivation as a result of trying but not being able to resolve their legal issues; some were unable to afford food, adequate housing or other essentials, while a lack of preventive legal help led to delays in resolution, and costs were passed to other parts of the public sector, including an increased reliance on welfare benefits as a result of unresolved employment issues.

Earlier this year, the government reversed the disastrous privatisation of the probation service that was introduced in 2014. These reforms separated the probation sector into a public sector organisation (the National Probation Service) managing high-risk criminals, and 21 private companies responsible for the supervision of 150,000 low- to medium-risk offenders. The reforms saw reoffending rates increase to 32%, and forced the government to bail out private providers by more than half a billion pounds. However, concerns remain about the structure and resourcing of the new nationalised probation service.

COVID has caused major disruption in the prison system. Since mid-March 2020 almost all people in prison in the UK have spent 23 hours or more out of every day locked in a small cell. People in prison have much higher rates of COVID-related hospitalisation and mortality than people in the community. The suspension of almost all Release on Temporary Licence, reduced contact with family and severely limited opportunities for employment, mean that people leaving prison during the pandemic have little opportunity to prepare for release, and face even bigger challenges than normal to rebuilding their lives.

Safety in prisons has deteriorated rapidly during the last eight years (although it has improved slightly during the pandemic). 408 people died in prison in the year to March 2021, 20% of which were self-inflicted; suicides are more than six times more likely in prison than in the general population. Recorded cases of self-harm are close to record levels, at the staggering level of 691 per 1,000 prisoners in 2020, meaning that a prisoner serving a ten-year sentence could expect on average to experience seven incidents of self-harm. Women account for a disproportionate number of self-harm incidents in prison, despite making up only 4% of the total prison population. While the recorded number of assaults has dropped by more than a third during the pandemic, they are still at about 300 per 1,000 prisoners per year (up from 200 in 2010). It is likely that many cases of assault are falsely reported by victims as self-harm, leading to an under-reporting of cases of assault. The total number of cases of self-harm is still likely to be under-reported despite this distortion.

The Centre for Social Justice has made the case for the introduction of a new custodial sentence, the Intensive Control and Rehabilitation Order, which would be served wholly in the community using electronic monitoring, curfew requirements and regular reviews before the court. The CSJ argues that “rather than being restricted to the rehabilitation courses available in any individual jail, this enables offenders to have access to the full range of interventions and programmes available in their local area… rather than surrounding the individual with countless other offenders, it enables them to be influenced by positive role models and family… and rather than solely being a burden on the taxpayer, in many circumstances it enables people to continue working during their sentences, and so to pay taxes themselves… in turn, this will allow prisons to focus their efforts much more intensively and constructively on those offenders who absolutely do need to be held behind bars topped with barbed wire… it will also mean we can truly put victims at the heart of the justice system – with stronger reparation during the sentence, and lower reoffending after it”. Reform also published proposals in 2020 for using technology to reduce reoffending. However, there is a debate around the effectiveness of technological approaches compared to more person-centred interventions.

The victim’s commissioner for England and Wales said in 2020 that rape had effectively been decriminalised, after convictions fell by 64% since 2016-7 to a record low. In the past five years, the attrition rate for rape cases has increased from 25% to 43%.

On 20 July 2021, the Lord Chancellor Robert Buckland set out a reform vision for justice, in which he announced plans for a new prison white paper later this year with a stronger focus on rehabilitation, including trauma-based approaches for women, as well as plans to use technology to support prisoners’ wellbeing and widen access to education, and a new drug strategy to stop gangs from getting substances into prisons and to help repeat offenders to kick their habits for good.

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