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
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.