Wednesday, 29 April 2009

It's the court of public opinion again

Some ideas are just bound to result in confusion and disappointment. Today I read of a plan to consult "the community" on various aspects of criminal justice, not as a consultative procedure prior to enacting new laws but as an on-going part of the system of justice. The plan is set out in detail on the Ministry of Justice website (here). At first glance it looks like a lot of well-meaning guff, my fear is that it is rather more dangerous than well-meaning.

It doesn't help that the announcement is framed in management-speak twaddle, including such concepts as "proactive and accessible community-facing district/borough Crown Prosecutors" and "a toolkit ... to raise awareness and streamline processes". Digging through the nonsense, the plan for "community" consultation seems to involve three parts. First, employees of the Crown Prosecution Service will have to consult "the community" when deciding whether to prosecute in particular cases. Secondly, "Community Impact Statements" will be used at all stages of the criminal justice process. And, thirdly, "Citizens' Panels" will be involved in deciding the type of work done by those sentenced to carry out community service.

What isn't said is what "the community" means. Of course it's one of those cuddly words our government likes to use but which doesn't really mean anything and tends to divide people rather than unite them, as I mentioned a few months ago (here). What is it meant to mean in relation to the prosecution of criminal charges? Who counts as part of "the community" for that purpose? Are you disqualified from being consulted if you have a criminal record? Is there one local community when considering theft from shops and another when considering domestic assaults? And what criteria will be sued to select those to be consulted? Will it be for us to put our views forward or will they seek us out? I don't know. But my guess is that we will find special interest groups pressing their positions and the little people being sidelined. So, what of the three proposals themselves?

I have enormous difficulty with the first idea - Crown Prosecutors having to consult the public when deciding whether to prosecute and, if so, for what offence. In any given case either there will be sufficient evidence to justify a prosecution or there will not. The test to be applied cannot change just because "the community" wants more people to be prosecuted for particular types of crime. After all, in the court of public opinion it is not prosecutions that are called for it is convictions. Calls for more prosecutions where the evidence does not justify prosecution are in effect calls for more acquittals and, therefore, for greater public disappointment. No matter how reasonable it may be to demand a crackdown on shoplifting or stabbing, it achieves nothing to prosecute more people only to find that the rate of convictions falls from, say, 70% to 50%; the public perception will, quite rightly, be that the crackdown has backfired.

"Community Impact Statements" are new to me, although the Ministry's website suggests they have been compiled by the police for some time. I can understand them being useful to the police who have to be able to identify particular types of criminal behaviour that are weighing heavily on Mr and Mrs Ordinary in order to adjust their policing strategy to address topical local problem, how well they achieve this is open to debate but in principle it is sensible. How, though, does that affect anything other than policing? It can't affect sentencing otherwise you have convicted people being given potentially radically different sentences in different parts of the country which is fundamentally incompatible with the administration of justice being even-handed. I mustn't overstate that point because the prevalence of a certain type of criminal behaviour in a particular area has been a legitimate consideration for decades and can justify a slightly higher sentence being passed by way of deterrence to others. However, the scope for increasing a sentence on this ground has always been limited otherwise you can find someone being given a substantially greater punishment than his conduct warrants because of what other people have done not because of what he has done, which is wrong in principle.

The third idea might have something going for it but only if it applies in a particular way. There is sense in "the community" identifying worthy projects to benefit from the free work of those serving community sentences. In reality, of course, it will be individuals or existing groups who identify such projects and bring them to the attention of the Probation Service and I can see a benefit to creating a simple channel through which their ideas can be put forward. Selecting which projects are appropriate must remain in the hands of the Probation Service themselves who have to consider the resources they have available for supervision and the suitability of those projects for the unskilled attention of a group of spotty glue-sniffers.

If this whole scheme is pursued with any promise that "the community" will get what it wants there can only be two consequences. Either the lynch-mob will be kept happy, in which case the whole thing will collapse under the weight of the Human Rights Act before you can say "disproportionate"; or the lynch-mob will find itself ignored in which case the system will be held in even greater contempt than it is already. There is no half-way house because there is no way of preventing a promise of contentment from giving rise to a lynch-mob mentality.

Without a promise that "the community" will get what it wants, the exercise can be nothing more than window-dressing.

If we want a true measure of "community" involvement in the criminal justice system we have to look at other things. For more than twenty years criminal charges that were once heard by a jury have been transferred to the exclusive jurisdiction of the Magistrates' Court, that process has accelerated over the last decade. Although lay Magistrates are members of the public rather than of the professional judiciary they are more remote than a jury from Mr and Mrs Ordinary. A further change has taken place with increasing pace over the last five to seven years. There are some Magistrates who are full-time professional judges, they used to be known as Stipendiary Magistrates and are now known as District Judges. In most cases they sit alone without any other Magistrates being involved in the cases, hear the evidence and decide everything that has to be decided. "Stipes", as I will always think of them, generally get through cases much faster than a bench of two or three lay Magistrates and help keep delays down. Most of them are astonishingly good at their job. It cannot be ignored, however, that they are professional judges and their massively increased numbers have removed "the community" from the decision-making process in more and more cases each year.

Against that background it is hard to take seriously the pious pronouncements of the Justice Secretary and the Home Secretary that they are dedicated to the notion of the little people having any serious role in the criminal justice system.

No comments: