Monday 22 July 2019
DOWNLOAD (PDF): How swift & certain principles can impact outcomes in the CJS
“Justice delayed is justice denied”. So opened the Coalition Government's "Swift and Sure" White paper in 2012, drawing on a principle laid out in the Magna Carta written nearly 800 years before.
The idea that a well functioning justice system would indeed be swift, and punishment certain, seems like a common sense principle. Over the past 15 years there has been a growing effort to embed these principles within the criminal justice system.
This effort has been hampered to an extent by a siloed approach to application, sometimes leading to conflicting implementation between and within CJS agencies. We also have not seen evidence that they have actually delivered better outcomes and policy-makers have struggled to agree on what they mean by ‘swift and certain’ justice. The principle has - in practice - been invoked to build support for a number of different objectives. The most prominent of these have been:
Restoring public confidence in law and order
In the wake of the 2011 riots, ‘swift and sure’ justice was intended to reassure the public that the police, prosecutors and the courts were dealing with cases promptly and handing out appropriate punishment in a visible demonstration of the rule of law, as set out in the 2012 White Paper on Swift and Sure Justice.
Academic evidence suggests that the swift and systematic application of proportionate punishment is particularly effective in reducing the reoffending of drug or alcohol addicts. This is based mainly on American studies focusing on low level prolific offenders1. However, this discreet evidence appears to have led to a more general assumption that justice needs to be swift to be effective. In practice, this has largely applied to punitive processes, for example in probation where timeliness targets were set under Transforming Rehabilitation contracts, for example restricting the number of days between a breach of an order and the offender appearing in court (8-10 days).
Improving efficiency and delivering better value for money
Delays in the criminal justice system are frequently associated with systemic failures haemorrhaging money - and a focus on efficiency and effectiveness has been co-opted into a discussion about value for money and increasing use of technology. This can be traced back to the 2012 White Paper, where swift justice was intended to improve efficiency, in other words “maintain(ing) the quality of (CJS) services while reducing their cost”.
Improving victims’ experiences
Improving the experiences of victims and witnesses has been a priority for successive governments with timeliness considered a significant factor in this process. The Victims' Code of Practice sets out timeliness expectations for a number of criminal justice agencies, including speed of referral to victims service by the police (within 24 hours of reporting) and speed of communication throughout the criminal justice process (e.g. informed of offender sentence within 24 hours).
The fact that a third of all victims and witnesses drop out before the offence has even been charged suggests that attention to the victim’s experience has not yet permeated the system as a whole. Although strategically agencies agree that the victim is at the heart of the process, we do not have a detailed understanding of why attrition rates remain high.
Our analysis suggests that swiftness has been favoured over certainty, most likely because it is easier to measure timeliness, and also because of a concern that targets around ‘certainty’ could lead to unfair outcomes for suspects and offenders. In addition, there is evidence of an underlying assumption that swiftness actually leads to certainty. The focus on timeliness in policy reforms across the criminal justice system has translated into a myriad of processual targets for police, CPS, courts, and probation services, such as response time targets, reducing the number of hearings in a trial, commencing a trial within 6 weeks of charge, pre-sentencing reports to be completed in a single day.
Every aspect of the criminal justice system is under significant pressure. Detection rates were described as “woefully low” by Cressida Dick, the Commissioner of the Metropolitan Police in June 2019. This was echoed by Sir Brian Leveson in his final speech as head of criminal justice for the judiciary, saying the number of crimes are going unprosecuted is a cause for ‘enormous concern’. The state of prisons remains “deeply troubling” according to Peter Clarke’s (HM Chief Inspector of Prisons) latest annual report. Probation services face ongoing upheaval. However, it is unclear what role, if any, the principles of swift and certain have played in creating the problems the criminal justice system is now facing and what role they could play in providing solutions.
As a result, Crest has set out on a programme of work to examine how swift and certain principles can inform conceptions of effective justice. We define ‘swift and certain’ justice as “where processes are dealt with in as timely a manner as possible and sanctions are clear and definite”.
Our initial research suggests that ‘swift and certain’ principles interact with a number of other factors, for example communication between agencies, victims, and the changing profile of offenders, when determining the effectiveness of interventions. We believe that the severity of a punishment also interacts with the offenders’ and the public’s perceptions of ‘certainty’. Furthermore we suggest that there is an additional critical factor missing from the picture - quality assurance. For example, while CRCs generally meet timeliness targets, the quality of interaction has often been decried as inadequate in inspection reports.
We understand that swiftness and certainty will manifest in different ways for victims and offenders across their journey, and also differ by type of offence. A low level prolific offender who has committed yet another shoplifting offence may be more responsive to one method or delivery of sanction than a violent domestic abuse offender. As a result, we will gather evidence from the field to try and answer the following questions:
What behavioural insights can we harness to inform the system’s targets? Does any systematic evidence currently underpin them?
How could we implement swift and certain principles in a way that avoids turning the system in a target-driven machine with no place for professional discretion or quality engagement with both victims and offenders?
We will be continuing this work through the summer. If you are interested in the principles of swift and certain and how they interact with other factors to drive effective justice, please get in touch.
1. (e.g. Curtis et al (2018) Swift, certain and fair justice: Insights from behavioural learning and neurocognitive research Drug and Alcohol Review, Vol. 37, pp.S240-S245; Kilmer et al (2013) Efficacy of Frequent Monitoring With Swift, Certain, and Modest Sanctions for Violations: Insights From South Dakota’s 24/7 Sobriety Project).