Swift, Certain and Fair Justice: Lifting the barriers to reform

Report authors: Ellie Covell, Strategy and Insight Manager | Callyane Desroches, Senior Analyst Tuesday 12 May 2020


Despite seventeen policy reforms in as many years, the criminal justice system in England and Wales still routinely tolerates delays and uncertainty.

Investigations are taking longer than ever and, despite some improvement in the courts, both victim and defendant are often left waiting months for a hearing. Probation services, whilst meeting the majority of timeliness targets, are still missing the mark with a string of worrying HMIP inspections. Stepping back from the immediate crisis, caused by COVID-19, our report, Swift, Certain and Fair Justice: Lifting the barriers to reform, examines what has gone wrong with the application of swift and certain justice principles in England and Wales and proposes a way forward to remove the barriers to a more effective criminal justice system in the future.


The findings will be carried forward into our new project, also funded by the Hadley Trust, which is exploring what the lessons of COVID-19 may be for the justice system.



Findings

Drawing on a range of existing data and research, and through new primary research, including interviews with victims, offenders and probation staff, we have found that:


1. Reforms to drive greater swiftness and certainty have largely missed their mark across the whole criminal justice system. This is due partly to under-resourcing across the board. Economies of scale have at times driven the agenda, over a genuinely 'Swift and Certain' approach. Target-setting has been one dimensional and has neglected quality for speed.


2. Investigations are taking longer than ever to complete, with victims waiting longer for their cases to come to trial. Magistrates’ confidence in community sentences has been undermined by the time taken to punish breaches.


3. Because the application of swift and certain justice principles has been siloed, where swiftness has been achieved, it has sometimes had unintended consequences. For example, there have been concerns that pressure to speed up courts processes have undermined the quality of pre-sentence advice and therefore sentencing outcomes. Similarly, changes to police bail legislation intended to reduce police investigation length has had the opposite effect. Our system rightly demands that swiftness be balanced by due process and fairness. Too often, policymakers have failed to strike the right balance.


4. The centralised control of courts in England and Wales reduces the scope for local innovation and the development of approaches which reflect local circumstances and meet local priorities. Despite a multi-million pound ‘transformation’ programme, the courts remain slow and are delivering certainty neither for defendants nor victims.


5. The Transforming Rehabilitation reforms have weakened the ability of probation services to provide consistency and certainty for offenders, and have weakened the local element. Service-level agreements designed to provide assurance in private-sector delivery and reduce risks, are silo'd and remove critical elements of practitioner judgement and experience.



Conclusion

'Swift and Certain' justice programmes have been proven to be effective in the reduction of reoffending in some areas and in certain contexts, such as with low-level non-violent offenders who are driven by addiction and who benefit from judicial oversight. However, recent evaluations suggest there are other critical success factors (beyond timely and consistent sanctioning) required to effectively deter offending. Crucially, swiftness must not become a substitute for procedural fairness. The system must be swift, certain and fair.



Recommendations

1. The police, CPS and Judiciary should work together to strengthen and expand the range of pre-court avenues for tackling offending, for example, through broader use of civil orders or out of court disposals and diversion. Where necessary these alternative options should be underpinned legislatively.

2. The Home Office and Ministry of Justice should establish a joint task-force to review why ‘offence to charge’ times have increased and set out a joint action plan for the police and CPS to take action once these agencies have started to return to business as usual following the COVID-19 pandemic.

3. The last decade illustrates how hard it is to drive swiftness and certainty from the top-down. We recommend a more devolved approach, whereby PCCs and directly elected Mayors are given responsibility (and where possible, budgets) for driving greater swiftness and certainty locally at every stage of the ‘offender journey’.

4. The end of Transforming Rehabilitation is an opportunity to ‘reset’ the relationship between probation and the judiciary, improving the quality of pre-court advice and making it easier to bring offenders back to court when/ if they breach community orders.

5. The new Royal Commission on Criminal Justice should commit to reviewing swiftness and certainty with a focus on the efficacy of existing targets to ensure existing measures are appropriately balanced with the principle of procedural fairness.


Next steps

We are taking findings from this research forward into our new project which aims to understand the criminal justice system's response to COVID so far and help support agencies as they seek to manage and ultimately move beyond the pandemic.


If you have thoughts or comments on the findings set out above and/ or are interested in contributing to our new COVID-19 research please get in touch: callyane.desroches@crestadvisory.com.

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