Insights Perspective
Joe Caluori, Head of Research and Policy
Tuesday 26 January 2021
The approach the government takes to repairing our broken criminal justice system is a matter of public interest, yet debate about the criminal justice system (CJS) is often conducted solely within insider circles. How can we reimagine a justice system post-Covid-19 which is fit for the future - but reflects the views of the public it is there to serve as well as CJS insiders?
In response to the Covid-19 pandemic, Crest began a research project, funded by the Hadley Trust, last April to measure the impact of Covid-19 on the criminal justice system and explore whether the responses of different parts of the system to the pandemic hold any lessons for the future of the criminal justice system.
The justice system is opaque for most people, who do not interact with the police, courts, probation or prisons in their daily lives. Yet when they or close friends or family do experience the justice system as defendants, witnesses or victims, the experience can be life-changing. For this reason, we decided it was essential that our research should bring the views of the general public into this debate, on Covid recovery and rebuilding a justice system fit for the future. In October we brought together a virtual ‘Citizens’ Jury’ composed of twelve members of the public ‘good and true’ drawn from across England and Wales, broadly reflecting the demographics of the UK.
We presented our Citizens’ Jury with evidence in the form of expert briefings, giving them an understanding of the working of the CJS and some of the issues challenging the system pre-Covid and as a result of the impact of the pandemic. This evidence enabled our jurors, who had little prior knowledge of this topic, to approach it as a group of citizens rather than merely on the basis of personal experience. Conducting a deliberative research process over Zoom was challenging, but there were also some advantages, such as the ability to move small groups into breakout rooms to consider issues in more detail.
This blog summarises the views this group gave us and compares them, where relevant, to the findings of a poll of 1,663 people we conducted earlier this month asking for views on waiting times between offence and trial verdict, current and potential use of technology in the justice system and the right to a jury trial. The findings of this poll are contained in our final report.
"If the supermarket can open why can’t the courts?"
“I think the criminal justice system was a bit of an afterthought over the last kind of eight, nine months. I haven’t really heard much about it. You’ve heard more about schemes to restart the economy rather than something that is quite pivotal to the actual wellbeing and safeguarding of the general public as well, which is offenders and people who have historically offended, and are being considered for release. The point there is that it would be worth investing in.”
The jurors were shocked when they learned of the state the criminal justice system (CJS) was in, before and during the pandemic. In particular, they were surprised by the scale of the closures of criminal courts in England and Wales in the last ten years and how few Nightingale Courts had been set up (at the time of the Jury, only six were dealing with criminal cases). They were appalled by the extent of the court backlog and hearing our modelled impact of Covid-19 on the backlogs in the justice system.
There was incredulity that the situation in the courts had been allowed to deteriorate so rapidly and recover so slowly when other parts of the economy such as supermarkets, schools, pubs and restaurants, in which social distancing seems more challenging, had been able to find ways to function effectively.
“I just don’t think they’re [the government] really thinking of the bigger picture here. And for me, the bigger picture is how it’s going to affect everyone in the long-term.”
We then asked the jurors to work in groups across four breakout rooms; police, courts, prisons and probation. Each group moved between each of the four breakout rooms so the jurors were able to spend time focused on these various areas of the CJS. Their brief was to identify the key issues in each area and identify the principles that should guide the government as part of a Covid-19 recovery plan and in transitioning to a future CJS.
The police: a greater emphasis on highly visible community policing
The police have played an important role during the pandemic in policing the public health regulations from the lockdown to social distancing measures as the country regulated the spread of the virus. Crime fell during lockdown and so there was less demand on the police, however, the police uplift coupled with an economic downturn will likely mean that recorded crime rises. Our jurors had broadly positive views of how the police had behaved during the lockdown, and a feeling that they were left with an impossible job by politicians, who themselves were not observing the rules.
“I think we have clear examples of that over Covid with them [the police] not knowing who they could and couldn’t stop and [ask] about masks, no masks, shops open, shops closed, what essential items you can and can’t buy. There were loads of cases of police really not having been given the right training or the right briefings and getting a bit carried away, or not doing enough.”
This was similar to the findings of our separate project on the impact of Covid-19 on policing and its response to it which has examined public attitudes to enforcement of the lockdown.
One change to policing methods post-Covid favoured by our Jury was a strong desire to see more neighbourhood policing, done in a way that is tailored to localities. Jurors felt this would enable the police to do more diversionary or preventative work, keeping more people out of the CJS. Visibility matters a great deal - our jurors felt that in order to do this preventative work the police should be highly visible in crime hot spots. They also felt that because the police seem to be required to perform a wider range of activities than used to be the case, they should work closely with other agencies who offer support services.
“[prevention] is going to require a physical presence as well. If we had a physical presence, if you felt there were police or people in a police role on the streets. That’s a big deterrent. On the streets as in you see them around.”
“I think to earn respect, they’ve got to deserve it ... community policing, I think is really good, when it’s good. And they do take the context into account … I think it’s quite important to have a context of what’s happening in that area.”
“I’m a believer that resources should be channelled more generally towards fixing the community, rather than sending in a cop to deal with the problem that arose out of a broken community, so on a more general level of trying to solve the issue so that we don’t have to send in a policeman … there should be way more attention in both countries on fixing the issues rather than putting money into responding to the broken issues.”
Courts: reforms must guarantee fairness for victims and defendants alike
There is a significant problem presented by the backlog - victims and witnesses must wait longer to see justice done, defendants are subject to a sustained period of stress (some of whom are held in custody), and the public may lose confidence in the ability of the courts to deliver justice. What are the priorities for the court system to ensure that backlog is brought down? Should we be sacrificing elements of justice in order to bring it down?
The use of technology was not viewed as a panacea by any means. Whereas it was seen as a viable solution for minor offences, preliminary hearings and most business in the magistrates' courts, our Jury expressed serious reservations about whether it was ever appropriate to use virtual hearings for trials of serious offences. These objections centred on fairness but also on a feeling that the theatre of a physical trial is an integral element for trials of serious offences, and that there is an intangible element that adds a layer of gravity and perhaps also sensitivity to body language and non-verbal communication.
“Certainly some of the small cases … it just seems arcane that we’re still on this system that costs so much money. And we’re fighting further and further behind with the amount of cases.”
“If we can use it [tech] now and it’s working, then why don’t we continue with it. If we’re going to save some money.”
“How can a judge empathise with a victim or a defendant if they can’t even see the full body language. People could be in their bedrooms. And some of the cases on the phone as well.”
“I just think body language and that kind of feeling or tension you get in the room. Like if you know someone’s telling a lie, you can’t necessarily see it on a screen, but if you’re in their presence, you get a feeling. That even though you haven’t got all the facts, you think I’ve got a hunch. So those telltale signs may not always translate.”
Support for greater use of technology in some circumstances was found also by our YouGov poll, which showed 43% supporting virtual hearings (note: not necessarily the same as virtual trials) with 27% opposing them.
There was no appetite at all for limiting jury trial - which was viewed as a foundational element of our justice system and an essential guarantee to ensure fairness.
“If I was accused of something, I would feel really worried about the removal of a jury trial and not having that option there for me, because I feel like the jury is such an integral part of our legal system, having society weigh in, and that it’s not completely a closed-off system where it’s the judge who goes through a million cases a day, and then you get so in your way, you get so entrenched possibly in a certain behaviour or certain mindset about it. So I think the public’s role in that is so important.”
“A justice system is an equal right on both sides of that argument. There’s fair representation that is required for the offender as much as there is for the victim. If someone is guilty, that justice should be evaluated effectively by an independent group of people.”
“We’ve fought for that over the years, to have trials by jury.”
“You’re running such a danger, the more power you put in less people’s hands. You’re narrowing it down, at least by having a jury of 12 people, you’re hoping to get a cross section of society. If you reduce it down to one person decides the fate of one person, there’s so much bias. There’s so much social bias, racial bias, economic bias that I think you’re really not going to get a fair trial.”
The views of our Jury were validated by our YouGov poll - which found that almost half of the people surveyed (46%) were uncomfortable with limiting access to jury trials, compared to just over a quarter (28%) who were comfortable with the proposal.
There was also a concern that bringing about too many changes in order to speed up trials and reduce the backlog would increase a sense of inequality and unfairness for those in affected trials. It was also strongly felt that when serious offences are tried, victims need closure, and this is best achieved in a courtroom.
“I would be worried if I was accused of something and I was going through a fair trial, and it was being sped up and things were being changed. And it hadn't necessarily been a method that had been proven or worked. And you’re like this guinea pig in this new sort of sped up legal system. I’d be really concerned at least from the perspective of being a man or woman being accused and tried for something.”
The Jury was sensitive to the need to bring the system back into a balance so that delays, which are injurious to victims and defendants alike, are minimised and justice can be done, allowing people to move on with their lives. But there is unease about going too far too fast in streamlining trials because of the pressure to reduce the backlog. Where it’s possible to use technology for minor offences or for administrative elements of trials this is acceptable if it saves time and money - but trials of serious offences must retain the same gravity they had pre-Covid-19.
Prisons: tough love
The pandemic will be with us for a long period of time and if the courts recover, more pressure will be felt within the prison estate. What should the government do to balance the welfare/rehabilitation of prisoners at the same time ensuring that an outbreak within the estate is prevented?
Our jurors felt that given the impact of the pandemic and the projected increase in the prison population within the Crest modelling, it was right to look for ways to cut the prison population, but more by reducing the use of short sentences through out of court disposals than early release or reversing the tariff inflation seen in recent years. The consensus view was that people who commit serious offences should receive long sentences.
“They could be … living not far from you and you don’t really know the history. That’s really scary, like they’re building hospitals for Covid. Why don’t they build prisons somewhere else on some land?”
“If it’s a lesser crime, no risk to a person, release them, community service. Let's make sure it is meaningful to the community though.”
“Putting people back into the community, I think there’s got to be a level of severity that the community is prepared to accept in terms of those prisoners going into that community. It’s got to be incredibly carefully managed.”
However, it was also important to our jurors that prisoners serving sentences were able to access learning and leisure resources and see family and friends during lockdown - otherwise their incarceration may worsen their behaviour. There were concerns about conditions in prisons during lockdown, especially the impact on the mental health of prisoners arising from being locked down 23 hours a day.
“We’ve seen the rise of mental health in people that have to be at home, never mind being in a cell 24 hours a day … that’s going to mess with anyone’s mental health, no matter who you are. That will surely make it more difficult for them to be rehabilitated and for them to continue life as normal once they’re released. Because they’re going to come out worse than before they went in”
“You know people do need to see people if they can’t see them in the flesh. Just even seeing them on Zoom ... Better than nothing.”
“It’s sad that they should be denied so much. They’re serving their sentence, they’re doing what they were imprisoned for. But there are certain things … okay they might not be able to go swimming or to the gym but their educational and outside time, I think should not be limited. They need a life, don’t they? Otherwise we are going to end up with people leaving prison that have got a mental illness.”
Tech is seen as a solution to meeting the needs of prisoners in seeing family and friends and accessing learning resources as long as special restrictions are in place due to the pandemic.
“Has there been steps saying “well, teachers or health professionals are going through electronic systems, rather than physically going into the prisons.” It strikes me that the more people you can make digital, you only have to worry about cleaners and guards and staff based on physical attributes.”
“If I was in charge, I would replicate what schools are doing and use Teams for education, which can be accessed anywhere. And as a mental health worker, I do all my work on Zoom right now … I think they could still access these mental health organisations and things like that via Zoom or Teams, or technology with their family. I think that’s really, really important. But I also do believe that they should be going outside for fresh air.”
It is clear that our jurors are comfortable with policies to reduce the prison population, but their reservations show the communication challenge the government will face in showing alternatives to incarceration being tough, safe and effective. However, prison reformists would no doubt be disappointed by our jury’s firm belief in the value of prison, and of imposing long prison sentences for serious offences. There is little appetite for reversing tariff inflation. They do however believe that the experience of serving a prison sentence should reduce the likelihood of reoffending, and there is a better chance of this if prisoners have better access to education and learning resources, healthy activities and visits in order to manage their mental health.
Our YouGov poll suggests there may be an opportunity to maintain public support in the system whilst reducing the use of short sentences through greater use of electronic tagging. Just over half (52%) said they would “strongly” or “tend to” support the use of community sentences with electronic tagging as an alternative to prison terms of six months or less - with 24% opposed to the idea.
Probation
Covid-19 has led to a backlog of rehabilitation as offenders have been unable to complete their sentence requirements and prisoners face an uncertain future when they’re released. How should this be resolved? How can we support prisoners being released into a society which is focused on dealing with the Covid-19 pandemic?
Our jurors discussed whether use of technology to allow for greater remote supervision was acceptable and effective - and so whether probation services could make greater use of technology post-Covid-19. There was little objection to remote supervision where offenders have access to their own devices but divergent views on supplying probationers with hardware such as tablets, laptops or smartphones supplied by the state. Yet the jurors could think of multiple benefits for probationers from making better use of technology which would aid their rehabilitation beyond their instrumental use such as keeping appointments.
“Technology is publicly funded. And I’m not sure that I would feel comfortable that our money, our tax money, is actually being diverted to equipping people with the latest kind of gadgets. There could be far more effective ways … one of the focal points for me is the rehabilitation of individuals. I think there’s a right for people to be rehabilitated and effectively so. So it’s about ways of facilitating that rehabilitation. I don’t think mobile devices aid that rehabilitation.”
“It’s got to be more beneficial to be in contact, even if it’s not, in the flect, but the fact that they can speak to somebody or be taught how to use the tech. That’s the other thing, once they know how to use it and they’ve got WiFi in the house, I suppose everything else will kind of have a knock on effect, but I think it would be beneficial for their wellbeing. If they’re able to see something, talk to somebody more often.”
“I work in mental health. And I’ve adapted to Zoom because we’ve had to, and it's surprising how well people do adapt. And I think if that could be an accessible thing. And I think if you could have a signpost of services that work, counselling is on the computer, there are services that have really shifted fast, and I think somebody needs to have that knowledge base, because I can imagine it being really isolating coming out of prison.”
“Or to enable an ex-addict to get on Zoom, so he can do AA every week and that’s life-saving for that person potentially. Stop them from going out and doing something terrible because they need heroin or something.”
Our jurors expressed concern that there are not enough probation staff across the country to deal with a massive increase in demand arising from greater diversion from prison for minor offences.
“It comes down a lot to money, doesn’t it? You need more probation officers to be available to meet these people to rehabilitate them. There must be a lot of prisoners in prison who want to be rehabilitated in areas they want to be. And I think if given the chance to do it, they’ll accept it. But obviously it’s going to depend on the number of probation officers that are available as well.”
There was greater interest in electronic tagging as an option for a greater number of people to be used as a tool as part of a strategy to reduce the prison population, yet a feeling that it was important to have a human at the end of the phone in order to meet more complex needs.
“To get people to do things they want to do with education or mental health. There’s got to be somebody there to help them and be available at all times.”
There was some discussion about whether unpaid work could be carried out virtually, but overall the Jury felt that the discipline and routine of getting up and out, even for basic manual work, would be beneficial.
“If it’s going to work on a building site, then at least they can go out, do it and come back in.”
“Even if you’re in a nice house, you feel lousy when you don’t leave the house if there’s no variation in your day… just if you’re a regular person. So somebody with mental health who is struggling harder than we are and has come out of prison.”
Our jury recognised the benefits of greater use of technology to aid probationers in making changes in their lives by being able to access resources and support more readily, and the wider benefits in terms of seeking work and managing benefits, online banking and household bills by becoming comfortable with technology. It’s clear that this is a fruitful path for the government to take but in doing so, concerns about public safety and the rigour of monitoring must be clearly addressed.
Our YouGov poll also showed the same reluctance - with 34% expressing support for carrying out probation visits remotely for lower-risk offenders, with 35% against - and a high level of uncertainty with 32% either not expressing a view or answering ‘don’t know’.
Radical solutions?
We asked our jurors to complete a short survey before and after the session to get a read on their personal attitudes towards the CJS and how, if at all, their views changed after participating in the Citizens’ Jury. One part of the survey looked at their priorities before and after their deliberations.
As the prioritisation exercise here illustrates, our Jury’s top priority is diverting people out of our courts, using fines, cautions, restitution and community rehabilitation. This will perhaps surprise those who expect a more knee jerk ‘tough justice’ approach, but it reflects the desire of the jurors for prison to be a purposeful experience and fears that a rising prison population will exacerbate problems.
Less surprisingly, our Jury placed a high priority on recruiting more police officers and deploying them in the community to prevent crime. However, it is important to note that this prioritisation exercise was a forced choice, just as the government will have decisions on where to allocate funding - and proposals to improve the prison system and probation lose out.
Prioritisation exercise: Jurors were asked to rank each statement, 1 being a top priority and 13 being a low priority. They completed this exercise twice, before and after the Jury, to see how their priorities changed
We also found that the jurors' opinion on the CJS shifted in some cases following the Jury. For example, jurors were slightly more likely to agree the CJS was underfunded after the session. Likewise, they were more likely to favour preventative measures to reduce demand on the CJS, and that less people should be given short sentences in prison after the session. This suggests that armed with the right information, the public will modify their pre-existing beliefs, opening the door for the government to consider radical solutions to fix our broken CJS. However, in some respects, our jurors' views remained constant. For example, they expressed a clear belief before and after the jury that those who commit serious offences should not be given an easier ride so the ‘system’ can mitigate the impact of Covid-19.
Attitudes exercise: the jurors were asked to respond to a range of statements on the criminal justice system, before and after the session. The direction of the arrow indicates how the attitudes of the group changed
Conclusion
The views of our Citizens’ Jury offer a challenging verdict on Covid-19 recovery and the future of the CJS. Their views do not fit with stereotypically reformist or hardline views, presenting a combination of beliefs. On the one hand, they feel strongly that the traditional principles of our justice system must be preserved at all costs - and that punishment for serious offences must be swift and certain, to the satisfaction of victims.
Yet, on the other hand, they also expressed a clear belief that the system must work more effectively and efficiently, and that to do that it should focus on those who have committed serious offences, doing far more to prevent criminals entering the system for minor offences, disrupting the conveyor belt effect.
“I think serious offences should be treated seriously.”
“If [longer sentences] that stops people commit those crimes, because they know they have to serve that sentence, surely it’s going to reduce that crime level overall.”
The findings of our YouGov poll reflect this complexity. Whilst almost half of people are uncomfortable with limiting the right to trial by jury, and a plurality of people are opposed to conducting probation virtually - there is support for using technology to make the system more efficient. A clear majority (54%) support allowing the police to take crime reports online in some cases, rather than on the phone or in-person - 47% support the use of virtual courts, with 27% opposing this - and over half (52%) support greater use of electronic tagging as part of community sentences instead of short prison sentences.
Retaining - or rebuilding - public faith in the CJS will be a balancing act between making decisions based on efficiency and effectiveness, with striking the right tone on the moral basis of justice and ensuring public safety.