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Three questions on criminal justice



Harvey Redgrave, Chief Executive

Thursday 2 February 2023

As part of a new series of blogs, Crest Advisory will be posing some of the big policy questions in the field of crime and justice. The first blog, by Crest Chief Executive Harvey Redgrave, sets out three challenges facing the criminal justice system in 2023.

The criminal justice system (CJS) in England and Wales starts 2023 in arguably the most precarious state it has faced in over thirty years. Fewer offenders are being charged and prosecuted. Victims are having to wait longer than ever to see justice served in the courts. Prisons are dangerously overcrowded and serious offenders are not being adequately supervised.

These failures are less visible than those of other public services; far fewer people have contact with the police, courts and prisons than they do with a GP, hospital or school. But they matter, for two reasons. First, if the justice system fails to offer any deterrence, offenders are likely to be emboldened to commit more crimes, putting individuals and communities at greater risk. Second, in order to function effectively, our justice system relies on the willingness of victims and witnesses to report crimes and give evidence in court, which in turn requires them to trust the system to seek justice on their behalf. Once they begin to lose that trust, the risk is that the system rapidly loses public consent and, ultimately, grinds to a halt.

As we start the new year, there are three questions in particular that deserve consideration:

Is there a need to re-think the role of probation?

A series of reports by the Chief Inspector of Probation, Justin Russell, has revealed grave, underlying problems with the probation service. Read together, the reports suggest there’s a systemic inability to accurately assess and manage risk, meaning dangerous offenders are too often left without the right level of supervision. In the cases of Joseph McCann, Damien Bendall and Jordan McSweeney, the consequences for victims were catastrophic.

The chief inspector makes clear that these failures need to be set against the backdrop of a workforce that is struggling with ‘excessive workloads’ and challenges in respect of staff sickness and unfilled vacancies. Reading between the lines though, it seems that there is a wider concern that the service lacks clarity as to its overriding purpose: caught between a traditional ‘social work’ model (which emphasises rehabilitation) and the growing panoply of public protection obligations, such as the new Serious Violence Duty (which has an emphasis more on risk management and enforcement).

The way the probation service is currently structured arguably does not enable it to meet either purpose. The policy levers which underpin rehabilitation - stable accommodation, employment, education, treatment - largely lie outside of the CJS (mostly at a local level). And when it comes to public protection, the police may well be better trained and equipped to understand and manage risk than probation officers steeped in a more ‘social work’ tradition. Is there a case for carving out and localising the rehabilitative function of probation, while handing the public protection obligations to a new or different agency?

Given the recent history of policy confusion in this area (with probation part-privatised then brought back entirely into public ownership seven years later), it is understandable why some might say that this isn’t the right time to think about further structural reform. But ploughing on with the current model appears, if anything, more risky, given the state of the service.

That is why Crest is pushing the case for a strategic review of probation. It would seek to better understand how the mission and role of the probation service have changed; which skills, knowledge and capabilities are required to fulfil its mission; and what the best organisational platform is to deliver it. If you’d like to know more, please get in touch.

Does the rising prison population mean we need to start considering radical alternatives?

It has gone largely unnoticed that the Ministry of Justice (MoJ) has now baked into its future planning scenarios that there will be a significant rise in the prison population. According to the MoJ’s latest projections, the number of prisoners in England and Wales will increase by around 17,000 to 98,500 by March 2026, which would represent the steepest rise since the mid-1990s. This appears to be largely a result of the police recruitment drive, which is expected to increase the number of suspects charged, with knock-on effects for the prison population.

Given that the current prison population (82,538) is already close to operational capacity (84,478), and that overcrowding remains a challenge in most jails, particularly in local and Category ‘C’ training prisons where the majority of inmates are held, there is likely to be significant pressure on places over the next few years.

The government has committed £315 million of capital funding towards improving the condition of the existing estate, which may free up some additional capacity. Ministers have also committed to building 20,000 new prison places by the mid-2020s. Modernisation of prisons is to be welcomed; ensuring there is sufficient capacity is very important too. But published details of what is being built and when are unclear and the MoJ’s track record in this area is not exactly stellar.

Perhaps something will turn up and the MoJ will muddle through. In November 2022, it activated ‘Operation Safeguard’, an emergency measure which will allow the Prison Service to use police cells to hold up to 400 prisoners temporarily because there aren’t enough cells in male local prisons. But such schemes are not a long-term solution. Ultimately it is difficult not to conclude that unless more radical alternatives can be found of removing people from custody altogether the system is heading for a capacity crunch.

If any MoJ officials are reading this, they are welcome to get in touch with us: Crest have published a number of reports setting out a range of pragmatic policy options for reducing the prison population, including the abolition of short custodial sentences and greater use of out-of-court disposals.

Does the new Victims Bill go far enough or is it merely window dressing?

The Victims Bill was published in draft last May, complete with explanatory notes and related documents. The bill’s purpose is “to improve the end-to-end support for victims of crime so that they get the support needed to cope and recover from the impact of crime and feel able to engage and remain engaged in the criminal justice system”.

However, the proposals have been met with scepticism. Dame Vera Baird KC, the former Victims’ Commissioner, pointed out that the vow to enshrine the principles of the Victims’ Code in primary legislation will be meaningless without corresponding responsibility and accountability mechanisms to ensure criminal justice agencies deliver against them. Similarly, the Commons Justice Committee commented in September last year that the draft bill does not appear to do any more to enshrine the rights of victims than is already provided for in existing legislation and does little to improve agencies’ compliance with the Victims’ Code. For example, under the bill, the onus is still on victims to claim rights they are often unaware of, rather than requiring the relevant agencies to deliver them.

If ministers are looking for inspiration, one country they might consider learning from is Australia, where a victim is an active and valued ‘participant’ in criminal justice proceedings. It gives victims a distinct legal status separate from that of the wider public; the delivery of their rights is an inherent requirement and core function of the system. The Australian government has also recently passed an ‘affirmative consent’ law to give victims and survivors of sexual offences stronger protections - shifting the scrutiny onto perpetrators. Of course, making the CJS in England and Wales more victim-focused would require change at a number of different levels, not just the law.

Given rising levels of victim attrition, where the withdrawal of victims from criminal proceedings has contributed to falling charge rates, it would be a surprise if the MoJ let the opportunity for serious reform pass by.

The questions in this blog are not exhaustive: they are just the start of the kind of far-reaching conversations we need to have in order to bring about improvements in the criminal justice system.

Tinkering at the edges, doing what we’ve always done, more of the same simply won’t cut it.


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