Commercial Misjudgement?

In May, I raised concerns about an income generating scheme established by the Magistrates Association (MA) which involves private Community Rehabilitation Companies (CRC’s) investing in the MA Education and Research Network. I argued that the MA -which represents the 23,000 lay justices who deal with 90% of criminal cases in England and Wales- should not put itself in a position where the content of any guidance, information or advice it produces could be seen to be influenced by commercial considerations.

Yesterday the Network was officially launched at the Supreme Court. A brochure describing the plans for the Network does little to allay those concerns.

It is not a problem with research itself. The MA’s Royal Charter specifically permits the organisation to “promote or undertake study or research and disseminate the results of such research”. It is the invitation to become an affiliate of the Network which raises a potential conflict of interest for the MA.

Affiliates are offered- presumably in return for funding - a variety of benefits. These include:

* A conduit for valuable research information which may assist in the “development of affiliate businesses or organisations”

* Networking with other affiliates leading to information exchange, “helping to identify commercial trends”

*  The ability to commission additional research projects “and own the results” and

*   Opportunities to host seminars or functions in Association with the Network “to promote your organisation”.

I understand that at least two CRC’s have become affiliates. It is easy to see why they and other private sector organisations might have an interest in doing so. Only five years ago, the House of Commons Justice Select Committee reported that “the Magistrates’ Association raised concerns about the impact that introducing a profit motive for reducing re-offending may have on meeting the core aims of the criminal justice system”. The MA’s then Chair had given evidence that sentencers must have confidence that the sentence will be properly and effectively delivered and they “did not believe it should be driven by profit”.  What better way of winning round a sceptical stakeholder than helping to fill a hole in their finances?  

Moreover in order to help ensure a prosperous shape for future criminal justice developments, under what better auspices could private companies showcase their technological innovations – the focus of the Network’s first year’s work?

The MA will no doubt claim that the research undertaken through the Network will be independent and rigorous and will test the claims for these and other products, programmes and measures. Indeed, the Network has an impeccable academic consultant.  She will presumably ensure that the Network’s research will in all cases be peer reviewed and published, (even when the results are “owned” by the commissioning affiliate). Otherwise we may be in in for the kind of controversy seen in the pharmaceutical industry about access to data and research producing negative as well as positive outcomes.

The MA will claim too that the Network is an independent company and it is- a wholly owned subsidiary of the MA set up, in part at least, to raise funds for the association.  The Network is chaired by a former MA Chair and the Company Secretary is the current MA Chief Executive.

The objects for which the Magistrates Association is established and incorporated are to promote the sound administration of the law, “including, but not restricted to educating and instructing Magistrates and others in the law, the administration of justice, the treatment of offenders and the prevention of crime”.  Its Charter makes clear that the income and property of the Association, however derived, shall be applied solely towards the promotion of those objects.

These provisions may provide the legal wriggle room for the arrangements that have been put in place for the Network. But one is left wondering if the MA has really considered that it looks to be lending its name to the expansion of business opportunities for private companies in criminal justice?