Courting Trouble

There’s much of interest in the new Centre for Social Justice (CSJ) Report “What happened to the Rehabilitation Revolution? While the opening chapter’s title - “The recent history of disappointing progress”- grossly understates the scale of the current penal crisis, several of the initiatives proposed by Jonathan Aitken and John Samuels are surely prerequisites for resolving it.  Improving the numbers, training, status, pay and conditions of prison officers and fixing the failures of the remodelled probation service are now widely agreed to require urgent attention.  Ending the injustice faced by tariff expired IPP prisoners is also long overdue. If CSJ’s political connections can ensure further action in these areas, so much the better.

But what of the more controversial of the report’s ideas, in particular the expanded role it envisages for judges and magistrates.  CSJ propose that courts should monitor and review the sentences they impose, authorise recalls to prison for offenders in breach of their licence requirements, and hear applications both for early release from prison and for limitations on the impact of criminal records. John Samuels has been a longstanding champion of problem solving courts and is understandably frustrated at the mixed messages from government about their prospects.  But with tight budgets, court closures and digitisation, is the judiciary in any kind of position to take on these additional tasks? 

Despite some heroic cost benefit assumptions- based it has to be said on experience in the very different context in the USA-, there’s no doubt that increasing court lists would require something in the way of upfront funding. In his final annual report Lord Chief Justice Thomas wrote recently that “the just, effective and timely delivery of criminal justice remains of real concern to the judiciary”. Taking on more duties is hardly likely to alleviate such concerns.

There’s a broader question too about how far courts should become involved in the implementation of sentences.  There is a strong case for courts to decide whether people who don’t comply with probation conditions should be returned to jail. But there is a balance to be struck between judicial and executive responsibilities in the management of offenders. The continental system of penal execution judges may not be desirable let alone affordable in England and Wales.

Rather than invest in additional layers of judicial accountability, the government might do better to enable more cases to be kept out of court altogether.  In a forthcoming report for Transform Justice, I’ll be arguing that there is scope for diverting many more low level offenders.   Since 2010, the numbers of convictions and out of court disposals have both fallen sharply but while the former have gone down by 12%, the latter have declined by 47%.  Less than a fifth of cases were dealt with out of court last year compared to more than a quarter seven years ago.  Increasing numbers who appear in court get fines and discharges – 85% of summary offences and 30% of either way offences. Why not deal with some of these more cheaply and speedily without prosecution?  Re-offending rates are no worse and victims somewhat more satisfied. David Lammy’s report last week argued that greater use of suspended prosecution- along the lines of  Operation Turning Point in the West Midlands -could help to reverse the gross racial disproportionality that scars our system. But reviving diversion would benefit all.  

Suspended prosecution is in fact part of the government’s long term plan- seven years and counting in the making- for streamlining out of court disposals. But to work as intended, police and prosecutors will need to be able to point people at rehabilitative or restorative activities that can help them stay out of trouble – whether it’s cutting down on drinking, keeping their temper, or finding work.  Funding such approaches with funds released via fewer prosecutions is the way forward. Not problem solving courts but problem solving, out of court.