House of Commons - Cutting crime: the case for justice reinvestment

Cutting crime: the case for justice reinvestment - Justice Committee Contents

5 DRIVERS OF SYSTEM EXPANSION

189. Lord Carter's 2007 report identified changes in public attitudes and the political climate, including greater awareness of risk and greater political prominence of public protection as additional key drivers of the prison population. Rather than taking these as a given or regarding them as too difficult to tackle, many of our witnesses argued that these must be addressed if the system is to take the more rational approach required to enable it to become sustainable.

190. Paul Tidball, Chair of the Prison Governors Association, distinguished between what demand dictates and what is actually needed in determining the size of the prison population: "There are a number of drivers of demand which include the popular press, political rhetoric and to some extent the business lobby as private prisons now exist and there is a difference between the demand created in that way and what communities, victims and offenders themselves need".[303] The former Lord Chief Justice, Lord Phillips, gave a lecture entitled Who decides the sentence? in which he explained that sentencing can itself be influenced by these factors. He stated that rises in the use of custody and increases in the length of sentences: "may well be attributable in part to media pressure" and related this to the fact that it is "part of a sentencer's job to reflect, at least to a degree, the public's view as to the proper response to crime."[304] He also suggested that as a result of negative media coverage of individual bail and parole decisions, both courts and the Parole Board have become more risk averse in their decision-making. Malcolm Dean, founder of Guardian society, cited a study by the Chair of the Sentencing Advisory Panel, Professor Andrew Ashworth, which found that judges are influenced by political rhetoric.[305]

191. Andrew Bridges, Chief Inspector of Probation, argued that, if in principle public money could be spent in a different way, it is necessary to consider, and if appropriate tackle, each and every one of the factors that have led to the overall increase in prison numbers.[306] This is no easy task. Nacro suggested that barriers to adopting alternative policies arise from "risk aversion at almost every level of the criminal justice system".[307] This is evident in increases in recalls (up 5% on 2006) and reductions in releases on parole and Home Detention Curfew.[308]

192. Wider factors, such as the media, public opinion and political rhetoric, contribute to risk averse court, probation and parole decisions and hence play a role in unnecessary system expansion. If Ministers wish the system to become sustainable within existing resources, they must recognise the distorting effect which these pressures have on the pursuit of a rational strategy.

The 'politics' of criminal justice policy

193. 'Tough on crime. Tough on the causes of crime' was a central plank of 'New Labour's' approach to criminal justice from 1992 onwards, and was consolidated in the 1997 manifesto. It remains one of the most well-known policy statements of the 1997 Labour government reflecting the extent to which crime and justice policies in the UK had become highly politicised by the late 1980s.[309]

194. Professor Ian Loader characterised the effects of this politicisation as follows:

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195. He then described the impact this may have on criminal justice policy making: "it has become very difficult to take political risks because the potential benefits seem small and remote and the potential political costs very immediate and potentially large."[311] David Faulkner agreed that this has made it difficult for Ministers and parties to argue for reductions in levels of imprisonment.[312]

196. Professor Nicola Lacey notes that the Government has been unable to resolve the tension between the exclusionary nature on the 'tough on crime' message - which focuses on the stigmatisation of offenders through, for example, high visibility vests for unpaid work, and the inclusionary aspect of the 'tough on the causes of crime' agenda - which aims to prevent offending and re-offending by promoting social inclusion.[313] The tension between these two messages was apparent in the coverage of the Justice Secretary's speech to the Royal Society of the Arts in which he stated he wished to reclaim the language of punishment and rehabilitation:

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197. According to Mr Scott the 'almost outright competition' between the parties, gives the impression that too much of the system is driven by political fancy rather than grounded in real concerns and the realities of what frontline criminal justice staff deal with.[315] He believed that the language used in explaining criminal justice policy plays a part in this: "part of the difficulty is that there is such a gulf between the language and the whole paraphernalia of criminal justice and local experience […] too often the rhetoric is just about punishment." This too was apparent in the Justice Secretary's speech on punishment and reform when he spoke of a desire to return to "being crystal clear about what the public expect the justice system to do on their behalf—to punish those who have broken the law."[316] Former Conservative MP Jonathan Aitken was critical of the very emotive language which politicians use when making reference to law and order and explained that, whilst he had been guilty of "rent-a-quote" reaction in his time as a Minister, he now viewed it as unhelpful.[317] Mr Dean was unable to see how the current Government's punitive political rhetoric had been beneficial: "at the end of this 15 years of high rhetoric the one thing you can say is that penal populism has not worked because two thirds of people wrongly believe that crime is still going up and they blame the Government; one third rightly believes that crime is going down but do not give any credit to the Government."[318]

198. According to Professor Loader, the Cabinet Office report Engaging Communities in Fighting Crime is a prime example of this. Commenting in the Guardian, he questioned the fundamental ethos underpinning the report: "[it] is an example of rhetoric that suggests total protection against crime can be a reasonable expectation". He argues that the finding in the report that, despite a series of "initiatives, rhetoric, crackdowns, policies, partnerships, laws, tsars, agencies and reports", the public continue to believe that crime is rising and that the Government is to blame. He suggested to us that the public have been given unrealistic expectations of what the criminal justice system can be expected to achieve: "New Labour has, it seems, been hoist by its own petard, become the victim of its own expectation-raising and criminal justice system-bashing rhetoric."[319] Professor Loader explained to us that as a result of the use of what he termed "decoy rhetoric" existing Government strategy is inherently unstable.[320]

199. Paul McKeever, chairman of the Police Federation, expressed similar views. He has been critical that the police have borne the brunt of the problems in the system and branded the belief that constant modernisation and reshaping of the police will solve crime more effectively as a "big lie".[321] Describing what he called the "Hokey Cokey" criminal justice system, he explains: "rather than addressing the real problem of ineffective sanctions, ineffective education programmes and ineffective rehabilitation the focus is on us, the police, to detect the same people more often and bring them before the courts again and again."

200. We do not contest that crime and responses to it are important political issues but we believe that the extreme politicisation of criminal justice policy is counter-productive, undermines rational policy-making, and conceals the consensus that does exist around the future direction for the criminal justice system. The Government has found itself in a problematic position on two counts. The need to be seen to be tougher than the opposition has contributed to the massive expansion of the system which has in turn caused the current lack of prison and probation capacity. At the same time it has undermined the pursuit of the Government's aspiration to be tough on the causes of crime and provide offenders with the real opportunities to reform.

Public opinion, politics and the media

201. According to Professor Loader the political climate is related to certain assumptions about the punitiveness of the public and the existence of media which "stands ready to highlight serious and violent crime, to expose the failings of the system, to make apparent the foolishness of judges, the folly of penal professionals […] and is therefore seen to offer a daily reminder that moving in this field is a high risk operation and the stakes are very high."[322]

PUBLIC DEMAND

202. Some witnesses questioned the relationship between perceived public opinion and policy-making on criminal justice. For example, Oxford academic David Faulkner suggested that perceptions of public demand have a strong influence on policy.[323] Sir Jeremy Beecham, Local Government Association, agreed that "Fear of fear of crime" drives the political agenda. [324] The International Centre for Prison Studies at King's College noted:

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203. Nacro commented that public opinion on crime is "an area of sensitivity which should not be discounted in estimating political will to change the emphasis of the criminal justice process."[326] This was strikingly apparent in our evidence from representatives from the Cabinet Office, Ministry of Justice and the Home Office. Louise Casey, author of the Cabinet Office report told us that the Government couldn't afford to ignore the fact that two-thirds of the public do not feel the criminal justice system is on their side and respects the rights of perpetrators more than the rights of the victims (see chart x).[327] Then Justice Minister Rt Hon David Hanson MP spoke of the importance of getting the 'tough on crime' message over to the public: "we have to face our electorate and they have to have confidence that it is a real punishment, but that it is also an effective punishment"[328] According to Alan Campbell MP, Home Office Minister, this belief means that the Government cannot have debate and discussion on a new direction for criminal justice policy unless they take the public with them.[329]

PUBLIC PRIORITIES FOR CRIMINAL JUSTICE

204. Professor Ian Loader suggested that whilst political rhetoric gives the impression that the electorate is principally punitive and supportive of the current direction of penal policy, research indicates that public sentiment may be more ambivalent than is generally assumed.[330] Studies on public priorities for the criminal justice system are frequently contradictory, with responses differing depending upon the way in which questions are framed. Nevertheless there is a growing body of research which suggests that public confidence is less of a barrier to changing policy than these Government spokespeople and other politicians think. Research for the 2001 Halliday report found that when asked unprompted what the purpose of sentencing should be, very few people spontaneously refer to punishment or incapacitation.[331] The most common response is that it should aim to stop re-offending, reduce crime or create a safer community and the next most frequently mentioned elements were deterrence and rehabilitation. The International Centre for Prison Studies cited a more recent MORI poll which also found that the public is more concerned about preventing crime than punishing perpetrators:

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205. Judge Michael Marcus, who we met in Oregon, USA, agreed, explaining that there is actually "enormously underestimated public consensus that reducing recidivism is the major purpose of criminal law and sentences". He further argued that the focus of the system on punishment or 'just deserts': "has been an enormously destructive, but effective, excuse for not making any responsible effort to meet these public expectations".[334]

206. In defending the Government's assertion that punishment must come before rehabilitation, Alan Campbell, then Parliamentary Under-Secretary of State, Home Office cited a 2007 Ministry of Justice survey which asked victims of non-violent crime what they wanted to see in a sentence—number one was punishment, two was payback and three was rehabilitation.[335] The prevailing public desire for punishment is also a strong message running through Louise Casey's Cabinet Office review:

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207. Indeed, in her evidence to our inquiry she justified the placement of punishment through imprisonment before rehabilitation:

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She further explained:

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Yet punishment does not appear at all in the summary of key research messages from the review. This stated that 58% of the public thought that better parenting would do most to reduce crime.[339] When we questioned Ms Casey further on whether her above comments meant that people should be put in prison regardless of whether it is the best way to rehabilitate offenders, she clarified that "people need to face the consequences on a range that is proportionate to the offence" and suggested that this can also include a fine, community pay-back or restorative justice.[340] She remained emphatic however that punishment is the paramount concern of the public. Rt Hon David Hanson MP reiterated: "we need to have an element of punishment and a visible element of punishment in order to be able to have the debate with the public and the world at large about reform and rehabilitation"[341]

208. Lord Dubs questioned why British society is apparently in need of more manifest demonstrations of punishment than other societies and concluded it is a political problem.[342] On the other hand, Professor Christian Pfeiffer, Criminological Research Institue of Lower Saxony, provided strong arguments for tackling the wider factors which contribute to harsher attitudes towards punishment, including the composition of the judiciary and the prevalence of family violence.[343]

209. Nacro believed that fear of crime may be based on incorrect perceptions of both the level and nature of crime.[344] This view was supported by Professor Loader who cited research evidence based on British Crime Survey data which found that one-fifth of respondents had a high fear of crime despite having a low risk of becoming a victim. Over half (54%) of those surveyed were neither worried about crime nor at high risk of becoming a victim. This indicates that 'irrational fear' of crime is not widespread in the population so Government efforts to reassure the public that crime rates are falling and that the system is effective are somewhat misplaced.[345] Chart 6 shows that there has been a fall in the level of worry about crime.

THE ROLE OF THE MEDIA IN SHAPING PUBLIC OPINION

210. Several of our witnesses and some respondents to the e-consultation sought to explain the gap between public perception and the reality that crime is falling and that sentences are tougher, and generally agreed that public perception of criminal justice is in part shaped by the media. There were some notable exceptions to this view, in particular from Home Office and Ministry of Justice Ministers perhaps reflecting a concern that the extent of media influence on the population may be exaggerated. Alan Campbell MP believed that the media reflects a public view which really exists, whereas Rt Hon David Hanson MP suggested that the media can both lead and reflect public opinion.[346]

211. On the other hand, David Scott, then Chair of the Probation Chief's Association believed there is a culture of the media too easily criticising what is not working rather than looking at successes in criminal justice at a local level.[347] The Magistrates' Association agreed:

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The former Lord Chief Justice, Lord Phillips, supported this view when he addressed the Prisoners' Education Trust: "The public is given the impression that judges are soft on crime, that crime is increasing and that sentences are not sufficiently severe to reflect the crime. All of these are misconceptions."[349] Some examples of the media portrayal of sentencing policy are presented in the box below.

212. Professor Christian Pfeiffer concluded that public misunderstanding of crime rates is influenced by increased media reporting of crime and crime related television shows.[350] Reports about crime in the UK media disproportionately focus on serious and violent crime. Research conclusions vary as to the exact proportions of crime reporting but a 1995 study found that murder and death accounted for 53% of all crime stories on Sky news, 42% on ITN and 38% on BBC1.[351] According to Professor Pfeiffer, pictures of crime stimulate an emotional response and develop fear.[352] His research also indicates that the more people think that crime is rising the more they ask for harsher punishments.[353] Thus the media portrayal of crime can also fuel the public's mistrust of crime rates and increase their appetite for punishment.

213. Mr Dean justified the critical position taken by the media, explaining that its hostility on crime issues relates to a general feeling that it has a responsibility to hold governments to account.[354] Mr Scott agreed that levelling blame at the media represented a diversion from taking wider responsibility, suggesting that criminal justice services must take some responsibility for forging better links with media at national and local level.[355] Several witnesses, including Lord Dubs and the New Economics Foundation referred to an apparent absence of political leadership in challenging media perspectives on crime with equally powerful voices.[356] Concern over an apparent lack of political will was similarly reflected in comments to the e-consultation. One respondent explained "First you have to stop national politicians grovelling to the Daily Mail tendency […] Then you have to wean them off launching constantly changing 'eye catching initiatives' with different names and targets every year".[357] Another remarked "I would like to see more attention paid by government ministers to the views of the professionals in the field who are, it seems to me, often ignored in favour of more punitive measures seen to be needed to satisfy 'public opinion'".[358]

214. The Government's acquiescence in the belief in the need for a 'tough' criminal justice message is clearly evident at times—an ICM survey whose results indicated the complex and context dependent nature of public attitudes to crime, and which found relatively strong support for community sentences, was sent out in a Ministry of Justice press release under the heading 'Victims of crime want punishment'.[359] Gillian Guy, Chief Executive of Victim Support, commented on the same press release: "If the criminal justice system is to truly serve victims, we need to prioritise effective rehabilitation rather than using victims to justify harsh punishments that don't actually stop reoffending."[360] According to Professor Loader, the Government's stance fans the flames of the media to some extent. He suggested that the media might be less likely to play the crime card "were they persuaded that a government knew what it was trying to do with the penal policy and had a strong and confident story to tell about why certain things go on in prison [which] might not be amenable to certain newspapers but in terms of rehabilitation and assistance and cutting re-offending just happen to be good ideas."[361] HM Council of Circuit Judges shares this view with respect to sentencing:

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215. A good deal of media comment assumes that sentencing is below the level that the public expect, whereas the evidence suggests that the public—when asked to make a judgment—set out expectations that are close to the levels that are actually being set by the courts. This suggests that there is not a generally 'punitive attitude' on the part of the public in England and Wales but that public debate takes place in a generally heightened and punitive atmosphere compared with the rest of Europe. Over the decades this has led to a 'bidding war' with politicians egged on by the media on the basis of what the public is believed to want.

216. There is a substantial body of research on public opinion on crime which paints a complex picture. On the one hand the public believe that punishment is the most important function of a sentence, and on the other they recognise that rehabilitative interventions are more effective at reducing crime. The public is also clear that punishment need not imply imprisonment, and when they are given sentencing scenarios, they tend to sentence at a similar level to that of sentencers. The Government's view of public opinion seems to be based on a selective reading of this research evidence. This is also true of representatives of some opposition parties. Parlaiment must listen to the public's rational perception of what changes are needed and act now to change the direction of the system, replacing expensive custody with community-based sentences and earlier intervention that will reduce re-offending.

217. Government efforts to increase public confidence do not consider the wider influences on public opinion or seek directly to challenge the media and the public when they are misinformed. We welcome recent attempts to challenge public perceptions of crime and punishment, for example through case study websites and roadshows, but we consider that something more fundamental is required to challenge the perception that the criminal justice system is not sufficiently tough.

218. The Government should lead a public debate on the aims of criminal justice policy, and seek to influence, as well as to be influenced by, the public response. In so doing the Government should assert that there are ways of reducing crime, other than expanding the use of imprisonment, which would better protect communities.

Building a political consensus

219. One important element in any solution to the seemingly inexorable rise in prison numbers is the reduction of the heat in political debate and to introduce some more light in this area with the aim of building a party political consensus on the ideal direction of policy. Several of our witnesses commented on the prospects of achieving such a consensus.[363] Professor Loader suggested that the tendency of politicians to continue to try and 'out-tough' each other in this area may be abating.[364] Furthermore, Malcolm Dean, founding editor of Society Guardian, said that the power of the media may also be waning, describing it as a "seriously wounded stag".[365] He also cited research which illustrated that prior to the 1970s, law and order was not a party political issue and it was not until the 1990s that the 'tough' rhetoric—in effect a 'criminal justice arms race'—began in earnest accompanied by the start of marked increases in the prison population.[366]

220. At the outset of the inquiry, Nacro told us that there was little political consensus over a need for an alternative policy. However, there are signs that the political landscape has changed more recently. Both the (current) Liberal Democrat and (former) Conservative spokesmen on justice, David Howarth MP and Nick Herbert MP respectively, thought that such a consensus would be possible if the direction of policy centred on reducing re-offending i.e. preventing re-victimisation. David Howarth said: "There can be disagreement about how, but if there is less disagreement about what we are doing then we can move ahead […] it is producing enough of a consensus that the debate becomes more rational at a national level".[367] Lord Dubs and Jonathan Aitken also agreed that a consensus could be formed around the benefits of taking an alternative approach.[368]

221. Rt Hon David Hanson MP, Justice Minster, indicated that such a consensus already existed:

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There appears to be most potential for consensus around two issues: first "what works" (evidence-based practice) in order to reduce crime and re-offending; and secondly, the most effective use of limited resources to achieve this. We heard that strong political leadership, which is more informed and less party political, is required to take the criminal justice debate forward.[370] Lord Dubs shared this view:

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Jonathan Aitken agreed:

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222. As we have said, according to Professor Loader, the media might also be less likely to play the crime card if they were persuaded that the Government knew what it is trying to do and that it had a confident story to tell.[373] Lord Dubs and Mr Aitken further suggested that these discussions may work to better effect, with both the media and the public, if they take place at a local level.[374] Mr Aitken said that the political debate about law and order will undoubtedly get more contentious and less consensual in the run-up to an election during which all kinds of things may be said which was likely to amount to an "auction on policies which involve toughness".[375]

223. Law and order arguments need better data. They rarely, if ever, consider wider social and economic costs of a large prison population[376] nor the real contribution of the criminal justice process to reducing crime or improving public security. Professor Cynthia McDougall argued that if policy decision-making was based on evidence coming out of independent research the public might see it as a sensible use of taxpayers' money.[377] Judge Marcus, Oregon USA, asserted that ideological differences in the politics of criminal justice policy can be overcome by focusing on the use of resources and moving the argument away from notions of punitive credibility:

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224. In basing arguments for reform on the best use of taxpayers' money, the political argument could be shifted away from notions about which party is 'harder' or 'softer' on crime and criminals to questions about the most effective use of scarce resources to reduce offending and re-offending. It is time for an objective consideration of what is in the best interests of society.

225. The existence of consensus can enable more measured responses, which are not necessarily criminal justice based, to be taken to high profile cases. For example, following a school shooting in Finland in November 2007 the Council of State commissioned a report from the Investigation Commission on measures to reduce the probability of similar events from occurring in the future. Rather than recommending longer sentences for gun crime, the Commission concluded that measures to improve student care, including the prevention of bullying, and access to mental health services were required.[379]

303 Q 425 Back

304 Lord Phillips, Who decides the sentence, Prisoners' Education Trust Annual Lecture, 14 October 2008, www.prisonerseducation.org.uk Back

305 Q 487 Back

306 Ev 213 Back

307 Ev 231 Back

308 Ministry of Justice, Offender Management Caseload Statistics 2007, October 2008. The latest statistics show a further increase in recalls but an increase in releases on Home Detention Curfew. See Offender Management Caseload Statistics 2008, July 2009. Back

309 Lacey, N. The Prisoners' Dilemma: Political economy and punishment in contemporary democracies, Cambridge, 2008 Back

310 Q 484 Back

311 Ibid. Back

312 Ev 152 Back

313 Lacey, N. The Prisoners' Dilemma: Political economy and punishment in contemporary democracies, Cambridge, 2008 Back

314 Rt Hon Jack Straw MP speech to Royal Society of Arts, 27 October 2008 Back