Criminal Justice : A Beginner's Guide [1 ed.] 9781908162687, 9781909976009

Citation preview

CRIMINAL JUSTICE A Beginner’s Guide

Bryan Gibson

This basic guide sets out the main components of the criminal justice system in an accessible way. Intended as a starting point for readers coming to the subject for the first time it is ideal for new staff, volunteers, first year students and other ‘rookies’: a short book of facts, explanations and pointers to further study. Chapters: 1 What is Crime? 2 What is Criminal Justice? 3 Who’s Who? 4 Modern Developments 5 The Police 6 The Criminal Courts in Action 7 Sentencing (including Probation Work) 8 Prisons and Imprisonment 9 Victims and Restorative Justice 10 Causes of Crime The book also features the Rule of Law, risk assessment, decision-making, forensic investigation, witnesses, surveillance, criminology, crime reduction strategies, border controls, penal reform and some international and historical dimensions.

Bryan Gibson is a barrister and editor-in-chief at Waterside Press.

www.WatersidePress.co.uk

Bryan Gibson

With a Glossary of Words, Phrases and Abbreviations

CRIMINAL JUSTICE A Beginner’s Guide

The most straightforward overview available Covers the entire criminal justice system A ‘no frills’ explanation for beginners

CRIMINAL JUSTICE A Beginner’s Guide Bryan Gibson

WATERSIDE PRESS

Putting justice into words

WATERSIDE PRESS

Criminal Justice A Beginner’s Guide

Bryan Gibson

ii

CRIMINAL JUSTICE

Criminal Justice A Beginner’s Guide Bryan Gibson ISBN 978-1-909976-00-9 (Paperback) ISBN 978-1-908162-67-0 (Epub) ISBN 978-1-908162-68-7 (Adobe Ebook) Copyright © 2014 This work is the copyright of Bryan Gibson. All intellectual property and associated rights are hereby asserted and reserved by the author in full compliance with UK, European and international law. No part of this book may be copied, reproduced, stored in any retrieval system or transmitted in any form or means, including in hard or electronic copy and via the internet, without the prior written permission of the author. Cover design © 2014 Waterside Press. Artwork by www.gibgob.com Cataloguing-In-Publication Data A catalogue record for this book can be obtained from the British Library. e-book Criminal Justice A Beginner’s Guide is available as an e-book and also to subscribers of Myilibrary, Dawsonera, Ebrary and Ebscohost. Printed by Lightning Source, Milton Keynes. Main UK distributor Gardners Books, 1 Whittle Drive, Eastbourne, East Sussex, BN23 6QH. Tel: (+44) 01323 521777; [email protected]; www.gardners.com North American distribution Ingram Book Company, One Ingram Blvd, La Vergne, TN 37086, USA. Tel: (+1) 615 793 5000; [email protected] Published 2014 by Waterside Press Ltd. Sherfield Gables Sherfield on Loddon Hook, Hampshire United Kingdom RG27 0JG Telephone +44(0)1256 882250 E-mail [email protected] Online catalogue WatersidePress.co.uk

Bryan Gibson

Contents

Copyright and Publication Details About the Author Acknowledgements Introduction

1  What is Crime? 2  What is Criminal Justice? 3  Who’s Who? 4  Modern Developments 5  The Police 6  The Criminal Courts in Action 7  Sentencing 8  Prisons and Imprisonment 9  Victims and Restorative Justice 10  Causes of Crime Glossary of Words, Acronyms and Abbreviations Index

iii

iv

CRIMINAL JUSTICE

About the Author

Bryan Gibson is a barrister who worked in the criminal justice system before founding Waterside Press in 1989. He has written several books on aspects of crime and punishment as well as for legal journals and the media. As an editor, he has worked with other authors on a range of interrelated publications.

Acknowledgements This book could not have been created but for osmosis: a gleaning of facts, ideas and information from authors I have worked with at Waterside Press. I would particularly like to thank John Hostettler, Martin Wright, David J Cornwell, John Blad, Ursula Smartt, Angela Devlin, Frankie Owens, Peter Villiers, (the late) John Alderson, Tony Moore, Tim Newell, Thomas Mathiesen, David Wilson, Andrew Rutherford, Sir Louis Blom-Cooper, (the late) Terence Morris, Alan Baker, John Harding, Joanna Kozubska, Paul Cavadino, Herschel Prins, Ben Ashcroft, Bob Turney, Allan Weaver, Justin Rollins, Alan Smith, Stephen Shaw, Eric Cullen, Tessa West, Mike Watkins, Daniel Briggs, Roger Billingsley, George Skelly and Satish Sekar. And I am doubly grateful to David Faulkner for reading and commenting on a late revision of the text. Any errors that remain are my responsibility entirely. Bryan Gibson April 2014

Bryan Gibson

v

Introduction

Criminal justice can be a fascinating topic even if some people prefer more cheering pursuits. From a complex and often controversial subject, I have tried to distil an outline of the essentials: a skeleton to which flesh can be added as the reader explores the subject further. Law and Order

In an ideal world rules of behaviour and sanctions to enforce them ought to be superfluous. But the real world must take account of human nature: anger, aggression, jealousy, greed, temptation, or simply ‘beating the system’. As in fiction such as Animal Farm or Lord of the Flies, unregulated societies tend to slide into anarchy. The response is for laws to be passed by the state: in a liberal democracy by consensus, in a ‘managed democracy’ or totalitarian regime by ‘rubber stamping’ or diktat, respectively. The aim can be summed-up using tags in common use: keeping the peace, crime prevention, protecting the public. The state develops strategies to these ends and a range of sanctions to inhibit wrongdoers. Security, control and risk

Vital to law and order are the tasks of police, prosecutors, courts and correctional services (prisons and probation); plus those of some less obvious participants as will be explained in later chapters. Central to this, three concepts predominate, ‘security’, ‘control’ and ‘risk’: • Security of the state, the individual, in prisons, at ports and airports, in places where people gather, to prevent fraud, protect premises, computers and systems

vi

CRIMINAL JUSTICE

• Controls on offenders in prison and in the community, on drugs or alcohol, on deviant behaviour, dangerous individuals, terrorists and organized crime. An all-embracing idea is that of ‘crime control’; and • Risk assessment to try and reduce or manage dangers (below). What happens without crime controls?

There is a marked convergence amongst different nations as to the main things justifying state intervention: homicide (the unlawful killing of one person by another: murder, manslaughter and the like), robbery, theft, rioting and public disorder, violence, damage to property (including by lighting fires: aka ‘arson’), causing explosions and sexual misconduct (especially rape or offences against children). Beyond this, the nature of crime varies widely indeed: Chapter 1. Some communities exist without highly-structured crime controls. Threats are resolved, e.g. by ‘elders’ following custom and tradition. Others use restorative justice: Chapter 9. At the other extreme, a void in state intervention may serve as an invitation to others to step in: • the Mafia and organized crime • politically or religiously-motivated groups such as the IRA (with its own punishment beatings and executions) • vigilantes harassing people such as anti-gay and lesbian activists at the 2014 Winter Olympics in Russia; or the Ku Klux Klan in the southern states of the USA in the early 20th-century (targeting black people in particular). Effective state-sponsored justice avoids the need for unlawful or private justice, vengeance, mob rule or kangaroo courts (a misnomer for artificial courts lacking any legal authority). State control may vary in its extent due, e.g. to zero-tolerance, soft or heavy policing, prosecution policy, political will or different levels of ‘punitive-mindedness’.

Bryan Gibson

vii

Risk assessment

Risk assessments are one way that the authorities decide what to pro-actively treat, or ‘process’ as crime, what lesser harms can be tolerated, relatively speaking. From a mass of potential crime control targets, someone has to decide what to prioritise on the grounds that it poses the greatest threat to public safety, national security or social harmony. Apart from looking at overall patterns of crime, risk assessments (aka ‘predictions’) are used in relation to, e.g.: • domestic violence and child abuse • sex offenders • dangerous offenders • missing persons • people ‘at-risk’ of falling into crime • those likely to become victims of crime • protests, demonstrations and large public gatherings to weigh-up whether these might get out of hand • vulnerable people • terrorism, organized crime and threats to what is sometimes termed the country’s ‘critical infrastructure’. They are designed to give an indication of the extent and likelihood of an attack or other criminal event, usually based on intelligence from police sources (or sometimes the security services): witnesses, informants, databases, historical patterns, criminal and other records (see Chapter 4 for extensive developments in the use of e-data). Risk mechanisms also include the offender assessment system (OASys) used by prison and probation staff (Chapters 7 and 8 ); Multi-Agency Public Protection Arrangements (MAPPAs) to identify risks to children and others close to a potential offender; and the Hare Psychopathy Checklist used by criminal psychologists (Chapter 7).

viii

CRIMINAL JUSTICE

Risk aversion

It is sometimes said that the criminal justice system (CJS) is risk averse, practitioners erring on the side of caution. But risk aversion also needs to be seen in the light of tragic outcomes such as: • the case of Victoria Climbié (a child tortured and killed by her guardians despite regular visits by social work staff) • the murder of Naomi Bryant in 2005 by a convicted sex offender, nine months after he was given parole (one of several cases where released prisoners have killed). Public or judicial inquiries have led to critical reports on occasion, that, e.g. in the Victoria Climbié case being known as the Laming Report (readily available at the internet). Others claim that the public must acknowledge some degree of risk: that the CJS would ‘freeze’ without flexibility, that prisons would fill-up due to a small number of atypical cases. Hence a constant search for better assessment tools. The Rule of Law

Stemming from the work of jurists of the 18th-century, the Rule of Law holds that ‘no-one is above the law’. Whatever their station in life, age, race, gender, inclinations or beliefs, suspects should only be arrested, convicted or punished by the same due processes of law. In 2013, a soldier was killed in a busy London street in broad daylight. This was captured on a camera. One perpetrator explained quite openly why he had carried out the offence. Some people questioned whether a trial was necessary at all. But the Rule of Law serves to prevent short-cuts or special treatment, no matter how obvious events may seem, or outwardly disagreeable the suspect. Judges, lawyers, correctional staff and others learn to ‘compartmentalise’ their thinking, to act with humanity and decency towards people they may personally detest: to separate the individual from their crimes. To make sure that those suspected of crime are properly treated:

Bryan Gibson

ix

• everyone is presumed innocent unless and until proved guilty • • • •

•

to the satisfaction of criminal court (Chapters 1 and 6 ) the roles of the state and judiciary (judges and magistrates) are separated out (Chapter 6 ) criminal justice services operate at arms length (Chapter 3) the law functions without discrimination: police should not, e.g. target communities or groups (Chapter 5) law enforcement is universal: without ‘no-go’ areas and no-one should escape by virtue of position or wealth, including governments; and power and authority should not be used to disadvantage or repress individuals, communities or sectors of population.

Lessons from history

History shows what happens when the Rule of Law is over-ridden. A compelling instance is the Nazi regime of the 1930s in Germany when emergency laws replaced democratic laws, judges and lawyers who objected were imprisoned (or worse) and Jews, homosexuals, petty offenders and ‘undesirables’ were singled out to be sent to concentration camps where millions perished. It remains a puzzle how ordinary soldiers and camp guards became complicit in this, but criminologist frequently point out how wrongful behaviour can soon become the norm, can be ‘plausibly explained’, and how moral values can deteriorate gradually or imperceptibly. There are many other examples worldwide including genocide in the Stalinist era of the former Soviet Union, China in the early-1900s, Rwanda and other parts of the Third World and allegedly modern day Syria. In 2013 in North Korea a senior minister was executed without trial. The 1953 European Convention On Human Rights (ECHR) seeks to curb such events at their (often small) beginnings.

x

CRIMINAL JUSTICE

Anomalies and concerns

There are anomalies concerning the Rule of Law, even in the developed world. They include crown (or, with republics, presidential) immunity. In Britain the sovereign can ‘do no wrong’, something reinforced by a parallel convention that prosecutions are brought in the name of the crown. Other departures include: • diplomatic immunity (under inter-state arrangements) • public interest immunity for police informers (Chapter 5) • matters of national security (Chapter 3) decided in secret or justice meted-out behind closed doors in immigration appeals by vetted judges addressed by special advocates; and • non-state control of surveillance (Chapter 4). Examples of high profile events which have caused concern include: the Libyan Embassy siege of 1984 in which WPC Yvonne Fletcher was shot dead by someone within that embassy whilst policing a protest; the 2009 release of Abdelbaset al-Megrahi, convicted of the Lockerbie bombing; the 2005 Stockwell shooting of John Charles Demenezes, a wrongly suspected suicide bomber, pursuant to a shoot-to-kill policy; ‘extraordinary rendition’ by taking suspects outside legal jurisdiction to forcefully interrogate them (in which the USA and UK are both allegedly implicated); the ‘ceremonial’ 2013 oversight of the destruction by the Guardian newspaper of computer hard discs containing data from the USA’s National Security Agency (the ‘Snowden files’); undeclared ‘amnesties’ in relation to the Good Friday Agreement to secure peace in Northern Ireland; and the as yet unresolved waging of war on Iraq on the basis of a controversial legal opinion and lack of prior Parliamentary consultation. Yet there is progress of a kind: in requiring the justice secretary to respect the Rule of Law (alongside human rights and the independence of judges), the Constitutional Reform Act 2005 should serve to place it at the heart of all associated decision-making.

Bryan Gibson

xi

Fairness

Closely linked to the Rule of Law is a need for fair treatment. Those exercising power must act even-handedly. In Europe, Article 6 of the ECHR (above) demands that people are: • told promptly and in a language they understand about the nature and cause of any criminal accusation against them • presumed innocent until proved guilty • given a fair and public hearing within a reasonable time • allowed adequate time and resources to prepare a defence (with legal assistance and if appropriate legal aid) • allowed to examine and call witnesses • given access to an interpreter if necessary; and are • given reasons and explanations for decisions affecting them. Article 6 affects all stages of the criminal process, from investigation to conviction and beyond. In this sense the term ‘fair trial’ has an extended meaning that embraces the entire criminal process. Discretion in Decision-making

Even if all crime came to the notice of the authorities and solid evidence existed (Chapter 2) of offences, crime is too prevalent for prosecutions to happen each time. To varying degrees discretion exists at all stages of the criminal justice process. The exception is where something is mandatory (i.e. demanded by law: such as a life sentence for murder). Proportionality and reasonableness are key discretionary decision-making principles, the aim being to eliminate preconceptions and instinct in favour of an objective, distanced approach that will withstand scrutiny and the benefit of hindsight. Guidance abounds to focus the decision-maker’s mind on: • looking at the precise facts of the case in question • weighing evidence, information or intelligence as applicable • hearing what those with a legitimate interest have to say

xii

CRIMINAL JUSTICE

• taking into account only relevant matters; and • balancing competing claims and interests. Certain public responsibilities carry (i.e. possess) ‘inherent discretion’ such as that of the home secretary to act in the interests of national security, or of judges to fill gaps in existing legal procedures. Accountability, openness, visibility and transparency

Decision-making has led to various guidelines, manuals and structured methods of approach. These try to simplify the task and make sure decisions are lawful and consistent. This is part of ‘accountability’, another fundamental requirement of justice. Ministers of state, the police, courts and other public services should always be able to explain their actions if necessary. This is pursued by having effective appeal systems, scrutiny, inspection, monitoring, record-keeping and opportunities for review or audit. Similarly, the system should operate in an atmosphere of openness and transparency. Hence, e.g. • ‘open courts’ which the public may freely attend • a general commitment to visibility and transparency • requirements for reasons to be given for decisions; and • criminal offences such as obstructing or perverting the course of justice and misconduct in public office. Equality

Equality is perhaps easier to proclaim as an objective than it is to deliver. The word is used in a number of different contexts: • equality before the law and in the treatment of individuals, agencies/services, groups, organizations and communities • ‘equality of arms’: there should not be a David and Goliath contest between the accused and the state, the former must be allowed to present his or her case and obtain legal advice

Bryan Gibson

xiii

• equality of opportunity so that diversity exists, e.g. among criminal justice personnel: much concern has been expressed about a failure to achieve this, about the ‘cloning’ in like image of new judges, magistrates and practitioners • equality policies concerning race, ethnic origin, religion, sex or gender, as reinforced by law and best practice • equality through the elimination of disadvantage, social exclusion and other forms of deprivation that may in turn be a cause of crime (Chapter 10). The Equality and Human Rights Commission (EHRC), established by the Equality Act 2006, is a landmark on the route to a fairer society. The commission seeks to eliminate discrimination, reduce inequality, protect human rights, build good relations and ensure a ‘a fair chance of participating in society’ for all. Confidence, Legitimacy and Abuse

It is often proclaimed that something ‘must be done’ to maintain confidence in the CJS. That the police should crack down on a particular kind of offending; courts should be firmer; Parliament ought to enact new laws. Confidence is soon lost if offending escalates, but also if there is a knee-jerk reaction every time there is the merest public outcry. Similarly, if values are eroded, justice denied, decisions unsupportable or responses to crime arbitrary; or those in authority abuse their role or commit misconduct in public office. Without public confidence behind it, the entire system may lack legitimacy. Modern instances where matters reached this extreme include events in Egypt in 2011, leading to a coup to oust that country’s first democratically-elected government. Other fragile occurrences include high levels of civil disobedience in Thailand and Ukraine (where in 2014 a citizen’s uprising turned to revolution). The same can be said if the creation of new offences outstrips the

xiv

CRIMINAL JUSTICE

capacity of law-abiding citizens to know what the law requires of them. As explained in Chapter 1, concern exists about the sheer volume of crime-related legislation in England and Wales in recent years. Responses to Crime

A central and recurring theme of criminal justice concerns how the state should ‘respond’ to crime. This may signify such things as: what overall arrangements it should be put in place • how the police and courts should react to particular offences • the range of sentences available and their use • the nature of prison regimes and community sentences • what crimes should be treated as a priority • the speed of reaction of law and order services • how best to treat victims of crime (Chapter 9); and • how to tackle underlying causes of crime (Chapter 10). Tough on crime

‘Responses’ may also signify the statements of politicians, pressure groups or the media. The role of the media and press cannot be ignored: ever since the days of broadsheets and ‘Penny Dreadfuls’ crime has attracted readers (and by extension viewers and listeners). Crime, missing persons, riots and conflict makes good copy. One of the most visible media-driven crime-related strategies of modern times in the UK was that of ex-prime minister Tony Blair who popularised the slogan ‘Tough on crime, tough on the causes of crime’. This was a riposte to the Tories who had announced that they would be ‘Tough on crime’. Toughness is reflected in most criminal and penal laws passed since 1989, leading to new crimes (Chapter 1), procedures (Chapter 4) and more severe punishments (Chapters 7 and 8 ). This despite crime in general reportedly falling year upon year (see the statistics mentioned at the end of this chapter). It was Tory home secretary Michael Howard MP who coined

Bryan Gibson

xv

another media-friendly (if contentious) slogan: ‘prison works’, which has also spawned qualifications such as ‘prison works for some people some of the time’. Whatever the message, more and longer imprisonment has taken the prisoner population of England and Wales from about 44,000 at the beginning of the 1990s to over 80,000 today. The Criminal Justice System

Criminal justice system (CJS) is the description normally applied to the totality of the arrangements for delivering criminal justice: physical and human resources as well as legal, practical and procedural ones. It is more ‘systematic’ than it was due to the efforts of key government departments and CJS services to eliminate dysfunctional arrangements, disparity and waste (Chapters 3 and 4). A stated purpose of government is to: deliver justice for all, by convicting and punishing the guilty and helping them to stop offending, while protecting the innocent.

It seeks to do this by among other things (paraphrased): • improving effectiveness and efficiency • increasing public confidence in fairness and effectiveness • increasing victim satisfaction and witness satisfaction • collecting, analysing and using good quality ethnicity data to identify and address racial issues; and • increasing the recovery of criminal assets. Crime prevention and working together

Among other modern developments described in Chapter 4 has been a drawing together of the component parts of the system. They work more closely with one another than they did, but remain independent. For example, the Crown Prosecution Service does not become directly involved in a police investigation even though it advises

xvi

CRIMINAL JUSTICE

the police on the appropriate charge or the value of evidence discovered. The National Probation Service (Chapter 7) needs to keep courts informed about community sentences. Most CJS services are in some way ‘interdependent’, if only, e.g. because they need to pass information to each other, liaise, share tasks. The government uses a Criminal Justice Strategic Plan against which such developments take place to deliver a system which is effective: in bringing offences to justice, especially serious offences; engages the public and inspires confidence; puts the needs of victims at its heart; and has simple and efficient processes.

A key purpose of crime prevention and crime reduction is preventing harm, whether physical, emotional, economic or otherwise. Also repairing it if possible, e.g. through compensation orders for injury, loss or damage, the restitution of stolen property, seizure and sale of criminally-obtained assets, victim liaison or reparation schemes. Government has also focused its attention on preventing serious harm. An adversarial system

In terms of trials in a criminal court, the English CJS remains fundamentally adversarial. As in other countries that follow ‘the common law tradition’, it is one in which cases are won or lost by 0pposing parties. It does not primarily seek out the truth (even if it may be discovered as a by-product) and has been described as a ‘game’ for lawyers in which true justice takes a back seat. For example: • an accused person may ‘escape’ conviction on a technicality • forceful cross-examination of witnesses may be used to ‘break down’ their testimony or discredit them • the accused may chose to remain silent (but see Chapter 1) and ‘put the prosecution to proof ’ in the hope of a ‘cracked trial’: one that collapses (for multifarious reasons); and

Bryan Gibson

xvii

• there is little incentive for an accused to accept responsibility or express remorse (at least until facing sentence). At one point, the government sought, unsuccessfully, to prevent technical defences but this proved not to be in line with an accused person’s rights. And whilst judges prevent witnesses being browbeaten or victims made to ‘re-live’ their ordeal in the witness box, the fact remains that such intervention might lead to an appeal. The adversarial system is hailed by some, scorned by others. Its roots are historic and it is frequently contrasted with the inquisitorial system of some European states (and to an extent Scotland) whereby a judicial officer oversees the case from an early stage before it is passed to an independent court. The nearest that courts in England and Wales come to this is ‘case management’ and ‘preliminary hearings’ that seek to identify areas of dispute in not guilty cases and avoid delay in getting a case to trial. But still within an adversarial process. Criticism and Reform

Many criticisms can be made of the existing system in England and Wales: the watering-down of cherished principles by governments whose pre-occupations are, relatively speaking, short-term (Chapter 2); public tasks being increasingly outsourced, especially to the private sector with its primary purpose of making profits (Chapter 4); failure to adequately confront causes of crime (Chapter 10). Yet criminal justice has come a long way from the Bloody Code of the 17th-century, when over 200 offences carried the death penalty and boys were hanged for stealing a pittance, when women or vagrants were whipped from town at the tail of a cart, or as depicted in the popular BBC TV series ‘Garrow’s Law’ the accused was not allowed to speak in court or be represented by a lawyer and bounty hunting thief-takers manufactured evidence. It is also a far cry from the days when bribery or influence could routinely buy a court outcome,

xviii

CRIMINAL JUSTICE

procure witnesses prepared to swear to anything for a fee (‘guinea men’), or endemic corruption and vested interest. Reform groups and initiatives

There are many bodies and individuals who have helped to bring about positive change, including the Law Commission, Howard League for Penal Reform, Prison Reform Trust (PRT) and Nacro (National Association for the Care and Resettlement of Offenders). Information about the work of these and other groups — often specialist and sometimes concerned with reform of the offender rather than the system — are readily accessible on the internet. At a public and national level there exists an Office for Criminal Justice Reform (OCJR) which is sponsored by the Ministry of Justice (Chapter 3): a cross-departmental arrangement supporting services: to provide an improved service to the public … and deliver the … vision [of ] … an overall framework and guidance.

Surveys and Statistics

The Crime Survey for England and Wales is a key source of research data (Scotland and Northern Ireland have their own). Findings inform criminal policy-making, e.g. by asking members of the public directly about crimes they have experienced, whether reported by them to the police or not; and their views on crime and anti-social behaviour (Chapter 1). Findings also relate to confidence in the system and fear of crime, one recurring discovery being that fear of crime outstrips actual crime. Another leading source of statistics based on data collected from the public, police forces and criminal justice agencies is UK National Statistics (online details below) which provide figures cross the entire justice system.

Bryan Gibson

xix

Suggestions for Further Reading Champions of the Rule of Law (2011), Hostettler J, Sherfield on Loddon: Waterside Press Crime Survey for England and Wales, www.crimesurvey.co.uk Crime statistics: www.statistics.gov.uk/hub/crime-justice Crime, State and Citizen: A Field Full of Folk (2006), edn.2, Faulkner D, Sherfield on Loddon: Waterside Press

1  What is Crime?

Some obvious candidates for ‘criminalisation’ were mentioned in the Introduction: homicide, serious violence, sexual offences, child abuse, rioting, public disorder, theft and criminal damage. The criminal law also tends to be reactive, responding to pressing problems of the day: domestic violence, trafficking, gangs, drugs, corruption in public life, ‘boiler room’ scams (see the Glossary), benefit fraud and terrorism. Sometimes this leads to the creation or modification of offences, so that what does not rank as a crime today may do tomorrow. Crimes Change with the Times

The intrinsic nature of crime can perhaps be understood best by looking at examples of what particular societies have resolved to treat as crimes at one time or another: • abortion, homosexuality, blasphemy (involving different deities), prostitution, adultery, hate crime, female genital mutilation and ‘mercy killing’ or ‘assisted dying’ are crimes in some countries (even today) but not in others • controls of alcohol, drugs, tobacco or poisons have altered their legal status in different countries at different times, e.g. alcohol was outlawed in the USA during the prohibition era of the early 19th-century and is in some Muslim countries today (It was restricted in war-time Britain). Certain countries tolerate soft drugs whilst others periodically criminalise or re-classify existing drugs, or prohibit freshly invented ‘designer drugs’ or ‘legal highs’.

1  What is Crime?

21

• certain countries allow people to carry weapons in a way that

• • • •

•

• • •

•

is wholly criminal in the UK and other states (the USA Constitution even contains a right to bear arms) UK anti-vagrancy laws proliferated in the early-1800s health and safety or similar regulations to protect workers are more likely to exist in developed countries cybercrime (Chapter 4) hardly existed ten years ago infanticide is an example of a crime created in Britain to mitigate the severity of the death penalty that would before 1965 have been visited on a mother for killing her own baby driving with excess alcohol in the blood has only existed as a crime in England and Wales since 1967 (though a difficult to prove offence of drunken-driving did exist); harassment since the 1970s; hate crime since around 2004; and some serious and thousands of lesser new criminal offences were created by New Labour from the late-1990s countries may have crimes peculiar to them, e.g. in Germany (and other countries) that of ‘denying the holocaust’ polygamy is normal in some countries but bigamy (marrying whilst married) is an offence in most western states offences may spread from one country to another by emulation: a curious example is ‘smoking in a car when a child is present’, an offence in the USA and Canada and on the way to being one in Britain also; and the same behaviour may not be a crime in certain circumstances, e.g. killing in self-defence, war (within limits), or lawful execution which continues in many countries today.

It would be possible to compile a longer list. The key point is that there is nothing sacrosanct or preordained about the nature of crime: it is as Lucia Zedner has pointed out, ‘socially constructed’.

22

CRIMINAL JUSTICE

Ingredients of Criminal Offences

Legal definitions also determine the parameters of what is an offence. A definitions exist in relation to each individual offence, but this may also vary from state to state. Murder, e.g. which is a single offence in England translates in the USA into ‘murder one’ (premeditated or resulting from certain other felonies), ‘murder two’ (unplanned or in the heat of the moment) and ‘murder 3’ (broadly speaking equivalent to the English crime of manslaughter). Crime definitions set out the legal ingredients of offences. For a prosecution to stand any chance of succeeding, every ingredient must be covered by the evidence (see Chapter 2). Theft only occurs if the accused person acted dishonestly. If someone mistakenly forgot to pay for something whilst shopping this is not an offence. There are many other technicalities involved in the definition of theft. Picking wild flowers is altogether excluded and if someone genuinely intends to return property no offence occurs. Criminalisation and Decriminalisation

The process of making something a crime is often described as ‘criminalisation’; and by a similar token ‘decriminalisation’ when a crime is abolished. In the UK and western democracies crimes are created or ended by legislation, i.e. Act of Parliament (aka statute). They can also be created by delegated legislation (aka ‘subordinate’ or ‘secondary’ legislation), as made by ministers of the crown but only within the strict confines of powers handed to them by an ‘enabling’ or ‘parent’ Act. Generally speaking, serious offences will (or ought) to be contained in an Act proper; only lesser, e.g. regulatory offences, in minister’s statutory instruments and even though the actions of ministers will ordinarily need to be ratified by Parliament at some point. Moral panics and ‘new opportunities’ for crime

The phenomenon of the latest ‘big crime concern’ is well-known to criminologists. The term ‘moral panic’ appears to have been coined in

1  What is Crime?

23

the early-19th-century to describe a deep sense within the population about a perceived new threat to social order, leading to pressure to criminalise the conduct or activity concerned. These concerns may or may not be valid: and sometimes they may have been triggered by a small number of high profile but atypical instances where the existing law seemed powerless or ‘an ass’, maybe fuelled by the media. Another reason for creating new crimes may be for the state to counter developments in technology that make crimes easier to commit or provide new ways of engaging in existing crimes (Chapter 4). Further reasons include federal or European obligations which may only become law once ratified by a state Parliament or legislature. The Centrality of State Prosecutions and Sanctions

It is possible to ‘work out’ if something is a crime by asking: • whether the law prohibits given conduct, acts, failures, omissions, shortcomings, events or a given state of affairs • if responsibility is placed on an individual or corporate body (when the latter is possible: corporations cannot think for themselves but sometimes a ‘controlling mind’ can) • if the legal definition and ingredients of the offence fit exactly the conduct involved (this chapter, above) • whether a given state of mind must be present (Chapter 2) • whether there are any legally prescribed exceptions (such as picking wild flowers in the theft example above) • whether the offence is treated as being against the crown (or state) as opposed to an individual victim; and • whether there is provision for some kind of state-sponsored punishment once the offence is proved against the offender. Sanctions

The last two pre-conditions above, the need for the involvement of the state in prosecutions and the existence of state sanctions is what

24

CRIMINAL JUSTICE

jurists have tended to treat as setting crime apart from lesser wrongdoing. This does not mean that punishment must be used, indeed various groups oppose its widespread deployment as archaic: only that the power to use it exists under the law. The principal of mercy, or mitigation, may avoid, or reduce the need for punishment (Chapter 7), but the power to use punishment at the behest of the state is key to understanding the fundamental nature of crime. Lawyers may object that contempt of court in civil proceedings can end in imprisonment or a financial penalty, which looks very much the same thing as criminal punishment. But this is civil in nature, does not involve the state and is subject to a raft of other distinctions. Who keeps the income from the CJS?

According to Magna Carta, ‘To none will we sell … deny [or] delay right or justice’. The CJS generates turnover, if not profits. However, the state and not, e.g. the courts, collects and retains fines and the proceeds of sale of criminal assets. Neutral government accounting is used to counter the idea that crime is a ‘cash cow’, but seized assets may be used to fund crime prevention schemes and some fixed penalty fines have been ‘recycled’ to finance, e.g. speed cameras or localised enforcement schemes. More generally, the state arranges for policing, courts, prisons and probation resources as described in later chapters, but all at a distance from ‘takings’ by the system. This is very different to the way state involvement in crime began in England, in medieval times, as an overt way of raising revenues for the crown. State prosecution and private prosecutions

As described in Chapter 3, in England and Wales prosecution is the remit of the Crown Prosecution Service (CPS) (or other authorised public authority). But there is also an historic if rarely exercised right to bring a private prosecution. How does this square with the notion of crimes being against the state? The answer is that all prosecutions

1  What is Crime?

25

are deemed to be brought in the name of the crown. Further, the CPS (or attorney-general in some more serious cases) can take over any prosecution and ‘discontinue’ (i.e. put and end to) it. Some crimes may not be prosecuted at all. Examples include: • where a police warning is given on the street • where a formal police cautions is issued at a police station by a senior police officer so long as the culprit admits the offence, i.e. a warning not to offend again or risk prosecution. Some cautions may have conditions attached. The CPS is ultimately responsible for advising whether a caution is appropriate (and there are different legal arrangements and standards concerning juvenile offenders) • where administrative penalties are imposed by a range of government departments in lieu of prosecution, e.g. HM Revenue and Customs, the Health and Safety Executive • where fixed penalties (‘on-the-spot-fines’) are issued by the police, local authorities, and further authorised bodies, e.g. in relation to public disorder, traffic offences and low-level offences (see later) • where diversion, referral or education schemes exist so that the offender is dealt with in the community as an alternative to prosecution. This may include, e.g. referral for drug treatment, mental health issues or attendance on a driver awareness course in lieu of a fine and the imposition of penalty points on a driving licence; or • in some cases where restorative justice is used (Chapter 9). Like a Crime But Not a Crime

Allegations falling short of being ‘criminal’ accusations are usually termed ‘civil’ and the conduct or events involved as ‘civil wrongs’ (or to use the commonly applied French term ‘torts’). Examples are civil nuisances (which may disturb a neighbour) and negligence

26

CRIMINAL JUSTICE

short of criminal negligence (causing unintentional injury, e.g. in a car accident). As with another civil wrong, breach of contract, they lead to an award of monetary damages and possibly an injunction to prevent something continuing. The following examples are non-criminal events: • contempt of court (already noted above) • binding over to keep the peace: the historic power of magistrates dating from the Justices of the Peace Act 1361. Those bound over must enter into a recognizance (a promise to pay a sum of money in the event that the order is breached). • anti-social behaviour orders (ASBOs) and various related orders (such as drink banning orders) even though these may attract criminal sanctions if their terms are broken (the civil ASBO must also be distinguished from the criminal anti-social behaviour (CRASBO): Chapter 7). An attempt to replace ASBOs by a new form of civil procedure injunction was rejected by the House of Lords in 2014 following which the government vowed to revisit the unsatisfactory state of the law in this area and ‘strengthen ASBOs’. • immorality unless coincidentally defined as a specific crime. There is no necessary crime-morality correlation • unacceptable behaviour. This term is used, e.g. in crime prevention schemes including as a label for behaviour that may place someone, particularly a youngster, at risk of ‘getting into’ crime. This variety of crime prevention makes use of devices such as acceptable behaviour contracts (ABCs) between supervisors, referral agencies, crime prevention schemes, charities and potential offenders. • family proceedings concerning the rights of spouses and children and that may involve, e.g. non-molestation orders • fines imposed on a national government by a supra-national body such as the European Union

1  What is Crime?

27

• fines imposed by the Financial Conduct Authority on banks and businesses (Chapter 3) • contractual penalties such as those for overstaying time limits in a private sector car park, or under disciplinary rules of membership bodies such as the Football Association • so-called ‘no-crimes’, i.e. events that the police record but chose to categorise as non-criminal. It is perfectly possible for criminal and civil matters to overlap. Some nuisances such as ‘noise pollution’ or those caused by industrial concerns may amount to criminal offences; and domestic violence will usually involve what is technically a criminal assault even if categorised as civil molestation. Only in rare instances does the fact that a crime has been prosecuted bar a separate civil action for damages (or vice-versa), even if the latter must usually wait, for legal reasons. Criminal Responsibility

A person’s age may affect whether conduct is regarded as an offence. In England and Wales the age of criminal responsibility is ten years, below which the child will be dealt with under welfare-oriented procedures by social or youth justice workers. Whilst this does not affect the criminal nature of the conduct in question, it emphasises the over-riding authority of the state to determine legal parameters. See also the reference to ‘Youth crime’ later in this chapter. Some offences involve statutory age-limits (something which varies from state to state), such as sexual offences, those concerning the employment of minors (variously defined), and regulating the sale or supply of alcohol or certain substances to them. Similarly, criminal responsibility will not exist in cases where someone is found by a court to be suffering from insanity, or cases may not proceed where their mental health indicates the need for some other outcome or order (Chapter 7). Often such cases are diverted to

28

CRIMINAL JUSTICE

mental health facilities early on and never reach court at all. Ways of Taking Part in Crime

There are various ways of taking part in crime all of which attract their own special rules, law, procedures and penalties and some of which may be referred to as ‘secondary participation’. For present purposes it is only necessary to list these: • attempting to commit a crime. Some crimes have been defined so as to include attempts or preparatory acts within the ingredients of the substantive, principal offence, e.g. in relation to terrorism: otherwise, attempts only attract criminal liability if they are ‘proximate enough’ to the full offence, sufficiently along the road to the completed crime. • aiding and abetting (meaning assisting in some way) • inciting or encouraging offences and ‘joint enterprise’ • conspiracy to commit crime (conspiracy is an inherently more serious matter normally leading to a greater penalty). Defences and Excuses

There are various general defences to an allegation, such as mistake, consent or lack of mens rea (lack of the intention, knowledge or some other lawfully prescribed state of mind: Chapter 2), or that the accused person has an alibi and so could not have been at the crime scene at the relevant time. Similarly, self-defence in relation to an attack, i.e. where the accused person claims that he or she used reasonable and proportionate force in response to an imminent threat. Diminished responsibility is a special defence that applies only in relation to a charge of murder; the effect of which, if successful, is to reduce the offence to one of manslaughter. Acts of Parliament sometimes include ‘excuses’ or ‘exceptions’ whereby something is not a crime in prescribed circumstances.

1  What is Crime?

29

Motive and Motivation

Motive can be briefly defined as the reason for or purpose behind someone committing a crime; motive may be evidence pointing towards guilt: a view to benefit or gain, avarice, jealousy, revenge or to cover-up a secret. By contrast, the term motivation is used to describe what drives someone to a particular end, as where someone is set on ‘going straight’ or a criminal justice reform. Motivating people, e.g. to obtain employment, education or some other achievement is one technique used with offenders as a form of crime prevention. Examples of Types of Crime

As with many facts of criminal justice, offending is frequently categorised using informal ‘tags’. Just ten examples have been selected below, sufficient to emphasise the wide spectrum of types of crime (hence difficulties finding any single solution: see further Chapter 10). 1. Organized crime

This description is often used to describe crime carried out in a managed way, as if part of a legitimate business, usually on an appreciable scale. Examples include drug cartels, protection rackets (e.g. blackmail and extortion under the guise of ‘insurance’), money laundering, paedophile networks, international trafficking of drugs, people (a modern form of slavery) and smuggling contraband items, largescale fraud and, by some descriptions, the general activities of an ‘underworld’ of professional criminals: rackets, illegal gambling, contract killing and other forms of ‘enforcement’. Organized crime is a target of the National Policing Agency, Interpol (both Chapter 5), the Serious Fraud Office (Chapter 3) and HM Revenue & Customs, often in joint operations. In 2014 the home secretary vowed to criminalise the involvement of ‘untouchable crime lords’, those directing events whilst remaining remote and hazy figures. Under the proposals ‘gangland bosses’ could be guilty of ‘directing organized

30

CRIMINAL JUSTICE

crime’ even if they cannot be prosecuted for some other identifiable offence. Over 5,500 organized crime gangs are said to operate in the UK alone, costing the economy some £24 billion per annum. 2. White collar crime and blue collar crime

White collar crime describes that committed by desk-bound or retail workers, including higher management, even owners or directors: from theft of the firm’s stationery, ‘cooking the books’ and using business resources for personal gain to multi-million pound frauds (e.g. the ponzi schemes of USA entrepreneur Bernie Madoff, or dealings of ‘rogue trader’ Nick Leeson). There may be a degree of acceptance of the risk of such conduct by banks or businesses, proceeds being seen as an unspoken bonus (so long as others profit), or ‘normal’ (everybody does it). The true scale of this type of crime thus remains hidden due partly to equivocal attitudes of victims, especially banks, guarding business reputations, failure to equate such occurrences with criminality and apathetic approaches to detection or prosecution. Blue collar crime is the industrial or manual labour equivalent of white collar crime: where people take things home from the stores or site. An apocryphal tale about building the Titanic illustrates the point: it is said that not one but two ships left the docks! 3. Corruption

Corruption in public life has had a high profile in recent years, due, e.g. to the Parliamentary expenses scandal that saw several members of Parliament sent to prison. In the world of the media it has been a central theme of phone-hacking trials and allegations of unlawful payments to police or prison officers for confidential information, e.g. on people investigated, arrested or imprisoned (including celebrities). A seminal case in the annals of corruption is that of the Pontefract, West Yorkshire architect John Poulson (1910-1993) who in the 1970s went to prison for seven years for his routine bribery and ‘corrupt

1  What is Crime?

31

gifts’ to council leaders concerning planning permission, including for prestige buildings such as police stations and magistrates’ courts. His largesse (which he was accused of distributing ‘like Henry VIII’) spread to Whitehall and led to the resignation of home secretary Reginald Maudling. Ever since the Prevention of Corruption Act 1916 payments to a public officer are deemed to have been corruptly made. 4. Crimes of the black economy

Black economy is a description applied to a hidden, unofficial economy in blackmarket goods involving transactions that go unrecorded for, e.g. the purposes of income tax or Value Added Tax (VAT). A largely cash-based, no questions asked form of trading it is historically linked to the post-Second World War ‘spiv’ and nowadays to that of money-laundering, copyright theft, counterfeiting, illegal trading and vanishing pop-up shops. Again, it is difficult to measure its extent: the UK black economy has been estimated at around ten per cent of Gross Domestic Product, in some countries up to 50%. 5. Grey crime (or silver crime)

Grey crime is a description applied to criminal offences committed by older people. There may be a range of explanations for outwardly respectable people who have not been in trouble with the law previously taking to crime at a ripe age. Some commentators attribute this to a sense of betrayal most felt when pensions or savings diminish due to changes in policy, and economic downturns set against banking scandals that may have deprived retired people of long-term living standards. The kind of offences involved include insurance and benefit fraud and those associated with ‘beating the system’. 6. Hate crime

Extreme dislike, antagonism or venom directed towards a particular individual, group or community on the basis of their colour, religion,

32

CRIMINAL JUSTICE

gender, sexual orientation, ethnicity or beliefs. The modern umbrella term hate crime encompasses a number of dedicated offences of incitement to racial hatred and other forms of hate; whilst sentences may be aggravated in relation to any offence if accompanied by such purposes. CJS measures have targeted a growing range of hate offences, via crackdowns by the police and the priorities of the CPS, with higher levels of punishment reinforced by sentencing guidelines. 7. Cybercrime

This description, applied in modern times to crimes committed in ‘cyberspace’, i.e. using the internet, is described in Chapter 4. 8. Regulatory offences and ‘low-level’ offending

Lesser offences are often created and dealt with under delegated or ‘secondary legislation’ (see earlier in the chapter), usually styled ‘rules’ or ‘regulations’. Sometimes they may stem from ‘primary legislation’ as with Road Traffic Regulation Acts and the Regulation of Investigatory Powers Act 2000 (RIPA)(Chapter 5) or those concerning health and safety. Low-level offences of this kind may be dealt with by an informal warning or caution; an on the spot fine (fixed penalty) or possibly an anti-social behaviour order (ASBO) (above). 9. Cold crimes

These are crimes that remained unsolved when originally investigated; where the case file was closed. Later, new evidence may have come to light, concerning which police forces have systems for periodic review. Developments in DNA-profiling (Chapter 4) have made such ‘back investigations’ more fruitful if exhibits have been stored. DNA has resolved several ‘cold case’ murders as well as other serious crimes and such reviews have been reported of case files from as long ago as 1946 and even 1926. A particularly interesting DNA-linked cold case set of convictions

1  What is Crime?

33

were those in 2006 of the ‘Dearne Valley rapist’ who was convicted in Sheffield of rapes and sexual offences committed 20 years earlier. This was on the basis of familial DNA, that of his sister who had been arrested for driving with excess alcohol in her blood (and in this regard a first of its kind). Another example is provided by the case of a Salisbury man sent to prison in 2014 for over 12 years for attacks committed in 2001. In this instance, covert terrorism powers were (questionably) relied upon to obtain DNA from a coffee cup he had used in a cafe. Having been identified in this way, he was then asked for a sample of his DNA, the actual evidence used in his trial. Investigations in the wake of the death of entertainer Jimmy Savile have also led to cold cases from the distant past being revived or in some instances investigated for the first time, resulting in trials of a number of celebrities for sexual offences and the conviction and imprisonment of some. It is reported that at the start of 2014 hundreds of such offences were under investigation, albeit that both the police and CPS have voiced concern that procedures may need revisiting in the light of a number of high profile acquittals. There have also been calls to place a time limit (a ‘statutory bar’) on the period beyond which prosecutions for certain crimes is not permissible. 10. Youth crime

Offences committed by people aged 10-17 is are dealt with under the umbrella of youth crime. The information in this book refers mainly to adults (18 years on older). Children (10-13) and young persons (1417) are dealt with in a special youth court (part of the magistrates court) and, except where the offence is particularly grave, in most instances a first offender is referred to a youth offending panel and sent to be dealt with by a local youth justice team which will devise an action plan to prevent further offending. It is possible for juveniles to appear in the Crown Court in respect of grave offences. This is a specialist area of study concerning which the Ministry of Justice

34

CRIMINAL JUSTICE

shares responsibility with the Department for Children, Schools and Families (and other departments) and on which dedicated works should be consulted.

Suggestions for Further Reading Crime, Sate and Citizen: A Field Full of Folk (2006), edn. 2, Faulkner D, Sherfield on Loddon: Waterside Press, at pp 166-170 (for the criteria that ought to exist for creating new offences) Criminal Justice (2004), Zedner L, Oxford: Clarendon Press (for how crime is ‘socially constructed’) Folk Devils and Moral Panics (1973), Cohen S, St Albans: Paladin The Concept of Law (1997), edn.2, Hart H L A, Oxford: Clarendon Press The Morality of Law (1969, revised edn.), Fuller L, Yale: Yale University Press Whores and Highwaymen: Crime and Justice in the Eighteenth-Century Metropolis (2012), Durston G, Sherfield on Loddon: Waterside Press Youth Justice and the Youth Court: An Introduction (2009), Watkins M and Johnson D (Foreword by Chris Stanley), Sherfield on Loddon: Waterside Press.

2  What is Criminal Justice?

Criminal justice is a particular strand of justice generally. Along with other kinds of public justice it is dispensed under the Rule of Law and other fundamental principles described in the Introduction. This chapter is concerned with the nature of crime and witnesses to it. What Happens When a Crime is Committed?

This depends on many things, procedural, discretionary (see the Introduction) or even random, e.g.: • no-one notices • people notice but do nothing • they might report the offence to the police • the police might not prioritise investigation • there may be witnesses, maybe not • there may or may not be solid evidence • there may or may not be an obvious suspect • even if a suspect is arrested, the Crown Prosecution Service (CPS) may decide that there is not enough evidence or that prosecution is not in the public interest (Chapter 3) • the accused person may be offered a caution (Chapter 5) • if the case reaches court the accused person may dispute the charge leading to a trial. These and other variants determine what happens in the course of an individual case, which will be dealt with on its own merits. And there are further possible variations if the case does come to court. A crime victim might sometimes wonder if it is worth it, especially in cases involving invasion of his or her private life, intrusive

36

CRIMINAL JUSTICE

procedures or searching cross-examination (see later in the chapter). Where someone reports a burglary, fraud or homicide, he or she, or family, neighbours and associates, may even join the list of suspects. A Few Basic Procedures

From a suspected person’s own point of view, he or she may: • be arrested and questioned • have to return to a police station for further questioning • be placed on bail (below) to ensure that he or she re-attends • have to appear in a court for it to decide whether he or she can be detained by the police beyond the limits of their own powers set out in the Police and Criminal Evidence Act 1984 (PACE)(Chapter 6 ); and • if charged with an offence (and except in unusual situations) he or she will normally need to appear in court unless offered a caution (Chapters 1 and 6 ). Whilst a case is being investigated: • the suspect may deny or admit the offence to the police, the latter by making a ‘confession’. Even then there will normally be a need for independent evidence to support (corroborate) the allegation: prosecutions are rarely brought on the basis of a ‘bare’ confession and, e.g. one made to ‘clear the books’ (or possibly to take the rap for someone else) or ‘get things over with’ are viewed with suspicion. • once arrested, DNA can be demanded which may identify or eliminate the suspect from police enquiries • once charged there may be a series of remand hearings until the case is ready to go ahead. During this time an accused person can be remanded, either: on bail (i.e. to return to court on a set date at a set time or face arrest and being charged with an additional offence, that of ‘absconding whilst on bail’); or

2  What is Criminal Justice?

37

in custody (usually meaning at a local prison although short remands can be to police cells). Bail can be conditional or unconditional. Under the former, the accused may have to live at a stated address, report to the police regularly and keep away from prosecution witnesses. • the prosecutor may continue to gather evidence from witnesses, arrange forensic tests of samples or exhibits (below) and the defence will start to prepare its case so that if there is to be a plea of ‘not guilty’ it will be ready to dispute the charge, or if a ‘guilty plea’ is put forward those matters which may go to mitigate the severity of the sentence (Chapter 7). Certain procedures are subject to time limits or involve the exchange of documents such as witness statements, ‘advance disclosure’ of the prosecution or defence case or obtaining expert reports (below). Once the case reaches court

If there is a ‘not guilty plea’ there will be a trial at either the Crown Court or in a magistrate’s court depending on which mode of trial applies (see Chapter 6 ). In an ordinary contested case: • witnesses for the prosecution will give evidence (the reader may have heard of difficulties in some cases, such as those of domestic violence, child abuse, or where the complainant changes his or her mind, or has a fear of reprisals, or the witness is too ill to travel to court) (see further ‘Witnesses’, below) • an aim will be to avoid delay in bringing the matter to trial that may affect the recollections and credibility of witnesses • the CPS may offer the accused person a plea bargain, i.e. if he or she pleads guilty to some offences, or a less serious offence, the prosecutor will drop (the formal term is ‘discontinue’) other charges or more serious charges

38

CRIMINAL JUSTICE

• if the trial goes ahead, the jury or magistrates will listen to the evidence presented by the prosecution and defence (if any) and to any legal or other permissible representations • following this they must decide whether to find the accused ‘guilty’ or ‘not guilty’ (the latter known as an acquittal: there are special rules for majority verdicts if a jury disagree); and • only if satisfied of guilt beyond reasonable doubt (below) can the jury or magistrates convict the offender. If the accused person is convicted he or she will then be sentenced as described in Chapter 7. Double jeopardy

If acquitted, the same person cannot be tried again for the self-same matter but there are now exceptions. These apart, the historic common law rule prevents someone from being tried a second (third, etc.) time for the self-same matter — aka autrefois convict. A key event in changes to the law was the acquittal of four defendants of the racist murder of Stephen Lawrence. With advances in science and technology and the potential for more reliable re-investigation (see ‘Cold Cases’ in Chapter 1), old arguments for preserving the rule to its full extent lost ground. Since 2003, the bar on a second trial does not apply in relation to certain more serious cases. ‘Double jeopardy’ has also been used to describe the situation where a foreigner faces punishment in his or her home state as well as that where an offence was committed; as per a Nigerian ‘Decree 33’ allowing drug couriers to be punished afresh in that country. Paperwork cases

Not all criminal cases involve such a massive use of resources. Provided that formalities are observed, a defendant can opt to plead guilty in writing to some minor offences following which he or she

2  What is Criminal Justice?

39

will be informed of the outcome by post (or may attend court if he or she wishes). This should be contrasted with the use by the police (or other authorities) of fixed penalty notices as described in Chapter 1. Proposals have been mooted to extend the range of cases that can be delegated to a single magistrate and dealt with on the papers. Evidence

Evidence is usually a mix of the testimony of witnesses (what they say in the witness box) and exhibits. It can be any kind of data, information, account, or material capable of supporting an inference of fact and so long as it is admissible under the rules of evidence under the common law or legislation. Evidence must be relevant to the charge or defence. Certain evidence speaks for itself, e.g. natural occurrences such as day or night: so that judicial notice is taken of them. In the Crown Court the judge is responsible for deciding what evidence is admissible, what is not. In the magistrates’ court the magistrates decide for themselves after taking any necessary legal advice. The presumption of innocence

This is the longstanding rule that an accused person is innocent unless and until found guilty by a court, or he or she voluntarily pleads guilty (now reinforced by Article 6 of the European Convention On Human Rights (ECHR): see the Introduction). It affects all stages of the criminal process prior to conviction; and is, e.g. the reason people interviewed by the police or being tried are described as ‘suspects’, ‘defendants’ or ‘accused persons’ rather than ‘offenders’ or ‘culprits’. The standard of proof in criminal cases

The standard to which and by whom a criminal charge must be proved is regulated by the common law. The leading case is still Woolmington v. Director of Public Prosecutions, a decision of the House of Lords (now the Supreme Court: Chapter 6 ) from 1932.

40

CRIMINAL JUSTICE

It established that the onus (or ‘burden’) of establishing guilt lies with the prosecutor throughout, which he or she must discharge beyond reasonable doubt. Only rarely must the defence prove anything (e.g. that the accused person had permission or in relation to certain statutory defences). Then the standard placed on him or her is a lower one, i.e. on a balance of probabilities’ (that normally used in civil proceedings). Criminal States of Mind

Under the criminal law, offences attract either ‘strict liability’, i.e. where no particular mental state need be proved, or require a particular state of mind to exist, known as mens rea. The act, event or omission, etc. prohibited by the law is known as the actus reus. Evidence of one or both of these must exist as appropriate. According to the definition of the offence (see the Introduction), mens rea may involve intention, recklessness, gross negligence, knowledge or some other state of mind (such as driving without reasonable consideration). In general, in England and Wales, offenders are judged by reference to their own (‘subjective’) intentions; but liability can turn on objective factors, e.g. if an allegation or defence involves questions whether the accused drew reasonable conclusions or acted reasonably in particular circumstances. Witnesses

Normally a ‘witness’ will be someone who: • was present at a crime scene and saw the offence taking place or heard something that was said at the time; or • in the case of a police officer, interviewed the accused person or gathered evidence; or • can confirm some link in a chain of events, e.g. the taking a statement from a witness, that forensic tests were carried out, or that an exhibit was found at a crime scene; or

2  What is Criminal Justice?

41

• is an expert and able to give an opinion within his or her field of expertise and if relevant to the case (further below). Prosecution witnesses and defence witnesses

There is no ‘property’ in a witness, i.e. they are not ‘owned’ by prosecution or defence. Ordinarily it will be plain whether a witness is giving evidence for one or the other. Occasionally, as with someone who has turned Queen’s evidence (see below) or is a ‘hostile witness’ who deliberately tries to give evidence that runs counter to what he or she has said earlier this may be less clear. These are rare occurrences. Expert witnesses

Normally a witness must give evidence of facts, not of his or her opinions. However, professionally ‘considered’ opinions can be put forward by experts. An expert is someone qualified or experienced in some field of, e.g. science or technology. He or she must first give evidence of his or her credentials, qualifications, etc. and it then remains for the judge or magistrates to decide whether to allow the opinion evidence in question. Medical and similar opinions are frequently relied on in court; although concern has arisen in some cases (those involving some child experts in particular). Expert witnesses cannot comment on the ultimate issue in a case (i.e. whether the accused person is guilty or innocent) or non-scientific matters that the jury or magistrates are equally qualified to pronounce upon. Forensic evidence

Directly linked to expert evidence (above), ‘forensics’ is a term used to describe the application of knowledge to a problem, facts, data or substances, as per the scientific analysis of human or animal remains, equipment, materials, motor vehicles, the remnants of a fire to see how it began, fingerprints or DNA. This may involve sampling, comparison with other materials, etc. and chemical or digital processes.

42

CRIMINAL JUSTICE

The Forensic Science Service (FSS) is a GovCo (private sector organization allied to government). It is staffed by expert scientists and carries out laboratory work for UK police forces and law enforcement agencies in competition with the rest of the private sector. Forensic skills of another kind are applied by certain professional people, especially Home Office pathologists and other medical people who report to courts or coroner’s inquests concerning a post mortem or the state of health of an accused person or offender. The latter may, e.g. help the court to determine fitness to plead or suitability for a particular kind of sentence (as further explained in Chapter 7). The witness oath or affirmation

The oath and its alternative binding promise, known as the affirmation, involve a degree of solemnity and ceremony whereby a witness states that he or she will tell the truth and nothing but the truth. The oath is taken holding-up the religious book of the faith concerned, such as the Bible or Koran, and repeating a standard form of words. The affirmation can be freely taken instead, and involves a straightforward, secular promise to the same effect. Evidence given on oath or affirmation is called testimony. The integrity of the CJS and public confidence in the administration of justice rests on people telling the truth when giving evidence. Perjury

UK readers are likely to be aware of two high profile perjury convictions of modern times: those of the Tory politicians Jonathan Aitken (1999) and Lord Jeffrey Archer (2001) for lying whilst they were on oath (the same offence applies to an affirmation). The false evidence must relate to a ‘material particular’ in the case. Under the Perjury Act 1911 perjury attracts up to ten years imprisonment. Jonathan Aitken received an 18 months sentence for his false evidence against the Guardian newspaper (somewhat ironically, whilst claiming to

2  What is Criminal Justice?

43

wield ‘the trusty sword of truth’). Lord Archer received four years imprisonment for a cold crime (Chapter 1) having lied on oath in an action for defamation against the now defunct News of the World, receiving damages of £500,00. A writer by profession he used his sentence to compile his Prison Diaries. As have many former offenders, both Aitken and Archer later became involved in penal reform Hearsay and other restrictions on what witnesses may say

Some ancient rules were changed or adapted by the Criminal Justice Act 2003 (and later legislation). Part of the tough on crime mantra noted in the Introduction, these allow greater leeway concerning, e.g. hearsay evidence (sometimes called second-hand evidence: although more sophisticated technical meanings apply to this term); make inroads into the historic right to silence; and allow modified use of similar fact evidence (below). Nonetheless, it can still be asserted that ordinarily a witness must give first-hand evidence, from memory and without undue prompting (‘leading a witness’), free of matters prejudicial to the accused including of his or her ‘bad character’. There is judicial discretion to disallow potentially prejudicial evidence. Previous convictions

As part of the accused’s protections, he or she cannot normally be disadvantaged by evidence of his or her bad character, e.g. an existing criminal record (although, even here, the restriction has been relaxed). Once someone is convicted that record may affect sentence. Similar fact evidence

There has been a similar relaxation of another historic rule under which evidence of the ‘similar facts’ of other cases to the one being tried could only be given if there was a striking similarity, indicative, e,g. of a distinctive personal style of offending, or modus operandi.

44

CRIMINAL JUSTICE

Evidence-in-chief

The examination of a witness begins with the prosecutor (or defence lawyer as applicable) asking questions of ‘his’ or ‘her’ witnesses. Leading questions, i.e. those which suggest the desired answer are not allowed at this stage although in modern times this rule is not always strictly adhered to, whether by agreement between legal representatives or where a witness is being ‘led’ from a statement he or she made earlier and which is not in real contention. Similarly, such tactics may be allowed where the other party makes a formal admission of the facts concerned in accordance with rules of court. Cross-examination and re-examination

Cross-examination of a witness is a technique whereby lawyers ask questions of a witness who has been called by the opposing party. This occurs after he or she has given his or her evidence-in-chief (above). The purpose is to test, undermine or contradict what the witness has already said, or to show that he or she is mistaken, unreliable or lacks credibility. Cross-examination can involve leading questions to which the witness may answer as he or she sees fit. It is open to an accused person who is not legally represented to cross-examine prosecution witnesses in person, a practice that can be problematic particularly for the victim of a physical or sexual attack or abuse. Cross-examination may be followed by re-examination, a process by which the original questioner-in-chief seeks to clarify matters arising from the other side’s cross-examination. Witness statements

Witness statement made out of court before a trial began can be used instead of live testimony if ‘formal admission’ procedures are complied with and there is no objection by the other party. Such statements (or admissions) are normally confined to non-contentious matters or formal evidence, e.g. that introducing an exhibit (below).

2  What is Criminal Justice?

45

Exhibits

Evidence may take the form of exhibits, i.e. physical ‘things’ such as weapons, drugs, samples of blood or urine, or a letter containing threats. Also known as ‘real evidence’, exhibits must be produced in court (or in unusual cases, e.g. large exhibits, the court may go elsewhere to view them). Similarly, to ‘take view’ of a crime scene or other relevant location. Exhibits may pass through several hands so that they must be linked to the case by a chain of evidence by which their identity is fully vouched for. Documents may qualify as exhibits depending on the purpose for which they are being used. Threats contained in a letter, e.g. will be admissible to prove that threat; but a description of events contained in a document, e.g. stating that someone verbally uttered threats, would be hearsay. Needless to say this is the territory of judges and lawyers. Some exhibits are self-certifiying under legislation, such as birth or death certificates or intoximeter printouts used in excess alcohol cases. Queen’s evidence

Queen’s (or King’s) evidence is a term applied to evidence given by a witness who might otherwise have been prosecuted or more severely sentenced, e.g. as part of a gang or conspiracy, but who ‘turns Queen’s evidence’ and gives evidence for the crown against his or her co-accused or defendants in what will usually be associated proceedings. This will be in the expectation of leniency, or in extreme situations no further action being taken. The latter only rarely occurs, if the public interest clearly outweighs such leniency. Video, etc. evidence

Video-recorded evidence or that captured as an image or in sound by digital or similar means, such as CCTV, is admissible provided that it is introduced by a witness under comparable procedures for other exhibits. Evidence may also be given by video link (Chapter 4).

46

CRIMINAL JUSTICE

Witness protection

Various arrangements exist to protect witness of all kinds (and police informers in particular: Chapter 5), e.g.: • the Witness Service provided by the Crown Prosecution Service or Victim Support • the law of contempt of court under which it is a criminal offence to approach or interfere with witnesses • offences of obstructing or perverting the course of justice • dedicated witness rooms and ‘chaperones’ at court • witnesses giving evidence behind screens • evidence by video-link (above) when allowed • armed witness protection officers or security guards; and • safe houses, anonymity, disguise or a change of identity. Evidence of and Safeguarding Identity

A central feature of all criminal processes is to ensure that the correct people are identified, whether as defendants, suspects, witnesses, victims or practitioners (it not being unknown for false identities to be used even here); and similarly concerning exhibits, samples, etc. Identity parades

The identity (or identification) parade, or ‘line up’ has long been part of police practice. Some have been superseded by ‘video parades’. A witness is asked to pick out the suspect from a number of people of similar appearance, build and attire. Special legal rules apply. Some developments in relation to identity

Passports, which are a central instrument for confirming the identity of an individual and essential for crossing national borders, have been subjected to increasingly sophisticated controls. The UK’s Identity and Passport Service (IPS), an executive agency of the Home Office (Chapter 3), is now the responsible agency. Passports apart, the UK

2  What is Criminal Justice?

47

has historically prided itself in being one of the few developed countries not to use identity cards; this despite their advantages in terms of crime prevention, identity fraud and border controls. Associated developments include face-to-face interviews for applicants for new passports. The National Identity Scheme (NIS) and register was an embryonic project in conjunction with proposals for such cards which was planned to be linked to an electronic database containing the details of everyone in the UK (and visiting it). The NIS and IPS also toyed with linking identity cards to biometric passports and iris recognition. The Coalition government (2010 onwards) scrapped the proposed ID cards, NIS, and forthcoming generation of biometric passports ‘to reverse … substantial erosion of civil liberties’. Safeguarding identity

Overall, this is a responsibility of the Home Office, in terms, e.g. of preventing identity fraud and other offences or actions associated with the use of a false identity; often now on the internet (Chapter 4).

Suggestions for Further Reading Crime Control as Industry: Towards Gulags Western Style , edn. 3, Christie, Nils, London: Routledge Criminal Justice: An Introduction (2012), edn. 2, Joyce P, London: Routledge ‘Giving Evidence’ at www.cps.gov.uk The Criminal Justice System: An Introduction (2008), edn.3, Gibson B, Sherfield on Loddon: Waterside Press Where Next for Criminal Justice? (2012), Faulkner D and Burnett R, Bristol: Policy Press

3  Who’s Who?

The criminal justice system can be visualised as a network of services, practitioners and others that comes together to provide a process of justice. At the highest level in England and Wales and since 2007, the following central government departments are involved: • the Ministry of Justice (MOJ) • Home Office; and • Office of the Attorney-General. The Justice Secretary and the Ministry of Justice

The duties of the MOJ created in 2007 out of the Department of Constitutional Affairs (and by taking over certain then Home Office functions) with the justice secretary at its head include: • constitutional affairs, human rights and the Rule of Law • liaison with an independent judiciary (below) • HM Courts and Tribunals Service (Chapter 7) • sentencing policy, sponsorship of the Sentencing Guidelines Council and various judicial bodies (Chapter 7) • the National Offender Management Service (i.e. National Probation Service and HM Prison Service) (Chapters 7, 8 ) • sponsorship of various inspectorates (below) • access to justice, legal aid and the Community Legal Service • Mental Health Tribunals (with the Department of Health) • juveniles involved in youth crime (with other departments) • the Parole Board (Chapter 8 ) • Independent Monitoring Boards in prisons (Chapter 8 ) • the Prisons and Probation Ombudsman (Chapter 8 ) • sponsorship of the Law Commission

3  Who’s Who?

49

• hosting the Office for Criminal Justice Reform; and • the Privy Council which in a crime context still hears final appeals from some Commonwealth-related territories. Also since the changes of 2007, an anomaly concerning the Rule of Law and separation of powers (see the Introduction and under ‘The Judiciary’, below) was corrected: that whereby the lord chancellor was head of the judiciary, served in the Cabinet and was ‘speaker’ of the House of Lords. Simultaneously, the lord chief justice was given a newly created Judicial Office. The role of lord chancellor was retained for residual purposes and is carried out by the justice secretary. The Home Secretary and Home Office

The Home Office is the oldest department of state. By 2007, it had gained many responsibilities and was described as ‘not fit for purpose’: failing to deal with court-ordered deportations of foreign prisoners after their sentences, immigration and asylum services were under strain and re-offending by ex-prisoners an increasing problem. As ‘slimmed down’, its main responsibilities are now: • public safety and protecting the public • crime prevention, crime reduction and law and order • policing (through independent local forces) (Chapter 5) • internal or ‘homeland’ security • immigration and asylum • UK border controls (below) • emergency powers (other departments may also have these) • safeguarding personal identity (Chapter 2) • crime-linked science and technology (Chapter 4); and • research and development. The home secretary has some inherent powers, including to deport or exclude foreigners from the UK if ‘not conducive to the public

50

CRIMINAL JUSTICE

good’ (as used, e.g. to keep out aliens in war-time, members of the .

Mafia, Chinese Triads, Jamaican Yardies, political extremists, suspected terrorists and preachers of hate). Home secretaries have sometimes found themselves at odds with the judiciary, e.g. over who should set sentencing tariffs (Chapter 7), detention without trial and control orders used to detain suspected terrorists without trial. Control orders were replaced by less draconian terrorism prevention and investigation measures (TPIMs). Terrorism has been a pre-occupation of the Home Office due, e.g. to the pre-Good Friday Agreement activities of the IRA and, latterly, September 11 and the July 7 2005 London bombing. There are links to the security services MI5 and GCHQ, the Office for Security and Counter-Terrorism and the Cabinet committee COBRA (briefly explained in the Glossary). The Police

The police operate at arm’s length from the Home Office. Theoretically, the introduction of local police and crime commissioners in 2011 allowed the Home Office to step-back from direct concern with everyday policing matters, giving police commissioners and local forces greater freedom to act as they see fit. The home secretary is accountable for national security and the role the police play in delivering a nationwide response to policing challenges; and answers to Parliament on such matters. The police are described in Chapter 5. Border Control

Border control involves the policing of state borders: in the interests of internal (and sometimes external) safety and security, including by keeping out undesirable aliens and would be illegal immigrants. This extends to controls on foreigners allowed into the UK as visitors, students, temporary workers, on a visa, or under open border arrangements within the European Union. Other high priorities are co-operation with the police to defeat international terrorism and

3  Who’s Who?

51

organized crime, smuggling and the trafficking of drugs and people (the latter aka ‘slavery’: a growing phenomenon). The UK Border Agency (UKBA) was launched in its present form in 2008 ‘to strengthen the powers and surveillance capabilities of those working to stop high risk targets and would-be illegal entrants’. Also styled ‘Border Force’ it is the body that deals with the expulsion of ‘over-stayers’ (those who exceed their leave to remain in the UK) and other people in the UK illegally and needing removal. Office of the Attorney General

In most common law-type jurisdictions, the attorney-general is the chief legal adviser to government, and in some jurisdictions has executive powers concerning law enforcement. Some countries have ‘procurators’, ‘advocates general’, ‘public attorneys’, ‘investigating judges’ and the like. In Scotland, prosecutions in the higher courts are conducted in the name of the lord advocate by the Crown Office: the chief law officer of the Scottish devolved government. In England, the attorney-general (or where applicable his deputy the solicitor-general) is: • a member of the Cabinet • the government’s law officer and chief legal adviser • responsible for the Crown Prosecution Service (below) • superintends the Serious Fraud Office (below) • can challenge unduly lenient sentences (Chapter 7); and • prosecutes certain cases, e.g. those that are unusually high profile, politically sensitive or involve national security. Crown Prosecution Service CPS

Historically, in England and Wales, the only route to a criminal conviction was by a private prosecution brought at the prosecutor’s own expense, e.g. by a victim, citizen or lawyers on their behalf (sometimes through ‘prosecuting societies’). This gradually passed

52

CRIMINAL JUSTICE

to the Director of Public Prosecutions in serious cases or the police and their prosecuting solicitors departments. Since the Prosecution of Offences Act 1985, the CPS has been responsible. Similar to the longer-established Crown Office in Scotland and the Public Prosecution Service in Northern Ireland, its duties include: • bringing prosecutions in cases investigated by the police (and • • • • •

when appropriate other law enforcement agencies) giving advice to the police on what, if any, charges to bring authorising all but straightforward charges discontinuing cases following an ongoing duty of review preparing and presenting cases in magistrates’ courts and Crown Courts through its own staff or outside lawyers; and deciding whether a caution is appropriate (Chapter 7).

The CPS may take over any private (or other public) prosecution except where that would require authorisation by the attorney-general. Crown prosecutors are normally solicitors or barristers. CPS staff known as designated case workers (i.e. not fully-fledged crown prosecutors) sometimes deal with lesser matters in court. Director of Public Prosecutions

The CPS is headed by the DPP who answers to the attorney-general. In the modern day, he or she has a visible public role dealing with prosecution policy, setting prosecution guidelines such as those concerning when prosecutions for ‘assisted suicide’ will normally be brought, or announcing what matters are to be targeted as a priority, such as witness care, rape, domestic violence, gangs, organized crime, hate crime and complex crime all through specialist units. Code for crown prosecutors

A Code for crown prosecutors acts as the backdrop for CPS decision-making. There is a short form of the code available to the public

3  Who’s Who?

53

and a more detailed version for internal use. The code is widely referred to by police, lawyers and other practitioners. Code tests are applied when considering whether or not to prosecute: in particular evidential, public interest and threshold tests: see cps.gov.uk. Serious Fraud Office (SFO)

The SFO is an independent government department which, like the CPS, operates under the auspices of the attorney-general. Its purpose is to ‘protect society by investigating and, if appropriate, prosecuting those who commit serious or complex fraud, bribery and corruption and helping to pursue … proceeds of … crime’.  The SFO’s stated aims are to: • reduce fraud, corruption and their cost to the state • deliver justice and the Rule of Law • maintain confidence in business and financial institutions. The SFO is made up of multi-disciplinary case teams of lawyers, financial experts and support staff. Criteria for taking on a case include whether the suspected fraud is serious or complex enough to require SFO specialisms; the value involved, traditionally whether this exceeds £1 million; international dimensions; the extent of public concern; and the need to use special powers to demand disclosure of business records or answers to investigators’ questions. The SFO has sometimes attracted controversy, not least when costly prosecutions have failed. But commentators point out that such risks are inescapable when pursuing complex investigations against people who may be able to employ high levels of legal expertise. Other Government Departments Concerned with Crime

Certain other authorities have powers to conduct criminal investigations and prosecutions (subject to the CPS taking over cases), or to offer administrative penalties. Examples include HM Revenue and

54

CRIMINAL JUSTICE

Customs; the Health and Safety Executive; and the Financial Conduct Authority which investigates insider dealing and other market manipulation: see www.fca.org.uk. In 2014, leading FTSE companies set aside over £25 billion to meet such liabilities. The Department for Children, Schools and Families is closely involved in matters of youth crime and there has been an ad hoc Cabinet Committee on Crime and Criminal Justice (CCCJ) chaired by the prime minister with senior ministers in attendance. The Cabinet Office runs COBRA, the security committee (see Glossary). The Judiciary

Judges and magistrates are jointly referred to as ‘the judiciary’. At the apex of the judiciary is the Lord Chief Justice who heads an independent Judicial Office. Similarly independent bodies include: the Judicial Appointments Commission (JAC), Office for Judicial Complaints (OJC) and Judicial Communications Office (JCO). The judiciary is particularly proud and protective of its ‘judicial independence’, a facet of the Rule of Law and separation of powers. The lord chief justice may issue Practice Directions and guidance and is generally regarded as spokesperson for the judiciary as well as its ‘eyes and ears’. He or she is also a member of the board of HM Courts and Tribunals Service. To allow discussion, the Concordat is an understanding between the Lord Chief Justice and Justice Secretary enabling matters of common concern as between the MOJ and judiciary to be considered together outside of the political arena. Judge and Jury

Above the level of local magistrates (below) and reflecting the courts in which they sit to hear cases are: • circuit judges: the mainstay of the Crown Court • recorders and assistant recorders (part-time circuit judges)

3  Who’s Who?

55

• high court judges usually from the Queens Bench Division of the High Court or ‘presiding’ at Crown Court centres • Court of Appeal Judges (aka ‘Lords Justices’) sitting in the Court of Appeal (Criminal Division) at the Royal Courts of Justice (popularly known as ‘The Strand’); and • Supreme Court Justices who deal with the highest level of appeals sitting at Westminster Guildhall. In rare instances (such as ‘complex fraud’ or jury intimidation) a judge in the Crown Court may sit alone without a jury. In all other situation, the law and admissibility of evidence in that court are matters for the judge. Matters of fact, the strength of the evidence and the decision whether to convict someone is for the jury. The historic right to trial by peers is sometimes attributed to Magna Carta and was formalised from the 17th-century onwards. A jury of 12 ordinary citizens (there are nowadays few people excluded from jury service: even a Supreme Court justice can be required to sit as an ordinary juror) is sworn in to hear evidence, determine the facts (what is true or reliable and who to believe) before pronouncing through its foreman whether the accused is guilty or not guilty. Discussions in the jury room are sacrosanct and misbehaviour, such as looking up details of the case on the internet, may be a contempt of court (and is scheduled to become an offence in its own right). Magistrates and district judges

There are over 25,000 volunteer unpaid magistrates (aka ‘justices of the peace’ or JPs) in England and Wales, an historic office traceable to 1361 and beyond. They are sometimes called ‘lay magistrates’. There are also some 200 paid professional district judges (magistrates’ courts) who have similar powers to a bench of (normally) two or three JPs. Magistrates are the ‘bottom rung’ of the judiciary but bound by the same demanding standards of impartiality and fairness

56

CRIMINAL JUSTICE

as all other judges. They deal with 97 per cent of all criminal cases from start to finish. In addition, they hear some civil matters, e.g. anti-social behaviour, child welfare and family cases. JPs are advised by a professionally qualified lawyer: a justices’ clerk or court legal adviser. They hear summary cases (lesser ones) and any either way cases they chose to retain following ‘mode of trial’: see Chapter 6. Barristers, Solicitors and Legal Aid

Barristers and solicitors are correctly described as ‘advocates’ when they appear in court to represent ‘clients’ (whether as prosecutors or for the defence), using their ‘right of audience’ to address the court. The role of crown prosecutors is described above. Independent barristers or solicitors — the former aka counsel (and whose higher ranks are called Queen’s Counsel (QC) or ‘silks’) — appear for the defence. In practice, barristers predominate in the Crown Court and the higher courts whereas solicitors tend to in the magistrates’ court. Legal aid may pay for legal representation albeit that the extent of this has diminished in recent years due to funding cuts of over £220 million a year (2014 onwards). This and associated changes have led to various long-established law firms or barristers chambers giving up criminal legal aid work altogether. In support of this, the first ‘strikes’, ‘walkouts’ or ‘non-attendance protests’ in legal history occurred in early-2014. The London Criminal Courts Solicitors’ Association has said that such cuts represent, ‘A slippery slope to a system that sees more innocent people going to jail’ and the Bar Council (the barristers governing body) that they represent a threat to ‘true justice’. The comparable solicitor’s body, the Law Society has said much the same. Self-representation

An accused person may act on his or her own behalf when the court has a duty to help him or her to put their case. Such practices can lengthen court proceedings quite considerably and tensions may

3  Who’s Who?

57

arise, particularly during cross-examination of witnesses (Chapter 2). Special advocates

A special advocate is one vetted in terms of national security, e.g. for functions related to the National Security Appeals Panel (NSAP) or Special Immigration Appeals Commission (SIAC). For this specialised area, see ‘A Guide to the Role of Special Advocates and the Special Advocates Support Office (SASO)’ at gov.uk/government/ organisations/attorney-generals-office The National Offender Management Service (NOMS)

NOMs comprises HM Prison Service and the National Probation Service. The roles of probation officers, prison governors, prison officers and some related bodies are described in Chapters 7 and 8. Social Services

This is usually a reference to a local authority social services department or its staff (social workers, social work managers, youth justice workers, etc.) who cater for the needs of youngsters (especially children) and old or vulnerable people, including those in poor health or suffering from mental impairment. Even though this work is sometimes crime-related, it may often be carried out independently of the mainstream CJS under legal duties cast on government departments and local authorities; sometimes nowadays in conjunction with education responsibilities. In a CJS context it primarily concerns: • child protection • youth offending teams (YOTs) • involvement in Multi-agency Public Protection Arrangements (MAPPAs) (see the Introduction) • Crime and Disorder Reduction Partnerships (CDRPs) • risk assessments (see the Introduction) • providing an oft-needed ‘welfare buffer’.

58

CRIMINAL JUSTICE

The Private Sector

Private sector involvement in criminal justice is now extensive. It began with the privatisation of a small number of prisons in the 1980s. Also known as ‘contracting-out’, other examples include: • CCTV, surveillance, information technology and databases • electronic monitoring of offenders (aka ‘tagging’) on community orders, home release or licence from prison • certain aspects of policing, e.g. speed camera partnerships, security systems and management of police cells • escort services of prisoners from prison to court or other public places such as a hospital and vice-versa • some aspects of probation work (set to be considerably expanded under reforms now taking place (Chapters 4 and 7)). • the provision of training and education • guard duties and other forms of ‘private policing’ (that may be hired-out to agencies within the CJS). The Voluntary Sector

Volunteers undertake a wide variety of criminal justice-related tasks. These range from facilities for offenders in the community to support for prisoners across a spectrum of learning, accommodation (including hostels), drug or alcohol rehabilitation, mentoring and support schemes. Often working under the auspices of charitable or grant-aided bodies, sometimes in partnership with CJS services, volunteers may work alongside full-time paid staff. Examples include: • ‘working-out’ schemes (i.e. outside prison) for prisoners being resettled in the community (e.g. in charity shops) • sheltered accommodation and half-way houses where those leaving prison can stay whilst overcoming ‘institutionalisation’ and as a foothold to fully independent living • back to work schemes for ex-offenders • victim and witness support (Chapter 10)

3  Who’s Who?

59

• Neighbourhood Watch and like initiatives (Chapter 6 ); and • referral schemes (see ‘Referral Agencies’, below). Referral Agencies and Referral Schemes

These are terms used to describe central or local government-funded, local authority-funded or charitable schemes to enable someone who has ‘come to the notice’ of the CJS to be referred to experts or support teams (e.g. under an arrest referral scheme; drug or alcohol referral scheme). Others involve psychiatry or psychology (when people may be referred in expectation of an assessment, report, or treatment). This may lead to a court order, e.g. to continue with attendance, treatment or education. Note: The ‘referral order’ is a special disposal of the youth court in relation to a juveniles. In lieu of sentence, the juvenile is sent before a referral order panel (aka youth offending panel) for it to consider how best to tackle his or her offending behaviour: see specialist works. Community Justice

The involvement of local communities is a features of initiatives such as community prisons (where people on the outside are encouraged to help out at ‘their prison’) and providing employment for offenders. ‘Community justice’ is an innovation in local justice pioneered in the UK by the North Liverpool Community Justice Centre (2005), and later by similar schemes in other parts of the country. Based on the Red Hook Centre, New York, USA, it is a community resource providing a court function and crime prevention measures linked to other community provision and with a judge in charge. Work often focuses on low-level offending or anti-social behaviour (Chapter 2). The judge can also try cases in the normal way and take a continuing interest in a case beyond imposing sentence, such as checking, e.g. that a community sentence is being carried out as intended or fines enforced.

60

CRIMINAL JUSTICE

Some people think of community justice in wider terms, e.g. local people having a say in what offenders do as ‘unpaid work’.

Suggestions for Further Reading A History of Criminal Justice in England and Wales (2009), Hostettler J, Sherfield on Loddon: Waterside Press The Criminal Justice System: An Introduction (2008), edn.3, Gibson B and Cavadino P, Sherfield on Loddon: Waterside Press ‘Who’s Who in the Criminal Justice System’: www.victimsupport.org.uk/helpwitnesses/your-journey/whos-who-criminal-justice-system

4  Modern Developments

A bystander of 50 years ago might not recognise the CJS of today. As well as the structural changes described in Chapter 3, there have been many advances in management, science and technology. Management

The management culture has impacted on the way services are delivered alongside strategic plans, new working methods and cuts in public expenditure: though not without concerns expressed, e.g. about: • the closing of courthouses, police stations and similar ‘rationalisations’ so that citizens find contact or attendance more remote, impersonal and lacking in local sensitivities • a reduction in the legal aid budget (Chapter 3) • less availability of offending behaviour courses, especially in prison, so that released offenders (including sex offenders) may be at-risk of re-offending; and strong concentration on just basic education or work skills (Chapter 8 ) • fewer hostels and half-way houses for those being resettled in the community • debatable shifts in the ethos of probation work (Chapter 7) • the suitability of some private sector input (below); and • loss of discretion (see the Introduction) in the face of more restrictive guidance, direction or influence. Perhaps more encouragingly in some eyes, the idea of ‘managing offenders’ has been in vogue for some years; and of they in turn managing their own behaviour: if crime cannot be eliminated, its impact can at least be diminished by crime prevention strategies such

62

CRIMINAL JUSTICE

as anger management courses, sex offender programmes and other ways of encouraging offenders to take responsibility rather than blame others. The name National Offender Management Service (Chapter 7) speaks for itself. Standards, Performance Indicators and Best Practice

Increasingly, CJS services have been subject to practice standards and performance testing, whether generated in-house or by government, such as National Standards for probation officers and performance indicators geared to targets, priorities or outcomes. The terms hard target and soft target (and target hardening/softening) evolved to signify difficult or easy targets respectively. From the 1980s at least, there were efforts to drive-up performance through the use of key performance indicators (KPIs), linked to objectives such as effectiveness and efficiency, value for money and best value. Standards exist in other crime-related contexts, such as parenting standards with regard to children at risk of offending; whilst standards in public life have guided the practices of public officials. Best practice can be described as the generally endorsed way that something should be done or dealt with. The term usually connotes that competing practices have been considered, often by an appropriately constituted working group or committee, before ‘Best Practice Guidelines’ are promulgated. The term has even been used in relation to the work of the courts; and judicial decision-making on occasion. Liaison and Partnership

The idea of ‘working together’ is touched on in Chapter 3. Alliances between departments, agencies and services are nowadays the norm: a key mechanism in bringing about a system rather than a mere process of criminal justice. Central to crime prevention are local multi-agency Crime and Disorder Reduction Partnerships (CDRPs) described in Chapter 5; and at the highest level the Cabinet’s own Committee

4  Modern Developments

63

on Crime and the Criminal Justice System (CCCJS). Partnerships occur at all levels, reinforced with liaison meetings, joint training and cross-agency developments. This contrasts markedly with the guardedness that used to inhibit cooperation. Courts retain their traditional independence, but even HM Courts and Tribunals Service has described itself as An agency of the Ministry of Justice [that] uniquely operates

as a partnership between the Lord Chancellor, the Lord Chief Justice and Senior President of Tribunals … 

Scrutiny

The need for accountability of public functions was mentioned in the Introduction. Central to the integrity of the entire system has been the emergence of independent mechanisms to audit, examine, monitor, inspect or review activities, such as: • inspectorates (see below) • the Criminal Cases Review Commission (see Chapter 7) • Independent Police Complaints Commission (Chapter 5); • Prisons and Probation Ombudsman (Chapter 8 ) • Independent Monitoring Boards (Chapter 8 ); and • the Audit Commission and National Audit Office (NAO) which have from time to time examined areas of work such as youth justice. An example, from 2014, is an NAO report warning that over 80 per cent of the £920 million owed by ‘convicted millionaire criminals’ is yet to be paid by them, with some of this dating back as far as 1987. The four inspectorates set out below have a history of working together with a view to general or specific improvements. A Criminal Justice Chief Inspectors Group (CJCIG) now meets regularly to co-ordinate ‘programmes of collaborative working’. The chief

64

CRIMINAL JUSTICE

inspectors have stated that: Working together produces a more rounded examination of issues that cut across the system and enables us to achieve more than if just one inspectorate acted alone.

They went on to emphasise that inspections support democratic accountability, local transparency and the drive to reduce bureaucracy: a focus on systemic issues, cost, addressing risk and public safety; looking at the system ‘end-to-end’. The inspectorates are: • HM Inspector of Constabulary which dates from the County and Borough Police Act 1856, inspectors being appointed by the crown on the recommendation of the home secretary. The chief inspector, who is also the Home Secretary’s principal policing adviser, is independent of government and the police. Functions include: certifying police forces as efficient and qualified to receive a grant. • HM Crown Prosecution Service Inspectorate which is the independent inspectorate for the CPS (Chapter 3). Its purpose is ‘to enhance the quality of justice through independent inspection and assessment of prosecution services, and in so doing [to] improve … effectiveness and efficiency’. • HM Inspectorate of Prisons Each prison is inspected periodically by a team of full-time or specialist inspectors. HMIP publishes an annual report as well as one of each inspection: general or thematic (i.e. the latter on specific aspects of the prison system). Overall, it looks at the treatment of prisoners, regime quality, the morale of prisoners and staff, the quality of healthcare, the way in which an individual establishment is managed and the physical condition of prisons. The chief inspector reports to the justice secretary, and HM Prison Service must publish a considered reply. Seemingly less officially

4  Modern Developments

65

restrained than other inspectorates, reports have often been critical of conditions in custody as well as prison regimes or purposes. • HM Inspectorate of Probation which provides ministers and officials with advice on probation matters and promotes the development of effective management and practice. As with prisons, there are two kinds of inspection: local or area inspections (aka quality and effectiveness inspections); and thematic inspections (above). Presaging joint inspections, reports have sometimes contained recommendations cutting across the criminal justice services. Additionally, but abolished in 2013, HM Inspectorate of Court Administration was established by the Courts Act 2003. Its remit included inspections and reports to the justice secretary on court administrative support systems: excluding the work of people ‘making judicial decisions or exercising any judicial discretion’. Enhanced Procedures

Procedure is a word used to describe those aspects of the criminal process which affect how casework is organized by the various agencies, or a case proceeds in court. Procedures may have a statutory basis, such as under the Police and Criminal Evidence Act 1984 (PACE), Magistrates’ Courts Rules or certain Crown Court Rules. New procedures have streamlined the way services are delivered. Serious cases are now transferred from the magistrates’ court to the Crown Court more speedily than before. Historically, JPs sat as ‘examining justices’ to hear a ‘rehearsal’ of the prosecution case before deciding if it should go to the Crown Court for trial. Nowadays serious cases are sent to the Crown Court at the outset. Similar developments have occurred across the system.

66

CRIMINAL JUSTICE

Time Limits and Timetables

Another relatively modern development has been the introduction of time limits of a kind that have long existed for, e.g. commencing summary proceedings or lodging an appeal. The adage is ‘justice delayed is justice denied’. They include detention and custody time limits: hence the ‘PACE clock’ mentioned in Chapter 5. Normally a pre-sentence report (PSR) must be produced within 21 days after conviction (Chapter 7); and in suitable cases ‘stand-down’ reports prepared the same day have been used. Timetables may be set, usually meaning in terms of the courts by a judge, magistrate or court administrator with a view to progressing a criminal case, especially at a directions hearing or as part of case management. Waiting Time and Response Times

‘Waiting times’ between events or stages within the criminal justice process (in some instances called ‘response times’) have been a target for reduction. They include the time it takes for the police to attend a crime scene following an emergency call; reporting an offence to when an investigation happens; for the CPS to make a decision concerning prosecution; or for getting a case to trial. Some cases are ‘fast-tracked’, a technique that has been used, e.g. when mass arrests have followed riots or demonstrations (though not without controversy due to the claims of civil and human rights groups in particular concerning the danger that rights may be trammelled on). Similarly, the time between a referral and an assessment; reception into prison and prisoner ‘allocation’; or devising a sentence plan in prison. Science and Technology

Over the past 20 years, computers, their programmes and other facets of information technology (IT) have led, e.g. to: • changes in the ways that criminal justice services operate, communicate, record and process matters

4  Modern Developments

67

• new offences and new ways of committing offences • online systems for reporting crimes, whether to the police Crimestoppers or Neighbourhood Watch: Chapter 5 • developments such as the Police National Computer and other enhancements in policing noted in Chapter 5. At a governmental level, scientific developments are primarily a responsibility of the Home Office but other services also have scientific departments or joint working arrangements. Advances include: • CCTV (even ‘talking cameras’ that can issue a warning) • in car or head-mounted cameras for police officers • increased surveillance (see further below) • automated number plate recognition (ANPR) • biometric, iris and face recognition technology • rapid communications (see, e.g. the Scanning Analysis Response Assessment (SARA) system noted in Chapter 5) • advanced data-sharing by investigators • electronic monitoring of people, animals or property • heat imaging that can be used to pinpoint the position of a human being or animal, including from the air • global satellite positioning (GSP) (including by tracking mobile telephones, electronic tags or sat navs) • tape and video recording (below) • hand-held drug-testing devices • non-lethal force such as the Taser-gun and pepper spray • electronic batons and powered battering rams • DNA-testing (or ‘genetic fingerprinting’) • widespread use of mobile telephones often incorporating a camera so that crime events may be recorded in real time • internet-based investigations, including retrieval of ‘deleted’ e-data and searching for traces on the web

68

CRIMINAL JUSTICE

• advances in mechanisms to confront identity fraud, in essence passing oneself off as someone else for criminal purposes, one of the fastest growing types of crime, aided on the web by ‘anonymity’: see also ‘Cybercrime’, below • developments in the work of Forensic Science Services • the work of the Home Office Scientific Development Branch which provides ‘advice, support, innovative technology and capability to … achieve … key objectives of protecting the public, reducing crime, especially drug-related and violent crime, and managing migration’. Tape Recordings, Video Recordings and Video Links

A video link is a real-time TV link, usually meaning from a cell or other part of a prison to a courtroom. It can also be used between other locations, as where someone gives evidence in a UK court from abroad when legally possible. Live links are regularly used for the purposes of remand hearings so that the accused person does not need to leave prison: particularly useful in terms of security but also saving resources that would have been needed to escort a prisoner to court. Some CCTV and other recording systems allow real-time analysis. Cases committed or solved using video or digital recordings

Not only have various offences come to notice and been solved due to having been recorded ‘on video’ but video has served a wider purpose as can be seen from the following diverse list: • incidents of ‘happy-slapping’ (or ‘snapping’) have been solved when an offender (or his or her associates) has filmed random physical attacks, leading in some instance to convictions of gangs for murder or manslaughter • there have been instances of police officers sentenced to s imprisonment after being filmed kicking or beating people

4  Modern Developments

69

• offences have been committed or solved using YouTube, some-

• • • •

thing that has proved costly, e.g. for those issuing threats or making ill-judged ‘criminal’ remarks similarly there have been criminal postings on Twitter viral videos have been used to damage computer systems extensive public debate around the videoed murder mentioned under ‘The Rule of Law’ in the Introduction; and the use of Video Identity Parade Electronic Recording (VIPER) which is transforming identification parades.

Cybercrime

Quite apart from some of the items already mentioned, the internet has revolutionised the way in which certain crimes are committed, or policed and led to the creation of new statutory offences. The term ‘cybercrime’ has been coined to refer to a wide range of offences committed ‘in cyberspace’. Hence also cyber-policing, the existence of a Virtual Global Taskforce (Chapter 6 ) and the work of the UK Internet Crime Forum (ICF) that exists ‘to promote, maintain and enhance an effective and proportionate working relationship between industry, government and law enforcement to tackle crime and foster confidence in the use of the internet’. The term ‘cybercrime’ has been used in two main senses: • to signify internet-based ways of committing ‘traditional crimes’, such as fraud, harassment, use of a false identity or transmission of indecent images of children; and • by purists who limit it to offences that could not happen but for the internet, such as hacking, denial of service attacks or deliberately spreading a computer virus: DNA

A central improvement in the way that evidence is garnered is DNA testing which leaves little or no room for doubt, e.g. about whether

70

CRIMINAL JUSTICE

someone was present at a particular crime scene on a specific occasion. Also known as genetic fingerprinting, DNA can be used to trace people other than suspects. Whilst still important, there has been a corresponding reduction in the significance of traditional fingerprinting although this is still used, including by scenes of crime officers (SOCOs) and alongside ‘mugshots’ in prisons. Another significance of DNA is also noted in relation to ‘Cold crimes’ in Chapter 1. The speed and extent of developments in relation to DNA is well-demonstrated by an announcement made by Pennsylvania State University, USA in 2014. Even a latter-day George Orwell might never have imagined scientists there would have created a computer programme that (in time) will be capable of printing-out a three dimensional facial reconstruction from a sample of DNA. Surveillance, Databases and Suspicious Activity Reports

Surveillance in its many forms is not just a modern-day phenomenon but technology and the existence of electronic databases has allowed it to thrive. Ranging from CCTV to shared information in police and other public or commercial records, some commentators have claimed we are moving towards a surveillance society. Surveillance may mean keeping watch over individual members of the public covertly or observing events as they happen quite openly. Much modern-day surveillance is overt, as with most CCTV. Civil liberties groups argue that the UK is the most ‘watched over’ country in the world; exacerbated by concerns about the large number of law enforcement agencies who are authorised to use or access such resources, including under the pretext that they are exercising (widely drawn) terrorism or other crime prevention functions. They point to how the opening-up of files under the Freedom of Information Act 2000 has shown how much in the past the police or security services have been involved in reinforcing the political priorities of governments or covering-up malpractice. They point to allegations

4  Modern Developments

71

concerning the monitoring of a range of ‘questionable’ groups from the 1970s onwards, the families of victims of the Hillsborough tragedy (Chapter 5) and of those connected to Stephen Lawrence (which in 2014 led the home secretary to announce a judge-led inquiry into covert surveillance methods and police corruption in general). Other than purely covert activities, everyday police control rooms and command centres (Chapter 5) are routinely linked to CCTV and GPS monitoring centres where locations are kept under observation and events can be recorded and analysed as they unfold. Suspicious activity reports

In its expanded meaning, the term surveillance is now regularly applied to forms of retrospective surveillance, as where the records of a bank, supermarket or internet provider are accessed under legal powers or must be disclosed following a ‘suspicious activity report’ (SAR). In modern times extensive duties have been placed on banks, lawyers, accountants and others with access to the monetary dealings of others to make SARs, particularly concerning potential money laundering, which has significant connections to organized crime, illegal drugs, the sex industry, tax evasion and trafficking of all kinds. Databases

At a national level these include the computer-based Criminal Records Bureau and Driver and Vehicle Licensing Agency (linked to automated number plate recognition (ANPR)). Anyone who travels by air must provide advance passenger information (API) (which will also apply to sea travel and eventually, it has been suggested, to other public transport). What is unique is the growth of European and international databases or those shared between member states of the European Union and more globally. It must be borne in mind that many such databases have significant private sector involvement or investment and that their use is often driven by factors outside of state control.

72

CRIMINAL JUSTICE

European and international databases

Across Europe, the police-linked multi-agency Internet Watch Foundation co-sponsored by the European Union (EU) enables unlawful activities such as child sexual abuse, obscenity and (in the UK) racially-motivated offences to be reported online (see www.iwf.org.uk). Electronic Monitoring

Closely allied to surveillance is monitoring for a specific purpose that takes place from a remote control room via an electronic tag which is attached to the wrist or ankle (usually) of an offender or accused person as part of (or alongside) a generic community sentence or home detention curfew. This type of monitoring can also be used for crime prevention purposes, such as the tagging of domestic or farm animals or personal property. Targeting Crimes, Suspects, Outcomes and Proceeds

Targeting is a standard approach of policing but what is new is the intensity with which it is nowadays possible to focus an investigation, project or operation. There is, e.g. a modern emphasis on targeting the proceeds of crime (below). Similarly, concerning those crimes prioritised by law enforcement agencies. The range may be broad: cybercrime (above), drug-misuse, paedophilia, unfit food and domestic violence or, at a lesser level of seriousness, road traffic offences, TV licence evasion or anti-social behaviour. Targeting is also a term used to describe an offender focusing on an intended victim: especially a hit-man, predatory offender or someone engaged in fraud or deception. The ‘target culture’ has been driven by those targets set by government for an agency, service, etc, or by the agency itself, such as one to achieve a given level of service or throughput. Some such targets have proved controversial, especially if they invite fast-tracking of a kind that might place justice at risk, or ‘net-widening’: prosecuting

4  Modern Developments

73

an ever-widening group of people to ‘bump-up the figures’. Proceeds of crime

There are various methods by which an offender can be relieved of or made to surrender the proceeds of crime, including where these are seized during a raid (Chapter 5) or via a civil claim. The Proceeds of Crime Act 2002 introduced the short lived Assets Recovery Agency to investigate and recover wealth accumulated through criminal activity. Consolidating and strengthened those arrangements, this is now part of the remit of the National Crime Agency (Chapter 5). Those surplus proceeds of crime recovered have been channelled into a variety of crime reduction initiatives. Suggestions that more remote proceeds might be targeted, e.g. royalties from ‘offender memoirs’ have foundered as being potentially unfair or the scheme unworkable. Profiling

This is a generic term for the creation of a synopsis, building on significant features from a mass of data, samples, evidence or research to produce an underlying picture: as with offender profiling, as practised by criminal psychologists (Chapter 10).

Suggestions for Further Reading ‘Creating a Swift and Sure Criminal Justice System’: Press release ( July 13, 2012) at gov.uk/government/news/creating-a-swift-and-sure-criminal-justice-system Towards a Surveillant Society: The Rise of Surveillance Systems in Europe (2013), Mathiesen T, Sherfield on Loddon: Waterside Press ‘Ten Modern Forensic Techniques’: www.forensicscolleges.com

5  The Police

When the police are mentioned it is natural to think of ordinary uniformed officers in local areas. Covering the UK are various geographic (or ‘territorial’) police forces: • the Metropolitan Police Service (MPS) (see later) • the quite separate City of London Police • forces across the rest of England and Wales for one or more counties or part of a county such as Hampshire Police, Devon and Cornwall police or West Yorkshire Police, respectively. There are 41 such forces (2014) • Scotland Police formed in 2013 by the amalgamation of eight Scottish regional police forces and the Scottish Crime and Drug Enforcement Agency; and • the Police Service of Northern Ireland (that replaced the historic if controversial Royal Ulster Constabulary in 2001). At a time of financial stringency, the trend is to amalgamate forces, which can be contentious. There are also a number of specialist forces such the British Transport Police and Ministry of Defence Police. All enjoy ‘operational’ or ‘constabulary’ independence. ‘Policing’ may also be used to describe the work of other state-led enforcement agencies (Chapter 3) or even security guards, night watchmen or sentries. Policing by Consent

A central tenet of policing in a democratic society is that the police can only function with the support and confidence of the public, i.e. they act for citizens not over them. In his 1956 classic text, A New Study of Police History (London: Oliver and Boyd), Charles Reith

5  The Police

75

dealt with this as follows. The police should (summarised): • prevent crime and disorder, as an alternative to their repression •

• •

• • • • •

by force and punishment recognise that the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions, behaviour, and public respect recognise this means willing public co-operation recognise that the extent to which that co-operation can be secured diminishes proportionately the need for the use of force and compulsion. seek and preserve public favour (irrespective of pressures) use physical force only when the exercise of persuasion, advice and warning is insufficient maintain a relationship that gives reality to the tradition that the police are the public and the public the police recognise the need for strict adherence to police-executive functions; not usurping the powers of, e.g. judges, the state recognise that the test of police efficiency is the absence of crime and disorder, not visible evidence of police action.

The modern reality of policing by consent is reflected in various consultative groups and community partnerships (below). Aims of Policing

An enduring statement of police aims appeared in 1993: To fight and prevent crime; uphold the law; bring to justice people who break the law; protect, help and reassure the community; and provide value for money: ‘Police Reform’ White Paper.

76

CRIMINAL JUSTICE

Police State

This is the antithesis of policing by consent and connotes arrangements whereby the police themselves, in league with rulers, decide autocratically how policing should be carried out. In extreme instances and in conflict with the Rule of Law (see the Introduction) this can extend to them setting criminal laws, peremptory arrest, summary police-administered punishments and detention without trial. In a much lesser sense the term is sometimes used to criticise any heavy-handed or aggressive tactics even in democratic societies. Police Reform

Following earlier and sometimes contentious attempts to improve policing, its structure, powers, accountability, ethics and root out corruption, the Police Reform Act 2002 introduced a National Policing Plan and: • allowed the home secretary to issues codes of practice and make regulations about equipment, procedure or practice and to intervene if a force is ‘manifestly failing in its duties’ • conferred fresh and extended powers on HM Inspectorate of Constabulary (HMIC) (Chapter 4) • created the Independent Police Complaints Commission (IPCC) to deal with complaints referred to it by chief constables or targeted by the IPCC for investigation (including all deaths at police hands or on police premises); and • permitted chief constables to give police powers to civilians. Police and Crime Commissioners

In many parts of the world the term ‘commissioner of police’ is used to describe the most senior rank within a police force, the person in charge of operations, usually an experienced senior officer. It may also be used where there is an elected commissioner accountable to the public for overall police provision and a separate police professional

5  The Police

77

who heads the force itself and is in of day-to-day command. In England and Wales, beyond London (where the MPS chief of the police is (confusingly) styled ‘commissioner’ and accountable to the Mayor of London, police and crime commissioners are directly-elected, paid officials charged with making arrangements for effective policing of their area. They are not police officers but hold their own chief constable (below) to account. Some criticism has been levelled at this relatively new system, not least due to the low turnout when elections were held for the first such appointments in 2012. Chief Constables

The MPS apart (where, as stated above, a commissioner of police heads the force), each police force has a chief constable. They are appointed by and report to their own police commissioner who fixes the strength of the force (subject to approval by central government) and provides buildings, equipment and resources (sometimes subject to a government grant). The local commissioner and his or her committee can advise a chief constable, e.g. on priorities, and acts as a sounding board for local public opinion. Command and Control

Within police forces the conventional unit of direction is the basic command unit (BCU). The oft-heard demand for ‘bobbies on the beat’ no longer reflects reality in an age of instant communications, central control rooms and rapid response times. However, credence is still placed on operating visibly (but subtly) in neighbourhoods and often there is a dedicated officer for a local area. Beat policing stemmed from the early days of policing and London’s Bow Street Runners. Modern-day policing methods include: • neighbourhood or community policing of routine matters

78

CRIMINAL JUSTICE

• specialists for various types of more serious crime, e.g. firearms

•

• •

• •

units, search teams, murder squads, vice squads, drug squads, rape investigators and domestic violence teams patrol cars policing crime in general in towns and cities and road traffic police, nowadays aided by vehicle inspectors and highways officers, e.g. to patrol motorways riot squads to respond to serious public disorder rapid response units (RRUs), territorial support groups (TSGs) and other police support units (PSUs) to provide general or specialist ‘back-up’ as needed record checks on those seeking or working in certain jobs or positions; and victim liaison officers (Chapter 9).

Readers will be familiar with news that officers have been sent from one area to another under inter-force arrangements to deal with an emergency, demonstration or event, or the Home Office announcing that special arrangements are being made by the police where the national interest is involved. In some instances the police role may be supplemented or replaced by security guards, especially in privately owned public spaces, or the army as happened with the London Olympics of 2012 when private security arrangements faltered. Police Constables and Other Police Personnel

All police officers, of whatever rank, are described as constables. They may be referred to as ‘warranted officers’ who take an oath as follows: I John Smith of X Constabulary do solemnly and sincerely declare and affirm that I will well and truly serve the Queen in the office

of constable, with fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal respect to all people; and that I will, to the best of my power, cause the

5  The Police

79

peace to be kept and preserved and prevent all offences against

people and property; and that while I continue to hold the said office I will, to the best of my skill and knowledge, discharge all the duties thereof faithfully according to law. Custody sergeants and custody officers

When someone is arrested and taken to a police station the designated custody officer, normally a sergeant, has various responsibilities as described later in this chapter under ‘Arrest, Detention and Charge’. They are aided by custody officers (aka ‘gaolers’) who may be police officers, civilian employees (below) or private sector partners. Police community support officers

PCSOs were first introduced in London 2002 and now exist nationwide. They are paid officers of a lesser rank than that of police officer. They re trained to undertake patrols and other more routine policing duties. They wear uniforms with distinctive PCSO markings, can detain people, but are ‘unwarranted’ and have no powers of arrest. An effect of an ongoing struggle to make economies is that less expensive PCSO staff complements have remained static in some areas even when warranted police officer posts have been reduced Special constables

Volunteer specials constables have a much longer history, their function being different to that of PCSOs. The roles now exist alongside one another, special constables being unpaid. They are trained to and assist full-time police officers, usually for several hours per week, wear a uniform and are normally invested with police powers. Police civilian staff

The police employ civilian workers to carry out behind the scenes tasks, e.g. of an administrative or financial nature; or of a specialist

80

CRIMINAL JUSTICE

kind, such as carrying out criminal record or vehicle registration checks using national databases. Civilians are also employed independently, e.g. as police surgeons to medically examine a victim of crime, or suspect, for injuries or his or her capacity to be interviewed or make a statement. Similarly, forensic experts, some scenes of crime officers (SOCOs), technocrats and public relations officers work in this way. Routine policing tasks such as taking statements can also be carried out by retired ex-officer ‘civilians’ from another force. Criminal Investigation Departments

Local CIDs conduct investigations into more serious crimes, usually using plainclothes detectives. CIDs have their own structures and ranks, but mirror those for the police service in general, e.g. detective constable, detective sergeant, etc. Where the offender is not caught ‘red-handed’, they solve crime by investigating the circumstances, interviewing witnesses, examining exhibits and identifying suspects. ‘Sting’ and similar operations apart, the police rarely ‘stumble on crimes’. It has been estimated, e.g. that on average an officer will do so only once or twice in his or her entire career. Rather, they try to prevent crime and follow-up crimes reported by the public. Much detective work involves painstaking routine matters, chasing leads, searching records. This is aided by technology: CCTV, electronic ‘rogues galleries’ (mugshots), e-fingerprinting and DNA-testing. Officers have access to ‘Holmes’ the Police National Computer (PNC) (below) and Criminal Records Bureau (CRB) plus links to the UK Border Agency, Driver and Vehicle Licensing Agency (DVLA), insurance company and other records. The National Crime Agency

The NCA describes itself as a ‘crime-fighting agency’ with national and international reach and a mandate to work in partnership with other law enforcement organizations. The idea is ‘to bring the full

5  The Police

81

weight of the law to bear in cutting serious and organized crime’. The NCA responds on a 24-hour a day basis, targeting criminals and groups posing the greatest risks to social harmony. It does so by: • carrying out its own operations • giving operational and specialist support to partners • providing clear national leadership as required • making sure that UK law enforcement makes the best use of its collective resources and targets these effectively. The NCA, which became operational in October 2013, maps serious and organized crime, drawing on information and intelligence from a wide range of police and other sources by:  • pursuing, prosecuting and disrupting those involved • preventing people from becoming involved in crime • protecting others against serious and organized crime; and • reducing the impact of crime which does occur. The NCA operates across the UK, notwithstanding devolution of policing in Scotland and Northern Ireland; also linked to international policing organizations (below). One of its main tactics is to bring consistent lawful pressure on those who commit serious crime whilst seeking evidence to secure criminal convictions; in relation to the NCA’s predecessor described as ‘harry, hassle and hound’.   Police National Computer

The PNC is a secure nationwide database operated by the NCA (above) which, since 1974, has been relied upon increasingly by police and other authorised UK law enforcement agencies. It contains several million records of people, vehicles, property, drivers and related matters and is a key resource for investigators. There is a PNC Code of Practice which was first issued in 2005.

82

CRIMINAL JUSTICE

European and Other International Dimensions

Increasingly, policing and surveillance (Chapter 4) have taken on global dimensions as evidenced, e.g. by a Virtual Global Taskforce to fight cybercrime (Chapter 4). Across Europe, Europol aims to improve ‘the effectiveness and co-operation of the competent authorities in member states in preventing and combating terrorism, unlawful drug-trafficking and other serious forms of international organized crime’. It has links worldwide: see www.europol.europa.eu Interpol is the world’s largest international police organization, with some 200 member states. Created in 1923, it facilitates cross-border co-operation and provides help and support to all ‘whose mission is to prevent or combat international crime’, even when diplomatic relations do not exist between states. It acts within the limits of national laws and the spirit of the Universal Declaration of Human Rights. Interpol’s constitution prohibits ‘intervention or activities of a political, military, religious or racial character’: see www.interpol.int Extradition and Deportation: A Note

All police forces as well as the UK Border Agency may be concerned with matters of extradition (the removal of suspects from one jurisdiction to another) and deportation (the expulsion of foreign nationals). The existence of a European arrest warrant has simplified the transfer of arrestees between jurisdictions within the European Union. Elsewhere, other services may be involved, such as the USA’s Federal Bureau of Investigation (FBI). Such transfers occur through a mix of international treaties, conventions and domestic laws. Concern has been expressed in modern times about the wide self-conferred powers of the USA to extradite people from Britain and elsewhere to the USA, on a lesser basis than in the opposite direction. There have been a number of long-running UK legal cases concerning transfer of suspects to the USA, sometimes resulting in convictions and sentences in that country: as with the ‘NatWest’ or ‘Enron’ Three, UK

5  The Police

83

businessmen imprisoned in Houston, Texas in 2006 for the white collar USA federal crime of ‘wire fraud’. Other long-running sagas include the case of the alleged computer hacker Gary McKinnon (2002-2012), a UK citizen diagnosed as suffering from Asperger’s Syndrome, where the home secretary eventually refused extradition on the basis that it would be disproportionate; and Wikileaks founder, Julian Assange who in 2012 sought asylum in the London embassy of the state of Ecuador (where he remains in early-2014) claiming he might face the death penalty in the USA on charges of ‘communicating with the enemy’. He was on bail in England facing extradition to Sweden where he feared onwards extradition to the USA. Police Membership Organizations

Various bodies represent police officers of different ranks, i.e. the: • Association of Chief Police Officers: www.acpo.police.uk • Police Superintendent’s Association: policesupers.com • Police Federation, the staff association for police officers up to and including the rank of chief inspector; as created by the Police Act 1919, after a strike by the then unrecognised National Union of Police and Prison Officers: polfed.org • National Black Police Association which accepts and speaks for black police officer members of all ranks: nbpa.co.uk. The Metropolitan Police Service

The MPS is responsible for policing London as well as, e.g. matters of national security, counter-terrorism and protecting the royal family. It was formed as the New Police for London in 1829, since when it has established a unique place in the annals of policing internationally. Founded by Sir Robert Peel with 1,000 officers it now employs over 30,000, some 13,500 police staff, over 400 traffic wardens and 2,000 PCSOs (above). It covers an area of 620 square miles and a population of 7.2 million. A wealth of information is available at www.met.

84

CRIMINAL JUSTICE

police.uk where it is also possible to sign up for MPS e-bulletins. The MPS has been at the centre of various controversies. The 1970s in particular saw concerted attempts to weed out corruption. Notoriously, in more recent times, the Macpherson Report into the Stephen Lawrence case (1999) branded the MPS institutionally racist; the Stockwell shooting (see the Introduction) and that of Mark Duggan in 2013 both highlighted problems associated with armed police; the ‘Plebgate’ affair of 2012 led to an officer going to prison for smearing a member of the Cabinet; and a number of MPS officers have been embroiled in ongoing cases connected to phone-hacking and the provision of confidential information to the media. In terms of public perceptions of the police as a whole these events are frequently the subject of debate along with the as yet unresolved role of police officers from other forces in the Hillsborough, Sheffield football stadium disaster of 1989 when 96 Liverpool fans were crushed to death. It is alleged statements were altered to correspond with the official police account and victims families placed under surveillance. Scotland Yard

Scotland Yard is still used to denote the CID of the MPS. It is also used to describe the entire MPS on occasion, its headquarters being at New Scotland Yard. Historically, Scotland Yard is the location of the headquarters of the Investigative Branch of the MPS, off London’s Embankment, north of the River Thames. It is associated with such iconic tasks as those of its ‘Flying Squad’ of detectives. The MPS still aids other forces on request as well as having a nationwide profile in relation to major crimes affecting the UK. The Police Station

A key focus of policing is the local police station, albeit these are decreasing in number due to rationalisation and streamlining of services. Some are ‘designated’, i.e. nominated by the chief constable,

5  The Police

85

for the purposes of interview, detention and charge, etc. under the Police and Criminal Evidence Act 1984 (PACE) (see below). Arrest, Detention and Charge

The process of police investigation is aided by powers of arrest, detention and charge as governed mainly by PACE and the PACE Codes. The police have wide powers of arrest under the general law or in relation to specific offences; since 2003 they can arrest people for virtually any criminal offence. Procedures then depend on whether or not the offence is a ‘serious arrestable offence’ (as listed in PACE). With such offences a superintendent or an officer of higher rank may extend the basic holding period and authorise delay in an accused person contacting anyone if this might hinder the investigation. If someone is arrested ‘on suspicion’ of committing an offence he or she may be held in police detention and interviewed in accordance with PACE, meaning nowadays a tape-recorded or video-recorded interview in a custody suite or other room on police premises. He or she can be released on police bail to return to the police station in the future for questioning to continue. Alternatively, if the police need further time before such release, they can apply to a court for a warrant of detention (or, subsequently, of further detention). This is governed by ‘the PACE clock’. If on a compulsory review by the custody sergeant it becomes clear that detention is no longer justified the suspect must be released. But detention can in some instances be authorised by a senior officer until 36 hours from arrest or by a court up to 96 hours. Detention powers have been increased concerning terrorism, so that those involved can be held for up to 28 days (a move to increase this to 48 days having been defeated in the House of Lords in 2008). As mentioned earlier in this work, the control order introduced by the Prevention of Terrorism Act 2005 was held discriminatory and disproportionate and replaced by the TPIM in 2012 (Chapter 3).

86

CRIMINAL JUSTICE

Once someone is charged with an offence he or she must be brought before a court or released on bail to appear in court to answer the charge. The police can grant bail to someone at the police station or in some cases on the street: known as ‘street bail’. Other commonplace arrest-related scenarios with or without a court warrant as appropriate include: failure to surrender to bail or breach of bail conditions; non-payment of a fine; breach of a community sentence; or being unlawfully at large, i.e. following an escape from lawful custody; or for the person’s own protection. Various arrest referral schemes now exist (Chapters 1, 2 and 7). Bail

The Bail Act 1976 confers a right to bail, i.e. a right not to be held in custody unless a statutory exception to that right exists. If a court is satisfied that e.g. the accused would disappear or interfere with witnesses if released he or she can be remanded in custody, usually for not more than eight clear days at a time pending trial. The court must state its grounds and supporting reasons. Longer remands in custody are possible with the accused’s agreement, up to 28 days at a time, or for any period once the case reaches the Crown Court. In practice remands for over a day or so are to prison not police cells. Following conviction and pending sentence, the custody limit is normally 21 days and no further explanation is required other than the likelihood that the offender (which he or she now is) might abscond or that custody is necessary to obtain a pre-sentence report (PSR). Search and Seizure

Under both the general law and special statutory provisions the police may search people, premises, vehicles, boats and other craft; under their own powers or with a court warrant. They may seize items or records which they believe to be evidence or proceeds of crime or that might be used to commit crime. Commonly nowadays computers

5  The Police

87

and mobile telephones are seized for the dates and traces of activity and communications that they contain. Raids

In order to search premises and make arrests, there may be an unannounced police raid. Similarly, e.g. to free of a hostage. Many routine raids take place at dawn, ostensibly because this allows the rest of the day to process any ‘finds’. Modern tactics include the use of powered battering rams to gain entry and enhance the element of surprise. The police can secure a property believed to be the scene of a crime or item used for committing it and frequently use cordons (‘taping-off’ an area such as a murder scene), They may need to call in forensic investigators (Chapter 4). Processes exist for the return of ‘police property’, if necessary via court proceedings. Stop and search

The stopping and searching of someone in a public place ‘on reasonable suspicion’, e.g. to look for drugs, weapons or stolen property, aka ‘sus’, is a special version of the police search. There has frequently been controversy about discriminatory practices and stereotyping, mainly of young black people. Nonetheless, ‘sus laws’ have been extended and safeguards relaxed concerning terrorism so that with such offences anyone can be searched on the merest pretext; a situation that makes stop and search yet further open to abuse. Police Partnerships

Partnerships exist with various other agencies and bodies, including through local authority Crime and Disorder Reduction Partnerships (CDRPs) and other investigators as noted in Chapter 3. There is also Neighbourhood Watch in which citizens of an area act as lookouts for each other. Variants include Shop Watch, Factory Watch and Boat Watch. Crimestoppers is a reporting mechanism under which

88

CRIMINAL JUSTICE

people can communicate information anonymously should they wish. Readers will be familiar with the long-running BBC TV programme Crimewatch. Crimes are reconstructed and CCTV footage and a ‘rogues gallery’ of photographs of wanted suspects is shown together with appeals for information: also now internet-based, this can be located at bbc.co.uk/programmes. Zero-tolerance Policing

This strategy relies on virtually automatic arrest, charge and prosecution and a resolve on the part of courts to deal firmly with offenders. By indicating that minor offences will not be tolerated, this sends out a signal that more serious ones will be tackled yet more vigorously. It is based on ideas of deterring crime and instilling respect. Opponents argue ‘successes’ can be attributed to other causes such as displacement of crime elsewhere, that it encourages disrespect and fails to create that deeper form of respect which is a prerequisite to changing offender’s attitudes. Zero-tolerance is associated with the work of the New York Police Department, USA under Commissioner William ‘Bill’ Bratton from the early-1990s onwards. In the UK, it was at one time linked to Cleveland Constabulary, in particular tactics used by Superintendent Ray Mallon (later directly elected mayor of Hartlepool). Armed Police

Police in the UK are not routinely armed although they may be for specific purposes and in high risk locations which may be patrolled by police with high velocity rifles. Often, authority to draw or use firearms will lie with an operational commander who may act remotely. With more routine matters, the move has been in the direction of ‘less lethal’ force mainly the Taser-gun.

5  The Police

89

Covert Policing

Covert or undercover policing is a generic term for work undertaken in secret: the infiltration of criminal networks, drug-rings, organized crime, subversive groups and the cultivation of informers, ‘witnesses’ who inform to the police within a special relationship defined by the Regulation of Investigatory Powers Act 2000 (RIPA). Technically, they are known as a ‘covert human intelligence source’ (‘chis’ or ‘covert source’). Grass is the slang term, and by extension ‘supergrass’ in relation to more serious matters. Informers have been subject to enhanced control and handling to prevent corruption; whether they are in prison or living (often under guard) in the community. In the extreme this may involve conferring public interest immunity (PII), e.g. if the potential value of the evidence outweighs justice-based consideration involved in prosecution or imprisonment. Where an informer has assisted the police this is communicated to the court in confidence by way of what is known as a ‘text’. Issues of undercover policing have been to the fore following revelations that at times police officers have formed extra-marital, sexual or misleading emotional relationships within groups they have infiltrated; and due to disclosures of politically-linked operations concerned with shoring up administrative regimes rather than monitoring subversion per se. In 2014, the home secretary announced an urgent judge-led inquiry into all such matters. Scanning Analysis Response Assessment (SARA)

SARA is a process for solving problems; as used by the police but that can be of use across the CJS to identify the best use of resources. It is in use within some UK police forces (and in the USA). It has four stages: scanning and spotting problems using, e.g. knowledge, basic data and electronic maps; analysis: using hunches and technology to look deep into the characteristics of a problem and its causes; response: devising a solution, working with the community whenever

90

CRIMINAL JUSTICE

possible; and assessment: looking back to see if the solution worked and noting any lessons to be learned. ‘Non-Police’ Matters’

This term is sometimes used to signify something beyond the remit of the police; concerning which they may seek not to become involved. The term may also be used in the courtroom to signify a prosecution stemming from another law enforcement agency.

Suggestions for Further Reading Introduction to Policing (2008), Rowe M, Aldershot: Sage Publications Ltd. Metropolitan Police Service: www.met.police.uk Police and Policing: An Introduction (2009), Villiers P, Sherfield on Loddon: Waterside Press. Principled Policing (1998), Alderson J, Sherfield on Loddon: Waterside Press The Politics of the Police (2010), Reiner R, Oxford: Oxford University Press ‘The Stephen Lawrence Inquiry Report by Sir Willam Macpherson’, www.gov. uk/government/publications/the-stephen-lawrence-inquiry

6  The Criminal Courts in Action

The decision whether someone is guilty of a criminal offence is made by a criminal court. Conviction can occur in one of two ways: • following a plea of not guilty and trial before a judge and jury or magistrates (below). They will hear the evidence as outlined in Chapter 3. At the end of the prosecution case, the defence can, if it wishes, submit that there is no case to answer (‘no prima facie case’) (and the court should, in any event, consider this of its own volition) when, if the court agrees, the accused will be discharged. If the case proceeds, the accused may give evidence and call witness. The court then decides whether the allegation is made out to the criminal standard of proof, beyond reasonable doubt. • where an accused pleads guilty. If the plea is unclear, equivocal, or otherwise unsound, e.g. seems to be being made mistakenly or for convenience, simply ‘to get matters over with’ or to take the blame for somebody else, the court should reject it and direct one of not guilty to be entered. Crown Court or Magistrates’ Court

With more serious, aka ‘indictable only offences’ such as murder, manslaughter, rape or where a firearm was used, trial and sentence takes place only in the Crown Court, ‘on indictment’. Hence also the term ‘indictment’ for the allegation and document setting it out. Either way offences

Certain other, usually less serious, offences can be tried ‘either way’, i.e. in the Crown Court or the magistrates’ court. The procedure for

92

CRIMINAL JUSTICE

deciding in which court is known as ‘mode of trial’. The magistrates’ court, using mode of trial guidelines, determines whether to send the case to the Crown Court or to retain it itself subject to its own lesser sentencing powers (six months imprisonment per offence or 12 in total for two or more offences: increases are on the statute book, but not yet implemented). By contrast, the Crown Court may be able to impose seven, ten or more years per offence. The defendant can indicate his or her plea to the court before the mode of trial decision is made so that the magistrates can weigh up the whole situation, or can elect to be tried by a jury anyway. In some cases magistrates can commit to the Crown Court for sentence after convicting the accused, but normally only on the basis of the offender’s previous record. Summary offences

The third regular category of offence is styled ‘summary only’. These cases, lesser by nature, can only be tried and the offender sentenced in the magistrates’ court. They tend to be dealt with by a fine, although some can end in a community sentence or imprisonment (Chapter 7). Preliminary Hearings

The trial process and the role of witnesses is outlined in Chapter 3. Pre-trial processes (sometimes aka pre-trial services (PTS)) concentrate on clarifying the issues in a case and avoiding delay. Certain cases may be ‘fast-tracked’, including by the defendant being given the opportunity to enter a timely guilty plea (which attracts a statutory sentencing discount (Chapter 7)). There may be a criminal directions hearing (CDH) at which a timetable is set, e.g. for disclosure of evidence or other intervening stages before the trial. Legal arguments may be rehearsed at this point and the need for research identified.

6  The Criminal Courts in Action

93

Appeals and Reviews

Anyone convicted by the Crown Court can appeal to the Court of Appeal (CA) against conviction or sentence (subject to cases where leave of court may be required). The CA can allow an appeal against conviction on the (sole) ground that it is unsafe. If the conviction stands, the CA may change the sentence to any that the Crown Court could have ordered. Both the CA and the High Court (below) normally sit at the Royal Courts of Justice in The Strand, London. In the case of an unduly lenient sentence or certain tariffs the attorney-general can refer the case to the CA (Chapters 3 and 7). Appeals from magistrates to the Crown Court

An appeal to the Crown Court against the decision of a magistrates’ court may be made against conviction, sentence or both (usually within 21 days but the Crown Court may extend this). The case is heard afresh by a judge sitting with magistrates (usually). If the conviction is upheld, the offender risks his or her sentence being increased (but within summary sentencing limits). The High Court (Queen’s Bench Division)

The Queen’s Bench Division hears appeals on matters of law from magistrates’ courts (and in rare instances from the Crown Court). This is known as appeal by case stated and is open to prosecution or defence. The magistrates set out in writing the facts they found to exist and say what legal principles they applied in coming to a decision. The High Court either upholds their interpretation of the law or, e.g. quashes the conviction and orders a re-hearing. Magistrates can refuse a frivolous application to state a case. Other more sparingly used ways to question decisions in the High Court are applications to prevent or compel magistrates to do something or to invalidate a decision (prohibition, mandamus and certiorari). Yet more unusual is a declaration of the law on a given point.

94

CRIMINAL JUSTICE

The Supreme Court of Justice

In 2009 the Supreme Court (SC) replaced the Judicial Committee of the House of Lords as the highest nationwide appellate court. It considers points of law of general public importance sitting at Westminster Guildhall. Its president is one of 12 Supreme Court justices. It also assumed the judicial role of the Privy Council (PC) in relation to those foreign states that still use the PC as a final court of appeal. European Court of Human Rights

Any breach of the European Convention on Human Rights can be challenged not just in UK courts but by taking the matter to the European Court of Human Rights (ECtHR) in Strasbourg, France, e.g. concerning a fair trial (see the Introduction). Normally, the convicted person should first use the domestic (i.e. ‘national’) appeal system. International Criminal Court

This court established by international treaty sits in The Hague in The Netherlands. It hears cases involving crimes against humanity such as genocide or war crimes, often beyond the jurisdiction of state courts. Cases That Do Not Go to Court A case may not go to court or complete its full course for many and various reasons, e.g.: • the offender may accept a police caution • there may be a fixed penalty or administrative fine • it may be dealt with informally: see especially Chapter 9. • the CPS has a continuing duty to review evidence (Chapter 3) in all cases and some will be discontinued as a result • an arrested person may be suffering from mental impairment or a similar disorder making prosecution something that is not in the public interest (below).

6  The Criminal Courts in Action

95

What Happens When Justice Breaks Down?

It is of great concern when justice falters: a wrongful conviction, unlawful arrest, improper surveillance, failure to bring a (true) perpetrator to justice, mistreatment of a victim, a death in custody (see Chapter 8 ) or judicial error. For centuries the system thought itself infallible. Cases such as the Birmingham Six (1974) and Guildford Four (1975) changed all that when convictions and long prison sentences were quashed by the Court of Appeal. There have since been numerous confirmed miscarriages of justice (with many such claims of such still pending) as well as associated concerns of the kind described in Chapter 5 in relation to policing. Until the 1990s, whether to refer such cases to the appeal court was for the home secretary and sparingly done. Following the Royal Commission on Criminal Justice of 1993, what is now the Criminal Cases Review Commission (CCRC) came into being. An independent body it considers cases from the Crown Court or magistrates’ courts (but rarely from the latter in practice). The applicant must have appealed the conviction unsuccessfully and normally fresh argument or evidence is needed. The CCRC also investigates and reports on any matter referred to it by the Court of Appeal itself and assists the Justice Secretary with whether to advise the crown to grant a pardon. Miscarriages of justice also led to PACE and its codes (Chapter 5). Mental Impairment

The question whether certain offenders are ‘mad or bad’ pervades debates on crime and punishment particularly when a particularly heinous offence is committed. Similarly, with ‘strange behaviour’, ‘personality disorder’, or being a ‘Walter Mitty’ (living a fantasy life). Perpetrators of the most serious offences who are mentally impaired are kept in special hospitals in conditions of high security under the supervision of psychiatrists and other medical personnel. This may happen without the courts being involved under mental health

96

CRIMINAL JUSTICE

laws, often after the offender is ‘sectioned’ by one or more medical practitioners. In other instances, mental impairment can affect an ongoing criminal case at any point, sometimes leading to diversion from the criminal process. Linked to both police stations and courts there are nowadays duty psychiatrist and referral schemes to provide a speedy response and where appropriate the admission of suspects or convicted offenders to hospital. In summary, court-based mental health-related disposals include: • hospital orders (when a Crown Court judge can make an order restricting a patient’s discharge from hospital) • guardianship orders under local authority care • detention during her majesty’s pleasure in a special hospital such as Broadmoor or Rampton: the usual outcome in the most serious cases when, subject to any underlying prison term against the person concerned, release will depend on the reports of medical personnel and decisions made by Mental Health Tribunals) (it is also possible for a prisoner to become a ‘patient’ administratively (and vice-versa where there is an underlying sentence of imprisonment)); and • conditions of treatment within a community sentence. Fitness to plead and insanity

An accused person may be altogether unfit to plead or in some instances insane and thus not responsible for his or her actions, a situation governed by what are known as the M’Naughten Rules. Diminished responsibility

This special defence applies only in cases of homicide and if successful reduces what would have been a murder conviction to one of manslaughter. The significance is that as a result the judge will have discretion as to sentence up to a maximum of life imprisonment (rather than having to use a mandatory life-sentence for murder). It

6  The Criminal Courts in Action

97

was introduced by the Homicide Act 1957 and is generally attributed to the execution of the last woman in to hang in the UK, Ruth Ellis. Personality disorder and psychopathy

Many people suffer from what is termed a personality disorder. They may or may not also be mentally-impaired in the full sense. They may be ‘strange if harmless’. There is perhaps no worse ‘evidence’ of guilt than that someone behaves ‘oddly’. However, personality disorder may be part of the reasons why someone offends (but, some people would argue, no better predictor of criminality than the discredited 19th-century theories of Lombroso concerning anthropological criminology, that ‘born criminals’ could be identified from their physical appearance). A formally diagnosed ‘serious and dangerous personality disorder’ (SDPD) is a recognised indicator of risk (see the Introduction) in relation to criminal justice decision-making. Psychopathy may be a reason why some people commit crimes. Again, the problem is that not all psychopaths behave in a criminal fashion. An informative introductory guide is the book by Herschel Prins noted at the end of this chapter, which explains the Hare Psychopathy Checklist used to spot psychopaths by scoring some traits such as coldness, deviousness and lack of empathy. Mental Health Act 2007

A central purpose of the 2007 Act was to introduce greater safeguards concerning the restriction of liberty of people suffering from mental illness; and extend victim’s rights. Proportionate to the need for treatment, a key purpose of all such legislation is to ensure that people with serious mental disorders that threaten their own or the public’s safety can be addressed, irrespective of their personal consent. In 2007, a dysfunctional ‘treatability’ test was abolished; and the Act broadened the range of practitioners authorised to carry out functions performed by (approved) social workers and responsible

98

CRIMINAL JUSTICE

medical officers. Other provisions conferred rights on patients and placed a duty on relevant authorities to make arrangements for help to be provided by independent mental health advocates. Leading charities in this field include Mind (mind.org.uk) and the Mental Health Foundation (mentalhealth.org.uk). Psychiatry and Psychology: A note

Before or during a trial or prison or community sentence, psychiatric assessment and an associated report by a qualified psychiatrist may be necessary. Similarly, assessments and reports by psychologists. Criminal psychology was popularised by the ITV fictional series Cracker based around the work of a forensic practitioner concerned, mainly, with offender profiling in the investigation of crime: Chapter 10. Psychology is an essential feature of probation work (Chapter 7), therapeutic regimes (Chapter 8 ) and identifying psychopaths (above).

Suggestions for Further Reading ‘Criminal Courts’: www.gov.uk/courts Criminal Psychology (2009), Pakes F and Pakes S, Cullompton: Willan Publishing. Just Law: The Changing Face of Justice and Why it Matters to Us All (1995), new edn., Kennedy H, London: Vintage Psychopaths by Herschel Prins (2013), Sherfield on Loddon, Waterside Press

7  Sentencing

The sentencing of offenders has frequently been described as an art rather than a science. There have been moves to dispel the idea that it involves an intuitive response in favour of structured approaches that require judges or magistrates to concentrate on factors making offences more or less deserving of a higher or lower sentence. Not least in this has been the work of the Sentencing Guidelines Council (SGC) and Magistrates’ Association (see ‘Sentencing Guidelines’ below). Punishment and Corrections

Corrections is a term (an ‘Americanism’ originally) used to describe sentence outcomes. It emphasises that a key aim of imposing a sentence is to ‘correct’ criminal behaviour. In England and Wales there is a Correctional Policy Framework within which sentencing policy is set; and a Correctional Services Accreditation Board charged with setting standards and sanctioning the content of offender behaviour programmes used in community sentences and in prison. Whether criminal behaviour can be ‘corrected’ and, if so how best to do this, is at the core of debates on the utility of punishment. Punitive-mindedness

Punitive-mindedness (or penal-mindedness) is reflected in many opinions on punishments, both today and historically: a belief that offenders must suffer or experience pain in return for their crimes. It is readily encouraged by the tabloid press, even if a counter view is that ‘penal populism does not work’ (Guardian editorial, 26 August 2008). Prison reform groups often point to what they consider to be archaic attitudes and a destructive focus on vengeance and

100

CRIMINAL JUSTICE

retribution. Rather, they stress a need for policies based on evidence of what actually works to prevent crime (see, e.g. in Chapter 10). At the other extreme ‘the rehabilitative ideal’ (below) is based on a belief that offenders can be saved from crime by, e.g. education, training, offending behaviour courses, encouragement and setting an example. They also point to ‘What Works’ or what doesn’t (Chapter 10). Statutory Purposes of Sentencing

The Criminal Justice Act 2003 contains the following statutory purposes of sentencing for courts in England and Wales (summarised): • the punishment of offenders • the reduction of crime (including by deterrence) • reform and rehabilitation of offenders (below) • protecting the public (mentioned in various chapters); and • offenders making reparation to their victims (Chapter 9). Things to think about

Some commentators consider that deterrence (above) can only ‘work’ if the offender’s calculations involve fear of punishment as opposed to worries about getting caught. They point to high re-offending rates despite increasingly long prison sentences and that even capital punishment failed to deter people in the past. A distinction must be drawn between general deterrence (which affects everyone) and individual deterrence (which acts on the mind of the individual, including when punished). Anecdotal accounts feature many people who, having ‘tasted imprisonment’, vowed never to risk it again. But long-term ‘desistance’ from crime (Chapter 10) arguably involves something deeper: a fundamental change in an offender’s attitude, values, aspirations and ways of thinking. Similarly, ideas about reform, rehabilitation, reintegration and resettlement are less than straightforward. Reform of the offender suffers from the problem that it cannot be imposed from outside

7 Sentencing

101

but requires active co-operation and a will, e.g. to deal with the kind of issues already mentioned above and avoid, temptation, crime opportunities and criminal associates. Reform is closely linked to the welfare-oriented ‘rehabilitative ideal’ which came into vogue after the Second World War but took a back seat in the 1980s in countries such as the USA due to a general rejection of ‘excuses’ for offending. Even in countries of a traditionally more tolerant frame of mind, it has suffered from mantra of the ‘tough on crime’ or ‘prison works’ type (see the Introduction). However, reform is a statutory purpose (above) and remains a fundamental basis of rehabilitation schemes concerned with alcohol or drug addiction among others. The Rehabilitation of Offenders Act 1974 also ensures that certain convictions are ignored, treated as ‘spent’, after a set period of time, so that the offender is not disadvantaged by them in most situations where a criminal record has to be disclosed. Rehabilitation is also a rationale of a youth rehabilitation order in the youth court (see other works). Linked to rehabilitation is the idea of ‘seamless’ re-integration (or re-assimilation) into the community with a view, e.g. to finding accommodation, employment and an ex-offender re-establishing himself or herself. Within a prison setting, resettlement may involve ‘working out’ (e.g. on day release) in readiness for release (Chapter 8 ). Repeat Offenders

It is one thing to hold tolerant views; another when it comes to those offenders who in some cases habitually return to crime (often despite their avowed intention to avoid the ‘revolving door’ of imprisonment); as if impervious to warnings and initial attempts by courts at leniency. Statute allows a sentence to be increased on the basis of a person’s record of offending (something outlawed in 1991 as smacking of ‘double punishment’ but reintroduced two years afterwards). There are various schemes, projects and task forces to target ‘persistent offenders’, who are responsible for a disproportionate amount of

102

CRIMINAL JUSTICE

crime. Similarly, to prioritise ‘prolific offenders’ or ‘spree offenders’, those who commit a run of crimes over a short period. Aggravation and Mitigation

These are the key to why some sentences are longer than others for the same offence. Certain offences do exist in a basic and aggravated form, the latter being intrinsically more serious and justifying greater punishment, such as aggravated burglary (e.g. using a weapon), and certain crimes are intrinsically more serious if accompanied by forms of hate or discrimination. More, generally, aggravating factors can make any offence more serious than another and liable to be punished more severely within the maximum powers of the court. Against this, mitigating factors relating directly to an offence will ordinarily cause a court to treat it as less serious of its kind, deserving leniency. The court weighs both types of factor to decide upon a fair, consistent and proportionate outcome. A plea in mitigation, asking the court to take account of factors that make the offence less serious or the special circumstances of the offender (aka ‘offender mitigation’) can be put forward by the offender or his or her lawyer. A large body of sentencing law covers what can and cannot be mitigation in given circumstances, and the extent to which it should have an effect — and also what is expressly not mitigation, e.g. that the defendant lost self-control only because he or she chose to become intoxicated. The term ‘mitigating circumstances’ is used specifically in relation to the penalty points/totting-up procedures involving disqualifications from driving under road traffic law. Mitigation cannot reduce a mandatory sentence such as one of life imprisonment for murder. Credit for a Guilty Plea

It is general principle of law and a statutory requirement that an offender be given credit for a timely guilty plea. Broadly speaking

7 Sentencing

103

courts work up or down from a ‘sentencing discount’ of one-third. The Main Sentences and Orders Fines

Magistrates can fine up to £5,000 per offence. In the magistrates’ court there are five levels of maximum fine (£100, £200, £1000, £2,500, £5,000). The Crown Court can impose unlimited fines but these have to be reasonable and proportionate to the offence. They are relatively unusual in the Crown Court for more serious offences except when companies are involved. A corporate body has no physical existence and cannot go to prison. Discharges

An absolute discharge marks the fact that an offence has been committed but places no obligations on the offender. It is thus suitable for technical or exceedingly minor offences. A conditional discharge means that the offender can be re-sentenced if he or she offends again within a period ordered by the court of up to two years. Community sentences: Paying back

Community sentences or community orders include a diverse range of options under which the offender is obliged to ‘pay back’ something to the community. Since 2003, probation orders no longer exist and old-style probation supervision has metamorphosed into a requirement within a ‘generic’ community sentence (below). Closely connected to this aspect of sentencing and at a point when it may not yet be clear whether imprisonment or a community sentence is appropriate are drug treatment and testing orders; and at the sentencing stage the court can make a drug rehabilitation order. The requirements of a generic community order are selected from some dozen possible requirements contained in a statutory list or

104

CRIMINAL JUSTICE

menu. Typical requirements include: unpaid work (aka community service), attending a course (e.g. alcohol awareness, drink-driving or anger management), medical treatment, residence and reporting to a probation officer. The ‘restriction of liberty’ involved in this must be commensurate with the seriousness of the offence or offences concerned and must be suitable for the offender. An offender can be imprisoned if he or she refuses consent to a requirement of a community sentence which requires consent (few now do) or on breach of a community sentence, or an order for a pre-sentence drug test. Changes have seen ‘rebalancing’ to counter a drift towards an escalation of requirements, aka ‘up-tariffing’. Imprisonment

A sentence of imprisonment can only be used where the individual offence ‘carries’ imprisonment, i.e. whether: • a discretionary sentence of imprisonment where the use and length of sentence is at the discretion of the court subject to the maximum fixed by the law for that offence • a mandatory sentence such as life imprisonment for murder or where imprisonment or a minimum sentence is fixed by law, e.g. under the law known as ‘two strikes’ where imprisonment becomes obligatory for a second offence • failure to consent to or comply with a community sentence • a suspended sentence when the offender will only serve time in prison if he or she commits further offences and imprisonment is then activated by a court as a result. The court must first be satisfied that imprisonment is appropriate; then go on to decide that it is correct to suspend its operation. If it suspends the sentence, the court must also consider imposing a fine and compensation. If the offender commits an offence within the operational period of the suspended sentence, that sentence then falls to be activated, i.e. put into effect. Since

7 Sentencing

105

2003, conditions can be attached to a suspended sentence and breach of these can also lead to punishment. Offenders below 18 years of age cannot be sentenced to imprisonment, but to detention in a young offender institution (YOI) (which cannot be suspended); and neither can prison for people under 21. Prisons are the sentence of last resort in most civilised countries. The Criminal Justice Act 2003 contains a ‘so serious’ threshold test for discretionary sentences of imprisonment. Section 152(2) of that Act provides that a court must not pass a custodial sentence unless it is of the opinion that the offence (or the combination of the offence and one or more offences associated with it) was so serious that neither a fine alone nor a community sentence can be justified. The length of a term of imprisonment is a separate consideration to whether it should be used at all. Discretionary sentences ‘must be for the shortest term … that … is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it’. If the offender is not legally represented, legal aid will be offered to him or her before sentence is passed and a pre-sentence report (PSR) should normally be obtained (see further under ‘Role of the Probation Service’, below). Where there are several offences, separate terms of imprisonment can be made to run concurrently (simultaneously) or consecutively (one after the other). Life-sentences

Murder (and some other serious offences where the court thinks that there is a significant risk to the public of serious harm from further specified offences) attracts a mandatory sentence of life imprisonment. These categories of prisoners are known as ‘mandatory lifers’ and ‘discretionary lifers’. With both the court sets a tariff stating the number of years that must elapse before the offender is eligible to apply for parole (Chapter 8 ). The term ‘natural lifer’ is reserved for

106

CRIMINAL JUSTICE

someone given a ‘whole life’ tariff of which there are under 50 such prisoners in England and Wales (see further in Chapter 8 ). Sentences for public protection

Although such sentences are being phased out and replaced by more flexible provisions, there are a large number of prisoners who have been given an indeterminate sentence for public protection (ISPP) for offences of violence or sexual offences (see other works). Detention at Her Majesty’s pleasure

Detention at Her Majesty’s pleasure (aka life detention) can (in some cases must) be ordered by the Crown Court instead of a mandatory or discretionary sentence of life imprisonment: against a young offender, or someone unfit to plead or insane (Chapter 6 ). Ancillary and Other Orders

The powers of the criminal courts also include those in respect of: Compensation

Magistrates and the Crown Court can order compensation for loss, injury or damage suffered by a victim. It must come before punishment by a fine; and is an automatic consideration in other cases. It may be additional to any other method of dealing with an offender, i.e. a true ancillary order, or stand alone as the sentence in its own right. Reasons for not making an order must be given by a magistrates’ court which rejects an award when it could have made one. Quite apart from court powers, someone who is a victim of violence may be eligible to receive publicly funded compensation from the Criminal Injuries Compensation Authority (CICA), provided, e.g. he or she did not bring the injury on himself or herself, failed to co-operate with investigators, or was involved in other conduct making an award (or full award) inappropriate. If no award is made,

7 Sentencing

107

the victim can appeal. The CICA takes account of any award of compensation in a criminal or civil case for the same matter. In 2012, it was announced that the threshold below which payments would be made is to be raised, excluding a greater number of small claims: see further justice.gov. uk/victims-and-witnesses/cica Costs

The costs of a criminal case can be ordered to be paid by either party according to the outcome and circumstances of the case. If a defendant is acquitted, or a case discontinued, he or she is normally entitled to costs from public funds; or they can be ordered against the CPS (or other) prosecutor. Conversely, after conviction, the accused might expect to pay all or part of the prosecution costs, including of civilian witnesses. There has been talk in political circles of offenders being made to pay the true costs of holding their trial. Courts can order legal representatives to pay ‘wasted costs’, i.e. wasted by them. Deferment of sentence

Where appropriate, sentence can be deferred for up to six months to see how the offender conducts himself or herself in the meantime, especially with regard to reparation and keeping out of trouble Criminal anti-social behaviour (CRASBO) and similar orders

The courts have power whether on application or when imposing sentence to make a number of preventative orders the effect of which is that the offender will be liable to be sentenced or punished for failure to comply with their terms. They include the CRASBO, a (civil) binding-over order to keep the peace and football and other ‘banning orders’ (see specialist works).

108

CRIMINAL JUSTICE

Sentencing Guidelines

Remarkably perhaps, formal sentencing guidelines are a relatively modern innovation other than those of the Magistrates Association (which has published them to members for cases dealt with summarily since the 1970s) and local benches. Since 2003 there is a statutory Sentencing Council for England and Wales (SGC) to ‘promote greater consistency … whilst maintaining the independence of the judiciary’. Apart from producing guidelines on sentencing for the judiciary, it aims ‘to increase public understanding of sentencing’. Fixed Penalties

Minor misdeeds may be dealt with using fixed penalties issued by the police, traffic wardens or other authorised officials and notified to the offender in a fixed penalty notice. Some are styled ‘fixed penalty notice for disorder’ (FPND). The person concerned can appeal to a magistrates’ court when the notice is then in effect replaced by prosecution and the person concerned risks a court conviction. The Role of the Probation Service

Probation work is in 2014 being divided between a national service within the Ministry of Justice, responsible for its more sensitive aspects including the supervision of more dangerous offenders (about one-third of the total), and a number of private sector companies or partnerships commissioned by the government (and to be paid partly by their results in reducing re-offending). As a transitional arrangement, the work not being retained in the public sector is planned to pass (temporarily at least) to a number of ‘Community Rehabilitation Companies’ (CRCs) in preparation for its full transfer to the private sector in 2015. In this way the service will offer community programmes to judges and magistrates who may be minded to make community sentences (above), or similarly to support licence conditions for offenders released from prison, who can be made subject

7 Sentencing

109

to comparable requirements (Chapter 8 ). Probation resources also include hostels for offenders with a residence requirement in their sentence or licence, and day centres. Considerable controversy has arisen over this move to such a high level of private sector involvement, not least because work with higher risk offenders (who generally present more difficult problems and a correspondingly greater chance that supervision may fail) is being retained by the public sector and associated responsibilities will be discharged by public sector probation staff. Reportedly, there have been a high number of resignations of probation officers who see this (together with moves in the direction of ‘policing’ offenders) as a move away from the public service ethos and welfare-oriented origins and traditions of probation work. Those intriguing origins lie in the work of the Church of England Temperance Society that appointed ‘missionaries’ to the London Police Courts in the 19th-century. Those courts began releasing offenders who would have gone to prison on condition that they kept in touch with a missionary and accepted his or her guidance. This evolved into the probation order and the service’s former statutory function of ‘advising, assisting and befriending’ offenders in the Probation Act 1907. This welfare-based function has shifted over the years, though not without considerable controversy, and the service is now regarded by government as a crime prevention agency. Central to probation work is the pre-sentence report (PSR) to courts compiled by a probation officer. Typically a PSR sets out aspects of the person’s life and concludes by indicating a suitable sentence. Since 1988 probation has been subject to a series of reforms to its structure and organization including those flowing from the Carter Report of 2003 (which among other things first opened up the work to competition with the private and voluntary sectors) and ultimately led to the intended developments already described above.

110

CRIMINAL JUSTICE

Hopefully, some positive or less contentious changes such as ‘end-to-end’ sentencing, where a named offender manager supervises an offender in custody and then on release, will be retained; as well as working alongside prison officers in prisons to carry out risk assessments, arrange courses (if available) and prepare offenders for reintegration and resettlement into their communities. Similarly, that evidence-based research concerning what works to deal with the causes of crime and reduce offending will not be lost sight of (Chapter 10) and that valuable existing work with victims (Chapter 9), particularly sexual and violent offenders, will both continue and expand to a greater range of those impacted by crime.

Suggestions for Further Reading ‘Forty Years of Community Service’, Harding J, Guardian, 9 January 2014 (Society Section). http://www.theguardian.com/society/2013/jan/08/fortyyears-community-service Magistrates’ Association: www.magistrates-association.org.uk ‘Revolving Door Justice System that Just Turns out Career Criminals’, Evening Standard, Cohen D, 14 March 2014. http://www.standard.co.uk/ news/london/revolving-door-justice-system-that-just-turns-out-careercriminals-9192537.html Sentencing and Criminal Justice (2010), edn.5. Ashworth, A, Cambridge: Cambridge University Press Sentencing Council: http://sentencingcouncil.judiciary.gov.uk (and for an explanation of life sentences, see: http://sentencingcouncil.judiciary.gov.uk/ sentencing/Life-sentences.htm)

8  Prisons and Imprisonment

However modern, the prison remains a symbol of shame and retribution. Except in countries still using capital punishment, it is the most severe sanction of a court. But prison regimes vary greatly, from the relatively liberal ones of Scandinavian countries to those of the high security or ‘supermax’ prisons of the USA, gulags of the former Soviet Union, or dungeon-like torture chambers of medieval times. Even today in England and Wales in a relatively enlightened age, prison regimes and degrees of restriction of liberty vary considerably. Prisons of Former Days

Until the mid-18th-century, English prisons were used for people awaiting trial by travelling judges, the death penalty, transportation to the colonies, or to enforce debts and civil obligations. They were often commercial undertakings, in castles or inns, ‘secure lodgings’ where prisoner’s paid for their keep or release. Some were operated as an adjunct to the power of sheriffs or bailiffs, including before the writ of habeus corpus prevented arbitrary imprisonment. The emergence of public prisons

Named after the The Bridewell in London, the first truly public prisons were local bridewells (a term still sometimes used to describe police station holding cells). Additionally and alongside the workhouse for the impoverished, houses of correction were developed for petty offenders, vagrants and other ‘miscreants’. These were administered by local magistrates or boards of guardians. The Victorian era saw a vast prison building programme, together with much experimentation, e.g. with silent or separate regimes where prisoners were

112

CRIMINAL JUSTICE

not allowed to speak and shielded from the view of other prisoners by hoods, and cubicles when attending chapel. According to Oscar Wilde, imprisoned for two years, in his The Ballad of Reading Gaol: I know not whether Laws be right Or whether Laws be wrong

All that we know who lie in gaol Is that the wall is strong

And that each day is like a year A year whose days are long.

Her Majesty’s Prison Service

HMPS has been regulated by legislation since 1877. It is nowadays one limb of the National Offender Management Service (NOMS) within the Ministry of Justice (Chapter 3). It operates under the Prisons Act 1952 and Prison Rules 1999 (as amended and updated); with comparable provisions for young offenders. It manages public sector prisons and contracts out for the construction, development and management of ‘private prisons’. A Prisons Board acts as a senior management team with several non-executive directors from outside the service. Its aims appear in its mission statement, i.e. Her Majesty’s Prison Service serves the public by keeping in custody those committed by the courts. Our duty is to look after them with humanity and help them lead law abiding and useful lives in custody and after release.

The Prison Estate

This is the term applied to the entirety of prison buildings and premises, including those used as offices, depots or warehouses. The prison estate includes some 150 prison establishments ranging from large metropolitan prisons such as Wandsworth Prison and Pentonville

8  Prisons and Imprisonment

113

Prison in London to open prisons such as those at Leyhill in Gloucestershire (from where is published Prison Service Journal and Prison Service News) and one public sector therapeutic prison (below). The person in charge at each such prison is the ‘No.1 Governor’. Private Sector

In addition to prisons managed by HMPS there are a number of privately managed prisons. The private sector also plays a key part in related services, notably escorting prisoners to court from prison and vice-versa, electronic monitoring (whilst prisoners are subject to home detention curfew or other forms of early or temporary release) and the provision of items for prisoners’ ‘canteen’ (prison shop: now often using a catalogue ordering system). In privately managed prisons, the term Governor is replaced with Director and the ongoing link with the MOJ is via an HMPS controller to whom the director accounts. Purposes of Imprisonment

Attitudes to the use of imprisonment vary considerably, e.g. from: • ‘lock ‘em up and throw away the key’; to • prison should be a last resort; to • community sentences should be used whenever possible; to • only use imprisonment for truly dangerous offenders. Despite its neutral position, HMPS has a number of internal measures that seek to present imprisonment as a potentially positive experience, e.g. it measures ‘purposeful activity’ and ‘time out of cell’. For longer-term prisoners (usually those serving four years upwards) it uses sentence plans in an attempt to give substance and point to an offender’s time inside.

114

CRIMINAL JUSTICE

Prison Regimes and Prisoner Categories

Initially a prisoner is sent to a local or allocation prison, before HMPS decides where he or she will serve his or her sentence or the first stage of it. This will depend mainly on the prisoner’s category (below) and, certainly with longer sentences, what courses, training, employment or treatment it is felt he or she needs to complete before release. Prisoner categories are as follows: • Category A: Prisoners whose escape would be highly dangerous to the public or national security, e.g. murderers, rapists, robbers, terrorists; betrayers of official secrets • Category B: Prisoners not requiring maximum security, but for whom escape needs to be made very difficult • Category C: Prisoners who cannot be trusted in open conditions but are not seen as an escape risk • Category D: Prisoners who can be reasonably trusted not to try to escape and who may be held in an open prison. Remand Prisoners

There are two main classes of prisoner: convicted and unconvicted. Those awaiting trial are described as ‘remand prisoners’, i.e. remanded by a court. Due to the presumption of innocence they enjoy greater privileges. Once convicted of an offence this changes, even though they remain on remand from the court pending sentence. If given imprisonment their status changes to ‘convicted and sentenced’. Incentives and Earned Privileges Scheme (IEPS)

The IEPS determines which prisoners enjoy privileges such as extra visits from outside, work to earn modest prison wages, in-cell TV and so on. There are three levels: basic, standard and enhanced. Prisoners start on the first of these and gain or lose privilege status based on their progress and conduct in prison. This also depends on whether a prisoner has any adjudications against him or her under the prison

8  Prisons and Imprisonment

115

disciplinary system so that privileges have been lost or reduced. There have been government moves against progression up the incentive scheme just for avoiding trouble rather than positive behaviour. Requests and Complaints

The goodwill of staff apart, applications are needed for almost everything a prisoner wishes to do in prison. This is known as ‘requests and complaints’ (R&C), for which the prisoner fills out a form and receives a reply about 14 days later; following which they can appeal to HMPS headquarters. If the complaint is on the grounds of race the incident will also be reported to the prison’s race relations liaison officer (RRLO) and Race Relations Management Team that should exist in every prison; as well as any diversity representative. Segregation

Vulnerable prisoners can apply to go on ‘Rule 43’ (technically now Rule 45 but still so called). They will then be segregated from other prisoners, often in a special wing. This status is requested by, e.g. ex-police or ex-prison officers sentenced to imprisonment and sex offenders, who may be subject to attack on ‘normal’ location. This should be distinguished from segregation from other prisoners, usually in ‘the block’, for misbehaviour whilst in prison, when the prisoner will be kept in isolation, possibly solitary confinement or in extreme cases a padded or strip-cell with the use of restraints and ‘cardboard furniture’ to prevent self-harming. Whilst in segregation (sometimes aka ‘cellular confinement’) the prisoner may see a governor, doctor or a member of the Independent Monitoring Board (IMB) (below) to ensure that he or she is healthy and not being mistreated but otherwise has restricted contact with others, save, e.g. for the delivery of meals, cleaning, showers, medical attention and short periods out of cell for exercise.

116

CRIMINAL JUSTICE

Prisoners Protesting Their Innocence

Legally speaking, there are ‘no innocent men or women in prison’ since all will have been lawfully convicted and sentenced by the courts. HMPS functions on this premise with those protesting their innocence tending to be viewed as being ‘in denial’. This said, the extent of miscarriages of justice (see Chapter 6 ) is sufficiently strong for there to be some better understanding of the possibilities even within the constraints of running a prison. One problem of ‘denial’ is that a prisoner cannot progress with those parts of a sentence which involve acceptance of responsibility (e.g. some offending behaviour courses) or experience shame, remorse or other indicators that he or she is no longer at-risk of re-offending. It is thus not unknown for prisoners to admit to things for convenience, however galling. The Offender Assessment System (OASys)

OASys is a high-tech offender assessment tool, developed by NOMs. This is what offender managers and others use to predict an offender’s risk to the public. It looks at the prisoner’s life in detail from an early age, including his or her criminal history, education and employment. OASys tools predict whether the prisoner poses a low, medium or high risk to the public, thereby allowing HMPS and others to judge what offending behaviour work is needed to attempt to lower this. Personal Officer Scheme

Most prisons operate a personal officer scheme under which a designated prison officer will be an individual’s main point of reference, e.g. if wishing to attend a course, and he or she will also compile regular reports on the prisoner. He or she will also normally liaise with the Offender Management Unit (OMU) of the prison and along with probation officers, psychologists or others submitting reports be crucial to release on licence or applications to the Parole Board, etc.

8  Prisons and Imprisonment

117

Literacy, Numeracy and Basic Education

Prison reformers regularly point to a correlation between illiteracy, innumeracy and offending (see also Chapter 10). Prisoners may or may not have access to educational courses and the concentration has been on basic education subject to other regime demands on time and resources. The objective is to allow prisoners to gain skills and if possible qualifications, such as NVQs, to help them find employment. The majority of men offenders and almost three-quarters of women offenders have no qualifications; approaching 60 per cent have few or no literacy skills a greater number lack numeracy skills: at best attaining those of an eleven-year-old (Prison Reform Trust: Statistics appear at www.prisonreformtrust.org.uk from time to time). Listeners

These are prisoners trained by the Samaritans to provide confidential and sensitive non-judgemental support to other prisoners, particularly newcomers. This can be a lifeline for some. The Life Sentence Regime

‘Lifer’ is shorthand for someone sentenced to life imprisonment. The number of prisoners serving such sentences (or other indeterminate sentences) increased from around 2,500 in the 1990s to over 10,000 by the late-2000s. Unless they are natural lifers (below), all are subject to a tariff (the time they must serve before they can be considered for release: Chapter 7). Downgrading of their security category will usually occur until they reach an open prison. Typically, they complete a range of courses and education. On release, they remain on licence for the rest of their natural life and can be recalled to prison if, e.g. they are seen to be at risk of offending. A number of ‘whole life’ prisoners (aka ‘natural lifers’) have been trying to challenge the legality of this tariff in both the UK courts and the European Court of Human Rights, in the hope that pressure

118

CRIMINAL JUSTICE

will be put on the UK justice system to scrap whole life tariffs. Having reached the Court of Appeal in 2014 where the whole life tariff was held to be lawful notwithstanding a European ruling that would seem to be to the contrary, the momentum is still with the UK government due to the long-stop possibility of compassionate release. Release from Prison

Release is the process whereby prisoners are discharged from prison at the end of their sentences. There are also arrangements for temporarily release, day release, compassionate release, but only usually after the prisoner has served a significant part of his or her sentence. The Criminal Justice Act 2003 revised the statutory release provisions, which vary according to the type of sentence. Life sentences apart (above) most sentences now involve: a custodial part, i.e. served in prison; followed by a part served in the community under supervision, unconditionally (as with sentences below 12 months although supervision is intended to be introduced for all prisoners once the new arrangements for probation described in Chapter 7 are in place), or on other forms of release licence or parole. Where release involves the Parole Board (longer sentences), it will consider risk-assessments and information about the offender’s progress including courses attended. There are National Standards for post-release supervision by the National Probation Service (or under current, if contentious, proposals the private sector) seeking to protect the public; prevent re-offending; and ensure successful reintegration and resettlement. Home detention curfew

Prisoners over 21-years-of age serving up to four years may be released on home detention curfew, including under arrangements for electronic monitoring. Such prisoners remain subject to prison recall. In 2007, under an ‘end of custody’ scheme in response to prison overcrowding many short-term prisoners were released 18 days early.

8  Prisons and Imprisonment

119

The Parole Board

The system for the early release of longer-term prisoners and lifers operates under the auspices of the Parole Board; involving parole licences and recall to prison for breach of such a licence. The board is an independent, non-executive, non-departmental public body sponsored by the Ministry of Justice. It is distanced from the Justice Secretary (Chapter 3), including due to rulings of the European Court of Human Rights concerning fairness and independence. MOJ ‘Release Directions’ now act as guidelines rather than instructions. The board comprises a chair and some 80 members (a few full-time); including existing or former judges, psychiatrists, probation officers and criminologists; who meet in panels of three or four to consider applications for parole once a prisoner has reached his or her parole eligibility date (PED). The board publishes annual reports. Therapeutic Regimes

There are a number of prisons which have wings, landings or parts set aside as therapeutic communities (TCs). Prisoners spend their time challenging both their own behaviour and that of their peers; and looking to change thought patterns which caused them to offend. Each participant is held to account by other members of his or her community. This may involve looking searchingly into criminality, sexuality and deeply personal matters. Grendon Prison and Dovegate Prison

Grendon is a prison-TC in Buckinghamshire with a separate community on each of four wings but essentially a ‘whole prison’ TC. It is world-renown since opening in the 1960s as the first such in Britain. Prisoners apply to go there. Normally, they are not released from Grendon (a Category-B prison) but return to ‘normal location’ first to serve out their sentences. Such research as exists shows that re-offending is less likely after a spell in a TC. Since 2003, a TC has

120

CRIMINAL JUSTICE

been established at Dovegate Prison in Staffordshire under private sector management. It occupies one half of a prison and differs from Grendon in the methods it uses and its regime Adjudications

Breaches of the prison rules may result in a charge being brought against a prisoner and an ‘adjudication’. Cases are heard by a visiting district judge or a prison governor depending on whether the matter is a routine infringement or a more serious matter involving days being added to a sentence. Governors may reduce entitlements under the Incentives and Earned Privileges Scheme (above) which will also involve a negative entry in the prisoners record. In more serious cases, the visiting judge hears the evidence, listens to the prisoner’s defence, takes account of whether he or she has pleaded guilty or not guilty, and considers any aggravating or mitigating circumstances. He or she then decides if the prisoner is guilty and if so passes sentence: added days (i.e. days added to a sentence), a fine, time in segregation or loss of privileges. Independent Monitoring Boards

Independent Monitoring Boards (IMBs) are attached to each prison or group of prisons as well as young offender institutions and immigration detention centres. A prisoner can request to speak to a member of his local IMB. IMB members are independent of HMPS or government and report directly to the justice secretary (without being under his or her control). IMBs are made up of members of the public, some of whom may also be magistrates (Chapter 3). Prisons and Probation Ombudsman

The Prisons and Probation Ombudsman can assist where a prisoner is not satisfied, after going through the internal HMPS complaints procedure. A prisoner must write to the ombudsman within a month

8  Prisons and Imprisonment

121

of receiving a final internal response regarding his or her complaint, together with any Independent IMB (above) input. Members of Parliament

A prisoner needing help or advice can write to his or her Member of Parliament or the one for the constituency in which the prison is situated. Alternatively, a prisoner’s family can do so. Deaths in Custody

Deaths in custody is a generic head under which deaths in prison, police or other official custody or detention are discussed; whether from natural causes to suicide, accident, assault or ill-treatment. Some 100 deaths a year are involved; the annual total acting as a barometer of improvements or failings. Many cases have become rallying points for action, including those of: Joy Gardner (enforced deportation) (d.1993), Roger Sylvester (prone restraint at a psychiatric hospital) (d.1999); Christopher Edwards (killed in 1994 by his cell-mate whilst on remand to prison: the European Court of Human Rights holding that the UK authorities were responsible for several shortcomings); Zahid Mubarek (d.1997) re whom a public inquiry made over 150 recommendations for improvements following his being killed by a cell-mate at Feltham Young Offender Institution the day before that scheduled for Mubarek’s release); and Adam Rickwood (d.2004 aged 14) the youngest person to die in custody in the UK, at Hassockfield Secure Training Centre, County Durham (operated by the private sector), a suicide following restraint. Further information about this topic is available from the leading organization INQUEST. All deaths in prison automatically lead to investigation by the Prisons and Probation Ombudsman (above); police-related deaths whether in a police station, by shooting, being Tasered or during an arrest are referred to the Independent Police Complaints Commission (IPCC) (Chapter 5).

122

CRIMINAL JUSTICE

Prison Reform

As noted in the Introduction, various organizations exist to protect or enhance prisoners’ rights when day-to-day issues tend to concern the minutiae of prison life as much as major issues such as the nature and impact of mandatory sentences or the rising prison population, up over 100 per cent in the UK in the past 20 years. They include the Howard League for Penal Reform and Prison Reform Trust.

Suggestions for Further Reading Deaths in Custody — for general information see www.inquest.org.uk Fifty Year Stretch: Prisons and Imprisonment 1980-2030 (2010), Shaw Stephen, Sherfield on Loddon: Waterside Press Grendon Tales: Stories from a Therapeutic Community (2001), Smartt U, Sherfield on Loddon: Waterside Press Inside Time (and The Inside Information Book): www.insidetime.org Out of the Frying Pan (2009), Chapman J, Chipmunkapublishing (www.­ chipmunkapublishing.co.uk) Sentencing and Punishment (2012), edn.3, Easton S and Piper C, Oxford: Oxford University Press The Ballad of Reading Goal (1897 approx), Wilde O (available at www.poets.org/ viewmedia.php/prmMID/19410) The Complete Parkhurst Tales (2006), Parker N, London: John Blake Publishing Ltd. The Little Book of Prison (2012), Owens F, Sherfield on Loddon: Waterside Press The Penal System (2007) edn.4, Cavadino M and Dignan J, Aldershot: Sage Publications Ltd.

9  Victims and Restorative Justice

Victims of crime who have suffered loss, injury or damage can, as outlined in Chapter 7, be awarded compensation by criminal courts ancillary to sentence once someone is convicted of a crime. They can also normally sue in the civil courts where the standard of proof is lower but naturally cannot recover the same amount twice. The role of the Criminal Compensation Authority (CICA) is also noted in that chapter. But in general there is no state-funded compensation and victims receiving awards from the courts may have to wait a considerable time before these are paid by the offender, if ever. Another further victim-related issue is that victims are not party to criminal cases, except in private prosecutions, which are rare (Chapter 3). The Victim’s Movement

Practitioners may find the courtroom and other formal settings ‘everyday’, but for the ordinary citizen it can be intimidating. Victims’ experiences may range through anxiety to dread. They may suffer ‘dissociation’ from a crime scene, trauma and long-term mistrust of other people. Hence the victim’s movement to, e.g. • advise, support and befriend victims of crime • ensure victims are best served by criminal processes • try to make sure that victim’s views are made known • redress the imbalance whereby legal processes tend to focus on the offender and his or her rights; and • help in those cases which do not end-up in court. This movement is extensive in the UK and abroad, often through volunteers and organizations such as those mentioned later.

124

CRIMINAL JUSTICE

Reparation

Reparation is different to compensation although it can be used by a court, e.g. as part of a community sentence or as an objective of deferment of sentence (both Chapter 7) and is associated with ‘making amends’. This may sometimes begin voluntarily before any criminal proceedings and indicate true remorse, a ‘mending of ways’ by trying to put things right. It is in fact a statutory purpose of sentencing if seemingly much underplayed. Reparation orders in the youth court help juveniles to realise the consequences of their offending and take responsibility, e.g. by removing graffiti. Reparation is also strongly associated with restorative justice (below). Reparation schemes

There are various reparation schemes whereby offenders are encouraged to repair the harm they have caused in a controlled way. Secondary Victims

This informal term is sometimes applied to those affected by a crime at one remove from the victim (or offender), e.g. the family of: • a victim, especially a victim of murder or violence • an offender, e.g. losing a breadwinner by imprisonment; or • others in a close relationship with victims or offenders. Victim Liaison Officers

The police use victim liaison officers (VLOs). These are police officers (usually) who acts as go-betweens connecting victims with an evolving investigation or prosecution. Apart from moral support they aim to keep victims informed about what stage a case has reached. Similarly, where an offender is released from prison or moves address there are schemes to keep victims informed, albeit fragmentary in practice and sometimes carrying upsetting reminders.

9  Victims and Restorative Justice

125

Victim Personal Statement

The victim personal statement (VPS) (aka victim impact statement (VIS)) is a modern innovation. It is made by a victim (possibly in some cases by secondary victims) to inform the judge or magistrates when sentencing. It describes how the offence affected him, her or them, e.g. the anger, anxiety and stress it caused. The aim is to make sure the victim is not excluded rather than influence the sentence. Some Government-led Initiatives

The Victims Charter dates from 1990 and is a government-led statement of service standards which tells victims what they can expect from the CJS, what will happen and how to complain. There is also a NOMs Victim Helpline: gov.uk/get-support-as-a-victim-of-crime The Victims Advisory Panel exists for victims of crime and their families to have a say ‘in the reform of the CJS’. It is an advisory non-departmental public body of the Ministry of Justice. The role of the victims’ commissioner is to promote the interests of victims and witnesses, encourage good practice in their treatment, and regularly review the Code of Practice for Victims which sets out the services victims can expect to receive. By law, the commissioner is not allowed to intervene in individual cases but endeavours to provide direction to victims about where to get the best advice and support. A victim’s surcharge is added to all court fines imposed in order to fund improved services for victims and compensation schemes. Victim Support and Other Help

Central to the victims’ movement is Victim Support (VS): a key example of the work of the voluntary sector. An independent charity it provides free, confidential support to help victims deal with crime-related experiences, whether or not reported to the police. Citizens can also use Victim Supportline and anyone can volunteer to assist VS with practical help and support or make a donation. VS

126

CRIMINAL JUSTICE

has a full-time staff and operates nationwide. It is in contact with some 1.5 million victims and witnesses a year: see, further, www.­ victimsupport.org.uk. Among other bodies working in this field are the Restorative Justice Consortium (see later) and a number of ‘mothers’ organizations such as Mothers Against Murder and Aggression (or against Gangs, Drink Driving, Guns, Gangs, Violence, etc.). Restorative Justice (RJ)

RJ is a form of justice that focuses on repairing harm rather than legal or procedural technicalities or outcomes known to enhance conflict, distress, pain, etc. It contrasts markedly with the adversarial system described in the Introduction. It does so by marking the seriousness of an offence, but combines this with efforts to repair harm, restore good relations and secure re-acceptance into the community. The antithesis of retribution, RJ concentrates on placing the victim and community, so far as possible, in the situation that existed before the offence took place (aka status quo ante) by, e.g.: • avoiding further conflict, particularly between the parties • limiting the corrosive effects of formal CJS processes; and • restoring harmony in the community. RJ can be traced to the 12th-century at least; and has been linked to sentencing circles, especially those of New Zealand, Australia and the Middle-East. It sees crime as a broken link between offender, victim and community, best mended ‘in the round’ by building on an acknowledgement of wrongdoing, demonstration of remorse and re-acceptance of the offender into the fold. This may be accompanied by shaming, apology and reparation. It should be noted, however, that theories of RJ vary: from those that see it as a mere adjunct to standard CJS processes to those urging wholesale replacement of the existing system. Virtually all RJ’s proponents acknowledge the need for dangerous offenders to be ‘contained’ somehow.

9  Victims and Restorative Justice

127

One suggested cause of crime is social exclusion (Chapter 10). Conventional punishments can be exclusionary in nature (particularly penal custody), whereas RJ is inclusionary offering crime prevention as an integral part of its deployment. It started to permeate mainstream thinking in the UK from the mid-1990s; becoming a theme of official pronouncements, initially concerning juveniles. The Restorative Justice Consortium, a nationwide collective of RJ-based organizations, describes RJ as: processes [that] give victims the chance to tell offenders the real impact of their crime, to get answers … and to receive an apology

...[It] holds offenders to account … and helps victims to get on with their lives.

Restorative processes have been used in other contexts, e.g. schools, workplaces, international relations and trade union negotiations. Mediation

Similar to RJ but with less defined parameters or pre-disposed outcomes, mediation has a different focus but is also concerned with reducing conflict. It is a process whereby an independent person seeks to resolve issues between ‘warring’ parties. It can take place in any setting and involves negotiation, arbitration, discussion and bringing home to people the sometimes false nature of their standpoint. It is usually carried out by an impartial trained intermediary. Victim-offender mediation

Mediation is best-known in the criminal justice field in relation to victim-offender mediation, often linked to aspects of restorative justice (above). Many schemes exist, especially in local areas, to deal with what can be a sensitive and sometimes delicate area of criminal policy.

128

CRIMINAL JUSTICE

Victimless Crimes and Victims Who Wish to Keep Quiet

Some offences are spoken of as victimless, meaning that they do not have an identifiable individual victim who suffers harm. By the same token, certain offenders may see this a some kind of justification or excuse for ‘soft crimes in which no-one got hurt’. Examples include benefit or tax fraud, insurance scams, personal drug-taking, ‘harmless’ road traffic or other regulatory offences. But by definition, all crime is a crime against the state: and everyone suffers indirectly. Finally there is the anomaly of those ‘compromised’ victims who do not wish to complain, such as banks and businesses fearing loss of their own reputation when employees commit white collar crime (Chapter 1), or who are concerned that any criminal investigation may lead to their own downfall for whatever reason. Various strategies exist where that reason is a genuine one, as with blackmail.

Suggestions for Further Reading Civilising Criminal Justice: An International Restorative Agenda for Penal Reform (2013), Edited by David Cornwell, John Blad and Martin Wright (With a Foreword by John Braithwaite), Sherfield on Loddon: Waterside Press Restorative Justice in Prisons: A Guide to Making It Happen (2006), Tim Newell and Kimmett Edgar (With a Foreword by Erwin James), Sherfield on Loddon: Waterside Press Crime, Shame and Reintegration (1989), Braithwaite J, Cambridge: Cambridge University Press Justice for Victims and Offenders (1996) edn.2, Wright M, Sherfield on Loddon: Waterside Press ‘Restorative Justice’ at justice.gov.uk/victims-and-witnesses/restorativejustice Victim Support: www.victimsupport.org.uk

10  Causes of Crime

Explaining why crimes occur and suggesting what to do to stop them is a veritable industry. Politicians and CJS practitioners apart, it is the province of criminologists and sociologist, though people from all walks of life offer opinions. In truth, there are no easy answers or ‘tidy solutions’. Elusive questions concern why some people break the law when others remain law-abiding in comparable circumstances; or how any one solution can possibly fit all types of crime. Some Explanations for Crime

In no particular order, some causal explanations recur repeatedly: • indiscipline, immorality or lack of guidance • peer pressure and similar influences • gang culture or adverse role models • poverty or environmental factors • drug or alcohol misuse • lack of self-esteem, self-worth, self-image or motivation • inequality or being an outsider • gambling, undue risk-taking or poor judgement • disadvantage, discrimination, or ‘being marginalised’ • criminal associates, being labelled ‘bad’ or ‘demonised’ • inadequacy or low coping skills • poor education, illiteracy or dyslexia • rootlessness, loose community ties or poor relationships • lack of a stake in society or ‘lesser eligibility’ to participate • social exclusion, disaffection or being a ‘loner’ • institutionalisation, having been in care or prison • environmental or situational factors

130

• • • •

CRIMINAL JUSTICE

anger, lack of self-control and impulsiveness personality disorder, psychopathy, mental illness or low IQ disaffection, suppression or belief that the law is wrong lack of ‘good’ parenting.

No Single Cause, Explanation or Solution

Since many of the above ‘explanations’ can be interwoven or absent in a given scenario, it is easy to see why they are contentious. Tackling ‘underlying causes’ has been an aim of governments of all political hues, e.g. by confronting social exclusion, anti-social behaviour, regenerating run-down estates. Yet crime is not just about deprivation, lack of opportunity or ‘poor street lighting’. Correlation may be admirable, but it does not answer everything, e.g.: • Why do otherwise ‘respectable’ people feel free to break the law: speeding, using a mobile telephone at the wheel (but not nowadays it seems offences of ‘excess alcohol’) • Why do some ex-prisoners ‘go straight’, others become repeat offenders or go on to become ‘old lags’? • Why are some crimes altogether baffling, such as those of serial murderer the late Harold Shipman, a ‘trusted’ GP and it is said popular member of his local community? • Why do rich people sometimes commit (massive) frauds? • Why is abject poverty no guarantee of a criminal lifestyle? • Why might someone with a blameless record suddenly go ‘off the rails’, or conversely a confirmed offender reform? • Why are psychopathic traits such as extreme single-mindedness lauded as an asset in business, sport or the arts but dangerous predictors of criminality in some people? ‘Broken Windows’ and Going Straight

One well-known theory of crime, but that squares only with explanations concerning a certain strata of society, is known as ‘broken

10  Causes of Crime

131

windows’. This environmental theory from the 1980s is attributed to USA criminologists James Q Wilson and George Kelling. It holds that crime, fear of crime and poor law enforcement are more likely to occur and be accepted in badly maintained areas, where ‘windows get broken and remain so’, due, e.g. to low levels of respect, self-esteem or motivation. Of more general interest perhaps are ‘desistance theories’ which chart why a proportion of offenders give up offending at some point in their lives, often young men as they mature and take on responsibilities: those who, as Andrew Rutherford put matters, ‘grow out of crime’ and so should be helped or ‘managed’ in that process. What Works?

From the 1980s there was a move away from pre-occupations with why crimes occur (and the ‘rehabilitative ideal’ mentioned in Chapter 7) in favour of evidence-based research concerning ‘what works’ to prevent re-offending in particular. ‘What Works?’ became linked to the delivery of services to a consistent standard and which are effective in achieving aims and outcomes. It was adopted by public service managers generally in the 1990s, not just those in the CJS. What works has long been associated with arguments that some sentences do seem to work, such as ‘a short, sharp sentence on a first offender’, although much seems to depend on anecdote and the use of early imprisonment can be both disproportionate and unfair if used for offences that do not in themselves merit it. Some of the most influential work undertaken in the UK about what does work with offenders and in so doing prevents crime was undertaken in the late-1990s for the Home Office by Andrew Underdown and subsequently extended in a guide compiled by Tim Chapman and Michael Hough. This advice deals among other things with some of the issues already noted in this book: the value of research, targeting, goals, information systems, monitoring, validation, evaluation,

132

CRIMINAL JUSTICE

risk-assessments (including acceptance that some things will not work as part of a process in which effective solutions are being sought) and identifying and correcting systemic weaknesses or working practices. It comments that programmes ‘which match staff and offenders’ learning styles and engage the active participation of offenders are likely to be more effective’ (the ‘responsivity principle’). They must set clear objectives for what people under supervision are expected to achieve, together with plans to enable them to complete courses and so on, and for what hurdles are to be overcome at each stage as the offender progresses through a sentence. It also looks at quality and integrity in the delivery of services and programmes and notes that effective practice depends on: • an uncompromising stance against the harm caused by crime • a strong belief in the capacity of people to change • the importance of [offenders] taking personal responsibility for [their] behaviour • the necessity of learning from experience • the value of partnership • the need for social inclusion; and • public accountability. The guide concludes by emphasising that ‘by getting it right’ efficiency will increase. Pessimists have claimed that ‘nothing works’, or that no-one can prove that it does rather than random factors linked to changes in an offender unrelated to his or her sentence. Worryingly, the over-certainty of ‘prison works’ (Chapter 1), and earlier disillusionment with ‘treatment’ or ‘medical’ models in which offenders resemble patients has left criminal justice in search of a new focus to meet the challenges of the fast-changing world described in Chapter 4. For example, in its ‘Bromley Briefings’ the Prison Reform Trust has pointed out that overall re-offending rates have continued to rise at the same time as

10  Causes of Crime

133

prison sentences have gone up by an average of two years and seven months, suggesting a need for support, or greater support, when short-term offenders in particular are released. Criminology and Penology

These subjects nowadays form the basis of numerous courses at universities and colleges involving studying crime and punishment respectively in a scientific, research-based and analytical way. Criminology branches out into criminal psychology, a specialist discipline, and forensics, the use of science and technology in the detection of crime (Chapter 4). Both are interconnected with the search for causes of crime. Criminologists may specialise, e.g. in serial killing, offender profiling or turning points in the lives of offenders, whilst penologists concentrate, e.g. on the utility, effectiveness or need for a particular kind or level of punishment (or non at all). Related works and papers can be readily found on the internet.

Suggestions for Further Reading ‘Broken Windows: The Police and Neighborhood Safety’ (1982), Wilson J Q and Kelling G L, Atlantic Monthly, March Evidence Based Practice: A Guide to Effective Practice (1998), Chapman T and M Hough, Furniss M J (ed.), Report for HM Inspectorate of Probation, London: Home Office Giving Up Crime: Directions for Policy (2007), McNeill F and Weaver, B, Glasgow: Scottish Centre for Crime and Justice Research Going Straight: After Crime and Punishment (1999), Devlin A and Turney B, Sherfield on Loddon: Waterside Press Growing Out of Crime: The New Era (2002), Rutherford A, Sherfield on Loddon: Waterside Press

134

CRIMINAL JUSTICE

Sage Dictionary of Criminology (2001), McLaughlin E and Muncie J, Aldershot: Sage Publications Ltd. Strategies for Effective Supervision (1998), Underdown A (with T Ellis), Report of the HM Inspectorate of Probation What Works Project, HM Inspectorate of Probation, London: Home Office: ​ www.justice.gov.uk/downloads/publications/inspectorate-reports/ hmiprobation/other-reports/whole-rps.pdf (search for ‘Underdown’) ‘What Causes Crime?’, Cohen N, The Independent, 13 March 2014 available at independent.co.uk/news/uk/what-causes-crime-1584969.html ‘What Works? Questions and Answers About Prison Reform’ (1974), Martinson R, National Affairs, Issue 35

Glossary of Words, Acronyms and Abbreviations

ACPO Association of Chief Police Officers www.acpo.police.uk Act Act of Parliament (aka Statute) Adjudication A term used in relation to any determination requiring a judicial

CHIS Covert human intelligence source (e.g. an undercover police officer or informer) CICA Criminal Injuries Compensation Authority

approach, but especially under the

CID Criminal Investigation Department

system of prison discipline

Circuit judge A judge of the Crown Court

Adjournment Putting a case off to another day or time, including short breaks in court proceedings

CJS Criminal justice system COBRA Cabinet Office Briefing Room A. The label given to the government’s

Advance disclosure See Disclosure

high level committee to alert and

ANPR Automated number plate

protect the UK to and against threats

recognition ASBO Anti-social behaviour order Boiler room fraud An aspect of organized crime (Chapter 1), fraud committed by

to national security. Confession An admission of guilt made to someone in authority, usually meaning the police

promoting worthless or non-existent

CPS Crown Prosecution Service

investments — notionally from a

CRASBO Criminal anti-social behaviour

basement or ‘boiler room’

order

CA Court of Appeal

CRB Criminal Records Bureau

CCRC Criminal Cases Review

CRC Community rehabilitation company

Commission (miscarriages of justice) CDH Criminal directions hearing CDRP Crime and Disorder Reduction Partnership

DCSF Department for Children, Schools and Families Deferment Putting-off sentencing for up to six months Desistance An offender stopping offending: ‘going straight’

136

CRIMINAL JUSTICE

Discharge Either (a) an absolute or conditional discharge (Chapter 7) or (b) being discharged following an acquittal Disclosure Advance disclosure of the prosecution case (or possibly of a defence aka ‘defence disclosure’) Discontinuance Where the CPS decides

HDC Home detention curfew HMCTS Her Majesty’ Courts and Tribunals Service (administrative) HMPS Her Majesty’s Prison Service HMRC Her Majesty’s Revenue and Customs HO Home Office www.gov.uk/ government/organisations/home-office

not to keep going with a case which it

Holmes See PNC

initially decided to prosecute

HSE Health and Safety Executive

Diversion From prosecution or penal custody, e.g. under a referral scheme or community alternative DPP Director of Public Prosecutions ECHR European Convention on Human

IEPS Incentives and earned privileges scheme (in prison) IMB Independent Monitoring Board (for a prison) Indictable offence An ‘indictable only’

Rights (Note that the European

offence (such as murder or rape) can

Court of Human Rights is usually

only be tried and sentenced in the

abbreviated as ECtHR)

Crown Court

EHRC Equality and Human Rights Commission Either way offence One that can be tried

Ingredient A component of an offence (part of its definition) or of a defence Inside Time Leading newspaper for

in the magistrate’s court or the Crown

prisoners that is also available online

Court (see also mode of trial)

www.insidetime.org

FBI Federal Bureau of Investigation (USA) FCA Financial Conduct Authority FPN Fixed penalty notice FPND Same for disorder FSS Forensic Science Service GCHQ General Communications

IPCC Independent Police Complaints Commission JP Justice of the peace: a synonym for magistrate Judiciary Judges and magistrates Jurisdiction The extent to which power extends, usually meaning geographical

Headquarters (Government ‘listening

or temporal (time-related) jurisdiction

post’)

or the limits of the power of a court

Glossary of Words, Acronyms and Abbreviations

to try or sentence someone or public authority to take action Koestler Trust The UK’s best-known

137

MPS Metropolitan Police Service www. met.police.uk Nacro A charity to support ex-offenders,

prison arts charity. Named after

work in partnership with CJS

Arthur Koestler (1905-1983) www.

undertakings and influence criminal-

koestlertrust.org.uk

justice policy-making. Nacro

KPI Key performance indicator

nowadays uses this acronym rather

LCJ Lord chief justice

than National Association for the

LJ Lord justice (a judge of the Court of

Care and Rehabilitation of Offenders.

Appeal) MA Magistrates Association www. magistrates-association.org.uk MAPPAs Multi-agency Public Protection Arrangements MHT Mental Health Tribunal MI5 The UK internal or ‘homeland’ security service as opposed to MI6

www.nacro.org.uk NCA National Crime Agency NFA No further action or no fixed abode Niacro Northern Ireland version of Nacro (above) NOMS National Offender Management Service NPS National Probation Service

which covers external or international

(nowadays often just called Probation

threats

Service)

Mode of trial Procedure under which

OASys Offender Assessment System

magistrates decide whether an either

OCJR Office for Criminal Justice Reform

way offence should be tried in the

Offender manager Either a probation

Crown Court or magistrates’ court MOJ Ministry of Justice. Various other

officer or prison officer (or possibly a contracted private sector employee)

MOJ sponsored bodies are also

charged with oversight of a prisoner,

described at www.justice.gov.uk

ex-prisoner or someone subject

Monitoring Keeping track of an offender

to a community sentence. HMPS

or the activities of an agency, service

and the NPS often have Offender

or court outcomes, etc. Hence also

Management Units (OMUs).

electronic monitoring of offenders and ‘monitoring and evaluation’, including for research purposes.

PACE Police and Criminal Evidence Act 1984

138

CRIMINAL JUSTICE

Paperwork Term used when a case is dealt

RRO Race relations officer

with ‘on the papers’ rather than a

Sacro Scottish version of Nacro (above)

formal court hearing

SARA Scanning Analysis Response

Partnership The heading under which joint working between agencies or services is discussed PC Police constable PCSO Police community support officer PII Public interest immunity Plea bargain An arrangement or ‘deal’

Assessment Scotland Yard Short for either the Metropolitan Police service or more especially its CID SDPD Serious and dangerous personality disorder SFO Serious Fraud Office

under which a prosecutor accepts a

SOCO Scenes of crime officer

plea of guilty to a lesser charge, or to

Summary offence A ‘purely summary

some charges but not all those which

offence’ can only be tried and

could have been proceeded with

sentenced by magistrates.

PNC Police National Computer (Holmes) PSR Pre-sentence report, i.e. by the Probation Service (Chapter 7)

Therapy A way of dealing with personal problems or issues by discussing them with a trained practitioner and/or

PRT Prison Reform Trust

other people similarly affected with a

PSNI Police Service of Northern Ireland

view to solutions, closure, etc.

PTS Pre-trial services Referral Passing someone to an agency or

UKBA UK Border Agency (aka Border Force) www.ukba.homeoffice.gov.uk

charity, etc. for them to deal with a

VLO Victim liaison officer

specific problem or issue and maybe

VS Victim Support www.victimsupport.

make a report to the court Representations Points put forward by a lawyer or defendant to a court or agency with a view to influencing

org.uk WO Witness order, i.e. to attend court and give evidence Zero-tolerance A method of law

the outcome, e.g. during a plea in

enforcement in which no quarter

mitigation

is given to offenders, involving

RIPA (Reaper) Regulation of Investigatory Powers Act 2000 RJ Restorative justice

automatic arrest, prosecution and firm dealing by a court (Chapter 5)

Index

abuse xiii acceptable behaviour 26 accommodation 101 accountability xii, 113 achievement 29 acquittal 33, 38 Act of Parliament 22 actus reus 40 adjudications 120 administrative penalties 25 admission 44 advance passenger information 71 adversarial system xvi advocate special advocates x, 57 affirmation 42 aggravation 102 aiding and abetting 28 aims and purposes xvi Aitken, Jonathan 42 alcohol 20 alibi 28 anarchy v ancillary orders 106 anti-social behaviour xviii, 26 appeal xii, 38 arbitrariness xiii Archer, Jeffrey 42 arrest 36, 85 assets xv, xvi Association of Chief Police Officers 83 attempt 28 attorney general 51 bail 36, 86 balance xii balance of probabilities 40 barrister 56 ‘beating the system’ v best practice 62 beyond reasonable doubt 40

bigamy 21 Birmingham Six 95 black economy 31 blackmail 29 Blair, Tony xiv Bloody Code xvii blue collar crime 30 border control 47, 50 bribery 53 Bridewell 111 broken windows 130 Bryant, Naomi viii Cabinet 54 capital punishment 111 Carter Report 109 causes of crime 129 cautions 25, 32, 35 CCTV 45, 58, 71 cell police cells 37 charge 36, 85 chief constable 77 children child abuse vii, 20 child protection 57 offences against children vi China ix City of London Police 74 civilians 80 civil matters 24, 27 civil wrongs 25 Climbié, Victoria viii cold crime 32 command and control centres 77 community community justice 59 community sentence 103 compensation 106 Criminal Injuries Compensation Authority 106

140

CRIMINAL JUSTICE

complex fraud 55 confessions 36 confidence xiii, xv, xviii conspiracy 28 constitution 48 Constitutional Reform Act 2005 x contempt of court 46 contract killing 29 control v crime control vi conviction 92 corrections 99 corruption xviii, 20, 30, 53 costs 107 courts 91 covert policing 89 ‘covert human intelligence sources’ 89 crime 20 Crime and Disorder Reduction Partnerships 57, 62 crime prevention v, xv, 75 Crime Survey xviii cybercrime 21 ‘no-crimes’ 27 organized crime vi tough on crime xiv ways of participating in crime 28 criminal Criminal Cases Review Commission 95 criminal damage vi, 20 criminal directions hearing 92 Criminal Injuries Compensation Authority 106 Criminal Investigation Department 80 Criminal Justice Act 2003 43 criminal justice system xv Criminal Records Bureau 71, 80 criminalisation 22 criminology 133 criticism xvii cross-examination xvi, 44 crown x crown immunity x Crown Prosecution Service xv, 24, 35 Crown Court 91 Crown Prosecution Service 51

custody custody officer 79 custody sergeant 79 cybercrime 21, 32, 69 dangerous offenders vii databases 70 death penalty 21, 111 deaths in custody 121 decency viii decision-making xi decriminalisation 22 defence 28 time to prepare xi deferment of sentence 107 definition 40 delay xvii delegated legislation 22 democracy v denying the holocaust 21 Department for Children, Schools and Families 34, 54 deportation 82 deprivation xiii desistance 131 detection 80 detention 85 detention at Her Majesty’s pleasure 106 deterrence 100 diminished responsibility 28, 96 diplomatic immunity x Director of Public Prosecutions 52 disadvantage xiii discharge 103 disclosure 37 discontinuance 37, 94 discretion xi discretionary sentences 104 inherent discretion xii discrimination ix, xiii district judges 55 diversion 25 diversity xiii DNA 32, 36, 69 domestic violence vii, 20 double jeopardy 38 Dovegate Prison 119 Driver and Vehicle Licensing Agency 71, 80

Index drugs 20 due process viii education 29 effectiveness xv Egypt xiii ‘either way’ offence 91 electronic monitoring 113 employment 29, 101 encouraging crime 28 equality xii Equality Act 2006 xiii Equality and Human Rights Commission xiii ethnicity xiii Europe xvii, 23, 50, 72 European Convention On Human Rights ix, 39 European Court of Human Rights 94 Europol 82 evidence 39 excess alcohol 21 excuse 28 execution 21 exhibits 39, 45 experts 41 explanation for crime 129 for decisions xi extortion 29 extradition 82 extraordinary rendition x facts 41 fairness xi family proceedings 26 fear fear of crime xviii Federal Bureau of Investigation 82 Financial Conduct Authority 54 fines 103 firearms support unit 78 fixed penalties 24, 25, 108 forensics 41 fraud 20 gangs 20 going straight 130 grass 89 Grendon Prison 119 grey crime 31

141

growing out of crime 131 Guildford Four 95 guilty plea 91 habeus corpus 111 half-way house 58 harassment 21 Hare Psychopathy Checklist vii harm xvi hate crime 31 health and safety 21 Health and Safety Executive 54 hearsay 43 Her Majesty’s Prison Service 112 High Court 93 Hillsborough 71 HM Revenue and Customs 53 Holmes 80 home detention curfew 118 Home Office 49 home secretary xii, 49 homicide vi, 20 hostel 109 hostile witness 41 Howard League for Penal Reform xviii Howard, Michael xiv humanity viii human nature v human rights 48 European Convention On Human Rights ix identity 46 change of identity 46 identification parade 46 identity cards 47 identity fraud 47 immigration x, 51 immorality 26 Incentives and Earned Privileges Scheme 114 incitement 28 independent living 58 Independent Monitoring Board 120 Independent Police Complaints Commission 76 ‘indictable only’ offence 91 infanticide 21 influence xvii informal warning 32

142

CRIMINAL JUSTICE

informers x, 89 ingredients of offences 22 innocence 116 presumption of innocence viii, ix, xi, 39 inspection xii intention 40 internet 69 interpreters xi interrogation x interview 85 intimidation 55 investigation 36, 85 IRA vi Iraq War x judge xii, 54 vetted judges x judiciary 54 jury 54 justice secretary x, 48 kangaroo court vi keeping the peace v, 26 Ku Klux Klan vi law emergency laws ix law and order v, viii Law Commission xviii Lawrence, Stephen 71, 84 leading questions 44 Leeson, Nick 30 legal court legal adviser 56 legal aid xi, 56, 105 legal assistance xi legitimacy xiii leniency 45 liaison 48, 62 Libyan Embassy siege x life sentence xi, 105, 117 Listeners 117 literacy 117 Lockerbie bombing x ‘low-level’ offending 32 Macpherson Report 84 Madoff, Bernie 30 Mafia vi magistrates 54 Magistrates’ Association 99 Magistrates’ Court 91

Magna Carta 24 management 61 case management xvii offender management 61, 110 mandatory requirements xi mandatory sentences 104 manslaughter vi, 22 maturity 131 mens rea 28, 40 Mental Health Tribunal 48 mental impairment 57, 95 mercy 24 Metropolitan Police Service 74, 83 Ministry of Justice xviii, 48 miscarriage of justice 95 misconduct in public office xiii missing persons vii ‘missionaries’ 109 mitigation 24, 102 mob rule vi mode of trial 92 monitoring xii electronic monitoring 72 moral panic 22 motivation 29 motive 29 Multi-agency Public Protection Arrangements vii, 57 murder vi, xi, 22 Nacro xviii National Crime Agency 73, 80 National Identity Scheme 47 National Offender Management Service 57, 62, 112 National Policing Agency 29 National Probation Service xvi, 108 national security vii, x, 50 Nazi Germany ix negligence 25 Neighbourhood Watch 59 New Labour 21 ‘no-crimes’ 27 no further action 45 ‘no-go’ areas ix North Korea ix not guilty plea 91 oath 42 obstructing justice 46

Index offences definition 22 Offender Assessment System (OASys) vii, 116 Office for Criminal Justice Reform xviii omission 40 openness xii opinion 41 organized crime vi, vii, 29 PACE clock 85 paperwork cases 38 pardon 95 parole viii, 118, 119 partnership 62 pathologists 42 penalty points 25 penology 133 performance indicators 62 perjury 42 persistent offenders 101 perverting the course of justice 46 plea bargain 37 police 74. See also Association of Chief Police Officers; See also City of London Police; See also Independent Police Complaints Commission; See also Metropolitan Police Service; See also reform: police reform; See also Scotland: Scotland Police armed police 88 complaints against the police 76 Police and Criminal Evidence Act 1984 36, 65, 95 police commissioners 76 police community support officers 79 police constables 78 Police Federation 83 Police National Computer 80, 81 Police Service of Northern Ireland 74 police state 76 police station 84 Police Superintendent’s Association 83 policing by consent 74 polygamy 21 Poulson, John 30 preliminary hearings 38 pre-sentence report 109 previous conviction 43

143

prime minister 54 priorities vii prison 111 Her Majesty’s Prison Service 112 prison building programme 111 prison estate 112 Prisons and Probation Ombudsman 120 Prisons Board 112 ‘prison works’ xv prisoner. See also life sentence prisoner categories 114 requests and complaints 115 segregation 115 Prison Reform Trust xviii private prosecution 24 private sector xvii, 58, 113 Privy Council 49 probation National Probation Service xvi, 108 procedure 36, 65 proceeds of crime 53, 72 profiling 73 prohibition era 20 proportionality xi prostitution 20 protecting the public v protection rackets 29 psychology vii psychopaths 97 public public interest immunity x, 89 public order vi, 20 public protection 106 public safety vii, 49 punishment 23, 99 punitive-mindedness vi, 99 purposes of sentencing 100 Queen’s Counsel 56 Queen’s evidence 41, 45 questioning 36 race xiii raid 87 rape vi reasonableness xi reasons xi reassurance 75 record-keeping xii

144

CRIMINAL JUSTICE

referral 25 referral schemes 59 reform xvii, xviii, 75 Office for Criminal Justice Reform xviii, 49 police reform 76 prison reform 122 Regulation of Investigatory Powers Act 2000 32, 89 regulatory offences 32 rehabilitation 100 reintegration 100 release 118 relevance xii religion vi, xiii remand 36 remorse xvii representations 38 reprisals 37 reputation 30 requirements 104 resettlement 58, 100 responses v, xiv responsibility xvii criminal responsibility 27 restriction of liberty 111 review xii riots vi, 20 riot squads 78 risk v–viii, 25–26, 64, 97, 105, 109 risk assessment vii, 110 risk aversion viii road traffic 78 robbery vi Royal Commission 95 Rule of Law viii, 35, 76 safety public safety 49 sanctions v, 23, 111 Scanning Analysis Response Assessment 89 Scotland xvii Scotland Police 74 scrutiny xii, 63 search 86

security v, 68 high security 95, 111 national security x, 49, 50, 51, 57, 83 security category 114, 117 security guards 74, 78 seizure 86 self-defence 21, 28 sentencing ‘end-to-end’ sentencing 110 Sentencing Guidelines Council 99 Serious Fraud Office 53 sexual offences vi, vii, 20 silence right to silence xvi similar facts 43 Snowden files x social social exclusion xiii, 129 social harmony vii social services 57 solicitors 56 Soviet Union ix special advocates 57 special constables 79 standards 62 standard of proof 39 state v, 23, 24 statements witness statements 44 statistics xviii Stockwell shooting x strategy v, xvi strict liability 40 summary offence 92 Supreme Court 94 surveillance x, 58, 70 suspects 36 suspended sentence 104 suspicious activity reports 70 Syria ix Taliban vi tape recordings 68 targets vii, 72 technical defence xvii terrorism vii, 20, 85 testimony 39 ‘text’ 89 Thailand xiii

Index theft vi, 20, 22 therapeutic prisons 119 thief-takers xvii Third World ix time limits 37, 66 timetable 66 Tories xiv torts 25 tough on crime xiv trafficking 20 transparency xii transportation 111 trial 92 UK Border Agency 51 Ukraine xiii unacceptable behaviour 26 ‘up-tariffing’ 104 vagrancy 21, 111 value for money 75 vengeance vi victims xv, xvii, 35 video Video Identity Parade Electronic Recording 69 video links 68 video parade 46 video-recording 45, 68

vigilantes vi violence vi, 20 Virtual Global Taskforce 69 visibility xii voluntary sector 58, 79, 125 vulnerable people vii, 57 weapons right to bear arms 21 welfare 109 what works 131 white collar crime 30 Wilde, Oscar 112 witnesses xi, xv, xvi, 37, 40, 41 interference with witnesses 46 witness protection 46 witness rooms 46 witness statements 44 work employment 29, 59, 114, 116, 117 ‘working out’ 101 working together xv, 62 youth crime 33 youth offending teams 57 zero-tolerance vi, 88

145

A History of Criminal Justice in England and Wales by John Hostettler

‘Every student entering law school should have a copy and read it’: Criminal Law and Justice Weekly Paperback and ebook ISBN 978-1-904380-51-1 2009 | 352 pages

An ideal introduction charting all the main developments of

criminal justice, from Anglo-Saxon dooms to the Common Law, struggles for political, legislative and judicial ascendency and the formation of the modern-day Criminal Justice System. Among a wealth of topics the book looks at the Rule of Law, the devel-

opment of the criminal courts, police forces, jury, justices of the peace and individual crimes and punishments. It locates all the iconic events of criminal justice history and law reform within

a wider background and context — demonstrating a wealth and

depth of knowledge. John Hostettler is well-known to readers of Waterside Press books. He is just as at home discussing the Star Chamber or Seven Bishops as he is the impact of the executions

of King Charles I, Derek Bentley or Ruth Ellis. From Victorian

policing to madness and mayhem, hate crime and miscarriages of justice to radicals, terrorists, human rights or restorative justice, A History of Criminal Justice in England and Wales contains an enormous supply of facts, information, and ideas. www.WatersidePress.co.uk ‘Highly recommended’: Choice

CRIMINAL JUSTICE A Beginner’s Guide

Bryan Gibson

This basic guide sets out the main components of the criminal justice system in an accessible way. Intended as a starting point for readers coming to the subject for the first time it is ideal for new staff, volunteers, first year students and other ‘rookies’: a short book of facts, explanations and pointers to further study. Chapters: 1 What is Crime? 2 What is Criminal Justice? 3 Who’s Who? 4 Modern Developments 5 The Police 6 The Criminal Courts in Action 7 Sentencing (including Probation Work) 8 Prisons and Imprisonment 9 Victims and Restorative Justice 10 Causes of Crime The book also features the Rule of Law, risk assessment, decision-making, forensic investigation, witnesses, surveillance, criminology, crime reduction strategies, border controls, penal reform and some international and historical dimensions.

Bryan Gibson is a barrister and editor-in-chief at Waterside Press.

www.WatersidePress.co.uk

Bryan Gibson

With a Glossary of Words, Phrases and Abbreviations

CRIMINAL JUSTICE A Beginner’s Guide

The most straightforward overview available Covers the entire criminal justice system A ‘no frills’ explanation for beginners

CRIMINAL JUSTICE A Beginner’s Guide Bryan Gibson

WATERSIDE PRESS

Putting justice into words

WATERSIDE PRESS