Justice in jeopardy
The government's new criminal justice White Paper is indefensible.
Justice for All, the UK government’s new criminal justice White Paper, proposes a number of changes that will seriously erode legal safeguards of individual liberty (1).
It suggests giving magistrates sentencing powers of up to 12 months (rather than the present six), which means that fewer cases will go to jury trial. Dangerous and sexual offenders could be kept in prison indefinitely if they are judged to be a risk to the public. The ‘double jeopardy’ rule, which means that a person cannot be tried twice for the same crime, is to be removed for serious cases. ‘Hearsay’ evidence will be allowed in court.
But it is the tone of the White Paper that should provide the most concern. Home secretary David Blunkett is in charge of the punitive instruments of the state, yet he seems to think he is the manager of a small shopping centre.
Justice for All promises a ‘speedier, simpler and quality justice’. Because apparently, at present things are just ‘not working’. ‘Victim satisfaction’ has gone down and ‘people’s time is being wasted’. There is an inexcusable ‘justice gap’ between the numbers of crimes reported to the police and the number of criminals brought to justice.
Blunkett has decided that this ‘justice’ business is taking far too long and not getting the right results. It needs ‘simplifying and modernising’ so that some of these meddlesome obstacles are removed.
The most meddlesome obstacle to justice is, apparently, the ‘imbalance’ that runs throughout the whole system, which makes success more difficult for the prosecutors than the defendants. The presumption of innocence, which puts the onus on the prosecution to prove their case, obviously isn’t ‘fair’. What we need, says the White Paper, is to ‘rebalance the system’.
The formal principles of criminal justice seem forgotten here. The two sides in a law court are not like the two sides in a tennis match. The legal battle is not between the defendant and the alleged victim – the alleged victim is called as a witness for the prosecution. The defendant is on his own, and if he loses the case then he stands to lose his liberty. The prosecutor, by contrast, is backed up by the power of the state, and if he loses the case he loses nothing.
The imbalance in the system is a recognition of this fact – and a safeguard against the abuse of state power.
The guilt of the defendant has to be proven beyond all reasonable doubt. This involves a formal process, where evidence and rational argument are put together in an attempt to convince the jury of the case.
Use of state power to take away an individual’s liberty, then, must be both limited and justified. Prosecuting somebody should be difficult, because taking away his liberty is a serious business.
Justice for All pays lip-service to these principles from time to time. It talks about the ‘tradition of criminal justice of which we can be rightly proud’, assures that only guilty people should be convicted, and says that the presumption of innocence is still important. But in fact, the report is completely devoid of any such principles.
This is what accounts for the White Paper’s managerial tone. One could imagine that it is not individuals’ lives and liberties being decided here: it is simply a question of making the system work. Defendants are presented as fodder for the system, as potential results.
The White Paper seems to assume that it is obvious whom the guilty ones are, and that prosecutors should be allowed to get them rather than being obstructed all the time. There is little notion that the criminal justice should limit itself, that there is an important boundary between the state and the individual. Blunkett seems to feel free to redesign the criminal justice system in any way that will ‘work’.
One of the most disturbing features of the White Paper is that it does not justify these reforms on the basis of serving the state’s own goals, as it might have done in the past. The new encroachments upon liberty are instead justified in terms of concerns for the welfare of the ‘victim’, and by reference to what the public are presumed to want.
Justice for All talks about intervening on behalf of the ‘victims’ (the term ‘prosecution’ has been seemingly abandoned). It conjures up the victim as a vulnerable and distressed child who needs helping, and the state as a caring parent.
Victims, says the White Paper, ‘must be nurtured’ and ‘protected’. Witnesses may need protecting from cross-examination: ‘in some cases witnesses are just too frightened to give evidence because they feel intimidated.’ At present, there is a ‘lack of care and respect being shown’ towards victims and witnesses, who can be ‘kept waiting at court and not told why’ or ‘not [have] the harm caused to them acknowledged’. The assumption that victims are rational adults seems to have gone out of the window.
The other kind of justification given for these new encroachments upon liberty is that the public thinks (or feels) that they would be right. The paper begins by saying: ‘The people of this country want a criminal justice system that works in the interests of justice. They rightly expect that the victims of crime should be at the heart of the system.’ Later, it says that there is a ‘strong sense of public frustration at the way in which the process operates, and at its outcomes’; and that ‘[t]he public are sick and tired of a sentencing system that does not make sense’.
All of this is working towards a criminal justice system that is more and more informal. Justice for All seems to want the criminal justice system to become part of the community. It doesn’t want to pass judgement in a dispassionate way; it wants to become part of people’s lives.
One aspect of this is becoming more involved with the victim. ‘Supporting victims and witnesses better is not just about what happens in the courtroom. It is also about the impact that crime has on their lives. It is important therefore that the practical support and help offered covers all of these effects.’
But the other aspect is becoming more involved with the defendant. The managerial tone of Justice for All only applies to defendants who refuse to cooperate with the process of justice: ‘There are too many cases in which tactical manoeuvres disrupt the process’, one section complains. Once an individual admits their guilt then they are treated quite sympathetically: they too can become part of the process of justice.
There is no desire to bang lots of people up in prison – they are crowded enough already. Instead, each defendant should receive ‘the punishment that is appropriate’ for them. Justice for All proposes a series of pick’n’mix sentences (‘customised community sentence’, ‘custody plus’, ‘custody minus’, ‘intermittent custody’), which involve varying combinations of prison and community service. These punishments involve more informal infringements of liberty, where people are supervised while going about their everyday lives. In these cases, the criminal justice system can gain a more intimate involvement with people.
Another move towards informality is to get the judgements out of the courtroom. ‘Caution plus’, for example, is a sentence given by a police officer rather than going through all that hassle of bringing and proving charges against somebody. There will be more specialised courts to deal with specific kinds of offences. And the White Paper says that the courtroom itself should also become less formal, suggesting that it should be made ‘more accessible’ in a number of ways, including ‘reviewing court dress’.
There are also suggestions that the criminal justice system should help to build community and engage the public: ‘our goal is strong, safe communities.’ Restorative justice – punishment as reparation – is one of the proposed measures here.
‘Restorative justice schemes have the potential to offer constructive, community-based responses to crime’, says the White Paper, and may involve ‘[bringing] together all parties (offender, victim, friends, family, community representatives and others)…to resolve how to deal with the aftermath of the offence’. There is the option of the defendant paying damages or making amends in some other way to the victim.
Justice for All means the extension of the courtroom into all aspects of everyday life – and the removal of the safeguards that make it just.
Of course juries sometimes get it wrong – that’s why we need them, by Mick Hume, The Times (London), 15 July 2002
Second bite at double jeopardy, by John Fitzpatrick
(1) See the full version of Justice for All (.pdf)
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