The great con trick of the politics of criminal law and policy

 6th April 2021

Anyone who knows and cares about the criminal justice system in England and Wales knows that the system is collapsing – and that the word ‘system’ is itself hardly still applicable.

On the face of it, however, this presents a paradox.

For we have a government – with loud and shouty political and media supporters – committed to ‘Law and Order!’.

You would think that a government with such a stated priority would ensure that the substance of policy would have some correspondence to the rhetoric of its politics.

You would be wrong.

For, as this blog has averred elsewhere, there is a distinction – a dislocation – between the politics and the actuality of the criminal justice system.

It is easy for a politician to get claps and cheers with demands for ‘tougher penalties’ and ‘crackdowns on crime’!

Time-poor political reporters will type easily about ‘new laws’ and ‘longer sentences’ and so on.

And voters will nod-along, as they are fooled into thinking some useful thing is being done.

But there is no point having tougher and tougher penalties, and longer and longer sentences, and more and more laws, if the criminal justice system itself is not working.

As the former attorney general Dominic Grieve sets out in this article, the reality is that the system is halting and crashing.

Part of the problem is lack of cash – and for the the reasons Grieve submits.

But another part of the problem is a lack of policy seriousness – an assumption that it ultimately does matter that the criminal justice system comprises a motley of inadequate court buildings, demoralised staff, badly let contracts, ancient IT systems, health and safety horrors, a general lack of safety for everyone involved, and a general drift of the system towards discharging greater re-offending, and not less.

If you invited a demon to devise the worst possible state of affairs in the criminal justice system the current situation is pretty much what you would get.

But: ‘new laws’ and ‘longer sentences’ and ‘tougher penalties’ and ‘crackdowns on crime’!

Slogans that are like loose gear sticks and brakes, not attached to any other part of the vehicle.

Perhaps the only consolation is that such an absolute system failure tells against England and Wales becoming, in practice, an authoritarian state.

But it is not only authoritarian states that need a functioning criminal justice system – modern liberal democracies need working criminal justice systems too.

And so we have a system that should satisfy nobody – other than of course, dishonest purveyors of easy criminal justice solutions: fraudsters of modern politics.


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12 thoughts on “The great con trick of the politics of criminal law and policy”

  1. The government and in particular both the prime minister and the current Home Secretary and the probable next holder of the post all share a deeply held authoritarian view of the exercise of power, which is also shared by the police.
    The government would like to re-write the criminal law in the light of their political view. By engineering the collapse of the criminal justice system they will be in the position to re-write the criminal law as they wish.
    The end of legal aid in criminal trials, a huge increase in jail terms and the offences for which you can be jailed. I fear the re-introduction of the death penalty – notwithstanding our international treaty obligations. There are many others areas of the criminal law where the government will make changes, these are but examples.

  2. Experienced Civil Servants and a methodical system have been replaced with a contracted out 1000 piece Wasgij. The picture on the box bears no resemblance to the requirement and the promises savings have been delivered by binning 700 random pieces.

  3. It’s not often I disagree with Mr Green, but I do on this occasion.

    The gradual decline of the criminal justice administration in England and Wales predates populist ‘law and order’ enthusiasts and, therefore, possesses rather deeper roots.

    I’d suggest the inflection point away from the post-War legal aid settlement began in the early 1980’s, as part of the campaign against the independence of professions as diverse as the law, medicine and dentistry. Peter Williams wrote a book on the subject of the downgrading of the professions before the turn of the century; the trend was evident by then.

    In the case of criminal law, it began with the establishment by the Council of the Law Society of the Solicitors’ Complaints Bureau [now the SRA], in the early 1980’s, after Government pressure. This mirrored cost-cutting measures of various Chancellors of the Excheqeur, which led to the closure of many local Magistrates’ Courts and the de-localistion of criminal justice.

    The enfeeblement of criminal practise became fairly evident by the early 1990’s, and today’s developments were predictable 25 years ago.

    By contrast, the terms and conditions of police forces (which had traditionally been extremely poor) were upgraded. We now have one of the most expensive police services in the World, I understand.

    I remember being surprised when literally nothing changed when, in 1997, a Labour Chancellor took office. Just as in agriculture, the same mood-music played, whoever was in office. And the cost-cutting, and the emphasis on cheapness rather than fairness, continued.

    The deliberate weakening of the machinery of justice, alongside the deliberate buttressing of the police establishment, tends to suggest a rejection of the post War view of justice as a matter of, well, justice.

    My point is that it is a wholesale rejection, by the entire political establishment. And I suppose it reflects the general views of the electorate.

    Until, of course, they encounter a Custody Sergeant!

    1. ‘The gradual decline of the criminal justice administration in England and Wales predates populist ‘law and order’ enthusiasts and, therefore, possesses rather deeper roots.’

      I do not say – or believe – otherwise

      ‘It’s not often I disagree with Mr Green, but I do on this occasion.’

      We do not disagree – we are just saying different things about a large problem

  4. Like the poor, crime will always be with us. As said the problem seems to have a long history and deep social roots.

    To address a small corner of the problem, might I suggest that among the social reports presented to magistrates there be an education report and a housing report. If any or either of these be lacking in completeness, attentiveness and care let the respective directors of education and housing be hauled before the beak. A fine of about £50k on each for each miscreant lacking a provably good education or provably good housing might concentrate minds.

    As things stand there is no particular need for HMG of any stripe to do anything much but continue the Kiss Up Kick Down management style.

    My suggestion does have a few drawbacks, it costs money and begs the question what would we do with all those thousands of well educated and socially cultured additional workers.

  5. Walter Price above said “My point is that it is a wholesale rejection, by the entire political establishment. And I suppose it reflects the general views of the electorate. Until, of course, they encounter a Custody Sergeant!”

    Here in Eastbourne we had a County Court half a mile from the Magistrates Court. Around 20 years ago the County Court was sold off to build a block of flats, the court being moved to a rear extension of the Magistrates Court which itself was adjacent to the main town police station, which provided custody cells etc.

    The ‘Police Station’ was then moved near to a retail park and with it went the Custody Suite. The town centre police station buildings are now being redeveloped as flats.

    HMCTS declared that the Magistrates Court was now not economically viable and proposed closing it and moving all cases to Hastings 25 miles away leaving a town of 100,000+ with no court.

    Surely the local council would oppose the move? Far from it. Eastbourne Borough Council (EBC) issues 6,000 summonses for non-payment of Council Tax per year. Each summons (which includes a direction that the recipient need not attend the hearing) included a notice that £85 had been added in ‘Court Fees’.

    The reality was that the council paid HMCTS just £3 per case and got the court to rubber-stamp the list of miscreants allowing the council to print Liability Orders in the council offices. All councils do this. So, instead of receiving £500,000+ the court received just £18,000 per annum.

    EBC liked the fact that any complainant wishing to put their case to a magistrate would be faced with a 50 mile round trip with bus/train fares etc.

    FoI revealed that the £82 ‘profit’ made by overcharging on the summons was used to run the Council Tax admin operation, meaning that the whole process and not just the collection of late payments was funded by those in the town least able to pay.

    The Magistates Court was subsequently closed and an order to demolish passed by EBC who turn out to be the new owner of the site so they can build flats to satisfy government housing targets.

    So yes, the entire political establishment is involved.

    1. Thank you for the overview of the justice system in Eastbourne Alan.

      It has, I’m sure you understand, made me want to smash things in frustration.

      An feeling I’m beginning to understand is common amongst people working in the system itself.

  6. I don’t think the final point holds true.

    England & Wales could easily become Authoritarian states without a working CJS, because although enforcement of the new laws and tougher sentences may falter as a result of systemic collapse, there are plenty of other ways for an Autocratic Government to rig the game in their favour. Increased use of pre-trial custodial remand – So what if the prisons are full? Chuck the H&S legislation and let the institutions cram more people in. It’s not like extending basic decency and Human Rights to prisoners is a vote-winner, quite the opposite in fact.

    1. Indeed, there’s also a related side-issue I believe: with people facing LONG waits to get their case heard and have their time in court, the pressure on defendents to plead guilty (along with a sentence reduction incentive for doing so) grows stronger as systemic delays increase.

  7. I once had the unhappy experience of working in a small organisation “directed” by an authoritarian, incompetent, unpredictable (and frightened?) boss. We had almost complete licence to do nothing in return for our salaries … as doing nothing was no challenge to the boss … but trying to do something useful required nerves of steel and wasn’t ultimately worthwhile.

    Cameron, May and Johnson all strike me as being people who care a great deal about their personal prestige and are vicious in defending it. They won’t want to hear bad news and mostly will refuse to do so.

    The only external forces who can oblige them to change tack are those with the power (influence, wealth or connections) to damage them personally. These external forces are unlikely to care much about state services that don’t impinge directly on them.

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