Evening Standard, Tuesday, 26 October 2004

Criminal failures of our justice system

The government wants to remove some defendants' right to conceal previous convictions. But much more is needed to improve our courts.

by Nick Ross
Presenter of Crimewatch

English criminal law is revered around the world. Based on centuries of tradition refined through years of precedent, it protects the innocent and curbs the power of the authorities. So when David Blunkett proposes to remove a cornerstone of the system, the right of the defendant in cases of theft or child sex crimes to conceal previous convictions from court, there are howls of outrage.

But in my view, Mr Blunkett is merely tinkering - even though this is a relatively good piece of tinkering. My years of involvement in criminal justice policy have left me with a growing frustration that the political debate on crime is disconnected from the reality of offending and victimisation. Worse, so are the courts themselves. I fear the CJS may now be where the NHS was in the 1980s: held in high esteem but heading for the cliff-edge.

In truth, the whole criminal justice system is both unjust and largely tangential to crime. This is all the more remarkable because the system employs some of the sharpest minds and most decent people in the country.

But the whole process of courtroom debate is a poor way of assessing facts. Defenders of the system, and especially of juries, like to think that being judged by one’s peers is a powerful guarantee of freedom. It is not. There is less guarantee of justice, at least in jury trials, than there is of secrecy and impenetrability.

Imagine we applied court rules to assessing, say, flight safety. We would be trying to certify a jumbo jet as airworthy through the judgment of 12 people selected for their ignorance. Any who knew anything about air traffic control or aeronautical engineering would be deliberately excluded. They would then be subjected to biased arguments by people paid specifically to be selective in their evidence. Many of the facts would be withheld from them, even uncontested facts such as previous crashes. Finally our jury would go to a back room on its own, in secret, and after a while it would come out and pronounce its verdict. Would you feel confident flying in that plane? Are you happy to free or imprison a sex offender on that basis?

What is more the courts have a general over-regard for procedural niceties, often more concerned about legal loopholes than about public safety. So a serial rapist can be freed because of a technical error, or, as we saw last week, a police officer twice accused of rape can still be in uniform because of an error in disclosing a witness statement. But the failings in the system do not end there: the processes of sentencing and punishment are equally bizarre. Politics rather than science rules supreme.

One of the main objectives of sentencing is to reduce crime by preventing re-offending. Yet 50 per cent of adults and 75 per cent of young offenders re-offend within two years. Even those figures count only those who are caught for a second time. According to fairly reliable research among sex offenders, for example, actual re-offending is more than five times greater than reconviction rates. What we need are real trials, by which I mean randomised controlled trials – the fair tests used in medicine to compare one treatment with another. If RCT’s are good enough to guide life-and-death clinical decisions, they are certainly good enough to guide sentencing decisions, and are long overdue.

Meantime we spend well over £5 billion a year on the court and prison system in England and Wales – a mountain of public expenditure tipped into a dark void of ignorance about what really works.

These failings are in part concealed by lies or at any rate untruths. For example, when we are told that an offender has been sent down for four years, the sentence is really two years - that prisoner is entitled to release after serving half the sentence. Even violent long-term prisoners and are entitled to go free after serving two-thirds, and in practice can expect to be released after half the term. In this Kafkaesque world four means two. And sentences can be served concurrently, so that even more bizarrely 2+2 = 1. I’m not arguing for longer sentences. I just don’t share the system's contempt for the public, which insists that you have to play tricks on them.

None of this would be so bad if the system actually controlled crime. In most offences, the sort that concern most people most often, it is largely tangential. We are very good at catching murderers, but with volume crime you get what is know as the "criminal justice funnel". So for every 100 crimes revealed by the British Crime Survey, just 50 are reported to the police, of which 45 are officially recorded. Twenty four are "cleared up" - which means the police think they know who did it but usually don’t have the evidence to go to court – and just three result in cautions or convictions. Fewer than one per cent will receive a custodial sentence. This means 97 per cent of crime does not result in any punishment at all. Actually, it is not quite that bad because some crimes are committed by repeat offenders who will be punished for at least some of their crimes, but perhaps it helps explain why, when crime declines, the public does not feel things are getting better.

I am confident most answers to crime lie outside the courts. Don’t get me wrong: it is still vital to catch people when they do wrong. I remain a great believer in detection and in the work we do on Crimewatch and at the sophisticated detection programmes pioneered at the Jill Dando Institute at UCL. But of great importance still is designing a world where crime is simple less likely and less rewarding.

That has happened to some extent in the past decade. Crime has fallen since 1995, starting under the Tories, though Labour, ungraciously, uses 1997 as its starting point, and the Tories, grudgingly determined to paint crime as a Labour failure, can’t celebrate their own success. The reason it has fallen is not because people have got nicer, but because we have turned to design against crime. For proof, look where the advances are. Car crime, for example, is down almost 50 per cent, mostly because of steering locks, deadlocks, stereo PIN numbers, safer car parks and the rest. We must now apply this to all crime - more systematically, with much greater political priority, and moving the police much higher up the food chain, so they prevent crime rather than just chase after it.

David Blunkett’s reforms are modest and overdue. Don’t believe the doom-mongers who predict that English justice will be damaged. In truth, even though it is the only system we have, it is damaged already.

The author writes in a personal capacity: his views do not reflect those of the Jill Dando Institute of Crime Science or the BBC.

© Nick Ross 2004