The criminal justice system is in crisis, says a report by a think-tank: ‘something that no serious commentator should seek to deny’, says Peter Clarke, the former HM Chief Inspector of Prisons, in a foreword.
Mr Clarke, a former senior Met Police man, sets out the background: “The Crown Prosecution Service is taking longer to charge suspects and bring them before the courts than ever before. The enormous backlogs in the Crown Courts mean that victims, witnesses, defendants and indeed the wider public are waiting, sometimes for years ….” As for prisons, many are ‘in a disgraceful state’, so much so as to be counter-productive, he says; when released, offenders are more likely to reoffend.
Most crime is by prolific offenders, he adds; living ‘lives that are dangerous both to themselves and those around them. Many are addicted to drugs or alcohol. At the moment there is little in place to help set them on a better path’. He sums it up as ‘a massive policy failure that directly harms the public’. As a veteran in the field of 46 years, Clarke says he has ‘seen successive governments fail to make meaningful improvements’.
In the report proper, David Spencer notes that ‘the Criminal Justice System is now failing in its primary duty to keep the public safe’. What Spencer calls ‘Hyper-Prolific Offenders’, though a ‘relatively small group of individuals’, have a ‘hugely negative impact’ on communities. The criminal justice system fails both to adequately protect the public from them and their criminal activities; and to intervene where individuals are redeemable. Spencer calls the system a ‘public safety time bomb’, and calls for a ‘more robust approach’ to the most prolific offenders.
He argues for ‘particular focus on differentiating between the cruel, violent or unapologetically prolific – the Wicked; and the vast majority of offenders – the Redeemable’. As for prisons and the probation system, these have represented a ‘catastrophic example of State failure’ and ‘substantial reforms’ are required, he writes.
He suggests ‘a presumption in favour of community-based sentences rather than short-term prison sentences for non-violent and non-prolific offenders’. He calls for more use of ‘Out Of Court Disposal’ for the non-violent and non-prolific, such as ‘Deferred Prosecutions’. “Under these arrangements, once the police have completed an investigation, under a ‘Deferred Prosecution’ the police pause a prosecution if the offender agrees to undergo a series of diversionary or restorative activities ….” Few police forces do ‘Deferred Prosecution’, because, Spencer suggests, the crime is not formally recorded as having been ‘solved’; simple to change. Yet from 2012 to 2022, he notes, ‘the proportion of offenders being sentenced to community penalties has fallen substantially’.
Justice is delayed, he sets out; the number of outstanding cases in magistrates’ courts was increasing before the covid-19 pandemic and as of the summer the total was still higher than March 2020, the first covid lockdown. Over the last four years the number of outstanding cases in the Crown Courts has increased substantially. The prison population is growing and projected to far exceed the prison estate’s capacity.
Inside prisons, management of risk (and on release) is ‘grossly misunderstood’, he says. “Too often offenders convicted of very serious crimes but who are apparently ‘well-behaved’ and ‘compliant’ while in custody are assessed at a lower risk than they should be ….”
Spencer notes that those termed prolific offenders (who overall commit eight times as many offences per offender as the non-prolific) in the official statistics ‘are most likely to have started their criminal career with convictions for theft (shoplifting) with many going on to commit very serious offences’. The ‘hyper prolific’ are defined as those offenders who have accumulated at least 45 previous convictions. Spencer gives 2023 examples of ‘hyper prolific offenders’ given suspended or community sentences rather than prison.
He writes: “The classic theory of deterrence, how potential offenders are deterred from committing crime, is centred around three factors – certainty (the likelihood of the offender being caught), severity (the seriousness of the punishment) and celerity (the speed of punishment being applied). Prolific offenders have repeatedly demonstrated that they are unable or unwilling to abide by the rules set down by our society and every possible effort must be made to deter them ….”
Inside prisons, Spencer points to how ‘the number of bureaucrats has ballooned …. while the number of staff in frontline operational and leadership roles has stagnated’, which he terms ‘a grave failure in public safety leadership’.
About the author
David Spencer, a former Metropolitan Police officer, is Policy Exchange’s Head of Crime & Justice. He was the author last year of a similar report, on policing, titled ‘What do we want from the next Prime Minister’. You can freely download the 54-page report, The Wicked and the Redeemable, from the Policy Exchange website.
Photo by Mark Rowe: Inverness prison outer wall.
