An Open Letter - "Breaking The Cycle"


To the Right Honourable Kenneth Clarke, QC, MP, Secretary of State for Justice.

Dear Mr Clarke,

Breaking The Cycle

Firstly, thank you for giving members of the public a chance to comment on your Ministry's proposals for change in the criminal justice system as outlined in the above Green Paper.

Firstly, let me briefly state my qualifications for commenting on the subject.

None.

I am neither criminal nor criminologist, and I have managed to last nearly fifty years in this world without so much as seeing the inside of a police station or a courtroom - a record I hope successfully to defend for some considerable time to come.

My desire to comment on the Green Paper is motivated, therefore, by no professional bias and by no vested interest over and above that of wishing to live in a tolerant and humane society. For what has gone seriously wrong in penal policy in general over the last three decades is the development of a culture of macho posturing on the part of most (though not all) of your predecessors (and of previous Home Secretaries) which has sought to pander to some of the baser - if, in some cases, understandable - instincts in the population at large. So we have had ever-harsher sentences for ever more minor offences; the imposition of imprisonment increasingly as the punishment of first resort (or, indeed of only resort) rather than of last resort; the creation of brand new criminal offences where none had previously existed, or where the offences could have been satisfactorily dealt with under existing laws had they been properly and effectively operated; and the constant ramping-up of the posturing rhetoric to which I referred earlier by politicians and the less balanced (but canny) members of the media.

In this, what always seem to vanish from view in the fog of screams and snarls from those quarters are two simple facts: firstly, that it is in the best interests of society as a whole - socially, economically and ethically - that we adopt solutions which best address and best seek to correct criminal behaviour; and secondly that every person who has been in prison, is currently in prison and will ever be in prison is a human being - somebody's son or daughter, somebody's father or mother, somebody's brother or sister, somebody's spouse or partner - and therefore deserving of the right to be treated with the proper degree of dignity irrespective of what they may have done to get themselves into prison (and the same goes equally of course for those who are punished outside of the prison system). It was, as you know, one of your predecessors - Churchill - who stated that the mark of a society's level of civilisation was the way in which it treated those who transgressed its laws. It is a sentiment which should return an approving echo from anyone concerned with laws being made - and operated - on the basis of what is proportionate, what is effective in the long run, and what is most likely to meet the high standards of humane conduct. We the 'law-abiding' are still the overwhelming majority, and it behoves us to treat that minority in our midst who - perhaps once, perhaps more than once - break the bounds of what is legally permitted in our society with the same humanity with which we ourselves would hope to be treated.

More than simply being casually inhumane (in that - as you correctly recognise in Section 1 of the Green Paper - imprisonment is the ultimate sanction which may be used in a free and humane society and should therefore be used sparingly), what has been called the 'arms race' of both words and deeds in the area of penal policy in recent times doesn't even have the incidental benefit of being effective in reducing either the basic level of crime or even of reducing reoffending, as many years of statistical and other evidence clearly demonstrates.

In the light of all the above, I hope you'll forgive me for stating - as someone neither of your party nor, largely, of your politics in general - that I was pleasantly surprised by much of what I read in Breaking The Cycle. It seems, for the most part, to be balanced, reasonable and humane. I shall now address each Section of the Paper in turn.

1. Punishment

Working Prisons

It can only be beneficial to all concerned that prisoners should be given every opportunity to occupy themselves fruitfully during their incarceration. Many prisoners would probably welcome the chance to put a greater meaning into their daily lives inside, along with the possibility that it would make their time there seem to pass faster. Many of the discipline problems in prisons are probably due to the cumulative effects of boredom, which such programmes should alleviate to some degree. In addition, it would almost certainly give them a greater sense of dignity (as prison regimes seem all too often - almost as if by design - to not only remove the offender from general society, but to dehumanise them as well) and of self-esteem and self-confidence (again a problem in many offenders, especially the young). There would also potentially be a positive outcome for the offender upon release, with him having acquired skills which would be of benefit to him and to society generally.

I am slightly concerned, however, at the risks of the involvement of the private sector in the provision of work opportunities. It is not that such an involvement is ipso facto wrong (it isn't), but that such an involvement would have to be carefully and firmly managed. So, prisoners undertaking work in those circumstances should be paid a reasonable wage for their work (so as to prevent private sector companies using their labour as a way of undercutting their competitors or of boosting their profits), and that those prisoners should be protected by all relevant legislation regarding health and safety at work. This will require vigilance not only in the drafting of contracts with prospective providers, but also in the monitoring of the contractors' performance vis-à-vis such indicators. To fail to do so would - apart from the obvious cost to the taxpayer - encourage an attitude of cynicism or even hostility amongst the prisoners which would be the diametric opposite of what the policy was intended to achieve.

Tagging And Curfews

Regarding the use of tagging and curfews, I believe that the time - and the technology - is ripe for a far more widespread use of these penalties. One of the major problems with imprisoning someone is the rupture it creates - often permanently - in the offender's personal relationships, particularly with their family. For suitable cases, a tagging and curfew regime would, whilst being sufficiently onerous to be considered a proper punishment, enable family life and community engagement to be maintained, which has been shown to have a beneficial effect on the likelihood of further offending.

My one concern in this area is about your proposal to extend the maximum daily and total periods for tagging. You state that the expanded daily maximum of 16 hours and the expanded total period of one year would be carefully targeted, but many punitive measures in recent years have been touted as being intended only for limited numbers of applicable cases and then extended to something akin to a default position. This sort of 'function creep' needs to be guarded against.

Community Payback

This is another good idea in principle, but again I am concerned at the danger of standards being driven down by a process of competitive tendering or application. As with the involvement of the private sector in providing work for prisoners, standards expected of the contractors should be set high from the outset and enforced vigorously.

May we also end the quite frankly vindictive practice of making those undergoing a Community Payback punishment wear special clothing which marks them out to the passing public? Nothing, I feel, is gained by providing those carrying out this penalty with a second public humiliation in addition to their conviction which is, in most cases, a matter of public record. We should always allow even offenders to retain what may be left of their dignity.

Greater Financial Reparation

I hope that the rule of proportionality would apply in any such compensation orders. There is surely no purpose in penalising an offender beyond his ability to pay. I know, Mr Clarke, that you got into bad odour in many quarters for the Unit Fine system when you were last in charge of this area of policy, so perhaps you are alert to the dangers - if only in terms of public perception - of handing down compensation orders which are effectively unenforceable.

Victim Engagement and Restorative Justice

Whilst I believe it is correct that the victims of crime should been given every opportunity by the criminal justice system to describe the effect that the crime has had upon them, I remain troubled by the possible influence of Victim Personal Statements upon sentencing. There has always been the danger - which we have seen many times in cases in the United States which operates a similar idea - of the (often understandably) emotive nature of such statements causing the presiding judge or magistrate to pass sentences which are more severe than the facts of the case would merit in themselves. This has the potential of introducing into sentencing considerations which - if the administration of justice is to be fair to all parties - detract from the necessity of such decisions being made calmly and rationally by the sentencer.

To balance that, sentencers should be under a general requirement that they explain clearly to the victims why they have passed the sentence they have.

Regarding restorative justice, I have no disagreement with the proposals contained in the Green Paper.

2. Rehabilitation

This should be at the very heart of a system of justice in a developed, civilised society. There are two main reasons for this: at the high-end of considerations is the straightforward fact that it is the most humane approach to take - enabling and encouraging offenders to live more socially useful lives is of potentially greater benefit to the offenders and to society as a whole; secondly (and more prosaically), if successful to any marked degree it has the potential to lead to substantial decreases in criminal activity and its associated economic and social costs.

I have never been able to understand why the rehabilitative approach - if conducted with sufficient determination and rigour - should be considered a 'soft option'. As with some of the forms of restorative justice currently practised, it can be the most effective in bringing the offender face-to-face with the direct human consequences of his action. Nor do I comprehend why it should be thought of as a sort of optional extra for any well-constructed justice system, fit only to be discarded when the budgets get tight. Thorough rehabilitative effort may possibly be more resource-intensive up-front, but this should be seen as an investment in a future where recidivism may be substantially reduced as a consequence of the use of such programmes.

I would also agree that the 1974 Rehabilitation of Offenders Act needs urgent scrutiny in this context. Given the inflation in sentencing lengths which has set in in the years since the Act was first implemented, the threshold for unexpendable convictions is now far too low to be of use for those offenders who would most benefit from the intention of the Act. The Exceptions Order has - like sentences themselves - been allowed to grow beyond the level where it is a necessary safeguard in sensitive areas of the employment market to the point where it is a positive hindrance to employment, especially bearing in mind that the simple fact of a conviction - for however minor an offence - is nowadays frequently in itself an insurmountable obstacle to useful and satisfying employment and hence to reducing the likelihood of reoffending. A greater degree of flexibility in applying such restrictions - concomitant with the need to protect the public - should be enabled and encouraged.

The rehabilitation periods for expendable convictions also need urgent review for the same reasons, perhaps also with the introduction of some system whereby the offender would get, as it were, time off for good behaviour and earlier release from the requirement to declare an offence. This would have the benefit of providing a strong incentive to the offender in the crucial period immediately after the expiry of their formal sentence when the risk of reoffending is greatest.

I was unaware that some young offenders were being prevented from continuing or advancing their education due to convictions garnered whilst juveniles. I find this worrying; if a former young offender has shown sufficient determination and ability to wish to continue his education, unnecessary (and possibly irrelevant) barriers to their doing so should not be placed in their way.

3. Payment By Results

I will pass over this section with only some general comments:

I am unconvinced of the value and morality of the private sector becoming involved in these areas of public policy. It seems to me to be wrong for any private sector organisation to be given the opportunity to gain fiscally from involvement in what is one of the essential functions of the State, that is to say the disposal, treatment and management of those convicted through the public court system. There are some things which - however 'small state' you may feel yourself to be - are properly left entirely to the public sphere.

I would not object, however, to the voluntary sector being involved - as they have been for many years to some success - so long as they are given a 'level playing field' in terms of the availability of adequate resources and where a consistency of approach can be asserted.

If the involvement of the commercial sector is deemed desirable - which to you it clearly is - then, as with my comments regarding Working Prisons above, the contracts should be drafted, operated and invigilated with the highest rigour as regards compliance with the stated aims of the policy and of value for money for the taxpayer (who, after all, will be paying the private providers with the State acting as intermediary).

My other concern is that the involvement of bodies outside of the public sector may produce the penal equivalent of the famed 'postcode lottery', whereby services available for the management and support of offenders may vary widely in scope and quality between different geographical areas. There must - for all the current fad of what is termed 'localism' - be a consistent standard applied rigorously across England and Wales, and that can only be set centrally.

4. Sentencing Reform

I agree strongly that a lack of clarity regarding what a sentence - particularly one which includes a custodial element - actually entails has led to general public misunderstanding and mistrust, but I feel that it is incumbent on the responsible politicians and officials as much as on the judiciary to provide that clarity. The public pronouncements of, for example, Ministers and Secretaries of State in the relevant Departments are usually given a greater degree of coverage than remarks made by Departmental officials or by judges or magistrates.

As regards making the sentencing framework simpler, my main concern is that this seems to be somewhat at odds with your stated aim elsewhere in this section of granting sentencers a far wider discretion with regard to their decisions. The danger of 'simplifying' is that it can lead to a system where the categories of actions possible may draw into their orbit cases of far too disparate a nature. For the sake of justice, as opposed to a merely administrative approach to the law, the sentencer's decision should as far as possible reflect the individual facts and circumstances of the case and of the offender before them. A 'simplified' system can lead to an excessively 'broad-brush' approach which negates this basic element.

Similarly, although consistency in sentencing must be considered important, it is equally vital that consistency does not lead to egregiously disproportionate penalties in one direction or the other and the placing of sentencers into too tight a compliance with some centrally-set measurement.

I agree with your stated aims regarding the statutory aggravating factor for hate crimes. The current régime is over-prescriptive and subject to a degree of political manipulation. A more general factor would be the right step.

As with those not sentenced to an immediate custodial sentence, the use of Home Detention Curfew should be widened as far as possible for those nearing their Automatic Release Date, subject of course to the offender meeting the necessary criteria. This would help re-establish the offender's links with their family and neighbourhood in a controlled context and enable a more gradual transition to the licence period.

I also concur with your remarks regarding the excessive use of remand-into-custody in cases where it is not necessary for public protection. Placing someone in prison without trial where they are likely upon conviction to be given a non-custodial sentence (or, indeed, be acquitted) has the potential for causing immense damage to the life of the individual concerned, whether it be the loss of employment (and the added difficulty in having to explain to prospective employers an apparent gap in their employment record), or the possible breakdown of the individual's family and social relationships. It is something, therefore, to be used extremely sparingly and in tightly-defined contexts.

To make a more general point, we have as a society in recent times become obsessed with imprisonment as not only the first but the only valid punishment even for less serious offences. It is widely regarded as being the only sanction which is deemed to 'work' - a view made most infamously by one of your predecessors - whereas in a large proportion of cases (judging by the recidivism rates alone) it is, as another of your precursors put it, an expensive way of making a bad situation worse.

For this reason, I hold that imprisonment should be used as a last resort in all bar the most serious offences. I would describe the following general categories as those where incarceration should be used or given a high priority for use:

Unfortunately, we seem to be in a situation where imprisonment - which, as has been said already, is the most severe sanction our society permits - is used in instances where it cannot easily be warranted by the actual facts of the offence nor by the nature of the offender, simply because it is viewed as the only punishment of sufficient force, irrespective of whether there may be far more effective and productive ways of dealing with the matter.

One recent case of which you may well have been made aware by now seems to me to sum up the problem, namely that of Edward Woollard. Here was a young man who committed a stupid and reckless act, for which a firm punishment was certainly merited. Nevertheless, despite the fact that he:

Woollard was given an extraordinarily long prison sentence; at 32 months so long, in fact, that as the law stands the conviction can never be regarded as 'spent', with all that that implies as to his prospects for the remaining fifty-plus years of his life.

The practical upshot of the sentence is that this young man - a youth of good background, high educational attainment and someone actively involved in his community - instead of being able to continue his education and to continue making that positive contribution to society, is instead required to sit fruitlessly in a Young Offenders Institution until near the middle of 2012, with every aspect of his life on hold, and with the as yet unknown (but possibly guessable by anyone with any imagination) consequences of the effects of his incarceration on his attitude to society and his future prospects for education and employment upon his release.

There must, I hope you would agree, be better ways of dealing with such cases (of which there are many more than just this particular cause célèbre). As you rightly suggest, non-custodial disposals can be a far more effective way of dealing with offenders - especially first offenders - than what appears to be a standard assumption that prison should be used even for offences of low-to-moderate seriousness before any other options have been adequately considered. The default position seems all too often to be, "We have a custodial option, we have to use it".

In giving wider sentencing discretion to magistrates and judges, I do profoundly hope that they will also be required properly and seriously to consider all non-custodial options (based on the circumstances of the offence and of the offender as provided to the court) before imposing a custodial sentence. The message should go out to them as it should to the public that non-custodial sentences are not a 'soft option'; they can be every bit as challenging and punitive as prison, but with the added advantages that they prevent the danger of offenders (especially first-time ones and young people) from effectively falling permanently out of their relationship with normal society altogether, and that they require the offender to work for the benefit of the community at large in recompense. In Woollard's case, for example, a suspended sentence or curfew order supplemented by a substantial community service requirement would have met the needs of punishment, retribution and rehabilitation in roughly equal measure.

5. Youth Justice

As you correctly state, effective and early intervention in the lives of young offenders (and, indeed, those of that age group at risk of becoming offenders) is a crucial and potentially highly effective way of preventing criminal 'careers' from beginning or continuing. That is why more resources need to be put into this area even than into addressing offending by adults.

For this reason amongst others (recognition of the essential social and emotional immaturity of the people being dealt with, for example) I support the notion of far earlier and far more informal intervention by Youth Offending Teams, the Police and other involved bodies. I also believe that vigorous and positive engagement with the offender's (or potential offender's) family is vitally important, as their home circumstances will have had - and continue to have - the primary influence on their conduct.

What I have already said about the need to avoid imprisoning an offender unless it is absolutely necessary goes doubled and redoubled in the case of young offenders. It should always be used as the last resort in all but the most serious cases. For all others, a constructive and active approach to managing the offender and addressing his behaviour is far more likely to lead the young person away from the cycle of reoffending with which we have become all too familiar.

Again, this is not to say that non-custodial options should be seen as 'soft', and again it will be incumbent upon those who are responsible for policy to explain to the public what non-custodial sentences can and do involve.

Even where incarceration is deemed necessary, a positive approach is crucial to the future of the offender and to the well-being of the community into which that offender may be released upon the completion of the custodial part of his sentence. There may never be a better chance to address the offender's behaviour and work intensively on and with him to turn him to a more positive life. That is why no effort or resources should be spared in addressing the issues and the needs of the young offender. These are often people from disordered backgrounds, who may never have had much in the way of structure in their lives. They are often people with a low or distorted sense of self-esteem or self-confidence, and with a record of low or non-existent educational attainment. So long as any structure imposed upon them whilst in detention is imposed with a proper humane sensitivity and seeks to engage the offender positively, boosting their sense of self-worth, then there is a high chance of success. This should also start to reduce the damaging effects of the forms of gang culture which seem to be endemic in the system at present.

In all this, irrespective of the age of the offender or the nature of his offence, the system should at all times strive to behave in a positive and humane fashion, without the degree of tough-talking rhetoric with which we have become all too familiar. Offenders are, after all, human beings with their hopes, their fears, their failings and their virtues, and a genuine system of justice should always err on the side of encouraging the best whilst deterring the worst.

6. Working With Communities To Reduce Crime

My one serious doubt regarding your proposals in this area is with regard to the election of Police and Crime Commissioners. I am unconvinced of the merits of putting an office which should be non-partisan up for election. We can see from the United States of America, where this principle is extended to such offices as those of prosecutor, that what tends to happen is that victory goes to those who take the most populist approach, and the consequence there in terms of incarceration rates and sentence length has been catastrophic. In an era when incendiary and extreme rhetoric has come to dominate public discussion on all matters surrounding the penal system, I do not think such a step is helpful.

Certainly the leaders of local police forces need to be publicly accountable, but I believe that is still better done via the elected local authorities rather than by direct election.

I will make one more brief point on this section: when I read of your proposal to introduce so-called LEAN procedures into the management of the criminal justice system, my blood turned to ice. You see, I work in another part of the central Civil Service where LEAN (or what purported to be LEAN) was introduced some years ago. It has been an unmitigated disaster, instigating only the sort of box-ticking which in the rest of the Green Paper you say you wish to remove from the system, and encouraging the sort of piffling micro-management which seriously demotivates otherwise committed, professional staff and which has made large parts of the public sector fit only for derision. There may well be ways of improving the efficiency of the administration of the criminal justice system but, in my experience and that of many thousands of professional civil servants, LEAN isn't one of them. I would urge you to think again on this point.

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Mr Clarke, if you have read this far I salute your indefatigability. It has taken me some days to write this submission, and I'm still not sure it says all that I would wish it to say.

A properly functioning criminal justice system is essential to the life and well-being of a civilised society. Such a system has to balance the need to punish offenders, the need to protect the public and the need to provide every possibility of rehabilitation. Should the proposals in your Green Paper be implemented - especially those relating to sentencing policy and rehabilitation - we may be nearer a good, robust and above all else humane system than we have been for some little time. However, knowing the quality of public and political discourse on those subjects, I am fearful of their being diluted to such an extent that they will have little or no positive effect on a problem which has been apparent for years; namely (to return to Churchill's point), how we treat those who transgress against our laws in a way which is most effective and most positive for society in general and for the offender.

In your endeavours to address this question as outlined in Breaking The Cycle, I wish you the best of luck.

Yours sincerely,

The Judge