There’s an old joke: What’s the difference between a good lawyer and a bad lawyer? A bad lawyer will drag your case out for months. But a good one can make it last years.
Granted, it’s not an especially funny one, but it does give an insight into the way our justice system is sometimes viewed. It’s not always an unfair impression: the criminal justice system, for instance, runs according to a pretty relaxed timetable. Most lawyers, police, prosecutors and members of the judiciary do an incredible job in often trying circumstances. But the system they operate in is too often inexcusably inefficient and invariably slow. It took the riots of 2011 to demonstrate that justice could, when pace was a clear priority, be dispensed much more quickly – with thousands of miscreants arrested, charged and sentenced all within weeks.
Why does speed matter? Surely the principle should be that justice is done in the individual case, no matter how many hearings, adjournments, delays, stops or starts are needed? Of course, where defendants contest the charges and the matter of guilt is in question, it’s critical that the facts are exhaustively aired, explored and scrutinised. But what about the majority of cases, in which the offender pleads guilty at some point before the first hearing?
These cases often take place in the magistrates’ court, where over 90% of criminal cases are heard. But incredibly, even here, there is a two month delay between the time an offender is charged and the time he/she is sentenced. During that time, nothing much happens, save for a few hours of additional police time spent processing the case. There is no good reason for our criminal justice system to operate in such a leisurely manner.
Last week Policy Exchange published a new report, Future Courts, in which we set out a vision for reforms that would revolutionise the way we deal with lower-level crime. Part of our motivation for the report was to encourage a discussion about how to gear the criminal justice system to actively change the behaviour of those who come into it – with speed a key concern.
Behavioural psychology suggests that for a sanction to be formally classed as a punishment, it must actually change behaviour and stop the perpetrator from doing it again. According to literature about the use of punishments, if bad behaviour isn’t deterred and goes on to be repeated, sanctions stop being “punishments” at all – in fact, they actually become positive reinforcements.
When it comes to crime, we see this all too often. The police can’t be everywhere at once, so the proportion of crimes that result in a criminal conviction and sentence is already inevitably low. But even if a habitual criminal is caught once in a while, it’s likely that, for many, the arrest, court appearance and punishment that follow will be treated as a mere occupational hazard – the price of doing business, not something that will decisively halt the pattern of offending.
The government is, commendably, taking steps to address repeat offending, including by outsourcing the rehabilitation of offenders to the private and voluntary sector, through a payment-by-results mechanism. This will sharpen the incentives to provide quality services, but the basic system providers will operate in will be the same one. Wouldn’t it be better if we had a system that was actually designed to change criminals’ behaviour? What would such a system look like?
First, it would be fast. The longer the delay between the time of an offence and the time a punishment is handed down and implemented, the less effective it will be. This is borne out by the evidence, but it’s also just common sense: parents would never think to scold or punish a child at some random point weeks or months after misbehaviour. Instead of waiting two months before passing sentence in the magistrates’ court, why not bring those few hours’ of police time forward and sentence the offender on the same day as they’re charged? So our report recommends locating magistrates in police custody suites to hear cases on the spot – and to bring new judicial oversight to the use of out-of-court disposals such as cautions, about which there has been legitimate public concern.
Secondly, a reformed system would see punishments being more certain. Prolific offenders can commit hundreds of offences every year, but may only be caught and prosecuted for a small number. More certain punishment means making sure that the likelihood of detection of crime is much greater, including by using new GPS satellite tracking of prolific offenders and overlaying their movements against real-time crime data.
More certain punishment also means taking a new approach to regulating the behaviour of persistent criminals, including by implementing a range of swift, consistent and modest sanctions in response to every infraction or failure to cooperate with the authorities. These next-generation offender management schemes would provide far more intensive supervision of offenders and are proven to be able to control the vast bulk of crime. Policy Exchange is currently examining the international proliferation of these radical programmes and exploring how we could embed them in England and Wales.
Thirdly, a new system would be problem-solving. So as well as punishing much more effectively, it would seek to reform offenders by ensuring proper access to drug and alcohol treatment, employability schemes and housing support. That means taking a much more joined-up approach across government so that resources are available for rehabilitation, but it also means incentivising providers of services to base themselves at courts and provide wraparound support. We think the best way to do this is through new financial incentives for agencies, linked to the government’s plans to outsource probation services. These would drive the kind of new court innovation and specialist, problem-solving approach we need if we’re to reduce the high demand for criminal justice services.
Taken together, measures like these could provide a game-changing approach to cutting volume crime, and offer a better service for victims and taxpayers at the same time. Crucially, for Ministers, they would also offer a simple, explicable and well-balanced message about crime reduction. When you think about it, it’s little wonder that politicians have failed to take any real credit for the crime reduction achievements of the last twenty years. Successive governments have often oscillated between a ‘soft’ approach (implying that chucking more rehabilitative services at offenders will mean they’ll magically stop offending) and a ‘tough on criminals’ attitude, which has often been more about sending a signal to the tabloids than doing what is effective.
That’s why we believe it’s time for a new ‘smart on crime’ agenda – an agenda that relentlessly prioritises public safety, delivers much swifter, more certain justice and above all, one that is more intelligent and ambitious about changing criminals’ behaviour.