'rebalancing the criminal justice system' in the UK

For some time, Tony Blair and his various Home Secretaries (notably David Blunkett and Charles Clarke) have talked about 'rebalancing the criminal justice system in favour of the victim'.  

The government White Paper Justice for All published in 2002 stated that: 

Blair and his associates have pushed the idea that one of the reasons that crime remains a serious problem blighting the lives of many communities, especially in low income housing estates, is that the criminal justice system is so bogged down with safeguards to protect the accused from wrongful conviction, that it is very difficult for guilty offenders to get convicted and so the victims, the public, are not being properly protected.

On the face of it, such a criticism is absurd. It is obvious that the interests of the public are not being served if more innocent offenders are wrongfully convicted. Therefore, safeguards that ensure that only those who are actually guilty go to prison or receive other punishment is in no way against the interests of the public, of the victims of crime.

Yet on occasion, Blair seems to have taken such a naive view of the problem. Last year (2005) he was taken to task for this by a former Labour Cabinet Minister, Roy Hattersley, now in his role as newspaper columnist in the Guardian. Hattersley lambasted Blair

"Last Friday, after a contrived photo opportunity at the Beechwood Family Centre in Watford - regulation mug of tea in hand - he [Blair] described one of his aspirations for a better Britain. It was a "historic shift from a criminal justice system which asks: 'how do we protect the accused from the transgressions of the state and police?' to one whose first question is 'How do we protect the majority from the dangerous and irresponsible minority?"

"Could any grown man - with even a smattering of understanding about the real world - genuinely imagine that the criminal justice system is based on the principle that its primary purpose is the protection of suspected criminals against the law? (Guardian, 5th September 2005)"

These sentiments, outlandish as they may appear to Hattersley, sum up the sea change in attitudes to criminal justice which have taken place within New Labour and of course reflecting significant sections of police and security services as well as significant sections of the population.

Certainly under the present government, and the previous Conservative administration, there has been a good deal of 'rebalancing'. Such measures as the dilution of right to silence, attempts to impose further restrictions on jury trial, reversal of the burden of proof in criminal asset cases, the reduction in standards of proof from criminal to civil, the admission of hearsay evidence, imposition of various forms of constraint where no criminal offence has necessarily been committed -- of which the most well known examples are the Anti-Social Behaviour Order (ASBO) and the Control Orders under the recent (2005) anti-terrorist legislation.

Probably the most eloquent illustration of Blair's own thinking on criminal justice revealed in the April 23rd (2006) issue of the Observer newspaper. The paper hosted a truly remarkable email exchange between Blair and the journalist Henry Porter. In a series of articles from January to April, Porter had documented New Labour tendencies towards authoritarianism. Blair decided (he must be the first Prime Minister to have done so) to openly trade debating points with the journalist.

Porter, in one of his articles, had made the point that Anti-Social Behaviour Orders (ASBOs) under the 1998 Crime and Disorder Act and subsequent legislation were a dilution of the safeguards against innocent people ending up in prison. These orders could be granted on the basis of hearsay evidence (which Porter characterised as 'gossip and rumour') that an individual was 'likely' to cause distress. The standard of proof required was considerably lower than for a criminal conviction in the courts yet the violation of such an order was itself a criminal offence that could end up with a custodial conviction. Porter said to Blair:

"you have eroded the profoundly important principle of the presumption of innocence. To tamper with the Rule of Law is not the right way for a healthy democracy to meet the modern threats which you describe so vividly."

For Blair this was a red rag to a bull. He replied:

"You are right when you say we have disturbed the normal legal process with the anti-social behaviour laws. You are wrong when you say action is taken under them on the basis of 'gossip and rumour'.

“Please speak to the victims of this menace. They are people whose lives have been turned into a daily hell. Suppose they live next door to someone whose kids are out of control: who play their music loud until 2 am; who vilify anyone who asks them to stop; who are often into drugs or alcohol? Or visit a park where children can't play because of needles, used condoms, and hooligans hanging around.

“It is true that, in theory, each of these acts is a crime for which the police could prosecute. In practice, they don't. It would involve in each case a disproportionate amount of time, money and commitment for what would be, for any single act, a low-level sentence. Instead, they can now use an ASBO or a parenting order or other measures that attack not an offence but behaviour that causes harm and distress to people, and impose restrictions on the person doing it, breach of which would mean they go to prison. And yes, because often these thugs terrorise those who challenge them, we allow the police to give the evidence as hearsay. But the result is that where these powers are being used, the law-abiding no longer live in fear of the lawless.

“And yes, I would go further. I would widen the police powers to seize the cash of suspected drug dealers, the cars they drive round in, and require them to prove they came by them, lawfully. I would impose restrictions on those suspected of being involved in organised crime. In fact, I would generally harry, hassle and hound them until they give up or leave the country.”

Here we have, in a single outburst, the entire strategy summarised and justified. Firstly, as to whether his new measures against anti-social behaviour involve a compromise on the rights of the individual against the state, the answer is a resounding ‘yes’. He admits that the introduction of ASBOs has ‘disturbed the normal legal process’ and he thinks that 'disturbing the legal process' ought to be extended to widening police powers to seize the cash of suspected drug dealers. What is perhaps alarming is that he is calling for a widening of police powers to seize the cash of 'suspected' not actually convicted drug dealers. It would be entirely up to them to demonstrate to the authorities that their money was not the proceeds of criminal activity.

This principle of reversal of the burden of proof is already well entrenched in the Proceeds of Crime Act of 2002 (for more details see my lecture on powerful offenders and an article I published recently).

But further, Blair appears to be arguing that such measures are justified because they are much cheaper and less time consuming than due process in the criminal courts. Yes, he says, the police could arrest people for anti-social behaviour but imagine the time and cost that it would take to go to court and for what: a ‘low level sentence’. There are of course other alternatives he does not mention: court injunctions, good behaviour tenancy agreements on council housing estates and civil actions by local authorities to remove tenants who violate them. The important point about such measures is that they involve the courts and have the possibility of appeal. ASBOs involve the courts only when violated and an automatic criminal offence is committed.

A further justification he gives is that these measures work! Never mind the violations of civil liberties or due process, the law abiding no longer live in fear of the lawless. And this is the justification for widening them to include other aspects of criminality. The justification of authoritarian law on the basis that it 'works' is of course nothing new. But Blair and Clarke have evidenced an unhealthy enthusiasm for it.

The apparent attitude that civil liberties don’t really matter when the criminal justice agencies are productively deployed against crime is illustrated by another theme in the Blair-Porter exchange. In earlier articles in the Observer (22 January 2006, 16 April, 2006) Porter had observed that readers who doubt the authoritarian drift of the government

"have only to consider the 24,000 juveniles who have not been cautioned, charged or convicted with any crime, yet whose DNA has been retained by the police, to wonder if some extra-parliamentary commission should be set up to examine the state of liberty in Britain and the motives of this odious regime of sinister mediocrities. (Observer 22 January 2006)

Blair dealt with this swiftly in the April 23rd exchange

"You complain of the DNA database samples being retained. Since we allowed this, over 14,000 offences have been successfully matched to over 8,000 suspects including over 100 murders and 100 rapes - and as far as I am aware, no one is on the database for dropping litter!

Meanwhile. Charles Clarke, the then Home Secretary, echoed the same theme in a lecture he gave at the London School of Economics. He justified the fact that

"three million DNA samples are held on file (rising to four million in two years)." And thank goodness for that. In 2004/05 the detection rate rose from 26% to 40% in cases where DNA was successfully recovered from a crime scene. The DNA Database now holds the majority of the known active offender population and is a powerful tool." (Guardian 24th April)

The attitude seems to be that if the police DNA database holds most of the the ‘known active offender population’ who gives a toss who else it holds. Besides, if you’re on the DNA database you must be guilty of something!  These sentiments coming from a Prime Minister and a Home Secretary are quite alarming. There is not even a hint of embarrassment that civil liberties are being 'reluctantly' compromised and that people charged with no criminal offence are included on police records, yet alone have their details retained if they have been charged but acquitted.

Blair and Clarke are the very people from whom, in a liberal democracy, we would traditionally expect measured and cautious responses to complex issues. But here they are, firing off like a couple of street corner populist orators.

In more recent utterances, Blair has modified his tone somewhat from the outbursts described above. Recently (23rd June 2006) he reiterated his views on 'rebalancing' the criminal justice system in a speech at the University of Bristol. He called for a 'complete change of mindset' regarding criminal justice. Although crime has fallen in recent years he claimed that the public were concerned because "they think they play fair by the rules and they see too many people who don't, getting away with it." His speech contained few proposals for new legislation but he did say that intervention to tackle "likely offenders" in socially excluded groups or dysfunctional families could begin much earlier. He said "In truth we can identify such families virtually as their children are born... " (Guardian 24 June 2006).  

Did Blair see the film Minority Report?