If it is one thing that the Government is eager to keep in the latest fads and fashions, it is the criminal justice system. In fact, it seems like only yesterday that the last round of changes came in under the Police and Justice Act. You could be forgiven for that nagging feeling as it was only last week. The very morning after, the Serious Crime Bill was published as it went for an initial House of Lords reading. With another, so far unpublished, Criminal Justice Bill due in the spring, the government really is spoiling us. Confused? The Association of Chief Police Officers (ACPO) certainly are as they are still talking about a ‘Serious and Organisated Crime Bill’ [sic] in their press release (via Samizdata), yet this went through Parliament in 2005!
The 2007 justice season has a hint of the retro about it too with the government returning to ASBO territory. It would seem the unmitigated success of this strategy in tackling anti-social behaviour means that the natural move is to repeat the method for more serious criminals. The new bill will (among other changes) allow judges to impose Serious Crime Prevention Orders on people that they suspect of being ‘involved in serious crime’. Note that the test is neither to have been convicted of a crime, nor convicted of incitement to a crime, nor even to be suspected of doing any of those things. The broader test includes someone who ‘has conducted himself in a way that was likely to facilitate the commission by himself or another person of a serious offence in England and Wales (whether or not such an offence was committed)’. So someone may become eligible for such an order on the basis of an unintentional action that contributed to a crime that was never actually committed.
These orders will generate a crime personalised to a specific individual. So the ‘crime’ might become walking through a specific shopping centre or talking to a particular person or, even more worryingly, accessing your email account. Your business could also be shut down and your assets frozen. And this is while you are untried in a court of law, and therefore innocent. Breaking these orders, however, will constitute a serious offence, the result being up to 5 years in prison!
Spun as a way of inhibiting the ‘Mr Bigs’ of the crime world who manage to stop ordinary criminal charges sticking (although there is no limitation to such individuals as the Telegraph explains), these sort of tactics previously used ineffectively to break up gangs of school children are unlikely to intimidate Tony Soprano for very long. However, more than likely they will succeed in striking fear into law-abiding citizens who might well worry that they could be caught up in this uncontrolled bureaucratic mess that cannot even be restrained by juries.
It does not seem to be exactly what the criminal justice system needs either. There is no shortage of criminals (even convicted criminals!) before we allow this new form of personalised justice that could make a criminal of someone for being found in the wrong neighbourhood. The problem is not so much crime prevention as a lack of punishment and deterrence in the criminal justice system. To deal with this the government would need more prisons and longer sentences. The idea that more convicted criminals being sent into prison for longer represents a social policy failure has been so ingrained into the political psyche that any conceivable alternative, regardless of its effectiveness or consequences for civil liberties, is served up as legislation. The government would prefer to have ID cards, central databases, ASBOs, CRB checks and control orders than provide the simple solution of locking criminals up, when they have been properly convicted, for longer.
The source of this animosity towards treating criminals as criminals and otherwise protecting the liberties of law-abiding citizens is the rather nebulous conception of ‘social justice’ that deliberately blurs the line between the law-abiding and the criminal. It is a view that attempts a more subtle position on crime by trying to understand its underlying social and economic causes thus abhors the theory that justice should deliver punishment to those that have broken the law, and deterrence to those that might otherwise consider it. Instead, criminals are seen as victims of discrimination or lack of opportunity and so commit acts that anyone might reasonably expect. The answer to criminality is then presented as delivering safer, happier and more equal communities. Crime is considered a problem for the whole community, and not the responsibility of the individual.
In this respect, social justice destroys its own objectives since a very bad way to create safer communities is to let crime go unpunished. If deprived communities see the same people that torment them turning up again and again on their streets despite their multiple court appearances and convictions, then they will witness an ineffective criminal justice system that fails to protect them and refuses to punish the bad amongst them. The youth gain a surplus of criminal role models to idolize and a vicious circle develops. By contrast, a virtuous circle tends to develop when criminals are punished as not only do people see justice being done, their communities become safer and the incentive towards criminality disappears.
As a consequence of letting the real criminals out of prison early or failing to punish them at all when successfully convicted, it appears we must all now be treated as potential criminals and subject to swathes of new, and quite frankly, ridiculous ‘criminal justice’ law. The choice we have seems to be between more prisons or a much larger open prison: one that extends round the whole of the UK.
By Nick Cowen