Cavadino-Introdution.qxd 8/3/2007 5:33 PM Page 1 Introduction I.1 The Criminal Justice System I.2 Strategies for Criminal Justice and the Penal Crisis I.3 A Note on Terminology: System This book is about the penal system the system that exists to deal with people who have (usually) 1 been convicted of a criminal offence: the system that delivers official punishment for those who have broken the law. 2 More precisely, we are centrally concerned with the English penal system, by which we mean the system in England and Wales (Scotland and Northern Ireland have separate systems). However, much of what we say (especially about penal philosophy and penal sociology in Chapters 2 and 3) is of relevance to more than one country; and at times we will be referring to other penal systems to help illuminate the English (and Welsh) experience. 3 While we have tried to be factually correct, to outline differing viewpoints and to be as comprehensive as is possible in a book of this size, we have not felt any need to be shy about expressing our own opinions. In a nutshell, these are that the English penal system is unjustly and irrationally harsh, and that our penal practices and attitudes towards punishment require radical revision. The Criminal Justice System penal system is part of a larger entity known as the criminal justice system, a term covering all those institutions that respond officially to the I.1The commission of offences, notably the police, prosecution authorities and courts. It is often misleading or unsatisfactory to examine the penal system in isolation from the larger criminal justice system. Consequently at times in this book for example in Chapters 9 and 10 we deal with the criminal justice system as a whole. There now follows a very brief and basic guide to the criminal justice system as a whole, to assist readers who may not be familiar with the system or its terminology. Figure I.1 is a simplified diagram of the criminal justice system up to the point where an offender is sentenced by a court, which is the moment when the offender enters the penal system.
Cavadino-Introdution.qxd 8/3/2007 5:33 PM Page 2 2 THE PENAL SYSTEM No further action (NFA) Police Magistrates Court Caution or reprimand warning Crown Prosecution Service Discontinuance of proceedings (Prosecution) Magistrates Court (Committal for trial) Magistrates Trial Crown Court Trial (Not guilty) Verdict Verdict (Not guilty) (Guilty) (Committal for sentence) (Guilty) Sentence (Pre-sentence report) Sentence Figure I.1 of sentence The criminal justice system in England and Wales, up to the point In many cases when a crime is committed indeed, in most cases the agencies of criminal justice never respond at all. For the criminal justice process normally starts to operate only when a crime is reported to the police, and fewer than half of all crimes are reported. In 2004/5 only 43 per cent of all the crimes uncovered by the official British Crime Survey were reported to the police, and only 32 per cent were officially recorded as crimes by the police (Nicholas et al., 2005: 36). If an alleged offence is reported, or otherwise comes to the attention of the police, the police may then investigate it. The police have a wide range of powers (notably those contained in the Police and Criminal Evidence Act 1984) to carry out
Cavadino-Introdution.qxd 8/3/2007 5:33 PM Page 3 INTRODUCTION 3 searches and to arrest and question suspects in pursuit of their investigations. If there appears to be sufficient evidence to put a suspect on trial, the police may charge an arrested suspect with the offence. This is the first stage in the prosecution process, and it is now the Crown Prosecution Service (CPS) a state agency independent of the police who instruct the police as to whether suspects should be charged in most cases. 4 The police then normally take the suspect before the local magistrates court, where the prosecution is conducted by the CPS. An alternative procedure (used for about two-thirds of all prosecutions) is at present known as the summons. Under this procedure the police apply to a magistrate for a summons, which is an order to attend court, but the suspect remains at liberty for the time being. (Under provisions of the Criminal Justice Act 2003 which have not yet been implemented, the existing charge and summons will be replaced by a single procedure known as a written charge, which can be made by either the police or the CPS.) Another possible alternative 5 is to dispense with prosecution entirely and for the police instead to administer an official warning. In the case of an offender of 18 or over, this is known as a caution. A caution should not be given unless the offender admits guilt. No formal punishment ensues, but the caution will form part of the offender s official criminal record. A variant is a conditional caution, where the caution is accompanied by specific conditions which the offender must comply with. 6 Young offenders under 18 receive not cautions but reprimands and warnings (also known as final warnings ), which are explained more fully in Chapter 9. In 2005, 38 per cent of known offenders 7 were diverted from court by being cautioned, reprimanded or warned rather than prosecuted. Yet another possibility, of increasing importance, is a fixed penalty notice (or spot fine ), which can be imposed by police officers and certain other specified officials for a widening variety of minor offences. 8 When the alleged offender reaches the magistrates court (and becomes a defendant ), the court may have to decide whether to grant the defendant bail (conditional release prior to the actual trial) or whether the defendant should be remanded in custody for the time being. (See further Chapter 4, section 4.2.) Custodial remands are usually to prison, or to a remand centre (a type of prison reserved for remandees). 9 Criminal offences fall into three categories: indictable only, summary only, and triable either way. 10 This categorization determines at which court magistrates court or Crown Court the trial will be held. Offences which are indictable only (for example, murder, rape and robbery) must be tried at the Crown Court before a judge, with a jury of 12 randomly selected lay people to decide on the verdict if the defendant pleads not guilty. In these cases the magistrates court sends the case to the Crown Court for trial on indictment. Offences that are summary only (for example, common assault, minor criminal damage and most motoring offences) must be tried summarily at the magistrates court before at least two and normally three lay justices of the peace or a single district judge (a professional judge, formerly known as a stipendiary magistrate ). Offences that are triable either way include theft, arson and most burglaries. If a defendant charged with one of these
Cavadino-Introdution.qxd 8/3/2007 5:33 PM Page 4 4 THE PENAL SYSTEM offences pleads guilty, the case will stay in the magistrates court at least for the time being. 11 But if the defendant pleads not guilty, the magistrates then decide whether to commit the defendant to be tried in the Crown Court trial or whether the case may be tried in the magistrates court. A defendant who intends to plead not guilty has the right to insist on a Crown Court trial for an offence which is triable either way. In practice the great majority of triable either way offences are dealt with in the magistrates court. (For more on mode of trial, see Chapter 4, section 4.3.) Defendants have the choice of pleading either guilty or not guilty in either the magistrates court or the Crown Court. If the plea is not guilty, the burden rests on the prosecution to prove to the magistrates or jury that the defendant is guilty beyond reasonable doubt. But the great majority of defendants plead guilty: around 90 per cent in the magistrates court and over 60 per cent at the Crown Court. If the defendant pleads guilty or is found guilty (in other words, is convicted of the offence), the magistrates or judge then pass sentence. The sentence is the punishment (or other order of the court) which is imposed upon the defendant as a consequence of committing the crime. A few offences have mandatory or semi-mandatory penalties attached, as explained in Chapter 4. Most offences, however, have a statutory maximum penalty for example, seven years imprisonment for theft but no statutory minimum. The magistrates court also has statutory limits on its sentencing powers: it cannot sentence an offender to more than six months in prison for a single offence or to more than 12 months in total, nor can it normally impose a fine of more than 5,000. (These maxima will be increased to 12 months and 65 weeks when sections 154 5 of the Criminal Justice Act 2003 are brought into force.) However, a magistrates court can commit an offender it has convicted to the Crown Court for sentence if it feels that its sentencing powers are inadequate. As long as the statutory maxima are not exceeded, the court usually has a wide range of sentences to choose from. These include the custodial sentences of imprisonment (for adults), detention in a young offender institution (at present, for offenders aged 18 to 20) and detention and training orders (for young offenders under 18). Non-custodial penalties (to which we devote Chapter 5) include suspended prison sentences, fines, community orders (including what used to be known as probation and community service orders 12 ), and absolute and conditional discharges. The court may be assisted in its choice of sentence by a pre-sentence report (PSR), usually prepared by a probation officer (or, in the case of juvenile offenders, by a member of the youth offending team: see Chapter 9). Pre-sentence reports provide the sentencer with information about the offender s behaviour and social and family background, and normally include a proposal for what the sentence should be. Convicted defendants may appeal to a higher court either against their conviction or against the sentence which has been passed, or both. The Attorney General (a government law officer who is both a member of the government and its chief legal adviser) additionally has the power to refer certain sentences passed by the Crown Court to the Court of Appeal on the grounds that they are too lenient (see Chapter 4 for details).
Cavadino-Introdution.qxd 8/3/2007 5:33 PM Page 5 INTRODUCTION 5 A sentence of imprisonment means that the offender is allocated to a prison by the Prison Service. (We examine prisons and imprisonment in Chapters 6 and 7.) Under present arrangements, prisoners do not usually serve the full term of the sentence pronounced by the court. For example, an offender sentenced to two years imprisonment will normally be released after one year, and at the discretion of the prison authorities may be released up to four and a half months earlier still under a home detention curfew. Shorter-term prisoners are released automatically at a certain point of their sentence, but for longer-term prisoners and for those who it is considered may pose a special risk, early release may be at the discretion of the Parole Board. For most prisoners, early release is combined with compulsory supervision by a probation officer in the community, and released prisoners can under certain circumstances be returned to prison to serve the unexpired portion of the sentence. Early release under the home detention curfew scheme involves both supervision and a home curfew enforced by electronic monitoring or tagging of the offender. (For fuller details of the system of early release from prison sentences, see Chapter 8.) Non-custodial sentences (see Chapter 5) usually require the offender to carry out some action, such as pay a fine or compensation or perform unpaid work (community service). Alternatively, the offender may be required to refrain from acting in certain ways, in particular to avoid reoffending within a given time limit (for example, if the sentence is a conditional discharge or a suspended sentence). Offenders who breach the terms of their sentences either by disobeying their requirements or by reoffending can be brought back to court as a result, and the court will then have a range of sanctions available. These sanctions often include the power to pass custodial sentences, which may be additional (or consecutive ) to any custodial sentence imposed for a fresh offence. Punishment in both prison and in the community is administered by NOMS (the National Offender Management Service). NOMS, which combines the Prison and Probation Services, was created in 2004 in response to a recommendation in the Carter Report (2003). Its first Chief Executive (2004 5) was Martin Narey, previously Director General of the Prison Service. The Chief Executive of NOMS is (from May 2007) 13 answerable to the Secretary of State for Justice. Importantly, the whole of the criminal justice system is subject to the provisions of the Human Rights Act 1998, which incorporates the European Convention on Human Rights into English law. Before the Human Rights Act, the United Kingdom government was bound by treaty to respect and defend the human rights set out in the Convention such as the rights to life, liberty, security, respect for private and family life, freedoms of thought and expression and the right not to be subject to inhuman or degrading treatment but the Convention was not directly binding in domestic law. Those who considered that their human rights had been violated could only gain redress by the long drawn-out procedure of petitioning the European Court of Human Rights in Strasbourg. If the Court found that UK law was incompatible with the Convention, a duty lay on the government to introduce legislation through Parliament to rectify domestic law. (This arrangement sometimes had important effects on English penal law, for example in altering arrangements
Cavadino-Introdution.qxd 8/3/2007 5:33 PM Page 6 6 THE PENAL SYSTEM for early release see Chapter 8.) Under the 1998 Act, all public bodies including criminal justice agencies such as the police and NOMS are under a legal duty to act in accordance with the Convention. Furthermore, English courts are bound where possible to interpret English Acts of Parliament so that they are compatible with the Convention. If the court decides that English law is unequivocally incompatible with the Convention, it must make a formal declaration to this effect; the government then has the power to fast-track legislation through Parliament to remove the incompatibility. Strategies for Criminal Justice and the Penal Crisis book is largely concerned with the crisis in the English penal system and the policies which governments have developed in response to I.2This this crisis. We introduce the penal crisis in general terms in Chapter 1. In Chapter 11 we provide a history of the strategies adopted by national governments up to the present day, but a brief summary is appropriate here to set the scene. We find it helpful to use a general, threefold categorization of criminal justice policies which we call Strategies A, B and C (based on Rutherford, 1993; see also Cavadino et al., 1999). Strategy A is a highly punitive approach embodying what we call law and order ideology (see Chapter 1): the attitude that offenders should be dealt with as severely as possible. A governmental strategy based on this attitude would involve making criminal justice harsher and more punitive at every stage and in every respect. Strategy A embodies an exclusionary approach to offenders, tending to reject them as members of the community (see Cavadino et al., 1999: 48 50). The managerialist Strategy B seeks to apply administrative and bureaucratic mechanisms to criminal justice in an attempt to make the system as smoothrunning and cost-effective as possible. Strategy C seeks to protect and uphold the human rights of offenders, victims and potential victims of crime. It seeks to minimize punishment and to ensure fairness and humane treatment within the criminal justice system, and is inclusive, seeking to maintain offenders within the community and reintegrate them as law-abiding citizens. Proponents of Strategy C are not all of one mind: some favour measures to rehabilitate and reform offenders, while others advocate restorative justice measures that seek to ensure that offenders perform reparation to their victims and to the community (see Chapters 2, 5 and 9). Others again, while still being motivated by humanitarianism and a wish to lessen the harshness of punishment in general, propound the view that offenders should be punished in proportion to the seriousness of their offences, according to their just deserts (see Chapter 2). In the early 1980s, the Conservative government of Margaret Thatcher injected a heavy dose of Strategy A into penal policy. This meant being deliberately harsher in punishing offenders (although as we shall see, especially in Chapters 9 and 11, this was by no means entirely the case across the board). From around 1987 onwards, however a period we refer to as the Hurd era, after Home Secretary Douglas Hurd (1985 89) the Thatcher government s penal policy became less
Cavadino-Introdution.qxd 8/3/2007 5:33 PM Page 7 INTRODUCTION 7 dogmatic and more pragmatic, although still tinged with punitive law and order rhetoric. The centrepiece of this new strategy was the Criminal Justice Act 1991, which represented the most radical legislative reform to the penal system since the Second World War. This Act combined elements of all three strategies, but importantly it was hoped that it would reduce the prison population and make it more easily manageable (a Strategy B aim). The idea was that more offenders than hitherto should undergo punishment in the community rather than being sent to prison; additionally, most offenders (with some significant exceptions) were to receive punishments that were in proportion to the seriousness of the crime ( just deserts ). However, within months of the Act s implementation in 1992, the Conservative government (now headed by Mrs Thatcher s successor, John Major) had abandoned the strategy embodied by the Act. From 1993 to 1997, in a development we call the law and order counter-reformation, the Conservative government especially in the person of Michael Howard, Home Secretary from 1993 to 1997 pursued ever harsher Strategy A policies, marked by Mr Howard s famous declaration to the Conservative Party Conference in October 1993 that prison works. Thus did we enter a phase which has been termed the new punitiveness (Pratt et al., 2005; see also Chapter 3, section 3.6). Following their victory in the General Election of 1997, the New Labour government of Tony Blair and his Home Secretaries Jack Straw (1997 2001), David Blunkett (2001 4), Charles Clarke (2004 6) and John Reid (2006 07) sought to implement its famous campaign promise to be tough on crime and tough on the causes of crime by pursuing a mixture of policies with elements of all three Strategies A, B and C. This has included introducing some new measures based on restorative justice (see especially Chapter 9) in line with one version of Strategy C and an emphasis on assessing the effectiveness and cost-effectiveness of penal measures (which fits with the managerialism of Strategy B). Strategy A was also well represented in the New Labour policy mix, as the government favoured the increased use of imprisonment for persistent offenders and pursued policies of zero tolerance (see Cavadino et al., 1999: 28 30) towards various categories of wrongdoing. (A term we will be employing for this hybrid approach especially in Chapter 9, where it is more fully explained is neo-correctionalism.) The most important recent developments the Criminal Justice Act of 2003 and the Carter Report (2003) will be explained and discussed in the chapters that follow. Chapter 1 introduces the penal crisis, and we then go on to discuss facets of this crisis and the responses to it throughout this book. Chapters 2 and 3 are heavily theoretical, but unashamedly so, for they are also intimately connected to the crisis theme. Chapter 3 s exploration of penal sociology underpins our analysis of how the crisis should be explained, while our investigation of the philosophy of punishment in Chapter 2 should contribute to an understanding of why the penal system suffers from its crucial crisis of legitimacy. Chapters 4 to 10 deal with various aspects of the system and its crisis. Chapter 4 identifies the decisions of courts in particular their sentencing decisions, but also their actions in relation to bail and mode of trial as the crux of the crisis. Chapter 6 investigates the troubled prison system, while Chapters 5, 7 and 8 deal with three developments which have so far
Cavadino-Introdution.qxd 8/3/2007 5:33 PM Page 8 8 THE PENAL SYSTEM had less than total success in relieving pressure on the system: the proliferation of non-custodial penalties, the policy of privatization, and the mechanisms for early release of prisoners. Chapter 9 examines the parallel system of youth justice, equally prone to its own parallel crisis or system disaster, and for similar reasons. Chapter 10 investigates the burning issue of bias within the criminal justice system. Finally, in Chapter 11 we discuss whether the crisis is likely to be solved, and put forward our own agenda for change. A Note on Terminology: System the title of this book is misleading. Arguably, one of the salient features of the English penal and criminal justice systems at least until I.3Perhaps recently has been their highly unsystematic nature. For many years a number of disparate relatively autonomous agencies have worked in relative isolation from each other, exercising wide and unaccountable discretionary powers, and subject to no overall coordination or strategic control (or joined-up thinking, to use a New Labour phrase). Some writers have even described criminal justice as a non-system. Whether that description is still an accurate one is one of the issues we will be considering in the light of recent attempts at reform: see in particular Chapters 4, 5 and 9). In any event, we do have penal and criminal justice systems in the sense that they are composed of different agencies which are interdependent: their activities intimately affect each other and they need to be studied within this context of interdependency (see, for example, Feeney, 1985). We see this kind of systems analysis as an important tool in understanding the penal system and attempting to bring about positive modifications (this is a particular theme of Chapter 9). Notes 1 There is one very important exception to this. The prison system part of the penal system houses many remand prisoners, who accounted for 17 per cent of the total prison population on 31 October 2006. Most of these are prisoners who have been remanded in custody while awaiting trial; a minority have already been convicted and are awaiting sentence. We say more about remand in Chapter 4, section 4.2. 2 We use the term punishment to mean any measure that is imposed on an offender in response to an offence, whether or not it is intended to be punitive. See further Chapter 2, note 1. 3 The subject of comparative penology is explored more fully in Cavadino and Dignan (2006). 4 A policy announced in the White Paper Justice for All (Home Office et al., 2002: 3.31). 5 In addition, it is possible for police officers and certain other specified officials to issue fixed penalty notices ( spot fines ) for a variety of minor offences. 6 Introduced on a statutory basis by the Criminal Justice Act 2003 (ss. 22 27; in force from April 2004). It is the responsibility of the CPS to decide if a conditional caution is
Cavadino-Introdution.qxd 8/3/2007 5:33 PM Page 9 INTRODUCTION 9 appropriate, but they are administered by the police. The offender must agree to the conditional caution. Section 17 of the Police and Justice Act 2006 (not yet in force) provides that the caution may come with a condition that the offender pay a financial penalty of up to 250 for a range of offences yet to be specified. 7 I.e. all those who receive a conviction, caution, reprimand or warning for an indictable only or triable either way offence (see paragraph after next and note 10 below). 8 Fixed penalty notices (FPNs, currently of up to 80) were introduced by the Criminal Justice and Police Act 2001 and extended nationally in 2004. They can be used for a number of minor offences, notably relating to anti-social behaviour in public, but now also including shoplifting up to the value of 200. People issued with FPNs can choose to pay the penalty, or if they contest their guilt they may be prosecuted in the magistrates court in the traditional manner. 9 Remand prisoners may also be held in cells in police stations because of prison overcrowding. This was common for many years until 1995, when the practice was discontinued. However, it was revived from July to November 2002, in October 2005, and then again in October 2006. Police cells were still being used in this way at the time of writing. 10 Unless otherwise stated, statistics for offences and offenders which we present in this book normally relate to indictable offences, i.e. offences that are either indictable only or triable either way. 11 As we shall see, however, it is still possible for the defendant to be committed to the Crown Court for sentence. See further Chapter 4, section 4.3. 12 Under the Criminal Justice Act 2003, courts may now pass community orders which may contain requirements to be supervised by a probation officer, to carry out unpaid work to benefit the community and/or a wide variety of other requirements (including curfews enforced by electronic tagging: see Chapter 5). 13 The Ministry of Justice was created in May 2007. Its responsibilities include NOMS, criminal justice reform, youth justice and sentencing policy (all previously dealt with by the Home Office), together with the courts and legal system generally. The Home Office remains responsible for crime, policing, security, anti-terrorism and policy on drugs and anti-social behaviour. See further Chapter 4, section 4.1.