BOOKS
Not the best policy
Richard Stern
IN THE NAME OF THE LAW: THE COLLAPSE OF CRIMINAL JUSTICE by David Rose Cape, £17.99, pp. 356 The criminal justice system, as filtered to us through the national Press, resembles the candles and icing without the cake. The cases reported are scooped from the Crown, High and Appeal courts — yet less than five per cent of criminal prosecutions ever reach the higher courts. The daytime burglary of your empty house, the theft of your car stereo (or your car), the snatch of your handbag through the car window, the blows you received when calling drunken yobs to order, the theft of goods from your shop — none of these crimes may ever reach a Crown Court. Ninety seven per cent of criminal prosecutions are resolved in the local magistrates' courts, by pleas of guilt, by trial or by discontinuance. Judge, jury and wigged barristers, the staples of television drama, are missing.
David Rose's In the Name of the Law does little to rectify this optical illusion. The Observer's Home Affairs correspon- dent is consistently drawn by the prominent stories he and his fellow-reporters have written up over the years: police corruption (including 'noble cause corruption'), long- standing prison sentences overturned on appeal, racist street-murders unsolved, the repeatedly acquitted rapist, the 'provoca- tion' defence in domestic murder, and seemingly watertight prosecutions thrown out by juries who refuse on principle to believe the police and blow kisses to the grinning villains.
Yet few concerned citizens of Neigh- bourhood Watch, or the pensioners cower- ing behind locked doors on housing estates, will ever be personally affected by the thril- lerish underworld of 'Organised Crime' described by Rose, the domain of Deep Cover informers, of money-value 000's stretching to the end of the line, the world of counterfeiters, fake charges, supergrasses, entrapment, swoops, huge hauls, or disgraceful deals involving the Attorney General and God.
Central to Rose's claim that criminal justice has 'collapsed' are the statistics. While crime has been on the increase, the number of convictions has fallen sharply, from 2.2 million in 1983 to 1.4 million in 1993. From 1980 to 1993 convictions and cautions for robbery rose from 3,600 to 5,800, yet cases of robbery reported to the police jumped from 15,800 to 57,845. In short, we are now nailing only one robbery in ten. A similarly dismal picture applies to vehicle theft and general theft. We are not bringing offenders to justice. Why? There are too many of them. Rose is right to insist on the linkage of crime and moral decline with economic decay. Look at what has happened to the once-proud, self-policing Yorkshire and Welsh mining villages since the pits were closed and the miners thrown on the scrap-heap. As for the 'family', Rose may be too glib when he insists that 'the collapse of the traditional family and the collapse of the traditional economy are conterminous . . . ' but he is glib in a plausible direction. And if the market rules, OK?, the lads are not slow to spot the only market available to them: crime. A ruling morality which gallops from stock exchange profits to the neigh- bouring cathedral prophets, is, as they say, `asking for it'.
Crimes cannot be punished, or criminals deterred, unless detected. The famous `clear-up rate' is therefore the prime factor. Rose quotes Lord Chief Justice Taylor's famous riposte to Michael Howard's unstoppable posturing: draconian sen- tences do little to deter if the clear-up rate `It's a herd of wildlife camera crews.' remains low. The chances of getting `nicked' or 'pinched' must be the first con- sideration in the mind of the potential criminal unless, as is increasingly the case, he is driven by drug or alcohol addiction to discard all rational calculations.
Having established that a failure of crime detection is the root of problem, David Rose has scores to settle with the Crown Prosecution Service. The CPS enjoys few fans. Prosecutors vary alarmingly in compe- tence. Some mumble into their notes, some leave out elementary 'facts', and some speak in elusively Equatorial versions of English. David Rose believes that the CPS is cost-driven to discontinue too many cases, before or after they reach the courts. The CPS's own criterion for pursuing a case, a 'realistic' chance of conviction, is turning into an insistence on watertight certainty. In 1994 the CPS discontinued 11 per cent of prosecutions. Is this excessive?
The evaporation of key witnesses is an obvious factor, not only in the brutal underworld of the syndicates, the drug barons, but also in cases of domestic violence where the victim and the offender may still be living together. Mob crime on the more hellish housing estates is invariably accompanied by systematic intimidation of witnesses. Where unemployment reigns and gangs of young bastards rule, anyone who 'grasses' is for it, let alone anyone brave enough to give evidence in court. Policemen are followed home, their families threatened, arson regularly practised.
Rose's other allegation against the CPS is perhaps stronger. Is the CPS systemati- cally downgrading charges — for example, from grievous bodily harm (indictable only) to actual bodily harm (an 'either way' offence) to common assault (a summary offence)? There are two obvious motives for downgrading. A charge of handling stolen goods will stick whereas the robbery charge (though you know he did it) lacks independent witnesses or failed at the identification parade. Secondly — and this is Rose's main thrust — by downgrading the charge, and thus keeping it in the magistrates' courts, the CPS can reduce its costs from (on average) £600 to £80. If this is indeed CPS covert policy, it is lamentable.
But here emerges a quirk in the system. In the case of an 'either way' offence, not only the magistrates but also the defen- dant, if he be an adult, can opt for a Crown Court trial-by-jury. Should he be allowed to do so? More than a half and perhaps two thirds of defendants who have elected Crown Court trial plead Guilty at one minute to midnight when their lawyer advises them that the prosecution has its witnesses in place. There is more than a strong suspicion that experienced practi- tioners of crime are merely playing for time in the hope that the prosecution will lose the file or its witnesses will go on holiday or take fright. This is the main reason why the pipeline is clogged to bursting point and trial dates have to be set months in advance.
Rose seems to regard real tough justice as confined to the Crown Courts. Yet mag- istrates, on Rose's own figures, send more than 20,000 people to prison every year. Substantial areas of the criminal justice sys- tem go unexamined. Despite the current wave of juvenile crime, he barely glances at the performance and powers of the Youth Courts. What to do with 'Rat Boy' who reg- ularly devastates the High Street but is too young for custody? The Probation Service and the Youth Justice teams remain invisi- ble. What is a pre-sentence report (PSR)? This is not the book for finding out. And what about sentencing policy?
Rose quotes John Major's 'extraordinary' comment, in February 1993: 'I feel strongly that society needs to condemn a little more and understand a little less': But surely Major's use of the word 'understand' was sardonic: he meant 'understand' as `excuse'. The progressive philosophy of the 1970s — 'diversion' instead of prosecution, probation instead of prison — is alive and well. The PSR is a vital lever in sentencing. It is written by probation officers or, in the case of the under-18s, by social workers employed by local authorities and report- ing to Youth Justice Teams. Almost invari- ably they recommend their own services: a probation order, community service, or supervision orders for youngsters. Prison is ruled out as a 'finishing school for crime'. You might as well go to the acupuncturist to provide an objective assessment of the pros and cons of acupuncture as opposed to traditional surgery.
Rose seems uneasy about the abolition — more accurately the diminution — of the time-honoured 'right to silence' in the 1994 Criminal Justice and Public Order Act. Since April last year, failure to answer questions put by the police and failure to give evidence in court allows the Bench to draw a 'proper inference'. This is simply a long overdue victory for common sense over the special (and specious) pleading of lawyers. It may bring us to call into question the entire adversarial game pre- vailing in this country, and to re-examine the merits of the Continental 'inquisitorial' system, whereby a key role is played by an examining magistrate. As Rose says, the vested interests against change remain powerful. 'For most barristers, the struc- tures of English justice have become a fetishistic totem which preserves their own privileges.' More than 100 MPs in the cur- rent Parliament are barristers. That's one in six! What hope?
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