FILL UP THOSE CELLS

Theodore Dalrymple argues that the

freedom of the criminal is a far more pressing problem than the jailing of the innocent

A BRITISH professor of law recently tried to explain the glorious principles upon which British justice is founded to a visit- ing professor of law from China, the world's leading exponent of the death penalty. 'We believe it is better,' he said confidently, 'that a hundred guilty men go free than that one innocent man be unjust- ly convicted.'

The Chinese professor thought deeply for a moment.

`Better,' he asked, 'for whom?'

Well, as it happens the English law does not seem to be making too good a job of failing to convict the innocent these days. Indeed, it must sometimes appear to read- ers of our great liberal newspapers as if the police are willing to bring charges only against those for whose guilt they have to concoct the evidence. A Royal Commis- sion chaired by Lord Runciman, appointed to reform our criminal law in the wake of the quashing of the 'unsafe' convictions of the Birmingham Six, has just published its recommendations on how to avoid similar debacles. But, if the wrong questions are asked, the answers are unlikely to prove of much worth.

I am not in favour of wrongful convic- tion, of course, and still less should I like to be taken as an apologist for the princi- ples of Chinese jurisprudence as exempli- fied by the events in Tiananmen Square. But the only way to ensure that there are never any wrongful convictions is to aban- don prosecution altogether: a certain num- ber of such convictions must, unfortu- nately, be expected, no matter the system in operation. And it is clear — to me at least — that the worst, and by far the most frequent, injustice inflicted by our legal system upon millions of our citizens is not wrongful conviction, but the absolute absence of protection or redress which it provides against the actions of those who break the law, often persistently.

There may be, as a recent book alleges, 500 innocent prisoners within our prison system, and if true this is a terrible thing (though how it can be known for certain escapes me); but in everyday practical effect it is a far more terrible thing that thousands of criminals go unpunished every day, and their crimes go unrecorded, because people are all too aware that the police can or will do nothing.

The violence and disorder of daily life in much of England can now scarcely be exaggerated — at least if my catchment area as a general practitioner is typical. Many of my patients, otherwise respectable, carry knives for self-protec- tion. Most tell me stories of robberies, burglaries, vandalism and assaults recently endured (it is worth pointing out in this context that crimes against property are crimes against owners of property, and are therefore not trivial or unimportant, as is sometimes implied). Often the perpetra- tors are relatives, in which case the victims are reluctant to press charges; if the per- petrators are unknown, it is accepted as a fact of life that the police will not find them.

The wave of crime and violence has crashed through our hospital. Last week, the office next to mine was broken into. A doctor's car was stolen two weeks ago. In the last month, two of my patients were mugged on the way to my clinic, not a hun- dred yards from the hospital. A patient was nearly raped in the hospital grounds last week. A fortnight ago, I watched a patient wreck a room in the casualty department, causing hundreds of pounds' worth of dam- age, because she was high on drugs (she wasn't made to pay, of course). A patient threatened to kill me and assaulted a mem- ber of staff three weeks ago, and a man appeared on a ward in the hospital a month ago with a loaded gun. He was the only culprit among the above to be caught and charged with an offence.

In some ways, the surprising thing is not that there is so much crime, but that there is not more. Certainly for youngsters, there is no longer any prudential reason for not stealing what they want. They have as much to fear from the law as Saddam Hussein has to fear from an editorial in the Guardian. As for their parents' wrath, it is more likely to be turned on those who have caught their beloved offspring in the act than on the miscreants themselves.

The police simply will not bring prosecu- tions against those, whether children or adults, who commit 'minor' offences (trau- matising for the victims as they may be). At best — but certainly not always — they issue a caution, even when the offender is a well-known recidivist. The result, of course, is that offenders soon learn that they act with impunity. The police argue that such cases would be dealt with by the courts with a mere admonishment not to repeat the offence; and I have been told quite frankly by many police officers that the paperwork involved in bringing a prosecu- tion is now so cumbersome and time-con- suming that the game is not worth the candle.

The bureaucracy involved in bringing a prosecution is no doubt the consequence — via the Police and Criminal Evidence Act — of past misdemeanours on the part of the police, and an attempt to prevent them from recurring. But in emasculating the police criminals have been, in the terri- ble cant word of sociology, empowered. In a sense, we have exchanged a few wrongful arrests for many unlawful entries.

It is not only relatively minor offences that go unprosecuted — far from it. If the police officer on duty in the station is lazy, stupid or particularly hard-pressed, even very serious offenders may be released without so much as a warning. Custody officers often give the impression that they are only interested in clearing out their cells as quickly as possible, regardless of the consequences to the public. Not long ago, a man in this town attempted to attack his accountant with a crow-bar, nar- rowly missing him before he ran out of the office, and was arrested in a shopping cen- tre half an hour later still in possession of his weapon. He was released from custody almost immediately. With utterly mis- placed punctilio, the police returned his crow-bar to him, and no prosecution was brought. When the man who threatened to kill me (he admitted that he meant it at the time) was arrested by the police, the cus- tody officer asked me to come to the sta- tion to examine my patient, saying that as the police had done me 'a favour' by apprehending him, it was time for me to reciprocate. I replied mildly that I had until then supposed it was part of the duty of the police to protect citizens from death threats and that, as I was presently in out- patients and could not leave for another three hours, I would come to the station to examine my patient after five o'clock.

`I can't detain him that long,' said the officer, either in gross ignorance of the law, or lying outright. 'If I don't let him go, my whole career's on the line.' He then put the phone down on me.

I received a not dissimilar call when a patient nearly killed one of our hospital porters and was arrested. There was no dispute as to the facts of the case, for which there were numerous unimpeach- able witnesses.

`If you don't come to see him soon, doc- tor,' I was told by the custody sergeant on duty, 'I'm going to have to let him go.' And he meant it. Only my action prevent- ed a near-murderer from being let out on to the streets, without even a request that he should not try to murder someone else.

Of course, things have been getting worse ever since Plato, and moral panic is dangerous, even if it has its own surrepti- tious pleasures (oddly enough, no one

seems to view gross overreacting to a rela- tively few cases of miscarriage of justice as an instance of moral panic). Crime statis- tics are notoriously difficult to interpret for a number of reasons; but when they point without exception in the same direction as everyday experience, and there is no one who does not believe there are large areas of all our cities which are vastly more dangerous to inhabit or walk in than they were 20 years ago, the conclusion is inescapable. The influence of crime has increased, is increasing and ought to be diminished.

But how to bring about such a diminu- tion? I suspect that all the criminologists and criminological studies in the world will not help, and perhaps will even compound the problem, in as much as the statistical associations they uncover will provide fur- ther justifications for those with criminal propensities and their lawyers. Contrary to received opinion, one can deal with a prob- lem without unravelling its causes. The criminologists have only interpreted crime; the point, however, is to prevent it.

There are those, usually of markedly dif- ferent viewpoint from the criminologists, who ascribe the rise of crime to the decline of religion, and certainly in my experience those convicted criminals who `get' religion (it doesn't matter which one) while in prison are among the best bets for a gen- uinely reformed life outside. On the other hand, those who claim to have been religious before their conviction are almost always the most unmitigated scoundrels.

It is the loss of Christian faith that is par- ticularly lamented, and in these very pages a government minister opined not long ago that it was the decline of belief in damna- tion and the possibility of redemption that has led to our present predicament. In a certain sense I agree with him, though I should place the damnation and redemp- tion of which he speaks firmly on a terres- trial rather than a supernatural plane: large numbers of young people have come to believe, first, that none of their actions can result in any improvement in their lives, and, second, that none of their actions can have any consequences seriously harmful to themselves. Thus they cannot advance (redemption), but neither can they starve (damnation).

But in any case the kind of Christian faith which is commonly peddled, at least by the Church of England, is itself more likely to add to the burden of criminality than reduce it. Concern shall be more in Lambeth over one mugger that repenteth, than over ninety and nine of his just vic- tims, which need no concern.

The Christianity we get nowadays is unleavened by any Old Testament eye-for- an-eye realism: it is a heady amalgam of Little Nell sentimentality and polytechnic sociology, according to which criminals turn to crime as flowers to the sun, or as amoebae push out pseudopodia towards morsels of food. Concealed in all this auto- matic, unthinking absolution is a contempt for and snobbery about those who are the subject of it: they are forgiven for, unlike we who know better because we were brought up properly, they know not what they do: they're pretty stupid, in fact. In my experience, however, criminals know precisely what they do.

It is not a very difficult spiritual exercise to forgive those who have wronged others. I once had a friend who subscribed more or less to the we-are-all-guilty, it's- society's-fault school of thought. Then one day she was raped and nearly murdered. The perpetrator was acquitted on a techni- cality, and thereafter she saw him once or twice, when he gave her a little smile as if to say that they shared a guilty conspirato- rial secret. Needless to say, she realised how cheap and gimcrack her ideas had been on the subject of crime before the event. What she wanted now was for the criminal to be so harshly punished that he would never again be free, or, if free, that he would live in such terror of punishment that he would never consider repetition of his action. Not, on the whole, a view which would commend itself to recent Archbish- ops of Canterbury.

I am not against forgiveness; and I have frequently been moved at the repentance of prisoners (though I have more often been chilled by the lack of it). But I do not think the Christian doctrine of forgiveness can easily be made the basis of social poli- cy. Christian forgiveness, like compassion, is a private, not public, virtue. It is almost what Gilbert Ryle would have called a cat- egory mistake to introduce Christian for- giveness and understanding into the criminal law. Moreover, it conduces in practice to social mayhem, a Hobbesian war of each against all.

It is fashionable in some circles to doubt the value of punishment. In Saudi Arabia, however, there is little theft because every- one knows the orthopaedic consequences. In West Belfast there is little drug-taking because the IRA does not approve of it, and expresses its disapproval ballistically. On certain estates in Liverpool, drug deal- ers are knee-capped on sight by vigilantes, and so there is almost no drug-dealing there. And in prison there is little grassing because of the beatings-up which invari- ably ensue.

I am not endorsing the spread of vigi- lante groups, which are much to be feared, but if the law will not protect citizens they will inevitably take matters into their own hands from sheer exasperation. What we need is swift, effective and if necessary condign punishment of wrong-doers; reforms which do not have this end in view are useless, do not address the injustices Inflicted daily upon millions of our citi- zens, and are themselves symptoms of the profound and prolonged moral panic which has gripped British society for the last three decades.