Lore and disorder

IN THE NAME OF THE LAW: The Collapse of Criminal Justice by David Rose, Cape pounds 17.99
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The Independent Culture
LAW or order? The right-wing mantra of law and order has gone the way of such other traditional inseparables as love and marriage: it now seems (to stand Frank Sinatra on his head) that you can't have one with the other. On one side, the bobby lobby complains that the constraints of legality and due process force the police to fight crime with one hand tied behind their backs. Against this, civil libertarians bemoan the inadequacy of legal regulation of the police. They point to a string of notorious miscarriages of justice, from Timothy Evans in the 1950s, via such scandals as Challenor in the '60s and Confait in the '70s, to the more recent mass escape of skeletons from the Home Office cupboard: the Guildford Four, Birmingham Six, Maguire Seven, Tottenham Three, Judith Ward, Stefan Kiszko and others.

As David Rose tells us, the mainstream academic analysis of criminal justice over the last 30 years suggests that there is a fundamental tension between the values of crime control and due process of law. Right-wing law 'n' order enthusiasts would make the control of criminals their absolute priority, regardless of any cost to civil liberties, while liberals and the left have appeared more concerned about the sins of criminal justice agents than those of offenders. His riveting, profoundly disquieting book describes an even more disturbing set of developments: with the old law vs order model somebody always won, as the system veered at times towards crime control, at (fewer) times towards due process. What David Rose convincingly calls "the collapse of criminal justice" is a state of affairs where nobody wins - and there is no rollover to look forward to.

Rose's book begins by quoting the death sentence on the old regime of criminal justice, announced by Lord Lane's five words at high noon on 19 October, 1989, setting free the Guildford Four after their 15 years' incarceration: "The officers must have lied." As Rose rightly remarks, Lord Lane's comments "exploded like a depth-charge in a placid lake. His horror and cold fury were harbingers of tidal waves that have yet to subside." Closely followed by the rest of the miscarriage of justice roll-call mentioned earlier, the cases opened up precisely that "appalling vista" of a fundamentally flawed criminal justice process from which Lord Denning recoiled in horror in 1980 when refusing to allow an earlier appeal by the Birmingham Six. David Rose has an outstanding reputation as a campaigning journalist who has exposed many miscarriages of justice. It is hardly surprising that he opens his book with a compelling, vivid and humane analysis of the well-known causes celebres of criminal injustice together with several lower-profile but equally worrying examples of the corruption of power.

It is Rose's impeccable civil libertarian credentials, however, that make his auto-critique of the classic left-liberal orthodoxy so striking and convincing. He begins the argument with heart-rending accounts of the system's failure to deal with serious crimes, notably those against ethnic minorities. Contrary to the standard critical analysis, however, Rose does not attribute this to police or other criminal justice officials' racial discrimination. While recognising the virulent racism which still disfigures too much of the system, he documents how in many cases the police strive hard, though often unsuccessfully, to deal with crimes against ethnic minorities.

The victimisation of ethnic minorities indicates a more profound problem of criminal justice, which Rose sums up as "the retreat from prosecution". During the 1980s recorded crime more than doubled. Although some of this may be due to increased reporting and recording, the regular Home Office British Crime Surveys show that the proportion of the population who suffered at least one crime increased by about 88% between 1982 and 1992. Despite this huge growth in offending, the number of convictions for criminal offences at Magistrates' and Crown Courts fell from 2.2 million in 1983 to 1.4 million in 1993. This is partly because of a switch to cautioning, but the total of convictions and cautions also fell (from 575,900 to 517,100 for indictable offences) despite the huge growth of crime. Unlike many forms of legitimate occupation, crime does now pay.

This is largely the consequence of the reforms of criminal procedure introduced following the1981 Royal Commission on Criminal Procedure, set up in the wake of concern about the Confait case and other 1970s causes celebres. The Police and Criminal Evidence Act, 1984 (PACE) and the Crown Prosecution Service (CPS) have both been criticised by radical research for the inadequate safeguards they provide for vulnerable suspects. However, while accepting this side of the argument, Rose demonstrates that they also make it extremely difficult for the police to secure convictions in serious cases.

The contemporary police come out looking very healthy from Rose's analysis. Unlike their predecessors, they do not rail in principle at the tighter legal restrictions they work under. A more highly educated service, their ethos has been largely transformed by a host of internal reforms inspired by the Scarman Report on the 1981 Brixton Disorders. Indeed, they emerge as more radical critics of the current social and political scene than Tony Blair's New Labour, and maybe even Rose himself. It is perhaps no wonder that their erstwhile fan club, the Tory government, has turned on them, subjecting them to pay cuts and ever more tightly controlled fiscal and managerial regimes in the name of value-for-money and "businesslike" policing.

A compelling, if depressingly bleak indictment of how a government of self-declared guardians of law and order have presided over booming crime and collapsing punishment, Rose's book is a little short on analysis and even shorter on prescription - though this is at least equally true of academic criminologists like myself. But the street cops he quotes say it all for us. "The rich are getting richer and the poor are getting poorer. And you see these so-called leaders of society, breaking the law and getting away with it. Major launched 'Back to Basics' and then half his own people turned out to be over the side. The very fabric of society is in extreme danger ... it starts at the top." What is to be done? "There is simply no way I'm going to vote Tory. I'm only just waking up to what the arrogant bastards have done." If you want to understand the times, ask a policeman.

Robert Reiner is Professor of Criminology at the London School of Economics.

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