Tough justice on the cheap: Michael Howard's proposed changes to the legal system are mainly about saving money, says Anthony Scrivener

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The Independent Online
THE LEGAL profession may be forgiven for regarding the Home Secretary's speech at the Conservative Party conference with a degree of cynicism. Of course we are all in favour of family values, victims of crime and well- behaved children. Mr Howard did not say he was in favour of dumb animals, too, but perhaps this was because he is going to protect 'country sports'. The reason for this cynicism is that, unlike the majority of the community (including most of the party faithful at the conference), lawyers actually know what is happening to the criminal justice system and they listen to Mr Howard's stirring remarks in this context.

In the past, proposals to change the legal system have been guided by the desire to make the system more efficient and more just. The matter was never party political. Things are different now. The dominant reasons for change at present have little to do with such considerations and more to do with cutting the resources available to the police and the courts and with an attempt to regain popularity with the electorate.

As the baying of the faithful dies away we should look at the real world a little.

There is a curious statistic that Mr Howard did not mention at his party conference: although the crime figures have never been higher, the number of cases actually going through the courts is the lowest for years and it is still declining. How has this remarkable state of affairs arisen? It is not the result of some policy announced by the Government but the direct effect of the financial cutbacks imposed upon the police and the courts. Because of these cutbacks we can no longer afford to prosecute criminals who should be brought before the courts.

The lack of resources has led the police to resort to ad hoc but widespread cautioning. Magistrates whose lists of cases grow shorter every day are frustrated because criminals they should be dealing with have been released with a caution. Mr Howard does not say he intends to ensure that such persons will be dealt with by the courts: instead he will be issuing guidelines to the police in an attempt to make respectable a practice that has developed without good reason.

This move away from the courts is not the result of some well thought-out strategy. There are no remedies against the police if they choose to administer a caution rather than deplete their resources by incurring the costs of a prosecution. The fact is that the government welcomes this development because it saves money.

Recorders (part-time judges) undertake between 20 and 30 per cent of criminal work, but as a result of cutbacks the Lord Chancellor's Department cannot afford to pay them. Consequently, the courts are closed and despite the decreasing number of cases coming through to court the backlog of cases waiting for trial is increasing daily.

Magistrates' courts are now funded on a points system based on the throughput of cases - rather like an incentive bonus in a pea factory. Again the new system has nothing to do with considerations of justice: it has all to do with reducing the financial resources available. The police quite rightly are objecting to the pea-factory principles being applied to them - which is how they see the Sheehy recommendations.

None of this is mentioned, let alone addressed. Mr Howard's remedy is tougher and tougher sentences in privatised prisons yet to be built. We will certainly need them. He boasted: 'We have increased sentences right across the board.' He might have added that despite this the crime rates have continued to rise and recidivism among the young is as high as 80 per cent.

Everyone agrees that cases of serious violence merit long sentences of imprisonment and that steps need to be taken to deal with persistent young offenders. The problem is that experience has shown that in many cases the only effect of a custodial sentence on a young person is to produce a vicious criminal with no option other than to pursue a career of crime, which he is better equipped to follow as a result of his time in prison. All of the studies show that recidivism can be reduced by appropriate non-custodial sentencing, but we have no proposals and no funds for this. We shall have Mr Howard to thank for a future generation of hardened criminals who, however long the sentence they are given, will one day have to be released.

The battle against the increasing tide of crime will not be stemmed by filling up the overcrowded prisons. It will only be won by providing sufficient resources to the police and the courts to allow the criminal justice system to operate properly.

There is yet another surprising development. The Home Secretary has discovered another class of persons he can be tough with: those who want bail. His proposal is to do away with the existing statutory entitlement to bail, except where a convincing reason is given to the contrary.

People on bail have not been convicted of any criminal offence and about 40 per cent of them will eventually be acquitted. It does not make much sense to treat them as convicted criminals and ruin their lives by locking them up for months in an overcrowded prison awaiting trial. If those on bail commit offences, the courts have ample powers to deal with them.

The Royal Commission of Criminal Justice, after long deliberation, recommended the retention of the right to silence. At least we can be sure that the issue was considered on its merits. The reason for its retention is that its removal in effect reverses the burden of proof and actually encourages the police to concentrate on bringing a suspect into custody in order to extract a confession rather than carrying out a proper investigation. The result of this approach - and the unreliability of confessions - has been demonstrated vividly in several of the recent miscarriage of justice cases where convictions have been set aside.

The Government is apparently proposing to reject the recommendations of the Royal Commission on this issue. This may give Mr Howard a slightly warmer reception at the next police conference, but the big bonus is that costs can be saved. It is much cheaper to obtain a confession than have to carry out a proper investigation.

Taken together with the abolition of the presumption in favour of bail, this proposal is a step towards reversing the burden of proof and will probably be struck down by the European Court of Human Rights in due course.

The abolition of the requirement for a judge to warn a jury that it is dangerous in a sex case to convict on the uncorroborated evidence of the female complainant is a reform many lawyers have been urging for many years, and it is welcome. It is also just that the Government should take steps to relieve the police from the burden of completing five hours of paperwork for each suspect brought to court, since they imposed it on them in the first place.

Mr Howard defended himself against charges that he should not have made these important announcements at a party conference. I think he was very wise to present them to such an uncritical audience. I am sure Nero would have done the same.

The author is a QC and former Chairman of the Bar.

(Photograph omitted)

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