T Social Context of the Law Prison Reform

SOCIAL CONTEXT OF THE LAW: PRISON REFORM

From a panel discussion delivered via webinar on 2 February 2021 between the Rev’d Jonathan Aitken and Chris Daw QC, moderated by Master Libby Purves.

Libby Purves: Our two speakers this evening have experience of prison from every possible side. Jonathan Aitken has been an MP and a cabinet minister and has himself served time. He has authored reports for the Centre for Social Justice on prison reform, and now Jonathan is a prison chaplain at Pentonville and honorary chaplain to Christians in government.

Chris Daw QC is the author of Justice on Trial, a book laying out where we fail, and have been failing for many years, in prison policy. He is a leading criminal defence barrister and has looked into the faces of people most of us would shy away from and has listened to arguments in real life which would raise eyebrows and disbelief if they turned up in a television play. Sir, the floor is yours.

Chris Daw: For me, our criminal justice system, and the way we deal with criminal acts and criminal activity as a society, is not only a very important part of our civil society, but it is also probably the one that we get the most wrong. When I go to court, as a lawyer I am duty-bound to do the best I can for my clients, to follow my instructions, and to assist the court and the administration of justice, but time and again I asked myself, “What’s the point of this case?”

My book was intended to put justice on trial. I start the book by talking about the history of crime and punishment. One of the things that marked out systems of justice in early societies was that moralistic and religious view that punishment and vengeance should be an intrinsic aim. And sadly, those core themes of vengeance and punishment have pervaded almost every system of justice ever since. And they still do, in the sense that we have seen in this country over the last two or three decades an enormous increase in the use of imprisonment, in particular the length of sentences and the number of prisoners. And much of that has been in response to public demand for vengeance and punishment for offenders, particularly violent offenders, but also drug offenders.

So, I begin the book properly with the subject of prison. And the conclusion I have come to about prisons, having travelled and researched the subject in some detail, is that they are almost entirely unfit for purpose. If the purpose of the criminal justice system is to reduce the amount of crime, to reduce the amount of repeat offending by those who commit crimes, then prison is diametrically opposite to policy and strategy that you would use if you were applying the evidence of what works and what does not work. And that is even if you set aside the inhumane way so many in prisoners all over the world are treated. The conclusion I have come to about prisons, having travelled and researched the subject in some detail, is that they are almost entirely unfit for purpose. If the purpose of the criminal justice system is to reduce the amount of crime, to reduce the amount of repeat offending by those who commit crimes, then prison is diametrically opposite to policy and strategy that you would use if you were applying the evidence of what works and what does not work.

Prisons just do not work. But another thing that does not work is drug prohibition. Today, millions and millions of people all over the world consume drugs of one kind or other. And it is only really in the last 50 years or so that we have begun to treat that activity as one of the most important elements of our criminal justice system, and one of the most important sources of prisoners for the prison system.

All I have ever seen across all that criminal justice enforcement activity, and all those prosecutions, is a dramatic increase in drug consumption, a reduction in the cost of drugs on the street, and an enormous increase in drug-related violence and murder – all of it, in my conclusion, a result of the prohibition that we have engaged in, and the enforcement and lengthy prison sentences for drug offences. I have no doubt whatsoever, based on the evidence, that prohibition of drugs is damaging and wrong for our society.

The final two topics are kind of interlinked. The first of these is that one of the chapters of the book is called Why Children Are Never Criminals. I have no doubt that the way we treat young people who become embroiled in our criminal justice system is counterproductive – in the sense that it actually increases criminality over the long term. I strongly believe that it breaches the United Nations Convention on the Rights of the Child, and that we treat our children in the criminal justice system in this country in a way that is inhumane, and contrary therefore to international law. We must do something radically different and stop criminalising children.

The biggest mistake we make is in categorising people as either good or evil, rather than looking at why acts are committed, and what could be done in the long term to reduce the amount of crime in our society. By having this binary analysis of individuals, we contribute to the never-ending cycle of criminality by a certain group of people, most of whom have been severely damaged in their childhood and severely damaged by addiction and mental health problems.

That is why we need to radically reform our system and that is what we are doing so badly at the moment. That is why almost everything we do and think about crime and punishment is wrong.

LP: You need a prison policy which is non-political, because political prison policies are always a disaster. Is that what I have read from your writing?

CD: I fully accept that much of what I say, particularly the advocacy around the massive reduction in the use of imprisonment, the decriminalisation, legalisation and licensing of drugs, are things that are not broadly popular with the voting public. And politicians know that, and that is why we had Priti Patel and Boris Johnson at the last election campaigning for increasing the use of prison, reducing the amount of remission and licence time that people will be given at the end of their sentences, and coming out strongly against any liberalisation of drug policy. People on the whole vote for very simple messages. So, it’s one of those cases where democracy in my view does not really work.

LP: Let us turn now to the Rev’d Jonathan Aitken.

Jonathan Aitken: I begin by saying that I am a fan of Chris Daw. I reviewed his book, and gave it a pretty favourable review, because it is a very original contribution to the debate we’re having, which is really, “Whither the future of criminal justice?”

I think that where things go wrong a bit with Chris, is there was rather a flamboyant sentence: “The whole system is unfit for purpose and it achieves almost nothing.” Whether we like it or not, there are some people in jails who the general public do need to be protected from. There are some people who are evil: child molesters and murderers on a big scale, men of dangerous violence. So, the protection of the public is one good purpose for prison.

Whether we like it or not, there are some people in jails who the general public do need to be protected from. There are some people who are evil: child molesters and murderers on a big scale, men of dangerous violence. So, the protection of the public is one good purpose for prison.

The second one, I am old-fashioned enough to think some people actually do need to be punished. The state does need to have a system where it has some punishments. It may not always be imprisonment – I agree we send far too many people to prison – but that is a purpose which is fulfilled.

The third purpose, which our Victorian ancestors would have been big on, was the rehabilitation of prisoners. And there we fail as a society extremely badly. We are getting better at it, but we are not very good at it. Roughly speaking, out of every seven people who walk out of a prison, six or seven of them will be back within two or three years, because they have not been rehabilitated. Not entirely their fault sometimes – sometimes it is – but we fail badly on the rehabilitation of prisoners. Now, should we be keen on reform? You bet we should be. Because our jails are getting fuller by the day. One of the most heart-breaking parts of my job right now goes round a phrase, “Justice delayed is justice denied.” There are people who, this time last year, were arrested and charged; they got a trial within three months, and now they are lucky if they get a trial within a year. And sometimes, 18 months, 2 years. And the heartbreak is that the system is really letting them down badly.

I do think our courts, our juries, our judges are fair – it is not a corrupt system. Actually, there are a lot of good probation officers, good prison officers. But there are big, big failures. I am for democracy; you should persuade people. That is what being in a democratic country means. And I would like to persuade people that our drug laws really are in rotten, lousy shape, and we could do them much better.

I think to a large extent, possession of small quantities of marijuana, at least, is now hardly a criminal offence. But come to the big stuff, I think instead of this mega-criminalised system we actually need a legal system to do with drugs: penalising people in various ways, licensing quantities of drugs. I think one place I can agree with Chris is that our drug laws are not fit for purpose and need a massive and courageous reform.

The criminal justice system is a patchwork quilt of good things and bad things. But at the end of the day, the criminal justice system is partly broke, and it needs a lot of fixing.

LP: Do you believe that people are persuadable that prisons should be changed, that prisons should be better, it should be the kind of educative, rehabilitative, good, reforming prisons? I mean it is a moral and a Christian argument, correct?

JA: Well, there are no votes in prisons or prisoners so it can be quite a tough sell. However, there are a lot of polls around which say something like, the public are not that in favour of so many prison sentences being handed out; but on the other hand, maybe there should be, because the alternatives to imprisonment are so ineffective. The probation system is creaking at the seams. So, a focus on alternatives to prison, punishing alternatives to prison in many cases, is an area which needs reform.

LP: I would just like to return to Chris Daw with that point about alternatives, because in your book, the alternatives excited me a great deal. Can you give us just a very quick sketch of what an alternative might be? Are we talking Norway, are we talking beyond Norway, how would it be?

CD: I think it is beyond Norway. There is this residual group of people who are violent and dangerous, whether they be sexual offenders, or violent in other ways. But they represent a very small proportion of the total 82,000 or so prison population, of which 69 per cent are non-violent.

So that residual group of maybe 15 per cent or so or 20 per cent, it is difficult to be precise, but that number is relatively small – and there may be reasons why some others would need to be in prison anyway. So, what do you do with them? What do you do with people who, if you let them on the street, might indeed attack someone, physically or sexually or otherwise, in a violent attack? My position is that there is only really one form of criminal justice process for the most serious offenders that works, and that is to normalise their life in a custodial environment. The reason why we have such high levels of recidivism when people leave prison is that they come from an utterly alien environment and have no coping mechanisms for the world that faces them on the outside.

Yes, you have to have a perimeter to contain certain individuals. You don’t have to have a 50ft-high Victorian red-brick wall or a massive concrete wall. There are all manner of ways in which perimeters can be less obvious, but for the people inside, you need to normalise their existence so that when they walk out of the door or the gate to the outside world, it is actually not that different to what they’ve left behind.

So, you have still protected the public from them, because you have kept them contained – which Norwegian prisons largely do. Although the Norwegian model is not perfect, Norwegian prisons normalise the existence of prisoners. They allow families to come in sometimes to spend the weekend. They allow much freer access of people to education and work, and the sorts of things that people are going to have to do if they are ever going to get out of that revolving door of criminal justice.

And that is how I see we do it – let people live in ordinary living conditions, live their lives, study, work and engage with their families in secure conditions as normally as possible. That in my view, in the end, is what will reduce recidivism and reduce crime in our society.

LP: You suggest in your book, tracking technology is one of the ways that we can do this, because it is possible to know where anybody is at any given moment. Has all this technology come on far enough for that to be reasonable?

CD: It has. When I made the series for the BBC last year, I filmed some of this technology, much of which originates in China. And for the general public, it is incredibly frightening, because they can use facial recognition, they can use all manner of tracking, to track entire towns and cities at once, to know exactly where anybody is all the time, and that would be awful to apply to a society.

But when you think about the alternative between being in the sorts of prisons that we have in Strangeways and all of those large Victorian institutions – compare being in there on a wing with having to carry a phone, having to have a facial recognition system in your house to make sure you are there, and you are not leaving. Would you rather be in prison as we know it, or virtually imprisoned in your own home and able to go to work, because, with facial recognition and iris scanning and all this technology, you can make sure that people are where they say they will be.

When you think about the alternative between being in the sorts of prisons that we have in Strangeways and all of those large Victorian institutions – compare being in there on a wing with having to carry a phone, having to have a facial recognition system in your house to make sure you are there, and you are not leaving. Would you rather be in prison as we know it, or virtually imprisoned in your own home.

So, we can use technology in a really creative way that actually makes things fairer and better for the individual but, most importantly, improves the outcomes. Because that is what really matters; it’s that they do not reoffend, and they do not go back to prison. That matters more than anything to the whole of our society.

LP: Jonathan, can you imagine this virtual tracking being a replacement for at least most non-violent offenders? Would that be something you would welcome?

JA: Yes, I do think that we could go an awful long way with new technology to get improved outcomes. And I could not agree more that by just banging people up there is no rehabilitation at all. If you had the right kind of technology and proper forms of rehabilitation, it would be a big improvement.

But we cannot just leave money out of this. Some of these reforms are very expensive, and the Treasury says, “Well, show us something that works.” And a lot of these things have to be tested for some time before they work, and quite a few of them do not work very well.

LP: I just want to ask each of you a question about each other. Jonathan, are you beginning to be converted to Chris’s idea of knocking out the entire concept of prison as prison?

JA: I do not think honestly you can do that. I do believe punishment, sometimes by imprisonment, for the protection of the public, is right. But, that said, this debate shows Chris and I are not at some huge distance. If he and I were in charge of the justice system, I think we would agree on a good few reforms.

LP: Chris, is there any point unless we try to have a root-and-branch reform of our whole approach, from democracy outwards?

CD: Why did I choose such extreme titles for my chapters as Let’s Close All Prisons? It was not because I think we are ever going to do that. It is by saying that that you start to make people think that we’re doing something completely wrong. And frankly, I would be more than happy for any progress on this issue because we are seeing very little at the moment.

LP: Thank you, Jonathan Aitken and Chris Daw.

Libby Purves OBE The Rev’d Jonathan Aitken Chris Daw QC

Lincoln House Chambers

For the full video recording of this discussion: innertemple.org.uk/prisonreform