tag:theconversation.com,2011:/fr/topics/uk-justice-10847/articlesUK justice – The Conversation2023-08-11T14:14:53Ztag:theconversation.com,2011:article/2111532023-08-11T14:14:53Z2023-08-11T14:14:53ZWhy imprisoning repeat shoplifters rarely breaks the cycle of offending – and what may work better<figure><img src="https://images.theconversation.com/files/541706/original/file-20230808-25-1obzzr.jpg?ixlib=rb-1.1.0&rect=0%2C16%2C5364%2C3910&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The possibility of introducing mandatory prison sentences for prolific shoplifters has been mooted by government ministers. </span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/londonenglandunited-kingdomjuly-21-2019-waterloo-rail-1676652064">Neil Bussey/Shutterstock</a></span></figcaption></figure><p>The UK government is taking a <a href="https://www.gov.uk/government/news/action-plan-to-crack-down-on-anti-social-behaviour">harsher approach</a> to tackle criminal activity which is blighting local neighbourhoods. And recently, government ministers have been talking tough about repeat shoplifting, including <a href="https://www.thetimes.co.uk/article/shoplifters-face-prison-under-crime-crackdown-ggdbv3j99">the possibility</a> of introducing new laws which would see prolific shoplifters imprisoned. This has all been against a backdrop of concern about a <a href="https://www.theguardian.com/society/2023/jun/01/one-guy-uses-us-like-a-larder-the-british-shoplifting-crisis-as-seen-from-the-tills">rise in shoplifting</a> across the UK.</p>
<p>But there are some serious practical problems with any such measures and questions remain over whether such a policy could break the cycle of offending. Meanwhile, there is an innovative approach to this issue which may be a better way of dealing with crimes such as shoplifting called “<a href="https://www.gov.uk/guidance/integrated-offender-management-iom">integrated offender management</a>” (IOM). </p>
<p>Rolled out over the past few years, IOM is a novel criminal justice approach that is designed to break the cycle of re-offending. It is operated by 39 out of 43 police forces in England and Wales. </p>
<p>IOM involves police officers working closely with prison and probation services and criminal justice intervention teams. These are support staff who provide both clinical and therapeutic interventions for drug users involved in the criminal justice system. It is all in an effort to change or control the criminal activities of prolific offenders. </p>
<p>IOM was designed to address the underlying causes of offending. By the end of 2020, it was <a href="https://www.gov.uk/government/publications/integrated-offender-management-strategy">central</a> to the government’s neighbourhood crime strategy. In a report issued that year, former minister for crime and policing Kit Malthouse and former minister for prisons and probation, Luzy Frazer, said: </p>
<p>“We need a new approach – one with the tools to come down with full force on those responsible, but which also encourages rehabilitation and supports offenders to overcome the complex problems that we know can fuel this type of behaviour, such as substance misuse, poor mental health and issues with housing or employment.”</p>
<p>Any proposals which would see prison sentences for repeat shoplifters could risk undoing any positive progress made under IOM. </p>
<h2>The problem with prison</h2>
<p>The UK’s prison estate is running out of capacity for adult males. In November 2022, <a href="https://www.theguardian.com/society/2022/nov/30/uk-government-requests-urgent-police-cells-male-prisoners">the Ministry of Justice announced</a> emergency measures that would see some offenders who would ordinarily be imprisoned (typically remand prisoners) housed in police cells. <a href="https://www.gov.uk/government/publications/prison-population-figures-2023">Figures</a> released in August 2023 show a total of just 980 available prison places.</p>
<p>The government has <a href="https://www.gov.uk/government/news/500-million-boost-to-create-thousands-of-new-prison-places">already stated</a> that more prisons need to be built. But any criminal justice initiative that requires new prisons will take a long time to deliver. This is because, on average, new prisons take <a href="https://consult.justice.gov.uk/digital-communications/proposed-new-prison-in-chorley/supporting_documents/chorleynewprisonconsultation.pdf">two to three years to build</a> and open. </p>
<p>Also, <a href="https://www.centreforsocialjustice.org.uk/wp-content/uploads/2018/10/CSJ-Desperate-for-a-fix-WEB-1.pdf">70% of shoplifting</a> is estimated to be carried out by people funding an addiction to class A drugs – typically heroin and crack cocaine. These people arrive in prison as addicts and likely leave as addicts and so will continue shoplifting. Custody is not a panacea for prolific shoplifting and is unlikely to break the cycle of offending. </p>
<h2>Integrated offender management</h2>
<p>IOM work is done through a mix of rehabilitative and restrictive or enforcement-orientated interventions. Here, the police take a “<a href="https://www.tandfonline.com/doi/full/10.1080/10439463.2018.1547719">carrot and stick</a>” approach to the management of offenders. Plain-clothed officers, deployed as police offender managers, gather intelligence and monitor people for signs of re-offending. </p>
<p>Simultaneously, these officers attempt to draw offenders away from crime by working alongside the other agencies, facilitating access to drug services, education, employment and transitions into stable housing arrangements. This is the “carrot” approach. </p>
<figure class="align-left ">
<img alt="A police officer wearing a yellow high visibility jacket" src="https://images.theconversation.com/files/542123/original/file-20230810-18-i6hwim.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/542123/original/file-20230810-18-i6hwim.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=715&fit=crop&dpr=1 600w, https://images.theconversation.com/files/542123/original/file-20230810-18-i6hwim.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=715&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/542123/original/file-20230810-18-i6hwim.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=715&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/542123/original/file-20230810-18-i6hwim.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=899&fit=crop&dpr=1 754w, https://images.theconversation.com/files/542123/original/file-20230810-18-i6hwim.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=899&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/542123/original/file-20230810-18-i6hwim.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=899&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Integrated offender management involves police officers working closely with other agencies.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-uk-19th-april-2019-police-1392717764">John Gomez/Shutterstock</a></span>
</figcaption>
</figure>
<p>Where there is evidence that a person is failing to comply with licence conditions, or engage with IOM positively, traditional catch-and-convict policing methods are used by uniformed patrol officers. This is the “stick” approach.</p>
<p>Prolific shoplifters are the type of offenders IOM schemes should be engaging with. </p>
<p>My own <a href="https://www.routledge.com/Integrated-Offender-Management-and-the-Policing-of-Prolific-Offenders/Cram/p/book/9780367254148">research</a> has focused on how police officers contribute to IOM schemes. </p>
<p>I have also spoken with offenders who were engaged with IOM in the community. A number said that, while it was initially challenging to do so, in time they were able to form working relationships with police officers. </p>
<p>And, significantly, because of this, IOM had had a positive impact on their lives. This was particularly the case when it came to IOM helping them enter employment and tackle any drug-related issues they were experiencing. </p>
<p>Broadly, IOM seemed to have a strong motivational influence and a positive impact on those who wanted to leave their criminal lifestyle behind. </p>
<p>But IOM can only fully operate when people are able to access the relevant support services in the community. People may be able to get very limited employment and substance misuse help when in prison, but IOM offers a much deeper and enduring level of support. </p>
<p>The prospect of removing sentencing discretion for prolific shoplifters from magistrates and judges and introducing mandatory jail sentences, would risk disrupting a significant criminal justice programme. IOM may be a better and more cost effective way to deal with the pressing issue of repeated shoplifting.</p><img src="https://counter.theconversation.com/content/211153/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>My original research, on Integrated Offender Management, was supported by the Economic and Social Research Council. Grant number: EF/H011382/1.</span></em></p>Integrated offender management is a better way of dealing with shoplifters than prison.Frederick Cram, Lecturer in Law, Cardiff UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1445202021-11-17T16:01:47Z2021-11-17T16:01:47ZWhy ten-year-old children should not be held criminally responsible<figure><img src="https://images.theconversation.com/files/432433/original/file-20211117-21-1cksmbt.jpg?ixlib=rb-1.1.0&rect=112%2C100%2C4065%2C2681&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/preteen-boy-on-street-big-city-711003304">Shutterstock/Anna Berdnik</a></span></figcaption></figure><p>In a recent 12-month period, police in England and Wales made <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/956621/youth-justice-statistics-2019-2020.pdf">just under 60,000 arrests of children</a>. Of these cases, which involved crimes including theft and antisocial behaviour, nearly 27,000 ended up in court. </p>
<p>Some of these defendants were just ten years old – the minimum age at which a <a href="https://www.legislation.gov.uk/ukpga/Geo5/23-24/12/section/50">child can be prosecuted</a> and punished by law for an offence in these countries. In <a href="http://www.irishstatutebook.ie/eli/2006/act/26/section/129/enacted/en/html">Ireland</a> and <a href="https://www.legislation.gov.uk/asp/2019/7/contents/enacted">Scotland</a> it is 12, while in Sweden and Denmark <a href="https://archive.crin.org/en/home/ages/europe.html">it is 15</a>. </p>
<p>The age age of criminal responsibility is hardly ever discussed by the mainstream media or politicians in the UK. When it is, the debate often goes hand in hand with reference to homicides by children. But the rarity of these shocking and sad events is seldom mentioned.</p>
<p>One such case, the killing by two ten-year-olds of the toddler <a href="https://news.liverpool.ac.uk/2013/02/11/viewpoint-the-significance-of-the-bulger-case-on-youth-justice-policy/">James Bulger in 1993</a>, is often cited by those in favour of a low age of criminal responsibility. The argument goes that if a child is old enough to act like an adult and commit a serious crime, then they are old enough to be treated like an adult and a criminal.</p>
<p>But this means society is willing to treat criminal children differently to other children. Whereas adults perceive childhood as a period of innocence, argues <a href="https://www.bloomsburyprofessional.com/uk/devils-and-angels-9781841133744/">law professor Julia Fionda</a>, as soon as individual children fail to live up to adult perceptions of what children should be like, they lose their “angelic” status and are seen instead as “devils”. </p>
<p>The death of James Bulger also led to the abolition of something referred to in legal terms as “<a href="https://www.iclr.co.uk/knowledge/glossary/doli-incapax/"><em>doli incapax</em></a>” (incapable of evil). Doli incapax meant that children aged ten to 14 were presumed to be incapable of crime unless the prosecution could prove (beyond reasonable doubt) that the child knew that what they were doing was seriously wrong, rather than naughty or mischievous. </p>
<p>In other words, it used to be assumed that children under 14 were not criminally responsible unless they understood the seriousness of their wrongdoing. Doli incapax protected some children involved in minor offending, where the difference between seriously wrong compared to naughty or mischievous may be less clear in some children’s minds. </p>
<p>But that doctrine was <a href="https://www.legislation.gov.uk/ukpga/1998/37/section/34">abolished in England and Wales in 1998</a>, leaving an age of criminal responsibility of ten, the lowest in Europe. This is too young. </p>
<p>To find out what others think, I recently launched an <a href="https://bit.ly/3ygO8Ps">online survey</a> of public opinion on the age of criminal responsibility in England and Wales. So far, from more than 200 responses, a clear majority (88%) think the age limit should be raised -– with the most frequently cited age being 16. The reason given by participants is usually a belief that this is an age by which most children can distinguish right from wrong and have an understanding of the law. </p>
<h2>The evidence</h2>
<p>Another reason to raise the age of criminal responsibility is the rarity of the most serious crimes being committed by children. The <a href="https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/articles/homicideinenglandandwales/yearendingmarch2020">evidence shows</a> that in the year ending March 2020, three of the 187 people (1.6%) convicted of murder in England and Wales were under 16.</p>
<p>Of around <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/956621/youth-justice-statistics-2019-2020.pdf">49,100 proven offences</a> committed by children in that year, the main offence type (31%) was violence against a person.</p>
<figure class="align-center ">
<img alt="Statue of Lady Justice in front of legal books." src="https://images.theconversation.com/files/431330/original/file-20211110-19-2b7g54.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/431330/original/file-20211110-19-2b7g54.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/431330/original/file-20211110-19-2b7g54.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/431330/original/file-20211110-19-2b7g54.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/431330/original/file-20211110-19-2b7g54.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/431330/original/file-20211110-19-2b7g54.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/431330/original/file-20211110-19-2b7g54.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">In need of a rethink?</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/law-666506344">Shutterstock/Zolnierek</a></span>
</figcaption>
</figure>
<p>For legal purposes, the seriousness of a violent offence is measured on a scale ranging from one (least serious) up to eight (most serious). Overall, just under <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/956621/youth-justice-statistics-2019-2020.pdf">140 proven offences</a> committed by children had the highest gravity score of eight, which accounts for only 0.3%. </p>
<p>Overall then, recorded serious violence by children is infrequent and the vast majority of offences committed by children are considered to be less serious.</p>
<p>As I have <a href="https://medium.com/reframing-childhood-past-and-present/age-of-criminal-responsibility-1e7714db9c1c">argued elsewhere</a>, there is also a lack of consistency across the broader criminal and civil law in England and Wales. The effective age of most civil responsibilities (playing the lottery, claiming benefits, voting, buying a pet, sitting on a jury) is 16 or above.</p>
<p>There is also neuroscientific research <a href="https://journals.sagepub.com/doi/full/10.1177/0022018318779830">which shows</a> that adolescents’ brains predispose them to risk taking behaviour and responding emotionally, without the same abilities as adults to control their impulses and consider the long-term implications. </p>
<p>This reflects what has been widely observed – that there is an increase in criminal behaviour in children that peaks in late adolescence, which then declines throughout adult life, when, <a href="https://www.watersidepress.co.uk/acatalog/Growing-Out-of-Crime-9781872870496.html">some argue</a>, they “grow out” of crime. Meanwhile, <a href="https://thenayj.org.uk/wp-content/uploads/2019/02/NAYJ-Child-friendly-youth-justice-May-18.pdf">research</a> shows that contact with the criminal justice system can extend the criminal careers of children, rather than curtail them. </p>
<p>There is an acknowledgement of this in the <a href="https://www.lboro.ac.uk/subjects/social-policy-studies/research/child-first-justice/">“child first” approach</a> to justice, which emphasises diversion and minimum intervention, and has been adopted as a strategic priority for England and Wales. </p>
<p>There is also some will to at least look again at the age of criminal responsibility, with a UK government review into the subject <a href="https://www.theguardian.com/society/2020/nov/12/review-age-criminal-responsibility-england-and-wales">recommended last year</a>. In view of the evidence, and to embrace the idea of minimum intervention more fully, it is clear that the age should be raised.</p><img src="https://counter.theconversation.com/content/144520/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Harriet Pierpoint does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The evidence is clear: the age of criminal responsibility is far too young at present..Harriet Pierpoint, Associate Professor of Criminology, University of South WalesLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1209052019-07-29T11:52:19Z2019-07-29T11:52:19ZLegal aid at 70: how decades of cuts have diminished the right to legal equality<figure><img src="https://images.theconversation.com/files/286025/original/file-20190729-43122-1evue9v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Access to justice has been diminished by swinging budget cuts in England and Wales</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/closeup-lawyers-hand-protecting-justice-scale-571649245?src=dSLcGhWwAgqL15lm0uWcow-1-8&studio=1">Andrey_Popov/Shutterstock</a></span></figcaption></figure><p>Happy birthday <a href="https://www.fabians.org.uk/wp-content/uploads/2017/09/Bach-Commission-Appendix-6-F-1.pdf">legal aid</a>! For 70 years, the people of England and Wales have <a href="https://api.parliament.uk/historic-hansard/acts/legal-aid-and-advice-act-1949">enjoyed the right</a> to be provided legal assistance at public expense if they cannot afford a lawyer.</p>
<p>Despite the importance of legal aid as a means to achieve social justice, the scheme is now a shadow of what it was once intended to be. Degraded by successive governments, legal aid is increasingly criticised for funding the defence of those seen as not “deserving” it. It is often <a href="https://www.lawgazette.co.uk/news/shamima-begum-case-pushes-legal-aid-into-national-spotlight/5070002.article">framed negatively</a> in the press, with outrage that “taxpayers’ money” is supposedly being <a href="https://www.itv.com/goodmorningbritain/news/fugitive-speedboat-killer-used-100000-in-legal-aid-to-fund-appeal-for-manslaughter-conviction">“given” to convicted criminals</a> instead of <a href="https://www.dailymail.co.uk/news/article-6921827/Shamima-Begum-legal-aid-despite-stripped-UK-citizenship.html">victims and their families</a> – a false dichotomy that seeks to diminish the rights of many of those who qualify for legal aid.</p>
<p>The very principle of legal aid is to ensure that everyone has equal access to advice and representation in order to uphold their rights. But antagonistic attitudes have fuelled negative public perception of the scheme, allowing large cuts to take place. This has been <a href="https://www.theguardian.com/politics/2013/jan/09/skivers-v-strivers-argument-pollutes">heightened under austerity</a>, allowing protections for society’s most vulnerable to be savaged in the name of claimed economic necessity. </p>
<p>The legal aid system now is under-resourced, with great pressure on those who provide advice and representation, and too often <a href="https://www.waterstones.com/book/the-secret-barrister/the-secret-barrister/9781509841141">lets down those people most in need</a>.</p>
<h2>Justice politicised</h2>
<p>Legal aid <a href="https://api.parliament.uk/historic-hansard/commons/1948/dec/15/legal-aid-and-advice-bill">was introduced</a> “for those of slender means and resources, so that no one would be financially unable to prosecute a just and reasonable claim or defend a legal right”. Sitting alongside the welfare state, the idea was that people needed recourse to a properly funded system of legal advice to enforce their welfare rights through the courts if necessary. In the decades after its launch, the reach of legal aid was expanded to include other areas of civil law, before criminal cases were included from the 1960s.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/P63p8lBFsr8?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<p>The cost of legal aid became highly politicised after the increasing budget – which quadrupled between <a href="https://www.fabians.org.uk/wp-content/uploads/2017/09/Bach-Commission-Appendix-6-F-1.pdf">1985 and 1995 to £1.4 billion</a> – became a bone of contention for governments keen on reducing expenditure. The Conservatives decreased eligibility for civil legal aid from 1987 onwards, making it available to only those on the lowest incomes (<a href="https://www.fabians.org.uk/wp-content/uploads/2017/09/Bach-Commission-Appendix-6-F-1.pdf">to less than half of the UK’s population</a>, when it was once available to more than three quarters of people. At the same time, new rules meant almost 10% of those who used legal aid had to pay towards it.</p>
<p>When Tony Blair became prime minister in 1997 under a Labour government, he maintained the focus on curbing legal aid, as war was raged against <a href="https://www.thetimes.co.uk/article/blair-was-wrong-to-brand-lawyers-fat-cats-says-ally-kns7zjmql">demonised “fat cat” legal aid lawyers</a>. The budget continued to rise, however, reaching over £2 billion during Blair’s time in office. This was in large part due to massive amounts of <a href="https://www.theguardian.com/commentisfree/2017/aug/31/tough-on-crime-prisons-crisis-prisoner-numbers">new legislation and criminal offences</a>. Crown Prosecution Service costs went up massively too, as Blair sought to tackle persistent offending and antisocial behaviour – without acknowledging how that added to the legal aid bill. </p>
<p>From 2012, the coalition government dramatically cut £751m from the £2.2 billion legal aid fund through the <a href="https://www.legislation.gov.uk/ukpga/2012/10/contents/enacted">Legal Aid Sentencing and Punishment of Offenders Act</a> (LAPSO). This was primarily achieved through reducing lawyers fees, and removing large parts of public funding for social welfare law – despite this area being one which people on low incomes, who are typically disadvantaged, are prone to experience difficulties with.</p>
<p>In the year before the reforms, 91,000 people received legal advice for welfare benefits cases. After LASPO, legal advice fell by 99% to just 478 people. And this at a time when problems with <a href="https://www.theguardian.com/society/2019/apr/04/study-found-universal-credit-causing-hardship-a-year-and-half-ago">new benefits such as Universal Credit</a> and the “<a href="https://www.theguardian.com/careers/2017/may/22/cruel-and-humiliating-why-fit-for-work-tests-are-failing-people-with-disabilities">cruel and humiliating</a>” fit-to-work tests meant people were likely to need advice more than ever. </p>
<h2>Justice constrained</h2>
<p>Austerity doubly hits the poorest communities. It restricts access to services and benefits, while making it harder to challenge the decisions of the state. As legal aid has been diminshed, access to justice has become more difficult in other ways too. <a href="https://www.theguardian.com/law/2019/jan/27/half-of-magistrates-courts-in-england-and-wales-closed-since-tories-elected">Courts have been closed</a> and <a href="https://www.theguardian.com/law/2018/may/02/6500-jobs-to-be-lost-in-modernisation-of-uk-courts">frontline staff replaced</a> with online services. Yet, following <a href="https://www.gov.uk/government/publications/post-implementation-review-of-part-1-of-laspo">a recent review of LASPO</a>, the government promised just £8m – mostly to promote IT – to fix the failings of the justice system. But vulnerable people need face-to-face advice, they need to be able to develop trusting relationships with the lawyers they go to for help, and feel they are being understood.</p>
<p>Seventy years since it was first established, urgent action is now needed to get legal aid back to the original principles of equity and equality. These ideals must be enshrined in policy and practice, not only for the benefit of this generation but for all of the future generations to come.</p>
<p>Eligibility criteria should be liberalised to avoid the current situation where <a href="https://www.lawsociety.org.uk/news/press-releases/struggling-families-disqualified-from-justice/">families living below the poverty line</a> might not qualify for legal assistance for issues such as fighting eviction. Legal aid fee rates should be increased to address <a href="https://www.theguardian.com/law/2018/apr/17/criminal-defence-solicitors-may-be-extinct-in-five-years-says-law-society">the crisis of recruitment and retention</a> that is facing this part of the legal profession too. While the scope of civil legal aid must cover more areas, reversing damaging cuts to areas such as family and immigration law. Legal help should be available earlier too, to stop problems escalating. In housing law, for example, legal aid is not available for disrepair issues until an issue has become serious enough to impact the health of the resident. </p>
<p>The Fabian Society <a href="https://fabians.org.uk/publication/the-right-to-justice/">has recommended</a> a new right to receive reasonable legal assistance without burdensome costs to tackle some of these problems. This would be accompanied by a set of guiding principles that would include promoting public legal education and ensuring that citizens can enforce the right. We also believe that <a href="https://www.gov.uk/government/organisations/legal-aid-agency">the Legal Aid Agency</a> – which manages the scheme as an executive agency of the Ministry of Justice – should be replaced by an independent body at arm’s length from government. Greater autonomy would mean it would be better placed to resist political pressures.</p>
<p>Legal aid is a public good and essential for a properly functioning democratic society. This anniversary should be an opportunity to not only celebrate a principle that has the potential to ensure equality before the law, but also cause us to take stock and get angry at how these rights have continued to be stripped away.</p><img src="https://counter.theconversation.com/content/120905/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Seventy years after it was first launched, legal aid’s principles of equality are a shadow of what they once were.Daniel Newman, Senior Lecturer in Law, Cardiff UniversityFaith Gordon, Lecturer in Criminology, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1132152019-03-12T11:27:04Z2019-03-12T11:27:04ZGrenfell Tower: criminal charges delayed, but that doesn’t mean there won’t be justice<figure><img src="https://images.theconversation.com/files/263126/original/file-20190311-86690-zeyozo.jpg?ixlib=rb-1.1.0&rect=8%2C0%2C2986%2C1994&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The campaign continues.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-united-kingdom-june-21-2017-664657924">Jane Campbell/Shutterstock.</a></span></figcaption></figure><p>In the aftermath of the Grenfell Tower fire, which killed 72 people, blame for the tragedy was laid at the feet of <a href="https://theconversation.com/yes-the-grenfell-tower-fire-is-political-its-a-failure-of-many-governments-79599">local and national governments</a>, the building’s management company and the corporations it had contracted to renovate the tower. Two years on, campaigners have reacted with dismay to <a href="https://www.bbc.co.uk/news/uk-england-london-47478091">the news</a> that charges might not be brought until 2021 – meaning that the earliest a criminal trial could take place would be 2022, five years after the fire. </p>
<p>Some seem to believe that the delay in launching prosecutions means that those responsible for the Grenfell tragedy won’t face justice, or that authorities are not taking the case seriously. In fact, the amount of time and resources the police are committing to the investigation suggests exactly the opposite. </p>
<p>The police <a href="https://www.theguardian.com/uk-news/2019/mar/06/grenfell-survivors-anger-as-police-say-no-charges-till-2021">are reportedly</a> considering a range of offences, including very serious ones such as <a href="https://theconversation.com/corporate-manslaughter-what-is-it-and-could-it-bring-justice-for-grenfell-tower-victims-79588">corporate manslaughter</a>. Corporate manslaughter cases take time to investigate properly because the offence is complex and can be difficult to prove. </p>
<h2>The long haul</h2>
<p>Looking at previous successful prosecutions, on average, it takes three years and one month from the date of a death for a corporate manslaughter case to be investigated, charges brought and the case decided in court. The longest running case, brought against <a href="https://www.bbc.co.uk/news/uk-england-manchester-35027530">Cheshire Gates & Automation Ltd</a> over the death of a six-year-old girl, took five years and four months from the date of death to sentencing. What’s more, all the previous successful cases have involved only one or two deaths. </p>
<p>Grenfell is a particularly complex case involving 72 deaths, so the investigation was always going to be a lot longer. Apparently, <a href="https://www.gov.uk/government/publications/letters-to-residents-following-the-grenfell-tower-fire-6-june-2018">460 companies</a> were involved in various work at Grenfell Tower over the years, and the police <a href="https://www.grenfelltowerinquiry.org.uk/hearings/procedural-hearing-1">have to analyse</a> over 31m documents, 2,500 pieces of evidence and 2,332 witness statements. </p>
<p>Aside from counter terrorism operations, the size of the investigation is unique, involving <a href="https://www.grenfelltowerinquiry.org.uk/hearings/procedural-hearing-1">187 police officers and civilian staff</a>. From a legal perspective, it’s reasonable to expect that an investigation of this size would take many years: Grenfell would represent, by a very large margin, the biggest and most complex corporate manslaughter case ever brought in the UK. </p>
<p>The police have said they need to wait until the final report of the Grenfell Tower <a href="https://www.grenfelltowerinquiry.org.uk/">public inquiry</a> is published before charges can be brought. This makes sense, as the inquiry may reveal evidence that is useful to the police. Indeed, the fact that the investigation is taking so long suggests that police are prioritising the investigation, and that they are contemplating the more serious charges campaigners have called for. </p>
<h2>Bringing charges</h2>
<p>Once the police have finished their investigation, they will hand their file over to the Crown Prosecution Service (CPS), which will decide what charges are brought. It’s not yet possible to say exactly what the CPS will decide, since it will depend on what evidence the police have found. But if it does proceed it seems likely that multiple charges will be brought against multiple defendants, as has happened before in various corporate manslaughter cases. </p>
<p>For example, corporate manslaughter charges could potentially be brought against the Royal Borough of Kensington and Chelsea council and the organisation that managed Grenfell Tower. Police have <a href="https://www.theguardian.com/uk-news/2017/jul/27/met-says-grenfell-council-may-have-committed-corporate-manslaughter">previously said</a> that there are reasonable grounds to suspect these organisations may have committed corporate manslaughter. These organisations could also be charged with health and safety offences. What’s more, individuals involved in these or other companies could possibly be charged with health and safety offences, or manslaughter. </p>
<p>To secure a conviction for corporate manslaughter, the prosecution has to prove the organisation was grossly negligent and that this led to the deaths during the fire. Gross negligence means that the level of care the organisation gave the victim fell far short of what could reasonably be expected. The prosecution will also have to prove that the organisation’s senior management played a substantial role. This is the key part of the police investigation, as it is often difficult to prove the involvement of senior management where the organisation in question is large and complex – like a local authority. </p>
<p>There have only been <a href="https://en.wikipedia.org/wiki/Corporate_Manslaughter_and_Corporate_Homicide_Act_2007">26 corporate manslaughter convictions</a> since the offence was introduced 11 years ago, and almost all of them involved <a href="https://www.healthandsafetyatwork.com/feature/ten-years-on">small companies</a>. The CPS has <a href="https://www.bbc.co.uk/news/uk-wales-27923572">failed to secure convictions</a> in some corporate manslaughter cases in the past, so the police will want to ensure the evidence is as strong as possible. </p>
<h2>Justice for Grenfell</h2>
<p>If an organisation is found guilty of corporate manslaughter in the Grenfell case, it could receive a fine of millions of pounds – perhaps the biggest in the history of the offence. Individuals could face personal fines or be imprisoned if they are found guilty. </p>
<p>At this time, the police are between a rock and a hard place. If they had rushed to bring prosecutions, they might not have been able to secure all the evidence needed. If the defendants were then found not guilty, the police would have been blamed for botching the investigation. But they are also facing criticism for taking the time they need to carry out a thorough investigation, in order to give any prosecution the best chance of success. </p>
<p>The delay in bringing charges is understandably frustrating, but hasty prosecutions could lead to those at fault being found not guilty and escaping punishment. The police and CPS need to be given time to do their jobs properly to ensure justice is done for the victims of Grenfell.</p><img src="https://counter.theconversation.com/content/113215/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Victoria Elizabeth Roper does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Police have to analyse over 31m documents, 2,500 pieces of evidence and 2,332 witness statements. This makes Grenfell the biggest and most complex corporate manslaughter case ever brought.Victoria Elizabeth Roper, Senior Lecturer in Law/Solicitor, Northumbria University, NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1127392019-03-04T11:22:57Z2019-03-04T11:22:57ZSally Challen: what quashing of murder conviction means for similar cases alleging coercive control<p>The quashing of Sally Challen’s conviction <a href="https://www.bbc.co.uk/news/uk-england-47407204">by the Court of Appeal</a> for murdering her husband Richard in 2010 will give hope to those who believe that abuse can and should reduce the level of blame afforded to those who kill their abusers. Criminal courts have traditionally been slow to recognise the effect abuse has on victims and Challen will now face a retrial for murder – one that should take into account the alleged coercive control she is believed to have suffered during her marriage.</p>
<p>A person coerces and controls a victim using a pattern of behaviour that isolates them from sources of support, subordinates them and makes them dependent upon the abuser. Using coercive or controlling behaviour towards an intimate partner or family member became a criminal offence under in the <a href="http://www.legislation.gov.uk/ukpga/2015/9/section/76/enacted">Serious Crime Act 2015</a>. In one sense Challen’s case has been successful at raising the profile of this kind of behaviour, now recognised as a common feature of many domestic abuse relationships. And leave to appeal against her conviction was granted in 2018, partly based on the argument that there had been significant advances in society’s understanding about domestic abuse, and particularly the use of coercive control. </p>
<h2>Avenues of defence</h2>
<p>But there are limits to the Challen appeal decision. The reported <a href="https://www.theguardian.com/law/2019/feb/28/sally-challen-wins-appeal-against-conviction-for-murdering-husband">comments of the appeal judges</a> suggest that the court quashed Challen’s conviction for murder not so much for the fact she allegedly endured coercive control, but on the basis that she had suffered from two mental disorders which were not known at her trial. Should this be the case, then it will be a disappointment for campaigners trying to raise awareness of the impact of coercive control.</p>
<p>At the time of the killing in 2010, relevant provisions under the <a href="https://www.legislation.gov.uk/ukpga/2009/25/section/40">Coroners and Justice Act 2009</a> had not come into force, meaning that the legal defences available to Challen were either provocation or diminished responsibility. The former requires a sudden loss of control in response to provocation, whereas diminished responsibility is established where the defendant experiences an abnormality of mind at the time they killed. But neither defence was successful in Challen’s case.</p>
<p>A Court of Appeal decision quashing Challen’s conviction on the basis of a mental disorder that was not known at the time of her trial means that once again defending women who kill relies on showing they were “mad” rather than centring on the behaviour that caused them to kill. </p>
<p>Coercive control <a href="https://doi.org/10.1177/0022018318814362">advocates</a> have <a href="https://doi.org/10.1111/hojo.12227">argued</a> that the effects of being subject to a pattern of continuous subjugation in an intimate relationship make all targeted victims vulnerable. They argue that this vulnerability is not only acute for those who are able to show that they have a mental disorder. <a href="https://www.refuge.org.uk/wp-content/uploads/2018/07/domestic-abuse-suicide-refuge-warwick-july2018.pdf">Research</a> illustrates the toll domestic abuse has upon victims. The number of suicides by women who are victims of domestic violence in England and Wales is estimated to exceed those killed by their partners or ex-partners. Attempted suicides by women subject to domestic violence <a href="https://doi.org/10.1177/002087289704000216">are five times more prevalent</a> compared to those not subject to it.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/261636/original/file-20190301-110107-4oxe7o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/261636/original/file-20190301-110107-4oxe7o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=428&fit=crop&dpr=1 600w, https://images.theconversation.com/files/261636/original/file-20190301-110107-4oxe7o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=428&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/261636/original/file-20190301-110107-4oxe7o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=428&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/261636/original/file-20190301-110107-4oxe7o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=538&fit=crop&dpr=1 754w, https://images.theconversation.com/files/261636/original/file-20190301-110107-4oxe7o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=538&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/261636/original/file-20190301-110107-4oxe7o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=538&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Spotting the signs of coercive control.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/download/confirm/588576446?size=medium_jpg">Artsplav/Shutterstock</a></span>
</figcaption>
</figure>
<h2>Persuading a court</h2>
<p>The decision to quash Challen’s conviction may have limited use to the majority of victims of coercive control who enter the criminal justice system as defendants, because it specifically concerns avenues for defence in instances of murder as <a href="https://doi.org/10.1177/0022018318814362">I’ve previously argued</a>.</p>
<p>Where there is evidence of physically abusive behaviour, self-defence may be used as a defence where the abused person attacks the abuser. However, the force used in response to the perceived threat must be reasonable, something that may not be appreciated by members of a jury who may not understand the meanings behind the gestures used to threaten the victim. </p>
<p>In cases where the coercive and controlling behaviour is predominantly psychological, it will also be very difficult to persuade a court that force was needed to escape the abuser. Currently, if an abused person commits a crime as a result of being coerced or controlled there is no defence in law for this. Although on the face of it duress may be a possible defence, it has been interpreted too narrowly for the coerced and controlled defendant to use.</p>
<p>The high-profile nature of Challen’s case and the decision to order a retrial does carry hope for other future cases that have some similarities to Challen’s. The first opportunity to test its reach will be the appeal case of <a href="https://www.bbc.co.uk/news/uk-england-leicestershire-45733551">Emma-Jayne Magsun</a>, who was also granted leave to appeal her murder conviction in November 2018. The Challen case has raised the profile of coercive control, but juries still need to be clearly informed about the impact this form of abuse has on victims.</p><img src="https://counter.theconversation.com/content/112739/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Vanessa Bettinson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Sally Challen, convicted of murdering her husband in 2010, will now face a retrial. A lawyer explains the legal significance of the ruling.Vanessa Bettinson, Professor of Criminal Law and Criminal Justice , De Montfort UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1044292018-10-19T10:42:58Z2018-10-19T10:42:58ZAnti-fracking activists released on appeal – but criminalisation of nonviolent protest is new norm<p>Three men who were imprisoned after blocking access to a fracking site in Lancashire have been released <a href="https://www.theguardian.com/environment/2018/oct/17/court-quashes-excessive-sentences-of-fracking-protesters">after an appeal</a>, a decision met with joyous relief by campaigners. These anti-fracking activists initially received lengthy prison sentences for “causing a public nuisance” – prompting 1,500 academics to sign a critical <a href="https://docs.google.com/forms/d/e/1FAIpQLScmXGgV93AycjcfbWmWBQ_7eYxbI69n5PIQhM_0B9kF1qMSaA/viewform">open letter</a> in response. Their sentences were quashed as “excessive” by the Court of Appeal on October 17. </p>
<p>But it’s wrong to frame this case as an aberration followed by a simple victory for common sense. In fact, the harsh treatment of these activists fits into a larger pattern through which non-violent protest has been criminalised in the UK. </p>
<p>According to a 2017 government <a href="https://www.gov.uk/government/statistics/energy-and-climate-change-public-attitudes-tracker-wave-22">survey</a>, only 16% of the public support fracking – the fracturing of underground rocks, to access oil and gas. Many view it as a high-risk, low-reward practice – and scientific research suggests a link between fracking and <a href="https://theconversation.com/can-fracking-cause-bigger-more-frequent-earthquakes-16056?sr=3">earthquakes</a>, as well as risks of <a href="http://advances.sciencemag.org/content/4/8/eaar5982">water shortages</a> and damage to the <a href="https://cdn.friendsoftheearth.uk/sites/default/files/downloads/HMW%20REPORT%20FINAL.pdf">countryside</a>. Environmentalists highlight the bigger issues of climate change and the desperate need to adopt alternatives to fossil fuels. </p>
<p>For these reasons, the protesters peacefully <a href="https://www.bbc.co.uk/news/uk-england-lancashire-45652464">blocked a convoy</a> in July 2017 bringing equipment into Preston New Road fracking site in Lancashire. They did this by sitting on top of lorries. Green Party MP Caroline Lucas <a href="https://www.theguardian.com/commentisfree/2018/sep/26/jailing-fracking-protesters-fight-caroline-lucas">described</a> the crackdown, which entailed severe 15 to 16-month custodial sentences given to three of the protesters, as “an act of desperation from the fracking industry and the government”. Since then protesters have adopted <a href="https://www.theguardian.com/environment/video/2018/oct/15/fracking-protesters-attempt-blockade-lancashire-site-video-report">similar tactics</a> at the site, as fracking started in the UK again on October 15 for the first time since 2011. </p>
<p>Fracking activists often face state repression on the ground. <a href="http://researchonline.ljmu.ac.uk/3140/">Research</a> carried out at the Barton Moss anti-fracking camp in Greater Manchester between 2013-14 found that despite an overwhelmingly peaceful campaign, the scale and in some instances violent nature of the policing operation undermined the right to peaceful protest. But police incursions into the rights of protesters have extended further.</p>
<h2>Spy cops</h2>
<p>In recent years, evidence has come to light of abuse by undercover officers who have infiltrated the environmentalist and other social movements since 1968, including the Stephen Lawrence Justice Campaign. A recently published <a href="https://www.theguardian.com/uk-news/ng-interactive/2018/oct/15/uk-political-groups-spied-on-undercover-police-list">database</a> documents the scale, scope and character of the undercover surveillance of political activism. The abuse uncovered so far by activists, independent researchers such as the <a href="http://undercoverresearch.net/">Undercover Research Group</a> and journalists including The Guardian’s <a href="https://www.theguardian.com/profile/robevans">Rob Evans</a>, demonstrates the criminalisation of protest through intimate state surveillance. </p>
<p>Some officers had sexual relationships with their targets in order to seem more trustworthy, a tactic one activist “Jacqui” described as like having been “<a href="https://www.theguardian.com/uk/2013/jun/24/undercover-police-spy-girlfriend-child">raped by the state</a>”. Undercover officer Bob Lambert fathered a child with “Jacqui”, before disappearing from her life without explanation.</p>
<p>Another common tactic was adopting dead babies’ identities to build a believable “paper trail” should targets become suspicious. This is something that has horrified and hurt the <a href="https://www.theguardian.com/uk-news/2018/sep/24/we-had-fond-memories-of-our-brother-but-the-police-have-made-them-dirty">families of these children</a>. A myriad of other practices have been identified, ranging from officers <a href="https://www.theguardian.com/uk-news/2018/feb/20/police-admit-officers-role-in-mass-release-of-mink-by-protesters">breaking the law</a> while undercover, to appearing in court under a <a href="https://www.channel4.com/news/undercover-police-bob-lambert-exclusive">false identity</a>. These practices have resulted in a number of possible miscarriages of justice. It is suspected that more than <a href="https://www.tandfonline.com/doi/abs/10.1080/14742837.2018.1480934">1,000 groups were affected</a>. </p>
<p>A key question in the undercover policing case has been how much senior officers knew about or encouraged the most troubling tactics of these officers. Activists have denounced the government-ordered, yet slow-moving, <a href="https://www.ucpi.org.uk/about-the-inquiry/">Undercover Policing Inquiry</a>, calling for the resignation of its chair, <a href="https://www.bbc.co.uk/news/uk-43487941">John Mitting</a>. Critics allege the lack of transparency, particularly around the anonymity of the police officers during the inquiry, fits into this pattern of state repression. </p>
<p>An Investigatory Powers Tribunal in a case brought by Kate Wilson, an activist deceived into a long-term sexual relationship by undercover officer Mark Kennedy, has been presented with <a href="https://www.theguardian.com/uk-news/2018/sep/21/met-bosses-knew-of-relationship-deception-by-police-spy-mark-kennedy">new evidence</a> in recent months that Kennedy’s commanding officers knew of his relationship with Wilson and did not intervene. This adds weight to the belief that a lack of concern for the human rights of protesters is institutionally or culturally endemic in the police.</p>
<h2>Strike rights curtailed</h2>
<p>Patterns of criminalisation also exist elsewhere. The 2016 <a href="http://www.legislation.gov.uk/ukpga/2016/15/contents/enacted">Trade Union Act</a> dramatically <a href="https://academic.oup.com/ilj/article/45/3/299/1750051">curtails</a> labour rights in Britain. It imposes new higher strike ballot thresholds, including a double threshold for “important public services” such as teachers and energy workers, making it much more difficult to go on strike legally. It also requires unions to give police the names of “picket supervisors”, and makes it easier for employers to use courts to stop strikes.</p>
<p>The 2017 <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/594788/Code_of_Practice_on_Picketing.pdf">Code of Practice</a> on picketing asks unions to ensure that “no more than six people” are present per workplace entrance, as any more would give rise to “fear and resentment”. These policies were introduced despite the fact that fewer days than ever were <a href="https://www.ons.gov.uk/releases/labourdisputesintheuk2016">lost to industrial action in 2016</a>. This is another way in which the right to nonviolent protest has been eroded.</p>
<p>The privatisation of public space is another means through which rights have been curtailed. The large-scale selling off of public land, and growing prevalence of pseudo-public space, has been condemned by public figures including Labour leader <a href="https://www.theguardian.com/cities/2017/jul/25/corbyn-joins-calls-reclaim-uk-public-space-from-corporate-owners">Jeremy Corbyn and Liberal Democrat leader Vince Cable</a>. The use of private security, as well as so-called “<a href="https://www.bbc.co.uk/news/uk-england-lancashire-44794429">civil injunctions</a>” by private companies who find themselves the focus of activism, shows the way that private firms can exploit the system to their own advantage, installing what effectively amount to protest exclusion zones within communities.</p>
<p>The vocal criticism of the verdict and subsequent release of the Lancashire fracking protesters does suggest that opposition is growing. </p>
<p>The ongoing case of the so-called <a href="https://www.bbc.co.uk/news/uk-england-essex-45724040">Stansted 15</a> will add to the overall picture, whatever the result. The defendants allegedly prevented a Home Office charter plane from taking off in March 2017 in order to stop the migrants on board from being deported. They are standing trial <a href="https://www.essexlive.news/news/essex-news/live-stansted-15-trial-updates-2064632">on terror charges</a> under the Aviation and Maritime Security Act and could face potentially lengthy jail sentences if convicted. </p>
<p>It’s time we acknowledged this pattern of creeping criminalisation of protest – in the courts and in the streets – as a serious threat to our freedom and democracy.</p><img src="https://counter.theconversation.com/content/104429/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nathan Stephens-Griffin does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The criminalisation of fracking protesters is not the exception, it has become the rule.Nathan Stephens-Griffin, Lecturer in Criminology, Northumbria University, NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1034662018-09-26T11:03:53Z2018-09-26T11:03:53ZEight cases from across history which still shape the law today<figure><img src="https://images.theconversation.com/files/238095/original/file-20180926-48662-2pomzp.jpg?ixlib=rb-1.1.0&rect=436%2C255%2C1331%2C765&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/Royal_Courts_of_Justice#/media/File:LONDON_ILLUSTR(1873)_p2.087_THE_NEW_LAW_COURTS.jpg">British Library/Wikimedia Commons.</a></span></figcaption></figure><p>New students are streaming into law schools across the country. But to become the next generation of lawyers, judges and activists, they’ll first need to read through a mountain of case law. In case law, judges define what acts of parliament actually mean, explain the common law and resolve disputes between citizens, organisations and sometimes state institutions. </p>
<p>Newspapers occasionally publish <a href="https://www.theguardian.com/law/2013/dec/04/law-cases-essential-student">a list</a> of the most important cases for students to be aware of. But it’s not just students who could benefit from learning about the law – after all, cases decided hundreds of years ago can set the precedent for decisions that the courts in England and Wales make today. </p>
<p>Here’s my pick of some of the most important cases throughout history: ones that can teach us all something about how the law mirrors social and political attitudes, while revealing the principles and patterns that make up the country’s version of justice.</p>
<hr>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/237929/original/file-20180925-149970-num4nw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/237929/original/file-20180925-149970-num4nw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/237929/original/file-20180925-149970-num4nw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=1014&fit=crop&dpr=1 600w, https://images.theconversation.com/files/237929/original/file-20180925-149970-num4nw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=1014&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/237929/original/file-20180925-149970-num4nw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=1014&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/237929/original/file-20180925-149970-num4nw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1274&fit=crop&dpr=1 754w, https://images.theconversation.com/files/237929/original/file-20180925-149970-num4nw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1274&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/237929/original/file-20180925-149970-num4nw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1274&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">King James I: could you not?</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Portrait_of_King_James_I_%26_VI_(1618-1620).jpg">Wikimedia Commons.</a></span>
</figcaption>
</figure>
<h2>1. The Case of Proclamations, 1610</h2>
<p>Over 400 years ago, the chief justice, Sir Edward Coke, <a href="https://www.bailii.org/ew/cases/EWHC/KB/1610/J22.html">ruled that</a> King James I could not prohibit new building in London without the support of parliament. King James believed that he had a divine right to make any laws that he wished. But the court opposed his view, and decided that the monarchy could not wield its power in this arbitrary way. </p>
<p>By the end of that century, the <a href="http://www.bbc.co.uk/history/british/civil_war_revolution/glorious_revolution_01.shtml">Glorious Revolution</a> laid the foundation for today’s constitutional monarchy, whereby whoever is king or queen respects the law-making authority of the elected parliament. </p>
<hr>
<h2>2. Entick v Carrington, 1765</h2>
<p>Author and schoolmaster John Entick was suspected of writing a libellous pamphlet against the government. In response, the secretary of state sent Nathan Carrington, along with a group of other king’s men, to search Entick’s house for evidence. Entick then sued the men for trespass. </p>
<p>The court <a href="https://lawcaseuk.com/constitutional-and-administrative-law/">decided that</a> the secretary of state did not have the legal authority to issue a search warrant, and therefore Carrington had trespassed. This case reflects the principle that “no man is above the law” – not even the secretary of state. To this day, law enforcement agencies may only do what the law allows.</p>
<hr>
<h2>3. R v Dudley and Stephens, 1884</h2>
<p>In this case, the survivors of a shipwreck who killed and ate the youngest and weakest crew member were <a href="https://swarb.co.uk/regina-v-dudley-and-stephens-qbd-9-dec-1884/">prosecuted for murder</a>. Their defence was based on “necessity” – that they needed to eat the boy, as they were unlikely to survive and the boy probably would have died anyway. </p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/237934/original/file-20180925-149961-4006bu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/237934/original/file-20180925-149961-4006bu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=495&fit=crop&dpr=1 600w, https://images.theconversation.com/files/237934/original/file-20180925-149961-4006bu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=495&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/237934/original/file-20180925-149961-4006bu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=495&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/237934/original/file-20180925-149961-4006bu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=623&fit=crop&dpr=1 754w, https://images.theconversation.com/files/237934/original/file-20180925-149961-4006bu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=623&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/237934/original/file-20180925-149961-4006bu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=623&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Tom Dudley’s own sketch of their boat, the Mignonette.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/R_v_Dudley_and_Stephens#/media/File:Mignonette.jpg">Wikimedia Commons.</a></span>
</figcaption>
</figure>
<p>It may have been a <a href="https://www.washingtonpost.com/archive/lifestyle/1984/08/03/the-law-of-the-sea-38/fd67691f-9c35-48d4-95e3-3db773142d6d/?utm_term=.75e284c01f80">“custom of the sea”</a> that cannibalism was allowed under such circumstances, but the defendants were found guilty on the basis that all life is equal – the law expected them to die, rather than kill another. </p>
<p>But the public was sympathetic to the defendants, and their sentences were later commuted from death to six months imprisonment. The boy was named Richard Parker, as is the tiger in the Man Booker prize-winning novel <a href="https://www.goodreads.com/book/show/4214.Life_of_Pi">Life of Pi</a>.</p>
<hr>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/237924/original/file-20180925-149967-afpj7d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/237924/original/file-20180925-149967-afpj7d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/237924/original/file-20180925-149967-afpj7d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=921&fit=crop&dpr=1 600w, https://images.theconversation.com/files/237924/original/file-20180925-149967-afpj7d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=921&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/237924/original/file-20180925-149967-afpj7d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=921&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/237924/original/file-20180925-149967-afpj7d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1157&fit=crop&dpr=1 754w, https://images.theconversation.com/files/237924/original/file-20180925-149967-afpj7d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1157&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/237924/original/file-20180925-149967-afpj7d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1157&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A newspaper advertisement for the carbolic smoke ball.</span>
<span class="attribution"><a class="source" href="https://upload.wikimedia.org/wikipedia/commons/7/7e/Carbolic_smoke_ball_co.jpg">Wikimedia Commons.</a></span>
</figcaption>
</figure>
<h2>4. Carlill v Carbolic Smoke Ball Co, 1893</h2>
<p>Mrs Carlill <a href="http://www.bailii.org/ew/cases/EWCA/Civ/1892/1.html">sued the manufacturer</a> of the carbolic smoke ball – a device for preventing colds and flu – which had promised a reward of £100 for any one catching flu following the use of its product but then refused to pay out. </p>
<p>The court decided that this promise, together with Mrs Carlill’s use of the product as directed, amounted to a legally binding contract and she was entitled to the reward. The case explores many of the principles that must be present in modern day contracts, such as offer and acceptance, before we can make legally enforceable agreements between each other. Yet this most famous of cases may never have been brought at all, had Mrs Carlill not been married to a solicitor.</p>
<hr>
<h2>5. Donoghue and Stevenson, 1932</h2>
<p>In a case originating in Scotland, Mrs Donoghue was given a bottle of ginger beer which <a href="http://news.bbc.co.uk/1/hi/business/8367223.stm">allegedly contained</a> the decomposed remains of a snail. She claimed to have suffered shock and gastroenteritis as a result. But as she had not bought the drink herself, she had no contract on which to sue. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/237936/original/file-20180925-149973-6nl34j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/237936/original/file-20180925-149973-6nl34j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/237936/original/file-20180925-149973-6nl34j.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/237936/original/file-20180925-149973-6nl34j.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/237936/original/file-20180925-149973-6nl34j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/237936/original/file-20180925-149973-6nl34j.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/237936/original/file-20180925-149973-6nl34j.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Can I get a refund?</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/close-snail-climbing-on-glass-bottle-632175992?src=kxGTeeD-G1Ff5e6u_kd3rg-1-53">Shutterstock.</a></span>
</figcaption>
</figure>
<p>Nevertheless, the court <a href="http://www.bailii.org/uk/cases/UKHL/1932/100.html">extended the law</a> of negligence to require reasonable care towards those likely to be affected by a person’s or company’s actions. Was there really a snail? We don’t know for sure, as Mr Stevenson died before the evidence could be heard. </p>
<hr>
<h2>6. Fagan v Metropolitan Police Commissioner, 1969</h2>
<p>To be guilty of a criminal offence, there often needs to be unlawful act accompanied by a guilty state of mind, such as a criminal intent. So, having accidentally driven his car onto a policeman’s foot, did Mr Fagan commit an assault when he decided not to remove it? </p>
<p>Mr Fagan suggested not because he had no criminal intent at the time the car first went on to the foot, but <a href="https://www.youtube.com/watch?v=nDv1hxtCbGQ">the court held</a> that deciding to leave the car there was a combination of act and intention, which meant he was <a href="https://www.bailii.org/ew/cases/EWHC/QB/1968/1.html">guilty of the offence</a>.</p>
<hr>
<h2>7. R v R, 1991</h2>
<p>The law is constantly evolving to meet changing social attitudes. In this case, the House of Lords swept away the common law rule that a man could not be guilty of raping his wife. The previous rule was based on a 1736 pronouncement that:</p>
<blockquote>
<p>By their mutual matrimonial consent and contract the wife hath given herself up to her husband, consent which she cannot retract.</p>
</blockquote>
<p>The House of Lords <a href="http://www.bailii.org/uk/cases/UKHL/1991/14.html">ruled that</a> for modern times, marriage is a partnership of equals and any other suggestion was “quite unacceptable”.</p>
<hr>
<h2>8. The Belmarsh case, 2004</h2>
<p>The Human Rights Act empowered judges to review acts of parliament, to check if they are compatible with the European Convention on Human Rights. Using this power, the House of Lords <a href="http://news.bbc.co.uk/1/hi/uk/4100481.stm">ruled that</a> a statute which allowed terrorist suspects to be detained indefinitely without trial breached the suspects’ human rights. </p>
<p><a href="https://publications.parliament.uk/pa/ld200405/ldjudgmt/jd041216/a&others.pdf">The case</a> shows how modern courts ask not just whether government action is authorised by law, but also whether it is compatible with our rights. Parliament amended the law as a result.</p>
<hr>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/237944/original/file-20180925-149964-obaf7c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/237944/original/file-20180925-149964-obaf7c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=601&fit=crop&dpr=1 600w, https://images.theconversation.com/files/237944/original/file-20180925-149964-obaf7c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=601&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/237944/original/file-20180925-149964-obaf7c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=601&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/237944/original/file-20180925-149964-obaf7c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=756&fit=crop&dpr=1 754w, https://images.theconversation.com/files/237944/original/file-20180925-149964-obaf7c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=756&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/237944/original/file-20180925-149964-obaf7c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=756&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Gina Miller, outside court.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-united-kingdom-november-3-2016-509938600?src=BKFLcwO5Rn_t4ozkoFUbAg-1-1">Jane Campbell/Shutterstock.</a></span>
</figcaption>
</figure>
<p>In 2016, Gina Miller brought a case against the UK government, claiming that it couldn’t trigger Article 50 – and therefore Brexit – without an act of parliament. <a href="https://theconversation.com/government-loses-brexit-court-case-so-what-happens-now-71824">Ruling in Miller’s favour</a> in 2017, the Supreme Court drew on the 1610 case of proclamations. So there’s no doubt that even the oldest cases still have the power to shape society today.</p><img src="https://counter.theconversation.com/content/103466/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nicholas Clapham is author of non-profit website lawcaseuk.com.</span></em></p>From cannibalism to carbolic smoke balls, these are some of the fascinating cases that have made the law of England and Wales what it is today.Nicholas Clapham, Senior Teaching Fellow, School of Law, University of SurreyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/941372018-03-29T10:10:50Z2018-03-29T10:10:50ZParole for ‘black cab rapist’ John Worboys overturned in victory for crowdfunded judicial review<p>In a landmark judicial review case, the <a href="https://www.judiciary.gov.uk/judgments/the-queen-on-the-application-of-dsd-and-nbv-ors-v-the-parole-board-of-england-and-wales-ors-and-john-radford/">High Court</a> has quashed the decision of the Parole Board to allow the release of the “black cab rapist” John Worboys. </p>
<p>Worboys, who is now known as John Radford, was <a href="https://www.theguardian.com/uk/2009/apr/21/john-worboys-cab-driver-jail">convicted</a> in 2009 of 19 serious sexual offences, including rape, against 12 victims. He was sentenced to an indeterminate prison sentence due to the risk he posed to the public. At that time, the judge specified that he should serve a minimum of eight years.</p>
<p>In January, it emerged the Parole Board <a href="https://www.telegraph.co.uk/news/2018/01/04/taxi-rapist-john-worboys-released-prison/">had agreed</a> to release him. He will now remain in prison until another Parole Board hearing reviews his case. </p>
<p>The claimants, two unnamed victims of Worboys, could only challenge the parole decison by way of a <a href="https://www.judiciary.gov.uk/you-and-the-judiciary/judicial-review/">judicial review</a>. This process allows a person or group of persons to request that a court review the lawfulness of a decision or action made by a public body.</p>
<p>This was the first time that a decision to release a prisoner had been challenged in the courts. Previous cases had been brought only by prisoners appealing against decisions to deny parole. The case was also notable as the claimants underwrote their legal costs entirely through <a href="https://www.crowdjustice.com/case/challenge-worboys-release/">crowdfunded resources</a>. </p>
<h2>‘Irrational’ behaviour</h2>
<p>The court decided that the Parole Board behaved “irrationally” by not seeking more information, both for the offences for which Worboys was charged and for other potential offences. The board had in its possession information suggesting that Worboys may have committed crimes against more than 80 victims but failed to make any further inquiry into this. </p>
<p>In his evidence before the Parole Board, the High Court heard, Worboys had confined his acceptance of guilt to crimes against the 12 victims for which he had been convicted. The court felt that had the Parole Board sought the additional information available then this might have undermined the “credibility and reliability” of the “limited way in which he described his offending”.</p>
<p>This additional available information included references to separate proceedings brought by the claimants against the Metropolitan Police. At the time of the Parole Board hearing on December 26, 2017, a Court of Appeal <a href="http://www.bailii.org/ew/cases/EWCA/Civ/2015/646.html">ruling</a> relating to that case was available. In February 2018, in the same case against the Metropolitan Police, the <a href="https://www.supremecourt.uk/cases/docs/uksc-2015-0166-judgment.pdf">Supreme Court</a> ruled that the claimants’ human rights were breached by the failure to conduct an effective investigation into their complaints against Worboys. An effective investigation is required by Article 3 of the <a href="https://www.echr.coe.int/Documents/Convention_ENG.pdf">European Convention of Human Rights</a>. </p>
<p>The ruling against the Parole Board will not be appealed but that does not mean that Worboys will stay in prison – this would be beyond the power of the High Court in a judicial review. </p>
<p>The court has sent the matter back to the Parole Board for fresh consideration before a panel made up of different members. When that takes place, it will be in different circumstances to the first parole hearing and so it’s possible the outcome could be different.</p>
<h2>More transparency on parole</h2>
<p>In a second part to its ruling, the court decided that rules preventing information about parole hearings from being made public breached principles of open justice, which require the public to receive information about court proceedings.</p>
<p>In a swift response, the justice secretary, David Gaulke, welcomed the ruling and <a href="https://www.gov.uk/government/news/statement-from-the-justice-secretary-on-judgment-re-john-worboys">announced</a> that he would soon be abolishing the restriction – known as Rule 25 – on this. This could mean the Parole Board can make summaries of its decisions available to victims. He also said he would “bring forward proposals for Parole Board decisions to be challenged” without the need for judicial review.</p>
<p>The future Parole Board hearing in the Worboys case will also take place under the auspices of a new head after the departure of Nick Hardwick, who resigned on being told by Gaulke that his position was untenable. In his <a href="https://www.gov.uk/government/news/letter-of-resignation-from-nick-hardwick-to-the-secretary-of-state-for-justice">resignation letter</a>, Hardwick acknowledged mistakes but was clearly reluctant to resign. He said:</p>
<blockquote>
<p>I had no role in the decision of the panel in the case and believe I am capable of leading the Parole Board through the changes, many of which I have advocated, that will now be necessary.</p>
</blockquote>
<p>This case demonstrates how important the process of judicial review is as a mechanism by which individuals can use the courts to challenge the decisions of government bodies. It reaffirms important constitutional principles such as open justice – even though in this case the access to justice was only made possible by crowdfunding sparked by public interest.</p><img src="https://counter.theconversation.com/content/94137/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nicholas Clapham does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>As a result of the ruling, more detail of future Parole Board decisions should be available to victims.Nicholas Clapham, Teaching Fellow, School of Law, University of SurreyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/931572018-03-16T17:04:58Z2018-03-16T17:04:58ZPrisons will only improve if the public demands change<p>The state of prisons in England and Wales is dangerous and deeply concerning. According to the government’s own figures, <a href="https://www.theguardian.com/society/2018/feb/17/uk-brutal-prisons-failing-violence-drugs-gangs">assaults rose</a> from 9,440 in 2000 to 28,165 in 2017 – an average of 77 per day. Self-harm levels are the <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/676144/safety-in-custody-q3-2017.pdf">highest ever recorded</a>. A <a href="https://www.justiceinspectorates.gov.uk/hmiprisons/wp-content/uploads/sites/4/2017/10/Findings-paper-Living-conditions-FINAL-.pdf">report</a> by HM Inspectorate of Prisons in 2017 showed that living conditions are filthy. Prisoners lack basic sanitary supplies. The daily food budget per prisoner is £2.02.</p>
<p>I spent nine years working in prison psychology and witnessed the human consequences of our prison conditions at first hand. They are unacceptable in any society which cares about human rights. I left because I cannot help people leave behind a criminal lifestyle while prisons are in their current state. I cannot help when my clients arrive to see me fearing assault en route, lacking toilet roll or toothpaste, or feeling ill and scared because they had not been given their basic medication. I was employed to help people thrive, not simply survive.</p>
<p>So what is being done? The new prisons minister, Rory Stewart, <a href="https://www.theguardian.com/commentisfree/2018/feb/17/rory-stewart-reform-prisons-crisis?utm_source=dlvr.it&utm_medium=twitter">refers confidently</a> to the recruitment drive for 2,500 extra prison officers. But since 2010, staff numbers have been <a href="http://www.prisonreformtrust.org.uk/Portals/0/Documents/Bromley%20Briefings/Autumn%202017%20factfile.pdf">cut by 5,620</a>. Therefore, the government is returning less than half the staff they took. It can never return the decades of experience lost, by employing new recruits. “Jailcraft”, as it is called inside, takes time to learn. </p>
<p>By 2019, the Ministry of Justice will have had its <a href="http://thejusticegap.com/2017/11/crisis-full-blown-emergency-ministry-justice-faces-cuts/">budget reduced</a> by £3.7 billion since the drive for austerity began. Essentially, an already broken system is set to be broken further, with only lip service paid to reform.</p>
<h2>Prisoners or citizens?</h2>
<p>The sad truth is that the plight of prisoners does not inspire the same kind of public outcry as crises in education, the NHS or the care system. Prisoners are not seen as “citizens” but as “criminals” and “offenders”, in prison to be punished. If poor and dangerous living conditions form part of that punishment then so much the better – or so some think.</p>
<p>So, without public pressure, there is simply not the same level of ministerial concern with prisons, as with other public services. The government is regularly informed and lobbied by organisations such as the <a href="http://www.prisonreformtrust.org.uk/">Prison Reform Trust</a> and the <a href="https://howardleague.org/">Howard League for Penal Reform</a> about the need for prison and justice reform. But there is no real incentive to allocate the money and resources needed while voters are silent, unconcerned, or overtly punitive in their views.</p>
<p>To garner public support, a fundamental change in thinking is needed. Prisoners are currently seen as outside of society, having offended against it. And yet with only <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/655150/Offender_Management_Statistics_Bulletin_Q2_2017.pdf">59 whole-term lifers</a> imprisoned in England and Wales, 99.9% of the <a href="https://www.gov.uk/government/statistics/prison-population-figures-2018">83,899 people now imprisoned</a> will one day be released. Whether we like it or not, they are part of our society. </p>
<p>We cannot expect prisoners to willingly conform to the laws and duties we desire them to if we simultaneously send them the message that they are excluded from the society that makes those laws and duties. By seeing prisoners as anything less than fellow citizens, the cycle of reoffendng that people wish to prevent, is actually continually reinforced. In my work in prisons I was frequently asked by more perceptive prisoners: “How can everybody expect me to be humane when I am treated inhumanely?” It was a difficult question to answer. </p>
<p>Decades of research show that – broadly speaking – prisoners who are successfully reintegrated into society are <a href="http://www.sccjr.ac.uk/wp-content/uploads/2012/11/Report_2010_03_-_Changing_Lives.pdf">less likely to continue reoffending</a>. The government is neither ideologically or practically inclined to make the changes really needed to achieve this, while public opinion remains punitive. </p>
<p>A solution is needed that starts in society – and in local communities. And it starts with concern. </p>
<h2>The real stories</h2>
<p>It starts with stories, with connection. We are fed a steady media diet of crime dramas about murderers and rapists of the most extreme variety. This is an unrepresentative picture of people in prison: <a href="http://www.prisonreformtrust.org.uk/Portals/0/Documents/Bromley%20Briefings/Autumn%202017%20factfile.pdf">71% are there for a non-violent offence.</a> Those who are there for violence are much more complex than their crudely stereotyped media counterparts. Their <a href="http://www.prisonreformtrust.org.uk/Portals/0/Documents/Bromley%20Briefings/Autumn%202017%20factfile.pdf">stories</a> need to be heard: of parental abuse (29%), neglect (24%), violence in the home (41%), school exclusion (42%), mental health problems (41%), addiction (86%), homelessness (15%) and most forms of <a href="http://webarchive.nationalarchives.gov.uk/+/http:/www.cabinetoffice.gov.uk/media/cabinetoffice/social_exclusion_task_force/assets/publications_1997_to_2006/reducing_summary.pdf">social</a> and <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/278837/prisoners-childhood-family-backgrounds.pdf">familial</a> adversity.</p>
<p>So too do the stories of triumph against odds which many of us would struggle to overcome. Prisons are full of <a href="https://www.koestlertrust.org.uk">artists</a>, <a href="https://www.theguardian.com/profile/erwinjames">writers</a>, <a href="https://www.shaw-trust.org.uk/Media-policy/News/April-2016/New-Prison-Employment-Scheme-Sees-100-Success-Rat">hard grafters</a>, <a href="https://finecellwork.co.uk">skilled craftsman</a> and <a href="https://www.standard.co.uk/news/london/angell-town-the-exgang-members-who-have-turned-their-lives-around-and-are-inspiring-others-to-do-the-a3071326.html">potential future leaders</a>. Many of them meet immense challenges with determination, integrity and good humour. They <a href="https://www.northumberlandgazette.co.uk/news/funds-raised-at-prison-to-aid-the-work-of-charity-1-8302606">fundraise</a>. They <a href="https://www.manchestereveningnews.co.uk/whats-on/food-drink-news/clink-cafe-manchester-prison-restaurant-14373100">give back to their communities</a>. They <a href="https://www.dailyrecord.co.uk/news/scottish-news/jailbake-freedom-bakery-gives-prison-7890264">make cake</a>. Criminal justice professionals and volunteers know this. But we need others to know too. We need to share a rounded picture of these imprisoned individuals through books, articles, social media and art. We need to give a platform to prisoners which clearly shows their potential to contribute to society, both before and upon release. And we need to show how current prison conditions are completely incompatible with this goal. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/pxK6PKziPUw?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<h2>From concern to action</h2>
<p>But public concern needs to translate to public involvement. The number of people in prison is staggeringly high and there are simply not enough professionals to provide the focused one-to-one and social support which we know works best. The general public can really help. Whether that be with money, time, a job, a room, a listening ear, teaching a skill, sharing experiences, a visit, a welcoming invitation to a community group, mentorship, friendship, or simply a “welcome”. </p>
<p>These things can be offered inside prison and carried on outside, by anybody willing to offer them. This is societal reintegration carried out by members of that society. There are already <a href="http://www.prisonreformtrust.org.uk/portals/0/documents/what%20can%20i%20do.pdf">schemes doing these things</a>, but to truly reintegrate prisoners, a broader increase in public involvement is needed. </p>
<p>Improving prisoner welfare is not a case of being “soft”, or doing an injustice to victims. It is a pragmatic decision. It is an investment in the safety of our friends and families, by reducing repeat offending and preventing further victimisation. Currently the repeat offending rate stands at <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/676431/proven-reoffending-bulletin-jan16-mar16.pdf">49% for adults released from custody</a> in England and Wales. In Norway – famed for its relatively safe and decent prisons – <a href="http://www.kriminalomsorgen.no/getfile.php/2819934.823.xpewptatwc/Nordic+relapse+study+abstract+.pdf">it is 20%</a>. The director of Halden Prison in Norway <a href="http://uk.businessinsider.com/why-norways-prison-system-is-so-successful-2014-12">neatly sums up</a> the pragmatism of investing in prisons: “Do you want people who are angry – or people who are rehabilitated?”</p>
<p>The approach to imprisonment in England and Wales has to change. And it will not change unless the public become sufficiently outraged to demand that the government take real action. That outrage will not happen until there is a more rounded public understanding of those who are housed inside our prisons. When the public brings their voices to bear on prison reform, ministers will have to listen.</p><img src="https://counter.theconversation.com/content/93157/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sophie Ellis does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Without public pressure, politicians won’t make improving conditions in prisons a priority.Sophie Ellis, Research Assistant, Institute of Criminology, University of CambridgeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/917672018-02-14T10:43:00Z2018-02-14T10:43:00ZCriminal justice is at breaking point after years of unstable leadership<figure><img src="https://images.theconversation.com/files/206249/original/file-20180213-44651-10xohci.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/gold-lady-justice-statue-on-top-418094146?src=AlJNCsmrxY0qbwHfJLCCgw-1-0">Shutterstock</a></span></figcaption></figure><p>The criminal justice system in England and Wales is failing victims and witnesses to such an extent that MPs say it is now “<a href="http://www.bbc.co.uk/programmes/p03wdy3l">close to breaking point</a>”. Years of budget cuts and changes have led to a justice system <a href="https://www.theguardian.com/public-leaders-network/2018/feb/10/probation-service-meltdown-john-worboys-supervised">that is in meltdown</a>.</p>
<p>With such a crisis at hand, one would expect some kind of “strong and stable” leadership from the UK government. Yet, in the <a href="https://theconversation.com/is-that-it-how-theresa-may-fumbled-her-cabinet-reshuffle-89877">most recent cabinet reshuffle</a>, the prime minister, Theresa May, once again appointed a new lord chancellor and secretary of state for justice, <a href="https://www.gov.uk/government/people/david-gauke">David Gauke</a>. Gauke is the sixth justice secretary since 2010, and Theresa May’s third. He replaced <a href="https://www.gov.uk/government/people/david-lidington">David Lidington</a> just six months after he took up the role. Prior to that <a href="https://www.gov.uk/government/people/elizabeth-truss">Liz Truss</a> held the position for less than a year. </p>
<p>The <a href="https://www.gov.uk/government/organisations/ministry-of-justice">Ministry of Justice</a> is considered a major government department. Supported by 32 agencies and public bodies, <a href="https://www.gov.uk/government/organisations/ministry-of-justice">its core purpose</a> is to protect and advance the principles of justice, while upholding the rule of law. In fact, the UK justice systems has long been “<a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/553261/joint-vision-statement.pdf">the envy of the world</a>”. An “independent judiciary” with “global lawyers”, the “brand” is recognised as “internationally outstanding”. But the lack of consistent leadership is causing it to stall. Though there are permanent secretaries working within the ministry, it is the secretary of state who “steers the ship”, and maintains relationships and trust between the government and the judiciary. </p>
<h2>Sinking ship?</h2>
<p>The post of lord chancellor – now more commonly known as the secretary of state for justice – dates back to medieval times, when they were <a href="http://www.parliament.uk/about/living-heritage/evolutionofparliament/parliamentwork/offices-and-ceremonies/overview/lord-chancellor1/">responsible for</a> the supervision, preparation and dispatch of the king’s letters, using the sovereign’s seal. Prior to the Constitutional Reform Act 2005, the lord chancellor held <a href="https://publications.parliament.uk/pa/ld199798/ldhansrd/vo971125/text/71125-18.htm">roles in all three arms of the state</a>. They were a senior judge, a member of cabinet, and presided over the house of lords.</p>
<p>Today the lord chancellor is an elected MP who holds the cabinet position of head of the ministry of justice. While they still have the ancient title of lord chancellor, the role focuses on <a href="https://www.ucl.ac.uk/constitution-unit/research/judiciary-human-rights/judicial-independence/Constitution_Committee_on_the_Office_of_Lord_Chancellor_july_2014">responsibility for</a> the efficient functioning and independence of the courts, along with other important constitutional roles. </p>
<p>But constant changes at the top mean that the secretaries of state for justice have not fulfilled these roles. In the meantime, judges have been branded “<a href="https://www.theguardian.com/politics/2016/nov/04/enemies-of-the-people-british-newspapers-react-judges-brexit-ruling">enemies of the people</a>” – with only <a href="https://ukconstitutionallaw.org/2014/08/18/graham-gee-do-lord-chancellors-defend-judicial-independence/">a slow response</a> to defend them – and their diversity has been <a href="https://theconversation.com/2018-must-be-the-year-that-we-reimagine-judicial-diversity-89593">called into question</a>.</p>
<p>On this latter point, in early 2018, David Lidington said that judicial diversity targets were <a href="https://www.thetimes.co.uk/article/why-targets-are-not-the-way-to-improve-judicial-diversity-83m5l7qxx">“not the answer”</a> to the issue. So what is? While the <a href="https://jac.judiciary.gov.uk/">judicial appointments commission</a> has a role to play in diversity matters, a secretary of state must be in place to set out the the government’s position on what is a pressing matter. The judiciary should represent the people of society, and right now it is not doing so.</p>
<h2>Cuts and closures</h2>
<p>Looking to the front of house, England and Wales also needs a secretary to lead on a meaningful review of the consequences of the <a href="https://www.theguardian.com/law/2017/oct/31/impact-of-cuts-to-legal-aid-to-come-under-review">£450m a year</a> legal aid cuts, as well as their impact <a href="https://www.theguardian.com/law/2016/jan/13/uk-most-senior-judge-says-justice-has-become-unaffordable-to-most">on the cost of justice</a>. Much of what is being recognised now as bringing the justice system to melting point is the consequence of years of these cuts. Again, a secretary with longevity in the role could lead on the future direction of justice policy within the UK, as well as keep justice issues <a href="https://www.theguardian.com/law/2017/oct/13/senior-judge-warns-over-shaming-impact-of-legal-aid-cuts">top of the government’s agenda</a>.</p>
<p>Similarly, there is the impact of the extensive <a href="https://www.lawgazette.co.uk/news/court-closures-set-for-completion-by-september-2017/5058392.article">programme of court closures</a>, which must be headed up by consistent ministerial leadership. The country needs someone to ensure adequate responsibility is taken for the decisions being made, and to ensure that access to justice is not restricted.</p>
<p>However, none of this should be taken to mean that just any MP should be handed the role of justice secretary simply because they will last in the job. The ministry of justice requires a secretary with an understanding of <a href="https://www.thebalance.com/trends-reshaping-legal-industry-2164337">the wider profession as it is today</a> and the <a href="https://www.lawgazette.co.uk/law/global-legal-profession-warned-of-ominous-challenges/5063148.article">challenges lawyers face</a>. </p>
<p>In recent years, secretaries have not even <a href="https://www.lawgazette.co.uk/news/david-lidington-another-non-lawyer-is-new-lord-chancellor/5061488.article">had legal backgrounds</a> – although it must be noted that the appointment of Gauke, <a href="https://l2b.thelawyer.com/david-gauke-lord-chancellor/">a former solicitor</a>, has broken this recent trend, a fact which could see policies being led by his more intricate understanding of the law.</p>
<p>Without heeding these glaring warning signs now, the “breaking point” could very quickly develop into a crack in England and Wales’s legal system. Only with someone at the helm who can take long-term responsibility for overhauling the country’s legal system can justice be truly served at all levels.</p><img src="https://counter.theconversation.com/content/91767/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stephen Clear does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A succession of leaders have failed to address problems in England and Wales.Stephen Clear, Lecturer in Constitutional and Administrative Law, and Public Procurement, Bangor UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/675922016-12-23T06:40:16Z2016-12-23T06:40:16ZHow legal aid cuts are putting extra strain on family courts<figure><img src="https://images.theconversation.com/files/150791/original/image-20161219-24265-1llqemx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> <span class="attribution"><span class="source">designer491/shutterstock.com</span></span></figcaption></figure><p>It has been over three years since the coalition government introduced <a href="http://www.bbc.co.uk/news/uk-politics-22936684">drastic cuts</a> to legal aid. During that time, <a href="https://theconversation.com/innocents-will-suffer-as-legal-cuts-put-paid-to-due-process-21775">much has been written</a> about the impact of those cuts on members of the public attempting to access justice in their family cases. </p>
<p>But there has been another victim of these cuts: the family court system itself. It is currently bulging under pressure from both an increase in applicants who have been forced to represent themselves in family proceedings and also from a rise in applications for injunctions linked to domestic violence. </p>
<h2>Unrepresented parties</h2>
<p>Although the exact numbers of people representing themselves within the court system is difficult to measure, <a href="http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN07113">a recent government report</a> has indicated the numbers are on the rise. </p>
<p>Without the assistance of legal representatives, out-of-court discussions can be tricky and most negotiation has to be done within the courtroom, with the assistance of a judge. Even where one party has the assistance of a legal representative, <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/380479/litigants-in-person-in-private-family-law-cases.pdf">hearings are likely to take much longer</a> than those where both parties have representation. </p>
<p>This appears to be because judges are seeking to ensure fairness between the parties and spend time within the hearing confirming that the unrepresented party fully understands the process and what (if anything) they are agreeing to. Guidance on this issue from the <a href="http://www.lawsociety.org.uk/news/documents/litigants-in-person-guidelines-for-lawyers-june-2015/">Law Society</a> indicates that courts may be more willing to grant extensions or adjournments to an unrepresented party.</p>
<p>It was hoped that the introduction of compulsory <a href="http://www.familymediationcouncil.org.uk/family-mediation/assessment-meeting-miam/">mediation information and assessment meetings</a> (MIAMs), in 2014 would prevent this by promoting out of court settlements and in turn reducing the number of family court applications.</p>
<p>Yet, research conducted in April 2016 by the National Family Mediation charity <a href="http://www.nfm.org.uk/index.php/about-nfm/news/605-government-divorce-policy-failing-as-separating-couples-head-straight-to-court">indicated</a> that only one in 20 private family court applications are actually preceded by the supposedly “compulsory” MIAM process. New <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/577475/legal-aid-statistics-bulletin.pdf">figures</a> show that the number of MIAMs fell by 17% between April and September 2016 and the same period in 2015. </p>
<p>The problem appears to be that, even if one party wishes to follow the full mediation process following the MIAM, the other party must also agree. Without agreement from both parties to the mediation process, the person seeking resolution of their family issue may have no choice but to start legal proceedings without any subsequent advice or assistance.</p>
<h2>Family courts and evidence of domestic abuse</h2>
<p>The cuts to public funding have meant legal aid is largely unavailable in family law cases. The exception is where evidence of domestic abuse or violence can be produced. Yet, in many cases where there has been domestic abuse, victims have been reluctant to speak out and the abuse has ultimately gone unreported. </p>
<p>This issue was picked up last year by the charity <a href="https://www.theguardian.com/law/2016/feb/18/changes-to-legal-aid-for-domestic-violence-victims-ruled-invalid">Women’s Aid</a>, who succeeded in bringing a court action to challenge such restrictions on legal aid. This was on the grounds that restrictions on who is eligible for legal aid caused by the level of evidence needed to prove domestic violence had taken place were undermining the actual purpose of legal aid regulations. That purpose is to ensure that victims of domestic abuse are not materially disadvantaged from having to face their abuser in court. </p>
<p>This resulted in a government review of the regulations. Since April 2016, the Legal Aid Agency <a href="http://www.familylawweek.co.uk/site.aspx?i=ed160432">now accepts</a> evidence of domestic abuse within the last five years in support of a legal aid application, compared to the previous time-frame of two years. Looking at statistical data, this does appear to have helped more people access funding. Newly <a href="https://www.gov.uk/government/statistics/legal-aid-statistics-july-to-september-2016">released figures</a> show a 26% increase in applications for legal aid supported by evidence of domestic violence between July and September 2016 and the same period in 2015, and a 51% increase in grants. </p>
<iframe id="datawrapper-chart-UnjMl" src="https://datawrapper.dwcdn.net/UnjMl/1/" frameborder="0" allowtransparency="true" allowfullscreen="allowfullscreen" webkitallowfullscreen="webkitallowfullscreen" mozallowfullscreen="mozallowfullscreen" oallowfullscreen="oallowfullscreen" msallowfullscreen="msallowfullscreen" width="100%" height="400"></iframe>
<p>However, despite these changes, the underlying problem remains that, except for family law injunctions, some evidence of domestic abuse must still be provided before legal aid is approved. This has led to <a href="http://thecustodyminefield.blogspot.co.uk/2014/01/abusing-legal-aid.html">concerns</a> that people could be forced to use the family courts to obtain the necessary evidence of domestic abuse they require for their legal aid applications in other family court proceedings – such as those to gain access to their children. </p>
<p>For example, a man or a woman could first make an application for a non-molestation order (a type of injunction) against their ex-partner and subsequently use that order as required evidence of domestic violence in a custody hearing. Legal aid remains available for non-molestation applications without any need for prior evidence of domestic abuse.</p>
<p>The standard of proof or evidence required by the family courts in support of these applications <a href="http://www.marilynstowe.co.uk/2015/05/23/the-standard-of-proof-in-family-law/">is much lower</a> than that required in criminal proceedings. It is therefore much more likely that an application of this type will be successful, even if the available evidence of the abuse is limited. Quite often these applications will be based solely on one person’s version of events compared to another’s. </p>
<h2>Family courts under strain</h2>
<p><a href="http://thecustodyminefield.com/non-molestation-orders-the-national-picture-north-west-anomaly-and-fpcs/">Data gathered</a> by a series of freedom of information requests in 2015 showed a general increase in applications for non-molestation orders since the legal aid changes were brought in, although admittedly in some areas of England more than others. On top of this, <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/577502/family-court-statistics-quarterly.pdf">there has been a 14% increase</a> in other private family law cases in the last year alone. All this means that the list of those waiting for hearings in family courts are increasingly busy. </p>
<p>At the same time, those people who could have previously sourced legal aid due to their low income will usually be entitled to either a full waiver or a reduction in their court fee. Since 2014, fees are also no longer payable in applications for non-molestation orders. This means that the courts are not even receiving a contribution towards their running costs in these cases, and are running on empty.</p>
<p>By cutting legal aid, the government has seemingly only succeeded in passing the burden from one publicly funded agency, the Legal Aid Agency, to another, HM Courts and Tribunals Service. The family court system is currently at breaking point and further government review is urgently needed if people are going to be able to continue to use the system effectively.</p><img src="https://counter.theconversation.com/content/67592/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kayliegh Richardson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The UK’s family court system is at breaking point.Kayliegh Richardson, Senior Lecturer in Family Law and Child Care Law, Northumbria University, NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/689502016-11-17T13:33:56Z2016-11-17T13:33:56ZPrison violence is not about staffing: they’ve always been dangerous for prisoners<p>In an attempt to force the hand of the government in negotiations regarding the numbers of prison officers employed in public sector prisons, more than 10,000 prison officers have taken part in a <a href="http://www.bbc.co.uk/news/uk-37984479">24-hour “protest action”</a>.</p>
<p>It is illegal for prison officers to strike, but officers stopped work at midnight on November 15. Prisons went into “lockdown” – operating on skeleton staffing levels. A number of governor-grade staff (operational managers) undertook prison officer duties and many prisoners were left locked in their cells for much of the day. </p>
<p>The Prison Officers Association (POA) called for the action after losing patience with the justice secretary, Liz Truss, regarding a planned meeting to discuss their concerns regarding prison officer safety. According to the <a href="http://www.poauk.org.uk/index.php?press-releases&newsdetail=20161115-2_poa-national-executive-reject-health-safety-proposals">POA press release</a>, the latest offer on prison officer “well-being” was “unacceptable”. The “protest action” was therefore intended to send a message to the government about the importance of engaging immediately in further negotiations so that a “sensible solution” could be reached. </p>
<h2>Fractious relations</h2>
<p>The relationship between the government and POA has traditionally been one of hostility and mistrust – so much so that in 1992 a previous Conservative administration <a href="http://www.poauk.org.uk/index.php?poa-history-in-prisons">tried to abolish the POA</a>. There has, however, been a coincidence of interests and a shared understanding of the problems confronting prisons in the past few months. This unlikely alliance appears to have weakened if not broken down completely in the run-up to the industrial action.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"798440323655548928"}"></div></p>
<p>The government launched a <a href="https://www.theguardian.com/society/2016/nov/15/uk-prison-officers-stage-protest-over-health-and-safety-fears">high court action</a> on the morning of November 15 to stop the “protest action”, with the court ruling the action illegal and that officers should return to work immediately. After some delay, the POA announced the end of the action and that Liz Truss agreed to a meeting. So, the action achieved its goal.</p>
<h2>History of violence</h2>
<p>The POA has <a href="http://www.poauk.org.uk/index.php?press-releases&newsdetail=20161115-10_poa-national-executive-reject-health-safety-proposals">described prisons</a> as “volatile” and “dangerous”. The word “bloodbaths” was also used and this understanding has been influential in shaping political and media debates. Government policies, such as those outlined in the recent white paper <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/565014/cm-9350-prison-safety-and-reform-_web_.pdf">Prison Safety and Reform</a> have reproduced its claims connecting prisoner violence, self-inflicted deaths and prison officer assaults with a decline in prison officer numbers since 2010.</p>
<p>But when the prison is explored in the context of historical evidence, the claims of the POA appear much less convincing. Let us first consider claims that prisons are dangerous places for prison officers. Since 1850, only eight members of prison staff <a href="http://www.europeangroup.org/sites/default/files/Final%20Newsletter%20November%202016.pdf">have been murdered at work</a> in England and Wales. The last prison officer murdered was Derek Lambert in 1965, some 50 years ago. </p>
<p>Official data indicates that, before 2011, recorded incidents of violence against prison officers <a href="http://reference.data.gov.uk/2011-09-30/doc/public-body/national-offender-management-service-noms/unit/offender-safety-rights-and-responsibilities-group">was in decline</a> – there were, on average, only 52 incidents requiring hospital treatment each year. In response, on April 17 2012, the POA asked officers to “always report assaults”. The data cited in the media – by politicians and the recent white paper on prison officer assaults – have been only from 2012 onwards. </p>
<p>Further, before the cuts in prison officer numbers in 2010 there were recorded increases in prisoner violence. For example, from 2000-2009, there was a <a href="http://www.crimlinks.com/news2010/july282010.html">61% increase in prisoner violence</a>. Prisoner violence cannot be explained by staffing levels alone. </p>
<p>It is significant to note with regards to the <a href="http://www.bbc.co.uk/news/uk-england-37892360">recent disturbances at HMP Bedford</a>, that the largest-ever prison disturbances in England and Wales – at <a href="http://hansard.millbanksystems.com/written_answers/1990/apr/23/prison-riots">Manchester, Bristol and Dartmoor prisons</a> took place in April 1990 – which was when the staff-prisoner ratio was at its lowest-ever: one officer for every 2.3 prisoners. Though this ratio increased to <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/565014/cm-9350-prison-safety-and-reform-_web_.pdf">one officer for every 3.6 prisoners in March 2016</a>, this is still much lower than most of the time in the past, where the average for more than a 100 years was <a href="http://www.europeangroup.org/sites/default/files/Final%20Newsletter%20November%202016.pdf">one officer for every six prisoners</a>.</p>
<h2>Prisoner deaths</h2>
<p>Prisoner deaths have also been tied to numbers of prison officers. The POA raised concerns about the recent murder of <a href="https://www.theguardian.com/uk-news/2016/oct/19/pentonville-prison-knife-attack-second-inmate-arrested">Jamal Mahmood in HMP Pentonville</a>, linking this and the record rates of self-inflicted deaths of prisoners to staffing levels. Yet there was no such concern raised by the POA in the past about the racist murders of <a href="http://news.bbc.co.uk/1/hi/uk/3198264.stm">Zahid Mubarek</a> or <a href="http://news.bbc.co.uk/1/hi/england/west_yorkshire/6667055.stm">Shahid Aziz</a>. </p>
<p>Further the rate of recorded “suicides” in prison has been growing since 1986 – a year when there were <a href="http://www.europeangroup.org/sites/default/files/Final%20Newsletter%20November%202016.pdf">21 recorded suicides</a>. According to the latest figures, released on November 11, there have been <a href="https://www.theguardian.com/society/2016/nov/12/staff-shortages-british-prisons-bedford-pentonville-truss">99 self-inflicted deaths</a> in prisons in England and Wales in 2016, the highest number ever recorded. </p>
<p>The problems facing UK prisons today cannot be reduced to reductions in the numbers of staff but rather go back decades, if not centuries. Prisons have always been places of violence, suffering and death for prisoners. This will not be changed simply by employing more prison officers.</p><img src="https://counter.theconversation.com/content/68950/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Scott does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Problems in the UK prison system go back decades, if not centuries.David Scott, Senior Lecturer Criminology, The Open UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/676812016-11-11T14:24:09Z2016-11-11T14:24:09ZSpalding murders must not be used to justify more punitive responses to young offenders<figure><img src="https://images.theconversation.com/files/145469/original/image-20161110-25066-d8y5mh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Tributes left to Elizabeth Edwards and her daughter Katie, murdered in April 2016. </span> <span class="attribution"><span class="source">Chris Radburn/PA Wire</span></span></figcaption></figure><p>Two teenagers convicted of stabbing and smothering to death a mother and daughter in their own home in Spalding, Lincolnshire <a href="https://www.theguardian.com/uk-news/2016/nov/10/teenagers-jailed-for-at-least-20-years-for-spalding-murders-elizabeth-katie-edwards">have been sentenced</a> to life in prison. The extreme nature of the sentence – which means the two will not be eligible for parole for 20 years – reflects the severity of the offence. </p>
<p>But the two perpetrators were 14 years of age at the time of the crime – and the sentence, combined with the legal and media response to the crime, does little to reflect the perpetrators’ relative immaturity, irresponsibility or lack of moral and cognitive development. </p>
<p>During the sentencing, the judge, Mr Justice Haddon-Cave, <a href="http://www.bbc.co.uk/news/live/uk-england-lincolnshire-37929771?ns_mchannel=social&ns_source=twitter&ns_campaign=bbc_live&ns_linkname=58248c62e4b05d511bb329ad%26Grotesque%20and%20chilling:%20Judge%20on%20Spalding%20murders%26&ns_fee=0#post_58248c62e4b05d511bb329ad">described</a> the killing of Elizabeth and Katie Edwards as “grotesque” and “chilling” and said that it was “a terrible crime with few parallels in modern criminal history”. </p>
<p>Yet the reaction to Spalding case has similarities to the 1993 abduction, torture and murder of <a href="https://www.theguardian.com/uk/1993/nov/02/bulger.tomsharratt">two-year-old James Bulger</a> in Liverpool. His murder, committed by two ten-year-old boys, caused public outrage and the perpetrators, Robert Thompson and Jon Venables, were demonised by politicians and the media – branded “nasty” and “evil”. John Major, the prime minister at the time, <a href="http://www.independent.co.uk/news/major-on-crime-condemn-more-understand-less-1474470.html">insisted</a> that society should “condemn a little more and understand a little less”. The Bulger murder prompted both the media and government to argue that Britain was living through a “<a href="https://uk.sagepub.com/en-gb/eur/youth-and-crime/book241450">crisis of childhood</a>” – based on a perceived breakdown of moral and social order.</p>
<p>The print media and politicians have historically <a href="https://www.routledge.com/Young-People-Crime-and-Justice-2nd-Edition/Hopkins-Burke/p/book/9781138776623">misrepresented youth crime</a> by distorting the reality of violent behaviour – making serious crimes in which children kill children seem more frequent and widespread than they actually are.</p>
<p>The danger now is that the horrific Spalding murders, like the Bulger murder before them, may be hijacked to service political interest and media agendas. But it would be wrong to use this highly atypical offence to justify the increased criminalisation and demonisation of children who offend. </p>
<h2>After James Bulger</h2>
<p>Distortion and sensationalising of youth crime has significantly influenced the direction of youth justice policy, and has been employed in a post-hoc way to <a href="http://crj.sagepub.com/content/10/2/155.abstract">validate existing policy ideas</a>. For example, the murder of James Bulger led the age of criminal responsibility to be lowered to ten, in line with the ages of Venables and Thompson. Michael Howard, the Conservative home secretary at the time, <a href="http://onlinelibrary.wiley.com/doi/10.1111/j.1099-0860.1997.tb00013.x/abstract">asserted</a> that young offenders: “will no longer be able to use age as an excuse for immunity from effective punishment”. </p>
<p>The result of this misrepresentation of the scale of the problem of youth crime to serve political and media interests has been an intense fear and mistrust of young people from the general public, accompanied by a desire for increasingly punitive and controlling sanctions. In the process, children who offend have been deprived of their innocence, vulnerability and status as a “child”.</p>
<p>New policies proposed after Bulger’s murder in the 1990s were vote winners and tabloid pleasers. After it came to power in 1997, the new Labour government introduced methods that stigmatised young offenders. These <a href="http://oro.open.ac.uk/7294/1/Governing_young_people.pdf">included</a> risk assessment and preventative early intervention, among other “crackdowns”, initiatives, targets, policy proposals and pilot schemes. These were informed by the quick-fix idea that youth crime could be “nipped in the bud” and intervention undertaken before a crime was committed. </p>
<p>Despite pathways into and out of crime being notoriously complex and difficult to measure accurately, the Labour government deployed surveillance, control and regulation of children’s behaviour to predict the “risk” they presented to themselves and others, justifying these early interventions to manage that risk. </p>
<h2>Children in prison have become rarer</h2>
<p>This emphasis on risk assessment is very slowly being phased out of youth justice systems in England and Wales, but <a href="https://www.gov.uk/government/publications/assetplus-assessment-and-planning-in-the-youth-justice-system/assetplus-assessment-and-planning-in-the-youth-justice-system">AssetPlus</a> – a new assessment and intervention planning tool – still prioritises the likely risk of reoffending as its key outcome. Preventative intervention remains the basis of AssetPlus.</p>
<iframe id="datawrapper-chart-S51wi" src="https://datawrapper.dwcdn.net/S51wi/1/" frameborder="0" allowtransparency="true" allowfullscreen="allowfullscreen" webkitallowfullscreen="webkitallowfullscreen" mozallowfullscreen="mozallowfullscreen" oallowfullscreen="oallowfullscreen" msallowfullscreen="msallowfullscreen" width="100%" height="491"></iframe>
<p>Still, since the Conservative-led coalition government took power in 2010, there have been <a href="http://www.emeraldinsight.com/doi/abs/10.1108/SC-01-2014-0002">annual reductions</a> in young people drawn into the formal criminal justice process for the first time – building on a trend that began in 2008. Child arrests in England and Wales have <a href="http://howardleague.org/news/childarrests2015/">fallen by 59%</a> in five years. There have also been annual reductions in the <a href="http://thenayj.org.uk/wp-content/uploads/2016/10/NAYJ-Briefing-State-of-Youth-Custody-2016.pdf">number of children</a> sentenced to custody, which in 2016 are at their lowest levels since 2000. </p>
<p>A case such as the Spalding murders attracts significant attention and publicity. Clearly horrific and devastating though the case is, it remains an extremely rare type of offence. The danger is that such an extreme crime committed by two teenagers could motivate a rapid change in political and public mood and in perceptions of young people. </p>
<p>Despite their seriousness, these high-profile murders are isolated acts and must not be used by the politicians and the media to justify more punitive responses to young people who commit crime.</p><img src="https://counter.theconversation.com/content/67681/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sean Creaney is affiliated with the National Association for Youth Justice and social justice charity Peer Power. </span></em></p><p class="fine-print"><em><span>Stephen Case does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Two teenagers have been sentenced to life for a double murder. But their crime is extremely rare.Sean Creaney, Lecturer in Psychosocial Analysis of Offending Behaviour, Edge Hill UniversityStephen Case, Professor of Criminology, Loughborough UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/673182016-10-25T15:24:00Z2016-10-25T15:24:00ZThree questions on rape justice after the Ched Evans not guilty verdict<p>Since the footballer Ched Evans was <a href="https://www.theguardian.com/football/2016/oct/14/footballer-ched-evans-cleared-of-in-retrial">found not guilty of rape</a> at a retrial on October 14, public opinion appears divided. Much has already been written about the case, in <a href="https://www.theguardian.com/commentisfree/2016/oct/17/the-guardian-view-on-ched-evans-reconsider-the-law">particular the use</a> of the victim’s sexual history in court. These commentaries range from fears that <a href="http://www.independent.co.uk/news/uk/crime/ched-evans-rape-case-cleared-not-guilty-sets-us-back-30-years-vera-baird-solicitor-general-womens-a7363291.html">hard-fought feminist reforms have been undone</a> to legal professionals <a href="https://thesecretbarrister.com/">asserting</a> that the law only allows evidence relating to sexual history in rare circumstances. </p>
<p>Inevitably, the truth lies somewhere in between these approaches. <a href="http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.642019">My own research</a> shows that evidence regarding sexual history is routinely used at trial to undermine victims, so this is not a step back to the 1970s but rather a grim reflection of current practices. </p>
<p>After the verdict and the reaction to it, the following three questions could help move the debate on rape justice forward.</p>
<h2>1. How can we stop poor responses to sexual offences?</h2>
<p>It is clear that several misunderstandings about rape are prevalent and have an impact on the public’s responses to cases such as the Evans one. This arises partly from our need to feel safe and in control of our lives, making it unnerving to hear about the widespread and indiscriminate impact of rape on a diverse range of victims. In order to convince ourselves that we are not at risk, psychological research has suggested that many members of the public <a href="http://www.sciencedirect.com/science/article/pii/S1359178914000780">therefore find reasons</a> to “defensively attribute” blame to the victim and argue they could have prevented the violence if in a similar situation.</p>
<p>This is exacerbated by some irresponsible media reporting, where misunderstandings about rape are repeatedly trotted out to undermine the survivor’s experiences focusing on her clothing, her actions or her drinking. Such reporting <a href="http://rapecrisis.org.uk/mythsvsrealities.php">ignores the realities of rape</a>, or <a href="http://www.wrsac.org.uk/information/what-is-rape-trauma-syndrome/">the impact that trauma</a> can have on survivors. Until the public face these realities and recognise that rape is the sole responsibility of the rapist, we contribute to the stigma and victim-blaming that the Evans retrial has highlighted.</p>
<p>This is especially true in relation to the portrayal of rapists <a href="https://www.youtube.com/watch?v=B9_-nN4bUCw">as monsters rather</a> than partners, fathers, or friends. If the defendant appears to be a “nice guy” or has a promising talent, like the young men accused of sexual assault in Netflix <a href="http://www.audrieanddaisy.com/">documentary Audrie and Daisy</a>, their actions are trivialised or excused so that they are not portrayed as being different. Such labelling is also behind calls for defendants to have anonymity in sexual offences (another debate that has <a href="http://www.endviolenceagainstwomen.org.uk/news/260/evaw-calls-on-cliff-richard-paul-gambaccini-and-nigel-evans-to-drop-anonymity-campaign">resurfaced after the Evans case</a>). So perhaps it is time to acknowledge that rapists are more likely to be the life and soul of the party than the weirdo lurking down an alleyway.</p>
<h2>2. What does justice for rape survivors actually look like?</h2>
<p>It is clear from responses to the Evans verdict that some parts of the general public do not understand our criminal justice system. A not guilty verdict can cover anything from total innocence to “very probably guilty but I can’t be totally certain”. As the Secret Barrister <a href="https://thesecretbarrister.com/">blogged</a>: “There is absolutely no safe basis for suggesting [the complainant] has lied, or, to quell the more hysterical calls, that she should be prosecuted on the basis of Evans’ acquittal.”</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/142380/original/image-20161019-20298-15ciksi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/142380/original/image-20161019-20298-15ciksi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/142380/original/image-20161019-20298-15ciksi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/142380/original/image-20161019-20298-15ciksi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/142380/original/image-20161019-20298-15ciksi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/142380/original/image-20161019-20298-15ciksi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/142380/original/image-20161019-20298-15ciksi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Another kind of justice?</span>
<span class="attribution"><span class="source">Zolnierek/shutterstock.com</span></span>
</figcaption>
</figure>
<p>But the criminal justice system is fundamentally flawed in its ability to provide justice for victims of sexual violence. One of the things that victims <a href="https://books.google.co.uk/books?hl=en&lr=&id=yNDpAwAAQBAJ&oi=fnd&pg=PA378&dq=kathleen+daly+justice+interests&ots=iIIOkfRpRa&sig=wfca9ruSMSGu5jlILhQYuRLsWTU#v=onepage&q=kathleen%20daly%20justice%20interests&f=false">consistently tell researchers</a> is that they want to be heard and believed, <a href="https://prezi.com/3bk5zdpw-45y/copy-of-copy-of-kaleidoscopic-justice-making-sense-of-the-lived-complexitie/">regaining the sense of control</a> that was removed in the rape. The criminal justice system can be a place for this, as a sense of validation can come from having the offender admit their guilt or a jury convict based on the victim’s testimony. However, <a href="http://www.cps.gov.uk/publications/equality/vaw/">this is rare</a> and my <a href="http://www.bath.ac.uk/ipr/our-publications/policy-briefs/court-response-to-rape.html">research shows</a> that our adversarial system presents many barriers to victim justice.</p>
<p>A narrow view of justice as being solely about a criminal trial can therefore silence rape survivors and it is important to provide other places for victims to be heard. One such place is <a href="http://www.itsnotjustice.com/">ItsNotJustice.com</a>, developed by activist Pavan Amara as a place for survivors of rape to collect their experiences of the Criminal Justice System in a safe online space. Other sources of victim justice include the support provided by charities such as Rape Crisis. </p>
<h2>3. What positives can be taken from this case?</h2>
<p>Amid the inevitable misogynistic tweets and backlash against feminist commentary on the Evans case, it is important to recognise that responses to rape have improved since the 1970s. The very intensity of the debate around this case highlights changing attitudes, even if gendered stereotypes about false allegations remain stubbornly present. </p>
<p>Newspaper coverage of the case has surprised some <a href="https://twitter.com/VeraGrayF/status/787330276871512064">feminist activists on Twitter</a>. For example, the Daily Mail’s <a href="http://www.dailymail.co.uk/news/article-3839037/Ched-Evans-cleared-retrial-sparking-fury-women-s-groups.html">headline read</a> “Why was rape case girl’s sex life revealed?”, representing a shift away from the previous stories the newspapers has run about <a href="http://www.dailymail.co.uk/news/article-3075125/My-son-s-life-ripped-apart-woman-falsely-cried-rape-twice-Police-knew-Oxford-student-fantasist-did-believe-her.html">rape accusations</a>. </p>
<p>Progress has been made and responses to rape are slowly improving. To continue this journey we must look beyond the Evans case and on to the thousands of other rape cases taking place around the country. The push to improve responses to rape cannot stop once this one case is no longer considered newsworthy.</p><img src="https://counter.theconversation.com/content/67318/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Olivia Smith received PhD funding from the Economic and Social Research Council. </span></em></p>Responses to rape have improved, and they must continue to do so.Olivia Smith, Senior Lecturer in Criminology, Anglia Ruskin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/659212016-09-27T10:29:33Z2016-09-27T10:29:33ZNo wonder prisons are getting more violent, they’re full to the brim<p>Overcrowding, <a href="https://www.theguardian.com/society/2016/feb/05/prison-funding-cuts-are-putting-vulnerable-prisoners-at-risk">staff cuts</a> and a <a href="https://www.theguardian.com/society/2015/jan/17/uk-prison-drug-seizures-on-rise">growing drugs problem</a> have all created a toxic mix in English and Welsh prisons. So it’s hardly surprising there’s been a surge of violence on an unprecedented scale. </p>
<p>In 2015, there was a 31% increase in serious assault incidents in prisons according to a <a href="http://www.ppo.gov.uk/wp-content/uploads/2016/09/PPO-Learning-Lessons-Bulletin_Homicides_issue-12_WEB.pdf">new report</a> from the Prisons and Probation Ombudsman, which examined the murders of six prisoners in 2015-16 in England and Wales. </p>
<p>The crisis in English and Welsh prisons is a longstanding one. In 2014, the then-chief inspector of prisons, Nick Hardwick, <a href="http://www.bbc.co.uk/news/uk-27847007">warned</a> of a “political and policy failure” in prisons. A Prison Reform Trust <a href="http://www.prisonreformtrust.org.uk/PressPolicy/News/vw/1/ItemID/217">report</a> showed a system under immense strain with high levels of overcrowding, fewer staff, worsening safety, and fewer opportunities for rehabilitation.</p>
<p>In February 2016, the former prime minister, David Cameron, <a href="https://www.gov.uk/government/speeches/prison-reform-prime-ministers-speech">announced</a> a new set of prison reforms with the spotlight firmly on prison education. And although these reforms were welcomed by many, nothing was mentioned about the issues raised by Hardwick. Many reformers believed that the government hadn’t gone far enough. <a href="http://www.prisonreformtrust.org.uk/PressPolicy/News/vw/1/ItemID/275">They argue</a> that while education was seen as an essential part of cutting re-offending, it did not solve the ongoing crisis of overcrowding, staff cuts and an increase in violence and homicide.</p>
<p>Following Cameron’s departure from office in June, the new justice secretary Liz Truss refused to <a href="https://www.theguardian.com/society/2016/sep/07/liz-truss-puts-prison-reform-plans-put-on-hold">guarantee to a committee of MPs</a> in September that the reforms would go ahead. </p>
<p>But as politicians hesitate prisons remain in crisis, toxic with drugs and <a href="http://howardleague.org/news/a-prisoner-is-dying-every-day-as-deaths-assaults-and-self-injury-in-prisons-continue-to-rise/">violence, overcrowded</a> and overseen by fewer staff to manage the problem. There are also rapidly growing numbers of old, sick and disabled people in prison aged over 50, with people over 60 the <a href="http://www.prisonreformtrust.org.uk/PressPolicy/News/vw/1/ItemID/245">fastest growing age group</a> in the prison population between 2002 and 2014. </p>
<iframe src="https://datawrapper.dwcdn.net/10NLt/5/" frameborder="0" allowtransparency="true" allowfullscreen="allowfullscreen" webkitallowfullscreen="webkitallowfullscreen" mozallowfullscreen="mozallowfullscreen" oallowfullscreen="oallowfullscreen" msallowfullscreen="msallowfullscreen" width="100%" height="400"></iframe>
<h2>Don’t imprison people unnecessarily</h2>
<p>In his report on the recent prison violence, the prison ombudsman reported that while there are lessons to be learned about improving safety after the recent murders, there is no easy solution. Yet it seems to me that there is a course of action that could help alleviate the problem: remove people from prison who don’t need to be there. </p>
<p>In 2012, the system of imprisoning people for their own protection – known as IPP – <a href="http://johnsonastills.com/the-abolition-of-ipps-what-now">was abolished</a>. These prisoners are serving an indefinite sentence of imprisonment for public protection, with no release date – equivalent to a life sentence. But four years after the sentence was scrapped, there are still <a href="https://www.gov.uk/government/news/statement-on-ipp-prisoners-from-parole-board-chairman">around 4,000 IPP prisoners</a> waiting to be released. </p>
<p>In theory, IPP prisoners can stay in prison for the rest of their lives. But such sentences are not reserved for violent crimes – thousands are serving IPP sentences for crimes such as affray, or group fighting. It is unique to England and Wales, which has <a href="http://www.prisonreformtrust.org.uk/PressPolicy/News/vw/1/ItemID/279">more than three times</a> as many people in prison serving an indeterminate sentence than France, Germany and Italy. This is partly because the judges who imposed the sentences have worried about possible backlash for releasing someone who “may” commit another violent crime. </p>
<p>But almost every prisoner who received an IPP sentence has now completed their prison term. Despite this <a href="https://www.theguardian.com/commentisfree/2016/jul/28/liz-truss-brave-release-prisoners-indefinite-sentences">they remain uncertain</a> when they will ever be released. </p>
<p>If they had received the equivalent fixed sentence for their offence, all of them would have been released back into the community already which would have decreased the prison population. Understandably, however, some of those who have remained incarcerated may be still deemed to be a risk.</p>
<h2>Crowding in</h2>
<p>In 2015, the Prison Reform trust <a href="http://www.prisonreformtrust.org.uk/PressPolicy/News/vw/1/ItemID/279">reported</a>: “An explosion in the use of indeterminate sentences and the increased use of long determinate sentences are key drivers behind the near doubling of prison numbers in the past two decades.”</p>
<p>It explained that changes in prison policy and legislation have had a huge impact of the current surge of overcrowding which has pushed mandatory year-long supervision for short termers, mandatory minimum custodial sentences for those who commit a second offence of knife possession and restrictions of the use of release on temporary licence. Another contributory factor to the growing prison population is an increase in more serious and historic cases such as sexual offences going before courts as more victims of such crimes gain the courage to come forward. </p>
<p>There is also a wider story here about women’s prisons, with the <a href="http://www.prisonreformtrust.org.uk/ProjectsResearch/Women">majority</a> of women prisoners locked up for a short period for non-violent offences. Most women in prison have different needs to their male counterparts, such as <a href="https://theconversation.com/families-separated-by-bars-the-home-truths-about-sending-mothers-to-prison-56626">being closer to their children and families</a>. Because there are only 13 women’s prisons, visits are much more difficult. </p>
<p>It’s worth acknowledging that even if all the IPP prisoners were to be released it would barely put a dent in the bursting prison population. But the role of prison has become blurred with some residents not needing to be there. Part of the solution to this overcrowding seems clear – but it is not so clear why the government won’t take radical action to rectify it.</p><img src="https://counter.theconversation.com/content/65921/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Honeywell does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>One solution: free those remaining people imprisoned for their own protection.David Honeywell, PhD candidate, University of YorkLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/657562016-09-23T12:44:39Z2016-09-23T12:44:39ZWhat are McKenzie friends and why are they appearing in more courtrooms?<figure><img src="https://images.theconversation.com/files/138968/original/image-20160923-29916-13g3pw5.jpg?ixlib=rb-1.1.0&rect=0%2C299%2C1000%2C669&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Going to court? Who's your true friend?</span> <span class="attribution"><span class="source">Paul Matthew Photography / Shutterstock.com </span></span></figcaption></figure><p>It used to be that if you needed a lawyer but didn’t have the money to hire one, you could usually get support through legal aid. But since big cuts to the civil <a href="http://www.bbc.co.uk/news/uk-politics-22936684">legal aid budget in April 2013</a>, the number of people accessing free legal services <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/533178/legal-aid-statistics-england-and-wales-bulletin-jan-to-mar_16.pdf">has fallen dramatically</a> as cases such as divorce, child contact and welfare benefits no longer qualify for legal aid.</p>
<p>Although it’s not clear how many people are now representing themselves in court as a result, <a href="https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news/lapso-report/">a report by a group of MPs</a> indicated that the numbers are significant and rising. Being a litigant in person can be a daunting process with a lot riding on the outcome. </p>
<p>Into the breach have stepped so-called McKenzie friends. These are people who are not qualified lawyers but are allowed to represent a party to civil proceedings if they have been given permission by the judge to do so. The term McKenzie dates back to a divorce case in 1970 in which the husband, Levine McKenzie, used the support of an Australian barrister who was not registered in the UK. While McKenzie friends are therefore not new to English courts, there is <a href="http://www.legalservicesconsumerpanel.org.uk/publications/research_and_reports/documents/2014%2004%2017%20MKF_Final.pdf">evidence</a> of an increase in their use following the cuts to legal aid. </p>
<p>Today, there are two main types of McKenzie friends: those that are free and those that charge fees. Free McKenzie friends include a number of university law schools and charities who provide assistance to litigants in person. </p>
<p>Fee-paying McKenzie friends are more controversial. They are not regulated and not required to have professional indemnity insurance, which means that clients cannot be sure they will be compensated if bad advice loses their case. Free McKenzie friends are not formally regulated either, but they typically do not offer legal advice, confining themselves to assisting clients with tasks such as note-taking, putting documents into chronological order or providing emotional support. Usually they are also insured. </p>
<p>By contrast, fee-paying McKenzie friends will often engage in advocacy on behalf of clients as well as offer detailed legal advice. Sometimes their fees can be high with <a href="http://www.barcouncil.org.uk/media-centre/news-and-press-releases/2016/april/mckenzie-friends-bar-chairman-says-consumer-protection-has-to-be-paramount/">reports</a> of some charging £100 per hour for their services. This does not offer any saving as it would be possible to employ a junior qualified lawyer for a similar amount. </p>
<h2>Bad behaviour</h2>
<p>There have also been concerns expressed over the behaviour of some McKenzie friends. In mid-September, one was accused (by the opposite party) of hijacking the case to pursue his own agenda while acting on behalf of a boatowner. While the judge ultimately <a href="http://www.lawgazette.co.uk/law/relentless-and-obstinate-mckenzie-friend-allowed-to-be-advocate/5057687.fullarticle">allowed him to act</a> on behalf of the claimant, the complaint reflects one of the fears relating to McKenzie friends: that they will be used by pressure groups to advance their own agendas.</p>
<p>This follows other cases where distinctly undignified courtroom behaviour has taken place. For example, in 2015 a McKenzie friend who had served prison sentences for dishonesty and public order offences <a href="http://www.lawgazette.co.uk/news/ex-bouncer-mckenzie-friend-banned-after-calling-lawyer-a-lying-slag/5049010.fullarticle">was banned</a> from representing anyone for life after insulting an opponent and for other bad behaviour. </p>
<p>In response to incidents like this the judiciary have <a href="http://www.lawgazette.co.uk/practice/judiciary-proposes-ban-on-fee-charging-mckenzie-friends/5053851.fullarticle">consulted</a> on a ban on fee-paying McKenzie friends. The Law Society and the Bar Council have supported the idea. Yet some regulators, such as the Legal Services Board and the Solicitors Regulation Authority, are <a href="http://www.lawgazette.co.uk/law/no-case-for-ban-on-paid-mckenzie-friends-regulators/5055493.fullarticle">opposed</a>, saying there is not enough evidence for a ban.</p>
<p>Not all fee-paying McKenzie friends engage in such egregious behaviour. Some have had experience in related disciplines like social work, and provide useful complementary perspectives to courts. Others are paralegals who are not legal professionals but have legal qualifications. There are <a href="http://www.lawgazette.co.uk/practice/solicitors-becoming-mckenzie-friends-to-avoid-regulatory-costs-cma-told/5054974.fullarticle">also reports</a> of solicitors becoming fee-paying McKenzie friends in order to avoid regulatory costs, enabling them to provide assistance at a more affordable cost to clients. There are also attempts at voluntary self regulation. For example, the <a href="http://www.mckenziefriends.directory/">Society for Professional McKenzie Friends</a> requires its members to carry professional indemnity insurance.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Keep it simple.</span>
<span class="attribution"><span class="source">Evlakhov Valeriy/ www.shutterstock.com</span></span>
</figcaption>
</figure>
<h2>Making justice more accessible</h2>
<p>When even middle-income people <a href="http://asauk.org.uk/wp-content/uploads/2013/09/Dramatic-drop-in-civil-legal-aid-eligibility.pdf">are struggling</a> to afford legal services it is clear that there is a huge issue about access to justice. Changes in business and regulatory practice – such as solicitors charging fixed fees, charging for specific tasks instead of conducting the entire case a practice known as “unbundling” and use of online courts and telephone hearings – may alleviate the problem caused by regulatory burdens which make legal services expensive. But, professional indemnity insurance, which solicitors are required to have, is a gold-plated service which comes at a price: it offers effective consumer protection but increases the cost of services. </p>
<p>The term McKenzie friend is not informative to consumers. It is also confusing as it suggests they are part of the court system, which they are not. A “court assistant” might be a more informative title, though it would mean they are part of the court system. This would give greater clarity to their role, but if they were part of the system they would need to adhere to a disciplinary code that would need to specify the tasks they could undertake – and would require insurance. To some extent, formalising them like this would mean a trade-off between enhanced consumer protection and affordability.</p><img src="https://counter.theconversation.com/content/65756/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard Owen is a member of the Law Society's Wales and Access to Justice Committees. However, all views expressed are personal opinions.</span></em></p>Legal aid cuts have made people going to court turn for help elsewhere.Richard Owen, Director Essex Law Clinic, School of Law, University of EssexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/596402016-07-07T11:59:37Z2016-07-07T11:59:37ZChilcot offers truth without reconciliation or justice<p>We now have the long-awaited report of the <a href="https://theconversation.com/chilcots-verdict-the-iraq-war-was-a-failure-of-oversight-and-planning-62066">Iraq Inquiry</a>, better known as the Chilcot Inquiry. We now know what was supposed true for a long time: that <a href="https://theconversation.com/chilcot-scolds-britains-intelligence-community-for-its-role-in-the-iraq-war-62078">intelligence</a> on the existence of weapons of mass destruction was presented with “a certainty that was not justified”, and led to the 2003 intervention in Iraq when peaceful options for Iraqi disarmament remained; that the armed forces were inadequately equipped; and
that <a href="https://theconversation.com/there-was-a-post-invasion-plan-for-iraq-but-the-west-has-learned-nothing-from-its-failure-62004">planning for the post-invasion phase</a> was “wholly inadequate”.</p>
<p>But although we clearly know more “truth” than we did, the whole process bears little resemblance to a fully-fledged “truth commission” and, as Chilcot himself has said, it was not designed to examine legal responsibility. After notorious events, there are often heated discussions over whether to prioritise justice or a healing truth. But the Chilcot Report provides little of either. </p>
<h2>Truth</h2>
<p>Learning the truth about past injustice can provide closure and promote reconciliation, but experience shows how difficult achieving this can be.</p>
<p>After the fall of apartheid in South Africa, the country embarked upon a process of “truth and reconciliation”. Established in 1995, the <a href="http://www.justice.gov.za/trc/">South African Truth and Reconciliation Commission</a> (SATRC) is probably the most famous “truth commission”, but there have been <a href="http://www.usip.org/publications/truth-commission-digital-collection">many more</a>. So many, in fact, that academics and NGOs have developed general expectations in relation to how they operate. </p>
<p>According to <a href="https://www.ictj.org/sites/default/files/ICTJ-Book-Truth-Seeking-2013-English.pdf">a report</a> from the <a href="https://www.ictj.org">International Centre for Transitional Justice</a>, a truth commission is expected to have three key objectives: to establish the facts about “violent events that remain disputed or denied”; to “protect, acknowledge, and empower victims and survivors”; and to inform future policy and encourage institutional change. This will often include some form of reconciliation.</p>
<p>While Chilcot shares the first objective, it falls short on the second, which virtually rules out the reconciliation element of the third. Clearly, the Inquiry was never designed to be a process of truth and reconciliation, but surely this has been a missed opportunity. </p>
<p>It is also debatable how usable Chilcot’s “truth” actually is: at around 2.6m words it’s hard to see who (other than academics) is going to read the whole thing. This undermines its potential to influence future policy.</p>
<p>On the issue of victims, the Inquiry rightly <a href="http://www.iraqinquiry.org.uk/the-inquiry/news-archive/2016/2016-07-06-sir-johns-meeting-with-families/">met with veterans of the conflict and the families of those who died or are missing</a>, and Sir John Chilcot has spoken thoughtfully about their “<a href="http://www.bbc.co.uk/news/uk-politics-36712735">high expectations</a>”. But while those to be criticised by the report have had months to prepare a response, the families had a mere three hours of advanced access to the executive summary. Effective historical accounting and respect for victims is about the process, <a href="https://www.theguardian.com/uk-news/2016/jul/06/blair-is-worlds-worst-terrorist-families-of-iraq-war-victims-react-to-chilcot-report">as well as the findings</a>.</p>
<p>Moreover, although the report has found that the people of Iraq “suffered greatly”, the inquiry did not engage with the Iraqi people directly (except via some political leaders, some of whom were seen in <a href="http://www.bbc.com/news/uk-politics-11528927">private meetings</a>). </p>
<p>While seeking reconciliation with the remnants of Saddam Hussein’s Ba'athist regime itself would not have been appropriate, working with the divided peoples of Iraq may have yielded significant long-term advantages – especially in the light of the ongoing sectarian difficulties that have been unleashed there.</p>
<p>It is also worth returning to the comparison with the South African experience. Beginning with its first hearings and investigations in 1996, the Truth and Reconciliation Commission investigated human rights abuses from 1960 to 1994, heard the testimonies of 21,000 victims (including 2,000 who spoke at public hearings), and concluded its work when the sixth and seventh volumes of its final report were published in 2003. </p>
<p>The Chilcot Inquiry considered the period from summer 2001 to the end of July 2009, heard from around 150 witnesses, and has, like the South African commission, taken around seven years to complete its work. They were very different processes but, given the difference in scale, the drawn-out nature of the Chilcot Inquiry looks even stranger.</p>
<p>To give some context, some of the delay with Chilcot has been caused by the so-called “Maxwellisation” process, which allowed those who are to be criticised some chance to respond before the report was published. Patricia Hayner’s excellent book, <a href="https://books.google.co.uk/books/about/Unspeakable_Truths.html?id=A1l5SZCx-dEC">Unspeakable Truths</a>, gives a warts-and-all view of the South African process, and points out that the publication of its final report was delayed when F. W. de Klerk, the country’s last white president, successfully sued to block the report from naming him, albeit temporarily. Even the African National Congress attempted to prevent publication with what Hayner called a “clumsy, last-minute court challenge”. </p>
<p>So perhaps the Maxwellisation process has helped Chilcot to avoid such problems, but it does seem to have taken a painfully long time.</p>
<h2>Justice</h2>
<p>The difficulty of the truth-versus-justice dilemma can be overstated. The balance of opinion among scholars and thinkers in this field is that truth and justice are not incompatible, and that the real problem is a question of timing, or “sequencing” as it is known: the importance of running truth-seeking mechanisms and trials in sequence. In fact, <a href="https://muse.jhu.edu/article/402724">a 2010 study</a> found that truth commissions conducted in isolation actually have a negative impact on human rights and democracy. </p>
<p>The South African Truth and Reconciliation Commission was unusual for being able to grant legal amnesties in return for testimony, but even its final report specifically named around 300 people that should face trial – but for dubious political reasons the list was <a href="http://www.africanews.com/2016/04/15/south-africa-s-truth-and-reconciliation-commission-accused-of-delaying-justice/">largely ignored</a>. </p>
<p>There are clear legal reasons why those who see Tony Blair as a “war criminal” were always going to be disappointed, but the fact that the Chilcot Inquiry is totally disconnected from the question of possible prosecutions is nonetheless a horrendous blind spot.</p>
<p>War crimes are, essentially, “grave breaches” of the Geneva Conventions of 1949. We are obliged to prosecute such breaches in domestic law, but under certain circumstances someone could face trial at the International Criminal Court (ICC), for example where a state with jurisdiction over the case is unable or unwilling to investigate or prosecute it. </p>
<p>In fact, the UK has <a href="http://news.sky.com/story/1615421/uk-soldiers-may-face-iraq-war-crime-charges">investigated allegations</a> that its own soldiers committed war crimes in Iraq – but even if charges are brought, it would be a stretch to argue that Tony Blair had “command responsibility” for the crimes in question.</p>
<p>In fact, what Blair’s critics most want is a full trial for the the decision to invade Iraq, which they see as a crime of aggression. But leaving aside questions of actual culpability, making that charge stick would be extremely difficult. </p>
<p>Aggression was not included as a crime in the UK’s International Criminal Court Act 2001 because a detailed definition was absent from the original 1998 agreement on the ICC. In the 2006 case of <a href="https://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd060329/jones.pdf">Jones v. DPP</a>, it was found that even if the crime existed in customary international law, it is not a crime in the domestic criminal law of England and Wales. </p>
<p>Furthermore, an agreement on inserting a detailed crime of aggression into the <a href="https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf">agreement on the ICC</a> was only reached in 2010, and the court will only be able to look at such crimes committed from 2017 onwards. It will have no retrospective effect, and therefore simply cannot cover the 2003 invasion. It’s difficult to see how any amendments to the 2001 UK act could be any different. The same goes even for legislation <a href="http://www.scottishlegal.com/2016/05/17/jim-sillars-calls-for-war-crimes-act-aimed-at-tony-blair/">specifically aimed at Blair’s responsibility for Iraq</a>.</p>
<p>Ultimately, the Chilot Inquiry has been an expensive investigation into a decidedly limited range of issues, and it has delivered precious little in terms of either justice or healing truth. Unless we learn that there is more to truth-telling than <a href="https://theconversation.com/chilcot-report-britain-must-overcome-its-addiction-to-inquiries-59499">big public inquiries</a>, and that respect for victims is key, the UK will remain ill-equipped to deal with its often <a href="https://www.theguardian.com/law/2015/nov/25/relatives-lose-fight-for-inquiry-into-1948-batang-kali-massacre">chequered past</a>.</p><img src="https://counter.theconversation.com/content/59640/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>James A. Sweeney has received funding from the Socio-Legal Studies Association to conduct research into traditional and transitional justice in Kosovo. He has received funding from the British Council to conduct research into the reception of ECHR jurisprudence in Azerbaijan. James has consulted to Agencia Consulting on projects where he has trained the Ukrainian Supreme Court (2011); helped to establish a legal research syllabus for the Kosovo Judicial Institute (2014); and convened workshops for the Supreme Court and Constitutional Court of Kosovo (2013-14). In the past he has given expert advice to the Council of Europe on projects in Armenia, Azerbaijan, Kosovo and Georgia. This article does not reflect the views of the research councils or other public funders.</span></em></p>Compared with other attempts to mend deep wounds after wars and conflicts, the Chilcot Report falls depressingly short.James Sweeney, Professor, Lancaster Law School, Lancaster UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/560962016-03-11T16:17:34Z2016-03-11T16:17:34ZWould the Birmingham Six be victims of miscarriage of justice today?<p>It is 25 years since the <a href="http://news.bbc.co.uk/onthisday/hi/dates/stories/march/14/newsid_2543000/2543613.stm">convictions of the Birmingham Six were quashed</a> amid dramatic scenes at the Old Bailey in London. </p>
<p>Paddy Hill, Gerry Hunter, Johnny Walker, Hugh Callaghan, Richard McIlkenny and Billy Power had spent nearly 17 years in prison for crimes they had not committed, and are widely considered to be victims of one the most notorious miscarriages of justice in British history. However, despite efforts to prevent future wrongful convictions, we find that innocent people are still at great risk of suffering perhaps the greatest injury that the state can inflict on its citizens. </p>
<p>When the six were released in 1991, hot on the heels of other high profile miscarriages of justice such as the <a href="http://www.telegraph.co.uk/news/uknews/crime/7795117/The-Guildford-Four-in-the-name-of-justice.html">Guildford Four</a>, it was hoped that lessons would be learned so that wrongful convictions do not happen again. </p>
<p>The Conservative government set about a root and branch reform of the criminal justice system, and the <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/271971/2263.pdf">ensuing report</a> of the Royal Commission on Criminal Justice made several recommendations for preventing and rectifying miscarriages of justice. However, the chair of the commission, Lord Runciman, <a href="http://thejusticegap.com/2013/07/pragmatism-over-idealism-an-interiew-with-lord-runciman/">has since admitted</a> that no attempt at reform could completely eradicate wrongful convictions.</p>
<p>There are a whole host of reasons why people still find themselves wrongly accused and convicted of crimes. <a href="http://thejusticegap.com/2015/11/we-were-never-going-to-be-collateral-damage/">False allegations</a>, especially those involving sexual offences, have resulted in the wrongful imprisonment of innocent people. Prosecutorial misconduct has led to suspects giving false confessions, as in the case of <a href="http://www.theguardian.com/uk/2009/jun/09/paul-blackburn-wrongly-convicted">Paul Blackburn</a>. </p>
<p>On occasion, <a href="http://thejusticegap.com/2011/11/poor-defence/">inadequate defence</a> by lawyers can mean that crucial evidence is sometimes missed. Additionally, the testimony of so-called experts can sway a jury to convict, even when the evidence provided does not stand up to scrutiny. In the cases of Sally Clark and Angela Cannings, <a href="http://www.theguardian.com/society/2005/jul/15/NHS.uknews1">expert evidence swayed the jury</a> to believe that they had killed their babies, but <a href="http://understandinguncertainty.org/node/545">subsequent research</a> showed that the evidence used to convict them was so methodologically flawed that their convictions were clearly unsafe.</p>
<p>If we can’t prevent wrongful convictions from ever happening, how do we at least ensure that people do not end up spending years, sometimes decades, in prison when they shouldn’t be there? </p>
<p>The Runciman Commission recommended the establishment of the <a href="http://www.ccrc.gov.uk/">Criminal Cases Review Commission</a> (CCRC). The Birmingham-based CCRC is an independent body with the remit of investigating possible miscarriages of justice and ensuring that appeals are submitted to the Court of Appeal swiftly. Since it began its work in 1997, the CCRC has referred 615 cases to the Court of Appeal, and of the 590 that have been heard, 404 appeals have been allowed. </p>
<p>In many respects, the work of the CCRC is to be commended. However, it is not the panacea for all the criminal justice system’s ills. The <a href="http://thejusticegap.com/2014/01/ccrc-austerity-came-early-us/">CCRC is inadequately funded</a>, and lacks the resources to investigate every claim fully. In fact, their statutory remit means that they are not there to advocate on behalf of prisoners. They are charged with investigating claims, and making a decision as to whether or not there is a “real possibility” that the Court of Appeal would overturn the conviction. </p>
<p>This can be a real problem when we recognise that <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1483721">two out of three applicants</a> to the CCRC have no legal representation, so their applications are not as rigorous as they might otherwise have been. Criminal appeals lawyers are poorly paid, with the result that many are unable or unwilling to take on cases that might sometimes run for years – especially when the bill is not settled until an appeal is finished. </p>
<p>In recent years, several new initiatives have been set up to assist alleged victims of miscarriages of justice put together their applications to the CCRC. Law schools across the country, including here at Birmingham, have also developed projects to investigate claims of wrongful conviction. </p>
<p>In 2014, Cardiff Law School’s Innocence Project <a href="http://www.independent.co.uk/student/news/dwaine-george-how-cardiff-law-school-s-innocence-project-discovered-scientific-evidence-was-of-no-a6850346.html">oversaw the successful appeal of Dwaine George</a>, who spent 12 years in prison for the shooting of 18-year-old Daniel Dale in Manchester before his release. Declaring the conviction “no longer safe” Sir Brian Leveson expressly praised the students who had worked so diligently on the appeal. </p>
<p>Earlier this year, the <a href="http://www.criminalappeals.org.uk/">Centre for Criminal Appeals</a> (CCA) received its legal aid contract, enabling it to provide legal assistance to prisoners who cannot afford the cost of a lawyer. The CCA was set up by people with experience of exonerating prisoners in the US, including those facing death sentences. Investigators and lawyers at the CCA emphasise the need for boots-on-the-ground investigation, to complement the desk-based work that has historically characterised criminal appeals work in England and Wales. </p>
<p>These initiatives work alongside campaigning organisations such as <a href="http://thejusticegap.com/category/miscarriages-of-justice-3/">The Justice Gap</a>, <a href="http://www.insidejusticeuk.com/">Inside Justice</a>, and the numerous other groups that have been set up by family members of the incarcerated – but there is only so much that a few committed but poorly paid lawyers and investigators can do. </p>
<p>The 25th anniversary of the release of the Birmingham Six should act as a clarion call: there are many innocent men and women languishing in prisons in the UK, who urgently need legal representation to turn the excruciatingly slow wheels of British justice.</p>
<p>We cannot let a miscarriage of justice to this scale ever happen again.</p><img src="https://counter.theconversation.com/content/56096/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bharat Malkani runs the Birmingham Law School Criminal Appeals Assistance Unit, which works alongside the Centre for Criminal Appeals. With six other universities, this joint venture received £40,000 funding from the Legal Education Foundation in 2014 to investigate cases, and to train the next generation of lawyers who will prosecute and defend people accused of crimes.</span></em></p>The Birmingham Six were released after spending 17 years in prison for crimes they did not commit – there’s still work to do to stop it happening again.Bharat Malkani, Lecturer, Birmingham Law School, University of BirminghamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/550502016-02-19T18:01:15Z2016-02-19T18:01:15ZJoint enterprise ruling is a chance to challenge racism in the justice system<p>A <a href="https://www.supremecourt.uk/cases/docs/uksc-2015-0015-judgment.pdf">landmark new ruling by the Supreme Court</a> in the UK is a tentative but positive step towards the abolition of a controversial law called joint enterprise. Our <a href="http://www.crimeandjustice.org.uk/publications/dangerous-associations-joint-enterprise-gangs-and-racism">recent research</a> suggests that changes in the use of the law – which allowed people to be convicted of a crime even if it is not proven they committed it – are likely to bring relief to the black community.</p>
<p>The <a href="https://theconversation.com/explainer-why-the-supreme-court-ruled-against-joint-enterprise-54981">Supreme Court recognised</a> that “foresight” that a crime might occur cannot be enough to secure conviction. This means that prosecution teams will now have to demonstrate “intent” rather than, as we have found, relying upon a series of racial stereotypes. </p>
<p>Our analysis was drawn from a survey of nearly 250 joint enterprise prisoners, a number of case studies and official criminal justice data on gangs and violence. </p>
<p>We asked prisoners about their relationship with the events of the offence, and to those identified as their co-defendants. Their answers were varied, and in a number of cases prisoners recognised culpability for lesser offences. Yet it was concerning that in nearly half (45%) of the 250 cases we surveyed, the prisoners were not at the scene of the crime. In these cases, this principle of foresight and its relationship to intent and culpability was key to connecting them to the crime and securing a joint enterprise conviction.</p>
<h2>‘Gang’ stereotypes used in court</h2>
<p><a href="http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/Justice/Joint%20Enterprise%20followup/written/10886.html">Evidence submitted</a> to the 2014 House of Commons justice select committee by academics from Cambridge University already indicated that joint enterprise may be disproportionately experienced by black and minority ethnic people. The researchers speculated that this may be due to an association that exists in the minds of the police, prosecutors and juries between young black and minority ethnic people and gangs. </p>
<p>We asked the joint enterprise prisoners about the evidence presented against them in court, in particular, whether there had been any reference to “gangs”. Four out of five – or 80% – of the black and minority ethnic respondents told us that the concept of the “gang” was drawn upon by the prosecution in their court case. This figure was significantly lower for white prisoners, as the graph below shows.</p>
<iframe src="https://datawrapper.dwcdn.net/AQC9D/1/" frameborder="0" allowtransparency="true" allowfullscreen="allowfullscreen" webkitallowfullscreen="webkitallowfullscreen" mozallowfullscreen="mozallowfullscreen" oallowfullscreen="oallowfullscreen" msallowfullscreen="msallowfullscreen" width="100%" height="200"></iframe>
<p>For white prisoners, in many cases no further evidence was used to demonstrate the gang narrative. But for the black and minority ethnic prisoners, a range of strategies and stereotypes were brought into the courtroom by prosecutors. “Gang names” such as “Johnson Crew”, “Gooch” or “Burger Bar” were referred to by the prosecution, depending on the area. </p>
<p>In other cases, the prosecution linked defendants to local neighbourhoods often highlighted in media stories about violence. In the case of black and minority ethnic defendants, our interviewees said that photographs on social media, music videos and rap lyrics were also used by prosecution teams of evidence of gang involvement.</p>
<p>Our research reveals that such associations, used to imply “common purpose” between the defendant and the person who carried out the crime, rely heavily upon racial stereotypes of young black men being involved with violent crime and gangs. Yet the overwhelming majority of joint enterprise prisoners, from all ethnicities, told us that they were not gang members and that this was a “made up feature of the prosecution case”.</p>
<p>One told us: “I have never been in a gang. I was a family man who had a good job.” Another said:</p>
<blockquote>
<p>One of my [co-defendants] was an active ‘gang member’ but I was not. I was a friend of a gang member so I was also judged to be a gang member.</p>
</blockquote>
<h2>Disrupting dangerous associations</h2>
<p>Our <a href="http://www.crimeandjustice.org.uk/publications/dangerous-associations-joint-enterprise-gangs-and-racism">analysis</a> of official police data also compared the ethnic profile of people who had been flagged as being involved with gangs to the ethnicity of those convicted of serious violent offences.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/112166/original/image-20160219-25882-1hh1n6x.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/112166/original/image-20160219-25882-1hh1n6x.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/112166/original/image-20160219-25882-1hh1n6x.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=382&fit=crop&dpr=1 600w, https://images.theconversation.com/files/112166/original/image-20160219-25882-1hh1n6x.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=382&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/112166/original/image-20160219-25882-1hh1n6x.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=382&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/112166/original/image-20160219-25882-1hh1n6x.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=481&fit=crop&dpr=1 754w, https://images.theconversation.com/files/112166/original/image-20160219-25882-1hh1n6x.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=481&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/112166/original/image-20160219-25882-1hh1n6x.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=481&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Gang membership by ethnicity.</span>
<span class="attribution"><a class="source" href="http://www.crimeandjustice.org.uk/sites/crimeandjustice.org.uk/files/Dangerous%20assocations%20Joint%20Enterprise%20gangs%20and%20racism.pdf">Dangerous associations: Joint enterprise, gangs and racism</a></span>
</figcaption>
</figure>
<p>While <a href="http://www.crimeandjustice.org.uk/publications/dangerous-associations-joint-enterprise-gangs-and-racism">we found that</a> the gang label is disproportionately attributed to young black men on police databases in Manchester, Nottingham and London, the ethnic profile of those accused or convicted of serious violence shows the opposite. Black people are not responsible for the majority of serious violence in these cities. In Manchester, for example, 89% of the gang database was black or minority ethnic, but only 23% of those convicted of serious youth violence were. </p>
<p>The government is starting to take note. At the end of January, Labour MP David Lammy <a href="https://www.gov.uk/government/news/review-of-racial-bias-and-bame-representation-in-criminal-justice-system-announced">was asked</a> by the prime minister to carry out a review of the evidence of possible bias against black defendants and other ethnic minorities. </p>
<p>The Supreme Court’s new ruling marks a significant step for the campaign led by <a href="http://www.jointenterprise.co/">Joint Enterprise – Not Guilty by Association</a> (JENGbA) to righting many injustices caused by joint enterprise. The campaign group have long argued that <a href="http://www.irr.org.uk/news/joint-enterprise-racism-and-bme-communities/">its use is racist</a>. </p>
<p>Yet joint enterprise prosecutions driven by racist “gang” stereotypes are just one mechanism driving disproportionate numbers of black people being incarcerated: <a href="http://www.crimeandjustice.org.uk/news/sharp-rise-proportion-young-bme-prisoners">over 40%</a> of young people in prison in England and Wales are from black minority ethnic communities. In order for joint enterprise not to be replaced by other forms of policing, prosecution or sentencing that overcriminalise young black men, we must challenge the racist tendencies at the heart of our criminal justice system.</p><img src="https://counter.theconversation.com/content/55050/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The report, Dangerous Associations: Joint Enterprise, gangs and racism by Becky Clarke and Patrick Williams was commissioned by the Centre for Crime and Justice Studies in a response to a call by the House of Commons Justice Committee.</span></em></p>Prosecutors will no longer be able to fall back on racist stereotypes of gang violence.Becky Clarke, Senior Lecturer, Department of Sociology, Manchester Metropolitan UniversityPatrick Williams, Senior Lecturer, Manchester Metropolitan UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/549812016-02-18T17:36:46Z2016-02-18T17:36:46ZExplainer: why the Supreme Court ruled against joint enterprise<figure><img src="https://images.theconversation.com/files/112010/original/image-20160218-23704-1qqjwqn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The scales of justice have been rebalanced. </span> <span class="attribution"><span class="source">sebra/www.shutterstock.com</span></span></figcaption></figure><p>Hundreds of convictions may need to be re-examined after a <a href="https://www.supremecourt.uk/cases/docs/uksc-2015-0015-judgment.pdf">landmark Supreme Court judgement</a> found that a man found guilty of murder under the controversial “joint enterprise” principle should have his murder conviction quashed.</p>
<p>The man, Ameen Jogee, <a href="http://www.bbc.co.uk/news/uk-35598896">was convicted</a> after the jury in his original trial believed him guilty of encouraging the killer, Mohammed Hirsi, who actually struck the fatal blow – even though Jogee was outside the building when the murder occurred. </p>
<p>Jogee will not be released because his manslaughter conviction remains. But the court judgement blows apart the premise upon which the “joint enterprise” principle, defended by successive governments as a central plank in tackling “gang violence”, has rested. </p>
<p>The ruling is likely to have implications for many existing joint enterprise convictions. An investigation by the Bureau of Investigative Journalism uncovered that <a href="https://www.thebureauinvestigates.com/2014/03/31/read-the-report-joint-enterprise-an-investigation/">479 so-called “secondary parties”</a> were convicted of joint enterprise murder between 2005 and 2013.</p>
<h2>Long history calling for reform</h2>
<p>Pressure has been building upon the principle of joint enterprise prosecution since at least 1993, when the <a href="http://www.lawcom.gov.uk/wp-content/uploads/2015/06/No.131o-Assisting-and-Encouraging-Crime-An-Overview.pdf">Law Commission consulted on</a> whether such prosecutions were “unsound in principle”. </p>
<p>In the years that followed, the police and Crown Prosecution Service had begun to collaborate with joint enterprise prosecutions in order to sidestep a number of difficulties they faced bringing gang prosecutions. Subsequently, in a 2007 report on collective participation in crime, the Law Commission <a href="http://www.lawcom.gov.uk/wp-content/uploads/2015/03/lc305_Participating_in_Crime_report.pdf">recommended</a> a particularly limited interpretation of joint enterprise, but still the government declined to act. </p>
<p>The House of Commons Justice Select Committee twice recommended abolition of joint enterprise in <a href="http://www.publications.parliament.uk/pa/cm201012/cmselect/cmjust/1597/1597.pdf">2012</a> and <a href="http://www.publications.parliament.uk/pa/cm201415/cmselect/cmjust/310/310.pdf">2014</a>; but, in turn, justice ministers Kenneth Clarke and Chris Grayling defended the pragmatic utility of the law. </p>
<p>In 2010, a campaign organisation <a href="http://www.jointenterprise.co/">JENGbA</a> (Joint Enterprise – Not Guilty by Association) was formed to fight for the law’s repeal and now represents some 600 people convicted under the law.</p>
<h2>30 years of misconstruing the law</h2>
<p>Central to the Supreme Court’s argument in setting aside the 2011 joint enterprise murder conviction was the way that this aspect of judge-made Common Law has evolved, over time, from case to case and circumstance to circumstance. </p>
<p>According to the <a href="https://www.supremecourt.uk/cases/docs/uksc-2015-0015-judgment.pdf">five Law Lords</a> in the Supreme Court, the courts have been misconstruing the law, and judges have been misdirecting juries regarding crucial interpretations of “criminal intent” and “foresight”, for more than 30 years.</p>
<p>The law has its origins in laws to deter the practice of duelling and therefore criminalised both the “duellist” (who may have fired a critical shot) and their “seconds” who ought to have had reasonable foresight that a serious injury would result. </p>
<p>Yet, as <a href="http://onlinelibrary.wiley.com/doi/10.1111/j.1468-2230.2010.00809.x/abstract">recent critics</a> have argued, there is a world of difference between “foreseeability” and whether any given person actually foresaw the eventual, fatal, offence – let alone whether they contributed to it. </p>
<h2>Gangs in their sites</h2>
<p>In recent years, influenced by copious amounts of police evidence regarding “gang affiliations”, juries appear to have been more readily persuaded that so-called “gang involved” young people ought to share in the culpability of their friends and associates.</p>
<p>One of the most famous cases, <a href="http://www.yallop.co.uk/toencouragetheothers.aspx">Derek Bentley and Christopher Craig from 1952-3</a>, saw Bentley convicted and eventually executed after Craig had shot and killed a police officer during a burglary attempt. Craig, aged only 16, escaped execution. Bentley’s conviction was posthumously quashed in 1998 after a prolonged campaign, but the essentials of joint enterprise law were retained. </p>
<p>Following the upturn in gang-related violence, during the 1990s, and the incorporation of a similar principle of “collective liability” within the <a href="http://www.legislation.gov.uk/ukpga/2004/28/contents">Domestic Violence, Crime and Victims Act 2004</a> joint enterprise came to be mainstreamed in the government’s tackling gangs strategy.</p>
<p>It is here that another invidious aspect of the law becomes apparent: joint enterprise is used to tackle gang related violence, yet the label “gang-related” violence is employed disproportionately when <a href="http://www.crimeandjustice.org.uk/publications/dangerous-associations-joint-enterprise-gangs-and-racism">the perpetrators are black</a>. </p>
<p>A joint enterprise prosecution was eventually vital to the prosecution of <a href="http://news.sky.com/story/1644154/who-has-been-jailed-under-joint-enterprise">Stephen Lawrence’s killers</a>. Yet there is some irony that the current targeting of many prosecutions has the discomforting look about it of “<a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/277111/4262.pdf">institutional racism</a>”, Lord Macpherson’s original complaint about the Metropolitan Police in the wake of Lawrence’s murder.</p>
<p>Of course, the recent Supreme Court judgement is unlikely to change all of this, even though the court’s rejection of a threshold of culpability drawn too loosely and too low may prompt a number of appeals. These will only, ultimately, be resolved on the evidence. </p>
<p>The substance of joint enterprise is likely to remain, unless the government is persuaded, finally, to do what the Law Commission and the Justice Select Committee have been arguing for some time and fundamentally reform the law.</p><img src="https://counter.theconversation.com/content/54981/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter Squires does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Law lords ruled that a controversial law which has led to hundreds of murder convictions has been misconstrued.Peter Squires, Professor of Criminology & Public Policy, University of BrightonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/506892015-11-18T13:22:59Z2015-11-18T13:22:59ZWhen couples co-offend: who’s to blame in criminal relationships?<figure><img src="https://images.theconversation.com/files/102020/original/image-20151116-4967-zlhz12.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Nathan Matthews and Shauna Hoare.</span> <span class="attribution"><span class="source">PA/Police handout</span></span></figcaption></figure><p>Co-offending couples have featured heavily in the news recently, with the cases of Nathan Matthews and Shauna Hoare, <a href="http://www.theguardian.com/uk-news/2015/nov/11/becky-watts-stepbrother-nathan-matthews-guilty-murder">found guilty of killing</a> Becky Watts; and <a href="http://www.dailymail.co.uk/news/article-3314377/Girlfriend-groomed-teenage-girls-online-boyfriend-sexually-abuse-rape-jailed-two-years.html">Grant Francis and Hayley Morgan</a>, convicted of sexual offences against children. </p>
<p>These co-offending relationships are not a new phenomenon – some of the most infamous and heinous criminal cases in UK legal history have involved co-offending couples – for example, serial killers <a href="http://www.independent.co.uk/news/the-horrific-secrets-of-25-cromwell-street-1576291.html">Fred and Rosemary West</a>; and <a href="http://news.bbc.co.uk/onthisday/hi/dates/stories/may/6/newsid_2512000/2512119.stm">Ian Brady and Myra Hindley</a>.</p>
<p>Questions often arise in such cases about the nature of the relationship between the offenders and whether it has influenced either of the individuals’ criminal behaviour – in particular, whether the male has coerced their female partner into being involved in the crime. The perception, after all, is often that women tend not to commit particularly violent crimes, such as murder or sexual offences – especially not alone. </p>
<p>This perception, however, is plain wrong. Women do commit such offences – and as sole defendants, too. </p>
<p><a href="http://www.theguardian.com/uk-news/2014/feb/28/joanna-dennehy-serial-killer-first-woman-die-in-jail">Joanne Dennehy</a>, for example, was sentenced to life in prison in 2014 for murdering three men. And statistics tell us that between 2003 and 2014 <a href="http://www.ons.gov.uk/ons/publications/re-reference-tables.html?edition=tcm%3A77-376027">492 women were convicted of a homicide offence</a> in the UK. Although some of these offences will have been convicted with a co-offender, many were committed alone. </p>
<h2>Imbalance of power</h2>
<p>In cases involving co-offending couples, the relationship often is presented – especially by the media – as involving an imbalance of power, with the male defendant initiating and leading the offending and thus dominating his female partner. But this is not always the case. <a href="http://www.theguardian.com/uk-news/2015/sep/28/norwich-paedophile-ring-marie-black-jailed-life">Marie Black</a>, for example, was jailed for life earlier this year for being at the centre of – and instrumental in running – a paedophile ring involving both male and female co-defendants. </p>
<p>However, in those cases where the female co-defendant is particularly vulnerable and is dominated by their male co-offending partner, it must be considered that the relationship may have influenced their offending behaviour. But we must be careful not to completely deny the agency of these women. Their choice to participate in the offences with their male partner must be recognised. To simply deny their agency because of the involvement of a potentially dominant male co-offender reinforces damaging gender stereotypes surrounding both masculinity and femininity, gender stereotypes that construct men as powerful, dominant, confident and aggressive, and women as passive, weak, easily led and non-violent. </p>
<h2>Abuse and control</h2>
<p>Take the example of Shauna Hoare who was convicted of the manslaughter of Becky Watts alongside her co-defendent Nathan Matthews, who was convicted of murder. Hoare provided evidence of Nathan Matthews’ abusive and coercive behaviour. In sentencing Hoare, the judge <a href="http://courtnewsuk.co.uk/?news_id=42619">explicitly acknowledged this</a>, noting that Matthews had exercised significant control over her life, threatening and being violent towards her.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/102152/original/image-20151117-30404-u93pe7.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/102152/original/image-20151117-30404-u93pe7.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/102152/original/image-20151117-30404-u93pe7.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=419&fit=crop&dpr=1 600w, https://images.theconversation.com/files/102152/original/image-20151117-30404-u93pe7.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=419&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/102152/original/image-20151117-30404-u93pe7.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=419&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/102152/original/image-20151117-30404-u93pe7.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=526&fit=crop&dpr=1 754w, https://images.theconversation.com/files/102152/original/image-20151117-30404-u93pe7.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=526&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/102152/original/image-20151117-30404-u93pe7.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=526&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Myra Hindley and Ian Brady.</span>
<span class="attribution"><span class="source">Wikimedia Commons</span></span>
</figcaption>
</figure>
<blockquote>
<p>He would only let her smoke if she paid him for smoking. He called her fat. He used violence against her on a number of occasions, pulling her hair, shoving her into a wall, and on one occasion strangling her … he refused to allow the heating to be put on because of the cost</p>
</blockquote>
<p>The judge also noted that Matthews was dominant in their relationship, “persuading” Hoare to participate in his fixation of “<a href="http://courtnewsuk.co.uk/?news_id=42619">having sex with petite teenage girls</a>”. He also <a href="http://courtnewsuk.co.uk/?news_id=42619">explicitly made reference</a> to the influence of the relationship on Hoare’s involvement in Becky’s death, noting:</p>
<blockquote>
<p>Shauna Hoare was a person of previous good character. Her involvement in these offences was very much a product of the nature of the relationship with Nathan Matthews</p>
</blockquote>
<p>Thus the complexities and intricacies of being involved in such an abusive and coercive relationship must be considered when exploring Hoare’s involvement in Becky Watts’ death. Simultaneously, however, Hoare’s part in the crime cannot automatically be denied, but rather should be acknowledged within the context of the toxic and abusive relationship she had with Matthews. </p>
<p>When exploring co-offending relationships, it is too simplistic to view female co-defendants as either “victims” or “evil” and lacking agency. Rather it is important to consider the co-offending relationship and its complex power dynamics, intricacies and nuances, which are often amplified when compared to many intimate relationship. This would allow for the agency of the participants to be acknowledged, while simultaneously allowing for the choices, particularly of female co-defendants, to be contextualised.</p><img src="https://counter.theconversation.com/content/50689/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Siobhan Weare is affiliated with Lancaster University. </span></em></p>It’s important to look beyond the same old gender sterotypes.Siobhan Weare, Lecturer in Law, Lancaster UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/429702015-08-01T07:23:37Z2015-08-01T07:23:37ZDeath penalty: is capital punishment morally justified?<figure><img src="https://images.theconversation.com/files/86259/original/image-20150624-31498-1nly0bq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">from www.shutterstock.com</span></span></figcaption></figure><p>The execution, by hanging, of <a href="http://www.bbc.co.uk/news/world-asia-india-33713407">Yakub Memon</a> for his part in the 2003 Mumbai bombings invites us to revisit the vexed issue of capital punishment. Few topics incite such moral passion and controversy.</p>
<p>The <a href="http://www.bbc.co.uk/ethics/capitalpunishment/">world’s religious communities are divided</a> on the death penalty. Despite a seemingly unambiguous commitment to non-violence (or “Ahimsa”) in both Hinduism and Buddhism, scholars within those traditions continue to debate the permissibility of lethal punishment. The Old Testament enjoins us to take an “eye for an eye” – the principle of <em>lex talionis</em> – while the New Testament exhorts us to “turn the other cheek”. And while Islam is generally regarded as compatible with the death penalty, the Qur'an’s emphasis on forgiveness suggests that Muslims should sometimes respond to evil with mercy, not retaliation.</p>
<p>While many European countries urge an ethic of rehabilitation in their criminal justice systems, many jurisdictions in the United States stand firmly in favour of capital punishment for serious crimes. Even a federal jury in Massachusetts, a liberal bastion, recently <a href="http://www.nytimes.com/2015/05/16/us/dzhokhar-tsarnaev-death-sentence.html?_r=0">doled out</a> the death penalty to the sole surviving perpetrator of the Boston marathon bombing. And while the United Kingdom abandoned the death penalty in 1964 – the year of the last executions – nearly half of the British public <a href="http://europe.newsweek.com/uk-support-death-penalty-falls-below-50-first-time-316869">favours</a> a reintroduction of it (though that figure has been dropping steadily).</p>
<p>We will not make progress in the public debate about the death penalty unless we realise that it is only one element in a much bigger controversy: about the point of punishment itself. As The Conversation invites us to rethink the death penalty over the next few weeks, we must not conduct this discussion in a vacuum. Before you ask yourself whether we should have the death penalty, consider: why hand out any punishments at all? Considering the three main families in the philosophy of punishment can help us organise our conversation.</p>
<h2>Retribution</h2>
<p>“Bad guys deserve to suffer.” This is a blunt slogan, but it captures the essence of a deeply familiar notion: people who have committed culpable wrongs deserve their lives to go worse as a result. Why do they deserve it? Perhaps because it’s not fair for the lives of wrongdoers to go well when the lives of the innocent have gone poorly – punishment levels the playing field. Whatever the reason, “retributivists” – those who believe in retribution – argue that the punishment of criminals is <em>intrinsically</em> valuable; it is valuable in and of itself, rather than valuable because of its good consequences (for example, preventing future crime). </p>
<p>Even if punishing murderers and thieves had no effect on reducing the overall crime rate, retributivists tend to think it’s still the right thing to do. Retributivists also think that the severity of punishment should match the severity of the crime. So, just as it is wrong to over-punish someone (executing someone for stealing a pair of shoes), it can be wrong to under-punish someone (giving him a community service order for murder). </p>
<p>If you are a retributivist, you might support the death penalty because you think that certain or all murderers (and perhaps other criminals) deserve to suffer death for their crimes. Depending on how you think about death, however, you might oppose the death penalty on the grounds that it is disproportionately harsh – perhaps you think that no matter what someone has done, she does not deserve to die for it. </p>
<p>On the other hand you might oppose the death penalty on the grounds that it is disproportionately light. Many people who opposed the recent death sentence for the Boston bomber <a href="http://www.washingtonpost.com/news/post-nation/wp/2015/02/25/can-life-in-prison-might-be-worse-than-death-some-tsarnaev-jurors-think-so/">did so</a> on the grounds that life in a maximum-security prison would be a worse punishment – and so more fitting – than death.</p>
<h2>Deterrence</h2>
<p>“Criminals should be punished so that they and others will be less likely to commit crime in the future, making everybody safer.” Many people criticise retributivism on the grounds that it is nothing but a pointless quest for barbaric revenge. </p>
<p>Inflicting suffering on human beings, if it is to be morally justified, must instead have a forward-looking purpose: protecting the innocent from harm. If this sounds sensible to you, you probably believe the point of punishment is not retribution, but rather deterrence. </p>
<p>The idea here is familiar enough: people face temptations to break just laws; the demands of morality and the demands of rational self-interest sometimes seem to diverge. Threats of punishment realign those demands by making it irrational for self-interested individuals to break the law.</p>
<p>If you are a defender of deterrence, you must answer two questions about capital punishment before determining where you stand. The first is empirical: a question about real-world facts. Does the threat of the death penalty actually deter people from committing heinous crimes to a greater extent than the threat of life imprisonment? </p>
<p>The second question is moral. Even if the death penalty deterred crime more successfully than life imprisonment, that doesn’t necessarily mean it would be justified. After all, imagine if we threatened execution for all crimes, including minor traffic violations, theft, and tax fraud. </p>
<p>Doing so would surely slash the crime rate, yet most people would judge it to be wrong. Deterrence theorists tend to defend some upper limit on the harshness of punishment – and it may be that death simply goes beyond what the government is ever permitted to threaten.</p>
<h2>Reform</h2>
<p>“Punishment communicates to criminals that what they have done is wrong, and gives them an opportunity to apologise and reform.” There are many different variants of <a href="http://ukcatalogue.oup.com/product/9780195166668.do">this view</a>: educative, communicative, rehabilitative – and there are important differences between them. But the basic idea is that punishment should make the wrongdoer understand what he or she has done wrong and inspire her to repent and reform. </p>
<p>Whatever version of this view one supports, its implication for the death penalty is reasonably clear. What is the point of a criminal reforming herself as she prepares for the execution chamber?</p>
<p>To be sure, many people try to mix and match different elements of these three broad views, though such mixed theories tend to be unhelpfully <em>ad hoc</em> and can offer conflicting guidance. Far better, to my mind, to plant one’s flag clearly and answer the question: which view should have priority in our thinking about punishment? </p>
<p>Then, and only then, can we proceed to think about the justice (or lack thereof) of governments who kill their citizens.</p>
<hr>
<p><em>This article is part of a series on capital punishment that The Conversation is publishing. Click <a href="https://theconversation.com/topics/capital-punishment">here</a> to read more.</em></p><img src="https://counter.theconversation.com/content/42970/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jeffrey Howard receives funding from the British Academy.</span></em></p>What are the arguments for and against the death penalty and do they stand up to examination?Jeffrey Howard, Lecturer in Political Philosophy, University of EssexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/437272015-06-23T13:44:14Z2015-06-23T13:44:14ZHow Michael Gove is changing the tune on justice reform<figure><img src="https://images.theconversation.com/files/86113/original/image-20150623-19397-1ekocuz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Lady Justice, meet your new Lord Chancellor.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/ronmacphotos/8704601937/sizes/l">Ronnie Macdonald</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>In his <a href="http://www.bbc.co.uk/news/uk-politics-33230552">first speech</a> as Lord Chancellor and justice secretary, Michael Gove has painted a dystopian picture of a UK legal system in which the rich receive justice and the poor do not. Many would acknowledge his depiction as accurate.</p>
<p>Striking a bold tone in his new job, Gove has said that major change is on the horizon – and given hints as to how it should be achieved. But even though his vision appears laudable, he must be careful how he goes about bringing it to life. </p>
<p>Gove recounted with dismay his observations of court proceedings throughout the country, where attempts to bring justice are thwarted by procedural inefficiency and inadequate legal representation. He described a “<a href="http://www.theguardian.com/politics/2015/jun/22/justice-system-failing-badly-michael-gove">creaking outdated system</a>” in urgent need of reform.</p>
<p>Few people who work within the legal system would disagree with this view. But there are many who would say that the failures are in part due to <a href="http://www.theguardian.com/law/2013/jul/10/cps-lack-resources-funding-cutbacks">consistent underfunding</a> by successive governments and sustained <a href="http://www.theguardian.com/law/2013/jun/04/outcry-over-legal-aid-reforms">attacks on legal aid rates</a>.</p>
<h2>A different approach</h2>
<p>Gove does seem to be signalling a clear change in direction from that of his predecessor. Where Chris Grayling spoke of “<a href="http://www.independent.co.uk/news/uk/home-news/courts-hit-as-lawyers-stage-unprecedented-national-walkout-over-legal-aid-cuts-9040222.html">fat cat lawyers</a>”, Gove speaks of the “scrupulous patience, intellectual diligence and culture of excellence” that characterises some lawyers. </p>
<p>Perhaps more importantly, he recognises the economic value to the country as a whole of having a justice system of international repute sustained by advocates of the highest calibre.</p>
<p>Gove endorses the <a href="http://www.theguardian.com/society/2015/jan/23/leveson-review-sweeping-efficiency-reforms-justice-system">conclusions of the Leveson review</a> about “efficiency in the criminal justice system”. The review, published in early 2015, set out 55 recommendations to expedite cases through the criminal justice system from arrest to trial.</p>
<p>Some of these, such as a limit on the content of advocate’s speeches can be achieved easily. Some, however, will require sustained and substantial investment. The justice system proposed by Leveson would involve running preliminary hearings virtually to save time and money. But that will require <a href="http://www.lawgazette.co.uk/law/leveson-cost-cutting-review-backs-virtual-courtrooms/5046235.fullarticle">high quality, reliable and secure technology</a> (as well as lawyers, judges and court staff who can operate it).</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/86091/original/image-20150623-19397-eh450t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/86091/original/image-20150623-19397-eh450t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=497&fit=crop&dpr=1 600w, https://images.theconversation.com/files/86091/original/image-20150623-19397-eh450t.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=497&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/86091/original/image-20150623-19397-eh450t.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=497&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/86091/original/image-20150623-19397-eh450t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=624&fit=crop&dpr=1 754w, https://images.theconversation.com/files/86091/original/image-20150623-19397-eh450t.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=624&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/86091/original/image-20150623-19397-eh450t.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=624&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">New gig for Gove.</span>
<span class="attribution"><a class="source" href="http://www.epa.eu/politics-photos/government-photos/cabinet-meeting-in-london-photos-50838603">'Facundo Arrizabalaga/EPA'</a></span>
</figcaption>
</figure>
<p>Gove’s speech also offered a glimmer of hope for legal aid lawyers. He said it makes more sense to find savings by “looking again” at the court estate than to cut this “vital” service. That sounds like a plan to sell off underused buildings, though, which will need careful thought.</p>
<p>In many rural areas, a local magistrates court might only be used on a part-time basis but they nevertheless save witnesses and defendants from having to make lengthy and expensive journeys to court. And, as Gove recognises, these are often people from the poorest sections of society. Many rural areas have already experienced closures and the courts that have taken over their case loads have experienced the frustration of <a href="http://www.bbc.co.uk/news/uk-politics-11993436">cases being delayed</a> due to public transport delays.</p>
<h2>Making friends with angry lawyers</h2>
<p>There was also an indication in this speech that Gove is expecting those at the more profitable end of the legal profession to contribute more by way of free legal advice and representation to the neediest in society.</p>
<p>As yet no details have been released explaining how this will be achieved and what services he is expecting them to provide. In reality those who are in the particularly lucrative areas of law often have very specialist areas of knowledge and expertise which serve them well in their chosen sector but may not make them ideally suited to the type of work undertaken by lawyers who work with the most vulnerable in society on a daily basis.</p>
<p>There are of course, very many successful lawyers who willingly undertake pro-bono work to a very high standard but a system which operates through compulsion risks forcing those without the necessary skills or enthusiasm into an already sensitive situation. </p>
<p>There is bound to be a certain amount of cynicism about Gove’s ability to deliver his vision for the legal system, and about the mechanisms he wants to put in place to achieve it. At the same time though, many will welcome Gove’s recognition of high-quality advocacy as a vital component of democracy – even if that should be a given from the Lord Chancellor. </p>
<p>If Gove wants his proposals to succeed, he will need the support and the trust of the legal profession. That trust that can only be won through dialogue and a commitment to investment in both resources and staff.</p><img src="https://counter.theconversation.com/content/43727/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jeremy Robson works as a Barrister a well as a Senior Lecturer at Nottingham Law School.</span></em></p>Gove wants to shake things up but seems to appreciate that lawyers are at the end of their tether.Jeremy Robson, Senior Lecturer, College of Business Law & Social Sciences, Nottingham Law School, Nottingham Trent UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/415902015-05-12T09:36:00Z2015-05-12T09:36:00ZWhy abolishing the Human Rights Act will be a rough ride for Michael Gove<figure><img src="https://images.theconversation.com/files/81268/original/image-20150511-19528-4gh7ku.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A fight on his hands.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/policyexchange/16457122345">Policy Exchange/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>The eradication of the Liberal Democrats as a major political force is already having some rather stark consequences – and one of them may be the end of the 1998 Human Rights Act.</p>
<p>While Nick Clegg never made the act’s preservation a “red line” for any coalition negotiations, the Lib Dems had been <a href="http://www.libdems.org.uk/simon_hughes_responds_to_conservative_human_rights_plans">enthusiastic defenders</a> of the act since its inception. The 2010 <a href="http://www.theguardian.com/politics/2010/may/20/conservative-liberal-democrat-coalition-agreement-analysis">coalition agreement</a> committed the last government to establishing <a href="http://www.justice.gov.uk/about/cbr">an independent Bill of Rights Commission</a> to look at the act and Britain’s relationship with the European Court of Human Rights. It also specifically stated that the purpose of the commission was to ensure “that these rights continue to be enshrined in British law” and promote a better understanding of existing obligations. </p>
<p>So the coalition’s stated policy was never to abolish the Human Rights Act (HRA), but instead to enhance it and examine the basis of hostility towards it. </p>
<h2>Impressions over substance</h2>
<p>The Conservative Party was involved in the creation of the European Convention of Human Rights in the 1950s. Yet its <a href="https://www.conservatives.com/%7E/media/files/activist%20centre/press%20and%20policy/manifestos/manifesto2010">2010 party manifesto</a> (written before the later coalition agreement) committed to repealing the act. This idea of repeal was originally devised in 2007 as a sweetener for the party’s right-wing eurosceptic flank, and was also a useful way to respond to concerns about violent crime. This means that the case levelled against the act has been incoherent, based on negative impressions rather than the actual substance of the legislation. </p>
<p>After the 2010 election, the job of examining the act was hived off to the commission. <a href="http://webarchive.nationalarchives.gov.uk/20130128112038/http://www.justice.gov.uk/downloads/about/cbr/uk-bill-rights-vol-1.pdf">When the commission reported</a> in late 2012 it came down in favour of preserving the act as it stood – but noted that there was a need for broader public education on protection rights. </p>
<p>So for a while, the act seemed more or less safe. But a mid-term decline in the Conservatives’ electoral confidence prompted a move to the right and led to home secretary Theresa May <a href="http://www.theguardian.com/law/2013/sep/30/conservitives-scrap-human-rights-act">committing a future Conservative government</a> to repealing the act in favour of a “British bill of rights” – clearly spurred by the difficulties she faced deporting terrorist suspects such as <a href="http://www.bbc.co.uk/news/uk-19730438">Abu Hamza</a>. </p>
<p>David Cameron again returned to the idea of a British bill of rights in his 2014 conference speech, arguing that it could alleviate the restrictions and conflicts created by the European Convention on Human Rights. The idea is that a bill of rights would replicate the European Convention but prevent human rights from being used in “trivial cases” and stop the European Court of Human Rights from “having a say” over British laws. Cameron’s proposal was met with <a href="http://www.theguardian.com/politics/2014/oct/01/cameron-pledge-scrap-human-rights-act-civil-rights-groups">broad criticism</a>, and there are suggestions that its interpretation of the convention is <a href="http://publiclawforeveryone.com/2014/10/03/my-analysis-of-the-conservative-partys-proposals-for-a-british-bill-of-rights/">seriously distorted</a>. </p>
<p>Given this context, the options for incoming justice secretary Michael Gove are not easy. </p>
<h2>What would abolition involve?</h2>
<p>As the legal journalist Joshua Rosenberg <a href="http://www.theguardian.com/commentisfree/2015/may/11/human-rights-reform-michael-gove-justice-secretary">argued</a>, if Gove commissioned a green paper for consultation, he would “come to realise that there is really no need for any significant reform at all.” Most of the “problems” associated with the act can be addressed without abolishing it. For instance, greater clarity on Section 2 of the act, which requires judges to “take into account” European court decisions in their judgments, can be achieved without legislative reform. </p>
<p>Thorny individual issues such as <a href="https://theconversation.com/prisoners-should-not-be-locked-out-of-democracy-19255">prisoners’ voting rights</a> will still be tricky, but given that a straightforward repeal of the act would not eliminate the effect it has via case law, it would make more sense to oppose such issues on a case-by-case basis rather than try and reset English law to its pre-1998 position – a herculean task that could have myriad knock-on effects. </p>
<p>For one, a straightforward exit from the convention would be a constitutional nightmare. Our participation in it is entangled with the terms of the Good Friday agreement and the devolution settlement there requires UK membership of the convention. Beyond that, the foreign policy consequences of leaving it would be disastrous, as this would significantly undermine the ability of the UK to exert global leadership on human rights issues.</p>
<p>The Conservatives do at least seem to realise that abolition is no simple matter, and that moving away from Europe on human rights has its limits. While the party’s 2015 manifesto proposed the bill of rights and abolishing the act, it didn’t mention <a href="https://s3-eu-west-1.amazonaws.com/manifesto2015/ConservativeManifesto2015.pdf">full withdrawal</a> from the European Convention which the act is designed to enshrine in UK law.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/81270/original/image-20150511-19566-1ax45mt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/81270/original/image-20150511-19566-1ax45mt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=337&fit=crop&dpr=1 600w, https://images.theconversation.com/files/81270/original/image-20150511-19566-1ax45mt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=337&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/81270/original/image-20150511-19566-1ax45mt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=337&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/81270/original/image-20150511-19566-1ax45mt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/81270/original/image-20150511-19566-1ax45mt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/81270/original/image-20150511-19566-1ax45mt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The European Court of Human Rights.</span>
<span class="attribution"><a class="source" href="http://en.wikipedia.org/wiki/European_Court_of_Human_Rights#/media/File:European_Court_of_Human_Rights.jpg">CherryX via Wikimedia Commons</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<h2>A rough ride ahead</h2>
<p>Despite the threat to civil liberties and constitutional problems that would open up questions about deportation, extradition, and rights on access to justice, there could be an upside to a serious debate on what a British bill of rights would look like. </p>
<p>There are <a href="http://rightsinfo.org/the-election-result-means-big-changes-are-coming-for-human-rights/">those who argue</a> that a debate on this could be a chance to engage the public in why rights are important and imbue the result with a real sense of public ownership. </p>
<p>This is certainly possible. As the independent commission identified in its report, the HRA has never enjoyed genuine public legitimacy. In the context of much greater devolution within the UK and a massive change in Britain’s <a href="https://theconversation.com/britains-political-earthquake-the-aftershocks-for-uk-and-europe-41588">relationship with the European Union</a>, there is going to be an ongoing process of constitutional debate which debate over a British bill of rights could compliment. Martin Howe, a leading barrister who helped draft plans to scrap the HRA, recently said that a <a href="http://www.theguardian.com/law/2015/may/11/tory-british-bill-of-rights-martin-howe-human-rights-act">40-page draft outlining</a> such a bill was already in existence – but would needs years of consultation.</p>
<p>The problem with all of this is that Gove apparently wants to move quickly and incorporate proposals for abolishing the HRA in the next Queen’s Speech on May 27. This imperative shows just how hostile the Conservative Party is to the HRA, even though its opposition has so far resulted in a series of reactionary spasms rather than a detailed constitutional reform programme. </p>
<p>Given all the obstacles mentioned above, there is a real risk that we could end up with only a very minor series of reforms which do not address the eurosceptic political sentiment behind the calls for abolition. On the other hand, if Gove and Cameron forge ahead regardless of the consequences, we could see a dramatic lurch to the right with a wholesale abolition of the act, which would tee up a major fight with the Council of Europe. </p>
<p>In either event, the wafer-thin Conservative majority and the competing wings of the party plus the importance of the act to the opposition parties in the new parliament will make this process a very rough ride.</p><img src="https://counter.theconversation.com/content/41590/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Frederick Cowell is a member of the Labour Party</span></em></p>The Tories have had the Human Rights Act in their sights for some time – but now they’ve got a chance to do take it out, they could end up living a nightmare.Frederick Cowell, Lecturer in Law, researcher in international law, Birkbeck, University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/396572015-04-01T17:13:55Z2015-04-01T17:13:55ZManifesto Check: Plaid Cymru’s feel-good thinking won’t cut it for crime and justice<figure><img src="https://images.theconversation.com/files/76802/original/image-20150401-31292-ir0nxf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Plaid want police to acknowledge the needs of victims - but how?</span> <span class="attribution"><a class="source" href="http://www.shutterstock.com/cat.mhtml?lang=en&language=en&ref_site=photo&search_source=search_form&version=llv1&anyorall=all&safesearch=1&use_local_boost=1&search_tracking_id=zvhzLc5WaqlX6SjE5GV-Tg&searchterm=police&show_color_wheel=1&orient=&commercial_ok=&media_type=images&search_cat=&searchtermx=&photographer_name=&people_gender=&people_age=&people_ethnicity=&people_number=&color=&page=1&inline=244903102">from www.shutterstock.com</a></span></figcaption></figure><p><em>Welcome to The Conversation’s Manifesto Check. Over the coming weeks, academics from across the UK will subject each party’s manifesto to unbiased, expert scrutiny. The result will be a complete guide to the factual accuracy and plausibility of policies relating to health, crime, immigration, and more, right across the political spectrum. Plaid Cymru is the first party in the spotlight – here’s what our expert had to say about crime and justice in <a href="http://www.partyof.wales/2015-manifesto/">the party’s manifesto</a>.</em></p>
<p>Apart from the emphasis on devolution and localisation there is nothing new on crime and justice in Plaid Cymru’s manifesto. It is feel-good thinking, rather than tough and clear policies.</p>
<p>In essence, the crime and justice measures outlined in the manifesto are a straight application of Plaid Cymru’s core policy of ever greater devolution to policing, prosecution, courts and prisons and probation. But showing that local control leads to greater effectiveness and better outcomes is a great deal more difficult than putting together a wish-list which would be familiar to many practitioners in the field. </p>
<p>It is, for example, motherhood and apple pie stuff to propose that criminal justice professionals be trained not to ignore the victim. There are serious questions to be answered regarding how, in what context and with what resources, victims’ needs should be acknowledged. </p>
<p>Ways of addressing the victims’ needs could be simple – such as informing them of the outcome of an investigation or court case – or complex and resource-intensive, like social and psychological support. If Plaid Cymru want the latter, they will need to decide who will deliver it, given that social work and probation services are <a href="http://www.bbc.co.uk/news/uk-30287880">already fully stretched</a>. </p>
<p>There is no one, no government, which would dissent from the proposition that prevention is better than cure – in criminal justice as elsewhere. The question – and it is constantly asked – is how to do this. It is hard to see how greater localisation of agencies will provide answers any more effectively than the present distribution of powers. </p>
<p>Likewise, it is implausible to claim that devolved criminal justice could come up with a better sentencing structure. These powers were devolved until relatively recent times, and the resultant disparity in sentencing proved intolerable. To address the difference in sentences between substantively similar crimes, the Sentencing Guidelines Council was established in 2003, and later replaced by the <a href="https://www.sentencingcouncil.org.uk/about-us/">Sentencing Council for England and Wales</a> in 2010. </p>
<p>Plaid Cymru – like <a href="https://www.howardleague.org/">many others </a> – likes the idea of restorative justice, but does not face up to the fact that its practicality is extremely limited. It requires an identifiable victim who is willing to cooperate in the process, an equally willing perpetrator, a skilled facilitator, time and support facilities. This is and will always be a marginal aspect of criminal justice, because of the narrow range of crimes to which it could be applied. </p>
<p>The party would get more support for its argument that short sentences have little effect on reoffending, even though they do provide the public with some relief when prolific offenders are locked up. The problem is that probation and all other non-custodial means of dealing with offenders need sanctions to ensure compliance, and that can only be the threat or fact of custody. </p>
<p>The manifesto joins <a href="http://www.publications.parliament.uk/pa/cm200001/cmhansrd/vo010207/halltext/10207h05.htm">many others</a> in saying that prison should be used more constructively. <a href="http://www.literacytrust.org.uk/assets/0000/0422/Literacy_changes_lives__prisons.pdf">Poor literacy</a> and lack of basic living skills are fairly constant companions of persistent petty offending, as are the <a href="https://www.gov.uk/government/publications/the-drug-data-warehouse-linking-data-on-drug-misusers-and-drug-misusing-offenders">abuse of alcohol and drugs</a>. </p>
<p>The closure of magistrates’ courts in Wales has undoubtedly caused inconvenience and hardship, and there is no reason why a number of premises could not be used for hearings, as Plaid Cyrmu suggest. Whether this would have an impact on costs is debatable, since it is the services of professionals, and of the whole back-room apparatus of courts, which are the costly items.</p>
<p><em>More to come on Plaid Cymru’s crime and justice manifesto: substance abuse and the penal system.</em></p><img src="https://counter.theconversation.com/content/39657/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Seán McConville is a member of the Magistrate's Association.</span></em></p>According to our expert, Plaid Cyrmu’s crime manifesto is window dressing with uncosted goods.Seán McConville, Professor of Law and Public Policy, Queen Mary University of LondonLicensed as Creative Commons – attribution, no derivatives.