Crime and Justice International Magazine - Sam Houston State University

The architects of this modernization effort took as axiomatic Lord Irvine, the Lord Chancellor’s statement that “the Government was elected on a radical agenda to modernize this country. All institutions and services are liable to scrutiny, and those that are out of date, inefficient, or unaccountable to the people will not survive unchanged…. Change will be made whenever this will strengthen the social fabric, and promote a fairer, more decent, and more inclusive society” (Windelsham, 2001). As part to this development, instead of focusing on the effective administration of traditional services such as the police, courts, or prisons, the orientation changed to concentrating on measurable outcomes sought by the criminal justice system, e.g., crime reduction. As Lord Windelsham observes, for the Home Office (the branch of Britain’s government responsible for crime and crime control) three key objectives were identified and promoted. They were to: 1) reduce crime and fear of crime; 2) dispense justice fairly; and 3) promote confidence in the rule of law (Windelsham, 2001). It was further posited that these outcomes could not be delivered by the Home Office acting alone. Instead, they require that the central government, local governments, non governmental organizations, voluntary associations, and private enterprises work together in the form of partnerships.

Changes in the Methods of Formulating Criminal Justice Policy

In the course of modernizing criminal justice policy there emerges in the late 1990s and early 2000s several significant changes in the way criminal justice policy planning, policy budgeting and policy-making in general are organized and operationalized. Specifically, a tripartite structure is constituted for these purposes consisting of the Home Office, the Lord Chancellor’s Department, and the Law Officers’ Department, with ministers supported by a single team of officials drawn from all three Departments. Among the shared agreements here are the following: 1) while the demands of justice require each of these branches remain fully autonomous and independent, this is not incompatible with the joint responsibility needed for maximizing value for money spent on crime control; 2) the information base used to formulate and manage criminal justice policy needs significant improvement, (e.g., establishing agreed upon crime data definitions) if the shared process of building a safer community is to be achieved; and 3) step-change improvements could be achieved through joint enterprise (Windelsham, 2001).

By fiscal year 2000-2001, the work of the Home Office was reorganized around seven specified aims. Each aim, in turn, had its own manager who was responsible for its attainment. In addition, the traditional possessiveness of the Home Office had been replaced by greater openness, a key to improved and more effective cooperation with the Law Officers’ Department and the Lord Chancellor’s Department (Windelsham, 2001). Briefly stated, modernization of criminal justice policy making was taking on a business management paradigm reminiscent of Drucker’s now classic thesis in Management by Objectives.

Two overarching aims here included: 1) reducing crime and the fear of crime, and their social and economic costs and 2) dispensing justice fairly and efficiently and promoting confidence in the rule of law. These, in turn, are subsequently re-conceptualized into eight working objectives as follows: 1) to reduce the actual amount of crime and disorder; 2) to diminish the adverse effects of crime and disorder on everyone’s lives; 3) to reduce the economic costs of crime; 4) to ensure just process and effective outcomes; 5) to make certain cases move swiftly within the justice system; 6) to meet the special needs of victims, witnesses, and jurors within the system; 7) to guarantee the rights and fair treatment of all defendants; and 8) to promote confidence in the criminal justice system (Windlesham, 2001). Although the plan said little about financial resources or costs, it did suggest that the police would receive 59% of the total planned expenditure on criminal justice for England and Wales, that 16% would be allocated to prisons, 7.5% to legal aid, 5.5% to the courts, 4.5% to probation services, and 2.5% to the Crown Prosecution Service and Serious Fraud Office (Home Office, May 2000).

With crime reduction underscored as the Home Office’s top priority, targets were set for reducing crime by stated amounts, especially those crimes that most concerned the greatest number of people such as having their homes burglarized and thefts from their cars. To ensure successful management of these objectives the government provided for upwards of 2.5 billion dollars increased spending by the police for the years 2003-2004, with an extra one-half to three-fourths of a billion dollars for prisons and community corrections. Other policy developments included structural changes in the Probation Service and the Crown Prosecution Service so as to correspond them with geographical police areas and thereby promote future cooperation among these criminal justice agencies. In addition, a new system of youth justice was formulated and put into operation.

This paper examines and critically evaluates three important efforts to modernize Britain’s Criminal Justice Policy: 1) the introduction and prioritization of managerial principles in the criminal justice system; 2) the combining of civil and criminal remedies to prevent anti-social behavior; and 3) the creation and implementation of Child Safety Orders.

Managerialism and the Criminal Justice System

A crucial development in Britain over the past decade is the application of managerial principles to those institutions responsible for criminal justice. Indeed, it has been said that this premise of modernizing the criminal justice system through managerialism has been institutionalized and normalized in virtually an unrelenting manner (McLaughlin, Muncie, and Hughes, 2001). The central theme heard here, as in the world of business, is the efficient deployment and management of resources, albeit in running a criminal justice system. Indeed, supported especially by initiatives taken by the so-called New Right, the entire organization and culture of Britain’s criminal justice system has been reconstituted to parallel private sector principles and practices. Moreover, it has happened under the guise that such a managerial approach to doing justice will allow the justice system to transcend and supercede party politics. Indeed, as Hood (1991) contends, this introduction of managerial principles to the public sector in general is a megatrend in public administration, and it joins other such megatrends as less government, internationalization, privatization, and automation in government. Correspondingly, managerialism in the criminal justice system is seen as a response to perennial complaints that the criminal justice system, like most other public services, was spendthrift, disorganized, inefficient, and unaccountable. Its attack on these dysfunctions is mounted on three fronts: 1) set cash limits and demand efficiency through greater financial sensitivity and prudence in the system’s administration; 2) establish greater standardization of policies and practices within the system and a related curbing of professional autonomy so as to reduce degrees of managerial freedom and resulting incompatible variations in structures and procedures; and 3) set target goals and monitor performance to effect greater control and enhance accountability. (See: Raine and Willson, 1997). Inspiring these efforts is the belief that they will generate greater productivity, cost efficiency, and consumer-centered outcomes.

Let us look briefly at each of these outcomes and how they manifest themselves within Britain’s rapidly managerializing criminal justice system.

1. Productivity

The focal concern of productivity is a more efficient processing of cases. Being certain that there are no bottlenecks within the system and that cases move quickly through it takes precedence over concerns with confidence that the rule of law has prevailed and justice has been done. Examples of specific initiatives associated with the demand for productivity include: 1) resorting to more stipendiary (remunerated and legally trained) magistrates who have a reputation for expediting courtroom business as compared to lay (unremunerated and not necessarily legally trained) magistrates; 2) sentencing discounts for those who plead guilty; 3) greater use of mail-in guilty pleas for defendants accused of minor offenses; 4) abolishing lengthy committal hearings for cases being sent to trial at the Crown Court and replacing them with simpler transfer procedures; 5) allowing the police to fix certain penalties (e.g., for traffic violations) in lieu of requiring the courts to do it; and 6) giving the police the right to determine conditions of bail instead of demanding that such decisions be set by the courts.

2. Cost Efficiency

Throughout the 1980s and 1990s, policy initiatives in criminal justice emphasize the need to contain expenditures and reduce unit costs. Examples of specific changes introduced along these lines include fixed fees for representing offenders in court so as to stem rising costs of legal aid in criminal cases, a scheme of fixed fees for criminally sustained injuries, publication of league tables of performance statistics to highlight and expose inefficiency in criminal justice agencies, greater cost control through privatization of some prisons, the introduction of competitive bidding for such support services as prisoner transportation, and the greater use of volunteers in operating probation departments as well as victim/witness assistance services.

3. Consumerism

Public services in general and criminal justice services in particular are now redefining themselves as being in the business of “satisfying customers” rather than simply being a regulatory agency of government. Consequently, extensive effort is directed at improving the quality and comfort offered by the physical facilities of police departments, the courts, and even the prisons. Reducing waiting times, more employee sensitivity training on assisting members of the community, improved signage are all illustrations of this increased consumer-centered managerial approach to criminal justice. In addition, to improve the experiences of victims and witnesses in the justice system, efforts are underway in many places to provide information, advice, and emotional support for those having to attend hearings. Victims are also being given a greater role in the courts, including the right to address the court regarding their wishes about the nature and length of the sentence appropriate to their offender. (For a more thorough discussion of these and similar examples of the impact that the managerial orientation is having on criminal justice administration, see: Raine and Willson, 1997).

The Crime and Disorder Act of 1998

While modernization of the criminal justice system through managerialism has proven contentious (infra), even more subject to debate are recent efforts that widen the state’s reach over so-called anti-social behavior. Specifically at issue is the Crime and Disorder Act of 1998, which brings “sub-criminal” behavior within the jurisdiction of the criminal justice system.

The Crime and Disorder Act of 1998 seeks to reduce both “crime” and “disorder” through early intervention and prevention strategies. It owes its inception to the work of New Labor, and like managerialism in criminal justice policy, articulates Tony Blair’s 1993 promise “to be tough on crime and tough on the causes of crime. It is also congruent with his demand for responsibility based on the idea that everyone will be given a fair, legitimate opportunity to succeed. A logical corollary of this theme is the idea that every individual, every family, has the right to a quiet life. This includes “a right to go about their lawful business without harassment, interference, or criminal behavior by their neighbors” (Labor Party, 1995). Proponents of this law, lament that in reality there are thousands of people in Britain whose lives are made miserable by their next-door neighbors or those living just up the street or around the corner. The conduct of these un-neighborly neighbors may not actually be criminal, but what they do is nevertheless often intolerable or even outrageous. Moreover, in many instances while no single episode of their behavior is in itself horrific, they are often chronic offenders and it is in the persistent repetition of such anti-social behavior that their actions become harmful to the general well-being of others. This idea was concretized by way of a major media story about two brothers who had continually burglarized their neighbors’ homes in Coventry. Although there were witnesses, they were reluctant to contact the police or go to court. Finally, the Tenants and Resident’s Association received evidence implicating the brothers. However, for various evidentiary reasons pertaining to the criminal law, the police were unable to use it to bring about criminal prosecutions. In response, the Coventry Civil Council agreed to pursue civil remedies. They sought to enjoin the two brothers who were allegedly responsible for the burglaries from entering a defined area of the neighborhood. By ordering them off the area, officials said they hoped to restore the confidence of the vast majority of families who resided there and who lived under constant intimidation from these two brothers (see Rutherford, 2000).

This set into motion the expansion of crime prevention into a whole new realm. It conjoined civil remedies with criminal penalties. Correspondingly, the criminal law became a tool for the social engineering of crime prevention. The Labor Party effectively argued that the criminal justice system could not adequately respond to the situation involving the two brothers in Coventry because it focuses more on acute criminal acts and is much less effective where the offending behavior is chronic and where each separate incident may lack forensic value, i.e., where only in the aggregate does the impact of their criminality make it intolerable, the whole being much worse than the sum of its parts. However, the courts do not generally address such chronic cumulative effects of anti-social behavior that is typically so destructive of the quiet life of the community.

In essence, the Labor Party and its supporters maintained that there is no opportunity for bringing evidence of overall anti-social behavior other than that relating to the specific charge, which may be very minor for evidentiary reasons. Therefore, what was needed, they argued, was a new “composite charge” and “new remedies” in situations where there had been a series of linked incidents of patently wrongful anti-social behavior or harassment. These new remedies could include curfews, exclusion from a designated area, restraints from approaching certain individuals, prohibitions on uttering threats or making noise of specified kinds, and desisting from racist behavior. Violation of such an order, unlike contempt procedures in civil matters, would entail not a maximum penalty of two years imprisonment, but a full range of criminal penalties, including imprisonment for up to seven years (Rutherford, 2000).

These ideas were conceptualized as a novel “quasi-criminal” remedy. New Labor first brought them to Parliament when it sought the passage of the Housing Bill of 1995. The objective of the Housing Bill of 1995 (which became an act one year later) was to toughen measures for dealing with nuisances by persons living on social housing. It provided for such stretches in the criminal law as follows: 1) no longer would it be necessary to prove a nuisance was continuing; past conduct which caused a nuisance, or was likely to, would suffice; 2) third parties who were not themselves victims, including professional witnesses such as county officials or police officers could establish the existence of a nuisance; 3) the grounds for illegal and immoral use of a property were widened; 4) local powers were strengthened with respect to drug dealers and other categories of offenders; and 5) any breach of an injunction against this so-called anti-social behavior could result in the accused being arrested without a warrant.

The powers to use criminal law to control anti-social behavior contained in the Housing Act of 1995 were extended even further by the Protection from Harassment Act of 1997. Briefly stated, this act, which provides for a civil restraining order, embraces criminal remedies when it allows for the breach of any such restraining order to become an indictable offence with a maximum penalty of five years imprisonment. This amalgam of civil action and criminal penalties was justified on the grounds that the lesser test of a civil tort would allow more victims or potential victims to be protected. As for the concerns about civil liberties of the accused, Gary Streeter (1996), the Home Office Minister, tossed them aside by asserting that he was confident the courts will always act in a way that protects the civil liberties of those involved in a case.

The main features of the anti-social behavior orders were incorporated in the Crime and Disorder Act of 1998. These include the following innovative if highly questionable provisions:

1. The defendant in cases requesting an Order does not have to be present at the proceedings and the court may decide the case on evidence given by professional witnesses such as the police rather than hearing directly from actual victims;
2. Acting in an anti-social manner is defined as one which caused or was likely to cause harassment, alarm, or distress to one or more persons not of the same household as himself;
3. An Order, for a minimum of two years but with no maximum period, prohibits the individual from doing anything described in the Order;
4. Any breach of the Order without a reasonable excuse becomes an indictable offence, carrying the full range of criminal penalties;
5. The law pertains to all persons down to those ten years of age;
6. The test of proof will be the balance of probabilities as under civil law and not the more stringent test of beyond a reasonable doubt as in criminal law.

As draconian as some of these provisions may appear, the Crime and Disorder Act of 1998 also includes important and innovative provisions regarding children and crime, which may prove more criminogenic than curative. Driven by popular public fears that young people can be very dangerous to themselves as well as to the lives and well being of others, coupled with a perceived threat that young people today are “out of control,” the criminal law’s approach to young people has been amended in significant ways. That the public is fearful—and resentful—of young people who may violate the law is nothing new. What is new is the strident way in which politicians are exploiting this fear (See: Von Hirsch and Ashworth, 1998; Piper, 1999). Hallmark of this exploitation of public fears and sentiments is a white paper introduced by Jack Straw as Home Secretary entitled No More Excuses. In this document he asserts that a “culture of excuse” has developed in which the youth justice system is constantly excusing the behavior of offending young people by maintaining that they are merely the unfortunate victims of social circumstances beyond their control, or rationalizing that the child is misbehaving because the system has somehow failed him or her due to inadequate resources or bureaucratic inefficiency. Alternatively, he argues, young people above the age of criminal responsibility today are generally mature and competent enough to know what they are doing and to know when what they are doing is seriously wrong. Consequently, they should be forced to face the harm they have done and be held accountable. This kind of reasoning is exactly what the more pedestrian public unfamiliar with the criminological literature believes and wants to hear from its governmental policy-makers. It also speaks to the dangers of politicizing crime control policy.

One of the most contentious of these developments regarding young people, and one which is intimately tied to the theme of “no more excuses,” is that under the Crime and Disorder Act of 1998 the rebuttable presumption that children ages 10-13 are doli incapax, i.e., incapable of crime, is abolished. Historically, it was necessary for the prosecutor to demonstrate that a minor knew the difference between right and wrong (or more legally between what is right and what is not just naughty but seriously wrong) before they could be charged with an offense. This basic principle—and protection—of criminal law, i.e., scientor, is no longer necessary. (See: Bandalli, 1998, for a discussion of doli incapax and the complex issues it presents).

Secondly, in certain crucial ways the Crime and Disorder Act conflates neglected children, i.e., children who are deprived, with children who are in need of supervision, i.e., children who are depraved. Traditionally, the law in Britain has processed children in need of services or protection quite differently and separately from those who have offended the law. For example, the Family Court is more likely to handle cases involving neglected children, whereas children who violate the law will be processed by the Youth Court. The objective here, at least in part, is to dissociate deprived children from the stigma and punitive aspect of the law addressing those who have offended. However, as Piper (1999) explains, this separation is obfuscated now in many respects by the “Child Safety Order.” Concomitantly, the distinction between civil and criminal law is being muddied, with criminal penalties being imposed on children and young people, while criminal law protections are by-passed under the guise of civil remedy and using less rigorous civil law procedures.

More specifically, under provisions of the Child Safety Order children under ten years of age who commit an act which would be an offense had they been ten or over can be placed under the supervision of a responsible person such as a social worker or member of some local youth authority. Moreover, they may be required to comply with certain restrictions the court considers desirable and in the interests of protecting and supporting that child, and preventing repetition of the kind of behavior that brought the child to the attention of the court. Also subject to such provisions are children under ten years of age who are deemed likely to commit an act some time in the future which, were they age ten or more, would be defined as an offense. In addition, a Child Safety Order may be issued for children who contravene a ban imposed by a curfew notice as well as those who have acted in a manner that caused or was likely to cause harassment, alarm, or distress to one or more persons not of the same household as himself or herself. It is no surprise that this sounds exactly like an anti-social order for children under ten (Piper, 1999).

Policy Changes Evaluated

Have these re-constitutions and re-conceptualizations of criminal justice policy along managerial lines proven effective? Equally important, if not more so, have they proven worthy of the rubric “justice”? Similarly, is the Crime and Disorder Act of 1998 good criminal justice policy? Has the state overreached into the life of the family placing all children at grave danger of becoming wards of the state for even minor acts of mischief while concomitantly creating a repressive, authoritarian system of criminal justice? In addressing these questions and assessing the potential legacy of these major criminal justice policy developments, we will examine the move to managerialism, the Crime and Disorder Act of 1998, and the related Child’s Safety Order separately.

Evaluating Managerialism in Contemporary Criminal Justice Policy

Those who rally around the flag of managerialism as the ideal approach for structuring and operating a criminal justice system boast of its having the following positive consequences: 1) it addresses the perpetual and expanding problems of delay and bottleneck in the criminal justice system; 2) it successfully challenges the culture of fiscal carelessness, waste, and lack of financial accountability so prevalent in the criminal justice system; 3) it helps humanize the criminal justice system, making it more sensitive to and kinder towards those innocent, civic-minded, and sometimes brutally victimized people who out of duty, or through no fault of their own, are caught up in its net.

If for the moment it is assumed that managerialism in criminal justice has proven effective, it comes with a hefty price tag. Critics point out that the hegemony of managerialism means that more traditional themes of criminal justice are sidelined, if not totally abandoned. What, for example, becomes of human rights? Where are the due process protections? Who is minding the store when it comes to leadership in reducing crime and delinquency? Critics lament that all these crucial areas are being seriously compromised. In addition, cash limitations on agencies have forced them to reduce the quality of service. Emphasis on parsimony and cost efficiency has even led to grave miscarriages of justice (Runciman, 1993). Furthermore, the magnified focus on consumerism may have eclipsed the authority of the courts while unwittingly putting consumer needs and interests above those of the community, and prioritizing the provision of service above administrating law and order (Raine and Willson, 1995).

Evaluating the Crime and Disorder Act of 1998 in Contemporary Criminal Justice Policy

The Crime and Disorder Act of 1998 was warmly and favorably received by supporters from Conservatives and New Labor alike. Detractors, on the other hand, though few in number and without a receptive audience, neither in Parliament nor on the streets, were nevertheless trenchant, although not influential, in their expressed concerns and criticisms. Among the more cogent of these is that the Crime and Disorder Act of 1998:

1. constitutes nothing less than an “Undesirable Persons Act” which is untenable in a free society (Ashworth, 1998);
2. threatens to criminalize individual behavior by stealth and cunning, sidestepping the rigors and traditional elements that distinguish criminal acts and clearly separate them from acts which are otherwise immoral, sinful, reprehensible, eccentric, or anti-social;
3. creates a new breed of outcasts and outlaws, i.e., “the anti-social” (Ashworth, 1998);
4. uses more loose civil procedures and protections to by-pass more stringent criminal procedures and protections so as to access criminal penalties (Rutherford, 2000).
5. portends to criminalize the behavior of minorities, especially immigrants, who often face a hostile environment replete with officials, including police officers, who tend to see them as anti-social or causing harassment (Rodgers, 1997);
6. unlike criminal laws which define the illegal with great specificity, anti-social behavior is an extremely vague, undifferentiated term, one subject to capricious interpretation. (Interestingly, none of the amendments offered to tighten the definition of anti-social behavior even came to a vote. Instead, New Labor effectively argued that “those who suffer anti-social behavior don’t need to have it defined; they know what it is and experience it daily” (Rutherford, 2000);
7. allows for criminal penalties without criminal law protections and due process;
8. is ultimately a charter to punish the eccentric and the nonconformist.

Arguably, the most devastating challenge is that the Crime and Disorder Act of 1998 could lead to a repressive society where generations of evolving and precious civil liberties are suddenly but effectively neutralized.

Even efforts to require that the harm done be intentional or that the damages caused be serious curried no serious support. The typical response, as naive as it may have been, was that such cautions are unnecessary given the civil nature of the proceedings. As one advocate reasoned: “It is only an order which demands a person behave reasonably, therefore why must intent be a prerequisite of the actor.” Even the suggestion that more than one victim must be harmed was rejected. Despite these difficulties, the quest to build a safer, more responsible society outstripped any caution. For Jack Straw, Home Secretary, passage of the Crime and Disorder Act was declared a triumph of community politics over detached metropolitan elites (Rutherford, 2000).

Other aspects of modernizing Britain’s criminal justice system which have been called into question but which nevertheless reflect a paradigm shift in how criminal justice is conceptualized, organized, and operationalized by progressives include: 1) an enhanced role of the average the citizen; 2) a revamping of the nature, meaning and function of crime prevention; and 3) the inclination to place due process procedures into parentheses and otherwise sidestep its constraints.

Citizens are now given the responsibility of maintaining order in their communities. The police, in turn, are no longer seen as being capable of preventing and controlling crime on their own. Rather they are there only to assist and support the local citizenry, often working through citizen’s councils and other voluntary associations to achieve this awesome task. This is particularly clear when it comes to defining and containing anti-social behavior. The problem here is the very real possibility of an overly zealous public on the hunt for “justice” from a perceived offender. The cool wind of objectivity associated with the professionalization of criminal justice could well be replaced by an impassioned public bent on revenge or playing out its own prejudices towards the actor rather than responding to his or her actions as demanded by traditional criminal law and procedure. Aggravating this new reality, the accused is no longer enjoying the protections of due process afforded by the criminal law and criminal procedures, either because managerial considerations are in ascent in the public sector of criminal justice, or because the public is empowered to short circuit them through anti-social behavior legislation.

Secondly, by instituting anti-social legislation as it has done, New Labor has succeeded in neutralizing restraints imposed on the awesome powers of the state vis a vis the individual. No longer must an act be specifically defined as criminal in advance before the state can look to impose loss of freedom and other serious punishments on the individual. Nor does he or she have to be present at trial with the opportunity to confront witnesses and bring evidence on his or her own behalf for the penalties to go into effect. Third parties now have standing to bring civil complaints in anticipation of possible subsequent criminal sanctions. Furthermore, law enforcement officers can now not only make arrests, but they can also levy criminal penalties, by-passing the traditional right of the accused to a day in court before loss of any freedom. As Radzinowitz (1991) warns, clearly an authoritarian model in which the accused is no longer protected as innocent before being proved guilty of a specific crime is displacing a socio-liberal model of past generations. Correlatively, Jareborg (1995) fears that criminal law is no longer concerned with protecting the individual from the intrusive, awesome powers of the state by establishing normative limits on when and how it can intrude on the behavior of the individual. Instead, it is being subordinated to the needs for crime prevention.

Thirdly, the meaning of crime prevention has been redefined. When Tony Blair spoke about being tough on the causes of crime, it was generally understood to mean strengthening social welfare programs designed to remedy inadequate schooling, poverty, dysfunctional families, lack of commitment to conformity and the like. Instead, as Rutherford (2000) argues, crime prevention has been reinvented. No longer is it concerned with general crime prevention throughout the population. Now the emphasis is on intervening against likely potential offenders, i.e., “pre-criminals,” and prevention measures aimed at convicted offenders. The collateral dysfunction of this misdirection of preventative efforts is that it will likely divert efforts targeting the underlying macro social and economic problems that criminologists understand are the real causes of crime.

Evaluating the Plight of Children Under the Crime and Disorder Act

Children subject to a Safety Order under the Crime and Disorder Act are facing several baleful measures. First, they will not have the benefit of a guardian ad litem, nor will they be entitled to legal representation since they are not actually a party, nor are these safety orders under the aegis of criminal proceedings. Second, child safety orders could brand a child a criminal, effectively excluding him or her from society. Third, there is no safeguard to ensure that those accused of anti-social behavior have actually caused any serious harm. Consequently, even minor rubs with the community can lead to the use of an Order and related state intrusion in the life of the child and his or her family. Lastly, and perhaps most damaging for the child, should he or she fail to comply with a Safety Order (e.g., breaking a curfew requirement to be home by nine o’clock at night), it could ultimately result in the child’s removal from his or her home and placement with either the Local Authority or HM Prison Service (Piper, 1999). Moreover, this can happen without the due process protections of the criminal law such as the right to have legal representation, confront witnesses, bring evidence on your own behalf, and the like. As Cavadino (1996) so succinctly observes: “…it cannot be proper to adopt the course of imposing severe criminal penalties without observing normal safeguards in proving the behavior which is considered to deserve such penalties.”

Conclusion

The 1960s and 1970s brought to Britain unprecedented reforms aimed at protecting the rights of the accused and limiting the power of the state in its pursuit of criminals. The late 1990s and early 2000s clearly evidence a paradigm shift towards increasing the power of the state in its quest to control crime and reducing individual freedoms and protections. The movement towards managerialism in criminal justice policy, the implementation of the Crime and Disorder Act of 1998, the elimination of certain protections traditionally given to children in the justice system along with related changes in British crime control culture testify to how far this shift has come. Future crime control policies urge even wider rollbacks of individual rights and protections. In addition, in the rush to legislate crime control policies congruent with popular notions of justice, certain proffered new legal remedies may well aggravate the very justice administration problems they seek to prevent.

In July 2002, a white paper entitled “Justice for All,” was presented to Britain’s parliament (Home Office, 2002). In it additional criminal justice reforms are proposed calculated to increase the proportion of cases that result in convictions. Among these are the following: 1) eliminating the double jeopardy protection for those accused of murder, manslaughter, rape, and armed robbery, especially where DNA and related forensic scientific advancements offer important new evidence; 2) allowing the admission of previous convictions or acquittals at trial, especially in cases of domestic violence; 3) eliminating the use of juries in serious and complex fraud cases and those involving certain forms of organized crime; 4) allowing the police to impose restrictions such as curfews and so-called doorstepping controls on suspects who are not arrested; 5) fining lawyers who cause unnecessary delays or waste time due to their errors or omissions; and 6) offering defendants sentencing discounts for accepting a plea bargain so as to stop delay tactics employed in the hope that hostile witnesses would get tired and decide not to testify. Although all such reforms are justified in terms of legitimate criminal justice objectives, each can have important iatrogenic dysfunctions. For example, extending the range of crimes for which double jeopardy will not apply as a defense could lead to a greater number of convictions. However, it could also bring about a lower proportion of the guilty being convicted per trial by 1) fostering a greater willingness on the part of prosecutors to bring inadequately prepared cases to court, 2) facilitating so-called “jury pardons,” and 3) catering to jury preference for acquitting defendants. Furthermore, it portends to increase pressures on the same limited court resources it seeks to conserve by generating “re-trials.” Moreover, from a human rights perspective, it will cause an extended range of innocent individuals being harassed by the state, their normal lives perpetually and permanently disrupted while concomitantly allowing guilty offenders to remain at large. Similarly, allowing previous convictions or acquittals to be introduced in evidence can obviously prejudice a jury, while fining lawyers for unnecessary delays can cause them to suborn the defendant’s interests to temporal expediency resulting in wrongful convictions and aiding the guilty to go undetected, unpunished and undeterred.

Professionals and business people alike must often address the question: “Should I give my clients what they need or what they want?” Governments and their delegated authorities typically have to address a similar question with respect to their constituencies. “Do we give the public what it needs or what it wants? Alternatively stated, do we lead or do we follow popular public opinion?” As Britain enters the 21st Century, its government has clearly politicized the problem of criminal justice policy and with some self-righteousness shunned the high road. As Von Hirsh and Ashworth (1995) observe, both political parties have exploited popular resentment about crime and politicized the issue of law and order. Furthermore, New Labor in wooing the public has used a kind of homey imagery, “everybody knows” logic, and anti-intellectual return to basics (“A Quiet Place”, “No More Excuses”) which is filled with un-reflected platitudes, gross generalizations, and lacking empirical validation that can lead to very dangerous outcomes for both the individual and the state.

The crime problem and fear of crime are very real concerns. Unquestionably the government is under severe strain to make and implement an effective criminal justice policy that brings about peace and justice for all. It must also deal with the cynical disillusionment that has devastated and made all but moribund the social welfare oriented program approach of the liberal 1960s and 1970s. In casting about for a raft of hope onto which it can sail to a safer more tranquil time, New Labor has come to look to the world of business to help chart its course in crime control. Managerialism has become its sextant giving it direction and the criminal law has been transformed from a code of conduct into a tool for crime prevention.

In addition, the British government has chartered a criminal justice policy in the Crime and Disorder Act of 1998 that could devastate individual rights and precipitate a repressive Orwellian society that prevents the kind of challenges of the status quo so necessary for social progress.

There can be little doubt that the long-term effects of Britain’s public program of modernization through managerialism and such developments as the Crime and Disorder Act of 1998 and the related Child Safety Order will occupy the minds of academics and policy makers alike for some time to come. Arrest statistics reveal that between 1981 and 1997 there has been a large increase in the number of arrests; however, the number of people prosecuted has declined. Hillyard and Gordon (1999) suggest this is due to the system of justice becoming more informal. Clearly, it is too early to evaluate the effect of these developments in the short term, much less over time. Regardless, in this quest to modernize criminal justice policy there is reason to fear for such principles as human rights, civil liberties, individual dignity, and due process protections of freedom lest they be counteracted and, along with that, offset much of the progress of civilization.

Gary Feinberg is Professor of Sociology and Chair of the Department of Social Sciences and Counseling at St. Thomas University, Miami, Florida.

Notes

Ashworth, Andrew, John Gardner, R. Morgan, A. Von Hirsch (1998). “Neighbouring on the Oppressive: The Government’s Anti-Social Behaviour Order Proposals.” Criminal Justice. 16: 7-14.

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