Jonathan Bartley

Assessing Ken Clarke's approach to prison, justice and crime

By Jonathan Bartley
July 14, 2010

Justice Secretary Ken Clarke’s announcement of a ‘Rehabilitation Revolution’ along with the acceptance that prison is not working, will have come as a surprise to many. It is of course self-evident that the system is broken. Being able to admit as much however, is the luxury of a politician who has not been in office for over a decade.

There is no doubt that his new policy is being driven by the new Age of Austerity. But the acknowledgement that the burgeoning prison population – now 85,000 – has not reduced either the fear of crime or, even crime itself, is welcome. He has come as close as anyone in recent years to acknowledging that prison does not work.

His latest speech is also significant because of his pledge to “re-think from first principles” what the justice system should be all about.

Until now the way we think about criminal justice has been shaped first and foremost by the prison. Criminal justice is primarily retributive. It is about punishment, with a little bit of rehabilitation thrown in for good measure.

The victim in any crime is - before anything else - a witness in the Crown’s drive to secure a conviction. The offence is committed against the state. Guilt is established in an adversarial court of law. Incarceration is the ultimate sanction, and success comes when another villain is taken off the streets.

But there is another way of viewing justice, which sees crime not primarily as something committed against the state, but as a breakdown of relationship. The response it to try and put things right again – as much as is possible. Under such principles, a new way of thinking opens up with regard to reparations, a more central role for victims of crime and alternatives to prison.

This more restorative approach has been trialled in various contexts over the last decade. The main problem is that it has been an 'add-on' to the existing system, rather than something which has been allowed to shape it. It has however had significant success where it has been tried at all stages in the system from prevention before a crime is committed, to dealing with the consequences of crime.

Restorative Justice comes in many forms from victim-offender mediation to family group conferencing. For the victim, it provides an opportunity to explain the impact of the crime, an acknowledgement of the harm caused, a chance to ask questions, and peace of mind about the future. Sometimes even an apology, reparation or recompense is agreed.

For the offender, there can be the opportunity to explain what happened, the opportunity to try to put right any harm caused, some self-esteem and re-integration into the community. Punishment may of course also form a part.

The use of Restorative Justice (RJ) within UK police forces has been increasing in recent years. Eight forces are currently piloting a Youth Restorative Disposal. Ten forces are taking part in the Restorative Approaches in Neighbourhoods (RAiN) programme and at least another six forces have developed the application of RJ outside of these programmes. The use of RJ interventions has been enthusiastically embraced by officers in participating forces. They have described its flexible nature and impact as a return to ‘common-sense policing’.

The use of RJ and working with partners such as schools is also enabling the police to see that it can contribute toward a reduction in the frequency and severity of re-offending. In Norfolk they are reporting a re-offending rate of just 7.4 per cent. In Bristol the re-offending rate is 15.9 per cent, compared to a rate of 30.2 per cent for those receiving a reprimand.

And where restorative ideas have been placed at the heart of the system, there has been even greater success. In Northern Ireland for example Youth Conferences are fully integrated within the criminal justice process. These have brought together offender, victim (or victim representative), professionals and others to discuss the offence and its repercussions, and to agree on an action plan for the offender. The combined reoffending rate for youth conferencing was just 37.7 per cent - this compared to 52.1 per cent for community sentences and 70.7% for custodial sentences.

But before we get too excited, this is not what Clarke is proposing in his return to ‘first principles’. In his speech Clarke set out his three priorities as: punishing offenders, protecting the public and providing access to justice. His strategy is in effect more of the same old system, with a lot more emphasis on rehabilitation and community sentences, rather than any substantive move toward a restorative approach.

Which is a great shame. Because in the same speech he accepts that in civil law – specifically family cases – that what he himself calls “the traditional adversarial system” may not be best for the parties involved. This does beg the question why he continues to be so wedded to the retributive model for criminal law?

Clarke states unequivocally that he believes sentencing should be based on “principles of retribution, reflection of public anger and the effective prevention of further crime”.

So this is not a watershed moment. This is a small change of direction, but not a U-turn. The ‘Rehabilitation Revolution’ is preparing the way for cost cutting, but it is not a Justice Revolution. It is an attempt to patch up an old, and failing system. And so we are likely to see little change in the dissatisfaction for the victims of crime and the wider fear of crime. There may be a small drop in re-offending rates. We will however, see some large cuts in the prison population – and of course, overall investment in prisons and criminal justice as a whole.


This article was first written for Open Democracy

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