The Role of the Commission

The growth of the English penal system has been one of the most striking, yet perplexing, public policy initiatives of the past decade.  Prisons, despite their manifest flaws, have become entrenched in contemporary English culture and expectations.  We have grown accustomed to conditions in which prison populations spiral upwards, and penal culture gets ever shriller.  As a result, a custodial sentence is now viewed as an appropriate social and political response to a range of social problems and behaviours even when they could be dealt with quite differently. 

The Howard League independent Commission on English Prisons Today will look at the driving forces influencing change and practice including legislation, politics and the media.  It will consider the principles, purpose and limits of a penal system and how it should sit alongside other social policy strategies.

Under the Presidency of Cherie Booth QC, the twenty Commissioners - including leading British law professors and senior figures in the criminal justice system - will prompt public debate using local and national media, consultation meetings with key players, seminars and public events including evidence sessions in public. Commissioners will make visits to various national and international institutions to explore new ideas and consider where effective and systemic change has been achieved. 

The Commission hopes to stage an intervention both in public policy and in public sentiment about prisons.  In doing so, the Commission is guided by a set of ideas that can be loosely characterized as Human Rights, Penal Moderation, Localism, and Restorative Justice.  Over the next twelve months, these issues shall be debated further by the Commissioners and the experts they consult.

  At the end of the process, we hope they will provide the seeds for new and innovative ways of tackling crime and punishment in England, which will be laid out in a full report to be published in 2009.

A Place for Restorative Justice?

The Commission’s goal is not simply to critique the current system of punishment but also to suggest viable alternatives.  Central to a practical penal moderation are two inter-related goals – a reduction in the numbers behind bars and the promotion of less harmful alternative responses to offending. 

At the end of March 2008 there were almost 82,000 people in prisons in England and Wales. Arguably, this represents a crisis of penal policy and sentencing, rather than of prisons per se. Overcrowding, and the consequential harms it visits on all prisoners, but particularly vulnerable ones, is primarily a product of penal policy and sentencing, rather than the workings of the prison estate.

As the 2001 Halliday report made clear, sentencing has become more severe. Judges and magistrates are both awarding more custody than they used to – the average length of a custodial sentence awarded in the crown court is about 50 per cent longer than it used to be 10 or 15 years ago. Magistrates in particular are sentencing a significantly higher proportion to custody.

If prison worked, at least utilitarians could feel comfortable about the high numbers of men and women serving increasingly long sentences in less than ideal conditions, even if retributivists were alarmed by disproportionate sentences. But, when prison fails either to rehabilitate or deter most offenders from committing further crimes, it is hard to see which of the justifications for the pain of imprisonment are satisfied by the current penal system, as incapacitation to protect the public is likely only to be necessary for a small proportion of those currently held. With two out of three people, and three-quarters of all young offenders, reoffending within two years of release from prison it should be clear that as an instrument of desistance our prisons are as ineffective as ever.

The sentencing goals of retribution and incapacitation can be satisfied by imprisoning far fewer people than we do today. In turn, the goals of a fair, humane and effective prison system are more likely to be achieved with fewer people in the system. In an overcrowded prison control is prioritized while rehabilitation, skills, reintegration and other goals aimed at challenging recidivism are marginalised.

Currently, there are a number of community-based alternatives already in existence throughout England.  Many of these warrant further investigation.  One area, in particular, that the Commission believes holds the most promise lies in the restorative justice.
 
It has established a small Restorative Justice Working Group to consider the potential of Restorative Justice. Chaired by Dr Carolyn Hoyle, Reader in Criminology at the University of Oxford and author of a number of reports and articles on restorative justice. Other members are Cherie Booth Q.C., Barrister and Crown Court Recorder; Kevin McGrath of the McGrath charitable trust; and Dame Helen Reeves, consultant on victim and witness issues and former Chief Executive of Victim Support.

The remit of the Restorative Justice Working Group

This working group will consider how restorative justice can work alongside other interventions for offenders and victims of crime in England and Wales with the aims of:

• reducing the prison population
• reducing recidivism rates
• reducing the fear of crime and improving the public’s confidence and trust in criminal justice
• assisting victims and the wider community in coping with the aftermath of criminal behaviour.

Firstly, it will consider why, despite all of the legislative activity and considerable academic scrutiny of restorative justice in the UK, there remains little restorative activity on the ground. Indeed, restorative justice in the UK is fast becoming the most over-evaluated and under-practiced area of criminal justice.

At present, there are a handful of restorative justice programs operating throughout Britain.  For the most part, they are administered by the police or Youth Offending Teams and are, typically, only available for low-end crime.

In the UK, since 1998, police cautions for young offenders have been replaced with ‘reprimands’ and ‘warnings’. The police are responsible for deciding whether a reprimand or warning should be given, and are supposed to seek the views of any victim before taking this decision.

Work with young offenders is carried out by youth offending teams. There is also scope for restorative justice and a consultative role for victims by the power given to the courts to impose reparation orders and action plan orders on young offenders.

Since 1999 there has been a new mandatory sentence of referral to a youth offender panel for most young offenders pleading guilty and appearing before a youth or magistrates’ court for the first time. Victims should be asked if they wish to attend the panel. This would contribute to the establishment of a reparative and rehabilitative programme for the offender and the ‘contract’ for its completion. Thus, the procedures followed at a panel meeting, and any activities specified in the resulting contract, should be informed by principles of restorative justice: taking responsibility for the consequences of offending behaviour, making reparation to the victim and achieving reintegration (or integration) into the community. However, there is little evidence of victim involvement in any of these youth justice interventions. Resources and organisational goals seem to militate against effective restorative justice.

In 2003 the government introduced the conditional caution, which attaches restorative or reparative conditions to adult cautions. In Restorative Justice: the Government’s Strategy (2003) the Government reiterated that building restorative justice into conditional cautioning was the key way to develop it in the adult criminal justice system. Hence conditional cautions are now the primary vehicle for diversionary restorative justice for adult offenders. However, preliminary research suggests that very few police services are carrying out restorative conditional cautions and that almost none involve victims.

The Commissions seeks to understand why these youth and adult justice processes rarely include victims and why they are not meeting their restorative goals. Further questions that the Commission needs to address on this area include:

• do we want the state to lose monopoly over decision-making? 
  
• How do we safeguard Human Rights in coming up with alternatives?
  
• Can Restorative Justice provide solutions to the penal crisis?
  
• Is restorative justice necessarily in tune with penal moderation or could it become part of net-widening?
  
• What are some examples of good practice?
  
• What can we learn from these examples?
  
• What are some examples of more problematic practice and what, too, can we learn from those?
  
• Should the principles of restorative justice be incorporated into the criminal justice system?
  
• Are there any populations for whom restorative justice may not be appropriate?

Dr Carolyn Hoyle
Carolyn.Hoyle@crim.ox.ac.uk
April 2008