ALTERNATIVE SYSTEMS OF CRIMINAL JUSTICE

There already exist other interesting examples of an alternative sys­tem to the process of criminal justice. I refer, first, to the powers of HM Revenue and Customs (HMRC) to administer monetary penal­ties, of up to three times the amount of back duty, on any taxpayer who defrauds HMRC.

The trouble about criminal justice today is that it is time­consuming; the outcome is always problematic, and the legitimised penal sanction of imprisonment is costly and cumbersome and, at most, does no more than inflict individualised, temporary incapaci­tation. As the former Secretary of State for Justice, Mr Kenneth Clarke, said, prison is a waste of public money. There will always be some criminal events which demand the full panoply and maj­esty of the criminal trial. If only for reasons of symbolism, there is a compelling need, in certain defined circumstances, for all the trap­pings of the criminal court to be in place - a judge endowed with the Olympian authority of the Crown, festooned with distinctive robes (and, foreseeable for years to come, the wig), sitting in a pub­lic building that evokes the might of the State.

¹⁴ Compare the far greater number of benefit fraud cases that are currently brought to the criminal courts. role and function of the English magistracy is due for a thorough review.) The criminal event which exposes unacceptable social conduct and legitimates control of the perpetrator by way of impo­sition of penal sanctions demands a much less solemn, more expe­ditious and simpler procedure than is exhibited by the adversarial process of criminal justice. It was Jeremy Bentham who aptly observed that substantive law, by which he meant the basic ingredi­ents of the criminal offence, is never self-enforcing; it is sustainable only by the adjectival law of sound procedures and evidence. The adjectival segment of criminal justice is fraught with difficulties, engendered by the justifiable need to preserve the safeguards against a wrongful conviction.

Apply the alternative approach to the occasion of an affray in the local village. There may well be a case for eliciting, for public view, the circumstances leading up to and surrounding the incident. The civil process of fact-finding, stripped of any sentencing function, would more than adequately provide the forum and pointer for appropriate social action. If the identified miscreants must, for rea­sons of public protection, be deprived of their liberty, as opposed to any non-custodial sanction, there might have to be further safe­guards built into the sentencing process to compensate for responsi­bility having been imposed by the lesser standard of proof than would ordinarily be a prerequisite to the penalty of imprisonment. The problem is that this process would merely tend to replicate the courts of criminal justice.

Recent developments surrounding criminal justice are indicative of public unease - a better word would be ‘dis-ease’ - about its fail­ure to cope with the problem of social disorder. The aim of injecting diversionary tactics into the criminal process is a recognition of a desire to escape the consequences, often unintended, of the pursuit of a criminal conviction. Probation itself was an expression of soci­ety’s aim to break the iron equation between crime and punishment. The development of non-custodial penalties and forms of interme­diate treatment has similarly reflected an attempt to escape the single-minded purpose of criminal justice, to punish the convicted offender. Mediation and conciliation are recent entrants onto the scene to effect avoidance of the treadmill of prosecution, trial, con­viction and penal disposal.

Court-based psychiatric assessment should indicate the removal of mentally disordered persons from criminal justice and the penal system into the mental health system. The apparent clamour of victims of crime for a larger say in the process of decision-making, particularly in influencing the sentencing process, is a clear decla­ration of some (unquantifiable) public dissatisfaction with criminal justice. But victim support groups have generally remained neutral on questions of sentencing offenders.

Such developments as I have indicated that are afoot at present are peripheral to the main thrust of the criminal court. Rather than providing sensible alternative options of social response to the criminal events, they actually sustain activity within criminal jus­tice.

It is time to review fundamentally the aims of criminal justice, a matter which the Runciman Commission on Criminal Justice left untouched in 1993, mainly for reasons of a restricted remit and a limited timescale for reporting to government. The Chief Constable of Kent in a seminar of the British Academy of Forensic Sciences in 1997 described the Commission’s report as ‘uneventful ... in rec­ommending nothing of fundamental significance which was not already inevitable [it] endorsed the status quo’; so matters remain largely untouched. What is needed is some theoretical underpin­ning to the system of social control, some alternative approach to criminality, with the corollary of a justice system tailored to meet particular forms of criminality. This is no wish for an epidemic out­break of the itch for change - what Chief Justice Hale described three centuries ago as ‘a certain restlessness and nauseousness of men in what they have, and a giddy humour after something that is new’.^[164] It is a plea for a concerted search for something better than today’s largely unreconstructed criminal process for which we pay dearly, with too little return for our money. Criminal justice pro- vides naught for our general comfort. At best it provides a patch­work solution to individual cases brought to court, and on its past record too many miscarriages of justice - or should it be ‘carriages of injustice’?

How then do we persuade today’s politicians of the need for a more creative and less tramlined outlook on the problems of social control and criminal justice? How do we inculcate in those respon­sible for policy the need to employ more judicious and, where necessary, judicial means to provide justice for both the victims (the individual and the community) of crime and the offenders? The first step is to restore the erstwhile consensus among professionals and legislators in criminal justice and penal affairs.

Criminal courts should focus exclusively on their task of ensuring a fair trial for the contestants in their courtrooms - adherence to the precepts of due process under the authoritative guidance of Strasbourg - and abandon any notion that they are directly engaged in society’s grappling with the problems of criminality. Where crim­inal justice is appropriately wheeled into place, the sole function of trial by judge and jury is quintessentially to ensure a fair trial. The task of crime control is for the civil authorities.

The new Lord Chief Justice, Lord Thomas of Cwmgiedd, has repeated the oft-quoted claim (or could it be a case of wish­fulfilment?) that sentences passed by the criminal courts were obliged to focus on the reduction of crime, including the demotic principle and the protection of the public’s safety.^[165] The adjudica­tion of a criminal offence and the consequential disposal of the offender was thus effected by the same tribunal as had given him ‘a fair trial’. It fulfilled two separate functions, and meant to serve a purpose of general deterrence. The penalty for the criminal offence operated as punishment, both reactively to the crime and prospec­tively to criminality. The criminal courts played their part in the governmental aim to control crime through the established doctrine of deterrence, as well as the symbolic majesty of the criminal and civil systems. It was a firm commitment to the penal policy of sen­tencing.

There is impeccable logic in combining both functions procedur­ally in the hands of the judiciary. But does that mean, further, that the identical court must perform both functions simultaneously? Punishment, whether inflicted for past crimes or for prospective delinquency, may properly be separately adjudicated upon; the detention, post-conviction, may properly be equated with a parole system, discharge and post-custodial care in the community.