21 Community Service: Penological Progress
FROM THE BIRTH of community service orders, 40 years ago, to today’s rebranding of community work as a punishment for crime, the changes witnessed in the penal system are examples of the maxim that penal reform is not necessarily penal progress.
Together with the imminent transfer of the probation service (which has assiduously managed the system of rendering a difference in offenders’ lives), the innovation in penal policy is for prisoners to be supervised in the private sector performing unpaid work. The intention, apart from cost-cutting, is to impose conditions of employment on prisoners. Thus a private company can make a profit on the back of the State’s miscreants repaying their indebtedness, a feature these days of the privatisation of prisons. It is a far cry from the principles set up by the sub-committee (the Wootton Committee) of the Home Secretary’s Advisory Council on the Penal System (1966-78). I was a member of the Wootton Committee, and record now how far we have departed from a previously distinct shift in restricting the use of imprisonment and deploying non-custodial penalties and disqualifications. Society is now abandoning, consciously or not, the trend towards reducing the prison population. That is until the Criminal Justice Act 1991, with its ambition to throw off the recent past, alas discarded thereafter.The Community Service Order, officially sanctioned in the Criminal Justice Act 1972 which rapidly enacted the proposal, was not even as revolutionary as Wootton recommended. Apart from the general proposition that, like probation (itself an innovation at the beginning of the twentieth century), the new order was to be a condition of that sentence which was designed to replace short prison sentences. Moreover, in its aspect of social justice, the Committee hoped that the service would be extended so that offenders would work alongside non-offenders.
The time prescribed for this service was limited, doubled by the legislation. The parliamentary approach to the concept was to provide a sanction for non- imprisonable offences by supplying an element that encompassed both ends of the penal spectrum: the liberal approach and the fiercer attitude by conservatives to crime. Instead it was the Wootton Committee itself that concluded its proposals were satisfactory from all shades of penal policy. In patting itself on the back, the Committee felt constrained to come up with an idea that prompted public consensus. It was, however, dismayed not to have completely won over officialdom, but acknowledged that for its public acceptance there was a need to accommodate the inherent concept of punishment for crime.Barbara Wootton was herself an ardent reformer and no admirer of the English criminal law - she thought that many of our archaic systems of criminal justice and, in particular, the sentencing system, ‘seemed incongruous in a scientific age’. Hence the idea of an offender paying the price for less serious crime with work for the community had an instant attraction. But she was not alone, although she supplied the inspiration and leadership to the members. An early example of a sentencing judge in Darmstadt, Germany in 1950 was the impetus to rendering a pragmatist’s work to officialdom. Judge Karl Holzschul used his judicial power in ordering an offender, convicted of dangerous driving which had severely wounded a pedestrian, to work as an assistant to nursing staff in the accident and emergency department of the general hospital in Darmstadt for a certain period of time. The story from Germany was instantly seized upon as a sensible way of disposing of the case, and converting the individual judge’s idea into a full penal sanction. If the members of the Committee readily adopted the European example, it did not attain the support initially of the officials. After a decorous dismissal of the idea as woolly and liberal (since it might not work in practice), the Home Office adopted the idea.
Legislation of the 1970 report in the Criminal Justice Act 1972 was a welcome response. It reflected a groundswell of public support that expected, correctly, a dose of penal reform. It even was injected into our penal systems; thousands of offenders benefited, and still do, even under a harsher regime.Philosophically, the original idea was that although the Committee regarded a community service order as a sentence of the trial court, it had the virtue of being a constructive penalty whereby the offender accepted the burden of some responsibility towards others. Even the judiciary took to the idea, although traditionally the view was that the offender should not be involved in the sentence imposed. When the Lord Chief Justice, Lord Parker, came to give evidence, he expressed dissent from the idea of a deferred sentence (which was also added in the 1972 legislation). His approach was that the offender ought not to be involved in his own penal treatment, such as providing some task before returning to court for the appropriate penalty. Lord Parker was pointedly told that penal policy indicated a change in the behaviour of the convicted.
The community service order dominated the report, which was given the remit of reviewing ‘non-custodial and semi-custodial penalties and disabilities’. The Committee’s report later that year (1970) was extensive, but not nearly exhaustive of the disposal of offenders without resort to imprisonment. The movement for avoiding prison sentences for non-violent offences is some way off. So is the tilt of the penal system in favour of treatment and control in the community. Today the aim is to inject an element of punitiveness in addition to a community service order - a sign of the times in penal affairs.