Lee Bridges, Chair of the School of Law at Warwick University, comments on the government’s new Criminal Justice Bill.
A government’s authoritarianism is marked by the numbers of its citizens it imprisons. Under New Labour the prison population, already rising under the Tories, has soared to over 70,000, so high that even the prison governors – hardly a liberal lobby group – have called for the powers of magistrates to send people to prison to be curbed.
Yet, both in its rhetoric and in its numerous ‘modernising’ reforms of criminal justice, New Labour has done much to encourage the courts to send more and more people to prison. And it has been primarily in magistrates’ courts that the government has found an enthusiastic response to its populist, law and order measures. Between 1989 and 1999 the number of people sent by magistrates to prison each year has risen nearly three-fold, from 18,200 to 53,000. In the same period, the number of prison sentences handed out by the Crown Court has increased only marginally, from 42,600 to 44,600.
Powers to magistrates
Government ministers and officials frequently give voice to their distrust of judges, whom they see as soft on crime, as distinct from magistrates. Hence their drive to have more and more cases dealt with in magistrates’ courts. Having failed in attempts to restrict the right of defendants to elect jury trial in many cases, the government has come up with a new wheeze. It will give magistrates greater powers of punishment, raising the maximum prison sentence they can give from 6 to 12 or 18 months. This will enable magistrates to deal with many of the over 50,000 cases they send to the Crown Court each year, primarily because they consider that the defendants deserve longer punishment than magistrates can give under their current powers.
In a majority of these cases that result in conviction, the Crown Court actually gives either a non-custodial sentence or one of 6 months or less – that is, what magistrates could have handed down in the first place. The implication must be that, if magistrates are given power to send more of these defendants to prison and for longer, they will do so. This is bound to lead to a further surge in the prison population.
These defendants will at least have had the opportunity of a trial, albeit a restricted one before magistrates. Other measures in the new crime bill will result in far more people being sent to prison without having been convicted by any court. In particular, it is planned to create a presumption that anyone who is arrested for a further offence while already on bail from a court awaiting trial, should be denied further bail. It is estimated that 100,000 defendants a year may be affected by this measure.
Police and summary punishment
Another indicator of government authoritarianism is its willingness to abandon due process of law in favour of summary punishment. The bill contains provisions to allow the police to impose bail restrictions on anyone they arrest, even before they are charged and brought before a court.
This measure must be seen in the context of the recent rise in the use by the police – spurred on by the government’s street crime initiative – of controversial stop-and-search powers, and of even greater black over-representation among those subjected to such treatment. Stop-and-search has long been used in inner city and black communities as a form of general, street-level surveillance and summary punishment, with just one in ten stops resulting in an arrest. But now the police will be able to combine this with more frequent arrests and the power to impose formal restrictions on individuals’ liberty through bail conditions, possibly extending over several weeks or months.
In putting forward these measures, the government is in part admitting that its efforts over several years, to bring more of those involved in crime before the courts and to gain legitimate convictions, have failed. Hence the need to by-pass the formal court process and create summary forms of punishment.
Manipulation of court rules
At the same time, New Labour is about to engage in a further round of manipulation of court rules so as to rig the system to ensure more people are convicted. New Labour has done nothing to reverse the Tory-created restrictions on defendants’ right to silence. And it now plans further limitations which will force suspects into making statements – turning the police station into a virtual Star Chamber. Otherwise, their silence under police interrogation – or even a short delay in order to make a written statement following legal advice – will be taking as evidence of their guilt in court.
This will be combined with greater use of previous convictions by the prosecution. Research evidence has shown that while evidence of previous convictions can serve to prejudice juries, this is even more the case with magistrates.
State power over the individual
All of this is supposedly being done in order to ‘rebalance’ the system more in favour of victims of crime. In reality, it is the state – the police, prosecution and courts (especially magistrates) – whose powers over individuals are being greatly increased. And it is precisely those communities that most suffer from crime – in the inner cities and on disadvantaged estates, where victims and those targeted as so-called ‘persistent offenders’ live side-by-side and often in the same families – that will now face the brunt of the new authoritarianism.
These communities are crying out for effective – but also fair and just – policing and criminal justice. What they are going to get is increasingly arbitrary use of state power which will only serve to further alienate them from a supposedly democratic society.
Provisions of the Bill
- Police powers: new ‘street bail’ without taking suspect to station; detention without charge up to 36 hours
- Pre-trial: CPS takes over charging from police, defence to make greater disclosure
- Magistrates: sentencing powers increased from 6 to 12 or possibly 18 months
- Previous conduct: previous convictions to be disclosed to jury where considered relevant by judge
- Judge-only trials: judge-only trials in complex fraud and financial cases and where evidence exists of jury tampering or intimidation
- Double jeopardy: to allow retrials in very serious cases with compelling new evidence – to be retrospective and apply to around 30 offences
- Dangerous offenders: serious sexual or violent offenders assessed as dangerous to be subject to imprisonment for public protection or discretionary life sentence