Making sense of criminal justice failure
By Richard Garside, August 2006
These are curious times for criminal justice. The official rate of crime, as measured by the British Crime Survey, stood at nearly 20 million incidents in 1995. Ten years on the comparable figure is just under 11 million, a near 50 per cent decline in a decade.
Meanwhile, those agencies that make up the so-called `criminal justice system' face regular attack and criticism, much of it from government ministers. In January this year the Prime Minister argued that `traditional' criminal justice processes were `utterly useless' for getting `on top of twenty-first century crime'. A few months later he told the Observer newspaper that these `traditional' criminal justice processes had `failed. They are leaving the innocent unprotected and the guilty unpunished.'
One of John Reid's first public acts as incoming Home Secretary was to tell the House of Commons Home Affairs Committee that the Home Office was `dysfunctional'. In July this year he published yet another action plan aimed at improving the performance of the criminal justice system.
What is going on? Why, during a period of rapidly falling official crime levels is criminal justice apparently mired in almost permanent crisis? Are ministers right about criminal justice failure? If so, what are the implications for a progressive political programme?
Understanding criminal justice failure
The government's analysis of criminal justice failure is at heart very simple. It was first set out in the 2001 White Paper Criminal Justice: The Way Ahead. The basic problem, according to this document, is that crime rates took a sharp upward turn from the early 1980s, while the criminal justice system treaded water. During these years, the criminal justice system had `not kept pace with the growth in crime nor with new types of crime and criminality'. This lack of performance itself contributed to the development of a vicious circle. There were `many reasons' for the growth in crime, but `one important underlying factor' was the fact that the criminal justice system had `not been effective enough in dealing with crime or offenders'.
The government claims on criminal justice performance are based on a comparison between the number of alleged crimes recorded by the police and the number of successful convictions. In 1980, the police recorded six alleged crimes for every one successful conviction. Twenty years on they recorded around 11 alleged offences for every successful conviction. Over a 20-year period the conviction rate apparently declined quite significantly.
But police-recorded offence data is precisely that: details of alleged crime incidents catalogued by the police. And it is only that. It is an elementary error, though one regularly made, to assume that such data offers a satisfactory insight into the scale and scope of crime in the real world. Let us see what happens if we compare convictions against crime measured by the British Crime Survey, the government's preferred means of quantifying crime levels.
In 1981, the first year for which British Crime Survey data is available, around one individual was successfully convicted for every 25 offences estimated by the British Crime Survey. By 2000 around one individual was convicted for every 30 offences, as was the case in 2003/04. Criminal justice was about as ineffective at successfully resolving suspected offences in 1981 as it was nearly 20 years later, and as it is now.
Criminal justice failure, in other words, is a lot worse than the government's own pessimistic analysis suggests once comparisons with the British Crime Survey are made. But then the British Crime Survey itself only measures a fraction of all offences. It ignores white collar crime, for instances, and underestimates offences such as domestic violence. It also does not cover a number of serious crimes of violence such as sexual assaults; child abuse and homicide. All of these offences involve significant harm or trauma to those who experience them. How comprehensively does the criminal justice system deal with them?
Rape and sexual assault of females
A detailed questionnaire appended to the 2001 British Crime Survey attempted to estimated sexual assaults against women. The researchers estimated that there were some 720,000 sexual assaults on over 400,000 female victims in the 12 months leading up to the survey. In that same period there were just under 3,000 successful convictions for rape and sexual assault on women. In other words, the vast majority of suspected sexual assaults did not result in a successful prosecution.
Reliable estimates of child abuse are very difficult to come by, for obvious reasons. The NSPCC published a study in 2000 that found that 16 percent of females and seven percent of males said that they had been subjected to some form of child sexual abuse involving contact. When non-contact sexual abuse such as exposure is included, the proportions rose to 21 and 11 per cent respectively. On this basis, literally millions of children, and adults when they were children, will have been sexually abused. By comparison, the annual number of successful convictions for child abuse can be counted in the hundreds.
Crime, harm and criminal justice
There are far more unacceptable violations, as well as gross and serious violence, directed against women and children than official, criminal justice-based statistics would lead us to believe. Whatever insights official crime statistics offer they comprehensively fail to quantify the many day-to-day depredations perpetrated by men against women and by adults against children. In the face of the magnitude of such crime and related harm the scale of criminal justice failure, and the hubris involved in the government's commitment to using criminal justice solutions to tackled deeply ingrained social problems, is all too apparent.
Yet the credibility of the criminal justice system as a mechanism for dealing with crime and protecting the public rests in part on its ability to deal successfully with the most serious and odious of crimes. If significant amounts of serious suspected offending is left unresolved by the criminal justice process, this calls into question the claims made for it as a means for resolving crime and protecting the public.
We need not collapse into pessimism at this point, unless we are to assume that the prevalence of sexual assaults and child abuse is mostly, or perhaps just significantly, down to the failure of criminal justice to bring offenders to justice. Rather than looking for answers in a narrow configuration of government agencies collectively known as `the criminal justice system', we might instead look for answers in a broader constellation of social, economic and political interventions. For as becomes clear in the case of homicide, changes in the rate at which people are unlawfully killed has little to do with the criminal justice process.
When it comes to homicide, the criminal justice system looks pretty effective, at least compared with most other offences. The majority of killings formally recognised as murder, manslaughter or infanticide apparently result in an individual being convicted. This is a desirable state of affairs. Few would want to live in a society that treated with indifference the taking of one person's life by another. But is it because of the criminal justice system that more people are not victims of homicide? Put differently, to what extent do the workings of the criminal justice system influence the number of murders, manslaughters and infanticides in any one year?
Let us start by examining the conviction rate for homicide. In the year ended 31 March 2000 the police in England and Wales recorded 766 suspected homicides. In 2000, 501 individuals were convicted of homicide, giving a conviction rate of 65 per cent. In 1980, 564 suspected homicides were recorded by the police and 370 individuals were convicted, giving a conviction rate of 66 per cent. The conviction rate does not appear to have changed over a twenty year period, yet the homicide rate has risen sharply. This suggests that the reason for the rise in homicide rates during this period is more complex than that of supposed criminal justice failure.
A more compelling explanation of the rise in homicide rates was offered by Professor Danny Dorling of the University of Sheffield, in a study of homicide in Britain between January 1981 and December 2000 published last year by the Crime and Society Foundation.
Approximately 13,140 people were victims of homicide during that period. The rate of homicide increased as the 1980s rolled into the 1990s, but the increase was not distributed evenly. The risk of being a homicide victim increased for men but decreased for women. But the strongest determinant of an individual's likelihood of being unlawfully killed was poverty. The homicide risk decreased for the rich but increased dramatically for the poor. Indeed, the rise in homicide victimisation in Britain was concentrated almost exclusively in men of working age living in the poorest parts of the country, who grew up in the era of mass unemployment that was the 1980s.
Rather than being an artefact of a failing criminal justice system, the rising homicide rates during the 1980s and 1990s were the result of profound and lasting social, economic and political changes. There is `no natural level of murder', Dorling argues in his study. He continues:
For murder rates to rise in particular places, and for a particular group of people living there, life in general has to be made more difficult to live, people have to be made to feel more worthless. Then there are more fights, more brawls, more scuffles, more bottles and more knives and more young men die.
So it was that rates of poverty and income inequality rose significantly in the 1980s and 1990s. This overwhelming social fact, rather than any marginal criminal justice impact, exerted by far the strongest influence on the homicide rates. Tt would be absurd to suggest that the Conservatives in the 1980s and 1990s pursued particular social and economic policies with the intention of increasing the number of people who were victims of homicide. It is reasonable to conclude that increased homicide rates were an unintended, though arguably predictable, consequence of those policies.
Taking crime and harm seriously
What, then, is the policy challenge for any political agenda that would consider itself, or wish to be considered, progressive? Three areas in particular deserve greater attention.
First, a serious commitment to quantifying, and talking about, the real levels of crime and related harms is desperately needed. This is difficult territory. Labour has based part of its electoral appeal on the claim that crime has fallen during its time in office. But the reality is that official measures of crime fail to quantify huge amounts of serious, traumatic and deeply disturbing victimisations. No political programme that considers itself progressive should feel comfortable about ignoring, in its official discourse, such abuses. A policy agenda that evades or ignores the scale of various crimes and harms - as do the current Labour, Conservative and Liberal Democrat programmes - is unlikely to do much to address these problems.
The overriding imperative must therefore be to base the debate about crime reduction and harm minimisation on an honest assessment of the scale and nature of crime, not on misleading, albeit reassuring, myths.
Second, we need to make a distinction between criminal justice reform and crime reduction. It goes without saying that in the course of their various operations the various criminal justice agencies do deal with some crime and some criminals. Some serious crimes are resolved. Some individuals who pose a threat to others are incapacitated or otherwise controlled. But while individuals come to the attention of the criminal justice agencies ostensibly because they are suspected of having committed a crime, the broader function of criminal justice, particularly the police, as a means of bolstering a particular set of institutional and social relationships should not be ignored.
Criminal justice, as Nicola Lacey has pointed out, is `a related but not entirely coordinated set of practices geared to the construction and maintenance of social order'. This point was made vividly by former Home Secretary Jack Straw in a House of Commons exchange in May of this year. The purpose of the Home Office, Mr Straw observed, was to deal with `dysfunctional individuals - criminals, asylum seekers, people who do not wish to be subject to social control'.
This helps to explain why those individuals who end up in the criminal justice system as suspects and convicted offenders are so disproportionately drawn from the poor, marginalised and excluded populations. For if criminal justice tends to regulate rather than resolve social problems, it is likely to entrench rather than address the wider inequalities and imbalances that give rise to such problems.
Yet precisely because criminal justice is a regulatory response to a set of problems, the causes of which it is not constituted to resolve, reforming criminal justice processes will have little impact on underlying rates of crime and harm. This is not an argument against reforming the criminal justice system. It is an argument for not confusing this task with the more fundamental one of crime reduction and harm minimisation.
Third, challenging the oppressions of poverty, inequality and sexism need to be placed centre stage. Tackling the high levels of poverty and income inequality has its own inherent worth. One should not embark on such a task merely because it might lead to falls in crime and related harms. But a serious attempt to tackle poverty and inequality is likely to have benefits far beyond simply making the poor better off. Poverty and inequality levels blight the lives of those people living in the poorest areas of Britain in ways far more significant than the mere issue of financial hardship.
For instance, Richard Mitchell and his colleagues examined overall mortality rates across Britain for a study funded by the Joseph Rowntree Foundation. They estimated that 7,500 people aged under 65 would not die prematurely each year if income inequality levels were returned to the levels they were at in the early 1980s. In the Prime Minister's own constituency of Sedgefield, this would equate to around 13 premature poverty-related deaths being prevented each year, a much higher figure than the couple of suspected homicides recorded annually by Mr Blair's local police force of Durham.
The impact of such policies on a wider range of violent confrontations should also not be discounted. Behind every homicide will be thousands of violent assaults that could easily have ended in death, as well as millions of serious assaults. Homicide, as Danny Dorling argues, is but the tip of a pyramid of social harm. Policies that tackle inequality are thus likely also to address the causes of a wider range of violence.
Tackling poverty and inequality will never be enough on its own, not least because much violent victimisation is also heavily gendered, directed by men against women. This means that much violence suffered by some of the most vulnerable in our society will not begin to be addressed until the systemic misogyny and sexism of British society is confronted.
Research has shown that millions of adult men have no difficulty in justifying in their own minds the violent assault of women. An uncomfortably large proportion of young men and adults can also think of scenarios when it might be appropriate to force a woman to have sex with them. As Steven Box once observed, `the engine of rape is not to be found between a man's loins, but in his mind'.
But attitudes themselves are rooted in a number of things, not least of all the lived realities of men and women, boys and girls. Women's own vulnerability to male violence, for instance, would be reduced by strategies aimed at addressing poverty and income inequality, given that socio-economic position itself is an indicator of victimisation risk.
In societies such as Britain, where wealth and power is highly stratified, boys and men in positions of comparative powerlessness will also tend to resort to one of the few resources they have left - their own physical strength - to achieve power and prestige. The resulting violence will often be directed against other males, which explains why young men are the group most likely to be murdered in Britain today. But women will also be on the receiving end. Boys engage in violent behaviour, Bob Connell has argued, `not because they are driven to it by raging hormones, but in order to acquire or defend prestige, to mark difference and to gain pleasure. Rule-breaking becomes central to the marking of masculinity when boys lack other resources for gaining these ends'.
The way in which gender roles are understood and enacted in any society thus has a powerful impact on the levels of crime and related harm that any society might experience. Inasmuch as material inequalities are a driver for a particular and destructive form of masculinity, it is plausible to argue that systematic attempts to address income and power inequalities in society will have a positive impact on gendered violence by helping to address the causes of male violence.
Male violence towards women is only one of the ways in which unequal power relationships are enacted and reinforced through violence and coercion. Any set of policy interventions aimed at reducing crime and minimising harm would need to confront the dangerous attitudes and behaviours all too frequently directed by adults towards children and young people, for instance. It would need to think seriously about how crimes of the powerful, and not just the powerless, should be addressed.
The question of how crime can be tackled and harm minimised can only begin to be considered seriously when the criminal justice system, which looms so large in current debates, is put to one side. Mapping out this alternative agenda, escaping the policy cul-de-sac into which New Labour has marched us, is a major challenge for any political programme that would consider itself progressive.
This article was published in the journal Renewal. It is an abbreviated version of Right for the wrong reasons, by Richard Garside, Acting Director of the Centre for Crime and Justice Studies and Chair of the Crime and Society Foundation. Right for the wrong reasons was published by the Crime and Society Foundation in July 2006. For information and an opportunity to contribute to the debate, click here.