Legal system in crisis: tougher sentences and extended police powers alone are not effective countermeasures to combat crime

The government’s ambitions in relation to the criminal justice system, over the next 12 months, were clearly evidenced in this year’s King’s Speech. Yet, despite a variety of newly proposed bills, professed fresh initiatives and a much-needed focus shift towards the safeguarding of victims, various suggested elements have an unfortunate familiar and hollow ring to them.

What are the effects on criminal justice administration?

The Ministry of Justice (MoJ) continues to slash its budgets year on year. This has had consequences not only for the physical infrastructure of the criminal justice system, but for those involved in the administration of criminal justice, and none more so than the junior criminal Bar. Since its inception in 1997, the Fixed Fee Scheme saw no increase only cuts in funding in the decade up to 2007. There was a modest increase in funding in 2007, but this fell well short of inflation at the time, an almost 10 per cent shortfall. In the subsequent years up to 2023, repeated cuts by successive governments have seen an inflation shortfall of a staggering 40 per cent in real terms. What this means in essence is that the criminal Bar has seen a real term decrease in criminal defence fees for almost two decades. The criminal Bar therefore remains chronically underfunded. There still exists the misconception of the well-healed barrister in the public psyche, and while this does exist, barristers feel the cost-of-living crisis like everyone else. The criminal justice system is in a funding crisis. It is primarily because of the dedication of the criminal Bar that the criminal justice system itself has been limping along for as long as it has. But so long as the government continues to ignore the crisis that is staring it in the face, many young talented barristers, who have already sacrificed so much to join the profession they love, will continue to leave that profession in droves.

As regards the government’s proposal to introduce a presumption in favour of a suspended sentence for custodial sentences, arguably, apart from the ‘presumption’ which amounts to nothing more than a jumped-up discretion, a discretion which already exists, there is nothing very new here. The criminal courts already have a discretion to suspend sentences from 14 days to two years, for up to two years. It is difficult to see how introducing this presumption for any offence for which the sentence is 12 months and below will change things in any material way. What the government is attempting here is to be seen to be legislating, taking action, to ‘grasp the nettle’ on something that perhaps happens in practice day-in-day-out in crown and magistrates’ courts all over England and Wales. The case of R v Phipps [2007] EWCA Crim 2923 illuminates quite well the attitude of the courts towards their powers in this regard. The Ministry of Justice reports in its statistics for January to December 2022 that about 42,300 suspended sentence orders were handed down to offenders for that 12-month period, ample evidence to suggest that what the government wishes to be seen grasping the nettle on, happens as a matter of course in courts up and down the country. This apparent grasping of the nettle by the government is nothing more than window dressing.

Another sentencing issue is the worrying proposals surrounding whole-life sentences. While the government is attempting to be tough on the most serious offenders (and this is to be commended), it does not seem to fully grasp the possible consequences for the victims of the most serious offences. Historically, there is credit given to a defendant who pleads guilty at the earliest stage of criminal proceedings. The starting point is up to one third. Quite the incentive. Now consider a situation where a serious offender, seeing absolutely no point in submitting an early ‘guilty’ plea, will now, seeing nothing to gain, opt to go to trial on the off-chance that they might be found not guilty. The consequences for victims are clear. Now, with the credit of entering an early ‘guilty’ plea off the table, the offender goes to trial where victims, in turn, will have to give evidence and relive the trauma of the offence, not to mention having to face down the defence counsel’s (rightfully) robust cross-examination. Tougher sentencing proposals such as these smack of populism and electioneering. While the government needs to be tough on offenders, it should not be done so at the expense of victims.

Impractical nature of newly proposed criminal justice practises

In turn, certain propositions put forward through the Criminal Justice Bill may be construed as impractical when reviewed through a logistical and ethical lens. The first matter that merits consideration relates to ‘compelling defendants to attend their sentencing hearings’.

Recent high-profile cases such as Lucy Letby’s and Thomas Cashman’s convictions for murder and their subsequent refusal to attend their sentencing hearings, have cemented this matter in the public’s consciousness. It is undoubtedly an issue of serious concern that should be afforded genuine consideration. However, is its inclusion in the bill based on merit or simply to appease public opinion?

Echoing the sentiments of the section above, the absence of robust funding to support prison staff, potentially suggests that due consideration has not been given to the fact that they are already overworked and underpaid. Any act of physically compelling convicted criminals to attend sentencing will undoubtedly be dangerous to staff. The death of Lorraine Barwell, a custody officer who attempted to transfer a prisoner from their cell at Blackfriars Crown Court, is clear evidence of what low staffing levels and the absence of a genuine risk assessment may result in. However, there is the possibility that this legislative proposition, in this instance, will seek to compel attendance through sanctions. This is unlikely as courts are already endowed with such powers, to hold defendants in contempt of court, should they elect not to attend. As such, an inference could be made that the current proposal either seeks to promote the use of force to ensure attendance of sentencing hearings or will simply operate as a reinforcing element for a court’s pre-existing powers.

Nevertheless, the call for offenders to attend their sentencing hearings is intended to bring a sense of justice and closure to the victims and/or their families, often through the reading of a victim impact statement, who are considered to be of central importance to the operations of the criminal justice system. Yet, the possibility of the convicted offender displaying a lack of remorse and engaging in abusive and disruptive behaviour, thusly shifting the focus of the proceedings back onto themselves, seems to have been discounted, despite being a serious cause for concern.

The second matter that will be examined is the wider power afforded to probation officers to use polygraph tests. Considering that the technology has been utilised in the UK since 2014, and was subsequently expanded to domestic violence offences under the Domestic Abuse Act 2021, what will these new powers effectively cover? Furthermore, there are some concerns regarding the technology itself. The accuracy of its detection ability is suggested to hover between 80 per cent and 90 per cent, although some research stipulates that it is far lower. Regardless, in criminal law cases the results of such tests are often inadmissible, which in turn prompts the question, why are they being used? Forensic psychologist Theresa Gannon, alongside her colleagues, conducted studies examining the likelihood of offenders disclosing something of interest when subjected to a polygraph. The disclosure rate was higher, particularly after the polygraph indicated that the offender was being deceitful. However, checking the truthfulness of the disclosures made was not feasible.

An inference can be drawn, taking into consideration the margin of error associated with the technology and increased disclosures post-indication, that the inherent usefulness of a polygraph test is partially rooted in the psychological pressure offenders may experience. Consequently, that may push them to disclose self-incriminating evidence, even if the test generated a false-positive indication of deception.

With the above in mind and despite the technology’s useful traits, a question remains. Considering the consistent underfunding of the criminal justice system, the lack of confidence in the complete accuracy of the results of polygraph tests and the existence of physical countermeasures to the process, is it worth continuing to expend resources on expanding pre-existing powers related to this particular endeavour?

The introduction of new, yet pre-existing, police powers

Examining police powers in England and Wales is also warranted as a result of the King’s speech and related briefing notes. It is important to note that we are in an era where the public trust in the Metropolitan Police force is at its lowest and there is a lack of clarity regarding the scope of their discretion and the law that affords such powers.

The trend of granting law enforcement new powers rather than encouraging them to utilise existing ones effectively poses a risk equivalent to similar instances before it. For example, the controversial stop and search powers that enable officers to question and detain individuals at their discretion. Hence, police officers are not expected to undertake a search randomly but have been known to do so on many occasions, resulting in accusations of stereotypical behaviour and racial profiling. A recent incident involves the dismissal of two London police officers after being found guilty of gross misconduct over the stop and search of two Black athletes after lying that they smelt cannabis in their car (Michael Holden, Reuters, October 2023).

To further elaborate, Section 60 of the Criminal Justice and Public Order Act 1994, grants officers unguarded discretionary powers to undertake suspicion-less searches for weapons when violence is anticipated. According to the Home Office, Black people are 18 times more likely to be stopped and searched under Section 60 than their white counterparts (2019/20 figures). To curb the high levels of racial disproportionality in stop and search, especially the use of unrestricted powers under Section 60, the Home Office introduced a number of safeguards in 2014 via the Best Use of Stop and Search Scheme (BUSSS). The safeguards were put in place to achieve greater transparency and community involvement in the use of stop and search powers (HMIC 2016), as well as ensure that the high standards required were met before a Section 60 stop and search was authorised. Amid the criticisms of misuse and abuse by police officers, in 2021, the Home Secretary at that time, Priti Patel announced the permanent removal of the safeguards as part of the ‘Beating Crime Plan’. Consequently, in 2022, the safeguards were reversed to allow more police officers to use powers in anticipation that serious violence ‘may’ occur rather than ‘will’ occur (Gov.uk, May 2022).

Rights groups, such as Liberty and StopWatch, who have closely monitored the Section 60 powers over the years, challenged the decision and warned against a return to the pre-BUSSS era that was marred by various challenges, such as a lack of transparency, police mistrust by communities and the blatant abuse of the stop and search authority. They contend that Section 60 is unproductive and that only one per cent of stops resulted in weapons being found. They also demanded that an equality impact assessment or review of any relevant pilot data should be provided to indicate the equality impacts and the efficacy of Section 60. In October 2023, StopWatch won the legal challenge and the Home Office have been instructed to release new documents relating to Section 60 stop and search (StopWatch.org, 2023). Critics argue that a history of poor use and longstanding ethnic disparities demonstrate that stop and search is a fundamentally flawed police power.

The government intends to extend police powers via an amendment of the Theft Act 1968 to enter a premises without a warrant to seize stolen goods, when they have reasonable proof that a specific stolen item is inside a property or premises. As a result, the requirement that the police must prove to the court that there are reasonable grounds for the warrant would be bypassed. Former Conservative Cabinet Minister Mr David Davis highlights the potential implications for human rights protections: “The right not to have the state kick your door down without judicial approval is a massively important British value” and recommends that the government reconsiders their plan (Chris Mason, BBC News, November 2023). Additional police powers, such as those proposed, are bound to have serious implications for groups who are susceptible to racial profiling and stereotyping. This is similar to the stop and search powers, where officers are more than likely to deviate from applicable legislation and guidance. It is an extended version of the Section 60 stop and search authority in terms of equality impact and effects on human rights. It could further damage the relations between the police and the communities that they serve. Hence, it is crucial that an independent review of the proposals is launched to establish its legality. An effective safeguarding mechanism should also be put in place if the amendment is to go ahead.

Mark Tsagas is a lecturer and researcher in law and legal ethics, Olubunmi Onafuwa is a senior lecturer and researcher in law, and Patrick Glennon-Farris is a barrister and senior lecturer, all at the Royal Docks School of Business and Law, University of East London
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