Justice Committee, November 2008


Tuesday 25 November 2008

Witnesses: Nick Herbert MP, Conservative Shadow Secretary of State for Justice and David Howarth MP, Liberal Democrat Shadow Solicitor General.

Chairman: Mr Herbert, Mr Howarth, welcome to two colleagues. It is not quite the sort of session you might have been expecting because we want to explore with you how the sorts of attitudes we have been looking at earlier influence and affect the development of policy. We will not be giving you a quiz on your party's policies as such but rather more exploring what governs and affects the development of policy in this area.

Q496 Alun Michael: I want to start with a very basic question which I also think is quite an interesting one. What in your view is or should be the fundamental purpose of the criminal justice system?

Nick Herbert: That is an interesting question. It also goes to what the purpose of prison is too. I suppose the purpose of the criminal justice system overall is to ensure that the public can be safe and that means that where people have committed offences they are dealt with. They are firstly punished because society does demand that if we are not to allow individuals to take the law into their own hands or to exact their own punishment that society must take on some role to ensure a proper and humane punishment. Secondly, that some form of reparation must be done to the person who is the victim of the crime. Thirdly, the offender is rehabilitated in some way so as to prevent that crime from happening again. One of the things which has gone wrong with the debate about prisons is that the third principle which I outlined has been too overlooked and prisons have been regarded sometimes as places simply of punishment, the punishment essentially being that the person is deprived of their liberty, but places where offenders may be incapacitated certainly, although they are not properly incapacitated if they are released early, but not places where offenders have effectively been rehabilitated. We have seen high re-conviction rates in relation to criminals who have received custodial sentences, particularly high in relation to juvenile offenders and actually relatively high in relation to community sentences as well. So we are failing to prevent the cycle of crime. It is in that respect that the criminal justice system is failing and I think that a great deal more attention needs to be paid to the rehabilitative purpose of sentencing and of the criminal justice system and its effectiveness.

David Howarth: I think the purpose of the criminal justice system is to minimise the harm from crime and that harm consists in the first place and most importantly the harm done to victims of crime. We must be trying to reduce that harm done to the direct victims. That is the first and most important part of it. Secondly, it includes the fear of crime. The fear of crime is harm done that the criminal justice system should be seeking to minimise. It seems to me significant in Professor Loader's evidence that there is one fifth to one quarter of the population who do not experience much crime and yet are terrified of it. That is harm done and we need to minimise that as well. The third harm is the harm that is produced by devoting resources to this grim subject, that the resources that we devote to the criminal justice system I think most people would much rather see devoted to something else but nevertheless we have to do it and that is why we are under a duty to use those resources as effectively as we can. If you put those reasons together, that is why the question of what works, raised by David Heath, really is important. It is important because what is the opposite of doing what works? It is doing what does not work. Politicians who persist in policies which do not work are effectively raising the crime rate. They are failing to reduce the crime rate, they are failing to reduce the harm from crime in all three of those ways.

Q497 Alun Michael: If I may suggest to you, the question is actually quite an important one because where there is a consensus about the purposes of the system it is easier to squeeze out those outcomes. Both of your answers - and all of us share this - are quite complex answers because there are several different issues. When we defined the requirements of the youth justice system as being to prevent re-offending in the 1998 Act it has had some beneficial consequences in focusing on stopping re-offending and that has driven the youth offending teams. I suggest to you that if there were a political consensus around what the purpose of the system is, that might well be beneficial in driving the system, whichever government is in power at a particular time.

David Howarth: That is absolutely right. There can be disagreement about how, but if there is less disagreement about what we are doing then we can move ahead. We can produce enough of a consensus. It is not a question of producing a consensus about everything: it is producing enough of a consensus that the debate becomes more rational at national level and, as Professor Loader said, we can then go to a more local engaged part of the question, drawing more people into the system to rebuild confidence in it from the ground up. At the moment the problem is that confidence leaches away at national level and we all shout about it and seem to disagree about things where in reality I do not think we are disagreeing at all.

Nick Herbert: I am interested in your comments about actually stating that there should be an objective to reduce re-offending. If you look at the prison system now the political priority that there has been in terms of the management of prisons over the last few years was firstly to prevent what was seen to be a great difficulty at one time which was escapes, the security of prisons and an enormous amount of attention was placed on that. You may remember that. Then there was the decency agenda in ensuring that, for instance, slopping out was made a practice of the past and so on. While there may be objectives relating to reducing re-offending in terms of the management of prisons, it is not a prime objective. Neither of us would want to give up on the decency agenda or on the security of prisons, the safety of prisons both for the public and prisoners internally. I do not think it is a driving ambition of the Prison Service to reduce re-offending. I do not think that prison governors would honestly say that it is their day-to-day priority to reduce re-offending, not least because they are only holding prisoners for the duration they are in their jail and someone else is responsible for reducing re-offending when they have left.

Q498 Chairman: There is excessive movement and the complications of some of the forms of sentencing we have.

Nick Herbert: Absolutely and therefore you have problems of accountability. Who in the criminal justice system is accountable for delivering what I think would be a consensus about what we actually want to achieve going forward which is a reduction in re-offending. The Government's attempt to introduce accountability in relation to the penal part of the system and the creation of NOMS, the national offender management system has of course been highly problematic.

Q499 Alun Michael: For the avoidance of doubt, my reference to the point where it was made clear what the purpose was was in relation to the youth justice system where there is specific clarity in law about what its purpose is. That fits with the evidence we heard for instance from Victim Support in an earlier session. There when asked what they would prefer, short of the offence not having happened in the first place they wanted re-victimisation not to take place. It is a very interesting focus.

David Howarth: The question is not what is now presently thought to be the purpose of the system by the people in it. The real question is what they ought to think is the purpose of the system. You are right that they ought to think the purpose of the system is to prevent re-victimisation. The reduction of crime has to be the guiding principle for the whole of the system, including each particular part of it.

Nick Herbert: If we think that reducing re-offending is really important then why is it that we do not have available the performance of individual prisons in reducing re-offending. Of course there are legitimate arguments about prisoner movements, as the Chairman pointed out and excessive prisoner movements are a real problem. We are told that data is not available although individual prisoner governors claim that it is available. Can we envisage, for instance, that there would be a school or that we had a policy which said that the individual success of the school in terms of its exam results is not measured or that the success of a hospital in terms of its treatment of patients was not measured? The very fact that that data is not available - perhaps you will have more success in retrieving that data from the Ministry of Justice than we have hitherto - reveals the fact that there is not actually a driving objective within the system to reduce re-offending.

Q500 Dr Whitehead: We heard earlier on about the fact that although crime is falling 80% of the public just do not believe it. We heard also the idea that there could well be, perhaps as a result of some of those perceptions, an arms race between political parties to out-tough each other in terms of criminal justice policy. Do you think it is possible, in the light of that general atmosphere to implement effective community-based crime reduction policies or do you think an arms race and an out-toughing policy inevitably trumps those considerations?

David Howarth: I think we have to end the arms race because ending the arms race is a necessary condition of moving to a more rational policy of the sort you describe. The arms race itself was created by particular political conditions in the 1990s. The question is whether those political conditions still continue. It was created by us and there is a lot of debate about the influence of the media on policy; you have just heard a whole session about that. All the newspapers always reported crime, they always put crime on the front page and it has always been a way to sell newspapers. The toxic bit was the politicisation of crime which we did as politicians and it is up to us to try to draw that poison out. Until we do that it is not possible to move ahead but I think it is possible for us to do it. It needs a number of different things to work. I agreed with almost everything Professor Loader said until right at the end where he implied that there was a choice to be made between re-insulating the criminal justice policy-making process at national level by introducing something like a national institute for criminal justice excellence, some kind of neutral body of expertise, between that on the one side and more local involvement in criminal justice on the other. I think you can do both of those. At national level it would help to neutralise the national debate by having that sort of institution but it is not enough by itself, you also need the local involvement. The further thing you need is political will to declare some sort of truce between the parties on this issue. If you do not have that then all the institutions you have built will not last more than a week and the press loves conflict and if we give them conflict then they will use it.

Nick Herbert: I am sceptical of this idea that the public are just wrong about crime and that all we need to do as political leaders is educate them. I do not think the public are wrong and if we as elected politicians start from the position that they are, then we are starting from a very bad position. Firstly, the crime figures themselves can be contested, they tell us different things, there are two measures of crime, one of the measures of crime, the British Crime Survey, we know leaves out whole swathes of crime, particularly in relation to young people, a particular area of concern at the moment. It is almost certainly true that violent crime has risen on any of the measures and having a measure in which the public can put their trust will be very important and there should be an independently produced and public measure of crime that is completely separate from government.

Q501 Chairman: Do you think the public, notwithstanding the research material, has a broadly accurate perception of the level of crime and a broadly accurate perception of the level of sentencing?

Nick Herbert: Yes. That is a very general question. I do think that the public has a broadly accurate concern about the level, for instance, of violent crime yes and anti-social behaviour yes, if you are going to strip out the two.

Q502 Chairman: Not concern but perception of how much it actually is.

Nick Herbert: I know that there is work which suggests that perceptions are influenced by the wider media and that if you start asking people about their individual perceptions of crime locally, there are differentials. I would rather just take it back to ask whether public concern about the level of crime in this country is right or wrong. I think the public is right to be concerned about the level of crime. We are a relatively high crime country by comparison with our peers; the quantity of crime over the last few decades has risen markedly. If we take a step back from whether it is going up or down in any particular year then the amount of crime that there is in society should be of concern to politicians. The point that I was seeking to make was that if we had a dispute about the data, then we could get very bogged down. The first thing we could do is actually have an independent publication of the crime figures so that the public could have more trust in them. I do actually think that the public has an appetite for new thinking in relation to criminal justice policy. I think they are looking for more rounded arguments, they are aware of the limitations, for instance, of a policy which appears to focus only on a custodial element of building more prisons, the old debate. I think there is an appetite for new thinking about social policy and some of our political leaders over the past few years have tuned into that. Tony Blair tuned into that, albeit briefly, when he talked about the causes of crime. I believe David Cameron has tuned into that in trying to focus on social measures and the important things you need to do to deal with crime over the long term. What I do not think politicians can do is follow what I thought was the suggestion that was made by your previous witnesses which was somehow to contract out responsibility in this area in the way that we contract out the management of monetary policy because we lose faith in political institutions to be able to deal with the problem. We cannot contract out our responsibility as elected politicians to decide the right sentencing framework, albeit that judges can award individual sentences. We cannot contract out our responsibility for making communities safe and dealing with crime. We are on a very sticky wicket indeed if we think all we have to do is communicate to the public that really they are quite safe and it is just that they do not realise it.

David Howarth: It is not an all-or-nothing thing. What is being called for is not a contracting-out of policy decision-making but simply an independent body which looks at the numbers, looks at what works what does not work and gives an independent view. I think that would help everybody. I am perfectly happy to concede that crime has been falling in this country since 1995. The one thing which bothers me about the way the Government present the situation is that they fail to mention that crime has also been falling in every other Western European country since 1995 except Belgium and that Britain remains right at the top of the list in terms of victimisation rates. So there is something to be concerned about. What we should be concerned about is why we are still at the top of that European list with 30% above the median for victimisation and also about 30% above the median for imprisonment as well. Those two things are obviously related and we should be doing something about them.

Q503 Dr Whitehead: The presentation we heard earlier also talked to some extent about the media portrayal of crime and the extent to which large numbers of people who have had very little experience of crime in their own lives nevertheless have very considerable fear of crime even though they do not have direct experience, regardless of the overall figures. Do you think that the media portrayal of crime does have some kind of veto hold on public opinion in terms of what you have discussed about measures to move the debate on criminal justice policy, particularly on community-based crime reduction policies so that the combination of public opinion on crime and media reinforcement of that means that then actually a discussion is necessarily bounded by that view rather than being reinforced by changes in public view.

David Howarth: I was very struck by the figures Professor Loader gave and I think they were very optimistic figures; more than half the people are not bothered all the time by crime and they are not particularly affected by it in their daily lives. It is the other two groups we need to worry about. We need to worry first about the group that are victimised a lot by crime and are worried about it quite rightly, naturally. That is the crucial group. This third group of people who are not affected but are very worried - I think they were described as the worried well - is a group to be concerned about and concerned about their fear of crime, but they do not have a veto on the debate. It is one fifth or one quarter of the population and if there is a group whose view is affected by the media it must be that group because the view of crime of the people who are really victims of crime a lot will be mainly determined by their own personal experience and the people who are not worried are not going to veto progress. The question is: how important is that group? That is the first point. I do not think it is a veto group. The second point is that people in politics give far more importance to the media than almost anybody else. We are the people who obsess about what the media says; we are probably the only people in the country who read editorials in newspapers and think they matter. In a way a lot of this is in our own heads and if we were determined to do something I do not think it would matter much what the media said.

Q504 Mr Turner: You suggest that we should disregard the last quarter, those who were not affected but were worried, had concerns.

David Howarth: Not disregard them; we should be rather concerned about the situation they are in.

Q505 Mr Turner: The problem is that they actually are connected with people elsewhere in other parts of the country particularly where they do have fears and it is the families, the grandparents of children somewhere else who are particularly worried about it.

David Howarth: That is definitely a possibility and that is why there is probably a need for more research about precisely how these figures come about. The main group to be concerned about are the people who really are the victims of crime, the people who are concerned about crime and who really are victims. What we should be doing for them is trying to do whatever we can to get the crime rate down. They are the primary concern of these three groups.

Nick Herbert: When people talk about the media's responsibility in relation to the fear of crime they almost always mean tabloid press and it is interesting that usually what is observed about the tabloid press is that their circulations are lower than they used to be and that the media is becoming ever more fragmented, that people are gaining their news from a far wider variety of media outlets than hitherto and that the power of the tabloid press is therefore reduced. We have to have recognised that the media are very well attuned to what the concerns of the public are; sometimes rather better attuned than we as elected politicians are and that there are millions of victims of crime every single year including the victims of low-level crimes, many of which are not reported, minor incidents of anti-social behaviour, nuisance behaviour, vandalism which people simply do not bother to report because they believe that nothing is going to happen. This touches upon people's lives and upon their attitudes to crime generally and to the ability of the criminal justice system to deal with it. We are on a hiding to nothing if what we say is that this is all got up by the media. Really we are far safer than the public realise and we should concentrate our efforts on telling the public that. We do not have control of the media and rightly so. Of course there needs to be good, accurate information out there and one of the things we could do is tell the public more about what is happening to crime in their area, which is why I think crime mapping is such an important and powerful tool in order to give the public more direct information. The police are increasingly wanting to give the public more direct information because they recognise the value of that. I do not think that it profits us to be concentrating on the way in which crime is reported by the tabloid media because they will go on reporting it in whatever way they want to. What we should focus on is effective policy interventions to try to minimise crime and deal properly with crime when it happens.

Q506 Chairman: Neither of you has mentioned and perhaps both of you discount the effect of the literature that parties themselves produce, delivering large quantities to people's doorsteps as part of their political campaigning. I wonder whether either of you has been frustrated by literature or indeed embarrassed by literature you were delivering or annoyed by other people's literature because of the language which sought to label opponents as tough on crime and somebody else as soft on crime. A lot of that material goes out. Are you actually saying that this is all a complete waste of time and it does not affect anybody at all or that actually this is a legitimate message to accuse opponents of being soft on crime and make claims to be tough on crime?

David Howarth: It has some effect. Perhaps that might take us into a different discussion about the use of party funds for various campaign techniques. I took a conscious decision at the last election not to make exaggerated claims about crime and not to make accusations about the Government. I was fighting in a seat held by the governing party. The other side campaigned on crime and anti-social behaviour as normal and I do not think it did me any harm. As part of the consensus I think we should not give up campaigning about things which bother the public, that would be wrong, but we should watch our language and watch the degree to which we make unfounded accusations.

Q507 Chairman: Is the soft/tough dichotomy really a helpful way of presenting crime issues? Several parties have engaged in it obviously.

Nick Herbert: There are legitimate things to point out and policy areas which parties make. For instance, at the moment a policy area which the Government are making relates to the early release of offenders. It has been shown that has put the public at risk and it is a legitimate thing for my party to put out. You cannot seek to try to prevent that. We all know, as Members of Parliament who have stood as candidates ---

Q508 Chairman: Against each other in our case.

Nick Herbert: I learned everything about campaigning from you Sir Alan. --- that there is genuine concern about crime in local communities and a candidate who did not talk about that would be in a certain amount of trouble. I look forward to someone standing in Arundel and South Downs as the everything-in-the-garden-is-rosy candidate, who says that we do not need to mind about crime and that it is all built up by the other candidates. Even in the relatively low-crime, affluent, rural area such as the one I am privileged to represent there is concern in the villages I represent about anti-social behaviour. There is a level of anti-social behaviour and people want to know what is being done about it by their elected politicians at the local and national level.

Q509 Julie Morgan: I want to ask about your views on the Corston report. I wonder whether you accept all of the Corston report and how you would set about implementing it.

Nick Herbert: I think that the thrust of the Corston report is right, in particular in relation to siting places which hold women prisoners more locally to the communities of the offenders. I think that is the right direction for policy and it is in stark contrast to the suggestion of Titan prisons, which is about holding a large number of offenders further away from communities. We would encourage the Government to come forward with proposals about how they are going to implement Corston

Chairman: If either of you feels that there are things you would like to add please communicate with us in writing. I do apologise both to you and my colleagues that the session has been disrupted but it is only fair that we let you go at the time we said we would let you go. Thank you very much.

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25 November 2008

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