The Secret Barrister

by The Secret Barrister

  Restrictions on liberty other than prison – such as curfews or several hundred hours of unpaid work in the community – don’t count as punishment. They are ‘soft’. Never mind that any practitioner can give you a list of clients who have literally begged the judge to send them to prison rather than do unpaid work – as with Kyle, the young man we met earlier in the magistrates’ court. If it’s not custody, the defendant will ‘walk free from court’. The judge will be a ‘woolly liberal’. The criminal will have been given a ‘slap on the wrist’.

  A depressing example did the rounds in late 2016, as a Conservative MP’s Private Member’s Bill – the Awards for Valour (Protection) Bill – gained the approval of the House of Commons Defence Select Committee and took one step closer to the statute book. This Bill sought to criminalize ‘Walter Mitty’ characters who wore unearned medals or insignia awarded for valour ‘with intent to deceive’. Note that this Bill was not aimed at those who falsely wear honours to gain financial advantage, such as collecting for a fake charity; fraud laws already cater for those. Rather the explicit target of the Bill was people – usually tragic, deluded and mentally unwell old men – who caused no harm other than the insult felt by the military. And, of course, a conviction and the payment of a fine, or compensation order, was not a sufficient maximum penalty; the Bill called for prison sentences of up to six months.

  I am guilty too. In this chapter I have embraced the same ingrained assumptions. When I condemn Sentencing Guidelines and statutory maxima for violent and sexual offences, I do so in broad, abstract, quantitative terms. I ask whether the prison sentence in a hypothetical scenario is ‘enough’ or ‘too much’, as if the inquiry ends once our vengeance is sated by the quotient of punishment. Those are the terms of our public debate.

  And I should know better. I’ve been in the court prison cell when mentally ill clients, who have just been imprisoned for serious, nasty offences, have been smashing their heads against the cell walls, howling as hordes of G4S officers rush in to tackle them to the ground ‘For Their Own Safety’. It is clear that the only thing that their incarceration will do is satisfy our need for punishment, when so much more is required.

  Our national fetish has seen the England and Wales prison population soar by 90 per cent since 1990, standing at 85,500.26 We imprison people at a higher rate (146 per 100,000) than anywhere in Western Europe. Northern Ireland, by comparison, has an imprisonment rate of 76 per 100,000. Sweden’s figure is 57. Iceland’s is 38.27 Nearly 68,000 people were sent to prison in 2016. 71 per cent had committed a non-violent offence. And our sentences are getting longer. The average prison sentence for indictable offences has increased by over 25 per cent in the last decade.28 We have more prisoners sentenced to an indeterminate term of imprisonment than in the other forty-six countries in the Council of Europe combined.29

  I don’t for a moment suggest that prison isn’t ever the right sentence; some offences are plainly so serious that justice can only be met by prioritizing punishment and immediate public protection through a lengthy custodial sentence. Often people who receive prison sentences have done awful things. Something that never fails to surprise me in this job is the capacity of human beings to hurt each other, in particular those they either claim to love or barely know. Some days you have to self-numb to get through some of the Victim Impact Statements given by those affected. A young teacher describing how, following an unprovoked attack on her and her husband outside a restaurant by two passing thugs, she had miscarried their first child and, a year later, was still unable to leave the house and was regularly self-harming, will never leave me. Sympathy for those who inflict such wanton destruction is difficult to come by.

  But many people in prison are not monsters. And even for those who are, the limitations of prison as we currently do it are known and trite. Yes, it punishes and temporarily incarcerates, but its utility beyond that is negligible. Counter-intuitive though it may sound, there is no proven causative link between higher prison numbers and lower crime rates; while crime as measured by the British Crime Survey fell over the 1990s as incarceration levels soared, they also fell in Western countries with significantly lower imprisonment rates.30 A leaked memo from the government’s strategy unit in 2006 suggested that 80 per cent of the decrease in crime was attributable to economic factors, not the swollen prison population.31 But even if that is wrong, and high rates of incarceration can be shown to keep numbers down, it is plain that our model has little to offer by way of rehabilitating or ‘improving’ the people that we’re releasing onto the streets. 46 per cent of all prisoners re-offend within a year of leaving prison. For those serving short sentences of less than twelve months, this increases to 60 per cent.32 Prison as we presently do it is an expensive way of making bad people worse. This is largely because while our politicians and media talk tough about longer prison sentences, they do not want to pay for them. Few votes and fewer clickbaits are found in a More Money for Prisoners campaign. But, with a few notable exceptions – such as Ken Clarke MP as Justice Secretary and former Deputy Prime Minister Nick Clegg – there is a conspiracy of cowardice that prevents politicians from treating the public like adults. The binary choice that should be presented is simple: We can either keep rising numbers of prisoners in humane prisons that serve a purpose beyond warehousing, for which the Exchequer – ultimately you, the taxpayer – must pay through higher taxation; or we can shift paradigms and explore evidence-based policy from abroad that would see the use of prison radically reduced, and non-custodial, restorative and rehabilitative alternatives envisaged not as a ‘get-out’ but as meaningful components of a working justice system.

  Instead, recent administrations have opted to keep rattling the custodial sabre, but not only have they not provided the additional funds that a rising prison population requires, they have on the altar of austerity slashed the prison budget by a quarter. Between 2010 and 2015, the National Offender Management Service (NOMS), which, until 2017 (when it was reimagined as HM Prison and Probation Service), was responsible for prisons in England and Wales, had its budget cut by £900 million.33 In order to make nearly £1 billion of savings, prison staffing levels were reduced by 30 per cent. As of 2016, there were 13,720 fewer staff in the public prison estate looking after 450 more people.34

  In a drag race to the bottom, ‘benchmarking’ was introduced, in which publicly run jails were required to peg their costs to the same level as the ‘most efficient’ – read ‘cheapest’ – in the private sector. One of the reasons that private sector prisons were so ‘efficient’ is that for seventeen years they have had higher rates of overcrowding than public sector prisons – shoving more prisoners into tinier spaces.35 A quarter of the prison population is overcrowded, with prisoners doubling up in cells designed for one person,36 in order to secure an arbitrary 20 per cent reduction in the cost of prison places (now at £35,000 per year).37 Around the same time, Chris Grayling MP, Secretary of State for Justice between 2012 and 2015, announced his populist plans to make prisons, already hideous tombs of violence, death and terror, ‘less lax’ and more ‘spartan’, introducing severe restrictions on prisoners’ ‘privileges’ – which famously included an unlawful ban on prisoners being sent books38 – and displaying a bizarrely prurient obsession with stopping inmates having sex.39 It was not enough to deprive people of their liberty; their lives had to be made extra intolerable to satisfy the public’s perceived lust for blood.

  The human cost has been horrific.

  Stepping inside a prison will immediately quell any agreement you may have with red-top caricatures of holiday camps. Prisoners are locked up for up to twenty-three hours a day in filthy, dilapidated cells in which they eat all their meals and use an unscreened lavatory in front of their cellmate.40 Cockroaches crunch underfoot, surrounded by broken glass, peeling ceilings, broken fittings, graffiti and damaged floors.41 Giant rats’ nests add infestation to the population.42 Drugs have flooded in as prison staff struggle to maintain order. 43<
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  The vast majority of prisons – 76 out of 117 as of May 2017 – are overcrowded.44 Violence is off the scale. In the year to June 2017, there was a record high of 41,103 incidents of self-harm and 27,193 assaults. The violence is not just between prisoners; there were 7,437 assaults on prison staff, a rise of 100 per cent in one year. Sexual assaults more than doubled between 2011 and 2016.45 In February 2017, inspectors concluded that ‘there was not a single establishment that we inspected in England and Wales in which it was safe to hold children and young people’.46 Prison deaths are at record levels: 354 prisoners died in custody in 2016. Of these, 119 were suicides.47 And not surprising given what is known about prison demographics.

  Prisoners are largely drawn from the most damaged and dysfunctional nooks of society. The majority have the literacy skills of an eleven-year-old.48 An estimated 20–30 per cent have learning difficulties, although the vague figure is a reflection of the damning failure of the prison system to identify and support them.49 Over half of women prisoners and over a quarter of men report being abused as children. Mental health problems exhibiting symptoms of psychosis are reported by 26 per cent of female prisoners and 16 per cent of men, compared to 4 per cent of the general population.50 Drug and alcohol abuse feature for the majority51 and 15 per cent are homeless.52

  And how are these complex factors addressed? How do prisons begin the sensitive, vital exercise of trying to delicately unstitch and repurpose the damaged fabric of these lives? They don’t. They can’t. ‘Purposeful activity’, which comprises education, work and other rehabilitative programmes, is at record lows, with only a quarter of prisons marked as ‘good’ or ‘reasonably good’, an inevitable consequence of staffing levels that mean prisoners are unable to leave their cells.53 Three-quarters of educational facilities inspected by Ofsted were ‘inadequate’ or ‘requiring improvement’.54 The overall performance of a quarter of prisons was marked ‘of concern’ or ‘of serious concern’.55

  In late 2016, as the violence swelled, and caged, mentally ill and unsupported men killed themselves and each other, and prison staff threatened industrial action,56 and prisoners rioted to an extent unknown since the early 1990s, the government pledged to invest £1.3 billion over four years to fund 10,000 new prison places, and to recruit 2,500 officers. But even assuming that quality recruits will be attracted by the £9 per hour rate and sufficiently equipped by a ten-week training scheme – which is the shortest in any jurisdiction in the world57 – this will still not even restore prisons to the under-resourced levels of 2010.58 And the government, with an eye on the tabloid press, has publicly ruled out anything as sensible as reducing the number of people our courts are imprisoning.59 Grown-up debate and evidence-based policymaking remains as elusive in prison policy as it does in our country’s infantile attitude to drug prohibition; a revisitation of which would be one practical way of getting a lot of people who pose no threat to society out of prison.

  So we can look forward to the Big Sentencing Con continuing, with more and more damaged people warehoused in fatally dangerous, squalid conditions on the general happy agreement that this is what a successful justice system looks like. The only concession to lowering numbers remains the minor reductions carried out by sleight of hand post-sentence, in the guise of those little-known, complex early release provisions understood by no one. This valve may be opened to effect temporary pressure relief, but is neither a sustainable solution to overcrowding, nor does its use for that purpose command public confidence. Watching politicians surfing the airwaves to boast about tougher sentences for the fiends du jour, only to discover that said fiends are serving a fraction of that sentence because we don’t have the resources to keep them imprisoned, starts to look like one of the biggest public cons of all.

  A final word should be said about honesty. Rail as I might against the political bent of tabloid commentary, editors are of course free to pursue whatever pro-prison agenda sells copy. I may not like it, I may think that it perpetuates our regressive prison fetish, but a free press can and should make whatever arguments it likes. Where I draw the line, however, is where argument is supported by half-truth and misrepresentation. For while, as I have accepted, some inaccurate reporting is a product of the complexity of the law, quite often it is not. It is attributable to what is at best a reckless disregard for the truth; at worst, bad faith.

  In most cases, judges do explain, in accordance with their legal duty, the effect of the sentence passed and the reasons for it. And usually there is a cogent explanation for what might appear to be a light sentence. Reporters present in court will know that the judge has read three psychiatric reports, a probation Pre-Sentence Report and a catalogue of further medical references, and has after much consideration concluded that, exceptionally, this repeat burglar would be better off treated in the community, under a suspended sentence with stringent punitive and rehabilitative requirements. Sometimes the judge will explain that she is acting pragmatically. She may see that, because of the time spent on remand by the defendant, the custodial sentence she is required to pass on the guidelines would mean the defendant has already served his sentence, and may therefore impose a community order to ensure that the court retains a measure of control over the defendant for the next few years. Or, on the other end of the scale, the judge might loudly complain that she cannot, because of the guidelines or maximum sentence available, impose a lengthier spell in prison, perhaps following a prosecution decision to accept guilty pleas to less serious offences that dramatically clip the judge’s sentencing wings.

  But such context is frequently absent in the news reports. And it is wholly dishonest. One case that I appeared in saw the judge open his sentencing remarks with a lengthy diatribe against the inadequacy of his sentencing powers as set by Parliament. ‘If I could give you more, I would,’ he told my smirking client as he handed him the maximum available. When the sentence was reported by a national tabloid, the judge’s ‘lenient’ sentence was ‘outrageous’. ‘Something needs to be done about that judge,’ the pull quote read. The judge’s remarks were not reported.

  The list of deadly sins continues. ‘Walk free’ is used to describe a suspended sentence of imprisonment, with no explanation either of the requirements – unpaid work, curfew, drug treatment – that the judge attached, nor of the way in which suspended sentences work: namely, if you reoffend or don’t do your requirements, you’re going inside. The judge will have explained for the record why the sentence is suspended; this should be reported.

  We see a constant failure to explain that defendants who plead guilty – thereby sparing the witnesses and public the ordeal and expense of a trial – are entitled by law to a reduction in their sentence of up to a third. If this concept offends you, you can view it another way: someone having a trial gets a stiffer sentence. But failing to provide a reader with this vital context renders whispers of soft sentence, soft sentence entirely mendacious.

  The point is perhaps best made by the opening quotation from the Mirror. As set out earlier, the figures show incontrovertibly that courts are imprisoning more people and giving them longer sentences than ever before. If 80 per cent of the public genuinely believe that offenders are treated ‘more leniently than in the past’, they are certainly being conned. But not by the system; rather by those from whose reporting the public are deriving these distorted, unevidenced views.

  11. The Courage of Our Convictions: Appeal

  ‘It is to the glory and happiness of our excellent constitution, that to prevent injustice no man is concluded by the first judgment; but that if he apprehends himself to be aggrieved, he has another Court to which he can resort for relief; for this purpose the law furnishes him with appeals, with writs of error and false judgment.’

  Lord Pratt CJ, R v Cambridge University, ex parte Bentley (1723) 1 Str 5571

  The impact of being imprisoned is difficult to estimate. The entire edifice of a life crumbles. It’s not simply the immediate, day-to-day horror of priso
n life; the squalor, the boredom, the omnipresent threat of bloody violence, the nervously watching your schizophrenic cellmate crouching over a radiator forging a shiv from a melted toothbrush and razor blades and wondering into whose neck it will ultimately be plunged. That part, I have been told, you learn to normalize. Or at least to self-inure. The killer is what is happening outside the prison walls.

  Your family and friends tell you on visits how they miss you, but while you are sitting caged in stasis for twenty-three hours a day, their lives carry on. And the absence of the daily minutiae of a free existence which we all take for granted creates the spaces of darkest loneliness. Your children are growing up and hitting their milestones, which you will enjoy second-hand through teary retellings over a screwed-down table in a raucous visiting hall flanked by guards. Your partner is going to work, and doing the weekly shop, and going for drinks, and seeing friends, and attending parents’ evenings, and imbuing rich new experiences, and cultivating new friendships, and maybe falling in love with someone able to offer more than a weekly bulletin on prison nonliving. And day by day, they, your children and your friends are adjusting to a life in which you are incrementally shunted from centre stage to noises off. Some will wait for you; if your sentence is short, the bonds may withstand the strain. But many won’t. People move on. They had lives before you. They’ve survived life without you. Even if they believe in your innocence and can withstand the stares, the gossiping, the incredulous looks – she’s standing by him?! – and the vicarious loss of reputation, the trauma of separation will ebb away at resolve.