2010年10月30日星期六
2010年10月22日星期五
Don't limit access to solicitors for those in custody - it won't save money, argues Jan Davies
Limiting access to solicitors for those in custody is a false economy, argues Jan Davies.
Police officers must have been cheering in the wings when Theresa May made her speech at the Conservative conference. Her promise to scrap the "alphabet soup" of police powers invented by Labour to deal with anti-social behaviour means an end to the tedious work of putting together the paperwork for applications to courts. As she explained to the conference, there are ISOs, ABCs, ASBis, ASBOs and CRASBOS, and whether any of them do any good is very doubtful.
ASBOs (Anti-Social Behaviour Orders) were supposed to be Labour's "flagship" for dealing with yobbish behaviour in communities. Latest figures show that 50% of them are breached. I suspect that the percentage of actual breaches is far higher than that: the orders are sometimes drafted in terms that are difficult to observe, prohibiting a youngster from going to his local parade of shops or entering an area defined by a map. They criminalise activity which is not in itself criminal, and thus are not respected.
For many concerned with criminal justice the coalition government has made an excellent start. Dismantling the Soviet-style control of the Labour government was long overdue. We are hoping for an end to council employees rifling through rubbish bins looking for items which have accidentally not been put out for recycling and to heavy handed surveillance of people taking their dogs for walks. The identity cards scheme, with its intrusive database, has gone.
Theresa May - while saying it is not her job to tell the police how to do theirs - has indicated that there will be an end to obsessive monitoring of targets and a return to common sense policing. For too long officers have been hounded by the demands of their superiors to increase the numbers of "sanctioned detections" - arrests for cases suitable for charge. I should like to hope too that this will lead to more discretion in dealing with domestic disputes so that where all that has happened is some trivial pushing or plate-throwing and a couple want to get back to normal as soon as possible, there will no longer be the pressure to charge a criminal offence, though that is perhaps too much to hope for.
Mrs May is sensibly looking at other simpler options: individual acts of vandalism will perhaps attract more severe penalties. She could, for example, increase the penalty for Section 5 of the Public Order Act 1986, a charge much beloved by some police officers when they feel that their dignity is under threat, so that the really bad cases can be dealt with by something more severe than just a fine which the impecunious yob will rarely pay.
Cutting back on form-filling and paperwork generally will be welcomed in police stations. Considering the effect of shutting local stations on police travelling time might also be a good idea. In Thames Valley we have the ludicrous situation where the custody cells are in one place and the CID in another.
But as so often in the criminal justice system, while one arm of government is looking for common sense solutions and attempting to improve standards another is contemplating an act of vandalism. It was the government of the supposedly hard-nosed Mrs Thatcher that introduced the Police and Criminal Evidence Act in 1984 which had the effect of putting solicitors into police stations. Section 58 gives every person arrested and held in custody at a police station the right
to consult a solicitor privately at any time.Only in very carefully defined circumstances can this right be withheld. Where a person refuses to answer questions when interviewed, a court can draw an "adverse inference", but this effectual curtailing of the right to silence has been balanced by the right to consult a solicitor before the interview and for the solicitor to be sitting in on the interview.
When a person comes into a police station under arrest and is "booked in" by the custody sergeant he is immediately told that he has the right to consult a solicitor in person or on the telephone, and at the start of any tape-recorded or DVD-recorded interview he will be told that this right is an on-going one and that if he has decided not to have a solicitor present he can change his mind.
Now the coalition government has said it is considering withdrawing that right. Perhaps instead of officers asking a suspect before an interview starts "You decided not to have a solicitor. Are you sure you are happy for this interview to go ahead without a solicitor present?" we shall hear introductions like "Yes, I know you said you wanted a solicitor... well, you see legal aid no longer pays for someone to come. You will have to manage without..."
Advice on the telephone is rarely adequate in any serious situation: there is no security that the conversation is not recorded, and unless the suspect knows his solicitor very well indeed he will usually be reticent about why he is in custody.
No one in the Conservative party said before the election that they were considering this draconian move. Dominic Grieve, who was the spokesman on legal aid before the election, gave the impression that he understood the problems of legal aid solicitors and was aware that many of them were "as poor as church mice". Many solicitors voted Conservative in the expectation that with the threat of competitive tendering for legal aid contracts having been removed, some common sense solutions would be sought for any problems.
Sadly, being in charge of legal aid is not a highly prized position, although no one would seek to blame Mr Grieve for being punted off to be Attorney General. The position does not attract stars - Geoff Hoon started his career making a speech to the Criminal Law Solicitors Association annual conference which I recall being full of clich?s. Now we have Jonathan Djanogly, of whom little seems to be known other than that he is said to be a multi-millionaire who was in trouble with his Commons expenses, and was supposedly "privately condemned" (if you believe the Daily Mail) by Sir John Major for making greedy claims.
I would like to think that before any move is made to scrap the right to legal advice in police stations Mr Djanogly will look at the reasons why it had to be introduced in the first place, the miscarriages of justice, the complaints of bullying and mendacious tactics by investigating officers. It is no good thinking that just because interviews are tape recorded this is a sufficient safeguard. It is what happens outside the interview room that can be the problem, and a solicitor barging in and looking at the custody record to see what has been going on is a brake on abusive behaviour - and can also protect the police from scurrilous complaints.
Kenneth Clarke, now Justice Secretary, is intending to cut the number of firms able to do criminal legal aid, proving that "Unto him that hath shall more be given". Larger contracts, according to a report in the Law Society's Gazette, will be awarded to a small number of providers. We should not be surprised perhaps that someone who said he had not managed to read the Maastricht Treaty cannot be bothered to look beyond the plans that Labour had before the election.
There were nasty rumours before the election that Jack Straw was cutching up to the large firms. Some of these are thought to be desperate. Criminal work has little security. It fluctuates. (I have noticed, incidentally, that the number of arrests plummets at the end of the police financial year when there is not much overtime available, and a senior police officer told me "You could have something there, you know".) Criminal legal aid does not mix well with large overheads, long office leases and staff to pay. It is the small practitioners who have been keeping the system going at a time when rates have been frozen and even substantially cut. Now it seems they are to be punished by being put out of business altogether. How does this fit in with Conservative support for small businesses?
If the Government really wants to make sensible cuts in expenditure, it could scrap the Duty Solicitor Call Centre and CDS Direct, who channel all the requests for legal assistance in police stations to individual solicitors. Far too much time, and presumably money, is wasted in phone calls. It was far simpler and cost effective when the police had all their local solicitors' home numbers and simply called them direct. The call centres are far too inefficient for their employees to be relied on to give evidence if there were ever a dispute, and it wastes the time of the police having to phone the call centre and then wait around for a solicitor to phone back while the call centre call the wrong number and sometimes the wrong solicitor altogether. (I have had numerous bizarre calls over the years but it is beyond the scope of this article to go into details. Suffice it to say that criminal practitioners all have farcical stories to tell.)
They could pay two tiers of fee for police station work: one where there was an attendance and another where it was all sorted out over the telephone. Before the Legal Aid Board (now the Legal Services Commission) started its control freakery we were able to decide whether an attendance was needed. Often, when someone tells you that yes, he went into ASDA or Waitrose, nicked a bottle of whisky and hid it under his jacket and was caught, and when it is the umpteenth time he has been interviewed by police, his situation is not going to be improved by a solicitor attending. Let us, as experienced solicitors, decide whether an attendance is required and the costs will go down.
Interestingly the EU is trying to introduce a directive giving detainees a right to a lawyer while in custody. Our government is opposing this move. So obsessed are they with cutting costs that they are not considering where the cuts should sensibly be made.
Cut the bureaucracy and with it costs, leave small practitioners alone and let the market decide who should be in practice, with the market being dependent on the right of detainees to choose who they wish to instruct. Those who are known in their localities to be incompetent will find themselves without clients and will have to find something else to do. Remember why solicitors were introduced into police stations in the first place, and keep faith with the legacy of Mrs Thatcher.
Jan Davies has been practising as a solicitor in the criminal courts for over 20 years. She was a founder member of Reading Solicitors Chambers and between 2001 and March 2007 was a senior crown prosecutor in Oxfordshire. She now practises as an advocate in both magistrates and crown courts as an associate member of Reading Solicitors Chambers. She is the author of The Criminal Advocate's Survival Guide (Carbolic Smokeball Company, 2007).
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Prison works - or rather it works better than the alternatives, argues Theodore Dalrymple
Theodore Dalrymple explains why he is not a Marxist - and why Kenneth Clarke is wrong about prisons.
Mr Clarke was quite right to say that short prison sentences are not effective but, with the practised lack of logic of a man who has spent far too long in politics for the good of his own mind, he has drawn precisely the wrong conclusions from it. His error will cause much unnecessary suffering.
There are indeed many arguments against short sentences. The recidivism rate after such sentences are completed is very high. They pose large administrative costs on the prison system. They do not reassure victims that the suffering or loss inflicted upon them by criminals has been taken seriously by the state. They discourage and demoralise the police, who labour mightily, if mainly bureaucratically, to procure a conviction for very little result. They promote intimidation of witnesses.
Remember, I'll been walking the same streets as you in six weeks' timehas deterred many a crucial witness (criminals having absolutely no doubt about the value or effectiveness of deterrence).
In the sub-culture from which many criminals live, they are a badge of honour rather than a mark of shame. And if rehabilitation were one of the aims of prison - personally, I think it is a very minor one - short sentences would do nothing to contribute to that aim.
But it is quite wrong to suppose that if something is not very effective it has no effect at all. Short prison sentences are ineffective by comparison with long ones, but that is not to say that they are ineffective by comparison with no prison sentences at all.
It is a fact that a large proportion of crimes are committed by a relatively small number of people. It is not unusual for career criminals to commit a hundred or more offences a year. Therefore, keeping them in prison for six weeks, say, prevents the commission of 12 crimes. Of course, if they were kept in prison for four years, 400 crimes would be prevented. But it is better to prevent 12 crimes than no crimes at all.
The only possible argument against the logical response to a high recidivism rate after short sentences being a lengthening of sentences is that something more effective than imprisonment exists: but it doesn't. Community sentences (except if used very selectively indeed) are quite useless.
Let us examine the ways in which our grossly dishonest official class, of which Mr Clarke is perhaps a victim, has sought to persuade us otherwise. Success is often measured by the percentage of "completion" of a community order, for example of probation. But from the law-abiding public's point of view this is irrelevant.
What is important is how many crimes people on a community order commit while they are on it or soon afterwards. And the fact is that the recidivism rate, as measured by the re-conviction rate, is very nearly as high as that of imprisonment after short sentences, despite the fact that the latter are probably slightly worse to begin with, which is why they were sent to prison. (Almost all prisoners are graduates of community sentences.)
It is easy to show that huge numbers of crimes are committed by people already on bail or serving community sentences: so many, in fact, that they represent a considerable proportion of all recorded crimes. There are about 150,000 people on probation at any one time. At least 50,000 of them a year, and probably more, are re-convicted. Furthermore, the reconviction rate used in measuring outcome does not measure re-re-convictions, that is to say those who are convicted more than once, of whom there are many.
Now the conviction rate for all recorded crime in Britain is a shade over one in twenty. If the criminals on bail or serving community sentences are typical of criminals as a whole (there might be some criminals who never get caught and some who always get caught, but assuming a normal distribution, most will fall somewhere between these two extremes), then at least 1,000,000 and probably more than 2,000,000 crimes are committed annually by people on bail or serving community sentences. Thus at least 20-40 per cent of recorded crime is committed by people serving the kind of community sentences that Mr Clarke wishes to extend.
If we add in the numbers of crimes committed by people who have just served short prison sentences were added to this, we can see that it is highly likely that, if long prison sentences were imposed upon criminals as a matter of course (bearing in mind the need to take account of exceptions, extenuating circumstances and so forth), it is likely that the recorded crime rate would decline by more than fifty per cent, irrespective of any deterrent effect such a policy would exert. In reality, the effect would be even greater.
Why does something so obvious escape our political and official class? The late Lord Bauer wrote:
When nonsense shows systematic bias, it probably reflects the pursuit of unacknowledged objectives which often have political or emotional bases.It is so in this case.
Those who argue against imprisoning criminals think they are being kind to those poorer than they because most criminals are poorer than they. What they forget is that most of the victims are also poorer than they, and furthermore that the class of victim is much larger than the class of perpetrator (if it were not, poverty would be in itself a marker of criminality, which it is not).
So those who argue for the non-incapacitation of criminals are arguing for victimisation of the poor, whether they intend so to argue or not. Of course, it might be possible to argue that what Mr Clarke is trying to do is to ensure that the costs of crime remain where they arise, ie among the poor, and not transfer them to the middle classes.
An unfortunate effect of this is that it de-legitimises the state, one of whose indisputable tasks is to keep the peace. A state that wilfully fails to do so for a large section of its population can hardly be regarded as legitimate: a reason, perhaps, why so many people do not vote.
If I were a Marxist, I might add as another possible explanation the need of lawyers for clients and criminologists for subject matter. The class of lawyers and academic criminologists has increased greatly in the last few decades, and crime is one way of ensuring them employment (under- or unemployed lawyers and academics are very dangerous). The last thing, therefore, that lawyers and criminologists as a class would want is a decrease in crime.
But I am not a Marxist.
Theodore Dalrymple is a writer and worked for many years as an inner city and prison doctor.
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Bemoaning England (Again!) - Lincoln Allison argues that England will only start winning at football if we start fielding middle class players
Lincoln Allison, Emeritus Reader in Politics at the University of Warwick and Visiting Professor of Sport and Leisure at the University of Brighton, argues that England keeps losing at football because the team is exclusively made up of uneducated, working class oiks - and uneducated, working class oiks cannot win the modern game.
For many years my paradigm example of the follies and fantasies of trying to explain human behaviour has been a football match played on 17 October 1973. England 1 Poland 1 and England ? champions in 1966, favourites in 1970 ? out of the 1974 World Cup. A simple account of the game might have it that England were jolly unlucky because they attacked for most of the game, made a lot of chances, hit the post and the bar and found the Polish goalkeeper, Jan Tomaszewski, in the form of his life. Another dimension of bad luck was that this turned out to be the finest team in the history of Polish football; it went on to beat Brazil and to finish third in the competition.
But the simple account apparently satisfied nobody. So far as all pundits and commentators were concerned England's defeat had to symbolise a broader phenomenon of national decline. It was an example of the general stifling of talent and initiative. Or its roots were in the demise of community and therefore the congested street football which had created the skilled players of the past. It was a consequence of the mass passive culture created by television. Or it was the fault of years of inadequate educational policy. And so on.
Meanwhile, of course, if Mr Tomaszewski had had the decency to make one simple error the need for competing explanations would have been obviated and the inquests would have been replaced by enthusiastic prognostications of our chances in the forthcoming tournament. The fundamental thing to understand about explanations of human behaviour is that they are only required when our expectations are confounded. And it is equally crucial to understand that what we are normally offered are not explanations at all in any logical sense, but opportunistic expressions of ideology and vested interest.
So now, here we go again. England's "golden generation" of footballers crash out of the 2010 World Cup to Germany in the round of sixteen ( a whole round earlier than usual) and they are corrupted by money, the victims of globalisation, symptoms of social collapse or a culture which (still) discourages flair and initiative. Etc! Whatever! My greatest contempt is reserved for Boris Johnson and Dave Whelan.
The Mayor of London, who I think is a likeable fellow and with whom I often agree, trotted out the old nonsense in the Daily Telegraph about the lack of competitive sport in schools because of leftist ideology. I can assure him (and I'm quoting my own research, not anybody else's) that the impact of this was fairly minimal compared with that of the Thatcher government's stipulation of hours of work for teachers and its encouragement of the sale of playing fields.
Also, it is important to note that the sport which has suffered a near-terminal decline in state schools is cricket, yet England have arguably the most successful cricket squad in the world which currently holds, inter alia, the world 20 over championship and the Ashes. The simple fact is that most state schools do play football, but they don't play cricket. So if success in elite international sport had much to do with what went on in state schools it really ought to be the other way round.
But Dave Whelan, interviewed on Radio 5, reached an even higher level of illogicality. The problem was the Football Association, he said, and it would all be much better if the Premier League ran the England team. The first part sounds plausible, the second is ludicrous.
The FA may not actually be up to much, but surely football must be run by some organisation which looks like the FA and which acknowledges that there are 45,000 football clubs in the country, not twenty. It must not under any circumstances be run by a set of institutions whose purpose is the aggrandisement of their owners, most of whom come from abroad, which are not much interested in many cases even in the employment of English players.
Whelan himself is a purveyor of tat, the founder of JJB Sports and the owner of Wigan Athletic. One could argue that his comments are part of a considerable history of class war within the middle classes: yet again the "down to earth" businessman, who knows how the "real world" works, condemning the gentlemanly, amateurish, out-of-touch, haven't-got-a-clue chaps in blazers. They thus have a certain historical curiosity, but neither the logic of the argument nor the historical record of tat-sellers in important positions can be taken seriously.
The England team weren't very good. As an old geezer who has been watching professional football since 1953 I can assure more recent arrivals that only two or three of the current squad would have got into Alf Ramsey's winning team (which wasn't outstandingly talented) and that many of the 1966 reserves - such as Ron Springett, Brian Labone, Jimmy Greaves and John Connelly - would have walked into the current team. The USA had at least four goalkeepers whom England would have picked if they were eligible.
Of course, you don't have to have the best players to win. It can be done with tactics, application and team spirit and my favourite football fact is that when Greece won the European football championship in 2004 one of those who picked up a winners' medal was a Burnley reserve, Dimi Papadopoulos. But if you're not massively talented and not particularly well organised then you can't really expect very much. One might even argue that England did quite well under the circumstances since they outlasted the greater talents of France and Italy who were, admittedly, to differing degrees fractious and decrepit.
So what does need some explanation is the mass delusion that England were serious prospects. The fact is that English football is the object of slavish, massive hype. When I say English football here I mean the Premier League and the England team and though they are logically separate they are conflated. Journalists and pundits in sport are - unlike those in any other field - uncritical purveyors of the faith until they are let down when they squeal with pain and anguish. If you wanted a single example of this the best would be the BBC pundits covering the England-Slovenia game. The reality was that we were watching a poor and timid team struggling to a 1-0 win over an even poorer and more timid team, but suddenly it was time for protestations that the corner had been turned, brilliance was on show, the real England had finally turned up and so on. Emperor's clothes or what?
If the answer is that they were not very good it is as well to specify what they were not very good at: tactics, strategy, the ability to understand the opposition, the capacity to adapt to new situations and environments and unfamiliar problems. At this point we must bring up the obvious and important - though highly embarrassing - fact about English footballers which is that they are uneducated men of largely lower class origin whom one would not expect to be very good at these things. They have the virtues of the poor bloody infantry which are courage, stamina, hard work and physical fitness, all of which are of diminishing value.
England rugby and cricket teams have a fair smattering of members educated to think, which is why they have been able to adapt to changing problems and win world championships. So do most international football teams. But English football is best symbolised by Wayne Rooney. I suppose Rooney must be a very good footballer; his achievements are considerable. But he isn't when I've watched him. I saw him at Burnley last year achieving absolutely nothing even though he was playing against a team whose combined wages did not equal his own (and we won 1-0 which was enough to prevent Manchester United from winning the championship). And his face in the World Cup told the whole story: baffled, frustrated and angry, he never looked like a man who understood what was going on.
Before the World Cup started my youngest son, a keen footballer, announced that he was no longer supporting the England team because, "they are a bunch of arseholes". He pursued his argument by saying that there wasn't a single member of the England football squad with whom he would choose to spend an evening in preference to even the most boring member of the cricket squad. ("Yes, but they're our arseholes", protested his eldest brother.) It is not just that they are boring, dim and inarticulate; the majority of them have been involved in at least one incident which suggests that they have a sense of self-importance way above the justifiable level. They believe the hype, which is their greatest weakness. It follows that the only route to success and the ending of what will soon be fifty years of pain is the shifting of the social basis of English football. Since this is nigh on impossible I can only suggest to disgruntled England fans that they lower their expectations and take more interest in other sports.
Lincoln Allison is Emeritus Reader in Politics at the University of Warwick and Visiting Professor of Sport and Leisure at the University of Brighton. His two most recent books are The Global Politics of Sport and The Disrespect Agenda: How the Wrong Kind of Niceness is Making us Weak and Unhappy. He is also the author of Amateurism in Sport.
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