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Lessons from the slow-motion collapse of the criminal justice system
There are two dominant narratives about crime in the press at the moment:
A) That the police have given up on all but the most serious lawbreaking, with the percentage of crimes leading to charges falling from 17% to 6% since 2015.
B) That our prisons are beyond full, with high levels of overcrowding, poor conditions, and the problem only getting worse.
Both are true (with some caveats), yet at first glance they seem contradictory. If far fewer people are being charged with crimes, how come we have more prisoners than ever and the justice system is struggling so badly?
The very short answer is that the average prison sentence has increased dramatically – by 55% in the last decade from 14.5 months in 2012, to 22.6 months in 2022. For the most serious crimes the average sentence is two years longer now than it was in 2008. This means less space even as the number of charges, and convictions, has fallen.
Why this has happened is worth exploring in more detail because it highlights why criminal justice is such a fraught policy area, and why it will continue to be for the next government. It also illustrates a broader point about how the widening social divide is breaking our traditional model of public services.
Is crime going up or down?
We measure crime in two main ways: how many do the public say they have experienced (according to a representative survey) and how many do the police record. On the former measure crime has been falling for decades – down well over half since the mid-90s – and is still falling. On the latter there’s been 26% increase in crime between 2018 and 2022.
This is how you get headlines claiming that crime is at an all-time high while, at the same time, the numbers of people saying crime is one of the most important issues facing the country is at its lowest ever level in MORI’s “issue index”.
The discrepancy is largely due to the police recording a lot more incidents than in the past rather than a real increase in crime. On the whole experts prefer the crime survey as a (mostly) comparable measure of crime over time. Here we can see some fairly clear ongoing trends with physical theft like burglaries falling hugely from its mid-90s peak and online crime increasing with the rise of internet-enabled devices.
Overall, violent crime has also fallen but within that there are some countervailing trends. This is where it gets really hard to tell exactly what’s going on because the more serious the crime, the less often is happens, and the less accurately it will be recorded in a survey. But an increase in police recording still doesn’t necessarily indicate an increase in real crime. For instance there has been a 350% increase in recorded rapes since 2010 but it’s not possible to know how much of that is due to better reporting; or a greater willingness to come forward; or an increase in victims.
It does seem likely that for some of the most violent and serious types of crime there has been a real increase in the last few years. The number of homicides, knife, and firearms crimes, all grew from the mid-2010s up to the pandemic. As these crimes were always more likely to be recorded it seems probable there was real growth and that it was linked to structural changes in the drugs market e.g. an increase in crack use.
(NB: as ever when you start digging into datasets there turns out to be all sorts of issues with methodologies and collection. I’ll spare you the details but if you’re interested this piece, by Gavin Hales, is a taster.)
Why has charging dropped so much?
Understanding the crime figures helps explain why we need to be careful not to over-interpret the figures showing a huge drop in the percentage of crimes charged.
It is – to some extent – an artifact of the higher recording rate. Things were worse than they looked in the past because more crimes were being ignored altogether. The actual number of people charged with crimes has fallen a lot less than it would appear by just looking at the percentage. Though it is still falling.
It also explains why there has also been a drop-off in police activity around more “minor” crimes because violent and sexual offences now represent a bigger proportion of the whole, and so are taking up more of the available time. For instance domestic abuse cases alone now account for almost a fifth of police time. And more complex crimes involving drugs gangs tend to involve a lot more technology which increases the resources required to solve cases.
That doesn’t mean there isn’t a real problem here. We have reached the point where many forces are not charging anyone at all for some minor offences like bicycle theft or attempted burglary, and, even though it’s not leading to an increase in crime (yet), it does have other negative effects. First in contributes to the reduction in public support for police – which is also connected to higher profile failings, such as the Sarah Everard case. Net belief that the police “do a good job” fell from +45% in June 2019 to zero in March this year, before recovering slightly. It also leads to people who are engaged in criminal activity being more likely to reoffend given the complete lack of deterrence.
The government, as is their tendency on many issues, have responded with much rhetoric about “getting tough” and “crackdowns” on low level criminality but little meaningful action. The problems with policing will be sadly familiar to anyone whose read my pieces on the NHS or schools:
1. Police officer numbers were cut from 144,000 to 122,000 during the austerity years only to be gradually restored back (almost) to their original number from 2017 onwards (after Labour had gained traction during the election that year by criticising police cuts). But this reversal led to a lot of churn, including the loss of long-serving staff. There is, as in the health service, a serious experience problem, with nowhere near enough detectives, and no one available to train up more junior staff to fill gaps in the future. By next year 38 percent of all police officers will have fewer than five years’ service. And, as in the NHS, “efficiency savings” to get “more money to the frontline” have ended up with the frontline doing a lot more admin, making the job less attractive for more senior staff.
2. There has been a lack of investment in infrastructure and technology – which is a big problem given that an increasingly large proportion of crime is online. To take just one example, the Police National Computer – which is essential for the functioning of the entire system – is 50 years old next year.
3. Like schools and A&E departments, the police have ended up dealing with the consequences of cuts to other less high-profile public services. The Chief Inspector of Constabulary has been explicit on this point: “In blunt terms, too much police time is still being spent performing the work of other public services. This is because many public services are under financial pressure and can’t meet their own demand.” To take one example between 2019 and 2022 there was a 20% increase in the number of mental health incidents police had to deal with. This has led the Met to threaten to stop attending mental health emergencies - which will lead to all sorts of knock on problems for the health service. And so on.
4. The Crown Prosecution Service, which makes the final decision on who will be charged, is its own non-ministerial department, overseen by the Attorney General. It received one of the biggest cuts of the austerity era – 33% between 2010 and 2020 – and cut staff accordingly. With both the CPS and police in more constrained circumstances, tensions between them have ended up going public. A few months ago three serving Chief Constables wrote an op-ed demanding the power to charge directly in more cases as “the austerity-hit CPS can’t cope and people aren’t getting justice.” Then the Met Commissioner publicly accused the CPS of “cherry-picking” cases to keep their conviction rate high. Which led to an equally public and very sniffy response from the current Director of Public Prosecutions, Max Hill. For their part the CPS are unhappy with what they see as the worsening quality of the files they get from the police. It’s a mess and the government seem quite content to sit back and let them squabble rather than sort it out.
This is without getting into the question of how our 43 police forces are structured and how they are overseen and managed. As this post is already too long, this will have to wait for another day, but all we need to note for now is that if the government really wanted to drive up the number of charges following from offences they could, but it would require, as ever, serious investment and reform rather than reheated gimmicks dreamed up by a media SPAD.
Why are prisons so full?
Now it’s time to jump over and look at the bits of the system managed by the Ministry for Justice. I’m afraid it doesn’t get any better. The MoJ took one of the biggest austerity hits, with 25% cut from its budget between 2010 and 2019. As with the Home Office this has been partially restored since, due to the carnage it was causing, but not enough to repair the damage.
Courts are struggling to process cases, even though fewer charges are being made. Before the pandemic the backlog of Crown Court cases had already gone past 40,000. With the further delays caused by covid it’s now over 60,000, but that understates the problem as many of the most delayed are jury trials which are complex and take longer. The Institute for Government produces a “complexity-adjusted” figure which has the backlog up at 90,000. As of last September, 28% of cases had been waiting more than a year, up from 5% in 2014, and that’s only going to get worse. Apart from being unfair on defendants - increasing numbers have already served the maximum sentence for the crime of which they have been accused before making it to court - it also means victims have to wait far longer for their day in court. In some cases, especially around sexual offences, they often decide to withdraw from the case. It also makes conviction harder as witnesses have to remember events for longer.
The government is struggling to make any dent in the backlog because they can’t hire enough new judges. It doesn’t pay enough to attract barristers who are focused on civil work, and there are fewer criminal barristers. This is because extensive cuts to legal aid have made doing publicly fund criminal work far less remunerative. According to the Criminal Bar Association criminal barristers have seen a 28% drop in income in the last few decades and specialist criminal barristers in their first 3 years of practice earn a median income of just £12,200.
Which is why then went on strike last year, eventually forcing the government into fully adopting a 15% increase in legal aid fees. This isn’t going to be enough, though, to resolve the backlog. As with the police force it’s another example of how hard it is to repair damage done by overly severe spending cuts. Even if you put the money back in, a vast amount of experience and goodwill has been lost.
But if the courts’ backlog were somehow resolved it would put the prison system in even more trouble. As of this week there are 86,763 people in prison and an operation capacity of 87,710. So fewer than 1,000 free spots. This is already allowing for overcrowding in many jails – 62% had some prisoners in crowded conditions last year (usually two prisoners in a cell designed for one). If we didn’t allow overcrowding then we’d already have a shortfall of around 10k places.
Even with this permitted level of crowding the system is essentially out of space. And it would already be over the limit had it not been for the courts running slow because of the pandemic and barrister strikes. The 2021 prison projections from the MOJ assumed we’d have 89k prisoners by now, a number that only wasn’t met because “volumes of court receipts in 2021 and 2022 were below the levels assumed for the 2021 projection”.
The latest MOJ figures have a central projection of around 100k prisoners by 2027, well above current capacity. The higher band projection is 106k and even that assumes that the police will not charge any more people, per officer, than they were in 2019. There is absolutely no way the system will have this level of capacity by 2027. We know this because it takes a long time to build a prison and only one new one is currently being built. The government is proposing to add a further 13,000 spaces by 2027 but 5,000 of these are dependent on three new prisons that have not yet got planning permission. All are being locally disputed, in at least once case because of the presence of badgers.
This means, at best, we will have a capacity of around 95k by 2027. That assumes all the other rebuilding is done on time, which has, as far as I can tell, never happened before. And no prison closures – which are badly needed in some cases as many Victorian era prisons are in a terrible state of disrepair and extremely unsafe.
So we have a central capacity projection of 100k prisoners and a best case scenario of 95K spaces, and that’s based on current charging levels and assuming the courts backlog is not rapidly cleared. And even if, in the longer-term, money was found to build more prisons it’s not clear who would run them.
There are already major staff shortages across the system, with record levels of turnover amongst officers. Many prisons have been unable to return to pre-covid levels of activity for inmates due to staff shortages, with some prisoners still locked up for 22 hours a day, unable to work or undertake educational activities that would help with rehabilitation. In response the MOJ are pushing younger staff into prisons faster, with less training, which exacerbates the problem. Almost 30% of officers have been in place less than three years, more than double 2010 levels. Half of officers say they don’t feel safe and 80% say morale is low. Finding staff for tens of thousands more prisoners seems a stretch.
There are several things that could be done to alleviate the situation. First, we could stop putting people in prison for short sentences, which absolutely do not work to reduce crime, and give them community sentences instead. This represents less than 10k of all prisoners but reducing the number would create vital space and community sentences would probably be of more value. Unfortunately Chris Grayling’s utterly disastrous attempts to privatise the probation service have led to a sharp reduction in community sentences (a 46% drop between 2010 and 2020). I don’t have the space here to catalogue quite how much of an appalling and costly screw-up this was, but if you want all the gory details Ian Dunt does a great job of telling the story in the opening chapter of his recent book. The privatisation has now been reversed but it will take years for the system to properly recover.
If and when we can make greater use of community sentences there isn’t much evidence that politicians want to do so, for fear of looking weak on crime. Indeed the government recently briefed that they want to imprison shoplifters, which would, no doubt have public support, but would only make the prison problem worse.
Similarly the other option would be to reduce average sentencing, which, as we saw at the start of this post, has shot up in recent years. Again, this is at least in part due to government insisting on more aggressive minimum sentences because they want to sound tough, as well as an increase in convictions for more serious crimes. They have continued doing this in recent years despite the lack of prison space. The 2022 Police, Crime, Sentencing and Courts Act requires many prisoners to be held in custody longer. Both main parties continue to propose ever longer sentences, in line with public demand. Unfortunately for the government, despite all their efforts to drive sentences up only 8% of the public actually think they’ve got longer. So they’re not even getting any political benefit.
The policy conflict
Add all this together and we can see that the criminal justice system is stuck in a precarious balance of incompetence. If the police increase the number of people charged, which is necessary to restore public confidence and deter repeat re-offenders, then that will overwhelm a court system that already has a massive backlog, and a prison system that already doesn’t have enough places. Likewise significantly reducing the existing court backlog, which would increase convictions and give certainty to victims, would overwhelm the prison system.
Which means the next year of debate about crime in the run up to the election is going to bear no relationship at all to reality. Both parties will continue to emphasise “toughness”. Yvette Cooper wrote an op-ed this week demanding higher rates of charging. But no one will acknowledge that there is simply no space left in the prison system to allow for any of these policies in the short to medium term. Nor is there any prospect of building enough space in time to make it so, or any money being pledged to build more. If charging rates do go up, or if the backlog is cleared faster, then whoever is Justice Secretary will have no choice but to let out an arbitrary selection of prisoners on early release, causing inevitable public outcry and bad headlines. If one was cynical one might think the current government’s strategy is just to hope it ends up being a Labour politician that has to do this.
Meanwhile debate about whether an ever-rising prison population is a good and useful thing will be avoided at all costs. It needn’t be. While traditional left/liberal framing around mistreatment of prisoners is never likely to garner popular support there is a public safety argument to be made. Good, well-run prisons, that offer quality work and education experiences can bring crime down, but dilapidated, understaffed prisons, with huge drug problems and no meaningful rehabilitation offer are breeding grounds for more hardened criminals. 82% of people sent to prison for less than 6 months for theft offences are convicted again within a year of release. These problems are fixable - Norway, for instance, massively reduced its reoffending rate from 70% in the 1990s to 20% now - the lowest in the world - but it would require a complete reframing of the debate and a lot more political honesty.
In this sorry mess there is a bigger lesson about public policy failure and austerity over the last 13 years.
The waves of cuts that were made between 2010 and 2016 were very deliberately targeted at the most vulnerable. The NHS and schools were “protected”, as were pensions. That meant that welfare benefits, local government, and departments like the MOJ, took most of the hit. The most vulnerable in society were made poorer. Services like children’s social care, the courts system, and local family support schemes, which were predominantly used by that group were cut back. This was, initially, a successful political strategy as it meant Tory voters were protected from austerity.
But over time that loss of acute services, and the increase in deep poverty, has put pressure on universal services like schools, hospitals and the police. We have for instance seen a big increase in mental health problems affecting the lowest income deciles, and as I’ve shown above, one reason fewer crimes are leading to charges is that the police are spending a lot more time dealing with mental health issues (it’s also the reason the cost of disability benefit has gone up so much).
We’ve also seen increases in domestic and child abuse cases. The police now spend 20% of their time on domestic abuse, schools have got sucked into more and more safeguarding issues; and it’s created additional work for A&E departments. The growing number of families living in destitution has left schools having to run foodbanks; and increased the number of sick adults who have left the labour market.
Thus universal services, upon which the wider public rely, have come under more and more pressure, even as their budgets are, relatively speaking, protected, because they have to deal with the fallout. This has caused political problems for the government, with austerity becoming a lot less popular.
It is, though, extremely hard to recover from this situation. The services that the most vulnerable depend on can’t be rebuilt overnight, even where the government is putting some cash back into the system (as with the courts and legal aid). Benefits remain way below 2010 levels with no prospect of improvement any time soon. There have, of course, always been wide gaps between the rich and poor in Britain, it’s not a phenomenon that started in 2010. But it has been made worse. A larger chunk of the population has been disconnected from the rest of us. And we will all bear the cost of that for many years to come.
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