CAIN Web Service

THE
CRIMINAL JUSTICE REVIEW
A RESPONSE

Democratic Dialogue is an independent think tank based in Northern Ireland. It was set up in 1995 to encourage fresh political thinking, broaden participation, and to work in partnership with a wide spectrum of organisations in problem-solving. Democratic Dialogue has developed an inter-disciplinary, inter-sectoral, cross-departmental approach to injecting new thinking into Northern Ireland’s public and policy debates. Amongst current projects DD has organised a conference to consider the possible content of the First Programme for Government of the Northern Ireland Executive Committee; it is engaged in a research project examining the first year of the Equality Commission; it has organised a round-table to consider future policies for victims and survivors of ‘the troubles’ and it is a partnership organisation in a wide-ranging project examining the impact of devolution within the jurisdictions of Northern Ireland, Scotland and Wales.

With this remit in mind a number of individuals, under the auspices of Democratic Dialogue, came together to discuss the possibility of preparing a submission to the Criminal Justice Review. Understandably, most of the discussion about the reform of the criminal justice system has been from a legal perspective. DD wished to encourage a wider debate. At a seminar organised to discuss the recommendations of the Review it was decided that it would be valuable, in the short time available, to make a submission which would do two things. First, to raise some fundamental questions about the model of social order and social control that should be developed in a post-conflict situation. Second, to examine the recommendations of the review in four specific areas which DD considers are crucial for the development of criminal justice as well as social justice in Northern Ireland: Monitoring, Restorative Justice, Probation and Juvenile Justice.

Professor Paddy Hillyard
Professor of Social Administration and Policy
University of Ulster at Jordanstown

Mr Mike Tomlinson
School of Sociology and Social Policy
Queen's University of Belfast

Dr Kieran McEvoy
Assistant Director
Institute of Criminology and Criminal Justice
Queen’s University of Belfast

Mr Brian Gormally
Consultant.
Former Assistant Director of the Northern Ireland Association for the Care and Resettlement of Offenders.

Ms Breidge Gadd
Former Chief Probation Officer of the Probation Board for Northern Ireland.
Visiting Professor of Community and Criminal Justice Studies at the University of Ulster.

Submission coordinated by:

Dr Margaret Ward
Assistant Director
Democratic Dialogue

The purpose of this paper is to consider the Criminal Justice Review (CJR) from a social policy rather than a purely legal or socio-legal perspective. To this end it raises a number of broader issues in order to stimulate a wider debate about the CJR. It attempts to widen the debate and the current peace process provides an opportunity to think imaginatively about taken for granted ways of doing things. It is in this spirit that this contribution is written.

The CJR was established under the Belfast Agreement to provide a ‘wide-ranging review of criminal justice.’ The Agreement then listed a number of specific aims. These are:

The terms of reference given to the Review were therefore very wide and provided ample space for an in depth and independent analysis of the purposes, philosophy and politics of a modern criminal justice system. There was a very real opportunity to think through what type of criminal justice system Northern Ireland required after thirty years of conflict. In particular, was it appropriate to make minor alternations or was a radically different approach to dealing with anti-social and harmful behaviour required? It choose the tinker with the current system with the very real possibility that the Northern Ireland system will follow criminal justice systems around the world and incarcerate more and more people and our relatively empty jails will be full again. The types of offender will, no doubt, be described differently and called ordinary decent criminals in contrast to political prisoners, but they will be drawn mostly from the same social class. They will require the same highly costly and massive control apparatus.

The fundamental question is whether or not there is some other and more effective way of dealing with events and incidents defined as criminal? Criminalisation and punishment in all its forms throughout the world has been shown to be ineffective in dealing with the harm that is caused by a range of different events and incidents. Social policies, however, have produced significant reduction in the amount of harm caused. Regrettably, the CJR failed to explore these broader issues and develop a new and radical vision of how to deal with anti-social and harmful behaviour in the twentieth century.

In this paper I wish to develop five broad criticisms of the CJR: it takes the notion of ‘crime’ and ‘the fear of crime’ as given; it fails to place ‘crime’ alongside other forms of harm; it fails to provide any data on the outcomes of criminal justice systems around the world; it fails to locate the criminal systems as one part of an ever-increasing crime control industry; and it fails to present any analysis whatsoever of the current costs of the criminal justice system, yet it makes a number of recommendations which will cost more money.

The CJR takes the notion of crime as given. It makes no attempt to deconstruct the concept and reveal its highly problematic nature. There is a considerable volume of scholarly criminological work that which points out the unscientific nature of the concept (see for example: (Tappan 1947), (Muncie 1996)). Crime, as has been pointed out by numerous criminologists, has no ontological reality (Hulsman 1986). There are no intrinsic characteristics of any act which provides a means of defining it as criminal. ‘Crime is created’ in Christie’s words. This is not some academic point; it lies at the heart of the way society reacts to events which are considered harmful. Everyone in Northern Ireland, after the horrors of thirty years, has a choice of either to define more and more acts as criminal and hence deal with them through the criminal justice process or to define fewer acts and events in this way and think of other and more progressive ways of dealing with harm.

The CJR’s uncritical acceptance of the notion of crime is reflected throughout the report but principally in chapter 2 which ‘summarises information on the extent of crime in Northern Ireland both as recorded and perceived by members of the public’. It then points out that 23% of households experienced at least one crime during 1997 compared with 34% of households in England and Wales. It further points out that when crimes recorded by the police are examined, there are 6458 per 100,000 of the population in Northern Ireland and 9785 per 100,000 of the population in England and Wales (para. 2.7). But what do these figures mean? They are given an objectivity and a status. There is no attempt to deconstruct the statistics and reveal their problematic nature. A recent Home Office study (Burrows et al. 2000) examined the policies and practices of different police forces in recording crime. It found that the processes by which crimes are recorded vary substantially and that the likelihood of any allegation being recorded as a crime varied considerably according to the alleged offence. The CJR points out that the ‘figures they quote must be interpreted with a degree of caution’ (para 2.9). Yet the very next sentence notes ‘on the basis of available research and anecdotal evidence, we have little doubt that there was a significant rise in recorded crime last year. We regard this as important… in the light of suggestions made … that the end of civil strife in Northern Ireland might be associated with an increase in ordinary crime’(italics added) (para. 2.9).

This is simply nonsense. The CJR slips from talking about ‘recorded crime’, which is a list of events and incidents that the police define as crime to ‘ordinary crime’. No one would disagree that ‘recorded crime’ did increase between 1997/98 and 1998/99. This is because the Home Office (1999) changed the rules for recording ‘crime’, as the report notes. These widened the coverage to include a range of offences which had not been previously recorded. This resulted in, for example, offences against the person increasing by 179% and criminal damage by 182%. It is, however, wrong to assume from these and other increases that ‘ordinary crime’ has increased.

The chapter then proceeds to ask the question ‘where does crime occur?’ and points out that NISRA in the Northern Ireland Office are ‘developing a model for mapping crime in Northern Ireland’ (para 2.12). It then presents two maps showing ‘recorded crime indices’, which are not defined, for both Northern Ireland and Greater Belfast. There is no attempt by the CJR to look critically at this exercise. Four criticisms can be made of it. First, it is problematic to map a notion which is so fluid and ill-defined. Maps of any data need to be deconstructed and placed in context. Second, as certain types of acts and incidents are more likely to be defined as crimes and recorded than others, the mapping will reflect these biases. Third, the very existence of a map will have social consequences particularly if the development leads to more detailed crime maps, as in the USA, where it is now possible to obtain information on the number of ‘crimes’ committed in a particular street. These will lead to the further social exclusion of particular areas. Fourth, and most important, there is no attempt to map ‘crime’ against other social harms. As a result, this form of mapping will further exacerbate people’s fear of crime.

The CJR discusses the issue under a sub-heading entitled ‘Worry about Crime’. It notes the findings of Northern Ireland Crime Survey, which are written up in a report entitled ‘Fear of Crime and Victimisation in Northern Ireland’ (para 2.14). There are a number of fundamental methodological difficulties with this type of research. Not least that if a person is asked if they have been a victim of a crime and then they are asked if they have a fear of crime, then it is not perhaps surprising that they answer in the affirmative. In addition, the phrase is extremely vague, like the concept of crime itself, and therefore it is not at all clear what is being measured (see: Walklate 1998).

The CJR makes no attempt to examine the harm arising from events and incidents which are defined as ‘crime’ in context of all harms people are likely to experience. The vast majority of events defined as ‘crime’ are very minor and do not score, as Hulsman (1986) has eloquently put it, ‘particularly highly on a scale of personal hardship’. At the same time, there are numerous other harmful events which could be prosecuted, but never get defined as ‘crime’ for one reason or other. The most obvious example are the deliberate acts of omission or commission, defined in the criminal law, carried out by those in corporate positions see (Slapper and Tombs 1999). Moreover, there are numerous other harmful events that are not embraced by the criminal law at all. For example, many road ‘accidents’ which cause death and injuries, the ‘miss-selling’ of pensions, deaths and injuries at work, iatrogenesis (medically induced harm), the inability to obtain paid employment or loss of a job, are all significant events which create human trauma and have long lasting consequences. To consider ‘crime’ separately from other harmful events presents a totally distorted view of the impact of one type of harmful activity.

Part of the problem arises from the attention that is given to the recording and documentation of ‘crimes’. No other area of social life is subject to so much data collection and annual publication. Every year considerable resources go into recording, collating, checking and publishing extensive details on the ‘crimes known’ to the police. For example, we can easily ascertain a whole range of information about the taking away, or the damage to, property. As we have seen, we can now find out how many ‘crimes’ of criminal damage, however small, were recorded by the police. As these police statistics under-record the extent of ‘crime’, since 1982 there have been bi-annual surveys in England and Wales and less frequent sweeps in Northern Ireland to ascertain who has been the victim of a crime. The methodologies used in both data collection exercises are subject to considerable scrutiny. The Home Office (Burrows et al. 2000) recent study and subsequent 95 page report of the review of crime recording practices is illustrative of the concern with counting and recording.

This concern and attention to crime contrasts starkly with other areas of social harm. In Northern Ireland and in Great Britain there is still no annual audit on perhaps the most fundamental feature of any society — the number of people, and particularly children, growing up in poverty. Nor do we have any statistics on the number of people who enter hospital for some operation but have the wrong organ or limb removed. This type of harm is estimated to amount to 3 or 4 percent of all hospital admissions and therefore constitutes a significant amount of physical harm. Although more attention is being focused on this problem, hospitals are not required to record and publish the number of cases or the extent of harm done.

None of this is to deny fundamental differences in the circumstances of different harmful events. The argument is simply that it is unscientific, dangerously misleading and a political decision to treat in isolation just one type of physical or financial harm which people experience. If the CJR was serious about the ‘worry about crime’ then it should have recommended that ‘crime’ statistics should be published alongside a range of other harmful statistics — numbers in poverty, road accidents, accidents at work, iatrogenesis, food-poisoning, loss of homes through flooding and pollution.

The CJR made no attempt to examine the outcomes of criminal justice systems around the world. The Review group or small teams visited the following jurisdictions: Belgium, Canada, England and Wales, Germany, the Netherlands, New Zealand, the Republic of Ireland, Scotland, South African and the United States. We are told that these visits ‘proved invaluable in teasing out the experience of other jurisdictions in delivering justice’ (para 1.8). But there is no information on how these systems deliver ‘justice’ on the basis of gender, age, race or religion so that the reader can make up their minds about justice nor is there any information on broader developments within these systems.

All the countries studied have experienced large increases in the number of people sentenced to imprisonment as can be seen from Table 1 based on Home Office figures (Barclay and Travers 2000). It is perhaps significant that a number of countries which had decreases in their prison populations over the period were not visited. For example, Finland (-30%), Sweden (-15%) and Poland (-22%). In England and Wales the imprisonment rate has increased by over 31% since 1988 and now has one of the highest rates of imprisonment in Europe. More importantly, the average number of women in prison in England and Wales has increased by 38% between 1996/97 and 1998/99.

Table 1. Prison population of selected countries: Percentage change and rates.

The most staggering rate of increase has occurred in the USA. Its rate of imprisonment was fairly constant between 1920 and 1970. Since 1970 its rate has increased from 87 per 100,000 to 709 per 100,000 of its inhabitants in 1999. Put another way, in 1970 the USA imprisoned just under 200,000 people, now it incarcerates 1.93 million people. Its prison population is disproportionately black. To pay for the expansion in the criminal justice system, funds have had to be taken away from education, health, housing and other welfare programmes. The logic and dynamics of this increase is instructive. According to one view it began with an instrumental response to concrete public demand pushed by a powerful criminal justice lobby and ambitious leaders who could see the symbolic value of a get-tough approach (Gordon 1990). Beckett (1997), however, challenges the view that anti-crime policies were a collective response to popular sentiment. She argues that the origins of the punitive shift in crime control policy lie in the political rather than the penal realm.

Following the releases under the Good Friday Agreement, the number of people currently in prison (20 September 2000) is now 995, a rate of 66 per 100,000 of the population. If the 83 prisoners sentenced to life as a result of the conflict are excluded, then Northern Ireland would have a prison population of 912 or 61 per 100,000. It would be even lower of our courts stopped the unnecessary practice of sending fine defaulters to prison. In 1998, 1820 men and 95 women were sent to prison for default and the number of women treated in this way has nearly doubled since 1989. At 66 per 100,000 Northern Ireland has one of the lowest prison populations of any industrialised country. The major question is do we as a society wish to see this figure reduced further or are we to follow most other countries and increase the incarceration rate? Making changes to the criminal justice system, however progressive, will do little to prevent higher imprisonment rates. Resources have to be switched from the detection and prosecution of crime to the prevention of anti-social behaviour.

Increased incarceration rates are not the only characteristics of these other criminal justice systems from which the Group sought to learn. All of them have been characterised by an increase in repressiveness and punitivity in general. There have been changes in many countries to make the law tougher. Police powers have expanded at the cost of judicial discretion. There has been a stepping up of the penal repression of young people and particularly those from the working class. In addition, a far greater emphasis is now placed on an individual’s responsibility for their behaviour. Everyone is encouraged to be responsible for their own destinies. Significant shifts have taken place in the strategies of welfare. Instead of a focus on substantive issues of income distribution and poverty the focus is now on processual issues. People receive help not as a universal right but only if they fulfil certain obligations and responsibilities (Garland 1996).

There is widespread evidence, however, which shows that in many cases there are a broad range of structural and not individual features which help explain anti-social behaviour. Take the most serious crime of all - murder. Professor Dorling (1998) has examined the spatial distribution of homicides in England and Wales over the last 30 years and has shown that some areas have not experienced any murders while other areas have very high rates. When he looked more closely at the different areas he found that richer the area the lower the murder rate and the poorer the area the higher the rate. He then went one step further and looked at political representation and found that the high rates were in Labour held constituencies and cabinet minister represented some of the areas with the highest rates. He then asked in the light of these patterns, who is responsible?

A further criticism of the CJR is that it considers the criminal justice system in isolation and does not consider it from a broader perspective, either as part of economic activity or as part of a wider system of social control. Criminal justice is of great economic importance for the providers. It is an industry, as Christie argues, just like any other industry, which ‘provides profit and work while at the same time producing control of those who would otherwise have disturbed the social process’. He calculated that for the USA in 1999 the manpower absorbed in the penal law sector — in other words, prisoners and others - constituted a staggering 4 per cent of the labour force.

No comparable figures are available for Northern Ireland. In 1994 Tomlinson, however, estimated that at that time as many as one quarter of the total workforce were employed either directly or indirectly in some aspect of the conflict (Tomlinson 1994). The Fair Employment Commission publishes annual monitoring figures for both the public sectors. In 1996, the composition of monitored public and private sector employees totalled 397,077 people. This did not include any private sector concern with under 26 employees and a number of public sector employees, such as those employed in the security services. Of the people monitored 53,276 were classified as working in the Personal and Protective Service Occupations. This suggests that over 13 per cent of the monitored workforce were working in these occupations in 1996. If the numbers of people employed in building prisons or designing and making equipment in the crime control industry could be ascertained, the percentage would be considerably larger. From an employment perspective, this figure could be considered a success, but is this the type of economic and social order that we wish to see continue in a new vision of Northern Ireland?

The criminal justice system is only a small part of the crime control industry. There has has been what Rose calls ‘the reconfiguration of urban space’ in the name of security (Rose 2000). There are numerous examples, some which are specific to Northern Ireland, such as the use of roads or segregated social housing estates to divide communities or peace walls to separate communities, but others which are more general: the development of gated communities internally monitored and surrounded by walls as so vividly described by Davis in his account of downtown Los Angeles (Davis 1990); the replacement of public streets by privately run and policed shopping malls; and the surveillance of public spaces through CCTV. All these spaces either exclude the unwanted or the unwanted are allowed in but are heavily surveilled.

In these areas too, there is a choice. Do we wish these developments to continue or do we wish to change direction?

Another criticism of the CJR is that it did not examine the current costs of the administration of criminal justice in Northern Ireland. Yet one of its terms of reference was to consider ‘the resourcing of publicly funded elements of the criminal justice system’ (para 1.3). In a number of places it makes recommendations which will add to the costs of the system and it estimates the sums involved. It does not, however, present any figures on existing expenditure. It is extremely difficult to work out how much money is spent on different aspects of crime control and criminal justice. Most of the expenditure comes within the spending programme of the Northern Ireland Office. However, the Northern Ireland Court Service is responsible for the running costs and programme expenditure on the administration of justice in Northern Ireland and is part of the spending plans of the Lord Chancellor’s department. Many of the financial statistics are not broken down in sufficient detail to determine the costs of any particular stage in the criminal process. Moreover, it is hard to ascertain just how much of the expenditure goes on the bureaucracy administrating the programmes.

The total public expenditure in Northern Ireland amounts to over £10.3 billion in the current financial year, 2000-1. This includes all expenditure by the NIO, the newly appointed Departments, and £55 million from the Lord Chancellor’s Department for the Northern Ireland Courts Service. Figure 1 provides a breakdown of this expenditure by function. The most significant feature is that nearly one billion pounds, or 10 per cent of the total budget, is spent on dealing with law and order. It is the fourth major item of expenditure after Social Security, Health and Personal Social Services and Education and it exceeds the amount that is spent on Housing, Industry, Energy and Trade and Employment and Roads and Transport. This sum on law and order can be expressed another way. It means that as a society for every £1.90 that is spent on health and £1.60 on education, about £1 is spent on law and order.

Figure 2 presents a breakdown of the major elements in the law and order budget of £989 million. This is made up of £953.5 million of Northern Ireland Office expenditure on law and order and another £35 million from the Lord Chancellor’s Office to the Northern Ireland Courts Service. This latter figure is a ‘guesstimate’ because there is no information of how much of the total budget of £53 million is spent on the criminal justice system. Two-thirds of the total budget is spent on policing, the bulk of which, £647, is allocated to the Police Authority for Northern Ireland. Another £6 million goes on the Police Ombudsman and £14.1 million on ‘Policing and Security’. This includes £7.6 million on VIP Protection, Security Measures and other miscellaneous expenses and £4.3 million on the administration costs of the security division, police division and the various Independent Commissioners and £1.7 million on Furniture, Fittings and other capital expenditure. One fifth of the budget is allocated to the Prison Service and 6 per cent or £55 million to the Compensation Agency. The Probation Service receives only £10.6 million or 1 percent of the total law and order budget.

Over the coming years, if the peace process is maintained, there will be reductions in some of these categories as the police and prison services are restructured. There will, however, be countervailing forces which may lead, for example, to an increase in the number of people sent to prison. There needs, therefore, to be an open public debate about the wisdom of spending such a high proportion of the overall budget on ‘law and order’. Moreover, there needs to be a discussion of the allocation of funds between different sections.

Social class must form part of the debate. Although the relationship between deprivation and anti-social behaviour is a complex one, the behaviour which is mainly captured by the criminal justice system is committed by the unskilled and semi-skilled working class living in some of the most deprived and demoralised communities in Northern Ireland. Yet any expansion in the criminal justice system will create new employment opportunities for the middle classes. For example, between 1990/91 and 1998/99 the criminal legal aid bill more than doubled and now costs more than £15 million. While providing for criminal justice, the increase will not have provided social justice as it would have enhanced employment and wealth creation opportunities for the better-off. Similarly, the setting up of the Police Ombudsman’s office, costing £6 million, however beneficial from a criminal justice perspective, will be of little economic benefit to the communities whose behaviour is seen as presenting a problem.

Research has consistently shown that ‘an ounce of prevention is worth a pound of cure’ (For a review of what works see: Nuttal et al. 1998). One of the most successful ways to reduce anti-social behaviour is to focus on family-based and pre-school programmes. In the United States, Sherman found that home visitation programmes were particularly successful (Sherman and al 1997). The government is now committed to such an approach through the Sure Start programme which offers support to parents of poor children through a variety of different schemes. Northern Ireland’s allocation in the current financial year is £2 million, 0.2 per cent of the total law and order budget, or just £300,000 less than the security and policing divisions will spend on computers, furniture and miscellaneous items in the current financial year.

Social justice is at the heart of criminal justice. Much of the discussion in the CJR is located, rightly, within a discourse about human rights and the principles and values which should underpin the system. A whole chapter is given over to ‘Human Rights and Guiding Principles’. It recommends that the first guiding principle should be ‘to deliver a fair system of justice to the community’. It goes onto to define what it means by both fairness and justice. Fairness is understood as follows: ‘All should be equal before the law. Being fair and seen to be fair is vital in order to gain people’s confidence in the criminal justice system. In part this means treating all those who come into contact with the system equitably’ (para. 3.17) Apart from the obvious tautologous nature of this definition, no attempt is made to define what equal before the law means nor how everyone coming into contact with the system can be treated equitably in an increasingly unequal society. In short, it ignores the issue of social and economic rights and without social justice there can be no criminal justice.

There is a very real danger that the age-old conflict around national identity in Northern Ireland will be replaced by a ‘war against crime’ with one section of the population, albeit perhaps more balanced in its community affiliation, attempting to control another. It is likely to be characterised by the same processes of labelling, stigmatising and social segregation, which characterised the other conflict. The CJR’s recommendations are likely to lead to another expansion of the system. More people will obtain life-long employment in this area and will have a vested interest in further criminalisation. Politicians too will, no doubt, attempt to mobilise their support around the fear of crime. But do we want this form of social order where more and more people are policing an ever expanding section of the population and where public spaces, ironically induced in the nineteenth century to encourage civility, are being privatised or surveilled.

We have a choice and hopefully, as a society, we have leant the lessons of 30 years of a different form of conflict: criminal justice is a very ineffective and blunt instrument. Innovative thinking is required around how to deal with events and incidents which are traditionally captured by the criminal law. The challenge is how to move beyond criminalisation to a strategy of social inclusion in a context in which existing bureaucracies, government, political parties and those in the crime control industry all have a vested interest in responding to selected harmful events and incidents in traditional ways. The major task facing Northern Ireland is how to confront these vested interests and to shift resources away from policing and the criminal justice system to a range of interventions to build an inclusive society particularly for those of our most deprived communities.

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Christie, N. (2000). Crime Control as Industry: Towards Gulags, Western Style. London: Routledge.

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Garland, D. (1996). The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society. British Journal of Criminology, 36, 445-471.

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Tappan, P. (1947). Who is criminal? American Sociological Review, 12, 96-102.

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One of the more disappointing features of the Criminal Justice Review is the lack of urgency and detail in its approach to monitoring. The Review is stuck at the stage of debating if widespread monitoring by religion and gender is a good idea or not, rather than discussing what needs to be monitored and why.

Monitoring is not a new issue, though the criminal justice industry has managed to avoid it longer than other sectors. In the US, Britain and elsewhere, accusations of racism and sexism have been the principal focus of debates around the need for monitoring and precisely what should be monitored and how.

One area of concern has been the criminal justice workforce itself and the need to monitor the position and progress of women and ethnic minority groups with respect to the implementation of broadly based equal opportunities policies. Whether effective or not, most police forces and prison services now have equal opportunities units, including the RUC and NI Prison Service. Information on how socially representative criminal justice agencies are with respect to the wider society is now much more widely available than it was.

But the second area of concern has received much more media attention and is surrounded by more polarised controversy. When the Macpherson Report (1999) (into the police handling of the death of Stephen Lawrence in 1993) made its finding of 'institutionalised racism' within London's Metropolitan Police, it confirmed what many critics of the police, courts and prison service had been saying for many years - that criminal justice agencies routinely discriminate against whole classes and groups of people.

It was accusations and research findings of this nature which led to Section 95 of the Criminal Justice Act 1991 in Britain. This states that the Home Secretary 'shall in each year publish such information as he considers expedient for the purpose of:

a) enabling persons engaged in the administration of criminal justice to become aware of the financial implications of their decisions; or

b) facilitating the performance of such persons of their duty to avoid discriminating against any persons on the ground of race or sex or any other improper ground.'

Since then, the Home Office has produced half a dozen reports on various aspects of criminal justice and 'race', one on gender and two on costs. For example, one of the most widely known outcomes of monitoring is the finding that police officers are much more likely to stop and search black people than white - in some areas by a factor of six.

Few people are aware that Northern Ireland has the same monitoring provisions - Section 56 of the Criminal Justice (Northern Ireland) Order 1996 is based word for word on Section 95. In addition to the clauses quoted above, Section 56 states that the Secretary of State for Northern Ireland 'may make rules regulating the collection of information' under the Section.

It would appear, however, that Section 56 is barely operative. It is true that the RUC records 'racial incidents' using Association of Chief Police Officers' guidelines, which pre-date 1996, and that there are some breakdowns by gender available in relation to the exercise of Police And Criminal Evidence Order powers. The Criminal Justice Review notes that only one study - on gender - has been published under Section 56 during its four-year history. As far as can be established, the Secretary of State has not exercised the power to make rules about monitoring. Essentially, the specifics of monitoring receive no proper consideration anywhere in the Criminal Justice Review. Overall, little is said about data which is of strategic value to the running of the criminal justice system and to judging if its component parts are living up to the general ideal of non-discriminatory policy and practice, or the principles advanced in the Belfast Agreement. Furthermore, the Review is visibly more conservative than the Patten Report in its approach to several aspects of transparency and monitoring.

For example, on the issue of membership of secret societies including the Orange Order and Freemasons, the Review naively argues that any conflict of interests can be resolved privately through self-regulation. It even rejects the Patten idea of keeping registers of members of secret societies, on the presumption that 'right' of membership would be upheld on grounds of freedom of expression and/or association should this be tested under the Human Rights Act (1998).

'Equity monitoring' is discussed in just two pages (paras. 3.31-3.41) and three general recommendations are put forward. First, the Review says there should be 'a concerted and proactive strategy for securing a "reflective" workforce in all parts of the system', but there is no consideration of how that might be achieved either in respect of women or Catholics. Women are grossly under-represented in all operational arms of the criminal justice system and the Prison Service has a lower proportion of Catholics at all grades than the RUC. But the Review seems content that 'it will take time to get there'. Strangely, it does not even discuss the possibility of adopting the Patten recommendation of 50/50 Catholic/Protestant recruitment. Nor does it specify what 'equal opportunities' measures need to be adopted to transform the gender imbalance within policing and prison control.

The Review is at its most cautious when considering religious monitoring of the judiciary (paras. 6.118-6.121). It rejects the application of fair employment legislation to the judiciary because to do so might imply that judges are not independent. This is rather like the Police Federation's rejection of Patten's 'human rights oath' on the grounds that it implies that the RUC have abused human rights in the past. The Review is only prepared to recommend that applicants for judicial posts should be monitored.

The Review's second recommendation about monitoring is that the proposed Criminal Justice Board be tasked with 'developing a strategy for equity monitoring ... in particular by community background, gender, ethnic origin, sexual orientation and disability, whilst ensuring that this is done in a way that does not compromise judicial independence'. It gives no account of why such a strategy is not already in place.

Thirdly, the outcome of equity monitoring should be published on a regular basis, recommends the Review. At one level it seems astonishing that the Review has to make this point until of course it is appreciated that issues such as sectarian or sexual harassment within the police and Prison Service are regarded with great political sensitivity.

The Review also takes a conservative approach to the Northern Ireland Act (1998). Section 75, which describes the statutory duty of public bodies 'to have due regard to the need to promote equality of opportunity' is considered only with respect to employment within the criminal justice agencies. The law refers however to the broader concept of the 'functions' of a public body. Section 76, which states that 'it shall be unlawful for a public authority carrying out functions relating to Northern Ireland to discriminate, or to aid or incite another person to discriminate, against a person or class of person on the ground of religious belief or political opinion', is not referred to at all. The Review does little to reinforce the ethos of these sections or to contribute to their implementation. The RUC for example is not as yet designated by the Secretary of State as a 'public body'.

So if the Review can be criticised for only having started the criminal justice monitoring ball rolling, what should inform any future monitoring strategy?

1. All areas of employment (including the Judiciary and appointments to Boards) within the criminal justice system should be monitored by community background, gender and other relevant categories, with attention given to levels of seniority.

2. In 1998, the Northern Ireland Affairs Committee concluded that membership of exclusive organisations such as the Loyal Orders was incompatible with employment in public organisations including the RUC. If this is not to be implemented, then membership of the Loyal Orders and Masons should be declared by all criminal justice workers and a register kept from which statistics are published.

3. At any point in the criminal justice process where discretion operates, the outcome of decisions should be monitored by gender and community background, and on any other relevant basis.

4. Monitoring should continue to distinguish between those being processed under counter-terrorist legislation and special courts and should employ categories relevant to the conflict (e.g. group affiliation).

5. Every stage of the criminal justice process should be monitored by gender and religion and other relevant categories, including: stop and searches; house searches; clear-up rates for different communities; outcome of arrests; bail and remand recommendations; decisions to prosecute or not; mode of trial recommendations and all court outcomes.

A central concern for all modern criminal justice systems is the degree of ownership and involvement of those communities that the system is supposed to serve. A crucial weakness of the Northern Ireland Criminal Justice Review is its apparent unwillingness to accept the challenge which this inevitably entails in a divided society. Its attitude is summed up in its statement that: "In Northern Ireland in particular, coercion or threat, real or implied, are ever-present dangers which cannot be ignored, even with well-intentioned schemes which on the face of it include safeguards for the rights of offenders and victims." (Para 9.95) This is in reference to its dismissal of community restorative justice schemes but seems to betray a general fear of the community.

The Review rejects a lay magistracy, claiming that lay people could not handle being involved in "high profile" cases. (Para 7.43) It also recommends that the Probation Board, currently independent, be brought back into the civil service as a Next Steps agency, effectively subservient to the Prison Service (Para 12.103). When it comes to the possibility of actual communities, real neighbourhoods engaging with the system, the Review is even more dismissive.

There has been a massive upsurge in interest in the ideas of restorative justice in Northern Ireland over the past three or four years. Communities in both Loyalist and Republican areas have taken enthusiastically to the principles and practice, which we describe below. In explicit reaction to this, a whole chapter of the Review is devoted to the subject.

In relation to community restorative justice, the Review is at first dismissive: "community-based schemes which have no or only tenuous links with the formal criminal justice system, will by definition not lie at the heart of mainstream approaches…We do not therefore see these as central…but, in view of the interest in them and their existence in parts of Northern Ireland, we address the issues that they raise at the end of this chapter." (Para 9.57) This patronising comment hides the reality that there has been an ideological war raging around these projects, in public and in private, since before the time of the Agreement.

The publication of the "Blue Book" (Auld et al. 1997), an account of dialogue about community restorative justice between Republican community activists and a number of people from the voluntary and academic sectors sparked a government response which was fed into the peace negotiations. This basically insisted that any such scheme must work under the supervision of the Royal Ulster Constabulary. A number of policy papers and protocols followed, all demanding police involvement.

The Review Group followed this position in almost every particular. For schemes that are, apparently, not in the "mainstream" of justice, it appears they have to be most closely regulated. In this approach, the Review are again demonstrating that fear of the community that is both a typical bureaucratic response and a particular hangover of the conflict when working class communities, Loyalist or Republican, were only entered by criminal justice institutions (with the exception of the Probation Service) in armoured columns. Such communities were the enemy then, and appear to be the enemy still.

The Review Group position is backed up by one of the eighteen research reports it commissioned (Dignan 2000). In his research report, Dignan (2000: 18) claims the authors of the "Blue Book" (Auld et al 1997) accept an authoritarian, exclusionary form of "communitarianism." He contrasts that with a vision of "inclusionary communitarianism." In fact a specific section of the discussion document (Auld et al 1997: 41-44) is taken up with discussing and answering the charge that the authors might be helping to create a "totalitarian community," a feature that Dignan somehow fails to mention. The devotion to "inclusionary communitarianism" by Dignan and the Review Group seems purely theoretical, however, although we would argue the concept fits what the community-based restorative justice projects are trying to do. For Dignan and the Review propose a model of restorative justice fully integrated into the state machinery with little or no scope for community representation.

This "fully integrated" model is one end of a typology spectrum with community-based schemes, with few links to the formal justice system (the "stand alone" model), at the other end (Dignan 2000: 45). This arbitrary typology appears designed to establish a structural opposition between the community and formal justice. It cannot "see" a situation in which autonomous, self-generating community organisations co-operate closely with all statutory agencies in a truly "three-cornered" system of restorative justice. This tri-partite structure, the involvement of the offender, the victim and the community, is one of the defining characteristics of restorative justice. The project of fully integrating restorative justice ideas into the formal justice system is an exciting idea, though not yet fully accomplished in any jurisdiction of which we are aware. If it means anything other than co-option, putting a restorative gloss on a basically retributive system, however, it must mean mainstreaming local community involvement in the criminal justice system.

This prospect, with local community organisations and volunteers involved in crime prevention, mediation, organisation of community service, victim support schemes, developing reparative solutions for the formal courts, liasing with the statutory services in reintegrating ex-offenders, is truly challenging. Unfortunately, the Review Group, following Dignan, have no time for this vision. In a startling and radical suggestion, the Group propose that the entire youth justice process be based on "youth conferencing," and that research be done on how restorative justice could come to dominate the adult system. This looks like an amazing conversion, until one looks at the detail. There is no representation for the community in the youth conferences, unless one counts the "significant others" of the offender as such, thus ignoring one of the three dimensions of the restorative relationship (Para 9.76-7). We may also note that retributive and restorative disposals are all proposed to be available and may be mixed in any combination in a suggested jumbo "youth conference order."

In the less controversial area of community safety, the Review is hardly more radical. Its major proposal is that the old Community Safety Centre, a failed attempt to make links between statutory agencies and communities, be absorbed into a new government Community Safety Unit. This is another civil service solution to a problem that actually exists out in the neighbourhoods where people live. The Review does support the Patten proposals for District Policing Partnerships recommending that they be re-named "Community Safety and Policing Partnerships." It also supports the Patten idea that these bodies, made up of half local councillors (by proportion of party seats on the local council) and half social partner representatives, have the right to raise 3p on the rates to fund community safety initiatives.

A key difference however is that the Central CS unit will have control over budget and to an extent the ethos and operating principles of the community safety element of the CSPPs. This helps tie them to central government in a way in which Patten does not. Under Patten, while community representative would be facing a central police service on these Boards, the communities’ opinions and proposals would not be subject to direct government influence. Under the Criminal Justice Review, the same bodies would be in effect under the control of a central government unit (located in the 1^st Minister’s office), able to direct bodies that theoretically represent the community.

Unlike Patten, the Review has no proposals for the level from the District Council to the community. There is no obvious role for people from the neighbourhoods where crime and anti-social behaviour actually occur. Presumably they are to be the objects of more "inter-agency initiatives," more well-meaning projects conceived on desks in government offices, rather than being the drivers of programmes tailored to local needs.

In sum therefore we view the Criminal Justice Review’s notion of relations with local communities as a partial one, based upon a fear of substantial community involvement and a desire to retain centralised governmental control over the key elements of the system. Such a view is both out-moded and counter productive in terms of the broader efforts to make the system more widely accepted and more accountable.

The Patten Report shows some understanding of the complex nature of the issues and makes it clear from the beginning that the report’s focus will largely be on the development of a policing service to deal with localised community crime. The Criminal Justice Review (CJR) makes the distinction between crime serious enough to mean court intervention and that which is sufficiently trivial to be diverted from formal administration. Given the existence of two groups looking separately at closely intertwined subjects, namely the interdependent relationship of policing and criminal justice, one would expect close cooperation, if not joint sessions, to work out common values and align issues and process. However, one learns that the Review group and Patten appeared to make a virtue of non-cooperation, "We did not, however, believe it appropriate to share our thinking." (p. 8) Why this seemingly competitive rather than collaborative approach developed is not made clear. However, it did have important implications because a study of both reports shows that, philosophically and structurally, many of the recommendations in the two reports contradict each other. Indeed, if the structural proposals in Patten are implemented we will have a police service accountable to, in touch with, and governed by the community it serves, while, if the CJR is implemented we will have a raft of other smaller but not unimportant criminal justice services run by the civil service, less accountable and more removed from the community they are supposed to serve than that provided for by the existing situation.

What is of concern is that the CJR, tasked with making the criminal justice system more accountable and more responsive to the community, believes that this can be accomplished by the creation of a plethora of Next Step agencies, where no matter what the window dressing, the staff are civil servants whose first loyalty, and rightly so, must be to their Minister and their parent government department. Indeed, the irony is that the concept of Next Steps was first invented in an attempt to decentralise and invigorate bureaucratic civil service departments on the basis that large bureaucracies irrespective of Government policies are distanced from the community and therefore find a sustained customer focus difficult. Universally there is a recognition that while the civil service can effectively advise and implement government policy it is not a suitable mechanism for service delivery, which to be effective should have community involvement in governance and be placed as close to the people it serves as possible. Patten recognised this, hence the importance placed on the Police Board, similar in composition and powers (but with a revamped and dynamic membership) to tried and tested structures delivering our health, welfare education and other community based services already. Much of the ongoing concerns about the rewriting of Patten is not about symbolic issues but about an attempt on the part of either the officials or the politicians to claw back central control over service delivery and away from the community-based Board.

In this area of future structural arrangements the Criminal Justice Review pays scant attention to its terms of reference, namely, "measures to improve the responsiveness and accountability of, and any lay participation in the criminal justice system." (p.2) With the exception of the Judiciary and the Public Prosecution service and the Court itself, all the other Court/ Community services are set to become, not servants of the court, or the community, but servants of their political master. Thus, it is recommended that the Probation Service (presently run by a Community based Board), Preventative, Community, and Residential Services for Young People, the Community Safety Services, the Restorative Justice Services, and the Prison Service (already a next steps agency) are all to become next step agencies, centralised under a locally devolved Department of Justice. Why any Minister of Justice would wish to make him or her self directly responsible to the Courts for the delivery of such a range of individualised community services which depend for their success on community involvement, is not explained in the text. Indeed there appears to be no realisation amongst the report’s authors that it is critical that the trends and proposals in the field of criminal justice are defined in relation to the needs of the community rather than as a construction of the needs of the state. Patten understood this well. The CJR does not. The recommendation that a powerless Advisory Board be set up to advise the Minister and the Next Step Heads of Department fails to appreciate the depth of the Northern Ireland’s communities understanding of issues of power and leadership and does not meet the effectiveness test for either greater accountability or responsiveness.

The concept of restorative justice and its capacity to marry the formal criminal justice systems with community needs, and thereby return responsibility and power from the state back to the community from which crime emanates, is one of the most exciting developments in penology in the past fifty years. Sadly, the recommendations in Chapter 11 turn this holistic approach into what appears to be a device to be used by selected court officials to give effectiveness to victim /offender work. The proposals as they stand are a travesty of restorative justice and must surely have arisen from a short term, albeit legitimate, concern about current developments in this area outside of the formal system in some parts of Northern Ireland at present. However, I would have thought that the review should be visionary and not overly preoccupied with short- term issues. Universally, there is agreement about the fundamental principles underpinning restorative approaches:

1. it is a way for the state to engage with the community to repair some of the harm that crime does to the victim, the community and the offender him/herself
2. power sharing between community and state is essential
3. those administering schemes should be as independent as possible from the court and state agencies but obviously accountable to them
4. victims’ needs have primacy
5. for all parties the commitment must be voluntary and rights must be protected at all stages

The CJR recommends an exclusively court-based scheme with no real involvement or power for the local community, coupled with strong sanctions for offender non-compliance and for the service to be administered by government. This structure runs counter to the aims of the restorative justice approach.

The CJR, while acknowledging the clear values and principles outlined in the U.N. Convention on Children, pays little heed to its implications in some of the recommendations. For example, it is critical that children and young persons are kept out of criminal justice processes as much as possible. The recommendation that "schemes for the prevention of crime" should become the responsibility of a centralised criminal justice department is difficult to understand. Social Services currently have clear responsibility for young people at risk, and for services intended to help such vulnerable children avoid crime. These resources and expertise should remain with a non-criminal justice agency.

The proposals for governance of services for Juvenile Justice are the same as for Sentences, Prisons and Probation. Again we have a new set of Next Step Agencies but the rationale given, as with so many other recommendations, makes no sense. For example, the Black Report did indeed recommend that Probation’s governance should be undertaken by the community, but not just because of the civil situation then, nor particularly because of association with the NIO. It was for the reasons articulated in the report and as relevant then as now or in the future, not just to Northern Ireland but to any country with community based sanctions and measures: "However if the service is to enjoy fully the confidence of the community, which will be essential if it is to carry out its work successfully, we consider that this can be best achieved if the community participates directly in the management of the service." This sums up the critical point. The Black Report, published in 1979, wears well and still convinces, especially in reinforcing the principle that young people’s services should, where possible, be delivered in a non-criminal context in the community and as near the family milieu as possible.

The CJR gives praise to the past achievements of the Probation Service (which is the only criminal justice agency to represent the community in religious and gender make up.) However, for no rational reason, it then recommends the dismantling of this successful community-based Board (which spends at least 25% of its budget on service purchase from the community) in order to create another Next Steps Agency. The model of the Probation Board here has excited interest in the UK, in the Council of Europe and further afield, amongst countries which realise that their community sanctions and measures must have a better community base if they are to be effective in gaining the confidence of the community. Of course prisons and probation should work more closely together. However, it is important to bear in mind that the two organisations have very different functions. The primary purpose of prison is to exclude persons from society whom the court deems it necessary to lose their liberty. The function of probation is to integrate persons back into that society. Probation’s natural base is as close to the community as possible.

Will the recommendations of the CJR concerning community-based criminal justice services help communities to better deal with their own problems of crime? Will civil service centralised control of all those important community based services help make the criminal justice system more responsive and more accountable to the public? The Review gives no clues as to how the inherent contradiction between strategy and supporting structure will be resolved. In fact, the way forward is obvious to anyone who has read Patten and likes the model of governance recommended in that report. Instead of the proposals for centralised control so beloved of the CJR, the future structural arrangements for community justice agencies servicing the court and community should be part of the community. The Probation Board should be stood down, not so that the Government can take over again, but so that a new Board can be appointed to stand alongside the Police Board with similar representation, responsible for all community-based Sanctions and Measures, including Juvenile Residential Provision and maybe even the Young Offenders Centre. Such a provision would certainly make the criminal justice service agencies accountable and responsive to the community.

Legislation and Services for Children and Young Persons in Northern Ireland. Report of the Children and Young Persons Review Group. (Black Report) October 1979, Unpublished.

The Report of the Independent Commission on Policing for Northern Ireland, (Patten), 1999.

‘The current criminal justice system: How do we measure up?’ Speech at International Corrections and Parole Conference, Hungary. Judge E.C.E.Pratt Q.C., District Court, Queensland. Unpublished (available from B. Gadd).

Minimum Rules for Community Sanctions and Measures. Council of Europe, 1992, Published Council of Europe, 1994.

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