What would you think of if someone asked you about erosion control? I immediately think of the east coast and parts of the south west where the cliffs are crumbling into the sea.
I think of geography lessons discussing long shore drift and Hallsands village in Devon. Would you think of the criminal justice system?
I recall a time when as a young PC, a blackened eye or a bruised arm were injuries that were processed under S47 of the Offences Against the Person Act 1861.. i.e. actual bodily harm. In recent years the lesser assaults fitting this category have gradually migrated to common assaults. There was a time in my service when common assaults were not processed at all. They would be concluded with words of “advice”. The trouble with such change is that it is very gradual and the closer you are to the change the harder it is to detect. We can use our children as a way of illustrating this. We know they are growing, generally because their clothes don’t fit but because we associate with them every day the changes are less discernable. But when a friend comes to visit who hasn’t seen them in some time the change is dramatic. So in many ways the police have been aware of such changes but because we are so close they have crept up on us and and become accepted as the norm.
There are plenty of officers who will know of cases where a charged S20 assault has been reduced to a S47 at court, an affray has been downgraded to a S4 fear of violence matter or a burglary to a theft from dwelling. Plea bargaining is nothing new. Many times I have been asked by a prosecutor how I felt about an offence reduction. “They will plead to a 47 and we can avoid a trial” is something many other officers will have heard too. I have to hold my hand up and admit that unless it has been a very important case for the victim I have taken the path of least resistance. But what message are such decisions sending out?
Rudolph Giuliani introduced zero tolerance to New York in 1993. It was later introduced in Middlesbrough by Ray Mallon. I know as well as any other officer that statistics can be massaged to show the desired result. But overall there were good indications that zero tolerance reduced crime. What it does though is remove one of the fundamental aspects of British policing… discretion. Zero tolerance as a wider all encompassing method of policing appears to have died a death but the phrase still lingers in areas such as domestic violence, child abuse and bullying. Zero tolerance forbids officers to exercise discretion and to change punishments subject to the circumstances and past history. There is a predetermined penalty and that must be applied in every case. Having spent many years as a traffic officer I know only too well how powerful discretion can be. There are many cases where simple words of advice will go much further than issuing tickets like an automaton.
In recent years the police service nationally has been driven by performance indicators. The government has required forces to meet targets. Forces have therefore pressured divisions and departments to become figure chasers. There is an in depth article about this by Insp Guilfoyle (West Midlands Police) below that is far more eloquent than I could hope to achieve.
Insp Guilfoyle’s Blog
This culture whilst not known as zero tolerance does in fact engender a similar mind-set. Officer’s decisions to use discretion are affected by the tally sheet they know needs to be full at the end of the month. Words of warning may therefore be substituted with prosecution simply to satisfy the figures and keep the boss off your back. But there is one fundamental benefit to zero tolerance that I like. My gran used to say “if you take care of the pennies, the pounds will take care of themselves.” If this is literally translated to crime it suggests that if we concentrate on the minor offences the major ones will look after themselves. This is obviously a simplistic view but it does give a starting point that engenders a mind-set. If a criminal knows that he/she will be punished firmly for dropping litter, allowing their dog to foul the footpath or other similar misdemeanours they are less likely to commit more serious offences. As a current benchmark we can say that an offender is less likely to commit armed robbery than he/she is to go shoplifting. Again a simplistic view but the point is clear.
It seems on occasions that we (as the combined agencies involved in the CJS) are talking a job down from the minute it starts. By way of example; officers make an arrest for a S18 assault. By the time the detainee is in custody and the initial investigation gets going CID have got involved and determined S20 is more appropriate. The CPS reviews the case and authorise a S20 charge. The case goes to Crown Ct and just before the trial the defence offer a plea to a S47. The prosecution accept as a guaranteed guilty plea is a tick in a box for their statistics and saves everyone a lot of time and money with a trial. The judge accepts the plea and sentences the defendant having given due regard to the fact the prisons are full. A prison sentence is handed down and HMP take custody of the prisoner. But an 18 month sentence only really means 9 months. To add to this the prisoner is well behaved and gets a further reduction in his sentence and is released on licence to probation. Probation manage the case and when he gets caught for shoplifting they choose not to revoke his licence because it’s a totally different offence and he has been trying really hard to rehabilitate himself. Furthermore the government are putting pressure on them to achieve rehabilitation targets.. not recall targets. So many times I have listened to detainees on the phone to friends or family explaining that they are going to prison for 12 months but will be out in 4. It has become an accepted truth that 12 months means 4, 5 years means 2 years and life means… well anything except “life”!!
Discretion is a fundamental aspect of British policing. Long may it remain. In recent years we have lost our way a little in the pursuit of performance indicators and a general misunderstanding of what “positive action” actually means. But, if after considering discretion we choose to prosecute an offender then we should have a rigid penalty system in place that does exactly what it says on the tin. 12 months means 12 months, 5 years means 5 years and life means.. well.. life. As it stands we have a system full of flexibility that does little to promote public confidence, does little to reassure the victim and offers no solid deterrent to the criminal fraternity.
Are you familiar with the Old Man of Hoy? To me it gives a good visual representation of criminal offences in this country. The lesser are toward the bottom and the more serious at the top. It is a delicate structure and vulnerable to the ravages of the sea and weather. If we continually undermine the seriousness of offences, reduce penalties and give more and more leeway to offenders then the stack will become unstable. If we keep prodding and poking at all the different levels there is going to be unnatural erosion and the whole thing runs the risk of collapsing. It’s long overdue for the government and all CJS partners to work together and promote erosion control tactics to get our legal system to a place where it is feared by the criminal fraternity, acts as a real deterrent and the tower has some secure foundations to rest upon.