11 February 1994 - 13 February 1994

Penal Policy: Punishments, Prisons and Crime Prevention

Chair: The Rt Hon The Lord Windlesham CVO PC

This was the first time since 1986 that Ditchley had directly addressed penal policy, and we were aware that at least in some respects attitudes and policies had shifted a good deal meanwhile. As in 1986 we drew participants essentially from the countries of the “Anglo-Saxon” legal tradition, but we had a wide professional span. We had the benefit also of a special session on the Saturday with the Home Secretary, who gave generously of his time and attention.

We noted early on that good data to underpin policy were, even at national level, not easy to come by (and at local level, where crime-management action could often be targeted more effectively, sometimes scarcely available at all). Apparently-significant statistical trends might reflect no more than changing practices, priorities or motivations in recording. The one safe conclusion was that the incidence of crime was in all our countries high enough to constitute a grave problem for public policy.

Crime was a diverse phenomenon, and its causes and explanations as diverse. There was no doubt that certain sorts of crime, like street violence, were more severe (and still worsening) in areas of social and economic deprivation like inner cities than elsewhere; most other types of area were indeed becoming safer. There was a powerful case accordingly that a truly comprehensive anti-crime policy must include long-run social and economic measures to remedy urban devastation. At the same time it was important not to postulate a single generalised correlation - in effect stigmatising inner-city residents - between deprivation and crime, nor to fall into stereotyping of “criminal classes”. There were also real risks of cynicism and alienation if public policy appeared to suppose that crime occurred substantially amongst the poor, and that offences more characteristic of the better-off, like widespread tax evasion, somehow did not count.

We touched on both drugs and race as, albeit in very different ways, important aspects of the situation in respect of crime. In some areas and countries the correlation between drugs and crime was very strong; and we had some discussion - partly anticipating Ditchley’s next conference - on whether decriminalising the use of soft drugs would be on balance advantageous. It was suggested that in this regard the law, at least in Britain, risked diverging perilously from general attitudes in the community, and that the police had largely ceased to concern themselves with soft-drug possession - an illustration of how changing social attitudes often had more influence than formal law on perceptions and pursuit of crime; a converse illustration, again from Britain, was that violence within the home was now much less regarded than in the past as a private matter.

Attention was sharply drawn - though our discussion did not plumb the issue - to the remarkable difference, in Britain not less than in the United States, between the proportion of white and of non-white males convicted of crime. The disparity, which sometimes extended also into wide differences as between non-white ethnic groups, was surely too dramatic to be dismissed as merely a reflection of economic inequalities, and it should prompt legitimate unease from several angles; but candid study and public discussion seemed much inhibited.

As we turned to discuss remedies for the problems of crime, and particularly the part the criminal-justice system should play, we were vividly aware - and this indeed became a central theme of the conference - of the clear and often deep mismatch between attitudes among the general public (with political stances seeking to respond to these and even to exploit them) and those widely shared among professionals. Being “tough on crime” was commonly, and perhaps increasingly, a posture believed to win votes; and though some doubted whether the public truly wanted this if questions were properly posed, it seemed plain that there were powerful expressive strands of fear and loathing in these public attitudes, especially in the wake of extreme yet high-profile cases (such as exceptionally appalling crimes of violence, or bizarrely persistent young offenders) where it was hard for political leaders to ignore “do-something-now” demands. This generated a tide of pressure against which professionals, more coolly aware of the limitations of all the available instruments in achieving practical programmatic objectives, could swim only with difficulty. Just for example, relatively few operating within the criminal-justice stem thought that making penalties more severe (in particular, lengthening prison sentences) contributed commensurately to the deterrence of crime; but the public seemed instinctively to believe otherwise. We were minded to recognise that proportionate expression of society’s abhorrence might legitimately be an element in penal policy; but public opinion often seemed fixated by this, to the detriment of cost-effectiveness and the distortion of priorities amid limited resources.

Prisons, we knew, were an inescapable part of any legitimate system of criminal justice. They were an extremely expensive part, and in the wrong conditions could do as much to intensify as to alleviate the problem of crime. Their core reality was the withdrawal of freedom, harsh enough in itself, and to go materially beyond this in a punitive direction - to use them, as the shorthand had it, for punishment rather than as punishment - carried grave risks both of deepening criminal propensities and of missing constructive remedial opportunities. There was wide support for the view that education in a broad sense - often perhaps embracing quite basic living skills, given the preponderant character of prison populations, and extending wherever possible to realistic work experience - could and should play a larger and better-focused part within prisons, alongside the essentials of ensuring that prisons did not deepen bitterness through unfairness, demeaning conditions, and inadequate protection against violence. Some prisons were still awful places; and the relief of gross overcrowding, and the encouragement of prison staff in the value of their service and in proper continuing engagement with prisoners, were necessary supports to improvement. So was positive local community involvement with prisons and prisoners, not just through families; and that involvement should not stop as the prisoner stepped out through the prison gate.

We discussed sentencing, albeit fairly briefly. The inflexibility of mandatory minimum sentences found little support, but we were more divided about “guidelines”. Some stressed their value in support of public confidence and perceived fairness; but questions were asked about by whom and on what criteria they were to be framed, and how they were to be prevented from drifting by expectation into becoming quasi-mandatory.

We were interested in the scope for more use of non-custodial (or mixed custodial/non-custodial) sentences, though we acknowledged that experience was limited and patchy. Aside from reducing pressure on prison capacity and costs, such sentences could make it easier for the individual to maintain employment, with likely benefit to post-sentence behaviour. Arrangements were however often difficult to set up, and to monitor, and it was important to establish clearly fair criteria, for example in order to avoid perceptions that such sentences were an inequitable soft option provided to the better-off.

We were sure that more could be done - often by relatively straightforward practical means - to strengthen the prevention or alleviation of crime. (We heard again the customary external astonishment over the US gun-control issue, for all that change now seemed at last to be coming.) The physical difficulty of stealing could be heightened in various ways - in Britain, just for example, by having cash-less meters and by official recording of car write-offs. There were of course dangers at the extreme - in creating “fortress” conditions and mentalities, in constraining reasonable freedom of life-style, in seeming to imply that the fault for crime might lie with victims. Overall, though, we believed that more systematic and high-profile preventive effort and better dissemination of good practice - not least in relation to disadvantaged areas where victims might most often suffer - could make a big contribution. We had the impression that such a contribution was often hampered at present by difficulties of coordination and diffusion of responsibility, notably at central-government level.

Here as elsewhere in our survey the contribution of the police was of especial importance; in most areas few things could make a bigger impact on crime prevention, for example, than a frequent and evident police presence. We observed a difficult tension here - especially in new management cultures increasingly stressing measurement and targets - between the deployment of limited resources to enhance prevention and their deployment to maximise arrest or clear-up statistics. This indeed illustrated a more general problem besetting the countering of crime both in the substance of priority-setting and in its public presentation and explanation: it was hard to measure what might have happened but did not, and to offer this as a credible response to demands for urgent action on what did. It might be, so some optimists among us hoped, that publics could be brought to understand - and political leaders to want to help them do so - that stark punitive measures could not be made the prime component of strategy; and such understanding might well be driven, indirectly, by the increasing possibility that mounting effort on the punitive side would reach the boundaries of tolerable affordability in public expenditure.

There was wide agreement that the criminal justice system, whatever its other aims (like the powerful expression of society’s values), could play only a limited part in the control of crime, and that public expectation mostly overrated that part. A comprehensive strategy had to have many interacting components, diverse in character and timescale, and no participant suggested that understanding of them, even among experts, was other than partial; there remained major tasks for study to support better-calibrated policy-making - to improve judgment on what works. The search needed to bear always in mind that the elements of sound strategy would include none that dealt with everything, and many which could easily be assailed as not addressing this or that aspect of the problems. “What works” was the keynote; and that implied a constant and flexible alertness to practical operational objectives.

This Note reflects the Director's personal impressions of the conference. No participant is in any way committed to its content or expression.

Chairman: The Rt Hon The Lord Windlesham CVO PC
Principal of Brasenose College, Oxford and President of Victim Support


Mr Ian Dunbar CB
Director of Inmate Administration, HM Prison Service, Home Office

Mr David E R Faulkner CB
Senior Research Associate, Oxford Centre for Criminological Research, and Fellow, St John’s College, Oxford

Professor John Gunn CBE
Professor of Forensic Psychiatry, Institute of Psychiatry

Mr John Halliday
Deputy Under-Secretary of State, The Home Office

Dr Roger Hood
University Reader in Criminology, Director of the Centre for Criminological Research and Fellow of All Souls College, Oxford

The Rt Hon Michael Howard QC MP
Secretary of State for the Home Department; Member of Parliament (Conservative), Folkestone and Hythe

Sir Peter Imbert QPM
Commissioner, Metropolitan Police (1987-93)

The Rt Hon Lord Justice Kennedy
ALord Justice of Appeal

Mr Robert Maclennan MP
Member of Parliament, Caithness and Sutherland

Mr Michael Malone-Lee
Deputy Secretary, Lord Chancellor’s Department

Mrs Barbara Mills QC
Director of Public Prosecutions

Professor Rod Morgan
Dean of Law, University of Bristol

Sir Derek Oulton GCB QC
Barrister-at-Law; Fellow, Magdalene College, Cambridge

Ms Melanie Phillips
Columnist, The Observer Newspaper.

Mr Nicholas Purnell QC
A Recorder

Ms Helen Reeves OBE
Director, National Association of Victims Support Schemes

Dr Pamela Taylor
Head of Medical Services, Special Hospitals Service Authority

His Honour Judge Stephen Tumim
A Circuit Judge

Mr Nigel Whiskin MBE
Chief Executive, Crime Concern.

Mr Tom White CBE
Principal and Chief Executive, National Children’s Home Action for Children

Professor Michael Zander
Professor of Law, London School of Economics

Judge David P Cole
Co-Chair, Commission on Systemic Racism, Ontario Criminal Justice System

Ms Alison MacPhail
Director General, Corrections Research and Strategic Policy, Solicitor General Secretariat
Professor Allan Manson
Professor of Law, Queen’s University, Kingston, Ontario

The Hon Charles B DeWitt
Independent consultant; Director, National Institute of Justice (1990-93)

The Hon Martin L C Feldman
United States District Judge, Eastern District of Louisiana

Mr Marvin E Frankel
Partner, Kramer, Levin, Naftalls, Nessen, Kamin & Frankel, New York

Professor Daniel J Freed
Yale Law School: Clinical Professor of Law and Its Administration

Professor Abraham S Goldstein
Sterling Professor of Law, Yale Law School

Professor Andrew von Hirsch
Professor of Criminal Justice, Rutgers University

The Hon E Leo Milonas
Chief Administrative Judge of the State of New York

Mr J Michael Quinlan

Mr F Kenneth Schoen
Director, Justice Program, the Edna McConnell Clark Foundation

Mr Michael E Smith
President and Executive Director, Vera Institute of Justice

Professor Michael Tonry
Sonosky Professor of Law and Public Policy, University of Minnesota

The Hon John K Van de Kamp
Chairman, Litigation Department, Dewey Ballantine, Los Angeles