Author: markjf62

GETTING THE CRIMINAL JUSTICE SYSTEM WE CHOOSE Part 3: The Philosophy of the Criminal Justice System:

PBA0105 

Mark Fletton writes:

 Let me pose another question. What do we mean when we say ‘the criminal justice system’? It would be an interesting experiment to simply stop now and invite responses. It is a phrase which is used frequently, and yet we rarely stop to consider what it actually means. If we want to feel ‘safe’, and maybe not think too much, we could simply go to one of the many online or ‘hard copy’ sources and lift a definition. If you do that, you will probably find a definition along the lines provided, for example, by Oxford Dictionaries which provides that a ‘criminal justice system’ is ‘The system of law enforcement that is directly involved in apprehending, prosecuting, defending, sentencing, and punishing those who are suspected or convicted of criminal offences.’

All very neat, isn’t it? In twenty-five words we have encapsulated the essence of one of the most vital components of our society: one that deals with protecting the citizenry from all manner of ‘harms and wrongs’ and ‘punishing’ those who perpetrate those wrongs. And it covers a huge production line, from initial apprehension of suspects (normally undertaken by an organisation established and dedicated to that purpose) to those who undertake and dispense ‘punishment’, and all stations in between. The same dictionary uses twenty-eight words to define ‘elephant’.

‘Systems’ are good. A system is a set of things working together as parts, forming a complex whole. A watch is a system, the pipes which bring water into your home comprise a system, and your body is a system – a system which contains many other systems. Notice anything about these systems? Well, they all work together with a simple purpose. If a spring goes in your watch, you can’t tell the right time. If a water-pipe bursts, you can forget a cup of tea in the morning. And if your blood gets infected, you are going to need a doctor, quick.

I am going to argue that the criminal justice ‘system’ (if we adopt the simple definition above), as it has evolved, is really not a ‘system’ at all. I would describe it more as an ‘industry’, although in many ways an industry at least seems to have the advantage of having some idea of the reason for its existence and its primary goals. The car industry exists to produce metal boxes with wheels to make people’s lives more comfortable and enjoyable, and to make as much financial profit as possible whilst doing it. The management and employees all know what they are striving to achieve and generally all pull in the same direction to achieve it. The criminal justice ‘industry’ is a huge undertaking, mainly financed from the public purse, and employing an eye-watering number of people. There are some 130,000 serving police officers, for example, and that is before we begin to count the number of Police Community Support Officers and staff in support roles. Then you have court staff up and down the country, the CPS and its support staff, solicitors, barristers, judges, prison staff, probation staff and on and on. This is, on any view, a sizeable enterprise.

Criminal legislation generally begins in Parliament, when the governing political party, or parties, decide that a particular activity or behaviour should be deemed a criminal offence. This is often, though by all means not always, driven by what they perceive the general public consider as important (and which political party wants to dent their prospects of electoral success?) or as a response to specific events (eg terrorist attacks – consider the volume of criminal legislation this has driven in the past thirteen years!). Of course, the politicians would say that they are taking steps to protect the public; which, by happy coincidence, helps to obtain the support of the electorate if they can convince them they have protected them by passing the legislation, and shown them they are ‘tough on crime’. The police, of course, have the task of apprehending those who they deem to be breaching these laws. They then pass the person accused of a crime to the court system, where eventually evidence is tested and guilt established, or not, as the case may be. If guilty, the convicted person then moves into the ‘punishment’ regime, the sausage meat end of the process.

I suggest that any system is ordinarily judged by success in achieving what it is designed to do. A watch is designed to tell the time, water-pipes to deliver water, and your body to stay alive, and if any of these things don’t result we would have no hesitation in saying the system has failed. The failure of one component in an integrated task will defeat the purpose. But what is the purpose of the ‘criminal justice system’, and what are the criteria for ‘success’?

Although some readers may regard it as cynical, a government passing laws will see the success of what they are doing in essentially keeping the electorate happy, and getting re-elected. The police will see success in terms of arresting people they believe have broken the law, and hitting their ‘targets’ as efficiently as possible. The Crown Prosecution Service, charged with the task of prosecuting those in the court system, sees ‘success’ as achieving as many convictions as they can. Defence solicitors and barristers see ‘success’ as the acquittal of as many of their clients as possible. Judges see ‘success’ as passing what they deem to be a sentence ‘in accordance with the law and guidelines laid down’ to the point where they are not the subject of too many successful appeals. Those involved in running the prisons see ‘success’ as implementing a regime where prisoners are kept secure and don’t escape. Probation officers, and probably prison governors also, may see ‘success’ as their charges not returning to a life of crime. Of course, each one of these integral parts will say they don’t view ‘success’ in the way I have suggested: the Crown Prosecution Service, for example, will try to suggest that ‘success’ is in ensuring only the guilty are convicted. This overlooks the fact that they are not ultimately responsible for that outcome; a jury or bench of magistrates are, and all the CPS can do is ask itself ‘is there a reasonable prospect of conviction of person X on the evidence we have’ and, if so, try to secure a conviction against them; otherwise why bring the case? It can be seen that the criminal justice system really is not an interlocking mechanism of parts all vital to produce a successful outcome. It is a smorgasbord of bodies and people who have different aims, different interests, and who have different primary outlooks on what counts as a ‘success’.

I would liken the criminal justice system to a pantomime horse. It is a combination of parts, none of which quite know what the other is exactly doing, or more importantly why. What holds it together and provides it with some semblance of cohesion is a great brown big cloth, designed to create the illusion of a horse. The reality of course is that we all know it isn’t a real horse but is just doing an impression of one. All we need to do is suspend our disbelief for a while and our imagination can do the rest. For a time, the two people bent double under the cloth and moving on stage are a horse.

As I mentioned in Part 1, there are plenty of people who will try and convince you that the criminal justice system, as it may be traditionally understood, is based on Judeo-Christian values. For a variety of reasons that I need not go into, I don’t subscribe to that particular piece of casuistry. I do, however, concede that there is one element of the Judeo-Christian tradition which has been the bedrock of the criminal justice system for many centuries, namely that individuals have been born as moral free-agents, possessing absolute free will when it comes to thought and action. The Judeo-Christian theology, which has permeated every part of the life and culture of England and Wales, again for many centuries, is predicated on the notion that everyone is free to think and act as they wish. Moses came down from Mount Sinai with a list of ten holy commandments, among them several ‘thought crimes’, including coveting your neighbour’s goods and his wife. The last two parts of this series have attempted to provide cogent reasons why thoughts are out of your control, and why you cannot be ‘blamed’ for them. And yet our entire system of ‘justice’ rests upon assumptions about human nature, and principles carved out of stone by the finger of God on a mountain several thousand years ago; namely the notion that you can control your thoughts, and your actions (and I will return to address that in a later part), and that if you don’t you will receive punishment, and the moral outrage of your fellow citizens. We have allowed Bronze Age assumptions to journey with us unthinkingly through thousands of years, never putting the bags down long enough to ask whether they actually reflect what human beings really are and how they really operate, within the context of how best to protect society from ‘harm’.

Borrowing from the publication that brought us Moses and the holy commandments for a moment, in Matthew 7:24-27 we are taught the parable of the wise and foolish builders. Essentially, if you build your house on a foundation of sand, sooner or later it is going to be found out by an influx of water. I have long argued, rather like Noah, that the rain is coming and that eventually the cracks in the ‘criminal justice system’ will be too large to ignore. If the ‘system’ is predicated on a premise that is false, the conclusions will be flawed and the outcomes will not be ‘justice’. If free will is the illusion I contend it is, then ‘punishment’ is futile, and indeed the very word becomes meaningless. This is not to say that society does not need either laws or procedures in place to both protect its citizens and, wherever possible, to remove as far as possible the risk of those who have caused harm from doing so again. But if free will is an illusion, we need a new approach and a new vocabulary for the reality we actually face, rather than continue to suspend our disbelief and seeing the pantomime horse as the real thing.

Very few people want to lift this particular stone for fear of what they might find underneath. It is far easier to keep holding the security blanket of history and the overarching, but rationally and scientifically threadbare, beliefs which now seem ingrained into our psyches. So instead of asking ourselves what this ‘system’ is trying to achieve, and by extension asking ourselves how we are going to achieve it, we just ignore the issue and carry on, but in an increasingly frenzied way. What ‘justice’ meant for the Blair administration, for instance, was to pass some three thousand new criminal offences in a nine year period. During this ‘law-fest’, activities such as selling grey squirrels and impersonating a traffic warden became criminal offences. Had a law been passed making it compulsory for traffic wardens to impersonate human beings, I might have had rather more sympathy. But the prevailing attitude now for some time has been to increasingly regulate people and their behaviour by the creation of criminal offences, to the point where you begin to ask yourself whether the true intention is to ensure that everyone secures themselves a criminal record sooner or later, with all the baggage that brings with it. What is really needed is to ask ourselves ‘what are we trying to achieve by doing this, and what is the best way of doing it, based on hard realities and a true assessment of ourselves as human beings?’

And if free will is an illusion then, as I have suggested, ‘punishment’ becomes futile, and we need to look afresh at what we are trying to achieve in each individual case. We send people to prison, only to find out they are released and ‘reoffend’. According to statistics released by the Ministry of Justice in 2013, one in four ‘criminals’ reoffend within one year, committing five hundred thousand offences between them. For those leaving the prison system, the reoffending rate was 47.2%. Is this meant to represent ‘success’? Bearing in mind the statistics are not broken down by individual offences, it is hard to know how many of these ‘reoffenders’ fall into the category because they sold a grey squirrel or acquired a fetish for traffic warden uniforms.

What religion and the criminal justice system have in common, for sure, is that they both rely on faith to survive. As long as you have faith that what you see is a horse, you will ignore the brown cloth and cardboard face and continue to try to feed it a sugar lump. What is not so sure is how much longer faith can be maintained in the face of the overwhelming evidence that the ‘system’, from first to last, is deeply flawed and operating against the very thing it should be doing, namely protecting the public.

Mark Fletton is a former barrister, a hardened and devoted Sheffield Wednesday FC supporter. He is now a writer/researcher and lives in Exeter, Devon.

PRISON CRISIS? YOU CAN SPRAY THAT AGAIN

This week Justice Secretary Chris Grayling has been defending himself against further criticism that there is a prisons crisis. A little over a week ago Nick Hardwick, the Chief Inspector of Prisons, told the Independent newspaper that overcrowding and staff shortages were directly related to the growing number of suicides in prisons. The very body which represents prison governors have said that staff shortages mean that it is impossible to run a safe and decent prison regime. The Howard League for Penal Reform has calculated that prison officer numbers dropped by 30% between 2010 and 2013, while the prison population has continued to increase. Attacks in prison are increasing, assaults on prison staff are increasing, and the prison service’s riot squad was called out two hundred times last year, a sixty per cent rise on the previous year.

In terms of the rise in prison population, Grayling puts this down, in part, to what he calls ‘the Savile effect’; the courts are now imprisoning more sex offenders and particularly historic sex offenders. Andrew Neilson of the Howard League, however, claims that the real driver is that remand in custody is being overused, alongside the fact that sentencers are being influenced by, and responding to, contemporary political rhetoric from the government about being ‘tough on crime’. Grayling’s response to this most recent spate of criticism looks more and more as though it is based on sticking two fingers in his ears, humming loudly and hoping that he can keep a lid on the crisis, at least until the next election when the problem will either no longer be his, or alternatively he’ll be in another government post.

In March 1996 a young man called Simon Sunderland appeared before His Honour Judge Robert Moore at Sheffield Crown Court, and was sentenced to five years in prison. He hadn’t burgled or robbed anyone, glassed anyone in the face, or committed any sexual offence against sheep or other livestock. Although many citizens of the ‘Steel City’ applauded the sentence, even the man who hunted him down and brought him to justice said at the time “I hate to think of him rotting in prison.” The crimes for which Sunderland, who at the time went by the moniker ‘Fista’, was incarcerated related to his activities as a ‘graffiti artist’ and were all charged as criminal
damage.

Don’t get me wrong. I am not for one moment saying that what Sunderland did was not, or should not be, a criminal offence. Francis Butler, the councillor who led the hunt for ‘Fista’ over a five year period, said at the time “No one living outside of Sheffield can imagine the chaos he caused over the years. He painted on everything: walls, public buildings….street signs, even a bus that had broken down.” As fast as the council cleaned off the graffiti, ‘Fista’ would redecorate. As I indicated earlier, Mr Butler felt no sense of triumph in the sentence. He said “My own personal view is that I imagine he had already learnt his lesson by the time he came to court.” Councillor Pat Midgeley felt that the sentence sent a powerful deterrent message, saying “This sentence should stop people in their tracks. It shows what people are beginning to think about public order offences.” At this point, it should be said that ‘Fista’ did appeal his sentence, having it reduced to 21 months by the Court of Appeal. Nonetheless, it would be hard to deny that Sunderland surely must have been made to suffer for his ‘art’. No sane person wants their liberty taken away, do they?

Except that, for whatever reason, prison did not deter Sunderland. Having been released from prison, he found himself back before the courts in 2002 for similar graffiti offences involving two bridges in Barnsley (although I would have thought that any attempt to add colour to Barnsley ought to have earned him the freedom of the town in any sane society). On Friday this week, Sunderland, now 41, is due back again before the Sheffield Crown Court for sentence, having admitted numerous further offences of damaging railway property in Sheffield, Rotherham and Chesterfield in 2009 by way of graffiti ‘art’.

In an excellent and thought-provoking article in the Guardian newspaper this week, Simon Jenkins said “The British are prison addicts. We scour the country for reasons to imprison. We jail for not having a television licence, for Googling in jury rooms, for smoking cannabis, for hacking a phone…”* The point he makes, in a nutshell, is that this is not a ‘prison crisis’ but one in our courts and parliament. We live in a culture which seems to have prison as some kind of all-encompassing answer or antidote to every ‘anti-social behaviour’ hard-wired into its DNA. That is all well and good if you also have a society which is willing to spend whatever it takes to build prisons and staff them appropriately. But if you want to keep imprisoning people, or remanding them in custody, and you are not prepared to allocate sufficient resources, then you are going to be sitting on a ticking time bomb so far as the prison population is concerned. If you want to send someone to prison because they can’t seem to stop rambling ‘in the buff’, well, you have to provide the resources to keep them locked up. But of course the reality is that the government either can’t, or won’t, allocate sufficient resources to ensure both the physical space to incarcerate an ever-expanding prison population or prison staff to watch over them. The result? Grayling fiddles while Rome burns.

And in all of this, very few people ask the real question: what is prison meant to achieve? What has prison achieved for Simon Sunderland, for example?

In her 2008 memoir ‘How To Survive Puberty At 25’, Nina Bhadreshwar recalls an interview she conducted with Simon Sunderland, during which she asked him ‘What would stop you doing graffiti?’ To this, Sunderland replied ‘Having my hands chopped off.’ A five year prison sentence, albeit reduced on appeal, and further court appearances for similar matters has failed to prevent Sunderland committing further offences of criminal damage. What is the answer? Longer and longer prison sentences? Some would probably endorse the answer that Sunderland himself gave, and have his hands surgically removed, with or without anaesthetic. Or does the answer lie in the realisation that society has to be more creative, particularly in situations where nobody has been killed, nobody has been physically injured, nobody has even had their personal belongings stolen or their personal security threatened.

The stock response to Simon Sunderland’s case is to suggest that if he simply cannot stop spraying on buildings, bridges and walls, he will have to go back inside for longer and longer periods to ‘keep him out of circulation’. Is this really the best that society can do in the 21st century? One way or another, resources are going to have to be found: either to keep people like Sunderland locked away in a regime that satisfies the lust of those who think the answer to every ‘crime’ is to bang up the perpetrator for long periods of time, or to support creative and imaginative ways of responding to behaviours we deem ‘anti-social’. Sunderland is not a murderer, rapist, violent criminal, robber or house-breaker, but it is possible that in less than two days time he will be back in a prison system that is – in spite of Grayling’s denials – in a state of crisis, under-resourced and with no clue as to what it is really now trying to achieve beyond the will of political masters whose interests really are no more than being re-elected. Is this really the best we can do?

*”How can Chris Grayling deny our prisons crisis?”: Simon Jenkins, 19th August 2014 http://www.theguardian.com/commentisfree/2014/aug/19/chris-grayling-prisons-crisis-inspectors-overcrowded-violent-jails

 

Mark Fletton is a former barrister. Now a writer and researcher, he lives in Exeter & is a hardened Sheffield Wednesday (amended after suitable bollocking) supporter.

SHOW OF FORCE: Search for justice in naming a ‘suspect’ pre-charge

wave-of-the-hand

 

On the afternoon of Thursday 14th August 2014, police attended at a Berkshire residence to carry out a search of the property. They had apparently received a complaint from somebody and decided that searching the property was something that should be done in order to investigate the complaint. Nothing so unusual about that, you may think. After all, it is something that happens daily, up and down the country, when complaints are made to the police.

What happened in this case, however, is slightly more unusual. According to Amanda Platell in this morning’s Daily Mail*, the police admitted that they had confirmed to the BBC that they were going to search the property. Having received this information, the BBC then obviously do what any self-respecting national television station would do and turn up at the property to secure as much footage as they can about the ‘story’.

Amanda Platell may be a veritable bottomless pit of misplaced moral outrage but I suspect, rather like the broken watch that tells the correct time twice a day, she has probably hit upon an issue here which, in the interests of justice, needs to be addressed, and quickly.

The person whose home was being searched last Thursday is a ‘national celebrity’. That fact, obviously, secures him no immunity from the law and its processes. What it does do, however, is mean that in the event that ‘plod’ comes knocking at his or her door, it is going to arouse the interest of the media if and when they find out there is a criminal allegation being made against them. The bigger they are, the harder they fall, and the media has an economic interest in stories involving ‘celebrities’. And if these ‘stories’ involve allegations of some of the most detested and detestable human behaviour, the more interest there is going to be. The media know that the public is now almost seemingly intoxicated by the cult of celebrity, and will milk that for all it is worth.

The media, like all of us, are subject to restrictions on what can or can’t be said about a story like the one I have described above. Why not? Because in the event that the matter comes to trial, it is essential that the individual concerned can secure a fair trial by a jury who have not been influenced by extraneous material and by soaking up what is often little more than the groundless opinion of others. The legal process often involves, for example, applications being made by the defence for certain evidence to be excluded under statutes such as sections 76 and 78 of the Police and Criminal Evidence Act 1984 and others. The more the case has been discussed and commented on in the media, the greater the likelihood that the jury may become aware of matters which, if they are deemed legally inadmissible, they should not. The fairness of any trial is then thrown into doubt.

But the possible legal implications are not the only ones that are at play here. As Amanda Platell probably rightly suggests, the implications of how this particular story has been reported go beyond legal issues. It touches upon how we, as human beings, respond when we are told that an unnamed complainant has suggested the commission of a repugnant criminal offence by another, ‘celebrity’ or otherwise. Many of us may be able to look at matters such as this objectively, and say something like ‘Well, he (or she) is innocent until they are proven guilty’, but should we have to?

Anyone who knows me will know I am a hardened opponent of any but the most necessary legal regulations to ensure that society functions in a way which creates the most harmony for the most people, and in any event justice and fairness for all. What I question about what has happened since Thursday lunchtime, when this story broke, is why the person was ever named, or details of the search disclosed. The inevitable media frenzy creates potential injustice and unfairness, and an atmosphere in which an individual (whatever the eventual outcome) has had his or her reputation brought into the public spotlight for examination.

None of us should engage in any kind of comment or speculation in relation to the individual concerned. Although we all now know who it is, I have deliberately refrained from using his name, and the only reason for mentioning the incident at all is because it highlights something I suggest we need to address now, particularly bearing in mind the ongoing police operations and enquiries into serious allegations of child abuse by ‘prominent’ people.

I have two questions arising out of all of this. Firstly, should the name of anyone who has not been charged with a criminal offence ever be made public in relation to an ongoing criminal investigation? Whilst in the vast majority of cases, the press have no interest in reporting pre-charge (or even post-charge) criminal cases, I suggest that cases like this serve only to run the risk of blighting someone’s reputation unnecessarily and increase the prospects of a trial being rendered unfair. Secondly, should the name of an accused person after being charged with a sexual offence ever be made public prior to conviction? This is, perhaps, the more debatable issue, bearing in mind it cannot be denied that releasing limited details of the name of an accused and some information about the charges may lead to other victims coming forward and making the case against him/her more compelling.

As I invite responses to these questions, I make one appeal. Please do not mention the name of any individual who has not been convicted of any criminal offence. It is not necessary to make your point, and the questions are aimed at stimulating a debate about the general issue, and not specific individuals.

* ‘Cliff Doesn’t Deserve This Lurid Trial By Television’: Amanda Platell Daily Mail 16th August 2014: http://www.dailymail.co.uk/debate/article-2726393/PLATELLS-PEOPLE-Cliff-doesnt-deserve-lurid-trial-television.html

 

Mark Fletton is a former barrister. He is now a writer/researcher and lives in Exeter.

SPEAK NOW OR FOREVER HOLD YOUR JUSTICE OF THE PEACE

4049027362_27e012ae10

 

Until last week, Abid Sharif was a magistrate who had been appointed to the Burnley, Pendle and Rossendale bench in Lancashire. Following an investigation by the Conduct Panel, Mr Sharif was removed from the Magistracy with the approval of the Lord Chancellor and Lord Chief Justice.

The Conduct Investigation into Mr Sharif was in relation to comments Mr Sharif had made to the press* , including the allegation that what he described as the “slap on the wrist” justice system threatened to make vigilantes of householders, that police cutbacks were “crazy”, and apparently that criminals knew more about human rights law than their legal representatives.

On the face of it, Mr Sharif was just the kind of ‘ordinary bloke’ that many people would want to see more of in the magistrates’ court. He is a bus driver and family man, and far removed from the type of stuffy middle-class image that many have of those who sit on magistrates’ benches up and down the country. And in many ways, Mr Sharif was simply expressing views that may well be shared by a substantial number of people up and down the country. So what, exactly, was the problem here?

Well, firstly, Mr Sharif had been the recent victim of a domestic burglary himself where those responsible had stolen some £10,000 worth of electrical items and his wedding ring. Mr Sharif told the press that had he confronted the perpetrators in flagrante delicto and used force to confront them, then he would have been sent to prison for assault. He said “If I had been in my house when these people came in and I had knocked one of them out I would be inside for assault and I don’t think it’s fair.”

In some ways I feel a little sorry for Mr Sharif. On the one hand he was simply displaying his human nature openly, and for all to see. He was honest enough, in the light of what is the obvious trauma of having your home and privacy invaded and personal items taken, to express how frustrated he felt. If he had not been quite so honest he would perhaps have held his tongue, and would now still be sitting in Burnley, Pendle and Rossendale – but still harbouring all these opinions that he publicly aired. And in that circumstance he would, of course, still be sitting in cases involving burglaries, day in and day out, which according to the press report occupied in his experience a good part of the court day.

It is clear that what Mr Sharif said creates an issue in relation to his suitability to continue to sit. At the end of the day, all parties to a criminal case need to know that those who are deciding their guilt, and their punishment, are as free from personal bias against them as possible. Can anyone really say that if they were to appear before Mr Sharif accused of burglary any time soon they would be expecting a fair trial?

Mr Sharif was clearly frustrated by many things, from police response times to incidents, to the powers of householders to protect their homes, to the powers that the law gave him and other magistrates to deal with those who came before him. I don’t doubt that many lay magistrates up and down the country share his sentiments and frustration. It is simply that those who play the game and keep their frustrations to themselves are still sitting in judgement on those that come before them, and Mr Sharif has surrendered to his humanity and told us explicitly what we already know: that the criminal justice system in this country is a source of frustration and is, frankly, in a bit of a mess.

* The original press report is to be found at http://www.telegraph.co.uk/news/uknews/law-and-order/10610025/Magistrate-warns-of-Britains-slap-on-the-wrist-justice-system.html

About the author: Mark Fletton is a former barrister.

GETTING THE CRIMINAL JUSTICE SYSTEM WE CHOOSE Part 2: ”Think of a number……any number”

At the conclusion of the opening part of this series, I posed a question. If you got the right answer I hope the elation derived from that fact alone will be sufficient, as no prizes were being offered.

If we are agreed, as I suggested in Part 1, that there are certain aspects of our lives, existence and bodies over which we can demonstrably be shown to have no control whatsoever, let me now go a little deeper and suggest –before we even get to the science of the matter- that you really have no control over another integral part of your make-up; something that may make you a little more uncomfortable and, probably, defensive. I am going to suggest that not only do you not have any control over things such as your DNA and genetic make-up, and your date, location and place of birth, for example, but more importantly –and possibly from your point of view, more worryingly- you do not have any control over your thoughts either. That’s right. Let me say it again. You have no control over your thoughts.

I would like to claim the credit for this seemingly radical proposition, but I cannot. In his recent book “Free Will” (2012, Free Press), Sam Harris explores some of these themes in far more depth and far more eloquently than I can hope to do. What I hope to do, however, is blow some of the intellectual froth from the surface and at least stimulate you in a direct way to consider something intimate to yourself: your own thoughts and thought process. What has this to do with the criminal justice system? Plenty, I will argue.

But first, another challenge. Think of a number……..any number. It can be any whole number you choose from 1 to, well, the highest number your mind can possibly envisage. That should give you essentially an infinite choice and, in that regard, I suggest I am giving you the freest choice you will ever get in your entire life. Look at it this way; in the coffee shop, my supposed choice was limited, not so much by the size of the display board as the stock the coffee shop had. If, for example, I had asked for ‘Deadly Nightshade and Guacamole’ flavoured tea, I suspect I would have presented the barista with a challenge she could not have risen to, at least for several days. Even my choice of exotic beverage, whatever it may be, would eventually be exhausted by the fact that all resources on the planet are limited. There are only so many possible choices of ‘tea’ I can have, thanks to nature’s limitations. So the choice I am offering to you, literally any number from an unlimited number of possibilities, must be as good as you will ever get in terms of a free choice.

So, have you chosen yet? Take your time; there really is no hurry. If you want to go and get a cup of coffee, or even have a holiday abroad specifically to consider this very matter, please go ahead. I will still be here waiting. I want to do nothing to limit your freedom to choose. However long you have taken –again a totally free choice for you- let me assume that you now have chosen a number. I say immediately that I am not a mind-reader, so I don’t know what number you have selected – and once again, no prizes are involved. It could have been any number.

Now try again, but this time focus on your thought process. Think about how, and what, is happening in your mind in the process of choosing any random number.

Now, I don’t know what number you are thinking of, and it really does not matter. For argument’s sake, let’s say you have selected 65. Now let me ask you: why did you alight on that particular number? Focus on your thought process. Perhaps you are sixty-five years old, or have sixty-five pounds in your bank account. Was the number you chose significant for any reason you can understand or make sense of?

But even if you had ‘65’, or whatever number you actually chose, lurking somewhere in your conscious mind, why choose it? I mean, you had infinity to choose from. While you were considering your selection the second time, did the number 346 ever feature in your conscious mind, for example? Or 34,987? Or 3? I could go on and on suggesting numbers which you could have selected, but didn’t; numbers which you obviously knew existed and could possibly have alighted on, but which never presented themselves consciously to you. The fact is that any number, from 1 to infinity and beyond were available for you; and almost all of them, I can guarantee, were ‘eliminated’ from your decision-making process with no thought of your own whatsoever, because your mind never brought them into your consciousness. If that is the case, and I suggest it is, how could you ever have been ‘free’ to select any of them? They just never materialised; for whatever reason, your brain, your mind just refused to offer it to you for consideration. And was the reason it failed to do so any fault of yours? And could you have done anything about it anyway?

Let me go further. What is the next thing you are going to think? You may answer ‘Well, I am reading this, and this is what I am thinking about’, which is a fair comment. However, have you ever noticed how things just ‘pop’ into your mind without you ever, literally, ‘thinking’ about them. Maybe for some reason you have just remembered as you were reading that you left the iron on in the kitchen, or that you forgot to post a letter to your sister, or you ask yourself ‘Why is he using that font?’, or any one of an infinite number of random ‘unthought’ thoughts. Where did those thoughts come from? And have you ever been talking to someone, listening to whatever they are saying, and then thought to yourself something along the lines ‘You look just like Bill Clinton’. Where did that thought come from? You weren’t inviting it, you weren’t expecting it; it just ‘happened’, out of the blue, from nowhere. It simply ‘pops’ into our consciousness, and we are powerless to prevent it. Now focus on exactly how many times a day this happens. And focus on the process by which it happens. Your thoughts, in terms of what you think (by being brought into your consciousness) are out of your control. They either happen by some process of ‘cause and effect’ or they are utterly random; but either way, you have no control over them. This was my reason for posing the question I did at the conclusion of the last part: I suggest that you had just as much chance of guessing what I was going to write next as you had of knowing what your next thought would be, and had as much control over it.

Before going further, let me make a concession at this point. You may say ‘You have a point about that, but once the ‘thought’ is brought into your consciousness, then you have a free choice about what to do with it.’ I will return to this in another Part. At this point, however, if you concede that what ‘pops’ into your consciousness, a ‘thought’ is something you are powerless to control because it is essentially given to you by your brain/mind, it is then ‘there’. It is a thought, and something you cannot either prevent or control. Try telling yourself not to think about something; in telling yourself, you are proving you are thinking about it, and if it remains in your mind (and for however long) it will not be down to anything you can consciously do. And if you forget it for a while, you will never stop it coming back in, when your brain/mind slides it back in to your consciousness.

Thoughts are personal. Thoughts are private. They are the essence of what makes us who we are. They, like numbers, appear to be infinite. We are told thoughts can be ‘positive’ or ‘negative’. They can be dominated by emotions, which can be affected by all manner of things from mechanical (misfiring synapses in the brain, for example) to personal experiences. They are the ‘holding pen’ of our essence; sometimes we express them to others and sometimes we do not.

I once knew someone who didn’t like ‘black people’. It didn’t matter where they came from or what their personality might be. I once asked him why he thought like that. He didn’t even give me time to finish the sentence before providing me with a seemingly endless list of reasons, none of which I really need to rehearse. However, in summary, he just thought ‘black people should go home’. That was his ‘thought’. As he spoke, whatever part of my being that responds to things I strongly disagree with was being activated, and the thoughts that began to appear within my ‘conscious mind’, from wherever they came, created the strongest sense of negativity within me towards him. Again, from somewhere, my conscious thoughts were primarily directed towards labels: racist, bigot, intolerant, and so on. I didn’t ask those particular labels to flood my conscious thoughts; they just ‘popped in’. I didn’t think of a list and choose them. It was only, much later, that I began to ask myself –again for no reason I can explain, and can therefore take no moral credit or responsibility for- whether if I myself could not control the responses that my mind was bringing into my consciousness at that moment, could he for the things that were ‘popping’ into his? My immediate feelings were being presented to me from, I would suggest, internal and organic workings of my brain, for which I am not responsible, and programming and conditioning throughout my entire life to that point – again something for which I was not responsible. I wasn’t actually ‘choosing’ to experience the feeling of despising his ‘thoughts’ for any better or more morally superior reasons than he was ‘choosing’ to have them brought into his consciousness. In fact, I realised that if I had been born when he was, with his DNA, his mother and father, his life experiences, and every atom and molecule of my body was switched for his, it would be me who was saying these things; and would I be in any way culpable for that?

I also realised that if, by dint of circumstance, I had been born with a different set of genes, whereby my skin was no longer a (hopefully) healthy shade of pink, but brown or black, and I had been sat opposite the man I have just described, what he said to me would almost inevitably have amounted to a ‘hate crime’ under the laws of this country; something for which he could be arrested, detained against his will, prosecuted and punished for. Of course, you may say that even if he couldn’t help his thoughts, for all the reasons I have suggested, he could have held his lips together and said nothing. I would contend, for reasons I will later outline in greater detail, that whether he would have done is something he was not free to choose; but even if he was, there is the issue of whether it is in any way justifiable to criminalise his ‘freedom’ to simply express thoughts which he cannot control, however unpleasant we may consider them to be.

In the next part I am going to suggest going out of our minds for a while and taking a closer look at how some of this connects with the criminal justice system.

Part 3: “The philosophy of the criminal justice system: ‘I think, therefore I am……..guilty?”

GETTING THE CRIMINAL JUSTICE SYSTEM WE CHOOSE Part 1:”Where there’s a (free) will…….”

Smiling barista: “What can I get for you today?”
Me: “Okay, what have you got?
The smiling barista points helpfully to a large board just behind her head, containing a generous list of beverages under a variety of headings. My eyes scan the board. After a few moments I’ve made my decision, and a peppermint tea is “Coming right up!”
What is unusual about this scenario? Absolutely nothing. Every moment of every day of every week choices are being made by every one of us. And these choices are made, I am going to suggest quite literally, without us even thinking about them.

Almost every area of our life, our society, politics, religion and much more besides is based squarely on the assumption that we as individuals have freedom of choice, freedom of thought and freedom of action. The Judeo-Christian theology, and the ‘morality’ that religious enthusiasts are so often quick to remind us is the basis of our morality, our society, and the foundation of the laws that operate within it, rests entirely on the premise that we are ‘free moral agents’; that we are free to think and act as we choose, and that if we choose ‘wrongly’ consequences –in the here and now and, for the religiously-minded, the eternal- will follow. The ‘democracy’ that we are so often reminded to cherish is likewise based upon the premise that every five years we are free to enter a polling booth and place a cross against the name of someone from among a list of candidates to represent us in the legislature, and who will (on our behalf) engage in debate, frame and then vote to enact the laws which we all must obey or face the consequence of punishment. And of course, the criminal justice system is based on the premise that we are all free to think and act as we choose, and that if we choose to act in a way which infringes criminal legislation we can be arrested, detained against our will, charged, tried and (if found guilty) punished in a variety of ways which can range from being deprived of our liberty to the simple fact of having a conviction recorded against our name, which carries with it both stigma and potential discrimination against us by others, thereby affecting and limiting our ‘life-choices’. The criminal, we hear, ‘deserves’ punishment simply because he or she freely chose to behave in a way that the law, whatever law, does not permit. But what if this ‘freedom’ to think, to act and to choose is actually illusory? What would this mean for the criminal justice system which, as I have suggested, is fundamentally premised on individuals having what we call ‘free will’? And what would, and should, it mean for our attitudes towards others more generally?

It would be easy to react to this by responding that this is a debate for philosophers sat in some ivory tower over a bottle of sherry. The fact is that this is exactly what philosophers have done –with or without the sherry- for centuries. The issue of ‘free will versus determinism’ has been the subject of metaphysical enquiry, in one form or another, for thousands of years, and in spite of the intellectual weight of those participating in it, the fact that the metaphysical debate remained unresolved and was still the subject of philosophy examination questions in elite universities probably cemented the not unreasonable view that there was no definitive answer. And if there was no definitive answer, who really would feel compelled to regard themselves as anything other than being able to think and act as they chose? Do you want to consider yourself anything other than free to think, act, choose and live as you want? ‘Freedom’ is an evocative word; something to be sought, to be fought for, to be argued for, and even to die for. You may now be thinking that you are free to stop reading. Part of me wants to say to you ‘well, feel free’, but I suggest the reality is that whether you stop reading or not is not something you are really ‘free’ to do. And for that reason, if you do stop, I should not, and would not, feel any offence whatsoever. This is something I will return to later in the series.

The problem for the ‘freedom fighters’ in this debate has intensified in the past few years. What was once an academic metaphysical debate with no real possibility of ever arriving at a definitive outcome is now being invigorated by the intrusion of science; more specifically neuroscience. Where once upon a time fanciful debates over sherry generated little more than heat (some may say warmth) on the subject, science is now throwing much more light on it. Just what science currently has to say on the issue will be the subject of a later post in this series. The point perhaps to make here, though, is that where we could once sweep possibly uncomfortable propositions under the carpet because they could be labelled as subjects of philosophical debate is now not so easy to do, and that if we try to do that, the bulge under the rug will, sooner or later, demand our attention anyway. Science deals in cold, hard facts and is stubbornly resistant to all forms of human prejudice and preconception. And if what science currently has to offer us on this issue is right, or may be right, I am going to suggest that we are going to have to rethink many of those prejudices and preconceptions, including such fundamental things as the very nature of the laws we pass, why we pass them, just what purposes those laws are intended to achieve, how it is they can achieve those intended purposes, and the nature and purpose of punishment, among others. Put simply, if our criminal justice system is based upon the premise that we are free to choose whether we break laws or not, and this premise is (or may be) wrong, how can we justify it? And if we refuse to reconsider these things in the teeth of a truth we simply will not confront, our criminal justice system will remain unjust by definition, as it will be based on an illusory premise.

I know some readers are now already raising the defensive barriers and muttering things such as ‘of course we have free will. What is this idiot talking about?’ They may be looking back at the opening paragraph and suggesting that when I was stood in the coffee shop, looking at an array of options, I had perfect freedom of choice. I could have chosen anything and was free to do so: a Cappuccino (with or without cream), Latte, Mocha, Americano, and pretty much any variation on any of those themes. I could even have told the barista to mix up an iced lemon tea with a shot of espresso and a dash of tomato ketchup, if I’d chosen it. And, by extension, you may say, almost anyone can freely decide whether they are going to steal a purse out of a handbag when they see it – or not, as the case may be. If they decide to slip their hand in and ‘have it away’, that is their choice, and if they get caught, well, they will take the consequences of their actions.

In concluding this part, let me simply offer, by way of an opening gambit on this issue, something that we can maybe all agree on. There are innumerable aspects of our lives – and I would (and will) argue that these are fundamental to much of what makes us up as human beings and shape our ‘choices’ – about which we clearly have absolutely no choice whatsoever. You have not had (and never had) any choice – conscious or otherwise- over most of what makes you up. You didn’t choose when, where, or in which society, culture and/or religion you were born. If you were born into a religious family, you didn’t choose the basis of that religion, the principles it advances, or the expectations it makes of you. You didn’t choose your parents, or the genes you received from them. You didn’t choose your eye colour, skin tone, height, body shape, or hair colour. Born ‘ginger’? It wasn’t your fault, and you had no choice in the matter; but how many of us have personal recollections of the kind of relentless (and unchosen) baiting the ‘ginger kid’ got in the playground and elsewhere, let alone the effects (again unchosen) that this may have had on him or her. You didn’t choose any of the characteristics or experiences each of your parents brought to your upbringing and instilled in you on a daily basis from birth; in fact, you didn’t choose if your birth parents gave you up for adoption and (if so) the situation in which you found yourself growing up. You didn’t choose your pre-school or nursery contemporaries (who brought with them all the things they didn’t choose, either), the schools you went to, the other children who just happened to find themselves at that institution at the same time you did, or the teachers who you came into contact with. I could go on and on with this, but you get the point. For most of your young life, at the very least, your choices were not your own, your mind was immature, still forming, and influenced by things, most of which you didn’t choose or have any possibility of influencing.

Before you run away with the idea that I am saying that anything I mentioned in the previous paragraph amounts to a conclusive argument for the proposition that your actions should not have consequences, both as individuals and within the wider society in which we all have to live, I am not. Those matters I mentioned are nothing more than a list of things we (hopefully) can agree are not matters of free choice, by and large. As I stood in the coffee shop, looking up at the board, did I choose the fact that my taste buds (which I had no part in choosing) simply reject any kind of coffee, and that I would rather drink a gallon of road tar than a cappuccino? Did I choose the fact that at that moment I wanted a hot drink rather than a cold drink, or ever consciously consider why? In those circumstances, was I ever really ‘free’ to choose to act to buy a cappuccino or a glass of water as a ‘free choice’?

And here is a closing thought. What am I going to talk about in the next post?

Mark Fletton was a practising barrister for seventeen years, and is now a writer/researcher, living in Exeter, Devon.