July 27, 2020   5 mins

Criminal barristers speak of being “often asked” how we can defend someone we know is guilty. The answer, we explain with varying degrees of pomposity, is that we never really know: the verdict is for the jury, and the advocate is only concerned with the evidence — and what can or cannot be proved beyond reasonable doubt.

Which is all very well, but actually sort of nonsense. Yes, clients almost never confess while fighting a trial — and when they do the advocate will usually have to step away from the case. But the best answers to many tactical decisions, including how to cross-examine the other parties’ witnesses, vary according to the likelihood of guilt. A wise barrister will keep an eye on it.

And the truth is that defending an almost-certainly-guilty man can sometimes be difficult and unpleasant at first, depending on what he is supposed to have done. The early clouds of moral judgment tend to evaporate, though: feelings can be made to follow action, and there’s nothing quite like going in to bat for someone to make you realise that, deep down, they’re actually not so bad.

This is how criminal barristers of all political stripes come to inhabit, at least while they’re at work, an unusually non-judgmental shared moral landscape. You could argue about whether this tendency is best characterised as enlightened or psychopathic, but either way it’s why there is such limited enthusiasm in Crown Court robing rooms for the latest bit of knee-jerk canting from Home Secretaries and Justice Ministers.

Chris Daw QC is no outlier in this regard. His short new book, Justice on Trial: Radical Solutions for a System at Breaking Point, which is aimed at a general audience, does not suffer moralising lawmakers gladly. Policy announcements with judgmental overtones are variously described as “grandstanding nonsense”, “populist garbage”, “brazen ignorance”, “idiocy”, and so on. Indeed, it’s probably fair to say that there are few things Daw dislikes more than moral judgment. A late chapter draws to a conclusion with the following:

I see these men and women, some grey and ashen from decades ‘behind the door’, others fuelled with anger, drugs and resentment, and I just cannot bring myself to judge them evil. I cannot place them in a cage marked ‘outsider’ and draw comfort from my own superiority, just because I am not one of those designated by society as ‘criminal’.”

One might cavil about moralising against moralising, but the sentiment is respectable enough. We are not the architects of our own characters; the extent of our inclination towards criminality is not something we have much — or perhaps any — control over. But even if we go full Sam Harris on Free Will and accept that every choice we make literally could not have been made any differently, we are still left with a lot of rapists and murderers that need locking up. So, what to do?

After a potted history of crime and punishment (the Romans, Magna Carta, witches) Daw embarks on the first proper chapter of four, “Why we should close all prisons”. Last year’s shocking report from the Chief Inspector of Prisons is briefly quoted — “The blood of another prisoner, who had self-harmed two days previously, had not been cleaned from the cell floor
 Rubbish was left lying around in bags and there were problems with fleas, cockroaches and rodents” — but the meat of this part of the book is derived from a visit to a grim County jail in Alabama. While Daw may be right in saying that’s where we’re headed if we’re not careful, he does lay himself open to avoidable accusations of straw-manning, since powerful evidence is available closer to home.

That aside, while apathy towards prison conditions — and even towards its effects — is commonplace, few who take an interest in the subject could claim we are currently in the Goldilocks zone. But the question remains, how should we do things differently? Like the Scandinavian countries perhaps, whose well-funded, non-violent and rehabilitative systems are mentioned with approval? Not quite. The peroration begins as follows.

“I believe that the answer is simple. We should close down all prisons and start again. For the vast majority of inmates, locked up for non-violent crimes, incarceration [
] – without question – increases rates of recidivism.

Non-violent criminals should never be sent to a prison of the kind that we have now. All of the Victorian and other traditional institutions, designed in a bygone age, should be closed down and turned into entertainment complexes or apartment buildings. Or razed to the ground once and for all.”

But does incarceration increase rates of recidivism “without question”? Compared with what? Never arresting anyone for anything? I’d be surprised if a judge could be persuaded to carry out a randomised controlled trial on the point, but I can’t help but suspect that, as Tom Chivers in these pages occasionally observes, it’s a bit more complicated than that.

Daw’s much-trailed “radical solution”, to replace all the closed-down prisons, is then revealed: “Leave those convicted of most crimes in their own homes
we have the technology to monitor every breath, every heartbeat
” A visit to a London security Expo is described, and reference made — with what degree of approbation it’s hard to tell — to “a smiling and enthusiastic Chinese saleswoman, whose technology was by far the most sophisticated on display”.

“There is no doubt”, Daw goes on, “that we have the technology to provide a ‘virtual prison’ environment for every person who has become embroiled in the criminal justice system, which would allow an unlimited variation of restrictions and permissions so as to cater for each individual.”

Quite apart from the fact that a criminal’s home environment will often contain its own collection of crimogenic influences, even if we do find ethically palatable technological solutions to replace some prison sentences we are still left with the problem of the rapists and murderers. Daw finally concedes that something with a “secure perimeter” is required, perhaps containing “shared houses”. “Prisoners would have access to medical care, addiction and mental-health services, counselling, and the opportunity to engage in productive work and education.” A properly funded prison, then. Is this really so radical?

Still, Daw is right to call for something different. Our prison system is a product of tradition and inattention, occasionally buffeted by politicians’ whims and their sometimes well-meaning attempts to appease angry voters. Perhaps the best proof of its current irrationality is its inconsistency.

A great deal of time and care is taken (still, just about) to ensure that a defendant is dealt with fairly and effectively from arrest to sentence, including much ink spilled over precisely how many months the sentence should be. But what he is actually then subjected to — that is, the aim of the whole endeavour — varies wildly according to geography and ever-shifting political expediencies. The newly convicted could get anything from rats and sexual violence to mere books-and-boredom.

Nevertheless, even if the custody bit were to be consistently applied, we still have to decide what prison conditions should be. Which would require us to consider what prisoners are actually for.

There’s incapacitation, of course. Taking criminals off the streets does have some effect, though research suggests you have to lock up an awful lot of people to achieve a relatively modest reduction in crime. Then there’s punishment, which Daw claims is an “illusory notion.” It’s hard to argue with the parents of a child killed by a drink driver — or the children of a pensioner defrauded of life savings — who tend to think the culprit should have at least a slightly hard time. People want criminals to be rehabilitated, yes, but it’s not the only thing they want.

Lockdown may have a lesson to teach us here. Even the substantial minority who opposed it complied with this extremely onerous restriction — not due to the vague possibility of a sixty quid fine, but because of social pressure and the threat of public humiliation. A fresh look at crime reduction could experiment with a bit of this; but ultimately I suspect we’ll stick to the punishments we’re used to.

And yet Daw’s “radical solutions” are offered just as the terms of reference for the first Royal Commission on Criminal Justice since 1993 are being fixed. We can only hope that prisons, and punishment more generally, are within its remit. How radical an overhaul the system needs isn’t obvious, at least not to me, but it’s certainly time that some proper attention were paid.

Adam King is a criminal barrister at QEB Hollis Whiteman.