On 5 August 2020, the BBC reported leaked excerpts from a forthcoming report by independent investigator Vicky Lawson-Brown into abuse of women and children within the ‘Jesus Army’ or ‘Jesus Fellowship’.
Established in 1969 at a chapel in Northamptonshire, the Jesus Army grew quickly, drawing in the homeless and substance misusers, among others, to live in tight-knit households and communities.
Members worked in the church’s many businesses and farms, often unpaid. Many recount an atmosphere of bullying, humiliation, severe physical and sexual abuse, particularly of women and children, who were seen as subservient to men in the group. Forty-three people who were active in the Church have been named as alleged perpetrators, including the founder, Noel Stanton.
Allegations of abuse were reported on a number of occasions to the group’s leadership. The report names five male leaders who failed to act on these allegations, and therefore, it is argued, were complicit in the abuse continuing.
Although the Jesus Army has now closed, the Jesus Fellowship Church Trust (JFCT) continues to manage a portfolio of properties and assets totalling tens of millions, many of which it has been seeking to divest in recent months. It is hoped that much of this money can be used to compensate victims financially: the Jesus Fellowship Survivors Association represents around 800 individuals.
Since the allegations of sexual abuse within the Catholic Church started to garner media attention in the 1980s and 1990s, a number of theories, notably focused on sexuality emerged: under scrutiny was the institution of a male celibate priesthood and an alleged disproportionate representation of gay priests and male victims. Yet these theories reflected widespread homophobia by inferring a link between homosexuality and paedophilia. (Tracing the emergence of the ‘paedophile’ as currently understood in Western discourse, Angelides (2009) argues that the category of the ‘paedophile’ was homosexualised in order to demarcate ‘normal’ from ‘pathological’ masculinities). Research in 2010 from Harvard Medical School states that, “it is generally agreed that pedophilia is a distinct sexual orientation, not something that develops in someone who is homosexual or heterosexual”. Symmetry or asymmetry between the gender of the perpetrator and the victim is separate to adult sexual orientation (if the perpetrator is attracted also to adults).
Moreover, since these early scandals, we have come to realise that sexual abuse can be found in state and non-state institutions across society: in the family, religious organisations, schools, hospitals, youth offender institutions, sports, or in residential care, to name a few.
Clinical psychologists and psychotherapists will provide detailed analysis of the profile and characteristics of ‘paedophiles’, but as a criminologist, my interest is in the social factors. First, feminist scholars have for decades been telling us that sexual abuse and violence is about power. It is perpetrated largely by males because we live in a patriarchal society and because male sexuality (in normative terms, not necessarily embodied in every living male) is associated with dominance and objectification. Notwithstanding genetic factors, environmental and cultural factors must play a significant role in how male (and female) sexuality is enacted, for good and for ill. This in turn must be an explanatory factor for the disproportionate representation of males among child sex offenders, even accepting possible under-reporting of female perpetration.
Second, publications by the Independent Inquiry into Child Sexual Abuse (IICSA) in the UK shows us how the nature of institutions – their structure, their values – can facilitate, or at least hinder the identification of, abuse. Projecting IICSA findings to the Jesus Army, for example, it is likely that perpetrators were outwardly devout Christians who offered refuge; who represented truth, certainty and authority to members; who were charismatic; who asserted traditional patriarchal ideas about female and child submission and sexual passivity; who manipulated loyalties and used emotional blackmail to silence victims. The institutional context meant that victims risked disbelief, ostracism or further punishment; non-perpetrating leaders may have felt reporting behaviour to external authorities risked the reputation of the church and the closed nature of these communities meant that allegations could be effectively contained.
Our sensitisation to institutional abuse is recent. Yet while we refer to cases as ‘historic’, we are actually talking about recent history and contemporary incidence. All the more reason why we pay attention to the research emerging from IICSA, to better safeguard children now and going forward.
For those UK citizens who have not lived through conflict, authoritarianism, pandemic or social unrest, coronavirus has presented us with a novel legal context. Since March 2020, we have experienced multiple changes to our ability to meet with friends and family, to go to work and school, to buy and sell goods and move around our locality, within our country, or beyond.
What is particularly marked is the speed and detail of changes. While many of us paid attention to the initial easing of lockdown in May, subsequent shifts in numbers gathering and household contact, metres apart, if and when to wear face masks, the types of venues opening or not and how, are harder to track. Over time, the slogans have changed and the four nations of the United Kingdom have moved into different lanes within the recovery track. Localised spikes can also mean local tightening. We are like the animals in Animal Farm who wake to find the rules and principles of yesterday have been superseded.
Of course, the nature of the coronavirus challenge requires swift social action. But it does present a challenge in keeping the public informed and compliant, and thereby maintaining legitimacy.
A review in June of the first prosecutions under the Coronavirus Act revealed a number of problems. Charges had been withdrawn or overturned for 53 people and more cases were being reviewed. As I noted in a blog in March, the changing context has been difficult for policing, with some discrepancies in interpretation and enforcement vigour between local forces. This has had implications for the Crown Prosecution Service (CPS):
When asked by The Independent why the CPS did not stop police using the Coronavirus Act, given the 100 per cent rate of unlawful prosecutions, [Greg McGill, the CPS director of legal services] replied: “We can’t tell people not to charge under the act but we’ve issued legal guidance to the lawyers so they understand the precise circumstances where it can be used. It’s not for the CPS to stop charging offences, it’s to make sure that it’s appropriate.” (Lizzie Dearden for The Independent, 28 June 2020)
The police and CPS cannot refuse to implement bad laws; although they might neglect to use them. Laws are proposed by Government and approved through Parliament. The reasons behind under-enforcement are complex and may include poorly written law; lack of police prioritisation or resources; under-reporting of offences; evidential reasons; and so on.
It is a well known saying that ‘ignorance is no defence’, when it comes to the law. This means that it is not an acceptable defence in court to say that you did not know that your activity or omission was illegal. However, the most effective laws must be those which have both public knowledge and broad public support. In this way, particular activities become unacceptable and citizens engage in social control through self-regulation.
This has risks too, for example where majority public opinion is oppressive to minority groups or where individuals engage in vigilante action. However, in terms of maintaining social order and social distance, which are the challenges presented by COVID-19, it is preferable that people willingly comply, encourage by example and are given some latitude to self-correct their behaviour. Rather than engaging the costly, time-consuming and often inequitable criminal justice system, we need simple and consistent public information: wear a mask in public; wash hands and surfaces regularly; meet those outside your household in public or open-air; always maintain personal space.
Laws are often drafted by civil servants who are good at turning policy ideas into detail; their capacity to produce reams of commentary and guidance is formidable (I used to be one). However, this can be at the expense of simplicity and thinking through practical translation. In addition, there is a tendency to focus on restrictions, rather than enablers. For example, instead of introducing laws which have effectively closed arts and performance activities (among others), it would have been better to fund these venues to alter their delivery model and consider how we can better use available space (physical disused, under-used, re-purposed; online) to try to continue activities in new ways. Some of these innovations or accelerations of change will continue post-corona.
COVID-19 has provided us with three lessons: first, to maintain legitimacy, governments should focus on simple and consistent messaging; second, the criminal justice system is not necessarily the best approach to maintaining social order; and finally, informing, investing in and enabling citizens positively to self regulate and to innovate through social challenges, is more likely to ensure public support, compliance and long-term resilience for the next systemic shock.
My current read is Things Fall Apart by Chinua Achebe (first published by William Heinemann, 1958 though my copy is Penguin, 2001). Born in 1930 in Nigeria, Achebe studied in London and worked for the BBC, later becoming Emeritus Professor of English at the University of Nigeria, Nsukka.
The book has a great back story. In 1957, an advert was published in the Spectator, offering to type author manuscripts for a fee. Achebe, then 27, was working for the Nigerian Broadcasting Service in Lagos but aspired to be a writer, and had a handwritten manuscript ready. He sent it to England.
Months passed. Achebe sent follow-up letters to check the status of his manuscript, to no response. Can you imagine, first, the act of bravery in sending away the only copy of your creation to another country and, second, the rising panic when you hear nothing further?
A British colleague from the Nigerian Broadcasting Service, taking her annual leave in England, sought out the typists firm for Achebe and returned to Nigeria with the finished product. It was published by Heinemann the following year, to critical acclaim.
The book tells the story of Okonkwo, a famed wrestler and warrior in the village of Umuofia, who has made his name and wealth through personal graft, catalysed by shame at the indolent reputation of his father. Okonkwo has three wives and many children whom he governs harshly: his eldest son, Nwoye, concerns Okonkwo, since he seems to have inherited his grandfather’s sensitivity and indifference to work.
One day, a woman in Umuofia is murdered in a neighbouring village; Okonkwo is sent to threaten war unless the village give up a young man and a virgin in atonement. Okonkwo returns with both. The young man, Ikemefuna, is sent to live with Okonkwo until a decision is made on his fate.
He ends up living with Okonkwo and his extended family for three years, becoming inseparable with the younger Nwoye – who matures significantly in Ikemefuna’s company – and comes to be considered as a son by Okonkwo.
Yet one day, news is brought that the Oracle of the Hills and Caves says that Ikemefuna must be taken outside of Umuofia, as is the custom, and killed. The boy is told that he is being returned to his family – much to his sorrow, as he has learnt to love his new home – and is led out with a party of men from the village, up through the forest. Okonkwo is among them. In a dense part of the trail, Ikemefuna is hit by a villager:
As the man who had cleared his throat drew up and raised his matchet, Okonkwo looked away. He heard the blow. The pot fell and broke in the sand. He heard Ikemefuna cry, ‘My father, they have killed me!’ as he ran towards him. Dazed with fear, Okonkwo drew his matchet and cut him down. He was afraid of being thought weak. (Achebe, 2001, p. 44).
Okonkwo has taken five human heads in battle, yet in the days that follow the boy’s death, Okonkwo cannot eat. Instead, he sits drinking palm wine ‘from morning till night’: what modern readers would describe as ‘self-medicating’.
This passage made me think about justice systems, retribution and harm. He didn’t know it, but Ikemefuna’s time at Okonkwo’s house was a happy death row. He suffers through separation from his family and then, much later, death. In common with a few prisoners on death row, he is innocent and his interim sentence and execution are pronounced and managed by authoritative others.
It is common across indigenous (Cunneen and Tauri, 2016), restorative and Westernised justice systems to view harm committed against an individual as a harm borne by, or committed against, the whole community. This is why an apparatus is in place to bring together the offender, the victim (or victim’s family) and the community (represented in most contemporary states, by judges and legal professionals, but in other settings by elders, community leaders or mediators) to decide what action should follow. In principle, what separates restorative and some indigenous justice from Western practice, is that the sentence that follows should repair the harm done and restore victim and offender to their status prior to the offence.
Native American justice, for example, “is rooted in notions of relationship and dialogue rather than adversarial dispute, harmony and balance rather than proof and guilt, and renewal rather than punishment” (Peat, 1996). In Zulu culture, there is the concept of ubuntu which represents group solidarity, the collective, the importance of humanity one to another. Retribution or punishment is not absent, but the goal is reconciliation. Given the difficult history of division in South Africa, there was a recognition that the future had to be founded on peaceful co-existence. To that end the 1993 Constitution specifically recognises the need for ubuntu and it was this philosophy the underpinned the establishment and process of the Truth and Reconciliation Commission.
In Maori culture, two concepts in particular are important in understanding how justice is dispensed: whanau (the extended family group) and hapu (groups of families). Responsibility is collective, rather than individual. Offending may both be caused by, and produces, a disharmony within and between families and the community. This means that the focus is on restoring the relationship between the offender (and their family) and the victim (and their family).
What is particularly interesting is that these justice systems and principles operated before colonising Western Europeans arrived, who took a fairly dim view of such practice, and who, over time imposed their own vertical, codified and ‘professionalised’ legal structures. Yet today, the discourse of restoration and reparation are de rigeur among justice policy-makers and have been appropriated and translated into systems around the world – with varying degrees of success. Indeed, Maori, Native Americans and others are recovering and re-interpreting their own justice heritage.
It is important to recognise the limitations of all systems, however. As the story of Ikemefuna demonstrates, some indigenous or local justice forms have been discriminatory and punishments brutal. Equally, contemporary state justice systems can be discriminatory, unduly retributive, convict the innocent, fail to restore or rehabilitate, or meet the needs of victims or communities.
The second issue that the story raised for me is the potential harm caused by retributive systems to the administrators of justice.
When Ikemefuna joins Okonkwo’s household, he has no real identity or value: he is the outcome of a justice barter. But as time progresses, the boy becomes someone worthy of affection and respect. Okonkwo is profoundly upset by the death sentence, yet participates even in the final act, because of his concern to maintain face.
Achebe describes Umuofia as a strongly patriarchal society. Men’s reputations are built and maintained through acts of power and force. There are a number of passages in the novel which refer to Okonkwo’s internal affection for some of his children, but he never shows it outwardly with kind words or touch. This is an example of the toxic aspects of masculinity and of social duty, which only harm those who feel obliged to embody them.
Through time, prison and punishment systems have been maintained through acts of power and force. Prisons are tough, disciplinarian spaces where collective order must be placed above individual need or subjectivity. In the UK, as in most countries, the public are distanced from the realities of prison life. Instead, prison and probation officers, governors, youth offending team and social workers, administrators, cleaners, chaplaincy, medical and counselling staff do this work on our behalf. And currently, our prisons and youth institutions are often violent and challenging places, with high levels of self-harm, dirty protest, drug-taking, untreated mental health conditions, histories of abuse, minimal rehabilitation and overcrowding. They are holding spaces for those who have offended, sometimes gravely, but they also often warehouses for the marginalised (Wacquant, 2011), the flailing and the harrowed. Unsurprisingly, prison officers report ‘considerably higher levels of psychological distress than other occupational groups, including ’emotionally demanding jobs’ such as policing and social work‘.
So retributive systems deliver on justice as punishment, but containment and violence exert a high price on those charged with its administration. High recidivism suggests the wider public are not protected longer term. Problem-solving approaches and restorative justice take us some way, but need further development in different contexts and need to gain victim and public confidence.
We have yet to grasp fully what makes justice just.
Reference
Cunneen, C. and Tauri, J., 2016. Indigenous Justice. Bristol: Policy Press.
Peat, D., 1996. Blackfoot physics, London, England: Fourth Estate Limited
Two interesting developments at the end of this week which relate to earlier posts here under COVID Criminology.
First, in my blog post 14-Jul-20 COVID-19 and Accountability, I talked about the role of a public inquiry in understanding the successes and failures of the UK Government’s handling of the pandemic. On 15 July 2020, under pressure of questioning, Prime Minister Boris Johnson conceded in the House of Commons that there would be a public inquiry, although not until the crisis is over. His argument is that it would be a waste of public resources employing civil servants in evidence gathering and inquiry administration, when we are still in the middle of fighting the virus.
In 19-May-20 Public Inquiries and Scandal, I reflected on the costly and time-consuming nature of public inquiries, the mushrooming of recommendations, the majority of which are not monitored or implemented.
Yet, this tells us more about the failings of the current public inquiry model and is a poor excuse, given that the crisis may not be ‘over’ for a long time and lessons need to be learnt now. In their report for the Institute of Government, How Public Inquiries Can Lead to Change Norris and Shepheard (2017) argue that politicians need to learn from the aircraft industry and use interim reports:
Interim reports are an under-utilised approach that can help inquiries deliver more rapidly on the key aim of preventing recurrence. There can be downsides to interim reports – not least that they usually base their conclusions on limited information, given the shorter timescales. But there are many inquiries where a range of issues can be satisfactorily addressed before the final conclusion of the investigation. For example, in cases of industrial accidents or regulatory failure, some necessary changes may be well understood early on in the process. In these cases, there is little value in holding back useful findings and recommendations until the culmination of all the other investigations; an interim report will allow for earlier, immediate action. (Norris and Shepheard, 2017. p.22)
They cite the case of the Shoreham Air Disaster in 2015, for example, where a first report was released just 13 days later, pending a fuller investigation. In addition, elements of an inquiry can be split out and proceed at different speeds, termed ‘modularisation’ (Norris and Shepheard, 2017, p.23). It was used in the Baha Mousa inquiry and to some extent in the Independent Inquiry into Child Sexual Abuse, which is running 15 separate investigations, which have published at different times.
There is no reason therefore why a tightly defined and tightly staffed inquiry could not start now, to ready us for a potential second wave over winter 2020/2021.
The second issue that emerged yesterday, was news that Russian (allegedly state-backed) hackers had been involved in targeting Western research organisations developing a coronavirus vaccine. In 5-May-20 Password Spraying, 21-Apr-20 Entanglements and 29-Apr-20 Counterfeiting, I talked about the cyber-attack methods used by organised criminal and state actors and how a potential vaccine would be a key target for counterfeiters.
Speaking on Channel 4 News, Bellingcat’s Christo Grozev explained how the organisation attributed with the attack, APT29 (also known as Cozy Bear), is known for stealing data and using it for commercial, technological and political purposes. An affiliated organisation, APT28 (also known as Fancy Bear) is believed to be linked to the Russian military intelligence agency GRU, since individuals have been identified working for both. APT28 has been associated with election tampering and institutional attacks. Grozev describes how APT28 weaponises data, holding it till the right time to release, to destabilise and sew mistrust between countries.
The problem in Russia is that the central government does not always have full oversight of this activity, given the multitude of powerful players in the country, and there is a risk that in the wrong hands the data could be gravely misused.
Of course, all countries are involved in espionage and all countries will be interested in the vaccine development progress in other countries – and may indeed be monitoring it through official and unofficial agencies. There may also be other reasons for the UK Foreign Office making this announcement on Russia yesterday. This is COVID politics and ‘vaccine nationalism’ (MD, in Private Eye (1526) July 2020), where the prospect of profit, winning the vaccine race and protecting one’s own citizens first, have diminished multilateral approaches to finding a global and affordable cure.
These are difficult times for global citizens but undoubtedly interesting times for scientists, including social scientists.
Initially there was scepticism from the UK Chief Medical Officer and his colleagues about the value of wearing face masks. People might not wear them correctly, may become complacent and forget to prioritise handwashing and social distancing. In the US, Trump said in April 2020 that he would not wear a mask and mocked his rival for the presidential election, Joe Biden, for wearing one. The World Health Organisation (WHO) did not initially advocate mass wearing of face coverings, believing that it was needed only for health and care workers and for those showing symptoms.
But emerging evidence on the transmission of COVID-19 suggested that asymptomatic individuals were passing the virus through droplets. The WHO changed their guidance in June, encouraging the use of masks and homemade cloth face coverings where social distancing was not possible. England accordingly moved to make coverings a requirement on public transport from 15 June 2020.
Chancellor Rishi Sunak was out serving people food in Wagamamas on Thursday 9 July without a mask; UK Prime Minister Boris Johnson wore one publicly on 10 July, at a photo opportunity in a shop in Uxbridge; then at the weekend, cabinet minister Michael Gove said relying on people’s common sense was preferable to legal enforcement. By this morning, it was confirmed that face coverings would be compulsory in indoor shops from 24 July 2020, backed by a £100 fine. Trump too appears to have changed his tune: he wore a mask in public for the first time visiting the Walter Reed military hospital outside Washington on 12 July.
The prevarication on face masks is one of many policy stutters during the COVID-19 crisis, particularly in the US and UK. As the July/August 2020 issue of Foreign Affairs explains clearly, while it is true that managing an issue of this scale is a challenge for any leader, there has been some catastrophic leadership in evidence. This includes nationalist posturing rather than multilateral responses; delayed decision-making; unclear messaging; a failure to adopt track and trace technology early; and neglected populations, including in Britain care home residents, BME communities and front-line health and care workers. While geography, higher levels of social trust and compliance, individualist versus collectivist cultures, and luck are important factors, undoubtedly other countries (Germany, New Zealand, South Korea, Australia, Singapore, Greece and Argentina, for example) have shown what is possible with good governance.
The WHO has been slow to act at times, but it is under-resourced and dependent on its paymasters; powerful nation-states who, when they needed to work together and seek WHO expertise, have been reluctant to.
The pandemic experience raises the question of governance, harm and accountability. In studies of crime and harm, this area of work is termed ‘harms of the powerful’ (similar to crimes of the powerful, but looking beyond just those actions and omissions defined in a given jurisdiction as a ‘crime’). A common mechanism in the UK to hold government to account is through a public inquiry, and undoubtedly there will be one into the Government handling of the pandemic and what lessons can be learnt for future such outbreaks. The public may also vote out a government at a general election, although, with excellent timing, the current Government secured their 4-year term in December 2019. Mass demonstrations and social unrest are another route, although the nature of the pandemic (which mitigates against gathering) and the current economic fragility (which instills fear and protectionism), appears to stymie such action for the time being.
An interesting and perhaps overlooked report was published in 2014 by the Department for Business, Innovation and Skills (DBIS) entitled ‘Scientific advice to government: legal liability’. The document was prepared in response to the conviction of six Italian geophysicists in 2012 who were found guilty of manslaughter and sentenced to six years in prison, following the earthquake in L’Aquila in Italy in 2009. In his written reasoning of the verdict, the Italian judge made it clear that the scientists were not convicted for failing to predict the earthquake, but rather, for their failure to analyse and explain the threat. In other words, for their failure to communicate. The DBIS document goes on to explain the relatively high bar that has to be met in UK law to be convicted of negligence and explains how other measures such as ‘gross negligence manslaughter’ and ‘corporate manslaughter’ may be applied (albeit rarely) to select government departments or to scientists working for them. The Italian scientists were cleared by the Italian Supreme Court in 2015.
While there is perhaps room for such legal action if the negligence is egregious, convictions of public health officials over the pandemic handling, without similar censure of politicians, would be scandalous. Although British politicians insisted in the early days that they were ‘following the science’, evidence will inevitably be contested. Scientists from around the world may offer different interpretations on the nature of, and appropriate responses to, COVID-19. So it is the job of politicians to come to a judgment on the available evidence and to translate it into practical policy.
At the same time, if politicians act in good faith, conscientiously and with care, they should not be unduly admonished by those who enjoy the benefit of hindsight.
What will be unforgivable, however, is if we do not the heed the lessons of COVID-19 and make ready now for the next pandemic.
The BBC website reports this morning on the case of Daniel Lewis Lee who will be subject to the first federal execution in the United States in more than 17 years. Lee and an accomplice were convicted of murdering three members of the same family.
Two details stand out in the report. First, the murders occurred 24 years ago in 1996. Second, some of the victims’ relatives oppose his execution and have sought to have it delayed. In a recent petition, they argued that attending the execution could expose them to coronavirus. However, their appeal was rejected:
The appeal court overturned a decision by a lower court that put the execution of 47-year-old Lee on hold, saying no federal statute or regulation gave the victims the right to attend the execution. In its ruling, the 7th Circuit Court of Appeals said the family’s claim “lacks any arguable legal basis and is therefore frivolous”. (BBC, 13 July 2020)
Taking first the issue of timing, it is certainly arguable that justice should have no time limit. We have seen this in the prosecution of historical abuse, murder and rape cases and of war criminals, for example. The difference here is that Lee was originally sentenced to death in 1998, but has been waiting 22 years for that sentence to be carried out. Death-row prisoners in the U.S. typically spend more than a decade awaiting execution and some prisoners, such as Lee, have been on death-row for well over 20 years. The time is taken through legal appeals, many of which do lead to exoneration or non-capital re-sentencing (which itself underlines the importance of the appeal process but also the risk of imposing capital punishment on the innocent). Some argue that those on death-row are subject to double punishment: waiting at least a decade in effective solitary confinement (a punishment used only for limited periods in the general prison population) and then being executed.
The second issue is the role of victims in the justice process. In this case, some (though not all) of the victims’ families are against the death penalty being used. Earlene Branch Peterson, whose daughter, granddaughter and son-in-law were killed by Lee and his accomplice Chevie Kehoe, explains her view in a six-minute video to President Trump, asking for him to grant clemency to Lee:
“I believe you have to pay for what you do,” she said. “But that don’t mean death.”
The 7th Circuit Court of Appeals judgment, that no federal statute or regulation gives the victims the right to attend the execution, makes clear that sentencing is a matter for justice agencies, acting on behalf of the state. Politically, we talk about justice ‘for victims’ – but in truth, victims have a minor role in the court process as witnesses and observers. In the US, UK and other countries, victims can explain the impact of the crime through Victim Impact Statements, but this does not generally affect the sentencing tariff (Finland is an exception: here, the victim has a right to recommend a punishment different from the one recommended by the prosecution). Indeed, we might agree this is a good thing: victim-led justice would lead to disparities of sentencing as different victims of similar crimes may respond differently. Of course, state justice agencies also perpetuate disparities due to prejudice, politics and error. Returning to Mrs Peterson, for example:
[She] explains in the video that everyone in the courtroom, including herself, was prejudiced against Daniel Lee — who is missing one eye and has Nazi tattoos on his neck — from the moment they saw him. In contrast, co-defendant Chevie Kehoe was clean-cut and dressed “like a young businessman,” Mrs. Peterson recalls. The judge described Mr. Kehoe as “the ringleader” in the crime and evidence showed he killed Sarah after Daniel Lee refused to do it, but the jury sentenced him to life imprisonment without parole.
A justice system should also avoid the brutalisation of society and prevent cruel and degrading treatment. It should be guided by human rights, proportionality and justice. However, some argue that capital punishment meets none of these values: Archbishop Desmond Tutu said that, ‘To take a life when a life has been lost is revenge, it is not justice’. Others argue that execution is not punishment enough: life imprisonment without the possibility of parole is a tougher sentence. There is also a moral question of applying execution to those who have had profoundly abusive childhoods, including being indoctrinated as young people into violent extremism, have a diagnosed mental health condition or committed acts while still in their teens.
From 2015-2018, I worked with colleagues at the Centre for Gender and Violence Research at the University of Bristol on what justice means to victims of gender violence and how it is sought and experienced. Our work showed that there are many routes to justice, not all of them through the criminal justice system. Indeed, the lack of control over the process and outcomes of the criminal justice system was a deterrent for some in reporting to the police. Returning also to the issue of timing, the long wait for cases to come to court and the weeks and months spent in trial and possibly later in appeals, is problematic both for victims, their families and defendants.
A justice system must have broad support from the public and victims to maintain legitimacy. The case of Daniel Lewis Lee raises questions about the appropriate role of victims and who holds authorities accountable for the fair and humane administration of justice.
Lady Macbeth. […] Come, you spirits That tend on mortal thoughts, unsex me here, And fill me from the crown to the toe top-full Of direst cruelty! make thick my blood; Stop up the access and passage to remorse, That no compunctious visitings of nature Shake my fell purpose, nor keep peace between The effect and it! Come to my woman’s breasts, And take my milk for gall, you murdering ministers, Wherever in your sightless substances You wait on nature’s mischief!
(Macbeth, Act 1 Scene 5)
Macbeth is one of my favourite Shakespeare plays and particularly this soliloquy from Lady Macbeth. I have just dug out my old school copy and am reading my scrawled margin notes about her seeking to reject her ‘maternal’ and ‘feminine’ instincts to urge her husband to murder his rival to the throne, Banquo. Later in Act One, Scene Seven, when Macbeth is prevaricating about carrying out the fatal deed, Lady Macbeth taunts him that even she, a woman, could do it:
Lady Macbeth. I have given suck, and know How tender ’tis to love the babe that milks me: I would, while it was smiling in my face, Have pluck’d my nipple from his boneless gums, And dash’d the brains out, had I so sworn as you Have done to this.
Macbeth. If we should fail?
Lady Macbeth. We fail! But screw your courage to the sticking-place, And we’ll not fail.
(Macbeth, Act 1 Scene 7)
These visceral images of the tainted breastmilk and pulling the vulnerable baby from the breast to murder it are both powerful and shocking.
Carol Smart (1976) argued that the gender expectations that women should be peaceable, maternal and home-loving mean that women who break these conventions by engaging in offending, particularly violent or sexual offending, are seen by the public and the criminal justice system as ‘doubly deviant’. Double because they offend by their crime, but also against their gender. We associate violent and sexual crime with masculinity, meaning that such offending by females appears to be an ‘exception’ or ‘aberration’ against nature.
Indeed, women who do offend or are associated with such offending – often with male perpetrators – are household names: Myra Hindley, Rose West, Joanna Dennehy, Beverly Allitt, Mary Ann Cotton, Vanessa George or Maxine Carr.
Women do commit violent and sexual offences, but on nowhere near the scale and impact of men – in terms of recorded offences, at least. In England and Wales, around 15% of those arrested are female and females represent around a quarter of prosecutions, convictions and sentences. However, a greater proportion of female offending comprises ‘summary’ offences which are dealt with at the magistrates’ court. These might include non-payment of TV license or shoplifting, for example. The campaigning charity Women in Prison report that most women entering prison serve sentences of less than 12 months: these accounted for 82% of all sentenced first receptions of women in the year ending September 2019. Ministry of Justice data also suggests that most women entering prison to serve a sentence (80%) have committed a non-violent offence. Only around 5% of the current adult prison population are female: there are no female young offenders institutions. Females under 18 who commit serious offences are usually placed in secure training centres.
While double deviance may be an important factor in media coverage, of more concern perhaps to campaigners is the potential for double punishment. There are 12 women’s prisons in England (none in Wales): this means that women may be imprisoned far from home, potentially reducing the number of visits by friends and family. Women are more likely to be carers, often sole parent for children, and may lose children to care if they go into prison. Male prisoners are more likely to know their children continue to be looked after by female partners while they are inside. A significant proportion of women in prison have histories of familial and intimate partner abuse and will engage disproportionately in self-harm while inside. Men and trans men and women face similar and different challenges.
Does it matter if we still assume violent and sexual criminals are male and feel additionally disturbed when the perpetrator turns out to be female? As Lady Macbeth waits tensely outside the chamber for Macbeth to commit the deed, worried that he may not have gone through with it,
Lady Macbeth. Alack, I am afraid they have awaked, And ’tis not done. The attempt and not the deed Confounds us. Hark! I laid their daggers ready; He could not miss ’em.
She claims:
Lady Macbeth. Had he [Banquo] not resembled My father as he slept, I had done’t.
(Macbeth, Act 2 Scene 2)
Later in the play, when the guilt drives her to madness and constant handwashing to wash away the imagined blood, her lady-in-waiting calls a doctor and asks him to observe this strange repeated performance:
Doctor. What is it she does now? Look how she rubs her hands.
Gentlewoman. It is an accustom’d action with her, to seem thus washing her hands. I have known her continue in this a quarter of an hour.
Lady Macbeth: Yet here’s a spot.
Doctor: Hark, she speaks. I will set down what comes from her, to satisfy my remembrance the more strongly.
Lady Macbeth: Out, damn’d spot! out, I say!—One; two: why, then ’tis time to do’t.—Hell is murky.—Fie, my lord, fie, a soldier, and afeard? What need we fear who knows it, when none can call our pow’r to accompt?—Yet who would have thought the old man to have had so much blood in him?
(Macbeth, Act 5 Scene 1)
The greatness – and modernity – of this play is that while it plays on gender stereotypes in its opening imagery, as the story progresses we see that both Macbeth and Lady Macbeth are complex, fragile and human characters, beyond their gender. They commit vile acts but also struggle to carry the horror of what they have done. Lady Macbeth is a deviant woman, but it is not clear her deviance is double Macbeth’s.
Alfred Fagon was a Jamaican-born playwright who came to England in 1955 at the age of 18. He worked on the railways and joined the army, where he became a boxing champion. Leaving the army in 1962 to travel and sing calypso, Alfred settled in Bristol, learning the welding trade and starting to act part-time for HTV. He auditioned and starred in Mustapha Matura’s play Black Pieces in London in 1970 and would go on to become a playwright and a central figure of Black theatre.
Fagon’s play ‘Lonely Cowboy’ tells the story of English second-generation Jamaicans Flight and Gina, who open a new café in Brixton, London. The setting is the early 1980s: police sirens pass regularly. Flight wants to block out ‘music and back to Africa politics’, ‘ganja’ and ‘the front line’ and run a legitimate business, a place of sanctuary and a good life for him and his partner Gina.
One character in the play is of particular interest here: their friend Jack, who has joined the police. This is hard news to take for some who know him:
Wally: So Jack get posted back to Brixton. Still I have no business with no policeman whether I know him or not and on top of it Jack never throw a brick in the riot. The place [new café] look nice man. I could have been a successful business man myself if I did not get caught up in the riot. And now Jack is a policeman. One of our own blood.
Thelma: Stop worrying yourself about Jack.
Wally: No, I can’t. In days gone by, we used to sleep and eat in the same house. Our parents was friends when they were alive.
(Lonely Cowboy, Act 1, Scene 1)
Later, Jack comes into the café for a drink: another character, Stanley enters. He is taken aback to see Jack standing there in uniform. Café owner Gina tells him to pull himself together:
Gina: Man, grow up, is only Jack, born and bred Brixton black man.
Stanley: No, well listen to me. I don’t know what to say. I mean one love to the brothers and sisters, but a black policeman is no rejoicement.
(Lonely Cowboy, Act 1, Scene 1)
The play captures how individuals negotiate second-generation identity in the ‘mother country’. For some characters, Jack is a ‘traitor’ for joining the police and has essentially allowed himself to be co-opted by the British state. The audience can see how colonial experience continues to divide and rule.
Stanley: Every policeman is the same, whether they are black or white. You sell your birthright to the Englishman.
Jack: I am an Englishman. Boy oh boy you have chips, mountains and pressure on your shoulders.
Stanley: Yes, I know, why you is free as a bird.
(Lonely Cowboy, Act 1, Scene 1)
Reading this play reminded me of a Guardian video I have used in teaching. In this 2013 clip, Metropolitan Police Constable Wallace discusses his experiences of being a Black officer. He presents a broadly positive picture but, if you pay close attention to this video, there are spoken excerpts and frame shots which demonstrate the challenges he faces, within and outside the force. Wallace says, “People ask me, ‘Why [as a Black man] am I a police officer?’, [well] why shouldn’t I be?” On 15 June 2020, a female police officer at the Metropolitan Police published a piece in the Guardian on her experience in the light of the Black Lives Matter protests. She writes:
As a black police officer, this has made my job difficult. Due to the complex political history between the police service and black Britain, officers of colour representing the Met are regularly targeted by these communities when out on patrol. I have seen and experienced slurs of “Here comes the black one”, “Coconut” (a racial slur meaning black on the outside yet white on the inside), “Trust them to roll out the black one for us” and jeers of “Uncle Tom”. I’ve been told repeatedly that I am “working for the white man”.
It is painful to acknowledge that this continues to be the experience of policing in 2020: it does not sound so far from the challenges and conflicted feelings facing Jack and his acquaintances in the Lonely Cowboy.
Co-incidentally, my current bed-time read is The Buddha of Suburbia by Hanif Kureishi (1990, Faber and Faber). The book recounts the experiences of Karim, a mixed-heritage Indian and English teenager in the 1970s, who seeks to escape suburbia and ends up acting in theatre in London. On page 1, Karim introduces himself: “My name is Karim Amir, and I am an Englishman born and bred, almost”. Kureishi himself joined the Royal Court at 18 and wrote a number of plays (as well as novels and screenplays). Likely, Hanif Kureishi and Alfred Fagon never met, but together they provide social histories of everyday racism and the challenges of being Black and Asian males in England; women face the compounding intersections of race and gender.
While the roots of the difficult relationship between police and Black and Asian communities in England stretch back before Peel established his bobbies in 1829, the post-war era is also critical in understanding contemporary tensions. For some commentators in the 1970s and 1980s, British policing of minority ethnic communities was an inversion of decades of colonial policing overseas to policing the ‘domestic colonies’ (Sivanandan, 1982; Fryer, 1984; Howe, 1988, cited in in Bowling, Parmar and Phillips, 2008, p.530). The Immigration Act 1971 extended such powers considerably and “began to shift the control of immigration from external border controls to internal controls, or ‘pass laws’ for people of African, Caribbean and Asian descent resident in Britain” (Sivanandan, 1982, p. 135, in Bowling, Parmar and Phillips, 2008, p.531). The Institute of Race Relations in 1979 published evidence that Black and Asian people were subject to persistent foot and vehicle stops, racially abusive questioning, arbitrary arrest, forced entry and violence, and provocative and unnecessary armed raids. (The IRR Black History Collection is an excellent resource for those interested in that period). In 1978, Stuart Hall and others published a seminal work entitled Policing the Crisis demonstrating how the media, politicians and criminal justice system engendered a moral panic about mugging, rooted in prejudiced associations between Black people and criminality. This meant that the Black community were subject to a hugely disproportionate level of policing. Public disorder in St Pauls in Bristol in 1980 and Brixton in 1981, followed the implementation of so-called ‘sus laws‘ and against a backdrop of recession and unemployment. This is the context of Fagon’s play. Injustices have continued over the following four decades, though some progress too has been made.
Media commentators talk about this being a potentially defining moment for race, but of course there is no single ‘moment’. In June 2020, Fagon’s statue in St Paul’s, Bristol, was defaced with acid following the Black Lives Matter protests. In any social movement, backlash is always lurking to counter and deplete the hopeful statements of today. Achieving real change requires constant vigilance. It is more and radical action that is needed: not extended reviews into the problem. The problems are long known.
I love my job and always have. I joined the Met because I wanted to lead the way for children from my own community. These goals have been tainted by my experience so far. Here is an opportunity for the Met to self reflect. How does it treat its BAME staff? Why does the institutional racism identified in the Macpherson report continue to exist in 2020? And how will the Met better serve and mend its broken relationship with the black community in the months and years to come?
Today’s blog is an interview with a ‘Circuit Judge’ who acts as a Crown Court Judge in England and Wales. The interview explores a typical day; route into the job; enabling justice for victims and defendants; and the impact of the COVID-lockdown. My sincere thanks to the contributor for their time in preparing this.
What does a typical day look like for you?
Ordinarily (before Covid-19 lockdown) I would attend the Court building towards 9am, with the Court sitting itself starting at 10am. I have tried to prepare most cases before the day, since we are provided with lists in advance and have access to all the case documents and materials on a digital case system, but the first hour is spent dealing with any outstanding preparation and reading additional documents / reports etc which may have been uploaded at late notice. The listing of the Court will vary between trials, which may be in progress for a few days – sometimes weeks, or other general business, such as dealing with procedural hearings and sentencing cases. More defendants plead guilty than not guilty, since generally cases do not reach the Crown Court without there being a significant amount of evidence, so there are usually quite a number of sentencing hearings each day and throughout the week.
By about 4pm it is generally the case that the Court sitting day will have finished and this provides some time later in the afternoon to prepare cases for the following day. Although I do have to complete some paperwork and can deal with certain matters administratively, the main focus of the work is physically being in Court and making decisions in a variety of different cases – as I have said above, these range from initial hearings where pleas are entered, through to conducting trials with a jury and numerous sentencing hearings.
What was your route into this role and is the job what you expected?
I am a “Circuit Judge”, which in my case means being a Crown Court judge dealing exclusively with criminal prosecutions. There are Circuit Judges in other jurisdictions, dealing with a variety of civil and family law matters. My route into the role arose from a long prior history of working as a criminal law defence solicitor over a period of more than 30 years. Judges are appointed from the ranks of existing practitioners. Generally speaking, in relation to the Crown Court, barristers are more likely to apply and to be appointed than solicitors. However, I was a solicitor for all of those years, so this makes my appointment one of the less common ones. People can apply to become a part-time Judge (either in the Crown Court or the Magistrates’ Court) after at least seven years of practice, which would normally be expected to have taken place in the relevant jurisdiction. You do not have to wait as long as 30 years!
In my case, I made various applications over the years since I knew that the work would interest me and I saw it as a career progression. At first I was not successful, but in 2006 I was appointed as a part-time judge in the Magistrates’ Court – so my professional life was split between my day job working in a criminal defence firm and then fulfilling bookings to do judging work away from the area in which I was normally based. About 10 years later I was appointed as a part-time judge in the Crown Court and two years after that managed to obtain a full-time appointment, which I started in 2018. All judicial appointments are made through a long and detailed process of application which is administered by the “Judicial Appointments Commission”. Anyone interested in researching what would be involved could find out more information from their website.
As to whether it is what I expected, I would say the answer is simply “yes”. This is partly because as a practitioner in criminal law I knew what judges have to do and had a pretty clear insight into their work – but also because I had been doing the job part-time for a number of years before obtaining the full-time appointment.
How well do you think the justice system in England and Wales operates, including in terms of (a) ensuring the guilty are convicted and the innocent acquitted? and (b) delivering what victims want?
I think that this is a mixed picture. As I mentioned above, cases tend not to reach a Court without there being a reasonable amount of evidence. Sometimes that evidence is just obvious and overwhelming – such as somebody being caught in the act, or leaving their fingerprints and DNA at the scene of a burglary. Sometimes the evidence comes down to dispute between individuals as to who did what to whom, such as in a fight or other personal dispute. It has to be remembered that most people in the system overall will plead guilty, because they are often faced with clear and obvious evidence. So to that extent, many of the guilty are convicted by their own admission.
Where cases are disputed and reach trial, the inherent issue in the trial process is that those making the decision as to what happened (whether say Magistrates in the Magistrates’ Court, or juries in the Crown Court) were not there at the time of the event in question! So they have to interpret as best they can what happened from such evidence as there is and how that is presented. Further, the “standard of proof” in a criminal trial is that the Court must be “sure” of guilt before they can convict. This is a high standard on the basis that people should not be convicted of criminal offences and potentially sent to prison on the basis that they might have done something, or even that they probably did something. By definition, this will mean that a certain number of guilty people will be acquitted. From my experience it is more likely that a guilty person will be acquitted than that a innocent person will be convicted. One would like to think that if the accused person is innocent then it should not be possible for the evidence to demonstrate that they are guilty. However, of course this is not always the case and there are many examples over the years of miscarriages of justice, both publicly well-known and otherwise. Nonetheless, whilst it is not possible to access to reliable data, I would suggest from my experience that convictions of the innocent are comparatively rare.
It is difficult to be confident as to how far the system “delivers what victims want”. In many cases, this will be achieved but inevitably, in view of that high standard of proof, many victims will know that their assailant or perpetrator simply “got away with it”. Indeed, many cases do not even reach the Courts if it is felt that the evidence just is not there to support a prosecution. Generally, as a society, we have been guided by the view that it is better that a guilty person goes free rather than that an innocent person should be convicted. When defendants are convicted (or plead guilty) I appreciate that victims may feel that the sentences of the Court are inadequate. We have a problematically overcrowded prison population and the Courts very much try to use prison as a last resort and then only for the minimum time that can be properly justified. This will lead to victims being disappointed on occasions when they see the perpetrator keep their liberty or not be sent to prison for as long as they might have hoped. The Courts do take into account the views of victims, particularly in terms of the impact of the offence by way of “personal statements” that victims are encouraged to make, but the victim cannot as such direct the sentence.
What challenges has the justice system in England and Wales faced since the COVID-19 lockdown?
The simple answer to this is that the Covid-19 lockdown has fundamentally affected the running of the Courts, particularly in relation to jury trials in the Crown Court. It is impossible to keep people 2 metres apart from each other in most Courts up and down the country. Some trials have recently (June 2020) resumed tentatively in a few Court centres where special arrangements have been possible to use multiple Court rooms on a single case, but most Courts cannot facilitate that. As a result, all trials were stopped for over two months and the backlog in the system now is very severe. For some time to come, the Courts will (eventually) be trying to catch up and this will result in matters being dealt with many months and years after the event in question. It is a very serious problem. The Court where I am based has not conducted any jury trials since mid-March, which at the time of writing is now three months, and there is no clear indication as to when we will be able to start again.
In terms of other cases, those not involving trials, there are still many delays and adjournments. The Court has tried to minimise the number of individuals attending Court by using video-link technology, so most lawyers now appear “remotely” rather than in person. Various defendants have had issues attending Court as a result of lockdown – so delays are in existence across the board at the present time. The Court simply cannot hear as many cases per day as it used to, since all hearings now have to be timetabled for video-link appointments and everything simply takes longer. Before Covid-19, if I had a busy list, all the defendants and lawyers would be milling around Court at the same time, and it would be possible to call cases on quickly as soon as they were ready and without the need for specific timetabling on the day.
How far do you think the lockdown experience will have longer-term implications for how justice is delivered going forward?
The main issue here is delay. Courts will be ending up sentencing people many months, and indeed years, after their offence was committed. In many cases, this will benefit the defendant – a Court may well have sent someone to prison if they had been dealt with reasonably close to the time of their offence, but may find it much more problematic to do so after such a long delay. Equally, there are certain defendants remanded in custody because of the nature and seriousness of the alleged offence or because of their record, who will be held on remand and without a conclusion to their case for far longer than would otherwise ever have been the case.
So, the delay in itself can affect the outcome one way or the other. I do however think that the increased use of technology and video communications will be an advantage in some respects. Looking ahead, even when the crisis is over, it will be helpful to have more matters dealt with remotely where possible – cutting down on excessive travel and expense for lawyers in particular. I am sure that there will be solicitors and barristers hoping that they will be able to continue to take advantage of these arrangements in the future where possible.
I have been reading Martha Gever’s chapter (reproduced in McLaughlin and Muncie, 2013) on the ‘spectacle of crime’ in relation to the American TV series CSI: Crime Series Investigation. One phrase in particular set me thinking. Gever talks of “…the flux of visual imagery that harnesses the quest for scientific truths to scenes of very dramatic and always successful crime detection in CSI…” (2013, p.449, my italics). The requirements of a good story include characters, setting, plot, conflict and resolution – in this case, successful detection.
Crime narratives rarely leave the crime unsolved – unless a sequel is planned. It is part of the enjoyment of watching and reading crime drama that, Holmes-like, we anticipate the perpetration, motive and apprehension of the suspect. And where the central premise is an unsolved incident, the same story elements are transferred to victim, alleged perpetrator or community experience – as in the Netflix drama The Staircase, which follows the journey of Michael Peterson, convicted for the murder of his partner, Kathleen. In this way, fiction and screen writers impose resolution and quasi-detection.
But how far does successful crime detection reflect policing reality? Before April 2013 in the UK, solved crimes were measured using ‘detection rates’ (Home Office, 2019, p.6). These were the number of cases resolved with a formal or informal criminal justice outcome. Formal justice outcomes (or ‘sanction detections’) include a criminal charge, a penalty notice for disorder, or a caution; informal justice outcomes (or ‘non-sanction detections’) are those where no further action is taken.
From April 2014, and as at March 2019, detection has been subsumed under a broader outcomes framework (Home Office, 2019, p.8).
Charged/Summonsed
Taken into consideration
Out-of-court (formal
Out-of-court (informal)
Prosecution prevented or not in the public interest
Evidential difficulties (victim does not support action)
Investigation complete – no suspect identified
Action undertaken by another body/agency (from April 2015)
Further investigation to support formal action not in the public interest (police decision) (from January 2016)
The 2019 Home Office release (p.6) shows that in 44% of offences, no suspect was identified. However, this varies across crime type and is particularly high for example among theft cases (74%), and far lower in rape (9%) and homicide cases. So perhaps the high detection rates represented on screen and in fiction, which focus disproportionately on serious crimes, are not so far off reality. In a significant proportion of cases, the victim does not (or does not continue to) support police action: this applied in 39% of rape cases and 43% of violence against the person cases. In 32% of cases in the year to March 2019, offences were closed as a result of evidential difficulties.
So while there may be detection, there may not be justice.
Gever (2013, p.461) says that in CSI, investigators are shown “at work searching a database, peering through an electron microscope, or skilfully operating all sorts of elaborate equipment”. She argues that this spectacle “constitutes arguments for the advantages of digital computing and communication systems as the most efficient, most effective surrogate police” (2013, p.461). Again, the daily reality for UK policing is rather different. Metropolitan Police Commissioner Cressida Dick acknowledged in 2019 that inquiries now were more complex, involving a large amount of digital evidence. Despite (very legitimate) concerns about the surveillance and technical capacity of police, it is not clear that forces are yet adopting emergent technologies and forensic innovations CSI-style. Austerity and organisational culture have mitigated against this and lead to the more troubling scenario of functions being increasingly outsourced to the private sector.
This raises the question of what we are willing to trade for more successful crime detection.
In 2019, I co-authored a Home Office-commissioned report with colleagues at the University of Bristol on the nature and prevalence of prostitution and sex work in England and Wales. As part of that research, we heard from over 500 individuals involved in selling sex, and followed up with more than 40 within that group to learn more about their experiences. Since the COVID-19 pandemic and lockdown, I have been thinking about our participants in that research and how they are managing.
The challenges facing those who sell sex both in the UK and around the world during the pandemic have been articulated in academic journals, by organisations working with and representing sex workers (including NUM, ECP, Changing Lives, Beyond the Streets, SWARM and One25) and on news and social media. Of course, many of those selling sex are unaffiliated to any group or support organisation: they work alone in privacy or remain outside the public and media gaze, through choice or otherwise.
There is stark commonality, but also diversity across the sex industry. Most are working in-person, providing sexual services, including full sex either at home, outdoors or in another venue such as a brothel, parlour or hotel; others are working through phonelines or online, webcamming or making clips to order, for example. Given the lockdown, there has been some movement to online, but many will have continued to work in-person. Most sellers are women, including trans women. There are also a significant number of male sex workers, as well as those who identify with other genders or none.
Some are successful entrepreneurs, running their own websites, operating from dedicated premises, registered as self-employed and paying tax. A proportion of these may therefore have met the criteria to apply for the UK Self-Employment Income Support Scheme set up in response to the lockdown. However, the Home Office research suggested that the majority of those selling sex are either doing so temporarily, intermittently or long term to make ends meet, including as a supplement to other paid work. Many are caring (often solo) for others, including children, partners or parents; some are managing long-term physical illness or mental health issues; many are migrants, some with insecure status; some are students; some involved are victims of partner abuse, or are misusing drugs or alcohol. Some may register their earnings formally; most will not. I would term this majority as ‘sex workers’ or ‘individuals engaged in survival sex’ (see Mulvihill, 2019), and it these groups that are the focus of this commentary. There are also a significant number of mainly women and girls who are coerced into, and abused by others through, ‘prostitution’ – which, while recognising the overlap and movement between categories, I would rather term ‘sexual exploitation’. The COVID-19 crisis has brought into sharp focus two issues for those engaged in sex work and survival sex in the UK: the inadequacy of the legal environment, and the inadequacy of the welfare safety net and public provision.
In England and Wales, it is legal to sell and to buy sex. However, myriad activities around the sale of sex are illegal, such as pimping, kerb-crawling, soliciting on the street or working with one or more other people from a premises, as this constitutes a ‘brothel’. These laws have been layered piecemeal over decades and are unevenly enforced, more so given tightening police resources. They are ostensibly aimed at preventing exploitation, but stem as much from a concern to keep such activity out of public view.
Whether you understand selling sex as a job like any other or as an outcome of patriarchy and other inequalities – or both – most can agree that sex workers should not be criminalised. Governments should seek to allow sellers to work together in a small-scale and self-managed way. Such brothels already exist up and down the country, but sex workers risk inconsistent policing, depending on where they are located. The illegal status of brothels places barriers to reporting violence or other crimes against sellers. Those selling sex on the street should not be criminalised. Equally, the concerns of communities in relation to both indoor and outdoor sex work need to be recognised and negotiated. Rather than seeking to manage outdoor sellers, far more resource should be invested in tackling the drivers for street sex, which are well documented (see for example, Matthews et al., 2014; Sanders, 2007).
The legal status of sex workers links to the second issue of access to welfare and collective provision. The UK, like other liberalising economies, has seen a steady erosion of the welfare safety net. The threshold for eligibility is ever higher and the benefit received ever lower. State dependence is stigmatised and personal responsibility prized (though inheritances and other financial support from one’s family are encouraged). Sex workers, like the majority of society, are vulnerable. Not vulnerable in the sense of helpless or lacking resourcefulness, ability or graft, but rather vulnerable through exposure to changing individual circumstances and unforgiving welfare and legal contexts. Many of us can face this sudden exposure when we find ourselves caring for others, made unemployed, discriminated against, migrate or become ill. Surveys in the US and UK suggest that at least a third of millennials, for example, have no savings put by; and another third would only have three months pay if their income stopped. So a safety net, whether that is short or longer term, is crucial both to uphold human dignity but also to avoid the future multiplier costs to the state of economic and social exclusion.
Yet austerity and the difficulties in accessing Universal Credit have pushed many into exchanging sex for money. How ironic that now the COVID-19 crisis is affecting mainstream workers, the government has adopted a ‘pay now, verify later’ approach to Universal Credit – and that borrowing, minimised for a decade in favour of austerity, has reached unprecedented levels in order to stave off a depression. Had we prioritised spending after the 2008 financial crisis to invest in a fairer safety net and more robust public provision, we might have been better equipped to meet the challenge of the pandemic.
Around the world, those who sell sex (including those who add significantly to national income through the tourism and leisure industries) have found that they either have no access to government income support (France, Thailand, Japan or Kenya) or minimal access (Brazil or Mexico). In New Zealand, by contrast, where sex work is decriminalised, applying for help has been more straightforward.
The pandemic has temporarily allowed us to see alternatives to the current order. It is possible to hold quite divergent views on prostitution and sex work, yet at the same time agree that punitive criminal justice or welfare measures appear only to harm those who sell sex – indeed, harm all those exposed by social inequity or a change in circumstances. By lifting those selling sex out of social, economic and legal grey zones and giving them the resources to stand in equality with others, they can determine their own futures.
I read this morning the BBC article by Nduka Orjinmo about campaigning by women in Nigeria for police, the state and the public to take seriously rape and sexual violence, and bring perpetrators to justice. The brutal rape and bludgeoning to death of 22-year old student, Uwavera Omozuwa, known as Uwa, is one of a number of cases in Nigeria in recent days.
Activists describe how reporting sexual violence and assault leads to stigmatisation for the victim. Police officers – reflecting public sentiment – will often blame victims for their dress or for being in the wrong place at the wrong time, may seek to extort money and may themselves perpetrate rape.
Of course, blaming victims of sexual abuse and violence is not exclusive to Nigeria: it is the same the world over. “Rape myths are attitudes and beliefs that are generally false but are widely and persistently held, and that serve to deny and justify male sexual aggression against women” (Lonsway and Fitzgerald 1994, p. 134). Edwards and colleagues (2011, p.761) identify and discuss rape myths in the United States such as, “husbands cannot rape their wives,” “women enjoy rape,” “women ask to be raped,” and “women lie about being raped”; similarly Ryan (2011, p.775) identifies the following rape scripts: “women invite rape by engaging in overtly sexual behaviour or wearing provocative dress; only certain women are raped—those who drink too much, sleep around, or hang out in the wrong places; […] women mean yes when they say no”. Rape myths circulate also around male victims and serve to undermine and silence their experience.
And so victims of rape can be reluctant to report and re-traumatised through the process when they do, since rape myths play out within justice structures and through state actors. Reforms have been made in England and Wales and elsewhere to improve police responses and adapt court processes, for example, but myths can persist in the narratives of defence and prosecution, in the closing comments of judges and in the minds of jury members.
In a meta-analysis of 37 studies, Suarez and Gadalla (2010) find that rape myth acceptance is not only, as we would expect, “strongly associated with hostile attitudes and behaviours toward women, but also correlated with other ““isms,” such as racism, heterosexism, classism, and ageism”.
And this is because, at root, myths about women, about race, about sexuality and so on, are about power. Those in power both lie about who their victims are, and blame their victims for their own abuse of power.
Women who speak up about sexual violence or sexism, for example, are dismissed by some as ‘fantasists’, ‘troublemakers’, ‘lacking a sense of humour’, ‘godless’, ‘immoral’, ‘feminists’, ‘ ‘talking too much’, ‘playing the victim card’, and so on.
I was struck by this in the coverage of those protesting the murder of George Floyd. Some sections of US media and politics referred collectively to protestors as, ‘anarchists’, ‘rioters’, ‘looters’, ‘left-wing agitators’ and ‘antifa’. The Age newspaper in Melbourne, Australia claimed on a front page on 5 June 2020, without evidence, that Black Lives Matter protesters had threatened “police command with spitting, inflammatory chanting and other forms of physical abuse” – before apologising and changing the story by mid-morning.
These myths serve to minimise and brush away the real story, which is abuse of power. These incidents of abuse are not a ‘repetition of history’ – there is an unbroken line of abuse of power against women, against Black, Asian and minority ethnic groups, against those not complying with gender and sexuality expectations, and so on. And when these groups challenge abuse, they are blamed and undermined until the threat of their resistance to established power subsides.
It takes such tenacity, risk and heart to keep fighting for justice – more power to their breath in speaking out.
There is something intrinsic to our nature to seek to explain the world around us. It is particularly satisfying to identify one simple explanation for a given scenario, and better still if that explanation can be applied to a number of similar scenarios.
In a 2000 piece (reproduced in a reader by McLaughlin and Muncie, 2013), Marcus Felson makes the case for a general theory of crime. He laments that criminologists appear to spread their allegiances over a number of general theories and indeed that, “some […] will insist that criminology is a ‘multiple-paradigm’ field, but that violates every idea of a paradigm as a single road map for scientific exploration” (Felson, 2013, p.188).
Felson encourages us to “adopt from more successful sciences [sic] the following five standards of scientific coherence” (Felson, 2013, p.189). These are:
The touch-it standard – this means finding tangible explanations, which engage our five senses.
The near-and-far standard – this means finding explanations which work at all levels (micro and macro), over time and across all places.
The few-too-many standard – this suggests that adopting a small number of explanatory principles, which can be broadly applied, is better than having multiple principles which then require multiple caveats.
The exactly-how standard – this means explicating the mechanisms that explain how your theory works, in precise terms.
The fit-the-facts standard – this means you should continue to collect new evidence for your theory and tweak your theory as needed. However, if you find yourself straining to fit the facts, it’s time to change the theory.
Felson uses these standards to propose that Routine Activity Approach is a worthy candidate for a general theory of crime. Routine Activity Approach was developed to make sense of direct contact predatory offences such as burglary and street crime. It is proposed that such activity requires three elements – a likely offender; a suitable target, and the absence of a capable guardian against the offence. So, for example, a car theft requires an individual motivated to steal a car; a car that can be broken into; and the absence or limited capacity of the owner or onlookers to prevent the theft. By applying this framework to different crimes and by developing each element further (for example, a ‘suitable’ target may have particular characteristics, such as ‘value’ or ‘visibility’ (Felson, 2013, p.190)), new evidence can consolidate and enrich the theory.
It is possible to see how this framework could be used by police and potential victims to build up knowledge about how to ‘harden targets’ – such as putting valuables in a car out of sight or adding a steering lock. Routine Activity Theory is part of a suite of theories that can be described as situational crime prevention. Situational crime prevention is based on assumptions about how people behave given a set of circumstances – in a similar way to observing how the combination of iron and oxygen over time makes rust, and what might prevent this reaction.
“Crime is a physical act and we must not forget it” (Felson, 2013, p.194). This is true to the extent that crime has to be perceptible to human cognition – but not all crime is direct contact in its commission, albeit the effects may be physical, either immediately or in the longer term. For example, coercive control can be exercised by abuse perpetrators entirely through words, non-physical threats and deprivations (such as isolating the victim from friends and family by concocting arguments and divisions; such as taking control of their bank account and therefore access to finance). Cybercrime can be conducted with international reach from the comfort of one’s home computer and indeed perpetrated independently by web robots or without the victim even being aware. Similarly, the employer who pays their workers below the minimum wage is not physically stealing money or coercing them to work.
We need also to look beyond crime and consider harm. Harms include speculative short-selling that wrecks economic livelihoods; a diminishing welfare net yet a burgeoning number of poor households; environmental degradation; institutional racism; crowded and unsafe detention, to name a few. Applying Routine Activity Theory to these scenarios, we can see that both the direct or indirect perpetrator and the absent capable guardian are often states themselves. It is often through their omission rather than commission of physical acts: the law not introduced or implemented; the victims ignored; the justice undelivered.
Frameworks such as Routine Activity Theory have their role. But as useful as they would be, I am sceptical of unifying theories or magic bullet policies. Nor am I certain that criminology is the type of science that Felson describes. Social science (and surely natural science to some extent) is more provisional, contextual and less preoccupied with seeing-is-believing. Criminology should however be systematic, thoughtful and contribute to the common good. Perhaps on that, we can all agree.
Felson, M., 2000. The Routine Activity Approach as a General Crime Theory. In: E. McLaughlin and J. Muncie, ed. 2013. Criminological Perspectives: Essential Readings. London: Sage Publications. Ch. 18.
In my last post (Crimmigration 20-May-2020), I said that “a simple stroke of the bureaucratic pen” can create significant suffering. This suffering may ripple through lives and communities for some time, much of it undocumented.
In my own research (working also with colleagues at the Centre for Gender and Violence Research), I record and seek to make known the stories of individuals who have experienced harm, through publications and through speaking to practitioners and policy-makers. Much of my research has been focused on the impact of words and specifically how issues are represented. At the end of last year, for example, and reflecting on data collected from over 500 individuals involved in selling sex, I published an article asking whether it was time that policy-makers dropped the term ‘prostitution’ and found better words to recognise the shifting spectrum of entrepreneurship, work, survival and exploitation that constitute the sex industry. Similarly, in an article on female genital mutilation with colleagues here at Bristol and at University of Roehampton, we drew on the voices of FGM survivors to think critically about the use of the word ‘mutilation’, the perception that FGM is a ‘cultural practice’ and how far it fits better under the category of ‘child abuse’, for example.
“Well”, you might say, “people are experiencing trauma, harm or violence and you are fretting about what we name it? That’s hardly going to change the world.”
Except I believe that words matter. First, words are the building blocks for ideas or ‘discourses’ – the meanings that we attribute and the stories that we tell. They can convey or indeed misrepresent the visceral reality of harm. Second, words can themselves be harmful through misrepresentation, malevolence, or their absence. And finally, how we represent and understand something informs how we respond to it. For example, the Macpherson Report into the police handling of the Stephen Lawrence murder enquiry did not find a ‘few bad apples’ with racist opinions as was originally suggested – it found that the Metropolitan Police itself was institutionally racist. This meant that sacking or suspending officers was not enough: whole organisation change was required.
I was reminded of the power of words and ideas when I read an article on the BBC website this morning entitled Coronavirus: the human cost of virus misinformation. The piece details examples from around the world where individuals have ingested substances they believed to be curative, such as hydroxychloroquine, alcohol or disinfectant, some to lethal effect. In other cases, the belief that COVID-19 was a hoax or a conspiracy led individuals to ignore safety advice and put themselves and others at risk. Misinformation has spread, alongside the real epidemic, through the internet, broadcast media and politicians.
Imprecision in our use of words can also be harmful. Many among the UK public are trying to interpret what the new UK lockdown easing message ‘stay alert’ means in practical terms. The Police Federation for England Wales called for further guidance on the implications for enforcement as this new grey zone may strain the principle of policing by consent.
The English novelist Angela Carter said that “Language is power, life and the instrument of culture, the instrument of domination and liberation.” In the tales we tell about crime and harm, our pens can illuminate, empower and bring material change, if we handle them with care.
In an interview on Channel 4 News this week, Karolina Gerlich, executive director of The Care Workers’ Charity – and herself a care worker – was interviewed alongside Conservative MP Caroline Nokes about the points-based immigration bill, voted through the House Of Commons on Monday evening. Immigrants need to be designated ‘skilled workers’ and earn a minimum salary of £25,600 to work in the UK. The points are tradeable, so if, for example, you earn less than £25,600 but more than £20,480, speak English at the required level and are filling a vacancy in a shortage occupation, you might be able to achieve the 70 point threshold.
The Government has made some exceptions in the ‘lower-skilled’ worker category to enable seasonal workers in agriculture – such as fruit pickers – to continue to work here as needed.
Social care workers, however, are not considered ‘skilled workers’ despite their critical role in caring for society’s most vulnerable. During the current pandemic, Gerlich notes that ‘some care workers have had to take on new responsibilities, such as certifying causes of death or delivering wound care, that would previously have been carried out by district nurses’. Skills for Care estimate that 8% of the workers in the UK social care sector, equating to 115,000 jobs, have EU nationality, and 9% (134,000 jobs) have non-EU nationality.
In the Channel 4 News interview, Gerlich said starkly that the Bill shows that the Government values strawberries more than people. And these are the same politicians who are clapping for NHS staff and carers every Thursday evening.
Caroline Nokes MP, a former immigration minister, had in Parliament called for a temporary extension of visas for care workers, and indeed ancillary staff such as hospital cleaners. Yet this would represent a short-term measure to see us through the COVID crisis, rather than a longer term commitment to the professionalism and essential contribution of these workers.
Our politicians surely do not seek to engender suffering, uncertainty, familial separation, lack of gratitude or respect for individual dignity and worth: but a simple stroke of the bureaucratic pen can do exactly that.
The agreeably rational term, ‘a points-based system’, deflects the reality of immigration control, which involves surveillance, arrest, punishment, detention and exclusion. This set of social practices and infrastructure are referred to by lawyers and criminologists as ‘crimmigration’.
This infrastructure fuses the traditional criminal justice sector – police, courts and prisons – with the border institutions, such as ports and airports and new legal vehicles delivering tribunal justice. It is increasingly delivered through the private sector (for example, Serco were in February 2020 awarded the contract to run immigration detention centres at Gatwick – see related blog 20-May-20 Outsourcing), through non-justice related public services such as higher education, and through the individual and intimate spaces of access to work, healthcare or marriage.
While the Windrush affair exposed the grave injustice (and implications) of the crimmigration culture, there is no sign of rowing back on the hostile environment. Indeed, Bowling and Westenra (2018, p.178) argue that such discourse is perceived by many simply as ‘good management of migration’.
And that is nub of it. Home Secretaries must be populist, must be tough, in order to be seen as effective. To try and infuse some compassion and common sense into the management of borders and people, is seen as ‘soft’.
This is how we arrive at a situation where Karolina Gerlich can observe, without undue exaggeration, that the Government appears to prioritise strawberries over care workers.
‘Calls for a public inquiry’ is a phrase we hear increasingly. Early in the pandemic crisis for example, there were demands for inquiries into the Government’s response.
Public inquiries are set up to establish disputed facts, determine accountability, restore public confidence… prevent recurrence of events and tak[e] forward public policy” (House of Lords Select Committee on the Inquiries Act 2005). In this way, inquiries look back at what happened and seek to prevent harm in the future. They are a potential vehicle for transparency and can have a cathartic value (Beer, 2011).
Inquiries may have a formal statutory footing, such as the Independent Inquiry into Child Sexual Abuse, or a non-statutory format, such as the Hillsborough Panel. Indeed, a more flexible and responsive arrangement has become increasingly important given the diverse challenges facing society (Mackie, 2012).
Public inquiries are also highly political. They can be a means to kick issues into the long grass; they can be closed to public scrutiny (see the Chilcott Inquiry on the Iraq War); and the government can decide or influence the appointment of inquiry heads and the terms of reference. As we saw in the Grenfell Inquiry, terms of reference – what the inquiry will and will not look at – are crucial. The 2017 terms focused on the Grenfell Tower disaster and the actions or omissions of Kensington and Chelsea Borough Council and the London Fire Brigade, for example. However, the broader issues about the management and maintenance of social housing by successive governments were not in scope.
Too often, there is a failure to address report recommendations. Sixty-eight public inquiries have been active or established between 1990 and 2017, at a cost of millions, and “only six have received a full follow-up by a select committee to ensure that government has acted” (Norris and Shepheard, 2017, p,26). In part, perhaps, the sheer volume of recommendations can hinder rather than help track accountability (the Francis Inquiry, for example, into failings in care at Mid Staffordshire NHS Foundation Trust between 2005 and 2009, made 290 recommendations).
In an article in the academic journal Theoretical Criminology, Greer and McLaughlin note how ‘scandal’ has become the key driver of public inquiries: be that “alleged corruption, incompetence [or] immorality” (Greer and McLaughlin, 2017, p.113). It is entirely right that individuals and institutions are held to account. The public inquiry should be a vehicle to reflect on failures within state and society. Victims should be given a central voice in that process.
However, Greer and McLaughlin argue that:
“Unlike its welfare state predecessor, today’s public inquiry is immediately interpellated into the scandal machine. Its members, processes, practices and findings may be subjected to trial by media just as much as those implicated in the scandal it has been established to regulate. Scandals are challenging the defining qualities of competence and honesty that determine the trustworthiness and legitimacy of public sector institutions and the individuals that work in them. (Greer and McLaughlin, 2017, p.129)”
Where state provision is so often outsourced, it is problematic that the focus of inquiry attention is predominantly on those organisations representing an increasingly hollowed out public sector: the London Fire Brigade and the Kensington and Chelsea Borough Council, for example, in relation to the Grenfell disaster. While they certainly have questions to answer, the private sector contractors who clad social housing blocks and the governments who have facilitated a culture of cost over quality and weak oversight, must give their account.
There is also a question of how the scandal culture elides with the now over-used phrase, ‘calling out’. Facilitated by social media, much energy is devoted to identifying and castigating the wrongdoers and sympathizing with the wronged. This is crucial in challenging the powerful and seeking to restore the victim. There are three concerns however: first, to understand what has gone wrong and how to prevent it, we need to hear not just from victims, but also from those responsible. It is difficult to do that from a scandal footing, which compounds the urge to conceal and deny. Attempts in medicine to move from a blame culture to a just culture (in theory at least), a culture where there is learning from mistakes, is of potential value here.
Finally, we should be more alert to the culture and systems which make future harm possible: this requires ongoing interrogation of our values. Often the harms that lead to public inquiries had ample signposting. We should listen proactively to the Cassandras, be they victims of abuse, community groups or care workers.
Today’s blog is an interview with a Family Court Magistrate in England and Wales, exploring: a typical day, how magistrates seek to promote the best interests of the child, and the early impact of the COVID-lockdown. My sincere thanks to the contributor for their time in preparing this.
What does a typical day look like for you?
A typical day in Family Court actually begins 2 – 3 days earlier when I receive an email (via the Court’s secure server) giving me the List of cases I am due to hear and briefing papers to read before I go to Court.
I normally arrive about 30 – 45 minutes before the first hearing is due to start to discuss the day’s cases with the other 2 magistrates who are sitting that day and our Legal Advisor. This takes place in a retiring room outside the Court. Depending on the type of cases, we may also go into Court to have a brief discussion with the CAFCASS Officer.
Often, the start of a day is very quiet for magistrates. Participants in cases may want to discuss with each other, supported by the CAFCASS Officer, to see whether an agreement can be reached on some, or all, of the matters in dispute. Magistrates are always happy to allow time for this as an agreement between the parties is likely to work better than having an Order imposed on them. We take no part in these discussions and our Legal Advisor will check periodically with the parties and update us on any progress.
At some point, our Legal Advisor will tell us that one of our cases needs our attention and we will enter Court. What happens then will depend on the type of case but, more importantly, whether one or both parties is represented by a solicitor/barrister or whether they are appearing as Litigants in Person.
If the former, we will ask the representatives to brief us on the latest position and ascertain what Directions or Orders they are proposing for us. If all parties are agreed, and we are happy with the way forward proposed, we will make the Order or Directions and leave the Court ready for the next case. If there is only partial – or no – agreement, we will hear from all parties and, depending on the stage the case has reached, either make an Interim Order or set the case down for a Final Hearing at a later date when both parties will give evidence and we will decide the outcome.
If, as sadly is the position more frequently following the Government restrictions on Legal Aid, neither party is represented, magistrates usually take a more interventionist stance. If I am chairing the Court, I often begin by explaining, in simple terms, the whole Court process and what parties should do and what they should expect. I would then talk to each party in turn, informed by my pre-Court reading, to see whether agreement was likely on any aspect. Depending on the stage of the process, the CAFCASS Officer may also be in Court to offer advice and guidance to both the parties and the magistrates. As a result, Orders or Interim Orders may be made but, failing any measure of agreement, the case will, again, be listed for a Final Hearing.
Every day is different. Sometimes we will deal with Private Law cases – for example, disputes between 2 parents over residence or contact with a child, or grandparents wanting to see their grandchildren. Other days involve Public Law cases where a Local Authority is concerned about the safety and welfare of a child. But days are rarely boring and we always remember that our duty is, according to the first paragraph of the Children Act, the health, welfare and safety of the child or children in the case.
What was your route into this role and is the job what you expected?
I had to make a long journey by car and, as I was alone, I put the radio on and heard someone talking about the magistracy. It sounded interesting so I went and sat at the back of my local Court to see what happened. There was a District Judge presiding, rather than magistrates, who was someone that happened to live quite close to me, although I didn’t know him particularly well. However, that evening, he came and knocked on my door and asked what I was doing in Court. When I said that I was wondering whether I might enjoy being a magistrate, he was very supportive and helpful and convinced me to go ahead.
I was appointed in 2002 and, like all magistrates at the time, I began in the Adult Criminal Court. Very early in my career, I was sitting on a trial in which a man who was charged with domestic violence pleaded not guilty. Having heard the evidence, we retired to consider our verdict. I had just finished proof-reading my wife’s book on the subject so I had fairly strong views and expressed them! One of my magistrate colleagues that day was Chair of the Family Court and, listening to my comments, immediately invited me to become a Family magistrate. I have sat in both Adult Criminal and Family Courts ever since.
I’m not sure what I expected from either role, but I have learnt so much that I am certainly pleased I applied.
How well do you think the family court system in England and Wales operates, including in terms of (a) promoting the best interests of the child (b) supporting parents and (c) protecting individuals from abuse?
I’m not sure that, as a magistrate, I’m the best person to answer that. And the 3 parts of the question are inter-linked so, for example, in fulfilling our legal responsibility to protect the welfare and well-being of the child, there are times when we cause parents considerable distress.
But, taking each part in turn: we certainly try and promote the best interests of the child. However, we almost never meet the child and so, can only make judgements based on the information that is presented to us. In addition, some children are so damaged by the time their cases come to Court, that there are no good outcomes – we are forced to decide which is least damaging. For example, if a child can’t safely remain with his/her birth parents, is it better to place them with a family relation, who may also have problems, or go for an adoption with all the trauma that brings for all, particularly knowing that the child may never again see the birth parents? Or, in a Private Law case, is it better for a child to see a father who has clear problems, ensuring, of course, a safe place for meeting, or to deny that child any contact with the father? Sometimes the child is old enough to express an opinion, which we will take into account, while making it clear that it is our responsibility for the decision, not the child’s. But there are no right or wrong answers, we simply need to use our best judgement.
Regarding support for parents, Court cases are emotional situations and never easy. Magistrates are trained to deal with parents sympathetically but we must legally prioritise the best interests of the child so, in some cases, have to say ‘no’ to parents. And when that happens, once parents leave Court, I’m not sure how much support is available – certainly none from the Court itself.
Finally, on the question of protection from abuse, we try, if we decide that contact between a child and, say, a father who has been abusive to the mother, is appropriate, to put in place a contact structure that will protect the mother, for example, using a Contact Centre. But, we can – and I’m sure, do – make mistakes as we are dependent on the information provided to us and some abusers are very convincing witnesses.
What challenges has the family court system in England and Wales faced since the COVID-19 lockdown?
The challenges can’t be overstated. The Family Court system, in common with the Criminal Courts, has always worked on a face-to-face basis, so the COVID-19 lockdown changed everything, almost overnight. Most Family cases were adjourned; where this wasn’t possible, they have been dealt with, either by Judges or by Legal Advisors in line with their delegated powers. As a result, few magistrates have attended Family Court since mid-March, although I (and several of my colleagues) have had phone calls from Legal Advisors seeking confirmation of proposed Orders that are beyond their powers.
A small number of relatively straightforward cases have been dealt with by magistrates via telephone and the general view has been that the hearings went well. As in a normal Court day, a pre-court brief was held at the start of the day to discuss roles and how the bench would agree and prepare their reasons.
It is likely that any return to pre-COVID-19 practices may be very slow, even once lockdown begins to be lifted; many Family magistrates are getting towards the ‘vulnerable’ age or have underlying health conditions which means that they may be reluctant to make an early return to Court.
One alternative that is being actively considered is the use of video hearings. Questions of security, reliability of Broadband – some magistrates live in remote areas where this is a problem – and training in the effective use of the technology are all issues that need to be addressed before this can be considered a viable solution. In particular, many of those bringing cases to our Courts are Litigants in Person and their ability to access secure sites may prove the most difficult challenge.
How far do you think the lockdown experience will have longer-term implications for how family justice is delivered going forward?
I think it is too soon to tell. As stated above, some use of technology is being considered and, if trials prove successful, this may become part of the Family justice experience in the future.
For now, it is clear that the main long-term implication of the lockdown is thata major backlog is building up. This will mean that children may remain in unsafe conditions for longer than they should, possibly experiencing the trauma of the increased levels of domestic abuse that are being reported.
How and when will this be addressed is a question that will need to be dealt with as a priority once some form of normality returns.
My new bedtime read is The Tesseract by Alex Garland (1998). It tells the story of gangsters, mothers and children in Manila, through four interweaving story-lines. I am only a quarter in, just starting the second story-line. The first introduced the character of Don Pepe, a ruthless gang lord who runs various protection rackets. We are told in one recollection how, in a moment of unguarded over-familiarity, a farm overseer pats Don Pepe briefly with a hand sticky with sweat and cane juice, marking his suit. Don Pepe orders for the man’s hands to be amputated, fatally.
I am struck by how often in fiction and screen-writing, crime bosses exhibit all the traits of what we currently call ‘fragile masculinity’. DiMuccio and Knowles (2019) describe fragile masculinity as, “anxiety felt by men who believe they are falling short of cultural standards of manhood”. They say that it can “motivate compensatory attitudes/behaviours meant to restore the threatened status of ‘real’ manhood”. Think of the thin skins on display in Goodfellas, Scarface, The Godfather trilogy, American Gangster or The Wire. The term is also used to describe certain political bosses.
In some ways the ascription is circular. The majority of lead criminal characters in fiction and on-screen are men (art imitates life). These characters are almost always over-masculinised, because they in turn informed and exemplify the definitions of hegemonic masculinity, hypermasculinity or toxic masculinity. All such idealised forms of masculinity lead those who try to embody them prone to fragility.
Female criminal characters also tend to be positioned around a gender binary: seen to ‘take on’ masculine characteristics in order to perform their villainous acts. Think of Lady Macbeth’s cry of “Unsex me here/And fill me from the crown to the toe top-full/Of direst cruelty!” Recent representations of female crime leads (such as Villanelle in the BBC America series Killing Eve) have tried to divest women from the role of love interest, ice queen or token woman, for example.
These women can order amputations, as women.
Fragile masculinity is a fictional trope in crime-writing and may appear too two-dimensional to be useful in applied criminology (or beyond). Yet anyone working in the field of gender violence or with young male offenders will likely concur, applied with nuance and context, fragile masculinity appears to resonate.
At the same time, strip back gender and it is perhaps fragility which is the key factor. Formed early by emotional neglect, harsh treatment, or untrammelled social entitlement. A fragility of ego, which would make a sticky hand mishap a grievous personal offence.
A very interesting story in this fortnight’s Private Eye magazine (No. 1521, p.10) about the use of private companies Sodexo, G4S and Serco running the drive-through COVID-19 test-centres. There are currently 27 centres running, with plans to expand to around 50. The article focuses on the recruitment of temporary staff to train as swab testers and team managers. According to job adverts, neither role requires clinical experience, although experience of working in such an environment “is desirable”. Private Eye argues that, “The hiring of a generic privatiser using temporary, non-medical staff in a key COVID-19 response means that the Government can hit the ‘off’ switch when the worst of the crisis is over”.
Those who are interested in the contracting out of criminal justice services in recent years will recognise the three companies named. G4S and Serco had to refund the UK Government a combined total of £180m following over-charging by both companies in relation to contracts to tag offenders. A Serious Fraud Office inquiry was opened in November 2013 when a PricewaterhouseCoopers external audit suggested that, “the firms had been charging for tagging criminals who were either dead, in jail or never tagged in the first place” (BBC, 2013). Back in 2012, G4S was criticised for providing insufficient security at the London Olympics and prison and detention centres run by the company overseas have been associated with high levels of violence and abuse.
In a shake-up of the Probation Service in 2015, the Government outsourced the supervision of low and medium risk offenders to Community Rehabilitation Companies (CRCs): six of these 21 CRCs were run by Sodexo. In 2019, the Chief Inspector of Probation identified this model as “irredeemably flawed”. A National Audit Office report suggests that the Ministry of Justice paid £467m more than planned under the original CRC contracts. Supervision of offenders is now in the process of being brought back under public management.
Elsewhere in the criminal justice sector, the weakly regulated privatisation of forensic science services in 2012 (following the closure of the publicly owned Forensic Science Service (FSS)), has led to what the chair of the House of Lords Science and Technology Committee called in 2019 a ‘breaking point’ in forensic provision. The concerns here are around capacity and potential for miscarriages of justice.
Returning to the top story, private providers can be agile in setting up, managing and winding down services, as needed. They are therefore an attractive proposition. Other than an ideological aversion to private sector involvement in the delivery of public services, why should we be concerned?
Following years of under-funding in the public sector under austerity, the COVID-19 virus hits hard. The Government has had to build capacity quickly. Despite their chequered history, the same crop of companies appear repeatedly to win Government tenders and are no doubt making significant money for their directors and shareholders. Yet their performance in recent years in the criminal justice and other sectors suggests they need careful supervision to assure service quality, safety, employee rights and cost control. There is then both an immediate question about the selection of private partners and a broader question about the overall rationale for outsourcing.
A few years ago now, I read ‘In Cold Blood’ (1966) by Truman Capote. You might also know his earlier book ‘Breakfast at Tiffany’s’, via the 1961 film adaptation starting Audrey Hepburn and George Peppard. He is an author I am fascinated by and, over time, I making my way through his published work.
In Cold Blood is a novel which tells the true story of the 1959 murder of four family members in the farming community of Holcomb, Kansas. (Indeed, watching the recent White House Farm series on ITV reminded me of this book). The Clutter family were an affluent and church-going family, well-liked in Holcomb. The parents Herbert and Bonnie lived at the farm with their two younger children, Nancy (16) and Kenyon (15); two older daughters had already left home and the farm was busy with up to 20 employed farmhands.
Their murderers were two recently-paroled offenders from Kansas State Penitentiary: Perry Smith and Dick Hickock. Hickock has heard in prison from a fellow inmate and former farmhand that Herbert Clutter kept significant amounts of cash in a safe on the farm premises: he hatched a plot to rob the farm, inviting Smith to join him, with a view to starting a new life in Mexico.
Capote was fascinated by the case, having read about it in the newspaper, and travelled with his friend Nelle Harper Lee (who wrote To Kill a Mockingbird) to Kansas to research further what happened. His final book is a triple-narrative, telling the story from the view of the victims, their assailants and local community members. It is a grimly compelling read.
Capote did however employ some poetic license, made a lot of money from its publication and did not endear himself to Holcomb residents, some of whom felt he took advantage of tragedy.
Such is always the balance when artists seek to represent crime and harm through their medium. Yet for me, Capote’s fictional truth of the Holcomb tragedy continues to provide insight, even 54 years after its publication.
Criminology Tales 
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