Can Wales learn from Estonia?

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There was some speculation last week about whether the UK government would take up an opportunity to fly criminals to Estonia so that they could serve their time in an Estonian prison rather than an overcrowded British one. The speculation didn’t last long. But the question that I found myself wondering about wasn’t so much whether the UK should seize the opportunity as why the opportunity existed in the first place. Why are there so many unused places in Estonian prisons that renting them out looks like an opportunity?

The numbers aren’t enormous anyway. With a population of less than one and a half million (too small to be a country at all, according to many unionists) Estonia only has around 3000 places, and a majority of those are occupied by people incarcerated by Estonian courts. Any difference it could make to the UK’s current problems would necessarily be marginal. Conditions, though, tend to be better than those in the UK, although that would be an obvious problem for the UK’s tabloids who seem to dictate government policy on the issue.

Asking why Estonia has spare places leads us to a question about why the UK is imprisoning so many people in the first place. Debate on crime has become something of a contest between the two main UK parties to see which can promise to imprison the greatest number of people for the longest periods for the greatest possible range of offences. And demands for ‘justice’, and ‘bringing people to justice’ often sound more like a demand for retribution and punishment; true ‘justice’ is a rather more nuanced concept. Punishing people who have transgressed against the rules which society has laid down (leaving aside here any question as to whether those rules are themselves fair or reasonable) is one reason for imprisoning people, but prison is only one possible means of punishment. Locking up persistent offenders may prevent further offending during their period inside, and that’s a second possible reason for using prisons. Rehabilitation and re-education is a third, but the extent to which that happens in overcrowded, underfunded and understaffed prisons is limited to say the least. Then there’s deterrence, but the extent to which lengthy sentences deter people from committing crimes is debateable. Many crimes are ‘spur-of-the-moment’ rather than preplanned, and deterrent only works if potential criminals are carefully analysing the potential outcomes before deciding to commit a crime. And that analysis would necessarily also include the chances of being caught – when criminals know that understaffed police forces will simply fail to investigate many crimes, the power of deterrence is significantly weakened. We also know that many of those incarcerated have real problems with mental health or substance misuse, for neither of which are there adequate services available, and for neither of which is imprisonment any type of solution.

We know that sending people to prison has a number of consequences for both the individuals and their families. But it also has economic consequences – not just the costs of keeping people in prison, but also the economic loss if people lose their jobs and stop paying tax, an effect which can last long after release, during which time the benefits bill also rises. The impact on families can be severe; absence of a parent coupled with a reduction in household income can seriously affect children’s life chances, even if the family remains together post-prison. Sometimes, there is little alternative to a custodial sentence, but the political trend seems to be increasingly seeing it as a first resort rather than a last resort. Coupled with a reluctance to spend money on buildings or facilities for anyone in need in society – let alone for criminals – the Labour-Tory impetus to be seen to be tougher than the other leads inevitably to the sort of crisis which we now face.

It doesn’t have to be that way, though. Improved mental health and drug abuse services would help to avoid many crimes, and alternatives to imprisonment would not only reduce the costs but also help to maintain cohesive families. Perhaps there’s even a revenue opportunity for Wales opened up by the Estonian approach. If Wales were independent, or even if criminal justice were fully devolved, we could adopt an approach leading to reduced use of prison sentences, maybe even leaving us with spare capacity to rent out to the prison-obsessed English government.

Double standards

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As crimes go, failing to wear a seatbelt in a moving car is pretty minor stuff. There is, however, a difference between failing to fasten the belt when getting into the car – which might legitimately be described as a genuine ‘mistake’ – and removing it once the vehicle is moving. The PM has described it as an ‘error of judgement’, but there is no escaping the fact that it is, as a matter of fact, the deliberate commission of a criminal act. Whether it really deserves the attention of Mr Plod is open to debate. The police have better things to do with their time, even if this is an open-and-shut case, with the criminal freely acknowledging that he deliberately chose to break the law. The question is one of equity: if the police prosecute others for breaking this law, why should the PM be exempt?

In a strange way, it also ties in with another story from yesterday – the government are trying to amend the online safety bill to make it illegal to post any video which might show small boats crossing the channel “in a positive light”. They are probably going to struggle with producing a sufficiently precise definition of that to stand up in a court of law, but that won’t stop them trying, even though it is not entirely clear that getting into a small boat and crossing the channel is in itself an illegal act in the first place. But if a video giving a positive impression of an act which only might be illegal is to be banned, where does that leave a video giving a positive impression of an undoubtedly illegal act – such as being in a moving vehicle without wearing a seatbelt – to which the perpetrator has freely admitted?

Sunak is, of course, merely perpetuating the approach of his predecessor but one, for whom criminality is described by one of those pesky irregular verbs, whose conjugation runs: “I make mistakes, you commit errors of judgement, he is being prosecuted for the foulest of crimes”. It is not the commission of a minor crime by the PM yesterday which is the issue, it is the differing standards which the elite seek to apply to themselves. They expect us to accept excuses from them which they would never accept from the rest of us.  And that is something with which they should not be allowed to get away.

Punishment or deterrence?

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All human societies need a system of rules and need to enforce those rules. But approaches to setting and enforcing rules differ. One approach is to maximise social solidarity – to ensure buy-in from all members and work largely through persuasion. An alternative is authoritarianism, where transgressors are harshly punished and where those punishments are intended to deter others from transgressing in future. In practice, the differences are not so clear-cut – real human societies operate somewhere in between those extremes and invariably contain advocates of both approaches.

The coronavirus pandemic seems to have brought out an authoritarian streak in Wales as in the rest of the UK, with even those politicians whom I would instinctively have expected to support an approach based primarily on persuasion and social solidarity apparently baying for police crackdowns and harsher penalties. In the face of hard reality, the differences between those who claim to be on the political ‘right’ and those who claim to be on the political ‘left’ turn out to be less significant than I would have expected. It’s not clear to me what the purpose of higher fines would be – acting as a deterrent is the obvious motive but the rhetoric sounds much more like a desire to punish those who don’t comply. Whether higher fines would act as a deterrent is a moot point anyway; for the scale of the punishment to discourage a particular act depends on an assumption that the person considering committing such an act carefully weighs up the pros and cons first – and to the extent that he or she does that, the calculation of the probability of getting caught is likely to be at least as significant as the amount of any potential fine. For all the publicity given to a few exceptional cases, I suspect that the probability of getting caught is quite low, and that those ignoring the rules know that.

There are those who doubt that we need the restrictions on movement at all but I am not among them. I accept that the best route to controlling the pandemic lies in placing restrictions on our lives for the short term, and I accept the concomitant necessity for some form of enforcement. But where are the traditional advocates of persuasion and social solidarity in all this? It feels as though many have simply given up and joined the lynch mobs.

One rule for us...

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As various Tory leadership candidates line up to confess to the usage of controlled and illegal substances in their youth, they are asking us to judge them not on the ‘mistakes’ they made many years ago, but on their record since.  At first sight, this is an entirely reasonable request; I can see no reason why what people did when they were very much younger should be allowed to hold them back for the rest of their lives.  There is more than a slight whiff of hypocrisy here though.

All of them, as far as I’m aware, support the current law and government policy on drugs, under which those who at any point possess or use class A substances – at least three of the current leadership contenders – can be charged, prosecuted, and sentenced to up to 7 years imprisonment.  None of them seems to be proposing any changes to that law.  And for those who get caught using such drugs (often people who are already disadvantaged in other ways) the criminalisation process can and does have a severe effect on their prospects for the future.

It seems to me that those Tories asking us to forgive and forget their ‘youthful mistakes’ are actually asking us to treat them differently from ‘common or garden’ drug users because a) they never got caught, and b) they come from a particular social demographic.  I’d have a lot more respect for their position if their own experience had helped them to see how and why some people get caught up in drug usage and gave them something of an insight into the problems with over-simplistic criminalisation.  Instead, all they seem to have learned is that people from the ‘right’ background who don’t get caught committing a criminal act can and should expect preferential treatment.

Due process

Tweet The Ched Evans affair rumbles on as he continues to protest his innocence despite the verdict of the court.  I don’t know the truth of that; courts can get it wrong, of course, but they don’t get it wrong anything like as often as often as those convicted claim.  The bigger question is about his putative return to football.  The lawyers always say that concentrating on individual cases makes for bad law, and that’s a fair starting point – so I’m not really going to comment on the individual case except insofar as it illuminates a more general problem.

There is a principle in law that once people have served their sentence, they should be rehabilitated, but it isn’t an absolute principle – there are a number of agreed exceptions.  The most obvious example is that sex offenders have to remain on the register for a period, and are, in general, barred from certain roles, such as working with children – often for life.

So there’s nothing particularly exceptional about a demand from some quarters that an individual should not return to a high profile rôle where he or she acts as a rôle model after committing certain types of crime.  And if that opinion is held as widely as it seems to be, then there is certainly a case to be made for legislation to enshrine that in law.  It’s something that I’d support, and something which has a great deal of relevance to the current case attracting attention.

Changing the law would enable proper consideration to be given to trying to draw up a set of definitions and rules which govern which jobs and which crimes would be covered, or at the very least creating a ‘due process’.  It’s probably impossible to arrive at a precise definition which covers all circumstances, but the usual way around that is to give discretion to the judges when sentencing those found guilty.  That approach also allows for the possibility of appeal and review.

The alternative to making it part of law, and allowing the judge to decide, is that individual cases become the subject of individual extra-judicial decisions, driven by the media and public anger.  No matter how much I agree with the stance taken by so many in the particular case, I can’t help but wonder whether this isn’t closer to being a form of mob rule than the application of due process.

It is, of course, much easier for politicians to join in the hue and cry – in what is close to the original sense of the phrase – than it is to initiate complex and probably contentious legislation; but isn’t initiating legislation when required what they are there for?  And isn't joining in the hue and cry effectively abdicating their responsibility to set proper rules?