Flat Earth News

The futility of punishment

The Guardian, April 2004

There is order in the court. There is chaos on the streets. And they meet in the main hall of Thames magistrates court in the East End of London. It is busting with people - this guy made of muscle yelling at his tiny female lawyer "This is MY case, this is MY life"; the elegant Somali man with the beautiful black suit cruising quite lost through the crowd without a word of English to find his way; the young Bengali lad who just blew a spliff in the toilets; the prosecutor reading "God Knows" by Joseph Heller; the little knot of regular defence lawyers, Charlie and Teresa and Denis and Keith, swapping the gossip and wondering how long it will be before somebody tells them the new security code for the door to their room so they can finally start work for the day.

The courtrooms open. Here come the overnights - the people who've been arrested by Hackney police and held in the cells for this morning's hearing.

Case One: male, white, aged 26, charged with theft of eight packets of bacon from Londis supermarket - tested postive for heroin and cocaine. Case Two: male, Bengali, aged 19, charged with theft of £59.63 of food from Tesco - tested positive for heroin and cocaine. Case Three: male, white, aged 32, charged with harrassing his mother and stepfather by kicking down their door, breaking their window, threatening them in persistent search for money - tested positive for heroin and cocaine.

The cases blur. Amost all male, almost all young, almost all of them trailing a string of other cases that have just been dealt with or are about to be dealt with, almost all of them already serving one or more community punishments, many of them with unpaid fines. And over and over again, the magistrates' mantra, "tested positive for heroin and cocaine". (Finally, an overnight defendant appeared who had not tested positive for drugs. He was an alcoholic.) Most of them plead guilty and are adjourned for reports.

This is the story of a week in court - the story of what happens when the criminal justice system finally deals with the mere 3% of offences which it manages to capture. The courtroom is the crossroads for all the players in the system. Here is where the police send those they have arrested. Here are the prosecutors with the evidence they have collected. Here are the probation officers and the prison escort officers waiting to dispose of the guilty. Here are the offenders "brought to justice". And here is the question: what does it achieve?

It is a question of acute importance in a system which now more than ever relies on court-sanctioned punishment as its mechanism for controlling crime. As this series has already described, the Home Office has quietly compromised its innovative crime-reduction programme, including its support for problem-solving policing; and the National Treatment Agency has taken the promising initiative to give treatment to drug users and smothered it in misconception and mismanagement. In the background, the probation service, which was once the world leader in tackling the causes of crime, has been sliding into a state of demoralised chaos - restructured, mismanaged, starved of funds, overburdened and now on the verge of being restructured yet again. With its best efforts at rehabilitation struggling, this government now presides over a system which is overwhelmingly devoted to punishment, handing out more jail sentences and more community punishments than ever before in the history of this country. What does it achieve?

Look at this man here, standing in the dock, fiddling with his fingers. There is something Victorian about him. It might be the respectable best suit he is wearing - white shirt, black tie and a black jacket that's so big he must have borrowed it. It might be his supplicant posture, his hands neatly folded in front of him, his head hung down on his chest. It might just be the sheer frailty of the man. He is as thin as a whippet, his face is as pale as paper, and he is quivering slightly as the district judge and the clerk of the court assemble the facts about him.

At first, the case of Mathew King sounds simple enough. On January 17 last year, in this same court, he admitted driving whilst disqualified and trying to syphon petrol out of somebody else's car. He tested positive for heroin and cocaine. He was given a 12-month community rehabilitation order which meant he had to keep regular appointments with a probation officer, but in September, he failed to turn up twice, and now he is charged with breaching the order. He admits it, and the judge adjourns the case for three weeks so that probation can prepare a pre-sentence report on him.

Mathew King turns and slips quickly out of the court and, just as the door swings shut behind him, there is a fleeting glimpse of his life - a small woman with long blond hair and a face like a snapshot from another world. It is slightly frightening and immediately haunting and somehow familiar, the way her skin is stretched so tight across her cheeks that it has made her eyes grow large: this woman has the face of a starving child. Again, there is something Victorian here. And she is pulling at Mathew's black-jacket sleeve - no time to lose. Why the urgency? Where are they going with their pale, skinny bodies? What goes on in the private world of Mathew King?

Tracing him was easy enough: he had given his address at the start of the hearing. It turned out to be a tower block in the backwash of a motorway in the heart of what was once the teeming bustle of the London docks. The lift was busted. The stone stairs smelled of piss and garbage. On the fifth floor, just outside his flat, somebody had smeared something brown and nasty on the wall. And when the door finally cracked open on the security chain, there was Mathew and his world, shaped by chaos.

He was just back from Bethnal Green Road. He had gone there with the woman with the hungry face, who turned out to be his girlfriend, Lisa, and with John, who turned out to be the father of Lisa's two oldest children. The three of them live here together and every day they go to Bethnal Green Road to buy their gear. Everybody does. But today it went wrong. John gave £70 to this black lad on a bike. The black lad's mate kept Mathew and Lisa talking round the corner. The black lad rode off and just didn't come back, but Mathew knows him from a year ago and he's got a mate of his coming round - he's well over six foot and built out of bricks - and they're going to go back down there and sort him out. But just now they've got no gear.

Lisa sweeps the carpet. She is 29, although she looks nearly twice that. John fiddles with his fingers, which are mangled and maimed by bad injections. Mathew says he's had a letter from probation about preparing his pre-sentence report, and John gets it for him and - just look at this - it says "Please come and see me at this office. See address below." But there is no address below! And no phone number. So Mathew's going to miss another appointment. At least this letter reached him. The last lot got sent to his mum's house, and he can't go round there because he doesn't get on with his step dad. He's had all this with probation before. The last time he went, he said "What time have I got to be here?" and they're "You haven't got to be here." Then he tells the story of how he missed the appointments in September.

It's all about him and Lisa and the terrible business with the baby. But then again, it's not - it's all about their whole life. Mathew is 29, the oldest of two brothers, born around the corner in Mile End. His father was a drunk, used to smash the house up, and, when Mathew was five, he left. His mum gave him a chance to come back, but he just turned up and stole the stereo. Soon afterwards, his dad's mate came out of prison and came round to see him and found he wasn't there, so he moved in with Mathew's mum, and he's still there. His dad is still in the East End somewhere, still drinking. As far as Mathew is concerned, that man doesn't exist.

He went to Hackney Down school and he was no good at it, he still can't read or write except for his name, and the teachers picked on him, so he swore at them, and they sent him home, so he carried on swearing and didn't do no more school. The first time he was nicked was for breaking into a car when he was 13; he got a caution. He is good at breaking into cars. His crime was just silly stuff, though, until he started using gear when he was about 18. Then he got into nicking cars - he's sold a lot of taxis that way - and he was doing burglaries too (shops, not houses).

Lisa and John both came up the same broken ladder. Lisa's dad left, and she doesn't get on with her stepdad. John's dad died of cancer when he was young and then he got teased for wearing crap clothes because they were poor. Both of them were no good at school. John beat up a teacher and left early. Lisa ran away from home and by the time she was 12, she was selling herself down Aldgate to businessmen on their way home from the City, then she ended up in foster homes and secure units. She was 15 when she met John and got pregnant with their first child, a boy. The social workers didn't like the look of them, but John thought it would be OK: he was 20 then, working as a site supervisor down at Canary Wharf, and they had a room at a bed and breakfast on the Romford Road. But the social workers took the baby away, so that same day Lisa went and found her mate Nicola (she's dead now) and she smoked £50 of heroin in one afternoon. She'd never done it before. She's been doing it ever since. John was soon at it too - he just wanted to know where all his money was going.

Mathew didn't meet them until five years later. By that time, Lisa and John had just had a second son. Lisa was still selling herself, and John was on three kinds of medication for a paranoid obsessive disorder. He was committing crimes every day of the week to fund their heroin habit, so the social workers took this little boy away as well, although in the end Lisa's mum went to court and got custody of both Lisa's kids. Lisa and John sort of drifted apart. Mathew was arguing with his step dad and so he moved out to live with Lisa, and John stayed around.

Now, the three of them spend their days ducking and diving and trying to find gear. Most days, they'll spend £100 down on Bethnal Green Road for the three of them. They can get some of that in benefits, but most of it, they have to hustle, so they have to break the law. Most of the time, nobody knows about it. Then, once in a while, they get caught. Mathew has only been done half a dozen times. The worst one was when he and a mate broke into a car in the West End without noticing there was a police car parked right there in the road, so the cops chased them, and Mathew started driving like a maniac, going through red lights, heading the wrong way up a one-way street until finally the police cornered him on the Embankment. He got 30 days in Wandsworth for that and a driving ban, so he lost his job driving for a haulage firm (Mind you, he never had a real licence in the first place.)

Lisa and John also get away with most of what they do, although Lisa's criminal record fills six pages. She's had fines, community orders, five or six jail sentences. John's been done for theft, burglary, fraud, bits of violence including battering a cop, driving whilst disqualified. He's done 19 prison sentences. Nothing changes. It might have been different if there was real treatment around, if they could get a decent prescription for methadone or diamorphine, instead of the rations and rudeness they get from NHS clincis. Most of the time, no court even tried to help them. So, they still need £100 a day - and, by the time you allow for the prices the fences will pay, that means laying their hands on more like £500 of property. John says it's simple: going without gear is not an option; you do what you have to do; the law doesn't come into it.

It all bent out of shape last summer. Lisa was pregnant. She and Mathew really wanted the baby, but they were afraid the social workers would move in again, so they kept it a bit quiet. Then one day in June, Lisa fainted in the street - she can't afford money for food so she'll often go two or three days at a time without eating - and the hospital told the midwife, and the midwife told the social workers, and so Lisa and Mathew cut a deal with them: they would give up gear, they would sign on at the local NHS drugs clinic for some methadone, and so the social workers would let them keep the baby. They had to wait two weeks to get the methadone. When they got it, they were only allowed 40 mill a day, which wasn't enough. And they were refused injectible methadone, which was bad for Lisa, who is a fixer. But they stuck to the deal more or less. For the sake of their baby. Because they already loved the baby.

He was born in August. They named him after Mathew. They were proud and happy, and the baby was healthy - he wasn't addicted to anything - and they spent just about all day every day in the hospital, like real parents. And after two weeks, the social workers took the baby away from them. It did their heads in. Lisa says it really did Mathew's head in. He thought they had a deal. He just couldn't see the fucking point of doing anything any more. Then, Lisa and John got into a row with the staff at the drugs clinic, and they got banned - except that John was wearing Mathew's hat, so they banned Mathew instead of him. Mathew wasn't that bothered. They just went back down Bethnal Green Road.

And that's how Mathew ended up back in court. Not that they got nicked down there, just that Mathew couldn't see the point of keeping his probation appointments, so he ended up with a letter telling him to turn up at Thames magistrates court. That's a hassle. He's got to find this probation officer with the secret address. But before he does that, he's got to go back down Bethnal Green Road and get their £70 back off the little toe rag that rode off with it this morning.

And then what will this court hearing achieve? At what point in a typical day do Mathew and Lisa and John stop and quietly consider the impact of their behaviour on anybody else or on themselves? At what point do they consider anything at all beyond finding some way to get hold of £100 a day? Born and raised in chaos, they have been punished before by the system, often for good reason, but never changing their behaviour, occasionally becoming much worse. Surviving now in chaos, at what point does the threat of punishment stop them committing a crime?

There are signs of the government changing its track. Following January's Carter report, it is setting up the new National Offender Management System, which is supposed to cut the rise in the prison population. It wants to use new day fines - geared to the income of offenders - and also its Sentencing Guidelines Council to encourage courts to use more fines for petty offenders. The Crown Prosecution Service has plans to extend the use of cautions by adding conditions to them. But these moves are designed to take the pressure off the prisons and the courts. None of them challenges the underlying assumption that punishment is the primary tool of crime reduction.

If they had been born 40 years earlier, Mathew and Lisa and John would have been allowed to get clean drugs from their GP. John would not have lost several fingers and half a lung from blood clots. Lisa would not be suffering from malnutrition in the heart of one of the richest cities in the world. None of them would be involved in stealing something like £500 of property a day. As it is, they can turn to the NHS which will offer them long delays, lots of paperwork, tight rations and lectures about abstinence, or they can come to court to be punished.

The courthouse is busy again when Mathew and Lisa turn up there a week or so later. An ulcerated old man whose boot laces are tied up round the ankles of his trousers, totters around the hall looking for a lawyer. A fog of nicotine rolls out along the ceiling from the smoking area. There are two televisions mounted on the walls: the studio audience are clapping, the caption says "Leave my lover alone". Outside court number three, a baby in a buggy is crying its lungs out.

Mathew has got his act together and found the probation officer who needed to see him, even without an address. And the pre-sentence report is OK. It explains that Mathew missed the two appointments because he was so upset about losing the baby and it recommends another community sentence. Mathew's lawyer is good at his job. Lisa and John sit in the public gallery, while Mathew takes his place in the dock.

The district judge has a dark suit, gold-framed glasses on the bridge of her nose and pearl ear-rings. For two or three minutes, she reads the report from probation. The court is quiet. "Yes," she says finally, in a voice just like the Queen's.

Mathew's lawyer starts: "I think it's worth noting - "

But the judge cuts across him: "He was fortunate, wasn't he, to be given a probation order in the first place?" She seems irritated. The lawyer continues, reciting all the appointments which Mathew did keep before he missed just two. She sits with her eyes shut and then cuts in again: "He was given the opportunity but he doesn't seem to have taken it." The lawyer quotes from the probation report and explains that Mathew has had his baby taken from him. "Because he is a heroin addict," says the judge as though that explained everything. The lawyer keeps making his points, the judge keeps interrupting, Mathew is looking paler than ever. Then suddenly, the judge has heard enough.

"Mr King, will you stand please? You were given the opportunity of doing a community penalty and you chose to lose contact with -"

Now Mathew interupts: "I been in contact with them. I give them my new address. I give them my mobile number. I been down there before this court business started."

"You have had your opportunity. Now you will go to prison." Mathew stares blank at her, as she hits him with it: "Three months on each count."

He turns towards the public gallery, breathless. Lisa is on her feet. She knows in an instant that the prison is not the problem - it's having no gear that is going to hurt him. And she knows he hasn't even got a pack of cigarettes in his pocket to help him get through it: he was never expecting to go to jail. Two security men are closing in on the dock. Lisa leans out of the public gallery, her cigarette pack in her hand, Mathew reaches out to grab them, the security men close in, Mathew stretches quickly, Lisa strains towards him, can't reach, the cigarettes fall on the floor. Lisa goes berserk, barges into the court, shouts that the judge is a scumbag, but the judge has gone. And so has Mathew. Mathew has been brought to justice.

Minutes later, Lisa and John slip away into the streets. They are in a hurry, just like they were when Lisa tugged Mathew away from court a few weeks ago. They have to get down to Bethnal Green Road. On the way, they have to find £100 from somewhere. Justice has been done today. Chaos has encountered order. And what did we achieve?

* At his request, Mathew King's name has been changed.

See below for background statistics

How the courts increased their sentences:
During 2002, all courts gave immediate prison sentences to 111,600 offenders - a record and 53,500 more than in 1992.
During 2002, all courts gave community sentences to 186,500 offenders - a record and 84,100 more than in 1992.

How the magistrates made community sentences more punishing:
In 1992, rehabilitation orders (then known as probation orders) accounted for 41.5% of all community sentences. In 2002, they accounted for only 31% of community sentences.
In 2002, rehabilitation orders accounted for only 2.2% of all magistrates sentences.

How magistrates moved from fines to prisons:
In 1992, magistrates fined 1,074,800 offenders. In 2002, they fined only 894,300.
In 1992, magistrates jailed 10,300 offenders. In 2002, they jailed 26,500.

Outcomes in London magistrates courts:
81.7% of defendants plead guilty;
8.9% are found guilty in their absence;
7% are convicted after summary trial;
2.1% are acquitted after trial;
0.3% are dismissed with no case to answer.

Note: A community rehabilitation order (formerly known as a probation order) requires the offender to stay in regular contact with a probation officer for up to three years. In some cases, the court may also require attendance for treatment or other courses.
A community punishment order (formerly known as a community service order) requires the offender to perform up to 240 hours of unpaid work.

>>> Archive of Nick Davies work >>> Flat Earth News is now out in paperback Flat Earth News >>> Reporting Masterclass