Here comes an early Christmas present from Boris Johnson.
Just four months after his Beating Crime Plan, we are promised another slew of law and order measures, the centrepiece of which appears to be a ten-year strategy to tackle drug misuse, or as the Home Office has headlined it in a press release, a "once-in-a-generation drive to crush drug crime". More about that Drugs Strategy shortly....
First, the other announcements. Widely trailed and long awaited, the government will publish a plan for a Victims' Law. It was a commitment in the Conservatives' 2019 general election manifesto and is expected to recommend that guidance, contained in the April 2021 Victims' Code, is enshrined in legislation. According to reports in the Times, there'll be new rights for people affected by anti-social behaviour and strengthened complaints procedures. I don't expect much resistance to the proposals, but their impact will depend on the capability and capacity of agencies in the criminal justice system to enforce them.
As part of the focus on victims, Dominic Raab, the justice secretary, is keen on extending the use of a legal procedure known as 'Section 28', under which courtroom cross-examinations of vulnerable and intimidated witnesses can be recorded well before their trial takes place - with the judge's agreement. The recording, together with a video of the witness's initial police interviews, is played to the jury, meaning the witness is spared the ordeal of having to attend court.
Section 28 is currently available in England and Wales for children and those with mental disorders and physical disabilities; it's being piloted for adult victims of sexual offences and modern slavery - and Raab has said it should be used in more rape cases. He told the Commons Justice Committee in November: "I cannot see that there is a principled argument against it, but one impact that, anecdotally, it feels that it could increase is the number of guilty pleas as well as the number of convictions."
We would all welcome that, of course, but the Lord Chief Justice, Lord Burnett of Malden, is sceptical. His evidence to the Justice Committee makes for compelling reading because it raises a number of serious concerns. There were "fundamental questions" that needed answering before Section 28 could be rolled out, said Lord Burnett, who advised Ministers to "tread carefully" as it could "easily go wrong".
"If you talk to prosecutors and judges, there is a concern, anecdotal at the moment, that the cross-examination is not very immediate and effective; the evidence is not very effective, and there may well be increased acquittal rates," he said.
The head of the judiciary pointed to significant practical implications because Section 28 imposed "enormous burdens" on the courts. "The judge has to prepare as if for trial; the cross-examination may take half a day or a day; the lawyers have to prepare; the judge and lawyers have to come out of other trials, so trials are being disrupted. One of the real worries I have about expanding it too quickly is that it will result in the outstanding case load being kept artificially high because a lot of time and energy will be devoted to dealing with Section 28 cross‑examinations.
"I have been 40 years a lawyer and I like to proceed on evidence, not hunches," he added. Hopefully Raab has read the transcript.
Prison promises
The justice secretary is also putting the finishing touches to a White Paper on prisons, the first since the 'Prison Safety and Reform' plan five years ago, when Liz Truss was in charge at the Ministry of Justice (MoJ). In fact, one of the most significant changes in jails can be traced back to Truss's plan - for every prisoner to have a dedicated prison officer to engage with them one-to-one. Before the pandemic severely restricted jail regimes I was told this was beginning to make a real difference.
But a key part of her 2016 document, that governors should be empowered to make more decisions themselves, has not become embedded across the 117 establishments, partly because, when it comes to prisons, the MoJ has a tendency to 'lean in', to take control. The move to a centralised system in March 2020, to prevent the spread of the coronavirus, only exacerbated that. Raab has spoken about his desire to give governors more "autonomy", so his White Paper will no doubt continue a theme that began with Michael Gove, Truss's predecessor, though the question still remains: how much power are Ministers really prepared to cede to individual governors?
The eighth Conservative justice secretary in 11 years is an enthusiast for using data to drive up performance - and that too is likely to be a feature of his prisons White Paper, to help prisoners get jobs when they're released. Addressing MPs, ten weeks after being appointed, he said: "We need much better information early on when an offender arrives in prison on everything from the level of skills, and whether they are numerate and literate. The number of offenders in prison with the numeracy and literacy of a primary school child is shocking. We need to know their mental health state. We need to know their drug options."
The main challenge facing prison officials in the MoJ, however, is completing a £4 billion prison building programme: 20,000 places have been promised by 2026, to deal with a projected surge in the population caused by increased police officer numbers and tougher sentences for violent and sexual offenders. The construction project is unprecedented and presents a range of logistical, financial and political hurdles to overcome - as well as opportunities for creating safer jails better equipped for rehabilitation with enhanced security elements designed in.
On the subject of security, there have been reports that the White Paper will suggest using airport-style X-ray scanners to search prison visitors and staff; they are increasingly used on inmates suspected of concealing drugs and mobile phones. This is a sensitive area. The vast majority of prison officers are law-abiding and honest and and would never smuggle contraband into a jail. Sadly, though, staff corruption by a small number is a factor in the supply of illicit substances so tighter rules may well be needed. But the MoJ must get their consent for any tightening of search arrangements. That will mean discussions between the department and the main union, the Prison Officers' Association, which, historically, have not always gone very well...
It's the drugs
An "all-out war on drugs" is how the Sun summed up Boris Johnson's new drug strategy after the Prime Minister had outlined how he would halt the "pernicious" trade by cutting off supply chains and slashing demand. However, Johnson isn't quoted as using the precise phrase, 'war on drugs': a war hints at a battle that can be won and I doubt even the PM believes we can ever defeat the problems caused by heroin, cocaine, ecstasy and the rest. The best we can hope for is to make it harder for drug gangs to operate, reduce the harms caused by drugs and better educate and inform people about the dangers.
All three strands are represented in the new drug strategy, some details of which have been been briefed by the Home Office ahead of its publication, but it's the enforcement measures which Johnson and other Ministers are keen to emphasise: tough talk on drugs has traditionally played well with voters. So, there are pledges to dismantle 2,000 'county line' gangs, which move supplies around the country, make "thousands" more arrests, expand the use of drug testing of offenders and strengthen cross-agency working against organised crime.
The language used so far is in sharp contrast to the tone of the balanced and nuanced Strategy currently in operation, which was published in July 2017 when Theresa May was at Number 10 and Amber Rudd was home secretary. In the foreward to the document Rudd wrote: "By working together, we can achieve a society that works for everyone and in which every individual is supported to live a life free from drugs, fulfil their potential and enjoy a brighter future for themselves and their families."
So, the packaging is very different this time, but the content of the new Strategy seems as though it will be broadly the same with no fundamental changes. Since 1997, both Labour and Conservative governments have pursued a two-pronged approach - treatment and enforcement - eschewing legalisation or decriminalisation; Johnson has made clear that remains the case. Indeed, Dame Carol Black, whose Home Office-commissioned report on drugs provides a research base for the new Strategy, was told when she began work in 2019 that legal changes were off limits.
Black's thorough report is the yardstick upon which the Strategy should be assessed. One of her principal findings was that drug addiction and support services were under-funded and required substantial investment from the Department for Health and Social Care (DHSC) over the next five years. "We have concluded, based on current evidence of prevalence, that an additional £552 million is needed from DHSC by year 5 on top of the baseline annual expenditure of £680million from the public health grant, to provide a full range of high-quality drug treatment and recovery services," the report said.
When the gloss and rhetoric are stripped away from the Strategy, this is the figure to look out for. Does the investment in treatment come close to what Black's review says is required? It sets out what should be made available year by year, as well as the extra money needed for mental health services and employment support. But the former Royal College of Physicians president was canny enough to give Ministers a partial 'get out', if they felt the sums were unaffordable - and it may be that the Strategy takes that option instead. "Given fiscal pressures, government may have to take a long-term view and fund this programme over a time frame longer than 5 years. If this is the case, I strongly recommend ensuring the whole package is delivered immediately, with all its components, to those areas in greatest need," said Black.
It's not all about cash, of course. In all, Black came up with 32 recommendations including the creation of a central Drugs Unit, which would establish a 'National Outcomes Framework', co-ordinate work across government, hold departments to account and report on progress to parliament. In July, the government said the Unit had been set up and work was underway, overseen by the Minister for Crime and Policing, Kit Malthouse. If it emerges that the Unit really does have teeth, that would represent a significant development, with arguably more potential than the entire Drugs Strategy to tackle a problem that's bedevilled drugs policy - siloed working in Whitehall.
Elephant in the courtroom
There may well be other announcements on law and order, with Ministers poised to reveal plans on tacking harassment of women and girls, in particular, whether misogyny should be made a hate crime. The Law Commission's final report on the issue is due to be published imminently, following a consultation paper last year.
But the ideas and proposals to be unveiled this week will have no chance of success unless the criminal justice system in England and Wales starts to function properly. Charge rates for suspects are at record lows, the backlog of crown court trials is barely shifting and delays for victims, witnesses and defendants are now measured in years rather than months. There is a sense that the government's 'tour de force' on drugs, prisons and victims is a distraction from these most pressing problems.