Professor Kathryn Hollingsworth
Professor Kathryn Hollingsworth is a member of Newcastle Law School and is our Social Justice and Injustice Theme Champion. This blog from Kathryn follows her participation at the Howard League for Penal Reform Conference 1-2nd October 2013. Follow her on twitter @KathrynHollsNCL
What is Justice? Well, where do we start? Perhaps, as Professor Matt Matravers noted at the Howard League for Penal Reform conference (‘What is Justice? Reimaging Penal Policy’), it is easier for us to identify and agree on what is injustice rather than what is justice (a stance that Steve Crossley will be arguing when he gives a paper to the Human Rights and Social Justice Forum as part of the NISR series ‘Social Justice and Social Renewal’ on December 4th). Despite the difficulty of answering a question that has long vexed philosophers, the gauntlet was thrown down to academics and practitioners of criminology/criminal justice at the international conference held last week at Keble College, Oxford University.
In addition to being a law firm and a charity that campaigns for ‘less crime, safer communities and fewer people in prison’, the Howard League for Penal Reform also supports academic research. The ‘What is Justice: Reimaging Penal Justice’ programme is part of its wider research function and is being developed in order to encourage academics, practitioners and ‘free thinkers’ to reimagine penal policy, and to ‘develop innovative, credible and challenging ideas that build into models to change penal practice and outcomes’. This was the purpose of the Oxford conference that I attended and presented at last week.
We heard from 14 plenary speakers and over 70 researchers who presented papers across a number of parallel streams. A broad range of topics were covered – from public participation in the criminal justice system in China to criminal justice responses to adolescent-to-parent violence in England – but despite the plethora of issues arising at the conference, three themes consistently emerged from the conference: in the plenaries; in the research papers; and in discussions over dinner (including in the after-dinner speech given by Owen Jones, author of Chavs: The demonization of the working classes).
The first was that justice in the penal context cannot be achieved without first addressing issues of social justice. Delegates were reminded of the correlation between levels of social inequality and higher prison rates; of the continued over-representation of young black men in the criminal justice system, including in stop and search figures; and of the troublesome construction/enforcement of crime which sees so-called ‘benefit cheats’ prosecuted whilst bankers and others whose fraudulent and illegal actions contributed to the financial crises largely go uncensored – legally, if not morally. Such cases, familiar to criminologists, provide the ‘headline’ examples of the need to secure a more equitable society so that the justice system does not perpetuate the disadvantages of the least powerful in society.
One especially disempowered and disadvantaged group is children who come into conflict with the law, and particularly those who end up in prison. Such children are a highly researched group in criminology – and rightly so – but less familiar, and more hidden, are those children whose lives are the ‘collateral damage’ of the criminal justice system. Shona Minson of Oxford University presented an excellent paper on her research that explores the invisibility of children when their mothers are sentenced to custody; something which affected 17,240 children in 2010. Minson spoke about the wide variations in judicial understanding of the implications of the ‘gendered pains of punishment’ and of the devastating impact that imprisonment has on families. For example, where an imprisoned mother lives in social housing and is sentenced to more than 13 weeks in custody, housing benefit ends immediately; potentially leading to family homelessness. Arguably, says Minson, judges need better educating about these and other impacts, and pre-sentence reports should be provided in the case of all mothers. The difficulty, of course, with regards to justice and social justice, is that taking account of a woman’s status as mother in sentencing risks discriminating against women who do not have children and further perpetuates the ‘ideal’ image of woman as mother (a point made at the conference by Dr Gilly Sharpe, who is also presenting a paper this semester as part of the NISR ‘Social Justice and Social Renewal’ series). Perhaps, as Minson suggested, we should be looking to ensure that proper support is in place for children whose primary carer is imprisoned as well as minimising imprisonment for all.
The particular vulnerability of children leads me on to a second theme emerging from the conference: the threat to justice and the rule of law as a result of the Coalition Government’s proposals to reform the processes of judicial review and legal aid (Helena Kennedy QC was particular forceful on this issue). Both reforms will restrict access to justice which, as pointed out in an excellent article by Stephen Sedley in the London Review of Books, will affect the most vulnerable in society, including – again – children. Laura Janes, Acting Legal Director for the Howard League, gave a paper on this issue and described how the children she works with view the law as something that is there to punish them, rather than to be used by them as a tool for protecting their rights. The penal system is overwhelming and confusing for many vulnerable children and young people, a factor that contributes to the difficulty minors face in participating effectively in the various criminal processes they might face; whether that is when being questioned by the police, being tried in court, making a complaint about their treatment in prison, or appearing at a parole hearing. For this reason it is particularly important that minors have access to a lawyer who is specially trained to work with children (and many who represent young people in conflict with the law are not). However, as Janes pointed out, the legal aid reforms mean that children in prison will no longer receive support to challenge their treatment and the conditions in prison – for example where they have been subject to excessive use of restraint, segregation, or unauthorised punishment – nor to compel local authorities to fulfil their statutory duties to children when they leave custody. Without legal aid, securing justice for these children is impossible.
The final theme that emerged is participation in the processes of justice. This was addressed in many of the plenaries – including by Will Hutton – and was also an important strand in some of the research presentations. Bethany Schmidt of Cambridge University, for example, gave an interesting paper on imprisonment and civility, and how the use of participatory governance within prisons (including the User Voice prison council initiative, a participatory governance civic reintegration model being used in three UK prisons) can strengthen civic culture amongst those in prison.
Other papers that I could not attend addressed many of these – and other – themes. For the delegates at the Howard League conference then, the answer to What is Justice is that, at the very least, it requires social justice, fairness in access to justice, and participation in the processes of justice.
 The Howard League has also brought, or intervened in, some key judicial review cases in recent years. These include the 2002 landmark decision in R (Howard League) v Secretary of State for the Home Department , which extended to children in custody the duties owed by local authorities to other, non-detained, ‘children in need’; and earlier this year, the HC decision which challenged successfully the legality of the exclusion of 17 year olds from the protections afforded to all other children when detained and questioned by the police.