Rhys Burriss: Conservative criminal justice policy should really be heading towards California's enormously successful "three strikes" law

Rhys Burriss is a Barrister and a former Clerk to Justices, a former Senior Magistrate of Montserrat and has most recently been Senior Legal Advisor in the International Criminal Tribunal for Rwanda. He is a student of International Law at Oxford and an aspirant Applicant for Admission to the Approved List of Conservative Candidates. Here he responds to Professor Ian Loader's recent Platform on penal policy.

Any article by an Oxford Professor has to be taken seriously and any arguments expounded therein addressed. Unfortunately Professor Loader's article is composed more of a series of well-meaning assertions than arguments deriving from real world experience. This piece is intended as a necessary corrective, with positive suggestions for Penal Reform which would really make a difference for the better.

The many (largely state-funded) organizations who have so devastated criminal justice policy in this country over the last thirty years do not live in the real world of recognizing how lenient sentencing policy actually is in England and Wales, and how much responsibility such leniency has (together with other factors such as the duty-free benefit and public housing system) for our appallingly high levels of crime, particularly violent crime - which I believe are possibly the highest in Europe per capita - when last I saw an international comparison.

If you wish to discover who actually served on the high-minded and official-sounding 'Commission on English Prisons Today' just check out its website. The lead 'Commissioner' (it was set up by the Howard League for Penal Reform by the way) is none other than Cherie, and with one single exception all the other 'Commissioners' are the usual suspects of pro-criminal lobbying - Howard Leaguers, Professors of Criminology, Guardianistas, Parole Board members and so on. An objective, open-minded, research-based analysis it cannot remotely claim to be.

The pro-leniency lobby, for example, refer constantly to how much better it would be if those serving short sentences were instead made to perform community service and so on. This is where, with the greatest respect, their ignorance of how things really are, is showing.

Viz - of course in actual fact community service and other - many, many other - non-custodial penalties are tried by Magistrates and Judges before they eventually (far too late to affect behaviour) start using prison. The community penalties, fines and all the rest of it work (in the sense of stopping re-offending) for unfortunately very few people who are minded to prey on others.

It is quite normal for offenders to rack up a hundred or more convictions before they are given even a short experience of prison. To declaim that the present penal system - over the past 15 years - has become 'punishment obsessed' is just totally false. This is not a matter of opinion. It is a matter of scientifically provable fact - as false as saying that two plus two equals five.

The proof is available to anyone with an open mind who wishes to research the real world evidence - just sit in your local Magistrates' Court and watch the revolving door of regular local criminals getting 'Community Rehabilitation Orders', 'Community Punishment Orders',  'Conditional Cautions', 'Conditional Discharges' , 'Curfew Orders' suspended sentences, fines, and maybe start the whole rigmarole again before getting anywhere near a prison sentence.

The idea that 'penal moderation' would be a new approach, rather than in fact being the existing one is, I am afraid, totally false.

I will confess that I used to believe all this Guardian-readers'/criminology professorshi- theorizing before I started work as a Magistrates' Clerk in London in the 1980s (After all, the propaganda in favour of it is relentless, overwhelming, and rarely countered in the bien-pensant intellectual journals or think-tanks).

But believe me, work for a few months in a Magistrates' Court and you would see the records defendants have, and what they have been able to impose on innocent fellow citizens: another tactic of the penal reform lobby is to whitewash what actual criminality really inflicts in terms of suffering on the victims - in hugely influential Probation Reports (Magistrates only rarely stray from the recommendations in such Reports) the accused never actually did anything himself - 'the offending behaviour occurred' (a bit like the weather) - without suffering any ill-consequence to themselves whatsoever (another secret - many if not most 'community punishments' are simply not performed; most fines, except those imposed on motorists, are simply not paid).

The last time the approach being urged by Professor Loader was enacted by a Conservative Government was in the early 1990s, when the Criminal Justice Act of 1991 required Magistrates and Judges to ignore previous convictions and sentence all defendants as if they were first time offenders. Sounds impossible to believe? But yes, it happened. Not a single Tory MP pointed out the Act's absurdities and likely consequences (Labour opposed the measure but only because in the words of Roy Hattersley - yes, it is there in Hansard - ' the measures do not go far enough in emptying the prisons '). In fact that Act did a great deal to empty the prisons and the crime rate rose commensurately.

It took Michael Howard - much reviled at the time - as Home Secretary to get a grip on the Home Office civil servants and their Guardian-inspired 'philosophies' and reintroduce some – very moderate and very belated - common sense to proceedings. And surprise surprise, with a tougher approach crime did start to reduce.

The fact is, prison - used to render career criminals unable to inflict their selfish, often violent, behaviour on others - really does work, by containing such career criminals in a secure place where they can do no harm in society. If educational opportunities can be provided within the prisons (and the juvenile versions thereof) that is all to the good, but sight should not be lost that the main purpose is not only deterrence (useful as that objective most certainly is) but also simple containment of persons who by their choice of behaviour have demonstrated that their mission in life, if free to do so, is to inflict suffering and misery on innocent people.

This approach has been recognized and followed in most of the United States (so much more truly democratic than is the UK) over the past 15 or so years and crime rates there have dropped in some cases to the levels of the 1960s. It has been particularly effective in California – long known in general terms for its liberal societal approach.

Yes I know, gun crime is worse than in the UK, but that is attributable to the peculiar history of the US and its expansion West in the nineteenth century. Levels of burglary, car theft, unprovoked assaults, and so on are far far lower there.

We also could go back to 1960s levels of crime - we just need to return to the sentencing policies of that period (which now would require an effectual, enacted, version of 'three strikes') combined with abolishing the CPS (a 'clog on the equity' of the criminal justice system if ever there was one – but whose abolition, in addition to improving the smooth running of the criminal justice system, would also save several billion pounds at a stroke) and releasing the police and courts from all the bureaucracy and 'MMGL' – Meaningless-Management-Garbage-Language which both parties have inflicted on them over the last twenty five years.

Oh yes, and repealing the Human Rights Act (which the Judges have used, inter alia, to defeat the will of Parliament and drive a freight train through Michael Howard's ' two-strikes' reforms).

For further, more detailed reading on criminal justice issues by professionals who have actually worked within the system (as opposed to devising academic theories about it)  devour all and any of the articles on the excellent, but too little known website of the Criminal Justice Association.

The articles by the late Peter Coade (a former Senior Probation Officer in fact, albeit regarded as a renegade by his colleagues) are particularly apposite and very closely argued. Interestingly, the many challenges he continually proffered to the pro-criminal, state funded, criminal justice lobby to actually reply to the carefully detailed points and statistics which he set out were never, and have never, been taken up. The Magistrates' Association always refused to publish his articles, even balanced by opposing - pro leniency - points of view.

For a superb general purposes website ( with many links) on how California's 'three strikes' provisions have been a huge success in reducing criminality in that state check out this site. The serious sentencing policies which the United States has reverted to over the last fifteen years are very far from being  'right wing' or Republican-owned.

Justice Sandra Day O' Connor is the leading Liberal on the Bench of the United States Supreme Court.
Read her leading Opinion (of that Court) supporting the constitutionality of California's 'Three Strikes' law and the people's entitlement to vote for “a shift in the State’s sentencing policies toward incapacitating and deterring repeat offenders who threaten the public safety".

Make no mistake, for an incoming Conservative Government to sleepwalk into espousing a return to the grotesque leniency of the Criminal Justice Act of 1991 would be the same societal disaster it was then.

And when the general public get to hear about it would be the one thing which would provide substance to the inevitable Labour claim that the Tory Leadership is Eton-privileged, insulated from reality and totally out of touch with the life ordinary people live.