The failure to fully devolve criminal justice to Wales has led to a chaotic situation where vulnerable people are at a disadvantage and decisions are taken without proper scrutiny, according to a book published today by two leading academics.
Professor Richard Wyn Jones and Dr Robert Jones of Cardiff University say bad outcomes will continue until the UK Government agrees to reform the current “jagged” arrangement where it shares responsibility for spending on justice and policing with the Welsh Government.
In their book The Welsh Criminal Justice System: On the Jagged Edge, the two academics point out that, contrary to a frequently made assumption, much of the cost of the wider criminal justice system is borne by the Welsh Government.
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The book states: “[The] legislation that underpins the current Welsh devolution dispensation makes clear that criminal justice functions are reserved to Westminster and Whitehall.
“Not only metaphorically speaking, the ‘keep out’ signs proliferate; and where Welsh devolved incursion is unavoidable, it is permitted only along clearly demarcated (and closely monitored) footpaths. Nonetheless, the criminal justice system in Wales is distinct.
“This reflects the fact that those institutions responsible for criminal justice simply cannot operate in isolation from broader frameworks and institutions of social policy, which in Wales are now almost all devolved.
“In other words, the wider criminal justice system in Wales includes not only the prison, police, youth justice and probation services as well as the judiciary and courts services (all non-devolved), but also encompasses mental health and drug rehabilitation services, housing, social services, and the education system.
“The latter are not only the responsibility of Wales’ devolved institutions but also, to an ever-increasing degree, operate differently from those found in England.
“This means that in post-devolution Wales, even absent a separate justice system, those charged with responsibility for conceiving and operationalising criminal justice policy are almost invariably operating across the line between devolved and reserved responsibilities.”
The outcomes are, say the academics, affected negatively by such confusion. The book contains two detailed case studies - one relating to the housing of released prisoners and the other to the running of police forces - which show how the current arrangements ensure that the best results can’t be achieved.
The UK Government’s decision to use short prison sentences as a deterrent is acting as a major obstacle to attempts in Wales to ensure that prison leavers do not end up homeless.
The book states: “The use of short-term sentences (often for relatively minor offences) means that existing tenancies are regularly lost only for prisoners to be released – homeless – shortly afterwards.
“Despite an indication in early 2019 that the Ministry of Justice was seeking to review the use of short-term sentences, no consequential changes have yet been introduced.
“Similarly, the dispersal of Welsh prisoners across the England and Wales prison estate also militates against the Welsh Government’s ability to successfully deliver on its housing policy.
“Even though the UK Government has introduced designated resettlement prisons to help move prisoners closer to home a minimum of three months prior to their release, in 2019, 3,857 prisoners across England and Wales were released from establishments not designated as resettlement prisons, the equivalent of 14 prison releases a day.
“Figures on the whereabouts of Welsh prisoners at the time of release are not publicly available – itself an indicator of the continuing absence of basic information – but we do know that at the end of 2019 Welsh prisoners were being held in 105 prisons across England, despite the fact that there are now more prison places in Wales than there are Welsh prisoners.
“An inevitable consequence of this situation is that Welsh housing service providers are still forced to deal with Welsh prisoners dotted around England’s (extensive) prison estate. All of which militates against the effectiveness of attempts to deliver ‘Through the Gate’ support to ensure that prison leavers do not find themselves homeless upon release.”
The funding of the police - partly by the UK Government, partly by the precept added to council tax payments and partly met by the Welsh Government - also leads to a lack of high quality accountability.
The book states: “The key issue … is the multiple ways in which policing is umbilically linked to other public services. Much of the discretionary funding available for police services is tied to schemes that seek to improve these links.
“The potential benefits of these schemes for all parties are obvious. [On] mental health, given that the police are often the first responders to those suffering mental health crises, ensuring smooth cooperation between police and mental health services is clearly eminently sensible. “It is an example that can be multiplied many times over across different policy spaces, including education, housing, and support and treatment for substance misusers.
“Indeed, so valued are such links that they are regularly funded, at least in part, from the budgets of those other relevant departments or agencies rather than from the budgets of the police services themselves or even the Home Office.
“But of course … even though they are part of a single England and Wales police service, Wales’ four police forces find themselves lodged in a very different public service environment than that surrounding their English counterparts.
“Most public services in Wales, including the other emergency services, are devolved. Which means in turn that Wales’ police forces also find themselves in a very different context as far as discretionary funding opportunities are concerned.
“Sometimes, the same arrangements apply in both England and Wales – although establishing whether or not this is the case is often not straightforward not least because, even two decades and more after the establishment of democratic devolution, many Whitehall departments remain notoriously unclear about the geographical extent of their various announcements and initiatives.
“Often, however, they do not. The question then arises for Wales’ police forces is whether there is an equivalent devolved scheme – and associated pot of funding – to any given English scheme?
“In addition, there are schemes supported by some part or other of the Welsh Government that seek to support other types of linkage between policing and public services through the use of discretionary spending.
“The complexities are all too readily apparent. As is the potential for conflict and blame-shifting.”
The solution, argues the authors, is to have a wholesale devolution of criminal justice to Wales.
They conclude: “Our earnest hope is that [this book] will inspire current and especially future colleagues to believe that there is something here worth engaging with.
“Not only because it is intellectually stimulating to consider the operation of a criminal justice system across a jagged edge of divided competences and responsibilities – though that is undoubtedly the case.
“Even more significantly, we hope to encourage their engagement because this is a system so obviously in need of fundamental transformation.
“When those reforms are finally introduced, better data and better understanding will help to ensure that they are successful, and that the multiple failings and failures that have been the subject of this book will in time also come to be regarded as features of a less enlightened and less civilised Wales.”
* The Welsh Criminal Justice System: On The Jagged Edge by Robert Jones and Richard Wyn Jones is published by the University of Wales Press at £24.99
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