Justice inside and out

Terry Waite is not quite the household name he once was. Twenty years to the month since his release from nearly five years’ captivity in Beirut as the hostage of Islamist kidnappers, most of it in solitary confinement without the outside world even knowing whether he was alive, there will be many now adult who do not even recall the longrunning media coverage surrounding the fate of Waite and his fellow captives John McCarthy and Brian Keenan.

At the age of 72, however, his commitment to humanitarian issues (it was an attempt to secure the release of other hostages that led to his own incarceration) remains undiminished. Thus, it was no surprise to find him in Scotland last month to deliver the annual lecture for Sacro, the charity helping offenders to reintegrate into the community, taking the title “Compassion and Justice”. And despite a tight schedule ahead of the lecture, he found time to expand on his views to the Journal.

Waite pursues a host of good causes, by no means all of them offender-related. Even within that field, he remains a founder trustee of the Butler Trust, whose awards recognise exemplary practice by people working in prisons; works with staff in several prisons as well as the Rampton secure hospital; is a patron of the Dartmoor-originated Storybook project, through which prisoners record a story, which is then animated, in order to preserve the bond with their children; and is president of the Emmaus group of charities which support the homeless, including ex-prisoners, providing a community environment to help them make a fresh start (there is one in Glasgow). Nor does he overlook those who have suffered at the hands of offenders: he sits on the advisory board of Victim Support.

Breaking the cycle

How, then, does he regard the way we as a society deal with criminals? Acknowledging the twin purposes of prison as punishment and rehabilitation, he continues: “But I am concerned at the exceptionally high number of people in prison, 70% or even higher, who suffer from some form of mental disability, either related to alcohol or substance abuse of one kind or another, or who have psychosis or various forms of personality disorder.” (His lecture flags up the number of women who self-harm, often an effect of being sexually abused at a young age, or who attempt suicide.) Further, with more people in prison, and the trend towards bigger prisons – though “thank God we didn’t go into building the Titan prisons in England” – in the result “it is extremely difficult to engage in rehabilitative projects, and manifestly these prisons are not working. Because we are getting this very high return of people back into prison.”

Hence it is no surprise that he favoured Kenneth Clarke’s proposals, now apparently defunct, for England & Wales, that greater emphasis be put on community service orders, or “restorative justice”, in place of short prison sentences.

I query whether such disposals are suitable if mental disorder is the issue.

“I think in certain instances, if it’s specially tailored and specially designed. We have a number of people in the Emmaus community who are suffering from various forms of personality or mental disability, and some who will never be able to live in an apartment by themselves, but they can be supported in a community such as Emmaus. And the great thing is they are able to work according to their capacity. Some will go back into normal life, some will stay for an extended period, maybe see their life out in that community, that doesn’t matter.

“I think we need a whole range of innovative projects,” he adds, “and it is encouraging that police forces such as Thames Valley in England have been pioneers in restorative justice and many other forces have taken it up, recognising what I would recognise first of all, that if we’re going into restorative justice we’ve got to be serious about it. It isn’t and should not be seen as a soft option.” That, he accepts, requires “rigorous supervision”, something not always achieved in the past – his lecture emphasises the role for the probation service, in which morale has been “seriously undermined by Government attitudes”.

Soft touch?

Perhaps the bigger question, already the subject of recent Holyrood legislation, is how far we tilt the balance in favour of community disposals in preference to custody. Here Waite’s views are clear. “For most people, a sentence of 12 months or less is useless for rehabilitation.”

Kenneth Clarke quickly discovered the difficulty of promoting any policy of restricting short sentences, and the Scottish Government faced enough opposition in enacting a presumption even against sentences of up to three months (cut down from the proposed six).

The point has since been well illustrated in the Holyrood Justice Committee hearings on the Scottish Government’s spending plans for the next three years. A similar proposal to Waite’s was put forward in evidence by the chief executive of the Scottish Prison Service, John Ewing, who said that community sentences “could deal more effectively with a number of the offenders whom we currently lock up”. In answer to Labour’s Graeme Pearson, who worried about the effect on communities, he said: “We are not arguing that you should do nothing with people with chaotic lifestyles that cause them to offend in their community – far from it. What we are suggesting is that there are better alternatives for dealing with some of these individuals.”

Brigadier Hugh Munro, Chief Inspector of Prisons, told the same hearing that a forthcoming report into Barlinnie will show 70% of inmates are not getting access to purposeful activity. “We have to look at better ways of dealing with offenders and ensuring they are dealt with in a much more constructive way before the issue gets out of hand”, Munro stated. His message was that prisons are simply too crowded for effective rehabilitation work to take place there, even for those who definitely need to be in custody.

Yet “soft touch justice” still remains the typical newspaper response to such ideas. Even the Scotsman chose to head its report “Thugs and burglars could go free under prison chief’s plan”. Politicians often take their cue. “The suggestion... is absurd and should not be considered any further”, Conservative spokesman John Lamont was quoted as commenting.

Call for commitment

It has to be said that resistance does not come solely from tabloid-driven public opinion. “I don’t entirely agree with you,” said a Scottish Women’s Aid representative, in questions following Waite’s lecture. “Some persistent offenders are not in prison – you just about need to hospitalise or kill the woman to get custody.” Waite returned in reply to his point that “if the prison system is just providing a circular process, it isn’t serving its purpose”. Both he and the speaker were agreed, however, that the challenge is to get people to understand how their actions affect others.

With (UK) Government suffering in Waite’s eyes from a lack of collaboration between departments, and politicians not wanting to move unless they think the public will support them, “voluntary agency work is vital”.

Certainly, in the present financial climate, if much more is to be achieved it cannot be left solely to Government. “I make a call to young people,” said Waite, “to creative men and women to commit to active reform of the penal system. That doesn’t mean going soft on crime. It does mean that we take the time and trouble to understand those who break the law, and make every effort to restore them to society.”

When a police commander asked whether there was anything in his father’s role as a village policeman that could be applied today, Waite suggested, first, that one task of the voluntary sector was to try and recreate our lost sense of community, not ignoring the influence of the internet; and secondly, that “my father had a face-to-face confrontation with the offender, and in a different way that is what we are trying to do with community service etc, and the restitutional process. We need more emphasis on that”.

Caught in the tide

Back in our interview, I picked up on something Waite wrote following the summer riots, that some of those involved had “no moral compass whatever”. If that is so, where do you start in attempting to prevent them reoffending?

In reply he qualified his views somewhat, suggesting that the age profile of the participants was actually somewhat higher than the predominantly teenage element he had then had in mind (though figures since published still indicate that around half were aged 20 or younger). “I think it does show a certain lack of moral fibre if you like, that you can be caught up in a crowd and swept along and just seize whatever is available… Even opportunism does show that there is a certain lack of moral responsibility, definitely, and that seems to be more and more in the materialistic society, that places large emphasis on what I can get and what I have.”

Is restorative justice the answer in such cases?

“There is no one complete and full answer, but I think it is a more constructive way of approaching the problem than simply detaining people for a period of time… We have to look a little more carefully at individuals and individual needs, and what is appropriate for individuals.” Which brings us back to the problem of scale, compounded by the fact that rehabilitation work is especially vulnerable to prison budget cuts, because governors cannot afford to compromise on security. Such work is also inhibited, his lecture suggests, by official guidelines discouraging any initiatives that might attract adverse attention from the press.

Feelings and healing

My final question to Waite before our allotted time runs out is whether as a result of his own experience he can relate to what prisoners undergo.

“The public perception of prison life is inadequate,” he replies, “and it’s largely fed by the tabloid press, who will reinforce negative stereotypes, and politicians of course are guided by public opinion. To say that prison is a soft option, well, anybody who thinks that, (a) has probably never set foot in a prison, and (b) certainly has never experienced incarceration and loss of freedom. To actually do time in prison, never to have any silence, always to be amongst noise, to have a limited space in which you are going to be locked up longer and longer in future, that is punishment, there is no doubt about it.”

Megrahi decision "was correct one"

Terry Waite did not want to ignore the Lockerbie case on his visit to Scotland. “I don’t have the knowledge or expertise to comment in depth,” he said, “and the case is deeply mired in political controversy. In my opinion there is much we don’t know and may never know. But I retain an unease at the strength of the evidence against Megrahi.” He has added his name to the petition calling for a full inquiry into the case.

On Megrahi’s compassionate release, he added: “In my personal view it was the right and humane decision to release a man who had been given a limited time to live. It doesn’t matter that he has actually lived longer. I do understand the desire of some victims to see him die in prison. But a society that has compassion at the heart of its institutional life doesn’t mean in any way that it is soft on crime. It is often harder for a public official to take a compassionate decision than not to do so.”

"I pay tribute to Sacro’s work"

Sacro’s mission, as stated on its website www.sacro.org.uk, is “to promote safe and cohesive communities by reducing conflict and offending”. It provides support for offenders, and also adult restorative justice and youth justice services, throughcare services and community mediation; and carries out research and consultation in seeking to influence Government policy and legislation. Its Honorary President is the former Lord President and Lord Justice General, Lord Cullen of Whitekirk.

“I pay tribute to the work of Sacro, on a meagre budget,” Terry Waite said in his lecture. “Its work demonstrably proves the effectiveness of the methods it is following.”

Living death

Life on Death Row USA, by someone who came out alive, was the subject of a recent event hosted by the Society

Justice debates in the UK pale somewhat beside accounts of those sentenced to death in the USA, Peter Nicholson writes. Last month the Law Society of Scotland hosted an event with the charity Amicus, which works to support the occupants of Death Row.

Main man of the evening was Lane Nelson, once a condemned man in Louisiana before a successful appeal saw his sentence commuted. Others, he told us, have been there far longer without knowing their fate. It was 1986 when Nelson was sentenced; there are at least five men in that one state who were on Death Row when he arrived and are still there now.

Not that those who designed the accommodation expected it to be occupied long term. Your cell is nine feet by six, including your bed, toilet and basin. You are locked up in it 23 hours a day. Three times a week you get to spend the one remaining hour out of doors. People go mad there, Nelson said.

Of particular concern also is the lack of proper representation. As 90% of Death Row inmates cannot afford their own attorney, the court-appointed lawyer is all that stands between the accused facing a capital charge and the ultimate sanction.

Yet such lawyers are not required to have any experience of capital, or even criminal cases. Amicus quotes one Supreme Court justice: “I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented.”

Nelson’s case was one that called for some experience.

As a young hitchhiker trying to cross the state and having been offered a lift late one night, he admits to having ended up killing his driver with the driver’s own knife.

There were strange circumstances concerning the driver, and Nelson was a drug and alcohol abuser at the time. He was given two court-appointed attorneys; he saw only one of them once before his trial and was assured everything would be OK.

They failed to lead competently the psychiatric evidence that was expected to favour Nelson, and he was convicted, the lead prosecutor pushing for the death penalty as a “star” for her record.

Another attorney appointed to his appeal filed a one-page statement.

He was removed and yet another argued the case, without having met Nelson in advance.

Finally he found a lawyer who had no criminal experience but who was willing to spend some time on his case, and who knew someone with experience who could help him.

They succeeded in having the sentence commuted to life without parole; years later he was to apply successfully for a pardon which enabled him to be released early this year, 30 years after his initial arrest.

“Would you be here today if you were black?”, someone asked. “No”, answered Nelson, adding that it was a complex question: he wouldn’t have had the same education, or the same attorneys, apart from likely prejudices on the part of those in the justice system.

Amicus, founded in 1992, is one of the organisations working to provide representation for those facing the death penalty. It trains defence firm interns, provides support from the UK via casework teams, and holds awareness-raising events.