OPINION: Does the time fit the crime?

It’s high time we replaced Guernsey’s out-dated sentencing guidelines for drug offences with a more compassionate 21st century solution, argues Alex Garner

WHEN discussing the ‘paradox’ between his manifesto (which stated that ‘higher taxation… can only drive us towards long-term decline’) and Policy & Resources’ tax review policy letter (advocating the need for tax rises) in a recent radio interview, Deputy Mark Heylar touched on a question which every lawyer or law student will have answered at one time or another: how can you defend someone you think is guilty?

Normally, a reference to the riveting world of legal professional conduct rules is enough to bore the questioner into moving on. However, if their attention remains, the answer is often the same: it is imperative to be able to trust the system is capable of accurately distinguishing the guilty from the innocent. If the seemingly guilty are not afforded a proper defence, then we cannot be sure the wrongfully charged among that number won’t suffer miscarriages of justice.

According to the 2020 Justice Review Report, trust in Guernsey’s criminal justice system is generally in short supply. Only 53% of respondents to the consultation were confident that the system was effective in bringing people who commit crime to justice.

Combating this apparent lack of faith will be key in determining the success of the Committee for Home Affairs’ review of the island’s justice system, work on which it is purportedly ‘ramping up’. In undertaking this review, the committee will be required to get to grips with determining the purpose of the criminal justice system. In no area will this be more important than the much talked about sentencing policy review.

It is accepted political wisdom that no politician ever lost an election by banging the law and order drum too loudly. Being ‘tough on crime and tough on the causes of crime’ was a touchstone of Tony Blair’s UK general election win in 1997, forming the first Labour government since One Flew Over The Cuckoo’s Nest won best Picture at the Oscars. This bears out to anyone who has spent any time reading the comments on certain Guernsey Facebook pages where deportation or summary execution are oft-suggested punishments for offences such as shoddy parking. Similarly, I can guarantee at least one comment beneath the online version of this column stating that ‘if you can’t do the time, don’t do the crime’. To many, Nurse Ratched is a shining example of how all offenders should be dealt with.

Viewed through this lens, it is noteworthy to see and hear the growing dissatisfaction with the perceived harshness of the sentencing for drug offences on the island. Several high profile drug importation cases in the last 12 months have brought the Richards guidelines, set down by the Court of Appeal in 2002 and binding on the Royal Court, into wider public focus and highlighted this area as being ripe for political overhaul.

This issue appears to be one which has the support of those inside the States as well as those outside. Of the candidates who were elected deputies in 2020 and who answered the written question on cannabis legalisation, only two supported the current punitive approach and the vast majority supported at least some form of de-criminalisation.

Of course, supporting the de-criminalisation of cannabis possession is not necessarily a gateway stance into advocating for absolute narcotic legalisation. However, introducing legislative action to modernise the options available to law enforcement as well as Guernsey’s judiciary in relation to drug use on the island appears to be the rarest of beasts – it is simultaneously good politics, financially responsible and the morally just thing to do. Politicians should not hide behind guidelines set out by five unelected members of the bench almost two decades ago. The world has moved on since 2002 and Guernsey should not be left behind as other jurisdictions find 21st century solutions. What’s more, it is hypocritical to allow Guernsey business to cultivate cannabis for profit while locking up individuals for possession.

Governments around the world are realising that there is more to be gained than the easy headlines garnered by chasing the stats which come with locking up more and more of their citizens. Numerous studies have shown that custodial sentences are actually more likely to result in offenders escalating the severity of their offences after release, rather than being a deterrent against future offending.

If the aim of our criminal justice system is to ensure that the least amount of crime as possible happens in our society, then the most up-to-date research suggests that our policies in this area must switch from being punishment-focused to instead being proactive in addressing the reasons offending occurs and, as far as possible, preventing this.

To hope that crime can be reduced by throwing the book at offenders is to close the stable door after the horse has bolted. That the justice review recognises the modern day thinking on crime reduction across the board is to be hoped for but drug sentencing is particularly in need of a more compassionate and proportionate sentencing framework.

Similarly, custodial sentences should be reserved for those who represent a continued danger to the community if they remain free, most often being violent offenders. There are a myriad of other and more productive ways any debt to society can be repaid. Community service orders have the dual benefit of being more cost-efficient to the taxpayer than imprisonment while allowing vulnerable offenders to be funnelled into support systems without the negative effects (and stigma) of prison. People should not be given up on quite so easily.

With Guernsey’s well-documented financial issues, even a dispassionate view supports reducing the number of prisoners as an obvious savings strategy.

Take the high-profile case of Pip Orchard as an example: focusing solely on his drug importation offences, the Guernsey taxpayer is going to spend £125,000 incarcerating someone who has dedicated his life to helping others for the importation of £500 of drugs for personal use in an ill-advised attempt to cope with a mental health issue. This is not a sensible use of the public purse. Who can, in good conscience, honestly argue that locking up one non-violent offender, who is repentant and has taken full and sole responsibility for his actions, is a better use of our limited resources than employing two mental health nurses who could combat problems before any wrongdoing occurs?

The Court of Appeal was at pains to point out that the Richards Guidelines were not seeking to establish ‘some sort of inflexible code’ for the Royal Court. However, this States must remove the risk of the judiciary being ‘straitjacketed’ by outdated thinking and introduce new sentencing guidelines across the board (but particularly for drugs offences).

How we treat those who trespass against us is the truest test of who we really are as a society.

Our laws should show our children and the rest of the world that in Guernsey there is room for compassion and sufficient leeway to give second chances to those who have already done real good work in their lives and not just those who have influential people in their call history.

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