The cowardice behind the failure of night courts

Mr Blair must stop trying to find high-profile, simple solutions to deep-seated, difficult problems

The Government's £5.4m experiment in bringing New York-style night courts to Britain has ended in failure. And dreadful failure at that. It has proved to be no less that 40 times more expensive to process a defendant through the night courts than through the normal magistrates' courts. Drunks and beggars receiving cautions are the most commonly heard miscreants.

If all this was not embarrassing enough for the Government, there is the added discomfort that this misconceived undertaking went ahead in the teeth of almost every expert's advice. What a lot of people can feel justified in lining up today and saying, "I told you so"?

Solicitors, magistrates and probation officers spoke out against the scheme. Lawyers from the US cautioned against embarking on such a project. The Prison Service was so antagonistic that it would not co-operate in the London and Manchester pilot schemes. The Home Office expressed reservations from early on, and wanted the money to be put into a quite different scheme, one that would concentrate on tackling persistent offenders. And opposition parties, of course, decried the whole thing as a "gimmick".

The Liberal Democrat MP Simon Hughes has most reason of all to congratulate himself as Cassandra of the week. "The Home Office is aware of the potential problems," he announced at the time that the pilot was introduced. "But Downing Street is determined to get the measure it wants regardless of the advice. There is a danger this will be another short-lived New Labour initiative which grabs attention but is never implemented."

How right he was. Yet, ever since night courts were suggested by the police chief Sir John Stevens, Downing Street has been enthusiastic. The notion appeared in Labour's 10-year crime plan, in its most recent manifesto, and in a major speech Mr Blair made days before the last election. So why did the Government love so much a concept that almost everyone else simply hated?

There are some glib and easy answers to this question, as well as some complex and difficult ones. Both sets of answers have some validity. Among the first set are: the fact that Mr Blair has boundless faith in all things American; the fact that Mr Blair always prefers initiatives that can be set up easily and are highly visible so that he can be seen to be Doing Something; and the fact that Mr Blair finds it easier to confirm the prejudices of his voters than to challenge them.

On the first point, the boundless faith is misplaced – not because the US method is necessarily wrong, but simply because it's not right for us. The US criminal justice system is so different from Britain's that bits of the American way cannot be glued on to our different way and expected to fuse seamlessly.

In this case, the practical differences were huge. US courts have holding cells nearby, while ours do not, so there was nowhere in the system dedicated to holding prisoners before or after sentencing. This was an insurmountable problem that ought to have braked the project at its first stages.

Instead, it merely hobbled it. The Prison Service would not take people receiving custodial sentences late at night, arguing that this would compromise prison security. Further, the police as well as private security companies have been dogged by failure to get defendants to the courts from the police cells anyway. The very first London hearing, supposed to start at 6pm, was held up because it was geared to start in the middle of the rush hour.

The US night-courts system, and their whole criminal justice system, is reliant on plea bargaining and aims to trade guilty verdicts for lighter sentences, while ours does not. Many of the cases that have appeared before the night courts have ended in adjournment, and it was always hard to see how this could be avoided. After all, most pleas of guilty here give rise to the need for a pre-sentencing report, while all pleas of not guilty necessitate the mounting of a defence. What room is there for instant justice there?

Further, night courts started working in New York when there was a spiralling crime problem. Here the numbers coming before magistrates have not significantly altered in years. The criminal justice system needs to respond to its many difficulties, many of which involve delay and constant adjournment. But since overwhelming demand for magistrates' sittings isn't what is causing the delays, behaving as though it is clearly isn't going to solve anything.

This latter point, of course, ties in with Mr Blair's propensity to be seen to be Doing Something. The night courts idea was the closest that could sensibly be got to Mr Blair's own dream – of grabbing yobs by the ear and frog-marching them to the cashpoint himself.

In fact, having a district judge or stipendiary magistrate, clerk, CPS staff, duty solicitor, usher, two security guards and probation officers all sitting round, on overtime and with taxi-fares home promised, on the off chance that some yobs will be caught in the act near by, is not much less ridiculous than kitting Mr Blair out in a Batman suit.

And, of course, the image of Tony Blair in a Batman suit, doggedly fighting a sea of crime, is very much one that confirms the electorate's prejudices rather than challenges them. The appeal of night courts to the Labour Government was not just that they came from the real-life Gotham City, but also that they looked, like Batman himself, like they were being "tough on crime".

Now, a small historical point can be made here. The New York night courts came into their own, and saved a highly pressurised system, during the Eighties crack-and-crime epidemic. But they were first started because a legal challenge was made against the practice of locking people up overnight, or over weekends, without a legal hearing. It was agreed this was a violation of their human rights, so night courts were begun in the interest of defendants, not as a weapon against crime.

It is an irony that the Government leapt into a scheme born of the cautions of just the sort of nitpicking, politically correct, human rights lawyers that they now try to distance themselves from. But that does not alter the fact that night courts looked good because they implied that justice was being taken to the streets, with yobs whisked straight from the scene of the crime into the firm grasp of justice.

In truth though, this simply plays to the popular myth, that criminals get an easy ride, when they should be being punished swiftly and decisively. The people the night courts actually dealt with were not like that. They were beggars, drug addicts, drunks, people with mental health difficulties, the socially excluded, the abused – just the sort of people who fill our burgeoning prisons this minute, who need help and compassion rather than retribution for sins they cannot hope to control by themselves.

And this, of course, is the great failure of the contemporary political dialogue in Britain. New Labour knows in its cowardly heart that this is the real problem, and quietly, unobtrusively, this problem is being addressed. But it is being addressed too quietly, too unobtrusively – for fear of upsetting the nation's lynch-mob mentality – for it to have anything like the impact that it should.

The failure of the night-courts pilot is a failure that this Government could learn from. The leap into this flashy, but stillborn, venture illustrates many of the flaws which stop this Government from being the force for good that it should be. It must stop trying to copy little bits of the successes of others, stop trying to find high-profile, simple solutions to deep-seated, difficult problems, and it must stop playing to the baying gallery.

If the Government can rehabilitate itself this much, then it will be ready to face the task of winning Britain over to the idea that rehabilitation is the only really effective weapon in the fight against crime.

d.orr@independent.co.uk