There are all sorts of types of decision-making in democracy and one is called ‘deliberative democracy’. It’s called that because it puts deliberation rather than counting votes at its heart. In deliberative democracy it’s the process rather than the outcome that counts. And the process is designed to reflect the belief that the best decisions are ones arrived at by discussion between free and equal people. Anything else is just a variation on coercion.
Here are some of the basic rules for good deliberation:
- Participants should treat each other with mutual respect and equal concern
- They should listen to one another
- They should speak truthfully
- There should be no use of force, strategising or deceit, and no sign of partisanship, self-interest or ideology
By the same token, decisions reached by strategising and deceit, and characterised by poor listening and a lack of respect and concern, will be bad ones.
Deliberative democracy might be accused of being massively impractical, or at the very least difficult to put into practice. But this doesn’t undermine its attractiveness as a regulative ideal, or something we should strive to approximate to when it comes to good decision-making. We might reasonably expect every institution charged with making good decisions to get as close to these ideals as possible.
But there’s one arena of decision-making - one which has the profoundest consequences for roughly 1.5 million UK citizens every year - where the principles of decision-making are the exact opposite of the ones above.
That arena is the English criminal justice system.
From arrest to sentence, the criminal justice system is defined by self-interest, strategising, deceit, lack of respect, dissembling, and a systematic failure to listen.
Self-interest is on display by everyone throughout. Take the police force, for instance. Its job is to secure convictions (definitely not justice), and police officers would be crazy to do anything that undermined that objective (what would we think of a police force that never secured convictions?). Police strategising is common (if they can interview without a lawyer present they’ll do so), as is deceit (evidence that might be useful to the defence is regularly withheld).
None of this means that police officers are behaving inappropriately. Far from it. They’re doing no more than what a non-deliberative approach to justice enjoins them to do: maximising the advantages they have to ensure they get as many convictions as possible.
Likewise, strategising is not only present in the courtroom, it is essential to how it works. Prosecution and defence plan and plot their way through to their desired outcome with little regard for what should actually count - truth and justice (understood as getting what one deserves).
This month, after one of the UK's biggest ever miscarriages of justice, 39 Post Office workers had their convictions for theft, fraud and false accounting quashed. It was revealed that one of the innocent accused was advised by his barrister to plead guilty to avoid a longer prison sentence. In fact this is standard practice in UK criminal justice (you get a third off your sentence if you plead guilty to whatever you've been charged with) - a practice which outside that system it is known as bribery. The maximum custodial sentence for bribery that can be imposed by the very court system that regularly uses it is ten years.
Finally, the consensual approach that characterises deliberative decision-making is completely absent in the criminal justice system, where the confrontational alternative is personified in the battles between prosecution and defence so beloved by TV dramas. And all of this in a mise-en-scène designed to emphasise inequality and hierarchy, and induce intimidation - the courtroom itself (raised platform for the judge, bowing and scraping, wigs and gowns).
The ‘Secret Barrister’, famed for supposedly lifting the lid on the failures of the criminal justice system, gets nowhere near the heart of the problem. Her or his claim that it’s all about a funding shortfall is a distraction from the real issue. Throwing more money at an abominable system would just make it better at being bad.
All in all, if someone was invited to come up with a process designed to produce unreliable, even obtuse, decisions, they’d be hard-pressed to come up with anything better than the English criminal justice system. We need to start again from the first principles of free and equal deliberation if we’re to have a criminal justice system worthy of the name.