On The Outside Looking In: Reflections on the Role of Inspection in Driving Up Quality in the Criminal Justice System
| Published date | 01 May 2013 |
| Date | 01 May 2013 |
| DOI | http://doi.org/10.1111/1468-2230.12022 |
| Author | Stephen Shute |
On The Outside Looking In: Reflections on the Role
of Inspection in Driving Up Quality in the Criminal
Justice System
Stephen Shute*
This article examines the role of external inspection in enhancing the quality of a criminal justice
system. It seeks to answer six foundational questions: how should we understand the nature and
purposes of criminal justice inspection? what methodologies ought it to employ? who should do
it? what values should it respect? how much does it cost? and does it ‘work’? The article reveals
that the difference between inspection and other forms of scrutiny activity is largely a matter of
emphasis; that the same is true of the difference between inspection and research; that ‘lay’
involvement in inspection can be beneficial; that independence is a core value for inspection,
albeit one that is best understood as independence of judgement; that transparency is a further key
value but not always honoured; and that evidence that inspection improves service delivery and
hence justifies its costs is weak and further research is needed.
INTRODUCTION
All criminal justice systems are forged through the furnace of the political process
and, in a vibrant modern democracy, an informed dialogue with citizens. They
are the product of both their past and their present and shaped by events. But if
they are to thrive the right building blocks must be in place. The system must
have a meaningful vision which is then supported by appropriate policies,
procedures, processes, systems, and structures. There is no single template for
success. Different approaches will be right for different criminal justice systems at
different times and different stages of their development. Yet, if left unchecked,
even the most successful of systems is likely to degrade. The ways in which this
can occur are limitless. A criminal justice system may lose touch with its
fundamental rationale; it may become cumbersome or ineffective; its supporting
structures may fail; its internal processes may decay; those working in the system
may lose the capacity or the will to deliver what is needed; and the system may
cease to work holistically: it may stop operating as a system with one part
negating or undermining what other parts are seeking to achieve. In the context
of criminal justice, these failings can have serious consequences: fundamental
human rights may be violated, justice may miscarry, and the safety of citizens
*Professor of Criminal Law and Criminal Justice, University of Sussex; Head of the School of Law,
Politics and Sociology. The author has been a non-executive member of the Management Board of
HM Crown Prosecution Service Inspectorate since 2008. Between 2007 and 2011 he was also a
member, with Professor Rod Morgan and Dr Silvia Casale, of the Ministerial Advisory Board on Joint
Inspection in the Criminal Justice System. The views expressed in this article are purely personal. I am
grateful, with the usual caveats, to Professor Colin Scott, the two anonymous MLR referees, and the
following former or current Chief Inspectors/Inspectors for their helpful comments on a first draft of
this article: David Abbott, Eddie Bloomfield, Andrew Bridges, Michael Fuller, Andrew Laing, Pro-
fessor Morgan, Michael Maguire, Peter Todd, and Stephen Wooler.
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© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited. (2013) 76(3) MLR 494–528
Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
may be threatened. To root out such possibilities, well-ordered systems of
criminal justice need to engage in a never-ending push for quality and improve-
ment. Much of the responsibility for achieving that lies with those who manage
the system. It is their job to ensure that things run smoothly and to reflect
constantly on how they might be made better. But, while this is a necessary
condition for success, it may not be sufficient. Internal managers may become
too blinkered and too entrenched in the system to be able to identify what is
required and the quest for quality and improvement can run into the ground.
As a counterweight to such tendencies, many criminal justice systems seek
to bring an external perspective to bear. One response is to appoint external
members to key management bodies to act in a non-executive capacity. In
England and Wales, for example, the Ministry of Justice’s Departmental Board,
which has overall responsibility for setting the strategic direction of the Depart-
ment, has four non-executive members, and the Home Office Supervisory
Board has five. This form of outside input is designed to sharpen top level
thinking and to offer an element of critical challenge that insiders alone can find
hard to deliver. The idea is to strengthen the internal team with the introduction
of people from the outside who, at least to some degree, become insiders too.
Another response is to establish independent external scrutiny bodies to provide
structured mechanisms for reflection, investigation, check, challenge, and
comparison. The goal here is to supplement the internal control systems
of an organisation -whether locally or nationally structured -and hence drive
improvement and enhance quality but to do so by keeping the critical challenge
at arm’s length. Broadly speaking, these external scrutiny bodies fall into five
categories: external oversight entities such as parliamentary committees;
regulatory bodies with enforcement powers; auditors; investigative bodies; and
inspectorates.1This article focuses on the last of these five categories -
independent inspection.
To inspect is to examine closely or to inquire carefully.2In the context of a
public or quasi-public body such as a criminal justice agency, it involves doing
that officially. Over the years, many countries have established official criminal
justice inspection regimes of different kinds. Outside the United Kingdom,
criminal justice inspectorates are to be found in places such as Ireland,3France,4
the Netherlands,5New Zealand,6South Africa,7and Western Australia.8Within
the United Kingdom, bespoke criminal justice inspection regimes operate in
1 For a general discussion of monitoring and regulatory bodies with external scrutiny functions, see
C. Hood, C. Scott, O. James, G. Jones, and T. Travers, Regulation Inside Government: Waste-
Watchers, Quality Police and Sleaze-Busters (Oxford: OUP, 1999).
2Chambers 20th Century Dictionary (Edinburgh: Chambers, New Edition, 1983).
3 Office of the Inspector of Prisons: Prisons Act 2007, Part 5.
4 L’Inspection Générale des Services Judiciaires; L’Inspection Générale de la Police Nationale; and
L’inspection Générale des Services Administratifs et L’Administration Pénitentiaire.
5 Inspectorate for Public Order and Safety at http://www.ioov.nl/english/ (last visited 23 August
2012).
6 Prison Inspectorate: an independent unit operating within the Department of Corrections.
7 Judicial Inspectorate for Correctional Services: Correctional Services Act 1998, s 85 (as amended).
8 Office of the Inspector of Custodial Services: Prisons Act 1981, s 109A (introduced by the Prisons
Amendment Act 1999).
Stephen Shute
© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited. 495
(2013) 76(3) MLR 494–528
each of the constituent jurisdictions, scrutinising prisons, policing, probation,
prosecution, and the administration of courts. In 2010, England and Wales had
five bespoke criminal justice inspectorates: HM Inspectorate of Prisons; HM
Inspectorate of Constabulary; HM Inspectorate of Probation; HM Crown Pros-
ecution Service Inspectorate; and HM Inspectorate of Court Administration
(which ceased to operate in December 20109). Scotland had three bespoke
criminal justice inspectorates in 2010: HM Inspectorate of Prisons for Scotland;
HM Inspectorate of Constabulary for Scotland; and HM Inspectorate of
Prosecution in Scotland. A fourth Scottish agency, Social Care and Social Work
Improvement Scotland, was given responsibility for inspecting social care and
social work provision, including social service provision within the criminal
justice system in Scotland, in 2011. Northern Ireland has a single, unified
criminal justice inspectorate which was established in 2003 following the
Good Friday Agreement.10 There are also two transnational criminal justice
inspectorates currently operating in the United Kingdom: the Council of
Europe’s Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment11 and the inspection arm of the United Nations
Committee Against Torture.12
In this article we shall explore the role of external inspection as an engine for
driving up quality in a criminal justice system. The main sections will seek to
answer a number of foundational questions: how should we understand the
nature and purposes of criminal justice inspection? what methodologies ought it
to employ? who should do it? what values should it respect? how much does it
cost? and is it effective? The concluding section draws together these threads
and offers some brief reflections on the future. The term ‘quality’ in this article
should be read broadly. It embraces all that a criminal justice system ought to do
to deliver what we expect of it. Some failings may, of course, be egregious: any
criminal justice system which tolerates inhuman or degrading treatment, for
example, clearly turns its back on quality. Other failings may appear more trivial
yet have a demonstrable negative impact on people’s lives. All matter.
THE NATURE AND PURPOSES OF CRIMINAL
JUSTICE INSPECTION
In general terms, inspection focuses on five aspects of an agency’s work: its
conformity to standards (whether deriving from human rights norms or other
9 The Inspectorate of Court Administration was formally abolished by para 2(1) of The Public
Bodies (Abolition of HM Inspectorate of Court Administration and the Public Guardian Board)
Order 2012, SI 2012/2401, 17 September 2012.
10 Inspectorates in the United Kingdom also operate in many other settings, including health and
social care (the Care Quality Commission), education (Ofsted), and border control (the Inde-
pendent Inspectorate of the UK Border Agency).
11 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment, signed by the United Kingdom in November 1987 and ratified in June 1988.
12 Optional Protocol to the United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (OPCAT), UN Doc A/RES/57/199
December 2002, entered into force in June 2006 following the 20th ratification at http://
www2.ohchr.org/english/bodies/cat/ (last visited 23 August 2012).
The Role of Inspection in the Criminal Justice System
© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited.
496 (2013) 76(3) MLR 494–528
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