Chris Daw KC interview

Torrin Wilkins: First of all, welcome to the conversation, Chris Daw. You have done a huge number of things. You are on the BBC TV series, Crime: Are We Tough Enough? You wrote an excellent book, Justice on Trial: Radical Solutions for a System at Breaking Point. I have listened to all of it. Welcome to the conversation.

Chris Daw: Thank you very much.  I’m impressed that you managed to listen to me for seven hours.

Torrin Wilkins: It was very interesting, I would say. Normally, I am really bad at listening to or reading books, but it got me through an entire book, so I am glad. 

Chris Daw: Your book is somewhere in the post because you will get a real one, but sadly, you will never need to read it.

Torrin Wilkins: Exactly, well, it can sit there on the bookshelf. So, the first question I wanted to ask you comes from one of the pieces I was listening to just before we came on. You talk about HMP Whitemoor, and I wonder what the biggest difference people tend to see between Norwegian prisons and those in the UK is? Is it just the atmosphere of prisons or how they look? You talk in the book about how in the UK, they don’t even allow a blade of grass or anything like that in the prisons; there are birds getting trapped. What would you say the biggest differences are between those two styles of prisons?

Chris Daw: I think the most important difference between the Norwegian model and the British model is that the Norwegian model is rightly focused on making the prison environment as close to the outside world as possible. This means having people live in ordinary housing units, make their own food, and potentially have family come to stay occasionally. Norwegian prisons have levels of normality that mirror the normal experience of everyday life, meaning when prisoners are released, it is not a particularly extreme transition, and they are not challenged in the same way that prisoners are in Britain.

British prisoners face challenges because of reasons on the opposite end of the spectrum I have described; we make our prisons as extraordinarily abnormal as possible.  We maintain living conditions similar to those of Victorian prisons of the kind that have been in movies for decades and decades, a completely alien environment that most people have only ever witnessed on television. 

So that is, for me, the main difference, the othering of those in the criminal justice system in Britain. Prisoners experience a different form of life and do not belong as part of our world and society. The Norwegian model views prisoners as people just like us, only that they have made mistakes. With the right inputs and support systems, however, they can come back to being part of society and continue with their lives. There is a positive mentality to this – it does not view people in the ‘good’ or ‘bad’ binary. Rather, it is the antithesis of the Norwegian approach to view a bad person as someone who may as well stay in prison forever. 

Torrin Wilkins: One aspect I find interesting is that in Norway, they are used to this mentality.  Within the last decade, they removed the 21-year maximum sentence. But, I remember listening to interviews with Norwegian prison guards where they would say, “I have to look after this person because eventually they will leave prison and they may be my neighbour.” In the UK, we have gone for a completely different approach, choosing to adopt longer prison sentences. What do you think is the impact on the UK of having these huge, long sentences, and the impact for Norway in adopting much shorter sentences even for very serious crimes?

Chris Daw: Well, I think the main difference is that in Britain, our sentencing process is not focused on the overall picture. So, for most people, I suspect, if you drill down to it, what do you want from your criminal justice system? What you want it to do is reduce crime and reduce costs. Let’s say you want fewer people to be the victims of crime in the future, and you want the whole thing to cost as little as it needs to cost. Now, prisons achieve the exact opposite because what they do at great cost is increase the overall number of crimes because they act as breeding grounds for criminal behaviour, criminal association, and alienate people from ordinary law-abiding lives. After all, the world they enter in prison is so alien and different. The mindset around the alienation of those who commit crimes and the need to keep them separate is what, in the end, drives crime because you alienate a very significant and escalating number of people. 

The more people you put in prison, the more you alienate, the more crime you get. When you look across the Atlantic at the US model, there are almost two and a half million people in prison, as opposed to our near 80,000 to 85,000 at the moment in Britain. Two and a half million people are in prison in a society, which is supposed to be a free country, which is supposed to be a safe and good place to live, and they’ve locked up two and a half million people. That is almost one in a hundred at any one time. We are nowhere near that in Britain. But the point I am trying to make is that where the Norwegian model is to imprison as few people as possible, the US model is to imprison as many people for as long as possible. We are on a trajectory going towards the US rather than going towards the Norwegian model. The big difference between Norway and the US is that there are massively higher levels of crime in the US than in Norway. So, if we follow the US, I fear that we end up, I am afraid, somewhere on that spectrum towards mass incarceration on a scale that is almost unimaginable.

Torrin Wilkins: I think the one thing we all support is reducing reoffending rates and preventing people from going into crime, or at least, ensuring that if they do commit a low-level offence, they stay out of crime after leaving prison. So, in terms of education within prisons, we can agree that ensuring people can get into work after their sentence is of key importance. What would you say are the main lessons for improving the prison system so that people do not end up stuck in that vicious cycle of continuously reoffending, leaving, not finding work and then ending up back in prison again?

Chris Daw: Well, I think the illustration I gave earlier of the Norwegian approach of normalising the prison environment would be a good start.  I suppose you could look at it like an airlock: if you have a pressure difference between the prison environment and the outside world so large that emerging from one to the other is just an enormous shock to the system, that is exactly what, in the end, hits people when they finish their sentence.

You can see it is quite bright and sunny here where I am today; when prisoners leave prison, they are blinking into the sunlight from a life of grey darkness in very dingy prison environments with almost no time outdoors. Suddenly, they are out in the world, and it is like they have been in the deepest, darkest ocean, and they have popped up onto a Caribbean beach. And what do you do? They have no tools to deal with the environment they are in. 

The Norwegian system is the diametric opposite in that from the minute you go into prison, the entire focus is on preparing you for a seamless transition from custody to everyday life. That means when you leave prison, you will have a job already. You have probably already been working in that job for six months to a year on a day release or weekends, or whatever it might be. This system prioritises gradually easing somebody back into society where they may have had two nights away from prison, staying in their family home. Let us see how that works out, and yeah, it is working well, so we are gonna call it three nights, four nights, and before too long, you just taper off the custodial controls, and you ease into a pattern of life, which is pretty much the same as it was the day before. 

In the British system, you could be in a Category B prison, in a secure prison environment or even a Category A prison in some cases.  Upon completion of your sentence, you are released from the most extraordinary levels of day-to-day, minute-by-minute control into a situation where you are expected to go out and fend completely for yourself with no transitional plan, with no continuity, nothing. It does not take a genius to work out that making things as different as you can in prison is going to make it more difficult for people to come out and act in a lawful and normal way.  That is exactly how you end up, I am afraid, in the precise vicious cycle that you described.

Torrin Wilkins: So, one of the biggest challenges of getting to a Norwegian-style justice system is convincing the public. I think Crime: Are We Tough Enough? was a very interesting example. It is easy to show people examples of where it works and how it works. 

But yet, do you think we are as a society moving towards harder forms of punishment, like bringing back the death penalty? Or should we go towards the Nordic model of rehabilitation? Given that we are on that trajectory towards a US-style justice system, which is aimed at locking up as many people as possible and fails to reduce crime from happening, how do we start to shift the public towards the view that we should try something different? How do we shift public opinion to move away from punishment to lower crime rates?

Chris Daw: Well, I think the only thing that shifts public opinion is a shift of perception. At the moment, the public perception of the criminal justice system in Britain is that it is too soft, sentencing is lenient and that people are getting away with murder on a day-to-day basis through the ineptitude of soft judges. That belief is extraordinarily prevalent in public consciousness. Because it is prevalent, there is a certain category of media out there – populist radio and television programmes – where it essentially recycles that same basic sentiment over and over again, attracting more viewers, and then spreading that toxic message more widely. And so it perpetuates.  I think the only answer to that real phenomenon, which is almost unavoidable in some sense, is to just try to tell people the truth. As I do, if I go onto GB News or any of the other outlets which are predominantly completely misguided and ignorant in the way that they cover justice issues, I simply say, “You are wrong.”

When I became a barrister in the mid-1990s, almost 30 years ago, we had about 40,000 people in prison. Now we have almost 90,000 in prison. When I started in practice, the average length of time you spent in prison for a serious crime, such as rape, murder or a serious assault, was half what it is now. So, for murder on average, you would serve 12 years in the mid-90s. Now it is almost 25 years. It is almost double the amount of time that we spend in prison for the same thing. 

The argument that the reason we have all these terrible problems is that the system is soft just does not add up because the system is tougher in terms of sentencing, and the number of people being locked up is the largest it has ever been. So, all I say to people is: if you want people to go to prison for a very, very long time for their crimes, that is your prerogative. But do not pretend that it is because somehow everyone is getting less and less time in prison, and something needs to be put right. Because the truth is, the things you are arguing for, governments have accepted for the last 20 years. That is why we have double the prison population and double the length of sentences. My basic theory is you need to keep hammering home the truth.

Torrin Wilkins: Another thing that fascinated me in the book is the distinction between good and evil. Looking primarily at the Nordic system, there does not seem to be this distinction. In light of this, how do we get away from the mindset that if someone has done something wrong, they are somehow a completely evil person who can never be changed? Similarly, how do we move past the mindset that a quote “good person” is not capable of committing a crime?  

Chris Daw: Again, I think the answer is the same, which is that you just have to communicate reality. My reality of almost 30 years practising criminal law and dealing with people who have been accused of and have committed every crime you could imagine, murder to serious fraud, armed robbery, drug trafficking,  all of those people, who most would put on the evil side of the line, turned out to be completely innocent.

But for me, the real thinking point is, what about the people in the middle? What about the people who may not have done quite as bad a thing as I have just suggested, but they did do something in their favour, whilst also at the same time, they are capable of doing good things? 

I suppose once you understand that everybody is capable of both good and bad with mixed good and bad motives,  once you understand that everyone is an incredibly complex mix, then you are in a good place to say it does not help us very much to view society as a binary “us” and “them”.  We still have 10-year-old children being prosecuted for crimes in England. Even if they are 10, they are still quote “bad”. They may have done a terrible thing, but I think there is a rethinking to be done.

Torrin Wilkins:  Another area of your book that you focused on was drugs, and you gave a fantastic explanation about the history and how we lost our connection with what drugs were and what they were meant for. Would you be able to explain a bit about how we lost that connection, but also, where you think we should go in terms of drug legislation? 

Chris Daw: This is probably a subject I am the most passionate about for the simple reason that I think it is the most idiotic policy that we have had in the last century in terms of criminal justice policy. Further, it is so easy to reverse and therefore to make massive beneficial changes. But to summarise what I talk about in the book, there is a chapter called Why We Should Legalise All Drugs. The reason that I took this extreme approach was that when I went back and looked at the history of the use of psychotropic and other mood-altering substances by human beings, before we were even modern humans, I found the research to be very interesting because it suggests that psychotropic plants and psychotropic substances have co-evolved with human beings. This is a fascinating analysis when you think about it.  What this means is, and those of your listeners who know anything about Darwinism will understand, that the way that evolution works is usually by chance: because one individual happens to have one characteristic that is particularly advantageous at a particular moment, and then suddenly the whole gene pool shifts in favour of that individual because of that one advantage or that one fluke characteristic that they may have.

Well, what the science says is that drugs, psychotropic drugs in particular, have achieved much more quickly and more effectively the same impact of some of those shock-to-the-system, evolutionary advantageous moments, which have taken many generations to turn into meaningful change.  So what has happened is that at some point in our evolution, an individual has taken a particular psychotropic substance, which has a particular impact on their brain, which has meant they have imagined or decided there is a particularly clever way to do something, which they would not have thought of had they not had the psychotropic drug in the first place. So suddenly, you could have a “why do we not make a round thing that we put on a stick, and it is called a wheel” moment in the way that great artists and musicians over the last few centuries have found the most extraordinary inspiration from periods of intoxication. So our ancestors, it may appear, had also achieved great scientific and technological advances because of drugs, which ultimately have led us to where we are today. So, if you want to reverse all of that, what I am saying is that without drugs, we may still be walking on four legs.

Torrin Wilkins: I think it is an interesting answer. So do you think that we have been held back by this process of criminalising psychoactive substances during the “war on drugs”? Would you say that, in terms of the human cost and in terms of drug trafficking, how much do you think that it has held us back?

Chris Daw: It has not just held us back; it has killed hundreds of thousands of people in Britain alone. I mean, what people may not appreciate is that,  and I will give you probably the statistic that struck me the most as I was researching and writing the book, which was about the long-term problem of heroin users in Britain. In the late 1960s, we had about a thousand long-term problem heroin users, and they were not that problematic because they got their heroin from their doctor, who was allowed to prescribe it to someone who was addicted to heroin. Resultingly, they would get pharmaceutical-grade heroin from the doctor at relatively modest cost, and they could go about their day and live their lives in a very ordinary way. About a thousand, no crime-related, users of heroin, no serious illness related to heroin and almost no overdoses related to heroin at all. So that is the late 1960s – 1969, 1970, that was the position in the UK.

What then happens is that Richard Nixon, the President of the United States, decides to declare a war on drugs. Richard Nixon, we all know, of course, having turned out to have been a complete crook who had to resign from office, was, by this stage, looking at a second term as President of the United States. He decided that the way to get that second term was to go big on drugs, so he declared a war on drugs. He insisted that all of the US allies, and indeed almost everybody in the world, had to sign up to a convention to criminalise drugs like heroin, cocaine and cannabis, for that matter. As a result, the United States passed the most serious, draconian drug legislation in the early 1970s, and around the same time or a few months later, we passed the Misuse of Drugs Act in the United Kingdom fifty years ago.  That effectively meant that all of that small group of one thousand people who had been getting their heroin from their doctor, that all of that stopped. Heroin was a prohibited drug under the Convention and the Misuse of Drugs Act. If you go anywhere near it, you can be prosecuted, and you will go to jail. So what happened next is that the group of a thousand wanted their heroin. They were heroin addicts; they had been heroin addicts for years. They wanted their heroin. What did they do? They looked for drug suppliers, organised crime suppliers, and low-level dealers who could get them heroin. 

There was a huge demand just from those thousand people because a thousand heroin users use a lot of heroin in a week. After all, heroin is a highly addictive substance. So, all they did was reach out, and suddenly, there was a new market for dealers to enter. They had been selling cannabis mostly and cocaine, but now, suddenly, heroin was the drug that was the most lucrative. Within ten years of the Misuse of Drugs Act coming into force, by the early 1980s, we had gone from a thousand heroin users receiving safe pharmaceutical heroin from their doctor to three hundred thousand heroin addicts all buying their drugs from street dealers. All in just ten years because of one piece of legislation.

When you think about the scale of the criminality that lies behind three hundred thousand heroin addicts, the organised crime surrounding drug supply, and the amount of crime that has to be committed by those three hundred thousand people to raise £200 a day for their heroin habit on the black market, you cannot imagine a more stupid thing to do. 

And sadly, the impact is not just stupidity. It is not just money here and there. It is human life in massive numbers of heroin overdoses because of no access to safe pharmaceutical heroin. Loss of life because users were being beaten or killed while involved in drug dealing, and because of their heroin addiction. The state, through observance and adherence to the wishes of Richard Nixon in the early 1970s, has, I am afraid, become a mass murderer, and there is no end in sight.

Torrin Wilkins: In terms of where we go from there regarding drug policy – I mean, you almost hinted at before suggesting to get rid of the Misuse of Drugs Act – where would you like to go policy-wise? Would it be the full legalisation of all drugs? Or would it be something more similar to the Portuguese model, i.e. decriminalisation? Whereabouts on that scale would you go?

Chris Daw: You see, Torrin, I know that is a rhetorical question because you read the book, so you will know that my answer is very much on the side of complete licensing, regulation and legalisation. All three of those things are essential. For instance, there is no licensed or legal supply of drugs in Portugal. Drugs are, however, decriminalised. The problem with that model is that all of the supply chain remains in the hands of organised criminals, and they are violent,  dangerous, and they push the price of drugs as high as possible.

So there’s a model which has some marginal benefits to end users because they are not going to be prosecuted for having small quantities of drugs. But in terms of changing the overall dynamic, the Portuguese model does not achieve this at all. It is better than what we have, but it does not work overall. 

In the US, when they legalised cannabis in various states, California and Nevada, for instance, very large states with large markets for drugs,  they have effectively licensed and, to an extent, regulated. But what they have pretty much done is allow the entire supply chain to become a commercial private business, which, in turn, drives up prices. Producers are trying to supply as much as possible, because private businesses are running the show. 

So, there is no model at the moment that has a fully licensed, legalised and regulated supply chain. What I would have are dispensaries. They could be contracted out to the private sector, or they could be run directly by the state. Probably the former would make more sense given the catastrophic record of the state running things! But a nationwide series of dispensaries where you could obtain cocaine, ecstasy, cannabis, heroin or any kind of drugs that are currently prohibited. All in brand-neutral packaging, which just tells consumers what they are getting. For instance, “MDMA, this much, this many milligrams”. Provided you were over the age of 18, you could go there and, within reason, you could get pretty much anything you wanted. 

That would be the model for me, and that would get rid of all of the current problems caused by prohibition. It has ultimately driven organised crime around the supply of drugs – unsafe drugs – because there is no one checking what is in each tablet or what is in each vial of heroin. It has increased the risk of overdoses, and just the sheer amount of collateral crime that has to be committed to pay for drugs at street prices.

People may or may not know that cocaine in Colombia can be bought pure for about a thousand US dollars a kilo. By the time it is cut and entered the streets of Britain, it is sold for one hundred thousand dollars per kilo.  This is a hundred times more for the dealers and everybody else who has a cut in it. The government, because of the quantity they would be buying, could probably buy a kilo of pure cocaine for five hundred US dollars, and that could be supplied in dispensaries at a dosage cost of almost zero. So, as opposed to users on the streets paying £100 or £200 a day for heroin or cocaine, they would not need to do this, and they would not need to go and steal a thousand pounds’ worth of goods a week to feed their addiction. They do not need to go and rob kids of their mobile phones and all the other crazy stuff,  break into houses and steal a Sky TV box or something else. I mean, these are the sorts of crimes that are committed by people who are trying to find a thousand to twelve or fourteen hundred pounds a week. None of that in my system.

Torrin Wilkins: Well, thank you so much for coming to the conversation. It has been brilliant to have you on, and you have provided some great answers. I have to say, overall, I cannot recommend Justice on Trial: Radical Solutions for a System at Breaking Point enough. It is a brilliant book. So, thank you!

Chris Daw: Thanks, Torrin. Thanks for having me on to talk about this stuff.

Note: This interview has been edited for grammar, clarity, and flow. The original recording is the final and definitive version.