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The Economic and Social Review, Vol. 43, No. 2, Summer, 2012, pp. 303–323
POLICY PAPER
Improving Criminal Justice Data and Policy
MARY ROGAN*
Dublin Institute of Technology
Abstract: Criminal justice policy in Ireland is often criticised for lacking a robust evidence base.
Increased knowledge about crime and criminal justice may act to enrich all types of criminological
enquiry and policy formation. This paper explores the potential of large population registries,
similar to those created in the health sector, to inform criminal justice policymaking. The paper
looks at the importance of such data collection for criminal justice research and policy and the
potential hurdles to its development.
I INTRODUCTION
In the absence of strong datasets and well trained analysts, it is
perhaps not surprising that evidence-based policy-making has not
always been the norm in Ireland.
(National Statistics Board, 2003, p. 30).
o be effective, economical and responsive to need, criminal justice policy
needs to be based on robust and easily accessible evidence. This paper
makes the case for the development of criminal justice population registries,
akin to those which already exist in the public health arena, to give us a
greater insight into the causes of offending, the distribution of crime, the way
in which punishment is used, and the evaluation of governmental action in
this area. These registries would collect anonymised data on the contact
individuals have with the criminal justice system and link that information to
T
* My thanks to anonymous reviewer for the helpful comments, any omissions or errors remain my
own.
email: mary.rogan@dit.ie
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other administrative databases in health, education, social protection, and
elsewhere, in order to provide a comprehensive examination of crime and the
effect of criminal justice policy, but also to provide another slant on the health
of our population.
This paper describes the data gaps in Ireland, particularly in the area of
linked data and discusses the effects of these absences. Some suggestions to
remedy these gaps are then made, with the issues of data protection and legal
restraints on data collection and sharing explored. The need for a unique
identifier across criminal justice data is also examined in the context of the
creation of a criminal justice population registry. The paper concludes with
recommendations for the development of better data collection and sharing
systems in the area of crime and justice.
1.1 What is the Role of Criminological Research and Evidence?
The question of improving data to improve criminal justice policy is not
one without controversy within the criminological academy. There is a
perennial debate within criminology as to what criminological research should
be as well as what it should be for (for an overview of these debates see Loader
and Sparks, 2011), with those engaged in self-consciously “evidence-based” or
“experimental” criminology (Farrington and Welsh, 2007) and those who take
a critical approach to notions of crime and responses to it, arguing that much
research acts merely to cement the view that crime is only that which occurs
at “street-level” (Carr, 2010), at particular odds.
If researchers had a clearer picture of economic and other indicators we
would be able to feed both projects more effectively. The greater accessibility
of data would lead to more equality between researchers. Access to data on
criminal justice populations would no longer be so dependent on funding or
indeed on the background and connectedness of researchers as very large
datasets would be developed as a matter of course.
As well as fundamental debates about the role of criminological expertise,
there is also the question of how any data is used in the formation of policy. To
argue that better data leads inexorably to evidence-based policy is to do so
naively and without an understanding of how policymaking works. As Loader
and Sparks aver, the way in which evidence is used is not straightforward and
policy-makers make decisions for many reasons (Loader and Sparks, 2011).
Scholars have lamented the lack of engagement by policymakers with
criminological expertise and the phenomenon of symbolic rather than
evidence-based policymaking, arguing that criminal justice policy is often
based on political convenience rather than substance (Jones and Newburn,
2007; Stolz, 2002; Tonry, 2004). Stevens’s ethnographic account of the use of
evidence in policymaking (Stevens, 2011) shows that evidence is often used as
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a tool to create persuasive stories to promote policies which conform to
prevailing policy trends and which assist civil servants to form important
connections within their career.
O’Donnell notes that the Irish State’s “… in-house capacity for research is
almost non-existent” (O’Donnell, 2011, p. 498), but that this may, in fact, have
acted as a bulwark against the imposition of some of the more punitive
elements of crime policy witnessed in jurisdictions where the research
infrastructure is more developed, such as the United Kingdom and the United
States of America. In O’Donnell’s view, the stunted nature of criminology in
Ireland may have acted to insulate the State from the excesses in criminal
justice felt elsewhere.
Improving data may do little to shift political imperatives or how evidence
(or its lack) is used in the service of other goals. However, it is also the case
that the absence of data in Ireland has also acted to frustrate attempts to
contest the policies which have been made. Improved data can facilitate those
willing to take issue with those policies more effectively and convincingly.
Taking full account of the concerns about the use of data, it is nonetheless
considered that the creation of better data about criminal justice is
worthwhile. However, the mechanics of creation give rise to a number of
dilemmas.
II CRIMINAL JUSTICE DATA COLLECTION IN IRELAND
Ireland does not have a good track record when it comes to the collection
and publication of data relating to the criminal justice and, in particular, the
prison system. As O’Donnell notes “… prior to 1995, the annual reports on
prisons and places of detention … were reasonably detailed, but often
published so far in arrears that their value was severely curtailed” (O’Donnell,
2008, p. 121). Remarkably, during the years 1995 to 2000 no annual prison
reports were published and when these were produced as a compendium, the
figures given related only to the total number of committals. This is all the
more worrying given that this period was one which witnessed fundamentally
important decisions about prison policy. Kilcommins reports that a Cabinet
Minister at the time described a proposed increase in prison spaces as having
been come up with “on the back of an envelope” (Kilcommins, 2004, p. 238).
Poor quality data and unsatisfactory prison population projections are also
implicated in previous government plans to build a 2,200 space prison at
Thornton Hall in North County Dublin, which would be the largest prison in
Ireland by a multiple of at least three (the most recent official figures show a
prison population of 4,400 in 2010 (Irish Prison Service, 2011)). In 2005, prison
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population projections were created by the Irish Prison Service, although it
appears they only became publicly available in 2009, and the methodology
used for these projections is not considered to be robust (Brangan, 2009).
Within the annual reports on prisons and places of detention published
each year by the Irish Prison Service, the categories of sentence length and
offence type are few. No information on the demographic profile of prisoners
other than general details of age, gender, nationality and place of residence
prior to imprisonment. In the case of nationality, the categories included are
“Irish”, “UK” and “African” with no further nuance or detail. There is a
breakdown by county where the information provided is the address given by
those committed to prison.
The consequences for researchers in Irish criminal justice are serious and
already documented (Bacik, 2002; Hamilton, 2005; O’Donnell, 2004, 2008;
O’Mahony, 1996). The effects of an absence of a unit within the Department of
Justice or an extensive research community within the state are difficult to
test, but it seems persuasive to suggest that ignorance about the effect of
policies, the formation of policy on “gut instinct”, or conviction, or on nothing
particularly substantial at all, have contributed to the difficulty in discerning
or indeed creating a set of principles to guide Irish criminal justice policy (see,
for example, Kilcommins, 2004; O’Donnell, 2011; Rogan, 2011).
As far back as 1985, the Whitaker Committee reported that there should
be a body to publish accurate prison statistics (Committee of Inquiry into the
Penal System, 1985) and in 1993 the Law Reform Commission’s report on
sentencing recommended that sentencing statistics should be made available
to judges and which could be used by legislators when deciding on sentencing
policy (Law Reform Commission, 1996). Recently, the Irish Sentencing
Information System, a pilot project undertaken by the Courts Service of
Ireland, has made a database of hundreds of District and Circuit Court cases
and sentences publicly available through its website, www.irishsentencing.ie.
This database contains information on the sentence received for those cases
captured by the database and some basic information on the person sentenced,
but the information is not always recorded consistently, not all information is
present and the information is not presented in a way that makes it easy for
the sentencing researcher to work on. There is no information given on
whether the sample sizes for particular offences can allow for meaningful
statistical analyses.
The Courts Service also produces an annual report on the throughput of
the courts each year, using a Courts Case Tracking System. In the area of
criminal justice, this report gives information on the type of offences and
sentences received during the year (available at www.courts.ie). No data on
the background of those sentenced are provided. Instead, the volume of
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appeals, the outcome of appeals, the numbers of cases received and disposed
of are reported. Information is also given on the type and length of sentence
imposed as well as guilty and not guilty pleas.
Crime Statistics are collected and published by the Central Statistics
Office (CSO, available at www.cso.ie) having been produced for several years
by the Garda Síochána. This quarterly publication is the most robust and
comprehensive of all the sources in Ireland, but its categories do not always
follow legal definitions of offences and there is no way to link the data
produced with that of any other source because of differences in definition of
offences and the general inability to link data across the criminal justice
system. The Probation Service also produces some statistical information, but
again its publicly accessible information is not possible to link to those of other
criminal justice agencies (www.probation.ie).
In 2002 the Government of Ireland established an Expert Group on Crime
Statistics to examine and make recommendations on the collation and
presentation of information relating to reported crime. This group was
established because of limitations identified in the collection of crime statistics
including poor timeliness, a lack of geographic breakdown of the published
data, a lack of consistency in published data, poor methodological notes and
unsatisfactory arrangements for publication (Statistics, 2004). Eventually,
and despite the fact that the Expert Group did not recommend this approach,
the Central Statistics Office took over the function of the collection and
publication of crime data. The majority of the expert group had recommended
the establishment of a Central Crime Statistics Unit within the Department
of Justice, but this has never been acted upon. The minority stated its belief
that the case for such a unit had not been made and was premature when the
critical question of data quality had still not been addressed. The Central
Statistics Office now contains a section which deals with crime statistics. In
2005 the then Minister for Justice indicated it would also be taking over the
publication of prison statistics, but this has not happened (Dáil Debates, April
20, 2005).
When it comes to understanding who our prisoners are and the
backgrounds they come from, for example, our knowledge is garnered from a
small number of one-off studies. These studies have provided us with essential
and rich data on where prisoners come from, go home to and the type of lives
they have had prior to imprisonment. We know that the Irish prison
population is characterised by poor educational achievements, socio-economic
disadvantage (O’Mahony, 1997), homelessness (Seymour, 2005), high incidences of mental illness (Smith, O’Neill, Tobin, Walshe and Dooley, 1996),
especially amongst women (Carmody and McEvoy, 1996) and physical disease,
especially blood-borne viruses (Smyth, Barry, and Keenan, 2005). These
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studies have shed much light on the hidden environment of the prison and
have given us very valuable data on the nature of those we sentence to
imprisonment.
While this is so, and the findings of these studies should not be
underestimated, there are systemic barriers to conducting such research. In
every case, those carrying out research on the prison population had to seek
out specific datasets and examine sectors of the overall population, or in the
case of the released prisoners in a study by O’Donnell et al. (2009) obtain
access to a large dataset of prisoners held by the Irish Prison Service as part
of the Prisoner Record Information System (PRIS). These authors have also
given a unique insight into the socio-economic demographics of the
communities to which prisoners in Ireland return (O’Donnell et al., 2007). The
PRIS dataset is extensive, but it is not publicly available and requires the
consent of the Irish Prison Service to access it and use it. In the case of smaller
scale studies, the researchers involved had to seek access to particular
sections of the prison population or those released from prison. This is timeconsuming, expensive and labour intensive. It also means that each study
provides a “snap-shot” of a particular population or point in time, with no
ability to link the data to other studies nor have we had any longitudinal
studies which follow populations, tracking their outcomes over time.
The lack of adequate data is not, however, a problem unique to criminal
justice in Ireland. The Council of Europe’s Committee for the Prevention of
Torture in its most recent report on Ireland stated “… the lack of any
epidemiological information on the prison population hampers the ability to
evaluate prisoners’ real health needs as regards medical and nursing care”.
(CPT, 2011, p. 34).
The deficiencies in quantitative data are serious, but there is also a grave
lack of qualitative data on the Irish prison population. As O’Donnell puts it:
“[we know] little about [prisoners’] relationships with staff and each other,
their anxieties for the future, how they experience the pains of confinement,
and how discretion is exercised” (O’Donnell, 2008, p. 122). There is room for
the Irish research community to turn its attention more closely and frequently
to the criminal justice and prison systems, but with all the hurdles to getting
accurate information on criminal justice in Ireland, such a task will always be
onerous.
III LINKING DATA: POPULATION REGISTRIES
Rather than relying on one-off surveys of crime and punishment, it would
be far more efficient and productive for the data which state organisations
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already hold to be made more widely accessible for the purposes of research.
This would involve the creation of population registries which draw on a
variety of administrative data similar to those pioneered in the area of public
health. The accessibility of such data would also be likely to stimulate more
interest in such research.
3.1 Cross-matching and Linked Data
In order to be able to create a database or criminal justice population
registry, a number of hurdles must be overcome. The problem of a lack of
linked data applies across the Irish criminal justice system and beyond.
Currently Ireland has a number of disparate databases or population
registries which contain information about a wide variety of indicators. Birth
rates, family size and crime rates, for example, are all collected and disseminated by the Central Statistics Office. The Health Protection Surveillance
Centre utilises the Computerised Infectious Disease Reporting system to
manage the surveillance and control of infectious disease. The National
Cancer Registry collates incidence, mortality, treatment and survival data
relevant to all cancer.
While all these individual sources are useful in themselves, the difficulty
lies in linking these blocks of information in order to be able to begin to see
and establish patterns and links between all these indicators. This was
criticised by the Expert Group on Crime Statistics in 2004 (Statistics, 2004)
but little action has been seen since. As the majority of the expert group
reported, each criminal justice agency:
[P]roduces its own statistics but … at present there is no integration
or linkage of data between those statistics … For example, it is not
possible to track offenders through the criminal justice system or to
determine rates of re-offending generally by crime type or by type of
criminal justice sanction. Similarly, the proportion of offenders who
receive custodial sentences is currently unquantifiable, as is the
probability of custody for particular offence categories and whether
average sentence lengths have been rising or falling.
(Statistics, 2004, p. 46)
There is, however, recognition at an official level that there is the potential
for improved data collection and linkage in Ireland (NSB, 2003a). The most
recently available Strategy Statement of the Department of Justice for 20082010 refers briefly to another proposed “Data Strategy” which will set out the
information and statistical needs of the Department (Department of Justice,
2008, p. 43).
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When it is impossible to link data across the criminal justice sector, it is
hardly surprising that there is no provision to link criminal justice data to
administrative records from other government departments. The reasons for
this are manifold, and no doubt a lack of administrative or political will is at
issue as the lethargy in the creation of data strategy statements indicates.
However, there are much broader potential hurdles in any attempt to cross
match data be it in Ireland or elsewhere. Perhaps the most important of these
relates to data protection.
The importance of data protection cannot be overstated, but there are
ways to ensure the protection of individuals while ensuring that very valuable
information can be collected and used for policymaking and research purposes.
IV DATA PROTECTION
The creation of linked datasets between criminal justice agencies and
other state organisations which collect personal data raises a number of
thorny legal and ethical principles about the use and disclosure of data. In
Ireland, both domestic legislation through the Data Protection Acts 1988 and
2003 and under EU law through the Data Protection Directive 1995
(95/46/EC) (on which Irish law is now based) require protections to be put in
place regarding the use of personal data. The retention of data about
individuals must be justified to the Data Protection Commissioner, an office
established to protect the data of individuals in Ireland.
Under the Data Protection Acts 1988 and 2003, data or information
constituting data must be obtained and processed “fairly” (section 2(1)(a)).
This requires that individuals providing personal information must be made
fully aware of the identity of the persons collecting the data, the use to which
the information will be put and the persons or category of persons to whom the
information will be disclosed. Secondary or future uses not obvious to
individuals at the time of the collection should be brought to their attention
and the option to refuse to allow their information to be used in other ways
given to them.
More generally, section 2 of the Data Protection Acts only allows data to be
obtained for one or more specified, explicit and legitimate purposes and must
be adequate, relevant and not excessive. These restrictions are removed if the
data is being kept for statistical, research or scientific purposes. Most of the
data for such a registry would come under the category of “sensitive personal
data” defined under section 1 of the Act. Section 2 allows for sensitive data to
be processed in order to obtain information for statistical, compilation and
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analytical purposes in accordance with the Statistics Act 1993, although this
applies in the medical context.
The question of data retention is also at issue here. Under section 2(1)(c)
of the Acts, a data controller shall not retain personal data longer than is
necessary for the purpose or purposes for which it was obtained. However,
there is also an exemption under the legislation when the data is being kept
for statistical, research or other scientific purposes and no distress or damage
is or is likely to be caused to the subject, allowing for the build up of data over
a period of years. In this regard, the use of routinely collected data will in most
cases be less of a burden than participation in a series of one-off surveys in
which such data must otherwise be collected.
Existing data protection legislation would seem to prohibit the creation of
a criminal justice population registry of the kind envisaged by this paper. The
provisions of the Data Protection Acts are aimed, in the research context, at
individual studies rather than very large population based databases. As the
European Union’s Data Protection Working Party recognises, the EU Directive
on Data Protection and Privacy is not a legal basis for processing personal
data for public health monitoring, but rather processing for individual patient
care and additional law within Member States is required to justify the latter
(Data Protection Working Party, 2007).
If a database or registry is developed with a view to having populationwide coverage, an exemption from aspects of the Data Protection legislation
must be obtained. This has happened in Ireland already, again in the medical
context. The National Cancer Registry was established under the Health
(Provision of Information) Act 1997 and is exempt from the Data Protection
Acts. The Cancer Registry is publicly owned and collects information on
cancers, including information on the age, sex, social class and area of
residence of patients with cancer. The area of residence is coded to an electoral
division and addresses are not made public. The Personal Public Service
number is collected but not given to researchers.
While the Cancer Registry is a very useful source of information on the
incidence of cancer and some data on the backgrounds of patients, the Cancer
Registry does not itself link to other health databases nor to other potentially
useful sources such as information on education or involvement with the
criminal justice system. This absence has been recognised in the movement
towards a Health Information Bill in Ireland which seeks to create a
population registry on a much wider scale and across a large range of health
indicators.
4.1 Who Should Hold the Data?
The question arises as to the most effective repository for such a sensitive
database. A number of options arise. The Department of Justice and Equality
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could take control of the database or an entirely separate body could be
established, as was the case for the National Cancer Registry in Ireland,
which is run by a not-for-profit statutory agency. A distinction must be drawn
here between a body established to hold a population registry linking
administrative data from all government departments and agencies, which
would provide linked data to researchers, and one which would act to link data
across criminal justice agencies. The former requires a body which can process
administrative data across departments, the latter a body to work within the
criminal justice domain.
The majority of the Expert Group on Crime Statistics recommended that
a separate body under the auspices of the Department of Justice should be
established to hold and maintain all criminal justice statistical information.
There is much to recommend this approach, as a dedicated body with criminal
justice expertise would be a natural home for such data and would be likely to
find it easier to encourage criminal justice agencies to work together. The
demise of the National Crime Council has removed us of another potential
repository which would have such relationships and understanding already
established.
While any of these bodies have or had an expertise in criminal justice data
and would be able to deal with all its various agencies, the underdeveloped
statistical infrastructure in all of them means that we should not assume they
are the best choice for the development of a large population registry which
would link with all other government departments and agencies. A centralised
repository which could take data from all departments is necessary for this
particular task. The Central Statistics Office has a protocol on data protection
in place, which has been approved by the Data Protection Commissioner
(available at http://www.cso.ie/aboutus/data_protocol/data_protection.htm).
The CSO also has a clear policy on confidentiality and is governed by the
Statistics Act 1993.
The National Statistics Board envisages the Central Statistics Office
taking a central role in linking data across government departments (NSB,
2003b, p. 19). The CSO already has the responsibility for collecting data
from a variety of agencies including, for example, information on crime
statistics, migration, employment as well as the information obtained from the
Census.
The majority of the Expert Group on Crime Statistics was concerned that
the CSO was too remote from the agencies with which it would be dealing to
act as the appropriate body to deal with criminal justice data. Another concern
was that section 30 of the Statistics Act 1993 gives no legal basis for the CSO
to seek records pertaining to criminal justice. These concerns are valid when
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it comes to linking criminal justice data across the various agencies involved,
but can be alleviated.
There are many advantages to having a dedicated body within the
Department of Justice which is responsible for the development and use of
statistics in the criminal justice area. The understanding of what is required
for policy and the potential use of the data recorded is likely to be most
developed within the Department. The Central Statistics Office has a greater
capacity for linking between the various government departments and for
holding the data on an anonymised but linkable basis.
There are compelling arguments for improving the statistical infrastructure of the Department of Justice and Equality and also pragmatic
reasons to allow the Central Statistics Office to act as the hub linking the
various government departments. Ideally, the Department of Justice and
Equality should develop a specialised statistical unit, which could also
improve capacity in the various agencies such as the Probation Service and
Prison Service, which would use the centrally held information as required.
This body could then provide properly linked data to the Central Statistics
Office in order to allow those data to be linked to other sources and to create
a registry which permits research across the whole population and a wide
range of indicators to be carried out.
V HOW TO LINK DATA EFFECTIVELY: THE QUESTION OF UNIQUE
IDENTIFIERS AND DATA PROTECTION
The value of a criminal justice population registry lies in the ability to link
data from a wide variety of administrative sources. To be able to do this
effectively, and to avoid duplication in the database, it is essential to create a
single unique identifier which can link across these sources. In Ireland, no
such linker exists at present. There is no identifier which can be used easily
across the criminal justice system. The PPS number (PPSN) is an obvious first
choice for any integrated scheme and its value is stressed by the National
Statistics Board (NSB, 2009, p. 27).
The question of a unique identifier, and in particular, proposals to use the
PPSN for this purpose, appears to be one of the greatest stumbling blocks to
more movement on the linkage of data in Ireland. In the area of health, the
need for a unique identifier is well recognised, but plans to use the PPSN
appear to have given way to the proposed introduction of a separate unique
identifier for health purposes (Department of Health and Children, 2008).
However, the National Statistics Board considers that there must be a way to
link the PPSN to this number for analytical purposes (NSB, 2009, p. 28). In
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addition to the data protection laws, under the Social Welfare (Consolidation)
Act 2005 it is an offence to utilise a PPSN outside of a narrow set of criteria
and only “specified bodies” are allowed to seek it. Criminal justice agencies are
not allowed to request it.1
There is a legitimate question as to whether it is permissible for criminal
justice agencies to collect a person’s PPSN to enable the CSO to link their
criminal justice outcomes with other data. Such individuals may,
understandably, be concerned that the PPSN could be used against them and
have negative consequences regarding social welfare or the care of children or
their health status, with many already likely to be suspicious of authority.
This problem is not insurmountable.
At present, the Garda PULSE system gives a number for each incident
and also has a number for individuals. Subject to the difficult task of ensuring
precision in a system reliant on accurate provision and recording of personal
information, this number could be used to link across the various criminal
justice and other agencies. The number could then be linked to the PPSN by a
centralised body outside the Department of Justice and Equality or any
criminal justice agency. Crucially, there should be no ability for the data
collector (the Gardaí or the Irish Prison Service) to link directly to the PPSN
or indeed to any of the other administrative records, with the CSO, or other
central repository, acting as the body which “deidentifies” any such
information. It is again essential that the PPSN is used simply to link data
from various sources and for no other purpose and that this is enshrined in
legislation.
There is a further barrier to the gathering and comparison of data in the
absence of a post code system throughout Ireland. Administrative records
contain details of a person’s address, such as in the Prisoner Records
Information System, but mapping those addresses onto the “electoral
divisions” used in the Census and in measurements of poverty is not automatic
and requires a further effort on the part of the researcher. Having a post code
to record would give us a far more nuanced and localised understanding of the
backgrounds of prisoners and where different types of offending is
concentrated. The National Statistics Board notes “… the absence of a good
post code system throughout the country hampers our ability to use statistics
to understand what is happening at the level of localities” (NSB, 2003b, p. 21)
and its presence would enable the linkage of different data sets.
An individual identifier would give us important information about the
background, social and health circumstances of individuals in conflict in the
law. It would not, however, allow for information to be gathered on the
geographical distribution of crime to gain an insight into the socio-economic
1
The Garda Síochána may request it but only in respect of its own members.
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and other profile of the areas most affected by crime. It is, therefore, similarly
essential that the data collected by criminal justice agencies regarding the
location of offences be geo-coded. This would allow more effective policing and
social policy strategies to be targeted on those areas with the highest levels of
crime. It would be possible to do this by reference to Garda station, but a more
refined and satisfactory mechanism would be to code at the level of address of
the offence, where this can be obtained. Important information about the
relationships between, for example, crime rates and indices of socio-economic
deprivation, morbidity, educational achievement and others would be possible
to obtain. The Garda Síochána Analysis Service is already engaged in
“hotspotting” or examining the distribution of crimes spatially and temporally
in particular areas. Being able to link that information to data on other
indicators for those locations could facilitate multi-faceted and multi-agency
approaches to local crime (for examples of the unit’s work, see Garda Síochána,
2011).
Using any data for the purposes of a population registry requires not only
robust systems of protection and guidelines as to use, but also appropriate
encryption, user authentication, regular auditing, splitting of the data
transmitted by agencies into sets of personal information and “outcomes”, as
well as controls on the disclosure of data and results. These protections are
essential in order to provide an interlocking system to prevent harm coming to
the individuals involved (Ford et al., 2009; Lyons et al., 2009).
It is possible that some combinations of data, even with safeguards such
as removing a person’s date of birth and using an age range instead, may
enable an individual to be identified from the information given to researchers.
To ensure that such a scenario is avoided, the involvement of an ethics
committee could be provided for in cases where identification may be possible
due to the combination of variables accessed. The holder of the criminal justice
population registry could refer any such projects to the committee, comprised
of experts from relevant disciplines and with input from the Data Protection
Commissioner who would decide whether to grant access and upon what
terms.
5.1 The European Dimension: Tensions Between Data Protection and Thirst
for Statistics
The requirements of European Union law are likely to place the greatest
pressure on the Irish authorities to improve our collection of criminal justice
statistics and curtail the tardiness evident to date. While there is a clear
requirement on EU Member States to take appropriate steps to secure and
prevent the misuse of personal information, there is a complementary
movement within EU law and policy towards the collection and dissemination
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of much more and better quality data in the areas of “freedom, security and
justice”.
This was first made a priority under the Hague programme (EU, 2005)
which gave “Eurostat”, the EU’s statistical agency, the mandate to develop
comparable statistics in these areas. The Hague programme was itself
prompted by the Millennium Strategy on organised crime and the Dublin
declaration which recommended the development of precise, coordinated
statistics on crime in the EU to assess the risks and trends in organised crime
(EU, 2003). More recently, the Commission produced an “Action Plan”
(Commission, 2006). This action plan seeks to develop statistics at EU level
and to provide high-quality quantitative information by specifying the method
to be applied for the gathering of those statistics. Proposals to establish an
Observatory for the Prevention of Crime are likely to drive the desire for
statistical information further. (European Council, 2010, paragraph 1.2.5).
Within the Endnotes to the Action Plan, the Commission also indicates
that it is desirable for policy needs to have information from Member States
on, inter alia, the average length of proceedings, the average length of a prison
sentence handed down and served, by type of offence and the time spent in
pre-trial detention by type of offence (European Council, 2006, p. 26, Endnote
36). Ireland does not at present make any of these publicly available, and it
seems that such information may not even be gathered or at least calculated.
The intent of the European Union to expand its activities in statistical
collection and to coordinate and in some cases direct the activities of Member
States is made most clear in its 2009 Regulation on European Statistics (EC,
2009). This Regulation covers statistical data generally, and is not restricted
to crime and justice, but it is likely to have far reaching effects. The objective
of this Regulation is to ensure the coherence and compatibility of European
statistics through cooperation and coordination between national statistical
institutions and the Commission and creates a legal framework for the
development, production and dissemination of European statistics.
A separate body, the Council of Europe’s “SPACE” series also contains
some basic information on the prison numbers and imprisonment rates across
its Member States as well as information on non-custodial sanctions (for the
latest publication, SPACE II, see http://www.coe.int/t/dghl/standardsetting/
cdpc/Bureau%20documents/CE%20I%202009.pdf).
As a result of all this activity and particularly increasingly onerous EU
requirements, national statistical agencies are likely to come under greater
pressure to provide not only more data in the area of criminal justice generally,
but also data which will allow for the evaluation of EU wide policies. Though
not specifically called for by EU legislation, the creation of criminal justice
population registers would be an obvious way of getting the best quality
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information to fulfil this growing appetite and to broaden the range of
indicators by which policies may be evaluated.
VI INTERNATIONAL EXPERIENCES OF POPULATION REGISTRIES
There are examples of criminal justice and other wide-scale population
registries which could be used as models for any system Ireland might chose
to create. Denmark holds a wide variety of information on population cohorts
born in particular years, recording information not only on the health, social
educational and criminal justice outcomes of those born, but also their
mothers and fathers. This information is contained in several populationbased registers which can be linked together by means of a unique identifier.
Information, in particular a cohort study of men born in 1966, has been used
to great effect by Christoffersen et al. (2003) to provide insights into, for
example, why young men get involved in violent offending. Soothill et al.
(2010) have also followed a 1980 birth cohort of 29,944 males to examine why
some did not engage in criminal behaviour. As the authors comment, the very
large sample sizes and the variety of indicators examined ensure Denmark is
a particularly fruitful place for criminologists and crime policymakers to
study. As they argue: “… with the availability of population registers and the
possibility, under controlled conditions, of record linkage, Denmark provides a
remarkable social laboratory for probing these issues” (p. 234). The example of
Denmark is also instructive given that it is similarly bound by EU
requirements on Data Protection. The Danish Data Protection Agency must
approve all research projects involving the processing of personal data
(http://www.datatilsynet.dk/english/health-research-and-statistics-projects/
private-research-and-statistics-projects/). Section 5(2) of its Processing of
Personal Data Act 2000 states that “… further (i.e. secondary) processing of
data which takes place exclusively for historical, statistical or scientific
purposes shall not be considered incompatible with the purposes for which the
data were collected”.
Although described by Australian scholars as “embryonic” by comparison
with activities in health (Ferrante, 2009), criminal justice data linkage is at a
far more advanced stage in Australia than Ireland. Western Australia made
the first attempts in this area, establishing an Integrated Numerical Offender
Identification System in 1993. This project routinely links police offender
records with those from the courts, prisons and community sanctions. A
unique offender identifier is used. De-identified data is then collected in a
database which has been used for a number of studies, evaluations of
interventions, and in the development of risk assessment measurements. The
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process involves separation of the data provider from the person who links the
data, who is then separated from the person who analyses it. The number of
health studies based on data-linked records has grown from 87 between 1995
and 1999 to 308 by 2003-2007 (Trutwein, Holman and Rosman, 2006). The
Commonwealth government subsequently created a data-linkage investment
plan aimed at linking data across states and territories.
There have also been efforts to make “cross-sectoral” links between justice
and non-justice data. Again in Western Australia, a study has been
undertaken to link the records of those in prison with health records in order
to investigate the morbidity and mortality of the prison population. A large
project has also been undertaken to link the records of young people in conflict
with the criminal law and health, education, child protection and disability
data to examine developmental outcomes in children (Ferrante, 2009). There
are obviously particular concerns in using data relating to children along with
the question of parental consent. However, anonymised data which can be
used with no distress or disturbance to anyone is unlikely to fall foul of our
own Data Protection Acts, but protocols on the particular instance of children
should be considered.
In New South Wales more recently, a study examined the mortality of
heroin-using prisoners compared to the general population. A one-off study
had been undertaken with 375 heroin-using prisoners in 1997. These records
were linked to the Offender Integrated Management System (OIMS) which
records all movements of people in the custody of the Corrective Services of
New South Wales. These data were then linked to a dataset containing records
on the use of methadone maintenance treatment and to “the Master Linkage
Key” which included health records such as hospital data and cancer
registration data. The study found that the participants had died at 6.1 times
the rate of the New South Wales population (Larney and Burns, 2011).
Within England and Wales, there is no unique identifier used between the
various criminal justice agencies. However, a pilot project, using names and
dates of birth, has managed to link the records of 2.8 million people across the
criminal justice system between 2008 and 2010 (Ministry of Justice, 2011) A
“linking identifier” has been created for each person. England and Wales also
has a National Offenders Index, which contains the criminal histories of all
those convicted of an offence since 1963. This has been used to analyse the
relationship between age, gender and crime.
In the public health domain, Wales has introduced the “SAIL” system to
link information on demographic background and interaction with the Welsh
health authorities. This has prompted research into, for example, the
relationships between diet, entitlements to free school meals and results in
state examinations (Ford et al., 2009).
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VII SOME SUGGESTIONS FOR REFORM
Improved data collection and publication in the area of crime and criminal
justice is necessary in order to improve both public understanding of crime
and criminal justice and to improve the basis for policymaking. The increasing
activity of the European Union in this area will also be a very practical driver
of change. A number of specific and concrete recommendations about the Irish
case can be made, which must first be addressed before any wider attempts at
linkage between criminal justice datasets and other administrative holdings
can be attempted.
First, the nature of reporting of data in the annual reports on prisons and
places of detention requires improvement. In particular, the annual reports
should state the average sentence length and number of prisoners committed
and serving a sentence for every category of offence which is used by the
Central Statistics Office in its publications on crime statistics and provide
information which allows comparisons across the European Union. The types
of offences for which those receiving fines go on to be imprisoned for nonpayment should be published. Prison statistics should be published online at
least every six months. At present, the rate of increase of the prison population
has been such that the figures reported in the annual reports are significantly
out of date upon publication. The pressures on the prison system would be
more obvious if figures were published more frequently. Prison statistics
should be released to a rigidly set timetable published well in advance by the
Irish Prison Service (Statistics, 2004: recommendation 1.4).
The existing Prisoner Records Information System should be anonymised
and made widely available to researchers obtaining the approval of the Prison
Research Ethics Committee. In this regard it is also important that the
capacity of criminal justice organisations in the area of statistics be increased.
Our criminal justice organisations should use the same unique identifier for
an individual who comes into contact with any of these organisations. A
criminal justice unique identifier is necessary, along with the ability to link it
to the PPSN.
To facilitate research, the resulting database should be made available as
widely as possible to researchers. This might be achieved by publishing
anonymised datasets online or with password protection authorised by the
Central Statistics Office and subject to the approval of an Ethics and
Information Governance Committee which involves the Data Protection
Commissioner. The very large population health database created by Ford,
Jones et al. (2009) in Wales employs an independent Information Governance
Review Panel which includes representatives from the UK’s National
Research Ethics Service, the National Public Health Service for Wales, the
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British Medical Association and the “Involving People” organisation.
Comparable criminal justice stakeholders as well as judicial involvement may
be appropriate for a criminal justice population registry to secure proper
auditing and analysis of research proposals, but also to engender confidence
amongst the research communities, data providers and individuals. In this
regard, the example given by Ford et al. is again instructive. In its dataset,
data access is location specific and available only via designated PCs in secure
terminals, physically secured to their position and with no facilities to allow
data to be transferred out of them. In addition, products of analysis are
securely transferred and scrutinised by a senior data analyst and a professor
of public health prior to release to researchers. Data users are subject to access
agreements and the staff involved are also bound by access policies. The
approach in Western Australia of ensuring that there are breaks in the ability
to link from data collector to user is a valuable one.
While it is likely that most such research interest would come from
criminological and social policy researchers, many legal academics, law
students and lawyers are involved in sentencing research and are key users of
any such research. However, traditionally, legal education in Ireland has
provided law students with no social science research training of any kind.
This must be remedied. The academic community generally must be active in
calling for reform of our data sources in Ireland and in using what is available.
Training of existing and future researchers in the use of any such dataset is
essential to ensure that its full potential is mined.
It is also essential to provide for a proper statutory basis for the creation
of criminal justice population registries and for their regulation. It is not
enough to do as the Irish authorities have done in the case of the National
Cancer Registry to have a blanket opt out of data protection legislation
without other legislative safeguards for data. It is necessary to legislate to give
statutory effect to confidentiality and protection policies of national statistical
agencies and data collectors.
There should be international sharing of best practice on how to collect
good quality data while ensuring the privacy of individuals. National
authorities should also ensure the publication of practical guidelines for data
collectors, researchers and the public on the appropriate use of data (on
suggestions in the area of public health see (Verschuuren et al., 2008)).
While it is not an easy task to create criminal justice population registries,
there is an urgent need for Ireland to develop adequate statistics on crime and
punishment. Not only will there be increasing pressure from the European
Union for such information, the Irish experience in the formation of prison
policy to date shows the critical importance of basing our plans to spend large
amounts of money and deprive people of their liberty on a proper evidentiary
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footing and to ensure this happens only when demonstrably necessary. It also
facilitates states to analyse an important facet of its population’s “wellbeing”,
that of freedom from crime and also freedom from involvement in crime and
the criminal justice system.
It would be naïve to think that better data and more robust evidence
would of themselves translate into better criminal justice policy. Governments
will always make decisions for political reasons, for convenience and
sometimes out of ideological commitments. However, to act both as a method
of evaluating government actions and to attempt to steer it to a better
approach, the tardy and hesitant approach of criminal justice agencies and
governments in facilitating the development of criminal justice population
registries should be tolerated no longer.
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