Thursday, 16 March 2017

Prison : Tide Going out or Calm before the Storm ?


Two reports out this week might give cause for guarded optimism about the use of imprisonment throughout the world. The Council of Europe reported that the number of people held in European prisons decreased by almost 7% from 2014 to 2015, finding reductions all over the continent from Denmark to Greece and Lithuania to Northern Ireland. There are countries who have gone the other way too, notably Turkey- and others where prison numbers have stayed fairly stable such as England and Wales. Perhaps the most striking statistic is the difference in incarceration rates between former Soviet states on the one hand where more than 200 per 100,000 of the general population are behind bars and Nordic countries where the level of imprisonment is closer to 50.  But even Russia, by some distance Europe’s leading jailer at more than 400 per 100,000, reported earlier this week that the population in its penitentiary system is the lowest for 25 years.

The use and over use of prison – and its miserable and sometimes deadly human consequences - have been examined in more detail by the Institute for Criminal Policy Research (ICPR) in an analysis of the recent experience of ten countries across five continents. Good news comes from the Netherlands – after a tripling of its prison numbers in the 90's it's back down at the Nordic level  and renting out its empty cells- and some promising trends in South Africa and the USA where sky high prison populations are at least falling. There are a number of “could do betters”- particularly where prisons are overfilled with pre- trial detainees (India, Kenya); and a worrying punitive turn in Australia. But a particularly ugly picture is painted in Brazil and Thailand where the war on drugs has fuelled astonishing rises in the use of prison which now make them 4th and 6th respectively in the global league table of prison populations

ICPR do their best to draw lessons from the vastly differing histories, cultures and legal systems they describe, arguing that there is nothing inevitable about prison population growth. It's certainly not a simple correlate of crime rates with a host of factors inside and beyond criminal justice interacting to determine the numbers locked up at any particular time and place. Brazil and Thailand notwithstanding, the report optimistically notes a growing recognition of the harms and ineffectiveness of tough law enforcement approaches to drug misuse with other strategies gaining ground.

Equally of course, despite the financial, social and ethical costs of prison, there is nothing inevitable about the reduction in its use. Politicisation of sentencing is one of the villains identified in the report and the populist politicians currently in the ascendant make unlikely penal reformers. ICPR raise doubts about the impact of deterrence and incapacitation despite their popular appeal. The report may be right too that the penal objective of denunciation is achieved by sanctions other than incarceration, such as fines or unpaid work – potentially with much less collateral damage. But that’s a hard political sell in the best of times. And we are not in the best of times.  

Even if state responsibility for most American imprisonment means that it may not matter too much what Trump thinks about mass incarceration, the rise of the authoritarian right elsewhere threatens to stop reform in its tracks.  ICPR describe the harsh penal measures introduced by FIDESZ in Hungary. Even out of power, populism and anti immigrant rhetoric can exercise a baleful influence on the policies of more moderate parties in a penal race to the bottom. Will the Netherlands be able to retain its parsimonious use of prison over the next five years? 

What's certain is that many countries will need the workable strategies to curb the resort to imprisonment which ICPR promise to develop as a follow up to their very useful evidence report.

Saturday, 25 February 2017

Youth Custody Changes : Progress or Retreat?

What’s to be made of the changes announced yesterday to the governance of youth justice in England and Wales?  The stripping from the Youth Justice Board of its role in commissioning, purchasing and monitoring of detention facilities is not altogether a surprise. The YJB’s failure to prevent the deteriorating situation in Rainsbrook and Medway Secure Training Centres in 2015 may have been the straw that broke the camel’s back.  But the problem is more deep seated than that.  The Youth Custody Improvement Board (whose report on the secure estate was also published yesterday) was “astonished” that after sixteen years at the helm, the YJB considers the current arrangements not fit for the purpose of caring for or rehabilitating children and young people. Liz Truss seems to agree so youth custody will in future be hitched to her wagon of prison reform with a Youth Custody Service set up as a distinct arm of the new HM Prison and Probation Service.

Back in 1996, Prison Inspector Sir David, now Lord Ramsbotham recommended that the Prison service should relinquish responsibility for all children under the age of 18, arguing that its priorities meant it could not be expected to provide the level of care, supervision and support required by teenagers. Instead of implementing the recommendation, the Labour government hoped the YJB could transform the way the service looked after young people. Thanks to substantial investment, particularly into education within Young Offender Institutions, there were initial improvements. The Children’s Rights Alliance for England, normally a stern critic of conditions for detained juveniles, concluded in 2002 that ‘results have been great, in some cases near miraculous’

The improvements could not be sustained and despite substantial falls in the numbers in custody since 2008, Young Offender Institutions have struggled to provide safe decent environments let alone rehabilitative ones.  Last year’s Inspectorate report on Wetherby found for example that “the core day was not designed to meet the needs of the population. Time out of cell was inconsistent and unpredictable, and there were frequent cancellations and regime restrictions. Exercise was limited to 30 minutes each day, weather permitting”. In truth, the levers available to the YJB have been limited and its influence over what happens in  YOIs negligible compared to that of the Prison service.  

So will the new Youth Custody Service fare any better in bringing about change?  It’s certainly promising that a distinct cadre of specialist staff will be recruited and trained to work with young people. But they will need to be incentivised to stay in the sector. Historically, the prison service has not sufficiently recognised or rewarded work with young people despite its challenges and the skills required to do it well . There will need to be wider reforms; an agenda designed to make physical environments more suitable for teenagers and a review of the rules and procedures in YOIs most of which are primarily designed for adults.  Achieving cultural change may be the hardest obstacle.  When I was on the YJB, the POA objected for years to replacing traditional prison officer uniforms and were not exactly champions of a child centred approach.

Yet there were and no doubt are some excellent staff and good models of practice in the youth estate. When I left the YJB in 2006, I concluded that these could be very much more effective within an organisational ethos and structure dedicated to the secure care of young people. By that I meant a new service outside the prison system.    We are not getting that, so the question is whether transformation can be driven from within it. I have my doubts.


Tuesday, 14 February 2017

The Speech Liz Truss Should Have Given......

I am glad to be at the Centre for Social Justice because our prison system is anything but socially just. The use of prison inevitably imposes enormous financial, social and ethical costs.  In what everyone can now agree were reckless efforts to rein in the first of these costs, the second and third have risen to unacceptable levels.  As a former management accountant I am determined to do something about that.

In terms of the numbers of prisoners, it is shameful that we have the highest prison population rate in Western Europe and almost twice the rate of the Netherlands and Germany.   And while prison numbers have at least not risen since 2010, they should really have fallen. The numbers sentenced by the courts for indictable and either way offences has fallen from 370,000 to 280,000 in the last six years. It’ s true that there has been a marked increase in convictions for sex offences and the public rightly expect the most serious cases to receive a proper level of  punishment. But how, in a period of austerity, with prisons in crisis, are we to justify the fact that more than 27% of theft and burglary offences were punished with imprisonment last year compared to 22% in 2010? Or that the average sentence lengths for these crimes rose from 8.8 to 9.2 months?  There’s a similar pattern to drug offences and fraud. 

I would like to see prison reserved for the most serious offenders and sentence lengths brought into line with Western European norms.  I am instructing the Sentencing Council to revise its guidelines to give effect to that. We should aim to reduce our prison population by ensuring that the upper limits of the revised sentencing guidelines are not exceeded by the courts and by encouraging alternative problem solving approaches and restorative justice wherever that is justified. In many cases this might involve a more lenient approach than some might like but we desperately need a more varied and effective approach to the complexity of crime so that victims, offenders and the public get better results.

In drawing up guidelines, the Council must look at the cost and effectiveness of sentences. I have to say on those criteria, I am not convinced that all of the people that currently go to prison need to be there, or be there so long. Of the 77,000 people sentenced to prison for the more serious offences last year, 28,000 were sentenced for theft and burglary. More than 30,000 of the 77,000 were sentenced to 6 months or less. I’m pleased that the number of short sentences has been falling but it has a long way to go. After my review of Probation reports next month, I will be looking at ways that the service can contribute to diverting many more of these short term offenders from jail.  I am also interested in exploring how elements of a prison sentence can be converted into a community based sanction. If prisoners agree to undertake a period of unpaid work in the community for example they could be released earlier from custody than they otherwise might have been.

This will help  with overcrowding which I now realise is the key problem that needs to be solved before we can regain control of our prisons and start to make them the rehabilitative institutions we have been promising.  To provide immediate respite, there will be a presumption that all sentences of up to 2 years will be suspended.  I am also taking executive action to release IPP prisoners who have now served longer than the maximum current sentence for their offence and for all post tariff cases, I will be taking to steps to ensure that prisoners only continue to be detained if there is evidence they remain a danger to the public.

I hope that these measures might give the prison system the breather it needs. I might be accused of a quick fix but I believe I am taking the necessary urgent action to address what is an emergency while laying the groundwork for a sustainable future.  To inform longer term plans I have established a Justice Reinvestment Task Force which will report by the summer on how to establish direct financial incentives for local agencies to spend money in ways which would reduce prison numbers. I am not convinced that the costs of imprisonment should continue to be borne at national level.  At the end of the day, prison is only a small part of the answer to crime.    


Thursday, 9 February 2017

NOMS to HMPPS: Rebadging or Real Reform ?

So the National Offender Management Service is no more, to be replaced by Her Majesty’s Prison and Probation Service. Is it a rebadging of what is perceived as an unloved and unlovely bureaucratic monster with a more transparent and comforting title? Or a more significant shift in responsibilities which will lead to real change?

There are undoubtedly highly positive elements in in the Truss reforms; long overdue investment in staff not only of resources but professional training and status. There will be a greater focus on women in the criminal justice system- much needed although we’ll have to see whether adding the responsibility to an existing role will bring about the far reaching reforms that are urgently required.

For some in the probation world, the hope of a quickie divorce from their forced marriage to prisons has been dashed although the new arrangements could lead to a conscious uncoupling in due course. Much depends on the review of the reformed system which will report in the spring.

But what of prisons? The Prison Safety and Reform White Paper makes no mention of replacing NOMS. It’s in the design of the reformed prison system in paragraph 68. HMPPS will be an Executive Agency like NOMS. It will continue with the core of its business – managing prisons -but be stripped of its role in commissioning services, making policy and it seems monitoring performance.  From April these functions will move to the Ministry of Justice.  Agreements between individual prisons and the MoJ will also come into play although in an unpromising start, the Prison Governors Association have advised their members not to sign them. Despite the White Paper’s promise of negotiation, there apparently hasn’t been any.

Although the new arrangements promise clarity, there are still many questions. Is it sensible to split commissioning and contract management between the MoJ and HMPPS?  Where will Electronic monitoring fit? And where will the line on policy development be drawn? The Prison service instructions introduced last year included guidance on preventing corruption, the interception of communications, faith and pastoral care for prisoners, searching of cells and the care of transgender prisoners. We have been promised a bonfire of these instructions although almost all look important and most essential. Some may be better informed by policy wonks in the Ministry of Justice but most need experienced operational input. 

One of NOMS biggest critics argued it was “dangerously out of touch with its operational heartland”. In that respect the new arrangements could make things worse not better.  

Thursday, 29 December 2016

A Year in Prisons


A year that opened with David Cameron championing prison reform as a great progressive cause in British politics ended with a record number of deaths, a high profile escape, staff walking out and Tornado teams quelling a series of major disturbances. The first six months saw Michael Gove promising the earth but delivering almost nothing; the second Liz Truss scrambling for funds and ideas to repair the damage inflicted on the prison service by her predecessors.


Her White Paper may not have lived up to its hype, but she quickly recognised that getting more staff onto the landings is a prerequisite for anything more ambitious. Having previously argued that prisons should be tough unpleasant and uncomfortable places, she makes an unlikely reformer but deserves the chance to fix the mess she inherited.

Truss baulked at Charlie Taylor’s extravagant plans to reconfigure youth justice and has so far resisted proposals to reduce the numbers of adults in prison- not surprisingly for a proponent of longer and tougher sentences. Ken Clarke, Nick Clegg and Jacqui Smith joined the list of politicians prescribing radical policies once they cease to have the power to implement them. Their call to halve the prison population received some support from Labour but they have form in calling for - and reneging on - a halt to the arms race on punishment. Michael Howard thinks it gravely irresponsible to slash prison numbers.  But even he says there might be room for modest reform.

Measures beneath the radar are probably the best we can hope for in 2017.The Sentencing Council could play a greater role in stabilising sentence lengths but problem solving courts seem to be on hold. It’s not clear how far the devolution agenda has to run in justice.

Probation could normally be expected to play a greater role in replacing prison but its reckless privatisation has left it struggling to cope with existing work let alone take on more. We will find out early next year if a review leads to contracts being torn up – or more likely tinkered with.

We are due a progress report too, on the 10,000 new prison places due to be built in  9 new prisons by 2020.  Don’t be surprised if these have been delayed. NOMS Chief Michael Spurr told the Justice Committee last month that it will be 2025 at least before prison cells hold only the number of prisoners for which  they were designed.   Prison reform may just about still be a great progressive cause -but it's a long term one. 

Monday, 12 December 2016

The Youth Justice Review : A Plumber responds to an Architect



There’s a lot to be said for the report of Charlie Taylor’s youth justice review, which has finally been published along with the government’s response; and one question. What will actually be done with it?

We learned yesterday that two secure schools will be created but when, where and in place of what remain to be seen. Ironically they are probably the least promising of the review’s recommendations. Despite mountains of evidence about the ineffectiveness of custodial institutions, Taylor has felt obliged to invent yet another species.  Approved schools, Detention Centres, Borstals, Youth Treatment Centres, Young Offender Institutions, and Secure Training Centres have all proved more or less expensive failures. The Coalition’s plan for a Secure College was quickly killed off by Michael Gove before he announced the review.  Do we need another variant?

From what little detail is available, Taylor’s schools seem most likely to resemble what are now known as Secure Children’s Homes (SCH’s) –small therapeutic  establishments , mostly local government run,  necessarily expensive and whose numbers have declined substantially in recent years. The secure schools will be bigger than SCH’s with 60-70 places – probably a mistake- but more promisingly Taylor wants to see more temporary release and lower security levels.  Reversing the decline in the number of SCH’s combined with serious reforms to reduce further the need for under 18’s to be locked up at all looks a better strategy than devising yet another generation of closed institutions . 

To his credit, Taylor does go some way down the demand reduction road, recommending an end to short custodial sentences, fewer remands in custody and young people- children first, offenders second for him– as far as possible kept away from the “tainting” effects of the formal justice system.  The review proposes that children under 16 should only have their liberty restricted exceptionally if they pose a serious risk to the public. On these recommendations the Government response is distinctly cool.

It’s lukewarm on Taylor’s proposed devolution of the costs of custody to local authorities, together with the power to commission the kind of services that children in trouble require. While recognising the need for greater input from health and education, Taylor thinks the mandatory model of Youth Offending Teams (YOTs) may be past its sell by date, inhibiting potentially more effective partnership arrangements. A logical consequence of devolution, that’s still a risky call in a climate of cost cutting. The government seem to recognise that an absence of a statutory duty to run a YOT, and the removal of ring fenced funding may produce not local innovation but the kind of neglect that required the dirigiste reforms of the 1990’s.   The result of this part of the review is…another review. 

The driver of those 1990's reforms, the Youth Justice Board, looks to have survived.  Taylor thought it could be replaced by a Youth Justice Commissioner in the heart of rather at arms- length from the MoJ, with a potential move to the education department. Instead, when it plays a part of the new review of governance, the YJB is unlikely to cast itself as a Christmas voting turkey.  

Taylor’s most radical idea is to have decisions about dealing with children in trouble made not by magistrates in a youth court –though they would continue to decide on matters of guilt and innocence- but by new panels akin to those operating in the Scottish Children’s Hearings system. These would not be mini courts- though some current JP’s could become members alongside others with experience of young people, in particular their education. Panels would draw up, publish and review plans for each child setting out not only their obligations not also those of the agencies responsible for their care and supervision.   The most serious cases would continue to go to the Crown court but with plans drawn up by the panels. 

It’s a bold proposal but moving from a “justice system with some welfare to a welfare system with justice” has proved many steps too far for the MoJ. What would be the biggest change to youth justice since 1969 is going nowhere. There are plenty of worthwhile recommendations which the Government can take forward  - better training for appropriate adults, improved legal advice,  less criminalisation of children in care , streamlined assessment and a limit on criminal records. More staff in YOI’s will be useful too, confirming Liz Truss as less of an architect and more of a plumber.  

Council of Despair?

How can we reduce the number of prisoners in England and Wales?    The government’s view seems to be that the 86,000 men women and children behind bars “is the result of the sentencing approach taken by successive Governments of different colours and there is no way to arbitrarily reduce the prison population”. Behind the scenes, Ministers who are not only responsible for sentencing policy but for the creaking prison and probation services which give effect to it , may be less sanguine. Privately they may well share the view of former Lord Chief Justice Woolf that “with the situation in our prisons today, we cannot afford to have further sentencing inflation.”

If ministers do want to at least limit the growth of prison, they could well ask about the role of the Sentencing Council- the body which for the last six years has been issuing guidelines to courts about the appropriate levels of penalty for particular offences. In a new report for Transform Justice – The Sentencing Council for England and Wales: brake or accelerator on the use of prison? - I look at the impact the Council has had on prison numbers and what more it could do to make sentencing more effective.

It’s true that the prison population has been fairly stable since 2010, but with a 25% fall in the numbers sentenced for serious crimes,  we should really have seen prison numbers go down . The reason they haven’t is that average sentence lengths have gone up for almost all types of crime. While there may be several culprits in all this, the Council has a case to answer. The Council’s own evaluations of the effect of its guidelines on assault and on burglary found that sentencing became more severe than it had expected. Guidelines may have stifled creativity by focussing courts’ attention more on aggravating factors than on aspects of a person’s circumstances which may reduce their culpability and make their sentence capable of being suspended.

The report makes a series of recommendations designed to encourage the Council to take a less conservative approach to its work. It could pay much more attention to the costs and effectiveness of sentences when producing guidelines, for example encouraging courts to go below the usual range if it is in the interests of problem solving or rehabilitation. Guidelines on the distinctive approach to be used when sentencing women, young adults, older offenders and offenders with mental health problems are sorely needed.


The Council – like all arm’s length bodies – should really have been subject to a review by the Government. But it has been exempt because of “its unique role in maintaining the constitutional balance between the executive, legislature, and the judiciary”. The nature of that balance was deeply contested when Lord Carter first proposed a Sentencing Commission back in 2007. MP’s and particularly judges were alarmed that over prescriptive guidelines produced with more than half an eye on the size of the prison population could unreasonably limit judicial discretion. 

Given the current prison crisis, the Transform Justice report argues that it’s time to open up this question again.  The Justice Committee which has previously argued for a much reduced prison population and reinvestment of resources into prevention and rehabilitation, should establish an inquiry into the role of the Council and revisit the desirability of linking guidelines to resources.