Thursday, 18 May 2017

Come What May

In February,Theresa May quipped that when she was at the Home Office she used to say of Justice Secretary Ken Clarke “I locked ’em up and he let ’em out”.  Fears of a tougher approach to criminal policy in the Conservative manifesto have largely been allayed- continuity is the order of the day. While that may be a relief, it’s disappointing to see retained the policy of extending the scope of the Unduly Lenient Sentence Scheme “so a wider range of sentences can be challenged”.  Given recent increases in sentence lengths, reviewing the work of the Sentencing Council would have been a better way forward.

The prison reform legislation interrupted by the election looks set to continue with an additional much needed plan to reform the entry requirements, training, management and career paths of prison officers. Alongside efforts to attract graduates to work in prisons, this suggest a welcome recognition of the need to invest much more in prison staff. Figures out today show a large increase in prison officers leaving their jobs; almost a quarter today have less than two years’ experience in the work.  The pledge to reduce the disproportionate use of force against Black, Asian and ethnic minority people in prison, young offender institutions and secure mental health units represents an overdue commitment to address racial injustice inside prison as well as outside. There's a good idea to encourage employers to take on ex offenders via a 12 month National Insurance break.

As for non-custodial measures, there are promises to create a “national community sentencing framework” and introduce “dedicated provision” for women offenders- whatever they might entail. The drafters of this section seem to have taken on board Churchill’s view that manifestos should be a lighthouse not a shop window.  

There is a bit more clarity about increasing the role of police and crime commissioners. They will sit on local health and wellbeing boards, enabling better co-ordination of crime prevention with local drug and alcohol and mental health services. There’s the prospect too of “greater devolution of criminal justice responsibility and budgets to local commissioners”. With Mayors in London and Manchester keen to extend their responsibilities we could see important changes in governance
   
The Conservatives have not been averse to promising changes to police structures- bringing the Serious Fraud Office into the National Crime Agency and creating an Infrastructure Policing body combining Transport, Nuclear and Defence police forces. There will also be a new domestic violence and abuse commissioner.

I wouldn’t rule out further changes when, as seems likely, Mrs May forms the new government.  I still think we could see prisons moved back to the Home Office. Then the Home Secretary would be in charge of locking up and letting out.  

Wednesday, 17 May 2017

Liberal Order

One of many recent disappointments for prison reformers was how little the Liberal Democrats were able to influence criminal justice policy during their time in government. Almost none of their 2010 manifesto pledges on justice – such as a presumption against short term prison sentences - made it into the Coalition agreement. They might pray in aid a modest expansion in restorative justice. But the Lib Dems share of responsibility both for the disastrous underinvestment in prisons and rushed privatisation of probation weigh heavily on the debit side as does the absurd and thankfully abandoned Secure College for young offenders.  What are they offering to the electorate this time round?

Despite their electoral meltdown two years ago, the 2017 Lib Dem manifesto creditably retains many of the proposals from previous campaigns; the presumption against short prison terms, an extension of the role of the Youth Justice Board to young adults, and a new Women’s Justice Board. They continue to want to see Community Justice Panels and other local schemes designed to resolve conflicts and reduce harm.

As in 2015, the Lib Dems would replace the elected Police and Crime Commissioners (whom they helped to introduce) with local boards and introduce a Victim’s Bill of Rights. This would include a right for victims “to request restorative justice rather than a prison sentence” (whatever that exactly means).

The radicalism comes in the drugs field. Previous manifestos have pledged an end to imprisonment for possession for personal use, but policy on legalisation has gone no further than looking at evidence from abroad. The party is presumably satisfied that the impact on public health and crime of legalisation initiatives in the US and Uruguay are such that they can go further and so now promise a legal, regulated market for cannabis. They’d repeal the Psychoactive Substances Act and move responsibility for policy from the Home Office to Department of Health.

The ambition on the drugs front is not quite matched on prisons. Yes the plan is to transform prisons into places of rehabilitation, recovery, learning, and work, with suitable treatment, education or work available to all prisoners. Trans prisoners would be placed in prisons that reflect their gender identity, rather than their birth gender. And the overrepresentation of individuals from a BAME background reduced at every stage of the criminal justice system, taking into account the upcoming recommendations of the Lammy Review.

But unlike in previous manifestos, there’s nothing about stopping or scaling back prison building. Two years ago the party believed “that a large prison population is a sign of failure to rehabilitate, not a sign of success. So our aim is to significantly reduce the prison population by using more effective alternative punishments and correcting offending behaviour".  In 2017 they look a bit more cautious.

It’s Plaid Cymru whose manifesto has a hint of reductionism. They would block the development of the Port Talbot super prison. But it’s only a hint. Instead they would provide “much-needed” prison spaces for women and youth offenders in Wales.

More Hard Labour?


In the midst of Jeremy Corbyn’s radical plans to transform Britain, it’s perhaps surprising to learn that Labour is still “tough on crime and the causes of crime”. That most Blairite of slogans- albeit one thought up by Gordon Brown- shaped the New Labour government’s approach to criminal justice policy over 13 years from 1997. Over this period, harsher sentencing – in particular for repeat offenders, caused prison numbers to rise from 60,000 to 85,000.  Had Brown won the 2010 election, we were promised a total of 96,000 places by 2014 plus an outlandish plan to use the tax system to claw back from higher-earning offenders a proportion of the costs of prison.

How then to square Labour’s retention of the tough on crime mantra in their 2017 manifesto with a welcome vision of prison as a last resort, "the state’s most severe sanction for serious offences"?  It’s partly no doubt a matter of what the Americans call "optics"- how the policy will look, whatever it actually does. It also reflects divisions within the party about the direction of penal policy which came to a head last year when calls for an end to the penal arms race were met with scorn by the Blairite old guard. For them, the slogan will provide a welcome continuity with the past.

But for Labour’s new vanguard there are attractions too. A 2017 Labour government would of course be aiming to attack the causes of crime by the raft of measures designed to relieve social deprivation and reduce inequality.But what about dealing with people in conflict with the law? 

The manifesto’s recognition that prison is too often a dumping ground for people needing treatment rather than punishment opens up the idea that a determined and durable crime policy does not have to mean an ever increasing custodial population. A programme to expand residential and community based options for people with mental health and drug problems could provide a more effective and no less rigorous way forward.  Expansion of restorative justice –promised in Ed Miliband’s 2015 manifesto and now repeated two years on-could also offer demanding alternatives to prosecution and prison.


On prisons themselves, the 2017 manifesto promises an end to future prison privatisation and a review of Community Rehabilitation Companies but not an immediate return to public ownership of prisons or probation bodies currently run for profit. More and better trained prison staff, personal rehabilitation plans for all prisoners and a review of mental health services in prisons are proposed as ways of reversing the woeful deterioration of conditions in recent years. Sensible of course but radical enough? After all we have heard before that “the prison service now faces serious financial problems. We will audit the resources available … and seek to ensure that prison regimes are constructive and require inmates to face up to their offending behaviour”. That was New Labour in 1997, not so different from today.

Wednesday, 3 May 2017

Manifesto Destiny. Criminal Justice Ideas for the 2017 Election

Chances are we won’t get much about criminal justice in any of the manifestos. But Labour’s surprisingly Blairite promise of 10,000 more police officers suggests that domestic policy may not be entirely absent from the parties’ offerings to the electorate.  It’s a reminder too of how strongly received wisdom shapes policy development in the field, even in a radical party committed to transforming the country. Would not 10,000 mental health workers do more to address the crisis of well being which brings so many into conflict with the law – and free up police time to prevent and respond to more serious harm?    

Here are five criminal justice priorities I’d like to see featured:

1) Sensible Sentences

The prison population has been fairly stable since 2010 at about 85,000, but with a 25% fall in the numbers sentenced for serious crimes over that period, we should really have seen prison numbers go down. The reason they haven’t is that the proportion of cases being sentenced to prison has risen – from 22% to 27% -as have average sentence lengths for almost all types of crime from 16 to 19 months. Sentences have got longer not only for violent and sexual offences but for theft and drug offences too. Further sentence inflation is neither desirable nor manageable. We will introduce a strong presumption against short prison terms and require the Sentencing Council to produce a wider range of guidelines, based on fuller consideration of the cost and effectiveness of different sentences. Stronger limits will be placed on courts preventing them from exceeding guideline levels and new pilot problem solving courts will be encouraged to impose less severe punishments when it is in the interests of rehabilitation to do so.

2) Developing Youth Justice

Youth justice has offered a ray of light in penal policy, with big reductions in numbers in court and in custody in the last ten years. Now’s the time to extend the successful leadership of the Youth Justice Board and the multi-agency approach of Youth Offending Teams to the young adult age group of 18-21 year olds. For the under 18’s, it’s time too to phase out Young Offender Institutions and Secure Training Centres  and expand the number of small secure children’s homes – the only model that has proved consistently able to offer appropriate and constructive regimes for young people in custody. Responsibility for meeting the entire costs of custody for under 18's will be transferred to local authorities and Police and Crime Commissioners (PCCs). In due course local bodies will be able to commission secure and other accommodation for under 18’s rather than simply purchasing what is currently available

3) Promoting Probation

Half of the £1.3 billion being used to build four new prisons, will be used to invest in community based alternatives to custody for the 50,000 people a year given short prison sentences – through more investment in supervision provided by probation, Community Rehabilitation Companies (CRC’s) and other organisations; by improved dialogue with judges and magistrates and better links with the public. Priority will be given to keeping women and people with mental health problems out of prison environments and strengthening the availability of community and residential treatment services instead. We will conduct a genuine and wide ranging review of Transforming Rehabilitation to ensure that when current CRC contracts end, a suitable model is in place for a reinvigorated probation service.

4)  Safeguarding Prisons

We will redraft the Prisons Bill with much stronger duties on the authorities to provide decent conditions, avoid overcrowding, and treat prisoners with humanity, fairness and respect for their dignity. Prisons will be required to ensure proper staffing ratios based on 2010 levels and a task force established to drive developments in education, vocational training and work in prisons. Mental health services will be strengthened and a programme to develop life coaching for prisoners expanded across the estate.


 5) Rehabilitation Devolution

We will develop a Justice Reinvestment Taskforce to identify  the best ways of transferring responsibilities for justice services to a more local level, with a view to devolving budgets by the end of the parliament.  Police and Crime Commissioners will be invited  to chair new Justice and Safety Partnerships with CRC’s, local government, health and judicial participation which would give a greater regional voice in the system and create a commissioning vehicle to which criminal justice budgets might be devolved. Pathfinder initiatives will be agreed with Mayors in London and Manchester through which savings resulting from reductions in prison numbers will be reinvested in prevention and rehabilitation programmes.

There is a lot more that a new government should do- not least committing to take seriously David Lammy's recommendations on race equality in criminal justice; expanding the availability of Restorative Justice and considering a new approach to illegal drugs. But action on these five might help bring to an end what has been an increasingly unhappy period for criminal justice in England and Wales.    

Wednesday, 19 April 2017

What's on the criminal justice cards from a new May government?

More shocking revelations on prisons, this time from the Council of Europe’s Committee for the Prevention of Torture who visited a range of detention facilities last year-Pentonville and Doncaster prisons and Cookham Wood YOI (as well as police stations, immigration detention centres and closed psychiatric hospitals).  The report catalogues the depressing if familiar reality of prison conditions, finding none of the three establishments safe for prisoners or staff. The CPT found that locking children alone in their cell for all but half an hour a day amounts to inhuman and degrading treatment. And they were concerned that incidents of violence was under recorded, particularly at SERCO run Doncaster.

It’s possible that the report will be the last of its kind. If Mrs May fulfils her wish to withdraw from the European Convention on Human Rights, a new Conservative government will find itself with a BREXIT 2 to negotiate. The Council of Europe may be the smallest of beer compared to the EU but it’s the continent’s leading human rights organisation. We may find ourselves sharing observer status with Belarus. But at least we won’t have to worry about letting prisoners vote.

What else might we see from a new Conservative government on the justice and prison front? There’s quite a bit from the 2015 manifesto that hasn’t been achieved. The promise of new technology is as yet undelivered, whether to monitor offenders in the community, to bring persistent offenders to justice more quickly or allow women with small children to serve sentences in the community. Perhaps thankfully there is no sign of the new semi-custodial sentence for prolific criminals, allowing for a short, sharp spell in custody to change behaviour; nor of extensions to the scope of the unduly lenient sentence scheme. Will we see these commitments reappear in this year’s manifesto or will they be quietly shelved? What will happen to plans for increasing penalties for driving offences which result in fatalities?

At least one commentator thinks that the 2015 manifesto is the enemy Mrs May wishes to slay. If he is right, there is no guarantee that the prison reform measures contained in the Prison and Courts Bill will necessarily reappear. For those with long memories, the post 1992 Major Government rapidly undid the liberal justice reforms it inherited. The counterpoint of recent headlines about prisons no longer being places for punishment and violent crime surges could easily prompt  a harder approach on criminal justice in the new manifesto. Despite the flowing oratory of Michael Gove and process re-engineering of Liz Truss, the ghost of Michael Howard has never been far from the feast. While Mrs May is difficult to pigeonhole, I've always doubted whether  her appetite for rehabilitation and redemption will have been sharpened by six years in the Home office- famously described by Peter Hennessy as the graveyard of liberal thinking since the days of Lord Sidmouth. 


The CPT emphasised that unless determined action is taken to significantly reduce the current prison population, the regime improvements envisaged by the authorities’ reform agenda will remain unattainable. I wouldn’t put money on that. The best we can hope for is perhaps a steady state. Although if I were a betting man, I’d put a flutter on the dismantling of the Ministry of Justice.  It’s quite conceivable that prisons and probation will return to the Home Office. The Tories have always thought of the MoJ as a European construct ill- suited to our traditions. Prepare to welcome back the Lord Chancellor’s Department.   

Tuesday, 28 March 2017

I Told You So

American novelist Gore Vidal described ‘I told you so’ as ‘the four most beautiful words in our common language’. But for those of us who predicted it, there has been little pleasure in seeing the debacle of probation privatisation laid bare in front of the Justice Committee during its short inquiry into Transforming Rehabilitation (TR) that wound up this morning.  It’s a shame the Committee has not done a fuller investigation. As with the MoJ Probation review, no written evidence has been invited. Perhaps both Ministry and Committee knew the horror story they would get-and the fact that the plot had all been told in advance.

So badly botched are either the contracting or management arrangements that the private community rehabilitation companies complain simultaneously that they have too few cases and that caseloads are unmanageably high. One CRC director gave ‘a wrong kind of snow’ type explanation for this but it’s hard to have much sympathy- unless that is, the private sector was actively misled by the MoJ – (a serious allegation made today which should be investigated).  After all, one of the alleged benefits of privatisation is that it can transfer risks (such as changes in demand for services) from the government to the private sector.

But less than two years into the seven year TR programme, the contracts are having to be reviewed and presumably money found to bail out the multinational corporations that run most of the CRCs. Did anyone seriously believe that with the same overall budget, the new Probation and CRC set up could be expected to supervise and rehabilitate 25 per cent more offenders than the Probation Trusts they replaced? The result is that the through the gate supervision of short term prisoners post release – the supposed jewel in the crown of TR-  according to one witness amounts to “£46  and a leaflet” , compared to just £46 previously.

Despite that reality, a witness told the Committee today that courts are imposing more short term prison sentences than pre-TR, thinking offenders will now get punishment plus help. The Chairman of the Magistrates Association said last week that if sentencers do not have confidence in the robustness of the alternatives to custody, they may conclude that there is no alternative to custody. These adverse risks for prison numbers were well rehearsed but ignored during TR’s rushed implementation. Just as worrying was today’s evidence that CRCs are not getting breach paperwork to court in time.

One ray of light in an otherwise gloomy landscape looks to be in the North East where the Durham and Tees Valley CRC seems to be avoiding most of the pitfalls. It’s no coincidence perhaps that it’s a single not for profit organisation run by a consortium of local organisations where staff have designed the operating model. Unlike elsewhere morale is good. But looked at in the round it’s hard to see how the Justice Committee can find TR so far anything but a major failure of public administration.



What is to be done? The reality is that with some crutches from the MoJ review, the arrangements are likely to limp on until 2021 but unless there’s a drastic improvement, something different will be needed then if not before. In London, the Mayor’s Office wants to join the oversight arrangements of the CRC “with the intention of devolving the full contract and commissioning responsibilities  once the current contract ends”. If performance in the capital does not improve, maybe that should happen sooner. A more genuinely local approach rooted in Justice Reinvestment is surely the next chapter for probation after this tale of woe.  

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.