Thursday, 9 November 2017

Rush to Judgement

 “In order for courts to make greater use of probation, they must know about what non- custodial sentences entail and have confidence that it will provide an adequate level of supervision”.  That’s one of my conclusions in a review of a newly formed Probation system in Eastern Europe from earlier this year. Little did I think that it’s something that may now need saying about England and Wales.

Last week a London magistrate told an event on community sentences that she and her colleagues knew virtually nothing about what such sentences entail. This week the Deputy Chair of the Magistrates Association admitted that the demands of speedy justice increasingly mean that JPs have inadequate information about the people they sentence. A senior CRC manager put it more bluntly to inspectors in a report published today: “The push towards same-day sentencing has been devastating. It’s all about getting a report and offender ‘done on the day’, not about getting the right outcome.”

The West Mercia inspection report paints a highly dysfunctional picture. Only half of eligible and suitable offenders get sentenced to programmes most likely to reduce their re-offending. Some of those the courts do require to participate are ineligible or unsuitable. While the courts seem to rush to judgment when sentencing, cases returned to court because of a breach, face waits of up to six weeks at magistrates’ courts and three months at the Crown Court.

In years gone by courts would happily adjourn a case for three weeks to obtain a comprehensive social inquiry report to assist their decision-making. Admittedly, some of the contents may have been surplus to requirements - one research study I remember found a report on a 50 year old man opening “Brian was a fat and placid baby”. But there’s now simply not enough in the way of core information. Justice Secretary David Lidington has been struck by the fact that less than one per cent of all requirements started under a community or suspended sentence order are Mental Health requirements. Someone needs to tell him that even where such interventions may be available, the time needed to make the arrangements often isn’t. In West Mercia inspectors found that “the proportion of court reports produced on the day of sentence in magistrates’ courts had increased from 47% to 75% over the past 18 months. This was still short of the national target, which required a further 15% to be produced either on the day or in a short written format.”

The pressure on reports predates privatisation but the fact that courts do not have direct contact with the Community Rehabilitation Companies (CRC’s) hasn’t helped raise their knowledge about alternatives to prison.  All of the liaison goes through the National Probation Service. There’s a reason for that. Now that sentences are supervised by private companies, sentencing decisions have taken on a commercial dimension. The Guide to Judicial Conduct makes it clear that the requirements of a Justice’s office and terms of service place severe restraints upon the permissible scope of his or her involvement with any commercial enterprise.

It’s just one example of the corrosive effect of privatisation. Another may be the way CRC’s charge organisations who benefit from offenders’ unpaid work. In West Mercia “unpaid work staff complained that they were not told where the money went, and so they could not answer when the beneficiaries of the work quite reasonably asked what happened to the charge they paid”. It is not surprising that “this had caused some local public relations difficulties”.

Lidington said this week that “we are now looking at probation with an eye to improving performance and maintaining the confidence of courts and the public alike”.  He should look at the courts too. They need to have the time to do their job properly.  In a forthcoming report for Transform Justice, I’ll be arguing that there’s plenty of scope for increasing diversion and out of court disposals in minor matters.  Among many benefits, it would allow courts to spend the time they need devising the right outcome in more serious cases.

Tuesday, 7 November 2017

Youth Custody Update- Nothing for Young Adults , Fantasy for Children

Like many discussions on young adults in the criminal justice, today’s Justice Committee hearing turned out mostly to be about children under 18 instead. Indeed Justice Minister Dr Philip Lee did not seem all that convinced that young adults should be treated any differently from anyone over the age of 18.  Yes, the Prison service is piloting a maturity assessment tool for use with young adults although it wasn’t at all clear what practical measures will result from it.  One of the key questions- is it better for young adults to be accommodated in specific institutions or mixed with adults remains unanswered. There are only three young adult YOI’s left- Aylesbury, Deerbolt and Feltham B and there seemed little appetite from Lee or Prisons Chief Michael Spurr to develop the kind of age appropriate model which works well in other countries.

For under 18’s by contrast there seems an ambitious, if not precipitate, long term vision of replacing the current portfolio of closed establishments with the new secure schools proposed by Charlie Taylor in his review of youth justice.  The first two- one of which will be in the North West, will not be up and running for four or five years but Dr Lee seemed confident that when they prove successful they will be rolled out nationally by one of his successors. When pressed for detail about what they’ll be like, Lee told the committee the young people will spend more time outside and engage much more in sport.  More than once he quoted a Saracens Rugby initiative in Feltham which had a re-offending rate of 8%.

Lee is a keen sportsman. According to Wikipedia he has played competitive rugby union for Marlow RFC and seems to have followed the England football team at various tournaments which shows commendable resilience at least.  There’s a lot to be said for encouraging much more in the way of physical activity and team sports for young people behind bars. But surely a custodial strategy for this age group as a whole-including girls- needs to be based on very much stronger philosophical and policy foundations.     

In the meantime, Lee mentioned almost in passing, that controversial outsourcing giant G4S are no longer seeking to sell Oakhill STC and want to make a go of running the contract which lasts until 2029. In 2016, the company announced it would be selling its UK children’s business. Whether it cannot find a buyer or have had second thoughts is not clear.  Ofsted found earlier this year that Oakhill “requires improvement” so the results of the next inspection will be awaited with interest.  Spurr told the committee that another STC- Medway - had got a lot better since HMPPS had taken it over from G4S. In fact Ofsted found Medway “inadequate” back in March, eight months after the July 2016 takeover. YJB chair Charlie Taylor – who wasn’t at the hearing – has apparently found it much improved since then.

Given the latest G4S debacle at Brook House Immigration Removal Centre, currently being investigated by the Home Affairs Committee, one might have expected Dr Lee and his colleagues to have informed Parliament and the public before today about the G4S change of plan. There must remain serious doubts about the company's fitness to look after some of the country's most vulnerable, damaged and challenging children.   

Sunday, 29 October 2017

Margin of Error: Government Proposals on Prisoner Voting Are Not Good Enough

So the Government may finally allow convicted prisoners to vote in elections albeit in very limited circumstances. It’s not clear from the reports the categories for whom the current ban will be lifted. Will it be those serving sentences of less than 12 months who happen to be outside prison on day release on the date an election happens to fall? Or will a more proactive scheme be introduced for enabling those short term prisoners who would be eligible for so called Release on Temporary Licence (ROTL) either to go out to a polling station or cast a vote in jail?  We’ll have to wait for the eventual proposal but either way it’s a tiny number who will be enfranchised. The leaked Government paper talks of hundreds (out of 86,000 prisoners) but it could be tens. Day release is seldom used for the 6,000 odd short term prisoners as things stand.

The idea presumably is to make a change significant enough to satisfy the European Court of Human Rights that their rulings in the Hirst case have been complied with; but so insignificant that Parliament and the public can swallow it, without in the case of the former Prime Minister regurgitating.

Will the strategy work? Dominic Raab, now a Justice Minister, thought six years ago that “giving the vote to prisoners sentenced to six months or less or a year or less is not a compromise, because it is bound to be rejected by Strasbourg”. The apparently narrower offer now on the table – a sub-group of short sentenced prisoners- could presumably be thought more likely to fall outside the margin of appreciation allowed by the Court. But since 2011, the ECtHR has bent over backwards for the UK. It refused to allow prisoners to be compensated for their inability to vote in spite of its ruling that the blanket ban was unlawful. In controversial decisions too, it decided that the regime for whole life tariffs in England and Wales is compatible with the ECHR although in truth the scope for review and prospect for release in such cases are so limited that it is hard to see how the sentence is reducible or  gives a genuine right to hope.  The ECtHR also allowed extradition to a US Supermax prison described by a former warden as “a clean version of hell”. For what it’s worth I reckon that the court will be content with at least some move towards compliance, however token.

What about domestic reaction? In 2011 an overwhelming majority of MPs the supported the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand. Those who voted for the status quo included Raab and his current colleagues in the MoJ Phillip Lee and Prisons Minister Sam Gyimah. The current Home Secretary and Solicitor General backed the motion put forward by David Davis and Jack Straw as did three other current Cabinet Ministers. If the new line is agreed by Government they would need to support it or resign. One of them, now culture minister Karen Bradley told parliament that she “
was elected to be the voice of my constituents in this place, and many of them have contacted me to express their concern about the matter. They are firmly, to a man and a woman, against any move to give votes to prisoners, and I am wholeheartedly in agreement with them”.

While many Labour members voted to keep the ban, Jeremy Corbyn was a teller for the noes. His argument in the debate is surely the right one. “If we as a country are signed up to the European convention on human rights, ...and if the Court makes a judgment on the question of prisoners' voting rights within that convention, we are bound by that judgment, by treaty and by law”. 

The Government should legislate for a much more generous arrangement on prisoner voting than the pitiable offer  doing the rounds in Whitehall and bring to an end a  shameful episode for the rule of law. 

Wednesday, 4 October 2017

A Matter of Judgement

Earlier this week, Labour peer Lord Adonis shifted his fire from university bosses to judges. Both are often considered (and consider themselves) to be world class; but Adonis tried to use the large increase in the prison population since the 1990’s to claim that the judiciary were far from that. In a series of provocative tweets, he accused them of sins of commission – pushing up the going rate for offences - and omission- failing to stand up to illiberal government criminal justice proposals and the punitive tabloids.

Various legal tweeters rushed to the judges’ defence pointing out that it was New Labour’s criminal justice legislation which had driven up prison numbers while judges simply and faithfully applied the law as they must. As often on twitter, an interesting debate quickly descended into ridicule and abuse, albeit modest by the standards that prevail. I even got caught up in it myself. Having suggested to Adonis that the Sentencing Council – whose president and chair are senior judges-could have done more to limit prison growth since 2010, I retweeted his take that the Council “has followed the Daily Mail out of fear”. I was told by an Oxford academic that my retweet was fostering misunderstanding and I had an obligation to make clear that Adonis’s juvenile view was manifestly wrong.

Adonis may have been unfair on the Council, although it is arguable that of the matters to which they must have regard when producing guidelines, more attention has been paid to the need to promote public confidence than to the costs and effectiveness of sentences. Indeed I have argued this in a report for Transform Justice. But leaving to one side Adonis's combative and somewhat disdainful approach, what of his wider point. How culpable have the judiciary been in the matter of the spiralling prison population in England and Wales?

Mike Hough and colleagues’ detailed study of the 71% rise in the adult prison population from 36,000 in 1991 to 62,000 in 2003 found that tougher sentencing - longer prison sentences for serious crimes and more short prison sentences instead of community penalties -came about through the interplay of an increasingly punitive climate of political and media debate about punishment; legislative changes and new guideline judgements; and sentencers’ perceptions of changes in patterns of offending. So everyone’s to blame.

The study found that statistics did not lend support to sentencers’ beliefs that offenders were becoming more persistent, and committing more serious crimes, although more research was needed about that. Sentencers told researchers that they could resist pressures to ‘get tough’ from the media and the public, but at the same time, “they feel they have a duty to ensure their sentencing decisions reflect and reinforce the norms of wider society.”  It’s not clear where they learn about those norms but the study does not wholly vindicate the legal tweeters who held the judges wholly blameless for booming prison numbers.

Since 2003, it’s Adonis’s former colleagues in the Blair government who have a good deal to answer for.  David Blunkett’s monstrous IPP sentence was used far more than anticipated and new minimum tariffs for murder cases have hauled up the going rate for less lethal crimes of violence. While no doubt it’s the legislature in the dock for these prison boosting measures, could – and should- judges have done more to mitigate their baleful impact through more creative interpretation of the statutory provisions?  Discuss.


One lesson from all this is that Twitter is unlikely to be the best forum for resolving complex legal and constitutional problems. Another is that there’s something of a two nations divide between lawyers and the rest of us. Some in the legal profession, by no means all, seem disproportionately  touchy about criticism from outsiders. Those congratulating each other that their tweets had successfully “schooled” Adonis on his apparently uninformed barbs about the judiciary will I hope  be prepared to engage with the bigger questions he raises.  A proper debate about the roles and responsibilities of the legislature and judges in sentencing policy is long overdue.

Friday, 15 September 2017

Courting Trouble

There’s much of interest in the new Centre for Social Justice (CSJ) Report “What happened to the Rehabilitation Revolution? While the opening chapter’s title - “The recent history of disappointing progress”- grossly understates the scale of the current penal crisis, several of the initiatives proposed by Jonathan Aitken and John Samuels are surely prerequisites for resolving it.  Improving the numbers, training, status, pay and conditions of prison officers and fixing the failures of the remodelled probation service are now widely agreed to require urgent attention.  Ending the injustice faced by tariff expired IPP prisoners is also long overdue. If CSJ’s political connections can ensure further action in these areas, so much the better.

But what of the more controversial of the report’s ideas, in particular the expanded role it envisages for judges and magistrates.  CSJ propose that courts should monitor and review the sentences they impose, authorise recalls to prison for offenders in breach of their licence requirements, and hear applications both for early release from prison and for limitations on the impact of criminal records. John Samuels has been a longstanding champion of problem solving courts and is understandably frustrated at the mixed messages from government about their prospects.  But with tight budgets, court closures and digitisation, is the judiciary in any kind of position to take on these additional tasks? 

Despite some heroic cost benefit assumptions- based it has to be said on experience in the very different context in the USA-, there’s no doubt that increasing court lists would require something in the way of upfront funding. In his final annual report Lord Chief Justice Thomas wrote recently that “the just, effective and timely delivery of criminal justice remains of real concern to the judiciary”. Taking on more duties is hardly likely to alleviate such concerns.

There’s a broader question too about how far courts should become involved in the implementation of sentences.  There is a strong case for courts to decide whether people who don’t comply with probation conditions should be returned to jail. But there is a balance to be struck between judicial and executive responsibilities in the management of offenders. The continental system of penal execution judges may not be desirable let alone affordable in England and Wales.

Rather than invest in additional layers of judicial accountability, the government might do better to enable more cases to be kept out of court altogether.  In a forthcoming report for Transform Justice, I’ll be arguing that there is scope for diverting many more low level offenders.   Since 2010, the numbers of convictions and out of court disposals have both fallen sharply but while the former have gone down by 12%, the latter have declined by 47%.  Less than a fifth of cases were dealt with out of court last year compared to more than a quarter seven years ago.  Increasing numbers who appear in court get fines and discharges – 85% of summary offences and 30% of either way offences. Why not deal with some of these more cheaply and speedily without prosecution?  Re-offending rates are no worse and victims somewhat more satisfied. David Lammy’s report last week argued that greater use of suspended prosecution- along the lines of  Operation Turning Point in the West Midlands -could help to reverse the gross racial disproportionality that scars our system. But reviving diversion would benefit all.  


Suspended prosecution is in fact part of the government’s long term plan- seven years and counting in the making- for streamlining out of court disposals. But to work as intended, police and prosecutors will need to be able to point people at rehabilitative or restorative activities that can help them stay out of trouble – whether it’s cutting down on drinking, keeping their temper, or finding work.  Funding such approaches with funds released via fewer prosecutions is the way forward. Not problem solving courts but problem solving, out of court.  

Thursday, 24 August 2017

Why the Punitive (Re)Turn?

Why is the prison population increasing? Latest projections show numbers in custody are likely to increase by 1600 – at least one new prison’s worth – by 2022. The main reason is not that more and more people are being caught and punished for criminal offences. It’s that higher and higher proportions of those who are, nowadays receive custodial sentences. And their prison terms are getting longer. Both trends are confirmed in the latest criminal justice statistics. These show that it’s not only sexual and violent offenders who are facing tougher sanctions in court. Less than a quarter of people convicted for theft in 2010 went to jail but last year it was almost 30%. Average prison terms as a whole have gone up from 13.7 to 16.6 months over the last seven years.

It’s possible that courts are seeing more serious cases or more prolific offenders than before. That’s difficult to know in the absence of detailed research. But the halving of the cautioning rate – the proportion of offenders who were either cautioned or convicted who received a caution- suggest that many more low level cases came to court in 2016 than 2010.

There are other more likely explanations for this new punitive turn. The dismantling of the probation service may have made non-custodial sentences it supervises less attractive to judges and magistrates. Since 2010 the proportion of indictable only crimes- the most serious- dealt with by a community order or suspended sentence fell from a quarter to a fifth. For either way offences, market share for these two disposals fell from 42% to 37%.

Another culprit may be the Sentencing Council. A recent analysis has found that the guideline it produced on burglary offences in 2011 may have inadvertently encouraged courts to deal more severely with all types of breaking and entering. Although the Council did not intend to inflate the going rate, expanding the definition of the loss to the victim in such cases and creating a long list of factors signalling greater culpability by the offender seems to have pushed courts to punish offences more harshly than before.   As I argued in a report for Transform Justice last year, the Council has not only failed to curb the growth in imprisonment-its original purpose. It may have made matters worse.

A poll published this week confirmed what has long been known- that the public is much less punitive than is often supposed. Asked what they believe would be most effective in cutting crime, more police on the streets, better parenting, greater discipline in schools and better rehabilitation all score highest. Just 7% of the public think the answer is more people in prison.  Yet without some bold policy making in the Ministry of Justice, that’s just what we are going to get.

    

Wednesday, 2 August 2017

Fired Up about Prison Reform

It’s less than 18 months since David Cameron cast prison reform as “a great progressive cause in British politics”. His vision was for “the leadership team of a prison to be highly-motivated, to be entrepreneurial and to be fired up about their work”. The President of the Prison Governors Association is certainly fired up alright but less with enthusiasm than exasperation. I can’t recall such a broadside being delivered by a public servant to her bosses- nor one that is so (almost) wholly justified- as that which was delivered by Andrea Albutt today.

Cameron’s hubristic vision of a modern, more effective, truly 21st century prison system looks as far away as ever. The levels of violence, drug-taking and self-harm which he thought should shame us all in February 2016 have continued to soar.

So what’s gone wrong? Three things. First was the failure- wilful or otherwise - to see the severity of the impact which budget reductions would make on the stability of prisons.  There was never really a “Golden Years pre austerity” as Andrea Albutt has put it. But all too often, “too great a degree of tolerance of poor standards and of risk” as Robert Francis QC said of Mid Staffordshire NHS Trust. Such a tolerance was one of the reasons why numerous warning signs did not alert the health system to developing problems in Mid Staffs. The same is true of many prisons which were never truly stable enough to withstand the level of cutbacks, particularly when Ken Clarke’s efforts to reduce the population were shelved.   

Second the government applied a formula approach to reform which ignored some of the distinctive challenges of prisons. Cameron promised to "bring the academies model that has revolutionised our schools to the prisons system". It was a mistake. An approach is needed that recognises that individual prisons cannot float free in the same way as schools and their customers have no choice over which establishment they attend. Given the risk averseness of government, whatever ministers may say, innovation is always likely to be closely controlled from the centre. The so called empowerment agenda has, says Andrea Albutt, yet to gain any traction, with governors now accounting both to their headquarters and the Ministry- the result of a ‘perverse’ severance of policy from operations which has so far added cost but little benefit.

Third there has been an optimism bias about the reform agenda. I’m not sure whether Maslow’s hierarchy of needs is still in vogue, but it should have been obvious that without safety and security, loftier ambitions about rehabilitation have no chance of success, however flowery the rhetoric. Too many stakeholders have been taken for a ride. The National Audit Office for example, will presumably look back with some embarrassment on their 2013 assessment that "the strategy for the prison estate is the most coherent and comprehensive for many years, has quickly cut operating costs, and is a significant improvement in value for money on the approaches of the past". Their view that the Ministry of Justice make good use of forecasts of prisoner numbers and have good contingency plans is flatly contradicted by the PGA’s view that the recent rise in the population, unforeseen by the statisticians in MOJ, has left virtually no headroom in prison spaces.

So what to do? First to stabilise the population, create that headroom and make a dent on overcrowding, some kind of early release scheme should be introduced while longer term plans to reduce the population are put in place. There’s no shortage of ways of doing that -only a shortage of political courage to do so. The new Secretary of State for Justice needs to show that. 


Second, some structural changes. Shifting responsibility for juveniles out of the MOJ and prisons into the education ministry; a Youth Justice Board for young adults, a new body to deliver alternative accommodation for elderly prisoners. Devolving financial responsibilities for prisons to local areas.  They won’t produce quick fixes but could help take the pressure off an overburdened prison system in the medium to long term. 

Finally, capable prison governors working in Whitehall should be returned to the front line and experienced staff who have left the service in the last five years lured back into it whatever it takes. Plans to recruit more and better qualified staff are promising but will take time the service has not got.  Some of the capital resources intended to build new prisons should be converted to revenue to pay for staff .There is growing scepticism that the £1.3 billion secured from the Treasury for new prisons can be spent by 2020. Some of it should be used to repair the current arrangements rather than establishing new ones.

In less than three months, the largest annual gathering of international prison professionals takes place in London for a week of discussions about “Innovation in Rehabilitation: Building Better Futures”. Its focus is on improving outcomes for prisoners. But that won’t happen unless they are improved for prisons first.