Wednesday, 7 February 2018

The Parole Board's Day in Court

A big day for the Parole Board in the High Court and in Parliament . Judges will decide whether there is a case for a judicial review of the Board’s decision to release John Worboys while the Justice Committee holds a one off hearing about the transparency of  Board decisions and involvement of victims in the process. Lets hope that in the hue and cry for something to be done, the courts and MPs will not rush to judgment about the way an important institution should do its work.

Much ire has been focussed on the rule that parole proceedings must not be made public. While the case for increased transparency seems to have been accepted without question, there now comes the difficult matter of deciding what information should be put in the public domain. If the Board starts to provide explanations for its decisions in every case, how much information will they place in the public domain? Where a prisoner will live? Their family circumstances? The local community’s attitude towards the prisoner? This is information the Board considers when reaching a decision but its arguable how much should responsibly be shared. A summary of the reasoning behind each Parole Board decision seems to be favoured but steering a line between formulaic cut and paste generalities and “too much information” - some of it of a highly personal nature-will be hard. A decision will need to be made too about whether the names of the Parole Board members making decisions be published.

The media will no doubt press for access to Parole hearings and the case for that may be hard to resist. But the government will need to consider whether this might adversely impact on the participation of prisoners -and indeed victims -in the process.

It is these kind of unintended consequences that need guarding against. If the Board is forced down the road of publishing its reasons, it will become much more commonplace for those to be challenged. Perhaps that’s a good thing but the consequence may be more conservative decision making and more cost all round.

What must be avoided at all costs is the kind of system that developed in the USA in the 1970’s. Repeated parole rejections for prisoners who were not thought ready to be released And when they were ready, further rejection because they simply hadn’t done enough time. There’s more than a whiff of the latter point in much of the discussion about Worboys.

Thursday, 25 January 2018

Hercules or Sisyphus? The Task Facing New Prisons Minister Rory Stewart

There’s been reassurance from the Prisons Minister at the House of Commons Justice Committee. In struggling prisons, the most significant facilities management issues are checked up on in Whitehall every week. Although “heavily operational, it’s “all important to delivering a decent regime, and we are getting to that level of detail to make sure this works”.

This isn’t the back to basics approach announced on Wednesday by new minister Rory Stewart but the evidence given by his predecessor Sam Gyimah back in  November 2016.  Given that the squalid living conditions endured by many prisoners at HMP Liverpool – the subject of the latest  hearing- somehow escaped Mr Gyimah’s detailed attentions, it’s not unreasonable to ask whether Mr Stewart will do any better. Reformers are born optimists so let’s hope so. Good for him for taking responsibility for sorting out the prison crisis and offering  to be judged on the results.  
 More and more Inspection reports have revealed the scale of the challenge in creating the “modern, more effective, truly twenty-first century prison system” promised by David Cameron. The reality is that it will take a year to repair or replace the cell windows at Liverpool- and that’s if the Prison’s Action Plan is actually followed, unlike the one produced after a 2015 inspection.

Stewart is right to say that the recommendations made by inspectors should drive reform agendas in establishments. He could have added that Independent Monitoring Boards' and Ombudsman's findings deserve greater attention as well- the former in particular as they produce much more frequent reports.  And he’s thinking about whether the Inspectorate itself should be bolstered so it can follow up on itself on the problems it identifies. But is he right about how to achieve change in prisons?

The local failures at Liverpool appear to cast doubt on the idea of giving Governors more and more autonomy but Stewart is fully signed up to the idea. At least twice he used military analogies in describing the prison service. Governors, like Colonels should be left to run their own show under the watchful gaze of Brigadiers who intervene when things go wrong. It’s not an altogether comfortable comparison. Prison staff are not soldiers fighting an enemy. There are plenty of other institutions- schools, colleges, hospitals, which can provide better models for much of what the prison service should be doing. There is always a risk that security, control and justice get out of kilter in a prison. The Committee heard that bosses were so concerned about security following an escape at Liverpool, they ignored mounting piles of rubbish, vermin infestations and degrading cell conditions.

Stewart was dismissive too of grand concerns about sentencing and other abstract policy questions which he thinks have distracted attention from the day to day problems in prisons.  Here he is wrong. As the Council of Europe 's anti torture watchdog has reported following their 2016 visit to the UK, the implementation of the prison reform programme will be unattainable without concrete steps to significantly reduce the current prison population. The Government’s response, published this week? They do not propose to set arbitrary targets for reducing the prison population, but to achieve it via a combination of early intervention upstream and on reducing reoffending after release for those who are sentenced to immediate custody.

Disappointing though that may be, even these modest strategies require a genuine policy commitment from housing, healthcare, education, business and local government. Stewart‘s job is to negotiate that as well as fixing broken windows. Unless he and colleagues find some way to cut prison numbers his task will not be that of Hercules but of Sisyphus.   

Saturday, 20 January 2018

Prisons- Solution to Crime or Part of the Problem?

“Prison can become a ripe place for criminal education, serious and organised crime, and radicalisation, rather than rehabilitation”.  Not the words of the Howard League, or Prison Reform Trust but, surprising as it may be, of Chief Constables.  The National Police Chiefs Council’s (NPCC) latest strategy on charging and out of court disposals shows how positive interventions with offenders and victims can be effective alternatives to prosecution or even prison sentences. The Police are right of course. The surprise is only how long it’s taking for a consensus to emerge that the epidemic of drugs, violence and debt within prisons makes them part of the crime problem and seldom the solution to it.  

The NPCC strategy echoes much in Transform Justice’s 2017 report “Less is More” which highlighted the declining trend in the use of out of court disposals to deal with low level offending and made recommendations about how to reverse it. As the Police Chiefs say “anything which can be done to prevent reoffending and increase victim satisfaction is vitally important.” What they call "a whole systems approach" is needed to tackle the mental health, alcohol and drug problems which underpin so much offending behaviour.

The strategy provides an opportunity to breathe fresh life into the moribund “rehabilitation revolution”. Not however in prisons struggling to provide basic and decent care. Or in a probation system on the verge of going bust. But in what the NPCC call early intervention pathways. Conditional out of court disposals, it claims, “can provide rehabilitative opportunities without the significant cost of court time”. There’s an emerging body of evidence to support that claim, from pilot projects in the West Midlands, Durham and Hampshire.  And a good case for working particularly hard to keep certain types of offender out of court and out of jail. In addition to children under 18 for whom diversion has long played a central role, the strategy argues for more alternatives to prosecution for women, young adults and military veterans. As the strategy says, “prison can be a place where there is exposure to more hardened and accomplished criminals.”

The case for diversion is arguably strengthened too by another round of court closures in the offing. Victims and offenders require speedy, local mechanisms for resolving low level incidents. And the police need to free up their investigative capacity to deal with the most serious harms and threats including terrorism, and sexual crime.

The NPCC points out that there’s no new funding for rehabilitation courses or treatment programmes  so forces will implement the strategy “when it is operationally and financially viable”. On resourcing, Transform Justice recommended a justice reinvestment approach which uses the savings diversion brings to police, prosecutors and courts to fund local programmes designed to further reduce crime and prevent offending.  But some up front funds will be needed to kick start the process- from the Home Office, PCC's and MoJ.

Reducing demand on the courts should form part of a wide ranging new approach to people in conflict with the law. The Sentencing Council should be recalibrating the going rate for certain offences to address the inflation in sentence length that has taken place in recent years.

It’s both right and necessary that prison numbers are brought down.  The Justice Committee has commenced an inquiry into the subject.  New ministers at the Justice Department should do so as well, looking at all the levers at their disposal to make the system of criminal justice in England and Wales more effective and sustainable. 

Monday, 8 January 2018

Parole Reviews

In the wake of their decision to order the release of convicted sex offender John Worboys, the Parole Board, it seems, will be reviewed. But what exactly will be looked at? Will the review focus, as the Guardian reports, on “how the Parole Board makes its decisions” , leading to “a system overhaul”? Or is it a narrower look at how decisions, once made, are communicated to the public. Whatever its scope, the review will be following on three recent exercises designed to improve the Board’s work.

Making the parole process more transparent was one of the aims of “a comprehensive review of the generic parole process for indeterminate sentence prisoners” undertaken by the Board itself in 2013. One of the proposals was to “improve communications with victims to ensure that they are provided with timely notification of Parole Board decisions, and dates of release or transfer to open conditions where applicable, together with an agreed format i.e. telephone call, email, letter, third party”. Following consultation it was decided that “this proposal will be implemented but actual dates of release will not be communicated to victims”. Given the alleged failure to inform victims about the Worboys decision, - whether this was the responsibility of the Parole Board or the National Probation Service, the new review will probably want to look at this whole area again.

Two years later, the Cabinet Office published a review of the Parole Board as part of its regular scrutiny of arm’s length bodies.  Its 2015 report made one recommendation “to heighten the transparency and openness of the Parole Board, while recognising the nature of its business is at times confidential”. This was that the Board hold an annual open meeting. There have been two such meetings since, but these are not hearings which discuss cases but “an opportunity to see the work that goes on behind the scenes to ensure effective running of the parole system”.  It’s possible that a further one of these so called triennial reviews will be started this year but it won't have the right pace or focus  to meet the demands of the post Worboys moment.  

1n 2016, the rules governing the way the Parole Board works were revised by the Ministry of Justice after the identification by Parliament of defects in the 2011 version. MP’s were involved in approving the new rules which include the provision that parole proceedings must not be made public. But the “negative resolution” approval procedure made it virtually impossible for any MP to challenge this had they wished to. In fact the limit on the disclosure of information about parole was nothing new – it was already in place in the 2011 rules approved by Parliament and in the previous Home Office rules from 2004. The Justice Committee will be looking at the Worboys case but should Parliament should be exercising greater ongoing scrutiny both over the work of the Board and the adequacy of the legal framework governing it?  

Justice Secretary David Lidington has said that his new review will focus on how to allow greater openness about the parole decision-making process and make sure arrangements across the criminal justice system ensure victims are heard. Both are fraught with difficulty.

While the Worboys case is thankfully unusual, it raises some difficult questions particularly about the involvement of victims in the parole process.  How far should or could the right of victims to be informed about cases extend beyond those individuals whose cases led to conviction? Should others, thought to be his victims have been notified in some way about his release? To what extent should the Parole Board have taken into account these additional cases in assessing the risk Worboys poses in the future? How, practically, could they have done  so?  

There are more general issues. As things stand, a victim of crime can provide a statement to the Board and attend an oral hearing to read it if they wish, leaving after they do so.  One thing they cannot say is whether they think the prisoner should be released- and if they do the Board must disregard it. It’s absolutely right that the Board’s focus is on the current and future risk posed by the offender but restricting victims participation doesn’t sit easily with the commitment that they “are heard”.

There are difficult questions too about greater openness. If the Board starts to provide explanations for its decisions, how much information will they place in the public domain? Where a prisoner will live? Their family circumstances? The local community’s attitude towards the prisoner? This is information the Board considers when reaching a decision but its arguable how much should responsibly be shared. Any consideration of increased media access to Parole hearings will need to reflect on the attendance of the press and reporting on proceedings might adversely impact on the participation of prisoners -and indeed victims -in the process.

To his credit, Parole Board Chair Nick Hardwick has already recognised both the case for greater openness and the complexities involved. “So”, he told a conference in November “nothing is going to happen quickly and these are all matters that we need to consider and consult on carefully”.  Following Worboys, his boss has said that decisions will be taken by Easter. Let’s hope it’s not a question of legislating in haste and repenting at leisure.

Saturday, 23 December 2017

A Right Royal Scandal

I don’t know whether protocol requires the Queen to be told when her name is attached to a new organisation or when it is, whether she asks, now and again, how it’s getting along. Probably best not in the case of Her Majesty’s Prison and Probation Service (HMPPS) which replaced the National Offender Management Service in April. For as the year ends, the arrangements for both custodial and community based supervision are in deep trouble, with precious few signs of imminent recovery.

This week’s leaked report of the worst prison conditions ever encountered by inspectors casts serious doubt on Justice Secretary David Lidington’s claim that his government’s reform efforts are now making a difference. Probation’s teething problems have been replaced by difficulties of an altogether more deep rooted variety.  Why is it taking so long to fix this current penal crisis?

For one thing, the political energy has fizzled out of reform. When Brexit sank Cameron, down went prison reform as a great progressive cause, falling further still when plans for legislation were junked after this year’s election. Given the tsunami of violence and self-harm engulfing particularly local prisons, it’s all to the good that grandiose rhetoric made way for practical steps to replace recklessly reduced staff numbers and tackle the everyday misery in the cells and on the landings.

But we need an ambition which goes beyond stabilising the situation on the ground. As the European anti torture watch dog, the CPT, told the UK government this year “unless determined action is taken to significantly reduce the current prison population, the regime improvements envisaged by the authorities’ reform agenda will remain unattainable”

Political courage is therefore needed to stem sentence inflation, invest in constructive regimes and allow for earlier release.  Instead we’ve seen a raising of maximum sentences and more offences made eligible for increase if they’re found to be unduly lenient. Here’s a suggestion; if it is deemed necessary to raise a maximum sentence – as is the case with animal cruelty – then lower the upper limit for something else- perhaps theft from 7 years to 5, or possession of a class C drug from 2 years to 6 months. There’s no need for ever longer sentences and the system can’t cope with them.

At a technical level, there are growing questions about whether services are being provided by HMPPS in the best way. It’s now increasingly accepted that the two tier probation system is the predicted unholy mess incapable of delivering success. But given the operational crisis in prisons, is the Academy model the right way to go?  At Holme House, one of the Pathfinder Reform Prisons, inspectors found this summer a significant deterioration in outcomes since 2013 and a big gap between aspiration and the day-to-day reality. At many jails, inspectors have called for much more in the way of support from the centre not less.   At Liverpool’s Walton jail, managers had sought help from regional and national management to improve conditions they knew to be unacceptable long before the inspectors arrived- but had met with little response.  There’s a lot to be said for empowering governors but nothing for leaving them to fend for themselves in a time of crisis.  

Nor is there merit in prisons having freedom to ignore the recommendations for improvement made by the bodies which monitor them. In 2016-7, Inspectors found fewer of the recommendations that they’d previously made were achieved than not. True they can now call out the worst problems immediately they see them, but the long awaited protocol containing this Urgent Notification Process is a missed opportunity to require a proper public response to all of the findings they make. A prison should accept them and act- or reject them and say why. This might prevent the neglect of cells at Walton which ministers claim have had no money spent on them since 1994. Better too if the recommendations of the Prisons and Probation Ombudsman (PPO) and Independent Monitoring Boards are treated in the same way.

Alongside political ambivalence and administrative weaknesses, there still lies a huge resource shortfall. We’re endlessly told the target for 2500 new staff is being met and of course additional officers are helping to ease the worst problems. But its not enough. As the IMB at Bristol reported, “new recruits are being thrown in at the deep end and having to shadow experienced members of staff in firefighting mode rather than with time to train staff more comprehensively”.  Crisis management is the new normal. We’ re told less about the 10,000 new prison places promised by 2020 – and even less about the old prisons they’ll replace- if indeed they will.

10 years ago the Queen famously asked academics at the LSE why no one saw the financial crash coming. She might reasonably ask the same question about the prison and probation crisis, and more importantly now, whether enough is being done to fix it. She might suggest one of her Commissions might be able to help- perhaps a Royal Commission on the use and practice of imprisonment in England and Wales.

Largely out of fashion and open to the criticism of "taking minutes and wasting years," Royal Commissions can nevertheless  play an important role in charting a way forward in respect of deep seated, controversial and intractable issues. Penal policy and provision tick all of those boxes . The CPT recalled in their report this year that  "the adverse effects of overcrowding and lack of purposeful regime have been repeatedly highlighted by the Committee since 1990". Could 2018 be the year to start to bring the scandal to an end?

Thursday, 14 December 2017

Probation- The Shape of Things to Come?

The Chief Inspector of Probation's Annual Report published today may not be the nail in the coffin of Transforming Rehabilitation – the 2014 reforms which have fundamentally changed the way offenders are supervised in the community. But it probably marks the start of the reading of the last rites for an ill conceived and hastily implemented programme designed, but failing, to improve the punishment and reform of offenders.

In one sense there’s little new in the report. The media focus may be on the tens of thousands of low risk offenders supervised via a short six weekly phone call but the new system’s many other shortcomings, particularly those of the privately owned Community Rehabilitation Companies (CRCs) have already been highlighted in individual inspection reports. Whether it’s individuals turned away from poorly organised unpaid work sites, rehabilitation programmes requiring little of offenders, or the supposed flagship “Through the Gate" services reduced to little more than form filling, the aggregate picture is not pretty. It not only bitterly disappoints those of us who want to see effective community sentences replace the unnecessary and damaging use of prison. It confirms the worst fears of hard liners who argue that probation puts the public in danger by failing to assess and manage risks properly.

There are oases of good CRC practice noted in Kent, Cumbria, South Yorkshire, West Mercia and Durham- and the publicly run National Probation Service (NPS) seems to be doing an acceptable job. But the titbits of praise in the report are seldom unqualified. Courts might be getting timely pre-sentence reports from the NPS but recommendations for suitable people to undertake accredited treatment programmes as part of their community sentence have plummeted. Contrary to what’s sometimes thought, probation staff are not over-eager to return non-compliant offenders to court and most breach decisions are taken wisely. The problem is the reverse with  case management so weak that  CRCs "may not know when enforcement is called for". 

All in all, 18 months’ worth of data has left Chief Inspector Dame Glenys Stacey with no option but to conclude, as was widely predicted at the outset, that “regrettably none of the government’s stated aspirations for Transforming Rehabilitation have been met in any meaningful way”.

What is new is that Dame Glenys today openly questions “whether the current model for probation can deliver sufficiently well”. It’s one thing to find fault with the performance of probation services up and down the country- but quite another to call into question whether the fundamental way those services have been arranged is fit for purpose. Implicitly or explicitly, the report blasts the split between the NPS and CRCs which sees organisations compete for staff and haggle over the provision of and payments for specialist services for offenders; and the funding model which has left CRCs  with way less cash than they anticipated, forcing them to pare down staff numbers repeatedly and leaving some remaining junior staff with caseloads of 200 plus. She is certainly worried that the sweeping aside of national standards in the name of innovation has allowed not only large amounts of remote supervision but some face to face  interviews to be conducted in places lacking privacy. Dame Glenys must wonder too about the way that the performance monitoring framework developed by Her Majesty’s Prison and Probation Service gives the debacle the Inspectorate describes a largely clean bill of health.

In truth, this quietly devastating report makes it clear that all of these dimensions need to be changed.  And knowingly or not, it may suggest how. In their 140 odd Youth Justice Inspections, the Inspectorate found  that  Youth Offending Teams (YOTs) perform to a good level and  "can be rightly proud of the work they do". These local authority based multi-agency teams, developed in Tony Blair’s first term, partly in response to a damning critique from the Audit Commission, have by and large proved an effective model for diverting young people from crime, from prosecution and from custody. 

This is surely the sort of approach we now need for adults. There’s scope for discussion about the role Police and Crime Commissioners might play in any new system and whether Adult Offending Teams should form part of a broader devolution of justice responsibilities and budgets to a more local, and locally accountable, level. But we have plenty of time to have that discussion.

The current probation arrangements may have to limp on for three years but there is nothing to prevent serious work on succession arrangements to begin next year. Justice Secretary David Lidington should establish some form of inquiry or commission to look dispassionately at what to do next.   He may want to see what the Justice Committee comes up with in its investigation first.  But one thing is certain. The future shape of probation services must not be driven by the ideological dogmas which have brought them down to the sorry level we see today.

Thursday, 7 December 2017

Why Less is More- The Case for Dealing with Offences Out of Court

With mounting pressure on police and justice budgets across the country, it’s surprising that recent years have seen a large decline in the use of out of court disposals to deal with low level offending. Simple or Conditional Cautions, Penalty Notices, Community Resolutions and Drug Warnings can offer a quicker, simpler and more effective  response than a prosecution.  But more than half of first time offenders now go to court rather than receive a caution, compared to 1 in 5 ten years ago. A new report published by Transform Justice –   Less is more- the case for dealing with offences out of court- says it’s high time to reverse that trend.    

It’s true that not everyone’s a fan of diversion. Some judges, magistrates and lawyers think offenders may accept a caution when they are not guilty or do not understand they will get a criminal record. Others complain diversion’s got out of hand with too many serious offences or persistent offenders getting little more than a slap on the wrist instead of being taken to court. Today’s report, however, shows that almost half a million convictions last year resulted in low level penalties such as fines or discharges. Unlike some diversion measures, such sentences do nothing to rehabilitate offenders or compensate victims.

Politicians may think it plays well with the public to promise an end to the “cautions culture”- former Justice Secretary Chris Grayling did so back in 2014. But on grounds of efficiency, effectiveness and economy, as long as there are proper safeguards there’s a strong case for extending not shrinking the availability of options for dealing with crime outside court.

As well as legislating to limit the use of diversion for serious and repeat offenders, Governments since 2010 have developed a policy intention to replace the existing range of out of court disposals with just two - a community resolution or a conditional caution. Three police forces have been piloting this two tier system and, while an evaluation is yet to be published, change will be needed if diversion is to fulfil its potential. 

The most important is the need to fund a suitable range of treatment options so that where necessary petty criminals can be helped to solve the underlying problems which so often drive their offending. Pilot programmes such as Operation Turning Point (OTP) in the West Midlands and Checkpoint in Durham have shown that rehabilitation can work at this stage in the criminal justice process.  And it’s affordable. OTP achieved a saving of around £1,000 per case, including all of the costs of the intervention programmes. This suggests the potential for diversion arrangements can kick start a justice reinvestment approach which uses the savings diversion brings to police, prosecutors and courts to fund local programmes designed to further reduce crime and prevent offending.

There’s a case too for extending the approach to diverting children away from the courts to young adults, so that they are given a greater opportunity to grow out of crime. South Wales Police have adopted this approach with promising results.

If there’s to be more in the way of diversion, local arrangements will need to enjoy public confidence. Most police forces have established scrutiny panels to keep an eye on the kinds of offenders getting out of court disposals and what they are being required to do in terms of rehabilitation and reparation.  Work needs doing to identify the best models for holding police forces to account for their decision-making. The Transform Justice report proposes that panels should ask not only if cases dealt with out of court should have been prosecuted – but also whether court cases leading to nominal penalties would have been better diverted. 

Six years ago the Police Inspectorate argued that  the expression ‘out-of-court disposals’ perpetuates a sense that they are much less important than a disposal in court – in effect a soft option.  Today’s Transform Justice Report concludes by calling on Government ministers and criminal justice stakeholders to communicate the positive advantages of measures out of court  and make efforts to show their benefits.  Rather than railing against an imaginary cautions culture, ministers should be promoting a culture of cost effectiveness – and that includes a greater not a lesser role for diversion.