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. 

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.