Capacity Assessment

 

If the Independent Review of Prison Capacity was designed to remind the public how badly the last government managed the penal system, it’s probably succeeded. Will it help the current and future governments do much better? I’m not so sure.

Like Gauke’s review of sentencing and Leveson’s on the courts, Dame Anne Owers final report  in the trilogy is stronger on diagnosing the problems than prescribing remedies. An independent advisory body for the system, a ten year strategy to develop probation and an evaluation of the prison service may help- or just deliver more talking heads.

Much more promising are the proposals for local multi-disciplinary management of offenders, modelled on youth justice; and improved addiction, health, housing, and employment services.

But they’ll need money. I’d like to have seen a recommendation that these approaches could be resourced from some of the billions earmarked for prison expansion on the basis that they will reduce the requirement for it. Could the time be ripe to revive the idea of Justice Reinvestment ? Alongside some new prison places we surely need more hostels and halfway houses, secure hospital beds and residential drug treatment- institutional measures that can act as effective alternatives to custody.   

There are two other concrete recommendations I’d also have liked to see. First that the Sentencing Council plays an enhanced role in balancing supply and demand for prison places.

The Council reports each year on how changing sentencing practice impacts on prison, probation and youth justice services; and on how “non-sentencing factors” such as the numbers in court, and release and recall decisions affect the resources needed to implement sentences. This has been a watchdog that never barked if ever there was one. It should be urged to use its vocal chords and even be given some teeth. It gets no mention in the Capacity Review.   

Second, the Review could propose more to limit the use of custodial remand. Oddly Anne Owers says those remanded to prison were looked at by the Gauke Sentencing Review. They weren’t.  Leveson looked at remand a bit and may return to it in the second part of his review on Court Efficiency. His first report says he was looking forward to what the Capacity Review had to say on the topic. He may be disappointed.

While Anne Owers rightly notes “the very lengthy periods…prisoners are now spending on remand has had an extremely detrimental impact on them (as well as on prisons)”, there is no recommendation about how to address the problem.  There is a suggestion that more alternatives could be considered but something more specific is needed- a tightening of the Bail Act and guidelines for Magistrates and Judges for example. The whole subject has fallen between the gaps of the three reviews.

A trilogy originally referred to three related tragedies. Whether the mismanagement of criminal justice in recent years amounts to a tragedy I don’t know, but it certainly needs urgent action to put right.

I’d thought the post- Gauke Sentencing Bill would have been published before the Summer Recess but although most of its recommendations have been accepted, I hear that getting Ministers to make detailed decisions isn’t easy. The Bill’s now expected next month.  The response to Leveson’s first review will be in the autumn but there is no timetable given for a response to the Capacity Review.  

While the prison place emergency the government faced last year may have eased, there is no excuse in delaying the delivery of a more effective and sustainable system.

 

Groundhog Week for Youth Custody

 

It’s Groundhog Week for  youth custody, as the Justice Secretary is told today to take urgent action to improve Oakhill Secure Training Centre (STC) where inspectors have found serious and systemic failures putting children there at risk of harm. On Monday, inspectors reported that only a third of children at Werrington Young Offender Institution felt cared for by staff with most spending too long locked up and not getting enough education.  

The Oakhill failings are particularly troubling, the latest in a long line of crises to engulf STCs over the last 30 years- and the second time Oakhill itself has been subject to an Urgent Notification. Four years ago it “barely met minimum standards of human decency” and despite some short lived improvements it’s back in a shocking state- unsanitary conditions, unresponsive healthcare, inappropriate use of separation and restraint and safeguarding in disarray.

Perhaps the most worrying part of the Ofsted Chief Inspector’s letter to Shabana Mahmood is the revelation that the Director of the G4S run centre and one of the deputy directors were formally suspended from their duties earlier this month and the other deputy director was recently fired.

30 other staff have been suspended in the last eight months, most because of concerns about “conduct with children”.  All of the 18 investigations completed have led to “various managerial actions including dismissals”. Some staff facing serious allegations have been allowed to continue to work with children. Staff convey a culture of fear, mistrust and reprisal, with some saying they have been left feeling unsafe while working alone on a unit.

Ministers should be worried too that the Youth Custody Service (YCS) -responsible for contractual management of private sector sites- has failed “to identify and/or take sufficient action to help safeguard children and to ensure that children receive good quality care”.  After the first Urgent Notification, in 2022 YCS assessed that despite limited improvements in G4S’s management of Oakhill STC, “there remained a risk that these improvements may not prove sustainable”. YCS should therefore have been much more on the case since then.

So what is to be done? It’s almost nine years since the then government agreed that Young Offender Institutions (YOIs) and STCs should be replaced in the longer term by smaller secure schools situated in the regions that they serve. Since then one Secure School finally got off the ground last year. It’s progress has been disappointing- an inspection coincidentally out today finds it needs improvement to be good.

Oasis Restore is not yet delivering good help and care for children and young people- and it’s of concern that the effectiveness of leaders and managers there is rated as inadequate. However, “there are no serious or widespread failures that result in children’s welfare not being safeguarded or promoted”, unlike at Oakhill.  Such failures tend to be even less common in Secure Childrens Homes, whose capacity in my view should have been expanded instead of creating the Secure School. But we are where we are. That doesn’t mean we have to stay here forever.

The Oakhill contract runs until 2029 and would probably cost too much to end early. But that could and should be the target date for the government to remove children from YOI’s and STC’s using Secure Children’s Homes and Secure Schools instead.  

Catching Fire

 

Quietly published last month was the latest annual report of the Crown Premises Fire Safety Inspectorate, (CPFSI) the body which enforces fire safety legislation in most government buildings including prisons. It’s long overdue, covering the financial year to March 2024- and it’s troubling.

The year 2023-24 saw one prisoner die as a result of fire – the fourth since 2019- with 16 suffering major injuries such as serious burns or severe smoke inhalation.  Across the estate 19 more, and 21 prison staff suffered minor injuries with well over 500 other individuals in prisons given precautionary medical assessments following their involvement with fire. The number of people affected by prison fires rose in line with the increase in fires. The CPFSI report says there were 2,477 fires in 2023-4 up 74% from the previous year.  Data for the calendar year 2024 suggests a continuing rise through last year with almost 3,000 cell fires.

CPFSI Chief Inspector Peter Holland reports that 95% of prison fires are started deliberately and the significant increase is mainly due to the misuse of both vapes and electrical equipment by prisoners. Vapes were responsible for causing two thirds of prison fires, with mishandling of non-faulty electrical wiring causing a further 12%. Holland says there’s a need for improved compliance with the Fire Safety Legislation “and further concerted action to reduce the frequency and impact of fires”.

So what is the Prison Service doing? Fire safety is ostensibly a high priority, governed by a detailed Prison Service Instruction. HMPPS has recently achieved conformity with the British Standard for Fire Risk Managment Systems.

On primary prevention, a new ‘Moja’ vape pen is being introduced with a battery cell welded directly to the circuit  board, preventing rewiring and misuse of the heating element. In April, trials involving 1,138 prisoners were underway at HMP Swaleside and HMP The Mount, with five additional prisons due to join last month. It’s been reported the new safer pens will be rolled out to all prisons by October although this looks ambitious to me.

There have been local initiatives too. In the three Leeds prisons, cell fires reportedly reduced when prisoners’ property was subsequently removed for decontamination or destruction - though many fires are still started by new arrivals who do not yet have enough personal property to deter them. More positively, fire crews have been working with respected members of the prisoner population at HMP Wealstun on the risks of cell fires so they can help deter newcomers during their induction period.

In West Yorkshire a new Incident Reporting Form has been created to try to increase the use of prosecution following cell fires. The Fire Service say there have been instances in the UK where up to two years were added to a sentence, which could serve as a powerful deterrent. It’s not clear that tougher punishment will work. The CPFSI report says “inmates start fires for numerous reasons: challenging prison regimes, conflicts with other prisoners and staff, and to inflict harm”. Current CPS guidance says that a cell fire may be an attempt to commit self-harm, and these cases should not normally be referred by the prison to the police.

As for responding to fires, HMPPS has a major fire safety improvement programme which aims to bring all cells up to standard by the end of 2027 through automatic fire detection and suppression measures. MPs on the Public Accounts Committee (PAC) concluded earlier this year that the deadline won’t be met, in part because of the collapse of construction company ISG. Whether the red line commitment not to use non-compliant cells after that date will be maintained presumably depends on population pressures at the time. PAC have asked the MoJ how they plan to meet the maintenance backlog in prisons more broadly. The latest MoJ delivery plan includes making more cells fire safety compliant but not where and when.

One urgent priority must be to ensure that prisons comply with enforcement or alterations notices served by CPFSI. The latest list  includes notices in force on two public and two private prisons, but the list is incomplete. I know of one other prison served with an enforcement notice and am seeking information about any others.

CPFSI has recently been moved from the Home Office into the Ministry of Housing, Communities and Local Government. I hope this will stimulate a more urgent and comprehensive approach to the oversight of fire safety in prisons. Neither Independent Monitoring Boards nor the Prison Inspectorate look systematically at fire safety during their visits to prisons. I was surprised to learn that the latter no longer has a formal protocol in place with CPFSI about the sharing of information. They should agree one in my view.

Ex abundanti cautela

 

  

When I worked in the Home Office thirty years ago, my boss, a former barrister, was fond of bandying around Latin legal tags. His comments on my draft submissions to ministers often included the principle of being on the safe side.    

This certainly seems the approach the Sentencing Council has adopted in response to the new law on sentencing guidelines and pre-sentence reports (PSRs).  It has not only paused the new guideline that led to the rumpus – a revised version of the “Imposition of community and custodial sentences” will now come into effect on 1^st September.  The Council has also amended a number of existing guidelines with immediate effect. They say they’ve done so “to be confident that all sentencing guidelines comply with the new legislation”.

But have they gone further than they need to?

The revised version of the Imposition guideline has of course removed what were considered the offending paragraphs about the cohorts for whom a PSR would normally be considered necessary. While neither young adults nor women are mentioned specifically in the new law, courts will no longer be advised that when considering a custodial or community sentence for them they should normally ask the Probation Service for a pre-sentence report.

But the guideline does continue to say that “further information on age and/or lack of maturity can also be taken into account by courts when sentencing a young adult;” and that “it is important for the court to ensure that it has sufficient information about a female offender’s background”.

As for mothers with dependent children, pregnant and post-natal offenders, the court should obtain “detailed information” before sentencing them.

The Council has done as much as it could to keep the message that for these cohorts at least courts should generally be finding out as much as possible about their personal characteristics. In practical terms this, hopefully more often than not, will be by asking for a PSR.

The Council has also felt the need to amend the detailed explanations it includes in drop down form in its digital guidelines. Here I’d say they’ve gone too far. In the section on assessing the remorsefulness of an offender, they’ve removed the phrase “If a PSR has been prepared it may provide valuable assistance in this regard”. Also gone is the suggestion that a court will be assisted by a PSR in making an assessment of whether an offender has addressed an addiction or their offending behaviour.  Both of these statements are incontrovertibly true and it’s hard to see how they breach the new law.

Most worrying is the change the Council’s made to its guideline on sentencing children and young people. The original version stated that in making an assessment of whether a child under 18 is dangerous “it will be essential to obtain a pre-sentence report”. This has now been struck out. So, it seems, it is no longer essential.

The guideline continues to say that “the assessment of dangerousness should take into account all the available information relating to the circumstances of the offence and may also take into account any information regarding previous patterns of behaviour relating to this offence and any other relevant information relating to the child or young person”. So it might be argued – as with women and young adults- getting sufficient information to reach the best decision will in practice often mean obtaining a PSR. But to replace the word “essential” with – well nothing- is to my mind a mistake.

The Imposition guideline which set off this unseemly and unwelcome chain of events did not even deal with children. On this revision at least, the Council should think again.  

 

 

Unacceptable Violence

 

One of many troubling findings in the national annual report of Independent Monitoring Boards (IMB)out this week is “a level of acceptance among some staff and detained people, with poor conditions becoming normalised after years of inaction and minimal change; prisoners often feel there is no point in complaining and staff have become desensitised to seeing people in acute distress”.

I daresay losing the ability to be shocked can be a risk for local volunteers and professional inspectors too as it is for those of us who largely rely on their work to understand what’s happening in prisons.

Today I was shocked, reading the IMB report on HMP/YOI Hindley in Wigan. Not by the extended periods of lockdown due to staff absences in which prisoners are held in their cells 23 hours a day; nor that in one month last year more than three quarters of prisoners tested for drugs returned a positive result with occurrences of men found to be under the influence virtually daily. The scale of these problems may be high at Hindley but they’re sadly all too common across the estate.

What troubled me is a reference to the actions of trained and experienced officers from across the high security estate invited in to conduct comprehensive searches for illicit items.  Not surprisingly they found many phones, drugs and weapons. But the watchdog says that

“the level of violence used by a few external officers was unacceptable to the Board and Governors, who have pursued the matter through the official complaints process, with some matters referred to the police”.

I may be naïve but that does not seem normal to me. Not the violence necessarily, but certainly of a kind that results in a Governor referring prison service colleagues to the police. There are no further details about the incident but with recent calls for a substantial escalation in the force available for prison staff, it surely requires a fuller investigation.

I hate to say I told you so, but I told you so.

 More trouble at the new Secure School. Ofsted visited in April after concerns were received about children’s safety and well-being. Inspectors found  a high number of internal doors need to be replaced. This is because they are not sufficiently robust and "do not prevent children from passing through them when they are locked, particularly when children are upset or frustrated and are demonstrating this through their behaviour".  Presumably they'd to all intents and purposes been kicked in. 

This would be extraordinary enough given that nearly £40 million was spent fitting the premises out before it opened last summer. 

But the inspectors go on to say that "several doors were badly damaged during a short period. This caused some anxiety for children and staff. There has been an increase in instances of children making weapons out of everyday items. Some children say that this is because they have not always felt safe recently." 

This sounds a euphemism for serious disorder to me. 

As a result the number of children living at the home run by Christian charity Oasis Restore has had to be reduced. There were just 9 when Ofsted inspected, when it should be taking 22 (and eventually 49). It looks like the Secure School currently has no Principal and no Registered Manager.

I have never visited the place but unlike some who work in the sector, I've always had worries about an organisation with no experience of secure care being able to cope let alone implement their lofty ambitions to revolutionize youth justice. In the same building 30 odd years ago, Medway Secure Training Centre (STC) suffered a serious disturbance not long after opening. Deja vu all over again?  

Four years ago I wrote that "Given the inappropriateness of Young Offender Institutions and STCs, there is part of me that wishes this initiative well. But it looks too much like a risky experiment.  Secure Childrens Homes already offer a proven model – it’s they which should be being scaled up. Instead the number of places has gone down. 235 last year compared to 250 in 2015 not long before the Secure School was dreamed up. 

A Good Try- but can it be Converted?

 

I met David Gauke a few years back when our sons were on opposite sides in a rugby match. I was impressed that he recalled our touchline conversation when we talked briefly again this January at a Sentencing Council seminar. He told the seminar that whatever else it might do, there was an arithmetical imperative his Sentencing Review’s recommendations should effect a sustained reduction in demand for prison places to prevent continuing recourse to the emergency measures we’ve seen over the last couple of years.

His wide ranging and largely welcome report is more a review of the execution of sentences than it is of sentencing. It says little about addressing the rampant sentence inflation which the first part of the review identified as the cause of the capacity crisis.

But it does contain important proposals which are estimated to result in a fall in the prison population of 9,800 places. Unfortunately, the report lacks the kind of detailed cost benefit analysis that generally accompanies legislation in the form of an Impact Assessment signed off by ministers. That’s a shame, particularly as the Lord Chancellor’s rejection of some of Gauke’s proposals will undoubtedly bring the 9,800 figure down. But by how much it’s hard to say.  

Take the proposal that short custodial sentences are used only in exceptional circumstances. Gauke reckons this will save 2,000 places. But a similar measure proposed by the last government in 2023 was estimated to save between only 200 and 1,000 places. The Lord Chancellor has described the Gauke scheme as “a presumption against custodial sentences of less than a year – in favour of tough community sentences.” The 2023 version involved a duty to suspend a prison sentence- a subtle but important distinction which may account for the difference in the assessments.  But without the detailed workings it’s impossible to say.

A larger reduction in prison places is expected from Gauke’s early release proposals. Unfortunately, the Lord Chancellor hasn’t accepted them in their entirety. For those serving Standard Determinate Sentences (SDS), Government plans to ditch an upper limit to the proportion of the sentence they serve in prison will eat into the 4,100 places that would be saved. Gauke wanted the more dangerous prisoners serving Extended Sentences to be able to earn a Parole hearing at the halfway point of their sentence. MoJ says no and they’ll have to continue to wait until two thirds has passed. So the 600 places that would have been saved presumably won’t be.

The government say they’ll “introduce a tougher adjudication regime so that bad behaviour in prisons is properly punished”. Under the earned release scheme, offences against discipline, such as engaging in any threatening, abusive or violent behaviour, or possessing unauthorised articles would result in the offender’s release point being pushed back. It’s not clear that the Review team took a tougher disciplinary regime into account when assessing the numbers of SDS prisoners who’ll qualify for release at the earliest point.

The Lord Chancellor told Parliament today that as things stand, they’ll be short of 9,500 places by 2028. Gauke’s certainly had a try at bridging the gap. But can it be converted?