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?

 

 

 

 

Sentencing Review: Three Things to Look Out For

 

Unless something’s been kept under wraps, many of the broad recommendations of the Sentencing Review have already been trailed as has the Government’s likely response. The central elements seem to comprise reducing short jail terms, a new scheme of earned early release and stronger community sentences. Here’s what I’ll be looking out for tomorrow.

Short Sentences: Chalk or Gauke?

When he was Lord Chancellor six years ago, David Gauke saw a “a very strong case to abolish sentences of six months or less altogether, with some closely defined exceptions, and put in their place, a robust community order regime.” He didn’t get a chance to act on it but five successors on, Alex Chalk’s Sentencing Bill  would have introduced a presumption on the courts to suspend short sentences of 12 months’ custody or less.  The election intervened so will successor number six go for abolition or suspension and what will the upper limit be? Perhaps more than 12 months?

What will prisoners have to do to earn early release?

It’s been reported that those qualifying could spend a third of their jail term behind bars with a further third  at home subject to electronic monitoring and the final third on licence with a liability to recall. Those who don’t earn the extra freedom are likely to spend a half their sentence in prison. The proportions may turn out to be slightly different but the bigger issue is what to do to get out early?

One option is simply to reward good conduct, measured presumably by the avoidance of disciplinary sanctions or reaching and maintaining the enhanced level on the scheme of Incentives and Earned Privileges. While this looks straightforward, developing a fair decision making process will have challenges. Prison Inspectors said last year that “staff regularly failed to challenge poor behaviour on the wings. In some prisons, rules were broken with near impunity because leaders had not established clear boundaries, and drug testing and adjudication processes were not used effectively”.

Another, or additional option is a Texas style points system which gives credit for participation in purposeful activities such as work or education or more formal rehabilitation programmes  aimed at addressing offending behaviour.

Given the limited and variable access prisoners have to positive activities even in training prisons, this looks even more problematic.  The Chief Inspector told MPs last week that assessments of purposeful activity have been consistently the lowest scoring of their four healthy prison tests since 1982. Only two out of 32 closed prisons inspected in 2023-24 were rated good or reasonably good for purposeful activity. Questions of fairness arise if prisoners in those two jails can reach the threshold for release more easily than those in worse performing jails who simply don’t get the opportunities to accumulate the points needed to reach the threshold for release.

Whatever the scheme entails, the Prison Service will need to devise a fair, timely and efficient process for assessing eligibility. The Inspectorate reported last year that staff  shortages were impeding effective offender management and prisoners’ ability to work through their sentence plans. How will a Lord Chancellor very committed to equality before the law make sure prisoners have a level playing field?

Will community supervision be able to step up to the plate? 

The new arrangements will entail a welcome shift of emphasis away from imprisonment to the community. As well as the need for the spending review settlement to reflect this, there looks to be a specific problem with electronic monitoring, highlighted in a recent Channel 4 documentary.

Financial penalties have been levied on Serco every month since they took on the service on 1 May 2024 because of poor performance. It turns out that their proposal to run the tagging scheme was classed as an Abnormally Low Bid but eventually approved.

If the new arrangements are to work well, the government will need to ensure not only that the Probation Service is given the resources they need to do the job but that tagging is run effectively and efficiently. What will the government do to strengthen supervision in the community?

No doubt, the Review and response to it will raise many other questions; for example if and how the new release arrangements will interact with existing processes like Home Detention Curfew?  But given the capacity crisis, perhaps the biggest one of all is how many prison places the new arrangements are expected to save. I hope there is a detailed impact assessment alongside the government plans but I am not holding my breath.

Dutch Lessons

 

Prisons at bursting point, insufficient staff to run them and maintenance backlogs threatening to make them unusable. This isn’t the UK but the Netherlands. A country not long ago renting out its unused facilities to other countries is now having to consider putting mattresses in cells to increase its own capacity.

Delegates at the ICPA Research Symposium in Belfast heard senior officials from the Dutch Ministry of Justice and Security tell an all too familiar tale- prisons closed when numbers fell, sentences (particularly for drug offences) increasing in length and politicians loathe to spend the necessary financial and political capital needed to cope with the looming crisis let alone avert it.

Until now. The Dutch have embarked on developing a ten year strategy for a sustainable justice system- a kind of Gauke Review plus- looking not only at sentencing but at the drivers of crime, at public health and drug policies and at the shape of the correctional response that might be needed in the future. As the conference heard “the problem is too big for the prison system.” Delegates from England and Wales were left thinking if only we’d set up something like that.

The Dutch rate of imprisonment per hundred thousand of the population is still well under half what it is in England and Wales but like us the Netherlands is being forced to take some unpalatable short term measures.  These include using police cells and reopening some closed prison units.

In addition, there are currently 8,000 people sentenced to prison in the Netherlands who are at home. They are on a waiting list to serve their term when a space comes up.  

It’s not ideal in all sorts of ways but I’m surprised the so called prison queue has not been debated here as part of the plans to counter the prison capacity crisis which have been further laid out by the Lord Chancellor this week.

Could courts not be asked to keep out of prison all convicted offenders who have successfully spent their remand period in the community? If they do impose a custodial sentence, could it not be suspended, deferred, or postponed, depending on the circumstances?   

Perhaps Mr Gauke’s review, expected imminently, will propose it.

Incapacitating Children in Custody

 

Two days after announcing a trial into the use of Conductive Energy Devices (tasers) in adult male prisons, the Justice Secretary has authorised the use of PAVA, (synthetic pepper spray) in the three publicly run Young Offender Institutions (YOI) which hold children under 18.

A Ministry of Justice study on use of force spells out the overwhelming and painful effects of being on the receiving end of PAVA. Adult prisoners described feeling unable to breathe, and how the effects lasted more than an hour after exposure. One prisoner said: “My face felt like it was on fire, I couldn't see. I was just left on my own”.

Some of those affected were provided with a laminated paper outlining what should happen by way of aftercare but weren’t able to read it due to the impact of PAVA. Exposure to fresh air after an incident, and timely access to healthcare, “seemed inconsistent.”

Is this what we have come to in dealing with the youngest people in the prison estate?

Yes, there is a real and serious problem of violence in youth prisons. Latest data suggest it has been getting worse still, with assaults in 2024 up almost 25% on the previous year. But there are surely better ways to reduce it. After all , the availability of PAVA has not been conspicuously successful in curbing violence in adult jails, where assaults on staff reached a new peak last year. Before then Prisons Minister Rory Stewart rolled out its use in 2018, a pilot scheme “was unable to conclusively demonstrate that PAVA had any direct impact on levels of prison violence”.

So what is the answer? Monitors at Cookham Wood Young Offender Institution have recently reported on the final few weeks before the YOI closed last year. They found that “when the number of boys was very low, there was a glimpse of what a more positive regime could look like. This was an entirely different establishment, humane, offering a good amount of education and other activities; and where officers had the time to work more closely with individual boys.

Moreover “the small units were able to support the needs of boys with very challenging behaviour, including violence. Increased time out of room calmed the boys; they were occupied with education and increased association time.” The watchdog found it “very sad that the Youth Custody Service (YCS) had been unable to offer this type of regime previously at Cookham Wood.

This surely is the way forward for youth custody. To be fair, Shabana Mahmood told MPs in the longer-term, “we intend to move away from the current estate based on the evidence of what works for young people in custody. We will learn from the pilot of the first ever Secure School and the operation of Secure Children’s Homes (SCH).

But ministers have been saying much the same for more than seven years. In November 2017, a then Justice Minister told MPs he expected “that over the next 10 years or so, because it will take time, we will replace everything with secure schools.” Successive governments have neither sustained the political will nor found the money to do it. The daily cost of a place in a YOI is about £350, compared to £950 in a SCH.

According to the Chair of the Prison Officers Association, “a 17 year old armed with a knife is just as lethal as a terrorist prisoner.”  Let’s hope we aren’t going down a road  which leads to children in custody eventually being tasered too.