A Fresh Crackdown on Crime in Prison- if Only

Many of the great and the good of the prison reform world gathered yesterday morning at Church House to hear Justice Secretary David Gauke ’s second major speech on prison reform in six months.  His words were well enough received by an audience mostly relieved that he hadn’t been shifted to another post.  

Good that he’s found £30 million to repair prisons and equip more cells with phones. But its relatively small beer and maybe not new money. Of the array of initiatives he announced, quite what “digital categorisation” and “drug diagnostics” will deliver remains to be seen. And as for “Lifetime Offender Management”- well it doesn’t exactly sound like a ringing endorsement of the rehabilitative ideal.  Increasing release on temporary licence, improving incentives and creating more in the way of enhanced living conditions for prisoners who engage in rehabilitation sound promising if not entirely new. Forgive the scepticism, but as with Reform and Resettlement Prisons before them, there’s always the worry that these will be the stuff of speeches and press releases rather than sustainable real-world practice.

In- Cell telephones apart- the more progressive the policy ideas, the more aspirational and less concrete they become. Gauke, for example thinks too many people go to prison for prolific petty crime and short custodial sentences should only be used where absolutely appropriate. So what will he do? Introduce legislation restricting their imposition? Instruct the Sentencing Council to revise their guidelines? So far neither has been mentioned. It won’t happen of its own accord, particularly with probation in such a state.

The reason for the timing of Gauke’s speech became clear today, with the Chief Inspector’s  excoriating annual report on prisons.  Peter Clarke has seen conditions which he says have no place in an advanced nation in the 21st century. And prisons are still becoming less safe not more.  For Clarke, “improvement has yet to materialise”. Both staff and prisoners alike seem to have become inured to conditions that should not be accepted.

Cleverly getting his retaliation in first, Gauke was trying to give a rather more positive impression of the Government's management of penal affairs- as well as blunting the impact of Clarke's report .  

Just in case he looked too liberal, Gauke's  Church House policies were framed as “a fresh crackdown on crime in prison”. If only. The real crime in prison of course is that they have been allowed to deteriorate so far.  

Questions of Sentencing

An appearance this week in Parliament for the Chair of the Sentencing Council, who’s up before the Justice Committee as part of its inquiry into the prison population.  The Committee is always consulted about draft sentencing guidelines and has often been concerned about their potential to inflate the length of prison sentences. The Committee is right to be vigilant as a recent independent review of the Council’s work by Sir Anthony Bottoms found two of its major guidelines – on assaults and burglary - have led to unexpected increases in the severity of sentencing.  So what should MP’s ask Lord Justice Treacy on Wednesday? Here are four suggestions.
 

First, the Committee should ask why the Council rejected two of its proposals about the new breach guideline. The law requires courts to activate a suspended prison sentence in the event of a further conviction or failure to comply with a supervision requirement “unless it would be unjust in all the circumstances.” MP’s wanted courts, when forming a view on whether to activate, to be able to look afresh at whether the original offence had reached the custody threshold; and whether any shortfall in the quality of supervision by probation services may have contributed to the non-compliance or further offending.  The Council disagreed on both counts. Treacy should be asked to explain why “all the circumstances” excludes these two.

Second, as I did in my 2016 Transform Justice report , Tony Bottoms’ review criticised the Council for giving little emphasis to its duty, when drafting guidelines, to consider the cost and effectiveness of sentences. MP’s will want to know what steps the Council is taking to remedy this. Do they see any merit for example in explicitly permitting, or even encouraging courts to sentence below the usual range if it is in the interests of problem solving or rehabilitation in a case?  And how does the Council plan to reflect recent evidence that community-based supervision is more effective than a short spell in jail.

Third, MP’s might wonder what if any role the Council has to play in the implementation of the Female Offender Strategy published last month.  The strategy aims to “support a greater proportion of women to serve their sentence in the community successfully and reduce the numbers serving short custodial sentences”. But there is no mention of any new guideline or change in the law to make that happen. There is a case for guidelines on a distinctive approach to a variety of people with special needs.  But for women, it is surely long overdue.

Finally, the Committee should want to know if the Council has the resources to do its job properly. Treacy told the Committee in May that it couldn’t afford to research whether and how courts take the maturity of offenders in to account when sentencing- a topic of concern to the Justice Committee given their recent  inquiries into young adult offenders. Treacy's letter to them talked of an additional cut of 6% on top of 5% “which If implemented … would cut our available resources (after fixed costs and prior commitments) by 56 per cent”. Although the timescale’s not clear, it must be a false economy for the MoJ to grab a few thousand savings on research and analysis from a body whose decisions determine the spending of so many millions in prison costs.    

Population Explosion?

England and Wales has the highest rate of imprisonment in Western Europe.  Its 83,000 prisoners represent 141 per 100,000 of the general population. By comparison, the rate in France is 102, Germany 78, and the Netherlands 59. Last week the Minister responsible for prisons and sentencing told a parliamentary committee “the likelihood at the moment, unless something astonishing changes, is that our prison population will go up beyond 92,000 or 93,000”.

Although giving evidence to an inquiry on the prison population in 2022, Rory Stewart was presumably looking further into the future than that. His department’s statisticians put the chances of reaching or exceeding a 92,800 population in 2022 at just 5%. And since that estimate was made there has been a large and unexpected fall in prison numbers- there were 3,500 fewer prisoners than anticipated at the end of last week. So things would have to go catastrophically awry if the MoJ’s central projection for 2022- 88,000 prisoners – were to be exceeded by then, let alone Mr Stewart’s apocalyptic figure reached.

But what about the longer term?  Mr Stewart believes that “as we give more voice to citizens and to victims, almost inevitably we are going to face pressure between now and 2030 for longer and more brutal sentences”. He rightly pointed to punitive public attitudes to sex offenders who represent a growing proportion of prisoners. There’s less evidence for his assertion that “there will be a groundswell, probably between now and 2030, of people saying that domestic burglary is an absolute taboo.”

Committee Chair Bob Neill challenged Mr Stewart that the job of any responsible Government is  to lead and shape the conversation, to try to make sure that we have a more informed debate about how to deal with this. While the minister agreed, he added the proviso that “we understand the sea in which we are swimming”.  There's a good deal of research that suggest it may not be as shark infested as Mr Stewart believes.  

What’s crucial is how future governments choose to navigate that sea. Mr Stewart thinks  “an ever-growing prison population is not in the interests of the public” and that “the  victim will be better off, the offender will be better off and society will be better off if we ultimately have fewer people in prison.”

As in so many matters, this reasonable view is not wholly shared in his party.  The new Conservative Party Policy  Commission is chaired by Chris Skidmore MP- one of the co- authors of a book which made the case for restoring public confidence “by seeking longer tougher prison sentences”.  Maybe Mr Stewart’s seemingly defeatist approach to future penal policy betrays a belief that those who wish to “reverse the tide of soft justice “ will prevail within his party at least.

Lets hope not . Fellow Conservative  Bob Neill told Parliament yesterday that we could  “as a society and as a Parliament—seize the bull by the horns and make a determined resolve to reduce the prison population”. “That can be done”, he added  “by releasing prisoners who are not a threat to society in a physical or serious financial sense and by finding robust and credible alternatives to custody that enable sentencers to deal with many more offenders in the community without the need for the extreme cost of imprisonment.” That surely is the way forward.

Healthy Prisons - A Contradiction in Terms?

Finally published today is the report of an investigation I’ve undertaken into the life-threatening attempted suicide of a remand prisoner at HMP Brixton. Since the disastrous incident in 2010, AC (I can’t use his real name) has been in a hospital having sustained a serious and long-term brain injury. It was obviously a tragedy both for AC and his family.

The incident itself was particularly distressing too for the staff on the wing. AC had barricaded his cell by moving a locker between the bed and the door preventing anyone else entering the cell. Attempts to remove a metal plate which enables the cell door to be opened outwards were frustrated as one of the screws could not be loosened. By the time a locksmith from the works department got it open- almost half an hour after the start of the incident- the damage had been done. 

Much has changed in the prison world in the last eight years- a lot of it for the worse of course. Brixton has a different role as a Category C Resettlement Prison.  Nowadays it receives about 25 prisoners a week all from other prisons, compared to three times that number from court back in 2010. But I hope the findings and recommendations – almost all of which have been accepted – have been of some use there and across the prison estate.  

Re-reading the report which was finished in 2015, it’s clear the case raises three broader questions about the ability of prisons to deal with the many vulnerable men and women they accommodate- particularly those with mental health and or drug problems.

First there’s the inevitable interruption to healthcare which goes with imprisonment. Although AC was not formally diagnosed as schizophrenic, both he and his GP in the community knew his mental health was improved by his taking anti-psychotic medication. After the first few days in Brixton, he never got any during the three months he was there. He was the victim of a “catastrophic lack of clarity about respective responsibilities” for prescribing between the prison-based GP, mental health and substance misuse teams. Following my report, the NHS seem to have taken on board the underlying issues, but it’s quite possible that the other problems I found - poor communication between medical personnel and failure lack of follow up when prisoners fail to attend GP appointments- may well continue to be a risk particularly in busy local prisons.  

Second is the obstacle imprisonment puts in the way of families providing support to prisoners. AC’s sister had been looking after him in the community and visited him regularly in prison. Staff at Brixton failed to acknowledge the key role she played in his care or to engage constructively with her during his period in custody. She tried to warn the prison her brother was heading for a psychotic breakdown via a handwritten note to a nurse.  AC’s community-based GP and solicitor both wrote too - but the response was too little too late. The report adds weight to Lord Farmer’s recommendation that “prisons should be able to show evidence that family or other supportive relationships play a role in intelligence gathering regarding a prisoner’s mental health, drug use (prescription and illicit), propensity to violence and risk to self”.

The way the prison did respond to AC was via the disciplinary system. He was involved in at least two assaults on other prisoners and smashed up his cell. I found that staff showed little interest in identifying what lay behind AC’s behaviour on the wing, for example the nature and extent of his debts. He regularly asked to move wings and was known to smoke tobacco and heroin which incurred costs. But this was a stone best left unturned.

When a serious assault brought AC before an Independent Adjudicator. AC said he was an emotional wreck, was being broken and couldn’t get his proper medication. There was no record of whether this information was passed on to staff.

The sanctions imposed on AC during his time at Brixton may not seem unduly harsh; but loss of canteen, association and television can have significant impact on a prisoner with mental health problems, reducing opportunities for social interaction, diversion and relaxation. I recommended that possible adverse consequences on a prisoner’s mental health should be considered when imposing punishments and forfeitures at adjudications- but remain concerned that this may not always happen.

There are probably many people in prison not unlike AC. He had been remanded into custody following charges of burglary. His first conviction was at the age of 17 and he had several spells inside unable to keep stable accommodation or find regular employment. One of his previous assessments described a man “more comfortable within prison than without”.

Whatever the truth of that, this is a case that surely argues for the creation of a much wider range of custodial, residential and community-based options than currently exist for those remanded for or convicted of offences.  The Female Offender Strategy has proposed a new form of residential centre for women offenders. Do we need to think about new forms of infrastructure for men like AC too?  

Reducing Short Sentences for Women and Petty Offenders: Willing the Means as Well as the End.

At his excellent Bill McWilliams Memorial Lecture in Cambridge yesterday, Professor Rob Canton invited us to consider the case of Rita, a defendant with a long record of theft offences - described indeed by the prosecutor as a professional thief. Rita is a victim too, seemingly trapped in a series of violent relationships with men, with a strong suggestion that she is relieved of her ill-gotten gains by her current partner.  Why Punish? was the lecture’s title and by the end, in respect of Rita and many people like her there seemed no convincing answer. Yes, her behaviour should have consequences but imprisonment, or even an alternative such as a curfew with electronic monitoring look wholly inappropriate in the context of her life.   

Almost all of yesterday’s audience will I imagine have been pleased to hear today’s announcement that the government want to see fewer women in prison for short sentences. There will be a welcome too for the Justice Secretary’s view that “Offenders are part of our society and we must take steps to understand and address the underlying causes of offending, if we are to improve the lives of victims and support offenders to turn their own lives around”.  There may even be cautious optimism that the policy of reducing short sentences should apply to male offenders too. Prison Minister Rory Stewart said as much to the Justice Committee yesterday.

Where there may be more scepticism is about the means to the end. The £5 million earmarked for “intensive residential support options” which will act as alternatives for women is clearly not enough. Much more of the funds originally set aside for the thankfully abandoned community prisons should be reinvested to provide more comprehensive coverage.

But there will also need to be measures to ensure courts make proper use of community based alternatives. The Female Offender Strategy is very weak on sentencing, promising only that the “MoJ will work with judges to develop our understanding of what more might be done to ensure that the particular risks and needs of female offenders are addressed effectively in the court, and to ensure that courts receive all necessary information to inform the sentencing process”.  

Extraordinarily there’s no mention of the Sentencing Council which makes Guidelines for courts. Lord Phillips, who chaired its predecessor body wishes he had prepared a comprehensive set of gender specific guidelines. The current Council should rectify his oversight.  As well, they will surely need to look again at their forthcoming guideline on sentencing for breach offences which could lead to more rather than fewer short sentences.  More fundamentally I’d like to see the law changed so that previous convictions do not automatically make offences more serious. That’s the only way of keeping petty persistent offenders the right side of the custody threshold. 

Will this be done? I have my doubts after Rory Stewart's puzzling remarks in Parliament yesterday. He told MP's he'd like the prison population to go down but it was time to be realistic and accept that was not going to happen because of lack of public support. Instead he's planning for a prison population of 93,000 by 2022. This is far in excess of the 88,000 currently projected - an estimate that doesn't take account of recent falls. 

Why did he say that? Maybe he know something we don't and some ugly sentencing reforms are in the pipeline for serious offences. Maybe he wants to persuade the Treasury to let him keep the prison building money to give some headroom in the system to eliminate overcrowding. This is a plan the Conservatives had before the 2010 election before the Crash intervened.  Or perhaps Stewart wanted a get-tough headline in advance of the women’s strategy today. The Daily Mail’s “Green Light for Criminals"  headline, based on his comments about short term prisoners, hasn’t obliged.

Either way Stewart shouldn't give up on reducing prison numbers. There are lots more things he could do than perhaps he realises. 

As for the Mail, as far back as the 1990s, its  editor Paul Dacre  said that on crime his paper's role was "to articulate the concern of its readers and thereby harden the response from the Tory administration". Dacre is going soon and his approach to criminal policy should follow him out of the door. 

Questions for the Minister

I don’t know if its still the case, but people appearing before Parliamentary Select Committees used to get a friendly phone call a few days in advance telling them the likely lines of questioning. Nothing is put in writing and nothing prevents MPs straying from the script. But what are Prison Minister Rory Stewart and his head honchos from the MoJ likely to get asked today?

The hearing is the first in the Committee’s Inquiry Prison Population 2022 : Planning for the Future, an important attempt to look at the current and expected use of prison in the next five years and the Government’s plans for managing it.  I’d expected the committee to start their inquiry by taking evidence from other witnesses – the Prison service, ex Prisoners, Unions and Professional bodies, academics and prison reform groups- so that the MPs could confront the MoJ with the findings at the end. Instead the MoJ are getting their retaliation in first.  Their questions are likely to relate to three main  topics

a) The size of the prison population.  There’s been a welcome fall in prison numbers to under 83,000 and while this partly results from increased use of early release on Home Detention Curfew, the much bigger driver has been a 25% reduction in people being sentenced since 2010.  Prisons should have seen a much greater dividend had it not been for a rising proportion of offenders being sentenced to prison and an increase in sentence lengths. MP’s will want to ask Stewart if he is content with this sentence inflation and the role the Sentencing Council has been playing. They will also want to ask what he and his boss David Gauke are doing to reduce the use of short prison sentences. This will inevitably raise questions about the Probation Reforms. MPs will want to know if there is truth in reports that contracts are being redrawn 2 years early; and what the MoJ makes of the Committee’s recommendation for a speedy review of the whole sorry TR mess.

b) The prison building programme. The MoJ has £1.3 billion to spend on new prisons and MPs will want an update on how this is being used and how many new prisons will actually be built and when. The original idea was 10,000 new places in nine new prisons but expect to hear that its been scaled back. MP’s should ask whether the MoJ aim to end overcrowding and by when. The prison system at the end of May was designed for 78,000 – with only 75,000 places available for use. Is the strategy to increase the supply of places or reduce demand for them?   Rightly, the Justice Committee has historically pressed for the latter solution and should continue to do so.

c) Prison Performance. Since Mr Stewart appeared before the committee in January’s hearing about HMP Liverpool, two prisons- Nottingham and Exeter have been subject to the Inspectorate’s Urgent Notification Procedure and others- Bedford and Winchester among them – placed in some sort of Special Measures. MP’s may want to know what the Special Measures status entails and how the need for additional specialist support is decided and funded. They may also wonder about some sort of early warning system about failing prisons. Stewart expressed gratitude to the chief inspector for identifying the urgent attention required at Exeter.  Don’t ministers and the prison service need to get ahead of the game themselves on prison conditions?

There are a few additional points that the Committee may be tempted to raise. Experience of the new units for extremist prisoners; the new Youth Justice minister’s links with SERCO; the slow pace of recruitment for a new Prison and Probation Ombudsman; early experience of the Parole Board’s summaries of hearings; plans for Secure Schools.  There  is also the matter of the long awaited Women's Strategy  and the action resulting from David Lammy's review on race and criminal justice- both issues which arguably deserve a specific hearing in due course. 

But today, while MPs may be tempted to roam widely, they’d be better off pressing on the core questions of population, building and performance.   

Prison Reform around the World: The Need for an Alternative Approach

The international community has been showing welcome interest in how to improve prisons. A new International Committee of the Red Cross (ICRC) publication Towards Humane Prisons sets out principles for prison design which complement the technical planning guidance produced by the United Nations Office for Project Services (UNOPS) in 2016.   The last three years have seen the UN’s Office on Drugs and Crime (UNODC) publish handbooks on managing high risk and violent extremist prisoners, developing prison-based rehabilitation programmes and combating corruption in prisons. Civil society organisations have been active in producing guidance documents on matters such as tackling the mental health needs of prisoners, and undertaking inspections after serious incidents have taken place in prisons.

One important driver of these developments has been the Nelson Mandela Rules (NMR) - revised standard minimum rules adopted by the UN General Assembly at the end of 2015. Both the lengthy process of revision and the launch of the rules have helped to raise the profile of the harsh and damaging prison conditions which prevail across much of the world. The NMR themselves have highlighted the need for countries to modernise their prison laws, invest properly in infrastructure and personnel and improve training for those who work in prisons.

If prison reform activities are to stand any chance of success, what’s needed now is a similar exercise in respect of alternatives to prison. As the ICRC guide puts it “Considering the human, social and financial costs of detention, prison should only be used as a last resort and that alternatives to detention should be more seriously explored and developed”.    Penal Reform International’s latest Global Prison Trends study reports that the use of non-custodial measures has expanded in recent years, particularly for low-level offending; but crucially it points out that there is not necessarily a correlation between reducing prison population rates and increasing community sanctions.

While many countries have fines, probation, community service or suspended sentences on the books, their use by the courts and implementation on the ground vary enormously. Alternatives to pre- trial detention for suspects awaiting trial and systems of parole for prisoners serving long sentences are also patchy, often failing to play the role they should. 

There are international norms on alternatives in the form of the UN Standard Minimum Rules for Non-custodial Measures, the so called Tokyo Rules, dating from 1990. These aim to promote the use of alternatives to prison, provide minimum safeguards for persons subject to them and encourage greater community involvement in the treatment of offenders. But the Tokyo Rules are little known and need both publicising and updating.

There is scope for instance in reflecting recent developments in restorative justice which enable offenders to make amends to the victims of their wrongdoing; and for revised rules to stress the need for better ways of dealing with alleged and convicted offenders with special needs and vulnerabilities- such as people with mental health and addiction problems whose conditions can be worsened by imprisonment. The current rules make no mention of electronic monitoring – or tagging- which plays a growing role in many jurisdictions.  

If there’s a strong case for targeted revisions to the Tokyo Rules, there’s also an opportunity coming up. The 14th United Nations Congress on Crime Prevention and Criminal Justice will be hosted by the government of Japan in 2020, albeit in Kyoto rather than the capital city.  But 30 years after the rules were adopted, it would be a highly appropriate forum in which to promote the use of alternatives to prison. There may not be time to complete any revision process by then, but there is certainly time to start one

The draft agenda for the Congress includes an item on integrated approaches to challenges facing the criminal justice system. Of these challenges, prison overcrowding is among the largest. It’s not one that can be solved by prison building, however humane that may be.