Friday, 16 March 2018

The Little Things that Give You Away

I’ve forgotten the term for when people say or do seemingly inconsequential  things which reveal some deeper and more inconvenient truth. I’ve been struck by three in criminal justice this week

Let’s start with the judge who gave an 83 year old man with prostate cancer a 14 month prison sentence for contempt of court arising from a bitter divorce. Of its kind it was a serious offence. When I suggested on twitter that there must be a better alternative than  prison, one lawyer commented that the case involved “numerous, persistent, contumacious breaches of court orders, compounding a determined failure to engage with original proceedings. It can be a real problem in the family court”. Another said “Frankly I'm more sympathetic to most burglars I have met”.  

Anyway it was a bit in the sentencing remarks that struck me. “Nobody” the judge said “wants to see a man of that age going to prison unless it is genuinely necessary.”  Very true. But isn’t there a troubling implication there that it might be okay for younger, fitter men to be locked up in the absence of a genuine necessity. Maybe I’m reading too much into it, but the case strengthens the argument – recently made by Oxford sentencing experts Julian Roberts and Lyndon Harris for a Penal Audit:  “a cross-party examination of the prison estate with a view to determining whether there is any consensus about the proportion of prisoners who could have been sentenced to a community-based sanction”.

The second giveaway, is the Justice Secretary’s evidence to the Justice Committee last week. In the course of questioning about the size the prison population- its not the metric on which he wants to be assessed-,  David Gauke told MPs “clearly, if prison numbers were stable or falling, it would give us scope to deal with some maintenance issues". Because prison numbers didn’t rise as normal in the first two months of the year “it enables us to undertake repairs and so on”. 

Again, that sounds okay until you realise that the minister is in effect admitting that the ability to provide acceptable living conditions requires a fall in prison numbers- or a buffer in the system as he put it. He is not talking about the space to apply a new lick of paint but dealing with squalid cells without emergency call bells, and hundreds of broken windows. As for meeting a key international norm observed by prison systems in many much poorer countries- keeping remand and sentenced prisoners separately- we are nowhere near in England and Wales.    

The third revelation this week came on youth justice. The MOJ told the Justice Committee that the two new pilot secure schools they are building will offer a therapeutic environment where education, healthcare & physical activity are key; this will distinguish secure schools from current youth custody provision & its predecessors. Really? My initial response is that it's insane to set up these new centres at the same time as the local authorities are having to close some of their facilities for disturbed young people in communities throughout the country.

Tuesday, 6 March 2018

Follow up Questions. What the Justice Committee should ask the Justice Secretary.

Having been greeted on arrival in office by the John Worboys row, new Justice Secretary David Gauke has since kept a low profile. He set out his thoughts on prisons at the RSA this morning, and whether by chance or design will be questioned tomorrow by the Justice Committee. While MPs will focus on his wider departmental responsibilities- the Parole review, court closures, miscarriages of justice and probation failings are likely to come up- Bob Neill and his colleagues have a chance to press Gauke on some of the prison proposals he announced today.

First they will want to know more about his plans to crack down on modern day Harry Grouts- the organised crime bosses who he thinks drive the drug trade inside and its catastrophic consequences. Gauke wants to rethink the categorisation of prisoners so that ring leaders can be “isolated” from their followers. Whether this means a fundamental review of the four tier security classification system or simply tweaks to the criteria for allocation to Category A high security prisons is not clear. Gauke wants categorisation decisions to give greater weight to behaviour in prison- but this would mark a substantial change in policy and practice which needs careful planning.

Second, Gauke wants to change the incentives and earned privileges scheme which Governors tell him isn’t working. This could involve unwinding Chris Grayling’s reforms  to the scheme and strengthening carrots rather than lengthening sticks. In the best part of his speech Gauke talked of giving opportunities for prisoners to earn, through good behaviour,  greater contact with families and release on temporary licence. Why not permanent release, MPs might ask. This was one of Michael Gove’s ideas which disappeared with him . Gauke indicated that it may be up to Governors rather than Whitehall to reshape the privileges and sanctions scheme.   While this might  serve to kick start the stalled governor autonomy project , it could bring  risks of inconsistency and  perceived unfairness on the part of prisoners.

Third, Gauke was clear that he wanted to see prisoner numbers fall but….only as an aspiration  if re-offending falls . He talked about the importance of rehabilitation but as befits the views of a police officer’s son, this has to start with prisoners playing by the rules.  The truth surely is that the grim reality of life in many overcrowded prisons  reinforces rather than challenges criminal behaviour. Further spending cuts, which Gauke would not rule out for prisons, will make things worse - unless there is a serious effort to reduce the prison population.  

Gauke claimed to have persuaded his Cabinet colleagues to join a new inter departmental committee to address the £15 billion cost of  re-offending. While the Justice Committee will wish to probe its terms of reference, MP's could usefully  suggest that its first agenda item should be on finding ways of keeping people out of jail. Gauke's description of the prison system today certainly made a strong case for that.

Wednesday, 7 February 2018

The Parole Board's Day in Court

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

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

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

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

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

Thursday, 25 January 2018

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

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

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

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

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

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

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

Saturday, 20 January 2018

Prisons- Solution to Crime or Part of the Problem?

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

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

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

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

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

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

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

Monday, 8 January 2018

Parole Reviews

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

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

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

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

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

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

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

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

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

Saturday, 23 December 2017

A Right Royal Scandal

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

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

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

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

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

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

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

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

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

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