Six Months to Go

Last January, confronted with the disgusting conditions at HMP Liverpool, Prisons Minister Rory Stewart told MPs that the neglect of basics in prisons had resulted from too much talk “about grand issues of sentencing policy, reoffending and the policy context”.  A year on, Stewart feels compelled to indulge in just that talk himself, telling the Telegraph he is “looking very carefully” at  imposing a new legal presumption on English and Welsh courts against sentences under six months - and potentially longer. 

Stewart has come round to the view expressed by the Council of Europe after their 2016 visit to the UK that prison reform will be unattainable without concrete steps to significantly reduce the current prison population.  Also of course, many of the ten prisons on which his own ministerial performance will be judged in the summer have large numbers of short term prisoners. The case for dealing with most of them in the community has been very well made by the Revolving Doors Short Sighted campaign.  

So what happens now?   First, Stewart and boss David Gauke will have to persuade government colleagues to legislate for the necessary changes, and MPs to back them. In 2011, five newly elected Tory MPs wrote “It has been argued in the past that instead of short prison sentences, there should be a presumption against sending criminals to prison. We should take exactly the opposite approach and ensure that persistent offenders are imprisoned for prolonged periods of time”. All those expressing that view are current or former ministers. Stewart will have to win them over and hope for a following wind from Labour. It was Ed Miliband’s opportunistic attack on Ken Clarke’s progressive penal policy that killed of the last serious effort to reduce prison numbers eight years ago.

Second the Ministry of Justice will need to find the technical mechanisms to bring about the reduction of short sentences in practice. In Scotland, since February 2011 a court must not pass a sentence of imprisonment for a term of 3 months or less unless it considers that no other method of dealing with the person is appropriate. But five years on, in 2016/17, almost three and a half thousand people received such sentences including 750 for shoplifting and 689 for breach of the peace.   That year, these very short sentences still accounted for 28% of prison sentences compared to 34% before the presumption against their use. The overall number of custodial sentences has fallen from about 15000 to 12000 but this reflects a fall in court cases.  Yes, community sentences have risen, but many have probably replaced fines rather than custody. 

So Scotland may not provide the best model. The MoJ should look at other approaches too. One is to be more explicit about how serious an offence must be before courts can impose a prison term. There is no general definition of where the so-called custody threshold lies. While Sentencing Guidelines say that  “the clear intention … is to reserve prison as a punishment for the most serious offences”, almost a thousand people were in prison at the end of March last year for shoplifting, 25 for theft of a bicycle and 11 for possession of cannabis. A higher hurdle is surely needed.  

Another problem is that courts must regard an offence as more serious if committed by someone with relevant previous convictions. Modifying this requirement so that courts may – but do not have to – punish repeat offenders more harshly is another route to consider.

A further option would be to encourage more suspended sentences. Currently, if the court imposes a term of imprisonment of between 14 days and 2 years, it may suspend the sentence for between 6 months and 2 years. Perhaps replace “may” with “must” other than where the interests of justice require immediate custody?  

I’d also like to see reinstated the principle that courts should take overcrowding and other painful realities of prison life into account when determining the punitive weight of a sentence.

A third task for the MoJ is to ensure that a wide range of properly resourced community-based measures are available and their availability communicated to courts. Problem- solving courts seem to have faded as a policy idea but if short sentences are to go, more, and more thorough, pre- sentence reports will be needed. So too perhaps a more systematic role for courts in reviewing the progress of sentences. The new probation contracts shortly to be let must take account of the MoJ' s new sentencing policy and provide resources to match it.

Earlier this week, the Chief Inspector of Probation wrote to the Justice Committee that  “with Brexit and other uncertainties, the proposed transition to new probation arrangements is not necessarily certain”.   Still less certain to be taken forward  perhaps are Mr Stewart’s grand issues of sentencing. They deserve to be. As was pointed out last year “Prison can become a ripe place for criminal education, serious and organised crime, and radicalisation, rather than rehabilitation”. By whom? No less than the National Police Chiefs Council.

Review of the Year (2) Prisons

Prisons minister Rory Stewart said today he wished he could lock MPs in the Commons chamber until they produced a positive consensus on Brexit. On reflection, yet another 650-place inner city Victorian jail is probably the last thing he needs in his day job- much as the public might at present support his sentiment. 

From the start of his tenure in January, when faced with explaining piles of rubbish, vermin infestations and degrading cell conditions at HMP Liverpool, Stewart and his boss David Gauke have certainly not ducked the challenge of trying to repair a ravaged prison estate, sensibly eschewing the high-flown rhetoric of their predecessors in favour of a back-to-basics campaign.  

At year end, Stewart told the Justice Committee he believed there are green shoots. Sadly, three weeks earlier, the Chief Inspector of Prisons told  a different tale. In July, Peter Clarke’s Annual Report had documented conditions which “have no place in an advanced nation in the 21st century.” By November, Clarke had seen nothing to give him optimism that any significant corner has been turned. “The violence figures are going in the wrong direction. We still see far too many drugs destabilising prisons. As to living conditions, I have not seen significant improvement in the prisons we inspect”.  

Of course, there should be improvements over time as staff numbers, so recklessly reduced earlier in the decade, increase and the new recruits that stick with it gain experience and confidence. The Inspectorate’s new Independent Reviews of Progress will hopefully document a more positive picture than we’ve seen in 2018- what Her Majesty might call an annus horribilis for her Prison and Probation Service.

Not surprisingly a whirlwind of initiatives has been announced during the year- and some are on the way to implementation. The revamped personal officer scheme (OMIC) has promise and the extension of in cell telephones could improve family contact and cut demand for illicit mobiles. More opportunities for release on temporary licence and enhanced living conditions for prisoners who engage with the regime could encourage positive behaviour as part of incentive schemes to be developed by governors rather than hq . Whether this can add up to a promised "rehabilitative culture" within establishments remains to be seen.

Already underway is the installation of new technology security solutions- airport-style scanners, body worn cameras, and phone-blocking. Dogs are used to patrol landings even in Category B prisons. There is a crackdown on crime in prison, with more prosecutions and tougher penalties for assaults on prison staff. 

In a recent case a prisoner in a Segregation unit pleaded guilty to three counts of administering a noxious substance for three separate potting incidents. Horrible of course, and I don’t know the details - but are three 10-month sentences served consecutively the only way of holding prisoners to account for this kind of behaviour?  More needs to be done to identify what lies behind it. In an investigation I did (published this year), I found debt in prison can be seen as a stone best left unturned by staff .

It’s not clear what’s become of promised changes to security categorisation aimed at isolating gang leaders from their followers. The rollout of PAVA spray looks to be on its way despite the Prison Reform Trust’s well-argued call for a rethink. It's a measure which owes as much to placating the demands of an increasingly frustrated POA as it does to  the success of the pilot scheme. 

In terms of resettlement, the challenges remain enormous. The Employment Strategy reports success in attracting business interest in taking on ex offenders and post Brexit gaps in the labour market could offer opportunities to people coming out of prison. Measures have also been announced to reduce shocking levels of homelessness and rough sleeping though currently limited to pilot sites.  At HMP Leeds, half of prisoners said in the Inspectorate’s survey this year they weren’t getting the help they needed to sort out accommodation, employment and finance on release.  Somehow, the inspectors rated outcomes on rehabilitation and release planning as reasonably good. 

To help fix this, a relaunched Through The Gate service should see 500 extra resettlement staff across all resettlement prisons in England and Wales. Yet the Prison Service cant seem to find a way to avoid the basic difficulties, highlighted by NACRO , created by  releasing prisoners on a Friday. 

2018 saw confirmation that two new men’s prisons will be built at Wellingborough and Glen Parva, both to be run by the private sector. These will provide more than 3,000 places out of a promised total of 10,000 in the new for old estate modernisation programme  Despite the debacle at HMP Birmingham which saw the prison service step in to run it in August, the Government has announced a Prison Operator Services Framework competition suggesting that the private sector will continue to play an important role -under a Conservative government at any rate. The Justice Committee’s hearing into what went wrong at Birmingham is a poor substitute for the full independent assessment  recommended by Peter Clarke. The assertion by former Justice Minister Phillip Lee that “companies are currently ripping off taxpayers” also needs proper investigation.

June’s long awaited Female Offender Strategy thankfully scrapped plans for small women’s prisons but pledged only a small proportion of what they would have cost to fund alternative residential centres. 

Should we expect something similar in respect of plans for new men’s prisons in the light of lower than expected prison population projections and higher pressures on the MOJ budget? There is certainly  case for a much wider range of custodial, residential and community-based options than currently exist for those remanded for or convicted of offences.

Back in January, two weeks into the job, Rory Stewart told the Justice Committee that

“If I am not able in the next 12 months to achieve some improvements in making these prisons basically clean, with more fixed broken windows and fewer drugs, I am not doing my job, and I would like you to hold me to account for that in 12 months’ time”.

Sensibly he subsequently bought himself more time (until August 2019) and specified ten prisons on which to be judged. Its HMPPS Chief Michael Spurr who’ll be leaving in the New Year.  Will Stewart be following him out of the gate?

Review of the Year (1) : Sentencing and the Prison Population

The prison population ends the year more than two and a half thousand- one Titan prison worth -lower than it started. That’s partly down to January's revised procedure for Home Detention Curfew. More than 3,000 prisoners were at home on electronic tags last week, 40% more than 12 months ago.  The 3% fall in prison numbers (its almost 6% for women) also reflects a decline in those formally dealt with by the criminal justice system. These have fallen to a record low, with 1.61 million individuals prosecuted or given an out of court disposal in the year ending June 2018.

Falling prison rolls don’t mean courts have become more lenient. The custody rate for indictable offences increased by one percentage point, over the year to June, to 32%- it was 24% in 2010. Average sentence lengths have continued to rise, reaching more than 17 months. The average was 12.6 months a ten years ago. Offenders are more likely to receive an immediate custodial sentence for a knife and offensive weapon offence.

Tougher sentences may mean courts have been dealing with more serious or prolific offenders than previously, but they may also reflect the impact of sentencing guidelines. An independent review of the Sentencing Council published in April confirmed that two major guidelines -on burglary and assault- “have now been shown to have resulted in some unexpected increases in sentencing” which “is bound to create anxiety among civil liberties groups and some criminal justice organisations”. Since then the Council has found unanticipated increases for sexual assault and supplying class A drugs following the introduction of its guidelines -but some decreases or no impact on other offences. It's too early to know about the impact of its more recent guidelines, including the one on breach offences which risks a greater use of prison for offenders who fail to comply with alternatives.  

For offences which can only be dealt with by Magistrates- the least serious to come before the courts- the custody rate fell in the year to June 2018 (from 1.6% to 1.5%). Sentences of six months or less also fell very slightly as a proportion of all custodial sentences but still represent more than half of those imposed over the year. 2018 has seen a growing acceptance of the case for more radical steps to reduce short sentences thanks to the Revolving Doors shortsighted campaign whose main messages seem to have been accepted by ministers. Action has so far  been limited but there is surely scope for it. Of the 5,342 prisoners serving jail terms of less than 12 months at the end of March this year, 30% were for theft -including 985 cases of shoplifting (and 25 of theft or unauthorised taking of a pedal cycle). 50 people each day are sent to prison for a period of a month or less. 

Replacing all short sentences would have a welcome but limited impact on the overall size of the prison population which is largely driven by sentence lengths and release decisions. There is a risk that  changes to the Parole system introduced in the wake of the Worboys case could see serious offenders spending longer inside whether they need to or not. 

In the longer term, the technical job of sentencing should get easier if the Law Commission's consolidated Code is put into law.  Its very troubling that the Lord Chief Justice should report that "on too many occasions, an unlawful sentence is imposed in the Crown Court & the mistake only noticed by a lawyer in the Court of Appeal Office when an appeal (on other grounds) is lodged."

Politically, prisons Minister Rory Stewart warned in June that “as we give more voice to citizens and to victims, almost inevitably we are going to face pressure…for longer and more brutal sentences”.  The Sentencing Council has appointed an external agency to examine issues of public confidence in sentencing, which will hopefully help find ways of avoiding Mr Stewart’s dystopian future.  

Overdoing it with the Pepper

Last month , Prisons Minister Rory Stewart announced that every officer in an adult male prison will be equipped with PAVA – a synthetic pepper spray which can be used to incapacitate violent prisoners. The £2 million investment followed what was described as “a successful pilot”.

The government made no secret of the trial which took place in four prisons, but did not publish the evaluation. Having received it via a Freedom of Information request – well done to HMPPS for responding positively- I can see why.   

For one thing the pilot “was unable to conclusively demonstrate that PAVA had any direct impact on levels of prison violence. Overall violence levels continued to rise across all of the pilot (and comparator) sites during the period, continuing previous trends. When violence did occur, “staff felt better able to deal with it and better equipped to arrest escalation and prevent harm with PAVA”. This seems the main criterion for success.

What’s worrying though is that “some staff were developing an over-reliance on PAVA as a way of resolving conflict.’' PAVA was drawn (taken out of the holster) or sprayed in 50 incidents in the pilot prisons. 18 of these were prisoner on staff assaults and 14 prisoner on prisoner assaults- the kinds of cases the spray is designed to stop. The other incidents comprised eight cases of passive non- compliance, seven of aggressive non-compliance, two of active self- harm and one other (an unspecified “incident at height”).  

The example of passive non- compliance given in the study is: “Prisoner refuses to return to his cell, gripping the landing railings and refuses to move. Officer fears it will escalate to fight with other prisoners.” This is presumably one of the incidents the evaluators mean when they say "staff used PAVA to enforce rules and gain compliance when it was not clearly the last resort or when more time could have been spent talking". 

This is some way from the use of the spray as a “personal protection aid, for staff to use reactively to defend themselves or others against serious attack”- which is what ministers were told it was for. Indeed  a panel who reviewed each of the incidents thought between 2 and 11 (between 4 and to 22%) of the 50 incidents were thought to have fallen outside of operational policy and expectations of professional conduct, and would therefore warrant further investigation. 

While no uses of PAVA were thought to have breached the law, puzzlingly the report claims there is a grey area between use of force that is legally justified and that which is professional and legitimate. Whatever that means, the evaluators estimate there will be a significant number of investigations into inappropriate or excessive use of what some staff refer to as "C&R in a can".

Prisoners and staff expressed mixed views on PAVA’s effect on relationships. Some prisoners had considerable concerns about overuse and procedural injustice, focusing on increasingly controlling and coercive behaviour of staff. Other prisoners saw the introduction of PAVA as necessary.

Staff were positive despite some being affected in 13 of the 33 cases where the spray was actually discharged. One of those described the experience as  "nasty, unbearable, like your skin peeling off, as if you have been acid attacked" Troublingly, in the light of this, "staff played down their descriptions of the impact of PAVA on prisoners, describing it as a minor use of force”.

The evaluation concludes that what is very clear is the need for high quality governance and scrutiny of use of force and the need for clear leadership messages from governors to set expectations of a professional standard of use. Amen to that.

The Mystery of the Prison Ombudsman and the Justice Committee

The new Prison and Probation Ombudsman (PPO), Sue McAllister started work yesterday. It’s an important role which had its origins in the Woolf Report into the 1990 Strangeways riot. Its remit has extended over time – it now adjudicates complaints from people on probation and immigration detention as well as prisoners. Since 2004 the PPO’s office has investigated all deaths in prisons, probation approved premises, immigration detention facilities and secure training centres.

The terms of reference for the post say that the PPO is appointed by the Secretary of State for Justice, following recommendation by the House of Commons Justice Select Committee. In this case, for some reason there has been no recommendation by the Justice Committee, at least not publicly.

There was a pre -appointment hearing on 17 July, just before the Parliamentary recess. Ms McAllister was given a good grilling over her use of social media and attitudes towards private prisons amongst other things. Committee Chair Bob Neill closed the hearing by saying “We will consider our report”. But there isn’t one.

According to the Liaison Committee (whose membership consists of the chairs of the House of Commons select committees) one of the purposes of pre-appointment hearings is “providing public reassurance…. that those appointed to key public offices have been selected on merit”. Another is “providing public evidence of the independence of mind of the candidate”. Maybe these purposes could be said to have been achieved by the hearing itself, the transcript of which is available for anyone to read. But it’s highly unusual for a Committee not to publish a view about whether a preferred candidate is appointable or not. 

I have no reason to doubt Ms McAllister's capability to do the job- although in the future I do think there is a case for this post to be held - like the Chief Inspector post -by someone who has not worked for the Prison Service. The perception of independence is crucial.  

And I do think the process of appointment should have been done properly. Maybe the Committee forgot about the report over the recess and hoped no one would notice. Or maybe they couldn’t agree.  Whatever the case, failing to publish an opinion looks as if the MPs have not discharged their responsibility. Mr Neill should explain why.

Security Concerns

Three NHS England reports earlier this month have documented how children can be locked up- basically in prisons, hospitals, secure training centres (STCs) and children’s homes. The Scoping Study on Secure Settings for Young People didn’t look at police cells (presumably because of the shortness of the stays) or immigration detention (thankfully tiny numbers of under 18s). And it didn’t go into placements of children with serious disabilities who may be deemed to have their liberty deprived. But it’s a useful analysis of the 60 closed facilities in England, Wales and Scotland, the 1322 English children they detained in September 2016, and the views of parents and of professionals about the various placements.

Among those views was the perception that despite the notional clarity of the different components of secure care, “detained young people in all types of setting often shared similar, disadvantaged backgrounds and characteristics, including mental health difficulties”. The census of young people found high levels of mental health morbidity in both youth justice and welfare placements, many looked after children in all the placements and lots of young people in welfare placements with a history of contact with youth offending teams.

While this overlapping profile of need argues for a streamlining of secure provision, the government are instead embarking on the creation of yet another type of custody- the secure school.  There may be something to be said for reconceiving “youth prisons as schools”, as Charlie Taylor’s 2016 review urged the government to do. But the poor track record of all kinds of closed institutions for young people (however they are labelled) calls at least for careful testing of any new approaches.

Former Justice minister Phillip Lee got this, telling the Justice committee last year that the secure schools idea is a pilot, which if proven a success should be rolled out across the country. By contrast, Lee’s successor Edward Argar has already concluded that “Secure Schools represent an entirely new approach to managing youth custody and are the best solution to address violence in the youth estate, improve outcomes for children leaving custody and reduce the unacceptably high level of reoffending in this sector”. Such hubris is hardly justified by the history of custodial establishments.  

Even if they work better than previous incarnations, I very much doubt there will be the funds for secure schools “to replace most existing youth custodial provision” as Charlie Taylor’s review expected. For one thing, ministers will point to the fact that Young Offender Institutions (YOIs) are improving slightly – although the claim in the 2017-18 Prison Performance Ratings that they are all “exceptional or meeting the majority of targets” is misleading as Feltham (and Parc) where performance is “of concern” are not categorised as YOIs.

The Government also faces calls to use scarce resources to reverse the recent decline in the number of beds in secure children’s homes (SCHs) and increase the number of mental health beds for young people. 

The NHS England study found 62 English children placed in secure units in Wales and Scotland and I understand there are often 20 plus children on a waiting list for a secure bed. A dismayed, frustrated and outraged judge has recently called the unavailability of appropriate secure placements for a 16-year-old from Bromley “a wholly unacceptable situation”, echoing LJ Munby’s warning last year that as a result “we will have blood on our hands”. There’s no doubt that the quality of care in SCHs is much better than in STCs or YOIs, notwithstanding the Prison Ombudsman’s report about the ineffectiveness of wellbeing checks in respect of two young people who died in SCHs early last year.

The Children’s Commissioner has suggested that one of the reasons for the troubling increase in the use of segregation in YOIs and STCs may be shortages of NHS mental health beds – “sometimes children spend long stints in segregation while waiting for a mental health bed to become available”. If funds are available, then more SCH and health places would seem more sensible than new secure schools. (I struggle to see how the proposed new schools will differ much from SCHs in any event)

But two further lessons emerge from the current debate about secure settings. First, we need a much more coordinated approach to commissioning and governance of secure facilities to break down the silos identified by the NHS England survey. In the Bromley case, the judge sent her ruling to the Secretaries of State for Education and Communities and Local Government; when it was raised in Parliament the Prime Minister said it was a matter for the Health Secretary. At that moment the TV camera zoomed in on the Justice Secretary. A cross departmental secure task force is urgently needed.

Second is the need for investment in a wider range of high-quality alternatives so that local authorities and the youth custody service have more options short of deprivation of liberty. The reduction in the number of children in custody over the last ten years has been a major achievement but further progress could and should be made. In international law, the arrest, detention or imprisonment of a child must be used only as a measure of last resort and for the shortest appropriate period.

I'd argue for a more fundamental rethink of  secure care;  less as a therapeutic intervention and more as a way of holding very damaged and risky young people only for the short periods required to plan effective and properly resourced care in the community.  

The Right Approach to Crime

It’s a quarter of a century since Michael Howard delighted the Conservative Party conference with his 27 measures to crack down on crime. “Let us be clear”, he told 1993’s Blackpool delegates “Prison works. It ensures that we are protected from murderers, muggers and rapists, and it makes many who are tempted to commit crime think twice.” While disappointing activists urging the return of the death penalty and the birching of young offenders, Howard received a two-minute standing ovation- and arguably set penal policy on the baleful 25-year course from which it has yet to break free.

This week’s Conference sessions featuring Home Secretary Sajid Javid and Justice Secretary David Gauke were thankfully very different in substance and tone from Howard’s diatribe against a criminal justice system he thought “tilted too far in favour of the criminal and against the protection of the public”. While one 1993 delegate was cheered for an attack on social workers, judges and some clergymen who 'gain more from the Guardian than the Gospels’, Javid this week argued that the public health approach to tackling serious violence requires contributions from “all the key parts of government, law enforcement and society”.

In similar vein, Gauke expressed his mission as being to reform the way we get offenders “to make the right choice, to reject a life of criminality and take the opportunity to work, accept responsibility and be part of society.”  

He even felt able to tell Tory members that “for minor crimes, custody should only be used as a last resort”- without the conventional counterbalancing tough announcements other than a reassurance that “community sentences should not be a soft option”. But even this will be achieved not – as I had feared- by even tougher enforcement but improved offender supervision. It’s true that  Gauke is cracking down hard on crime in prison – but many will find it difficult to see why the investigations and enforcement to be undertaken by his new Financial Crime Unit are not already being done.  (Opposition wags with long memories missed an opportunity to label it the drones hotline).

Over the long term, you can argue of course that it is precisely Howard’s legacy – and the consequent doubling of the prison population - which has bought the Tories the space to be a bit more progressive on penal policy. David Cameron and Michael Gove’s attempt to fill that space by launching prison reform as “a great progressive cause in British politics” was overblown from the off and has since been derailed by the operational crises crippling prisons.

But while trying to solve these crises, the all too many ministers involved have continued to embrace the aim of creating “a prison system that doesn’t see prisoners as simply liabilities to be managed, but instead as potential assets to be harnessed”. Placing education and healthcare at the heart of youth custody is an example of that. It could have been achieved by extending the number of secure children’s homes rather than creating a new generation of secure schools - an error compounded by choosing an existing Secure Training Centre for the site of the first such school. But there is a lot to be said for the vision.

   

There is no guarantee that the Tories will retain their progressive approach to prisons. Backbenchers include a good number of hawkish voices - 1993 birching proposer Andrew Rosindell is MP for Romford. So for that matter, does the front bench.   Brexit Secretary Dominic Rabb and Chief Secretary to the Treasury Liz Truss have co-authored a book calling for longer tougher sentences in an entirely contracted out prison system. But to be fair neither did too much about it when they held ministerial posts in the MoJ.

That may reflect the fact that, in Cameron’s words, “politicians from all sides of the political spectrum are starting to realise the diminishing returns from ever higher levels of incarceration” and that increasing prison numbers is not financially sustainable, nor the most cost-effective way of cutting crime. But that "penal pragmatism" could change if crime continues to rise, and to rise up the table of public concerns- as it has been doing. Howard told the 1993 conference that the silent majority had become the angry majority and he wanted to make sure that “it is criminals that are frightened, not law-abiding members of the public.”  Criminal justice may have been the first policy area to be infected by populism but that doesn’t mean it couldn’t get another dose.