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.

Labour Law

 Did this week’s Party Conference tell us any more about the criminal justice and prison policy we might get from a Labour government? Last year’s election manifesto retained that most Blairite of slogans “Tough on Crime Tough on the Causes of Crime” and though the words weren’t used in Liverpool, Jeremy Corbyn continued to express the sentiment. For the leader, 10,000 extra police officers will play “a vital role in tackling crime and making people safer”. But “more police are only part of the solution” alongside investment in young people and communities.

Corbyn parts company from New Labour on the role of the private sector arguing that the G4S Birmingham debacle and a privatised probation service "on the brink of meltdown" shows that what has long been a scam is now a crisis. It’s a scandal, he promised that “Richard Burgon, the next Secretary of State for Justice will end.”

Mindful perhaps of how Jack Straw’s pre-1997 moral repugnance about prison privatisation came to haunt him, Burgon himself pledged only to scrap plans to build new private prisons.  Whether this includes Glen Parva, where work is due to start later this year or future builds yet to be announced will all depend what contracts have been signed in the event that Labour come to power.  The same is true of probation, but here Burgon has suggested that it will all be brought back into the public sector. Lord Ramsbotham’s task force is about how not if. But the key question may be when. Buying CRCs out of newly signed contracts may simply be too costly.

In the here and now, Burgon’s five-point plan to tackle the prison crisis also has pounds signs written all over it- in particular the recruitment and retention of more prison staff. There’s a lot of sense in the demands to tackle overcrowding and end short sentences but Labour are targetting only "super short sentences" of three months or less. That they are  more timid than other parties should not be a surprise. Since 1945, prison numbers have on average risen twice as much under Labour administrations than Tory ones. 

Whatever their magnitude, these changes require concrete proposals to make them  happen. Labour's plan offers the chance of a cross party consensus.  I’d like to see the law changed so that prison sentences can only be imposed when the offending is so serious that a sentence of 12 months or more is justified. That might take prison numbers down towards the 75,000 uncrowded places in the system.

A radical Labour government should go further than that . Four years ago, - it seems a good deal more- along with others I gave evidence to a sparsely attended Justice Committee hearing on Crime Reduction Policies. Two of the five MPs who turned up were then backbenchers Jeremy Corbyn and John McDonnell. Corbyn showed himself to be a fan of the Justice Reinvestment approach promoted by the Committee some years earlier.  “ If the crime rate falls", he observed,  "the prison population falls and there are greater resources available for reinvestment in crime reduction policies-a wholly virtuous circle. It was a great idea”. He was right, and it still is.

Spurr's Relegated

   A few years ago, I attended a leaving do for a NOMS official with whom I’d worked closely. Michael Spurr paused his generous speech a couple of times as he wanted to be kept updated about a hostage taking incident.  His warm words and care about realities on the ground- in this case thankfully resolved peacefully- show why he has been such a well-liked leader in the prison service.  Having worked his way up from the wings at Armley Jail, few know or care more about prisons in this country. But there’s no getting away from the fact that his period in charge has coincided with their catastrophic decline.  The probation service has all but been destroyed and the oft and much heralded development of electronic monitoring something of a fiasco.

How much responsibility should Michael bear for these failings? Not much is the emerging consensus. I agree that the lion’s share of the blame for the deterioration of prisons lies with the first three Justice Secretaries Spurr served as NOMS CEO. Kenneth Clarke offered enormous Departmental savings to the Treasury predicated on prison population falls that he could never deliver. Chris Grayling made a Faustian pact with Unions resulting in much lower levels of staffing as an alternative to privatisation as well as signing unsustainable maintenance contracts for prisons. Michael Gove’s lofty rhetoric of redemption merely acted as a distraction from the growing problems of safety and control in many jails. (Unsurprisingly an evaluation of Gove’s six Reform Prisons due this summer has not materialised)

Michael fared slightly better with his second trio of Lord Chancellors, particularly the underrated Liz Truss who managed to obtain much needed funds to recruit more staff. Davids Lidington and Gauke have continued a pragmatic approach to repairing the enormous damage inflicted by their predecessors. But Gauke has now decided that the uncomplaining Spurr should be relieved of his duties. Maybe last week’s POA action has prompted the move.

I have no doubt that Spurr will have spoken truth to power when giving advice about policy options, but as Julian LeVay has argued, his job was then to implement whatever Ministers decided. Could he have done more to blow the whistle about the likely consequences?

As accounting officer, Spurr might have sought ministerial direction about the feasibility of some of the measures he was asked to implement- particularly the probation reforms whose risks were so widely voiced in and outside government.  It’s worth recalling that it was warnings about the consequences of overcrowding made by Spurr’s predecessor Phil Wheatley which forced Labour ministers to introduce a temporary early release scheme in 2007.  I hope Spurr and the Permanent Secretary gave clear and explicit warnings about the impact of staffing cuts on violence, self-harm and disorder in prisons. If ministers ignored them, shame on them. But maybe that advice was not given with sufficient force.

In 2016 the National Audit Office found that Permanent Secretaries appear to lack confidence to challenge Ministers where they have concerns about the feasibility or value for money of new policies or decisions, not least because standing up to Ministers is seen as damaging to a civil servant’s career prospects. That’s nothing new. I remember when Kenneth Clarke dreamt up the absurd idea of Secure Training Centres for 12 year old persistent offenders, we officials hoped the Permanent Secretary might intervene, joking that he was “keeping his powder dry”. When he reluctantly attended a meeting with Clarke, the PS said virtually nothing other than berating me afterwards that my submission was too long.

So what are the lessons for Spurr’s successor?  Prisons need a Whitehall heavy hitter able to stand up to ministers more than they do a knowledgeable and experienced practitioner. Someone like Simon Stevens who has carved out some freedom of manoeuvre as head of the NHS .  And whether Probation should stay linked with Prisons should be carefully considered. Probation has not gone well in NOMS or HMPPS. I'd devolve it but lets see what the consultation brings.

State of Emergency

Should we think of prison officers as emergency workers? This week’s new law creating tougher penalties for assaults on such workers certainly does so. The categorisation seemed a bit odd to me- what about probation staff or youth workers who don’t make the list? They get thumped – or worse- from time to time- I got a head butt from a lad on Intermediate Treatment back in the 80's. Anyway, I concluded that philosophically, it might be quite helpful to think of imprisonment as an emergency – an abnormal and harmful situation which we should do everything possible to prevent, minimise and help sufferers to recover from.  

This week’s warning letter from the Chief Inspector of Prisons about HMP Bedford describes a more straightforward emergency in terms of immediate risks to health, life and property. The horror stories include a prisoner luring rats into his cell and killing them- an amputee trying to stay clean by splashing water on himself from the sink- and frightened or incompetent staff unwilling to intervene with one group of rowdy prisoners or acceding to unreasonable demands from another to get them back into their cells.  Peter Clarke found attacks on staff – some serious- taking place at least every other day and even more frequent incidents of self-harm among prisoners.  It's little surprise that this has proved a last straw for the Prison Officers Association who have flirted with illegality to organise a national protest.   

In his response to the industrial action Prison Minister Rory Stewart claimed that “we are taking the action that needs to be taken.”  But are they? Alongside harsher penalties for violent prisoners, body worn cameras, ‘police-style’ handcuffs and restraints, incapacitant spray and patrol dogs on landings look like a narrow and lopsided remedy. Stewart must recognise this; in Parliament, he described as “a very reasonable proposal” Labour’s idea for an emergency plan, with new Treasury funds, to end overcrowding and end under staffing.  

What should such a plan look like? There’s certainly a need to revise upward the target for recruiting new prison staff. Current plans will not lead to the necessary ratios  But action is needed on the demand side too.

Given the concentration of the worst difficulties in local prisons, the government should move immediately on their proposal to reduce the use of short sentences. We don’t know the makeup of Bedford’s population today but when inspectors last went in 2016, a fifth of prisoners were serving sentences of less than 12 months. Cutting these numbers would free up not only space but officer time in receiving and releasing petty offenders every day.  

Rory Stewart may be right that “something as serious as changing our entire sentencing policy would require primary legislation and a lot of discussion in the House” but while getting that process going, his boss David Gauke, the Lord Chief Justice and new Chair of the Sentencing Council should find ways of encouraging courts to suspend more short prison sentences or convert them into community orders.  

One way might be to introduce a new national presumption against the use of short custodial sentences, recommended yet again this week in a thoughtful report from CREST Advisory. Another might be to reinstate the principle that courts should take overcrowding and other painful realities of prison life into account when determining the punitive weight of a sentence. 

Before sending people off to HMP Bedford, judges from Luton and St Albans Crown Courts and surrounding Magistrates’ Courts ought surely to reflect on the conditions there and the fact that one prisoner in five say they acquire a drug habit after arrival. Local consultation arrangements involving police, prosecutors, courts, probation and prisons - such as those introduced after the Woolf Report into the Strangways riot- need to be reinvigorated.   

Ensuring such arrangements between justice agencies are in place across the country could also help to limit the numbers on remand – over a quarter of prisoners at Bedford in 2016 -and those recalled  for breaching orders- 10% in Bedford .  

There are many longer term measures that need to be taken to stabilise prisons such as providing an opportunity for prisoners to earn earlier – maybe much earlier- release. Rightly or wrongly, too many prisoners feel they have little to gain by abiding by the rules. Again, while legislation would be needed in the long term, some measures along these lines might be introduced without it. Constitutional purists might quibble, but the whole point of a state of emergency is that it requires governments to do things that normally aren’t permitted.