Tagging Along

Boris Johnson’s efforts to increase prison time served by serious sexual and violent offenders by way of a Statutory Instrument were stymied by the House of Lords. Before the election was called, the Lords Secondary Legislation Scrutiny Committee also put paid to the other proposal to emerge from the so-called Sentencing Review- the national rollout of the Alcohol Abstinence and Monitoring Requirement (AAMR) or Sobriety Tag. This requires an offender to abstain from alcohol for up to 120 days with compliance electronically monitored. The tag worn on the ankle takes a sample of sweat every 30 minutes which is analysed for the presence of alcohol. First piloted in London when  Johnson was Mayor, both the PM and his erstwhile advisers now in No 10 are enthusiastic about it.

Back in 2015 the Conservative manifesto pledged to make Sobriety Orders, reinforced by tags available to all courts in England and Wales- but it didn’t happen (and the policy was not mentioned in the 2017 manifesto). It was not until The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 14) Order 2019 was laid before Parliament last month that the government has sought to enable the Sobriety Tags to be imposed as part of a requirement of a community order or a suspended sentence order throughout the country.   

As with the Statutory Instrument which would have increased the proportion of time served by prisoners convicted of serious crime, the Lords Committee raised concerns. Being asked to approve the programme on the basis of very limited information was “unacceptable”; it was “interesting”, but rollout was “premature”.   The Committee recommended that the House press the Minister for more detail on all aspects of the plans for rollout and anticipated long-term outcomes. There was no time to do this before Parliament was dissolved so the law hasn’t changed.  

The 2012 Act provided that  national implementation could only happen after piloting and the Government claimed that two pilots had proved sobriety tags a success. A process and performance review of the scheme across the capital – one of four published evaluations – has reported on more than 1,000 AAMRs imposed between April 2016 and March 2018. There was a compliance rate of 94% with the tag- although compliance with the overall order of which the tag was a part was lower- a distinction about which the Lords Committee wanted clarification. More significantly, there is no data about re-offending with an analysis from the Mayor’s office almost a year late.  

The evaluation of the other pilot in Humberside, Lincolnshire and North Yorkshire is not due to be completed until February 2020. Despite this, the MoJ considers that it now has the information necessary to fully commence the legislation and roll out AAMR across England and Wales. Their Lordships disagreed.

It’s certain that sobriety tags will figure in the Conservative manifesto, alongside perhaps  the promises of swift and certain punishment or flash incarceration made before . Whether they come to anything is of course another matter.    

The Lords of Mercy

What happened to the Government’s plans to increase the time in prison served by serious offenders? On 1st October, Justice Secretary Robert Buckland told the Tory Conference that for the most serious violent and sexual offenders … this Conservative Government will abolish automatic early release at the halfway point”. Two weeks later the Queen’s Speech duly announced a Sentencing Bill which would change the automatic release point from halfway to the two-thirds point for adult offenders serving sentences of four years or more for serious violent or sexual offences, bringing this in line with the earliest release point for those considered to be dangerous. The Bill of course got nowhere before the election was called. 

But on the same day as the Queen's speech, Buckland tabled in Parliament the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019. This Statutory Instrument (SI) would have brought the same change into force from April 2020- much sooner than primary legislation would have allowed- but for prisoners sentenced to seven years or more, rather than four. Buckland explained the different thresholds to the Justice Committee on 16 October in terms of “trying to make sure that we create a system that is supported by the resources I need”.  

Whatever length of sentence qualifies for the more restrictive arrangements, it’s surprising that secondary legislation can be used to introduce a measure which would so substantially increase levels of punishment, requiring 2,000 new prison places by 2030. But that’s what the Criminal Justice Act 2003 permits. At least the SI had to be laid under the affirmative procedure which means it must be actively approved by both Houses of Parliament.

The Commons Joint Committee on Statutory Instruments raised no concerns about it on 23 October but the following week the House of Lords Secondary Legislation Scrutiny Committee were less sanguine, drawing it to the special attention of the House “on the ground that it gives rise to issues of public policy likely to be of interest” to it.

In particular, the Committee took the view that the Order “represents one piece of a large and complicated jigsaw and the House may wish to ask the Minister for more information about how the pieces fit together. In particular the House may wish to seek reassurance from the Minister that adequate resources will be available in good time to meet this expanded remit, both in relation to prison accommodation and prison service staff”. The dissolution of parliament meant there was no time for such reassurance to be sought so the law has not been changed.

Should the Conservatives form the next government, the policy will presumably return whether through primary or secondary legislation. Before it does, the Ministry of Justice should take a step back and conduct a proper review of sentencing unlike this summer’s charade.

The MoJ redeemed itself a bit by preparing a detailed impact assessment about the longer periods of imprisonment. These highlighted not only the financial costs of the policy but the possible effects on prisoners and their families, on stability in prisons and on the lengths of sentences imposed by courts. In the light of these broader concerns, the House of Lords declined to be steamrollered in the way that Mr Buckland presumably hoped. It performed a valuable service.           

Don't Forget Rehabilitation: Remember It in Everything A Prison Does

Sir Martin Narey’s call for prisons to “Forget Rehabilitation” was no doubt designed to provoke a reaction and in that the former head of the National Offender Management Service has succeeded. Canadian expert Frank Porporino found Narey’s presentation at the conference of the International Corrections and Prisons Association (ICPA) in Buenos Aires saddening and puzzling because as Narey himself admitted he had, as prisons chief in England and Wales, overseen a big  expansion of education and psychological programmes  designed to help prisoners change their behaviour. The disappointing results of the latter have led Narey to conclude that “the real and moral challenge is to make imprisonment humane”.

Much of what Narey had to say was uncontroversial. Prisons should be clean, orderly and respectful institutions and ensuring decent everyday conditions and treatment should be given a higher priority than they often are. His warnings about the risks of jails descending into brutality and violence were powerfully made. But is he right that humane containment is the best that prison should strive to achieve?

International law makes clear the “the penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation”, and while the reality of most prisons worldwide may be far removed from that lofty ideal, that’s no reason to dismiss it. There’s good evidence that education, vocational training and work in prison reduce recidivism and as a recent manual I drafted for the UN recommends, these need to be expanded not forgotten. It would be a disaster if Narey's headline deters the developing countries represented at ICPA from doing so.

Moreover, without a strong emphasis on rehabilitation, how will prisoners in any jurisdiction be able to prove to a Parole Board that they have made efforts to reduce their risks of re-offending? What conclusions will  politicians concerned about violent crime draw about how to protect the public?  And how will Prison Services be able to attract the optimistic and skilled staff to work with the people in their care?

Other presentations at ICPA have stressed the need for a more humane and hopeful philosophy and practice in prisons-  not in opposition to rehabilitation but as the very foundation of it. A public health approach to incarceration in the US state of Oregon has seen dramatic improvements in wellbeing of prisoners and staff. There and in other states, new practice is informed by prisons in Norway where staff are trained not only as guards but as “facilitators for rehabilitation” and mentors.  A similar initiative in Pennsylvania is having to overcome the hurdle of regulations prohibiting fraternisation between staff and prisoners. But good relationships between staff and prisoners is increasingly recognised as the key not only to safe prisons but ones where prisoners can use their time positively.

Shadd Maruna, in a magisterial lecture demolishing the false science of static risk assessment tools, encouraged instead an approach which takes a much fuller account of what has happened to prisoners in their lives -which in many cases includes the experience of trauma.  This is not just a matter for psychologists and social workers but for everyone working in prison and making decisions about prisoners.

The emerging consensus is that prisons need both to treat prisoners with dignity and respect and to offer them opportunities to come to terms with what they have done and chart a new course for the future. In fact, you can’t have one without the other. As Debbie Kilroy, the Australian activist and former prisoner told the conference, it's only when prisoners are treated as people and not defined by the worst thing they have done, that they ill take up the opportunities to change. 

So, while it may be right to forget the false promise that a short psychological course can repair deep seated problems of disadvantage, a rehabilitative culture should remain a central aim for prisons, alongside all that is required to make it a reality.

If You Build it, They will Come

When Boris Johnson announced in August that 10,000 new prison places would be built, commentators- myself included - were quick to point out that similar plans had been made as far back as 2015. What’s very different is that the new policy is not about relocating prisons from outdated city centre sites to modern new facilities. It’s about adding 12% or more to prison capacity in England and Wales. The Permanent Secretary at the Ministry of Justice, Sir Richard Heaton told MPs this week that compared to the 85,000 places in prisons today, by the mid 2020’s “the total prison capacity we anticipate ….to be between 95,000 and 105,000.” His boss Lord Chancellor Robert Buckland confirmed that he was not planning any prison closures.

Back in August the MoJ estimated the numbers inside would be lower in 2024 than at present . They estimated a 5% likelihood it will reach or exceed 87,300 in June 2023.So why do we need all these additional places?

One good reason might be to reduce overcrowding in existing prisons so that prisoners are held in a “good decent standard of accommodation” that the Prison Service aspires to provide. There are currently only 75,000 places in use that provide this kind of uncrowded accommodation. So almost all of the new building could be used to improve the basic conditions for a prison population of the current size. But in their evidence to the Justice Committee, the MoJ made no reference to this worthy aim.

Instead they justified the increase in prison places in terms of first, a surge in prison numbers resulting from the 20,000 more police officers who will be available to catch more offenders; and second the longer portions of sentences to be served by sexual and violent offenders.

On the impact of more police, Sir Richard admitted it’s “hard to convert those into prison places” because we do not know  if they will be pursuing “high-level crime, low-level crime or crime that results in imprisonment”. Buckland took the view that “we will see quite an increase in volume crime detection. That might not necessarily result in prison sentences; it might result in more community sentences”. The Justice Committee failed to press him on whether investment in probation and other community-based services wouldn’t be a wiser course to take.

The increased portion of sentences served in prison by violent and sexual offenders (not considered dangerous)  is estimated to require 2,000 more prison places by 2030.  Between the Queens Speech on Monday and the Committee hearing on Wednesday, the Government decided to restrict the group having to serve two thirds from those getting 4 year plus sentences to 7 years plus.   Buckland told the Committee he is “trying to make sure that we create a system that is supported by the resources I need.”

The decision that these prisoners should serve a longer portion of their term was ostensibly made following a Sentencing Review announced by the PM in August. Buckland told MPS that the Review “took the form of very thorough advice to Ministers. It is an internal document”. So, nobody will see it.

As for the Review, Sir Richard had already explained to the Prison Reform Trust that “Given the time constraints it has not been possible to undertake any formal public engagement, but we have conducted telephone interviews with some key stakeholders to give them the opportunity to give their views.” The MoJ have listed the 13 organisations they spoke with in the review.[1]   Noticeable by their absence are any sentencers, and the Sentencing Council. This is despite the Government’s Impact Assessment (IA) acknowledging that “it is possible that as a result of this policy the length of sentences handed down by the courts could be reduced in view of the longer period to be spent in prison”. 

The contrast between the depth and detail of the IA which is consistent with the Treasury Green Book Guidelines on policy development, and the superficiality of the Review (which is far from it), is frankly embarrassing. The IA notes "potential transitional risk to prison stability" with  increased tensions in prison establishments, with consequent impacts on prisoner violence or self-harm; and possible increases in the risk of re-offending; plus a cost over ten years of £710 million. 

Woeful too is the lack of proper consultation about the need and use for more prison places. The Green Book recommends that “research, consultation and engagement with stakeholders and the wider public, should be conducted at an early stage” of policy development. “This provides understanding of the current situation and valuable insights into potential improvements”. The rate of imprisonment in England and Wales - 141 per 100,000 of the population- is second only to Scotland’s among the countries of Western Europe. We need to find ways of moving down that league table of shame not cementing our place near the top of it.

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[1] The Association of Youth Offending Team Managers; CLINKS; Criminal Justice Alliance; HM Inspectorate of Prisons; HM Inspectorate of Probation; Howard League; Independent Advisory Panel on Deaths in Custody;NPS Victim Liaison Officers; Parole Board; Probation Institute; Revolving Doors; Standing Committee for Youth Justice; Victim's Commissioner (Office)

UNlocking Children from Custody

Today, the UN General Assembly will hear the results of the Global Study on Children Deprived of Liberty. Worldwide, at least 410,000 are held in detention every year in remand centres and prisons   If you assume the study’s findings and recommendations are not really relevant to a wealthy country like the UK, think again. As the study finds, being locked up means “deprivation of rights, agency, visibility, opportunities and love”; and there are all too many examples of that here in the UK.

Take the Safeguarding Review published last week by the Youth Custody Service (YCS). It provides an honest and down to earth assessment of the “harmful cultures that have become inherent in parts of the system” in England and Wales. “Custody” the review admits “provides a potentially traumatic environment and establishments with a punitive, macho, hierarchical culture can further impact on vulnerability and risk of harm.”

The UN Study notes that “States have an obligation to apply child friendly conditions” and children consulted for the study specifically expressed concerns about the lack of child-sensitive procedures. In England and Wales, the YCS admit  “there is a lack of child focus at strategic level, thus all subsequent levels of governance within Young Offender Institutions (YOIs)”, whose rules and policies talk about prisoners and inmates rather than children. The Safeguarding Review reports on staff wearing uniform of adult establishments; young people unable to access confidential services such as psychology and social work for security reasons; and a young person prohibited from playing the guitar due to concerns around the use of its strings as a potential ligature with risk aversion “driven by financial penalty rather than a child focus”.

The Safeguarding Review makes many sensible recommendations to embed that focus in staff recruitment and training and the day to day running of establishments- although it’s not clear if they have all been accepted. Some are shockingly basic- for example that all children and young people should have appropriate clothing to their size and the weather conditions; and that the YCS should develop a Strategy for Females.

Some of the findings are troubling too; that children can be allocated to and received by institutions without information about their needs and vulnerabilities- a  “no docs” scenario; that staff engage in behaviour and language that they also apply sanctions to young people for; and keeping certain young people apart – the standard approach to keeping them safe “can increase risk of violence”.

There’s clearly a long way to go to creating the rehabilitative culture the YCS is striving for. The YCS Director welcomes “a refreshing first look” at what can be done to address the problems in YOIs and STCs in particularly but in truth many are longstanding, deep-seated and resistant to reform.  

That is why the Government is pinning its hopes on the Secure School- more details of which were supposed to be made available last month. Delay it seems too for Charlie Taylor’s Restraint Review which was due to report in the summer.

But the evidence is mounting that while some institutions are undoubtedly better than others- the Safeguarding Review makes clear that Secure Children’s Homes are considered the best model of practice within the sector-, the fundamental approach is wrong. The Prison and Probation Inspectors have yet again reported on “children … not being effectively prepared to re-enter their communities and start to live productive and safe law-abiding lives The services that they needed on release were often not in place to help them resettle, and the risks that they posed were not always sufficiently managed in their early days in the community”.  Nor had those risks been addressed while in custody. So, what is the point?

The failure of custody is one reason why the UN Study has recommended that States should develop and implement a strategy for progressive deinstitutionalization which includes significant investments in family and community-based support and services. States should prioritise the closure of large-scale institutions and avoid the creation of new ones. Plenty of relevance in that .

    

Conference Calls

As an unusual Party Conference season draws to a close, what have we learned about where the parties stand on criminal justice and in particular sentencing?

The Lib Dems confirmed their commitment to reduce the prison population not only by pledging a presumption against prison sentences of less than 12 months, but cutting numbers remanded and recalled to custody; ending imprisonment for drug possession and repealing mandatory sentences for possession of knives and corrosive substances. So far so good, although their proposal for weekend and evening custody looks impractical as it is unnecessary.

Labour’s offer on short jail terms is more modest -a presumption to end ineffective "super-short sentences" of six months or less for non-violent and non-sexual offences. Much more ambitious is their pledge not only to end future prison privatisation but to bring existing PFI prisons back in-house- although Jack Straw’s similar promise prior to 1997 foundered on Gordon Brown’s spending cap. Labour plans to fund diversion for women properly looks more doable.

As for the Conservatives, only three months ago Robert Buckland told the Justice Committee that he believed “the British public are with us on this; they do not want to see their taxpayer resources wasted on short-term prison sentences that do not reduce victims of crime. They want to see their taxpayer money used on effective solutions”. This was not a belief the Justice Secretary chose to test with his Manchester audience however, instead telling the Daily Mail that David Gauke’s plans to scrap short jail terms have been, like Gauke, ruled out.

 Buckland used his speech to decry automatic release at the half way point of prisoners on determinate sentences as “madness”, blaming Labour’s 2003 Criminal Justice reforms. In boasting of the “great strides in criminal justice in the past nine years of Conservative Government”, he did not explain why the full review of sentencing policy carried out when the Tories took office in 2010 left the “madness” undiagnosed let alone treated.  

In fact, the 2010 Breaking the Cycle Review maintained “the basic structure of the determinate custodial sentence, because it can enable effective resettlement and public protection”. The 2010 review found that “surveys have shown that the public tend to understand the logic of the licence period once it is explained and promised steps to ensure it is better understood and explained”. Now, according to new Justice Minister Chris Philp “the public expect someone who is sentenced to serve the majority of their sentence. Releasing them at the halfway point undermines public confidence in the sentence that is handed down”. By describing the sentence in this way- as if it's only the custodial part that counts, Philp's doing just that.   

Courts have been given powers to require certain serious and violent offenders to spend more than half their sentence in prison and a longer period of supervision on release. It is these extended sentences which it seems will become applicable more widely and perhaps mandatory.  Where does that leave the need identified in Breaking the Cycle to simplify the sentencing framework and reduce elements of the law that constrain judicial discretion?

We’ d find out the reasons for the change in emphasis if the latest Review, on which these proposals are allegedly based is published. We’d see the survey evidence too about the change in public attitudes. We might also learn what plans are in store for toughening up community penalties beyond the roll out of sobriety tags announced this week. I, and many others no doubt, have asked to see the Review. But it’s now being described as  "internal," so unlikely to emerge.

What’s really needed is not Buckland's dystopian vision where "only criminals who earn their liberty should have it"; but what the Lib Dems have proposed – “a full review of sentencing with the aim of reducing excessively long sentences.” In Nietzsche’s words “Beware of all those in whom the urge to punish is strong”.

Swift but not yet Certain. New Government Policy on Prison.

There was some relief yesterday when the new Prime Minister placed the Justice brief in the experienced and relatively liberal hands of Robert Buckland. Yes, as Solicitor General he had appeared to relish appealing unduly lenient sentences, but his policy instincts are not necessarily punitive. As a back bencher, he spent a good deal of time on the Justice Committee and was a member of the Independent Parliamentarians’ Inquiry into the Youth Court which backed a more problem-solving approach to children who offend.

More importantly perhaps, Buckland's admittedly brief ministerial exposure to the prison and probation services will have alerted him to their current fragility- forcefully confirmed in the case of prisons by the latest set of performance ratings in which a record 14% establishments are of serious concern. Buckland’s predecessor as Justice Secretary was perhaps suffering a touch of gate fever himself when he informed the Justice Committee nine days ago that that he felt “we have made good progress in addressing some of the challenges that prisons face right now - on safety, security, decency, and the estate in general”. That assessment rather flies in the face of the evidence. 

Today as expected, PM Johnson told MPs that he had “tasked officials to draw up proposals to ensure that in future those found guilty of the most serious sexual and violent offences are required to serve a custodial sentence that truly reflects the severity of their offence and policy measures that will see a reduction in the number of prolific offenders”. Whatever else they might achieve, these priorities for government will almost certainly place yet more pressure on the prison service. So too of course will pumping funds into the police.

Average sentence lengths for sexual and violent offences have risen sharply since 2010- from 49 to 61 months for sex and 20.8 to 23.5 months for violence. England and Wales have more life sentence prisoners than the rest of Europe, with average tariffs almost twice as high as they were in 2003. So, what’s Johnson's thinking?

Tories have long been uncomfortable with automatic release of most determinate sentenced offenders at the half way point. Back in 2008 they pledged to “introduce honesty in sentencing so courts set a minimum and a maximum period, with no possibility of parole until the minimum has been served." Grayling and Gove mulled an earned release system. Maybe we are in for one or both of these options. Expect too, further extensions to the scope of the unduly lenient sentence scheme. 

Johnson will be alive to the electoral appeal of these kind of changes. His views may also have been shaped by his partner Carrie Symond's awful experience- as a 19 year old-  as one of the many victims of John Worboys. She certainly felt that “the justice system and the Parole Board let us down", helping to fund raise for the Judicial Review of the latter's decision that Worboys should be freed.  Can we expect further reform of the Board? 

On prolific offenders, the 2015 Tory manifesto promised “a new semi-custodial sentence …allowing for a short, sharp spell in custody to change behaviour”. Briefings afterwards revealed that so called flash incarceration will mean “persistent vandals, shoplifters and drug addicts will spend two nights in a police cell under Conservative plans”. Despite it's impracticality , is this "swift and certain punishment" back on the cards? Or can we hope for something more measured building on the public health approach?

Think tanks Policy Exchange and the Centre for Social Justice are each likely to claim the role of midwives for any policy of “swift and certain" with Crest Advisory currently working on proposals. The first two as least have extolled the virtues of Hope Probation, a tough love programme piloted in Hawaii which involves probation supervision accompanied by frequent drug testing. Failures lead to immediate but short terms of detention. Research has found impressive outcomes in terms of reduced drug use and jail time.  Because of its success, the short terms of detention imposed on programme failures require fewer prison beds in Hawaii than do the longer sentences served by those who fail normal probation supervision.  

Despite the research, I have been a bit sceptical about the wisdom of importing the approach in the UK. Some observers at least, while acknowledging the impact that Hope has had in Hawaii, question whether that is enough to justify its “correctional popularity”. Frank Cullen and colleagues at the University of Cincinnati point to “uncritical acceptance and importation of the programme to the U.S. mainland” and argue that several uncertainties about the programme may potentially compromise its effectiveness in other jurisdictions, thus offering false hope as a new paradigm.

Whatever happens it’s hard to see David Gauke’s consultation paper on limiting short prison sentences seeing the light of day. In a worst case, we'll see more short sentences for petty prolific offenders and more long ones for serious offences. Let's hope Buckland can find a way to prevent that outcome.