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.

Young Adults in Custody- Time for Some Better Options

Recent years have seen a growing and welcome recognition of the need for a distinctive approach to young adults in conflict with the law. In January, the Lord Chief Justice, noting that “full maturity and all the attributes of adulthood are not magically conferred on young people on their 18^th birthdays”, ruled that the youth and maturity of an offender will be factors that inform any sentencing decision, even if an offender has achieved legal majority. But what about the implementation of those sentencing decisions particularly where they involve deprivation of liberty?

Paradoxically, the government looks set to get rid of the specific sentence of Detention in a Young Offender Institution (DYOI) for 18-20-year olds and the dedicated establishments where the order is served. Prison Minister Rory Stewart has informed the Justice Committee that instead of expanding these establishments to accommodate young people up to the age of 25 as the Committee has proposed , the government  will instead  “consider the continued utility of the DYOI sentence, given the changing landscape of the prison estate…. and explore whether a coordinated approach to young adults within the adult estate might supplement or replace this sentence”.

Successive governments have talked of scrapping DYOI on and off for the last ten years but consultations have come and gone without any clear decision either way. In the meantime the number of dedicated YOIs is down to three- Aylesbury, Deerbolt  and Feltham B, with the overwhelming majority of  18-20 year old men (and all women)  housed alongside adults in mixed establishments.  Recent inspections of dedicated YOIs have been poor  with successive Chief Inspectors reporting both on inadequate safety and dire levels of purposeful activity, even questioning the viability of institutions such as Feltham  being set aside for young adult prisoners.

But as an alternative,  can integrated prisons for those aged 18 plus provide a sufficient focus on the distinctive needs of young adults? Recent inspections suggest not.

 At Hull, while the prison had at least ended the unlawful practice of young adults sharing cells with prisoners over 21, “staff had little understanding of the impact of maturity levels on young adult behaviour and the prison had no specific strategy for managing the significant population of young adult prisoners.” At Wandsworth  almost three quarters of young adults said they had felt unsafe in the prison at some point and fewer than half said that most staff treated them with respect. At high security Woodhill, the fifty  prisoners under the age of 21  were dispersed across the prison. “Not enough was being done” to meet their  needs  and worryingly, inspectors had to repeat a recommendation that young adults located on the vulnerable prisoner unit should have a formal risk assessment and a plan to promote their safety on the unit.  

Young women may fare a bit better but in a rare oversight, last week’s largely positive inspection report on Styal women’s prison made no reference at all  to the small number of young adults there.

Today’s government response to the Justice Committee mentions a range of initiatives which might benefit young adults, but without great enthusiasm. HMPPS has for example “no plans to introduce a routine in-depth assessment of maturity.” Nor is there any sign of the evaluation of the six so-called Reform prisons (due in the summer) in four of which the government " were keen to establish where and how empowered governors can adapt their freedoms specifically to help meet the rehabilitative needs of this cohort of young offenders".

With so many  competing priorities in the prison estate, it is hard to see outcomes improving for young adults in the way that they need to.

Five years ago I argued in a report for the T2A alliance that we need to invest properly in age appropriate institutions  which provide constructive and purposeful regimes, therapeutic help and personal inspiration to enable young adults to put crime behind them. I suggested a Secure College model, shortly before the name was taken up for an ill judged proposal  for under 18's. Such an approach would need more funds; but resources currently spent directly on young adults in custody are less than half what's  spent on under 18’s.  With the number of 18-20’s in custody down to fewer than 5,000, there is a case for a bold initiative to develop something a lot better than the choices on offer now.

Taking Stock: More Local Control of Probation ?

Among its wonderful wealth of exhibits, Oxford’s Pitt-Rivers Museum includes a set of village stocks, originally placed on the footpath in College Lane Littlemore in March 1857. They were made especially for the punishment of a man sentenced by local magistrates to spend 6 hours in them.

The wooden stocks were built by one Richard Humphries, “Village Constable and Carpenter” and it was this that came to mind while reading Frances Crook’s powerful argument against Police and Crime Commissioners assuming responsibility for the probation service. Frances thinks it would be wrong “for an authority that is charged with overseeing policing with its investigative role also to oversee the infliction of a sentence. This creates an inherent conflict of interest, particularly if there is any element of private profit-making bodies involved.” Constable Humphries seems to prove the point.

Yet I can see greater merit than does Frances in more devolved organisational and financial arrangements for probation and indeed prisons. One of the key principles of a Justice Reinvestment approach is giving local people greater responsibility for preventing and dealing with crime. The hope is that if local agencies must meet the costs of locking up people in their area, they are more likely to take steps to do less of it.

The reconfiguration of probation provides an opportunity to incentivise this transfer of resources away from prison places and into community-based measures for rehabilitating offenders and preventing crime. At any one time, about 100 people in crisis ridden Birmingham jail are serving sentences of six months or less. Probation might work harder to develop credible and innovative alternatives for these petty offenders if they stood to access some of the savings that would result from lowering prison numbers. They might also provide interventions which would enable the police and prosecutors to keep more in the way of minor cases out of the courts altogether. 

Creating this dynamic would require a regional or local mechanism for allocating and shifting resources across the criminal justice piece. I’ve argued that this role could be played by PCCs working with local authorities in Justice and Safety Partnerships.  The Howard League’s 2009 Commission on English Prisons suggested that “with local authorities as lead partners,  .. local strategic partnerships should be formed that bring together representatives from the criminal justice, health and education sectors, with local prison and probation budgets fully devolved and made available for justice reinvestment initiatives.”

There are already tentative steps towards devolution in Greater Manchester and London where the PCC role is carried out by the mayor. But there is a case for going farther and faster. The Strengthening Probation consultation initiative , though purporting to want feedback on proposed changes to the structure and content of probation services is offering  roadside repairs on a vehicle that should be written off.  

In 2009, in arguing for directly elected sheriffs to run criminal justice, Douglas Carswell suggested that a putative Sheriff of Kent, “knowing that he was up for re-election, might rule, that instead of facing jail, shoplifters would be forced to stand outside Bluewater with placards around their necks reading ‘shoplifter’.”  While this is nonsense, there are risks in a localising punishment. But there are opportunities too.

Why we need a new Woolf Inquiry into Prisons

When Lord Woolf inquired into the 1990 Strangeways riot and those which followed, he concluded that prisons need to keep three dimensions in balance- security, control and fairness. The first two requirements had been prioritised at the expense of the third, fuelling the grievances which drove the protests.  The report into the 2016 Birmingham riot, finally released yesterday suggests that it was a lack of control which was key. The prison had seen a deterioration in the use of legitimate authority, chronic staff shortages and a corrupted system of violence reduction (VR) reps- prisoners with backgrounds in organised crime serving long sentences who policed disputes not always using peaceful means to keep order.

Lack of control was behind yesterdays’ decision to take HMP Birmingham back into the public realm- albeit temporarily. The ghastly consequences spelled out in graphic and distressing detail by Peter Clarke in his Urgent Notification letter mark a new low in the treatment of prisoners and have secured a day’s headlines at least. But what next?

There are two immediate questions to resolve. First, why did the Ministry of Justice not intervene earlier? Prison Minister Rory Stewart was told by the local independent monitoring board in May that “basic humanity, safety and purposeful activity were simply not being delivered”, and the prison service’s own on site  monitor  allegedly agreed that prisoners rather  than staff, appeared to be controlling many of the wings.   We deserve to know whether, as Peter Clarke says, someone was asleep at the wheel or whether as Stewart says yesterday’s forceful action follows an” intensive period of Ministry of Justice measures to compel improvements”. 

Second, how far is this debacle down to privatisation? Unions and Labour apart, the consensus is that the question may be a distraction.  I’m puzzled why G4S allowed the prison to descend into chaos and suffer the undoubted reputational damage. There's history of course, with recent scandals at Medway Secure Training Centre and Brook House Immigration Removal Centre  (where an independent inquiry is underway).

Apart from the disgusting conditions and unchecked violence at Birmingham , staff locked in their offices, unwilling to tackle drug misuse, and not knowing where their prisoners were at any given time, doesn’t look good for what is at heart a security company. The G4S CEO chairs the International Security Ligue, an association of private security organisations responsible for defining, establishing and maintaining the highest ethical and professional standards of the private security industry worldwide. If nothing else, he will not have been impressed by the arson attack during the week of the inspection that destroyed nine staff vehicles. The assertion by former Justice Minister Phillip Lee that “companies are currently ripping off taxpayers” also needs proper investigation.

Peter Clarke has argued for a thorough and independent assessment of how and why the contract between government and G4S has failed, without which he sees no hope of progress. The independent investigation should arguably cover the broader question about the role of the private sector.

But, like part Two of  Woolf’s report, the immediate disaster needs to be a springboard for a wider and searching look at the use and practice of imprisonment  in England and Wales. The practical response to the crisis at Birmingham  -to reduce prisoner numbers and increase staff – is a clue as to what needs to be done across the system.  

Headlines and Deadlines

Prisons Minister Rory Stewart is making headlines by offering to resign if his “Ten Prisons Project” doesn’t succeed in cutting levels of drugs and violence. It certainly seems refreshing to hear a minister put his career on the line in this way although I thought I’d heard him say something similar before. He did. Nearly seven months ago he told MPs on the Justice Committee:

“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”.

It might seem churlish to ask but when should Mr Stewart expect his  performance to be judged? On January 24^th, 2019 a year after his parliamentary offer. Or next August as he proposes today. Either way let’s hope  that the “new model of excellence” –will start to make a  real difference to life on the landings unlike so much of the rhetoric to come out of the Ministry of Justice in the last few years.

Today’s announcement puts more flesh on the bones of the strategy launched by Stewart’s boss last month. David Gauke’s 10 July speech was cleverly timed to overshadow the scathing annual report  of the Chief Inspector that followed the next day.  Is there something similar about the timing of today’s announcement?

Last Friday 10th August, the Inspectorate confirmed a BBC report that it had decided to issue an Urgent Notification (UN)  in relation to HMP Birmingham, following significant concerns raised by their inspection of the G4S run  prison . The Inspectorate  tweeted that they would not release any further information about the inspection until they had published the Urgent Notification letter they send to the Justice Secretary explaining their concerns. 

That  letter should be sent within seven calendar days of the end of the inspection on 10th August -so by the 17th of August. The fact that Rory Stewart visited Birmingham on Wednesday 15th as he put it “to follow up on the recent inspection”, suggests it’s been sent.  So why hasn’t it been published?

The protocol between the Inspectorate and the MoJ says the Chief Inspector “will publish an urgent notification letter to the SoS and will place this information in the public domain”. The MoJ document about the process says the letter will be published on the "Trigger Day"- the day the letter is sent.

Its the middle of August and people are away so that might explain the delay. I expect the letter will be published on Monday. If not , it will be legitimate to ask questions about whether the first private prison to be subject to the process is being treated  differently from the public ones which preceded it.

Private Communications

New liaison arrangements between courts and probation services came into force last week.  Much of Probation Instruction 5/2018- which like previous versions have been agreed with the Senior Presiding Judge- describes national and local procedures for ensuring effective communication and dialogue on issues of joint concern and escalation mechanisms when problems arise.  As long as someone knows the difference between the JBG, JDG and JOG, I’m sure it will work well.

Two matters stand out. First compared to earlier protocols it’s pretty Stalinist. The 2016 instruction “was not intended to be prescriptive in the method of exchanging information” at a local level, requiring only a process to provide assurance that the protocol is being followed. The new version even contains a standardised agenda for local liaison meetings in order to maintain consistency although the local judges, magistrates and probation staff will perhaps be relieved that “the degree of granularity or detail required is not prescribed”. My guess is that the arrangements haven’t been working sufficiently well and with ministers wanting fewer short prison sentences and CRCs wanting more community orders something more than a mild refresh was required.

The second point concerns the role of CRCs. I’m probably reading too much into it, but it seems like they now have a seat at the table with sentencers for the first time. In 2014 it was for the National Probation Service (NPS) to liaise between judges, magistrates and providers of probation services, providing  information about the services available in their local area. By 2016, NPS was to facilitate provision of information and presentations from local Community Rehabilitation Companies and Electronic Monitoring Services (EMS) about available provision. In the new arrangements, the CRC and EMS are expected to be represented  at the Crown Court meetings and must be at the Magistrates Court’s .

About time you might think. How can courts possibly have confidence in community sentences if they can’t meet the providers- or see what they do.  The new protocol says both NPS and CRCs should endeavour to meet requests from judicial officers to observe probation (and prison ) work in the local area.  I’m generally in favour of this sort of activity, helping to fund some of it when I ran the Rethinking Crime and Punishment Programme 15 years ago.

The problem is now that probation is provided for profit, CRC’s will effectively be making a sales pitch. They want – and probably need – more customers from the courts. And to the extent that they get them, so their shareholders will benefit.

Judges and magistrates on the other hand must be mindful that the principle of judicial independence extends well beyond the traditional separation of powers and requires that they are and are seen to be, in the words of the Guide to Judicial Conduct- “independent of all sources of power or influence in society, including the media and commercial interests”. The Guide is quite strict, telling judges they should take care in considering whether their name and title should be associated with a public appeal for funds, even for a charitable organisation. “Such an appeal could amount to an inappropriate use of judicial prestige in support of the organisation”. The Guide even suggests it may be inappropriate for a judicial office holder to deliver a public lecture or participate in a conference or seminar run by a commercial organisation.

Magistrates have been aware of possible conflicts of interest in this area. Former Chair of the Magistrates Association (MA) Malcolm Richardson told the Justice Committee last year that “there has been excessive concern on the part of some about building relationships with organisations that have a profit motive. I think that that is to underestimate the ability of sentencers,particularly magistrates, to manage those relationships”.  He may have been referring to those of us who were critical of an ill judged – and quietly abandoned-income generating scheme dreamt up by the MA in 2015 to involve private Community Rehabilitation Companies (CRC’s) investing in the MA Education and Research Network. Or he may have meant his own Association which raised prescient concerns in 2010 about the impact that introducing a profit motive for reducing re-offending might have on meeting the core aims of the criminal justice system. 

It may be that we all need to make adjustments to the realities of private sector involvement in criminal justice- and the obvious benefits of replacing short prison sentences with community orders outweigh footling concerns about  propriety. But maybe not.