Don't Look Back in Anger

Back in the early 1990’s, in one of the more disreputable periods in my career, I worked in the Home Office helping to design the new Secure Training Centres. I remember accompanying a senior mandarin to Northern Ireland to look at their Training schools.

At St Patrick’s, run by the De La Salle Brothers we were offered a glass of sherry -it was about 10.am. We watched the boys running – and in some cases hobbling- around the yard -as Brother Francis struggled to explain the legal basis of their detention and showed us bare dormitories and boxing trophies. We moved on to Rathgael, the Protestant School – run by imposing and large sharp-suited men but seemingly a bit more modern in its approach. Lisnevin – a mixed but miserable Borstal establishment down the coast completed our tour.

If its purpose was to provide inspiration, the trip was a failure. In fact, I’d worked out the main aim was to enable my colleague- who’d done time in the Northern Ireland Office- to attend a Burns supper at Hillsborough Castle hosted by Sir Patrick Mayhew.

Whether religion should play a role in secure establishments for children has become a hot topic in England and Wales with the announcement that the Oasis Charitable Trust will operate the first Secure School – on the site of the first STC at Medway in Kent. Oasis , established by the Reverend Steve Chalke runs more than 50 academy schools and a range of other social provision. According to its website, Oasis UK is inspired and motivated by the life, teaching and example of Jesus.  Chalke has said of running the secure school  “Youth jail detention centres don't work. This is a great opportunity for us to show that a Christian ethic, a Christ-centred ethic produces a different result”.

Christianity has long been involved in prison reform of course- the penitentiary after all was a Quaker invention. And whatever the religious motivations of Oasis, the organisation’s values include a desire to treat everyone equally, respecting differences. Presumably that’s a requirement for running their academies. But secure units are not schools. 

The UN Standard Minimum Rules for the Treatment of Prisoners, the  Nelson Mandela Rules say that “if any prisoner should object to a visit of any religious representative, his or her attitude shall be fully respected”. The UN Rules for the Protection of Juveniles Deprived of their Liberty give every juvenile the right freely to decline religious education, counselling or indoctrination. The Council of Europe's Rules say juveniles may not be compelled to practise a religion, follow a belief, attend religious services  or meetings, take part in religious practices or to accept a visit from a representative of any religion or belief. 

 The Secure School’s residents will probably not have any choice about whether they go there.  Last year, one in eight (13%) children in STCs  identified as Muslim - almost a quarter of those in Young Offender Institutions.

The experience of running academies hasn’t been without problems. Back in 2008, in one of them, “around 150 teenagers caused hundreds of pounds of damage after running through the corridors armed with bits of wood, smashing windows and trying to rip plasma television sets off walls”. Much more recently, in 2015 Ofsted criticised the  'limited leadership' in the Oasis academy chain, finding that disadvantaged pupils,particularly boys, make significantly less progress than their peers nationally.  The challenges of running a closed facility will be immeasurably greater than running a school.

It would not, however, be right to pre judge the organisation. We will apparently get to see the plans for the school in September though why the Ministry of Justice don't publish them now is a mystery. But I’m not sure that putting redemption at the heart of youth custodial system will produce any better outcomes than previous noble sentiments.

Why not ? Because the fundamental flaws inherent in bringing together troubled young people in closed institutions almost always outweigh the positive intentions of those that run them. Almost a quarter of allegations of sexual abuse in custodial institutions reported by the Independent Investigation were from secure children’s homes- generally agreed to provide the best type of child custody.

In its existing work, Oasis boasts an integrated ‘Community hub' model, which seeks to create a new sense of neighbourhood in communities that had previously been forgotten by society so that everyone, regardless of their background and starting point, can join together to overcome life’s hurdles. I’d be more comfortable if the organisation was extending this approach to deal with children in conflict with the law without depriving them of their liberty.    

Planning Application

"Many offenders commit crimes so serious, or so persistently, that they must be imprisoned. Custodial sentences contribute to public safety by keeping criminals off the streets". So said the Ministry of Justice’s Single Departmental Plan for 2015 -20 published three years ago. Contrast the punitive tone with the newest version of the Plan published this week.  Yes, one of the objectives is still protecting the public from harm caused by offenders. But meeting it involves not more imprisonment but building confidence in an effective probation system, reducing the use of prison and increasing the use of community and alternative sentences.

These kinds of documents are not really plans at all but broad statements of intent – yet the shift in emphasis in this one is welcome for two reasons. First, it’s a sign that the ill wind of Transforming Rehabilitation has led to probation getting long overdue recognition in Whitehall and the more careful attention it deserves. The Departmental Plan says future reform will place a stronger emphasis on the quality of relationships between offenders and probation officers and ensure offenders get access to services that support their rehabilitation; and recognise the skills and professionalism of the probation workforce. That’s some sort of reparation at least for the ideological vandalism wrought on probation in recent years, and a welcome focus on improving practice.  

Second, the Ministry of Justice has put into a planning cycle, however fragile that may turn out to be, commitments for getting prison numbers down. Okay the plan is only to “develop” options for restricting the use of short custodial sentences and “consider” ways to increase the use of non-custodial sanctions. The Justice Committee will not be satisfied with that, writing only this week to Justice Secretary David Gauke asking for more detail on the options for abolishing short prison terms and the time frame under which the Government will be taking this forward.

It must now be unlikely either that Gauke gets firm proposals on sentencing out in the next few weeks, or that he continues in post beyond that.  What this Plan suggests is that he is trying not just to leave a progressive legacy but to influence his successor’s policy choices in a sensible direction.  It may not work- it’s easy to envisage harsher penal policy forming part of a new Prime Minister’s efforts to keep their party together- damaging, unnecessary and expensive though that may be.

If the new government reverts to a  “prison works” policy , this week’s Single Departmental Plan will count for little.  As Mike Tyson put it, “Everyone has a plan 'till they get punched in the mouth”.

Sentencing Blues ?

Justice Secretary David Gauke told MPs this week that he had tried out a GPS electronic tag that had monitored his whereabouts for two days. The question is where he will be after July 22- the date a new Prime Minister will be in place -and more importantly what will become of his plans to reform sentencing.

On the abolition of short prison terms for most offences, Gauke told the Commons “we are working towards having firm proposals by the summer”.  I read that as at best a White Paper. At worst the proposals may not see the light of day.

Why? For one thing, it’s hard to see a traumatised probation  service being able to up its game in time. More importantly, a new Downing Street regime eager to reclaim Conservative supporters from the clutches of Nigel Farage, may be reluctant about -or hostile to - a policy that can be made to look soft on crime.

Conservative Home and Justice Secretaries have embraced a wide spectrum of views over the years- with hardliners like Leon Brittan, Michael Howard, and Chris Grayling, as likely to forge penal policy as the more liberal Douglas Hurd, Michael Gove and now Gauke.

Tory Prime Ministers have varied too in the interest they have shown in criminal justice. Margaret Thatcher surprisingly let Hurd (with his special adviser David Lidington) pursue a moderate Home Office agenda, culminating in a 1991 Criminal Justice Act which aimed to reserve prison for the most serious cases. By contrast, John Major’s desire to condemn a little more and understand a little less gave a green light to  Howard’s baleful notion that Prison Works- though it was actually revisions to the 1991 Act by Ken Clarke- usually thought of as a liberal - which started the punitive counter revolution. Cameron’s attachment to prison reform was as superficial as it was hyperbolic- something that might be said of Gove’s tenure as Justice Secretary  too.   

Of the current leadership contenders, for what it’s worth, I’d place Leadsom, McVey, and Raab -all from the right of the party -in the punishment camp. with former prison ministers Gyimah and Stewart, with Gove in the more rehabilitative tradition. The others are harder to call. Javid looks a far from liberal Home Secretary but has endorsed a public health approach to violence. Hancock, though Health Secretary denounced that approach, seemingly badly briefed. Hunt is socially liberal, though suggesting in 2010 that hooliganism played a role in the Hillsborough disaster raises questions. As immigration minister, Harper piloted the “Go Home or Risk arrest Vans, which he apparently doesn’t regret.

What of the favourite? A recent Telegraph piece by Boris Johnson promised a harder line, on serious offenders than “our cock-eyed crook-coddling criminal justice system” currently provides. Yet as London Mayor, he funded an interesting resettlement programme at Feltham YOI though then proceeded to overclaim its success.

Many factors influence a politician’s stance on crime as on anything else. For good or ill, ideological preferences can be modified by short term political calculation, affordability, technical feasibility even personal experience. I’ve seen it suggested that Tony Blair’s tough approach to crime was at least reinforced when his mother in law was the victim of a mugging.

It’s possible Johnson might allow a modest attempt to reduce short sentences alongside a more restrictive regime on early release for those on longer ones. Offsetting a positive reform with a crackdown elsewhere would be nothing new.

40 years ago, Thatcher’s first Home Secretary William Whitelaw tried to introduce a more generous early release scheme to reduce prison numbers but is mainly remembered for notorious short sharp shock Detention Centres.

Making prisoners serve longer will lead to a potentially large increase in the prison population, even if short sentences fall. This is what seems to be happening in Scotland where despite a presumption against short prison terms, the overall numbers behind bars have gone up. If something similar is the political price to pay for Gauke’s reforms, they could prove something of a pyrrhic victory. Lets hope its not a price that has to be paid.

Unduly Surprised?

More than a week after Rory Stewart’s promotion to the Cabinet, the Ministry of Justice has a Minister for Prisons and Probation. It’s former Solicitor General Robert Buckland – something of a surprise appointment.

For one thing it looks like a demotion. The Law Officers get paid more than common or garden ministers. Maybe the delay in making the appointment has been down to salary negotiations. We’ll find out in due course whether he’s managed to hang on to his existing terms and conditions.

There’s a question too about how well Mr Buckland’s distinguished career as a lawyer has given him the skill set to pick up and run with Stewart’s Back to Basics agenda in prisons; or to revamp the ailing probation system. Let’s hope it has. The job specification -including prison operations and industrial relations -is certainly a demanding one.

Finally, there’s his attitude to sentencing, which will be one of his policy responsibilities in the Ministry of Justice. No doubt Mr Buckland is very knowledgeable and experienced in the field. But much of his time as Solicitor General has been spent deciding whether judges have been unduly lenient. Where he has determined they may have been, he’s personally presented almost 40 cases to the Court of Appeal, arguing for tougher sentences.

How well will Mr Buckland gel with new boss David Gauke who has urged caution in continuing to increase sentence length as a response to concerns over crime? The Justice Secretary has urged “those who shape the system to ask fundamental questions such as whether our approach to sentencing reduces crime, if prisons currently maximise the chances of rehabilitation and if we should look at better alternatives to punish and rehabilitate offenders”.

That’s not something Mr Buckland has had cause to do much of in his last job and I have sometimes winced at the way he has taken credit for harsher sentencing outcomes -putting out press notices such as “Workplace groper ordered to serve community after Solicitor General intervenes” and “Burglar jailed after Solicitor General’s intervention.”  

Maybe Mr Buckland was just doing his job. And now he has a different one .

Counting Troubles

Someone- maybe President Lyndon Johnson -famously said that the first rule of politics is to be able to count. This seems to have been lost on the UK Parliament’s Joint Committee on Human Rights who earlier this month published an important report on Youth detention: solitary confinement and restraint.

The report recommends that the use of pain inducing techniques and solitary confinement of children in detention should be banned because they cause physical distress and psychological harm in both the short and longer term and are clearly not compliant with human rights standards.  So far so good, but the report is far from clear about the children it considers to be in detention.   

The report’s summary opens with the claim that “Around 2,500 children are detained by the state in England and Wales at any one time.” When I saw it, I thought the figure looked far too high and have now had a chance to look into it.

The Committee reaches the 2,500 figures by adding together four basic types of institution where they say children are detained. They are broadly correct that 900 children are detained in the Youth Secure Estate in relation to criminal matters - Young Offender Institutions, Secure Training Centres and Secure Children’s Homes. But the Committee is wrong to say that all of these are “under custodial sentences for criminal convictions”. About a quarter are on remand.

The Committee is also right that around 100 children are detained in Secure Children’s Homes (SCHs) for welfare reasons (although its not clear that all of these are aged 10-14 as the Committee claims)

It’s the Committee’s figures on children with mental health issues and learning disabilities which look seriously awry. On mental health, the Committee reports that “around 1,200 children … are detained in Child and Adolescent Mental Health Services (CAMHS) Tier 4 units, under the mental health legislation”.  The source for the 1200 number is given as NHS England, 2017–18 NHS Benchmarking CAMHS Data. This is not publicly available data but the official responsible for it has told me that she thinks there has been some mis-interpretation of it in the Committee’s report as “We did not report data on detentions of children under the Mental Health Act. We only collect data on CAMHS bed numbers and total admissions to these (most of which will be on a voluntary basis, i.e. not detained)”. 

The Committee also reports that around 250 autistic children and children with learning disabilities are detained in Assessment and Treatment Units (ATUs), CAMHS units or other inpatient units, under the mental capacity legislation or mental health legislation. This looks incorrect as well. It’s true that NHS data shows that at the end of October 2018 there were 250 inpatients under 18 with learning disabilities and/or autistic spectrum disorder receiving inpatient care commissioned by the NHS in England. But it is very unlikely that all of these were detained. The data shows that of the 2,350 inpatients of all ages in care at the end of October 2018, 1,140 (48%) were in a secure ward.

A census undertaken by NHS England of young people in secure settings on 14 September 2016 which was published last year reported that 1,322 English young people were  in secure units- 903 in the youth justice system, 107 for welfare reasons and 312 under the Mental Health Act.  There is no mention of any children with autism and learning difficulties.

Maybe I’m nitpicking and what look like counting errors or definitional muddles do not detract from the report’s main conclusions. The Committee may take the view that their recommendations should apply not only to detained children but with even greater force to other children accommodated by the state. But then they should say so in clear terms.

I always worry that if people get the basics wrong, they are likely to get other things wrong as well. If I am right, the Committee should publish an erratum about the figures and explain exactly what they understand by the term detention.  

Unlocking Children

There are two strong reports out today arguing for radical change to the use and practice of custody for children in England and Wales. The End Child Imprisonment Campaign (ECI) has called for the immediate closure of Young Offender Institutions and Secure Training Centres as it launches its "Principles and Minimum Expectation for Children Deprived of their Liberty". The Parliamentary Human Rights Committee wants to see action to reduce the need for restraint and separation, in all secure settings.

But it’s a third report- an inspection of the Young Offender Institution at Cookham Wood in Kent that shows the fundamental absurdity of locking up children in custody. Young people are brought together from across Southern England into an establishment where “complex and dynamic keep-apart restrictions that sought to keep numerous individuals away from each other had a serious detrimental impact on the services provided to young people and arguably the culture of the institution”.

In truth, there is a limited amount of new information or argument in any of the reports- how can there be when the shortcomings and contradictions of locking up children are so well known? If the parliamentarians are right that there are about two and a half thousand children in one type of detention or another in England and Wales, those on remand or under sentence – 834 at the end of February- nowadays account for only a third of them. As the ECI report says “the restriction of liberty is harmful to children, irrespective of their circumstance”, so more credit should arguably be given to youth justice practitioners for driving down the numbers in penal custody over the last ten years; and more attention should be given to the children locked up for other reasons and in other types of institutions.

Curiously, the End Child Imprisonment Coalition make no mention of the proposed Secure School which is due to open in Autumn 2020, a stone’s throw from Cookham Wood. Will it be part of the answer to phasing out prison custody or, like STCs, simply end up adding to the problem? The new school will be more than twice the size of ECI’s proposed maximum of 30 places; and it won’t be close to home for most of its residents. Whether it will meet other child care principles remains to be seen, perhaps soon - bids to run it  were due in by 1^st of February.

Secure Children’s Homes are generally considered the most acceptable form of closed facility. They provide very much better levels of care than YOIs and STCs but even so are not immune from the deep- seated flaws common to all institutions. Recent inspections have found in one a particularly high number of sanctions of single separations for some young people “resulting in significant periods where young people would have been in their rooms on their own”. In another managers did not consistently critically assess the threshold for the use of physical restraint to make sure that this is required to protect young people, or others, from harm.

The Independent Inquiry into Child Sexual Abuse (IICSA) found 242 allegations made in secure children’s homes between 2009 and 2017- lower in absolute terms than were found in in YOIs (440) and STCs (297) but not necessarily when population is considered.   IICSA reported on the number of incidents of alleged sexual abuse as a percentage of the average population of STCs in 2016 but when I asked them to provide the equivalent data for each of the three types of secure institutions - STC, YOI and SCH- ideally for each of the years 2009-2017 or for the whole period, disappointingly they said they were unable to do so.

What all this suggests is that a much more vigorous strategy- and some fresh thinking - is needed to keep children out of institutions of all sorts. End Child Imprisonment want a system in which children should only be deprived of their liberty when they pose a serious risk to themselves or others, and there are genuinely no alternative options for mitigating that risk in the community. There are dangers of unintended consequences in a purely risk- based approach and some high threshold relating to harm already caused will be essential to prevent net widening. Where the Campaign is undoubtedly right is that “the duration of any episode of detention must be as short as possible”.

To achieve that, what’s needed is a recasting of secure custody not as any kind of end in itself but as a very short term means of planning community- based interventions. This should certainly be the approach for the 300 young people currently serving Detention and Training Orders and many of the 250 on remand. A different approach might be needed to those serving longer term sentences for grave crimes – particularly those who will be transferred into the adult estate when they reach 18.  

     

Back at Cookham Wood YOI, the inspectors found some young people, because of keep-apart restrictions, spent almost as much time each day being escorted to and from activity as they did in the activity. In their view “there needed to be some new thinking about how to challenge this restrictive culture and the causes of it”. They are certainly right about that.

  

Deja Vu All Over Again

The Justice Committee has produced a compelling report arguing that criminal justice is facing a crisis of sustainability, that prison is a relatively ineffective way of reducing crime and that the government should commit to a significant reduction of the numbers sent there.

This was their 2009 report Cutting Crime: the case for justice reinvestment significant parts of which resurfaced this week in the result of their latest inquiry “Prison Population 2022: planning for the future.” There’s nothing wrong with reprising what are by and large eminently sound conclusions. It’s always encouraging to read a cross party group of MPs state that “social problems cannot be meaningfully addressed through the criminal justice system” and that “there must be a focus on investing in services to reduce the £15 billion annual cost of re-offending and prevent offenders from continually returning to prison, thereby reducing the size of the prison population”

Had the incoming Coalition government implemented the recommendations from the earlier inquiry, we would not now have been “in the depths of an enduring crisis in prison safety and decency”. Will this week’s recommendations fare any better?

There must be some doubts.  First on the government side, when asked by MPs about his proposals for reducing short prison sentences – enthusiastically endorsed in the Committee’s report- Justice Secretary David Gauke said, “I do not think it can be sorted by the end of the year”. This is what officials call kicking a policy into the long grass. There must be long odds on Gauke still being in post by then and no guarantee that his successor will also hail from the Hurd/Clarke tradition of Conservative penal policy-making.

As for Parliament, the Committee wants MPs to look more closely at the impact on prison numbers when legislating. But while decrying an ever upward trend in sentencing levels, Justice Committee Chair (and member back in 2009) Bob Neill supported the 2015  Criminal Justice and Courts Act which did just that in respect of offences relating to possession of knives and causing death by dangerous driving.  

    

In terms of public attitudes, the 2009 report argued that means must be found for encouraging and informing sensible, thoughtful and rational public debate and policy development on the appropriate balance and focus of resources. This week we heard that “Greater transparency is necessary to enable the public and others to understand the true costs and the challenging and testing nature of decisions which need to be made about public spending on prisons.” There's not much evidence that an emphasis on costs is the best way of persuading people to reduce the use of prison. Nor does it seem a particularly propitious time for a "national conversation" about crime and justice- whatever that might entail.

More promising is the Committee’s argument that improving the sustainability of the prison population will require a review of sentencing legislation which should include the role of the Sentencing Council.  This week’s report quoted from evidence I submitted that the Council had not done enough to “challenge increasing sentence lengths, nor to give more explicit assistance to courts in determining when offences are so serious that only a prison sentence will do”.  Perhaps their current mandate does not permit them to do this- but when, as seems likely, the Justice Committee looks at the Council’s role this year -ten years after it was established- it should consider what more the Council should do to reduce prison numbers and promote community-based rehabilitation- both within its existing remit and with an expanded one.