Wednesday, 4 October 2017

A Matter of Judgement

Earlier this week, Labour peer Lord Adonis shifted his fire from university bosses to judges. Both are often considered (and consider themselves) to be world class; but Adonis tried to use the large increase in the prison population since the 1990’s to claim that the judiciary were far from that. In a series of provocative tweets, he accused them of sins of commission – pushing up the going rate for offences - and omission- failing to stand up to illiberal government criminal justice proposals and the punitive tabloids.

Various legal tweeters rushed to the judges’ defence pointing out that it was New Labour’s criminal justice legislation which had driven up prison numbers while judges simply and faithfully applied the law as they must. As often on twitter, an interesting debate quickly descended into ridicule and abuse, albeit modest by the standards that prevail. I even got caught up in it myself. Having suggested to Adonis that the Sentencing Council – whose president and chair are senior judges-could have done more to limit prison growth since 2010, I retweeted his take that the Council “has followed the Daily Mail out of fear”. I was told by an Oxford academic that my retweet was fostering misunderstanding and I had an obligation to make clear that Adonis’s juvenile view was manifestly wrong.

Adonis may have been unfair on the Council, although it is arguable that of the matters to which they must have regard when producing guidelines, more attention has been paid to the need to promote public confidence than to the costs and effectiveness of sentences. Indeed I have argued this in a report for Transform Justice. But leaving to one side Adonis's combative and somewhat disdainful approach, what of his wider point. How culpable have the judiciary been in the matter of the spiralling prison population in England and Wales?

Mike Hough and colleagues’ detailed study of the 71% rise in the adult prison population from 36,000 in 1991 to 62,000 in 2003 found that tougher sentencing - longer prison sentences for serious crimes and more short prison sentences instead of community penalties -came about through the interplay of an increasingly punitive climate of political and media debate about punishment; legislative changes and new guideline judgements; and sentencers’ perceptions of changes in patterns of offending. So everyone’s to blame.

The study found that statistics did not lend support to sentencers’ beliefs that offenders were becoming more persistent, and committing more serious crimes, although more research was needed about that. Sentencers told researchers that they could resist pressures to ‘get tough’ from the media and the public, but at the same time, “they feel they have a duty to ensure their sentencing decisions reflect and reinforce the norms of wider society.”  It’s not clear where they learn about those norms but the study does not wholly vindicate the legal tweeters who held the judges wholly blameless for booming prison numbers.

Since 2003, it’s Adonis’s former colleagues in the Blair government who have a good deal to answer for.  David Blunkett’s monstrous IPP sentence was used far more than anticipated and new minimum tariffs for murder cases have hauled up the going rate for less lethal crimes of violence. While no doubt it’s the legislature in the dock for these prison boosting measures, could – and should- judges have done more to mitigate their baleful impact through more creative interpretation of the statutory provisions?  Discuss.


One lesson from all this is that Twitter is unlikely to be the best forum for resolving complex legal and constitutional problems. Another is that there’s something of a two nations divide between lawyers and the rest of us. Some in the legal profession, by no means all, seem disproportionately  touchy about criticism from outsiders. Those congratulating each other that their tweets had successfully “schooled” Adonis on his apparently uninformed barbs about the judiciary will I hope  be prepared to engage with the bigger questions he raises.  A proper debate about the roles and responsibilities of the legislature and judges in sentencing policy is long overdue.

Friday, 15 September 2017

Courting Trouble

There’s much of interest in the new Centre for Social Justice (CSJ) Report “What happened to the Rehabilitation Revolution? While the opening chapter’s title - “The recent history of disappointing progress”- grossly understates the scale of the current penal crisis, several of the initiatives proposed by Jonathan Aitken and John Samuels are surely prerequisites for resolving it.  Improving the numbers, training, status, pay and conditions of prison officers and fixing the failures of the remodelled probation service are now widely agreed to require urgent attention.  Ending the injustice faced by tariff expired IPP prisoners is also long overdue. If CSJ’s political connections can ensure further action in these areas, so much the better.

But what of the more controversial of the report’s ideas, in particular the expanded role it envisages for judges and magistrates.  CSJ propose that courts should monitor and review the sentences they impose, authorise recalls to prison for offenders in breach of their licence requirements, and hear applications both for early release from prison and for limitations on the impact of criminal records. John Samuels has been a longstanding champion of problem solving courts and is understandably frustrated at the mixed messages from government about their prospects.  But with tight budgets, court closures and digitisation, is the judiciary in any kind of position to take on these additional tasks? 

Despite some heroic cost benefit assumptions- based it has to be said on experience in the very different context in the USA-, there’s no doubt that increasing court lists would require something in the way of upfront funding. In his final annual report Lord Chief Justice Thomas wrote recently that “the just, effective and timely delivery of criminal justice remains of real concern to the judiciary”. Taking on more duties is hardly likely to alleviate such concerns.

There’s a broader question too about how far courts should become involved in the implementation of sentences.  There is a strong case for courts to decide whether people who don’t comply with probation conditions should be returned to jail. But there is a balance to be struck between judicial and executive responsibilities in the management of offenders. The continental system of penal execution judges may not be desirable let alone affordable in England and Wales.

Rather than invest in additional layers of judicial accountability, the government might do better to enable more cases to be kept out of court altogether.  In a forthcoming report for Transform Justice, I’ll be arguing that there is scope for diverting many more low level offenders.   Since 2010, the numbers of convictions and out of court disposals have both fallen sharply but while the former have gone down by 12%, the latter have declined by 47%.  Less than a fifth of cases were dealt with out of court last year compared to more than a quarter seven years ago.  Increasing numbers who appear in court get fines and discharges – 85% of summary offences and 30% of either way offences. Why not deal with some of these more cheaply and speedily without prosecution?  Re-offending rates are no worse and victims somewhat more satisfied. David Lammy’s report last week argued that greater use of suspended prosecution- along the lines of  Operation Turning Point in the West Midlands -could help to reverse the gross racial disproportionality that scars our system. But reviving diversion would benefit all.  


Suspended prosecution is in fact part of the government’s long term plan- seven years and counting in the making- for streamlining out of court disposals. But to work as intended, police and prosecutors will need to be able to point people at rehabilitative or restorative activities that can help them stay out of trouble – whether it’s cutting down on drinking, keeping their temper, or finding work.  Funding such approaches with funds released via fewer prosecutions is the way forward. Not problem solving courts but problem solving, out of court.  

Thursday, 24 August 2017

Why the Punitive (Re)Turn?

Why is the prison population increasing? Latest projections show numbers in custody are likely to increase by 1600 – at least one new prison’s worth – by 2022. The main reason is not that more and more people are being caught and punished for criminal offences. It’s that higher and higher proportions of those who are, nowadays receive custodial sentences. And their prison terms are getting longer. Both trends are confirmed in the latest criminal justice statistics. These show that it’s not only sexual and violent offenders who are facing tougher sanctions in court. Less than a quarter of people convicted for theft in 2010 went to jail but last year it was almost 30%. Average prison terms as a whole have gone up from 13.7 to 16.6 months over the last seven years.

It’s possible that courts are seeing more serious cases or more prolific offenders than before. That’s difficult to know in the absence of detailed research. But the halving of the cautioning rate – the proportion of offenders who were either cautioned or convicted who received a caution- suggest that many more low level cases came to court in 2016 than 2010.

There are other more likely explanations for this new punitive turn. The dismantling of the probation service may have made non-custodial sentences it supervises less attractive to judges and magistrates. Since 2010 the proportion of indictable only crimes- the most serious- dealt with by a community order or suspended sentence fell from a quarter to a fifth. For either way offences, market share for these two disposals fell from 42% to 37%.

Another culprit may be the Sentencing Council. A recent analysis has found that the guideline it produced on burglary offences in 2011 may have inadvertently encouraged courts to deal more severely with all types of breaking and entering. Although the Council did not intend to inflate the going rate, expanding the definition of the loss to the victim in such cases and creating a long list of factors signalling greater culpability by the offender seems to have pushed courts to punish offences more harshly than before.   As I argued in a report for Transform Justice last year, the Council has not only failed to curb the growth in imprisonment-its original purpose. It may have made matters worse.

A poll published this week confirmed what has long been known- that the public is much less punitive than is often supposed. Asked what they believe would be most effective in cutting crime, more police on the streets, better parenting, greater discipline in schools and better rehabilitation all score highest. Just 7% of the public think the answer is more people in prison.  Yet without some bold policy making in the Ministry of Justice, that’s just what we are going to get.

    

Wednesday, 2 August 2017

Fired Up about Prison Reform

It’s less than 18 months since David Cameron cast prison reform as “a great progressive cause in British politics”. His vision was for “the leadership team of a prison to be highly-motivated, to be entrepreneurial and to be fired up about their work”. The President of the Prison Governors Association is certainly fired up alright but less with enthusiasm than exasperation. I can’t recall such a broadside being delivered by a public servant to her bosses- nor one that is so (almost) wholly justified- as that which was delivered by Andrea Albutt today.

Cameron’s hubristic vision of a modern, more effective, truly 21st century prison system looks as far away as ever. The levels of violence, drug-taking and self-harm which he thought should shame us all in February 2016 have continued to soar.

So what’s gone wrong? Three things. First was the failure- wilful or otherwise - to see the severity of the impact which budget reductions would make on the stability of prisons.  There was never really a “Golden Years pre austerity” as Andrea Albutt has put it. But all too often, “too great a degree of tolerance of poor standards and of risk” as Robert Francis QC said of Mid Staffordshire NHS Trust. Such a tolerance was one of the reasons why numerous warning signs did not alert the health system to developing problems in Mid Staffs. The same is true of many prisons which were never truly stable enough to withstand the level of cutbacks, particularly when Ken Clarke’s efforts to reduce the population were shelved.   

Second the government applied a formula approach to reform which ignored some of the distinctive challenges of prisons. Cameron promised to "bring the academies model that has revolutionised our schools to the prisons system". It was a mistake. An approach is needed that recognises that individual prisons cannot float free in the same way as schools and their customers have no choice over which establishment they attend. Given the risk averseness of government, whatever ministers may say, innovation is always likely to be closely controlled from the centre. The so called empowerment agenda has, says Andrea Albutt, yet to gain any traction, with governors now accounting both to their headquarters and the Ministry- the result of a ‘perverse’ severance of policy from operations which has so far added cost but little benefit.

Third there has been an optimism bias about the reform agenda. I’m not sure whether Maslow’s hierarchy of needs is still in vogue, but it should have been obvious that without safety and security, loftier ambitions about rehabilitation have no chance of success, however flowery the rhetoric. Too many stakeholders have been taken for a ride. The National Audit Office for example, will presumably look back with some embarrassment on their 2013 assessment that "the strategy for the prison estate is the most coherent and comprehensive for many years, has quickly cut operating costs, and is a significant improvement in value for money on the approaches of the past". Their view that the Ministry of Justice make good use of forecasts of prisoner numbers and have good contingency plans is flatly contradicted by the PGA’s view that the recent rise in the population, unforeseen by the statisticians in MOJ, has left virtually no headroom in prison spaces.

So what to do? First to stabilise the population, create that headroom and make a dent on overcrowding, some kind of early release scheme should be introduced while longer term plans to reduce the population are put in place. There’s no shortage of ways of doing that -only a shortage of political courage to do so. The new Secretary of State for Justice needs to show that. 


Second, some structural changes. Shifting responsibility for juveniles out of the MOJ and prisons into the education ministry; a Youth Justice Board for young adults, a new body to deliver alternative accommodation for elderly prisoners. Devolving financial responsibilities for prisons to local areas.  They won’t produce quick fixes but could help take the pressure off an overburdened prison system in the medium to long term. 

Finally, capable prison governors working in Whitehall should be returned to the front line and experienced staff who have left the service in the last five years lured back into it whatever it takes. Plans to recruit more and better qualified staff are promising but will take time the service has not got.  Some of the capital resources intended to build new prisons should be converted to revenue to pay for staff .There is growing scepticism that the £1.3 billion secured from the Treasury for new prisons can be spent by 2020. Some of it should be used to repair the current arrangements rather than establishing new ones.

In less than three months, the largest annual gathering of international prison professionals takes place in London for a week of discussions about “Innovation in Rehabilitation: Building Better Futures”. Its focus is on improving outcomes for prisoners. But that won’t happen unless they are improved for prisons first.


Tuesday, 18 July 2017

Prisons- a Collective Failure?

As part of the celebration of the life of Nelson Mandela, today has seen efforts to promote the rules bearing his name which seek to establish minimum standards for the world’s prisons. The first of these rules states that “the safety and security of prisoners, staff, service providers and visitors shall be ensured at all times”.

How shameful therefore that today also saw the Chief Inspector of Prisons publish a damning indictment of the prison system in England and Wales. A year ago, in his 2015-16 report, Peter Clarke found that too many prisons had become violent and dangerous places. Far from seeing improvements since then, things have got even worse with “startling increases in all types of violence”. Surely, it is- or should be- a national scandal that there was not a single establishment that Clarke inspected in 2016-17 in which it was safe to hold children and young people.

There may be some satisfaction but limited value in allocating blame for what is in truth a collective failure over the last seven years. Successive Justice Secretaries since 2010 should carry the bulk of the can. In the Coalition years, Kenneth Clarke made a gung- ho financial settlement with the Treasury which he failed to adjust when his plans to reduce the size of the prison population crashed and burned. His successor, Chris Grayling focussed on making the prison system “cheaper not smaller” by allowing it to remain largely publicly run in return for reckless staff reductions. The Lib Dem Coalition partners were silent throughout.

Post 2015 when prison reform allegedly became a top social justice priority, Michael Gove was allowed to pontificate endlessly while conditions in jail continued to deteriorate. It’s perhaps only been Liz Truss who came close to recognising the scale of the crisis and started to get staff back on the landings.

There are questions too for the senior officials in the Ministry of Justice who could arguably have put more obstacles on the path to destruction. Exactly ten years ago, the Labour government were forced to release prisoners 18 days early to combat overcrowding.  Ministers took flak for the End of Custody Licence Scheme but had been told by officials that the system couldn’t cope without it. One would like to think today’s generation of prison bosses at least suggested something similar. The Youth Justice Board too fell asleep at the wheel of the children’s secure estate and has now been relieved of those duties.  

In truth, there are uncomfortable questions about the arrangements as a whole. Can a monitoring system said to be working when most Inspectorate recommendations are not achieved, and the Ombudsman finds prisons unable to learn lessons from his reports? It is dispiriting that pre 2017 election plans to strengthen monitoring bodies and require a response to what they say have been scrapped.

On the wider front, the Justice Committee has found it hard to hold ministers to account in Parliament. Perhaps like some of civil society they have been taken in by the grandiose rhetoric around prison reform. While looking at the stars they have forgotten that prisons are in the gutter.   

Peter Clarke says, without conviction, that he hopes sharper responses to his Inspectorate reports can be realised through administrative directions. For all our sakes, a much more comprehensive set of answers are required to the grave charges he makes in his annual report.    

Wednesday, 12 July 2017

Satellite Tracking of Offenders - Pie in the Sky?

The National Audit Office Report on recent efforts to expand electronic tagging paints a sorry picture of failed procurements, contract disputes and wasted public money including £60m of sunk costs. The report finds the new generation electronic monitoring system (EM)– which both enforces curfews by verifying whether an offender or suspect is at home and a location tracking function -will be five years late if it gets going by next year.

Whether this is realistic or not “will largely depend on the plans of G4S, the new preferred bidder for the tags”. It’s hard to understand how the controversial private security company is still involved in this field at all. For one thing, they are under investigation for fraud following the 2014 overbilling scandal- one of the factors identified by the NAO as contributing to the delays in the new system. Should criminal wrongdoing be proved, could they really continue with the contract?  And while G4S’s future role seems to be limited to providing the tags themselves, only last year faults were found with these. As a result enforcement action may have been taken against offenders or suspects in response to false tamper reports.

What the NAO report doesn’t do is make a broader and longer term assessment of the contribution that EM has and could make to criminal justice. If they had, they’d find the delay in getting location tracking off the ground is closer to fifteen years than five.   In 2004, with the prison population at 74,000, then Home Secretary David Blunkett promised that satellite tracking technology could provide the basis for a 'prison without bars', potentially cutting prison overcrowding, and expensive accommodation. Plans were announced for the 5,000 most prolific offenders in England and Wales to be tagged and tracked using the global positioning system (GPS). Pilot schemes were duly arranged and evaluated with magistrates and District Judges finding tracking “a helpful sentencing option”.

Since then, while the prison population has increased by 11,000, the NAO found that the average number of subjects having their movements tracked using GPS in 2016-17 was …20. It’s true that more than 10,000 people are subject to curfews of one sort or another and some – particularly those on Home Detention Curfew- would otherwise be in prison.

But for whatever reason- political, technological, administrative- the promise of tracking as a way of emptying prisons has simply not been delivered. When I put this point to a provider of EM recently, I was told something to the effect that only 2% of households had fridges in 1950. Success, it seems is just around the corner.

An excellent recent study of EM concluded that it has universal appeal, with its chief purpose being “its perceived ability to bring about cost savings by operating as an alternative to prison”.  But as the NAO finds “there is still limited evidence"about its effectiveness. While their report documents a shocking history of failure to organise EM properly, it avoids the bigger question about the role it is expected to play in the criminal justice system in England and Wales.

Wednesday, 21 June 2017

Prison Break

Why has the government junked the prison bit of the Prison and Courts Bill? There seem to be three main possibilities.  

The first is that with big issues like the purpose of prisons and the role of the Secretary of State in running them due to be determined, ministers didn’t fancy depending on mavericks like Philip Davies MP let alone the DUP to get their way. The Tory party has always had its Michael Howards as well as Douglas Hurds and the risk of being held to ransom by hardliners – and having to rely on Labour votes to get their way- simply wasn’t worth the candle.  Besides, the key to sorting out prisons-so this theory goes- doesn’t lie in a new legal frameworks but putting staff boots back on the ground as the new Justice Secretary told us in his open letter today.   

Theory two is that when Theresa May and her people asked what was in the bill, they were told that inspectors would get greater powers and ministers would have to respond to their criticisms. To which came the reply why on earth are we making another rod for our own backs? More transparency and accountability are the last thing we need just now.

Option three is that Mrs May is simply no prison reformer or at least not in the grandiose Cameron/Gove mould which gave shape to the thinking behind the Bill. She may be an instinctive hardliner herself but her record on social issues defies that simple characterisation.  More likely in her weakened state she has realised that as far as the public is concerned, there are no, or few votes in prisons.  With crime rising once again and what maybe a growing threat and reality of terrorist violence, reform and rehabilitation of prisoners is unlikely to help her government’s popularity in the country.

Whatever the reason- and it may be a bit of all three- within 18 months prison reform has been marched to the top of the hill and back down again. Mr Lidington’s letter promises that the work of making prisons places of safety and rehabilitation goes on. Maybe that is better done away from parliamentary and public gaze. But it feels, as the Chief  Inspector of Prisons  has said, a missed opportunity.    

Tuesday, 13 June 2017

The History Boy

New Justice Secretary David Lidington has strong links with the past. For one thing, he gained a PhD by studying the enforcement of  penal statutes in the 16th Century. More recently, he worked as a special adviser to Douglas Hurd in the Home Office from 1987, in the days when the Home Secretary was responsible for penal policy and for the prison and probation services which gave practical effect to it. Hurd is remembered as a liberal although preferred to describe himself as pragmatic. While Hurd paved the way for the 1991 Criminal Justice Act which sought to limit custody, it was his successor David Waddington whose White Paper included the famous (though surely flawed) axiom that imprisonment can be an expensive way of making bad people worse.

As Hurd’s SPAD, Lidington will have been familiar with many a prison crisis. Almost thirty years ago, Hurd had to tell the Commons that prison numbers had risen by 4000 in twelve months pushing the population more than 9,000 above its uncrowded capacity. With 600 prisoners in police cells, Hurd had to announce a range of short and long term measures to avert disaster;  a series of disturbances the previous year prompted  Hurd to tell MP’s "of the delicate balance between order and disorder in our prisons.”

I don’t know what if any part Lidington played in putting together the remedial plan which emerged. It included an accelerated building programme, the introduction of the private sector and the opening of an army camp. There was also action to reduce demand for prison places- a more generous regime of early release pending a wide ranging review of parole, remission and post release supervision to be undertaken by Mark Carlisle QC. 

The package provided short term relief but three years on the Strangeways riot showed it to have been a sticking plaster at best.

As Lidington takes up the reins, he will want to avoid history repeating itself. He already has a building programme in place, so it’s demand rather than supply he needs to look at. While the prison population has been stable for the last seven years, prisons are still overcrowded. He and Hurd managed to get the numbers down from 51,000 to 45,000. Could Lidington achieve a 10% reduction and bring an end to overcrowding?


Back in 1987, one reason for the sharp rise in numbers was an increase in the average length of custodial sentences passed by the Crown court.   Sentence lengths have risen recently too.  One lever that’s now available is the Sentencing Council. Lidington should ask the Chair how he plans to reduce sentence inflation. He should also find some long grass into which to kick the manifesto plan to extend the unduly lenient sentence scheme. 

More positively, Lidington should look seriously at the pledge to devolve criminal justice responsibilities to metro mayors and Police and Crime Commissioners.   Building local incentives to reduce the need for imprisonment should be a long term aim. He will probably have to stick with (and invest into) the reformed probation landscape in the short term. But planning a stronger and more stable set of arrangements for the future should be an important priority.

Thursday, 18 May 2017

Come What May

In February,Theresa May quipped that when she was at the Home Office she used to say of Justice Secretary Ken Clarke “I locked ’em up and he let ’em out”.  Fears of a tougher approach to criminal policy in the Conservative manifesto have largely been allayed- continuity is the order of the day. While that may be a relief, it’s disappointing to see retained the policy of extending the scope of the Unduly Lenient Sentence Scheme “so a wider range of sentences can be challenged”.  Given recent increases in sentence lengths, reviewing the work of the Sentencing Council would have been a better way forward.

The prison reform legislation interrupted by the election looks set to continue with an additional much needed plan to reform the entry requirements, training, management and career paths of prison officers. Alongside efforts to attract graduates to work in prisons, this suggest a welcome recognition of the need to invest much more in prison staff. Figures out today show a large increase in prison officers leaving their jobs; almost a quarter today have less than two years’ experience in the work.  The pledge to reduce the disproportionate use of force against Black, Asian and ethnic minority people in prison, young offender institutions and secure mental health units represents an overdue commitment to address racial injustice inside prison as well as outside. There's a good idea to encourage employers to take on ex offenders via a 12 month National Insurance break.

As for non-custodial measures, there are promises to create a “national community sentencing framework” and introduce “dedicated provision” for women offenders- whatever they might entail. The drafters of this section seem to have taken on board Churchill’s view that manifestos should be a lighthouse not a shop window.  

There is a bit more clarity about increasing the role of police and crime commissioners. They will sit on local health and wellbeing boards, enabling better co-ordination of crime prevention with local drug and alcohol and mental health services. There’s the prospect too of “greater devolution of criminal justice responsibility and budgets to local commissioners”. With Mayors in London and Manchester keen to extend their responsibilities we could see important changes in governance
   
The Conservatives have not been averse to promising changes to police structures- bringing the Serious Fraud Office into the National Crime Agency and creating an Infrastructure Policing body combining Transport, Nuclear and Defence police forces. There will also be a new domestic violence and abuse commissioner.

I wouldn’t rule out further changes when, as seems likely, Mrs May forms the new government.  I still think we could see prisons moved back to the Home Office. Then the Home Secretary would be in charge of locking up and letting out.  

Wednesday, 17 May 2017

Liberal Order

One of many recent disappointments for prison reformers was how little the Liberal Democrats were able to influence criminal justice policy during their time in government. Almost none of their 2010 manifesto pledges on justice – such as a presumption against short term prison sentences - made it into the Coalition agreement. They might pray in aid a modest expansion in restorative justice. But the Lib Dems share of responsibility both for the disastrous underinvestment in prisons and rushed privatisation of probation weigh heavily on the debit side as does the absurd and thankfully abandoned Secure College for young offenders.  What are they offering to the electorate this time round?

Despite their electoral meltdown two years ago, the 2017 Lib Dem manifesto creditably retains many of the proposals from previous campaigns; the presumption against short prison terms, an extension of the role of the Youth Justice Board to young adults, and a new Women’s Justice Board. They continue to want to see Community Justice Panels and other local schemes designed to resolve conflicts and reduce harm.

As in 2015, the Lib Dems would replace the elected Police and Crime Commissioners (whom they helped to introduce) with local boards and introduce a Victim’s Bill of Rights. This would include a right for victims “to request restorative justice rather than a prison sentence” (whatever that exactly means).

The radicalism comes in the drugs field. Previous manifestos have pledged an end to imprisonment for possession for personal use, but policy on legalisation has gone no further than looking at evidence from abroad. The party is presumably satisfied that the impact on public health and crime of legalisation initiatives in the US and Uruguay are such that they can go further and so now promise a legal, regulated market for cannabis. They’d repeal the Psychoactive Substances Act and move responsibility for policy from the Home Office to Department of Health.

The ambition on the drugs front is not quite matched on prisons. Yes the plan is to transform prisons into places of rehabilitation, recovery, learning, and work, with suitable treatment, education or work available to all prisoners. Trans prisoners would be placed in prisons that reflect their gender identity, rather than their birth gender. And the overrepresentation of individuals from a BAME background reduced at every stage of the criminal justice system, taking into account the upcoming recommendations of the Lammy Review.

But unlike in previous manifestos, there’s nothing about stopping or scaling back prison building. Two years ago the party believed “that a large prison population is a sign of failure to rehabilitate, not a sign of success. So our aim is to significantly reduce the prison population by using more effective alternative punishments and correcting offending behaviour".  In 2017 they look a bit more cautious.

It’s Plaid Cymru whose manifesto has a hint of reductionism. They would block the development of the Port Talbot super prison. But it’s only a hint. Instead they would provide “much-needed” prison spaces for women and youth offenders in Wales.

More Hard Labour?


In the midst of Jeremy Corbyn’s radical plans to transform Britain, it’s perhaps surprising to learn that Labour is still “tough on crime and the causes of crime”. That most Blairite of slogans- albeit one thought up by Gordon Brown- shaped the New Labour government’s approach to criminal justice policy over 13 years from 1997. Over this period, harsher sentencing – in particular for repeat offenders, caused prison numbers to rise from 60,000 to 85,000.  Had Brown won the 2010 election, we were promised a total of 96,000 places by 2014 plus an outlandish plan to use the tax system to claw back from higher-earning offenders a proportion of the costs of prison.

How then to square Labour’s retention of the tough on crime mantra in their 2017 manifesto with a welcome vision of prison as a last resort, "the state’s most severe sanction for serious offences"?  It’s partly no doubt a matter of what the Americans call "optics"- how the policy will look, whatever it actually does. It also reflects divisions within the party about the direction of penal policy which came to a head last year when calls for an end to the penal arms race were met with scorn by the Blairite old guard. For them, the slogan will provide a welcome continuity with the past.

But for Labour’s new vanguard there are attractions too. A 2017 Labour government would of course be aiming to attack the causes of crime by the raft of measures designed to relieve social deprivation and reduce inequality.But what about dealing with people in conflict with the law? 

The manifesto’s recognition that prison is too often a dumping ground for people needing treatment rather than punishment opens up the idea that a determined and durable crime policy does not have to mean an ever increasing custodial population. A programme to expand residential and community based options for people with mental health and drug problems could provide a more effective and no less rigorous way forward.  Expansion of restorative justice –promised in Ed Miliband’s 2015 manifesto and now repeated two years on-could also offer demanding alternatives to prosecution and prison.


On prisons themselves, the 2017 manifesto promises an end to future prison privatisation and a review of Community Rehabilitation Companies but not an immediate return to public ownership of prisons or probation bodies currently run for profit. More and better trained prison staff, personal rehabilitation plans for all prisoners and a review of mental health services in prisons are proposed as ways of reversing the woeful deterioration of conditions in recent years. Sensible of course but radical enough? After all we have heard before that “the prison service now faces serious financial problems. We will audit the resources available … and seek to ensure that prison regimes are constructive and require inmates to face up to their offending behaviour”. That was New Labour in 1997, not so different from today.

Wednesday, 3 May 2017

Manifesto Destiny. Criminal Justice Ideas for the 2017 Election

Chances are we won’t get much about criminal justice in any of the manifestos. But Labour’s surprisingly Blairite promise of 10,000 more police officers suggests that domestic policy may not be entirely absent from the parties’ offerings to the electorate.  It’s a reminder too of how strongly received wisdom shapes policy development in the field, even in a radical party committed to transforming the country. Would not 10,000 mental health workers do more to address the crisis of well being which brings so many into conflict with the law – and free up police time to prevent and respond to more serious harm?    

Here are five criminal justice priorities I’d like to see featured:

1) Sensible Sentences

The prison population has been fairly stable since 2010 at about 85,000, but with a 25% fall in the numbers sentenced for serious crimes over that period, we should really have seen prison numbers go down. The reason they haven’t is that the proportion of cases being sentenced to prison has risen – from 22% to 27% -as have average sentence lengths for almost all types of crime from 16 to 19 months. Sentences have got longer not only for violent and sexual offences but for theft and drug offences too. Further sentence inflation is neither desirable nor manageable. We will introduce a strong presumption against short prison terms and require the Sentencing Council to produce a wider range of guidelines, based on fuller consideration of the cost and effectiveness of different sentences. Stronger limits will be placed on courts preventing them from exceeding guideline levels and new pilot problem solving courts will be encouraged to impose less severe punishments when it is in the interests of rehabilitation to do so.

2) Developing Youth Justice

Youth justice has offered a ray of light in penal policy, with big reductions in numbers in court and in custody in the last ten years. Now’s the time to extend the successful leadership of the Youth Justice Board and the multi-agency approach of Youth Offending Teams to the young adult age group of 18-21 year olds. For the under 18’s, it’s time too to phase out Young Offender Institutions and Secure Training Centres  and expand the number of small secure children’s homes – the only model that has proved consistently able to offer appropriate and constructive regimes for young people in custody. Responsibility for meeting the entire costs of custody for under 18's will be transferred to local authorities and Police and Crime Commissioners (PCCs). In due course local bodies will be able to commission secure and other accommodation for under 18’s rather than simply purchasing what is currently available

3) Promoting Probation

Half of the £1.3 billion being used to build four new prisons, will be used to invest in community based alternatives to custody for the 50,000 people a year given short prison sentences – through more investment in supervision provided by probation, Community Rehabilitation Companies (CRC’s) and other organisations; by improved dialogue with judges and magistrates and better links with the public. Priority will be given to keeping women and people with mental health problems out of prison environments and strengthening the availability of community and residential treatment services instead. We will conduct a genuine and wide ranging review of Transforming Rehabilitation to ensure that when current CRC contracts end, a suitable model is in place for a reinvigorated probation service.

4)  Safeguarding Prisons

We will redraft the Prisons Bill with much stronger duties on the authorities to provide decent conditions, avoid overcrowding, and treat prisoners with humanity, fairness and respect for their dignity. Prisons will be required to ensure proper staffing ratios based on 2010 levels and a task force established to drive developments in education, vocational training and work in prisons. Mental health services will be strengthened and a programme to develop life coaching for prisoners expanded across the estate.


 5) Rehabilitation Devolution

We will develop a Justice Reinvestment Taskforce to identify  the best ways of transferring responsibilities for justice services to a more local level, with a view to devolving budgets by the end of the parliament.  Police and Crime Commissioners will be invited  to chair new Justice and Safety Partnerships with CRC’s, local government, health and judicial participation which would give a greater regional voice in the system and create a commissioning vehicle to which criminal justice budgets might be devolved. Pathfinder initiatives will be agreed with Mayors in London and Manchester through which savings resulting from reductions in prison numbers will be reinvested in prevention and rehabilitation programmes.

There is a lot more that a new government should do- not least committing to take seriously David Lammy's recommendations on race equality in criminal justice; expanding the availability of Restorative Justice and considering a new approach to illegal drugs. But action on these five might help bring to an end what has been an increasingly unhappy period for criminal justice in England and Wales.    

Wednesday, 19 April 2017

What's on the criminal justice cards from a new May government?

More shocking revelations on prisons, this time from the Council of Europe’s Committee for the Prevention of Torture who visited a range of detention facilities last year-Pentonville and Doncaster prisons and Cookham Wood YOI (as well as police stations, immigration detention centres and closed psychiatric hospitals).  The report catalogues the depressing if familiar reality of prison conditions, finding none of the three establishments safe for prisoners or staff. The CPT found that locking children alone in their cell for all but half an hour a day amounts to inhuman and degrading treatment. And they were concerned that incidents of violence was under recorded, particularly at SERCO run Doncaster.

It’s possible that the report will be the last of its kind. If Mrs May fulfils her wish to withdraw from the European Convention on Human Rights, a new Conservative government will find itself with a BREXIT 2 to negotiate. The Council of Europe may be the smallest of beer compared to the EU but it’s the continent’s leading human rights organisation. We may find ourselves sharing observer status with Belarus. But at least we won’t have to worry about letting prisoners vote.

What else might we see from a new Conservative government on the justice and prison front? There’s quite a bit from the 2015 manifesto that hasn’t been achieved. The promise of new technology is as yet undelivered, whether to monitor offenders in the community, to bring persistent offenders to justice more quickly or allow women with small children to serve sentences in the community. Perhaps thankfully there is no sign of the new semi-custodial sentence for prolific criminals, allowing for a short, sharp spell in custody to change behaviour; nor of extensions to the scope of the unduly lenient sentence scheme. Will we see these commitments reappear in this year’s manifesto or will they be quietly shelved? What will happen to plans for increasing penalties for driving offences which result in fatalities?

At least one commentator thinks that the 2015 manifesto is the enemy Mrs May wishes to slay. If he is right, there is no guarantee that the prison reform measures contained in the Prison and Courts Bill will necessarily reappear. For those with long memories, the post 1992 Major Government rapidly undid the liberal justice reforms it inherited. The counterpoint of recent headlines about prisons no longer being places for punishment and violent crime surges could easily prompt  a harder approach on criminal justice in the new manifesto. Despite the flowing oratory of Michael Gove and process re-engineering of Liz Truss, the ghost of Michael Howard has never been far from the feast. While Mrs May is difficult to pigeonhole, I've always doubted whether  her appetite for rehabilitation and redemption will have been sharpened by six years in the Home office- famously described by Peter Hennessy as the graveyard of liberal thinking since the days of Lord Sidmouth. 


The CPT emphasised that unless determined action is taken to significantly reduce the current prison population, the regime improvements envisaged by the authorities’ reform agenda will remain unattainable. I wouldn’t put money on that. The best we can hope for is perhaps a steady state. Although if I were a betting man, I’d put a flutter on the dismantling of the Ministry of Justice.  It’s quite conceivable that prisons and probation will return to the Home Office. The Tories have always thought of the MoJ as a European construct ill- suited to our traditions. Prepare to welcome back the Lord Chancellor’s Department.   

Tuesday, 28 March 2017

I Told You So

American novelist Gore Vidal described ‘I told you so’ as ‘the four most beautiful words in our common language’. But for those of us who predicted it, there has been little pleasure in seeing the debacle of probation privatisation laid bare in front of the Justice Committee during its short inquiry into Transforming Rehabilitation (TR) that wound up this morning.  It’s a shame the Committee has not done a fuller investigation. As with the MoJ Probation review, no written evidence has been invited. Perhaps both Ministry and Committee knew the horror story they would get-and the fact that the plot had all been told in advance.

So badly botched are either the contracting or management arrangements that the private community rehabilitation companies complain simultaneously that they have too few cases and that caseloads are unmanageably high. One CRC director gave ‘a wrong kind of snow’ type explanation for this but it’s hard to have much sympathy- unless that is, the private sector was actively misled by the MoJ – (a serious allegation made today which should be investigated).  After all, one of the alleged benefits of privatisation is that it can transfer risks (such as changes in demand for services) from the government to the private sector.

But less than two years into the seven year TR programme, the contracts are having to be reviewed and presumably money found to bail out the multinational corporations that run most of the CRCs. Did anyone seriously believe that with the same overall budget, the new Probation and CRC set up could be expected to supervise and rehabilitate 25 per cent more offenders than the Probation Trusts they replaced? The result is that the through the gate supervision of short term prisoners post release – the supposed jewel in the crown of TR-  according to one witness amounts to “£46  and a leaflet” , compared to just £46 previously.

Despite that reality, a witness told the Committee today that courts are imposing more short term prison sentences than pre-TR, thinking offenders will now get punishment plus help. The Chairman of the Magistrates Association said last week that if sentencers do not have confidence in the robustness of the alternatives to custody, they may conclude that there is no alternative to custody. These adverse risks for prison numbers were well rehearsed but ignored during TR’s rushed implementation. Just as worrying was today’s evidence that CRCs are not getting breach paperwork to court in time.

One ray of light in an otherwise gloomy landscape looks to be in the North East where the Durham and Tees Valley CRC seems to be avoiding most of the pitfalls. It’s no coincidence perhaps that it’s a single not for profit organisation run by a consortium of local organisations where staff have designed the operating model. Unlike elsewhere morale is good. But looked at in the round it’s hard to see how the Justice Committee can find TR so far anything but a major failure of public administration.



What is to be done? The reality is that with some crutches from the MoJ review, the arrangements are likely to limp on until 2021 but unless there’s a drastic improvement, something different will be needed then if not before. In London, the Mayor’s Office wants to join the oversight arrangements of the CRC “with the intention of devolving the full contract and commissioning responsibilities  once the current contract ends”. If performance in the capital does not improve, maybe that should happen sooner. A more genuinely local approach rooted in Justice Reinvestment is surely the next chapter for probation after this tale of woe.  

Thursday, 16 March 2017

Prison : Tide Going out or Calm before the Storm ?


Two reports out this week might give cause for guarded optimism about the use of imprisonment throughout the world. The Council of Europe reported that the number of people held in European prisons decreased by almost 7% from 2014 to 2015, finding reductions all over the continent from Denmark to Greece and Lithuania to Northern Ireland. There are countries who have gone the other way too, notably Turkey- and others where prison numbers have stayed fairly stable such as England and Wales. Perhaps the most striking statistic is the difference in incarceration rates between former Soviet states on the one hand where more than 200 per 100,000 of the general population are behind bars and Nordic countries where the level of imprisonment is closer to 50.  But even Russia, by some distance Europe’s leading jailer at more than 400 per 100,000, reported earlier this week that the population in its penitentiary system is the lowest for 25 years.

The use and over use of prison – and its miserable and sometimes deadly human consequences - have been examined in more detail by the Institute for Criminal Policy Research (ICPR) in an analysis of the recent experience of ten countries across five continents. Good news comes from the Netherlands – after a tripling of its prison numbers in the 90's it's back down at the Nordic level  and renting out its empty cells- and some promising trends in South Africa and the USA where sky high prison populations are at least falling. There are a number of “could do betters”- particularly where prisons are overfilled with pre- trial detainees (India, Kenya); and a worrying punitive turn in Australia. But a particularly ugly picture is painted in Brazil and Thailand where the war on drugs has fuelled astonishing rises in the use of prison which now make them 4th and 6th respectively in the global league table of prison populations

ICPR do their best to draw lessons from the vastly differing histories, cultures and legal systems they describe, arguing that there is nothing inevitable about prison population growth. It's certainly not a simple correlate of crime rates with a host of factors inside and beyond criminal justice interacting to determine the numbers locked up at any particular time and place. Brazil and Thailand notwithstanding, the report optimistically notes a growing recognition of the harms and ineffectiveness of tough law enforcement approaches to drug misuse with other strategies gaining ground.

Equally of course, despite the financial, social and ethical costs of prison, there is nothing inevitable about the reduction in its use. Politicisation of sentencing is one of the villains identified in the report and the populist politicians currently in the ascendant make unlikely penal reformers. ICPR raise doubts about the impact of deterrence and incapacitation despite their popular appeal. The report may be right too that the penal objective of denunciation is achieved by sanctions other than incarceration, such as fines or unpaid work – potentially with much less collateral damage. But that’s a hard political sell in the best of times. And we are not in the best of times.  

Even if state responsibility for most American imprisonment means that it may not matter too much what Trump thinks about mass incarceration, the rise of the authoritarian right elsewhere threatens to stop reform in its tracks.  ICPR describe the harsh penal measures introduced by FIDESZ in Hungary. Even out of power, populism and anti immigrant rhetoric can exercise a baleful influence on the policies of more moderate parties in a penal race to the bottom. Will the Netherlands be able to retain its parsimonious use of prison over the next five years? 

What's certain is that many countries will need the workable strategies to curb the resort to imprisonment which ICPR promise to develop as a follow up to their very useful evidence report.

Saturday, 25 February 2017

Youth Custody Changes : Progress or Retreat?

What’s to be made of the changes announced yesterday to the governance of youth justice in England and Wales?  The stripping from the Youth Justice Board of its role in commissioning, purchasing and monitoring of detention facilities is not altogether a surprise. The YJB’s failure to prevent the deteriorating situation in Rainsbrook and Medway Secure Training Centres in 2015 may have been the straw that broke the camel’s back.  But the problem is more deep seated than that.  The Youth Custody Improvement Board (whose report on the secure estate was also published yesterday) was “astonished” that after sixteen years at the helm, the YJB considers the current arrangements not fit for the purpose of caring for or rehabilitating children and young people. Liz Truss seems to agree so youth custody will in future be hitched to her wagon of prison reform with a Youth Custody Service set up as a distinct arm of the new HM Prison and Probation Service.

Back in 1996, Prison Inspector Sir David, now Lord Ramsbotham recommended that the Prison service should relinquish responsibility for all children under the age of 18, arguing that its priorities meant it could not be expected to provide the level of care, supervision and support required by teenagers. Instead of implementing the recommendation, the Labour government hoped the YJB could transform the way the service looked after young people. Thanks to substantial investment, particularly into education within Young Offender Institutions, there were initial improvements. The Children’s Rights Alliance for England, normally a stern critic of conditions for detained juveniles, concluded in 2002 that ‘results have been great, in some cases near miraculous’

The improvements could not be sustained and despite substantial falls in the numbers in custody since 2008, Young Offender Institutions have struggled to provide safe decent environments let alone rehabilitative ones.  Last year’s Inspectorate report on Wetherby found for example that “the core day was not designed to meet the needs of the population. Time out of cell was inconsistent and unpredictable, and there were frequent cancellations and regime restrictions. Exercise was limited to 30 minutes each day, weather permitting”. In truth, the levers available to the YJB have been limited and its influence over what happens in  YOIs negligible compared to that of the Prison service.  

So will the new Youth Custody Service fare any better in bringing about change?  It’s certainly promising that a distinct cadre of specialist staff will be recruited and trained to work with young people. But they will need to be incentivised to stay in the sector. Historically, the prison service has not sufficiently recognised or rewarded work with young people despite its challenges and the skills required to do it well . There will need to be wider reforms; an agenda designed to make physical environments more suitable for teenagers and a review of the rules and procedures in YOIs most of which are primarily designed for adults.  Achieving cultural change may be the hardest obstacle.  When I was on the YJB, the POA objected for years to replacing traditional prison officer uniforms and were not exactly champions of a child centred approach.

Yet there were and no doubt are some excellent staff and good models of practice in the youth estate. When I left the YJB in 2006, I concluded that these could be very much more effective within an organisational ethos and structure dedicated to the secure care of young people. By that I meant a new service outside the prison system.    We are not getting that, so the question is whether transformation can be driven from within it. I have my doubts.


Tuesday, 14 February 2017

The Speech Liz Truss Should Have Given......

I am glad to be at the Centre for Social Justice because our prison system is anything but socially just. The use of prison inevitably imposes enormous financial, social and ethical costs.  In what everyone can now agree were reckless efforts to rein in the first of these costs, the second and third have risen to unacceptable levels.  As a former management accountant I am determined to do something about that.

In terms of the numbers of prisoners, it is shameful that we have the highest prison population rate in Western Europe and almost twice the rate of the Netherlands and Germany.   And while prison numbers have at least not risen since 2010, they should really have fallen. The numbers sentenced by the courts for indictable and either way offences has fallen from 370,000 to 280,000 in the last six years. It’ s true that there has been a marked increase in convictions for sex offences and the public rightly expect the most serious cases to receive a proper level of  punishment. But how, in a period of austerity, with prisons in crisis, are we to justify the fact that more than 27% of theft and burglary offences were punished with imprisonment last year compared to 22% in 2010? Or that the average sentence lengths for these crimes rose from 8.8 to 9.2 months?  There’s a similar pattern to drug offences and fraud. 

I would like to see prison reserved for the most serious offenders and sentence lengths brought into line with Western European norms.  I am instructing the Sentencing Council to revise its guidelines to give effect to that. We should aim to reduce our prison population by ensuring that the upper limits of the revised sentencing guidelines are not exceeded by the courts and by encouraging alternative problem solving approaches and restorative justice wherever that is justified. In many cases this might involve a more lenient approach than some might like but we desperately need a more varied and effective approach to the complexity of crime so that victims, offenders and the public get better results.

In drawing up guidelines, the Council must look at the cost and effectiveness of sentences. I have to say on those criteria, I am not convinced that all of the people that currently go to prison need to be there, or be there so long. Of the 77,000 people sentenced to prison for the more serious offences last year, 28,000 were sentenced for theft and burglary. More than 30,000 of the 77,000 were sentenced to 6 months or less. I’m pleased that the number of short sentences has been falling but it has a long way to go. After my review of Probation reports next month, I will be looking at ways that the service can contribute to diverting many more of these short term offenders from jail.  I am also interested in exploring how elements of a prison sentence can be converted into a community based sanction. If prisoners agree to undertake a period of unpaid work in the community for example they could be released earlier from custody than they otherwise might have been.

This will help  with overcrowding which I now realise is the key problem that needs to be solved before we can regain control of our prisons and start to make them the rehabilitative institutions we have been promising.  To provide immediate respite, there will be a presumption that all sentences of up to 2 years will be suspended.  I am also taking executive action to release IPP prisoners who have now served longer than the maximum current sentence for their offence and for all post tariff cases, I will be taking to steps to ensure that prisoners only continue to be detained if there is evidence they remain a danger to the public.

I hope that these measures might give the prison system the breather it needs. I might be accused of a quick fix but I believe I am taking the necessary urgent action to address what is an emergency while laying the groundwork for a sustainable future.  To inform longer term plans I have established a Justice Reinvestment Task Force which will report by the summer on how to establish direct financial incentives for local agencies to spend money in ways which would reduce prison numbers. I am not convinced that the costs of imprisonment should continue to be borne at national level.  At the end of the day, prison is only a small part of the answer to crime.    


Thursday, 9 February 2017

NOMS to HMPPS: Rebadging or Real Reform ?

So the National Offender Management Service is no more, to be replaced by Her Majesty’s Prison and Probation Service. Is it a rebadging of what is perceived as an unloved and unlovely bureaucratic monster with a more transparent and comforting title? Or a more significant shift in responsibilities which will lead to real change?

There are undoubtedly highly positive elements in in the Truss reforms; long overdue investment in staff not only of resources but professional training and status. There will be a greater focus on women in the criminal justice system- much needed although we’ll have to see whether adding the responsibility to an existing role will bring about the far reaching reforms that are urgently required.

For some in the probation world, the hope of a quickie divorce from their forced marriage to prisons has been dashed although the new arrangements could lead to a conscious uncoupling in due course. Much depends on the review of the reformed system which will report in the spring.

But what of prisons? The Prison Safety and Reform White Paper makes no mention of replacing NOMS. It’s in the design of the reformed prison system in paragraph 68. HMPPS will be an Executive Agency like NOMS. It will continue with the core of its business – managing prisons -but be stripped of its role in commissioning services, making policy and it seems monitoring performance.  From April these functions will move to the Ministry of Justice.  Agreements between individual prisons and the MoJ will also come into play although in an unpromising start, the Prison Governors Association have advised their members not to sign them. Despite the White Paper’s promise of negotiation, there apparently hasn’t been any.

Although the new arrangements promise clarity, there are still many questions. Is it sensible to split commissioning and contract management between the MoJ and HMPPS?  Where will Electronic monitoring fit? And where will the line on policy development be drawn? The Prison service instructions introduced last year included guidance on preventing corruption, the interception of communications, faith and pastoral care for prisoners, searching of cells and the care of transgender prisoners. We have been promised a bonfire of these instructions although almost all look important and most essential. Some may be better informed by policy wonks in the Ministry of Justice but most need experienced operational input. 

One of NOMS biggest critics argued it was “dangerously out of touch with its operational heartland”. In that respect the new arrangements could make things worse not better.