Hindsight: Is the new Prisons Minister making a Quick Fix or Long term Plan for Youth Custody?

 

Just before Christmas, in a letter from Prisons Minister Damian Hinds to the Justice Committee, the government slipped out their decision that Rainsbrook Secure Training Centre (STC) will not be re-opening, for young people at any rate. The Ministry of Justice has spent the best part of a year deciding what to do with the empty centre since its contract with private provider MTC to run the child jail was terminated in December 2021.

Rainsbrook was the second STC to open, in July 1999. Five years later, 15 year old Gareth Myatt died there in shocking circumstances while being physically restrained by staff. Initial contractor G4S continued to manage the centre and for some time it probably performed the best among the four STCs. But in 2015  inspectors reported on serious incidents of gross misconduct by staff, including managers, with young people subject to degrading treatment, racist comments, and care by personnel under the influence of illegal drugs.

A year later, US company MTC won the contract to run Rainsbrook , but Inspectors raised urgent and significant concerns about treatment and conditions in 2020 and 2021. After being told it was unsafe for residents and staff, then Justice Secretary Robert Buckland removed the 33 children held there in June 2021. A third of these were “decanted” to Young Offender Institutions (YOI), including a small number of girls who were placed at Wetherby YOI. Girls under 18 had not previously been placed in YOIs for many years.

Earlier this year, the National Audit Office (NAO) reported that the MoJ was considering re-opening Rainsbrook STC at reduced capacity and with  increased staff-to-child ratios, possibly under prison service management. This would help meet the expected increase in demand for youth custody places. But now it seems, the capacity is no longer thought to be needed.

Despite projected increases the numbers of children in custody have remained under 500 during the course of this year.  Indeed, occupancy levels remain low enough for Hinds to tell MPs that the Youth Custody Service will keep more young people in the youth estate beyond the age of 18, instead looking  “to transition young people up to their 19th birthday where appropriate”. Girls will once again be held in an STC – Oakhill, the last one operating- although some may stay at Wetherby YOI.

Strangely, annual prison population projections, normally published in November, don’t seem to have been produced this year.  So there’s no update on whether the numbers of juveniles in custody are still likely to rise to 700 by 2025. Given the volatility of the youth custody estate, any increases could put at risk modest improvements in safety and regimes seen recently.  

In the meantime, what will happen to the Rainsbrook site? Hinds wrote that wider work is taking place to determine how best the site can be utilised in the future, and, somewhat delphically, that the decision “will allow us to focus on other areas of our work”. The NAO report suggested that the MoJ had ruled out turning it into a second Secure School because of the costs and delays of doing the necessary building conversion.

Turning Medway into a suitable site for the first Secure School has taken much longer than planned- and Hinds’s letter reveals yet further delays. The Medway school is apparently on track to open in Spring 2024 - later than the November 2023 to February 2024 window officials promised MPs on the Public Accounts Committee in May . It seems odd that no funding agreement has yet been signed with the provider- Oasis Restore- that was selected back in July 2019. No doubt the MoJ will explain when they provide the Committee with an update on progress against the timetable in January 2023.

Perhaps Rainsbrook will be used to provide extra places for the men’s estate which is under so much pressure that police cells have been made available to the Prison Service. It’s close to two prisons and while its design as an STC is not ideal for adults, Medway STC was briefly used for adults during lockdown, (before work got underway to make it more suitable for children).

The Justice Committee will surely want to question Mr Hinds early in the New Year about his planning for custodial capacity both in the childrens’ and adults’ estates.   

Cell Therapy: Could Shortage of Space Inject a Dose of Reality Into Prison Policy?

Wednesday’s announcement by Prisons Minister Damian Hinds that he had requested the use of up to 400 police cells came as something of a surprise. It’s true that last week, his boss Dominic Raab told the Justice Committee that “there is a very significant capacity issue in our prisons.” But nobody followed it up with him.

Maybe that’s because five weeks ago Hinds’ predecessor, Rob Butler had told the Justice Committee

  “ the important thing is for people to know that there is the capacity, if someone is remanded in custody, that there will be a place for them and it will be the right place”.  

Quite why Butler gave such a hostage to fortune isn’t clear – he’s admitted that the sudden growth in the adult male custodial population started during his brief tenure in the Ministry of Justice which ended just two days after his unwise words of reassurance in Parliament.

Hinds tried to convince MPs that this week's statement did not reflect a failure to plan ahead but a response to “a highly unusual acute short-term surge.” He was unable to explain the reasons for the timing of this, other than implausibly blaming the aftermath of the barristers’ strike. 

A good part of the problem lies with supply rather than demand. Hinds said that the additional capacity was needed “to ensure the smooth running of the prison estate”. Given existing pressures in many local jails, a sharply rising population could make prisons unmanageable without some form of safety valve.

Take HMP Bullingdon in Oxfordshire, where 45% of prisoners are on remand. The Independent Monitoring Board who publish their annual report today say the prison continues to be chronically overcrowded, with 521 cells designed for single occupancy, mostly occupied by two prisoners. “Overcrowding also puts great pressure on communal spaces and facilities. It is incompatible with the fair and decent treatment of prisoners”.

The IMB also worry that “chronic staff shortages will begin to have a greater impact on the safety and stability of the prison”. Levels of violence, they say are still far too high and despite the introduction of an airport style scanner, the quantity of drugs coming into the prison remains high. 

So good on Prison Service chiefs for confronting ministers with uncomfortable and no doubt unwelcome truths about the quality as well as quantity of prison capacity and its ability to absorb more and more people at present. Their plans to increase that capacity through more use of “identified contingency spaces” and postponing all non-essential maintenance work are not quite so welcome.

If the crisis continues, Ministers will have to consider more radical measures. They could encourage courts to make greater use of recently introduced GPS tagging to place more defendants on conditional bail rather than in custody. Or introduce an End of Custody Licence along the lines of the scheme that ran from 2007-2010, allowing eligible prisoners serving sentences to be freed up to 18 days before their release date.

More fundamentally still, the Sentencing Council could be asked to look at their guidelines to align the demand for prison places with supply. After all that was its original though long since diluted purpose. 

Moderating sentence lengths wouldn't go down well with former School Standards Minister Jonathan Gullis who is keen to see "scumbags locked up for a longer period of time". Raab too told the Justice Committee last week that he “could fill the prisons 50% higher than they are today".

But Raab went on "the reality is that we cannot keep exponentially increasing the prison population”. Hinds said that for types of crime other than the worst “it is important that we utilise alternatives to custodial sentences”.

Is it possible for some good to come from the current crisis?

 

Notes on a Scandal: Why We Need More Secure Accommodation for Children

 

Not for the first time,  a senior judge has described the shortage of secure accommodation for the most troubled children in England and Wales as a “national scandal” after being told that last Friday 62 beds were needed and only two available.  The girl whose case the judge was considering was being cared for in an unsuitable hospital setting where most other patients were adults.

Last summer,  Supreme Court Judge Lord Stephens slammed the lack of proper provision for children who need to be detained to protect themselves or others as “disgraceful and utterly shaming". More than four years ago the most senior family judge was concerned at how many young people were having their liberty deprived in units which had not been approved as secure children's homes (SCH).  

So what’s the position? At the end of March this year, 220 approved places were available in 14 secure childrens homes in England and Wales, eight fewer places than in 2019; and 71 fewer than in 2010, down by a quarter in 12 years.  16 SCH’s have closed since 2002.

105 of the 220 available beds were contracted to the Ministry of Justice for children remanded or sentenced by the criminal courts, leaving just 115 for so called welfare cases. These are, in Lord Stephens’ words, “unfortunate children, who have been traumatised in so many ways, are frequently a major risk to themselves and to others. Those risks are of the gravest kind, and include risks to life, risks of grievous injuries, or risks of very serious damage to property”.

In their annual report for 2020-21, Ofsted said that around 25 children are waiting for a secure placement on any given day, at times substantially more. They also reported that on average 20 children from English local authorities were living in Scottish secure homes, having been placed there due to a lack of places in England. Ofsted said that the Scottish government had decided not to accept placements from local authorities outside Scotland from 2022, but I don’t know whether this has happened, further reducing available places.  The number of secure beds for children in the health service in England fell from 222 in 2017 to 188 last year.  

It's also true that some children’s needs are so complex and demanding that SCHs can’t always run at full capacity. This helps explain why a third of places in SCH’s were unoccupied at the end of March.  

So what have the government been doing to address the long standing problem? 

The 2021 Spending Review announced a welcome £259 million capital funding to increase both secure and open children’s homes, but details of the “transformational investment” is hard to find beyond a press release from the end of last year.  This says that final numbers of places in secure children’s homes being created will be confirmed in due course but as recently as June the picture has been opaque. New places require the commitment of local authorities but a clear plan setting out what is being funded over what timescale is surely overdue.

In the meantime, the Independent Review of Childrens Social Care has recommended that there should be enough SCH places not only to meet the needs of welfare cases in every region but  to end the use of “inappropriate and damaging” Young Offender Institutions and Secure Training Centres (STCs) for children in the youth justice system. At the end of June, I estimate there were 365 children under 18 in YOIs and STCs, with numbers projected to increase substantially over the next few years. While increased demand may be met in small part by 49 places in the new Secure School due to open in early 2024, accepting the Care Review’s recommendation would entail more than doubling the size of the existing SCH estate.

As the Care Review put it, “the prospect of recommending an increase in the number of secure children’s homes, or detaining children for justice and welfare reasons at all does not always sit comfortably”. But in cases where depriving a child of their liberty is genuinely necessary, SCHs provide much higher quality care than other options. Much more urgency is required to ensure there are sufficient beds to avoid placements in unapproved settings, to close Secure Training Centres and phase out prison service accommodation.   

Last year, Lord Stephens thought the scandalous lack of provision contained “all the ingredients for a tragedy”. We need to know what is being done to avert that.

Fires in Prison- A Neglected Issue of Safety ?

 

Statistics out today show an unwelcome uptick in fires in prison in the last financial year.[1] 

According to Home Office data, Fire and Rescue Services attended 840 incidents in prisons in England (plus a further 11 in what are referred to as Young Offender Units). For prisons, that’s almost 30% up on 2020-21, though thankfully lower than the year before Covid. The chart below shows pretty unclear trends over the last decade- unlike fires in hospitals (the yellow line) which have shown a slow but steady decline.

  

  

Fortunately, fatalities and casualties were reported in only about one in 10 fires, with "casualties" covering not only those with injuries requiring hospital attention or first aid at the scene but also those advised to have precautionary checks.

In the vast majority of fires, either no damage resulted, or it was limited to an area of less than 5 square metres. In most cases, evacuations were not necessary although on more than 180 occasions up to 5 people had to be “directed from a dangerous place to somewhere safe” and on one occasion more than 20 people.  In 170 incidents, people “received physical assistance to get clear of the area” involved.

More than nine out of ten prison fires were started deliberately with paper/cardboard and clothing/textiles being the commonest items ignited. Faulty apparatus or leads caused 17 of the accidental fires, misuse of equipment nine and “playing with fire” three. 

87% of fires were discovered immediately or within 5 minutes of starting, but 52 fires took between 5 and 30 minutes to discover. In 92% of incidents the fire service were called within 5 minutes. The first vehicle arrived within 5 minutes in 70% of incidents and within 20 in 97%.

While most prison fires look to be small scale and the response generally prompt, it is troubling but unsurprising to find that in 751 out of the 840 fires there was no fire safety system in place such as sprinklers. In 625 cases an alarm went off but in 81 there was no alarm and in 134 it did not operate or in fact raise an alarm.

Prisons chief Phil Copple told MPs in May that “we have about 35,000 prison places across the system that do not meet current fire regulation standards, and we have “temporary mitigations” in place agreed with the Crown Premises Fire Safety Inspectorate (CPFSI) to make sure that they can continue in use”. CPFSI enforces the 2005 Fire Safety Order in government buildings. This says that any person who has some level of control in premises must take reasonable steps to reduce the risk from fire and make sure people can safely escape if there is a fire.

In June, the Justice Committee asked then Prisons Minister Victoria Atkins about the temporary mitigations, and when she expected that all prison places will meet fire safety regulations. They haven’t had a reply – probably delayed due to the turnover of Ministers, the Committee has explained. CPFSI did tell me that the mitigation they accepted "related to single point smoke alarms for each individual cell. This was only a temporary measure until the programme to install automatic in cell fire detection is completed". CPFSI have previously reported that "it has proved to be a major managerial challenge for prison staff to prevent tampering and vandalism to these domestic smoke detectors."  

We know from Copple’s letter to the Assistant Coroner for Kent and Medway last year that the rollout of automatic fire safety systems across the estate “is forecast to be delivered and completed within the next five to seven years.” His letter was in response to the report of an Inquest into a prisoner who died in 2019 by smoke inhalation when a fire developed in his cell at HMP Swaleside. 

Copple told the Coroner that across the estate, interim safety measures are in place including- in addition to the portable fire detection devices in all cells that do not have automatic systems- more water mist firefighting equipment and portable smoke ventilation fans. There are annual inspections of fire safety equipment and of arson reduction strategies. There is improved staff training. 

The Independent Monitoring Board at HMP Styal in Cheshire has recently reported that as a result of an Enforcement Notice from CPFSI, the prison had to provide improved fire alarms and fire doors and remove all non-fire retardant furniture, bedding and soft furnishings. Moreover, "prison staff have endeavoured to reduce the fire risk for prisoners in the affected houses by implementing measures such as not locking them into their cells at night."

In his report, the Kent Coroner suggested that as another interim measure, in-cell fire detectors could be added to a small number of cells for prisoners that pose a higher risk of self-harm, barricading and fire setting. This was rejected by the Prison Service as "not feasible".  

I proposed last year that the Home Affairs and Justice Committees hold a short inquiry into fire safety in prisons and other places of detention. The latest figures add weight to the case for greater scrutiny of a neglected issue of safety. 

The Committees should also look at whether the CPFSI has the resources it needs. It has yet to publish an annual report for 2020-21, let alone 2021-22.

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[1] Prison data is available in the pivot tables in the “Other building fires dataset” https://www.gov.uk/government/statistics/fire-statistics-incident-level-datasets

Separate and Silent

 

The prisons inspectorate (HMIP) published its first ever report on Separation Centres for terrorist prisoners today. First established five years ago, there are currently centres at Frankland and Woodhill high security prisons with a mothballed unit at Full Sutton. Their aim is to prevent prisoners with extreme views from radicalising others in the mainstream prison population, planning terrorist acts or disrupting good order in the prison.

Because  the use of the centres “has never fully taken off” , Prison inspectors possibly haven’t thought it worth their while to visit up until now. It's true that there are only 28 places in the three prisons, with only nine prisoners in the functioning units during April’s inspection visit. In fact there have only been 15 held in the centres over the last 5 years, all Muslim men; and only 21 referred for placement between 2017 and the end of last year.  These are much smaller numbers than are held in the longer established Close Supervision Centres (CSC) which hold prisoners posing the highest risks to other prisoners and staff and which HMIP visited in 2015 and 2017. 

But the Separation Centres should really have been inspected sooner, certainly well before the Government decided that they, along with the CSCs, should be more widely used.  Separation Centres also hold some of the most challenging and dangerous prisoners in the system, who are rightly subject to high levels of security and control. These can inevitably raise human rights concerns. Prisoners at Woodhill have in the past made allegations that institutional racism caused the Prison Service to establish such units only for Muslim prisoners.

Not least as the body leading the National Preventive Mechanism (NPM) which focuses attention on practices in detention that could amount to ill-treatment, HMIP should have taken more of an interest. Their inspections are based on international human rights standards, and according to the Ministry of Justice, some prisoners have used the Human Rights Act to frustrate their placement in a Separation Centre. Tellingly however, “the decision to locate a prisoner in one of the centres is part of wider national security and, as such, not within the remit of the Chief Inspector of Prisons to comment on”.

Making it easier for the prison service to use the centres in the future followed recommendations to that effect earlier this year from Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation (who I was surprised to discover is also a member of the NPM).  Hall’s report on Terrorism in prisons implied the centres were underused, blaming a low referral rate on an undue focus on the damage that separation might cause to the individual’s rehabilitation, with insufficient attention to the wider benefits of removing a radicalising individual from the wing.

As for the centres themselves, Hall was perhaps a little unwise to rely on a 2019  process study, undertaken entirely from a staff perspective, to conclude that regimes were “comprehensive in meeting the needs of the men and ensuring individuals were not disadvantaged by being separated”. In the study, "staff reported working tirelessly to provide a regime comparable to that provided in the main prison.”

Three years on, inspectors paint a more troubling picture. At Frankland “prisoners had collectively decided not to engage with the regime” and Woodhill’s day to day regime was often curtailed by serious staffing shortages. The decision by staff and leaders in both jails to describe the centres as “just another wing” meant that “opportunities were missed to think more creatively about how to work with prisoners”.

It’s encouraging that in today’s report, the inspectorate find outcomes to be good on safety- no violence was recorded in the year to April - and reasonably good on respect. But it’s puzzling that they rate management as reasonably good when “Governors and the separation centre management committee did not have a jointly agreed strategy and action plan, setting out the centres’ specific function that could be understood and acted on by staff”.

Less surprising is that work on “progression” - how prisoners can get back to normal location in the main prison- was not sufficiently good.  Most men refused to take part in formal risk reduction work, which made it difficult to identify any changes in behaviour which would evidence a case for ‘deselection’ from the centre.  

Even with a new policy leading to an increased number in Separation Centres and the likely re-opening of the Full Sutton unit, dispersal will rightly remain the predominant approach, with concentration reserved for the most dangerous few. For as the UN has said, keeping violent extremist prisoners separate from the general prison population can generate as well as reduce risks, elevating their status in their own and other prisoners’ eyes, reinforcing radicalised attitudes and/or enhancing rejection or stigmatization.

Hall is right that public confidence in the criminal justice system is shaken if terrorism occurs in prison or if people enter prison only to come out more dangerous; and the ability of prisons to function is gravely degraded if prison officers fear imminent terrorist attack. Finding the best way to prevent these outcomes must be a priority.

But as the UN has said, there is no one right answer to dealing with terrorist prisoners. What’s needed is more evidence about the effects of the Separation Centres and of other ways of accommodating them in England and Wales. Today’s report makes a welcome if overdue start to collecting it.    

Definitely Maybe: Will We Ever Get Secure Schools?

  

Back in 2016, the government said that failing detention facilities for children -Young Offender Institutions (YOIs) and Secure Training Centres (STCs)- should be replaced by a new generation of Secure Schools. How’s progress?

Glacial is too generous.

Prisons Minister Victoria Atkins told MPs on the Justice Committee last week that she’d like to get the first children into the first school at Medway early in 2024. “We are now on the road to construction” she claimed, confirming that expected costs of adapting what was the first STC have risen sevenfold to £36 million.

Across the road her Ministry of Justice (MoJ) officials were explaining to the Public Accounts Committee (PAC) that the building was not all that is under construction. The funding agreement with Oasis Restore, appointed in 2019 to run the Medway Secure School is still being designed.  As for a second school, officials admitted they haven’t yet done the planning for that.  Medway is a pathfinder, which Ms Atkins said, “we will be evaluating … very, very carefully”.

Reasons for the delay have included the need to ensure Oasis, as a charity, can lawfully run a child prison and to reach decisions about the spec for the building. But with a bit more political will, it’s hard to see why Medway couldn’t have been ready to start work a good deal sooner.  

As I wrote in evidence to the PAC, I’ve never really understood why a new model of youth custody is being developed in the shape of the Secure School when there is a perfectly good existing one in the form of Secure Childrens Homes (SCHs). SCHs provide by far the best quality of care in the existing youth custody estate, accommodating a variety of children whose liberty needs to be restricted whether because of criminal offending or to protect them from harm. Since 2002, 16 SCHs have closed. Would the MoJ not do better to contribute to an expansion of the proven model of SCHs rather than invent a costly and risky new one? The Education Department is already creating additional places in secure homes.  

At the Justice Committee, Ms Atkins pointed to complexities with SCH’s, arguing that since they rightly risk assess young people and decide whether or not they can manage that young person well, “we have to have options other than secure children’s homes”. 

But the Head of the Youth Custody Service made clear to the PAC that once the Secure School is running “it is entirely possible that Oasis say, “No, given the mix and the risk of the population we have, we might not be able to take this particular child.”   

A youth estate consisting of secure schools and SCH’s will always need some sort of backstop. 

It may be the recognition of this fact that accounts for what looks like a scaling back of ambitions for Secure Schools. Spiralling costs and a harsher Conservative approach to crime may also be causing ministers to have second thoughts.  Ms Atkins description of Secure Schools as “a pretty radical policy” and a “really brave effort” hinted to me at least, at the possibility if not of pulling the plug completely, then limiting the experiment to Medway.   

Officials were more positive about a “completely innovative” attempt to take a “really transformative vision”. But they admitted that their Department's commitment is only to trialling Secure Schools and  the Permanent Secretary made clear that “we are completely committed to the existing sector, because the vast majority of children are looked after within the YOIs and the STCs”.

Five and a half years after the Taylor Review of Youth Justice recommended fundamental change to the current youth custody system, the Independent Review of Children’s Social Care described  the state of child detention as abysmal, recommending that YOIs and STCs should be phased out within the next ten years and replaced by local secure children’s homes or Secure Schools.

The MoJ’s track record suggests that even if the recommendation is accepted, it won’t be delivered. The Social Care Review also proposed that youth justice policy should be moved to the Department for Education. This is something I called for when I left the Youth Justice Board in 2006. Unless it happens, I can’t see any major change to the way we lock up children.

Courting Trouble: Should Magistrates Have Been Given Extended Sentencing Powers ?

 

What will be the effect of giving Magistrates Courts the power to sentence people to prison for a year rather than six months for a single offence? The measure has been on the statute book since 2003 but despite regular urgings from the Magistrates Association has remained unimplemented until last week. The Government hopes the move will reduce pressure on the Crown Courts so helping clear the backlog of serious cases.

Just how much it will do so is unclear. Justice minister James Cartlidge told Parliament in January that the extra powers for lay justices would save nearly 2,000 Crown Court sitting days per year. He wrote to the Justice Committee on 29^th April that the estimate was 1,700. The impact assessment (IA) he signed off the previous day actually says that “after applying an optimism bias of 20% the sitting day figure reduces further to 1,400.”

But what about the effect on the size of the prison population?

The answer is even less clear. The IA assumes that sentences given by magistrates with their extended powers will be the same as those which would have been given by Crown Court Judges and anticipates no change in prison numbers. But why then should the Government go to the trouble of legislating a “varying power” to enable ministers to reinstate the 6-month limit?

They say it’s necessary “to ensure flexibility in the future, should significant unsustainable pressures arise …. such as a significant increase in the prison population, or a change to the election {for trial} rate increasing the pressure on the Crown Court”.   

The IA acknowledges that cases will be completed more quickly in the Magistrates Courts, so defendants who get a jail sentence will enter prison sooner. The MoJ reckon this will only bring forward, rather than add, costs to the Prison Service. But presumably there may be operational pressures resulting from increased receptions in the short term, although many of those involved would have been remanded in custody awaiting Crown Court sentencing under the old arrangements. 

Of greater concern is the risk that magistrates could sentence more harshly than Crown Court judges, which would lead to an increase in prison numbers. The IA calculates that 550 additional prison places will be needed if immediate custodial sentences increase by 2 months and a third of suspended sentences were in future to result in a jail term.

How likely are magistrates to use their new powers in this way? The IA says that because the cases will be the most serious magistrates see, they may sentence at the top end of the range available to them. Conversely, cases would be the least serious in Crown Court, so comparative sentences may be lower.

While this looks plausible, it doesn’t seem exactly evidence based. In a 2019 report the Justice  Committee backed giving magistrates the extended powers “subject to establishing a positive evidential basis for doing this from a suitable modelling exercise on the effects of such a step”. The government demurred, concerned about the potential knock on effects “and the difficulties of modelling these”.

In a feeble response to a FoI request last year from Penelope Gibbs at Transform Justice, the MoJ confirmed that it had done modelling and made impact estimates, but locating, retrieving, and extracting the information would be too costly to provide it. Creating the “varying power” for use should  “any unsustainable adverse impacts materialise” suggests the MoJ’s modelling might have predicted some of these. But they won’t say.

So, what might happen over the coming months?

In 2019 the Senior District Judge told MPs she would be “very cautious” about increasing magistrates powers and “a bit worried that there would be an increase in prison sentences”.  

By contrast Justice Committee Chair Bob Neill took the view during the passage of the Judicial Review and Courts Bill that  “there is a bit of an urban myth that magistrates are heavier handed in sentencing than the Crown court would be”. The experience of ex magistrate MP Andy Carter is that the overwhelming majority of magistrates will do everything they can to avoid passing a custodial sentence, and if a custodial sentence is required, a primary consideration is to look to suspend that sentence.

The MPs colleague James Daly wishes it were otherwise arguing that “we should be imposing deterrent sentences rather than the incredibly lenient sentences that are often handed out by magistrates because they do not feel that they have sufficient powers or length of sentence to replicate the seriousness of the offences that they are facing”.  And this is precisely the danger.

The Government say they’ll monitor the impact on average custodial sentence lengths and the prison population rates as well as the court backlog. They’ll also see whether more defendants elect Crown Court trial or appeal against their sentence, both of which would add to rather than subtract from the backlog.

An equality impact statement says monitoring will include data on sex, ethnicity, and other protected characteristics “where it is available”. But during the passage of the Judicial Review and Courts bill, the government rejected as burdensome an amendment requiring reporting to Parliament every four months on the operation of the increased sentencing powers.  And oddly the IA says the policy of extending Magistrates’ Court sentencing powers will not be reviewed.

To reduce the risk of unsustainable adverse impacts, the government promised to provide training for magistrates, district judges and legal advisers and to work with the Sentencing Council to update sentencing guidelines. There has been nothing so far on the Council’s website about the change.   

Overall the measure gives a good deal of cause for concern. As the House of Lords Delegated Powers and Regulatory Reform Committee  have said “the issue of what the maximum term of imprisonment that is available to a magistrates’ court should be is one on which there are differing and strongly held views”.

The idea that ministers can switch it on and off at will is bizarre. But so, to me anyway, is their ability to commence a legal provision 19 years after it was enacted and in a very different context. No consideration seems to have been given to piloting it; and the powers are clearly a means to the end of freeing up court time rather than necessarily in the interests of justice.

As for the substantive issue, I’ve always wondered whether lay magistrates should have powers to sentence people to prison at all. Certainly the way the Magistrates Association have celebrated their “campaign win” looks slightly off.

Punishment in Portugal

 

 “I do harm to people”. That’s how a Portuguese judge responds when asked what he does for a living, or so he told a meeting on alternatives to prison this week in the beautiful university city of Coimbra. But surely, only for the good of society, his surprised questioners tend to follow up. To which he replies “Sometimes, but sometimes not”.

Punishing people should leave you “with a heavy heart and burnt hands,” he told us. While some of his colleagues on the bench are unlikely to share this wisdom (or his way with words), the judge’s comments typify a long-standing humanistic approach in Portuguese criminal justice - the country was the first to abolish both the death penalty in 1867 and the sentence of life imprisonment not long after.

More recently, it has led the way on drug decriminalisation and enacted emergency powers to release 2,000 people from prison during the 2020 Covid wave- almost a sixth of the total. No prisoners died from the disease and there was apparently relatively little re-offending by those freed early.

Some have argued that this makes the case for seeking to reduce prison numbers permanently. The judge was certainly in favour of lowering punishment levels and making community service much more central to sentencing so that prison numbers are more in keeping with Portugal’s fourth place ranking in the 2021 Global Peace Index. He questioned whether non-custodial penalties should continue to be anchored so heavily to prison in the law. Most of those serving them are subject to jail terms which have been replaced or suspended in one way or another.

The three-day training event for judges, lawyers and probation officers, organised by the University and Penal Reform International forms part of an  EU funded project Promoting non-discriminatory alternatives to imprisonment across Europe (PRIAltEur). Other activities include a comparative study of penal practice in EU member states – (cue wry smiles in my direction during the presentation when participants were reminded that the UK is not included).  

A pilot scheme to improve access to psychiatric services for people on probation is also being developed in the ambit of PRIAltEur. Portugal’s national coordinator for mental health is enthusiastic about including people in conflict with the law in his ambitious plans to transform the service. 

Several contributors seem rather proud of Portugal’s penal law and policy, while being the first to acknowledge that implementation on the ground can be another story. The Council of Europe’s torture watchdog has roundly criticised overcrowding and very poor conditions in the country’s ageing local prisons, though welcomed some progress when they visited in 2019.  They will be back later this year.   

As for wider society, UN bodies have been concerned about racism both towards Roma and people of African descent. Meaningful discussions at the meeting about racial disparities in criminal justice were prevented by a total absence of information. The Constitution prohibits the collection of data that are disaggregated by race or ethnicity. The UN’s Human Rights Committee worry this hampers the ability to further combat discrimination.      

On community penalties at least, probation is embracing a balanced package comprising structured treatment programmes, relationship based practice and new technology. But probation officers carry an average caseload of 70, and while the conference heard about some impressive work by established ngo O Companheiro, civil society involvement in penal matters is relatively limited.

Portugal has for now at least avoided a descent into populist politics which invariably brings a more hard-line approach to crime and sentencing in its wake. For how long?

Right wing nationalist party “Chega”, meaning “Enough”, won 12 seats in January’s parliamentary election, campaigning for life imprisonment and chemical castration. Its founder and leader Andre Ventura has criticised the Covid prisoner amnesty. Ironically, Ventura, is a former law professor, (though not at Coimbra) , whose doctoral thesis criticised penal populism and the stigmatisation of minorities.   

The judge at our conference told us that he and his judicial colleagues should “run away from prison sentences as the devil runs from the cross.” As we well know, politicians, or many of them, choose to run in the very opposite direction.   

 

Will Market Harborough become the UK's Prison Capital?

 

The policy of creating 20,000 new prison places has been subject to precious little public debate at national level, with seemingly broad political agreement that they're necessary. There’s more scrutiny at local level thanks to the need to obtain planning permission for any new or expanded prison establishments

Last week the Ministry of Justice (MoJ)  published a revised prospectus about their proposed 1715 place  Category B prison next to HMP Gartree in Leicestershire.  It aims to address concerns raised in the 350 comments received by Harborough District Council following the MoJ’s application for outline planning permission. Of these 346 objected to the plans, three were neutral and only one supportive.

For many, “the fundamental problem is that the proposed development would be absurdly out of scale with the small rural communities surrounding the site” with increased pressure on country roads, more noise, light and air pollution, and a negative impact on wildlife.  One argued that “the term "nimby" does not apply here - we ALREADY have a prison in our back yard!” but concerns about the impact on house prices, the reputation of the area as the prison capital of the UK and an increased demand on local services- particularly the NHS and the sewerage system seem widespread.  

One or two are worried about security - “the risks of riots and escapes inevitably increases the larger and more impersonal the establishments”; about visitors hanging around the town centre and even relatives of inmates moving into the area to be close by “which has led to increases in local crime placing an even greater burden on an already stretched police force”. Homelessness among released prisoners was also raised.

There are some more principled objections. One argues that prisons are a human right violation, a disgusting stain on our 'civilised' society and that we need abolition. Another that in order to address crime “there needs to be a massive re-distribution of wealth and resources, as poverty is a massive driver of "crime" under capitalism.

More practically, several residents questioned how 737 new staff will be found for the new prison. Gartree’s existing 700 place prison struggles to recruit and retain people to work there.  One said the plan “does not do anything for the government’s policy of levelling up as it brings more jobs to an area of already high employment as opposed to giving the opportunity to put those jobs where they are actually needed.”

Another resident pointed out that “those who support the current prison in the town, Chaplains and volunteers are in extremely short supply. People from the churches in town who support the prisoners by buying Christmas presents for their children, could in no way help another very large group of prisoners”. 

Several felt the government should be working much harder to reduce prison populations, and that money would be better spent on the more effective rehabilitation of offenders and not just locking more prisoners up; that “this is an outrageous use of funds which need to be invested in public health”; and that "further investment in meaningful jobs, social housing, education provision for adults and children, child care support, local libraries, transport infrastructure, improved community treatment and voluntary rehabilitation services would all serve the community much better than a prison".

The government’s new prospectus makes much of the social value and community benefits that will accrue from the prison and contains commitments to some small scale neighbourhood improvements – a new play space for Gartree Village on MoJ owned land and better broadband among them.

It understandably steers clear of the bigger policy questions on imprisonment, saying only that “Protecting the community and getting criminals off the streets whilst delivering real rehabilitation opportunities and reducing reoffending is at the core of the Government’s prison building programme”. 

Whether its mitigations on environmental impacts, measures to manage pressures on local services and promises to improve communication with local residents persuade the council to allow the development remains to be seen.

Concerning Recommendations

 

In a puzzling move, the Prison watchdog plans to stop making recommendations about what needs to be done to improve the treatment and conditions of detainees.  The inspectorate (HMIP) is consulting about it can best fulfil its twin functions of drawing public attention to problems in custody and supporting efforts to fix them.  Chief Inspector Charlie Taylor explained in a blog that responding to recommendations creates “a blizzard of paperwork for both the prison and the prison service and can distract governors from getting on with the actual job”. Instead, after a visit he wants to highlight concerns but leave it to  governors and their teams to use their knowledge and expertise to find the solutions.

Making recommendations is a core activity for oversight bodies. Globally, The Nelson Mandela Rules say prison inspectors shall have the authority “to make recommendations to the prison administration and other competent authorities” and that the prison administration shall indicate, within a reasonable time, whether they will implement the recommendations. International law says a so-called National Preventive Mechanism (NPM) should have the power “to make recommendations to the relevant authorities with the aim of improving the treatment and the conditions of the persons deprived of their liberty. HMIP coordinates the UK’s 21 NPM members.

As recently as 2016, government plans envisaged that “HMIP should play a stronger role in holding prisons to account, so that the recommendations it makes have a real impact on improving the system, while retaining its independence”. Strengthening the scrutiny that prisons receive was intended to play a key role in making prisons safer and more effective at reforming offenders.

In 2019, the House of Commons Justice Committee report on Prison Governance found it unacceptable that for three years running less than half of recommendations made by the Inspectorate had been fully achieved. The MPs prescription was not for HMIP to stop making recommendations but for the Ministry of Justice (MoJ) and Prison Service to take responsibility for implementing them and provide additional support to governors to make changes that get to the heart of what the Inspectorate is recommending.

In their response to the Committee’s report , the MoJ promised to provide more support to prisons and to make progress against HMIP recommendations a formal performance measure that governors are held to account on. As prisons emerge from the pandemic, the MoJ should be encouraged to make good on that promise.  Taylor’s plan threatens to let them off the hook.

While Taylor may be right that prisons can suffer from what used to be called “initiative overload”, specifying a small number of recommendations as high priority is the way to ensure the most important changes are given the attention they need.  Making no recommendations throws the baby out with the bathwater.

There are plenty of other improvements to its methodology that HMIP could make.

For one thing, its reports should include much more comprehensive and systematic data about outcomes across its four healthy prison domains. Last week’s report on Swaleside recommended the recruitment of sufficient operational and specialist staff to reinstate purposeful activity and support prisoners’ progression. Why not say how many there are and how many are needed? The Probation Inspectorate has found that when practitioners hold a caseload of fifty or more, they are less likely to deliver high-quality work meeting the aims of rehabilitation and public protection. Shouldn’t prison inspectors say something similar?

Second, as the Commons Health and Social Care Committee recommended in 2018, greater prominence should be given to Care Quality Commission  judgements in HMIP reports with a clear rating about the extent to which prisons enable prisoners to live healthy lives.   

Finally, the inspectorate could be bolder. This week Scotland’s Chief Inspector of Prisons proposed that no child under 18 should be held in prison.  Submitting proposals and observations concerning existing or draft legislation is one of the minimum powers which a NPM should have. Using its evidence to press for change in law and policy is something HMIP should do more of, alongside making recommendations for changes in practice.

Where are Labour going on Crime and Punishment?

 

There are many reasons Keir Starmer’s Labour Party might provide better government than the current administration but hoping for a new approach to crime and punishment may not be one of them.

New Shadow Home Secretary Yvette Cooper and Justice Secretary Steve Reed are promising to put crime top of the May election agenda, not only to exploit the PM’s personal imbroglio with the police but to outflank the Conservatives’ law and order credentials. Angela Rayner's call to “shoot your terrorists and ask questions second" might give her former human rights lawyer leader pause for thought, but her hard-line approach to burglars probably won't.

Just as Tony Blair and Jack Straw did thirty years ago, Starmer’s team are seeking to ditch any notion that they care more about criminals than victims, reviving the New Labour commitment to be “tough on crime, tough on the causes of crime” and floating harsh sounding but often unworkable gimmicks- in Reed’s case a “naming and shaming’ scheme for people convicted of buying drugs; in Rayner's, beating down the doors of criminals at 3 in the morning to annoy the hell out of them. 

In the short term, Labour’s repositioning brings with it a real risk of another penal arms race; early skirmishes include the Justice Secretary apparently now personally authorising (or not) moves of prisoners to open conditions; and the plan to increase magistrates' sentencing powers.  While the Johnson government has already put measures in train which could push the prison population to 98,500 over the next four years, Opposition pressure could fan the flames of penal populism yet further, leading to the creation of more offences, increased maximum penalties and more austere prison conditions. The tone for any administration Starmer might form in the future would have been set. It would not be a surprise if the post war trend continued of prison populations rising faster during periods of Labour government than Conservative.  The Blair-Brown years saw a 40% rise from 61,000 to 85,000.

Any more growth in imprisonment would be a financial, social and moral calamity – and an unnecessary one.  Ipsos Mori’s monthly tracker poll shows people don’t currently rate crime among the top ten important issues facing Britain today. Its salience is at near record low levels. Could this be a window of opportunity for de-escalating the war on crime? 

Where Labour could learn something from Blair’s approach is not in terms of his rhetoric but his efforts to create a better reality on the ground- improving clear up rates, reducing delays in processing cases, increasing opportunities for drug and mental health treatment, and creating institutional infrastructure to deliver it. It didn’t all work- too much coercion, too many targets with unintended consequences, not always enough local ownership and commitment.  And the need to spin everything as a success obscured learning about the complexities involved.

The big picture Cooper and Reed should be seeing is of an expanded range of measures beyond cops, courts, and corrections.  Promising approaches such as Restorative Justice and Justice Reinvestment need to be dusted off . Innovative Out of Court disposals should be encouraged as a preferred option to meaningless court processing. Sentencing guidelines need to promote effectiveness and limit the unproductive use of imprisonment. Mental health needs to be addressed much more thoroughly in prison and probation services. These are some of the elements from which Labour could fashion a much more diverse and positive agenda than the dismal offer of more punishment.

Will they do so? Reed told the Mirror that “if you over-focus on the things that have happened in people’s lives that lead them to offend, it can sound like you’re trying to excuse what they’ve done. We cannot because they’ve damaged someone else’s life.” Perhaps he should worry less about what things sound like and more about what works to prevent and resolve crime and the harms it entails. 

 

Another Year, Another Woeful Report on Youth Custody

 

Another year, another troubling report on a child prison. This time it’s Werrington, a small former Industrial School near Stoke which takes teenage boys mainly from the Midlands. The Independent Monitoring Board (IMB) explain in their Annual Report how last summer they considered the Young Offender Institution to be such an unsafe environment that they had to alert prison chiefs in London to their concerns.  

The watchdog found Werrington “often a dangerous place” with an atmosphere of threat and intimidation. 328 weapons were fashioned by young people in the year to August 2021. In February, a violent hostage-taking incident led to £50,000 worth of damage. The IMB were understandably dismayed to learn that a “conflict resolution team” had been disbanded in late 2020, leaving staff and young people without a route to solving problems. They also point to a worrying lack of trained negotiators.

Part of the explanation for the rising violence is the frustration caused by extended periods of 22-hour lock-up – something the Board consider amounts to prolonged solitary confinement of children (prohibited under international law).  The IMB see the disturbingly short time children were out of their rooms especially at weekends as a form of torture.

Due to construction works, some very emotionally distressed young people have been unable to access a unit providing a greater level of support and as a result “created chaos” on the normal wings. “Staff were sometimes seen mopping up flooded water with plastic bags over their shoes and trying to dispose of insanitary water”.

The Board report that for many young people, the rooms in which they spent so much time “were not fit for habitation.” Young people regularly requested that their family photographs (including themselves) be displayed, but this was not allowed due to security issues, a response which the IMB finds inhumane.

The IMB does not consider the educational provision adequate, in part due to lack of facilities but also because of the regular outbreaks of violence. Throughout his time at Werrington, one young person was unable to read and write so could not access the menu to order what he wanted to eat.

It’s not all terrible. The IMB point to good, professional care by the staff, the installation of phones in all boys' rooms for improved contact with family and friends and regular contact with healthcare, chaplaincy, and social work staff. And of course the pandemic lies behind some of the serious problems, restricting regimes and creating staff shortages

But what this report confirms is the fundamental unsuitability of the young offender institution as a model for dealing with children in custody- something which in truth has been known for decades and even accepted by the government for years. 

We still await the first secure school heralded as a new way forward; and for details of a promised expansion of places in secure childrens homes which have inexplicably been allowed to dwindle. The number of secure beds for children in the health service also fell between 2018 and 2021- from 257 to 188. This is hard to justify, not least in the light of last month's IMB report on another YOI, Wetherby, which, for the sixth year running, asked the Prisons Minister  "what is being done to increase the number of beds for those young people for whom prison is clearly not the right place?"  

Covid notwithstanding, the failure of youth custody to cope with a historically low population does not bode well for a future in which more children are projected to enter closed institutions.  

Spending watchdog the National Audit Office have started some work in this area  - their first foray into youth justice for over ten years.  It's a quarter of a century since a report by their now defunct sister organisation -the Audit Commission- published the influential report Misspent Youth . It paved the way for far reaching youth justice reforms. Could something similar be on the cards this year?