What a Waste!

 

There’d always been a hope against hope that the new Labour government might change course on penal policy. Up until yesterday's statement and strategy on prison capacity.

To their credit, they’ve commissioned a comprehensive re-evaluation of the sentencing framework designed to make greater use of punishment outside prison.

But just as the Independent Sentencing Review led by David Gauke has started work, the Ministry of Justice has anyway pledged to continue with the last government’s prison building programme. It’s a match made in haste they may well repent at leisure.

While the rate of imprisonment in England and Wales is already twice as high as in Germany and the Netherlands, the government has decided that yet more people should be locked up for longer, regardless of the financial, social and ethical costs.

So much for an administration that promises a test and learn culture to tackle the biggest challenges; or a Finance Ministry that will take an Iron Fist against waste.

Before signing off the spending, has anyone there asked if this is the best way of protecting the public and reducing reoffending? Last month three former Lord Chief Justices told the Howard League that the answer was a resounding no. 

Surely at least some of the money earmarked for new prison places would be better used to make existing ones decent; or better to strengthen alternatives to prison- through more hospital beds, drug treatment or probation hostels.

Or better still to fund properly activities which can prevent serious youth violence - like mentoring and therapy – or those which can deal more constructively with crime- like restorative justice.

Even if Mr Gauke recommends more approaches like this, the government won’t be able to fund them.

Older readers may know Ian Dury and the Blockheads’ 1978 hit “What a Waste.”  I was reminded of the lines

“I could be the catalyst that sparks the revolution,
 I could be an inmate in a long-term institution”.

More of the latter than the former in these disappointing announcements.

 

 

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Health and Safety in Prison : Time for a New Approach?

 

 

 

Given the parlous state of the prisons – evidenced most recently in reports from the Independent Monitoring Boards (IMB) and the National Audit Office (NAO), it seems odd how little interest is taken in them by the Health and Safety Executive (HSE).

The HSE is the national regulator for workplace health and safety, dedicated, they say, to protecting people and places, and helping everyone lead safer and healthier lives. According to their website the HSE works to ensure people feel safe where they live, where they work and, in their environment. Presumably this includes people in prison- prisoners, staff and visitors. 

The HSE say that they will not intervene “if another regulator has specific responsibility for that area.” But the Prison Inspectorate, IMB's and the Ombudsman are not regulators. Prisons are subject to the enforcement powers of the Crown Premises Fire Safety Inspectorate and the Care Quality Commission, the regulator of health and social care. But there's a gap in the regulation of other aspects of prison environments and processes. 

It's true that the HSE has played a role in investigating the levels of Radon gas in Dartmoor prison, which led to the prisoners and staff being transferred out four months ago.  But this was the culmination of a shambolic sequence of events dating back four years.

The prison’s local IMB has published a troubling timeline in their annual report detailing how fluctuating decisions from the Prison Service and HSE led to “the repeated decanting and recanting of prisoners” after the potentially dangerous substance was first detected in 2020. There is no record of any formal enforcement notice having being served by the HSE at Dartmoor or indeed any other prison.

In fact their register shows only one improvement notice in the prison sector. This relates to the Prison Service’s National Tactical Response Group (NTRG), a group of trained staff deployed to deal with incidents of violence and disorder which cannot be handled locally. 

The HSE notice served in June this year says that the NTRG’s “system of work for Close Control Techniques in Operational (live) Interventions does not reduce the risk of harm so far as reasonably practicable”. 

The Prison Service must comply with the notice by 7^th December 2024. I am not sure what specifically needs attention or what gave rise to the notice. But it may be significant.

NTRG was deployed more than twice a day last year . When the sharply increased figures were announced, the Shadow Justice Secretary said: “These squads are trained to deal with the most serious disorder and violence in the prison estate. The shocking rise in the number of deployments is a damning testament to the failure to manage our prisons and the miserable impact of 14 years of Tory rule on our criminal justice system”.

Now Ms Mahmood is in charge of the system, she will need to ensure that the NTRG has taken any necessary remedial action.

But there is a broader issue. In his relaunch speech, the Prime Minister included regulators in his list of "naysayers" who will no longer have an upper hand, (whatever that means). 

In prisons, they have hardly had a hand at all. They should do more not less.    

Throwing Good Money After Bad

 

The Wellcome Collection exhibition Hard Graft: Work, Health and Rights has among an eclectic mix of items on display an elaborate slide rule used to set daily targets for the number of steps on the treadmill each prisoner should take per hour. 

While no doubt useful to standardise the diverse working practices across the mid-19^th century prison estate, I wondered whether any of the administrators who created the device or the Governors who applied it stopped to ask themselves: What is the fundamental point of what we are doing here?

A similar thought struck me reading the National Audit Office Report Increasing the Capacity of the Prison Estate to Meet Demand. Of course there are benefits to charting forensically what turn out to have been woeful and often wasteful attempts by Government to deliver a prison estate fit for purpose.

Failures to maintain existing prisons, unbridled optimism bias about timescales for building new ones and the expensive short term fixes dreamt up to stave off total collapse all provide lessons, I suppose. Whether they will be learned is another matter. The most important of the NAO’s recommendations could have been cut and pasted from their 2020 report on Improving the Prison Estate.

What’s missing though is any engagement with the bigger questions. Why on earth are we spending what’s now £10 billion on more than 20,000 new prison places? And in what universe is this considered good value for money?

The NAO’s job is to tell us if resources have been used economically, efficiently and effectively to achieve intended outcomes. Sure, their role is not to question government policy objectives. But in the case of the Ministry of Justice, their relevant objectives have been protecting the public and reducing reoffending. Should the NAO not have at least raised a question about whether the biggest prison building programme since Victorian times is the best way of meeting those objectives?

Last week three former Lord Chief Justices not only asked the question but answered it with a resounding “no”.   One told the Howard League that the relentless rise in the length of prison terms had led to an “appalling” and unnecessary use of money and the prison population should be about 50,000 not the 85,000 we have today let alone the 100,000 we may end up with. Another described the increasing numbers of people recalled to prison as “completely insane”.

Not the language of auditors perhaps but not normally of judges either.  If leading judicial figures conclude that funds spent on prison would be better used in other ways, the body charged with assessing value for money should at least engage with the argument.  

Had they done so they could have looked at whether at least some of the money earmarked to lock up more people for longer might be better used to strengthen the range and quality of alternatives to prison- through more hospital beds, drug treatment or probation hostels. Or to fund properly activities which can prevent serious youth violence - like mentoring and therapy – or those which can deal more constructively with crime- like restorative justice.

But they didn’t.  Perhaps David Gauke and his colleagues undertaking the sentencing review will do so. We know from the NAO report that there is a need to cut demand for prison places by 12,000 because the MoJ does not have any contingency plans to increase prison capacity beyond the current target “as it views it has limited options left to do this”. Let’s hope Gauke doesn’t simply get a slide rule out but takes the opportunity to fashion a genuinely more effective response to crime and justice.

Confidence and Supply

 

Much of the focus on prison reform in recent months has been on managing burgeoning demand for places. The newly formed JusticeSelect Committee started their examination of Prisons Minister Lord Timpson this week by asking how long the space freed up by the SDS 40 early release scheme might last.

The answer it seems is next Autumn or maybe a bit longer. That’s hoped to be enough time to create longer term sustainability in the system by putting in place whatever legislative changes are recommended by the David Gauke Sentencing Review.

But is that realistic? Even if Gauke manages to report in the Spring, his proposals are likely to be controversial. Getting them on to the statute book and then implemented could easily take another year.

The MoJ handily has a couple of further demand reduction measures up its sleeve- a change to the process of recalling released prisoners to jail in April and extending to a year the period of release on a Home Detention Curfew for eligible prisoners, from June. So they may muddle through.

But what about the supply of new prison places?

MPs heard that the new all electric Millsike Prison in North Yorkshire is on track to open in April, (although like all new prisons will surely need time to reach its full capacity of 1500). A new houseblock at Rye Hill in Warwickshire will also be ready early next year which should add 450 additional places. Timpson also said that HMP Dartmoor - closed in the Summer because of high levels of Radon- will re-open when safe, making more than 600 places available.

Prison Service Chief Amy Rees told the Committee that planning permission had now been granted for 17,000 of the 20,000 proposed new prison places. (The outstanding decision on the one remaining new build prison near Wymott and Garth in Lancashire is due to be made by mid-December).

Planning delays have added between 18 months and 3 years to the original timelines according to Ms Rees. In future, planning for prisons will be treated as Crown development with urgent procedures for reaching decisions and more in the way of permitted development on existing sites.  

On the downside, Timpson revealed that 100 projects in courts and prisons were affected when construction company ISG filed for administration in September. 79 will require re-procurement.

He also acknowledged the significant shortcomings in the physical condition of the existing estate although did not put a financial cost on the backlog of maintenance. It was £1 billion in 2021 and seemed to suggest it has doubled since then.

What we do know is that there are still 23,000 cells which require fire safety upgrades. According to my calculations, the necessary work has been progressing at the rate of about 3,000 cells a year- far too few to meet the commitment to complete the work by 2027.  The latest HMPPS Annual report, published last week but curiously unmentioned in the Select Committee, says reaching the target is “finely balanced in terms of the future headroom position and we are likely to require additional places out of use in future years to achieve this aim.”

More broadly, inspection and monitoring reports have drawn repeated attention to often shocking failings in infrastructure. These aren’t limited to the 25 odd prisons dating from the Victorian era. The HMPPS Annual Report revealed that in May 2024, eight sites were confirmed as containing RAAC.

HMPPS have undertaken a comprehensive survey of conditions in the prisons. I was pleased to hear Ms Rees tell the committee that the report of the survey would be published shortly particularly as the MoJ had refused my FOI request to see it.  

But then according to the HMPPS Annual Report, the Final Report of the Survey was published in June 2024. It wasn’t.  I have asked the Justice Committee to try to clarify the position.

A Secure Future?

 

In 2016, Charlie Taylor’s Review of Youth Justice concluded that “fundamental change is needed to the current youth custody system”. He found children spending too much time in their cells; inadequate education and rehabilitation; and increasing violence both among children and towards staff.

This week Taylor- now Chief Inspector of Prisons-reported that Young Offender Institutions (YOIs) are still “dominated by violence and disorder and weak education”. If anything, eight years on, things are worse.

It’s not surprising that children’s experiences in YOI’s are as dismal as they are given the fundamental unsuitability of prison establishments for their care.

 At Feltham in West London, over the summer two serious incidents of violence led to 34 members of staff being injured.

“Inspectors saw children trying to get to each other through locked gates as they were returning from education.”

But most “simply did not attend enough education to make substantial progress.”

Compare this to a Secure Childrens Home (SCH) in Nottingham where inspectors found a much more positive setting. When children are at risk of hurting themselves or others, staff intervene with physical holds which are used safely, proportionately, and for a short length of time. When children do not get on with each other, appropriate action is taken to prevent potential bullying. Staff work with children to repair relationships whenever possible.  

School attendance is very high. Some children achieve GCSEs in core subjects, others study vocational options in line with their career ambitions.

SCH’s are much smaller facilities than YOIs with better trained staff and a greater ability to choose which children they take. And they cost a lot more.

So while they probably cannot replace YOIs altogether, it’s always puzzled me why Taylor’s Review did not recommend their expansion. They consistently provide high quality care and education, but the numbers of places have reduced substantially in recent years

Instead Taylor arguably overcomplicated matters by inventing a new hybrid institution -the Secure School- which is both a SCH and a 16-19 Academy. After a protracted and expensive development of the old Medway Secure Training Centre, Oasis Restore took its first children in August.

We learned this week that the Secure School’s Principal Director and Responsible Individual, Andrew Willetts will start a new job in January, as Chief Executive Officer at The Orpheus Trust. The Director of Care and Wellbeing left Oasis Restore in June before the first children were even placed there.

I don’t know exactly what lies behind these moves, but it cannot help the stability of any institution if the leader who’s spent three years preparing it to open departs so soon after it does. Despite misgivings about the need for a new model of custody, I hope Oasis Restore proves successful.

In 2016 the government agreed with the Taylor Review’s vision that YOIs and STCs should be replaced in the longer term by smaller secure schools situated in the regions that they serve.  

This week’s bleak inspection reports on youth custody confirm the need for change- but whether by more Secure Schools or Secure Childrens Homes remains open to debate.  

The State of the Estate

 

Inspectors questioning whether cells are safe for human habitation looks like a new low for the prison system. In truth there are many establishments besides Winchester providing what the Prison Governors Association describe as “truly shocking conditions where prisoners are expected to live, and our colleagues work.”

But how many prisons, what kinds of shocking conditions and what will it take to bring them up to acceptable standards? Inspection and Monitoring Reports provide a valuable but only partial picture.  A more comprehensive assessment is surely needed.  

As it happens, last year the Prison Service conducted a survey of conditions in each of the public sector prisons and a sample of the private ones. Earlier this year, the then Prisons Minister told the Justice Committee that the report on the State of the Estate would be completed by the end of that month.  It has not however been made public.

Following a FOI request I made, the MoJ argued that disclosing the survey report would prejudice their commercial interests and impinge on the process of formulating policy. Both seem largely spurious objections which could be met, if necessary, through redaction. But the MoJ have decided the public interest favours withholding the information at this time.  

I had hoped that the new Government might have placed a greater value on transparency and perhaps calculated that - as with Lord Darzi’s report on the NHS- putting the true picture in the public domain would reinforce the difficulty of their inheritance and the need for remedial investment.

The newly formed Justice Committee should press the new Prisons Minister to publish at least a summary of the State of the Estate report not least because the MoJ accept in their FoI response that releasing it “could help inform and further the public debate on this subject matter”.

That’s important because addressing the scale and nature of the problems facing existing prisons should be just as urgent a challenge as the purported need to create future custodial places.   

Food for Thought

 

Complaints about food are “a constant refrain” when Monitors visit HMP Warren Hill in Suffolk according to a Report out today. Prisoners are unhappy with the quality, quantity, choice and food temperature at the small Category C prison in Suffolk. Recent reports on other establishments suggest discontent may be increasingly widespread. They've been published in the months following the hospitalisation of six people at Lewes prison with food poisoning.

Yesterday, His Majesty’s Prison Inspectorate(HMIP)  reported that just 18% of prisoners at HMP Erlestoke said that they got enough to eat, down from 35% at the time of the last inspection.  The small size of the portions was a key- but not a priority -concern for HMIP.  At Belmarsh only a quarter of prisoners said that the food was good and that they got enough to eat. Lunch was served to the prisoner’s door as early as 10.30 in the morning.  

Earlier this year, in a survey conducted by the IMB at HMP Oakwood, more than nine out of ten of the 280 respondents found the overall food quality to be bad or very bad.  68% found they did not have enough to eat at mealtimes, with only 27% feeling they had enough some of the time. This is the prison that the Chief Inspector of Prisons, Charlie Taylor has described as the best in the country.

Oddly Taylor’s latest Annual Report fails to mention food, other than to criticise a filthy food trolley. It’s an omission.

I’m not sure how psychologists view Maslow these days but his argument that survival needs must be satisfied before anyone can address matters higher up the hierarchy still rings true. In prisons, the challenges of offering safety and security, a sense of connection and of individuality will often act as further barriers to reaching self-actualisation. If Maslow’s right, if you’re hungry, you’ll struggle to reach let alone overcome them.

An academic review last year concluded “the potential of food to enhance the prison environment and support improvements in prisoner health and wellbeing is limited when the nutritional content is inadequate and/or where food is served and eaten impacts negatively on human dignity. Prison policy which provides opportunities for cooking and sharing food that better reflects familial and cultural identity has the potential to improve relationships, increase self-esteem, build and maintain life skills needed for reintegration”.

There is great work going on to influence policy and practice in this direction. Charity Food Behind Bars is working to transform the food served in British prisons and researchers at Surrey University have called for an increase in the food budget -as well as publishing a recipe book prepared by women in prison.  £2.70 per prisoner per day was spent on food in 2023–2024, a 25% increase from the previous year's budget of £2.16. I cant find a figure for this financial year.

But the latest glut of reports suggest creating improvements will be an uphill struggle. Communal dining and opportunities to prepare food other than in a microwave seem very much the exception rather than the rule.

With the planned expansion of capacity at several prisons, there’s a risk that pressure on kitchens will increase. At Warren Hill, food is prepared at neighbouring Hollesley Bay a mile away. Unreliable transport results in food going cold and even being tampered with. Monitors hope that a planned expansion of the prison will bring with it a new kitchen. 

Planning permission has recently been obtained for 93 rapid deployment cells, and a servery. But no kitchen that I can see.  I hope I am wrong.

Sentencing Reform - A Little Less Conversation, A Little More Action Please

 

 The Howard League deserve credit for persuading five retired senior Judges to argue publicly that the sentence inflation which has brought the prison system to its knees must be brought under control and for a reversal in the trend of keeping people in prison for longer simply to punish them more severely. If implemented, their recommendations would help chart a more sustainable future for prisons and a more effective approach to reducing re-offending.

For me, their warning that without urgent remedial action, “this country will soon experience US-style mass incarceration” is a bit overblown. America’s 1.9 million prisoners represents a rate of imprisonment (531 per 100,000) which is 3.5 higher than ours (146).  

But the four former Chief Justices and one lead judge on criminal justice are surely right to urge a return to more modest proportionate sentences across the board to bring England and Wales into line with Western European norms.

A question nagged away as I read the paper though. While in their various senior roles in the judiciary, could and should the authors not have done more themselves to curb the trends they now decry? Is this not another frustrating example of Post Retirement Enlightenment Syndrome – the phrase originally coined to describe the experience of having politicians “come out” in favour of drug policy reform only after ceasing to occupy positions in which they might have actually carried it out.

The paper lays the blame for sentence inflation firmly at the door of government and the legislature. But can it really be the case that the rise since 2010 in the rate of custodial sentencing from a quarter of the more serious cases to a third; and the increase in the average length of prison terms from 14 to 20 months is down to new laws or the will of parliament?

It’s possible that harsher sentencing reflects more serious offending, or offenders with more previous convictions. But an inconvenient truth may be that the independent judges and magistrates who impose criminal sentences themselves have played a significant role in sentence inflation, whether deliberate or inadvertent.  It may be that it's guideline judgments of the Court of Appeal, rulings on unduly lenient sentences and in particular sentencing guidelines which have served to push up the going rate of punishment- an increase in sentence lengths which means that the people released early from prison this week after serving 40% of their sentence will have on average served two weeks longer in prison than those who served 50% of their sentence in 2014. 

Take the guidelines which are produced by the Sentencing Council, which is fundamentally a judicial body. The sitting Chief Justice is the President of the Council and Lord Justice Leveson, one of the authors of the critique its first Chair. A review of its work in 2017 found that two of its first major guidelines resulted in unexpected increases in sentence severity.

In their Howard League critique, the Judges say the Sentencing Council’s role is to ensure a proportionate structure for sentencing, meaning that the increase in minimum sentences for one crime will necessarily have a knock-on effect across the board. But why should longer sentences for homicide or sexual offences require a harsher approach to theft or burglary?

In fact most sentencing guidelines have sought to maintain the existing practice of the courts rather than toughen it up but the increase in sentence severity for most categories of crime since 2010 suggest that they have in large part failed, too often acting as an accelerator rather than brake on the use of prison. 

I’d like to see current sentencing levels recalibrated downwards on the basis of effectiveness and cost - one of the factors the Council must consider. So too it seems do the retired Judges. But the Council has been unwilling to do it.

Indeed, after a consultation, in 2021 the Council concluded that it was not its role to reverse any observed trends in the prison population. They argued that “were it to seek, artificially and unilaterally, to raise or lower sentence levels without good cause – whether in general or for specific offences – it would rapidly lose the confidence of sentencers, a broad range of public opinion, and no doubt a significant body of opinion within Parliament.” Surely the Judges’ critique lays out a very good cause.

The retired Judges call for “an honest conversation about what custodial sentences can and cannot achieve and their human and financial costs,” mirroring a call by the Justice Committee in the last Parliament who concluded that “public debate on sentencing is stuck in a dysfunctional and reactive cycle”.  In his latest Annual Report, the Chief Inspector of Prisons argued "there is a pressing need for a much bigger conversation about who we are sending to prison, for how long."

This is another area where the Sentencing Council has been found wanting. In 2011, Lord Justice Leveson wrote in its first Annual Report that it had a significant opportunity to contribute … to wider public understanding of issues of sentencing.” He and his co-authors now recognise that 14 years on “the public has a poor understanding of sentencing, receiving most of their information from media reports on individual catastrophic cases”.

A better level of debate is of course needed – and to my mind one that is more adult than simply distinguishing between people we are cross with and those we are scared of, as a former Lord Chancellor frames it.  

But ensuring a constructive and viable way forward requires action, not just words.

 

The Fire Next Time?

 

As wide-ranging collective failures to prioritise fire safety are laid bare in the report into the Grenfell Tower tragedy, what’s being done in a high risk area where central government has sole responsibility- prisons? 

As the Prison Service’s Instruction to its staff makes clear “a  fire occurring anywhere within custodial premises could have serious consequences in terms of life, safety, business continuity and security”.

And many do occur. Latest Home Office data show that in the last financial year, Fire and Rescue Services attended 1,892 incidents in prisons and young offender units in England-an 82% increase on 2022-3.

Trends are broadly consistent with figures released by the Justice Ministry showing that including prisons in Wales, the number of fires in cells rose from 1,410 in 2022 to 2,287 in 2023- up 62%.

While there were only three fire related fatalities in prisons between 2016-17 and 2022-3 (the latest period for which data is available), there were 887 non-fatal casualties over the seven year period. This category comprises a range of cases needing precautionary checks as well as hospital admissions.

Of concern is the fact that the Home Office data show that in more than four out of five incidents attended by Fire Services last year, there was no safety system in place- such as sprinklers or misting.

The Prison Service has embarked on a much needed Fire Safety Improvement Programme to increase detection and fire suppression measures in its establishments. The aim is to bring all prison accommodation up to modern fire safety standards by the end of 2027, a commitment made to the Crown Premises Fire Safety Inspectorate (CPFSI) who enforce the standards in government buildings.

The last HMPPS annual report said 4,000 places were brought up to par in 2022-3, leaving 26,000 to work on. In March this year, 23,500 still lacked automatic fire detection suggesting only 2,500 cells were upgraded in 2023-4.  At that rate of progress, HMPPS will struggle to complete the work by 2030 let alone 2027.

Troublingly, the latest HMPPS annual report also said that “prison capacity pressures have restricted our ability to take places out of use for refurbishment and compliance works”. Pressed by MPs on the Justice Committee, then Prisons Minister Ed Argar denied in March this year that any essential works necessary to address critical risks to life had been paused. But there has been slippage.

The Independent Monitoring Board at HMP Leicester said in their report on the year to January 2024 that “the project to complete the fire safety and other alarm systems has been further delayed and is still not complete after three and a half years”.  The delays may not of course have been to prevent loss of capacity. At HMP Lewes, there were problems relating to “the age of the building and the state of the electrical system, with cost and compatibility issues.” But its not inconceivable that the desperate need for cell space has led to some improvement work being postponed.

So what should the new government do to manage fire risks in prison more effectively?

First and most important is to ensure that the funds are available to maintain the programme of fire safety work to meet the 2027 deadline if at all possible.

Second, they should take a look at the adequacy of the CPFSI, which has a staff of 15 to enforce standards in 16,000 government buildings. The fact that it has only just published its annual report for 2022-23  suggests it may be struggling.

Third, given that prisons pose by far the highest risk among public buildings, should HM Inspectorate of Prisons (HMIP) look at fire safety issues during their visits to places of detention?. Their report on HMP Chelmsford published in May 2024 fails to mention that the prison was subject to an enforcement notice which was in force at the time of their inspection visit in February, according to the CPFSI register at least.

Three other public prisons and two private ones also had notices in force in February 2024 when the register was last updated. 

Fire safety is something which Ofsted look at in their inspections of Secure Childrens Homes, criticising the obstruction of a fire exit route in one. Why shouldn’t HMIP?

There are practical steps which the prison service and individual prisons should take to reduce risks. Argar promised before the election that an ignition-free Safer Vape Pen will replace the existing product, which is apparently the source of approximately 80 per cent of fires set in prisons. 

But there are structural measures needed as well. The Grenfell report recommends the government bring responsibility for the functions relating to fire safety currently exercised by the Housing Department, the Home Office and the Department for Business and Trade into one department under a single Secretary of State.

Clearer lines of accountability and scrutiny are needed to promote fire safety in prison too.

Capacity Crisis hits Women’s Prisons

 

While the capacity crisis has been most acute in men’s prisons, it’s having a negative impact on women too. The local watchdog at Downview, a closed prison for sentenced women in Surrey report today that while numbers there dipped below 200 during the pandemic, in the year to May 2024 at times they reached the full capacity of 356. The prison has seen increases in assaults, self-harm and use of force, expected with more prisoners but troubling none the less.      

National pressures have reduced the prison’s discretion about who to accept on transfer from other jails creating “a frequently complex mix of women” with significant mental health needs, drug-related issues and problems associating with other prisoners.

Some women arrived with very short sentences left to serve and family based far away. They commented that transferring is as bad as being punished, as they usually lose work or education and, therefore, income, for several weeks.  

Others were acutely mentally unwell and placed in the Segregation Unit where, “staff faced severe aggression and repeated assaults; flooding and destruction of cells and furniture; bodily fluids thrown at them; unrelenting screaming and shouting (including racial abuse aimed at staff and other prisoners); and refusal to eat or wear clothes.”  Some were transferred from prisons that had 24-hour healthcare and a larger mental health team than Downview.

Many of these women should clearly be in a healthcare setting rather than prison. Others do not need to be in prison at all. The IMB report on one woman transferred to Downview on recall for just 12 weeks. The recall was for a failure to attend her probation appointment 20 years ago. She had not committed any further offences in that time and was now a mother, with school-age children and secure employment. What on earth was going on here?

Fire Alarm

 

One of the most troubling findings in today’s Independent Monitoring Report (IMB) on HMP Lowdham Grange is the huge increase in cell fires started by prisoners. In the 12 months to February 2024, 162 were recorded, compared to just 21 in the preceding 12 months.

As the local watchdog says

In-cell fires put the prisoner, staff and other prisoners at significant risk of harm, and cause damage to cells, which is expensive to repair. The Board understands that each fire requires the Fire Service to attend as an emergency, and this increase has placed considerable pressure on local resources.

The report notes that on one occasion last summer, “25 prisoners refused to lock up to allow fire officers to enter the wing where a fire had been set”. This was symptomatic of a loss of control at the Category B Nottinghamshire prison where in September prisoners returned to their cells only after the ‘Riot Act’ was read to them on two successive nights.

Rising violence, self- harm and drug use – by the end of the year more than half of mandatory drug tests were positive- have reflected in part changes in the management of the prison. Sodexo took over the running of the prison from Serco in February 2023 but were unable to do so safely. The public prison service (HMPPS) stepped in in December and has been running it since.

The Prison Inspectorate  found early evidence in January that “actions taken since step-in had begun to improve safety and reduce protesting behaviour”. When HMPPS took over, they found the largest number of weapons ever recorded in one lock down search.

As for fires, although there were none recorded in December 2023, today’s report notes that in January 2024 – the month after the step in- there were 21.

Data released in May shows that Lowdham Grange had the most fires of all the prisons in England and Wales in the last calendar year.  Across the prison estate, 2,287 fires were recorded in 2023, 62% more than in 2022.

Then Prison Minister Ed Argar wrote that  

the overwhelming majority of the cell fires in prisons are classified as small and are quickly dealt with by staff. All prisons have an Arson Reduction Strategy which includes measures for managing prisoners who are known to present a risk of fire setting: these measures include strategic cell location, and control of access to ignition sources and combustible materials.

Current pressures on prison capacity are likely to impact the opportunities of strategic cell location. As for combustible materials , the IMB in another prison, Hindley, whose annual report was published this week, expressed concern that:

whilst the misting/sprinkler system deployed in the cell has been successful to date, it is only effective if the volume of combustible items within the cell are controlled. The Board have been aware of examples this year where prohibited items such as extra mattresses, electrical items (i.e. microwave and a heater) have been found in cells. In addition, some cells have a build-up of litter and other combustible materials deposited in the window grills. Much of this is plastic which if ignited will potentially produce dangerous gases with associated risk outcomes.

Argar promised in May that during this financial year the prison service will introduce an ignition-free Safer Vape Pen to replace the existing product, which is the source of approximately 80 per cent of fires set. While his successor James Timpson has a lot on his plate, he should ensure that this is done as a priority. Both the Inspectorate of Prisons and the IMB’s should also routinely scrutinise the data on fires in the prisons they monitor along with the measures in place to reduce and respond to them.

Intermediate Treatment

 

Not surprisingly, we’re seeing a plethora of proposals for new Justice Secretary Shabana Mahmood about how to solve the prison crisis. If I was in her job, I’d be particularly attracted to the Howard League’s idea of returning responsibility for prisons and probation to the Home Office. But I think that’s unlikely and undesirable. Peter Hennessey rightly described the Home Office as the graveyard of liberal thinking since the days of Lord Sidmouth.

Most of the suggestions being floated by think tanks, charities and experts focus on reducing demand for prison places in the short term through early release. Implicit in many proposals is the notion that when the 20,000 new prison places are up and running in a few years’ time, some sort of equilibrium will be restored between supply and demand.

I’ve argued that a new way of developing policy about  who should go to prison and for how long, distanced from party political competition, might reverse the sharp rises in the custodial sentencing rate and length of prison terms we’ve seen in the last 14 years.

In addition we need to diversify the range of options that can be used as alternatives to prison.

Some of these are institutional alternatives. Many people in prison should be in hospital but thresholds for transfer and waiting times are both too high. The Justice Select Committee asked then Prisons minister Ed Argar about the number of available secure hospital beds for prisoners but doesn’t seem to have received a reply. There are simply not enough. 

Other prisoners could potentially be transferred to residential treatment facilities which are being expanded as part of the 10 year Drug Strategy.   

Other options include hostels and other supervised accommodation. From 2019 to 2023 the Approved Premise Expansion Programme delivered 169 additional beds, including opening 4 new Independent Approved Premises (83 beds) and 51 additional beds in dedicated premises for women.  But there’s a case for a much more ambitious increase in half way houses. It could be paid for by paring back the prison building plans to say 15,000.

Back in 2001, the sentencing review carried out by senior Civil Servant John Halliday recommended that the Home Office- they were responsible back then- should

“establish a review of the existing “intermediate estate” for accommodating and managing offenders in the community, with the aim of developing a strategic plan for its future use, staffing, management and development. The review should embrace all types of accommodation, whether owned by the prison or probation services, or the independent and voluntary sectors, and whether used for prisoners on temporary release; prisoners on conditional release; offenders serving community sentences; or ex-offenders receiving support voluntarily”.

I am not sure such a review was ever done – but it’s certainly needed now.

Three years after Halliday’s review, then Home Secretary David Blunkett announced that “satellite tracking technology could provide the basis for a 'prison without bars', potentially cutting prison overcrowding, and expensive accommodation”.  

Progress with electronic monitoring has been chequered during the intervening years. But the review should look at whether the role its currently playing is optimal or whether it can serve to manage security risks for people placed in non-secure accommodation- what Halliday called “containment in the community”.

 As well as the where of alternatives to prison, there’s a need to look at the how.

Back in 1979, I started work as a volunteer in IT- not computers (there weren’t many back then) -but Intermediate Treatment. With mixed results, I spent most of the next ten years trying to keep young people out of residential care homes, detention centres, Borstals and their institutional successors.

A generous description of the approach might be “eclectic”- camping trips, sports and drama sessions as much as counselling and groupwork. One troubled young man was placed on a ship in the Caribbean for several months, and an IT officer in a neighbouring area allegedly entered a crew into the Henley Regatta.

Quirky some of it might have been, but with relatively small caseloads, we were able to fashion a wide-ranging  package of therapeutic and constructive activities for each individual which would help give them the best chance of staying at home, at school or work and out of trouble. 

Of course there are resonances with the best of the approach in youth justice and even parts of probation today.  Theres a growing recognition that relationship based practice is a key to successful supervision and desistance from crime.

Practitioners need to have the opportunity and training to put that into practice so that more offenders can serve their sentences in the community and those that leave prison don’t go back. By enabling that to happen alongside a wider range of treatment and accommodation options, Ms Mahmood may be able not only to find a solution to the immediate crisis but chart a more positive long-term course.   She will need to work with her colleagues responsible for health and local government to make it happen.  Let's hope she does.  

Taking the Politics Out of Punishment

 

If the new government’s most urgent task on prisons is to navigate an immediate way through the current population crisis, they should also be considering ways to avoid a repetition in the future.

When last in power, Labour ministers reviewed how to improve the balance between the supply of prison places and demand for them.  Despite the 2007 recommendation for an effective, integrated and transparent planning mechanism that reconciles penal capacity with criminal justice policy, the institution which emerged after three years of wrangling – the Sentencing Council - has not been willing or able to fulfil that role.

Since then, Parliament and the courts have been busy willing the ends of more and longer prison sentences but not the means of enforcing them. Hence the recent flurry of measures to release prisoners early which Labour accepts it will have to keep in place in the short term if they form an administration. 

In the long term they should consider two options. First, the modest idea recommended by Parliament’s Justice Committee that policy proposals on sentencing should be subject to independent evaluation, so that the resourcing implications are recognised before they are enacted.  

When it’s introduced, most but not all criminal legislation is already accompanied by an impact assessment which estimates any need for additional prison or probation resources to implement it. The future prison population is projected annually.  So legislators know what’s coming. But knowledge of impending pressures in prisons have not stopped governments adding to them, rendering them unmanageable over the last year.

So something more is needed.  

Ten years ago, the British Academy argued that penal policy needs to be insulated from the short-term political and media pressures which so often prioritise populist initiatives over a principled and sustainable approach.  A Presumption against Imprisonment  recommended the creation of a Penal Policy Committee (PPC), accountable to Parliament, comprising wide representation and expertise. Distanced from party political competition, the PPC would develop and formulate the approach to who should go to prison and for how long.

Such an approach would take full account of the financial, social and ethical costs of prison as well as its practical availability.  The British Academy suggested that the Sentencing Council, working to a revised remit, would then be able to implement the policies on sentencing outlined by the PPC.

The Sentencing Council currently takes the view that “absent an explicit statutory remit” were it to seek, artificially and unilaterally, to raise or lower sentence levels without good cause it would rapidly lose the confidence of sentencers, the public and MPs.   Arguably within its current remit, the lack of prison places provides a good enough cause to lower sentence levels. But a new mandate would certainly be helpful    

Is this an idea whose time has come?

Within a week of winning the 1997 election, new Chancellor Gordon Brown announced the transfer of the task of setting interest rates to an independent body of experts in the Bank of England. Few now question the role of the Monetary Policy Committee. If such a body can determine fiscal policy, why not something similar in criminal justice? It should certainly be explored in Labour’s promised sentencing review.

Critical Reviews

 

If Labour forms the next government what will happen to sentencing and the prison population? Much will depend on the outcomes of two reviews which its manifesto says it will carry out. One is a review of sentencing “to ensure it is brought up to date.”  The other is a strategic review of probation governance, “including considering the benefits of devolved models.” The terms of reference for each of these and who does them and how quickly, could determine the penal direction of Starmer’s premiership.

On sentencing, Labour think that when criminals are found guilty, “the sentences they receive often do not make sense either to victims or the wider public. This is particularly worrying for offences against women and girls”. They aren’t clear whether their review will focus only on such offences or take a broader look at sentencing levels across the board.

Either way, given that “tough new penalties for offenders” are seen as one of the measures Labour hyperbolically deem necessary to “take back our streets”, there is a risk that the review will simply lead to more people going to prison for longer through increased maximum sentence lengths.

What’s surely needed is a genuine and dispassionate assessment of sentences and their enforcement and of what needs to be done to ensure that they make sense to victims and the public apart from making them harsher. 

For one thing prisons can’t cope with more sentence inflation and Labour’s plans to increase capacity look unconvincing. More fundamentally, the prison population rate in England and Wales (and Scotland) is already very high. The latest Council of Europe statistics find they are the only jurisdictions in Western Europe with a rate more than 25% higher than the median value in CoE countries. Let’s hope the review takes account of the financial, social and ethical costs of imprisonment as well as superficial views of what the public say they want.

Why not ask the Sentencing Council to do it rather than civil servants? It would provide an element of independence which might prevent the review coming to an entirely foregone conclusion. The last sentencing review conducted by civil servants before the 2019 election was a travesty, involving no research or evidence paper, no meaningful consultation and no outcome published. When I tried to get a copy a judge ruled that “publication would present  a significant risk of undermining the confidential space needed by the MOJ to discuss and formulate policy in this controversial area”. The decisions taken after that review - to increase the proportion of sentences served in prison for sexual and violent offenders- led in part to the prospect of an unmanageable prison population. Let’s hope we don’t go further down that dismal road.

As for the strategic review of probation governance, the mood music is considerably better. The former Chief Inspector of Probation Justin Russell (a one-time Labour staffer) wrote last year that “the time has come for an independent review of whether probation should move back to a more local form of governance and control, building on the highly successful lessons of youth justice services.”

On this I’d like to see a broader look at the case for a more integrated local response to supervision in the community. Why not Adult Offending Teams as well as YOT’s? A more genuine effort to meet the needs of people on probation would almost certainly lead to less re-offending and recall- although the review could usefully look again at the desirability of imposing breachable supervision following all short sentences.

Consideration of the benefits of devolution could even include building in more local responsibility for the funding of prisons through so-called Justice Reinvestment.

If Russell is interested and available, could he be the person to lead the review?

 

 

 

Which Prisoners can Vote on 4 July?

 

The General Election on 4 July 2024 is the second since the UK settled the prisoner voting cases in the European Court of Human Rights. In the Hirst group of cases, the Court found that the blanket, automatic restriction on all convicted prisoners voting in parliamentary elections violated Article 3 of Protocol No. 1 to the European Convention on Human Rights which requires that elections ensure the free expression of the opinion of the electorate in the choice of the legislature. 

After years of toing and froing, in November 2017 then Justice Secretary David Lidington somehow managed to satisfy the Council of Europe that some very minimal administrative reforms brought the UK into compliance. Voting rights were extended to prisoners released on temporary licence (so-called ROTL) who are in the community on the date of an election. Lidington estimated this would affect up to 100 convicted prisoners but at the time of the 2019 election I thought the number might in practice be at the low end of the range.

This will be the first General Election since the Prison Service published its “Restrictions on Prisoner Voting Policy Framework” in 2020 which sought to clarify the position. So where does this leave prisoners’ rights to vote on 4 July?

As before the Hirst cases, remand prisoners (both untried and convicted but unsentenced) will be eligible to vote- there were 16,458 at the end of March 2024 (considerably more than the 9,512 at the end of September 2019).  

Prisoners released under Home Detention Curfew (2,169 at the end of last week) also have the right to vote as do those detained for matters such as non-payment of council tax or contempt of court. There were 412 non- criminal prisoners at the end of March, but the figure may include people held under the Immigration Act who do not qualify to vote.  The small number of fine defaulters in jail are to be also able to vote if they wish.

To get an idea of the numbers subject to release on temporary licence who may be eligible to vote, 4,500 individual prisoners were on ROTL at some point during the last three months of 2023, but the numbers in the community on the dates necessary to register and to vote will be much lower- hence Lidington’s estimate of less than 100.  

In addition, there are an unknown number of prisoners in the community subject to end of custody supervised licence, the emergency early release provision introduced and extended to cope with overcrowding pressures. As things stand, they seem ineligible to vote but arguably should be allowed to.  

Eligibility is of course only one part of the story. In order to cast their ballot, an eligible prisoner must register to vote, in this case by 18 June. Some may already be registered. For those who wish to register, the Prison policy makes clear that “no convicted prisoner can register to vote when they are in prison, including those who anticipate being on HDC or ROTL at the time of an election. Prisoners on HDC or ROTL are only eligible to register to vote once they are in the community and become ineligible again upon any return to prison”.

As for where they register vote, some eligible prisoners may be able to register to vote at their home address, others by making a declaration of local connection based on having a significant link to a particular locality. Eligible prisoners may be able to register to vote giving the address of the prison establishment where they are held, but this does not apply to prisoners on HDC and ROTL. Whether or not prisoners are able to register in these ways will be subject to the discretion of Electoral Registration Officers, the Council officials who maintain the electoral roll.

Once these hurdles are crossed, there is the voting itself. Convicted prisoners on HDC and ROTL who have registered can vote in the normal way or apply for a postal or proxy vote. Remand, civil prisoners and fine defaulters can apply to vote by post or by proxy from prison. Staff should ensure relevant application forms for absent voting are available to prisoners if requested.

There is nothing in the Policy Framework about whether prisoners can vote in person in prison. There is a strong case for the ERO to make such arrangements, particularly in prisons with large numbers of remand prisoners. Wandsworth has more than 600 remand prisoners. I’d be interested to know the practice.

For those interested in the topic, a useful article on The Administrative Disenfranchisement of Prisoners in England and Wales was published in the Prison Service Journal last year.

A School and a Prison

 

In the famous words of Victor Hugo, “he who opens a school door closes a prison”. What would he have made of Oasis Restore the first secure school formally opened this week and soon to take its first detainees /pupils? After all it’s both an educational and custodial institution, but one which for Oasis founder Steve Chalke represents "a revolution in youth justice.”  

Its more than eight years since Prime Minister David Cameron talked of turning existing Young Offender Institutions (YOIs) into high quality schools, and five years since Oasis won the tender to run the first of them. Delays have resulted from the need to put the right legal arrangements in place – even now there’s legislation going through Parliament - and to spend upwards of £40 million to remodel the old Secure Training Centre at Medway.

In the meantime, existing YOIs and STC’s have for the most part struggled badly with Rainsbrook STC closing in 2021 and Cookham Wood YOI this year, urgently justifying the case for a new approach.

Secure Childrens Homes (SCH) have fared much better. To my mind, expanding conventional SCH places might have been a more cost effective, quicker, and less risky option than creating an entirely new hybrid model delivered by an organisation with no experience of running secure care. But we are where we are.

While there’s much to applaud in the educational and therapeutic aspirations of those involved, the Medway Secure School follows in a long line of institutions that have promised to turn around the lives of the most troubled and troublesome young people yet mostly failed to do so.  The road to penal hell is paved with good intentions. But we should all wish the Secure School well as it offers the possibility at least of a much more humane and less punitive approach to young people. But there are questions.

First is too much being made of the “revolutionary” approach being adopted? It’s reported for example that there are “teachers rather than guards.”  But of course there are specific officers to maintain and support the safety and security of the academy.  According to the Oasis proposal to run the school, “should restraint be needed; security guards will do this safely and with the least amount of restriction as possible.” Good that they minimise the use of force but let’s not pretend there are no guards. The normalised use of physical restraint has probably been the single biggest shortcoming in Secure Training Centres so the School must find safe ways of managing very volatile young people.  An ethos of “relentless love” and “healing” may not be enough.

Second, what is the core approach of the Secure School? Maybe it’s me but despite the many positive and constructive values espoused by Oasis on their website and in their proposal, what’s at the heart of the Secure School seems a bit elusive. Chalke says the core principle behind it “is an unshakeable commitment to the belief that the only way to create positive change for the young people we serve, as well as to make our streets and communities safer, is to ensure that restoration sits at the very heart of the youth custodial system.”  

What does that mean in practice? Who is restoring what to whom? To the young people, those they have harmed, their families? Time will tell.   

Third, how will we know what’s going on? According to an Assurance Handbook, conventional contract management won’t be applied with an approach instead “which accords more autonomy, provides integrated services, and assesses outcomes holistically and takes a collaborative problem-solving approach to continuous improvement”. That’s taking a lot on trust.

On the other hand, OFSTED will inspect twice a year though there’s no role for the Prisons Inspectorate. An evaluation strategy is supposed to be in place at least six months before opening, looking at safety and the indicators that contribute to reduced reoffending, for example, progress in education, intervention delivery and the quality of staff-student relationships.

It should also look at the extent to which the School is turning down referrals. As a type of Secure Childrens Home, Oasis Restore may refuse placements of children they consider “inappropriate." Persistent refusal of placements could however be considered a breach of the provisions of the Funding Agreement for which Ministry of Justice could issue a termination warning notice. Chalke says, “there are no exclusions from here”, but this issue will need to be monitored carefully. So too will the quality of care provided for the small number of girls likely to be accomodated. 

Self- styled revolutions are no guarantors of a better world. In a related field, the “Rehabilitation Revolution” produced the shambles of privatisation from which the probation service has yet to recover.

As for the Secure School, I’m cautiously optimistic that its small scale, the values driven approach of the staff and the goodwill behind the initiative will serve it and the young people well. But we cannot take it for granted.

What should a Labour Government do on Youth Justice?

Reshaping the approach to offending by young people formed an important strand of New Labour’s domestic policy agenda from 1997-2010. This was based on the idea that an effective response to children and young people in trouble can prevent them going on to a life of crime and therefore contribute not only to a safer society but reduced spending on justice and prisons in the long term.

While the national Youth Justice Board (YJB) and local Youth Offending Teams (YOT) are still in place to provide a constructive multi-disciplinary approach to children who offend, services available from police, local authorities and the NHS has been hard hit. The YJB and YOTs need to be relaunched and re-energised if they are to effectively meet the challenges facing an incoming government. The system of closed institutions for the most serious and persistent young offenders has been in crisis for much of the period since 2010 and requires urgent and sustained attention. 

The Labour Party has announced that reforming services for young people will be the focus of a major cross-departmental initiative, Young Futures, if it wins the next election. Key to that will be an investment in the recruitment, retention and capacity building of staff working with young people in trouble, making use of the growing evidence base put together by the Youth Endowment Foundation. Providing opportunities for mentoring and therapeutic work must be as central to any self-styled crackdown as greater enforcement and punishment.

There are six key areas for development

 1) Promoting Best Practice in Prevention and Diversion

The evidence is clear that wherever possible children should be kept out of the formal justice system as much as possible because of the negative impact which arrest, court processing and sentences can have.  There has been a welcome fall in the numbers of entrants to the youth justice system but the way that this has been achieved and the kinds of alternative approaches used in response to youth crime and anti-social behaviour vary enormously across England and Wales. Identifying, promoting, and implementing the most effective forms of diversionary and restorative activity to offer is an important priority. So too is ensuring that practitioners in the police, youth offending services and other agencies are properly trained to deliver these activities.

2) Reducing the time from Arrest to Sentence

One of New Labour’s 1997 pledges was to halve the time from arrest to sentence for persistent young offenders. The target was met by 2001 but delays have crept back into the youth justice process despite the big fall in numbers prosecuted.  While these reflect well known problems in the system as a whole, priority should be given to speeding up cases involving children and young people.

3 Professionalising Youth Justice

Youth Justice suffers from the paradox that crime committed by children is of great political and social concern, yet its practitioners lack professional recognition. This lack of recognition affects their status and identity with other relevant professionals such as teachers and the wider public. To fix this, investment is needed in the provision of appropriate training and skill development and exploration of the scope for professional accreditation or registration.

4 Promoting Relationship Based Practice with young people in trouble

Research on what works in managing children who offend has found an increasing emphasis on the importance of how practitioners work with young people. Child First and Trauma Informed Practice have strong adherents, but a more overarching and comprehensive framework of evidence based practice is needed to engage the range of professions and agencies working with young people in trouble in the community, residential care, and secure settings. Relationship based practice provides such a framework and should be encouraged across the piece. It involves attitudes – such as being open, honest, optimistic, and hopeful – and techniques like motivational interviewing, pro-social modelling and problem solving.

5 Extending the Youth Offending Team approach to Young Adults

Locally based Youth Offending Teams have proved largely effective vehicles for applying multi agency work with children who offend. Inspection reports have been mainly positive in stark contrast to those about probation services. The YOT approach would have value with older teenagers and young adults, who often do not reach adult maturity until their mid-twenties. Piloting the use of youth justice measures with this older cohort should produce better outcomes than interventions led by a probation service still struggling to recover from rapid organisational changes and unsustainable demands .

6 Transforming Training of Staff in the Custodial Estate 

The Chief Inspector prisons recently reported that Young Offender Institutions (YOIs) employ hundreds of staff, yet they barely talk to the boys in their care.  Many young people spend relatively short periods out of their rooms each day. Almost one in five staff have been leaving YOIs. Given the historically low numbers of children and young people in custody, there is scope for a major initiative to improve the education and skills of staff through distance learning supplemented by practical experience. The long awaited Secure School due to open shortly may provide a model for transforming the system as a whole, but we cannot wait for that.