Spurring On Prison Reform

  Earlier this week, Justice Secretary Michael Gove told the House of Commons, not for the first time, that he wanted to see prison governors given more freedom along the lines of Academy Principals or NHS Trust CEO’s. Gove believes that with increased autonomy in a structure of clear accountability, significant improvements can be achieved in the  prison service (whose dire performance was once again indicated by the latest data on deaths,self-harm and assaults).

At the same time a mile or two away, Michael Spurr the Head of the National Offender Management Service was telling the Annual General Meeting of CLINKS (the umbrella organisation for prison charities) just how difficult it was going to be to make Gove’s governor autonomy policy  happen in practice.

In an admirably candid talk, Spurr said he had hoped for a period of consolidation after the substantial changes to prisons and probation wrought by the last government. But Gove’s refreshing reform agenda offered huge opportunities, with 10,000 new prison places in 9 new prisons enabling a new model of imprisonment in which overcrowding and idleness could be, if not eradicated, then much reduced. 

But as for the governor autonomy agenda, Spurr admitted there were many thorny issues to resolve. In a perhaps too candid example, he pondered aloud whether a governor who wanted to introduce overnight family visits would be allowed to do so. A lot of head scratching in Whitehall seems to be going on about where the limits to freedom of action should lie. But don’t bet on conjugal visits surviving the first ministerial briefing or outing in the Daily Mail.

In education, freedom from local authority control has brought with it the ability to depart from the national curriculum, set pay and conditions for staff, change the length of school terms and school days. Along with greater control over budgets principals have responsibility for their buildings and their management.  Could prison governors be given these kind of powers?

Take the analogy with the national curriculum. Would Gove’s brave new world allow governors to disapply Prison service orders or instructions if they so wish? As things stand, even private prisons which seem to be Gove’s model, can’t do that. A recent study of competition illustrated the weight of prescription by showing 15 pages of a contract specifying how prisoner can use their own cash to buy goods.  Are these to be ripped up and if so how many of the pages? Will newly empowered governors be able to opt out of the ACCT suicide prevention scheme or relax security procedures? Or decide to dispense with accredited offending behaviour programmes in favour of activities of their own liking?  These standards are there for a reason. They reflect the fact that prisoners are in a uniquely vulnerable position and both they and society have the right to expect they are cared for in an ethical and principled way.

 Presumably some standards will be required to be met (and inspected) in the new regime, but in prisons unlike schools the price of failure is counted not in not poor exam grades but escapes, reoffending and human rights violations.  If things go wrong, ministers will not be able to stand idly by. Spurr took some flak yesterday for his honest appraisal of the way the Transforming Rehabilitation reforms have weakened the ability of the centre to intervene in probation services now contracted out and paid by results. CRC’s who have failed to engage with third sector providers, whatever promises they may have made, look untouchable. Will that be the case for Gove’s Governors in his nine new prisons?

In existing jails, education, health and, since last year, resettlement activities are all outsourced. Prison Governors haven’t had a say in how those contracts have been let. Of course they could do so in future. There’s a lot to be said for concentrating commissioning responsibility in the hands of the governor but unless Gove can buy out existing contracts he’s stuck with the existing choreography for several years to come in the bulk of his system.  With Wrexham opening next year and the new facilities scheduled during the lifetime of the parliament there are opportunities for the new model to be introduced. But by the time it starts to happen, there’s a fair chance Gove will be out of government and by the time it’s finished his party may be out of power.      

But what his scheme will enable in the short term  is a bonfire of headquarters, with no longer a need for policy development, learning lessons, monitoring outcomes or system wide planning. Devolving power will provide a pretext for big cuts at the centre and the eventual disappearance of NOMS.  Gove said today that his reversal of Grayling’s legal aid cuts had been made possible in part by   economies he has made elsewhere in his department. This is probably one of them.  

Avoiding Long Sentences

 Yesterday the Sentencing Council published an assessment of the impact which its Guideline on Burglary has had on sentencing trends since it came into force in 2012.  I came across it by chance – it doesn’t appear on the “Latest from the Sentencing Council” bit on their homepage, but is tucked away under Publications.

The Council may not have wished to draw attention to the study because on the face of it, the results raise embarrassing questions about the value of guidelines . The Burglary Guideline was supposed to increase consistency and "regularise practice", rather than "substantially altering it”.  The research found that in fact there has been a shift towards more severe sentences for all kinds of burglary and for non- domestic cases “a steep increase” with average custodial sentence lengths going up 13% between 2011 and 2014.

Much of the report looks to attribute the changes to factors other than the Guidelines such as pre-existing upward trends or the effect of the 2011 riots in London and other cities. The report argues for more research to identify why there has been a change contrary to the resource assessment – the exercise the Council is required to undertake to estimate the impact of their guidelines on the need for prison and probation places. In the case of burglary no change in disposal types or length was anticipated in the final resource assessment published in 2011.

Something seems to have gone seriously awry, with judges seemingly either misinterpreting the Guideline or ignoring it. The Crown Court Sentencing Study published last year found that in 97% of cases Judges sentenced within the (generously wide) prescribed range for the various burglary offences; but for sentences of “domestic burglary” and “non-domestic burglary” virtually all departures from the guidelines were above the offence range. The latest study findings make it look plausible that in addition,  some at least of the Courts which have sentenced within the ranges have nevertheless upped the going rate in a way that was neither intended nor predicted. 

Whatever the reason, sentence inflation has certainly happened and as the resource assessment document pointed out in 2011 “since sentencing for burglary costs around £260m a year, small changes to sentencing practice have the potential to have substantial resource implications”. These cannot have been welcome to the cash strapped Ministry of Justice who, according to the Permanent Secretary, have had to introduce unusual and controversial measures last year to avert a several hundred thousand pound overspend.

But the research points to a brutal truth that the ministry and its boss must face. It was put eloquently in the House of Lords yesterday by Lord Dholakia who argued that “sentencing guidelines should scale down the number and length of prison sentences except for the most serious crimes”; and that the Government should legislate to make sentencing guidelines take account of the capacity of the prison system.  Unless they take those kind of measures, Mr Gove’s warm words on prison reform will be destined to remain just that.

What to do about G4S?

I couldn’t watch last night’s Panorama investigation of Medway Secure Training Centre (STC). I’m working abroad this week, ironically at a juvenile detention centre where G4S were relieved of their contract in 2010. But I have seen excerpts and read enough about the programme to recognise that if this is not quite youth justice’s Mid Staffs moment , it is at least its equivalent of Winterbourne View. This was the private hospital near Bristol where an undercover Panorama investigation in 2011 revealed criminal abuse by staff of patients with learning disabilities.

It will be interesting to see whether what  emerged following  that programme five years ago are mirrored at Medway; residents too far from home, high rates of physical interventions , particularly restraint; agencies failing to pick up on key warning signs; management failure and a closed and punitive culture. Winterbourne view was closed within a month and major changes resulted, both in the treatment of people with severe learning disabilities (for example reviewing the appropriateness of placements in hospital) and in the regulation of providers (with stronger accountability and corporate responsibility for owners and directors of private hospitals and care homes and tighter inspection). Could we see analogous change in youth justice?

I have a particular interest in STC’s because, as some people won’t let me forget, I had a hand in their invention.  Working on secondment in the Home Office in the early 1990’s, I found myself advising ministers about how to deal with what they saw as a  national crisis caused by  persistent young offenders, which was made much more acute by the horrific murder of James Bulger by two ten year old boys. Despite my and others advice, Kenneth Clarke was determined not only to create new closed institutions but to open up their running to the private sector. I well remember his junior minister Michael Jack, during visits we made to existing local authority secure units and Youth Treatment Centres (after the STC's had been announced) wishing that the decision to create something new had not been taken so precipitately. Jack seemed to echo then shadow Home Secretary Tony Blair’s view that if new secure places were indeed needed, it was insane not to expand existing provision.

I remember too attending a meeting at G4S’s then headquarters in Broadway where they explained their ideas for the new STC’s. They suggested that professionally trained and qualified staff were not necessary as it was simply a question of developing the correct procedures and getting staff to follow them. Staff thinking for themselves was seen as undesirable.  If this was the approach they in fact applied when they won the first contract, it was to be exposed as grossly naïve when Medway faced all sorts of management problems when it finally opened in 1998.

What does the current scandal expose?  For the second time in two years G4S has been shown unable to care for vulnerable and challenging young people in an acceptable way. There surely comes a point when they or the government must recognise that this is institutional failure. Unfortunately new contracts have recently been signed and the company will continue to run Medway and Oakhill STC’s while handing over Rainsbrook to new operators in May. Assuming the contracts are not going to be rescinded, how can the safety and wellbeing of children be guaranteed?

First, at the very least the government need to look at the way G4S recruit, train, supervise and support their staff and insist on change if it is found necessary.  If there is a cost to the company, they should see it as a form of payment by results. The result of their current approach has been abusive and they should pay to fix it. The macro corporate renewal that was required after the tagging overbilling scandal needs to be replicated in their STC operation.

Second while G4S were at best foolish in appearing to shift the blame on other agencies for failing to spot the abuse before Panorama, the system of monitoring inspection and advocacy has undoubtedly failed. If the YJB’s days are already numbered, this latest debacle will almost certainly usher their demise when Charlie Taylor reports this summer. Funds should be diverted to enhance the child protection and advocacy systems within the STC’s.

Third, a much more thoroughgoing and independent review of custodial care of juveniles should be ordered, ideally led by a judge or lawyer. Mr Taylor’s youth justice review absurdly excludes issues about the age of criminal responsibility and the powers of courts.   Sir Martin Narey’s review of residential care is unclear in its scope and anyway compromised by his relationship with G4S and attempt to undermine the independent findings of inspectorates at Rainsbrook last year. Michael Gove is right that the best way to prevent scandals like this is to prevent children ending up in custody. He needs to ask how that can be achieved.

Unduly Concerned

Just as 2015 started with an unnecessary and potentially counterproductive idea for criminal justice reform – Lord Leveson’s suggestion that courts ask for fewer probation reports before imposing sentence- so has 2016. This year it’s the Attorney General arguing that his power to find sentences unduly lenient should be extended to a wider range of offences, notwithstanding the fact that his office cannot cope with the workload generated by the existing scheme.  To help with this, a pilot programme has  been announced to allow a wider range of prosecutors to conduct appeals into unduly lenient sentences on behalf of the Government- details of the costs involved in this have not been given.

Under the existing scheme, the number of sentences considered by the Attorney General’s Office has increased by 97% since 2010, up from 342 sentences to 674 in 2014. During the same period, referrals of cases found unduly lenient to the Court of Appeal rose 35%, from 90 to 122.  It’s not surprising that the success rate of complaints has fallen. Anyone at all can ask for a sentence to be reviewed - they don’t have to be involved in the case and only one person needs to ask. A quick email from any member of the public can trigger a review provided it’s sent within 28 days.

It’s true that the Conservative manifesto contained a proposal to enable a wider range of sentences to be challenged “to tackle those cases where judges get it wrong”. But with the resource pressures faced by the courts and prisons is this really a priority for the justice system?

Back in 2014, then Attorney-General Dominic Grieve seemed to think not, reminding Parliament that “the principle enunciated originally was that only a small number of cases in specified and very serious offences would ever be referred”. Last year his successor seemed much more enthusiastic about tackling anomalies in the kinds of offences which can be reviewed in order to boost public confidence. Today he declared that “It’s vital that the public are able to legally challenge custodial sentences and to make sure offences are being properly punished”.

If anything, there is a case that the Government should be looking to limit the way the scheme operates. Perhaps where the victim of the crime or someone else with a locus in the case has well founded concerns there is a case for review. But the problem with sentencing as a whole is less that it is too lenient and more that it’s too harsh.

 The Sentencing Council’s Crown Court Survey- now disbanded- found that in 2014 in assault and burglary cases, more sentences were above the recommended range than below it. Courts are under a legislative duty to impose a sentence within the offence range specified by sentencing guidelines, unless it is in the interests of justice to depart from this.  The vast majority of cases fall within the range but with burglary 3% of cases were above the range with less than 0.5% below it.

Of course a sentenced offender can appeal and a prosecution right to appeal could be seen to even up the scales.  But as Grieve said “there needs to be finality in sentencing and, of course, if many more cases are referred, that will place burdens both on the Court of Appeal in considering them and on my office in making the assessment”. It’s a burden the system could do without.

Five Criminal Justice Innovations from my Year

Make justice accessible: Mobile courts in Abu Dhabi














Develop useful alternatives to prison that build skills and serve the public :
Community service offenders work on a fishpond  in Kenya

Put human rights at the heart of prisons: Mission of Uganda Prison service on wall at Mbale  













Turn outdated prisons into museums to educate: Crumlin Road Gaol Belfast


















Or in the case of juvenile centres knock them down and use the bricks for art: 

Polk Correctional Facility  North Carolina 

2015 End of Term Criminal Justice Report: Some Signs of Promise but Must do Better

What should we make of 2015 as far as penal policy is concerned?  The new government has promised radical reforms at the heart of their agenda, but eye catching announcements like the closure of Holloway notwithstanding, we’ve yet to see much in the way of new policy or practice. As is always the case, there has been as much continuity as there has been change.

The controversial Transforming Rehabilitation reforms that placed 70% of probation work into the private sector got underway in earnest in February since when almost all prison sentences, however short, have been followed by a mandatory period of supervision after release. Inspection reports in May and November found the new arrangements presented a mixed picture noting continuing mistakes in allocating cases between the Probation Service and Community Rehabilitation Companies (CRCs), and variation in the quality of offender assessments. December’s revelation of serious failures by South Yorkshire CRC run by Sodexo confirms the impossible position faced by Paul McDowell who quit as Chief Inspector in February after it  had become known that he is married to the head of the company’s criminal justice operation.

Paul’s permanent replacement Glenys Stacey is due to start in the New Year and may wish to revisit the Inspectorate’s plan to discontinue monitoring the implementation of TR after March 2016- particularly if Sodexo fail to take remedial action and lose their contract in South Yorkshire. The National Audit Office plan to publish a report on value for money in the spring of 2016 but this looks too soon to be informative.  Proper scrutiny will be  essential   for a programme which NOMS former Director of Competition has recently described as untried, over complex and highly risky: “It is like watching people doing their best to organise the perfect train crash” he wrote in his book "Competition for Prisons Public or private?".

April saw reports that Sodexo were planning to replace CRC staff with automated kiosks and December saw Working Links reported to be planning large scale job cuts in their CRC's  in Wales and the West country, in part because numbers of cases are lower than forecast. In the context of these commercial woes it seems particularly unwise for the Magistrates Association to be relying on Working Links to help fill a hole in their budget- a conflict of interest that first came to light in May.

On prisons, new Justice Secretary Michael Gove surprised many with an impressive series of speeches promising progressive reforms, with backing from the very top of the Government. So far outline plans have emerged to replace old prisons with new and give Governors more freedoms but much of the detail must wait until next year. Gove won plaudits from reformers for reversing a series of his predecessor’s policies including the ban on books for prisoners, the secure college for young offenders and the criminal courts charge as well as a proposed prison training project in Saudi Arabia.

But at year end, there are signs the honeymoon may be over. Gove rejected almost a third of the recommendations made in Lord Harris’s review of self-inflicted deaths of young adults and has established a series of further reviews – on education and youth justice- which may not report until the summer of 2016. Nor will the new for old prisons plan deliver speedy change. Speeches aside, the new MoJ has not exactly hit the ground running.

The need for urgent action was made clear when outgoing prison Inspector Nick Hardwick reported on the worst outcomes for 10 years and more recent data suggest prisons are continuing to struggle with safety, violence and drugs - most recently it has emerged that the deployment of the National Tactical Response Group (NTRG) to deal with disturbances, has risen by more than 50 per cent in a year.  The prison population is projected to rise slightly less sharply over the next five years than was estimated last year, and Gove appears to have ruled out further reductions in staff numbers. But genuinely increasing education and rehabilitation opportunities will surely require a fall in prisoner numbers. While increased use of electronic tagging, greater opportunities for earned release and more aggressive repatriation of foreign nationals have been floated as options an overall strategy – such as justice reinvestment- is still lacking.

On the personnel front, Gove has brought ex NOMS supremo Sir Martin Narey onto the MoJ board to advise on prisons along with Sir Michael Barber who ran Tony Blair’s delivery unit. Narey’s intervention following the damning  independent inspection report on Rainsbrook STC can best be described as unwise while Barber found the space in his memoirs a few years back  to decry as absurd magistrates who avoided making custodial sentences because of their concern about the size of the prison population. Former counter terrorism police chief Peter Clarke will fill Nick Hardwick’s shoes inspecting prisons.

Elsewhere the House of Commons Justice Committee chaired by Bob Neill has started an interesting portfolio of work on young adults, the courts and restorative justice. The Committee is showing a promising critical spirit, censuring Gove for tapping up the successful candidates for the independent prison and probation inspection posts and calling for the criminal courts charge to be scrapped; ironically Neill was part of the standing committee  which voted down Labour amendments on the charge in the Criminal Justice and Courts Bill in the last parliament.

 Relatively little has been heard on criminal justice from Labour since the election but that is likely to change once Gove shows more of his hand. Whether they support constructive reforms or seek, as they did with Kenneth Clarke, to portray him as soft on crime will be one of the interesting political dimensions next year.

Why We Need a Rehabilitation Devolution

Among the wealth of information provided by the latest edition of the Prison Reform Trust’s excellent Bromley briefing, two findings stand out. First is the catalogue of troubles experienced by adults in prison compared with the general population. Prisoners are 12 times more likely to have been taken into care and regularly played truant as a child; almost two thirds have used Class A drugs compared to 13% of the general population while prisoners are over three times more likely to have no qualifications, never to have worked, or be homeless prior to imprisonment.16% show symptoms of psychosis compared to just 4% of adults outside.

A second notable fact is that the reduction in the use of custody for juveniles over the last five years has saved the Youth Justice Board more than £300 million. Taken together, these findings suggest a strong case for developing a strategy to shift resources away from imprisonment towards the kind of community based measures which can prevent people becoming involved in crime and meet their many health and social care needs if they do so.

Addressing many of those problems-mental health, education, addiction, and homelessness- are almost always matters for local agencies and organisations whether in the public, voluntary or private sector.  In a report out today published by Transform Justice, I show how giving local authorities and communities greater financial and organisational responsibility for preventing and treating crime in their area could both help to reduce it and to minimise the use of expensive and often ineffective national resources such as courts and prisons.

Drawing both on lessons from the USA and domestic pilot projects, Rehabilitation Devolution argues that if local agencies are made responsible for paying the costs of incarceration, they are more likely to take steps to reduce its use. Local authorities have shown they can use funds to lower the use of custody and making them pay for the costs of juveniles held on remand has contributed to a fall in numbers.  American states like Pennsylvania have established a formula that requires a percentage of cost savings achieved through reductions in prison numbers to be reinvested in public safety improvements while in North Carolina so called Justice Reinvestment initiatives have helped reduce prison numbers by 8%.

  

What does this suggest for England and Wales? The report proposes transferring responsibility for meeting the entire costs of custody for under 18's to local authorities and Police and Crime Commissioners (PCC’s), work to identify the best ways of transferring that responsibility to a more local level for young adult and women offenders, and inviting PCC's to chair new Justice and Safety Partnerships( JSP).  Involving judges, probation, prison, local government and health, the JSP’s would introduce greater regional voice in the system and provide a body to which criminal justice budgets might be devolved over time. The report also argues that as a localisation agenda moves forward local commissioners would not simply buy what is currently provided but develop the kind of  responses better able to serve their community’s needs. So rather than paying for  Feltham YOI, local authorities might be able to commission a less damaging environment for their troublesome teenage boys .

While this may look like bureaucratic and possibly unwelcome organisational reform, its purpose is to incentivise the bodies best able to deal with crime and offending to do so creatively and cost effectively. George Osborne’s spending review may have included an eye catching plan to close Holloway but modernising the prison estate apart, the Spending Review looks much like business as usual. New for old prisons may well be necessary but it is not sufficient to address our problems of penal excess.

Reducing sentence lengths is the most direct but politically riskiest strategy for reducing prison numbers - although the risks might be mitigated by intensifying regimes so a prison sentence of a certain length in the future counts for more than it does now.

 Alongside this, aligning the systems for sanctioning offenders with the measures which can prevent crime and reduce offending could help bring down the numbers in court and custody.  By doing so we can end up not with a near 90,000 prison population forecast last week but something approaching the norm for Western Europe which might see it closer to 50,000.