Hard Case, Bad Law? Puzzles about Worboys

The Divisional Court Judgment on the Worboys case raises a number of puzzles. The Court ruled that the Parole Board’s decision to release the serial sex offender was not irrational on the information it considered but the Board was irrational not to have sought more. To a non lawyer , that looks like a distinction without a difference. As Nick Hardwick put it in his resignation letter “we were wrong”. The two women who brought the case deserve great credit for doing so, although I am not so sure about the Mayor of London.

What surprised me most was the fact that the Parole Board decided to release Worboys while he remained a Category A prisoner. The Prison Service must have considered him a person “whose escape would be highly dangerous to the public or the police or the security of the State and for whom the aim must beto make escape impossible”. The court heard that direct release is ordered on Cat A prisoners a handful of times a year.  Shouldn’t it be prohibited altogether?

There also a mystery about why more of the complaints against Mr Worboys were not prosecuted. Was it because they did not reach the evidential threshold as the CPS claimed earlier this year. Or was it that the CPS thought a small sample of offences would be enough to reflect the overall criminality and result in an appropriate sentence.

The Code for Crown Prosecutors says that Prosecutors should select charges which: a) reflect the seriousness and extent of the offending supported by the evidence; b) give the court adequate powers to sentence and impose appropriate post-conviction orders; and c) enable the case to be presented in a clear and simple way. One of the prosecutors reportedly told victims that “there are dangers in putting too many charges on an indictment as the trial can be too long and complicated.” Had more cases against Worboys been proved, the IPP tariff would have been higher and his release would not have been an issue until much later. IPP may have gone but the fundamental issue is still present.  Should the Code be amended to make this clear?  

As for sentencing, the Divisional Court was critical of the fact that the Parole Board did not consider the judge’s remarks made when Worboys was sentenced in 2009. I haven’t seen these but wonder how much weight they should be given. Parole Board decisions are about future risks and are predicated on the idea that people can change. How relevant are remarks made many years in the past? 

Last month at Liverpool Crown Court, in another dreadful case, the judge sentencing paedophile football coach Barry Bennell described him as “the devil incarnate”. What will the Parole Board- if it still exists- make of that when they consider his case in 2033 or thereabouts?

Finally, there’s the vexed question of the extent the Parole Board should take account of offending behaviour alleged but not proven. In their summary of the case, Matrix Chambers say that “should there be…attempts to deploy before the Parole Board extensive sub-conviction information, then they will likely be met by an argument that this case {ie Worboys} should be distinguished. The material in this case was readily available, the Board had been told of its existence, and it was particularly powerful. Those circumstances are quite unique”. But are they? Justice Secretary David Gauke told Parliament yesterday that in response to the judgement  “all relevant evidence of past offending should be included in the dossiers submitted to the Parole Board, including possibly police evidence, so that it can be robustly tested in each Parole Board hearing”.Presumably this includes “sub-conviction” information. And what about offences of which people have been acquitted?  Reasonable doubt may prevent a conviction but doesn’t always extinguish risk.   

There are no easy answers here but I wonder whether the future lies in handing these complex decisions over to the courts. The abolition of Rule 25 prohibiting information about parole proceedings being made public could well be a game changer. It will have a chilling effect on the Board and could lead to an upsurge in litigation one way and another.  Maybe it’s better to have these release decisions made by judges sooner rather than later.

Is Justice Reinvestment Finally Coming to Town?

For those of us who have spent years  promoting the policy of Justice Reinvestment (JR), today’s Memorandum of Understanding (MoU) between the Ministry of Justice, London Councils and the Mayor is an important moment. It remains to be seen of course whether it leads, as David Gauke told Parliament, to fundamental change in responsibilities for criminal justice and offender management in London. But it certainly promises greater local influence in the capital’s victim and witness services, probation system, electronic monitoring arrangements and justice measures for young adults and women.  It goes some way towards meeting one of the three key elements of JR- that is the “devolution of responsibility for criminal justice to a more local level, where a range of relevant organisations can devise the most appropriate approaches to reducing crime, incorporating the views of people most affected by it”.

But what about the other two prerequisites for JR? These are first, an overarching and explicit policy goal of reducing the numbers of people being prosecuted, convicted and imprisoned; and second a method of financing criminal justice institutions and processes which incentivises the transfer of resources away from prison places, and into community based measures for rehabilitating offenders and preventing crime.  The MoU takes us less far and more tentatively in these directions.

It’s true that it commits to exploring the scope for greater use of police diversion and credible alternatives to custody for women; and to reducing the numbers of young Londoners from being incarcerated in unsafe or distant institutions. But alongside these lukewarm diversionary ambitions sit proposals for a community prison for women and a secure school for children. The MOU talks about reviewing “the use of custody (both police and secure estate) for young people to develop recommendations to support more effective custodial solutions”. I thought this must be a typo (with a missing non-), but am not so sure.

More positively perhaps, the parties commit to working to explore the feasibility and practicality of justice reinvestment “with the aim of reducing the number of low risk offenders sentenced to custody and enabling the sharing of savings to support better community interventions. This will include a particular focus on female offenders and 18-25 year old offenders”.

The document’s glossary defines JR as “a model where investment is given to a local area in response to a reduction in demand on the offender management / criminal justice system”.  It acknowledges the possibility of upfront funding with the ability to claw back payments if demand is not reduced.  The MoU incorrectly states that this has not been tested. The Youth Justice Reinvestment Custody Pathfinder which ran from 2011-2013 did just that. While two of the four pilot sites activated a break clause after a year, the two that stayed the course exceeded their targets for reducing the custodial places required for their young people.  It worked.  

How far this all goes and when will depend on the energy and vision of the London Justice Devolution Board which will drive the agenda forward. The timetable for action is a bit opaque. The first task of the Board “will be to agree a detailed implementation plan to operationalise all of the commitments in this MoU no later than March 2019. The implementation plan will be developed prior to the first London Justice Devolution Board”. 

Back in 2015 I recommended that a JR initiative on women “combining up front money and reward payments should be started”. Rather than yet more time exploring, considering and scoping, the partners should crack on with this at the very least. 

Judging Prisons

Some rare good news about prisons last week. HMP Altcourse – the G4S local prison in Liverpool was found by the Inspectorate, in November last year, to be providing “fundamentally decent treatment and conditions despite facing the same challenges as other local prisons.” The contrast is particularly stark with the city’s Walton jail where two months earlier the inspectors had found an abject failure … to offer a safe, decent and purposeful environment.” There’s likely to be  a good deal to learn about how Altcourse has managed to reduce violence and self-harm year on year, and to bring about a considerable decline in the use of new psychoactive substances by prisoners.  This is certainly the line that G4S are pushing- pleased no doubt that one of their establishments is in the headlines for the right reasons. Staff and managers certainly deserve credit for taking positive initiatives to try to deal with poor behaviour and drug misuse among a demanding population of prisoners.   

But in identifying lessons for broader application in the prison system, it will be important to look closely at the inspectors’ findings at Altcourse and, perhaps as importantly, at what prisoners themselves have had to say about their care, conditions and experience.

Commendably, inspections always include a comprehensive survey of prisoners’ views on a variety of matters, using a large enough sample to produce a reliable representation of the population as a whole. The data from surveys is used to compare what prisoners say about conditions in a particular establishment from one inspection to the next; and how prisoners’ experiences match up in different jails of the same type. The survey questionnaires have recently been revised making these comparisons more difficult than in the past. But setting the 2017 Altcourse results beside those from the last inspection there in 2014, raises some puzzling questions.  

Take safety. Four years ago, 12% of prisoners said they felt unsafe at the time of the inspection. In November it was up to 21%. That’s still a lower level than most local prisons – the proportion was 34% at Walton- but the direction of travel at Altcourse doesn’t look good. In 2014, 10% of prisoners said they’d been hit, kicked or assaulted by other prisoners. In 2017 18% said they had been physically assaulted. The percentage of prisoners saying they’d been assaulted by staff doubled from 3 to 7%. While not all of these trends are statistically significant, there seems a clear finding that more prisoners at Altcourse experienced physical or verbal abuse from other prisoners in 2017 than at other local prisons or at the same prison in 2014. In the light of this, it’s surprising perhaps that Inspectors ranked safety outcomes reasonably good this time – they weren’t sufficiently good four years ago. 

What about drugs? In 2014 a third of prisoners reported that it was easy or very easy to get illegal drugs. Last year 47% of those who had a drug problem – a sub set of the sample - said this was the case. Comparison is tricky but what does seem clear is that between the inspections, the proportion of prisoners reporting that they had developed a problem with illicit drugs since being in the prison more than doubled from 8% to 17%.  That doesn't look like much of an improvement. 

Finally in terms of regime, the number of prisoners who said they spent 10 hours a day outside their cell on weekdays was much higher in 2014 (34%) than last year (16%).  This jars a bit with the inspectors claim that there were sufficient activity places to occupy all men, with most in full-time activities involving nine to 10 hours out of their cells, sometimes more.

There may well be good reasons why the “clear signs of improvement” identified by the inspectors are not always reflected in the views of prisoners. But where there are inconsistencies the challenge must be for the prison to explain them. David Lammy’s mantra “explain or reform” could have value in using data to inform prison improvement as it might in reducing racial disparities in criminal justice. 

There’s a challenge too for the inspectorate to show more their workings more carefully- how they integrate the various sources of information and observation into a set of judgements about an institution.  And what the thresholds are for different ratings on their healthy prison tests. At Altcourse  a quarter of prisoners say  they have been prevented from making a complaint and  fewer than half of those who make a complaint think its dealt with fairly. That may be a better score than other prisons -but is it really a reasonably good outcome?  

The Little Things that Give You Away

I’ve forgotten the term for when people say or do seemingly inconsequential  things which reveal some deeper and more inconvenient truth. I’ve been struck by three in criminal justice this week

Let’s start with the judge who gave an 83 year old man with prostate cancer a 14 month prison sentence for contempt of court arising from a bitter divorce. Of its kind it was a serious offence. When I suggested on twitter that there must be a better alternative than  prison, one lawyer commented that the case involved “numerous, persistent, contumacious breaches of court orders, compounding a determined failure to engage with original proceedings. It can be a real problem in the family court”. Another said “Frankly I'm more sympathetic to most burglars I have met”.  

Anyway it was a bit in the sentencing remarks that struck me. “Nobody” the judge said “wants to see a man of that age going to prison unless it is genuinely necessary.”  Very true. But isn’t there a troubling implication there that it might be okay for younger, fitter men to be locked up in the absence of a genuine necessity. Maybe I’m reading too much into it, but the case strengthens the argument – recently made by Oxford sentencing experts Julian Roberts and Lyndon Harris for a Penal Audit:  “a cross-party examination of the prison estate with a view to determining whether there is any consensus about the proportion of prisoners who could have been sentenced to a community-based sanction”.

The second giveaway, is the Justice Secretary’s evidence to the Justice Committee last week. In the course of questioning about the size the prison population- its not the metric on which he wants to be assessed-,  David Gauke told MPs “clearly, if prison numbers were stable or falling, it would give us scope to deal with some maintenance issues". Because prison numbers didn’t rise as normal in the first two months of the year “it enables us to undertake repairs and so on”. 

Again, that sounds okay until you realise that the minister is in effect admitting that the ability to provide acceptable living conditions requires a fall in prison numbers- or a buffer in the system as he put it. He is not talking about the space to apply a new lick of paint but dealing with squalid cells without emergency call bells, and hundreds of broken windows. As for meeting a key international norm observed by prison systems in many much poorer countries- keeping remand and sentenced prisoners separately- we are nowhere near in England and Wales.    

The third revelation this week came on youth justice. The MOJ told the Justice Committee that the two new pilot secure schools they are building will offer a therapeutic environment where education, healthcare & physical activity are key; this will distinguish secure schools from current youth custody provision & its predecessors. Really? My initial response is that it's insane to set up these new centres at the same time as the local authorities are having to close some of their facilities for disturbed young people in communities throughout the country.

Actually that’s exactly what Tony Blair said 25 years ago when Secure Training Centres were first proposed- though it didn't stop his  government continuing the insanity. Secure Children’s Homes are now seldom mentioned as part of  the youth custodial estate. They should be its cornerstone.

Follow up Questions. What the Justice Committee should ask the Justice Secretary.

Having been greeted on arrival in office by the John Worboys row, new Justice Secretary David Gauke has since kept a low profile. He set out his thoughts on prisons at the RSA this morning, and whether by chance or design will be questioned tomorrow by the Justice Committee. While MPs will focus on his wider departmental responsibilities- the Parole review, court closures, miscarriages of justice and probation failings are likely to come up- Bob Neill and his colleagues have a chance to press Gauke on some of the prison proposals he announced today.

First they will want to know more about his plans to crack down on modern day Harry Grouts- the organised crime bosses who he thinks drive the drug trade inside and its catastrophic consequences. Gauke wants to rethink the categorisation of prisoners so that ring leaders can be “isolated” from their followers. Whether this means a fundamental review of the four tier security classification system or simply tweaks to the criteria for allocation to Category A high security prisons is not clear. Gauke wants categorisation decisions to give greater weight to behaviour in prison- but this would mark a substantial change in policy and practice which needs careful planning.

Second, Gauke wants to change the incentives and earned privileges scheme which Governors tell him isn’t working. This could involve unwinding Chris Grayling’s reforms  to the scheme and strengthening carrots rather than lengthening sticks. In the best part of his speech Gauke talked of giving opportunities for prisoners to earn, through good behaviour,  greater contact with families and release on temporary licence. Why not permanent release, MPs might ask. This was one of Michael Gove’s ideas which disappeared with him . Gauke indicated that it may be up to Governors rather than Whitehall to reshape the privileges and sanctions scheme.   While this might  serve to kick start the stalled governor autonomy project , it could bring  risks of inconsistency and  perceived unfairness on the part of prisoners.

Third, Gauke was clear that he wanted to see prisoner numbers fall but….only as an aspiration  if re-offending falls . He talked about the importance of rehabilitation but as befits the views of a police officer’s son, this has to start with prisoners playing by the rules.  The truth surely is that the grim reality of life in many overcrowded prisons  reinforces rather than challenges criminal behaviour. Further spending cuts, which Gauke would not rule out for prisons, will make things worse - unless there is a serious effort to reduce the prison population.  

Gauke claimed to have persuaded his Cabinet colleagues to join a new inter departmental committee to address the £15 billion cost of  re-offending. While the Justice Committee will wish to probe its terms of reference, MP's could usefully  suggest that its first agenda item should be on finding ways of keeping people out of jail. Gauke's description of the prison system today certainly made a strong case for that.

The Parole Board's Day in Court

A big day for the Parole Board in the High Court and in Parliament . Judges will decide whether there is a case for a judicial review of the Board’s decision to release John Worboys while the Justice Committee holds a one off hearing about the transparency of  Board decisions and involvement of victims in the process. Lets hope that in the hue and cry for something to be done, the courts and MPs will not rush to judgment about the way an important institution should do its work.

Much ire has been focussed on the rule that parole proceedings must not be made public. While the case for increased transparency seems to have been accepted without question, there now comes the difficult matter of deciding what information should be put in the public domain. If the Board starts to provide explanations for its decisions in every case, how much information will they place in the public domain? Where a prisoner will live? Their family circumstances? The local community’s attitude towards the prisoner? This is information the Board considers when reaching a decision but its arguable how much should responsibly be shared. A summary of the reasoning behind each Parole Board decision seems to be favoured but steering a line between formulaic cut and paste generalities and “too much information” - some of it of a highly personal nature-will be hard. A decision will need to be made too about whether the names of the Parole Board members making decisions be published.

The media will no doubt press for access to Parole hearings and the case for that may be hard to resist. But the government will need to consider whether this might adversely impact on the participation of prisoners -and indeed victims -in the process.

It is these kind of unintended consequences that need guarding against. If the Board is forced down the road of publishing its reasons, it will become much more commonplace for those to be challenged. Perhaps that’s a good thing but the consequence may be more conservative decision making and more cost all round.

What must be avoided at all costs is the kind of system that developed in the USA in the 1970’s. Repeated parole rejections for prisoners who were not thought ready to be released And when they were ready, further rejection because they simply hadn’t done enough time. There’s more than a whiff of the latter point in much of the discussion about Worboys.

Hercules or Sisyphus? The Task Facing New Prisons Minister Rory Stewart

There’s been reassurance from the Prisons Minister at the House of Commons Justice Committee. In struggling prisons, the most significant facilities management issues are checked up on in Whitehall every week. Although “heavily operational, it’s “all important to delivering a decent regime, and we are getting to that level of detail to make sure this works”.

This isn’t the back to basics approach announced on Wednesday by new minister Rory Stewart but the evidence given by his predecessor Sam Gyimah back in  November 2016.  Given that the squalid living conditions endured by many prisoners at HMP Liverpool – the subject of the latest  hearing- somehow escaped Mr Gyimah’s detailed attentions, it’s not unreasonable to ask whether Mr Stewart will do any better. Reformers are born optimists so let’s hope so. Good for him for taking responsibility for sorting out the prison crisis and offering  to be judged on the results.  

  

 More and more Inspection reports have revealed the scale of the challenge in creating the “modern, more effective, truly twenty-first century prison system” promised by David Cameron. The reality is that it will take a year to repair or replace the cell windows at Liverpool- and that’s if the Prison’s Action Plan is actually followed, unlike the one produced after a 2015 inspection.

Stewart is right to say that the recommendations made by inspectors should drive reform agendas in establishments. He could have added that Independent Monitoring Boards' and Ombudsman's findings deserve greater attention as well- the former in particular as they produce much more frequent reports.  And he’s thinking about whether the Inspectorate itself should be bolstered so it can follow up on itself on the problems it identifies. But is he right about how to achieve change in prisons?

The local failures at Liverpool appear to cast doubt on the idea of giving Governors more and more autonomy but Stewart is fully signed up to the idea. At least twice he used military analogies in describing the prison service. Governors, like Colonels should be left to run their own show under the watchful gaze of Brigadiers who intervene when things go wrong. It’s not an altogether comfortable comparison. Prison staff are not soldiers fighting an enemy. There are plenty of other institutions- schools, colleges, hospitals, which can provide better models for much of what the prison service should be doing. There is always a risk that security, control and justice get out of kilter in a prison. The Committee heard that bosses were so concerned about security following an escape at Liverpool, they ignored mounting piles of rubbish, vermin infestations and degrading cell conditions.

Stewart was dismissive too of grand concerns about sentencing and other abstract policy questions which he thinks have distracted attention from the day to day problems in prisons.  Here he is wrong. As the Council of Europe 's anti torture watchdog has reported following their 2016 visit to the UK, the implementation of the prison reform programme will be unattainable without concrete steps to significantly reduce the current prison population. The Government’s response, published this week? They do not propose to set arbitrary targets for reducing the prison population, but to achieve it via a combination of early intervention upstream and on reducing reoffending after release for those who are sentenced to immediate custody.

Disappointing though that may be, even these modest strategies require a genuine policy commitment from housing, healthcare, education, business and local government. Stewart‘s job is to negotiate that as well as fixing broken windows. Unless he and colleagues find some way to cut prison numbers his task will not be that of Hercules but of Sisyphus.