A Tale of Two Cities

Today’s inspection report on HMP Leicester gave a hint that prisons might perhaps be turning a corner. Outcomes on all four of the Inspectorate’s healthy prison tests have improved since 2015, and while safety is still not sufficiently good, respect, purposeful activity and resettlement are now all reasonable.  Could this show that belated and inadequate as it may be, recent investment in prison staff is beginning to have a positive effect?

Any optimism about the system as a whole was dashed a few hours after the Leicester report was published when Chief Prison Inspector Peter Clarke decided that the failures to tackle safety issues at HMP Exeter were serious enough to put the Justice Secretary publicly on notice to fix them. We’ve become all too used to the rocketing rates of violence and self-harm, easy availability of drugs and poor living conditions in local prisons. But what’s worrying in the letter Clarke published today was that additional staff had not (yet at any rate) started to improve the dire situation he reported on in 2016. 

Clarke was shocked by the failure of prison officers to answer cell call bells: “Given that the prison is now much better staffed, this was inexcusable.  Inspectors saw bells going unanswered even when staff were doing nothing else.” He is aggrieved too at how little progress had been made on his recommendations from last time- compared to Leicester where inspection and Ombudsman findings seem have driven the improvement agenda.

So what are the lessons?  First, ministers’ words about reducing short- term prison sentences need to be turned into action. We don’t yet know how many prisoners at Exeter were serving short sentences when the inspectors visited last week but in 2016 18% of prisoners were serving 6 months or less and a further 5% between 6 months and a year. Diverting at least some of these to community-based supervision could see disproportionate benefit in grossly overcrowded local prisons- if the places are not back filled by long termers.

Second, ministers and the prison service need to get ahead of the game on prison conditions. I’ve been impressed by Prisons Minister Rory Stewart so far but not so much with him telling the Guardian that he was “grateful to the chief inspector for identifying the urgent attention required at Exeter.” After the promises he made to the Justice Committee about Liverpool four months ago and the first Urgent Notification at Nottingham, why has he himself not taken steps to identify what’s needed and ensure remedial action is taken? After all he has started a "back to basics" campaign , prioritising making prisons "clean and decent, with a proper broken windows policy".

Presumably he’ll be on a train to the west country, but he well knows micro managing isn’t a sustainable way of fixing this.  But given his commitment to sorting out the basics, he should make it his business to know- or at least ensure that Prison Service chiefs know-  the extent of squalid cells, blocked lavatories, broken glass and furniture.  It would be a start.  

Prison Reform: See it, Say it, Sorted?

Is the Government finally grasping the nettle on Prison Reform?  If dynamic duo may not quite be the right description for Justice Secretary David Gauke and Prison Minister Rory Stewart, they are certainly adopting a bolder approach to criminal justice than their predecessors. In particular they are now openly recognising the desirability of getting prison numbers down. Their employment strategy launched this week included proposals for much more in the way of temporary release for prisoners serving sentences.  Now Gauke’s told The Times he wants a concerted effort to drastically reduce the number of people who are being locked up every year.

Having seen the parlous state of the prisons and the ever more yawning gap between policy aspiration and day to day reality on the wings, the new ministerial team are certainly saying many of the right things. The question now is can they sort them?

When I read that Gauke wants to start a debate about what punishment means, I was reminded of the work of the Rethinking Crime and Punishment (RCP), a programme I directed for the Esmee Fairbairn Foundation in the 2000’s. The first recommendation in our 2004 report was that “political leadership should be exercised to emphasise the goal of reducing the prison population while promoting the value of alternatives to prison”.  Gauke’s off to a promising start on that but how about the other ideas which emerged from the work we funded.  We wanted to see business coordinators in every prison to maintain positive relationships with local employers; and more and better arts activity for prisoners. On both Gauke is on the same page. We argued for new approaches outside prison for women offenders and those with mental health problems; on this we’ll have to wait and see.

On alternatives to prison more broadly we wanted to see a major public education campaign about community penalties, and greater involvement of sentencers and the public in their implementation. We piloted these ideas in the Thames Valley , enabling judges and magistrates to visit and discuss community-based programmes and members of the public to propose unpaid work assignments.  As RCP ended, we published a costed manifesto showing alternative uses for the £2.3 billion which had been allocated on new prison places. It would pay instead for higher quality community supervision, wider availability of restorative justice, women’s centres and link worker schemes for petty persistent offenders with mental health problems. Structured dialogue arrangements would keep judges and magistrates informed about what was available and how it was working.

The plan was politely received but no more. But it’s that kind of approach and investment that’s now needed, utilising some of the £1 billon in the MoJ’s new for old prison coffers. Along with encouragement for the Sentencing Council to do more to curb unnecessary imprisonment and development of models  for  more localised funding arrangements, there’ the chance not just of the tide turning,  but of a sea change.  

Youth Justice: Future Directions

How should courts decide what to do with children in trouble? Sir James Munby the President of the Family Division told a seminar held by the National Association for Youth Justice (NAYJ) that he has some ideas. He’d like to see a one stop shop which would make decisions currently determined in the separate jurisdictions of the youth courts, immigration tribunals and family courts.  The new court would adopt an approach which grappled with the wide range of personal, family and social difficulties which lie behind delinquency and other childhood problems.

Such a problem-solving approach has been shown to work well with in the Family Drug and Alcohol court where evaluation has shown that for every pound spent £2.30 is saved. He’d also like courts given powers to require authorities to provide the services they judge are needed for individual children.  Munby recognised the challenge this posed to existing doctrine on the separation of powers but felt these would be outweighed by real world benefits.  Making the kind of stand he did in the Re X case- warning that society would have blood on its hands unless a secure clinical placement was found for a highly distressed young woman – was not a sustainable way to run the system.

A new court would need guiding principles combining the family court’s emphasis on the best interests of the child with the wider requirements of criminal justice. It could do worse than adopt those developed by Anna- Christina Jones in the different context of her action research with young people in Manchester. Meaningful participation is key along with an approach which aims to understand why children have behaved in the way they have and acknowledges their often limited chances. Working with children to help them solve their problems, find better options for the future and develop their ambitions – while as far as possible avoiding threats and sanctions -are surely the right way forward for youth justice workers. Should they not help guide Munby’s new court too? 

A reformed system could not work without a reliable range of services available locally to meet the needs of young people. Shadow Policing Minister Louise Haigh MP argued for much greater expansion of mental health services for both adults and children and for the latter a professional approach which recognises adverse childhood experiences including trauma. Labour is still working up its policy but their “children first, offenders second” philosophy seems a welcome distance from Tony Blair and Jack Straw's “No More Excuses”. For all age groups, we can expect much greater emphasis on diversion from the courts combined with evidence-based interventions.

A children first approach has implications across the system.  Joanne Cecil pointed to some rays of light in the culture of the Crown Court where children no longer always sit in a dock, and increasingly benefit from specially trained advocates. The new Chief Justice has made constructive judgements recognising the developing maturity of young people, even those above the age of 18.  

How to make it happen? Munby would exclude serious violent offences from his new scheme despite the evidence that many of the young people involved have themselves been victims of abuse and neglect and would benefit from a therapeutic approach. The reason? To make it more palatable. Public attitudes look like a huge roadblock although as Penelope Gibbs has shown, problem solving resonates well.

Money is tight of course. Shockingly Munby admitted that despite his efforts children seldom attend family proceedings with various central and local agencies bickering about who should meet the transport costs. If those modest sums can’t be agreed it seems fanciful to imagine a system in which courts can order more costly interventions to be provided.   

Maybe the answer lies in more local devolution. Labour are looking to devolve more- including Probation- to the PCC’s and mayors – as well as cutting the number of police forces.   Is the future direction of youth justice a local one?

Youth Custody - On the Mend?

Judged last year to be “on the edge of coping with the young people it was charged with holding,” the youth custodial estate was placed under new management. Whether as a result or not,  Inspection reports on two of the most challenging institutions suggest that the crisis that has engulfed detention of young people may be easing.

Chief Inspector of Prisons Peter Clarke found that “overall, there had been excellent progress made at Feltham since the last inspection” with the west London Young Offender Institution achieving dramatic reductions in violence and improvements in child protection, safeguarding and governance of the use of force.  Medway Secure Training Centre was also judged by OFSTED, HMIP and the Care Quality Commission to have “improved in all areas since the last inspection”.

In both cases, progress has been from a low base and clearly there is very much more to do. Medway is still rated as requiring improvement and while Feltham is now judged reasonably good on safety, respect and resettlement, it’s still not sufficiently good on purposeful activity.  Clarke is of course right to say that “the progress could easily prove to be fragile if investment falls away or leadership loses its focus.” After all, Medway was judged good with outstanding features in September 2014, less than 18 months before Panorama revealed “targeted bullying of vulnerable boys by a small number of staff, conditioning of new staff and a larger group who must have been aware of unacceptable practice by colleagues. 

One of the most valuable elements of all inspection reports are the surveys which ask a sample of prisoners about their experiences and attitudes. The results enable comparison both with those of prisoners at the last inspection and at similar establishments.  It’s surprising perhaps, that despite its progress, boys at Feltham rate a worse experience in 17 areas and a better one in 9. Not all the areas should be given equal weight of course. But they merit a pause for thought.

Safety is fundamental and therefore it's highly  encouraging that fewer than one in ten boys felt unsafe this time compared to one in five last year. It's important too that many fewer boys think shouting through the windows is a problem. But the “dramatic” improvement in safety has left the numbers of boys who say they’ve been victimised by staff or young people at roughly the same level as before- just under a quarter.

In accounting for improvements, the inspectors are probably right to point to a better privileges scheme which has placed more than a third of boys on the top level compared to 12% last time- and which, contrary to the BBC’s frivolous reporting amounts to more than handing out sweets.   

But it's troubling that fewer boys can shower or make a phone call every day, find it easy to see the nurse, make an application or have a visit which starts on time. And while more have a remand, training or sentence plan fewer have a caseworker.  These are all areas which managers need to address in the coming year alongside those where previous findings have been ignored.

Most notable of these is the recommendation that under 18s should not be segregated in the Unit in the prison's young adult side. Clarke is right that progress depends on his recommendations being implemented. By my calculation, of the 80 made last time, 32 were fully achieved, 18 partially achieved and 30 not achieved. 

Such a calculation is not so easy to do in the case of Medway STC where the compliance with recommendations is not logged. Last time for example, inspectors said staff should be aware of young people with health conditions so modified holds can be used if physical restraint is needed. Now, "handling plans" are in place, but some staff did not know why, "undermining its purpose in ensuring that only safe holds are used for certain children". This recommendation has been partially achieved at best. But there is no summary of compliance.

The Medway report shows continuing wider issues with what is the widespread use of physical restraint of young people. During some episodes of physical restraint, “children felt pain even though techniques intended to cause pain were not used". Injury warning signs were identified eight times in the previous 6 months, most because children said that they could not breathe.

Just as troubling is the fact that 71% of children said in the survey that  they had been restrained while at the Centre, though records showed it was about half.  Indeed, the survey responses give a number of causes for concern. 29% of children said they'd felt threatened or intimidated by staff (vs 6% last time). More also experienced insulting remarks and physical abuse by staff. While, the changes may not be statistically significant, they look hard to square with the inspection’s conclusion that the STC has got better in all areas.  

More Council of Despair ?

All’s not well at the Sentencing Council. Chairman Lord Justice Treacy has had to remind judges and magistrates to use suspended prison sentences only in the most serious cases which would otherwise result in custody – and not simply as a way of giving lower level community penalties more teeth.

Treacy – and no doubt the Ministry of Justice- fear that if courts continue to ignore last year’s guideline on the imposition of custody but do pay heed to a forthcoming one on breach, the result will be “a high volume of activated suspended sentences”.  That means more pressure on the beleaguered prison system which has reported record levels of violence and self-harm in 2017.

More than one in ten suspended sentences are terminated early for a failure to comply with requirements and 18% for a further offence. While it’s not known how many of these cases currently go to jail, the new guideline is expected to urge activation of the custodial sentence unless it would be unjust in all the circumstances. The draft of the breach guideline tells courts to remember “that the court imposing the original sentence determined that a custodial sentence was appropriate in the original case”.  The problem is that in many cases they haven’t and it wasn’t.

The Council and Probation service have cooked up a plan to stop suspended sentences being recommended in Pre-Sentence Reports.(PSRs)  They’re proposed in about a third of PSRs and courts  accept two thirds of the proposals. What will happen now?  While the hope is that most suspended sentences will be replaced by community orders, there’s a risk that some additional custody may be imposed or even proposed.    

Such unintended consequences would be nothing new for the Council. An independent review of its work by eminent criminologist Sir Anthony Bottoms has confirmed that two major guidelines – on assaults and burglary - have led to unexpected increases in the severity of sentencing,  "which is bound to create anxiety among civil liberties groups”. The review is also critical of the Council’s failure, when drafting guidelines, to consider the relative cost and effectiveness of prison and other sentences in reducing re-offending.

The review makes largely technical recommendations about how the Council should both undertake and communicate its work in the future. There are good ideas here - a greater emphasis on personal mitigation in the guidelines, and a requirement that courts ask themselves "is custody unavoidable?" because sentencers may forget to do so. 

Not surprisingly the Council has rejected the idea of opening itself up to a television documentary but it has promised to foster better links with academics, review research on the effectiveness of sentencing and engage more with stakeholders other than sentencers. An external agency will be appointed to examine issues of public confidence in sentencing. 

Bottoms echoes several of the findings in the report I wrote for Transform Justice in 2016 -The Sentencing Council for England and Wales- Brake or Accelerator on the Use of Prison. He argues that a preoccupation with the prison population has blunted the impact of the Transform Justice report because “the current reality is that it would be politically very difficult for the Council, even if it wished to do so, to argue for a step change in the use of prison.” That may be true but does not excuse the fact that a body which could have curbed the unnecessary use of prison has largely failed to do so. 

Actually, noises coming from the Ministry of Justice are more promising than for some time. Prisons minister Rory Stewart told Parliament this week that he will be looking at what more the Government  can do to emphasise ​that a custodial sentence in the short term should be a final resort. He accepted there is a lot to learn from Scotland which has introduced a presumption against short prison sentences. Maybe the tide is finally turning?

Deja Vu : Can the serious violence strategy learn from the past?

Back in 2002, when I was member of the Youth Justice Board, then Chair Lord Warner opened one of our meetings by saying he expected we were all considering resigning. The Prime Minister had called for young offenders to be taken – it might have been swept - off the streets in order to tackle an upsurge in mobile phone robberies. Our advice hadn’t been sought and Tony Blair’s approach didn’t sit well with our efforts to reduce the use of custody for young people. Warner persuaded us not to resign- every crisis is an opportunity was the line I think. We were vindicated in part by the fact that the Street Crime Initiative- developed in a series of COBRA meetings normally reserved for national emergencies – turned out to include prevention and treatment measures alongside enforcement. But at the outset and at its heart, was tough on crime rather than on the causes. Even Lord Woolf, the normally liberal Chief Justice was moved to issue a draconian guideline judgement on street robbery in its wake.   

Perhaps my experience back then, accounts for an initially positive reaction on my part to Amber Rudd’s Serious Violence Strategy. Much of the analysis of the problem which has come into tragic focus in recent weeks is basically sound. The Home Office may be a graveyard of liberal thinking, but this Home Secretary agrees with academics that “big shifts in crime trends tend to be driven by factors outside of the police’s control – like drug trends and markets, changes in housing and vehicle security.” Her approach to serious violence “is not solely focused on law enforcement, very important as that is, but depends on partnerships across a number of sectors such as education, health, social services, housing, youth services, and victim services.” So far so good.

The strategy recognises that key areas for reducing violence include “socio-economic improvements, strengthening ties to family, school and non-violent norms.” And for young people, early interventions are effective in reducing violent behaviour and “punitive activity is less effective than preventative support”. In reducing re-offending for all ages “Interventions focused on the establishment of cognitive or character-based skills and/or non-violent norms seem to be more effective than punitive interventions.” The strategy confirms too that “changes in the level of stop and search have only minimal effects – at best – on trends in violent crime, even when measured at the local level”. All this seems sensible and consistent with evidence. Ms Rudd even plans to hold an International Violent Crime Symposium to hear from international experts (yes experts) if she’s on the right track.

Where the strategy stops short of course is in putting in place the measures needed to meet the problems it identifies.

Take drugs. The strategy points out that drugs can drive up serious violence “indirectly, either by fuelling robberies to service drug dependence, or through violent competition between drug sellers. Grievances in illicit drug markets cannot be settled through legal channels, so participants may settle them violently. This can lead to escalation as dealers seek to portray themselves as excessively violent, and carry weapons, so as not to be cheated in the market.”  Is there the slightest hint of finding different ways of regulating at least some drugs so that at least some disputes might be more peacefully resolved? No.

As for the much praised early intervention, a series of small scale targeted funding schemes hardly begin to compensate for the under resourcing of mainstream provision – whether mental health treatment or youth clubs, inflicted in the name of austerity. The strategy promotes diversion of various kinds but to what? The small beer offered here will continue to leave thousands of young people at risk of becoming victims or perpetrators of violence.

Police numbers are of course the strategy’s missing link. Like it or not the Street Crime Initiative did appear to show that “increased police resources do in fact lead to lower crime”. This strategy extols the virtues of hot spot policing but shifting onto PCCs responsibility for providing officers to do it, is simply bad faith.

On courts, probation and prisons, the strategy only goes so far.  We can count ourselves fortunate that tougher sentencing for once takes a back seat. Given the state of the prison system, presumably the MoJ put their foot down about that. It’s good that violence in prison merits a place in the strategy and among the alphabet soup of initiatives to reduce it, the idea of trauma informed approaches looks a particularly good one.

But given that much serious violence is carried out by persistent offenders, why no mention of the cross-government group of senior Ministers, announced last month, which will work across all relevant departments to reduce re-offending. Presumably because it’s a MOJ rather than Home Office initiative. The latter will drive this strategy through a new Serious Violence Taskforce. But there will surely be benefits in David Gauke’s approach of targeting “prisoners and ex-offenders with the support they need to find a job, a home, to get help with debt, or to get treatment for a drug addiction or, a mental health issue”. Proper resettlement should be more central to what’s being proposed.

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.