Sentencing Guideline on Mental Health- Welcome Clarity or Missed Opportunity?

Two months ago, the Lord Chief Justice was asked in a Justice Committee hearing whether the current crisis provides any opportunity to reduce the prison population through greater use of alternative sentences for vulnerable groups, including people with mental health problems. Lord Burnett responded by telling MPs that a lot of work had been going on in connection with the sentencing of the mentally ill with the Sentencing Council’s development of a guideline on sentencing defendants with “mental problems” a project “close to my heart since the day I became Lord Chief Justice”.  

The Council’s guideline on Sentencing offenders with mental disorders, developmental disorders, or neurological impairments was published this week, coming into force in October. It has been widely welcomed as providing greater clarity and transparency for courts - but what difference is it likely to make to the extent to which people with mental health problems go to prison and if they do to the length of the terms they serve?

The guideline itself says that the fact that an offender has an impairment or disorder should always be considered by the court -but will not necessarily have an impact on sentencing. Disappointingly, the resource assessment drawn up alongside the guidelines suggests that the Council does not expect that there will be any impact on sentencing severity; on the use of lower culpability factors and mitigating factors relating to mental health; or the imposition of community sentence requirements. When, during the development of the guideline, sentencers were given scenarios to sentence under current practice and then under the draft guideline, researchers found no clear evidence of any changes in sentencing practice.

This is a huge missed opportunity to encourage greater use of alternatives to prison for this group of offenders.  The guideline states that courts may consider a Mental Health Treatment Requirement (MHTR) attached to a Community Order as an alternative to a short or moderate custodial sentence, and that they may also wish to consider a drug rehabilitation requirement (DRR) and/or an alcohol treatment requirement (ATR) in appropriate cases.  Given their duty to take account of the relative effectiveness of different sentences in preventing re-offending, the Council should have gone a lot further than that in directing sentencers towards such measures.   

Had the guideline given a greater impetus to these community- based requirements, the Council would have been duty bound to make a proper assessment of the resources required to implement them. As things stand the Council says the guideline is not expected to change the numbers of MHTRs, DRRs or ATRs.  Why not? Because the use of these requirements is constrained by their availability in the community. It’s a Catch 22 from which the Council could have helped to engineer an escape.

That it did not do so is characteristic of the narrow and cautious approach they have brought to almost all of the guidelines they have produced. Their intention, they say “is not directly to cause changes to sentencing practice".  It should be.  The Council says it may be that the guideline is part of a wider focus on offenders’ mental health, which may gradually change the way that mental health is treated in the criminal justice system. But don’t hold your breath.

Children in Custody- History repeats itself first as tragedy then as farce

In March 1993, then Home Secretary Kenneth Clarke announced plans for new Secure Training Centres (STC) to deal with the “comparatively small group of very persistent juvenile offenders whose repeated offending makes them a menace to the community”. The Centres aimed to provide “high standards of care and discipline and opportunities for the juveniles in their care to develop as individuals”. Regimes were intended to “embrace education and training provided in ways that tackle the individual's offending behaviour”.

More than five years passed before the first trainees, one boy and one girl, arrived at the newly built Medway STC in April 1998, with a steady increase into the summer. Within three months, police in full riot gear accompanied by dogs were called to quell a riot in which a dozen or so trainees armed with makeshift weapons caused injuries to staff and damage to the building.  Within six months 30% of the original staff had left.  

The inauspicious start ushered what can only be described as a chequered history for the STCs. Clarke’s promise that “secure training orders will be different from anything that has ever been provided before” turned out to be hubristic nonsense. Approved schools, Detention Centres, Borstals, Youth Treatment Centres and Young Offender Institutions had all started with high hopes and proved more or less expensive failures.

Fast forward 18 years to December 2016 to find then Justice Secretary Liz Truss telling MPs that the government will “comprehensively transform youth custody by developing two new secure schools” following recommendations made in Charlie Taylor’s Youth Justice Review.  Two quickly became one but last summer the Oasis Charitable Trust were selected to run the secure school – where else but Medway. The original plan was to open in September this year; but last November a delay until 2021 was confirmed.  

This week Prisons Minister Lucy Frazer informed the Justice Committee that the government expects to open the Medway secure school in 2022- which means the beginning of the school year- almost six years after Taylor’s review.

The reason for the delay is ostensibly “to work through some significant and complex legal and regulatory issues.” These arose after Frances Crook at the Howard League questioned whether running a secure school falls within the charitable purposes listed in the Charities Act 2011.The Charity Commission does not think that the operation of a secure school can be exclusively charitable.

This may be one reason why - unless I have missed it- the government has not yet published the application submitted by Oasis Charitable Trust . They aimed to do so by September 2019 in keeping with their commitment to be as transparent as possible.  

It’s also the case that the Medway site, which closed as an STC in the spring, has been pressed into service to accommodate up to 70 adult male prisoners during the current pandemic.  Justice Secretary Robert Buckland told the Justice Committee this week that 32 of the single cells are currently in use. The emergency use of Medway as an annexe to HMP Rochester may have delayed the 5 million pounds worth of planned refurbishment works designed to make the site suitable for the secure school.

In the light of all this, Ms Frazer’s claim that the government is dedicated to the secure schools programme looks somewhat flaky. It is entirely possible that it will go the same way as the Coalition’s absurd plan for a large Secure College – nowhere.

Last week’s reports on pain inducing restraint and separation in custodial establishments left no doubt about the need for reform in youth custody.  They were but the latest illustration of what amounts to  a huge strategic failure over 25 years.

A sensible approach would have been to build more secure childrens homes which offer by far the best level of care in the estate and phase out prison custody which provides the worst. Secure Training Centres – despite the rhetoric surrounding their introduction - have proved a costly distraction and there is a risk that the secure school – if it ever happens -may prove the same.  

Prison Sentencing During Covid-19. Why the Courts Must Accept the Realities of the Situation

While the prison population may gradually be falling - this week dipping under 80,000 for the first time since 2006- it needs a much more substantial reduction if prisons are to start to exit their lockdown and put in place more humane but Covid secure regimes. 

Like any residential institution, prisons are high-risk environments for the spread of infectious disease. They are full of people in already poor health. Doing as much as possible to keep people out of such environments is a sensible public health policy in an emergency like this. 

There is a more principled reason for putting – and keeping -fewer people behind bars. This relates to those exceptionally harsh conditions which prisoners now face as a result of the measures deemed necessary to safeguard their health. Put bluntly, since imprisonment has become a more onerous punishment than it was, so its use should be reserved for more serious offences than previously; and the length of custodial sentences which are imposed should be reduced to reflect the greater pain that they inflict on those who serve them in the current conditions.

The Lord Chief Justice ruled in April that confinement in cells for 23 hours a day, lack of visits and anxiety about the risk of the transmission of the virus mean “the impact of a custodial sentence is likely to be heavier during the current emergency than it would otherwise be”.  

He pointed to the long-standing principle of taking such an impact into account in sentencing practice, both in deciding whether an immediate custodial sentence is called for at all and if so for how long.  Last week, Lord Burnett told MPs that he had absolutely no doubt that from the beginning judges have been alive to the issue.  “I am confident” he said, “that it is a basic principle of sentencing practice of which all sentencers will be well aware”.  But are they?

There doesn’t seem to be very much at all about this basic principle in the Guidelines produced by the Sentencing Council.  The Guidelines do make clear that:

* the impact of punishment is likely to be felt more heavily by a child or young person in  comparison to an adult
* offenders over 18 who are immature and who have a mental disorder or learning disability may find it particularly difficult to cope with custody and 
* courts can take account of the greater impact which imprisonment will have on an offender with a physical disability or a serious medical condition- though worryingly, the Overarching Principles on sentencing say that “the court must impose a sentence that properly meets the aims of sentencing even if it will carry the clear prospect that the offender will die in custody”.   

It’s also the case that for offenders on the cusp of custody, imprisonment should not be imposed where there would be a disproportionate impact on their dependants. One of the factors indicating that it may be appropriate to suspend a custodial sentence is if immediate custody will result in significant harmful impact upon others. Significant harmful impact on prisoners themselves is not however a factor.   

Nor do "current prison conditions" yet appear on that list of factors, notwithstanding the Chief Justice making it clear that they should be taken into account in deciding whether to suspend a sentence.

Lord Burnett's judgment confirmed a long line of Court of Appeal cases going back 40 years which encourage sentencers to take account of adverse conditions- overcrowding in particular- in deciding whether to lock someone up and if so for how long.  In 2007 Lord Phillips was explicit that the “prison regime is likely to be more punitive as a result of prison overcrowding”, which also hinders or prevents “the valuable work of rehabilitation that a prison should normally provide”. 

In spite of these cases, Guidelines do not point courts clearly enough towards considering how a prisoner will actually experience the penalty they impose, whether it is impoverished due to overcrowding or other difficulties.

Indeed, many believe that “courts ….properly sentence blind to the size of the prison estate”.   But as Lord Woolf put it, while the government not the courts are responsible for providing prison places, “the courts must accept the realities of the situation”.  That situation is that severe hardships resulting from the crisis apply now and for the foreseeable future to everyone in prison.

The logic of today's "current realities" dictate both that the custody threshold is moved upwards and sentencing tariffs moved downwards.   The Sentencing Council, one of the few criminal justice organisations to remain largely silent during the COVID crisis needs to take action.

The Council has amended its guideline on common assault to tell courts to treat as an aggravating factor “threats or activity relating to transmission of Covid-19”. But it has so far done nothing to reflect the more punitive nature of imprisonment as a response to this or any other offence.  

Reducing the numbers in prison. Opening the back door hasn’t worked – it’s time to shut the front.

While thankfully the spread of Coronavirus in prisons is so far less than many have feared, the success has come at a high price. Cellular confinement, previously a disciplinary punishment, has become the order of the day. There are no social visits and opportunities for education, training and work are much reduced. 

Such has been the changing impact of imprisonment during the emergency that the Chief Inspector of Prisons describes children being allowed out of their cells for as little as 40 minutes a day in a "generally positive" report . In three local prisons, he found that to minimise spread of Covid19, prisoners were being asked to endure "extreme restrictions", with the vast majority locked up for nearly the whole day.

It’s becoming clear across the board that only a substantial reduction in the number of prisoners will enable the social distancing required to allow something approaching normal service – notwithstanding its limitations - to be resumed.  And social distancing may be needed for many months to come.   

Prison numbers have come down- 3% since January – paltry compared to a fall of 70% in the (albeit much smaller) population in Immigration Removal Centres. But without more action, as lockdown is eased and activity in the Courts resumes, demand for jail places could increase. The criminal justice system needs to stay alert to this. 

Fewer than a hundred prisoners have so far been freed on Temporary Release, predictably given the byzantine regulations governing its use. 

If the exit hasn’t been opened very wide to allow people out of prison, perhaps it’s time to push the front door further closed to block their entry.    

The Chief Justice has indicated that harsher jail conditions means courts should send fewer people to prison and reduce the time they spend there. Hopefully his judgment has been brought to the attention of sentencers; in any event the Sentencing Council need to issue an addendum to their Guideline on the imposition of community and custodial sentences.  

At the very least, “current conditions in prisons” need to be added to the list of factors for courts to weigh up in considering whether it is possible to suspend a prison term.  Better would be a strong – but rebuttable -presumption in favour of suspension of all prison sentences of two years or less. 

Even a modest shift here would make a difference. Last year, of the 76,000 sentences of immediate custody imposed by courts, 58,000 were for two years or under – and therefore capable of being suspended.

The Council should also give guidance on how the heavier impact of a prison sentence should affect sentence length. Why not a discount on the going rate for most offences? Some might object to such an arithmetic approach but it’s the one taken to calculating discounts for early guilty pleas. Without it, nothing much may result.

Prisoners already serving sentences also deserve compensation for the heavier conditions– perhaps an equivalent discount- though that would require legislation. Three years ago, in Romania, following repeated violations of the European Convention on Human Rights, a system was introduced in which six days were taken off a prison sentence for every 30 days served under improper prison conditions. Could something similar be worked up In England and Wales? 

Courts also need to be restrained from remanding so many defendants in custody during the crisis. Some of the spare electronic tags purchased for early release cases could be used to monitor more people on conditional bail. The Sentencing Council has no mandate here, but one way or another, courts will need to be firmly steered away from the use of unnecessary pre-trial detention.

Perhaps this is something that the Justice Committee could put to the Lord Chief Justice when they question him next week?    

Criminal Justice – The Need for a New Normal

Covid 19 and the requirements of social distancing are obviously placing great pressure on the institutions which deal with wrongdoing- police, prosecutors, courts, prison and probation services. They have all had to adapt not only their ways of working but their priorities. If it’s true that in the midst of every crisis, lies great opportunity, should some at least of these adaptations form part of a new normal, once the pandemic is over?

For example, the CPS has told prosecutors that they should be proactive in discharging their ongoing duty to review cases -in particular whether the public interest lies in continuing to take a case to court. Guidance has reminded prosecutors that where appropriate they may decide to discontinue proceedings or offer an out of court disposal instead. With more than four out of five offenders sentenced in courts last year receiving a fine or discharge -sanctions which do nothing to rehabilitate them or compensate victims- there’s scope in the future for the police and prosecutors to issue more in the way of cautions, community resolutions and warnings, whose use has been falling in recent years. Focussing the work of the courts on the most serious and persistent criminality will make sense when resources are tight.

On sentencing, the Lord Chief Justice has this week ruled that “the current conditions in prisons represent a factor which can properly be taken into account in deciding whether to suspend a sentence. Judges and magistrates can therefore, and in our judgment should, keep in mind that the impact of a custodial sentence at the moment is likely to be greater during the current emergency than it would otherwise be.” This echoes a 2007 ruling from one of his predecessors Lord Phillips that “when considering the length of a custodial sentence, the court should properly bear in mind that the prison regime is likely to be more punitive as a result of prison overcrowding.” Let’s hope that the current ruling has more of an effect than did the earlier one. 

  

There have been restricted prison regimes across the board since 24 March -no education or training, social visits, access to gyms, religious or general association and very limited employment. So courts will not need to investigate whether and to what extent adverse conditions exist in the particular establishment to which a particular offender might be sent -a factor which perhaps made Phillips’ ruling difficult to apply in practice. 

But once the Coronavirus crisis is over, the prison crisis won’t be. The principle of courts taking greater account of the real-world impact of punishments when sentencing should be one to stay in the long term.   

Finally, on prisons, despite the very impoverished experience facing prisoners, one silver lining of the Covid cloud is a growing recognition of the need to reduce overcrowding in general and in particular the use of single cells for more than one prisoner. On Friday, the prison system had a usable operational capacity of 83,872, 1633 lower than the week before. While this may seem odd given that the Prison Service is creating more cells and taking over Medway Secure Training Centre, the reduction probably reflects less doubling up in single cells. 

The Prison service has started to redesignate its measure of capacity on the basis that single cells should hold one prisoner. While this may seem a technical - and obvious- point, it holds the prospect of a more honest approach to the assessment of overcrowding- the cancer as Lord Woolf once said,  that eats at the ability of the prison service to achieve its object of protecting the public from crime.   

At the end of March, the prison service reported that it had a good, decent standard of accommodation for just under 76,000 prisoners. An Institute for Government report this week estimated that the prison population could drop to 70,000 by September 2020 if the crisis lasts for six months.  The report estimates that it could return to 88,000 by March 2024. 

We need to find a way of avoiding that becoming the new normal.                             

Well Done or Too Rare? Why MPs need to ask about the Early Release of Prisoners

Questions in Parliament on Monday for Justice Secretary Robert Buckland and his ministerial team. No doubt MPs will want to know how the various elements of the justice system are adapting to the demands of lockdown, but it is the prisons about which they should be most concerned. In particular, they should ask why plans to reduce the population -considered necessary to minimise infection risks for prisoners and staff - are progressing so slowly.   

The overview of the eligibility criteria for the End of Custody Temporary Release scheme, published on Friday, offers some clues. The process looks complicated, with prisoners having to meet four sets of conditions if they are to be released on an electronic tag up to two months before their normal release date.

There are the legal parameters set out in the Statutory Instrument- basically a prisoner must be serving a standard determinate sentence with an automatic release point or be in custody for fine default or contempt. There are criteria set out in Directions from the Justice Secretary. So far he has issued two of these- on 7 and 24 April setting out exclusions and requirements relating to the offence committed by the prisoner, the length of sentence and the risks they pose.  A list of prisoners eligible for release based on the legal and Direction Criteria is being drawn up nationally.

Prisoners on the list must then be assessed locally to see if they fit so called Policy criteria- do they have suitable accommodation? Can their healthcare, including any Covid-19 considerations, be safely managed post-release? In bold type, it’s stated that “Fundamentally, they must not present a level of risk of harm, reoffending, failure to return or other significant challenge that cannot reasonably be managed in the community.”

There is a very strong presumption that prisoners who do not meet these policy conditions should not be released “unless there are exceptional circumstances to depart from this”.  The local assessment process includes some additional issues - previous failures on ROTL and behaviour such that the Governor considers it unlikely that the individual can be trusted to complete the licence.  Final decisions on release are not however made by the Governor but centrally on behalf of the Secretary of State to maintain consistency in decision-making.

Looked at one by one, many of these considerations look reasonable. For any Temporary Release provisions , the Secretary of State must be satisfied that there would not be an unacceptable risk of a prisoner committing offences or failing to comply with conditions whilst released; and the arrangements should not undermine public confidence in the administration of justice.

But taken as a whole, the process they give rise to looks cumbersome, demanding and unrealistic. How, for example, can Governors ensure that a release would not put the offender or others at any health or Covid-19 risks?  Surely the lockdown is in place precisely because we are all subject to such risks.

There are some apparent inconsistencies too.  The 7 April Direction requires prisoners to be assessed as having a low or medium Risk of Serious Harm level- but the overview guidance says that the process aims to ensure that “only …the appropriately low-risk are released”.  

Puzzling too is why despite a presumption that those who meet the statutory and policy criteria should be released, “not everyone who meets the eligibility criteria has to be or will be released”. The government says that releases may be targeted at specific prisons to relieve particular pressures in relation to Covid19. It’s true that overcrowding is concentrated in local prisons. But with the system 6,000 above its uncrowded capacity, it’s hard to see why anyone who meets the rigorous criteria for being allowed out should not go home- subject to the stringent conditions spelled out in the guidance.  This would give much needed breathing space to prisons of all kinds which are trying to manage with 80% of their staff at work.

Moreover, the most recent policy framework for Release on Temporary Licence makes much of Procedural Justice – the idea that when people believe the process of applying rules is fair they are much more likely to respect and comply with authority willingly . For prisons in this public health emergency, this would seem to be more important than ever. 

Under the Ash Cloud

Stuck in Lisbon on the way back from the 2010 UN Crime Congress in Brazil, the offer of a lift into Northern Europe seemed to good to miss. At Salvador airport, I had run into my friend Tapio Lepii Seppala who ran the national legal policy research institute in Helsinki.  He had attached himself  to the official Finnish delegation (the Minister of Justice Tuija Brax , her husband , special adviser and  senior civil servants) for whom the Finnish embassy in Lisbon was plotting a 4000 km  road trip home, under the ash cloud.

To my slight surprise, Tapio followed up the next day with a text to say that the minibus was hired-  for 16,000 Euros. They would happily drop me off near Paris. There was a catch.   They had to wait a few hours for their former President Marti Ahtisaari who was flying in from Venezuela and needed a ride home too.  The Nobel peace prize winning international peacemaker had been lecturing, it emerged later, in Iceland when the volcano erupted – and together with his assistant and bodyguard had embarked on an ambitious trip to circumvent the ash via New York, Caracas and now Lisbon. After some uncertainties- the bus had no toilet – I was invited to meet them all outside the VIP lounge at Lisbon airport.

We set off at 4 pm, joined by a couple of other Finns (ex minister Suvi Anne Siimes and a finance ministry official) who had been corralled together by the embassy -and three drivers. Two of the party had been up all night with what was politely referred to as stomach flu but spirits were otherwise high.  The destination for the 22-seater coach was a ferry from Sweden. For me it was less clear. Would a warship in Santander, a Eurostar from Paris or a ferry from Calais offer the quickest way back? Or would a long-distance lorry offer a route home?

Going was slow. Despite the three drivers, we stopped at two hourly intervals for what were mentioned as legal breaks, where sweets and biscuits were bought, and cigarettes smoked. Ahtisaari bought Toblerones to share, and one or two cans of beer were consumed. Long journey conversations followed. Some serious -the justice minister was concerned she would miss Thursday’s discussion of how many nuclear power stations were to be built. Some curious -what is the difference between dinner and supper in English and Finnish? Why are windmill wings shaped as they are? Who would win the forthcoming UK election?

As we meandered into Spain, immediately losing an hour, it emerged to my surprise we would be stopping for the night. Rooms had been booked at an empty conference centre near Valladolid where we arrived at half past midnight. Fortified with a beer at a local bar (but declining the whole crab tapas on offer), we took five hours rest before a 7 a.m. breakfast and 7.30 start. I was too late for HMS Albion, so Paris beckoned.

Climbing through the Pyrenees brought dozing, reading and political conversation worthy of the global elite I had unwittingly joined – what to do about Polisario and the Western Sahara - why Cyril Ramaphosa would have made a good South African President, Tony Blair’s efforts in Northern Ireland. Talk was punctuated with constantly changing ash updates from experts in Helsinki. The Finnish Prime minister called to check on progress. The journey was creating interest in the media.  After a 12-euro prix fixe lunch at possibly the worst restaurant in France, a team photo winged its way into a Helsinki evening paper.

As we headed through the Basque country to the vineyards of Bordeaux, my thoughts turned to where I would get off. We joked about being dumped in a lay-by on the Paris peripherique with the inevitable media questions about what happened to the mystery man in the press photo.  

The drivers and the bodyguard -who seemed in charge of the route - were not sure which way round Paris they would be going and I could not engage them in a serious discussion about my disembarkation. They pored over a map but only to identify a restaurant stop for the evening. We eventually sat down at the Entrecote in Tours where Ahtisaari hosted an excellent diner. Snails, frogs, raw beef and calvados were consumed, stomach flu notwithstanding. I took the opportunity between courses to establish that there was a nearby hotel and a train service to Paris, albeit strike affected of course. This I recognised was the last supper -or was it dinner?

We said our goodbyes and the bus headed off into the night to Germany, Denmark, Sweden- two more days and nights of driving. As I settled to a few hours sleep a text arrived.  All UK airports open. I might well have been better off biding my time in Lisbon.  But despite the continuing discomforts of a 12-hour train and ferry trip to London via Paris, Calais and Dover, I would not have missed the camaraderie of two days in the bus with Finland’s elite.