Rehabilitative Culture War

 

Last month inspectors reported on a prison where “a variety of well-embedded arrangements aimed at keeping residents and staff safe were in place”. Good news, except perhaps for Prisons Minister Alex Chalk who so dislikes the term “residents” he is seeking to prevent prison staff using it to describe or refer to people in prison.

Chalk has more important things to worry about than opening up an unnecessary front in the culture wars. But he reportedly believes the increasing use of alternative language is sending mixed messages about how the state and wider society perceives serious criminals. Apparently “we should be speaking plainly and not pretending that these people are angels residing in a cell out of choice”.

While far from being the most important problem in prisons, language can be important. I recall seeing a notice from a Governor a couple of years back reminding staff not to talk about “feeding” at mealtimes or “bending up” when applying restraint. Would Chalk prefer a return to this sort of plain speaking?

There has been an overdue recognition of the importance of treating people in prison with respect and dignity, giving them a voice and showing and encouraging trust. Why? Not least because more positive perceptions of so-called procedural justice by prisoners predict lower levels of misconduct, better emotional well-being and mental health outcomes and lower rates of future reoffending.

Of course, the dreadful conditions and experiences faced by many prisoners can make the term resident look peculiarly ironic and ill fitting. But requiring the application of a generic label of prisoner could allow Mr Chalk and his colleagues to ignore those awful realities, or worse justify them under the dismal doctrine of less eligibility. He would do well to remember that people are sentenced to prison as a punishment, not for a punishment.  

In an important statement launched this week, the United Nations is rightly promoting "a rehabilitative approach to prison management that fosters the willingness and ability of prisoners to lead law-abiding and self-supporting lives upon release, and that is embedded in a decent, safe and healthy prison environment and the positive engagement of officers with prisoners".

As part of such an approach, surely governors and staff should be able to continue to use terminology which communicates most productively with prisoners and their families, something which has been particularly important during the pandemic. If the language contributes towards a more rehabilitative ethos so much the better.  Referring to people in prison as residents won’t solve all of the problems in the system but neither will it do any harm.

The Secure Estate for Children- Dates and Updates.

 

The Government’s response to February’s Justice Committee report on Children and Young People in Custody seems to raise fresh doubts that the first secure school will open in September next year. Before Oasis Charitable Trust can start their  self styled "revolution of love", the site at Medway – formerly a Secure Training Centre (STC) and subsequently used to hold adult prisoners during the height of the pandemic -needs extensive refurbishment to upgrade its facilities to “provide a homely child centred environment that meets children’s home regulations”. Subject to securing necessary approvals, the government intend to commence renovations only at the end of this year.

The MoJ say they “continue to work towards an opening date at the end of 2022 and will keep the Committee updated on progress” but I would not bet against slippage to 2023. That could make it seven years since Charlie Taylor first recommended Secure Schools in his 2016 Youth Justice Review. The government says, “in such a complex regulatory and operating environment, it is important to take the time to get it right”. They are certainly doing that.

As for the long- term ambition to replace all Young Offender Institutions (YOIs) and STCs with secure schools, the admission that this “will take some time to be realized” is a serious understatement. There is no guaranteed funding for schools beyond so-called Oasis Restore at Medway. The MoJ “will keep the Committee updated when we are able to say more about the timetable for further steps towards our vision”. MPs won't be holding their breath.

Interestingly, the MoJ say they continue to work closely with the Secure Children Home sector “in anticipation of the next round of commissioning, and we are committed to making the most of our SCH provision”. After years of reductions in the number of SCH beds, could this signal a revival of their role in youth justice?

For the short and medium term, the Government response lists a range of potentially useful initiatives underway to improve the operation of the current estate; by raising the skills of staff, improving mental health provision, reducing use of force and self-harm; and developing better resettlement plans. Pain inducing techniques were supposed to be removed from the syllabus of approved restraint at the end of last year, but this is now planned “by the summer.” As for segregation, a policy framework is due to be published by August with immediate implementation, although data on its use will be published only from the next financial year.  A further update on David Lammy’s recommendations on reducing racial disparity will be published “in due course”.

The response also says that the Youth Custody Service has strengthened its partnership with the NHS to identify the small number of children who present a complex mix of characteristics and “whose needs are more suitably met outside of youth custody.” In truth, this is not a small number, given the limited ability of YOIs and STCs to provide a safe and therapeutic environment.  

In a separate inquiry the Justice Committee last month lambasted the failure by private company MTC to deliver even basic standards of care to vulnerable children at Rainsbrook STC.  It is not entirely reassuring to find out from the Committee that when giving evidence to them,  the Executive Director of the Youth Custody Service (YCS) who is responsible for the secure estate, failed to declare that she used to work for MTC in a senior position.  The Committee were concerned  in their report that early in 2020, the MoJ granted the maximum possible two-year extension to the contract with MTC, taking the end date to May 2023. It is not clear what role the Executive Director of the YCS played in that decision, but it is to be hoped that if necessary, relevant interests were declared.

On A Wing And A Prayer ?

 

MPs on the Justice Committee heard shocking evidence this week about failures at Rainsbrook Secure Training Centre. Bad enough that children were locked in their rooms for all but half an hour a day; even worse that the practice continued after MTC- who run the Centre -had assured the Ministry of Justice (MoJ) that changes had been made.  “I do not think they were lying; I think it was utter incompetence," MPs heard from one of the inspectors.

Given the chequered history of STCs since the first opened at Medway in 1998, ministers should be looking closely at plans for the new generation of secure schools eventually intended to replace them. Details have emerged about the first of these schools to be run by the Oasis Charitable Trust which is due to open next year- more than six years after the schools were proposed in Charlie Taylor’s Youth Justice review.

Back in July 2019, when Oasis won the tender to operate the school, the MoJ promised to publish their application within two months. They are only now proposing to make it available on request. The main document is here, following a FoI request, although Oasis have apparently continued to develop and refine their operating model since being awarded the contract, so things may look different by next September.

The bid goes into considerable detail about how “Oasis Restore” will run the school which will be based on the Medway site.  As a Christian organisation, the culture is one “where everyone is treated with respect and love”, with an emphasis wholly on rehabilitation and restoration rather than retribution.  There is much to be said for the belief that “every young person is capable of change and of making more positive choices about their life and their future” and for the need to give “opportunity, space, time and support to deal with the implications of trauma and distress from earlier life experiences”.

The language looks partly right too: for Oasis, it’s ‘students’ not ‘offenders’, ‘homes’ not ‘wings’, ‘bedtime’ not ‘lockup’, ‘residential coaches’ not ‘wardens’- (although wardens hasn’t been used on this side of the Atlantic for many years). I don’t think ‘courses’ not ‘sentences’ really works, however.  It’s certainly refreshing to read that behind many young people who fall foul of the law is a creative, entrepreneurial, or artistic talent that has been misdirected. 

But as the bid acknowledges, “normalising a custodial environment and creating therapeutic care with young people has not yet been achieved in the UK.”  Some of the proposals - such as a Hub Market Place where a café, barbers, theatre and gym, will eventually be open to the public look overly ambitious.  But as the bid accepts, “to date none of the Oasis component charities…. have been involved in leading secure provision. We have much to learn.”  

Part of the learning comes from other types of facilities mentioned in the bid - understandably from secure children’s homes (SCHs) in the UK and Spain, more surprisingly perhaps from “the adult estate in Nordic countries”.

There will be two main staffing roles - coaches and security officers- alongside case workers and family support workers. Oasis will also develop a spiritual health care team that supports young people of all faiths and beliefs, as well as those who do not have a particular religious belief but who would like someone to talk with.

But even applying the learning, Oasis recognise that the responsibility of managing the extremely complex and often very difficult behaviours of young people – “within a context that sets out clear boundaries at the same time as offering constant love and unending hope” – is challenging and demanding on both systems and staff.  Will they be up to it?

The planned living arrangements look promising with physical activity to start the day, staff eating meals with students and volunteers coming in to socialise from time to time. It remains to be seen whether the £5 million allocated to refurbish Medway will succeed in creating a "therapeutic, calm, rehabilitative atmosphere in each of the houses", let alone a "beautiful physical environment for both staff and students". And how much of the social and cultural capital entitlement - such as visits to art galleries and museums - will prove possible in practice?

The education offer otherwise looks predictably strong- Oasis run 52 schools- with a core curriculum around numeracy and literacy, supplemented by vocational pathways delivered in partnership with existing charity and corporate sector partners.  Five hours sport a week is welcome though offering boxing may raise eyebrows – so too the plan that single sex sport will be used only when the physical strength, stamina or physique puts either gender at a disadvantage or makes them vulnerable.

I’m not sure why the Academy’s remit “would not include the design of specialist, individual psychological and behavioural interventions”. After all, management of behaviour is perhaps the biggest challenge of all in custodial units. 

The primary “behaviour system” will be based on a token economy with each student receiving a pay cheque on a Friday reflecting how they have behaved. This can be cashed in for Oasis Dollars which can be used to buy privileges, enrichment time and in the Hub Market Place.

The school will not shy away from punishing poor behaviour although it will use de-escalation and restorative justice to address it where possible. Where punitive action is needed, staff will remove privileges or Oasis Dollars. In cases where a young person needs to be removed from a classroom or house for their own safety, they will be taken to the Reflection Room with a coach. They will not be left alone. The bid envisages staff using reasonable force to intervene with a pupil to prevent them hurting themselves or others, damaging property that leads to the injury of others or causing disorder that disrupts learning. These circumstances will surely have to be more closely defined.

Given the inappropriateness of Young Offender Institutions and STCs, there is part of me that wishes this initiative well. But it looks too much like a risky experiment.  Secure Childrens Homes already offer a proven model – it’s they which should be being scaled up.   Oasis say they appreciate “that the challenges and opportunities inherent in creating a new kind of provision are unknown”. In fact, as MPs heard, they are all too well known.

 

Counting the Days

Two must read reports this week giving voice to the bleak experiences of men, women and children locked up in prisons during the pandemic. Powerful interviews by HM Inspectorate of Prisons evidence the decline in prisoners’ emotional, psychological, and physical well-being due to more than nine months spent by most in conditions that the Prison Reform Trust say match solitary confinement.  The reports are an important counterweight to an emerging narrative suggesting the “performance of the prison system compares favourably with that of other institutions in the UK and other prison systems internationally.”   

There are recommendations, particularly from PRT about what staff can do to mitigate some of the negative impacts of restrictions-  by taking an interest in the needs of each person as an individual, giving people time to talk through the effects of the quarantine regime, and helping people fill their time meaningfully. The Inspectorate want to see action “to maintain the few positives derived from the pandemic, such as video calling, and to make sure that prisons are prepared to restore activity as soon as it is safe”.  Neither report mentions the idea of compensating prisoners by reducing the length of time they spend in custody.

The Chair of the Sentencing Council was unable to tell the Justice Committee last week what impact COVID was having on sentencing but was confident that every sentencer in the country “ is well aware” of its effects within prisons and on community sentences. Given the Council’s aim of improving consistency, it was perhaps surprising that Lord Justice Holroyde should tell MPs “it is for each sentencer in each individual case to decide what weight to give that factor”. Encouragingly, he felt that the pandemic may be a very powerful factor against a custodial sentence in cases on the cusp of prison. But for people facing long terms, “it is of less significance because it is, in the end, expected to be something that will pass, even if it is going on longer than expected”.

Given the additional hardships facing prisoners of all kinds, there is a strong case for reductions in jail terms served across the board, including for existing prisoners. In the Australian state of Victoria, eligible prisoners have had their prison terms commuted by one day for every day of significant restrictions they have faced.  So called “Emergency Management Days” -a longstanding way of maintaining order and safety in prisons- have been applied to almost 5,000 prisoners out of a population of 7,000.

Such a response would be well received by prisoners here – an example of so-called procedural justice which could increase the extent to which they view people in authority as legitimate and worthy of respect. It could help reduce – a little at least- the sense of hopelessness and helplessness which inspectors saw becoming engrained among the prisoners they interviewed. 

No doubt, it would be less well received by right wing  press and politicians , who have opposed the Victorian  initiative. Here, it would probably require legislation.  

But given what Chief Inspector Charlie Taylor describes as the unprecedented scale of restrictions on prisoners’ lives, a sentence reduction scheme along these lines would be well justified. As one of the prisoners told Taylor’s team about his experience inside, “there’s no progression, it’s just counting the days.” He and others should have fewer of them to count.

Young Adults on Remand

 

Criminal courts should take account of age and lack of maturity when imposing sentences on people between the ages of 18-25. Guidelines say that young adults should be treated less severely when their level of psychological development makes them less responsible for a crime or increases the impact of punishment on them. 

But what about the decisions courts make prior to sentence- in particular whether a defendant should be remanded in custody awaiting trial? Should age and maturity be relevant factors here?

A new report I’ve written for the Transition to Adulthood (T2A) argues that more should be done to keep young adults out of pre-trial detention. For one thing a spell in prison on remand can be just as damaging as a prison sentence- sometimes more so. Earlier this month inspectors sharply criticised the treatment of young adults in prison and, separately, argued that increased time spent on remand as a result of court delays will inevitably add to the anxieties and frustrations of individual prisoners of all ages. “A growing, and increasingly-frustrated remand population has the potential to have a serious adverse effect on the stability of prisons”.  The remand population as a whole grew by 24% during 2020.  

It’s also the case that defendants should only be remanded to custody if they are likely to receive a prison sentence in the event of conviction. As sentencing guidelines make prison terms less likely for under 25s than over 25s, maturity should be taken into account at the remand stage too. But it seldom is.

As the Sentencing Council has recognised, many young people who offend either stop committing crime, or begin a process of stopping, in their late teens and early twenties. Therefore, a young adult’s previous convictions may not be indicative of a tendency for further offending. This is an important consideration for courts to take into account when considering risk.

Young Adults on Remand finds that -until the pandemic at least- the last ten years have seen a welcome fall in the use of custodial remands. But there is scope for both the CPS and judiciary to incorporate a greater recognition of maturity factors in relevant guidance on remand decision- making for practitioners. Courts in particular should adapt their ways of working to ensure a fairer and more distinct approach to young adults at the remand stage.

Magistrates who routinely deal with children in the youth court may place a higher weight on maturity on the occasions when they sit in the adult court. But youth magistrates (about 15% of JPs) may not always be able to persuade their adult court colleagues of its significance. The view that “he’s 18, he’s old enough to know what he’s doing” is still heard.  

Pre-trial arrangements are very different for under 18s and today’s report argues that the welcome policy of further restricting the use of custodial remands for children should be extended to young adults. In the shorter term, there is a case too for removing young adults, as well as children, from the remit of the emergency law extending custody time limits during the pandemic.    

If custodial remands are to be reduced, sufficient services will be needed to support and supervise young adults on bail, whether from the probation service, local government, NHS or voluntary organisations. And bail information schemes need to ensure that courts are made aware of non-custodial options in individual cases.

The local authority may have continuing responsibilities for young adults who have been in their care and may be able to contribute support which could help secure bail. The report suggests that transferring budgetary responsibility for young adult defendants to a more local level – as is the case for under 18s- could stimulate better provision of community-based measures, including suitable accommodation. Current bail hostel arrangements are inadequate.  

The report also recommends that more is done to monitor bail and remand decision- making in respect of young adults to inform efforts both to reduce custodial remands overall and tackle any disproportionate use for black and minority ethnic defendants.  

Thanks in large part to the determined and longstanding work of the Barrow Cadbury Trust, recent years have seen a growing consensus that young adults aged 18-25 require a distinct and tailored approach from the justice system. Making the necessary changes to law, policy and practice has been a slow and chequered process. Remands are an area where the pressures of the pandemic could help to accelerate progressive change.

Sentencing Trends

 

 

To give effect to its manifesto commitment to introduce “ tougher sentencing for the worst offenders”, the Government has sought both to ensure that more of a sentence is served in prison and to provide courts with options to impose longer terms. It moved quickly to shift the automatic release point from halfway to two-thirds on fixed term sentences of 7 years or more imposed for serious offences- something it had tried and failed to do before the December 2019 election.  

While the change made by the Release of Prisoners (Alteration of Relevant Proportion of Sentence)Order 2020 applies to people sentenced after 1 April 2020, emergency legislation in February made new restrictions on the early release of terrorist offenders retrospective with current and future cases henceforth being considered by the Parole Board at the two thirds point. The Independent Reviewer of Terrorism Legislation  was concerned that as a result  terrorists who served their full sentences would be released unconditionally without licence.

May saw a more comprehensive Counter Terrorism and Sentencing Bill propose a new 14 year minimum Serious Terrorism Sentence with an extended licence period of up to 25 years and restrictions on any early release for serious and dangerous terrorist offenders, aged under and over 18, who receive an Extended Determinate Sentence. The Bill is still in Parliament.

In July a limited consultation was launched on doubling the maximum sentence for assaulting an emergency worker from 12 months to 2 years. It was raised from 6 to 12 months only in 2018. The large majority who responded were apparently in favour, but the MoJ has refused to publish the responses. Legislation is likely to follow next year as part of a raft of measures proposed in September’s White Paper A Smarter Approach to Sentencing.

These will abolish automatic halfway release for a yet wider range of prisoners, increase tariffs for discretionary life sentences, and widen the scope of whole life orders which involve no prospect of release. There are plans to prevent courts departing from minimum mandatory prison terms for repeat offenders.

Alongside these more punitive measures, the White Paper includes some more constructive plans to strengthen community based supervision. The Alcohol Abstinence and Monitoring Requirement (AAMR) or Sobriety Tag came into force in October and another go at Problem Solving courts, a return for deferred sentences and more treatment options are promised.   

If and when enacted, any substantive changes to law will be integrated into the new Sentencing Code which came into force on 1 December, consolidating existing sentencing procedure law into a single act and making the daunting technical task of sentencing significantly more straightforward for judges and magistrates.  It is hoped that the Code will ensure that Sentencing Guidelines are easier to apply than hitherto.

The Sentencing Council has published two new guidelines, on sentencing offenders with mental disorders and on firearms offences. While the former is something of a missed opportunity, the latter breaks new ground by giving explicit reminders of the disparity in punishments being imposed by the courts on white, Asian and black offenders.

This follows research published earlier in the year which found that for three drug offences, when taking into account the main sentencing factors, the sex and ethnicity of offenders were associated with different sentencing outcomes- for example, the odds of a Black offender receiving an immediate custodial sentence were 1.4 times the size of the odds for a White offender.

Drawing  on the Court of Appeal case of Manning, the Council also  published a note reminding courts to bear in mind the practical realities of the effects of the pandemic, and consider whether increased weight should be given to mitigating factors, given that the impact of immediate imprisonment is likely to be particularly heavy for some groups of offenders or their families.

After ten years of work, the Council has conducted a wide ranging consultation about its future priorities. My report for Transform Justice argued that it should be doing much more to limit the use of imprisonment in line with its duty to consider the costs and effectiveness of sentences and that it may need a wider remit to fulfil its potential. This may not be easy to achieve given the “perceptible hardening of the public and political attitude to crime” noted by the Lord Chief Justice in a significant if somewhat depressing speech in December.  Real or not, the perception of a hardening may impact on the root and branch review of parole which got underway in October. 

Two voluntary sector initiatives may help counter the punitive trend. The Sentencing Academy aims to inform public debate and promote effective sentencing practice. It has reviewed the 20 year old scheme which enables victims to make a personal statement in court. In other jurisdictions victims who use the scheme are more satisfied with the sentencing process and there has been no systematic increase in sentence severity as a result- but we don’t know if that’s the case here so a comprehensive evaluation is needed. 

The Prison Reform Trust has established an Independent Commission into the Experience of Victims and Long-Term Prisoners which looks to stimulate fresh thinking on the range of issues from sentencing to parole, particularly in respect of the growing number people serving very long sentences. The experiences of those receiving long sentences when young people have been closely studied by Ben Crewe and colleagues.    

Something is certainly needed to put the brakes on the use of imprisonment which is projected to grow by 25% over the next six years, with demand for places highly likely to outstrip supply.   In the year to June, the average custodial sentence length was the highest in the decade at 19.5 months for all offences and 22.0 months for indictable offences. The custody rate for indictable offences was also the highest in a decade at 35% up from 32% the previous year.

The increases are likely to have been influenced by the prioritisation of cases during the pandemic. The public health emergency has of course had many and various impacts on the work of courts. One minor one seems to have been a delay in progressing the televising of judges’ sentencing remarks which was announced in January.  I was against this back then but might have been more positive had I known about the lockdown to come.    

 

 

A Year in Youth Justice

 

Ironically, a year which saw children in custody spend huge amounts of time locked up in their cells, opened with the Chief Inspector of Prisons Peter Clarke recommending an entirely new approach to the use and practice of separation - situations in Young Offender Institutions (YOIs) where children are unable to mix with their peers or attend activities in the normal way.

Within weeks, Coronavirus effectively subjected almost all children in custody to a form of system wide separation. In May, Clarke praised the swift actions taken to keep children safe from the virus, and the creativity of staff and managers in providing opportunities for children to receive meaningful interaction. By July, he was more critical of disproportionate and avoidable restrictions which had seen most locked up for more than 22 hours for almost 4 months.

Clarke contrasted the suspension of face to face education in the YOIs run by the Youth Custody Service with its continuation through the pandemic in privately run and local authority secure establishments, but October’s inspection of Rainsbrook Secure Training Centre (STC) calls this judgment into question. It found that “children received education work packs to complete in their residential units during most of the Covid-19 restrictions as all education classes were suspended”. Two months later, lack of improvement to a spartan regime prompted a formal demand for urgent remedial action by the Justice Secretary.

In the final annual report of his tenure, Clarke rightly described childrens custody as "a systemic failure" producing "appalling" outcomes for many children. Charlie Taylor, who was to take over from Clarke in November, produced a further scathing assessment in his review of physical restraint, reporting that some staff appear to avoid spending all the time they can with children, have little understanding of why children behave as they do and what adults can do to help,  using force to maintain their position at the top of a hierarchy of violence. As a result of his report, the use of pain inducing techniques is set to be removed from the system of behaviour management in YOIs and STCs by the end of the year.

Clarke’s annual report bemoaned slow progress in implementing the new model of secure schools, agreed as a blueprint for the future in 2016 following Taylor’s first Youth Justice Review. The first school to be run by educational charity Oasis won’t open until 2022.  Unusually, Taylor himself used a piece in the Spectator to blame delays on tortuous bureaucracy in the Ministry of Justice (MoJ) and the controlling instincts of the prison service. Whether running a secure school is compatible with charitable status has also arisen as an issue- although by my reckoning one existing secure childrens home in England is run by a charity – as are four out of five in Scotland. The MoJ has yet to honour its promise to publish the application by Oasis to run the new school although the process for appointing the Director is underway.

Keith Fraser took over from Taylor as Chair of the Youth Justice Board (YJB) in April. One of the Board’s five strategic objectives for 2020-21 has been “to see a youth justice system that sees children as children first, and offenders second.” In response to the Justice Committee in June, Fraser appeared to dismiss this as a matter of branding more than substance. In November, the Chief Probation Inspector,who also inspects youth offending teams (YOTs), thought it important not to lose sight of the second part of the formulation – offender- because of the risks to others presented by a sizable proportion of children known to YOTs.  A debate about the direction of youth justice policy and practice may be on the cards although the key role played by  YOTs – which celebrated their 20^th birthday this year – looks set to remain.  

A further YJB objective has been to influence the system to treat children fairly and reduce overrepresentation. In a somewhat tame report published in November, the Justice Committee wanted to know what the MoJ is doing to address racial disproportionality. More action is certainly needed. Nearly nine out of 10 children from London held in custody on remand are from a black, Asian or minority ethnic background. Encouragingly, a higher threshold for custodial remands was promised in September’s White Paper, sitting alongside less welcome proposals for longer sentences for serious crimes and tougher community supervision.  

While custody has been a bleaker experience than ever, the numbers have thankfully reduced to 535 in October 2020 from 791, 12 months earlier. Projections suggest that number could go up by 75% by 2026.  Much will depend on if, when and how the system gets back to normal as well as the changing nature of the challenges it has to face.