Rules Don’t Apply

Friday’s Sun included a strongly worded comment piece lambasting Covid policy as driven by “Matt Hancock, a fanatic, and Boris Johnson, a muddled old bumbler” and as inflicting unjustified misery and economic mayhem while failing to stop the spread of the virus. No surprise there -newspapers are free to voice a range of views on issues of the day – but more troubling is the fact that the writer of the piece is former Supreme Court Judge Lord Sumption.

He’s no stranger to controversy, admitting in August that he had not himself complied with “some of the law” and suggesting last month that people should decide for themselves whether or not to obey coronavirus laws. He went further yesterday arguing “it is about time we voted with our feet and took back control of our own lives.” Sumption is entitled to his libertarian views and but should he be expressing them?

For one thing it’s a breach of the long standing convention that judges should not comment publicly on the merits, meaning, or likely effect of government policy. For another, The Guide to Judicial Conduct says that judges "should be aware that participation in public debate on any topic may entail the risk of undermining public perception in the impartiality of the judiciary". It also says that "where a judge decides to participate in public debate, he or she should be careful to ensure that the occasion does not create a public perception of partiality towards a particular cause or to a lack of even handedness". There’s nothing remotely even handed in what Sumption has to say or the way he says it.

So what? He’s retired and surely he can say what he pleases. Unfortunately for him the Guide to Judicial Conduct makes clear that “a retired judge may still be regarded by the general public as a representative of the judiciary. Retired judges should exercise caution and are encouraged therefore to refer to this guidance so as to avoid any activity that may tarnish the reputation of the judiciary.”

Unfortunately for us, Sumption is not fully retired. He is one of four members of the Supplementary Panel of the Supreme Court so until he reaches 75 in 2023, he can be called upon “when additional judges are needed to form a panel of the requisite number”.

Call me old fashioned, but I’m genuinely puzzled as to how Sumption could now conceivably sit in any court let alone the highest in the land. I’ve made a complaint to the Judicial Conduct Investigation Office but am not expecting much. Sumption is probably a member of the club to whom ordinary rules don’t apply. If that’s the case, as Sumption says about Covid policy “this is worse than unjust. It is insane”.

A Game of Two Halves

When Justice Secretary Robert Buckland finally overcame technical glitches to give his sentencing speech at the Centre for Social Justice, it was like watching a game of two halves. Not surprising perhaps as the White Paper he was launching seeks to strike a balance between “making sure the public are safer from harm and, at the same time, ensuring offenders have the right opportunities to change their lives”.

He galloped through the more punitive reforms already trailed at the weekend, the dismal justification for which amounts to little more than the public “want to know that when serious and violent offenders go to prison, that’s where they’ll stay for as long as possible”.  He added a couple of other  gratuitous ideas  – potentially longer terms for children receiving Detention and Training Orders and trying to ensure courts impose more mandatory minimum jail terms for repeat offenders.  

More interesting,- not least it seemed to Buckland himself - were some of the “smart” measures he  went on to outline – more treatment options for people serving community sentences, an “empowered” probation service and reductions in the periods after which some sentences can be considered spent for the purposes of criminal record checks.  Tighter criteria for remanding children to custody are very welcome, so too a greater use of deferred sentencing to provide opportunities for accessing help with problems or taking part in restorative justice. Positive words about out of court disposals made a surprising change – though limiting police in law to just two types could have unintended consequences.  

There’s a nagging doubt that while the harder measures will definitely come to pass- legislation is expected next year - many of the smarter ones may not get beyond pilots or evidence gathering. Take Problem-Solving Courts, enthusiasm for which has waxed and waned for 20 years. This is at least the third iteration of pilots I can remember. They will have a harder edge this time round with immediate short custodial stays as a sanction for non-compliance with court orders – the so called swift and certain approach. But there’s a strong chance that problem solving (like restorative) justice is destined to stay at the margins of the way we respond to crime.   

In similar vein, Buckland rightly diagnosed the problem of people getting short prison sentences without courts seeing a pre- sentence report (PSR). His solution is not the obvious one - to require a PSR before custody can be imposed- but for further work to be undertaken “to build the evidence base”.  He spoke about neurodivergence – conditions such as autism and dyslexia –as “something that is very close to my heart”. But the White Paper proposal is for a national call for evidence to improve understanding. That’s fine as start but will it go anywhere beyond that?

In the meantime, the impact assessments (IA) published alongside the White Paper- always worth reading- show the likely consequences of the longer spells in prison- an increase in the adult prison population of 600 and the child custody numbers of 50.  These don’t include the effects of tightening up on minimum mandatory sentences for certain repeat offences, nor of any knock on sentence inflation which may result.  

With refreshing honesty, the IA also points out that longer time in custody may strain familial and community links, could limit offender motivation for re-engagement in rehabilitation, and ultimately increase the likelihood of re-offending.  It also risks increasing prison instability, overcrowding self-harm and violence.

That’s one reason it’s so important that the non- custodial measures in the White Paper work. Of course, the more "robust" they become, the more they can act simply as an ante-room to prison. 

As they say, in the end, it’s the hope that kills you. 

The Impulse to Punish

Depressing if predictable trailing of the forthcoming Sentencing White Paper today, with Justice Secretary Robert Buckland telling Sun readers “it’s time for a tougher criminal justice system” and the Prime Minister writing in the Express that “some individuals are so dangerous or their crimes so abhorrent that they should never be released”.

Some comfort I suppose that after explaining his plans to lower from 21 to 18 the age at which people convicted of murder will be able to be sentenced to spend their whole life in prison , Johnson clarified that he wasn’t “talking about permanently locking up young people who make teenage mistakes or commit youthful indiscretions”. Thanks for that . And maybe some promise in his view that “we need more and better rehabilitation behind bars, improved monitoring of and support for ex-prisoners and more effective non-custodial sentences for low-risk offenders”. But all in all while the numbers directly affected by his draconian measures may be relatively small, there’s a real risk of an inflationary knock on effect on sentencing levels for less grave crimes.

It’s possible that courts may re calibrate their sentences downwards in the wider range of cases where two thirds rather than half will be spent inside. But for some reason I’ve never understood, they are not supposed to take too much account of what a sentence means in practice.  More likely that some will take their lead from Johnson’s idea that public protection should be the single most important principle of sentencing and impose yet longer terms. Of course, public protection is important but the experience of the Imprisonment for Public Protection (IPP) sentence – widely acknowledged to be basically unjust -should serve as a warning against ignoring other purposes of sentencing.   

Johnson may be surprised to know that he has some support in international law. The Nelson Mandela Rules say that the purposes of a sentence of imprisonment are primarily to protect society against crime and to reduce recidivism. They go on to say that those purposes can be achieved only if the period of imprisonment is used to ensure, so far as possible, the reintegration of such persons into society upon release so that they can lead a law-abiding and self-supporting life. And that's a problem.  

Last week’s Public Accounts Committee Report showed the government’s abject failure to make progress on David Cameron’s 2016 vision of “a modern, more effective, truly twenty-first century prison system."  Given the financial constraints facing the government in coming years its hard to see much in the future.  We have heard about better rehabilitation in prisons for a decade but it seems much less capable of being delivered than are longer sentences.

Maybe the White Paper will have something more positive to say but I am not holding my breath.  As Nietzsche said, “ Mistrust all in whom the impulse to punish is powerful". 

Consulting Position

Last month the Ministry of Justice launched a consultation on doubling from 12 months to two years the maximum sentence for common assaults on workers in emergency services such as police officers, firefighters and paramedics. Although the maximum was raised from six to 12 months as recently as 2018 in the Assaults on Emergency Workers (Offences) Act, the consultation on increasing it yet further was promised in the 2019 Conservative manifesto.

According to the Sentencing Council (who themselves have recently consulted on guidelines for violent offences), common assault usually involves minor injuries with no lasting impact.  The Crown Prosecution Service (CPS) say that anything more than grazes, scratches, abrasions, minor bruising, swellings, reddening of the skin and superficial cuts should be charged as Assault Occasioning Actual Bodily Harm (ABH) which carries a maximum sentence of 5 years (7 for the racially aggravated version of the offence).  When there is really serious harm, GBH will be the offence- and for both ABH and GBH the fact that the victim is an emergency worker makes the offence more serious for sentencing purposes. 

  

There’s a strong argument that assaults on people who protect society and deliver services on our behalf is a more serious matter than an attack simply on an individual victim and whether the best way to respond to such assaults of whatever kind is through yet harsher punishment is a depressing but not unreasonable question to raise.

What’s less reasonable is for the Ministry of Justice to rely only on the actual or potential victims of the offence to help them answer it. Rather than proceeding with a public consultation, the MoJ has undertaken “targeted engagement” with 70 plus groups representing emergency workers along with the CPS, judiciary, lawyers and the Sentencing Council.  The representative groups include professional associations and trade unions, some familiar -the Police Federation, Prison Officers Association and Royal College of Nurses – some less so – the British Dietetic Association and the British Orthoptic Society.  

There was no consultation document as such but a letter from Justice Secretary Robert Buckland inviting consultees to give their “views as to whether the current maximum penalty provides the courts with sufficient powers to reflect the seriousness of the offending”. Feedback could include “the direct experiences of emergency workers or any qualitative or quantitative data you may hold on the operation of the existing legislation”.

What’s lacking is any consideration of the impact that the change might have on courts and prisons or the possibility that aims of sentencing other than punishment- particularly reparation to victims or the reform of offenders might be worth pursuing more vigorously in these types of case. Nor is the opportunity to comment on the knock on effects that such a big change might have on how courts may deal with ordinary assaults on members of the public.    

It rather looks as if the government has made its mind up what it wants to do and is looking simply for supporting evidence. Home Secretary Priti Patel described the consultation as sending “a clear and simple message to the vile thugs who assault our emergency workers – you will not get away with such appalling behaviour and you will be subject to the force of the law”. 

In fact, as Buckland’s letter explains, since the original legislation came into force in November 2018, of the 9,000 offenders sentenced for assaulting an emergency worker only one in six was given an immediate custodial sentence, the average length of which was 2.6 months. This does not suggest that courts are frustrated by the current 12 month maximum. The government clearly is.

The Sentencing Council expects their forthcoming guideline to increase sentencing levels when it comes into force. Unlike the MoJ, in finalising their guideline they will take account of the views of interested members of the public, professionals in the criminal justice field, academics and people with experience of the criminal justice system- and publish a response following consultation.

Buckland does not intend to publish a government response following his own targeted consultation. It’s probably clear what it will be.

Safety In Custody- A Case Behind the Statistics

Published today is the report of an independent investigation I’ve undertaken for the Ministry of Justice into a very serious assault that took place at HMP Bristol back in 2014.  AD, a Somali Muslim man was subjected to a violent unprovoked attack by white prisoner EF on the exercise yard in the prison’s Brunel Unit – a therapeutic intervention unit for prisoners with mental health problems where both AD and EF were accommodated. 

AD sustained life-threatening injuries which have proved enduring, involving both physical and mental impairment. He requires full-time medical care. Following a criminal investigation EF pleaded guilty to the attempted murder of AD. AD’s family, who participated in the investigation, have been devastated by what happened to their loved one and want to know how such a catastrophe could take place while he was in the care of the state.    

AD had been on remand at Bristol for more than six months. He suffered from a psychotic illness and while located on one of the prison’s main wings had been recommended for a transfer to hospital. He was instead moved to the Brunel Unit, where he resumed taking anti-psychotic medication. His mental health improved such that he was due to return to a main wing.  He was staying in the Unit for a few more days so that extra support could continue to be provided for him during a stressful period when he faced a court appearance and was being assigned a new key health worker. It was during this time that the assault took place.

EF had been in the Brunel Unit for six days having been remanded in custody, charged with murder. Mental health nurses at court recommended EF be placed in the Unit because of potential psychosis.  Once on Brunel, no risk that he might harm other prisoners was identified and his behaviour gave no indication that he might commit a violent assault. In fact, EF was highly delusional, forming a view that AD was the prophet Mohammed and his enemy. The assault was investigated as a hate crime by the police and undoubtedly contains elements of islamophobia, although how much of this was brought about by EF’s mental illness is difficult to say.

The investigation found that most of the decisions reached about the care of AD at HMP Bristol were, in the light of the relevant policies and procedures in force at the time, reasonable ones. But six months on remand was, in my view, too long.

As for EF, there were shortcomings in the way the decision was made to place him in the Brunel Unit and weaknesses in the assessment of the risks he posed while there.  The exercise yard was not properly supervised at the time of the assault – AD and EF were in the yard with a third prisoner but with no staff member present. The one prison officer on duty in the unit that morning was in the process of escorting another prisoner back from the yard to his cell.  The response to the incident was prompt once the alarm was raised by the third prisoner on the yard and by two civilian staff whose offices looked out on it.  

Most of the failings identified in the report were institutional in nature: confusion about the criteria for admission to the Brunel Unit, a lack of clarity about procedures there and a variety of interpretations among prison and healthcare staff about their respective responsibilities.

The shortage of prison staff available to work there on the morning the assault took place is a major concern.  The officer on duty was placed in a very difficult position. He did what he thought was best for the prisoners in his care by enabling exercise to take place. Although leaving the yard unattended for a short period was in line with custom and practice, it was not compliant with policy designed to ensure the safety of prisoners. The investigation found that the staffing complement of five officers for Brunel and the adjacent Segregation Unit was on average available only one day a week in the month leading up to the assault, with only three staff deployed on almost a third of mornings.

During the investigation, a particularly disturbing allegation was made that prison officers had been actively encouraging other inmates to attack Somali prisoners round about the time of the incident. The investigation found no evidence of any collusion between staff and EF in the assault on AD. But despite some commendable efforts by the prison to engage with the Somali community, the report finds that insufficient priority was given to address equality and diversity issues at the time.  As an example, EF told reception staff when he first arrived at the prison that he would only share a cell with someone from his “own ethnicity” and not with “a homosexual”; but the basis of these attitudes were not explored or challenged at all.  They should have been.

A troubling claim was also made by the governor of another prison in the South West who conducted an internal investigation for the Prison Service in the months after the assault. His report surprisingly found that there was no evidence to substantiate that EF chose AD for the assault due to AD’s ethnicity.  The governor told me that he added that statement after being asked by his superior to soften his investigation report and “lessen the impact” on the prison service. The prison service accepted my recommendation that this serious allegation of improper pressure being applied to the governor should be looked at separately.  

The independent report on this by Dale Simon, also published today, found that there was no substance to the governor’s allegation- he had in fact been encouraged to address the issue of racial motivation more fully in his internal investigation rather than play it down.  Ms Simon is concerned however that the internal investigation report was accepted by the Prison Service, “whilst in the full knowledge that the report had failed to explore the fundamental issue of possible racial or religious motivation”.    

It’s pleasing that all bar two of the 31 recommendations made in my investigation have been accepted. These include improvements to the management of the Brunel Unit, installation of CCTV cameras in its exercise yard, and work with Bristol based charity Stand against Racism and Inequality (SARI) to develop an action plan to ensure that equality and diversity issues are effectively led and managed in the prison. 

Whether some good can come out of an incident such as this depends on the wider context. HMP Bristol has been under extreme pressure in recent years with the Chief Inspector of Prisons invoking the Urgent Notification Protocol last summer. It’s one of seven prisons whose performance was rated as of serious concern by HMPPS in the last financial year.  There may be some slight cause for optimism in the 7% fall in serious assaults recorded in prisons last year. But there is a long, long way to go to ensure an acceptable level of safety in custody and to reduce to a minimum the chances of a similar disaster to that which befell AD occurring in the future.            

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.