Murmuring Judges: Should a High Court Judge run a Pressure group?

 Last week’s Daily Telegraph readers were warned that the decline of marriage has led to family breakdown in an article that took to task recent research findings by the Institute for Fiscal Studies.   No surprise there, nor that the piece came from the Marriage Foundation, a charity whose mission is to be “a national champion for marriage”. More surprising is that the comments are attributed to High Court Judge, Sir Paul Coleridge, the Foundation’s founder and chairman. Last year, following a complaint from a member of the public (me), Sir Paul agreed with his superiors that a lower profile role within the organisation would be more appropriate for a serving judicial office holder.  

I originally wrote to the Office for Judicial Complaints after   Sir Paul spoke about the Foundation on the Today programme last year. I have no strong animus against marriage nor against Sir Paul – I have never met him- and I am sure that he is acting out of the best of motives. However, I cannot see how it is possible to be heading up a high profile campaigning body while continuing to serve as a senior judge. After all, according to their terms and conditions, High Court Judges should not in any capacity engage in any activity which might undermine, or be reasonably thought to undermine their judicial independence or impartiality. As well as foregoing political activity, Judges must be “on their guard against circumstances arising in which their involvement in any outside activity might be seen to cast doubt on their judicial impartiality or conflict with their judicial office.” The Guide to Judicial Conduct cautions against expressing views out of court that give rise to issues of perceived bias or prejudgement in cases that later come before the judge. “Care” it says “should be taken not to cause the public to associate a judge with a particular organisation group or cause. Participation {in public debate} should not be in circumstances which may give rise to a perception of partiality towards the organisation, group or cause involved or to a lack of even handedness.” 

In the context of family cases, I wondered how a judge can retain an impartial approach to decisions about divorce and the care of children if he is simultaneously running a campaign to promote marriage, which a priori sees cohabiting or other forms of family organisation as less worthy.

After several months the Lord Chancellor and President of the Queen’s Bench Division expressed themselves satisfied that Sir Paul’s involvement with the Foundation was not incompatible with his role as a High Court Judge. Nor did they consider that his appearance on the Today programme amounted to misconduct. They were concerned about it however because “there was in their view a question as to the degree to which a judge should provide public support for such an organisation by speaking out publicly”. I was told that Sir Paul had agreed “in relation to the Marriage Foundation, to take a back stage role from now on”.

Notwithstanding this agreement, within a month Sir Paul was interviewed in The Times where he opined that the government’s plans for gay marriage were “the wrong policy” and that ministers were wasting effort   on an issue that affects “0.1 per cent” of the population. Somewhat surprised that giving a controversial interview to a national newspaper was seen to be consistent with a backstage role, I took the matter up with the Judicial Appointments and Conduct Ombudsman. Its role is ostensibly limited to reviewing the way complaints are dealt with rather than looking afresh at the merits of the case. Nevertheless while  specific concerns about  the handling of my  complaint were not upheld , the Ombudsman’s report and that of his investigator, which arrived last month, showed they had been considered with a great deal of care- rather more so indeed  than  had  the original complaint by the Office for Judicial Complaints.

None the less, there remains a considerable grey area in terms of what judges are or are not allowed to do in terms of promoting causes or campaigning for change. In terms of regulating what judges do, I was surprised to learn from the Ombudsman’s office that the Guide to Judicial Conduct does not form part of the judicial disciplinary system and “that though it is a useful reference, it does not define misconduct and will not form the basis of any finding of personal misconduct.” This seems odd given the statement on the judiciary website that “all judicial office-holders agree to adhere to a strict code of conduct.” It is in fact neither strict in terms of its demands nor its enforceability.  Many judges would no doubt argue that   the Guide was written only to assist them and certainly not to assist members of the public in making complaints of misconduct. Others, such as one of those involved in considering my complaint would take the view that “the guide to judicial conduct is not an authority for the proposition that it is for a judge to decide what is appropriate”. But if not, what exactly is it?

Digging too deeply into these questions might be seen to risk infringing the independence of the judiciary. But finding the right level and modes of transparency and accountability for judges is important. Does independence of the judiciary mean that judges are independent of their superiors and can ignore advice provided to them and the agreements they have made with them?   

Can we really get better prisons at reduced costs?

Consider a prison where only 10 per cent of prisoners spend ten or more hours out of their cell on a weekday: where a third say they have felt unsafe, and fewer than a third say a member of staff has checked on them personally in the last week to see how they are getting on; where less than a quarter think it easy to see the doctor and a fifth report that they have been prevented from making a complaint.  This is not a poorly performing jail but one that has been rated as exceptional in the latest Prison Service assessment.

Like all prisons this one is being required to cut its costs. But will running it more cheaply – which inevitably means reducing staff numbers - do anything to address what seem to be pretty serious shortfalls? Are fewer resources likely to increase the number of prisoners – 11% at the moment -who feel that a member of staff has helped them prepare for release? Or raise from 23% the number of prisoners who say their cell call bell is normally answered within five minutes.

The government will no doubt use the mantra that what matters is not the quantum of resource available but how it is deployed and managed. They might point to modern new prisons where according to their business plan, lower costs can produce improved facilities for the management of prisoners. One such is Oakwood, the UK’s biggest and cheapest prison where a specification  as high as those in other prisons is allegedly  being provided at less than half the cost per prisoner place.

Unfortunately the Prison ratings place both Oakwood -and Thameside, the other private prison which opened last year-, as being of serious concern. Inspectors went to Oakwood last month and there will be little surprise if they report some of the same problems they found at Thameside. There “as an operational response to rising levels of violence the prison had taken the unusual step of effectively locking down the prison, severely curtailing the regime and in particular prisoner access to time unlocked. The prison had done little to evaluate the success of this quite extreme strategy and at the time of our visit there seemed only vague plans to restore the prison to normality”.

Some of the difficulties of course can be put down to the teething problems that accompany the opening of any new prison.  Others may result from the simple but highly irresponsible policy of trying to run a prison with too few staff.

The serious problems in the best rated prisons let alone the worst suggest a looming institutional crisis. The Prison system and those who inspect it show too great a degree of tolerance of poor standards and of risk. Such a tolerance was one of the reasons identified by Robert Francis as to why numerous warning signs did not  alert the system to the developing disaster in Mid Staffordshire NHS Trust . They must not be unheeded in our prisons.

Young Adults in Custody: Time for Change?

The Prison Inspectorate’s scathing report on Feltham once again focuses attention on how best to accommodate young people in custody. For juveniles under 18 the time has come to remove them from the Prison system altogether. The Government is proposing  a creative and radical package of reforms for the juvenile secure estate;  a network of Secure Colleges outside prison  is surely the way forward for the small number of under 18s who cannot be dealt with in the community.

But what about young adults?  “Transforming Youth Custody” says nothing about the 18-20 year olds whose experiences of violence at Feltham B   prompted the Chief Inspector to question the viability of it being set aside for just young adult prisoners.

About 12,000 18-20 year olds received prison sentences last year with approximately 7,000 in custody at any one time. Most are held in dedicated Young Offender Institutions (YOI’s) but increasingly these establishments are being combined or even integrated into adult prisons. About a third of young men and all of the young women in the age group are now held in these dual establishments.

 The jury is out about whether integrated prisons for those aged 18 plus can provide a sufficient focus on the distinctive needs of young adults. The law does not permit under 21’s to share cells with older prisoners, but mixing wings in some establishments has led to reductions in assaults and other disruptive behaviour- a serious problem with this age group. But can they offer the constructive and purposeful regimes, therapeutic help and personal inspiration needed to enable young adults to put crime behind them? 

In Germany , in each of the lander , separate youth prisons accommodate all of those from 14-21 sentenced by the courts. Under 18’s and young women live in separate house blocks but take full part in the active daily programme of education , training and employment. Unlike many British prisons, almost no young people are found on the wings during the day with evenings and weekends filled with a wide range of recreation activities. The campus at Neustrelitz north of Berlin feels more like a further education college than a prison. Staff eat their lunch in a canteen alongside the trainees. In the UK meals are almost always taken in cells , with disruptive prisoners subject to the  what is sometimes disturbingly called “controlled feeding”.

The Prison Service in England and Wales acknowledges that even in a dedicated YOI, life for a young offender is not that different to prison life for adult prisoners. Staff in a YOI they admit “will not be able to give you much individual support, as there will generally be one member of staff for every ten young people.” Former Chief Inspector of Prisons Dame Anne Owers described young adults as a neglected and under -resourced age group, and whatever the shape of the establishments that hold them, the time is surely right for a renewed focus on identifying and meeting their needs in prison.

Who shot JR? Whatever happened to Justice Reinvestment?

Justice Reinvestment (JR) is an approach to penal policy which contains several important components of a better criminal justice system. At its core is the idea that much of the money spent on justice is used ineffectively and produces a poor return.  People in prison are largely drawn from neighbourhoods characterised by poverty, deprivation and social problems. If some criminal justice funding were spent not on processing individuals in these areas by “cops , courts and corrections” but instead on providing better services and facilities, better outcomes would result for the individuals and the communities where they live.

In January 2010, the Parliamentary Justice Select Committee produced the report ‚Cutting Crime: Making the Case for Justice Reinvestment which called for a radical rethink of the way criminal justice money is spent. It recommended reducing prison numbers by a third and the movement of resources towards spending on prevention in targeted communities. The report encouraged local agencies to play a much more active part in preventing and responding to crime.

The Coalition government took up the slogan at least, describing their rehabilitation revolution as making “the concept of justice reinvestment real by allowing providers to invest money in the activity that will prevent offending rather than spending money on dealing with the consequences.”

But JR is much more than a financing mechanism. It is about reducing the use of imprisonment and encouraging local responsibility for organising and resourcing the alternatives, as well as a focus on effective use of resources. Reductions in prison numbers and a localist approach (to probation at any rate) appear to have disappeared from the government’s agenda.

To be fair, pilot schemes to incentivise local statutory partners to reduce demand for adult  prison places and to provide councils with cash to divert under 18’s from custody are producing some technical lessons about what needs to be done. But with disinvestment the overall order of the day, stakeholders in the adult pilots complain of insufficient incentives   to make substantial changes to practice that were not already in train; on the juvenile side two of the four schemes have withdrawn from the pilot.

What’s needed alongside emerging technical models is a renewed political level commitment to JR. It's unlikely to come from a Government which wants to make the system not smaller but simply cheaper - but who nevertheless found £250 million to fund a Titan prison in North Wales as part of investing in Britain’s future.  

But if the Labour party needs a big but affordable idea for criminal justice, JR may be it.