Howards Way: Chris Grayling follows Michael not John

Chris Grayling’s speech to the Tory Party conference had more than an echo of Michael Howard’s twenty years ago. We were fortunate not to have the 27 pledges Howard promised back in 1993. I make it 16 in Graylings speech if you include what he’s done, what he’s planning to do in the next 18 month and what he’d  do if the Tories form a government in 2015 .

His claim that prison works could have been taken word for word from Howard’s speech:  “{Prison} takes the most difficult and prolific offenders off our streets and protects our hard working, law abiding citizens. It sends a strong message about what our society is willing to accept, and what it is not willing to accept.”

True, Grayling’s world is not all about punishment and he does believe in people’s ability to change. He understandably skated over the substantial challenges he faces in  “pushing through the most radical changes to the way we rehabilitate offenders for a generation.”

But there is a lot about punishment in Grayling’s “end to soft justice”. Dispiritingly, he opened with a tale of two young offenders being sent to a segregation unit for some infraction or other. He seems to want prisoners to stay inside for longer; to pay fines for any damage they cause and  to have to earn any privileges (which cannot include Sky TV) . He doesn’t think they should to get legal advice if they want to make a serious complaint about their treatment.

I am not sure whether Grayling  reads reports of the Prison Inspectorate and Monitoring Boards but presumably his department has warned him about the risks of introducing more sticks and removing carrots as staff are being cut . He will ignore them because for him  the point of a punitive culture in prisons is not just about the impact it has on prisoners- it is to provide “ a system that hard working, law abiding people can have confidence in.”

This is a dangerous road to go down, which can all to easily end in what  retired Law Lord described (in respect of one of Michael Howard’s decisions) as  “institutionalised vengeance”.  Its all the more worrying when combined with a plan to weaken legal protections and safeguards. Grayling scorned “the all too familiar yob’s catchphrase ‘I know my rights’” as if such people should not have any.

The next two days the Howard League is holding an important conference called “What is Justice: Re-imagining Penal Policy”. I somehow doubt that Mr Grayling will be sending his advisers. More’s the pity. 

Cautionary Tale

So the Justice department is to prohibit the use of police cautions for the most serious offences, because Chris Grayling says that they are unacceptable and unfair to victims.  Existing guidance, issued only six months ago, permits the use of simple cautions as a response to serious offending only in exceptional circumstances, “where the decision maker is able to conclude that the public interest does not require the immediate prosecution of the offender and that if it took place there would be reasons why the court would not impose a period of imprisonment or high level community order.”

As things stand, in the case of crimes which, if prosecuted, must be tried in the Crown Court, any decision to caution has to be taken by the Crown Prosecution Service.  It may seem surprising, shocking even, that offenders who admit guilt for offences of manslaughter, rape or  robbery could even be considered for what Grayling calls a slap on the wrist.  But there may be rare occasions in which such an apparently unthinkable decision could be the right one.  Only five months ago, Grayling’s junior minister   told parliament that “ there will always be exceptional cases in which a prosecution for what appears to be a relatively serious offence is not in the public or the victim's interest and that we should not  remove police officer discretion.” That is now exactly what the government is proposing to do.

Their proposal appears to be the result of a review of cautions launched in April which reported to ministers in the Summer and whose results are to be shared not with parliament but the Conservative party conference.  

Of course Grayling is right that the public have a right to expect that people who commit serious crimes should be brought before a court, but we also have a right to see the detailed results of his review.  There seems some confusion about the numbers of cases which are involved each year. The Press Association reported that “last year, 5,084 simple cautions were issued for the most serious crimes – those that would automatically be heard in a crown court if they went to trial. These included 962 for possession of knives, 1,543 for other weapons and 54 for supplying or offering to supply class-A drugs.”. But possession of knives and offensive weapons is not a crime that always goes to the Crown Court.

We also need to know what analysis has been made of the likely consequences of this policy change. In some at least of these unusual cases where cautions are given for a very serious crime, prosecution may prove impossible and conviction unlikely.   The result may in some cases  be to exchange the  slap on the wrist with its accompanying criminal record,  for no action at all.    

Young Adult Offenders- Time to Reverse Years of Neglect

It’s not often that Russia provides lessons on prison reform but earlier this year the Federal Penitentiary Service proposed that the age at which teenage offenders must be transferred to adult penal colonies should be deferred from 19 to 25 years old. Depending on maturity and behaviour, young adults will be able to stay in juvenile correctional facilities where they will be protected from the worst risks of the adult system and can benefit from the educational regime on offer.

Contrast this with the direction of travel in England and Wales where increasingly young adults are being held alongside older inmates in establishments that combine the functions of a specialist Young Offender Institution (YOI) and adult prison. It is sometimes claimed that adults can have a positive influence on the behaviour of younger prisoners. It is certainly true that many establishments which exclusively house young offenders struggle to keep violence under control and to deliver the educational approach they are supposed to. The Prison Inspectorate’s scathing report on Feltham B earlier this year questioned the viability of it being set aside for just young adult prisoners.

But does the answer really lie in integrated establishments? Earlier this week the Independent Monitoring Board (IMB) at Portland in Dorset reported serious concerns about mixing young offenders and adult prisoners.   They reported a dramatic increase in drug finds and a rise in substance trading, debt, bullying and pressure on susceptible prisoners which made the facility much less safe. The IMB suggested that a clear physical separation of young people and adults on the site would be an improvement.

A new report I've written for the Transition to Adulthood Alliance looks at how best to deal with this challenging age group in a prison setting.  Focussing on the arrangements in England and Wales where the government is considering the future of the young adult custodial estate, the report draws on lessons from Europe.

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.”  This is a starling admission and the nub of the problem.  Wherever they are held , young adults require  regimes and levels of care and intervention which respond to their distinctive and developing needs.   

This will be particularly true in the re-designated regional resettlement  prisons which will prepare prisoners for release. As with the Transforming Rehabilitation Proposals as a whole, without a specific focus on the young adult age group, they will continue to be a neglected group. 

What would a Labour Government do about Police and Crime Commissioners?

I learned at least two interesting things on a twelve hour tour of crime and justice events at the Labour Party fringe yesterday.  First, it was Brighton itself that was the scene of a corruption scandal in the early 1960s that led to the system of police accountability which was in place until November last year. Improper relations between the local police and organised crime in the town (and specifically the racecourse) exposed the weakness of the existing Watch Committees.  Police Authorities were created in the 1964 Police Act and stayed in place for almost fifty years.  

The second fact is that Labour has as yet no idea what to do with the Police and Crime Commissioners should they form a government in May 2015.  Those of the thirteen Labour PCC’s who went to the seaside, might have been a bit miffed that their electoral success was barely mentioned, let alone celebrated by a parade around the Conference Hall. Perhaps that’s not surprising if they are going to be headed for the knackers’ yard.    In her speech  (as drafted anyway) Shadow home secretary Yvette Cooper mentioned PCC’s only by including the poor turnout and cost of the PCC polls in a list of Coalition flops.  

The PCC’s future appears to hang on Lord Stevens Commission which reports next month. Without being drawn on what it might say, Shadow Policing Minister David Hansen helpfully laid out the options at a Policy Exchange Fringe meeting. Option A is the status quo- to keep PCC’s with perhaps a few tweaks. Option B is to amend the PCC function by for example strengthening the role of the Policing Panels which keep them in check and strengthening the relationship with local authorities.  Option C is ....I expected David Hansen to say to scrap them - but no- Option C is to expand them into the kind of local criminal justice Tsar role proposed by Reform and Policy exchange in recent reports. (It turned out that Option B may actually be to amend them out of existence but given he was sharing the platform with two PCC’s , Hansen was  being diplomatic.)

The two PCC’s , from Greater Manchester  and Bedfordshire were understandably enthusiastic about their role although Tony Lloyd when an MP had voted against their creation. Each seemed to be doing interesting work with partners – whether in Tony’s case  talking to the fire service about checking  home security as well as smoke alarms or encouraging better prison education ; or in the case of Olly Martins developing a Board to reduce demand on the criminal justice system , and looking to use electronic tagging much more innovatively.  They were critical of the old Police Authority system and their PCC colleague in the West Midlands who six months in wanted his post scrapped in favour of more local systems of accountability .

They were critical too of the way the Transforming Rehabilitation changes might lay waste to important local partnership work with persistent offenders. 

At a later Reform meeting Shadow Justice Minister Jenny Chapman said she thought that PCC’s should be much more heavily involved in the TR arrangements. She made it clear that if contracts have not been signed before the election, Labour would keep Probation Trusts but certainly not leave them be.   Perhaps combining trusts and PCC’s could a viable model of one nation policing and justice?

A sad day for probation and for policy-making

19.9 is a sad day for the Probation service but arguably just as sad a one for our system of governance and public administration. How is it that one here today gone tomorrow politician can effectively dismantle a hundred year old public institution without having his plans subjected to any rigorous scrutiny? Partly it’s through sleight of hand. “We’re bringing in the best of the private and the voluntary sectors to reinforce what the public sector does”, Chris Grayling disingenuously wrote on the Conservative Home blog this morning. But it’s partly through failings in our system of checks and balances.

Grayling has not had to pass any new law to sell off the bulk of probation work- although Labour have belatedly questioned whether the provisions of the Offender Management Act do in fact give him the powers he needs. But whether existing provisions intended to drive largely local commissioning can be used instead as a basis for a competition for 21 nationally let regional contracts needs to be tested in front of a judge. So too  the way in which the government is jumping the gun with respect to the  supervision of short term prisoners for which there is as yet no statutory basis; and the way that the  requirements in the current state of the Offender Rehabilitation bill are seemingly  being flouted.

Neither has Grayling had to worry much about whether his plans add up or are deliverable. We know that the Ministry of Justice consider some aspects to be at high risk of failing. As the minister responsible, he could presumably  ignore these departmental concerns.  But what of the Major Projects Authority set up by the Coalition in the Cabinet office at the behest of the Public Accounts Committee to blow the whistle on such risks? Has it given the plans the green light and in particular had the chance to consider the impact of a policy which could give multi million pound contracts to companies being investigated for alleged fraudulent behaviour and potential overcharging on existing criminal justice programmes? What are the odds on the hapless Permanent Secretary of the MoJ being hauled over the coals by Margaret Hodge long after Grayling has moved on to answer for the wastefulness emerging from this  rushed and grandiose scheme.
  
If Grayling has had an easy ride on the legality and structures of his reforms, it’s not been much harder on the penological content. Until, that is, today. His department’s analytical services have published a summary of evidence on reducing re-offending. It reveals that the effectiveness of mentoring – the apparent cornerstone of Grayling’s rehabilitative philosophy- is “mixed/promising”-not exactly a ringing endorsement. What the evidence does show are the key aspects of effective working with offenders, whatever the nature of that work. These are the importance of skilled and trained practitioners, well-sequenced, holistic approaches and the delivery of high quality services and interventions in a joined-up, integrated manner. In my view progress in all of these areas would be much more likely by building on the experience of Probation Trusts and their local partners rather than creating yet another new structure. But at the very least the arguments for and against deserve much more comprehensive and detailed examination than they have so far received.

Why on earth is the DPP getting tough on benefit cheats?

Keir Starmer steps down as Director of Public Prosecutions next month after five years in the job. It seems strange that someone usually thought of as a liberal and who according to the Attorney General brought humanity to his role should bow out by introducing a crackdown on benefit cheats.  

His period in office has after all been marked by a growing unease about how the criminal law operates not at the bottom of society but at the top.  The apparently random nature of prosecutions of MP’s following the expenses scandal and the almost total absence of criminal sanctions for financial abuses   might have prompted Starmer to propose it was a time for a tougher stance on white collar crime. The importance he attaches of the cost of the crime to the nation would more reasonably lead him to focus on tax fraud which costs the UK seven times as much as benefit fraud.  But for whatever reason he seems to have turned his fire on claimants.   The Prime Minister warmly welcomed the announcement so Starmer presumably did his own prospects no harm.

His line may not find so much favour with his colleagues on the Sentencing Council whose role he seems to be usurping or ministers who are going round the country telling magistrates to deal with more cases themselves rather than send them to the Crown Court. But the troubling question is on what basis Mr Starmer took his decision. Was there any new research upon which he based his proposal?  Or consultation about it? Or an impact assessment of the extra costs involved? If so, he should publish this supporting material. Otherwise it looks mean spirited, self- serving and unworthy of the post.

Are we too late to save Probation?

Saturday’s Guardian includes a review of a 500 page study of “the most egregious blunders committed by British Governments over the last three decades”.  There are many, myself included, who believe that the next edition- there will be a continuous need for updating- will include a section on Transforming Rehabilitation, aka selling off the Probation service.  There is simply too much which is likely to go wrong with what is an ideologically motivated policy in a politically sensitive area, being implemented in a rushed and untested way. But Governments, as the blunders study says, ignore well informed critics whom they treat as political enemies or defenders of producer interests.  And as we saw last week in respect of Universal Credit, when things do go wrong, risk assessment or not, civil servants can be blamed for implementation failure, whether or not the policy is capable of implementation.

So what can be done at this late stage to halt the headlong rush to disaster? I’ll be reading the blunders book to see if it has any insights. In the meantime a Probation blogger has made a useful list of what members of the service should do to save it.

http://poofficer.blogspot.co.uk/2013/09/how-to-save-probation.html?spref=tw

In addition , if they have not been done already, Probation organisations  need to :

a)      Get legal advice on whether what the government is doing is watertight.

TR relies on the Offender Management Act 2007 for the powers to contract out Probation services. Are there any elements of that Act that need to be amended to fit the TR agenda and if so are they all in the Offender Rehabilitation Bill? Even if they are, that Bill is not yet law. Should the government not have to wait until it is law before letting any contracts or incurring costs on doing the preliminary work? If they seek to rely in any way on the Bill as it stands to support their case for moving the agenda forward, then thanks to Lord Ramsbotham , they are stuck with the requirement that “no alteration or reform may be made to the structure of the probation service unless the proposals have been laid before, and approved by resolution of, both Houses of Parliament”.  

b)      Press for urgent Parliamentary scrutiny of the proposals.   The Justice Committee has been very disappointing in its failure to ask the Government about either the rationale for or consequences of such a wholesale reorganisation of a key service. It should hold an urgent meeting – why not this week-, particularly in the light of the G4S/SERCO investigations and their implications for outsourcing, the risks to the policy outlined in the leaked  register and the frankly unreliable cost assumptions in the government’s plans.

c)       Go for the post –Teather Lib Dems.  The Lib Dems have been silent so far. Maybe they have to pick their fights and this one is too small.  Perhaps Vince Cable likes the idea of   opening up a new market for British business. The government has made much of the alleged economic benefits of new electronic tagging contracts and the North Wales super prison. The Coalition after all is committed to rebalancing the economy in favour of the private sector.  But could calling a halt to TR – perhaps by way of a Task Force as with the NHS- be a way of shoring up some of their support among the members of the party more sympathetic to probation and what it stands for .

Before he entered Parliament in 2001, Chris Grayling worked for Burson Marsteller and declared in the Parliamentary register of interest that he undertook occasional consultancy work for his old employer advising companies on communication with their employees. This he stated was “a core area of my pre-parliamentary professional expertise.” Reports of morale in the probation service fly somewhat in the face of Mr Grayling’s claims.

He made clear that he had no involvement with Burson-Marsteller's public relations business. That may well turn out to be a pity for him as their area of expertise is high profile crisis management.

Return of the Titans?

Chris Grayling has announced his latest plans to rejuvenate the prison system. They include a 2,000 place super prison in Wrexham, a capacity which is way in excess of the numbers from the area locked up at any one time.  Prior to 2010, the Conservatives were amongst the many critics of so-called Titan prisons, proposing in   Prisons with a Purpose that yes, they would sell off old prisons but that these would be replaced by  building smaller local prisons .

With a population of 670,000 North Wales needs a prison of no more than a thousand. If more progress were being made on the plan in the Coalition agreement to find alternatives for mentally ill and drug addicted offenders, the numbers could be smaller still. Grayling also seems to want to replace the struggling Feltham Young Offenders Institution with another Titan prison for London.

It is understandable that facing huge budget reductions, economies of scale are dominating thinking in the MoJ. But many may turn out to be false economies.

Look at Oakwood, the UK’s biggest cheapest prison with running costs allegedly less than half those of comparable jails. We await the Inspectors report of their visit in June but the local independent monitoring board have already described how resource constraints impact on the prison. The board have concerns about the amount of drugs, hooch and mobile phones that are being found and known to be in the prison. Much of the contraband is thrown over the fence, which is alongside a public highway but budgetary restraints have limited security cameras and extra netting in the area. Lack of work placements for prisoners is causing unrest with a fifth of prisoners locked back in their cell at 9.am as a result of not having purposeful activity; prisoners have little faith in the complaints system and do not feel that the staff are able to resolve their issues.

The MoJ is right to modernise the prison estate but their overall strategy is wrong.  Grayling wants to make the prison system cheaper not smaller. It should be the other way round. Economies could easily be achieved by reducing the numbers in prison not the standards.  

Comfortably Dumb

All credit to the Howard League for gaining the media coverage they did about the extent of prison overcrowding in England and Wales.  It’s not really news- the annual report of the National Offender Management Service published in June revealed that 23% of prisoners were held in overcrowded accommodation across the prison system in 2012-13 and indeed NOMS claimed a degree of improvement in the numbers compared to the previous year. But amidst all the talk of rehabilitation revolutions and working prisons, it is all too easy to forget about the dismal basic living conditions which shape the daily experience of many prisoners.

The annual report of the Prison Inspectorate last year noted that many cells in the prison estate were too small and cramped, and not only in the older prisons. But by and large in prisons there is “too great a degree of tolerance of poor standards and of risk” to borrow the phrase used by Robert Francis to explain why numerous warning signs did not alert the health system to the emerging disaster in Mid Staffordshire.

More worrying perhaps is the complacent response by the Prison Minister who justifies overcrowding because “prison is not somewhere that anyone should be comfortable about going back to.” Earlier in the year his boss the Justice Secretary talked in similar vein about making prisons more Spartan.

In Sparta, boys were fed just the right amount for them never to become sluggish through being too full, while also giving them a taste of what it is not to have enough.  The Spartans might have been impressed by the three young offender establishments where a couple of years ago Inspectors found that external nutritionists had been consulted but young men said they frequently felt hungry.

Notions of less eligibility are bound to come to the fore in times of economic hardship and the Ministry of Justice has daunting economies to make. But reducing standards in prisons is not the way to make them. Reducing the number of people in prisons is.