Old , New, Borrowed or Blue: What kind of penal policy can we expect from Labour in 2014?

2014, the last year before the general election, will see political parties developing their policies on, amongst many other matters, criminal justice. What will the Labour party come up with? Will they revert to an old Labour position, concerned as in their 1992 manifesto, to improve prison conditions, promote non-custodial sentences for non-violent crimes and take steps to eradicate the discrimination in sentencing policy which particularly affects women and ethnic minority offenders? Or will it be the tough on crime approach adopted by new Labour which saw prison numbers leap from 61,000 when they entered office in 1997 to 85,000 thirteen years later? 

A glance at their 2010 manifesto, drafted by current leader Ed Miliband, shows a compromise between the two approaches .On the one hand there are commitments to expand community payback for criminals who don’t go to prison, to increase alcohol treatment places and introduce a Restorative Justice Act to ensure its availability wherever victims approve it. On the other hand, the manifesto promised to create 94,000 prison places by 2014, a number way in excess of the present prison population.

Denied by the electorate the opportunity to implement these measures, early signs were that as leader of the opposition Miliband wanted to break from the immediate past and support Ken Clarke’s more moderate approach to penal policy. But he could not pass up the opportunity to savage Clarke’s plans for greater sentence discounts for early guilty pleas and since then Labour’s attitude to punishment has been ambivalent.

The party has never accepted, for example, that the indeterminate sentence of imprisonment for public protection (IPP) was an unjust folly and indeed seem unsure how far they dare stray from the Howard /Straw doctrine favouring the incapacitation of both dangerous and persistent offenders. With Straw standing down as an MP and his successor David Blunkett at least somewhat repentant about his shocking tenure at the Home Office, there is perhaps a chance for Miliband and Sadiq Khan to escape the historic influence of these big beasts and chart their own course on sentencing policy.

As for the Coalitions’ Probation reforms, the current leadership is equally compromised by the past. While The Independent may have reported that Khan would rip up contracts with private companies put before him to sign, he will have little choice but to honour those already in place. Straw had to do so in respect of private prisons despite his description of them, when in opposition, as morally repugnant. Khan, by contrast, is on record as basing his policy   on what works, rather than dogma, and claiming that the nine new private sector prisons provided by the Labour government have played a successful role in the prison system.  Even the spectacular failures of G4S and Serco seem unlikely to shift Labour’s fundamentally blue approach to private providers.

There are however three big ideas that Labour would do well to borrow as they put their manifesto plans together. The first would be to apply more thoroughly models of Justice Reinvestment which would see responsibility for the costs of imprisonment move from Whitehall to the local agencies which produce the supply of prisoners. Creating incentives for local partnerships to invest in prevention and reintegration would shift the centre of gravity away from unproductive use of prison towards more effective community based measures.

The second might see the largely successful work of the Youth Justice Board, created by new labour in 1998, extended to the next age group up- 18-21 year olds.

The third would adopt a similar approach to women; a separate Women’s Justice Board needs to be established to drive the hitherto piecemeal and uncoordinated efforts to establish an appropriate system for women in conflict with the law.

In the run up to the 1997 election a considerable amount of policy development was undertaken by Labour on criminal justice- largely on youth justice but also on community safety and prisons. What emerged may not have been universally welcomed, but the result was a relatively clear idea not only of what needed to be done but how. A similar project is surely required in 2014.   

2013 Back to the Future in Penal Policy

2013 will probably be remembered as the defining year for the coalition’s penal policy. Kenneth Clarke’s rejection of policies that “endlessly and irresponsibly inflate prison numbers for their own sake” has given way to Chris Grayling’s desire to   “create a fairer criminal justice system where … those who break the law are more likely to go to prison for longer”.  Inside prisons, the laudable ends of the rehabilitation revolution are proving increasingly undeliverable in a climate of severe cuts and harsher regimes. The wholesale reorganisation of community supervision looks overambitious, poorly conceived and overshadowed by a seemingly never-ending string of wrongdoing by the private sector.

In a number of areas of its penal policy, the Coalition government is looking to implement and extend approaches which have been developed and then discarded by the previous Labour administration. Controversial plans to outsource most of probation work were originally proposed back in 2003 and in large part rely on unimplemented provisions of Labour’s Offender Management Act 2007. The recently announced proposal to scrap separate Young Offender Institutions (YOIs) for the 18-21 year old age group and instead to place young adults in the wider prison system, was recommended back in 2007 but the Government then considered the time not right to proceed.   The decision to embark on the construction of a  “super” prison in North Wales for 2,000 prisoners and to consider a similar size establishment on the site of Feltham YOI in West London mark a return to the Titan prison concept also proposed in 2007 but abandoned two years later. All three policies have attracted almost universal condemnation from professional and academic commentators which perhaps makes it all the more striking that each has to a large extent and at different times  been supported by all three main parties.

It’s perhaps most surprising that the Lib Dems, in recent times the most inclined of the three  to champion penal reform , have signed up so willingly to such risky and questionable policies. Perhaps that will change with the arrival of Simon Hughes at the MoJ. Hughes urged Labour ministers back in 2007 to bring prison numbers down and more recently sat on the Joint Human Rights Committee whose report on the Offender Rehabilitation Bill welcomed the opportunity for the fuller consideration of changes to the probation service introduced by Lord Ramsbotham’s amendment.  Hughes’s appointment may be too little too late to hold up the sell- off of probation but he should be able to ask some serious questions about Titan prisons and stop the YOI plans in their tracks.    Whether he is able to influence events will be a test of his party’s resolve in this policy area and an indication of whether a liberal agenda on criminal justice will make it into their 2015 manifesto.

Next year will see all three parties shaping the policies with which they will fight the next election.  It seems likely that the Tories will continue to toughen their approach; a group of up and coming MP’s sees a  need to reverse the tide of soft justice, make prisons  tough, unpleasant and uncomfortable places , to ensure that persistent offenders are sentenced for prolonged periods and to privatise all prisons.  

But what about Labour? In the run up to 1997 they developed some big new ideas on crime and disorder, youth justice and drugs.  Serious work went into the development of policy and the infrastructure to deliver it.  I’ll consider what they might focus on this time round in the first blog of 2014.  

Inspectors Give Succour to Grayling’s Grand Folly

Whatever irritation Justice ministers may have felt about the weekend leaking of the risk report on their Transforming Rehabilitation changes , will have given way to delight with today’s inspection findings about the failures of offender management.  Why?  Because the findings can be used to make the case for the radical changes that they want to introduce to the prison and probation system. 

Yes, the findings cast doubt about the Prison Service’s capacity to implement their part of the new strategy designed to reduce reoffending rates, especially for short-term prisoners. But concluding that the National Offender Model is “more complex than many prisoners need and more costly to run than most prisons can afford” will be music to ministers’ ears. It will strengthen their resolve to cut costs and to roll back the frontiers of this little bit of the state. They will feel vindicated in replacing a failed national model with an assortment of arrangements paid for only if they succeed. It will be goodbye to an approach based on research findings and a desire to raise standards across the board. Welcome now to a black box approach in which government can withdraw its interest in finding out and implementing effective practice and leave that to the market instead.

The failings identified by the inspectors are real and need attention but the report does not make the case for throwing the baby out with the bathwater. Prison staff may be insufficiently trained to do the work; there are too few rehabilitation programmes, poor recording and a limited integration of offender assessments into the wider prison experience. But these are capable of fixing through proper resourcing and good management.

The Inspectors may even be right to conclude that the current arrangements should be subject to fundamental review. Where they are wrong is to say that this should be taken forward as part of the strategy of implementing Transforming Rehabilitation.  The review is needed before the landscape of offender management is profoundly and irreversibly reconfigured, not when the bulldozers have moved in. 

Reducing Rehabilitation

 When in opposition, the Conservatives were critical of the legislative hyperactivity of new Labour in the criminal justice sphere. But the coalition is proving just as adept at confusing the courts and the public alike about their approach to law and sentencing. Today they are implementing one set of reforms to non- custodial measures which became law in the Crime and Courts Act in April, while legislating for yet more changes in the controversial Offender Rehabilitation Bill.   

We should perhaps be celebrating the coming into force of the provision enabling courts to defer sentence so that offenders can engage in restorative justice activities with the victims of their crime in appropriate cases. But without resources, a much needed option, used very widely on the continent, is likely to remain the exception rather than the rule; we are left to wait for "secretary of state guidance" to see how it will work.

In the meantime, alongside this potentially positive measure, courts will now have to include a punitive element whenever they impose a community sentence on an adult. This means a fine and/or a requirement made for the purpose of punishment. This seems potentially to include any of the existing requirements (which in individual cases might be punitive)  but courts are likely to impose more in the way of unpaid work, curfews and exclusions from certain areas. As the Government themselves acknowledge, there is a risk that some of the rehabilitative benefits of current Community Orders could be lost with adverse implications for the re-offending rate . Tougher requirements may also make compliance more difficult and breach more likely.

Whether the net  result will be more  prisoners depends on two other factors- will the changes persuade sentencers to make community orders today in cases that yesterday were deemed so serious that only custody will do?  Arguably they should do since the punitive weight of the new orders will be greater than they were. The government made a commitment to discuss with the Sentencing Council   whether any changes would be needed to existing sentencing guidelines but nothing seems to have come of it.  It is also possible, though highly unlikely, that tougher community sentences will have some kind of deterrent impact on offenders or the wider public.

So the costs of custody may go up as a result of these changes . But what about the costs of community orders.Some punitive elements are a good deal cheaper than rehabilitative ones.  The government’s strategy is to fund the supervision of short term prisoners by reducing the costs of community orders. As well as achieving this through privatisation,  they may end up doing so, paradoxically by reducing rehabilitation. 

What the Justice Committee should ask about Mr Grayling’s Great Leap Forward

What should the Justice Committee ask the Justice Ministers in their hearing today? The session forms part of the inquiry into Crime Reduction Policies: A Coordinated Approach? But its terms of reference are wide enough to cover almost anything. Over the last year, Mr Grayling has embarked on a twin approach of radically cutting costs and imposing a political ideology, making him something of a cross between Chairman Mao and Ebenezer Scrooge. As befits the season, he will be bringing Bob Cratchit with him to Parliament today. 

On prisons, key questions the Committee might like to know:
a)    What has happened to the proposals for transforming youth custody for under 18’s which promised bold and imaginative ideas for change? Is it true that the Treasury is refusing to fund them?
b) Despite no announcements on the juvenile secure estate, the Government is proposing to scrap separate facilities for young adults. Do Ministers seriously think that greater protection and better regimes for this age group can be provided in the wider prison estate and if so how?
c) Do Ministers  consider that the well documented problems at  privately run HMP Oakwood are teething problems and that the unit costs of £13,000 per prisoner place can provide a benchmark for the rest of the service?  Or is it true that G4S puts in extra resources of its own to run the establishment safely.
On Probation, the committee might have a further go at finding out more details about :
d)   the cost assumptions underlying the new system that will enable  Ministers to fund the supervision  of short term prisoners on top of existing work and what qualifications will be required of staff involved in both the new and existing supervision
e) whether ministers are confident in the ability and propriety of private sector providers in the light of concerns about existing contract performance and what extra costs will be needed to supervise and monitor future contracts in the light of the failures to do so adequately in the past

f) What if any discussions they have had with the judiciary about their plans to outsource the probation service’s work?
There are many more detailed issues about the progress of Mr Grayling’s seemingly uninterrupted revolution. Whether today’s discussion of his affairs will turn him from miser to philanthropist remains to be seen.

Radical or Radial? Why new technology is necessary but not sufficient for prison reform

Europe’s prison chiefs took a break from their annual conference last week to visit Belgium’s newest prison. Beveren, near Antwerp is due to receive the first of its 312 prisoners in February 2014. Much of what awaits them will be very different from the country’s overcrowded and understaffed prisons, criticised over the years by the Committee for the Prevention of Torture. As in the UK, Belgium’s prison population has almost doubled in the last twenty years, with the  task of the prison service  made harder by a series of strikes by staff and the complex needs of a  population almost half of whom are foreign nationals.

Beveren is one of seven new establishments planned to provide modern and humane infrastructure which aims to make a prisoner’s life as normal as possible. Key to the vision is an innovative Prison Cloud system which will allow each prisoner access to  a computer in their cell- to make phone calls, order items from the prison shop , undertake e learning courses and make appointments.  They will be able to rent a movie from a library of 30,000 as well as watch tv and pay for premium channels.  While the IT system will initially be available 24/7, individual arrangements can be made for each prisoner, depending on risk, need and behaviour. Prisoners will be expected to work during the day, participate in education and sports and then “go home “to their cell where they can make use of technological opportunities, albeit in a more limited way than would be possible  outside.

Given the radical nature of the Cloud, it is perhaps surprising that much else of the prison seems so conventional. The living units have been constructed in a star shaped form with three storey wings radiating from a central control area.  There are very small kitchens on each wing but we saw little in the way of space for therapeutic groups, or psychological counselling. Association will take place in a large communal area or in walking yards which will be overlain with cables to prevent helicopter assisted escapes.  Movement to workshops or the gym will be through long poorly lit corridors.

This so-called Ducpetiaux model dates back to the 1830’s when Belgium’s first prison inspector drew inspiration from visits to Pentonville to endorse an approach to imprisonment based on cellular confinement in order to foster penitence and encourage rehabilitation.  The Quaker philosophy may have  long since disappeared but its institutional form remains a powerful force on prison design.

How the PAC turned into a Pussycat with Serco and G4S

A staple of the BBC Parliament Channel is Margaret Hodge and her Public Accounts Committee skewering hapless mandarins or tax-dodging tycoons. Whether interrogating civil servants about their hopeless budgeting or BBC top brass about their perks, Mrs Hodge has proved a fearless and ferocious champion of the taxpayer.

Until that is today when the top people from G4S and Serco were among those who  turned up in Committee room 15. Judging by the bits I saw, the PAC had turned into a pussycat.    True there was a lot of mea culpa by the private companies; but having established that they had acted in ways which were by common consent totally unethical and managerially incompetent, the Committee seemed to accept without question that everything was now fixed.

They accepted SERCO’s contention that a Price Waterhouse Coopers report on the Cornwall Out of Hours scandal was inaccurate on various facts. They accepted the companies’ word that overcharging on tagging could never happen again; that they would open up their accounts; that they would answer FOI requests; and never pray in aid commercial in confidence.    They all had a jolly good laugh at the end about whether the CEO’s had been coached for the hearing. Time to move on.

One of the members let the cat out of the bag when he said that all the parties want public services to be outsourced. The argument is over. There appears to be no proper examination of the merits of the policy. The PAC would say that policy is not their remit. But their job is to look at economy, effectiveness and efficiency. They fell down on the job today.

Daft and Monopolistic Privatisation: Clegg's 2006 Verdict on Probation Outsourcing Still Holds True

Today’s news bulletins report on Liberal democrat leader Nick Clegg’s plans to distance himself from aspects of the Government’s Free Schools policy. It also emerges that he sacked Home Office Minister Jeremy Browne for failing to alert him to the deeply illiberal Go Home Vans targeting illegal immigrants. Perhaps these are signs that the junior coalition partner is prepared to stand up to some of the more egregious Tory policies. If it is, then Clegg should take a careful look at what is going on in the Ministry of Justice.  Of course the Coalition Agreement promised “a ‘rehabilitation revolution’ that will  pay  independent providers  to reduce re-offending,  paid  for by   the  savings this   new  approach will generate within the criminal justice  system.” But it said nothing about the wholesale destruction of the Probation service which now beckons.

It’s true that six months ago Clegg spoke at NACRO about wanting “to see something that takes and builds on the best from the public sector, the best from the private sector and the best from the voluntary sector to break the cycle of crime for good.” That is why he said “we are reorganising the Probation Service, so that the public, voluntary and private sectors can work more flexibly and effectively side by side.”  But has Clegg really grasped the cataclysmic nature of this so called reorganisation?

He might well have been perfectly comfortable, as many were, with Kenneth Clarke’s original proposals to reform Probation. While extending competition, the core propositions, as Clarke put it, were   a stronger role for public sector Probation trusts to commission services to meet local need and circumstances. “Trusts” the Consultation paper said, are best placed to work with courts and with local partners to design and commission services jointly.” Responses to the Consultation showed general support for devolving commissioning responsibility and budgets to Trusts, There was widespread support for local partnerships, between Trusts, police and local authorities.

One would expect Clegg to be considerably less comfortable with Chris Grayling’s altogether more reckless and centralising  approach which is to do away with the Trusts altogether.

After all, the Lib Dems voted against the Second Reading of the Offender Management Bill which Grayling relies on for the powers he needs to sell off Probation. In the Second Reading debate in December 2006 Clegg described the Bill as a highly disruptive distraction from the real challenges in reducing re-offending. “By chopping and changing the organisation of the probation service yet again, the Government are in danger of ignoring the bigger issues at stake, which go beyond the managerial fiddling with the service.”

Seven years on, Clegg might argue that the government of which he’s a part has indeed gone beyond managerial fiddling into whole system redesign. But much of his analysis of the measures in the Offender Management Bill carry as much weight now as they did then; not only that “dogma is being attached to the headlong rush to much greater contestability” but that “the constant, almost Maoist, institutional revolution as the probation service struggles to do its work is hardly conducive to raising professional standards”.

Indeed what Clegg said in 2006 applies with even more force to the proposals which he appears now signed up to: “this is daft and monopolistic privatisation, because it is the worst combination of administrative monopoly and centralisation in Whitehall and unaccountable, fragmented, private sector activity at local level. Far from being a blow for a liberal vision of a de-monopolised probation service, it is arrogating new powers to the centre and increasing the monopoly of decision-making power given to the Home Secretary to chop and change the probation service at will.”  This was Clegg's verdict on proposed outsourcing via local Trusts, not on the direct central contracting now in train.

That it is the Justice Secretary rather than the Home Secretary who has taken on these powers makes no difference to Clegg’s key arguments. He thought that the Offender Management Bill risked exacerbating, not curing, the problems of chronic re-offending that we all seem to agree must be tackled urgently. The same is true of the probation plans, and he should say so and call a halt to them.

The Costs of Failure

 Hundreds of practitioners, academics and experts are flocking to London for the first World Congress of Probation which opens today. Probation officers from Albania to Vietnam, Belgium to Uganda will be no doubt keen to learn about the latest developments in the host country- indeed many are taking part in study visits to Probation services before the Conference proper opens.

Many will no doubt be puzzled to discover that the Probation service in England and Wales is in the process of being dismantled.  They may well ask representatives from the home team why a hundred year old public service is being handed over to the private sector. The official line, which Chris Grayling will no doubt give when he speaks at the Congress on Wednesday, is that the government is bringing in the best of the private and the voluntary sectors to reinforce what the public sector does.  But even if they don’t hear the noise from the rally of Probation Officers protesting outside parliament up the road, many participants are likely to work out that there is more to it than that. The question is exactly what?

One of the drivers of the reform is undoubtedly to cut costs, so it is an added irony that a report out today describes the impact of cost cutting in a closely related area- prisons.  Oakwood is the UK’s biggest cheapest prison with running costs allegedly less than half those of comparable jails. It has been put forward as a benchmark for future prisons with assurances that the specification and standards will be just as high as other comparable jails.

Already the local independent monitoring board (IMB) have described how resource constraints have impacted 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 Care Quality Commission (CQC) have reported that the NHS Trust providing healthcare failed to reach five of the six standards it is judged on. Prisoners are able to trade medicines and had to wait three months for routine dental treatment.  When one inmate was being handed medication he was told ‘you’ll get what you’re given’ by a staff member. Today the independent prison inspectorate add their damning criticisms of the prison, classing the jail as poor or inadequate in the areas it looked at,  echoing the findings of the IMB and CQC..  

What are the implications of these findings for the Probation service? First, despite heroic  claims about the efficiency of the private sector and  how costs can be cut through innovative use of technology, reduced spending is likely to bring with it reductions in decency, safety and quality. Second, and more specifically, the privatisation of probation will lead to a potentially catastrophic loss of experienced staff. The Oakwood report found prison staff there were often inexperienced and failed to deal with poor behaviour in an attempt to avoid confrontation.  Inspectors said they were "passive and compliant, almost to the point of collusion". Not surprisingly frustration was common among inmates who said they routinely resorted to the complaints system to address issues. This confirms Cambridge University’s comparative research findings which found  public sector establishments were better than private ones  at ‘getting things done’; a distinct component of respect in prison, according to prisoners. The research also found that in the public sector prisons, officers are confident and knowledgeable, delivering routines that are safer and more reliable than in the private sector.

Safety, reliability, and respect may not sound as significant as innovation but they are as important in probation work as in prisons.The Oakwood report should be a wake up call not only about plans for large scale super prisons but the privatisation of probation too. The Justice Secretary should use his speech at the Congress to call a halt while a proper evaluation of his policies is undertaken.

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.

Governing Through Crime (Commissioners)

Power Down, Policy Exchange’s Report on Police and Crime Commissioners has the sub title “A plan for a cheaper, more effective justice system” but it might as well   have been “We Expand or We Die”.  There are no detailed costings to stand up the cost argument and no real evidence to support the effectiveness claim. Rather it it places PCC’s at the head of a localism crusade to take control of the Whitehall dominated citadels that rule the criminal justice world.  

While  not  going as far as last year’s Reform report which argued that PCC’s should take over the budgets and responsibility for pretty much all of the criminal justice agencies, in one sense it goes further suggesting that in ten years PCC’s might morph into public safety commissioners or even local mayors.  Sooner than that , the report envisages PCC’s as  ministers for the local  criminal justice system with “the political power to set the agenda, hold agencies within his/her purview to account for performance and enact reforms to ensure a more efficient and effective system at the local level.”

There’s much to be said in the arguments for improved coordination, co-terminosity between agencies and pooled budgets. As the Howard League Commission on prisons said in 2010 “the current criminal justice system not only wastes money but it is overly centralised and driven by misleading and often meaningless targets.” It argued that the National Offender Management Service should be broken up and “replaced by an agenda rooted in localism and in engaging with communities to seek meaningful outcomes”.

On the face of it such an agenda could be driven by the PCC’s as Policy Exchange propose. But there are other ways that this could be done. Outside London the democratic mandate, and breadth of competence is simply too thin to carry forward such a wide ranging agenda. Governing through crime is not the best way forward.

An alternative model could build on local authorities, developing perhaps a hybrid body to commission services to prevent crime, implement sanctions and rehabilitate offenders. This is a direction of travel proposed by the Local Government Information Unit in their 2009 report Primary Justice. Such a model would build in incentives to reduce costly and unproductive imprisonment and invest instead in the kind of targeted measures which reduce crime and demand on the criminal justice system.

Such an approach would show that that the answers to crime and public safety lie not with the police but with the social agencies. It is a model that should prove more attractive to the Labour party.

Through the gate to a short sharp shock

Almost everyone who works in criminal justice thinks it daft that short term prisoners get almost no support when released. But many are equally concerned that introducing a breachable requirement to comply with supervision could lead to a swift return inside for many offenders.

That concern was not allayed by Justice Minister Damien Green who chose to emphasise in a speech today that  the government  are  “tackling stubbornly high reoffending rates with proposed new powers for magistrates to impose a ‘short sharp’ two week return to custody for any offender who breaches their new supervision period, following a sentence of less than 12 months in prison.”

He was jumping the gun in that the provisions in the Offender Rehabilitation Bill are still  before Parliament and are not uncontroversial . But his emphasis on the stick of custodial remedies rather than the carrot of through the gate mentoring was unnecessarily punitive and also foolish.

The last government called off the implementation of the similar Custody Plus scheme when they realised the additional prison places which would be needed. Serious questions remain about the affordability of this governments plan. There are the costs of supervising prisoners on release and of imprisoning those who fail to comply. But magistrates are likely to find the clang of the prison gate plus some help on release a highly attractive proposition. The number of short term sentences they impose could easily increase at the expense of community penalties the future supervision of which is mired in uncertainty. Green would have been better advised to emphasise that once breachable supervision is added to a short term prison sentence, its punitive weight is much increased. Courts should be looking to reduce the lengths of the custodial component of these short sentences to reflect the new threat of re-imprisonment which they contain.

Green’s plans for Magistrates to scrutinise police cautions also look to be ill judged. According to ACPO, a full review of how police forces use cautions has been carried out involving the police, the Ministry of the Justice, the Home Office, the Crown Prosecution Service and victims’ organisations. “The review has found that in the vast majority of cases officers are using the guidance available to them, applying cautions appropriately and proportionately and this process is being properly supervised and managed.”  Is a layer of scrutiny therefore needed? Even if it is , should the judicial branch be getting involved in what are administrative decisions by the police? Not without a good deal more thought than has apparently so far been given.

Jail Break: Time to Get Juveniles Out of Prison Service Custody

At the end of June, there were 1,237 children under 18 in custodial establishments in England and Wales, representing a 60% fall over five years and a national total somewhat lower than the number of pupils at Eton College. Two thirds are held in Young Offender Institutions run by the prison service, where recent inspections have found often horrifying levels of violence, inadequate regimes and dismal outcomes. With the government due to set out their plans for the juvenile secure estate, the historically low numbers in custody provide a once in a generation opportunity to end the incarceration of juveniles in prison department establishments.

There are of course juveniles whose liberty needs to be restricted. About one in five of the current population are serving long sentences for grave crimes and many of these will transfer to other establishments at 18. A further fifth are on remand awaiting trial but legislative restrictions and the transfer of costs to local government could see these numbers fall further through the development of better alternatives.

But what of the three fifths of juveniles in custody who are serving a Detention and Training Order (DTO), a fixed term sentence of between four months and two years  served half in custody and half in the community? Many of these are young men – there are only about 50 girls under 18 in custody- whose prospects of giving up crime are hardly helped by a spell behind bars. In prison establishments in particular, unsuitable physical conditions, inappropriate rules and procedures and insufficient staff can combine to do more harm than good.

Some at least of these young people could be supervised on conventional alternative sentences but many -perhaps the majority -will have struggled to comply with the terms of previous orders. For them perhaps a short period in custody is unavoidable- but not for the two months that the DTO requires as a minimum. The period in custody should be measured in days and used  for community based agencies to put together a comprehensive plan of action to deal effectively with the young person’s needs without locking them up. Mostly this will involve a package of support for them (and their families) to get them learning and earning, off drugs and out of gangs.   Sometimes it may involve a specialist residential placement, an option currently permitted under the provisions of the DTO but never in fact applied.

Reshaping the DTO so that very short detention is followed by longer training in the community could perhaps halve the number of custodial places currently required. It would better meet the requirement of the UN Convention on the Rights of the Child that “the arrest, detention or imprisonment of a child   shall be used only as a measure of last resort and for the shortest appropriate period of time”.

 

 

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.