Private Troubles and Public Issues

In 2013, a report I co-authored for the World Bank drew attention to the impact of a profit-making dynamic in prisons on a country’s wider political and judicial system. “Prison privatisation has given rise to examples of corruption among politicians, prison officials and even judges in the form of the Kids for Cash scandal in the USA”. 

Fortunately although standards of probity in British public life are generally very high, maintaining them requires equally high levels of transparency about potential conflicts of interest. Just before the election, Parliament’s Public Accounts Committee criticised the Ministry of Justice for mishandling an entirely foreseeable conflict of interest in its appointment of the Chief Inspector of Probation. He is married to the Deputy Managing Director of Sodexo, the business that bid for, and ended up winning, six out of 21 contracts to run Community Rehabilitation Companies.

There has never been a suggestion that the Chief Inspector behaved or would have behaved, improperly but close connections between public bodies and profit making businesses always require close scrutiny, not only because they may lead to impropriety but because they might be seen to run a risk of doing so. Public confidence in many institutions seems at a low ebb. Transparency about links with private sector organisations are particularly important given the recent serious lapses on the part of two private companies involved in the criminal justice system. In the wake of the G4S and Serco overcharging scandal, the PAC found the ethical standards of contractors had been found wanting and " a culture of revenue- and profit-driven performance incentives has too often been misaligned with the needs of the public who fund and depend on these services.” But even when operating properly,directors of private companies must act in the way they consider would be most likely to promote the success of the company, in contrast, say, to civil servants who are required to place the obligations of public service above personal interests.   

It is concern about how things might appear rather than risks of corruption that have alarmed a number of current and former JP’s  about the burgeoning financial relationship between the  Magistrates Association (MA) and a number of private sector  Community Rehabilitation Companies (CRC's).

The MA is a charity operating under Royal Charter which represents the vast majority of the 22,000 JP’s in England and Wales. As part of its income generation strategy, the MA has set up an Education and Research Network to be made up of organisations “working within and around the justice system”. According to the latest issue of The Magistrate Magazine, “we already have five founding affiliate organisations on board”. At least two of these affiliate organisations are CRC's. According to one of the members of the Board who oversees the network, affiliate organisations have contributed up to £10,000 to join. In return they will enjoy the fruits of the research which is commissioned, with any money left over helping to fill a £50,000 gap in the MA’s budget. CRC's and other organisations who want to become Founding Affiliates have until 30th June to apply. 

What’s the problem some might ask? Surely this is simply an entrepreneurial effort to add to the body of knowledge about the workings of the criminal justice system while strengthening one of its key stakeholders. What happens in court and the decision-making of magistrates are relatively under researched areas where new information could be of considerable public benefit.

The problem is not about the work that the Network might produce, although there must be doubt about whether it can both research high quality studies and return much of a profit to the MA. It is rather that the investment by private companies gives an appearance that improper influence might be being sought. CRC's are controversial bodies, the outcome of a highly contested process of privatisation. Labour's election manifesto referred to the reckless privatisation of probation, meaning dangerous offenders are more likely to be monitored by companies with no track record of success, putting public safety at risk. 

The most recent inspection report about the Transforming Rehabilitation changes that created the CRC's found signs of developing tensions with the National Probation Service "as managers considered what they were actually contracted to do and entitled to receive, rather than what they had traditionally done". In this unsettled context, the CRC's will be looking for all the friends they can find.

The Guide to Judicial Conduct advises judges to take care in considering whether, and if so to what extent, their name and title should be associated with an appeal for funds, even for a charitable organisation. “It could amount to an inappropriate use of judicial prestige in support of the organisation and may also be seen as creating a sense of obligation to donors”.  This is something that Lady Justice Hallett who sits on the Network Board will no doubt have considered. The Guidance does make clear that “there will be occasions, for example in the case of charities supporting the work of the Courts, where the objection would not apply”. But the vexed nature of the CRC’s, and the concern which their owners will understandably have to enhance their reputation should argue for caution on the part of the judiciary.

From the Magistrates side, the MA’s activities include the provision of information and advice to magistrates, developing guidance to improve the delivery of justice in the courts and responding to proposals which affect the delivery of justice. They cannot be put in a position where the content of that guidance, information and advice could be seen to be influenced by commercial considerations.

It is interesting that the Senior Presiding Judge has issued guidance about liaison between providers of probation services and sentencers, emphasising that it is the National Probation Service (NPS) who have that responsibility and not the CRC’s. It is not clear whether channelling communication through the remaining public sector part of the probation service is a matter of administrative convenience or of ethical propriety. It is perhaps worth the Magistrates Association considering both dimensions as they move forward with their new initiative.  

Rainsbrook Scandal Requires a Woolf Report on Under 18’s

Today’s inspection report about Rainsbrook Secure Training Centre is a shocker. It has always been the best of the STC’s. Notwithstanding the tragic death of Gareth Myatt in 2004, Inspection reports have generally been positive. Something must have gone very wrong in the last year or two.

What OFSTED and the Prison Inspectors found looks significantly worse than inadequate, the lowest rating on the scale. They report on serious incidents of gross misconduct by staff, (including managers), and degrading treatment of young people. One young person did not receive treatment for a fracture for approximately 15 hours. We are spared details of other “very serious” incidents to protect the confidentiality of the young people concerned.

The way G4S who run the Centre have responded to the criticisms does not augur well. They tweeted that these were isolated incidents and not reflective of a very professional and committed team. This looks a highly complacent response to serious concerns about “the volume of very poor staff behaviour warranting disciplinary measures”. It also ignores the findings of management dysfunction. . Health and operational staff were at odds on procedures for physical restraint – a potentially life threatening matter which must be urgently resolved.  Inspectors also found that clear clinical advice was overruled by non-health qualified senior managers, possible presumably because the health care (along with education) is provided by G4S themselves.

Contracts for the future running of STC’s are in the process of being re-tendered and the chances of continuing G4S involvement has presumably taken a knock. Perhaps the report could prompt new Justice Secretary Michael Gove to halt the process and have a look at the bigger picture.  He could ask, or preferably appoint an independent figure to ask, some searching questions about the kind of secure provision we really need; a Woolf Inquiry for the under 18’s .

Controversial Secure Colleges are waiting in the wings but if the Treasury can be persuaded to stump up the money, there will then be four different types of detention for about 1000 young people. Maybe that’s the system we need. But no one has ever really asked the question.

When the STC’s were first proposed in 1993,  Labour’s Home Affair spokesman , Tony Blair thought them fundamentally wrong because ‘the last thing you want to do with those persistent young offenders is to put them alongside 40 or 50 other persistent young offenders and lock them up for a considerable period of time’.  Moreover it was  ‘insane to set up these new centres at the same time as the local authorities are having to close some of their facilities for disturbed young people in communities throughout the country’. Blair’s government was to continue the insanity. Gove has a chance to end it.

Tough and Unpleasant: New Minister's Views on Prisons

Dominic Raab, new Minister  at the MoJ, is best known for his views on human rights, set out forcefully in his 2009 polemic The Assault on Liberty. Repealing the Human Rights Act will be his main task but his views on penal policy are noteworthy none the less.

In his book, Raab observes that prisoners have benefited more than most from new categories of human rights "foisted on Britain contrary to the wishes of parliament". He appears to think that the executive should have the power to veto the release of criminals on the grounds of public safety and seems unimpressed by judgments allowing prisoners to practice paganism in their cells or have access to fertility treatment. But Raab also argues that “the prison regime has called out for reform for years- to better prepare offenders for release into the outside world.”

Optimism about what that might entail evaporates quickly while reading another book Raab co-authored after the 2010 election, along with (among others)now fellow ministers Liz Truss and Priti Patel.  After The Coalition: A Conservative Agenda for Britain argues that we need to "reverse the tide of soft justice". According to Raab, some judges have declined to jail criminals on human right grounds and punishment in the justice system is too often a dirty word.

There is an unwelcome belief according to Raab that prisoners should be treated in prison in a way that reflects the normal life of freedom that all citizens generally enjoy. He and his colleagues “are not ashamed to say that prisons should be tough, unpleasant and uncomfortable places”. They want persistent offenders sentenced for prolonged periods, praying in aid Howard League research on the ineffectiveness of short prison terms. Raab would also privatise all prisons.

Five years on Raab might take the view that prisons are now sufficiently unpleasant places. But his controversial views surely make the case for some form of pre-appointment scrutiny for would be ministers. The public have a right to know ministers' views about the areas for which they will have responsibilities, direct or indirect, and whether they are suitable candidates. In Raab’s case, I have my doubts.

What's on the cards from Michael Gove?

What will Michael Gove‘s appointment as Justice Secretary mean for the penal system?  As a Times columnist he declared himself a liberal on criminal justice yet favoured the return of the death penalty. Like his predecessor Chris Grayling, he is an ideological and divisive figure. Gove not only fell out spectacularly with the workforce while Education secretary but also with Theresa May, the minister with whom he will now have to work most closely. Restorative justice might well need to be urgently available in Whitehall.

Gove’s controversial record and the contentious nature of his new portfolio raise the question of whether such an appointment should simply be a matter of Prime Ministerial patronage. An American style confirmation hearing before the new Parliament might reassure the public that Gove is a suitable candidate to be Lord Chancellor.

The Tory manifesto commitments will provide Gove’s starting point but it remains to be seen how he moves forward to toughen sentencing, overcome the formidable technical obstacles to replacing the Human Rights act with a British Bill of Rights and introduce the “swift and certain punishment” promised for petty offenders and drug addicts.  There are three areas where something more positive is possible.  

First the Conservative victory means that local Police and Crime Commissioners are here to stay and their role looks set to be enhanced. They could become drivers of Justice Reinvestment initiatives in which criminal justice resources are shifted to the local level with incentives to reduce the unnecessary use of imprisonment. This would satisfy not only the Tory commitment to localism but the need to keep prison numbers under control in the coming years.    

The second policy area concerns women offenders where the manifesto called for greater use of electronic monitoring as an alternative to custody. Gove should instruct the Sentencing Council to draw up separate guidelines for women which mean custody is used as a last resort and for the shortest possible time.

Finally, while these two measures could help to keep the lid on the prison population, something more is needed to address the parlous state of the prison system itself. At Education, Gove  asked Sir Martin Narey to work first to increase the use of adoption and second to revamp social work education. As a former Director General of the Prison Service and NOMS chief Executive, Martin would be well placed to help Gove with his new challenges. He could start by making an honest assessment of the adequacy of the prison budget and whether current funding can provide safe decent and purposeful prisons.  Narey could also be asked to look at the adequacy of staff numbers in the reformed probation services. Further cuts to budgets in either prison or probation are surely unthinkable without assessments of this kind.