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.