Spurring On Prison Reform

  Earlier this week, Justice Secretary Michael Gove told the House of Commons, not for the first time, that he wanted to see prison governors given more freedom along the lines of Academy Principals or NHS Trust CEO’s. Gove believes that with increased autonomy in a structure of clear accountability, significant improvements can be achieved in the  prison service (whose dire performance was once again indicated by the latest data on deaths,self-harm and assaults).

At the same time a mile or two away, Michael Spurr the Head of the National Offender Management Service was telling the Annual General Meeting of CLINKS (the umbrella organisation for prison charities) just how difficult it was going to be to make Gove’s governor autonomy policy  happen in practice.

In an admirably candid talk, Spurr said he had hoped for a period of consolidation after the substantial changes to prisons and probation wrought by the last government. But Gove’s refreshing reform agenda offered huge opportunities, with 10,000 new prison places in 9 new prisons enabling a new model of imprisonment in which overcrowding and idleness could be, if not eradicated, then much reduced. 

But as for the governor autonomy agenda, Spurr admitted there were many thorny issues to resolve. In a perhaps too candid example, he pondered aloud whether a governor who wanted to introduce overnight family visits would be allowed to do so. A lot of head scratching in Whitehall seems to be going on about where the limits to freedom of action should lie. But don’t bet on conjugal visits surviving the first ministerial briefing or outing in the Daily Mail.

In education, freedom from local authority control has brought with it the ability to depart from the national curriculum, set pay and conditions for staff, change the length of school terms and school days. Along with greater control over budgets principals have responsibility for their buildings and their management.  Could prison governors be given these kind of powers?

Take the analogy with the national curriculum. Would Gove’s brave new world allow governors to disapply Prison service orders or instructions if they so wish? As things stand, even private prisons which seem to be Gove’s model, can’t do that. A recent study of competition illustrated the weight of prescription by showing 15 pages of a contract specifying how prisoner can use their own cash to buy goods.  Are these to be ripped up and if so how many of the pages? Will newly empowered governors be able to opt out of the ACCT suicide prevention scheme or relax security procedures? Or decide to dispense with accredited offending behaviour programmes in favour of activities of their own liking?  These standards are there for a reason. They reflect the fact that prisoners are in a uniquely vulnerable position and both they and society have the right to expect they are cared for in an ethical and principled way.

 Presumably some standards will be required to be met (and inspected) in the new regime, but in prisons unlike schools the price of failure is counted not in not poor exam grades but escapes, reoffending and human rights violations.  If things go wrong, ministers will not be able to stand idly by. Spurr took some flak yesterday for his honest appraisal of the way the Transforming Rehabilitation reforms have weakened the ability of the centre to intervene in probation services now contracted out and paid by results. CRC’s who have failed to engage with third sector providers, whatever promises they may have made, look untouchable. Will that be the case for Gove’s Governors in his nine new prisons?

In existing jails, education, health and, since last year, resettlement activities are all outsourced. Prison Governors haven’t had a say in how those contracts have been let. Of course they could do so in future. There’s a lot to be said for concentrating commissioning responsibility in the hands of the governor but unless Gove can buy out existing contracts he’s stuck with the existing choreography for several years to come in the bulk of his system.  With Wrexham opening next year and the new facilities scheduled during the lifetime of the parliament there are opportunities for the new model to be introduced. But by the time it starts to happen, there’s a fair chance Gove will be out of government and by the time it’s finished his party may be out of power.      

But what his scheme will enable in the short term  is a bonfire of headquarters, with no longer a need for policy development, learning lessons, monitoring outcomes or system wide planning. Devolving power will provide a pretext for big cuts at the centre and the eventual disappearance of NOMS.  Gove said today that his reversal of Grayling’s legal aid cuts had been made possible in part by   economies he has made elsewhere in his department. This is probably one of them.  

Avoiding Long Sentences

 Yesterday the Sentencing Council published an assessment of the impact which its Guideline on Burglary has had on sentencing trends since it came into force in 2012.  I came across it by chance – it doesn’t appear on the “Latest from the Sentencing Council” bit on their homepage, but is tucked away under Publications.

The Council may not have wished to draw attention to the study because on the face of it, the results raise embarrassing questions about the value of guidelines . The Burglary Guideline was supposed to increase consistency and "regularise practice", rather than "substantially altering it”.  The research found that in fact there has been a shift towards more severe sentences for all kinds of burglary and for non- domestic cases “a steep increase” with average custodial sentence lengths going up 13% between 2011 and 2014.

Much of the report looks to attribute the changes to factors other than the Guidelines such as pre-existing upward trends or the effect of the 2011 riots in London and other cities. The report argues for more research to identify why there has been a change contrary to the resource assessment – the exercise the Council is required to undertake to estimate the impact of their guidelines on the need for prison and probation places. In the case of burglary no change in disposal types or length was anticipated in the final resource assessment published in 2011.

Something seems to have gone seriously awry, with judges seemingly either misinterpreting the Guideline or ignoring it. The Crown Court Sentencing Study published last year found that in 97% of cases Judges sentenced within the (generously wide) prescribed range for the various burglary offences; but for sentences of “domestic burglary” and “non-domestic burglary” virtually all departures from the guidelines were above the offence range. The latest study findings make it look plausible that in addition,  some at least of the Courts which have sentenced within the ranges have nevertheless upped the going rate in a way that was neither intended nor predicted. 

Whatever the reason, sentence inflation has certainly happened and as the resource assessment document pointed out in 2011 “since sentencing for burglary costs around £260m a year, small changes to sentencing practice have the potential to have substantial resource implications”. These cannot have been welcome to the cash strapped Ministry of Justice who, according to the Permanent Secretary, have had to introduce unusual and controversial measures last year to avert a several hundred thousand pound overspend.

But the research points to a brutal truth that the ministry and its boss must face. It was put eloquently in the House of Lords yesterday by Lord Dholakia who argued that “sentencing guidelines should scale down the number and length of prison sentences except for the most serious crimes”; and that the Government should legislate to make sentencing guidelines take account of the capacity of the prison system.  Unless they take those kind of measures, Mr Gove’s warm words on prison reform will be destined to remain just that.

What to do about G4S?

I couldn’t watch last night’s Panorama investigation of Medway Secure Training Centre (STC). I’m working abroad this week, ironically at a juvenile detention centre where G4S were relieved of their contract in 2010. But I have seen excerpts and read enough about the programme to recognise that if this is not quite youth justice’s Mid Staffs moment , it is at least its equivalent of Winterbourne View. This was the private hospital near Bristol where an undercover Panorama investigation in 2011 revealed criminal abuse by staff of patients with learning disabilities.

It will be interesting to see whether what  emerged following  that programme five years ago are mirrored at Medway; residents too far from home, high rates of physical interventions , particularly restraint; agencies failing to pick up on key warning signs; management failure and a closed and punitive culture. Winterbourne view was closed within a month and major changes resulted, both in the treatment of people with severe learning disabilities (for example reviewing the appropriateness of placements in hospital) and in the regulation of providers (with stronger accountability and corporate responsibility for owners and directors of private hospitals and care homes and tighter inspection). Could we see analogous change in youth justice?

I have a particular interest in STC’s because, as some people won’t let me forget, I had a hand in their invention.  Working on secondment in the Home Office in the early 1990’s, I found myself advising ministers about how to deal with what they saw as a  national crisis caused by  persistent young offenders, which was made much more acute by the horrific murder of James Bulger by two ten year old boys. Despite my and others advice, Kenneth Clarke was determined not only to create new closed institutions but to open up their running to the private sector. I well remember his junior minister Michael Jack, during visits we made to existing local authority secure units and Youth Treatment Centres (after the STC's had been announced) wishing that the decision to create something new had not been taken so precipitately. Jack seemed to echo then shadow Home Secretary Tony Blair’s view that if new secure places were indeed needed, it was insane not to expand existing provision.

I remember too attending a meeting at G4S’s then headquarters in Broadway where they explained their ideas for the new STC’s. They suggested that professionally trained and qualified staff were not necessary as it was simply a question of developing the correct procedures and getting staff to follow them. Staff thinking for themselves was seen as undesirable.  If this was the approach they in fact applied when they won the first contract, it was to be exposed as grossly naïve when Medway faced all sorts of management problems when it finally opened in 1998.

What does the current scandal expose?  For the second time in two years G4S has been shown unable to care for vulnerable and challenging young people in an acceptable way. There surely comes a point when they or the government must recognise that this is institutional failure. Unfortunately new contracts have recently been signed and the company will continue to run Medway and Oakhill STC’s while handing over Rainsbrook to new operators in May. Assuming the contracts are not going to be rescinded, how can the safety and wellbeing of children be guaranteed?

First, at the very least the government need to look at the way G4S recruit, train, supervise and support their staff and insist on change if it is found necessary.  If there is a cost to the company, they should see it as a form of payment by results. The result of their current approach has been abusive and they should pay to fix it. The macro corporate renewal that was required after the tagging overbilling scandal needs to be replicated in their STC operation.

Second while G4S were at best foolish in appearing to shift the blame on other agencies for failing to spot the abuse before Panorama, the system of monitoring inspection and advocacy has undoubtedly failed. If the YJB’s days are already numbered, this latest debacle will almost certainly usher their demise when Charlie Taylor reports this summer. Funds should be diverted to enhance the child protection and advocacy systems within the STC’s.

Third, a much more thoroughgoing and independent review of custodial care of juveniles should be ordered, ideally led by a judge or lawyer. Mr Taylor’s youth justice review absurdly excludes issues about the age of criminal responsibility and the powers of courts.   Sir Martin Narey’s review of residential care is unclear in its scope and anyway compromised by his relationship with G4S and attempt to undermine the independent findings of inspectorates at Rainsbrook last year. Michael Gove is right that the best way to prevent scandals like this is to prevent children ending up in custody. He needs to ask how that can be achieved.

Unduly Concerned

Just as 2015 started with an unnecessary and potentially counterproductive idea for criminal justice reform – Lord Leveson’s suggestion that courts ask for fewer probation reports before imposing sentence- so has 2016. This year it’s the Attorney General arguing that his power to find sentences unduly lenient should be extended to a wider range of offences, notwithstanding the fact that his office cannot cope with the workload generated by the existing scheme.  To help with this, a pilot programme has  been announced to allow a wider range of prosecutors to conduct appeals into unduly lenient sentences on behalf of the Government- details of the costs involved in this have not been given.

Under the existing scheme, the number of sentences considered by the Attorney General’s Office has increased by 97% since 2010, up from 342 sentences to 674 in 2014. During the same period, referrals of cases found unduly lenient to the Court of Appeal rose 35%, from 90 to 122.  It’s not surprising that the success rate of complaints has fallen. Anyone at all can ask for a sentence to be reviewed - they don’t have to be involved in the case and only one person needs to ask. A quick email from any member of the public can trigger a review provided it’s sent within 28 days.

It’s true that the Conservative manifesto contained a proposal to enable a wider range of sentences to be challenged “to tackle those cases where judges get it wrong”. But with the resource pressures faced by the courts and prisons is this really a priority for the justice system?

Back in 2014, then Attorney-General Dominic Grieve seemed to think not, reminding Parliament that “the principle enunciated originally was that only a small number of cases in specified and very serious offences would ever be referred”. Last year his successor seemed much more enthusiastic about tackling anomalies in the kinds of offences which can be reviewed in order to boost public confidence. Today he declared that “It’s vital that the public are able to legally challenge custodial sentences and to make sure offences are being properly punished”.

If anything, there is a case that the Government should be looking to limit the way the scheme operates. Perhaps where the victim of the crime or someone else with a locus in the case has well founded concerns there is a case for review. But the problem with sentencing as a whole is less that it is too lenient and more that it’s too harsh.

 The Sentencing Council’s Crown Court Survey- now disbanded- found that in 2014 in assault and burglary cases, more sentences were above the recommended range than below it. Courts are under a legislative duty to impose a sentence within the offence range specified by sentencing guidelines, unless it is in the interests of justice to depart from this.  The vast majority of cases fall within the range but with burglary 3% of cases were above the range with less than 0.5% below it.

Of course a sentenced offender can appeal and a prosecution right to appeal could be seen to even up the scales.  But as Grieve said “there needs to be finality in sentencing and, of course, if many more cases are referred, that will place burdens both on the Court of Appeal in considering them and on my office in making the assessment”. It’s a burden the system could do without.