A Year in Prisons

A year that opened with David Cameron championing prison reform as a great progressive cause in British politics ended with a record number of deaths, a high profile escape, staff walking out and Tornado teams quelling a series of major disturbances. The first six months saw Michael Gove promising the earth but delivering almost nothing; the second Liz Truss scrambling for funds and ideas to repair the damage inflicted on the prison service by her predecessors.

Her White Paper may not have lived up to its hype, but she quickly recognised that getting more staff onto the landings is a prerequisite for anything more ambitious. Having previously argued that prisons should be tough unpleasant and uncomfortable places, she makes an unlikely reformer but deserves the chance to fix the mess she inherited.

Truss baulked at Charlie Taylor’s extravagant plans to reconfigure youth justice and has so far resisted proposals to reduce the numbers of adults in prison- not surprisingly for a proponent of longer and tougher sentences. Ken Clarke, Nick Clegg and Jacqui Smith joined the list of politicians prescribing radical policies once they cease to have the power to implement them. Their call to halve the prison population received some support from Labour but they have form in calling for - and reneging on - a halt to the arms race on punishment. Michael Howard thinks it gravely irresponsible to slash prison numbers.  But even he says there might be room for modest reform.

Measures beneath the radar are probably the best we can hope for in 2017.The Sentencing Council could play a greater role in stabilising sentence lengths but problem solving courts seem to be on hold. It’s not clear how far the devolution agenda has to run in justice.

Probation could normally be expected to play a greater role in replacing prison but its reckless privatisation has left it struggling to cope with existing work let alone take on more. We will find out early next year if a review leads to contracts being torn up – or more likely tinkered with.

We are due a progress report too, on the 10,000 new prison places due to be built in  9 new prisons by 2020.  Don’t be surprised if these have been delayed. NOMS Chief Michael Spurr told the Justice Committee last month that it will be 2025 at least before prison cells hold only the number of prisoners for which  they were designed.   Prison reform may just about still be a great progressive cause -but it's a long term one. 

The Youth Justice Review : A Plumber responds to an Architect

There’s a lot to be said for the report of Charlie Taylor’s youth justice review, which has finally been published along with the government’s response; and one question. What will actually be done with it?

We learned yesterday that two secure schools will be created but when, where and in place of what remain to be seen. Ironically they are probably the least promising of the review’s recommendations. Despite mountains of evidence about the ineffectiveness of custodial institutions, Taylor has felt obliged to invent yet another species.  Approved schools, Detention Centres, Borstals, Youth Treatment Centres, Young Offender Institutions, and Secure Training Centres have all proved more or less expensive failures. The Coalition’s plan for a Secure College was quickly killed off by Michael Gove before he announced the review.  Do we need another variant?

From what little detail is available, Taylor’s schools seem most likely to resemble what are now known as Secure Children’s Homes (SCH’s) –small therapeutic  establishments , mostly local government run,  necessarily expensive and whose numbers have declined substantially in recent years. The secure schools will be bigger than SCH’s with 60-70 places – probably a mistake- but more promisingly Taylor wants to see more temporary release and lower security levels.  Reversing the decline in the number of SCH’s combined with serious reforms to reduce further the need for under 18’s to be locked up at all looks a better strategy than devising yet another generation of closed institutions . 

To his credit, Taylor does go some way down the demand reduction road, recommending an end to short custodial sentences, fewer remands in custody and young people- children first, offenders second for him– as far as possible kept away from the “tainting” effects of the formal justice system.  The review proposes that children under 16 should only have their liberty restricted exceptionally if they pose a serious risk to the public. On these recommendations the Government response is distinctly cool.

It’s lukewarm on Taylor’s proposed devolution of the costs of custody to local authorities, together with the power to commission the kind of services that children in trouble require. While recognising the need for greater input from health and education, Taylor thinks the mandatory model of Youth Offending Teams (YOTs) may be past its sell by date, inhibiting potentially more effective partnership arrangements. A logical consequence of devolution, that’s still a risky call in a climate of cost cutting. The government seem to recognise that an absence of a statutory duty to run a YOT, and the removal of ring fenced funding may produce not local innovation but the kind of neglect that required the dirigiste reforms of the 1990’s.   The result of this part of the review is…another review. 

The driver of those 1990's reforms, the Youth Justice Board, looks to have survived.  Taylor thought it could be replaced by a Youth Justice Commissioner in the heart of rather at arms- length from the MoJ, with a potential move to the education department. Instead, when it plays a part of the new review of governance, the YJB is unlikely to cast itself as a Christmas voting turkey.  

Taylor’s most radical idea is to have decisions about dealing with children in trouble made not by magistrates in a youth court –though they would continue to decide on matters of guilt and innocence- but by new panels akin to those operating in the Scottish Children’s Hearings system. These would not be mini courts- though some current JP’s could become members alongside others with experience of young people, in particular their education. Panels would draw up, publish and review plans for each child setting out not only their obligations not also those of the agencies responsible for their care and supervision.   The most serious cases would continue to go to the Crown court but with plans drawn up by the panels. 

It’s a bold proposal but moving from a “justice system with some welfare to a welfare system with justice” has proved many steps too far for the MoJ. What would be the biggest change to youth justice since 1969 is going nowhere. There are plenty of worthwhile recommendations which the Government can take forward  - better training for appropriate adults, improved legal advice,  less criminalisation of children in care , streamlined assessment and a limit on criminal records. More staff in YOI’s will be useful too, confirming Liz Truss as less of an architect and more of a plumber.  

Council of Despair?

How can we reduce the number of prisoners in England and Wales?    The government’s view seems to be that the 86,000 men women and children behind bars “is the result of the sentencing approach taken by successive Governments of different colours and there is no way to arbitrarily reduce the prison population”. Behind the scenes, Ministers who are not only responsible for sentencing policy but for the creaking prison and probation services which give effect to it , may be less sanguine. Privately they may well share the view of former Lord Chief Justice Woolf that “with the situation in our prisons today, we cannot afford to have further sentencing inflation.”

If ministers do want to at least limit the growth of prison, they could well ask about the role of the Sentencing Council- the body which for the last six years has been issuing guidelines to courts about the appropriate levels of penalty for particular offences. In a new report for Transform Justice – The Sentencing Council for England and Wales: brake or accelerator on the use of prison? - I look at the impact the Council has had on prison numbers and what more it could do to make sentencing more effective.

It’s true that the prison population has been fairly stable since 2010, but with a 25% fall in the numbers sentenced for serious crimes,  we should really have seen prison numbers go down . The reason they haven’t is that average sentence lengths have gone up for almost all types of crime. While there may be several culprits in all this, the Council has a case to answer. The Council’s own evaluations of the effect of its guidelines on assault and on burglary found that sentencing became more severe than it had expected. Guidelines may have stifled creativity by focussing courts’ attention more on aggravating factors than on aspects of a person’s circumstances which may reduce their culpability and make their sentence capable of being suspended.

The report makes a series of recommendations designed to encourage the Council to take a less conservative approach to its work. It could pay much more attention to the costs and effectiveness of sentences when producing guidelines, for example encouraging courts to go below the usual range if it is in the interests of problem solving or rehabilitation. Guidelines on the distinctive approach to be used when sentencing women, young adults, older offenders and offenders with mental health problems are sorely needed.

The Council – like all arm’s length bodies – should really have been subject to a review by the Government. But it has been exempt because of “its unique role in maintaining the constitutional balance between the executive, legislature, and the judiciary”. The nature of that balance was deeply contested when Lord Carter first proposed a Sentencing Commission back in 2007. MP’s and particularly judges were alarmed that over prescriptive guidelines produced with more than half an eye on the size of the prison population could unreasonably limit judicial discretion. 

Given the current prison crisis, the Transform Justice report argues that it’s time to open up this question again.  The Justice Committee which has previously argued for a much reduced prison population and reinvestment of resources into prevention and rehabilitation, should establish an inquiry into the role of the Council and revisit the desirability of linking guidelines to resources.