Rush to Judgement

 “In order for courts to make greater use of probation, they must know about what non- custodial sentences entail and have confidence that it will provide an adequate level of supervision”.  That’s one of my conclusions in a review of a newly formed Probation system in Eastern Europe from earlier this year. Little did I think that it’s something that may now need saying about England and Wales.

Last week a London magistrate told an event on community sentences that she and her colleagues knew virtually nothing about what such sentences entail. This week the Deputy Chair of the Magistrates Association admitted that the demands of speedy justice increasingly mean that JPs have inadequate information about the people they sentence. A senior CRC manager put it more bluntly to inspectors in a report published today: “The push towards same-day sentencing has been devastating. It’s all about getting a report and offender ‘done on the day’, not about getting the right outcome.”

The West Mercia inspection report paints a highly dysfunctional picture. Only half of eligible and suitable offenders get sentenced to programmes most likely to reduce their re-offending. Some of those the courts do require to participate are ineligible or unsuitable. While the courts seem to rush to judgment when sentencing, cases returned to court because of a breach, face waits of up to six weeks at magistrates’ courts and three months at the Crown Court.

In years gone by courts would happily adjourn a case for three weeks to obtain a comprehensive social inquiry report to assist their decision-making. Admittedly, some of the contents may have been surplus to requirements - one research study I remember found a report on a 50 year old man opening “Brian was a fat and placid baby”. But there’s now simply not enough in the way of core information. Justice Secretary David Lidington has been struck by the fact that less than one per cent of all requirements started under a community or suspended sentence order are Mental Health requirements. Someone needs to tell him that even where such interventions may be available, the time needed to make the arrangements often isn’t. In West Mercia inspectors found that “the proportion of court reports produced on the day of sentence in magistrates’ courts had increased from 47% to 75% over the past 18 months. This was still short of the national target, which required a further 15% to be produced either on the day or in a short written format.”

The pressure on reports predates privatisation but the fact that courts do not have direct contact with the Community Rehabilitation Companies (CRC’s) hasn’t helped raise their knowledge about alternatives to prison.  All of the liaison goes through the National Probation Service. There’s a reason for that. Now that sentences are supervised by private companies, sentencing decisions have taken on a commercial dimension. The Guide to Judicial Conduct makes it clear that the requirements of a Justice’s office and terms of service place severe restraints upon the permissible scope of his or her involvement with any commercial enterprise.

It’s just one example of the corrosive effect of privatisation. Another may be the way CRC’s charge organisations who benefit from offenders’ unpaid work. In West Mercia “unpaid work staff complained that they were not told where the money went, and so they could not answer when the beneficiaries of the work quite reasonably asked what happened to the charge they paid”. It is not surprising that “this had caused some local public relations difficulties”.

Lidington said this week that “we are now looking at probation with an eye to improving performance and maintaining the confidence of courts and the public alike”.  He should look at the courts too. They need to have the time to do their job properly.  In a forthcoming report for Transform Justice, I’ll be arguing that there’s plenty of scope for increasing diversion and out of court disposals in minor matters.  Among many benefits, it would allow courts to spend the time they need devising the right outcome in more serious cases.