A Right Royal Scandal

I don’t know whether protocol requires the Queen to be told when her name is attached to a new organisation or when it is, whether she asks, now and again, how it’s getting along. Probably best not in the case of Her Majesty’s Prison and Probation Service (HMPPS) which replaced the National Offender Management Service in April. For as the year ends, the arrangements for both custodial and community based supervision are in deep trouble, with precious few signs of imminent recovery.

This week’s leaked report of the worst prison conditions ever encountered by inspectors casts serious doubt on Justice Secretary David Lidington’s claim that his government’s reform efforts are now making a difference. Probation’s teething problems have been replaced by difficulties of an altogether more deep rooted variety.  Why is it taking so long to fix this current penal crisis?

For one thing, the political energy has fizzled out of reform. When Brexit sank Cameron, down went prison reform as a great progressive cause, falling further still when plans for legislation were junked after this year’s election. Given the tsunami of violence and self-harm engulfing particularly local prisons, it’s all to the good that grandiose rhetoric made way for practical steps to replace recklessly reduced staff numbers and tackle the everyday misery in the cells and on the landings.

But we need an ambition which goes beyond stabilising the situation on the ground. As the European anti torture watch dog, the CPT, told the UK government this year “unless determined action is taken to significantly reduce the current prison population, the regime improvements envisaged by the authorities’ reform agenda will remain unattainable”. 

Political courage is therefore needed to stem sentence inflation, invest in constructive regimes and allow for earlier release.  Instead we’ve seen a raising of maximum sentences and more offences made eligible for increase if they’re found to be unduly lenient. Here’s a suggestion; if it is deemed necessary to raise a maximum sentence – as is the case with animal cruelty – then lower the upper limit for something else- perhaps theft from 7 years to 5, or possession of a class C drug from 2 years to 6 months. There’s no need for ever longer sentences and the system can’t cope with them.

At a technical level, there are growing questions about whether services are being provided by HMPPS in the best way. It’s now increasingly accepted that the two tier probation system is the predicted unholy mess incapable of delivering success. But given the operational crisis in prisons, is the Academy model the right way to go?  At Holme House, one of the Pathfinder Reform Prisons, inspectors found this summer a significant deterioration in outcomes since 2013 and a big gap between aspiration and the day-to-day reality. At many jails, inspectors have called for much more in the way of support from the centre not less.   At Liverpool’s Walton jail, managers had sought help from regional and national management to improve conditions they knew to be unacceptable long before the inspectors arrived- but had met with little response.  There’s a lot to be said for empowering governors but nothing for leaving them to fend for themselves in a time of crisis.  

Nor is there merit in prisons having freedom to ignore the recommendations for improvement made by the bodies which monitor them. In 2016-7, Inspectors found fewer of the recommendations that they’d previously made were achieved than not. True they can now call out the worst problems immediately they see them, but the long awaited protocol containing this Urgent Notification Process is a missed opportunity to require a proper public response to all of the findings they make. A prison should accept them and act- or reject them and say why. This might prevent the neglect of cells at Walton which ministers claim have had no money spent on them since 1994. Better too if the recommendations of the Prisons and Probation Ombudsman (PPO) and Independent Monitoring Boards are treated in the same way.

Alongside political ambivalence and administrative weaknesses, there still lies a huge resource shortfall. We’re endlessly told the target for 2500 new staff is being met and of course additional officers are helping to ease the worst problems. But its not enough. As the IMB at Bristol reported, “new recruits are being thrown in at the deep end and having to shadow experienced members of staff in firefighting mode rather than with time to train staff more comprehensively”.  Crisis management is the new normal. We’ re told less about the 10,000 new prison places promised by 2020 – and even less about the old prisons they’ll replace- if indeed they will.

10 years ago the Queen famously asked academics at the LSE why no one saw the financial crash coming. She might reasonably ask the same question about the prison and probation crisis, and more importantly now, whether enough is being done to fix it. She might suggest one of her Commissions might be able to help- perhaps a Royal Commission on the use and practice of imprisonment in England and Wales.

Largely out of fashion and open to the criticism of "taking minutes and wasting years," Royal Commissions can nevertheless  play an important role in charting a way forward in respect of deep seated, controversial and intractable issues. Penal policy and provision tick all of those boxes . The CPT recalled in their report this year that  "the adverse effects of overcrowding and lack of purposeful regime have been repeatedly highlighted by the Committee since 1990". Could 2018 be the year to start to bring the scandal to an end?

Probation- The Shape of Things to Come?

The Chief Inspector of Probation's Annual Report published today may not be the nail in the coffin of Transforming Rehabilitation – the 2014 reforms which have fundamentally changed the way offenders are supervised in the community. But it probably marks the start of the reading of the last rites for an ill conceived and hastily implemented programme designed, but failing, to improve the punishment and reform of offenders.

In one sense there’s little new in the report. The media focus may be on the tens of thousands of low risk offenders supervised via a short six weekly phone call but the new system’s many other shortcomings, particularly those of the privately owned Community Rehabilitation Companies (CRCs) have already been highlighted in individual inspection reports. Whether it’s individuals turned away from poorly organised unpaid work sites, rehabilitation programmes requiring little of offenders, or the supposed flagship “Through the Gate" services reduced to little more than form filling, the aggregate picture is not pretty. It not only bitterly disappoints those of us who want to see effective community sentences replace the unnecessary and damaging use of prison. It confirms the worst fears of hard liners who argue that probation puts the public in danger by failing to assess and manage risks properly.

There are oases of good CRC practice noted in Kent, Cumbria, South Yorkshire, West Mercia and Durham- and the publicly run National Probation Service (NPS) seems to be doing an acceptable job. But the titbits of praise in the report are seldom unqualified. Courts might be getting timely pre-sentence reports from the NPS but recommendations for suitable people to undertake accredited treatment programmes as part of their community sentence have plummeted. Contrary to what’s sometimes thought, probation staff are not over-eager to return non-compliant offenders to court and most breach decisions are taken wisely. The problem is the reverse with  case management so weak that  CRCs "may not know when enforcement is called for". 

All in all, 18 months’ worth of data has left Chief Inspector Dame Glenys Stacey with no option but to conclude, as was widely predicted at the outset, that “regrettably none of the government’s stated aspirations for Transforming Rehabilitation have been met in any meaningful way”.

What is new is that Dame Glenys today openly questions “whether the current model for probation can deliver sufficiently well”. It’s one thing to find fault with the performance of probation services up and down the country- but quite another to call into question whether the fundamental way those services have been arranged is fit for purpose. Implicitly or explicitly, the report blasts the split between the NPS and CRCs which sees organisations compete for staff and haggle over the provision of and payments for specialist services for offenders; and the funding model which has left CRCs  with way less cash than they anticipated, forcing them to pare down staff numbers repeatedly and leaving some remaining junior staff with caseloads of 200 plus. She is certainly worried that the sweeping aside of national standards in the name of innovation has allowed not only large amounts of remote supervision but some face to face  interviews to be conducted in places lacking privacy. Dame Glenys must wonder too about the way that the performance monitoring framework developed by Her Majesty’s Prison and Probation Service gives the debacle the Inspectorate describes a largely clean bill of health.

In truth, this quietly devastating report makes it clear that all of these dimensions need to be changed.  And knowingly or not, it may suggest how. In their 140 odd Youth Justice Inspections, the Inspectorate found  that  Youth Offending Teams (YOTs) perform to a good level and  "can be rightly proud of the work they do". These local authority based multi-agency teams, developed in Tony Blair’s first term, partly in response to a damning critique from the Audit Commission, have by and large proved an effective model for diverting young people from crime, from prosecution and from custody. 

This is surely the sort of approach we now need for adults. There’s scope for discussion about the role Police and Crime Commissioners might play in any new system and whether Adult Offending Teams should form part of a broader devolution of justice responsibilities and budgets to a more local, and locally accountable, level. But we have plenty of time to have that discussion.

The current probation arrangements may have to limp on for three years but there is nothing to prevent serious work on succession arrangements to begin next year. Justice Secretary David Lidington should establish some form of inquiry or commission to look dispassionately at what to do next.   He may want to see what the Justice Committee comes up with in its investigation first.  But one thing is certain. The future shape of probation services must not be driven by the ideological dogmas which have brought them down to the sorry level we see today.

Why Less is More- The Case for Dealing with Offences Out of Court

With mounting pressure on police and justice budgets across the country, it’s surprising that recent years have seen a large decline in the use of out of court disposals to deal with low level offending. Simple or Conditional Cautions, Penalty Notices, Community Resolutions and Drug Warnings can offer a quicker, simpler and more effective  response than a prosecution.  But more than half of first time offenders now go to court rather than receive a caution, compared to 1 in 5 ten years ago. A new report published by Transform Justice –   Less is more- the case for dealing with offences out of court- says it’s high time to reverse that trend.    

It’s true that not everyone’s a fan of diversion. Some judges, magistrates and lawyers think offenders may accept a caution when they are not guilty or do not understand they will get a criminal record. Others complain diversion’s got out of hand with too many serious offences or persistent offenders getting little more than a slap on the wrist instead of being taken to court. Today’s report, however, shows that almost half a million convictions last year resulted in low level penalties such as fines or discharges. Unlike some diversion measures, such sentences do nothing to rehabilitate offenders or compensate victims.

Politicians may think it plays well with the public to promise an end to the “cautions culture”- former Justice Secretary Chris Grayling did so back in 2014. But on grounds of efficiency, effectiveness and economy, as long as there are proper safeguards there’s a strong case for extending not shrinking the availability of options for dealing with crime outside court.

As well as legislating to limit the use of diversion for serious and repeat offenders, Governments since 2010 have developed a policy intention to replace the existing range of out of court disposals with just two - a community resolution or a conditional caution. Three police forces have been piloting this two tier system and, while an evaluation is yet to be published, change will be needed if diversion is to fulfil its potential. 

The most important is the need to fund a suitable range of treatment options so that where necessary petty criminals can be helped to solve the underlying problems which so often drive their offending. Pilot programmes such as Operation Turning Point (OTP) in the West Midlands and Checkpoint in Durham have shown that rehabilitation can work at this stage in the criminal justice process.  And it’s affordable. OTP achieved a saving of around £1,000 per case, including all of the costs of the intervention programmes. This suggests the potential for diversion arrangements can kick start a justice reinvestment approach which uses the savings diversion brings to police, prosecutors and courts to fund local programmes designed to further reduce crime and prevent offending.

There’s a case too for extending the approach to diverting children away from the courts to young adults, so that they are given a greater opportunity to grow out of crime. South Wales Police have adopted this approach with promising results.

If there’s to be more in the way of diversion, local arrangements will need to enjoy public confidence. Most police forces have established scrutiny panels to keep an eye on the kinds of offenders getting out of court disposals and what they are being required to do in terms of rehabilitation and reparation.  Work needs doing to identify the best models for holding police forces to account for their decision-making. The Transform Justice report proposes that panels should ask not only if cases dealt with out of court should have been prosecuted – but also whether court cases leading to nominal penalties would have been better diverted. 

Six years ago the Police Inspectorate argued that  the expression ‘out-of-court disposals’ perpetuates a sense that they are much less important than a disposal in court – in effect a soft option.  Today’s Transform Justice Report concludes by calling on Government ministers and criminal justice stakeholders to communicate the positive advantages of measures out of court  and make efforts to show their benefits.  Rather than railing against an imaginary cautions culture, ministers should be promoting a culture of cost effectiveness – and that includes a greater not a lesser role for diversion.