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 Probation’s teething problems have been replaced by difficulties of an altogether more deep rooted variety.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. 

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.

Youth Custody Update- Nothing for Young Adults , Fantasy for Children

Like many discussions on young adults in the criminal justice, today’s Justice Committee hearing turned out mostly to be about children under 18 instead. Indeed Justice Minister Dr Philip Lee did not seem all that convinced that young adults should be treated any differently from anyone over the age of 18.  Yes, the Prison service is piloting a maturity assessment tool for use with young adults although it wasn’t at all clear what practical measures will result from it.  One of the key questions- is it better for young adults to be accommodated in specific institutions or mixed with adults remains unanswered. There are only three young adult YOI’s left- Aylesbury, Deerbolt and Feltham B and there seemed little appetite from Lee or Prisons Chief Michael Spurr to develop the kind of age appropriate model which works well in other countries.

For under 18’s by contrast there seems an ambitious, if not precipitate, long term vision of replacing the current portfolio of closed establishments with the new secure schools proposed by Charlie Taylor in his review of youth justice.  The first two- one of which will be in the North West, will not be up and running for four or five years but Dr Lee seemed confident that when they prove successful they will be rolled out nationally by one of his successors. When pressed for detail about what they’ll be like, Lee told the committee the young people will spend more time outside and engage much more in sport.  More than once he quoted a Saracens Rugby initiative in Feltham which had a re-offending rate of 8%.

Lee is a keen sportsman. According to Wikipedia he has played competitive rugby union for Marlow RFC and seems to have followed the England football team at various tournaments which shows commendable resilience at least.  There’s a lot to be said for encouraging much more in the way of physical activity and team sports for young people behind bars. But surely a custodial strategy for this age group as a whole-including girls- needs to be based on very much stronger philosophical and policy foundations.     

In the meantime, Lee mentioned almost in passing, that controversial outsourcing giant G4S are no longer seeking to sell Oakhill STC and want to make a go of running the contract which lasts until 2029. In 2016, the company announced it would be selling its UK children’s business. Whether it cannot find a buyer or have had second thoughts is not clear.  Ofsted found earlier this year that Oakhill “requires improvement” so the results of the next inspection will be awaited with interest.  Spurr told the committee that another STC- Medway - had got a lot better since HMPPS had taken it over from G4S. In fact Ofsted found Medway “inadequate” back in March, eight months after the July 2016 takeover. YJB chair Charlie Taylor – who wasn’t at the hearing – has apparently found it much improved since then.

Given the latest G4S debacle at Brook House Immigration Removal Centre, currently being investigated by the Home Affairs Committee, one might have expected Dr Lee and his colleagues to have informed Parliament and the public before today about the G4S change of plan. There must remain serious doubts about the company's fitness to look after some of the country's most vulnerable, damaged and challenging children.   

Margin of Error: Government Proposals on Prisoner Voting Are Not Good Enough

So the Government may finally allow convicted prisoners to vote in elections albeit in very limited circumstances. It’s not clear from the reports the categories for whom the current ban will be lifted. Will it be those serving sentences of less than 12 months who happen to be outside prison on day release on the date an election happens to fall? Or will a more proactive scheme be introduced for enabling those short term prisoners who would be eligible for so called Release on Temporary Licence (ROTL) either to go out to a polling station or cast a vote in jail?  We’ll have to wait for the eventual proposal but either way it’s a tiny number who will be enfranchised. The leaked Government paper talks of hundreds (out of 86,000 prisoners) but it could be tens. Day release is seldom used for the 6,000 odd short term prisoners as things stand.

The idea presumably is to make a change significant enough to satisfy the European Court of Human Rights that their rulings in the Hirst case have been complied with; but so insignificant that Parliament and the public can swallow it, without in the case of the former Prime Minister regurgitating.

Will the strategy work? Dominic Raab, now a Justice Minister, thought six years ago that “giving the vote to prisoners sentenced to six months or less or a year or less is not a compromise, because it is bound to be rejected by Strasbourg”. The apparently narrower offer now on the table – a sub-group of short sentenced prisoners- could presumably be thought more likely to fall outside the margin of appreciation allowed by the Court. But since 2011, the ECtHR has bent over backwards for the UK. It refused to allow prisoners to be compensated for their inability to vote in spite of its ruling that the blanket ban was unlawful. In controversial decisions too, it decided that the regime for whole life tariffs in England and Wales is compatible with the ECHR although in truth the scope for review and prospect for release in such cases are so limited that it is hard to see how the sentence is reducible or  gives a genuine right to hope.  The ECtHR also allowed extradition to a US Supermax prison described by a former warden as “a clean version of hell”. For what it’s worth I reckon that the court will be content with at least some move towards compliance, however token.

What about domestic reaction? In 2011 an overwhelming majority of MPs the supported the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand. Those who voted for the status quo included Raab and his current colleagues in the MoJ Phillip Lee and Prisons Minister Sam Gyimah. The current Home Secretary and Solicitor General backed the motion put forward by David Davis and Jack Straw as did three other current Cabinet Ministers. If the new line is agreed by Government they would need to support it or resign. One of them, now culture minister Karen Bradley told parliament that she “was elected to be the voice of my constituents in this place, and many of them have contacted me to express their concern about the matter. They are firmly, to a man and a woman, against any move to give votes to prisoners, and I am wholeheartedly in agreement with them”.

While many Labour members voted to keep the ban, Jeremy Corbyn was a teller for the noes. His argument in the debate is surely the right one. “If we as a country are signed up to the European convention on human rights, ...and if the Court makes a judgment on the question of prisoners' voting rights within that convention, we are bound by that judgment, by treaty and by law”. 

The Government should legislate for a much more generous arrangement on prisoner voting than the pitiable offer  doing the rounds in Whitehall and bring to an end a  shameful episode for the rule of law. 

A Matter of Judgement

Earlier this week, Labour peer Lord Adonis shifted his fire from university bosses to judges. Both are often considered (and consider themselves) to be world class; but Adonis tried to use the large increase in the prison population since the 1990’s to claim that the judiciary were far from that. In a series of provocative tweets, he accused them of sins of commission – pushing up the going rate for offences - and omission- failing to stand up to illiberal government criminal justice proposals and the punitive tabloids.

Various legal tweeters rushed to the judges’ defence pointing out that it was New Labour’s criminal justice legislation which had driven up prison numbers while judges simply and faithfully applied the law as they must. As often on twitter, an interesting debate quickly descended into ridicule and abuse, albeit modest by the standards that prevail. I even got caught up in it myself. Having suggested to Adonis that the Sentencing Council – whose president and chair are senior judges-could have done more to limit prison growth since 2010, I retweeted his take that the Council “has followed the Daily Mail out of fear”. I was told by an Oxford academic that my retweet was fostering misunderstanding and I had an obligation to make clear that Adonis’s juvenile view was manifestly wrong.

Adonis may have been unfair on the Council, although it is arguable that of the matters to which they must have regard when producing guidelines, more attention has been paid to the need to promote public confidence than to the costs and effectiveness of sentences. Indeed I have argued this in a report for Transform Justice. But leaving to one side Adonis's combative and somewhat disdainful approach, what of his wider point. How culpable have the judiciary been in the matter of the spiralling prison population in England and Wales?

Mike Hough and colleagues’ detailed study of the 71% rise in the adult prison population from 36,000 in 1991 to 62,000 in 2003 found that tougher sentencing - longer prison sentences for serious crimes and more short prison sentences instead of community penalties -came about through the interplay of an increasingly punitive climate of political and media debate about punishment; legislative changes and new guideline judgements; and sentencers’ perceptions of changes in patterns of offending. So everyone’s to blame.

The study found that statistics did not lend support to sentencers’ beliefs that offenders were becoming more persistent, and committing more serious crimes, although more research was needed about that. Sentencers told researchers that they could resist pressures to ‘get tough’ from the media and the public, but at the same time, “they feel they have a duty to ensure their sentencing decisions reflect and reinforce the norms of wider society.”  It’s not clear where they learn about those norms but the study does not wholly vindicate the legal tweeters who held the judges wholly blameless for booming prison numbers.

Since 2003, it’s Adonis’s former colleagues in the Blair government who have a good deal to answer for.  David Blunkett’s monstrous IPP sentence was used far more than anticipated and new minimum tariffs for murder cases have hauled up the going rate for less lethal crimes of violence. While no doubt it’s the legislature in the dock for these prison boosting measures, could – and should- judges have done more to mitigate their baleful impact through more creative interpretation of the statutory provisions?  Discuss.

One lesson from all this is that Twitter is unlikely to be the best forum for resolving complex legal and constitutional problems. Another is that there’s something of a two nations divide between lawyers and the rest of us. Some in the legal profession, by no means all, seem disproportionately  touchy about criticism from outsiders. Those congratulating each other that their tweets had successfully “schooled” Adonis on his apparently uninformed barbs about the judiciary will I hope  be prepared to engage with the bigger questions he raises.  A proper debate about the roles and responsibilities of the legislature and judges in sentencing policy is long overdue.

Courting Trouble

There’s much of interest in the new Centre for Social Justice (CSJ) Report “What happened to the Rehabilitation Revolution? While the opening chapter’s title - “The recent history of disappointing progress”- grossly understates the scale of the current penal crisis, several of the initiatives proposed by Jonathan Aitken and John Samuels are surely prerequisites for resolving it.  Improving the numbers, training, status, pay and conditions of prison officers and fixing the failures of the remodelled probation service are now widely agreed to require urgent attention.  Ending the injustice faced by tariff expired IPP prisoners is also long overdue. If CSJ’s political connections can ensure further action in these areas, so much the better.

But what of the more controversial of the report’s ideas, in particular the expanded role it envisages for judges and magistrates.  CSJ propose that courts should monitor and review the sentences they impose, authorise recalls to prison for offenders in breach of their licence requirements, and hear applications both for early release from prison and for limitations on the impact of criminal records. John Samuels has been a longstanding champion of problem solving courts and is understandably frustrated at the mixed messages from government about their prospects.  But with tight budgets, court closures and digitisation, is the judiciary in any kind of position to take on these additional tasks? 

Despite some heroic cost benefit assumptions- based it has to be said on experience in the very different context in the USA-, there’s no doubt that increasing court lists would require something in the way of upfront funding. In his final annual report Lord Chief Justice Thomas wrote recently that “the just, effective and timely delivery of criminal justice remains of real concern to the judiciary”. Taking on more duties is hardly likely to alleviate such concerns.

There’s a broader question too about how far courts should become involved in the implementation of sentences.  There is a strong case for courts to decide whether people who don’t comply with probation conditions should be returned to jail. But there is a balance to be struck between judicial and executive responsibilities in the management of offenders. The continental system of penal execution judges may not be desirable let alone affordable in England and Wales.

Rather than invest in additional layers of judicial accountability, the government might do better to enable more cases to be kept out of court altogether.  In a forthcoming report for Transform Justice, I’ll be arguing that there is scope for diverting many more low level offenders.   Since 2010, the numbers of convictions and out of court disposals have both fallen sharply but while the former have gone down by 12%, the latter have declined by 47%.  Less than a fifth of cases were dealt with out of court last year compared to more than a quarter seven years ago.  Increasing numbers who appear in court get fines and discharges – 85% of summary offences and 30% of either way offences. Why not deal with some of these more cheaply and speedily without prosecution?  Re-offending rates are no worse and victims somewhat more satisfied. David Lammy’s report last week argued that greater use of suspended prosecution- along the lines of  Operation Turning Point in the West Midlands -could help to reverse the gross racial disproportionality that scars our system. But reviving diversion would benefit all.  

Suspended prosecution is in fact part of the government’s long term plan- seven years and counting in the making- for streamlining out of court disposals. But to work as intended, police and prosecutors will need to be able to point people at rehabilitative or restorative activities that can help them stay out of trouble – whether it’s cutting down on drinking, keeping their temper, or finding work.  Funding such approaches with funds released via fewer prosecutions is the way forward. Not problem solving courts but problem solving, out of court.  

Why the Punitive (Re)Turn?

Why is the prison population increasing? Latest projections show numbers in custody are likely to increase by 1600 – at least one new prison’s worth – by 2022. The main reason is not that more and more people are being caught and punished for criminal offences. It’s that higher and higher proportions of those who are, nowadays receive custodial sentences. And their prison terms are getting longer. Both trends are confirmed in the latest criminal justice statistics. These show that it’s not only sexual and violent offenders who are facing tougher sanctions in court. Less than a quarter of people convicted for theft in 2010 went to jail but last year it was almost 30%. Average prison terms as a whole have gone up from 13.7 to 16.6 months over the last seven years.

It’s possible that courts are seeing more serious cases or more prolific offenders than before. That’s difficult to know in the absence of detailed research. But the halving of the cautioning rate – the proportion of offenders who were either cautioned or convicted who received a caution- suggest that many more low level cases came to court in 2016 than 2010.

There are other more likely explanations for this new punitive turn. The dismantling of the probation service may have made non-custodial sentences it supervises less attractive to judges and magistrates. Since 2010 the proportion of indictable only crimes- the most serious- dealt with by a community order or suspended sentence fell from a quarter to a fifth. For either way offences, market share for these two disposals fell from 42% to 37%.

Another culprit may be the Sentencing Council. A recent analysis has found that the guideline it produced on burglary offences in 2011 may have inadvertently encouraged courts to deal more severely with all types of breaking and entering. Although the Council did not intend to inflate the going rate, expanding the definition of the loss to the victim in such cases and creating a long list of factors signalling greater culpability by the offender seems to have pushed courts to punish offences more harshly than before.   As I argued in a report for Transform Justice last year, the Council has not only failed to curb the growth in imprisonment-its original purpose. It may have made matters worse.

A poll published this week confirmed what has long been known- that the public is much less punitive than is often supposed. Asked what they believe would be most effective in cutting crime, more police on the streets, better parenting, greater discipline in schools and better rehabilitation all score highest. Just 7% of the public think the answer is more people in prison.  Yet without some bold policy making in the Ministry of Justice, that’s just what we are going to get.

    

Fired Up about Prison Reform

It’s less than 18 months since David Cameron cast prison reform as “a great progressive cause in British politics”. His vision was for “the leadership team of a prison to be highly-motivated, to be entrepreneurial and to be fired up about their work”. The President of the Prison Governors Association is certainly fired up alright but less with enthusiasm than exasperation. I can’t recall such a broadside being delivered by a public servant to her bosses- nor one that is so (almost) wholly justified- as that which was delivered by Andrea Albutt today.

Cameron’s hubristic vision of a modern, more effective, truly 21^st century prison system looks as far away as ever. The levels of violence, drug-taking and self-harm which he thought should shame us all in February 2016 have continued to soar.

So what’s gone wrong? Three things. First was the failure- wilful or otherwise - to see the severity of the impact which budget reductions would make on the stability of prisons.  There was never really a “Golden Years pre austerity” as Andrea Albutt has put it. But all too often, “too great a degree of tolerance of poor standards and of risk” as Robert Francis QC said of Mid Staffordshire NHS Trust. Such a tolerance was one of the reasons why numerous warning signs did not alert the health system to developing problems in Mid Staffs. The same is true of many prisons which were never truly stable enough to withstand the level of cutbacks, particularly when Ken Clarke’s efforts to reduce the population were shelved.   

Second the government applied a formula approach to reform which ignored some of the distinctive challenges of prisons. Cameron promised to "bring the academies model that has revolutionised our schools to the prisons system". It was a mistake. An approach is needed that recognises that individual prisons cannot float free in the same way as schools and their customers have no choice over which establishment they attend. Given the risk averseness of government, whatever ministers may say, innovation is always likely to be closely controlled from the centre. The so called empowerment agenda has, says Andrea Albutt, yet to gain any traction, with governors now accounting both to their headquarters and the Ministry- the result of a ‘perverse’ severance of policy from operations which has so far added cost but little benefit.

Third there has been an optimism bias about the reform agenda. I’m not sure whether Maslow’s hierarchy of needs is still in vogue, but it should have been obvious that without safety and security, loftier ambitions about rehabilitation have no chance of success, however flowery the rhetoric. Too many stakeholders have been taken for a ride. The National Audit Office for example, will presumably look back with some embarrassment on their 2013 assessment that "the strategy for the prison estate is the most coherent and comprehensive for many years, has quickly cut operating costs, and is a significant improvement in value for money on the approaches of the past". Their view that the Ministry of Justice make good use of forecasts of prisoner numbers and have good contingency plans is flatly contradicted by the PGA’s view that the recent rise in the population, unforeseen by the statisticians in MOJ, has left virtually no headroom in prison spaces.

So what to do? First to stabilise the population, create that headroom and make a dent on overcrowding, some kind of early release scheme should be introduced while longer term plans to reduce the population are put in place. There’s no shortage of ways of doing that -only a shortage of political courage to do so. The new Secretary of State for Justice needs to show that. 

Second, some structural changes. Shifting responsibility for juveniles out of the MOJ and prisons into the education ministry; a Youth Justice Board for young adults, a new body to deliver alternative accommodation for elderly prisoners. Devolving financial responsibilities for prisons to local areas.  They won’t produce quick fixes but could help take the pressure off an overburdened prison system in the medium to long term. 

Finally, capable prison governors working in Whitehall should be returned to the front line and experienced staff who have left the service in the last five years lured back into it whatever it takes. Plans to recruit more and better qualified staff are promising but will take time the service has not got.  Some of the capital resources intended to build new prisons should be converted to revenue to pay for staff .There is growing scepticism that the £1.3 billion secured from the Treasury for new prisons can be spent by 2020. Some of it should be used to repair the current arrangements rather than establishing new ones.

In less than three months, the largest annual gathering of international prison professionals takes place in London for a week of discussions about “Innovation in Rehabilitation: Building Better Futures”. Its focus is on improving outcomes for prisoners. But that won’t happen unless they are improved for prisons first.

Prisons- a Collective Failure?

As part of the celebration of the life of Nelson Mandela, today has seen efforts to promote the rules bearing his name which seek to establish minimum standards for the world’s prisons. The first of these rules states that “the safety and security of prisoners, staff, service providers and visitors shall be ensured at all times”.

How shameful therefore that today also saw the Chief Inspector of Prisons publish a damning indictment of the prison system in England and Wales. A year ago, in his 2015-16 report, Peter Clarke found that too many prisons had become violent and dangerous places. Far from seeing improvements since then, things have got even worse with “startling increases in all types of violence”. Surely, it is- or should be- a national scandal that there was not a single establishment that Clarke inspected in 2016-17 in which it was safe to hold children and young people.

There may be some satisfaction but limited value in allocating blame for what is in truth a collective failure over the last seven years. Successive Justice Secretaries since 2010 should carry the bulk of the can. In the Coalition years, Kenneth Clarke made a gung- ho financial settlement with the Treasury which he failed to adjust when his plans to reduce the size of the prison population crashed and burned. His successor, Chris Grayling focussed on making the prison system “cheaper not smaller” by allowing it to remain largely publicly run in return for reckless staff reductions. The Lib Dem Coalition partners were silent throughout.

Post 2015 when prison reform allegedly became a top social justice priority, Michael Gove was allowed to pontificate endlessly while conditions in jail continued to deteriorate. It’s perhaps only been Liz Truss who came close to recognising the scale of the crisis and started to get staff back on the landings.

There are questions too for the senior officials in the Ministry of Justice who could arguably have put more obstacles on the path to destruction. Exactly ten years ago, the Labour government were forced to release prisoners 18 days early to combat overcrowding.  Ministers took flak for the End of Custody Licence Scheme but had been told by officials that the system couldn’t cope without it. One would like to think today’s generation of prison bosses at least suggested something similar. The Youth Justice Board too fell asleep at the wheel of the children’s secure estate and has now been relieved of those duties.  

In truth, there are uncomfortable questions about the arrangements as a whole. Can a monitoring system said to be working when most Inspectorate recommendations are not achieved, and the Ombudsman finds prisons unable to learn lessons from his reports? It is dispiriting that pre 2017 election plans to strengthen monitoring bodies and require a response to what they say have been scrapped.

On the wider front, the Justice Committee has found it hard to hold ministers to account in Parliament. Perhaps like some of civil society they have been taken in by the grandiose rhetoric around prison reform. While looking at the stars they have forgotten that prisons are in the gutter.   

Peter Clarke says, without conviction, that he hopes sharper responses to his Inspectorate reports can be realised through administrative directions. For all our sakes, a much more comprehensive set of answers are required to the grave charges he makes in his annual report.    

Satellite Tracking of Offenders - Pie in the Sky?

The National Audit Office Report on recent efforts to expand electronic tagging paints a sorry picture of failed procurements, contract disputes and wasted public money including £60m of sunk costs. The report finds the new generation electronic monitoring system (EM)– which both enforces curfews by verifying whether an offender or suspect is at home and a location tracking function -will be five years late if it gets going by next year.

Whether this is realistic or not “will largely depend on the plans of G4S, the new preferred bidder for the tags”. It’s hard to understand how the controversial private security company is still involved in this field at all. For one thing, they are under investigation for fraud following the 2014 overbilling scandal- one of the factors identified by the NAO as contributing to the delays in the new system. Should criminal wrongdoing be proved, could they really continue with the contract?  And while G4S’s future role seems to be limited to providing the tags themselves, only last year faults were found with these. As a result enforcement action may have been taken against offenders or suspects in response to false tamper reports.

What the NAO report doesn’t do is make a broader and longer term assessment of the contribution that EM has and could make to criminal justice. If they had, they’d find the delay in getting location tracking off the ground is closer to fifteen years than five.   In 2004, with the prison population at 74,000, then Home Secretary David Blunkett promised that satellite tracking technology could provide the basis for a 'prison without bars', potentially cutting prison overcrowding, and expensive accommodation. Plans were announced for the 5,000 most prolific offenders in England and Wales to be tagged and tracked using the global positioning system (GPS). Pilot schemes were duly arranged and evaluated with magistrates and District Judges finding tracking “a helpful sentencing option”.

Since then, while the prison population has increased by 11,000, the NAO found that the average number of subjects having their movements tracked using GPS in 2016-17 was …20. It’s true that more than 10,000 people are subject to curfews of one sort or another and some – particularly those on Home Detention Curfew- would otherwise be in prison.

But for whatever reason- political, technological, administrative- the promise of tracking as a way of emptying prisons has simply not been delivered. When I put this point to a provider of EM recently, I was told something to the effect that only 2% of households had fridges in 1950. Success, it seems is just around the corner.

An excellent recent study of EM concluded that it has universal appeal, with its chief purpose being “its perceived ability to bring about cost savings by operating as an alternative to prison”.  But as the NAO finds “there is still limited evidence"about its effectiveness. While their report documents a shocking history of failure to organise EM properly, it avoids the bigger question about the role it is expected to play in the criminal justice system in England and Wales.

Prison Break

Why has the government junked the prison bit of the Prison and Courts Bill? There seem to be three main possibilities.  

The first is that with big issues like the purpose of prisons and the role of the Secretary of State in running them due to be determined, ministers didn’t fancy depending on mavericks like Philip Davies MP let alone the DUP to get their way. The Tory party has always had its Michael Howards as well as Douglas Hurds and the risk of being held to ransom by hardliners – and having to rely on Labour votes to get their way- simply wasn’t worth the candle.  Besides, the key to sorting out prisons-so this theory goes- doesn’t lie in a new legal frameworks but putting staff boots back on the ground as the new Justice Secretary told us in his open letter today.   

Theory two is that when Theresa May and her people asked what was in the bill, they were told that inspectors would get greater powers and ministers would have to respond to their criticisms. To which came the reply why on earth are we making another rod for our own backs? More transparency and accountability are the last thing we need just now.

Option three is that Mrs May is simply no prison reformer or at least not in the grandiose Cameron/Gove mould which gave shape to the thinking behind the Bill. She may be an instinctive hardliner herself but her record on social issues defies that simple characterisation.  More likely in her weakened state she has realised that as far as the public is concerned, there are no, or few votes in prisons.  With crime rising once again and what maybe a growing threat and reality of terrorist violence, reform and rehabilitation of prisoners is unlikely to help her government’s popularity in the country.

Whatever the reason- and it may be a bit of all three- within 18 months prison reform has been marched to the top of the hill and back down again. Mr Lidington’s letter promises that the work of making prisons places of safety and rehabilitation goes on. Maybe that is better done away from parliamentary and public gaze. But it feels, as the Chief  Inspector of Prisons  has said, a missed opportunity.    

The History Boy

New Justice Secretary David Lidington has strong links with the past. For one thing, he gained a PhD by studying the enforcement of  penal statutes in the 16th Century. More recently, he worked as a special adviser to Douglas Hurd in the Home Office from 1987, in the days when the Home Secretary was responsible for penal policy and for the prison and probation services which gave practical effect to it. Hurd is remembered as a liberal although preferred to describe himself as pragmatic. While Hurd paved the way for the 1991 Criminal Justice Act which sought to limit custody, it was his successor David Waddington whose White Paper included the famous (though surely flawed) axiom that imprisonment can be an expensive way of making bad people worse.

As Hurd’s SPAD, Lidington will have been familiar with many a prison crisis. Almost thirty years ago, Hurd had to tell the Commons that prison numbers had risen by 4000 in twelve months pushing the population more than 9,000 above its uncrowded capacity. With 600 prisoners in police cells, Hurd had to announce a range of short and long term measures to avert disaster;  a series of disturbances the previous year prompted  Hurd to tell MP’s "of the delicate balance between order and disorder in our prisons.”

I don’t know what if any part Lidington played in putting together the remedial plan which emerged. It included an accelerated building programme, the introduction of the private sector and the opening of an army camp. There was also action to reduce demand for prison places- a more generous regime of early release pending a wide ranging review of parole, remission and post release supervision to be undertaken by Mark Carlisle QC. 

The package provided short term relief but three years on the Strangeways riot showed it to have been a sticking plaster at best.

As Lidington takes up the reins, he will want to avoid history repeating itself. He already has a building programme in place, so it’s demand rather than supply he needs to look at. While the prison population has been stable for the last seven years, prisons are still overcrowded. He and Hurd managed to get the numbers down from 51,000 to 45,000. Could Lidington achieve a 10% reduction and bring an end to overcrowding?

Back in 1987, one reason for the sharp rise in numbers was an increase in the average length of custodial sentences passed by the Crown court.   Sentence lengths have risen recently too.  One lever that’s now available is the Sentencing Council. Lidington should ask the Chair how he plans to reduce sentence inflation. He should also find some long grass into which to kick the manifesto plan to extend the unduly lenient sentence scheme. 

More positively, Lidington should look seriously at the pledge to devolve criminal justice responsibilities to metro mayors and Police and Crime Commissioners.   Building local incentives to reduce the need for imprisonment should be a long term aim. He will probably have to stick with (and invest into) the reformed probation landscape in the short term. But planning a stronger and more stable set of arrangements for the future should be an important priority.

Come What May

In February,Theresa May quipped that when she was at the Home Office she used to say of Justice Secretary Ken Clarke “I locked ’em up and he let ’em out”.  Fears of a tougher approach to criminal policy in the Conservative manifesto have largely been allayed- continuity is the order of the day. While that may be a relief, it’s disappointing to see retained the policy of extending the scope of the Unduly Lenient Sentence Scheme “so a wider range of sentences can be challenged”.  Given recent increases in sentence lengths, reviewing the work of the Sentencing Council would have been a better way forward.

The prison reform legislation interrupted by the election looks set to continue with an additional much needed plan to reform the entry requirements, training, management and career paths of prison officers. Alongside efforts to attract graduates to work in prisons, this suggest a welcome recognition of the need to invest much more in prison staff. Figures out today show a large increase in prison officers leaving their jobs; almost a quarter today have less than two years’ experience in the work.  The pledge to reduce the disproportionate use of force against Black, Asian and ethnic minority people in prison, young offender institutions and secure mental health units represents an overdue commitment to address racial injustice inside prison as well as outside. There's a good idea to encourage employers to take on ex offenders via a 12 month National Insurance break.

As for non-custodial measures, there are promises to create a “national community sentencing framework” and introduce “dedicated provision” for women offenders- whatever they might entail. The drafters of this section seem to have taken on board Churchill’s view that manifestos should be a lighthouse not a shop window.  

There is a bit more clarity about increasing the role of police and crime commissioners. They will sit on local health and wellbeing boards, enabling better co-ordination of crime prevention with local drug and alcohol and mental health services. There’s the prospect too of “greater devolution of criminal justice responsibility and budgets to local commissioners”. With Mayors in London and Manchester keen to extend their responsibilities we could see important changes in governance. 

   

The Conservatives have not been averse to promising changes to police structures- bringing the Serious Fraud Office into the National Crime Agency and creating an Infrastructure Policing body combining Transport, Nuclear and Defence police forces. There will also be a new domestic violence and abuse commissioner.

I wouldn’t rule out further changes when, as seems likely, Mrs May forms the new government.  I still think we could see prisons moved back to the Home Office. Then the Home Secretary would be in charge of locking up and letting out.  

Liberal Order

One of many recent disappointments for prison reformers was how little the Liberal Democrats were able to influence criminal justice policy during their time in government. Almost none of their 2010 manifesto pledges on justice – such as a presumption against short term prison sentences - made it into the Coalition agreement. They might pray in aid a modest expansion in restorative justice. But the Lib Dems share of responsibility both for the disastrous underinvestment in prisons and rushed privatisation of probation weigh heavily on the debit side as does the absurd and thankfully abandoned Secure College for young offenders.  What are they offering to the electorate this time round?

Despite their electoral meltdown two years ago, the 2017 Lib Dem manifesto creditably retains many of the proposals from previous campaigns; the presumption against short prison terms, an extension of the role of the Youth Justice Board to young adults, and a new Women’s Justice Board. They continue to want to see Community Justice Panels and other local schemes designed to resolve conflicts and reduce harm.

As in 2015, the Lib Dems would replace the elected Police and Crime Commissioners (whom they helped to introduce) with local boards and introduce a Victim’s Bill of Rights. This would include a right for victims “to request restorative justice rather than a prison sentence” (whatever that exactly means).

The radicalism comes in the drugs field. Previous manifestos have pledged an end to imprisonment for possession for personal use, but policy on legalisation has gone no further than looking at evidence from abroad. The party is presumably satisfied that the impact on public health and crime of legalisation initiatives in the US and Uruguay are such that they can go further and so now promise a legal, regulated market for cannabis. They’d repeal the Psychoactive Substances Act and move responsibility for policy from the Home Office to Department of Health.

The ambition on the drugs front is not quite matched on prisons. Yes the plan is to transform prisons into places of rehabilitation, recovery, learning, and work, with suitable treatment, education or work available to all prisoners. Trans prisoners would be placed in prisons that reflect their gender identity, rather than their birth gender. And the overrepresentation of individuals from a BAME background reduced at every stage of the criminal justice system, taking into account the upcoming recommendations of the Lammy Review.

But unlike in previous manifestos, there’s nothing about stopping or scaling back prison building. Two years ago the party believed “that a large prison population is a sign of failure to rehabilitate, not a sign of success. So our aim is to significantly reduce the prison population by using more effective alternative punishments and correcting offending behaviour".  In 2017 they look a bit more cautious.

It’s Plaid Cymru whose manifesto has a hint of reductionism. They would block the development of the Port Talbot super prison. But it’s only a hint. Instead they would provide “much-needed” prison spaces for women and youth offenders in Wales.

More Hard Labour?

In the midst of Jeremy Corbyn’s radical plans to transform Britain, it’s perhaps surprising to learn that Labour is still “tough on crime and the causes of crime”. That most Blairite of slogans- albeit one thought up by Gordon Brown- shaped the New Labour government’s approach to criminal justice policy over 13 years from 1997. Over this period, harsher sentencing – in particular for repeat offenders, caused prison numbers to rise from 60,000 to 85,000.  Had Brown won the 2010 election, we were promised a total of 96,000 places by 2014 plus an outlandish plan to use the tax system to claw back from higher-earning offenders a proportion of the costs of prison.

How then to square Labour’s retention of the tough on crime mantra in their 2017 manifesto with a welcome vision of prison as a last resort, "the state’s most severe sanction for serious offences"?  It’s partly no doubt a matter of what the Americans call "optics"- how the policy will look, whatever it actually does. It also reflects divisions within the party about the direction of penal policy which came to a head last year when calls for an end to the penal arms race were met with scorn by the Blairite old guard. For them, the slogan will provide a welcome continuity with the past.

But for Labour’s new vanguard there are attractions too. A 2017 Labour government would of course be aiming to attack the causes of crime by the raft of measures designed to relieve social deprivation and reduce inequality.But what about dealing with people in conflict with the law? 

The manifesto’s recognition that prison is too often a dumping ground for people needing treatment rather than punishment opens up the idea that a determined and durable crime policy does not have to mean an ever increasing custodial population. A programme to expand residential and community based options for people with mental health and drug problems could provide a more effective and no less rigorous way forward.  Expansion of restorative justice –promised in Ed Miliband’s 2015 manifesto and now repeated two years on-could also offer demanding alternatives to prosecution and prison.

On prisons themselves, the 2017 manifesto promises an end to future prison privatisation and a review of Community Rehabilitation Companies but not an immediate return to public ownership of prisons or probation bodies currently run for profit. More and better trained prison staff, personal rehabilitation plans for all prisoners and a review of mental health services in prisons are proposed as ways of reversing the woeful deterioration of conditions in recent years. Sensible of course but radical enough? After all we have heard before that “the prison service now faces serious financial problems. We will audit the resources available … and seek to ensure that prison regimes are constructive and require inmates to face up to their offending behaviour”. That was New Labour in 1997, not so different from today.

Manifesto Destiny. Criminal Justice Ideas for the 2017 Election

Chances are we won’t get much about criminal justice in any of the manifestos. But Labour’s surprisingly Blairite promise of 10,000 more police officers suggests that domestic policy may not be entirely absent from the parties’ offerings to the electorate.  It’s a reminder too of how strongly received wisdom shapes policy development in the field, even in a radical party committed to transforming the country. Would not 10,000 mental health workers do more to address the crisis of well being which brings so many into conflict with the law – and free up police time to prevent and respond to more serious harm?    

Here are five criminal justice priorities I’d like to see featured:

1) Sensible Sentences

The prison population has been fairly stable since 2010 at about 85,000, but with a 25% fall in the numbers sentenced for serious crimes over that period, we should really have seen prison numbers go down. The reason they haven’t is that the proportion of cases being sentenced to prison has risen – from 22% to 27% -as have average sentence lengths for almost all types of crime from 16 to 19 months. Sentences have got longer not only for violent and sexual offences but for theft and drug offences too. Further sentence inflation is neither desirable nor manageable. We will introduce a strong presumption against short prison terms and require the Sentencing Council to produce a wider range of guidelines, based on fuller consideration of the cost and effectiveness of different sentences. Stronger limits will be placed on courts preventing them from exceeding guideline levels and new pilot problem solving courts will be encouraged to impose less severe punishments when it is in the interests of rehabilitation to do so.

2) Developing Youth Justice

Youth justice has offered a ray of light in penal policy, with big reductions in numbers in court and in custody in the last ten years. Now’s the time to extend the successful leadership of the Youth Justice Board and the multi-agency approach of Youth Offending Teams to the young adult age group of 18-21 year olds. For the under 18’s, it’s time too to phase out Young Offender Institutions and Secure Training Centres  and expand the number of small secure children’s homes – the only model that has proved consistently able to offer appropriate and constructive regimes for young people in custody. Responsibility for meeting the entire costs of custody for under 18's will be transferred to local authorities and Police and Crime Commissioners (PCCs). In due course local bodies will be able to commission secure and other accommodation for under 18’s rather than simply purchasing what is currently available

3) Promoting Probation

Half of the £1.3 billion being used to build four new prisons, will be used to invest in community based alternatives to custody for the 50,000 people a year given short prison sentences – through more investment in supervision provided by probation, Community Rehabilitation Companies (CRC’s) and other organisations; by improved dialogue with judges and magistrates and better links with the public. Priority will be given to keeping women and people with mental health problems out of prison environments and strengthening the availability of community and residential treatment services instead. We will conduct a genuine and wide ranging review of Transforming Rehabilitation to ensure that when current CRC contracts end, a suitable model is in place for a reinvigorated probation service.

4)  Safeguarding Prisons

We will redraft the Prisons Bill with much stronger duties on the authorities to provide decent conditions, avoid overcrowding, and treat prisoners with humanity, fairness and respect for their dignity. Prisons will be required to ensure proper staffing ratios based on 2010 levels and a task force established to drive developments in education, vocational training and work in prisons. Mental health services will be strengthened and a programme to develop life coaching for prisoners expanded across the estate.

 5) Rehabilitation Devolution

We will develop a Justice Reinvestment Taskforce to identify  the best ways of transferring responsibilities for justice services to a more local level, with a view to devolving budgets by the end of the parliament.  Police and Crime Commissioners will be invited  to chair new Justice and Safety Partnerships with CRC’s, local government, health and judicial participation which would give a greater regional voice in the system and create a commissioning vehicle to which criminal justice budgets might be devolved. Pathfinder initiatives will be agreed with Mayors in London and Manchester through which savings resulting from reductions in prison numbers will be reinvested in prevention and rehabilitation programmes.

There is a lot more that a new government should do- not least committing to take seriously David Lammy's recommendations on race equality in criminal justice; expanding the availability of Restorative Justice and considering a new approach to illegal drugs. But action on these five might help bring to an end what has been an increasingly unhappy period for criminal justice in England and Wales.    

What's on the criminal justice cards from a new May government?

More shocking revelations on prisons, this time from the Council of Europe’s Committee for the Prevention of Torture who visited a range of detention facilities last year-Pentonville and Doncaster prisons and Cookham Wood YOI (as well as police stations, immigration detention centres and closed psychiatric hospitals).  The report catalogues the depressing if familiar reality of prison conditions, finding none of the three establishments safe for prisoners or staff. The CPT found that locking children alone in their cell for all but half an hour a day amounts to inhuman and degrading treatment. And they were concerned that incidents of violence was under recorded, particularly at SERCO run Doncaster.

It’s possible that the report will be the last of its kind. If Mrs May fulfils her wish to withdraw from the European Convention on Human Rights, a new Conservative government will find itself with a BREXIT 2 to negotiate. The Council of Europe may be the smallest of beer compared to the EU but it’s the continent’s leading human rights organisation. We may find ourselves sharing observer status with Belarus. But at least we won’t have to worry about letting prisoners vote.

What else might we see from a new Conservative government on the justice and prison front? There’s quite a bit from the 2015 manifesto that hasn’t been achieved. The promise of new technology is as yet undelivered, whether to monitor offenders in the community, to bring persistent offenders to justice more quickly or allow women with small children to serve sentences in the community. Perhaps thankfully there is no sign of the new semi-custodial sentence for prolific criminals, allowing for a short, sharp spell in custody to change behaviour; nor of extensions to the scope of the unduly lenient sentence scheme. Will we see these commitments reappear in this year’s manifesto or will they be quietly shelved? What will happen to plans for increasing penalties for driving offences which result in fatalities?

At least one commentator thinks that the 2015 manifesto is the enemy Mrs May wishes to slay. If he is right, there is no guarantee that the prison reform measures contained in the Prison and Courts Bill will necessarily reappear. For those with long memories, the post 1992 Major Government rapidly undid the liberal justice reforms it inherited. The counterpoint of recent headlines about prisons no longer being places for punishment and violent crime surges could easily prompt  a harder approach on criminal justice in the new manifesto. Despite the flowing oratory of Michael Gove and process re-engineering of Liz Truss, the ghost of Michael Howard has never been far from the feast. While Mrs May is difficult to pigeonhole, I've always doubted whether  her appetite for rehabilitation and redemption will have been sharpened by six years in the Home office- famously described by Peter Hennessy as the graveyard of liberal thinking since the days of Lord Sidmouth. 

The CPT emphasised that unless determined action is taken to significantly reduce the current prison population, the regime improvements envisaged by the authorities’ reform agenda will remain unattainable. I wouldn’t put money on that. The best we can hope for is perhaps a steady state. Although if I were a betting man, I’d put a flutter on the dismantling of the Ministry of Justice.  It’s quite conceivable that prisons and probation will return to the Home Office. The Tories have always thought of the MoJ as a European construct ill- suited to our traditions. Prepare to welcome back the Lord Chancellor’s Department.