Hercules or Sisyphus? The Task Facing New Prisons Minister Rory Stewart

There’s been reassurance from the Prisons Minister at the House of Commons Justice Committee. In struggling prisons, the most significant facilities management issues are checked up on in Whitehall every week. Although “heavily operational, it’s “all important to delivering a decent regime, and we are getting to that level of detail to make sure this works”.

This isn’t the back to basics approach announced on Wednesday by new minister Rory Stewart but the evidence given by his predecessor Sam Gyimah back in  November 2016.  Given that the squalid living conditions endured by many prisoners at HMP Liverpool – the subject of the latest  hearing- somehow escaped Mr Gyimah’s detailed attentions, it’s not unreasonable to ask whether Mr Stewart will do any better. Reformers are born optimists so let’s hope so. Good for him for taking responsibility for sorting out the prison crisis and offering  to be judged on the results.  

  

 More and more Inspection reports have revealed the scale of the challenge in creating the “modern, more effective, truly twenty-first century prison system” promised by David Cameron. The reality is that it will take a year to repair or replace the cell windows at Liverpool- and that’s if the Prison’s Action Plan is actually followed, unlike the one produced after a 2015 inspection.

Stewart is right to say that the recommendations made by inspectors should drive reform agendas in establishments. He could have added that Independent Monitoring Boards' and Ombudsman's findings deserve greater attention as well- the former in particular as they produce much more frequent reports.  And he’s thinking about whether the Inspectorate itself should be bolstered so it can follow up on itself on the problems it identifies. But is he right about how to achieve change in prisons?

The local failures at Liverpool appear to cast doubt on the idea of giving Governors more and more autonomy but Stewart is fully signed up to the idea. At least twice he used military analogies in describing the prison service. Governors, like Colonels should be left to run their own show under the watchful gaze of Brigadiers who intervene when things go wrong. It’s not an altogether comfortable comparison. Prison staff are not soldiers fighting an enemy. There are plenty of other institutions- schools, colleges, hospitals, which can provide better models for much of what the prison service should be doing. There is always a risk that security, control and justice get out of kilter in a prison. The Committee heard that bosses were so concerned about security following an escape at Liverpool, they ignored mounting piles of rubbish, vermin infestations and degrading cell conditions.

Stewart was dismissive too of grand concerns about sentencing and other abstract policy questions which he thinks have distracted attention from the day to day problems in prisons.  Here he is wrong. As the Council of Europe 's anti torture watchdog has reported following their 2016 visit to the UK, the implementation of the prison reform programme will be unattainable without concrete steps to significantly reduce the current prison population. The Government’s response, published this week? They do not propose to set arbitrary targets for reducing the prison population, but to achieve it via a combination of early intervention upstream and on reducing reoffending after release for those who are sentenced to immediate custody.

Disappointing though that may be, even these modest strategies require a genuine policy commitment from housing, healthcare, education, business and local government. Stewart‘s job is to negotiate that as well as fixing broken windows. Unless he and colleagues find some way to cut prison numbers his task will not be that of Hercules but of Sisyphus.   

Prisons- Solution to Crime or Part of the Problem?

“Prison can become a ripe place for criminal education, serious and organised crime, and radicalisation, rather than rehabilitation”.  Not the words of the Howard League, or Prison Reform Trust but, surprising as it may be, of Chief Constables.  The National Police Chiefs Council’s (NPCC) latest strategy on charging and out of court disposals shows how positive interventions with offenders and victims can be effective alternatives to prosecution or even prison sentences. The Police are right of course. The surprise is only how long it’s taking for a consensus to emerge that the epidemic of drugs, violence and debt within prisons makes them part of the crime problem and seldom the solution to it.  

The NPCC strategy echoes much in Transform Justice’s 2017 report “Less is More” which highlighted the declining trend in the use of out of court disposals to deal with low level offending and made recommendations about how to reverse it. As the Police Chiefs say “anything which can be done to prevent reoffending and increase victim satisfaction is vitally important.” What they call "a whole systems approach" is needed to tackle the mental health, alcohol and drug problems which underpin so much offending behaviour.

The strategy provides an opportunity to breathe fresh life into the moribund “rehabilitation revolution”. Not however in prisons struggling to provide basic and decent care. Or in a probation system on the verge of going bust. But in what the NPCC call early intervention pathways. Conditional out of court disposals, it claims, “can provide rehabilitative opportunities without the significant cost of court time”. There’s an emerging body of evidence to support that claim, from pilot projects in the West Midlands, Durham and Hampshire.  And a good case for working particularly hard to keep certain types of offender out of court and out of jail. In addition to children under 18 for whom diversion has long played a central role, the strategy argues for more alternatives to prosecution for women, young adults and military veterans. As the strategy says, “prison can be a place where there is exposure to more hardened and accomplished criminals.”

The case for diversion is arguably strengthened too by another round of court closures in the offing. Victims and offenders require speedy, local mechanisms for resolving low level incidents. And the police need to free up their investigative capacity to deal with the most serious harms and threats including terrorism, and sexual crime.

The NPCC points out that there’s no new funding for rehabilitation courses or treatment programmes  so forces will implement the strategy “when it is operationally and financially viable”. On resourcing, Transform Justice recommended 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.  But some up front funds will be needed to kick start the process- from the Home Office, PCC's and MoJ.

Reducing demand on the courts should form part of a wide ranging new approach to people in conflict with the law. The Sentencing Council should be recalibrating the going rate for certain offences to address the inflation in sentence length that has taken place in recent years.

It’s both right and necessary that prison numbers are brought down.  The Justice Committee has commenced an inquiry into the subject.  New ministers at the Justice Department should do so as well, looking at all the levers at their disposal to make the system of criminal justice in England and Wales more effective and sustainable. 

Parole Reviews

In the wake of their decision to order the release of convicted sex offender John Worboys, the Parole Board, it seems, will be reviewed. But what exactly will be looked at? Will the review focus, as the Guardian reports, on “how the Parole Board makes its decisions” , leading to “a system overhaul”? Or is it a narrower look at how decisions, once made, are communicated to the public. Whatever its scope, the review will be following on three recent exercises designed to improve the Board’s work.

Making the parole process more transparent was one of the aims of “a comprehensive review of the generic parole process for indeterminate sentence prisoners” undertaken by the Board itself in 2013. One of the proposals was to “improve communications with victims to ensure that they are provided with timely notification of Parole Board decisions, and dates of release or transfer to open conditions where applicable, together with an agreed format i.e. telephone call, email, letter, third party”. Following consultation it was decided that “this proposal will be implemented but actual dates of release will not be communicated to victims”. Given the alleged failure to inform victims about the Worboys decision, - whether this was the responsibility of the Parole Board or the National Probation Service, the new review will probably want to look at this whole area again.

Two years later, the Cabinet Office published a review of the Parole Board as part of its regular scrutiny of arm’s length bodies.  Its 2015 report made one recommendation “to heighten the transparency and openness of the Parole Board, while recognising the nature of its business is at times confidential”. This was that the Board hold an annual open meeting. There have been two such meetings since, but these are not hearings which discuss cases but “an opportunity to see the work that goes on behind the scenes to ensure effective running of the parole system”.  It’s possible that a further one of these so called triennial reviews will be started this year but it won't have the right pace or focus  to meet the demands of the post Worboys moment.  

1n 2016, the rules governing the way the Parole Board works were revised by the Ministry of Justice after the identification by Parliament of defects in the 2011 version. MP’s were involved in approving the new rules which include the provision that parole proceedings must not be made public. But the “negative resolution” approval procedure made it virtually impossible for any MP to challenge this had they wished to. In fact the limit on the disclosure of information about parole was nothing new – it was already in place in the 2011 rules approved by Parliament and in the previous Home Office rules from 2004. The Justice Committee will be looking at the Worboys case but should Parliament should be exercising greater ongoing scrutiny both over the work of the Board and the adequacy of the legal framework governing it?  

Justice Secretary David Lidington has said that his new review will focus on how to allow greater openness about the parole decision-making process and make sure arrangements across the criminal justice system ensure victims are heard. Both are fraught with difficulty.

While the Worboys case is thankfully unusual, it raises some difficult questions particularly about the involvement of victims in the parole process.  How far should or could the right of victims to be informed about cases extend beyond those individuals whose cases led to conviction? Should others, thought to be his victims have been notified in some way about his release? To what extent should the Parole Board have taken into account these additional cases in assessing the risk Worboys poses in the future? How, practically, could they have done  so?  

There are more general issues. As things stand, a victim of crime can provide a statement to the Board and attend an oral hearing to read it if they wish, leaving after they do so.  One thing they cannot say is whether they think the prisoner should be released- and if they do the Board must disregard it. It’s absolutely right that the Board’s focus is on the current and future risk posed by the offender but restricting victims participation doesn’t sit easily with the commitment that they “are heard”.

There are difficult questions too about greater openness. If the Board starts to provide explanations for its decisions, how much information will they place in the public domain? Where a prisoner will live? Their family circumstances? The local community’s attitude towards the prisoner? This is information the Board considers when reaching a decision but its arguable how much should responsibly be shared. Any consideration of increased media access to Parole hearings will need to reflect on the attendance of the press and reporting on proceedings might adversely impact on the participation of prisoners -and indeed victims -in the process.

To his credit, Parole Board Chair Nick Hardwick has already recognised both the case for greater openness and the complexities involved. “So”, he told a conference in November “nothing is going to happen quickly and these are all matters that we need to consider and consult on carefully”.  Following Worboys, his boss has said that decisions will be taken by Easter. Let’s hope it’s not a question of legislating in haste and repenting at leisure.