Healthy Prisons - A Contradiction in Terms?

Finally published today is the report of an investigation I’ve undertaken into the life-threatening attempted suicide of a remand prisoner at HMP Brixton. Since the disastrous incident in 2010, AC (I can’t use his real name) has been in a hospital having sustained a serious and long-term brain injury. It was obviously a tragedy both for AC and his family.

The incident itself was particularly distressing too for the staff on the wing. AC had barricaded his cell by moving a locker between the bed and the door preventing anyone else entering the cell. Attempts to remove a metal plate which enables the cell door to be opened outwards were frustrated as one of the screws could not be loosened. By the time a locksmith from the works department got it open- almost half an hour after the start of the incident- the damage had been done. 

Much has changed in the prison world in the last eight years- a lot of it for the worse of course. Brixton has a different role as a Category C Resettlement Prison.  Nowadays it receives about 25 prisoners a week all from other prisons, compared to three times that number from court back in 2010. But I hope the findings and recommendations – almost all of which have been accepted – have been of some use there and across the prison estate.  

Re-reading the report which was finished in 2015, it’s clear the case raises three broader questions about the ability of prisons to deal with the many vulnerable men and women they accommodate- particularly those with mental health and or drug problems.

First there’s the inevitable interruption to healthcare which goes with imprisonment. Although AC was not formally diagnosed as schizophrenic, both he and his GP in the community knew his mental health was improved by his taking anti-psychotic medication. After the first few days in Brixton, he never got any during the three months he was there. He was the victim of a “catastrophic lack of clarity about respective responsibilities” for prescribing between the prison-based GP, mental health and substance misuse teams. Following my report, the NHS seem to have taken on board the underlying issues, but it’s quite possible that the other problems I found - poor communication between medical personnel and failure lack of follow up when prisoners fail to attend GP appointments- may well continue to be a risk particularly in busy local prisons.  

Second is the obstacle imprisonment puts in the way of families providing support to prisoners. AC’s sister had been looking after him in the community and visited him regularly in prison. Staff at Brixton failed to acknowledge the key role she played in his care or to engage constructively with her during his period in custody. She tried to warn the prison her brother was heading for a psychotic breakdown via a handwritten note to a nurse.  AC’s community-based GP and solicitor both wrote too - but the response was too little too late. The report adds weight to Lord Farmer’s recommendation that “prisons should be able to show evidence that family or other supportive relationships play a role in intelligence gathering regarding a prisoner’s mental health, drug use (prescription and illicit), propensity to violence and risk to self”.

The way the prison did respond to AC was via the disciplinary system. He was involved in at least two assaults on other prisoners and smashed up his cell. I found that staff showed little interest in identifying what lay behind AC’s behaviour on the wing, for example the nature and extent of his debts. He regularly asked to move wings and was known to smoke tobacco and heroin which incurred costs. But this was a stone best left unturned.

When a serious assault brought AC before an Independent Adjudicator. AC said he was an emotional wreck, was being broken and couldn’t get his proper medication. There was no record of whether this information was passed on to staff.

The sanctions imposed on AC during his time at Brixton may not seem unduly harsh; but loss of canteen, association and television can have significant impact on a prisoner with mental health problems, reducing opportunities for social interaction, diversion and relaxation. I recommended that possible adverse consequences on a prisoner’s mental health should be considered when imposing punishments and forfeitures at adjudications- but remain concerned that this may not always happen.

There are probably many people in prison not unlike AC. He had been remanded into custody following charges of burglary. His first conviction was at the age of 17 and he had several spells inside unable to keep stable accommodation or find regular employment. One of his previous assessments described a man “more comfortable within prison than without”.

Whatever the truth of that, this is a case that surely argues for the creation of a much wider range of custodial, residential and community-based options than currently exist for those remanded for or convicted of offences.  The Female Offender Strategy has proposed a new form of residential centre for women offenders. Do we need to think about new forms of infrastructure for men like AC too?  

Reducing Short Sentences for Women and Petty Offenders: Willing the Means as Well as the End.

At his excellent Bill McWilliams Memorial Lecture in Cambridge yesterday, Professor Rob Canton invited us to consider the case of Rita, a defendant with a long record of theft offences - described indeed by the prosecutor as a professional thief. Rita is a victim too, seemingly trapped in a series of violent relationships with men, with a strong suggestion that she is relieved of her ill-gotten gains by her current partner.  Why Punish? was the lecture’s title and by the end, in respect of Rita and many people like her there seemed no convincing answer. Yes, her behaviour should have consequences but imprisonment, or even an alternative such as a curfew with electronic monitoring look wholly inappropriate in the context of her life.   

Almost all of yesterday’s audience will I imagine have been pleased to hear today’s announcement that the government want to see fewer women in prison for short sentences. There will be a welcome too for the Justice Secretary’s view that “Offenders are part of our society and we must take steps to understand and address the underlying causes of offending, if we are to improve the lives of victims and support offenders to turn their own lives around”.  There may even be cautious optimism that the policy of reducing short sentences should apply to male offenders too. Prison Minister Rory Stewart said as much to the Justice Committee yesterday.

Where there may be more scepticism is about the means to the end. The £5 million earmarked for “intensive residential support options” which will act as alternatives for women is clearly not enough. Much more of the funds originally set aside for the thankfully abandoned community prisons should be reinvested to provide more comprehensive coverage.

But there will also need to be measures to ensure courts make proper use of community based alternatives. The Female Offender Strategy is very weak on sentencing, promising only that the “MoJ will work with judges to develop our understanding of what more might be done to ensure that the particular risks and needs of female offenders are addressed effectively in the court, and to ensure that courts receive all necessary information to inform the sentencing process”.  

Extraordinarily there’s no mention of the Sentencing Council which makes Guidelines for courts. Lord Phillips, who chaired its predecessor body wishes he had prepared a comprehensive set of gender specific guidelines. The current Council should rectify his oversight.  As well, they will surely need to look again at their forthcoming guideline on sentencing for breach offences which could lead to more rather than fewer short sentences.  More fundamentally I’d like to see the law changed so that previous convictions do not automatically make offences more serious. That’s the only way of keeping petty persistent offenders the right side of the custody threshold. 

Will this be done? I have my doubts after Rory Stewart's puzzling remarks in Parliament yesterday. He told MP's he'd like the prison population to go down but it was time to be realistic and accept that was not going to happen because of lack of public support. Instead he's planning for a prison population of 93,000 by 2022. This is far in excess of the 88,000 currently projected - an estimate that doesn't take account of recent falls. 

Why did he say that? Maybe he know something we don't and some ugly sentencing reforms are in the pipeline for serious offences. Maybe he wants to persuade the Treasury to let him keep the prison building money to give some headroom in the system to eliminate overcrowding. This is a plan the Conservatives had before the 2010 election before the Crash intervened.  Or perhaps Stewart wanted a get-tough headline in advance of the women’s strategy today. The Daily Mail’s “Green Light for Criminals"  headline, based on his comments about short term prisoners, hasn’t obliged.

Either way Stewart shouldn't give up on reducing prison numbers. There are lots more things he could do than perhaps he realises. 

As for the Mail, as far back as the 1990s, its  editor Paul Dacre  said that on crime his paper's role was "to articulate the concern of its readers and thereby harden the response from the Tory administration". Dacre is going soon and his approach to criminal policy should follow him out of the door. 

Questions for the Minister

I don’t know if its still the case, but people appearing before Parliamentary Select Committees used to get a friendly phone call a few days in advance telling them the likely lines of questioning. Nothing is put in writing and nothing prevents MPs straying from the script. But what are Prison Minister Rory Stewart and his head honchos from the MoJ likely to get asked today?

The hearing is the first in the Committee’s Inquiry Prison Population 2022 : Planning for the Future, an important attempt to look at the current and expected use of prison in the next five years and the Government’s plans for managing it.  I’d expected the committee to start their inquiry by taking evidence from other witnesses – the Prison service, ex Prisoners, Unions and Professional bodies, academics and prison reform groups- so that the MPs could confront the MoJ with the findings at the end. Instead the MoJ are getting their retaliation in first.  Their questions are likely to relate to three main  topics

a) The size of the prison population.  There’s been a welcome fall in prison numbers to under 83,000 and while this partly results from increased use of early release on Home Detention Curfew, the much bigger driver has been a 25% reduction in people being sentenced since 2010.  Prisons should have seen a much greater dividend had it not been for a rising proportion of offenders being sentenced to prison and an increase in sentence lengths. MP’s will want to ask Stewart if he is content with this sentence inflation and the role the Sentencing Council has been playing. They will also want to ask what he and his boss David Gauke are doing to reduce the use of short prison sentences. This will inevitably raise questions about the Probation Reforms. MPs will want to know if there is truth in reports that contracts are being redrawn 2 years early; and what the MoJ makes of the Committee’s recommendation for a speedy review of the whole sorry TR mess.

b) The prison building programme. The MoJ has £1.3 billion to spend on new prisons and MPs will want an update on how this is being used and how many new prisons will actually be built and when. The original idea was 10,000 new places in nine new prisons but expect to hear that its been scaled back. MP’s should ask whether the MoJ aim to end overcrowding and by when. The prison system at the end of May was designed for 78,000 – with only 75,000 places available for use. Is the strategy to increase the supply of places or reduce demand for them?   Rightly, the Justice Committee has historically pressed for the latter solution and should continue to do so.

c) Prison Performance. Since Mr Stewart appeared before the committee in January’s hearing about HMP Liverpool, two prisons- Nottingham and Exeter have been subject to the Inspectorate’s Urgent Notification Procedure and others- Bedford and Winchester among them – placed in some sort of Special Measures. MP’s may want to know what the Special Measures status entails and how the need for additional specialist support is decided and funded. They may also wonder about some sort of early warning system about failing prisons. Stewart expressed gratitude to the chief inspector for identifying the urgent attention required at Exeter.  Don’t ministers and the prison service need to get ahead of the game themselves on prison conditions?

There are a few additional points that the Committee may be tempted to raise. Experience of the new units for extremist prisoners; the new Youth Justice minister’s links with SERCO; the slow pace of recruitment for a new Prison and Probation Ombudsman; early experience of the Parole Board’s summaries of hearings; plans for Secure Schools.  There  is also the matter of the long awaited Women's Strategy  and the action resulting from David Lammy's review on race and criminal justice- both issues which arguably deserve a specific hearing in due course. 

But today, while MPs may be tempted to roam widely, they’d be better off pressing on the core questions of population, building and performance.   

Prison Reform around the World: The Need for an Alternative Approach

The international community has been showing welcome interest in how to improve prisons. A new International Committee of the Red Cross (ICRC) publication Towards Humane Prisons sets out principles for prison design which complement the technical planning guidance produced by the United Nations Office for Project Services (UNOPS) in 2016.   The last three years have seen the UN’s Office on Drugs and Crime (UNODC) publish handbooks on managing high risk and violent extremist prisoners, developing prison-based rehabilitation programmes and combating corruption in prisons. Civil society organisations have been active in producing guidance documents on matters such as tackling the mental health needs of prisoners, and undertaking inspections after serious incidents have taken place in prisons.

One important driver of these developments has been the Nelson Mandela Rules (NMR) - revised standard minimum rules adopted by the UN General Assembly at the end of 2015. Both the lengthy process of revision and the launch of the rules have helped to raise the profile of the harsh and damaging prison conditions which prevail across much of the world. The NMR themselves have highlighted the need for countries to modernise their prison laws, invest properly in infrastructure and personnel and improve training for those who work in prisons.

If prison reform activities are to stand any chance of success, what’s needed now is a similar exercise in respect of alternatives to prison. As the ICRC guide puts it “Considering the human, social and financial costs of detention, prison should only be used as a last resort and that alternatives to detention should be more seriously explored and developed”.    Penal Reform International’s latest Global Prison Trends study reports that the use of non-custodial measures has expanded in recent years, particularly for low-level offending; but crucially it points out that there is not necessarily a correlation between reducing prison population rates and increasing community sanctions.

While many countries have fines, probation, community service or suspended sentences on the books, their use by the courts and implementation on the ground vary enormously. Alternatives to pre- trial detention for suspects awaiting trial and systems of parole for prisoners serving long sentences are also patchy, often failing to play the role they should. 

There are international norms on alternatives in the form of the UN Standard Minimum Rules for Non-custodial Measures, the so called Tokyo Rules, dating from 1990. These aim to promote the use of alternatives to prison, provide minimum safeguards for persons subject to them and encourage greater community involvement in the treatment of offenders. But the Tokyo Rules are little known and need both publicising and updating.

There is scope for instance in reflecting recent developments in restorative justice which enable offenders to make amends to the victims of their wrongdoing; and for revised rules to stress the need for better ways of dealing with alleged and convicted offenders with special needs and vulnerabilities- such as people with mental health and addiction problems whose conditions can be worsened by imprisonment. The current rules make no mention of electronic monitoring – or tagging- which plays a growing role in many jurisdictions.  

If there’s a strong case for targeted revisions to the Tokyo Rules, there’s also an opportunity coming up. The 14th United Nations Congress on Crime Prevention and Criminal Justice will be hosted by the government of Japan in 2020, albeit in Kyoto rather than the capital city.  But 30 years after the rules were adopted, it would be a highly appropriate forum in which to promote the use of alternatives to prison. There may not be time to complete any revision process by then, but there is certainly time to start one

The draft agenda for the Congress includes an item on integrated approaches to challenges facing the criminal justice system. Of these challenges, prison overcrowding is among the largest. It’s not one that can be solved by prison building, however humane that may be.   

Yet More Council of Despair

Hopes that penal policy might be taking a less punitive turn took a blow this week when the Sentencing Council issued its long awaited guideline on dealing with offenders who fail to comply with court orders in the community. The Council accepts that the guideline, in particular the part on Suspended Sentences, Community Orders and Post Sentence Supervision “could have an impact on the prisons, with more offenders being sent to custody than at present”.  They don’t really know because the resource assessment the Council is required to do is even more of a guesstimate than usual. But why at a time when ministers are looking to encourage alternatives to short prison sentences is the Council requiring courts to adopt a more robust approach to sentencing of breaches?

A generous interpretation might be that stronger consequences for non- compliance will give courts and the public greater confidence in community based alternatives to prison and help to expand their use. More likely is a view that flouting court orders simply deserves less tolerance than it has in the past. It’s more cocking a snook at authority requiring punishment rather the sign of a problem needing to be solved. 

The less offenders adhere to their sentence, the greater the punishment will be. Under the new guideline, wilful and persistent non-compliance with a community order will result in a prison sentence -even where the original offence was not serious enough to merit custody.

To be fair, after consultation, the final guideline now encourages courts to take into account factors such as an offender’s mental health difficulties or personal circumstances when deciding if their level of compliance hitherto should be categorised as low, medium or high. It’s not quite clear how courts will calibrate the presence of what the guidelines call factors impeding compliance; but the focus on why an individual may not have followed their order is welcome.

Less so the Guideline’s restriction on what courts should and shouldn't take into account when deciding whether to activate a suspended sentence. The law says a court must do this in the event of a further conviction or failure to comply with a supervision requirement “unless it would be unjust in all the circumstances.” The Council doesn’t want courts to consider all the circumstances however.  Yes, they are able to consider any strong personal mitigation, whether there is a realistic prospect of rehabilitation or whether immediate custody will result in significant impact on others. But only new and exceptional factors or circumstances “not present at the time the suspended sentence order was imposed should be taken into account”.

The House of Commons Justice Committee argued in their Consultation Response that faced with sending someone to prison for breaching a suspended sentence, courts shouldn’t have to sit on their hands if the original offence had fallen short of the custody threshold. The Committee were particularly concerned about cases that had been sentenced before the Council issued its guideline on the Imposition of Community and Custodial Sentences, which has sought to prevent courts suspending prison sentences as a tougher form of community sentence. 

It’s hard to believe some aren’t still doing so. Indeed the Sentencing Council Chairman wrote to Judges and JPs as recently as April, because he thought they were. So the Committee’s point still has force.  But the Council won't accept it. 

A second proposal by the Justice Committee has also been rejected by the Council. The Committee thought the guideline should require sentencers to consider whether supervision by the probation services had been of sufficient quality to be effective and take into account “any shortfall in the quality of supervision by probation services which may have contributed to the likelihood of a breach”. The Transforming Rehabilitation reforms have probably produced many such cases.  

Some probation failings will of course have allowed errant offenders to escape breach proceedings for too long. But in almost half the cases inspected in an enforcement study, the person under supervision had not received a sufficient induction, with the Community Rehabilitation Company  then missing the opportunity for early, effective engagement.  The Council take the view that “assessing the quality of offender management is not within the remit or responsibility of sentencers and do not agree that the guideline should impose such an exercise”.

Such a view is symptomatic of the narrow approach to their remit that the Council has often taken. More worrying on this occasion is the way that they are championing not a fairer or more effective approach but a more "robust" one. The Council was supposed to save sentencing from the politicians not to adopt their language and tone.

Here We Go Again : Another Type of Youth Custody A Step Closer

The ‘How to Apply Guide’ published today sounds like it’s to help young people or their parents get a place in one of the Government’s new Secure Schools. It’s not of course. It’s guidance for organisations who want to run one of two new custodial establishments first proposed by Charlie Taylor’s Youth Justice Review 18 months ago. When the review was published, I thought the schools the least promising of his recommendations. Despite mountains of evidence about the ineffectiveness of custodial institutions, Taylor seemed to feel obliged to invent yet another species.  

Approved schools, Detention Centres, Borstals, Youth Treatment Centres, Young Offender Institutions (YOIs), and Secure Training Centres (STCs) have all started with high hopes and proved more or less expensive failures. The Coalition’s absurd plan for a huge Secure College was quickly killed off by Michael Gove before he announced Taylor’s review.  So good on the Ministry of Justice for setting out a vision and consulting on the shape of their “schools with security”. But the nagging question remains. Do we really need another variant of a fundamentally failed model?

Of course, there's a strong case for a very different youth secure estate than the one we have .  It should be smaller, no more than 750 places in my view, and  comprise a network of  high quality establishments "akin to special residential schools or secure children's homes" (to quote from the vision document ). No children should be  in prison establishments.  But are plans for secure schools a step in that direction - or will they, like STCs before them, serve as much to replace existing therapeutic units than to shrink the use of prison places?

The new schools will be run as Academies, but reassuringly providers will be not for profit company with a licence to run a Secure Children’s Home (SCH) and integrated with a health provider. Justice Minister Phillip Lee wants a more innovative and tailored approach to the care and education of young people. Back in the 1990s, that’s just what STCs were supposed to provide although contracting private sector security companies was always an unlikely way to achieve it. This time we are promised “child-focused providers in full control of the education they deliver”.  

The question therefore is why not simply extend the number of places in SCHs rather than create a rival to them ?  The quality of care they provide for children in custody is far superior to Prison YOIs or the STCs. The number of SCHs has fallen from 17 to 14 since 2010 and the beds from 311 to 254.  More are needed in any event- children whose liberty is restricted on welfare grounds are not uncommonly placed in Scotland due to lack of places in England.   So why not have a coherent but measured expansion of the best we’ve got.

The reason is part money, part ideology. The largest SCH, Aycliffe in County Durham has 42 beds, the smallest just 7. The 70 places in each of the Secure schools could mean lower per capita costs and rightly or wrongly ministers will think the Academy model won’t be saddled with inflated local authority overheads and governance structures. The Ministry of Justice is asking for views on the major cost elements in the schools “to help us to determine the budget.” If respondents are honest about how to meet the ambitions set out in the guidance, the new schools will certainly not be cheap. The MOJ don’t seem to be asking about the appropriateness of the Academy model.

When STCs were proposed a quarter of a century ago, it was argued to be “insane to set up these new centres at the same time as the local authorities are having to close some of their facilities for disturbed young people in communities throughout the country”. That was then Shadow Home Secretary Tony Blair.  It didn’t stop his government extending the insanity. But maybe this one should.

It should also think seriously about Blair's more fundamental warning that ‘the last thing you want to do with those persistent young offenders is to put them alongside 40 or 50 other persistent young offenders and lock them up for a considerable period of time'. Charlie Taylor had some ideas about reducing numbers : an end to short custodial sentences, fewer secure remands and stronger restrictions on detention for under 16s. Why not consult on that as well?