Taking Stock: More Local Control of Probation ?

Among its wonderful wealth of exhibits, Oxford’s Pitt-Rivers Museum includes a set of village stocks, originally placed on the footpath in College Lane Littlemore in March 1857. They were made especially for the punishment of a man sentenced by local magistrates to spend 6 hours in them.

The wooden stocks were built by one Richard Humphries, “Village Constable and Carpenter” and it was this that came to mind while reading Frances Crook’s powerful argument against Police and Crime Commissioners assuming responsibility for the probation service. Frances thinks it would be wrong “for an authority that is charged with overseeing policing with its investigative role also to oversee the infliction of a sentence. This creates an inherent conflict of interest, particularly if there is any element of private profit-making bodies involved.” Constable Humphries seems to prove the point.

Yet I can see greater merit than does Frances in more devolved organisational and financial arrangements for probation and indeed prisons. One of the key principles of a Justice Reinvestment approach is giving local people greater responsibility for preventing and dealing with crime. The hope is that if local agencies must meet the costs of locking up people in their area, they are more likely to take steps to do less of it.

The reconfiguration of probation provides an opportunity to incentivise this transfer of resources away from prison places and into community-based measures for rehabilitating offenders and preventing crime. At any one time, about 100 people in crisis ridden Birmingham jail are serving sentences of six months or less. Probation might work harder to develop credible and innovative alternatives for these petty offenders if they stood to access some of the savings that would result from lowering prison numbers. They might also provide interventions which would enable the police and prosecutors to keep more in the way of minor cases out of the courts altogether. 

Creating this dynamic would require a regional or local mechanism for allocating and shifting resources across the criminal justice piece. I’ve argued that this role could be played by PCCs working with local authorities in Justice and Safety Partnerships.  The Howard League’s 2009 Commission on English Prisons suggested that “with local authorities as lead partners,  .. local strategic partnerships should be formed that bring together representatives from the criminal justice, health and education sectors, with local prison and probation budgets fully devolved and made available for justice reinvestment initiatives.”

There are already tentative steps towards devolution in Greater Manchester and London where the PCC role is carried out by the mayor. But there is a case for going farther and faster. The Strengthening Probation consultation initiative , though purporting to want feedback on proposed changes to the structure and content of probation services is offering  roadside repairs on a vehicle that should be written off.  

In 2009, in arguing for directly elected sheriffs to run criminal justice, Douglas Carswell suggested that a putative Sheriff of Kent, “knowing that he was up for re-election, might rule, that instead of facing jail, shoplifters would be forced to stand outside Bluewater with placards around their necks reading ‘shoplifter’.”  While this is nonsense, there are risks in a localising punishment. But there are opportunities too.

Why we need a new Woolf Inquiry into Prisons

When Lord Woolf inquired into the 1990 Strangeways riot and those which followed, he concluded that prisons need to keep three dimensions in balance- security, control and fairness. The first two requirements had been prioritised at the expense of the third, fuelling the grievances which drove the protests.  The report into the 2016 Birmingham riot, finally released yesterday suggests that it was a lack of control which was key. The prison had seen a deterioration in the use of legitimate authority, chronic staff shortages and a corrupted system of violence reduction (VR) reps- prisoners with backgrounds in organised crime serving long sentences who policed disputes not always using peaceful means to keep order.

Lack of control was behind yesterdays’ decision to take HMP Birmingham back into the public realm- albeit temporarily. The ghastly consequences spelled out in graphic and distressing detail by Peter Clarke in his Urgent Notification letter mark a new low in the treatment of prisoners and have secured a day’s headlines at least. But what next?

There are two immediate questions to resolve. First, why did the Ministry of Justice not intervene earlier? Prison Minister Rory Stewart was told by the local independent monitoring board in May that “basic humanity, safety and purposeful activity were simply not being delivered”, and the prison service’s own on site  monitor  allegedly agreed that prisoners rather  than staff, appeared to be controlling many of the wings.   We deserve to know whether, as Peter Clarke says, someone was asleep at the wheel or whether as Stewart says yesterday’s forceful action follows an” intensive period of Ministry of Justice measures to compel improvements”. 

Second, how far is this debacle down to privatisation? Unions and Labour apart, the consensus is that the question may be a distraction.  I’m puzzled why G4S allowed the prison to descend into chaos and suffer the undoubted reputational damage. There's history of course, with recent scandals at Medway Secure Training Centre and Brook House Immigration Removal Centre  (where an independent inquiry is underway).

Apart from the disgusting conditions and unchecked violence at Birmingham , staff locked in their offices, unwilling to tackle drug misuse, and not knowing where their prisoners were at any given time, doesn’t look good for what is at heart a security company. The G4S CEO chairs the International Security Ligue, an association of private security organisations responsible for defining, establishing and maintaining the highest ethical and professional standards of the private security industry worldwide. If nothing else, he will not have been impressed by the arson attack during the week of the inspection that destroyed nine staff vehicles. The assertion by former Justice Minister Phillip Lee that “companies are currently ripping off taxpayers” also needs proper investigation.

Peter Clarke has argued for a thorough and independent assessment of how and why the contract between government and G4S has failed, without which he sees no hope of progress. The independent investigation should arguably cover the broader question about the role of the private sector.

But, like part Two of  Woolf’s report, the immediate disaster needs to be a springboard for a wider and searching look at the use and practice of imprisonment  in England and Wales. The practical response to the crisis at Birmingham  -to reduce prisoner numbers and increase staff – is a clue as to what needs to be done across the system.  

Headlines and Deadlines

Prisons Minister Rory Stewart is making headlines by offering to resign if his “Ten Prisons Project” doesn’t succeed in cutting levels of drugs and violence. It certainly seems refreshing to hear a minister put his career on the line in this way although I thought I’d heard him say something similar before. He did. Nearly seven months ago he told MPs on the Justice Committee:

“If I am not able in the next 12 months to achieve some improvements in making these prisons basically clean, with more fixed broken windows and fewer drugs, I am not doing my job, and I would like you to hold me to account for that in 12 months’ time”.

It might seem churlish to ask but when should Mr Stewart expect his  performance to be judged? On January 24^th, 2019 a year after his parliamentary offer. Or next August as he proposes today. Either way let’s hope  that the “new model of excellence” –will start to make a  real difference to life on the landings unlike so much of the rhetoric to come out of the Ministry of Justice in the last few years.

Today’s announcement puts more flesh on the bones of the strategy launched by Stewart’s boss last month. David Gauke’s 10 July speech was cleverly timed to overshadow the scathing annual report  of the Chief Inspector that followed the next day.  Is there something similar about the timing of today’s announcement?

Last Friday 10th August, the Inspectorate confirmed a BBC report that it had decided to issue an Urgent Notification (UN)  in relation to HMP Birmingham, following significant concerns raised by their inspection of the G4S run  prison . The Inspectorate  tweeted that they would not release any further information about the inspection until they had published the Urgent Notification letter they send to the Justice Secretary explaining their concerns. 

That  letter should be sent within seven calendar days of the end of the inspection on 10th August -so by the 17th of August. The fact that Rory Stewart visited Birmingham on Wednesday 15th as he put it “to follow up on the recent inspection”, suggests it’s been sent.  So why hasn’t it been published?

The protocol between the Inspectorate and the MoJ says the Chief Inspector “will publish an urgent notification letter to the SoS and will place this information in the public domain”. The MoJ document about the process says the letter will be published on the "Trigger Day"- the day the letter is sent.

Its the middle of August and people are away so that might explain the delay. I expect the letter will be published on Monday. If not , it will be legitimate to ask questions about whether the first private prison to be subject to the process is being treated  differently from the public ones which preceded it.

Private Communications

New liaison arrangements between courts and probation services came into force last week.  Much of Probation Instruction 5/2018- which like previous versions have been agreed with the Senior Presiding Judge- describes national and local procedures for ensuring effective communication and dialogue on issues of joint concern and escalation mechanisms when problems arise.  As long as someone knows the difference between the JBG, JDG and JOG, I’m sure it will work well.

Two matters stand out. First compared to earlier protocols it’s pretty Stalinist. The 2016 instruction “was not intended to be prescriptive in the method of exchanging information” at a local level, requiring only a process to provide assurance that the protocol is being followed. The new version even contains a standardised agenda for local liaison meetings in order to maintain consistency although the local judges, magistrates and probation staff will perhaps be relieved that “the degree of granularity or detail required is not prescribed”. My guess is that the arrangements haven’t been working sufficiently well and with ministers wanting fewer short prison sentences and CRCs wanting more community orders something more than a mild refresh was required.

The second point concerns the role of CRCs. I’m probably reading too much into it, but it seems like they now have a seat at the table with sentencers for the first time. In 2014 it was for the National Probation Service (NPS) to liaise between judges, magistrates and providers of probation services, providing  information about the services available in their local area. By 2016, NPS was to facilitate provision of information and presentations from local Community Rehabilitation Companies and Electronic Monitoring Services (EMS) about available provision. In the new arrangements, the CRC and EMS are expected to be represented  at the Crown Court meetings and must be at the Magistrates Court’s .

About time you might think. How can courts possibly have confidence in community sentences if they can’t meet the providers- or see what they do.  The new protocol says both NPS and CRCs should endeavour to meet requests from judicial officers to observe probation (and prison ) work in the local area.  I’m generally in favour of this sort of activity, helping to fund some of it when I ran the Rethinking Crime and Punishment Programme 15 years ago.

The problem is now that probation is provided for profit, CRC’s will effectively be making a sales pitch. They want – and probably need – more customers from the courts. And to the extent that they get them, so their shareholders will benefit.

Judges and magistrates on the other hand must be mindful that the principle of judicial independence extends well beyond the traditional separation of powers and requires that they are and are seen to be, in the words of the Guide to Judicial Conduct- “independent of all sources of power or influence in society, including the media and commercial interests”. The Guide is quite strict, telling judges they should take care in considering whether their name and title should be associated with a public appeal for funds, even for a charitable organisation. “Such an appeal could amount to an inappropriate use of judicial prestige in support of the organisation”. The Guide even suggests it may be inappropriate for a judicial office holder to deliver a public lecture or participate in a conference or seminar run by a commercial organisation.

Magistrates have been aware of possible conflicts of interest in this area. Former Chair of the Magistrates Association (MA) Malcolm Richardson told the Justice Committee last year that “there has been excessive concern on the part of some about building relationships with organisations that have a profit motive. I think that that is to underestimate the ability of sentencers,particularly magistrates, to manage those relationships”.  He may have been referring to those of us who were critical of an ill judged – and quietly abandoned-income generating scheme dreamt up by the MA in 2015 to involve private Community Rehabilitation Companies (CRC’s) investing in the MA Education and Research Network. Or he may have meant his own Association which raised prescient concerns in 2010 about the impact that introducing a profit motive for reducing re-offending might have on meeting the core aims of the criminal justice system. 

It may be that we all need to make adjustments to the realities of private sector involvement in criminal justice- and the obvious benefits of replacing short prison sentences with community orders outweigh footling concerns about  propriety. But maybe not.