Labour Law

 Did this week’s Party Conference tell us any more about the criminal justice and prison policy we might get from a Labour government? Last year’s election manifesto retained that most Blairite of slogans “Tough on Crime Tough on the Causes of Crime” and though the words weren’t used in Liverpool, Jeremy Corbyn continued to express the sentiment. For the leader, 10,000 extra police officers will play “a vital role in tackling crime and making people safer”. But “more police are only part of the solution” alongside investment in young people and communities.

Corbyn parts company from New Labour on the role of the private sector arguing that the G4S Birmingham debacle and a privatised probation service "on the brink of meltdown" shows that what has long been a scam is now a crisis. It’s a scandal, he promised that “Richard Burgon, the next Secretary of State for Justice will end.”

Mindful perhaps of how Jack Straw’s pre-1997 moral repugnance about prison privatisation came to haunt him, Burgon himself pledged only to scrap plans to build new private prisons.  Whether this includes Glen Parva, where work is due to start later this year or future builds yet to be announced will all depend what contracts have been signed in the event that Labour come to power.  The same is true of probation, but here Burgon has suggested that it will all be brought back into the public sector. Lord Ramsbotham’s task force is about how not if. But the key question may be when. Buying CRCs out of newly signed contracts may simply be too costly.

In the here and now, Burgon’s five-point plan to tackle the prison crisis also has pounds signs written all over it- in particular the recruitment and retention of more prison staff. There’s a lot of sense in the demands to tackle overcrowding and end short sentences but Labour are targetting only "super short sentences" of three months or less. That they are  more timid than other parties should not be a surprise. Since 1945, prison numbers have on average risen twice as much under Labour administrations than Tory ones. 

Whatever their magnitude, these changes require concrete proposals to make them  happen. Labour's plan offers the chance of a cross party consensus.  I’d like to see the law changed so that prison sentences can only be imposed when the offending is so serious that a sentence of 12 months or more is justified. That might take prison numbers down towards the 75,000 uncrowded places in the system.

A radical Labour government should go further than that . Four years ago, - it seems a good deal more- along with others I gave evidence to a sparsely attended Justice Committee hearing on Crime Reduction Policies. Two of the five MPs who turned up were then backbenchers Jeremy Corbyn and John McDonnell. Corbyn showed himself to be a fan of the Justice Reinvestment approach promoted by the Committee some years earlier.  “ If the crime rate falls", he observed,  "the prison population falls and there are greater resources available for reinvestment in crime reduction policies-a wholly virtuous circle. It was a great idea”. He was right, and it still is.

Spurr's Relegated

   A few years ago, I attended a leaving do for a NOMS official with whom I’d worked closely. Michael Spurr paused his generous speech a couple of times as he wanted to be kept updated about a hostage taking incident.  His warm words and care about realities on the ground- in this case thankfully resolved peacefully- show why he has been such a well-liked leader in the prison service.  Having worked his way up from the wings at Armley Jail, few know or care more about prisons in this country. But there’s no getting away from the fact that his period in charge has coincided with their catastrophic decline.  The probation service has all but been destroyed and the oft and much heralded development of electronic monitoring something of a fiasco.

How much responsibility should Michael bear for these failings? Not much is the emerging consensus. I agree that the lion’s share of the blame for the deterioration of prisons lies with the first three Justice Secretaries Spurr served as NOMS CEO. Kenneth Clarke offered enormous Departmental savings to the Treasury predicated on prison population falls that he could never deliver. Chris Grayling made a Faustian pact with Unions resulting in much lower levels of staffing as an alternative to privatisation as well as signing unsustainable maintenance contracts for prisons. Michael Gove’s lofty rhetoric of redemption merely acted as a distraction from the growing problems of safety and control in many jails. (Unsurprisingly an evaluation of Gove’s six Reform Prisons due this summer has not materialised)

Michael fared slightly better with his second trio of Lord Chancellors, particularly the underrated Liz Truss who managed to obtain much needed funds to recruit more staff. Davids Lidington and Gauke have continued a pragmatic approach to repairing the enormous damage inflicted by their predecessors. But Gauke has now decided that the uncomplaining Spurr should be relieved of his duties. Maybe last week’s POA action has prompted the move.

I have no doubt that Spurr will have spoken truth to power when giving advice about policy options, but as Julian LeVay has argued, his job was then to implement whatever Ministers decided. Could he have done more to blow the whistle about the likely consequences?

As accounting officer, Spurr might have sought ministerial direction about the feasibility of some of the measures he was asked to implement- particularly the probation reforms whose risks were so widely voiced in and outside government.  It’s worth recalling that it was warnings about the consequences of overcrowding made by Spurr’s predecessor Phil Wheatley which forced Labour ministers to introduce a temporary early release scheme in 2007.  I hope Spurr and the Permanent Secretary gave clear and explicit warnings about the impact of staffing cuts on violence, self-harm and disorder in prisons. If ministers ignored them, shame on them. But maybe that advice was not given with sufficient force.

In 2016 the National Audit Office found that Permanent Secretaries appear to lack confidence to challenge Ministers where they have concerns about the feasibility or value for money of new policies or decisions, not least because standing up to Ministers is seen as damaging to a civil servant’s career prospects. That’s nothing new. I remember when Kenneth Clarke dreamt up the absurd idea of Secure Training Centres for 12 year old persistent offenders, we officials hoped the Permanent Secretary might intervene, joking that he was “keeping his powder dry”. When he reluctantly attended a meeting with Clarke, the PS said virtually nothing other than berating me afterwards that my submission was too long.

So what are the lessons for Spurr’s successor?  Prisons need a Whitehall heavy hitter able to stand up to ministers more than they do a knowledgeable and experienced practitioner. Someone like Simon Stevens who has carved out some freedom of manoeuvre as head of the NHS .  And whether Probation should stay linked with Prisons should be carefully considered. Probation has not gone well in NOMS or HMPPS. I'd devolve it but lets see what the consultation brings.

State of Emergency

Should we think of prison officers as emergency workers? This week’s new law creating tougher penalties for assaults on such workers certainly does so. The categorisation seemed a bit odd to me- what about probation staff or youth workers who don’t make the list? They get thumped – or worse- from time to time- I got a head butt from a lad on Intermediate Treatment back in the 80's. Anyway, I concluded that philosophically, it might be quite helpful to think of imprisonment as an emergency – an abnormal and harmful situation which we should do everything possible to prevent, minimise and help sufferers to recover from.  

This week’s warning letter from the Chief Inspector of Prisons about HMP Bedford describes a more straightforward emergency in terms of immediate risks to health, life and property. The horror stories include a prisoner luring rats into his cell and killing them- an amputee trying to stay clean by splashing water on himself from the sink- and frightened or incompetent staff unwilling to intervene with one group of rowdy prisoners or acceding to unreasonable demands from another to get them back into their cells.  Peter Clarke found attacks on staff – some serious- taking place at least every other day and even more frequent incidents of self-harm among prisoners.  It's little surprise that this has proved a last straw for the Prison Officers Association who have flirted with illegality to organise a national protest.   

In his response to the industrial action Prison Minister Rory Stewart claimed that “we are taking the action that needs to be taken.”  But are they? Alongside harsher penalties for violent prisoners, body worn cameras, ‘police-style’ handcuffs and restraints, incapacitant spray and patrol dogs on landings look like a narrow and lopsided remedy. Stewart must recognise this; in Parliament, he described as “a very reasonable proposal” Labour’s idea for an emergency plan, with new Treasury funds, to end overcrowding and end under staffing.  

What should such a plan look like? There’s certainly a need to revise upward the target for recruiting new prison staff. Current plans will not lead to the necessary ratios  But action is needed on the demand side too.

Given the concentration of the worst difficulties in local prisons, the government should move immediately on their proposal to reduce the use of short sentences. We don’t know the makeup of Bedford’s population today but when inspectors last went in 2016, a fifth of prisoners were serving sentences of less than 12 months. Cutting these numbers would free up not only space but officer time in receiving and releasing petty offenders every day.  

Rory Stewart may be right that “something as serious as changing our entire sentencing policy would require primary legislation and a lot of discussion in the House” but while getting that process going, his boss David Gauke, the Lord Chief Justice and new Chair of the Sentencing Council should find ways of encouraging courts to suspend more short prison sentences or convert them into community orders.  

One way might be to introduce a new national presumption against the use of short custodial sentences, recommended yet again this week in a thoughtful report from CREST Advisory. Another might be to reinstate the principle that courts should take overcrowding and other painful realities of prison life into account when determining the punitive weight of a sentence. 

Before sending people off to HMP Bedford, judges from Luton and St Albans Crown Courts and surrounding Magistrates’ Courts ought surely to reflect on the conditions there and the fact that one prisoner in five say they acquire a drug habit after arrival. Local consultation arrangements involving police, prosecutors, courts, probation and prisons - such as those introduced after the Woolf Report into the Strangways riot- need to be reinvigorated.   

Ensuring such arrangements between justice agencies are in place across the country could also help to limit the numbers on remand – over a quarter of prisoners at Bedford in 2016 -and those recalled  for breaching orders- 10% in Bedford .  

There are many longer term measures that need to be taken to stabilise prisons such as providing an opportunity for prisoners to earn earlier – maybe much earlier- release. Rightly or wrongly, too many prisoners feel they have little to gain by abiding by the rules. Again, while legislation would be needed in the long term, some measures along these lines might be introduced without it. Constitutional purists might quibble, but the whole point of a state of emergency is that it requires governments to do things that normally aren’t permitted.

Young Adults in Custody- Time for Some Better Options

Recent years have seen a growing and welcome recognition of the need for a distinctive approach to young adults in conflict with the law. In January, the Lord Chief Justice, noting that “full maturity and all the attributes of adulthood are not magically conferred on young people on their 18^th birthdays”, ruled that the youth and maturity of an offender will be factors that inform any sentencing decision, even if an offender has achieved legal majority. But what about the implementation of those sentencing decisions particularly where they involve deprivation of liberty?

Paradoxically, the government looks set to get rid of the specific sentence of Detention in a Young Offender Institution (DYOI) for 18-20-year olds and the dedicated establishments where the order is served. Prison Minister Rory Stewart has informed the Justice Committee that instead of expanding these establishments to accommodate young people up to the age of 25 as the Committee has proposed , the government  will instead  “consider the continued utility of the DYOI sentence, given the changing landscape of the prison estate…. and explore whether a coordinated approach to young adults within the adult estate might supplement or replace this sentence”.

Successive governments have talked of scrapping DYOI on and off for the last ten years but consultations have come and gone without any clear decision either way. In the meantime the number of dedicated YOIs is down to three- Aylesbury, Deerbolt  and Feltham B, with the overwhelming majority of  18-20 year old men (and all women)  housed alongside adults in mixed establishments.  Recent inspections of dedicated YOIs have been poor  with successive Chief Inspectors reporting both on inadequate safety and dire levels of purposeful activity, even questioning the viability of institutions such as Feltham  being set aside for young adult prisoners.

But as an alternative,  can integrated prisons for those aged 18 plus provide a sufficient focus on the distinctive needs of young adults? Recent inspections suggest not.

 At Hull, while the prison had at least ended the unlawful practice of young adults sharing cells with prisoners over 21, “staff had little understanding of the impact of maturity levels on young adult behaviour and the prison had no specific strategy for managing the significant population of young adult prisoners.” At Wandsworth  almost three quarters of young adults said they had felt unsafe in the prison at some point and fewer than half said that most staff treated them with respect. At high security Woodhill, the fifty  prisoners under the age of 21  were dispersed across the prison. “Not enough was being done” to meet their  needs  and worryingly, inspectors had to repeat a recommendation that young adults located on the vulnerable prisoner unit should have a formal risk assessment and a plan to promote their safety on the unit.  

Young women may fare a bit better but in a rare oversight, last week’s largely positive inspection report on Styal women’s prison made no reference at all  to the small number of young adults there.

Today’s government response to the Justice Committee mentions a range of initiatives which might benefit young adults, but without great enthusiasm. HMPPS has for example “no plans to introduce a routine in-depth assessment of maturity.” Nor is there any sign of the evaluation of the six so-called Reform prisons (due in the summer) in four of which the government " were keen to establish where and how empowered governors can adapt their freedoms specifically to help meet the rehabilitative needs of this cohort of young offenders".

With so many  competing priorities in the prison estate, it is hard to see outcomes improving for young adults in the way that they need to.

Five years ago I argued in a report for the T2A alliance that we need to invest properly in age appropriate institutions  which provide constructive and purposeful regimes, therapeutic help and personal inspiration to enable young adults to put crime behind them. I suggested a Secure College model, shortly before the name was taken up for an ill judged proposal  for under 18's. Such an approach would need more funds; but resources currently spent directly on young adults in custody are less than half what's  spent on under 18’s.  With the number of 18-20’s in custody down to fewer than 5,000, there is a case for a bold initiative to develop something a lot better than the choices on offer now.