The Mystery of the Prison Ombudsman and the Justice Committee

The new Prison and Probation Ombudsman (PPO), Sue McAllister started work yesterday. It’s an important role which had its origins in the Woolf Report into the 1990 Strangeways riot. Its remit has extended over time – it now adjudicates complaints from people on probation and immigration detention as well as prisoners. Since 2004 the PPO’s office has investigated all deaths in prisons, probation approved premises, immigration detention facilities and secure training centres.

The terms of reference for the post say that the PPO is appointed by the Secretary of State for Justice, following recommendation by the House of Commons Justice Select Committee. In this case, for some reason there has been no recommendation by the Justice Committee, at least not publicly.

There was a pre -appointment hearing on 17 July, just before the Parliamentary recess. Ms McAllister was given a good grilling over her use of social media and attitudes towards private prisons amongst other things. Committee Chair Bob Neill closed the hearing by saying “We will consider our report”. But there isn’t one.

According to the Liaison Committee (whose membership consists of the chairs of the House of Commons select committees) one of the purposes of pre-appointment hearings is “providing public reassurance…. that those appointed to key public offices have been selected on merit”. Another is “providing public evidence of the independence of mind of the candidate”. Maybe these purposes could be said to have been achieved by the hearing itself, the transcript of which is available for anyone to read. But it’s highly unusual for a Committee not to publish a view about whether a preferred candidate is appointable or not. 

I have no reason to doubt Ms McAllister's capability to do the job- although in the future I do think there is a case for this post to be held - like the Chief Inspector post -by someone who has not worked for the Prison Service. The perception of independence is crucial.  

And I do think the process of appointment should have been done properly. Maybe the Committee forgot about the report over the recess and hoped no one would notice. Or maybe they couldn’t agree.  Whatever the case, failing to publish an opinion looks as if the MPs have not discharged their responsibility. Mr Neill should explain why.

Security Concerns

Three NHS England reports earlier this month have documented how children can be locked up- basically in prisons, hospitals, secure training centres (STCs) and children’s homes. The Scoping Study on Secure Settings for Young People didn’t look at police cells (presumably because of the shortness of the stays) or immigration detention (thankfully tiny numbers of under 18s). And it didn’t go into placements of children with serious disabilities who may be deemed to have their liberty deprived. But it’s a useful analysis of the 60 closed facilities in England, Wales and Scotland, the 1322 English children they detained in September 2016, and the views of parents and of professionals about the various placements.

Among those views was the perception that despite the notional clarity of the different components of secure care, “detained young people in all types of setting often shared similar, disadvantaged backgrounds and characteristics, including mental health difficulties”. The census of young people found high levels of mental health morbidity in both youth justice and welfare placements, many looked after children in all the placements and lots of young people in welfare placements with a history of contact with youth offending teams.

While this overlapping profile of need argues for a streamlining of secure provision, the government are instead embarking on the creation of yet another type of custody- the secure school.  There may be something to be said for reconceiving “youth prisons as schools”, as Charlie Taylor’s 2016 review urged the government to do. But the poor track record of all kinds of closed institutions for young people (however they are labelled) calls at least for careful testing of any new approaches.

Former Justice minister Phillip Lee got this, telling the Justice committee last year that the secure schools idea is a pilot, which if proven a success should be rolled out across the country. By contrast, Lee’s successor Edward Argar has already concluded that “Secure Schools represent an entirely new approach to managing youth custody and are the best solution to address violence in the youth estate, improve outcomes for children leaving custody and reduce the unacceptably high level of reoffending in this sector”. Such hubris is hardly justified by the history of custodial establishments.  

Even if they work better than previous incarnations, I very much doubt there will be the funds for secure schools “to replace most existing youth custodial provision” as Charlie Taylor’s review expected. For one thing, ministers will point to the fact that Young Offender Institutions (YOIs) are improving slightly – although the claim in the 2017-18 Prison Performance Ratings that they are all “exceptional or meeting the majority of targets” is misleading as Feltham (and Parc) where performance is “of concern” are not categorised as YOIs.

The Government also faces calls to use scarce resources to reverse the recent decline in the number of beds in secure children’s homes (SCHs) and increase the number of mental health beds for young people. 

The NHS England study found 62 English children placed in secure units in Wales and Scotland and I understand there are often 20 plus children on a waiting list for a secure bed. A dismayed, frustrated and outraged judge has recently called the unavailability of appropriate secure placements for a 16-year-old from Bromley “a wholly unacceptable situation”, echoing LJ Munby’s warning last year that as a result “we will have blood on our hands”. There’s no doubt that the quality of care in SCHs is much better than in STCs or YOIs, notwithstanding the Prison Ombudsman’s report about the ineffectiveness of wellbeing checks in respect of two young people who died in SCHs early last year.

The Children’s Commissioner has suggested that one of the reasons for the troubling increase in the use of segregation in YOIs and STCs may be shortages of NHS mental health beds – “sometimes children spend long stints in segregation while waiting for a mental health bed to become available”. If funds are available, then more SCH and health places would seem more sensible than new secure schools. (I struggle to see how the proposed new schools will differ much from SCHs in any event)

But two further lessons emerge from the current debate about secure settings. First, we need a much more coordinated approach to commissioning and governance of secure facilities to break down the silos identified by the NHS England survey. In the Bromley case, the judge sent her ruling to the Secretaries of State for Education and Communities and Local Government; when it was raised in Parliament the Prime Minister said it was a matter for the Health Secretary. At that moment the TV camera zoomed in on the Justice Secretary. A cross departmental secure task force is urgently needed.

Second is the need for investment in a wider range of high-quality alternatives so that local authorities and the youth custody service have more options short of deprivation of liberty. The reduction in the number of children in custody over the last ten years has been a major achievement but further progress could and should be made. In international law, the arrest, detention or imprisonment of a child must be used only as a measure of last resort and for the shortest appropriate period.

I'd argue for a more fundamental rethink of  secure care;  less as a therapeutic intervention and more as a way of holding very damaged and risky young people only for the short periods required to plan effective and properly resourced care in the community.  

The Right Approach to Crime

It’s a quarter of a century since Michael Howard delighted the Conservative Party conference with his 27 measures to crack down on crime. “Let us be clear”, he told 1993’s Blackpool delegates “Prison works. It ensures that we are protected from murderers, muggers and rapists, and it makes many who are tempted to commit crime think twice.” While disappointing activists urging the return of the death penalty and the birching of young offenders, Howard received a two-minute standing ovation- and arguably set penal policy on the baleful 25-year course from which it has yet to break free.

This week’s Conference sessions featuring Home Secretary Sajid Javid and Justice Secretary David Gauke were thankfully very different in substance and tone from Howard’s diatribe against a criminal justice system he thought “tilted too far in favour of the criminal and against the protection of the public”. While one 1993 delegate was cheered for an attack on social workers, judges and some clergymen who 'gain more from the Guardian than the Gospels’, Javid this week argued that the public health approach to tackling serious violence requires contributions from “all the key parts of government, law enforcement and society”.

In similar vein, Gauke expressed his mission as being to reform the way we get offenders “to make the right choice, to reject a life of criminality and take the opportunity to work, accept responsibility and be part of society.”  

He even felt able to tell Tory members that “for minor crimes, custody should only be used as a last resort”- without the conventional counterbalancing tough announcements other than a reassurance that “community sentences should not be a soft option”. But even this will be achieved not – as I had feared- by even tougher enforcement but improved offender supervision. It’s true that  Gauke is cracking down hard on crime in prison – but many will find it difficult to see why the investigations and enforcement to be undertaken by his new Financial Crime Unit are not already being done.  (Opposition wags with long memories missed an opportunity to label it the drones hotline).

Over the long term, you can argue of course that it is precisely Howard’s legacy – and the consequent doubling of the prison population - which has bought the Tories the space to be a bit more progressive on penal policy. David Cameron and Michael Gove’s attempt to fill that space by launching prison reform as “a great progressive cause in British politics” was overblown from the off and has since been derailed by the operational crises crippling prisons.

But while trying to solve these crises, the all too many ministers involved have continued to embrace the aim of creating “a prison system that doesn’t see prisoners as simply liabilities to be managed, but instead as potential assets to be harnessed”. Placing education and healthcare at the heart of youth custody is an example of that. It could have been achieved by extending the number of secure children’s homes rather than creating a new generation of secure schools - an error compounded by choosing an existing Secure Training Centre for the site of the first such school. But there is a lot to be said for the vision.

   

There is no guarantee that the Tories will retain their progressive approach to prisons. Backbenchers include a good number of hawkish voices - 1993 birching proposer Andrew Rosindell is MP for Romford. So for that matter, does the front bench.   Brexit Secretary Dominic Rabb and Chief Secretary to the Treasury Liz Truss have co-authored a book calling for longer tougher sentences in an entirely contracted out prison system. But to be fair neither did too much about it when they held ministerial posts in the MoJ.

That may reflect the fact that, in Cameron’s words, “politicians from all sides of the political spectrum are starting to realise the diminishing returns from ever higher levels of incarceration” and that increasing prison numbers is not financially sustainable, nor the most cost-effective way of cutting crime. But that "penal pragmatism" could change if crime continues to rise, and to rise up the table of public concerns- as it has been doing. Howard told the 1993 conference that the silent majority had become the angry majority and he wanted to make sure that “it is criminals that are frightened, not law-abiding members of the public.”  Criminal justice may have been the first policy area to be infected by populism but that doesn’t mean it couldn’t get another dose.