Review of the Year (2) Prisons

Prisons minister Rory Stewart said today he wished he could lock MPs in the Commons chamber until they produced a positive consensus on Brexit. On reflection, yet another 650-place inner city Victorian jail is probably the last thing he needs in his day job- much as the public might at present support his sentiment. 

From the start of his tenure in January, when faced with explaining piles of rubbish, vermin infestations and degrading cell conditions at HMP Liverpool, Stewart and his boss David Gauke have certainly not ducked the challenge of trying to repair a ravaged prison estate, sensibly eschewing the high-flown rhetoric of their predecessors in favour of a back-to-basics campaign.  

At year end, Stewart told the Justice Committee he believed there are green shoots. Sadly, three weeks earlier, the Chief Inspector of Prisons told  a different tale. In July, Peter Clarke’s Annual Report had documented conditions which “have no place in an advanced nation in the 21st century.” By November, Clarke had seen nothing to give him optimism that any significant corner has been turned. “The violence figures are going in the wrong direction. We still see far too many drugs destabilising prisons. As to living conditions, I have not seen significant improvement in the prisons we inspect”.  

Of course, there should be improvements over time as staff numbers, so recklessly reduced earlier in the decade, increase and the new recruits that stick with it gain experience and confidence. The Inspectorate’s new Independent Reviews of Progress will hopefully document a more positive picture than we’ve seen in 2018- what Her Majesty might call an annus horribilis for her Prison and Probation Service.

Not surprisingly a whirlwind of initiatives has been announced during the year- and some are on the way to implementation. The revamped personal officer scheme (OMIC) has promise and the extension of in cell telephones could improve family contact and cut demand for illicit mobiles. More opportunities for release on temporary licence and enhanced living conditions for prisoners who engage with the regime could encourage positive behaviour as part of incentive schemes to be developed by governors rather than hq . Whether this can add up to a promised "rehabilitative culture" within establishments remains to be seen.

Already underway is the installation of new technology security solutions- airport-style scanners, body worn cameras, and phone-blocking. Dogs are used to patrol landings even in Category B prisons. There is a crackdown on crime in prison, with more prosecutions and tougher penalties for assaults on prison staff. 

In a recent case a prisoner in a Segregation unit pleaded guilty to three counts of administering a noxious substance for three separate potting incidents. Horrible of course, and I don’t know the details - but are three 10-month sentences served consecutively the only way of holding prisoners to account for this kind of behaviour?  More needs to be done to identify what lies behind it. In an investigation I did (published this year), I found debt in prison can be seen as a stone best left unturned by staff .

It’s not clear what’s become of promised changes to security categorisation aimed at isolating gang leaders from their followers. The rollout of PAVA spray looks to be on its way despite the Prison Reform Trust’s well-argued call for a rethink. It's a measure which owes as much to placating the demands of an increasingly frustrated POA as it does to  the success of the pilot scheme. 

In terms of resettlement, the challenges remain enormous. The Employment Strategy reports success in attracting business interest in taking on ex offenders and post Brexit gaps in the labour market could offer opportunities to people coming out of prison. Measures have also been announced to reduce shocking levels of homelessness and rough sleeping though currently limited to pilot sites.  At HMP Leeds, half of prisoners said in the Inspectorate’s survey this year they weren’t getting the help they needed to sort out accommodation, employment and finance on release.  Somehow, the inspectors rated outcomes on rehabilitation and release planning as reasonably good. 

To help fix this, a relaunched Through The Gate service should see 500 extra resettlement staff across all resettlement prisons in England and Wales. Yet the Prison Service cant seem to find a way to avoid the basic difficulties, highlighted by NACRO , created by  releasing prisoners on a Friday. 

2018 saw confirmation that two new men’s prisons will be built at Wellingborough and Glen Parva, both to be run by the private sector. These will provide more than 3,000 places out of a promised total of 10,000 in the new for old estate modernisation programme  Despite the debacle at HMP Birmingham which saw the prison service step in to run it in August, the Government has announced a Prison Operator Services Framework competition suggesting that the private sector will continue to play an important role -under a Conservative government at any rate. The Justice Committee’s hearing into what went wrong at Birmingham is a poor substitute for the full independent assessment  recommended by Peter Clarke. The assertion by former Justice Minister Phillip Lee that “companies are currently ripping off taxpayers” also needs proper investigation.

June’s long awaited Female Offender Strategy thankfully scrapped plans for small women’s prisons but pledged only a small proportion of what they would have cost to fund alternative residential centres. 

Should we expect something similar in respect of plans for new men’s prisons in the light of lower than expected prison population projections and higher pressures on the MOJ budget? There is certainly  case for a much wider range of custodial, residential and community-based options than currently exist for those remanded for or convicted of offences.

Back in January, two weeks into the job, Rory Stewart told the Justice Committee that

“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”.

Sensibly he subsequently bought himself more time (until August 2019) and specified ten prisons on which to be judged. Its HMPPS Chief Michael Spurr who’ll be leaving in the New Year.  Will Stewart be following him out of the gate?

Review of the Year (1) : Sentencing and the Prison Population

The prison population ends the year more than two and a half thousand- one Titan prison worth -lower than it started. That’s partly down to January's revised procedure for Home Detention Curfew. More than 3,000 prisoners were at home on electronic tags last week, 40% more than 12 months ago.  The 3% fall in prison numbers (its almost 6% for women) also reflects a decline in those formally dealt with by the criminal justice system. These have fallen to a record low, with 1.61 million individuals prosecuted or given an out of court disposal in the year ending June 2018.

Falling prison rolls don’t mean courts have become more lenient. The custody rate for indictable offences increased by one percentage point, over the year to June, to 32%- it was 24% in 2010. Average sentence lengths have continued to rise, reaching more than 17 months. The average was 12.6 months a ten years ago. Offenders are more likely to receive an immediate custodial sentence for a knife and offensive weapon offence.

Tougher sentences may mean courts have been dealing with more serious or prolific offenders than previously, but they may also reflect the impact of sentencing guidelines. An independent review of the Sentencing Council published in April confirmed that two major guidelines -on burglary and assault- “have now been shown to have resulted in some unexpected increases in sentencing” which “is bound to create anxiety among civil liberties groups and some criminal justice organisations”. Since then the Council has found unanticipated increases for sexual assault and supplying class A drugs following the introduction of its guidelines -but some decreases or no impact on other offences. It's too early to know about the impact of its more recent guidelines, including the one on breach offences which risks a greater use of prison for offenders who fail to comply with alternatives.  

For offences which can only be dealt with by Magistrates- the least serious to come before the courts- the custody rate fell in the year to June 2018 (from 1.6% to 1.5%). Sentences of six months or less also fell very slightly as a proportion of all custodial sentences but still represent more than half of those imposed over the year. 2018 has seen a growing acceptance of the case for more radical steps to reduce short sentences thanks to the Revolving Doors shortsighted campaign whose main messages seem to have been accepted by ministers. Action has so far  been limited but there is surely scope for it. Of the 5,342 prisoners serving jail terms of less than 12 months at the end of March this year, 30% were for theft -including 985 cases of shoplifting (and 25 of theft or unauthorised taking of a pedal cycle). 50 people each day are sent to prison for a period of a month or less. 

Replacing all short sentences would have a welcome but limited impact on the overall size of the prison population which is largely driven by sentence lengths and release decisions. There is a risk that  changes to the Parole system introduced in the wake of the Worboys case could see serious offenders spending longer inside whether they need to or not. 

In the longer term, the technical job of sentencing should get easier if the Law Commission's consolidated Code is put into law.  Its very troubling that the Lord Chief Justice should report that "on too many occasions, an unlawful sentence is imposed in the Crown Court & the mistake only noticed by a lawyer in the Court of Appeal Office when an appeal (on other grounds) is lodged."

Politically, prisons Minister Rory Stewart warned in June that “as we give more voice to citizens and to victims, almost inevitably we are going to face pressure…for longer and more brutal sentences”.  The Sentencing Council has appointed an external agency to examine issues of public confidence in sentencing, which will hopefully help find ways of avoiding Mr Stewart’s dystopian future.  

Overdoing it with the Pepper

Last month , Prisons Minister Rory Stewart announced that every officer in an adult male prison will be equipped with PAVA – a synthetic pepper spray which can be used to incapacitate violent prisoners. The £2 million investment followed what was described as “a successful pilot”.

The government made no secret of the trial which took place in four prisons, but did not publish the evaluation. Having received it via a Freedom of Information request – well done to HMPPS for responding positively- I can see why.   

For one thing the pilot “was unable to conclusively demonstrate that PAVA had any direct impact on levels of prison violence. Overall violence levels continued to rise across all of the pilot (and comparator) sites during the period, continuing previous trends. When violence did occur, “staff felt better able to deal with it and better equipped to arrest escalation and prevent harm with PAVA”. This seems the main criterion for success.

What’s worrying though is that “some staff were developing an over-reliance on PAVA as a way of resolving conflict.’' PAVA was drawn (taken out of the holster) or sprayed in 50 incidents in the pilot prisons. 18 of these were prisoner on staff assaults and 14 prisoner on prisoner assaults- the kinds of cases the spray is designed to stop. The other incidents comprised eight cases of passive non- compliance, seven of aggressive non-compliance, two of active self- harm and one other (an unspecified “incident at height”).  

The example of passive non- compliance given in the study is: “Prisoner refuses to return to his cell, gripping the landing railings and refuses to move. Officer fears it will escalate to fight with other prisoners.” This is presumably one of the incidents the evaluators mean when they say "staff used PAVA to enforce rules and gain compliance when it was not clearly the last resort or when more time could have been spent talking". 

This is some way from the use of the spray as a “personal protection aid, for staff to use reactively to defend themselves or others against serious attack”- which is what ministers were told it was for. Indeed  a panel who reviewed each of the incidents thought between 2 and 11 (between 4 and to 22%) of the 50 incidents were thought to have fallen outside of operational policy and expectations of professional conduct, and would therefore warrant further investigation. 

While no uses of PAVA were thought to have breached the law, puzzlingly the report claims there is a grey area between use of force that is legally justified and that which is professional and legitimate. Whatever that means, the evaluators estimate there will be a significant number of investigations into inappropriate or excessive use of what some staff refer to as "C&R in a can".

Prisoners and staff expressed mixed views on PAVA’s effect on relationships. Some prisoners had considerable concerns about overuse and procedural injustice, focusing on increasingly controlling and coercive behaviour of staff. Other prisoners saw the introduction of PAVA as necessary.

Staff were positive despite some being affected in 13 of the 33 cases where the spray was actually discharged. One of those described the experience as  "nasty, unbearable, like your skin peeling off, as if you have been acid attacked" Troublingly, in the light of this, "staff played down their descriptions of the impact of PAVA on prisoners, describing it as a minor use of force”.

The evaluation concludes that what is very clear is the need for high quality governance and scrutiny of use of force and the need for clear leadership messages from governors to set expectations of a professional standard of use. Amen to that.

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.

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.

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.