A Year - and Decade - of Penal Policy

In a curious symmetry, penal policy in 2019 has mirrored the decade as a whole. 

  

The year opened with then Prisons Minister Rory Stewart proposing to abolish short prison sentences, followed by his boss David Gauke giving perhaps the best ministerial speech on sentencing since Ken Clarke spoke at King’s College London just after the 2010 election.

While Clarke’s plans to reduce prison numbers went with him to the back benches in 2012, Gauke’s seem to have departed with him from the Conservative Party altogether. The new Prime Minister wants to toughen up what he sees as “our cock-eyed crook-coddling criminal justice system”. While Boris Johnson’s sights are set on longer periods in prison for the most serious sexual, violent and terrorist offenders, this could easily have the effect of raising the going rate for a much wider range of crimes.

 

Sentencing for serious offenders has become more severe over the decade with the custody rate for indictable offences rising from a quarter to a third and the average length of a jail term for all offences up from 13.8 to 17.4 months. But because of falling clear up rates and prosecutions, the prison population is slightly lower now than 10 years ago. Sentence inflation has occurred in spite of the guidelines produced by the Sentencing Council which marks ten years of operation next year and whose impact leaves much to be desired.  

Johnson’s line has been hardened by November’s dreadful events at Fishmonger’s Hall which tragically cut short the lives of two inspiring young people involved in an initiative to open up educational opportunities for prisoners. A month earlier, former prisons boss Sir Martin Narey had controversially called for prisons to forget rehabilitation, and with the new government pledging  a root-and-branch review of the parole system and talk of shifting responsibility for sentencing, prisons and probation back to the Home Office, the new decade looks set for a repressive turn.

It might have been different. But David Cameron’s hubristic promise of prison reform as a defining, progressive cause for his government disappeared with him and his lieutenant Michael Gove after the EU referendum. While Gove subsequently returned to the May government in other roles, his successors at Justice belatedly abandoned his lofty rhetoric about redemption and instead focussed much needed attention and funds on addressing the major operational crises created by reckless staff reductions and the increasing availability of drugs in prison. Promised new prison legislation has never materialised but controversial measures such as the introduction of incapacitant spray for prison staff are on their way.   

Alongside, the probation service, sacrificed on the altar of privatisation by Chris Grayling in 2014, suffered a widely predicted decline in performance, charted in forensic detail by former Chief Inspector Glenys Stacey.  In May this year, Gauke bowed to the inevitable by announcing the re-nationalisation of probation supervision.

The last years of this decade have thus been spent on urgent repairs to the largely self- inflicted damage wrought on criminal justice institutions. Had the numbers of people sentenced by the courts not fallen by more than 40% in the last ten years, prison and probation services would have collapsed. 

Youth justice has fared a little better- if only because numbers in custody have continued to fall through the decade, with fewer than 800 under 18-year olds behind bars in October 2019 compared to more than 2,000 ten years ago. Black and minority ethnic over-representation among children locked up remains shockingly high and the fall in numbers has not led to better conditions or treatment for those who continue to go to custody. 

Much criticised Coalition plans to build a very large Secure College were abandoned after the 2015 election and it would not be a huge surprise if a similar fate  awaits the new Secure School due to be opened by Christian charity Oasis next year but already postponed until 2021.  Many of the more radical proposals in Charlie Taylor’s 2016 Youth Justice Review were dispatched to the long grass but in the face of decades of experience, the belief in the need for yet another form of youth custody has proved enduring.             

      

Back Home? Why Sentencing, Prison and Probation Should Stay in the Ministry of Justice

The Johnson government is reportedly considering a shift in responsibility for sentencing, prisons and probation from the Ministry of Justice to the Home Office. I’m not altogether surprised; before the 2016 referendum, I heard Michael Gove tell an Oxford seminar he’d like to disband the MoJ (of which he was then Secretary of State), because it was a European type of institution unsuited to British traditions.

There may be a superficial attraction in combining responsibilities for crime and punishment -not only to those who favour a more punitive approach to offending but by those who hope that any Home Office plans for a crackdown would be tempered by the need for the Department to pay for its penal consequences.

But while the MoJ’s governance of criminal justice over the last 12 years may have earned it few friends, progressive reform is much less likely to emerge from our Interior Ministry – famously described by Whitehall- watcher Peter Hennessey as the graveyard of liberal thinking since the days of Lord Sidmouth.

For one thing, according to a book she co-authored in 2011, Priti Patel the current Home Secretary believes that we need to “reverse the tide of soft justice”, ensure that persistent offenders are imprisoned for long periods of time and make prisons “tough, unpleasant and uncomfortable places”. After the Coalition- a Conservative Agenda for Britain- written with four other current government ministers argues that “the primary purpose of our justice system is to protect our society, not to act as a welfare service for convicted criminals”. Current proposals to increase the severity of sentences may not go far enough to satisfy their desire for harder penalties.  

Not all Home Secretaries are so firmly in the Michael Howard Prison Works tradition of course, but responsibility for security and the reduction of crime will often produce penal policy which is at best risk averse and at worst unnecessarily harsh. The Ministry of Justice, whose centre of gravity includes human rights and the rule of law ought to tend to a more balanced approach to the use and practice of imprisonment. Home Secretary Theresa May's joke to Justice Secretary Kenneth Clarke., “I lock ‘em up, you let em out” says something about the departments as well as their ministers.  

     

Consolidating crime and punishment in the Home Office would raise questions about the Parole Board- increasingly a judicial body that would not sit well in Marsham Street; about Youth Justice which many think belongs in the Education department; and about the role of Police and Crime Commissioners.

Ms Patel and her colleagues argue that the role of PCCs should be extended so they are responsible for commissioning custodial and non- custodial sentences for those who are convicted.  There could be some benefits to such a devolved approach if it creates a dynamic to encourage the development of better alternatives to prison and measures to reduce -re-offending. But the government’s belief that public confidence in criminal justice will be restored by longer prison terms make these Justice Reinvestment outcomes unlikely in the current climate.

After the fall of the Berlin Wall, the new democracies of Eastern Europe who wanted to join the Council of Europe had to meet certain conditions including abolishing the death penalty and moving their prison systems to the Ministry of Justice. The latter was to encourage the "civilianisation" of highly militaristic and security focused approaches to detention. The MoJ is now responsible for prisons in all 47 countries of the Council of Europe, except Spain.

In their book, Ms Patel and her colleagues have deplored the fact that an increasing human rights agenda and increasing interference from Europe discourage prison sentences, decrying the Council of Europe’s belief that prisoners should be treated in a way that reflects the normal life of freedom that all citizens generally enjoy. 

Moving prisons to the Home Office could mean much more than an administrative change. It could be a fast and slippery slope to people going to prison not as a punishment but for a punishment.          

    

Which Prisoners Can Vote on December 12th?

December’s General Election will be the first since the UK settled the prisoner voting cases in the European Court of Human Rights. In the Hirst group of cases, the Court found that the blanket, automatic restriction on all convicted prisoners voting in parliamentary elections violated Article 3 of Protocol No. 1 to the European Convention on Human Rights which requires that elections ensure the free expression of the opinion of the electorate in the choice of the legislature. After years of toing and froing, in November 2017 then Justice Secretary David Lidington somehow managed to satisfy the Council of Europe that some very minimal administrative reforms brought the UK into compliance. So where do these leave prisoners’ rights to vote next month?

As before the Hirst cases, remand prisoners (both untried and convicted but unsentenced) will be eligible to vote- there were 9,512 at the end of September 2019. So too will those subject to suspended sentences of imprisonment (about 40,000), prisoners released under Home Detention Curfew (2,809 at the end of last week) and civil non-criminal prisoners detained for matters such as non-payment of council tax or contempt of court. There were 850 non- criminal prisoners at the end of September, but the figure includes people held under the Immigration Act who do not qualify to vote.  The 50 odd fine defaulters in jail are also be able to vote if they wish.

The new group of prisoners who are eligible to vote following the Hirst settlement are those on temporary release from prison- so called ROTL.  Lidington told the Commons in November 2017 that he expected the change to affect up to 100 offenders at any one time, but the basis of the estimate is not clear. In the fourth quarter of 2018, there were almost 99,000 “incidences” of release on temporary licence- involving 4,283 individuals.  On the face of it Lidington’s, estimate looks on the low side.

So will all prisoners subject to ROTL on 12 December be able to vote? To do so they will of course have to register by 26th November. Lidington told MPs that any prisoner wishing to vote would have to satisfy the conditions for registration at a genuine home address. He said that they would not be able to register at the prison and seems to have ruled out registration in a constituency where the prisoners has lived previously, following a “declaration of local connection”. These two modes were available to prisoners eligible to vote pre-Hirst but appear not to be for the ROTL prisoners. Lidington told a fellow Tory MP that he thought it unlikely in the extreme that anybody serving a long sentence could demonstrate in practical terms that they had a continuing home residence other than a prison.

This may explain why the number of prisoners on ROTL who will be able to vote is estimated to be so small. It explains too the puzzling claim in the Government’s report to the Council of Europe that the prisoners who will be eligible “are primarily, as in other countries, prisoners who are serving short sentences”.  ROTL is mainly used in Open Prisons where 80% or more of prisoners are serving sentences of more than 4 years. On the face of it, it’s only a very rare bird- a short term prisoner on ROTL -who will in practice be able to vote thanks to the Hirst judgement.  

Guidance was sent to Prison Governors last year about the new arrangements – which I have not seen so I may have misunderstood what has happened. It's quite possible that once MPs had been placated, a more sensible set of arrangements have been put in place under the radar. But there seems to be no revision to the Prison Service Order on Prisoner Voting Rights. In the absence of proper scrutiny of the new system, the suspicion must be that the government can say that their policy is that those on ROTL will no longer be barred from voting while implementing it in a way that continues a de facto ban. Expect another case in the European Court before too long.

Tagging Along

Boris Johnson’s efforts to increase prison time served by serious sexual and violent offenders by way of a Statutory Instrument were stymied by the House of Lords. Before the election was called, the Lords Secondary Legislation Scrutiny Committee also put paid to the other proposal to emerge from the so-called Sentencing Review- the national rollout of the Alcohol Abstinence and Monitoring Requirement (AAMR) or Sobriety Tag. This requires an offender to abstain from alcohol for up to 120 days with compliance electronically monitored. The tag worn on the ankle takes a sample of sweat every 30 minutes which is analysed for the presence of alcohol. First piloted in London when  Johnson was Mayor, both the PM and his erstwhile advisers now in No 10 are enthusiastic about it.

Back in 2015 the Conservative manifesto pledged to make Sobriety Orders, reinforced by tags available to all courts in England and Wales- but it didn’t happen (and the policy was not mentioned in the 2017 manifesto). It was not until The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 14) Order 2019 was laid before Parliament last month that the government has sought to enable the Sobriety Tags to be imposed as part of a requirement of a community order or a suspended sentence order throughout the country.   

As with the Statutory Instrument which would have increased the proportion of time served by prisoners convicted of serious crime, the Lords Committee raised concerns. Being asked to approve the programme on the basis of very limited information was “unacceptable”; it was “interesting”, but rollout was “premature”.   The Committee recommended that the House press the Minister for more detail on all aspects of the plans for rollout and anticipated long-term outcomes. There was no time to do this before Parliament was dissolved so the law hasn’t changed.  

The 2012 Act provided that  national implementation could only happen after piloting and the Government claimed that two pilots had proved sobriety tags a success. A process and performance review of the scheme across the capital – one of four published evaluations – has reported on more than 1,000 AAMRs imposed between April 2016 and March 2018. There was a compliance rate of 94% with the tag- although compliance with the overall order of which the tag was a part was lower- a distinction about which the Lords Committee wanted clarification. More significantly, there is no data about re-offending with an analysis from the Mayor’s office almost a year late.  

The evaluation of the other pilot in Humberside, Lincolnshire and North Yorkshire is not due to be completed until February 2020. Despite this, the MoJ considers that it now has the information necessary to fully commence the legislation and roll out AAMR across England and Wales. Their Lordships disagreed.

It’s certain that sobriety tags will figure in the Conservative manifesto, alongside perhaps  the promises of swift and certain punishment or flash incarceration made before . Whether they come to anything is of course another matter.    

The Lords of Mercy

What happened to the Government’s plans to increase the time in prison served by serious offenders? On 1st October, Justice Secretary Robert Buckland told the Tory Conference that for the most serious violent and sexual offenders … this Conservative Government will abolish automatic early release at the halfway point”. Two weeks later the Queen’s Speech duly announced a Sentencing Bill which would change the automatic release point from halfway to the two-thirds point for adult offenders serving sentences of four years or more for serious violent or sexual offences, bringing this in line with the earliest release point for those considered to be dangerous. The Bill of course got nowhere before the election was called. 

But on the same day as the Queen's speech, Buckland tabled in Parliament the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019. This Statutory Instrument (SI) would have brought the same change into force from April 2020- much sooner than primary legislation would have allowed- but for prisoners sentenced to seven years or more, rather than four. Buckland explained the different thresholds to the Justice Committee on 16 October in terms of “trying to make sure that we create a system that is supported by the resources I need”.  

Whatever length of sentence qualifies for the more restrictive arrangements, it’s surprising that secondary legislation can be used to introduce a measure which would so substantially increase levels of punishment, requiring 2,000 new prison places by 2030. But that’s what the Criminal Justice Act 2003 permits. At least the SI had to be laid under the affirmative procedure which means it must be actively approved by both Houses of Parliament.

The Commons Joint Committee on Statutory Instruments raised no concerns about it on 23 October but the following week the House of Lords Secondary Legislation Scrutiny Committee were less sanguine, drawing it to the special attention of the House “on the ground that it gives rise to issues of public policy likely to be of interest” to it.

In particular, the Committee took the view that the Order “represents one piece of a large and complicated jigsaw and the House may wish to ask the Minister for more information about how the pieces fit together. In particular the House may wish to seek reassurance from the Minister that adequate resources will be available in good time to meet this expanded remit, both in relation to prison accommodation and prison service staff”. The dissolution of parliament meant there was no time for such reassurance to be sought so the law has not been changed.

Should the Conservatives form the next government, the policy will presumably return whether through primary or secondary legislation. Before it does, the Ministry of Justice should take a step back and conduct a proper review of sentencing unlike this summer’s charade.

The MoJ redeemed itself a bit by preparing a detailed impact assessment about the longer periods of imprisonment. These highlighted not only the financial costs of the policy but the possible effects on prisoners and their families, on stability in prisons and on the lengths of sentences imposed by courts. In the light of these broader concerns, the House of Lords declined to be steamrollered in the way that Mr Buckland presumably hoped. It performed a valuable service.           

Don't Forget Rehabilitation: Remember It in Everything A Prison Does

Sir Martin Narey’s call for prisons to “Forget Rehabilitation” was no doubt designed to provoke a reaction and in that the former head of the National Offender Management Service has succeeded. Canadian expert Frank Porporino found Narey’s presentation at the conference of the International Corrections and Prisons Association (ICPA) in Buenos Aires saddening and puzzling because as Narey himself admitted he had, as prisons chief in England and Wales, overseen a big  expansion of education and psychological programmes  designed to help prisoners change their behaviour. The disappointing results of the latter have led Narey to conclude that “the real and moral challenge is to make imprisonment humane”.

Much of what Narey had to say was uncontroversial. Prisons should be clean, orderly and respectful institutions and ensuring decent everyday conditions and treatment should be given a higher priority than they often are. His warnings about the risks of jails descending into brutality and violence were powerfully made. But is he right that humane containment is the best that prison should strive to achieve?

International law makes clear the “the penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation”, and while the reality of most prisons worldwide may be far removed from that lofty ideal, that’s no reason to dismiss it. There’s good evidence that education, vocational training and work in prison reduce recidivism and as a recent manual I drafted for the UN recommends, these need to be expanded not forgotten. It would be a disaster if Narey's headline deters the developing countries represented at ICPA from doing so.

Moreover, without a strong emphasis on rehabilitation, how will prisoners in any jurisdiction be able to prove to a Parole Board that they have made efforts to reduce their risks of re-offending? What conclusions will  politicians concerned about violent crime draw about how to protect the public?  And how will Prison Services be able to attract the optimistic and skilled staff to work with the people in their care?

Other presentations at ICPA have stressed the need for a more humane and hopeful philosophy and practice in prisons-  not in opposition to rehabilitation but as the very foundation of it. A public health approach to incarceration in the US state of Oregon has seen dramatic improvements in wellbeing of prisoners and staff. There and in other states, new practice is informed by prisons in Norway where staff are trained not only as guards but as “facilitators for rehabilitation” and mentors.  A similar initiative in Pennsylvania is having to overcome the hurdle of regulations prohibiting fraternisation between staff and prisoners. But good relationships between staff and prisoners is increasingly recognised as the key not only to safe prisons but ones where prisoners can use their time positively.

Shadd Maruna, in a magisterial lecture demolishing the false science of static risk assessment tools, encouraged instead an approach which takes a much fuller account of what has happened to prisoners in their lives -which in many cases includes the experience of trauma.  This is not just a matter for psychologists and social workers but for everyone working in prison and making decisions about prisoners.

The emerging consensus is that prisons need both to treat prisoners with dignity and respect and to offer them opportunities to come to terms with what they have done and chart a new course for the future. In fact, you can’t have one without the other. As Debbie Kilroy, the Australian activist and former prisoner told the conference, it's only when prisoners are treated as people and not defined by the worst thing they have done, that they ill take up the opportunities to change. 

So, while it may be right to forget the false promise that a short psychological course can repair deep seated problems of disadvantage, a rehabilitative culture should remain a central aim for prisons, alongside all that is required to make it a reality.

If You Build it, They will Come

When Boris Johnson announced in August that 10,000 new prison places would be built, commentators- myself included - were quick to point out that similar plans had been made as far back as 2015. What’s very different is that the new policy is not about relocating prisons from outdated city centre sites to modern new facilities. It’s about adding 12% or more to prison capacity in England and Wales. The Permanent Secretary at the Ministry of Justice, Sir Richard Heaton told MPs this week that compared to the 85,000 places in prisons today, by the mid 2020’s “the total prison capacity we anticipate ….to be between 95,000 and 105,000.” His boss Lord Chancellor Robert Buckland confirmed that he was not planning any prison closures.

Back in August the MoJ estimated the numbers inside would be lower in 2024 than at present . They estimated a 5% likelihood it will reach or exceed 87,300 in June 2023.So why do we need all these additional places?

One good reason might be to reduce overcrowding in existing prisons so that prisoners are held in a “good decent standard of accommodation” that the Prison Service aspires to provide. There are currently only 75,000 places in use that provide this kind of uncrowded accommodation. So almost all of the new building could be used to improve the basic conditions for a prison population of the current size. But in their evidence to the Justice Committee, the MoJ made no reference to this worthy aim.

Instead they justified the increase in prison places in terms of first, a surge in prison numbers resulting from the 20,000 more police officers who will be available to catch more offenders; and second the longer portions of sentences to be served by sexual and violent offenders.

On the impact of more police, Sir Richard admitted it’s “hard to convert those into prison places” because we do not know  if they will be pursuing “high-level crime, low-level crime or crime that results in imprisonment”. Buckland took the view that “we will see quite an increase in volume crime detection. That might not necessarily result in prison sentences; it might result in more community sentences”. The Justice Committee failed to press him on whether investment in probation and other community-based services wouldn’t be a wiser course to take.

The increased portion of sentences served in prison by violent and sexual offenders (not considered dangerous)  is estimated to require 2,000 more prison places by 2030.  Between the Queens Speech on Monday and the Committee hearing on Wednesday, the Government decided to restrict the group having to serve two thirds from those getting 4 year plus sentences to 7 years plus.   Buckland told the Committee he is “trying to make sure that we create a system that is supported by the resources I need.”

The decision that these prisoners should serve a longer portion of their term was ostensibly made following a Sentencing Review announced by the PM in August. Buckland told MPS that the Review “took the form of very thorough advice to Ministers. It is an internal document”. So, nobody will see it.

As for the Review, Sir Richard had already explained to the Prison Reform Trust that “Given the time constraints it has not been possible to undertake any formal public engagement, but we have conducted telephone interviews with some key stakeholders to give them the opportunity to give their views.” The MoJ have listed the 13 organisations they spoke with in the review.[1]   Noticeable by their absence are any sentencers, and the Sentencing Council. This is despite the Government’s Impact Assessment (IA) acknowledging that “it is possible that as a result of this policy the length of sentences handed down by the courts could be reduced in view of the longer period to be spent in prison”. 

The contrast between the depth and detail of the IA which is consistent with the Treasury Green Book Guidelines on policy development, and the superficiality of the Review (which is far from it), is frankly embarrassing. The IA notes "potential transitional risk to prison stability" with  increased tensions in prison establishments, with consequent impacts on prisoner violence or self-harm; and possible increases in the risk of re-offending; plus a cost over ten years of £710 million. 

Woeful too is the lack of proper consultation about the need and use for more prison places. The Green Book recommends that “research, consultation and engagement with stakeholders and the wider public, should be conducted at an early stage” of policy development. “This provides understanding of the current situation and valuable insights into potential improvements”. The rate of imprisonment in England and Wales - 141 per 100,000 of the population- is second only to Scotland’s among the countries of Western Europe. We need to find ways of moving down that league table of shame not cementing our place near the top of it.

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[1] The Association of Youth Offending Team Managers; CLINKS; Criminal Justice Alliance; HM Inspectorate of Prisons; HM Inspectorate of Probation; Howard League; Independent Advisory Panel on Deaths in Custody;NPS Victim Liaison Officers; Parole Board; Probation Institute; Revolving Doors; Standing Committee for Youth Justice; Victim's Commissioner (Office)

UNlocking Children from Custody

Today, the UN General Assembly will hear the results of the Global Study on Children Deprived of Liberty. Worldwide, at least 410,000 are held in detention every year in remand centres and prisons   If you assume the study’s findings and recommendations are not really relevant to a wealthy country like the UK, think again. As the study finds, being locked up means “deprivation of rights, agency, visibility, opportunities and love”; and there are all too many examples of that here in the UK.

Take the Safeguarding Review published last week by the Youth Custody Service (YCS). It provides an honest and down to earth assessment of the “harmful cultures that have become inherent in parts of the system” in England and Wales. “Custody” the review admits “provides a potentially traumatic environment and establishments with a punitive, macho, hierarchical culture can further impact on vulnerability and risk of harm.”

The UN Study notes that “States have an obligation to apply child friendly conditions” and children consulted for the study specifically expressed concerns about the lack of child-sensitive procedures. In England and Wales, the YCS admit  “there is a lack of child focus at strategic level, thus all subsequent levels of governance within Young Offender Institutions (YOIs)”, whose rules and policies talk about prisoners and inmates rather than children. The Safeguarding Review reports on staff wearing uniform of adult establishments; young people unable to access confidential services such as psychology and social work for security reasons; and a young person prohibited from playing the guitar due to concerns around the use of its strings as a potential ligature with risk aversion “driven by financial penalty rather than a child focus”.

The Safeguarding Review makes many sensible recommendations to embed that focus in staff recruitment and training and the day to day running of establishments- although it’s not clear if they have all been accepted. Some are shockingly basic- for example that all children and young people should have appropriate clothing to their size and the weather conditions; and that the YCS should develop a Strategy for Females.

Some of the findings are troubling too; that children can be allocated to and received by institutions without information about their needs and vulnerabilities- a  “no docs” scenario; that staff engage in behaviour and language that they also apply sanctions to young people for; and keeping certain young people apart – the standard approach to keeping them safe “can increase risk of violence”.

There’s clearly a long way to go to creating the rehabilitative culture the YCS is striving for. The YCS Director welcomes “a refreshing first look” at what can be done to address the problems in YOIs and STCs in particularly but in truth many are longstanding, deep-seated and resistant to reform.  

That is why the Government is pinning its hopes on the Secure School- more details of which were supposed to be made available last month. Delay it seems too for Charlie Taylor’s Restraint Review which was due to report in the summer.

But the evidence is mounting that while some institutions are undoubtedly better than others- the Safeguarding Review makes clear that Secure Children’s Homes are considered the best model of practice within the sector-, the fundamental approach is wrong. The Prison and Probation Inspectors have yet again reported on “children … not being effectively prepared to re-enter their communities and start to live productive and safe law-abiding lives The services that they needed on release were often not in place to help them resettle, and the risks that they posed were not always sufficiently managed in their early days in the community”.  Nor had those risks been addressed while in custody. So, what is the point?

The failure of custody is one reason why the UN Study has recommended that States should develop and implement a strategy for progressive deinstitutionalization which includes significant investments in family and community-based support and services. States should prioritise the closure of large-scale institutions and avoid the creation of new ones. Plenty of relevance in that .

    

Conference Calls

As an unusual Party Conference season draws to a close, what have we learned about where the parties stand on criminal justice and in particular sentencing?

The Lib Dems confirmed their commitment to reduce the prison population not only by pledging a presumption against prison sentences of less than 12 months, but cutting numbers remanded and recalled to custody; ending imprisonment for drug possession and repealing mandatory sentences for possession of knives and corrosive substances. So far so good, although their proposal for weekend and evening custody looks impractical as it is unnecessary.

Labour’s offer on short jail terms is more modest -a presumption to end ineffective "super-short sentences" of six months or less for non-violent and non-sexual offences. Much more ambitious is their pledge not only to end future prison privatisation but to bring existing PFI prisons back in-house- although Jack Straw’s similar promise prior to 1997 foundered on Gordon Brown’s spending cap. Labour plans to fund diversion for women properly looks more doable.

As for the Conservatives, only three months ago Robert Buckland told the Justice Committee that he believed “the British public are with us on this; they do not want to see their taxpayer resources wasted on short-term prison sentences that do not reduce victims of crime. They want to see their taxpayer money used on effective solutions”. This was not a belief the Justice Secretary chose to test with his Manchester audience however, instead telling the Daily Mail that David Gauke’s plans to scrap short jail terms have been, like Gauke, ruled out.

 Buckland used his speech to decry automatic release at the half way point of prisoners on determinate sentences as “madness”, blaming Labour’s 2003 Criminal Justice reforms. In boasting of the “great strides in criminal justice in the past nine years of Conservative Government”, he did not explain why the full review of sentencing policy carried out when the Tories took office in 2010 left the “madness” undiagnosed let alone treated.  

In fact, the 2010 Breaking the Cycle Review maintained “the basic structure of the determinate custodial sentence, because it can enable effective resettlement and public protection”. The 2010 review found that “surveys have shown that the public tend to understand the logic of the licence period once it is explained and promised steps to ensure it is better understood and explained”. Now, according to new Justice Minister Chris Philp “the public expect someone who is sentenced to serve the majority of their sentence. Releasing them at the halfway point undermines public confidence in the sentence that is handed down”. By describing the sentence in this way- as if it's only the custodial part that counts, Philp's doing just that.   

Courts have been given powers to require certain serious and violent offenders to spend more than half their sentence in prison and a longer period of supervision on release. It is these extended sentences which it seems will become applicable more widely and perhaps mandatory.  Where does that leave the need identified in Breaking the Cycle to simplify the sentencing framework and reduce elements of the law that constrain judicial discretion?

We’ d find out the reasons for the change in emphasis if the latest Review, on which these proposals are allegedly based is published. We’d see the survey evidence too about the change in public attitudes. We might also learn what plans are in store for toughening up community penalties beyond the roll out of sobriety tags announced this week. I, and many others no doubt, have asked to see the Review. But it’s now being described as  "internal," so unlikely to emerge.

What’s really needed is not Buckland's dystopian vision where "only criminals who earn their liberty should have it"; but what the Lib Dems have proposed – “a full review of sentencing with the aim of reducing excessively long sentences.” In Nietzsche’s words “Beware of all those in whom the urge to punish is strong”.

Swift but not yet Certain. New Government Policy on Prison.

There was some relief yesterday when the new Prime Minister placed the Justice brief in the experienced and relatively liberal hands of Robert Buckland. Yes, as Solicitor General he had appeared to relish appealing unduly lenient sentences, but his policy instincts are not necessarily punitive. As a back bencher, he spent a good deal of time on the Justice Committee and was a member of the Independent Parliamentarians’ Inquiry into the Youth Court which backed a more problem-solving approach to children who offend.

More importantly perhaps, Buckland's admittedly brief ministerial exposure to the prison and probation services will have alerted him to their current fragility- forcefully confirmed in the case of prisons by the latest set of performance ratings in which a record 14% establishments are of serious concern. Buckland’s predecessor as Justice Secretary was perhaps suffering a touch of gate fever himself when he informed the Justice Committee nine days ago that that he felt “we have made good progress in addressing some of the challenges that prisons face right now - on safety, security, decency, and the estate in general”. That assessment rather flies in the face of the evidence. 

Today as expected, PM Johnson told MPs that he had “tasked officials to draw up proposals to ensure that in future those found guilty of the most serious sexual and violent offences are required to serve a custodial sentence that truly reflects the severity of their offence and policy measures that will see a reduction in the number of prolific offenders”. Whatever else they might achieve, these priorities for government will almost certainly place yet more pressure on the prison service. So too of course will pumping funds into the police.

Average sentence lengths for sexual and violent offences have risen sharply since 2010- from 49 to 61 months for sex and 20.8 to 23.5 months for violence. England and Wales have more life sentence prisoners than the rest of Europe, with average tariffs almost twice as high as they were in 2003. So, what’s Johnson's thinking?

Tories have long been uncomfortable with automatic release of most determinate sentenced offenders at the half way point. Back in 2008 they pledged to “introduce honesty in sentencing so courts set a minimum and a maximum period, with no possibility of parole until the minimum has been served." Grayling and Gove mulled an earned release system. Maybe we are in for one or both of these options. Expect too, further extensions to the scope of the unduly lenient sentence scheme. 

Johnson will be alive to the electoral appeal of these kind of changes. His views may also have been shaped by his partner Carrie Symond's awful experience- as a 19 year old-  as one of the many victims of John Worboys. She certainly felt that “the justice system and the Parole Board let us down", helping to fund raise for the Judicial Review of the latter's decision that Worboys should be freed.  Can we expect further reform of the Board? 

On prolific offenders, the 2015 Tory manifesto promised “a new semi-custodial sentence …allowing for a short, sharp spell in custody to change behaviour”. Briefings afterwards revealed that so called flash incarceration will mean “persistent vandals, shoplifters and drug addicts will spend two nights in a police cell under Conservative plans”. Despite it's impracticality , is this "swift and certain punishment" back on the cards? Or can we hope for something more measured building on the public health approach?

Think tanks Policy Exchange and the Centre for Social Justice are each likely to claim the role of midwives for any policy of “swift and certain" with Crest Advisory currently working on proposals. The first two as least have extolled the virtues of Hope Probation, a tough love programme piloted in Hawaii which involves probation supervision accompanied by frequent drug testing. Failures lead to immediate but short terms of detention. Research has found impressive outcomes in terms of reduced drug use and jail time.  Because of its success, the short terms of detention imposed on programme failures require fewer prison beds in Hawaii than do the longer sentences served by those who fail normal probation supervision.  

Despite the research, I have been a bit sceptical about the wisdom of importing the approach in the UK. Some observers at least, while acknowledging the impact that Hope has had in Hawaii, question whether that is enough to justify its “correctional popularity”. Frank Cullen and colleagues at the University of Cincinnati point to “uncritical acceptance and importation of the programme to the U.S. mainland” and argue that several uncertainties about the programme may potentially compromise its effectiveness in other jurisdictions, thus offering false hope as a new paradigm.

Whatever happens it’s hard to see David Gauke’s consultation paper on limiting short prison sentences seeing the light of day. In a worst case, we'll see more short sentences for petty prolific offenders and more long ones for serious offences. Let's hope Buckland can find a way to prevent that outcome. 

Short Changed ?

Soon to be ex Justice Secretary David Gauke rightly told us in a farewell speech last week that a short spell in prison doesn’t protect the public, doesn’t serve as much of a deterrent and exacerbates those already deep-rooted difficulties an individual faces. Sadly, his own 18-month spell as Justice Secretary hasn’t proved long enough for him to do much about the problem. He should really have started tackling the issue much sooner. He seems to have listened to his deputy’s Rory Stewart’s foolish view that there had been too much talk “about grand issues of sentencing policy, reoffending and the policy context.” In reality there hasn’t been enough.

David Gauke has done what he can to encourage his successor to take forward his progressive reforms to sentencing. He’s bequeathed them a Single Departmental Plan for the MoJ that aims to protect the public from harm caused by offenders through building confidence in an effective probation system, reducing the use of prison and increasing the use of community and alternative sentences. And he’s got his department to produce a sheaf of research showing an £18 billion cost of reoffending, very high level of needs experienced by people who commit crime and the fact that sentencing them to short term custody- even with supervision after release- is associated with higher proven reoffending than if they'd instead got community or suspended sentence orders.  But will all this be enough to keep a policy of reducing prison numbers in place?

A somewhat different view has been put forward by new Tory think tank Onward who argue that a greater number of persistent offenders should go to prison for longer periods.  Disappointingly, on penal policy, Onward's “new ideas for the next generation" turn out to be Michael Howard's Prison Works vision from the last one. Onward seem to want “three strikes and you’re out” mandatory minimum prison terms, arguing that “super prolific offenders” account for more crime and get fewer prison terms than in the past. They also want more prisons to be built. (Their Director Will Tanner used to work for G4S).

The statistics Onward deploy seem arguable. With fewer crimes being cleared up, it’s not surprising if “the usual suspects” loom larger in the population of those who are brought to justice. It would also be odd if the calamitous decline in prison performance and debacle of probation privatisation have not had negative impacts on the unfortunate people who have experienced them as service users.

Dealing with petty persistent offenders raises some fundamental questions of sentencing philosophy in particular about the weight that should be attached by courts to previous convictions. On one view, anything but a very limited weight can amount to a kind of double- or more-  jeopardy in which you can end up being punished in perpetuity for past misdeeds.  

The short-lived 1991 Criminal Justice Act controversially provided that an offence should not be regarded as more serious because of any previous convictions of the offender or any failure of his to respond to previous sentences.

On another view, repeat offenders deserve to be dealt with more harshly, because spurning a chance to go straight and continuing to flout authority make bad behaviour worse and elevate the need to protect the public above concerns about reform and rehabilitation. For the last 25 years, courts have been required to find recidivist offenders more culpable; and many of those who end up getting short prison sentences are likely to have simply exhausted the patience of the magistrates and judges.

Whatever Onward might think about the feebleness of the courts, the fact remains that since 2010 for the more serious types of cases , the proportion of offenders going to prison has gone up along with the length of their sentences. They are right to call for a review of Sentencing Guidelines, but if the Sentencing Council were to do its job and properly have regard to the cost of different sentences and to their relative effectiveness in preventing re-offending, the conclusions would be very different from Onward’s dismal prescription.

Unfortunately, evidence may struggle to prevail in the forthcoming government. Back in 2011, several up and coming Tories argued the need to reverse the tide of soft justice, “not ashamed to say that prisons should be tough unpleasant and uncomfortable places”. Liz Truss, Dominic Raab, Priti Patel and others who now expect jobs from Johnson, argued that what was to become Gauke’s policy of a presumption against short prison sentences is the wrong approach and that we should be doing exactly the opposite- ensuring that persistent offenders are imprisoned for longer periods. “When the law is broken, our condemnation should be unequivocal. The primary purpose of our justice system is to protect our society, not to act as a welfare service for convicted criminals.”

Such a forlorn view may bring an end to short prison sentences – but only by replacing them with longer ones.
   

Don't Look Back in Anger

Back in the early 1990’s, in one of the more disreputable periods in my career, I worked in the Home Office helping to design the new Secure Training Centres. I remember accompanying a senior mandarin to Northern Ireland to look at their Training schools.

At St Patrick’s, run by the De La Salle Brothers we were offered a glass of sherry -it was about 10.am. We watched the boys running – and in some cases hobbling- around the yard -as Brother Francis struggled to explain the legal basis of their detention and showed us bare dormitories and boxing trophies. We moved on to Rathgael, the Protestant School – run by imposing and large sharp-suited men but seemingly a bit more modern in its approach. Lisnevin – a mixed but miserable Borstal establishment down the coast completed our tour.

If its purpose was to provide inspiration, the trip was a failure. In fact, I’d worked out the main aim was to enable my colleague- who’d done time in the Northern Ireland Office- to attend a Burns supper at Hillsborough Castle hosted by Sir Patrick Mayhew.

Whether religion should play a role in secure establishments for children has become a hot topic in England and Wales with the announcement that the Oasis Charitable Trust will operate the first Secure School – on the site of the first STC at Medway in Kent. Oasis , established by the Reverend Steve Chalke runs more than 50 academy schools and a range of other social provision. According to its website, Oasis UK is inspired and motivated by the life, teaching and example of Jesus.  Chalke has said of running the secure school  “Youth jail detention centres don't work. This is a great opportunity for us to show that a Christian ethic, a Christ-centred ethic produces a different result”.

Christianity has long been involved in prison reform of course- the penitentiary after all was a Quaker invention. And whatever the religious motivations of Oasis, the organisation’s values include a desire to treat everyone equally, respecting differences. Presumably that’s a requirement for running their academies. But secure units are not schools. 

The UN Standard Minimum Rules for the Treatment of Prisoners, the  Nelson Mandela Rules say that “if any prisoner should object to a visit of any religious representative, his or her attitude shall be fully respected”. The UN Rules for the Protection of Juveniles Deprived of their Liberty give every juvenile the right freely to decline religious education, counselling or indoctrination. The Council of Europe's Rules say juveniles may not be compelled to practise a religion, follow a belief, attend religious services  or meetings, take part in religious practices or to accept a visit from a representative of any religion or belief. 

 The Secure School’s residents will probably not have any choice about whether they go there.  Last year, one in eight (13%) children in STCs  identified as Muslim - almost a quarter of those in Young Offender Institutions.

The experience of running academies hasn’t been without problems. Back in 2008, in one of them, “around 150 teenagers caused hundreds of pounds of damage after running through the corridors armed with bits of wood, smashing windows and trying to rip plasma television sets off walls”. Much more recently, in 2015 Ofsted criticised the  'limited leadership' in the Oasis academy chain, finding that disadvantaged pupils,particularly boys, make significantly less progress than their peers nationally.  The challenges of running a closed facility will be immeasurably greater than running a school.

It would not, however, be right to pre judge the organisation. We will apparently get to see the plans for the school in September though why the Ministry of Justice don't publish them now is a mystery. But I’m not sure that putting redemption at the heart of youth custodial system will produce any better outcomes than previous noble sentiments.

Why not ? Because the fundamental flaws inherent in bringing together troubled young people in closed institutions almost always outweigh the positive intentions of those that run them. Almost a quarter of allegations of sexual abuse in custodial institutions reported by the Independent Investigation were from secure children’s homes- generally agreed to provide the best type of child custody.

In its existing work, Oasis boasts an integrated ‘Community hub' model, which seeks to create a new sense of neighbourhood in communities that had previously been forgotten by society so that everyone, regardless of their background and starting point, can join together to overcome life’s hurdles. I’d be more comfortable if the organisation was extending this approach to deal with children in conflict with the law without depriving them of their liberty.    

Planning Application

"Many offenders commit crimes so serious, or so persistently, that they must be imprisoned. Custodial sentences contribute to public safety by keeping criminals off the streets". So said the Ministry of Justice’s Single Departmental Plan for 2015 -20 published three years ago. Contrast the punitive tone with the newest version of the Plan published this week.  Yes, one of the objectives is still protecting the public from harm caused by offenders. But meeting it involves not more imprisonment but building confidence in an effective probation system, reducing the use of prison and increasing the use of community and alternative sentences.

These kinds of documents are not really plans at all but broad statements of intent – yet the shift in emphasis in this one is welcome for two reasons. First, it’s a sign that the ill wind of Transforming Rehabilitation has led to probation getting long overdue recognition in Whitehall and the more careful attention it deserves. The Departmental Plan says future reform will place a stronger emphasis on the quality of relationships between offenders and probation officers and ensure offenders get access to services that support their rehabilitation; and recognise the skills and professionalism of the probation workforce. That’s some sort of reparation at least for the ideological vandalism wrought on probation in recent years, and a welcome focus on improving practice.  

Second, the Ministry of Justice has put into a planning cycle, however fragile that may turn out to be, commitments for getting prison numbers down. Okay the plan is only to “develop” options for restricting the use of short custodial sentences and “consider” ways to increase the use of non-custodial sanctions. The Justice Committee will not be satisfied with that, writing only this week to Justice Secretary David Gauke asking for more detail on the options for abolishing short prison terms and the time frame under which the Government will be taking this forward.

It must now be unlikely either that Gauke gets firm proposals on sentencing out in the next few weeks, or that he continues in post beyond that.  What this Plan suggests is that he is trying not just to leave a progressive legacy but to influence his successor’s policy choices in a sensible direction.  It may not work- it’s easy to envisage harsher penal policy forming part of a new Prime Minister’s efforts to keep their party together- damaging, unnecessary and expensive though that may be.

If the new government reverts to a  “prison works” policy , this week’s Single Departmental Plan will count for little.  As Mike Tyson put it, “Everyone has a plan 'till they get punched in the mouth”.

Sentencing Blues ?

Justice Secretary David Gauke told MPs this week that he had tried out a GPS electronic tag that had monitored his whereabouts for two days. The question is where he will be after July 22- the date a new Prime Minister will be in place -and more importantly what will become of his plans to reform sentencing.

On the abolition of short prison terms for most offences, Gauke told the Commons “we are working towards having firm proposals by the summer”.  I read that as at best a White Paper. At worst the proposals may not see the light of day.

Why? For one thing, it’s hard to see a traumatised probation  service being able to up its game in time. More importantly, a new Downing Street regime eager to reclaim Conservative supporters from the clutches of Nigel Farage, may be reluctant about -or hostile to - a policy that can be made to look soft on crime.

Conservative Home and Justice Secretaries have embraced a wide spectrum of views over the years- with hardliners like Leon Brittan, Michael Howard, and Chris Grayling, as likely to forge penal policy as the more liberal Douglas Hurd, Michael Gove and now Gauke.

Tory Prime Ministers have varied too in the interest they have shown in criminal justice. Margaret Thatcher surprisingly let Hurd (with his special adviser David Lidington) pursue a moderate Home Office agenda, culminating in a 1991 Criminal Justice Act which aimed to reserve prison for the most serious cases. By contrast, John Major’s desire to condemn a little more and understand a little less gave a green light to  Howard’s baleful notion that Prison Works- though it was actually revisions to the 1991 Act by Ken Clarke- usually thought of as a liberal - which started the punitive counter revolution. Cameron’s attachment to prison reform was as superficial as it was hyperbolic- something that might be said of Gove’s tenure as Justice Secretary  too.   

Of the current leadership contenders, for what it’s worth, I’d place Leadsom, McVey, and Raab -all from the right of the party -in the punishment camp. with former prison ministers Gyimah and Stewart, with Gove in the more rehabilitative tradition. The others are harder to call. Javid looks a far from liberal Home Secretary but has endorsed a public health approach to violence. Hancock, though Health Secretary denounced that approach, seemingly badly briefed. Hunt is socially liberal, though suggesting in 2010 that hooliganism played a role in the Hillsborough disaster raises questions. As immigration minister, Harper piloted the “Go Home or Risk arrest Vans, which he apparently doesn’t regret.

What of the favourite? A recent Telegraph piece by Boris Johnson promised a harder line, on serious offenders than “our cock-eyed crook-coddling criminal justice system” currently provides. Yet as London Mayor, he funded an interesting resettlement programme at Feltham YOI though then proceeded to overclaim its success.

Many factors influence a politician’s stance on crime as on anything else. For good or ill, ideological preferences can be modified by short term political calculation, affordability, technical feasibility even personal experience. I’ve seen it suggested that Tony Blair’s tough approach to crime was at least reinforced when his mother in law was the victim of a mugging.

It’s possible Johnson might allow a modest attempt to reduce short sentences alongside a more restrictive regime on early release for those on longer ones. Offsetting a positive reform with a crackdown elsewhere would be nothing new.

40 years ago, Thatcher’s first Home Secretary William Whitelaw tried to introduce a more generous early release scheme to reduce prison numbers but is mainly remembered for notorious short sharp shock Detention Centres.

Making prisoners serve longer will lead to a potentially large increase in the prison population, even if short sentences fall. This is what seems to be happening in Scotland where despite a presumption against short prison terms, the overall numbers behind bars have gone up. If something similar is the political price to pay for Gauke’s reforms, they could prove something of a pyrrhic victory. Lets hope its not a price that has to be paid.