Definitely Maybe: Will We Ever Get Secure Schools?

  

Back in 2016, the government said that failing detention facilities for children -Young Offender Institutions (YOIs) and Secure Training Centres (STCs)- should be replaced by a new generation of Secure Schools. How’s progress?

Glacial is too generous.

Prisons Minister Victoria Atkins told MPs on the Justice Committee last week that she’d like to get the first children into the first school at Medway early in 2024. “We are now on the road to construction” she claimed, confirming that expected costs of adapting what was the first STC have risen sevenfold to £36 million.

Across the road her Ministry of Justice (MoJ) officials were explaining to the Public Accounts Committee (PAC) that the building was not all that is under construction. The funding agreement with Oasis Restore, appointed in 2019 to run the Medway Secure School is still being designed.  As for a second school, officials admitted they haven’t yet done the planning for that.  Medway is a pathfinder, which Ms Atkins said, “we will be evaluating … very, very carefully”.

Reasons for the delay have included the need to ensure Oasis, as a charity, can lawfully run a child prison and to reach decisions about the spec for the building. But with a bit more political will, it’s hard to see why Medway couldn’t have been ready to start work a good deal sooner.  

As I wrote in evidence to the PAC, I’ve never really understood why a new model of youth custody is being developed in the shape of the Secure School when there is a perfectly good existing one in the form of Secure Childrens Homes (SCHs). SCHs provide by far the best quality of care in the existing youth custody estate, accommodating a variety of children whose liberty needs to be restricted whether because of criminal offending or to protect them from harm. Since 2002, 16 SCHs have closed. Would the MoJ not do better to contribute to an expansion of the proven model of SCHs rather than invent a costly and risky new one? The Education Department is already creating additional places in secure homes.  

At the Justice Committee, Ms Atkins pointed to complexities with SCH’s, arguing that since they rightly risk assess young people and decide whether or not they can manage that young person well, “we have to have options other than secure children’s homes”. 

But the Head of the Youth Custody Service made clear to the PAC that once the Secure School is running “it is entirely possible that Oasis say, “No, given the mix and the risk of the population we have, we might not be able to take this particular child.”   

A youth estate consisting of secure schools and SCH’s will always need some sort of backstop. 

It may be the recognition of this fact that accounts for what looks like a scaling back of ambitions for Secure Schools. Spiralling costs and a harsher Conservative approach to crime may also be causing ministers to have second thoughts.  Ms Atkins description of Secure Schools as “a pretty radical policy” and a “really brave effort” hinted to me at least, at the possibility if not of pulling the plug completely, then limiting the experiment to Medway.   

Officials were more positive about a “completely innovative” attempt to take a “really transformative vision”. But they admitted that their Department's commitment is only to trialling Secure Schools and  the Permanent Secretary made clear that “we are completely committed to the existing sector, because the vast majority of children are looked after within the YOIs and the STCs”.

Five and a half years after the Taylor Review of Youth Justice recommended fundamental change to the current youth custody system, the Independent Review of Children’s Social Care described  the state of child detention as abysmal, recommending that YOIs and STCs should be phased out within the next ten years and replaced by local secure children’s homes or Secure Schools.

The MoJ’s track record suggests that even if the recommendation is accepted, it won’t be delivered. The Social Care Review also proposed that youth justice policy should be moved to the Department for Education. This is something I called for when I left the Youth Justice Board in 2006. Unless it happens, I can’t see any major change to the way we lock up children.

Courting Trouble: Should Magistrates Have Been Given Extended Sentencing Powers ?

 

What will be the effect of giving Magistrates Courts the power to sentence people to prison for a year rather than six months for a single offence? The measure has been on the statute book since 2003 but despite regular urgings from the Magistrates Association has remained unimplemented until last week. The Government hopes the move will reduce pressure on the Crown Courts so helping clear the backlog of serious cases.

Just how much it will do so is unclear. Justice minister James Cartlidge told Parliament in January that the extra powers for lay justices would save nearly 2,000 Crown Court sitting days per year. He wrote to the Justice Committee on 29^th April that the estimate was 1,700. The impact assessment (IA) he signed off the previous day actually says that “after applying an optimism bias of 20% the sitting day figure reduces further to 1,400.”

But what about the effect on the size of the prison population?

The answer is even less clear. The IA assumes that sentences given by magistrates with their extended powers will be the same as those which would have been given by Crown Court Judges and anticipates no change in prison numbers. But why then should the Government go to the trouble of legislating a “varying power” to enable ministers to reinstate the 6-month limit?

They say it’s necessary “to ensure flexibility in the future, should significant unsustainable pressures arise …. such as a significant increase in the prison population, or a change to the election {for trial} rate increasing the pressure on the Crown Court”.   

The IA acknowledges that cases will be completed more quickly in the Magistrates Courts, so defendants who get a jail sentence will enter prison sooner. The MoJ reckon this will only bring forward, rather than add, costs to the Prison Service. But presumably there may be operational pressures resulting from increased receptions in the short term, although many of those involved would have been remanded in custody awaiting Crown Court sentencing under the old arrangements. 

Of greater concern is the risk that magistrates could sentence more harshly than Crown Court judges, which would lead to an increase in prison numbers. The IA calculates that 550 additional prison places will be needed if immediate custodial sentences increase by 2 months and a third of suspended sentences were in future to result in a jail term.

How likely are magistrates to use their new powers in this way? The IA says that because the cases will be the most serious magistrates see, they may sentence at the top end of the range available to them. Conversely, cases would be the least serious in Crown Court, so comparative sentences may be lower.

While this looks plausible, it doesn’t seem exactly evidence based. In a 2019 report the Justice  Committee backed giving magistrates the extended powers “subject to establishing a positive evidential basis for doing this from a suitable modelling exercise on the effects of such a step”. The government demurred, concerned about the potential knock on effects “and the difficulties of modelling these”.

In a feeble response to a FoI request last year from Penelope Gibbs at Transform Justice, the MoJ confirmed that it had done modelling and made impact estimates, but locating, retrieving, and extracting the information would be too costly to provide it. Creating the “varying power” for use should  “any unsustainable adverse impacts materialise” suggests the MoJ’s modelling might have predicted some of these. But they won’t say.

So, what might happen over the coming months?

In 2019 the Senior District Judge told MPs she would be “very cautious” about increasing magistrates powers and “a bit worried that there would be an increase in prison sentences”.  

By contrast Justice Committee Chair Bob Neill took the view during the passage of the Judicial Review and Courts Bill that  “there is a bit of an urban myth that magistrates are heavier handed in sentencing than the Crown court would be”. The experience of ex magistrate MP Andy Carter is that the overwhelming majority of magistrates will do everything they can to avoid passing a custodial sentence, and if a custodial sentence is required, a primary consideration is to look to suspend that sentence.

The MPs colleague James Daly wishes it were otherwise arguing that “we should be imposing deterrent sentences rather than the incredibly lenient sentences that are often handed out by magistrates because they do not feel that they have sufficient powers or length of sentence to replicate the seriousness of the offences that they are facing”.  And this is precisely the danger.

The Government say they’ll monitor the impact on average custodial sentence lengths and the prison population rates as well as the court backlog. They’ll also see whether more defendants elect Crown Court trial or appeal against their sentence, both of which would add to rather than subtract from the backlog.

An equality impact statement says monitoring will include data on sex, ethnicity, and other protected characteristics “where it is available”. But during the passage of the Judicial Review and Courts bill, the government rejected as burdensome an amendment requiring reporting to Parliament every four months on the operation of the increased sentencing powers.  And oddly the IA says the policy of extending Magistrates’ Court sentencing powers will not be reviewed.

To reduce the risk of unsustainable adverse impacts, the government promised to provide training for magistrates, district judges and legal advisers and to work with the Sentencing Council to update sentencing guidelines. There has been nothing so far on the Council’s website about the change.   

Overall the measure gives a good deal of cause for concern. As the House of Lords Delegated Powers and Regulatory Reform Committee  have said “the issue of what the maximum term of imprisonment that is available to a magistrates’ court should be is one on which there are differing and strongly held views”.

The idea that ministers can switch it on and off at will is bizarre. But so, to me anyway, is their ability to commence a legal provision 19 years after it was enacted and in a very different context. No consideration seems to have been given to piloting it; and the powers are clearly a means to the end of freeing up court time rather than necessarily in the interests of justice.

As for the substantive issue, I’ve always wondered whether lay magistrates should have powers to sentence people to prison at all. Certainly the way the Magistrates Association have celebrated their “campaign win” looks slightly off.

Punishment in Portugal

 

 “I do harm to people”. That’s how a Portuguese judge responds when asked what he does for a living, or so he told a meeting on alternatives to prison this week in the beautiful university city of Coimbra. But surely, only for the good of society, his surprised questioners tend to follow up. To which he replies “Sometimes, but sometimes not”.

Punishing people should leave you “with a heavy heart and burnt hands,” he told us. While some of his colleagues on the bench are unlikely to share this wisdom (or his way with words), the judge’s comments typify a long-standing humanistic approach in Portuguese criminal justice - the country was the first to abolish both the death penalty in 1867 and the sentence of life imprisonment not long after.

More recently, it has led the way on drug decriminalisation and enacted emergency powers to release 2,000 people from prison during the 2020 Covid wave- almost a sixth of the total. No prisoners died from the disease and there was apparently relatively little re-offending by those freed early.

Some have argued that this makes the case for seeking to reduce prison numbers permanently. The judge was certainly in favour of lowering punishment levels and making community service much more central to sentencing so that prison numbers are more in keeping with Portugal’s fourth place ranking in the 2021 Global Peace Index. He questioned whether non-custodial penalties should continue to be anchored so heavily to prison in the law. Most of those serving them are subject to jail terms which have been replaced or suspended in one way or another.

The three-day training event for judges, lawyers and probation officers, organised by the University and Penal Reform International forms part of an  EU funded project Promoting non-discriminatory alternatives to imprisonment across Europe (PRIAltEur). Other activities include a comparative study of penal practice in EU member states – (cue wry smiles in my direction during the presentation when participants were reminded that the UK is not included).  

A pilot scheme to improve access to psychiatric services for people on probation is also being developed in the ambit of PRIAltEur. Portugal’s national coordinator for mental health is enthusiastic about including people in conflict with the law in his ambitious plans to transform the service. 

Several contributors seem rather proud of Portugal’s penal law and policy, while being the first to acknowledge that implementation on the ground can be another story. The Council of Europe’s torture watchdog has roundly criticised overcrowding and very poor conditions in the country’s ageing local prisons, though welcomed some progress when they visited in 2019.  They will be back later this year.   

As for wider society, UN bodies have been concerned about racism both towards Roma and people of African descent. Meaningful discussions at the meeting about racial disparities in criminal justice were prevented by a total absence of information. The Constitution prohibits the collection of data that are disaggregated by race or ethnicity. The UN’s Human Rights Committee worry this hampers the ability to further combat discrimination.      

On community penalties at least, probation is embracing a balanced package comprising structured treatment programmes, relationship based practice and new technology. But probation officers carry an average caseload of 70, and while the conference heard about some impressive work by established ngo O Companheiro, civil society involvement in penal matters is relatively limited.

Portugal has for now at least avoided a descent into populist politics which invariably brings a more hard-line approach to crime and sentencing in its wake. For how long?

Right wing nationalist party “Chega”, meaning “Enough”, won 12 seats in January’s parliamentary election, campaigning for life imprisonment and chemical castration. Its founder and leader Andre Ventura has criticised the Covid prisoner amnesty. Ironically, Ventura, is a former law professor, (though not at Coimbra) , whose doctoral thesis criticised penal populism and the stigmatisation of minorities.   

The judge at our conference told us that he and his judicial colleagues should “run away from prison sentences as the devil runs from the cross.” As we well know, politicians, or many of them, choose to run in the very opposite direction.