Incapacitating Children in Custody

 

Two days after announcing a trial into the use of Conductive Energy Devices (tasers) in adult male prisons, the Justice Secretary has authorised the use of PAVA, (synthetic pepper spray) in the three publicly run Young Offender Institutions (YOI) which hold children under 18.

A Ministry of Justice study on use of force spells out the overwhelming and painful effects of being on the receiving end of PAVA. Adult prisoners described feeling unable to breathe, and how the effects lasted more than an hour after exposure. One prisoner said: “My face felt like it was on fire, I couldn't see. I was just left on my own”.

Some of those affected were provided with a laminated paper outlining what should happen by way of aftercare but weren’t able to read it due to the impact of PAVA. Exposure to fresh air after an incident, and timely access to healthcare, “seemed inconsistent.”

Is this what we have come to in dealing with the youngest people in the prison estate?

Yes, there is a real and serious problem of violence in youth prisons. Latest data suggest it has been getting worse still, with assaults in 2024 up almost 25% on the previous year. But there are surely better ways to reduce it. After all , the availability of PAVA has not been conspicuously successful in curbing violence in adult jails, where assaults on staff reached a new peak last year. Before then Prisons Minister Rory Stewart rolled out its use in 2018, a pilot scheme “was unable to conclusively demonstrate that PAVA had any direct impact on levels of prison violence”.

So what is the answer? Monitors at Cookham Wood Young Offender Institution have recently reported on the final few weeks before the YOI closed last year. They found that “when the number of boys was very low, there was a glimpse of what a more positive regime could look like. This was an entirely different establishment, humane, offering a good amount of education and other activities; and where officers had the time to work more closely with individual boys.

Moreover “the small units were able to support the needs of boys with very challenging behaviour, including violence. Increased time out of room calmed the boys; they were occupied with education and increased association time.” The watchdog found it “very sad that the Youth Custody Service (YCS) had been unable to offer this type of regime previously at Cookham Wood.

This surely is the way forward for youth custody. To be fair, Shabana Mahmood told MPs in the longer-term, “we intend to move away from the current estate based on the evidence of what works for young people in custody. We will learn from the pilot of the first ever Secure School and the operation of Secure Children’s Homes (SCH).

But ministers have been saying much the same for more than seven years. In November 2017, a then Justice Minister told MPs he expected “that over the next 10 years or so, because it will take time, we will replace everything with secure schools.” Successive governments have neither sustained the political will nor found the money to do it. The daily cost of a place in a YOI is about £350, compared to £950 in a SCH.

According to the Chair of the Prison Officers Association, “a 17 year old armed with a knife is just as lethal as a terrorist prisoner.”  Let’s hope we aren’t going down a road  which leads to children in custody eventually being tasered too.

How Goes the Revolution? A difficult start for the first Secure School

 

The Oasis Restore secure school opened to great fanfare last Summer, promising a revolution in the way children accused and convicted of the most serious offences are treated. Two recently published inspection reports provide a mixed and somewhat sobering assessment of what’s been achieved so far.

Oasis Restore has been visited twice by Ofsted this year, in January to monitor its progress as a Secure Academy and a month later under the social care common inspection framework (SCCIF). The facility is both a school and a secure childrens home but quite why two separate inspections were needed is beyond me- particularly as the SCCIF covers children’s education and learning.  What’s more the two reports are by no means consistent.

The educational monitoring found that most children attended education and even those with previous negative experiences “participate fully”. The broader inspection a month later reported that attendance at lessons was not consistently good for too many children. Both assessments can’t be right. Disappointingly, both reports find that the breadth of the education curriculum is not sufficient to meet the needs of children of compulsory school age- surprising in view of Oasis’s track record as an education provider.

There are other puzzling findings which don’t match some earlier observations at Oasis Restore. Last October the Youth Justice Board Chief Executive remarked on “artwork on the walls, and soft blankets and sofas in the shared living spaces”.  She rightly considered these “incredibly important to help children learn to cohabit and foster a sense of community and responsibility”.  How come inspectors have now found that “communal areas are not decorated in a way that makes them feel homely?”

The first journalist allowed to visit the centre last year observed that to make the secure facility feel more like student accommodation or even a family home than jail children “can choose their own duvet cover and put up posters if they want”. Yet inspectors found “most children’s bedrooms do not have personal items that reflect their interests and identity”.

More troubling still are the inspectors findings about staff. Oasis make much of the ethos and habits of their staff and the YJB’s boss last year observed a highly trained team committed to providing responsive, psychologically informed and developmentally appropriate models of support and education, and “to loving the children like their own.”

A few months on, the Principal who set up the school has left, and Ofsted are reporting on the inexperience and low morale of a staff team that do not have consistent boundaries and expectations. Managers and staff working directly with children do not demonstrate an approach to safeguarding children that is consistently good. Teachers do not consistently support children to develop appropriate behaviours.

Such have been the difficulties recruiting and retaining suitable managers and staff, Oasis is accommodating fewer children than the home is currently registered for.

It is still early days of course and perhaps not surprising that the Secure school is judged to require improvement to be good. There are plenty of positives in the inspection report. Children say they can speak to staff if they have any worries or concerns and benefit from key-work sessions.  When incidents between children occur, staff respond sensitively and make effective use of de-escalation techniques. As a result, the need for physical restraint is kept to a minimum and is proportionate. Children speak positively about the range of activities on offer at the centre.

History shows that all too often the noble intentions behind secure institutions can give way to an altogether more troubling reality, most notably in Secure Training Centres. There are certainly some warning signs for the Secure School.  Several staff members are reportedly deeply concerned about the current staffing arrangements, demonstrating to the inspectors “a disconnect between the views and experience of staff and the senior leadership team”. 

Fixing this is surely the top priority for a new Principal when they start work. 

Learning the Right Lessons

It is entirely understandable that families whose lives were so tragically torn apart by the actions of Hashem Abedi should find it so hard to believe he has allegedly caused yet more serious harm, while serving his sentence. Our thoughts should primarily be with them, and with the prison officers seriously injured at Frankland High Security Prison. Let us all hope they make a full recovery.

Less understandable is the rush to judgement from some commentators about the lessons to be drawn from the awful event. One former Prison Governor and Inspector has written for example that the concept of self-catering facilities in ultra-high secure units is “utterly insane.” Their use in Separation Centres has now been suspended.

But the Prison Inspectorate expects prisoners in Separation Centres “to have a varied, healthy and balanced diet which meets their individual needs, including religious, cultural or other special dietary requirements and safety and hygiene regulations.” One indicator that this expectation is being met is that “prisoners can cater for themselves.”  So there is a rationale for the policy. It is not insane, though it looks to have been badly implemented in this case.

After a shocking assault, it is easy to argue that the risks posed by a particular prisoner should have meant they were prevented from accessing the means of committing it, in this case culinary items.

I have never visited the Separation Centre at Frankland but according to the Inspectorate report three years ago, it was “on a narrow corridor. There was a small room for association and an area for prisoners to cook and prepare food.”  In a small unit, how feasible would it be to stop one prisoner there from using that area?

With hindsight, that is what should have been done in this case. Perhaps, the alleged perpetrator was unsuitable to be placed in a Separation Centre, whose primary purpose is on preventing the radicalisation of others. Should he have been in another form of unit with closer supervision?

We need to trust the police investigation and independent review announced by the Ministry of Justice to answer those questions. They need to get to the bottom of what happened in the Separation Unit and to produce necessary recommendations for changes in how it is run.  I do not think it is helpful to anyone to speculate in advance.

A Farewell to Arm’s Length Bodies?

 

What will the recently announced review of quangos mean for criminal justice?  Like all Departments, the Ministry of Justice (MoJ) is having to justify the existence of Arm’s length bodies (ALB) as part of the exercise to drive out waste and inefficiency and rewire government.

Could this spell the end for His Majesty’s Prison and Probation Service (HMPPS) or for the Youth Justice Board? Could it lead to the amalgamation of various external bodies that scrutinise prisons? The surprise decision to scrap NHS England means nothing is off the table.

The Cabinet Office review will be looking at whether the current arrangements give ministers appropriate oversight of policy of national importance or involve duplication of work between their departments and ALBs. The need for stakeholder engagement will not be a sufficient reason for an ALB to exist although a clear justification for independent advice to ministers will.

So where might that leave the  35 public bodies supporting the MoJ?

The review comes in the midst of the row between the Lord Chancellor and one of its ALBs, the Sentencing Council, which in part involves an alleged democratic deficit in the Council’s work.

While the long term role of the Council itself is being reviewed separately, the differential access to pre-sentence reports about which Shabana Mahmood is so concerned is mirrored in the policy on bail reports adopted by HMPPS earlier this year.  

Could this apparent embarrassment prompt Ms Mahmood to tell the review that she wants to take closer responsibility for prisons and probation in some way? Under the current arrangements,  the HMPPS Chief Executive should consult the Secretary of State and the permanent secretary, and regularly share information, “on the handling and management of operational matters with particular focus on those that could give rise to substantial public, ministerial, Parliamentary or media concern.”

But that may not allow for the level of oversight that Ms Mahmood would wish to exercise. Announcing the intention to take the services into the heart of the MoJ could also be a useful line to take when her conservative Shadow Robert Jenrick returns to this particular fray after Easter.

On the other hand, many consider the future of probation at least would be best served away from Whitehall officials let alone Westminster politicians. The government is due to conduct a strategic review of probation governance. Recent administrative efforts have sought to bind probation more closely to prisons through the “One HMPPS” initiative. But all bets are off if there’s “No HMPPS.”

The Youth Justice Board managed a last ditch escape from the Coalition’s bonfire of the quangos in 2011. Since then it has lost its role in relation to youth custody, and may be vulnerable this time round. A review of its effectiveness, due to report to Justice Ministers shortly, could be enough to save it but some changes to its role are likely if it is spared again. 

The Cabinet Office may also look hard at the organisation of the bodies which monitor prisons. There are clear distinctions in the roles of the Prison Inspectorate, Independent Monitoring Boards, Independent Advisory Panel on Deaths in Custody and Prison and Probation Ombudsman. But there is scope for some consolidation. Although as recently as 2020 there was a consultation on Strengthening the Independent Scrutiny Bodies through Legislation, the MoJ would be wise to offer to look again at the possibility of merging some of the bodies or functions.

In return the MoJ might propose restoring one of the bodies abolished in 2010- the Inspectorate of Courts Administration. When it was scrapped, the government claimed that HM Courts and Tribunal service “now has robust audit methods and management information processes in place, which negates the need for independent inspection.”

Given the backlog, concerns about the single justice procedure and radical reforms likely to emerge from the Leveson review, Ministers and the public need an independent organisation to report on what is going on in the court system.

Parliamentary Undersight: The Strange Case of the Sentencing Council

 

If the Justice Secretary’s draft law aims to surgically remove the offending part of the Sentencing Council’s guideline, I hope she never operates on me.

It will block guidelines about obtaining pre-sentence reports (PSR) being “framed by reference to the personal characteristics of an offender” but doesn’t clarify which.   Race, religion or belief and cultural background are spelled out, but the explanatory notes to the bill make clear this is a non-exhaustive list.

So will the law prevent the guideline saying that a PSR will normally be considered necessary for any of the other cohorts currently mentioned:  pregnant women, young adults or people with chronic health conditions for example? 

Parliamentary Counsel won’t have had much time to draft the law, but it seems unsatisfactory. Unless that is, the Justice Secretary is uncertain about allowing what she calls differential treatment for these other groups. But a fast track procedure for law making is hardly appropriate for amending and debating these questions.  

In the longer term, the role of the Sentencing Council is being added to the long list of matters being reviewed by the Justice Ministry.  The Justice Secretary told Parliament “we have uncovered a democratic deficit” and proposes to fix it as part of the post Gauke sentencing reforms.  

It’s fair to say that until the last month, the Council has excited limited political attention over the 15 years of its operation. So what has been the Council’s relationship with Parliament and with government before the current brouhaha?

As for Parliament, the Justice Committee is always consulted about guidelines and generally responds. It periodically invites the Council’s Chair to talk about its work but the last of these "regular evidence sessions" was in  2021.  Additionally, shortly after his appointment, the current Council Chair Lord Justice William Davis did give oral evidence in December 2022 to the Committee's inquiry into Public Opinion and Understanding of Sentencing and spoke at an event to launch the inquiry report in November 2023. Davis also gave evidence to a House of Lords Committee inquiry into Community Sentences in May 2023.

At the December 2022 evidence session, the Justice Committee Chair told Davis he hoped " this will be the first of a number of constructive discussions that we will have". But there don't seem to have been any formal evidence sessions focussed on the work of the Council since, at any rate public ones.  

This is despite the Council’s objective of increasing parliamentarians’ understanding of their work “including by discussing how best to establish regular evidence sessions with the Justice Committee”. The Council was  planning to attend regular evidence sessions from the first quarter of 2022 but appearances in Parliament  since then have been infrequent and ad hoc, providing limited opportunities for scrutiny. 

As for MPs more broadly, Professor Tony Bottoms’ internal review of the Council in 2018 reported that it once held an awareness day in Parliament but “attendance by MPs other than those on the Justice Committee was poor.” The Council rejected Bottoms’ suggestions that they hold a further event for MPs and to open itself up to a television documentary about its work. Given the election of so many new MPs last year, the Council could certainly revisit the first of these ideas.

As for government, an official representing the Lord Chancellor attends Council meetings, presumably as an observer.

In 2016, the Ministry of Justice and Cabinet Office exempted the Council  from the need  to undergo the kind of formal regular review normally undertaken of arm’s length bodies. This was “due to its unique role in maintaining the constitutional balance between the executive, legislature, and the judiciary.”  (Incidentally, Robert Jenrick seems to have been a Parliamentary Private Secretary to the then Justice Secretary, Liz Truss, when that decision was made).

When in 2020, the Council itself consulted about what its priorities should be for the next five years, the Justice Committee and then Lord Chancellor responded although no other MPs.

The resulting strategy comprises five objectives, the third of which is that the Council “will explore and consider issues of equality and diversity relevant to our work and take any necessary action in response within our remit. One of the actions to achieve this is to “ensure any evidence of disparity in sentencing between different demographic groups is taken into account when deciding whether to develop or review a guideline by including this as a consideration in the Council’s criteria for developing and revising guidelines.” The controversial elements of the Council’s revised guideline on the imposition of community and custodial sentences in large part flow from this welcome commitment.

Back in 2016 I wrote what I hope was a constructively critical report about the Council for Transform Justice  and elaborated on it four years later. The second report argued for a fundamental debate about how the Sentencing Council can play a greater role than it currently does - as an expert body in the development of more effective sentencing law, policy and practice in England and Wales”.

I suppose we might get that debate now although in the wake of the unedifying political pile on during the last month I have my doubts.