I hate to say I told you so, but I told you so.

 More trouble at the new Secure School. Ofsted visited in April after concerns were received about children’s safety and well-being. Inspectors found  a high number of internal doors need to be replaced. This is because they are not sufficiently robust and "do not prevent children from passing through them when they are locked, particularly when children are upset or frustrated and are demonstrating this through their behaviour".  Presumably they'd to all intents and purposes been kicked in. 

This would be extraordinary enough given that nearly £40 million was spent fitting the premises out before it opened last summer. 

But the inspectors go on to say that "several doors were badly damaged during a short period. This caused some anxiety for children and staff. There has been an increase in instances of children making weapons out of everyday items. Some children say that this is because they have not always felt safe recently." 

This sounds a euphemism for serious disorder to me. 

As a result the number of children living at the home run by Christian charity Oasis Restore has had to be reduced. There were just 9 when Ofsted inspected, when it should be taking 22 (and eventually 49). It looks like the Secure School currently has no Principal and no Registered Manager.

I have never visited the place but unlike some who work in the sector, I've always had worries about an organisation with no experience of secure care being able to cope let alone implement their lofty ambitions to revolutionize youth justice. In the same building 30 odd years ago, Medway Secure Training Centre (STC) suffered a serious disturbance not long after opening. Deja vu all over again?  

Four years ago I wrote that "Given the inappropriateness of Young Offender Institutions and STCs, there is part of me that wishes this initiative well. But it looks too much like a risky experiment.  Secure Childrens Homes already offer a proven model – it’s they which should be being scaled up. Instead the number of places has gone down. 235 last year compared to 250 in 2015 not long before the Secure School was dreamed up. 

A Good Try- but can it be Converted?

 

I met David Gauke a few years back when our sons were on opposite sides in a rugby match. I was impressed that he recalled our touchline conversation when we talked briefly again this January at a Sentencing Council seminar. He told the seminar that whatever else it might do, there was an arithmetical imperative his Sentencing Review’s recommendations should effect a sustained reduction in demand for prison places to prevent continuing recourse to the emergency measures we’ve seen over the last couple of years.

His wide ranging and largely welcome report is more a review of the execution of sentences than it is of sentencing. It says little about addressing the rampant sentence inflation which the first part of the review identified as the cause of the capacity crisis.

But it does contain important proposals which are estimated to result in a fall in the prison population of 9,800 places. Unfortunately, the report lacks the kind of detailed cost benefit analysis that generally accompanies legislation in the form of an Impact Assessment signed off by ministers. That’s a shame, particularly as the Lord Chancellor’s rejection of some of Gauke’s proposals will undoubtedly bring the 9,800 figure down. But by how much it’s hard to say.  

Take the proposal that short custodial sentences are used only in exceptional circumstances. Gauke reckons this will save 2,000 places. But a similar measure proposed by the last government in 2023 was estimated to save between only 200 and 1,000 places. The Lord Chancellor has described the Gauke scheme as “a presumption against custodial sentences of less than a year – in favour of tough community sentences.” The 2023 version involved a duty to suspend a prison sentence- a subtle but important distinction which may account for the difference in the assessments.  But without the detailed workings it’s impossible to say.

A larger reduction in prison places is expected from Gauke’s early release proposals. Unfortunately, the Lord Chancellor hasn’t accepted them in their entirety. For those serving Standard Determinate Sentences (SDS), Government plans to ditch an upper limit to the proportion of the sentence they serve in prison will eat into the 4,100 places that would be saved. Gauke wanted the more dangerous prisoners serving Extended Sentences to be able to earn a Parole hearing at the halfway point of their sentence. MoJ says no and they’ll have to continue to wait until two thirds has passed. So the 600 places that would have been saved presumably won’t be.

The government say they’ll “introduce a tougher adjudication regime so that bad behaviour in prisons is properly punished”. Under the earned release scheme, offences against discipline, such as engaging in any threatening, abusive or violent behaviour, or possessing unauthorised articles would result in the offender’s release point being pushed back. It’s not clear that the Review team took a tougher disciplinary regime into account when assessing the numbers of SDS prisoners who’ll qualify for release at the earliest point.

The Lord Chancellor told Parliament today that as things stand, they’ll be short of 9,500 places by 2028. Gauke’s certainly had a try at bridging the gap. But can it be converted?

 

 

 

 

Sentencing Review: Three Things to Look Out For

 

Unless something’s been kept under wraps, many of the broad recommendations of the Sentencing Review have already been trailed as has the Government’s likely response. The central elements seem to comprise reducing short jail terms, a new scheme of earned early release and stronger community sentences. Here’s what I’ll be looking out for tomorrow.

Short Sentences: Chalk or Gauke?

When he was Lord Chancellor six years ago, David Gauke saw a “a very strong case to abolish sentences of six months or less altogether, with some closely defined exceptions, and put in their place, a robust community order regime.” He didn’t get a chance to act on it but five successors on, Alex Chalk’s Sentencing Bill  would have introduced a presumption on the courts to suspend short sentences of 12 months’ custody or less.  The election intervened so will successor number six go for abolition or suspension and what will the upper limit be? Perhaps more than 12 months?

What will prisoners have to do to earn early release?

It’s been reported that those qualifying could spend a third of their jail term behind bars with a further third  at home subject to electronic monitoring and the final third on licence with a liability to recall. Those who don’t earn the extra freedom are likely to spend a half their sentence in prison. The proportions may turn out to be slightly different but the bigger issue is what to do to get out early?

One option is simply to reward good conduct, measured presumably by the avoidance of disciplinary sanctions or reaching and maintaining the enhanced level on the scheme of Incentives and Earned Privileges. While this looks straightforward, developing a fair decision making process will have challenges. Prison Inspectors said last year that “staff regularly failed to challenge poor behaviour on the wings. In some prisons, rules were broken with near impunity because leaders had not established clear boundaries, and drug testing and adjudication processes were not used effectively”.

Another, or additional option is a Texas style points system which gives credit for participation in purposeful activities such as work or education or more formal rehabilitation programmes  aimed at addressing offending behaviour.

Given the limited and variable access prisoners have to positive activities even in training prisons, this looks even more problematic.  The Chief Inspector told MPs last week that assessments of purposeful activity have been consistently the lowest scoring of their four healthy prison tests since 1982. Only two out of 32 closed prisons inspected in 2023-24 were rated good or reasonably good for purposeful activity. Questions of fairness arise if prisoners in those two jails can reach the threshold for release more easily than those in worse performing jails who simply don’t get the opportunities to accumulate the points needed to reach the threshold for release.

Whatever the scheme entails, the Prison Service will need to devise a fair, timely and efficient process for assessing eligibility. The Inspectorate reported last year that staff  shortages were impeding effective offender management and prisoners’ ability to work through their sentence plans. How will a Lord Chancellor very committed to equality before the law make sure prisoners have a level playing field?

Will community supervision be able to step up to the plate? 

The new arrangements will entail a welcome shift of emphasis away from imprisonment to the community. As well as the need for the spending review settlement to reflect this, there looks to be a specific problem with electronic monitoring, highlighted in a recent Channel 4 documentary.

Financial penalties have been levied on Serco every month since they took on the service on 1 May 2024 because of poor performance. It turns out that their proposal to run the tagging scheme was classed as an Abnormally Low Bid but eventually approved.

If the new arrangements are to work well, the government will need to ensure not only that the Probation Service is given the resources they need to do the job but that tagging is run effectively and efficiently. What will the government do to strengthen supervision in the community?

No doubt, the Review and response to it will raise many other questions; for example if and how the new release arrangements will interact with existing processes like Home Detention Curfew?  But given the capacity crisis, perhaps the biggest one of all is how many prison places the new arrangements are expected to save. I hope there is a detailed impact assessment alongside the government plans but I am not holding my breath.

Dutch Lessons

 

Prisons at bursting point, insufficient staff to run them and maintenance backlogs threatening to make them unusable. This isn’t the UK but the Netherlands. A country not long ago renting out its unused facilities to other countries is now having to consider putting mattresses in cells to increase its own capacity.

Delegates at the ICPA Research Symposium in Belfast heard senior officials from the Dutch Ministry of Justice and Security tell an all too familiar tale- prisons closed when numbers fell, sentences (particularly for drug offences) increasing in length and politicians loathe to spend the necessary financial and political capital needed to cope with the looming crisis let alone avert it.

Until now. The Dutch have embarked on developing a ten year strategy for a sustainable justice system- a kind of Gauke Review plus- looking not only at sentencing but at the drivers of crime, at public health and drug policies and at the shape of the correctional response that might be needed in the future. As the conference heard “the problem is too big for the prison system.” Delegates from England and Wales were left thinking if only we’d set up something like that.

The Dutch rate of imprisonment per hundred thousand of the population is still well under half what it is in England and Wales but like us the Netherlands is being forced to take some unpalatable short term measures.  These include using police cells and reopening some closed prison units.

In addition, there are currently 8,000 people sentenced to prison in the Netherlands who are at home. They are on a waiting list to serve their term when a space comes up.  

It’s not ideal in all sorts of ways but I’m surprised the so called prison queue has not been debated here as part of the plans to counter the prison capacity crisis which have been further laid out by the Lord Chancellor this week.

Could courts not be asked to keep out of prison all convicted offenders who have successfully spent their remand period in the community? If they do impose a custodial sentence, could it not be suspended, deferred, or postponed, depending on the circumstances?   

Perhaps Mr Gauke’s review, expected imminently, will propose it.

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.

 

Why the Justice Secretary is Wrong and Politically Inept on "Two tier Justice"

 

As the Guardian suggests, the government may be dipping their toe in the culture wars in their row with the Sentencing Council; but they may well end up drowning. Why?

First because they are so fundamentally wrong to accept the conservative view that long overdue and hard won efforts to address racial and other disparities in criminal justice amount to two tier justice.

Second because they have not defended the Sentencing Council, they lay themselves open to attacks on a range of other agencies who have started to take racial and other equality issues seriously. The College of Policing Race Action Plan sets out ways to improve outcomes for black people who work within or interact with policing; and the Crown Prosecution Service  action plan aims to tackle disproportionality in charging decisions.

For the Justice Secretary perhaps the biggest issue lies with probation, for which she is directly responsible. The Court Services Policy Framework issued in January 2025, under her watch,  provides guidance on the Bail Information Service which enables courts to make more informed decisions regarding the suitability of a defendant for bail. Lo and behold the key criteria to be taken into consideration for the identification of priority cohorts include

 • vulnerable defendants, such as those with mental health conditions and learning disabilities
•  young adults (18–25 years old)
•  women, pregnancy and maternity
•  defendants from ethnic minorities
•  transgender defendants

This is pretty much the list of cohorts to which the Justice Secretary has taken exception in the Sentencing Guideline. It seems inconsistent to say the least to decry "differential treatment" in sentencing while promoting it at the remand stage.  

The policy framework also includes the wholly sensible view that “to better understand the defendant, their offence/offending, capacity to desist or ability to comply with a sentencing proposal, it is vital that the pre-sentence report assessment considers the defendant’s background and culture and whether they have experienced trauma from experiences of racism or discrimination”. Is this something Ms Mahmood will now feel the need to overturn? I hope not.
If the Justice Secretary cannot support these kind of measures to address social inequality and discrimination, perhaps she is in the wrong job.

A Burning Issue

 

Two reports this week about HMP Forest Bank, the privately run prison in Manchester. Both the national Prison Inspectorate  and local Independent Monitoring Board are broadly in agreement about the state of the Category B reception and resettlement prison- rising rates of violence and use of force, continuing problems of drugs and concerns about the attitudes of some staff members.

Surprising to my mind is the fact that neither report makes reference to one striking fact about the prison: according to a parliamentary answer, last year there were 137 cell fires at the prison, the highest number of any establishment in England and Wales, and up from 91 the in 2023. There were just 13 fires there in 2016.

The prison was subject to various enforcement notices from the Crown Premises Fire Safety Inspectorate in 2018, thankfully all complied with.  But it seems a major failing that the two main prison oversight bodies haven’t reported on last year’s troubling figures.

The Prisons Minister in the last government said that during 2024-25, “H M Prison & Probation Service will introduce an ignition-free Safer Vape Pen to replace the existing product, which is the source of approximately 80 per cent of fires set” across the prison estate. There does not seem to have been any announcement on this.

I know this is a topic I’ve banged on about before but it really deserves to be taken with the utmost seriousness.

 

A Distressing Report

 

Extraordinary levels of self-harm are reported among the women at HMP Eastwood Park today. In a distressing report, the Independent Monitoring Board (IMB) found that in the 12 months to the end of October last year “seven of the most prolific individuals were responsible for 4,204 incidents”.   Over a five week period, one prisoner subject to constant supervision used J-cloths as ligatures in excess of 80 times (14 times on one day).

The IMB were also deeply concerned that force was used on prisoners over a thousand times, double last year’s figure.

While staff were observed employing excellent verbal de-escalation practice in extremely challenging situations, the watchdog notes that “compassion burnout” together with injuries and attacks from prisoners during restraints “seemed to have affected the overall goodwill of some staff”.  Similarly, in one example, the prisoners became resentful when they were locked in while a segregated prisoner had their hour out of cell.   

The IMB tell the minister that it’s essential that individuals who prolifically self-harm are more evenly distributed throughout the women’s estate to help reduce the adverse pressure on the regime and staff in a single prison.

More significantly they argue that use of force could be reduced if more women with complex trauma, neurodiversity or serious mental health issues were diverted from the prison system altogether.

The report says that in the second six months of the reporting year, 21 women, both sentenced and on remand were referred for transfer to hospitals. 11 actually moved but eight referrals were refused by hospital trusts, as they “did not appear to meet their admission criteria”.  

The new Women’s Justice Board must surely address as a priority the questions of where the most vulnerable and challenging women should be placed within the prison system; and whether there are sufficient options for managing them outside where necessary.  

If there are not, some of the funds earmarked for prison expansion should be used to develop more appropriate community based and institutional alternatives for women; and legislation promised after the Gauke review should enable them to be used more easily.

Mixed Messages on Fire Safety in Prisons

 

I was surprised to read in today’s inspectorate (HMIP) report on HMP Styal that the 15 detached houses which accommodate most of the women prisoners there “needed urgent and significant investment to address fire safety concerns”.

Why the surprise? Because 18 months ago the Independent Monitoring Board (IMB) at the Cheshire prison noted in their 2022-23 report that the houses were “now fully compliant with fire safety regulations.” 

Prior to that, fire risk to prisoners was so bad at Styal that the Crown Premises Fire Safety Inspectorate (CPFSI) apparently issued an enforcement notice. According to the IMB report for 2021-22, “prison staff have endeavoured to reduce the fire risk for prisoners in the affected houses by implementing measures such as not locking them into their cells at night and completing a volumetric exercise on all prisoner property within the prison. This enforcement notice was withdrawn on March 22, 2022.”

Presumably this was because what HMIP today describe as “fire safety concerns” had been addressed.  For some reason the notice about Styal does not appear in the CPFSI enforcement register , although notices relating to other prisons do. 

While this may seem a technical matter, last year there were 26 cell fires at Styal. While most if not all are likely to have been in the prisons cellular units rather than the houses,  there were only 6  in the establishment in the preceding year.

Given the scale of potential consequences of fires, it’s surely important that the adequacy of fire safety is properly monitored by oversight bodies.  HMIP seldom mentions it in their reports, IMB’s more so but inconsistently.  In their report on HMP Wayland last week, the IMB expressed dissatisfaction at “the failure to provide a significant number of additional anti-barricade cells, which were promised following a very serious cell fire some years ago.”

As for CPFSI, it’s responsible for ensuring that fire safety standards are maintained by regulating compliance with the Fire Safety Order in over 10,000 Crown Premises, including prisons. But it’s under resourced to do that job effectively.

It’s a legal requirement to make all cells Fire Safety Compliant which the Prison Service have estimated would cost £1.4bn. But that was before one of the main contractors doing the work, ISG, went into administration so the bill will be higher.

It’s good news that the Prison Service has agreed with CPFSI that any of the 23,000 cells which currently don’t meet standards will be “taken offline” at the end of 2027 if they haven’t been “remediated” and do not have the necessary in-built smoke detection.  

But given funding and population pressures, this remedial work needs much better oversight to ensure progress is being made. HMIP, IMBs and CPFSI need to get their act together on this.

The Public Accounts Committee are looking at the condition of government properties and should recommend that they do so.  

Council Attacks

 

What on earth is Justice Secretary Shabana Mahmood doing recommending that the Sentencing Council “reverse” its new guidance on the imposition of community and custodial sentences?

She seems to object to the idea that a court should normally ask for a pre-sentence report in the case of an offender belonging to a cohort at risk of unfair outcomes.

We know that for certain crimes at least, ethnic minority defendants are treated more harshly in the courts than white; and that the pains of imprisonment are particularly severe for women, for young people and for other groups.

I’d have expected a Labour Justice Secretary to welcome guidance which seeks to address these disparities in a constructive manner. But instead it has caused her “displeasure” because she does “not stand for any differential treatment before the law, for anyone of any kind”.  The Prime Minister appears to have backed her in a Delphic tweet saying “the British people rightly demand the security of safe streets and justice done. We’ll sort out any system not working in their interests”.

I don’t imagine Mahmood consulted her cabinet colleague David Lammy whose 2017 review found pre-sentence reports “may be particularly important for shedding light on individuals from backgrounds unfamiliar to the judge.”  Instead she accepted the absurd claim from her Conservative shadow that this was irrefutable evidence of two tier justice. If anything it shows the opposite.

I’ve not always been the greatest fan of the Sentencing Council, but this guideline is the best work they’ve done. It strongly encourages courts to use prison as a last resort and should help to replace useless short jail terms with more constructive sanctions outside.

If the government cannot hold the line against an opposition assault about pre -sentence reports, I don’t hold out much hope for the Gauke review.   

Jury's Out

 

I was supposed to have my first experience of jury service this week. Having blocked out my diary for a fortnight as required, I reported dutifully at the Crown Court at 8.30 on Monday morning. The waiting room was soon packed with almost two hundred people, most of whom were slowly but relatively surely allocated to particular courtrooms.

Sitting juries went back to trials which started last week, new ones were randomly distributed among the remaining courtrooms, initially in groups of 16 before being whittled down to 12. The waiting room gradually grew less crowded as trials got underway but plenty of people were still there when my group was told we could go out for lunch.

When we came back, we sat around until 3.30 when a Jury Officer gathered us together to say there were “complications” in the case and we could go home and should return tomorrow at 10 a.m.

On Tuesday, other than a roll call on arrival, there was no communication with my group until noon when we were told we could go home. Our trial was apparently “ineffective”, but they couldn’t say more.

Wednesday saw a more promising start as we were reallocated to a trial in a different courtroom. We would be needed for two to three days- maybe stretching into early next week. An hour or so later we were summoned to sit in the assembly area for those about to go into court. Our time had seemingly come.

Sadly not. Two trials scheduled for our new courtroom had “cracked” – in one the defendant had pleaded guilty, in the other they hadn’t turned up.

We could go home- and much to our surprise were told our service was now over. Apparently, sometimes they summon more people than they need and have spares.  We were told how to complete our expenses forms and that we won’t have to do jury service again for two years. As one of the spares, I headed home to complete my expenses.  

Although I met some interesting people, it hasn’t been the most satisfying of experiences. I’ve no idea how typical it is. I may just have been unlucky.

Lord Leveson’s review of the courts is looking at “how processes through charge to conviction/acquittal could be improved to maximise efficiency. This includes looking at the processes of the courts but also those of partner agencies in the criminal justice system which affect the efficiency of the criminal courts”.

I don’t know if he’ll consider the experience of jurors at all. I for one hope he does.

Reviewing the Situation

 

When New Labour came to power in 1997, they brought with them a raft of detailed plans for reform in many areas of domestic policy. In criminal justice, the most striking example was the radical proposals for strengthening the response to youth crime at national and local level. Within a few months, the government started to put these into practice often favouring local testing before a national rollout.  I remember joking in a talk that the new government had more pilots than British Airways.

27 years on, Keir Starmer’s team appear to have very few oven ready measures to implement. In criminal justice at least, what’s being offered are not worked up ideas for reform capable of implementation - but a series of reviews designed to produce the ideas. More reviews, one might say, than Tripadvisor.

Yes, last year’s election came sooner than anyone expected, but in contrast to the Blair government, there seems little in the way of a proactive agenda crafted during the long years in opposition. The one welcome exception is the creation of the Women’s Justice Board which has been set up to reduce the number of women in prison.

To be fair the Labour Manifesto did promise two reviews – on sentencing and on probation governance. The first is underway. Given its enormous scope, tight timescale and the unpromising political climate on law and order, David Gauke’s task in curbing sentence inflation looks someway between daunting and forlorn.

Another herculean task faces Sir Brian Leveson who has been asked to review the criminal courts. Like Gauke, the terms of reference are wide, the issues both complex and fundamental and the deadline short. He is expected to do much of the work of the Royal Commission on the Criminal justice Process promised by the Conservatives in 2019 but not delivered in any way, shape or form.  

In addition to these two mammoth exercises, separate reviews are underway on the effectiveness of the Youth Justice Board and how girls under 18 in custody should be accommodated. There has been a commitment to review the Single Justice Procedure although this may fall in Leveson’s remit.

There is nothing so far on probation governance although the Justice Secretary has set out what she terms her vision for the service. The Justice Select Committee has asked interesting questions about the potential for English devolution and the steps being taken to advise probation services on the various options available to them in newly devolved local administrations and combined authorities.

While there is a case that Labour should have given more thought to all of these matters before the election, few would disagree with the need for improvements to be made and that reviews could kickstart the process. I’m not convinced that can be said about the latest review to be announced.

Anne Owers will be looking at why prison supply and demand did not meet and make recommendations that may help future governments avoid the cycle of repeated prison capacity crises.  

I am not sure how much this will add to the sum of human happiness.

The National Audit Office and Parliament’s Public Accounts Committee have already been looking at how Government is modelling, understanding and planning for the number and type of prison places it needs. The Gauke and Leveson reviews aim to address the substantive reasons for the 2023-24 crisis.

I can only think that this latest exercise is designed to remind the public how badly the last government managed the system in case the current one struggles do much better.   

Youth Justice Futures

 

Back in 2006, I proposed a fundamental shift  in the way we respond to young people in conflict with the law, with responsibility in government moving  from the Home Office to the Department for Education (DfE) .

The outcomes for children which then drove the DfE’s work – being healthy, staying safe, enjoying and achieving, making a contribution and achieving economic well-being – were as appropriate for children in trouble as to any others and a change in the machinery of government was needed to ensure properly joined up policy and practice.  The Youth Justice Board, from which I was standing down after eight years could continue to provide specific leadership on youth crime where necessary but under the aegis of a department promoting opportunities for children rather than focussed on public protection.     

A year later youth justice was moved -not to Education- but to the newly formed Ministry of Justice, along with most matters relating to criminal law and policy apart from policing.  Is it now time for DfE to take over?

Shortly before Christmas, Lord Chancellor Shabana Mahmood was asked at the Justice Committee whether she might consider such a change. “I think it is a conversation”, she replied. “I am not shutting the door on that conversation. I would be willing to discuss further with DFE colleagues. Ultimately, it will be up to the Prime Minister whether he wishes to make a bigger machinery of government-type change”.  

The next day, Justice Minister Sir Nicholas Dakin announced a review of the Youth Justice Board, led by Steve Crocker a former President of the Association of Directors of Children’s Services and ex YOT manager. The review will “consider whether the YJB’s statutory functions remain useful and necessary, where these functions should sit, and whether the YJB’ s current delivery model remains appropriate”.  Dakin told MPs the review will also be key to assessing how the YJB and department should work together to deliver ministerial priorities and deliver value for money.

These kind of reviews of arm’s length bodies are usually done by senior civil servants so could Crocker’s appointment signal a wider ranging inquiry into the governance of youth justice?  He will lead “a period of stakeholder engagement across England and Wales”, although I haven’t seen any Terms of Reference or calls for evidence.

For Crocker to recommend a change in departmental sponsorship might be seen as the tail wagging the dog but those of us who would like to see it happen should say so. The Child First framework adopted by the YJB would certainly sit more comfortably alongside childrens social care than prisons.

A recent Parliamentary Question about Young Futures hubs- a hitherto Home Office plan to  prevent children being drawn into crime – was this week answered by a DfE Minister.

I may be reading too much into it, but could it augur broader and long overdue change?

Preventing Deaths in Prison

 

Last August, after the inquest into the self-inflicted death of a prisoner serving an IPP sentence at HMP Swaleside, a Ministry of Justice spokesperson said: “Our thoughts remain with the family and friends of Sean Davies.”

They did not remain long it seems. The Prevention of Future Deaths Report (PFD) issued by the Mid Kent and Medway coroner about Mr Davies’ case is one of seven such reports relating to people who’ve died in prison which did not receive a timely response from the authorities last year.

Coroners issue PFD reports when they hear evidence of matters giving rise to concern and form the view that there is a risk that future deaths could occur unless action is taken. Recommendations can be directed at the Prison Governor, HMPPS and/or the Ministry of Justice- and private prison companies where appropriate.  

They are under a duty to respond within 56 days (though the date may be extended) with details of action taken or proposed to be taken, setting out the timetable for action- or explain why no action is proposed.

As well as the seven prison cases, the total of 60 “non-responses to PDF reports” published today include two cases where people died shortly after leaving prison and one where a person was serving a community sentence.

Among the issues raised in the prison cases are the inadequacy of staff training in first aid and on the suicide prevention scheme; a lack of national specification in respect of prison healthcare units; and shortcomings in how welfare checks are conducted on vulnerable prisoners.

One of the most far reaching recommendations concerns how the duty of candour after a death in custody applies to the prison service and those individuals working for it whether employed directly or through a private provider.   

It is disappointing that responses have not been made about these important matters on time, all the more so given the Ministry of Justice's responsibility for the Coroner system. 

In a letter to the Justice Committee last month, Justice Minister Alex Davies-Jones said the Government believes that "Prevention of Future Death reports are vital in contributing to public safety by ensuring that lessons are learned. Our expectation is that recipients will have systems in place to consider the reports they receive, and that they will take very seriously what those responses say about actions that will be taken".

She needs to speak to her colleague Lord Timpson to ensure that the Ministry's own house is in order and that necessary action is taken to keep people safe in prison and after release.