Will the Conservatives' short sharp spell in custody change behaviour ?

I spent much of last week at the 13th UN Congress on Crime Prevention and Criminal Justice in Doha. The five yearly event, opened for the first time by the UN Secretary General, comprises not only formal deliberations of member states but a rich programme of ancillary meetings mainly run by civil society organisations. These provided the 4,000 participants opportunities to discuss everything from prison overcrowding to wildlife and forest crime, from reducing acid attacks on women to match fixing in sport. Inevitably a number of meetings looked at the financial, economic and costs of the war on drugs and the disastrous impact it has had on the use and practice of imprisonment around the world.

London based NGO Penal Reform International used the Congress to launch its important report on Global Prison Trends 2015, containing a special pull-out section analysing those links between drugs and prison around the world. Meanwhile,  back in the UK, the Conservative party was publishing its election manifesto. It promised to introduce “a new semi-custodial sentence for prolific criminals, 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”.

Think tanks Policy Exchange and the Centre for Social Justice are each likely to claim the role of midwives for the policy of “swift and certain punishment.” Both have extolled the virtues of Hope Probation, the 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.  At a Doha meeting organised by the Open Society Foundations on progressive drug law enforcement, I asked what the experts on the panel thought about the merits of a “swift and certain” punishment regime for drug misusers.

It turns out that there is a bit of scepticism on the other side of the Atlantic too. 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 newparadigm.

It turns out too that evidence on another popular intervention- drug courts – is a good deal more equivocal than many would like. Evaluations have shown that in terms of impact on aggregate prison populations, in contrast to Hope, reductions in the numbers sent  to prison by Drug Courts in general have been offset by increased sentence lengths for the programme failures that are jailed.  

The lesson seems to be that however benign the policy intent, using criminal justice agencies to deal with what is fundamentally a health issue can be highly problematic. As a recent Open Society report puts it drug courts "do not represent reform if they undermine health and human rights, …. or if they impose punishment for relapses that are a normal part of drug dependence”.

Exactly the same can be said of the new Conservative policy.

Strangeways 25 Years On - The One That Got Away.

It was depressing to hear Lord Woolf express his concern this morning that prison conditions today remind him of the situation in 1990 just before the 25 day riot and rooftop protest at Manchester’s Strangeways prison. Woolf’s inquiry into what happened there and in the other prisons which subsequently saw disturbances – an inquiry to which every prisoner and prison officer was invited to give evidence- remain highly relevant. 

His overarching conclusion was that prisons required a balance between security, control and justice and that the third of these had been neglected. Conditions inside Manchester prison were intolerable in the months leading up to the riot and successive governments had failed to provide the resources for the Prison Service which were needed to provide for an increased prison population in a humane manner.

Of the 12 key recommendations Woolf made, all bar one were accepted by the government in a White Paper published in September 1991. There is no doubt that the inquiry led to important improvements. Slopping out was eventually brought to an end, telephones were introduced into all prisons and an ombudsman appointed to handle complaints.

The recommendation which was not accepted was for a new prison rule that no establishment should hold more prisoners than is provided for in its certified normal level of accommodation, with provisions for parliament to be informed if exceptionally there is a material departure from that rule. Rather than accept this limitation on numbers in individual prisons, the government specifically established a higher measure of “operational capacity” for each.

Yes when this higher level is exceeded, emergency measures have to be taken- early release or the use of police cells. But the response effectively built overcrowding into the prison system in perpetuity. Had the government accepted Woolf’s original recommendation, not only would standards have improved inside jails, but we would arguably not have seen the doubling of the prison population .The sentence inflation introduced by Michael Howard and continued by his successors would have been unaffordable. Parliament would have focussed earlier on the need for Justice Reinvestment- the transfer of resources away from prisons and into the kind of prevention and rehabilitation measures which reduce the need for its use.

Woolf later came to see overcrowding as a cancer of the system which limited implementation of his agenda for reform. There were other factors too, notably the priority given to security after the Whitemoor and Parkhurst escapes. But too many prisoners and too few resources show ,once again, that the cancer never went away and its worst symptoms- like the Strangeways riot- could easily return. 

Cowardice Under Fire : David Cameron, Young Offenders and the Cadets

Today’s coverage of David Cameron’s refusal to participate in a live TV debate with Ed Miliband reminds me of a personal experience of his flakiness back in 1993 when I was working in the Home Office. I was a humble official responsible for advising ministers on juvenile justice policy. David Maclean, the Minister of State was very keen on exposing delinquents to a taste of military discipline. An ex Territorial Army Officer, he wanted to see the Cadet Forces take on more young people who had been before the courts. A meeting was arranged with the Ministry of Defence to discuss the idea.

Maclean could for some reason not attend and I was dispatched across to Whitehall, accompanied by Cameron who was the Home Office Special Adviser. We were expecting to meet some middle ranking officials to chew over the possibilities. Perhaps we might agree some sort of initiative that would satisfy Maclean while reassuring one of the country’s largest voluntary youth organisations that they would not be overrun by the kind of persistent young offenders who were making all sorts of headlines at the time.

When we arrived at the MoD, we were ushered into a room containing not an Under Secretary or two, but a Minister of State, the Permanent Secretary, and the Heads of the Army, Navy and Air Force, all in full regalia. As the minister made some opening remarks, a nervous looking Cameron elbowed me in the ribs and whispered into my ear “You Do It.”

Rightly as it turned out, he had sensed the high level turnout was not to praise Maclean's plan but to bury it.  Already the politician, Cameron decided he wanted nothing to do with a bid which was bound to fail, leaving it to me to put the Home Office proposals as best I could. It was all fairly friendly but the Military Chiefs left us in no doubt that it was a non runner. While  a great idea in principle,  it would be simply too hard in practice. It might put off the “good kids” in the Cadet detachments or worse contaminate them. Parents wouldn’t like it. Maclean’s idea had been firmly and permanently kicked into the long grass (although he was more successful later on in getting the Probation service to develop yomping activities for some of  their lads). Cameron had barely uttered a word.

We wandered back to Queen Anne’s Gate empty handed and went our separate ways, Cameron to the ministerial corridor , me to the third floor . My boss, a cricket enthusiast, thought the Special Adviser had, like Donald Bradman, simply taken a look at the pitch and sent someone else in to bat. I thought he’d been a bit of a coward. 

Property Values : Should we give higher priority to lower level crime?

Whatever you think of their ideas, there’s little doubt that Think Tank Policy Exchange has exercised considerable influence on crime and justice developments in the last few years.  Recommendations for Police and Crime Commissioners, tougher community sentences and bigger cheaper prisons can all be found in PX reports and while their closest links are with the Conservatives, the charity can boast connections with all parties. Tottenham MP David Lammy  is a Fellow and today presented the fruits of his labours :  a report called Taking Its Toll The Regressive Impact of Property Crime in Britain. Somehow I can't see it joining the list of PX policy successes.

All in all it’s a disappointing piece of work whose central tenet that there is a property crime epidemic sweeping across Britain seems manifestly untrue. The latest Crime Survey found thefts to be at their lowest level since the survey began in 1981. Yes 4.2 million is a big number. But a whole range of action has been taken in recent years to address the problem, which gets only cursory attention in the report. Of course there’s more to be done and some of Lammy's recommendations for better prevention and data analysis are sensible ones. But his call for a return to proper neighbourhood policing, focussing on what matters to the community, seems in the current financial climate pie in the sky.

Lammy also overcooks his argument by claiming that that property crime enjoys a "de facto decriminalisation". Try telling that to the 30,000 people sentenced to custody last year for theft offences- about a third of the total who went to jail. Lammy wants courts to send more – at least that’s what I think he means by “implementing a penalties escalator”.  There’s hardly any mention of restorative justice or rehabilitation which could break the cycle of reoffending he deplores.  He’s right that the victims of burglaries and other serious crime deserve better treatment by the system. But his argument is not helped by lumping together a disparate range of offences. At his launch event there was talk of devastating impact on victims in the same breath as concern about London’s 20,000 bike thefts. I’ve had countless bikes nicked over the years.  I actually got one back -the police told me they have loads that owners never reclaim.  But I could not really argue that the police should devote more resources to investigating the thefts. There are just more important things for them to do.

And that is the nub of the problem. The police have to make choices and priorities, all the more if they are to face a further 20% cut in resources. As would be mayor does he really want them to spend more time on low level misdemeanours at the expense of knife crime, child abuse or terrorism; or indeed of the cyber- crime through which more and more people are likely to suffer losses?  

Titaning Our Belts: the Risks of the Wrexham Super Prison

  Today’s announcement that the 2,100 place Wrexham Super Prison will be run by the public sector is something of a surprise.  But with G4S and Serco still on the naughty step and other private providers up to their eyes in Community Rehabilitation Companies, maybe the Ministry of Justice (MoJ) think the Prison Service best placed to lead what is likely to be a controversial and risky project. Today’s ministerial statement suggests that notwithstanding the barrage of expert criticism levelled at the idea of very large prisons, detailed plans and funds to implement the Titan concept are far from decided. The MoJ, it says, "will continue to work with the Welsh government and other partners to agree the necessary resourcing as delivery requirements are finalised".

Such negotiations may be tricky. With a population of 670,000 North Wales probably needs a prison of no more than a thousand at most. Yet it will be getting a facility twice what is needed. Today's statement again emphasises the positive impact of the big new infrastructure project on local businesses. The drivers of prison policy now include job creation alongside efficiency and economy with all three trumping questions of the effect on prisoners.

Lord Carter’s original proposals for Titan jails back in 2007acknowledged the operational challenges associated with large prisons - the possibility of disturbances, difficulties in meeting the needs of special groups and in recruiting and managing large numbers of suitable staff.  These issues still pose risks. He failed to note the change this marks to the purpose of imprisonment - away from an approach which seeks to minimise the exclusionary aspects inherent in detention and towards a model of exile in which offenders are held in large numbers apart from society. While economies of scale may be possible in the provision of food, education or drug treatment, “super jails” will struggle to prepare their residents for return to the various communities in which they live.

The risks and challenges inherent in large prisons are reflected in the widely held expert view that small is if not beautiful then at least less ugly.  The UN Standard Minimum Rules for the Treatment of Prisoners (SMRs) state that “it is desirable that the number of prisoners in closed institutions should not be so large that the individualization of treatment is hindered. In some countries it is considered that the population of such institutions should not exceed five hundred”.  The SMRs date from the mid-1950s but 35 years on Lord Woolf’s 1991 inquiry into the disturbances at Manchester Prison recommended that the size of prisons should not exceed 400. In fact Woolf referred to a 1988 Prison Service Design Briefing which described a capacity of 600 as providing the “optimum balance between the need for effective relationships and control of prisoners and economies of scale”; but the Inquiry report recommended that a 600 place prison would be better run as two prisons with 300 places.

Fast forward 13 years to then Prison Ombudsman Stephen Shaw’s investigation into the fire and disturbance at Yarls Wood immigration centre, where he noted that “developments in prison design since 1990 suggest that the maximum of 400 places suggested by Lord Woolf .... was unduly conservative. Recent prison experience, Shaw argued, demonstrates that larger prisons can operate successfully. He described economies of scale and the efficient use of public money as “proper considerations”, identifying as a critical element “that they must be capable of zoning down – both in times of emergency and to provide safe, more homely units to reflect the needs of different groups within the population.

In approving larger prisons, Shaw seems to have had in mind something well short of Titans, remarking that “1,000 place prisons are no longer unusual”. North of the border, a review of the Scottish prison estate had concluded the optimum size for a new prison was 700. This was partly for reasons relating to management complexity and operational stability, but partly because of proportionality - getting the correct scale of prison in relation to the overall prison population and aligned with other facilities. 

It was the Chief Inspector’s view south of the border which seems to have temporarily slain the Titan concept during Jack Straw’s consultation which followed Lord Carter’s original proposal for Titan prisons. Anne Owers told the Justice Select Committee in December 2007 that small prison do better in terms of safely, respect, purposeful activity and resettlement. “That is because they provide an environment in which people are known, in which relationships can develop, in which people are often closer to home.” The Inspectorate found large prisons, old prisons and private prisons were less likely to be safe.  Smaller prisons were almost two-and-a-half times more likely to perform well in the Inspectorate’s tests of respect than large prisons holding more than 800 prisoners.

Purposeful activity and resettlement scores were not directly related to size however.   Resettlement was predicted by the percentage of prisoners living within 50 miles of the prison; indirectly this finding would suggest local prisons closer to centres of population should produce better results.

Other research has been more equivocal. Back in 1980, a literature review by Farrington and Nuttall yielded no empirical evidence that prison size influences behaviour inside or after leaving prison. Prison offences were less likely in larger prisons, but it was impossible to control for the kinds of inmates in each prison. In a more controlled analysis there was a strong tendency for the more overcrowded prisons to be less effective. Size was only weakly related to effectiveness, and this association was reduced further after controlling for overcrowding. Since then Alison Liebling has concluded that “several analyses of prison life and quality provide empirical support for the argument that small is better”.

In 2013, the Policy Exchange Think Tank ignored this work when publishing a report by a former prison governor with what they described as a potentially “game changing contention”. “For a long time,” they claimed, “it has been assumed, without evidence, that smaller prisons outperform larger ones. But size is irrelevant. When it comes to prisons, we prove that, contrary to popular myth, small is not good and big is not bad.” While the involvement in this report of private companies Sodexho and Carillion raises questions about its objectivity, it seems fair to say that there is no recent conclusive body of research that can decisively inform policy making about the optimum size of prisons in the UK.

Much depends on how facilities are organised, staffed and managed within the perimeter. The benchmarking and outsourcing which ministers claim has saved £300m per year has pushed many prisons close to the edge. Despite welcome improvements at 1600 place Oakwood reported this month, there are still serious problems. It's possible that G4S have had to provide additional resources from their own pockets to address the most serious challenges. If so, the official contract cost of £13,000 per prisoner per year will be a dangerously low benchmark for Wrexham's budget. 

Even if resources are adequate, Alison Liebling is surely right to warn that “larger prisons, with highly competent but remote governors may make the struggle for legitimate regimes and staff behaviour harder”.

Bending Over Backwards for Britain?

I'm no lawyer but it looks to me as if the European Court of Human Rights is continuing a charm offensive with the UK. Yes it found today that the rights of more than a thousand British prisoners were breached when they were prevented from voting in various elections between 2009 and 2011; how could it find otherwise when the blanket ban on prisoner voting first found unlawful in 2005 is still in place? But the decision not to award compensation or even costs to the applicants shows the Court is all too aware of the obstacles that stand in the way of compliance and the likely media nd political  reaction to prisoners receiving pay-outs ordered by Strasbourg.  Understandable perhaps but how far backwards should the Court bend in trying to placate the UK ?   

Back in 2012, the Court found that that the likely detention conditions to be faced by five alleged terrorists (including Abu Hamza) after extradition to Colorado’s ADX Florence Supermax prison would not amount to ill-treatment. This was despite it being described by a former warden as “a clean version of hell” and where prisoners are confined to their cells for the vast majority of the time, apart from ten hours a week in an individualised recreation area. Such were the  contortions required by the Court to rule in favour of the UK, it found itself supporting its finding that opportunities for interaction between inmates at ADX were adequate in these absurd terms.. "While inmates are in their cells, talking to other inmates is possible, admittedly only through the ventilation system". I argued then that the ruling gave a seal of approval to an approach to imprisonment fundamentally at odds with human rights and civilised values.

Similar legal gymnastics were on display in the European Court's recent finding that the UK’s extremely restrictive arrangements for reviewing the sentences of prisoners given whole life tariffs provided  hope and the possibility of release. Admittedly the European Judges were able to pray in aid a ruling to that effect from the UK Court of Appeal which they thought provided necessary and sufficient clarity about the domestic legal position . They swallowed whole the  Court of Appeal’s argument that the (very) exceptional circumstances hitherto required for release  were no longer so limited but that “it is not necessary to specify what such circumstances are or specify criteria. The term ‘exceptional circumstances’ is apparently "of itself sufficiently certain”.

At the time of the Abu Hamza ruling, human rights lawyer Lord Lester called it wise and sensible, hoping perhaps that it would go some way to meet growing criticism of the court as a criminals’ charter and demands that the UK withdraw from its jurisdiction. Like the rulings that have followed, it could equally be described as craven and calculating, doing little credit to a Court too ready to sacrifice the principles it is established to uphold. 

What Can we Learn from Probation Inspectorgate?

When Chief Inspector of Probation Paul McDowell’s links with Sodexo became public last October, it was pretty obvious he would have to quit sooner or later. How could he be possibly be seen as an “independent and authoritative source of fair comment” on Probation when his household income might depend in part on his judgments?  When Ministers made it clear that it was to him that they looked for any warnings that the Transforming Rehabilitation reforms might be in trouble, his number was up.

It’s a disaster that he delayed until yesterday his decision to go. Had he departed three months ago, progress could have been made to recruiting a replacement. As things stand, Probation is undergoing the most fundamental and most controversial changes in its history with a much weaker level of scrutiny than is needed. To its credit the Inspectorate called some major risks and challenges in their report on the early implementation of Transforming Rehabilitation in December.   Their report concluded that “what happens in this next period of implementation, and particularly the way it is led and managed, is crucial to ensuring the longer-term development of quality and innovation in Probation that the public expects”.  Given the concerns that both the National Probation Service and Community Rehabilitation Companies are under prepared and under funded for the changes that came into force on Sunday, the lack of a high profile independent monitor could not have come at a worse time.

Although Chris Grayling said yesterday that the appropriate pre-appointment processes were followed when McDowell got the job, something went badly wrong. The Justice Committee claim they were not told about his conflict of interest when they interviewed him in 2013. But did they ask? Much more robust scrutiny is needed of this and similar appointments in future. Paul is a former Chief Executive of NACRO. Arguably this provides an additional conflict of interest, since the charity will henceforth play a major role in the probation landscape alongside, as it happens Sodexho. While the success of the Sodexo/ NACRO partnership in winning CRC contracts could not be foreseen when Paul was appointed, their interest in bidding was well known.   

In the future, the Probation Inspector should be drawn from outside the fields they inspect. This has always been the case with the Chief Inspector of Prisons, a post for which the Ministry of Justice is currently seeking a successor to Nick Hardwick.

The advertisement for that post makes it clear that the MoJ “would particularly welcome applications from those currently working in, or with experience of, the private sector, and those who have not previously held public appointments”.   That’s fine as long as there are much more rigorous checks in place to ensure that candidates and their families  for these and similar posts are independent not only from the services they inspect but from the companies that increasingly provide them.