A Year in Prisons

A year that opened with David Cameron championing prison reform as a great progressive cause in British politics ended with a record number of deaths, a high profile escape, staff walking out and Tornado teams quelling a series of major disturbances. The first six months saw Michael Gove promising the earth but delivering almost nothing; the second Liz Truss scrambling for funds and ideas to repair the damage inflicted on the prison service by her predecessors.

Her White Paper may not have lived up to its hype, but she quickly recognised that getting more staff onto the landings is a prerequisite for anything more ambitious. Having previously argued that prisons should be tough unpleasant and uncomfortable places, she makes an unlikely reformer but deserves the chance to fix the mess she inherited.

Truss baulked at Charlie Taylor’s extravagant plans to reconfigure youth justice and has so far resisted proposals to reduce the numbers of adults in prison- not surprisingly for a proponent of longer and tougher sentences. Ken Clarke, Nick Clegg and Jacqui Smith joined the list of politicians prescribing radical policies once they cease to have the power to implement them. Their call to halve the prison population received some support from Labour but they have form in calling for - and reneging on - a halt to the arms race on punishment. Michael Howard thinks it gravely irresponsible to slash prison numbers.  But even he says there might be room for modest reform.

Measures beneath the radar are probably the best we can hope for in 2017.The Sentencing Council could play a greater role in stabilising sentence lengths but problem solving courts seem to be on hold. It’s not clear how far the devolution agenda has to run in justice.

Probation could normally be expected to play a greater role in replacing prison but its reckless privatisation has left it struggling to cope with existing work let alone take on more. We will find out early next year if a review leads to contracts being torn up – or more likely tinkered with.

We are due a progress report too, on the 10,000 new prison places due to be built in  9 new prisons by 2020.  Don’t be surprised if these have been delayed. NOMS Chief Michael Spurr told the Justice Committee last month that it will be 2025 at least before prison cells hold only the number of prisoners for which  they were designed.   Prison reform may just about still be a great progressive cause -but it's a long term one. 

The Youth Justice Review : A Plumber responds to an Architect

There’s a lot to be said for the report of Charlie Taylor’s youth justice review, which has finally been published along with the government’s response; and one question. What will actually be done with it?

We learned yesterday that two secure schools will be created but when, where and in place of what remain to be seen. Ironically they are probably the least promising of the review’s recommendations. Despite mountains of evidence about the ineffectiveness of custodial institutions, Taylor has felt obliged to invent yet another species.  Approved schools, Detention Centres, Borstals, Youth Treatment Centres, Young Offender Institutions, and Secure Training Centres have all proved more or less expensive failures. The Coalition’s plan for a Secure College was quickly killed off by Michael Gove before he announced the review.  Do we need another variant?

From what little detail is available, Taylor’s schools seem most likely to resemble what are now known as Secure Children’s Homes (SCH’s) –small therapeutic  establishments , mostly local government run,  necessarily expensive and whose numbers have declined substantially in recent years. The secure schools will be bigger than SCH’s with 60-70 places – probably a mistake- but more promisingly Taylor wants to see more temporary release and lower security levels.  Reversing the decline in the number of SCH’s combined with serious reforms to reduce further the need for under 18’s to be locked up at all looks a better strategy than devising yet another generation of closed institutions . 

To his credit, Taylor does go some way down the demand reduction road, recommending an end to short custodial sentences, fewer remands in custody and young people- children first, offenders second for him– as far as possible kept away from the “tainting” effects of the formal justice system.  The review proposes that children under 16 should only have their liberty restricted exceptionally if they pose a serious risk to the public. On these recommendations the Government response is distinctly cool.

It’s lukewarm on Taylor’s proposed devolution of the costs of custody to local authorities, together with the power to commission the kind of services that children in trouble require. While recognising the need for greater input from health and education, Taylor thinks the mandatory model of Youth Offending Teams (YOTs) may be past its sell by date, inhibiting potentially more effective partnership arrangements. A logical consequence of devolution, that’s still a risky call in a climate of cost cutting. The government seem to recognise that an absence of a statutory duty to run a YOT, and the removal of ring fenced funding may produce not local innovation but the kind of neglect that required the dirigiste reforms of the 1990’s.   The result of this part of the review is…another review. 

The driver of those 1990's reforms, the Youth Justice Board, looks to have survived.  Taylor thought it could be replaced by a Youth Justice Commissioner in the heart of rather at arms- length from the MoJ, with a potential move to the education department. Instead, when it plays a part of the new review of governance, the YJB is unlikely to cast itself as a Christmas voting turkey.  

Taylor’s most radical idea is to have decisions about dealing with children in trouble made not by magistrates in a youth court –though they would continue to decide on matters of guilt and innocence- but by new panels akin to those operating in the Scottish Children’s Hearings system. These would not be mini courts- though some current JP’s could become members alongside others with experience of young people, in particular their education. Panels would draw up, publish and review plans for each child setting out not only their obligations not also those of the agencies responsible for their care and supervision.   The most serious cases would continue to go to the Crown court but with plans drawn up by the panels. 

It’s a bold proposal but moving from a “justice system with some welfare to a welfare system with justice” has proved many steps too far for the MoJ. What would be the biggest change to youth justice since 1969 is going nowhere. There are plenty of worthwhile recommendations which the Government can take forward  - better training for appropriate adults, improved legal advice,  less criminalisation of children in care , streamlined assessment and a limit on criminal records. More staff in YOI’s will be useful too, confirming Liz Truss as less of an architect and more of a plumber.  

Council of Despair?

How can we reduce the number of prisoners in England and Wales?    The government’s view seems to be that the 86,000 men women and children behind bars “is the result of the sentencing approach taken by successive Governments of different colours and there is no way to arbitrarily reduce the prison population”. Behind the scenes, Ministers who are not only responsible for sentencing policy but for the creaking prison and probation services which give effect to it , may be less sanguine. Privately they may well share the view of former Lord Chief Justice Woolf that “with the situation in our prisons today, we cannot afford to have further sentencing inflation.”

If ministers do want to at least limit the growth of prison, they could well ask about the role of the Sentencing Council- the body which for the last six years has been issuing guidelines to courts about the appropriate levels of penalty for particular offences. In a new report for Transform Justice – The Sentencing Council for England and Wales: brake or accelerator on the use of prison? - I look at the impact the Council has had on prison numbers and what more it could do to make sentencing more effective.

It’s true that the prison population has been fairly stable since 2010, but with a 25% fall in the numbers sentenced for serious crimes,  we should really have seen prison numbers go down . The reason they haven’t is that average sentence lengths have gone up for almost all types of crime. While there may be several culprits in all this, the Council has a case to answer. The Council’s own evaluations of the effect of its guidelines on assault and on burglary found that sentencing became more severe than it had expected. Guidelines may have stifled creativity by focussing courts’ attention more on aggravating factors than on aspects of a person’s circumstances which may reduce their culpability and make their sentence capable of being suspended.

The report makes a series of recommendations designed to encourage the Council to take a less conservative approach to its work. It could pay much more attention to the costs and effectiveness of sentences when producing guidelines, for example encouraging courts to go below the usual range if it is in the interests of problem solving or rehabilitation. Guidelines on the distinctive approach to be used when sentencing women, young adults, older offenders and offenders with mental health problems are sorely needed.

The Council – like all arm’s length bodies – should really have been subject to a review by the Government. But it has been exempt because of “its unique role in maintaining the constitutional balance between the executive, legislature, and the judiciary”. The nature of that balance was deeply contested when Lord Carter first proposed a Sentencing Commission back in 2007. MP’s and particularly judges were alarmed that over prescriptive guidelines produced with more than half an eye on the size of the prison population could unreasonably limit judicial discretion. 

Given the current prison crisis, the Transform Justice report argues that it’s time to open up this question again.  The Justice Committee which has previously argued for a much reduced prison population and reinvestment of resources into prevention and rehabilitation, should establish an inquiry into the role of the Council and revisit the desirability of linking guidelines to resources.  

Alternatives to Prison - a Shot in the Arm or Shot in the Foot ?

The movement to cut the prison population picked up steam this morning when the Lord Chief Justice told the Justice Select Committee that “fewer criminals should be jailed and tougher community punishments developed as an alternative to imprisonment”. In contrast to Michael Gove, who last week called for a reduction in prison numbers having steadfastly refused to countenance it when in office, Lord Thomas is in a position to do more than talk.

As head of the judiciary he can exercise a strong influence on the 20,000 judges and magistrates who send people to jail. Unfortunately, he seems to have passed up the opportunity to persuade the Sentencing Council (of which he is President) to take a more ambitious line on alternatives to prison in its recent guideline on the imposition of community and custodial orders.  He might, however, look for an opportunity to issue a guideline judgment encouraging the greater use of community sentences.

The Chief Justice might say that his support for such sentences is contingent on their being tougher.  If he means that they should impose more and more onerous requirements on offenders, his positive intentions could easily lead to unintended consequences. The numbers spared custody at the front door of sentencing could be exceeded by those experiencing it via the back door of breach- a risk Lord Thomas seemed to recognise in respect of the post release supervision of short term prisoners introduced last year. If the Chief means the sentences should be , to coin a phrase , tougher on the causes of crime, he might be on to something.

Gove last week called for community sentences to be far better policed, with swift and certain sanctions for those who don’t comply. “Swift and Certain” is shorthand for an American approach to probation originating in Hawaii. It appeared in the 2015 Conservative manifesto but has yet to find its way into legislation. I’ve long had doubts about its applicability here, though these would be alleviated if the response to missing appointments or drug tests were not swift and certain periods of detention- as they are in the US HOPE Probation system- but more intensive rehabilitation efforts or lesser sanctions such as community work or curfews reinforced, if necessary, by tagging.

There’s a bigger problem of course which is whether the reformed probation service is able to step up to the plate.  It may be that the Ministry of Justice review of the new arrangements finds the new model fatally flawed, but its hard to see it being abandoned. The MoJ  may look to reinvigorate it by encouraging more diversion from prison.

We are told that the Community Rehabilitation Companies are struggling because the numbers of cases they supervise - and the fees that go with them- are lower than they’d expected. On business grounds if no other, they’d presumably be keen to get onto their books some of the 90,000 people sentenced to custody each year, as an alternative to custody and not just after release from it.

If that’s something the Lord Chancellor and Lord Chief Justice want too, it shouldn’t be beyond their wit to arrange it.  

From Prison Reform to Sentencing Reform ?

Will last week’s events prove a defining moment in the history of prisons in England and Wales? The Sun thinks so, yesterday proclaiming that jails have become little more than a war-zone as the level of rioting, violence and drug-abuse reaches a tipping point.  Tuesday’s action by prison staff certainly represented a very a serious breakdown in industrial relations and whether these have been repaired remains to be seen. With the ink barely dry on a Prison White Paper  claiming to be the biggest overhaul of our prisons in a generation, it looks as if those who work in prisons are unconvinced that the measures it contains will secure their safety and that of the people in their custody.

Unsurprisingly, more radical measures are now being suggested. Former Governor Ian Acheson who reported on radicalisation in prisons earlier this year called in the Telegraph, for the National Offender Management Service (NOMS) to be scrapped. NOMS -  Nightmare on Marsham Street, as it was known when under the  Home Office-  was intended to break down the silos of prison and probation and ensure a better focus on managing offenders. Acheson argued that it has become “an unloved, unlovely bureaucratic monster, dangerously out of touch with its operational heartland”.

NOMS first Chief Executive, Sir Martin Narey widened the focus still further in the Times by arguing for sentence lengths to be reduced, giving support to Michael Gove‘s argument in his  Longford Lecture that “we need to work, over time and pragmatically, to reduce our prison population”. This is something Gove resisted when as Justice Secretary he could have done something about it. Narey is still  a non-executive board member at the Ministry of Justice so perhaps could persuade Gove’s successor to do something on prison numbers. But what?

I was out of the country last week speaking for Penal Reform International at two events in Central Asia.   Kazakhstan has halved its prison population over the last fifteen years through a comprehensive package of reforms- decriminalising and reclassifying offences, diversion of minor cases, reducing remand time, shortening sentence lengths, earlier release, a new probation system and community sentences. The country developed and implemented a plan - “Ten steps to reduce the number of inmates”.  True the prison population is still pro rata higher than the UK’s – 250 per 100,000 population compared to 150 – but the direction of travel adopted in Astana is now sorely needed in Westminster.

Of course, the technical elements of any Ten Steps in England and Wales will be somewhat different to Kazakhstan’s.  Next month, Transform Justice will be publishing a report I’ve drafted which will argue that the Sentencing Council which produces guidelines for courts should play a much stronger role in reversing sentence inflation.  Earlier Transform Justice reports have argued for a justice reinvestment approach which devolves custodial budgets to regions to incentivise local bodies to prevent crime, rehabilitate offenders and reduce the use of prison.  With radical changes like these, prison numbers could start to come down to a more manageable level. Without them, the Government might be tempted to emulate one of Kazakhstan’s less progressive policies; back in 2011 it moved the prison system back from the Ministry of Justice to the Ministry of Interior.

Conventional wisdom is that politicians who adopt a soft approach will be slaughtered in the media and the polls.  But the Sun on Sunday said today  “Our jails are stuffed with too many non-dangerous criminals…” That's as much of an  invitation to sentencing reform you are likely to get.        

Forget about the price tag? What to look for in the Prisons White Paper

Today’s meeting between Liz Truss and the POA will have come too late to influence the contents of tomorrow’s White Paper, but prison staff and those of us who care about prisons will be looking at two key elements if we are to have confidence in the government’s plans for the beleaguered service

First will it include a costed plan for properly staffing jails? It’s quite clear that in the Coalition years, faced with wholesale privatisation, public prisons accepted staffing levels in many cases too low to be safe, let alone achieve the lofty objectives subsequently promised by Messrs Gove and Cameron. While Mr Grayling is the main villain of the piece as the author of the Faustian pact forced on the service, Ken Clarke bears some blame for reaching too stringent a financial settlement with the Treasury back in 2010.  When his plans for reducing prison numbers crashed and burned, the funds were not adjusted upwards to cope with new projections.

Six years on, the bottom line is that the benchmarking exercise which helped take a billion pounds out of the NOMS budget needs redoing and the resources found to fund what results from it. Just as  the National Institute for Health and Care Excellence (NICE) were asked after the Mid Staffs Hospital disaster to look at safe staffing for nursing in adult inpatient wards in acute hospitals, an independent body should do so in respect of prisons. With an advisory board comprising personnel at all levels and ex prisoners, it should look seriously at how many staff are required to meet the expectations set by Prison Inspectors and the various recommendations made by them and the Ombudsman. Benchmarking Mark Two should be completed by Easter. 

An alternative would be to return to 2010 frontline staffing levels- something recommended by last week's admirable RSA report. But whether Ms Truss has persuaded the Treasury to provide much in the way of additional cash must be doubtful. Her Permanent Secretary told the Justice Committee a fortnight ago that “the subject we talk about most in my executive committee is improving our finances and bearing down on the gap between our allocation and our projected spend.”

This means the White Paper must propose ways of reducing the prison population, the second and more controversial matter.  I have argued that replacing short sentences with community supervision may be desirable but will not provide enough relief. In addition the Ministry will need to look to halt the upward drift in sentence lengths. A report I’ve written for Transform Justice, to be published next month, will argue that the time is right to revisit the aims and purposes of the Sentencing Council in order to reduce the extent to which courts impose imprisonment and the lengths of its terms.   Ms Truss previously argued for longer sentences and tougher prisons but wherever she once wanted the ship of penal policy to go, she surely knows now her job is to keep it afloat.

Without manageable prisoner numbers and enough staff, the governor autonomy agenda – now known as empowerment – will not get prison reform very far.  Nor will the £1.3 billion capital programme for 9 new prisons which are supposed to be completed by 2020. Expect some re-profiling of this. If Treasury rules allow, some of the funds could be used to boost the budgets for running existing prisons (and the new prison at Wrexham) more safely and  for pump priming measures to divert low risk offenders from prison. This must be the priority for Ms Truss over the lifetime of the parliament rather than the grandiose schemes of her predecessor.     

Why we need more short prison sentences not fewer

Yesterday’s Observer rightly called for sentencing reform in order to solve the deepening crisis in the prisons in England and Wales. But as so often their proposals do not go nearly far enough. Their solution is to reduce the number of people serving short sentences for minor crimes. Of course that’s a good idea but at the end of last month fewer than 7,000 out of the 85,000 people in prison were serving sentences of less than a year.  Take the lot out tomorrow and we’d still be left with a prison population well in excess of the system’s 75,000 capacity.

It’s true that over half of those admitted to prison are serving short sentences so cutting numbers would take the strain off  local prisons as well as sparing some of the 50,000 petty offenders a year the indignities of doing time in them. Whether the controversial probation reforms have made it more likely that such offenders can be effectively supervised in the community instead seems increasingly open to doubt.

But the real requirement for a manageable prison population are reductions in the lengths of sentences being imposed. Since 2010, the average length of prison sentences went up from 16.2 months to 19 months.  Jail terms  have got longer not only for violent and sexual crimes but for theft and drug offences too. It is prisoners facing longer terms- particularly but not exclusively those with indeterminate sentences-  who are bearing the adverse consequences of the reckless staff reductions in prisons.

So yes to sentencing reform but it needs to focus not simply on bringing about  fewer short sentences but, in a sense on producing more of them - but at the expense of the longer terms that are  increasingly being imposed by courts.