Taking Stock: More Local Control of Probation ?

Among its wonderful wealth of exhibits, Oxford’s Pitt-Rivers Museum includes a set of village stocks, originally placed on the footpath in College Lane Littlemore in March 1857. They were made especially for the punishment of a man sentenced by local magistrates to spend 6 hours in them.

The wooden stocks were built by one Richard Humphries, “Village Constable and Carpenter” and it was this that came to mind while reading Frances Crook’s powerful argument against Police and Crime Commissioners assuming responsibility for the probation service. Frances thinks it would be wrong “for an authority that is charged with overseeing policing with its investigative role also to oversee the infliction of a sentence. This creates an inherent conflict of interest, particularly if there is any element of private profit-making bodies involved.” Constable Humphries seems to prove the point.

Yet I can see greater merit than does Frances in more devolved organisational and financial arrangements for probation and indeed prisons. One of the key principles of a Justice Reinvestment approach is giving local people greater responsibility for preventing and dealing with crime. The hope is that if local agencies must meet the costs of locking up people in their area, they are more likely to take steps to do less of it.

The reconfiguration of probation provides an opportunity to incentivise this transfer of resources away from prison places and into community-based measures for rehabilitating offenders and preventing crime. At any one time, about 100 people in crisis ridden Birmingham jail are serving sentences of six months or less. Probation might work harder to develop credible and innovative alternatives for these petty offenders if they stood to access some of the savings that would result from lowering prison numbers. They might also provide interventions which would enable the police and prosecutors to keep more in the way of minor cases out of the courts altogether. 

Creating this dynamic would require a regional or local mechanism for allocating and shifting resources across the criminal justice piece. I’ve argued that this role could be played by PCCs working with local authorities in Justice and Safety Partnerships.  The Howard League’s 2009 Commission on English Prisons suggested that “with local authorities as lead partners,  .. local strategic partnerships should be formed that bring together representatives from the criminal justice, health and education sectors, with local prison and probation budgets fully devolved and made available for justice reinvestment initiatives.”

There are already tentative steps towards devolution in Greater Manchester and London where the PCC role is carried out by the mayor. But there is a case for going farther and faster. The Strengthening Probation consultation initiative , though purporting to want feedback on proposed changes to the structure and content of probation services is offering  roadside repairs on a vehicle that should be written off.  

In 2009, in arguing for directly elected sheriffs to run criminal justice, Douglas Carswell suggested that a putative Sheriff of Kent, “knowing that he was up for re-election, might rule, that instead of facing jail, shoplifters would be forced to stand outside Bluewater with placards around their necks reading ‘shoplifter’.”  While this is nonsense, there are risks in a localising punishment. But there are opportunities too.

Why we need a new Woolf Inquiry into Prisons

When Lord Woolf inquired into the 1990 Strangeways riot and those which followed, he concluded that prisons need to keep three dimensions in balance- security, control and fairness. The first two requirements had been prioritised at the expense of the third, fuelling the grievances which drove the protests.  The report into the 2016 Birmingham riot, finally released yesterday suggests that it was a lack of control which was key. The prison had seen a deterioration in the use of legitimate authority, chronic staff shortages and a corrupted system of violence reduction (VR) reps- prisoners with backgrounds in organised crime serving long sentences who policed disputes not always using peaceful means to keep order.

Lack of control was behind yesterdays’ decision to take HMP Birmingham back into the public realm- albeit temporarily. The ghastly consequences spelled out in graphic and distressing detail by Peter Clarke in his Urgent Notification letter mark a new low in the treatment of prisoners and have secured a day’s headlines at least. But what next?

There are two immediate questions to resolve. First, why did the Ministry of Justice not intervene earlier? Prison Minister Rory Stewart was told by the local independent monitoring board in May that “basic humanity, safety and purposeful activity were simply not being delivered”, and the prison service’s own on site  monitor  allegedly agreed that prisoners rather  than staff, appeared to be controlling many of the wings.   We deserve to know whether, as Peter Clarke says, someone was asleep at the wheel or whether as Stewart says yesterday’s forceful action follows an” intensive period of Ministry of Justice measures to compel improvements”. 

Second, how far is this debacle down to privatisation? Unions and Labour apart, the consensus is that the question may be a distraction.  I’m puzzled why G4S allowed the prison to descend into chaos and suffer the undoubted reputational damage. There's history of course, with recent scandals at Medway Secure Training Centre and Brook House Immigration Removal Centre  (where an independent inquiry is underway).

Apart from the disgusting conditions and unchecked violence at Birmingham , staff locked in their offices, unwilling to tackle drug misuse, and not knowing where their prisoners were at any given time, doesn’t look good for what is at heart a security company. The G4S CEO chairs the International Security Ligue, an association of private security organisations responsible for defining, establishing and maintaining the highest ethical and professional standards of the private security industry worldwide. If nothing else, he will not have been impressed by the arson attack during the week of the inspection that destroyed nine staff vehicles. The assertion by former Justice Minister Phillip Lee that “companies are currently ripping off taxpayers” also needs proper investigation.

Peter Clarke has argued for a thorough and independent assessment of how and why the contract between government and G4S has failed, without which he sees no hope of progress. The independent investigation should arguably cover the broader question about the role of the private sector.

But, like part Two of  Woolf’s report, the immediate disaster needs to be a springboard for a wider and searching look at the use and practice of imprisonment  in England and Wales. The practical response to the crisis at Birmingham  -to reduce prisoner numbers and increase staff – is a clue as to what needs to be done across the system.  

Headlines and Deadlines

Prisons Minister Rory Stewart is making headlines by offering to resign if his “Ten Prisons Project” doesn’t succeed in cutting levels of drugs and violence. It certainly seems refreshing to hear a minister put his career on the line in this way although I thought I’d heard him say something similar before. He did. Nearly seven months ago he told MPs on the Justice Committee:

“If I am not able in the next 12 months to achieve some improvements in making these prisons basically clean, with more fixed broken windows and fewer drugs, I am not doing my job, and I would like you to hold me to account for that in 12 months’ time”.

It might seem churlish to ask but when should Mr Stewart expect his  performance to be judged? On January 24^th, 2019 a year after his parliamentary offer. Or next August as he proposes today. Either way let’s hope  that the “new model of excellence” –will start to make a  real difference to life on the landings unlike so much of the rhetoric to come out of the Ministry of Justice in the last few years.

Today’s announcement puts more flesh on the bones of the strategy launched by Stewart’s boss last month. David Gauke’s 10 July speech was cleverly timed to overshadow the scathing annual report  of the Chief Inspector that followed the next day.  Is there something similar about the timing of today’s announcement?

Last Friday 10th August, the Inspectorate confirmed a BBC report that it had decided to issue an Urgent Notification (UN)  in relation to HMP Birmingham, following significant concerns raised by their inspection of the G4S run  prison . The Inspectorate  tweeted that they would not release any further information about the inspection until they had published the Urgent Notification letter they send to the Justice Secretary explaining their concerns. 

That  letter should be sent within seven calendar days of the end of the inspection on 10th August -so by the 17th of August. The fact that Rory Stewart visited Birmingham on Wednesday 15th as he put it “to follow up on the recent inspection”, suggests it’s been sent.  So why hasn’t it been published?

The protocol between the Inspectorate and the MoJ says the Chief Inspector “will publish an urgent notification letter to the SoS and will place this information in the public domain”. The MoJ document about the process says the letter will be published on the "Trigger Day"- the day the letter is sent.

Its the middle of August and people are away so that might explain the delay. I expect the letter will be published on Monday. If not , it will be legitimate to ask questions about whether the first private prison to be subject to the process is being treated  differently from the public ones which preceded it.

Private Communications

New liaison arrangements between courts and probation services came into force last week.  Much of Probation Instruction 5/2018- which like previous versions have been agreed with the Senior Presiding Judge- describes national and local procedures for ensuring effective communication and dialogue on issues of joint concern and escalation mechanisms when problems arise.  As long as someone knows the difference between the JBG, JDG and JOG, I’m sure it will work well.

Two matters stand out. First compared to earlier protocols it’s pretty Stalinist. The 2016 instruction “was not intended to be prescriptive in the method of exchanging information” at a local level, requiring only a process to provide assurance that the protocol is being followed. The new version even contains a standardised agenda for local liaison meetings in order to maintain consistency although the local judges, magistrates and probation staff will perhaps be relieved that “the degree of granularity or detail required is not prescribed”. My guess is that the arrangements haven’t been working sufficiently well and with ministers wanting fewer short prison sentences and CRCs wanting more community orders something more than a mild refresh was required.

The second point concerns the role of CRCs. I’m probably reading too much into it, but it seems like they now have a seat at the table with sentencers for the first time. In 2014 it was for the National Probation Service (NPS) to liaise between judges, magistrates and providers of probation services, providing  information about the services available in their local area. By 2016, NPS was to facilitate provision of information and presentations from local Community Rehabilitation Companies and Electronic Monitoring Services (EMS) about available provision. In the new arrangements, the CRC and EMS are expected to be represented  at the Crown Court meetings and must be at the Magistrates Court’s .

About time you might think. How can courts possibly have confidence in community sentences if they can’t meet the providers- or see what they do.  The new protocol says both NPS and CRCs should endeavour to meet requests from judicial officers to observe probation (and prison ) work in the local area.  I’m generally in favour of this sort of activity, helping to fund some of it when I ran the Rethinking Crime and Punishment Programme 15 years ago.

The problem is now that probation is provided for profit, CRC’s will effectively be making a sales pitch. They want – and probably need – more customers from the courts. And to the extent that they get them, so their shareholders will benefit.

Judges and magistrates on the other hand must be mindful that the principle of judicial independence extends well beyond the traditional separation of powers and requires that they are and are seen to be, in the words of the Guide to Judicial Conduct- “independent of all sources of power or influence in society, including the media and commercial interests”. The Guide is quite strict, telling judges they should take care in considering whether their name and title should be associated with a public appeal for funds, even for a charitable organisation. “Such an appeal could amount to an inappropriate use of judicial prestige in support of the organisation”. The Guide even suggests it may be inappropriate for a judicial office holder to deliver a public lecture or participate in a conference or seminar run by a commercial organisation.

Magistrates have been aware of possible conflicts of interest in this area. Former Chair of the Magistrates Association (MA) Malcolm Richardson told the Justice Committee last year that “there has been excessive concern on the part of some about building relationships with organisations that have a profit motive. I think that that is to underestimate the ability of sentencers,particularly magistrates, to manage those relationships”.  He may have been referring to those of us who were critical of an ill judged – and quietly abandoned-income generating scheme dreamt up by the MA in 2015 to involve private Community Rehabilitation Companies (CRC’s) investing in the MA Education and Research Network. Or he may have meant his own Association which raised prescient concerns in 2010 about the impact that introducing a profit motive for reducing re-offending might have on meeting the core aims of the criminal justice system. 

It may be that we all need to make adjustments to the realities of private sector involvement in criminal justice- and the obvious benefits of replacing short prison sentences with community orders outweigh footling concerns about  propriety. But maybe not.

Back to the Future? Where Next for Probation.

What to make of today’s announcement about the future shape of probation services? Is it as Russell Webster pronounced the end of Transforming Rehabilitation? Or is the foreshortening of existing private probation contracts merely a case of reculer pour mieux sauter ? All bets are off of course if Labour come to power. They have pledged a unified public-sector service with Lord Ramsbotham currently mulling the best way to organise it. But today, the Government offers the opportunity for anyone to pitch in ideas for the best way forward if they stay at the helm. Although the Consultation invites views on 17 specific questions, it will not require too much creativity for answers to propose more macro level suggestions about how to rescue probation from the mire.    

Despite many calls for the public National Probation service to be reunited with the Community Rehabilitation Companies, this seems to be happening only in Wales. In England, 10 new CRC’s will be contracted to replace the current 20. The MoJ say they’ll explore with the market how to establish a more effective commercial framework which better takes account of changes in demand for probation and ensures providers are adequately paid to deliver core services. It’s possible that such exploration will find no workable framework other than reunification. But I doubt it.

For one thing, big beasts G4S and SERCO may be allowed back on the scene. Although still under investigation by the Serious Fraud Office for overcharging on tagging contracts, both companies seem to be back in the contracting fold, relieved perhaps to have missed out on the embarrassment of TR1 and eager to show how they can learn from its mistakes.

More significantly, privatisation is now hardwired into conservative thinking. The party’s new vice chairman for policy, Chris Skidmore, was among those who has in the past argued that all prisons should be contracted out on a payment by results (PBR) basis. So too was Chief Secretary to the Treasury, Liz Truss, who’ll have to sign the new probation arrangements off. Before doing so, she will surely want to reflect not only on private sector underperformance but on how little risk the businesses have taken on.  We are told today that long-term trends in re-offending are substantially affecting providers’ payment-by results income, threatening to undermine the delivery of core services.  Setting aside the fact that declining clear up rates should make it easier to reduce recorded reoffending, the limited impact on persistent and prolific offenders is one of the many disappointments of the TR scheme. If today may not mark the end of TR, it may be the demise of PBR, in this field at least.

What comes next? The Howard League are pushing a Scottish type arrangement which has a lot going for it- although they’ll need to re think their proposed 21 service delivery areas. Maybe because I used to be on the Youth Justice Board, I’ve always favoured an Adult Offending Team model  along the lines of Youth Offending Teams (YOT’s).   These local authority based multi-agency teams, developed in Tony Blair’s first term, partly in response to a damning critique from the Audit Commission, have by and large proved an effective model for diverting young people from crime, from prosecution and from custody.

This is surely the sort of approach we now need for adults. There’s scope for discussion about the role Police and Crime Commissioners might play in any new system and whether Adult Offending Teams should form part of a broader devolution of justice responsibilities and budgets to a more local, and locally accountable, level. This is just the kind of discussion we need to have now. 

A Fresh Crackdown on Crime in Prison- if Only

Many of the great and the good of the prison reform world gathered yesterday morning at Church House to hear Justice Secretary David Gauke ’s second major speech on prison reform in six months.  His words were well enough received by an audience mostly relieved that he hadn’t been shifted to another post.  

Good that he’s found £30 million to repair prisons and equip more cells with phones. But its relatively small beer and maybe not new money. Of the array of initiatives he announced, quite what “digital categorisation” and “drug diagnostics” will deliver remains to be seen. And as for “Lifetime Offender Management”- well it doesn’t exactly sound like a ringing endorsement of the rehabilitative ideal.  Increasing release on temporary licence, improving incentives and creating more in the way of enhanced living conditions for prisoners who engage in rehabilitation sound promising if not entirely new. Forgive the scepticism, but as with Reform and Resettlement Prisons before them, there’s always the worry that these will be the stuff of speeches and press releases rather than sustainable real-world practice.

In- Cell telephones apart- the more progressive the policy ideas, the more aspirational and less concrete they become. Gauke, for example thinks too many people go to prison for prolific petty crime and short custodial sentences should only be used where absolutely appropriate. So what will he do? Introduce legislation restricting their imposition? Instruct the Sentencing Council to revise their guidelines? So far neither has been mentioned. It won’t happen of its own accord, particularly with probation in such a state.

The reason for the timing of Gauke’s speech became clear today, with the Chief Inspector’s  excoriating annual report on prisons.  Peter Clarke has seen conditions which he says have no place in an advanced nation in the 21st century. And prisons are still becoming less safe not more.  For Clarke, “improvement has yet to materialise”. Both staff and prisoners alike seem to have become inured to conditions that should not be accepted.

Cleverly getting his retaliation in first, Gauke was trying to give a rather more positive impression of the Government's management of penal affairs- as well as blunting the impact of Clarke's report .  

Just in case he looked too liberal, Gauke's  Church House policies were framed as “a fresh crackdown on crime in prison”. If only. The real crime in prison of course is that they have been allowed to deteriorate so far.  

Questions of Sentencing

An appearance this week in Parliament for the Chair of the Sentencing Council, who’s up before the Justice Committee as part of its inquiry into the prison population.  The Committee is always consulted about draft sentencing guidelines and has often been concerned about their potential to inflate the length of prison sentences. The Committee is right to be vigilant as a recent independent review of the Council’s work by Sir Anthony Bottoms found two of its major guidelines – on assaults and burglary - have led to unexpected increases in the severity of sentencing.  So what should MP’s ask Lord Justice Treacy on Wednesday? Here are four suggestions.
 

First, the Committee should ask why the Council rejected two of its proposals about the new breach guideline. The law requires courts to activate a suspended prison sentence in the event of a further conviction or failure to comply with a supervision requirement “unless it would be unjust in all the circumstances.” MP’s wanted courts, when forming a view on whether to activate, to be able to look afresh at whether the original offence had reached the custody threshold; and whether any shortfall in the quality of supervision by probation services may have contributed to the non-compliance or further offending.  The Council disagreed on both counts. Treacy should be asked to explain why “all the circumstances” excludes these two.

Second, as I did in my 2016 Transform Justice report , Tony Bottoms’ review criticised the Council for giving little emphasis to its duty, when drafting guidelines, to consider the cost and effectiveness of sentences. MP’s will want to know what steps the Council is taking to remedy this. Do they see any merit for example in explicitly permitting, or even encouraging courts to sentence below the usual range if it is in the interests of problem solving or rehabilitation in a case?  And how does the Council plan to reflect recent evidence that community-based supervision is more effective than a short spell in jail.

Third, MP’s might wonder what if any role the Council has to play in the implementation of the Female Offender Strategy published last month.  The strategy aims to “support a greater proportion of women to serve their sentence in the community successfully and reduce the numbers serving short custodial sentences”. But there is no mention of any new guideline or change in the law to make that happen. There is a case for guidelines on a distinctive approach to a variety of people with special needs.  But for women, it is surely long overdue.

Finally, the Committee should want to know if the Council has the resources to do its job properly. Treacy told the Committee in May that it couldn’t afford to research whether and how courts take the maturity of offenders in to account when sentencing- a topic of concern to the Justice Committee given their recent  inquiries into young adult offenders. Treacy's letter to them talked of an additional cut of 6% on top of 5% “which If implemented … would cut our available resources (after fixed costs and prior commitments) by 56 per cent”. Although the timescale’s not clear, it must be a false economy for the MoJ to grab a few thousand savings on research and analysis from a body whose decisions determine the spending of so many millions in prison costs.