Sentence Planning: Why David Gauke Deserves Two Cheers

No one was quite sure what to expect from David Gauke this morning. Would we get some reheated (or under cooked) announcements to distract from the latest Ministry of Justice fiasco- in this case the Working Links probation company? Or was the Justice Secretary out and about as part of a government strategy to show that away from the joy of Brexit, domestic policy making is proceeding apace across Whitehall?

As it turns out, on this occasion at least, such cynicism was ill founded. It was to my mind the best ministerial speech on sentencing since Ken Clarke spoke at King’s College just after the 2010 election. Then, Clarke expressed incredulity that the prison population had doubled in the twenty years since he had previously held responsibility for it.

There were echoes of 2010 today. Clarke thought it “too simple just to argue about tougher sentencing or softer sentencing …  but I believe in intelligent sentencing,seeking to give better value for money and the effective protection that people want”. Gauke retains the sentiment but calls it smart.

The Justice Secretary staked out a much more constructive way forward on the use of imprisonment than any of the four Justice Secretaries who’ve followed Clarke; by urging caution in continuing to increase sentence length as a response to concerns over crime; by arguing for switching resource away from ineffective prison sentences and into probation; and by starting  “a fresh conversation, a national debate about what justice, including punishment, should look like for our modern times”.

Since Clarke’s departure, policy has sought to focus much more on the practice of imprisonment than its use- with disastrous consequences. Prime Minister David Cameron didn’t want to “waste too much energy discussing big existential questions about the prison population.” As Justice Secretary, Liz Truss tried to paint England and Wales as “fairly mid table when it comes to custodial sentences” in comparison with other countries and argued that sentence inflation was limited to sexual and violent crimes.

Gauke rightly told his audience today that we are an international and historical outlier in terms of our prison population and that it’s not just about violent or sexual offences. “Prison sentences, in general, have been getting longer”.

So in terms of tone, his speech does mark an important break with recent history. Cameron described the idea that we could somehow release tens of thousands of prisoners with no adverse consequences as nonsense. Gauke sees “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”. 46,000 such sentences were imposed in the year to June 2018-more than half of all the prison terms passed.

Cameron promised you wouldn’t hear him “arguing to neuter judges’ sentencing powers or reduce their ability to use prison when it is required.” But that’s just what Gauke is planning.

Or is he? In the Q &A that followed the speech, it became clear that little has been decided in government but is rather being explored. As I have argued earlier there are difficult technical questions about achieving reductions in the use of short sentences. It’s the details that did for Ken Clarke’s efforts to reduce prison numbers – in his case the attempt to increase sentence discounts for early guilty pleas. So any penal reformers’ prosecco needs to stay corked for the moment.

The failings of the part privatised probation system will do little to assist Gauke’s ambitions, although the long-awaited arrival of GPS tracking- first announced as “prisons without bars” by David Blunkett in 2004- should increase options for monitoring community- based supervision. But it’s hard to see his promised shift in resources from prison to probation until the new services and structure come into place in 2021.

In the meantime, to build on his speech today, he should establish a review of sentencing as part of the national debate he wants about punishment in the modern age. Perhaps he could ask Justin Russell to lead it? 

He’s the senior MoJ mandarin who Gauke wants to succeed Glenys Stacey as Chief Inspector of Probation. Several people I spoke to at the speech this morning were uncomfortable with that appointment.   The independence of HMI Probation is of paramount importance and it simply doesn’t look right for an official who has been responsible for probation reform to lead the organisation. 

The Wrong Trousers: Why The Tailored Review of the Sentencing Council Doesn't Measure Up

This week the Government published reports about four important organisations sponsored by the Ministry of Justice- the Law Commission, Criminal Cases Review Commission, Independent Advisory Panel on Deaths in Custody and the Sentencing Council. The reports are the fruits of so-called “tailored reviews”, which departments must undertake on all their arms- length bodies once every parliament. The reviews look at whether the outfits are still needed and how well they are working.

Up to now, the Sentencing Council has escaped the attentions of any government scrutiny because of its “unique role in maintaining the constitutional balance between the executive, legislature, and the judiciary”.  Such a role should arguably call for more not less examination, but anyway eight years on, there’s been a review of sorts. Sadly, it falls far short of what’s needed.

The review should have started by looking at what’s happened to sentencing since the Council started work in 2010. Eight years ago, if you were convicted of an indictable or either way offence- one of the more serious crimes- you had a one in four chance of going to prison. Now it’s one in three. Average sentence lengths have gone up too from less than 16 and a half months to over 20.   Since almost all the Council’s 25 Guidelines have generally sought to retain the current levels of sentence severity, on the face of it something’s gone wrong.

It’s possible that in recent years offences have become more serious and offenders more persistent- there is some evidence for that. But that’s far from the whole story. The Council’s own assessment of its guidelines on assault and burglary have shown they have resulted in unexpected increases in sentencing. Their assessment of theft guidelines, also published this week, paints a similar, if less pronounced picture.

Of the Council’s contribution to sentence inflation, you would learn nothing by reading the tailored review.   The review makes some useful recommendations - for the Council to consult more widely with black and minority ethnic groups in the production of guidelines for example - but the first order questions about the impact the Council has had, just haven’t been asked.

That’s the case as well with the Council’s remit to increase public understanding of sentencing. Is that any better than it was eight years ago? Not an easy question to answer but the review doesn’t even try- instead making an opaque recommendation that the Council “should consider widening public awareness of its work through cost-effective engagement with other criminal justice bodies”.

Part of the problem is that the review was somehow supposed, in true Sir Humphrey vein, to provide robust challenge with a light touch- and it’s the latter approach which has prevailed.  Cabinet Office Guidance says these tailored reviews should be appropriate for the size and nature of the organisation being reviewed and the significance of the organisation to the department. 

With a budget of £1.4 million, the Council is, in Whitehall terms, small beer. But its significance for the MoJ and its provision of prison places is much bigger. As an example, the introduction of the guideline on bladed articles and offensive weapons offences, which came into effect on 1 June 2018, is estimated to result in a need for around 80 additional prison places per year at a net cost of around £2.5 million. As a key driver of the MoJ budget, the Council deserves much greater attention than it's had.   

To be fair, back in 2017 the Council itself invited top Cambridge criminologist Tony Bottoms to review its work and it is making some changes as a result. But the Bottoms recommendations were limited to how the Council can best exercise its current statutory functions. My 2016 report for Transform Justice looked more broadly at what the Council should and could be doing if those functions were altered. I thought the House of Commons Justice Committee should conduct an inquiry into its role. But this tailored review might have done so too.

On Monday, alongside his announcements about  reconsideration of parole decisions, the Justice Secretary launched a tailored review of the Parole Board to examine further options for longer-term reform. He wants “to examine what further, more fundamental measures might be possible over the longer term, including the possibility of primary legislation. A tailored review of the Parole Board provides the opportunity to do that”.  

Much the same exercise is needed for the Sentencing Council.  Whoever did the tailoring of its review got their measurements wrong.

Challenging Times

Justice Secretary David Gauke has announced his plans for decisions made by the Parole Board to be challenged and looked at again. He should really have made a statement to Parliament about it - the Ministerial Code says that the most important announcements of Government policy should be made there in the first instance. But Gauke preferred the Sunday papers and Today programme for the latest episode in a saga stretching back to his first few days in office just over a year ago.  

In the media, Gauke was able to spin the plan as solely about giving victims the right to challenge release decisions and to gloss over the chance prisoners will have to ask for parole refusals to be reviewed too. In the new scheme, applications for a decision to be reconsidered will be open to the prisoner and the Secretary of State – the two parties to the Parole hearing- with victims able to make their representations for reconsideration via the Secretary of State. The Ministry of Justice estimates between 1% and 5% of release decisions will be challenged compared to between 13% and 16% of decisions to remain in custody which prisoners will ask to be reconsidered.

It’s anybody’s guess how many challenges will prevail on either side; and whether the possibility of review will make initial Parole Board decisions more conservative. Rightly, there’s no change planned to the grounds for the Board’s decision-making.  As the MoJ put it “Any detention beyond the minimum term imposed by the {sentencing} judge is not about ongoing punishment for the offences committed but about the offender’s current risk to the public by the time that stage of the sentence is reached – often many years after sentencing”.  

In the great majority of  cases, however strongly they may understandably feel about an offender’s release, victims have to accept that their views will have limited weight in assessing that risk. Welcome improvements to the arrangements for keeping victims informed and supported and the (limited) increases in transparency Gauke has introduced, cannot and should not, alter that central fact.    

Gauke has wisely resisted the temptation to allow members of the public or the media to apply for parole decisions to be reconsidered. The Government say they looked at the proposal to do so carefully, rejecting it as impractical, unworkable and unachievable without primary legislation.  Almost as an afterthought they make the principled point that “challenges should come from those with a standing and involvement in the case rather than from the public at large”.

This is a principle that arguably should be applied to the Unduly Lenient Sentencing Scheme which  was introduced 30 years ago last week.  It seems odd that in any case of an eligible offence, at the request of a single person, the Attorney General must decide whether the Court of Appeal should reconsider it. In 2017, 943 requests were received, of which 137 eventually had their sentences increased. 

When the ULS scheme started, a handful of cases a year were anticipated but its scope has gradually been extended down the years. It may be preferable to a generalised Prosecution right to appeal. But if  sentences for a yet wider range of offences are brought within the remit of the ULS,- as the current Attorney General seems to think desirable- there's an argument that only those who can demonstrate a sufficient connection to a particular sentence should be able to challenge it.   

As for Parole, after two MoJ reviews, a third is on its way, looking at the case for more fundamental reforms to the powers and responsibilities of the Board. If that case is made and accepted, and the Parole Board becomes more like a fully fledged court, the reconsideration mechanism announced today could turn out to be something of a short term expedient.    

Six Months to Go

Last January, confronted with the disgusting conditions at HMP Liverpool, Prisons Minister Rory Stewart told MPs that the neglect of basics in prisons had resulted from too much talk “about grand issues of sentencing policy, reoffending and the policy context”.  A year on, Stewart feels compelled to indulge in just that talk himself, telling the Telegraph he is “looking very carefully” at  imposing a new legal presumption on English and Welsh courts against sentences under six months - and potentially longer. 

Stewart has come round to the view expressed by the Council of Europe after their 2016 visit to the UK that prison reform will be unattainable without concrete steps to significantly reduce the current prison population.  Also of course, many of the ten prisons on which his own ministerial performance will be judged in the summer have large numbers of short term prisoners. The case for dealing with most of them in the community has been very well made by the Revolving Doors Short Sighted campaign.  

So what happens now?   First, Stewart and boss David Gauke will have to persuade government colleagues to legislate for the necessary changes, and MPs to back them. In 2011, five newly elected Tory MPs wrote “It has been argued in the past that instead of short prison sentences, there should be a presumption against sending criminals to prison. We should take exactly the opposite approach and ensure that persistent offenders are imprisoned for prolonged periods of time”. All those expressing that view are current or former ministers. Stewart will have to win them over and hope for a following wind from Labour. It was Ed Miliband’s opportunistic attack on Ken Clarke’s progressive penal policy that killed of the last serious effort to reduce prison numbers eight years ago.

Second the Ministry of Justice will need to find the technical mechanisms to bring about the reduction of short sentences in practice. In Scotland, since February 2011 a court must not pass a sentence of imprisonment for a term of 3 months or less unless it considers that no other method of dealing with the person is appropriate. But five years on, in 2016/17, almost three and a half thousand people received such sentences including 750 for shoplifting and 689 for breach of the peace.   That year, these very short sentences still accounted for 28% of prison sentences compared to 34% before the presumption against their use. The overall number of custodial sentences has fallen from about 15000 to 12000 but this reflects a fall in court cases.  Yes, community sentences have risen, but many have probably replaced fines rather than custody. 

So Scotland may not provide the best model. The MoJ should look at other approaches too. One is to be more explicit about how serious an offence must be before courts can impose a prison term. There is no general definition of where the so-called custody threshold lies. While Sentencing Guidelines say that  “the clear intention … is to reserve prison as a punishment for the most serious offences”, almost a thousand people were in prison at the end of March last year for shoplifting, 25 for theft of a bicycle and 11 for possession of cannabis. A higher hurdle is surely needed.  

Another problem is that courts must regard an offence as more serious if committed by someone with relevant previous convictions. Modifying this requirement so that courts may – but do not have to – punish repeat offenders more harshly is another route to consider.

A further option would be to encourage more suspended sentences. Currently, if the court imposes a term of imprisonment of between 14 days and 2 years, it may suspend the sentence for between 6 months and 2 years. Perhaps replace “may” with “must” other than where the interests of justice require immediate custody?  

I’d also like to see reinstated the principle that courts should take overcrowding and other painful realities of prison life into account when determining the punitive weight of a sentence.

A third task for the MoJ is to ensure that a wide range of properly resourced community-based measures are available and their availability communicated to courts. Problem- solving courts seem to have faded as a policy idea but if short sentences are to go, more, and more thorough, pre- sentence reports will be needed. So too perhaps a more systematic role for courts in reviewing the progress of sentences. The new probation contracts shortly to be let must take account of the MoJ' s new sentencing policy and provide resources to match it.

Earlier this week, the Chief Inspector of Probation wrote to the Justice Committee that  “with Brexit and other uncertainties, the proposed transition to new probation arrangements is not necessarily certain”.   Still less certain to be taken forward  perhaps are Mr Stewart’s grand issues of sentencing. They deserve to be. As was pointed out last year “Prison can become a ripe place for criminal education, serious and organised crime, and radicalisation, rather than rehabilitation”. By whom? No less than the National Police Chiefs Council.

Review of the Year (2) Prisons

Prisons minister Rory Stewart said today he wished he could lock MPs in the Commons chamber until they produced a positive consensus on Brexit. On reflection, yet another 650-place inner city Victorian jail is probably the last thing he needs in his day job- much as the public might at present support his sentiment. 

From the start of his tenure in January, when faced with explaining piles of rubbish, vermin infestations and degrading cell conditions at HMP Liverpool, Stewart and his boss David Gauke have certainly not ducked the challenge of trying to repair a ravaged prison estate, sensibly eschewing the high-flown rhetoric of their predecessors in favour of a back-to-basics campaign.  

At year end, Stewart told the Justice Committee he believed there are green shoots. Sadly, three weeks earlier, the Chief Inspector of Prisons told  a different tale. In July, Peter Clarke’s Annual Report had documented conditions which “have no place in an advanced nation in the 21st century.” By November, Clarke had seen nothing to give him optimism that any significant corner has been turned. “The violence figures are going in the wrong direction. We still see far too many drugs destabilising prisons. As to living conditions, I have not seen significant improvement in the prisons we inspect”.  

Of course, there should be improvements over time as staff numbers, so recklessly reduced earlier in the decade, increase and the new recruits that stick with it gain experience and confidence. The Inspectorate’s new Independent Reviews of Progress will hopefully document a more positive picture than we’ve seen in 2018- what Her Majesty might call an annus horribilis for her Prison and Probation Service.

Not surprisingly a whirlwind of initiatives has been announced during the year- and some are on the way to implementation. The revamped personal officer scheme (OMIC) has promise and the extension of in cell telephones could improve family contact and cut demand for illicit mobiles. More opportunities for release on temporary licence and enhanced living conditions for prisoners who engage with the regime could encourage positive behaviour as part of incentive schemes to be developed by governors rather than hq . Whether this can add up to a promised "rehabilitative culture" within establishments remains to be seen.

Already underway is the installation of new technology security solutions- airport-style scanners, body worn cameras, and phone-blocking. Dogs are used to patrol landings even in Category B prisons. There is a crackdown on crime in prison, with more prosecutions and tougher penalties for assaults on prison staff. 

In a recent case a prisoner in a Segregation unit pleaded guilty to three counts of administering a noxious substance for three separate potting incidents. Horrible of course, and I don’t know the details - but are three 10-month sentences served consecutively the only way of holding prisoners to account for this kind of behaviour?  More needs to be done to identify what lies behind it. In an investigation I did (published this year), I found debt in prison can be seen as a stone best left unturned by staff .

It’s not clear what’s become of promised changes to security categorisation aimed at isolating gang leaders from their followers. The rollout of PAVA spray looks to be on its way despite the Prison Reform Trust’s well-argued call for a rethink. It's a measure which owes as much to placating the demands of an increasingly frustrated POA as it does to  the success of the pilot scheme. 

In terms of resettlement, the challenges remain enormous. The Employment Strategy reports success in attracting business interest in taking on ex offenders and post Brexit gaps in the labour market could offer opportunities to people coming out of prison. Measures have also been announced to reduce shocking levels of homelessness and rough sleeping though currently limited to pilot sites.  At HMP Leeds, half of prisoners said in the Inspectorate’s survey this year they weren’t getting the help they needed to sort out accommodation, employment and finance on release.  Somehow, the inspectors rated outcomes on rehabilitation and release planning as reasonably good. 

To help fix this, a relaunched Through The Gate service should see 500 extra resettlement staff across all resettlement prisons in England and Wales. Yet the Prison Service cant seem to find a way to avoid the basic difficulties, highlighted by NACRO , created by  releasing prisoners on a Friday. 

2018 saw confirmation that two new men’s prisons will be built at Wellingborough and Glen Parva, both to be run by the private sector. These will provide more than 3,000 places out of a promised total of 10,000 in the new for old estate modernisation programme  Despite the debacle at HMP Birmingham which saw the prison service step in to run it in August, the Government has announced a Prison Operator Services Framework competition suggesting that the private sector will continue to play an important role -under a Conservative government at any rate. The Justice Committee’s hearing into what went wrong at Birmingham is a poor substitute for the full independent assessment  recommended by Peter Clarke. The assertion by former Justice Minister Phillip Lee that “companies are currently ripping off taxpayers” also needs proper investigation.

June’s long awaited Female Offender Strategy thankfully scrapped plans for small women’s prisons but pledged only a small proportion of what they would have cost to fund alternative residential centres. 

Should we expect something similar in respect of plans for new men’s prisons in the light of lower than expected prison population projections and higher pressures on the MOJ budget? There is certainly  case for a much wider range of custodial, residential and community-based options than currently exist for those remanded for or convicted of offences.

Back in January, two weeks into the job, Rory Stewart told the Justice Committee that

“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”.

Sensibly he subsequently bought himself more time (until August 2019) and specified ten prisons on which to be judged. Its HMPPS Chief Michael Spurr who’ll be leaving in the New Year.  Will Stewart be following him out of the gate?

Review of the Year (1) : Sentencing and the Prison Population

The prison population ends the year more than two and a half thousand- one Titan prison worth -lower than it started. That’s partly down to January's revised procedure for Home Detention Curfew. More than 3,000 prisoners were at home on electronic tags last week, 40% more than 12 months ago.  The 3% fall in prison numbers (its almost 6% for women) also reflects a decline in those formally dealt with by the criminal justice system. These have fallen to a record low, with 1.61 million individuals prosecuted or given an out of court disposal in the year ending June 2018.

Falling prison rolls don’t mean courts have become more lenient. The custody rate for indictable offences increased by one percentage point, over the year to June, to 32%- it was 24% in 2010. Average sentence lengths have continued to rise, reaching more than 17 months. The average was 12.6 months a ten years ago. Offenders are more likely to receive an immediate custodial sentence for a knife and offensive weapon offence.

Tougher sentences may mean courts have been dealing with more serious or prolific offenders than previously, but they may also reflect the impact of sentencing guidelines. An independent review of the Sentencing Council published in April confirmed that two major guidelines -on burglary and assault- “have now been shown to have resulted in some unexpected increases in sentencing” which “is bound to create anxiety among civil liberties groups and some criminal justice organisations”. Since then the Council has found unanticipated increases for sexual assault and supplying class A drugs following the introduction of its guidelines -but some decreases or no impact on other offences. It's too early to know about the impact of its more recent guidelines, including the one on breach offences which risks a greater use of prison for offenders who fail to comply with alternatives.  

For offences which can only be dealt with by Magistrates- the least serious to come before the courts- the custody rate fell in the year to June 2018 (from 1.6% to 1.5%). Sentences of six months or less also fell very slightly as a proportion of all custodial sentences but still represent more than half of those imposed over the year. 2018 has seen a growing acceptance of the case for more radical steps to reduce short sentences thanks to the Revolving Doors shortsighted campaign whose main messages seem to have been accepted by ministers. Action has so far  been limited but there is surely scope for it. Of the 5,342 prisoners serving jail terms of less than 12 months at the end of March this year, 30% were for theft -including 985 cases of shoplifting (and 25 of theft or unauthorised taking of a pedal cycle). 50 people each day are sent to prison for a period of a month or less. 

Replacing all short sentences would have a welcome but limited impact on the overall size of the prison population which is largely driven by sentence lengths and release decisions. There is a risk that  changes to the Parole system introduced in the wake of the Worboys case could see serious offenders spending longer inside whether they need to or not. 

In the longer term, the technical job of sentencing should get easier if the Law Commission's consolidated Code is put into law.  Its very troubling that the Lord Chief Justice should report that "on too many occasions, an unlawful sentence is imposed in the Crown Court & the mistake only noticed by a lawyer in the Court of Appeal Office when an appeal (on other grounds) is lodged."

Politically, prisons Minister Rory Stewart warned in June that “as we give more voice to citizens and to victims, almost inevitably we are going to face pressure…for longer and more brutal sentences”.  The Sentencing Council has appointed an external agency to examine issues of public confidence in sentencing, which will hopefully help find ways of avoiding Mr Stewart’s dystopian future.  

Overdoing it with the Pepper

Last month , Prisons Minister Rory Stewart announced that every officer in an adult male prison will be equipped with PAVA – a synthetic pepper spray which can be used to incapacitate violent prisoners. The £2 million investment followed what was described as “a successful pilot”.

The government made no secret of the trial which took place in four prisons, but did not publish the evaluation. Having received it via a Freedom of Information request – well done to HMPPS for responding positively- I can see why.   

For one thing the pilot “was unable to conclusively demonstrate that PAVA had any direct impact on levels of prison violence. Overall violence levels continued to rise across all of the pilot (and comparator) sites during the period, continuing previous trends. When violence did occur, “staff felt better able to deal with it and better equipped to arrest escalation and prevent harm with PAVA”. This seems the main criterion for success.

What’s worrying though is that “some staff were developing an over-reliance on PAVA as a way of resolving conflict.’' PAVA was drawn (taken out of the holster) or sprayed in 50 incidents in the pilot prisons. 18 of these were prisoner on staff assaults and 14 prisoner on prisoner assaults- the kinds of cases the spray is designed to stop. The other incidents comprised eight cases of passive non- compliance, seven of aggressive non-compliance, two of active self- harm and one other (an unspecified “incident at height”).  

The example of passive non- compliance given in the study is: “Prisoner refuses to return to his cell, gripping the landing railings and refuses to move. Officer fears it will escalate to fight with other prisoners.” This is presumably one of the incidents the evaluators mean when they say "staff used PAVA to enforce rules and gain compliance when it was not clearly the last resort or when more time could have been spent talking". 

This is some way from the use of the spray as a “personal protection aid, for staff to use reactively to defend themselves or others against serious attack”- which is what ministers were told it was for. Indeed  a panel who reviewed each of the incidents thought between 2 and 11 (between 4 and to 22%) of the 50 incidents were thought to have fallen outside of operational policy and expectations of professional conduct, and would therefore warrant further investigation. 

While no uses of PAVA were thought to have breached the law, puzzlingly the report claims there is a grey area between use of force that is legally justified and that which is professional and legitimate. Whatever that means, the evaluators estimate there will be a significant number of investigations into inappropriate or excessive use of what some staff refer to as "C&R in a can".

Prisoners and staff expressed mixed views on PAVA’s effect on relationships. Some prisoners had considerable concerns about overuse and procedural injustice, focusing on increasingly controlling and coercive behaviour of staff. Other prisoners saw the introduction of PAVA as necessary.

Staff were positive despite some being affected in 13 of the 33 cases where the spray was actually discharged. One of those described the experience as  "nasty, unbearable, like your skin peeling off, as if you have been acid attacked" Troublingly, in the light of this, "staff played down their descriptions of the impact of PAVA on prisoners, describing it as a minor use of force”.

The evaluation concludes that what is very clear is the need for high quality governance and scrutiny of use of force and the need for clear leadership messages from governors to set expectations of a professional standard of use. Amen to that.