Straw in the Wind?

 

 Probably 25 years ago, I was part of a delegation from NACRO that trooped along to see New Labour’s Shadow Home Secretary Jack Straw to discuss his plans for youth justice reform. On his desk, lay a copy of Edwin Schur’s “Radical Non-intervention: Rethinking the Delinquency Problem”. The 1973 text from a doyen of labelling theory wasn’t on the face of it the likeliest inspiration for Straw’s emerging plans to end the excuse culture that he thought dominated responses to children in trouble. So it proved, as at one point he brandished the book as an illustration of everything that was wrong with prevailing orthodoxies in work with  young offenders, where , as he would put it once in government,  “there is no punishment, no chance for them to make amends for their crimes and no action to tackle the cause of their offending”.

I was reminded of the incident when reading the introduction to the latest annual report on youth offending services written by the Chief Inspector of Probation, Justin Russell- who happens to be one of Straw’s erstwhile advisers. Russell also takes a swipe at ‘radical non-interventionism’, arguing that while it may avoid the danger of children becoming labelled as offenders,  it does little to provide them with practical help with their underlying needs and may, in reality, amount to something more like benign neglect, in the absence of any other support in their lives. In asking whether diversion from the youth justice system is always in a child’s best interests, Russell is suggesting that policy and practice have once again lost their way.

Russell seems distinctly lukewarm about the mantra ‘child first, offender second’ which the Youth Justice Board has recently embraced as a guiding principle for practice.  He accepts that each child’s own welfare and experience of trauma must be addressed but worries that Youth Offending Teams (YOTs) are losing sight of the second part of the formulation and paying inadequate attention to the risks children can present to other people including their own families. Russell thinks this is more likely to happen when YOTs “become completely subsumed within children’s services departments and lose their separate identity”.

Four years ago, in his youth justice review Charlie Taylor-subsequently YJB Chair and now Chief Inspector of Prisons- took a different view. He was worried that YOTs were too often in a separate silo, unable to get necessary social care, education, housing or health services for children who needed them.  He wanted the requirement for local authorities to establish a YOT to be removed. That recommendation wasn’t accepted, and efforts to integrate youth justice into wider children’s services have had mixed results at best. But is that because the model is flawed, poorly implemented or inadequately resourced?

By suggesting that diversion has gone too far and children's needs are being prioritised over public protection, Russell has reignited an age old debate about the best way to tackle youth crime.  It’s common ground that many of the children who commit offences need a wide range of assistance if they are to achieve their potential. Scholars and policymakers have long disagreed at what stage in their lives and on what basis such help should best be provided -whether as part of the justice system or outside it for example.   

 If it’s a question of help such as speech and language support, mental health treatment or employment training, I wonder about the significance of such disagreements – not least to young people themselves. One of Schur’s surely correct prescriptions is that we must take young people themselves more seriously.

Another of Schur's insights is that some of the most valuable policies for dealing with delinquency are not necessarily those designated as delinquency policies. He is right if he means that ideally, children should have their needs assessed and addressed with as little stigmatising involvement in criminal justice as possible. But in the real world some specific focus on children who harm others sometimes seriously and persistently is surely not unreasonable.  Determining where its limits lie has always been the problem.  

Our absurdly low age of criminal responsibility notwithstanding, the last decade has seen the formal youth justice system doing less and less with fewer and fewer children. In many respects that's a good thing. But it's arguably disclosed a deepening reservoir of unmet need.        

In terms of future directions for youth justice, could Russell’s intervention be a straw in the wind?

 

Same Old, Same Old?

 

There are some useful if narrow recommendations in the first part of the Justice Committee report on children in custody published today. Ensuring those who turn 18 while waiting for a court date should be sentenced as children rather than adults, and providing “intermediaries” to help vulnerable child defendants participate in court hearings, are long overdue. But well done to those who have lobbied for the changes.

It’s been obvious for a while too that the MOJ and YJB need to get a better handle on the various out of court measures which are used for most children in trouble -by better data collection, evaluation and a funding review.  

There is likely to be less consensus about the merits of direct recruitment to the youth magistracy so JP’s can specialise in youth court work from the outset. And whether to make Youth Rehabilitation Orders available for first time offenders at risk of custody could divide youth justice specialists. But the inquiry deserves credit for bringing these matters to attention.

On some of the bigger questions the report is disappointing. MPs want to know what resource has been allocated by the MoJ to addressing racial disproportionality. Given the significance of the issue, why didn’t they simply ask ministers and officials during the inquiry? Or about the court backlog or what’s being done to support participants in remote hearings- both subjects on which the Committee now want information.  

On three substantive questions the Committee has held its fire. They like the idea of a “feedback loop” between the Youth Court, Youth Offending Teams and the young person which may help improve transparency and support rehabilitation. But they recommend only “a review of current sentencing options, with a view to introducing it”. Four years ago, Charlie Taylor’s Youth Justice Review worried that “magistrates can play little or no role in overseeing a child’s progress against the sentence they have passed.” The MoJ rejected his radical proposals for fixing that but promised to explore ways to strengthen courts’ involvement with children they sentence. Something more than another review is needed if anything much is to happen on this front.

That’s even more true in respect of the minimum age of criminal responsibility. Despite England and Wales’s status as an international outlier, the Committee “are not persuaded that it should be immediately increased” from 10. Presumably agreement among the members could be reached only on the weasel words “we consider there is a case for reviewing the age of criminal responsibility”. This seems to fly in the face of the evidence they received. The report claims that “there are …. many organisations and individuals who do not think the age should be increased”. It mentions only one, the MOJ, which it then asks to conduct the review. The Committee does recommend that if the review concludes that the age of 10 should stay, “the Ministry set out the evidence and reasoning to justify it”. But the long grass beckons for this one too.  

As for the headline finding – that meeting the complex needs facing children in youth justice requires a “whole system approach” involving educational, psychological and social services- there are not much more than warm words. Of course, they are the right words, but finding the best ways of delivering these services to the right children, at the best time, and at the necessary scale are not at all straightforward and need much more consideration. 

Perhaps the second report will provide it.

Rules Don’t Apply

Friday’s Sun included a strongly worded comment piece lambasting Covid policy as driven by “Matt Hancock, a fanatic, and Boris Johnson, a muddled old bumbler” and as inflicting unjustified misery and economic mayhem while failing to stop the spread of the virus. No surprise there -newspapers are free to voice a range of views on issues of the day – but more troubling is the fact that the writer of the piece is former Supreme Court Judge Lord Sumption.

He’s no stranger to controversy, admitting in August that he had not himself complied with “some of the law” and suggesting last month that people should decide for themselves whether or not to obey coronavirus laws. He went further yesterday arguing “it is about time we voted with our feet and took back control of our own lives.” Sumption is entitled to his libertarian views and but should he be expressing them?

For one thing it’s a breach of the long standing convention that judges should not comment publicly on the merits, meaning, or likely effect of government policy. For another, The Guide to Judicial Conduct says that judges "should be aware that participation in public debate on any topic may entail the risk of undermining public perception in the impartiality of the judiciary". It also says that "where a judge decides to participate in public debate, he or she should be careful to ensure that the occasion does not create a public perception of partiality towards a particular cause or to a lack of even handedness". There’s nothing remotely even handed in what Sumption has to say or the way he says it.

So what? He’s retired and surely he can say what he pleases. Unfortunately for him the Guide to Judicial Conduct makes clear that “a retired judge may still be regarded by the general public as a representative of the judiciary. Retired judges should exercise caution and are encouraged therefore to refer to this guidance so as to avoid any activity that may tarnish the reputation of the judiciary.”

Unfortunately for us, Sumption is not fully retired. He is one of four members of the Supplementary Panel of the Supreme Court so until he reaches 75 in 2023, he can be called upon “when additional judges are needed to form a panel of the requisite number”.

Call me old fashioned, but I’m genuinely puzzled as to how Sumption could now conceivably sit in any court let alone the highest in the land. I’ve made a complaint to the Judicial Conduct Investigation Office but am not expecting much. Sumption is probably a member of the club to whom ordinary rules don’t apply. If that’s the case, as Sumption says about Covid policy “this is worse than unjust. It is insane”.

A Game of Two Halves

When Justice Secretary Robert Buckland finally overcame technical glitches to give his sentencing speech at the Centre for Social Justice, it was like watching a game of two halves. Not surprising perhaps as the White Paper he was launching seeks to strike a balance between “making sure the public are safer from harm and, at the same time, ensuring offenders have the right opportunities to change their lives”.

He galloped through the more punitive reforms already trailed at the weekend, the dismal justification for which amounts to little more than the public “want to know that when serious and violent offenders go to prison, that’s where they’ll stay for as long as possible”.  He added a couple of other  gratuitous ideas  – potentially longer terms for children receiving Detention and Training Orders and trying to ensure courts impose more mandatory minimum jail terms for repeat offenders.  

More interesting,- not least it seemed to Buckland himself - were some of the “smart” measures he  went on to outline – more treatment options for people serving community sentences, an “empowered” probation service and reductions in the periods after which some sentences can be considered spent for the purposes of criminal record checks.  Tighter criteria for remanding children to custody are very welcome, so too a greater use of deferred sentencing to provide opportunities for accessing help with problems or taking part in restorative justice. Positive words about out of court disposals made a surprising change – though limiting police in law to just two types could have unintended consequences.  

There’s a nagging doubt that while the harder measures will definitely come to pass- legislation is expected next year - many of the smarter ones may not get beyond pilots or evidence gathering. Take Problem-Solving Courts, enthusiasm for which has waxed and waned for 20 years. This is at least the third iteration of pilots I can remember. They will have a harder edge this time round with immediate short custodial stays as a sanction for non-compliance with court orders – the so called swift and certain approach. But there’s a strong chance that problem solving (like restorative) justice is destined to stay at the margins of the way we respond to crime.   

In similar vein, Buckland rightly diagnosed the problem of people getting short prison sentences without courts seeing a pre- sentence report (PSR). His solution is not the obvious one - to require a PSR before custody can be imposed- but for further work to be undertaken “to build the evidence base”.  He spoke about neurodivergence – conditions such as autism and dyslexia –as “something that is very close to my heart”. But the White Paper proposal is for a national call for evidence to improve understanding. That’s fine as start but will it go anywhere beyond that?

In the meantime, the impact assessments (IA) published alongside the White Paper- always worth reading- show the likely consequences of the longer spells in prison- an increase in the adult prison population of 600 and the child custody numbers of 50.  These don’t include the effects of tightening up on minimum mandatory sentences for certain repeat offences, nor of any knock on sentence inflation which may result.  

With refreshing honesty, the IA also points out that longer time in custody may strain familial and community links, could limit offender motivation for re-engagement in rehabilitation, and ultimately increase the likelihood of re-offending.  It also risks increasing prison instability, overcrowding self-harm and violence.

That’s one reason it’s so important that the non- custodial measures in the White Paper work. Of course, the more "robust" they become, the more they can act simply as an ante-room to prison. 

As they say, in the end, it’s the hope that kills you. 

The Impulse to Punish

Depressing if predictable trailing of the forthcoming Sentencing White Paper today, with Justice Secretary Robert Buckland telling Sun readers “it’s time for a tougher criminal justice system” and the Prime Minister writing in the Express that “some individuals are so dangerous or their crimes so abhorrent that they should never be released”.

Some comfort I suppose that after explaining his plans to lower from 21 to 18 the age at which people convicted of murder will be able to be sentenced to spend their whole life in prison , Johnson clarified that he wasn’t “talking about permanently locking up young people who make teenage mistakes or commit youthful indiscretions”. Thanks for that . And maybe some promise in his view that “we need more and better rehabilitation behind bars, improved monitoring of and support for ex-prisoners and more effective non-custodial sentences for low-risk offenders”. But all in all while the numbers directly affected by his draconian measures may be relatively small, there’s a real risk of an inflationary knock on effect on sentencing levels for less grave crimes.

It’s possible that courts may re calibrate their sentences downwards in the wider range of cases where two thirds rather than half will be spent inside. But for some reason I’ve never understood, they are not supposed to take too much account of what a sentence means in practice.  More likely that some will take their lead from Johnson’s idea that public protection should be the single most important principle of sentencing and impose yet longer terms. Of course, public protection is important but the experience of the Imprisonment for Public Protection (IPP) sentence – widely acknowledged to be basically unjust -should serve as a warning against ignoring other purposes of sentencing.   

Johnson may be surprised to know that he has some support in international law. The Nelson Mandela Rules say that the purposes of a sentence of imprisonment are primarily to protect society against crime and to reduce recidivism. They go on to say that those purposes can be achieved only if the period of imprisonment is used to ensure, so far as possible, the reintegration of such persons into society upon release so that they can lead a law-abiding and self-supporting life. And that's a problem.  

Last week’s Public Accounts Committee Report showed the government’s abject failure to make progress on David Cameron’s 2016 vision of “a modern, more effective, truly twenty-first century prison system."  Given the financial constraints facing the government in coming years its hard to see much in the future.  We have heard about better rehabilitation in prisons for a decade but it seems much less capable of being delivered than are longer sentences.

Maybe the White Paper will have something more positive to say but I am not holding my breath.  As Nietzsche said, “ Mistrust all in whom the impulse to punish is powerful". 

Consulting Position

Last month the Ministry of Justice launched a consultation on doubling from 12 months to two years the maximum sentence for common assaults on workers in emergency services such as police officers, firefighters and paramedics. Although the maximum was raised from six to 12 months as recently as 2018 in the Assaults on Emergency Workers (Offences) Act, the consultation on increasing it yet further was promised in the 2019 Conservative manifesto.

According to the Sentencing Council (who themselves have recently consulted on guidelines for violent offences), common assault usually involves minor injuries with no lasting impact.  The Crown Prosecution Service (CPS) say that anything more than grazes, scratches, abrasions, minor bruising, swellings, reddening of the skin and superficial cuts should be charged as Assault Occasioning Actual Bodily Harm (ABH) which carries a maximum sentence of 5 years (7 for the racially aggravated version of the offence).  When there is really serious harm, GBH will be the offence- and for both ABH and GBH the fact that the victim is an emergency worker makes the offence more serious for sentencing purposes. 

  

There’s a strong argument that assaults on people who protect society and deliver services on our behalf is a more serious matter than an attack simply on an individual victim and whether the best way to respond to such assaults of whatever kind is through yet harsher punishment is a depressing but not unreasonable question to raise.

What’s less reasonable is for the Ministry of Justice to rely only on the actual or potential victims of the offence to help them answer it. Rather than proceeding with a public consultation, the MoJ has undertaken “targeted engagement” with 70 plus groups representing emergency workers along with the CPS, judiciary, lawyers and the Sentencing Council.  The representative groups include professional associations and trade unions, some familiar -the Police Federation, Prison Officers Association and Royal College of Nurses – some less so – the British Dietetic Association and the British Orthoptic Society.  

There was no consultation document as such but a letter from Justice Secretary Robert Buckland inviting consultees to give their “views as to whether the current maximum penalty provides the courts with sufficient powers to reflect the seriousness of the offending”. Feedback could include “the direct experiences of emergency workers or any qualitative or quantitative data you may hold on the operation of the existing legislation”.

What’s lacking is any consideration of the impact that the change might have on courts and prisons or the possibility that aims of sentencing other than punishment- particularly reparation to victims or the reform of offenders might be worth pursuing more vigorously in these types of case. Nor is the opportunity to comment on the knock on effects that such a big change might have on how courts may deal with ordinary assaults on members of the public.    

It rather looks as if the government has made its mind up what it wants to do and is looking simply for supporting evidence. Home Secretary Priti Patel described the consultation as sending “a clear and simple message to the vile thugs who assault our emergency workers – you will not get away with such appalling behaviour and you will be subject to the force of the law”. 

In fact, as Buckland’s letter explains, since the original legislation came into force in November 2018, of the 9,000 offenders sentenced for assaulting an emergency worker only one in six was given an immediate custodial sentence, the average length of which was 2.6 months. This does not suggest that courts are frustrated by the current 12 month maximum. The government clearly is.

The Sentencing Council expects their forthcoming guideline to increase sentencing levels when it comes into force. Unlike the MoJ, in finalising their guideline they will take account of the views of interested members of the public, professionals in the criminal justice field, academics and people with experience of the criminal justice system- and publish a response following consultation.

Buckland does not intend to publish a government response following his own targeted consultation. It’s probably clear what it will be.

Safety In Custody- A Case Behind the Statistics

Published today is the report of an independent investigation I’ve undertaken for the Ministry of Justice into a very serious assault that took place at HMP Bristol back in 2014.  AD, a Somali Muslim man was subjected to a violent unprovoked attack by white prisoner EF on the exercise yard in the prison’s Brunel Unit – a therapeutic intervention unit for prisoners with mental health problems where both AD and EF were accommodated. 

AD sustained life-threatening injuries which have proved enduring, involving both physical and mental impairment. He requires full-time medical care. Following a criminal investigation EF pleaded guilty to the attempted murder of AD. AD’s family, who participated in the investigation, have been devastated by what happened to their loved one and want to know how such a catastrophe could take place while he was in the care of the state.    

AD had been on remand at Bristol for more than six months. He suffered from a psychotic illness and while located on one of the prison’s main wings had been recommended for a transfer to hospital. He was instead moved to the Brunel Unit, where he resumed taking anti-psychotic medication. His mental health improved such that he was due to return to a main wing.  He was staying in the Unit for a few more days so that extra support could continue to be provided for him during a stressful period when he faced a court appearance and was being assigned a new key health worker. It was during this time that the assault took place.

EF had been in the Brunel Unit for six days having been remanded in custody, charged with murder. Mental health nurses at court recommended EF be placed in the Unit because of potential psychosis.  Once on Brunel, no risk that he might harm other prisoners was identified and his behaviour gave no indication that he might commit a violent assault. In fact, EF was highly delusional, forming a view that AD was the prophet Mohammed and his enemy. The assault was investigated as a hate crime by the police and undoubtedly contains elements of islamophobia, although how much of this was brought about by EF’s mental illness is difficult to say.

The investigation found that most of the decisions reached about the care of AD at HMP Bristol were, in the light of the relevant policies and procedures in force at the time, reasonable ones. But six months on remand was, in my view, too long.

As for EF, there were shortcomings in the way the decision was made to place him in the Brunel Unit and weaknesses in the assessment of the risks he posed while there.  The exercise yard was not properly supervised at the time of the assault – AD and EF were in the yard with a third prisoner but with no staff member present. The one prison officer on duty in the unit that morning was in the process of escorting another prisoner back from the yard to his cell.  The response to the incident was prompt once the alarm was raised by the third prisoner on the yard and by two civilian staff whose offices looked out on it.  

Most of the failings identified in the report were institutional in nature: confusion about the criteria for admission to the Brunel Unit, a lack of clarity about procedures there and a variety of interpretations among prison and healthcare staff about their respective responsibilities.

The shortage of prison staff available to work there on the morning the assault took place is a major concern.  The officer on duty was placed in a very difficult position. He did what he thought was best for the prisoners in his care by enabling exercise to take place. Although leaving the yard unattended for a short period was in line with custom and practice, it was not compliant with policy designed to ensure the safety of prisoners. The investigation found that the staffing complement of five officers for Brunel and the adjacent Segregation Unit was on average available only one day a week in the month leading up to the assault, with only three staff deployed on almost a third of mornings.

During the investigation, a particularly disturbing allegation was made that prison officers had been actively encouraging other inmates to attack Somali prisoners round about the time of the incident. The investigation found no evidence of any collusion between staff and EF in the assault on AD. But despite some commendable efforts by the prison to engage with the Somali community, the report finds that insufficient priority was given to address equality and diversity issues at the time.  As an example, EF told reception staff when he first arrived at the prison that he would only share a cell with someone from his “own ethnicity” and not with “a homosexual”; but the basis of these attitudes were not explored or challenged at all.  They should have been.

A troubling claim was also made by the governor of another prison in the South West who conducted an internal investigation for the Prison Service in the months after the assault. His report surprisingly found that there was no evidence to substantiate that EF chose AD for the assault due to AD’s ethnicity.  The governor told me that he added that statement after being asked by his superior to soften his investigation report and “lessen the impact” on the prison service. The prison service accepted my recommendation that this serious allegation of improper pressure being applied to the governor should be looked at separately.  

The independent report on this by Dale Simon, also published today, found that there was no substance to the governor’s allegation- he had in fact been encouraged to address the issue of racial motivation more fully in his internal investigation rather than play it down.  Ms Simon is concerned however that the internal investigation report was accepted by the Prison Service, “whilst in the full knowledge that the report had failed to explore the fundamental issue of possible racial or religious motivation”.    

It’s pleasing that all bar two of the 31 recommendations made in my investigation have been accepted. These include improvements to the management of the Brunel Unit, installation of CCTV cameras in its exercise yard, and work with Bristol based charity Stand against Racism and Inequality (SARI) to develop an action plan to ensure that equality and diversity issues are effectively led and managed in the prison. 

Whether some good can come out of an incident such as this depends on the wider context. HMP Bristol has been under extreme pressure in recent years with the Chief Inspector of Prisons invoking the Urgent Notification Protocol last summer. It’s one of seven prisons whose performance was rated as of serious concern by HMPPS in the last financial year.  There may be some slight cause for optimism in the 7% fall in serious assaults recorded in prisons last year. But there is a long, long way to go to ensure an acceptable level of safety in custody and to reduce to a minimum the chances of a similar disaster to that which befell AD occurring in the future.