Out of Court, Out of Favour?

 

It’s encouraging to see a renewed focus on dealing with low harm crime out of court, at a well-attended Diversion Summit in London today and in the latest Transform Justice Podcast. Lots of evidence shows that well implemented arrangements for offering community resolutions, cautions and deferred prosecutions can offer a swifter, more certain and more effective response to offending than processing cases in the courts- and one which can be more satisfying for victims.

But the use of these options has fallen to a greater extent over the last ten years than has charging. As Chief Inspector of Police Andy Cooke told the Summit, diversion is essential and the police could use it more, and more consistently. There’s huge variation between Police Force areas in the extent to which out of court disposals (OOCD) are used for children and adults.

Part of the problem is the politics – OOCDs sound like a soft option- but on this as with sentencing, the public and victims are not necessarily as punitive as the politicians suppose-  or perhaps would like them to be.  

Another challenge is the way police performance is assessed. The Summit heard very promising results from a trial of deferred prosecution in London about which Met chiefs are wary. Why?  Because however good the results in terms of compliance and re-offending, Home Office counting rules don’t recognise the measure as a positive outcome in terms of clearing up crime. It’s puzzling if what Cooke called a “ridiculous bureaucracy” is discouraging the roll out of 'interventions before pleas' as recommended by David Lammy’s review of racial disparities five years ago.

A third barrier is a police culture in which charging is the default option and the effort involved in setting up and monitoring rehabilitation measures puts officers off doing it. Several forces have developed elaborate and properly resourced programmes and partnerships to screen eligible offenders, match them to the interventions they need and track their progress. 

The summit heard about how a technological platform developed by social enterprise Make Time Count can make these tasks less time consuming although I’d have thought that some candidates for diversion – particularly young people with low levels of trust in the authorities- may have reservations about downloading a police app on their phone. More fundamental perhaps is the issue of what types and intensity of interventions should be available, how they should be determined in individual cases and who provides and pays for them.  Effective diversion may save the system money but there needs to be significant front loading of funds to get it off the ground.

A recent report by the Magistrates Association  claimed the “patchwork of implementation and monitoring of OOCDs has led to a troubling overlap between the powers of the police and the sentencing powers of magistrates’ courts.” While this may be overstating it, there's a wide range of diversion practice in place. This may be reduced somewhat when a national scheme for community resolutions and cautions is introduced this year or next. But questions will remain about what kinds of offender and offence should be dealt with out of court.

In particular, should repeat offenders qualify for a diversion option? Proponents of desistance theory would not want to rule it out and a scheme of rigid escalation into court is not likely to produce the best results. 

Police decisions are made with reference to a gravity matrix which aims to ensure that the most serious offending goes to court and the least serious kept out. There may be a need for Police Chiefs  to consult on the appropriateness of their current guidance in the matrix for the cases in between – in the way that the Sentencing Council consults on its guidelines . Minimum standards for the Scrutiny Panels which provide oversight to local diversion arrangements might also be needed. 

Those changes should help to win over the sceptics and ensure diversion can play the more central role in responding to crime which the evidence suggests it should do.   

 

 

 

Hindsight: Is the new Prisons Minister making a Quick Fix or Long term Plan for Youth Custody?

 

Just before Christmas, in a letter from Prisons Minister Damian Hinds to the Justice Committee, the government slipped out their decision that Rainsbrook Secure Training Centre (STC) will not be re-opening, for young people at any rate. The Ministry of Justice has spent the best part of a year deciding what to do with the empty centre since its contract with private provider MTC to run the child jail was terminated in December 2021.

Rainsbrook was the second STC to open, in July 1999. Five years later, 15 year old Gareth Myatt died there in shocking circumstances while being physically restrained by staff. Initial contractor G4S continued to manage the centre and for some time it probably performed the best among the four STCs. But in 2015  inspectors reported on serious incidents of gross misconduct by staff, including managers, with young people subject to degrading treatment, racist comments, and care by personnel under the influence of illegal drugs.

A year later, US company MTC won the contract to run Rainsbrook , but Inspectors raised urgent and significant concerns about treatment and conditions in 2020 and 2021. After being told it was unsafe for residents and staff, then Justice Secretary Robert Buckland removed the 33 children held there in June 2021. A third of these were “decanted” to Young Offender Institutions (YOI), including a small number of girls who were placed at Wetherby YOI. Girls under 18 had not previously been placed in YOIs for many years.

Earlier this year, the National Audit Office (NAO) reported that the MoJ was considering re-opening Rainsbrook STC at reduced capacity and with  increased staff-to-child ratios, possibly under prison service management. This would help meet the expected increase in demand for youth custody places. But now it seems, the capacity is no longer thought to be needed.

Despite projected increases the numbers of children in custody have remained under 500 during the course of this year.  Indeed, occupancy levels remain low enough for Hinds to tell MPs that the Youth Custody Service will keep more young people in the youth estate beyond the age of 18, instead looking  “to transition young people up to their 19th birthday where appropriate”. Girls will once again be held in an STC – Oakhill, the last one operating- although some may stay at Wetherby YOI.

Strangely, annual prison population projections, normally published in November, don’t seem to have been produced this year.  So there’s no update on whether the numbers of juveniles in custody are still likely to rise to 700 by 2025. Given the volatility of the youth custody estate, any increases could put at risk modest improvements in safety and regimes seen recently.  

In the meantime, what will happen to the Rainsbrook site? Hinds wrote that wider work is taking place to determine how best the site can be utilised in the future, and, somewhat delphically, that the decision “will allow us to focus on other areas of our work”. The NAO report suggested that the MoJ had ruled out turning it into a second Secure School because of the costs and delays of doing the necessary building conversion.

Turning Medway into a suitable site for the first Secure School has taken much longer than planned- and Hinds’s letter reveals yet further delays. The Medway school is apparently on track to open in Spring 2024 - later than the November 2023 to February 2024 window officials promised MPs on the Public Accounts Committee in May . It seems odd that no funding agreement has yet been signed with the provider- Oasis Restore- that was selected back in July 2019. No doubt the MoJ will explain when they provide the Committee with an update on progress against the timetable in January 2023.

Perhaps Rainsbrook will be used to provide extra places for the men’s estate which is under so much pressure that police cells have been made available to the Prison Service. It’s close to two prisons and while its design as an STC is not ideal for adults, Medway STC was briefly used for adults during lockdown, (before work got underway to make it more suitable for children).

The Justice Committee will surely want to question Mr Hinds early in the New Year about his planning for custodial capacity both in the childrens’ and adults’ estates.   

Cell Therapy: Could Shortage of Space Inject a Dose of Reality Into Prison Policy?

Wednesday’s announcement by Prisons Minister Damian Hinds that he had requested the use of up to 400 police cells came as something of a surprise. It’s true that last week, his boss Dominic Raab told the Justice Committee that “there is a very significant capacity issue in our prisons.” But nobody followed it up with him.

Maybe that’s because five weeks ago Hinds’ predecessor, Rob Butler had told the Justice Committee

  “ the important thing is for people to know that there is the capacity, if someone is remanded in custody, that there will be a place for them and it will be the right place”.  

Quite why Butler gave such a hostage to fortune isn’t clear – he’s admitted that the sudden growth in the adult male custodial population started during his brief tenure in the Ministry of Justice which ended just two days after his unwise words of reassurance in Parliament.

Hinds tried to convince MPs that this week's statement did not reflect a failure to plan ahead but a response to “a highly unusual acute short-term surge.” He was unable to explain the reasons for the timing of this, other than implausibly blaming the aftermath of the barristers’ strike. 

A good part of the problem lies with supply rather than demand. Hinds said that the additional capacity was needed “to ensure the smooth running of the prison estate”. Given existing pressures in many local jails, a sharply rising population could make prisons unmanageable without some form of safety valve.

Take HMP Bullingdon in Oxfordshire, where 45% of prisoners are on remand. The Independent Monitoring Board who publish their annual report today say the prison continues to be chronically overcrowded, with 521 cells designed for single occupancy, mostly occupied by two prisoners. “Overcrowding also puts great pressure on communal spaces and facilities. It is incompatible with the fair and decent treatment of prisoners”.

The IMB also worry that “chronic staff shortages will begin to have a greater impact on the safety and stability of the prison”. Levels of violence, they say are still far too high and despite the introduction of an airport style scanner, the quantity of drugs coming into the prison remains high. 

So good on Prison Service chiefs for confronting ministers with uncomfortable and no doubt unwelcome truths about the quality as well as quantity of prison capacity and its ability to absorb more and more people at present. Their plans to increase that capacity through more use of “identified contingency spaces” and postponing all non-essential maintenance work are not quite so welcome.

If the crisis continues, Ministers will have to consider more radical measures. They could encourage courts to make greater use of recently introduced GPS tagging to place more defendants on conditional bail rather than in custody. Or introduce an End of Custody Licence along the lines of the scheme that ran from 2007-2010, allowing eligible prisoners serving sentences to be freed up to 18 days before their release date.

More fundamentally still, the Sentencing Council could be asked to look at their guidelines to align the demand for prison places with supply. After all that was its original though long since diluted purpose. 

Moderating sentence lengths wouldn't go down well with former School Standards Minister Jonathan Gullis who is keen to see "scumbags locked up for a longer period of time". Raab too told the Justice Committee last week that he “could fill the prisons 50% higher than they are today".

But Raab went on "the reality is that we cannot keep exponentially increasing the prison population”. Hinds said that for types of crime other than the worst “it is important that we utilise alternatives to custodial sentences”.

Is it possible for some good to come from the current crisis?

 

Notes on a Scandal: Why We Need More Secure Accommodation for Children

 

Not for the first time,  a senior judge has described the shortage of secure accommodation for the most troubled children in England and Wales as a “national scandal” after being told that last Friday 62 beds were needed and only two available.  The girl whose case the judge was considering was being cared for in an unsuitable hospital setting where most other patients were adults.

Last summer,  Supreme Court Judge Lord Stephens slammed the lack of proper provision for children who need to be detained to protect themselves or others as “disgraceful and utterly shaming". More than four years ago the most senior family judge was concerned at how many young people were having their liberty deprived in units which had not been approved as secure children's homes (SCH).  

So what’s the position? At the end of March this year, 220 approved places were available in 14 secure childrens homes in England and Wales, eight fewer places than in 2019; and 71 fewer than in 2010, down by a quarter in 12 years.  16 SCH’s have closed since 2002.

105 of the 220 available beds were contracted to the Ministry of Justice for children remanded or sentenced by the criminal courts, leaving just 115 for so called welfare cases. These are, in Lord Stephens’ words, “unfortunate children, who have been traumatised in so many ways, are frequently a major risk to themselves and to others. Those risks are of the gravest kind, and include risks to life, risks of grievous injuries, or risks of very serious damage to property”.

In their annual report for 2020-21, Ofsted said that around 25 children are waiting for a secure placement on any given day, at times substantially more. They also reported that on average 20 children from English local authorities were living in Scottish secure homes, having been placed there due to a lack of places in England. Ofsted said that the Scottish government had decided not to accept placements from local authorities outside Scotland from 2022, but I don’t know whether this has happened, further reducing available places.  The number of secure beds for children in the health service in England fell from 222 in 2017 to 188 last year.  

It's also true that some children’s needs are so complex and demanding that SCHs can’t always run at full capacity. This helps explain why a third of places in SCH’s were unoccupied at the end of March.  

So what have the government been doing to address the long standing problem? 

The 2021 Spending Review announced a welcome £259 million capital funding to increase both secure and open children’s homes, but details of the “transformational investment” is hard to find beyond a press release from the end of last year.  This says that final numbers of places in secure children’s homes being created will be confirmed in due course but as recently as June the picture has been opaque. New places require the commitment of local authorities but a clear plan setting out what is being funded over what timescale is surely overdue.

In the meantime, the Independent Review of Childrens Social Care has recommended that there should be enough SCH places not only to meet the needs of welfare cases in every region but  to end the use of “inappropriate and damaging” Young Offender Institutions and Secure Training Centres (STCs) for children in the youth justice system. At the end of June, I estimate there were 365 children under 18 in YOIs and STCs, with numbers projected to increase substantially over the next few years. While increased demand may be met in small part by 49 places in the new Secure School due to open in early 2024, accepting the Care Review’s recommendation would entail more than doubling the size of the existing SCH estate.

As the Care Review put it, “the prospect of recommending an increase in the number of secure children’s homes, or detaining children for justice and welfare reasons at all does not always sit comfortably”. But in cases where depriving a child of their liberty is genuinely necessary, SCHs provide much higher quality care than other options. Much more urgency is required to ensure there are sufficient beds to avoid placements in unapproved settings, to close Secure Training Centres and phase out prison service accommodation.   

Last year, Lord Stephens thought the scandalous lack of provision contained “all the ingredients for a tragedy”. We need to know what is being done to avert that.

Fires in Prison- A Neglected Issue of Safety ?

 

Statistics out today show an unwelcome uptick in fires in prison in the last financial year.[1] 

According to Home Office data, Fire and Rescue Services attended 840 incidents in prisons in England (plus a further 11 in what are referred to as Young Offender Units). For prisons, that’s almost 30% up on 2020-21, though thankfully lower than the year before Covid. The chart below shows pretty unclear trends over the last decade- unlike fires in hospitals (the yellow line) which have shown a slow but steady decline.

  

  

Fortunately, fatalities and casualties were reported in only about one in 10 fires, with "casualties" covering not only those with injuries requiring hospital attention or first aid at the scene but also those advised to have precautionary checks.

In the vast majority of fires, either no damage resulted, or it was limited to an area of less than 5 square metres. In most cases, evacuations were not necessary although on more than 180 occasions up to 5 people had to be “directed from a dangerous place to somewhere safe” and on one occasion more than 20 people.  In 170 incidents, people “received physical assistance to get clear of the area” involved.

More than nine out of ten prison fires were started deliberately with paper/cardboard and clothing/textiles being the commonest items ignited. Faulty apparatus or leads caused 17 of the accidental fires, misuse of equipment nine and “playing with fire” three. 

87% of fires were discovered immediately or within 5 minutes of starting, but 52 fires took between 5 and 30 minutes to discover. In 92% of incidents the fire service were called within 5 minutes. The first vehicle arrived within 5 minutes in 70% of incidents and within 20 in 97%.

While most prison fires look to be small scale and the response generally prompt, it is troubling but unsurprising to find that in 751 out of the 840 fires there was no fire safety system in place such as sprinklers. In 625 cases an alarm went off but in 81 there was no alarm and in 134 it did not operate or in fact raise an alarm.

Prisons chief Phil Copple told MPs in May that “we have about 35,000 prison places across the system that do not meet current fire regulation standards, and we have “temporary mitigations” in place agreed with the Crown Premises Fire Safety Inspectorate (CPFSI) to make sure that they can continue in use”. CPFSI enforces the 2005 Fire Safety Order in government buildings. This says that any person who has some level of control in premises must take reasonable steps to reduce the risk from fire and make sure people can safely escape if there is a fire.

In June, the Justice Committee asked then Prisons Minister Victoria Atkins about the temporary mitigations, and when she expected that all prison places will meet fire safety regulations. They haven’t had a reply – probably delayed due to the turnover of Ministers, the Committee has explained. CPFSI did tell me that the mitigation they accepted "related to single point smoke alarms for each individual cell. This was only a temporary measure until the programme to install automatic in cell fire detection is completed". CPFSI have previously reported that "it has proved to be a major managerial challenge for prison staff to prevent tampering and vandalism to these domestic smoke detectors."  

We know from Copple’s letter to the Assistant Coroner for Kent and Medway last year that the rollout of automatic fire safety systems across the estate “is forecast to be delivered and completed within the next five to seven years.” His letter was in response to the report of an Inquest into a prisoner who died in 2019 by smoke inhalation when a fire developed in his cell at HMP Swaleside. 

Copple told the Coroner that across the estate, interim safety measures are in place including- in addition to the portable fire detection devices in all cells that do not have automatic systems- more water mist firefighting equipment and portable smoke ventilation fans. There are annual inspections of fire safety equipment and of arson reduction strategies. There is improved staff training. 

The Independent Monitoring Board at HMP Styal in Cheshire has recently reported that as a result of an Enforcement Notice from CPFSI, the prison had to provide improved fire alarms and fire doors and remove all non-fire retardant furniture, bedding and soft furnishings. Moreover, "prison staff have endeavoured to reduce the fire risk for prisoners in the affected houses by implementing measures such as not locking them into their cells at night."

In his report, the Kent Coroner suggested that as another interim measure, in-cell fire detectors could be added to a small number of cells for prisoners that pose a higher risk of self-harm, barricading and fire setting. This was rejected by the Prison Service as "not feasible".  

I proposed last year that the Home Affairs and Justice Committees hold a short inquiry into fire safety in prisons and other places of detention. The latest figures add weight to the case for greater scrutiny of a neglected issue of safety. 

The Committees should also look at whether the CPFSI has the resources it needs. It has yet to publish an annual report for 2020-21, let alone 2021-22.

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[1] Prison data is available in the pivot tables in the “Other building fires dataset” https://www.gov.uk/government/statistics/fire-statistics-incident-level-datasets

Separate and Silent

 

The prisons inspectorate (HMIP) published its first ever report on Separation Centres for terrorist prisoners today. First established five years ago, there are currently centres at Frankland and Woodhill high security prisons with a mothballed unit at Full Sutton. Their aim is to prevent prisoners with extreme views from radicalising others in the mainstream prison population, planning terrorist acts or disrupting good order in the prison.

Because  the use of the centres “has never fully taken off” , Prison inspectors possibly haven’t thought it worth their while to visit up until now. It's true that there are only 28 places in the three prisons, with only nine prisoners in the functioning units during April’s inspection visit. In fact there have only been 15 held in the centres over the last 5 years, all Muslim men; and only 21 referred for placement between 2017 and the end of last year.  These are much smaller numbers than are held in the longer established Close Supervision Centres (CSC) which hold prisoners posing the highest risks to other prisoners and staff and which HMIP visited in 2015 and 2017. 

But the Separation Centres should really have been inspected sooner, certainly well before the Government decided that they, along with the CSCs, should be more widely used.  Separation Centres also hold some of the most challenging and dangerous prisoners in the system, who are rightly subject to high levels of security and control. These can inevitably raise human rights concerns. Prisoners at Woodhill have in the past made allegations that institutional racism caused the Prison Service to establish such units only for Muslim prisoners.

Not least as the body leading the National Preventive Mechanism (NPM) which focuses attention on practices in detention that could amount to ill-treatment, HMIP should have taken more of an interest. Their inspections are based on international human rights standards, and according to the Ministry of Justice, some prisoners have used the Human Rights Act to frustrate their placement in a Separation Centre. Tellingly however, “the decision to locate a prisoner in one of the centres is part of wider national security and, as such, not within the remit of the Chief Inspector of Prisons to comment on”.

Making it easier for the prison service to use the centres in the future followed recommendations to that effect earlier this year from Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation (who I was surprised to discover is also a member of the NPM).  Hall’s report on Terrorism in prisons implied the centres were underused, blaming a low referral rate on an undue focus on the damage that separation might cause to the individual’s rehabilitation, with insufficient attention to the wider benefits of removing a radicalising individual from the wing.

As for the centres themselves, Hall was perhaps a little unwise to rely on a 2019  process study, undertaken entirely from a staff perspective, to conclude that regimes were “comprehensive in meeting the needs of the men and ensuring individuals were not disadvantaged by being separated”. In the study, "staff reported working tirelessly to provide a regime comparable to that provided in the main prison.”

Three years on, inspectors paint a more troubling picture. At Frankland “prisoners had collectively decided not to engage with the regime” and Woodhill’s day to day regime was often curtailed by serious staffing shortages. The decision by staff and leaders in both jails to describe the centres as “just another wing” meant that “opportunities were missed to think more creatively about how to work with prisoners”.

It’s encouraging that in today’s report, the inspectorate find outcomes to be good on safety- no violence was recorded in the year to April - and reasonably good on respect. But it’s puzzling that they rate management as reasonably good when “Governors and the separation centre management committee did not have a jointly agreed strategy and action plan, setting out the centres’ specific function that could be understood and acted on by staff”.

Less surprising is that work on “progression” - how prisoners can get back to normal location in the main prison- was not sufficiently good.  Most men refused to take part in formal risk reduction work, which made it difficult to identify any changes in behaviour which would evidence a case for ‘deselection’ from the centre.  

Even with a new policy leading to an increased number in Separation Centres and the likely re-opening of the Full Sutton unit, dispersal will rightly remain the predominant approach, with concentration reserved for the most dangerous few. For as the UN has said, keeping violent extremist prisoners separate from the general prison population can generate as well as reduce risks, elevating their status in their own and other prisoners’ eyes, reinforcing radicalised attitudes and/or enhancing rejection or stigmatization.

Hall is right that public confidence in the criminal justice system is shaken if terrorism occurs in prison or if people enter prison only to come out more dangerous; and the ability of prisons to function is gravely degraded if prison officers fear imminent terrorist attack. Finding the best way to prevent these outcomes must be a priority.

But as the UN has said, there is no one right answer to dealing with terrorist prisoners. What’s needed is more evidence about the effects of the Separation Centres and of other ways of accommodating them in England and Wales. Today’s report makes a welcome if overdue start to collecting it.    

Definitely Maybe: Will We Ever Get Secure Schools?

  

Back in 2016, the government said that failing detention facilities for children -Young Offender Institutions (YOIs) and Secure Training Centres (STCs)- should be replaced by a new generation of Secure Schools. How’s progress?

Glacial is too generous.

Prisons Minister Victoria Atkins told MPs on the Justice Committee last week that she’d like to get the first children into the first school at Medway early in 2024. “We are now on the road to construction” she claimed, confirming that expected costs of adapting what was the first STC have risen sevenfold to £36 million.

Across the road her Ministry of Justice (MoJ) officials were explaining to the Public Accounts Committee (PAC) that the building was not all that is under construction. The funding agreement with Oasis Restore, appointed in 2019 to run the Medway Secure School is still being designed.  As for a second school, officials admitted they haven’t yet done the planning for that.  Medway is a pathfinder, which Ms Atkins said, “we will be evaluating … very, very carefully”.

Reasons for the delay have included the need to ensure Oasis, as a charity, can lawfully run a child prison and to reach decisions about the spec for the building. But with a bit more political will, it’s hard to see why Medway couldn’t have been ready to start work a good deal sooner.  

As I wrote in evidence to the PAC, I’ve never really understood why a new model of youth custody is being developed in the shape of the Secure School when there is a perfectly good existing one in the form of Secure Childrens Homes (SCHs). SCHs provide by far the best quality of care in the existing youth custody estate, accommodating a variety of children whose liberty needs to be restricted whether because of criminal offending or to protect them from harm. Since 2002, 16 SCHs have closed. Would the MoJ not do better to contribute to an expansion of the proven model of SCHs rather than invent a costly and risky new one? The Education Department is already creating additional places in secure homes.  

At the Justice Committee, Ms Atkins pointed to complexities with SCH’s, arguing that since they rightly risk assess young people and decide whether or not they can manage that young person well, “we have to have options other than secure children’s homes”. 

But the Head of the Youth Custody Service made clear to the PAC that once the Secure School is running “it is entirely possible that Oasis say, “No, given the mix and the risk of the population we have, we might not be able to take this particular child.”   

A youth estate consisting of secure schools and SCH’s will always need some sort of backstop. 

It may be the recognition of this fact that accounts for what looks like a scaling back of ambitions for Secure Schools. Spiralling costs and a harsher Conservative approach to crime may also be causing ministers to have second thoughts.  Ms Atkins description of Secure Schools as “a pretty radical policy” and a “really brave effort” hinted to me at least, at the possibility if not of pulling the plug completely, then limiting the experiment to Medway.   

Officials were more positive about a “completely innovative” attempt to take a “really transformative vision”. But they admitted that their Department's commitment is only to trialling Secure Schools and  the Permanent Secretary made clear that “we are completely committed to the existing sector, because the vast majority of children are looked after within the YOIs and the STCs”.

Five and a half years after the Taylor Review of Youth Justice recommended fundamental change to the current youth custody system, the Independent Review of Children’s Social Care described  the state of child detention as abysmal, recommending that YOIs and STCs should be phased out within the next ten years and replaced by local secure children’s homes or Secure Schools.

The MoJ’s track record suggests that even if the recommendation is accepted, it won’t be delivered. The Social Care Review also proposed that youth justice policy should be moved to the Department for Education. This is something I called for when I left the Youth Justice Board in 2006. Unless it happens, I can’t see any major change to the way we lock up children.