2015 End of Term Criminal Justice Report: Some Signs of Promise but Must do Better

What should we make of 2015 as far as penal policy is concerned?  The new government has promised radical reforms at the heart of their agenda, but eye catching announcements like the closure of Holloway notwithstanding, we’ve yet to see much in the way of new policy or practice. As is always the case, there has been as much continuity as there has been change.

The controversial Transforming Rehabilitation reforms that placed 70% of probation work into the private sector got underway in earnest in February since when almost all prison sentences, however short, have been followed by a mandatory period of supervision after release. Inspection reports in May and November found the new arrangements presented a mixed picture noting continuing mistakes in allocating cases between the Probation Service and Community Rehabilitation Companies (CRCs), and variation in the quality of offender assessments. December’s revelation of serious failures by South Yorkshire CRC run by Sodexo confirms the impossible position faced by Paul McDowell who quit as Chief Inspector in February after it  had become known that he is married to the head of the company’s criminal justice operation.

Paul’s permanent replacement Glenys Stacey is due to start in the New Year and may wish to revisit the Inspectorate’s plan to discontinue monitoring the implementation of TR after March 2016- particularly if Sodexo fail to take remedial action and lose their contract in South Yorkshire. The National Audit Office plan to publish a report on value for money in the spring of 2016 but this looks too soon to be informative.  Proper scrutiny will be  essential   for a programme which NOMS former Director of Competition has recently described as untried, over complex and highly risky: “It is like watching people doing their best to organise the perfect train crash” he wrote in his book "Competition for Prisons Public or private?".

April saw reports that Sodexo were planning to replace CRC staff with automated kiosks and December saw Working Links reported to be planning large scale job cuts in their CRC's  in Wales and the West country, in part because numbers of cases are lower than forecast. In the context of these commercial woes it seems particularly unwise for the Magistrates Association to be relying on Working Links to help fill a hole in their budget- a conflict of interest that first came to light in May.

On prisons, new Justice Secretary Michael Gove surprised many with an impressive series of speeches promising progressive reforms, with backing from the very top of the Government. So far outline plans have emerged to replace old prisons with new and give Governors more freedoms but much of the detail must wait until next year. Gove won plaudits from reformers for reversing a series of his predecessor’s policies including the ban on books for prisoners, the secure college for young offenders and the criminal courts charge as well as a proposed prison training project in Saudi Arabia.

But at year end, there are signs the honeymoon may be over. Gove rejected almost a third of the recommendations made in Lord Harris’s review of self-inflicted deaths of young adults and has established a series of further reviews – on education and youth justice- which may not report until the summer of 2016. Nor will the new for old prisons plan deliver speedy change. Speeches aside, the new MoJ has not exactly hit the ground running.

The need for urgent action was made clear when outgoing prison Inspector Nick Hardwick reported on the worst outcomes for 10 years and more recent data suggest prisons are continuing to struggle with safety, violence and drugs - most recently it has emerged that the deployment of the National Tactical Response Group (NTRG) to deal with disturbances, has risen by more than 50 per cent in a year.  The prison population is projected to rise slightly less sharply over the next five years than was estimated last year, and Gove appears to have ruled out further reductions in staff numbers. But genuinely increasing education and rehabilitation opportunities will surely require a fall in prisoner numbers. While increased use of electronic tagging, greater opportunities for earned release and more aggressive repatriation of foreign nationals have been floated as options an overall strategy – such as justice reinvestment- is still lacking.

On the personnel front, Gove has brought ex NOMS supremo Sir Martin Narey onto the MoJ board to advise on prisons along with Sir Michael Barber who ran Tony Blair’s delivery unit. Narey’s intervention following the damning  independent inspection report on Rainsbrook STC can best be described as unwise while Barber found the space in his memoirs a few years back  to decry as absurd magistrates who avoided making custodial sentences because of their concern about the size of the prison population. Former counter terrorism police chief Peter Clarke will fill Nick Hardwick’s shoes inspecting prisons.

Elsewhere the House of Commons Justice Committee chaired by Bob Neill has started an interesting portfolio of work on young adults, the courts and restorative justice. The Committee is showing a promising critical spirit, censuring Gove for tapping up the successful candidates for the independent prison and probation inspection posts and calling for the criminal courts charge to be scrapped; ironically Neill was part of the standing committee  which voted down Labour amendments on the charge in the Criminal Justice and Courts Bill in the last parliament.

 Relatively little has been heard on criminal justice from Labour since the election but that is likely to change once Gove shows more of his hand. Whether they support constructive reforms or seek, as they did with Kenneth Clarke, to portray him as soft on crime will be one of the interesting political dimensions next year.

Why We Need a Rehabilitation Devolution

Among the wealth of information provided by the latest edition of the Prison Reform Trust’s excellent Bromley briefing, two findings stand out. First is the catalogue of troubles experienced by adults in prison compared with the general population. Prisoners are 12 times more likely to have been taken into care and regularly played truant as a child; almost two thirds have used Class A drugs compared to 13% of the general population while prisoners are over three times more likely to have no qualifications, never to have worked, or be homeless prior to imprisonment.16% show symptoms of psychosis compared to just 4% of adults outside.

A second notable fact is that the reduction in the use of custody for juveniles over the last five years has saved the Youth Justice Board more than £300 million. Taken together, these findings suggest a strong case for developing a strategy to shift resources away from imprisonment towards the kind of community based measures which can prevent people becoming involved in crime and meet their many health and social care needs if they do so.

Addressing many of those problems-mental health, education, addiction, and homelessness- are almost always matters for local agencies and organisations whether in the public, voluntary or private sector.  In a report out today published by Transform Justice, I show how giving local authorities and communities greater financial and organisational responsibility for preventing and treating crime in their area could both help to reduce it and to minimise the use of expensive and often ineffective national resources such as courts and prisons.

Drawing both on lessons from the USA and domestic pilot projects, Rehabilitation Devolution argues that if local agencies are made responsible for paying the costs of incarceration, they are more likely to take steps to reduce its use. Local authorities have shown they can use funds to lower the use of custody and making them pay for the costs of juveniles held on remand has contributed to a fall in numbers.  American states like Pennsylvania have established a formula that requires a percentage of cost savings achieved through reductions in prison numbers to be reinvested in public safety improvements while in North Carolina so called Justice Reinvestment initiatives have helped reduce prison numbers by 8%.

  

What does this suggest for England and Wales? The report proposes transferring responsibility for meeting the entire costs of custody for under 18's to local authorities and Police and Crime Commissioners (PCC’s), work to identify the best ways of transferring that responsibility to a more local level for young adult and women offenders, and inviting PCC's to chair new Justice and Safety Partnerships( JSP).  Involving judges, probation, prison, local government and health, the JSP’s would introduce greater regional voice in the system and provide a body to which criminal justice budgets might be devolved over time. The report also argues that as a localisation agenda moves forward local commissioners would not simply buy what is currently provided but develop the kind of  responses better able to serve their community’s needs. So rather than paying for  Feltham YOI, local authorities might be able to commission a less damaging environment for their troublesome teenage boys .

While this may look like bureaucratic and possibly unwelcome organisational reform, its purpose is to incentivise the bodies best able to deal with crime and offending to do so creatively and cost effectively. George Osborne’s spending review may have included an eye catching plan to close Holloway but modernising the prison estate apart, the Spending Review looks much like business as usual. New for old prisons may well be necessary but it is not sufficient to address our problems of penal excess.

Reducing sentence lengths is the most direct but politically riskiest strategy for reducing prison numbers - although the risks might be mitigated by intensifying regimes so a prison sentence of a certain length in the future counts for more than it does now.

 Alongside this, aligning the systems for sanctioning offenders with the measures which can prevent crime and reduce offending could help bring down the numbers in court and custody.  By doing so we can end up not with a near 90,000 prison population forecast last week but something approaching the norm for Western Europe which might see it closer to 50,000.                 

Gove Calls for the Police

To many people’s surprise, expectations of prison reform over the next five years are currently sky high. It’s not just Justice Secretary Michael Gove who has promised fundamental change.  The Prime Minister told the Tory conference that “when prisoners are in jail, we have their full attention for months at a time – so let’s treat their problems, educate them, put them to work”. How will we know whether these noble aspirations are translated into reality for the 85,000 prisoners locked up across the country?

We will know next week whether the Justice ministry has secured sufficient funds from the Treasury to make Gove’s promises look plausible but will probably have to wait a few more weeks for the comprehensive prison reform plan that officials are putting together. In the longer term we will need to rely on the reports of the independent Chief Inspector of Prisons to know whether conditions of detention improve and opportunities for rehabilitation increase in the way the government hope.

Today we learned who is likely to be making those judgements - former Met Police Counter Terrorism Commander Peter Clarke. Clarke has been nominated as a preferred candidate as Chief Inspector by Gove and although he will appear for a scrutiny hearing before the Justice Select committee – as will Glenys Stacey who has been put forward as Chief Inspector of Probation- chances are that the former Scotland Yard boss will be appointed in due course to replace Nick Hardwick.  Last year Gove appointed Clarke to lead an investigation of Islamist infiltration of the governance of schools in Birmingham. Although the report arguably helped end Gove’s term at education, he and Clarke seem to share views about the widespread nature of extremism in Muslim communities.

Whatever one thinks of Clarke, it is disappointing that the opportunity has not been taken to make the post of Chief Inspector of Prisons more independent of government. Last year Hardwick told the House of Commons Public Administration Committee that being appointed by and reporting to the Ministry of Justice is “by its nature incompatible with full independence” and proposed direct accountability to Parliament. The Committee recommended as much in their report but just before the election, change was rejected, with the MoJ arguing that allowing the inspectorate separate offices and a website plus more freedom to recruit its staff were sufficient to “reflect the unique watchdog status of HMI Prisons”.

At the same time, as if to amplify  concerns about independence, the Justice Committee were involved in a spat with Chris Grayling over the selection of Hardwick’s successor. The fact that the two "independent" members of the selection panel were revealed to be tory activists, led the Commissioner of Public Appointments to promise to amend the rules about panel membership. In the event no appointment was made but now that it has been, the Justice Committee will no doubt want to know who made it.

What else might they ask when Clarke comes before them for a pre appointment hearing? Most of their questions will no doubt focus on the skills, experience and values he will bring to a post which many consider as one of the foremost human rights monitors in the country. But there are three specific matters they would do well to raise.

First they will need to establish whether Mr Clarke has any family relationships that might cause a conflict of interest, such as that which ended Paul McDowell’s time as Probation inspector (and about which the Committee regrettably failed to inquire at the material time).

Second they might want to ask how being an ex-police officer could affect his judgement. After all inspection of police custody suites is an important role of the prison inspectorate these days. Former prison service staff are ineligible to be Chief Inspector of Prisons, but ex police officers seemingly not. His investigation skills will not be in question but will his impartiality?

Finally, they may want to ask a bit not only about how his experience in counter terrorism might affect his attitudes to the treatment of Muslim prisoners but about his other police roles too. For example he was deputy then acting head of personnel at the Met in the early 2000’s.  Today the Met admitted that that there had been no proper management of the deployments of undercover officers , even after the introduction of supposedly stringent legal controls. Was that debacle any part of Clarke’s responsibilities? Lets hope not otherwise he will be busy contributing to Lord Justice Pitchford's inquiry.

Dear George

Spending Review 2015 and Prisons

As you will know from the  Party Conference, David has made prison reform one of the key domestic priorities for our government. In my own speech in Manchester and several others (most recently last night at the Howard League) I have emphasised how rehabilitation is the most important aspect of imprisonment. Better education, together with improved mental health and substance misuse treatment in prison are essential to achieving our policy aim.

Unfortunately I have discovered that the prison system is in a parlous state, often struggling to provide safety and decency let alone equipping prisoners with the attitudes and skills they need to put offending behind them. In the circumstances there are simply no options for making further economies in the running costs of prisons. As I told the Howard League that journalists should have unfettered access to prisons, our scope for varnishing the ugly truth will be increasingly limited too.

As you know , I plan to replace some of our Victorian city centre prisons with larger, modern and more economic establishments  although your officials will no doubt tell you that that this has been proposed by pretty well all of my predecessors since the last century and will take a good deal of time and careful planning to achieve. I will also be making much better use of new technology although again you may feel that you have "heard all this before".

As you have been encouraging departments to consider radical structural reforms, I do however have two more proposals which will help us to reduce cost in the system while improving its quality.

The first is to look at transferring responsibility for elements of the criminal justice budget to a more local level with incentives for Police and Crime Commissioners and local government to do more. Boris has been doing some interesting crime prevention work in partnership with local authorities in London and I am sure you would see the sense of our new Metro Mayors playing a greater role. If they can reduce demand on the courts and on the prison and probation services, over time we can cut spend responsibly and sustainably- not by making the system “cheaper not smaller” as my immediate predecessor sought to do, but "smaller and better". There’s a rather good report by Transform Justice about so called Justice Reinvestment  here and I understand a follow up will be published shortly.

The second idea is to cut substantially the lengths of prison sentences served by all but the gravest offenders. We keep people in prison much longer than our European neighbours - as Herr Schauble might have told you- at significant financial, social and ethical cost.  

If we are to keep our supporters and the media on side, we will need some cover for this. What I am thinking of is making the serving of a sentence very much more demanding than it is currently so that offenders have to serve less of it.

I am not advocating the kind of short sharp shock military regimes that Willie Whitelaw and Michael Howard experimented with in the past. Rather it will be the education, employment and therapeutic interventions which will be intensive.  Expecting prisoners to work a full day and to participate in education and rehabilitation activities in the evenings and at weekends would make a prison sentence count for much more, not only for prisoners but in the eyes of courts and the public.  I will ask the Sentencing Council to recalibrate the going rate for all of the main of the offences in the light of the more exacting nature of the penalty of imprisonment.

As you will appreciate, establishing the necessary regimes will require a short term increase in funds so that adequate numbers of staff can be deployed. This will not be welcome news to you but the rise will be easily offset over time by not only averting the need for new prisons – the population is forecast to rise to 90,000 by the end of the parliament – but by actually reducing the number of prisoners.  50,000 is what the Justice Committee recommended a few years ago and that’s what I’d like to aim for.  By simultaneously cutting the length of stay but  enhancing the rehabilitative impact of that stay it should be possible. I believe its known as a double whammy.

Yours Ever,

Michael

Residential Assessment

When I stepped down as a member of the Youth Justice Board in 2006, I published a paper suggesting a wide programme reforms that would improve the way we prevent and respond to youth offending. Amongst the proposals was shifting responsibility for youth justice to the Education Department and looking at how residential provision within children’s services, education and health settings could, in appropriate cases, be made more widely available to young people in conflict with the law.

I was interested to see that the DfE review of residential care announced today includes not only children’s homes (both open and secure) but the full gamut of settings in which young people can find themselves living. These include “hostels and supported lodgings, residential special schools, care homes, NHS provision, family centres or mother and baby units, and young offenders institutions or prison”. The review will explore “when and for which children residential care settings of all types should be used”. It’s an ambitious, overdue and important agenda – as a 2003 study noted “historically whether the problem child has been cared for, punished, educated or treated has often been a matter of chance, depending upon which individuals in which agency happened to pick up his or her case.”

There are however two oddities about the review. The first is that a review of youth justice is already underway, announced in September by Justice Secretary Michael Gove. This will be considering inter alia “the delivery models for detaining young people remanded or sentenced to custody and for supervising and rehabilitating young offenders in the community… and the interaction with wider services for children and young people”. These are precisely the services which the DfE review will be looking at.  The centres of gravity of the two reviews are different of course but there is substantial overlap. Let’s hope there is scope for some joint activities between the two reviews as they consider the kind of residential options which might work best for young offenders living away from home .

The other oddity concerns the leadership of these reviews. The MoJ’s youth justice review is being led by a former head teacher, Charlie Taylor and the DfE residential care inquiry is headed up by former prisons chief Martin Narey, (who now sits on the MoJ board). Perhaps this apparent paradox will help ensure that the pieces of work are complementary in scope and consistent in message; or at least avoid the kind of departmental turf wars that  used to characterise policy on the care of troubled and troublesome children.

Martin has plenty of child care experience running Barnardo’s and subsequently advising the Government on adoption and on social work.  I'd like to have seen more transparency in the review documentation about the work he has done in the past for private security giant G4S.    After all the firm runs children’s homes as well as a secure training centre, and presumably stand to gain or lose depending on the outcome of the review. For the avoidance of doubt, Martin and the DfE should make it clear that he has severed his links with the organisation.

Brave New World or False Dawn? The Tory Agenda on Prison Reform

I haven’t checked but I’d guess that prison policy has seldom made it into a Prime Minister’s Tory party conference speech. On the face of it, David Cameron’s promise that “this is going to be a big area of social reform in the next five years” should be hugely welcomed by those of us who want to see radical improvements in the way we punish people in conflict with the law.

There’s no denying the Conservatives have come a long way since I (and Cameron as it happens) worked in the Home Office twenty years ago. When then Home Secretary Michael Howard (for whom Cameron worked as special adviser) announced in 1993 that prison works, he invited a victim of rape to address the conference. Yesterday Michael Gove was preceded by an ex offender made good and went on to say that “the best criminal justice policies are good welfare, social work and child protection policies”.

So are we about to enter a golden age of change in which offences are decriminalised, vulnerable people diverted away from the courts, greater use made of community based sentences and shorter prison terms served in genuinely rehabilitative facilities?  

Three big question marks hang over the reform policy. First of course is the strength of the political will behind it. Gove may have complained yesterday that those sent to prison spend their sentences in enforced idleness but he was quoting almost word for word what Kenneth Clarke had told the conference five years ago. Despite Coalition with a party with a track record of commitment to penal  reform , prison policy and practice was something of a disaster between 2010 and 2015. Partly this was because Clarke did not last -and there must be long odds on Gove staying the course. One wonders how widely his reforming zeal is shared- presumably not by Mrs May.

The cynic may wonder too if the PM’s apparent conversion to the cause may be in part to prepare his troops for a climb-down on votes for prisoners.  Once Cameron has taken his anti-emetic, bowed to the inevitable need to allow some prisoners at least to vote,  perhaps the party will return to a more familiar stance – particularly if by then he has  lost Gove  his “the great Conservative Reformer”.

The second problem is the money.  Gove’s laudable desire for more education and help for prisoners to address the often catastrophic life experiences which have led them into jail does not come cheap. Even training prisons for young offenders – the highest priority in a sensible system- have been pared back so that almost half of prisoners are kept in their cells all day. On the day Gove made his speech, the Prison Inspectorate was describing Aylesbury YOI as having a very poor regime that fosters inactivity and indolence. The reason? Chronic staff shortages.

With at least 25% further cuts to come, Gove will have to explain sooner or later how he will do more with less. He may have been able to conjure up a standing ovation by calling for better prisons but he’ll need to magic up some serious funds to create them. Selling off inner city jails may help but there are sequencing problems in that strategy - developers won’t take kindly to Gove’s brand of sitting tenants.    The cynic may wonder too whether Gove’s plan to give Governors greater responsibilities may be a way of sloughing off his own. Without enough staff, the most able governors will struggle to cope let alone innovate.

There is of course a way of solving the money problem which is to lock up fewer people for shorter periods.  But this is the third and biggest problem. Cameron urged us to “get away from the sterile lock-em-up or let-em-out debate, and get smart about this”. The reference may be to the "Smart on Crime" movement in the US, but there, behind the neutral sounding slogan is some pretty serious “let em out”. Indeed the Justice Department is about to release 6,000 drug offenders serving terms now considered way too harsh.

Yet sentencing reform does not seem on the agenda here at all and restrictions being introduced on cautioning fly in the face of the first smart on crime principle which is to prioritise prosecutions on the most serious cases.

It may be that the government will be able to pursue alternatives to prison for low level non- violent crimes; Cameron suggested that “where it makes sense, let’s use electronic tags to help keep us safe and help people go clean”. But let’s remember David Blunkett was heralding tags as Prisons without Bars a decade ago and they have delivered considerably less in the meantime. And diverting short term prisoners away from custody doesn't save you much in the great scheme of things.

Where the Coalition government has taken action is in trying to improve re-entry to curb repeat offences. But the results of the introduction of post release supervision for all prisoners (let alone the impact of the wholesale re-organisation of the probation service deemed necessary to fund it) are not yet known.

Lack of evidence about success may not stand in the away of a similar regime change in the prison system. Cameron’s description of prisons as “a service run by the state that all too often fails and entrenches poverty” suggests radical change may be on the way. Whether it will bring with it radical improvement must be open to doubt.

Jailed for Watching Daytime TV: the Need for Prison Reform in Africa

In a recent report on over incarceration and overcrowding, the UN Commissioner for Human Rights has argued that that custodial sentences should be imposed as measures of last resort and applied proportionately to meet a pressing societal need.   A recent visit to East Africa illustrated that much more needs to be done if that is to be achieved in the region.

One 22 year old Tanzanian explained that he had been sentenced for watching television during the day- his offence seemed to be one of “idleness”.  Although his punishment was community service, this had only been imposed after he’d spent four days in prison. Throughout Africa prison appears regularly used to punish these kind of colonial era offences or for failures to comply with contemporary government regulations whether about conducting business, (such as operating a club without a licence) or obtaining fuel (such as making charcoal in the forest).

Most of the Kenyan cases we heard about involved illicit alcohol- brewing it, selling it, getting drunk on it even carrying it.  A presidential decree in July urged a crackdown on so called secondary alcohol and this is being vigorously enforced by local administrators. The country has a serious problem with drinks known as Changaa or Mugacho which, when adulterated have led to deaths by poisoning, blindness and what was described to us as a failure by men to carry out their husbandly duties.  But some at least of the drinks play a role in traditional customs at weddings, parties and other gatherings.  

Evidence outside a Kenyan Court

More than a third of the 300 women (and their 50 babies) we saw in Meru prison had been committed for a failure to pay large fines imposed for alcohol related offences of one sort or another.  While many are likely to see their sentences commuted to community service through a High Court “Decongestion Programme”, using criminal justice to crack down on the problem has created additional hardships on those who make their living by producing it and put considerable pressure on an already overstretched prison system. 

That system still suffers from the persistent problem of excessive pre- trial detention; almost 800 of the 1200 men locked up at Meru were awaiting trial. Some were charged with serious and non bailable crimes but more than half, according to the Superintendent, were facing charges for petty offences. One barrier to their release is that magistrates worry about being thought corrupt if they free a defendant. Another is that, if they do so, the police are unwilling to pursue him should he flee. The result is unaffordable bail and routine remands in custody, sometimes for longer than any likely sentence.

Some defendants choose to bear the miserable conditions rather than change their plea, either through determination to maintain their innocence, fear of mob justice in the community or to benefit from the limited food and shelter unavailable to them outside. Judicial reform and performance management initiatives in both Kenya and Tanzania look so far to have failed to tackle some of the underlying dysfunction in the countries’ criminal justice processes. Indeed it may have made things worse. One magistrate told us his target of completing 250 cases a year provided a disincentive to adjourn cases for a report on an offender’s suitability for an alternative sanction.         

There look to be some relatively easy prison reform wins; Kenya has no remission or parole, and Tanzania does not even subtract time spent on remand from the length of prison sentences.  Taking action on these are the kind of steps the UN Commissioner wants states to take to prison  overcrowding so that they "comply with their international obligations, and  guarantee detainees the dignity inherent to every human being"

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