Turning the Heat on the Ministry of Justice?

It used to be one of Whitehall and Westminster’s little secrets that witnesses appearing before Select Committees are told what they’re going to be asked. Nothing could be put in writing but in my day a committee clerk would phone a civil servant a few days before a minister or senior official appeared and run through the topics. Sensible to allow them to get briefed some might say and the MP’s are anyway free to ask questions in their own way – or even go off script. But the whole thing used to be a lot more managed than it seemed.

I’m not sure whether the Ministry of Justice top brass know what they are going to be asked this morning at the Justice Committee but the business is last year’s  MoJ's Annual Report “and related matters”. Are we likely to learn much?

After Liz Truss suggested to them last month that prison reform plans might be on hold, the Committee will want confirmation that this is not the case and ideally tease out a timetable for a plan, white paper or legislation. These will be met with a straight bat. On criminal justice, I hope the Committee has a go at three other topics.

First is the state of probation. The foreword to the Annual report says that Transforming Rehabilitation   “is still bedding in, but it is already showing innovation in how offenders are supervised and supported”. The recent Probation Inspectorate report on Through the Gate schemes found “there was little evidence of the anticipated creativity or innovation in the new services being delivered by the Community Rehabilitation Companies.” Permanent Secretary Richard Heaton told the Public Accounts committee in the summer that he was not 100% confident about the programme. When pressed he said he was 60%. What’s the percentage today he might be asked? His department has reviewed the whole programme and the Committee will want to know what they found and what they’re doing about it.

Second there’s electronic monitoring. As the MOJ’s earlier efforts to get satellite tracking off the ground were rated unachievable by the Infrastructure Agency and subsequently scrapped, the Committee will want to know if the plans for new pilots (shared with them in June) are faring better.

Third, there are two matters inherited from the ancient regime. What has happened to the Youth Justice review? And where are we with problem solving courts?  Mr Heaton may be sent out to beat the retreat on one or both- but will probably resort to the straight bat.

 If all that gets too exciting, the Committee could ask something about the governance of the department. Much has changed since the Department’s Single Departmental Plan was published and appointments made to its Board. Are both the plan and the Board still fit for purpose? Or does a new Ministerial team mean they will be up for a refresh.   

Where are we now on Prison Reform?

I couldn’t follow Liz Truss’s speech to the Tory Conference this morning as I was visiting a prison where I’m doing a piece of work. When I arrived there, I was told the Governors were all in a debrief after a death in custody- yet another wasted life to reinforce the urgency of what the new ministerial team at Justice have to do.

From time to time, Tory party conferences have signalled important changes in prison policy. In 1979 William Whitelaw assured the faithful that short sharp shock detention centres would “be no holiday camps”. In 1993 Michael Howard gave them his 27 point Prison Works package, (funds for which had only been secured hours earlier in a Blackpool hotel room showdown with Chief Secretary Michael Portillo). Last year, Michael Gove won his audience round to redemption by introducing a charismatic ex- offender who now works to rehabilitate others. What of Liz Truss today?

There will be a welcome dollop of cash to stem the wounds inflicted by an ill- judged benchmarking exercise, which has seen prison staff cut by a fifth since 2010 and the loss of many experienced officers on whom stability in prison often depends. Of course prisons can use 400 new boots on the landings but a sustainable future surely needs proper long term resourcing not midyear handouts squeezed from the Treasury.

Recruiting personnel with a military background looks like an effort to recreate the past rather than the modern service we’ve been promised. Indeed the policy offers more than a nod to UKIP’s 2015 manifesto guarantee of a job offer in the police, prisons or border force for anyone who has served in the Armed Forces for a minimum of 12 years.  Unlike Howard, who illustrated his priorities by inviting a victim of a serious crime to address the 1993 conference or Gove with his ex-offender, Ms Truss at least resisted the temptation to surround herself with soldiers.

After mixed signals from the MoJ, prison reform is, it seems, back on. We will have to wait a few weeks for a plan with the promise of legislation in the New Year. These will announce a “vision for prison reform to 2020 and beyond” and “a blueprint for the biggest overhaul of our prisons in a generation”.  But haven’t we had enough visions and blueprints? It's eight months since David Cameron promised the biggest shake-up in the way our prisons are run since the Victorian times, let alone a generation.

The White Paper will surely need to be a bit more – I think the civil service word is- granular. More plainly, what exactly will be done to solve the crisis in our prisons in the short, medium and long term?

Ms Truss used to favour contracting out all prisons to the private sector on a payment by results basis but today’s damning criticisms of Community Rehabilitation Companies by the Probation Inspectorate makes no case at all for further privatisation. But who knows?  In a Through the Gate scheme that does work, one of the companies, Interserve,  announced today they have recruited Ian Mulholland the former Director of Public Prisons. Mulholland is apparently looking forward to helping grow the business: “The CRCs are our foothold in justice, if we are seen as the best provider we will strengthen our chances of winning more business”. Setting aside the supposed limitations on that particular revolving door, perhaps he knows something we don’t?  

Making Prisons Safer

 

  Yesterday’s Ombudsman’s report on homicides in prison is yet another indictment of the state of the prison system. Although thankfully still rare, the increase in what Nigel Newcomen calls  these chilling occurrences  -from an average of 1.6 killings  per year from 2003-12 to 4.3 per year since then- is more evidence, if it were needed, that prisons are in very urgent need of attention. Yet as with the 7 day NHS, the government has looked to be promising grandiose and expansive reforms when there are scarcely resources to do the basics properly.

The government’s response to the crisis in prison safety seems to be that there are no easy solutions.  But it is becoming increasingly obvious that there is one truth that dare not speak its name: that in many prisons, there are simply not enough staff to do the job.

It’s true that staffing may still be generous compared to many countries but following cost cutting exercises, numbers are considerably lower than 2010. To quote the UN “needless to say, management of a prison becomes more difficult with lower ratios of staff to prisoners, as the risk of incident increases.’  

In England and Wales, while this is increasingly being said –by the Howard League, the Labour Party and most recently the Samaritans, the government are reluctant to agree. Last week Justice Minister Sam Gyimah told a Parliamentary debate on Prison safety that “staffing levels are not the main problem”.  Yet on the same day Glen Parva YOI's  Governor was telling an inquest that she has too few resources to protect young prisoners from the risks of bullying, suicide and self -harm.

The Government have promised a plan in the autumn, belatedly recognising that their flagship rehabilitation reforms cannot possibly take hold when staff and prisoners are unsafe. One thing it won’t  include is Lord Harris’s recommendation that specialist Custody and Rehabilitation Officers take responsibility for the overall well-being of young adults in prison- unceremoniously rejected, presumably  on cost grounds. But what should it say?

First it should commit to re-doing the benchmarking that has led to inadequate staff numbers. Just as  the National Institute for Health and Care Excellence (NICE) were asked after the Mid Staffs Hospital disaster to look at safe staffing for nursing in adult inpatient wards in acute hospitals, an independent body should do so in respect of prisons. With an advisory board comprising personnel at all levels and ex prisoners, it should look seriously at how many staff are required to meet the expectations set by Prison Inspectors and the various recommendations made by them and the Ombudsman. Newcomen's latest report for example called for the careful management of prisoners known to be at risk from others and rigorous cell searching to minimise the availability of weapons. Whatever Gyimiah thinks, both need staff.  Benchmarking Two should be completed by Easter.

Second, some of the capital resources intended to build new prisons should be converted to revenue to pay for the more staff that will be undoubtedly be required. There is growing scepticism that the £1.3 billion secured from the Treasury for new prisons is capable of being spent by 2020. Some of it should be used to repair the current arrangements rather than establishing new ones .

Third, to provide a breathing space for the prison service, a range of measures should be introduced to cut numbers in prison. How about a stronger presumption that sentences of up to 2 years should be suspended? Or relaxing criteria for temporary release and cracking on with plans to pilot tagging and problem solving courts?

Only with a short term plan like this, will the prison service be in a position to approach the reform agenda promised by the last government and half-heartedly at least confirmed by the current one.   I was recently told of a Governing Governor in a local prison having to come in over the weekend to ensure that prisoners received their meals. Good for him for putting his shoulder to the wheel. Somehow,  I don’t think it’s what Governor autonomy is supposed to add up to.  

Don't Despair on Prison Reform ...Just Yet

On 19^th July, five days after her appointment, Justice Secretary Liz Truss said she was clear that the vital work of prison reform will continue "at pace". Seven weeks in, the Guardian’s take on her evidence to the Justice Committee this morning is that the prison reform plans are on hold.

The headline exaggerates a bit because as Ms Truss admitted there is no plan to put on hold. For all his rhetorical flourish, Michael Gove appears to have neglected to create much in the way of concrete proposals for improving prisons let alone a timetable for implementing them. Beyond slogans about giving governors’ more freedom there is no legacy. If we didn’t realise it already we now know that on prison reform (and much else besides), we’ve been conned.

Enter Ms Truss, whose business background may have alerted her antennae to grandiose and ideological schemes floating free from reality. Her instinct, much on display before the Justice Committee is that of the management accountant she was, a profession who, says Wikipedia, “use the provisions of accounting information in order to better inform themselves before they decide matters within their organizations, which aids their management and performance of control functions”. It’s a world away from Gove’s talk of redemption. But it might actually do something.

For what Ms Truss will have realised is that the prison system is in the midst of an operational crisis, while her predecessor did not acknowledge it was a system let alone one  in crisis. Given the urgency of the problems, her approach might be what’s needed; risking another analogy , something closer to a plumber rather than architect. Rightly she said to the committee that making prisons safer is her most pressing priority. If prisoners and staff are afraid or threatened by violence, talk of reform means little.

Where she disappointed was in her unwillingness to countenance a role in reducing the numbers in prison. While ruling out arbitrary reductions, she might well be attracted by rational, planned and evidence based reductions if they can be shown to bring about the outcomes she wants .What we’ll need from her is a bit of creative accountancy so that demand for prison places falls. She will find levers in the system to help her with that if she wants, not least in a revisiting of the probation system which, like much else, she is currently looking at.  So don’t despair. .. just yet. 

A Few Questions for the New Justice Secretary

On Tuesday, Justice Secretary Liz Truss and her new team face oral questions in the House of Commons and the following day Ms Truss is due to answer questions from the Justice Committee about her priorities in the new post.  Here are four criminal justice topics that MPs should ask about.

First, does Ms Truss still believe, as she did in 2011, that prisons should be tough, unpleasant and uncomfortable places? Philip Davies MP will hope so but other MP’s will expect a more constructive tone from the minister leading (what was at least) the Government’s flagship policy of prison reform. When can we expect a White paper/Draft Bill and what will it cover? In the meantime what is Ms Truss planning to do to increase safety and reduce violence in prisons and ensure they are adequately staffed? The committee should also probe on the plans for separate units for jihadi prisoners due to start in 4 category A prisons next year, and her thinking on tariff expired IPP cases.  

Second, Ms Truss has reportedly been less than keen on problem solving courts (but was more positive on the Today Programme on 22 August). MPs should ask if and when pilots will start, where they will take place and what exactly they will be piloting.   They should also try to find out if, like Mr Gove, she sees these are a vehicle for reducing imprisonment, particularly for women. Back in 2011, Ms Truss wanted to reverse the tide of soft justice. But, as a judge might put it “tempora mutantur". 

Third, has Ms Truss made any assessment of the Transforming Rehabilitation reforms? Her Permanent Secretary told the Public Accounts Committee in July he was only 60% confident that they were working. What sort of figure would she put on it? And what more can she say about the various electronic tagging pilots that are due to get off the ground in the autumn.  One of the areas Gove’s team were exploring is where electronic monitoring might enable offenders to be given a community sentence where at present they would be sent to custody. Is this still on the cards along with the greater use of electronically monitored release on temporary licence?

Finally on youth justice, what’s happened to Charlie Taylor’s review? Can Ms Truss be drawn on the likelihood of the new generation of secure schools outlined in February’s interim report or changes to courts and sentencing which Taylor’s been looking at since? Is the YJB, as is widely expected, heading for the exit door and what’s the latest on the sale of G4S’s Secure Training Centres?

There's lots more of course but preparing for these topics should give Ms Truss a busy enough weekend.  

  

From YJB to RJB?

This week's’ Justice Committee report on Restorative Justice (RJ) has a familiar ring to it. It’s positive about the impact which RJ can have both on people who suffer from criminal harm and those who cause it. It’s cautiously optimistic too about RJ’s cost effectiveness, while rightly recognising the need for investment in properly trained facilitators, particularly for work with more serious and difficult cases.

Yet, as the Criminal Justice Alliance tweeted yesterday, the report is something of a fudge.  The Committee’s conclusion - that it is too soon to introduce a legislative right to access restorative justice services but such a goal is laudable and should be actively worked towards- is hardly a call to storm the winter palace of conventional criminal justice and bring about a restorative revolution. It looks set to maintain RJ’s place at the margins rather than propel it to the heart of responses to lawbreaking.

Yes, there has been some growth in the availability of RJ in recent years although the whole area is something of a data free zone. How many cases are dealt with restoratively each year? Hundreds, thousands, tens of thousands? We simply don’t know and while there are all sorts of definitional problems making measurement difficult, getting a handle on what’s happening calls for some stronger national leadership.  This should build on the good work of the Restorative Justice Council, who have at least sought to map the organisations offering RJ.  With the Youth Justice Board seemingly on the way out, is it time for a Restorative Justice Board to drive RJ forward nationally for adults and children?

Locally some clearer decisions should be made about who is responsible for commissioning and providing RJ. Is it primarily a voluntary sector activity or should police, probation and prisons be expected to offer it ?  A study of European jurisdictions found that RJ options are used by prosecutors and by courts in a wide variety of cases. In Germany prosecutors can dismiss charges if the accused makes a serious attempt to reach a mediated agreement with the aggrieved person by trying to make reparation for his offence, in full or in part. Courts can mitigate or even dispense with punishment if the perpetrator has in an effort to achieve mediation with the aggrieved party, completely or substantially made restitution for his act or earnestly strived to make restitution. About half of victim offender mediation cases in Germany relate to a violent offence.

Back in 2012, the Ministry of Justice though committed to making more use of RJ did not want to do so in a way that was over prescriptive or places unnecessary restrictions or burdens upon the system. While a series of Action Plans and funding for PCC's  have helped to grow RJ since then, the goals of making restorative justice available to victims at every stage of the criminal justice system and in every location will never be achieved without a stronger approach.

There may be opportunities for a step change in RJ in the coming months- in problem solving courts, reform prisons or a new youth justice system (if the Taylor report sees the light of day). But they won’t be taken if its business as usual.    

Reflections on Prison Overcrowding

How best to eliminate the scourge of overcrowding in the world’s prisons? Two countries much in the news are promising different solutions with Turkey planning to release 38,000 "ordinary" criminals (if only to make room for alleged coup plotters) and the Philippines substantially increasing its capacity to reduce the squalor so shockingly revealed at Quezon City jail.

Neither approach generally finds favour with prison reformers; amnesties are seen to erode the rule of law and encourage corruption;  prison construction uses limited resources better spent in other ways and risks the induced demand effect:“if you build it, they will fill it”.

More favoured strategies include systematic efforts to reduce the use of pretrial detention and the development of alternatives to prison sentences.  There is much to be said for both of these. Many of the most congested prisons are those holding large numbers of suspects awaiting trial. The measures outlined in PRI’s recent Ten Point Plan – including diversion of minor cases, time limits for court cases, pretrial release options and effective file management- could all help to ease demand for prison places: and the development of sentencing options such as probation or community service which place burdens on offenders without depriving them of their freedom can help ensure that petty offenders at least are kept out of jail. 

While both these approaches are necessary – and in certain circumstances amnesties and prison building have a role to play too- they are not sufficient. This is particularly true in Africa where prison reform has struggled to have an impact. On that continent, overcrowding is little short of a humanitarian disaster.  Some countries which have reduced the use of pre-trial detention – Malawi is an example- still have grossly overcrowded prisons albeit on the sentenced rather than remand side. Others which have implemented community service orders have seen limited impact on prison populations.

On a recent visit to Uganda, I saw a thousand plus prisoners in Jinja’s pre- trial prison, built for 300. We were told that 106 were charged with petty offences but the vast majority had allegedly committed serious crimes such as murder, rape and robbery. Improved pre-trial justice would bring them to trial quickly but those convicted would face long sentences, generally served in full. Alternative sanctions as currently constituted might divert the petty offenders from the penal system but even if the law allowed it, would not be accepted by courts or the public as an adequate response to more serious criminality.  

A much more robust form of alternative sentencing has been developed in neighbouring Rwanda. In the aftermath of the 1994 genocide, conventional legal responses were simply impractical given the scale and gravity of the problems to resolve. Alongside the creation of Gacaca community courts, an innovative form of Travail d’Interet General (TIG)  was introduced - an intensive community service order undertaken as part of a prison sentence. Rather than stay at home and do unpaid work for a few hours a day which is the model of community service in place in the rest of East Africa,  the genocidaires - so-called tigistes- were based in camps doing a full working day six days a week. This enabled substantial infrastructure projects to be completed- including construction of roads, homes for vulnerable people (including genocide survivors) and school dormitories. The Rwandan government have claimed that up to 2013 more than $50 million worth of work had been done Prisoners have been released much earlier than they would have been and have learned skills to help them resettle. The prison population has been stable for the last six years.

The Rwanda model has not been without critics, in respect of living conditions, health and safety concerns and ability of tigistes to stay in contact with families- in short whether it is in fact a second prison or form of forced labour. The tigistes seem to prefer it to spending longer in prison; and the more tangible community benefits make it more appealing to courts and public alike

Rwanda’s 2012 Penal Code extended TIG to all offenders who have committed an offence which is punishable by a term of imprisonment of up to 5 years.  The limit  is two years in Uganda and lower is several countries.

Policies developed after Rwanda’s exceptional horrors may not seem relevant to other contexts. But by showing that people guilty of some of the worst crimes can be punished in part at least through reparation in the community , the TIG model offers the prospect that increased development need not always entail greatly increased imprisonment. As long as the rights of participants are respected, it could be tested as a way of  replacing or shortening prison sentences and contributing to major public works elsewhere in Africa and beyond.