For God's Sake George, Take a Look at Criminal Justice Policy

Earlier this week the Ministry of Justice greeted the latest criminal justice statistics by celebrating record levels of prison sentences given to sex offenders in 2014. Their press release not only welcomed the harsher punishments given to the 6000 of these offenders sentenced last year. The Government seemed keen to publicise the fact that prison sentences for all offenders have been getting longer and that the proportion of serious offences given a community sentence has declined. They see as positive too the fall in the use of so-called out of court disposals- police cautions and warnings usually given for petty offences.

The consequences of the last of these trends is being shown daily in the Howard League’s excellent campaign to end the criminal courts charge. Not only are the Howard League highlighting the injustice and absurdity of imposing additional financial penalties on defendants whose criminality is born of poverty and desperation but raising the question on why on earth some of these petty offences are being brought to court at all. Just as most of the public came to see it as crazy to ban prisoners from receiving books through the post, so surely will a majority eventually accept that thefts of small amounts of food, begging,or drunkenness cry out for a problem solving response rather than a punitive one.

The use of courts for these kind of misdemeanours seems part of a broader pattern of criminalisation. The criminal statistics reveal an increase in the numbers of summary offences – the least serious- being prosecuted and sentenced. This is apparently due mainly to an increase in speed limit, vehicle insurance and TV licence offences. Other non-motoring summary offences that continued to rise during the year and the last decade include littering and truancy.

Separately this week we learned more details of the 16,000 parents prosecuted for failing to secure their children’s attendance at school, 18 of whom (ten mothers) ended up in prison. This week also saw an expensive Old Bailey trial resulting in a couple fined £1000 for outraging public decency; the judge blamed the defendants for maintaining their innocence but could easily have criticised the CPS for continuing a prosecution which while of significant interest to the public was hardly in the public interest.

In a time of stretched resources, it is odd to say the least that more and more cases are being brought before the courts unnecessarily.  A rational approach would surely see everything being done to deal with cases at the lowest and cheapest level in the system. This is what is happening in the health system where GP’s are being incentivised to reduce pressure on hospital admissions. Its what happens in the criminal justice systems of many European countries where prosecutors can settle many more cases than happens here. 

The one area in criminal justice where a sensible use of diversion  has been happening is in respect of young offenders. Figures out today show continuing reductions in the numbers of under 18’s in custody. In large part that’s because cases are diverted wherever possible by the police, and where cases go to court a wide range of alternatives are proposed to the courts and a large proportion imposed. This is precisely what’s needed for defendants of all ages.

Last week civil servants were asked to meet a public sector efficiency challenge by proposing ideas for improving public services or save money. Categories of reform include reducing bureaucracy, improving customer services, staffing and making services work more effectively together. Keeping cases out of the court system as far as possible would meet all of these objectives and more.

The Chancellor's initiative asks respondents not to “use any profanity or abuse in your responses as it will automatically disqualify your idea”.  But for God’s sake, George  have a look at criminal justice and penal policy. 

Fine Words Better No Prisons

Prison reformers are almost by definition optimists but the expectation placed in Michael Gove by those of us who want to see a better prison system seems to be in danger of becoming distinctly Pollyannaish.

Yes he (or more likely George Osborne) has knocked the absurd Secure College on the head.  And his talk about prisoners as assets rather than liabilities, and the importance of redemption mark a welcome shift in philosophy from his predecessor’s obsessions with making prisons cheaper and less comfortable. Gove’s gone out of his way to praise the Prison Service and today he floated a number of ideas for improving its effectiveness.

Some of these were interesting, though reheated. Enabling prisoners to earn release through involvement in education, giving prison governors more autonomy, and selling Victorian prisons to fund a modern estate were all proposed in the 2008 so-called Conservative Green Paper Prisons with a Purpose. Gove made clear these are ideas to which he is attracted rather than firm policies. Some may be sensible, others less so- all are technically difficult to implement. I’m not sure I’d like to stay in prison longer because a Governor has not provided the opportunities for me to undertake the courses need to qualify for early release. The POA and others are surely right to be a little sceptical. We all heard Ken Clarke five years ago promising that prisons would be places “of education,hard work and change”.  To coin a phrase, "Fine words better no prisons".

It’s what Gove didn’t say that is the problem. It’s easy to point at the disgusting conditions at Pentonville as emblematic of the challenges facing jails but that’s only a part of it. As the Justice Committee , HMIP and Lord Harris have pointed out a significant number of prisons have been operating at staffing levels below what is necessary to maintain reasonable, safe and rehabilitative regimes. With more cuts looming what is Gove planning to do?  How can he in good faith promise “an end to the idleness and futility of so many prisoners’ days” when he knows he will have significantly fewer resources at his disposal.

The obvious measure is to cut prison numbers or as Nick Hardwick put it “match the demand for custodial services to the resources available”.  As Gove will know by now, this can’t be achieved through tougher alternatives alone. Cutting sentence lengths is the most direct way of doing so but perhaps unsurprisingly there was nothing from Gove on this.  Reviving interest in Justice Reinvestment in which local agencies benefit from savings that accrue from reductions in prison admissions might be more palatable. But there was no reference to that either. Developing a more appropriate approach to young adults could also produce dividends in terms of reduced prison numbers just as it has with the under 18’s. But there was no mention of that and rumours are that the YJB may shortly be for the chop.

So despite his flowing rhetoric Gove's problem is more prosaic -not so much finding treasure in the heart of every man, but getting enough cash from the treasury to run a safe and decent system. Or shrinking the system so that it is.

Commercial Misjudgement?

In May, I raised concerns about an income generating scheme established by the Magistrates Association (MA) which involves private Community Rehabilitation Companies (CRC’s) investing in the MA Education and Research Network. I argued that the MA -which represents the 23,000 lay justices who deal with 90% of criminal cases in England and Wales- should not put itself in a position where the content of any guidance, information or advice it produces could be seen to be influenced by commercial considerations.

Yesterday the Network was officially launched at the Supreme Court. A brochure describing the plans for the Network does little to allay those concerns.

It is not a problem with research itself. The MA’s Royal Charter specifically permits the organisation to “promote or undertake study or research and disseminate the results of such research”. It is the invitation to become an affiliate of the Network which raises a potential conflict of interest for the MA.

Affiliates are offered- presumably in return for funding - a variety of benefits. These include:

* A conduit for valuable research information which may assist in the “development of affiliate businesses or organisations”

* Networking with other affiliates leading to information exchange, “helping to identify commercial trends”

*  The ability to commission additional research projects “and own the results” and

*   Opportunities to host seminars or functions in Association with the Network “to promote your organisation”.

I understand that at least two CRC’s have become affiliates. It is easy to see why they and other private sector organisations might have an interest in doing so. Only five years ago, the House of Commons Justice Select Committee reported that “the Magistrates’ Association raised concerns about the impact that introducing a profit motive for reducing re-offending may have on meeting the core aims of the criminal justice system”. The MA’s then Chair had given evidence that sentencers must have confidence that the sentence will be properly and effectively delivered and they “did not believe it should be driven by profit”.  What better way of winning round a sceptical stakeholder than helping to fill a hole in their finances?  

Moreover in order to help ensure a prosperous shape for future criminal justice developments, under what better auspices could private companies showcase their technological innovations – the focus of the Network’s first year’s work?

The MA will no doubt claim that the research undertaken through the Network will be independent and rigorous and will test the claims for these and other products, programmes and measures. Indeed, the Network has an impeccable academic consultant.  She will presumably ensure that the Network’s research will in all cases be peer reviewed and published, (even when the results are “owned” by the commissioning affiliate). Otherwise we may be in in for the kind of controversy seen in the pharmaceutical industry about access to data and research producing negative as well as positive outcomes.

The MA will claim too that the Network is an independent company and it is- a wholly owned subsidiary of the MA set up, in part at least, to raise funds for the association.  The Network is chaired by a former MA Chair and the Company Secretary is the current MA Chief Executive.

The objects for which the Magistrates Association is established and incorporated are to promote the sound administration of the law, “including, but not restricted to educating and instructing Magistrates and others in the law, the administration of justice, the treatment of offenders and the prevention of crime”.  Its Charter makes clear that the income and property of the Association, however derived, shall be applied solely towards the promotion of those objects.

These provisions may provide the legal wriggle room for the arrangements that have been put in place for the Network. But one is left wondering if the MA has really considered that it looks to be lending its name to the expansion of business opportunities for private companies in criminal justice?  

Unchanging Prisons, Losing Lives?

Changing Prisons, Saving Lives, the report of the independent review of self- inflicted deaths by young adults in custody gives a refreshingly honest if depressing account of the realities of prison. It rightly damns “grim environments, bleak and demoralising to the spirit”, questioning whether penal establishments need to be as harsh and comfortless as young people find them to be.

Rightly the report argues that life in prison should approximate as closely as possible the positive aspects of life in the community but it confirms the yawning gap (illustrated in most Inspection reports)  between what is supposed to happen and what actually does. In one symbolic respect, even what Prison Instructions require - that prisoners are afforded a minimum of 30 minutes in the open air daily- fails to meet the best known  international norm of an hour’s fresh air a day -something which is managed in many much less well-resourced prison systems around the world.

So what are the prospects of Harris's 108 recommendations being accepted and then implemented? Originally the intention was apparently to publish a government response alongside the review report but its easy to see why that option was ditched. At least one of the MoJ ministers Dominic Raab wrote in 2011 about the unwelcome belief that prisoners should be treated in prison in a way that reflects the normal life of freedom that all citizens generally enjoy. He and his co-authors of were “not ashamed to say that prisons should be tough, unpleasant and uncomfortable places”. If Gove or Andrew Selous shares those views, they would have been given more than a pause for thought by the recommendation that following each self-inflicted death in custody, the Minister for Prisons should personally phone the family of the prisoner who has died to express their condolences on behalf of the State and to promise that a full and thorough investigation will take place, and that any lessons from the death will be studied and acted upon to avoid similar deaths in the future.

Even if Gove took a more sympathetic stance, many of the recommendations have pound signs all over them and with the MoJ looking to find another £250 million savings this year, the calls for more and better trained staff will be seen as unaffordable.  The report is right to say of course that a reduction in the prison population will enable prisons to provide better conditions and regimes. But Gove is probably aware of what happened to Kenneth Clarke when he sought to bring the prison population down. He went down with it.  The MoJ will consider the recommendations “carefully and respond to the report in the autumn”.

What’s the likely outcome then? In a chapter in a forthcoming book on the management of change in criminal justice, I look at the impact of three previous inquiries- Woolf’s Strangeways report, Lord Keith’s inquiry into the murder of Zahid Mubarak  and the Corston review of women’s imprisonment. The conclusion was that they all resulted in important improvement but in each case the most important recommendations were not accepted. In the case of Woolf , the government refused to place strict  limitations on prison overcrowding; in Keith , the prison service never properly reviewed whether the advantages of holding young offenders on the same wing as adult offenders outweigh the disadvantages; and  Corston’s radical vision for small prison units for 20-30 women  was never taken up . Nor was her call for prison to be reserved for serious and violent offenders who pose a threat to the public. I argued that without these central recommendations, the chance of radical change was scuppered.

If the Harris review goes the same way, we may well see action on many of the welcome technical recommendations for preventing and reducing self- harm and suicide and even some changes to inspection and monitoring. But the two central arguments may not find favour; first that more vulnerable young adults should be kept out of prison and second that we need a new statement of purpose emphasising the centrality of rehabilitation. Without these, it will be a case of unchanging prisons and losing lives.

Refreshing But Not Satisfying

It’s refreshing to hear a mainstream politician call for a reduction in prison numbers. Lib Dem leadership candidate Norman Lamb makes a powerful case in The Huffington Post that the Ministry of Justice should set a target of halving the prison population by 2025.  He wants the billion pound plus savings used to fund mental health and drug treatment and other community based measures which can better turn people’s lives round than do spells of imprisonment. The call echoes that made in the  2010 report on Justice Reinvestment by the House of Commons Justice Select Committee chaired by Lamb’s former colleague Sir Alan Beith.

One question the Lib Dems need to answer is why they had relatively little positive influence on penal policy during the Coalition years. It’s true that the prison population stayed relatively stable -there were a few hundred more prisoners when the Lib Dems left office in May than when they took it in 2010. On the credit side, Lamb himself raised the priority given to diverting defendants with mental health problems out of the courts and Simon Hughes developed some constructive resettlement initiatives in women’s prisons. But the prison system as a whole is in a much more parlous state through reckless cost-cutting. Inexplicably, the Lib Dems were enthusiasts for the Secure College for juveniles and failed to act to prevent either the breakup of the probation service, or the introduction of the iniquitous court charge which is causing increasing concern among magistrates up and down the country.   

Things would have been worse without us will be the familiar Lib Dem refrain; but one inconvenient truth about today’s intervention is that radical penal reform is unlikely to be a red line  in future coalition negotiations, should the Lib Dem Lamb lay down with the Tory or Labour lion.

A further truth is that, hugely worthwhile reforms as they are, strengthening community based alternatives  and introducing presumptions against  short prison terms will have only a marginal impact on the prison population on any one day. At the end of March 2015, prisoners serving sentences of 12 months or under comprised fewer than 7,000 out of the 85,000 people behind bars. Take all of them out and you can reduce your prison capacity and costs by 8% at most.

 Short sentenced prisoners of course represent a much higher proportion of all those who go in and out of prison during the course of a year- of the 78,000 received into prison to serve a sentence in 2014, 43,000 were doing a year or less. It’s this group that Lamb may have in his sights and could plausibly aim to halve in number. But achieving the objective would not free up the resources on the scale he’d like and we all need.

To do that he’d need to pledge to cut sentence lengths. There’s a strong case for doing so - they are higher than in other Western European countries – and of limited penological value. But politically it’s become a no go area to call for milder sanctions.

Lamb argues that the Lib Dems  “will never by afraid of radical evidence-based policies to improve people's lives and keep the public safe - and a rallying cry to reduce the prison population will be a key part of that”.  If he’s true to his word he should take a look not just at how many people go to prison but how long they stay there.  

Stupid Cases

Back in 2001, I ran a campaign called Rethinking Crime and Punishment which aimed to raise the level of public debate about prison and alternatives. I'm not sure what impact it made, as by the time the main work finished in 2005, the prison population in England and Wales had increased by 17% (from 65,000 to 76,000). But of course without it , prison numbers could have been higher still.......

During the project, I started to compile a dossier of press reports of what seemed to me the worst examples of prison being used inappropriately. I was reminded of it by last week’s jailing of Gemma Wale for indulging in noisy sex and today’s failed appeal by naked rambler Stephen Gough. I found the file easily enough, saved as “Stupid Cases”.

Both Ms Wale and Mr Gough have breached court orders and failing to comply with rulings was a common feature of the stupid cases from the early 2000's. There were Norfolk grandparents given 28 days imprisonment after pleading guilty to cutting down a hedge in breach of a civil court injunction. (54 year old Marilyn Girling was held at Highpoint prison alongside Moors murderer Myra Hindley). Another woman Samantha Richards served 3 months for refusing to take down a fence placing herself in contempt of court.

There were several mothers sent to jail for failing to ensure their children attended school. One,a pregnant mother of an 11 year old truant, sentenced to 28 days, had her appeal turned down on Christmas Eve 2002. (Her husband was fined but not threatened with prison).  .

There were plenty of cases where people had acted foolishly and faced paying a price heavier than that imposed by the courts. Would a community punishment not have been possible for the (soon to be ex-) head teacher who received 3 months after pleading guilty to forging SATS papers at two primary schools; or a staff member who admitted stealing exam papers from the school where she worked and showing them in advance to candidates? Or even the football fan who faced a six year stadium ban and received 4 months inside for running on the pitch and taunting the Aston Villa goalkeeper?

The dossier included hoaxers – the German trucker who admitted wasting police time after joking to a channel tunnel official that he was carrying TNT (28 days); entrepreneurs - John Collison who collected lost golf balls and sold them on (6 months) and geeks – an obsessive who made £50,000 worth of telephone calls for free to play computer games (2 months).

Some of the cases had a comical edge- the cannabis grower jailed after declaring illicit earnings to the tax man. Others were tragic; the mother jailed for drunken driving   after an accident which saw her daughter killed.” 

Several of the cases were successfully appealed but all served some time in prison. For Collison the experience was terrifying.  He told a paper that he had to strip off and stand naked while an officer took his personal belongings -just the sort of behaviour that has landed Mr Gough in so much trouble.

Finding an appropriate response to these kind of cases is not always easy, particularly where the court considers the offender has wilfully refused to fall into line or where a wider example is seen to be needed. I discontinued my dossier, but I am sure there are still plenty of these stupid cases. As with  Wale and Gough , courts surely need to take a step back to gain some perspective and sense of proportion about what they are doing. 

In the Christmas Eve truancy case in 2002, the Judge said that   “the magistrates had to pass a prison sentence because this matter had become so serious. They also felt a message needed to be sent to parents and children as to the importance of children attending school”. One can argue about the seriousness of all of these matters but risks arise once courts start to send out messages. Their decisions can  look as strange as those made by the people in the dock.  

Private Troubles and Public Issues

In 2013, a report I co-authored for the World Bank drew attention to the impact of a profit-making dynamic in prisons on a country’s wider political and judicial system. “Prison privatisation has given rise to examples of corruption among politicians, prison officials and even judges in the form of the Kids for Cash scandal in the USA”. 

Fortunately although standards of probity in British public life are generally very high, maintaining them requires equally high levels of transparency about potential conflicts of interest. Just before the election, Parliament’s Public Accounts Committee criticised the Ministry of Justice for mishandling an entirely foreseeable conflict of interest in its appointment of the Chief Inspector of Probation. He is married to the Deputy Managing Director of Sodexo, the business that bid for, and ended up winning, six out of 21 contracts to run Community Rehabilitation Companies.

There has never been a suggestion that the Chief Inspector behaved or would have behaved, improperly but close connections between public bodies and profit making businesses always require close scrutiny, not only because they may lead to impropriety but because they might be seen to run a risk of doing so. Public confidence in many institutions seems at a low ebb. Transparency about links with private sector organisations are particularly important given the recent serious lapses on the part of two private companies involved in the criminal justice system. In the wake of the G4S and Serco overcharging scandal, the PAC found the ethical standards of contractors had been found wanting and " a culture of revenue- and profit-driven performance incentives has too often been misaligned with the needs of the public who fund and depend on these services.” But even when operating properly,directors of private companies must act in the way they consider would be most likely to promote the success of the company, in contrast, say, to civil servants who are required to place the obligations of public service above personal interests.   

It is concern about how things might appear rather than risks of corruption that have alarmed a number of current and former JP’s  about the burgeoning financial relationship between the  Magistrates Association (MA) and a number of private sector  Community Rehabilitation Companies (CRC's).

The MA is a charity operating under Royal Charter which represents the vast majority of the 22,000 JP’s in England and Wales. As part of its income generation strategy, the MA has set up an Education and Research Network to be made up of organisations “working within and around the justice system”. According to the latest issue of The Magistrate Magazine, “we already have five founding affiliate organisations on board”. At least two of these affiliate organisations are CRC's. According to one of the members of the Board who oversees the network, affiliate organisations have contributed up to £10,000 to join. In return they will enjoy the fruits of the research which is commissioned, with any money left over helping to fill a £50,000 gap in the MA’s budget. CRC's and other organisations who want to become Founding Affiliates have until 30th June to apply. 

What’s the problem some might ask? Surely this is simply an entrepreneurial effort to add to the body of knowledge about the workings of the criminal justice system while strengthening one of its key stakeholders. What happens in court and the decision-making of magistrates are relatively under researched areas where new information could be of considerable public benefit.

The problem is not about the work that the Network might produce, although there must be doubt about whether it can both research high quality studies and return much of a profit to the MA. It is rather that the investment by private companies gives an appearance that improper influence might be being sought. CRC's are controversial bodies, the outcome of a highly contested process of privatisation. Labour's election manifesto referred to the reckless privatisation of probation, meaning dangerous offenders are more likely to be monitored by companies with no track record of success, putting public safety at risk. 

The most recent inspection report about the Transforming Rehabilitation changes that created the CRC's found signs of developing tensions with the National Probation Service "as managers considered what they were actually contracted to do and entitled to receive, rather than what they had traditionally done". In this unsettled context, the CRC's will be looking for all the friends they can find.

The Guide to Judicial Conduct advises judges to take care in considering whether, and if so to what extent, their name and title should be associated with an appeal for funds, even for a charitable organisation. “It could amount to an inappropriate use of judicial prestige in support of the organisation and may also be seen as creating a sense of obligation to donors”.  This is something that Lady Justice Hallett who sits on the Network Board will no doubt have considered. The Guidance does make clear that “there will be occasions, for example in the case of charities supporting the work of the Courts, where the objection would not apply”. But the vexed nature of the CRC’s, and the concern which their owners will understandably have to enhance their reputation should argue for caution on the part of the judiciary.

From the Magistrates side, the MA’s activities include the provision of information and advice to magistrates, developing guidance to improve the delivery of justice in the courts and responding to proposals which affect the delivery of justice. They cannot be put in a position where the content of that guidance, information and advice could be seen to be influenced by commercial considerations.

It is interesting that the Senior Presiding Judge has issued guidance about liaison between providers of probation services and sentencers, emphasising that it is the National Probation Service (NPS) who have that responsibility and not the CRC’s. It is not clear whether channelling communication through the remaining public sector part of the probation service is a matter of administrative convenience or of ethical propriety. It is perhaps worth the Magistrates Association considering both dimensions as they move forward with their new initiative.