Contemporary Dilemmas in Criminal Justice

Did you know that in the early 19^th century, an ancestor of former Attorney General Dominic Grieve MP was transported to Botany Bay (for a theft he probably didn’t commit), where through hard work and enterprise he started to accumulate the family fortune? Or that David Davis MP has brought a case to the European Court of Justice in Luxembourg while simultaneously campaigning for the UK to leave the court’s jurisdiction?  Or that one of the suspects acquitted of involvement in planning the 7/7 terror attacks in London now teaches citizenship to new arrivals in the UK?

I do, thanks to an excellent conference organised by the Oxford Centre for Criminology yesterday to celebrate their 50^th anniversary. Anecdotes apart, three important themes emerged from the day’s deliberations on contemporary dilemmas in criminal justice.

First, justice is in trouble. At the international level there are growing questions over the effectiveness of mechanisms for holding the powerful to account for grave crimes after the dismissal of Kenyan cases at the ICC. Last year also saw an increasing resort to the death penalty- Clive Stafford Smith told us that Pakistan currently has 8,262 prisoners on what is the world’s largest death row.

Domestically, criminal justice is, in the words of one participant, running on fumes and goodwill. Grieve revealed that without continuing falls in crime during his time in office, the system would have collapsed. One consequence of resource pressures on prosecutors, courts and lawyers is a heightened risk of miscarriages of justice.

Second, despite that fall in crime, law enforcement and justice agencies are facing new sets of challenges which existing ways of working look increasingly ill- suited to meet. Whether investigating fraud and cybercrime or responding to growing number of allegations of sexual offences - likely to multiply during the Goddard review- new methods are needed which are better attuned to the private and complex nature of much of this activity. More police on the beat- the favoured political refrain - is not going to crack it.  The overlap between illegal migration and criminal justice also presents new dilemmas for policy and practice.

As for terrorism, serious concerns were raised about the criminal and civil law response to suspects which were described as lacking coherence, rationality and legitimacy. While ex -Met chief Lord Ian Blair  did warn that further atrocities –thus far thankfully but sometimes narrowly avoided –could herald a yet  more draconian regime,  the Conference heard powerful arguments for refocussing  the law  relating to the preparation of acts of terrorism, the use of secret evidence and the role and accountability of the security services.

The third theme to emerge was that paradoxically perhaps, there may be a window for constructive and potentially radical criminal justice reform. Grieve said that Michael Gove’s retreat on legal aid reform means that reducing prison numbers is the only option for balancing the justice budget. That is clearly not the only reason for seeking to cut the prison population. Felicity Gerry QC denounced the whole system as “rubbish” at dealing with vulnerable defendants, arguing for fundamental change in how criminality by women is defined and dealt with. The conference heard proposals to strip magistrates of their powers to imprison, require courts to consider family impact statements prior to sentencing and strengthen sentencing guidelines for women.

Could these and other reforms happen, not just in respect of women, but others in conflict with the law? The climate of political, public and media opinion may be more favourable than for some time and the loosening of central government control over criminal justice agencies may encourage innovation in England and Wales at least. 

Change whether at home or abroad will require both technical knowledge about what to do and the political will to do it. The first of these should receive a boost from the establishment of Oxford’s Global Criminal Justice hub which will develop a research agenda to inform future policy development. As for political will, this can be nurtured by the kind of advocacy, public debate and commitment to progressive reform that was evident throughout the day.   As Stafford- Smith exhorted us, “never apologise for helping countries to do the right thing”- not least our own.

 

The Problem with Problem Solving Justice

Last night former Chief Judge of New York Jonathan Lippman extolled the virtues of problem solving justice to a distinguished audience at the Royal Courts of Justice. In a lecture hosted by the Centre for Justice Innovation, Lippman explained how he and other judicial leaders had, over the last 20 years, encouraged courts not simply to process cases through the system but to find ways of addressing the underlying problems of addiction and unemployment. Business as usual had been  sending the revolving door of jail spinning out of control, but Lippman  described how the Midtown and Redhook Community Courts and a number of mental health and drug courts in the State  have combined help and punishment in order to offer defendants a chance to change the trajectory of their lives. The lecture was well received, introduced by the Lord Chief Justice and concluded by Justice Minister Caroline Dinenage.

Strangely, there was not a single mention of the fact that we’ve been here before. Back in the 2000’s David Blunkett, Lord Woolf and many others (myself included)  visited Redhook and returned enthused. The North Liverpool Community Justice Centre, modelled on Redhook was established in 2004 at a cost of £4 million. 13 Community justice courts were set up from Middlesborough to Merthyr Tydfil as were specialist Domestic Violence and Mental Health Courts. Of this experience there was, last night, not a word.

That is maybe because the initiatives did not work as well as was hoped. Unlike evaluations of American schemes, research found no evidence that the North Liverpool court had a positive impact on re-offending for any particular type of offender. Moreover, offenders given court orders at the court were more likely to breach the conditions of their order than the comparator group for England and Wales. North Liverpool Community Justice Centre closed in 2013. The problem solving approach elsewhere has struggled to be sustainable.

The minister said last night that a working group set up to examine models of problem-solving courts and advise on new pilots had completed its work . Hopefully the group will have looked closely at the UK experience and how the context differs from the US.  Relative lack of welfare provision and low thresholds for prosecution may mean some at least of the problems in American courts are more straightforward to fix than over here. More developed options for pre-court diversion may mean that the police or CPS are better agents of change in England and Wales than the courts. Culturally, judges and magistrates here may be more reluctant to get involved in the implementation of sentences (as opposed to their imposition) and unwilling to express the kind of emotion Judge Lippman described on seeing a changed offender at a "graduation" hearing. Maybe performance measures simply don't allow courts the opportunity to identify defendants' problems and arrange the required response from health and welfare services already under stress.

Yet the climate may be more propitious for problem courts this time round although money is much tighter than it was . The Centre for Justice Innovation is able to provide the kind of technical assistance which was lacking with the initiatives in the last decade. The Judiciary is leading a major modernisation programme in courts which provides, at least, a strong following wind.  

A 2009 Policy Exchange Report on Problem-Solving Justice in England and Wales was entitled Lasting Change or Passing Fad. If it’s to be the former, and I hope it is, the question is not why problem solving justice but how. It’s a question of which Ms Dinenage’s father Fred would have been proud.

Reform Prisons - An Elephant Giving Birth to a Mouse?

Fifteen years ago, Michael Gove jointly edited A Blue Tomorrow- a collection of essays subtitled New Visions for Modern Conservatives.  In the foreword, the editors attacked Tony Blair’s Labour government (freshly re- elected in a second landslide) for seeing “the answer to every problem in a new rule, restriction, quango, agency task force or diktat…, micro-managing problems in a manner which denies autonomy and contributes to greater chaos”.  Gove et al preferred much greater humility about the capacity of the state to provide solutions arguing for pluralism in the provision of public services and the devolution of power to the lowest accountable level. Innovation, they asserted "springs from respecting the individual, the quirky and the local".  

Today this particular vision has the penal system in its sights with a Prisons Bill, the centrepiece of the Queen’s speech and the announcement of six Reform Prisons as the icebreakers of a self- styled revolution.

Gove is not the only brain behind the operation. Nick Herbert’s 2008 “Green Paper” Prisons with a Purpose, recommended that public-sector prisons become "independent, fee-earning prison and rehabilitation trusts”, a direction that was developed in the Centre for Social Justice Report Locked up Potential in 2009. But Gove’s belief that institutions of all kinds flourish when liberated from the dead hand of central bureaucracy has given huge momentum to the idea of reforming prisons, which he has described as the most centralised and dirigiste area of public service he has seen.

For those who may be sceptical about the application of simple ideologies on complex institutional arrangements, there are three questions to ask about how exactly the Reform Prisons will differ from the rest .

First, will they be protected from population pressures in any way? At the end of April, all of the Reform Prisons were overcrowded bar Kirklevington Grange open prison. Coldingley, was only slightly overcrowded , its population at  104% of “Certified Normal accommodation”- the capacity which represents  the decent standard of accommodation that the Prison Service aspires to provide all prisoners. The population at Holme House was 116%, High Down 119%, Ranby 125% and Wandsworth 169%.

Although ministers dispute the extent of overcrowding and its impact on prisoners, Inspectors in their most recent reports on the reform prisons have few such doubts. HMIP said overcrowding at Wandsworth, combined with severe staff shortages, meant that almost every service was insufficient to meet the needs of the population. They found overcrowded cells at High Down which were were cramped, lacked furniture and contained inadequately screened toilets. At Ranby, staff in some house blocks appeared very busy with little time to talk to prisoners; and Holme House took prisoners on overcrowding drafts from other prisons. The first question therefore is whether it will be business as usual in terms of the numbers prisoners in the Reform Prisons or will they be insulated from some of the population pressures- something which would of course place greater strain on other parts of the system.

Second while it seems clear that governors will be given greater control over how their budget is spent, will it be increased? There are troubling signs that staffing levels are simply too low in some prisons. At Wandsworth, Inspectors said that  reductions in staff numbers had greatly reduced the capacity of officers to engage constructively with prisoners. At Coldingley, they found  broken furniture and equipment , inadequately screened toilets and windows that needed to be replaced. At Ranby prisoners had difficulty obtaining cleaning materials, clean clothes and clean bedding. The second question is how much additional budget will be given to the Reform Prisons.
There may be an argument for reallocating some of the hq resources to them if they are making less call upon central services. But more favourable resourcing will need to be taken into account in assessing changes in performance.   

Third, we know that the government plan to give unprecedented freedoms to Reform Prison governors, including financial and legal freedoms, whether to opt-out of national contracts; and operational freedoms over education, the prison regime, family visits, and partnerships to provide prison work and rehabilitation services. There's a strong case for concentrating more commissioning responsibility in the hands of governor and restoring to them greater control of what goes on in their establishment. But what will this mean in practice?

NOMS CEO Michael Spurr pondered a few months back whether Governor autonomy might include the ability to introduce conjugal visits. We don't yet know if Reform Prisons be able to pay staff more, disapply prison service instructions or make their own arrangements for resettling prisoners outside the existing contracts with Community Rehabilitation Companies. I suspect the answer to each of these questions may be no. Neither is the governors's autonomy likely to  extend to releasing prisoners early- something Gove favours and has been impressed by at the Military Corrective Centre.

The third and most fundamental question is therefore: if these kind of freedoms are in fact off limits, are Reform Prisons not an elephant that gives birth to a mouse?

Sentencing Remarks

   A fortnight ago, Prisons Minister Andrew Selous told the Justice Committee that "work on sentencing is ongoing this year, in terms of a consultation to which the Ministry of Justice has committed". Yesterday, in the course of answering an urgent question on violence in prison, Selous told the House of Commons that the Government "are currently consulting on sentencing issues".

But there seems to be nothing in the way of a formal consultation underway, at least in terms of an exercise that meets the principles on consultation that the Government launched in January.

There is a working group on problem solving courts involving the Lord Chief Justice and others, one of whose aims is “to encourage innovation in the use of judicial disposals and improve compliance with the orders of the court". Charlie Taylor’s review is also now looking at sentencing in the youth court- something the Sentencing Council, somewhat perversely, is also about to consult upon.

But unless I have missed something there is nothing along the lines of John Halliday's review of sentencing that took place in the early 2000’s. Selous’s colleague Dominic Raab is apparently holding a series of expert roundtables to look at the subject but to what end is not clear. He personally seems to favour a harsher approach but in view of the pressure on prisons and the MoJ budget, the scope for locking up more people for longer is as unaffordable as it is undesirable.

Assuming that ministers may be open to reforms that moderate our comparatively severe sanctioning response to crimes, what could they consider?  I have argued that punishment levels should be reduced for women, young adults and people with mental health problems, as well as the oldest offenders. I also suggested that the Sentencing Council be asked to scale down sentencing levels for crimes across the board.  But what other more specific measures could be put on the table? Here are five.

1. Scrap the plan to widen the scope for Attorney General References, the mechanism by which "unduly lenient" sentences can be increased. Numbers may be small but their effect is greater, pushing up the going rate for particular offences.  It’s true that the Conservative manifesto contained a proposal to enable a wider range of sentences to be challenged “to tackle those cases where judges get it wrong” but it’s surely no longer a priority.

2. Introduce the possibility of releasing non-violent offenders from prison after serving one third point of their sentence with the period up to the half way converted to community payback. This would ease pressure on the prisons while putting more work the way of Community Rehabilitation Companies whose expected volumes of work have not materialised.

3. Enable prisoners to earn earlier release through consistent engagement with education, treatment or work in prison. Justice Secretary Michael Gove is much taken with the Colchester Military Corrective Training Centre where the Commanding Officer has a great deal of discretion over release.

4. Pilot a scheme for prisoners with drug dependency problems to serve the final portion of the custodial part of their sentence in a residential rehabilitation centre.

5. Introduce a presumption of suspending sentences of less than 12 months – a proposal made by Nicky Padfield in the latest version of the Criminal Law Review.

Alongside these sentencing changes , moving forward with the agenda of devolving budgets to a more regional or local level could also introduce a positive new dynamic into the criminal justice process. If Sadiq Khan had to meet the costs of short prison sentences served by Londoners from his budget, he might well look hard to develop more in the way of measures which could reduce the need for their imposition.       

The Invisible Transformation

Back in January 2013, then Justice Secretary Chris Grayling was admirably clear about what he expected his “revolution in the way we manage offenders to achieve”. "My vision is very simple", he wrote . "When someone leaves prison, I want them already to have a mentor in place. I want them to be met at the prison gate, to have a place to live sorted out, to have a package of support set up, be it training or drug treatment or an employability course. I also want them to have someone they can turn to as a wise friend as they turn their lives around”. The private Community Rehabilitation Companies which were contracted to provide 70% of probation work were supposed to implement this simple vision.

Three and a half years on, the National Audit Office today reported on how Transforming Rehabilitation has  been going. It includes this gobbledygook.

“Through the Gate’ resettlement services began on 1 May 2015; there have, however, been some initial problems associated with the ambitious delivery timescales. For example, some providers encountered challenges in accessing prisons and mobilising their resettlement suppliers. NOMS’ assurance checks found that providers initially focused too much on whether offenders complete the process, which is one of the CRC service levels, rather than the quality of their resettlement plans. NOMS has worked with CRCs to clarify what more they must do for offenders beyond simply completing an offender’s resettlement plans within a five-day period (20 of the 21 CRCs were meeting this target in December 2015) and signposting them to services”.

If you have trouble understanding what that means, you can find an illustration in the Prison Inspectorate’s report on HMP Lewes published earlier this week. They reported that 30% of prisoners were released homeless.Their survey of prisoners  (carried out at the end of last year) found that a much lower proportion  knew anyone in the prison who could help them on release than in 2012- whether with problems relating to accommodation, employment, finance, education or drugs.Somehow however the Inspectors reached the conclusion that “CRC arrangements had developed well”.

In similar vein the NAO flies in the face of their evidence by highlighting the successful restructuring of the probation landscape “within ministerial timescales and without major disruption to services”.  The report makes much of the fact that more than three-quarters (77%) of service users said they had not noticed any change in the overall service they personally received. In fact more felt that the overall level of support and help with housing and accommodation had got worse rather than better. 

But isn’t it a strange revolution when most of the people its designed to influence don’t notice any difference? 

Eating an Elephant: How to reduce the prison population

Last week I heard a senior figure from the Ministry of Justice quizzed about whether the government’s ambitious prison reform plans were possible without a reduction in the numbers of prisoners. He said that while the aim over time was to bring about a fall in the prison population via improved rehabilitation, an overt policy of reducing numbers could alienate the press and public and put the reform strategy at risk. Besides he went on, while the size of the prison population might be the elephant in the room, the only way to eat an elephant is in bite size chunks.

What might be the items on the prison reduction menu if the government did want to adopt a more direct strategy to reverse the rising population?

There has of course been  remarkable (but largely unremarked) progress in cutting the number of under 18’s in custody over the last few years. At the end of February, there were 877 under 18’s behind bars, almost two thousand fewer than ten years ago. The roughly 4,700 18-20 year olds in prison at the turn of the year represents a decline too, of 40% in five years. The forthcoming Justice Committee report could prompt measures to extend the progress yet further up the young adult age range.

Earlier in the year, the Prime Minister accepted that there’s a strong case for the severely mentally ill, and women with small children, “to be dealt within a different way” so we can perhaps look forward to some concrete proposals on what this might entail. This week’s inspection of HMP Lewes, found that the needs of “the large number of disabled and older prisoners” were not being met- the oldest prisoner was 91. The development of a more imaginative way of accommodating such vulnerable people outside the closed prison estate looks long overdue. The Government, will no doubt continue to seek to eat into the number of foreign national prisoners by transferring them, one way or another to their countries of origin. It’s possible too that they will act to address the scandal of post tariff IPP cases.

Each of these initiatives would all help to reduce the pressure on the prisons, but if the Government is serious about achieving its aim “to lead the world with new rehabilitation techniques and smarter ways of managing prisoners”, something much bolder is required in the way of sentencing reform. Ministers seem to be talking up the way that proposed Problem Solving Courts could reduce the use of prison; but threatening swift  and certain spells of detention to encourage compliance with community supervision could well backfire.

Prisons minister Andrew Selous told the Justice Committee yesterday that the Ministry would be reviewing sentencing this year but responsibility for this has been given to Dominic Raab- a hawkish voice who seems to favour extended spells in custody for persistent offenders.

A better approach might be to invite the Sentencing Council to review the going rate for particular offences and make recommendations for scaling down across the piece. The Council has so far proved something of a disappointment, nowadays seeing its role as simply endorsing existing sentencing practice rather than influencing it. But it is the obvious body to help produce a better match between the demand for prison places and their supply.

There is an African proverb that you never finish eating the meat of an elephant. But a wholesale review of sentencing could get a lot further than toying with  a few bite size chunks. 

A Tale of Two Murders

When two boys were convicted of the horrific murder of James Bulger in November 1993, I was working in the Home Office on secondment from NACRO. My job in the Criminal Policy Department was to advise Ministers about juvenile justice and so it was I found myself among a group of officials in Michael Howard’s office watching the news emerging from Preston Crown Court.

I remember two things about the occasion. First, how abruptly Howard dealt with a call put through from Health Secretary Virginia Bottomley, who was considering putting out some sort of statement about the case. In those days there was a long running turf war between the Home Office and DoH about responsibility for children in trouble, but Howard left his Cabinet colleague in no doubt that if any statement were to be made, it would be by him.

Second, when it became clear that the boys would be locked up for many years- the judge initially recommended eight, later raised to ten by the Lord Chief Justice- child care expert Spencer Millham told a TV interviewer that above all, what these boys would need was therapy. Howard turned round and asked us briskly “will they get therapy?  We assured him that certainly while the boys were being held in local authority secure units a therapeutic approach would be taken to their care.

There are of course some echoes of the case in this week’s conviction and sentencing of two young girls for the highly distressing murder of Angela Wrightson. While unlike James Bulger’s killers, the girls’ anonymity has been preserved – although for how long is not entirely clear - their minimum custodial periods they will serve are much higher. 15 years was in fact the period that Michael Howard sought to impose in the Bulger case before having his role in tariff setting ruled unlawful by the House of Lords (and his specific intervention in the case described by a former Master of the Rolls as “institutionalised vengeance”).

The judge’s sentencing remarks in the Wrightson case are carefully reasoned, although his assertion that the minimum term “cannot be reduced or cut down in any way”does not seem to allow for the power- which I understood exists – for the Secretary of State to release life sentence prisoners on compassionate grounds if exceptional circumstances justify it. But the 15 year tariff- greater than the age of each of the girls – begs the question about whether the law complies with the UN Convention on the Rights of the Child which states that the imprisonment of a child shall be used “only as a measure of last resort and for the shortest appropriate period of time”.  The 12 year starting point for consideration of a minimum term for anyone under 18 convicted of murder is surely too rigid to meet the second of these requirements.

The two girls will spend the first three or four years receiving the kind of therapeutic care and education that they certainly need. But as things stand at 18 they will be moved not even to a specialist Young Offender Institution but an adult prison where – as I reported in a recent research study- many women suffer from a toxic mix of fear and boredom.

In 2000,  Lord Woolf reviewed the  minimum sentence for the pair in the Bulger case , recommending their  tariff be reduced back to  eight years, in part because the positive impact of treatment in the secure units could risk being undone in the  "corrosive atmosphere" of  prison. Much the same argument could be made again. There is a case at the least for changing the law so that any progress the girls have made is considered before they are moved into adult prison. Of course if they still represent a danger at that point they should continue to be detained. But what if not?

Many people will feel that the prospect of release after such a period could not properly reflect the terrible wrong that has been done in the taking of a life. But at the very least there is a debate to be had about the proper approach to these kind of highly disturbing and thankfully rare cases. Perhaps the Charlie Taylor review can ask if the diluted version of the adult system which we have in England and Wales is the best way we can provide justice for such highly damaged children as well as those to whom they cause harm.