Swift but not yet Certain. New Government Policy on Prison.

There was some relief yesterday when the new Prime Minister placed the Justice brief in the experienced and relatively liberal hands of Robert Buckland. Yes, as Solicitor General he had appeared to relish appealing unduly lenient sentences, but his policy instincts are not necessarily punitive. As a back bencher, he spent a good deal of time on the Justice Committee and was a member of the Independent Parliamentarians’ Inquiry into the Youth Court which backed a more problem-solving approach to children who offend.

More importantly perhaps, Buckland's admittedly brief ministerial exposure to the prison and probation services will have alerted him to their current fragility- forcefully confirmed in the case of prisons by the latest set of performance ratings in which a record 14% establishments are of serious concern. Buckland’s predecessor as Justice Secretary was perhaps suffering a touch of gate fever himself when he informed the Justice Committee nine days ago that that he felt “we have made good progress in addressing some of the challenges that prisons face right now - on safety, security, decency, and the estate in general”. That assessment rather flies in the face of the evidence. 

Today as expected, PM Johnson told MPs that he had “tasked officials to draw up proposals to ensure that in future those found guilty of the most serious sexual and violent offences are required to serve a custodial sentence that truly reflects the severity of their offence and policy measures that will see a reduction in the number of prolific offenders”. Whatever else they might achieve, these priorities for government will almost certainly place yet more pressure on the prison service. So too of course will pumping funds into the police.

Average sentence lengths for sexual and violent offences have risen sharply since 2010- from 49 to 61 months for sex and 20.8 to 23.5 months for violence. England and Wales have more life sentence prisoners than the rest of Europe, with average tariffs almost twice as high as they were in 2003. So, what’s Johnson's thinking?

Tories have long been uncomfortable with automatic release of most determinate sentenced offenders at the half way point. Back in 2008 they pledged to “introduce honesty in sentencing so courts set a minimum and a maximum period, with no possibility of parole until the minimum has been served." Grayling and Gove mulled an earned release system. Maybe we are in for one or both of these options. Expect too, further extensions to the scope of the unduly lenient sentence scheme. 

Johnson will be alive to the electoral appeal of these kind of changes. His views may also have been shaped by his partner Carrie Symond's awful experience- as a 19 year old-  as one of the many victims of John Worboys. She certainly felt that “the justice system and the Parole Board let us down", helping to fund raise for the Judicial Review of the latter's decision that Worboys should be freed.  Can we expect further reform of the Board? 

On prolific offenders, the 2015 Tory manifesto promised “a new semi-custodial sentence …allowing for a short, sharp spell in custody to change behaviour”. Briefings afterwards revealed that so called flash incarceration will mean “persistent vandals, shoplifters and drug addicts will spend two nights in a police cell under Conservative plans”. Despite it's impracticality , is this "swift and certain punishment" back on the cards? Or can we hope for something more measured building on the public health approach?

Think tanks Policy Exchange and the Centre for Social Justice are each likely to claim the role of midwives for any policy of “swift and certain" with Crest Advisory currently working on proposals. The first two as least have extolled the virtues of Hope Probation, a tough love programme piloted in Hawaii which involves probation supervision accompanied by frequent drug testing. Failures lead to immediate but short terms of detention. Research has found impressive outcomes in terms of reduced drug use and jail time.  Because of its success, the short terms of detention imposed on programme failures require fewer prison beds in Hawaii than do the longer sentences served by those who fail normal probation supervision.  

Despite the research, I have been a bit sceptical about the wisdom of importing the approach in the UK. Some observers at least, while acknowledging the impact that Hope has had in Hawaii, question whether that is enough to justify its “correctional popularity”. Frank Cullen and colleagues at the University of Cincinnati point to “uncritical acceptance and importation of the programme to the U.S. mainland” and argue that several uncertainties about the programme may potentially compromise its effectiveness in other jurisdictions, thus offering false hope as a new paradigm.

Whatever happens it’s hard to see David Gauke’s consultation paper on limiting short prison sentences seeing the light of day. In a worst case, we'll see more short sentences for petty prolific offenders and more long ones for serious offences. Let's hope Buckland can find a way to prevent that outcome. 

Short Changed ?

Soon to be ex Justice Secretary David Gauke rightly told us in a farewell speech last week that a short spell in prison doesn’t protect the public, doesn’t serve as much of a deterrent and exacerbates those already deep-rooted difficulties an individual faces. Sadly, his own 18-month spell as Justice Secretary hasn’t proved long enough for him to do much about the problem. He should really have started tackling the issue much sooner. He seems to have listened to his deputy’s Rory Stewart’s foolish view that there had been too much talk “about grand issues of sentencing policy, reoffending and the policy context.” In reality there hasn’t been enough.

David Gauke has done what he can to encourage his successor to take forward his progressive reforms to sentencing. He’s bequeathed them a Single Departmental Plan for the MoJ that aims to protect the public from harm caused by offenders through building confidence in an effective probation system, reducing the use of prison and increasing the use of community and alternative sentences. And he’s got his department to produce a sheaf of research showing an £18 billion cost of reoffending, very high level of needs experienced by people who commit crime and the fact that sentencing them to short term custody- even with supervision after release- is associated with higher proven reoffending than if they'd instead got community or suspended sentence orders.  But will all this be enough to keep a policy of reducing prison numbers in place?

A somewhat different view has been put forward by new Tory think tank Onward who argue that a greater number of persistent offenders should go to prison for longer periods.  Disappointingly, on penal policy, Onward's “new ideas for the next generation" turn out to be Michael Howard's Prison Works vision from the last one. Onward seem to want “three strikes and you’re out” mandatory minimum prison terms, arguing that “super prolific offenders” account for more crime and get fewer prison terms than in the past. They also want more prisons to be built. (Their Director Will Tanner used to work for G4S).

The statistics Onward deploy seem arguable. With fewer crimes being cleared up, it’s not surprising if “the usual suspects” loom larger in the population of those who are brought to justice. It would also be odd if the calamitous decline in prison performance and debacle of probation privatisation have not had negative impacts on the unfortunate people who have experienced them as service users.

Dealing with petty persistent offenders raises some fundamental questions of sentencing philosophy in particular about the weight that should be attached by courts to previous convictions. On one view, anything but a very limited weight can amount to a kind of double- or more-  jeopardy in which you can end up being punished in perpetuity for past misdeeds.  

The short-lived 1991 Criminal Justice Act controversially provided that an offence should not be regarded as more serious because of any previous convictions of the offender or any failure of his to respond to previous sentences.

On another view, repeat offenders deserve to be dealt with more harshly, because spurning a chance to go straight and continuing to flout authority make bad behaviour worse and elevate the need to protect the public above concerns about reform and rehabilitation. For the last 25 years, courts have been required to find recidivist offenders more culpable; and many of those who end up getting short prison sentences are likely to have simply exhausted the patience of the magistrates and judges.

Whatever Onward might think about the feebleness of the courts, the fact remains that since 2010 for the more serious types of cases , the proportion of offenders going to prison has gone up along with the length of their sentences. They are right to call for a review of Sentencing Guidelines, but if the Sentencing Council were to do its job and properly have regard to the cost of different sentences and to their relative effectiveness in preventing re-offending, the conclusions would be very different from Onward’s dismal prescription.

Unfortunately, evidence may struggle to prevail in the forthcoming government. Back in 2011, several up and coming Tories argued the need to reverse the tide of soft justice, “not ashamed to say that prisons should be tough unpleasant and uncomfortable places”. Liz Truss, Dominic Raab, Priti Patel and others who now expect jobs from Johnson, argued that what was to become Gauke’s policy of a presumption against short prison sentences is the wrong approach and that we should be doing exactly the opposite- ensuring that persistent offenders are imprisoned for longer periods. “When the law is broken, our condemnation should be unequivocal. The primary purpose of our justice system is to protect our society, not to act as a welfare service for convicted criminals.”

Such a forlorn view may bring an end to short prison sentences – but only by replacing them with longer ones.
   

Don't Look Back in Anger

Back in the early 1990’s, in one of the more disreputable periods in my career, I worked in the Home Office helping to design the new Secure Training Centres. I remember accompanying a senior mandarin to Northern Ireland to look at their Training schools.

At St Patrick’s, run by the De La Salle Brothers we were offered a glass of sherry -it was about 10.am. We watched the boys running – and in some cases hobbling- around the yard -as Brother Francis struggled to explain the legal basis of their detention and showed us bare dormitories and boxing trophies. We moved on to Rathgael, the Protestant School – run by imposing and large sharp-suited men but seemingly a bit more modern in its approach. Lisnevin – a mixed but miserable Borstal establishment down the coast completed our tour.

If its purpose was to provide inspiration, the trip was a failure. In fact, I’d worked out the main aim was to enable my colleague- who’d done time in the Northern Ireland Office- to attend a Burns supper at Hillsborough Castle hosted by Sir Patrick Mayhew.

Whether religion should play a role in secure establishments for children has become a hot topic in England and Wales with the announcement that the Oasis Charitable Trust will operate the first Secure School – on the site of the first STC at Medway in Kent. Oasis , established by the Reverend Steve Chalke runs more than 50 academy schools and a range of other social provision. According to its website, Oasis UK is inspired and motivated by the life, teaching and example of Jesus.  Chalke has said of running the secure school  “Youth jail detention centres don't work. This is a great opportunity for us to show that a Christian ethic, a Christ-centred ethic produces a different result”.

Christianity has long been involved in prison reform of course- the penitentiary after all was a Quaker invention. And whatever the religious motivations of Oasis, the organisation’s values include a desire to treat everyone equally, respecting differences. Presumably that’s a requirement for running their academies. But secure units are not schools. 

The UN Standard Minimum Rules for the Treatment of Prisoners, the  Nelson Mandela Rules say that “if any prisoner should object to a visit of any religious representative, his or her attitude shall be fully respected”. The UN Rules for the Protection of Juveniles Deprived of their Liberty give every juvenile the right freely to decline religious education, counselling or indoctrination. The Council of Europe's Rules say juveniles may not be compelled to practise a religion, follow a belief, attend religious services  or meetings, take part in religious practices or to accept a visit from a representative of any religion or belief. 

 The Secure School’s residents will probably not have any choice about whether they go there.  Last year, one in eight (13%) children in STCs  identified as Muslim - almost a quarter of those in Young Offender Institutions.

The experience of running academies hasn’t been without problems. Back in 2008, in one of them, “around 150 teenagers caused hundreds of pounds of damage after running through the corridors armed with bits of wood, smashing windows and trying to rip plasma television sets off walls”. Much more recently, in 2015 Ofsted criticised the  'limited leadership' in the Oasis academy chain, finding that disadvantaged pupils,particularly boys, make significantly less progress than their peers nationally.  The challenges of running a closed facility will be immeasurably greater than running a school.

It would not, however, be right to pre judge the organisation. We will apparently get to see the plans for the school in September though why the Ministry of Justice don't publish them now is a mystery. But I’m not sure that putting redemption at the heart of youth custodial system will produce any better outcomes than previous noble sentiments.

Why not ? Because the fundamental flaws inherent in bringing together troubled young people in closed institutions almost always outweigh the positive intentions of those that run them. Almost a quarter of allegations of sexual abuse in custodial institutions reported by the Independent Investigation were from secure children’s homes- generally agreed to provide the best type of child custody.

In its existing work, Oasis boasts an integrated ‘Community hub' model, which seeks to create a new sense of neighbourhood in communities that had previously been forgotten by society so that everyone, regardless of their background and starting point, can join together to overcome life’s hurdles. I’d be more comfortable if the organisation was extending this approach to deal with children in conflict with the law without depriving them of their liberty.    

Planning Application

"Many offenders commit crimes so serious, or so persistently, that they must be imprisoned. Custodial sentences contribute to public safety by keeping criminals off the streets". So said the Ministry of Justice’s Single Departmental Plan for 2015 -20 published three years ago. Contrast the punitive tone with the newest version of the Plan published this week.  Yes, one of the objectives is still protecting the public from harm caused by offenders. But meeting it involves not more imprisonment but building confidence in an effective probation system, reducing the use of prison and increasing the use of community and alternative sentences.

These kinds of documents are not really plans at all but broad statements of intent – yet the shift in emphasis in this one is welcome for two reasons. First, it’s a sign that the ill wind of Transforming Rehabilitation has led to probation getting long overdue recognition in Whitehall and the more careful attention it deserves. The Departmental Plan says future reform will place a stronger emphasis on the quality of relationships between offenders and probation officers and ensure offenders get access to services that support their rehabilitation; and recognise the skills and professionalism of the probation workforce. That’s some sort of reparation at least for the ideological vandalism wrought on probation in recent years, and a welcome focus on improving practice.  

Second, the Ministry of Justice has put into a planning cycle, however fragile that may turn out to be, commitments for getting prison numbers down. Okay the plan is only to “develop” options for restricting the use of short custodial sentences and “consider” ways to increase the use of non-custodial sanctions. The Justice Committee will not be satisfied with that, writing only this week to Justice Secretary David Gauke asking for more detail on the options for abolishing short prison terms and the time frame under which the Government will be taking this forward.

It must now be unlikely either that Gauke gets firm proposals on sentencing out in the next few weeks, or that he continues in post beyond that.  What this Plan suggests is that he is trying not just to leave a progressive legacy but to influence his successor’s policy choices in a sensible direction.  It may not work- it’s easy to envisage harsher penal policy forming part of a new Prime Minister’s efforts to keep their party together- damaging, unnecessary and expensive though that may be.

If the new government reverts to a  “prison works” policy , this week’s Single Departmental Plan will count for little.  As Mike Tyson put it, “Everyone has a plan 'till they get punched in the mouth”.

Sentencing Blues ?

Justice Secretary David Gauke told MPs this week that he had tried out a GPS electronic tag that had monitored his whereabouts for two days. The question is where he will be after July 22- the date a new Prime Minister will be in place -and more importantly what will become of his plans to reform sentencing.

On the abolition of short prison terms for most offences, Gauke told the Commons “we are working towards having firm proposals by the summer”.  I read that as at best a White Paper. At worst the proposals may not see the light of day.

Why? For one thing, it’s hard to see a traumatised probation  service being able to up its game in time. More importantly, a new Downing Street regime eager to reclaim Conservative supporters from the clutches of Nigel Farage, may be reluctant about -or hostile to - a policy that can be made to look soft on crime.

Conservative Home and Justice Secretaries have embraced a wide spectrum of views over the years- with hardliners like Leon Brittan, Michael Howard, and Chris Grayling, as likely to forge penal policy as the more liberal Douglas Hurd, Michael Gove and now Gauke.

Tory Prime Ministers have varied too in the interest they have shown in criminal justice. Margaret Thatcher surprisingly let Hurd (with his special adviser David Lidington) pursue a moderate Home Office agenda, culminating in a 1991 Criminal Justice Act which aimed to reserve prison for the most serious cases. By contrast, John Major’s desire to condemn a little more and understand a little less gave a green light to  Howard’s baleful notion that Prison Works- though it was actually revisions to the 1991 Act by Ken Clarke- usually thought of as a liberal - which started the punitive counter revolution. Cameron’s attachment to prison reform was as superficial as it was hyperbolic- something that might be said of Gove’s tenure as Justice Secretary  too.   

Of the current leadership contenders, for what it’s worth, I’d place Leadsom, McVey, and Raab -all from the right of the party -in the punishment camp. with former prison ministers Gyimah and Stewart, with Gove in the more rehabilitative tradition. The others are harder to call. Javid looks a far from liberal Home Secretary but has endorsed a public health approach to violence. Hancock, though Health Secretary denounced that approach, seemingly badly briefed. Hunt is socially liberal, though suggesting in 2010 that hooliganism played a role in the Hillsborough disaster raises questions. As immigration minister, Harper piloted the “Go Home or Risk arrest Vans, which he apparently doesn’t regret.

What of the favourite? A recent Telegraph piece by Boris Johnson promised a harder line, on serious offenders than “our cock-eyed crook-coddling criminal justice system” currently provides. Yet as London Mayor, he funded an interesting resettlement programme at Feltham YOI though then proceeded to overclaim its success.

Many factors influence a politician’s stance on crime as on anything else. For good or ill, ideological preferences can be modified by short term political calculation, affordability, technical feasibility even personal experience. I’ve seen it suggested that Tony Blair’s tough approach to crime was at least reinforced when his mother in law was the victim of a mugging.

It’s possible Johnson might allow a modest attempt to reduce short sentences alongside a more restrictive regime on early release for those on longer ones. Offsetting a positive reform with a crackdown elsewhere would be nothing new.

40 years ago, Thatcher’s first Home Secretary William Whitelaw tried to introduce a more generous early release scheme to reduce prison numbers but is mainly remembered for notorious short sharp shock Detention Centres.

Making prisoners serve longer will lead to a potentially large increase in the prison population, even if short sentences fall. This is what seems to be happening in Scotland where despite a presumption against short prison terms, the overall numbers behind bars have gone up. If something similar is the political price to pay for Gauke’s reforms, they could prove something of a pyrrhic victory. Lets hope its not a price that has to be paid.

Unduly Surprised?

More than a week after Rory Stewart’s promotion to the Cabinet, the Ministry of Justice has a Minister for Prisons and Probation. It’s former Solicitor General Robert Buckland – something of a surprise appointment.

For one thing it looks like a demotion. The Law Officers get paid more than common or garden ministers. Maybe the delay in making the appointment has been down to salary negotiations. We’ll find out in due course whether he’s managed to hang on to his existing terms and conditions.

There’s a question too about how well Mr Buckland’s distinguished career as a lawyer has given him the skill set to pick up and run with Stewart’s Back to Basics agenda in prisons; or to revamp the ailing probation system. Let’s hope it has. The job specification -including prison operations and industrial relations -is certainly a demanding one.

Finally, there’s his attitude to sentencing, which will be one of his policy responsibilities in the Ministry of Justice. No doubt Mr Buckland is very knowledgeable and experienced in the field. But much of his time as Solicitor General has been spent deciding whether judges have been unduly lenient. Where he has determined they may have been, he’s personally presented almost 40 cases to the Court of Appeal, arguing for tougher sentences.

How well will Mr Buckland gel with new boss David Gauke who has urged caution in continuing to increase sentence length as a response to concerns over crime? The Justice Secretary has urged “those who shape the system to ask fundamental questions such as whether our approach to sentencing reduces crime, if prisons currently maximise the chances of rehabilitation and if we should look at better alternatives to punish and rehabilitate offenders”.

That’s not something Mr Buckland has had cause to do much of in his last job and I have sometimes winced at the way he has taken credit for harsher sentencing outcomes -putting out press notices such as “Workplace groper ordered to serve community after Solicitor General intervenes” and “Burglar jailed after Solicitor General’s intervention.”  

Maybe Mr Buckland was just doing his job. And now he has a different one .

Counting Troubles

Someone- maybe President Lyndon Johnson -famously said that the first rule of politics is to be able to count. This seems to have been lost on the UK Parliament’s Joint Committee on Human Rights who earlier this month published an important report on Youth detention: solitary confinement and restraint.

The report recommends that the use of pain inducing techniques and solitary confinement of children in detention should be banned because they cause physical distress and psychological harm in both the short and longer term and are clearly not compliant with human rights standards.  So far so good, but the report is far from clear about the children it considers to be in detention.   

The report’s summary opens with the claim that “Around 2,500 children are detained by the state in England and Wales at any one time.” When I saw it, I thought the figure looked far too high and have now had a chance to look into it.

The Committee reaches the 2,500 figures by adding together four basic types of institution where they say children are detained. They are broadly correct that 900 children are detained in the Youth Secure Estate in relation to criminal matters - Young Offender Institutions, Secure Training Centres and Secure Children’s Homes. But the Committee is wrong to say that all of these are “under custodial sentences for criminal convictions”. About a quarter are on remand.

The Committee is also right that around 100 children are detained in Secure Children’s Homes (SCHs) for welfare reasons (although its not clear that all of these are aged 10-14 as the Committee claims)

It’s the Committee’s figures on children with mental health issues and learning disabilities which look seriously awry. On mental health, the Committee reports that “around 1,200 children … are detained in Child and Adolescent Mental Health Services (CAMHS) Tier 4 units, under the mental health legislation”.  The source for the 1200 number is given as NHS England, 2017–18 NHS Benchmarking CAMHS Data. This is not publicly available data but the official responsible for it has told me that she thinks there has been some mis-interpretation of it in the Committee’s report as “We did not report data on detentions of children under the Mental Health Act. We only collect data on CAMHS bed numbers and total admissions to these (most of which will be on a voluntary basis, i.e. not detained)”. 

The Committee also reports that around 250 autistic children and children with learning disabilities are detained in Assessment and Treatment Units (ATUs), CAMHS units or other inpatient units, under the mental capacity legislation or mental health legislation. This looks incorrect as well. It’s true that NHS data shows that at the end of October 2018 there were 250 inpatients under 18 with learning disabilities and/or autistic spectrum disorder receiving inpatient care commissioned by the NHS in England. But it is very unlikely that all of these were detained. The data shows that of the 2,350 inpatients of all ages in care at the end of October 2018, 1,140 (48%) were in a secure ward.

A census undertaken by NHS England of young people in secure settings on 14 September 2016 which was published last year reported that 1,322 English young people were  in secure units- 903 in the youth justice system, 107 for welfare reasons and 312 under the Mental Health Act.  There is no mention of any children with autism and learning difficulties.

Maybe I’m nitpicking and what look like counting errors or definitional muddles do not detract from the report’s main conclusions. The Committee may take the view that their recommendations should apply not only to detained children but with even greater force to other children accommodated by the state. But then they should say so in clear terms.

I always worry that if people get the basics wrong, they are likely to get other things wrong as well. If I am right, the Committee should publish an erratum about the figures and explain exactly what they understand by the term detention.