Prison Broadly Fails

Not the words of the Howard League or Prison Reform Trust but ex Met Commissioner Bernard Hogan Howe a self-styled “hard-nosed enforcer” who thinks punishment really important. He was speaking in last week’s House of Lords debate on ending automatic halfway release for serious offenders. Despite his widely shared view – in the Lords at least- that there are already far too many prisoners, the Conservative manifesto pledge has been approved by both chambers. And the number of prisoners is likely to get a lot higher over the next ten years.

2,000 new prison places will be needed by 2030 as a result of the Statutory Instrument (SI), approved yesterday in the Commons which will see anyone getting a determinate sentence of seven years or more for a serious sexual or violent offence (carrying a maximum of sentence of life) spending two thirds of their term locked up.

But many more cells will be needed much more quickly if legislation promised for later in the year scraps release at halfway for a wider range of prison sentences. Justice Minister Chris Philp told MP’s the SI is "simply the first step in part of a wider process to make sure that we not only protect the public but respect the rights and concerns of victims”. 

Philp had barely got to his feet before one of his colleagues demanded prisoners serve the whole of any sentence imposed. Another wanted even longer than that if they misbehaved inside.  

More telling were the powerful contributions made by MPs who expressed the anger and frustration of constituents- and in one case their own family- who affected by serious crimes felt early release meant justice had not been done; not enough punishment , not enough deterrence, not enough protection for victims and the public- not enough time, some said, for rehabilitation.

On the positive side, Philp promised proposals to do more to treat the causes of offending behaviour, particularly drug and alcohol addiction and mental health problems, which are often the cause of high-volume repeat offending. Philp told MPs that “short custodial sentences do not deal effectively with that cohort of offenders”. So David Gauke’s plans to replace them with community orders may still be alive and well in the MoJ. But, while these welcome measures, depending how they are implemented, could reduce the flow of people into prison, they won’t come close to offsetting the impact of larger proportions of longer sentences being served there.

Add in the effects of the 20,000 new police officers- I’ve heard an estimate of a 12-15% growth in prison numbers resulting from better clear up rates- and there’s a perfect storm for HMPPS and the MoJ. A former Chief Justice wondered aloud in the Lords whether even to meet the costs of the initial measures in the SI other parts of the MoJ particularly the courts and legal aid would continue to be denuded to prop up the Prison and Probation Service.

There will at least be a White Paper which will set out the Government’s approach which at best looks like what criminologists used to call bifurcation – more prison at the top end, less at the bottom.

For those of us who want to see less use of prison across the board, there is an urgent need to develop some fresh thinking. Decrying a populist approach and lack of evidence – as Labour and Lib Dem Peers did last week -will not get far.

It is not true – as one MP put it, that there has been “a creeping, pervasive shift away from the victim towards the perpetrator—that the victim is no longer put first, but the perpetrator is.” But penal reform must engage better with the concerns and anxieties of victims- particularly victims of violent and sexual harm- and develop and promote measures which can address them so much better than incarceration.  

The government told Parliament that the White Paper will give an “opportunity to go further and broader” than the measures they were discussing. They are right. If prison broadly fails, we need to legislate for and invest in what broadly succeeds.  

Children in Custody- Time for Separation from the Prison Service

The Chief Inspector of Prisons has said he does not believe that children under 18 should be held in prison.  “The Prison Service is essentially an organisation for adults, neither structured nor equipped to deal with children. It is the plight of children that alarms us most, not least because of the conditions in which they are held in Prison Service establishments”. This was David Ramsbotham almost a quarter a century ago -but it should have been what his successor Peter Clarke said today.

Clarke’s shocking report on the separation in young offender institutions (YOIs) rightly calls for an entirely new approach to what is effectively solitary confinement, in which children spend long periods of time in their cell without any meaningful human interaction. But disappointingly, he stops short of demanding more thoroughgoing change to a system in which the atrocious treatment he describes is just one symptom.  After four years of diagnosing the ills of youth (and adult) custody, a more radical prescription from Clarke, who steps down shortly, would have been timely for two reasons.

First, the May government accepted the vision contained in Charlie Taylor’s review   that YOIs and Secure Training Centres should be replaced in the longer term by smaller secure units situated in the regions that they serve. But the Johnson administration has yet to confirm the vision is still in place - the manifesto talked only about “trialling secure schools.” A clear signal from the Chief Inspector that the current arrangements need to be replaced would usefully reinforce the case for bold, radical  and comprehensive action. Whether we need new secure schools is open to question, however. Think Tank Crest Advisory has recently argued for an explicit commitment to the closure of all Young Offender Institutions by 2025 and an expansion of secure children’s homes instead.  

Second, among the speculation about possible changes in the machinery of Johnson’s government, a case has been building -for example in last week’s Policy Exchange Report – that Her Majesty’s Prisons and Probation Service (HMPPS)  be  reabsorbed into the Home Office, bringing prisons under the direct control of the Home Secretary, whose department deals with threat, harm and risk to public safety. There are many arguments against doing this, one of which is that it would make prisons even less suitable for dealing with children.  A better move would be to shift responsibility for youth justice to the Education Department alongside children’s social care and secure accommodation.

There’s no guarantee of course that the government would accept recommendations for these kinds of structural changes had Clarke made them. New Labour baulked at Ramsbotham’s proposal, leaving the new Youth Justice Board to drive up standards in YOI’s.  Short-lived improvements in the early 2000’s could not overcome fundamental structural faults. The Youth Custody Service too has struggled since 2017 to make YOI’s sufficiently child focused. Despite some good staff, the buildings, rules, procedures and culture are all too often simply wrong.

So too is the level of investment. The government in their response to the Taylor review promised additional specialist support units with a higher staff to young person ratio to provide enhanced psychological support and guidance to children and young people with the most complex problems.  The Inspectorate report’s finding that many children in YOIs are subject to unacceptably impoverished regimes tells a different and depressing story. 

Now’s the time to start writing a new chapter .

Sentencing on the Box- More Confidence or More Prisoners ?

What will be the impact of televising judges’ sentencing remarks in the Crown Court? Justice Secretary Robert Buckland and Lord Chief Justice Lord Burnett hope that regular broadcasting will improve public understanding of the justice system. The BBC, ITN and Sky, who have long campaigned for greater transparency in the courts say much the same. But there must be serious questions about whether filming and broadcast from courts will in fact lead to an increased level of public confidence in the sentencing decisions handed down by judges. Around 70 per cent of the public think sentencing in general is too lenient and while this perception is often reduced when people are presented with individual cases, the latest research for the Sentencing Council found that “for some offences, there may be a public appetite for higher sentences than the guidelines suggest or legislation allows”.

Critics of the plan include barrister Clive Stafford Smith, who  thinks televising sentencing decisions is a very bad idea indeed which will impose “political pressure on judges to be harsh on people populists hate and label ‘criminals’”. I’m concerned that there’ll be a spike in complaints about unduly lenient sentences and a chilling effect on creative sentencing which prioritises rehabilitation over punishment. All that could mean longer sentences and a much-increased prison population.  Or will the benefits outweigh the risks?   

The Supreme Court has allowed broadcasting of its proceedings since it was established in 2009 and filming in the Court of Appeal has been possible since 2013 although I can’t remember seeing much footage of the latter. The government reviewed the introduction of Appeal Court broadcasting after a year of implementation, concluding that after some initial problems, it had effectively been embedded into court practice. The review also raised the issue of whether “the broadcast material is used in a manner conducive to achieving the policy aims of improving public access and understanding of court judgements”. This theme was one to be re-considered as part of a proposed test in the Crown Court which was undertaken three years later.

In 2016, the government launched that test of the practical and technical challenges of filming in the Crown Court. In Parliament, “support was expressed for an extension to court broadcasting if it led to increased public understanding of the court system and greater transparency of court judgements”. But how do we know if it has achieved these worthy aims?

An Impact Assessment prepared in 2016 before Parliament approved the test filming in the Crown Court said that “following the end of the test period, a further Impact Assessment will be prepared to support the final decision as to whether to allow Court Broadcasting of sentencing remarks from the Crown Court”. But the Statutory Instrument (SI) laid before Parliament last week which would make that final decision has no Impact Assessment attached to it.  One has not been prepared “as no significant impact on the private, voluntary or public sector is foreseen”.

Before approving the SI, MPs and Peers must ask some serious questions about what is known about experience so far- and indeed in other jurisdictions where filming is allowed.  The government have acknowledged that their policy aims would not be met if the media selected cases for public interest value or excitement, rather than with the aim of promoting understanding. Risks have also been raised by government that “televising our courts may open the judicial process to sensationalism and trivialise serious processes to a level of media entertainment”.  How do they propose to prevent this happening?

The government claims that televising hearings is part of their wider court reform and digitalisation programme, “using technology and modern ways of working to increase access to justice for people up and down the country”.  But, to coin a phrase, they would, wouldn’t they?

A Year - and Decade - of Penal Policy

In a curious symmetry, penal policy in 2019 has mirrored the decade as a whole. 

  

The year opened with then Prisons Minister Rory Stewart proposing to abolish short prison sentences, followed by his boss David Gauke giving perhaps the best ministerial speech on sentencing since Ken Clarke spoke at King’s College London just after the 2010 election.

While Clarke’s plans to reduce prison numbers went with him to the back benches in 2012, Gauke’s seem to have departed with him from the Conservative Party altogether. The new Prime Minister wants to toughen up what he sees as “our cock-eyed crook-coddling criminal justice system”. While Boris Johnson’s sights are set on longer periods in prison for the most serious sexual, violent and terrorist offenders, this could easily have the effect of raising the going rate for a much wider range of crimes.

 

Sentencing for serious offenders has become more severe over the decade with the custody rate for indictable offences rising from a quarter to a third and the average length of a jail term for all offences up from 13.8 to 17.4 months. But because of falling clear up rates and prosecutions, the prison population is slightly lower now than 10 years ago. Sentence inflation has occurred in spite of the guidelines produced by the Sentencing Council which marks ten years of operation next year and whose impact leaves much to be desired.  

Johnson’s line has been hardened by November’s dreadful events at Fishmonger’s Hall which tragically cut short the lives of two inspiring young people involved in an initiative to open up educational opportunities for prisoners. A month earlier, former prisons boss Sir Martin Narey had controversially called for prisons to forget rehabilitation, and with the new government pledging  a root-and-branch review of the parole system and talk of shifting responsibility for sentencing, prisons and probation back to the Home Office, the new decade looks set for a repressive turn.

It might have been different. But David Cameron’s hubristic promise of prison reform as a defining, progressive cause for his government disappeared with him and his lieutenant Michael Gove after the EU referendum. While Gove subsequently returned to the May government in other roles, his successors at Justice belatedly abandoned his lofty rhetoric about redemption and instead focussed much needed attention and funds on addressing the major operational crises created by reckless staff reductions and the increasing availability of drugs in prison. Promised new prison legislation has never materialised but controversial measures such as the introduction of incapacitant spray for prison staff are on their way.   

Alongside, the probation service, sacrificed on the altar of privatisation by Chris Grayling in 2014, suffered a widely predicted decline in performance, charted in forensic detail by former Chief Inspector Glenys Stacey.  In May this year, Gauke bowed to the inevitable by announcing the re-nationalisation of probation supervision.

The last years of this decade have thus been spent on urgent repairs to the largely self- inflicted damage wrought on criminal justice institutions. Had the numbers of people sentenced by the courts not fallen by more than 40% in the last ten years, prison and probation services would have collapsed. 

Youth justice has fared a little better- if only because numbers in custody have continued to fall through the decade, with fewer than 800 under 18-year olds behind bars in October 2019 compared to more than 2,000 ten years ago. Black and minority ethnic over-representation among children locked up remains shockingly high and the fall in numbers has not led to better conditions or treatment for those who continue to go to custody. 

Much criticised Coalition plans to build a very large Secure College were abandoned after the 2015 election and it would not be a huge surprise if a similar fate  awaits the new Secure School due to be opened by Christian charity Oasis next year but already postponed until 2021.  Many of the more radical proposals in Charlie Taylor’s 2016 Youth Justice Review were dispatched to the long grass but in the face of decades of experience, the belief in the need for yet another form of youth custody has proved enduring.             

      

Back Home? Why Sentencing, Prison and Probation Should Stay in the Ministry of Justice

The Johnson government is reportedly considering a shift in responsibility for sentencing, prisons and probation from the Ministry of Justice to the Home Office. I’m not altogether surprised; before the 2016 referendum, I heard Michael Gove tell an Oxford seminar he’d like to disband the MoJ (of which he was then Secretary of State), because it was a European type of institution unsuited to British traditions.

There may be a superficial attraction in combining responsibilities for crime and punishment -not only to those who favour a more punitive approach to offending but by those who hope that any Home Office plans for a crackdown would be tempered by the need for the Department to pay for its penal consequences.

But while the MoJ’s governance of criminal justice over the last 12 years may have earned it few friends, progressive reform is much less likely to emerge from our Interior Ministry – famously described by Whitehall- watcher Peter Hennessey as the graveyard of liberal thinking since the days of Lord Sidmouth.

For one thing, according to a book she co-authored in 2011, Priti Patel the current Home Secretary believes that we need to “reverse the tide of soft justice”, ensure that persistent offenders are imprisoned for long periods of time and make prisons “tough, unpleasant and uncomfortable places”. After the Coalition- a Conservative Agenda for Britain- written with four other current government ministers argues that “the primary purpose of our justice system is to protect our society, not to act as a welfare service for convicted criminals”. Current proposals to increase the severity of sentences may not go far enough to satisfy their desire for harder penalties.  

Not all Home Secretaries are so firmly in the Michael Howard Prison Works tradition of course, but responsibility for security and the reduction of crime will often produce penal policy which is at best risk averse and at worst unnecessarily harsh. The Ministry of Justice, whose centre of gravity includes human rights and the rule of law ought to tend to a more balanced approach to the use and practice of imprisonment. Home Secretary Theresa May's joke to Justice Secretary Kenneth Clarke., “I lock ‘em up, you let em out” says something about the departments as well as their ministers.  

     

Consolidating crime and punishment in the Home Office would raise questions about the Parole Board- increasingly a judicial body that would not sit well in Marsham Street; about Youth Justice which many think belongs in the Education department; and about the role of Police and Crime Commissioners.

Ms Patel and her colleagues argue that the role of PCCs should be extended so they are responsible for commissioning custodial and non- custodial sentences for those who are convicted.  There could be some benefits to such a devolved approach if it creates a dynamic to encourage the development of better alternatives to prison and measures to reduce -re-offending. But the government’s belief that public confidence in criminal justice will be restored by longer prison terms make these Justice Reinvestment outcomes unlikely in the current climate.

After the fall of the Berlin Wall, the new democracies of Eastern Europe who wanted to join the Council of Europe had to meet certain conditions including abolishing the death penalty and moving their prison systems to the Ministry of Justice. The latter was to encourage the "civilianisation" of highly militaristic and security focused approaches to detention. The MoJ is now responsible for prisons in all 47 countries of the Council of Europe, except Spain.

In their book, Ms Patel and her colleagues have deplored the fact that an increasing human rights agenda and increasing interference from Europe discourage prison sentences, decrying the Council of Europe’s belief that prisoners should be treated in a way that reflects the normal life of freedom that all citizens generally enjoy. 

Moving prisons to the Home Office could mean much more than an administrative change. It could be a fast and slippery slope to people going to prison not as a punishment but for a punishment.          

    

Which Prisoners Can Vote on December 12th?

December’s General Election will be the first since the UK settled the prisoner voting cases in the European Court of Human Rights. In the Hirst group of cases, the Court found that the blanket, automatic restriction on all convicted prisoners voting in parliamentary elections violated Article 3 of Protocol No. 1 to the European Convention on Human Rights which requires that elections ensure the free expression of the opinion of the electorate in the choice of the legislature. After years of toing and froing, in November 2017 then Justice Secretary David Lidington somehow managed to satisfy the Council of Europe that some very minimal administrative reforms brought the UK into compliance. So where do these leave prisoners’ rights to vote next month?

As before the Hirst cases, remand prisoners (both untried and convicted but unsentenced) will be eligible to vote- there were 9,512 at the end of September 2019. So too will those subject to suspended sentences of imprisonment (about 40,000), prisoners released under Home Detention Curfew (2,809 at the end of last week) and civil non-criminal prisoners detained for matters such as non-payment of council tax or contempt of court. There were 850 non- criminal prisoners at the end of September, but the figure includes people held under the Immigration Act who do not qualify to vote.  The 50 odd fine defaulters in jail are also be able to vote if they wish.

The new group of prisoners who are eligible to vote following the Hirst settlement are those on temporary release from prison- so called ROTL.  Lidington told the Commons in November 2017 that he expected the change to affect up to 100 offenders at any one time, but the basis of the estimate is not clear. In the fourth quarter of 2018, there were almost 99,000 “incidences” of release on temporary licence- involving 4,283 individuals.  On the face of it Lidington’s, estimate looks on the low side.

So will all prisoners subject to ROTL on 12 December be able to vote? To do so they will of course have to register by 26th November. Lidington told MPs that any prisoner wishing to vote would have to satisfy the conditions for registration at a genuine home address. He said that they would not be able to register at the prison and seems to have ruled out registration in a constituency where the prisoners has lived previously, following a “declaration of local connection”. These two modes were available to prisoners eligible to vote pre-Hirst but appear not to be for the ROTL prisoners. Lidington told a fellow Tory MP that he thought it unlikely in the extreme that anybody serving a long sentence could demonstrate in practical terms that they had a continuing home residence other than a prison.

This may explain why the number of prisoners on ROTL who will be able to vote is estimated to be so small. It explains too the puzzling claim in the Government’s report to the Council of Europe that the prisoners who will be eligible “are primarily, as in other countries, prisoners who are serving short sentences”.  ROTL is mainly used in Open Prisons where 80% or more of prisoners are serving sentences of more than 4 years. On the face of it, it’s only a very rare bird- a short term prisoner on ROTL -who will in practice be able to vote thanks to the Hirst judgement.  

Guidance was sent to Prison Governors last year about the new arrangements – which I have not seen so I may have misunderstood what has happened. It's quite possible that once MPs had been placated, a more sensible set of arrangements have been put in place under the radar. But there seems to be no revision to the Prison Service Order on Prisoner Voting Rights. In the absence of proper scrutiny of the new system, the suspicion must be that the government can say that their policy is that those on ROTL will no longer be barred from voting while implementing it in a way that continues a de facto ban. Expect another case in the European Court before too long.

Tagging Along

Boris Johnson’s efforts to increase prison time served by serious sexual and violent offenders by way of a Statutory Instrument were stymied by the House of Lords. Before the election was called, the Lords Secondary Legislation Scrutiny Committee also put paid to the other proposal to emerge from the so-called Sentencing Review- the national rollout of the Alcohol Abstinence and Monitoring Requirement (AAMR) or Sobriety Tag. This requires an offender to abstain from alcohol for up to 120 days with compliance electronically monitored. The tag worn on the ankle takes a sample of sweat every 30 minutes which is analysed for the presence of alcohol. First piloted in London when  Johnson was Mayor, both the PM and his erstwhile advisers now in No 10 are enthusiastic about it.

Back in 2015 the Conservative manifesto pledged to make Sobriety Orders, reinforced by tags available to all courts in England and Wales- but it didn’t happen (and the policy was not mentioned in the 2017 manifesto). It was not until The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 14) Order 2019 was laid before Parliament last month that the government has sought to enable the Sobriety Tags to be imposed as part of a requirement of a community order or a suspended sentence order throughout the country.   

As with the Statutory Instrument which would have increased the proportion of time served by prisoners convicted of serious crime, the Lords Committee raised concerns. Being asked to approve the programme on the basis of very limited information was “unacceptable”; it was “interesting”, but rollout was “premature”.   The Committee recommended that the House press the Minister for more detail on all aspects of the plans for rollout and anticipated long-term outcomes. There was no time to do this before Parliament was dissolved so the law hasn’t changed.  

The 2012 Act provided that  national implementation could only happen after piloting and the Government claimed that two pilots had proved sobriety tags a success. A process and performance review of the scheme across the capital – one of four published evaluations – has reported on more than 1,000 AAMRs imposed between April 2016 and March 2018. There was a compliance rate of 94% with the tag- although compliance with the overall order of which the tag was a part was lower- a distinction about which the Lords Committee wanted clarification. More significantly, there is no data about re-offending with an analysis from the Mayor’s office almost a year late.  

The evaluation of the other pilot in Humberside, Lincolnshire and North Yorkshire is not due to be completed until February 2020. Despite this, the MoJ considers that it now has the information necessary to fully commence the legislation and roll out AAMR across England and Wales. Their Lordships disagreed.

It’s certain that sobriety tags will figure in the Conservative manifesto, alongside perhaps  the promises of swift and certain punishment or flash incarceration made before . Whether they come to anything is of course another matter.