Justice Sunset

So, coming hard on the heels of emergency prison releases and Operation Safeguard, according to this Criminal Law Solicitors' Association press release yesterday, we now have Operation Early Dawn:- 

MoJ implements Operation Early Dawn – Mags Court impacted from tomorrow

We have been informed this evening that the Lord Chancellor is triggering an emergency measure, Operation Early Dawn, to deal with the worsening problem of the prison population. Details are somewhat lacking but it appears to be an extension of early release and other measures, but there is a particular measure affecting Magistrates’ courts in England (but not Wales at the moment).

From tomorrow (Wednesday 15th May) many Magistrates Court cases will be delayed, the cause being a triage process for defendants being transferred from police custody suites to the Magistrates’ Courts and then likely to be transferred to prison. We understand SERCO will do the triage and priority will be given to defendants in the most serious cases.

The Ministry of Justice confirmed that defendants who are not prioritised will be released on police bail. The Ministry of Justice also said that it is expected to have some impact on defendants already on police bail, but cannot say to what degree.

Regrettably practitioners will not know if their clients’ cases will be effected and delayed for sure until they arrive.

We are awaiting further information regarding legal aid and wasted costs.

Details are at this stage lacking and we do not have specific details on which courts other than it is an England-wide policy. We must therefore assume it will have an impact of every Magistrates’ Court in England. Although similar policies have been used regionally before to our knowledge this is the first time it has been deployed on such a wide basis.

Members may wish to await confirmation their client will be in court before attending where possible to avoid wasted trips and extended waiting at court at a time when the criminal legal aid sector lacks the capacity to deal with increased volumes of work as a result of decades of underfunding.

We are appalled of the state of our Criminal Justice System and have been campaigning on this from our inception and whilst we recognise the need for some action, this is a symptom of a systemic problem caused by more than 40 years of neglect of our Criminal Justice System.

We remain deeply concerned about the future, or lack thereof, for the legal aid sector and call on the government to not only deliver in full on the recommendations of the Criminal Legal Aid Independent Review, but go further and invest much needed resources not only into Legal Aid but the wider CJS as a matter of urgency to save our once world-leading Criminal Justice System.

Guest Blog 93

Process or Fairness?

After having sat for a year or so as a magistrate in the Adult court, I had my first courtroom experience sitting as a single justice in the Applications court. This unnerving introduction was in the courtroom set aside for such hearings and involved reading and signing myriad warrants including police search warrants, mental health detention and batches of Utility Company right of entry applications which recently have been subject to revised guidance. It was unclear to me if this court was open to the public or the press. But with the introduction of the Single Justice Procedure (SJP) in 2015 designed with admirable ambition to provide efficient and speedy summary for low order, non-imprisonable offences (mainly traffic) that the format and pace of justice moved up a gear!

My first introduction to SJP was quite an instructive one. Located in one of the back rooms at the court with two computer screens on adjoining tables feeding in the days listings of offences was the Legal Advisor. I was more than a little startled to discover that the applicable fines on a finding of proven, beyond reasonable doubt had already been filled in advance! The offences were mainly speeding and driving with No Insurance, with equivocal on line pleas set back for a trial date. As the listings numbered in the dozens, I felt under pressure to complete each case submitted in mitigation, often heart rending and at times near unreadable. It felt unsettling and unethical to my understanding of open and accountable justice. It was clear that the public/press were excluded from this procedure.

One of the more concerning aspects of the SJP process that I struggled with was defendants submitting incomplete information, (literacy and language barriers appeared prominent reasons for this) particularly on financial means. This set in motion an automatic default calculation of 'presumed income' of £440 which often meant with fines, costs and surcharge that sums of money of hundreds of pounds would be deducted on notification. I raised this concern during this period, but the pressures of time meant that further discussion was considered inappropriate.

Often pleas of mitigation seemed to be solidly grounded, that is to say domestic circumstances that might elicit a more favourable penalty in open court would not be fully explored in what was a often experienced as a hothouse sentencing environment.

The submissions to the SJP are premised on early guilty pleas, but where equivocal pleas were entered in my experience the matter was either put back or listed for the traffic court.

But the decision on guilt was that of the single magistrate, with the formulaic 'proven ' entered on the sentencing outcome notice. My expressed concern again was that the sheer weight of SJP cases often meant decision making was hurried and presumptive.

I seldom heard any murmurings of doubt on the SJP process from colleagues, other than the volume of cases dealt with and my reservations when shared on open justice appeared to be side-lined when SJP was considered low end offending that merited process over fairness to defendants.

The Magistrates Association did pick up, albeit late in the day, the disquiet over utility entry warrants and this acted as a catalyst for opening up the SJP to wider scrutiny and openness.

All magistrates on the Adult court rota (6 months timeline) were assigned SJP sittings. It was assumed at first that half day sittings would be sufficient to accommodate this. But once the stark reality of increased volume prosecutions kicked in, expanded to include matters such as TV licencing and with tentative plans to invoke motoring disqualifications (with rights of appeal) as integral to this, whole day sittings were included. SJP was favoured by some colleagues who appeared to revel in the intensity of such busy sittings. But many others (myself included) felt distinctly uncomfortable with this form of closed and opaque justice.

By 2020 the number of case heard via SJP had reached a staggering 535,000 according to the court service and any judicial murmurings of residual concern seemed to go unnoticed. I was often bemused by listening to some of my colleagues in the retiring room extol with almost fetishistic glee the number of such cases they had completed (processed!) in one sitting. I did flag up my misgivings on how this might square with open justice, in the sense that the financial and penal consequences of a criminal conviction were impacting unfairly on those with the least means. But such concerns seemed not to matter. I do not want to impugn the motives of colleagues, given the busy court that I sat in. But SJP seemed very much like a Cinderella feature, with an eager willingness by some to change their rota so that the enthusiasts had the choice to sit.

The House of Commons Justice Select Committee in its 2022 report supported moves to widen access to justice and the Magistrates Association have more recently sought to offer much needed solutions to the current impasse on open and accountable justice, especially around SJP. But it is significant that this move was as a result of some sterling investigative journalism, which meant this unjust gadfly in the magistrates courts now looks like it might be taken more seriously and who knows rectified?

A Former Magistrate

MoJ Dissembling? Surely Not!

I see that Danny Shaw has written a blog piece on a bit of smoke and mirrors the MoJ are in the habit of using:-

The fallacy of falling reoffending rates

“Hugely significant.” That was the description given by Antonia Romeo, the most senior civil servant at the Ministry of Justice (MoJ), to the decline in reoffending rates in England and Wales over the past ten years. Among adults, they have fallen from 30 per cent in 2010-11 to 24 per cent in 2020-21. For those aged 10 to 17, the drop has been even more marked, down from 40.9 per cent to 31.2 per cent.

Giving evidence at the Commons Justice Committee, Romeo suggested that the reduction was because officials in her department had done “a lot of work…on reoffending and what works to get people not to reoffend any more." She said: “This is getting them into a job and accommodation, managing the Through the Gate process, and getting them off substance misuse.”

The Justice Secretary Dominic Raab has been even more effusive. When figures were published last October showing a two percentage point drop in reoffending levels in 12 months he tweeted: “This shows that our investment in drug rehab, training in prisons and offender employment is working and helping make our streets safer.”

Does it show that? Look closely at what reoffending rates really measure and it’s clear that the reduction is nothing to boast about - it’s simply a reflection of a wider failure to deliver justice. That’s because the reoffending rate is a misleading term. It is not worked out by counting what proportion of offenders commit a further crime; it’s based on how many are caught and sanctioned.

Tracking the cohort

The MoJ calculates it like this. Every three months it adds up the number of people who within that period have been: cautioned, reprimanded or issued with an official warning by police; given a non-custodial sentence at court, such as a fine or community order; released after serving a prison sentence. This ‘cohort’ of offenders is then tracked.

If, in the following 12 months, anyone in the cohort commits an offence for which they are convicted, cautioned or given a police warning they are officially classed as a reoffender. The penalty or conviction counts only if it’s issued within the initial 12 months or a six-month period afterwards. Some offences, like breaches of court orders, don't count. The number of reoffenders is then divided by the overall number of offenders in the cohort to produce the reoffending rate.

So, the reoffending rate is really the re-conviction or re-cautioning rate. It all depends on the offender being arrested and given a police warning or successfully prosecuted in the courts. As such, reoffending rates vary according to the effectiveness of the 43 police forces, the Crown Prosecution Service and the criminal courts.

But don’t take my word for it - even the MoJ acknowledges that the methods are imprecise and understate the reality of reoffending. “Measuring true reoffending is difficult,” says the department’s ‘Guide to Proven Reoffending’, issued in 2017.

“Official records are taken from either the police or courts, but they will underestimate the true level of reoffending because only a proportion of crime is detected and sanctioned and not all crimes and sanctions are recorded on one central system. Other methods of measuring reoffending, such as self-report studies, are likely to also underestimate the rate,” the document says.

Detections and sanctions

To understand the extent to which reoffending rates may have been affected by the performance of police, prosecutors and the courts, just look at overall levels of crime detections and sanctions compiled by the Home Office as part of their 'outcome' figures.

The methods changed in 2014-15, so that’s the earliest comparable date. That year, 15.5 per cent of crimes recorded by police led to a suspect being charged or summonsed to appear in court. A further 4.6 per cent resulted in a formal out-of-court disposal, such as a caution.

Over the next seven years, as has been well documented, the charge and caution rate plummeted. In the 12 months to the end of September 2022 it was 5.5 per cent and 1 per cent respectively.

So, over a seven-year period there was a 3.6 percentage point reduction in caution rates and a 10 percentage point decrease in charging levels. Without a charge, of course, there can’t be a conviction, so convictions, as a proportion of all crimes, will also have fallen substantially.

You can probably see where this is heading. With such a dramatic decline in cautioning and charging rates, it’s no surprise that reoffending levels (measuring the proportion of offenders who have been cautioned or convicted again) have fallen too. In 2014-15, the MoJ calculated the overall reoffending rate to be 30 per cent. The latest figures, covering a cohort of offenders in January to March 2021 who were tracked for the following 12 months, show the rate fell to 24.3 per cent, a 5.7 percentage point reduction in reoffending.

Timeliness is also a factor. Criminal cases are taking longer to resolve because of record court backlogs which started growing in 2019. It takes around 180 days, on average, for an offence to be dealt with by magistrates compared with 150 days in 2014-15. For Crown Court cases, it’s gone up from 250 to 350 days. That means an increasing number of offenders who committed a further crime will not have been counted for the purposes of the reoffending data because they weren’t convicted within 12 months or the six month follow-up period.

Bleak reality

If overall charge and cautioning rates had been broadly stable, then this “hugely significant” reduction in reoffending rates, as the permanent secretary put it, would indeed be hugely significant. It would suggest that external factors, such as improvements in rehabilitation, employment and accommodation support, were playing a part - but there is no evidence that they have. The evidence simply, and bleakly, points to the fact that fewer offenders are being caught and brought to justice, while delays in the criminal justice system are masking some reoffending that would previously have been included.

It’s time ministers and officials acknowledged this. They should start by re-labelling ‘reoffending’ rates to avoid confusion and misinterpretation: they are re-conviction and re-cautioning rates. Better still, they should look for an alternative way to measure the true level of reoffending through a combination of anonymous surveys of offenders, information from probation staff, arrest figures, and re-caution and re-conviction data, adjusted to take account of overall caution and charging trends.

The fall in reoffending rates is, sadly, not the ray of light the Ministry of Justice was hoping for and no one should be misled into thinking that it is.

PS: Isn't it odd that for the purposes of reoffending data, an offender's time in prison doesn't count? The official reoffending clock starts on release from jail or at the moment the court orders an offender to serve a sentence in the community. So, when comparisons are made between reoffending rates for those who've served prison sentences and people given community penalties they never take account of the time spent in custody. That doesn't seem right. One of the benefits of prison is that while locked up a person is not committing crimes in the community: surely the reoffending figures should reflect that.

Danny Shaw

An Existential Battle

If you work in probation you will be very familiar with the court process and almost certainly the legal profession in the shape of solicitors and barristers. Many of us with some service under our belts will be aware of significant changes in process over the years and in particular cuts in Legal Aid and court closures. 

Things have come to a head in recent weeks with barristers withdrawing their labour. Just as with probation, the press, public and politicians don't understand, or choose not to understand, what's going on and the truth of the situation.

This set of tweets from @edwardhenry1 yesterday sets things out in stark detail and we should all be concerned, not least because it will affect us all, and clients especially. (I have made adjustments to aid clarity).  

The Criminal Bar facing oblivion.

Max J L Hardy wrote perceptively that the public would get a distorted impression of our justice system because of the #WAGATHA trial. Criminal justice is in crisis. And @jimrobottom suggested the same for the mass of civil litigation.

The Tabloids don’t want to run this narrative. Clichés work. People, without wealth or financial resilience are far more likely to get dragged into a Criminal Court, a Family Court, or an Employment Tribunal.

Then, they’re not likely to encounter a ‘fat cat lawyer’ but a junior barrister and/or a high street solicitor, from a small to medium size practice. We’re not talking Baroness Shackleton or Lady Ward.

I’m not qualified to speak about family or employment but imagine that family law practitioners who do not deal with ‘Big Money’ cases are in the same position, or soon will be, as the criminal bar.

Advocates practising in crime are an odd bunch, but likeable. As a rule they like their clients, and care deeply about them. Strange as it may seem, some have been accused of caring for their clients more than their families.

It’s not hype, but reflects a brutally demanding job, which can prove to be obsessional. Like Captain Ahab pursuing Moby Dick, some advocates relentlessly chase after that tantalising fact, or issue that might turn a case. Holidays are sacrificed, as are children’s childhoods.

You are told, as I have been, that you aren’t present, even when you’re actually there, because your mind churns that case or question over & over.

You’d have to be mad to practise in crime. I tried, from 2004 onwards to discourage my pupils from continuing in it, and to transfer. Not one did. Well done btw @MaxJLHardy

My first pupil, the wonderful Jake Hallam QC, started in practice in 1998. I could see then that the GFS [Graduated Fee Scheme for legal aid] would impoverish criminal practitioners as so much was left unpaid. The rates then set never kept up with cost of living & if we aren’t 40% down from 1997 I’d be surprised.

I had more success dissuading my adult sons from following me into the Law. They saw, all too sadly, the toll it took on their childhood, their parents’ marriage & the precarious financial fortunes of a self employed individual or sole trader.

I adore my job, and have deep affection and genuine respect for my colleagues. Every pupil who disregarded my advice and went on to greatness at the Criminal Bar - and those few who sadly did not in spite of their courage, determination and flair, I deeply admire and love.

Because I know what it’s cost them. The price you have to pay whether you succeed or fail (& chance plays a part in that.) So when a Politician derides what we do, I don’t care. I know my value, & part of that is what I’m worth; & I know my colleagues’ treasured value too.

The destruction of a profession, of an Art that can be traced to the prophet Daniel, through the Graeco-Roman era to our own time is shameful. If politicians don’t want to preserve an Independent Bar, incompetence & corruption will follow. Who benefits?

Back to that odd bunch of advocates. They’ll include the brief, hot on detail with an eidetic neuro-diverse mastery of regulations, those who can recite the codes of practice, and those who can hyper focus to a microscopic degree. Then there are those who trust nothing

Not because they are conspiracy theorists, but because they’ve been told “nothing to disclose” too often when there is. Those who venerate Marx & those who espouse anarcho-libertarianism meet as one. It’s a broad church. The link? They believe in Justice & the Rule of Law.

That’s ultimately what compels them to defend, whatever the personal cost, to keep the stream pure, to hold the prosecution to account. A word here about prosecution counsel.

A very considerable proportion of Barristers prosecute & defend. That’s why the Independent Bar is of incalculable value. It’s not partisan. I no longer prosecute but I grew up in the preeminent prosecution set, renowned for its fairness.

Pros Counsel are atrociously paid, & not enough is said about it. You can prepare a case & not get paid if it’s tried at a time you can’t do. The Government’s long term strategy is a mystery. Public Defenders & Pros cost tons more than the Bar. They’re just happy exploiting us.

But it will eventually come to an end. Even altruists will be deterred. The Criminal Bar shall die. No mistake. Then what will those in the other branches of the Bar say? What a pity? Such a shame? It’s time for the Inns and the whole Bar to come to the aid of CBA [Criminal Bar Association].

The Bar Council, paradoxically, might have put on a better show, but there are always those dependable in a tight corner, & others who (despite the best of intentions) are not.
@Ed_LeveyQC has always supported the Criminal Bar & @seanjonesqc is a legend. But we need more.

This is an existential battle. If we are really one Bar, kind words about how much the Criminal Bar is admired, with wistful regrets intimated of envying what we do, will be pure guff unless the whole Bar bends its efforts & potent influence on our behalf.

The leaders of the SBAs [Specialist Bar Associations] and others of titanic reputation & standing in other fields might like to reflect on what we’re all about to lose.

Edward Henry QC

View From the Other Side

Whilst we're continuing to highlight significant dissatisfaction within probation staff, I see the Revolving Doors charity has recently published a report mostly looking at things from the clients point of view. The report is rather neatly summarised by Russell Webster here:-  

What next for probation?

Revolving Doors has just (4 April 2022) published the first report from its Lived Experience Inquiry into Probation. The report is based on the views of 141 people with lived experience of probation and 35 probation practitioners. The report focuses specifically on people in the ”revolving door”, those who commit repeat and often low-level crime that is driven by poverty, trauma, unmet health needs, and its purpose is to:

“support the development of a probation service that is responsive to both the root causes of crime and its consequences, such as mental ill-health and problematic substance use, that drive the revolving door of crisis and crime.”

The report highlights areas of service design and systemic and cultural issues which, the authors (Philip Mullen, Nathan Dick & Andy Williams) argue can make a real difference to the success of the probation service. The report focuses on four key elements of the probation service:

1. The culture of probation
2. Probation’s role at court
3. Probation in the community
4. Prison resettlement

The culture of probation

The Inquiry reports a strong feeling that the traditional probation balance between assessing/managing risk and supporting rehabilitation had shifted to be much more weighted towards risk management, to the neglect of providing or signposting people to the support needed to address root causes (such as homelessness and drug & mental health issues) that drive crisis, crime, and reoffending.

A significant number of people consulted for the Inquiry described probation as a form of policing, and in some cases as an agency that actively spied on them, significantly reducing their willingness to openly discuss their needs and the help they need to better manage these.

There was also widespread frustration at the number of times their probation practitioners changed over the course of their supervision, limiting their ability to build the positive and trusting relationships necessary to feel comfortable in talking openly about their needs, any setbacks, and the kinds of support they needed.

“For me, the probation service is like another arm of the police service, they just check on you, check on your tag… these guys are like the police services, and it’s not about rehabilitation.”

Interspersed with these criticisms were many examples of probation practitioners described as going above and beyond what people under supervision expected of them, for example through sending letters to them whilst they were in prison to build the foundations for a positive relationship, taking the time to listen to their aspirations and ambitions and researching opportunities to help them reach these, and taking the extra care to send letters, make phone calls or attend appointments.

“It helped that my [probation] worker stuck with me, they were not going to give up on me and put structures into place. It also helped that they were real, upfront and honest with me, and that they helped me access the support workers and medication I needed.”

Probation at court

Interestingly, most people were unaware of the role probation played at court and did not see them as present or visible within the court setting. Only a small number of people understood what a PSR entailed and recalled having an in-depth conversation with a probation practitioner to inform a PSR.

Community supervision

The inquiry heard “countless” life-changing descriptions of Probation, of proactive probation practitioners going above and beyond to facilitate people’s access to services to address their needs and support them to reach their aspirations.

“My probation officer, it’s a calling to her, she has too many on her caseload but she goes further and beyond.”

However, there were also many accounts of when probation officers were unable to effectively advocate for their access to vital local services, such as housing, because of insufficient knowledge about these services or how to refer into them, or simply because of a lack of time to take joint steps (e.g., a telephone call together or accompanying them to a meeting) to help address barriers in accessing services.

Several people described their relationships with probation as “tick-box”, with meetings rarely lasting more than 5 to 15 minutes.

“You should be getting something out of probation, not just going there as a punishment. You need to be given time [to talk].”

Prison resettlement

Almost all the people consulted for the inquiry had experience of multiple short prison sentences of less than 12 months. Most experienced the same issues when it came to their release from prison; preparation happened too late, communication with their probation practitioner was challenging and happened too late, and there was a lack of support around practical issues including housing, healthcare, and securing an income (either through employment or social security).

“Most offender managers don’t get involved until 28 days before your release. How can you build a relationship in that time? You need someone you can offload to and get all of the s**t out to.”

The report sets out four key principles aimed at improving this situation:

1. Providing consistent relationships throughout custody and on release.
2. Being proactive in communication.
3. More careful planning for the day of release.
4. Explore the potential of departure lounges.

The views of probation practitioners

Probation practitioners echoed some of the same views as people with experience of being on probation. Many felt a fairer and more equal balance between risk management and supporting rehabilitation needed to be struck. They highlighted lack of resources as a key reason for this, citing high caseloads and a feeling of being excluded from policy development.

"As we have big caseloads, we are not spending as much time with people, bogged down with a load of paperwork. We often have to sacrifice time with someone else to give a person time.”

Conclusions

The report includes 21 recommendations for the development of a probation services more informed by the experiences of people on probation although the authors are careful to credit the Probation Service with an existing commitment to follow this path through its Engaging People on Probation (EPOP) programme.

A View From Both Sides

Thanks go to the reader for pointing me in the direction of the latest edition of 'Magistrate' which contains an article by former probation officer Mike Guilfoyle.

The early days

A short time after qualifying as a social worker in 1990, I found myself employed as a probation officer with the Middlesex Probation Service. Part of my probationary training involved shadowing one of my more experienced colleagues in a busy North London magistrates’ court. He was called to another court in the course of his duties, and I recall feeling a cold chill at the unerring gaze of the stipendiary magistrate (now district judge) as one of the defendants appeared from custody, looking bedraggled and sounding argumentative, after a night spent in a police cell. He was one of the ‘regulars’ who appeared in the dock, a homeless man with a troubled history of alcohol dependency, who would smash a shop window and await arrest, to secure a warm overnight stay with the local constabulary. The ‘stipe’ impatiently asked if the probation service could ‘do something for this indigent alcoholic’ (words with a vaguely Dickensian overlay) as he needs to be offered ‘help and assistance’ as punishment clearly was not working! He was sentenced to a day in lieu, and I agreed to go into the cells before he left to interview him, with a view to offering such help and assistance as I could muster.

In the event, when I introduced myself as his ‘new probation officer’, anxiously hoping that he might respond to an approach aimed at his vulnerability, persistent offending and evident welfare need, he harrumphed, ‘I do not need any probation officer to tell me what to do’ and returned to the streets adjoining the probation office. He sadly passed away a while later having collapsed in those very same streets while intoxicated.

Around the same time, I was called upon to prepare a pre-sentence report on a female defendant who was remanded in custody and was facing sentence at the crown court. I was encouraged to attend the crown court in person to support my recommendation (as it was known at the time) for a three-year probation order, as my line manager had pointedly noted the welfare needs of the defendant outweighed other sentencing considerations. The crown court judge invited me to speak to my report at the sentencing hearing and politely but firmly questioned me on why he should follow my recommendation in light of the gravity of the offences.

He retired to consider the mitigation outlined in legal representations centred on the defendant’s abusive upbringing (the defendant’s counsel had gasped in disbelief when I handed him the report!) and my oral submission.

Passing sentence he noted ‘these offences are far too serious for a probation order’ (community orders had yet to appear on the judicial landscape) but he noted Mr Guilfoyle’s comments and had reduced the sentence of imprisonment from 10 to seven years! Imagine my later surprise, when a well-thumbed copy of the Justice of the Peace magazine, which was regular lunchtime reading in the probation office, alluded to this case, with the sentencing judge bemoaning my ‘unrealistic sentencing proposal’ and opining as to just how ‘out of touch’ the probation service was becoming (or was that just me?) in its report writing!

Political imperatives and organisational change

I cite these two examples of my own early probation practice simply as a way of briefly outlining how much then changed in subsequent years in the way that the probation service, and in particular its role in the court setting, reflected wider organisational and political imperatives. This included the first of many significant criminal justice acts in 1991 that buffeted the service in an attempt to ‘toughen up’ sentencing options; so that ‘if an offence was serious enough a community penalty may be imposed’, was now stacked with a portfolio of added requirements. The judicial maxim of ‘serious enough’ now entered the lexicon of report writers keen to ensure that the confidence of magistrates and judges, and indeed the wider public, was not jeopardised! Arrangements for sharing good probation practice with the judiciary often meant attending local magistrates’ liaison committee meetings. Although at times I picked up more than the odd jarringly dissonant viewpoint, with one notable meeting abruptly ending when the topic of disparities in custodial sentences between adjoining courts, also known as concordance rates, was gingerly raised!

With the creation of the National Probation Service in 2001, I had already moved to a central London probation office, and now found myself undertaking weekly court duties in two magistrates’ courts (both since closed). Amazingly, for a time, although stand down or oral reports had long continued to feature for those defendants appearing for minor offences but requiring some probation input (mainly assessing suitability for community service – symbolically changed in the 2001 Act to a community punishment order), fast delivery reports/same day reports became more evident in court practice and completing three or four of these reports in a day was far from uncommon. A tetchy district judge (a judicial role introduced in 2000) once mildly reproached me, for a proposal in a handwritten report, which she found difficult to read, but was disposed to go along with, as Mr Guilfoyle usually has a keen eye for ‘those trying to pull the wool over the court’s eyes, and some form of rehabilitation is usually his starting point!’

There followed almost incessant top-down organisational changes, a facet of an ever-changing probation service (the Ministry of Justice subsuming prisons and probation into one governmental department in 2007). A move notably set in train by the home secretary John Reid, who before an audience of inmates at HMP Wormwood Scrubs the previous year had described the probation service as ‘poor or mediocre’. This had prompted me to write to him directly to seek clarification for what I felt were his ill-judged remarks, only to receive a formal signed response from the Secretary of State that ‘I should not believe everything I read in the papers’!

I retired from the probation service in 2010, after 20 years as a main grade probation officer, in many ways relieved to be free of what I felt were some of the more disfiguring aspects of over-centralised political and managerial change. But I kept myself busily informed of how the service was responding to these changes by remaining an active member of the probation union, Napo, and writing articles, including a monthly blog post for the Centre for Crime and Justice Studies and book reviews on probation practice and policy for the Probation Journal.

Being sworn in as a magistrate

I recall with measured pride leaving the famed court one of the Central Criminal Court (Old Bailey), having been sworn in as a magistrate to sit on the South East London bench. One of the more memorable lines from the judicial oath which I was required to swear was ‘I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.’ With this worthy injunction firmly in mind, I approached the day of my first sitting as a winger in the adult court with some mild trepidation and anticipation. I sought out the chair who, sensing my slight discomfort put me at my ease, stating, ‘just think how the defendant might be feeling on their first appearance’. I have a fuzzy recollection of feeling ‘elevated’ on the raised bench and made a point of seeking out in my field of vision the probation worker, now on the front line of probation practice.

The informed readership of MAGISTRATE will have many opinions on how judicial confidence in the probation service might be improved. Maybe if the policy of the MA to fully enact section 178 of the Criminal Justice Act 2003, to enable sentencers to more effectively review community orders made by the court, is brought into effect this might positively impact on how magistrates better assess the efficacy of community orders. The scars of probation privatisation, with consequential staff shortages, high caseloads and low morale are still experienced as pressing workplace issues for frontline probation staff, and the operational challenges posed to the criminal justice system by Covid-19 remain significant.

Back to the Future!

Recent legislative proposals on the role of the probation service contained in the Police, Crime, Sentencing and Courts Bill (2021) do have a Back to the Future look to them! But I believe they offer a model of practice that is at least evidence-based and person-centred and in which the professional relationship with those under probation supervision is seen as the cornerstone of change, together with the timely enforcement of orders, the needs of victims and more effective engagement with local courts. A newly unified National Probation Service might well replicate some of the more unwelcome centralism noted in earlier iterations of probation service reorganisations, when probation should be fundamentally, in my view, a service located in local communities, where its ties and links to other agencies like the courts are strongest.

When I sit on the local bench, I still retain a firm commitment to ‘do right to all manner of people’ and try always to remember that justice should be seen to be done – while at the same time aiming to remember, heedful of my first hapless judicial encounter as a hard-pressed court duty probation officer with a harrumphing court user, that trying to do things better is not a bad place to start from!

Mike Guilfoyle JP

CJS and Mental Health

Last month a major report was published on mental health issues people had whilst moving through the criminal justice system. No agency came out of this well as the press release outlines:-

Criminal justice system failing people with mental health issues – with not enough progress over the past 12 years

• Thousands of people with a mental illness are coming into the criminal justice system each year but their needs are being missed at every stage.
• “Broken” system for sharing information between agencies, with confusion over data protection rules and incomplete/inaccurate records.
• Shortage of services and long delays to access them – made worse by the pandemic.
• Unacceptable delays in psychiatric reports for court and in transferring extremely unwell prisoners into secure mental health hospital beds for treatment.

A major inspection has found poor support for people with mental health issues as they progress through the criminal justice system in England and Wales.

Inspectors labelled the findings “disappointing” and said too little progress had been made since the last review in 2009.

The inspection was conducted by:

HM Inspectorate of Constabulary and Fire & Rescue Services
HM Crown Prosecution Service Inspectorate
HM Inspectorate of Prisons
HM Inspectorate of Probation
Care Quality Commission
Healthcare Inspectorate Wales.

Inspectors looked at more than 300 cases from six regions, interviewed 550 professionals, and heard from 67 people with mental health issues who had been through the criminal justice system.

Speaking on behalf of all six inspectorates, Chief Inspector of Probation Justin Russell said: “The criminal justice system is failing people with a mental illness. At every stage, their needs are being missed and they face unacceptable delays in getting support. Not enough progress has been made since our last joint inspection 12 years ago to put right these critical shortfalls.

“Police forces, prosecutors, prisons and probation services all assess individuals in different ways, which leads to gaps and inconsistencies. Even when mental health needs are identified, the information is not always recorded fully or used to make effective decisions.

“There are significant problems in the exchange of information in every agency and at every stage of an individual’s journey in the criminal justice system. This part of the system is broken and needs to be fixed urgently.”

The lack of a common definition of mental ill health means nobody has an accurate picture of the numbers of people with mental health issues in the criminal justice system, or the collective needs or risks posed by these individuals.

Inspectors found a myriad of systems are used to screen and assess people as they are arrested, charged, sentenced and supervised. Incomplete or poor records mean individuals might not receive appropriate treatment, charging decisions are affected, and there are delays to court proceedings.

There is widespread confusion over confidentiality and data protection rules – leaving agencies unable to access pertinent information and leading to poorer mental health outcomes.

Inspectors interviewed police officers who said they were unclear when they could share information about an individual’s mental health with the Crown Prosecution Service. This was despite the Data Protection Act (2018) including an exemption for sharing data for justice purposes. This gap means prosecutors, defence lawyers, judges and magistrates can make decisions without crucial details.

Poor information-sharing hampers work in prisons and probation services too. As a result, prisoners transferring in and out of prison do not get seamless support with their mental health needs. Probation practitioners reported their work was often hindered because community mental health services would not allow them to access information about the individuals they supervised – despite the fact these requests are lawful.

The inspection found delays are common at every stage of the criminal justice system. Courts face long waits for psychiatric reports, which are used to make sentencing decisions.

The shortage of good-quality mental health provision leads to “unacceptable delays” for individuals accessing services.

Inspectors found extremely unwell prisoners were often left in prison instead of being transferred urgently to mental health hospitals. Delays were often caused by a lack of medium and high-security beds; the mental health of these prisoners often further deteriorated as they waited.

Inspectors have called for urgent steps to be taken to address the situation, to meet the 28 day targets from first assessment to transfer now laid down in NHS guidelines.

Black, Asian and minority ethnic people are both overrepresented at every stage of the criminal justice system and at comparatively higher risk of mental illness. Inspectors found a lack of specialist services for these individuals.

Inspectors concluded that not enough has changed in the 12 years since the last joint inspection. However, they did note improvements in some areas.

Inspectors welcomed the roll-out of mental health liaison and diversion services in police stations and courts, and recent initiatives to increase the number of Mental Health Treatment Requirements given by the courts. There has also been a significant fall in the use of police custody as a “place of safety” for people in mental health crisis.

Inspectors found police officers had a good understanding that minor crime – particularly crime caused by mental health issues – could be dealt with using a health care approach.

Mr Russell concluded: “Criminal justice agencies need to make major improvements to the way they work with people with mental health issues.

“If someone is charged, they need to understand and be able to participate in the criminal justice process. An individual may need additional support to understand the questions put to them during an investigation or may lack the mental capacity to plead or stand trial.

“The criminal justice process itself can have a severe and negative impact on someone’s mental health, especially if they are already unwell. Justice agencies should act in ways that do not make matters worse, for example they should help to reduce the risks of suicide and self-harm, which we know to be high in criminal justice populations.

“The Inspectorates have made 22 recommendations following our joint inspection. We urge police forces, the Crown Prosecution Service, prisons and the Probation Service to work with the government and NHS to improve delivery for people with mental health issues in the criminal justice system.”

Quotes from people with mental health issues who have been through the criminal justice system (all names have been changed to protect identities)

On arrest:

• Filip said he was left alone for three days in police custody. He spoke to a mental health nurse briefly about having suicidal thoughts. He said: “(Arrest) was the lowest point in my life. (It was) unbearable, shocking… full of worry and fear… I did not understand what was going on in my mind.”

• Marcus found the experience of being arrested: “exhausting, confusing and frightening.”

• Sammy said: “It’s only reflecting back I realised how bad it was… It traumatised me for a long time, how I was handled (in the police station) and treated… I was disassociated, detached and suffering psychosis and anxiety. They (police) didn’t notice… they interviewed me anyway. For months after, I’ve had panic attacks and nightmares.”

On courts:

• George said: “Courts are eerie places, everything feels unnatural and on edge and that doesn’t help with anyone’s mental health, even if you consider yourself to have good mental health.”

• Luke said: “I was on remand for eight months, and going back and forth from court four or five times a month and always ending up with a new pad-mate (cellmate). It was a real struggle, as I didn’t know who I was going to get. It’s the last thing I need after having my life dragged out through court.”

In prison:

• Wilson described informing his block manager that he has Asperger’s syndrome. Wilson said: “They just gave me anti-depressants to shut me up and fob me off.” He wrote to the mental health team and was told he did not quality for help, despite being on medication for anxiety and depression for eight or nine years. Wilson said: “I asked to see a counsellor, which took five months to process – only to have an appointment where they didn’t show up… I sat in my cell full of anticipation and anxiousness.”

• Lilly commented that when a prison officer stopped and talked to them, it demonstrated that someone cared. She said: “Just having a trained officer to chat to for five minutes, to ask how you are doing and to talk to, really does make a big difference. It doesn’t have to be someone from the mental health team even.”

• Steven said: “The constant noise in prison forces tension on you, in an already hostile existence.” He described an incident where he had a mental health crisis: “My cell bell had been going off for over four hours… all I wanted to do was talk to somebody, a listener [this person resides in prison and has been trained by the Samaritans to offer a listening ear]… it was the lowest point of my prison mental health… (I) felt like I have been denied air to breathe.”

On probation:

• Several interviewees reported that they felt the Probation Service was “on their side”. Filip said: “She (probation practitioner) has taken into consideration my view and has given me the feeling that I have a voice… (this) impacted massively on my mental health”.

• Brian said: “Probation knew my struggles with drink and have played a key part in helping me stay sober and finding a healthier way to deal with my mental health.”

• However, others felt talking about their background with a probation practitioner could cause trauma. Cooper said: “There is no point bringing up shit from when I was a kid… this causes mental health problems.”

• Jakob said: “I have been moved from probation officer to probation officer and I sit there wondering if the (criminal justice) system has given up on me. I have no belief in the system or believe there is genuine care there for me and my mental health.”

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From the report:-

Probation practitioners are not mental health experts, but they do need transferrable skills that they can use to help individuals turn their lives around. We found that there were significant gaps in the knowledge and understanding of mental health work among probation practitioners and managers. In our survey, 70 per cent (38/54) of practitioners interviewed reported that they did not have access to effective mental health learning.

From our case reviews, we concluded that management oversight was either absent or ineffective in 64 per cent (34/59) of the inspected cases.

We found that senior leaders in the NPS were familiar with the overarching national strategy and priorities. In our opinion, however, this knowledge and intent was not actively driving local policy.

We found that just under half of the cases reviewed did not contain a comprehensive analysis of mental health needs. Practitioners need to be better equipped to talk to individuals about their mental health problems and understand their specific needs.

The cases reviewed showed that intervention plans needed significant improvement.

Individuals were not always given the opportunity to contribute and their diversity needs were often overlooked... We were not satisfied that enough time had been spent with individuals to help them to fully understand the requirements of their licences or community orders.

Inspectors from HM Inspectorate of Probation reviewed 60 pre-sentence reports prepared by NPS court staff in the inspected areas; 48 reports were on men and 12 were on women. The vast majority (83 per cent, 50/60) of the reports reviewed were short format reports completed without a full OASys assessment. The mental health conditions identified were assessed as having a considerable impact on day-to-day functioning in just over half of the reports reviewed. Almost a quarter of reports were prepared on the same day as the plea or
finding of guilt.

Overall, the quality of reports was insufficient.

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This was a recent blog contribution in response:-

For me this is an issue of poor investment in professional development and learning which probation has sorely devalued. In London prior to the pandemic we were subjected to "risk is everyone's business" sessions followed by even more sessions on risk assessment...then of course they invested in time and effort in OASYS QA which focused solely upon "what did you put in each box," prescribed guidance...then the focus has been on "outsourcing", getting your head around this new CRS referral process to outsource mental health work via "personal wellbeing services".

The mantra right now always seems to be about "referring people out"...we've been reduced to referral agents. The recent HMIP inspection on drugs pretty much mirrors the one on mental health. We don't know enough about these issues, how to asses them, or how to directly address them, because the organisational structure hasn't empowered us to address these problems..."refer substance abusers and those with mental health problems to another agency" is basically the bedrock of risk management plans. 

Do they equip and encourage us to deliver meaningful work to tackle these issues directly when confronted with them? Nope! Meanwhile the person is caught between attending a plethora of disparate agencies who each deal with their one issue badly, forced to attend under threat of recall. I'm frankly disgusted by how the service has denigrated the role of probation officer and those responsible in "the centre" don't see how responsible they have been for such poor HMIP inspections. We, the staff, shouldn't feel the burden of criticism here.

And another:-

70% staff lacking appropriate training
60+% cases without management oversight
~50% cases had no analysis of mental health needs

And these were cases prepared for & presented to the inspectors?!

Every time there's an inspection the lack of quality, competence & effectiveness never ceases to astound, yet nothing changes. It's as if operating at somewhere between 30%-50% efficiency/quality/competence is regarded as a triumph for which so-called 'leaders' are rewarded for their 'achievements'. Its shocking. And all paid for by the taxpayer.

A Manufactured Crisis

Preamble

I've been a bit pre-occupied of late on domestic matters, but noticed that yesterday for no obvious reason the blog attracted 4,698 hits. I can only assume it was connected in some way to the budget, the ending of the public sector pay freeze and the possibility of more cash for the MoJ. Or maybe it was a probation officer turning up in Eastenders this week, or angst over not getting contractual increments? Meanwhile, this from labourlist confirms what we've known all along about courts:-      

Covid made a growing backlog of court cases worse – but austerity created it

In the 18 years I spent as a probation officer, things changed a lot. Like most people joining the profession in 2002, I was initially motivated by the idea of rehabilitation, but court work was an essential part of the job.

Each week, my colleagues and I would spend around two hours interviewing those recently convicted. This was for a document known as a pre-sentence report: a detailed analysis of their offence, background, circumstances, risk to the public and proposal of what sentence would be most appropriate. It provided genuine opportunity for rehabilitation of those convicted and justice for victims.

Also once a week, each of us would spend the day in the local magistrates’ court writing a quicker version of this report for people convicted of minor crimes and furnishing magistrates with information about the people appearing already on probation orders. We were part of a functioning criminal justice system.

This came to an end for me in 2011, when Woolwich Magistrates’ Court, a ten-minute walk from the Probation Office, closed and the building was sold. Gradually, we saw a decrease in cases being heard quickly. By 2017, Greenwich Magistrates and Woolwich County Court had also closed.

Greenwich wasn’t alone in losing its court. When I began working for the London Probation Area, one of many names I was to be employed by, there were 320 magistrates’ court in England and Wales. Today, there are 165.

The sale of these buildings generated at least £223m for the public purse, but of course we are now seeing the real costs. Defendants, witnesses, police, lawyers and justices now commonly travel more than 50 miles to access local justice. Cases are taking years to be heard.

In June 2021, there were more than 60,000 outstanding Crown Court cases, and more than 386,000 in the magistrates’ court. It’s not just the loss of buildings that caused the court crisis. A complete failure to appreciate those working in the criminal justice system has led to staff shortages.

In 2020, inspectors rated all of the probation divisions as requiring improvement on staffing, with none of the areas fully staffed. High rates of staff sickness averaged 11 days per person, 50% of which related to mental health difficulties, and there were 650 job vacancies nationwide.

Many of these vacancies are likely a result of the disastrous changes made to the service in 2014 by Chris Grayling, who split the service in two, with half run by private sector agencies. The ethos of the organisation was changed, and six out of ten probation officers had a workload over the 100% target. Earlier this year, the services were amalgamated – but it’s not easy to put a broken organisation back together.

It was not as if the problems were unpredictable: Grayling ignored significant warnings from within his department to push through his reforms in 2014. And since then, MPs on the public accounts committee have said the reforms were rushed through at breakneck speed, taking “unacceptable risks” with taxpayers’ money. The justice committee has described the overhaul as a “mess” and the cause of “serious issues”.

The government has had to bail out the private providers at an estimated cost of £467m. I am one of many experienced probation staff who left the profession in this era – no longer recognising the organisation as one that could change lives, but rather one that had lost its identity and purpose.

Other areas of the criminal justice system face similar crises. For example, the Criminal Bar Association has warned that clearing the backlog is being hindered by a shortage of barristers. Falling rates of pay, in large part due to cuts in legal aid over the past decade, have led to an exodus from the profession. In the four years to 2020, the pool of criminal barristers shrank by 11%, from 2,553 to 2,273. It has also become an ageing profession, with 45% of barristers who specialise in crime aged 45 or over.

Of course, it suited the government to blame this on the pandemic. But coronavirus exacerbated an already growing backlog of cases – the pandemic didn’t create it.

The new Justice Secretary Dominic Raab now wants people to be able to look up their local court online and check how quickly cases are dealt with. The new national register will give scores on the speed cases go through the system, and on the ‘quality’ of justice served, measured by the percentage of guilty pleas before cases come to court, as well as the number of cases rearranged because of problems with the prosecution.

The ratings will initially cover the whole of England and Wales, but it is understood the Justice Secretary is keen on introducing scorecards on a more regional level, so that in future members of the public would be able to look at the performance of local courts.

Now, in my experience, people don’t generally give too much thought to courts until, for whatever reason, they need to attend court themselves. What you are supposed to do with this information is a mystery. If, as a victim, you see your local court is a poor performer, you can hardly choose to take your case elsewhere.

This feels like an attempt to blame those working in the criminal justice system for the problems that were created by the Conservative Party and their Justice Secretaries playing games with the services until they could no longer function properly. A score card won’t change that.

Kelly Grehan

Borough councillor in Dartford and a county councillor in Kent, a member of the LGA Labour Women’s Taskforce and a member of the Fabian Women’s Network Committee.

Newcastle Napo AGM 2021 Addresses

I notice the AGM addresses by the General Secretary and Chair have been published on the Napo website and I've selected what I feel are the most relevant parts:-.  

Good morning Conference, I’m Ian Lawrence General Secretary. Proud and privileged to be here with you all in person and to welcome those joining us remotely.

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Lastly, what about the crises being faced by Napo members right now, and that includes the relentless workloads being faced by our members in Cafcass and Probation NI who have common purpose in terms of their pay lagging behind comparable professions and who also need urgent action to redress that imbalance. I will report further to members about the progress in negotiations at the earliest opportunity.

Meanwhile, today I need to address the Broken Promises on Probation Pay. You all heard the comments by new Minister Malthouse yesterday, and I could see that you were overwhelmingly underwhelmed. Sadly, it was full of promises but short on commitment; much about the 4 pillars required to help rebuild the Probation service and the money being made available for that, but no mention of the fifth pillar, namely paying staff a decent wage.

I listened carefully to the debate yesterday and I look forward to taking note of the questions that you could not put to the Minister yesterday. I can assure you that Katie Lomas and I will deliver these in person at our meeting with him in a couple of weeks. I can hardly wait!

Because its time for us to make that stand that speakers in the debates spoke of yesterday. To stand against low pay across all employers obviously, but to build on the confidence that has been generated by way of our recent indicative ballot to reject the pay freeze and to reject the Probation Pay offer that I will be telling Minister Malthouse is an abject disgrace And we will also ask the Minister why, if other departments can agree multi year pay deals such as the MoJ, HMRC and Crown Prosecution Service, why can’t probation?

And we will also ask why it is that the Treasury has such a downer on Probation Pay. There are many potential answers of course, but here is one in my opinion; and its that they don’t believe that Probation staff will stand up for themselves, they don’t think that you have the the stomach for that struggle if it should come to it. Well, for those in high places I have a big message, that for the first time in recent history all 3 probation unions have returned indicative ballot results of between 86% and 99%, all 3 unions pointing in the right direction for further direct action if push comes to shove. Because its pretty straightforward:

Probation workers have had it with low pay, Have had it being taken for granted And are not prepared to see workloads and attrition rates remain at unsustainable levels And who cannot stand to see promising young PQIPS fold after a week in the job, mentally scarred by their experience and cannot tolerate vacancy rates in probation delivery units reach an all time high, and we will ask the Minister - how can you let this happen and what are you going to do to redress years of hollow promises to address low pay in the profession?

But I have an obligation to point out that we have more work to do to prepare for this new frontier that’s ahead of us; more work in tightening up our contact details for members likely to be involved in a trade dispute if it comes, and more work with our sister unions to build on the indicative ballot results, but Napo’s turnout in the consultative process gives me every confidence that we can meet the challenges set by the pernicious Trade Union Act, for that result was the highest turnout in Napo’s recent history and you can be be proud of where we have got to.

I expect that we will talk more about pay before this AGM is done, but for now lets send a very clear message to this Government. Probation staff need a decent pay rise and they need it now; no ifs, no buts, not next year,….. but now! For If you fail to pay people who do so much to protect our communities and try to help people turn their lives around, they may decide to vote with their feet because they simply cannot take anymore. We want to avoid that, so - reach a deal with us, show us some good faith and stop taking your loyal, highly committed staff for granted.

This AGM has again demonstrates why this union has such a proud heritage, and again its given you the opportunity to showcase the value of the work done by our members, and why those members need to be afforded the respect and dignity that they deserve.

I will be led by your judgement and your decisions, and in return I pledge to offer every ounce of my energy to this new, urgent campaign on Probation Pay. It’s a struggle that has sadly become necessary but one that you and your leadership group will embrace and pursue to the best of our ability.

Thank you conference,

Ian Lawrence

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Good afternoon to you all, whether you are in glorious 3D here in Newcastle or joining virtually from the comfort of your home or the relative discomfort of your office. I am so pleased that we are, yet again, trying a new way of delivering our AGM to make it as accessible as possible. The decision to run a fully virtual event last year was brave and while it wasn’t a complete success it certainly taught us something about how our AGM could become more inclusive. As you know it has been our practice for some time to move the AGM venue each year to share the burden of lengthy and costly travel around. This does mean that some people only attend an AGM when it is close by and some don’t attend at all, those with school age children or adult care responsibilities can particularly struggle. One of the things that struck me most after last year’s event was that some members said they were attending because the event was virtual and therefore accessible in a way AGM had not been before but another member said they felt more confident to speak at AGM when it was virtual. This told me something about the barriers to AGM attendance not being solely about the distance and staying away from home.

This year the threat of COVID has not disappeared and there will be members who aren’t advised to travel or mix with others, especially as we go into the winter season when many experts predict other viruses will delight in the depletion of our immune response due to lockdowns. So we decided to try something new – a hybrid AGM that would be more accessible and inclusive, that would allow more and different members to attend. Luckily our chosen venue for 2021 is pretty big and that allowed us to remove the restrictions on in person attendance allowing as many people as wished to attend in person. There are bound to be some hiccups with the hybrid format but we are absolutely determined to do as we did last year and learn all of the lessons we can to make future hybrid AGMs ever better.

For me personally nothing can beat the feeling of solidarity, camaraderie and joy that an in person event brings but I am not naïve and I know that this experience and viewpoint is not universal, for some being face to face is far more challenging, or the price that they pay for those good feelings is too high. So we will continue to try to make our events hybrid, and therefore more inclusive. As ever please give as much feedback as possible to help us develop and improve, we really value it. You may notice that we have focussed this year more on participation than fanci-ness and that is deliberate and as a direct result of feedback from last year.

It falls to me to open our AGM and conference and in doing so reflect on the forgoing year. I genuinely feel that each year I say “what a year it has been” and this year will be no different. I stood here last year and spoke about the unification process and how tough it would be. How foolish I was, how naïve! I thought it would be tough but in fact it has been far worse. The confusion and frustration around assignment and alignment processes were awful for members who faced uncertainty in the transfer process. That was bad enough but the weeks after transfer have shown just how bad things were in CRCs and the NPS. The coming together has exposed the weaknesses across all employers. Workloads have sky-rocketed to ever more dangerous levels and staff struggling to adapt to a new employer and new ways of working are bombarded with tick-box spreadsheets and demands to complete mandatory online training. Confusion and chaos reign in Probation right now, with pay problems that elicit at least 17 different responses depending who you ask, continuing confusion about the consultations on major changes involved in moving to the Target Operating Model and workloads so high that newly qualified officers leave rather than suffer the way they’ve seen their colleagues suffer during training. The whole system is in disarray but I just wanted to highlight a few areas that we are working on at present.

SPO Workloads are out of control. They have been a concern since 2014 but in the last year they have reached crisis point. SPOs managing a team of people with excessive workloads find themselves at the mercy of a resourcing model which says they can manage 10 people. That would be challenge enough but consider the number of staff working part time, the calculations use FTE (full time equivalent) so if the team has several people working part time in it the number climbs but the staff require managing whether they work full or part time. Then PQUIP trainees only count for a fraction of a full timer even though they arguably need more support and closer management than more experienced staff. So an SPO can have 15 or 20 staff to manage, all needing supervision, all needing input on their work around risk, all struggling with excessive workloads and all needing support to navigate massive organisational change. On top of this SPOs are the first port of call for pay problems which, we have discovered, can be so intractable that it takes teams of people months to resolve them. Every time a new process is introduced, every time an audit or case review suggests the need for practice improvement, more work is heaped onto SPOs. Our SPO Forum relaunched this year and Vice Chair Carole Doherty has created a space for SPO members to come together to offer and seek support and to make sur their concerns are raised. Sonia Flynn attended the last meeting to hear first hand the views of members and Carole is now working with the team who are carrying out the management review that we secured commitment for in our 2018 pay deal. It takes time to effect change but we are proudly making sure that the voices of our members are heard when decisions are being made.

ViSOR use and the police vetting required for it continues to be a huge concern. We now know that vetting failure rates are low but the impact on those who fail this vetting is huge. Movement to a different area of work has an impact on morale and potentially your career but more insidious is the impact on diversity of our workforce. Police vetting for ViSOR use is now part of the recruitment process and anyone who fails will not be employed in Probation. To understand why this impacts on diversity we must consider the known reasons for failure. You will automatically fail if you have live County Court Judgements against you, this is a situation that many people who have experienced financial hardship will face. If you are a Black or Asian man you are more likely to be stopped by Police, more likely to be arrested, more likely to be charged and at Court more likely to receive a custodial sentence than if you are a white man. Police vetting looks at any convictions you have but also convictions of your closest contacts and any intelligence about criminal networks. It surely follows therefore that people in our society who are more likely to be convicted and who have families also more likely to be convicted will be less likely to be able to work in Probation. Next we consider another reason for failure of vetting – those who have been a victim of domestic abuse but remain connected to their abuser in some way, perhaps because they have a child or children together. This can be considered an ongoing link by Police and vetting would fail.

So, those who have experienced financial hardship and had no cushion to help them – poor and working class people are less likely to be able to work in probation, black and Asian men face far higher likelihood of failing police vetting and therefore ever more barriers to employment in probation, and victims who struggle to fully disconnect from their abuser, either because of the nature of the abuse or because of some other link between them are also less likely to work in probation.

At a time when HMPPS are proudly announcing the employment of 1,000 people with lived experience of the criminal justice system in the Probation P of HMPPS people with lived experience who already work in the system are being sidelined and recruiting new staff with such experience will be ever harder. Make no mistake, there are now, and have been for decades, people working in Probation at all levels with lived experience of the justice system, and probation practice is all the richer for their presence. Now however we face people with this invaluable experience being recruited only to special roles separate from ordinary probation practice.

Napo’s position is that people with lived experience of the justice system should be able to work in any and all roles in Probation. We know that careful consideration must be given and assessments will need to be made to enable this but external vetting by the Police for the sole purpose of using a computer system should not be a barrier to creating a diverse workforce. We have consistently taken a solution focussed approach to this, first suggesting that ViSOR is not the best way to share information given the complexities of processes – instead we suggested allowing other agencies restricted access to Delius instead. This was not pursued, then we suggested that those who fail vetting could be given a protected caseload that didn’t require ViSOR use – this was seen as not possible for NPS. When unification was on the table we tried again, a mixed caseload in the PS would surely allow for staff without ViSOR vetting to have a caseload that didn’t need ViSOR. Again our reasonable suggestions were politely ignored. We will continue to raise this and to carefully monitor the impact of vetting on staff who transferred from CRCs. We have raised the issue with Justin Russell, after the HMiP report on race in probation and are now working hard to raise the issue more widely.

Another ongoing and very tricky issue is OMiC, the movement of the supervision of clients during the custodial part of their sentence into the prison where a team of Probation and Prison staff work together to carry out all of the tasks formerly performed by an Offender Manager in the community and an Offender Supervisor in custody. We are told this is being done because “end to end offender management” didn’t work. But it wasn’t really given much chance, with community staff not being resourced to travel to prisons, bans on travel claims due to cuts and excessive workloads meaning custody cases were deprioritised. Despite the obvious solution being to fix these issues OMiC was apparently the answer. So now instead of the community practitioner being the consistent thread throughout the sentence, from custody into the community someone serving a custodial sentence will have a new offender manager every time they move prisons and only meet their community officer close to their release. OMiC moves the work formerly done in the community and adds it to the work formerly done in the prison. It therefore moves staff into prisons. There is at present no workload measurement tool for OMiC and so inevitably workloads are high, staffing too low and because the administrative support comes from the prison team it is taking a long time for them to adjust to tasks they have no experience of.

Most concerning is the plan to move prison based SPOs into the line management of the prison governor. This is due to happen soon. We are utterly opposed to this and have been since the start. Probation Service staff have different terms and conditions and different ways of working than prison staff, the experience of COVID showed us that these differences can cause tensions and we had to intervene in several regions where prison governors, even before line managing the SPOs were insisting that despite the PS policy being to work at home where possible they wanted all probation staff to be in the prison every day. SPO members working in prisons tell us they are looking to move roles to avoid the inevitable issues that will make their positions very tough indeed. We have yet to see the full guidance for the line management arrangements but we remain vigilant to the risks to our members.

Unification has meant that programmes work now all resides in the probation service. This is cause for celebration however there are many concerns about moves to alter programmes and delivery requirements and the potential for “dumbing down” skilled work. We await the promised consultation on the detailed plans for programmes, but we anticipate having to fight the move away from quality and towards economy as driver for the changes.

COVID has brought many challenges and it’s impact will resonate throughout the system for years. One of the challenges we face now is the backlogs of cases waiting to go through the Courts, we all know that the Court system was struggling anyway and closures of Courts, low staffing and lack of resources meant there were already delays but some now face a wait of years for their case to be heard, and members working in Courts face ever more pressure to produce their advice to the Court in the quickest way possible. Despite many reports reinforcing what we already knew – that a quality pre-sentence report cannot be produced quickly – the direction of travel is towards speedy justice, seemingly at any cost. Rather than reopening closed courts, or investing in the staff who make the system work, the focus now seems to be on extending Court sitting hours and pushing through cases, ignoring the warnings that speedy justice sometimes simply isn’t justice at all.

In Unpaid Work there are also backlogs due to the pandemic and Napo’s ‘safety first’ approach to recovery is being pushed past it’s limit by the fervour to ramp up delivery despite concerns about virus transmission. Alongside this we have the challenge of unification, with the chaos that has brought. Unpaid Work staff face uncertainty and the planned work with trade unions on the new operating model, which could have helped to deal with some of the backlog issues, have been forgotten about as senior leaders just try to deal with the immediate chaos facing them.

There are so many other problems in the system, too many to list – even though we have three days!

Does this all sound a little bleak? At a recent branch meeting we acknowledged it is all quite bleak and that much work is needed to get us to a point where practitioners feel that Probation is functioning again. The damage that has been done to the system is both broad and deep and will take many years to repair. Amidst this bleakness however there is a spark of hope. The hope is Napo, us, the members, the reps, the staff, working together not just to represent the interests of members in their employment rights but also to represent the profession, the idea and ideals of Probation.

Our reps, activists and members have worked tirelessly throughout the pandemic to keep themselves, their colleagues, their clients and the communities they serve as safe as possible. The haste to “recover” has been resisted at all levels and while we struggle to hold the line on this we must always remember that safety comes first. Keeping us safe in our work is a legal duty on our employer and whether the risk be COVID or work related stress the same duty of care is owed to us. If you feel unsafe at work, due to COVID or due to work related stress, please contact your branch reps, follow the advice we’ve issued, escalate concerns to the Link Officer and Official for your branch and make sure we all work together to fight these significant threats to our safety.

In many ways it may seem that we have lost some of our power since TR, the Civil Service approach is not always conducive to problem solving and the solution focussed approach we took when we were in smaller probation trusts. But we do have power – in our union. We have collective power, far greater than the sum of it’s parts. I am looking forward to spending these three days discussing and debating how we use that power, and how we channel and focus our efforts to effect real change.

If the situation for Probation members in England and Wales sounds a little bleak, our colleagues in Cafcass and Probation Northern Ireland aren’t faring much better. The organisational change issues aren’t there in the same way but workloads and pay are. In Cafcass our reps have been working tirelessly to protect members from the threats of COVID and work related stress. Dialogue with the employer has been established but there is much work to do and I know that will be discussed more tomorrow. There is, just like in Probation, no easy or quick solution to the workload issues. The work is there, and is increasing as a result of the pandemic. The funding provided to meet the need was a one off – so won’t continue and hasn’t appreciably made a difference. Cafcass needs serious investment, long term funding to increase staffing and reduce workloads to manageable levels.

In Northern Ireland workloads continue to be an issue and we are working hard to try to put in place processes to address workloads and to ensure that staff have a route to address them.

With all of this going on it can be difficult to take notice of what is happening around us, and to make space for things that we, as a professional association, should be involved in. That’s why I want to pay tribute to Emma Cluley as she steps down as Managing Editor of the Probation Journal. Emma has made an incredible contribution to Napo in this role and will be greatly missed. I know the recent Editorial Board meeting was her last, and the report to this AGM will also be her last, please show your appreciation for her dedication and commitment to Napo and to Probation.

Yesterday I was pleased to chair the women in napo fringe meeting where we launched a research partnership with long term member Becky Shepherd. Becky is looking at vicarious trauma in women who work with women and we hope that her findings will help us to secure better support for staff working with women on probation and women victims. This is a really important topic and I am looking forward to working with Becky on it. Women members will be receiving an invitation to participate and we hope you will share it with women colleagues who work with women to increase the responses.

I’ve been reflecting lots in recent weeks on the issues that women face in their daily lives. The sentencing of a Police Officer for the murder of Sarah Everard has sent a shockwave through society but the misogyny that enabled that heinous crime has always existed and we have always known about it. Even after the media was filled with people saying what must be done about the problem of institutionalised misogyny in my home area of North Yorkshire our Police, Fire and Crime Commissioner, in interview, made comments that were textbook – worthy examples of victim blaming. He is still in post, for now, although widely criticised. He has apologised but the problem is not that he said the comments in public, where we could hear them, the problem is that he held those beliefs. The problem is that women are being told to use tracking apps, to avoid walking alone at night, to modify their clothing, to change their behaviour to keep safe. No one is telling the perpetrators to modify their behaviour. No one is intervening to remove people from positions of power and influence when they say or do things that demonstrate misogyny. We must - all of us - make ourselves free to do this, to call out misogyny, to demand better from those in positions of power.

Tomorrow at our AGM we will launch our race action plan, and dedicate ourselves to being anti-racist. Not just to say we will avoid being racist, but that we must ever strive to be anti-racist, actively and using all of the power and influence we have. We must do this collectively and individually, in our work, in our union and in whatever we do when we are not working or coming together in Napo. We must become the champions of anti-racism in our workplaces and our communities. I will be proudly signing my pledge and I hope each of you will too.

Together in Napo we can do great things, and there are great things to do. I hope you will leave here, after 3 days of being inspired by other activists, and spread the word to workmates who aren’t members. That they can and should join Napo, and share in the joy, the antidote to despair that is our solidarity. As I enter my last year as Chair I will hold those feelings close and use them as fuel – to fight the good fight and share as much of the antidote to despair as I can with others.

As I now finish I would like to read the message of solidarity from Unison, who are holding their own conference this week:

UNISON sends this message of solidarity to our sisters and brothers in Napo with best wishes for a successful AGM. We look forward to working with you on the many challenges which lie ahead. Together we can prevail.

Katie Lomas 

Things Could Be Better

Dare we hope for something better? Ok David Lammy indulged the usual political requirement for new offences and tougher sentences, but at least probation got several mentions and I particularly like the 'National Service of Second Chance' reference and suggestion of a 'National Pro-bono Service'.   

PSR Before Plea

It's not a return to PSRs in not guilty cases - yes we used to - but I'm not at all sure we've covered this aspect of PSRs, apparently brought about as a consequence of Covid-19. This from NPS and Law Society last October:- 

Pre-Sentence Report Before Plea 

Introduction 

The purpose of this document is to create a clear operational process, so that pre-sentence reports can be prepared in advance of the magistrates’ court taking a plea at the first hearing. The signatories to the protocol have a responsibility to comply with it and the court and Crown Prosecution Service are encouraged to facilitate it. 

Legal basis 

• The parties have a duty to actively assist the court by early communication to establish the defendant’s likely plea at the first available opportunity.

• The court has a duty to obtain a pre-sentence report before considering community or custodial sentences unless it decides such a report is unnecessary. 

• The statutory definition of a pre-sentence report means a court may consider a presentence report which it has not commissioned, to meet its duty.

• The process also preserves the taking of a guilty plea by the court, following a clear acknowledgement of guilt.

Benefits 

The process will mutually benefit the court, defendant and criminal justice partners as it will: 

• enable the court, in suitable cases, to proceed efficiently and expeditiously to sentence following a guilty plea without adjourning or standing the case down for a pre-sentence report. 

• enable more flexibility in scheduling the pre-sentence report interview, which takes place prior to the hearing. The defence may ask the legal adviser, where necessary, to vary the first hearing date to ensure there is sufficient time to produce the report 

• reduce the time spent physically at court, when social distancing measures are in place, therefore protecting all parties’ welfare during the pandemic. 

Scope 

A pre-sentence report applies where: 

• it is anticipated that an adult defendant, charged to appear before a GAP or NGAP hearing on bail or postal requisition, will be sentenced in the magistrates’ court; for offences triable either way see Sentencing Council allocation guideline,

• a defendant is willing to indicate a guilty plea to all offences charged on the full prosecution basis. 

• a defence legal representative, on behalf of their client, requests a PSR Before Plea. 

This protocol does NOT apply to cases to be sent or committed for sentence to the Crown Court where CrimPD 3A 9 and guidance within the Better Case Management handbook should continue to apply.

The process is set out in Annex A. The form used to request a Pre-Sentence Report Before Plea is attached at Annex B (“the applicable form”). 

Compliance 

In the event of parties consistently failing to comply with their responsibilities under the protocol the matter is to be reported to the Local Criminal Justice Board. 

Signatories 

National Probation Service: Sonia Flynn Chief Probation Officer 

Law Society: Richard Atkinson & Ian Kelcey Co-Chairs Criminal Law Committee Approval by Senior Presiding Judge of England and Wales 

1st October 2020

--oo00oo--

The Probation Institute has recently published a position paper:- 

Use of the Protocol for "Pre-Sentence Report Before Plea"

The Probation Institute has considered the new Protocol for the preparation by the Probation Service, of a pre-sentence report (PSR) before plea, for use in the Magistrates Court where there is an intention to plead guilty and the legal representative has requested the PSR before plea. 

We understand the pressures – volume of cases and long delays, which will have led to the agreement of this Protocol. However there has long been professional practice that pre-sentence reports should only be prepared when a defendant has either pleaded guilty or been found guilty by the relevant court. In our view this practice ensures legal justice for the defendant, avoids pressure to plead guilty, and also ensures that, as far as is possible, the report writer is making enquiries and proposals for sentencing based on the agreed view of the offence/s. 

We regard the Protocol with caution therefore and hope to contribute to ensuring that its use, where considered appropriate, will be the exception not the rule, and should always take into account the interests of justice and follow professional practice carefully. 

We believe that there are risks attached to preparing the PSR before a plea is formally taken in court, or the trial completed. These risks are: 

• The defendant may be pleading guilty in order to receive a reduced sentence or to get out of custody after a long remand. If s/he would otherwise plead not guilty we suggest that this would be an injustice which should not be encouraged by Probation. 

• Sufficient information about the charge (from police, witnesses) may not be available before the plea is taken - the PSR is therefore written without sufficient knowledge to be credible for the court. 

• The protocol recognises that Probation may request that the date of the plea hearing is adjourned to allow time for a PSR before plea. In this case it is essential that sufficient time is provided to enable the necessary assessments and prepare a full report with researched sentencing options? Ten working days is suggested with a minimum of five days. It might be more constructive and beneficial to ask the court for an adjournment post plea or conviction. 

• If the defendant is on bail it is possible that further offences may be committed before the case reaches a court hearing. This would potentially invalidate the contents of the Pre-Sentence Report. 

Here are some of the issues that we consider should be taken into account when using the Protocol for Pre-Sentence Report before Plea. 

1. Has the defendant consented to the preparation of a Pre-Sentence Report before the plea or finding of guilt is established? Do they fully understand the implications of this? 

2. What is the exact legal charge to which the individual is willing to please guilty? Has it changed since arrest? Could it change again? 

3. Has the individual considered pleading not guilty at any stage? If so, what has changed?

4. In order to prepare a PSR the report writer will need to know the facts of the case. Is there an agreed version? Do you have the police statements? 

5. If you are preparing a report on an individual who believes that notwithstanding the plea, they are not guilty it is difficult to discuss accountability, remorse, reasons for this offending etc. This may also affect the willingness of the individual to engage with rehabilitation, particularly on a community sentence. 

6. The court should be made aware in the report that the PSR was prepared before either a plea or a finding of guilt were established. 

7. If at any stage in the preparation of the PSR it becomes apparent that the defendant’s position regarding a plea is unclear the preparation of the report should be paused and reviewed by relevant parties. The defendant’s legal representative should be informed.

Probation Institute 

April 2021