Another MoJ Disaster 2

Following on from the blog post the other day about the continuing tagging disaster, here we have Professor Mike Nellis joining up the dots on the Centre for Crime and Justice Studies website:-  

Electronic monitoring: in flight to where?

Mike Nellis assesses the latest developments in the electronic monitoring fiasco and asks where future policy is headed

The Public Accounts Committee (PAC) session on the National Audit Office’s (NAO) report on the Ministry of Justice's (MoJ) failed 'New World' electronic monitoring (EM) strategy on the 13th November was a disappointment.

It did not get to the bottom of why things had gone so catastrophically wrong, concentrating only on the hows and whats, as the NAO themselves had done. Chris Grayling, the minister who more than anyone devised and drove this secretive, overambitious strategy, abetted by the Cabinet Office, and drawing on a Policy Exchange report that had considered radio frequency (RF) based EM curfews obsolete and 75,000 offenders per day on GPS tracking a feasible and desirable option, was not held to account in the way he deserved.

Three civil servants dutifully carried the can for him, Richard Heaton, Michael Spurr and Adrian Scott, the first two of whom were indeed there during the fiasco, although neither deserved pillorying for a strategy they would surely not have signed up to had their minister not been so determined. But they do get paid to apologise for it, and that's what they did, as well as assuring us that a now more modest EM strategy – in which RF EM will remain dominant – had been salvaged from the old, and would be alright.

A disaster from start to finish

The PAC members pressed the civil servants to accept that New World had been 'a catastrophe', 'shambolic', 'a total disaster from start to finish'. £60 million was spent on it, from 2012, and not a single person had been placed on GPS by 2015, its original start date.

The gist of the MoJ’s response was that New World had been conceived with the best of intentions – to 'break up the market' and 'go for innovation' – but they ruefully accepted that it had indeed been overambitious and flawed in execution, albeit hinting that this could only have been realized in hindsight. Furthermore, they identified two silver linings.

Firstly, it was the decision to move from a duopoly of EM providers – G4S and Serco each providing a regional service – to 'a tower model' involving four integrated companies providing a national service that had exposed the overcharging scandal.

Secondly the £60m fiasco itself had been a learning experience, which provided the foundations of the assuredly good, sensible strategy that was now, as Heaton confidently put it, 'in flight' and 'set up to succeed'. Only £4 milli0n (+VAT, making it £5.2 million), he said, had been 'fruitless expenditure'. This was the pay-off to Steatite, the second selected tag supplier, when the Ministry’s reckless pursuit of a bespoke supertag was abandoned.

A disaster foretold

There is no way that £60m had to be spent to work out how to introduce GPS tracking into an existing EM programme. All the academics, think tanks and commercial actors knowledgeable about EM, and indeed many of the MoJ’s own civil servants, would have advised a more prudent strategy.

There were several other countries, at that time, whose experiences with GPS could easily have been learned form. But the minister and his close advisers were never in listening or consultative mode about New World, and the PAC accepted too readily Spurr’s cursory, fudged explanations of why not even the probation and prison services were treated as important stakeholders in the proposed EM strategy.

Somewhat paradoxically, given its otherwise great influence, the most articulate and persuasive opposition to both the prevailing duopoly of EM service provision and the upcoming the tower model came from the centre right think tank Policy Exchange, whose report had strongly favoured localized contracting with Probation Services and/or Police and Crime Commissioners. A second centre right think tank, Reform, later made the same cogent argument.

Neither the NAO not the PAC asked why the MoJ had not explored the cost-effectiveness of local contracting, but after this fiasco someone somewhere ought to place it back on the agenda.

No evidence, no rationale

Famously, New World had had no evidence-base and no pilot schemes. This was about 'getting quick results'. The civil servants said: 'we were embarking on a major transformation programme', as if this was an excuse.

The PAC seemed more interested in the absent evidence-base for the transformation than the absent rationale for the transformation itself, the non-existence of a publicly debatable policy on EM in general and GPS tracking in particular.

Spurr helpfully conceded that more than evidence was at issue: 'we should have had an underlying policy base for what we wanted to do with tracking, and we didn’t'. But the PAC did not pursue that. It rightly pointed out that it had called for more research on EM in 2006, which had not been done. But it still failed to raise the larger question of why, after all this time, the MoJ was still no nearer to having a clear strategy for EM in the context of a clear, coherent penal policy.

Providers badly treated

The PAC was concerned that the 'small, medium enterprises' (SMEs) involved in the tower model, first Buddi, then Steatite, had been badly treated by the MoJ and indeed set up to fail. The civil servants conceded that the original specifications for the supertag were too numerous and complex, and that the participation demanded of small companies with few staff and other customers to serve was excessive.

Buddi’s understandable unwillingness to share technical secrets (intellectual property) with a much larger company (Airbus) so that the hardware and software could be integrated with each other had become grounds for its withdrawal before contracts were signed.

The civil servants feigned regret on this, but defended it all the same, begging the far more pertinent question, which the PAC spared them, of why the tower model separated hardware and software provision in the first place. In the original procurement, Buddi had sensibly bid to do both, and had a proven track record of delivering both in its successful police and NHS schemes.

Few wanted the job

The issue with Steatite was somewhat different. They replaced Buddi despite, as the NAO had revealed, being below the benchmark for reliability, partly because they had no experience of making GPS devices. What was barely made clear in the session was that Steatite got the job by default, because there were too few other companies willing to take it on.

This was less about SMEs as such being unwilling to work with the MoJ, as the PAC hinted, and more about experienced EM providers refusing to invest their time and money in the MoJ’s pursuit of a bespoke supertag, whose intellectual property the MoJ would own, when there were already satisfactory devices available on the open market.

During Michael Gove’s brief tenure as Justice Minister – the MoJ conceded this – paying off Steatite and closing down Just Solutions International, the commercial arm of the National Offender Management Service, established by Grayling to sell British penal expertise abroad. His supposedly world-beating EM technology was to have been one of these services for sale.

Continuing problems

Turning to the present, the PAC were understandably concerned that even the salvaged programme would not deliver. They sought (and got) assurances that sufficient staff time was now being devoted to it, that it was insulated from Brexit, that MoJ competence in procurement and contract management was now adequate to the task.

The civil servants insisted that now that the integration function in the tower model had been shifted from Capita to the MoJ, as the NAO had recommended, they were in a better position to drive the programme forward. But the question of whether the delivery structure was more complicated than it needed to be still hung over proceedings.

The PAC worried that there had already been slippage from the new programme’s projected national start date in 2018 to February-March 2019. It was also mildly irritated that the civil servants would not even commit firmly to that.

Despite acknowledging the still low take-up in the 8 GPS pilot schemes – 491 subjects so far, out of the 600/1000 anticipated – the PAC seemed reassured by the MoJ’s now modest model, from which, Scott said, 'lessons are being learned as we go'.

One of these lessons, revealingly, 'was that we now understand when sentencers will use GPS or not'. This has apparently shrunk the MoJ expectations of what the future scale of GPS use will be to no more than a 1000 per day, with the current figure of 12,000 on RF EM remaining static. This is lower than it was before New World was conceived.

A recipe for penal conservatism

What the PAC did not seem to understand was just how far the MoJ’s aspirations have fallen: from a world-beating grand plan for mass satellite tracking without RF, imposed from the MoJ, to a sentencer-determined model of GPS use in a mostly RF system.

The programme is indeed 'in flight', but not only in the sense that Heaton meant. It is 'in flight' not only from Grayling’s crazy hopes of having the world’s biggest and best GPS programme but also – still – from any attempt to consider what EM technologies might actually contribute to a rational, coherent penal policy.

Given the broader decline in the use of community sentences, of which the decline in RF EM use may be a part (no-one knows for certain), leaving sentencing to the vicissitudes of sentencers is a recipe for penal conservatism and the untenable status quo.
No solution to the probation and prisons crisis

From wanting too much control, the MoJ seemingly now wants too little. EM is no solution to the manifest problems of the privatised probation services or the understaffed prisons. It is also no substitute for measures which meet the psychological and practical needs of offenders.

But used properly, integrated with other supportive measures, EM technologies can make a modest contributions to reductions in custody and public protection in ways that those under criminal sanction themselves find legitimate.

There is still a need for a 21st century penal strategy with a properly contextualized place for EM. It is up to the penal reform network to at least imagine what that could be.

Mike Nellis

Scotland Leading on Tagging

This from the BBC Scotland website:- 

Proposals to increase use of electronic tags in Scotland

The Scottish government is proposing a radical extension of the ways electronic tags can be used on offenders, BBC Scotland has learned. Sobriety tags, GPS tracking and tagging as an alternative to remand would be used in Scotland for the first time. Sobriety tags, which respond to the ethanol levels in a person's sweat, are among the pilots to be announced. They would be used as an alternative to prison for those who offend under the influence of alcohol. The changes will require new regulations and legislation.

Under the proposals, other pilots will be announced in the next couple of months. All the proposals have been recommended by the expert working group on electronic monitoring, which was created by the Scottish government two years ago.

Tagging has been available in Scotland for almost 15 years and used predominantly to confine offenders to their homes overnight as an alternative to prison or under early release from jail - referred to as Home Detention Curfew. There are currently more than 1,000 offenders tagged in Scotland. But under the proposals, in future, tagging will be used as an alternative to remand in prison and as a condition of bail. And GPS tracking will be used for the first time to monitor certain offenders' movements.

Another option is "voluntary" electronic monitoring for offenders willing to work with agencies to try to stop shoplifting, housebreaking and gang involvement. The report also calls for monitoring alongside social work support.

Robert Johnson has been tagged more than once. On one occasion he was sent to Barlinnie prison for drugs offences and released early on Home Detention Curfew. Now 35, he says he has grown up and that he has not offended for more than two years. He says that being tagged gave him the time and opportunity to re-connect with friends. He has now started up a café with some of them.

"When I was in prison I was ashamed and embarrassed and I didn't want my children to see me there in a place like that. Every dad wants to be superman to their children and I didn't want them to see me there, to see me exposed. Being at home with a tag and being able to spend time with my family and start looking at education and work, and being with my children, money can't buy something like that."

He added: "In prison you're left in your cell for 23 hours a day locked up with not a lot to do and the chances are if you do do something it's not going to be something worthwhile. On Home Detention Curfew you can be home with your family and your children and start rebuilding your life."

Justice Secretary Michael Matheson said he wanted Scotland to look to the system used in the Netherlands which focuses on outcomes and support. He hopes the extension of tagging will form part of extensive changes to the whole penal system.

"Rather than just deciding on what kind of electronic monitoring they're going to use, they work out what they're trying to achieve first of all and then look at whether electronic monitoring would help to achieve that aim," he said.

"And it could be different types. It could be GPS or the radio system which we have at the present time. We want to focus on outcomes. "The report highlights that we could use electronic monitoring in a much more effective way, for example, for individuals remanded into custody."

Angela Smith, service director at G4S Monitoring Technologies & Services in Scotland, said the new system would mean that the numbers of offenders tagged across the country in the future could be "unlimited".

"This is not a soft option. It is a restriction placed not only on offenders but also on their families," she said. "But it does allow them to stay with their families and maintain their jobs and keep relationships together."

In England and Wales electronic monitoring has faced some controversy with a number of high-profile cases in which tagged offenders have been caught committing further crimes. In 2010 a man wearing an electronic tag in Manchester was left dead in his flat for weeks before his body was found.

Stirling University criminologist Hannah Graham said: "England and Wales have had some issues and scandals with their uses of electronic monitoring, whereas Scotland's approach has stayed fairly simple, stable and small in scale. "The expert group's recommendations imply Scotland will take a more European approach, learning from the Dutch and Scandinavians as leading examples of how to use electronic monitoring well. There's evidence to suggest this is a better and bolder direction for us to pursue. But it's difficult to predict how much the use of tagging will increase because this depends on whether these recommended changes are embraced by decision-makers such as sheriffs, some of whom barely use it currently."

She added: "There's an acute need to reduce Scotland's disproportionately high prison population - making better use of electronic monitoring within community sentences offers one way of trying to do this."

Mike Nellis, Emeritus professor of law at Strathclyde University, previously worked as a social worker with young offenders. He told the BBC's Good Morning Scotland radio programme that tagging should be used in conjunction with other services. "The technology by itself is very limited if you're trying to change any type of behaviour. Certainly, if we're talking about people with alcohol problems, they have to have the services to help them deal with their alcohol problems."

He added: "Some people are given a sense of self-discipline by having to wear the alcohol monitoring device or indeed any other form of electronic monitoring devices, and I think part of the art of using electronic devices wisely and well is to help people to understand that this is something that they can use to assist them on their journey of desistance."

Scottish Conservative justice secretary spokesman Douglas Ross said there was a place for electronic tagging but he could not accept the "creeping expansion" replacing custodial sentences for serious criminals. He said: "We saw in recent weeks how some rapists have been escaping jail and instead handed community sentences. That's an indication that, when the Scottish government insists on an alternative form of punishment, it inevitably gets used on the wrong people. In order to retain public confidence in tagging, this expansion will have to be monitored exceptionally closely."

Scottish Labour's justice spokeswoman Claire Baker said Scotland has one of the highest prison populations in Europe and called for credible and robust alternatives.

"However, for tagging to work both the courts and the general public must have confidence in it as an alternative," she added. "Without that we will still see people sent to prison on remand or for short sentences. Therefore the Scottish Government must ensure that electronic tagging is fully resourced and monitored, yet with cuts to the budgets of the police, our courts, and local authorities, this will be challenging."

--oo00oo--

The full report can be found here.

Executive Summary 

Although there has been considerable geographical variation it its use, electronic monitoring (EM) has been nationally available in Scotland since 2002, largely as a standalone measure, using radio frequency (RF) technology to enforce home confinement in the context of various legally specified orders. It has been delivered by a private sector service provider contracted to central government. Within the parameters originally set for it, EM has been delivered to a high standard, but it has not been used strategically to meet judicial, penal and social work goals. Crucially, only in some instances has its use been integrated with other criminal justice interventions. This lack of integration is anomalous when compared with EM use in mainland Europe, where EM is usually embedded in the work of probation services. The Scottish Government‘s desire for greater integration of EM and support services, both statutory and third sector, aimed at prevention, rehabilitation and desistance, was the starting point for review of and public consultation about EM in 2013. The present Working Group emerged from this review and consultation. 

Consideration of the potential of two emerging EM technologies – satellite tracking using the Global Positioning System (GPS) and trans-dermal alcohol monitoring (TAM) – also underpinned the review. The Working Group reflected further on this, settling on the view that it is the penal, judicial and social work goals which technology can be used to achieve, rather than the technology itself. It was accepted that while the existing RF-based home confinement still served a useful penal purpose, it had not been used as flexibly or as creatively as it could have been. GPS technology offers new possibilities for monitoring movement-in-general (not just presence in a single place as RF does), as well as the creation and oversight of exclusion and inclusion zones, of variable size, to restrict movement and offer greater degrees of protection to victims of crime than are usually available in existing forms of community supervision. Trans-dermal alcohol monitoring can support and enforce prohibitions on alcohol use rather than monitoring locations and schedules, although it can also be combined with those. 

The Working Group sought to envision a new strategy for EM-use in Scotland, utilising existing and new technologies and grounded in the needs, interests and aspirations of various agencies and organisations involved in the criminal justice process, including victims of crime. This envisioning was guided by a review of international research evidence on EM specially commissioned by the Scottish Government, and by the findings of an EU funded comparative research project on EM in which Scotland took part. Because EM (in all its forms) is itself a digital technology, some cues were taken from Scotland‘s existing 1Digital Strategy for Justice. In deliberating on the just, proportionate and effective use of EM the Working Group drew on the Council of Europe‘s (2014) ―ethical Recommendation‖ on EM, which is strongly, but not exclusively, grounded in the potential of EM to reduce the inappropriate use of imprisonment. The Working Group similarly emphasised EM‘s potential as a form of control to support the Scottish Government‘s desire to reduce the use of short custodial sentences, to strengthen rehabilitative and re-integrative measures and to offer hitherto unavailable forms of protection to victims of crime. 

The new strategy, which will continue to be based on a nationally commissioned and contracted monitoring service, requires legislative change. It will make available all three EM technologies – RF, GPS and TAM – to sentencers and criminal justice agencies. There is an expectation of greatly reduced geographical variation in EM‘s future use. No assumption has been made – as some countries do - about the greater severity and intrusiveness of GPS tracking over RF-home confinement. The appeal of intensive GPS monitoring for high-risk sex offenders is intuitively clear, but not all such individuals may warrant its use: RF-home confinement has already worked effectively in a multi-agency public protection arrangement (MAPPA) context, and could continue to do so. GPS technology may also be used with lower risk individuals and ―voluntary consent‖ models of GPS tracking have been used (in England and Wales), and are not without merit. For some individuals, including young people, both RF and GPS can have preventative and protective functions which empower them to resist adverse peer pressure. 

In summary, the more strategic use of EM envisaged by the Working Group has three aspects: 

1. To use EM in more integrated ways, alongside a range of supportive measures, to help prevent and reduce further offending and promote desistance among people with convictions 

2. To enhance the protection and security of victims of crime in ways that other community interventions are unable to do 

3. By offering a greater degree of control in the community, to make the use of electronic monitoring more appealing to sentencers as an alternative to custody, in particular short-term sentences and remand. 

The Working Group strongly endorses an individualised rather than a categoric approach to the use of EM, based on a rounded risk-needs assessment, and a clear sense of the goals to which EM may, or may not, contribute. Proportionality is always an important consideration in any EM-intervention but this does not reside in the technology itself; rather, it resides in the intensity and duration of the schedules and requirements it is used to enforce, and the nature of the other supportive measures with which it may, or may not, be combined. Different intensities of EM and variable combinations with other measures can be used at different points on the sentencing tariff, to meet different goals for different individuals. The variety of new ―community uses‖ of EM and specific legal frameworks in which it should in future be used are listed in Recommendations 5 and 7. The Group commends further consideration of the still underused ―movement restriction orders‖ in a youth justice context. 

EM is a versatile form of control which can be imposed either as punishment or to support rehabilitative purposes. The use of EM as a standalone punishment should remain a legitimate sentencing option. However, in its various forms EM should now become integrated with measures with a proven track record of preventing and reducing further offending which assist individuals to desist from crime. Some research evidence shows that EM has a crime reduction effect in itself, for the duration of the monitoring period, but that if longer term desistance is required it must be combined with measures which help individuals to change their behaviour. In individual cases, EM should be used, by judicial and penal authorities, in a goaloriented and person-centred way, tailored to achieve specific purposes, including the protection of victims of crime. 

Against the background of a persistently high remand population, the new EM strategy should reconsider the use of monitoring at the pre-trial stage, using both RF and GPS technology as appropriate. Exclusion and inclusion zones enabled by the latter offer new possibilities for meeting the goals of bail. Whilst standalone use of EM at the pre-trial stage is wholly legitimate, experience suggests that bail support would be required in some instances to assist with compliance. The Working Group suggests that both forms of EM be considered for non-compliance with bail related offences, supervised bail, bail undertakings and investigative liberation. 

EM is already available to penal as well as judicial authorities in Scotland, in the form of Home Detention Curfew (HDC) and Parole licence. This should continue, with all forms of EM available – RF, GPS and TAM – according to a risk-needs assessment. In addition EM could in future be utilised within the prison estate, to test those prisoners on the margins of acceptable risk, in order to facilitate work placement, home leave, female community custody units and community access from closed establishments. Given perennial public anxiety about all forms of prisoner release, the use of EM in this context could be an important means of increasing public confidence. 

Compliance with and enforcement of monitoring requirements must vary both according to the nature of the violation and the purpose of the order. Where rehabilitative goals are being pursued, the response to a violation of an EM requirement must take account of the progress made towards those wider goals. A two tier approach for responding to violations, standardised and intensive, reflecting the above distinction, will be made available to sheriffs. Overall, evidence suggests that monitored people and their families can find the experience onerous but still to be preferred to imprisonment. Some evidence acknowledges that stand-alone EM can create undue stress and strain for co-residents which more integrated approaches may be able to reduce. As in other areas of community supervision, the ―user voice‖ – in this instance, both monitored individuals and co-residents - can be an important source of insight into what makes a judicial or penal requirement legitimate and feasible to complete. Creative, evidence-based ways of incentivising compliance should be developed. 

The implementation of the new EM strategy must build on the work begun in the Working Group to increase knowledge and capacity of how EM could and should be used. This has included the creation of a cross-sector champion‘s group whose members have developed a deeper understanding of EM‘s potential, although this does not preclude the need for additional training across all relevant agencies. CJSW Standards and IT systems have been revised to facilitate the potential of EM to contribute to the goals of supervision. More fundamentally, a communication strategy has been devised and agreed by all partners to better engage stakeholders in debate about future uses of EM, and to promote a common understanding of the goals that can be achieved with it. The Working Group seeks to change how EM has traditionally been considered and used in Scotland: this task must continue beyond the life of the Working Group itself. This report is not the ―final word‖ on the future of EM in Scotland, and beyond its specific proposals and Recommendations, it also aspires to stimulate further thinking among key stakeholders – especially sentencers, police, prison service, criminal justice social workers, youth justice social workers, third sector, victim advocacy organisations - as to how good practice with EM can be taken forward. In response to both this report and the Ministerial recommendations which will follow from it, the Working Group recommends that, each stakeholder group should be encouraged to develop formal ―statement of intent‖ regarding EMs future use. 

The EM in Scotland Working Group commends this report to Scottish Ministers and urges that early action be taken against the recommendations in a manner which is both ambitious and inclusive of all partners required to move the agenda forward at pace.