Trouble in Court

As court staff prepare for strike action over the troubled Common Platform IT system, we learn through a survey of magistrates conducted by their lobby group the Magistrates Association that they are not happy either. It seems they don't like things being 'done to them' rather than being part of the process! Sounds a bit familiar doesn't it? But that's the MoJ civil service way! 

It's worth reminding newer colleagues that there was a time when magistrates effectively ran the Probation Service and files had to be presented for inspection and perusal by members of the local bench on a regular basis. Ok that was before my time, but my career began when I was interviewed and appointed to the Petty Sessional District by the local bench in 1986 and very regular consultation meetings continued to be held with magistrates until of course the politicians got involved. But that's another story.    

It shouldn't cost to volunteer : Findings from a survey of magistrates

Introduction 

Magistrates are volunteers, guided by the principle of service to their local communities. This has been an underpinning feature of the magistracy for its entire 660-year history. 

The system relies solely on the commitment of those volunteers to make it work. No magistrate should, in theory, be out-of-pocket for volunteering. Magistrates can claim for expenses from His Majesty’s Courts & Tribunal Service (HMCTS), to compensate them for financial costs incurred. 

The magistracy has undergone much change in recent years. Half of magistrates’ courts have closed since 2010, and the number of magistrates has halved too. Increased centralisation of administration has reduced the sense of localness, with magistrates having to travel longer distances, and the sense that the much-prized principle of local justice has been weakened. Poorly executed introductions of IT procedures and other processes have also served to significantly damage morale. Many members tell us that this has changed their bond with the role, and how valued they feel as volunteers. Against this backdrop it is perhaps no wonder that an expenses regime that leaves volunteer magistrates having to dip into their own pockets to make up the difference has added to the stress and discontent that magistrates feel. 

The Magistrates’ Association wanted to better understand the extent and nature of the costs associated with sitting as a magistrate. This report presents the results of a landmark survey of 1,362 sitting magistrate members and sets out 20 recommendations that we believe will make a real difference for magistrates.

Executive summary 

Our survey of sitting magistrates painted a deeply concerning picture of an expenses regime that does not reflect the true costs incurred, and of a workload that is not properly recognised.

Respondents told us that they faced financial loss through fulfilling their duties as magistrates. It is a cornerstone of our judicial system that magistrates are not paid, but it is fundamentally unfair that those who volunteer for public service should find themselves out-of-pocket. It is also wrong that people on low incomes face exclusion from serving as magistrates because of the financial cost. 

Our survey highlighted the inflexibility of the current expenses regime. The system does not recognise various types of activities undertaken for magisterial duties—such as remote sittings from home or preparation time before cases. Since the Covid-19 pandemic, sittings from home—while at first a temporary measure—have expanded and become a permanent element of the duties for many magistrates. Yet, the current expenses policy ignores this. The costs of essential computer equipment, as well as other extra costs incurred through sittings from home, should be covered by the expenses system. We recommend a digital hardship fund to assist magistrates on limited means to purchase and maintain the equipment required for at-home sittings. We also recommend a small flat-rate allowance for at-home sittings to cover other related costs. 

The survey found that magistrates spend considerable time on duties as part of their magistracy work over and above court sittings. These additional roles, such bench chairs and training or advisory committee members, are vital to the effective running of the magistracy. However, the time that magistrates put into them is not recognised nor claimable on a par with court sittings through the expenses system. We recommend that this changes as soon as possible, not least to bolster the morale and goodwill of magistrates. We also recommend that there should be greater transparency about the actual time commitment required during the recruitment process for new magistrates. 

The justice system relies heavily on the goodwill of volunteers. More than 90 per cent of criminal cases are dealt with by volunteer magistrates; without their work, the justice system would seize up. This was highlighted during the Covid-19 pandemic when magistrates kept courts running through virtually the whole period, and quickly tackled the pandemic-related backlogs as soon as it was possible, including with nightingale courts and weekend sittings.

Yet, our survey showed that magistrates feel neither the Ministry of Justice (MOJ) nor His Majesty’s Courts & Tribunals Service (HMCTS) understand their needs and motivations as volunteers. Instead, they feel that consultation on changes is usually inadequate, meaning that when change is introduced it is often poorly handled and makes their roles harder. Respondents said that change is too often done to them rather than with them. So, we recommend that the MOJ and HMCTS change their whole approach to working with the large volunteer force of the magistracy. We call for a Magistrates’ Volunteering Compact, drawn up between government departments and agencies and magistrates’ representatives, based on greater respect and understanding of the role of magistrates as volunteers in the context of participatory democracy. The compact should set out clear commitments and expectations including meaningful consultation on major changes, expected time commitments, and a statement that magistrates should not find themselves out-of-pocket. 

This report highlights how external events can have a substantial impact on magistrates. The rise in fuel prices, for example, has come on top of a reduction in the mileage allowance for many magistrates that came into effect last year and hit many hard. One of our core recommendations is for the MOJ to establish a standing working group to explore key issues relating to the costs of volunteering, which would include a regular evaluation of the expenses system to make sure that it always stays relevant. 

Finally, our report makes the case for how all this impacts on the ability to attract and sustain a diverse magistracy. Our survey showed that the inequities of the current expenses system have a disproportionate impact on younger magistrates, those from lower socio-economic backgrounds, Black, Asian and minority ethnic magistrates, and those who are self-employed. This presents a significant barrier to recruiting magistrates from these groups—negatively impacting the diversity of the magistracy. 

The magistracy has been described as a jewel in the nation’s democratic crown. It is one of our oldest institutions—involving thousands of ordinary people from all walks of life, giving service to their communities, for no financial reward, in the cause of justice. It has proved its resilience repeatedly, most recently in the way it kept justice going during the Covid-19 pandemic. But, at the same time, it is fragile. It is powered by goodwill, and that goodwill needs to be nurtured, not taken for granted. Our report sets out 20 recommendations for how that can be done. 

Conclusion 

This research aimed to evidence the costs involved in being a magistrate, based on a major survey conducted in March 2022 of 1,362 sitting magistrates. Our survey found that magistrates, in large numbers, reported having to make up the difference between the amounts recoverable through the expenses regime and actual costs. Magistrates are consistently out-of-pocket. 

The arbitrary amounts recovered do not reflect actual losses. This is currently a feature, not a bug, of the expenses regime, and causes widespread discontent. This leads us to conclude that the expenses regime is not fit for purpose. Our central recommendation is that the Ministry of Justice (MOJ) establishes a standing working group to consider a magistrates’ expenses that meets regularly to monitor and act on this issue to ensure it is not deprioritised. This working group would discuss updates in policy and legislation with representatives from the Magistrates’ Association and other key stakeholders and would ensure the expenses regime was as reactive as possible to external changes that affect its coverage. 

We also recommend a three-year postimplementation review of the 2019 changes to magistrates’ expenses is conducted. Our survey found that the mileage decrease from this review had an overwhelmingly negative effect that left magistrates measurably out-of-pocket and significantly dented their morale. On this topic alone, the Magistrates’ Association received over 300 emails, many of which represented benches and wider groups. 

Further, we found that the expenses regime is characterised by a level of inflexibility that created administrative burdens that could at times be insurmountable for our members, who then chose not to claim at all. While recognising the need to properly handle public money by checking claims carefully, we question whether the sheer weight of evidence required to support a claim for financial loss is always necessary. We found similar hurdles affecting claimants for childcare. Our recommendations offer simple ways to lessen the administrable burdens for ordinary magistrates. 

Separately, our survey found that magistrates’ workload was not fully recognised. Significant amounts of time spent in roles essential to the magistracy, such as sitting on an advisory committee or being a bench chair, remain completely unrecognised. Furthermore, family magistrates spend a substantial amount of time reading large bundles in preparation for a court sitting; this also is not properly recognised. 

The impact of unrecognised costs is most palpably felt, however, in the context of remote hearings. These hearings, whose use exploded at the start of the Covid-19 pandemic, continue not to attract any form of ability to claim back expenses. This is despite our survey’s evidence of significant expenses, most notably in the purchase of own devices and in the use of own utilities. Available support to magistrates, such as for IT, was also found to be wanting. Our report questions why a digital hardship allowance cannot be administered for those unable to afford the cost of their own devices, why greater IT support cannot be provided for those with own devices, and why the existing subsistence regime cannot be extended to cover other costs of sitting as home? 

New legislation, which extends the use of remote sittings and places them on a permanent footing, means that remote sittings—currently mostly unrecognised by the regime—will be the norm for many magistrates. Our survey showed that time and money were particularly important considerations for young and Black, Asian and minority ethnic magistrates, reflecting a nuanced and disproportionate impact on those from lower socioeconomic backgrounds. The context of rising costs of living and fuel prices provides an opportune moment for His Majesty’s Courts & Tribunals Service (HMCTS) and the MOJ to take a fresh look, once again, at the coverage of the entire expenses regime. This, coupled with an ongoing recruitment campaign that will bring the largest and most diverse influx of new magistrates the magistracy has ever seen, means they need, now more than ever, to be more agile in responding to these factors. 

The starkest findings came from those costs that were the hardest to measure but had the most significant impact: the costs to magistrates’ morale. Magistrate volunteers, like all volunteers, want to feel that they’re giving something back to their organisations and want to feel supported and consulted on changes. However, respondents to our survey often felt that changes to the expenses regime were made unilaterally, with minimal consultation with them directly. 

There is now an urgent need to reassess the relationship that senior leaders in the justice system have with volunteer magistrates, and to reaffirm their commitment to them through a volunteer compact. This should expressly affirm a commitment both to the magistracy and to the volunteers whose dedication and hard work is unparalleled. 

Our evidence is clear. Our recommendations provide simple ways to implement changes that will benefit all magistrates. The Magistrates’ Association is ready to support policymakers to ensure that there are no costs to volunteer as a magistrate, and that the expenses regime that supports them to undertake this essential role becomes an effective and dynamic ongoing process. 

It is difficult to understate the importance of working with a large volunteer force to ensure that morale, expectations and responsibilities are met. To ignore the issues raised in this report is a high-risk strategy that could undermine the magistracy. By contrast, we believe that our recommendations will help to restore the goodwill and morale on which the magistracy depends.

Recommendations 

Based on our survey’s findings, the Magistrates’ Association recommends: 

1. The existing three tiers of subsistence should be replaced with two: absences of 2-8 and 8-12 hours. This would ensure that magistrates whose full day sittings are shortened at late notice— and due to circumstances out of their control—are also able to claim. It would, in addition, be simpler to administer. 

2. The subsistence rates should be index-linked to account for inflation. 

3. Hotels booked through the Ministry of Justice’s (MOJ) travel agent should be covered in all cases. The cost of an evening meal, not exceeding a reasonable and index-linked upper limit, should also be claimable. 

4. A detailed post-implementation review of the expenses schedule should take place as soon as possible to address the impact of these internal and external pressures. 

5. The MOJ should set up a standing working group on magistrates’ expenses. This should be structured to: 

1. receive regular input from magistrates and relevant organisations 

2. track updates in employment law that may necessitate change in guidance or policy regularly review the rates of expenses to ensure magistrates are not out-of-pocket. 

6. His Majesty’s Courts & Tribunals Service (HMCTS) should fast-track any planned improvements to the financial loss allowance claims process, review the adequacy of all magistrates’ claims processes, and store the annual declaration forms electronically so that it does not have to be re-completed every year.

7. The courts minister should take steps to remove the annual declaration requirement from the secondary legislation without delay. 

8. The MOJ must look specifically at the barriers faced by magistrates with childcare responsibilities. Claims processes, and their potential to create difficulty for certain groups of magistrates, must be a key priority for the proposed working group on expenses. 

9. HMCTS should institute a flat rate allowance—slightly lower than the current subsistence allowance—for magistrates who conduct at-home sittings. 

10. HMCTS should establish a digital hardship fund to assist magistrates on limited means to purchase or upgrade the equipment required for at-home sittings where they do not have such equipment already. This could be administered by bench chairs. 

11. HMCTS should write to all bench chairs to clarify the standards of court dress expected under the current regime.  

12. Subject to the eligibility requirements being met, and when significant pre-reading is required, this time should be treated as a sitting. Any financial loss should be eligible to be claimed under the expenses regime. 

13. The proposed standing working group needs to think creatively about how best to recognise the extra time contribution of magistrates who undertake additional judicial roles. 

14. To build magistrates’ confidence in using their own devices, regular short-burst training sessions on the use of different IT systems should be delivered. 

15. This type of regular short-burst training should also apply to IT security and handling sensitive data, and magistrates should be asked to specifically confirm that they understand security responsibilities in order to protect themselves. 

16. To safeguard morale and recognise the hard work of magistrates, HMCTS and MOJ should work with magistrates’ representatives to establish a Magistrates’ Volunteering Compact. This would be an overarching document, based on greater respect and understanding of the role of magistrates as volunteers in the context of participatory democracy. 

17. The compact should set out reasonable expectations of magistrates—such as the real required time commitment, and expectations in the use of their own devices—as well as what magistrates can expect from HMCTS and the MOJ. This should include a commitment to meaningful consultation and involvement of magistrates in decision-making that affects them, and a commitment to ensure that the expenses regime stays relevant and up to date, so that magistrates are not out-of-pocket. 

18. The standing working group on magistrates’ expenses that we propose in recommendation five should include a specific consultative element to ensure magistrates’ voices are heard. 

19. The MOJ should ensure that the true time commitment required to be a magistrate is made clear. This transparency would be fairer to applicants and would increase the sense of recognition for magistrates’ contributions. 

20. We recognise that the Applicant Tracking System has been recently initiated to collect diversity data of new recruits. In 12 months, when there is enough data, it should be analysed on an intersectional basis.

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

The Surreal World of TR

The things I do for this blog now include getting utterly drenched in Liverpool yesterday on my way to a joint event put on by Liverpool John Moores University and the Probation Journal, a sort of post mortem on 'Transforming Rehabilitation'. The star turn was Oliver Lodge of the National Audit Office and author of three out of the four NAO reports on TR to date.

Having reminded us that the NAO's job is never to question government policy, but rather examine and audit in respect of Value For (Taxpayer's) Money, a trot through the key findings of all four reports, delivered in a typical accountants' flat, unemotional tone, nevertheless was devastating in utterly demolishing this particular bit of government policy. A bit surreal really, but a situation rather neatly encapsulated by a bit of typically British understatement "not a pretty picture" he said.  There really was nothing and I mean nothing, to commend TR, according to the man from the government department whose job it is to never question government policy - well, except this:- 

'At the end of the TR contracts, the cost will be £822m less than before.' 

I had to have a long think about this figure and indeed I seem to recall that the TR architect himself, Chris Grayling, has already quoted it in defence of the TR omnishambles. Lets just ponder for one minute what this figure of underfunding has meant over the last few years:-

• careers ruined
• stress caused
• sick leave increase
• staff vacancies
• recruitment stymied
• reduction in training 
• more victims
• more crime
• more SFOs
• community orders not made
• increase in recalls to prison
• accommodation not found
• jobs not secured

This is not a comprehensive list, but you get the idea, a situation confirmed in spades by all the other panel speakers whether academics, from NPS, from CRC or Napo. They all spoke movingly and unlike our friend Oliver from the NAO, passionately about the horror of TR and Lol Burke in particular reminded the audience that its introduction has been likened to  workplace violence. I personally know of a colleagues having been diagnosed with PTSD.

The NAO has suggested in the strongest terms that TR2 be 'paused' and are very concerned at the 'huge challenge to come'. We know the outgoing HMI says TR is 'irredeemably flawed' and the Justice Committee are very concerned. As yet there has been no response to last years 'sham' consultation, but some say we will hear in May. We could be in for another round of trauma folks.  

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This letter in the Telegraph confirms the magistrates are not happy:-

Probation reform

SIR – The report by Dame Glenys Stacey, HM Chief Inspector of Probation, on the state of the probation service is extremely concerning (report, March 28), suggesting that existing provision is simply not fit for purpose.

The report highlights poor performance, dwindling confidence among magistrates in the delivery of community sentences, and the risk that people are being sent to prison when a suitable community sentence might have made this avoidable.

As the Ministry of Justice decides on its next steps in reforming the probation service, these matters must be addressed. Magistrates will not be able to impose community sentences with confidence unless they know that they can be delivered.

John Bache JP
National Chairman, Magistrates Association
London SW8

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We wonder what the new HMI and current MoJ insider will make of it all:-

The Secretary of State has announced the appointment of Her Majesty’s Chief Inspector of Probation.

The Secretary of State has announced the appointment of Justin Russell as Her Majesty’s Chief Inspector of Probation for a tenure of 3 years. His appointment will commence on 1 June 2019 and run until 31 May 2022.

The appointment follows a report from the Justice Select, Committee into Justin’s suitability for the role, published on 8 March, and a public hearing with the committee held on 5 March.

Appointments and re-appointments are regulated by the Commissioner for Public Appointments, and have been made in line with the Governance Code on Public Appointments.

HM Chief Inspectorate of Probation

The Chief Inspector of Probation reports directly to Ministers, but operates independently of government and the services under its scrutiny. The Chief Inspector has a duty to ensure the inspection of probation and youth offending services in England and Wales and to provide independent scrutiny of the quality of work undertaken with individual offenders.

Justin Russell Biography

Mr Russell has spent over thirty years working on a wide range of criminal justice issues as a researcher, policy maker and major programme leader and has a long-standing interest and involvement in probation and youth justice policy. Mr Russell has also worked for the Audit Commission and Mental Health Foundation and was a non-executive Director of Turning Point from 2005 to 2011. Until recently, he was Director General for Justice Analysis and Offender Policy at the Ministry of Justice and is currently the Director General for No Deal EU Exit Planning at the Ministry of Justice.

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Finally, Bob Neill writing in the Times makes clear his view that prison reform can only happen if probation is fixed:-

Time for rethink on a prisons policy that amounts to crisis management

The government’s approach to prisons in England and Wales is failing to deliver.

The prison population has nearly doubled since the early 1990s — currently standing at 82,000 — and forecasts to 2022 suggest that even more people than that will be in prison by then. This is against the backdrop of a £1.2bn black hole in the Ministry of Justice’s finances, with many prisons overcrowded and a rapidly changing prisoner demographic.

There are many people in prison with drug, alcohol and mental health problems, and prison is often not the best place for them to get help. Despite this, we use custodial sentences more than any other nation in western Europe, and we get considerably worse results in terms of turning people’s lives around and preventing reoffending.

The Commons justice committee’s wide-ranging report, published today after almost 18-months of evidence gathering, proposes a range of solutions.

David Gauke, the justice secretary, is right in his assertion that there is a strong case for abolishing short sentences of six months or less altogether — and not purely because it is an easy way of saving money or closing prisons.

The ministry has rightly focused on safety and decency in prisons, however this has come directly at the expense of rehabilitation. We heard robust evidence that poor access to rehabilitation has a cyclical impact on the degradation of regimes and on safety, which can in turn lead to violence and self-harm. There must now be a dual approach to maintain safety and decency, but also improve rehabilitation.

Without doubt, prison will always have a role in dealing with the most serious crimes and those who are a threat to society, but cutting the use of short sentences, and instead properly investing in tough and rigorous community rehabilitation services would go a long way to solving many of the problems I have described.

Almost a third of prisoners are on sentences of less than 12 months. Better access to support and opportunities for offenders would reduce repeat imprisonment, bring down the estimated £15 billion annual cost of reoffending, and start to alleviate pressure on jails.

It is time for a serious and open public debate about the criminal justice system, the role of prison and its affordability. The government has acknowledged this, but it should happen sooner rather than later so the public can understand the challenging nature of decisions around criminal justice.

No solution is straightforward, but ministers must produce a plan that shows a more joined-up approach to the way we use imprisonment and how that is linked to the rest of the criminal justice system.

At present, we waste unsustainable vast sums of public money, but also fail the thousands of people convicted of less serious offences who need support to move on from their past mistakes. It is time for a serious rethink.

Bob Neill is a Conservative MP and chairman of the justice select committee.

Court IT Failure Inevitable

It would seem the MoJ knew all along that a court IT failure was inevitable. This from the Guardian yesterday:-  

Justice ministry knew court IT systems were ‘obsolete’, papers reveal

The Ministry of Justice knew its court computer systems were “obsolete” and “out of support” long before the network went into meltdown last week, internal documents have revealed. An MoJ digital and technology review warned last year that judges in employment tribunals were threatening to stop hearing cases because of the unreliability of communications and 30,000 users were on systems that needed “immediate remediation”.

The detailed assessment seen by the Guardian blames “historical under-investment in ageing IT systems” and warns that it is reaching “unacceptable levels” of risk which could result in large-scale data breaches. Courts across England and Wales have been disrupted over the past two weeks because of successive IT failures which began when the criminal justice secure email system went down, depriving 75,000 lawyers and staff of communications.

The MoJ’s main computer network linking lawyers, judges, probation workers and court staff also malfunctioned. Cases were delayed, access to the courts’ digital case system was denied and jurors could not be enrolled. The justice minister Lucy Frazer was forced to answer emergency questions in the Commons last Wednesday during which she said there had not been a cyber-attack and also denied the problems were the result of financial cuts.

The internal review, however, makes it clear that long-term underfunding is at the heart of computer weaknesses in the MoJ. The department, which has to pay for courts, prisons and probation, has suffered larger cuts than any other in Whitehall since 2010. Its current funding level is almost 40% lower than it was in 2010.

The MoJ document, entitled Digital & Technology, says: “Historical under-investment in ageing IT systems has built our technical debt to unacceptable levels and we are carrying significant risk that will result in a large-scale data breach if the vulnerabilities are exploited.” It adds: “We have a Technology 2022 strategy, but it is not funded to help us address the long-term issues with current systems and allow us to make best use of new technologies to improve service delivery.”

In one case study it refers to a database used by 16 employment tribunal administrative offices in which the “scale of outage” accounted for 33% of incidents over the previous six months. Users were unable to access systems for a “significant number of hours”. The report cites problems such as “risk of database corrupted leading to data loss; unable to restore service in a timely manner”, and adds: “Judges say they will put tribunal activity on hold because of the poor running of the application.”

Addressing what are said to be “secondary risks”, the document notes: “Failure to reduce and prevent technical debt leading to a continued reliance on obsolete and out-of-support systems that may lead to operational failure and cyber-breach.” The document also contains a series of colour-coded levels relating to “criticality”, ranging from the worst, black, to the least dangerous, green. Among those in the black category were 30,000 users whose systems required “immediate remediation”.

The MoJ said the document was a routine risk assessment of its computer systems. The case study referred to in the document is understood to relate to a different system to the one that broke down last week. A spokesperson said: “Like any responsible organisation, we carry out regular assessments of risks to ensure that we can identify and manage them. It would be entirely wrong to suggest that last week’s IT issues were caused by us ignoring a risk assessment. We have always been clear that there are a number of outdated IT systems that need replacing which is why we continuously review our IT infrastructure and invest accordingly.”

Commenting on last week’s courtroom IT chaos, Chris Henley QC, the chair of the Criminal Bar Association, wrote in a message to members: “Whatever the reasons, and whatever the fix, has anything been more emblematic of the deep and worsening crisis in the criminal justice system than the collapse of IT systems in courts across the country last week? Trials adjourned, evidence inaccessible, secure emails vanishing, wifi down, Xhibit just a blank screen, prisons beyond communication, the stuff of satire, and a high-profile media story for several days … But it’s OK, it had nothing to do with a chronic lack of resources.”

--oo00oo--

Another Guardian article highlights the decimation of the court infrastructure and the effect it's having on the delivery of justice:- 

Half of magistrates courts in England and Wales closed since 2010

More than half of all magistrates courts in England and Wales have closed since 2010, forcing defendants, witnesses, police, lawyers and justices of the peace to travel sometimes more than 50 miles to access local justice. The full scale of the closures is revealed in data published by the Guardian and the House of Commons library. Since the coalition government came to power in 2010, 162 of the 323 magistrates courts in England and Wales have shut – a loss of 50.2% of the estate. The latest was Maidenhead magistrates court in the prime minister’s constituency. Most have been sold.

The controversial Ministry of Justice (MOJ) efficiency exercise is directly tied to the need to generate funds for a £1.2bn digital modernisation programme, which came under the spotlight following a meltdown of court computer systems this week. As large gaps open up in the courts network in Wales, East Anglia and the North of England, HM Courts and Tribunals Service (HMCTS) has confirmed it is considering whether to pay for taxis to ferry defendants and witnesses from the most remote parts of the country to hearings.

The distance model developed by HMCTS requires that 95% of the population should be able to travel to court from their homes by public transport leaving at 7.30am and arriving by 9.30am. It also specifies that 98% of the population should be able to reach court by 10.30am, which implies a three-hour journey to court and a further three hours back – a total of six hours travelling on a court attendance day.

Concern about the shutdowns is rising up the political agenda. The Commons’ justice select committee has launched an inquiry into HMCTS’s reforms. Among questions it is addressing are the impact of closures, reductions in staffing and how far online systems and video hearings can be “a sufficient substitute for access to court and tribunal buildings”.

Including crown courts, county courts and tribunals, since 2010 more than 250 hearing centres have ceased operating. So far £223m has been raised by sales. Treasury funding for the courts digital programme stipulates that a third must be raised by selling courthouses. HMCTS and the MoJ justify the closures on the grounds that crime rates have fallen and large numbers of courthouses are operating at less than 40% capacity. The agency is developing justice websites and remote video screens, which, it is argued, will mean fewer journeys to court.

Critics fear savings will only be achieved by displacing costs on to other agencies. The MoJ has declined to give a commitment about halting closures: six more magistrates courts are scheduled to shut this year. A study by Dr Olumide Adisa of the University of Suffolk found that local court closures have led to an increase in the number failing to attend hearings. The MoJ disputes such figures, saying the rate of defendant non-appearances did not change at the time most closures were enforced, although it concedes figures rose last year.

Sue James, a solicitor at Hammersmith law centre in west London, suspects a similar problem is emerging among claimants fighting repossession orders, leading to more evictions. Housing work in London has been transferred to Clerkenwell county court. She believes “people are not turning up” at more distant and unfamiliar courts.

A row erupted last year over a case raised by a Telford solicitor, John McMillan, a defendant from Shropshire who had to attend a remand hearing in Kidderminster and make a 53-mile journey back home via Birmingham. McMillan says the man missed the last bus in Shrewsbury and ending up walking home in the dark long after midnight. The MoJ does not accept the details, maintaining that the man could have left Kidderminster earlier.

The justice minister, Lucy Frazer, said: “The closure of any court is not taken lightly – it only happens following full public consultation and when communities have reasonable access to alternative courts. We are reinvesting every penny raised from selling these underused buildings into modernising the justice system to provide swifter and easier access to justice for all.” The MoJ is consulting on guidelines for future closures.

John Bache JP, the national chair of the Magistrates Association, said: “Justice should, wherever possible, be administered locally and, with half of all magistrates courts having closed since 2010, many courts are already worryingly remote from the communities that they serve. A more dispersed court estate will affect the retention and recruitment of magistrates, as some will have to step down if their local court closes and people will be less likely to apply in the first place if the nearest court is not in their immediate area. Longer travel distances for magistrates will also increase the cost of meeting their travel expenses.”

Penelope Gibbs, the director of Transform Justice and a former magistrate who monitors the service, said: “Courts are being closed without really thinking through the consequences. Vulnerable defendants and witnesses cannot be expected to travel several hours to attend court and to spend significant sums on doing so. Already many do not turn up for their own court hearing.”

Christina Blacklaws, the president of the Law Society, which represents solicitors, said: “People across England and Wales are losing access to their local courts and having to travel sometimes for several hours on public transport to alternative sites – assuming that such public transport even exists. In addition, police and prison delivery services may suffer increased costs, which will ultimately fall on the taxpayer. There is some evidence of defendants increasingly failing to turn up for criminal hearings, resulting in court time being wasted and witnesses being inconvenienced, as well as cost to the public purse.”

Examples of long journeys to court

Residents of Staylittle in Wales have a 1 hour and 50 minute car journey (74 miles) to Caernarfon criminal justice centre, the designated “receiving site” for Dolgellau magistrates court, which closed in 2017-18.

People living in Kielder in Northumberland were previously served by Tynedale magistrates court in Hexham, 34 miles away. They now have to travel 52 miles to Newcastle upon Tyne magistrates court, which according to Google takes 2 hours and 53 minutes by public transport. Services do not run daily.

In the past, those living in Mildenhall in East Anglia could reach Thetford magistrates court within 18 minutes by car or 40 minutes by bus at certain times of the day. But since it closed in 2013-14 the designated receiving court is Norwich magistrate’s court, a 55-minute drive or an extra hour by public transport, although it can take longer depending on the time of day.

Food for Thought

As we have previously mentioned, Rory Stewart signalled a few weeks ago that the government is minded to effectively outlaw imprisonment of less than six months, a policy he expanded upon in a recent interview with Erwin James. It prompted the following letter:-

Rory Stewart is correct that short sentences are largely ineffective in reducing reoffending and should be used as rarely as possible. Sentencing guidelines used by magistrates are, however, already clear that custody must be only be used when there is no appropriate alternative. The proposed “presumption against” short prison sentences would therefore be unlikely to make any significant difference. Indeed, this has been demonstrated in Scotland, where a government evaluation of the impact of their recently introduced presumption against short prison sentences found that in practice it has had a minimal impact on sentencing decisions.

If the Ministry of Justice wants to see fewer short sentences, its focus should instead be on ensuring that effective community sentences, including appropriate options for women and treatment for people with mental health, drug or alcohol problems, are available in every area of the country. Magistrates should also be given the power to review the progress made by an offender serving a community sentence. This would enable us to impose community sentences with confidence, knowing that they will help offenders to turn their lives around.

John Bache
National chair, Magistrates Association

But lets look at the context. This from the Guardian:-

Rise in recorded crime is accelerating in England and Wales

The rise in crime in England and Wales is accelerating, according to police figures, which show a 14% year-on-year increase in offences recorded by forces across England and Wales. Knife crime has gone up even more steeply, by 21% in the 12 months to September, and gun crime has risen by 20%, according to quarterly figures released on Thursday.

Police chiefs said the increases – including a 32% rise in domestic burglary to 261,965 offences and an 18% rise in vehicle-related crimes (443,577 offences) alongside the sharp rises in violent crime – marked a turning point after more than 20 years of sustained falls in these categories.

“Today’s police officers are dealing with more complex crime, more safeguarding and protecting vulnerable people and an unprecedented terror threat, as well as tackling some of the genuine rises in knife and gun crime, robbery, burglary and vehicle-related crime – crimes which turn the trend on many years of reductions,” said chief constable Bill Skelly, of the National Police Chiefs’ Council.

Meanwhile, official figures show that the number of police officers in England and Wales has fallen by 930 in the past 12 months, to 121,929, the lowest level since comparable records began in 1996. Police officer numbers are now 22,424 below their peak in 2009, when there were 144,353 officers.

Then there's this from the Independent:-

Justice system in ‘crisis’ as only 8% of crimes prosecuted in England and Wales

Tens of thousands more crimes are not being prosecuted amid warnings of a worsening “crisis” in Britain’s criminal justice system. Almost 92 per cent of offences do not result in perpetrators being charged or summonsed in England and Wales, with the number of offences taken to court dropping by almost 30,000 in a year.

Lawyers, police officers and victim support workers interviewed by The Independent blamed a perfect storm of police cuts, rising crime, rows over disclosure, falling confidence and the backlash to a series of collapsed rape cases. Figures published by the Home Office show in the year ending September 2018 only 8.2 per cent of 5 million recorded crimes were prosecuted, down from 9.5 per cent the previous year. The lowest figures were for sexual offences (4 per cent), with only 1.9 per cent of recorded rapes prosecuted – down from 2.4 per cent the previous year. Nick Thomas-Symonds, Labour’s shadow solicitor general, said the statistics made “very worrying reading”. 

“This is, sadly, no surprise given the swingeing government cuts to both police and Crown Prosecution Service budgets,” he added. “The government has to step up to the plate and provide the resources needed to properly support victims and ensure that no stone is left unturned in bringing people to justice."

The reason for closing almost half of investigations was that no suspect had been identified, but almost a third were listed as “evidential difficulties”. There was a sharp rise in the proportion of cases recorded as “victim does not support action”, increasing to 42 per cent for violence, 35 per cent with rapes and 29 per cent of sexual offences. The victims’ commissioner, Baroness Newlove, raised concern that lengthy delays, poor conviction rates, demands for phones and personal records, and the prospect of cross-examination were making women drop claims. 

“The very low percentage of rape and sexual violence cases that result in a trial is a huge concern, as are the increasing number of victims who do not want to endure the criminal justice process,” she said. “I am often hearing from victims of sexual crime that their criminal justice journey is as harrowing as the crime itself. This is just not acceptable. I fear we are letting these victims down badly.”

Finally, there's David Fraser who I notice has been plugging his latest contrarian book on the Conservative Woman website:- 

The inescapable fact – growing leniency equals rising crime

From the late 1950s Britain’s official attitude towards crime began to change. Instead of being viewed as bad behaviour that needed to be punished and controlled, it was increasingly judged to be a symptom of a social or psychological malaise. The offender was seen as being forced into crime by poverty, inequality or other forces beyond his control which society could, and should, alleviate. Greed, laziness and the wish to dominate others were no longer recognised as the motives for violent crime. Persistent violent and dangerous criminals, who spurned hard work and thrift as the route to a comfortable standard of living, were rewarded with state protection from prosecution whenever possible, and the guarantee of their human rights, even in the face of their violence and law breaking. What was required, our ruling elites argued, was the application, wherever possible, of non-custodial sentences (even for violent offenders), such as the supervision of offenders in the community, to identify and alleviate the ‘underlying causes of crime’.

This has never worked, either to reform offenders or to protect the public. The re-offending rates of supervised criminals have steadily worsened. Forty years ago they were 41 per cent measured over two years. They are now at least 56 per cent measured over one year. This equates to millions of offences committed against the public every year by offenders trusted with their freedom. Further, between 1998 and 2014 there were at least 6,300 of the most serious violent and sex crimes, such as murder, rape, robbery, kidnapping, committed by criminals on the probation service’s books.

Eighteen-year-old Opemipo Jaji, a violent sex offender, was convicted of making an indecent image of a child as well as robbing and sexually assaulting a 12-year-old girl. Despite his obvious dangerousness, he was given 18 months probation supervision in the community. A few months later, Jaji, having made a routine visit to his supervisor, left the probation office at about 4 pm.

After about five minutes, he fell in behind an 11-year-old girl walking home from school. He followed her, chose his moment and dragged her into a park and subjected her to a violent three-hour assault. While this attack was taking place, his supervising officer would have been putting the finishing touches to his record entry covering the interview. Probably, at the very moment that he closed the file and sat contemplating how well Jaji was doing and the wisdom the courts had shown in not sending him to prison, Jaji was repeatedly raping the terrified child.

During the 1990s the probation service embraced the idea that ‘thinking skills’ programmes, designed by psychologists, could identify faults in the way offenders made decisions and so help them avoid crime. They were hopeful that years of failure could at last be reversed. But four years later the published results showed that not only had they had failed to reform the offenders on these programmes, but that in many cases their offending had increased.

What probation and other officials will not admit is that crimes are not committed because of faulty thinking skills, nor because of some pressing social or psychological need, nor because of problems associated with poverty and inequality, but because the offender chooses to commit them.

Although it is true that many criminals emerge from the poorer or less well-off sections of the community, it is wrong to interpret these conditions as factors which ‘cause’ crime. (An analysis carried out in 2011 found, contrary to what many believed, that countries with greater degrees of inequality and poverty had less crime than those which were wealthier and with more equality). Most people who choose to be violent and commit crime tend also to make life choices that generally keep them in the lower classes of our society. For example they refuse to work at school, are violent, ill-disciplined, demand instant gratification, and fail to plan for the future. This is not to say that they do not have access to money – crime and violence brings many of them a good income and their social station in life can be seen as an indicator of how they choose to live and spend their ill-gotten gains. The fact that the majority of children from poorer home backgrounds go on to live decent law-abiding lives bears out this truth. In 1926, when millions of working-class Britons lived in dire poverty, our violent offender rate was 4.4 per 100,000 of the population. It is now over 1,400.

Swathes of legislation have allowed courts to avoid using imprisonment for increasing numbers of convicted criminals. Yet we are told ‘we send too many offenders to jail’, and many now believe this is a truth written in stone. But it is a trick created by measuring the numbers in prison against our general population. When computed this way, it suggests that our imprisonment rate, per 100,000 of the population, has been rising.



But a moment’s reflection tells us that most of us do not commit crime and are not in that group of persons liable to be sent to jail. Therefore, this calculation tells us nothing about how lenient or severe we are in our use of prison for criminals. A more accurate imprisonment rate can be obtained by expressing the prison population against the number of crimes committed. The following graph shows that our imprisonment rate, when calculated in this way, has, since the 1950s, fallen not risen, and that we are not the ‘prison-obsessed nation’ that the anti-prison lobby would have us believe.



The opposite is the case. Only 28 per cent of offenders convicted of a serious crime are given a term of imprisonment. The public are left to rub shoulders with the remaining 72 per cent, except, of course, the justice elite, whose gated communities in cities and country retreats provide them with a level of security not available to the majority. Generally, they are not affected by crimes committed by those they campaign to keep out of jail. Many who are sentenced to imprisonment do not stay in long. The average sentence length for ‘violence against the person’ crimes is just 23 months, which in practice means 11 months, because almost all sentences are subject to 50 per cent remission.

We do not need psychologists to tell us that if you reward bad behaviour you will get more of it. We should not be surprised that violent crime is escalating. The offenders have taken their cue from us.

David Fraser

--oo00oo--

This about the book and author:-

Based on over 30 years research of government sentencing policy and work in the criminal justice system, David Fraser’s book demonstrates that the State’s increased reliance on alternatives to imprisonment has allowed all categories of violent crime to flourish in Britain; that, the homicide rate, for example, doubled between 1964 and the turn of the millennium; that the numbers of life threatening attacks have increased rapidly over the last 40 years, and that justice officials have hidden this development with a blizzard of deceptive statistics whose purpose is to mislead rather than inform the public.

Anti-prison groups and other apologists for offenders tell the public that violent offenders can be ‘managed’ in the community under supervision to the probation service, that prison doesn’t work because it makes offenders ‘worse’. The analysis presented here shows that none of this is true. Readers will be informed that contrary to the misleading propaganda regularly fed to the public, that parole is a cruel absurdity and should be abolished, that criminals under probation supervision as an alternative to imprisonment, commit hundreds of murders and other serious crimes every year, while the governments own figures, kept away from the public eye, makes it clear that long prison sentences are our best protection against violent (and other) crime, and are effective in encouraging criminals to reform.

The book demonstrates that the death penalty was an effective deterrent to homicide but its purpose is not to argue for its reintroduction. But by acknowledging its effectiveness, we can argue the case for a re-vamped sentencing system that is as effective as was the fear of the hangman’s noose. Evidence shows that the adoption of a 2 or 3 strike sentencing system resulting in mandatory long prison terms would provide the public with a much greater degree of protection. Other English speaking countries who have, in response to public demand, legislated this type of system have found that it discourages further violence and has produced startling reductions in crime.

David Fraser was a senior probation officer and criminal intelligence analyst with the former National Criminal Intelligence Service (now The National Crime Agency). He has had many articles published along with two well received books, the first of which was recommended for the George Orwell Prize in Literature. It provoked wide interest in this country and abroad and was commended to the House of Commons during a speech by an MP. David Fraser is married with two adult children and two grandchildren and lives in the South-West of England.

Growing Digital Disquiet

Some time ago I was told by a well-respected source that the MoJ had a secret plan to close every court in England and Wales and move everything online. Only the Supreme Court and Old Bailey would remain, largely for ceremonial and historic reasons. 

As far as I know, this remarkable ambition has never been acknowledged, and yet its implementation marches inexorably onwards, despite the usual regular catastrophic IT and technology failures. Signs of disquiet are however gaining momentum, as outlined here on the BuzzNews website:- 

Leaked Report Says Moving Justice Online Could Lead To Innocent People Pleading Guilty

Exclusive: Magistrates Association says court reform proposals present “a very real risk of unfair or disproportionate outcomes for the most vulnerable people in our courts.”

Government plans to move more criminal justice cases online could lead to vulnerable innocent people pleading guilty, according to testimony from the Magistrates Association seen by BuzzFeed News. The association, which represents the volunteers who hear most criminal cases in England and Wales, raised many serious concerns about reforms in response to an internal survey from the senior judiciary. Submissions to the Judicial Ways of Working consultation were never intended to be made public. The scale of disquiet about the reforms is apparent immediately. In its introductory paragraph, the association writes: 

“The MA welcomes the underlying aims of the reform agenda to improve the efficiency of the justice system. However, we are alarmed by some of the proposals set out in the Judicial Ways of Working papers. We believe there is potential to erode judicial decision-making powers and undermine established democratic processes and the fundamental principles of the justice system. We also believe that if these proposals are implemented there is a very real risk of unfair or disproportionate outcomes for the most vulnerable people in our courts.”

The document adds to a growing body of evidence that there are serious concerns across the judiciary about the reforms. It is the latest in several leaked submissions, including a scorching assessment by district judges that the courts are “even more broken” following budget cuts and another warning witnesses could be coached off camera in video hearings. As part of its programme of court reform and closures, the Ministry of Justice is proposing to move more pleas online, so that people do not need to come to court to say if they will be pleading guilty or not guilty.

Magistrates usually hear pleas in court which means that even if someone does not have a lawyer, the magistrates or court legal adviser can remind them of the implications of a decision. They are concerned that if online pleas were introduced in all cases, “there is a risk that defendants will indicate a plea without getting appropriate legal advice, possibly without realising the seriousness of the case.”

They added: “An even more concerning outcome may be ill-considered pleas where an individual does not, for example, appreciate that they have a statutory defence or fails to understand the process. This would result in incorrect outcomes, where a defendant is found guilty of an offence of which they are innocent.”

The document, which was leaked to the charity Transform Justice, also showed magistrates concerns that by entering a plea on a computer there would be missed opportunities to identify if a defendant has vulnerabilities that might make it hard for them to understand how best to plea. Because many people facing criminal charges do not have a lawyer, magistrates are worried about vulnerable people’s ability to navigate online pleas and video hearings without advice. So far in proposals Her Majesty's Courts and Tribunals Service (HMCTS) has described the process being completed by a lawyer but there do not appear to be any guarantees.

Magistrates said: 

“Where a plea is currently taken in person by a court, there is the opportunity to ensure they understand the law (for example relating to equivocal guilty pleas) as well as making sure they understand the consequences of a guilty plea if equivocal. Similarly, a not guilty plea could be entered in the mistaken belief that an individual has a defence, when it should actually be seen as mitigation rather than a defence.”

BuzzFeed News revealed in December 2017 that the number of people facing criminal charges without a lawyer in magistrates court was on the rise. A survey of magistrates found 30% of all criminal defendants they saw at their last session had no lawyer, up from 24% in 2014. The means test cut off for qualifying for legal aid in magistrates court has not kept pace with inflation, remaining unchanged since 2008. It was reintroduced for criminal cases by the Labour government in 2006.

Jon Collins, chief executive of the Magistrates Association, told BuzzFeed News “Of course we’re concerned the future of the court system… no one wants to stand in the way of much-needed modernisation of the courts system but it is a complicated programme and I think it’s important that at every step of the way we’re evaluating how it’s going and that it’s delivered in a way that prioritises access to justice and a fair system for all court users.”

The document also shows the level of disquiet about plans to close more courts and get rid of court staff. More than 250 courts across England and Wales have been closed since 2010, a move the government justifies by arguing it is part of a shift towards virtual justice. The department is also planning to axe more than 6,500 court and backroom jobs by 2022.

The association said magistrates were “very concerned about proposals to further reduce the court estate, as well as a very significant reduction in staff. Centralisation risks losing local justice and justice becoming remote from all parties as well as the public – which can only damage public trust and confidence in the system.”

Magistrates also expressed scepticism as to how often video hearings – a key part of the proposed reforms – will be practical or agreed to. The government’s own impact assessment showed that just 36% of people in all age groups use the internet to make calls or web chat. Magistrates said this figure “indicates the percentage of people who might be willing to use video-link technology to give evidence or otherwise engage with legal processes is likely to be low.”

The quality of existing technology is also worrying many in the judiciary. The association said of video-links already in use: “Magistrates report difficulties with establishing connections, as well as the fact that sound quality can be poor. Both of these could severely limit the effectiveness of using the technology.”

Penelope Gibbs, director of Transform Justice, who was leaked the document, said: 

"Another consultation response, this time from the Magistrates' Association shows just how unhappy many judges are about plans to close courts and put cases online and on video. It looks as if staff in courts will be reduced by at least half and many more courts will be closed. The MA is understandably concerned that if the local justice is eroded, trust in the justice system may erode too. Magistrates worry that most criminal charges will in future be dealt with via the closed "single justice procedure" process. This means that defendants who plead guilty of the least serious offences will not see a magistrate or the inside of a court. Magistrates rightly question how a vulnerable defendant might be identified if they have only ever filled in an online form and how victims might see justice done in these cases."

"The MA identifies many potential problems with proposals to encourage defendants to plead guilty or not guilty to crimes online. Let's hope HMCTS has heeded the warnings of magistrates and lawyers who fear vulnerable innocent people may swipe right to plead guilty. In response HMCTS has indicated that only lawyers will be able enter pleas online for defendants accused of serious crimes. But what is serious? All convictions lead to criminal records. So I fear the scope of offences deemed suitable for online pleas by unrepresented defendants will only increase."

The reforms are becoming a concern to MPs of all parties. The Justice Select Committee launched an inquiry last week into the access to justice implications of court closures and the reform programme. Chair of the committee, Conservative MP Bob Neill, said following its announcement: 

“There is no doubt that the HMCTS reforms represent a significant change in the delivery of justice across all areas of the system. While we welcome the intention of modernising the courts and tribunals, the Public Accounts Committee has already raised concerns about the deliverability of the reforms. We are worried about the access to justice implications and will take this opportunity to put those at the heart of our inquiry.”

After reporting on other judicial opposition to the reform programme, the communications director of HMCTS suggested that BuzzFeed News should have mentioned an independent evaluation which showed “a high level of satisfaction” among users of video hearings. While he study included a total of 31 interviews with court staff, lawyers and users about phone and video hearings, he neglected to mention that the sample size of appellants actually interviewed after a video hearing was just two.

A HMCTS spokesperson said: 

“The judiciary and government are working collaboratively on a £1bn reform package to deliver a more accessible, flexible and efficient justice system that is fit for the 21st century. The use of fully video hearings will be carefully developed and tested before being rolled out. They will only ever be used in certain types of hearings, at the discretion of the judge when they consider that it is in the interests of justice to do so. The first pilot took place in the Tax Tribunal last year and was subject to an independent academic evaluation which recommended that the pilots “be expanded”. All court closures to date have been because they are underused, dilapidated or too close to another court, and only after a public consultation.”

A Sad Inevitability 2

With little real news around, I see probation gets a mention in today's Guardian:-

Decline in community sentencing blamed on probation privatisation

Report says courts have lost trust in non-custodial orders being carried out properly

A sharp decline in the use of community sentences is due to trust breaking down between judges, magistrates and the probation service after privatisation, according to a study by a justice thinktank. Since 2011, there has been a 24% fall in the number of non-custodial sentences imposed in England and Wales at a time when Scottish courts are using them far more frequently.

A report by the Centre for Justice Innovation (CJI) blames the decrease chiefly on disruption caused by changes introduced by Chris Grayling when he was justice secretary. Those changes split the former probation service into privately operated community rehabilitation companies (CRC) and a residual National Probation Service (NPS), which only deals with high-risk offenders.

Judges and magistrates remain largely unaware about what happens after they hand down a community sentence, the report, entitled Renewing Trust, says. Few of them witness the progress of, and compliance with, court orders. Many on the bench still want to use community sentences, recognising them as a vital option, says the report. “It is simply that their trust in them has been dented recently, largely by reforms imposed by policymakers on hard-working probation practitioners in both the NPS and CRCs.”

At his annual press conference two weeks ago, the lord chief justice, Lord Burnett of Maldon, acknowledged recent difficulties. “There were very profound problems in the delivery of the monitoring and implementation of community sentences for some time and … as a result, judges did lose confidence in it,” he said.

“It was simply that it became clear that many people were not complying with the orders, were breaching the orders, and little, if anything, was happening … The Ministry of Justice has been working hard with those who deliver community sentences and that problem is being resolved and so the confidence of sentences both in magistrates courts and crown courts is increasing.”

The CJI report found the number of drug rehabilitation and mental heath treatment requirements being issued by the courts had fallen by more than half from peaks earlier in the decade. A shortage of funding for treatment in community places was also blamed.

Phil Bowen, the director of the CJI, said: 

“Despite the best efforts of practitioners on the ground, our report shows that the trust of sentencers in community sentences is fraying. While sentencers still see community sentences as a vital option, the combination of cuts to justice budgets and the government’s poorly implemented privatisation reforms to probation means that their trust in probation’s ability to deliver them has been dented over the past six years.”

Commenting on the report, John Bache, the national chair of the Magistrates’ Association, said: 

“We share [this report’s] concerns about magistrates’ confidence in community sentences … There is an urgent need to ensure that effective community sentences are made available in every area of the country. Sentencers should also be given opportunities to review the progress made by offenders on community sentences. This would enable magistrates to give community sentences with confidence, knowing that they will help offenders to turn their lives around.”

Latest From Napo 179

I've just noticed that the last time I featured a blog post from the Napo General Secretary was in August, which probably says as much about the content as it does about my editorial skills. Anyway, here we have the latest blog post, somewhat belatedly referencing a year-old report from the National Audit Office and evidence from the Magistrates Association that's several months old:-

Sodexo hit the panic button on pay

Just as was predicted at our recent AGM, the news of the current NPS pay offer has spooked CRC owners who are understandably worried that they will lose staff across to better paying employers, (well actually, the NPS to be precise). News reaches me of NPS vacancy pages on the internet receiving record numbers of hits, and examples already in of CRC staff voting with their feet despite taking a hit on continuity of service and deciding that reaching their pay maximum in a lot less time than they would have, is simply well worth it.

This is another example of the "pay war" that now blights the fragmented probation landscape and it's yet another scenario that Napo predicted ages ago once the idiots who perpetrated TR created a "free market".

Sodexo are of course one of the two big players in CRC world and the size of their organisation means that they could easily match the going pay rate (subject to the NPS offer being accepted by the unions). This is the same Sodexo who I remember asking us in the spirit of partnership some months ago to keep them posted on developments on NPS pay. Not unreasonably the unions asked for an urgent meeting to consider the implications of the NPS offer, but heard last week that this employer has just gone and done what it has always done (remember the great EVR avoidance scandal) and imposed a sub-standard award. Presumably, they hope that their employees will be so grateful to receive anything that they will not shout too loudly.

Cynical does not even begin to describe it. By the way, I am told that there are quite a few vacancies in the NPS within some of the areas where Sodexo is operating.

Magistrates join in to heap pressure on Ministers

Below are a few key headlines from the excellent response by the Magistrates Association to the MoJ "Strengthening Probation, Building Confidence" consultation that sits well against some of our key objectives in our reunification campaign.

To see the full document click HERE - but a number of key themes catch the eye:

Continuity is viewed as vital for successful rehabilitation and release. The MA stresses that continuity of the Probation Officer from sentence to release can improve desistance and help prisoners resettle. This runs contrary to the plans under the OMiC review to diminish the role of the community based practitioner.

It’s also suggested that Benches must write a report every time they sentence someone to 3 months custody or less which is especially supportive of our own and others campaigning to bring about the reduction or abolition of short term sentences.

Following on from one of the key aspects that featured at our professional session at AGM this year, the MA also says that Probation must provide bespoke interventions for vulnerable and minority groups such as women and BAME clients. Given the reluctance or inability of CRC providers to invest in this area it is something that the state must move to provide if it is serious in trying to move the recommendations of the Lammy Review into real actions.

On the need for a Licence to Practice, the Magistrates support the concept and point out that it should be mandatory for all providers, saying that it needs to be an assurance indicator of quality for the CRCs .

So does the NAO

The National Audit Office is another independent body who monitors the use of public money by our elected politicians. It never stops short of telling it like it is in terms of its findings about which particular drain the taxpayers money has gone down, and yet again it has come up trumps in identifying the mysteries of the bung money that has gone the way of the underperforming CRCs.

CLICK HERE

Coming as it does on the back of a raft of HMI Probation reports, and the strongly worded rebuke letter from Bob Neill and the JSC to David Gauke’s consultation, it is even more incredible that anyone seriously believes that a new round of CRC contracts will repair the damage.

Senedd pitches in on #reunification

Seems like it’s a long queue then, as news reaches me of the debate in last week’s plenary session at the Welsh Assembly where the Government called Probation a “national embarrassment” but its staff “heroic” as the Senedd debated the future of probation in Wales.

The decision to put Offender Management work back to the NPS is obviously welcome but anger over the apparent plans to leave interventions and programmes out there to some other bidder is as unpopular in Wales at is this side of the border.

Ian Lawrence

--oo00oo--

This from Napo News online:-

The Welsh government called probation a “national embarrassment” but its staff “heroic” as the Senedd debated the future of probation in Wales this week.

On 23rd October the Welsh Government debated the future of probation in the context of the new proposed model for Wales announced earlier this summer. Napo Cymru, and in particular Su McConnel, have worked tirelessly to keep the Senedd up to date on Napo’s position, campaigns and the view of Napo Cymru. With devolution becoming an increasingly debated topic, and particularly the devolution of justice to the Welsh government this was a well-attended and interesting debate.

Alun Davies, Cabinet Secretary for local government and public services, said that the Welsh government acknowledged that the probation service was in “chaos” around the split and was failing to protect victims. The debate focused on what has gone wrong but also on the importance of the Welsh government being involved from the outset of any future design for the service.

Leanne Wood, former probation officer, former leader of Plaid Cymru and member of the National Assembly said that probation had diminished to the point where offenders have not been monitored and public safety had been reduced with tragic consequences. She cited the murder of Conner Marshall, whose mother Nadine has campaigned alongside Napo about the dangers of TR and the impact of poor quality CRC case management. Leanne agree with Napo Cymru that to shoe horn probation into a market driven model will and has failed.

“Introduction of a profit element into the management of offender’s risk is obscene and should never have been considered in the first place”, she said. She also went on to highlight that staff have been treated appallingly in recent years.

Other Assembly members also raised the impact on staff. Julie Morgan quoted Napo Cymru and their briefings on a demoralised workforce. She called for a need to rebuild staff confidence and trust and pays tribute to officers who have struggled heroically in an impossible regime.

So strong is the Welsh government’s determination to take probation out of the private sector, even UKIP were onside in the debate. With Wales facing a very different model to England in the new round of contracts, Napo Cymru with national support will continue to lobby the Senedd on a unified public probation service. The future of probation in Wales is starting to look promising.

Tania Bassett, National Official