Sentencing Review 3

Mr Jones has spoken:- 

A statement from HM Chief Inspector of Probation, on the launch of an Independent Review of Sentencing

Last week the Lord Chancellor announced an Independent Review of Sentencing, which will be chaired by former Lord Chancellor, the Rt Hon David Gauke, and supported by a panel including representatives from the judiciary and expertise from across the justice system.

I believe this review represents a unique opportunity to deliver a more effective system, resulting in better use of resources, lower reoffending rates, fewer victims and safer communities.

The decisions HM Inspectorate of Probation stands ready to support this work, using our findings to highlight options for the future of probation, and its consequential impact on prisons, and I have shared my initial thoughts, as detailed below. 

• Use of community orders and sentence lengths 
• Increasing the use of deferred sentences 
• Length of licence periods
• Recalls 
• Better support in the community

Use of community orders and sentence lengths:

I have no hesitation in arguing that serious, violent or sexual offenders should receive custodial sentences which are long enough to punish, deter, and protect the public. However, whilst prison must be there for the most serious offences, based on the Ministry’s published evidence there is a compelling case to move less serious cases from prison into the community. There, a better resourced, more stable probation service, working closely with local partnerships, would reduce reoffending, keep communities safer, and prevent future victims. Far from being soft on crime, such a move is smarter and demonstrably more effective. This approach would also enable our prisons to become safer places, where successful rehabilitation can become the expectation, rather than the exception.

The shift in numbers over the last decade is stark. In 2012 c150,000 people received a community sentence, and it was the mainstay of the work of probation. By 2023 that number had more than halved to c71,000. Over the same period the growth in post-sentence supervision has meant that the probation service is spending a far greater proportion of its resources preparing prisoners for release and supervising and enforcing licence conditions. C137,000 people are currently subject to pre or post release supervision. This is in spite of the fact that we know that well-delivered community sentences may be more effective at getting to the root of the causes of crime and reducing reoffending.

Given the extent of the shift, a new strategy is now needed to reinvigorate and rebuild sentencer and public confidence in community sentences. Whilst undoubtedly punitive, short custodial sentences do little to achieve rehabilitation and creating a statutory presumption against their use could reduce reoffending. In youth justice there is a minimum four-month threshold for a Detention Training Order which works effectively.

I note the recent Judicial Critique on sentence inflation and believe that through a non-partisan review of the evidence it may be possible to reverse the inexorable, expensive and, in reality, ineffective increases in sentence lengths we have seen over the last three decades. Such a move would enable the Government to better refocus the finite resources available to reduce reoffending, ensure rehabilitation in our prisons, and better support intervention and supervision in the community on licence.

Increasing the use of deferred sentences:

Many of those that end up in contact with the criminal justice systems are there because of their underlying issues. People in prison are more likely to have: 

• spent a childhood in care; 
• experienced abuse as a child; 
• failed to have gained qualifications, or been excluded from school; 
• been unemployed or homeless; 
• suffered depression or other mental health issues; used class A drugs or misused alcohol.

A short time in prison will fix none of those underlying issues, nor will a short period on licence; feeding the revolving door of reoffending.

In France, some custodial sentences are not served immediately. Judges who believe custody is merited can instead provide a window for an individual who has committed a crime to turn their lives around before they invoke a prison sentence. People have an incentive to engage and receive credit where that opportunity is taken. The sentencing review might consider the case for a similar approach involving deferred sentencing for those with entrenched underlying issues. Local partnerships, led by probation, could work to deliver better provision, tackling these challenges which are cross-cutting local and central Government. For less serious offences it may be possible to deliver similar outcomes through use of conditional cautioning (with requirements that must be fulfilled).

Length of licence periods:

Whilst we can make better use of our prisons, there will always be people whose offences are so serious that detention is the only answer. All prisoners must be released when they have served the relevant part of their sentence, or (for the most serious cases) when they are no longer judged a risk to the public. At that point they need to be supervised for long enough to ensure the public are protected, but there is a risk that excessive licence periods can be a sword of Damocles, which do not allow people on probation to move on with their lives.

As sentences have grown longer, so has the number of people being supervised by the probation service. Nearly 60% of the service’s caseload are people being prepared for release or being managed in the community. This has been a seismic shift of focus. As a result, there is a danger the probation service becomes focused on supervision and ensuring compliance with rules rather than seeking to turn lives around. It would be reasonable to consider pruning that caseload. Until 2014, those serving less than twelve months in custody were not supervised by the probation service at all, nor could they be recalled to custody.

The sentencing review could usefully consider shortening those licence periods to give the probation service more time and space to better manage the cases where its supervision can make the most difference. Before the Criminal Justice Act 2003 there were periods where people on probation were not supervised on licence, but would instead face a tougher sentence if they reoffended in their “at risk” period. Such changes would also limit recall numbers.

Recalls:

Whilst, for understandable reasons, there has been a focus on the remand population which has been driven up in recent years by the Crown Court backlog; the fastest growing part of the population over the last two decades has been the recall population. This has been driven by sentencing changes including the now abolished IPP sentence, and an increase in the number of people supervised and subject to recall.

In the year 2000, the recall population was under 1,000 (even then a record high). By 2010, as a result of sentencing changes including growing licence periods and a reduction in judicial oversight of recall, it had increased to over 5,000. According to the last published figure the recall population now stands at 12,199 which equates to 14% of the total prison population. Recent increases have been driven by the extension of supervision to short sentences, and the underlying fear of serious further offending. According to official figures over 2,000 prisoners are recalled to prison every month. Whilst it is important that licence conditions are enforced, it is unclear to me what this scale of recall is achieving.

Recall can be a vital tool to protect the public when there are signs that a person on probation’s risk has increased. I am certain that a timely, well-judged recall keeps the public safer – particularly where there is high risk (as seen in our independent reviews of cases like McSweeney and Bendall). However, it may not always be necessary. Despite the twelve-fold rise in the recall population, there is little to indicate that the overall rate of serious further offending has changed significantly over the period. In 2009-10 there were 273 convicted SFOs. In the latest year for which figures are available (2021-22) there were 288. The number of SFOs remains broadly stable at close to 300.

According to the publishes figures on reasons for recall, the majority of recalls are for non-compliance (39 per cent), failing to keep in touch (17 per cent), failing to reside (13 per cent), or problems with drugs and alcohol (4 per cent). These figures support my assessment that recalls are inexorably linked with pressure on the probation service, a lack of confidence, and a lack of adequate support in the community.

I would fully support moves to draw upon international evidence to reimagine the way in which recall is used. In most common law countries (including Scotland, Canada and New Zealand) there is judicial oversight by the courts, or the Parole Board, of executive use of recall. It is noteworthy that the recall population started to rise steeply following the removal of judicial oversight of recall in the Crime and Disorder Act 1998. Under Canadian law, there is a statutory requirement that even if a prisoner’s recall is endorsed by the Canadian Parole Board, a new automatic release date is calculated to avoid a situation where prisonersare released with no supervision by probation. They argue this keeps the public safer, and I am minded to agree.

Better support in the community:

We know from the evidence that having a place to live, the opportunity for employment, help with drugs, alcohol or mental health problems, and support in the community, are key to reducing reoffending. However, the unsustainable pressures on prisons, probation and local services make this extremely difficult to achieve. The high rates of recall and reoffending we see at present demonstrate that there is much more to do to improve preparedness for release. I am hoping that we will identify some helpful lessons through our planned Approved Premises inspection programme which is due to commence in 2025, and our upcoming national inspection of the Probation Service.

In recent inspections HM Inspectorate of Probation have found that recall is often the result of a lack of support in the community. In essence a lack of help with drugs, alcohol, mental health, and accommodation, combined with probation officers being under too much pressure to spot early warning signs, precipitates a “crisis” that results in recall. Avoiding that crisis by earlier action would represent a significantly better use of resources. Although unpalatable, it may be necessary to move a proportion of offender managers in custody to better manage people in the community.

Based on the annual cost of a prison place, the 12,000 recall population currently costs the taxpayer c£600m a year. I am certain that, through prudent change, that number could be reduced and some of those resources could be reinvested to better manage people in the community. It is noteworthy that Youth Justice Services tend to achieve better results because they have strong statutory partnerships and local leadership to get to the heart of the reasons children offend. Within a national organisation it should still be possible to provide delegated local budgets which empower local probation leaders to work with local partners to design and develop services that are capable of breaking the destructive cycle of reoffending.

Here Come the Algorithms

Oh look! All that multiple data-inputting isn't a waste of time after all. That army of bureaucrats at MoJ/HMPPS HQ have a cunning plan to 'mine' the data according to this on the UK Authority website. From the people that gave us OASys and the 'create report' button, what could possibly go wrong? 

MoJ considers digital service for probation recalls

The Ministry of Justice (MoJ) is beginning to look at setting up a digital service to manage recalls of offenders on probation. It has gone public with plans for a discovery project, with a possible escalation to beta, publishing a market notice for support from the private sector.

The ministry is apparently leaving its options open, not specifying details of the length of the work or a projected budget and reserving the right to issue a separate tender for phases after the discovery.

It says the purpose of the work is to understand the needs of probation staff in making appropriate and timely recall decisions and whether a digital service could help. Staff to be able to see relevant information about parolee and understand the procedures and guidelines for making recall decisions.

The initiative has been prompted partly by the MoJ review into the case of Joseph McCann, who was given 33 life sentences at the Central Criminal Court in 2019 for a series of violent sexual attacks committed while he was supervised on licence by the National Probation Service, having been released from prison automatically earlier that year.

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It's the inevitable development of all those electronic data mining tasks you perform each day, the birth of the algorithm to replace the incompetent humans who cast doubt upon & undermined her previous successful TR1 project: TR2: Romeo's Revenge - this time it's personal.

"MoJ says the purpose of the work is to understand the needs of probation staff in making appropriate and timely recall decisions and whether a digital service could help. Staff to be able to see relevant information about parolee and understand the procedures and guidelines for making recall decisions."

Recall and Scapegoating

Yesterday saw publication of the second part of the Probation Inspectorate's report into the handling of the Joseph McCann case. There remains widespread anger and concern amongst practitioners that they continue to be 'scapegoated' for the consequences of what are essentially organisational policies and procedures.     

Foreword 

The power to recall a person to prison is a significant one. It is one of the most important decisions probation officers make and over 27,000 of these decisions were made in 2019/2020. The immediate consequences for the recalled prisoner are self-evident, but the decision also has consequences for victims, potential victims and the public at large. In part one of this independent review, published in June 2020, we reviewed the case of Joseph McCann and expressed serious concerns about decision-making in relation to recall during the period 2017 to early 2019. We have not found a repeat of those concerns in part two, our review that looks at current recall culture and practice in the period since then. Probation staff are clear that public protection is the primary concern in recall decisions, and this was reflected in the cases we reviewed. 

Recall decisions are often complex and frequently rely on the analysis of detailed information and behaviour. It is important, therefore, that they are supported by a methodical, consistent and fair process. The National Probation Service (NPS) and Community Rehabilitation Companies (CRCs) currently have different processes for recalling individuals, and these are applied inconsistently. It is important that recall decision-making is prioritised and operational staff are given the necessary time and management support to make effective decisions. Probation staff have concerns about the professional and personal consequences if they fail to instigate a recall and a high-profile incident subsequently occurs. A professional culture needs to be at the heart of recall decisions. This requires a consistent process and operational staff having the confidence that they will be supported if they make considered, defensible decisions. 

We have found that the current system for licence warnings, which are designed to prevent the need for a recall, varies both between and within organisations and its effectiveness has not been evaluated. Nearly all of the cases we reviewed where a warning had been issued still resulted in recall, raising questions about the impact of this approach. Furthermore, license warnings are not subject to additional scrutiny outside of the normal management oversight of cases. This requires urgent attention. It potentially results in inconsistent licence enforcement and is also unfair from the perspective of procedural justice. Alternatives to recall are often used alongside licence warnings, but the effectiveness of this strategy has not been reviewed since it was implemented in 2017. We are satisfied that when alternatives to recall are considered they are balanced against the requirements of public protection, but there is inconsistency in both their accessibility and use. 

Decisions on recall and licence warnings often rely on the judgement of individual practitioners, but these decisions and practice judgements are not routinely monitored for bias and unconscious bias. Disproportional outcomes, particularly for black, Asian and minority ethnic service users, have been identified in other parts of the criminal justice system, but they are not routinely monitored in relation to recall decisions. This needs to be addressed to ensure that recall decisions are routinely scrutinised and any learning can inform improvements in probation practice. 

Decisions on recall and licence warnings are complex. Across the nine organisations we inspected, there were examples of responsible officers taking recall decisions to protect victims, potential victims and the public. There were also examples of probation staff coordinating comprehensive support packages for individuals in an attempt to break entrenched patterns of criminal behaviour. This professionalism should be built on with the aim of developing a confident, professional organisational culture. To this end, our recommendations are designed to strengthen the process and support probation staff in their decision-making.

Justin Russell

HM Chief Inspector of Probation

Executive summary 

Context of the review 

On 05 March 2020, the Secretary of State for the Ministry of Justice announced that an independent review of the case of Joseph McCann would be undertaken by Her Majesty’s Inspectorate of Probation. The review would be in two parts. Part one was to focus on the supervision of Joseph McCann by the National Probation Service (NPS) and part two would review the current probation culture and practice in respect of recall. Part one was published on 30 June 2020. This report constitutes part two of the review. 

Part two was completed against the background of COVID-19. Nine probation providers were involved in the review and 39 meetings with managers and operational staff took place remotely via video or telephone conference during July and August 2020. We inspected a sample of 50 release licence cases that had been recalled or had warnings issued between October 2019 and February 2020. Where available, we also interviewed the allocated responsible officer. The case sample predated the probation exceptional delivery model (EDM) introduced at the end of March as a result of the COVID-19 crisis. The EDM ensures that public protection continues to be the priority for probation providers. The learning and recommendations from this inspection apply to probation practice both before and after the introduction of the EDM. 

Recall decision-making and threshold 

We found that public protection and the protection of victims are central to probation service decision-making on recall. Operational staff are clear that this is the primary focus of recall practice. Alternatives to recall are routinely considered where appropriate, but this does not compromise the focus of decision-making on public protection. 

In 2019/2020, 34 per cent of recalls included a failure of the service user to keep in touch with their supervising officer as the reason. Responsible officers make impressive efforts to engage non-compliant service users and often put comprehensive support packages in place. These cases are resource-intensive and frequently result in a recurring cycle of release and recall. 

Licence enforcement and recall requires a consistent process that must allow for individualised decision-making. It is rarely a simple decision and probation practice must allow for the key information to be assessed and reviewed. Responsible officers require the necessary time and management support to obtain and analyse information and make good decisions. Office practice and procedures should enable such a process to ensure that recall and warning decisions are defensible and not overly cautious. We found that this varied between offices and organisations. 

Probation organisations have communicated the Recall, Review and Re-Release of Recalled Prisoners Policy Framework (RPF)2 to their staff, but staff and managers’ knowledge of the specific processes and criteria is inconsistent. Operational staff were, however, clear that decisions on recall must focus on increases in the risk of serious harm linked to previous patterns of behaviour. Communication of the revised framework has been stronger in the NPS than in the CRCs, but communication within individual divisions has not been part of a coordinated national strategy. This lack of coordination has reduced the impact of a key national policy. 

Licence warning and alternatives to custody 

A breach of licence conditions does not automatically result in the instigation of recall. Where probation providers assess that individuals can still be managed safely in the community, they can issue a licence warning. Licence warnings can be accompanied by amended licence conditions. These may include increased levels of contact; cooperating with activities such as drug testing; or additional restrictions in relation to residence or curfew. 

Current licence warning practice is inconsistent both between and within organisations. There are inconsistencies in the threshold, recording and delivery of warnings. This makes it difficult to identify cases where the service user has been warned and not recalled and to operate effective quality assurance processes. In most cases where warnings have been issued, recall to prison is still the eventual outcome. This underlines the need to review practice and issue a revised licence warning process. 

Practitioners now take a balanced approach when deciding between recall and alternatives to recall, and this approach is considered good practice across organisations. However, access to and use of alternatives to recall, such as approved premises (APs) and electronic monitoring, are inconsistent. Probation organisations have not analysed the effectiveness of the overall strategy on alternatives, or whether it averts or simply delays an eventual recall. The role of APs as an alternative to recall requires clarification. NPS responsible officers, in contrast to AP managers and staff, regard APs as an important alternative to recall.

Quality assurance 

Rates of recall vary both between and within organisations. This variation cannot be accounted for solely by the circumstances of the individual case. In the NPS, divisions receive information on performance on a quarterly basis. This includes the number of recalls and the reasons for them, along with the number of licence variations. There are no performance targets in relation to recall numbers, but the reports highlight local delivery units where recall rates significantly deviate from the national average. NPS divisions use this information to monitor variations. The CRCs generate information on recalls as part of their enforcement monitoring. Again, there is no performance target for the number of recalls, and organisations do not monitor any actions taken as an alternative to recall. CRCs do, however, monitor the rates of recall. For example, one CRC identified a low rate of recalls and amended its practice as a result. 

The routine quality assurance of recall decisions is reliant on each senior manager’s endorsement of the practitioner’s decision as part of the decision-making process. Licence warning decisions are not the subject of any targeted monitoring or review. Some probation providers use the national Alternative to Recalls and Recall Report Part A quality assurance tool, 3 but this focuses on recall cases only rather than looking also at cases where recall was decided against. NPS London and NPS North East have undertaken their own quality assurance and dip-sampling initiatives to monitor recall cases for disproportionality. However, probation providers do not routinely review recall decisions to check for bias and unconscious bias. 

Organisational culture 

Recall culture and practice are directly influenced by national policy and high-profile serious case reviews. In recent years there was a widespread belief among operational staff that recalls should be minimised. More recently there have been fears that responsible officers will be unfairly held responsible for any adverse consequences resulting from a failure to instigate recall. Both perceptions undermine professional decision-making, which must be at the core of the process. The current correct balance between alternatives to custody and public protection is understood by operational staff. To ensure operational staff do not become too cautious in their approach, there needs to be a consistent decision-making process both for recalls and decisions not to recall. The development of a professional culture depends on operational staff feeling confident that defensible, professional decisions will be supported if a serious incident does occur involving a person under supervision. 

There are significant differences in recall practice and culture between the CRCs and NPS divisions. These include differences in the level of management endorsement; staff expectations; the understanding of the RPF; and differences in types of recall. These differences were recognised by Her Majesty’s Prison and Probation Service (HMPPS) Wales in the training activities its staff undertook in the three months after reunification in December 2019. The NPS divisions and CRCs in England should learn from this example. Given the importance of recall decision-making, the NPS and CRCs should prioritise communicating the RPF to staff and embedding a consistent recall process when they are re-joined. 

Public Protection Casework Section (PPCS) and the post-recall process 

The relationship between the central HMPPS PPCS and probation providers operates efficiently. Emergency and out-of-hours recalls are processed promptly, and the PPCS’s advice on the recall threshold is viewed positively by both senior and operational managers. 

Following a standard recall, both responsible officers and the PPCS can review cases and decide to re-release a recalled prisoner under the executive release scheme. The operation of executive release is inconsistent. Responsible officers are uncertain about the operation of the process and the number of releases varies between providers. Consideration for release should not depend on which organisation a person is supervised by. The administration and use of the process should be reviewed. 

The PPCS must refer all standard recall cases to the Parole Board within 28 days of a prisoner’s return to prison. This includes consideration of the Part B risk management report that responsible officers submit to the PPCS within 10 days of a prisoner’s return to custody. This timescale allows time for prisoners to make representations to the Parole Board on the contents of the document. Part B risk management reports include a recommendation as to whether the prisoner should be re-released. The current process for completion is not working efficiently. To complete the report within the timescale, responsible officers must have quick access to prisoners immediately after their return to prison. Access, however, is inconsistent and responsible officers are frequently left without the necessary information to make an informed recommendation on re-release.

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Comments from yesterday:-

Probation staff felt “pressure” from the government to send fewer criminals back to prison for committing new crimes or breaking their licence conditions, a watchdog has found. HM Inspectorate of Probation said a sharp drop in the rate of recall to prison across England and Wales from 2016 onwards was linked to policy changes, and that a reversal was only sparked by a high-profile murder case. Senior National Probation Service (NPS) leaders said that when an “alternatives to recall” strategy was implemented four years ago, there was "pressure from the Ministry of Justice to reduce the number of recalls in their divisions". Someone should take the hit for this.

******
"I agree. I really don't think it's fair for Probation Officers and Probation Service Officers to be SFO'd, investigated, suspended then sacked for not recalling Offenders when encouraged and pressured not to recall. I now upload all email communications to Delius that involve recall or not to recall decisions, this would have been unthinkable for me a decade ago."

The Game of Life on Licence

Yesterday the funerals were held for the two murdered victims of the London Bridge tragedy of 29th November involving people attending a Learning Together event at Fishmongers' Hall. 

As more details emerge, an article in the most recent edition of the London Review of Books serves to not only put the terrible event into some context, but also shed some very uncomfortable light regarding the current state of the probation service under the dead hand of Civil Service control. I'm increasingly coming to the view that it's no longer fit for purpose and selected the following passages which I believe graphically illustrate how the whole probation ethos is being steadily destroyed under pernicious NPS control and as a direct consequence of TR:- 

Life on Licence   

John​ is one of more than 250,000 people in Britain living under the supervision of the probation service. He got out of prison in April 2018, when his sentence still had some years to run. I met him while I was reporting on the shortcomings of the law on joint enterprise. In 2005 he had been convicted for murder after a man died as a result of injuries received during a burglary John was involved in – injuries John did not inflict. Following a 2016 Supreme Court decision finding flaws in the law, John appealed and his conviction was overturned: he was sentenced to 18 years for manslaughter instead. Since he had already served more than half that time, he was released on licence.

John’s probation officer found him a room in a shared house in Openshaw, in Manchester. The landlord claimed housing benefit on John’s behalf, and sent a man round each week to collect a portion of his Jobseekers’ Allowance in cash. The company managing the property claimed to be providing ‘supported’ accommodation, but there was no evidence of any support when I visited. Its website gives no information about the services provided and the ‘About Us’ section consists of just a few stock photos and the letter ‘x’, as a placeholder. It’s a private company registered as a non-profit with the Regulator of Social Housing, but the house John was living in belongs to the father of the two men described as company directors at Companies House.

John had almost no money, and had to walk three and a half miles to his probation appointments, and a mile and a half to sign on, unless he could get cash for the bus from one of his sons. ‘It’s fucking burning my head out,’ he told me. ‘I can’t even get a haircut.’ One of the conditions of his tenancy was that he wasn’t allowed to work because this would mess up his housing benefit. When he got a job as a building labourer the landlord gave him a week’s notice. ‘Maybe next time I speak to you I’ll be in Strangeways,’ John texted me.

His probation officer wasn’t much help, and the room he eventually found in a hostel in Cheetham Hill came from a charity for ex-prisoners. For a while he was happier: the facilities were better and he felt validated by having work. He attended the graduation ceremony for the Open University degree he had taken in prison, an experience that wasn’t wholly positive: ‘It just seemed like I shouldn’t be there,’ he told me in a WhatsApp voice note, ‘that I was like the black sheep in a swell of good, law-abiding people ... I felt I didn’t deserve to be there.’

He hoped to move to Cambridge, where researchers he had met through a prison education programme called Learning Together had promised to help him find a job. He had come across Learning Together at HMP Grendon in Buckinghamshire, where he also received therapy for the first time after a lifetime of anxiety and negative feelings about himself, exacerbated by years of addiction and grief over the death of his mother in 1988, when he was 17. The prospect of a job in Cambridge was vague – part-time gardening work at the university and perhaps a role in prison education – but he now fixed on it as representing a more hopeful future.

But his probation officer didn’t seem interested in helping him find accommodation in Cambridge, and he had no prospect of finding a room in the private sector without a substantial deposit, so he stayed in Manchester. At least once he let his frustration show by swearing at the probation officer, and she abruptly ended their conversation. When he missed an appointment because he was at work, she sent him an official warning and threatened to refuse to allow him to attend events organised by Learning Together. He felt bullied. ‘Why even mention the best things in my life? She scares the life out of me ... sometimes I think she’s trying to fuck my thing up for Cambridge.’

For reasons that are unclear, in October 2018 his probation officer told him he had to take a drug test. This had never been a condition of his licence, and his lawyers advised him to refuse. John followed the advice, and 1 November he was sent back to prison – this time to HMP Manchester, as Strangeways is officially known.

Some sense of John’s experience is captured in Probationary: The Game of Life on Licence, a board game commissioned by the Liverpool gallery FACT from the artist Hwa Young Jung. Together with academics from Liverpool John Moores University and probation officers, she held a series of workshops with men on probation in Merseyside. They played chess and the original Game of Life board game, while Hwa Young talked to them and tried to get a sense of their life on probation. Some men drifted out of the group and one of them found Hwa Young’s curiosity too painful. ‘The way I work is with a lot of questions,’ she told me. ‘Is life fair? Why is it not fair? What is the purpose of prison?’

The game, for four players, begins with their release from prison. One character is released to his own home, two to a hostel, one to homelessness. ‘We had a lot of discussion about how much to factor in luck and skills in the gameplay,’ Hwa Young said. ‘We decided it’s mostly luck.’ Players roll dice, and pick up various cards and tokens under the headings ‘Emotional’, ‘Skills’ and ‘Relationships’. An ‘Emotional’ card might tell you that you feel upset because trains passing by your hostel keep you awake – you lose Emotion tokens as a result. Squares that help a player move forward, like ‘Get Forklift Licence’ are green; grey squares, like ‘Break Curfew – Warning Letter’ or ‘Lose Job’, will send you back. The four characters have to ‘check in’ regularly with the fifth player, ‘The Eye’, representing the experience of supervision, who can recall the four players to prison.

The probation system has suffered badly from the ‘Transforming Rehabilitation’ reforms of 2014. Supervision of low and medium-risk offenders was taken out of the direct control of the public sector and contracted out to ‘community rehabilitation companies’, private bodies run by businesses such as Sodexo and Interserve. Post-sentence supervision was extended to all prisoners serving sentences of less than a year, adding around forty thousand people to the rolls but with no increase in funding.

Nobody involved in probation is happy with the situation as it stands. Staff are overworked and often asked to do tasks for which they aren’t properly trained. In the north-west, for instance, the latest report by the Inspectorate of Probation found a 20 per cent shortfall in the number of probation officers. Morale is at an ‘all-time low’, the House of Commons Justice Committee found last year. Some of the 2014 reforms will be reversed from 2021 under the terms of a new plan released over the summer: community rehabilitation companies will be scrapped and responsibility returned to the National Probation Service, which will supervise all offenders, regardless of the severity of their crime or whether they have served a custodial sentence. This has been hailed in the Guardian and elsewhere as the ‘re-nationalisation’ of probation, but the reforms do not represent a return to the status quo ante. Each NPS region will have an ‘Innovation Partner’ from the private or voluntary sector, to which they will be obliged to contract a wide range of services. These include Community Payback (under which offenders do things like clean graffiti and pick up litter), but also accredited programmes like Building Better Relationships, aimed at male perpetrators of domestic violence. ‘The marketised model that was a driving rationale for Transforming Rehabilitation is not to be dispensed with,’ an editorial in September’s Probation Journal argues, ‘but rather reformulated.’

Meanwhile the profession is being hollowed out. In the year to 31 March 2018 an 8.4 per cent increase in the number of frontline staff disguised a 5.3 per cent fall in the number of probation officers, while probation services officers, a lower paid and less highly trained job, increased by 37.9 per cent. Last year the House of Commons Justice Committee recommended that the government develop a ‘probation workforce strategy’ to protect staff retention and morale, and set down expectations for training and maximum workloads. The proposal was rejected.

Learning Together held its first workshops at Grendon in 2014, under the direction of Ruth Armstrong and Amy Ludlow, from Cambridge’s Institute of Criminology. John had been sceptical at first. ‘The lads were always talking about it, “Oh they’re just studying us like lab rats,” but as the weeks went by ... Ruth and Amy, you just have to meet them and see them in action.’ Each week there was a lecture on a topic like sentencing guidelines, or long-term imprisonment. Working in small groups with a facilitator, students and prisoners presented ideas related to the subject. One week, John’s group had to come up with ideas for improving the criminal justice system. John proposed pairing up officers on the beat with ex-offenders. ‘A lot of people don’t like talking to the police, the kids and that. If I’m there, from the estate, they’d maybe trust me a bit more. That way the police can get their information, and I can keep my eye on the police that they’re not bullying the kids. That makes it a bit more legitimate.’ The response from the academics – encouraging, thoughtful, respectful – was gratifying. He had already spent a fair bit of time studying, in fact he was the prison’s Open University orderly, helping other prisoners navigate their way through their studies, but Learning Together meant more to him because it gave him the opportunity to work with others and to be validated with and by them. ‘I’ve always struggled with self-esteem. I tried arguing with it, but I couldn’t hide from the support and the care that was there.’ At the end of the course students from Learning Together gave him a legal dictionary, and after he left Grendon one of the staff members visited him in HMP Preston during his appeal.

All this led John to join other former prisoners at a celebration of the programme’s fifth anniversary at Fishmongers’ Hall on 29 November. Ruth and Amy were there. So were Saskia Jones, a volunteer John knew, and the course co-ordinator Jack Merritt, who had come to his Open University graduation ceremony: the two people killed when Usman Khan launched his senseless knife attack.

Harry Stopes

More details regarding the board game 'Probationary' can be found here.

The Probation Reality 2

Following on from Friday's extensive media coverage of the McCann case, many staff in NPS will be returning to work today with an understandable sense of dread and foreboding. Morale is at an all-time low and it is to be hoped that at the highest level it will be accepted that along with TR and drastic cuts, putting probation under the control of the prison service  as civil servants has been a disaster. 

The profession is crying out for effective leadership with the courage to speak up and call out what we all know to be wrong with the current HMPPS. For probation to be in any way effective it MUST regain its independence!

Not surprisingly, Friday's revelations has caused widespread discussion and comment amongst staff on various public platforms, including Facebook open groups, and I think the following edited exchanges help explain the background and tensions staff are facing on a daily basis:- 

Of four probation staff in the South East and Eastern division who were directly involved in McCann's supervision, one was demoted, according to PA sources. An earlier investigation resulted in one member of staff involved with McCann being dismissed and an agency worker's contract being terminated for "poor performance", although it was not understood to be directly related to the case.

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I assume this is from the SFO report? And we can assume the “demotion” was a manager. And that’s a selection of serious consequences. But if (just) four POs looked at this case & no-one clocked that an IPP case should be recalled, something is seriously off. What about prison staff? Court staff? ANYONE?

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I was just thinking the same thing. Usual practice of scapegoat the Probation service
I mean, clearly there are huge failings here. But the amount & volume is more than the responsibility of just one person or organisation here.

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How does an entire system stay quiet to allow an IPP to be released automatically?
Stinks.

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The entire system is so woefully underfunded, disconnected & looked at with such disdain & scorn by government and public. It’s shocking.

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There’s more here than Probation that needs looking at.

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There is now a policy of alternatives to recall. It's very difficult in the North West to get anyone recalled including IPP.

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 "Joseph McCann was released from prison after an error by the probation service, sources have said". Since when did we start releasing prisoners?

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We didn't recall him on his IPP so when he got a further determinate sentence he was released.

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Except at any point people from all over could’ve called out that lack-of-recall error. Instead of blindly writing out a licence.

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How did the prison miss it, the court missed it and only probation staff take full responsibility? 

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It's amazing to think this was missed by court staff, managing PO, OS in prison. How bad must things have been at that office at the time?

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Hung out to dry again. How come nobody realised he was on licence when he was sentenced to the new offence? And did he have a previous history of sex offences? There are so many unknowns yet again but we are the only professionals ever to be held to account. If we're that important, treat us as such and give us the resources and the wages we need!

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How did the court miss it when Sentencing him?

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In my experience the Court relies on information from the Probation Court Officer - an important role which has changed so much!

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They didn't the judge even mentioned recall in his comments.

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Typical. The PO gets made the scapegoat.

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The article says he wasn't recalled against the IPP but instead given 3 years custody and automatically released.

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Yes. The point is that he wasn’t recalled. That’s the problem.

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Yes, if he was recalled he would have had to be released again by the Parole Board, not automatically released halfway through the new sentence.

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I'm a PO and that was a big mistake to miss that recall. It's automatic that if someone commits another serious offence they are recalled immediately. It certainly is in our office, regardless of the new sentence. Especially when it's an IPP sentence. I hate any of my offenders offending on licence. I take it personally if they commit any offence on licence. I have high standards for the people I supervise. I know they can change and expect it of them. I believe in their change and have a lot time for them to help them but if they don't want to change then they go back to prison. I take my public protection responsibilities seriously as do the majority of my colleagues. We have huge successes all the time but someone changing their lives is not news worthy. We only focus on the few that go wrong and the problem with this job is when it goes wrong it goes wrong big time with huge consequences. But we create change everyday in people.

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I love this and totally agree with the concept of taking it personally. That’s exactly how I feel. This is an excellent post. Focusing on process and the values underpinning a valuable profession. I would have thought that MAPPA would have been involved at release by Parole Board and at the point of offending when on the IPP licence. The court team also have a responsibility. Finally the SPO. Ongoing supervision and reviewing of cases?

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Feels like a big systems error and there should be an enquiry.

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That's how our work should be. We need to care. Really care for our offenders and the communities we serve. The offender will know as soon as they meet you if you care or not. If you don't care then why should they.

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I work as a police offender manager and I’m constantly battling with probation officers to get offenders recalled because they are reoffending and their risk is increasing. The latest one was recalled only after being charged with 5 burglaries. 5 more unnecessary victims of crime after his ‘divert from custody’. It’s a joke!

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Recalling without a new charge isn't that straight forward. NOMS will often overide the decision to recall. Rather than blame OM's in different bits of the service we should try to gain a better understanding of the limitations of each others roles and responsibilities.

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Part of his licence says be of good behaviour among a number of others such as drug testing, driving a stolen car, no insurance, no licence etc. positive drug tests. Oh but his index offence isn’t burglary they said. Yep the car was stolen from a burglary?! No recall, divert from custody. Like I said it’s a joke.

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To be fair, there are often times the PO holding the case WILL want to recall but will be blocked by people higher up the chain.

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I agree but we have monthly meetings and we spell it out to them SPO’s that this particular person is going down hill and will reoffend guaranteed hundred percent. They could recall purely on the fact they haven’t kept appointments. But no, we need a charge sheet so basically they are saying reoffend then recall. Prevention is better than cure surely not?Sorry but it’s broken it’s become a joke.

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Please don't blame the front line Probation staff - blame the system and the upper decision makers. I worked in IOM for a number of years and would have recalled more than I did if allowed but I was prevented from doing so due to policy and governmental directives.

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I certainly understand your frustration. I think after recent events the pendulum is going to swing firmly back into the enforcement sphere and we will likely see recalls increase.

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It's not an SPO that signs off a recall it's an ACO and even with 3 people in Probation agreeing, NOMS can reject it. Which is why l said rather than playing the blame game we should try to get better today of the limitations of our roles. I've recalled a HROSH client for behaviour and had the Police ask me why? This Police against Probation just creates division not unity.

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I don’t blame front line staff generally but I have come across, let’s be honest here, lazy and indifferent officers who are treading water. Other probation officers have pointed this out to SPO’s who have took no action. I’ve witnessed one playing candy crush during a consultation!

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The thing is the prisons are at bursting point and not fit for purpose.

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Again, in the interests of fairness there are also some Police OM’s who don’t quite make the grade, are slow at providing intel, don’t attend shared meetings as promised and so forth - and I say that as someone who is a big supporter of the Police. I agree completely with Xxxxx above. We are all on the same side! We are all facing the same challenges and difficulties and one of the ways to change this is a fundamental shift in the way we work together.

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Every point you raise is valid but just goes to illustrate that this problem is bigger than either of our respective agencies.

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I have never said we are perfect, far from it, but if an offender commits an offence whilst on licence it’s not the police’s fault. We did our job in securing a conviction in the first place for the original offence job done. It’s down to the probation and prison service to protect the public from that offender till end of licence. It really is as simple as that.

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Usually I would guess the police would want every one to be returned to prison for suspected behaviours, but clearly we know our justice system does not allow for suspicion-based convictions. I'm guessing this would also be for return to custody, and that would have it's own criteria to be met?

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It's unprofessional for you to criticise your partner agency in open forum.

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I’ll criticise in open or closed forums. I often do and it’s about time people got from behind their computers, got a grip of offenders who openly laugh at and play the ‘system’ and do what their job description says and protect the public,instead of pandering to faceless bureaucrats.

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It’s rarely the case with IPPs though.

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I’ve seen IPPs get recalled for intentionally being late for their curfew. No change in risk. But all they know is prison & probation were so tight in IPP issues. So for an IPP to *not* be recalled, especially on a similar offence, is what’s so drastically wrong.

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People not being recalled on standard licences is another matter. Especially given the state of prisons. However I can see why a multi burglary offender not being recalled would be worrying/frustrating. Equally as a police officer, you’re not at the point of conviction.

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And no, prevention isn’t better than the cure in this case. We know prison doesn’t work.

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There would be a lot less victims of crime had a number of offenders been recalled to prison to serve their sentence instead of being let out half way through to be supposedly managed in the community. A community full of drugs fellow offenders and broken families just ripe for them to re offend.

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Yes let’s just lock them all away & throw away the key.

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Not at all, create proper prisons with great facilities and learning possibilities I’ve worked with offenders whom the last thing they need is a custodial sentence. However I’ve also worked with a number of offenders who regardless of what you do to them (you could give them an all-inclusive holiday in the Maldives for six months) they will still continue to re offend as their social environment is broken. I’ve worked with these people for over 30 years now.

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So if people don’t have a “proper” social environment we throw away the key? For every offender who chooses to burgle someone’s house or rob an innocent person going about their business or who decides it’s ok to drive a car with no licence insurance and on drugs (all whilst on licence) there are so many people who don’t? And strangely enough they also live in this very same social environment.

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Perhaps you need to also remember it is the perpetrator who holds ultimate responsibility for their actions. Placing blame on professionals trying to do an extremely difficult job, in impossible circumstances, is unhelpful and unfair.

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If it was that simple we wouldn't be having this discussion and when you say 'well the Police have done our bit by securing the conviction' again it creates division and is actually not true. The CPS secure the conviction the Police investigate and provide the evidence. We all are responsible for a different element of crime prevention. When l was an IOM PO l often had Police colleagues complain about the lack of recalls. One day my colleague and l worked with our Police colleagues to support them understand the process and evidence threshold we have to meet to get a recall agreed when we recall for behaviour. No surprise they stopped complaining once they had a better understanding of the complexity of a recall. The other issue that the Police often aren't aware of is if we recall purely on behaviour or they are on Police Bail awaiting charge, that client can lodge a case in High Court for a Judicial Review to challenge us, the individual PO. Not CRC not NPS us the individual. I've had that threat twice and it's not a walk in the park to have your professionalism pulled apart in court because you've made a decision based on information from a partner agency who incidentally often isn't called to give evidence during the Judicial Review or if they are they hide behind their agency. Greater understanding is needed all around.

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I’m sorry but SPO’s and probation officers who have an offenders risk of re offending clearly pointed out to them evidence based who fail to act should be held to account especially by victims of crime who sadly get overlooked.

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Why should it be PO and SPO's when I've told you it's an ACO who has to authorise a recall not a PO and SPO and again this comment shows how little you actually know about Probation Practice. Thanks to the Parole Board going against Probation and Prison recommendations not to release the Black Cab rapist, in the event of an SFO an ACO will share the findings of an SFO Review with the victim. And victims are not overlooked. There's a whole section on the Recall Report that focuses just on the victims. Maybe you should offer to actually work alongside a PO who is considering a recall, like the Police Officers l worked with did to increase your understanding.

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I've often had Police wanting recall on information that isn't going to lead to a charge, without considering the implications of this legally. If there is enough evidence to recall because they have done it then there should be enough evidence to charge for the new offence.

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I’m sorry but a licence says you should be of good behaviour and if you're not then you are in breach of it and should receive a warning then another then one more then recall. What part of testing positive for class A drugs driving around in a stolen car without a licence no insurance constitutes good behaviour? It clearly doesn’t. You wouldn’t, I wouldn’t do it and neither would a most people I know. So how the hell can someone half way through a prison term get away with it and not be recalled? It’s madness.

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There is dodgy practices and people on all professions. Don't judge us all by some bad practice. If you're on licence and you offend then there should be a sanction of some some sort. If your offence is a risk to public, then there should be a recall. If this doesn't happen then I'd speak to the SPO, or Head of Service or Divisional Director. But we may be taking action such as increase in frequency of reporting, warnings, direction to agencies etc. A recall is important but often only a temporary measure. We look at the longer term change that is needed and a 14 or 28 day recall may not have any impact and make them more angry have more hatred to agencies and ultimately more risky. Probation Officers walk a very delicate line, we have to get alongside people to help them change but also manage their risks and protect the public. All these issues are very complex and we all do very difficult jobs so we must work together rather than point the finger. I have a story where I can point the finger. Someone committed a further offence, no one told me, not the police, not the court. Mistakes happen on all sides.

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Thankfully for me it was an IOM Police Officer who got her Police colleagues to understand what was happening to me and no surprise the 17 open robbery investigations were dropped one by one and he was released from the recall. I made it clear if l had been called I'd have told the High Court who exactly in the CID had provided the information about the alleged Robberies and let that person be scrutinised in open Court.

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I have attended many oral hearings and I think the Parole Board are rigorous in their assessment of risk of harm to the public. There needs to be a body independent of probation. We all have different agendas and beliefs. The police want to lock them up and keep them locked up, probation's job is to manage that risk and also to rehabilitate, we believe people can change. But I also know we need an independent arbiter for the public to assess risk that they pose. I think the Parole Board actually do a great job and play a vital role. We need checks and balances in the criminal justice system.

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I was involved in a case where the offender constantly breached his licence but his PSO refused to recall to prison. Two weeks later the offender bludgeoned someone to death.

I'm sorry to hear this. We do have to justify our recall. There is also government guidance pressure they we have considered alternatives to recall, ie warnings, increase in reporting, direction to agencies such as drug /alcohol. So although we may not recall we have to consider other options. It may look like we are not doing anything but we are. Obviously your example was very sad and it must feel frustrating for you. But I know we take public protection very seriously. I take guidance from the police very seriously in my decisions. I'm shocked that others may not.

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I am very aware of the guidelines. The offender constantly breached his licence and was a dangerous person. When I constantly reported it I got told I was stupid and couldn't assess risk.

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That was shit. I remember how we were told not to recall.

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That's the thing though, we could of recalled him.

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That's dangerous practice. We should all be respecting each other and listening to concerns from the police. I'd raise it with their SPO and if not satisfied the Head of Service and if still not satisfied the divisional director. There is no excuse for that.

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Just read the article and noticed it was a CRC that was managing the case you mentioned. I work for the NPS. The public owned part of the service. The Tories privatised 70% of the service when they created the CRC companies to fit their ideology. Each company is different. I worked for a CRC for four years and they were quite arrogant when they came in not humbly wanting to learn from us but quite brash and looking at Probation and all we did previously as wrong. They cut staff and the service to the bone. They created tiers of people that you know would not know what they did. All monitoring what you did and analysing data. They de-professionalised the service completely. They believed that we were all lazy and didn't understand what we did. It was like working for Top Shop, there was us on the shop floor and those at head office, a huge divide. They brought in dangerous structural changes that failed and within a year it was all changed back to the public sector model following a disastrous inspection. Many SFOs, more created victims from a failed policy. I left because if felt like I was working for a sales company rather than a public service. Complete focus on targets. I never heard managing risk mentioned. It was all about the targets they needed to meet not to lose money. When I started back in the NPS it was breath of fresh air focusing on risk and managing it.

No Prison Reform Without Probation Reform

As every day goes by, more and more attention turns to the effects of Grayling's disastrous TR and prison policies and we know the government cannot ignore things for much longer. There continues to be much discussion as to how the prison population can be reduced, but nothing will work unless the damage inflicted upon the probation service is rectified. So, while we continue to await an 'announcement', here is the Criminal Justice Alliance with some suggestions for Rory Stewart:- 

HOW TO START REDUCING THE PRISON POPULATION

Dear Rory, 

Thank you so much for coming to speak to CJA members in May and articulating your determination to address some of the prison service’s most pressing operational challenges. The present level of the prison population in England and Wales is clearly one of the most significant of those challenges. 

We are encouraged by the recent small reduction in the prison population. Increasing the Home Detention Curfew caseload has been an effective way to start to reduce some of the pressure on our heavily overcrowded prison system and providing a managed transition for prisoners into the community. But more must be done. 

You said at our recent Members Meeting that you’d be happy to receive suggestions on how the prison population might be reduced, without compromising public safety. Possibilities for this in eight areas are enclosed. None of these proposals is revolutionary. 

They’re almost all both pragmatic and incremental. Many could be effected without legislation. Their implications for a reduction in the prison population of some 12,000 during the lifetime of this parliament are based on conservative assumptions. 

Any such reduction in the prison population also offers the possibility - based on similarly cautious estimates – of saving £900m of public money. The attached schedule details these savings. 

We hope these suggestions – based on knowledge shared by many of the CJA’s member organisations – will be helpful. Thank you for asking us to share them with you. We look forward to continue working with you to support efforts in reducing the prison population. 

Yours sincerely, 

Nina Champion Director, CJA

1. IPP Sentences 

The current IPP (Sentences of Imprisonment for Public Protection) population stands at nearly 2,900. Almost 90 per cent of these prisoners have served beyond the tariff deemed necessary as appropriate punishment for their offences. Without further intervention, the Parole Board acknowledges this figure may reduce to 1,500 by 2020. But this number remains unacceptably high, and the Government could be more ambitious in its approach, ensuring the IPP prison population reduces to less than 500 prisoners by 2022. (Net saving allowing for costs of external supervision £202.2m.) 

In our view, the Ministry of Justice should consider legislative intervention to convert posttariff IPP sentences to determinate sentences – a simple solution providing firm release dates. As CJA member Prison Reform Trust highlights, people serving IPP sentences have one of the highest rates of self-harm in the prison system. Providing a clear release date may help reduce this rate. 

As a minimum starting point, the 459 IPP prisoners serving tariffs of less than two years could have their sentences converted, expanding to the 1,176 IPP prisoners with tariffs of less than four years, then scaled up appropriately. A ‘sunset’ provision could also provide a release date for some or all post-tariff IPP prisoners by a particular year or by a number of years post-tariff. 

In the meantime, the availability of courses conditional for the release of IPP prisoners must continue to be prioritised. 

Once IPP prisoners are released, much more needs to be done to ensure that they do not return to prison. There is growing concern about the number of people serving IPP sentences who are recalled following release – currently over 800 prisoners. Nearly two thirds of those currently recalled are re-released following review by the Parole Board.This may necessitate a review by the Ministry of Justice of the licence conditions in the Prison Instructions. Further, people serving IPP sentences are often deeply institutionalised and require intensive independent advocacy support to facilitate their resettlement in the community. Many CJA members provide this type of support, but further investment is needed.

2. Recall 

On any given day in 1995, there were fewer than 200 people in prisons for recalls. In March 2018 there were over 6,000. 6 Over half – 58 per cent – of these had not been charged with a further offence, and were instead recalled for other licence breaches, such as failure to keep an appointment on time, or drugs and alcohol issues. And many people ‘recalled’ to prison did not receive a custodial sentence in the first instance.

There is little doubt that the extension of post-sentence supervision to those sentenced to less than 12 months has contributed to the rise in the recall population. Further, new Sentencing Council guidelines for sentencing breaches (effective from1 October 2018) will have custody as a starting point for even minor breaches. It is recognised that this ‘could have an impact on the prisons, with more offenders being sent to custody than at present’.

Recalls are costly interventions that interrupt the effective reintegration of former prisoners. The Ministry might review both the standard and extra licence conditions that Offender Managers can impose, as well as the mechanism for recalling a person following breach, emphasising that recall should be preserved for those presenting a serious risk to the public or genuinely failing to progress towards reintegration. 

But the best way to prevent an unnecessary recall is to ensure there is no breach in the first place, by providing effective rehabilitative support. Unfortunately, as highlighted in the Justice Committee’s recent review, probation services are critically underperforming and the effectiveness of Transforming Rehabilitation is in serious doubt. Securing accommodation is particularly problematic, especially for young people leaving custody, and recalls cause critical disruption to an already challenging process. 

Recognising that there will be some situations where someone may need to be recalled where there has been no further offence, keeping even 3,000 people out of prison and in the community where productive rehabilitation can take place could save £231.8m net over four years. 

3. Remand 

Those on remand – 9,200 people – now represent over ten per cent of the prison population. One in seven – nearly 1,400 – go on to receive non-custodial sentences. Ensuring this cohort is not needlessly kept in prison could save £39.9m annually.

The numbers are particularly stark for those remanded in custody and tried in the Magistrates’ Courts – of the 22,300 defendants annually, a quarter are acquitted and a third receive a non-custodial sentence. 

The Legal Aid Sentencing and Punishment of Offenders Act 2012 properly introduced a test of ‘no real prospect’ where remand should not be sought for an un-convicted defendant where there is no real prospect of a custodial sentence. CJA Member Transform Justice has noted that the law is largely satisfactory and compliant with international standards. However, in practice its implementation results in many defendants being remanded when other alternatives are or should be available. The Crown Prosecution Service, defence advocates and judges should ensure this test is applied much more rigorously. Greater use of electronic monitoring might also be considered as an alternative to remand.

4. ‘Sentence Creep’ 

Average sentence length for prisoners held for indictable offences is 30 per cent higher than ten years ago, up from 15.2 months to 20. There is no firm evidence that this ‘sentence creep’ has had any deterrent effect. 

If average sentence lengths had remained the same as in 2007 just for drug offences, fraud and theft, there would be approximately 2,000 fewer people in prison, saving £57m annually. (Research by data analysts Justice Episteme suggests that had sentencing policy for serious offences remained the same since 2003, there would be 16,000 fewer people in prison.) 

Change in this area will need to be incremental and the effects are unlikely to be seen immediately (unless changes are applied retrospectively to those already serving inflated sentences, such as an early release to electronic monitoring for low-risk prisoners). But without changes to sentencing practices, there seems little prospect of the vast bulk of the prison population reducing. 

More scrutiny could usefully be applied to the creation of sentencing guidelines by the Sentencing Council in the context of stretched prison resources and the effectiveness of custodial sentences. For instance, sentencers might be encouraged to sentence more creatively, restricting the requirements to use the upper limits of guidelines and allowing them to sentence below the lower limit. 

In 2017, the Sentencing Council admitted that increased severity of sentences for nondomestic and aggravated burglary offences ‘may be attributable’ to the introduction of the guideline for these offences. The Council has committed to reviewing this guideline, but as a priority, it should also commit to greater investment in assessing the impact of all guidelines, particularly those for high-volume crimes. 

5. Short Sentences 

At March 2018, 5,340 prisoners in England and Wales were serving sentences of less than 12 months. Short sentences are demonstrably less effective than community sentences at reducing recidivism (and more costly). Justice Secretary David Gauke has recently recognised this, stating that short sentences should be a last resort. Short-Sighted, a campaign by CJA member Revolving Doors, highlights that half of all people sentenced to custody are serving sentences of less than 6 months. 

Scotland introduced a presumption against custodial sentences of three months or less in 2010, and last September announced plans to extend this presumption to sentences of less than 12 months. Other countries with similar provisions include Belgium and Germany.

There may be certain instances for which this presumption against a custodial sentence would not be deemed appropriate given the interests of, and risks to, the victim and wider community. But if reductions occurred at a similar rate as in Scotland, there would be 2,000 fewer people in prison. Introducing a presumption against short sentences of less than 12 months could save £57m annually. 

6. Mental Health 

There is currently insufficient data to accurately measure the number of people in prison suffering from poor mental health. But as recently as 2016, the Centre for Mental Health estimated that 90 per cent of the prison population have mental health problems, personality disorders, or substance misuse problems. 

The 2009 Bradley Review found an estimated 2,000 prison places per year could properly be saved if individuals who receive short custodial sentences and who may be experiencing mental health problems were instead given a community sentence. This would save £57m. For many people with mental health issues, a community order with a Mental Health Treatment Requirement (MHTR) would be transformative and the prison estate, in any case, is all too often entirely inadequately equipped either to treat them or address their offending behaviour. 

In order to effect any such change, sentencing guidelines on MHTR would need to be strengthened. CJA member JUSTICE has also called for a Sentencing Guideline on mental health and vulnerability to be created. Despite revised guidance issued by the Ministry of Justice four years ago, there has not yet been a significant increase in the use of MHTRs, so there is still significant scope for further uptake. As identified by the Offender Health Research Network, the purpose, process and eligibility for MHTRs should be described by the Ministry of Justice and Department of Health in collaboration.

Magistrates and judges might also require additional training to raise awareness of the use of MHTRs attached to community sentences, though emphasis should be on their availability and inclusion in pre-sentence reports. 

7. Women 

At the end of March 2018, 1,250 women were in prison for non-violent offences - either theft, fraud or drug offences.23 Serious concerns have properly been raised about the necessity of custodial sentences for such women, when the vast majority could serve a sentence in the community without posing a threat to public safety. It is alarming that any woman is imprisoned in 2018 for TV licence non-payment. 

Of the 852 women sentenced to prison for drug offences since 2016, 240 were sentenced to three years or more.24 This small group aside, there remain 1,000 women imprisoned for non-violent offences whose sentence could better be served in the community, saving £28.5m.

CJA member Women in Prison’s 2020 campaign – to halve the women’s prison population to 2,020 (or fewer) by 2020 – highlights how alternatives to custody such as Women’s Centres and community support services result in lower reoffending rates than prison. Further, sending a woman to prison for a short period of time can have a significant impact not only on the woman herself, but also on any dependent children, which in turn can lead to additional costs needing to be funded by the state, such as foster care. 

In order to effect this change, sentencing guidelines would need to be amended and steps taken to address funding of women’s services, particularly Women’s Centres. We welcome the pledge in the Female Offender Strategy to commit £5 million to community provision for women to address offending behaviour.

However, there are serious concerns that this is an insufficient amount to achieve the strategy’s aims. Moreover, it is a pittance in comparison to the £50 million originally earmarked for the now scrapped plan to build five community prisons. 

As of March 2018, there were 500 women serving sentences of less than 12 months.26 These women would almost certainly be better rehabilitated in the community with access to appropriate treatment and without disrupting existing housing or childcare arrangements. This would save £14.3m. 

8. BAME people 

If the demographic of the prison population reflected that of England and Wales, there would – as noted recently in David Lammy’s review of black, Asian and minority ethnic (BAME) representation in the Criminal Justice System – be 9,000 fewer BAME people imprisoned, the equivalent of 12 average-sized prisons. If just ten per cent of these were diverted, this would save 900 prison places with (net) savings of £25.7m. 

As highlighted in the Review, one of the reasons for this disproportionality may be the association between ethnic group and likelihood of receiving a custodial sentence. Black people are 53 per cent more likely than white people to be sent to prison for an indictable offence at the Crown Court.

Lammy also highlighted the need for increased trust in the criminal justice system amongst BAME defendants, who were found to be more likely to opt for trial in Crown Court due to their higher confidence in the fairness of juries than in the fairness of the Magistrates’ Court. It recommended sensibly that all sentencing remarks in the Crown Court be published, to make justice more transparent and comprehensible, thereby building trust. Similarly, CJA member Centre for Justice Innovation advised that to improve the criminal court experience for BAME defendants, judges, magistrates and court staff should be trained in better courtroom engagement. 

Other recommendations in the Lammy Review include the CPS considering its approach to both gang prosecutions and to how Modern Slavery legislation could be used to prevent the exploitation of vulnerable young people and for identifying information to be redacted from case information passed to the CPS by the police to allow for ‘race-blind’ decisions. The 35 recommendations of the Review, if implemented, could significantly reduce the numbers of BAME people in prison.