Will Reviews Be Fair?

As we've seen, if Labour get into power, they suggest reviews will be conducted into the probation service and sentencing, but who will carry these out? Would we trust the civil service? I see that Rob Allen has similar concerns and makes a couple of suggestions:-

Critical Reviews

If Labour forms the next government what will happen to sentencing and the prison population? Much will depend on the outcomes of two reviews which its manifesto says it will carry out. One is a review of sentencing “to ensure it is brought up to date.” The other is a strategic review of probation governance, “including considering the benefits of devolved models.” The terms of reference for each of these and who does them and how quickly, could determine the penal direction of Starmer’s premiership.

On sentencing, Labour think that when criminals are found guilty, “the sentences they receive often do not make sense either to victims or the wider public. This is particularly worrying for offences against women and girls”. They aren’t clear whether their review will focus only on such offences or take a broader look at sentencing levels across the board.

Either way, given that “tough new penalties for offenders” are seen as one of the measures Labour hyperbolically deem necessary to “take back our streets”, there is a risk that the review will simply lead to more people going to prison for longer through increased maximum sentence lengths.

What’s surely needed is a genuine and dispassionate assessment of sentences and their enforcement and of what needs to be done to ensure that they make sense to victims and the public apart from making them harsher.

For one thing prisons can’t cope with more sentence inflation and Labour’s plans to increase capacity look unconvincing. More fundamentally, the prison population rate in England and Wales (and Scotland) is already very high. The latest Council of Europe statistics find they are the only jurisdictions in Western Europe with a rate more than 25% higher than the median value in CoE countries. Let’s hope the review takes account of the financial, social and ethical costs of imprisonment as well as superficial views of what the public say they want.

Why not ask the Sentencing Council to do it rather than civil servants? It would provide an element of independence which might prevent the review coming to an entirely foregone conclusion. The last sentencing review conducted by civil servants before the 2019 election was a travesty, involving no research or evidence paper, no meaningful consultation and no outcome published. When I tried to get a copy a judge ruled that “publication would present a significant risk of undermining the confidential space needed by the MOJ to discuss and formulate policy in this controversial area”. The decisions taken after that review - to increase the proportion of sentences served in prison for sexual and violent offenders- led in part to the prospect of an unmanageable prison population. Let’s hope we don’t go further down that dismal road.

As for the strategic review of probation governance, the mood music is considerably better. The former Chief Inspector of Probation Justin Russell (a one-time Labour staffer) wrote last year that “the time has come for an independent review of whether probation should move back to a more local form of governance and control, building on the highly successful lessons of youth justice services.”

On this I’d like to see a broader look at the case for a more integrated local response to supervision in the community. Why not Adult Offending Teams as well as YOT’s? A more genuine effort to meet the needs of people on probation would almost certainly lead to less re-offending and recall- although the review could usefully look again at the desirability of imposing breachable supervision following all short sentences.

Consideration of the benefits of devolution could even include building in more local responsibility for the funding of prisons through so-called Justice Reinvestment.

If Russell is interested and available, could he be the person to lead the review?

Rob Allen

Fool Me Once, Shame On You:

Fool Me Twice, Shame On Me

Those with long memories will recall the electronic tagging scandals of the past when the dead and a false leg were tagged as part of a massive and systematic fraud committed over many years by both G4S and Serco. Well, the hapless HMPPS have decided both companies are now rehabilitated and each has been rewarded with brand new contracts, as reported here on the Civil Service World website:- 

HMPPS says ‘lessons have been learned’ as Serco and G4S bag electronic monitoring contracts

Deals worth up to £450m come almost a decade after firms admitted overcharging government to the tune of £170m. The boss of HM Prison and Probation Service has told MPs that lessons from past experience with electronic tagging contracts have been learned as Serco and G4S have been awarded new deals worth up to £450m.

The firms wrongly billed the Ministry of Justice for tens of millions of pounds under electronic-monitoring contracts first awarded in 2005. Sometimes multiple charges were made in relation to the same offender, in other cases charges were made for offenders who were dead.

G4S repaid the department more than £100m after details of the overcharging scandal emerged in 2013; Serco repaid £70.5m. Both firms removed themselves from the procurement process for the “next generation” of electronic monitoring devices. G4S subsequently returned to supplying electronic tags to government.

Investigations by the Serious Fraud Office resulted in Serco being fined £19.2m plus £3.7m costs and G4S being fined £38.5m plus £5.9m costs over the scandal.

Earlier this month Serco landed a £200m MoJ contract to deliver electronic-monitoring services in England and Wales for six years to May 2030. The deal will be worth an additional £75m if two one-year extension options are exercised. G4S was granted a £175m contract to deliver monitoring technology, which includes devices for location monitoring and alcohol monitoring.

In a letter to members of parliament’s Public Accounts Committee, HMPPS chief executive Amy Rees said the service’s approach to the new contract arrangements had “been informed by previous experience and lessons learned, as well as government best practice”. She said specific supplier “accountabilities, roles and responsibilities” had been set out in the respective contracts agreed with Serco and G4S.

“During implementation of the new service, both suppliers will be required to report on progress and risks through an implementation board,” she said. “This board will oversee delivery of the integrated implementation plan and ensure risks are appropriately managed through the various phases of transition. The implementation board will report into a service delivery board, chaired by the head of EM operations, where ultimate responsibility for holding suppliers to account and dealing with any issues will take place. This will ensure there is senior-level oversight of progress and risks.”

Rees’ letter was prompted by a recommendation in PAC’s Transforming electronic monitoring services report last year, which called for HMPPS to set out how it would handle risks in the programme once suppliers had been appointed. The letter was dated 27 October but was only published yesterday. The Serco and G4S contracts were announced on 8 November.

Rees said that as field and monitoring services supplier, Serco would act as service integrator and be responsible for the running and management of the end-to-end service. She said that in addition to their individual contractual obligations, Serco and G4S had also signed a separate collaboration agreement setting out clear expectations on behaviours and ways of working.

“Both suppliers will appoint a suitably senior lead officer who will be specifically accountable for ensuring their respective teams adhere to the requirements set out in the collaboration agreement,” she said. “These leads will attend the service delivery board.”

Published in October last year, PAC’s Transforming electronic monitoring services report detailed a litany of concerns about HMPPS and MoJ’s handling of tagging.

Committee chair Dame Meg Hillier said the current system was “outdated” and at “constant risk of failure”, while the report flagged £98.2m wasted on the scrapped Gemini case-management system, which MPs described as “high-risk and over-ambitious”. MPs also criticised the MoJ and HMPPS for failing to rigorously evaluate whether tagging reduces reoffending before pushing ahead with a £1.2bn programme to expand it to another 10,000 people. As of March last year around 15,300 offenders were tagged, according to the report.

--oo00oo--

Of course tagging is seen by politicians as a 'silver bullet' and cheaper way of punishment for much criminal behaviour, alongside community service as part of so-called 'tough' community sentences as alternatives to imprisonment. However, it does nothing to address rehabilitation, but that's just indicative of politicians never understanding what's involved in that. 

Anyway, there's a chronic shortage of prison capacity and I notice the Sentencing Council have launched a consultation on the whole subject and this must surely be the opportunity for some serious submissions on the central role a reformed probation service could play from PSR through to proper, meaningful supervision. Reported here on the BBC news website:-

Courts to issue fewer short jail terms under plans

Courts could soon be handing out more rehabilitative community sentences, rather than sending people to jail for short terms, under radical new plans. The Sentencing Council for England and Wales says judges and magistrates should think more about sentences that are proven to reform offenders. The plans tell courts to think twice about jailing women because of the impact on children. The plans, years in development, come amid a prison overcrowding crisis.

The council is the official body that advises all criminal judges and magistrates on how they should sentence criminals fairly and consistently, following rules set out by Parliament. The new consultation covers the principle of choosing community sentences, such as unpaid work or drug treatment programmes, or prison.

For almost 30 years the trend in sentencing has meant that more criminals have been sent to jail and for longer periods. However, academic studies show that community sentences do more good in rehabilitating low-level offenders than prison. In the major consultation, the council argues that if judges and magistrates conclude that an offender potentially deserves to be jailed, they must first pause and consider if a community order would actually be more effective at achieving rehabilitation, one of the key purposes of sentencing.

"Increasing academic research has covered the importance of rehabilitation in reducing reoffending," says the council. The Council believes it is important to reflect the findings."

The document suggests that judges needs to take extra care in assessing the lives of offenders from specific backgrounds including young adults, women, people with dependants, people who are transgender, ethnic minorities or people with addictions, learning disabilities or mental disorders. Crucially, before judges jail a woman, the council says they must consider the harm that could be caused to a pregnant woman's unborn child.

"A custodial sentence may become disproportionate to achieving the purposes of sentencing where there would be an impact on dependants, including on unborn children where the offender is pregnant," says the council. "Courts should avoid the possibility of an offender giving birth in prison unless the imposition of a custodial sentence is unavoidable."

That highly significant guidance comes after the death in 2019 of a baby whose mother went into labour unaided in a cell. The proposals also tell judges for the first time to consider whether older women who commit crimes may be experiencing changes in their mental health caused by the menopause.

Sentencing Council chairman, Lord Justice Davis, said the existing guidelines were among the most important in use. "The revised guideline updates and extends the current guidance," he said. "It reflects new information and research in relation to young adult and female offenders and findings from research on the effectiveness of sentencing."

Tom Franklin, head of the Magistrates Association, said it welcomed the "robust emphasis on alternatives to custody. Magistrates want effective community sentences and more information about their impact on the people who are given them," he said. The consultation runs until 21 February next year on the Sentencing Council's website.

Questions Requiring Answers

The news on Saturday that the MoJ have finally bowed to common sense and united argument regarding urgent action in dealing with the threat from coronavirus within the prison estate raises more questions than answers. As always, Rob Allen was quick off the mark with this blog post:- 

Scrutiny of Justice in a Time of Crisis

Good news that the government plans to reduce pressure on prisons by releasing 4,000 low risk prisoners up to two months early. Credit’s due to the excellent work of the Howard League and Prison Reform Trust among others in pressing the Ministry of Justice to do the right thing. And on the government side, one has to admire the tactic of wheeling out Michael ‘Prison Works’ Howard to provide political cover for an administration that pre-Covid 19 made so much of the need for prisoners to serve longer spells inside before release.

But is today’s announcement enough? The uncrowded capacity of the system was 75,380 at the end of February and last Friday the population was 82,589. So even if numbers fall by 4,000, many prisons may still struggle to avoid enforced cell sharing.

There are other important questions to be clarified. Do all the released prisoners really need to wear electronic tags? Is there capacity to achieve that? What are the strict conditions prisoners will have to adhere to? What will be the process for assessing eligibility? And most important when will it start?

The government’s press release says that the releases will be phased over time but can start from next week. It also says that the “Statutory Instruments to allow these releases to take place will be laid on Monday.”

But Parliament is in recess so it’s not clear to me at any rate what procedure will be used to sign them into law. Surely some scrutiny of the government’s proposals is required before it’s done.

As it happens, on Tuesday the Committee will hear from Justice Secretary Robert Buckland about COVID19 and the justice system but “due to restrictions on Parliamentary capacity, partly caused by the virus, the meeting will be held online and in private. A summary note will be published shortly after.”

This doesn’t seem good enough. On the same day the Transport Committee will be questioning Secretary of State for Transport on the impact of Coronavirus on UK transport. The session will take place virtually and will be broadcast live. There seems no good reason why the Justice Committee meeting should not be scheduled at a time when it can be broadcast too. There is considerable public interest not only in the release but the search for publicly owned sites which can be used to house temporary prison accommodation.

It may seem churlish to complain about the lack of public involvement when politicians, officials and public servants in all departments are facing such extraordinary pressures. But as Penelope Gibbs has shown in respect of courts, without scrutiny, things can go wrong despite the best of intentions – and sometimes even because of them. Allowing independent access to justice institutions should remain an important priority.

Chief Prison Inspector Peter Clarke was probably right to suspend his team’s inspection programme but promised to “seek alternative ways of fulfilling our obligation to monitor, understand and report on the treatment and conditions in prisons and places of detention”. I’d like to see a set of expectations drawn up on how prisons should be dealing with the crisis and some kind of independent monitoring of how they are doing particularly in respect of medical care. For example, the Prison Rules require a medical practitioner “to report to the governor on the case of any prisoner whose health is likely to be injuriously affected by continued imprisonment or any conditions of imprisonment. The governor shall send the report to the Secretary of State without delay, together with his own recommendations”. How is this being interpreted?

Some input is needed too from the Sentencing Council to ensure a more sparing use of prison is made by judges and magistrates during the crisis. The experience of imprisonment is undoubtedly harsher at the moment with no work or education and more time in cell. Should this not be reflected by courts reducing sentence lengths and wherever possible suspending prison sentences? More radically still, the MoJ should enable custodial sentences to be deferred where a defendant has been on bail. The advantage of releasing low risk prisoners from the back door of prison will be eroded if low risk offenders continue to enter through the front door of sentencing.

Specifically, the Council should say something about the sentencing of offences related to the Corona Virus Act 2020 or to the emergency more generally. Justice Committee Chair Bob Neill said last week that he thought Justice Secretary Robert Buckland would want the courts to deal with these “swiftly and condignly”. But that’s less a matter for Neill and the Justice Secretary than it is for the Council who should urgently give it some more measured consideration.

Rob Allen

Short Sight and Sentences

The ramifications of Chris Grayling's break-up of the probation service continue unabated and I notice that Penelope Gibbs of Transform Justice has weighed-in on the subject of short prison sentences:-  

Everyone admits short prison sentences are ineffective, so why do the courts still use them?

Hallelujah! A government minister is openly saying that short prison sentences are a waste of time. Or at least tweeting "1870 Declaration of the National Prison Association of the United States: XX. “It is the judgment of this congress, that repeated short sentences for minor criminals are worse than useless; that, in fact, they rather stimulate than repress transgression.” Minister Rory Stewart also said in the House of Commons that "we have conclusive evidence that giving somebody a community sentence rather than a short custodial sentence reduces reoffending over a one-year period".

Given rampant sentence inflation and a long pipeline of legislation for new offences and/or more punitive sentences for existing offences, it is a huge relief to hear a minister express a clear desire not just that the prison population fall but to do something about reducing it. Other ministers have referred to a fall in the prison population as a "nice to have", over which the government has no control, because judges make decisions on a case by case basis.

Rory Stewart, Minister for Prisons and Probation, seems to understand that the government has very powerful levers by which it can reduce the prison population, if it wants to use them. Mr Stewart admitted that England and Wales has "a lot of learn from Scotland". Hallelujah again. The SNP administration in Scotland has brought in a presumption against prison sentences under three months, and is proposing to increase that to sentences under twelve months. The presumption against sentences under three months has not made a big difference to the Scottish prison population, but the messaging and direction of travel matter, and the under twelve month presumption will be a step change.

The Westminster government is faced with several challenges in trying to reduce or eliminate the use of short prison sentences:

1. Unlike the Scots, we privatised most of our probation services and the delivery of community sentences is pretty ropey. This doesn't mean that they are not more effective than short prison sentences in reducing offending - they still are.
2. Magistrates and judges have a long standing distrust of community sentences, which has led to a decline in their use, a decline which started way before Transforming Rehabilitation (the programme to part-privatise probation).
3. Our press may campaign against any move to reduce short prison sentences, particularly if the reform affects someone convicted of, say, domestic abuse or of assaulting a police officer .
4. The legislative timetable is full of Brexit ping-pong so there is no time to get a new presumption/ban on short sentences through parliament.

There is no easy answer to these challenges. But here are some ideas on how to at least prepare the ground for abolishing short prison sentences:

1. Give judges and magistrates better training. All would benefit from a basic crash course in criminology - on the societal and individual drivers to crime, what works to reduce crime (inc desistance theory), and the relative effectiveness of different sentences.
2. I am not a big fan of getting judges to visit prisons, since they never see the real prison, warts and all. Instead I would mandate all judges to visit community sentences in action and talk to those involved. The pioneering programme "Rethinking Crime and Punishment" ran a successful pilot programme to get judges to truly understand community sentences. This was funded by a charity - the Esmee Fairbairn Foundation - but, when it ended, the government would not pick up the tab to continue or expand it.
3. Don't try to ban the suspended sentence order. This week the Chair of the Sentencing Council wrote that the SSO should never be recommended in a pre-sentence report, since it was not a "real" sentence and appeared to be being used instead of a community sentence. Our sentencing framework is not ideal and the SSO is a fudge, but it has been preventing many people from being sent to prison for a short time. And those who are sentenced to an SSO with conditions reoffend less than those sentenced to community sentences. So it seems to be throwing the baby out with the bathwater both to increase penalties for breach of SSO, and to artificially reduce its use.
4. If ministers don't think they can get sentencing legislation through any time soon, why not task the Sentencing Council with reducing the use of short prison sentences through adapting their guidelines. A new report commissioned by the Council points out that both the official reports on the impact of their guidelines point to an inflationary effect. Sir Anthony Bottoms, the author, suggests sensibly there should be a greater emphasis on personal mitigation in the guidelines, and a requirement that courts ask themselves "is custody unavoidable?"
5. Messaging is critical. The newspapers may oppose any reduction in short prison sentences, but are unlikely to do so if they understood that short prison sentences lead to more crime. And ministers should not be tempted to say that community sentences are tough, or should be tougher (as they and the opposition frequently do). There is no evidence that tougher or more punitive community sentences work better, and some evidence that the more requirements piled on a community sentence, the more likely it is to be breached and thus fail.
6. The government may also want to put some focus on particular areas. Postcode sentencing is a little studied but real phenomenon - whereby some courts/areas/judges seem to be much more liable to use prison sentences than others. Russell Webster the other day found a table in the Ministry of Justice's responses to FOI requests which revealed: "The proportion of defendants sentenced to immediate custody in Magistrates’ Courts ranged from 0% (in 4 courts) to 14% in South Worcestershire and 33% in Harrogate and Skipton (where only 6 defendants were sentenced all year.)" It would be worth analysing which areas are most prone to use short-term custody and focus scarce training resources (and ministerial visits) on those areas.

Revolving Doors has launched a #shortsighted campaign to reduce short prison sentences. Do pledge your support. And go to see your MP to persuade them of the campaign's merits.

Penelope Gibbs

Too Many Suspended Sentences 2

I notice Rob Allen feels the tide might be turning as regards short prison sentences in England and Wales:-

   
More Council of Despair?

All’s not well at the Sentencing Council. Chairman Lord Justice Treacy has had to remind judges and magistrates to use suspended prison sentences only in the most serious cases which would otherwise result in custody – and not simply as a way of giving lower level community penalties more teeth.

Treacy - and no doubt the Ministry of Justice - fear that if courts continue to ignore last year’s guideline on the imposition of custody but do pay heed to a forthcoming one on breach, the result will be “a high volume of activated suspended sentences”. That means more pressure on the beleaguered prison system which has reported record levels of violence and self-harm in 2017.

More than one in ten suspended sentences are terminated early for a failure to comply with requirements and 18% for a further offence. While it’s not known how many of these cases currently go to jail, the new guideline is expected to urge activation of the custodial sentence unless it would be unjust in all the circumstances. The draft of the breach guideline tells courts to remember “that the court imposing the original sentence determined that a custodial sentence was appropriate in the original case”. The problem is that in many cases they haven’t and it wasn’t.

The Council and Probation service have cooked up a plan to stop suspended sentences being recommended in Pre-Sentence Reports (PSRs).  They’re proposed in about a third of PSRs and courts accept two thirds of the proposals. What will happen now? While the hope is that most suspended sentences will be replaced by community orders, there’s a risk that some additional custody may be imposed or even proposed.

Such unintended consequences would be nothing new for the Council. An independent review of its work by eminent criminologist Sir Anthony Bottoms has confirmed that two major guidelines - on assaults and burglary - have led to unexpected increases in the severity of sentencing, "which is bound to create anxiety among civil liberties groups”. The review is also critical of the Council’s failure, when drafting guidelines, to consider the relative cost and effectiveness of prison and other sentences in reducing re-offending.

The review makes largely technical recommendations about how the Council should both undertake and communicate its work in the future. There are good ideas here - a greater emphasis on personal mitigation in the guidelines, and a requirement that courts ask themselves "is custody unavoidable?" because sentencers may forget to do so.

Not surprisingly the Council has rejected the idea of opening itself up to a television documentary but it has promised to foster better links with academics, review research on the effectiveness of sentencing and engage more with stakeholders other than sentencers. An external agency will be appointed to examine issues of public confidence in sentencing.

Bottoms echoes several of the findings in the report I wrote for Transform Justice in 2016 -The Sentencing Council for England and Wales - Brake or Accelerator on the Use of Prison. He argues that a preoccupation with the prison population has blunted the impact of the Transform Justice report because “the current reality is that it would be politically very difficult for the Council, even if it wished to do so, to argue for a step change in the use of prison.” That may be true but does not excuse the fact that a body which could have curbed the unnecessary use of prison has largely failed to do so.

Actually, noises coming from the Ministry of Justice are more promising than for some time. Prisons minister Rory Stewart told Parliament this week that he will be looking at what more the Government can do to emphasise ​that a custodial sentence in the short term should be a final resort. He accepted there is a lot to learn from Scotland which has introduced a presumption against short prison sentences. Maybe the tide is finally turning?

Rob Allen

Too Many Suspended Sentences

This news in the Guardian is an idication of just how determined the government is to make TR work, rather than admit it's all been a terrible mistake:-   

Stop handing out so many suspended sentences, courts told

Community orders more legally appropriate, Sentencing Council for England and Wales says

Judges, magistrates, court clerks and probation officers have all been instructed to stop handing down so many suspended prison sentences and switch instead to giving offenders community orders. A leaked circular sent earlier this month by the chair of the Sentencing Council, Lord Justice Treacy, to courts across England and Wales warned that a punitive culture had developed – imposing suspended sentences “as a more severe form of community order” when not legally appropriate.

Probation officers have been told to no longer recommend suspended sentences in pre-sentence reports. The two-page letter highlights a stark trend that has emerged over the past decade of suspended sentence use rising sharply while the number of community orders has almost halved. Suspended sentences are given to convicted offenders on the understanding that if they reoffend or fail to observe their conditions they are liable to be sent to prison.

Treacy’s circular has been sent at a time when prisons remain overcrowded. In it he wrote that in 2005, courts handed out almost 203,000 community orders; by 2010 that had fallen to 188,000 and in 2015 it was fewer than 108,000. By contrast, the number of suspended sentence orders has risen substantially. They stood at 4,000 in 2005, reached 46,000 in 2010 and were more than 52,000 in 2015.

The circular explained: “Evidence suggested that part of the reason for this could be the development of a culture to impose suspended sentences as a more severe form of community order in cases where the custody threshold may not have been crossed.

“In such cases, if the suspended sentence order (SSO) is then breached, there are two possible outcomes – neither of which is satisfactory. Either the courts must activate the custodial sentence and the offender then serve time in custody even when it may never have been intended that they do so for the original offence. Or the court could choose not to enforce the suspended sentence, thereby diminishing the deterrent power of such orders.”

Treacy added: “A suspended sentence is a custodial sentence and not a more severe form of community order. They can only be imposed where the court has determined first that the custody threshold has been crossed and second that custody is unavoidable ... At that point the court may then undertake a weighted assessment of the various factors which may lead the court to consider that it is possible to suspend the sentence.”

In order to give effect to his warning, Treacy agreed with the director of the National Probation Service that probation officers would refrain from recommending SSOs in pre-sentence reports. Treacy noted: “This in no way impacts upon judicial discretion to suspend custodial sentences: it merely seeks to reinforce good sentencing practice.”

Penelope Gibbs, the director of Transform Justice, who has seen the circular, fears it could lead to judges giving more prison sentences if they are discouraged from using suspended sentences. She said: “I completely understand the desire of the Sentencing Council to increase community orders. But banning the probation service from recommending suspended sentence orders is not the right strategy. If a suspended sentence is not recommended, judges may use a prison sentence instead, and we know that short prison sentences are ineffective”

There has been growing concern that community orders are falling out of fashion. Two years ago the former lord chief justice, Lord Thomas of Cwmgiedd, called for the creation of “really tough, and I do mean tough, community penalties”.