Criminal Justice in a Time of Crisis

In their excellent briefing paper Coronavirus: Health care and human rights of people in prison, Penal Reform International recommend that during the crisis “Criminal justice systems must adapt the way they operate to prevent doing harm”.

Much of the discussion so far in the UK has been about whether to postpone trials to reduce risk of disease among those involved; and how to protect people in prison from transmission.

On court hearings, the government have decided that Crown Court trials expected to last more than three days will not commence, and more cases will be heard remotely using video technology. On prisons, the government are looking to increase the numbers of prisoners eligible for release on Home Detention Curfew. While both seem sensible measures, they don’t go far enough and in the case of early release don’t address the fact that far too many prisoners have nowhere suitable to go if and when freed.

What’s needed is a systematic approach which looks to reduce demand on the system as a whole allowing it to focus on its core priorities. For police and prosecutors this means diverting many more minor cases away from the courts.

Many Police Forces have recently moved to a two-tier approach of Community Resolutions and Conditional Cautions but in the current crisis the full range of options – simple cautions, fixed penalty notices, drug warnings – should once again be made available.  In 2018 almost half a million court convictions resulted in low level penalties such as fines or discharges. Many of these could have been dealt with through out of court disposals. The CPS is supposed to prosecute only where it is in the public interest to do so. Given what the public interest currently demands, prosecutors should ensure that out of court disposals have been fully considered before agreeing to take a case to court.

Where prosecution is unavoidable, steps need to be taken to reduce custodial remands to a minimum. In 2017, of those who were remanded in custody pending trial or sentence in magistrates' courts, 58% did not go on to be sentenced to prison - over 13,000 people  – and more than one-quarter of people remanded in custody in the Crown Court did not receive a custodial sentence. Without action, postponing Crown court hearings could lead to an increase in the number detained awaiting trial. Bail, with or without conditions (including electronic monitoring) needs to be encouraged wherever possible as an alternative.

At the end of last month, Wormwood Scrubs in West London held 1053 prisoners, not only well over its uncrowded capacity, but unusually, more than its operational capacity -the total it can hold taking into account control, security & the proper operation of the planned regime. A quarter of its population are on remand- increasing that number just now would be reckless.

As for sentencing, courts should be encouraged by the Sentencing Council to suspend prison sentences as much as possible. If unsuspended imprisonment is deemed necessary, convicted persons who have been on bail before court should be permitted to defer their custodial term for six months.  Probation staff should be encouraged to recall people on licence to prison only when they present a risk to the public.

This kind of demand reduction strategy is arguably sensible at the best of times but looks essential over the coming months.  There are ministers in the government who straddle the Home Office and Ministry of Justice. They together with the Law officers and Judiciary need to get on and implement it.  

Staying Afloat - 20 years of Youth Offending Teams

Despite well aired complaints about the volume of change faced by the criminal justice system in recent years, deep seated institutional innovations remain relatively rare. Last night’s anniversary event for the Association of Youth Offending Team (YOT) Managers at the House of Lords, provided the chance to reflect on the 20 years since New Labour’s creation of local multi- disciplinary teams to provide youth justice services, and the Youth Justice Board (YJB) to coordinate their efforts.

   

The YJB’s founding chair Lord Warner told us that the inspiration for YOTs came from Kent where he had been Director of Social Services in the 1980’s. His predecessor there, the Reverend Nick Stacey had persuaded police, probation and education staff to work alongside social workers on out-of-court disposals, the provision of court reports and the supervision of children serving community-based orders and after release from custody. 

Following the Audit Commission’s scathing 1996 youth justice report Misspent Youth, the incoming Labour government used the 1998 Crime and Disorder Act to alter fundamentally  the landscape in what Home Secretary Jack Straw called at the time the 'secret garden of youth justice'. Rejecting overtures from the Probation Service to take it over, Straw and Warner opted for a local authority led approach, adding health into the new YOT mix which was rolled out nationally by 2000.   

What’s the verdict after two decades of the new youth justice?

In 2007, I described it as the good, the bad and the ugly. Then, the creation of multidisciplinary teams to address the personal, social and educational deficits which underlie so much offending looked undoubtedly positive; and aspects of the way we locked up children including the gross over-representation of racial minorities in custody was shameful.  

What’s changed since then is the dramatic fall in both the numbers of young people being processed in the formal youth system and the population in the secure estate. YOTs deserve great credit for keeping so many children out of court and out of custody by carefully managing the unintended consequences of their interventions. While there is surely further to go, the 724 under 18s behind bars in December 2019 is a major improvement on the annual average of between 2,500 and 3,000 in the years 2000 to 2008. On custody, it's been a game of two halves.

What of the future?

While acknowledging the strengths of YOTs, Charlie Taylor’s 2016 Review of Youth Justice called for the removal of the duty on local authorities to establish them. He was concerned that some YOTs were alienated from other local authority services, operating within a silo and unable to secure the essential contributions of other services that their multi-agency make-up was intended to guarantee.

His findings echoed academic concerns from 2004 that “ the paradox of an imaginative multi-agency YOT structure that has, in general, weak links with child protection colleagues and a weak commitment to child welfare issues is one of the strangest features of the new English system.’ In similar vein, a survey conducted by the AYM this year identified a reduced sense of ownership of the YOT by the local authorities’ partners.

But Taylor’s recommendation that local authorities be given more flexibility in how they deliver youth justice services surely runs the risk of a return to Straw’s 'secret garden'. At the risk of stretching the metaphor, the government’s pledge merely  “to look at" Taylor's idea puts the proposal to remove the requirement for YOTs into the long grass where it probably belongs.

What does deserve serious consideration is how to enhance the work of YOTs through increased professionalisation of their staff and greater powers and  financial accountability. 

There is a growing case for recognising youth justice as a defined occupation, drawing on, but distinct from the disciplines represented in YOTs -as indeed there is in the secure estate. This is an area the Youth Justice Institute established last year is looking to explore further.

As for powers, the Youth Justice Task Force, that worked up the YOT concept after the 1997 election, argued that young people sentenced to custody should be placed by the YOT on behalf of the YJB; and that the latter should look at recharging some or all the costs of secure facilities to the responsible local agencies, so that custodial provision would no longer be a free good. 

Some steps have been taken in this direction, but a Justice Reinvestment approach could drive further reductions in the use of custody and the development more effective local measures to prevent and respond to youth crime. 

The YJB has been relieved of its duties to commission secure places and there were some mutterings last night about its long-term future. Taylor steps down as Chair in a few days and as far as I know  no successor has been announced. Whatever happens there, YOTs need to be kept afloat.      

"In other prisons you are an animal, here you are human" How Norway supports Prison Reform in Eastern Europe

Norway is well known for its distinctive approach to criminal justice. Fewer than 4,000 prisoners represent just 60 per 100,000 of the population (less than half the rate in England and Wales). Prisoners are mainly held in small and innovative prisons where highly qualified personnel aim to create as normal an environment as possible. Though difficult to measure, apparently very low reoffending rates have attracted visitors from around the world and the “radical humaneness” of Halden and the “nicest prison in the world” at Bastoy attract frequent media coverage.

What deserve to be better known are the impressive efforts Norway makes to promote and support prison reform beyond its borders, particularly in Eastern Europe. Just published is a Rapid Assessment I led last year on a 53 million Euro grant programme to support prison and probation systems in Bulgaria, Czech Republic, Latvia, Lithuania, Poland and Romania. 

As a legacy from the communist period, these countries inherited high prison populations, lack of community-based sanctions, inadequate and overcrowded prisons and poorly trained staff. Underpinning these problems has been a historical priority attached to punishment and security rather than rehabilitation. The Norway Grants scheme has helped to make inroads into the punitive culture in four main ways.

First, by improving material conditions. 78 pre- trial detention centres in Bulgaria, Latvia and Romania now largely meet European standards on space, ventilation, light, exercise and visits as a result of renovation and new equipment. New and modernised infrastructure has enabled prisons to reduce overcrowding, and better meet basic and healthcare needs- for example via a new kitchen at Bulgaria’s Burgas prison and medical facilities at Sliven Women’s prison. Replacing large dormitories with cell type accommodation in a Lithuanian prison has helped reduce the influence of a negative prison subculture dating from Soviet times. More creative infrastructure was developed in Romania where deep in the Danube Delta, prisoners were trained to use traditional techniques for walls and roofing to build vocational training spaces. Now, the mainly Roma prisoners can benefit from the “human ecology” approach to imprisonment pioneered at Bastoy.  

Second, regimes and services for prisoners have been enhanced, not only through education and training but treatment for addiction and preparation for release. Olaine Addiction Centre was set up to offer treatment for the four out of five prisoners in Latvia with a drug problem. Intensive individual and group programmes are provided for each resident by psychologists and “contact persons”- prison staff -who don’t wear uniforms and play a role more as mentors than as guards. One resident told us “in other prisons you are an animal, here you are human.”

More innovative still is the Lithuanian Mother and Baby Home – a comfortable 5-bedroom detached house purchased with Norway grant funds so that women can serve their sentences without being separated from their young children.  The mothers felt that they could really look after them, buying and cooking food, taking them out to a nearby park, the theatre or other educational activities. As one said, “It’s not like prison it’s like home”.

Third, professional training has involved more than 20,000 participants across the six countries - guards, psychologists and social workers – with courses including first aid and escorting duties, specific treatment programmes, human rights and dynamic security. Poland in particular, has invested heavily in its prison staff training capacity, borrowing heavily from the Norwegian Correctional Staff Academy, while the Czech Republic developed a curriculum for continuing professional training of probation staff. In Bulgaria, a prison service previously cautious about working with and learning from civil society groups embraced the opportunity to do so.     

Finally, Norway has supported alternatives to prison through funding Electronic Monitoring  and investing in probation staff and programmes. In Latvia, if they agree to be monitored, prisoners can apply for conditional release from prison at an earlier stage of their sentence than usual. Since the scheme was introduced in 2015, 267 people have been “tagged”, with a 93% success rate. Only 16 were returned to prison following violations.  

The assessment found that the impact of the programme as a whole was down to much more than Norway’s deep pockets. Bilateral cooperation with Norwegian institutions has provided inspiration, support for policy and practice change, educational content in terms of models and programmes, and connections with relevant organisations and agencies. Some of the more straightforward infrastructure improvements might have been made without input from Norway (and the Council of Europe who were also involved). But new regimes and services for prisoners, alternatives to custody and professional training of staff could not have been developed and implemented to the extent that they were without the involvement of the partners.

A new cycle of grants is now underway which looks to build on what has been achieved. The assessment makes a number of recommendations about how impact in the future can be maximised- and better measured.  But the report is in large part a relatively rare thing. A good news story about prisons.  

Process or Content? Why the Royal Commission should look at Sentencing and Prisons.

Unless I’ve missed it, the government is yet to clarify the scope of the proposed Royal Commission which will review and improve the efficiency and effectiveness of the criminal justice process. No one seems sure what lies behind the idea for the Commission, although the Prime Minister has said through it, his government will spare no effort in addressing the profound concerns of millions about the state of our criminal justice system. But what are those concerns and what will be covered?

“Process” suggests the review will look at least at police powers, the role of prosecutors and the way courts go about convicting the guilty and acquitting the innocent.  But what about the two areas which are currently near the top of the domestic agenda- sentencing, particularly for serious offenders and the way sentences are implemented through imprisonment, probation supervision and parole.  

Statutory instruments have already been used to toughen punishment for serious sexual and violent offenders sentenced from April and an emergency bill to amend release arrangements for terrorist prisoners will be put before parliament this week. 

But these look like first steps. If, as former Chief Justice Lord Judge told the Lords last month, the ​Government are committed to a wholesale investigation of whether sentencing levels and dates for release are appropriate, changes should not be made through a piecemeal series of secondary legislation as thinking develops. A much more measured and coherent approach is surely needed instead.  A White Paper has been promised but something more profound and less partisan might find consensus on what are inevitably controversial issues.

A recommendation made in a 2014 British Academy report to review sentence lengths in relation to those of other European countries has probably not aged well.  But the Academy’s conclusion that policy making needs to take place in a longer-term context, with greater separation of sentencing policy from the political process is still surely correct.   

Similarly, on prisons, probation and parole, there is a risk of a series of tactical responses to problems as they arise without any strategic thinking about the purpose and structure of penal system. We might see the creation of “one terrorist prisoner management service, covering individualised treatment programmes, risk assessment, release decisions and resettlement supervision” as proposed last week by Ian Acheson, who reviewed Islamist extremism in prisons, probation and youth justice back in 2016. Or the transfer of responsibility for the penal system as a whole from the Ministry of Justice back to the Home Office as recommended by Policy Exchange – something possibly made more likely by the National Audit Office’s dispiriting report on the MOJ’s recent efforts to improve the prison estate.

There are arguments for such changes- not strong in my view- but they deserve to be considered in as politically neutral space as possible, as part of a comprehensive assessment of prison and alternatives to it and their links with wider areas such as health, education, employment and social services. Ex-jail governor John Podmore argued last week that two thirds of people going to prison need social inclusion not security. But such a change of emphasis will only come about through some kind of external pressure of the kind that can emerge from a Royal Commission or similar.

There are risks of course. The 1964 Royal Commission on the Penal System in England and Wales was brought to an early close as it was felt that the time was “not opportune for a single review of the penal system” that could draw clear and robust conclusions and recommendations. But maybe its time to start it up again.

       

Prison Broadly Fails

Not the words of the Howard League or Prison Reform Trust but ex Met Commissioner Bernard Hogan Howe a self-styled “hard-nosed enforcer” who thinks punishment really important. He was speaking in last week’s House of Lords debate on ending automatic halfway release for serious offenders. Despite his widely shared view – in the Lords at least- that there are already far too many prisoners, the Conservative manifesto pledge has been approved by both chambers. And the number of prisoners is likely to get a lot higher over the next ten years.

2,000 new prison places will be needed by 2030 as a result of the Statutory Instrument (SI), approved yesterday in the Commons which will see anyone getting a determinate sentence of seven years or more for a serious sexual or violent offence (carrying a maximum of sentence of life) spending two thirds of their term locked up.

But many more cells will be needed much more quickly if legislation promised for later in the year scraps release at halfway for a wider range of prison sentences. Justice Minister Chris Philp told MP’s the SI is "simply the first step in part of a wider process to make sure that we not only protect the public but respect the rights and concerns of victims”. 

Philp had barely got to his feet before one of his colleagues demanded prisoners serve the whole of any sentence imposed. Another wanted even longer than that if they misbehaved inside.  

More telling were the powerful contributions made by MPs who expressed the anger and frustration of constituents- and in one case their own family- who affected by serious crimes felt early release meant justice had not been done; not enough punishment , not enough deterrence, not enough protection for victims and the public- not enough time, some said, for rehabilitation.

On the positive side, Philp promised proposals to do more to treat the causes of offending behaviour, particularly drug and alcohol addiction and mental health problems, which are often the cause of high-volume repeat offending. Philp told MPs that “short custodial sentences do not deal effectively with that cohort of offenders”. So David Gauke’s plans to replace them with community orders may still be alive and well in the MoJ. But, while these welcome measures, depending how they are implemented, could reduce the flow of people into prison, they won’t come close to offsetting the impact of larger proportions of longer sentences being served there.

Add in the effects of the 20,000 new police officers- I’ve heard an estimate of a 12-15% growth in prison numbers resulting from better clear up rates- and there’s a perfect storm for HMPPS and the MoJ. A former Chief Justice wondered aloud in the Lords whether even to meet the costs of the initial measures in the SI other parts of the MoJ particularly the courts and legal aid would continue to be denuded to prop up the Prison and Probation Service.

There will at least be a White Paper which will set out the Government’s approach which at best looks like what criminologists used to call bifurcation – more prison at the top end, less at the bottom.

For those of us who want to see less use of prison across the board, there is an urgent need to develop some fresh thinking. Decrying a populist approach and lack of evidence – as Labour and Lib Dem Peers did last week -will not get far.

It is not true – as one MP put it, that there has been “a creeping, pervasive shift away from the victim towards the perpetrator—that the victim is no longer put first, but the perpetrator is.” But penal reform must engage better with the concerns and anxieties of victims- particularly victims of violent and sexual harm- and develop and promote measures which can address them so much better than incarceration.  

The government told Parliament that the White Paper will give an “opportunity to go further and broader” than the measures they were discussing. They are right. If prison broadly fails, we need to legislate for and invest in what broadly succeeds.  

Children in Custody- Time for Separation from the Prison Service

The Chief Inspector of Prisons has said he does not believe that children under 18 should be held in prison.  “The Prison Service is essentially an organisation for adults, neither structured nor equipped to deal with children. It is the plight of children that alarms us most, not least because of the conditions in which they are held in Prison Service establishments”. This was David Ramsbotham almost a quarter a century ago -but it should have been what his successor Peter Clarke said today.

Clarke’s shocking report on the separation in young offender institutions (YOIs) rightly calls for an entirely new approach to what is effectively solitary confinement, in which children spend long periods of time in their cell without any meaningful human interaction. But disappointingly, he stops short of demanding more thoroughgoing change to a system in which the atrocious treatment he describes is just one symptom.  After four years of diagnosing the ills of youth (and adult) custody, a more radical prescription from Clarke, who steps down shortly, would have been timely for two reasons.

First, the May government accepted the vision contained in Charlie Taylor’s review   that YOIs and Secure Training Centres should be replaced in the longer term by smaller secure units situated in the regions that they serve. But the Johnson administration has yet to confirm the vision is still in place - the manifesto talked only about “trialling secure schools.” A clear signal from the Chief Inspector that the current arrangements need to be replaced would usefully reinforce the case for bold, radical  and comprehensive action. Whether we need new secure schools is open to question, however. Think Tank Crest Advisory has recently argued for an explicit commitment to the closure of all Young Offender Institutions by 2025 and an expansion of secure children’s homes instead.  

Second, among the speculation about possible changes in the machinery of Johnson’s government, a case has been building -for example in last week’s Policy Exchange Report – that Her Majesty’s Prisons and Probation Service (HMPPS)  be  reabsorbed into the Home Office, bringing prisons under the direct control of the Home Secretary, whose department deals with threat, harm and risk to public safety. There are many arguments against doing this, one of which is that it would make prisons even less suitable for dealing with children.  A better move would be to shift responsibility for youth justice to the Education Department alongside children’s social care and secure accommodation.

There’s no guarantee of course that the government would accept recommendations for these kinds of structural changes had Clarke made them. New Labour baulked at Ramsbotham’s proposal, leaving the new Youth Justice Board to drive up standards in YOI’s.  Short-lived improvements in the early 2000’s could not overcome fundamental structural faults. The Youth Custody Service too has struggled since 2017 to make YOI’s sufficiently child focused. Despite some good staff, the buildings, rules, procedures and culture are all too often simply wrong.

So too is the level of investment. The government in their response to the Taylor review promised additional specialist support units with a higher staff to young person ratio to provide enhanced psychological support and guidance to children and young people with the most complex problems.  The Inspectorate report’s finding that many children in YOIs are subject to unacceptably impoverished regimes tells a different and depressing story. 

Now’s the time to start writing a new chapter .

Sentencing on the Box- More Confidence or More Prisoners ?

What will be the impact of televising judges’ sentencing remarks in the Crown Court? Justice Secretary Robert Buckland and Lord Chief Justice Lord Burnett hope that regular broadcasting will improve public understanding of the justice system. The BBC, ITN and Sky, who have long campaigned for greater transparency in the courts say much the same. But there must be serious questions about whether filming and broadcast from courts will in fact lead to an increased level of public confidence in the sentencing decisions handed down by judges. Around 70 per cent of the public think sentencing in general is too lenient and while this perception is often reduced when people are presented with individual cases, the latest research for the Sentencing Council found that “for some offences, there may be a public appetite for higher sentences than the guidelines suggest or legislation allows”.

Critics of the plan include barrister Clive Stafford Smith, who  thinks televising sentencing decisions is a very bad idea indeed which will impose “political pressure on judges to be harsh on people populists hate and label ‘criminals’”. I’m concerned that there’ll be a spike in complaints about unduly lenient sentences and a chilling effect on creative sentencing which prioritises rehabilitation over punishment. All that could mean longer sentences and a much-increased prison population.  Or will the benefits outweigh the risks?   

The Supreme Court has allowed broadcasting of its proceedings since it was established in 2009 and filming in the Court of Appeal has been possible since 2013 although I can’t remember seeing much footage of the latter. The government reviewed the introduction of Appeal Court broadcasting after a year of implementation, concluding that after some initial problems, it had effectively been embedded into court practice. The review also raised the issue of whether “the broadcast material is used in a manner conducive to achieving the policy aims of improving public access and understanding of court judgements”. This theme was one to be re-considered as part of a proposed test in the Crown Court which was undertaken three years later.

In 2016, the government launched that test of the practical and technical challenges of filming in the Crown Court. In Parliament, “support was expressed for an extension to court broadcasting if it led to increased public understanding of the court system and greater transparency of court judgements”. But how do we know if it has achieved these worthy aims?

An Impact Assessment prepared in 2016 before Parliament approved the test filming in the Crown Court said that “following the end of the test period, a further Impact Assessment will be prepared to support the final decision as to whether to allow Court Broadcasting of sentencing remarks from the Crown Court”. But the Statutory Instrument (SI) laid before Parliament last week which would make that final decision has no Impact Assessment attached to it.  One has not been prepared “as no significant impact on the private, voluntary or public sector is foreseen”.

Before approving the SI, MPs and Peers must ask some serious questions about what is known about experience so far- and indeed in other jurisdictions where filming is allowed.  The government have acknowledged that their policy aims would not be met if the media selected cases for public interest value or excitement, rather than with the aim of promoting understanding. Risks have also been raised by government that “televising our courts may open the judicial process to sensationalism and trivialise serious processes to a level of media entertainment”.  How do they propose to prevent this happening?

The government claims that televising hearings is part of their wider court reform and digitalisation programme, “using technology and modern ways of working to increase access to justice for people up and down the country”.  But, to coin a phrase, they would, wouldn’t they?