Prison Plans

 

How is the government doing on its pledge to create 20,000 new prison places by the mid 2020’s? With prison numbers projected to rise from the current 85,000 to between 93,000 and 106,000 by 2027, what’s been touted as the largest prison building programme for 100 years deserves close monitoring.

Prisons Minister Damian Hinds wrote this week that “at least c.6,400 new prison places are anticipated to be delivered by the end of May 2024, rising to c.8,200 by the end of May 2025.”  But in the absence of one published master plan setting out when and where the new cells are expected to come into being, it’s not as easy as it should be to keep track of progress.

In this first of three blogs, I describe where things stand with the largest component of the programme- the building of new prisons. The next one will look at how existing prisons are being expanded and converted to produce more space; and a third will offer some reflections on the process of planning, designing, and constructing additional prison places.

The MoJ are aiming for 9,800 places to be built in six new prisons built from scratch. Of these, HMP Five Wells and HMP Fosse Way, both Category C resettlement prisons are already open.  Five Wells run by G4S, built on the site of the old Wellingborough Prison took its first prisoners early last year. It should have the space to accommodate 1,680 men, though at the end of May 2023, its population was 1,407 and operational capacity 1,420.  

Serco run Fosse Way opened its doors at the end of last month despite “minor construction activity” continuing on what was formerly the Leicestershire site of HMP/YOI Glen Parva. Fosse Way will eventually hold 1,715 men with plans already agreed for a further 250 places to be added.

Further north, construction work is underway on one further Category C men’s prison, HMP Millsike (situated on land opposite the existing HMP Full Sutton in the East Riding of Yorkshire). After it opens in 2025, it will have a capacity of 1,440. 

The three Cat C prisons will add up to 5,085 places to the prison estate. For the MoJ, so far so good.

More problematic is that planning permission for three further new prisons has not yet been granted with the MoJ in the midst of appeals against each of the refusals by the local authorities.    

First, in December 2021, Chorley Council  refused planning permission for a 1,715 place Cat C prison on land next to Garth and Wymott prisons in Lancashire due to the impact it would have on the Green Belt and on road safety.  The local councillors’ decision was made against the advice of their officers, but reflected strongly held concerns of local residents, expressed via the Ulnes and Walton Action Group.   

Following an inquiry in July 2022, the Planning Inspector recommended the MoJ’s appeal be dismissed. But ministers in the Department of Levelling Up, Housing and communities disagreed. The Secretary of State, former Justice Secretary Michael Gove, “is minded to allow the appeal and grant planning permission”, subject to the hazards and risks within the local road network being acceptably addressed.  The inquiry will re-open on 19 September 2023 to consider whether they have been. 

Second, in March 2022, Buckinghamshire Council’s turned down plans for a 1,468 place Category C prison next to HMP Grendon, concerned about limited transport access and adverse impact on the local environment. The MoJ appealed and an inquiry was held in January 2023, with a decision expected by 4 September.

Finally, Harborough Council decided on 7 April 2022 that the proposed 1,715 place Category B prison, south of HMP Gartree in Leicestershire,  was unsustainable by virtue of its location and would have a harmful impact on the character and appearance of the rural surroundings. No decision has been reached following the MoJ appeal and inquiry held in October last year. The Gartree Action Group formed by local residents told the inquiry that the Leicestershire countryside is no place for an industrial scale infrastructure project of this size.

Following Mr Gove’s decision about Chorley, the MoJ is probably fairly confident of a positive outcome there and in all three sites. In all they would provide 4,898 new places.

Should Grendon 2 and Gartree 2 fail to get off the ground, there is one back up possibility in Essex.  Consultations were held in 2021 about the possibility of two new prisons – one Cat B, one Cat C -on the RAF site at Wethersfield.  The result of the consultation does not seem to have been published and no planning application has been submitted to Braintree District Council.  There seems considerable  local opposition.

The option may be off the table since three months ago, the Home Office announced their intention to use the site to house 1,700 asylum seekers, using powers the Crown has in cases of national security and emergencies. The Council’s attempt to obtain an injunction to stop the plan was refused and an outcome of their appeal against that decision is awaited following a hearing this week.  

Beyond that, despite exhaustive searches of central and local government land in 2020 and again in 2022, there look to be no other site options. A search of private sector land in 2020 yielded no real possibilities – presumably as anticipated by the civil service wag that named the exercise Project Emu.

A senior HMPPS official told the Gartree inquiry that “From a planning decision, it would take about 5 years to build the prison”. If he’s right, none of the three sites under appeal will be ready until 2028 at the earliest.  So there may yet be some sleepless nights in Petty France. As another official said to the Chorley Inquiry "the forecast rise in prison population is unprecedented territory for HMPPS."

Crowded House

 

Pressure on the prison system eased a bit this week, with the population falling by 161 from 85,407 last Friday to 85,246 today. It’s because since Tuesday, it’s been possible for prisoners to be released on Home Detention Curfew (HDC) up to 6 months early rather than the previous four-and-a-half months. Because of the initial backlog of people immediately eligible for the revised electronic tagging scheme, the number on HDC this week – 2,059 - is 239 higher than last week.  The Justice Ministry  expects “a spike of up to 400-450 in the estimated HDC population” over the next two months, which will further help to alleviate demand for prison places.

By how much is not clear, however. About a quarter of people on HDC are referred to the Community Accommodation Service , known as CAS-2. Run by NACRO, CAS-2 provides a place to live for defendants on bail and offenders after release from prison if they lack their own housing.  Increased demand for places for people on HDC could reduce availability of beds for bailees, thereby inflating the already high remand population in custody.  It’s important that plans to increase the number of CAS-2 beds from 650 to 850 are implemented this financial year.

On the supply side, HMP Fosse Way, operated by Serco, received its first prisoners on 29 May, although its Operational Capacity seems initially to be just 20.  Numbers will ramp up over the next year until the Category C prison reaches its full capacity of 1,715. Construction of an additional block with 250 more places will start later in the year.

Prison minister Damian Hinds told MPs that “Some minor construction activity continues on site, with no impact on the prison operation.”  According to the prison’s twitter feed construction was approaching completion in early April .

While these developments should help reduce overcrowding, the government expect prisons to be operating close to capacity for some time yet. Former Justice Secretary Dominic Raab informed the Lord Chief Justice in February that “the volume of cases going through the criminal justice system will result in significant pressure for at least the remainder of this year”. Raab hoped that “keeping the judiciary informed of the pressures in prisons will enable judges to take all relevant factors into account in the daily work of the courts”. When doing just that in a case in March which quoted from Raab’s letter, the Court of Appeal remarked that “it will be a matter for government to communicate to the courts when prison conditions have returned to a more normal state”.

We still have some way to go before that is the case.

A Secure Future? STCs and Secure Schools

 

The last of three blogs about Secure Training Centres (STCs) to mark 30 years since they were first announced in March 1993.

30 years after Kenneth Clarke announced to MPs that new Secure Training Centres for child offenders would be “different from anything ever provided before”, we now await the “revolutionary first secure school,” ironically on the site of the first STC at Medway.

After a series of delays, the 49 place Secure School is due to open early next year, ten years after the Coalition government launched and then thankfully scrapped its own plans to “transform” youth custody through a 320 place Secure College in the East Midlands.

While dreaming up better ways of locking up children looks increasingly like the triumph of hope over experience, is there anything to be learned from the history of STCs which might give Secure Schools a fighting chance of success? There are six main areas where things will be done differently.

First the provider. Oasis Restore, part of the Oasis Charitable Trust is a much more values driven organisation than the security companies and prison providers that have run the STC’s. Its status has been controversial, with legislation needed to ensure that operating a Secure School can be a charitable activity at all. The parent charity’s first objective is “the advancement of Christianity”, which has raised eyebrows too. But its ethos, and its experience in running academies, housing and community projects make it well suited both to run a therapeutic establishment which integrates education, health, and care and to reintegrate young people afterwards. 

But, and it’s a big but, it has no experience of having done this in a closed setting. As they admitted when they bid to run the school back in 2018, “none of the Oasis component charities…. have been involved in leading secure provision. We have much to learn.”  

Second the building. Almost £40 million is being spent at Medway to create a “beautiful physical environment for staff and students”: This will comprise 12 flats with up to six bedrooms, a laundry room, living area, small kitchen dining room and staff room, mostly open plan. Each flat will have garden. Careful thought has reportedly gone into the design, furniture, colour schemes, branding, and landscaping.

Much bigger windows than before will let in lots of natural light and students will be able open and close their own bedroom windows through a secure panel, giving a small but important element of control.

When I was a member of the Youth Justice Board efforts were made to soften the harsh environment in the custodial estate, but to limited effect. It's so much better to get it right from the off, so while the costs of remodelling the STC may have rocketed, they should pay dividends.  

Third, the operating model. The bid to run the Secure School submitted in 2018 outlines a detailed multidisciplinary approach and busy daily timetable supervised largely by residential “coaches”. Much of it looks highly promising if at times ambitious- for example the idea of enabling students to practice newly acquired vocational skills in outlets at the school open to the public as customers.  

STCs often struggled with much more basic problems such as finding ways to cope with challenging behaviour. While Oasis founder Steve Chalke has promised “no guards, no uniforms, no clanging keys”, the 2018 bid envisages a role for security officers who will be trained in restraint. The bid outlines a token economy with each student receiving a pay cheque on a Friday reflecting how they have behaved. This can be cashed in for “Oasis Dollars” to buy privileges and to be forfeited in cases of poor behaviour. Similar incentive schemes have had a mixed record in youth custody. In cases where a young person needs to be removed from a classroom or house for their own safety, they will be taken to a Reflection Room, with a coach. How different will this be to the use of separation in STCs?

No doubt the operating model will have developed since 2018, in negotiation with government, following the appointment of the senior management team last year and a public consultation (although no outcome of that appears to have been published). It’s encouraging that Oasis has employed three young people with experience of custody, as “Co-Creation Workers” to help design the regime. As a backstop, the Secure School must accommodate, educate, and care for the children to the standards required by law of a 16 to 19 Academy and a Secure Children’s Home.

Fourth, the children. Asked what had gone wrong with STCs, Ministry of Justice bosses told MPs last year that nowadays the children they took were older and “more difficult to manage” than in the past and had committed far more serious offences. It’s true that the STCs were originally designed for 12-14 year olds but the age range was extended many years ago- as was their role in holding children charged with or convicted of the most serious offences. Of course the welcome fall in the numbers of under 18’s in custody, from 2000 in 2010 to just 450 at the end of March has heightened the concentration of these most challenging children in individual establishments, but they’ve always been there.

The Secure School will take up to 49 children aged 12-18, male and female, on remand and serving sentences. The draft funding agreement says it “shall use its best endeavours” to accept all of those referred to it by the Youth Custody Service. But as with other Secure Children’s Homes, the Secure School will not be required to accept everyone referred to it. This may provide some essential flexibility in respect of its clientele, particularly in its early weeks and months. Particular attention will need to be given to the very small number of girls likely to be there.  

Fifth, the staff: In 2016, Charlie Taylor’s youth justice review   found that many staff working in STCs (and Young Offender Institutions) “do not have the skills and experience to manage the most vulnerable and challenging young people in their care, nor have they had sufficient training to fulfil these difficult roles”. Once it became clear STCs were not a growth area, it’s been harder still to attract and retain highly skilled people to work in them. Short term initiatives to increase the knowledge and skills of staff have had mixed results.

The 2018 Oasis bid sets out a range of initiatives to recruit and retain high quality staff, including impressive looking training and professional development opportunities. The challenge is likely to be much greater in the post Brexit, post Covid world, but it’s the one which will probably determine the success of the programme. Recruitment is underway now, with the site available to staff from the Autumn. There should be indications by then as to whether the Secure School has the people it needs.  

Finally there is the relationship with government. One of Charlie Taylor’s criticisms of STCs was that  “operators can become slaves to the myriad terms of their contract”. The draft funding agreement seems much less prescriptive for the Secure School  than for STCs and all the better for it.

On the other hand, Secure Schools will be accountable to both the Ministry of Justice and the Department for Education (and within the DfE to the two divisions responsible for Academy Trusts and Secure Childrens Homes).  Inspection it seems will be by Ofsted alone rather than jointly with the Prison Inspectorate as was the case with STCs.

Time will tell whether these arrangements prove beneficial.  The Oasis Restore website says that “in most instances, Ofsted will not select new schools for a first inspection until they are in their third year of operation”. This seems much too long to me.

While it is important to allow any new institution to overcome inevitable teething problems, it will be important to form a view about whether the fine words and intentions expressed by the provider are being translated into good practice. I hope they will be.

However, in the light of history, it has to be a case of “Trust but Verify”.   

Secure Training Centres at 30: The Good, the Bad and the Ugly?

 

The second of three blogs about Secure Training Centres (STCs) to mark 30 years since they were first announced in March 1993.

Plans for the new STCs didn’t get an easy ride in Parliament, opposed both by Labour and in the Lords. Former Tory Home Secretary Lord Robert Carr led efforts there to allow Secure Training Orders (STO) to be served in local authority secure units as well as STCs- but what amounted to wrecking amendments ultimately came to nought. Provisions enabling STOs and STCs became law as the first part of Michael Howard’s Criminal Justice and Public Order Act in November 1994. 

But delays in finding suitable sites, selecting providers and finalising what were novel private financing arrangements meant the first Centre had not been built, let alone opened, by 1997 when New Labour came to power.

Faced with the prospect of buying out costly contracts, Labour stuck with the STC programme. Medway, the first Centre opened in April 1998, Hassockfield in County Durham, and Rainsbrook in the Midlands a year later. As part of a comprehensive youth justice reform, the STO disappeared, wrapped into a new Detention and Training Order- and STC’s were opened up to the full range of children remanded and sentenced by the criminal courts.

Home Secretary Jack Straw, who’d previously described private prisons as “morally repugnant”, hatched a plan with the Chair of the new Youth Justice Board (YJB) to create 400 places in STCs. In the end, only one additional centre was built, Oakhill in Milton Keynes, though the existing ones increased their capacity.  Rainsbrook created a mother and baby unit specifically designed to care for detained young mothers and their babies, and those in the final stages of pregnancy.

As a YJB member, I’d reluctantly backed more STC places in order to reduce the numbers of children held in prison establishments. But with several other Board members, I was uneasy that part of the price was also a reduction in places in secure childrens homes, including the closure of the only two secure units in Greater London. When STCs were first proposed, Tony Blair, then Shadow Home Secretary, wrote that it was ‘insane to set up these new centres at the same time as the local authorities are having to close some of their facilities for disturbed young people in communities throughout the country’. Yet the government he was leading was doing just that.

Competitions to run Medway and Rainsbrook had been won by security company Group 4 (now G4S) who had been running the UK’s first private prison The Wolds since 1992 and were, for reasons I’ve never fully understood, keen to expand into childrens custody. There was money to be made of course but serious risks of reputational damage if things went wrong.

When working on secondment in the Home Office, I’d been concerned that the company didn’t fully appreciate the challenges of undertaking such a complex task. At one meeting at their Worcestershire HQ, they’d argued that professional training for staff was much less important than the ability to faithfully follow procedures as set out in a manual. So it wasn’t a great surprise when Medway got off to a difficult start and when the evaluation of its first two years’ operation found staff confused about the purpose of the Centre and ill-prepared to deal with the trainees. 

While improvements followed, 16 years later Charlie Taylor’s youth justice review found that many staff working in STCs “do not have the skills and experience to manage the most vulnerable and challenging young people in their care, nor have they had sufficient training to fulfil these difficult roles”. Promising recent initiatives to provide such training have proved too little too late.

So how should the lifetime performance of STCs be assessed?

The early years were overshadowed by the tragic deaths of two boys. 15 year old Gareth Myatt lost consciousness and died following physical restraint by three staff members at Rainsbrook in April 2004.  Four months later, 14 year old Adam Rickwood hanged himself not long after being restrained at Hassockfield. Inquests on Gareth and Adam each returned a damning verdict, not least about the failure of the Youth Justice Board to monitor the lawfulness and safety of restraint techniques used in STCs at the time. The Board, me included, should have been much more alert to what was going on and started work on the vexed question of physical restraint much sooner.   

What could be termed the middle years saw positive performance reported in each of the Centres with Ofsted rating Medway and Rainsbrook “good” or “outstanding” after each visit between 2007 and 2015, with G4S run Oakhill the same between 2009 and 2015. Serco’s Hassockfield was slightly more mixed but “good with outstanding features” in its final inspection in 2014 shortly before it closed, deemed surplus to requirements given big falls in the numbers of children in custody.  

Through this period however, levels of restraint remained high with a series of efforts to minimise its use achieving limited success. Routine strip searching was replaced by a risk assessment process in STCs in 2011 but still widely used. There were probably spells when the STCs provided levels of care and education comparable to that in secure childrens homes, although it is likely that a culture of control was prioritised over rehabilitation and safeguarding even then.

But it’s the years since 2015 which have been a disaster for the three STC’s that remained open.

In 2015, Ofsted reported serious incidents of gross misconduct by staff and managers at Rainsbrook with young people subject to degrading treatment, racist comments, and care from people under the influence of illegal drugs. Following its transfer to new provider MTC NOVO in 2016, Rainsbrook had problems recruiting and retaining staff with matters coming to a head during the pandemic.

In 2020 Rainsbrook was subject to an “urgent notification” (UN) to the Secretary of State when inspectors found children receiving a bleak and Spartan regime, with little encouragement to get up in the mornings and senior managers unaware of what was going on. Inexplicably, Rainsbrook deteriorated further, receiving another UN in 2021 after children and staff told inspectors of their concerns that a child or adult would be harmed or die as a result of the poor practice and management in the centre. The contract with MTC was terminated in December 2021 and Rainsbrook’s closure was confirmed at the end of last year.  

At Medway, in January 2016 an undercover Panorama documentary showing apparent mistreatment of young people and descriptions of deliberate falsification of records by staff prompted a police investigation, dismissals and resignations. Medway was transferred to the Prison service, who, incredibly, was unable to account for all of the keys on handover from G4S. Despite some initial improvements, Inspectors continued to rate Medway as requiring improvement, or in its final inspection, inadequate, due to ineffective strategies to manage serious and significant incidents. Medway closed in March 2020 and is currently being remodelled as the site of the first Secure School.

Oakhill was also made subject to the UN process in 2021 after an inspection revealed children living in a dilapidated environment, experiencing frequent incidents of violence and use of force, and being cared for by inexperienced staff.

Here at least, the situation has improved with the Youth Custody Service deciding to remove its post-Urgent Notification oversight procedures in January 2023 following sustained progress.  It is the last STC standing.

Despite the historically low numbers in custody, the closure of Medway and Rainsbrook has put pressure on the wider secure youth estate, forcing girls once again to be placed in a prison setting, albeit a specially designed unit at Wetherby Young Offender Institution.

Why did things go so wrong and so fast over the last eight years? Have children become more challenging? Good staff harder to recruit and keep? Or did inspection and monitoring arrangements fail?

Or are there more fundamental problems with a privatised model of care for some of the most vulnerable children?

Next month’s final blog in the series will offer some possible reasons for the catastrophic failures of STCs and whether they offer any lessons for the new Secure School due to open next year.

Secure Training Centres: Not A Very Happy Birthday

 

Secure Training Centres (STCs) are 30 years old today, or at least the idea of them.  It was on March 2 1993 that Home Secretary Kenneth Clarke first told MPs he would give courts a new power to detain children aged 12 to 15 “whose repeated offending makes them a menace to the community”. A Secure Training Order (STO) of up to two years would be served in brand new institutions provided by the public, voluntary or private sectors.

The first STC opened at Medway in 1998 and three more thereafter. Only one remains in operation today.  Clarke promised MPs that they would be different from anything ever provided before. If he was proved right, it is only because their history has perhaps been uniquely troubled in comparison with the custodial facilities which preceded them. But in truth, they represent an all too familiar tale of institutional failure in the secure care of children.

STC’s were a highly controversial measure from the off and still are. Only a few months before they were announced, the minimum age at which children could be given a custodial sentence had actually been raised, from 14 to 15 with the implementation of the 1991 Criminal Justice Act. This had also brought 17 year olds into the Youth Court for the first time. But the progressive tide was to turn very far and very fast.

In the run up to the STC announcement, the usual slow moving consideration through Whitehall’s policy-making machine had been fast tracked following the terrible abduction and murder of 2 year old James Bulger by two 11 year old boys in Liverpool three weeks earlier.  There were already powers on the statute books to impose long periods of detention on children convicted of  grave crimes.  But what Clarke’s Labour Party shadow Tony Blair described as “hammer blows struck against the sleeping conscience of the country” added huge impetus to demands for a new and decisive initiative on youth crime more broadly and in particular on persistent young offenders.

So, on secondment in the Home Office at the time, I found myself helping colleagues and Clarke to hammer out the text of a speech that reassured his party and the public that serious action would be taken to get the problem under control without making too many unacceptable, unaffordable, or undeliverable commitments.

When Clarke had become Home Secretary after the 1992 election, he’d been keen to revive the idea of Approved Schools as a way of dealing with juvenile offenders. These residential facilities had operated under Home Office supervision until the 1970’s when they were renamed Community Homes with Education, integrated into a network of childrens home organised by local authorities and regulated by the Department of Health (DH).

Clarke was influenced in part by his local Chief Constable in Nottinghamshire and other senior police who blamed rising crime on small numbers of young people, whom courts were allegedly powerless to detain.  Clarke thought that local authorities, who could apply to lock up these children, too often prioritised care over control and that anyway there were insufficient secure places available in which to detain them.  

Based on research and experience, civil service advice was cautious to say the least about the value of a new generation of closed institutions. DH officials with whom we, increasingly uneasily, shared responsibility for juvenile justice policy, were downright hostile- disliking the idea itself and what they saw as an assault on their territory. Until February 1993, the Home Office was planning what a senior colleague described as a “very greenish White Paper” to air some options for the future. The context was changed inexorably by the horrific events in Merseyside and a mounting public and political debate on law and order. 

During a frenetic three weeks, Clarke was adamant that both new court powers and new institutions were needed. Some quick and dirty research suggested 200 places should be created in what were initially to be known as secure treatment centres- “training” replaced “treatment” not long before the announcement.  There were to be five of these new centres.

DH officials and even Health Secretary Virginia Bottomley argued hard that expanding existing local authority secure units- some, ironically, the successors of Approved Schools -would work far better than creating an untested new type of facility. Their, to my mind, wholly sensible view was side lined after Prime Minister John Major publicly argued that in fighting crime “society needs to condemn a little more and understand a little less.” Furthermore Clarke was determined to give every opportunity for the private sector to run his new centres. So the STC’s were conceived.

After the announcement, we had to put flesh on the policy bones and come up with a specification and sites for the new STCs, as well as prepare legislation. To inform this work, with DH colleagues, we visited existing open and closed facilities run by health, education, and social services. These included three Training Schools in Northern Ireland later found to have been sites of systemic failings and abuse (though not necessarily at the time of our visit); a deserted former therapeutic community of international renown in Surrey badly damaged by fire a few years earlier and destined to be sold for conversion to flats not long after; and several schools for children with emotional and behavioural difficulties which while offering positive care during term time sent their pupils home in the holidays. It became increasingly clear that local authority secure units offered by far the best model; but Clarke had ruled out children subject to an STO serving their sentence in them.

One of our visits was made with a junior Minister, Michael Jack, to St Charles Youth Treatment Centre. The former Approved School in Essex had been converted into a specialist adolescent unit run directly by DH to fill a perceived gap in provision in the wake of a notorious murder committed by a 10 year old girl in 1968. On the way into the car park, Jack’s Special Adviser expressed the view that the staff must be paid too much because of the quality of their cars.

On the way back to Queen Anne’s Gate, Jack said he wished that we had seen all these places before the announcement of the new STCs, rather than afterwards.

 This is the first of three blogs about STCs: Next month’s will look at how the Centres got off the ground and their track record.

Earlier Release for Prisoners

 

Letting prisoners out early is not something you’d associate with Justice Secretary Dominic Raab. But lack of prison space seems to have forced him to extend by six weeks the period eligible offenders can serve their sentence at home monitored via an electronic tag.  The Criminal Justice Act 2003 (Home Detention Curfew) Order 2023, assuming MPs approve it, will raise the maximum length of the Home Detention Curfew (HDC) period from 135 to 180 days. Prisons Minister Damian Hinds told the Justice Committee in a letter that   "this is a common-sense approach to managing the sentence for a cohort of offenders serving shorter, standard determinate sentences for less serious offences."

When it was first introduced in 1999, prisoners could spend up to 60 days on HDC, a limit which has been raised twice since. The first Johnson government took steps to raise it again in 2019, but abandoned the process for obtaining parliamentary approval shortly before the last General Election. Hinds says this was done "so that we could focus on the proposals in our Sentencing White Paper for tackling serious violent and sexual offenders." Presumably letting prisoners out sooner was seen to sit uncomfortably with the Conservative manifesto promise of tougher sentencing for criminals. But Hinds says "the timing is now right to make this change," emphasising that "there should be no doubt that when it comes to managing offenders, protecting the public will always be our primary concern".

Although Hinds' letter doesn't mention it, it's almost certain that it is rising prison numbers that have prompted the extension of HDC. Population pressures have already forced ministers to authorise the use of police cells to accommodate prisoners. As the top official in the Ministry of Justice told MPs last month, on prison places, "we are working through with Ministers all options to manage down demand and maximise supply". This looks like one of the results.   

The MoJ say that this time round tighter eligibility criteria and improved assessment will in fact reduce the number of prisoners released on HDC. But those who are freed early will be able to come out up to 45 days sooner than at present. The net impact of the changes is forecast to be a reduction of between 400 and 600 in demand for prison places. 

In fact, no legal amendments are being made to the eligibility requirements or suitability criteria. Prison service policy will however be changed so that people serving a sentence for 11 offences linked to domestic abuse, including harassment and stalking, will be presumed unsuitable for HDC. I would expect Parliament's Joint Committee on Statutory Instruments to probe the reasons for, and likely impact of these changes if and when they consider them.

The purported objective of longer HDC periods is to enable prisoners to manage better their transition into the community on release from custody. The policy won't save money as increased costs for tagging, probation and community accommodation will dwarf marginal savings to the prison budget. But as the Impact Assessment on the policy says, it “may contribute to making prisons safer places for both prisoners and staff, by delivering a modest reduction in prison population thereby enabling staff to be better placed to work with prisoners”.

As such it’s a welcome move which will give prisons a much needed breathing space when the change is made in June. In the meantime, the Prison Service has introduced Gold Command arrangements for dealing with the capacity crisis, meaning a senior governor in HQ will make decisions about where prisoners should go. At the end of January, the population in two prisons in the North West, Liverpool and Preston, exceeded operational capacity- that is the total number of prisoners that an establishment can hold taking into account control, security and the proper operation of the planned regime. 

The Criminal Justice System Strategic Command (CJSSC) is also "standing up their operation" in recognition of the circumstances facing the prisons. This is the body set up in 2020 to coordinate the response to the pandemic.  That it is needed once again suggests the depth of the challenge facing criminal justice now. 

 

Out of Court, Out of Favour?

 

It’s encouraging to see a renewed focus on dealing with low harm crime out of court, at a well-attended Diversion Summit in London today and in the latest Transform Justice Podcast. Lots of evidence shows that well implemented arrangements for offering community resolutions, cautions and deferred prosecutions can offer a swifter, more certain and more effective response to offending than processing cases in the courts- and one which can be more satisfying for victims.

But the use of these options has fallen to a greater extent over the last ten years than has charging. As Chief Inspector of Police Andy Cooke told the Summit, diversion is essential and the police could use it more, and more consistently. There’s huge variation between Police Force areas in the extent to which out of court disposals (OOCD) are used for children and adults.

Part of the problem is the politics – OOCDs sound like a soft option- but on this as with sentencing, the public and victims are not necessarily as punitive as the politicians suppose-  or perhaps would like them to be.  

Another challenge is the way police performance is assessed. The Summit heard very promising results from a trial of deferred prosecution in London about which Met chiefs are wary. Why?  Because however good the results in terms of compliance and re-offending, Home Office counting rules don’t recognise the measure as a positive outcome in terms of clearing up crime. It’s puzzling if what Cooke called a “ridiculous bureaucracy” is discouraging the roll out of 'interventions before pleas' as recommended by David Lammy’s review of racial disparities five years ago.

A third barrier is a police culture in which charging is the default option and the effort involved in setting up and monitoring rehabilitation measures puts officers off doing it. Several forces have developed elaborate and properly resourced programmes and partnerships to screen eligible offenders, match them to the interventions they need and track their progress. 

The summit heard about how a technological platform developed by social enterprise Make Time Count can make these tasks less time consuming although I’d have thought that some candidates for diversion – particularly young people with low levels of trust in the authorities- may have reservations about downloading a police app on their phone. More fundamental perhaps is the issue of what types and intensity of interventions should be available, how they should be determined in individual cases and who provides and pays for them.  Effective diversion may save the system money but there needs to be significant front loading of funds to get it off the ground.

A recent report by the Magistrates Association  claimed the “patchwork of implementation and monitoring of OOCDs has led to a troubling overlap between the powers of the police and the sentencing powers of magistrates’ courts.” While this may be overstating it, there's a wide range of diversion practice in place. This may be reduced somewhat when a national scheme for community resolutions and cautions is introduced this year or next. But questions will remain about what kinds of offender and offence should be dealt with out of court.

In particular, should repeat offenders qualify for a diversion option? Proponents of desistance theory would not want to rule it out and a scheme of rigid escalation into court is not likely to produce the best results. 

Police decisions are made with reference to a gravity matrix which aims to ensure that the most serious offending goes to court and the least serious kept out. There may be a need for Police Chiefs  to consult on the appropriateness of their current guidance in the matrix for the cases in between – in the way that the Sentencing Council consults on its guidelines . Minimum standards for the Scrutiny Panels which provide oversight to local diversion arrangements might also be needed. 

Those changes should help to win over the sceptics and ensure diversion can play the more central role in responding to crime which the evidence suggests it should do.