Wednesday 22 September 2010

To Breach or not to Breach?

As always I like to try and put things into an historical context. In the days when a Probation Order was not a punishment but an alternative to a sentence and the defendant had to give consent, breaching was not that common at all. But then you have to appreciate that at that time each probation officer pretty well had complete discretion in deciding the frequency of reporting and home visits were much more common than nowadays. A Probation Order was viewed as an opportunity for an individual to prove that they could sort their life out with the assistance, support and guidance of a probation officer and in the process avoid offending. In practice what this meant was that clients who had a settled home, found employment and were emotionally stable did not need to report often and in fact quite a few were returned to court for early discharge. We had to prosecute our own breaches and it was rare for the client not to plead guilty and typically were not legally represented. Possibly surprising to many nowadays, breach was seen by all as a positive process. A gentle reminder that invariably resulted in either NFA (no further action) or a £10 fine.  

Looking back now, whilst the flexibility in reporting requirements in the 70's and 80's allowed time for the chronic cases, (many of whom would visit the office almost daily) and the high risk cases, it helped sow the seeds of our downfall when politicians started getting involved and criminal justice policy became just another political football. I think up to that time there was cross-party agreement that criminal justice policy was best left to the professionals. It seems incredible now, but the Home Office in those days was quite liberal and funded some excellent research and experimental practice. But things began to change and the punitive and prescriptive treatment of probation began. For some reason the policy makers chose to ignore the ethos and philosophy that hitherto had underpinned our work and thus we were set on the path of probation as punishment and National Standards replaced 'guidance' and best practice manuals. 

Of course within this context the whole issue of breaching became much more common and the natural outcome of reducing the probation officers degree of discretion. On top of this there was the cultural shift within the service away from the old philosophy of 'advise, assist and befriend' to one of punish, monitor and enforce. The service began to positively discourage taking on 'welfare' cases at all and unqualified Probation Services Officers took over supervision of all but the most high risk cases. Of course we still had many chaotic clients on the books, typically addicted to one or other mind-altering substances, but under a punitive punishment regime, failing to report inevitably led to widespread breaching. But here the probation service found itself in a double bind - although breaching demonstrated to our political masters that Court Orders were being rigorously enforced, it also demonstrated that we were somehow failing, not a satisfactory position to be in politically or publicly . 

This realisation, together with an exponential rise in the prison population and a strong 'nudge' from government in the form of a financial inducement, led to the focus shifting a few years ago to that of compliance - the flip side of breaching of course. If a huge amount of effort was put into getting clients to turn up on time, it would be viewed positively all round. So, as a result, we have gone down some very imaginative and creative routes in order to increase compliance rates, (such as text reminders) or at least the appearance of an improvement. I guess readers will know what that's code for. A bit of 'creative' accounting; some adjustment of recording; possibly a bit of flexibility or understanding of a clients current difficult situation; some sympathy even, anything other than just banging-in another breach and hoping to get rid of a difficult case. As a CDO I was particularly encouraged to see some officers, rather than breaching, were daring to take some orders back to court with a suggestion for revocation and re-sentencing when it was becoming clear that the original order was probably too onerous or was proving impractical for one reason or another.  

I think the tide has turned to some degree and the alacrity with which we embraced breaching  in recent years is now subsiding a little. In my view this can only be to the good, firstly because we should be trying to make difficult situations better for clients, not worse and secondly in my experience we are not that good at breaching. I remember how depressed I got when as a CDO I was presented with some very 'iffy' breaches to prosecute. Clients would routinely plead not guilty and although I'm no lawyer, even I could see a trial would be very unwise. I had no compunction in either unilaterally withdrawing breaches or excising whole chunks from prosecution statements in order to encourage a guilty plea and before defence solicitors were given the opportunity of making the Service look very foolish. I don't recall any comeback from management.  As for my breaching policy, I bend over backwards not to - the paperwork is something I can do without - but inevitably with high risk cases some have to go back to court if my usual powers of persuasion fall on deaf ears.  

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