Why Don't We Recommend Custody?

Because basically 'probation' recommending custody is an oxymoron.

It never used to happen, but sadly I am aware it does increasingly nowadays and thus further serves to demonstrate the gulf between the old and new style officer. A colleague writing in connection to this issue on the Magistrates blog put the issue succinctly by stating "To propose custody is a failure on the part of the PO and the Service". I agree entirely and there are basically two reasons why we don't.

The first is to do with stating the blindingly-obvious. For example, when preparing a PSR for Crown Court on an armed robbery it would be unwise in my view to conclude with anything else other than an acknowledgment that "custody is clearly inevitable". Indeed I have written those or similar words many times myself. To do otherwise would make the author look ridiculous in the eyes of the court, but it is not the same as proposing custody. Can you imagine how a Crown Court judge would view a proposal for custody in such a case? I can assure you that they do not take kindly to being treated like grannies and told how to suck eggs. A judge knows perfectly well what powers are available and what the appropriate sentence is going to be. The process is considerably more subtle than that.

The second reason is more contentious but lies at the very core of what the job of a probation officer entails. It's basically where their training and experience comes into play in placing before the sentencers a soundly-reasoned argument for a particular course of action that will encompass a degree of punishment, but also a disposal that encourages rehabilitation. It is absolutely vital that the report tries to be measured and balanced, even in relation to the most seemingly 'lost' causes. Of course it's difficult and often a challenge, but that is precisely why society pays us to take on the hard cases as well as the easy ones. To put it bluntly, I have to say that in my view any report that reads as a counsel of despair, offers the court no positive options and concludes with a spirited plea for custody, says more about the author than it does about the defendant.

There was a time, not long ago, when such a report would not have passed 'gatekeeping' either by more experienced colleagues or by management. If nothing else, it shows signs of sloppy, lazy practice and a strong indication of the wrong mindset for this line of work. Regrettably I have to say I have come across this sort of thing when colleagues want 'shot' of a case for a period because someone is 'hard work'. Yes of course I know 'they were given a chance' last time and the time before, but for some people change proves much more difficult, for instance due to a drug addiction. It is completely unprofessional in my view to write such people off with a proposal for custody which we all know will invariably make matters worse.

As it happens there is a good example of what I'm talking about here in a report from 'This is Exeter' and highlighted by the Justice of the Peace blog. In this case the sentencing bench felt able to go along with the recommendations of an 'experienced' probation officer by suspending imprisonment on a 'prolific offender' and noted that the report 'did not write him off.'  In essence the issue is not one of semantics, but rather fundamental philosophy and attitude towards the job. 

As with all 'rules' there are exceptions. I have previously admitted to not just proposing custody in a certain case, but to effectively engineering it as well in the instance of a sex offender in denial. I have also prepared quite a few reports in cases where the client feels unable to cope with the demands of a community disposal and either requests or sometimes begs for a report that results in custody. In all such cases I have been 'upfront' with the court and ensure they are fully aware of the clients reasoning in making such a request. I still don't 'recommend' custody though, but rather acknowledge that there would appear to be limited scope for an alternative given the clients ambivalence or antipathy towards a community disposal.