Saturday, 29 November 2014

Court Report

Further news about Napo's legal challenge is contained in the latest blog from Ian Lawrence:-
A good day at Court
It was a highly dramatic and tension filled day at the high Court on Wednesday. Yvonne Pattison and I attended the disclosure hearing along with our legal team, while the National Executive Committee met a few miles away with Chris Winters in charge all waiting anxiously for breaking news.
You will by now have seen the update that we published yesterday and all of your Officers and Officials share your frustration that we cannot be as fulsome with our reporting as we would all wish, due to the complex legal restrictions that we and the defendants are bound by.
It's now in the public arena that the adjudication on disclosure went in our favour on our requests for some key documentation on Transforming Rehabilitation that we have been seeking sight of in order to better inform our case. Mr Justice Irwin was clearly more impressed by the submissions on behalf of Napo from Helen Mountfield QC aided by Chris Buttler, than he was by the defendants claims that our disclosure submission should be struck out in its entirety as (in their view) it was not in the public interest, and because it was (again in their view) entirely politically motivated.
This latest setback for the Secretary of State (which we gather he is not taking too well) could have been avoided a long time ago of course. It would have been altogether easier for all parties had the Government adopted a more reasonable approach to the issue of what ought to be transparent when a reform of such major importance is being pushed through at such speed.
I accept that this can only give you all a mere flavour of the exchanges that have taken place so far in and out of the Court. Nevertheless, I hope it demonstrates why Napo has been so determined to secure what we need to allow those who will decide the outcome of the JR application every opportunity to do so with the full details in front of them.
A good day then for Napo members, and indeed a good week; but still some tough ones await us and will include masses of hard work and lots of long hours as we pore over the disclosures that we expect to arrive by close of play, and those that will follow next week.
It's not often I am short of a word or two but as I close this posting I cannot adequately describe how proud I am to stand shoulder to shoulder with you all in this huge struggle. Your support, including the fantastic messages of encouragement we are regularly receiving, is giving us all the strength to see this through.
Ian Lawrence
I have no idea if the General Secretary still paces the floor at Chivalry Road demanding to know the identity of the author of this blog, but regular readers will be aware that it has not been an entirely harmonious relationship with Napo and it will have to be left to historians to decide if it's existence has been ultimately helpful or not in the fight against TR. 

It should go without saying that I'm absolutely delighted to see a case being prosecuted through the courts at long last and would make this point - maybe it's time those who somewhat understandably became disillusioned with Napo in recent months reconsidered their position and re-joined. 

There was much talk and some enthusiasm at one time for a 'fighting fund' being set up in support of a legal challenge, but it came to nothing. It strikes me that there could be no better way of demonstrating support than filling out an application form. Just a thought.

The Guardian has grim news regarding criminal legal aid:- 
Legal aid contracts for on-call criminal solicitors to be slashed by two-thirds
On-call, duty contracts for criminal solicitors to attend police stations and courts will be slashed from 1,600 to 527 in England and Wales, the Ministry of Justice has confirmed. The announcement that ministers intend to go ahead with restructuring the profession, despite being defeated in a judicial review of the initial consultation, was greeted with dismay by solicitors.
Fresh invitations to tenders for the new contracts have been sent out by the Legal Aid Agency in the expectation that the criminal law market will be forced to undergo a process of merger and consolidation. Savings will be made, the LAA believes, by solicitors’ firms combining to make economies of scale to compensate for 17.5% cuts in fees being introduced in criminal cases.
Responding to the news, Andrew Caplen, president of the Law Society, said: “We are extremely disappointed with this announcement. In our view the scheme fails to meet the ministry’s own objectives of ensuring that criminal legal aid must be sustainable with enough solicitors doing criminal duty work. “Some areas of the country could be left with no legal representation for anyone accused of a crime, depriving vulnerable members of the public from access to justice. We are very concerned that the ministry has not taken into account the views of the overwhelming majority of our members who responded to the consultation, or to the independent consultants who raised concerns about the economic impact on the supplier base.”
Jon Black, president of the London Criminal Courts Solicitors’ Association, said: “This is a really depressing day. The MoJ has shown that it’s hell-bent on forcing through these cuts whatever the warnings, whatever the price to society and justice. “Civil courts are imploding under the strain of legal aid cuts. The criminal courts are going the same way. By the time the public is really aware of the effects of this attack on our criminal justice, it will be too late,” he said.
“This carve-up of solicitor contracts in police stations and magistrates’ courts, combined with yet more cuts will cause terrible collateral damage. A fair defence for those who aren’t wealthy will become a lottery. As firms start to close or cut corners to keep afloat we’ll see plummeting standards of defence and miscarriages of justice. It would seem that the government is unconcerned by this. But no one should be hoodwinked, it’s too high a price to pay.”
Again from the Guardian, another judge speaks out:-
Appeal court judge ‘horrified’ at number of litigants without lawyers
 A court of appeal judge has said she is “horrified” at the number of unrepresented litigants and warned that the delays caused will “clog up” the justice system. Dame Elizabeth Gloster’s forthright comments were delivered at the launch of a report that exposed low morale within the legal profession and found that 83% of lawyers believe justice is no longer accessible to all. 
The study, by the law firm Hodge Jones & Allen, interviewed more than 500 senior solicitors and barristers, concluding that nearly two-thirds (61%) fear there is little trust in the fairness of the judicial process. Entitled Innovation in Law, the report assessed changes brought about mainly through the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) – which sliced £350m a year out of the civil legal aid budget – and considered ways in which the system might be improved. 
More than 80% of the lawyers said the situation was worse than five years ago, 87% believed that wealth is a more important factor in access to justice than it previously was and 79% said increases in court fees were making it harder for people to bring cases. As many as 69% of the lawyers questioned said they would not recommend the legal profession as a career.
And another reported in the Mirror:- 
Brutal Coalition cuts are putting justice at risk, claims top judge
A top judge has slammed the Coalition for putting justice at risk with its brutal programme of cuts. Judge Gordon Risius said “almost every part of the system” has been damaged by cuts to legal aid, the Crown Prosecution Service and probation. And he tore into the “almost daily” problems caused by private contractors failing to provide enough dock officers to guard defendants.
Judge Risius, who retires as the top judge at Oxford Crown Court in a few months, raged: “The rule of law and the criminal justice system is very much under threat.”
Courts continue to close, despite well-argued campaigns to save them. This from the Spalding Guardian:-  
Court closed after consultation sham
Lord Chancellor Chris Grayling closed Spalding Magistrates’ Court on Tuesday following a public consultation that was branded a “sham”. The court was de-listed on December 19 – with all work sent to other courts – but the official closure is the final death blow.
Criminal Defence Associates Lawyer Rachel Stevens said the Lord Chancellor was only interested in achieving the outcome that suited the civil service. Speaking on Tuesday, Miss Stevens said: “The consultation process has been a complete sham and a waste of time. “The reasons given today for the decision to close the court are, verbatim, the arguments put forward by the court service when they asked for representations.
Finally, I continually hear depressing news regarding increasing numbers of judges who are willing to sentence for quite serious matters without the need for full probation reports. The Recorder of a major northern city apparently feels there's no problem and it's much quicker and cheaper to weigh off a manslaughter charge on an FDR. It's so short-sighted and unprofessional. I cannot help but wonder if we've been wasting our time over the years and if they ever really understood the purpose of a full PSR.......     

46 comments:

  1. Good morning Jim, mnnnnn I share your concerns vis a vis full PSR and wonder where we are going with this trend - I was passing through a Court last week and was told that the Judge is now sentencing without ANY report!

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    1. It's quite clear where it is going...removal of reports altogether. It was proposed a long time ago and is not far off being implemented. The removal of legal representation and then the pre sentence report ...all part of plan..the rise of the rich and the punishment of the poor .

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    2. I must say it's hard to argue against this view and analysis. I always felt probation was there to help even things out a bit and get alongside the underdogs of this world. A very un-TR view I know and a reminder why I think there's still quite a job to do in explaining what proper probation is all about.

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    3. I'm not so worried about FDRs as long as they are done on an adjournment if fact I have seen some better more detailed FDRs than full reports. It's the oral reports based on short interview with defendant in court with limited CPS papers & no Childrens services or police checks. Someone the other day said that DV was the fualt line running through TR & I couldn't agree more yet some courts are requesting & getting oral reports in DV cases. This so, so wrong & colleagues in NPS should be refusing to do them in any case where there is a victim at risk of harm.

      Under TR unless checks are done or diversity factors such as mental health or learning disabilities are picked up at PSR stage the chances are they never will by CRC. And the reality is that in an interview in court, generally under 30 mins, checks won't be made & diversity won't be explored.

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    4. "unless checks are done or diversity factors such as mental health or learning disabilities are picked up at PSR stage the chances are they never will by CRC"

      A little bit harsh on those of us in CRCs!! We're still perfectly competent members of staff, you know...

      I would agree that failure to pick things up at PSR stage makes life for supervising officers significantly more difficult, however. We are getting an increasing number of cases through with reports that have significant gaps in them, many of which are resulting in wholly unsuitable orders being made.

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    5. Sorry I didn't mean to infer that CRC colleagues weren't up to the job far from it! My concern is in the point you make about inappropriate orders being made such a someone with a learning disability being placed on a group or domestic abuser simply being given stand alone UPW with no opportunity to address offending behaviour. Also I am well aware that some of the new CRC will push to have service users pushed off to voluntary sector or for ruductions in reporting requirements to reduce costs & Max profits. If diversity issues aren't flagged up at PSR it makes it more likely the incorrect order will be made or leave the CRC, at best, playing catch up.

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    6. The crc will be playing catch up anyway due to the sheer volume of cases.

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  2. for cases where custody's inevitable I've always scratched my head at wondering what the point of a 3 week adjournment was apart from giving Judge background information on the defendant and background on the circumstances surrounding the offence. I always thought that we were duplicating the defence barristers work. So, I can see the point of these types of cases not having a report. With regards to FDRs on all other cases I'd say is hit and miss, i'm coming across a lot of 'skeleton tickbox' type ones and to me they're a bit pointless. I also cant help but compare a court PO/PSO role vs a casecarrying one and sigh at the injustice of pay because i'd love to earn what court officers do when you think of how little they appear to do.

    Just touching on the Guardian article above discussing legal aid, I am wondering what the point of going for JR is when the outcome can just be ignored by SoS? I know it will prove he went ahead and that TR is unsafe but actually what concrete difference will it make to privatisation apart from hopefully make preferred bidders maybe think twice?

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    1. One of the points this writer makes really makes my blood boil; talking about court officers and 'how little they appear to do'. Divide and rule has been the management ethos for years. Shame on you for encouraging it.

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    2. I have done both roles and I know I would much rather have my current job in the field than go back into a court team. Court work can be very intense and you often take the brunt of criticism when someone else hasn't done their job properly (or the resources just weren't there). There's also a huge amount of work that gets done which isn't obvious to those outside.

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    3. I have been a Court Officer in a Magistrates Court and it was both enjoyable and challenging. But then I've always worn a tie since day one and know the value of just turning up and being prepared to offer an intervention in person both at Crown and Mags. It can make a big difference.

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    4. The point if psrs when custody is inevitable is to help determine the length of sentence. Amazed you do not seem to grasp this.

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    5. Of course, but it's one factor of many.

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  3. Surely the essential point of the full PSR is to bring a probation officer's expertise and analysis to the party, and which gives perspectives which invariably the defence solicitor and barrister will not have picked up on. I've lost count of the times I've had to lead them by the hand and point out factors they've missed that could be used as mitigation for example. Learning Disability is something that often gets missed in my experience, and mental health issues.

    Then there's the role the report plays in informing the prison and subsequent probation staff about the person in order to assist sentence planning. Finally, as you say, information regarding the offence and helping to put that into the context of the person and the reasons for the offence commission.

    The trouble is a lot of this was clearly far too nuanced for judges who seem have got it into their head that the PSR was a defence document designed to try and argue against custody and therefore wasn't necessary if custody was going to be inevitable.

    And before anyone says what about OASys - you know my views on that pile of useless crap!

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    1. anyone else recall the proposal to use Oasys assessments in the pre sentence process instead of reports ?

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    2. This comment is only referring to inevitable custodial sentences:

      all I can think of is that defence reps don't pick up on things then that is not Probations problem and like you said we're not here to mitigate for them. Why are we doing their job? The judges have sentencing guidelines so again, no reason for Probation to get involved in that and I had a short intake of breath when you suggested that the PSR could be of benefit to prison staff for sentence planning - there are OMs inside who should be doing that - why should a field team OM or court PO write a report to help inform sentence planning when the person is going to be sitting in prison for +12mths, prison should be doing it surely? The courts is one area I do think Probation could be a bit leaner staff wise and I appreciate i'm probably in the minority with this.

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    3. PSRs - the most important document in the world of probation. That was how I was introduced to report writing in 1992. My apprenticeship In the profession began as a Probation Officer's assistant. One of my earliest tasks was to read every report prepared for the court on my MPSO (money payment supervision order) duty days. Later I was asked to help with the gatekeeping of Crown Court reports (as proofreader). Those experiences ensured my depth of knowledge. When I trained, sponsored by the Home Office, report writing skills were revered and central to the role, i.e psr, parole, deferred sentence, etc. Judges AND magistrates (lay & stipendiary) read and acknowledged the contents of reports. Often I was asked to attend to speak to a report in both court settings, being quizzed in open court by judges about my proposals on numerous occasions as they worked towards their decisions. Equally I could find myself in chambers with a judge & both barristers, being offered a cup of tea & being asked to explain my thinking for a particularly radical or uncommon proposal.

      Those were the days when probation officers were respected professionals. Sadly those days are long gone.

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    4. "Why are we doing other peoples jobs?" It's a good question, but I've been doing just that ever since I started out as a green probation student on a practice placement! I've always seen my job as a PO as applying sticking plaster to try and repair damage and failings everywhere, for the benefit of clients and on behalf of the state. A sort of catchall service of last resort.

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    5. Anon 10:17 I agree entirely! If those days really have gone - and this blog is as much about refusing to accept this as anything - then the job is truly finished.

      But I know that we haven't reached that point yet and certainly not whilst there are still officers around who have experience of an earlier era. But time is clearly against us and this blog will hopefully carry on serving as both an educator and ultimately a record of what was lost for some time yet.

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    6. The point about a P-SR is that if done well it captures the situation before the defendant's uncertainty is removed by the sentencing decision and especially the details - length - financial orders - conditions of supervision. And not just the defendant's attitude but that of those closest to him and sometimes the wider supports, such as an employer.

      In some cases it will make not a jot of difference to a sentence - but it might identify some feature that is immediately relevant post sentence, such as the practical - elderly parent needing to have care provision, dog, children and more. Then there are psychiatric situations, it maybe that there are grounds for a forensic psychiatric report that are not obvious but make all the difference in the long run. Then there are the things like vulnerability to suicide so that immediate steps can be taken to alert those who can minimise the risk.

      Then, of just as a great a value is the immediate post sentence interview - the attitude on first discovering the actual sentence and the difference between the attitude when the situation was uncertain, of defendant and those closest.

      It maybe rare to get good opportunity to do it all but when it happens it can be vital to the relationship between the client and the whole probation service and especially the one to one relationship.

      That stuff is MOST relevant in custody cases when parole is under consideration.

      That some have posted here that it is unnecessary is sadly revealing about the style of probation now practiced and accepted as good enough in some places. I suspect the deterioration in this aspect of the work is partly responsible for the increased suicide numbers in prison I stress partly - other things are always more relevant, because if a probation worker did not detect a high risk, somewhere else in the chain of reception someone should have had the opportunity to tease out a higher suicide risk - if they interview properly - hopefully the old - 'you're not thinking of doing anything silly' type questions - that I heard when working in a prison are no longer asked?

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    7. Andrew I was nodding all the way through reading through this. You are right. I trained in 2005 through DipPS route which is much later than a lot of my colleagues. But reading through some of the other comments today about not needing PSRs it leaves me wondering have things really changed so much in the last 10 years? I'm feeling very old. And sad.

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  4. Posted on behalf of a third party:-

    "Change of direction, NPS areas are being transferred to the NPS IT Support line, what a disaster. They cannot give any idea when someone will be able to deal with your query. Is there no Service Level Agreement which states a response within 2/4/6 hours? Colleagues have been unable to access their systems for half/full days adding to the stress we are all under. I feel for IT colleagues in CRC they must recognise their work has dropped dramatically not very reassuring. If My Services is anything to go by we are in for a rocky time. No doubt Secretary of State will confirm there is no problem."

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  5. I agree with much of what you say on the PSR issue, Jim. Standard PSRs are incredibly important for more serious offences, and certainly for complex offenders, and over the years I have spent much time liaising with relevant partners in order to produce a thorough and comprehensive report. I always explained to offenders that the report aimed to be objective, and was intended to assist the Court in the sentencing exercise. Unfortunately, many report writers have tended to argue unrealistically against custody in the proposal, hence the perception amongst many players in the court process that the PSR is a second tier defence.

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  6. Arguing against custody is politically (small P) sensitive but we have to remember that, particularly in magistrates court, custodial sentences are short and more destructive than rehabilitative. I have worked in a prison and, if I learned one thing, it was the futility of short sentences. Arguing against them is arguing against the failure of the state to provide meaningful rehabilitation in a custodial setting for more than a tiny percentage of the 85,000+ people who are incarcerated. I think that is worth a three week adjournment.

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  7. Anon 10:17, was mainly referring to Crown Court cases, but there are cases going through Magistrates Courts that can frustrate. If an offender perpetually breaches community sentences, and continues to offend, what is the merit of proposing another community sentence when there is little capacity or interest in complying? Agree about futility with many short sentences, but sometimes they can - if only to allow access to structure, food, prescribing and brief interventions.

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    1. The assumption made is that all reports were arguments against custody. Some of the best & more complex reports I ever read were acknowledments that jail was all but inevitable, nevertheless offered several pages of insight, observation & suggestion as to how that jail term might usefully be spent - I think its now labelled 'sentence planning' - with ideas as to what might happen post-jail. Nothing new under the sun, its now been fragmented into a series of computer based codes and tickboxes designed by logarithms & formulae & 1s & 0s. Regards, anon10:17.

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    2. The guidance was to offer the Courts alternatives to custody,not to argue against custody, particularly if custody was inevitable. The report content was to provide objective analysis and offer suggestions towards the possibility and viability of reducing the risk of continued offending. The report was read by the person it concerned, consequently the content could and did have considerable impact on their response and subsequent ' engagement 'with the sentence.
      Now many reports are subjective, ridden with all the negatives the interviewer could ' identify ' from the interview. Every possible ' risk' extrapolated, every ' deficit ' highlighted. Proportionate sentencing proposals an apparent mystery

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  8. I had the impression from an anon comment in a recent post that to current court staff their role was about second guessing what Mags might be thinking and making proposals accordingly. Is there no challenging of Mags thinking nowadays and getting sentences down tariff ? as an old dinasoar PSR writing was the best part of the job for me. Of course you have to acknowledge cases where custody is likely, but a good report can often affect length of sentence, or on occasion lead to a judge taking a chance on a non custodial disposal. Good , persuasive report writing seems to be an increasingly lost art.















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  9. Grayling will push TR through regardless of the JR. The Rule of Law is under threat and we know that the law will serve only the interests of the rich. We have witnessed the creation of a fascist state, we need to acknowledge this and start to organise to destroy it. Some may think this is a little melodramatic and that I'm over-egging the situation.

    Every section of society is under threat, the cuts are now staring to bite and people are dying. However regardless of the consequences for people and the planet they push on with their short sighted greedy plan. Today in many nations people are protesting on mass in the streets, it's kept off our TV lest we get ideas. Our world of Probation is a bellwether to the wider demise of democracy.They don't listen any more because they simply do not care, we are all plebs to them.

    papa

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    1. Papa,

      As a regular contributor with a particular take on things, can I entice you to pen a guest blog? Netnipper - where are you? Can I make the same offer?

      During this interregnum, it's difficult to fill the pages each day and guest blogs always get a high readership.

      Get in touch and let me know. The offer is there for anyone and it might put a bit of sparkle into the blog before Christmas. The subject need not be probation or even CJS-related.

      Cheers,

      Jim

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    2. You can reuse that if you think it is of any interest: -

      http://reformingprisons.blogspot.co.uk/2014/11/up-and-down-what-can-be-done-to-halt.html?showComment=1417262754049#c6533771353083936777

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    3. Jim, I have been making contributions, lately anonymously, as with some devices it seems easier, especially when you can input numbers rather than letters in the CAPTCHA. You are a fair-minded host who invariably treats the guest as God. I can only imagine the effort and energy required to maintain a daily blog. I also cannot imagine how the last couple of years would have been reported without this blog which has become the authentic voice of probation – and that's primarily because its voice emanates from the grassroots – bypassing the filtering and hierarchical structures that like to filter information and comment – so that the 'establishment' view can prevail. As Alexis Sayle, noted in a newspaper today: 'Tyranny is the removal of nuance.' And that was in the context of Strictly Come Dancing, not Grayling's consultation paradigm!

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    4. So true. Without this blog we would have been completely lost in this chaos called TR

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    5. Netnipper and AnarchistPO - thanks very much indeed for those kind words. The blog obviously takes up a lot of my time, but it's bloody good fun and would be nothing without readers and contributors. So, by organic growth, it seems as if we've found a bottom-up, useful and symbiotic partnership that seems to work. And that of course rather neatly sums up why I was so attracted to this job in the first place - ideas and practice are so much better when allowed to evolve, rather than imposed from above......

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    6. Jim, how about 12 days of chrsitmas guest blogs...!!

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    7. Excellent idea - one promised already - another eleven needed!

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    8. Better get typing then
      Anon ex-SPO No 2

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  10. Nothing more certain that the JR evidence will highlight to Grayling and bidders that SPO's and ACO's have failed and will have to be removed quickly if we are to protect the public

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    1. What makes you think this?

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  11. Thank you 11.11.....you expressed exactly what I was thinking....Bobbyjoe

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  12. The value of this blog is immeasurable - thank you Jim & contributors. I no longer feel alone in my bubble of pre-history; it certainly feels like NOMS & co have worked really hard at re-writing the history of probation service provision & what it means. In the style of Huxley (BNW was set in 638 A.F, i.e. After Ford), it feels increasingly like the clones controlled by the World State are here, and we're living in the year 13 A.N, i.e. After NOMS. Unfortunately (fortunately in my view) the process has failed to affect some of us.
    Kind regards, Bernard.M.

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    1. Thanks Bernard M. The thing is this blog has been going for over four years and I'm sure most readers can't be bothered to search back to the early days and stuff I wrote about practice.

      I've been really surprised by the reaction and debate about PSR's and their role and it makes me realise there is probably a need to repeat some of the stuff from the early days.

      It's been such an interesting debate that I'll do a 'special' on court reports some time next week.

      Cheers,

      Jim

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    2. Please do Jim. I look forward to it.

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  13. male with mental age of 8 sentenced to Supervision and ASAR requirement (alcohol module) - sentenced via FDR - should be interesting!!!!

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