When Is a PSR Not a PSR?

The subject of PSR's has been bothering me for some time and recent exchanges on twitter makes me feel the topic requires airing again:- 

"Question arising from research we currently doing. How common is it in Mags Ct for defendant to be sentenced to custody without a PSR?" Penelope Gibbs

"I’m a MC Legal Adviser. It has never happened in my court." LA

"A PSR used to be written by a qualified PO with a decent adjournment. Oral reports on the day by unqualified staff are not PSR's in my view." Jim Brown

"We have a very competent team. Their oral reports are always quite thorough." LA

Colleagues will be only too well aware that the responses from the Legal Adviser are somewhat disingenuous as opinions relating to 'competance' and 'thorough' are likely to vary considerably between those viewing things from differing professions. As we all know, qualified Probation Officers have all but disappeared from most courts and I've personally witnessed former G4S Unpaid Work prosecution staff now metamorphosed into PSO's and supposedly delivering 'PSRs'. It's a travesty that has gone pretty much unchallenged and on which I note the Probation Institute has remained mute. Just to be clear, on-the-day 'PSRs' by unqualified staff are utterly worthless and a travesty visited upon a once world class profession. 

As with most things, how we got to the situation where an absolutely key element of the Criminal Justice System has been devalued to the extent it has are many and varied. OASys certainly played its part, but the main blame can be put at the foot of the Judiciary and in particular former Judge Leveson who basically felt PSR's were a hindrance to the smooth running of justice. Here's a reminder from his 2015 report on the efficiency of criminal proceedings:-        

6.7 Listing cases for a sentence hearing

152. Contributions from practitioners and figures produced by the TSJ programme have led me to conclude that time and resources are frequently being wasted as a consequence of the practice of adjourning the sentencing hearing so that the Probation Service can prepare a pre-sentence report (‘PSR’) for cases that do not require a PSR or when an oral report would suffice.

153. Sections 156 to 158 of the Criminal Justice Act 2003 (as amended) set out the procedural requirements for imposing community sentences and discretionary custodial sentences. The relevant provisions as regards obtaining a PSR are broadly couched in mandatory terms that require the Judge to obtain and consider a pre-sentence report in these circumstances, although – put broadly – the Judge has the discretion to dispense with this requirement if he considers this step is “unnecessary”. However, in at least one instance the discretion to dispense with a report is circumscribed: for certain offenders who are under 18 a report must be obtained unless there is an existing report or reports.

154. Although greater use can and should be made of the discretion to dispense with reports, and an increased use of oral (“stand down”) or previous reports, consideration should be given to providing Judges with greater flexibility not to order reports. It is at least arguable that the presumption that a report will be obtained should be removed.

155. I note with approval that the practice has developed that when the suitable sentence is considered to be a community order which includes a single requirement that does not necessitate the involvement of probation (e.g. a curfew order), courts often proceed to sentence without the need for a written or oral report. This practice has been endorsed at paragraph 1.1.7 of the Sentencing Council’s document ‘New Sentences: Criminal Justice Act 2003’.

156. For the changes that I propose in this context to be effective, the courts must be staffed by sufficient probation officers to provide oral/stand down reports, thereby removing the need in a significant number of cases for an adjournment. In the circumstances, there should be a reduction in the number of orders that are made for pre-sentence reports (with legislative change considered) and greater consistency in the presence of probation officers at court to ensure that oral and stand down reports can be provided.

--oo00oo--

Rob Allen is clear where a great deal of the blame lies:-

Saturday, 24 January 2015

Pre-Sentence Reports are Essential for Rehabilitation: Why does Leveson want to Reduce their Use?

When I became a member of the new Youth Justice Board in 1998, the top priority was to halve the time from arrest to sentence for persistent juvenile offenders. This had been one of the five pledges made by New Labour before the 1997 election. Millions was spent on management consultants who produced countless plumbing diagrams to show the points in the process where delays could be reduced so that the magic 70 day target could be met before the next election. The consultants must have jumped for joy when they saw that three weeks or more was often used up in adjournments after the young person had been convicted. It took much persuasion to show them that the preparation of a pre-sentence report was not some bureaucratic hurdle that could simply be dispensed with in the interest of efficiency and speed. Rather it was a key to enabling the court to impose a sentence which would be most likely to meet the overarching aim of youth justice - the prevention of offending by young people.

I thought of this experience when I read that Lord Leveson has recommended that the adult courts should ask for fewer pre sentence reports. He writes that “although greater use can and should be made of the discretion to dispense with reports, and an increased use of oral (“stand down”) or previous reports, consideration should be given to providing Judges with greater flexibility not to order reports. It is at least arguable that the presumption that a report will be obtained should be removed.”

This seems particularly foolhardy at the current time. If the rehabilitation revolution is anything more than a slogan , it will require mechanisms through which the courts and other decision-making bodies have access to expert advice about what is needed to help offenders desist from crime. The process of social inquiry , historically the core of report writing, will be more important than ever.

PSR's will also be particularly important after the introduction of supervision after release from short prison terms which is likely to have an impact on the custodial threshold which courts consider before sentencing someone to prison . The additional punitive weight of such sentences should require a higher level of seriousness than at present before they are imposed. Yet many commentators feel that the clang of the prison gate (for as little as two days) followed by up to a year’s supervision will prove attractive to sentencers in a wider range of cases. In this context, pre- sentence reports will assume a greater significance in assisting courts to determine whether individual offenders lose their liberty or can instead undertake a suitable programme of supervision, treatment or reparation in the community.

Allowing courts to dispense with PSR’s may appear to make the system more efficient but it may well be at the expense of effectiveness in terms of rehabilitation and economy because yet more offenders will go to prison. Management consultants might not recognise that but a senior Judge should know better.

Rob Allen 

--oo00oo--

I made my views known at the time and it generated a considerable amount of comment:-

The fuckwits have taken over the asylum. Independent opinion in the courtroom has finally been abolished. A long time ago my probation tutor explained how the SER (aka PSR, SDR, FDR, OR) offered the only true independent assessment of a defendant's position. She pointed out how the sentencers already had the starting point of "guilty"; the Clerk was only there to offer legal guidance to the sentencers; the prosecution were there to secure a guilty plea/verdict at the highest possible level; the defence were acting on the instructions of the guilty party. Beyond that the press wanted the best angle for a story & the public were inevitably biased by virtue of being related to either the perpetrator or victim. Who, therefore, could realistically offer the sentencer an unbiased and truly independent assessment?

Sadly the role of the PSR was systematically undermined by NOMS and a generation of management who hated client contact and hated being in court - the perfect opportunity to build an anti-PSR groundswell of opinion at liaison meetings, in policy documents and in practice. And now they've more or less achieved their objective after 15 years of chipping away. There's patience & determination for you.

*****
The arrogance of these people astounds me, even after 30 years. I have worked in a Crown Court - barristers and solicitors who know absolutely nothing about the person they are supposed to be defending, shitting themselves in case there isn't going to be a PSR, however formulaic it is. Judges who don't actually know what sentences they are legally allowed to impose, whose arrogance knows no bounds and who never give a milliseconds thought to the person they have just sentenced. A plague on all their houses, bunch of arrogant, ignorant tossers.

******
Since I joined the Probation Service some 16 years ago as a TPO and then PO, I've seen POs removed from courts, back in, out again ad infinitem. Having been thrown to the corporate wolves in a CRC, I now hear about the latest court target for my poor beleagured colleagues in the NPS who have been totally overwhelmed by PSRs whilst 'managing' high risk cases et al. It seems that the new 'target' for PSRs of all ilks including SDRs is 100% on the day and they are about to put POs back into courts to achieve this. Meanwhile, in the CRC, we already have 'Oral Reports' that aren't worth the paper they're printed on, FDRs no longer requiring even the most cursory of OASys assessments and all of the essential detailed assessments displaced to the field to meet court requirements of 'swift and speedy justice', whilst NOMS reintroduces a 10 day 'target' for initial sentence plans.(FFS)

******
PSR's are not meant to be pleas in mitigation. I don't write them to get the punishment reduced. I write them to argue for the sentence I think is most likely to reduce the risk of harm and of reoffending. I write them for the benefit of my community.

*****
Sadly I do not believe I will ever be able to do 'a better job' again. How are you going to tell what is most likely to reduce the risk of harm without assessment? How do you assess what the risk of harm is in the first place without interviewing someone? Already with dumbed down or rushed 'reports' we have people on orders which they cannot complete due to work or mental health issues, we have people who don't have a grasp of what they have been sentenced to, people who should be on sex offender programmes but are not and some who are that shouldn't be. All on my current caseload in the new NPS - some of my interventions might well be taking the blasted orders back to court for amendments. Pity the ones who end up in custody to be assessed afterwards. Too late then and moreover the content of a report and the level of risk directly affects what happens to people in prison..I could go on... I've always believed that the process of preparing a report, that period when someone is in crisis, who might never have discussed the offence before, is absolutely crucial to how people respond to whatever they are sentenced to afterwards. 'Do good work in the environment we are in..?' It'll be a repair job then given the size of the rock that Grayling and his cronies has lobbed at us.

--oo00oo--

I'll end on the irony that other jurisdictions continue to value the PSR and they don't seem to be in the state of chaos that we are here in England and Wales:- 

PROBATION SERVICE INDIVIDUALISING JUSTICE: Pre-Sentence Reports in the Irish Criminal Justice System

FOREWORD 

Courts request pre-sanction reports (PSRs), prepared by Probation Officers, in many cases, as part of the sentencing process. These assessment reports provide background information on the defendant and the circumstances of their offending. They also include an assessment of risk of re-offending, and, where relevant, an assessment of risk of causing serious harm, as well as proposals regarding what might be helpful to the management of a community sanction and the rehabilitation of the offender. The practice regarding assessment reports provided by the Probation Service to the Courts has evolved over many years, and such assessments play an important role in the criminal justice system. Each year, the Probation Service provides on average 10,000 such reportsto District and Circuit Courts throughout Ireland. To date there has been limited research on the use of pre-sanction reports (PSRs) in Ireland and what impact they have on sentencing. This study, commissioned by the Probation Service, is a welcome initiative in beginning to address that knowledge gap. 

This research is a small-scale study conducted in one Court area. The in-depth nature of the research, entailing observations of interviews conducted by Probation Officers with offenders, analysis of presanction reports and follow-up interviews with Judges and Probation Officers, provides a unique qualitative insight into the use of PSRs in Ireland. It also provides a template for replication of this research more widely. Among other findings, the research shows that the process of preparing a PSR can be the first step towards positively engaging people who have been involved in offending. There is also a broad correspondence between PSR recommendations and sentence outcomes, and Judges interviewed were generally positive about the quality of PSRs they received. The study also points to a number of specific areas, including the practice referred to as ‘adjourned supervision,’ that merit further exploration. 

The Probation Service would like to express thanks and appreciation to Dr. Nicola Carr and Dr. Niamh Maguire, for their hard work and commitment in completing the study. I also want to thank the Probation Service staff and managers who participated in the study as well as the members of the Judiciary, Court staff and the subjects of the PSRs themselves, without whose co-operation and openness, the study could not have been completed. Research and evaluation make an important contribution in developing and improving services. The Probation Service is committed to implementing best quality service practice and interventions supported and informed by evidence and evaluation. This research study, while small in scale, is a valuable step in examining the role and function of PSRs, in sentencing, in Courts in Ireland and provides important insights and observations. It also makes a contribution to this developing field of study in Europe. We look forward to supporting and co-operating with further research and evaluation studies, particularly involving probation and other community sanctions.

Vivian Geiran  
Director, Probation Service
July 2017

Look Who's Been Silly

It looks very much like the Governor of HMP Erlestoke has done a very silly thing - he's incurred the wrath of the indefatigable Frances Crook of the Howard League by seemingly re-introducing the book ban by underhand and sneaky means. My advice to Mr Tim Knight is to get it sorted asap or you are going to very much regret taking on such a potent force for common sense. Here's what Frances has to say:-    

Books For Prisoners: Erlestoke

I have been contacted by a mother of a prisoner in Erlestoke. She was told she was not permitted to send her son books. She wanted to give him novels and he had asked for a dictionary.

She lodged a complaint and got her local MP involved. Eventually the governor, in an illiterate and barely comprehensible letter, said her complaint had been upheld. However, he invented a new rule to make it virtually impossible for her to send in books.

He said the lad had to complete an application form for each book which would then be checked against a list of banned books. Once this tortuous process was completed, the book could be sent in. This could, of course, take weeks. It also required the young man to know the exact title of each book he wanted, despite having no mechanism for searching for books.

The whole point was that the mother would look online and find books she thought her son would like, to help him while away the long hours that he is locked behind his cell door. He cannot do this, as prisoners have no access to the internet. She told me that the library at Erlestoke is terrible.

Governor, you are wrong. Let the books in.

Erlestoke prison was severely criticised this year for being a hotbed of violence, drugs and bullying. No wonder, if managers and officers are spending their time trying to stop prisoners reading books by inventing labyrinthine bureaucracies.

Just to be clear, the governor is wrong. The prison rules state that books can be handed in to staff at visits and can be purchased via specified retailers to be posted in to prisoners. Of course they are checked for contraband, and each prison does indeed have its own idiosyncratic and capricious list of books it bans. But there is no rule that says a prisoner must request each book. So, governor of Erlestoke prison, you are wrong. Let the books in.

There are some serious issues behind this sorry story.

Prisons are meant to be upholders of the rule of law. They are the ultimate expression of our justice system. It is shameful when staff find ways to undermine fairness and justice. What message does this send?

Secondly, as prisoners are locked up in their cells for months on end, surely reading is the one thing we want to encourage them to do.

The Howard League ran the world famous ‘Books For Prisoners’ campaign in 2014. I do not expect a silly governor to sink to banning books today.

Frances Crook

Probation and Pay

I notice that Napo Assistant General Secretary Dean Rogers has been considering the vexed issue of probation pay and has published some thoughts on the matter:-   

Unions Need To Start Talking Hard Cash

With a Government as chaotic as the Tory/DUP coalition, it’s difficult to know for sure what their strategy and thinking was in announcing the staged lifting of the public sector pay cap on 12 September. Whether deliberately or not, the impact of the timing has been primarily negative on two counts.

Firstly, by coinciding with the latest inflation figures they’ve amplified both the scale of the public sector pay crisis and the inadequacy of their proposed solution – the 2.9% inflation figure being almost 3 times the cap for 2017-18 on teachers, nurses, doctors, probation officers, fire fighters, etc and still almost double the 1.7% average proposed increase for police and crisis stricken prison staff.

Secondly, the timing came at precisely the moment all of those most likely to directly challenge the Government were literally gathered together in a big room at the annual TUC in Brighton, with the nation’s media on tap angling for a story. Inevitably, they got one. Union leaders queued up to support the POA and police, warning about the inadequacy of the “insulting” below inflation offer; illustrating how their members were just as badly off or worse; and universally pointing out that any increases needed to be funded or hospitals, schools etc faced a choice between breaking from their national award or redundancies. The timing recognised the hornet’s nest and whacked a stick at it like a pinata. Public disruption looms as the swarm readies it sting.

But whilst Mayhem reigns in Government the unions have a communication challenge of their own. Whilst there’s growing unity across the powerful, well organised public sector unions about the unfairness and unsustainability of the pay freeze, there is less commonality about the solution needed in each sector. Because of the range and complexity of different public sector pay arrangements the impact of the pay ice age is different and as the thaw starts the damage and fault lines opened up will vary across different sectoral landscapes.

For example, whilst both prison officers and probation staff have suffered the same 1% overall cap, with staff at the published rate for their job actually getting no consolidated increase at all for 7 years, their situations are in almost every other way different. In prisons, botched pay reform has left their system neither “fair nor sustainable” – or transparent with differences between people doing the same roles; hidden allowances for some over others; and variations to the application of CARE pension principles meaning the thaw will reveal divisions and dangers across prisons. This could easily undermine unity across prison staff – all can agree 1.7% isn’t enough for anyone but it will be more difficult to find any single figure to address everyone’s loss during austerity or give everyone security in their new landscape.

Meanwhile, in probation, another service in crisis where the MoJ Minister signs off the pay deals, the prison cap announcement was met with incredulity. Clearly not enough at about 1/2 inflation but more than the 1% probation are told they’re still stuck with as they don’t have a Review Body. Whilst the MoJ bodged prison pay reform, the pay freeze has prevented pay modernisation across probation, leaving them adrift with pay scales that take at least 27 years to progress to the official rate for the job and where in all but one of the 6 main pay bands the majority of staff earn less than their range mid-point. Even a universal 10% pay award wouldn’t remove the entrenched unfairness or improve relative competitiveness for a service desperately needing to recruit more staff. That’s without accounting for additional pay pressures via the internal probation market, created during the pay freeze and unleashed with any thaw, following the part-privatisation and part – nationalisation of the service.

Whilst probation unions Napo, Unison and the GMB will want to line their members up alongside the TUCs ranks any common headline % figure they are called to rally around will likely leave them short changed. Any concessions won collectively will as likely leave probation isolated when inevitably going back to ask for more.

Hard Cash Alternatives

There is another option. Unions could unite around a Fair Pay for Public Servants campaign without any common alternative figure and specifically without any %’s – making a virtue out of the principle of pay transparency. Instead each sector can set their demand for a fair salary in real terms. These can be tested and illustrated not against each other (cutting off Government excuses like, “If nurses only got 3% and privatised care workers 2% how and why can we justify giving you lot 5%” or “How can we justify a 10% increase to taxpayers when inflation is only 2.7%?) but against actual costs that resonate with workers, voters and politicians.

Which of these two approaches is likely to be the most effective? The traditional “We haven’t had a real terms rise for 7 years and need to catch up so give us 10% plus some more for pay reform” or the alternative that:

• Starts with asking the politician and public, “How much do you think a skilled, experienced probation officer, working in your community or inside a prison with some of societies most complex and difficult people, making critical decisions that have a profound effect on public safety, should get paid?”;
• Moving to the same statement but wrapped in “So do you think it is fair that….get less that £32,000 on average with many experienced but less qualified Probation Support Officers being forced into making decisions they’re not trained to make on less than £25,000?”

By moving away from percentages unions can also broaden and humanise the debate more clearly. A key pay figure hugely under – utilised and under – played is relative disposable income. This is why public servants go to food banks… in some parts of the country after rent, travel costs, clothing (to meet professional dress codes), mobile phone costs to remain contactable, childcare costs, student loan repayments, and additional pension contributions since the pay freeze many public sector professionals literally have almost nothing left. Putting public sector pay in these terms would certainly stop Hammond and Co patronising their staff about the need to save and spend responsibly.

Disposable income and hard cash comparisons also help translate the weaknesses in the official headline average inflation figure that disproportionately weights factors like low mortgage rates and cheaper second hand cars – of limited relevance to the typical mid 20’s debt ridden recent graduates being targeted by Government to fill the public sector job gaps who will typically be renters in more expensive cities, who commute on public transport or pay higher car insurance premiums, and who would expect to occasionally at least be able to socialise with workmates in their unfamiliar new surroundings. The TUC would do well to invest in research to show the real inflation costs for this basket in direct comparison to the official CPI basket and a disposable income calculator.

Hard cash offers will also help those on both sides who help design and maintain pay systems. People understand real costs. If circumstances vary or change, real cost comparators offer more flexibility and transparency – for example in justifying and explaining higher pay rates in and around London without using the blunt and offensive Regional Pay device that’s as likely to embed low pay in regions like Wales as it is to address recruitment pressures in Wandsworth.

And real cash awards would have more consistent resonance with taxpayers. Demanding at least 10% can sound like a difficult sell. But start by explaining that an offer of a pay freeze busting 2.5% (or an extra £600 a year for most new entrants in the public sector) isn’t much when it works out at less than £5.50 a week after normal stoppages. Point out that’s the increase for someone doing a complex, pressured and at times dangerous job in probation or a prison and then tell them their starting pay is only about £460 week before stoppages and you’ll possibly be getting their attention. Then explain their normal disposable income is only currently only about £70 a week before food if they don’t have kids and they may well start to see why demanding four times the proposed increase perhaps isn’t so unreasonable.

Unions know that gaining support for industrial action on pay is usually difficult an never more so than when general pay rates have been stagnating across the economy. That’s as true internally as externally – before worrying about public support for strikes the unions need to gain the support of their members who don’t go into public service jobs for the money and have been keeping them going despite the cuts and pressures – going on strike is not their instinct. A new, more transparent approach, centre on hard cash has more chance of engaging and explaining the cause on all fronts.

Dean Rogers
Assistant General Secretary

No Prison Reform Without Probation Reform

I notice that the Prison Reform Trust have just offered some considered advice to HM Treasury and in a well-argued document make some very sensible suggestions regarding ways in which to reduce the current high prison population.

What astonishes me though is how any considered piece of political and penal pleading like this can completely ignore mention of the probation service. I've said it many times before, but it's becoming quite clear that 'probation' as a concept; a process; a worthy field of enlightened endeavour, is simply being slowly and insidiously air-brushed out of existence.

In a 20-page document, probation is only briefly mentioned in terms of the ridiculous mandatory 12 month supervision introduced by TR for all short-term prisoners. Why is it that prison reformers don't understand that there can be no prison reform without probation reform? The mess we are currently in was largely brought about by the destruction of probation by TR. This is how probation is dismissed by the report:-     

Recall 

Following changes introduced under the Transforming Rehabilitation reforms as part of the Offender Rehabilitation Act 2014, anyone leaving custody who has served two days or more is now required to serve a minimum of 12 months under supervision in the community. As a result, the number of people recalled to custody following their release has increased dramatically. The recall population has increased by around 750 people since the changes were introduced in February 2015. 6,390 people were in prison on recall at the end of June 201742, and over 8,100 people serving a sentence of less than 12 months were recalled back to custody in the year to March 2017. 

Despite these additional pressures on HM Prisons and Probation Service, there is no evidence as yet that mandatory supervision has had any impact on the reoffending rate of short sentenced prisoners—the principle justification for its introduction. 

An earlier pilot at HMP Peterborough, which was often cited by the government in support of the extension of mandatory supervision, was a voluntary scheme, and so its participants were self-selecting. As such, it provides very little evidence for the likely impact of a mandatory period of statutory supervision on rates of reoffending. The Prison Reform Trust would like to see a return to the principles which underpinned the pilot at HMP Peterborough by making the supervision of short sentenced prisoners voluntary.  

Here's a synopsis of the report from the Pison Reform Trust website:-  
 
Projected rise in prison numbers means government cannot build its way out of a prisons crisis

The Prison Reform Trust has today (25 September) published its response to HM Treasury’s consultation on this year’s Budget, which highlights concerns about the viability of the Ministry of Justice’s prison building programme in light of the projected increase in prison numbers. Since May this year growth in the prison population has been extremely strong—rising by over 1,200 places in only 13 weeks, and it remains higher than at any other point in the last four years.

Prison population projections, published last month, revealed that the population is expected to grow by around 1,600 above current levels by 2022. They also reveal that projections published last year, on which plans will have been made for the prison estate, were significantly more optimistic—with a gap between the 2016 projection and the 2017 projection of around 2,000 additional spaces by the end of this year.

The practical implication of this change is dramatic. Under the government’s prison estate transforming programme (PETP), it had planned to replace old inefficient prisons with new prisons that are cheaper to run, through committed investment of £1.3bn during the current spending review period. The eventual savings were anticipated to contribute to the Ministry of Justice’s overall savings plan.

However, the additional and unanticipated rise in prison numbers, together with the new population projections, raise serious doubts about the sustainability of the PETP programme. Without the option of closing older prisons, as now appears inevitable under the current population projections, no funds are released to run the new prisons planned—still less to finance the building and running of new prisons that will be required over and above the 10 committed by the previous government.

In order to relieve pressure on HM Prisons and Probation Service and avert the likely shortfall in available capital to build and run new prisons, the submission outlines immediate and practical steps which the government can take to deliver an incremental and sustained reduction in our prison population. This includes:

• Expediting the release of people currently serving the Indeterminate sentence for Public Protection by introducing new legislation to convert them to fixed length sentences, starting with the shortest tariff lengths where the greatest injustice has occurred.
• Reducing the large numbers of people recalled to custody after release by replacing mandatory supervision of people serving prison sentences of less than 12 months, with voluntary supervision.
• Limiting the use of custodial remands—More than one in 10 people (10,328) remanded in custody in 2016 were subsequently acquitted. A further 14% of people (13,224) received a non-custodial sentence.
• Revising the sentencing framework to reverse the effects of sentence inflation over the last two decades.
• Implementing the recommendations of the Lammy review to reduce disproportionality in the criminal justice system.
• A full roll out of a national liaison and diversion scheme to ensure people with mental health needs and learning disabilities get the treatment and support they need.
• A particular focus on effective community approaches for women offenders.
• A distinct approach to young adults and recognition of maturity at all stages of the criminal justice process.

Our submission highlights the recent success in the youth justice system in reducing numbers in custody. The number of children imprisoned fell by two-thirds between 2007 and 2014, whilst proven offences by the same age group also fell by 72% during the same period.

Commenting, Peter Dawson, Director of the Prison Reform Trust, said:

“The dramatic and unanticipated rise in the prison population has torpedoed the Ministry of Justice’s new for old prison building plans. We can expect that HM Treasury will not be prepared to bail out the justice department again. The government has to start looking at practical solutions now to reduce prison numbers.”

'A Progressive Response to Rising Crime'

News of Tony Booth's passing serves to remind some of us with a few years under our belt of this and that over a long and varied career he played many roles. For those newer colleagues keen to understand how probation was done in the past, "was increasingly coming into focus as a progressive response to rising crime", I'd thoroughly recommend a trip down memory lane courtesy of the 3 disc set published earlier this year. 

ATV drama Probation Officer comes to DVD
An early hit for ATV, Probation Officer, starring John Paul and Honor Blackman aired on ITV from 1959 through to 1962.

Tony Booth appears in a later episode of Probation Officer from ATV

The saga is described as an ‘absorbing, rigorously researched drama’ which centres on the work of a team of probation officers based in London, and the lives of the men and women of all ages and backgrounds who come under their care.

Probation Officer sadly, like so many ATV programmes of the era, does not exist complete in the archive – this volume contains the twelve earliest surviving episodes from series one which was produced in the last year of the 1950s.

Drawing on the documentary skills of creator Julian Bond and produced by Emergency – Ward 10’s Antony Kearey, Probation Officer was broadcast at a time when the service was increasingly coming into focus as a progressive response to rising crime.

Guests include Alfred Burke of Public Eye fame, Susan Hampshire from Monarch of the Glen, Strange Report’s Charles Lloyd Pack, Richard Vernon as seen in Goldfinger and Peter Vaughan of Porridge fame.

Also in this first volume Earl Cameron and Lloyd Reckord star in a blistering tale of racism and intolerance which features one of the earliest interracial kisses ever broadcast on British television.

Probation Officer – Volume One (12) is released on the 30th of January 2017 with a RRP: £29.99. The three disc set has been complied from the ITV Studios archives by Network Releasing.

--oo00oo--

A reader has kindly sent me the following from a 1960's publication and quoting the actor Alfie Bass:-

In passing, one may note his praise of another commercial television programme, Probation Officer. John Paul was invited to take the role of a newcomer to probation work whilst working in Emergency Ward 10. If the show is little remembered now, it was one of the best "social reality" dramas produced in the 1950s and 1960s. John Paul had been a prisoner of war and had become interested in drama through involvement in shows produced within the prison camp. On demob, he secured a job with the Birmingham Repertory Theatre and there met his wife, Jean Kendall. Probation Officer, made in the days of black-and-white transmissions, showed a team practice, two older colleagues played by David Davies and John Scott. Great care was taken to reflect accurately the day-to-day life of probation work - including the frustrations and "brick walls" encountered in trying to elevate human attitudes and relationships. As with No Hiding Place, actual case-work was used as a basis for the programme. Many wrote to John Paul thanking him for his work; few people seemed to understand the nature of the probation service at that time, nor for that matter the kind of needs that many convicted people had. Alfie Bass complimented the programme for this, adding that he enjoyed seeing the programme "because it shows the background of many ordinary people's lives."                

Different Ways of Doing Things

Once again we seem to have entered a quiet period, almost certainly before a storm of some kind, but it provides an opportunity to reflect and take a broader look at what's going on around us. An example is provided here with an article in the War Cry of all places, the house magazine of the Salvation Army:-

Sex offenders have to recognise their own risky behaviour

A few months ago Riana Taylor received a phone call from someone saying that she should look at a copy of a newspaper. The paper was carrying a story about someone who had been receiving help through a Circle of Support and Accountability. Riana, the chief executive officer of Circles UK, which co-ordinates the regional Circles, remembers: 

‘The report was about a paedophile who had been released from prison. A neighbour had caught on to their identity and had talked to the paper. As a result, the person had to be moved, because there was a risk of vigilante activity. They had been to prison, served their sentence, were released and while on licence with the probation service linked up with one of our Circles of Support and Accountability. They were complying with the conditions of their licence, were trying to get back on an even keel and refrain from reoffending. But then the neighbour spoke to the newspaper.’ Riana, who previously worked on the transformation of the criminal justice system in her native South Africa as part of Nelson Mandela’s first government and in the UK probation service, noted not only the story but also reactions to it.

‘The story went around the world through online media, and I followed the comments that people were posting online in reaction to it. In the UK, there were some messages of support, but we received loads of hate mail and abusive comments on our website, Twitter and Facebook. In contrast, the Dutch response was to wonder what the problem was – the person had been to prison and served their sentence.

‘In the UK, the prevailing attitude was that they were unwanted in the community and were a horrid person. Let’s be clear: they had done extremely harmful things – we at Circles UK would be the first to say that. But having been to prison, they were attempting to reintegrate into the community and were making good progress. Most people, however, seemed to think they should be back in prison.’ Circles of Support and Accountability surround released sex offenders with four to six volunteers who aim to assist in their rehabilitation.

Riana explains: ‘It’s about helping people face what they have done – that’s why the name talks of “accountability”. Sex offenders tend to deny what they have done, but they have to realise the harm they have caused and recognise their own risky behaviour. ‘The name of the Circles groups also includes the word “support”, because the volunteers help the sex offender to reintegrate into their community.’

Each circle of volunteers meets with the sex offender on average once a week and liaises with statutory bodies, such as the police, probation and social services, and other professionals, such as psychologists. Together they identify the level of risk posed by a sex offender and the specific problems with which they need help to stop them reoffending.

‘Those problems could include practical needs, such as housing or budgeting,’ says Riana. ‘It could also be the building of relationships, because many people who commit sexually harmful behaviour are socially isolated. When the public and family and friends find out what they have done, they’re often shunned – and that is an additional risk factor in their committing further sexual abuse.

‘The volunteers may also help them with employment. It is extremely difficult for sex offenders to find work. No one wants them. Obviously, someone who has abused a child shouldn’t be placed in a school, but there’s no reason they can’t work in a role where they pose no risk.

‘Our groups also look at people’s psychological needs and do trauma-related work. I don’t believe that sex abusers are born that way – they are often shaped by experiences. Very often they reveal that they themselves suffered abuse in the past.’ Riana suggests that rehabilitation may take different forms as each person is unique. The ultimate hope is that an offender can reach a stage where they will not even want to commit an offence again; in some cases, though, rehabilitation will, at most, entail the offender recognising their risky behaviour and managing it, ‘like a reformed alcoholic recognising triggers and staying away from drink’. Prevention as well as punishment is needed, she says.

‘At Circles UK we’re often called friends of paedophiles, as if we support sexual abuse. We don’t. We find sexual abuse abhorrent and we want to avoid further abuse. We believe that society needs to help people who suffer abuse – and that can sometimes be the abuser too, who may have suffered the trauma of abuse themselves; secondary victims, such as the partners, parents and children of an abuser who often suffer ostracism; and the primary victims.

‘If society doesn’t take a preventative approach by trying to rehabilitate offenders and supporting their families, we will just make more and more victims.’

Riana Taylor, CEO Circles of Support and Accountability 

David v Goliath

Ever since the trauma of TR was visited upon our profession, there have been regular complaints on this blog that Napo have refused to either instigate or support any meaningful legal challenge to any aspect of it. Therefore, thanks to a tip-off from a reader, I suspect it will be of considerable interest to hear of a recent Employment Tribunal decision Mrs C Stepheson v Secretary of State where one unrepresented Probation Officer had the bottle to take on Goliath in the form of fully-funded Treasury Counsel. 

Before going any further I feel I must say that I feel considerably conflicted. Having read the Reserved Judgment, it should go without saying that I have enormous respect for the individual involved. However, even though all the details are in the public domain, I'm conscious that drawing attention to it may make a difficult situation even worse for the claimant. But the issues raised would seem so fundamental that I feel it necessitates examination and discussion. 

In my view it is nothing short of outrageous that there has never been any Napo-supported test case, a situation I know has caused widespread consternation leading to many resignations. This is not just a serious error of judgement that requires 'calling out', I sincerely hope that this person's case might attract the attention of legal experts and possibly an offer of pro-bono assistance in relation to an appeal. 

The Judgment extends to some 37 pages, covers lots of issues and I urge people to read it in full. I'm no lawyer, but it's clear to me that if one person, unrepresented, could have got this far at an Employment Tribunal, just imagine how far a properly-funded and resourced legal challenge could have got? For the sake of a whole profession, history really should record that matters were thoroughly examined legally and that we have recourse to a definitive legal judgment regarding the key issues raised here, not least the TUPE-type transfers. Napo should be ashamed.

I repeat - read the whole decision, but these are some of the key issues that caught my eye:-   

RESERVED JUDGMENT

The judgment of the Tribunal is that: 

1. The complaint of indirect age discrimination fails. 
2. The Tribunal does not have jurisdiction to consider a ‘stand alone’ complaint of indirect sex discrimination in respect of pay. 
3. The Tribunal does not have jurisdiction to determine the equal pay complaint insofar as that is a complaint about alleged breach prior to 1 June 2014. 
4. Insofar as the Tribunal has jurisdiction, the equal pay complaint fails. 
5. The complaint alleging an unauthorised deduction from wages also fails.

REASONS

1. The Complaints 

The complaints are:- 

• Indirect age discrimination 
• Equal pay (and indirect sex discrimination) 
• Unauthorised deduction from wages 

In essence Mrs Stephenson complains that unlawful discrimination occurred when a change to the respondent’s pay policy had the effect that the claimant would not reach the top of pay band 4 within ten years of qualifying (which had been her expectation at the time of qualifying) and instead would – if she remained employed that long – only get to the top within 22 years of qualification. The unauthorised deductions complaint concerned the alleged withholding of annual pay increments.

We have put the indirect sex discrimination complaint in parenthesis because, as discussed with the parties at a preliminary hearing for case management on 8 April 2016 and as further discussed on day one of this hearing, it appeared that the Tribunal had no jurisdiction to determine a “stand alone” indirect sex discrimination complaint where the less favourable treatment was in connection with pay. Instead the appropriate cause of action was limited to the complaint in respect of equal pay (see Equality Act 2010 section 70). It was acknowledged, however, that the concept of indirect discrimination can be relevant in an equal pay case as opposed to being a freestanding complaint. We deal with this further in our conclusions set out below.  

7. The Relevant Facts 

There has not been any significant dispute concerning the relevant facts – at least the background facts. 

7.1 The claimant began her employment as a trainee Probation Officer with what was then the National Probation Service on 14 October 2002. Prior to that the claimant had worked in Social Services and for a brief period she had worked in HR Administration for the Transport Executive. 

7.2 The claimant underwent a two year training course and achieved a Diploma in Probation Studies and a Bachelors Degree in Community Justice. 

7.3 In October 2004 on qualification the claimant was issued with a new statement of employment particulars (the original 2002 statement is at pages 118-120) and the 2004 statement is at pages 121-124. Under the heading “Conditions of Service” it was noted that those were generally as laid down by the National Negotiating Council for the Probation Services (“NNC”). The statement noted that copies of those conditions were available in the workplace. In addition there were local conditions of service. This part of the statement also includes the following: “Your grade and salary are as stated in the letter of appointment and as specified on your pay advice. Subject to satisfactory service your salary will rise by annual increments to the maximum of the scale.” 

7.4 The claimant began at the bottom of band 4 on the pay scale. The 2004 statement does not stipulate what the “annual increments” will actually be, nor does it give any indication as to when the claimant would or might reach the top of the scale (or band). 

7.5 In a letter from the National Probation Service to the claimant which apparently was undated but which she received on 10 November 2006 the claimant was informed of the outcome of the Job Evaluation exercise which had been carried out in respect of her job which was described as “probation officer based at Doncaster”. The claimant had been placed (or remained) in pay band 4. Details of the claimant's new salary, post assimilation were given. What was described as a development point – used to determine incremental progression on assimilation – was given as SCP (Single Column Point) 92, and the new SCP itself as SCP 74. This letter is at page 125 in the bundle. In explanatory notes which it is assumed were enclosed with that letter there is a paragraph which is headed “Applying Incremental Progression” (see page 126). This explains that once the new SCP has been determined incremental progression would take place. The number of incremental points to be advanced depended on where the new SCP lay in relation to the development point. A table set out the various options. This depended on whether the new SCP was below, on, or above the development point. Because the claimant’s new SCP was below her development point the table indicated that the number of increments advanced per year would be four. By reference to the heading to the notes this was in respect of the 2006 pay award. The claimant contends that the effect of this document was that it would now only take seven years for the claimant to get to the top of the band. That, of course, assumes that for the remaining seven years there were four increments per annum. In the event, that proved not to be the case. Neither the pay award implementation letter nor the explanatory notes said anything about how long it might take an individual to get to the top of the band.

7.13 According to the claimant's case, it is the 2010 reduction to one point per annum which leads to her understanding that it would now take 22 years to reach the top of band 4. However, as the respondent points out, the claimant had in fact made good progress during the earlier part of her ‘qualified’ employment. It also points out that the claimant is not subject to a contractual retirement date and so whilst the claimant’s concern is that she will not reach the top of band 4 before she retires, that concern is based upon her intention to retire at 66 when she receives her state pension. Everything else being equal, the claimant could continue to work beyond her 66th birthday. The respondent also points out that it is, and would be, open to the claimant to apply for a promotion to take her to a higher pay band altogether.

7.16 On 1 June 2014 a restructuring of Probation Trusts came into effect. It is the respondent’s case that the result of this was that employees of those Trusts were from that date transferred to either one of the newly created Community Rehabilitation Companies (“CRCs”) or the newly established National Probation Service (“NPS”). Further, it is the respondent’s case that it was to the NPS which the claimant was transferred. As we have noted above, the claimant says that she was not aware of this transfer and the respondent has not been able to show us any letter which might have been sent to employees such as the claimant to notify them of this change. As we have also noted, there are relevant statutory provisions – the Offender Management Act 2007 and related documents, that we need to consider when determining whether we have jurisdiction to entertain that part of the equal pay complaint that relates to what the respondent contends was the separate employment which ended in June 2014, thereby triggering the time limit referred to in section 129 of the Equality Act 2010.

7.17 We understand that the claimant raised a grievance on 3 June 2015 broadly about the issues which are now the subject matter of this claim. However, we have not actually seen the grievance or any related documentation.

7.18 Clearly, whatever the outcome of that grievance was, it was unsatisfactory as far as the claimant was concerned because on 4 November 2015 the claimant presented her claim to the Employment Tribunal. Mrs Woodhouse, the claimant's colleague, commenced a claim on the same basis at that time, but that claim has not proceeded.

9.1.5 The claimant complained that whilst the direction of the Chancellor of the Exchequer that public sector pay awards should not exceed 1% had been upheld within the Probation Service, there had been other public sector employees who had benefitted from pay awards and she gave politicians – presumably Members of Parliament – as an example. The claimant believed that the respondent was deliberately misinterpreting the Chancellor of the Exchequer’s requirement – they had paid 1% as a pay award but in doing so had failed to pay the contractual increments. The claimant suggested that, by backdating what had been described as a pay award, employees had been misled into thinking that their contractual incremental progression had been paid. The claimant noted that as of 1 April 2017 the contractual increment had been paid in that month.

9.1.7 Under the heading of “equal pay claim” the claimant contended that her four male comparator probation officers had had more favourable contracts as they had progressed to the top of the band 4 pay scale within ten years post qualification, having received what the claimant described as “the contractual automatic annual incremental progression year on year”. That had been progression at three points per year and the claimant suggested that because that had been happening for at least ten years it had become custom and practice. In addition, the comparators had during the same period of time also received consolidated and non consolidated pay awards and in due course would have a greater pension pot than the claimant. The claimant contended that the comparators had benefitted from the different terms which had been offered to them. The claimant was now precluded from the additional consolidated and non consolidated pay awards given to the comparators which placed her at a particular disadvantage when compared with those comparators.

9.1.10 Under the hearing “Indirect sex discrimination” the claimant explained that the basis of this complaint was that the respondent had a pay policy which no longer allowed for automatic pay progression and that put women at a particular disadvantage when compared to men. The claimant went on to refer to recruitment trends in the Probation Service which she said showed a significant shift towards more females than males being employed. A situation emerged accordingly whereby males were clustered around the top of the pay scale in proportion to females who were placed lower down the pay band. We should add that we have not received any statistical evidence of what the recruitment trends in the Probation Service might be. The claimant acknowledged that evidencing that assertion had proved difficult due to what she described as the respondent’s failure to provide reliable statistical data in a timely manner despite having been issued with an order. She contended that the data which had been provided initially was confusing and meaningless and that the data provided subsequently had proved to be inaccurate and therefore unreliable.

9.1.11 Noting that the respondent had conceded that the claimant's four comparators were paid at the pay maxima, the figures which the respondent had provided only showed three males at the top of the pay band. The claimant in her submissions stated that she was aware of at least six males (it is unclear whether she means six additional males) who are at the pay maxima and potentially more who are based in other locations within South Yorkshire. We should add that the Tribunal is unaware who those six are (other than the four comparators if they are included); still less are we aware of any others at different locations in South Yorkshire. The claimant's assertion remained that men were disproportionately clustered at the top of band 4 and the claimant invited the Tribunal to draw an adverse inference as to why the information which she had been requesting since February 2016 had subsequently proven to be inaccurate and therefore unreliable.

9.1.16 The claimant then went on to deal with the TUPE transfer point. In fact it should be noted that the respondent is not suggesting there was actually a TUPE transfer but rather something which was akin to a TUPE transfer. In any event the claimant accepted that in June 2014 she had transferred from the Probation Trust to the newly formed National Probation Service but contended that that was under the umbrella of the Ministry of Justice and that her continuity of service had remained. As far as time issues were concerned, the claimant contended that in respect of equal pay, indirect age discrimination and indirect sex discrimination there had been a continuing failure to pay her the same as a male comparator. Failing that the claimant wished the Tribunal to take into account that she had not been able to secure union support. The union had encouraged her to await the outcome of pay negotiations. The claimant had become aggrieved in 2015 when she realised that colleagues close by were earning nearly £5,000 more than herself per annum and she had submitted a grievance. She had then pursued the matter as a litigant in person.

9.1.18 Further we should add that on 31 July 2017 (therefore post our hearing) the claimant sent an email to the Tribunal in which she said that having had some time to reflect on the proceedings she now wanted some other matters to be considered by the Tribunal. The first was that the respondent had introduced new documentation on the first day of the hearing – the statistical analysis – and that on the last day had made the suggestion that the claimant was the subject of a TUPE transfer. On the latter point we repeat the caveat about what the respondent actually contends. Further as we have already noted, the respondent had been contending that there was a transfer type time issue at least since it amended its response in October 2016. Whilst, as Mr Lewis pointed out on the first day of the hearing, that was not referred to in the List of Issues agreed at the 13 September 2016 preliminary hearing, that is perhaps unsurprising as the amended pleading to which we have referred did not arrive until the following month. Accordingly, whilst we accept that the claimant as a layperson may not have realised the significance of it, we do not think it is fair to suggest that the transfer/time issue was only raised by the respondent on the last day of the hearing.

9.1.19 In her email the claimant went on to contend that as she believed the raw data to have been inaccurate and unreliable, so too was the analysis which counsel had prepared based upon it. Further, the claimant contended that the respondent suggestion that she could have sought promotion was totally irrelevant. The case was about her current grade of probation officer, the role that she had trained to do. If she had wished to work in a management capacity she would have elected to apply for that role.

9.2.7 In terms of particular disadvantage it was understood that the claimant contended that the PCP caused the disadvantaged group two types of particular disadvantage – less annual pay and being precluded from reaching the top of the pay scale before retirement with the consequent adverse impact on pension. In relation to lower annual pay, Mr Lewis contended that there would be no actual difference in annual pay as between the two groups who, both having qualified in 2004, would continue to progress up the pay scale in accordance with the version of the policy then in operation. Accordingly from April 2011 onwards both groups, irrespective of their age, would have advanced by one pay point each year, meaning that it took both groups the same period of time to reach the top of their band. Whilst the claimant might consider that it was unfair that her four male comparators had been able to progress when more generous pay progression was provided for, that was not the appropriate comparison to make for an indirect discrimination complaint.

9.2.8 In any event, on the basis of the available statistical data (at pages 289F-M) it was adequately clear that older probation officers (those over 46) in band 4 had, as a matter of fact, higher average pay than their younger colleagues in the same band. That was so even if the Tribunal disregarded those who had already reached the top of the pay band and so were not affected by the 2011 change. The statistics also showed that older band 4 probation officers were in fact more likely in general to be clustered around the top of the pay band, and Mr Lewis referred us to table 8 on page 289E. Therefore the respondent contended that the claimant could not show sufficient or any statistical basis for her argument that older workers were paid less.

9.2.9 In relation to pension disadvantage, Mr Lewis repeated his argument that unfairness in relation to colleagues who had started in earlier cohorts was not an apt comparison. However in any event the claimant had not called any evidence, statistical or otherwise, on the effect of the alleged PCP on the pension entitlement for either group. Further, the alleged disadvantage could not be adequately linked to the protected characteristic of age because other factors would come into play, including an individual’s preferred retirement age, particularly bearing in mind that the respondent did not impose a mandatory retirement age. Members of the older group could also seek promotion and finally, members of the disadvantaged group benefitted from the advantage of the underpin arrangement that was not available to the younger group.

9.2.17 In relation to the comparator pool, the claimant's case was that the disadvantaged group was a pool of female probation officers employed since 1999, and that the advantaged group were her four male probation officer comparators: Messrs Ullah, Harley, Taylor and Lockington. There was a clear and marked material difference, most obviously because the claimant was seeking to compare a group of female employees employed since 1999 with a group of male employees all of whom had been employed since well before 1999. Despite the relatively small difference between the parties as to such matters as the four comparators’ start dates, it was accepted that all four comparators had started employment before 1999 and they had all reached the top of band 4 several years before the alleged PCP was introduced in 2011. Accordingly the comparators benefitted from a significantly different pay progression regime, one which had been in operation for several years before anyone from the claimant's comparator group had started to work for the respondent. It was not just that the comparators had longer service; it was the time at which they happened to have started that service. The claimant was seeking to adopt a highly selective and artificial pool for comparison. Moreover, the four males had not been affected by the change in 2011 because they had already reached the top of the pay band.

9.2.18 In any event Mr Lewis’ written submissions go on to consider the question of establishment of a group disadvantage for the claimant's group of female probation officers. Mr Lewis contended that from the claimant's own selection of that group it was clear that the difference in annual pay had nothing to do with sex and everything to do with the date on which the four comparators happened to start their employment with the respondent. Further, if those four males had been female they would have benefitted in exactly the same way because of their start dates. In fact it was the respondent’s case that numerous female colleagues with similar start dates to those males had benefitted in exactly the same way. 

9.2.19 Mr Lewis went on to note that the claimant contended that recruitment trends over the past 15-20 years in the Probation Service showed an increase in female employees to that of males, and that by reference to her male comparators there was the suggestion that males were clustered at the top of the band 4 pay scale. Mr Lewis did not accept this on the basis of the available data. It appeared that approximately 17 band 4 probation officers were male, which equated to approximately 15%. Table 5 on page 289D showed a relatively even spread of men across the various pay points within band 4. Further, only three (which would equate to 18%) of people at the top of the band were men, so that the corollary was that the overwhelming majority of employees at the top of band 4 were in fact female (82%). Mr Lewis noted that the claimant contended that there were four men or an even greater number at the top of band 4. If it was four then no significant statistical difference was made to the analysis above. Insofar as the claimant contended that there were more than four men she was either mistaken or wrong, and had not proved her case. The data shown on page 289 of the bundle indicated that the overwhelming majority, some 70%, of those with longest service, that is over 20 years at band 5, were female; whereas 25% of those with least service (up to 12 years) were male. The claimant had not proved any statistical or other basis for asserting that female employees as a group earned significantly less than men.

10.2.3 In the circumstances of the claimant's case the delay of over four years clearly was a considerable delay. However, we need to consider the reasons for it. That includes, in our judgment, the uncontested evidence that whilst she approached her union at an early stage, the union advised a “wait and see” approach rather than giving the claimant positive advice about steps that she could take herself. The claimant has not been able to afford legal advice. We discount the respondent’s suggestion that her brief involvement in the world of HR – in the context of a short-term administrative position – imparted to the claimant sufficient knowledge or experience so as to permit her to speedily proceed to enforce her rights. Whilst the claimant has criticised the respondent for failing to provide statistical data to her, we do not consider that to be relevant to the issue we are currently dealing with. That is because the claimant only began making her requests in February 2016 – some months after she had commenced the proceedings. It is not therefore a case where she was waiting for documentation in order to decide whether or not to proceed.

10.2.4 Despite the long delay, we conclude that the cogency of the evidence has not been affected. There has been no significant factual dispute in any event. In terms of the availability of documentation, it would appear that the only person potentially prejudiced by the delay has been the claimant herself in terms of statistical evidence which she had hoped to obtain to support her case. It is not a case where the respondent has been prejudiced in its defence by the lack of documentation it would seek to rely upon.

10.2.5 In terms of prejudice overall, we take the view that a decision to extend time would only prejudice the respondent to the extent that it is required to defend a complaint that otherwise would have been struck out. It is not and has not been prejudiced in the way in which it has actually had to defend the complaint. The reality, of course, is that we are considering this point not as a preliminary issue but at the conclusion of a two day hearing. The prejudice to the claimant in not allowing an extension of time would be far greater as she would have no opportunity to have this significant part of the claim tested on its merits. Accordingly our decision is that it would be just and equitable to extend time to the date of actual presentation of this claim on 4 November 2015.

10.5.2 Dealing first with the alleged disadvantage of less annual pay, we find that we are reliant on the statistics which have been provided. As recorded in paragraph 5 above, the claimant’s quest for statistical information has been fraught and clearly has caused her great frustration. Bearing in mind that the Tribunal cannot “step into the arena”, we believe that by granting (on their merits) the Claimant’s applications for specific disclosure, the Tribunal has done all that it can to assist the Claimant. That has not resulted in provision of the type of data which the Claimant hoped she would receive. Whilst it is not an ideal situation, we take the approach that we have to decide the case on the material before us, including such statistical information as we now have. It would be an extreme step to draw the inference which the claimant invites us to which, if we are permitted to paraphrase, is that the respondent has deliberately failed to disclose statistics or other documentation that it has with the intent of depriving the claimant of a proper opportunity to have her claim adjudicated on its merits. Even if we were to make that inference (which we do not) the claimant would then be inviting us to simply accept her assumptions or suspicions unsupported by documentary evidence. That is an approach we cannot adopt.

The Quest For Truth in a Post Truth World

Here in probation, we know a lot about 'reform' and in particular how it's destroyed a gold-standard public service. Clearly the new head of HM Courts and Tribunal Service in her first blog hopes for better things and in particular, her focus on 'truth' seems both refreshing and dare I say, a little naive?  

We're changing for a purpose - and listening too

As autumn begins, I wanted to take the opportunity to reflect on what I’ve learnt since I started as CEO of HMCTS last November. One of my main reflections is that we have not talked widely enough yet about our reform plans; but more importantly, I don’t think we’ve listened enough, or given enough ways for people who care about the system and how it works to help shape its improvement. I’d like to change that; and my own discussions and engagements on Twitter and elsewhere have shown that there’s a great appetite for this, but also much more we need to do to hear what’s being said.

So, to begin with, I propose to write a set of blogs that outline what we need to do, what we’ve done so far, what our plans are, and how to get involved in shaping HMCTS’s reforms for the future. My first, here, is focused on my first-hand observations of our courts and tribunals system, its strength and value, but also the deep challenges it faces and the reasons why I believe only radical reform can make it flourish for the future.

But to begin I want to say something more about why I am motivated to do this job.

I believe passionately that we need – now more than ever – a justice system that leads and inspires the world. Wider recent events (in particular, talk of a ‘post-truth world’) have, for me at least, made this underlying drive stronger and stronger. The justice system exists to pursue that slippery creature – the truth – and to use it to protect people from wrong.

Of course, as anyone knows who has compared the realities of the system to the perfect, tied-with-a-bow Agatha Christie resolutions of fiction, the truth is rarely found in its entirety; and an adversarial system comes at it differently from a continental inquisitorial one. But the endeavour is always to sift and weigh the evidence with integrity, to hear both sides of the story clearly and powerfully, and to get as close as possible to a just result that is not based on emotional sway or prejudice.

That hunger for truth – seeking after it, even when it is elusive – is the foundation of our freedom. The justice system is the means by which the truth sets us free.

So, I’m proud and privileged to do this job. Delivering the best possible courts and tribunals system seems never to have been more important. Ever since I started, I’ve had the opportunity to visit courts and tribunals in every region and in every jurisdiction (setting and keeping a personal goal of making at least one visit a week). On every visit, I’ve sat down with people – citizens using courts, staff, judges, magistrates, barristers, solicitors, volunteers, police and other partners – and discussed our service as it stands and our reform programme, asking them what they want to see from HMCTS in future.

I knew when I started that I was taking on both a challenge and an opportunity. The Lord Chief Justice and the Lord Chancellor had just published their joint statement setting out the overarching plan for reform (if you haven’t seen it, it’s a good summary of what’s in the reform programme).

I started in the job convinced by what my partners and predecessors told me about reform, but what I’ve learnt on my visits has made me even clearer on why it is needed. I’ve been consistently impressed by all those who work in the courts and tribunals I have visited – judges and court staff alike are passionately committed to what we do and want to make it better. But I’ve also seen the problems we have with poor IT, staffing that doesn’t match the demands of what they are asked to do and tired, dispiriting buildings. Although everyone I meet is dedicated to serving citizens well, it’s in the context of a system that feels long, slow and complex even in simple matters and is hampered by creaking paper processes that are hugely labour intensive, meaning other things suffer and errors multiply when staff are short. At worst, these things can make us look indifferent to other people’s time and trouble.

Out on visits, I’m often told by judges, magistrates and lawyers that local court staff work hard and do an impressive job under the circumstances, but that HMCTS as a whole doesn’t seem to be making it easy and is not always trusted to deliver well. In my view, we’re reaching the limit of the change we can make by good people in local courts working harder and trying harder. We need to make HMCTS more, rather than less, than the sum of its parts by making more fundamental change.

We often talk as though this change is all about IT, perhaps because that’s easy to explain concretely. We do of course need to move away from the paper-go-round and the endless re-keying of data from one ancient system to another, with all the attendant risks of mistakes. But it’s just as much about different ways of doing things, like using modern, professional approaches to update people on their case automatically, or make sure phones are always answered promptly and helpfully. It’s also about changing our attitude to what is ‘good enough’. For example, not accepting that it should be normal for cases to be scheduled and listed at times when parties cannot attend, or to drop out of lists repeatedly. It’s about using space well so that we can have fewer but better buildings, which are maintained properly, have the right facilities, and look smart and professional – reflecting the value of what goes on in them rather than undermining it.

The programme of change that my HMCTS predecessors and the judiciary developed together – and that we are now delivering – is one of the boldest plans in Government. It is about making the system work better, both by addressing a whole set of inefficiencies and failures and by giving people some entirely new routes to justice.

As I say, it goes well beyond IT, extending to people, skills and capabilities; to judicial ways of working (on which the judiciary lead); to our estates and to how HMCTS is organised as a whole. It involves a £1bn investment in return for saving some £250m a year by the end of the programme. Everyone who works in the system knows that there are many ways the courts can be run more efficiently and effectively, but big, up-front investment is needed to make real change.

Over recent years, we have had to tighten our belts – and people have worked hard to try to do so with as little detriment as possible. But fundamentally we have been trying to save money while using the same old inefficient systems, running more and more parsimoniously, and I think we are at the limit of what we can achieve that way. The pressure to be more efficient is not going away; but the reform programme gives us a chance to invest seriously in upgrading the way we work, so that we can deliver some ‘true’ efficiencies and genuinely have a better system that costs less, is sustainable, and is shaped by the needs of those it serves. The agreement we’ve secured with HM Treasury also – absolutely critically – means that every penny we receive from the sale of buildings will be reinvested in courts and tribunals.

Some elements of the reform programme are contested, particularly the details of how we might use our buildings better. Wholly new routes to justice – like the online court, as proposed by Lord Justice Briggs – also attract debate. On these, the most important thing we can do is to work openly and collaboratively with all who are interested (not just with the senior judiciary, though their support is unstinting, essential and welcome) as we change. We want to work with a much wider group of those interested to develop plans, test and try a wide range of new approaches and learn from trials and feedback.

I’m acutely conscious that there are still many people working in the system who haven’t seen or discussed the wider plans for HMCTS reform, or had a chance to shape them. Indeed, the recent debates on flexible operating hours made it clear that many people thought it was the main, or even the only, change we were proposing to make – and that we were focusing on that to the exclusion of all the rest. That debate has shown me that we need to do better at inviting and then listening to debate on the more difficult elements of reform (and I will have more to say in later blogs), but also to do better at explaining the rest and inviting suggestions and contributions, so that people do not mistake level of controversy for level of importance.

Other elements of the plan (most of them, in fact) attract almost no criticism in principle – very few people argue in favour of retaining paper-based processing, or argue against allowing people to track the progress of their case more easily, or improving systems for scheduling and listing. I do, though, get challenged on whether we can execute the plan well – what will make this more successful than Government (or even court) reform or IT projects of the past?

So, next week, I’ll set out more about the progress we are already making; and what has already changed for the better and how. The steps are small but they are a good harbinger of what is to come; and they begin to show (in deeds rather than words) that we can deliver the change we all want.

If you’d like to find out more about HMCTS reform, or share your views on how it should be shaped, please leave your comments below or send them by email to us. We are also considering more engagement activities for legal professionals and I’ve been asked to consider putting on an event on a Saturday, you can email to register your interest; if we get enough takers in principle we’ll set one up.

Susan Acland-Hood
CEO HMCTS