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