The Academics Speak Out 2

Continuing with another submission to the Justice Committee from the world of academia:-  

Written evidence from Rob Allen (TRH0071) 

1. I am an independent researcher and consultant and co-director of Justice and Prisons (www.justiceandprisons.org). From 2005-10 I was Director of the International Centre for Prison Studies at King's College London. From 1998-2006 I was a member of the Youth Justice Board for England and Wales and was a Specialist adviser to the Justice Select Committee from 2007-10. I have undertaken research on Probation in the UK and abroad. There are three areas within your terms of reference covered in this submission: the contractual arrangements between the Ministry of Justice and the 21 Community Rehabilitation Companies; the impact of the reforms on sentencing; and a potential model for the future. 

Contractual Arrangements 

Failure of Due Diligence 

2. It is clear that something seriously has gone awry with the contracting process with the result that the number of cases allocated to each CRC is very much lower than expected. So badly botched are either the contracting or management arrangements that the private community rehabilitation companies complain simultaneously that they have too few cases and that caseloads are unmanageably high. 

3. A key alleged benefit of outsourcing is that risk is transferred from Government to the provider. The CRCs should normally therefore have borne the consequences of the reduced volumes. The MoJ and CRCs say that the lower volume was not foreseeable. 

4. The Government also say that each CRC has a much higher proportion of fixed costs than was foreseeable. “This results in too much of the Fee for Service payment being changed when volumes change, when more of it should remain fixed”. 

5. On the face of it this looks like a failure of due diligence on the part of the CRCs. It was alleged in evidence to the Committee in March 2017 that the CRCs were misled. This is a serious allegation that should be investigated as part of the Committee’s inquiry. 

Contractual Failures

 6. In addition to receiving more than £30 million to correct the problems with the contracts, CRCs have been allowed “to re-invest contractual deductions in key areas of the business and improve services”. This appears to mean no negative consequences resulted from contractual non-compliance. This is in spite of the fact that the MoJ claim that the contracts “contain robust provisions requiring each CRC to ensure that it employs a sufficient level of competent and appropriately trained staff. We continue to closely monitor this as part of our contract management and assurance process”. 

Adequacy of the Contracts 

7. Because of commercial confidentiality, relatively little is known about the contracts. It is known that contracts do not specify that CRCs must maintain staffing numbers at a particular level and do not provide CRCs with an option to terminate the contract, (although they require Exit Plans to be in place and maintained throughout the life of the contracts.) As an oddity, I understand that the contracts require CRCs to provide suitable office accommodation for MoJ staff who are responsible for monitoring the contract. Piecemeal knowledge about the contractual arrangements does not allow sufficient scrutiny of their adequacy by Parliament. 

Conclusion 

8. The weaknesses of the contracting process and resulting arrangements calls for some new form of oversight and accountability for the MoJ. Alongside the problems with CRCs, the failings of their efforts to make arrangements for Electronic Monitoring suggests a systemic and institutional failure which needs to be addressed from outside the Department. Some form of “special measures”, should be introduced with oversight from the Public Accounts and Justice Committees. 

Relationship with Courts 

9. Part of the reason for amending contracts was that numbers on court orders have been lower than anticipated. There are a number of reasons why the numbers of community orders have fallen but two are these .As the Magistrates Association have admitted, the demands of speedy justice increasingly mean that JPs have inadequate information about the people they sentence. A senior CRC manager put it more bluntly to inspectors: “The push towards same-day sentencing has been devastating. It’s all about getting a report and offender ‘done on the day’, not about getting the right outcome.” The West Mercia inspection report paints a highly dysfunctional picture. Only half of eligible and suitable offenders get sentenced to programmes most likely to reduce their re-offending. Some of those the courts do require to participate are ineligible or unsuitable. While the courts seem to rush to judgment when sentencing, cases returned to court because of a breach, face waits of up to six weeks at magistrates’ courts and three months at the Crown Court. 

10. Until relatively recently, courts would be content to adjourn a case for two or three weeks to obtain a comprehensive social inquiry report to assist their decision-making. There is now simply not enough in the way of core information available to them in many cases. Justice Secretary David Lidington has been struck by the fact that less than one per cent of all requirements started under a community or suspended sentence order are Mental Health requirements. Even where such interventions may be available, the time needed to make the arrangements often is not. In West Mercia inspectors found that “the proportion of court reports produced on the day of sentence in magistrates’ courts had increased from 47% to 75% over the past 18 months. This was still short of the national target, which required a further 15% to be produced either on the day or in a short written format.” 

11. The pressure on reports predates the Transforming Rehabilitation changes, but but the fact that since privatisation courts do not have direct contact with the Community Rehabilitation Companies (CRC’s) has not helped raise their knowledge about alternatives to prison. All of the liaison goes through the National Probation Service. There is a reason for that. Now that sentences are supervised by private companies, sentencing decisions have taken on a commercial dimension. The Guide to Judicial Conduct makes it clear that the requirements of a Justice’s office and terms of service place severe restraints upon the permissible scope of his or her involvement with any commercial enterprise. If this is getting in the way of courts being aware of what sentencing options entail, the restraint needs to be modified in some way. The current situation is absurd. 

Conclusion 

12. Magistrates and Crown Court Judges Sentencers need to be better informed about community based supervision options. Adequate pre-sentence reports need to be available and opportunities provided for sentencers to make visits to community based programmes. The respective roles of the National Probation Service and CRC’s in both these areas needs to be reviewed. 

Future Model for Probation 

13. The privatisation of probation has been a mistake at every level. As a small example, CRC’s now seem to charge organisations who benefit from offenders’ unpaid work. In West Mercia “unpaid work staff complained that they were not told where the money went, and so they could not answer when the beneficiaries of the work quite reasonably asked what happened to the charge they paid”. It is not surprising that “this had caused some local public relations difficulties”. There must be serious questions about the desirability of commercial involvement in this area of public policy provision. 

14. Nevertheless, the reality is that with some crutches from the MoJ review, the arrangements are likely to limp on until 2021 but unless there is a drastic improvement, something different will be needed then if not before. In London, the Mayor’s Office wants to join the oversight arrangements of the CRC “with the intention of devolving the full contract and commissioning responsibilities once the current contract ends”. If performance in the capital does not improve, maybe that should happen sooner. A more genuinely local approach rooted in Justice Reinvestment is surely the next chapter for probation after this tale of woe. 

November 2017