Saturday, 24 March 2018

Time to Ponder

It's been another week of ever-more-damning evidence concerning the TR omnishambles and rumours are swirling about plans by the MoJ to end the CRC contracts early and re-tender. Despite government bailouts, 14 of them are declaring they are still losing money and it's clear something has got to happen - the question is what? 

Carve the contracts up into bigger chunks and dish them out to the big boys like G4S; hand them over to Police and Crime Commissioners; amalgamate the lot with NPS; or complete a circle and do something really novel by integrating them with Youth Offending Teams under local government control? It's definitely going to be very interesting to see how the government decides to try and dig themselves out of the nightmare hole TR has become.

While we ponder on all this, there's probably time to consider what chaos is reigning in other parts of the criminal justice system. In the legal profession all the talk is about a new book just out by a secretive blogger:-    

How the law is broken: If the criminal justice system were the NHS, it would never be off the front pages

I am a barrister. I do not have a CV bursting with the great and weighty cases of our time. I profess no particular specialism or expertise in my field. I am not an academic. I am not a jurist, a philosopher, an historian or a scholar. I am as much a stranger to the gilded upper echelons of the legal system as they are to me.

But I have spent the best part of a decade prosecuting, defending and advising on behalf of my fellow citizens. And what I have seen is that despite the noble principles underpinning the system, despite its international prestige, its intellectual craftsmanship and the very real blood, sweat and tears spilt in its ponderous cultivation, the criminal justice system is close to breaking point. 

Access to justice, the rule of law, fairness to defendants, justice for victims – these fine emblems which we purport to hold so dear – are each day incarnated in effigy, rolled out in the Crown and magistrates’ courts and ritually torched. 

Denied justice 

Serious criminal cases collapse on a daily basis because of eminently avoidable failings by underfunded and understaffed police and prosecution services. 

The accused and the alleged victim can wait years for a trial, told their cases are “adjourned for lack of court time” for a second, third or fourth time – notwithstanding the brand new courtroom, built at significant public expense, sitting empty down the corridor due to slashed court budgets. 

The wrongly accused wait until the day of trial, or perhaps for eternity, for the state to disclose material that fatally undermines the prosecution case. Defendants can find themselves represented by exhausted lawyers able to devote only a fraction of the required time to their case, due to the need to stack cheap cases high to absorb government cuts.

Some defendants are excluded from publicly funded representation altogether, forced to scrape together savings or loans to meet legal aid ‘contributions’ or private legal fees, failing which they represent themselves in DIY proceedings in which the endgame is a prison sentence. The bottom line is that victims of crime are denied justice, and people who are not guilty find themselves in prison. 

And what astounds me is that most people don’t seem to care. Or even know.

Not newsworthy 

On the day after a parliamentary report published in May 2016 began with the nine damning words “the criminal justice system is close to breaking point”, not one single newspaper thought it more newsworthy than repetitive scare stories about migration or, in one case, a confected “scandal” over Britain’s Got Talent. 

When the MP Karl Turner tabled a parliamentary debate over the parlous underfunding of the Crown Prosecution Service (CPS) in January 2017, his litany of sobbing CPS staff and collapsing prosecutions – the things that we in the courts see every day – was attended by a meagre handful of MPs, and met by a virtual media blackout. 

When the courts upheld government initiatives to deprive the wrongly accused of their legal fees, there was no clamour. Just deafening silence. 

If the criminal justice system were the NHS, it would never be off the front pages. I find it impossible to reconcile this collective indifference, because it is plain that innately we all do care. We know that from the green ink letters to the editor when a paedophile gets a ‘soft sentence’ or ‘early release’ from prison, or the police fail to investigate serious allegations of sexual abuse or, worst of all, when the wrong person is convicted. 

A working justice system isn’t a luxury 

We know from popular culture – from our Serials and Making a Murderers and our Innocence Projects – that the ideal of justice, and in particular criminal justice, can be perhaps our greatest unifier. But something somewhere has clearly gone wrong. 

I think it’s traceable to the failure of the establishment – and us, the professionals in the system – to properly explain to the wider public how the criminal courts work, why they work the way they do, and why that is a good or bad thing, which has led to a catastrophic dissonance in public understanding. 

What a jury, or what the public, gets to see is but a pinhole view of the system. There is far more happening behind the scenes, or unreported in magistrates’ and Crown courtrooms, closeted in comfortable anonymity and about which the people we serve simply don’t know.

A working criminal justice system, properly resourced and staffed by dedicated professionals each performing their invaluable civic functions, for the prosecution and the defence, serves to protect the innocent, protect the public and protect the integrity, decency and humanity of our society. This should be a societal baseline. Not a luxury.

This is an edited excerpt from ‘The Secret Barrister: Stories of the Law and How It’s Broken’ (£16.99, Macmillan)


It's always worth reading Rob Allen's take on things and here he is writing on the 16th March following David Gauke's appearance in front of the Justice Committee recently:-

The Little Things that Give You Away

I’ve forgotten the term for when people say or do seemingly inconsequential things which reveal some deeper and more inconvenient truth. I’ve been struck by three in criminal justice this week.

Let’s start with the judge who gave an 83 year old man with prostate cancer a 14 month prison sentence for contempt of court arising from a bitter divorce. Of its kind it was a serious offence. When I suggested on twitter that there must be a better alternative than prison, one lawyer commented that the case involved “numerous, persistent, contumacious breaches of court orders, compounding a determined failure to engage with original proceedings. It can be a real problem in the family court”. Another said “Frankly I'm more sympathetic to most burglars I have met”.

Anyway it was a bit in the sentencing remarks that struck me. “Nobody” the judge said “wants to see a man of that age going to prison unless it is genuinely necessary.” Very true. But isn’t there a troubling implication there that it might be okay for younger, fitter men to be locked up in the absence of a genuine necessity. Maybe I’m reading too much into it, but the case strengthens the argument – recently made by Oxford sentencing experts Julian Roberts and Lyndon Harris for a Penal Audit: “a cross-party examination of the prison estate with a view to determining whether there is any consensus about the proportion of prisoners who could have been sentenced to a community-based sanction”.

The second giveaway, is the Justice Secretary’s evidence to the Justice Committee last week. In the course of questioning about the size the prison population - its not the metric on which he wants to be assessed, David Gauke told MPs “clearly, if prison numbers were stable or falling, it would give us scope to deal with some maintenance issues". Because prison numbers didn’t rise as normal in the first two months of the year “it enables us to undertake repairs and so on”.

Again, that sounds okay until you realise that the minister is in effect admitting that the ability to provide acceptable living conditions requires a fall in prison numbers - or a buffer in the system as he put it. He is not talking about the space to apply a new lick of paint but dealing with squalid cells without emergency call bells, and hundreds of broken windows. As for meeting a key international norm observed by prison systems in many much poorer countries - keeping remand and sentenced prisoners separately - we are nowhere near in England and Wales.

The third revelation this week came on youth justice. The MOJ told the Justice Committee that the two new pilot secure schools they are building will offer a therapeutic environment where education, healthcare & physical activity are key; this will distinguish secure schools from current youth custody provision & its predecessors. Really? My initial response is that it's insane to set up these new centres at the same time as the local authorities are having to close some of their facilities for disturbed young people in communities throughout the country.

Actually that’s exactly what Tony Blair said 25 years ago when Secure Training Centres were first proposed- though it didn't stop his government continuing the insanity. Secure Children’s Homes are now seldom mentioned as part of the youth custodial estate. They should be its cornerstone.

Rob Allen


  1. I think it's Freudian slip he's looking for in his first sentence. As for secure schools, isn't this merely a rebranding of the borstals that gave us the screenplay for Scum?

  2. If, as seems to be the persistent Tory claim, "reoffending rates remain stubbornly high", then how about radical non-intervention - a national service simply monitoring those who have committed the more serious offences, and leave everyone else alone. Invest the saved £bns in local authority social workers, housing & mental health services to deal with the needs-led crises of others.

    1. The Tories aren't interested in any approach that might actually work because that would destroy their reputation of being tough on crime.

    2. Radical non-intervention was developed by Edwin M. Schur as an alternative way of dealing with juvenile delinquency. 1973

    3. There are swathes of research about ‘what works’ and rehabilitation as an important part of the justice system. The Tories are not instead in probation and rehabilitation which is what actually reduced reoffending and prevents crime. When the Tories successfully complete their plan of removing all remaining probation/rehabilitation infrastructure then these evil left-wing theories and approaches of state-funded justice and rehabilitation will finally be eradicated.

    4. * interested not instead !

  3. Something has to happen with probation services, it just can't be allowed to continue in the state it is now in. I don't say that because of the chaos faced daily by staff and clients, but because every inspection or inquiry by a parliamentary committee points to failure, and if the contracts were allowed to run to their end the only solution would be renationalisation. That's just acceptable to the Tories.
    So re-tender and mix things up a bit? Personally I feel that would just bring more of the same, so a more radical approach has to be found.
    The Tories must now realise that extending supervision to the under 12mths has been a very expensive mistake. It's added huge expense to the probation bill, and brought no resolution to any of the issues that were preached in the rethoric used to privatise. Infact its only speeded up the revolving door for the under 12mths, and forced barriers with the third sector reducing the amount of support available for those short term prisoners on release.
    So I'm not at all sure what the next move will be, but I don't think it will be simply re-tendering.
    Someone noted on this blog the other day that Narco had been awarded a contract for accommodation for people on bail and leaving custody, and I thought that a very interesting move. Would that be the way forward? Remove some of the responsibilities and obligations that are inherently associated with probation services, and contract them out individually? That of course would further dilute the service and make probation officers really just parole officers policing licence conditions and remove the social worker ethic completely.
    Or perhaps private companies will be allowed to operate on a type of franchise model, selling off parts of their contract?
    I think the next move will be interesting, but I doubt very much it'll be good one.


  4. There could quite easily be a similar book on probation, the so called ‘hidden arm of the CJS’. Probation workers are weary and the unions long dead. There are a lot of good Probation Officers and interventions and supports that do reduce offending and improves lives, but the Tories are not interested. TR has been a shambles and the Tories are not interested in Probation and rehabilitation. PCC’s for probation would be as bad as CRC’s. We’ll never be joined with YOS as this would mean admitting DipSW and CSQW should of never been replaced by DipPS, DipPP, PQF and PQiP.

    Probation is a danger to the Tories because it’s the proof of Tory mismanagement of the MoJ and CJS. When you put it all into perspective, the MoJ gave CRC Probation £300 million to line it’s pockets and CRC’s are still failing. NPS Probation get cheap laptops so it can reduce office space. Before this it spent £500 million on IT under Labour rather than invest in Probation Officers and pay them properly. The CRC’s have already reduced the workforce and office space so we all know that’s coming next to the NPS.

    Probation has been dying a slow death since TR. £26 million on agency staff is appalling. The ‘3 E’s’ have been disbanded and the current agenda is OMiC. Custody probation officers will soon be holding all custody’s cases until release. The elephant in the room is what happens to all the community Probation Officers and their laptops when there aren’t enough cases in the community to supervise. Maybe probation is finally about to be put down. Time to refresh the CV!

    1. Probation workers are weary and the unions long dead. The unions are Probation officers and sadly they don't have any clue on what their role is as a union we are led by the inept incompetent makes you wonder what skill sets PO really has left in todays requirements for the role.

    2. The heads of Napo and Unison are not Probation Officers. The real probation with probation is it’s leadership and senior management who have destroyed and allowed probation to be destroyed over the past 20 years. Most PO’s nowadays are highly skilled professionals in box ticking, speed typing, repeating what the computer says, pretending to be police constables, and using phrases like “in my opinion”, “risk management”, “breach” and “recall”.

  5. Wouldn't re-tendering the contracts mean current providers being paid off for the remaining contract period plus possible compensation?

    1. Grayling inserted a clause to deter/prevent a potential Labour Govt reversing his handiwork whereby CRC owners would be compensated for the entirety of the initial contract period (7yrs), which expires in 2022. I guess it depends what the current secret negotiations are cooking up. CRC mantra is "more cash, more cash, more cash" - & they have a strong hand...

      Never ceases to amaze me that in a pn allegedly free Western democracy there are so many secret, backdoor, confidential, sensitive issues that the nation is excluded from - even though it has a direct impact upon their employment, freedom or well-being; and the State uses our money - without scrutiny or accountability - to fund their private, pet projects. Feels very familiar, kind of like the vivid pictures the Tories paint of corrupt regimes.

    2. Or they could measure the contract total CRC fails and offer them a free pass to walk away . Oh so much for a wish they will be looking how to fence off more cash back handers in a settlement to be collected by out of work ministers later on.

    3. Why would they want to hand contracts back when they get paid for failure? CRC have provide no interventions, have shed most of the staff, have been humiliated by inspectors and exposed by panorama. BUT THEY STILL RECEIVE HUNDREDS OF MILLIONS OF POUNDS FROM THE GOVERNMENT!!!!

    4. Most CRC ‘rate card’ interventions are paid for starts rather than completions. It’s a licence to print money.

    5. Truth is private companies carrying out public service contracts are in a very comfortable position.
      They "carryout" work on "behalf" of the government and take all the spoils, but only doing work on "behalf" of the government means you're not the real boss and the buck stops further up the food chain.
      They have the government over the barrel.

  6. I was using my opinion 30 years ago . The whole point of probaton officers is that we should be skilled enough to have an opinion !

    1. But in those 30 yrs they've cut training & qualification down from 3 yr full-time degree to 2 yr full-time diploma (allied to social work theory) to in-post18 month NVQ + 2 weeks' academic cramming.

      No time or desire for professional opinion.

    2. In my opinion, the current trend of probation box-tickers are 23 year old females fresh out of uni. Not all, but the vast majority. Most are not competent to have an opinion on the lives of others. With 15-18 months training and a probation NVQ I see why they spend their time clarifying they're not stating fact, and that what they're about to say is very subjective. The way Probation recruits and trains is a huge problem, and credible ongoing development is nil. I also see why they hide behind phrases like “my manager said”, “MAPPA said”, and “the risk assessment said”.