If PCCs Were in Control

I notice that the PCCs have submitted a bit more evidence to Bob Neill's Select Committee on why things would be better if they were in the driving seat:-

Supplementary written evidence from Association of Police and Crime Commissioners (TRH0109)

Thank you for your recent letter following my participation at the Justice Select Committee on 27th February. Please accept my apologies for the delay in responding to you.

I am always delighted to be called to give evidence to the committee and remain committed to seeing how PCCs can play a greater role in overseeing the criminal justice system and taking forward justice devolution.

Oversight and Accountability

In your letter you posed the question “If Police and Crime Commissioners took on only one of the following roles:- oversight and accountability, a decision-making role in financing services or a role in inspections - which would I prioritise, and how could these distinct responsibilities be balanced?” 

My response is that as Chair of the Criminal Justice Board in Hertfordshire, I am the only person around the table with no operational role. Giving a greater role to the oversight and accountability of the criminal justice system would help to bring the disparate parts of the system together around a shared plan, allowing for the focus and targeting of resources more effectively and the achievement of shared outcomes. Currently agencies work in silos, working to their own organisation’s plans with often conflicting priorities and an absence of shared outcomes, leading to a narrow focus on a particular part of the system. Broadening PCCs’ role to have greater oversight and accountability across the end-to-end system and particularly around commissioning offender services, would lead to better outcomes for victims, witnesses and offenders.

Currently the public is largely absent from discussions in relation to the criminal justice system. There is a need to hear their views and use their experiences to help shape and improve the system. In many areas, like Hertfordshire, PCCs are chairing their local Criminal Justice Boards, which has helped to improve the visibility and accountability of criminal justice agencies at a local level, but this needs to be formalised across all areas of the justice system. Extending the role of PCCs could assist with this.

It is also clear that a whole-system approach is required around offender management, including resettlement services. Given PCCs’ success with the commissioning of appropriate victims’ services in a locality, there is an opportunity to extend their role to include decision-making in financing services for short-sentences, young, and women offenders. By doing so, it will help to: bring about better end-to-end service delivery for offenders; create incentives for local areas to invest in preventative services and alternatives to custody; facilitate closer partnership working between agencies; and provide greater scope for innovative ways of reducing reoffending – something which is currently missing.

As local criminal justice leaders, PCCs are well placed to support the inspection process and often have sight of where things are going wrong in the system long before a formal inspection takes place. PCCs would be able to complement the existing inspection regime under HM Inspectorate of Probation in:

• providing assurance to Ministers and the public that adult and youth offending work is being delivered effectively;
• highlighting enablers and barriers to effective practice;
• making recommendations to improve the quality and impact of the work; and
• enabling improvement in the effectiveness of probation and youth justice services across England and Wales.

Sharing Best Practice

There are a number of opportunities to ensure that best practice is disseminated should PCCs be given a role in funding probation services. As standard practice Police Transformation Grants, including the recent Home Office Violence Against Women and Girls (VWAG) Fund, require recipients to share the learning and best practice from their projects across the country. If PCCs were to commission probation services, the Ministry of Justice could build these requirements into the Terms and Conditions of the grant.

PCCs are also able to make best use of their local and national networks, including the Association of Police and Crime Commissioners (APCC) as the membership organisation (and associated portfolio structure), and their local Community Safety Partnerships and Criminal Justice Boards to facilitate effective sharing of best practice.

Involving the Voluntary Sector

You asked how the voluntary sector should be involved, formally and informally, in delivering probation services and support going forward, and what changes could be made in the short term. Evidence over the last few years has shown that the current contractual arrangements and payment by results mechanism does not incentivise Community Rehabilitation Companies (CRCs) to use the voluntary and community sector and, in particular, disadvantages smaller organisations. CRCs are not paid for rehabilitation activity requirements, nor do their contracts incorporate early intervention and preventative activity, which is crucial to supporting efforts to reducing the number of people coming into the system. NOMS accredited programmes are now seen as the main or default answer and, as such, the voluntary and community sector involvement has reduced. Moving to a local commissioning or co-commissioning role would enable PCCs to engage with the voluntary sector and make best use of smaller, locally tailored place-based services and their skills, expertise and innovative methods to reduce reoffending. The voluntary and community sector are often best placed to provide local support to offenders.

In the short term, enabling PCCs to have greater oversight of the commissioning and decommissioning of offender services could support greater engagement with the voluntary sector as PCCs are able to draw on their extensive networks and cross county partnerships.

Geographical Boundaries

The final question you asked was around the challenges of cross-departmental working in the area of probation and how they could be overcome. All criminal justice agencies operate across different geographical footprints, which presents significant challenges in facilitating cross working. The consolidation of the Crown Prosecution Service (CPS) and Her Majesty’s Court and Tribunal Service (HMCTS) has resulted in fewer local areas, creating larger units. The CPS now operates across 13 areas (including Wales and London), HMCTS operate across seven geographical regions and has separately amalgamated court areas on a different geographical footprint to the CPS areas. The National Probation Service covers divisional areas and work alongside 21 Community Rehabilitation Companies working to super contract areas, and HM Prison Service operates on a regional basis. Police forces and PCCs work across 43 Constabulary areas. Locally, this has added significant complexity and fragmentation across the criminal justice landscape, with different agencies working to different boundaries and unable to commit resources or budgets to a single locality.

Moving forward, a realignment of criminal justice agencies’ geographical boundaries based around constabulary areas or existing collaborated areas, for instance, Bedfordshire, Hertfordshire and Cambridgeshire (BCH) or the ‘Eastern Region’ would allow for some level of co-terminosity and alignment of priorities and resources.

Cross working could also be greatly assisted by criminal justice agencies moving to a more thematic approach - for instance around reducing reoffending or special focus areas including domestic abuse, violence or hate crime that brings all the agencies together to focus on joint outcomes around vulnerable people. Giving PCCs a greater role would enable the criminal justice system to engage with those most at risk of offending, rather than those who have already offended which offers the greatest potential to lead to transformation of the criminal justice system.

March 2018

A Broken System 2

Back in March we covered news of a whistle-blowing book about to be published by the Secret Barrister and it's taken the legal profession by storm and featured in the Guardian's top 10 for several weeks. If only probation had spawned something similar. This from the Guardian:-   

The Secret Barrister review – a justice system that is utterly broken

Many people think barristers strut around courtrooms barking ‘objection’. It is as wrong as assuming the UK justice system can survive recent cuts

A war crimes trial is stopped because the government has privatised the supply of interpreters, and the company selected cannot present any who are qualified. Two women, in all likelihood repeatedly raped by their father as children, are humiliated, dehumanised and ultimately disbelieved in proceedings in which they did not stand a chance. Thousands of people every year are convicted of crimes by magistrates whose qualification for dispensing justice is filling out a form, passing an interview, doing some charity work and being willing to sit for 13 days a year, with 18 hours’ worth of training. A man whose innocence should have been easily established in court is convicted of sexual assault because relevant evidence was not disclosed by the police. And meanwhile hundreds of hardworking, dedicated professionals are toiling in near impossible conditions.

This is a portrait of the criminal justice system in England and Wales today, as seen by the Secret Barrister, a criminal advocate who keeps his identity a closely guarded secret so that, he argues, he can be unrestrained in his critique. And unrestrained it is. The book is in part a guide to the system – a reminder of how few of us understand it – and in part a first-hand account of the personal dilemmas facing someone whose professional life is spent in and out of crown courts, police cells and prisons. It is above all a plea to rescue a justice system that has become utterly broken.

“Hell” is the word used by one supreme court judge. “Despair” is the experience of another in the court of appeal. Over the last near decade of austerity, justice has endured the deepest cuts of any departmental spending in the UK. Whole areas of law, including family, housing, immigration, debt and employment, have been taken outside the realm of publicly funded legal representation, leaving some of the most vulnerable people at the mercy of a system that is designed to be incomprehensible to even the most highly educated lay person.

Since 2010, 258 courts have shut across England and Wales. Rape trials have collapsed because police and prosecutors – all victims of the same, sabotaging cuts – have failed to disclose key evidence on which a fair and robust defence depended.

Some of this will come as no surprise. As a former criminal barrister myself, I expected this book to communicate how little we value the people and institutions so vital to our liberty. But what’s so powerful about The Secret Barrister is its ability to connect the dots – from changes to something as seemingly mundane as criminal procedure rules, to the state of prisons – revealing a picture that is more a commentary on society as a whole than it is on robing rooms full of horsehair wigs. In one of its most effective passages, the author points to platitudes about putting victims first, now such a staple of government rhetoric, contrasting them with the actual preference of political leaders, which is to offer taxpayers one penny off the price of beer rather than invest the equivalent amount into a system without which rights can never be properly upheld.

How did we let this happen? The author argues that the lack of legal education in the UK has led a distressing number of people to believe that the work of a barrister involves “strutting around a courtroom barking ‘Objection’ while spinning deliberate lies to a jury as a judge in a full-bottomed wig twirls his gavel”. (None of these things happen in the courts of England and Wales.)

But political bad faith is also part of the answer. For instance, the claim in 2010 of justice minister Jonathan Djanogly that our legal aid system is “the most generous in the world” – I remember his words well, as I was the Guardian legal affairs correspondent at the time. It sounded wrong to me then, but is now, as this book makes clear, “demonstrably, palpably false”.

The Secret Barrister writes compellingly about issues as varied as the treatment of vulnerable victims in rape trials and the state of sentencing law – no mean feat. His style is a blend of pomposity and self-deprecation that is remarkably evocative of many characters at the bar. In seeking new allies, he tends unashamedly to appeal to the middle-class, school run mother or the junior doctor – the subtext being “it’s not only those poor black people who can get caught up in this stuff”. On the question of ethnicity – the hugely disproportionate appearance made by people of colour in the system, and the historical failure of the bar itself to recruit and nurture ethnic minority talent – the book is largely silent.

But at its deepest level, it is not about the criminal justice system at all. The Secret Barrister writes about our idea of ourselves as a nation, an England still so confident in its principles and workings of democracy and justice. When in practice it is now less of a model for others to aspire to than a dire warning as to what can go wrong.

The Secret Barrister: Stories of the Law and How It’s Broken is published by Macmillan. 

--oo00oo--

There are problems in every part of our criminal justice system. This, again from the Guardian, concerns the plight of solicitors in criminal practice:- 

Criminal defence solicitors may be extinct in five years, says Law Society

Cuts to fees mean legal system faces cliff-edge in England and Wales, profession warns

Criminal defence solicitors may become extinct in parts of England and Wales within five years, due to cuts to legal fees that have rendered the profession unprofitable, according to the Law Society. The strongly worded warning comes as barristers have begun refusing to take on legal aid cases and are planning mass walk-outs in protest at what they say is sustained under-funding of criminal trials.

The suggestion that defendants could soon be left unrepresented highlights the crisis of confidence in the criminal courts as even the lord chief justice, Lord Burnett of Maldon, complained in a speech on Monday about under-investment. More than 80 barristers’ chambers have now publicly backed the boycott of new legal aid cases and a Vigil for Justice demonstration, organised by the Justice Alliance, is to be held outside the Ministry of Justice on Wednesday 18 April.

Data unveiled by the the Law Society, which represents solicitors across England and Wales, shows those specialising in criminal work are an increasingly ageing cohort, with few lawyers joining the relatively poorly paid branch of the profession.

“The justice system is facing a cliff-edge scenario; criminal duty solicitors are part of an increasingly ageing profession, and government cuts mean there are not enough young lawyers entering the field of criminal defence work,” said the Law Society president, Joe Egan. “If this trend continues, in five to 10 years’ time there could be insufficient criminal defence solicitors in many regions, leaving people in need of legal advice unable to access their rights.”

In Dorset, Somerset, Wiltshire, Worcestershire, West Wales and Mid Wales, more than 60% of criminal law solicitors are aged over 50, the survey found. “The data shows that criminal duty solicitors are becoming extinct,” the Law Society said. In Norfolk, Suffolk, Cornwall and Worcestershire there are no criminal law solicitors aged under 35 who are practising. A map shows the ageing profile of criminal solicitors across England and Wales. The Law Society is concerned these trends may have a “catastrophic effect” on the criminal justice system, as criminal defence solicitors retire and leave a shortage of experienced practitioners.

Everyone has the right to free legal advice if they’re questioned at a police station. Advice given in a police station is not means-tested but the number of duty solicitors available to give advice is declining. In Southport, for example, there are only two duty solicitors, in Kendal and Windermere only one and in Hinckley, Leicestershire, just three. From May 2014 to January 2018 the overall number of practising solicitors rose by 7.8%, but the proportion specialising in criminal work fell by 9.4%.

“Twenty years without any increases in fees, and a series of drastic cuts, have pushed the criminal justice system to the point where lawyers can no longer see a viable career doing this work,” Egan said. “If a suspect cannot access free advice and representation, a fair trial would be jeopardised, and cases would collapse.” The government, he said, should “conduct an economic review of the long-term viability of the criminal legal aid system and ... guarantee that criminal legal aid fees will rise with inflation”.

In separate comments about the need to modernise the justice system, Lord Burnett said: “We know that many of our buildings are in a poor state. There has been over a decade of under-investment in maintenance, amounting to neglect. I have seen for myself the leaking roofs, broken lifts, faltering or broken heating systems, overflowing lavatories and much more. At the heart of many of the things that have led to an attrition of judicial morale are questions of resources. For many things – pay and pensions, investment in the estate – we depend on government, and on those I shall continue to press our cause.”

The Ministry of Justice said: “We are clear that we have enough solicitors to fulfil criminal cases and will make sure we continue to do so. Last year, we spent £1.6bn on legal aid, just over a fifth of the Ministry of Justice’s budget. This ensured legal support was available to those who most needed it - and this will remain the case. We are already working closely with partners in the legal system to review the changes we made to legal aid in 2012, to make sure they are delivering the efficiency and fairness we need.”

The Scandal of Prison Deaths

Despite the recent disingenuous announcement regarding prison officer numbers, there is still a massive shortfall brought about by Chris Grayling and there is no sign of the prison death rate reducing as this from the Guardian makes clear:- 

Five inmates die in seven weeks at HMP Birmingham run by G4S

Five inmates have died in the space of seven weeks at Birmingham’s outsourced prison, the latest of them allegedly killing himself in a week in which the Prison Officers Association and the Howard League for Penal Reform have warned of a prison system in crisis. Marcus McGuire, 35, was found dead in his cell on HMP Birmingham’s D-wing at about 9am on Tuesday, the Birmingham Mail reported.

The prison, run by G4S, is reportedly facing two improvement orders from the Ministry of Justice, addressing its levels of violence, hygiene standards and inmate care and treatment, including reducing self-harm. The prison’s director, Rob Kellett, said investigations into the deaths were under way and declined to comment on the specific cases except to say they were unrelated.

While it has the highest number of deaths in absolute terms, HMP Birmingham is one of the country’s biggest prisons. It does not appear to have been the scene of an unusual spate of self-inflicted deaths, such as happened last year at HMP Nottingham or HMP Wood Hill.

On Thursday, POA warned of a “crisis that has been created in the prison service”, citing a big fall in the number of officers since 2010 and soaring rates of self-harm, assaults and hospital attendances by inmates.

Frances Crook, the chief executive of the Howard League for Penal Reform, said figures released on Thursday showing a record high number of assaults in prisons were a “symptom of a prison system in crisis”. Four inmates were found dead at HMP Birmingham in March. John Delahaye was found dead in his cell on 5 March in a suspected suicide, days before he was due to stand trial for allegedly stabbing churchgoers in Aston, Birmingham.

Ricardo Holgate, 35, a convicted rapist, was found dead on 26 March, reportedly from a suspected overdose of a synthetic cannabinoid. Andrew Carr, 23, was found dead on 29 or 30 March after reportedly taking drugs smuggled via the toilet into his cell in the prison’s segregation unit, where there is supposed to be heightened security. Neil Black, 34, died on 31 March, apparently from natural causes.

Inquest, a charity that investigates deaths in custody, reported a further death at Birmingham earlier in the year, bringing the total so far in 2018 to six. It is understood the first death was from natural causes. Birmingham has the highest number of deaths of any prison in the year to date, followed by Manchester and Durham with four each and Lindholme with three, according to research by Inquest.

Kellett said: “Every death in custody is a tragedy and is always thoroughly investigated by the prisons and probation ombudsman. While the recent deaths at HMP Birmingham are believed to be unrelated events, investigations are ongoing and it would not be appropriate to comment further. We are absolutely committed to providing a good standard of accommodation and purposeful activity, and the safety of our staff, partners and those in our custody is our first priority. Where room for improvement is identified we work closely with the Ministry of Justice to agree appropriate steps.”

The MoJ improvement notices were issued in March, before the recent spate of deaths. A Prison Service spokesperson said: “We are clear that prisons should be places of safety and reform, and are working closely with G4S to improve conditions for prisoners at HMP Birmingham.”

On Thursday Steve Gillan, general secretary of the POA, sent an open letter to David Gauke, the justice secretary, accusing him of misleading the public by hailing the recruitment of 2,500 new prison officers. The letter pointed out that even with the latest increase, the Prison Service remained 3,789 officers down since 2010. “So the increase since October 2016 does not reflect the destruction to the service caused by austerity measures,” he wrote.

Gillan referred to safety in custody data, published by the MoJ the same day, that showed incidents of self-harm had increased by 11.2% in the year to December 2017, compared with the previous 12 months, from 40,160 to 44,651, and by 65.6% since 2010. Assault incidents had more than doubled in the past eight years and serious assaults had nearly trebled in the same period, the letter pointed out.

“These latest figures are nothing short of a scandal and ministers and employers must take responsibility instead of burying their heads in the sand and pretending a recruitment campaign is going to resolve this clear crisis that has been created by poor policy decisions,” Gillan said.

Kellett said every death in custody was a tragedy, adding: “While the recent deaths at HMP Birmingham are believed to be unrelated events, investigations are ongoing and it would not be appropriate to comment further.”

Kellett, who took charge of the prison in February, praised the work of the staff and added that they “work tirelessly to detect, intercept and confiscate contraband.”

“Since taking charge of HMP Birmingham in February, I have seen at firsthand the great job that our dedicated staff and partners do every day in challenging circumstances,” he said. “The safety of our staff, partners and those in our custody is our first priority. Where room for improvement is identified we work closely with the Ministry of Justice to agree appropriate steps.”

Too Many Suspended Sentences 2

I notice Rob Allen feels the tide might be turning as regards short prison sentences in England and Wales:-

   
More Council of Despair?

All’s not well at the Sentencing Council. Chairman Lord Justice Treacy has had to remind judges and magistrates to use suspended prison sentences only in the most serious cases which would otherwise result in custody – and not simply as a way of giving lower level community penalties more teeth.

Treacy - and no doubt the Ministry of Justice - fear that if courts continue to ignore last year’s guideline on the imposition of custody but do pay heed to a forthcoming one on breach, the result will be “a high volume of activated suspended sentences”. That means more pressure on the beleaguered prison system which has reported record levels of violence and self-harm in 2017.

More than one in ten suspended sentences are terminated early for a failure to comply with requirements and 18% for a further offence. While it’s not known how many of these cases currently go to jail, the new guideline is expected to urge activation of the custodial sentence unless it would be unjust in all the circumstances. The draft of the breach guideline tells courts to remember “that the court imposing the original sentence determined that a custodial sentence was appropriate in the original case”. The problem is that in many cases they haven’t and it wasn’t.

The Council and Probation service have cooked up a plan to stop suspended sentences being recommended in Pre-Sentence Reports (PSRs).  They’re proposed in about a third of PSRs and courts accept two thirds of the proposals. What will happen now? While the hope is that most suspended sentences will be replaced by community orders, there’s a risk that some additional custody may be imposed or even proposed.

Such unintended consequences would be nothing new for the Council. An independent review of its work by eminent criminologist Sir Anthony Bottoms has confirmed that two major guidelines - on assaults and burglary - have led to unexpected increases in the severity of sentencing, "which is bound to create anxiety among civil liberties groups”. The review is also critical of the Council’s failure, when drafting guidelines, to consider the relative cost and effectiveness of prison and other sentences in reducing re-offending.

The review makes largely technical recommendations about how the Council should both undertake and communicate its work in the future. There are good ideas here - a greater emphasis on personal mitigation in the guidelines, and a requirement that courts ask themselves "is custody unavoidable?" because sentencers may forget to do so.

Not surprisingly the Council has rejected the idea of opening itself up to a television documentary but it has promised to foster better links with academics, review research on the effectiveness of sentencing and engage more with stakeholders other than sentencers. An external agency will be appointed to examine issues of public confidence in sentencing.

Bottoms echoes several of the findings in the report I wrote for Transform Justice in 2016 -The Sentencing Council for England and Wales - Brake or Accelerator on the Use of Prison. He argues that a preoccupation with the prison population has blunted the impact of the Transform Justice report because “the current reality is that it would be politically very difficult for the Council, even if it wished to do so, to argue for a step change in the use of prison.” That may be true but does not excuse the fact that a body which could have curbed the unnecessary use of prison has largely failed to do so.

Actually, noises coming from the Ministry of Justice are more promising than for some time. Prisons minister Rory Stewart told Parliament this week that he will be looking at what more the Government can do to emphasise ​that a custodial sentence in the short term should be a final resort. He accepted there is a lot to learn from Scotland which has introduced a presumption against short prison sentences. Maybe the tide is finally turning?

Rob Allen

Napo at Work in Wales

I notice that Napo have submitted extremely wide-ranging written evidence to the Welsh Affairs Committee:- 

Written evidence submitted by Napo (PPW0027)

BRF05-2018

PROBATION ‘POST-TRANSFORMING REVOLUTION’

A submission to the Parliamentary Welsh Affairs Committee from Napo, the Trade Union and Professional Association for Probation and Family Court Staff – 6th April 2018

The Welsh Affairs Committee has invited evidence from stakeholders and interested parties in relation to the current state of justice provision across Wales, with particular reference to prison and probation services. Our brief is to give relevant comment on:

A. Staff shortages in the prison service (both in prisons and in the probation service) in Wales;

B. The effectiveness of Transforming Rehabilitation, Working Links and Community Rehabilitation Companies in Wales, how these services can be improved and whether there are any alternatives. Additionally, the Committee has said it would be interested to hear whether these support services are currently meeting the needs of offenders from vulnerable groups. For instance, in its last evidence session, the Committee was told that Transforming Rehabilitation has not been meeting the needs of women offenders;

C. The overcrowding of prisons and the potential for new prisons in Wales.

Napo is the recognised trade union and professional association for staff employed at all levels across rehabilitation, probation and the family court services in England, Wales and Northern Ireland. As such, we very much welcome the invitation to comment on the enormous challenges in the probation system since Grayling’s self-proclaimed “Transforming RehabilitationRevolution”.

We also make some observations on points A and C in that they relate to B; however, the bulk of our comments are focussed upon B.

We include some ideas for the Committee to consider about alternative models and how we could transition to these in a safe and sustainable manner that would increase accountability, efficiency and, most importantly, the quality of service to the public.

POINTS A AND C - PRISONS AND PROBATION

Many Napo members work alongside POA and PGA colleagues across the prison estate and have witnessed the deterioration of the service since 2010, specifically since significant budget and staffing cuts. Prisons are without doubt less safe and less effective since these cuts. The changes to probation that happened in parallel to these cuts and which were allegedly part of some integrated strategy from the MoJ, have had little tangible impact on prison numbers and pressures. This is probably largely down to them being as poorly planned, poorly tested and as reactive as the prisons cuts. These habits, alongside a chronic ineptitude for managing contracts, are the MoJ’s ‘hallmarks of chaos’.

A much-lauded part of the TR programme was “Through the Gate” (TTG), aiming to improve integrated and holistic support for clients upon release from prison. HMI Probation has identified the scale of this failure previously, labelling it as making no difference at best. This understates the negative impact on the professional morale of staff; the diversion of scare resource to TTG; and the added complexity of community support to offenders prompted by this failed model being a fundamental design flaw in the CRC contracts. (See more detail below).

One political reaction to the problems in prisons has been to abolish NOMS and launch the HMPPS. To date this has brought no tangible improvement for clients or staff, in prison or probation. It looks smells and sounds like NOMS under a different label, but with added mixed messages about greater integration of the probation and prison services.

Napo is engaged in on-going discussions about the Offender Management in Prisons (OMiC) strategy and we believe that it is too early to draw definitive conclusions. We welcome the principle of integrating rehabilitation and probation principles into the heart and soul of prison philosophy. Prison does not work.

However, wishful thinking isn’t enough when redesigning complex organisational systems. A huge, understated challenge involves the planned integration of more probation staff into prison-based teams. This generates additional practical HR challenges and highlights enormous cultural challenges. The probation and prison services have very different cultures. They are not opposite sides of the same coin but opposing magnets– forcing the positives of each together is physically impossible and merely releases the tension between both elements. Great care and caution are needed, as well as great vision and leadership to achieve cultural shift. Confidence that this is in place is limited when the HMPPS is still being led by TR’s chief engineers.

Napo has visited HMP Berwyn and have members working throughout the Welsh Prison estate. Clearly, HMP Berwyn is not overcrowded – indeed, difficulty recruiting staff is one of the reasons it remains under capacity. Recent issues there highlight that overcrowding is only part of the prison problem.

Napo’s view is that Wales can do better. Evidence from the Netherlands and Scandinavia show that a different approach is possible and realistic, if the justice system shifts holistically towards one focussed upon prevention and rehabilitation ahead of punishment. It is irrational that since the creation of the MoJ the number of people in prison has grown significantly whilst levels of serious crime have consistently fallen across England and Wales.

Hidden in the big statistics are disproportionate impacts upon some of the already more vulnerable in our society, suggesting prison policy multiplies social divisions instead of addressing them. This is acute amongst women, who are especially likely to be given short sentences, which have a huge and devastating impact on their families, as well as a disproportionate social and economic cost. Serious efforts to address the prison crisis requires breaking this vicious circle that has become entrenched since the creation of the MoJ two decades ago.

To have a serious alternative to prison we need to stabilise and re-enforce community rehabilitation and probation services. This means addressing the consequences of Grayling’s failed TR revolution. TR could have been a huge opportunity to divert investment into prevention and rehabilitation support but the dogma of privatisation combined with political incompetence and a dangerous rush to beat an election timetable meant this opportunity was not only wasted, but adds new short term recovery costs to putting things right before building a new, more sustainable model. However, a longer-term plan of diverting funding into prevention and community rehabilitation would, we believe, more than pay for itself socially and economically.

Core Challenges across Probation

a) Staffing shortages
Both the NPS and the CRC have serious staff shortages. Across England and Wales, there are more unfilled posts in the NPS than across the prison estate, although the HMPPS national recruitment drive has focussed more heavily on prisons (including macho multi-media adverts featuring riot control squads, petrol bombs and the previous Minister, that highlighted the contrasting cultures between the two services, and would not have encouraged many to apply for probation roles in the same organisation).

Stories from members trying to apply for posts in the NPS also shine a light into the Kafka-esque bureaucratic chaos in the NPS. The recruitment process is torturous, with online applications vulnerable to unstable IT. Security clearance processes are not aligned to recruitment processes, and can delay either starting dates or people being paid once they start. Trying to convert temporary staff into permanent contracts is also problematic. It is not unusual to take a year from application to starting, even where DBS checks are already in place.

In the Wales CRC 47% of jobs have been cut since the contract was awarded, many in front line posts. This has had a direct impact on standards and safety of provision. For example, in unpaid work staff shortages are a frequent reason for regular cancellations of workday assignments for clients.

This has a human cost as well as an economic one. For example, to complete their sentence and protect their employment, one client recently cancelled their only contact days with their child for three weeks in a row only to see each supervised session cancelled due to staff shortages.

The reason for the problem is rooted in the MoJ’s failed management of the TR split. The concept was predicated on staff being split roughly 30:70 between the NPS and CRC. This was based on little more than a hunch. Even before the actual share sale, after the CRCs had spent almost 9 months in public ownership, it was evident that the split was nearer 50:50, although we do not believe that contracts were adjusted to recognise this embedding a fundamental flaw into financial modelling. Napo was not allowed to see the budget split between the NPS and the CRCs at the point of the transfer but we believe the cost of nationalising the management of high-risk clients and managing risk allocation was dangerously under-estimated; whilst the flow of money into CRCs for managing clients was seriously over-estimated. This has undermined everything that has followed.

CRCs did not get the workflows and offender numbers required to meet contract projections, so they cut frontline staff. Losses on marginal contracts do not look sustainable. This has also impacted upon morale with, we believe, higher than average staff turnover. It is difficult for us to quantify this as the CRC does not readily have or does not want to share staff data, but we know from our own membership data that there is a clear trend. This is particularly worrying when high levels of consistent monitoring of clients is a core probation requirement.

b) Lack of progress on pay reform
Before TR it was recognised on all sides that the probation pay system was broken. The longer this has gone unaddressed the more obvious potential inequalities and indirect discrimination become to all. The cost could now sink probation unless it is fully recognised and the Treasury allows unions and employers the scope to negotiate.

The pay system assumed annual pay progression through a contractual range at around 3-4% p.a. A minimum 1% progression was contractually built into the system but the assumption from all sides was that it would be at least 3% and often higher. An average 4% would allow a probation support officer or probation officer to reach their rate for the job in around 6 years, progressing through a contractually binding 27% range.

Since 2010, progression has been limited to 1% and those already at the rate for the job have received no consolidated increases. The majority of PSOs and POs are still below the mid-point of their range, many having already been in post for over a decade. This presents evident and obvious age discrimination risks that unions have been pressing employers to resolve amicably. However, since the autumn of 2016 no negotiations have formally taken place, due to the Treasury refusing permission for talks to proceed.

This impacts on the NPS and the CRCs. If pay reform in the NPS drives up the value of PSOs and POs then CRCs fear a rush of staff leaving to work in the NPS, given their number of vacancies. This is currently prevented by the NPS not allowing staff to transfer on their existing salary but instead insisting staff start on their band minima – something that increases their recruitment difficulties.

CRCs have delayed pay reform negotiations because the contract margins do not give them scope to address the scale of the problem and are waiting for progress in the NPS, so that they can argue for further adjustments to the contract price. However, having had responsibility for these contracts now for over 3 years their legal defence is gradually evaporating along with union patience.

The critical barrier to pay reform seems to be the Treasury’s loss of trust in the NPS/HMPPS senior leadership’s capacity to manage budgets and therefore, pay reform. To a large extent Napo understands the reasons for this as they mirror our own loss of trust in the NPS management – highlighted by the shambolic 2017-18 pay round where a range of excuses were used at different times for giving NPS staff (a majority of whom are female) no increase because they had overspent on the prison pay budget (where the majority of staff are men).

c) Approved premises outsourcing contract failures
Despite high profile contract failures highlighting the importance of strict and close contract management and compliance, the MoJ has authorised hugely dangerous outsourcing contract for double waking night cover staff in approved premises. This contract, split between Sodexo and OCS, was due to start on 1 February 2018. In January, it was recognised that the contractors had not addressed a number of critical staffing issues so the risk of letting the contract was too great. They were given until the 1 March to address these. When unions met with MoJ officials and the contractors in February it was clear that none of these risks had been safely addressed. However, the MoJ allowed the contract to proceed. Risks include a 60-day leeway for staff who have not been vetted or who have not got the security clearance and numerous health and safety risks. These contracts are to manage incredibly difficult, complex and sometimes violent clients – not an area for a casual attitude to people’s personal safety/ It also amplifies the MoJ’s seemingly entrenched inability to learn from past errors in letting contracts before it was operationally safe to do so.

NPS systems failures

a) Shared Service Centre (SSCL) failures – taking the human out of HR
A MoJ pre-requisite for the part-nationalisation of the probation service was that NPS staff would be supported by the Shared Service Centre in Newport. In principle, this should not have been problematic. Unfortunately, fundamental differences between the terms and conditions of probation staff and other civil service staff was not accepted, despite Napo raising serious concerns ahead of the transfer, and we believe these being echoed by staff within SSCL. Essentially, the model works on the premise that everything is the same (i.e. shared) – or at least that differences are clearly identified so computer modelling builds around these differences. This is bit the case in the NPS and nothing works.

A Treasury condition for TR was that government were protected from taking on probation pension liabilities. Probation staff had been, and largely remain, members of the local government pension scheme (LGPS) - except for new starters in the CRCs who are on much cheaper defined contribution schemes. The LGPS is a funded scheme. The civil service scheme is unfunded, meaning there is no pot that is protected and invested to cover the pension costs in retirement. This has allowed governments to manage the civil service scheme on Maxwellian principles – e.g. raiding the notional pot for redundancies. There has also been a bleeding of pension language into wider civil service terms and conditions. The computer has learned these clues and what they mean. When a different set of meanings, based upon different pension scheme rules and consequences is imposed on top, it gets confused and either shuts down or gives the wrong answer.

This extends to wider terms and conditions, which have not been harmonised with MoJ policy including absence management processes, notice periods and aspects of annual leave. Until 2017, this included maternity and paternity provision, with the NPS resisting union efforts to bring a majority female NPS workforce into line with other civil servants, meaning NPS staff regularly found their maternity leave being reduced mid-leave.

In 2017, the system almost entirely collapsed. Over 3000 staff were wrongly paid for over 7 months, as pension contributions were not deducted. Efforts to put this right only made the problem worse.

All staff have utterly lost confidence in the shared service centre – including those working there; who openly tell us they cannot trust the computer’s answers and assume they will need to do manual over-rides.

All line managers are reliant upon the shared service centre company SSCL and their processes for all HR activity. This is something that is soul destroying when it rarely works and you cannot trust what it tells you. It extends to managing absence records, processing ill health early retirement applications, pay adjustments, etc. It is difficult to fully establish the scale of the impact as we also rely on SSCL for statistical information (e.g. on absence patterns) but they have not been contracted to produce these.

In addition, it became clear during the 2017 crisis that SSCL was charging the NPS at premium rates to call them. With many offices having moved to mobile only phone systems due to hot-desking, this means all calls to HR cost up to 88p a minute. One member who started in February 2017 and was not paid at all until almost 3 months later faced a personal phone bill of £88.00 trying to sort out their pay.

If we do get pay reform, the risk that the shared service system will mess it up is self-evident. The human in HR has been conceded to a dyslexic computer system. Monty Python would call it far-fetched.

Napo’s view is the obvious need to free the NPS from this problem is being resisted because of a dishonest politics in the MOJ – senior leaders have bound their reputations to the HMPPS vision and would see releasing the NPS from this contract as conceding that HMPPS is merely NOMS re-badged. Egos and reputations cannot be allowed to get in the way of running a key public service in a systematic and sane manner.

b) Loss of managerial confidence
Possibly the most critical side effect of the SSCL and HR failures is the additional strain this is putting on first line managers in the NPS – a critical group in terms of performance. The NPS refused to accept warnings that Senior Probation Officers in probation trusts did little HR management, focussing upon professional mentoring and support with local HR teams being used to address HR issues. This local HR capacity was removed, and replaced by the computers at SSCL. Because of their limited historical HR role, these managers have a much higher number of staff to manage directly than would be anticipated in similar civil service 1st line manager roles - SPOs having typically 12 to 14 reportees.

On a day to day basis this problem is punched and bruised by the SSCL failures leading to managers becoming disengaged or looking for shortcuts – e.g. we know examples where triggers under an imposed absence management regime are being ignored or SPO’s are not entering absence to avoid having to issue warnings to staff they don’t think are right.

c) Retirement problems
There are currently acute problems with the management of pensions across the NPS. This is especially acute in cases where staff are applying for ill health early retirement. This is now routinely taking so long that staff are inevitably on reduced or no pay before they retire. The subsequent loss of notice pay is an area of on-going dispute and legal challenge from Napo. In several recent cases staff have been dismissed and still been waiting to receive their pension several months later.

This is in addition to the failure to collect pension contributions for over 300 staff for most of 2017. When Carillion went bust, members in CRCs asked if we were sure, their contractors had been honouring the commitments under the LGPS. We were confidently able to reassure them that the only systematic failure in this regard under TR came from the NPS.

If Working Links had a Carillion-like collapse, the NPS have admitted to Napo that they would not be able to make the same guarantee to Working Links staff that they would honour their pay until a new contractor could be found.

Greater clarity about CRC challenges and failures

a) SFO evidence reveals information gaps
Napo has been monitoring the management of Serious Further Offences (SFO) cases since TR. This is difficult as access is limited and investigations are closed. Statistics are also difficult to interpret as increased numbers under probation skew baselines.

However, before TR happened we warned that splitting local delivery of core services was a recipe for disaster, introducing a commercially sensitive barrier to information exchanges and separating the most professionally qualified and experienced staff (predominantly probation officers) from the less trained and less experienced staff (predominantly probation support staff and some specialists in the CRCs). The NPS allocation of a low or medium risk label does not mean all CRC clients are safe to manage without adequately trained, properly supported professional staff. This risk is amplified by the lack of any clear national standards or a license to practice in probation.

We are alarmed by evidence in a number of high profile CRC cases, including the murder of Connor Marshall in Wales, where a failure to track critical information about a client between their release and allocation to the CRC could have led them to a different approach. The difficulties experienced by the Marshall family in accessing the truth behind the circumstances of Connor’s murder also amplify why we support greater independence in the investigation of SFOs, passing them HMI Probation.

The pressure of same day reporting in courts is also being identified as a factor in clients, who may be high risk, wrongly being transferred to the CRCs. We again highlighted this risk before TR but think the evidence now exists for a systematic, independent analysis and recommendations.

b) Working Links – Carillion Mark 2?
Napo is given very limited access to information about contractual performance by either the MoJ or Working Links. However, we do know that the contract was won with very limited competition but against very small financial margins.

We have already covered why the assumptions in the contract have meant Working Links has, like all CRCs, struggled to make any profit on the contracts. Indeed, we believe the contracts have led to significant losses for the company.

Adjustments to the contract pricing in 2017 will not address this challenge fully. The second half of the contract was disproportionately reliant upon Performance by Result (PbR) payments that cannot materialise if the number of clients coming into the system have not arrived. Therefore, the contract adjustments will merely limit the forecast losses. If the NPS collected fines for poor performance these losses would increase, although legal bills may rise if Working Links, along with other CRCs, challenge the MoJ based upon mis-sold contracts.

In addition, there is the on-going, now culturally entrenched, loss of trust between the CRC and NPS at local level. The contract funding mechanism was based upon the NPS buying some services from the CRC using a rate card system. Until last summer, NPS staff report being encouraged not to buy off the rate card due to their own budget constraints, each request needing specific managerial authorisation. Since the contract adjustments, we are told this instruction has turned around. NPS staff are now being actively encouraged to support the CRC and to get specific permission where they do not want to do so. We are told this is not working due to low confidence in CRC delivery linked to CRC staff cuts and a limited menu, as well as on-going local NPS budget pressures.

Working Links has already been restructured and taken over by a German equity firm but if the possibility of profit on the investment continues to look unrealistic then the long-term sustainability of the contract must be questioned.

For as long as the contract goes on Working Links are likely to continue to seek to cut corners and the quality of service delivery. We know that recently, staff shortages in the Torfaen Office saw it closed for two days with staff relocated to Newport. In March, the Caerphilly office was closed for two days after the water was cut off due to an unpaid bill. Bailiffs raided the Cardiff Office, seizing equipment in lieu of unpaid bills, in full view of clients.

c) Commissioning model has broken down
One reason for the loss of confidence in the NPS buying from the CRC is the limited menu of services and interventions offered as a direct result of the commissioning model having broken down.

The TR model expected CRCs to purchase specialist support, such as sex offender treatment or domestic abuse programmes, from second tier providers, especially form the third sector. In practice, this has not happened, due to the shortfall in the contract meaning CRCs are incentivised to do as much as they can themselves and squeeze out potential local competition from the charity sector. The current commissioning model gifts Working Links a commissioning monopoly from Land’s End to Holyhead. This is financially incoherent for the taxpayer but also bad news for service delivery, where previous partner organisations have been forced out and intelligence gathering from this network of local providers is locked out.

STARTING NOW TO FIND A SAFER, BETTER WAY FOR PROBATION

In February this year, Napo held a discussion event at the Welsh Assembly, in the light of the recently launched Wales Justice Review. Invited guests and speakers included academics, practitioners, victims’ services, and the CEOs of national charities with established track records in delivering services for offenders, including specialist services for women offenders. There was broad and emphatic agreement that the CRC privatisation model was hampering (if not actually excluding) effective work achieved in partnership between probation and community organisations. Pre-TR, probation had worked effectively in providing core services, and working in close locally forged partnerships with specialised community organisations.

It is our view that the frameworks and expectation for this to be rekindled must be built into any revised model for delivery of rehabilitative services.

The current system is utterly unsustainable. If it survives to the end of the existing contracts, there is no sustainable way forward under the existing model. It cannot be tweaked. Working Links are amongst the worst of the CRC providers but we have no confidence or evidence that the market is strong enough to produce an alternative, better provider.

Re-tendering would still leave the NPS a struggling bureaucratically straitjacketed systematically dysfunctional organisation that was almost accidentally nationalised because no one thought that they could sell off the management of high-risk offenders. Re-tendering would entrench this artificial professional divide in core service delivery. Re-tendering would entrench the conflicting lines of accountability that undermine public trust and confidence if, and when, something goes wrong.

We need a new and different model. Napo has established four key tests for any possible alternative. These are:

1) A locally accountable commissioning body – which should not necessarily be the provider of services. This would re-open the market to the third sector and new innovators (e.g. possible Mutuals).

2) Strong and accountable local leadership - where there is enough political visibility and credibility to stand up to Ministers and secure adequate funding and enough political risk for them to see danger of being blamed for service failures.

3) Unified local delivery of core services – removing the risk of burn out for staff only managing serious and high risk cases in the NPS; facilitating greater capacity building for new recruits in the community; and removing the information sharing barriers that can increase risk when clients are transferred between the NPS and the CRC, as seen in recent SFOs.

4) Not for Profit – The privatisation experiment has failed. A core principle should be that services exclusively using public funds should be exclusively accountable to and measured against the public interest. Additionally, the probation market has been shown to be too weak to sustain itself. This does not preclude efficiency drivers in any model but any surpluses generated should be reinvested into service/programmes by Commissioners, with those delivering efficiently expecting to be rewarded by additional/continuing commissions.

In Wales, there is an obvious opportunity to devolve the commissioning of probation services to the Welsh Assembly. Potentially, at least, this would meet all of these tests. However, before doing so we would expect there to be careful consideration, including engagement with Napo and other staff unions, to build a consensus around this change – including united support for establishing professional standards and frameworks; ensuring sustainable long-term budgets; and working through the transitional people issues.

Dean Rogers
Assistant General Secretary
6 April 2018

Reflections on Worboys

The Worboys case resulted in much political fallout and the sacking of the Parole Board Chair. Here we have some sober reflection from an expert:-  

'Worboys' and challenges to judicial independence

The decision of a panel of the Parole Board to direct the release on licence of the taxi driver and serial sex offender Mr John Worboys must have seemed, to most members of the public unfamiliar with the legal framework within which the Parole Board is required to work, to have been incomprehensible and a serious blunder.

In this article, 'Britain in Europe' expert HH Jeremy Roberts QC, formerly a Judge at the Central Criminal Court and now a member of the Parole Board, is demonstrating that the panel's mistake (as the High Court found it to be) was not of the magnitude which must have appeared to the public: it was largely due to the extreme difficulties faced by the Parole Board, in a case like Mr Worboys', when it comes to applying the legal principles which govern its performance of its role in the criminal justice system. He also argues that the issues with which the High Court was faced were themselves complex and difficult, and that the approach which the court concluded the panel should have followed is not without its own difficulties.

Some reflections on the John Worboys case 

HH Jeremy Roberts QC Member of Parole Board and Master of the Bench, Inner Temple Britain in Europe expert 

19 April 2018

Introduction 

The decision of a panel of the Parole Board to direct the release on licence of the taxi driver and serial sex offender Mr John Worboys must have seemed, to most members of the public unfamiliar with the legal framework within which the Parole Board is required to work, to have been incomprehensible and a serious blunder. That impression can only have been strengthened by (a) the media coverage given to public utterances made by some of Mr Worboys' victims and their lawyers, (b) the quashing of the panel's decision by the High Court on the basis that it should have sought to obtain information about the offences of which Mr Worboys had been accused but never convicted and (c) the forced resignation of the Board's chairman in consequence of the judgment. A friend of mine has commented that the Parole Board must have taken leave of its senses, and I have heard similar remarks made by others.

In this article I am not seeking to question the decision of the High Court: judicial discipline requires me, as a member of the Parole Board, to assume that that decision was correct. What I am seeking to do, however, is to demonstrate that the panel's mistake (as the High Court found it to be) was certainly not of the magnitude which must have appeared to the public: it was largely due to the extreme difficulties faced by the Parole Board, in a case like Mr Worboys', when it comes to applying the legal principles which govern its performance of its role in the criminal justice system. I shall also aim to show that the issues with which the High Court was faced were themselves complex and difficult, and that the approach which the court concluded the panel should have followed is not without its own difficulties. 

I should make it clear that I am writing this article in my capacity as an academic commentator on legal issues and not on behalf of or at the request of the Parole Board (though of course my membership of the Board gives me a special interest in this topic and, I hope, some knowledge of the legal issues involved). 

The Parole Board's place in the system and the legal constraints under which it operates 

To correct some of the misunderstandings generated by the Worboys case it is necessary to start by explaining the Parole Board's role in the system and the legal framework within which it operates. It is now (though it was not always) a part of the independent judiciary of England and Wales. It was not always so. When it was set up 50 years ago it was a purely advisory body, advising the Home Secretary (then the relevant member of the executive) on parole matters. By two stages (in 1991 and 2003) Parliament changed the law so as to transfer from the executive to the Parole Board the responsibility for deciding whether a prisoner serving an indeterminate sentence (life imprisonment or imprisonment for public protection) should be released on licence or remain in custody.

These changes came about as a result of Parliament's deference to decisions of the European Court of Human Rights in Strasbourg, which had held that the UK parole system in its original form was incompatible with the European Convention on Human Rights. Article 5(4) of that Convention requires the lawfulness of an individual's detention to be determined by “a court”. The Strasbourg judges accepted that the Article applies whenever an indeterminate sentence prisoner's “tariff” (the minimum term fixed in his case) has expired. From that point on any decision as to whether he should be released on licence should therefore be made by “a court” and not by a politician who would (with the best will in the world) inevitably be under pressure to make the decision which would go down best with the voting public. 

The Strasbourg judges accepted that the Parole Board, if given the responsibility of making decisions about parole, might qualify as “a court” but only if (a) it was independent of the executive and the parties and (b) it had an appropriate set of judicial procedures to ensure fairness, which of course involves fairness to both parties. There are only two parties in parole proceedings: one is the prisoner and the other is the Secretary of State who represents the public and the victims. Since 2007 the relevant Secretary of State has been the Secretary of State for Justice.

As a result of those decisions the status of the Parole Board had to be, and was, transformed into that of a judicial tribunal, and its procedures were adapted so as to be consistent with those of any other court. They did not have to be identical: for example the Board's hearings may be conducted in private if (as is generally the case) that is necessary in the interests of confidentiality. But when it comes to the decision-making process the requirement of fairness is paramount. 

Hearsay evidence is admissible in parole proceedings, and indeed Rule 23 (6) of the Parole Board Rules states that “An oral panel may produce or receive in evidence any document or information whether or not it would be admissible in a court of law”. This is, of course, subject to the overall requirement of fairness. Since the Criminal Justice Act 2003 came into force hearsay evidence has also been admissible in criminal courts, again subject to the same overall requirement. 

In criminal court cases the European Court of Human Rights and the higher courts in the UK have been much exercised by how the requirement of fairness is to be applied to hearsay evidence of criminal conduct. The present state of the law is that fairness requires that a finding of guilt should not be made if it is based solely or decisively on a statement made otherwise than in oral evidence unless there are in place - to set against the obvious disadvantage to the defendant of not being able to test the reliability of that statement by cross-examination - sufficient counterbalancing factors to enable a fair assessment of the allegation to be made. 

It is clear that if our parole system is to be compliant with Article 5(4) a similar approach to hearsay evidence must be taken in parole proceedings. In the nature of things it would be very difficult to say that the current parole system provides sufficient counterbalancing factors to set against the disadvantage to the prisoner of not being able to test by crossexamination, for example, a statement alleging that the maker had been the victim of a sexual offence committed by him. In a criminal court counterbalancing factors in such a case include (a) the prosecution's duty to disclose anything which undermines its case (b) the opportunity to scrutinise the circumstances in which the complaint was first made and (c) the opportunity to scrutinise exactly what the complainant said when interviewed by the police. In the nature of things the parole system does not provide those safeguards. The officials in the Public Protection Casework Section of the Ministry of Justice (“PPCS”) who are responsible for preparing the case and presenting the evidence to the Board do not have the same disclosure obligations as the prosecution in a criminal case. 

Panels of the Board do sometimes have to make findings of fact for the purpose of their risk assessments. By virtue of the requirement of fairness (and the likelihood that any breach of it would result in an application by the prisoner for judicial review) it is very rare for a panel to use hearsay evidence as a basis for finding that the prisoner committed an offence of which he has not been convicted. The proper place for a criminal allegation to be tested is in a criminal court, with all its checks and balances; and, necessarily, the Board normally relies on the findings of criminal courts to provide the starting point for its risk assessments. If the prisoner was convicted of an offence the Board will proceed on the basis that he committed that offence: it has neither the authority nor the resources to go behind the conviction. Similarly if the prisoner was acquitted of an offence the Board will proceed on the basis that he did not commit it - though evidence of the circumstances surrounding the incident in question may be relevant to the Board's assessment of risk. 

Particular difficulty arises where the prisoner was neither convicted nor acquitted of an offence of which he was accused, because there was no trial of that allegation. The Board is not equipped to conduct a trial of the allegation in the same way as a criminal court (with all the safeguards built into such a trial and with the key witnesses brought to the prison and examined and cross-examined in the presence of the prisoner, which in any event would be quite inappropriate); and any attempt to use hearsay evidence to establish his guilt would be likely to result in the panel's decision (if adverse to the prisoner) being quashed by the High Court or found by the European Court of Human Rights to have been unlawful. 

The Worboys case 

The Worboys case was, as the High Court recognised, exceptional. He had been prosecuted for offences against only 14 of the much larger number of women who had made complaints to the police about him. This was because of the rule of practice in the criminal courts that an indictment to be tried by a jury should not be overloaded by including too many counts for them to disentangle and consider separately. In the result he was convicted of offences against 12 of the 14 and acquitted in relation to the other two. 

It is not unreasonable to suppose that the prosecution had chosen what they perceived to be their strongest cases to put on the indictment. The acquittals demonstrate that the safeguards provided by the system (including not only the opportunity to test the complainants' evidence by cross-examination but also the other factors to which I have referred) operated effectively. They also demonstrate that the jury heeded the judge's warning (equally applicable to parole proceedings) that it is impermissible to lump all the allegations together and it is necessary to examine each allegation separately. This is particularly so in sexual cases, where the issue of consent usually has to be considered.

The fact that the indictment was limited to a relatively small proportion of the allegations against Mr Worboys created real difficulties for the sentencing judge when fixing the appropriate sentence and in due course for the Parole Board in assessing risk. The situation was a highly unusual one: in a case of this kind there are normally sufficient counts on the indictment to give an adequate overall picture of the defendant's offending. 

The panel's approach and the High Court decision 

The High Court did not accept the submission made on behalf of the claimants that, on the evidence considered by the panel, its direction for release was “irrational”. It did however, not without anxious consideration and an acknowledgement that the submissions made on behalf of the Parole Board and Mr Worboys were powerful, accept the claimants' submission that the panel should have sought further information about the offences of which Mr Worboys had been accused but not convicted. 

There are a number of reasons which, I suggest, cumulatively demonstrate that the mistake which the High Court found the panel to have made was a readily understandable and excusable one. 

(1) All of the information which the High Court believed the panel should have sought to obtain amounts to hearsay (in some cases double or triple hearsay). As explained above, the legal framework within which the Parole Board is required to act creates real difficulties for a panel (and the risk of a successful judicial review challenge by the prisoner) if it relies on hearsay evidence to prove that an offender committed offences of which he has not been convicted. 

(2) In taking the approach which it did (not seeking to obtain additional information as now suggested by the High Court) the panel was acting in line with the Board's normal and reasonable approach to hearsay evidence. Mr Worboys' case was unusual in that there were so many allegations against him in addition to those on which he had been convicted, but the general principle applies whatever the number of allegations. [It is possible that the judgement of Mr Justice Green in civil actions brought against Mr Worboys falls into a rather different category from the other pieces of hearsay and that his findings could safely be relied on in the same way as a verdict returned by a jury.] 

(3) Not only was the panel's approach in line with the Board's normal approach. It was also in line with the approach of the experienced officials in the PPCS who put together the dossier for the Board. Based on the same reasoning as above, they clearly did not think it appropriate to obtain the hearsay evidence and put it into into the dossier for the panel to consider. For the reasons set out in this paper, their approach - like the panel's - was entirely understandable. 

(4) Furthermore the experienced “Secretary of State's representative” who (at the request of the panel in view of the importance and sensitivity of the case) represented him at the parole hearing did not suggest on his behalf (either in written submissions before the hearing or orally at the hearing) that the panel should seek to obtain evidence to establish Mr Worboys' guilt of other offences (adjourning the hearing if necessary). 

(5) It is clear from the High Court judgement that there were powerful arguments on both sides on the question whether the panel should have sought further information about the other alleged offences. Whilst the court ultimately preferred the arguments for the claimants, the fact that it acknowledged the strength of the arguments the other way is clear evidence that the panel's mistake was an entirely understandable one. 

(6) Importantly, the High Court accepted that the hearsay evidence could not be used as a basis for a finding that Mr Worboys had committed other offences. It stated that, whilst that was the case, “the evidence or material could have been used as a means of probing and testing the honesty and veracity of Mr Radford's [Mr Worboys' new name] account.”

(7) Most people, I think, (whether lawyers or not) would find that distinction intellectually difficult to understand and apply: it is difficult to see how you could use the material to test Mr Worboys' account without at some stage deciding whether you believe it or not. Certainly it is hardly surprising that it did not occur to the panel that that intellectually sophisticated exercise was one on which it should be embarking. 

(8) It is known that the Secretary of State sought legal advice as to whether there were grounds for him (as a party to the proceedings) to challenge the release decision by way of judicial review. I do not of course know precisely what advice he received but it was clearly to the effect that there were insufficient grounds for him to mount a challenge. It follows that his legal advisers were not of the view that the panel should have sought and considered evidence of wider offending than that of which Mr Worboys had been convicted. If that was their understanding, it is hardly surprising that the panel shared it. 

I am aware that my former colleague Mr John Samuels has suggested in a letter to the Times that, if the panel had been chaired by a serving or retired judge, it would have sought evidence of other offending, as the High Court decided it should have done. I am afraid that as a retired judge myself I do not share Mr Samuels's confidence about that. Indeed I would have expected a judge or retired judge to have been particularly anxious to follow the principles set out in the Strasbourg and UK decisions about the use of hearsay evidence to prove criminal conduct. I doubt whether any of them would have anticipated the sophisticated intellectual exercise suggested by the High Court. My understanding is that the Worboys panel was chaired by one of the Board's highly skilled and experienced independent panel chairs. 

Of course, as the High Court judgement pointed out, it would be surprising as a matter of common sense if, out of all the accusations made against Mr Worboys, the only true ones were the ones of which he was convicted. However, if reliance is to be placed on other offences, they need to be established by proper processes and procedures, and it is important that those procedures and processes should be adhered to (as the panel clearly tried to do). Hard cases make bad law, and to ignore or circumvent the proper procedures and processes in a high profile case in order to achieve the result which the public might like to see would be a serious error. 

In an earlier article, published on the British Academy blog on 30 March 2018, I made a suggestion (use of the “two-stage trial” procedure introduced by the Domestic Violence, Crime and Victims Act 2004) as to how the various difficulties encountered both by the panel and by the High Court might be avoided in future cases. I hope that the Crown Prosecution Service may consider that suggestion to have merit. It would enable verdicts to be obtained on all of the allegations against Mr Worboys (some from the jury and some for the judge) which would in turn provide a reliable basis both for sentencing and, in due course, for the Board's risk assessment. It would also benefit those who could be proved to have been victims of the defendant's offending but whose complaints could not be included in a conventional indictment tried by a jury alone. 

HH Jeremy Roberts QC

His Honour Jeremy Roberts QC was formerly a judge at the Central Criminal Court. He is a member of the Parole Board and a Master of the Bench at the Honourable Society of Inner Temple. He discussed the Worboys case's ramifications for judicial independence at the British Academy conference on ‘Challenges to Judicial Independence in Times of Crisis’ (8-9 May 2018), which was co-convened by BiE's director Dr Dimitrios Giannoulopoulos (with Dr Yvonne Mc-Dermott Rees, an Associate Prof at the Hillary Rodham Clinton School of Law).

Accidents of History

Following on from Friday's blog post, it has been established that from time-to-time we are able to wander off topic at the editor's whim and I'm grateful for this indulgence because to be honest there is some considerable stress associated with endless analysis of probation and its demise, and it provides some therapy. 

It might come as a surprise to some, but I'm not generally cynical by nature, but rather by force of circumstances - I'd much prefer to be inspired than grumpy. It was just last Monday that I became aware of the biennial Commonwealth Heads of Government Meeting (CHOGM) in London and only because of the news that our prime minister was 'dissing' some twelve Caribbean leaders by refusing to meet them to talk about the Empire Windrush scandal. By Tuesday she was eating humble pie in front of them at 10 Downing Street. As someone who has always enjoyed both politics and history, it got me thinking as to exactly what had brought about this volt face?

Lets be honest here, the Commonwealth hasn't featured in the domestic political psyche for years. We joined the Common Market in 1973 and effectively turned our back on the former colonies by confirming our membership in 1975. It must have been hugely insulting, especially to long-established trading partners like Australia and New Zealand, to be told their butter and lamb was no longer required. It strikes me that over subsequent years it became fashionable to regard the Commonwealth as an irrelevance, an historical anachronism borne of a dreadful colonial past, and now as dead as the apocryphal 'Norwegian Blue'.

But of course the Queen didn't see it like that and it's always been a source of bemusement to me that so many former colonial jurisdictions didn't either. If 53 disparate former colonies, both Republics and Monarchies, representing 2.4 billion people, still feel it's relevant and worth being an active part of in 2018, surely there has to be something to it? 

Wheels have turned, we are in the middle of Brexit and as a result of a 'force majeure' in the form of Cyclone Pam, the CHOGM scheduled for 2017 in Vanuatu was scuppered. As the Queen no longer undertakes long-distance travel and would not have attended, the decision to reschedule for London in April this year meant that in effect the Commonwealth had decided to come to her, and the timing turns out to have been exquisite. Suddenly the UK is desperate to talk trade with non-European nations; the new world needs the old world to sort out climate change; the Queen wants to cement her Commonwealth legacy; the Heads of Government wish to unite and mark a significant milestone; the Windrush saga comes to a head, and the sun is shining in London. 

As well as being at best ambivalent about the Commonwealth, many feel the same about the King-in-waiting. The position of Head of the Commonwealth is not dictated by statute or treaty and in fact it's fascinating to read on page 63 of the glossy 172 page celebratory publication 'Queen and Commonwealth - 90 Glorious Years'  how the issue was decided upon her Accession in 1952:- 

"The position of Head of the Commonwealth had not been enshrined in the constitution. In fact it had been India’s first Head of Government, Jawaharlal Nehru, who had clarified the position. When he had dispatched a telegraph of condolence to Elizabeth on her father’s death he had also, without any consultation, welcomed her as Head of the Commonwealth. The rest of the countries followed India’s example."

Last Thursday the Queen was well aware that the following day the Heads of Government would decide who would succeed her. Her preparation had been skillful and the culmination of years of dedicated service, wise counsel and judgement, combined with political nous of the highest order in making the most of an accident of history. Naysayers, including Jeremy Corbyn, who recently told Andrew Marr that a 'rotating Head' would be a good idea, just serve to prove how out of touch they are in not appreciating what was obvious to Nehru and subsequent elected Presidents, that those in positions of power by virtue of accidents of birth, very definitely have utility. And who would be brave enough to deny such a venerable international treasure and icon her 'sincerest wish' on the eve of her ninety-second birthday? The decision was unanimous, if not without some small degree of doubt from at least one quarter we learn. 

My love of history I suppose is because I aways want to know why and how things happen. I love this story recounted here and ponder if the Palace played any part in last week's rapid turnaround by Theresa May:-  

"The Queen’s biggest Commonwealth struggle came in 1986 when seven prime ministers arrived in London to talk about applying sanctions against South Africa, booted from the organization for its apartheid regime. While the seven wanted sanctions, Britain’s prime minister, Margaret Thatcher, was opposed. The Queen hosted a working dinner—no spouses, no aides allowed—at which Thatcher was given a clear message that a schism would not be allowed. “She would be a minority of one,” recalls Sonny Ramphal, then secretary-general of the Commonwealth. “Margaret Thatcher had been hijacked by her Queen.” Four years later, Nelson Mandela was freed. “When Mandela came out of prison, he knew one of his benefactors was the Queen,” Ramphal states. Soon, South Africa was back in the organization and Mandela was a guest of the Queen at Buckingham Palace."   

As a young idealistic schoolboy I have fond memories of a history trip to the amazingly-futuristic Commonwealth Institute on Kensington High Street, sadly no more. In those halcyon days I also remember being so inspired by the notion of a bright future for our planet through other bodies such as the UN, I was motivated to attend the Christmas conferences of the grandly-titled but now defunct Council for Education in World Citizenship. 

As I grew up and idealism was inexorably replaced with cynicism, Margaret Thatcher, no fan of the Commonwealth, withdrew the UK from UNESCO in 1985. The CEWC had its government grant axed in 1994, subsequently forcing it to suspend operation and merge with the Citizenship Foundation, itself morphing recently into Young Citizens in furtherance of its 10 year Strategic Plan.  

It strikes me that in stark contrast to the often-flawed operation of the UN and many of its affiliated agencies that become mired in geo-political conflict, the Commonwealth has not only successfully weathered its difficulties, it's soldiered-on and recently launched many imaginative initiatives that seek to tackle climate change, education, trade, women's rights, security and good governance. The extremely difficult legacy issue of LGBT rights remains, but there has been some progress in encouraging and supporting jurisdictions wishing to consider reform. It's even likely that Zimbabwe will rejoin should concerns regarding elections be allayed.     

I'm really happy to say that in the warm London sunshine last week, I rediscovered an antidote to cynicism. My interest, respect, hope and aspiration for a better world through the amazingly reinvigorated Commonwealth of Nations has been renewed. I defy anyone not to be similarly inspired by what's been quietly going on, mostly ignored and unnoticed here in the UK, but admirably outlined variously on their website, CHOGM 2018 Report and massive Ministers Handbook.