CRCs Get Ear of Sentencers

With the profession still coming to terms with last weeks announcement regarding TR2, I think it's probably fair to say not many of us have noticed PI 5/2018, but Rob Allen has and there are grounds to be concerned:- 

Private Communications

New liaison arrangements between courts and probation services came into force last week. Much of Probation Instruction 5/2018- which like previous versions have been agreed with the Senior Presiding Judge- describes national and local procedures for ensuring effective communication and dialogue on issues of joint concern and escalation mechanisms when problems arise. As long as someone knows the difference between the JBG, JDG and JOG, I’m sure it will work well.

Two matters stand out. First compared to earlier protocols it’s pretty Stalinist. The 2016 instruction “was not intended to be prescriptive in the method of exchanging information” at a local level, requiring only a process to provide assurance that the protocol is being followed. The new version even contains a standardised agenda for local liaison meetings in order to maintain consistency although the local judges, magistrates and probation staff will perhaps be relieved that “the degree of granularity or detail required is not prescribed”. My guess is that the arrangements haven’t been working sufficiently well and with ministers wanting fewer short prison sentences and CRCs wanting more community orders something more than a mild refresh was required.

The second point concerns the role of CRCs. I’m probably reading too much into it, but it seems like they now have a seat at the table with sentencers for the first time. In 2014 it was for the National Probation Service (NPS) to liaise between judges, magistrates and providers of probation services, providing information about the services available in their local area. By 2016, NPS was to facilitate provision of information and presentations from local Community Rehabilitation Companies and Electronic Monitoring Services (EMS) about available provision. In the new arrangements, the CRC and EMS are expected to be represented at the Crown Court meetings and must be at the Magistrates Court’s .

About time you might think. How can courts possibly have confidence in community sentences if they can’t meet the providers - or see what they do. The new protocol says both NPS and CRCs should endeavour to meet requests from judicial officers to observe probation (and prison) work in the local area. I’m generally in favour of this sort of activity, helping to fund some of it when I ran the Rethinking Crime and Punishment Programme 15 years ago.

The problem is now that probation is provided for profit, CRC’s will effectively be making a sales pitch. They want – and probably need – more customers from the courts. And to the extent that they get them, so their shareholders will benefit.

Judges and magistrates on the other hand must be mindful that the principle of judicial independence extends well beyond the traditional separation of powers and requires that they are and are seen to be, in the words of the Guide to Judicial Conduct- “independent of all sources of power or influence in society, including the media and commercial interests”. The Guide is quite strict, telling judges they should take care in considering whether their name and title should be associated with a public appeal for funds, even for a charitable organisation. “Such an appeal could amount to an inappropriate use of judicial prestige in support of the organisation”. The Guide even suggests it may be inappropriate for a judicial office holder to deliver a public lecture or participate in a conference or seminar run by a commercial organisation.

Magistrates have been aware of possible conflicts of interest in this area. Former Chair of the Magistrates Association (MA) Malcolm Richardson told the Justice Committee last year that “there has been excessive concern on the part of some about building relationships with organisations that have a profit motive. I think that that is to underestimate the ability of sentencers,particularly magistrates, to manage those relationships”. He may have been referring to those of us who were critical of an ill judged – and quietly abandoned-income generating scheme dreamt up by the MA in 2015 to involve private Community Rehabilitation Companies (CRC’s) investing in the MA Education and Research Network. Or he may have meant his own Association which raised prescient concerns in 2010 about the impact that introducing a profit motive for reducing re-offending might have on meeting the core aims of the criminal justice system.

It may be that we all need to make adjustments to the realities of private sector involvement in criminal justice- and the obvious benefits of replacing short prison sentences with community orders outweigh footling concerns about propriety. But maybe not.

Rob Allen