In Search of the Probation Narrative

I've been away for a few days and been somewhat distracted and inattentive. Despite lots going on and the whole future of probation up in the air once more, it seems mightily quiet, so I thought I'd go in search of the narrative:-  

We have a new minister, refusing to use 'probation' in his title, telling Bob Neill and the Justice Committee they are misguided in thinking TR was a disaster:-

"To condemn TR out of hand and say that it was a failure is unfair to many aspects of it: for example, the increase in the overall number of people supervised; some of the really good projects that we saw in the south-east relating to stalking; and the work done on unpaid work requirements. I do not think it would be fair to write off the past four or five years as a blind alley, because it certainly was not. A lot of what we have learned from that will be taken forward in the new model, but the end of the division between serious offences and less serious offences will help us, most notably not just with overall accountability but with the workload of probation officers. Perhaps we can explore that as we go into questions."

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We have those cunning MoJ spin doctors attempting to push some good news stories to deflect attention:-

'Lifeline' community treatment pilots to steer offenders away from crime

Vulnerable offenders in the criminal justice system will be offered targeted treatment under new plans designed to boost rehabilitation and reduce re-offending announced by the government today (20 June 2019). Where appropriate, through the new pilots more offenders will be diverted towards community sentences in where they will receive treatment for mental health, drug or alcohol issues, often deemed to be the root cause of offending behaviour.

Pilots have already seen an almost 250% increase in those referred for mental health treatment within 18 months and a higher rate of compliance with the terms of an order, just 8% failed to comply with their requirements. The approach will now be rolled out to new sites in London and Greater Manchester.

This focus on ensuring people get the right care, at the right time, in the right setting will be integral to the forthcoming Health and Justice Plan, announced by Health Secretary Matt Hancock and Justice Secretary David Gauke today. This comes 10 years on from the landmark Bradley Report, which set out a comprehensive plan to reduce reoffending and improve public health for vulnerable offenders.

Justice Secretary David Gauke said:

"Providing targeted, tailored and timely mental health and addiction treatment for vulnerable offenders across the country will help cut reoffending - saving taxpayers’ money and making our communities safer. We will support agencies across health and justice to work more closely together to ensure offenders have the right support and to build greater confidence in community sentences. This is just the start of our shared vision to reshape offender health and strengthen community sentences, ultimately improving rehabilitation and breaking the cycle of offending."

Health Secretary Matt Hancock:

"Addressing prisoners’ physical and mental health needs early on can help tackle the root cause of their criminality and steer them away from the path of reoffending. It is crucial the health and justice systems work together to provide the best possible care for prisoners. Today’s announcements demonstrate our commitment to giving people the support and treatment they need to live healthy lives in prison and reintegrate into society when the time comes."

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And make no mistake, the MoJ has to come up with something positive to try and counter their tendency to lie, cheat and bully - hardly a comforting prospect for a 'reunified' probation service under civil service control. This from the Guardian:-

Bullied bisexual prison officer unlikely to work again, tribunal finds

A bisexual prison officer is unlikely to ever work again because the harassment and discrimination he suffered at work has permanently damaged his health, an employment tribunal has found.

In two judgments, it was revealed that Ben Plaistow, 41, is likely to receive an exceptionally high compensation payout when his case is finally settled later this year, not only because of the campaign of bullying and harassment his colleagues at HMP Woodhill in Milton Keynes conducted against him during his two years of employment there, but also because of a litany of failings by the Ministry of Justice (MoJ), including the forging of documents submitted to the tribunal.

“Perhaps most seriously, given the identity of the respondent [the MoJ], is the forgery by late production and backdating of documents designed to ‘plug gaps’,” the tribunal ruling states. It also refers to “corruption of documents by conflation, amendment or post-dated creation” and said the MoJ’s failings go “beyond error”. The colleagues were found to have engaged in a “campaign of victimisation” against Plaistow, with their conduct found to be “vexatious, disruptive and unreasonable”.

Government lawyers involved in the case were also criticised for failing to demonstrate appropriate diligence and were accused of having “blindly” followed instructions from their MoJ colleagues.

The judge, Michael Ord, sitting with two lay members in an employment tribunal in Cambridge, previously found that Plaistow experienced a campaign of direct discrimination and harassment because of his sexuality, and was victimised and unfairly dismissed because he complained about what took place. He was subjected to a catalogue of abuse including being called “poof”, “gay” and “vermin”, was pushed and slapped, and had a bottle of water squirted in his face.

Plaistow was hired as a prison officer at HMP Woodhill in 2014 and was fired two years later after he was accused of gross misconduct. In December 2015, he was alleged to have used unnecessary force on a prisoner while breaking up a fight. The incident led to his suspension and subsequent dismissal. However, the tribunal heard he did not use unnecessary force. This was backed up by CCTV footage and witness testimony from the prisoner, who acknowledged he was at fault.

Expert medical reports found that Plaistow, who was well-regarded by both the prison service and prisoners, was highly unlikely to ever work again. He has been diagnosed with PTSD, moderate psychological damage and paranoia as a result of “lengthy failings” by the prison service. One doctor who assessed him found his condition to be “chronic and permanent”.

The payout he eventually receives will be based on a career-long loss of earnings; Plaistow had hoped to work until the age of 68, so is likely to have lost 27 years of his working life. Final calculations are still being worked out and will include the loss of his £31,660 a year net salary since his dismissal and into the future, as well as the loss of his pension.

As well as awarding him £41,000 for injury to feelings, the top end of the top band in this category, the tribunal has also awarded him £15,000 aggravated damages and £8,000 exemplary damages. These damages are only awarded in rare cases. Aggravated damages are given when the employer’s conduct towards the victim has been humiliating and malicious and exemplary damages are a sign of great disapproval of the employer’s conduct.

The tribunal found that the MoJ’s “conduct as an arm of the state in relation to this case has been unacceptable”. The tribunal raised further concerns about the training the MoJ promised to provide following the case, which it found to be “wholly unconnected” to the substance of the judgment, relating to discrimination and harassment based on sexual orientation.

“No steps have been taken at management level as to identification and eradication of such conduct amongst staff,” the tribunal heard. Until the MoJ was approached about the investigation by Plaistow’s lawyers, it had “taken no steps whatsoever to investigate the serious findings and matters of concern”, the tribunal found.

The government department was criticised by the tribunal for not being able to say if anyone had been suspended pending an investigation or whether any steps had been taken to prevent officials from colluding during the investigation.

An MoJ spokesperson said: “We do not tolerate any kind of discrimination in our prisons and take action to make sure all staff are treated appropriately and fairly. A new staff network, ‘pride in prison and probation’, was set up in 2016 to support workplace equality and now has 5,000 members. We have noted the judge’s decision and are considering next steps, and a separate internal review is ongoing.”

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Of course there is the on-going Employment Tribunal that tends to confirm the MoJ's love of secrecy in trying to bully and silence:-

An Academic Says She Was Bullied At The Ministry Of Justice After Revealing It Was Running A Programme That Made Sex Offenders More Likely To Reoffend

An academic whose research revealed that the Ministry of Justice’s treatment of sex offenders in prison might actually increase their chance of reoffending is suing the department. She says she was bullied out of her job after whistleblowing about the results. Dr Kathryn Hopkins worked as a researcher in the MoJ’s analytical services department. Her study of the controversial Sex Offender Treatment Programme (SOTP) suggested that five years on from release, prisoners who had been on the programme were more likely to commit a sexual offence again.

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Then we have the saga of HM Probation Inspectorate continuing to find 'excellent' leadership everywhere in the CRCs, but sadly hand-in-hand with poor performance:-

"Although inspectors praised Kent, Surrey and Sussex CRC’s commitment to innovation and strong leadership, they did have concerns about the quality of some case supervision and its ‘Through the Gate’ work with offenders leaving prison. There is a widespread shortage of qualified probation officers and the CRC has found it particularly difficult to recruit and retain staff because of its proximity to London. The CRC has decided to tackle the problem by leading the development of a new apprenticeship scheme to offer people a different route into the sector. If the scheme is successful, it could be rolled out nationally."

When is HMI going to admit their inspection methodology must be seriously flawed, or are the cynics correct in assuming there must be some other policy aim at work here? 

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We have the MoJ's proposed new model for probation containing such meaningless crap as this:- 

68. A Regional Co-ordination Function is predicated on the Dynamic Framework and the regional oversight of multiple contracts delivered on a regional and sub-regional footprint. Working in an Intelligent Customer capacity, it will actively co-ordinate supply and demand to ensure the Responsible Officer can have access to the right services at the right time. 

69. The Dynamic Framework will be the means for NPS regions to access services for offenders both on community orders and those supervised on licence in the community, with the ambition that some services will eventually reach into the pre-release phases of sentence in England, offering Through-the-Gate. The Dynamic Framework will also be the anticipated sourcing vehicle for spending the Regional Outcomes Fund if appropriate. 

70. The Dynamic Framework also provides accessibility for a range of different commissioning bodies, HM Prisons, Regional Authorities for Probation, HMPPS Wales, Welsh Government, PCCs, MOPAC and GMCA, Local Authorities, etc. It should be noted that commissioning bodies other than the Authority (HM Prisons, Regional Authorities and HMPPS Wales) can also buy services directly from the Framework or via co-commissioning arrangements with the Authority. The Framework will also be used to award both contracts and grants.

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With the government stubbornly wedded to still keeping a privatised chunk of probation in the mix, charities and other third sector players need to be mindful they got their fingers seriously burnt under TR and lost a lot of money. The CivilSociety website highlights other worrying effects of the disastrous policy:-    

Government probation reform led to 50 per cent drop in charity grant funding, says report  

The government’s most recent overhaul of the probation system may have led to a 50 per cent drop in grants from independent funders, according to a new report. Charity sector thinktank, NPC's new report, Independent, Effective, Humane, shows that independent grant funding for probation charities dropped from £37.1m to £18.4m from 2013 to 2014, the same time as the government’s Transforming Rehabilitation programme was introduced. 

The report says the figures suggest “funders may respond directly to policy upheaval—by pausing their funding”. It says grant funding levels have since recovered but warns: “With renewed uncertainty about the future of probation services in 2019, charities need commitment and stability from funders.” 

The report says charities that are involved in probation services are heavily reliant on independent grants, with smaller, specialist organisations getting about two-thirds of their funding this way. It says this is because the public “don’t often give to criminal justice charities” and the government is increasingly funding through contracts instead. And the report says probation charities are concerned that independent funders are being put off funding probation services because they are worried “their grants are propping up a harmful prison system”. It says they are also concerned about charities ability to access service users in prison, and the risk of subsidising government contracts or private sector profits. 

An anonymous grant-making trust is quoted in the report as saying: 

“We have moved away from funding work in prison to work in the community with people who are at risk of offending or reoffending. “When we do due diligence, charities say that our grant might subsidise government contracts. We understand how hard it is for charities—they are between a rock and a hard place—but it just isn’t acceptable to our trustees.” 

Following a highly critical report on the government’s £900m Transforming Rehabilitation programme by the chief inspector of probation last year, the Ministry of Justice announced its decision to end current probation contracts early and consider a new model for probation from 2020 onwards.  

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Finally, in trying to speculate where we might usefully look in terms of what the hell the probation narrative currently is, I'll end with some House of Lords exchanges from the 16th May, the day when the infamous government 'u-turn' was announced:-

Baroness Chakrabarti Shadow Attorney General

My Lords, I am incredibly grateful to the Minister for repeating the Statement. This is a welcome U-turn on a disastrous probation policy—but what a mess, what an absolute mess. I feel the need to probe the underlying thinking a little further to ensure that lessons are truly being learned in the Government. Those of us on these Benches have real constitutional concerns, and concerns about accountability for public safety in relation to privatising the criminal justice system.

Today’s U-turn, a necessary first step to cleaning up the probation mess, comes only after hundreds of millions of pounds have been squandered propping up failing private companies, and public safety has been put directly at risk as a result. So I must probe the Minister on the thinking for the future and the proportion of these funds that are to be preferred towards private companies as opposed to voluntary bodies and social enterprises. This is crucial to understanding whether failing outsourcing giants, such as G4S and Sodexo, are going to be offered a way back into the probation system.

Lord Dholakia Co-Deputy Leader of the Liberal Democrat Peers

My Lords, I thank the Minister for repeating the Statement. All of us think that it has been a long time coming and it is right that we should broadly welcome the thrust of the Government’s intention to reorganise this service.

I take our share of the blame as part of the coalition Government, during which we supported some of the reforms of the National Probation Service in 2014. Some of the principles of these reforms were very sound when they were introduced. It was right that supervision was available for at least the first year when inmates leave prison. It was important to provide through-the-gate services, so that people can have a place to live as well as continuity of training and treatment between prison and the community. To do all this, it was vital that voluntary organisations working in the criminal justice field were fully involved.

Mr Grayling has bungled and underfunded contracts so badly that his reforms failed to achieve these objectives. No wonder it is estimated that these botched reforms have cost the taxpayer more than £500 million, according to the National Audit Office. He is the most unfortunate Minister whose record is dismal, and it is a surprise that he has lasted so long, even at the Department for Transport at this stage.

We need some guarantees to ensure that the probation service is not let down again. Who is examining the existing case load of probation officers? What further resources are available to make them more effective? Is there any way of tying probation resources to the rise in the number of prisoners in our establishments? Is there some way of ensuring that more incarceration of prisoners will effectively mean more work for the probation service? A good many well-trained but disillusioned probation officers have left the service in the last few years. What is being done to bring them back into probation work?

The Minister has just announced a new targeted innovation fund. What share will voluntary organisations have in such funds in order to make the probation service more effective? The new targeted innovation fund ought to make sure that such organisations are not locked out. Of course reforms are necessary, but we should never lose sight of the fact that when the state incarcerates prisoners, it takes full responsibility for each individual. We would do well, in very difficult times, to say to ourselves that if we lose that responsibility we will lose control of our criminal justice system.

Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

My Lords, I thank the noble Lords for their contributions. I do not accept the characterisation of these matters advanced by the noble Baroness, Lady Chakrabarti. Indeed, as I have often observed in the past, the gross overstatement of an argument simply diminishes it in the ears of hearers.

The position is that we have learned lessons over the past few years from the way in which probation was set up and carried through, as between the National Probation Service and the CRCs. Indeed, one of the difficulties that emerged arose not out of money being used to prop up CRCs, or money being taken from the taxpayer for the benefit of CRCs, but because the Government was actually too successful in negotiating the commercial terms of the CRC contracts, with the result that the CRCs made persistent losses on these contracts of such magnitude that they began to withdraw from the quality of service they should have provided in the first place. That created very real difficulties, and we accept that. We actually had to go to the CRCs and try to renegotiate in order to keep them on a reasonable path of provision.

One consequence of that has been that, for example, CRCs have paid out more than £9 million in respect of what are called service credits—which are, for them, service debits; they are credits to the taxpayer but debits to the shareholders of these companies—because of their failure to reach performance targets. So we responded to the very real difficulties that emerged in that context.

We are now developing a system whereby we will have the probation service on a regional basis. These regions will be coterminous with the PCCs, in the hope that, going forward, there will be greater linkage between the PCCs and the probation service. We will have a director-general of probation, which I think accords with a recommendation that has just been made in the interim report issued today by the noble Lord, Lord Ramsbotham, who was commissioned by the noble Baroness’s honourable friend, who I believe continues to be the shadow Secretary of State for Justice, Richard Burgon MP, who asked the noble Lord to look at this.

On the question of U-turning on nationalisation, I will quote from the interim report of the noble Lord, Lord Ramsbotham. He says:

“There is no doubt that the private sector has brought rigour to the oversight of probation. The best of them explained how they had introduced a forward-looking culture of delivering more with less, which must have relevance for the future, plus a better understanding of the relationship between cost and delivery”.

We are seeking to build on those benefits, appreciating that there were also deficits in the way in which CRCs delivered at the end of the day.

To take up the particular point raised by the noble Lord, Lord Dholakia, we are concerned to ensure that the voluntary sector has access to these contracts going forward. Indeed, one of the difficulties that emerged with CRCs was that, as they fell into greater financial difficulty, they drew back from their engagement with the voluntary sector and we therefore lost the immense benefit of that sector’s involvement in the probation service.

Taking this forward, we hope to re-establish clear, unambiguous faith in—for example—non-custodial sentences so that the courts can have more confidence in putting those forward and thereby, touching again on a point made by the noble Lord, relieve pressure on the prison system itself by virtue of an improved probation service.

Lord Judd Labour

My Lords, does the Minister not agree that in its earlier chapters the probation service attained an outstanding reputation and public confidence because of the quality, wisdom, experience and insight of its staff? That is crucial to the operation. Does he not also agree that, while there may be an argument about what happened in the last phase, there is very little doubt that, among many people, its reputation seemed to be in jeopardy as short cuts were taken and that there was a perception that the probation service had become an extension of the custodial system and had rather lost the purpose it was there to fulfil? Does he not therefore agree that, whatever happens—and we wish the new system well—commitment, quality of staff and the relationship and friendships that have to be built up between the officers and the people with whom they are dealing will be absolutely crucial?

Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

My Lords, I without hesitation and qualification commend the professionalism, integrity and ability of the staff within the probation service. That is why we are intent on implementing a statutory professional regulatory framework that will recognise the degree of professionalism that they have exhibited and continue to exhibit in the discharge of their demanding functions. The National Probation Service has extended its staff in recent years by about 500, and is bringing on further training of such staff. Going forward, we have appreciated the need to ensure consistency in the delivery of probation services and are not looking back to the prior form in which probation was delivered. When there were 35 probation trusts operating, with commendable staff, there were 35 ways of doing things. We have found that it is far better to try to identify a single, unified way of doing things for the entire probation service.

Lord Ramsbotham Crossbench

My Lords, I am grateful to the Minister for quoting the interim report that I was required to write by the Shadow Minister for Justice. I note that he quoted my paragraph saying that not all had been lost by the community rehabilitation companies and citing the economic rigour that they had to bring to their role. Perhaps I might ask Minister two questions. First, he will have noted that the Justice Select Committee and the Public Accounts Committee—plus the National Audit Office and Her Majesty’s Chief Inspector of Probation—issued very critical reports of the whole transforming rehabilitation process. They said that the procedure had been rushed and unpiloted. Are the new proposals again to be rushed through unpiloted? Secondly, will the 11 areas correspond to the existing 11 government regions within which the police and crime commissioners operate, or will we have yet another division? By adopting Department for Work and Pensions boundaries, Transforming Rehabilitation completely crossed every single common-sense boundary that had been followed by the probation service for years.

Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

I am obliged to the noble Lord and welcome the fact that he has given consideration to these issues and is able to contribute to this matter with his interim report. No doubt he may take that further. On his second point, I had mentioned that the 11 proposed areas will be coterminous with PCC regions. There are more than 11 PCCs, of course, but we will ensure that the regions are coterminous so that we can develop the appropriate relationships between the PCCs and the NPS in that context. It is certainly not our intention for this to be rushed. I would mention two points: first, although the existing CRC contracts, as adjusted, run to the end of 2020, we have the ability to extend them to the spring of 2021 to have time to bring in these reforms; and, secondly, there will be a pilot in some sense because the model we are now adopting is the one we had already decided to adopt for Wales, which will be implemented from 2019. We will be able to see how this actually operates in practice before we proceed further with the rollout across the rest of England.

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I love this bit:-

"When there were 35 probation trusts operating, with commendable staff, there were 35 ways of doing things. We have found that it is far better to try to identify a single, unified way of doing things for the entire probation service."