Recall and Scapegoating

Yesterday saw publication of the second part of the Probation Inspectorate's report into the handling of the Joseph McCann case. There remains widespread anger and concern amongst practitioners that they continue to be 'scapegoated' for the consequences of what are essentially organisational policies and procedures.     

Foreword 

The power to recall a person to prison is a significant one. It is one of the most important decisions probation officers make and over 27,000 of these decisions were made in 2019/2020. The immediate consequences for the recalled prisoner are self-evident, but the decision also has consequences for victims, potential victims and the public at large. In part one of this independent review, published in June 2020, we reviewed the case of Joseph McCann and expressed serious concerns about decision-making in relation to recall during the period 2017 to early 2019. We have not found a repeat of those concerns in part two, our review that looks at current recall culture and practice in the period since then. Probation staff are clear that public protection is the primary concern in recall decisions, and this was reflected in the cases we reviewed. 

Recall decisions are often complex and frequently rely on the analysis of detailed information and behaviour. It is important, therefore, that they are supported by a methodical, consistent and fair process. The National Probation Service (NPS) and Community Rehabilitation Companies (CRCs) currently have different processes for recalling individuals, and these are applied inconsistently. It is important that recall decision-making is prioritised and operational staff are given the necessary time and management support to make effective decisions. Probation staff have concerns about the professional and personal consequences if they fail to instigate a recall and a high-profile incident subsequently occurs. A professional culture needs to be at the heart of recall decisions. This requires a consistent process and operational staff having the confidence that they will be supported if they make considered, defensible decisions. 

We have found that the current system for licence warnings, which are designed to prevent the need for a recall, varies both between and within organisations and its effectiveness has not been evaluated. Nearly all of the cases we reviewed where a warning had been issued still resulted in recall, raising questions about the impact of this approach. Furthermore, license warnings are not subject to additional scrutiny outside of the normal management oversight of cases. This requires urgent attention. It potentially results in inconsistent licence enforcement and is also unfair from the perspective of procedural justice. Alternatives to recall are often used alongside licence warnings, but the effectiveness of this strategy has not been reviewed since it was implemented in 2017. We are satisfied that when alternatives to recall are considered they are balanced against the requirements of public protection, but there is inconsistency in both their accessibility and use. 

Decisions on recall and licence warnings often rely on the judgement of individual practitioners, but these decisions and practice judgements are not routinely monitored for bias and unconscious bias. Disproportional outcomes, particularly for black, Asian and minority ethnic service users, have been identified in other parts of the criminal justice system, but they are not routinely monitored in relation to recall decisions. This needs to be addressed to ensure that recall decisions are routinely scrutinised and any learning can inform improvements in probation practice. 

Decisions on recall and licence warnings are complex. Across the nine organisations we inspected, there were examples of responsible officers taking recall decisions to protect victims, potential victims and the public. There were also examples of probation staff coordinating comprehensive support packages for individuals in an attempt to break entrenched patterns of criminal behaviour. This professionalism should be built on with the aim of developing a confident, professional organisational culture. To this end, our recommendations are designed to strengthen the process and support probation staff in their decision-making.

Justin Russell

HM Chief Inspector of Probation

Executive summary 

Context of the review 

On 05 March 2020, the Secretary of State for the Ministry of Justice announced that an independent review of the case of Joseph McCann would be undertaken by Her Majesty’s Inspectorate of Probation. The review would be in two parts. Part one was to focus on the supervision of Joseph McCann by the National Probation Service (NPS) and part two would review the current probation culture and practice in respect of recall. Part one was published on 30 June 2020. This report constitutes part two of the review. 

Part two was completed against the background of COVID-19. Nine probation providers were involved in the review and 39 meetings with managers and operational staff took place remotely via video or telephone conference during July and August 2020. We inspected a sample of 50 release licence cases that had been recalled or had warnings issued between October 2019 and February 2020. Where available, we also interviewed the allocated responsible officer. The case sample predated the probation exceptional delivery model (EDM) introduced at the end of March as a result of the COVID-19 crisis. The EDM ensures that public protection continues to be the priority for probation providers. The learning and recommendations from this inspection apply to probation practice both before and after the introduction of the EDM. 

Recall decision-making and threshold 

We found that public protection and the protection of victims are central to probation service decision-making on recall. Operational staff are clear that this is the primary focus of recall practice. Alternatives to recall are routinely considered where appropriate, but this does not compromise the focus of decision-making on public protection. 

In 2019/2020, 34 per cent of recalls included a failure of the service user to keep in touch with their supervising officer as the reason. Responsible officers make impressive efforts to engage non-compliant service users and often put comprehensive support packages in place. These cases are resource-intensive and frequently result in a recurring cycle of release and recall. 

Licence enforcement and recall requires a consistent process that must allow for individualised decision-making. It is rarely a simple decision and probation practice must allow for the key information to be assessed and reviewed. Responsible officers require the necessary time and management support to obtain and analyse information and make good decisions. Office practice and procedures should enable such a process to ensure that recall and warning decisions are defensible and not overly cautious. We found that this varied between offices and organisations. 

Probation organisations have communicated the Recall, Review and Re-Release of Recalled Prisoners Policy Framework (RPF)2 to their staff, but staff and managers’ knowledge of the specific processes and criteria is inconsistent. Operational staff were, however, clear that decisions on recall must focus on increases in the risk of serious harm linked to previous patterns of behaviour. Communication of the revised framework has been stronger in the NPS than in the CRCs, but communication within individual divisions has not been part of a coordinated national strategy. This lack of coordination has reduced the impact of a key national policy. 

Licence warning and alternatives to custody 

A breach of licence conditions does not automatically result in the instigation of recall. Where probation providers assess that individuals can still be managed safely in the community, they can issue a licence warning. Licence warnings can be accompanied by amended licence conditions. These may include increased levels of contact; cooperating with activities such as drug testing; or additional restrictions in relation to residence or curfew. 

Current licence warning practice is inconsistent both between and within organisations. There are inconsistencies in the threshold, recording and delivery of warnings. This makes it difficult to identify cases where the service user has been warned and not recalled and to operate effective quality assurance processes. In most cases where warnings have been issued, recall to prison is still the eventual outcome. This underlines the need to review practice and issue a revised licence warning process. 

Practitioners now take a balanced approach when deciding between recall and alternatives to recall, and this approach is considered good practice across organisations. However, access to and use of alternatives to recall, such as approved premises (APs) and electronic monitoring, are inconsistent. Probation organisations have not analysed the effectiveness of the overall strategy on alternatives, or whether it averts or simply delays an eventual recall. The role of APs as an alternative to recall requires clarification. NPS responsible officers, in contrast to AP managers and staff, regard APs as an important alternative to recall.

Quality assurance 

Rates of recall vary both between and within organisations. This variation cannot be accounted for solely by the circumstances of the individual case. In the NPS, divisions receive information on performance on a quarterly basis. This includes the number of recalls and the reasons for them, along with the number of licence variations. There are no performance targets in relation to recall numbers, but the reports highlight local delivery units where recall rates significantly deviate from the national average. NPS divisions use this information to monitor variations. The CRCs generate information on recalls as part of their enforcement monitoring. Again, there is no performance target for the number of recalls, and organisations do not monitor any actions taken as an alternative to recall. CRCs do, however, monitor the rates of recall. For example, one CRC identified a low rate of recalls and amended its practice as a result. 

The routine quality assurance of recall decisions is reliant on each senior manager’s endorsement of the practitioner’s decision as part of the decision-making process. Licence warning decisions are not the subject of any targeted monitoring or review. Some probation providers use the national Alternative to Recalls and Recall Report Part A quality assurance tool, 3 but this focuses on recall cases only rather than looking also at cases where recall was decided against. NPS London and NPS North East have undertaken their own quality assurance and dip-sampling initiatives to monitor recall cases for disproportionality. However, probation providers do not routinely review recall decisions to check for bias and unconscious bias. 

Organisational culture 

Recall culture and practice are directly influenced by national policy and high-profile serious case reviews. In recent years there was a widespread belief among operational staff that recalls should be minimised. More recently there have been fears that responsible officers will be unfairly held responsible for any adverse consequences resulting from a failure to instigate recall. Both perceptions undermine professional decision-making, which must be at the core of the process. The current correct balance between alternatives to custody and public protection is understood by operational staff. To ensure operational staff do not become too cautious in their approach, there needs to be a consistent decision-making process both for recalls and decisions not to recall. The development of a professional culture depends on operational staff feeling confident that defensible, professional decisions will be supported if a serious incident does occur involving a person under supervision. 

There are significant differences in recall practice and culture between the CRCs and NPS divisions. These include differences in the level of management endorsement; staff expectations; the understanding of the RPF; and differences in types of recall. These differences were recognised by Her Majesty’s Prison and Probation Service (HMPPS) Wales in the training activities its staff undertook in the three months after reunification in December 2019. The NPS divisions and CRCs in England should learn from this example. Given the importance of recall decision-making, the NPS and CRCs should prioritise communicating the RPF to staff and embedding a consistent recall process when they are re-joined. 

Public Protection Casework Section (PPCS) and the post-recall process 

The relationship between the central HMPPS PPCS and probation providers operates efficiently. Emergency and out-of-hours recalls are processed promptly, and the PPCS’s advice on the recall threshold is viewed positively by both senior and operational managers. 

Following a standard recall, both responsible officers and the PPCS can review cases and decide to re-release a recalled prisoner under the executive release scheme. The operation of executive release is inconsistent. Responsible officers are uncertain about the operation of the process and the number of releases varies between providers. Consideration for release should not depend on which organisation a person is supervised by. The administration and use of the process should be reviewed. 

The PPCS must refer all standard recall cases to the Parole Board within 28 days of a prisoner’s return to prison. This includes consideration of the Part B risk management report that responsible officers submit to the PPCS within 10 days of a prisoner’s return to custody. This timescale allows time for prisoners to make representations to the Parole Board on the contents of the document. Part B risk management reports include a recommendation as to whether the prisoner should be re-released. The current process for completion is not working efficiently. To complete the report within the timescale, responsible officers must have quick access to prisoners immediately after their return to prison. Access, however, is inconsistent and responsible officers are frequently left without the necessary information to make an informed recommendation on re-release.

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Comments from yesterday:-

Probation staff felt “pressure” from the government to send fewer criminals back to prison for committing new crimes or breaking their licence conditions, a watchdog has found. HM Inspectorate of Probation said a sharp drop in the rate of recall to prison across England and Wales from 2016 onwards was linked to policy changes, and that a reversal was only sparked by a high-profile murder case. Senior National Probation Service (NPS) leaders said that when an “alternatives to recall” strategy was implemented four years ago, there was "pressure from the Ministry of Justice to reduce the number of recalls in their divisions". Someone should take the hit for this.

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"I agree. I really don't think it's fair for Probation Officers and Probation Service Officers to be SFO'd, investigated, suspended then sacked for not recalling Offenders when encouraged and pressured not to recall. I now upload all email communications to Delius that involve recall or not to recall decisions, this would have been unthinkable for me a decade ago."