An Existential Battle

If you work in probation you will be very familiar with the court process and almost certainly the legal profession in the shape of solicitors and barristers. Many of us with some service under our belts will be aware of significant changes in process over the years and in particular cuts in Legal Aid and court closures. 

Things have come to a head in recent weeks with barristers withdrawing their labour. Just as with probation, the press, public and politicians don't understand, or choose not to understand, what's going on and the truth of the situation.

This set of tweets from @edwardhenry1 yesterday sets things out in stark detail and we should all be concerned, not least because it will affect us all, and clients especially. (I have made adjustments to aid clarity).  

The Criminal Bar facing oblivion.

Max J L Hardy wrote perceptively that the public would get a distorted impression of our justice system because of the #WAGATHA trial. Criminal justice is in crisis. And @jimrobottom suggested the same for the mass of civil litigation.

The Tabloids don’t want to run this narrative. Clichés work. People, without wealth or financial resilience are far more likely to get dragged into a Criminal Court, a Family Court, or an Employment Tribunal.

Then, they’re not likely to encounter a ‘fat cat lawyer’ but a junior barrister and/or a high street solicitor, from a small to medium size practice. We’re not talking Baroness Shackleton or Lady Ward.

I’m not qualified to speak about family or employment but imagine that family law practitioners who do not deal with ‘Big Money’ cases are in the same position, or soon will be, as the criminal bar.

Advocates practising in crime are an odd bunch, but likeable. As a rule they like their clients, and care deeply about them. Strange as it may seem, some have been accused of caring for their clients more than their families.

It’s not hype, but reflects a brutally demanding job, which can prove to be obsessional. Like Captain Ahab pursuing Moby Dick, some advocates relentlessly chase after that tantalising fact, or issue that might turn a case. Holidays are sacrificed, as are children’s childhoods.

You are told, as I have been, that you aren’t present, even when you’re actually there, because your mind churns that case or question over & over.

You’d have to be mad to practise in crime. I tried, from 2004 onwards to discourage my pupils from continuing in it, and to transfer. Not one did. Well done btw @MaxJLHardy

My first pupil, the wonderful Jake Hallam QC, started in practice in 1998. I could see then that the GFS [Graduated Fee Scheme for legal aid] would impoverish criminal practitioners as so much was left unpaid. The rates then set never kept up with cost of living & if we aren’t 40% down from 1997 I’d be surprised.

I had more success dissuading my adult sons from following me into the Law. They saw, all too sadly, the toll it took on their childhood, their parents’ marriage & the precarious financial fortunes of a self employed individual or sole trader.

I adore my job, and have deep affection and genuine respect for my colleagues. Every pupil who disregarded my advice and went on to greatness at the Criminal Bar - and those few who sadly did not in spite of their courage, determination and flair, I deeply admire and love.

Because I know what it’s cost them. The price you have to pay whether you succeed or fail (& chance plays a part in that.) So when a Politician derides what we do, I don’t care. I know my value, & part of that is what I’m worth; & I know my colleagues’ treasured value too.

The destruction of a profession, of an Art that can be traced to the prophet Daniel, through the Graeco-Roman era to our own time is shameful. If politicians don’t want to preserve an Independent Bar, incompetence & corruption will follow. Who benefits?

Back to that odd bunch of advocates. They’ll include the brief, hot on detail with an eidetic neuro-diverse mastery of regulations, those who can recite the codes of practice, and those who can hyper focus to a microscopic degree. Then there are those who trust nothing

Not because they are conspiracy theorists, but because they’ve been told “nothing to disclose” too often when there is. Those who venerate Marx & those who espouse anarcho-libertarianism meet as one. It’s a broad church. The link? They believe in Justice & the Rule of Law.

That’s ultimately what compels them to defend, whatever the personal cost, to keep the stream pure, to hold the prosecution to account. A word here about prosecution counsel.

A very considerable proportion of Barristers prosecute & defend. That’s why the Independent Bar is of incalculable value. It’s not partisan. I no longer prosecute but I grew up in the preeminent prosecution set, renowned for its fairness.

Pros Counsel are atrociously paid, & not enough is said about it. You can prepare a case & not get paid if it’s tried at a time you can’t do. The Government’s long term strategy is a mystery. Public Defenders & Pros cost tons more than the Bar. They’re just happy exploiting us.

But it will eventually come to an end. Even altruists will be deterred. The Criminal Bar shall die. No mistake. Then what will those in the other branches of the Bar say? What a pity? Such a shame? It’s time for the Inns and the whole Bar to come to the aid of CBA [Criminal Bar Association].

The Bar Council, paradoxically, might have put on a better show, but there are always those dependable in a tight corner, & others who (despite the best of intentions) are not.
@Ed_LeveyQC has always supported the Criminal Bar & @seanjonesqc is a legend. But we need more.

This is an existential battle. If we are really one Bar, kind words about how much the Criminal Bar is admired, with wistful regrets intimated of envying what we do, will be pure guff unless the whole Bar bends its efforts & potent influence on our behalf.

The leaders of the SBAs [Specialist Bar Associations] and others of titanic reputation & standing in other fields might like to reflect on what we’re all about to lose.

Edward Henry QC

Predictable, Populist, Confused

Does this sound familiar?

"But the solutions proposed are politically driven catchphrase-based policy making"

It's a statement that could be applied to any number of probation-related issues over the last few years and it's regarding a topic we've not covered for some time : drugs. Of course it's a well known fact politicians talk nonsense on the subject and the latest headline-grabbing government initiative is no different. I can't be bothered to read it, but I notice Transform have and the quote is from their recently published analysis:-  

REVIEWING THE GOVERNMENT’S NEW ‘TOUGH’ CONSEQUENCES FOR DRUG POSSESSION

The Home Office has set out its plans to reduce the current levels of recreational drug use across the UK in its new White Paper Swift, Certain, Tough: new consequences for drug possession. The paper follows on from the Government’s most recent drug strategy; it was promised at the time to address the objective of ‘demand reduction’- reducing use - which the drug strategy mostly overlooked in its focus on service provision.

The White Paper’s demand reduction strategy for ‘so-called recreational users’ proposes a model for public consultation (to be piloted in three locations) for how drug possession offences would be dealt with, summarised in this graphic:

Some elements of the proposals appear relatively promising. At first glance, there seems to be a desire to try and avoid the tens of thousands of people caught committing minor possession offences from being drawn into the criminal justice system. Implicit is an acknowledgement that criminalisation of minor possession is both expensive and counterproductive; there is no evidence that blanket punitive sanctions are an effective deterrent and there is substantive evidence that they fuel stigma, create obstacles to proven public health interventions, and undermine the life chances, particularly of people from socially and economically marginalised communities.

This is why ending criminalisation of people who use drugs is recommended best practice from the Government’s own expert advisers (the ACMD), all 31 lead agencies of the UN including The World Health Organisation and UN Office on Drugs and Crime, as well as the Royal College of Physicians, the UK Faculty of Public health, the Royal Society for Public Health - and many other authoritative voices.

Moves in this direction are already underway in 14 police authorities - a range of ‘drug diversion schemes’ where people caught in possession are ‘diverted’ into health interventions rather than the criminal justice system and prosecution. While the law criminalising the act remains in place (often lurking as a threat behind some of the diversion programs), perhaps the best we can say is that diversion represents a form of partial or de facto decriminalisation. Transform has a dedicated page of information and resources about these initiatives.

Notably, the schemes have been lauded by the Drugs Minister, Kit Malthouse, recommended by the Government’s own recent expert review from Dame Carol Black, and are prominently flagged in last year’s new Government drug strategy. So the idea in principle is not a new one.

The White Paper, however, makes no mention of either decriminalisation or diversion schemes (although it does refer to ‘diversionary cautions’, see below). Instead, it promotes language around ‘swift certain and tough’ consequences - proposing the escalating tiers of sanctions described above. The first tier looks a lot like many existing diversion programmes but, worryingly, with a series of financial penalties as well as an offender-paid drug awareness course, which most diversion schemes do not implement. Tiers 2 and 3 move increasingly far away from emerging best practice and, indeed, the entire underlying conceptual thinking around diversion/decriminalisation relating to avoidance of harmful engagement with the criminal justice system, criminal records, stigma, and so on.

Before critiquing some of the details (where the devil inevitably resides), it is worth noting that we can all agree that there should not be a ‘postcode lottery’ for how police deal with drug offences. Currently, you can get very different treatment responses to possession offences depending on where you are caught - ranging from a life-impacting prosecution, to an informal telling-off. This variation is obviously problematic; equality before the law is a fundamental part of the rule of law and the aspiration in the White Paper to address this problem is welcome.

But the White Paper proposals, even acknowledging the vague nod towards diversionary pragmatism, are a step backwards from the best practice lessons emerging around the country. We should not pursue national consistency at the cost of entrenching bad practices more widely and undermining the positive work already being done throughout the UK. Equality should be about equally good policy, not equally bad. If rolled out these proposals would, in many areas, represent a form of levelling down (the proposals have already been rejected by the Scottish Drugs Minister - as a regressive step backwards from their existing diversion program).

We are all too familiar with problems created by drug prohibition - such as the empowerment of organised crime and related violence and exploitation - being blamed on the drugs or people who use them. These problems of punitive enforcement are then routinely used to justify even more punitive enforcement. But with this White Paper, the Government seems to be tacitly acknowledging the harms of criminalisation and the benefits of reform - but showing a pathological inability to make the case for such reforms, show leadership, and call them what they are. It is so invested in the drug war narratives that it seems unable to perceive reform as anything other than weakness or surrender. The result is this strange and confused mess of proposals.

A key problem of the White Paper is that it confuses, or deliberately conflates, issues relating to people who use drugs recreationally with issues relating to people with drug dependencies or problematic use. The paper, including its prominent ‘Swift, Certain, Tough’ title, draws heavily on the US literature on 'swift, certain and fair’ (SCF) sanctions. But while this scholarship on SCF has explored maintaining abstinence amongst drug-dependent offenders (enforced with drug testing - and sanctions, such as 48 hours of immediate custody, for positive results) the focus of the White Paper is specifically on ‘so-called recreational users’ who are not the focus of the SCF literature. Hawaii’s HOPE programme is referenced twice and appears to have been a big influence, but it is a programme for people with histories of dependence in probation-mandated treatment having left prison. None of that is relevant to recreational users - most of whom will not have criminal records, and none of whom, by definition, need treatment.

The White Paper has also pointedly replaced the ‘fair’ element of ‘swift, certain and fair’, with ‘tough’ - a reframing symptomatic of the performative ‘tough on drugs’ populism that runs through the whole paper and its accompanying media messaging. Even for the drug awareness courses mandated in Tier 1 (not dissimilar to the diversion programme in place in Avon and Somerset for example), there is a proposal to not just make the offenders pay for the course but for them to pay more than the cost of the course - an overtly punitive element thrown in for good measure.

The second tier, for those caught in possession a second time, includes what is called a ‘diversionary caution’. This is a formal police record that would appear on certain forms of background checks - in other words, a criminal record. It also involves random drug testing (presumably supervised urine samples - with all the indignities and human rights issues this entails) over a three-month period. A formal charge will be brought in the event of a positive test. So, far from progressive reform, this would de facto criminalise ‘internal possession’ and use (i.e. a positive test) in a way that only a small number of countries, such as Sweden, do at present.

Seemingly drawing on the disastrous and discredited ‘three strikes you’re out’ US policy from the 90s, third-time offenders would not only be automatically charged and receive a criminal record but would additionally be subject to a range of new, non-coincidentally headline-grabbing, punitive sanctions that include:

• Exclusion orders - Preventing access to certain ‘night time economy’ venues. The paper acknowledges there’s no evidence these would work, and it’s not clear how they would be enforced.

• Drug tagging - Remote monitoring of drug use with technology that they concede does not exist yet.

• Passport and driving licence confiscation - Ideas seemingly borrowed from some EU countries (such as Italy - which is unable to show they were effective), these seem particularly disproportionate, having the potential to devastate someone’s life or career - for a possession offence as minor as being caught smoking a joint.

And who is likely to move beyond tier 1, be criminalised, urine-tested, and subject to an additional raft of draconian new punishments? It is not going to be the ‘middle-class drug users’ that the Government seems so keen to single out, but whose drug use tends to take place with the protection that private space and privilege offers. In reality, it will be people who are already most exposed to drug policing and the glaring disproportionality in stop and search; those from economically and socially marginalised communities, and urban black youth in particular. These are also people less able to pay punitive fines or course fees, and therefore more likely to default and end up with a criminal record regardless, even from tier 1. It will be regressive in its impact on the poor and institutionalise the criminalisation of poverty. Yet more levelling down.

It is appropriate to welcome some elements of this White Paper - the acknowledgement of rising use and some of the problems with criminalisation and postcode lotteries, and the commitments to support problematic users. But the solutions proposed are politically driven catchphrase-based policy making, which ignore existing best practice. The proven diversion/decriminalisation approaches that the paper seems to want to benefit from, by their nature require a paradigm shift away from punitive enforcement. That’s the whole point. But the Government's obsession with maintaining its ‘tough on drugs’ posturing has perversely led to proposals that will be incredibly expensive, and are likely to lead to increased criminalisation and harms for the most vulnerable in society - with few, if any, corollary benefits.

Transform will be submitting a more detailed response to the consultation, and we encourage others with relevant personal or professional experience to do the same.

Madness 7

That letter reported by the Guardian on Saturday:-

Dominic Raab
Secretary of State for Justice
By E-mail

19th July 2022

Dear Secretary of State

Single Secretary of State’s View

We are writing to you as the three recognised Probation Service trade unions to share our significant concerns over your recent decision to prevent Probation staff from making recommendations, in written reports and oral evidence, to the Parole Board under any circumstances. The ability to do so has long been a vital and valued part of the parole process, as reflected in the various reviews and surveys of those involved in the system over many years.

Your decision – taken without any consultation with relevant stakeholders in the months after the publication of the ‘Root and Branch Review of the Parole System’ in March 2022 – fatally undermines the Government’s own stated plans to pursue a “professionalisation agenda” for the Probation Service. At the same time removing at a stroke the ability of Probation staff to offer crucial expert opinion in the arena of public protection, which they currently do on thousands of occasions each year.

The decision you have taken to prohibit Probation staff from offering recommendations on prisoner’s progression and release severely endangers the ability of the Probation Service to protect victims of the most serious offences, and indeed the wider public, from the risk of serious harm posed by many individuals involved in the parole system. We offer the following as one of the starkest examples of the clear dangers your decision will unleash on the communities we serve in England and Wales.

Under the catastrophic change you have chosen to proceed with, only a small minority of cases each year will have recommendations presented to the Parole Board by a Secretary of State’s Representative. What you do not appear to have comprehended is that the consequence of your decision is that in thousands of cases annually no recommendation will be offered to the Parole Board, unless it is from an individual commissioned by the prisoner’s legal representative. At an ill-conceived and haphazardly executed stroke you have prohibited Probation staff from being able to explicitly argue the case against progression to ‘open conditions’ and/or release on licence in the multitude of cases where it is the expert opinion of Probation staff that the risks posed by these individuals cannot be managed in such settings. Unfortunately, the clearly foreseeable consequences of this is that the number of prisoners absconding from open conditions, being returned to closed conditions, being recalled to custody and reoffending (including committing Serious Further Offences) will increase as a direct consequence of your decision in this regard. In addition to creating more victims this will also weaken the confidence which the public have in the criminal justice system and increase both public expenditure and the workload of various workers and agencies involved.

This is a truly momentous and dangerous shift in the field of Probation practice, one which brings with it a huge range of easily foreseeable harms such as the increased risk to previous victims as well as others in our communities, the destruction of public confidence in this part of the criminal justice system, increased Government expenditure, potential legal liabilities and significant staff demoralisation (leading to an exacerbation of the employer’s current problems in recruiting and retaining Probation staff). The communications we have been provided with so far by HMPPS – such as they are currently available given the manner they have had to be rushed out and the lack of substantial detail available, both further consequences of your failure to engage in proper consultation on this substantive issue – are riven through with such a variety of contradictions and flaws that our fear is that, if introduced as planned, the parole system in England and Wales will be plunged into abject chaos. We would ask that lessons are learnt from the previous tragedy of the so-called ‘Transforming Rehabilitation’ reforms, where a predecessor of yours failed to listen to those with a wealth of knowledge and experience urging caution in that regard with all too disastrous consequences.

Given the significant concerns we have outlined here we again ask that these plans – such as they are currently constituted – are halted at this stage pending a meaningful period of consultation and engagement with the trade unions, as well as other relevant stakeholders.

We look forward to hearing from you, and as always would be pleased to meet with you at the earliest opportunity.

Ian Lawrence, General Secretary Napo,

Ben Priestley National Officer UNISON

George Georgiou National Officer GMB/SCOOP

Cc: Amy Rees Director General Probation
Sonia Flynn Chief Probation Officer

Madness 6

I notice that the Prison Reform Trust is engaging robustly with the new minister over the parole changes:-

The Rt Hon Stuart Andrew MP 

Minister of State for Justice Ministry of Justice 

102 Petty France 

London SW1H 9AJ 

21 July 2022

Dear Minister, 

Eligibility for Open Conditions 

Thank you for your letter of 16 July in response to my letter to your predecessor dated 16 June. It was good of you to respond so soon after taking up your new role. 

Your letter clarified some of the issues that I had raised, in particular the fact that the new test for transfer to open conditions does not apply retrospectively. It also made clear that there was no consultation outside the department before the change was implemented and that the evidence considered was restricted to the circumstances of “several” recent absconds. It made clear that detailed reasons must be given for a ministerial decision not to accept a recommendation for transfer to open conditions but that the only avenue of appeal against such a decision will be by way of judicial review. 

Your letter also makes clear that the policy change was subject to a safety impact assessment, which concluded that there was no reason to believe that the future safety of those serving indeterminate sentences will be significantly affected. Given what we know about the disproportionate rates of self-harm and suicide amongst prisoners serving the IPP sentence in particular, that seems an optimistic conclusion. I hope it proves to be correct. I’ve also now had the opportunity to study the updated policy framework on the generic parole process, published today. That helpfully sets out the time limits within which ministers have guaranteed to operate (or officials acting on their behalf). Given that that framework has now been published, I would be grateful if we could be given a copy of the equalities analysis that your letter indicated would be completed. 

However, I’m sorry to say that the letter you were given to sign overlooked many of the questions in my original letter, and the revised policy framework sheds no light on them either. Given that the new criteria have been in operation since 6 June, I’m afraid I see no alternative but to ask again for the detail which is currently being denied to the people whose lives are so hugely affected by this change. The questions in my previous letter to which answers remain outstanding are these: 

• Whether any prisoners have had pre-tariff reviews cancelled or postponed because of the new criteria; (I’m distinguishing this from the decisions on hearings that occurred prior to 6 June because we have had heard from some people that consideration of pre-tariff sifts was postponed following remarks made by the Secretary of State in November last year). 

• What guidance about the new criteria has been issued to: 

- Prison staff 

- Probation staff 

- Specialist report writers, including psychologists 

- The Parole Board 

- Civil servants charged with advising ministers on individual cases affected by the change 

- Prisoners 

- Prisoners’ families (I note the intention to update the guide for families on Gov.uk, but that has not yet been done despite the new criteria having been in place since 6 June). 

I should explain that the updated policy framework contains no guidance about how the new tests should be interpreted or what evidence might be relevant in satisfying them. Both the requirement that a move to open conditions should be “essential” and the public confidence test are novel and the manner in which they are interpreted could vary dramatically. Simply repeating the wording of the new criteria does not seem to me to qualify as guidance. 

• Whether prisoners who meet the criteria of low risk of abscond will be denied the opportunity to benefit from open conditions on the grounds that it is considered as beneficial rather than essential to their resettlement; 

• Which minister will be charged with undertaking the scrutiny required by the new procedure; 

• What criteria will determine which cases are personally considered by that minister; your letter appears to imply that all cases in the so-called “top tier” based on offence, and in addition any “high profile” case, will be considered personally by a minister rather than an official. The policy framework does not contain this undertaking but instead makes clear that any case can be considered under delegated authority. Even if it is intended that every “top tier” case will be considered personally by a minister, the question of how officials will decide what represents a “high profile case which may impact public confidence” remains unresolved. On what basis will officials make this judgement, bearing in mind that it has very serious ramifications both for the individual concerned and potentially for the victim of the original offence or their loved ones.

 • What documentation the minister will receive and consider in order to reach a decision in the cases they decide personally; Your letter uses the phrase “full evidence”, with which I confess I am unfamiliar. The Parole Board panel will have considered the parole dossier, typically running to hundreds of pages and evidence given to a hearing if there has been one. Will you? 

• What evidence officials and the minister will take into account in considering the risk to public confidence element of the new criteria; 

• What training officials charged with advising the minister in these cases will receive in risk assessment; we have assumed that officials in the public protection casework section will be responsible for advising ministers on these cases, but we are not aware that all of those officials are probation practitioners. It would be helpful to be clear about who is doing what. 

• What specialist opinion, if any, will be made available to officials and the responsible minister; Your letter says that probation practitioners will consider the first two parts of the test and that you will have access to that advice. But it is not clear if that refers to the reports given to the Parole Board panel or whether there is to be a further assessment by probation practitioners that takes into account the Parole Board panel’s reasoning post-hearing; 

• Whether the ministerial decision-making process will be open to any form of public scrutiny, in line with the government’s approach to the parole process more generally; 

• Whether the Secretary of State will provide the Parole Board with a view on suitability for progression to open conditions at the original consideration of the case; I have written separately about the issue of a “single view” and it may be that you will choose to answer this question in the context of that letter. 

• What estimate has been made of the consequences of these changes for: 

- the casework capacity within the ministry to provide advice 

- the progression of ISPs and the consequential impact on prison capacity 

Given that the new criteria have been in operation since 6 June, it would be helpful to know how they are operating in practice. So I would be grateful if you could indicate: 

- How many pre-tariff sifts have been considered under the new criteria, and with what outcome 

- How many recommendations from the Parole Board have been considered under the new criteria, and of those: 

• How many have been considered solely by officials in the department, with what outcome and on what grounds; 

• How many have been personally considered by which minister, with what outcome and on what grounds;  

• How many in each category have involved a prisoner with one or more protected characteristics and what the breakdown in terms of characteristic and outcome has been; 

• How many have been decided within the timescales laid out by the policy framework for the generic parole process. 

I look forward to your response and the opportunity to clarify these issues for the many people who contact us about them. 

Yours sincerely, 

Peter Dawson 

Director Prison Reform Trust

Madness 5

 The happy pair at the MoJ yesterday:-

Antonia Romeo writes on Twitter:- 

"Final all-staff of the parly term. Brilliant to hear the DPM & Justice Secretary @DominicRaab thank @MoJGovUK colleagues. Huge amount achieved to support victims, reduce reoffending, support the justice system & protect the public. Thank you to the best team in Whitehall!"

Meanwhile a staff member writes:-

"With a few parole board hearing pending I’ve written a note to self on the front of the dossiers the line I’ll be consistently repeating, “due to new rules I’m unable to answer your question”.

It’s only a matter of time before the parole board, the offenders and legal representatives alike challenge the new rules. Currently Probation attends parole board hearings on behalf of Secretary of State. Until 15th July 2022 Probation made recommendations on behalf of the Secretary of State.

Probation no longer make recommendations in case this conflicts with recommendations of the Secretary of State. Probation is therefore no longer representing the Secretary of State at parole board hearings. There is really no point in us being there. Solution: Secretary of State completes his own Oasys and Parom and attends parole board hearings instead of Probation."

Russell Webster publishes interim research results:-

What Do Staff Think About The (Re-)Unified Probation Service?

In June 2021, probation in England and Wales was unified, bringing the part-privatisation of services through the Transforming Rehabilitation (TR) reforms to an end after just seven years. For the last few months, I have been researching professional identity, culture, and practice in probation since the collapse of TR. I’ve interviewed 38 members of staff from across the probation estate, and what follows presents some preliminary findings from this project.

Feelings on unification are mostly mixed: staff are happy that TR has come to an end but frustrated that so much money was wasted on ideological indulgences. Unfortunately, the ‘two-tier’ nature of TR, in which Community Rehabilitation Companies (CRCs) and their staff were viewed as inferior, persists: legacy CRC staff in many regions reported on a perceived ‘second class’ status within the new arrangements. However, many staff also commented on how unification has restored a sense of professional identity, as ‘we’re all one service now’.

Despite general happiness that services are, once again, delivered under the banner of a single, public sector organisation, the sense that probation is not a good fit with the Civil Service is widespread. With TR, there was an obvious ‘bogeyman’ – Chris Grayling, the Justice Secretary when the reforms were implemented – on whom to pin frustrations. In the absence of such a figure since unification, a grey, faceless ‘Civil Service bureaucracy’ has come to (partially) occupy this role. Interestingly, many legacy CRC staff argued that they missed the ‘flexibility’ and ‘dynamism’ of working in the private sector.

Pay, though, is the biggest concern for staff. Probation has not had a meaningful pay rise for a decade. There is a fundamental imbalance between the level of remuneration and the social responsibility involved in keeping the public safe. As such, maingrade practitioners often compared themselves to other public sector professionals (police, nurses, etc.); they argued that they were ‘hidden heroes’ who worked tirelessly throughout the pandemic, only without recognition from the public or in terms of pay. Staff feel overworked, with many expressing the view that it is bad for clients and dangerous for the public. These pressures make both recruitment and retention difficult. Senior management are aware of this issue and are working to fill vacancies, but they cannot ‘magic probation officers out of thin air’.

Quite a few, often more experienced, staff expressed concerns about newer recruits into the service, along with the quality of the PQiP, although these reservations were not shared by Trainee Probation Officers nor Practice Tutor Assessors. This was tied into calls for a greater diversity of life experience in the service. This includes hiring people with lived experience of the criminal justice system – something that is made more difficult by stringent Civil Service vetting procedures – along with more people from minority ethnic backgrounds. Staff of all genders, length of experience, and pay grades reflected on how the service is too white and too female.

The feminisation of probation in recent decades is an interesting and underexplored phenomenon. On why the service has struggled to recruit men, responses can be separated into three: pay, the demography of (social science) courses from which many are recruited, and the ‘caring’ nature of the role. To be clear, I’m not saying that women are prepared to work for less than men; that they’re more suited to probation because ‘caring is a woman’s work’; nor even that feminisation is necessarily a problem. Rather, the need to have an ‘appropriate’ degree for the PQiP has meant a pipeline has been established between it and social sciences courses (like criminology) dominated by women. This, added to poor pay in the service, has meant far more women enter the profession than men.

Professional development beyond the PQiP, however, is not fit for purpose. Mandatory e-learning does not adequately reflect the different learning styles of staff – ironically, something the service prides itself on in its work with people on probation. That said, there was significant evidence of the persistence of ‘probation values’. This is to say that staff continue to be attracted into the profession because of a desire to work with people; to believe that clients can change and help them desist from crime.

The last point should give hope for the future. Many of these issues will take time to fix – one senior manager suggested 3-5 years – but there is a sense among staff, and particularly among senior leaders, that the service is once again moving in the right direction. With yet more political change on the horizon, it is my hope that the uptick in investment in probation we have seen in last couple of years continues and begins to be felt by staff. The people that work in the service are, after all, its most valuable asset.

This is a guest post by Matt Tidmarsh (@matt_tidmarsh), sharing preliminary findings from his research with probation staff.

Madness 4

Here's some helpful tips from the HMPPS Guidance document on how to avoid any awkward moments in front of the Parole Board:-

Language guidance for reports and attendance at oral hearings

We understand that, following the introduction of this new policy, staff will be uncertain about what they can and cannot include in both reports and as witnesses in oral hearings If HMPPS staff tell the Parole Board that in their professional assessment, the prisoner’s risks are / are not manageable in the community, we appear to be telling the Parole Board in terms that the prisoner should remain in custody, in order for protection of the public. This would be providing a view on whether the release test is met, which we are no longer allowed to do. We cannot provide an assessment on whether the RMP would protect the public or say whether we think it is sufficient to manage the risks. It appears we must provide the evidence neutrally without providing an assessment of whether we consider release to be safe.

The following examples are suggested ways of expressing professional assessments about risk and are acceptable under the new policy:

• ‘I have concerns about whether / I do not assess that Mr/Ms X would be likely to comply with the risk management plan on release because…’
• ‘There is little evidence that that Mr/Ms X has addressed the following areas of risk…. Therefore, it is my assessment that the following work remains on the sentence plan for completion.’
• 'Identifying where specific assessed risks are / are not likely to be managed by the plan without explicitly stating this e.g. ‘Risk X requires A, B and C in order to be managed. The RMP provides A and B’.
• ‘The following risk reduction work in closed has been completed / remains outstanding
• ‘There is [some/significant] evidence that Mr/Ms X has addressed outstanding risks and must now develop their resettlement plans as follows’
• ‘My assessment is that it in order to reduce these risks ….. that Mr/Ms X complete ‘prison only intervention’ which is only available in custody’

If you are asked the following, or similar questions, in the oral hearing:

Q: ‘Do you consider the risks posed by Mr/Ms X to be manageable in the community?’ OR ‘Do you consider that this risk management plan is sufficient to protect the public?’

You should respond:

“That is a judgment for the Parole Board to make. The risk management plan I have prepared is my proposal as to how to manage the prisoner’s risk, should the Panel conclude that the statutory release test is met.”

If you are asked whether any risk reduction work remains outstanding, you can answer this question.

If you are asked any questions either by the panel or the legal representative, and you consider that you are being asked to provide a view or recommendation about suitability for release or for a move to open conditions, you should respond:

• ‘It is not my role to provide a view on the suitability of [prisoner name] release or open conditions, but I am able to answer any questions you may have otherwise’
• I / the Probation Service / Prison Service cannot provide a view/recommendation on whether or not to release / a move to open conditions
• Where appropriate and relevant: A single view has been provided by the Secretary of State in this case and I refer you to it
• I cannot provide a view / recommendation on that I’m afraid, but I can provide my assessment of risk and my plan to manage that risk should release be directed

The language below would constitute a ‘view or recommendation about suitability for release or open conditions’ and must be avoided:

• ‘My assessment is that Case X should / shouldn’t be released’
• ‘My view is that further time in open conditions is required prior to release’
• ‘I recommend that Case X is released’
• 'My assessment is that risk is / is not manageable in the community'
• 'My assessment is that custody is / is not required to protect the public
• 'My assessment is that the current risk management plan is / is not sufficient in this case to manage the risks posed by Mr/Ms X'
• ‘My assessment of the likely outcome should Mr/Ms X be released is’
• ‘If you directed release / recommended open conditions for Mr/Ms X, this is what in my view would be essential to manage their risk …..and this is what is currently available in this setting …..’

Madness 3

As probation officers continue to struggle with the absurdity of the recently introduced parole changes, the following contribution being typical of the issues being raised, I thought it would be useful to publish the Q+A section from the official HMPPS guidance document.  

So what an earth is the point of a risk management plan/risk assessment then. If Mr X poses a high risk of serious harm, but the presented risk management plan is the "best case" scenario in terms of managing those risks, if we can't then comment on how likely that plan would manage the stated risks, then it would be impossible for the parole board to know if the person is safe to release if the very people designing and implementing said plan can't comment on its effectiveness. 

This is the problem with rushed delivery and poorly thought out statutory instruments that haven't had scrutiny, debate and proper implementation. As another commentator said, this will either lead to the report writers losing incentive to produce well thought out reports and plans, or will lead to confusion about whether the author's stated purpose in putting forward the plan was that they felt it would be effective or not. This will either lead to a reduction in releases, or the parole board assuming that stated plans are always effective and releasing inappropriately. 

What I can't work out is what is supposed to be achieved by this, what the purpose of the changes are and the lack of transparency is what is causing the anger and confusion. For an organisation that says it is "honest", "transparent" and "works with integrity", it seems to be wholly failing on all counts.

Frequently Asked Questions – Recommendation Changes

Q: Why is this change happening?

Following the Root and Branch Review of the Parole System which concluded in March this year, the Deputy Prime Minister decided to change the way in which recommendations are made to the Parole Board – that HMPPS report writers would not provide a view or recommendation in any cases where the Parole Board are asked to consider release or to recommend a move to open conditions. In certain cases, a single Secretary of State view will be provided to the Parole Board which will take into account the full evidence and risk assessments provided by report writers. This is to ensure that staff providing evidence on behalf of the Secretary of State do not offer an alternative view of a prisoner’s suitability for release or progression to open conditions.

Q: What happens if I submit a report with a recommendation in after 14 July?

Any reports that include a view or recommendation submitted on or after 14 July will be rejected by the Parole Board and will need to be rewritten. Where this happens, PPCS will request that the report writer amends the report and resubmits it to PPCS so that the case can be referred again to the Parole Board.

Q: What about the open test? Do I still have to provide a recommendation?

From 14 July onwards, you must not provide a view or recommendation about the suitability of a move to open conditions. However, staff can still provide the information and evidence in respect of all three criteria of the test in order that the Parole Board or Secretary of State can reach a decision on whether open conditions are suitable.

Q: I am worried that because I am no longer allowed to say whether I assess someone as being unsafe to be released, that people who otherwise would have been kept in custody will now be released. What should I do?

If you are concerned that release has been directed for someone who presents a public protection risk, and you believe that the Parole Board’s decision was irrational, in that there was no evidence presented to support the decision, or it was procedurally unfair, a request for reconsideration can be made.(Reconsideration Mechanism Guidance - GOV.UK (www.gov.uk)). This enables the Secretary of State to ask the Parole Board to reconsider the decision in certain circumstances. If you think this may apply to your case, or you have significant concerns about the possibility of release and think we may need to use this mechanism, please speak to ppcs.policy@justice.gov.uk as soon as possible.

Q: Does this have anything to do with the ‘Johnson’ judgement?

No. Separate communications will come to staff about that judgement, and staff do not need to do anything differently in relation to the Johnson judgement.

Q: Are HMPPS staff allowed to express a view about suitability for release outside of the report and oral hearing – for example, are we allowed to express a view in a MAPPA meeting?

Yes. There is nothing preventing you from discussing your professional assessment and views outside of the parole reports or oral hearings, including in any kind of professionals meeting and including in conversation with the prisoner. Having an honest and transparent relationship with the individuals we supervise is crucial to assessing and managing risk and enabling people to change.

One of the concerns staff may have is that if they express their view about the suitability of release to the prisoner, this could be repeated by the prisoner in the hearing and staff could be questioned whether this was the case. If this happens, staff should respond by explaining that they are no longer allowed to provide a view or recommendation in the hearing.

As part of preparation for the hearing, HMPPS staff should discuss the process with the prisoner; it will also be important for staff to explain these changes to prisoners. This could include explaining that in their evidence, staff will advise whether risks have reduced, what the sentence and risk management plan is and what, if any, further measures are required to reduce risk. Staff should explain that they won’t be able to express a view or recommendation about suitability for release, and that if questioned about their view, they will have to politely decline to answer. Staff should tailor their approach to each individual they work with in order to establish what would be helpful to explain and how.

Q: What should I tell the prisoner?

It will be important as part of your ongoing conversations with the prisoner to discuss this change. We are planning to ensure that information provided to the prisoner about parole and recall reports includes information about these changes. It may be that we are not able to produce these new leaflets prior to 14 July. You can and should talk about release and have a full and frank conversation as you normally would. It would be helpful to reassure prisoners that any progress they have made in custody will be properly reflected in the reports and hearings. You may wish to consider whether they would benefit from any additional support and what the impact of these changes will be on their wellbeing.

Q: What does this mean for executive release?

This is one of the issues that the central policy team are looking at urgently. We will be able to update staff in due course. We will be updating this document so please save the link.

Q: I sent my report off before the 14 July – why am I being asked for it to be re-written without a recommendation?

PPCS are not able to refer your report to the Parole Board unless other mandatory documents are also able to be sent. Where these mandatory documents are outstanding, this may prevent PPCS from sending the dossier, including your report, to the Parole Board prior to 21 July. In these cases, PPCS will contact the Probation Practitioner and request that the report is amended to remove the recommendation.

Q: Where can I find the new reports?

The new Part B and C templates will be on NDelius where you would usually find them. The On/Post tariff PAROM1 templates and addendums will no longer be on the digital platform, but will be available in a Microsoft word IWP template linked to NDelius. The location for the pre-tariff PAROM1s and addendums will not change, but they will be replaced with new templates to reflect the changes. All the new templates are on nDelius here: Parole (justice.gov.uk)

Q: What is the Parole Board doing about recommendations from previous parole reviews in dossiers?

The Parole Board are aware of the changes and have agreed that previous recommendations will not be removed from dossiers. The Board will make their decision based on all of the evidence before them. Specifically, it will not be necessary to remove the recommendations from the reports, and report writers can expect Panels to question them on their recommendations. If your report was submitted prior to July 14 with a recommendation, it is fine to continue as normal and discuss your recommendation.

Q: What if a Parole Board panel member or solicitor / barrister asks me for my view on suitability for release during the oral hearing?

The Parole Board is aware of these changes. It is very likely that Panel Members and the prisoner’s legal representative will ask you whether you assess the risk to be manageable in the community, whether your risk management plan is considered sufficient to protect the public, whether the prisoner is safe to be released or is suitable for transfer to open conditions. You cannot answer as it would constitute a view on suitability for release/open and instead should politely tell the Panel Members and/or the prisoner’s legal representative that your role is not to provide the Panel with a recommendation but rather your assessment of the prisoner’s risks. If this does happen, you may wish to speak to your line manager following the hearing.

Q: Are lawyers allowed to ask our opinion about release in an oral hearing?

The Parole Board rule changes do not bind legal representatives for the prisoner in the same way that they do HMPPS and Parole Board panels, so yes, they could ask this question in a hearing. As stated above, and in the same way that other inappropriate questions to witnesses that are beyond their professional remit are handled, you will need to respond by politely declining to answer. You should explain that you cannot provide a view on suitability for release and that you are able to answer other questions within your remit.

Q: What language would constitute a ‘view or recommendation about suitability for release or open conditions?’. How can I check whether what is in a report is allowed?

We have set out some examples of language above but we recognise that there may be uncertainty as this policy is embedded. If you are a report writer, you can ask your manager to have oversight of the language. You can review your reports in line the Parole Quality Assurance Framework tool when it is published, check with your line manager if you are a report writer or check with the ppcs.policy@justice.gov.uk who can help check whether the language in the report is within the policy.

Q: How will I know if my case is a ‘noteworthy’ case where a single Secretary of State view is being provided?

PPCS have a list and will inform those staff involved. For those cases due to be heard imminently, the staff involved have already been told. PPCS will provide additional support to these staff in what we anticipate will be a very small number of cases.

Q: What are the consequences if it is judged that a practitioner has provided a ‘view or recommendation’ to the Parole Board?

It is possible that the decision by the Parole Board could be reconsidered, set aside or legally challenged and possibly changed. During this transition period try not to worry as it is going to be difficult to balance all the changes. Prepare for each case and be ready for what you can/cannot comment on. We know all staff will make every effort to implement this change at short notice, but we also appreciate that there may be cases where a recommendation has been provided in error. If staff think this may be the case, they should discuss this with their line manager and let the PPCS Case Manager know.

Q: Should practitioners be providing information to PPCS prior to writing a parole report or Part B / C to inform decision-making about cases being ‘top tier’ or ‘Single Secretary of State view’ cases?

PPCS work with the Secretary of State to initially identify cases considered to be noteworthy. If circumstances arise where practitioners think a case should be considered for a ‘Secretary of State view’ process, they should contact PPCS immediately. We anticipate that there will be very few cases in this category.

Q: Will there be recommendations about suitability for release or open conditions in psychology reports?

Where psychology reports are written by HMPPS staff or external staff commissioned by HMPPS, they will no longer contain recommendations about suitability for release or a move to open conditions from 14 July onwards. Psychology staff and Probation Practitioners can discuss and record in case notes their professional views about suitability, but these views must not be provided to the Parole Board.

Q: Does anything need to change about the rest of the report now that a recommendation about suitability for release or a move to open conditions is no longer allowed?

Not necessarily. The rest of the report should remain the same. The analysis of risk and what is best required to reduce risk, factual information as well as analysis about offending behaviour patterns, information and analysis about risk management and sentence planning should all remain the same. We do need to be confident that we are providing all of the evidence that would enable the Parole Board / Secretary of State to assess whether the release / open test is met. It will be important to be as specific as we can about what the risks are and how best we intend to manage them in various scenarios. We will need to adopt a ‘show, don’t tell’ approach whereby our analysis can inform decision-makers in the absence of us being explicit about our own conclusions.

Q: Will the rest of the oral hearing be any different?

Yes. Witnesses should expect Panels to question them even more closely on their risk assessment. Prepare in your usual way and seek support from your line manager if you need to.

Q: Does the Parole Board know about these changes?

Yes, and HMPPS staff have been working closely with them to ensure that we can continue to deliver our service without disruption.

Q: Will other witnesses be able to provide a view?

Yes, for example psychology reports commissioned by the legal team of the prisoner, or witnesses attending from outside of HMPPS. We must not comment on an external recommendation. We are not able to say whether we agree or disagree.

Q: Do the legal representatives of the prisoner know about these changes?

Yes, communications are being sent to legal representatives outlining these changes.

Q: I have started my report in the template in NDelius that has the recommendation section. Do I need to move everything on to a new template?

Report writers should use the new templates for all parole reports, Part B and Part C reports for all reports due for submission on or after 14 July. If you previously began these reports on the old template, you need to move the content over to the new report in order to submit it on or after 14 July. In the rest of the report, you must not provide a view or recommendation about the suitability of release or a move to open conditions.

Q: Is the Parole Quality Assurance Framework changing?

There will be changes to the questions in the quality development tool. The tool was due to be refreshed in the next couple of months with changes relating to the EPF2 tool, the new open test and questions relating to mental capacity now included. We are now bringing forward the publication of the latest version to coincide with these changes in order to include a new question relating to changes to recommendations.

The process whereby practitioners no longer require the tool applied to their reports following 3 successive ‘Good’ ratings is not changing. With all parole reports, the SPO is expected to have a Touch Points Model conversation with the Probation Practitioner. This should now always include a check by the SPO for any language in the report which could be considered a ‘view or recommendation about suitability for release’.

Q: Am I allowed to include in the report any views from the prisoner on release?

This would mainly be the remit of the prisoner or their representative rather than for HMPPS to provide. Report writers can include information about whether a prisoner has expressed intentions regarding compliance with a release plan, or other information and analysis pertinent to risk and how it might be managed. This might include assertions by the prisoner that they are worried they would go on to commit an offence upon release for example, or they have expressed concerns that they will not cope in an approved premises.

Q: If an addendum parole report is due after 14 July, can it refer to what the recommendation was in the original report that was submitted prior to 14 July?

No. You cannot make any reference in an addendum report to a view or recommendation about suitability for release that you made in the PAROM1.

Q: If I’ve submitted a parole or recall report previously with a recommendation, but the oral hearing is after 21 July, can I repeat the recommendation I have already given in the hearing?

Yes. If the report was submitted before July 14 and contained a recommendation, you can discuss it. See the transitional arrangements for more advice.

Q: Recall cases – for determinate cases that go to oral hearing, is the practitioner allowed to repeat the recommendation they make in the part B / C?

Yes. If you have written the report and submitted it before 14 July, you can repeat that view or recommendation in hearings on and after 21 July. Reports submitted on and after 14 July should not contain a recommendation about the suitability for release or move to open conditions.

Q: If the POM and COM have different views about risk and progress etc, will that be allowed, or will there still be a requirement to align your views prior to writing a parole report, if there is no clear recommendation?

There is still a requirement for reports by POMs and COMs to align.

Q: If I am in an oral hearing for a case where there is a single Secretary of State view provided, and I am asked whether I agree with the SoS view, what do I say if, in my professional assessment, I disagree?

You should say politely that it is not within your remit to answer and that you can answer questions about your own assessment.

Q: How will it be possible for the panel or the legal representative to challenge my professional views in an oral hearing if I can no longer provide a recommendation?

The responses from the witness can always begin ‘I cannot provide a view on suitability for release, but in respect of that question about risk…..’. A witness can always ask for the question to be repeated, or to check the understanding of the question again by asking for further clarification.

It is right that legal representatives and the panel can challenge professional assessments in hearings. As always, witnesses will need to be prepared to evidence their assessments, but this will no longer involve them expressing a view about the suitability of release.

It is possible that Panel Members and, very likely that the prisoner’s representative, will ask report writers for their view as to whether the prisoner is safe to be released or suitable for transfer to open conditions. When answering these questions, report writers should tell the Panel Members and/or the prisoner’s legal representative that their role is not to provide the Panel with a recommendation but rather their assessment of the prisoner’s risks.

Q: Will there be a change to ability to request fixed term/standard recalls?

No, this process will remain the same.

Q: Will the Parole Board still set targets for prisoners within their decision letters?

Yes, nothing about the decision letters will change for now.

Q: Can I recommend a fixed or standard term recall in a Part A recall report still?

Yes. There are no changes to Part A recall reports. This is because Part A reports do not go before the Parole Board for a decision to be made. The changes in this document only affect those decisions relating to the Parole Board.

Q: What will this mean for Victim Liaison Officers (VLOs) who won't be able to advise victims of recommendations being made?

The way VLOs communicate the parole and recall processes to victims will change and the victims' team are issuing specialist guidance separately to VLOs. It will continue to be important for POMs and COMs to liaise regularly with VLOs at all key points in the sentence.

Q: Can we confirm whether or not our risk management plan is robust enough to manage a prisoner on release?

No, this is not allowed.

Q: What do I need to do if a panel member wants me to answer a question that is now outside my remit?

You must reaffirm that you cannot provide a view or recommendation about suitability for release or a move to open conditions. If you feel you were put under undue pressure to answer a question outside of your remit, you may then wish to inform your line manager of the incident, following the hearing.

Frequently Asked Questions – Open Test

Q: I thought we’re not supposed to talk about the third criteria for the open test anymore?

Decisions about whether the third element of the new test applies in individual cases will now be a matter solely for the Secretary of State or his delegated official. However, HMPPS must still provide information and evidence, where available, to enable that decision to be made. This could include information about media interest, impact on the local community or other information relevant to the issue. What HMPPS staff and the Parole Board are no longer required to do is assess or analyse whether a move to open conditions would undermine public confidence.

Q: When discussing the open conditions test could witnesses be asked to provide a yes or no response as to whether the prisoner is, for example, at low risk of abscond? Will this mean that the witness is providing a view about the suitability for a move to open conditions?

The witness could be asked a question like that, yes. We do not consider responding truthfully to that question to constitute ‘providing a view’. The witness is providing their professional assessment to an issue of risk and how it is managed and not stating whether they think the prisoner ought to move to open conditions.

Q: What about reports that have already been written without reference to the new open test?

There is no requirement for the Prison or Probation Service to provide a further report, where one has already been submitted, unless it is directed by the Parole Board or requested by PPCS.

Where an oral hearing is underway and reports have been submitted, practitioners should be mindful that they may be asked about the case in the context of the new test at the oral hearing, particularly where the Parole Board is considering recommending a move to open conditions. Where the Parole Board directs an update, this must be provided.

Q: Is there still a presumption that Terrorist and Terrorist Connected Prisoners are unsuitable for open conditions?

Yes. Terrorist and Terrorist Connected Prisoners are presumed to be unsuitable for open conditions unless exceptional circumstances can be evidenced. Alternative options should be considered e.g., a Progression Regime. It is for PPCS to determine whether the circumstances are exceptional.

Q: How do I apply the new open test?

We no longer apply the test and instead provide evidence and information to allow others to assess whether the test has been met. This is a professional judgement and will depend on the specifics of the case.

Q: Do I need to evidence whether the prisoner meets the new open test?

You must provide the evidence and information about the criteria to allow the Parole Board / Secretary of State to assess whether the new open test criteria have been met.

Q: How much evidence does the Parole Board need to establish whether someone is a low risk of abscond?

The new open test has not changed the process for assessing a prisoner’s risk of abscond, and the assessment remains one based on professional judgement. This should continue to be completed by prisons in the normal way. In terms of the amount of evidence the Parole Board will require, this will be different depending on the nature of the case.

Q: I have a high-profile case where there was a significant impact on the community. Am I allowed to put this in the report?

Yes. When analysing the impact of the offending behaviour or providing analysis on the risk management plan, including issues relating to the local community, you should provide this information as part of the report. You are no longer required to specifically assess whether a move to open conditions would undermine public confidence.

Q: What criteria will the Parole Board apply when considering whether a prisoner should move to open conditions?

From 28 June 2022, the Parole Board will only be deciding whether the first two aspects of the new open test criteria have been met. The Secretary of State Directions to the Parole Board have been updated to confirm this. A copy of these is available via this link: Secretary of State's Directions to the Parole Board - Transfer of ISPs to open conditions.

Q: How will the third criteria of the open test be applied by the Secretary of State?

The third part of the open test is to evidence that ‘a transfer to open conditions would not undermine public confidence in the criminal justice system’. Where the Parole Board recommends a move to open conditions, the Secretary of State is responsible for deciding whether to accept or reject this recommendation. As part of this, the Secretary of State will consider whether all three parts of the new test have been met.

Q: Do I need to automatically move an ISP currently in open conditions back to closed based on the new test?

No. The new test should not be used as a reason for a prisoner’s removal to closed conditions where an adverse development has NOT occurred. If an open prison considers that prisoners no longer meet the new criteria, this cannot be used as a reason to remove them to closed conditions. Where an adverse development has occurred, the new test should be applied when completing a LISP4 i.e. they have absconded, assaulted someone etc. or there are changes in behaviour which the prison assesses results in the ISP’s risk being unmanageable in open conditions.

Q: Should I apply the new test for a move to open conditions when completing the LISP4 for an adverse development?

Yes. As part of the recommendations within the LISP 4 to PPCS, practitioners should now only consider the first two aspects of the new test for open conditions. PPCS remain responsible for reviewing the case and deciding whether the prisoner should be issued with a warning letter, remain in closed until the next scheduled parole review or refer the case to the Parole Board for advice on their continued suitability for open conditions/refer the new information to the Parole Board where there is an ongoing parole review underway.

REMEMBER: When considering whether to raise an adverse development and move a prisoner back to the closed estate, prisons should consider whether the behaviour displayed by the prisoner can be managed within open conditions i.e., does not present an escalation of risk, and should be dealt with in line with local prison processes. In these cases, the LISP 4 does not need to be submitted to PPCS.

The new test should not be the reason for an ISP’s removal to closed conditions, but it should be taken into consideration as part of the LISP 4 where removal to closed has happened and continued suitability is being considered.

Madness 2

Napo published their view of the parole changes yesterday in a mailout to members:-

Parole Board Recommendation Chaos 

National Officer Ben Cockburn provides an update for members on the recent decision of the Secretary of State for Justice to prohibit Probation staff from making any recommendations to the Parole Board on progression or release, either in written reports or as witnesses at Oral Hearings.

These are fundamental changes to our ability to exercise professional judgement, and express our evidenced opinions, in making these recommendations to the Parole Board. The Secretary of State for Justice snuck these through Parliament without any advance consultation or debate on the 30th of June, for full introduction just three weeks later.

This is a ministerial decision, with full responsibility for the current chaotic situation – which we believe will unfortunately only deteriorate further in the coming days, weeks and months – resting entirely with the Secretary of State for Justice, including the cowardly and haphazard manner in which these changes have been introduced.

The decision to launch this assault on the professional integrity and independence of Probation staff undermines – perhaps fatally – the stated plans of HMPPS to pursue a “professionalisation agenda” for the Probation Service, given at a stroke it removes our ability to offer valuable expert opinion to the Parole Board, which we currently do in writing and verbally on thousands of occasions each year.

It remains to be seen how senior leaders and managers in the organisations involved can possibly recover any credibility on this issue when the actions of the Secretary of State appear in such direct opposition to their stated aims.

This is a wholly unwelcome, dangerous and momentous shift in a crucial area of Probation practice, one which brings with it a huge range of harms such as the increased risk to previous victims as well as others in our communities, significant staff demoralisation (leading to an exacerbation of the employer’s current problems in recruiting and retaining Probation staff), the destruction of public confidence in this part of the criminal justice system and increased Government spending.

We would also note a growing backlash from others regarding these plans – including other trade unions, opposition political parties, relevant charities, members of the Parole Board and those in the legal profession – and will be looking to communicate and coordinate with those who can support us going forward.

The communications and guidance we have seen so far from the employer to Probation staff are full of various contradictions, gaps and flaws, possibly evidence that many in the HMPPS who should have been working to plan such a fundamental change received little or no warning from the Secretary of State and those close to them.

Our very real fear is that, if introduced as planned, the parole system in England and Wales will be plunged further into chaos. It is further evidence that members of this Government have no interest in learning any lessons from the experience of ‘Transforming Rehabilitation’, where they also failed to listen to those with a wealth of knowledge and experience urging a different direction in that regard with all too disastrous consequences.

Napo is absolutely opposed to these changes and have made, and will continue to make, our member’s outrage at this situation clear to those involved in our contacts with HMPPS senior management and at a ministerial level. Given the significant concerns we have outlined we are asking that these plans – such as they are currently constituted – are halted pending a meaningful period of consultation and engagement with the trade unions, as well as other relevant stakeholders.

--oo00oo--

A legal view of the parole changes from No5 Barristers Chambers:-  

Changes on the way to the Parole Board Rules

On 30 June 2022, the Secretary of State for Justice laid a statutory instrument (S.I. 2022/717) making significant amendments to the Parole Board Rules. These are (in the main part) due to come into force on 21 July 2022. The main changes include a provision for public access to Parole Board hearings, and enhanced powers for the Secretary of State to influence the Board’s decision-making process.

Secretary of State’s powers

The government website release refers to the “new powers for Deputy Prime Minister to oppose and challenge the release of dangerous offenders” though that title owes little to the legal framework of course and more to the political situation.

The Minister receives extra powers to challenge Parole Board decisions – including where new, violent behaviour by offenders comes to light – and to give his own view earlier in the process.

There appears to be an attempt to centralise control at the MOJ, with the announcement:

“Recommendations for release or moves to open prison for the most serious offenders - including murderers, rapists, terrorists and those who have caused or allowed the death of a child - will also now be made by the Deputy Prime Minister before going to the Parole Board for its final decision.

After carefully considering expert and professional advice, the Deputy Prime Minister will give his view on whether the prisoner would be safe to be released. Making the ministerial view clear from the outset will provide another safeguard to help keep our streets safe from dangerous prisoners – removing any ambiguity from the process."

An amendment is introduced to Part B of the Schedule to the Rules, so that it shall remove the existing provisions asking for views on suitability for release and instead insert:

“1Z.—(1) Reports relating to the prisoner should present all relevant information and a factual assessment pertaining to risk, as set out in the paragraphs of Part B of this Schedule, but the report writer must not present a view or recommendation as to the prisoner’s suitability for release or move to open prison conditions.

(2) Where considered appropriate, the Secretary of State will present a single view on the prisoner’s suitability for release.”

Therefore prison and probation staff will no longer be allowed to give the Parole Board their recommendations or opinions on the decision to be made (as least not in writing – perhaps another reason why an oral hearing is a fairer process in the future). It is far from clear that this change has been made in consultation with the Parole Board or shall be regarded as a welcome change by its judicial panels.

More worrying still, for those who believe that those who deal with the prisoner’s rehabilitation may have the more appropriate view to give than a politician, or who feel that the current test that allows the independent judicial Parole Board to continue detention whenever it is necessary to do so for the protection of the public is a sufficiently difficult test to surmount until rehabilitation is achieved, is the future spectre that:

“In due course this will be bolstered by further reforms, including a tougher Parole Board release test and powers to scrutinise and block the release of the most dangerous offenders.”

Hearings in Public

Another headline amendment is the provision to hold oral hearings in public where the panel chair considers, either on their own initiative or on an application to the Board, that it is in the interests of justice (rule 15 as amended). According to the Secretary of State for Justice, Dominic Raab, the goal of this measure is to maximise transparency “so victims and the public can see justice being done”.

This amendment has been long expected since the Worboys case, and a case initiated in 2019 by Charles Bronson in which the Ministry of Justice indicated this change would be made.

Setting Aside Final Decisions

The amendments also allow for greater powers in relation to the reconsideration of Parole Board decisions. Previously, the Board could only set aside a decision on the grounds that the decision is irrational or procedurally unfair. The amendment to rule 28 itself adds the further power to reconsider where the decision “(a) contains an error of law”. Rule 28 has additionally been amended to expand the scope of decisions which can be reconsidered to include those prisoners serving a “serious terrorism sentence”.

Furthermore, a new Rule 28A allows the Board to set aside its own final decisions and directions where it is in the interests of justice to do so and where one or more conditions are satisfied: (1) where the Board would not have made a decision “but for an error of law or fact”, or (2) where either new information is available (and the rule does not specify or seemingly require that this is information that could not or should not have been before the panel originally); or “a change in circumstances relating to the prisoner that occurred after the direction was given, had occurred before it was given.” (this latter point doing no more than state the law as decided by the Divisional Court in 1999 in the case of R v Parole Board ex p. Robinson).

By rule 28A(11) the duty to release the prisoner and give effect to a Parole Board direction to release (under Chapter 2 of Part 2 of the 1997 Act or Chapter 6 of Part 12 of the 2003 Act) is suspended when an application is made “pending the decision under paragraph (3)”. Late – even unfounded – applications (within the 21-day window) appear capable of unfairly delaying a release.

On the other hand, the positive news for prisoners is that they are also one of the parties entitled to invoke this mechanism of reconsideration against a non-release decision said to be amenable to the test in rule 28A.

These modifications can be read alongside an accompanying provision in section 133 of the Police, Crime, Sentencing and Courts Act 2022 which has amended section 239 of the Criminal Justice Act 2003 to provide for the power to make these specific rules.

Applications to terminate IPP Licences

There are amendments to Rule 31, which governs applications to terminate IPP licences. An IPP licence can now only be terminated when the Secretary of State makes a “reference” to the Board. No longer can “applications” be made under the rule. Again, this rule change reflects s.138 of the Police, Crime, Sentencing and Courts Act 2022. The purpose does not appear to prevent applications (at least annually made), which must be referred, but it puts the procedure more on the footing of other referrals made to the Board such as under s.28 of the Crime (Sentences) Act 1997 which are initiated in the process procedurally by the Secretary of State.

Further procedural changes

The amendments further provide for a series of important procedural changes.

For example, Rule 21 now allows the Board to make a decision to conclude on the papers after it had been directed to an oral hearing, if it considers it is no longer necessary for reasons other than where further evidence is received by the Board. The previous obligation to conduct the oral hearing that has been directed unless there was new evidence to change the appropriateness of that course has been removed. It is unclear whether prisoners will have legitimate expectations frustrated that no doubt do not assist motivation in rehabilitation progress. The new rule 21 will allow a decision on the papers after a direction for an oral hearing where that is said to be (a) in the interests of justice; OR (b) to effectively manage the case; OR (c) for such other reason as the panel chair or duty member considers appropriate, including where further evidence is received by the Board.

Rule 27 summaries and disclosure are expanded in application, allowing for the disclosure of the Board’s recommendations comparable to the disclosure of its decisions.

Madness

From Twitter yesterday:-

Academic - "Very concerned to see that psychology and probation staff being directed to give no opinion in parole boards. This seems to make a mockery of asking for a specialist opinion. It is driven by politic rather than evidence based practice."

Nick Hardwick - Eh? 

Academic - "It will not make the public safer and will make rehabilitation more difficult and I suspect be a barrier to genuine desistance. The idea that the Justice Minister has any real idea about risk management than the professionals is frankly absurd."

Academic - "It seems that there has been directive today given to HMPPS psychology and probation staff about not being able to give recommendations to the parole board. Imagine from MoJ would be good for them to confirm or refute."

Academic - "Have seen it come up on several forensic groups practitioners are involved with. If true it’s deeply worrying state of affairs."

Nick Hardwick "Madness - again"

Academic - "It would seem so, poor sighted and not in interest of risk management, public protection or rehabilitation. Maybe Dominic Raab could clarify this is not the case."

PO - "Hastily scheduled staff briefings throughout probation. All reports now have to be written on new 'template' avoiding any mention of a 'recommendation.' How weak and poorly-led is the probation service that it was not even consulted!"

--oo00oo--

This from Inside Time 11th July 2022:-

Parole Board will no longer see recommendations from professionals

Psychologists, prison staff and probation officers are to be banned from telling the Parole Board whether they think prisoners should be released.

Under the present system, parole panels considering applications for release are presented with reports from professionals who have worked with the prisoner. The reports set out details of the case, make risk assessments, and recommend whether the individual should be released.

Later this month the system will change so that the parole panel still receives the separate reports – but without recommendations. In a few of the most serious cases, the Justice Secretary will offer a “single view” recommendation, drawing on the evidence from the professionals. However, in the majority of cases the Parole Board will be left to reach a decision without seeing any recommendations.

The Ministry of Justice told Inside Time that the new rule would apply to “all cases that go through the parole process, regardless of sentence or offence type”.

The rule-change was approved by Parliament without debate on June 30, via a Statutory Instrument. It will take effect on July 21, the Ministry of Justice said. All staff working for HM Prison and Probation Service will be affected – including forensic psychologists who have assessed the prisoner, prison officers who have worked with them, and probation officers who have monitored them.

Justice Secretary Dominic Raab explained the reason for the rule-change in a House of Commons exchange on July 5. Labour MP Kate Green asked: “Careful parole decisions are important to minimise reoffending. Can the Justice Secretary explain why new Parole Board rules will mean that expert report writers will be forbidden to provide a view on suitability for release of the most serious offenders?”

In response, Raab said: “At the moment, when the vital question of risk is assessed, there is a risk that separate reports, whether from psychiatrists or probation officers and those who manage risk, may give conflicting recommendations. Therefore, in those serious cases … there will be one overarching Ministry of Justice view, so that the Parole Board has a very clear steer.”

Peter Dawson, director of the Prison Reform Trust, has written to the Ministry of Justice questioning the justification for the rule change, asking why no consultation was carried out, and seeking clarification of how it will work.

In his letter he said: “Given that the reports in question are gathered explicitly to inform those decisions, it seems extraordinary that the Parole Board should be denied the professional, expert opinion of the people compiling them.”

He also queried whether the professional ethics of the individuals writing the reports would allow them to decline to express an opinion if they felt that a person’s safety would be put at risk by their failure to do so.

--oo00oo--

I see the Prison Reform Trust are on the case:-

Victoria Atkins MP 

Minister of State 

Ministry of Justice 

102 Petty France 

London SW1H 9AJ 

4 July 2022

Dear Minister, 

Further parole changes made on 30 June 

I wrote to you on 16 June about major changes to the parole system announced by press release on 5 June. I explained that those changes came into effect with no accompanying information for either staff or prisoners. We are already hearing accounts from prisoners serving very long sentences who have been informed of those changes by means of a note pushed under the cell door. But to be fair to prison staff, there is still nothing that they can draw on to explain the practical implications, or what prisoners can do to meet the new tests you have set out. Your failure to prepare for such a significant change has created a risk to the safety of the people most affected by it, and distress for the families on whom they depend for support both now and in the future. 

So it is deeply concerning that you should now have repeated this inadequate process in the publication on 30 June of new Parole Board rules. The majority of those new rules implement a policy on public hearings on which you consulted widely and published a detailed reasoned response to consultation. While we disagreed with the policy you chose to pursue, the process of arriving at it was transparent and resulted in detailed provision designed to meet the many concerns which respondents raised. As a result, it should at least be possible to explain to prisoners and their families what those various safeguards are, and it is disappointing that you have chosen not to do so at the moment the policy is implemented. 

For the remainder of the new rules, so far as we are aware there has been no process of consultation or consideration outside the department of their practical implications. In particular, provision is made for a “single view” from the Secretary of State to inform Parole Board panels considering both release and transfer to open conditions. The only explanatory text accompanying the statutory instrument appears to be contained in the accompanying press release, which says:

 Recommendations for release or moves to open prison for the most serious offenders – including murderers, rapists, terrorists and those who have caused or allowed the death of a child – will also now be made by the Deputy Prime Minister before going to the Parole Board for its final decision. 

Although the general public is unlikely to realise this, we assume that what it means in practice is that those recommendations will be made in the overwhelming majority of cases by officials acting with delegated authority. So, similar questions arise as in my previous (so far unanswered) letter: 

• To which cases will this process apply? The press release appears to imply that it will be a “top tier” of 700 or so cases annually, but of course the Parole Board rules apply to all cases considered by the board. 
• Who will those officials be? 
• How will they be trained and what will be the basis of their expertise? 
• What access will prisoners have to them? 
• What access will parole board panels have to them? 
• To what criteria and guidance will they work in forming a single view on the Secretary of State’s behalf? 

The statutory instrument raises at least two other questions on which the accompanying press release is wholly silent. 

First, it forbids report writers (and, on the face of it all report writers whether or not employed by the Secretary of State) to provide a view on the prisoner’s suitability for either release or transfer to open conditions. Given that the reports in question are gathered explicitly to inform those decisions, it seems extraordinary that the Parole Board should be denied the professional, expert opinion of the people compiling them. So far as we are aware, there has been no explanation given for this unusual prohibition. So it would be helpful for prisoners and their families to be told: 

• The reason for this prohibition on the expression of a professional opinion. 
• To which cases it applies (all, or the “top tier”, or some other yet to be defined cohort) 
• To which report writers it applies, and how such a prohibition will be enforced if it applies to report writers not directly employed by the Secretary of State 
• Whether the prohibition is compatible with the professional ethics of the report writers concerned. For example, can a report writer decline to express an opinion in a case where they believe a person’s safety would be put at risk by not doing so? 
• Whether it will apply retrospectively, with opinions from previous dossiers excluded, or censored from dossiers currently under preparation or disclosed 
• Whether officials acting under the Secretary of State’s delegated authority who will have the freedom to express an opinion will also be involved in explaining to prisoners in the years leading up to parole what they must do to satisfy them that either a move to open conditions or release may be recommended

Secondly, in obvious contradiction to the statement in the accompanying press release, the new rules suggest that the Secretary of State will form a “single view” on a prisoner’s suitability for release only “where considered appropriate”. So it would be helpful to know:

• What the test of “appropriateness” will be for the expression of a view on release by the Secretary of State prior to a parole hearing 
• In how many cases the Secretary of State anticipates that test of appropriateness will be met 
• Why, in the remaining cases, the Secretary of State would choose to reserve their view until after the Parole Board has reached a conclusion, and what the implications of that delay might be for the prisoner’s ability to present their case in full knowledge of the Secretary of State’s concerns 
• Whether the expression of a single view on suitability for open conditions will also be subject to a similar test or will, as the absence of a reference to it in the amendment rules implies, be supplied in all cases. 

These are all wholly predictable questions and the people who are currently struggling to understand the practical implications of this chaotic series of announcements will no doubt have many more. I cannot over-emphasise the urgency of answering them, including the questions in my previous letter of 16 June. Creating this confusion for prisoners and families is both unfair and dangerous. Moreover, it puts the people whose job it is to motivate prisoners to progress in an impossible position, undermining the relationships of trust and confidence on which the system depends. Please give these matters the urgent and detailed attention they deserve. 

Yours sincerely, 

Peter Dawson 

Director Prison Reform Trust