What About Probation John?

It looks like the Prison Reform Trust is on a roll at the moment and recently managed to bag a former prime minister to publicly admit their part in the parlous state we now find the Criminal Justice System in:- 

The former Prime Minister, Sir John Major delivered a speech at the Old Bailey on 9 May 2023, in which he set out his case for penal reform. Sir John acknowledged that the problems now being faced within the penal system have intensified over many governments, and that he, his predecessors and his successors should all share responsibility for this.

“We over-use prison and under value alternative sentences”

It’s a great privilege to be here this evening – and in such historic surroundings.

I’d like to thank Alistair King for making it possible – and Edward Garnier for encouraging me to enlarge publicly upon what I have said privately. Edward – apart from his legal and political career – is a Trustee of the Prison Reform Trust, now Chaired by James Timpson, whose actions match his family’s long concern for prisoner welfare. The Trust itself, until recently under the guidance of Peter Dawson and now, Pia Sinha has worked for reform with the same persistence as those early campaigners – John Howard and Elizabeth Fry.

I would like this evening, to add a few thoughts of my own. One of the virtues of age is having the time to reflect on what you have left undone with – no doubt – some regrets along the way. It is such reflections that have brought us together this evening. I am conscious that, where I criticise, many of the problems are long standing and I, together with predecessors and successors, must each take our share of the blame.

Let me begin with some reassuring news. Violent crime has been falling for nearly 30 years – although the extent of public interest when some horrific crime occurs makes this a deeply held secret for many people. Despite this long downward trend, legislators have been far more active in framing policy to punish crime than in action to minimise the cause of it.

Many citizens who have faced ‒ or fear facing ‒ serious or violent crime strongly approve. They are clear that they ‒ and their families ‒ are safer if criminals are taken out of society. And, in one sense, they are entirely right. And yet this instinctive ‒ very human ‒ response ignores the obverse of punishment, which must be rehabilitation.

Stern sentences for violent crimes are necessary, and the instinct to protect the public is laudable ‒ but we should beware that excessive zeal to be tough on crime does not lead us into unwise policy.

We are told “prison works” and – to the extent it holds the worst of criminals in custody, it does – but I do not believe our justice system is well served if it also imprisons those who could better be punished by non-custodial sentences. Even to use the word “rehabilitation” is taken by many as code for being “soft” on crime; for being gullible; a “do-gooder” who cares more for the villain than the victim. I certainly do not intend it in that sense. Indeed – as I shall argue shortly – I believe such an interpretation ignores the public interest.

When society sends people to prison we are, in reality, “shutting the door after the horse has bolted”: the crime has been committed. Retribution follows: but, upon release, it is surely in the wider interest of everyone that the crime is never repeated. That is the purpose of rehabilitation ‒ together with turning around the life of the released prisoner.

If we wish to live under a penal code of which we can be proud, then we must not only punish, but act to reform and re-educate offenders. I don’t claim that is easy. But I do say that it is sound policy to reduce the risk of re-offending upon release.

We send people to prison ‒ most of them, deservedly, but some not. Either which way, to prison they go. And, to many, that is the end of the matter. Justice is done and the victim has closure. But ‒ future victims do not have closure if the prisoner re-offends. Prison is at its best when it rehabilitates, and, at its worst if – instead of providing a route out of crime, it provides an education into it.

PRISONERS/EDUCATION

It is instructive to consider the overwhelming characteristics of adults committed to prison:

• nearly two-thirds of them have used Class A drugs;
• many are illiterate, or innumerate, or both;
• almost half have no educational or vocational qualifications whatsoever;
• the intellectual assessment of many prisoners equates to that of a primary school pupil.

Two-fifths of those in prison were either expelled or excluded from school; three fifths were frequent truants; many were taken into care as a child; or observed violence in the home; or suffered abuse; sometimes even all of the above. All of this is a truly wretched preparation for adult life. We cannot be ignorant of the fact that failures in the early years of life are a serious driver towards crime, and anti-social behaviour.

There is education and training in prison, but its availability ‒ and value ‒ is mixed. After the (Sally) Coates review in 2016 improvements were expected. Yet, seven years on they have not materialised. There are reasons. Poor education contracts; lack of funding; unsavoury prison conditions; and – of course – the impact of Covid, have all stood in the way. As has over-crowding, and the resultant churn of prisoners being moved from prison to prison. If we wish to attack the causes of crime, better education – in and out of prison – is an essential component.

PRISON POPULATION

Forty years ago, when Willie Whitelaw was Home Secretary, I was a humble Parliament Private Secretary to the two Ministers of State, Tim Renton and Patrick Mayhew. They were shocked ‒ Willie was apoplectic actually ‒ when the prison population reached 40,000. Today, it is more than double that.

A range of reasons contribute:

• our national population has grown;
• indeterminate sentences boosted prisoner numbers;
• as has legislation increasing terms of imprisonment for many crimes; and
• a greater range of misdemeanours may lead to prison.

Comparisons with overseas do not reflect well on our penal policy. The UK has the highest imprisonment rates in Western Europe ‒ and yet I find it hard to believe we British are uniquely criminal. So ‒ were our predecessors unduly lenient in sentencing ‒ or are we unduly harsh?

And why ‒ since our prisons are heavily over-crowded ‒ have suspended sentences been declining? In the year to June 2022, 43,000 people were sentenced to a term in prison. Of these, less than two in every five had committed a violent offence. Was prison the correct (or fair) sentence for all the 26,000 non-violent offenders? Some, perhaps … but all? I am not sure that it was.

The punishment of prison is to lose liberty, but the prisoner may lose much else besides: their job, their home, their relationships. That is a high cost ‒ not only for the prisoner, but for society as a whole. The full costs may not be justified. We might be wise to be more selective.

When prisoners have served their punishment we don’t wish them to be so alienated that ‒ through spleen or necessity ‒ they return to crime. That is in no one’s interest ‒ and especially not the public at large. Many prisoners ‒ far too many, I believe ‒ are sentenced to short-term imprisonment when other sentences would be preferable. In some cases, care and medical attention are called for rather than prison.

Should the mentally ill be imprisoned, or should they be treated in secure wings of mental hospitals? Surely the latter. More radically, should non-violent mentally ill prisoners even be the responsibility of the justice department: would not the Department of Health be more appropriate? I appreciate such a move would not be welcomed by the Health Department, but the Government’s responsibility is to provide the most effective and humane punishment.

Imprisoning people who may be incapable of self-control is simply wrong. They require care, not incarceration. Of course, mentally ill prisoners who are dangerous or violent must be held securely to protect the public, but they, too, require care as well as custody.

Moreover, should low-level drug offenders ‒ street dealers for example ‒ who are highly likely to be of limited intelligence as well as being addicts themselves – be sentenced to prison, or given an appropriate community sentence? To be blunt ‒ my suspicion is that many short sentences are pointless and that a non-custodial sentence would be more effective and, perhaps, more fair.

WOMEN

There are over 3,300 women in prison in England and Wales. More than half will serve less than six months. No doubt some are irredeemable, but I suspect most are not. Over two-thirds of women sent to prison have committed a non-violent crime: at present more are imprisoned for theft alone than for criminal damage, arson, drug offences, possession of weapons, robbery or sexual offences.

I do question whether prison for many of these women does not cause more problems than it solves. Some have mental problems, or histories of trauma or abuse. Some 50 babies a year are born to women in prison, and reports suggest women in prison are seven times more likely to suffer still birth. That statistic alone should make us question present policy: whatever the mother may have done, the baby is innocent.

I accept – male or female – we are all equal under the Law, but common sense and practicality suggests we should look very carefully at community sentence alternatives, before sending vulnerable women offenders to prison.

THE PRISON ESTATE

Reports by HM Inspectors on the state of our prisons do not make for happy reading. Time after time, the conditions of prisons are found to be unsatisfactory. In some they are intolerable. Many of the old Victorian prisons ‒ Wandsworth, Pentonville, Norwich, among others ‒ were built to hold one prisoner per cell. 150 years later, these cells may hold two – or even three – prisoners, sleeping on bunk beds and essentially ‒ forgive my putting it this way – living in a lavatory. To have inmates held in worse conditions than in Victorian times is an indictment of policy that is hard to ignore.

Last year, 301 prisoners died in custody ‒ 74 of them by their own hand. This rate of suicide is six times higher than among the general population. Many suicides are within the early days of custody. It is hard to escape the conclusion that the sheer shock of imprisonment ‒ which, I reiterate, may be for a non-violent crime ‒ is a principal cause of the desperation that leads to self-destruction.

Self-harm in prison has risen by two and a half times over the last decade ‒ most notably by women, but there is also a significant rise in the incidence of male self-harming. I would like to know ‒ why? I would suggest that prisoners who kill or maim themselves are people in despair – not hardened villains.

Of course, the Government knows all this. In 2015, the Government announced a new prison reform programme to build nine new prisons – and committed £1.3 billion to create 10,000 new prison places by 2020. This well-meaning plan ‒ let me put it kindly ‒ faltered. The Public Accounts Committee reported that, despite these pledges, only 206 new places were delivered with 3,500 places still underway.

Meanwhile, prisoners continued to be held in unsafe and over-crowded conditions. A revised plan followed in 2019 ‒ also to create a further 10,000 places. This was updated in 2020 when £4 billion was allocated to deliver a total of not 10,000 but 18,000 places ‒ in England and Wales – by the middle of this decade. 

The plans included the expansion of four prisons; the completion of building at two more; and refurbishment of the Prison Estate. Last month, a Parliamentary Question revealed that only 3,100 of that 18,000 target had yet been provided, and only one new prison had been opened in Wellingborough – although I believe a second, Fosse Way, is due to open this year. Progress? Yes. But 2025 is only two years away, and there is still a very long way to go to turn what was promised into reality.

Prison staffing is an allied and deep-rooted problem. The turnover of staff is a ruinous 15% a year – which delivers its own message about the job’s lack of appeal, and the toll it must take. Despite efforts to attract people to become prison officers, there are over 700 fewer officers than there were 12 months ago, and front line staff are 11% below the staffing level of 2010. This does not suggest a modern prison service is anywhere near delivery.

REMAND

It is said that “Justice delayed is Justice denied”. And yet, the congestion in our Courts does delay justice. Consider the remand system. Remand may be used for accused people before their trial, or those convicted and awaiting a formal sentence for their offence. Within that bland reality lie many complexities, and some injustices.

At present ‒ partly as a result of Covid delays ‒ the number of people on remand is at its highest level for decades: around 14,500. Typically, two-thirds are awaiting trial, while the remainder are awaiting sentence after conviction. Of those awaiting trial, one in two are subsequently imprisoned – even though accused of non-violent offences. Although individual circumstances will differ, I do not believe the case can be made that they should all be jailed.

My belief is reinforced when I learn that – at their trials – one in ten remand prisoners are judged to be innocent of any crime, and a yet higher number are convicted – but sentenced only to a non-custodial sentence. The need for reform seems evident.

Other factors reinforce that judgement. Nearly one-third of remand prisoners are held longer than six months before trial, and an unlucky 5% for over two years. That is over 700 remand prisoners held for over two years, before quite possibly being found to be innocent. They not only lose their liberty but their reputation and their income too, which may well also punish their families. This cannot be acceptable. Nor is it the fact that, last year over one-third of suicides in custody were by people on remand. I do not think we can be proud of that.

PAROLE BOARD

Parole for prisoners found guilty of serious and violent crimes is inevitably contentious. In practice, the Parole Board deals only with a minority of prisoners ‒ less than 10% ‒ and decisions “for” or “against” their release or transfer to an “open” prison can be complex and controversial.

Thirty years ago, a House of Commons Select Committee advised that “release should be an entirely judicial decision ‒ independent of the Executive”. Although this was initially resisted, Parliament did subsequently accept that principle and ‒ in my view ‒ rightly so.

Prisoners also gained the right to present their case for parole to the Board. This ended years of parole decisions taken in secret as a result of evidence that was never challenged. That was an approach which honoured neither democracy nor equity, and was a blot on our system. The present more open system does ensure that decisions are taken after a proper presentation of arguments. This seems to have been effective.

One quarter of those considered for release by the Parole Board were successful. Of those, only 1 in every 200 prisoners released re-offended within the next three years. This would suggest that the Parole Board is not a bunch of gullible “softies”.

Over the years, the Parole Board has evolved from its modest beginnings in the 1960s: with only a handful of Board members, no hearings to consider evidence, and with the final decision being taken by the Home Secretary. Today, the Board ‒ nominally at least ‒ is independent of Government, and has amassed years of experience and expertise, enabling a level playing field for decisions upon release, without the hype and pressure that would be bound to accompany political involvement.

In the thousands of decisions to be made each year, there is no way that Ministers could possibly match the experience and knowledge of the 350 Parole Board Members. It is therefore surprising ‒ and worrying ‒ that, over the last year, recommendations by the Parole Board to transfer prisoners to an “open” prison have suddenly, and sharply, been rejected by the Justice Secretary.

In 2021-22 – 94% of the Parole Board recommendations were accepted but, thereafter, that fell to 11%. It is hard to believe that does not result from an unannounced change of policy that is instituting a harsher regime.

VICTIMS AND PRISONERS’ BILL

The victims of crime have long needed more support than they receive, and there are elements of the proposed Victims and Prisoners’ Bill that are eminently sensible – and long overdue. As I understand it, the Bill was originally intended to cover the interest of victims only, and the prisoners’ element is a late addition. I believe this addition is a political misjudgement that may put much needed reforms at risk, and will come to that in a moment.

I welcome the proposal to enshrine the Victims’ Code in Law, which should ensure that greater support is delivered. But, if theory is to become reality, funding will be needed for specialist support and, thus far, there is no evidence that this will be provided. I can only hope the Justice Secretary has secured agreement for funding from the Treasury, or the Bill will fail to meet its purpose.

I understand that the former Justice Secretary sought the power to veto decisions made by what is allegedly the independent Parole Board, to release prisoners convicted of serious crimes. The problem with this is that I do not see how (or why) the Justice Secretary would be able to reach a more just decision than the Parole Board.

Any single Government Minister – however able or well-meaning – would be far more vulnerable to public campaigns and, under pressure, to make a harsher decision to appease them. This is a very slippery slope. I do not think that any politician should have that power, and I hope the new Justice Secretary will reconsider or – if he does not – that Parliament will deny it.

IPPs

There is one area of the penal code that is over-ripe for action to correct legitimate grievance. Until 2003, the only indeterminate sentence available to Judges was a life sentence, which was only for the gravest of offences. But, that year, the Government introduced a new concept: that of indeterminate imprisonment for public protection – so-called IPPs. It was intended for people considered “dangerous”, but whose offence did not justify a life sentence.

It passes a minimum tariff but offers no stated maximum. Release could only be authorised by the Parole Board. It seems that this scheme went wrong from the outset. It was applied far more widely than expected (or intended), with lower level offenders receiving this harsh sentence.

The number of IPP cases far outstripped expectations, and amendments to the legislation were approved by Parliament in 2008. But shortcomings remained, and the power to issue IPP sentences was abolished in 2012. But – and it is a BIG “but”: when it was abolished, no action was taken to determine a just ‒ and definitive ‒ sentence for the prisoners already serving for an indeterminate time. This was an extraordinary omission, which remains the case eleven years after abolition.

Nearly 3,000 offenders, still imprisoned – including those who have never been released and those recalled back to custody – were sentenced to a minimum term of imprisonment, but not a maximum. They are all serving sentences that have extended years beyond their minimum tariff and – without Ministerial action – may never end. This is soul destroying for prisoners and their families, and is emphatically not justice.

I believe that, without any further delay, justice should be served by Government agreement to the Justice Committee’s recommendation of a re-sentencing exercise – backed by the establishment of an expert committee to guide on the practicalities – for everyone still serving an IPP sentence.

* * * * *
I was brought up to believe that we, in Britain had one of – if not the – most just and civilised penal codes in the world. Some of what I have learned in preparing this speech has truly shaken that belief. People who commit crimes have deservedly forfeited much but ‒ in our country ‒ not, I hope, the right to be treated fairly.

There are many good causes that attract support, and hundreds of thousands of activists plead the case they most care about. But it is not so easy, or attractive, to plead for people who have committed crimes, and are responsible for their own misfortune. They do not so easily attract sympathy.

Nor, very often, is it politically comfortable for “active” politicians to plead for convicted criminals. In the rough and tumble of politics, compassion and consideration can too easily be derided as “soft” or “weak” – terms which can define as well as defame. It has ever been thus.

In many ways, it is odd to plead for a more empathetic penal code on the site of Newgate – one of the most notorious prisons in our long national history. But views evolve. In pre-Christian days, prisons were not a place of lengthy incarceration but merely of safe custody until a more savage sentence than loss of liberty could be carried out. Those days, thankfully, have gone.

In Saxon times, prison was occasionally used as a means of punishment and – by the 13th Century – to facilitate a sentence of life imprisonment imposed by the Church, which was unable to pass a harsher punishment. It was when offenders defaulted in payment of a forfeit to the Crown that prison became a convenient inducement to pay ‒ and then became of wider use as a punishment.

I have argued that its use needs to evolve further if it is to become a better instrument to deliver justice and reduce crime. So, let me summarise my concerns:

• We over-use prison and under value alternative sentences;
• too many vulnerable people ‒ including the mentally-ill – are jailed;
• education and rehabilitation in prison is inadequate;
• much of the Prison Estate is out of date and unsuitable;
• too many accused are remanded in prison pre-trial;
• the Justice Secretary should not remove powers from the Parole Board;
• IPP prisoners should be re-sentenced.

These practices, these problems have grown up over many governments. In my layman’s view, it is time they were addressed – and put right.

Sir John Major KG CH