Lets Re-invent the Wheel

“what about this wheel thingy? It sounds a terribly interesting project.” “Ah,” said the marketing girl, “well, we’re having a little difficulty there.” “Difficulty?” exclaimed Ford. “Difficulty? What do you mean, difficulty? It’s the single simplest machine in the entire Universe!” The marketing girl soured him with a look “All right, Mr. Wiseguy,” she said, “you’re so clever, you tell us what colour it should be.”

Douglas Adams, The Restaurant at the End of the Universe

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Right from the beginning of this endeavour I have written extensively on the importance of the PSR, 

The end of the PSR is Nigh

Death of the PSR

Folly of PSR Demise

When Is a PSR Not a PSR?

March of the FDR

Would You Adam and Eve It!

PSR Special

PSR At Last Lamented

MoJ Admits PSR Problem

but it seems as if those clever people in charge at the MoJ seem to take ages to join up the dots:- 

The impact of oral and fast delivery pre-sentence reports (PSRs) on the completion of court orders

1.1 Background 

A pre-sentence report is advice given to the court following the facts of the case, expert risks and needs assessments, including an independent sentencing proposal and additional relevant information. They must be as objective as possible and exist to assist the judiciary with sentencing. 

The number of pre-sentence reports written in England and Wales has decreased in recent years – from 211,494 in 2010 to 103,004 in 2019.This was an area of concern in the 2020 white paper, A Smarter Approach to Sentencing, which stated that “The purpose of a pre-sentence report (PSR) is to facilitate the administration of justice, and to reduce an offender’s likelihood of reoffending and to protect the public and/or victim(s) from further harm. A PSR does this by assisting the court to determine the most suitable method of sentencing an offender (Criminal Justice Act 2003, section 158)”. 

The paper proposed that “further work is undertaken to build the evidence base on the impact that a PSR has […] on offender outcomes, sentencing behaviour and the efficient administration of justice”. Following this, a PSR pilot began in March 2021. Separately, this report examines the impact of a PSR oral or fast delivery report on the reason that a court order (or sentence) terminated. This analysis specifically looks at adults sentenced to a Community Order or Suspended Sentence Order (with requirements) in England and Wales in 2016. 

1.2 Key findings 

The overall results show statistically significant evidence that those who received a PSR oral or PSR fast delivery in 2016 were more likely to successfully complete their court order, compared with a group of similar offenders who did not receive a PSR. In particular: 

• 80% of those who received a PSR fast delivery in 2016 successfully completed their court order. This is higher than for similar offenders who did not receive any type of PSR (73%). 

• 73% of those who received a PSR oral in 2016 successfully completed their court order. 

This is higher than for similar offenders who did not receive any type of PSR (68%). These impacts on completion of court orders are based on estimates of what would happen if instead of receiving a PSR oral or fast delivery, the case had not received a PSR. This analysis includes PSRs prepared for both magistrate and crown courts. 

The results of this analysis should not be directly compared to termination outcomes in other analyses or to figures such as national averages due to the use of a time-bounded sample, and the propensity score matching (PSM) technique used to ensure otherwise dissimilar groups were comparable. In addition, the results for PSR fast delivery and PSR orals should not be directly compared. 

The results of this analysis should not be regarded as definitive; it is intended to provide initial evidence of the impact of PSRs and so only looks at the reason that a court order terminates as an outcome. The limitations of this study are discussed in section 5.1 alongside suggestions for areas that could be valuable to explore in greater depth. However, these findings increase the evidence on the effectiveness of PSRs and therefore it can be recommended that oral and fast delivery reports are requested and delivered to increase successful termination of court orders.

4. Results 

The analysis found statistically significant evidence that an offender sentenced in 2016 that received a PSR fast delivery or PSR oral was more likely to successfully complete their court order and less likely to terminate early for failure to comply with requirements or conviction between 2016-2019, compared with a group of similar offenders which did not receive a PSR – see the main results in Appendix E. 

4.1 PSR Fast Delivery 

• ~80% of those who received a PSR fast delivery in 2016 successfully completed their court order. This is significantly higher than the comparison group (7 percentage points higher) which comprised similar offenders to those who received a PSR fast delivery but did not receive a PSR. 

• ~11% of those who received a PSR fast delivery in 2016 terminated their court order early for conviction of a further offence. This is significantly lower than the comparison group (4 percentage points lower) which comprised similar offenders to those who received a PSR fast delivery but did not receive a PSR. 

• ~9% of those who received a PSR fast delivery in 2016 terminated their court order early for failure to comply with requirements. This is significantly lower than the comparison group (3 percentage points lower) which comprised similar offenders to those who received a PSR fast delivery but did not receive a PSR. 

4.2 PSR Oral 

• ~73% of those who received an oral PSR in 2016 successfully completed their court order. This is significantly higher than the comparison group (5 percentage points higher) which comprised similar offenders who did not received a PSR. 

• ~15% of those who received an oral PSR in 2016 terminated their court order early for conviction of a further offence. This is significantly lower than the comparison group (2 percentage points lower) which comprised similar offenders to those who received a PSR oral but did not receive a PSR. 

• ~13% of those who received an oral PSR in 2016 terminated their court order early for failure to comply with requirements. This is significantly lower than the comparison group (2 percentage points lower) which comprised similar offenders to those who received an oral PSR but did not receive a PSR. 

Please note the analysis of PSR oral and PSR fast delivery should not be directly compared as the matched comparison groups contain different offenders with different characteristics. Therefore, it cannot be concluded that fast delivery reports were 7% more likely to terminate successfully than oral reports, although the relative efficacy of fast delivery and oral PSRs is of interest. 

5. Discussion 

These findings demonstrate that the requesting of a PSR oral or PSR fast delivery is related to the successful completion of a court order, and therefore it is recommended that these reports are requested and delivered. 

Additionally, these findings support the wider work across the MoJ to increase the instances of advice being given to court in the form of a PSR. 

This study does not consider the influence of a PSR report on the sentence handed down. As PSRs typically propose a sentence, the extent to which, if at all, the advice of the PSR is implemented and further work to explore whether these findings are impacted by the PSR advice being followed would be useful. 

While in Section 3.3 Assumptions, it was considered that further data linking (e.g. to extracts from OASys and the PNC14) might reduce sample size and bias the dataset towards more complex cases, this assumption could be tested. Making further “presentencing” variables available for review/matching would enable the goodness of match between the treatment and control groups to be verified or improved, and facilitate further analysis of the relationship between sentence completion and sentence characteristics, and the impact of a PSR on these characteristics. 

Additionally, whilst the groups receiving PSR oral and PSR fast were different in some ways, in other characteristics, such as gender, they were similarly distributed. It would be useful to consider whether the PSR report has the same statistical significance across all different groups. 

Research on the quality of a pre-sentence report was undertaken in 2020, which questioned whether PSRs provided sufficiently analytical and personalised (to the service user) advice, in order to aid with the court’s decision making (HM Inspectorate of Probation, 2020). The report considered “standard” (these can take up to 15 working days to complete, and are used for serious cases involving high complexity or serious sexual or violent crime), “short format” (fast delivery) and oral reports, and found that 97% of standard delivery reports, 82% of the short format, and 65% of the oral reports were sufficiently analytical and personalised to the service user (although it is noted that only 30 (4%) of the reports available were standard delivery reports; 535 (67%) were oral and 237 (30%) were short format). This report was broadly supportive of the HMPPS reforms promoting the use of PSRs, and indicated that fast delivery PSRs might offer a necessary increase in analytical depth relative to oral PSRs. However, as noted before, the dataset used in this study contains no information on the quality of each report, and the oral and fast delivery cohorts considered by this study are not directly comparable. This suggestion would therefore require further investigation, e.g. by matching cohorts between PSR types. 

This study considers only the reason for court order termination. While the successful completion of a court order is desirable and indicates no reoffending during the period of the sentence, it is not a direct proxy for reoffending (arguably the most desirable outcome) or for other outcomes that might be considered markers of “success”. The evidence base for PSR reports would be augmented by investigation into the relationship between a case that receives a PSR in court and further outcomes related to the offender, for example whether they attended their initial meeting with a probation officer, reoffended (following the expiry of the court order), had suitable accommodation or employment post-sentence.

Risk Assessments Inaccurate and Incomplete

I notice HMI Justin Russell has published an alarming report highlighting serious failings in a key part of the work of Probation. This from the press release:-

Serious Further Offences (SFO) Annual report – assessments of risk of harm remain inaccurate and incomplete

HM Inspectorate of Probation has published its second annual report of Serious Further Offence (SFO) reviews, finding that assessments of the risk of harm people on probation pose remain inaccurate and incomplete – not enough is being done to stop them reoffending and SFO reviews remain below the expected standard.

Serious Further Offences (SFOs) are specific violent and sexual offences like murder, manslaughter and rape committed by people who are, or were recently, under probation supervision. Over 500 SFOs are notified to HMPPS every year and for the victims and families affected the impact and consequences cannot be underestimated.

The vast majority of SFO reviews are conducted by HM Prison and Probation Service (HMPPS) itself. The Inspectorate is occasionally requested, by the Secretary of State for Justice, to conduct an independent SFO review, and has this year published reports into the review of the case of Damien Bendall and the review of the case of Jordan McSweeney.

For this annual report, we looked at 20 per cent (86 cases) of the SFO reviews conducted by local probation regions between April 2022 and April 2023 – 30 of these involved a serious further offence of murder, and 20 of rape. In comparison to last year’s findings, it was concerning to see that we have seen the percentage of reviews we rated as of either ‘Good’ or ‘Outstanding’ quality reduced from 69 to 52 per cent.

Chief Inspector of Probation Justin Russell said: “It is disappointing to see the quality of satisfactory reviews of serious further offences conducted by the Probation Service reduce by nearly 20 per cent. It is clear, both from the SFO cases we have looked at and our own independent SFO reviews, that the Probation Service must strive to do a better job of consistently and accurately identifying the minority of people on probation at risk of causing serious harm. And learning the lessons from these very concerning incidents.

“This will involve using all available information, to properly assess and monitor risk, with public protection at the forefront of planning and decision making. I hope that our recommendations, and those from our recent independent SFO reviews, will mean improvements that future lead to high-quality probation services that can safeguard potential victims and keep people safe.”

Of the cases covered by the 86 SFO reviews we analysed, we found:

• 44 per cent of the risk of harm assessments were inaccurate or incomplete
• 42 per cent of the offences were committed by a person on probation who had been assessed as posing only a medium risk of serious harm before the offence happened. 44 per cent were committed by an individual assessed as posing a high risk of serious harm (this is up from 33 per cent last year)
• 42 per cent were managed under Multi-Agency Public Protection Arrangements (MAPPA).

Mr Russell continued: “It is very concerning that assessments for the risk of harm a person on probation may pose remain inaccurate, incorrect, or incomplete. It is clear that reduced staffing levels within local services continue to have an impact on the quality of work we are seeing, both in these serious further offence reviews and the findings from our local inspections. Once again, I call on HMPPS to ensure services have the staff they need in order to manage every person on probation actively and effectively to monitor any risk of reoffending.”

This annual report makes a number of recommendations for improving the quality of SFO reviews, including revising the operating model used to produce them and maximising the way that learning is shared.

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From the Report :-

Chief Inspectors Overview

Each year His Majesty’s Prison and Probation Service (HMPPS) is notified of around 500 Serious Further Offences (SFOs) like murder, manslaughter and rape which are alleged to have been committed by people who are under Probation Service supervision. Following each of these incidents, the Probation Service undertakes what is called a Serious Further Offence review. In 2020, the Secretary of State for Justice asked us to start to independently quality assure a sample of these reviews. We began this role in April 2021, and this is our second annual report into this activity. 

Between April 2022 and April 2023, we quality assured a total of 86 reviews – approximately 20 per cent of the total produced by the Probation Service over this period. Concerningly, we have seen the percentage of reviews we rated either ‘Good’ or ‘Outstanding’ reducing from 69 to 52 per cent compared with the previous year’s findings. I was also concerned to see an increase in the proportion of reviews that relate to people on probation who had previously been assessed as high risk and who therefore should have been subject to the highest and most robust standard of supervision by the service. 

More needs to be done to improve the quality of SFO reviews and the work that the service does to assess and manage the risk of serious harm to the public from people on probation. The Probation Service needs to ensure that it produces high quality SFO reviews that identify all available learning and support practitioners to improve the way they manage risk of serious harm. Our quality assurance work is demonstrating that this is not being done consistently, with notable regional differences in the quality of the SFO reviews being produced. 

Last year, I raised concerns about the grade and independence of those undertaking SFO reviews, given that these reviews are carried out by middle managers from within the region in which the SFO itself occurred. Given the results of our quality assurance of reviews over the past year, my concerns have, if anything, increased and I would recommend that HMPPS give serious consideration to ensuring that reviews, certainly those involving the most serious incidents, are conducted by more senior staff from a different region to that in which the offence occurred. 

Earlier this year we also published two independent reviews into the cases of Damien Bendall and Jordan McSweeney. Both identified serious concerns in relation to risk assessment, workload, management oversight, professional curiosity, case allocation and case management. These findings mirror the concerns identified within the broader range of SFO reviews we quality assure and those of our local probation inspections. 

Positively, HMPPS accepted each of the 27 recommendations that we made in the Bendall and McSweeney reviews, many of which centre on needing to improve the assessment and management of the risks of serious harm. I hope that the recommendations in this annual report, and those from our independent reviews, will result in the urgently needed improvements that can lead to high-quality services that safeguard potential victims and keep people safe. 

Justin Russell 

HM Chief Inspector of Probation

Conclusion 

This report has highlighted a decline in the overall standard of the SFO reviews quality assured this year, with the numbers rated as ‘Outstanding’ or ‘Good’ reducing from 69 per cent to 52 per cent. 

We emphasised in last year's annual report that more work was needed to improve the overall quality of SFO reviews, therefore this year’s findings place an even greater emphasis on this.

 SFO reviewers are not sufficiently considering practice at all levels, and this failure to consider whether systemic or procedural factors underpin poor practice is also impacting on how well all learning opportunities are identified. There has been a notable decline in the quality of both the learning and victim elements of SFO reviews, both of which are key factors in meeting the overall aim of these reviews. 

We published two independent reviews this year, which made a total of 27 recommendations to support HMPPS in making critical changes and improving how people on probation are managed in the community. Each of these recommendations has been accepted by HMPPS.

Recurring practice deficits are being identified through the SFO process, many of which also correlate with the findings of the local inspections and those from the two independent reviews we published. This raises further concerns that SFO reviews are not fulfilling their aim or potential in driving forward change and preventing practice deficits from reoccurring. 

Our work over the forthcoming year aims to support HMPPS in driving improvements in the quality of SFOs reviews, as well as monitoring how well the action plans are implemented and effect change. It is imperative that SFO reviews meet the expected standard so that victims and their families have a transparent overview of the practice in the case and relevant learning can be taken forward effectively and drive change. 

We make the following recommendations to HMPPS to improve to the quality of SFO reviews:

1. promptly review the SFO review document format to maximise the opportunity to produce high quality and informative SFO reviews that meet the needs of victims and their families 

2. ensure that the learning identified is translated into meaningful and impactful actions 

3. ensure that where applicable, all learning linked to the Probation partnership working is identified and shared with the relevant agencies 

4. develop a process to ensure that learning from SFO reviews is fed back into the organisation to inform and shape developments within probation regions and more widely across HMPPS 

5. ensure that robust and rigorous countersigning takes place on all SFO reviews before they are submitted for quality assurance 

6. put robust processes in place to ensure that, following quality assurance feedback, all required changes to the SFO review document are made timely and to a sufficient standard. 

7. SFO reviews, particularly those of the most serious offences, should where possible be undertaken by a separate probation region to that responsible for supervising the case at the time of the SFO. And consideration should be given to raising the grade of SFO reviewers, particularly for the most serious or complex cases.

Prison News

I note the Prison Governors' Association are once again saying our prisons are close to being full, but are almost invariably ignored, despite being correct. The story was covered on Ch4 news extensively last week and reported here on 5th June in InsideTime:-

Prisons will be full by July, governors warn

The head of the Prison Governors’ Association (PGA) has warned that jails will be full by next month – and threatened legal action if the Government tries to squeeze any more prisoners in.

Andrea Albutt said that a rigorous exercise was carried out last year to determine the maximum number who could be held safely at each prison. She said that the PGA, alongside other trade unions, was confident of mounting a successful challenge in the courts if ministers attempt to exceed this capacity.

Instead, she urged the Government to introduce an early release scheme to keep prisoner numbers within the current limit. Ministers have tried this once already this year, when they extended the time prisoners can spend on home detention curfew from four-and-a-half months to six.

Albutt will stand down later this year after eight years as president of the PGA. Delivering a speech at Westminster to MPs and peers on the All-Party Parliamentary Group for Penal Affairs, she said: “We have a perfect storm situation at present. Our prisons are full and the prison building programme cannot keep pace with the increase in the prison population.” She added: “There is no more room at the inn.”

In 2021, during the Covid pandemic, there were just under 78,000 prisoners in England and Wales. By the start of 2023 this had risen to 82,200. After 20 successive weeks of increasing numbers, there are now 85,400 prisoners – just 800 short of the nationwide “usable operational capacity”.

Albutt pointed to policies introduced by successive Conservative justice secretaries which had added to prisoner numbers, including lengthening the portion of sentences which must be spent in custody. She said: “For several years, the PGA has voiced concern over the government’s tough-on-crime agenda and the impact on an already-stretched system, which has suffered from lack of investment for well over a decade. Many of our prisons are not providing a safe, decent and rehabilitative environment.”

In a damning assessment of how the Conservatives have managed prisons since they came to power in 2010, she said that jails had been treated as a “political football”, subject to “short termism, party politics, constant changing secretaries of state and personal ministerial priorities”. She said the past 13 years had left “a legacy of dire consequences for all who live and work in prisons”.

She singled out Chris Grayling’s time as justice secretary from 2012 to 2015, during which staff numbers and maintenance budgets were cut, the probation service was part-privatised and facilities management was contracted out. She said that as a result, violence and self-harm increased while “the crumbling estate became so dilapidated that large parts of it were unfit for human habitation but remained in use”. She added: “To this day we have not recovered from this catastrophic reduction in funding.”

Measures currently being taken by the Government to try to head off the capacity crisis in prisons include “Operation Safeguard”, in which 400 police cells have been earmarked to hold prisoners when nearby jails are full, and Rapid Deployment Cells, portable buildings which are being installed in the grounds of some jails.

In her speech, Albutt also criticised the Government’s decision in 2021 not to give prisoners and prison staff priority for Covid vaccination, despite recommendations from public health experts. She labelled it “sinful” and said: “This decision was based on what public opinion would think as opposed to what was the right thing to do to stop the spread of the virus within prisons and out into the wider community.”

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I thought this was interesting from 25th May and 'A Lawyer Writes' :-

Give up prisons, top judge tells minister

An ‘obvious potential conflict of interest’ for the Ministry of Justice

The most senior judge in England and Wales has suggested that the Ministry of Justice should no longer be responsible for running prisons. The department took on prisons and probation when it was created in 2007. Before that, the lord chancellor briefly headed a Department for Constitutional Affairs. Prisons had been run by the Home Office since 1823.

Lord Burnett of Maldon made his suggestion in a speech of welcome to the new justice secretary and lord chancellor, Alex Chalk KC MP, who took his oath of office yesterday at a ceremony in the lord chief justice’s court.

The lord chief justice told Chalk:

The functions of lord chancellor in a modern age might be thought enough to keep a minister fully occupied. The original concept of a Department for Constitutional Affairs did just that. But then along came prisons, bringing with it an obvious potential conflict of interest and problems themselves enough to consume the energies of a superhuman. That marriage may not have been made in heaven.

When political breathing space allows, the time may well have come for the role of lord chancellor to be looked at again. The question is whether the current arrangements appropriately serve the administration of justice, which is one of the building blocks of society…

Should a calm debate about the role of lord chancellor ever be held, I would be happy to contribute from the equivalent of the judicial back benches.

Burnett did not say whether he thought prisons should revert to the Home Office or go to a new department. The allocation of government business between ministries is a matter for the prime minister of the day.

It is unusual for the chief justice call for changes in the machinery of justice but Burnett has little more than two months left to serve before he retires from the judiciary and he appears to be seizing his opportunities.

Without referring explicitly to the “enemies of the people” headline, Burnett also gave Chalk a firm lesson on what was expected of him:

Despite the profound legislative changes to the role, the lord chancellor remains the constitutional lynchpin between executive and judiciary. It is the lord chancellor who is charged particularly with defending the independence of the judiciary and who solemnly undertakes to do so in the oath of office.

That entails a duty to engage publicly on behalf of the judiciary in the rare circumstances when public attacks are launched upon the judiciary as a whole or upon individual judges. It calls for lord chancellors to bring to the cabinet table not only their political experience and judgment as secretary of state for justice but also, as lord chancellor, their enhanced duty with respect to the rule of law and judicial independence.

And there were some good jokes. I had predicted that Burnett would say that Chalk was the sixth lord chancellor he had worked with in less than six years.

The chief justice went one better:

My lord chancellor, you are my seventh in just under six years, albeit one twice. You, I hope, are my last. Otherwise I would find myself, somewhat surprisingly, with something in common with Elizabeth Taylor. She has eight husbands — one twice.

But two can play at that game. “Between 1678 and 1689,” said Chalk, “there were seven lord chief justices. So we all have our rough patches.”

He admitted that his own predecessors had included some “absolute howlers” but the only example he named was Richard Rich (1496-1567).

The one discordant note in a confident speech was a list of the government’s legislative objectives — although Chalk is not the first lord chancellor to have injected a political note into the ceremony. It also gave him an opportunity to commit himself to due process and the rule of law.

This was the passage in question:

We will play our part in operationalising any immigration legislation that parliament is minded to enact. We will do so whilst being careful to provide individuals with the due process which is the hallmark of our legal system. The rule of law requires that illegality has consequences, but it also requires that individuals have the proper opportunity to make representations in their own cause.

It struck me that at least one of his cabinet colleagues would not have put it in quite the same way.

Joshua Rozenberg