Guest Blog 93

Process or Fairness?

After having sat for a year or so as a magistrate in the Adult court, I had my first courtroom experience sitting as a single justice in the Applications court. This unnerving introduction was in the courtroom set aside for such hearings and involved reading and signing myriad warrants including police search warrants, mental health detention and batches of Utility Company right of entry applications which recently have been subject to revised guidance. It was unclear to me if this court was open to the public or the press. But with the introduction of the Single Justice Procedure (SJP) in 2015 designed with admirable ambition to provide efficient and speedy summary for low order, non-imprisonable offences (mainly traffic) that the format and pace of justice moved up a gear!

My first introduction to SJP was quite an instructive one. Located in one of the back rooms at the court with two computer screens on adjoining tables feeding in the days listings of offences was the Legal Advisor. I was more than a little startled to discover that the applicable fines on a finding of proven, beyond reasonable doubt had already been filled in advance! The offences were mainly speeding and driving with No Insurance, with equivocal on line pleas set back for a trial date. As the listings numbered in the dozens, I felt under pressure to complete each case submitted in mitigation, often heart rending and at times near unreadable. It felt unsettling and unethical to my understanding of open and accountable justice. It was clear that the public/press were excluded from this procedure.

One of the more concerning aspects of the SJP process that I struggled with was defendants submitting incomplete information, (literacy and language barriers appeared prominent reasons for this) particularly on financial means. This set in motion an automatic default calculation of 'presumed income' of £440 which often meant with fines, costs and surcharge that sums of money of hundreds of pounds would be deducted on notification. I raised this concern during this period, but the pressures of time meant that further discussion was considered inappropriate.

Often pleas of mitigation seemed to be solidly grounded, that is to say domestic circumstances that might elicit a more favourable penalty in open court would not be fully explored in what was a often experienced as a hothouse sentencing environment.

The submissions to the SJP are premised on early guilty pleas, but where equivocal pleas were entered in my experience the matter was either put back or listed for the traffic court.

But the decision on guilt was that of the single magistrate, with the formulaic 'proven ' entered on the sentencing outcome notice. My expressed concern again was that the sheer weight of SJP cases often meant decision making was hurried and presumptive.

I seldom heard any murmurings of doubt on the SJP process from colleagues, other than the volume of cases dealt with and my reservations when shared on open justice appeared to be side-lined when SJP was considered low end offending that merited process over fairness to defendants.

The Magistrates Association did pick up, albeit late in the day, the disquiet over utility entry warrants and this acted as a catalyst for opening up the SJP to wider scrutiny and openness.

All magistrates on the Adult court rota (6 months timeline) were assigned SJP sittings. It was assumed at first that half day sittings would be sufficient to accommodate this. But once the stark reality of increased volume prosecutions kicked in, expanded to include matters such as TV licencing and with tentative plans to invoke motoring disqualifications (with rights of appeal) as integral to this, whole day sittings were included. SJP was favoured by some colleagues who appeared to revel in the intensity of such busy sittings. But many others (myself included) felt distinctly uncomfortable with this form of closed and opaque justice.

By 2020 the number of case heard via SJP had reached a staggering 535,000 according to the court service and any judicial murmurings of residual concern seemed to go unnoticed. I was often bemused by listening to some of my colleagues in the retiring room extol with almost fetishistic glee the number of such cases they had completed (processed!) in one sitting. I did flag up my misgivings on how this might square with open justice, in the sense that the financial and penal consequences of a criminal conviction were impacting unfairly on those with the least means. But such concerns seemed not to matter. I do not want to impugn the motives of colleagues, given the busy court that I sat in. But SJP seemed very much like a Cinderella feature, with an eager willingness by some to change their rota so that the enthusiasts had the choice to sit.

The House of Commons Justice Select Committee in its 2022 report supported moves to widen access to justice and the Magistrates Association have more recently sought to offer much needed solutions to the current impasse on open and accountable justice, especially around SJP. But it is significant that this move was as a result of some sterling investigative journalism, which meant this unjust gadfly in the magistrates courts now looks like it might be taken more seriously and who knows rectified?

A Former Magistrate

A View From Both Sides

Thanks go to the reader for pointing me in the direction of the latest edition of 'Magistrate' which contains an article by former probation officer Mike Guilfoyle.

The early days

A short time after qualifying as a social worker in 1990, I found myself employed as a probation officer with the Middlesex Probation Service. Part of my probationary training involved shadowing one of my more experienced colleagues in a busy North London magistrates’ court. He was called to another court in the course of his duties, and I recall feeling a cold chill at the unerring gaze of the stipendiary magistrate (now district judge) as one of the defendants appeared from custody, looking bedraggled and sounding argumentative, after a night spent in a police cell. He was one of the ‘regulars’ who appeared in the dock, a homeless man with a troubled history of alcohol dependency, who would smash a shop window and await arrest, to secure a warm overnight stay with the local constabulary. The ‘stipe’ impatiently asked if the probation service could ‘do something for this indigent alcoholic’ (words with a vaguely Dickensian overlay) as he needs to be offered ‘help and assistance’ as punishment clearly was not working! He was sentenced to a day in lieu, and I agreed to go into the cells before he left to interview him, with a view to offering such help and assistance as I could muster.

In the event, when I introduced myself as his ‘new probation officer’, anxiously hoping that he might respond to an approach aimed at his vulnerability, persistent offending and evident welfare need, he harrumphed, ‘I do not need any probation officer to tell me what to do’ and returned to the streets adjoining the probation office. He sadly passed away a while later having collapsed in those very same streets while intoxicated.

Around the same time, I was called upon to prepare a pre-sentence report on a female defendant who was remanded in custody and was facing sentence at the crown court. I was encouraged to attend the crown court in person to support my recommendation (as it was known at the time) for a three-year probation order, as my line manager had pointedly noted the welfare needs of the defendant outweighed other sentencing considerations. The crown court judge invited me to speak to my report at the sentencing hearing and politely but firmly questioned me on why he should follow my recommendation in light of the gravity of the offences.

He retired to consider the mitigation outlined in legal representations centred on the defendant’s abusive upbringing (the defendant’s counsel had gasped in disbelief when I handed him the report!) and my oral submission.

Passing sentence he noted ‘these offences are far too serious for a probation order’ (community orders had yet to appear on the judicial landscape) but he noted Mr Guilfoyle’s comments and had reduced the sentence of imprisonment from 10 to seven years! Imagine my later surprise, when a well-thumbed copy of the Justice of the Peace magazine, which was regular lunchtime reading in the probation office, alluded to this case, with the sentencing judge bemoaning my ‘unrealistic sentencing proposal’ and opining as to just how ‘out of touch’ the probation service was becoming (or was that just me?) in its report writing!

Political imperatives and organisational change

I cite these two examples of my own early probation practice simply as a way of briefly outlining how much then changed in subsequent years in the way that the probation service, and in particular its role in the court setting, reflected wider organisational and political imperatives. This included the first of many significant criminal justice acts in 1991 that buffeted the service in an attempt to ‘toughen up’ sentencing options; so that ‘if an offence was serious enough a community penalty may be imposed’, was now stacked with a portfolio of added requirements. The judicial maxim of ‘serious enough’ now entered the lexicon of report writers keen to ensure that the confidence of magistrates and judges, and indeed the wider public, was not jeopardised! Arrangements for sharing good probation practice with the judiciary often meant attending local magistrates’ liaison committee meetings. Although at times I picked up more than the odd jarringly dissonant viewpoint, with one notable meeting abruptly ending when the topic of disparities in custodial sentences between adjoining courts, also known as concordance rates, was gingerly raised!

With the creation of the National Probation Service in 2001, I had already moved to a central London probation office, and now found myself undertaking weekly court duties in two magistrates’ courts (both since closed). Amazingly, for a time, although stand down or oral reports had long continued to feature for those defendants appearing for minor offences but requiring some probation input (mainly assessing suitability for community service – symbolically changed in the 2001 Act to a community punishment order), fast delivery reports/same day reports became more evident in court practice and completing three or four of these reports in a day was far from uncommon. A tetchy district judge (a judicial role introduced in 2000) once mildly reproached me, for a proposal in a handwritten report, which she found difficult to read, but was disposed to go along with, as Mr Guilfoyle usually has a keen eye for ‘those trying to pull the wool over the court’s eyes, and some form of rehabilitation is usually his starting point!’

There followed almost incessant top-down organisational changes, a facet of an ever-changing probation service (the Ministry of Justice subsuming prisons and probation into one governmental department in 2007). A move notably set in train by the home secretary John Reid, who before an audience of inmates at HMP Wormwood Scrubs the previous year had described the probation service as ‘poor or mediocre’. This had prompted me to write to him directly to seek clarification for what I felt were his ill-judged remarks, only to receive a formal signed response from the Secretary of State that ‘I should not believe everything I read in the papers’!

I retired from the probation service in 2010, after 20 years as a main grade probation officer, in many ways relieved to be free of what I felt were some of the more disfiguring aspects of over-centralised political and managerial change. But I kept myself busily informed of how the service was responding to these changes by remaining an active member of the probation union, Napo, and writing articles, including a monthly blog post for the Centre for Crime and Justice Studies and book reviews on probation practice and policy for the Probation Journal.

Being sworn in as a magistrate

I recall with measured pride leaving the famed court one of the Central Criminal Court (Old Bailey), having been sworn in as a magistrate to sit on the South East London bench. One of the more memorable lines from the judicial oath which I was required to swear was ‘I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.’ With this worthy injunction firmly in mind, I approached the day of my first sitting as a winger in the adult court with some mild trepidation and anticipation. I sought out the chair who, sensing my slight discomfort put me at my ease, stating, ‘just think how the defendant might be feeling on their first appearance’. I have a fuzzy recollection of feeling ‘elevated’ on the raised bench and made a point of seeking out in my field of vision the probation worker, now on the front line of probation practice.

The informed readership of MAGISTRATE will have many opinions on how judicial confidence in the probation service might be improved. Maybe if the policy of the MA to fully enact section 178 of the Criminal Justice Act 2003, to enable sentencers to more effectively review community orders made by the court, is brought into effect this might positively impact on how magistrates better assess the efficacy of community orders. The scars of probation privatisation, with consequential staff shortages, high caseloads and low morale are still experienced as pressing workplace issues for frontline probation staff, and the operational challenges posed to the criminal justice system by Covid-19 remain significant.

Back to the Future!

Recent legislative proposals on the role of the probation service contained in the Police, Crime, Sentencing and Courts Bill (2021) do have a Back to the Future look to them! But I believe they offer a model of practice that is at least evidence-based and person-centred and in which the professional relationship with those under probation supervision is seen as the cornerstone of change, together with the timely enforcement of orders, the needs of victims and more effective engagement with local courts. A newly unified National Probation Service might well replicate some of the more unwelcome centralism noted in earlier iterations of probation service reorganisations, when probation should be fundamentally, in my view, a service located in local communities, where its ties and links to other agencies like the courts are strongest.

When I sit on the local bench, I still retain a firm commitment to ‘do right to all manner of people’ and try always to remember that justice should be seen to be done – while at the same time aiming to remember, heedful of my first hapless judicial encounter as a hard-pressed court duty probation officer with a harrumphing court user, that trying to do things better is not a bad place to start from!

Mike Guilfoyle JP

PSR Before Plea

It's not a return to PSRs in not guilty cases - yes we used to - but I'm not at all sure we've covered this aspect of PSRs, apparently brought about as a consequence of Covid-19. This from NPS and Law Society last October:- 

Pre-Sentence Report Before Plea 

Introduction 

The purpose of this document is to create a clear operational process, so that pre-sentence reports can be prepared in advance of the magistrates’ court taking a plea at the first hearing. The signatories to the protocol have a responsibility to comply with it and the court and Crown Prosecution Service are encouraged to facilitate it. 

Legal basis 

• The parties have a duty to actively assist the court by early communication to establish the defendant’s likely plea at the first available opportunity.

• The court has a duty to obtain a pre-sentence report before considering community or custodial sentences unless it decides such a report is unnecessary. 

• The statutory definition of a pre-sentence report means a court may consider a presentence report which it has not commissioned, to meet its duty.

• The process also preserves the taking of a guilty plea by the court, following a clear acknowledgement of guilt.

Benefits 

The process will mutually benefit the court, defendant and criminal justice partners as it will: 

• enable the court, in suitable cases, to proceed efficiently and expeditiously to sentence following a guilty plea without adjourning or standing the case down for a pre-sentence report. 

• enable more flexibility in scheduling the pre-sentence report interview, which takes place prior to the hearing. The defence may ask the legal adviser, where necessary, to vary the first hearing date to ensure there is sufficient time to produce the report 

• reduce the time spent physically at court, when social distancing measures are in place, therefore protecting all parties’ welfare during the pandemic. 

Scope 

A pre-sentence report applies where: 

• it is anticipated that an adult defendant, charged to appear before a GAP or NGAP hearing on bail or postal requisition, will be sentenced in the magistrates’ court; for offences triable either way see Sentencing Council allocation guideline,

• a defendant is willing to indicate a guilty plea to all offences charged on the full prosecution basis. 

• a defence legal representative, on behalf of their client, requests a PSR Before Plea. 

This protocol does NOT apply to cases to be sent or committed for sentence to the Crown Court where CrimPD 3A 9 and guidance within the Better Case Management handbook should continue to apply.

The process is set out in Annex A. The form used to request a Pre-Sentence Report Before Plea is attached at Annex B (“the applicable form”). 

Compliance 

In the event of parties consistently failing to comply with their responsibilities under the protocol the matter is to be reported to the Local Criminal Justice Board. 

Signatories 

National Probation Service: Sonia Flynn Chief Probation Officer 

Law Society: Richard Atkinson & Ian Kelcey Co-Chairs Criminal Law Committee Approval by Senior Presiding Judge of England and Wales 

1st October 2020

--oo00oo--

The Probation Institute has recently published a position paper:- 

Use of the Protocol for "Pre-Sentence Report Before Plea"

The Probation Institute has considered the new Protocol for the preparation by the Probation Service, of a pre-sentence report (PSR) before plea, for use in the Magistrates Court where there is an intention to plead guilty and the legal representative has requested the PSR before plea. 

We understand the pressures – volume of cases and long delays, which will have led to the agreement of this Protocol. However there has long been professional practice that pre-sentence reports should only be prepared when a defendant has either pleaded guilty or been found guilty by the relevant court. In our view this practice ensures legal justice for the defendant, avoids pressure to plead guilty, and also ensures that, as far as is possible, the report writer is making enquiries and proposals for sentencing based on the agreed view of the offence/s. 

We regard the Protocol with caution therefore and hope to contribute to ensuring that its use, where considered appropriate, will be the exception not the rule, and should always take into account the interests of justice and follow professional practice carefully. 

We believe that there are risks attached to preparing the PSR before a plea is formally taken in court, or the trial completed. These risks are: 

• The defendant may be pleading guilty in order to receive a reduced sentence or to get out of custody after a long remand. If s/he would otherwise plead not guilty we suggest that this would be an injustice which should not be encouraged by Probation. 

• Sufficient information about the charge (from police, witnesses) may not be available before the plea is taken - the PSR is therefore written without sufficient knowledge to be credible for the court. 

• The protocol recognises that Probation may request that the date of the plea hearing is adjourned to allow time for a PSR before plea. In this case it is essential that sufficient time is provided to enable the necessary assessments and prepare a full report with researched sentencing options? Ten working days is suggested with a minimum of five days. It might be more constructive and beneficial to ask the court for an adjournment post plea or conviction. 

• If the defendant is on bail it is possible that further offences may be committed before the case reaches a court hearing. This would potentially invalidate the contents of the Pre-Sentence Report. 

Here are some of the issues that we consider should be taken into account when using the Protocol for Pre-Sentence Report before Plea. 

1. Has the defendant consented to the preparation of a Pre-Sentence Report before the plea or finding of guilt is established? Do they fully understand the implications of this? 

2. What is the exact legal charge to which the individual is willing to please guilty? Has it changed since arrest? Could it change again? 

3. Has the individual considered pleading not guilty at any stage? If so, what has changed?

4. In order to prepare a PSR the report writer will need to know the facts of the case. Is there an agreed version? Do you have the police statements? 

5. If you are preparing a report on an individual who believes that notwithstanding the plea, they are not guilty it is difficult to discuss accountability, remorse, reasons for this offending etc. This may also affect the willingness of the individual to engage with rehabilitation, particularly on a community sentence. 

6. The court should be made aware in the report that the PSR was prepared before either a plea or a finding of guilt were established. 

7. If at any stage in the preparation of the PSR it becomes apparent that the defendant’s position regarding a plea is unclear the preparation of the report should be paused and reviewed by relevant parties. The defendant’s legal representative should be informed.

Probation Institute 

April 2021

It's All Been Said Before

In amongst all the recent nonsense being talked about lie-detectors, I note the right-leaning Reform think tank has taken the opportunity afforded by a new right-leaning Tory government to say something about our failing prison system. 

Of particular interest to us in probation is what they have to say regarding the numbers of people we are sending to prison and why it would be sensible to reduce this. Of course it's all been said many times before and likely to fall on deaf right-wing ears, but lets give it a look anyway:-

The Prison System 

Priorities for Investment

About 

Reform is established as the leading Westminster think tank for public service reform. We are dedicated to achieving better and smarter public services. Our mission is to set out ideas that will improve public services for all and deliver value for money. We work on core sectors such as health and social care, education, home affairs and justice, and work and pensions. Our work also covers issues that cut across these sectors, including public service design and delivery and digital public services. We are determinedly independent and strictly non-party in our approach. Reform is a registered charity, the Reform Research Trust, charity no.1103739. This publication is the property of the Reform Research Trust. The arguments and any errors that remain are the authors’ and the authors’ alone. 

About Reform Policy 

Reform Policy are in-depth research reports focusing on a specific challenge facing public services. They provide a detailed and evidence-based examination of the issues and put forward implementable recommendations to government, public sector bodies and other key stakeholders to help deliver better public services for all.

Recommendation 1: The Ministry of Justice should launch a consultation on the use of custodial sentences and consider the impact of implementing a ban on, or presumption against, short custodial sentences. It should also consider how to make magistrates more willing to use and improve their understanding of a community sentence, as they are less expensive than prison sentences and, on average, more effective at reducing reoffending. 

Recommendation 2: The Ministry of Justice should develop a strategy for future prison closures which considers various factors such as their location, efficiency and effectiveness or whether they would be too difficult to replace. This will help the Government to create a more fit-for-purpose estate. 

Recommendation 3: The Ministry of Justice should devolve a portion of the facilities management budget to prison governors. This could allow for minor maintenance problems to be addressed more quickly by local provision. 

Recommendation 4: The Government should fund the Ministry of Justice £900 million to address the growing maintenance backlog in prisons, to improve standards of decency and safety. 

Recommendation 5: The Government should ensure that the Ministry of Justice receives additional annual funding to sustain new and improved prison security measures, so that prisons can continue to disrupt the supply of contraband in the long term. 

Recommendation 6: Her Majesty’s Treasury should ensure that Her Majesty’s Prison and Probation Service has enough funding to close the pay gap between Closed and Fair & Sustainable pay grades by 2027, to end the two-tier pay system for Her Majesty’s Prison and Probation Service staff.

Introduction

In 2016 the Government published a landmark White Paper, ‘Prison Safety and Reform’, which promised to deliver much-needed changes to the prison system.  It committed to address poor safety for staff and prisoners, high levels of assaults, the poor condition of the estate, poor retention in the workforce, and ultimately poor outcomes for reoffending. 

Since the Government laid out its plans for “the biggest overhaul of our prisons in a generation” progress has been poor in several key areas: 

• Prisoner-on-prisoner and prisoner-on-staff assaults have increased by 30 per cent since 2016.  
• Incidents of prisoners self-harming have increased by 65 per cent since 2016.  
• The leaving rate for Band 3-5 staff – operational prison officers – has increased by 32 per cent since 2016. 
• In the 12 months to March 2019, 17 per cent of drug tests on prisoners were positive. 
• Nearly £529 million intended for spending on the prison estate has been diverted to spending on the day-to-day running of prisons since 2016. 

Significant resource pressures on prisons are likely to have held back the progress of reforms. The White Paper promised prisons the “resources, authority and tools” to address these challenges, but real-terms resource spending on prisons fell in 2016-17 and 2017-18. Her Majesty’s Inspectorate of Prisons (HMIP) has highlighted that “reduced resources, both in terms of staff and investment [has] made it extremely difficult” to run prisons.

Increasing spending is an opportunity to make progress – if targeted effectively. In 2018- 19, Her Majesty’s Prison and Probation Service’s (HMPPS) resource budget rose by 4 per cent in real terms to over £3.9 billion. Several further commitments have been made: £2.5 billion for 10,000 additional prison places, £100 million for enhanced security, and £156 million for maintenance. To make the most of this increased spend the Government should focus on four priorities: more effective sentencing policies, creating a fit-for-purpose prison estate, improving prison safety, and developing the workforce.

1 Smarter Sentencing

Sentencing policies affect key outcomes of the justice system, such as levels of crime, and also have an impact on the size of the prison population. The courts must not only protect the public by imprisoning people who have committed serious offences, but it should use sentences and sanctions that make them less likely to reoffend in the community. However this is not currently the case, as three quarters of all crime is reoffending. It has a huge cost to society, estimated at about £18.1 billion a year, five times what the Ministry of Justice (MoJ) spend annually on prisons. To address high levels of reoffending and unsustainable levels of overcrowding the Government should ensure that prison sentences are used proportionately. 

1.1 Towards effective sentencing

Some types of sentences are used heavily even though they result in consistently high levels of reoffending. Nearly half of all prison sentences are ‘short’ custodial sentences of six months or less. The majority of these, some 11,500, are for theft offences. These carry a very high reoffending rate of 65 per cent – for theft offences specifically, it is 82 per cent – and this has remained around this level for over ten years. Convicted offenders who are not sent to prison may instead receive a community sentence. If they are personalised and properly enforced, these flexible punishments may entail unpaid work, restrictions on activities or a curfew, and rehabilitative measures, such as treatment requirements for addictions or mental health problems. While reoffending rates are not directly comparable, the reoffending rate for suspended sentence orders and community sentences is only 33 per cent, illustrating how high the rate is for those on short custodial sentences.

Reoffending following short sentences costs an estimated £4.4 billion a year, which could be avoided in part if other types of sentences where used. Short sentences can break a prisoner’s ties with housing, employment families and leave little time to focus on prisoner’s needs, making them more likely to reoffend. While short-sentences prisoners make up only a small proportion of the prison population at any one time, the high churn that they create puts disproportionate and sustained pressure on the criminal justice system. Community sentences could be used instead for many offence types.

The MoJ has shown in repeated studies that these are on average more effective at reducing reoffending. Evaluating levels of reoffending between two groups with comparable offender characteristics – created from 150 variables including offending history and other data like employment history – the MoJ has shown that those on community sentences reoffend 4 per cent less than those on short sentences, and those who do reoffend commit fewer crimes. 

Therefore, to reduce reoffending and deliver the best value-for-money, the use of short prison sentences should be reduced in favour of non-custodial sentences. At just under £4,500 annually, a community sentence costs just over a tenth of the cost of imprisonment.  Given the evidence that community sentences are often more effective, if these are used instead of short custodial ones, reoffending should decrease and the costs associated with repeat crime should fall. The MoJ estimate that if all those who currently receive a short prison sentence instead received a community sentence, there would be 32,000 fewer crimes every year. This would create savings for the police, the prison service, and the public. It has been estimated that the Government would accrue savings of at least £83 million a year if community sentences were used instead of short prison sentences for theft and non-violent drug offences.

1.2 The decline in community sentences

In the last ten years the numbers of custodial sentences and community sentences passed have decreased, as shown in Figure 2. However, despite the evidence in their favour, community sentences have declined at a much faster rate, with their use more than halving in the last decade. 

This decline in the use of community sentences is likely to have been driven by poor confidence in their effectiveness, against a background of continued poor performance by probation services. Despite the evidence that they result in less reoffending on average, in a 2017 survey of 582 magistrates, 37 per cent said that they were not confident that a community sentence is an effective alternative to custody. In addition, 65 per cent felt they did not reduce or deter crime, and three quarters felt that they did not effectively protect the public. 

Magistrates will often lack a full understanding of community sentences due to poor training or available information. In the same survey, 28 per cent of respondents said they did not feel their training had adequately prepared them for dealing with community sentences. The use of pre-sentence reports by the National Probation Service to sentencers, which recommend what a community sentence should include, declined by 22 per cent between 2012-13 and 2016-17. The Centre for Justice Innovation has suggested a link between this and the decline in community sentences. Similarly, as probation services for low-risk offenders are currently provided by private Community Rehabilitation Companies, who are not permitted to access courts and advise magistrates, sentencers will often not be fully informed. 

Sentencers may lack confidence in probation services to enforce a sentence properly. The “implementation and delivery” of probation services by all Community Rehabilitation Companies inspected by HM Inspectorate of Probation in the 12 months to March 2019 was rated at best as “requires improvement”, with the majority rated as “inadequate”. Investing in a larger, better trained workforce could result in higher-quality supervision and enforcement, and therefore begin to offset the costs of reoffending. The Government plans to spend at most an average of £329 million a year on Community Rehabilitation Companies’ services between 2014 and December 2020, which is less than one fiftieth of the annual cost of reoffending. 

In 2021 under a new proposed model for probation, the management of offenders will return to the National Probation Service and some elements of community sentences, such as unpaid work, will continue to be outsourced. Whilst it cannot yet be said whether this will result in more personalised, well-delivered community sentences, it is likely that investing in this part of the system could create better outcomes. 

To move towards a more effective sentencing policy for those who currently receive short sentences, the Government could consider doing two things. First, it should invest in better training for sentencers. Spending on training for magistrates fell from £72 per person to £30 per person between 2009-10 and 2013-14, and it is reported that this trend has continued. If magistrates were better informed about community alternatives, they could be more willing to use them. Second, the Government should consult on how to decrease the use of short prison sentences. This should consider how to affect this change, such as with a ban or a presumption in favour of community sentences.

Recommendation 1: The Ministry of Justice should launch a consultation on the use of custodial sentences and consider the impact of implementing a ban on, or presumption against, short custodial sentences. It should also consider how to make magistrates more willing to use and improve their understanding of a community sentence, as they are less expensive than prison sentences and, on average, more effective at reducing reoffending.  

Food for Thought

As we have previously mentioned, Rory Stewart signalled a few weeks ago that the government is minded to effectively outlaw imprisonment of less than six months, a policy he expanded upon in a recent interview with Erwin James. It prompted the following letter:-

Rory Stewart is correct that short sentences are largely ineffective in reducing reoffending and should be used as rarely as possible. Sentencing guidelines used by magistrates are, however, already clear that custody must be only be used when there is no appropriate alternative. The proposed “presumption against” short prison sentences would therefore be unlikely to make any significant difference. Indeed, this has been demonstrated in Scotland, where a government evaluation of the impact of their recently introduced presumption against short prison sentences found that in practice it has had a minimal impact on sentencing decisions.

If the Ministry of Justice wants to see fewer short sentences, its focus should instead be on ensuring that effective community sentences, including appropriate options for women and treatment for people with mental health, drug or alcohol problems, are available in every area of the country. Magistrates should also be given the power to review the progress made by an offender serving a community sentence. This would enable us to impose community sentences with confidence, knowing that they will help offenders to turn their lives around.

John Bache
National chair, Magistrates Association

But lets look at the context. This from the Guardian:-

Rise in recorded crime is accelerating in England and Wales

The rise in crime in England and Wales is accelerating, according to police figures, which show a 14% year-on-year increase in offences recorded by forces across England and Wales. Knife crime has gone up even more steeply, by 21% in the 12 months to September, and gun crime has risen by 20%, according to quarterly figures released on Thursday.

Police chiefs said the increases – including a 32% rise in domestic burglary to 261,965 offences and an 18% rise in vehicle-related crimes (443,577 offences) alongside the sharp rises in violent crime – marked a turning point after more than 20 years of sustained falls in these categories.

“Today’s police officers are dealing with more complex crime, more safeguarding and protecting vulnerable people and an unprecedented terror threat, as well as tackling some of the genuine rises in knife and gun crime, robbery, burglary and vehicle-related crime – crimes which turn the trend on many years of reductions,” said chief constable Bill Skelly, of the National Police Chiefs’ Council.

Meanwhile, official figures show that the number of police officers in England and Wales has fallen by 930 in the past 12 months, to 121,929, the lowest level since comparable records began in 1996. Police officer numbers are now 22,424 below their peak in 2009, when there were 144,353 officers.

Then there's this from the Independent:-

Justice system in ‘crisis’ as only 8% of crimes prosecuted in England and Wales

Tens of thousands more crimes are not being prosecuted amid warnings of a worsening “crisis” in Britain’s criminal justice system. Almost 92 per cent of offences do not result in perpetrators being charged or summonsed in England and Wales, with the number of offences taken to court dropping by almost 30,000 in a year.

Lawyers, police officers and victim support workers interviewed by The Independent blamed a perfect storm of police cuts, rising crime, rows over disclosure, falling confidence and the backlash to a series of collapsed rape cases. Figures published by the Home Office show in the year ending September 2018 only 8.2 per cent of 5 million recorded crimes were prosecuted, down from 9.5 per cent the previous year. The lowest figures were for sexual offences (4 per cent), with only 1.9 per cent of recorded rapes prosecuted – down from 2.4 per cent the previous year. Nick Thomas-Symonds, Labour’s shadow solicitor general, said the statistics made “very worrying reading”. 

“This is, sadly, no surprise given the swingeing government cuts to both police and Crown Prosecution Service budgets,” he added. “The government has to step up to the plate and provide the resources needed to properly support victims and ensure that no stone is left unturned in bringing people to justice."

The reason for closing almost half of investigations was that no suspect had been identified, but almost a third were listed as “evidential difficulties”. There was a sharp rise in the proportion of cases recorded as “victim does not support action”, increasing to 42 per cent for violence, 35 per cent with rapes and 29 per cent of sexual offences. The victims’ commissioner, Baroness Newlove, raised concern that lengthy delays, poor conviction rates, demands for phones and personal records, and the prospect of cross-examination were making women drop claims. 

“The very low percentage of rape and sexual violence cases that result in a trial is a huge concern, as are the increasing number of victims who do not want to endure the criminal justice process,” she said. “I am often hearing from victims of sexual crime that their criminal justice journey is as harrowing as the crime itself. This is just not acceptable. I fear we are letting these victims down badly.”

Finally, there's David Fraser who I notice has been plugging his latest contrarian book on the Conservative Woman website:- 

The inescapable fact – growing leniency equals rising crime

From the late 1950s Britain’s official attitude towards crime began to change. Instead of being viewed as bad behaviour that needed to be punished and controlled, it was increasingly judged to be a symptom of a social or psychological malaise. The offender was seen as being forced into crime by poverty, inequality or other forces beyond his control which society could, and should, alleviate. Greed, laziness and the wish to dominate others were no longer recognised as the motives for violent crime. Persistent violent and dangerous criminals, who spurned hard work and thrift as the route to a comfortable standard of living, were rewarded with state protection from prosecution whenever possible, and the guarantee of their human rights, even in the face of their violence and law breaking. What was required, our ruling elites argued, was the application, wherever possible, of non-custodial sentences (even for violent offenders), such as the supervision of offenders in the community, to identify and alleviate the ‘underlying causes of crime’.

This has never worked, either to reform offenders or to protect the public. The re-offending rates of supervised criminals have steadily worsened. Forty years ago they were 41 per cent measured over two years. They are now at least 56 per cent measured over one year. This equates to millions of offences committed against the public every year by offenders trusted with their freedom. Further, between 1998 and 2014 there were at least 6,300 of the most serious violent and sex crimes, such as murder, rape, robbery, kidnapping, committed by criminals on the probation service’s books.

Eighteen-year-old Opemipo Jaji, a violent sex offender, was convicted of making an indecent image of a child as well as robbing and sexually assaulting a 12-year-old girl. Despite his obvious dangerousness, he was given 18 months probation supervision in the community. A few months later, Jaji, having made a routine visit to his supervisor, left the probation office at about 4 pm.

After about five minutes, he fell in behind an 11-year-old girl walking home from school. He followed her, chose his moment and dragged her into a park and subjected her to a violent three-hour assault. While this attack was taking place, his supervising officer would have been putting the finishing touches to his record entry covering the interview. Probably, at the very moment that he closed the file and sat contemplating how well Jaji was doing and the wisdom the courts had shown in not sending him to prison, Jaji was repeatedly raping the terrified child.

During the 1990s the probation service embraced the idea that ‘thinking skills’ programmes, designed by psychologists, could identify faults in the way offenders made decisions and so help them avoid crime. They were hopeful that years of failure could at last be reversed. But four years later the published results showed that not only had they had failed to reform the offenders on these programmes, but that in many cases their offending had increased.

What probation and other officials will not admit is that crimes are not committed because of faulty thinking skills, nor because of some pressing social or psychological need, nor because of problems associated with poverty and inequality, but because the offender chooses to commit them.

Although it is true that many criminals emerge from the poorer or less well-off sections of the community, it is wrong to interpret these conditions as factors which ‘cause’ crime. (An analysis carried out in 2011 found, contrary to what many believed, that countries with greater degrees of inequality and poverty had less crime than those which were wealthier and with more equality). Most people who choose to be violent and commit crime tend also to make life choices that generally keep them in the lower classes of our society. For example they refuse to work at school, are violent, ill-disciplined, demand instant gratification, and fail to plan for the future. This is not to say that they do not have access to money – crime and violence brings many of them a good income and their social station in life can be seen as an indicator of how they choose to live and spend their ill-gotten gains. The fact that the majority of children from poorer home backgrounds go on to live decent law-abiding lives bears out this truth. In 1926, when millions of working-class Britons lived in dire poverty, our violent offender rate was 4.4 per 100,000 of the population. It is now over 1,400.

Swathes of legislation have allowed courts to avoid using imprisonment for increasing numbers of convicted criminals. Yet we are told ‘we send too many offenders to jail’, and many now believe this is a truth written in stone. But it is a trick created by measuring the numbers in prison against our general population. When computed this way, it suggests that our imprisonment rate, per 100,000 of the population, has been rising.



But a moment’s reflection tells us that most of us do not commit crime and are not in that group of persons liable to be sent to jail. Therefore, this calculation tells us nothing about how lenient or severe we are in our use of prison for criminals. A more accurate imprisonment rate can be obtained by expressing the prison population against the number of crimes committed. The following graph shows that our imprisonment rate, when calculated in this way, has, since the 1950s, fallen not risen, and that we are not the ‘prison-obsessed nation’ that the anti-prison lobby would have us believe.



The opposite is the case. Only 28 per cent of offenders convicted of a serious crime are given a term of imprisonment. The public are left to rub shoulders with the remaining 72 per cent, except, of course, the justice elite, whose gated communities in cities and country retreats provide them with a level of security not available to the majority. Generally, they are not affected by crimes committed by those they campaign to keep out of jail. Many who are sentenced to imprisonment do not stay in long. The average sentence length for ‘violence against the person’ crimes is just 23 months, which in practice means 11 months, because almost all sentences are subject to 50 per cent remission.

We do not need psychologists to tell us that if you reward bad behaviour you will get more of it. We should not be surprised that violent crime is escalating. The offenders have taken their cue from us.

David Fraser

--oo00oo--

This about the book and author:-

Based on over 30 years research of government sentencing policy and work in the criminal justice system, David Fraser’s book demonstrates that the State’s increased reliance on alternatives to imprisonment has allowed all categories of violent crime to flourish in Britain; that, the homicide rate, for example, doubled between 1964 and the turn of the millennium; that the numbers of life threatening attacks have increased rapidly over the last 40 years, and that justice officials have hidden this development with a blizzard of deceptive statistics whose purpose is to mislead rather than inform the public.

Anti-prison groups and other apologists for offenders tell the public that violent offenders can be ‘managed’ in the community under supervision to the probation service, that prison doesn’t work because it makes offenders ‘worse’. The analysis presented here shows that none of this is true. Readers will be informed that contrary to the misleading propaganda regularly fed to the public, that parole is a cruel absurdity and should be abolished, that criminals under probation supervision as an alternative to imprisonment, commit hundreds of murders and other serious crimes every year, while the governments own figures, kept away from the public eye, makes it clear that long prison sentences are our best protection against violent (and other) crime, and are effective in encouraging criminals to reform.

The book demonstrates that the death penalty was an effective deterrent to homicide but its purpose is not to argue for its reintroduction. But by acknowledging its effectiveness, we can argue the case for a re-vamped sentencing system that is as effective as was the fear of the hangman’s noose. Evidence shows that the adoption of a 2 or 3 strike sentencing system resulting in mandatory long prison terms would provide the public with a much greater degree of protection. Other English speaking countries who have, in response to public demand, legislated this type of system have found that it discourages further violence and has produced startling reductions in crime.

David Fraser was a senior probation officer and criminal intelligence analyst with the former National Criminal Intelligence Service (now The National Crime Agency). He has had many articles published along with two well received books, the first of which was recommended for the George Orwell Prize in Literature. It provoked wide interest in this country and abroad and was commended to the House of Commons during a speech by an MP. David Fraser is married with two adult children and two grandchildren and lives in the South-West of England.

Where Did It All Go Wrong? 2

Earlier this year I went away for a week and as luck would have it, my absence coincided with an important report published by an outfit called Crest  Where did it all go wrong? A study into the use of community sentences in England and Wales. 

Although I gave it a brief mention here, mostly highlighting the proposals, I regret not having given it a closer look because it rather neatly confirms everything we've previously discussed at some length, including the hugely damaging effect of TR. As this supposedly independent report makes clear, the Probation Service has clearly been thoroughly smashed by utterly inept political involvement over several years and there is now an urgent need for an effective plan 'B' that goes beyond paying the CRCs more money. 

In essence, we have a major and growing crisis in our prisons, coupled with a massive reduction in community sentences and now clear evidence of a significant increase in crime. Interestingly, despite being published only three months ago, the opening line and premise "Despite overall crime falling" has proved to be completely false. 

A long but important read I feel. Here are my selected highlights of the analysis contained in the report - the proposals were covered in the earlier post:- 

Executive Summary

Despite overall crime falling, our criminal justice system remains under pressure. Nowhere is that more apparent than in our prisons, which are, in the words of the former Chief Inspector, “in their worst state for a decade”, with violence, overcrowding and self-harm higher than at any point on record. 

Policymakers have long understood that a key part of the solution to an overstretched prison system lies in a more effective regime of community sentences, able to secure the confidence of magistrates and the public. As far back as 2003, Pat Carter (whose review presaged the creation of the National Offender Management Service) was calling for sentences in the community “to be made more demanding” as a way to re-balance the system. And in November 2016, the Lord Chief Justice called for more offenders to be sentenced to “tough” and “visible” alternatives in the community, in order to reduce the numbers sent to prison. 

The notion that community sentences can be a more effective, cheaper alternative to prison is supported by a strong body of evidence. At their best, sentences served in the community can offer a powerful tool for addressing the root causes of offending behaviour, reducing the rate at which an offender reoffends and thus lowering demand on the system overall. 

Yet despite their obvious potential, community sentences (community orders and suspended sentence orders) are being used less than at any point over the last 15 years. Since 2004, the numbers sentenced to community orders have halved, and overall numbers of sentences served in the community are down 25%, whilst the numbers sentenced to custody have remained relatively stable. Not only is this fuelling unnecessary pressure on our prisons, it is impacting the financial viability of community rehabilitation companies, who are struggling to cope with a lower than anticipated volume of paid work. 

This report is the first systematic attempt in over a decade to understand what lies behind this phenomenon. It reveals that community sentences: 

● are implemented in a way that bears little resemblance to the evidence of what works: they are neither intensive, swift, nor punitive enough to act as a proper deterrent. Most importantly, offenders are not held properly to account for complying with their sentence. The Probation Inspectorate (HMIP) has found that in a third of cases where the offender breached their order, “insufficient effort was made by the CRC responsible officer to re-engage them” 

● are failing to transform lives, acting as little more than a stepping stone on the path to prison: 35% of those sentenced to custody have received at least five previous community sentences

● have lost the confidence of magistrates: a new survey of magistrates commissioned for this report reveals that over a third of magistrates (37%) are not confident that community sentences are an effective alternative to custody, and two thirds (65%) are not confident that community sentences reduce crime.

These problems are the result of long term structural issues relating to the operation of the criminal justice system, which largely pre-date recent changes to the mix of crimes and government policy reforms. In particular, there appears to have been a long term decline in: 

● the quality/depth of advice provided to the court to guide sentencing decisions - in the form of ‘pre-sentence reports’ (PSR): there has been a transition over the past decade from PSRs being detailed, written reports to speedy, short, written and oral reports. Almost half (42%) of reports in 2015 were delivered orally, with no information recorded, compared to just 5% in 2006

● the level of information/training provided to magistrates: meaning they are unable to make the most effective use of community sentences and/or to take into account probation providers’ capacity to deliver. Over a third (36%) of magistrates do not feel that the training has adequately prepared them for dealing with community sentences and their requirements 

● probation’s ability to deliver personalised sentences that address the underlying causes of an offender’s behaviour and hold the offender to account for compliance: our qualitative research has revealed a deep-seated sense of decline amongst probation staff about the quality of services being provided and the ability to enforce breaches, which has been exacerbated by recent government policy changes. Four in ten magistrates (39%) are not confident that community sentences can be tailored to suit the individual needs of an offender.

These proposals come at a time of significant change to the way offenders are managed in the community. Whilst it is too early to be definitive, there is emerging evidence that the government’s flagship reform programme - Transforming Rehabilitation (TR) - will exacerbate the problems identified above, reducing dialogue between probation and the courts, reducing incentives to deal swiftly with breaches and stifling innovation in the delivery of services to prevent reoffending. There is also little doubt that the fiscal context, with funding having declined since 2010 and set to continue falling, will add to the pressures identified in this report. 

Our report seeks to learn the lessons of the recent past, in order to influence the future of sentencing and probation reform. The research was informed by a large number of interviews with police and crime commissioners, magistrates, probation staff, police and policymakers. We also commissioned a new survey of magistrates through the Magistrates’ Association.

Approach

Various explanations have been postulated about the apparently declining relevance of community sentences: 

● A loss of confidence by sentencers and the public in the effectiveness of community sentences 

● Changes in crime patterns, meaning a more serious mix of offenders is coming before the courts, for whom community sentences are less appropriate 

● Risk aversion within the National Probation Service in recommending community sentences in pre-sentence reports 

● The impact of the Transforming Rehabilitation reforms, including the design of Community Rehabilitation Company (CRC) contracts and the introduction of through the gate support for short term prisoners

History and purpose of community sentences 

Chapter summary: 

● The community sentences (community orders and suspended sentence orders) in use today were introduced in 2005, but subsequent policy reforms since 2010 have affected the way offenders are managed in the community and how community sentences are used in practice. 
● Technically, though both sentences are served in the community, COs are non-custodial sentences and SSOs are sentences of imprisonment served in the community. Both COs and SSOs can be comprised of one or more of 13 possible conditions, or ‘requirements’ to enable the sentence to be tailored to the needs of the offender. 
● Whilst in theory, Community Orders (COs) and Suspended Sentence Orders (SSOs) are identical (in terms of the requirements they can impose) SSOs tend to be less onerous, since the threat of incarceration is deemed a punishment in and of itself. 
● In 2016 just over 100,000 COs and 56,000 SSOs were given out, compared to almost 200,000 COs and 22,000 SSOs in 2006.

The development of community sentences 

The community order (CO) and the suspended sentence order (SSO) as they are recognised today became available in 2005, having been introduced by the Criminal Justice Act 2003, and were designed to provide more credible alternatives to short term custodial sentences and a solution to the rising numbers in prison. 

The new CO replaced and standardised the range of pre-existing community sentences (known as community penalties) that had previously developed erratically, and simplified the order by combining all other former community sentences, meaning magistrates and judges could more easily tailor sentences according to the particular nature of the offence and the offender. 

The SSO revived an older style of sentence that was rarely implemented due to stipulations under the former legislation that it could only be used in “exceptional circumstances” . These 17 stipulations were scrapped in the 2003 legislation, giving new life to the suspended sentence. 

Since 2010 the government has introduced a number of reforms to the way we manage offenders in the community. During the last parliament there were three big policy developments:

● 2012 Legal Aid, Sentencing and Punishment of Offenders Act (LASPO), which reformed SSOs 
● 2013 Crime and Courts Act, which reformed COs 
● 2014 Offender Rehabilitation Act, which: a. introduced the Rehabilitation Activity Requirement (displacing supervision requirements); and b. introduced the so-called ‘Transforming Rehabilitation’ reforms to probation

The general thrust of reforms since 2010 has been to make community sentences more robust and rigorous (thus driving up confidence), whilst making it easier for sentencers to craft an appropriate intervention for a particular offender. However, it is far from clear that they have achieved their intended purpose, as the next sections of this report will show.

Trends in the use of community sentences

Chapter summary: 

● The number of community orders has essentially halved over the past decade, with an increasingly sharp decline from 2011 onwards, whilst custody and fines have remained relatively stable. The rising use of suspended sentence orders has not offset this trend 

● The use of community sentences has declined fastest for theft and drugs offences 

● There appears to be little difference between the makeup of offenders on COs and SSOs, based on their harm and reoffending risk evaluations 

● Unpaid work is typically the most common requirement commenced under a community sentence, and since its introduction in 2015, the RAR has become the second most common 

● Delays are common between sentencing and commencing a requirement, and vary between regions and type of requirement 

● The majority (70%) of offenders undertaking a community sentence go on to complete their sentence, however: 

○ 30% of community sentences fail for the committal of an additional offence, or for breach of sentence stipulations ○ reoffending rates have remained relatively flat over the past decade and vary between disposals: custody stands at 45% (rising to 60% for short custodial sentences); COs at 35%; and SSOs at 31% (which has decreased from 37% a decade ago) 

○ reoffending performance varies between CRCs, with interim reoffending rates ranging from 26% to 43% for community sentences ○ prolific offenders (those with 15 or more previous convictions or cautions) make up an increasing proportion of those sentenced; for community the proportion has risen from 15% in 2005 to 25% in 2015. 

○ 75% of offenders sentenced to immediate custody for an indictable offence in 2014 had previously served at least 1 community sentence

Court sentencing

Trends in court sentencing over the last decade paint a stark picture. Against a backdrop of falling sentences overall, the number of offenders sentenced to community sentences has fallen dramatically (essentially halving), particularly since 2011, whilst those sentenced to immediate custody have remained relatively stable. Just over 100,000 community orders and 56,000 suspended sentence orders were given out in 2016, compared to almost 200,000 COs and 22,000 SSOs a decade ago.

These figures are even more dramatic if we look at the last five years: during which time there has been a staggering 78% decline in the number of community sentences. In 2010, a report by the think tank Policy Exchange described the so-called “unprecedented expansion of community sentences” as “the untold story of the criminal justice system over the last twenty years”. Seven years on, it is their almost disappearance that is the untold story of the CJS.

Trends in the composition of community sentences 

Unpaid work has consistently been, and remains today, the most frequently used requirement commenced under a community order, followed by Supervision (now displaced by the new ‘Rehabilitation Activity Requirement’ - see below) and Curfew. Unfortunately, there is very little publicly accessible data on what constitutes ‘unpaid work’ - the kind of work involved, how intensive it is and where it takes place.

As the National Audit Office (NAO) has noted, the fact that ‘accredited programmes’ represent a falling proportion of requirements commenced has significant implications for the financial viability of CRCs, who are paid according to the number of offenders completing such programmes (as opposed to ‘RARs’, for which they are required to pick up the costs), which CRCs have linked to the declining quality of PSRs. (In response, the NPS and CRCs have begun working on an ‘Effective Sentencing Framework’, which will seek to address this issue by guiding report writers toward the appropriate sentence.) 

Looking in detail at the mix of requirements commenced under community sentences it appears that COs became slightly more punitive between 2012 and 2015 (45% of sentenced included requirements deemed as principally punitive in 2015 compared to 41% in 2012) - 47 following changes introduced through the Crime and Courts Act. However, this is still someway short of the government’s intended ambition that every CO includes a punitive element.

Loss of confidence by magistrates 

Interviews conducted with magistrates for this report found that there is a high confidence in the principle of community sentences and what they are designed to achieve. However, a new survey by Crest shows that magistrates lack confidence in the practical effectiveness of community sentences. Our survey shows that:  

● Over a third of magistrates (37%) are not confident that community sentences are an effective alternative to custody 
● Two thirds (65%) are not confident that community sentences reduce or deter crime 
● 45% are not confident that community sentences effectively rehabilitate offenders 
● Three quarters (76%) are not confident that community sentences protect the public 
● Half (49%) are not confident that community sentences can be tailored to suit the individual needs of an offender 
● Just under a third (30%) are not confident that community sentences provide an appropriate response to the range of low-to-medium level offences they cover.

Drivers of decline

Our key conclusions: 

● The primary driver of is declining confidence in community sentences, which relates to long term structural issues to do with the operation of the CJS 
● In particular, the lack of information accessed by magistrates (pre- and post-sentence) and the declining quality of advice pre-sentencing from probation seem to have been key factors 
● It is possible that the number of community sentences may have fallen due to a change in the cohort of offenders, in particular, with a rise in prolific offenders, but this is unlikely to have been the primary driver of changes in sentencing behaviour 
● These trends pre-date recent policy changes, such as TR, though TR is likely to exacerbate the problems. In particular, the split between CRCs and the NPS, and the structure of CRC contracts is in all likelihood going to reduce confidence even further 
● Longer term, the biggest barrier to confidence is likely to be the continuing evidence (and perception) of low effectiveness

The role of probation

Another possible explanation for the decline in community sentences is an increasing risk aversion within the probation service in recommending community sentences in PSRs.

A growing target-driven culture 

Many of the probation staff we interviewed felt that the move to a more target-driven culture in probation (which began around 2003-04) had had significant implications for the provision and delivery of community sentences. Historically, the stated role of the probation service had been to ‘advise, assist and befriend’ offenders until the establishment of NOMS in 2004, when the emphasis shifted toward a focus on punishment, rehabilitation and public protection. Focus group participants were in agreement that the combined impact of these changes had been to drive an emphasis on process, rather than outcomes, leading to greater risk-aversion across the system and, crucially, reducing the amount of time officers spent with offenders. 

Focus group participants suggested that probation has been heavily influenced by changes in political ideology, meaning that the service provision, at least in the time the participants had been in probation (for most, over a decade), was in constant flux. This, they suggested, meant that offenders were now confused by the system - making it less likely that they would complete their requirements and harder for probation officers to fulfil their duties. 

Reduced quality of advice, pre-sentencing 

Before imposing a custodial or community sentence, the court is required to obtain a PSR unless the court is of the opinion that a report is unnecessary in all the circumstances of the case. PSRs are prepared by probation officers for consideration pre-sentencing, both in the magistrates’ courts and in the Crown Courts. They are designed to give information to the sentencer about the circumstances and context of the case and the offender. Some reports can be prepared on the day by NPS court officers. These reports are for cases already known to the probation service, or if the case is straightforward ('Oral' and 'Fast Delivery' reports). 

Others require a fuller assessment carried out by a probation officer ('Standard Delivery Reports'). Nationally, only 69% of the PSRs that proposed a community sentence are followed by a community sentence being given, compared to 81% of PSRs that propose custody.

The types of report prepared for magistrates have also changed dramatically over the last decade. In 2006, standard written reports made up the majority of PSRs (66%) - in 2015 they made up 11%. By the same token, almost half of reports in 2015 were delivered orally, compared to just 5% in 2006.

This change in PSR is indicative of a conscious policy transition from standard PSRs (which can take up to 15 working days to prepare) toward fast oral reports (which can be prepared in 20 minutes). The guidelines published by the sentencing council recommend that "ideally a pre-sentence report should be completed on the same day to avoid adjourning the case". A 69 recent report into efficiency in the criminal justice system recommended a move to dispense with PSRs where possible or replace them with oral reports in cases which do not require a PSR, i.e. a community order which includes a single requirement that does not necessitate the involvement of probation (e.g. a curfew order). 

Our interviews with probation staff supported these findings. Many held the view that the changing nature of PSRs meant that they now lack detail, which could mean that requirements being handed out as a result of report recommendations are not always appropriately tailored to the individual offender. Some participants felt that these effects had been exacerbated by TR, with NPS staff lacking the time/resources to draft PSRs of the requisite quality and detail. As a result, offenders were increasingly being handed a community sentence that would not address the root causes of their behaviour, would not allow probation to effectively do their job, and result in the offender coming back in front of the courts. Whilst efficiency and speed are to be sought after in the delivery of justice, it is not evident that the appropriate balance with quality has been struck.

The impact of recent policy reform

There is little doubt that the problems surrounding community sentences pre-date the roll-out of TR, and until data on reoffending are compiled in late 2017, judgements about the overall performance of probation services must remain partial. However, evidence compiled by the NAO and from our focus groups suggest that TR may have exacerbated long term problems that have been affecting the system in certain ways. These are set out below: 

Communication between probation and the court 

Under the terms of TR, CRC staff are not allowed in the court, despite retaining responsibility for 70% of offenders serving community sentences. There is emerging evidence that this has reduced levels of communication between sentencers and probation, whilst reducing the quality of the PSR. For example, in our interviews with magistrates and probation staff, nearly all participants felt that the split (between CRCs and the NPS) as a result of TR had increased the distance between magistrates and probation staff, as they no longer had any direct interaction with the people that worked with these offenders. 

“We feel more at arm’s length from probation.” - Magistrate

The range/quality of locally available rehabilitation provision 

The volume of work that CRCs are paid for, as measured by the payment mechanism, has been much lower than expected and promised in the original contracts from the MoJ. This reduced funding, combined with rising caseloads (following the introduction of statutory supervision, which is unpaid) has impacted upon the ability of CRCs to commission innovative/new provision i.e. anything which is not on an agreed ‘rate card’. It is also clear, as indicated in Table 3, that CRCs’ ability to deliver the core requirements of community sentences varies greatly across the country. As far as existing data suggests, in the worst performing CRCs, three in ten programme requirements are not successfully delivered, and one in five unpaid work requirements is not fully completed.

The impact of TR on local delivery 

To understand how TR has impacted on the confidence and perceptions of sentencers and service users, qualitative research was undertaken in Greater Manchester and Norfolk. The aim was to test whether TR has exacerbated existing factors that have contributed to the decline in community sentences, and ascertain whether further decline can be expected. The findings are explored below. 

Inflexibility of the TR model to tailor provision to local needs 

The one-size-fits-all TR model commissioned at the national level is too rigid to be adapted for all offenders and all contexts at the local level: 

● The model doesn’t necessarily fit with Greater Manchester’s vision for managing women offenders, who, according to TR, must be assessed by a probation officer in custody, rather than at a women’s centre 

● Rigid scrutiny from central government, with three separate MoJ teams regularly demanding input/engagement from CRC staff, generates a significant amount of work. The sentiment from CRC staff is that they feel like they are ‘feeding the machine’ rather than actually delivering for local communities. 

Contract specifications and payment schedules are based around processes and volumes, rather than outcomes 

Whilst the MoJ operating model talks about TR as an outcomes-focused programme, with maximum flexibility for providers, the reality, post-award, is that CRCs are being micromanaged and innovation is being stifled: 

● CRCs are measured according to 16 separate service levels (including the number of starts on unpaid work; how many plans are completed in 10 days; timeliness for recalling people to prison etc). There are financial penalties attached for not meeting these service levels. 

● The completion rates for behavioural programmes have generally been much lower than anticipated. Even though the pipeline of participants is not in the CRC’s gift (it is the NPS that makes advice to the court on those programmes), it is the CRC that ends up being financially penalised by the MoJ. This creates a vicious circle whereby the overall fee for service falls, discretionary funds are reduced and the CRC becomes more risk averse about innovating/commissioning new things. 

CRCs are supposed to be rewarded for reducing reoffending through a system of ‘payment by results’ (PbR). However, PbR doesn’t really feature in the CRCs’ day-to-day work as it is simply too far away to drive behaviours. This has led to CRCs chasing the short term fee for service. 

The rate card does not incentivise new services to be commissioned 

There is little evidence of new commissioning, as a result of: 

● The economics – unless the CRC can guarantee a certain volume of referrals, it will not go to the effort of commissioning new services 

● Lack of responsiveness – all CRCs have a standard rate card with a fixed price; there is no mechanism to vary the price and make it more attractive to the purchaser (e.g. a drink and drivers’ programme should cost a tenth of what it costs to deliver a violence reduction programme, yet it costs the same price) 

● Central government control – even when the CRC and NPS have managed to work together in co-commissioning a new discretionary service/product for ex-offenders, they have been unable to progress it to implementation because the MoJ insists on signing off on any new services added to the rate card – a process which has proved to be lengthy and bureaucratic.

Contracts do not incentivise breach enforcement

In addition to the problems identified above, there is some anecdotal evidence to suggest that breaches are less likely to be enforced as a result of TR. It has been suggested to us that the way in which the contracts for CRCs have been designed has created perverse incentives to disengage with an offender if the breach process is triggered. Once an offender breaches their conditions, the MoJ issues a financial penalty on the CRC, as an offender is only eligible for PbR the first time they commence an eligible sentence, meaning that those who breach their sentence are no longer eligible for payment, regardless of the support the CRC may have already provided. 

HM Inspectorate of Probation has found variability in enforcement processes across the CRCs, with some experiencing high rejection rates from the NPS for their breach recommendations. HMIP found that many recommendations were returned because of minor spelling and grammatical errors, and the NAO also identified an “inherent risk that offender managers may avoid ‘breaching’ offenders where this would affect CRC performance against targets for successful completion of orders if the court order is subsequently revoked”. A recent Justice Inspectorate report followed these earlier warnings, and stated “we were disappointed to find, in a third of cases where the individual was breached, insufficient effort was made by the CRC responsible officer to re-engage them and encourage their commitment to continued engagement”.