Anne Owers on Prison Crisis

I note that former HMI Dame Anne Owers has delivered her independent findings on the prison crisis and it's interesting to note her recommendations, especially regarding probation. The problem is, is anyone in the government going to take heed?

Independent Review of Prison Capacity

Introduction

In May 2024, following the announcement of a general election, an official-level COBR1 meeting was convened to discuss contingency plans in case the criminal justice system collapsed during the election campaign because prisons were unable to take in any more prisoners. This could involve invoking emergency powers under the Civil Contingencies Act 2004 to release prisoners early, in order to avert the risk of public disorder. Those meetings and discussions continued throughout the election period. 

The risk was real: at one point there were fewer than 100 places in adult male prisons. However, the system had in fact been in crisis for over eighteen months. From 2023 onwards, prisons were running very close to the edge of capacity. On three occasions, this was only pulled back at the last minute by the use of early release schemes, gradually decreasing the amount of time many prisoners spent in custody, using powers designed to allow release on compassionate grounds. Senior officials were so concerned about a potential breakdown in the criminal justice system that an audit was kept of all decisionmaking and documents, in case there was a public or parliamentary inquiry. 

The system in fact limped through the summer of 2024, helped by the knowledge that relief was coming, in the shape of the new government’s pledge to reduce the custodial element of most standard determinate sentences from 50% to 40% (SDS40). This was a similar measure to the one that had been energetically but unsuccessfully pursued by the Lord Chancellor in the previous government. That government had also proposed to suspend most short prison sentences, alongside other measures, in legislation which fell when the general election was called. The new government commissioned an independent review of sentencing,2 chaired by the former Conservative Lord Chancellor, David Gauke. It reported in May, at a time when prisons were within sight of yet another capacity crisis.

The 2022-24 prison capacity crisis was a conjunction of some specific circumstances. However, it was also a symptom of a systemic and long-running problem: the apparently irresistible pressure for more and longer prison sentences coming up against the immovable object of the difficulty, expense and overall effectiveness of building and running more prisons. In general, population pressure has constrained prisons’ capacity to operate safe, positive and purposeful environments that can reduce the likelihood of reoffending. From time to time that pressure erupts into a crisis that requires executive action, sometimes unnoticed and sometimes public.

In 2007-08, the last Labour government faced a capacity crisis, due to the mismatch between the number of available prison spaces and the demand created by legislation that had increased some minimum sentences and introduced the now abolished imprisonment for public protection (IPP) sentence. The then Lord Chancellor had to introduce an early release scheme, not dissimilar to the 2023-24 schemes, but under different powers, to avoid the system collapsing. 

During the austerity measures in the Coalition government between 2010 and 2015, the Ministry of Justice (MoJ) offered up savings based on the assumption that the prison population would reduce, but did not take any measures to reverse the inbuilt drivers of population increase. Eighteen expensive, mostly smaller, prisons were closed and only two new prisons were opened; overall prison officer numbers were reduced by 27%,4 with a significant loss of experienced staff; maintenance and capital budgets were cut or transferred to plug holes in running costs. By the summer of 2017, there were only around 900 prison spaces left,5 and real risks of a system collapse. This was averted by a series of barely-noticed executive measures, including a 60% increase in the use of home detention curfew6 (the use of electronic tags) and a steep rise in the executive re-release of recalled prisoners.

The 2022-24 capacity crisis, which is the focus of this review, is therefore only the latest among a succession of crises, though it was probably the deepest and longest, described by many of those who lived through it as an 18-month ‘permacrisis’. It affected the prison service at every level, as well as much of the rest of the criminal justice system. As recent events have shown, it is far from over, as recent prison capacity figures show.

Increasingly, during this time, the focus in the MoJ and the prison service, especially at senior level, was on managing the crisis, rather than managing prisons or supporting prisoners. Task forces, boards and committees, across and beyond prisons and the MoJ, were meeting weekly, and at times daily, to document, monitor and try to resolve capacity problems, at the expense of other aspects of prison strategy and policy (see Chapter 3 of this report). Only when this complex ecosystem signalled that the criminal justice system was within seven, and then three, days of collapse was action taken. On each occasion this was just enough to avert breakdown and buy time until the next predictable cliff edge was reached. 

During the crisis, senior officials struggled daily with the effort to keep the system running. This included those running prison escort services, transporting people to and from courts and prisons, as well as those responsible for population management or for working out how to implement the various interacting release and recategorisation schemes. At one point, under what was aptly called Operation Early Dawn, teams of officials worked from 5:30am until late at night to move people to and from prisons, police cells and courts, in a complex series of interrelated moves, many of people with risks and vulnerabilities. The capacity crisis also came with a financial cost. Police cells had to be used, under Operation Safeguard, to house prisoners overnight, or sometimes longer. Each police cell cost the prison service £688 a day, compared with the average daily cost of a prison place at £150: a total bill so far of over £70 million and rising. 

On the ground, the capacity crisis had a direct and damaging impact on those working and living in prisons, and on prisons’ capacity to carry out positive and rehabilitative work. In prisons outside the high security estate, initially most acutely in the north, day-to-day life was dominated by numbers: creating enough space by moving prisoners in and out of prisons and police cells, transferring prisoners from one part of an overheated prison system to another, trying to avoid releases in error while implementing ever-changing and increasingly complex release schemes. And this all dropped into a prison system that was still recovering from earlier severe staffing reductions and had only just emerged from managing the COVID-19 crisis.

Demand for prison places has risen inexorably, checked only temporarily by the COVID-19 outbreak. This has been driven by a number of factors, set out in Chapter 1 of this report. They include greater use of custody, an escalation in the length of sentences for more serious offences, and increases in the proportion of time spent in custody.10 In addition, there has been a significant rise in the number of those recalled to prison, who accounted for nearly a quarter of prison admissions in 2023-24. Nearly one in five prisoners are also remanded or unsentenced, due to the continuing backlog in the criminal courts. Though the number of short-sentenced prisoners has dropped to only 3% of the population at any one time, they account for nearly half of all new receptions into prisons. Proposals for a presumption against short sentences, by this and the previous government, are designed to relieve this pressure.

Governments have responded by focusing on the supply side, with ambitious plans for more and more prison places. However, in practice this has not been a solution (see Chapter 2). Financial pressures and planning constraints, together with the need to ensure appropriate levels of security, have severely limited the ability to create new prison places, or even, in the ambition of a previous Secretary of State, to replace old crumbling prisons with new and more efficient ones. At the same time, prison places were lost, due mainly to closures and critical infrastructure failings, so that total operational capacity fell between 2012 and 2025. But prison capacity is not just about creating enough spaces next month or next year: it is about whether prisons have the capacity and the resources to provide safe environments that can work effectively with prisoners to reduce the chances of reoffending. Moreover, prison capacity crises will keep recurring unless there is sufficient investment outside prison – both in probation and in other community services – to support those being released and to tackle some of the underlying causes of offending. 

In this context, it is important to note that there are groups which have bucked the trend of a steadily rising prison population. Over the last 20 years the number of under-18s in custody has dropped from over 3,000 to around 400. This is seen as a direct result of focusing on a multidisciplinary, community-based preventive and supportive approach, with imprisonment reserved for the most serious offending. That has not just meant disinvesting in prison: it has meant reinvesting in the community services that can prevent offending or reoffending.

The introduction of SDS40 in late 2024, combined with more extended use of home detention curfew, has provided breathing space, but not a solution. By the spring of 2025, prison numbers were once again butting up against capacity, police cells were again being used, and the forums set up to manage capacity were revived. Emergency action to expand the use of fixed-term recalls has been announced, and home detention curfew (‘tagging’) has been further extended. The recommendations of the Independent Sentencing Review aim to cap the projected rise in prison numbers at its highest ever level of around 95,000. That will still be a challenge for the prison service. Meanwhile, early release measures and greater use of community alternatives do not by themselves reduce overall pressure: they displace it from prisons to probation, third sector and community services, which, as this report notes, have their own, less well-publicised, capacity problems. Significant and much-needed additional investment in these services has now been promised. 

This report shows the risks and consequences of the cycle of prison capacity crises, and in particular the highly damaging impact of the acute crisis over the last few years. It also sets out the wider impacts: the opportunity costs at every level, of having to focus on capacity at the expense of more strategic planning, policy development and positive rehabilitative work. It concludes by proposing a change of approach from predicting to preventing crises, both in prisons and probation and community services.

Recommendations 

The Annual Statement on Prison Capacity, first presented to Parliament last December, is a step forward. However, this is a mechanism for reporting and projecting capacity, not a strategy for managing it, and it focuses mainly on prisons. Within five months of its publication, emergency action was needed to avert another capacity crisis. The accompanying ten-year strategy is the latest of many, and again deals only with prison capacity. 

I recommend that there should be a published ten-year strategy for developing capacity within probation and community services. 

Within the MoJ, it is helpful that there is now a separate strategic arm of the capacity options taskforce. However, past history strongly suggests that such strategies may not survive contact with reality, and also that the plethora of internal systems and processes set up in recent years has not been able to ensure timely action across departments and at governmental level.

I recommend that there should be an independent advisory body to provide advice and external validation of the capacity strategies and challenges in both prisons and probation, and in particular the impact of any proposed changes in the criminal justice system.

I note that the Independent Sentencing review, and a number of its witnesses, also recommend the creation of an independent external advisory body. There would need to be consultation on its precise composition and remit, but, like the Sentencing Review, I believe that it should assess the impact on prisons and probation of structural, financial or legislative changes or guidance planned or implemented in any part of the criminal justice system, including funding and organisational implications. It should provide independent advice and commentary on prison and probation capacity strategies and relevant policies. It should draw on the findings of the independent inspectorates of prisons and probation in order to provide a reality check. This process would take these discussions out of the shadows of inter-departmental or intra-governmental tugs of war, and move towards a preventative, rather than a crisis management, approach. The decisions on whether and how to legislate and where to invest resources are rightly political decisions, but this mechanism would provide greater transparency and accountability. 

In the course of this review, some strong views were expressed about the structure and focus of HMPPS. In prisons, this focused on the organisational structure, and the relationship between governors and local and central management structures. In probation, this centred on the need for a more local focus, including partnerships with organisations outside criminal justice. 

Even if the proposals in the Independent Sentencing Review are implemented and have the desired effect, the prison population will still be at its highest ever level, with pressure on the capacity to run safe and rehabilitative regimes. HMI Prisons will continue to report on the outcomes for prisoners in each prison, and those reports clearly show the scale of the challenge for most prisons, in the light of changing risks. However, some of those findings reflect, or are the result of wider organisational and resource issues within the prison service. There is no independent evaluation of the prison service as a whole – its central, regional and local management structures, strategic capability, and staffing, training and resource needs.

I recommend that the HMPPS Board should be mandated to carry out an evaluation of the prison service, in consultation with the Chief Inspector of Prisons. It should also monitor and report on progress against the 10-year prison capacity strategy and the proposed strategy for probation and community capacity. 

The capacity crisis in probation and the shortfalls in the provision of community services are much less visible than in prisons but are equally real and damaging. Given the changes proposed in the Independent Sentencing Review, and accepted by the government, those services will now have to take on much greater responsibility for supervision and support in the community. There is the promise of considerable additional funding over the next four years, but it is not clear how much of this will be in control mechanisms – extended electronic monitoring – and how much in the essential support services, within and outside criminal justice, that can prevent offending and reoffending. Probation, community services and the third sector are not pressure valves that can be turned on or off at will to relieve an overwhelmed prison system: they should be an integral part of leadership, planning and funding. That will require creating and strengthening genuine operational partnerships, not hand-offs, particularly at local level, learning from the failings of the Transforming Rehabilitation process.

I recommend that both the Chief Inspector of Probation and the third sector should be involved in discussing the design, as well as the delivery, of community services. This should include the engagement and resourcing of essential non-criminal justice support such as addiction, health, housing, and employment services. 

There have been tensions between policies and funding in different parts of the criminal justice system, particularly since the MoJ was detached from the Home Office. These tensions, both at national and local level, have at times led to blame-shifting, not problem-solving. More recently, as this review records, there have been examples of constructive operational relationships, developed during the COVID-19 pandemic and capacity crises, which can be built on to tackle underlying causes rather than symptoms. The integrated offender management (IOM) approach, when properly implemented and resourced, brought together local agencies to deal with repeat and persistent offenders.

I recommend that the IOM model should be reinvigorated, properly funded, and rolled out in a consistent way as a model for cross-agency work. 

The terms of reference of this review do not include sentencing, which has been considered by the Independent Sentencing Review, and I refer above to some of its recommendations. That review also referred to the impact of sentence inflation on the size and composition of the prison population, but did not have the time or scope to make specific recommendations. It notes, for example, that the rise in mandatory minimum sentences has created ‘additional and unsustainable pressure’ on prison capacity, as well as the nearly 70% rise in average minimum tariffs for murder. As both of these factors have a continuing impact on prison capacity, I support the Independent Sentencing Review’s proposal that there should be a separate review of the impact and effect of minimum sentences, and that the Law Commission should examine minimum murder tariffs as part of its review of homicide law and sentencing.

Dame Anne Owers

Independent Reviewer

HMPPS Not Fit For Purpose

Here we are again with yet another SFO, exactly as predicted as a direct result of imposing part-privatisation of the Probation Service with TR. Reunification under HMPPS command and control is not the answer because that department is simply not fit for purpose. How long is it going to take before either the present government understands this, or more significantly, the Labour Party understands the Probation Service must be reconfigured as a distinct and separate agency. Todays HMI press release:-

Independent Serious Further Offence review of Jordan McSweeney

Background:

On 14 December 2022, Jordan McSweeney was sentenced to life imprisonment, with a minimum term of 38 years, having pleaded guilty to the murder and sexual assault of Ms Zara Aleena. These offences occurred as Ms Aleena walked home, alone, with McSweeney following her, before he subjected her to a sustained physical and sexual assault. Jordan McSweeney was subject to probation supervision when these offences occurred.

In July 2022, the Lord Chancellor and Secretary of State for Justice asked HM Chief Inspector of Probation Justin Russell to conduct an independent review into this case, as Jordan McSweeney was on probation when he is alleged to have committed these offences. The review was completed in January 2023.

Statement:

Chief Inspector of Probation Justin Russell said: “Jordan McSweeney should have been considered a high risk of serious harm offender. If he had, more urgent action would have been taken to recall him to prison, after he missed his supervision appointments on release from custody. The Probation Service failed to do so, and he was free to commit this most heinous crime on an innocent, young women. Our independent review brings into sharp focus the consequences of these missed opportunities and reveals a Probation Service, in London, under the mounting pressure of heavy workloads and high vacancy rates.

“McSweeney murdered Zara just days after being released from prison. During his sentence, he was considered a violent and threatening man – to other prisoners and to prison staff – and had carried weapons. Known to the criminal justice system, since 2005, McSweeney had been imprisoned many times before, and had displayed violent and racially aggravated behaviour. He also received a restraining order for an offence, against a woman, in 2021.

“All the evidence shows that McSweeney should have been assessed, on release from prison, as high risk of serious harm. Instead, he was incorrectly assessed as being of medium risk because each of the offences, his behaviours in prison, and his criminal history, had been reviewed in isolation. Probation staff involved were also experiencing unmanageable workloads made worse by high staff vacancy rates – something we have increasingly seen in our local inspections of services. Prison and probation services didn’t communicate effectively about McSweeney’s risks, leaving the Probation Service with an incomplete picture of someone who was likely to reoffend.

“Following his release from prison and successive appointments being missed, the Probation Service failed to take prompt action to recall him to custody. Once that decision had been made, there were also delays in signing the necessary paperwork to initiate the recall. Had this been done sooner, opportunities for the police to locate and arrest McSweeney would have been maximised.”

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Highlights from the full report:-

1. Foreword 

On 14 December 2022, Jordan McSweeney was sentenced to life imprisonment, with a minimum term of 38 years, having pleaded guilty to the murder and sexual assault of Ms Zara Aleena. These offences occurred as Ms Aleena walked home, alone, with Mr McSweeney following her, before he subjected her to a sustained physical and sexual assault. This crime has devastated her family and shocked the local community and beyond. 

Jordan McSweeney was subject to probation supervision when these offences occurred. The Probation Service typically conducts a Serious Further Offence (SFO) review when an individual on probation commits a serious violent or sexual offence. However, in this case, the Secretary of State for Justice asked me, as Chief Inspector of Probation, to conduct an independent SFO review into the Probation Service’s management of Jordan McSweeney.

This report sets out the findings of that independent review. My inspectors found that the assessment of the level of risk posed by Jordan McSweeney was inaccurate given information that was known regarding past offending, behaviour in custody and patterns of behaviour. Subsequently this impacted on the way his case was managed and the level of oversight he was subject to. 

Had the correct assessment of risk of harm been undertaken to identify that Jordan McSweeney posed a high risk of serious harm, actions taken in terms of pre-release planning, plans for accommodation on release and speed of response to non-attendance after release could have been significantly different and potentially more urgent. 

Following his most recent sentence, in April 2022, there were significant delays in McSweeney’s case being correctly allocated to a probation officer in the community. This impacted on the time available to update his risk assessment and plan effectively for his release on 17 June 2022. 

Following his release, and successive probation appointments being missed, the Probation Service failed to take prompt action in respect of recalling him to custody. Once that decision was made there were also delays in signing the paperwork to initiate the recall. Had this been undertaken sooner, opportunities for the police to locate and arrest Jordan McSweeney would have been maximised. 

The practice deficits in this case are set against a backdrop of excessive workloads and challenges in respect of staffing vacancies in the London region. I have commented on this in recent local probation inspections and the recommendations made in this report correspond to many of our findings in these. This is far from the first time we have made recommendations relating to the need to improve the assessment and management of the risks of serious harm to the public posed by some people on probation. The need for us to repeat them yet again raises questions as to whether HMPPS is learning the lessons of past mistakes. It is vital that they do so in the future.

Justin Russell 

HM Chief Inspector of Probation 

2. Background to the review 

On 26 June 2022, Ms Zara Aleena had been out socialising with a friend and was walking home in the early hours of Sunday morning in Ilford, Essex, when she was physically attacked and sexually assaulted. CCTV footage showed a white male, identified to be Jordan McSweeney (JM) following Ms Aleena and attacking her from behind. The victim suffered multiple injuries, including serious injuries to her head. She sadly passed away later in hospital. On 14 December 2022, JM was sentenced to life imprisonment with a minimum term of 38 years. 

At the time the offence was committed, JM was supervised by the Probation Service – London region, having been released from custody on 17 June 2022. He had previously received a 16-month custodial sentence on 13 April 2022 for five counts of possession of an offensive weapon, three offences of criminal damage and one racially aggravated public order offence. All the index offences were committed whilst in custody serving a previous 32-month sentence for burglary. 

JM’s arrest for murder constituted a Serious Further Offence (SFO). SFOs are specific violent and sexual offences committed by people who are, or were very recently, under probation supervision at the time of the offence. They are committed by a small proportion of the probation caseload (fewer than 0.5 per cent) 1 however, while this percentage is small, for the victims and families involved, the impact and consequences are devastating and cannot be underestimated. 

An SFO review is triggered when a person is charged and appears in court for a qualifying offence alleged to have been committed while they were under probation supervision or within 28 working days of the supervision period terminating. These reviews are normally internal management reports conducted by the Probation Service itself but, occasionally, the Secretary of State for Justice asks HM Inspectorate of Probation to review a particular case, or aspects of a case, as he did in this instance on 01 July 2022. 

To inform this independent review, HM Inspectorate of Probation has reviewed the quality of the work undertaken by the Barking, Dagenham, and Havering (BDH) probation delivery unit (PDU), within the London Probation region (see annexe 1 for terms of reference). Current probation practice guidance, policy documents and relevant strategies have also been considered at a local, regional, and national level. Given JM had been released from custody 10 days prior to the SFO, practice and policy was also explored in HMP Belmarsh, by colleagues from His Majesty’s Inspectorate of Prisons.

4. Summary of key findings: 

Our Inspectors have found that, overall, there were significant omissions and practice deficits which impacted on the management of this case, outlined in the summary below. 

Risk of serious harm – inaccurate assessments and underestimation of risk 

JM was managed as a “medium risk of serious harm Integrated Offender Management (IOM) acquisitive individual” however his level of risk should have been escalated to “high” in February 2021, based on the range of information available on his past history of violence as well as acquisitive offending. There was information known about risks present in custody, such as possession of weapons, violent and threatening behaviour. In addition, he had carried weapons in the community, as well as the risks posed to known adults. The risk to the public, staff and other prisoners, should have been assessed as high risk of serious harm. The risk of serious harm to known adults should also have been high based on information related to offences against a known female received in 2021, which later resulted in a restraining order being imposed. 

The risk should have been reviewed by the Community Rehabilitation Company (CRC) who were responsible for the case at that time. JM’s persistent poor behaviour in custody was seen in isolation and risk management in the community was not given sufficient consideration. The risk of harm posed was not viewed holistically in this case, with the focus being on acquisitive offending, and a thorough assessment of other presenting risk factors was missing. 

The lack of effective information sharing between prisons and probation contributed to an incomplete picture of JM’s risks and potential for violence and disruptive behaviour. The fact he spent a significant proportion of his adult years in custody made it difficult to gather significant information about his circumstances and potential behaviour in the community. This strengthens the need for effective information sharing to ensure all known risk factors, behaviours and intelligence is gathered to produce effective risk management plans to use both whilst in custody and when in the community. 

Had he been correctly assessed as high risk of serious harm – specifically in respect of other prisoners, staff, known adults and the public – the planning for release, licence conditions, reporting instructions, and action taken when he failed to attend on release could have been significantly different and potentially more urgent (for example following his failure to attend initial probation appointments on 17 and 20 June). He may also have been eligible for joint Multi Agency Public Protection (MAPPA) management, and for consideration for an Approved Premises (AP) placement, which would have afforded more monitoring of his risk in the community as well as opportunities for rehabilitation. 

With the correct risk assessment, it is likely that the level of monitoring through the IOM arrangements would have been enhanced, allowing timely responses to non-compliance but more importantly, contributing towards a release plan appropriate to the risk posed. 

A critical omission in the case was the failure to apply sufficient professional curiosity and management oversight to ensure all available information was analysed to assess the risk posed by Jordan McSweeney. This review identifies that a significant amount of information became known regarding his circumstances confirming that he was in a relationship, had a stepchild and deteriorating family dynamics, particularly regarding his mother. While information was recorded, there was little evidence of this being explored in any detail or informing assessments undertaken by agencies. This led to risk factors being assessed in isolation and not building a picture of the overall risk posed.

The inaccurate classification of risk was a key theme in our recent PDU inspections in London. Of the 137 medium risk of serious harm cases that were inspected across six local probation areas, seven per cent were deemed to have had their risk underestimated and should have been rated as high risk of serious harm rather than medium. Whilst this is only a sample, it does demonstrate the urgent need to ensure risk categorisations are accurate.

Case Allocation 

There were issues highlighted with the allocation of JM’s case. Although JM received 16-months in custody, taking into account his time spent on remand, he only had two months left to serve in prison at the point of his sentence and so his case should have been allocated directly to a community practitioner. The processes for allocating cases when a custodial sentence is imposed is confusing and cumbersome, impacting significantly on pre-release planning. Had allocation taken place correctly and earlier, probation staff would have had more opportunity to consider the risks posed by this individual and to amend the risk of serious harm assessment. As outlined above, this would have allowed for the exploration of other release arrangements and restrictive conditions. 

Enforcement decisions and recall process 

JM had a history of non-compliance. However, during his periods on licence, delayed decision-making by probation staff and ineffective management oversight resulted in non-compliance continuing without relevant action being taken. Following his release on 17 June, there were missed opportunities to recall JM following failed appointments and risk factors emerging. Recall should have been initiated following non-attendance on 20 June 2022, but management consultation did not consider recall and efforts made to locate JM were insufficient. 

When the recall was initiated on 22 June, this occurred following an informal discussion and PO1’s manager SPO1 was not fully included in the process. A delay to signing off the recall until 24 June, outside the 24-hour target specified in the related guidance , meant the recall was not timely and ultimately delayed the opportunity for JM to be arrested by police. 

Data indicates that the public protection casework section (PPCS), who process licence revocations in HMPPS, take an average of seven7 hours to issue a licence revocation. National data on recalls also shows that the median time8 between licence revocation and a return to prison custody is three days. Had a recall been initiated following the missed appointment on 20 June, or completed within the specified timescale on 23 June, the time for police to locate and arrest JM would have been maximised. 

Diverse needs 

Throughout the records relating to JM, differing needs are highlighted. At different junctures records stated JM had Attention Deficit Hyperactivity Disorder (ADHD), Personality Disorder (PD) and had suffered from depression. He was stated to be medicated at various times for ADHD, but little analysis was undertaken of how this affected his day-to-day cognitive functioning and learning styles, and if there were links with offending behaviour.

5. Recommendations 

Between July and October 2022 HM Inspectorate of Probation inspected six PDUs in the London Region. Barking, Dagenham and Havering PDU was one of those inspected, many of the findings from this independent review mirror those from the London PDU inspections9 . They focus on critical concerns such as the quality of work to assess and manage risk of serious harm, the delivery of interventions, information sharing between agencies, quality assurance processes and management oversight, staff training and development, and resourcing and retention of staff. These recommendations are relevant to the practice observed in the case of JM. It is crucial that the service deals with these broader issues to address the practice deficits, and wider systemic issues identified in this independent review.

Notably, some recommendations in this report mirror what has previously been recommended by His Majesty’s Inspectorate of probation, particularly in the independent review of Joseph McCann . It is therefore imperative that these are actioned urgently given they have been highlighted previously as recommendations. 

This independent review makes a further nine recommendations specific to the case of JM.

HMPPS should: 

1. conduct a thorough, senior led review of the processes its staff use to assess the risks of harm that people on probation may pose to others, to ensure that all staff understand and apply the correct criteria for identifying high risk of serious harm cases and that this then informs robust and appropriate risk management plans and regular reviews. This action should be conducted urgently 

2. implement effective arrangements to ensure all risk of harm assessments, including at pre-sentence stage, are quality assured for accuracy until regular and appropriate management oversight arrangements are established, given the national staffing resource shortage and middle management oversight limitations 

3. develop processes to ensure all known information on past behaviour or current risks in prison or the community is available to probation practitioners and is properly analysed when formulating risk assessments pre and post sentence 

4. create robust processes to record and analyse on probation case files when a person on probation is acquitted of offence(s) and where information remains relevant to inform risk of harm assessment and management 

5. while cases are in custody ensure timely and accurate allocation of each case to probation practitioners in the community for supervision before and after release and a mechanism for checking this process 

6. undertake an urgent review of processes for information and intelligence sharing between prisons and the probation service to be completed by June 2023. (A recommendation from the independent review of McCann, this should be given urgent attention given issues are still apparent). 

7. develop processes to ensure that all recall decisions are signed off and submitted by Senior Probation Officers within the 24-hour target period – with compliance against this target monitored in every Probation Delivery Unit on at least a monthly basis 

8. ensure that data on the time from licence revocation by HMPPS Public Protection Casework Section to an individual being received into prison custody is monitored on a regular basis by HMPPS jointly with the National Police Chiefs Council (NPCC) and that joint probation and police plans are agreed for maximising performance against this metric 

9. ensure the EPF2 tool is used when determining licence conditions and develop a mechanism for effective management oversight of this process to ensure that all appropriate licence conditions, including GPS tagging, are applied after release 

10. develop a London wide initiative on neurodiversity and invest in trauma informed training for staff.

14. ‘Early Look’ and onward actions 

Following JM’s arrest for murder, an ‘early look’ SFO review was completed by the Probation Service – London region in June 2022 in line with HMPPS expected practice. The purpose of an ‘early look’ is to quickly review the practice in the case and promptly identify, to senior leaders within HMPPS, any practice and training deficits that require immediate attention and to begin appropriate actions, and human resource (HR) processes if assessed as being necessary. Inspectors found the quality of the ‘early look’ to be mostly of a sufficient standard. However, on further exploration, some information contained within it, and therefore subsequent actions, were inaccurate. This related specifically to the following: 

The assessment undertaken at Court as part of the allocation process was inaccurate as it pulled through information from historic assessments that required updating. Whilst PO2 was limited by the fact that he did not have the opportunity to meet with JM, the offence analysis did not relate to the index offences and I would have expected this to have been updated.

Having spoken with PO2 and the line manager, and considered the guidance in place, PO2 was required to undertake an “RSR only” OASys which does not require a full review. The process requires an OASys assessment to be generated solely for this calculation, to determine allocation. There is no expectation of court officers to undertake a review of risk. We found that although the correct process was followed here, the process led to inaccurate information being contained within assessments but in line with guidance, should have been updated by the receiving COM or POM. 

The ‘early look’ also indicated that the inclusion of a licence condition to engage with Catch 22 was not appropriate as their remit was to support people to build emotional resilience. We disagreed with this, as it was clear this would be of benefit to JM. However, we did agree other conditions were omitted which would have been beneficial to risk management, such as the imposition of a curfew/GPS tagging. 

When considering the recall prior to the SFO, the ‘early look’ states SPO1 was included in the discussion on 22 June, however on further investigation we know this did not occur, with them only being informed by PO1 a recall was being completed. Actions relating to management oversight and recall processes which were highlighted in the ‘early look’ have already been progressed. 

Following this, HR investigations procedures were initiated in respect of two staff members. These have now concluded, with no further action taken in either case. 

In respect of other areas which have been highlighted as significant in this review, we discussed work that is underway to address some of the deficits. We were told there are significant changes being made to IOM case management in London, in particular work is underway to improve liaison between prisons and IOM colleagues. With regards to neurodiversity, the Head of Operations for north east London boroughs (HOOP) told us there are aims to embed a trauma-informed approach to practice, and projects are already set up in some areas of London focussing on specific needs particularly in respect of young adults.

Although not eligible for OMiC management, the effectiveness of this process is under review by HM Inspectorate of probation with a number of recommendations to review the process which aim for improvements across the OMiC spectrum .

15. Conclusion 

Inspectors found that overall, there were significant omissions and practice deficits which impacted on the management of this case. 

JM was managed as a “medium risk of serious harm IOM acquisitive individual,” however, his level of risk should have been escalated to high risk of serious harm in February 2021, based on the range of information available had it have been sufficiently analysed and considered.

The risks present when he was recalled, in February 2021, were not sufficiently considered for a potential escalation to high risk of serious harm and management by the then National Probation Service. When a restraining order (RO) was imposed in 2021, the PDU were not sufficiently aware which was another missed opportunity to reassess the risk posed. Furthermore, JM’s persistent poor behaviour in custody was seen in isolation and not given sufficient consideration in terms of his risk management in the community. 

Issues were found with sharing of information between prison and probation and assessments were completed in isolation. This led to agencies managing the individual without thorough consideration of the impact on the risks posed, and how they should be managed, both in a custodial and community setting. 

A lack of professional curiosity coupled with a failure to consider information known about JM holistically, led to inaccurate and insufficient risk assessments. There was a significant amount of information known about JM which should have been analysed and explored more fully.

The delay in JM’s case being allocated to a probation officer meant his case was not formally allocated for two months following sentencing. Positively, PO1 continued to work with JM and did undertake some pre-release planning. However, given the delay in allocation, a pre-release assessment was not completed prior to release. This was a missed opportunity to review all the available information and inform pre-release planning and the risk of serious harm assessment. Tools such as the EPF tool which was developed by the probation service to determine relevant licence conditions was not utilised and therefore not all relevant conditions were included. 

On release, the PDU missed opportunities to recall following failed appointments and evidence of risk factors emerging, such as significant use of alcohol. A recall should have been initiated following the missed appointment on 20 June 2022. However, relevant senior leader consultations did not take place, and insufficient efforts were made to locate JM. When the recall was initiated, this was because of an informal discussion and PO1’s line manager was not included formally in the process. A delay to signing off the recall, 24 hours later than the specified timescale, meant the recall was not timely and ultimately delayed the opportunity for JM to be arrested by police. 

The findings from this review mirror findings from the recent HM Inspectorate of probation inspections of London PDUs, including Barking, Dagenham and Havering (BDH) PDU where the overall quality of work delivered to manage people on probation was insufficient and we rated the PDU as ‘Requires improvement’.

Grand Plans

What with morale being so low and us all distracted and worn down by Covid concerns, I guess we should have been paying a bit more attention to the government's sentencing White Paper published last September. We covered Napo's initial response here we raised an eyebrow at the aim for a world class service here and other cliche's here, but maybe a close look at the whole probation chapter would be wise:- 

A Smarter Approach to Sentencing

Strengthening the way that offenders are supervised in the community requires a stronger, world-class probation service – one that keeps the public safe through effective community sentences which combine punishment with tailored programmes and treatment requirements to address specific criminogenic needs. With the support of skilled practitioners, a successful period of probation supervision can challenge and motivate offenders to address the causes of their offending. Through our reform programme, our aim is for probation practitioners to have the time, support and tools to develop productive relationships with those they supervise, to deliver interventions directly, and to place offenders with other rehabilitative services.

3. Empowering Probation 

Chapter Summary 

The probation service has for too long operated in the shadows and with the work of its dedicated professionals not sufficiently valued or understood. We want this to change. Probation services deliver more than merely the supervision of offenders. With the support of skilled practitioners, a successful period of probation supervision will see offenders challenged and motivated to address the causes of their offending: supported to find stable accommodation and employment, and to make a sustained move away from relationships, associations or addictions that will lead to reoffending. 

Effective supervision is at the heart of our plans to improve probation services. We want probation practitioners to have the time, support and tools to develop effective relationships with those they supervise, to deliver effective interventions directly, and to place offenders with other rehabilitative services. We will do this through investment and reforms to the way that probation services are delivered, alongside improvements to the powers available to probation practitioners. 

Partnership working: We want to ensure that there is improved strategic delivery and local partnership working. A refreshed joint policing and probation strategy for IOM will be published by the end of 2020. 

Improving the service to victims and the wider community: Community sentences should also be seen to be served in the community and should be actively benefiting the community within which they are being served. We want to make sure that, in particular, there is a greater community voice in determining how Unpaid Work schemes should be focussed to bring about the most benefit. 

Increasing the powers of probation practitioners: We plan to consider the strong arguments for varying the responsibilities and powers available to probation practitioners to enable them to act swiftly and responsively on their professional judgement, to make sure we have a strong and responsive probation service that is delivering reductions in reoffending. 

Introduction

189  Strengthening the way that offenders are supervised in the community requires a stronger, world-class probation service – one that keeps the public safe through the effective supervision of offenders in the community, by delivering programmes and other interventions to address criminogenic needs, and by bringing together a wide range of statutory agencies and private and voluntary organisations to provide rehabilitation and support. 

190  In strengthening probation we want to ensure that services are effective and give confidence to judges, magistrates and the public, and that are structured in a way that supports local partnership working and is responsive to the needs of local areas.

Unifying probation supervision 

191  In May 2019, we announced that when Community Rehabilitation Company (CRC) contracts came to an end, all sentence management responsibilities for low-, medium-, and high-risk offenders would be held by the National Probation Service (NPS). This means that from June 2021, the NPS will be responsible for the effective delivery of community sentences, licences and other forms of post-sentence management by ensuring offenders are properly supervised, requirements are coordinated and delivered, risks are managed and enforcement action taken after any breach, including recall to custody. This will sit alongside and complement the existing NPS responsibility for providing advice to courts ahead of sentencing on the most suitable type of sentence for the offender. NPS Wales unified their offender management services in December 2019, and the learning from that process is helping to shape the future design for England. In March 2020 we published a detailed vision for the probation structures in the Draft Target Operating Model for the Future of Probation Services. 

192  In June 2020 we announced changes in this model in response to the experience of COVID-19. Under our revised approach to probation reform, Unpaid Work, Accredited Programmes and Structured Interventions will no longer be contracted out but will instead be delivered by the NPS directly. We consider that bringing these services into the NPS in addition to sentence management will put us in the best possible position to respond to any further disruption caused by COVID-19 and enable a smoother recovery out of exceptional delivery arrangements we have had to put in place. Advice to court will continue to be a core duty of the NPS with increased focus on quality of assessment and pre-sentence reports. The NPS will build on the existing enhanced through the gate services with a new resettlement model which improves links with prisons, enhances pre-release planning by probation practitioners and provides increased focus on short term sentences. 

193  The revised model puts us in the best place to be able to deliver these ambitions. It will facilitate more strategic and integrated probation supervision through fostering close collaboration with strategic partners including local courts and Police and Crime Commissioners.

194  Our approach for all services for Day 1 of the new model will be to move existing CRC staff and delivery models into the NPS with minimal disruption with ongoing work thereafter to embed and improve service delivery. The transition to a level of service as envisaged by the Draft Target Operating Model for probation is likely to take time given the backlogs to Unpaid Work and Accredited Programmes created by exceptional delivery arrangements as well as a likely spike in court orders once jury trials resume. This would be the case regardless of which organisation delivery sat with, but we consider that bringing this work in-house gives us greater flexibility to deal with this. 

Structural and organisational changes to probation 

The National Probation Service (NPS) will be responsible for managing all offenders on a community order or licence following their release from prison in England and Wales. 

The NPS will continue to deliver those services reserved to the public sector such as advice to court. From June 2021, the NPS will also deliver offenders’ Unpaid Work and behavioural change programmes in England and Wales. 

The voluntary and private sectors will play an enhanced role in the probation system, running services such as education, employment, and accommodation commissioned through the Probation Services Dynamic Framework. 

There will be 12 probation areas across England and Wales, introducing 11 new probation areas in England, with existing arrangements remaining unchanged in Wales. 

In England, each area will be overseen by a new dedicated regional director who will provide strategic leadership and be responsible for the overall delivery and commissioning of probation services. 

The regional directors, along with the NPS Director in Wales, will work closely to ensure an effective, unified approach from the pre-sentence stage in court through to supervision in the community. 

We will take action to strengthen the standing of the probation workforce and also make changes that support continuous professional development. 

Benefits of the future model for probation 

195  In developing the future model for probation, we want to ensure that services are effective and provided in a way that judges, magistrates and the public have confidence in, and are structured in a way that supports local partnership working and is responsive to the needs of local areas. 

196  Unifying sentence management under the NPS should have a positive impact on the judiciary’s faith in probation’s ability to deliver, as we know sentencers have expressed greater confidence in the NPS, with whom they have a more direct relationship than CRCs. There will be a single organisation responsible for providing advice to court and delivering the sentence, and we anticipate that this will result in benefits in the preparation of pre-sentence reports (PSRs). 

197  Additionally, it will mean greater central control over the quality of services and enable greater clarity around minimum standards. It will also mean that there will be one probation voice in local partnership arrangements. 

198  The creation of a Dynamic Framework for resettlement and rehabilitative interventions will enable more local commissioning and support the direct participation of smaller voluntary sector and specialist organisations in the delivery of these interventions, something that has not been consistently achieved under the current model. This will help services to be more locally responsive and provide more ready access to services that better address individual needs, particularly vulnerable offenders and those with complex needs. 

Partnership working 

199  Across the system, we want to ensure that there is improved strategic delivery and local partnership working. In creating 11 new probation regions across England, alongside the existing area in Wales, we have sought to achieve the right balance between the potential for efficiencies across the probation system and arrangements that are closer to other criminal justice system structures and which can facilitate partnership working.

200  In England, each of the NPS divisions will be overseen by a Regional Probation Director who will provide strategic leadership and be responsible for the overall delivery and commissioning of probation services. In Wales, the Executive Director for HMPPS already has responsibility for all probation services and prisons, and this will remain unchanged. These leaders will have clear responsibility for strengthening engagement in local and regional partnerships. 

201  This will ensure there is greater transparency around probation performance, that services are responsive to local priorities, and opportunities are taken to co-commission those services that are key to reducing reoffending with partners such as Police and Crime Commissioners (PCCs), local authorities and health commissioners. 

202  We want to support probation providers to work with local partners to develop innovative services that respond to offenders’ needs. There are already schemes in some areas, and in future we would like to see arrangements develop in other areas. The plans set out in our response to the probation consultation for Regional Directors to have funding reserved for innovative, cross-cutting approaches, will support this.

203  We also want to re-focus how law enforcement partners work together to supervise offenders in the community, through strategic arrangements such as Integrated Offender Management (IOM). IOM enables the police and probation to jointly provide an enhanced supervision of priority offenders identified in local areas in line with the government’s crime reduction and reducing reoffending plans. We will publish a refreshed joint policing and probation strategy for IOM by the end of 2020. 

204  Community sentences should also be seen to be served in the community and should be actively benefiting the community within which they are being served. We want to make sure that, in particular, there is a greater community voice in determining how Unpaid Work schemes should be focussed to bring about the most benefit. This is why we are introducing a statutory duty for probation to consult a range of voices when designing and delivering Unpaid Work placements and schemes. Further detail on the design of Unpaid Work under the new model for probation is available in the ‘Supervising Offenders in the Community’ chapter of this paper. 

Probation Workforce Programme 

205  In January 2020, the Probation Workforce Programme was launched to ensure the wider changes happening in probation go hand-in-hand with positive changes for our workforce. Our staff are integral to the successful operation of the NPS model, and we need to ensure we have a motivated and professional workforce that can deliver for the probation service.

206  The Workforce Programme will seek to address the significant shortfall of trained probation officers in the system by focusing on four key workstreams: capacity and efficiency, capability, pay rewards and policies, and infrastructure. This will ultimately ensure that we have the right number of people with the right capabilities and appropriate support to deliver a strong and effective service both now and in the future. The workforce strategy was launched in July 2020 and we have already started recruiting new probation staff. This strategy set out our commitment to increase recruitment of probation staff this year and have a minimum of 1000 new probation practitioners in training by January 2021. Our ambition is to make sure probation officers have manageable and varied caseloads and are encouraged specialisms. As part of this work, we will explore options to improve the professionalisation of the probation officer and probation support officer role. 

Trusting probation staff to take action 

207  We want to make sure that probation practitioners have the necessary powers to be able to properly supervise offenders in the community, in particular, that they are able to act quickly and responsively to behaviour that needs to be addressed without necessarily needing to return to the courts. 

208  A core function of the probation service is to supervise offenders in the community. That is, to require an offender to attend an appointment so the probation practitioner responsible for their sentence can identify existing or emerging needs and risks, and either provide interventions directly or refer them to other organisations. For offenders released from custody, this kind of supervision is built into the duration of their licence. 

209  In contrast, not all Community Orders or Suspended Sentence Orders provide for this general supervision power for the length of the order. Unless an Order contains a Rehabilitation Activity Requirement (RAR), legislation as currently framed explicitly provides for supervision only in connection with the requirements imposed by the order. While offenders are under a general duty to keep in touch with their Responsible Officer in accordance with such instructions they may be given from time to time, the legislation does not clarify what ‘keeping in touch’ means and if it includes attending probation supervision appointments. 

210  In practice, this means that a probation practitioner who may wish to supervise offenders who have completed all of their requirements (but whose Order has not expired), do not currently have legislative cover to do so unless the Order contains a RAR. Also, practitioners who may wish to supervise offenders for reasons unconnected to the requirements of the Order do not currently have legislative cover to do so. 

211  We believe there is an important role for the Court in setting out the requirement(s) an offender should undertake as part of their community order at the point of sentencing. And the priority of the probation service must always be to support the purpose of the Order and the administration of justice. However, we also believe there is merit in probation staff having sufficient flexibility within their prescribed duties and responsibilities to respond to the unique journey of each offender as they progress through their sentence. Supervision unconnected to requirements, carried out after the completion of requirements, may be warranted for two reasons. First, the Responsible Officer may feel that supervision is necessary to address issues that either arise post-sentencing and are not strictly related to the original requirements, or after requirements are complete and remain outstanding. Second, the Responsible Officer may also feel supervision is necessary if there is reason to believe that the offender’s level of risk to the public has increased. 

212  We will therefore legislate to give probation practitioners greater flexibility to take appropriate action where they have concerns about an offender’s rehabilitative needs or risk to the public. In practice, this would empower Responsible Officers to compel offenders to attend supervision appointments and, where appropriate, participate in rehabilitative activities for the length of a Community Order or Suspended Sentence (either through supervision sessions or onwards referral to other organisations). 

213  Alongside this change, we plan to consider the arguments for varying the responsibilities and powers available to probation practitioners to enable them to act swiftly and responsively on their professional judgement. We want to take the opportunity provided by the Probation Reform programme to bring about greater change. 

214  It is currently possible for courts to bring community sentences to a conclusion before the original end date if the individual has sufficiently fulfilled the order’s requirements. Where offenders breach their order, there is a process where Responsible Officers can give warnings before taking enforcement proposals to court. 

215  We recognise that swift breach action where individuals fail to comply with a requirement of the court’s order is central in securing public confidence in community sentences, as well as having the potential to further influence and change offender behaviour. Effective use of community sentences relies on the relationship between the probation practitioner and the offender; we therefore need to ensure that probation has the right mechanisms, tools and powers to support and enhance this relationship. 

216  Other jurisdictions will mark progress made by offenders with events recognising the positive changes they have made. In England and Wales, we have seen examples of offender achievements being recognised with letters or certificates. For individuals who have experienced difficult relationships with the state, for example through the education system or the care system, it may be the first time anyone in authority has ever acknowledged progress. 

217  In view of this, as well as the potential to harness the improvements to the probation service brought about by reform, we will further explore the options and their implications. There is a spectrum through which we could consider giving probation practitioners a range of more immediate options before taking an order back to court: 

• ‘Administrative’ variation of existing requirements to respond to an offender’s changes in circumstances. We are pursuing this policy via the powers to vary timings of curfews, outlined in this paper. 

• Flexible enforcement of court-imposed requirements, that would allow the Responsible Officer to adjust and vary these requirements to encourage and influence changes in offender behaviour. Under this model, we would consider whether the sentencer (at sentencing) should specify the minimum and maximum number of hours to be completed at the discretion of the offender manager.

• Imposition of new requirements for non-compliance/breach. 

218  Options under this spectrum could mark a distinct change in the way in which probation supervise offenders in the community. We believe that enhanced powers could afford probation staff greater flexibility to respond to offenders’ needs in a way that reflects their professionalism and expertise. 

219  However, within this policy, it is vital that the flexibility afforded to probation is consistent with the court’s original sentence. Due to the importance of the relationship between the courts and probation, we will explore these options with relevant key stakeholders to decide on the most appropriate and effective powers to potentially introduce. 

Conclusion 

220  In order for community supervision to work effectively, it needs to be accompanied by a robust probation service, to fulfil the key aims of protecting the public while also providing support for offenders who wish to turn their lives around. 

221  This chapter has reiterated plans for the National Probation Service. By strengthening probation in this way, we want to ensure that services are effective for those who require them and give the public confidence in the system.

Cliche Irony

Remaining on the theme of sentencing and politics, I guess we need to note the irony of the Centre for Justice Innovation publishing its Smarter Community Sentences report last week calling for an end to cliches, just before Boris Johnson indulged in classic cliche gesture politics of tougher sentencing. Politicians have learnt that it's a popular card well worth playing especially if you're not very popular. This from the Law Society Gazette:-

Thinktank backs smarter community sentences to cut reoffending

The government has been urged to move away from the old clichés of tough and soft justice and focus more on making community sentences ahead of a sentencing white paper due to be published shortly.

The Centre for Justice Innovation says in its latest report that evidence clearly shows community sentences reduce re-offending more than short custodial sentences. However, there has been a 46% decline in their use over the past 10 years in England and Wales. Those advocating for short custodial sentences as opposed to community ones ‘are, in short, recommending that communities and victims suffer more from crime, not less’.

The centre believes the forthcoming white paper and ongoing work to reform the probation system provide the government with real opportunities to reform community sentencing, and highlights successul initiatives in other jurisdictions.

Describing unpaid work as the ‘backbone’ of community sentences, the report cites 2016 inspectorate findings that 35% of probationers had not started their unpaid work within two weeks of being sentenced. The centre says reforms in Scotland to unpaid work within their Community Payback Orders have focused on improving the speed with which placements are commenced and completed. The report recommends ‘short, swift’ unpaid work orders and empowering courts to set time limits.

The ministry and probation service should shorten the overall length of community sentences given to low-risk offenders. This would free up time for probation staff to concentrate on supervising higher-risk groups. The report says the ministry could learn lessons from Northern Ireland’s Enhanced Combination Order, which includes psychological assessments in respect of mental health issues and family support work. The offending rate of ECO participants in the six months following sentence was 17.3% compared to a 57.7% re-offending rate in the six months prior to sentencing.

Probation officers should be given powers over electronic tag monitoring, including the ability to vary hours. The report says in the Netherlands, the private sector provides monitoring equipment but public sector agencies are responsible for installation, maintenance and decision-making.

A smarter approach to tagging would enable victims to have a say on restrictions. In the US, GPS tagging technology has been used to give domestic violence victims more control over their own safety.

The centre, which has supported the expansion of family drug and alcohol courts, also suggests the government implement a problem-solving suspended sentence for those with substance misuse issues as an alternative to longer prison sentences. It says Scotland, Northern Ireland, Australia, Canada, New Zealand and the US actively involve the courts in efforts to strengthen the accountability of community sentences.

Under the new suspended sentence, probationers would be required to comply with a 'demanding' order of treatment, supervision, monitoring and reparation. The same judge would regularly review progress. Non-compliance would result in prison.

The report concludes: 'We believe it is time to reform community sentences. In doing so, we need to move away from the clichés of the past about tough or soft justice.'

--oo00oo--

We believe it is time to reform community sentences. In doing so, we need to move away from the clichés of the past about tough or soft justice. Instead, the unification of the management of offenders within the National Probation Service and the forthcoming Sentencing White Paper are real opportunities for this Government to make community sentencing smarter.

Smarter community sentences mean giving probation practitioners the powers, the freedom and the flexibility to do their jobs. Smarter community sentences mean ensuring victims and communities who suffer from crime have more of a voice to see reparation done. Smarter community sentences mean leveraging the full resources of the Government, from the police, the courts, through to drug treatment and employment services and others to work with probation to deliver punishment and to give offenders the chance to turn around their lives.

Summary 

Effective community sentences are a vital part of a justice system in which crime is proportionately punished, the harms it has caused repaired and the underlying factors that lead to offending addressed. Moreover, the evidence is clear that community sentences reduce re-offending more than short custodial sentences. Those who advocate for offenders to receive short custodial sentences as opposed to community sentences are, in short, recommending that communities and victims suffer from more crime, not less. 

Yet, there has been an 46% decline in the use of community sentences over the past ten years in England and Wales. At the same time, the quality of supervision delivered by our probation services has deteriorated. We believe it is time to reform community sentences. In doing so, we need to move away from the clichés of the past about tough or soft justice. Instead, the unification of the management of offenders within the National Probation Service and the forthcoming Sentencing White Paper are real opportunities for this Government to make community sentencing smarter. 

Smarter community sentences mean giving probation practitioners the powers, the freedom and the flexibility to do their jobs. Smarter community sentences mean ensuring victims and communities who suffer from crime have more of a voice to see reparation done. Smarter community sentences mean leveraging the full resources of the Government, from the police, the courts, through to drug treatment and employment services and others to work with probation to deliver punishment and to give offenders the chance to turn around their lives. 

Specifically, we urge the Government to create smarter community sentences by: 

• Improving the delivery of unpaid work by giving victims and communities a stronger voice in choosing what work is completed so they can see that justice is done, and by delivering standalone unpaid work orders swiftly, so probationers get the punishment done and can move on with their lives, and so judges can see their rulings carried out. 

• Improving the delivery of supervision by working briskly with low-risk probationers, thereby freeing up probation to both deliver high-quality community sentences and to work with police in the management of probationers who pose a higher risk of re-offending, through a reinvigorated Integrated Offender Management (IOM) strategy. 

• Improving rehabilitation so that people have the best shot at turning their lives around, by increasing the overall level of funding available for drug and mental health treatment for probationers in the community in the next Spending Review. 

• Improving information to victims about community sentences via the court reform programme so victims are informed about what is being done in their case. 

• Improving tagging of probationers by giving probation officers powers to flexibly vary the monitoring of tags without having to go back to court and by giving victims of domestic abuse a voice in setting the restrictions on perpetrators to better guarantee their safety and the safety of their children. 

• Improving collaboration between the court and probation to divert vulnerable offenders away from court where necessary, to use judges to monitor repeat offenders and be more responsive to their behaviour, and to change the enforcement system so it responds more swiftly to failure and better rewards compliance.

The value of community sentences 

Criminal justice systems around the world use community sentences to deliver punishment, reparation and rehabilitation. Punishment - inflicting some form of pain or loss (‘harsh treatment’) and the communication of disapproval (‘censure’), because doing so gives voice to the standards we honour as a community. Reparation to ensure that victims and communities that suffer see and experience offenders’ atonement for their wrongs. Rehabilitation because it embodies our belief in the possibility of redemption for rule-breakers and our commitment to keep communities safer by reducing reoffending. 

Community sentences play a vital role in keeping the public safe. There is considerable evidence that community sentences are an effective means of reducing re-offending. Previous studies by the Ministry of Justice in England and Wales, which control for the differences in the offender characteristics of those on community sentences and those receiving short prison sentences (those that are less than 12 months), show that the proven reoffending rate of offenders on community sentences is consistently lower than for those who had served short-term prison sentences. A 2019 study found that “sentencing offenders to short term custody with supervision on release was associated with higher proven reoffending than if they had instead received community orders and/or suspended sentence orders.” It also found that “the average number of re-offences per sentencing occasion was also higher following short term custodial sentences of less than 12 months than if a court order had instead been given (by around 65 re-offences more per 100 sentencing occasions).” Those who advocate for offenders to receive short custodial sentences as opposed to community sentences are, in short, recommending that communities and victims suffer from more crime, not less. 

The deterioration of community sentences 

However, in England and Wales, the quality of the supervision of community sentences has deteriorated over the past decade. In 2018, the Chief Inspector of Probation found that, due to the Coalition Government’s Transforming Rehabilitation reforms, which split probation provision into a public-sector National Probation Service (NPS) and privately-owned Community Rehabilitation Companies (CRCs), probation services “are failing to meet some of their performance targets… In too many cases, there is not enough purposeful activity… the probation profession has been diminished… There is a national shortage of qualified probation professionals, and too much reliance on unqualified or agency staff…. in the day-to-day work of probation professionals, there has been a drift away from practice informed by evidence.” 

Moreover, there are fewer community sentences being given out by courts. There has been a 46% decrease in the number of community sentences in England and Wales over the past ten years. Our research into why this has found that it is, in part, because the relationship between courts and probation has been buffeted by a number of reforms in the past six years, most notably the split of probation, the underinvestment in probation by the CRCs, and the disruptions caused by court closures and court service efficiency reforms. 

The reality of community sentences Community sentences provide proportionate punishment for lower level offending through restrictions of liberty like curfews and electronic monitoring. They can provide reparation through things like unpaid work and restorative justice. They can also address the underlying issues behind offending, like drug addiction, through supervised community drug treatment. Yet these purposes of punishment, reparation and rehabilitation are not clean and separable: in practice, community sentences are a mixture of all three. Probationers can often feel that parts of community sentences that are intended to be rehabilitative are intrusive, even painful, while others experience ‘punitive’ sanctions such as unpaid work as motivating and even enjoyable. It is also worth remembering, for example, that individuals serving a community sentence can experience additional pains, such as restrictions on their ability to travel abroad, or the impact on their lives of a criminal record on their employment. These punishments, which often get forgotten in discussions about “the toughness” of community sentences, can often be experienced as far greater hardships than the terms of the court order itself. 

This means that the reality of community sentences as experienced by probationers is often different from what is intended by judges and lawmakers, and what is expected and imagined by the public. Moreover, probationers are not a homogenous group: community sentences are given to a wide spectrum of individuals, from affluent motorists who repeatedly speed to homeless people with complex substance abuse and mental health needs. Strengthening community sentences, therefore, requires us to grapple with the complex realities of how probation functions in practice.