Pick of the Week 52

I don't think we can afford to be too purist about professional judgement. Sure, it's important that probation officers are not mere automatons, but sometimes the problems in the system need social fixes and policy changes that are beyond the individual officers, however well-intentioned. There is evidence of institutional racism in sentencing: Asians and blacks whose rate of imprisonment is 20% greater than their white counterparts. There is also decades-old evidence of a postcode lottery in sentencing practices across the country. Given a choice, a black offender would have a better chance of a non-custodial if sentenced by a bias-free robot rather than a free-thinking, unbounded professional. The independent, wise professional is a myth anyway, as the criminal justice system has never been a bias-free zone, as social psychology is replete with examples of non-legal variables impacting on sentencing.

*****
I think that's a point very well made. Sometimes professional judgement is bound by professional judgements made by others from other agencies with different agendas, but once the direction of travel is set in motion then professional judgement becomes tied within particular parameters. This case reported today interests me a lot. A judgement has been made that directs a person into the CJS. I personally feel that is the wrong approach, and a direction towards mental health services would have been more suitable. The professional judgements made on this person from those he meets in the CJS, are likely to be quite different from those he would have met in mental health services. I find the case upsetting.

*****
Anybody that's likely to breach the terms of a suspended sentence is to my mind just as likely to breach the terms of a community order. I wonder how much of removing suspended sentences from the sentencing options is about reducing the prison population, and how much of it is about increasing the 'supply chain' for CRCs? Whatever it is, people are now being sentenced on the basis of systematic government failings and not on the basis of the most suitable or appropriate sentence available. I'm actually pretty impressed too that probation officers can sit with judges and agree to remove sentencing options. They've obviously got more clout then I've gave them credit for!!

*****
There Is something fishy about all this Suspended Sentence stuff. Seems as if probation rolled over to appease magistrates. They can’t really be saying that probation are proposing Suspended Sentences illegally AND the Courts are therefore imposing them illegally? I think the issue is that probation are proposing Suspended Sentences appropriately. Magistrates do not like feeling obliged to invoke the custody if the sentence is breached because they’re then blamed for prison overcrowding. If they don’t invoke the custody and the person reoffends then the Magistrates are blamed for being soft. Probation should have instead been telling Magistrates if they don’t like our proposals then don’t request a PSR. This is what happens when we have directors whipped by prisons and politicians.

*****
I don't bother with an alarm clock these days, I just get up when the pinging of notifications of emails from recruiting agencies looking for POs flatlines into a whine.

*****
Seems like the agency has been told to vet the competence of their agency staff. I'm sure it's not their idea.

*****
What a load of shite. An agency delivering OASys training.

*****
Probably ex-probation senior managers who, having been the privileged few who voted themselves eligible for EVR, are now casually pocketing more public funds as sessional trainers for RSG. Wonder if they'll come face-to-face with those they shafted into unemployment? Might be worth going just to witness the fighting...

*****
Rory Stewart gave a peculiar contribution to the last TR Justice Select Committee, in which he said in effect that the CRCs were victims of their own success, (it was convoluted, but that was the argument) and then went on to say that, yeah, TR hadn't been a success, it was all a bit of a mess, but it had been such a traumatic and expensive upheaval that it would not be a good idea to do much in the way of major re-upheaval.

“I am in blood stepped in so far that should I wade no more, Returning were as tedious as go o’er,” (Scottish play)

What Rory and the whole sorry bunch at the top end of probation fail to grasp (they never did) is the scale of energy and talent that would be released if they pulled the plug on TR, tore up the contracts and got to fixing probation. What they fail to grasp, (they never did) is that there is a huge well of expertise and knowledge to draw on. All they have to do is demonstrate they have the bottle to do it

"But screw your courage to the sticking-place, And we’ll not fail" also from the Scottish play.

*****
Boiling frog syndrome. Spot on. I am leaving as soon as I can. I will mourn, but then the bereavement process started in 2014.

*****
Advice from one boiling frog to another: leave before you croak. Heavens, temping used to be the poor relation of stable permanent posts, insecure and unsupported: not the safer healthier option.

*****
I am a great professional, highly qualified and experienced, dedicated and hard working. However, give me 90 mile an hour work to do, with no time to take a break, heavily targeted and electronically whipped then I will fail or leave or both. I left.

*****
Probation has a high sickness and mortality rate. NPS and CRC, both drive you into the ground with overwhelming work, targets, managerial abuse, toxic and dirty work environments, and a general lack of care for staff. And the moment you’re long term sick or dead they’ll replace you within 3 days. No matter how good or bad a Probation Officer you think you are, whether a sheep, complainer, rebel or brown-noser, what you really are to probation management is expendable, replaceable and easily forgotten. So remember this next time you’re asked or compelled to do more than you should and learn to say no. There are many jobs better than probation.

*****
I think the workplace across most sectors is now a toxic mixture of stress and relentless target driven exhaustion. The workplace has become a galley ship, with employees manning the oars whilst the privateer masters bang the drum ever faster and demand more and more. It's profit that matters. Professionalism is just an expensive obstacle to reaching targets, signing off and claiming payment. The workforce are mules, a necessary evil the corporations must endure in their pursuit of ever greater profits. The employment market in 2018 is just another government created crisis. It's unhealthy, and quantity driven, quality means less dividends for shareholders. It's just a dirty world we live in where there's no trust anymore, and the only thing that matters is profit.

*****
Bullying & abusive behaviour by management began escalating when the pre-privatisation Trusts were created. I had several months' sick leave shortly before the TR debacle kicked off. I saw my own GP but her reports weren't good enough for the Trust so they commissioned a new report from their own Occ Health GP. The OH GP was initially very hostile, had clearly been briefed against me & was dismissive of my own GP's views.

After two lengthy & very tense meetings the OH GP wrote a report which was factual, but with a clear bias against myself & my situation. I felt utterly crushed, and when OH GP asked me back for a further meeting I was guarded, angry & very anxious. His opening gambit was to show me a letter he'd received from the Trust which stated that the Trust wanted him to "tweak" his report saying it was "not strong enough for their needs". He told me he realised he had been 'played' by the Trust, was led to believe I was "a malingerer and a troublemaker", that he was sorry he had not previously believed my account of the bullying & abusive practices, that he now had "a much clearer appreciation" of my situation and that he would be taking "appropriate professional action".

The following week I was offered a generous return-to-work package which allowed me to keep all of my accrued annual leave (as opposed to using it for the RTW). I was in a union. I did have a union rep. They were fucking useless. I complained to the branch, region & HQ - never got a reply. The rep was subsequently promoted & went on to become the 'fixer' for the Trust's primary bully. Who knows, perhaps they are still enjoying shitting on people in NPS or CRC? Along came TR, the shafting process and the non-EVR omnishambles.

I left. My GP says I'm no longer at immediate risk of, to use Jermey *unt's compassionate euphemism, "a shortened life".

*****
If the caseloads and constant grind won't change we need to push for something that will extend careers. Only this week there was chat about teachers being allowed to apply for 12 months paid sabbatical. I'd like a 3 month break every 3 years, either a sabbatical taken from accrued leave or placement in a non operational/ non-client facing role. In the meantime we need meaningful clinical supervision rather than line management supervision.

*****
No you need managers to stop making the work environment so demanding. No amount of supervision, therapy or leave is going to change this.

*****
Nothing more stressful than having urgent reports to write and the IT system isn't working. Not for a couple of hours but days! Told at 8am when only 4 people in using laptops that too many users making the system slow!!! Get a grip Working Links!

*****
But why are you stressed, it is not your problem. Record on ND every day “IT system not working, report cannot be started/completed”. When the deadline is imminent you email your manager, stating the problem and how they intend to resolve it. This is what managers are for.

*****
Joint announcement - let's peer through the smoke & into the mirrors...

- explore the prospects: there's nothing to see
- independent of the dispute: the dispute is sidelined
- reassessment around funding streams: we're changing the rules
- capacity to meet costing implications: there is no capacity
- series of further meetings: stalling, delaying, obstructing
- as soon as more news becomes available: there is no more news

The Message: "you ain't gonna get jack, folks"

*****
"The employer reported that they are currently involved in talks with the MoJ and explained the work that they are undertaking as a result of the recent findings of the Parliamentary Public Accounts Committee. This has led to some reassessment by all CRC contract holders around future funding streams and their capacity to meet the costing implications of the unions likely pay claims "

Napo is doing what it must do ask for more pay in line with any Union function. The dispute me well be on going but pay is a matter of all sides to attend to. What the report says is there is no money for pay claims and the MoJ are in talks. What does that really mean Working Links Cant pay staff so what?

*****
So will the majority of PO's who left in the last year to go to NPS etc get any back pay? Seriously folks there are virtually no non agency PO's left in Working Links now. It will take more than a miserly few quid to sort that problem out. Sooner they fold the better. You can't run a service like this on agency staff. No offence but it is bad economically as well as in terms of overall commitment to the service users and employers. Or do I misunderstand the meaning of transformation?

*****
Can you see WL tracing ex-employees to give them money? Sadly the 'joint statement' bears no resemblance to previous slash, parry & riposte of Dino; sounds like another Napo HQ fudge-up. Are we sure HQ aren't in the pocket of Spurr & MoJ? They seem determined to take everything down a cul-de-sac, leaving members in the shit.

*****
No we cannot be sure if a Napo Spurr MoJ allegiance is a factor but there is no way Dino would be any part of that not a chance he is pro member pro rights pro union full stop.

Short Sight and Sentences

The ramifications of Chris Grayling's break-up of the probation service continue unabated and I notice that Penelope Gibbs of Transform Justice has weighed-in on the subject of short prison sentences:-  

Everyone admits short prison sentences are ineffective, so why do the courts still use them?

Hallelujah! A government minister is openly saying that short prison sentences are a waste of time. Or at least tweeting "1870 Declaration of the National Prison Association of the United States: XX. “It is the judgment of this congress, that repeated short sentences for minor criminals are worse than useless; that, in fact, they rather stimulate than repress transgression.” Minister Rory Stewart also said in the House of Commons that "we have conclusive evidence that giving somebody a community sentence rather than a short custodial sentence reduces reoffending over a one-year period".

Given rampant sentence inflation and a long pipeline of legislation for new offences and/or more punitive sentences for existing offences, it is a huge relief to hear a minister express a clear desire not just that the prison population fall but to do something about reducing it. Other ministers have referred to a fall in the prison population as a "nice to have", over which the government has no control, because judges make decisions on a case by case basis.

Rory Stewart, Minister for Prisons and Probation, seems to understand that the government has very powerful levers by which it can reduce the prison population, if it wants to use them. Mr Stewart admitted that England and Wales has "a lot of learn from Scotland". Hallelujah again. The SNP administration in Scotland has brought in a presumption against prison sentences under three months, and is proposing to increase that to sentences under twelve months. The presumption against sentences under three months has not made a big difference to the Scottish prison population, but the messaging and direction of travel matter, and the under twelve month presumption will be a step change.

The Westminster government is faced with several challenges in trying to reduce or eliminate the use of short prison sentences:

1. Unlike the Scots, we privatised most of our probation services and the delivery of community sentences is pretty ropey. This doesn't mean that they are not more effective than short prison sentences in reducing offending - they still are.
2. Magistrates and judges have a long standing distrust of community sentences, which has led to a decline in their use, a decline which started way before Transforming Rehabilitation (the programme to part-privatise probation).
3. Our press may campaign against any move to reduce short prison sentences, particularly if the reform affects someone convicted of, say, domestic abuse or of assaulting a police officer .
4. The legislative timetable is full of Brexit ping-pong so there is no time to get a new presumption/ban on short sentences through parliament.

There is no easy answer to these challenges. But here are some ideas on how to at least prepare the ground for abolishing short prison sentences:

1. Give judges and magistrates better training. All would benefit from a basic crash course in criminology - on the societal and individual drivers to crime, what works to reduce crime (inc desistance theory), and the relative effectiveness of different sentences.
2. I am not a big fan of getting judges to visit prisons, since they never see the real prison, warts and all. Instead I would mandate all judges to visit community sentences in action and talk to those involved. The pioneering programme "Rethinking Crime and Punishment" ran a successful pilot programme to get judges to truly understand community sentences. This was funded by a charity - the Esmee Fairbairn Foundation - but, when it ended, the government would not pick up the tab to continue or expand it.
3. Don't try to ban the suspended sentence order. This week the Chair of the Sentencing Council wrote that the SSO should never be recommended in a pre-sentence report, since it was not a "real" sentence and appeared to be being used instead of a community sentence. Our sentencing framework is not ideal and the SSO is a fudge, but it has been preventing many people from being sent to prison for a short time. And those who are sentenced to an SSO with conditions reoffend less than those sentenced to community sentences. So it seems to be throwing the baby out with the bathwater both to increase penalties for breach of SSO, and to artificially reduce its use.
4. If ministers don't think they can get sentencing legislation through any time soon, why not task the Sentencing Council with reducing the use of short prison sentences through adapting their guidelines. A new report commissioned by the Council points out that both the official reports on the impact of their guidelines point to an inflationary effect. Sir Anthony Bottoms, the author, suggests sensibly there should be a greater emphasis on personal mitigation in the guidelines, and a requirement that courts ask themselves "is custody unavoidable?"
5. Messaging is critical. The newspapers may oppose any reduction in short prison sentences, but are unlikely to do so if they understood that short prison sentences lead to more crime. And ministers should not be tempted to say that community sentences are tough, or should be tougher (as they and the opposition frequently do). There is no evidence that tougher or more punitive community sentences work better, and some evidence that the more requirements piled on a community sentence, the more likely it is to be breached and thus fail.
6. The government may also want to put some focus on particular areas. Postcode sentencing is a little studied but real phenomenon - whereby some courts/areas/judges seem to be much more liable to use prison sentences than others. Russell Webster the other day found a table in the Ministry of Justice's responses to FOI requests which revealed: "The proportion of defendants sentenced to immediate custody in Magistrates’ Courts ranged from 0% (in 4 courts) to 14% in South Worcestershire and 33% in Harrogate and Skipton (where only 6 defendants were sentenced all year.)" It would be worth analysing which areas are most prone to use short-term custody and focus scarce training resources (and ministerial visits) on those areas.

Revolving Doors has launched a #shortsighted campaign to reduce short prison sentences. Do pledge your support. And go to see your MP to persuade them of the campaign's merits.

Penelope Gibbs

Too Many Suspended Sentences 2

I notice Rob Allen feels the tide might be turning as regards short prison sentences in England and Wales:-

   
More Council of Despair?

All’s not well at the Sentencing Council. Chairman Lord Justice Treacy has had to remind judges and magistrates to use suspended prison sentences only in the most serious cases which would otherwise result in custody – and not simply as a way of giving lower level community penalties more teeth.

Treacy - and no doubt the Ministry of Justice - fear that if courts continue to ignore last year’s guideline on the imposition of custody but do pay heed to a forthcoming one on breach, the result will be “a high volume of activated suspended sentences”. That means more pressure on the beleaguered prison system which has reported record levels of violence and self-harm in 2017.

More than one in ten suspended sentences are terminated early for a failure to comply with requirements and 18% for a further offence. While it’s not known how many of these cases currently go to jail, the new guideline is expected to urge activation of the custodial sentence unless it would be unjust in all the circumstances. The draft of the breach guideline tells courts to remember “that the court imposing the original sentence determined that a custodial sentence was appropriate in the original case”. The problem is that in many cases they haven’t and it wasn’t.

The Council and Probation service have cooked up a plan to stop suspended sentences being recommended in Pre-Sentence Reports (PSRs).  They’re proposed in about a third of PSRs and courts accept two thirds of the proposals. What will happen now? While the hope is that most suspended sentences will be replaced by community orders, there’s a risk that some additional custody may be imposed or even proposed.

Such unintended consequences would be nothing new for the Council. An independent review of its work by eminent criminologist Sir Anthony Bottoms has confirmed that two major guidelines - on assaults and burglary - have led to unexpected increases in the severity of sentencing, "which is bound to create anxiety among civil liberties groups”. The review is also critical of the Council’s failure, when drafting guidelines, to consider the relative cost and effectiveness of prison and other sentences in reducing re-offending.

The review makes largely technical recommendations about how the Council should both undertake and communicate its work in the future. There are good ideas here - a greater emphasis on personal mitigation in the guidelines, and a requirement that courts ask themselves "is custody unavoidable?" because sentencers may forget to do so.

Not surprisingly the Council has rejected the idea of opening itself up to a television documentary but it has promised to foster better links with academics, review research on the effectiveness of sentencing and engage more with stakeholders other than sentencers. An external agency will be appointed to examine issues of public confidence in sentencing.

Bottoms echoes several of the findings in the report I wrote for Transform Justice in 2016 -The Sentencing Council for England and Wales - Brake or Accelerator on the Use of Prison. He argues that a preoccupation with the prison population has blunted the impact of the Transform Justice report because “the current reality is that it would be politically very difficult for the Council, even if it wished to do so, to argue for a step change in the use of prison.” That may be true but does not excuse the fact that a body which could have curbed the unnecessary use of prison has largely failed to do so.

Actually, noises coming from the Ministry of Justice are more promising than for some time. Prisons minister Rory Stewart told Parliament this week that he will be looking at what more the Government can do to emphasise ​that a custodial sentence in the short term should be a final resort. He accepted there is a lot to learn from Scotland which has introduced a presumption against short prison sentences. Maybe the tide is finally turning?

Rob Allen

Too Many Suspended Sentences

This news in the Guardian is an idication of just how determined the government is to make TR work, rather than admit it's all been a terrible mistake:-   

Stop handing out so many suspended sentences, courts told

Community orders more legally appropriate, Sentencing Council for England and Wales says

Judges, magistrates, court clerks and probation officers have all been instructed to stop handing down so many suspended prison sentences and switch instead to giving offenders community orders. A leaked circular sent earlier this month by the chair of the Sentencing Council, Lord Justice Treacy, to courts across England and Wales warned that a punitive culture had developed – imposing suspended sentences “as a more severe form of community order” when not legally appropriate.

Probation officers have been told to no longer recommend suspended sentences in pre-sentence reports. The two-page letter highlights a stark trend that has emerged over the past decade of suspended sentence use rising sharply while the number of community orders has almost halved. Suspended sentences are given to convicted offenders on the understanding that if they reoffend or fail to observe their conditions they are liable to be sent to prison.

Treacy’s circular has been sent at a time when prisons remain overcrowded. In it he wrote that in 2005, courts handed out almost 203,000 community orders; by 2010 that had fallen to 188,000 and in 2015 it was fewer than 108,000. By contrast, the number of suspended sentence orders has risen substantially. They stood at 4,000 in 2005, reached 46,000 in 2010 and were more than 52,000 in 2015.

The circular explained: “Evidence suggested that part of the reason for this could be the development of a culture to impose suspended sentences as a more severe form of community order in cases where the custody threshold may not have been crossed.

“In such cases, if the suspended sentence order (SSO) is then breached, there are two possible outcomes – neither of which is satisfactory. Either the courts must activate the custodial sentence and the offender then serve time in custody even when it may never have been intended that they do so for the original offence. Or the court could choose not to enforce the suspended sentence, thereby diminishing the deterrent power of such orders.”

Treacy added: “A suspended sentence is a custodial sentence and not a more severe form of community order. They can only be imposed where the court has determined first that the custody threshold has been crossed and second that custody is unavoidable ... At that point the court may then undertake a weighted assessment of the various factors which may lead the court to consider that it is possible to suspend the sentence.”

In order to give effect to his warning, Treacy agreed with the director of the National Probation Service that probation officers would refrain from recommending SSOs in pre-sentence reports. Treacy noted: “This in no way impacts upon judicial discretion to suspend custodial sentences: it merely seeks to reinforce good sentencing practice.”

Penelope Gibbs, the director of Transform Justice, who has seen the circular, fears it could lead to judges giving more prison sentences if they are discouraged from using suspended sentences. She said: “I completely understand the desire of the Sentencing Council to increase community orders. But banning the probation service from recommending suspended sentence orders is not the right strategy. If a suspended sentence is not recommended, judges may use a prison sentence instead, and we know that short prison sentences are ineffective”

There has been growing concern that community orders are falling out of fashion. Two years ago the former lord chief justice, Lord Thomas of Cwmgiedd, called for the creation of “really tough, and I do mean tough, community penalties”.

A Different Viewpoint

I am grateful to The Justice of the Peace (Magistrates) Blog for stirring me out of my temporary silence by this piece about a recently reported case in Exeter. Before proceeding it is necessary to issue the usual health warning that commenting on cases without full knowledge is a risky business and is precisely why society must have confidence in its sentencers to do the right thing, because they alone are in possession of all the facts.

It is not unusual for a probation officer to be faced with preparing a PSR in respect of a new offence when the defendant is already subject of a Suspended Sentence Order. On the face of it and looked at from the PO's point of view it represents quite a challenge if the court is to be persuaded not to simply activate the suspended term of imprisonment and add a bit more in respect of the new offence. So, how would I approach this task? 

Firstly I would make the point that I feel it was a mistake to give the Magistrates Court the power to impose Suspended Sentences in the first place. This used to be restricted to the Crown Court only and as such in my view carried much greater weight when handed down. They were quite rare sentences and were often combined with Supervision Orders. It was not unusual for any breach to be reserved to the sentencing Judge who sometimes requested progress reports along the way. I guess what I am saying is that in essence the sentence has been somewhat devalued since it became more widely used. 

In this case we are not told if the new offence was similar to that for which the suspended sentence was made. This is relevant in my view and we are not told if there was a full PSR prepared or not. My assumption would be that there was and if so the author would have gone to some lengths to stress the change in personal circumstances. The issues of taking responsibility for the partners child, gaining employment and the impending arrival of a new baby would all be worthy of highlighting in my view.

Clearly imprisonment would be extremely detrimental in this situation and achieve absolutely nothing in terms of assisting rehabilitation, which after all is one of the key aims of the whole justice process. All probation officers know full well that finding a partner is often the turning point for many young offenders, as indeed is the normal maturing process. This young man was 19 and many in his situation simply stop offending around this age.

Of course the other aim of the process is punishment and in this case the offender was made subject of a curfew, 40 hours UPW, a compensation order and court costs all in addition to a further period of imprisonment suspended. I would like to think that this would have been broadly my recommendation in a PSR and I would have attended court in person to support it. Based on limited information, I think it was the right outcome and I'd hazard a guess it might indeed prove to be the turning point for this young man. For me it once more highlights the vital importance of full Pre Sentence Reports being prepared by qualified probation officers.