Crime and Courts Bill

House of Lords, 2nd reading, 28 May 2012

Clause 23 – Community sentences

Clause 23 of the Bill – ‘Community and other non-custodial sentencing of adults’ – concerns community sentences and gives the Secretary of State a power to make regulations for the provision regarding the imposition and content of community sentences. The government’s plans for reform of community sentencing are set out in the Ministry of Justice’s consultation paper, Punishment and reform: effective community sentencing.1 The review of community sentencing is taking place in parallel with a review of probation services.2 Both consultations opened on 27 March 2012 and will close on 22 June 2012. The Prison Reform Trust will be making detailed submissions to both consultations.

Under the proposals set out in the community sentencing consultation the government will:

• Ensure that there is a “clear punitive element” in every community order handed down by the court

• Explore the creation of a “robust and intensive punitive community disposal”, which courts can use for offenders who merit a significant level of punishment

• Support greater use of financial penalties alongside community penalties, ensuring that they are set at the right level and effectively enforced

Alongside the government proposes significant reforms to the Probation Service. The consultation:

• Further extends the principles of competition to more of community-based offender management, building on the provisions of the Offender Management Act 2007

• Explores how best to ensure that probation can lever in the expertise of the voluntary and private sectors, building on existing policies to pay community sentence providers by results

• Sees Probation Trusts in future taking on a stronger role as commissioners of competed probation services, contracted to be responsible for driving better outcomes. It proposes to separate clearly the commissioners from the providers of competed services

• Consults on different models for oversight of probation services, including the potential involvement of Police and Crime Commissioners and local authorities at a later stage

The memorandum of understanding on delegated powers which accompanies the Bill states the clause is “designed solely as a placeholder to allow the Secretary of State to take forward proposals set out in the consultation paper, once final policy decisions have been taken in light of responses to the consultation.”

1 Available at https://consult.justice.gov.uk/digital-communications/effective-community-services-1 2 Available at https://consult.justice.gov.uk/digital-communications/effective-probation-services

Community sentences

The government’s consultation is an opportunity to build of the recent success of community sentences at reducing reoffending. The Prison Reform Trust recognises that community sentences need to be robust and demanding, in order both to challenge offenders and ensure they gain the confidence of the public. However, we are concerned that the emphasis on making community sentences more “punitive” could undermine their success and damage, rather than reinforce, public and court confidence in community provision. Community sentences require proper investment and strong, consistent political backing for public and court confidence to increase and be sustained.

Balanced research, comparing similar offenders and similar offences, shows that community sentences are now outperforming short prison sentences and are 8.3 % more effective in reducing reoffending rates.3 This is increasingly recognised by the public and we question whether, as the consultation suggests, there is a significant problem with public confidence in community sentences. In an ICM poll commissioned one month after the riots last summer, 76% of the 1,000 people surveyed thought unpaid community work was effective at preventing crime and disorder. Just under two thirds (65%) felt a prison sentence was effective.4

Community payback successfully combines rigour and restrictions on liberty with reparation and rehabilitation. Schemes such as the impressive intensive alternative to custody run by probation and police in Manchester, and intensive offender management in Avon and Somerset, continue to cut crime. Youth conferencing has successfully placed restorative justice at the heart of the youth justice system in Northern Ireland, and there is scope for mainstreaming its use throughout the justice system as a whole.

It makes social and economic sense to capitalise on these successes. The best way to do so is to identify the elements that work particularly well: intensive supervision, community payback, restorative justice, developing personal responsibility, and dealing with housing, employment, addictions and mental health. We welcome proposals to build on the work of the intensive alternative to custody pilots by making them available to courts in every area. We support greater flexibility in the use of fines and more discretion for offender managers in handling breach proceedings. We also welcome the government’s intention to increase capacity for restorative justice, and would like to see legislation bought forward to make restorative justice available as a pre-sentence option for all victims.

However, loading extra punitive requirements onto community orders, such as extended curfews or other complex, additional restrictions are almost bound to lead to an increase in breach of license requirements, particularly by young people. Data published for the calendar year 2009 show that 3,996 people were received into prison establishments in England and Wales for breach of a community sentence.5 Prison has a poor record at reducing reoffending with 47% of adults reconvicted within one year of being released, rising to 57% for those serving sentences of less than 12 months.6 A more “punitive” approach could result in the expensive failure of people ending up in prison instead of going straight in the community.

3 Ministry of Justice (2011) Compendium of reoffending statistics and analysis 2011, London: Ministry of Justice 4 Prison Reform Trust (2011) Public want offenders to make amends briefing paper, London: Prison Reform Trust 5 Table 6.9, Offender Management Caseload Statistics 2009, Ministry of Justice 6 Table 18a, 19 and 7a, Ministry of Justice (2011) Proven Reoffending Statistics Quarterly Bulletin January to December 2009, London: Ministry of Justice

Young adults

Proposals to build on the work of the intensive alternative to custody pilots by making them available to courts in every area have the potential to benefit young adult offenders and reduce reoffending. Eighteen to twenty-five year-olds make up one in ten of the population as a whole, but they account for a third of those sent to prison each year and a third of the total social and economic cost of crime. Nearly two thirds of young people released from custody in the first quarter of 2008 reoffended within a year. The intensive alternative to custody (IAC) pilots in Greater Manchester and West Yorkshire have demonstrated the value of focussing these orders on this cohort. While the Ministry of Justice has not yet completed the impact evaluation of the IACs, the early indications are that reoffending rates in these two areas are significantly lower and many of the young men engaged have been helped into education, training and employment, which is widely-acknowledged as being crucial to successful rehabilitation.

A focus on young adult offenders would also dovetail neatly with the very successful recent work by the Youth Justice Board and individual youth offending teams to reduce the number of children in custody by around 30 %. While pockets of good practice do exist, reoffending rates on release from custody are very poor for young adults, especially those serving short sentences. Her Majesty’s Chief Inspector of Prisons has specifically raised concerns about young adults sentenced to detention in a young offender institution (YOI), describing his impression of “young men sleeping through their sentences” in HMYOI Rochester 7 and a lack of engagement in work, education and training opportunities across the YOI estate.8

We note that the Final Report of the Riots Communities and Victims Panel identified weaknesses in the transition of under 18 year olds into the adult criminal justice system, and recommended that all Probation Trusts take a specialist approach to dealing with young adults within the next two years. It also highlighted the good work being carried out in Greater Manchester and proposed that “Probation Trusts and their partners develop intensive alternatives to custody schemes for young adults across the country, with roll-out in those areas which experience the highest levels of reoffending within two years.”9 Focussing provision on young adults should enable the Government to meet this objective.

Women

Baroness Corston recommended that “community provision for nonviolent women offenders should be the norm”.10 The community sentences consultation is an opportunity to put this recommendation into effect. We welcome the government’s recognition in the consultation that women offenders tend to have multiple problems relating to their offending, including mental health and substance misuse problems, as well as education, employment and relationship needs. The consultation highlights the importance of ensuring that community sentences “support women in addressing their needs as part of the rehabilitation process.” It emphasises the need for “decent non-penal options for offenders with caring responsibilities” and opportunities for women to complete community payback orders in appropriate settings. Effective community provision can have a beneficial impact on women and their offending behaviour. Data shows that a slightly higher proportion of women have positive outcomes (successful completion or early termination for good progress) for community orders than men (69% and 65% respectively), whilst a slightly lower proportion of women than men failed to comply with requirements or were convicted of another offence while serving community orders (22% of women and 26% of men). However, women are less likely than

7 Report of an announced inspection of HMYOI Rochester, HMCIP (June 2011) 8 HM Chief Inspector of Prisons – Annual Report 2010/11 9 After the Riots – the Final Report of the Riots Communities & Victims Panel (March 2012) 10 Corston, J (2007) The Corston Report: A report by Baroness Corston of a review of women with particular vulnerabilities in the criminal justice system, London: Home Office

their male counterparts to receive a community sentence. In 2010, just 10% of women received a community sentence compared to 16% of men.11 Over the last 15 years, there has been a 114 % increase in women’s prison numbers.12 Most women serve short sentences for non-violent crime and for those serving less than 12 months, almost two thirds are reconvicted within a year of release. In 2009 two thirds of all women sentenced to custody were serving sentences of six months or less.13 Over a third are serving sentences for theft and handling stolen goods.14. Many women offenders have themselves been victims of serious crime, domestic violence and sustained abuse. Despite representing just 5 % of the total prison population, women accounted for 43% of all incidents of self-harm in prison.15 Many women offenders have children or are the primary carer for disabled or elderly dependents. Each year almost 18,000 children are separated from their mothers by imprisonment.16 Just 5 % stay in their own homes when their mum goes to jail. Imprisonment will cause a third of women to lose their homes, reducing future chances of employment and shattering family ties.17 Women’s custody is not only ineffective in many cases; it is also expensive. The average cost of a women’s prison place is £56,415 a year.18 By contrast, an intensive community order or a women’s centre placement costs less than £15,000. The government has committed to £3.5m funding for 30 Women’s Community Services in 2012/2013. It promises to develop four women-only intensive, treatment-based alternatives to custody to tackle drug and mental health problems and improved training for staff who work with women offenders who are victims of domestic violence or involved in sex work. It states that “responsibility for providing gender specific and holistic services” will be “built into the fabric of every Probation Trust as part of comprehensive service delivery.” While we welcome these commitments we believe the government could do more to prioritise community provision. We would like to see the national network of women’s centres developed beyond the 45 voluntary organisations that were originally supported by central government to improve the availability of women’s community provision and their funding placed on a sustainable basis. Instead the number of centres and level of funding has been cut and support is only guaranteed until the end of 2012/2013. We would like assurances as to how women only services will be protected in the new commissioning environment of localism and payment by results and would like to see women’s service as an integral part of all future reoffending contracts. Above all, reform of women’s justice requires clear oversight and cross-government accountability if the government is to succeed in reducing reoffending by women and the women’s prison population. Restorative justice

The Prison Reform Trust welcomes the government’s vision that restorative justice should be available at every stage of the criminal justice system. Restorative justice brings victims and offenders into communication, so that victims can tell offenders the real impact of their crime and receive an apology; and so that offenders are encouraged to take responsibility and make amends. The Home Office and Ministry of Justice research study of restorative

11 Ministry of Justice (2012) Punishment and Reform: effective community sentences, London: Ministry of Justice 12 Table A1.2, Ministry of Justice (2011) Offender Management Caseload Statistics 2010, London: Ministry of Justice 13 Table 6.1, Ministry of Justice (2010) Offender Management Caseload Statistics 2009, London Ministry of Justice 14 Ibid. 15 Ministry of Justice (2010) Safety in Custody Statistics 2009, London: Ministry of Justice 16 Wilks-Wiffen, S (2011), Voice of a Child, London: Howard League for Penal Reform 17 Wedderburn, D. (2000) Justice for Women: The Need for Reform, London: Prison Reform Trust 18 Hansard HC, 4 April 2011, c642w

justice showed that, for adult offenders and serious offences (robbery, burglary and violent offences):

• The majority of victims chose to participate in a face to face meeting with the offender, when offered by a trained restorative justice facilitator;

• 85% of victims said they were satisfied with the process; • Participation in restorative justice, pre- or post-sentence, reduced the frequency of

reoffending by 14%. 19

Victim Support and the Restorative Justice Council have estimated that using restorative justice pre-sentence, with 70,000 adult offenders convicted of burglary, robbery and violence, would produce cost-savings to the Criminal Justice System of £185 million from reductions in reoffending alone. During the research trials, restorative justice was offered to victims where offenders pleaded guilty at first appearance in the Crown Courts in London, for offences of burglary, robbery and violence. Victims participating in the trials said that restorative justice was offered to them at ‘about the right time’. It was not found to delay court proceedings when introduced at the pre-sentence stage. The judges liked pre-sentence restorative justice as they were able to factor the report from the restorative process into their sentencing decision, including evidence whether or not the offender was remorseful and prepared to make amends.

Whilst the government’s commitment to further study is welcome, there is already strong evidence that restorative justice is effective. Based on the findings of the government’s own research, and the loss of pre-sentence restorative justice since the research trials closed, the Prison Reform Trust, the Restorative Justice Council, Victim Support and the Criminal Justice Alliance advocate the need for legislation for pre-sentence restorative justice, along with guidance to sentencers.

19 Breaking the Cycle Evidence Report, Ministry of Justice (December 2010)

Probation Service

This article20 by Geoff Dobson on the proposed probation reforms that was published in the Guardian on 23 May 2012. Geoff is company secretary at the Prison Reform Trust and is a former chief probation officer and former chair of the Association of Chief Officers of Probation.

What does a modern effective probation service look like? This is the question being asked by a Ministry of Justice consultation paper. If adopted, government proposals would result in arguably the most significant changes to the probation service since the 1925 Criminal Justice Act established probation committees and the appointment of probation officers became a requirement of the courts. The proposed new model has commissioning at its heart and a purchaser / provider split. The plan is for probation trusts to take on a stronger role as commissioners of competed, out-sourced probation services which could be provided by private firms, voluntary sector organisations, social enterprises and even staff mutuals. The number of trusts may reduce from 35 with the need to develop competence in commissioning.

Certain functions, such as advice to the courts on appropriate sentences for offenders, initial assessments of their risk, and responsibility for high-risk offenders are reserved for the public sector. But the consultation proposes “opening to the market” the management of lower risk offenders. The proposed model fails to stand up to several vital tests. First, it sees risk as a static concept, failing to recognise that circumstances can change abruptly and the risk posed by an individual can increase markedly overnight. Thus someone who is deemed to be of low or medium risk could suddenly become high risk, but staff in the contracted organisation may not be equipped to recognise that and, even if they did, would then presumably need to arrange a hurried transfer back into the public sector. This could be a bureaucratic nightmare with public safety under threat. The Probation Chiefs Association has recommended instead that the public sector retain the offender management role for all those who are subject to court orders and post-custody licences. This would provide the infrastructure for a seamless service and a continuity of supervision.

Second, it fails to understand the complexities of accountability in the criminal justice system. If a judge or magistrate has concerns about the supervision of a contracted-out court order, with one or more organisations involved, who do they ask to appear before them? If the public sector retains the offender management role responsibility is clear.

So what is the case for this huge overhaul? The paper cites reoffending rates as the reason for wholesale reform. It tells us that half of all adult offenders reoffend within a year of leaving custody and the figure rises to three quarters for those sentenced to youth custody. Reoffending by offenders sentenced to less than 12 months in prison is estimated to cost the economy up to £10bn annually it adds. Crucially however, it does not use its own research to highlight the superior performance of those sentenced to community sentences. Community sentences for 18-24 year olds outperform prison sentences by 12.8 percentage points in reducing reoffending. Even when offenders of all ages are closely matched in terms of criminal history, offence type and other significant characteristics, the performance gap for short prison sentences remains a robust 8%. So why not invest instead in the further development of probation’s work in delivering community court orders rather than fragmenting the service through this proposed privatisation?

20 http://www.guardian.co.uk/society/2012/may/22/problem-with-privatising-probation-services