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October 2018 - Community sentences

Minutes of the Meeting of the All-Party Group on Penal Affairs, held on 23 October 2018


Stephen Whitehead, Head of Policy, Centre for Justice Innovation,
John Bache JP FRCS, Chairman, Magistrates Association,
Jim Barton, Director, Probation Programme, Ministry of Justice.


Lord Ramsbotham (in the Chair)
Victoria Prentice MP
Earl Atlee
Lord Ponsonby
Lord Bradley

Lord Ramsbotham welcomed everyone to the meeting and introduced the topic Promoting Effective Community Sentence. He said he had just come from a Justice Unions meeting where people were discussing court closures and probation problems, so the topic is very relevant. Lord Ramsbotham introduced the three guest speakers and thanked them for coming to the meeting.

Stephen Whitehead, Head of Policy at the Centre for Justice Innovation described the work of the charity which works to support innovation in the UK Criminal Justice System; helping practitioners make changes in their local area and to have an impact on national policy. For the last two years they have been looking at the issue of how to promote effective community sentences. They have been doing this because there is evidence that community sentences work: they consistently show a reduction in reoffending as opposed to custodial sentences, at a fraction of the cost per year. However the usage of community sentences has dropped by a third in over since the beginning of the decade. 

The Centre’s focus has been on court processes and to get a sense of how they interact with the external procedures; how the National Probation Service works in courts and how it influences the sentencing process. They have been reviewing the publicly available data on probation activity and speaking to probation officers and their counterparts in different parts of the UK to get a comparative perspective, as well as policy makers, experts and sentencers. The full research report will be published next year. Due to time constraints Stephen was not able to discuss the report in full but highlighted some its findings about pre- sentence advice.

Pre-sentence reports are prepared by probation officers and delivered to judges and magistrates to provide an assessment of the needs of offenders and to give a view on appropriate sentences. Stephen noted that it has been a difficult time for pre-sentence advice and there have been lots of changes that people have had to adjust to. The Transforming Rehabilitation reforms have had an impact and one of those is that the people providing the pre -sentence advice are no longer working for the same organisations delivering the majority of sentences or commissioning almost all of the sentences in the community. At the same time the change of practice in the courts to effect speedy and efficient conclusion of cases, although an admirable aim, has had an impact on time for reflection and thought. The huge number of court closures has meant larger and busier courts which has been disruptive as people adjust to their new environments.

Stephen took the group through three headlines of their research. First, there are far fewer pre -sentence reports being written, down by a third in six years, and that is at a time when the number of convictions remains stable so it is not about workload. Now cases are much less likely to have the expert advice that they used to. Two of the most common explanations as to the reasons why are attributed to the changing nature of court practice and it being harder to find the time to produce a pre -sentence report, therefore the decline in community sentences. Or alternatively that judges and magistrates primarily use pre -sentence reports to consider passing a community sentence. What is clear is a huge reduction in expert advice that judges and magistrates are receiving and there is an urgent need for this to be looked at.

Second, there has been a dramatic change in the way that advice is delivered, more reports are being presented orally on the day rather than request an adjournment for a full assessment. Their research indicates there is less concern about this as there are good new structures to support these oral reports. However, what is causing concern is that when cases are adjourned very few are getting the most comprehensive form or report: the standard delivery report. In a lot of very complex cases probation officers are having to process them as fast delivery reports instead, meaning they have only half a day to assess and write up their reports.

There are very strict guidelines on what merits a full standard delivery report. Some cases very complex can fall outside of those guidelines such as a serious offence where there is an undiagnosed mental health need or some very long-term domestic violence cases, with a heavy degree of coercion and control. These are cases that people have told us they would like to spend more time on: that they believe they can produce better recommendations if they have more time and they worry they are not able to give sentencers the best information they need to make decisions on those cases.

Third, the National Probation Staff working in courts are not in the same organisations as the staff in Community Rehabilitation Companies, which deliver the sentences so they lack information about the services in the community. They won’t know for example if a new service has actually come on line, maybe exactly who the target group is, how long a person may have to wait on it, or how intensive or long that might be. This lack of knowledge really inhibits them from assessing what a person might be most suitable for.

Alongside this we have the new Rehabilitation Activity Requirements, a generic requirement where the sentencer may have a view on what activities would be appropriate and specify how many activity days must be completed. However, it is ultimately the responsibility of the Probation Officer or Responsible Officer in charge of the case to decide on what activities the participant will attend for a fixed period. Stephen pointed out that although there is some value in that flexibility it is difficult for a judge or a magistrate to decide whether that person will be safe in the community and whether they will get the level of support they need to reduce the level of risk they pose to the public. So the real concern is they will err on the safe side and put people in custody as they are not able to accurately assess whether a community order is appropriate.

Stephen said there are steps that can be taken at a policy level on pre-sentence reports, such as to develop a new sentencing guideline for when they are required. Also the National Probation Service could provide better guidance on when a full standard delivery report is required and encourage probation officers to use their discretion when they think an inappropriate decision has been made.

In terms of information for sentencers Stephen highlighted some good practice in local areas, such as: Teesside Magistrates’ Court where the Community Rehabilitation Company have a permanently located member of staff to help inform sentencing decisions; Leicestershire where the National Probation Service  and the Community Rehabilitation Company  are working with the HM Courts and Tribunals Service to provide training for new magistrates where they get to meet probation staff and people on sentences; and  Northumbria Court where the Community Rehabilitation Company have produced a great brochure on their services to be referenced in court.

Stephen called for a re-engagement with a longer standing issue on how to assess whether a sentence was effective. Currently there are no commonly-used formal mechanisms in the UK for sentencers to be able to follow offenders. There has been experiments with the use of completion reports and drug rehabilitation requirement reviews but none of these have been very widely used and the common view is that they have been squeezed out for considerations of timeliness and efficiency, which is going against the need for a clearer view of the longer term outcomes.

To conclude Stephen was positive that there are solutions to these problems, some of which have come about from the Transforming Rehabilitation reforms but others of which also relate to wider, more long-standing issues. However the situation where probation services are split does need to be resolved. Stephen emphasised the need to have an open mind as to whether the structure we currently have is going to make the best use of community sentences.

Lord Ramsbotham thanked Stephen Whitehead and introduced the next guest speaker, John Bache, Chair of the Magistrates Association, JP FRCS.

John Bache introduced himself and explained why he has FRCS (Fellowship of the Royal Colleges of Surgeons) after his name on the meeting notice. This was to illustrate that magistrates are not lawyers but come from a range of backgrounds. They work with legal advisers who are legally qualified and if they need advice about the law they take it from them. John went on to explain how magistrates decide how to sentence somebody. Magistrates adhere to Sentencing Guidelines and stick to them fairly rigidly. They can deviate from them if it is in the interest of justice to do so but then they have to give the reasons why. There may also be a statutory maximum for some offences which is decided by Parliament.

John outlined the five purposes for sentencing somebody: punishment, protection of the public, rehabilitation, reparation and reduction of crime (including deterrence). There are a number of options available for when a person has to be sentenced. At the lowest end of sentencing are discharge, absolute or conditional discharge, which are unlikely in the types of offences relevant to this meeting. The next option is a fine and a fine fulfils one of the purposes of sentencing which is punishment as no one likes to give up money! At the highest end there is custody which is punishment and protection of the public.  This can only be ordered if it is considered inevitable. If possible, sentencers must use suitable alternatives to custody, such as community sentences. Community Sentences generally fulfil four of the five requirements of sentencing: punishment, rehabilitation, reparation and hopefully reduction in crime: they don’t always protect the public although orders such as curfew can be used. John stated that community sentences are a really good sentence and that’s what magistrates like to use if possible.

However, magistrates need to have confidence in Community Sentences and that is the first problem. John felt that magistrates, and possibly judges too, have lost confidence in Community Sentences. The split between the National Probation Service and Community Rehabilitation Companies has resulted in the National Probation staff appearing before magistrates in court to present the pre- sentence reports, not being the people who will be delivering the sentences. John said that magistrates know the probation officers, as they see them regularly and trust them and they write good pre- sentence reports. In the past they were the ones delivering the sentences, now it is the Community Rehabilitation Companies which until recently magistrates had no contact with.

John explained that magistrates read the reports that are presented by the National Probation Service in the courts and usually, but not always, follow the report’s recommendations. However they are concerned as they do not have direct contact with the Community Rehabilitation Companies and are hearing rumours, or indeed reports, that supervision is not always what it should be. Whether those rumours are true or not they don’t really know. However they read the newspapers and read the reports by HM’s Inspection of Probation and find that supervision is unimpressive and breaches are often ignored. This has resulted in a lack of confidence in Community Sentences.

John emphasised that magistrates have to make a decision in court and if they have no confidence in Community Sentences offering robust alternatives to custody, they may impose a custodial sentence. But where possible, they want to order a Community Sentence as they know these can be the most effective way of rehabilitating somebody.  

Another problem in that the Rehabilitation Activity Requirements (RARS) are administered by the Community Rehabilitation Companies. The probation staff are the experts and they should know how best to treat a person. But the problem is that Community Rehabilitation Companies decide what happens in the RARs and magistrates don’t know what it involves. This is another reason why magistrates don’t have as much confidence as they used to have. John went on to discuss the problems with breaches. He said that magistrates were finding that for many offenders who are breached, when you looked at the detail they should have been brought back a long time ago. This was another thing undermining the confidence of magistrates.

John presented a wish list for what can be done to restore confidence in community sentences. First, to reintroduce communication with Community Rehabilitation Companies.  This is actually happening. The Senior Presiding Judge has said very recently that magistrates can go back to some local liaison with probation and for sentencers. This is a major advance. Second, to be able to monitor sentences. Magistrates feel very strongly that if they could keep an eye on offenders there is a good chance that the offender will keep on the straight and narrow much more than if you just say goodbye to them once they leave the court and don’t see them again unless they breach their sentence.  That means enacting section 178 of the Criminal Justice Act 2003 which is on the statute books but hasn’t been signed off. If we could monitor, and that particularly applies to the youth court, to young offenders, we think that could be helpful. And we would like the pre- sentence report to explain what provision is available to us.

John was keen for there to be real alternatives to custody available. He suggested a new moniker: REAL = robust, effective, available and logical. Magistrates would like to have the ability to provide bespoke community options for certain cohorts.

To conclude, John stated that if there were proper alternatives to custody that would certainly reduce the number of short-term sentences. Also, if s.178 was enacted and sentencers could monitor offenders that might reduce short sentences. Furthermore, if there were bespoke community options for specific cohorts such as repeat offenders that could also reduce the volume of short sentences. Also it would be beneficial if sentencers were required in court to announce why a short custodial sentence is deemed inevitable, because sometimes there is a good reason behind the decision. This would also allow proper assessment as to why short-term custody is being ordered.

The Magistrates Association is producing a report next week called ‘Confidence in the Community’ which brings together all the research the Association has done over the last few years into Transforming Rehabilitation and Community Sentences and will send a copy to the APPG on penal affairs.

Lord Ramsbotham thanked John Bache for his talk. Lord Ramsbotham is currently conducting the Labour Party’s review of the future of the probation service and expressed his gratitude for the response received from the Magistrates Association.

Lord Ramsbotham introduced Jim Barton, Director of the Probation Programme at the Ministry of Justice and thanked him for coming to the meeting.

Jim Barton introduced himself and explained he has eight years’ experience as a probation officer. Jim has spent the last 18 months working with colleagues to look at what can be done in response to the challenges in the Community Rehabilitation Company contracts.

In June of this year the Justice Select Committee published a report of its inquiry into the government’s Transforming Rehabilitation programme. It recommended some short and medium term solutions to address the serious issues that have arisen as a result of these reforms. The Ministry of Justice has decided to terminate the contracts in 2020 before they were due to expire in 2022.

The problems faced by the probation service are fully described in the Justice Committee report and also in the Public Accounts Committee report published in January. Jim referred to some of the problems that were discussed earlier in the meeting and how the reduction in community orders meant the value in those CRC contracts fell by a third within their first year. This created a situation where the commercial providers were being expected to run services at a considerable loss.

The MoJ took steps last summer to renegotiate the contracts in response to those issues, an adjustment worth just over £270 million. At the time the department thought this would achieve the necessary conditions for stability. However the CRC performance in reducing reoffending, particularly the number of times an offender reoffends, meant that providers were facing considerable loss for the remaining life of the contracts and the position became untenable. Hence the decision with Ministers to end the contracts early and replace them with professional arrangements which would incorporate lessons learned.

Jim was clear that the department is very focused on restoring sentencers’ confidence in community sentence. The Secretary of State, David Gauke, has been very vocal about his commitment to reduce the volume of short custodial sentences. After four years of structural upheaval it has been decided not to make significant changes to frontline services. Instead  the department will respond to specific issues and problems that have been identified and focus on the basics of good probation delivery in the contractual arrangements. Jim discussed how the TR contracts were publicly described as ‘black box’ contracts where providers were free to choose how to deliver their service. Jim concurred there was a fair amount of leeway for space and innovation around rehabilitation activity but basic standards had often been dropped. Now it is recognised that there needs to be more consistent frameworks as to what constitutes an effective rehabilitation requirements or interventions, so that sentencers have confidence in both the punishment and the rehabilitation elements of a sentence.

Rehabilitation Activity Requirements will be more tightly specified from now on and linked to clear instructions on the form and frequency of supervision by the probation service. In order to stabilise provision in the interim, the department has introduced a requirement that all offenders will be offered at least a month of face to face contact in the first 12 months of an order or licence for the duration of the contracts until they cease in 2020.

Jim was able to confirm that there are now mandated specifications and requirements that all providers will be expected to deliver in order to create a baseline position that sentencers and the department can have confidence in. Jim emphasised that he absolutely agrees that the TR model has created numerous challenges, thorough implementation rather than by design. Jim acknowledged that others may disagree with this assessment.

Another development is introduction of CRC staff into some courts  magistrates courts in particular, to ensure sentencers have effective information at the point of sentence around the interventions available. The CRC staff will be there to answer questions and give a view on why a specific intervention might be appropriate.

More generally Jim said there are numerous things the department can do to integrate provision without going through fundamental structural change. The plan is to do that by bringing the public level service and the commercial level service under a single Probation Service Leader who will oversee the ten proposed regions.

Jim acknowledged that the ten regions are not aligned with the way other parts of the Criminal Justice System are organised. PCCs are lobbying understandably for the department to move to a model of 42.  However the department does not believe that is possible within a reasonable span of control. However it does agree that PCCs need to have a stronger voice in the commissioning process for local services that underpin the statutory provision of the NPS and CRCs.

The department recognises that 2020 is quite a way away and that over two years 300,000 offenders will potentially cycle through the system. Everything needs to be done to increase stability. In addition to the requirement for a minimum of face to face contact the department is also investing in Through the Gate provision which the HM Inspector of Probation has rightly raised concerns around. An extra £22 million pounds per year for the next two years has been allocated.

Jim stated that they will also make changes to the Payment by Results mechanism. The reason for doing this is that as things stand the department is holding providers to account for a deterioration of reoffending frequency rates that happened before their watch and therefore are being financially penalised for something that they have no control over. Jim commented that this feels like a perverse thing for the department to do in the context of a system that is not fully funded.

To conclude Jim explained where the department is in process terms. There were 470 responses to the consultation which closed on 21 September 2018 and they are working their way through them and have a series of discussions planned with Ministers and others across Whitehall plus engagement with staff and stakeholders. The public response to the consultation will be published in April 2019.