1 Introduction |
1. The effective use of probation is an essential
part of the criminal justice system. Probation services are provided
by 35 probation trusts across England and Wales. These trusts
are responsible for overseeing offenders released from prison
on licence and those on community sentences. On 31 December 2009,
241,500 offenders were under supervision. Probation staff also
prepare pre-sentence reports for sentencers to enable them to
choose the most appropriate sentence. In 2009, the Probation Service
prepared 218,000 such reports. The provision of such a
service is not cheap: the initial 2010-11 budget allocation for
delivery of probation services (before changes made in the June
2010 emergency Budget and the Spending Review settlement) was
2. The derivation of the word probation is from
the Latin probatioa time of testing, or proving.
That derivation remains relevant because, at their best and most
robust, community sentences run by the probation service will
test offenders, challenging them to change their offending lifestyles
and to confront difficult issues. Such sentences, when properly
carried out, bear little resemblance to the hackneyed and lazy
depiction of non-custodial sentences as a 'soft touch'. Indeed,
evidence we heard from ex-offenders suggested that some people
would rather go back to prison than have to serve a community
sentence and have committed offences in order to do so.
One of the key challenges for the system is to make sure that
all non-custodial sentences are appropriately rigorous and demanding.
3. The probation service which manages those
sentences has undergone extensive change in recent years: following
the creation of NOMS which brought together prisons and probation
in 2004, the previous Government carried out a programme of reform,
converting probation boards into probation trusts, which are contracted
by the Secretary of State to provide and commission local probation
services. This was to be followed by the introduction of competition
for some aspects of delivery. In addition, the concept of "end-to-end
offender management"first proposed by Patrick (now
Lord) Carter in 2003has evolved considerably since the
Offender Management Act 2007 was passed. By April 2010, after
a demanding and rigorous process of demonstrating their suitability,
all probation areas in England and Wales had become probation
4. The current Government has made it clear that
further dramatic changes will be made to the punishment and rehabilitation
of offenders, with a view to:
- making punishments demanding,
robust and credible;
- improving how we reform offenders
to keep the public safe, cut crime and prevent more people from
becoming victims; and
- making offenders pay back to
victims and communities for the harm they have caused.
5. In view of the centrality of probation to
an effective criminal justice system, the extensive changes which
have been made to the system in recent years, and the prospect
of further significant reform to come, the Committee decided to
undertake an inquiry into the role of the probation service. We
were particularly interested in receiving evidence which addressed
the following questions:
- Are probation services currently
commissioned in the most appropriate way?
- How effectively are probation
trusts operating in practice? What is the role of the probation
service in delivering "offender management" and how
does it operate in practice?
- Are magistrates and judges
able fully to utilise the requirements that can be attached to
community sentences? How effectively are these requirements being
- What role should the private
and voluntary sectors play in the delivery of probation services?
- Does the probation service
have the capacity to cope with a move away from short custodial
- Could probation trusts make
more use of restorative justice?
- Does the probation service
handle different groups of offenders appropriately, i.e. women,
young adults, black and minority ethnic people, and high and medium
6. We issued our terms of reference in July 2010
and subsequently received more than 80 submissions of written
evidence, from a wide range of individuals and organisations.
We held 12 oral evidence sessions, hearing from: commissioners,
providers and users of services; partners (such as the police,
and health care providers); and ministers and officials. In addition
to sessions at Westminster, we took evidence in Brighton, which
helped us get a useful snapshot of how things are working in one
area on the ground. We visited the London Probation Trust and
heard about their Diamond Project and saw some of their community
payback work. We also held an e-consultation, and the key issues
emerging from it are described in the annex to this Report. We
are very grateful to everyone who gave us written or oral evidence
and to those who contributed to our e-consultation. We are particularly
grateful to Helen Boocock, a former member of the Probation Inspectorate,
and Professor Robert Canton, Head of Research in Community and
Criminal Justice at De Montfort University, Leicester, who served
as Specialist Advisers to the inquiry.
7. In its January 2010 Report, Cutting crime:
the case for justice reinvestment,
our predecessor Committee encouraged the then Government to
look at criminal justice through a lens that reflected the costs
and benefits of existing policy and to reconsider sentencing,
enforcement practices and existing efforts to reform offenders
in an effort to reduce the huge growth in the criminal justice
budget. The Committee extensively rehearsed the strong fiscal
reasons for tackling re-offending more effectively and concluded
that any new Government could not continue to allow the resources
needed for probation, and wider community rehabilitative provision,
to be diverted into the spiralling costs of imprisonment.
8. The Report concluded that:
- There should be significant
strengthening of community rehabilitative provision to enable
probation to focus on the management of high risk offenders. The
underlying needs of many persistent offenders who cause the most
problems to local communities could be managed more coherently
in the community. Prison resources could then be focused on higher
risk offenders and, when they left custody, there would be better
community provision for resettlement. All of which would improve
effectiveness in reducing re-offending, improve public safety
and reduce the prison population.
- The lack of probation staff
at a senior level in NOMS suggested a lack of advocacy on behalf
of probation for better resources. There was no evidence to suggest
that bringing together prisons and probation had yet had a positive
impact; in fact the available evidence on the financial outcomes
of the merger pointed to the contrary.
- There was a very strong financial
case for investing substantial resources in more preventative
work with: former offenders; those with drug and alcohol problems;
people with mental ill-health; and young people on the outskirts
of the criminal justice system or those who had been in custody.
- Punishment provided no assurance
of preventing further crimes, and if other purposes, including
reform and rehabilitation and reparation to victims, were given
higher priority, sentencing could make a much more significant
contribution to reducing re-offending, to helping victims recover
from those crimes that had taken place and to improving the safety
- The overall system seemed to
treat prison as a 'free commodity'even if not acknowledged
as suchwhile other interventions, for example by local
authorities and health trusts with their obligations to deal with
problem communities, families and individuals, were subject to
budgetary constraints and might not be available as an option
for the courts to deploy.
- The Government should go much
further in reducing the numbers of entrants and re-entrants to
the criminal justice system. More emphasis must be placed on ensuring
that the criminal justice system is effective in reducing re-offending,
diverting people into appropriate support and embracing wider
shared responsibility for reducing offending by tackling underlying
causes within local communities and by early intervention in the
lives of those who are in danger of falling into criminality from
an early age.
- Resources must be shifted into
targeting the reduction of re-offending on a much broader scale,
taking a whole systems approach, which applied the best available
research evidence to determine the most appropriate allocation
of resources both between prisons and probation and outwith the
criminal justice system.
9. The current Government appears to have accepted
much of the Committee's analysis and we consider in this Report
some elements of the strategy outlined in the green paper Breaking
the Cycle, published in December 2010, that seeks to control
the use of custody by placing a greater focus on reducing re-offending
and policies that are most likely to prevent existing offenders
from creating more victims. In particular we focus on the proposed
new arrangements for commissioning probation services, reforms
to strengthen community sentences and the Government's pledge
to provide frontline professionals with: greater discretion in
how they manage offenders; fewer targets for providers; and less
prescription in the way that different agencies work together.
The Government wishes to introduce a 'rehabilitation revolution'
that will pay independent providers and existing probation trusts
to reduce reoffending, paid for by the savings this new approach
could generate within the criminal justice system.
10. Following the publication of the green paper
we issued a further call for evidence on relevant proposals:
- What are the relative merits
of payment by results and place-based budgeting models as means
to encourage local statutory partnerships and other agencies to
reduce re-offending? What can be learnt from the implementation
of payment by results models in health and welfare reform? What
results should determine payment in applying such a model to criminal
- What freedoms would probation
trusts like to have to enable them to manage offenders and reduce
re-offending more effectively?
- The Government proposes a lead
provider model and suggests that commissioning for the delivery
and enforcement of sentences and for efforts to reduce re-offending
will not be separated. What is the appropriate role for probation
in such a model?
11. As we concluded this inquiry the Government
issued its response to the consultation on the green paper. In
that response, the Secretary of State said that "community
sentences have not won public confidence as a punishment"
and that the Government would "overhaul the way community
sentences are used. Offenders will serve longer hours, carrying
out purposeful, unpaid activity which benefits the local community,
over the course of a working week of at least four days. We will
make more use of electronic tagging and longer curfew. Community
sentences will not be pushed as a replacement for prison sentencesinstead,
tougher, better community punishments will help stop offenders
in their tracks earlier to stop them committing more crime."
Further reforms are planned, including the publication of a competition
strategy for prisons and probation and the introduction of new
business models, including social enterprises, co-operatives and
mutuals, to the public sector.
12. In this section we explore the recent history
of Government initiatives and associated developments relating
to the probation service.
A national probation service
13. Until 2001, the 54 Probation Services had
been independent bodies corporate. Probation
officers had originally been appointed by their local courts.
As the Services evolved, Probation Committees, constituted mainly
by Justices of the Peace, were not only employers but, through
and with the Principal (later Chief) Probation Officer, were responsible
for policy and direction. Local authorities were represented on
the Committees, partly because of the financial contributions
they made to probation, but also in recognition of the local interest
in and responsibility for the work of the Services and their accountability
to the communities they served.
14. In 2001 a National Probation Service for
England and Wales was created in the Criminal Justice and Court
Services Act 2000 and its first Director, Eithne Wallis, appointed.
Accountable to the Secretary of State, the Director was tasked
to offer clear leadership to bring about greater consistency and
rigour in policy and practice. These reforms were happening as
the probation service appeared to be gaining confidence in its
effectiveness, partly as a result of the "what works"
debate, which seemed to suggest that if programmes were implemented
as designed and targeted at the right offenders, a measurable
reduction in reconvictions could be shown to be achieved.
The Carter Report
15. In March 2002, the then Government asked
Patrick Carter (later Lord Carter of Coles) to review correctional
services in England and Wales. The Carter review mainly took place
inside government, with little wider consultation. The resulting
report, Managing Offenders, Reducing Crime: A new approach,
published in January 2004, had two guiding ideas: one was the
need to break down 'silos' between prison and probation; the second
was the introduction of what Carter referred to as "greater
contestability, using providers of prison and probation from across
the public, private and voluntary sectors" which he felt
would lead to a more effective delivery of services.
The report also emphasised the need for the "end-to-end management"
of offenders. It proposed the creation of a National Offender
Management Service and the Government accepted the idea enthusiastically,
establishing NOMS in 2004. 14,000 staff subsequently moved to
NOMS Headquarters, although the Prison Service and the Probation
Service also retained their headquarters.
CREATION OF THE NOMS AGENCY AND PROBATION
16. While NOMS was established in 2004, in order
fully to realise the objectives of the Carter review, further
reform and legislation was required. The statutory duty to arrange
provision of probation services was the responsibility of local
Probation Boards and this stunted the growth of contestability.
However, the Offender Management Act 2007 transferred this responsibility
to the Secretary of State who was thus empowered to commission
most services directly, not only from public sector providers,
but also from the private and voluntary sectors.
17. Following a further report from Lord Carter,
on 1 April 2008, the National Offender Management Service was
established as an agency, merging the Prison Service and NOMS
in its earlier iteration. The then Justice Secretary said that
the new agency would:
allow NOMS to build on this success and take forward
Lord Carter's proposals for streamlining management structures
and reducing overhead costs. We will bring NOMS and the Prison
Service together, and streamline the headquarters so as to improve
the focus on frontline delivery of prisons and probation and improve
efficiency. The chief executive of the restructured NOMS will
run public prisons and manage performance across the sector, through
service level agreements and formal contracts with probation boards
and trusts, private prisons and other service providers. Having
commissioning and performance management for both prisons and
probation in a single organisational structure will further drive
forward joined-up offender management and deliver essential savings.
The new Director General for Criminal Justice and Offender Management
Strategy will set the strategic direction for offender management
and regulate the increasingly diverse range of providers and work
with the judiciary on the proposals for a sentencing commission.
18. The 2007 Act also triggered the process by
which probation boards have transformed into probation trusts.
For boards to do so, they had to demonstrate high performance
against a number of assessed areas, including leadership, performance
management, local engagement and effective resource use. The first
six of the current 35 trusts were established in April 2008.
Community orders and licences
19. The reforms underway at this time were not
restricted to the organisation of the probation service. Changes
were also made to the types of sentences that service was expected
to enforce. The Criminal Justice Act 2003, implemented in April
2005, changed community sentences significantly. The community
rehabilitation order (previously the probation order) and community
punishment (initially called community service) were abolished
and replaced with a single community order which can be given
for up to three years. On a community order, supervision by the
probation service can be combined with any of 11 other possible
requirements and some, for example, unpaid work, curfew and certain
programmes, can "stand alone" without supervision. Requirements
can be constructive, for example, drug or alcohol treatment
or restrictive, for example, prohibited activity and curfew. Restrictive
requirements or conditions are used most often in licences. Requirements
can also be intended primarily for punishment and/or reparation,
for example, unpaid work. The Act also introduced the suspended
sentence order upon which the court may impose the same range
of requirements. (The difference between this and a community
order is that an immediate custodial sentence should follow any
breach, although in practice this is by no means always the case.)
Prisoners are released on licence if they are under 21 or
are serving a sentence of over 12 months and aged 21 and over.
There is a standard set of 6 conditions in most licences. They
specify the requirement to have contact with, and receive visits
from a named offender manager, reside at an address detailed in
the licence, and only take approved work, not to travel outside
the United Kingdom and to be of good behaviour. They may have
a number of additional conditions added at the request of their
offender manager or the Parole Board. Prisoners on release may
have conditions imposed upon them, usually for public protection,
that they object to, including place of residence. There is considerable
professional skill required to work with someone who resents their
20. The requirements or conditions attached to
community orders or licences can include any of the following
(which may also be imposed with electronic monitoring):
- unpaid workbetween 40
and 300 hours. Originally called and often still referred to as
Community Service, this has been re-branded as Community Payback
by NOMS but is still technically called unpaid work;
- attendance centreunder-25s
only, 12-36 hours duration. Not available in many areas;
- curfewwhich must be
imposed with electronic monitoring;
- exclusion(more often
used with licences) relates to exclusions from a specified place
or area, e.g. named public houses, swimming pools, etc.;
- prohibited activity(more
often used with licences) offenders can be prevented from undertaking
certain activities, e.g. not to undertake work or other organised
activity which will involve contact with a person under a specified
age, not to use directly or indirectly a computer, not to own
a phone with a photographic device, etc.;
- specified activityrequirement
lasts up to 60 days, e.g. basic or life skills or employment,
training and education (ETE);
- residencespecifies a
named address and period of time (up to 36 months for community
orders) where they should live, e.g. approved premises, hostel
or rehabilitation centre;
- mental health treatmenttreatment
with a named medical practitioner;
- alcohol treatment;
- drug rehabilitation; and
to include attendance at a nationally accredited programme of
work which addresses offending behaviour, e.g. attendance at a
general offending behaviour programme or a more specific programme
such as a community-based sex offender programme.
The following conditions relate to licences only:
- offence-related work;
- non-associationcan be
used to prevent offenders associating with other known offenders;
- contacte.g. contact
with a named psychiatrist;
- prohibited contacte.g.
'not to seek to approach or communicate with named person';
- prohibited residencyprevents
an offender living at specific addresses and with specific people,
e.g. children under a certain age; and
- bespoke conditionin
exceptional circumstances these can be added with the agreement
of the Licence Release and Recall Section of NOMS.
NEW LOCAL GOVERNANCE ARRANGEMENTS
21. Since Lord Carter's report urging the different
parts of the criminal justice systemand in particular prisons
and probationto work closer together in rehabilitating
offenders and protecting the public, the local framework for reducing
crime and re-offending has been considerably strengthened. Our
predecessor Committee concluded that the development of new local
commissioning processes, coupled with national guidance on best
practice, had had limited success in encouraging mainstream providers
to fund provision to address offending-related needs in the community.
On the other hand, they believed that there was considerable promise
in new arrangements to provide stronger mechanisms for greater
investment in community provision. The Policing and Crime Act
2009, implemented in April 2010, gave community safety partnerships
and their component agencies, including probation services, statutory
responsibility for reducing re-offending. We consider in this
Report emerging evidence of the positive impact that this has
had on partnership practices.
POST-ELECTION RE-ORGANISATION OF
22. NOMS will be reorganised again in 2011-12,
building on interim changes, already implemented, which have reduced
the number of Director posts by seven and restructured senior
management along functional lines from April 2011.
Four new national directors will be responsible respectively for:
commissioning services; managing public sector prisons; managing
contracts in probation and with the private/third sector; and
delivering central system-wide services. NOMS aims to focus its
resources on the front-line, cutting back office costs by at least
a third over the period of the Spending Review. By 2014-15 NOMS
is seeking to achieve a reduction of 37% in HQ and central services
expenditure and efficiency savings of around 10% in front-line
services in prisons and probation trusts. Further savings will
be achieved through reductions in capacity as the population allows.
HQ reductions have been frontloaded to reduce the burden on the
front line ahead of policy changes which are anticipated to reduce
the prison population from 2012-13 onwards.
23. NOMS has eight business priorities for 2011-12,
relating to its agendas for transformation and operational delivery:
1. RehabilitationBreaking the Cycle.
2. Re-balancing capacity.
3. Commissioning and competition.
4. Organisational restructure.
5. Delivering the punishment and orders of the courts.
6. Public protection.
7. Reducing re-offending.
8. Improving efficiency and reducing costs.
24. NOMS will be responsible for the implementation
of the competition strategy referred to above. In the meantime,
NOMS is continuing to "press ahead" in using competition
to help deliver more cost effective services. It has begun the
process of launching community payback competitions; the first
contract will be awarded by November 2011 and work on the remaining
five contracts in 2012. In terms of the delivery of offender management
services, the NOMS Agency's role will be to:
- commission services;
- manage public sector prisons;
- manage contracts in probation
and with our private/third sector providers including private
- deliver central system-wide
Wider public service reform
25. In November 2010, Cabinet Office Minister
Francis Maude proposed that the public sector, including probation
services, should develop co-operatives and mutuals to "challenge
traditional public service structures and unleash the pent-up
ideas and innovation that has [sic] been stifled by bureaucracy".
The Ministry of Justice intends to explore the scope for new business
models to give public sector workers greater independence in managing
the services they deliver, citing the examples of social enterprises,
co-operatives and mutualisation and NOMS will provide support
to probation trusts and staff groups interested in developing
these new models.
While some of our witnesses welcomed these opportunities, we did
not focus on these issues in our inquiry in view of the more immediate
uncertainty around governance arrangements for probation trusts
as they currently exist.
The longer term direction of reform
26. There are numerous similarities between the
current Government's stated aims and those of the previous Government
when it was seeking to develop a market for the provision of correctional
services. In 2004 the then Government stated that it did not matter
whether the public, private or voluntary sector provided services
as long as they were cost-effective.
At the heart of NOMS was the premise that the market depended
on a purchaser-provider split i.e., the separation of the management
of offenders from the provision of services. In a similar vein,
the current Government wishes to test where the private, voluntary
or community sectors can provide rehabilitative services more
effectively by 2015 but proposes a different model of commissioning
which will allow the management of offenders to be open to competition.
In addition, Reducing Crime, Changing Lives, envisaged
that the market would enable services to be purchased based only
on their cost-effectiveness in reducing re-offending. The current
Government is also seeking to introduce payment by results for
probation trusts and other providers for certain aspects of probation
1 Ev 167, paras 5-6 Back
Qq 77, 94 Back
Ministry of Justice, Breaking the Cycle: Effective Sentencing,
Punishment, Rehabilitation and Sentencing of Offenders, Cm
7972, December 2010 Back
Justice Committee, First Report of Session 2009-10, Cutting
Crime: the case for justice reinvestment, HC 94-I Back
Ministry of Justice, Breaking the Cycle: Government Response,
Cm 8070, June 2011, p 1 Back
Patrick Carter, Managing Offenders, Reducing Crime: A new approach,
London, 2003, p 34 Back
HC Deb, 29 January 2008, c8 WS Back
HC (2009-10) 94 Back
Ministry of Justice, National Offender Management Service Business
Plan 2011-2012, April 2011
New rights and support for staff mutuals, Cabinet Office
press release, 17 November 2010 Back
Ev 171 Back
Home Office, Reducing Crime, Changing Lives, January 2004,
p 14 Back