The role of the Probation Service - Justice Committee Contents


1  Introduction

Why probation?

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 £884 million.[1]

2.  The derivation of the word probation is from the Latin probatio—a 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.[2] 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 2003—has 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 trusts.

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.[3]

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 delivered?
  • 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 sentences?
  • 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 risk offenders?

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.

Context

7.  In its January 2010 Report, Cutting crime: the case for justice reinvestment,[4] 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 of communities.
  • The overall system seemed to treat prison as a 'free commodity'—even if not acknowledged as such—while 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 justice?
  • 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 sentences—instead, tougher, better community punishments will help stop offenders in their tracks earlier to stop them committing more crime."[5] 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.

Recent developments

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.[6] 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 TRUSTS

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.[7]

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 conditions.

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):

  • supervision;
  • unpaid work—between 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 centre—under-25s only, 12-36 hours duration. Not available in many areas;
  • curfew—which 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 activity—requirement lasts up to 60 days, e.g. basic or life skills or employment, training and education (ETE);
  • residence—specifies 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 treatment—treatment with a named medical practitioner;
  • alcohol treatment;
  • drug rehabilitation; and
  • programme—requirement 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-association—can be used to prevent offenders associating with other known offenders;
  • contact—e.g. contact with a named psychiatrist;
  • prohibited contact—e.g. 'not to seek to approach or communicate with named person';
  • prohibited residency—prevents an offender living at specific addresses and with specific people, e.g. children under a certain age; and
  • bespoke condition—in 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 system—and in particular prisons and probation—to 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.[8] 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 NOMS

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.[9] 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. Rehabilitation—Breaking 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 prisons; and
  • deliver central system-wide operational services.

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".[10] 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.[11] 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.[12] 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 work.


1   Ev 167, paras 5-6 Back

2   Qq 77, 94 Back

3   Ministry of Justice, Breaking the Cycle: Effective Sentencing, Punishment, Rehabilitation and Sentencing of Offenders, Cm 7972, December 2010 Back

4   Justice Committee, First Report of Session 2009-10, Cutting Crime: the case for justice reinvestment, HC 94-I Back

5   Ministry of Justice, Breaking the Cycle: Government Response, Cm 8070, June 2011, p 1 Back

6   Patrick Carter, Managing Offenders, Reducing Crime: A new approach, London, 2003, p 34 Back

7   HC Deb, 29 January 2008, c8 WS Back

8   HC (2009-10) 94 Back

9   Ministry of Justice, National Offender Management Service Business Plan 2011-2012, April 2011

 Back

10   New rights and support for staff mutuals, Cabinet Office press release, 17 November 2010  Back

11   Ev 171 Back

12   Home Office, Reducing Crime, Changing Lives, January 2004, p 14 Back


 
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© Parliamentary copyright 2011
Prepared 27 July 2011