The role of the Probation Service - Justice Committee Contents

5  Reforms to community sentences

The Government's proposals

161.  The Secretary of State's foreword to the Government's response to Breaking the Cycle, published at the end of our inquiry, summarised his proposals for reform to community sentences:

Community sentences have not won public confidence as a punishment. There are too many cases where community orders require only 'supervision' by a probation officer—perhaps one meeting a fortnight. We will overhaul the way community sentences are used. Offenders will serve longer hours, carrying out purposeful, unpaid activity which benefits their local community, over the course of a working week of at least four days. We will make more use of electronic tagging and longer curfews. 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.[206]

Other proposals in the Breaking the Cycle consultation included:

  • changing community orders to give providers more discretion to supervise offenders and secure the best reduction in reoffending;
  • encouraging use of fines and improve their collection;
  • ensuring that offenders make amends for their crimes and better repair the harm they have caused to victims and society as a whole; and,
  • diverting many offenders with mental health, alcohol or drug abuse problems into treatment programmes.

162.  This package of reforms is remarkably similar to those that the previous Government sought to implement throughout the last decade and which our predecessor Committee reviewed in its reports Towards effective sentencing and Cutting crime: the case for justice reinvestment. For example, NOMS was created with the assumption that sentencers would impose fewer short prison sentences and its failure is due in part to measures to implement this not taking place.[207] Despite the introduction of "tougher" community sentences and relatively sizeable reductions in reoffending rates in the community, the impact on prison places has been comparatively small due to an increase in the use of custody and especially an increase in the length of sentences.

Reducing the use of short-term imprisonment

163.  Witnesses, including trusts, the Probation Association, Napo, UNISON, magistrates, and the Criminal Justice Alliance, supported the Government's intention to reduce the use of short-term prison sentences for those offenders for whom community sentences may be more effective but agreed that the probation service has limited financial capacity to cope with any increase in demand that may result.[208] There is a willingness on behalf of magistrates to make less use of such sentences, provided that appropriate options are available to them in the community.[209] A Comres survey for Make Justice Work showed that business leaders support community sentences as a more cost-effective way of dealing with low-level offenders than prison.[210] Napo's report Short-term jail sentences: an effective alternative examined 170 case histories of short-sentence prisoners where the court report writers had recommended non-custodial options and concluded there was "substantial potential" for alternative arrangements.[211]

164.  There are a number of potential means of freeing capacity to enable probation trusts and their partners to concentrate on those offenders who are currently subject to short prison sentences, some of which are proposed by the Government above, and these received support from many of our witnesses.

i.  diversion of lower-risk offenders from courts and probation, through the police and Crown Prosecution Service, for example, restorative justice approaches could be made more widely available as an alternative to prosecution, and greater use made of fines or curfews;[212]

ii.  reduction in levels of supervision for lower-risk offenders, facilitated by the relaxation of national standards;[213]

iii.  more flexible use of shorter community orders, including stand-alone requirements, for example, more creative use of specified activity requirements as tested in the IAC pilots; [214]

iv.  more widespread implementation of strong local partnership approaches for those offenders most at risk of receiving short prison sentences;[215] and

v.  better use to be made of existing requirements, for example, mental health and alcohol treatment which tend to be underused.[216]

165.  Achieving the Government's aspiration will require management of existing demand.[217] For example, Bedfordshire Probation Trust believed it would be necessary to "recalibrate the offer to the courts" so that cheaper sentencing options, including attendance centres, fines and discharges, are fully utilised; the range of accredited programmes is reduced, based on an analysis of their cost-effectiveness; and the volume of information given to the court and parole boards is reduced.[218] John Thornhill believed that there was scope for granting professionals greater discretion if it is done in conjunction with courts.[219]

Strengthening community sentences

166.  Witnesses, including the Magistrates' Association, were broadly supportive of the Government's intention to strengthen community sentences by increasing their intensity and immediacy, but some highlighted the cost implications of such an approach.[220] For example, the Howard League called for community sentences to commence in the week after sentencing or no longer than four weeks after sentencing for specialist programmes, noting that community sentences "face a problem in the public eye in terms of their immediacy…delays damage public confidence in community sentencing".[221] Jonathan Ledger advocated both intensive supervision and quick intervention once a sentence has been passed—as not doing the latter affects the motivation of offenders and undermines the confidence of the court—but noted that there are already long delays in the take-up of programmes attached to community orders and that demanding supervision is more resource intensive.[222]

167.  There are a number of risks inherent in strengthening community sentences (something which successive governments have tried to do, with limited success), including an increased propensity for sentencers to use them for offenders who would otherwise have received lesser penalties, and for subsequent sentences to be ratcheted up if offenders fail to comply, known as "net-widening" and "up-tariffing", which may serve to increase demand on the system. [223] For example, Northumbria Probation Trust highlighted the importance of ensuring that any additional use of community sentences is for those who would otherwise have gone to custody rather than those who may have received fines and discharges.[224] We also heard that there is a risk in "overloading" offenders with multiple requirements in an effort to make community sentences tougher as this may increase the risk of breach, which, ironically, can, in turn, result in an increase in custodial sentences. [225]


168.  The Government is critical of high levels of breach—for example, of community payback—which, it suggests, undermines public confidence.

Confidence has been undermined by the fact that community sentences, especially Community Payback, are sometimes not properly completed. In 2008-09 a quarter of offenders on community orders or on licence did not complete their sentence due to breaking the conditions of that order or licence. While most enforcement is satisfactory, this unacceptable breach rate threatens public safety and means that the opportunity to tackle criminal behaviour at an earlier stage is missed.[226]

169.  Supervision requirements are meant to be strictly enforced with a final warning after one unacceptable absence and a return to court after two (two warnings are possible in licences with a direct return to prison after a third unacceptable absence). During the year ending March 2010, 15,004 people had their licences revoked and were recalled to prison.[227] Two witnesses who had had experience of custodial and community sentences told us why they believed breach and recall can happen: "I was told probably two months before release about what I was going to be up against basically. So I knew what I was going to do and I told them before I got released, "I don't think I can do this", you know?" and "I think a big percentage of people who do get released aren't ready to be released or don't have anything set up for them when they are. So when the courts find them back in front of them within the month and they ask themselves why, I think it is quite obvious."[228] Securing people's compliance, encouraging them at times when they feel that changing is beyond them and requiring them to respect the community order requires considerable levels of professional skill.

170.  The increasing demands of National Standards and the removal of almost all local discretion has led to a rise in the number of cases of non-compliance. Clinks summarised how this had happened: "The goal of rehabilitation in working with offenders has had less emphasis than previously, as was inevitable with the shift to a law enforcement ethos. Compliance with the requirements of supervision is now a key objective for the service."[229] The probation service has tried to 'sell' a tough approach to courts and the public through terms such as 'rigorously enforcing compliance'. [230]

171.   Magistrates, probation trusts, Napo and UNISON believed that community sentences can be sufficiently rigorous and demanding and noted that effecting change in offender attitudes and behaviour—frequently from a very low baseline—takes time, patience and focused intervention.[231] There was some concern that the Government did not fully appreciate the difficulties of managing offenders in the community. For example, Napo explained that offenders on unpaid work have disproportionate problems with drugs, alcohol and mental health; they are not a compliant and willing workforce and need to be worked with firmly if they are to comply, and consequently believed that reconviction rates were encouraging.[232] Sonia Crozier similarly observed: "the reason that people are offenders is because they don't follow rules and they don't always comply, so there's that challenge of working with this really difficult group. Let's not forget that by the time they've got to the Probation Service, they have often been failures in every other Government organisation."[233] These witnesses did, however, acknowledge that there was room for improvement, as illustrated in UNISON's eight point community payback improvement plan, for example.[234]

172.  We also heard that there is emerging evidence from intensive alternative to custody schemes that it is possible to design "tough" intensive community sentences which achieve the confidence of sentencers and to which offenders with the most complex needs are able to conform: compliance rates were expected to be around 40%, yet the national average across the pilots was 56%, and in Liverpool it achieved 67%.[235] More intensive measures do come at a higher costs, however. John Thornhill of the Magistrates' Association advocated "incentivised sentencing"—which builds on the concept of problem-solving courts, the principle of judicial continuity, and desistance theory—whereby an offender would be given a 12 month community order, for example, but if there is sufficient compliance that can be automatically reduced by the probation officer or, if there is not compliance, automatically increased. Similarly, if an offender suddenly fails to comply but had been making progress, instead of just assuming they should receive an immediate custodial sentence, the court could look at a staged response, to give the offender a continued incentive to change. In this way, sentencers and probation officers could work together to adjust and amend the delivery of the sentence and the content of the sentence over a period of time in accordance with the shifting needs and circumstances of the individual offender; this need not take place in court.[236]

173.  A conversation with one of the participants of community payback during our visit to a project run by London Probation Trust highlighted the issue of whether community payback should have a punitive function, as well as reparation. While they may be seen as tougher in the eyes of the public, increasing the use of punitive requirements, including electronic tagging, curfews and unpaid work, may have limited value in terms of the reduction of re-offending, and will therefore only be appropriate for some offenders. Napo and UNISON questioned the cost-effectiveness of electronic tagging and curfews, for example, because no effort is made to address the root causes of offending so the effect on re-offending may be limited to the duration of the intervention.[237] The Criminal Justice Alliance cited 2009 research by George Mair and Helen Mills which found that probation officers considered prohibited activity and exclusion requirements to be unenforceable.[238] This may explain low use of such requirements.[239]

174.  On the other hand, increasing the immediacy of the commencement of community sentences has a chance of increasing both public and sentencer confidence in community sentences as alternatives to the imposition of short custodial sentences when a prison van comes to take the offender away. Nevertheless, as our predecessor Committee identified in its reports Towards effective sentencing and Cutting crime, there has been a long-term trend for sentencing to become more and more severe, while the public apparently believes that the opposite is the case.

175.  The use of punitive measures may provide a cheaper yet publicly acceptable alternative to supervision for some offenders, but their use will need to be appropriately targeted, and their benefits carefully explained to the public, as they do not address the root causes of offending. Trusts and sentencers will need to deal more effectively with failure to comply if these measures are to be successful as a practical means of dealing with low level offenders. The Government must also clarify what is meant by more robust community sentences, and the outcomes they are designed to achieve. Making sentences more punitive does not mean that they will necessarily be effective in protecting the public by reducing re-offending.

176.  We endorse the Government's attempt to tackle the factors contributing to the growth in the prison population and probation caseloads in its comprehensive proposals for reform, but the lesson from recent history is that in order to achieve the financial sustainability that it desires, and indeed is necessary, to prevent the need for costly prison building, each element of the reforms must be implemented successfully, and to work coherently together. The strengthening of community orders and reductions in the use of custody are interdependent and both are costly. The Government should clarify how it intends to implement its reforms to community sentences effectively whilst keeping them cost-neutral. It would be a serious error if the Government allowed the search for further savings to replace those it had hoped to achieve from the 50% early guilty plea discount to undermine the development of effective sentencing.


177.  Magistrates have a high degree of confidence in community sentences, and this can be seen in the large number of sentences imposed and the high level of agreement with community order proposals put forward in pre-sentence reports by probation services.[240] As we noted above, their confidence has improved due to better liaison and the Local Crime, Community Sentence Scheme, a joint programme whereby sentencers and probation officers go out to community groups to educate them about sentencing.[241]

178.  Some trusts raised concerns that there is widespread public misunderstanding about probation, for example, about the extent to which trusts are responsible for all the services that contribute to reducing re-offending and about what can reasonably be expected of probation supervision, as well as what constitutes punishment.[242] Sentencers themselves are similarly concerned about the public perception of probation.[243] MORI research suggests that public confidence in the use of community penalties increases the more the public know about them but witnesses highlighted a challenge in improving public perception of probation when their understanding of its operation is so opaque.[244] For example, Christine Lawrie explained:

One of our problems is that if you look at other public services such as health and education, most people have a general knowledge from their own experience of what they are like but most people do not have one about probation. All they get is a diet of largely bad news stories in the press…they have no way of judging whether a probation bad news story is typical…I really urge people to listen to what sentencers say, because they are the ones who know; they have to trust probation to supervise—and they do—and that seems to me the critical issue." [245]

179.  In reality, there are very few bad news stories: Professor Kemshall explained that in 2009, only 0.26% of the probation caseload of almost 180,000 offenders who were supervised in the community, went on to reoffend seriously harmfully.[246] Matthew Lay was unsure whether probation services would ever gain the full confidence of the public: "I do not think we, in terms of probation practitioners, will ever satisfy the need for people to want people to go to prison, which exists in sections of the population. We will never achieve that. We can do better."[247] Tessa Webb similarly observed that despite the fact that enforcement performance in probation services has been strengthened considerably: "[the] toughening up of community sentences is a perennial problem; it has been around for a long time. The public perception is that community sentences are not tough…How do you get across the complexity of changing people's behaviour? It does not sound like a punishment."[248]

180.  Some witnesses were critical of the probation service's management of its public image. Dr Rob Mawby and Professor Anne Worrall defined it as "particularly poor at public presentation".[249] Jonathan Ledger described improving public confidence in probation as "a process, essentially, of education and communication". He, Matthew Lay, and some probation trust chief executives remarked on the way communities had developed greater confidence in community payback as a form of sentence as a result of probation's efforts to engage them and how the confidence of sentencers had increased as a result of closer liaison as examples of this.[250] Clive Martin was also optimistic that more could be done, explaining that in his experience when efforts are made to engage with the public on probation in a managed and structured way the outcome of discussion was almost without exception positive.[251] Several witnesses saw potential for greater community engagement in the criminal justice system, for example, through the provision of volunteering opportunities; this would have the added benefit of capitalising on public confidence and trust in the voluntary sector.[252]

181.  Jonathan Ledger believed that it was as much a political responsibility as one of the service itself: "Occasionally we would benefit certainly from senior politicians saying 'This is a complex area of work. It is a difficult and demanding area of work, but actually it is valuable', rather than falling back on a more, I have to say, tabloid approach to the way we communicate now".[253] Mr Narey explained that there were risks in politicians playing to the media: "The terrible problem with this issue is that you can have very intelligent and sound discussions within Ministries, and certainly historically within this Committee, but you get a very immature discussion in the media and the press. I think that the current Justice Secretary is absolutely right to try to get some measure of management over who goes to prison. He is absolutely right. It is something I believed in passionately, and that belief was the foundation of NOMS [...] You can't feed the appetite of a media frenzy which suggests that more and more people need to be sent to prison. Until you can do that, I don't believe you can get the rational redistribution of resources."[254]

182.   Other witnesses saw potential to improve understanding about probation by placing it in the context of local communities.[255] The Howard League stated: "local communities are the core arena in which to fight a public perceptions battle…if government is interested in emphasising to people the reality of the criminal justice system in England and Wales it must happen on a local level and probation will be the core agent in this regard."[256] Sonia Crozier explained that discussing probation within local partnerships may provide a key to better public understanding: "talking about probation on its own often doesn't make sense when you disconnect it from the other partnerships that we work with".[257] For example, Tessa Webb highlighted that district councils, the primary care trusts and the police had jointly promoted community payback, through local newspapers, poster campaigns, and in direct communication with victims and the public, in Hertfordshire.[258]

183.  Public confidence is arguably most likely to be gained by setting out clearly what community sentences attempt to achieve, by demonstrating that they are implemented efficiently and effectively and also by challenging a naïve confidence in the effectiveness of short custodial sentences. This will call for leadership and courage from politicians and sentencers. There is a risk that the recent public debate on sentencing policies with regard to short custodial sentences could threaten to undermine the whole set of proposed reforms.

The success of the proposed reforms in the context of fewer resources

184.  As with almost all areas of public expenditure, probation services have seen their budgets cut and it is not intended to commit additional resources to payment by results during this spending review. The MoJ asserts that: "[b]y shifting the emphasis away from specific process-related targets towards genuine reductions in re-offending, and implementing a payment structure based on performance against outcomes, we can deliver more effective public services at the same or less cost."[259] However, while trusts agreed that the reduction in central reporting and increased professional discretion has the potential to create some capacity for probation staff to spend more time in direct contact with offenders, for example, by putting less resource into the management of lower risk offenders, Humberside Probation Trust concluded that this was "unlikely to create anything like the capacity required to manage offenders who will have higher risks of re-offending".[260] Matthew Lay of UNISON similarly observed: "if [probation staff] have less time because they have more offenders, [greater flexibility] becomes a bit of a pointless exercise […] if staff are going to engage more effectively with offenders in terms of face-to-face engagement, they have to have the time to do that."[261]

185.  We heard that there are limits to what can be achieved by way of providing effective alternatives to short-prison sentences within existing and diminishing resources. Make Justice Work believed there is a "real danger" that appropriate community alternatives to short-term prison sentences might not be put in place speedily enough to deal with any changes in sentencing behaviour.[262] Other witnesses agreed that the combined effect of cuts on local agencies is likely to have a significant impact on local provision.[263] The availability of resources thus limits the capacity of local programmes designed to reduce the use of custody to operate at their full potential. For example, Jonathan Ledger explained: "if the probation service is not able to provide the range of alternatives, there must be a risk that sentencers will have to fall back on short prison sentences".[264]

186.  It must also be acknowledged that some approaches designed to reduce the volume of demand on the system via the courts require new legislation and others, including nationwide roll-out of mental health liaison and diversion schemes, will take some time to come to fruition.[265] There may also be delays in any increase in the use of new measures while sentencers, the police and the Crown Prosecution Service, gain greater confidence in them. In addition, we heard that in the context of cuts in magistrates' court budgets, which are resulting in reductions in the number of magistrates, the capacity of sentencers to stay as aware of—and hence maintain confidence in—local initiatives that are available to the courts may be diminished.[266]

187.  It was repeatedly suggested by our witnesses that a transfer of resources from prisons to probation would be required to support a reduction in short-custodial sentences on the basis of community sentencing.[267] David Chantler explained:

If we were to take up all of the strain in the system from not having short sentences—I know the Government are not proposing not to have any short sentences—clearly we would struggle. The question is: what is the "break even" from the saving from the system in reducing the amount of short sentences and giving us enough to be able to cope? I would suggest, from our experience, a contribution to deciding that point is the way in which other agencies can be used to do a lot of the day to day work […] There are some very simple, straightforward interventions that will make significant changes. If, as part of the shift from short sentences to being picked up in the community, we also have the freedom and the ability to manage the money [currently allocated to short prison sentences] to engage in that sort of commissioning, we can do a lot with it.[268]

188.  Thus, the model of justice reinvestment explored by our predecessor Committee—of greater investment in a package of reforms to reduce the use of custody, including increased spending on probation services, allowing significant resources to be freed by halting the prison-building programme and enabling current inefficient prisons to close—has not been fully exploited; this will undoubtedly impede the pace at which capital can be transferred from prisons to community-based interventions and will therefore continue to leave probation services and local communities deprived of desperately needed resource.

189.  Although there are limits to the extent to which the Government's reforms can be effective within limited resources, there is scope for cost savings within the structure of NOMS and the prison service. We refer later to the powerful case for better integrating the commissioning of prisons and probation. If the resources for more intensive and tougher community sentences are not found, increases in the use of short-term custody by the courts will continue. This is a vicious circle in which the criminal justice system has been trapped for too long. The Government wishes to break this cycle, as its Green Paper indicates. This will not happen without a shift in the use of scarce resources.

206   Ministry of Justice, Breaking the Cycle response, p 1. Back

207   Q 466 Back

208   Ev 173; w24; w52; 216; w89; w93; w95;  Back

209   Ev 219 Back

210   Ev w21 Back

211   Ev 184 Back

212   Ev 196; 156; w35; w55; w125  Back

213   Durham Tees Valley Probation Trust cited research evidence that managed properly, and in partnership, levels of probation supervision for low risk offenders can be safely reduced. Back

214   Ev w95; see also Ev 184 Napo calculated that an extra £50m would allow for 1000 additional staff to support extending such an approach to those currently receiving short prison sentences, therefore yielding substantial savings. Back

215   Ev w99  Back

216   Ev w59; w70; w89  Back

217   Ev 156 Back

218   Ev w144 Back

219   Qq 575-7 Back

220   Q 568 Back

221   Ev 203 Back

222   Q 380; Q 394; see also Q 698 [Mr Chantler] Back

223   See e.g. Ev w125 Back

224   Ev w85 Back

225   Ev w125; Ev w89 Back

226   Ministry of Justice, Breaking the Cycle consultation, p 6 Back

227   Ministry of Justice, Licence recalls and returns to custody to 31 March 2010 England and Wales statistical bulletin, July 2010 Back

228   Q 95 Back

229   Ev 196  Back

230   Ev w48 Back

231   Ev 184; Q 588 [Mr Thornhill]; Q 359 [Ms Webb]; Q 394 [Mr Ledger, Mr Lay] Back

232   Napo PB05 cited Hansard 07.12.10 The reconviction rates for those on unpaid work are half of those for custody and have been effective: last year 74% of offenders completed their orders successfully, 14% were breached for failing to comply with conditions and 12% were convicted of a further offence  Back

233   Q 531 Back

234   Unison, Response to Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders,
March 2011 

235   Q 703 [Mr Quick], see also Q 359 regarding the programme in West Yorkshire. Back

236   Q 576; Q 578  Back

237   Ev184; w110; Q 399 Back

238   Ev w89 Back

239   Ev 224 Back

240   Ev 219 Back

241   Q 528; see also Ev w16 Back

242   Ev w18; w26 Back

243   Q 362 Back

244   Q 458 [Mr Smith] Back

245   Q 362 Back

246   Q 657 Back

247   Q 398 Back

248   Q 359 Back

249   Ev w64; see also Q 458 [Mr Smith] Back

250   Qq 394-395, 360 [Ms Webb]; Q 529 [Ms Crozier] Back

251   Q 458 Back

252   Q 457 [Mr Wright]; Q433 [Mr Martin]; Q 710 [Mr Chantler] Back

253   Q 397 Back

254   Q 466-469 Back

255   Q 528 Back

256   Ev 203 Back

257   Q 528 Back

258   Q 360; see also Q 528 Back

259   Ev 171 Back

260   Ev w95 Back

261   Q 378 Back

262   Ev w21 Back

263   See e.g. Ev 216, Qq 335, 374 Back

264   Q 379 Back

265   See e.g. Ev w59 Back

266   Q 553 Back

267   See e.g. Ev 173; 196; 156; w99; w114; w131; Q 710 [Mr Quick; Mr Chantler, Mr Long] Back

268   Q 710 [Mr Chantler] Back

previous page contents next page

© Parliamentary copyright 2011
Prepared 27 July 2011