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 officerperhaps
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 sentencesinstead,
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 passedas not doing
the latter affects the motivation of offenders and undermines
the confidence of the courtbut 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]
PUBLIC CONFIDENCE IN COMMUNITY SENTENCES
168. The Government is critical of high levels
of breachfor example, of community paybackwhich,
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 behaviourfrequently from a very low baselinetakes
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 theorywhereby
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.
THE ROLE OF PROBATION IN PROMOTING
CONFIDENCE IN COMMUNITY SENTENCES
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 superviseand
they doand 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 ofand hence maintain confidence inlocal
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 sentencesI know the Government are
not proposing not to have any short sentencesclearly 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 Committeeof 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 closehas 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 Back
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
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