Written evidence from the Magistrates'
Association Judicial Policy and Practice (PB 19)
INTRODUCTION
Since its beginnings over 100 years ago, the role
of probation has changed—and perhaps the first question
that the Justice Select Committee should address is—what
is the fundamental purpose of the service? The purposes of sentencing
are clear—they are set out in legislation, but do the aims
of probation match this?
— The
punishment of offenders.
— The
reduction of crime (including the reduction by deterrence).
— The
reform and rehabilitation of offenders.
— The
protection of the public.
— The
making of reparation by offenders to persons affected by their
offences.
Magistrates have a high degree of confidence in community
sentences — witnessed by the large number of such sentences
imposed and by the high level of agreement with community order
proposals put forward in pre-sentence reports by the Probation
Service. This has coincided with a 15% reduction in the number
of offenders sent to prison by magistrates for non-summary offences
from 2007-09 (MoJ Sentencing Statistics Brief).
Community Orders represent almost 40% of magistrates'
courts disposals for non-summary offences and are therefore a
critical component of magistrates' sentencing options. They are
acknowledged to be the most effective disposal to achieve a reduction
in reoffending.
There are three stages at which the probation service
interacts directly with sentencers:
1. Pre-Sentence Reports
Information given on the offender by the probation
service through pre-sentence reports is information that a sentencing
bench would not otherwise have. More importantly, information
is given with an in-depth knowledge of the programmes that are
available locally, and these vary across the country. PSRs are
invaluable to sentencers because they enable a bench to sentence
with the full knowledge of local requirements that they may then
deem necessary to accommodate the five key elements of any sentence:
— Punishment;
— Rehabilitation;
— Reparation;
— Protecting
the public; and
— Reduction
in crime.
In the past, long periods elapsed between the court
request for pre-sentence information and its delivery by the probation
services. This situation had improved with the introduction of
"standard" and "fast" delivery reports—and,
in some courts this led to a high probability that a report could
be delivered on the first sentencing hearing date. However, because
of the decreasing availability of probation staff at courthouses,
this is beginning to drift back towards delays in many areas of
the country. Reports are now rarely provided on the day,
but within a few days. This is preferable to the original three
week delays that were the norm not many years ago but experience
around the country would suggest that the momentum for speedy
delivery of justice is being lost because of financial imperatives.
"Fast delivery reports" as originally envisaged are
not working and it is feared that the time to produce fast delivery
reports may lengthen even further due to the numbers being requested
and as probation is forced by budgetary cuts to reduce its staff
numbers.
2. In court
The presence in court of probation is important in
four respects:
(a) Probation staff can hear the reasons for
the PSR which may not always be apparent in the documentation.
(b) Probation staff can be questioned about offenders'
previous response to community orders; something that is not always
demonstrated on an offenders' record, which itself is often not
up to date.
(c) Probation staff can give an update on the
effectiveness and/or progress of a current order.
(d) Programme content and options can be discussed
prior to sentence with complete knowledge.
(e) The offender is party to these discussions
in court which assists the concept of engagement and the involvement
of the offender.
Although some of this information forms part of the
magistrate's sentencing form, these forms are not universally
used in the magistrates' courts. All justices use them—but
some other members of the judiciary do not which often leads to
the need for duplicated communication in court prior to a final
sentence being passed. The sentencing bench must have all relevant
information available.
3. Post court
Management of offenders either on community orders
or on licence following custodial sentences is vital for many
reasons:
(a) To co-ordinate a sentence.
(b) To monitor progress.
(c) To ensure compliance.
(d) To monitor and report breaches.
Magistrates and probation staff will often work together
in the final stages of a community based order with the Magistrate
joining the closing session to issue certificates or to commend
the offender for completing the sentence.
It is important that a single agency is responsible
for the management of offenders. We believe that the current arrangement
is difficult enough to control without adding in different pressures
that may come from different organisations and different types
of organisation.
We would also like to see more co-operation within
NOMS leading to more programmes being coordinated during spells
in custody and their seamless transition to the community licensing
period.
Financial pressures particularly from private organisations
brought into the CJS could change the focus from service delivery
to profitability. The Criminal Justice System is of such importance
to public confidence that a focus on profit would move the CJS
away from its core aims.
RESPONSES TO
THE PARTICULAR
QUESTIONS POSED
(a) Are probation services currently commissioned
in the most appropriate way?
Sentencers require a single body from whom to gain
information and through whom to co-ordinate community sentences.
We have that at the moment in the Probation Service.
Currently probation services are commissioned from
the Ministry of Justice (MoJ) via National Offender Management
Service (NOMS) then regional Directors of Offender Management
Services (DOMS), acting for NOMS, then via Probation Trusts. We
see no reason why a department of the Ministry of Justice cannot
commission services directly. There seems little need for NOMS
and therefore DOMS. Allowing Probation Trusts to commission would
ensure that all types of contract are possible with all sorts
of providers, rather than moving towards specific national organisations
taking most of the contracts. There is merit in small providers
supplying services, particularly on a local basis.
Probation Trusts are probably best at providing close
working (including one to one work) with offenders. Of course,
other organisations could do this but whether they would have
the same dedication and genuine desire to reduce reoffending through
this kind of work is questionable.
Magistrates' experiences of Clear Springs, the previous
national provider for bail accommodation, have not been altogether
positive. We wait to see how the new provider operates.
(b) 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?
The effective operation of probation trusts varies
from trust to trust. The last reorganisation has led to quite
a few mergers and more are likely in the future. The removal of
DOMS and the regional structure could increase possible mergers
(eg Cheshire and North Wales have close links). We regret the
fact that serving magistrates are no longer eligible to sit on
trusts and look for improved methods of liaison in the future.
Offender Management means working with an offender
throughout the duration of his/her sentence and licence. This
seems to work reasonably well and involves, amongst other things,the
use of analytical computer tools such as OASys which is currently
being made less complicated, for greater ease of completion.
Currently, models around Integrated Offender Management
are being trialled. These involve very close working with other
agencies such as police and local authorities. Partnership work
is the key here and one wonders if non Probation Service organisations
would manage this in such an acceptable manner.
The Probation Service as a whole has an extremely
dedicated workforce which is clearly an asset in terms of performance.
As magistrates we know that "managing offenders" requires
a balance of enforcement and encouragement to ensure that the
court's wishes are complied with and that sentences are completed.
We know that offenders in the community can only be managed to
the extent they are willing and capable of being managed. Using
enforcement too readily can make it more difficult to get the
sentence completed.
Magistrates are also aware that there is a gulf between
the post release supervision provided to those on sentences of
12 months and more and the total lack of supervision of those
released after short sentences. It is sometimes argued that more
public protection is provided by a community order involving two
years' supervision than by a prison sentence of two months followed
by nothing at all.
Magistrates would like to see more co-operation between
the custodial and community divisions of NOMS.
(c) Are magistrates and judges able to utilise
fully the requirements that can be attached to community sentences?
How effectively are these requirements being delivered?
Services are provided professionally, but their provision
is piecemeal at best—which means that good practice does
not necessarily roll out from area to area and region to region.
Specialist programmes for drug-users, alcohol abusers and the
mentally disordered are particularly patchy. This is potentially
causing injustice because some offenders who are not getting the
programmes that they require.
There are many examples on a local basis which demonstrate
that not all requirements are available in each local area. For
example there are no attendance centres in Thames Valley so an
attendance centre requirement is impossible. Expanded, this must
means that not all offenders have the same opportunities for reform
across the country, which in turn would indicate that there is
a post code effect operating. Much of this, locally, is said to
be due to lack of appropriate funding, so that the probation trust
has to cut its cloth for best effect. For example, probation will
seek to have supervision requirements restricted to the highest
risk offenders because they do not have the staff to supervise
every offender on a community order. Resource shortages can also
mean that offenders have to wait before they can start a programme
because there is more demand than there are places available.
The community domestic violence programme is one where there are
often long waits after sentencing before a place can be made available.
The mental health treatment requirement is very little used because
it requires assessment. Moreover, some parts of the country report
that curfew is not recommended as often as it might be because
report writers are not familiar with it, as it is not administered
by probation.
Additionally, feedback on the success or otherwise
of types of combinations of requirements does not happen as much
as we would like. We do not require a "tick box" combination
approach, but we would benefit from better knowledge of how effective
particular combinations of programmes are in certain circumstances.
(d) What role should the private and voluntary
sectors play in the delivery of probation services?
Both sectors have much to offer—that is not
at issue. What is at issue is whether they should be commissioned
and directed by probation trusts or whether they should tender
directly to DOMS, NOMS, MoJ in direct competition with probation
trusts.
Commissioning ought to be done by the probation trusts.
We are concerned that a profit motive would adversely affect private
sector delivery if not commissioned through probation trusts.
Small, but very effective, local service providers could find
themselves too small to compete on a level playing field.
We would be concerned if offender management were
to be outsourced, partly because this is the core probation activity
and partly because we doubt that there are qualified probation
officers already available to do the work in the private sector.
Outsourcing offender management would probably therefore just
mean changing the employment status of the existing workforce.
(e) Does the probation service have the capacity
to cope with a move away from short custodial sentences?
Almost certainly not because it struggles to cope
with its present workload. The logical approach would be to reinvest
some of the savings from reducing short custodial sentences into
probation services. This might take five years to implement properly.
We would be very concerned if a reduction in short custodial sentences
meant an increase in the already very high workloads of probation
officers and deterioration in their effectiveness.
Offenders who serve short prison sentences are likely
to be persistent offenders who have not engaged well with probation
in the past. They are likely to be very resource intensive if
they are given community orders and probation will not be able
to cope with them. There are schemes in Greater Manchester, Derbyshire
and elsewhere piloting "Intensive Alternatives to Custody"
which are proving very successful, but which are only available
on a piecemeal basis, because of funding.
If the savings released from not sending someone
to expensive custody could be directed towards probation then
these options would become more viable. Perhaps a system of funding
following the offender could be considered?
One of the problems is that the institutions to which
offenders are sent for a short term are geared up for long term
offenders. This does not mean that a short term custodial sentence
is not appropriate but that the operation of the sentence cannot
treat the cause of offending behaviour. An extremely high proportion
of the offenders given a short custodial sentence have already
served a number of community sentences with a variety of requirements
that have failed to address their offending behaviour. So there
is a continuing need for short custodial sentences available to
the judiciary for this type of repeat and sometimes prolific offender.
(f) Could probation trusts make more use of
restorative justice?
Restorative Justice is quite clearly an ethos with
which probation is comfortable. Most sentencers have no difficulties
with the concept, either. It operates reasonably well within the
youth justice system because it has been their focus for some
time.
We are not so certain that private sector organisations
take the same view. We believe that they might struggle with it.
We do have concerns in the way that restorative justice
is currently administered by the police. We believe that this
would be better delivered through the courts and the probation
service.
Public opinion would also need to be prepared for
more restorative justice so there was no backlash from those who
would argue that it was "too soft", as some already
do in respect of community sentences.
(g) Does the probation service handle different
groups of offenders appropriately, eg women, young adults, black
and minority ethnic people, and high and medium risk offenders?
There is little evidence that the probation service
operate inappropriately with different groups. The Race Discrimination
Delivery Board continues to be told of "counter-intuitive"
(ie negative) evidence of discrimination in this regard across
the main tiers of the criminal justice system. This is almost
certainly because there is none. However, it has to be recognised
that it is often more expensive to provide programmes for minority
groups and so they are often run less frequently than for other
groups. For example, there can often be a delay in placing a female
offender on a woman-only programme which works against the need
to get offenders started on programmes as soon as possible.
(h) Is the provision of training adequate?
Probation staff are well trained and magistrates
have high respect for their professionalism. However, current
budgetary constraints mean that training is under severe pressure.
However, those with whom we interact seem to be good. It has to
be remembered that the kind of person who is attracted to probation
generally tends to be good at working with people, having good
listening skills, etc. This is definitely not a job for everyone,
especially the faint hearted!
September 2010
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