UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 519-x

House of COMMONS

Oral EVIDENCE

TAKEN BEFORE the

Justice Committee

The Role of the Probation Service

Tuesday 7 June 2011

John Thornhill and Councillor Mehboob Khan

Jane Coyle, Roger Hill and Peter Neden

Evidence heard in Public Questions 556 - 647

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Oral Evidence

Taken before the Justice Committee

on Tuesday 7 June 2011

Members present:

Sir Alan Beith (Chair)

Mr Robert Buckland

Jeremy Corbyn

Christopher Evans

Mrs Helen Grant

Ben Gummer

Mr Elfyn Llwyd

Elizabeth Truss

Karl Turner

________________

Examination of Witnesses

Witnesses: John Thornhill, Magistrates’ Association, and Councillor Mehboob Khan, Local Government Association, gave evidence.

Chair: Mr Thornhill, Chairman of the Magistrates’ Association, welcome back. We are very glad to see you again.

John Thornhill: Good morning, everybody.

Chair: Councillor Khan from the Local Government Association, we are equally glad to have your help this morning. The perspectives of the bench and of local government are very important to the work we are doing on the Probation Service and so we look forward to any guidance that you can give us. I am going to ask Karl Turner to begin.

Q556 Karl Turner: Thank you very much indeed, gentlemen. Very generally then, I wonder whether the Probation Service has changed over the last five or 10 years. It was initially established to provide a service to the magistrates’ court. Has that changed in any way?

John Thornhill: In terms of whether those services have changed, the changes are that there have been developments and improvements in those services. You refer in the document here to a reduction in custodial sentences over a particular period of time. I think that is partly due to the fact that a wider range of services have been provided for magistrates to impose community orders with attendant programmes. Also, the quality of reports and assistance that is now given in the courts has significantly developed over the years and it is now possible if we are lucky enough to have a probation officer in court-we are in Liverpool-to engage in a dialogue and debate with the probation officer, the defendant and defendant’s representative about what might be appropriate penalties, punishments or disposals that could be used in the courts. So, yes, we believe that the Probation Service has considerably improved in the last 10 years. It has changed its focus. It was social services at one time. It is no longer that. It is a deliverer of sentences and, overall, a very positive deliverer of sentences.

Q557 Karl Turner: Thank you very much. Do you want to add anything to that, Councillor Khan?

Mehboob Khan: Yes. I am a former board member of West Yorkshire Probation Service and so was in the thick of it when the changes were being made. Many of the governance and structural changes around the organisation did lead to a period of instability. West Yorkshire has five areas and each area is coterminous with a significant, sizeable local authority; my own serves 420,000 people. After the changes had been implemented, what was very important was that the probation workers at the coal face and the managers were given the freedom and flexibilities to adapt to local circumstances. What we welcomed was the ability to form positive working relationships at a local level to try and tackle local issues and concentrate on how the partnerships and the relationships between different partners can be enhanced by more freedom at the district level as opposed to the larger county level. That was welcomed through the changes. But they did bring a period of instability. Colleagues who were on my council were also frontline workers in the Probation Service and they felt that the instability and changes were not always adding value to the front line.

Q558 Karl Turner: Thank you very much indeed. NOMS have produced some recent guidance on timings for fast delivery reports. What do you have to say about that situation, if anything?

Mehboob Khan: The targets that they have issued recently are welcome, provided we have the capacity locally to respond to them. Local authorities and the police are significant partners in the local criminal justice system and our approach has always been to try and tackle problems upstream in order to prevent expensive interventions later on. But we are struggling with reductions in budget. For example, the budget for the community safety partnership has been reduced by 60%, which does make it difficult to try and meet stretching targets. However, in general, we do welcome elements within the Green Paper around outcomebased commissioning, payment by results and pooling of budgets. So there is light at the end of the tunnel.

Q559 Karl Turner: Sir Alan will want the Committee to go into some of the areas you speak about anyway, but is capacity an issue? Do you think capacity is going to be a major issue?

Mehboob Khan: Absolutely. It is a line that the Local Government Group has taken in all these types of settings in that cuts in budgets to the police and local government will impact on our ability to work with other partners. There is always a danger that organisations then retreat back into their silos, and there is always a danger that some of the additional work that is done outside of nonstatutory work is the first to be lost. I have a few examples of that, if I can talk about those later on.

Q560 Chair: Do you want to tell us what you have in mind?

Mehboob Khan: Yes, I will do that very quickly now. As you know, the Probation Service works with those offenders who are statutory offenders who have served more than a 12 months’ sentence. At Kirklees, we have invested over £100,000 each year for the last three years to work with those who have had much shorter sentences in order to prevent them from becoming statutory offenders and also they are still prolific offenders, but yet they are probably given six or eight-week sentences by the courts or other forms of community sentences. By working with that group and using our own resources, we have been commissioning the Kirklees division of West Yorkshire Probation Service to help reduce reoffending. That is work that we have had to do because we felt it would make an impact. Prior to the budget cuts we were able to do this kind of discretionary work and now we really have to focus on our mainstream responsibilities, our statutory budgets, which are still growing massively, with increases, say, in adult social care or lookedafter children. These types of work are areas that are under pressure. As for this year so far, almost eight weeks into the new financial year, we have not been able to give West Yorkshire Probation any assurances of that £100,000 in this financial year yet.

Q561 Chair: But, before the budget cuts, there was considerable variation in the extent to which local authorities did the kind of work you have just described in Kirklees and in the extent to which they worked with community safety partnerships, for example. So it was not all about money, was it? Part of it was taking initiatives.

Mehboob Khan: It is about good working and effective relationships at a local level and identifying where we want to invest within the system, particularly upstream on early interventions which reduce the cost later on. But, when money is tight, then those sorts of areas are affected. The other part which is affected by cuts in local government budgets generally is the responsiveness we can make to those who are in the system who need help with housing or benefits, education, employment and training, because it is a holistic approach towards that. Many local authorities are having to make significant reductions in those areas where we work with vulnerable people, and those are going to impact. We are seeing that impact upon the voluntary sector as well and we are commissioning less from the voluntary sector now, which reduces the capacity of the voluntary sector. Often, single organisations provide a range of services to vulnerable people and some of them are those within the criminal justice system.

Q562 Chair: But I still pose the question: why was it so variable when money was not so tight?

Mehboob Khan: It was down to local, strong, effective partnerships. I can talk about our own example. On our community safety partnership, the local manager for the Probation Service had been a permanent member of the partnership many years before it became a statutory responsibility. We were able in those meetings to take a more holistic and longerterm approach towards reducing reoffending. That helped to define new programmes which impacted upon offending and crime levels in an area. I think it does mean that, no matter how much centrally or locally there is prescription or statutory arrangements, if there is a willingness to co-operate and make things work, then the statutory framework helps make that happen. But, in the absence of a statutory framework, local partnerships can innovate and are able to look at fantastic ways of supporting those vulnerable people in the community.

Q563 Chair: When viewed from the magistrates’ side, what difference does it make to you as magistrates to have effective liaison with the Probation Service and to know that there is effective liaison between them and the local authority?

John Thornhill: It is a matter of building confidence in the sentences they are imposing, that they will be delivered effectively and in a challenging way, where appropriate. It is also about working together so that we have a mutual understanding in respect of the issues of probation in delivering sentences and the issues that we face in sentencing. It is very clear that we have the responsibility to sentence. Probation has the responsibility to deliver that sentence. But it is very important that we both know what works. Feedback from probation about the sentences that we are imposing and the effectiveness of them is vital and is very important in ensuring that, as we progress and develop, we are imposing sentences which meet the needs of the community, but also, where appropriate, punish the offender, support victims, but also support the offender to reduce reoffending.

My colleague referred to programmes at an early stage. One of the things that we would like to see more of is early intervention. With a first or second time shoplifter, we end up at the moment just fining them, but we know that the real issue is, what are the underlying causes of the offending behaviour? That is something, I believe, we must tackle on every occasion. If there were available programmes from maybe the third sector and the private sectors you referred to, where we could say, "You will get a conditional discharge"-that will need a change in the law because we cannot do that at the moment, but it is certainly worth thinking about-"on the condition that you attend this early intervention programme with a local third party or voluntary group", I think magistrates would be attracted by that.

One of the things that we want to do is to reduce the reoffending at an early stage before the offenders get into that cycle of reoffending. We are focusing at the moment on those who are on their second, third, fourth, fifth, sixth, seventh or 42nd offence, as an offender was who was in front of me quite recently. We need to tackle these things earlier. We need to provide the services that are there, be it, as I said, through a local authority or the third sector, and what is important is that we have a consistency of delivery right across the country.

We talked about fast delivery reports. We welcome that. In my court, where we have probation in attendance, I can get a fast delivery report in one or two hours and deal with the offender. That is in the best interests of justice. But what about the court where the Probation Service is 30 or 40 miles away? What we need to do is look at how we can use the Probation Service effectively to get a fast delivery report, even if it means using modern technology via video links, so that the court can sentence expeditiously and in a proportionate way.

It is looking at those underlying causes of offending behaviour and how we tackle those, and what the support services are for the offender to manage those issues. That was the whole raison d’être of the North Liverpool Community Justice Centre. Would that we could have that in every court, but if we mention that everybody’s eyes go up in horror. But the principles enshrined in the North Liverpool Community Justice Centre are principles that we need to be trying to deliver right across the justice system. Magistrates will work and support that. We have seen that, as I said. In the last five to 10 years we have seen the development of more and more of these local programmes, more and more of the engagement, and more and more of the community partnerships to deliver effective programmes.

Chair: The Committee in its previous existence visited the North Liverpool Community Justice Centre and I think formed exactly the impression you have. This is the ideal and this is the basis on which you should try to operate even though you cannot provide the full quality that that does.

Q564 Elizabeth Truss: I completely agree with what you said about early intervention. I think that is very important. You have talked a lot about working together locally and how the various services interact. How do you think the national structure could be reformed to make that local working better? Would it be placebased budgets? Would it be having an integrated service, Mr Thornhill?

John Thornhill: I think we have to look at an integrated service. We have to be very careful that we do not end up with postcode sentencing and postcode delivery of sentences. I come from an urban area where it is easy to make people work together or to get people to work in partnership. But when it is a rural area such as Devon and Cornwall, or the breadth of Lincolnshire or the north-east or the north-west, or Wales-I have not forgotten Wales-it is more difficult to ensure that there is integration. I think you have to work very hard to do that. We need to look for national frameworks through which we can operate. We have welcomed the recent shift in NOMS in terms of probation delivery from, if you like, what was a "tick- box" approach more to an assessment of quality outcomes. It was all very well to say an offender had turned up 30 times, but how effective was that programme? How effective was the programme for the offender if they had not engaged? Built into any of this, we need to have that quality assurance that the programmes are being effective. Now, whether that is delivered through placebased funding or through a national strategy or integrated funding, for the sentencer it doesn’t matter in one sense, but it will do for the local deliverers, we appreciate.

Q565 Elizabeth Truss: Can I ask specifically what you think about the different cultures in the Prison Service and the Probation Service, because, if you look at other countries, quite often they have a single correctional service which will administer prisons and probation? It strikes me in Britain that we have NOMS, which theoretically integrates them, but then we have two separate services. Isn’t that quite costly and defeats the object of having the integration?

John Thornhill: It can be costly-I can appreciate that-because you are running two services. If you have a single integrated service, then you can achieve continuity of delivery right across the whole spectrum of disposals. However, that depends on ensuring that there is a fair and just balance of funding, again, right across, and identifying where the funding is most necessary.

Q566 Elizabeth Truss: Maybe I can put this question to Councillor Khan. Shouldn’t the funding and the provision be led by the sentencing rather than the sentencing being led by the funding and provision? Isn’t part of the problem that sentences are being adjusted to fit the capacity rather than the other way round, saying, "What is the optimum sentence for this person who has been convicted?"

Mehboob Khan: I absolutely agree. The desirable sentence is the sentence, and that is where the public need confidence that the judicial system is administering the correct sentence. Then it is up to probation, local authorities and others to work in partnership. Can I answer partly your first question as well because it is not just an issue around financial capacity? In my area we are very lucky, or in other large metropolitan areas we are very fortunate, that the local probation service is coterminous with a large county-Greater Manchester, West Yorkshire and Lancashire. Below that, for example, at West Yorkshire, their local units are coterminous with the local authorities of Kirklees, Bradford, Leeds, Calderdale and Wakefield. It means that at that local authority level you have coterminosity with the borough commander for the police, the primary care trust, the local authority, probation and a whole host of other partners. But, at county level, in certain areas, if you take any large shire county, you have a number of community safety partnerships that are down at district level and a larger one that covers the county, but the capacity of officers and frontline staff managers within the Probation Service then to be able to engage with a range of community safety partnerships is very limited. Quite often the cultural issue is overcome when elected members and council managers have direct contact with probation staff and they can understand the pressures on the service, what the national and local drivers are of the service and try and find local solutions on that.

Q567 Elizabeth Truss: I notice, though, you did not mention prisons in that list.

Mehboob Khan: That is right.

Q568 Elizabeth Truss: Is there a particular issue with the way that the Prison Service interacts with these other public services to provide a full holistic solution?

Mehboob Khan: There are two key things. It is a good question. It is not something I have thought about in any depth. One is that prisons are not coterminous. They are all over the place. Wherever someone is sentenced they will go to serve their prison. Residents in my borough may well be serving their sentence 70 or 80 miles away. But, as the leader of the Council, I have a responsibility for their wellbeing. It is very difficult to deliver on that responsibility when they may be serving the sentence significantly away from my area. The second one is that local authorities have traditionally not got involved in that part of the criminal justice system. We have used our links through probation as a way to work through that.

The other point I wanted to make is about the relationships. I chair the Kirklees Partnership Executive. Probation across West Yorkshire only has a budget of £40 million compared to the rest of us, which runs into billions. If you give a place to the local manager on the partnership executive to be able to play into not just the criminal justice elements of the discussions there but around health and housing, education, employment and training, you would have someone there who has the equal status as the leader of the Council, the chief executive of the PCT, playing into those discussions and bringing it from the perspective of those who are in the criminal justice system. That does help others, and it is not just the local authority. It helps the primary care trust, the voluntary sector and others to understand the role of probation. Then they realise it is a really important role. If we don’t get that right, the rest of the system has risks in it of falling down.

Q569 Elizabeth Truss: Can I just put the same question to Mr Thornhill about how integrated the Prison Service is in this process and whether or not you feel the capacity is following the sentencing or is it the other way round?

John Thornhill: The capacity should follow the sentencing. It is an issue that there are not going to be similar sentencing patterns across the country because the nature of offences across the country will vary. We need to look at that and do some research into the nature of the different types of offences and the different types of disposals that are being used across the country. But it needs to be integrated because, in one sense, it is a continuum, is it not? We are talking about a whole range of possible disposals to match the various levels of seriousness and so there has to be integration between the two. There has to be a working together. I appreciate the Councillor’s concern that, for instance, some offenders are serving sentences in different prisons in other authorities where you have no control or no management over them. That is an issue. You are paying for it, but you have no control. I think we have to look at these issues to see where the sentence is imposed, if it is appropriate for it to be served in that area and who then takes the responsibility for it. But there has to be an integrated system. The danger is that we have a range of different agencies delivering sentences in different ways. We need to have a consistency so that there is an integration right across because it is about that continuum of seriousness.

Q570 Chair: If you pass a custodial sentence, you know somebody will take that person away and put them into custody. If you pass some other sort of sentence, presumably you first have to ask some questions about whether it is available, don’t you?

John Thornhill: If we are looking to impose a community penalty, of course, we would always seek a presentence report, be it a fast delivery report on the day or a standard delivery report, where the bench would discuss with the Probation Service, if they are in court-which is another problem of course-what might be appropriate sentences given the seriousness of the offence, the circumstances of the offender, and there will be considerations for the victim and society. We would not be imposing a community penalty without some contribution from the Probation Service. In seeking a report, we might say that one of the issues that have come out is, for instance, literacy and numeracy. How would the Probation Service in its disposal tackle that particular issue? We may pick up issues about domestic violence or we may find there is an underlying drink problem which did not come out at the first stage.

Q571 Chair: Do you ever get to the point where you would like to say to somebody who is in a position to do something about it that there is more prison resource than this bench requires and not enough literacy and numeracy or alcohol-

John Thornhill: To be fair, we probably would not have the statistics at our disposal in the courtroom to be able to make those decisions. In one sense, as I said, it is not really our concern. It is the responsibility of those delivering the sentence to ensure that there is proper provision of the sentences that the courts require. That management should be driven by sentencing, not by capacity.

Q572 Mr Llwyd: Can I ask both of you what your overall view is of the concept of payment by results? What do you perceive to be the strengths and the possible limitations of that model when applied to delivery of probation services?

Mehboob Khan: When I was a member of the West Yorkshire Probation Board we received our quarterly and monthly performance management reports, and the statistics were about completions of those offenders who were on particular courses and whether they completed them or not. We were one of the highest performing in the country on completions. I always sit there and scratch my head and say, fair enough, they have completed the course, but so what? Has that reduced reoffending or has it been that we are really good at encouraging people to go through this course?

Payment by results is not something new. It has been around for quite a while. I am a nonexec director on our local PCT, so payment by results in the health sector has been there for a number of years. In principle, it is a good system because it is about rewarding those public service providers who have been able to work with the client group, and the end result in this case is that it is a safer society by having less offending. But there are some concerns that we have about the detail.

If I can use an analogy elsewhere, it is easier to explain. Payment by results in trying to get people into work is now the new mantra for the single workbased providers. If I was one of them, I would think, well, I will get £x thousand for each person we get into work for six months. I am going to work with that client group who I know it is easy to get into work. They may just have become unemployed so they still have a culture of work or they have good qualifications. You can match them against jobs and get them into work. Who is then going to work with the really difficult hard-to-reach clients? The really difficult hard-to-reach prolific reoffenders in the system may get overlooked because providers under financial constraints are going to be looking to see how many people they can work with, that the client group is going to be less likely to reoffend and they will do their own risk management on individual clients and put resources into those. We would like to see that question resolved. One possible solution is that, for those clients who have the highest risk of reoffending, their payment by result tariff is larger than for those who are at a low risk of reoffending. Therefore, within the system, regardless of which client group you are working with, the input you put into that particular client and the output that you receive is commensurate. That kind of system is going to be more difficult and bureaucratic to manage, but I believe in the longer term it will deliver the best results.

Q573 Mr Llwyd: This question was put to the Justice Secretary many months ago by a member of this Committee and the notion is that some providers will cherry-pick, which is what you have just described. The answer we had then was that, if they are going to get a contract, they will deal with all of them, good, bad and indifferent, and lump them together, as it were. That is the answer we had then. I don’t know whether you have had any further discussions about it.

Mehboob Khan: I have not had any further discussions on the detail of that, but we know that cherry-picking does happen currently. Whatever size of contract is given, if there is the same tariff for all the individuals, I just think if I had this limited resource to work with that client group I am going to try and get the most bang for my buck on that, which is why differential payment tariffs are really important on that. I think the other point on payment by results is who the providers and commissioners are going to be on that. It is really important that we have strong commissioning arrangements to make sure that those who are involved as providers are properly performance-managed, that they don’t cherry-pick, and that the client group that they are given an opportunity to bid for is a client group that represents a crosssection of those within the criminal justice system. It is going to be equally difficult to try and create a client group for them to work with because people will come in and out of the criminal justice system during the period of the contract. How do you ensure then that, if you are managing four different providers, each one gets a crosssection of clients? The client management end of it is going to have to be pretty bureaucratic to make that work. I am just trying to think of ways in which you have a softer relationship between commissioner and provider, an open and transparent approach towards looking at who is on their books and what interventions they are using, sharing good practice between providers as well, but looking at ways in which the system itself drives providers to work with those people who society fears are at more risk of reoffending.

Q574 Mr Llwyd: I know Mrs Grant wants to put a question, but, before she does, Mr Thornhill, what is the view from the magistrates’ perspective on the question?

John Thornhill: We would support many of the concerns that the councillor has expressed and we have indeed expressed some of those. We had a meeting early on in, I think, late February with the Ministry of Justice and senior members of the judiciary and ourselves, particularly as most of this will impact on the magistrates’ courts. We raised the concerns there about cherry-picking. We raised the concerns about how far this will be driven by profit rather than by effective delivery of the sentence. We raised the concerns about what would be the consistent approach across the country. For instance, what about the demographic issue? It will be attractive to bid for a contract in, say, somewhere like a large conurbation where there may be a wide range of clients to deal with. But in the country areas, again, what would be the difficulties there? How will they deliver across the whole of a large area? We raised many of these concerns and we put a paper to the Ministry of Justice where we expressed the view that there needed to be very clear quality assurance and quality control built into the contracts, with regular appraisals, inspections, and the ability to withdraw from a contract-a whole range of commercial statements that you would have in a contract. There is now a Ministry of Justice judiciary committee or judiciary working party and we have had our first meeting where, again, we explored all these issues.

From our perspective, we are saying that we, as sentencers, must have confidence that the sentence will be properly and effectively delivered, and successfully delivered over a period of time. What is the measuring rate? For instance, if it is a more difficult offender, do you measure it in a shorter period or a longer period of time? How can you identify success? Those criteria have to be set out up front as far as we are concerned in any contract that goes out for tender. We have the opportunity to raise all our real concerns about this. As I say, we do not believe it should be driven by profit. We believe it should be driven by the appropriateness and effectiveness of the delivery of the sentence. We have raised those concerns and we have that opportunity through that judiciary committee because it is about confidence. If we see that success is not as successful as we would like it to be, then confidence is going to wane in the community penalties. We need to look at and take on board many of the recommendations in the recent report on the Peterborough Social Impact Bond where there were concerns there about paying twice, for instance. Who was the actual contractor who achieved the success? We need to be very clear about the lines there. I think these are things that we need to pick up. We have picked these up and we will certainly feed them into this judiciary committee which is a working party in the Ministry of Justice.

Q575 Ben Gummer: Can I just home in on that point you are making, Mr Thornhill? In the Welfare to Work Payment by Results, we are moving away from a situation where someone turns up at the Jobcentre and is told by someone who has had a three-minute interview with them that they need to go on this course and that course, and as long as they go through those courses that will enable them to collect their benefits when they are longterm unemployed. Rightly, the previous Government and this one have recognised that that is not a suitable way of dealing with people on Welfare to Work. Actually you have to work and understand their case history through a long period. Often it will come after several months that you begin to understand where the problems are in that individual’s situation. But why are the courts not the same? You are talking about sentencing reports made very briefly by someone for you to make a snap commissioning decision, which is effectively what you are doing. Why can we not get to a situation where magistrates protect the public?  They say, "This is what we need to do for public protection and for punishment", but then it is left to the provider to understand and to work with that person about rehabilitation through the course of the contract which is let without the magistrates’ court.

John Thornhill: One of the things that we have seen is successful is judicial continuity in dealing with offenders. If you look at something like the drug courts pilots that took place in Leeds, I cannot remember which court it was in London but there certainly was a court in London, and in other courts around the country, if you look at the development of things like the problemsolving courts, there is judicial continuity there. If we can build that in, and if we can build in what I would call incentivised sentencing, where we say, "You will be on a community order for 12 months, but if there is a degree of compliance that can be automatically reduced or, if there is not compliance, automatically increased", again within a set of guidelines-we must have those of course-then we believe it is not inappropriate for magistrates to impose the appropriate sentence and a sentence which at the time appears appropriate.

Certainly for standard delivery reports, there are usually two to three weeks to produce and prepare these. It may be, of course, that the offender is already known to probation, because very often these are repeat offenders and there will be a history there. One would hope that we are not saying in most cases, "This is the first time we have seen this offender. We have a short period of time to make the report." There is an opportunity to produce a report which looks at what the underlying causes of the offending behaviour are and puts forward proposals for appropriate programmes that will tackle that. If there is then judicial continuity either by bringing it back to being in court or the magistrates working with probation in a different way than necessarily in the courtroom, then we can adjust and amend the delivery of the sentence and the content of the sentence over a period of time to meet the needs of the offender. No one has mentioned the word, but we know the principles of resistance theory. It is something that we as magistrates have to look at. One of the things we are thinking very often is that we have an offender who commits an offence for which they should be sent to custody but they get a community order, fail to comply and come back to court. What does the court then do? Maybe, instead of just assuming that it is an immediate custodial sentence then, we are looking at a staged process. For instance, over a period of time we work with the offender and support them to rehabilitate themselves, because until they wish to do so, whatever we do in the courts, we are not going to achieve immediate success.

Q576 Ben Gummer: I am aware we are in the anniversary year of the justice of the peace being introduced and we are all great fans of JPs here, but are you really saying that all magistrates are capable of this kind of complexity of continuous commissioning? You are talking about ongoing quality assurance through a period of a probation order. You are talking about very difficult decisions.

John Thornhill: I am certainly not talking about magistrates being involved in commissioning at all.

Ben Gummer: Well, it is that.

John Thornhill: That is for the probation trust. What I am talking about is magistrates being involved in the delivery of the sentence.

Q577 Ben Gummer: But the two are the same. They are, effectively.

John Thornhill: We may be using words in a different way, to be fair, but I am talking about being involved in the delivery of the sentence. If you look at the problemsolving courts, for instance, to give you an example, offenders come back every five or six weeks. In Liverpool recently I was told the story of an offender who said, "I have reduced my cider drinking from three bottles a day to two." For that offender, that was success. It may not be that it turned them round within that short period of time, but maybe there is a need then to recognise that success and to say to that offender, "Look, we gave you an incentive to change. You have changed. Now it might be appropriate to readjust the programme." That does not necessarily have to take place in a full court scenario. That could be done in a totally different way.

Q578 Mr Llwyd: The probation trust will be the commission, obviously. You would be a consumer in a way, wouldn’t you?

John Thornhill: In one sense, yes, but, because we are judiciary, it is right for us not to be involved in the commissioning process.

Q579 Mr Llwyd: Indeed; precisely, yes. Both in terms of the local authorities and also the magistracy, I presume you have had quite a detailed discussion in terms of modelling some of these services or the way you would like to see them coming forward-you have already answered part of this question-and, hopefully, the way in which you see payment by results evolving, in other words with a difficult case, an easier case, how long it should be before payment is made or whatever. You have had a fairly robust input into it, have you?

Mehboob Khan: The Local Government Group has sent a submission in to the Justice Department. At a local level it is part of the day job, and as chair of the Local Government Group’s Safer Communities Board I have had significant thinking through the process with council officers and colleagues at the Local Government Group. I will try and outline where we think some of the dilemmas, issues and questions are. I think the startingoff point is the question raised by Elizabeth Truss earlier on about what we want to see about pooling of resources. We would like to see at a local level significant pooling of the resources with all those involved in providing services to offenders.

Q580 Chair: Including prison.

Mehboob Khan: Including prison; absolutely, including prison, because it costs, on average, £54,000 a year to put somebody through prison. That is where money in the system is-in that top end and expensive end of the system-and we want to shift that back down. I will call it going upstream. In my neighbouring council in Bradford, they did some analysis on the types of services provided to those who are leaving prison and they found that, on average, each person receives 10 assessments. That is 10 different agencies carrying out individual assessments on them. Those offenders thought that the assessments were part of their punishment. They didn’t realise that these assessments are there for their benefit. We are carrying out 10 assessments in the worst-case scenario, but five is the average assessment on those.

So you have a group of partners at local level who, individually, can share those assessments and that knowledge about that individual. They can do it once and share that data. If they are required to pool their budgets, they will then be required to commission jointly as well. Hopefully, also, when the payment by results comes through, it is shared between those partners who are pooling the resources at a local level and with the provider as well, because good commissioning is a really strong part of good payment by results and good outcomes on that. If you are not a good commissioner, you are not using the right providers and the client group doesn’t have the correct interventions with them, you are not having the best outcomes.

On payment by results, what is an effective result? In some cases it will be someone never reoffending in their lifetime, whereas in some cases it could be, as my colleague has said, someone reducing their alcohol consumption which reduces their offending down to maybe only once every six months. A differential approach is going to have to be taken with each individual, where, instead of spending loads of public money on separate assessments, if we have a single assessment and really get underneath what the causes are for that individual to commit crime, we are able to tackle those issues for the longer term.

The Local Government Group does not normally ask for extra national direction. But in this case what we are asking for is direction upon all partners to come together to jointly commission those services. The Government’s approach in this Green Paper goes in the same direction as the previous Government, and where we see public services generally going down, the reward is by the impact. I have no qualm with private sector organisations making profit from this because profit is a strong incentive and motivator. But we have to make sure that there is quality built into those contracts as well because cherry-picking is the biggest problem that we think will happen. That will make the system fall apart. If local authorities, police or other budgets are stretched, if there is a pooling of budgets and a requirement to pool budgets, we won’t retreat into our silos to do what our statutory work is. We will actually be working together in that kind of partnership because then that becomes part of the day job of making communities safer.

But you will have complexities around the geographical areas in the country. If you take a large county like Kent with umpteen district councils, who is responsible for pooling those budgets? Who is the lead authority? I would say it would be the county council in our area where we are coterminous. For example, Leeds serves 800,000 and Birmingham serves 1 million people. The local authority becomes a lead partner because they have that democratic legitimacy to bring some of the other partners around the table together. Those partners have been used to the leadership by the local authority for a number of years on trying to tackle all sorts of other local problems.

Part of my day job as leader of the Council is also working with our officers and those organisations that have won the contracts for the employmentrelated work in our patch. My officers and I will be looking at how we make linkages from joint commissioning and pooling interventions to reduce reoffending to how those individuals then go through education, employment and training, working with colleges, universities and others. When things go wrong, the problem comes to our doorstep because it is those individuals in the community who are causing antisocial behaviour, there are drink problems in the town centre or it is having an impact upon other services that we provide. That is why I think it is not for me to say that we, the local authorities, have the solution to everything, but you need one strong accountable body and it is the local authority that currently has that.

Chair: That was a very good statement of case. I think we are going to need to move on. Helen Grant had a quick point.

Q581 Mrs Grant: Just a quick one, coming back to cherry-picking. Would a possible solution not be to effectively pay the provider that is left with the most difficult, challenging group of offenders and enhance them out?

Mehboob Khan: Absolutely. Part of commissioning could well be that, for those in the criminal justice system with the various tariffs against them about what sentences they have had, that tariff carries a price value. We commission a range of providers, some who deal with the really difficult high risk prolific offenders and some who deal with those who, hopefully, are going to be in the criminal system for just a small period of time. Therefore, you have the ability to do it with a different set of providers who have a different set of skills.

Also, if I may add, I chair the Association of West Yorkshire Authorities. The five of us meet very frequently to look at where we are able to bring together some of our frontline services to try and reduce cost. We know the budget for West Yorkshire Probation, which is one of the largest probation organisations, is just £40 million, and that is not a lot of money when it serves over 3 million people. It makes sense to give us the freedom and flexibility to be able to have four or five providers commissioned through a competitive process. We are not bothered if it is voluntary, public or private sector, as long as they meet the quality threshold and they are competitive, but providing that across West Yorkshire. That would be a significant step in the right direction of trying to build even more efficiencies and value and quality within the system.

Q582 Mrs Grant: But the point is that, if we use mechanisms like that, cherry-picking actually may not be such a big problem, because you have both mentioned several times this morning your concern about cherry-picking and how it might skew and distort the ultimate goal.

Mehboob Khan: That is right.

John Thornhill: Our concern would be to ensure that, if we have different levels of programme to meet the different levels of risk for different types of offenders, those programmes are all available in any court area. We don’t want to be constrained as sentencers because in a particular area there has been a low number of high risk offenders, in particular, and therefore that programme is not provided. There must be the provision of those programmes right across the board, because otherwise it will undermine the principles of justice.

Q583 Mrs Grant: Of course you want providers to be incentivised to deal with all that and solve the problem.

John Thornhill: Absolutely, and in one sense, as I said, who provides the service is irrelevant to the court. What is important is that the service and the programme is there; it is available to the sentencers to impose with a community order and that must be consistent across the country; and there is, therefore, also good quality assurance that those sentences will be properly and effectively delivered.

Karl Turner: Sir Alan, do you want me to start on the capacity issue?

Chair: Yes, on the intensive supervision schemes.

Q584 Karl Turner: Could you comment on the efficacy of the Probation Service in managing dangerous offenders?

Mehboob Khan: Do you want me to have a try?

Chair: Go on; have a try.

Mehboob Khan: From my previous experience on the board, the Probation Service have a range of frontline staff trained to different levels and lots of experience. I have every confidence that they are able to deal with offenders or client groups from a different range of risks, and it is about managers and frontline staff being able to understand those risks and the best way of having interventions that work in those. The service is very proud of what they do and they have a very high record of completions in West Yorkshire. They have a very low record of any physical attacks or abuse on staff. It means the relationship between the probation officer and the client is always seen in more of a positive light because they have gone through the prison system and they might have seen the baddies in the prison system, but they are seen as the people who are trying to keep them out of the prison system.

Q585 Karl Turner: Mr Thornhill, can existing systems for the risk management of offenders be strengthened in any way?

John Thornhill: We need to strengthen some of the systems that are in place at the moment. Again, this is one of the points that came out of the MoJ review into the Peterborough experiment. A concern that sentencers would have is that if we have a single contact in the courtroom-and that is something we would prefer, i.e. the Probation Service as a single point of contact, providing the reports, and taking the delivery of the sentence to whoever the providers are-there is then not a disconnect between the commissioner and the deliverer. There have to be very strong links because, if we have high risk offenders, if we have dangerous offenders, and the courts are imposing a community penalty, then the courts need to be confident that the Probation Service as the point of contact in court has appropriate quality assurances and procedures in place to ensure that the sentence is properly delivered, that there is no risk and there is risk management. That was one of the comments that was in the report on Peterborough.

Q586 Karl Turner: In relation to the intensive alternative to custody programmes, is it feasible with the current levels of resourcing for other agencies to continue in providing those alternatives?

John Thornhill: That is a very difficult one for me to answer. Simply from the sentencers’ point of view, can we say we want them to continue? We have seen, certainly, in Merseyside-I visited the IAC programme in Manchester and the Together Women’s Project, which is an accredited IAC programme in Bradford-the effectiveness of those programmes in turning the offenders around, but making the offenders think for themselves why they need to turn around, because that is what we have to do. We would like to see those programmes continued. We accept that they were pilots, but we feel that there ought to have been more plans to ensure that if those pilots were successful-which they were and which we knew they would be, and certainly the halfway report suggested they were going to be successful- we could have a rollout of those programmes right across the country. We have to look at how we harness the resources. We accept, again, there are limited resources, but we need to look at how we harness those resources in the most productive way. We are dealing there, again, with the repeat offender. We want to show four or five years down the road that we are reducing the number of repeat offenders by taking action at an early stage. We need to look at the balance right across the board so that we deal with the repeat offenders but also deal with the first and second time offender, with early intervention to prevent them becoming the repeat offenders down the road. Balancing that out is a very difficult one.

Q587 Karl Turner: In your experience as a sentencer, do you think that IACs are effective? In my experience, for example, representing defendants in the magistrates’ court, very often an intensive alternative to custody is the last thing they want. They prefer, quite frankly, a very short prison sentence.

John Thornhill: Are you referring to the offender here?

Karl Turner: Yes.

John Thornhill: Yes, you are absolutely right. I had an offender in front of me, with 110 offences, and we were looking for something that was not a custodial sentence. He said, "Just send me back because, whatever you do, I’ll not comply." What we have to remember is that, with those sorts of offenders who have a long lifetime of offending, when they first started on their criminality there weren’t the community penalties. We have to say, okay, here is a group of offenders we have to work really hard with and tackle. We did actually talk with probation and seek an appropriate community penalty. How far the offender complied I have no idea, but we have to accept that there will be some.

Q588 Chair: It is a pity that you didn’t ever know how far-

John Thornhill: I actually asked him, "Why do you want to go back to prison?" You all know the answer. "I’ve got security there. I’ve got three meals a day. I don’t have to think. I am told when to get up, etcetera. All my problems are looked after." We have failed that offender, in my view. Society has failed that offender but it has not failed them in recent years. It failed that offender many years ago. We need to be picking up that issue now and saying, "Right, what can we do with Mr Smith of 20 years ago and how can we make sure that he doesn’t get into this cycle of reoffending?" We are not going to be successful with everybody. So it is achieving that right balance right across the board.

Q589 Chris Evans: I can see time is running away with us, so I will try and be quite short. I am quite interested in your submission on restorative justice which I was looking at. Mr Thornhill, the Magistrates’ Association said: "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." You then go on to say: "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."

Councillor Khan, your Local Government Association is very positive about restorative justice. You said: "A restorative justice approach not only helps reduce crime by making offenders aware of the consequence of their crimes, it also provides reparation to the community, increases local understanding of offenders thereby reducing the fear of crime, and builds confidence in the criminal justice system." I am interested in how you both arrived at those conclusions.

John Thornhill: I certainly think some investigation discussions took place and we have had further discussions in fact. Two of our Youth Committee have been across to see restorative justice working in Northern Ireland. We have also visited a number of police authorities where restorative justice is taking place. We have discussed and engaged with organisations that are involved in restorative justice and it is quite interesting to note that some of those see restorative justice in a different light from how the police deliver it. We are, in principle, supportive of the idea of restorative justice because we can see that for certain minor offences it has an important role to play. In Northern Ireland and in some other countries of course, it is part of the sentence of the court, whereas in England and Wales at the moment it is not part of the sentence of the court. So we would like to see some developments there. We would certainly welcome the advent of more opportunities to use restorative justice within the criminal justice system.

Q590 Chris Evans: How do the police deal with restorative justice and why do you particularly have concerns? Can you give us some examples of what is concerning you particularly? That is what I want to tease out a little bit.

John Thornhill: It is about the whole issue of who is effectively sentencing, if I can use that phrase in its broadest context, and it is ensuring the separation of powers. We used to talk about out-of-court disposals and in-court disposals, and we are now saying that perhaps we should be talking about nonjudicial disposals and judicial disposals. It may be a very fine distinction, but I think it is important to have the judiciary involved in more issues, recognising there is a place for out-of-court disposals and a place for the police to deal with minor matters in the way in which they used to over the years. But we do have concerns that, if we are starting to use more and more out-of-court disposals, for instance, we are widening the criminal net.

In terms of restorative justice, we see the concerns that there may be pressures put on some of the victims or offenders to deal with it expeditiously and quickly without thinking the whole thing through. So, maybe, just that slight break with an involvement of the judiciary might help for that to happen. I am thinking of an example of a young lady in a shop trying on a dress, who gets a telephone call to say her father has been involved in a serious accident. She runs out of the shop, is picked up and is told, "Take the £60 fixed penalty. Deal with it by restorative justice very quickly. You will not hear any more about it." But when she comes to apply for a teaching job it comes back. I would suspect, and I am sure the defence advocates in the room would argue, that the fourth limb of the Feely and Ghosh test may not have been made out-permanently intending to deprive. Therefore, if that matter had come to court, it might well have been a not guilty verdict. It is those sorts of issues. The danger is to deal with it quickly. We might deal with it too quickly without picking up some of the broader issues of what justice is being delivered here. But we are not against restorative justice. We would like to see that as part of the sentence within the courts.

Q591 Chris Evans: I have to be very quick because time is running on now and we have to be finished by 11.30 for the next group. If you would just give your overview of restorative justice and how you have arrived at that point, I would be grateful.

Mehboob Khan: We can provide you with some evidence. We can send that on about how this works. But, in essence, to have public confidence, the public have to see that this isn’t paid work being done for free. This is people carrying out sentences for offences of which they have been found guilty. In areas where we have neighbourhood justice panels local people are involved as part of that so they can see that justice is actually being done. One ask would be for local authorities to have some representation on the local criminal justice board, which would bring a lot of experience and knowledge about how interventions are working currently. We are not members of that board. There were discussions earlier on about how prisons are not part of the system. If local authority officers or elected members representing the community and all the knowledge and experience we have with dealing with offenders were on those boards, then we would have some influence on how appropriate sentences are given.

Chair: Thank you, both of you, for your very different and helpful evidence this morning. We are really very grateful. We have some more witnesses. Thank you.

Examination of Witnesses

Witnesses: Jane Coyle, Director, Blue Bay Support Services, Roger Hill, Director, Community and Partnerships, Sodexo, and Peter Neden, Corporate Development Director, gave evidence.

Q592 Chair: Welcome, Mr Neden, Mr Hill and Ms Coyle. Mr Neden, you are from what I still think of as Group 4 Securicor-G4S, I believe it is now.

Peter Neden: I think that is right, yes.

Q593 Chair: Mr Hill from Sodexo and Ms Coyle from Blue Bay Support Services.

Jane Coyle: That is correct.

Chair: We are very glad to have you with us. I am going to invite Elizabeth Truss to open the questioning.

Q594 Elizabeth Truss: Thank you. I want to start off by talking about the creation of NOMS and the governance arrangements of probation. If you look internationally, there seems to be much more integration of the Prison and Probation Service. Although nominally we have NOMS, underneath that you still have the structures of Prison and Probation. Do you think that adds to cost in the system and also does it make it hard to provide integrated delivery?

Roger Hill: Would you like me to start?

Elizabeth Truss: Yes.

Roger Hill: You will know from my work history that I have gone through every iteration of NOMS. I would say that the current iteration is quite effective in terms of providing governance for the whole system. As I see it, essentially the NOMS agency is a commissioning body that sits above a range of providers. There are 35 probation trusts in there, each of which is an independent provider. There are some private sector prisons, some public sector prisons and other providers providing other services. I think that has the potential to be both costeffective and effective in terms of improving services.

Q595 Elizabeth Truss: Can I just ask the others specifically on this division between the Probation and Prison Services, and we have heard in previous evidence sessions that there is a different culture within those organisations? We have just heard in fact from the Local Government Association that the way the prisons work is not necessarily integrated with probation at a local level.

Jane Coyle: We are a very niche company. Our experience is going to be limited. However, the experience that we have found is that we don’t feel there is the same sort of will to diversify the market in the Probation Service as there is in the Prison Service. There was a formal tenderingout process, for example, at HMP Birmingham. That doesn’t seem to be happening in the Probation Service. That may hinder things. It is certainly hindering things for a small company who is trying to offer services to prisons or probation services. We have been offering services in the prisons. We have been offering presentence reports; we have been offering SARN reports.

Chair: Would you speak up, please, because the acoustics are not very good in here?

Jane Coyle: I am sorry. Yes, we have been offering all different types of reports to the prisons and probation services. They have been taken up on an ad hoc basis, but when we have tried to offer more formal contracted work to the prisons, they seem to have been quite reluctant to use services other than probation trusts. They haven’t wanted, in our experience, to think out of the box and use any other providers. We feel that the probation trusts as providers in the prisons have been effectively protected and that has made it difficult for small businesses.

Q596 Elizabeth Truss: Mr Neden, do you find that to be true and do you think there is a conflict of interest between the provider and commission role that the probation trusts have?

Peter Neden: Perhaps I can answer that question in a slightly different way. The creation of NOMS goes back to 2003 and the idea was to bring the Probation and Prison Services together. Since that time, we have had two separate organisations that have very different structures. The Prison Service is a very centralised structure, whereas probation services are in over 40 different structures. We think inevitably that leads to additional cost and it must be very difficult to manage that as an organisation. In terms of Roger’s observation, I think in the last couple of years we have started to see more coherence, but that has been a very long time coming, in our view. In terms of the conflict of interest, there does need to be greater clarity between the commissioner and the provider, and, at the moment, with probation trusts as commissioners and providers, I do not think we are there yet.

Q597 Elizabeth Truss: Having regard to the way we were talking about it in the previous session with offenders being given sentences, do you think there is a continuum, or there should be a continuum, between various types of sentences: the custodial and noncustodial community sentences? Do you feel that continuum gets broken by the different cultures?

Peter Neden: I think it can do. I think inevitably it is more difficult.

Q598 Elizabeth Truss: How would you see it working in the best-case scenario? Are there examples that you can point to where the Prison Service has integrated with Probation and works effectively at providing a sort of endtoend offender management solution?

Roger Hill: I think I agree with the premise you have just put forward and that integration does boil down to how you commission services and not to the organisational state of the different providers. The logic of your question really is that you then commission around either a locality or a group of offenders. My colleagues may correct me, but I am not aware of any particularly strong examples of that. There are some ad hoc examples. For example, the Social Impact Bond at Peterborough Prison is one option, and I am sure we will talk more about that this morning. In my previous role as director of offender management for the south-east, certainly an initiative around integrated offender management, which was the under 12-month prisoner group exclusively, getting the Prison and the Probation Service to work together, was a significant task for me, but I do not think that has been done to scale and I think it is an opportunity missed.

Q599 Elizabeth Truss: You have just talked about UK experiences. Are there any experiences elsewhere of commissioning both prison services and probation services together?

Jane Coyle: I am not aware of any, no.

Peter Neden: Not that we are directly involved in.

Q600 Chair: It is our job to find out, so we will.

Roger Hill: I think there are, but I don’t know of them.

Elizabeth Truss: I think there are as well, but it would be good to have more detail on that.

Q601 Chair: I think, Blue Bay, you said in your submission that there are "structural barriers" in place within the criminal justice sector "that actually prohibit the promotion of costeffectiveness" and that the sector is "institutionally anticompetitive".

Jane Coyle: We did say that, yes. Our experiences are mainly anecdotal because we are working from the bottom up and so they are the experiences that we have found. Over a period of five years we have been constantly knocking on the doors of probation services and probation trusts. We have written to NOMS. NOMS told us to write to DOMs. DOMs told us to write to the trusts. We wrote to the trusts and this is annually, I hasten to add-we have done this every year-and our experience has been that the trust hasn’t generally got back to us. Why this is I don’t know, but we can only surmise that there is a form of protectionism within the trusts and they don’t want other services to do this kind of work. It makes me wonder what their incentives are for others to do this kind of work. Why do they need to bother to get other people to do the work? I don’t know. All we know is that there has been an awful lot of rhetoric. We have heard what people have said. It’s great for small businesses like us, but in practical terms this has not really come to fruition. So we do feel that we have sort of reached a glass ceiling when it comes to probation trusts.

Q602 Chair: Is that a picture which anybody else finds?

Peter Neden: I think we would say progress has been disappointing since 2004 when contestability and market testing was put at the heart of the Carter Review.

Q603 Chair: What has been the consequence of removing the regional tier of NOMS for regional-based commissioning?

Roger Hill: Just to add to the last question, Chair, it is my view that that is a problem. I think the removal of the regional tier, frankly, makes little difference, although I was very much part of that regional tier. What matters is a construct that is based on a belief that a range of providers is a good thing for the system. I think the Probation Service are quite frightened of competition and, although they may describe a view that is similar to what I have just said, they don’t really mean it. So long as we ask the system to reform itself, in my view, that reform is unlikely to happen. If I could give an example of the Community Payback competition, from the perspective of probation trusts, that, I think, was an extremely unwelcome decision, but, once the decision was made, the vigour and the ingenuity with which the probation trusts have begun to enter that process is positive. My own organisation is a framework provider for Community Payback and we hope we will win some of that work. But I think it is a reasonable assumption that, having put that work in the marketplace, in the very near future there will be a range of providers delivering those Community Payback arrangements and you will have the opportunity as Government to look at the different outcomes achieved by different providers.

Q604 Chris Evans: I want to start with a straightforward question. What does the private sector have to offer that probation trusts currently do not provide?

Peter Neden: Can I make a suggestion that I think it is more the answer Roger has just given? It isn’t the private sector per se that has something to offer. It is that a market that leads to a mixed economy has something to offer and that, over time, having a diversity of providers will lead to innovation that can either be a better service or more efficiency or lower cost or some mix of those things. It is the ongoing effectiveness of the market in competition that drives that. The players that win in that market will just be the players that the commissioners choose. I would hope that the private sector would be successful in a market like that. I am sure the private sector has something to offer. But it is not just about the private sector. I think it is about the market that is established, and that is a longer-term goal.

Q605 Chris Evans: How are you going to establish a market when there is a monopoly in place?

Peter Neden: I think that is the role of the commissioners.

Q606 Chris Evans: How are you going to break up the monopoly of the Probation Service provider at the moment when there is no market there at the moment? You are just creating a false market. Also, based on your point as well, how can you guarantee an efficiency or innovation in providing probation services?

Peter Neden: I think we can influence the creation of markets, but in all Government services it is up to our client to decide they would like to have a mixed economy. Could you just remind me of your second question?

Q607 Chris Evans: What was my second question? I was saying that there is a monopoly there at the moment. How do you envisage that postmonopoly then, basically? How do you envisage the market developing in the delivery of probation services?

Peter Neden: The market would develop by commissioning a range of different services, which could be Community Payback. It could be other interventions such as drug treatment programmes. It could be offender management services, although I recognise that, particularly with the prolific and more dangerous offenders, that would be difficult perhaps for us reputationally and possibly difficult in terms of appropriateness.

Q608 Chris Evans: My major concern about this is that in any market there has to be some level of competition. How are you going to introduce competition between providers if you are just awarding a contract, if you see what I mean? When you are awarding that contract, you are awarding a monopoly to that company for x amount of years. How do you introduce competition into the market?

Jane Coyle: Could I answer that question? We have had direct experience of answering a formal tendering process. This is at the Lancashire Probation Trust. This is an example of a very good working relationship; so it has not all been negative. They put this process out. We completed a tender. We submitted that tender. There were obviously others going for that tender. We were successful and we won that tender. We won it because we have demonstrated that we are good at what we do and we can provide costeffectiveness. The difficulty is that other trusts are engaging with our services on a very ad hoc basis. That cannot promote any form of competition when it is on such an ad hoc basis. It has to be a formally set-out tendering process, which Lancashire have done. They have done it. Why can’t other probation trusts do it? There is no formal or consistent process that is going on throughout the service. It seems completely arbitrary.

Q609 Chris Evans: How would you introduce the consistency that you have seen in Lancashire at the moment across the board? How would you suggest that is rolled out by Government then?

Jane Coyle: I am not an expert in deciding how those kinds of things come about.

Q610 Chris Evans: What is the best feature of Lancashire compared to your experiences with other probation trusts?

Jane Coyle: Well, if Lancashire can do it, why can’t another probation trust do it? Why can’t they tender out different processes-different parts of offender management? Ours is presentence report writing skills services. There are many different parts of the offender management model that could be tendered out. We are probation officers. We have the skill to do it, but we can do it cheaper.

Roger Hill: You are describing a commissioning problem. The reason that there isn’t a market and there isn’t active competition is because the commissioners are not putting work to the market. It is providers and, as providers, we can influence that and we do it on a weekly, sometimes daily, basis. We are very keen to compete amongst ourselves and with the public sector. But until the commissioning decision is made, rather like the example I gave of Community Payback-and they are difficult decisions to make; I know they are because I have been on that side of the fence-there is any number of views as to why you shouldn’t do it or, if you have to do it, why you shouldn’t do it now. Those decisions have to be the first ones. Once you start to make them and become more confident, and NOMS becomes more confident as a commissioner, and I think it will under this new construct, then that market will develop. That is how markets do develop.

Jane Coyle: But this does seem to have been in place for a while, though. That is why we are here now because nothing seems to be done. All the rhetoric is there, but there has been no meaningful action, as far as I can see.

Roger Hill: That may be true and I am probably asserting that it will develop a little more confidently than perhaps I should. I do have some confidence in the new model of NOMS which came into place a few months ago.

Q611 Chair: What do you mean by the "new model"?

Roger Hill: The move away from regions. So the centralised model-

Q612 Chair: This is seen as problematic by quite a lot of people because the Community Payback commissioning system is based on fairly arbitrary areas which are not the same as areas used for a variety of other purposes. There is none of the coterminosity which we were hearing about earlier and which is thought by some of the smaller, not-for- profit organisations to be too large then to be contracted to.

Roger Hill: If I can comment on that, the issue of the size of the Community Payback lots is seen to somehow indicate that because they are large they cannot deliver locally. I don’t agree. To create an operational model to ensure delivery, you can very easily build in locality. The councillor who was on your previous panel talked about a wish to join a local criminal justice board. I believe he was from West Yorkshire. That is about localism. How you construct the Community Payback lots to ensure that you get efficiency into the scale of what you are offering doesn’t for a moment mean that you don’t expect us as providers to build in local decisionmaking into Community Payback as a delivery. I don’t believe those two things are a poor fit with one another. Quite the contrary: I should think they will fit together quite well.

Peter Neden: I think there is some good evidence of that in the electronic monitoring contracts that are effectively let nationally, but there are obligations on the providers to deal locally with police, youth offending teams, criminal justice boards, local magistrates and so on.

Q613 Elizabeth Truss: If it was sliced up in a different way, so it was by a group of offenders or locality, then presumably that Community Payback lot would be put with other services so that it could be done more locally. Because all the things are being sliced up into categories at a national level, to make it efficient you have to do it over a larger area.

Roger Hill: I think it boils down to choices actually. It goes back to how the commissioners decide to construct the market. What they have done so far, you are quite right, is to take a lateral slice through the market and say, "We will put this theme of Community Payback out there and see who can deliver it more effectively and efficiently." I think the only other way you can do it is to take a locality. So you take a place like-

Elizabeth Truss: Vertical slicing.

Roger Hill: Yes, vertical slices such as Bolton or Brighton or something, and you say, "For the whole package of services in that locality, can you deliver a better service?" It is probably the case that the vertical slicing, which links quite strongly back to Patrick Carter’s original model of offender management and following the individual through the system, makes, in my view anyway, for a more effective approach.

Q614 Chris Evans: I just want to finish my final question. The Government intends to publish a comprehensive competition strategy for prisons and probation in June 2011-this month. What discussions have you had with the MoJ and NOMS about what you would like to see in that strategy? That is to all of you.

Peter Neden: We have put our arguments reasonably consistently over the previous five years. We see that the private sector has a useful role in the delivery of justice.

Q615 Chris Evans: But have you spoken to the MoJ or NOMS about what you want to see in that?

Peter Neden: Yes, at many levels, with Ian Poree and Michael Spurr, indeed.

Roger Hill: We have too, and we have also responded to the Green Paper. We would like to see the development of a market in the community. Sodexo employ me to be in a position to respond to that. We would like to see the continuing competition of public sector prisons and we would like to be part of constructing how payment by results, localitybased commissioning, placebased budgets and all of that develops, because we take the view that there isn’t a straightforward simple answer as to how to do that. It requires a lot of thought and a lot of discussion and we would like to be part of it.

Jane Coyle: Ceaselessly. I think I have probably explained that. We have not stopped knocking on doors and writing to people explaining that we can offer a very high quality service a lot cheaper. It is frustrating when those examples are ignored and trusts are continuing to employ employment agencies to do the work that we can do a lot cheaper.

Chris Evans: I noticed that earlier in your response, yes.

Q616 Mr Buckland: We started talking about payment by results. We know in other areas of Government that already exists. For example, payment by results has been used by the Department for Work and Pensions and the Department of Health. What lessons do you think can be learned from the experience with those Departments with regard to delivering payment by results in the context of criminal justice? That is a question to each of you.

Peter Neden: I can speak for the DWP because we are involved in that. I am not so familiar with Health. I think the first thing is that the answer isn’t obvious and immediate. It might be a simple concept, but delivering it in reality is quite complex. The second point I would make is that it is not all or nothing. We haven’t gone from a world where people are just paid money for trying to do things to a world where we are only going to be paid for outcomes. There is a transition period that allows us as providers to become more confident about the payment-by-results system and to build the evidence base that is in the interests of both our clients and us as providers to be able to make those steps.

The third point I would make is that there are lots of different ways of doing this. When we think about that in relation to criminal justice, softer measures may also be helpful. It could be that completion of programmes is akin to output, even if it is not as good as ultimate reoffending rate. But it may at least be achievable, and we shouldn’t make the ideal the enemy of the good as we walk down this journey in criminal justice. There is a lot that could be done there.

Q617 Mr Buckland: Do you think there need to be more tests than just reducing the rate of reoffending-that there needs to be a more subtle approach?

Peter Neden: I think it might need to be more subtle and more nuanced, particularly as the evidence base just is not there at the moment.

Roger Hill: I don’t know a great deal about Health or DWP. I would make two comments. First of all, the extent to which you can use a payment-by-results mechanism to be cashreleasing is more straightforward, I believe, in DWP than it is in criminal justice. For example, if you get somebody into work and they stop claiming benefit, you have instant cash release. If you get somebody on to a sentence in the community who does not use a prison place, that is not instantly cashreleasing. There is that complexity built around the criminal justice side of it.

Jeremy Corbyn: Well, it is cash-releasing actually. It costs less.

Q618 Mrs Grant: Somebody gave evidence earlier saying that, if somebody goes to prison, the average cost is about £55,000 a year. That cost is triggered from the moment they go through those gates.

Roger Hill: That is right.

Q619 Mrs Grant: I don’t see the question-

Roger Hill: There are a lot of fixed costs in having the cell, whether somebody is in it or not. You can’t simply stop funding the cell. That is the point.

Q620 Mrs Grant: But, as soon as they are in and eating food and requiring attention, that £57,000 is clocking up, isn’t it?

Roger Hill: Yes.

Q621 Mrs Grant: So why are you saying there can be no real equation in terms of results?

Roger Hill: I am saying when somebody stops claiming benefit because they have found a job-

Mrs Grant: I have got that bit.

Roger Hill: -there is no other cost attached to that, so that releases the cash. When somebody doesn’t use a prison cell, you still have the fixed costs of the prison cell. You are right: you don’t pay for their food. The variable costs reduce very slightly. But you still pay for the fixed resource, which is the prison.

Q622 Ben Gummer: Until you get enough people to close down the site.

Roger Hill: That is right. The cashreleasing mechanism, whilst ultimately there, is slower and more difficult.

Q623 Mrs Grant: But it can be calculated, obviously, because there is not a human body requiring attention going through the gate, is there? There isn’t, is there?

Roger Hill: The variable cost can be calculated because there isn’t a person in the cell, but the cost of having the prison remains a fixed cost.

Mrs Grant: Of course.

Q624 Chair: Until you get to the point where you have reduced the demand and you don’t need that prison.

Roger Hill: Absolutely, yes. They are simply more difficult steps along the journey. It is the same journey ultimately, but there are some quite significantly more difficult barriers within it. That is my first point. Secondly, you need to be absolutely clear what the result is that you are trying to purchase. The outcome results of somebody in employment and rather less outcome results, I think, in health of whether somebody got better are slightly-well, you need to clarify those. In a payment-by-results mechanism, you have to be clear about what the result is that you are trying to buy. Are you trying to buy the fact that somebody offends less, or are you trying to buy the fact that somebody completed the sentence that the court imposed, for example? They are two issues that you need to differentiate within a PbR model.

Q625 Mr Buckland: Wouldn’t another issue be the cause of the improvement? Sometimes it is difficult to work out precisely why it is that somebody stops reoffending.

Roger Hill: Absolutely, yes. You are stealing my third point.

Mr Buckland: I am sorry. I am speeding things up.

Roger Hill: The cause and effect argument is absolutely enormous, as you say. But in a sense that doesn’t really matter to the purchaser if you are clear about what the result is that you are buying because you transfer the risk at the point that you do that to the provider.

Q626 Mr Buckland: Of course we could argue that it is a bit of a red herring and we don’t need to get so hung up about it.

Roger Hill: Absolutely.

Jane Coyle: We have no real experience of the DWP or Health Service models, but the point that we have to offer is that payment by results can lead to improvements because we are evidence of that. We are effectively paid by results. If we don’t produce presentence reports to the courts that have gone through the quality assurance process, we won’t get paid. Every time the court uses us to produce a presentence report, the probation trust saves itself, to be precise, £59. That is another way of looking at it, but that is a payment by result. We think that for small businesses payment by results might be quite difficult to manage. I agree with what Roger is saying in that it depends what your outcomes are. Again for small companies, if it was reoffending, it would be very difficult for us to manage.

We have recently created an elearning programme for male perpetrators of domestic violence. How would we manage that by payment by results? Would it be that in two years’ time, if they reoffended, we would have to give some money back or we would only get a certain percentage of what we were going to get? It would be quite difficult for a small business. It would be easier for a large company to manage payment by results. The other point I would like to make about payment by results is that, maybe, that is something that could be given to the trusts to consider. As an incentive for probation trusts, they could be paid by results.

Q627 Chair: Can I just go back to something you raised earlier in the light of what you have just said? You are a relatively small company.

Jane Coyle: We are, yes.

Q628 Chair: You have had difficulties, which you describe, but they seem to be much more difficulties of lack of interest or response from trusts.

Jane Coyle: Yes.

Q629 Chair: Have you been in situations where the basic structure of a contract which you could fulfil your part of was denied to you just simply because of the way the contract had been set up? It was designed in a way which would not enable a small provider to bid.

Jane Coyle: Yes. It is a very interesting point because it has hindered us. We know where there are good staff. They are employed by probation trusts at the moment. We need proper contracts to give those staff job security. We have found that we have been offered shortterm contracts-three-month contracts, for example.

Q630 Chair: Isn’t that just the nature of the business you are in?

Jane Coyle: But this is what we are trying to move away from. We are trying to move to a more formal business so that we can retain and keep the best staff, because that is what it is all about. It is providing quality work. It is almost impossible to work on these very shortterm contracts. With Lancashire, we have entered into a calloff contract with them which offers them a very high degree of flexibility. It is really thinking out of the box. They have really gone that extra step. It is essentially a threeyear contract that we have with them.

Q631 Chair: The point I was getting at was those circumstances where the minimum size of contract, minimum area covered and things like that would simply preclude you. It was not that the work was difficult for you to provide on what was almost like an agency basis, filling in somebody else’s gaps, but simply you were disqualified from applying because you had to be of a certain size or make a certain bid. You haven’t had that particular experience.

Jane Coyle: We haven’t had that directly with probation trusts. We have had that with the private prisons.

Q632 Mrs Grant: Jane, I think you may have covered it, but I just wanted to clarify this. You are a smaller company. If in future a larger part of the work that you did, say, 75%, was related to payment by results, do you think it would be manageable for you to work the cash flow of your firm and pay everybody and keep it going on that method, or would you have to have a fairly significant proportion of other work to help your cash flow?

Jane Coyle: It is a very good question and it is something that obviously we have thought about. When we saw what the questions were going to be, we thought about exactly what you have said. It is difficult to answer because we haven’t gone down that road yet. I think we would possibly need some assistance in terms of how we could manage that, whether that would be working with others, in partnership with others. I do not think anything is impossible and, if that was definitely going to be the way that we would have to work, we would certainly find a way of doing it.

Q633 Mrs Grant: But cash flow is going to be key, isn’t it?

Jane Coyle: Cash flow is going to be an issue for a smaller business, definitely

Peter Neden: Helen, could I suggest that that is not just related to small businesses? It is an issue for large businesses. But it is not just cash flow. It is also about certainty. In a world where there just isn’t enough evidence, businesses don’t just take wild guesses. They take informed investment decisions. Cash flow is one aspect of that, but certainty is the other.

Q634 Mrs Grant: I see the planning point as well, but sometimes with larger businesses there are other streams of more certain revenue coming in-not all, but certainly in the legal sector, for example, there might be, whereas you have a much smaller firm. You might be more dependent and that could have a very severe effect on whether you can continue to provide that service. I do take on board what you are saying, but that was the particular issue I was concerned about.

Peter Neden: It was certainly a factor in the Work programme, where I think we have around 300 subcontracting providers and many of those would not have been able to contract because of these issues.

Q635 Chair: You have around 300 subcontractors?

Peter Neden: Yes.

Q636 Jeremy Corbyn: I am interested in that last answer, but it doesn’t sound very satisfactory if you are getting a contract with the Probation Service or any other provider of justice and you then subcontract that to 300 other people. It sounds to me like a repeat of the disasters of Railtrack and its 1,000 subcontractors. But my point is that you are in this to make money. How profitable is it for all three of you?

Jane Coyle: I think there is an awful lot of work out there.

Q637 Jeremy Corbyn: No. I said how profitable is it?

Jane Coyle: Do you mean in terms of figures?

Q638 Jeremy Corbyn: For your companies, yes.

Jane Coyle: I would actually find that quite difficult to answer, if I am honest. Is that something I could put in writing to the Committee?

Peter Neden: How profitable is what?

Q639 Jeremy Corbyn: Your contracts with the Probation Service.

Roger Hill: We don’t have any contracts with the Probation Service, so they don’t make any profit.

Q640 Jeremy Corbyn: What about your other contracts within the judicial system?

Roger Hill: We have contracts for prisons which clearly do run with a profit element, but we provide a service for an agreed contracted price and we have won that contract in the market against other providers for that price. Interestingly, we have just made a bid for two prisons and lost them, predominantly on price. That is the nature of the private sector operating in that market. The difference that you have between our companies and the public sector is that you do have a service guaranteed at a price that you have contracted with.

Q641 Chair: What do you tell your shareholders in your annual report about the current and prospective profitability of this area of work as compared to the other areas in which you operate?

Roger Hill: Chair, I am sorry, I cannot answer that question. I don’t know the answer.

Chair: We will have to look at your annual report.

Peter Neden: I am not sure that we do, but our margins are around 7%.

Q642 Jeremy Corbyn: What about your subcontracting arrangements? I am quite surprised by that. Who are these subcontractors?

Peter Neden: For the Work programme we have a whole range of partners that we are working with to accommodate the need to keep the supply chain of a very large number of voluntary and other private sector organisations. That was a requirement of the bid. That is the reason for that. There is a whole range of small charities that help people with particular needs where we think they can do a good job for us.

Q643 Jeremy Corbyn: Isn’t this a management nightmare?

Peter Neden: No. One of the things we bring is the ability to manage that supply chain. We have systems, process and management in place that will do that for us.

Q644 Chair: This is the final point. There are three groups of people I just want to mention whose confidence in the system is rather important. They are sentencers, like the Magistrates’ Association we heard from this morning, the victims and the public in general, all of whom might doubt whether the private sector is going to earn their confidence. To what extent do you think it is possible to write into the contracts engagement with those categories of people? Are they measurable things or do we just rely on the good nature of your organisations or, indeed, the commercial advantage in establishing good relations with those groups of people?

Roger Hill: My organisation is a very valuesdriven organisation. We opt out of markets where we can’t use our values. In fact we rule ourselves out of more than half the corrections markets across the world because of the death sentence or the fact that staff are required to carry guns. We stand very strongly by our values. It is arguable whether you should have to, but I think you can and it would be a good thing to write into contracts as you describe. It is very interesting that in my last job I was director of offender management for the south-east, which was the point in my career at which I became much more convinced by a marketdriven philosophy. I talked a great deal to a great many groups, including a lot of sentencer groups, about what mattered being the provision and not who provided it. I never had anybody disagree with me on that. Whatever you want as a service, you can build in whatever expectations you like into those contracts, and all the organisations that want to bid for it should be able to convince, because there is a proper story to tell, the three groups that you have described.

Peter Neden: Also, you are talking really about governance and, in addition to operating in the legislative framework, each of these contracts operates under a professional framework. So we employ people with professional qualifications. We operate under the client scrutiny of contract governance, which is something that in state monopolies often doesn’t happen actually. But then we also operate under the various inspectorates-the IMBs. So there is quite a lot of governance placed upon us. If we wanted to add another layer to that, I don’t think that would be difficult because that is part of doing business.

Q645 Chair: One other group which is sometimes mentioned in this context is your actual clients, service users, people who have committed offences and who can sometimes contribute quite useful knowledge and experience into what you do. Should you be required to engage with them in particular ways over and above their actual sentence in order to establish their response to what has happened to them? Is that something you should be required to do or is it something you would do anyway?

Jane Coyle: If I could comment on that point, certainly that is something that goes on within the Probation Service at the moment. It has been a number of years since I have worked as a probation officer, but certainly when I was involved there was a form that offenders would have to fill in. It would be part of the end-to-end offender management process, and they would have to give their opinion on the service they had received. That piece of paper was not just then thrown away. Those results were accumulated and they were taken on board as serious comments. That is something that is in place. Any organisation working with the Probation Service needs to use the structures that are already in place because obviously that is where the quality of work is. There is a lot of quality of work there. If I may also mention about the sentencers, that is something that is very relevant to us in terms of how we gain their confidence. Again, as someone who has worked in the Probation Service and worked in the courts, the comments of sentencers are crucial. Taking probation officers out of court is potentially problematic and not getting that direct feedback from sentencers, and also I think the presentence report and the OASys assessment is the crucial document to give sentencers the confidence to impose noncustodial sentences. Having a wellargued document in front of them makes them less likely to impose short custodial sentences and go with the noncustodial options. A probation officer in court is going to improve dialogue between the sentencers and the service.

Q646 Chair: Thank you very much indeed. We are very grateful to all three of you. Did you wish to add something?

Roger Hill: I just wanted to add something on the issue of service users, Chair. It is an issue about which I feel very strongly. You probably know that in the Peterborough Social Impact Bond project, the service delivery organisation, which is the St Giles Trust, uses exoffender mentors to work with those prisoners being released. I have looked at the research and I know the St Giles organisation well, and I think that is a model that has very considerable opportunity for development. I believe, fundamentally, that service users or exservice users, if we can call them that, should be used in the design of services, just asking people what worked or what would have worked for them in this context. Before I left NOMS, I was a very strong advocate of the view that a service user perspective should be built into the specification for the Community Payback bidding round. I think you are absolutely right. There is considerable scope for a service user and exservice user involvement in both the process of service design and delivery, and it is a largely unexploited market.

Chair: Thank you very much indeed. As I say, we are very grateful to all three of you.