Prisons and Courts Bill

Written evidence submitted by the Public and Commercial Services union (PCS) (PCB 09)

Prisons and Courts Bill committee


1. The Public and Commercial Services union (PCS) is the largest trade union in the civil service, representing over 190,000 members. We represent workers throughout the civil service and government agencies and also organise widely in the private sector, usually in areas that have been privatised.

2. Our members include those who work in National Offender Management Service (NOMS), the Crown Prosecution Service (CPS) and Her Majesty’s Courts and Tribunals Service (HMCTS) undertaking all the key duties in the full range of posts necessary for prisons, courts and tribunals to operate.

3. We welcome the opportunity to submit written evidence to the public bill committee and would be happy to supplement this with oral evidence.

4. PCS welcomes any legislation aimed at improving rehabilitation of offenders but is concerned that it will take many years to undo the damage done to our prison system by the cuts it has experienced since 2010.

5. We recognise that digitalisation is at the heart of the government’s court reforms. We welcome investment being made to improve digital services in courts but embracing technology should not come at the expense of local justice.

Part 1 - Prisons

6. Massive job cuts and the hurried pace of change programmes have led to the current crisis in our prison system. Prisons have been so badly damaged that there is no quick fix that will restore them.

7. Section A1 of the Bill builds into legislation the purpose of prisons to protect the public and rehabilitate offenders to lead law abiding and useful lives whilst in prisons and after release.

8. This is welcome but will only be achievable with significant monetary investment being made to restore staffing numbers and decent living accommodation for prisoners. Only time can rebuild the lost capability that existed before, grown from decades of knowledge and lived experiences of former staff.

9. It is disappointing that section A1 ‘Purpose of Prisons’ makes no reference to the decency agenda, a key recommendation of the Woolf Review back in the early 1990’s. Therefore we would like to see A1(d) amended (page 1, line 14) amended to read ""maintain an environment that is safe, decent and secure".

10. The answer to the self-inflicted crisis in our prisons is significant investment and a return to at least pre-austerity spending levels.

11. The justice secretary has announced plans to create 5,000 new prison places with new sites at Full Sutton in east Yorkshire, Hindley in Wigan, Rochester in Kent and Port Talbot in south Wales having been earmarked for development. We recognise the need for new, modern prisons to be places that can provide decency and believe that these should be run in the public sector. However, we are concerned that bigger does not necessarily mean better, in terms of the reforming the prison estate. For example so called ‘supersize’ prisons can take prisoners further away from their families, and can have a negative impact on rehabilitation.

12. It is inconceivable that restoring prisons can be done by patching up only parts of the system. Front line staff do not work in isolation. All prison staff and managers were involved in the unmanageable task of trying to stabilise prisons. A holistic approach to prisons reform is therefore essential.

13. While 7,000 prison officer grade staff have been lost since 2010, the same number of non-officer grade staff are also being cut. The recruitment of 2,500 officer-grade staff is a drop in the ocean compared to what is needed to ensure our prisons are once again safe, decent and secure. With the new officers not expected to be in place until 2018, and given the poor retention rates, this is likely to prolong the period of severe understaffing for some time.

14. PCS has reported for years that the service is under serious pressure evidenced by the rising violence and security threats and workplace stress which has resulted from understaffing.

15. The challenges that have always faced our prisons intensified dramatically after the prisons restructure and government benchmarking programme between 2012 and 2016.

16. The MoJ has been forced to concede that staff reductions have contributed to the rise in assaults in our prisons since 2012. [1] In the 12 months to the end of June 2016 assaults rose by more than 34% to 23,775 (including 5,954 on staff). By the end of November 2016 there had been 102 suicides behind bars – the highest rate for a calendar year since records began. [2]

17. Prior to the austerity measures put in place by the Conservative-led government, from 2000-2009 prisons were in a stable and improving state. The re-conviction rate for adult offenders in 2009 was 39 per cent, a fall of 3.7 per cent since 2000. In 2009 the frequency re-conviction rate was 140.5 offences for 100 offenders, a fall of 24 per cent since 2000. [3]

18. Statistics also showed that since 2000 the overall proportion of young offenders in each cohort who re-offended decreased by 3.3 percentage points from 40.2 per cent to 36.9 per cent. From 2000 to 2009 the re-offending frequency rate had fallen 27.0 per cent from 151.4 to 110.5 offences per 100 young offenders.

19. Clause 2 (6) section 5B (3) should to be broadened as it currently only refers to the Chief Inspector considering the leadership and effectiveness of the governor or director of the prison. We believe this ignores the fact that executive governors are providing the overall leadership of the current six reform prisons (Coldingley, Highdown, Holme House, Kirklevington, Ranby and Wandsworth) and in the recently announced groupings (Deerbolt, Durham, Ford, Lewes, Stocken and Sudbury).

20. Prisoner support throughout their sentence and following release is vital work in ensuring re-offending does not occur. Instructional officers therefore have an important role to play in the rehabilitation of prisoners. However, the conditions that currently exist in our prisons are not conducive to this.
Instructional officers spend six hours each day currently with unsafe numbers of prisoners in confined workshop areas. They are regularly subjected to the increased violence and attacks experienced by officer-grade staff.

21. This consistent and extended prisoner contact time makes this group of staff uniquely placed to influence prisoner behaviour and help prisoners prepare for life after prison. Yet they are rarely given the due consideration that they deserve. As key personnel in the transference of skills, their work is massively underrated and this, combined with low starting pay, unsafe prisoner to staff ratios and poor working conditions are presenting retention problems culminating in loss of experienced staff and a demotivated workforce. A successful rehabilitation programme is dependent on recognising the value of this positive work with prisoners and making appropriate investment is urgently needed to assist them in delivering the required reform objectives.

22. We welcome plans in clause 21 (page 19) aimed at tackling the use of mobile phones. It is worth noting that these reforms are long overdue and unions have been arguing for this issue to be addressed for many years.

Part 2 - Procedures in Civil, Family and Criminal Courts

23. PCS is concerned that HMCTS plans to introduce changes by 2022 which will result in major job losses due to the closure of many of the existing courts, the lessening of judicial oversight, reliance on digital solutions and a shift from local justice delivery to just five or six contact centres.

24. PCS believes the overwhelming majority of the proposals are driven by the desire to cut costs and realise assets rather than any genuine desire to improve access to justice or improve the service provided. The Courts and Tribunals service is creaking under unrelenting pressure caused by chronic underfunding over many years. MoJ is not a protected department and has seen large scale budget cuts since 2010.

Digital Working

25. Digital working is at the heart of the government’s proposals. PCS has repeatedly raised concerns regarding the reliability and fitness for purpose of IT and product design.

26. We are conscious that millions of pounds have been spent over the last eighteen months or so introducing new technology into court rooms. In our members’ experience new equipment is unreliable and there are too many costly and time consuming workarounds that have to be turned to when digital technology does not work or where servers are down. IT initiatives such as the use of video-links, virtual courts and digital court files have increased the time it takes to deal with cases. The increased digitalisation of the Magistrates' Courts is not only slowing down justice delivery but threatening the quality of its delivery.

27. Equipment failure can lead to adjournments, increasing delay. According to a rec ent TUC report [4] only 4% of staff who responded to a survey agreed that IT in courts works effectively. That survey took place at a time that ensured its results could reflect new technology already introduced. PCS members report problems in getting the link to prisons to function and cutting out, and court to court links where a witness can be seen and not heard and vice versa. Bridge links are particularly unreliable. PCS members report regular technical problems with links whether to vulnerable witness rooms, prisons or to police stations.

· Live video and audio links

28. Clauses 32-34 and Schedules 4 and 5 of the bill provides for people to "participate in" court proceedings by video or audio link. Video is always to be used if available and defendants cannot take part by audio. 

29. This opens the door to trial over the video link. The vast areas that courts now cover for some "regulatory" offences mean that some individuals may prefer to participate in a trial for some offences such as using a television without a license rather than travelling over 50 miles. We are concerned that the Bill does not require consent to be tried over the video link. A vulnerable prisoner may come under pressure to have relatively serious offences tried over the link to save the costs of transport. Less articulate individuals and those with hearing, sight or mental health issues could be at a significant disadvantage and unable to adequately express their difficulties or put forward their defence. With the reduction in publicly funded representation, due to legal aid cuts, people who may not be able to express themselves well are already trying to deal with their future liberty or family issues over a video link. Accessing copies of papers in any format over a link is already difficult.

30. Giving evidence by video link and conference call can create barriers that do not exist with face to face communication. Unreliable technical equipment compounds the difficulties that such individuals already face and reduces rather than increases access to justice. There is an inherent risk in any form of telephone or online hearing of ensuring that the person responding is the party to the proceedings and that they are not subject to undue inappropriate influence.

31. It is not uncommon in criminal proceedings for the Crown Prosecution Service to make an application for a witness to give evidence by video link at the court only for that witness to indicate that they would prefer to give their evidence in the court room to ensure that they give their evidence in the best way they can. Ensuring that the quality of evidence received is high should be a paramount consideration to avoid miscarriages of justice.

32. All technology needs to be robustly tested and objectively evaluated in terms not only of its reliability but the impact it has on the quality of evidence that is given and how that evidence is perceived before any decisions are made to further remove access to local and face to face justice. Independent scientific evidence demonstrates the importance of body language in terms of communicating. Body language can be key in determining the credibility of a person's evidence.

33. Clause 34 and Schedule 6 of the Bill provides for public participation in proceedings conducted by video or audio. Whilst closing local courts HMCTS will be required to spend some of its limited funds on "designated live hearing centres" places where the public can watch court proceedings. PCS is concerned about the safety of persons connected to cases in this environment. Members of the public could be the family of an injured party or friends and family of the defendant. If they attend as members of the public they are not obliged to disclose this. There will not be magistrates or a judge to monitor the behaviour of members of the public connected to the accused. In order to make these venues safe significant costs may be incurred.

· Automatic online conviction

34. Clauses 35 and 36 of the Bill provide for automatic online conviction. It is notable that in the space of less than two years England and Wales has gone from the majority of less serious offences being dealt with by three Magistrates to providing for them to be dealt with by computer. One of the more surprising aspects of this is all the public money wasted providing the "half way" step of the Single Justice Procedure with such a limited shelf life. A very costly and back door way of getting to online conviction without a public outcry. PCS had always anticipated that conviction by computer would be the next stage.

35. PCS is deeply concerned and opposed to the principle of conviction online. The convicting of an individual is a judicial act and cannot be delegated to a computer which is unable to recognise if a plea is equivocal or to reflect mitigation in terms of sentence. A fixed fine is a fixed penalty. The ramifications of having a fixed penalty and/or a conviction can be far reaching even in relation to non-imprisonable offences.

· Rules for an online procedure in civil and family courts and tribunals

36. Clauses 37- 45 provide for an online procedure in civil and family courts and tribunals. The developing of a single online system for starting and managing cases across the jurisdictions will exclude those who do not have access to IT. Deciding cases exclusively online will further remove access to justice. This is all the more concerning when you consider that it is thought that as many as one in four adults, around 12 million people, in the UK, do not have basic online skills.

37. PCS is gravely concerned that the Bill provides that there are to be rules of court which must require t hat kind of proceedings, or one or more aspects of that kind of proceedings, to be initiated by electronic means. [5] We believe no application by a private citizen should be required to be issued only electronically. PCS maintains that there should be alternatives to engaging digitally and these should be being developed at the same time as digital options. Whether proceedings are criminal, civil, tribunal, probate or family in nature, we believe that making digital the default option will in many cases restrict or entirely remove access to justice.

· Prohibition of cross-examination in person in family proceedings

38. PCS welcome the provisions of clause 47 that will prevent survivors of domestic abuse from being cross examined by their abuser or alleged abuser. It is a reform that PCS has been calling for over a considerable period of time. The fear of cross examination by an abuser we believe has prevented or hindered many citizens in seeking access to justice.

39. The political choice of austerity has left many families in poverty and unable to get help to defend themselves from unjust claims. Abusers have used the court system to continue the abuse. The impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 has led to an increase in litigants in person and has meant that the proportion of applications that are being contested and taking longer are increasing with a rise in the number of abusers cross examining those they have abused. Litigants in person are less child focussed in their approach. A party who is the subject of abuse control without access to money or technology may feel the digitised system just continues the abuse.

40. PCS maintains that more needs to be done to support those surviving domestic abuse . For example the government should significantly widen the gateway to private family legal aid so that fewer citizens are left unrepresented. PCS also maintain further measures are necessary to ensure family and civil courts support vulnerable witnesses. Court closures has meant that for many witnesses in family and civil proceedings they must share a waiting area with the party who has abused them.

Part 3 – Organisation and functions of courts and tribunals

Functions of staff of courts and tribunals

· Abolition of Role of Justices’ Clerk

41. The role of Justices' Clerk is abolished by the Bill. It is not clear how the new system will work. PCS believe that the driving force behind the decision is not the better administration of justice but a desire to cut costs with work pushed down the grades. PCS has not been provided with any evidence of a decrease in workload which justifies such a reduction in these posts. The decision to remove the statutory role of the Justices’ Clerk by inference downgrades the needs of the lay benches and signifies an expectation of a reduced role for the lay judiciary. Currently the Legal Advisers to Magistrates often do both criminal and family courts. This already leads to conflicting demands. The Bill proposes legal advisers being appointed by the President of thy Family Division for Family, the Lord Chief Justice for Crime and the Senior President of Tribunals when acting in the capacity of Tribunals Registrar a robust management structure with appropriate authority needs to be established to make this workable. The Heads of Legal Operations will be too remote to be more than figureheads.

· Creation of case workers

42. Clause 50 and Schedule 11 provides for court and tribunal staff to provide legal advice to judges of the family court and justices of the peace, and to exercise the functions of courts, judges and tribunals in cases where procedure rules so provide. The provisions are extremely widely drawn. In recent years our lawyer members have increasingly been required to take on more and more work that has previously been undertaken by Judges. PCS has no concerns about the competence of staff to undertake these roles, but what we find objectionable is that these relatively low paid staff are being used to save HMCTS money and believe that they should be properly remunerated . Our members are paid far less than other government departments and have seen a real cut in their standard of living over the last ten years due to the government’s policy to freeze and then cap public sector pay.

Part 5 Whiplash

43. We are concerned that plans to clampdown on perceived fraud in whiplash claims actually include much wider ranging plans to remove access to free or affordable legal advice for all personal injury claimants.

44. Behind the headlines claiming car insurance premiums will be reduced due to a restricting bogus whiplash claims, is a sinister attempt to impose an increase in the small claims limit for all personal injury claims, whether they occur on the road, in the workplace, or anywhere else.

45. There was no justification given in the government’s consultation paper [6] for workplace accident and disease claims, employer liability cases, to come under scope of these changes. The government’s stated reasons for their proposals have nothing to do with work injury cases: There is no suggestion of fake claims by injured workers; work injury claims have fallen over the last ten years; and there is no evidence that including workplace injuries will benefit the public in any way.

46. In any case the reasons for the government’s reforms to the whiplash claims process, that there has been a rise in bogus claims and that tackling them will result in lower premiums for motorists, has been discredited. Capital Economics for example have said that it is a mistaken belief that a rise in whiplash claims has been responsible for the rise in motor insurance premiums. They put it down to the insurance industry not being competitive, and that instead of resulting in meaningfully reduced premiums for motorists, the reforms are more likely to boost insurers’ profits by up to £0.7 billion per annum.

47. We believe that these reforms are unnecessary and should be scrapped. They do the exact opposite of the Prime Minister’s stated intention of ensuring that the "just about managing" were to be supported by her government "driven, not by the interests of the privileged few".

48. If the small claims limits are increased they will further restrict access to justice for hundreds of thousands of people injured every year, not just on the roads but anywhere, including at work, losing their right to affordable, independent legal advice. The policy will only serve to deliver more profit for multinational insurance companies.

March 2017

[1] Ministry of Justice ‘Safety in Custody Statistics Bulletin – 27 October 2016’ page 11

[2] The Howard League for Penal Reform

[3] Ministry of Justice – Adult and juvenile reoffending statistics 2009

[4] TUC – Justice Denied – 19 October 2016

[5] Prisons and Courts Bill – clause 37 section 1(b) (page 38)

[6] Ministry of Justice – Reforming the soft issue injury (whiplash) claims process


Prepared 28th March 2017