26
Examination of witnesses
Andrew Neilson, Phil Bowen, and Gavin Dingwall.
Q17 The Chair: Good morning, everybody, and a particular welcome to Andrew Neilson, the campaigns director for the Howard League for Penal Reform; Phil Bowen, director of the Centre for Justice Innovation, and Gavin Dingwall, senior research fellow at the Sentencing Academy. Thank you all very much for coming. This is our second evidence session looking at community sentences.
We all have questions for you, but I will ask the first one. Obviously, there is such a great variety of content of community sentences that we wonder what you think characterises the ideal community sentence? What are the best practices in the delivery of community sentences?
Phil Bowen: In 2021, we published a paper called Smarter Community Sentencing, which identified a number of evidence-based principles for all community sentences.
First, community sentences should be delivered swiftly, because we want motivated people to be able to complete their punishments and get back to being productive citizens. Secondly, community sentences should be relational, because building positive relationships drives desistance from crime. Thirdly, community sentences should be reparative to communities and victims to allow offenders to atone for the wrongs they have committed. Fourthly, they should be collaborative, because we know that working with courts, the police, and housing, employment and treatment services has been shown time and again to work.
Finally, they should be responsive: the progress of people in community orders is dynamic, so we need to empower front-line practitioners to use their skills and training to exercise greater professional discretion. Those were the principles that we came up with.
Good community sentences should also have a punitive element. I know we will get on to discuss how people experience community sentences, and there are all sorts of ways in which people on supervision of community sentences pay back through that kind of punishment. In order to have strong and smart community sentences, we need to recognise that they are also a punishment.
The Chair: So it is a mixture of the legislative and the “how do they work in practice day to day?”
Andrew Neilson: I agree with most of what Phil has just said. The timely nature of orders is particularly important, as is their being responsive and reparative in some way. I am not so sure about the punitive aspect. At least, I absolutely recognise the symbolic punitive function of the sentence, but, as with anything in the criminal justice system, there is always a tension between what helps someone to rehabilitate and what does not. Punishment usually does not help someone to rehabilitate.
How you get that particular symbolic function to work in a way that is ultimately not unhelpful is key, and I am not entirely sure that has been figured out properly by the Probation Service. One example is the extent to which unpaid work is seen by some perhaps as the punitive element of an order, although it is actually meant to be reparative. Is it really appropriate for a lot of the people before the courts? Is it just being handed out to tick that punitive box, and is that really the right thing?
Ultimately, the Howard League would say that what makes for a good community sentence is human relationships. We would go back to the old probation mantra of “assist, advise, befriend” as speaking to that. There is plenty of academic literature in the field of desistance which shows that key to helping people to turn their lives around and not commit crime is having a good relationship with a probation officer who understands your particular problems and is trying to do something to help you.
The Chair: We will come back to perceptions later.
Gavin Dingwall: We will come back to perceptions and questions of desistance, as you say, so I will not pick up on either point at this stage.
Community orders are particularly useful in that they are probably uniquely able to deal with the five different statutory aims of sentencing. Andrew Neilson is correct that there can be conflicts between those aims, but they do allow for some combination of punishment. There is an expectation, certainly amongst the public, that some form of punishment will follow offending behaviour, and it can be tailored, or should be tailored, to the particular needs of an individual to help with desistance further down the line. I know we will discuss later what that might look like in practice.
The Chair: Let us expand on that with the next question.
Q18 Baroness Prashar: As we are looking at community orders in particular, my question is about who the community sentences actually benefit.
Phil Bowen: They need to benefit offenders, victims and communities. They also benefit the system in managing the amount of flow that comes through the court system. Almost every common-law country has some form of community sentencing arrangement, whether supervised by probation or, as in Scotland, by criminal justice social workers. It is very important for the system to have community sentences that are effective and, picking up on Gavin's point, that they achieve many of the five purposes of sentencing.
They need to be effective for the offenders themselves. We did some work last spring on unpaid work, which Andrew mentioned, and the evidence showed that some offenders find unpaid work punitive and restrictive, and others find it very purposeful; if they are doing the right kind of work in the right kind of timescales, they find it motivating.
They need to be effective for victims. There is some—not enough, in my view—use of restorative justice within the framework of community sentencing, but that seems to me to be a particularly important way in which victims can get a sense that people are paying back for the wrongs committed and trying to come to some kind of reparation
They need to work for communities, and, again, unpaid work in particular is the most visible part of the community sentencing framework. In our report last year, we made recommendations to HMPPS about making unpaid work more community focused and involving church groups and third sector organisations in the delivery, as well as in the picking of projects that are done through unpaid work. There is a range of actors that need to be satisfied about performance in community sentencing.
Finally, the public need to be satisfied that community sentences are effective, and there has been some work on the public’s perceptions of community sentencing. It is a vital part of community sentences that the public feel that they have confidence in them, that they are effective and that they will lead to less crime rather than more crime. There is a range of people who need to be convinced about community sentencing.
Andrew Neilson: That is quite comprehensive. I would add only that sentencers should have a wide range of options before them when it comes to the people who face them in the courts. Community sentences clearly play an important part in providing that range of options, even just in the community sentence, never mind in other potential disposals.
Gavin Dingwall: One problem we have is that it is incredibly difficult, especially when you talk about a group like victims, to find out what they want. There is often an assumption that there is a victim perception of a penalty, so it can be very difficult to tailor a particular sentence. Community orders are no different from any other sentence in this regard. Sometimes unpicking it can be quite difficult. Clearly, victims have to be seen as a vital stakeholder in this.
I also take the point that there needs to be public acceptance. Too often, there is a public perception that anything other than a custodial sentence is not an adequate response to an offence. Often this is borne out of ignorance of different types of sentencing. One of the Sentencing Academy’s purposes is to increase popular knowledge of what different sentences actually entail. There also needs to be credibility among offenders themselves.
Baroness Prashar: What about cost-effectiveness—the impact on prison population, the cost and so on? Have you done any work in that area? Do you have any assumptions?
Phil Bowen: We have certainly done work on short community sentences and looking at alternatives to custody at that point. Interestingly, in the past 10 years, the number of community orders and suspended sentences has gone down by about 56%, but so have short custodial sentences. They have both gone down by similar amounts.
We have been looking for a number of years at the use of what are called problem-solving courts, where people who would otherwise be going to prison are put on community sentences that are regularly reviewed by the same judge. That work has led to some Ministry of Justice pilots, which will start operating in June this year. There will be two or three Crown Court pilots looking at substance misuse, and one pilot at magistrates’ court level looking at keeping women who are facing short sentences out of prison. We have done a lot of work to promote that as an idea to the Ministry of Justice and are now involved in training the teams for those pilots.
Lord Blunkett: Could we have the information on that, please, because it is certainly not on my radar?
Baroness Prashar: Does anybody else wish to say anything on cost-effectiveness?
Gavin Dingwall: We know that custody is staggeringly expensive. We have the data on its effectiveness and ineffectiveness in relation to reoffending rates. I sometimes think that one way of trying to change public attitudes is to make it very clear that we are spending an awful lot of money on something that is just ineffective. Politically, that is a difficult sell, but the case effectively is that it is a waste of money, and one that often can lead to additional harms further down the line. This is not a discussion about the harms of custody, but the two cannot be separated that easily.
Baroness Prashar: You specifically mentioned women and short custodial sentences, which is quite a specific area because it has an impact on children, social services, and all of that. Did you look at that as part of your research?
Phil Bowen: Yes, as part of our work on the idea of problem-solving courts we made the case to the Ministry of Justice back in 2018—it has taken that long to get the pilots up and running—for realising the objectives in the female offender strategy published by the Ministry of Justice in 2018. One of the roles we think that courts and probation could play is in keeping those women out of custody for short sentences.
We have analysed the impact of reducing the number of short sentences and putting people on to alternatives to custody, and the savings are not great; you do not save that many places when you close down whole prison establishments, but it is still a more effective way of dealing with those cases, and you avoid all the collateral consequences of imprisonment.
We also looked at things like presumptions against short sentences, as they do in Scotland, and found that you do not save a lot of prison places in total, because the number of short sentences is down and the main driver of the prison population is longer sentencing for serious offending. That does not mean that you should not do it. It is just a more complicated cost-effectiveness argument.
Baroness Prashar: Can I prod you there a little bit, because one of the assumptions is that if you went down the road of doing more community sentences, it would have an impact on the prison population, because even that is on the increase. Are you suggesting that it will not have such an impact on prison population, or that it will?
Phil Bowen: You need to seriously dent the flow of cases into the system in order to save money. The only way to save money in the prison budget is by increasing the number of community orders and decreasing the number of short sentences. You have to do quite a lot of work to make those kinds of savings.
As I said, the main driver of the prison population, according to the MoJ’s own work on this, is longer sentences for serious and violent offenders. The average custodial sentence has gone up by something like 14 and a half months in 2012 to 21 and a half months in 2022. That is the main driver. It does not mean that we should not try to avoid the use of short custodial sentences because we know they are ineffective. It is just that unfortunately that does not guarantee the savings you want.
Another issue that has been raised with us in our research with magistrates is that they feel they are sometimes left with no choice but to impose short custodial sentences when they have an offender in front of them who has not complied with probation three or four times in the past year or so. They do feel that they are left with no option. That is why things like presumptions against the use of short sentences do not work in practice, because there are not hundreds of cases in which magistrates are left with no alternative. What we are hoping to achieve in the problem-solving court pilots is to persuade magistrates that we can hold people in the community. However, the gains of that are unfortunately not as promising as they initially appear to be.
Andrew Neilson: On the cost-effectiveness point, I think that is right; shifting the balance will not save as much money as you might think. What it certainly would do is reduce the churn of people going through the system, particularly the churn in local overcrowded prisons where, as we know, there are really deep problems. That would certainly ease some of the pressure.
It is noticeable that whenever there is a problem in a particular institution and the inspectorate comes in and says so, a key way in which the Ministry of Justice and the Prison Service usually respond to that is by reducing the prison population in that institution and shifting some of them elsewhere. It might cause some problems elsewhere in the estate, but there is an implicit recognition that the overcrowding, which is endemic in many prisons, is a contributory factor to some of the problems behind bars. Reducing the short prison sentence population would certainly help to ease that pressure but maybe not deliver the big bucks that closing prisons would.
Gavin Dingwall: I will come in on the point that it is not just a question of cost-effectiveness. One problem we have is that we just do not know what proportion of the prison population could have or should have received a community order instead. Is it 2%? Is it 10%? Is it 20%? We almost need a penal audit to take a sample and to see what is going on, because that will give us a sense of just how great this issue is. We know there will be people who should not be in prison. It would be helpful in framing this debate to try to capture just how grave this problem is. To echo my colleagues' comments, the financial argument will probably not be as great as we perceive, but then it becomes very much a question of principle: we are talking about individuals who, quite frankly, should not be in prison.
The Chair: It may be something of a stereotype, but is offenders doing unpaid work for charities and local authorities of any benefit to those bodies, or is it something that some of them feel they have to do?
Phil Bowen: No, I think it is of real benefit. One of the successes, if I can put it that way, that probation achieved during the pandemic was being very creative, such as unpaid work at home that needed to be done for charities, getting masks together for key workers, et cetera. HMPPS has signed a big contract with the Canal & River Trust to do lots of work on its waterways. There is a real benefit to communities and to charities from unpaid work. I would like to see more unpaid work; I think it is a really useful sentence.
There are routes that we should be encouraging the use of unpaid work in—as an alternative, for example, to things like fines where people cannot pay them. We are doing some work on the use of the court fine, and we are finding that in magistrates’ courts—you see it every day—the only response we can make at the moment to people who are homeless or on very limited means who are caught for things like shoplifting is a £200 fine that we know they are not going to pay. The sentencers know they are not going to pay. If we could use unpaid work as an alternative, that would be very useful. Whether probation can deliver more hours, given its existing backlog, is a different matter.
Q19 Lord Sandhurst: Mr Dingwall in particular talked about people who should not be in custody in the first place. Who are these people, and what should we be doing with them instead? Just in a snapshot, because we have to decide how we sort these sheep from the goats.
Gavin Dingwall: Absolutely. We have a statutory test, a threshold test, for a custodial sentence. It sets a high bar and there are certainly appellate cases from the Court of Appeal that have looked at particular sets. When you look at it you think, “How, by any stretch of the imagination, is this an offence that is so serious that neither community sentencing nor a financial sanction can be justified?” We have to look seriously at the custodial threshold. Some commentators, some lawyers, have said that there are issues with it, such as vagueness, but it also has to be seen in the context of the sentencing guidelines, both the generic guidelines—one looks at custodial sentences and community sentences—and the specific guidelines for particular offences.
First, we need to make sure that sentencers are following the test they should be following for imposing custodial sentences, both for children and young people and for adults. For those who do not meet that threshold, you have to look at community orders and use a test to find one that is proportionate to the seriousness of the offence and where the requirements will be most suitable for that individual.
I want to come back to a point Phil mentioned about individuals who are being given fines in courts who are of limited financial means. I have concerns that there can be up-tariffing here: that people who have committed offences that are not serious can land up receiving community orders because of an inability to pay. That is a real challenge. We have to make sure that people do not receive a more serious penalty simply because they do not have the wherewithal to pay a fine. That can be a real issue.
Q20 Baroness Meacher: I have a couple of fairly simple questions that I have been asked to ask you first, but I hope we can go on to what I regard as the absolute essence of this inquiry. How effective are community sentences at reducing recidivism?
Gavin Dingwall: The short answer, if you look at the raw reoffending data, is that they are more effective than custodial sentences. The problem is that you are not necessarily comparing like with like—
Baroness Meacher: Absolutely.
Gavin Dingwall:—the problem being that courts will often be more likely to impose a custodial term if somebody has an entrenched pattern of offending, for example. Research has been done that has tried to match various characteristics. It found that there is still a notable difference in reoffending rates between them. I can dig out that data, as I have it with me, but it is a notable difference, even when those characteristics are taken into account.
Reoffending rates are worse for those who receive a short custodial term, and that is a group we often talk about as having an alternative to community orders, so we are going into a category with a very high reoffending rate. There are various reasons for that, which I can expand on if you want.
Andrew Neilson: We have to emphasise that when we put the emphasis on comparing community sentences to short prison sentences, the cohort we are talking about are people who are often leading very chaotic lives. They have a host of problems. We will probably talk at some point about the Transforming Rehabilitation reforms. One of my bugbears about that and the way it was introduced was that I felt that it often simplified just how difficult the lives of the people we are talking about are.
Although we quite rightly should hold services to account on reoffending rates, we have to accept that there will be failure, and that it will take many attempts sometimes for somebody to make the right turn in their life when they have so many problems. It could be drugs, alcohol, mental health, homelessness, a lack of employment, or all those things. There is no magic bullet solution, and they are not going to turn around overnight. Sometimes, it is about the right moment in their life. Services can do whatever they can, but ultimately that moment of individual possibility and volition is key. We just have to keep that in the back of our minds, because sometimes services get a lot of opprobrium thrown their way, because the stats are the way they are and we sometimes forget the difficult human lives that are there.
Just to take a step back from the question of whether community sentences are effective, there is something of interest in looking at what makes for effective community sentences. Looping back to the first question, one of the really notable things that Justin Russell, the Chief Inspector of Probation, has been saying in his recent reports is, “Where is Probation performing well?” It is performing well in youth justice. Justin Russell has talked about that quite a lot. The Youth Justice Services seem to be doing much better, which just emphasises the importance of manageable caseloads, properly embedded multi-agency working and the range of local services that youth offending services have a connection to. That is not always the case in adult probation, because it seems to be the hallmark of what is making things work there. I know we will probably come back to that topic later.
Phil Bowen: I agree with a lot of that, and as a member of the Youth Justice Board I am always happy to hear that the youth justice system is working very well.
Andrew Neilson: Better.
Phil Bowen: Yes. The only thing I want to add is that the official reoffending rates for community orders are down. They have been coming down for the last 10 years. That tells you more about what those stats record than what performance has been like. I do not think anyone would have come away from Justin Russell’s appearance at the session here last week thinking that Probation is in a good place. None the less, the reoffending rates for community orders are down, which is mostly to do with the fact that our clearance and conviction rates are down, so our policing is down.
It is seductive to think that we can judge performance by reoffending rates, but they tell you a particular thing, which is not necessarily the thing you think they are telling you. That is important to know, and it is particularly important with the binary “Did Phil re-offend a year later or not?” Things like the reduction in the volume of offending that he may have committed is possibly a better measure, because it at least shows progress toward, but basically it is a plea that reoffending rates do not tell you everything you would like to know.
A general point which Gavin and Andrew have both spoken to is that, as far as we can tell from relatively sophisticated research looking at community sentences as alternatives to short prison sentences, they do seem to be more effective.
I do not want to keep mentioning this, but I note again that two of the new problem-solving court pilots will be at Crown Court, so they will offer community-based alternatives for up to two years of prison, which is a much longer period than alternatives to custody traditionally last for. I am hopeful that this will reduce some relatively long periods of custody where people would otherwise be going to prison.
Q21 Baroness Meacher: We tend to refer to community sentences as though they were some kind of blanket. We are hoping to come out with a report that will make very clear to government what community sentences should look like, in order for government to feel comfortable about pretty much wholly replacing short-term prison sentences with community sentences.
On that point, we know that the great majority of people who repeatedly offend have addictions of some sort—drug addiction, alcohol addiction, gambling addiction—and I was very pleased to hear Gavin Dingwall say that sentences should be tailored to the needs of the individual. There are three of the 16 possibilities under community sentences: mental health treatment, drug rehabilitation, and alcohol treatment. Would you agree that where somebody who has one of these addictions or mental health problems comes before a sentencer, the key is that the sentence really does address the underlying issue that is generating all that crime?
I presume you do, and I would like to tell you a little story. A Member of this House found a chap downstairs burgling her. He was going to go into custody.Restorative justice, she says, “if you will go for drug treatment”—clearly he was a drug addict—“I will not pursue my complaint”. That fellow went for drug treatment.
What I am getting at is that if community sentences focus very closely on the treatment of all these addictions and problems—maybe ADHD is another one—that would have a radical impact on reoffending in a way that a lot of community sentences at the moment do not. Unpaid work is irrelevant to these people; they will just go on committing crimes. Would you agree that the focus needs to be on treating the underlying cause of criminality?
Andrew Neilson: Absolutely. I take Phil's point earlier that, for some people, unpaid work does have a positive impact, but I worry sometimes about just how much airtime unpaid work gets as a requirement over others. Every time the Government issue a press release about community sentences, they put up pictures of people in orange tabards in a ditch somewhere. I can understand that; it is the most visible part of the delivery of a community sentence in the sense that it is something the public can imagine in the same way they can imagine prisons, bars and gates and that experience. If you are trying to posit community sentencing as a genuinely robust alternative, you will use that imagery, but it means that we lose a bit of focus at the very top level on the most effective requirements of community orders that tackle the underlying causes in a more direct way, in the way you are saying.
Phil Bowen: I agree that we should expand the use of the treatment requirements that we currently have. For a brief period, when I was a civil servant in government in the mid-2000s, I was responsible for putting money into what was then called the pooled treatment budget, which was part of a mechanism that allowed us to vastly expand the number of drug rehabilitation requirements. The use of drug rehabilitation requirements has collapsed over the past 10 years, so I am a big advocate for expanded treatment requirements. I know the Government are putting money into that. The community sentence treatment requirement pilots that are being rolled out nationally are part of that, but that is a response to their deterioration, so we are possibly getting back to where we used to be 10 years ago. So treatment is important.
It is worth saying that whether treatment requirements will have a radical impact on recidivism is a different matter. Part of the dismal science of criminology suggests that if we can make the right interventions at the right time with the right people, we might be able to reduce those reoffending rates a bit. We are talking a few percentage points. If you reduce reoffending by 10 to 20 percentage points, you have done extraordinarily well. This picks up on Andrew's point that some people are not at the point where they are ready to change. That is just a reality. Unfortunately, lots of the research on people's criminal careers is that desistance theory suggests some people are not ready at the time we want them to be ready to change. So, as a note of caution, although those are the right things to do, radical changes in people's lives and radical reductions in reoffending are unlikely, because change is hard.
Baroness Meacher: Yes, change is certainly hard.
Q22 Lord Sandhurst: The year ending September 2012 saw 158,000-odd community sentences served. Ten years later, the year ending September 2022, saw 69,000-odd community sentences served, a dramatic drop. Why?
Phil Bowen: It is a good question. It is something that we at the Centre for Justice Innovation have tried to do work on, because at the same time as there has been a huge reduction in the number of community orders, there has also been a huge reduction in the number of custodial sentences. In particular, there has been a huge reduction in the amount of short custodial sentences. We have seen a general trend of those types of sentences going down over the past 10 years.
When we did some research, in 2018, I believe, looking at the relationship, for example, between Probation, the courts and sentencers, we detected that there had been a deterioration in the relationship between sentencers and Probation. That was part of it, but it certainly did not explain the whole trend. At the same time, we have seen a rise in the use of fines, so we postulated that at the bottom end of the community sentencing caseload there may well be fines eating into it. Generally, however, we have just seen fewer cases coming to court, fewer convictions, so fewer sentences more generally.
The deterioration in probation performance explains part of that drop, but does not explain it fully. I would love to say that we have got to the bottom of whether there has been a change in the types of offences that are coming in front of the courts that are powering those changes, but the simple answer, unfortunately, is that I do not know.
Lord Sandhurst: What might be done to restore confidence in community sentences and the Probation Service, then?
Phil Bowen: Amongst sentencers?
Lord Sandhurst: Yes.
Phil Bowen: I know Justin Russell spoke about this a lot with your committee last week, and it has been recognised as an issue. There is a national forum in which sentencers and Probation meet regularly. The reintroduction of liaison committees is also a helpful step. The Probation Service reduced the number of written pre-sentence reports to a really low level, and I think it has realised that is a mistake and is trying to ramp that up, but I also know that sentencers’ perceptions of probation court teams are generally quite positive.
One of the things that we hope to achieve in things like the problem-solving courts is that, by regularly reviewing the same people over time and the same judge reviewing those cases, they will get much more of a feedback loop on the dynamic nature of offender supervision. Obviously, you cannot do that in all cases, but those are some of the steps that we can take to restore confidence. However, I would not want to overstate how dramatic that drop in sentencer confidence has been.
Andrew Neilson: Improving information exchange with sentencers and Probation and improving the quality of pre-sentence reporting is a kind of low-hanging fruit way of addressing this. At the Howard League, we would argue that there has been an unhelpful decentring of Probation as a service, so the primacy that prison has had as a response to crime from successive Governments has been unhelpful. Probation literally became part of the Prison Service and has suffered for that merger and lost its identity and a lot of its confidence.
Then we had the Transforming Rehabilitation privatisation, which did not create these problems but certainly exacerbated some of the existing trends in the loss of confidence, Probation itself losing confidence and the break-up of information exchange. None of that was helped by TR. It is no surprise that courts lost confidence in court orders when it turned out that probation officers under the CRCs—the community rehabilitation companies—were supervising people by telephone and they were not even confident that the person at the other end of the telephone line was the person they were meant to be supervising, so some damage has been done over the last few years.
Gavin Dingwall: I have nothing to add. You have had two comprehensive answers there.
Q23 Lord Blunkett: I would like to take us back to the victims and, as a consequence of that, the wider public and their view of the situation. I am very pleased that we have had mentions of problem-solving courts and restorative justice. I know that some members wanted to keep this very narrow, but I can see now that these things will have an impact and perhaps we could explore them a bit further.
If a victim, or their family, sees that what someone is being sentenced to is what they themselves volunteer to do at the weekend, what impact do you think that might have?
Phil Bowen: There is a difference between what you have volunteered to do and what you are ordered to do every day for the next 300 hours of unpaid work, so I do think it is a proportionate response to certain types of crime. I recognise that some victims will feel that offenders should be doing more unpalatable work, but we also need to recognise that the population of people doing unpaid work have different skills, different vulnerabilities, et cetera. For women on unpaid work, for example, doing work at home has actually been very useful, not just during the pandemic but more generally if they have caring responsibilities. I recognise the point, but it is worth saying that some of the unpaid work is cleaning up graffiti or cleaning up disused bits of public spaces, so there are different attitudes.
In some of our work looking at unpaid work, some of the community representatives who liaise regularly with Probation are delighted that there are car washing schemes where people can get their car cleaned by people who are doing unpaid work. It feels like a valuable way for people to be putting a bit back into their communities. So although I recognise that some people will feel, “Well, that’s what I do at the weekend when I volunteer,” they are not being asked to do the number of hours and not penalised if they do not do it.
Lord Blunkett: I am deliberately being perverse.
Phil Bowen: I know you are.
Lord Blunkett: We need to get to the hard core of some of this and not just narrow it right down to a particular type of community order. I take it that those on minimum wage in carwash programmes would take real offence at the example. Forgive me, I do not want to put words into your mouth and I might have misunderstood, but I am sure you mentioned restorative justice half an hour ago. How do you see that working in these circumstances, as opposed to people litter picking?
Phil Bowen: Restorative justice is an option that can be used in rehabilitative activity requirements. Obviously it depends on victims wanting to engage, so it will necessarily be only a limited option, but none the less it is used.
What has not happened, which I would like to see more of, is the use of restorative justice as an alternative pre-sentence. If people are willing to meet with the victim and agree a contract of work or give apologies, et cetera, is that a way for courts to decrease the use of things like fines and custody? I do not think we do that enough. There are models in New Zealand and Australia where RJ is used as a deferred sentencing option, and I would encourage us to use it too, but I know from the sentencing stats our use of deferred sentences has dropped from not very many to almost none over the past 10 years.
Q24 Lord Blunkett: Perhaps the other two witnesses would like to comment on this, including on what we think the disposals will be from problem-solving courts.
Phil Bowen: In the context of substance misuse, it will be relatively intensive combinations of things, such as: the Drug rehabilitation requirements (DRR); unpaid work, if that is appropriate—often it is not; bits of electronic monitoring and curfews, which can be useful in keeping people away from areas that they find risky; and supervision and rehabilitative activity requirements. That is what is being proposed.
Lord Blunkett: Would that have an impact on the view that victims and families in the wider community have about these kinds of disposals?
Phil Bowen: I certainly believe that problem-solving courts hold a key to convincing sentencers that community sentences are robust, and it is a way of showing the public that these people are being held to account on a regular basis by a court. We also know, from the work we do in the family system around family drug and alcohol courts that people in those courts find it very motivating to be working with someone in a position of authority who is sometimes admonishing them but generally encouraging them to comply. That relationship between the judge and the offender in problem-solving courts has been shown by evidence from the United States and elsewhere to be a really powerful motivator.
Lord Blunkett: In other words, actually changing the attitude and therefore the behaviour, as opposed to just putting them through a programme.
Phil Bowen: Yes. It speaks to Andrew's point, which is that the big thing that drives desistance is relational. A relationship with a mentor, a judge, your probation officer, your unpaid work supervisor can make a big difference to how people perceive themselves and can help them on their rehabilitation.
Lord Blunkett: We as a committee have to ask you questions that get you to put on record things that we might want to hear in order to help. It is a bit of a perverse system.
Gavin Dingwall: I would like to pick up on Baroness Meacher’s point about alcohol and drugs, because the link between intoxication, alcoholism and drugs is vital if you want to understand offending. In a piece of research we did a few years ago we looked at violent offending by 16 year-old girls. Their knowledge of alcohol was frightening. One of our sample drank half a bottle of vodka every night. When my colleague asked her, “Do you think this is normal?”, her response was, “It’s normal for me”.
In a situation where that is the kind of knowledge people have, we desperately need serious intervention, and it is very useful at the stage where people are hopefully willing to listen. These were a cross-section of young women who had committed serious acts of violence, usually. Targeting those who have addictions is important. A lot of the people we are talking about are also committing thefts. We will talk later about persistent offending, and we know there is a link between offence type. So, to echo your point, Lord Blunkett, problem-solving courts offer a real way forward for distinct categories of offenders. Those with addictions would be very high on my list.
Q25 Baroness Sanderson of Welton: We talk a lot about views of the public and victims; we do not always talk about the views of the offenders towards community sentences. Mr Dingwall, I was struck when you said that community sentences need to have credibility among the offenders as well. Could you perhaps tell us what the offenders’ views and attitudes are towards community sentences?
We have also talked a bit about women, so it would be quite interesting to discuss the attitudes of female and male offenders, because the implications for female offenders going on short-term prison sentences are obviously much greater.
Gavin Dingwall: Generally, we know that offenders if they understand the process and feel that it was carried out fairlywill have a greater sense of justice in the system. It is vital that the reasons are made absolutely clear. Of course it is our duty to explain, but most offenders would realise that a community sentence was imposed not just as a punishment but, hopefully, to tackle the roots of offending.
There is surprisingly little research about this, which is slightly concerning. It is worth saying that as community sentences now contain a punitive requirement, there will be more of a sense that offenders see community sentences as more of a punishment. In fact, we have some research to show this. This varies for the ramifications of a breach, which also become more serious.
Phil Bowen: Offenders experience community sentences very differently. Electronic monitoring, for example, sounds punitive and restrictive, and obviously some people perceive and experience that way. But I have met people on electronic monitoring who say, “This is great. This provides me with a good excuse to say to my mates that I’m not coming out tonight. It provides me with a way of identifying how to control myself”.
That is not everyone’s experience. The evidence on something like electronic monitoring shows that young adults in particular struggle with things like curfews, especially if they are living in shared housing or with their parents. They do not necessarily want to be stuck in and have a curfew. When you look at the research literature on offenders’ experiences of community sentences, you find that they experience things differently. For some people, drug treatment, which sounds rehabilitative, is the hardest thing they have done in their lives. It feels like a punishment. You get this very different sense of the restrictions.
I was also struck while doing the research on offenders’ experiences of community sentences by the additional problems of the system, such as the restriction on the ability to travel abroad, which is not necessarily at the forefront of their mind when they are given a community sentence, or the impact of a criminal record on their employment later on. Those things are seen as additional pains that are not presented the first time they are given a community sentence. It is worth being aware that people experience things very differently depending on their circumstances.
Andrew Neilson: Over a decade ago now, but interestingly before the punitive requirement was legislated for in community orders, the Howard League did some research, in conjunction with the Prison Governors Association, on people serving short prison sentences. We asked them about their experience of the short prison sentence and, conversely, of community orders, because they were people who had experienced both.
Interestingly, we found that quite a lot of the respondents in that research said that community sentences were harder to complete than a short prison sentence due to the need to attend appointments and the length of time over which community sentences could take place. I come back to Phil's point right at the beginning about timely completion of community orders being important in effectiveness, but from the point of view of the service user, it is really unhelpful if it drags on and hangs over your life. That should not be seen as a punishment; it should just be seen as bad service delivery.
Some of the people in that research highlighted that it was hard to comply with community sentences, because they had to manage their day-to-day lives because of the factors that were leading them to offend, such as drug use, at the same time as meeting all these requirements. This was not required when they just had to lie on a prison bunk and do nothing for a certain period of weeks or months. In researching for this session I pulled a quote from somebody describing a community sentence, who basically said, it “put them out more”. They described it as being more challenging.
In the end, that meant that there were people expressing a preference for a short prison sentence over a community sentence, because they would go in, spend a few weeks lying on a prison bunk, come out not challenged in any way and resume the activities they had been before the courts for in the first place. I suspect you will still hear that view if we conducted that research again, which we might.
Gavin Dingwall: We keep getting this rhetoric about making community sentences tougher and more punitive. We have a statutory requirement. This, again, risks causing some kind of conflict between something designed to punish and something designed to assist the offender. That runs throughout this, and the harder and the tougher that we make it as a sentence, the more we land up in this conflict.
Baroness Sanderson of Welton: We have been given a couple of examples of unpaid work, and I declare an interest here. I am running a review of public libraries, which need volunteers. Public libraries are not a part of the system, but they could be. Is there an attempt to find roles that are not just, “You have to do this”, as a punitive element, but, “This could lead to a better future for you that you may find rewarding and which could help you in the future”? I am thinking of libraries in particular because of the connection with prison libraries. There are people who continue what they have learned there back into normal life.
Andrew Neilson: Phil will be able to speak a bit more about current experience than I can, but it is worth saying that, over the last 10 years, the context was that too much unpaid work was being delivered simply on the exigencies of what work could be found. That was partly to do with the failings in the structures.
When unpaid work was privatised, which was even before the Transforming Rehabilitation reforms, it was often difficult to secure. In the London area, for example, it was difficult to secure partly because the companies involved did not necessarily have the local connections that probation trusts used to have; I might come back to the structure of probation later. The reforms did not help with that, but now that we have Probation back in the public sector with the National Probation Service, we potentially have an opportunity to think about the ways in which unpaid work can be delivered in a more constructive way.
Phil Bowen: In our review of unpaid work, we found that, in theory, a good unpaid work system should have a diversity of placements. We know, for example, that the unpaid work population is older than it was 10 years ago, so less able to do some of the hard work outside. But also, if we want to use it as an opportunity to teach people employment skills and training readiness skills, we need a diversity of placement.
Part of the problem at the moment, understandably, is that HMPPS is working through this big backlog, so it is signing big contracts to just get people out there and do the work. That might be right, but once we get to a stabilised position, we need a diversity of placements that reflects the diversity of people who get unpaid work. The sorts of people we get can range from the middle-class driver caught for speeding through to people with complex vulnerabilities. We need different places for different people.
Baroness Sanderson of Welton: That could be developed a bit more in the future.
Lord Beith: On the point about the offenders who prefer prison as a sentence to unpaid work, do you recognise that there are serial offenders who see periods in prison as an automatic part of their lives, indeed, at times, like Christmas? I have come across people who had committed offences in order to go back into prison where they will get fed and have access to services like the doctor and the dentist, which they cannot get access to outside. It is just one of the features of a serial offending life, but we still have to deal with those people because they are committing offences that are harming the rest of the community. Do you recognise that picture?
Phil Bowen: Yes, I recognise it.
Gavin Dingwall: Tragically, yes.
Q26 Baroness Chakrabarti: I am vexed about the appropriate relationship between problem solving for an individual offender and purpose specificity with all their complex problems on the one hand and what might broadly be seen as fairness across all offenders on the other hand. The £1,000 fine means something to a person with X means but nothing at all to someone else, yet we have finite limits on fines and so on. I am using that as an analogy, because it came up in Lord Blunkett’s question. How do you square that circle when you think about proportionality in problem solving, sentences and making community orders work for the individual but also for the system?
Phil Bowen: This is one area in which community sentences are uniquely flexible compared to fines or custody. They are not just uniquely flexible in terms of the legislative framework with its 16 requirements but, in theory, in the context of something like the rehabilitative activity requirement, the RAR. That should give probation the flexibility to pick and choose different things and use HMPPS’s toolkits.
I would like to see community sentences being used more, because they are a more flexible thing and can respond differently. There may well be circumstances in which some people on community sentences really do not need the sort of treatment Baroness Meacher referred to; they just need to go on unpaid work and be restricted, because that is all we need to do with them. Yet there are other people who need a lot of help for the same offences.
Part of the challenge is choosing what we enforce and breach people for and what we refer people to. If someone has a housing problem, are we mandating that they have an appointment with Housing, or are we simply offering them an opportunity to engage with Housing? We need that sort of flexibility. Good probation should be able to do that, but at the moment it has suffered from lack of staff. The caseloads are too high, so in too many cases it just stops that happening.
Andrew Neilson: Phil mentioned the use of restorative justice as a deferred option before sentencing. I appreciate that this inquiry is about community sentencing, but what can be done to better divert people from court is also really important, because it is not just the prison system that is overcrowded but the probation system. That is one reason why caseloads are as high as they are and the system is struggling.
The balance is not right at the moment. In the end, there needs to be a review of where cases are sitting and how a better balance can be struck so that cases are removed from the probation caseload by being dealt with better through the deferred before-court approach. That would allow the Probation Service to balance cases and provide the kind of personalised assessment and response that people really need.
Gavin Dingwall: Let me add one thing about diversion. We have to be slightly careful, because the nature of out of court disposals has changed greatly. In my view, the police now have far too much power. The Magistrates Association published a really important report in December, which unfortunately went under the radar because it was published just before Christmas, but it is a really important piece of research.
Baroness Chakrabarti: Was it about conditional cautions and things like that?
Gavin Dingwall: Yes. Imposing conditions on people is effectively giving the police powers that magistrates' courts often do not have. There are also major issues about oversight transparency here.
Coming back to your fundamental question about how we reconcile the two, I think that the way the statute outlines this is correct. I am a great believer that proportionality is critical in sentencing. I think we over-punish, but the first decision has to look at the seriousness of the offence. We take mitigation into account, which can be significant personal mitigation, which can seriously take it down levels. In some circumstances, a mitigation will be so powerful that we might be imposing a very minimal penalty, if any. That is our starting point. Community sentences probably allow as much tailoring as any other type of sentence to take into account the personal factors that we have spent the last hour talking about. We cannot necessarily reconcile it, unfortunately.
We also have to see this in connection with other types of sentence. We have a massive problem with fines, which are by far the most common penalty imposed. So any discussion has to recognise the difficulties not just with community orders but with financial penalties and even custody. A custodial sentence is experienced very differently by individuals. We have talked about some people who see it as an occupational hazard and, in some cases, preferable to a life on the streets. Then there are people who go inside for the first time who are utterly terrified and will experience violence, bullying, whatever else. Unfortunately, the subjective experience of a sentence will vary. All we can be is absolutely mindful of that.
The Chair: How a sentence is experienced is not just a snapshot at the beginning of a sentence. To pick up the relational point, would any of you like to say a sentence about the role of the probation officer in assisting an offender to see the sentence differently?
Phil Bowen: This is something that Justin Russell picked up on yesterday. The role of the probation officer is extraordinarily complex. We are asking them to enforce an order as well as promote healthy relationships and form a trusting relationship with that person. It is part of the reason why my organisation has called for the professionalisation of the Probation Service. I am not saying that is the key to it, but it is a part of it. It is a very serious job that has to hold lots of competing things together. We should professionalise the service, because although it is an incredibly difficult role, I have seen it work.
You look at the desistance literature and see people who have changed their lives around saying, “I wish I’d listened to my probation officer 10 years ago when he told me X, Y, and Z. That’s lodged in my brain and been the thing that helped to change my behaviour over time”.
Q27 Lord McInnes of Kilwinning: Good morning, and thank you for coming before us today. My question about the components between rehabilitation and punishment has pretty much been answered. For me, the big learning point from the session so far has been the issue of cost saving from non-custodial sentences, or the lack thereof in a short-term gain that many people who are in favour of more community sentencing would automatically fix on: “Well, it must be cheaper, so great. Everyone’s a winner”.
If that is not the case, is there a strong connection between custodial sentence and reoffending in the long term? Have there been any studies to demonstrate that, over five to 10 years, because you are reducing the number of people who may be reoffending, you reduce the need for the longer sentences that are increasing and open up a gap between offences that can be dealt with in community sentencing as opposed to custodial sentencing? Is that a fair hypothesis?
Secondly, has there been any international study on the difference and whether far more community sentencing helps to depopulate the prison population in the long term?
Phil Bowen: I think I am right in saying that international studies tend to show that countries with a smaller prison population also have a smaller probation population. It is about the size of the whole pie, if that makes sense. My organisation is linked to an organisation in New York City that has seen a dramatic drop in crime and, consequently, a dramatic drop in incarceration. That organisation would say that over 30 years of consistently introducing new community options has helped to build the case with the public for some sentencing reform and led to part of the reduction in the use of jail. They would also say, however, the reduction in the remand population has also contributed to that. I am not aware, but colleagues may be, of a country that has radically increased the amount of community sentences and therefore seen a drop over a term. It may have happened, but I am not aware of it.
Andrew Neilson: I am not aware of one either. To echo Phil's point about the overall size of the system, in countries with lower prison populations or stories of decarceration—I immediately think of Scandinavian countries like Norway or Finland—probation has been a part of the system. But it has been about keeping criminal justice contact with the system minimal across the board rather than probation taking the weight away from prisons.
In Norway, for example, there is community sentencing. I cannot talk about what is going on now, because although I have been to Norway twice in the last 15 years on Howard League business I have not been in the past five years, but certainly on the two occasions I went there I found that it did not have a sophisticated range of options for people who had community sentences, which in itself is interesting. Some might argue that if you have a plethora of different community sentences that are not properly resourced, all you are doing is just widening the net of people who will end up in the criminal justice system and setting them up to fail.
The Chair: Mr Dingwall, you can say, “I agree”.
Gavin Dingwall: I will give a three-sentence response. Your hypothesis is entirely plausible, but I cannot cite any evidence towards it. We also have to remember the intergenerational effects of incarceration. One statistic that I always find frightening is that if boys have a parent in prison, the percentage who go on to get incarcerated later in life is absolutely terrible.
Lord McInnes of Kilwinning: I imagine that we do not have any similar evidence on community sentencing intergenerationally.
Gavin Dingwall: I imagine the link would be far weaker. There is a wonderful charity organisation called Children Heard and Seen, which works with children of incarcerated parents. The stories of children who are ostracised by their friends are horrific.
Q28 Baroness Henig: You touched earlier on the youth offending services and the fact we were told in no uncertain terms last week that youth offending services were working quite effectively, while the Probation Service clearly was not working effectively. One of the proposals Justin Russell put forward last week was that rather than having a steep handover at 18 where young people are immediately transferred to the Probation Service, the Youth Offending Team should be allowed to continue supervising young people up to the age of 25. I wondered what you thought about that suggestion.
Andrew Neilson: There has been quite a lot of debate in our sector about this over the years, because there has been a lot of work on maturity and understanding that the age range of 18 to 25 needs a much better approach than it is currently getting, even to the point that prisons still consider young adults to be 18 to 21. They are still not reflecting the neurological research, the groundswell of evidence, that maturation takes a lot longer.
My worry about the proposal is that it could dilute what Youth Offending Services are successfully providing to under-18s. If it were done simply by adding all these extra people in and seeing what happened, it would need to be properly resourced. The Howard League has previously talked about making recommendations for a separate, but very similar, service for 18 to 25 year-olds, rather than expanding the Youth Offending Service in that way, but there is definitely lots to the Youth Offending Service model that should be applied to that age range. It is just how you do it practically.
Phil Bowen: I should make the committee aware I am a member of the Youth Justice Board. I am not giving the official line as to what we think about the proposal.
In theory, I agree with Andrew. It is a creative proposal. There is certainly a need to consider the supervision of young adults—18 to 21-year olds or 18 to 25-year olds, wherever you draw the line—by youth justice services for those who are on out of court disposals, partly to take away some of the issues that Gavin raised about out of court disposals.
I am attracted to the proposal, but I would be concerned that youth justice services would need to differentiate how they supervise and treat 14 year-olds compared to 21 year-olds. There would be different characters, and you would not want to mix those populations in particular ways. It would require a sophisticated approach, but there are some attractions to it. It needs to be thought through, and maybe taken in bites where you extend the age in which youth justice services supervise out of court disposals, and then you take lumps out of that population over time. I would not argue for doing it all in one big bang.
Gavin Dingwall: Youth justice is not my specialism, so you will be very pleased if I just say that you can move on at this point.
Baroness Henig: At this point, can I go a little off-piste? I have been very struck this morning by the very thoughtful and considered views you have put forward. I have found them really impressive. However, I would contrast this, having had a lot of experience of being in court. There are pressures of being in court and pressures with police officers telling you what they think and what should happen, so getting your thoughtful ways of doing things into a court situation is actually quite difficult. Can I have your comments on that? In a court situation, a lot of the things that you say should ideally be happening are not. There is too much pressure—there are time pressures and people pressures. How can we affect what happens in court?
Gavin Dingwall: That is a fabulous question. A point I always made to my own students was that I have never sentenced anybody in my life, and it is comparatively easy for me to sit here today and comment on what other people do. What I can do, and what the committee can do, is provide as robust an evidence base as we can. The organisation I am here representing today is not an advocacy group. We are not a lobbying group. Our function is simply to provide the evidence base; we are researchers from a variety of backgrounds.
This kind of forum is very useful, because it lets us reflect on these questions, which are vital questions of policy. We need to have these debates to filter through potentially into both legal and policy reform. You are right that one of the frightening things when you go into a court is just how quickly things move. The other thing I often tell people when I am speaking to different audiences is to bear in mind that over a million people are sentenced in criminal courts every year. We must have a system that we can not only defend as a matter of principle but that can operate with those kinds of numbers. Most of these people are fined, so we perhaps do not land up with the conceptual issues that we have been wrestling with.
Phil Bowen: There has been a lack of co-ordination at a national level about what we have been trying to do in the courts and what we have been doing with probation. The classic example is the pre-sentence report. The court service wanted to speed cases through the system, and Probation’s response to that was that it would not do as many three-week adjournments. Adjournments were persona non grata, so that has led to some people getting inappropriate sentences and, quite possibly, to the misuse of resources. The committee could point out that lack of co-ordination: that if you want to have effective community sentences, it is not just a question of probation performance, but of what we want our courts to do. There has been a lack of a common vision of what the justice system should be. It has been that HMCTS reform is one thing, HMPPS reform is another thing, and never the twain shall meet.
Andrew Neilson: It goes beyond the remit of your inquiry, but the other point to make is that, let us face it, the country has taken a direction on law and order issues over decades with successive Governments that has ducked questions about what the proper volume for the system should be when you have finite resources and how you bring those two things together.
Your question was about courts. We have been talking about probation and we could be talking about prisons. It is throughout the system, which points perhaps to the need for something really quite fundamental that can somehow command cross-party support, like a royal commission to look at the trajectory that we have gone on as a country over a very long period. Clearly, that has partly been to respond to a sense of public opinion and what the public want, and we have had questions that have touched on that. That has to be taken into account, because it cannot simply be ignored.
There was some very interesting research published by More in Common not that long ago on crime and antisocial behaviour. Given the size of the criminal justice system now and how relatively punitive it is compared to where it was in the 1980s, it is pretty depressing reading. Public opinion is that the system is not tough enough, that it is not working. The policy direction I am describing has not delivered any increased confidence in the system from the public.
However, there were some glimmers of hope for someone like me who works at the Howard League for Penal Reform. Although community sentencing was not specifically mentioned, there was real recognition and support in that polling from members of the public of the fact that the criminal justice system was inappropriately, in their view, dealing with people with mental health problems or people with homelessness. There is an understanding that we have it wrong. It is just how we find a way of turning that ship around.
The Chair: Thank you. That is a political question that some of us have to deal with every day.
Q29 Lord Beith: Another point that the Chief Inspector of Probation made to us when he came before us last week was that there is what he called a gap in the market when it comes to low-level prolific offenders. If the court makes a community order, it has to be dealing with an offence that is serious enough to warrant the making of such an order. Low-level prolific offences, which cause a great deal of trouble to the community, do not necessarily generate the level of supervision which a more serious offence would do. Can we fill this gap in some way?
Phil Bowen: If I understand the cohort that Justin Russell was trying to describe properly, I think he was describing a group of people who committed quality-of-life crimes like begging on the streets or graffiti, who have deeply entrenched social issues. I think that is what he was describing.
Lord Beith: Who are persistent in their offending.
Phil Bowen: Who are persistent, but, although it is affecting the community’s quality of life, they are not in and of themselves actively harmfully and violently offending.
The greater use of appropriate and well-supervised out of court disposals is an option in that area. As part of our work, we run a service in Highbury Corner Magistrates’ Court that provides a Citizens Advice type service for people who use that court. Most people who use it are in the group who are constantly getting fines but cannot pay them, so the service tries to provide advice, support and referral into services like housing, employment, et cetera, so that people who are not meeting the threshold for probation but are coming back to the court time and again at least get a referral route out. The emerging evidence of that model, again, is that it works for some people some of the time.
As I said, there is also a world in which we need to make sure that we can use more deferred sentencing options if the treatment is available for those people, but that is a big if. Those who have read the Carol Black review know that treatment services have been reduced over time. Luckily, more money is going back into those services, but we have lost what we gained 10 or 15 years ago.
Lord Beith: In your view, community orders would not be the answer?
Phil Bowen: My worry is up-tariffing people into more supervision. At the margins it could be, but I would worry about doing too much that means that, as one of the witnesses has already said, we are putting people into situations where they have multiple appointments that they need to keep which they fail to do so, and we have to breach them. I wonder if that group could be dealt with in a different way.
Andrew Neilson: There is a gap in the market, but it does not lie within the criminal justice system, ideally.
Gavin Dingwall: I will just make two points. The first is that a legal decision has already been made that repetition aggravates an offence, which is an important policy decision that has been taken. The fact that somebody has repeatedly offended makes an offence more serious. I do not think that should be a given, by any stretch of the imagination, because that carries the very real significance that offences that would be treated as comparatively minor and might result in a fine, for example, can be treated quite legitimately as a more serious offence.
The other thing that really struck me when I was looking at the success of sentences in relation to desistance was that we have a real issue just with theft as an offence. This is worth looking at in relation to the index offence and the rate at which people are more likely to re-offend afterwards within a short time space. For adults, there is a 47.8% reconviction rate, and 25% of the proven reoffence is theft, so we are often dealing with people who are going before courts time and time again for thefts. This feeds into what we were discussing earlier. A lot of these people are stealing for addiction or poverty and the kinds of issues that perhaps a problem-oriented court might actually focus on.
We have to accept they will always be one of the most difficult categories of offender to deal with. Unfortunately, these people appear before the courts every day, and they are not a small group of people. There is a real danger of up-tariffing. In my view, somebody who is shoplifting and continually stealing £20 worth of goods has a problem but is a minor offender. That is how I would like that person to be viewed. We have to be careful, because this is one of those situations where the discrepancy between punishing someone and helping someone is acute. If we are trying to come up with a proportionate punishment, that person should not be getting a community sentence. If we are trying to help somebody, the Probation Service could do something quite meaningful with that person.
Lord Beith: At the moment, they will not get that assistance, because they are not on an order that would have caused it to be given.
Gavin Dingwall: We are also talking about people who often have specialist drugs or alcohol needs, which, again could be very difficult. Going back to an earlier question, it is genuinely difficult to work out which area should take priority. My concern is that in this scenario we are almost being forced to prioritise the punitive element.
Baroness Meacher: Do you agree that a major focus needs to be on the use of restorative justice and the relationship with the probation officer to try to get a lot of those, as you say, large numbers of criminals into treatment even though they might be a bit resistant to that? It might not be the ideal moment for them, but does that need a lot of focus, perhaps?
Gavin Dingwall: Yes, if you want a very short answer. You clearly have to dig behind these offences. I think it was Phil who made the point near the start that one of the key things that desistance research shows us is that you have to capture the moment. Somebody has to be in the space where they want the assistance.
Baroness Meacher: Or help to get there.
Gavin Dingwall: Yes, that is also a fair point. Make them aware of the facilities. My research on alcohol showed that a few of these young ladies had sought assistance; they had gone to a GP and had not been offered anything.
Q30 Baroness Chakrabarti: You have all given such compelling evidence. This is the wrap-up question. Is there a single most important change that you would like to suggest in relation to the delivery of community sentences by the Probation Service?
Phil Bowen: It is a simple but difficult answer. My view is that we need to professionalise and localise the Probation Service, fundamentally taking a leaf out of the Youth Justice Service’s book, because the key driver of good performance on community sentences is the relational issues. The culture of probation has been pulled in so many different ways over the past few years and we need to get the culture right. The evidence shows that the culture needs to maximise strength-based approaches to promote good relationships. We need to ground the Probation Service’s organisational locus in its communities and its relationships with housing, employment and policing. Over the past few years, we have seen the slow centralisation of the Probation Service. I would say localise and professionalise, which is a more general point about probation that is not limited to community sentencing.
Andrew Neilson: That would be my point too. Unfortunately, probation services have suffered from many reforms and restructurings over the years, but the structure is not right even now. If you are going to localise and professionalise, you need to look again at the structure. I would take probation back out of HMPPS to give it back its independence and its identity. To localise it, you need to look at structure, because the National Probation Service is structured around 12 probation areas across England and Wales. There used to be 35 probation trusts, each with its own chief probation officer. That was a much better structure for delivering the sort of localised services that Phil is talking about. The Howard League for Penal Reform would certainly advocate for that and, potentially, for a small national agency that could provide strategic leadership and promote best practice to be the professionalising body that Phil was talking about.
Karyn McCluskey of Community Justice Scotland does not run criminal justice social work in Scotland, but she certainly helps to provide some leadership for probation out to other public services and, potentially, even to the public more generally. That is lacking. There is no public face of probation in England and Wales, someone who can provide the leadership and visibility that would also help with issues of public and sentencer confidence. We can provide written evidence on what we think the structural changes could be.
Baroness Chakrabarti: I forgot to declare an interest as a supporter of the Howard League for Penal Reform.
Lord Sandhurst: I am too, but I was not certain whether I had said.
Gavin Dingwall: Actually, I should make the declaration as well. I am a member of a research advisory group.
As community sentences have become more punitive, one issue is that the role of a probation officer has changed and their supervisory role has increased. In some ways, that complicates the relationship between a probation officer and their client. People join the Probation Service because they value the ethos of the service, and the nature of the job has changed, which must be galling if you are working with offenders and you have a sort of split duty. It ties back to this idea about having a punishment that is also designed specifically with rehabilitation. It is the nature of the role that is important here too.
The Chair: Thank you. Is there anything we have missed that you would like to mention? Obviously, there will be the opportunity to put in some further evidence in writing if something occurs to you later. Thank you. It has been really interesting.
