24
Examination of witnesses
Courtney Bryan, Dr Hannah Graham and Dr Eoin Guilfoyle.
Q52 The Chair: Welcome to another evidence session of the Lords Justice and Home Affairs Committee on community sentences. Welcome to Courtney Bryan, who has come the furthest, all the way from the States. Thank you for being here bright and early. Welcome also to Dr Eoin Guilfoyle, who has come a shorter distance, although coming into London on a hot morning is not fun, and to Dr Hannah Graham, who is online from Scotland. The other person online is Gemma Birkett, our specialist adviser. We have received apologies from Baroness Henig, Lord McInnes of Kilwinning and Baroness Sanderson of Welton.
I will go straight into questions and we will all have some for you. The first one is for context. In England and Wales, community sentences are between fines and custodial sentences in the hierarchy of sentencing options. You are each talking about a different jurisdiction. Please tell us about the equivalent sentencing options in your jurisdiction.
Courtney Bryan: Good morning, everyone. Thanks for having me. It is a real honour to be here today.
I represent the perspective of the United States and I will talk broadly about the US, but I will spend most of my time focusing on one state: New York, and in particular New York City. As you may all know, although the United States has a federal Government, and there is certainly a penal law that governs federal crimes, but the vast majority of our justice system is local, not just at the state level but at the municipal level.
I want to talk about three primary equivalents to community sentences that exist in the United States. I will spend the least amount of time on the first but it is the most pervasive: probation. It is probably very similar to your system. In every jurisdiction, a law enforcement agency provides an alternative to prison, sometimes statutorily and sometimes at the discretion of a judge. I imagine that, quite similar to your system, it involves both monitoring of and connection to services, with the expectation that probationers will engage in work, treatment and whatever is needed and determined by the probation officer. In some cases, the judge himself or herself asks for special conditions that probation helps to facilitate and oversee.
I want to focus on two areas that are newer and becoming more ingrained in the US justice system, in particular in New York State: problem-solving courts and what we more generally call alternatives to incarceration programmes.
I am sure you are all familiar with problem-solving courts. Our sister organisation in the UK, the Centre for Justice Innovation, has done a lot of work in this area and has a lot of resources to help jurisdictions set up problem-solving courts—community justice, community courts, treatment courts and others—in the juvenile family court as well as the criminal court jurisdiction.
In the US, this is becoming an increasingly promising and prolific type of intervention, with a specialised judge and a specialised docket. Often, folks are referred into the programme—sometimes by the prosecutor, sometimes by statute and sometimes by a judicial practice—to get them into a court that seeks to connect people, first, by understanding the underlying issues that drive people to come into the justice system, which in a particular case might be severe mental illness or serious substance use, for example. The opioid crisis, for example, in the US has fuelled more interest in problem-solving courts that specifically address those issues. Drug treatment courts have grown significantly around the country, and a lot of evidence has been generated in the US about how effective they are.
The Chair: We will come back to that, because there is quite a lot to unpick.
Courtney Bryan: Exactly. The third, after which I shall pass to my colleague, is alternatives to incarceration—a broader umbrella term that does not necessarily mean that a specialised court is involved, although a judge monitors compliance with progress in a treatment programme or a combination of services. They may be employment services, treatment or acquiring certain kinds of credentialling. Those are run by non-profit organisations in the US. Our organisation is one of them. It runs a lot of alternative to incarceration-type programmes throughout New York City. Judges are increasingly seeking interest in alternative to incarceration programmes, because more specialised services can be found in non-profit organisations that are willing to serve in this function.
Lord Beith: You say that they are all judge-supervised.
Courtney Bryan: Yes. There would be a court mandate to participate in the programme, but it is not necessarily in every jurisdiction that one judge oversees the compliance—a sort of docket with a specialised alternative to incarceration programme. A number of judges in the courthouse could be using alternatives to incarceration and monitoring.
Lord Beith: It is not simply the police saying to someone, “We can take this to court, but if you carry out this programme we don’t need to do so”.
Courtney Bryan: Correct. In the US, especially in New York, we call it early diversion. This is your sort of resolving cases out of court. I would not say that it is becoming more common yet, but New York City is looking to institutionalise that. Our organisation helped to pilot a programme called Project Reset. It is generally for low-level misdemeanours, although some people are charged with misdemeanours that some may not view as low level, and folks who may even have come through the system before; it is not necessarily just for first arrest.
There has been agreement among the prosecutor’s office, the defence Bar and other stakeholders that these are the kinds of cases that are appropriate to be resolved out of court. At the precinct, the police identify people eligible for Project Reset and make a referral to our organisation. If the person voluntarily agrees to participate in Project Reset, they complete a brief service and their case is dismissed, so they never have to appear in court.
We have seen promising results in tremendous compliance; more than 90% of people comply with the mandate. An evaluation that we did a few years ago of those who participated in Reset, compared to those similarly situated who did not, did not find any increase in reoffending.
The Chair: Let us go to Scotland—to Edinburgh.
Dr Hannah Graham: Good morning. The main type of community sentence that my comments relate in Scotland to is the Community Payback Order, which is an order of the court. It can be imposed concurrently to another order, such as a fine. However, it is usually an alternative to custody. A level 1 Community Payback Order with unpaid work could be an alternative to a fine.
A Community Payback Order is the most common or frequently used supervised community order in Scotland. Justice social workers are usually the supervising officer or responsible officer for a community payback order unless it only involves the requirement of unpaid work, in which case an unpaid work case manager might be the responsible officer. It is imposed by the judiciary, predominantly in our sheriff courts, under summary procedure. Prior to Covid, approximately 17,000 to 19,000 Community Payback Orders were imposed per year. During Covid, that has been affected by other things—court backlogs and so on.
A Community Payback Order can be made for between six months and three years. The judiciary has discretion in considering the intensity and requirements that might be imposed, but a Community Payback Order will always have either an offender supervision requirement or an unpaid work requirement, or both.
Other types of community sentence are available in Scotland. A common one is a restriction of liberty order, which involves only electronic monitoring and tagging and usually a curfew. In some cases, it could involve exclusion zones. In Scotland, we also have drug treatment and testing orders—DTTOs. They have a fairly high level of intensity of supervision and are for people who might otherwise be sentenced to custody and whose drug use is prominent.
Problem-solving approaches are not available in every sheriff court, but where they exist the sheriff courts might use a Community Payback Order to take a more supervisory approach in bringing people back before an alcohol court in Glasgow, for example, or they might use a structured deferred sentence, which is similar to the imposition of a Community Payback Order but the judiciary has decided to defer sentence for approximately six months and sentence at the end of that. Supervision and returning to the court for review hearings are common.
Community Payback Orders are our most common supervised sentence. Justice social workers are fully qualified and accredited to be able to supervise them.
The Chair: And Eoin Guilfoyle on Ireland.
Dr Eoin Guilfoyle: In Ireland, three sanctions fall between a fine and a person being sentenced to prison. The first is a probation order. This is where a judge finds the facts of the case proven but does not proceed to a finding of guilt, instead imposing a probation order, which can include supervision by the Probation Service for up to three years. It can also include other conditions such as residing at a particular location or participating in a specific programme or course. If this is done in the district court, it will not result in a conviction. However, if it is imposed in a higher court, a conviction will be recorded.
The next sanction is the Community Service Order, which is unpaid work in the community between 40 and 240 hours. It can be imposed only as a direct alternative to prison. A judge must first determine that a custodial sentence is warranted before considering whether to impose a Community Service Order as an alternative.
In recent years, Ireland has introduced an integrated element into the Community Service Order. A person can, in discussion with a probation officer, agree to participate in an education, treatment or training programme. If successfully completed, they will get a reduction of up to one-third of their community service hours. If they do not successfully complete it, it does not result in a revocation of the order; they just go back to doing the normal community service hours.
The final sanction is a suspended sentence, which operates in the same way as a suspended sentence order in England and Wales.
Q53 Baroness Prashar: Thank you so much for a very clear description of how things operate in your respective countries. How have these community sentences evolved in your respective jurisdictions—or something similar to what we have here?
Courtney Bryan: Again, I will focus on New York State and New York City in particular.
The legislative landscape has changed. New York State has tried to reduce mandatory minimums and the maximum that folks are able to be sentenced to. That has been a shift. We have had an incredible reduction in prison sentences. You can see from the written testimony that significant numbers of folks are now receiving community sentences over a prison sentence, in addition to a decline in crime.
That is true at the municipal level with folks who are now the jail population—people who would have been held pre-trial or are arrested for a low-level offence and get up to a year in jail. That has significantly declined over the past few decades. Part of it has been sentencing reform, and some of it has been an evolution in the focus that we are targeting—and feel comfortable with, frankly—in offering alternatives to incarceration or community sentences.
Two decades ago, my organisation started to look at low-level offences— people charged with misdemeanours that did not involve civilian witnesses or complainants, such as petty larceny, prostitution, and drug use and possession—and looked for alternatives to a fine or to jail, or frankly an alternative to nothing for those kinds of cases. We developed the midtown community court as an experiment to see whether we could connect people to job training, mental health services, housing and that kind of thing, in lieu of traditional responses.
There was a lot of appetite in the early days for looking at low-level offences, and for the most part we have diverted most of them out of the jail system. They are either getting early diversion or, if they must come to court, are being resolved with an alternative to incarceration or in a problem-solving court.
The next evolution was in problem-solving courts and looking beyond low-level offences and at more serious cases. We saw the proliferation of drug treatment courts and even some mental health courts, resulting in an interest in looking at people who may be charged with a felony drug possession case or other non-violent crime and connecting them to services and supervision in the community instead of jail or prison.
More recently, there has been interest in looking at people charged with more serious offences, including violence. I have two examples to give. If you are in New York City, I encourage you to see the Brooklyn mental health court. Over several years, it has proven effective in reducing recidivism. Most of the people before that court are charged with violent felony offences and have serious mental illness but have terrific outcomes compared with the traditional system. There is a lot more interest in trying to replicate a programme like the Brooklyn mental health court, where prosecutors are more interested and have tolerance for looking at alternatives to prison for even those kinds of cases.
Two years ago, our organisation piloted a new problem-solving court that we called a Felony Alternative-to-Incarceration Court in Manhattan. It looks at people charged with a serious offence. They may not necessarily have a serious mental illness or a serious drug problem, but they are viewed as someone who would benefit from receiving—and society would benefit from them receiving—services in lieu of prison. A lot of younger people are charged with robbery, burglary and assault—serious cases—but may require a more customised, tailored package of services and monitoring for their particular case.
I see the Felony Alternative-to-Incarceration Court as the next evolution in the spectrum of problem-solving courts. They are there not just to work with folks who essentially have serious health problems such as mental illness and drug use, but other issues including criminal thinking and other criminogenic factors. They recognise that there are interventions that can be effective. We plan to evaluate the model to see whether it improves public safety and reduces the use of poor outcomes in the justice system.
Dr Eoin Guilfoyle: In Ireland, one of the standout features is that there has not been a huge amount of development over the years in community sentences. This has positive and negative aspects. The positive is that Ireland did not experience the punitive turn in community sentences that many other jurisdictions did. The negative is that they did not develop along with the best available research evidence. It is not until the introduction of the integrated element into Community Service Orders that we see the first significant development of community sentences. Many of the other developments were focused on trying to increase the use of the Community Service Order as an alternative to prison, rather than changing the sanction itself.
Two main reforms were introduced. The first was in 2011, when legislation required judges to consider using a Community Service Order in all cases where they would otherwise have imposed a prison sentence of 12 months or less. This resulted in a significant increase in the use of Community Service Orders in 2011, but it began to decline again in subsequent years. By 2014, it was back at the level as it was prior to amendment. That is not surprising, because the legislation did not do a huge amount; it asked judges to consider using sanctions that already existed.
The other major development that had an impact on the use of the sanction was in 2016. The Fines Act was implemented, allowing judges to use a Community Service Order as an alternative to imprisonment for fine defaulters. Prior to the Act, a judge had no option but to impose a prison sentence. That has resulted in an increase in its use in recent years.
Baroness Prashar: Hannah, what are things like in Scotland?
Dr Hannah Graham: We have had some landmark reviews and reports that are fairly influential in considering the evolution of community sentences and, more broadly, community justice in Scotland. A few of them occurred in 2007-08; other particularly notable ones occurred in 2011-12. They reflect reviewing the national objectives for justice social work and the effectiveness of community penalties.
Another one was the Scottish Prisons Commission’s Scotland’s Choice report, otherwise known as the McLeish report, which was launched in 2008 to consider why Scotland is such a high-punishment society and why it has such a high incarceration rate and high rate for the imposition of community sentences. It tried to refocus efforts on what imprisonment should be used for. It made some fairly strong recommendations on the use of or the changing and evolution of community penalties.
Combined with the Commission on Women Offenders’ Angiolini report in 2012, these made for fairly stark reading. Audit Scotland, an independent and very respected body came to the Parliament and reviewed the Scottish justice system in 2011 and the evidence on reducing reoffending in 2012. The types of themes coming through were that there was a greater need to focus on risk management and risk assessment to further emphasise community safety in the use of community sentences. There were questions on governance and accountability through some of the arrangements that oversaw community sentences at that time.
We move towards a point when in 2011 Community Payback Orders were introduced. They had nine requirements that could be considered—more of a menu of options that the judiciary could impose and justice social workers could feed back into. In 2019, electronic monitoring was added, and that became the tenth.
Evolution has reflected that there have been different points where leading community justice authorities have said, “We don’t know if we are meeting the national outcomes in how we supervise and support people on community sentences”. There were questions on reducing reoffending needing to be central, as well as the humane and welfare considerations that might go into supporting people on community sentences.
The Community Payback Order was a key feature of how things have changed in Scotland. We now have different performance requirements for how we consider making progress on employability, reducing reoffending and supporting desistance in local communities.
Overall, the preceding reports and reviews just said that the community justice landscape is complicated. People do not clearly have a sense of who they answer to. That could affect the oversight of people on community sentences if there is no accountability around the types of improvements that we would expect to see.
Baroness Prashar: Thank you very much. There are lots of questions to follow, but I will leave it there for the moment.
The Chair: It happens at every meeting that people have so much to say and to tell us, but we have to keep an eye on the time. If we spend more than a few minutes on each question, we will run out of time.
Q54 Baroness Shackleton of Belgravia: It is in the mind of anybody sentencing that the best sentence should be passed to try to break the repeat offender—to keep that person from coming back, to be a deterrent and to manage their acclimatisation into society. Which is the most effective sentence in your respective jurisdictions to achieve that? What part does the community sentence, or its equivalent, play? The answer might be different depending on the crime you are addressing, but in general what would you recommend as your most effective sentence?
Courtney Bryan: As you said, to try to break out of particular crimes, there are three principles and overarching practices. One is the power of the judge, the power of the judiciary, which is why problem-solving courts have historically been so effective—it is not just because of the services but because of the power of judicial authority—in developing a rapport and relationship with the defendant and sometimes with their family. That is one critically important feature of problem-solving courts that can be scaled in and does not necessarily have to live only in problem-solving courts.
The second is procedural justice and legitimacy. It is related to the relationship with judges, but our organisation and others in the US have researched the power of legitimacy—people’s sense that the process was fair, that they were heard, and that a neutral body assessed the facts and outcome. Even when they disagree or it is an unfavourable outcome, if there is belief that the process and system was legitimate it supports adherence to the law and compliance with their sentence.
The third is the most important—I am sure that my colleagues are very familiar with this—and it is the risk-need-responsivity principle, or the risk principle. In social science it looks at matching the intervention to someone’s risk of reoffending, which, to the degree that we can assess humans, can be assessed through a validated tool as well as looking at their needs and then the dosage—recognising that one size does not fit all and the crime does not necessarily correlate to someone’s risk or their needs. The science shows that when you can match risk and need, and address the issues that may prevent access in relation to those needs—mental health issues or homelessness—and get the dosage right, you can reduce recidivism.
Dr Eoin Guilfoyle: The concept of integrated Community Service Orders has a lot of potential. With the idea that the individual opts in and chooses to participate in an education or treatment programme, and has a say in the type of programme that they participate in, there is a much greater likelihood of the person benefiting from it and succeeding in those programmes. It also means that the Probation Service is encouraging the person to participate, and rewarding them if they do so. By comparison, the approach here in England and Wales is that a judge will impose the requirement and a person who does not succeed is punished and could be returned to court and imprisoned.
The concept of an integrated Community Service Order aligns better with principles of desistance. The challenge in Ireland is to ensure that the concept is implemented as intended. In the first years, it does not appear that that has been done. I think it is a priority of the Probation Service to ensure that the concept operates as intended and that its full benefits are achieved.
Baroness Shackleton of Belgravia: Do any of your courts have any rewards? If you were to enter a community sentence order, would you, when looking for a job for example, not be stigmatised by having such a large sentence? You expunge your guilt as an incentive to engage with the community sentence order, to heal and to go back into the community. Is there any trade-off from the sentence?
Dr Eoin Guilfoyle: There is not in Ireland.
Baroness Shackleton of Belgravia: Is there in America?
Courtney Bryan: Yes. One thing that is common in New York is what we would call a conditional discharge or a kind of pre-plea arrangement. Someone can—
Baroness Shackleton of Belgravia:—purge their guilt before sentencing.
Courtney Bryan: Exactly. You are able to earn that. There are responses in a good problem-solving court or a good use of alternative to incarceration. The practice would be to ask why someone did not comply and try to understand what a productive response could be, and instead of using only jail, prison or fines as a response, getting a little more creative and, while still holding someone accountable, having a meaningful response that is not necessarily a punishment.
Baroness Shackleton of Belgravia: Thank you. Now, to Scotland, Dr Graham.
Dr Hannah Graham: Indeed. To answer your most recent question, it is possible for a justice social worker and the court to consider the early completion or termination of an order, or its variation, in recognition of good progress being made towards the requirements of a Community Payback Order, for example. Certain aspects of unpaid work, when that gives back to the community and is focused on skill-building and demonstrating experience in areas where you might not otherwise have had experience or perhaps an educational or training component of the other activity within paid work, could plausibly contribute to a person’s narrative of wanting to seek work, given how high unemployment rates are for people on community sentences.
Separately, disclosure law reform has drastically reduced the time during which people might need to disclose a prior conviction and community sentence. But that is not a feature of the sentence itself; it is something that would happen after its completion.
As to the effectiveness of sentencing, there is moderately in-depth and widespread local and international literature saying that one of the most ineffective sentences is a short prison sentence. The committee has probably already heard evidence to that effect. The judiciary in Scotland would adhere to the principles and purposes of the sentencing guidelines, and would need to balance things like the protection of the public or punishment as considerations. Overall, reconviction rates by sentence type show that community sentences are more effective. The reconviction rate for Community Payback Orders is 29.2%, whereas the rate for people being discharged from prison custody after a short prison sentence is 43.8%. That is for the year just prior to the pandemic.
As you recognise, reconviction rates vary by crime types. Some of the highest are among those convicted of crimes of dishonesty, and some of the lowest might be among those convicted of sexual offences.
There is a balance of considerations for our judiciary, but effective provision of opportunities to access rehabilitative support and the positive social relationships that help people to leave crime behind, and volunteering or unpaid work employability initiatives that might help them to leave behind a criminal identity and criminalised stigma, can contribute to the process of desistance from crime and encourage community integration.
Q55 Lord Blunkett: Some of my question has already been interrogated. I will quickly ask two questions. One relates to the hierarchy of sentencing guidance. In the discussion so far, Eoin has described an integrated Community Service Order and some flexibility with probation, and Hannah has described the situation in Scotland.
Courtney, I sat next to the judge in Red Hook 20 years ago, so I am a little familiar with this, but things will have moved on since. I want to interrogate where the guidance on the appropriateness of the sentencing comes in. For instance, with the courts you have been describing, there is the question of the severity of the alleged crime and where the dividing line might be.
How much integration is there—Eoin, you mentioned integrated Community Service Orders—with the non-statutory, non-public agencies, the voluntary and community sector, or housing associations, and the like? Maybe, Courtney, you can go first.
Courtney Bryan: That is wonderful. I do not know whether you know, Lord Blunkett, that Judge Calabrese retired a few months ago. Fortunately, he is spending time in our organisation helping other jurisdictions to learn from the Red Hook Community Justice Centre, so he is still in the mix.
On your question about discretion and what is allowed by law for lower-level offences, a judge may be able to seek an alternative to incarceration or a community sentence, but in the more serious cases—including, as I have described, more violent charges—in the Brooklyn mental health court or other alternatives to incarceration programmes generally there may be a requirement for a prison term, but with the consent of the prosecutor it may be possible to participate in an alternative to incarceration programme. There are a few different ways to allow for that kind of participation, but it is always with the consent of the prosecutor to effectuate that.
Lord Blunkett: In the jurisdictions that we are talking about this morning, we work in an adversarial system, so how on earth do you get the agreement?
Courtney Bryan: We too work in an adversarial system. It is not necessarily by law that we achieve that agreement. It is through practice and culture. It is more challenging to promulgate that throughout the entire country, or even the entire state. In our country, prosecutors are elected, which makes it even more challenging. It happens through a shared purpose and agreement that the approach is a valuable one to pursue.
Lord Blunkett: Thank you. I think that clarifies it. It is a nightmare. I cannot even begin to think what it would be like here if we had an election for prosecutors. Eoin, do you want to comment?
Dr Eoin Guilfoyle: In Ireland, judges have quite a high degree of discretion. Recently the Sentencing Guidelines and Information Committee—a sort of equivalent of the Sentencing Council in England and Wales—was introduced, but it has yet to develop any sentencing guidelines, so the guidance comes from Court of Appeal judgments or legislation, which, for most offences, would just set out the maximum sentence that could be imposed. That gives judges quite a high degree of discretion.
Lord Blunkett: What about integration of delivery?
Dr Eoin Guilfoyle: Non-custodial sanctions are managed by the Probation Service, which is a national body, and it would fund a range of third sector community organisations—about 60 in total—that would carry out the services that people on probation need. That system works relatively well.
Dr Hannah Graham: I should mention something. The committee is aware of it, but for the public record I declare an interest as a member of the Scottish Sentencing Council. That was acknowledged in written evidence to the committee, but is worth acknowledging here.
Our judiciary retains its discretion and independence with respect to the spectrum of sentencing options available to it. There are general sentencing guidelines around the sentencing process and the principles and purposes of sentencing. A sentencing young people guideline was introduced last year. The council is working on offence-specific guidelines, for death by driving, sexual offences and so on, but the judiciary retains flexibility. A judge who departed from something stipulated in a guideline might record the reasoning or give a view on why it was the case. The judiciary’s discretion on sentencing options is significant.
Where the third sector is involved, it would tend to be contracted by local authorities or perhaps through the Scottish Government, but would communicate mainly with the justice social worker, who might then communicate with the court about the availability of local provision. The third sector is quite vital to how we support people on community sentences to address the underlying reasons why they may have offended, and to support them to leave crime behind. There is usually good communication with justice social workers. At a structural level they will communicate through the community justice partnerships, which are at local authority level.
Q56 Lord Sandhurst: I want to ask about the confidence felt by sentencers in the effective performance of the probation service or its equivalent in your jurisdictions. I have two questions. First, how much confidence do sentencers in your respective jurisdictions have in your probation service equivalents? Secondly, what mechanisms, if any, are there to drive or facilitate co-operation between the two arms—probation service and judiciary? Would you like to go first, Courtney?
Courtney Bryan: Yes, I will continue to go first, thank you. In the United States—or in New York—probation is one actor and it is increasingly becoming less common for folks to be sentenced to probation than to be dealt with by alternative to incarceration organisations. That is your third sector, which we would call the non-profit sector. Although probation is one player, it is not the primary one, and the judiciary will sentence people directly to an alternative to incarceration programme. Probation is simply an option. It is not, in New York, a mechanism or a centralising agency for folks to receive alternative to incarceration programming in non-profit organisations like ours.
That means that there are multiple agencies that a judge may have relationships with. It is a very decentralised system, in a lot of ways. We are trying to find a nice balance between what is good about decentralisation, which is that it is not one size fits all and there are a variety of non-profits with specialisations, and the downside, which is that we do not have a systematic way to attach folks to those kinds of sentences. That builds confidence, I think. Judges may be confident in one organisation but less confident in another. Some of that is fair and some of it may not be. It could just be because of a particular experience a judge had. That is where the centralisation can be helpful.
Problem-solving courts, as one way to centralise, can be helpful. In good problem-solving courts, all the service organisations that support and supervise defendants are brought to the table. Generally, we have what we would call stakeholder engagement and stakeholder meetings, where judges and the agencies come together and talk, not necessarily about individual cases but about how the court works, what a judge finds positive about the different services, and where a judge may find a gap or be frustrated with a service. That is how our felony ATI court was born; a judge felt frustrated by the lack of co-ordination, and a gap in services.
Lord Blunkett: Who, therefore, produces the court report?
Courtney Bryan: The alternative to incarceration programme would directly produce the report. In some courts, there is a role that we call a resource co-ordinator, which may be equivalent to your justice social worker-type role, and would co-ordinate with the agencies—the non-profit organisations—to ensure that they produce the court report and that it includes the kind of information it should.
Dr Eoin Guilfoyle: This is a hugely important area. The research on the topic in Ireland is a bit old, but it shows that about half of judges thought that community service was not beneficial to the client or the community. About one-third were not aware of community service projects operating in their area. That matches quite closely to research in England and Wales. A report by Crest found that 65% of magistrates were not confident that community sentences reduce crime; 45% were not confident that they rehabilitate offenders; and 47% did not have sufficient information about requirements operating in their area. If judges and magistrates do not have confidence that community sentences can reduce crime or rehabilitate offenders, and do not know what requirements operate in their area, it is not surprising that there is a reluctance to use community sentences as an alternative to prison.
I recently did a review of the Irish Community Service Order with Dr Louise Kennefick of the University of Glasgow, and we highlighted this issue as one that should be addressed. Interestingly, one of the jurisdictions that we looked at in coming up with a recommendation was England and Wales. It looks on paper as if a good system is in place—there is a national-level agreement that allows for national-level communication, and guidance for local-level communication between probation and the judiciary—but the research findings seem to suggest otherwise.
I would say that the area is an important one to look into: why, despite systems being in place, there does not appear to be communication between judges and Probation. That could be resolved without a huge amount of resources—in comparison to other things that we may discuss today. If it were resolved, that could be quite effective.
From a judge’s perspective, if they impose 100 community orders and 20 of them are revoked, the only feedback they are getting relates to those that are being revoked or have failed and come back before them, unless they are also being told about the other 80 orders that have benefited the individual, the communities and local charities. I think that is an important area.
Dr Hannah Graham: The Scottish Sentencing Council conducted consultation and engagement with the judiciary across Scotland on this topic. The majority of community sentences are imposed in sheriff courts, so the consultation was mainly with 47 members from the shrieval Bench across Scotland.
The general consensus was that community-based disposals in cases that are appropriate for them are commonly viewed as providing a greater chance of rehabilitation. In general terms, although this would not be the primary consideration of sentencers, they are seen by the judiciary as a more cost-effective alternative to imprisonment. We also conducted a stakeholder event. We have released and published reports on both those things.
My sense is that there is moderate judicial confidence in community sentences, such as Community Payback Orders, but there are some key things on which they have been quite vocal and unified in emphasising, which is that the judiciary and courts need to know what is available locally to them, because community justice in Scotland is very localised across 32 local authorities, and that does not necessarily map on to the sheriffdoms and court areas. They need to have clear and timely information on what exactly is available to them in sentencing a particular individual in a particular local area. In recent years, to answer that concern by the judiciary, Community Justice Scotland and the Scottish Government have worked on providing directories and updates by local authorities on exactly what is available.
There are two clear areas of emphasis. One is for greater consistency in the provision of community-based services and programmes. That is linked to other interests in the limitations of resource, constraints on justice social work workload, the availability of third sector services providing rehabilitative support in a particular area and the availability of unpaid work placements that are diverse and able to cater to needs.
Consistency does not have to mean uniformity from the perspective of the judiciary. Our sheriffs in Glasgow recognise that their needs are not necessarily the same as those in Alloa, Inverness and so on. There is a fairly healthy or moderate confidence in community sentences, and the use of community sentences is common. We have not seen drastic changes, apart from in pandemic-related times, which might involve other factors.
They would like to see greater and more consistent provision for people falling within particular offence categories—provision such as domestic abuse provision and sexual offence programmes that might reduce the likelihood of that happening—as well as for people with particular characteristics or circumstances, such as what trauma-informed approaches are available for women with multiple complex needs, or what might be available for young adults in a given area.
There is emphasis from the judiciary on the need for funding and resources and for those services to be available in a consistent way and to be sustained. That can sometimes be affected by short-termism in 12-month funding contracts, which is an issue that comes up fairly commonly in community justice and probation.
Lord Sandhurst: In your respective areas, if there was one thing you could identify to improve feedback and confidence, what would it be? It may well be different in different areas. Do you have any ideas? What about in New York?
Courtney Bryan: In New York, a mechanism for judges to hear the outcomes in cases that have been successful, in addition to those that have not, is really important, as Eoin said. Often, judges are hearing one case after another and not getting aggregate information about the outcomes in their practice in their courtroom. One thing we have been doing in New York, for better or worse, is showing judges where they land on the use of community sentences versus others—they are coming at this from different views—plus regular education where judges, as part of their training and ongoing education, are receiving information from folks who are not lawyers. It is not about the law; it is training in adolescent brain development, trauma, the impact on society and matters that impact people coming before them, for them to better understand the full picture of the person before them.
Dr Eoin Guilfoyle: There would need to be national and local level communication. You can communicate with the judiciary as a whole about the benefits of community sanctions, but that alone would not be sufficient, because for a judge or magistrate in an area it would be much more beneficial to know the benefits that community sanctions have had in their area, and to be aware of what projects or programmes are available.
It can also be an opportunity for feedback in both directions. A judge may want some input from the Probation Service about pre-sentence reports, for example, and what he would like to see in them. Ultimately, it will be the role of the Probation Service to write these. It would not be binding on them, but having that communication between a judge and probation officer at local level would be very beneficial.
Dr Hannah Graham: To echo the views of the others, there are multiple levels at which we could improve and further expand communication. At a very individual level, although it can be quite helpful, we could perhaps encourage or see, where appropriate, the greater use of review hearings in a Community Payback Order for people with particular characteristics or circumstances. Sheriffs involved in a problem-solving approach would be quite familiar with using review hearings and hearing updates on the progress of people whose alcohol use might be closely linked to their offending behaviour, but often there might be all sorts of other factors to do with their health, welfare, trauma, income, poverty and so on. Communication mechanisms can be quite useful where review hearings are imposed on Community Payback Orders. That has been part of the conversation around sentencing young people.
At the local or community justice partnership level, there could be greater communication between the predominant sentencing courts in their area and the community justice partnership, although there are already conferences or meetings where people might be hearing presentations and updates on what is happening in their city or town.
We have some good precedents in Scotland where communication has worked well. Through the Judicial Institute for Scotland and various bodies that represent different members of the judiciary there has been focused communication and, in some cases, training around trauma and things like domestic abuse and so on.
If we wanted to improve the communication and updates on the effectiveness of community sentences, there would be an opportunity not only in judicial induction training when people first join the Bench but in regular judicial training or communication forums on the online hub that all of them access through the Scottish Sentencing Council. For example, there might be a communication on what circumstances and what types of unpaid work are far more effective, creative and meaningful in reducing reoffending compared perhaps with forms of unpaid work that are less effective, not as meaningful, potentially stigmatising, repetitive and so on.
If the judiciary wanted greater communication at that level, there would be an appetite for it with community justice services. We have already seen progress made where that communication and training has been happening. There is really good awareness around trauma-informed practice and being responsive to cases involving domestic abuse.
Q57 Baroness Meacher: A lot of what I intended to say has already been dealt with. I am very interested in the Irish system. It seems, to me anyway, that you have a good way of trying to get people with addictions into treatment with a good incentive structure: you have the community order with punitive elements to it. If somebody agrees to treatment, some of the punitive elements will be set aside and, if they complete the treatment, most will be set aside. Is my understanding correct?
Dr Eoin Guilfoyle: Up to one-third of the hours would be set aside.
Baroness Meacher: What percentage of prolific low-level offenders in your system get into treatment and reduce their reoffending as a result?
Dr Eoin Guilfoyle: The integrated element of the Community Service Order has been operational for only a number of years and has not been hugely effective. There has not been a huge uptake, but I think the reason is that when it first became operational the individuals themselves had to source the training or treatment programme. My understanding is that it is now looking to change it, because that was a barrier to a person opting in. Ideally, it would operate where the probation officer encouraged the person, and if they do want to opt in they would work with them to identify and source an education or treatment programme.
Baroness Meacher: Turning to Scotland, I did not get any impression that treatment is a major factor for people with addictions, even though, as we know, the majority of people in prison are there for drug-related offences and addiction is a major factor in reoffending. What do you feel you might do slightly differently to achieve greater treatment for addicted offenders?
Dr Hannah Graham: Within the framework of community sentences in Scotland there has been growing and prominent emphasis on supporting people to address their underlying substance use issues. This has been linked with changes in drug and alcohol funding. At one point in recent years there was a massive cut. We then had prominent, sensitive and serious—and some of the highest—drug death rates in Europe and beyond. We also had high rates of death from alcohol. I have looked at some of the statistics on deaths on community sentences. We have a concerning number of people dying on community sentences in Scotland who we would not otherwise expect to be dying at that age and at that stage.
Across Scotland, there is good collaboration between community justice partnerships and alcohol and drug partnerships, and health boards in the NHS are a statutory partner in the community justice partnership. We have quite low levels of use of the alcohol treatment or drug treatment requirements in a Community Payback Order. My understanding from the available literature and consultations that have been conducted is that the judiciary tends to leave it as a component of an offender supervision requirement, whereas a justice social worker might work with the person to do motivational interviewing, access counselling, go to their GP or access particular harm reduction and treatment options associated with their use. Moderate progress has been made in Scotland on drugs and alcohol, partly because of the very concerning number of deaths.
The area where we need to see much more significant progress made is mental health treatment. There is very good consensus across various consultation reports and academic research that mental health is one of the most difficult for people on community sentences to get into. Getting GPs to answer the phone, let alone accessing an appointment, is an area where we could see a lot more progress. The concern that would be echoed across the judiciary, as well as social workers and people on the orders themselves, is that mental health needs more resources, funding and availability for people to get into.
Baroness Meacher: Courtney, is there one change to your system that you feel would be beneficial in getting more addicted prolific offenders into treatment?
Courtney Bryan: As a backdrop, in New York the legislature passed bail reform that prevents people who are charged with low-level offences—misdemeanours and non-violent events—from being detained pre-trial. There is little leverage in those cases to compel people into treatment. Now, the search for how we effectively engage with them voluntarily is even more urgent, because that is the lever we have.
One practice that I am interested in and in which we are involved in New York is looking at the jail population in New York City and creating what we call a population review team that looks at who is in jail and why they are there. It looks at people who could be out in the community. How can we get them the co‑ordinated care and services they need to be able to be released?
I think there is promise for voluntary support in that. There are 2,500 chronic misdemeanants in New York City. Trying to take lessons from the jail population review, which is a very targeted approach looking at those at the highest risk and the highest utilisers, how do we bring the agencies together to focus on these individuals? All these individuals in New York have had a million opportunities at getting services. It is not the lack of service that is the problem. One thing we are thinking about is the value of relationships and the power of a relational approach. If we can identify a handful of people who are essentially individuals with a connection not just to services but generally to humanity, is that a way to create an incentive to seek services? We will see how it goes.
Q58 Lord Filkin: This is fascinating. In a sense, Baroness Meacher has already asked you part of my question, which is about what we can most learn.
At a high level, it looks as if you have developed a lot of practice in thinking more about how to get better disposals that address causation and the population review mechanism, which again is fascinating. It looks as if that is a systematic way of trying to identify it. Is that right? If it is right, how would you recommend we break into this, recognising where we are and that money is not limited, as it is at present?
Courtney Bryan: There are a couple of things. One is that there is more reliance on how to support community-driven local intervention and pilots that are bespoke for that community. That could be supported. Therefore, in the spirit of the Red Hook Community Justice Center, it is very challenging to replicate that particular programme. If you come, you will see why. It is very resource-intensive, but there are ways to apply it in other parts of the city and the country.
Here, I think you can take lessons from it and look to scale it. That has been true in the United States. We now have over 100 community courts, but they do not look like the Red Hook Community Justice Center; they may be out of a library or centralised court, but they are taking some of those principles of essentially making community sentences, or community-based justice, the default, and prison or jail the exception, instead of the other way round. That is one way.
The other is the idea of piloting something, evaluating it and seeing how it can be scaled, and how to seed not necessarily a centralised, whole-system fix. It is recognising the power of innovation and trying something that can sometimes create a seed that can turn into a systemic change, which is what we have seen in New York. Over the past 20 years, the reduction in crime and incarceration in New York City has not happened through a centralised grand plan; it happened through seeding a number of different smaller interventions that all added up over time to this shift.
Dr Eoin Guilfoyle: I think there would be benefit in the management of community sanctions and the development of policies on community sentencing to take a welfare-oriented approach that is focused on helping and supporting a person to desist from crime, and to move away from the approach of making community sanctions more and more punitive. If that can be done, the potential to reduce reoffending and the benefit to individual communities can be significant.
Dr Hannah Graham: In Scotland, my reflections would be similar to Eoin’s. On paper and in policy rhetoric from Governments of various forms, as well as parliamentary rhetoric, you will hear an emphasis on a welfarist approach to community justice and community sentences, but when you delve deeper below the rhetoric, the justice visions and the hopes and ambitions, you find in practice that on the positive side Scotland is quite attentive to diversity and equality. Across justice social work, the judiciary and others, you do not need to convince them to care about a person’s protected characteristics or their circumstances, but we still see disproportionate, extensive and pervasive social inequalities, such as unemployment, poverty and multiple deprivation in the lives of those who come to be given community sentences.
Some of the answers might lie outside the justice system with stronger collaboration between colleagues and organisations involved in welfare community service provision, and even just the maintenance of fundamentally important human rights, which people with convictions do not forgo simply because they have been given a community sentence.
Communication could perhaps be improved where community sentences are not alternatives to imprisonment but become additives or precede imprisonment. That might be a case where there are sustained patterns of breach that are not necessarily reoffending. I am not asking the courts to overlook a person on a community sentence committing serious crimes; that is for the courts to deal with. But where I see people being breached on technicalities because their lives do not comply strictly with requirements, could we see more progress and communication between the judiciary and courts, justice social work and community justice, our Parliament and our Government to better support people in communities so that they do not escalate into prison sentences?
That is alongside conversations about why, for example, thousands of people are still sentenced to Scottish prisons for issues like shoplifting, when the wider Scottish narrative around welfare and exceptionalism does not fit necessarily with prison being used for issues like shoplifting, which might be associated with social inequalities and could be better addressed in communities.
That is an academic argument, but I suggest that there is a good appetite for us to live up to some of our ambitions in Scotland and match our rhetoric, which is quite progressive and ambitious across many fronts, with practice that not only supports people to leave crime behind but addresses deep-seated social inequalities and other reasons like mental health conditions that might contribute to their offending, and why they have come into a criminalised system and have not been able to access mental health services earlier.
Q59 Lord Beith: I have specific questions to individuals. First, Dr Graham, do we know whether the statutory presumption against short sentences is having any impact, or is it too soon to tell?
Dr Hannah Graham: That is a wonderful question and one that is creating intense interest in the Scottish Parliament.
The first presumption against short sentences was implemented in 2011. That would probably have been for sentences of three months’ imprisonment or less. In 2019, the order was debated in the Scottish Parliament to extend that to 12 months or less. The judiciary still retains its discretion and decision-making, so it is not a ban.
The statistics on the presumption over time since 2011 show that the changes in short-term prison sentencing have been gradual or incremental. Therefore, there has been a reduction since 2011 of shorter prison sentences, but even the Scottish Government would acknowledge in their policy aims that they knew the judiciary would not necessarily change its decision-making overnight, because it needs to do what it sees as appropriate. Therefore, there has been an incremental change.
The extension to 12 months or less happened just before the pandemic started, and there has been separate guidance on case prioritisation. So even what the courts are seeing before them at the moment is perhaps not fully representative of what they would have seen before, but prior to the pandemic the reduction in short prison sentences was gradual, for reasons that could include a presumption against short prison sentences but could include other factors such as reducing the amounts of court business or crime coming before the courts and so on. It is a modest decrease. It certainly has not prevented prison sentences under 12 months being encouraged where the judiciary sees that as appropriate.
Q60 Lord Beith: Dr Guilfoyle, there are two ways in which magistrates might know more about the effect of sentences. One is to know what has happened to the people they have sentenced. The other is to produce the data, as you have argued in the paper. Which do you think is the more promising, and how could we improve the use of either?
Dr Eoin Guilfoyle: Both need to be done. It is about giving judges some feedback on the positive outcomes of community service in their areas: the number of hours performed, the community organisations that benefit from community service, and the impact it has on individuals who have participated in it. All of this is important information that should be fed back to judges.
There are a number of ways in which that can be done. It could be through regular meetings provided for the current agreement between the Probation Service and judges. Other jurisdictions, such as Northern Ireland, produce a newsletter that is sent out to judges. I think it can be a combination of a number of different approaches, but the key thing is: are judges and magistrates getting this information?
Q61 Lord Beith: My final question, Ms Bryan, goes back to Lord Blunkett’s earlier question. In a country where prosecutors, as you point out, are elected, has the political context inhibited, enabled or even pushed forward the kind of initiatives you have talked about, and to what extent has it depended on organisations like yours creating a narrative that says, “We’re wasting money and not achieving very much in the system now. There are other things we could be doing”?
Courtney Bryan: It is a great question. The politics until the past couple of years have enabled and pushed forward reforms. You see in the United States a group of prosecutors, some of whom identify proudly as progressive prosecutors, whose mission is to reduce reliance on unnecessary incarceration from a safety standpoint, because research that has been alluded to here on recidivism and sentencing—it is true in the United States—recognises that even short stays in jail, in our case, do not produce better outcomes. That has fuelled prosecutors who sometimes run on platforms, particularly in urban areas, where a lot of—
Baroness Chakrabarti: I am sorry to interrupt, but how did that happen? How did we go from President Nixon’s “War on Drugs” to all this amazing progress? You have even used the language of “dosage” and “treatment” when you are not actually talking about drugs but wider problem solving. How did that happen?
Courtney Bryan: The United States hit its peak of mass incarceration at a time when folks were open to the economic and human costs, recognising that whole neighbourhoods in some of our urban areas were decimated. Young men of colour, mostly black men, were taken out of their communities and involved in crime and overpolicing, which led to that.
It is a great question. I do not think there is one answer. That has been a call over the past five or six years. Prosecutors now come into the field recognising the role they play in helping to fuel inequality and harm, not just to the people impacted by incarceration but society in recognising that jail is not producing safety. Organisations like ours certainly play a role. There is vitality in the non-profit and philanthropic sector. In many ways, even in New York City, you see people coming into power who do not come from historical power structures. In New York City, for example, you have the most diverse city council in the city’s history; it includes mostly women and overwhelmingly people of colour who have not come up within historical power structures. It is community justice. These are community-driven people who, with their families, have lived in neighbourhoods impacted by these policies for decades. They are now in a position to be able to do something about it.
Clearly, we are an interesting country of extremes. We also have politicians on the other side who call for tough-on-crime approaches. We will see how far that goes in shifting the moderate centre, but in our country it is exciting. There are people who do not identify necessarily as progressive prosecutors. For example, we are working in a jurisdiction that is what we would call a “purple state” because it is not politically conservative and not a particularly progressive bastion like California and New York. They have hired us to work with them to re-imagine their entire state’s attorney’s office and how they think about it.
Baroness Chakrabarti: Which state?
Courtney Bryan: Connecticut.
Lord Beith: In many electoral districts in a state like New York or a city like New York, those seeking election with the responsibility for prosecution have to address audiences that contain many people whose families have been involved in crime and perhaps have relatives in jail. There is a tendency to assume, is there not, that everybody in the United States believes that longer prison sentences will solve problems?
Courtney Bryan: Yes. As you said, for many decades one-third of Americans have a family member who has been impacted by the justice system in the sense of having been incarcerated. It is a pervasive problem in the United States that has called not just on prosecutors but on the private sector to help to solve the issue when it comes to both funding and supporting initiatives that seek to reduce reliance on incarceration and hiring—trying to make more efforts to hire people who have been convicted of crimes or spent time in prison as well. It has been seen as a broader social ill in many ways over the past 10 years, like healthcare inequality and other economic inequality. Maybe it was because things were so bad for so many people that it was recognised. I hope that is helpful.
Lord Blunkett: Take my best wishes back.
Courtney Bryan: I certainly will.
The Chair: Your papers were really interesting. Courtney, am I right in reading—this may just be New York—that there are a lot of, for want of a better word, “deals” that enable offenders to avoid trial and conviction?
Courtney Bryan: Yes.
The Chair: That seemed to be quite a notable aspect of how the system is working.
Courtney Bryan: Yes. Plea bargaining is what we call it here. I was a practising criminal defence attorney before coming into this role. I am sure that the numbers in jurisdictions change a little bit, but at least 90% of cases are resolved through a plea bargain. There are very few trials.
Coercion is increasingly an area of scrutiny; the sense that people are often coerced or feel that coercion is a part of that process. As one of you asked, that is a mechanism by which prosecutors have input.
Q62 Baroness Chakrabarti: You have talked about legitimacy and due process being one of the things that causes offenders to have a stake in these alternative disposals. There is a tension there.
Courtney Bryan: There is a tension. At the same time, there are people who benefit tremendously from plea practice, in the sense that they may be charged with a felony, and if they can successfully complete an alternative incarceration programme they could have the case dismissed. In the best of circumstances, a District Attorney’s office—and sometimes by statute a judge, depending on the case—has the discretion to dismiss a case or certainly order a reduction in the time that someone may be facing. They may be able to plead to a lower-level charge that would have fewer consequences than a felony.
Lord Sandhurst: So you mean sentence first, trial afterwards.
Courtney Bryan: Yes, exactly—or no trial. One of the things that has come under scrutiny has been a practice sometimes to punish people for going to trial. A prosecutor may offer a deal that they have the discretion not to offer at a later date. It is called the “trial penalty”, which is a phenomenon that, again, is under scrutiny, recognising that it compels.
The Chair: Is that the pre-plea initiative?
Courtney Bryan: Yes.
The Chair: I am not sure whether I am correct in what I read into this. Again, it is New York. There seems to be a very impressive and extensive range of services that we talk about in this country as being within probation. There are a lot of facilities compared with us or other countries. Is that right?
Courtney Bryan: I think the United States generally is a funny country. We both do not like government and sometimes empower government in interesting ways. There is a lot of reliance on non-profit organisations, for better and sometimes worse, for basic services. In New York, there has been a proliferation of government support. Instead of investing only in government agencies to deliver those services, it is investing in non-profit organisations, so it is taking the funding that may be invested in a probation office and putting it into the non-profit sector.
Lord Blunkett: That is what I was trying to get at earlier.
Baroness Chakrabarti: In Lord Blunkett’s question about who writes the court report, you described a person who sounded like a probation officer to me. They might be called something else.
Courtney Bryan: In some jurisdictions, probation plays a much greater role. Frankly, New York is exceptional, both culturally and because there has just been government investment in non-profit organisations. In other jurisdictions around the country, probation is, as we would say, the only game in town. It is the only entity providing those services. They may or may not have non-profit organisations that are partners.
Lord Blunkett: I imagine it is true in Scotland and in Northern Ireland, but we have the most enormous backlog. Part of that is the inability to get up-to-date and timely court reports. Perhaps we should look to a different profession to prepare community orders, as opposed to looking only to the Probation Service. Would one of the three of you say that that is worth exploring? Our system is that, unless you say it, it will not be taken into account in the committee’s report.
The Chair: We can take written evidence. We have some already. We can take more.
Courtney Bryan: About court reports?
Lord Blunkett: Yes.
Lord Blunkett: Eoin, did you nod?
Dr Eoin Guilfoyle: I did not. In relation to an external body doing a pre-sentence report, I would say that the Probation Service is a good body to do it rather than it being done by an external body. That would be my opinion.
The Chair: Hannah, is there anything else you would like to contribute?
Dr Hannah Graham: Yes. In terms of what might be noteworthy or worth emphasising in England and Wales that is also a consideration in Scotland, it is not directly the implementation of community sentences but it certainly affects it.
I believe that HM Inspectorate of Probation for England and Wales released a recent report on workloads in probation. We have workload and workforce considerations, and considerations of their sustainability in Scotland as well, but it is perhaps not as acute given the structuring changes that have happened in England and Wales. No matter how skilled a very well-trained and well-qualified probation officer is in England and Wales, if their workload hours, their caseload, the complexity and mix of sentences, the people and circumstances they are supervising is very high, and if they are also considering organisational emphases on risk management, public protection and the likelihood of one case unfortunately becoming a higher-profile case and going to a serious case review, that is not particularly conducive to the things that we have in extensive, excellent academic research in England and Wales, in Scotland and across Europe.
Good probation practice takes time. Good relationships and rapport affect legitimacy and perceptions of fairness for those on community sentences. That takes time and good communication. Perceptions of legitimacy and fairness are relevant as one of the factors in the extent to which the person complies with their order—if they feel that their questions are not answered or that they never see the person except when there might be a risk, they do not listen to their needs or underlying concerns about their rehabilitation and desistance from crime.
Nearly every qualified probation officer and justice social worker I know would love more time for that relational ethos, and for that supervision that shows the full strength of their professional values and their professionalism in how they respond and supervise the people they are working with. When those caseloads are eye-wateringly high—I believe that Justin Russell and his colleagues had a few things to say about that in the context of England and Wales—that will necessarily affect the experiences of people on community orders. It is not that their compliance or non-compliance occurs in a vacuum. The communication with the person who is supervising them does matter.
My emphasis on relational practice comes as a criminologist who gets to edit a journal, be a peer reviewer and co-author books and articles on rehabilitation and how people desist from crime and leave it behind. Really good, principle-based supervisory practice in probation in England and Wales is hindered if you have a workforce that is quitting and most of the workers have only been there for two years—if they have not had the time to work alongside their more experienced colleagues and if they are feeling as if they need to do things on the run, focused on risk-oriented practice compared to really good rapport and communication, which can then sometimes turn up things that might help manage risk if it comes up in conversation.
My emphasis would be workload and workforce pressures in England and Wales. That is not completely tied to the structuring; it is how you keep a probation and an unpaid work supervisory workforce that has the time for good practice. It is a challenge in Scotland as well.
Courtney Bryan: I would add one practical thing. A lot of our cases in New York submit an oral report to the court. It is not a written report. It depends on the type of case and the type of person. We are trying to use resources well. This is to your point, Hannah. If you need a written report because it is a serious case, then fine, but otherwise an oral update will do just fine. Maybe that is another thing to consider.
The Chair: We have also heard that standard written reports to a format are useful. I am not sure which way we go on that. Thank you very much for your evidence, all three of you.
