Written evidence from the Magistrates Association
About the Magistrates Association
The Magistrates Association is an independent charity and the membership body for the magistracy. We work to promote the sound administration of the law, including by providing guidance, training and support for our members, informing the public about the courts and the role of magistrates, producing and publishing research on key topics relevant to the magistracy, and contributing to the development and delivery of reforms to the courts and the broader justice system. With over 14,000 members across England and Wales, we are a unique source of information and insight and the only independent voice of the magistracy.
Q1: What are your views on the decision to end the competition for Probation Delivery Partners, and bring those service back into NPS delivery?
The MA welcomes the move to end the competition for Probation Delivery Partners and bring those elements back under the control of the National Probation Service (NPS). If properly funded, re-establishing a properly integrated probation service could increase sentencer confidence in two ways. Firstly, it would help to ensure that information presented to the court as part of a pre-sentence report includes all relevant details about available services, as well as the individual. Secondly, with offender management and supervision sitting within the same agency responsible for service provision, liaison and sharing of information can ensure robust offender management, supporting a reduction in re-offending as well as robust decisions relating to breach of community sentences.
Q2: How were private sector providers involved in the decision to end competition?
Q3: What are your views on the new model of probation?
The new model of probation is likely to bring various improvements to the delivery of probation services, including a single process and standardised services with a single clear structure for management oversight, simplified arrangements for probation staff providing advice to court and resettlement of offenders prior to and following release from prison. This should lead to greater sentencer confidence in the probation service’s ability to effectively oversee delivery of community orders, as well as provide up to date and reliable information in court.
The MA’s concern is that there must be ongoing support for community sentence treatment requirements (CSTRs) that offer offenders support for drug or alcohol problems and any mental health needs. There is strong evidence that targeting underlying, unmet, complex health needs can support offenders to turn their lives around, therefore reducing reoffending. It is not clear whether CSTRs will be directly commissioned by the NPS from local health partners, or whether there will be opportunities to commission services via the Dynamic Framework. We would welcome flexibility on the commissioning model, so that services that are provided by local, third sector organisations or charities can be made available as a part of a community sentence. One example of good practice is services for women which are provided through women’s centres, rather than the National Health Service (NHS), and it is important these services are not lost as options for sentencers.
We also recommend that to increase the use of community orders, especially as alternatives to custody, the NPS and outsourced providers should be required to publicise their success rates in terms of reoffending, with case examples and success stories. These could eventually be made publicly available, once suitably amended to ensure anonymity.
Q4: Does the new model address the issue of confidence in community sentence options?
Yes, we believe that some aspects of the new model will improve confidence in community sentence options for a number of reasons.
Firstly, the new model removes the separation between probation staff who are providing advice and information to courts and those actually carrying out the offender management and supervision role. This should ensure better communication and liaison between staff, which should ensure the advice and information provided to courts is up to date and detailed.
Secondly, most of the programmes which are offered as options for community sentences will not be provided by the NPS, or directly commissioned by them. The quality of those programmes will be ensured via robust inspection, but the removal of the payment by result element which was a necessity for the community rehabilitation companies (CRCs) will allow commissioning of services to be focused on the identified needs of offenders. The cohort of repeat offenders are the most challenging in terms of supporting them in the community to serve their sentence, while reducing re-offending, and it is vital that resources are adequately targeted towards provision of innovative services for this cohort.
Thirdly, inspection of all NPS services can be consistent and against national standards, which will not only assist the improvement of standards but can also be linked to confidence in the services.
Fourthly, the new structure will make probation more accountable to the courts
However, the MA notes that while the change of structure seems likely to have a positive impact on confidence in community sentence options, it is imperative that the new model is supported by adequate resources. Problems faced by the probation service currently, such as the high number of offenders per offender manager, will not be resolved simply by a change in structure, but require an increase in resources too.
Sentencer confidence additionally requires information about outcomes (feedback on numbers successfully completing requirements, reoffending rates etc.), information about what proposed requirements are intended to achieve (especially rehabilitation activity requirements (RARs)), and knowing appropriate and timely breach action will be taken. This could be achieved by the NPS and outsourced providers being required to publicise their success rates, as suggested previously.
Q5: The new model aims to strengthen integration between prisons and probation by integrating through-the-gate roles, processes and products with sentence management. What is your view on this? Do you anticipate any gaps/challenges?
Integrating roles and service provision in prison and probation is vitally important, especially for those released from prison. Successful resettlement involves thorough planning while an offender is still in prison, good communication between those supporting them in prison and those who will be supporting them in the community, and ensuring all the necessary services or support is in place prior to release. Safe and secure accommodation should be in place before an offender is released, and if that accommodation is in a temporary hostel, there should be planning in place for organising a longer-term solution. It is also vital that any benefits an offender is entitled to are received on release. Good communication and sharing of information about an offender is necessary to ensure that any treatment they are receiving in prison (including medication) is continued, and they are able to transfer any uncompleted programmes (especially education) to comparable programmes in the community.
There are some very successful examples of good practice where through the gate services are working well, with prisons linking up with CRCs and charities that are providing supportive services. It will be important not to lose current good practice and effective services.
One of the biggest challenges will continue to be successful resettlement and reintegration into the community where a prisoner has been held far from their home. If the new role of Responsible Officer is to be co-located with the prisoner, this may make planning for release easier in terms of liaising with the prisoner, but will mean the Responsible Officer will be reliant on local knowledge in the area where the prisoner is to be resettled in relation to issues like suitability of accommodation. This will require good communication with local probation staff. In addition, presumably on release the offender will have to be transferred to be supervised by a probation officer in their home area, and it is vital that all relevant information is passed on to this officer, and the transfer of responsibility is smooth. The first few weeks following release from prison can be the most challenging, and therefore prisoners should have face to face meetings with their probation officer as soon as possible following release, to ensure they have support in resolving any immediate problems.
It is also essential that the probation service has access to information relating to the treatments and programmes that the prisoner accessed while in prison, and any other information that will be relevant to their successful resettlement, such as any substance abuse issues or whether they are trying to gain access to their children.
Q6: What progress has been made in implementing the probation reforms in Wales?
The MA has heard from its Welsh members that the period of implementation has been positive and there have been no significant problems. We have heard reports of some extended lead times as a result of Covid-19, but not beyond what would be expected.
Q7: How will the National Probation Service ensure that it maintains the innovation and best practice achieved during the Transforming Rehabilitation Reforms?
We would like to make a general point that it is important to continue supporting CSTRs. We have previously expressed our support for CSTRs being available as an option for all sentencers across England and Wales, as they allow sentences to offer offenders support to address underlying health problems linked to offending behaviour. As a significant proportion of offenders seen by magistrates have multiple, complex needs, ensuring they are able to order any CSTRs that are necessary is vital, especially where there is a dual diagnosis and an offender requires support for a drug or alcohol problem as well as mental health needs.
We also reiterate the point that it is important to retain access to innovative services provided by small organisations, such as those specialising in women, housing for young adults etc.
We note that one advantage of the new model is that it should be easier for there to be national learning, as even though certain decision-making will be devolved to local Probation Delivery Units (PDUs), they will be part of the national NPS. It is therefore vital that the NPS ensures there are processes in place for good practice and experiences in local areas to be shared from one area to another. Hopefully this will ensure more national roll-out of successful innovations such as CSTRs. This should also lead to more consistency across the country, the lack of which has a problem under the current model.
Additionally, we emphasise the importance pre-sentence reports (PSRs) containing detailed information about what interventions are required, and what is possible in terms of multiple requirements and availability. This will ensure that sentencers are aware of the underlying needs that are linked to offending, what is needed to overcome them, and what is possible to achieve in a community sentence. It is also important that PSRs include reference to interventions that are not available, so sentencers gain a better awareness of the gaps in service provision. Giving sentencers a full list of options to choose from in PSRs would also be beneficial, as would more information on what is involved in particular community options, namely RARs.
Commissioning: Dynamic Framework
Q8: Does the new model offer a level playing field for small and specialist voluntary and third sector organisations in regard to the commissioning? Given the challenges in the previous model, how will a new national service secure input from smaller providers?
While it is not generally for us to comment on the commissioning of services, we have identified some possible challenges for small provider involvement:
- The process by which providers apply and are approved to be on the panel of providers is not clear and the level of bureaucracy involved may be a challenge for engagement with smaller providers.
- One of the intended aims of the new model is to provide a consistent framework with set standards that must be met by the NPS and their partners. These will include minimum provision for all community requirements, and while it is important that any standards ensure good quality services are available in all areas, requirements in relation to service providers complying with the agreed performance framework must be implemented in a way that does not pose an unsurmountable barrier to smaller providers. For example, advice and support in respect to administrative processes or software needed for data collection may be required for some of the smaller providers, especially where they rely heavily on voluntary staff to provide their service.
We note that another barrier for small providers under the CRC model was that they had to prove their financial viability for at least three years. If this is also a requirement under the new model, proving this viability may have been made even harder for small organisations as a result of Covid-19.
The flexibility that can be offered by PDUs commissioning specific service provision in response to identified needs is to be welcomed, and should ensure services can be targeted to offender cohorts and needs. It should also encourage innovation by local service providers. However, it does have to be acknowledged that in order to provide innovative services, small, third sector organisations or charities must be sustainable. This involves mid to long term financial planning, and therefore a clear understanding of likely funding by NPS for services providers will be necessary for many small scale providers to continue running.
Q9: What is the anticipated effect of procuring resettlement and rehabilitative services using a dynamic framework?
We have a few concerns relating to the procuring of resettlement and rehabilitative services using a dynamic framework:
It must be ensured that there is sufficient oversight of standards of service provision, to a set of nationally agreed standards. As explained above, expectations must not be unreasonable, but inspections must have some oversight to ensure quality of services, and that there is not a postcode lottery in respect of quality of service provision.
It is essential that specialist services for specific cohorts, such as for women offenders, or to address specific underlying needs, such as substance abuse problems, are available everywhere. We are aware that under the current model, CSTRs have not been consistently available across England and Wales, and concerns have also been raised over the availability of appropriate services for women offenders.
If utilising existing health services, consideration is needed as to how to overcome challenges in ensuring they fit within criminal justice frameworks in relation to timeliness. If relying on existing health services, there are often long waiting lists but offenders have to complete the programme within the timeframe of a court order or risk being breached. There is also a problem if they reoffend while waiting to be seen for necessary treatment.
If utilising services provided by third sector organisations or charities, then there can be complications relating to supervision and decisions to breach for non-attendance. Many service providers offer programmes on a voluntary basis, focusing on the therapeutic support that can be offered, and there can be concerns about requiring an individual to attend, or else face punishment. In order to not compromise the trusting relationship that these providers may have with their clients, it is important for the offender supervision element of a court order to be carried out by offender managers rather than staff at the service provider. It should be remembered that engagement with treatment requirements should be voluntary, and the success of these requirements would be likely to be compromised if offenders attended only to avoid punishment. The threat of breach can be linked to attendance at particular times and place, rather than engagement with the programmes themselves.
It should be noted that sentencer confidence in the robustness of a community sentence, especially where it is an alternative to custody relies on not just the service being provided, but assurance that the offender is monitored and breach proceedings will be brought if necessary. Where the NPS commission services delivered by external providers, it is important that they understand the court process, and how their service provision will fit in with a court order as part of a sentence.
Two potential benefits might be:
Q10: What progress has been made so far in the commissioning of services through the dynamic framework?
Q11: CRCs and NPS staff are being brought back together under the new model. How is this transition being managed?
Q12: CRCs currently use several different operating systems – how easy will it be to merge these into one model? Do you foresee any challenges?
Q13: What impact is the transition having on the voluntary/third sector organisations already providing probation services?
Q14: The Ministry of Justice made the decision to end the competition for Probation Delivery Partners and bring these services into the NPS. These services are to go live in June 2021; is there sufficient time to transition probation over to the new model?
The MA’s main concerns are that there is a smooth transfer from one model to another, with no loss of service provision or offender supervision. Specifically it is important that the following issues are addressed:
Q15: Does the new model address workload issues, e.g. high caseloads, recruitment/retention?
Q16: What progress has been made towards probation being recognised as a “skilled profession”?
Q17: What impact has Covid-19 had on the probation service?
The MA has heard from its members that the impact of Covid-19 on the probation service has varied across areas. In some areas, we have heard that probation service has adapted very well during the Covid-19 pandemic, with detailed information being provided to courts about what programmes are available, and good coverage in response to advice offered to courts through video-link where necessary but also increasingly in person. However, we have also heard that in other areas there has been trouble getting reports quickly, as well as problems with the quality of information about individuals presented to court, caused by the reliance on video-link to carry out interviews.
We have also heard from members that there has been a serious shortage of probation officers during the Covid-19 pandemic, as pre-existing staff shortages have been exacerbated with probation staff either shielding or having to self-isolate for health reasons.
Q18: What lessons have been learnt from this period of Exceptional Delivery, that should be taken forward into the new model of probation delivery?
The MA has heard from its members about the difficulties that have been experienced when conducting interviews remotely, and concerns over the quality of reports that are produced following remote interviews.
We add that while delays are understandable during such an unprecedented time, magistrates should be keep updated about the progress of orders made during the COVID-19 pandemic, and the timeline of progress that is expected.
Q19: Are there any other areas relating to the Probation Reform Programme that you would like to brief the Committee on, that are not already covered by the Terms of Reference above? (If yes, please provide information)