Written evidence submitted by JUSTICE (RAR0086)

Introduction

JUSTICE is a cross-party law reform and human rights organisation that is committed to strengthening the justice system – administrative, civil and criminal – in the United Kingdom.  In November 2024, the Justice Committee launched an inquiry entitled “Rehabilitation and Resettlement: ending the cycle of reoffending”.

This submission builds on our previous reports on prison and criminal justice reform.  Our recent work in the criminal justice sphere has included reports on improving administrative decision making in prisons, building a parole system fit for purpose, racial disproportionality in the youth justice system and the prosecution of sexual offences.[1]  In an upcoming report, due for publication early this year we focus on the probation service, including how it can be empowered to better support individuals subject to community-based sentence requirements or licence conditions.

Given the severe capacity pressures impacting prisons, there is now a real opportunity to take a new approach to the criminal justice system, including resettlement practice and rehabilitation which is sustainable, effective and serves to build safe and healthy communities.  Our response sets out a number of recommendations which are directed towards these aims.

Section 1: Reoffending – measuring the problem

1. Statistics on reoffending in England and Wales are primarily based on the commission of a proven reoffence.[2] A proven reoffence is any offence committed in a one-year follow-up period that results in a court conviction or caution in this time frame or a further six-month waiting period.[3] As of April 2016, proven reoffending is measured over a three-month cohort and annual figures are produced in relation to the financial year.[4] Further, adjusted proven reoffending rates are now produced alongside raw proven reoffending rates, using the Offender Group Reconviction Scale (the “OGRS4/G”).[5] The OGRS4/G uses age, gender and criminal history to assess the reoffending risk of a particular group by producing a score which can then be used to compare the relative likelihood of offending either over time or between different groups.[6] 
2. The data required for measuring proven reoffending is based on a range of sources, including prison data (e.g. Prison-NOMIS or LIDS and - for IPP sentenced individuals - information held by the Public Protection Unit Database), probation data (e.g. the nDelius system for recording the flow of offenders) and criminal records from the Police National Computer (the “PNC”).[7] The process of compiling proven reoffending data involves matching an individual’s details from the prison and probation data to the personal details recorded on the PNC.[8]
3. Metrics for proven reoffending include: the number of offenders, the number of proven reoffenders or proven reoffences, the average OGRS4/5 score, the average number of proven reoffences among reoffenders, and the proportion of proven offenders who committed a proven indictable reoffence.[9]
4. The proportion of all offenders who reoffend, also known as the proven reoffending rate, is at 26.4% for October-December 2022.[10] Young offenders, meaning individuals between 10-17, had the highest reoffending rate across all ethnic groups.[11] The proven reoffending rate has fluctuated between 24.7% and 31.8% since 2008.[12]
5. Definitions of reoffending, consistency in and methodologies for measuring reoffending vary across jurisdictions;[13] this makes it difficult to provide comparisons in levels of reoffending between countries. However, a six-year systematic review of two-year reconviction rates in 33 countries may provide a basis for limited comparison.[14] With a reconviction rate of 38.9% in individuals released from prison of 38.9%, England and Wales has a relatively high reoffending rate in comparison with other European countries:[15] the Netherlands, Austria, Denmark and Norway have reoffending rates of 24.6%, 24.3%, 32% and 17.6% respectively.[16]

Section 2: Rehabilitation in prisons

Question 8: What examples of best practice within the prison service are there in promoting rehabiltation?

6. JUSTICE invites the Committee to consider best practice from overseas jurisdictions and in particular ‘dynamic sentencing’, a practice highlighted by our 2022 report, A Parole System fit for purpose.[17] 
7. Dynamic sentencing is used within the French system and entails that sentences are varied according to an individual’s rehabilitative needs and their cooperation with the sentencing bodies; sentencing is seen more as an ongoing process than a one-off event.[18]  In France, the sentence imposed by the trial judge may simply be the starting point in determining the sentence that will be carried out.[19]  JUSTICE considers that the French model, whilst not problem free, could offer a useful comparison when considering improvements to our own system.  In France, each juge de l’application des peines will have a link to a prison in their geographical area and may be consulted about decisions concerning sentenced individuals.  Once an individual is released, the juge will follow their progress in the community, receiving reports from probation practitioners.[20]
8. The key difference between the English and French systems of sentence implementation is the dominant role given to the juge in France.  The benefits of greater judicial oversight in the progress of sentences include: (i) better decision making; and (ii) the vital role of the relationship between the sentenced individual and judge in delivering positive outcomes.[21]
9. JUSTICE considers that there should be regular opportunities for those serving custodial sentences to apply for ongoing consideration of their progress in custody, the conditions to which they are subject, as well its appropriateness where they are showing great rehabilitative promise.  In our view, greater judicial oversight in the progress of sentences would lead to better outcomes for many serving custodial sentences, as well as enhanced understanding of their experiences on the part of decision-makers.[22]
10. JUSTICE recommends that such oversight should come in the form of a Parole Tribunal, a reconstitution of the Parole Board within HMCTS, allowing for an appeal to be made to a dedicated chamber of the Upper Tier.  The Parole Tribunal should be furnished with case management powers and procedural rules.  We consider that the Mental Health Tribunal offers a helpful comparative model for the type of structure that we envisage for the new Parole Tribunal.[23]
11. Further, JUSTICE recommends that the Parole Tribunal should have oversight of an individual’s progress through prison, including of executive decisions upon which they depend for their chance to be released.[24]  This means that the Parole Tribunal would be able to intervene at an earlier stage in the individual’s sentence to hold public bodies accountable for their efforts at rehabilitating and preparing an individual for parole.  Further work would need to be undertaken to establish precisely what stage in a sentence that oversight should be triggered, as well as how it would be administered in practice.  Nevertheless, we consider that the principle of earlier involvement of the Parole Tribunal in the sentence management process would be desirable in ensuring individuals are given the best possible chance at rehabilitation.[25]
12. If the newly constituted Parole Tribunal were able to gain greater oversight throughout an individual’s sentence, it is more likely that they will be able to:

• Effectively evaluate whether licence conditions imposed on those who are automatically released meet the legal test of being reasonable, proportionate and necessary.  The opportunity to discuss proposed licence conditions in a judicial forum can require an individual to negotiate and ‘sign up’ to release conditions.[26]
• Help to engender a culture of accountability on the part of HMPPS, benefitting sentenced individuals who wish to make progress, whose call for greater access to the tools they need to succeed could be amplified by the Parole Tribunal.[27]

Section 3: Resettlement services and alternatives to custody

Question 9: To what extent does the Probation Service have the capacity to support effective resettlement pre and post release?

13. The Probation Service must be adequately supported, resourced and funded so as to enable it to provide effective resettlement to individuals pre and post release.  Despite this, there is evidence that the pressures on Probation Service capacity are a cause for real concern. Statistics obtained via a Freedom of Information request submitted by Channel 4 News suggest that the Probation Service was working at approximately 120% capacity between January 2023 and June 2024 (i.e. the full period covered by the data).[28]  A probation practitioner’s workload is deemed by the Probation Service to be ‘excessive’ if they are working at 110% capacity for four weeks in a row. The figures represent ‘snapshots’ pertaining to a single day at the beginning of each relevant month.  However, anecdotal evidence gathered by Channel 4 from NAPO (a trade union representing probation staff) indicates that this may well be an underestimate.[29]
14. Similarly, a 2023 report by HM Inspectorate of Probation[30] found that 57% of the probation practitioners interviewed described their workload as ‘not so’ or ‘not at all’ manageable[31] and concluded that current staffing and workload levels in the probation service “do not support the delivery of high-quality sentence management post-release.”[32]  The impact of this includes: “cases being allocated to [probation practitioners] at a late stage; delays in making referrals to accommodation providers which can hold up move-on from approved premises; and high workloads, which prevent practitioners from completing structured offence-focused work with people on probation to support their desistance and to keep other people safe.”[33] 
15. Whilst it is to be welcomed that the Lord Chancellor has committed to introducing at least 1,000 new trainee probation practitioners by March 2025,[34] it is vital that resourcing and funding is provided to allow existing staff the capacity to train new recruits.  Improving staff retention rates is also key to ensuring sufficient capacity as well as keeping valuable experience and knowledge within the Probation Service.  The HM Inspectorate of Probation Annual Report 2022/23[35] noted that the substantial increase in trainee probation officers who had joined in 2023 following a national HMPPS recruitment campaign had thus far had a limited impact on overall staffing levels.[36]    This was due in part to the number of staff leaving the Probation Service, which had “increased considerably”.[37] The Inspectorate also reported that the Probation Service was also losing its more experienced staff: 66% of the 359 probation officers who left the service in the year to March 2023 had five or more years’ experience in the job.[38] Absences due to sickness (over half of which were related to mental ill health) was identified as another factor adversely affecting staff workloads, although the average number of days of sick leave per person (12.7 days) represented a slight improvement on the previous year.[39]
16. JUSTICE echoes the recommendation made by the House of Lords Justice and Home Affairs Committee that: “Recent recruitment and training waves should be sustained until vacancies filled and the service effective.  Efforts should be targeted at those areas where recent recruitment waves have been less successful”.[40]  However, we also urge the Committee to encourage the government to take steps to improve retention rates and to ensure that the probation service is adequately resourced, supported and funded.  How this can be achieved most effectively is suitable for consideration in the independent review of the Probation Service which we understand to be imminent.

Question 11: How effective is support provided to ex-offenders on release such as homelessness prevention, employment opportunities and health and wellbeing services?

17. Many individuals are required to live at an Approved Premises (“AP”) as part of their risk management plan on release.[41]  Suitable accommodation is essential for an individual’s chance at rehabilitation.  Without a stable or fixed address, access to healthcare, work, or other vital sources of support becomes impossible.
18. JUSTICE’s 2022 report A Parole System fit for purpose highlighted a number of issues with APs. AP’s are, for example, heavily oversubscribed and places are spread unevenly across the country with locations often not matching need.[42]  They can be poorly staffed and apply inconsistent operating models.[43]  APs have also been criticised on the basis that, as an environment that groups together individuals who have committed certain types of offences (for example, sexual offences), they can make it more difficult for individuals to move past their ‘offender’ identities and progress with desistance.[44]  JUSTICE heard similar concerns voiced by those with lived experience of post-release probation supervision while compiling our upcoming report on the Probation Service.  Individuals we spoke to described feeling as though the environment of an AP could at times be detrimental to their rehabilitation, a problem which was particularly compounded when the AP was located far away from their families or other support networks.
19. It remains the case that an unacceptably high number of individuals are homeless upon release from prison.  Over 14% of individuals released in the year to March 2024 were homeless on the night following their release from custody.[45]  In the same year, only 73.5% of those released from custody were in settled accommodation (i.e. any accommodation that provides a permanent housing solution) at 3 months post release.[46]  This represents a decrease of 2.1 percentage points from the previous year, although outcomes vary by probation region.[47]
20. Higher rates of homelessness or rough sleeping exist amongst those in the 30-39 and 40-49 age groups, whereas there are higher rates of settled accommodation amongst prison leavers aged between 18-20 and 21-24.[48] 
21. Individuals released from short sentences experience significantly worse accommodation outcomes than those serving longer sentences: 76.1% of those released from a sentence of 6 months or less are housed on release from custody, compared to 97.2% of those serving sentences of 4 years or more.[49] 
22. Women are less likely than men to be in settled accommodation 3 months post-release, despite equal levels of accommodation between men and women immediately upon release[50].  As of 2024, there were nine women’s approved premises in England and none in Wales.[51] A 2024 HM Inspectorate of Probation and HM Inspectorate of Prisons joint inspection noted that, due to the geographical dispersal of women’s APs, women are often placed far from their home area.[52]  It concluded that women’s gender specific needs are not sufficiently supported through the current management structure, where women’s APs are in the minority.[53]  It also identified concerns with the accessibility of mental health services: AP managers often felt they did not have adequate specialist support to provide for women with high levels of need.[54]
23. Approved premises are only one piece of the housing jigsaw: our 2022 report noted that the provision of other types of accommodation is also poor, with a particular lack of accommodation for many of the most vulnerable prisoners, especially older prisoners and those with complex healthcare needs.[55]
24. We therefore reiterate the recommendation made in our 2022 report that:

• The Ministry of Justice should increase and improve the provision of housing and accommodation for individuals upon release from prison so as to guarantee that nobody is released homeless.  At the same time, the Ministry of Justice should review the provision of accommodation for particular categories of prisoners, such as women, older prisoners and those with complex health needs.

Question 12: What impact do licence recall conditions have on promoting resettlement?

25. Resettlement refers to the “process of preparing people in prison for their release back into the community and helping them to reduce their likelihood of reoffending.”[56]  The Target Operating Model for the Probation Service envisages the provision of pre-release activities for all sentenced individuals, as well as a focus on improving relationships between probation practitioners (or Community Offender Managers “COMs”) and individuals resettling into the community by starting contact at seven and a half months pre-release and providing a consistent contact for all pre and post release activities from this point.[57]
26. However, in preparing our upcoming report on the probation service, JUSTICE heard evidence from individuals with lived experience of resettlement and third sector professionals that there is some way to go before the aims of the TOM can be said to have been realised.  Licence conditions are frequently not explained adequately to those who are subject to them, and it is not uncommon for individuals to receive their licence conditions from their Prison Offender Manager just 24 hours before leaving custody, with no further explanation of the conditions by the Probation Service.  Similar issues were identified by HM Inspectorate of Probation in a 2023 inspection which found that: “There is the potential for much more to be done prior to release in terms of preparing prisoners for their return to society.  Several participants reported being made aware of their licence conditions only as they were leaving prison...”[58]
27. JUSTICE considered the impact of licence conditions on rehabilitation in our 2022 report A Parole System fit for purpose.[59]  By law, licence conditions must be reasonable, necessary and proportionate.[60]  However, it should be emphasised that licence conditions represent a significant deprivation of liberty and getting them right is essential, both in order to manage any risk that the prisoner may present, and to facilitate effective rehabilitation and reintegration into society.  A Prison Reform Trust survey focusing on IPP sentenced individuals found that almost half of the participants considered that their licence conditions were impractical and unnecessarily restrictive and, in fact, increased their risk of reoffending.[61]  Exclusion zones, for example, may create obstacles to stable employment and maintaining family ties, factors known to promote successful rehabilitation. 
28. Our 2022 report also highlighted concerns that a broad brush and indiscriminate approach can be taken by the Probation Service when requesting licence conditions, particularly where they have been requested through a MAPPA meeting.[62] 
29. JUSTICE therefore recommends as follows:

• The Ministry of Justice should make improvements to the resettlement process by:
• Introducing ‘co-production’ of licence conditions. This does not entail allowing individuals to set their own licence conditions, but rather ensures individuals are a participant in the process and have the opportunity to engage in a dialogue with probation practitioners.
• Ensuring that all individuals due for release have a dedicated meeting with their COM in which their licence conditions are discussed and explained to them thoroughly. Resettlement needs (such as housing, employment or healthcare) should be identified before individuals leave custody and steps taken to ensure that support is put in place before release.
• Developing an accessible, user-friendly and widely available guide to licence conditions and what compliance with them requires of individuals subject to them.  It should be available in a range of formats (such as large print and brail) and languages.
• The Probation Service should only be able to request that the Parole Tribunal (see paragraphs 10-11 above) impose licence conditions where it has demonstrated, with clear written explanations, (a) how they are reasonable and proportionate, and (b) their impact on an individual’s chances of successful rehabilitation.[63]

Question 13: What role should non-custodial sentences have in promoting rehabilitation?

30. Rehabilitation is one of the five key statutory purposes of sentencing and this aim should be furthered throughout sentence delivery.[64]  JUSTICE considers that there is scope to increase the rehabilitative impact of non-custodial sentences by:

(1)    Repealing subections 208(10) - (11) of the Sentencing Act 2020

31. Under these provisions, sentencers imposing a community order[65] must impose at least one requirement imposed for the purpose of punishment (or a fine) unless there are exceptional circumstances which would make it unjust.[66]  There are no comparable provisions which mandate that a requirement is imposed in order to further any of the other statutory purposes of sentencing.   The impact of section 208(10) is that the purpose of punishment is afforded overarching weight in the sentencing exercise: in most cases, a requirement aimed at punishment will form part of the sentence even where it will considerably undermine the the degree to which the other purposes of sentencing (including rehabilitation) are achieved.
32. In preparing our upcoming report on the probation service, JUSTICE heard evidence both from third sector professionals and those with lived experience of serving community-based sentences that curfews, for example, can be socially isolating and make it harder for an individual to maintain community ties or fulfil childcare responsibilities.  Unpaid work requirements can present barriers to obtaining sustainable employment or to recovery from drug or alcohol addiction.    In our view, the repeal of subsections 208(10)-(11) will allow courts to strike a more even balance between punishment, rehabilitation and the other purposes of sentencing when imposing community orders.

(2)    Increasing the proportion of an unpaid work requirement that can be dedicated to Education, Training and Employment (“ETE”) activities.

33. Currently, individuals are permiitted to use 30% of their unpaid work requirement for ETE actitivies.[67] Through increasing this proportion, unpaid work requirements can better support individuals in gaining and maintaining sustainable employment, thereby improving the rehabilitative value of community based sentences.

For more information please contact:

Tyrone Steele, Deputy Legal Director, JUSTICE – tsteele@justice.org.uk

Annie Fendrich, Criminal Justice Lawyer, JUSTICE – afendrich@justice.org.uk

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