Conservative Government Penal Policy 2015-2021: Austerity, Outsourcing and Punishment Redux? 3031007964, 9783031007965

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Conservative Government Penal Policy 2015–2021 Austerity, Outsourcing and Punishment Redux? Christopher David Skinns

Conservative Government Penal Policy 2015–2021

Christopher David Skinns

Conservative Government Penal Policy 2015–2021 Austerity, Outsourcing and Punishment Redux?

Christopher David Skinns Kendal, UK

ISBN 978-3-031-00796-5    ISBN 978-3-031-00797-2 (eBook) https://doi.org/10.1007/978-3-031-00797-2 © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2022 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

This book is about the gap between what is and what could be and I hope it benefits all, including my grandchildren Cato, Emile, Zena, Selda and Iris.

Acknowledgements

The onerous and lengthy task of writing a book means that many debts have been incurred along the way. I wish to express my thanks to my wife Laura for the sacrifices inevitably involved and acknowledge the extremely helpful comments and support about different aspects of the work from Robert Skelton, and Laura, Jessica, Layla and Marsha Skinns. However, finishing this work would not have been possible without the tranquillity of the rolling green fields of South Lakeland and the nourishing silence of the Lake District and Scottish mountains.

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Contents

1 Introduction  1 2 Critique  5 3 Courts and Sentencing 37 4 Prisons107 5 Probation209 6 Bias and Discrimination in the Penal System259 7 The Pandemic and the Penal System297 8 Why Has the Penal Crisis Been Exacerbated by Recent Government Policy?391

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9 What Is to Be Done?435 10 Conclusion457 Index463

List of Tables

Table 3.1

Table 3.2 Table 3.3 Table 3.4 Table 3.5 Table 3.6

Table 3.7

HM Courts Service (HMCS)/HM Courts and Tribunals Service (HMCTS) and the Legal Services Commission (LSC)/Legal Aid Agency (LAA): workload, expenditure, staffing, premises and aspects of the direct experience of users, in England and Wales 2009/2010, 2014/2015, 2019/2020 and 2020/2021 44 The percentage of convicted offenders sentenced by type of offender and disposal in England and Wales 2009/2010, 2014/2015, 2019/2020 and 2020/2021 65 The average judge-imposed tariff imposed on offenders convicted of murder, in England and Wales, 2005–2016 67 The prison population in England and Wales, in the 12 months to 31 March 2012, 2015, 2016, 2020 and 2021 68 Prison first receptions of all sentenced prisoners in England and Wales, in the 12 months to 31 March 2012, 2016, 2020 and 2021 71 The total value of financial impositions made by the criminal courts by method and the total outstanding financial imposition debt, in England and Wales 2009/2010, 2014/2015, 2019/2020 and 2020/2021 80 Summary of the internal and external critique of the Conservative governments’ courts and sentencing policies 2015–202081 xi

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List of Tables

Table 3.8

Public confidence in the criminal justice system in England and Wales 2009/2010, 2014/2015, 2017/2018, 2018 and 2020 Table 3.9 The views of civil servants of the procedural justice of their organisation, in England and Wales 2010, 2015 and 2020 Table 4.1 Prison places lost due to the ‘new for old’ policy in England and Wales 2015–2019 Table 4.2 The impact of the prison estate transformation programme 2015–2020 and the later Johnson prison programme to the ‘mid-2020s’ Table 4.3 National Offender Management Service/HM Prisons and Probation Service: workload, staffing, premises and aspects of the direct user experience, in England and Wales, 2009/10, 2014/15, 2019/20 and 2020/21 Table 4.4 Licence recalls to prison in England and Wales in the 12 months ending 31 March 2012, 2015, 2016, 2020 and 2021 Table 4.5 Safety in custody statistics in England and Wales 2010, 2015, 2020 and 2021 Table 4.6 The findings of Ofsted inspections of education and HMIP inspections of purposeful activity for male prisons in England 2014/15–2020/21 Table 4.7 The Prisoner Learner Alliance (PLA) assessment of the MOJ implementation of the Coates Report recommendations by spring 2019 Table 4.8 ‘Finds’ in prisons in England and Wales, in the 12 months to 31 March 2017, 2018, 2019, 2020 and 2021 Table 4.9 HMP Nottingham: a decade of turbulence, 2010–2020 Table 4.10 Summary of internal and external critique of Conservative governments’ prison policies 2015–2020 Table 4.11 The percentage of prisons for men inspected by HMIP receiving ‘good’ and reasonably good’ assessments for the four tests of healthy prisons, comparing scores for all prisons inspected 2010/11 to 2019/20 with the scores awarded to ‘pre-pandemic’ (2017–2019) and ‘recovery’ (May–September 2021) samples

90 93 110 111

120 125 132 136 142 146 162 167

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  List of Tables 

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Table 4.12 The percentage of prisons for women inspected by HMIP receiving ‘good’ and reasonably good’ assessments for the four tests of healthy prisons, comparing scores for all prisons inspected 2010/11 to 2019/20 with the scores awarded to those prisons inspected in the pre-pandemic (2017–2019) and recovery (May to September 2021) samples178 Table 4.13 Prisoners’ views on whether they were being treated in a procedurally fair way 2010/11, 2014/15, 2019/20 and 2020/21183 Table 4.14 Prison adjudications in England and Wales, in the 12 months ending 31 March 2011, 2015, 2016, 2019 and 2020 191 Table 5.1 Summary of the internal and external critique of the Conservative governments’ probation policies 2015–2020 244 Table 6.1 Social background of prisoners compared with the general population of England and Wales 270 Table 7.1 Provisional deaths ‘involving’ COVID-19 in England and Wales January 2020 to August 2021 300 Table 7.2 Provisional deaths ‘related to COVID-19’ of HMPPS service users, in England and Wales, March 2020–July 2021 337 Table 7.3 The prison and remand prison population, in England and Wales, by month March 2019 to July 2021 339 Table 8.1 Police-recorded crimes in England and Wales, 2014/2015 to 2020/2021 417 Table 8.2 The number of incidents reported to the Crime Survey for England and Wales (CSEW) 2014/2015 to 2020/2021 419

1 Introduction

Introduction In 2016, I concluded that Coalition government penal policy had often been unsuccessful in its own terms, had pursued a penal policy package based on austerity, outsourcing and punishment (A-O-P) and had thereby exacerbated the penal crisis (Skinns 2016). My intention in this book, more in hope than expectation, is to establish whether things had changed for the better, after more than five years, and if not, explain why. What follows is a factual and critical account of the key penal policies of the 2015–2021 period. Penal policies are assessed here in two ways. The internal critique considers whether the policies were successful in their own terms, that is, congruent with Conservative penal philosophy and aims, successfully implemented and productive of the expected impact. The external critique considers the extent to which the policies assuaged the penal crisis by mitigating material resource scarcity, contributing to procedural justice (by improving the quality of decision-making, the treatment of offenders and developing rehabilitation and resettlement), decreasing the fixation with the prison, improving the accountability of the penal system, reforming the process of penal policy-making and overall making the penal system more just. Factual correctness does

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 C. D. Skinns, Conservative Government Penal Policy 2015–2021, https://doi.org/10.1007/978-3-031-00797-2_1

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not mean, however, that I have set out without a clear understanding of the social world in which these events have played out. On the contrary my account is informed by a conceptual analysis of the penal crisis (as set out in Chap. 2) and the location of crime and control in the political economy of late modern neo-proprietarian societies (as set out in Chap. 8). What I have found, as evidenced extensively with regard to the main areas of penal policy, affecting courts and sentencing (Chap. 3), prisons (Chap. 4) and probation (Chap. 5), efforts to reduce bias and discrimination in the penal system (Chap. 6) and manage the penal system during the new coronavirus pandemic (Chap. 7), is profoundly disturbing. As with the previous Coalition government, successive Conservative administrations have frequently failed to achieve success in their own terms, often at great public expense. Even more disturbingly, the successive Conservative governments have engaged in a further move towards austerity, outsourcing and punishment and thus contributed to the exacerbation of the penal crisis. Such intransigence begs to be explained, and I do this in Chap. 8, by connecting the A-O-P penal policy package, favoured by successive Conservative governments, to the neo-liberal ideology used to justify the now dominant neo-proprietarian inequality regime. I conclude that there is an urgent need for the penal system and penal policy-making to be reformed. The directions this should take are set out in Chap. 9 and follow Nietzsche, when he wrote ‘Distrust all in whom the impulse to punish is powerful’ (Nietzsche 2003: 124). I interpret this to mean that how we treat convicted offenders marks the degree of our common humanity, a feature in short supply in a political economy based on egoistic individualism, the competitive pursuit of ever-elusive, monetarily defined goals, growing inequality, injustice and exclusion, growing outrage connected to the defence of quasi-sacred private property and compassion for victims and offenders being treated as a ‘zero sum game’ (Piketty 2020: 123; Reiner 2021: 140). Readers should note that my comments throughout the book apply to Conservative government penal policy, from the beginning of the first (Cameron) Conservative government in early May 2015 to the data end-­ point for the study, the summer of 2021. Policy and other documents

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published up to the end of December 2021 are used to critically examine this period. My comments only address government policy for England and Wales and concern adult and young adult offenders only. Penal policy is understood to include the organisation and operation of courts (when sentencing convicted offenders), prisons and ‘probation’. Probation includes pre- and post-release supervision of prisoners and the organisation and operation of the community and suspended sentence order requirements. Although I acknowledge the importance in the criminal process of crime prevention and of prosecutorial processes upstream of the penal system, my focus here is specifically on penal policies. References to the new coronavirus in this book relate to the virus identified in China in January 2020, later named SARS-CoV-2 and found to cause the disease, COVID-19 (see Chap. 7 for details).

References1,2 Nietzsche, F (2003) Thus Spoke Zarathustra, Translated with an Introduction by R J Hollingdale, London: Penguin Classics. Piketty, T (2020) Capital and Ideology, Cambridge: Belknap Press. Reiner, R (2021) Social Democratic Criminology, Abingdon: Routledge. Skinns, D (2016) Coalition Penal Policy 2010–2015: Austerity, Outsourcing and Punishment, London: Palgrave Macmillan.

 References to academic books and articles are by year of publication. Policy and other official documents, because of their multitudinous character from the same source, sometimes even within one month as well as one year, are where possible referenced by giving the precise date of publication in UK format (day/month/year). 2  To avoid repetition references to works used to construct the tables are only provided in the chapter where the table is first used. 1

2 Critique

Introduction The foundations of the internal and external critique of penal policy in the 2015–2021 period offered in Chaps. 3, 4, 5, 6 and 7 are established in this chapter. To assess how well government did in their own terms requires us to understand the aims-defining ‘penal philosophy’ adopted by successive Conservative governments. An external critique requires an interrogation of the concept of ‘penal crisis’.

 he ‘Penal Philosophy’ of the Conservative T Governments in the 2015–2021 Period The penal philosophy of the successive Conservative governments in the 2015–2021 period was framed in the context of the continuing issues arising from the global financial crash of 2008, the immediate extensive turbulence focused around the issue of Brexit in the UK, the struggles within the Conservative Party and the wider right-wing movement to enforce a Taliban-like neo-liberal orthodoxy and, later, the global exceptional moment created by the new coronavirus pandemic.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 C. D. Skinns, Conservative Government Penal Policy 2015–2021, https://doi.org/10.1007/978-3-031-00797-2_2

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I use the term penal philosophy to denote not some fundamentally worked through and highly intellectualised perspective as found in the different schools of criminology but a guide to action, a work in progress, for active politicians. A penal philosophy contains fundamental ideas about the nature of offenders and offending, the relative importance of offenders, victims and the public, the orientation of the public to crime, the role of government when dealing with offenders and the aims and purpose of penal policy. Why do people offend? Conservative penal philosophy offers a simple answer—most offenders make ‘bad choices’. They do so because they lack the moral restraint and boundaries that the law-abiding majority possess. Why is this? Because they are ‘morally deprived’, that is to say, they lack the resources to be virtuous, to avoid doing ‘the wrong but convenient thing’, and they have a ‘propensity to lie’, and do not possess ‘the determination to be honest’, have a tendency to ‘cut moral corners’ and have the inclination ‘to seize rather than serve’. Such problems cut across class and other social boundaries, but offenders possess these qualities disproportionately (Gove 17/07/2015). The overarching explanation given is not material, but moral, not social, but individual—only individual offenders are morally deprived, and this moral deprivation results from a lack of ‘structure and stability’ in childhood and ‘poor parenting’, all, in turn, the result of the bad choices made by their parents (Gove 17/07/2015). But bad choices are made, for which only the individual bears responsibility and explanations referencing anything other than family process and particularly social explanations relating to inequality, exclusion and injustice are ruled off the agenda and are inconsistent with the particular form of individualism at the heart of much Conservative Party thinking, as expressed by Margaret Thatcher, ‘there is no such thing as society. There are individual men and women, and there are families’ (Thatcher 31/10/1987). To suggest otherwise is to question the very social inequality on which the broader ideas of this political philosophy rest, particularly the semi-sacred nature of private property, and invokes the hazard of opening Pandora’s Box and risking anarchy, chaos and the void. Given that, in this view, a significant but unknown number of citizens are morally deprived and therefore willing to break the criminal law,

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which is seen to protect all, crime is seen to be the primary, even the number one problem of modern life about which we should all be continually concerned and for which there needs to be an on-going, effective, pervasive and harsh response to maintain internal order as well as to keep criminal ‘others’ out of the society and the country. Conservative administrations of the 2015–2021 period were very clear on this aspect of internal order maintenance—the aim was to ensure that ‘your local community is a safe place’ (Conservative Party General Election Manifesto April 2015: 58), to build on improvements in public safety (Conservative Party General Election Manifesto May 2017: 4) and to ‘Make our country safer’ (Conservative Party General Election Manifesto November 2019: 17; UK Government July 2021). Increasing emphasis is also placed on, in the light of somewhat reluctant but growing official recognition of fraud and computer-related crime, the  need to make our ‘screens’ safer too. Throughout, there is the assumption that a harsh response to crime, using the criminal justice system in general and the penal system in particular, will work. However, some variation is evident in how to deal with the issues geared to differences in crime patterns and notions of popular appeal, with crime rates, seen as ambiguously falling in the General Election manifestos of 2015 and 2017 and thus a matter of self-­ congratulation, but in 2019, ambiguously rising, although not seen as the grounds for apology. This implies some differentiation between governments in the two periods, 2015–2019 and after July 2019, in policies concerning criminal justice agencies. The first three Conservative governments remained largely austerity (which I will refer to as type 1) or neo-­ austerity (which I will refer to as type 2) based, that is, they either explicitly espoused the need to continue the austerity project of the Coalition itself (the Cameron Conservative ministry 2015–2016) or saw the need for the UK to be ‘match-fit’ for Brexit and espoused neo-­austerity (the two May ministries, 2016–2019). This constrained their policy options and dictated, for example, with regard to the police, that manifesto pledges were confined to limited infrastructural change. For the May ministries, these pledges also carried a strong undercurrent of the previous conflicts between the police and the then Home Secretary who became Prime Minister, on matters such as stop and search and the

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policing of domestic violence. It also greatly constrained their plans about and actual impact on the provision of new prison places to 2019 (see Chap. 4). It did not, however, constrain their attempts to limit public spending in other ways, and the roll out of Universal Credit continued, despite the clear problems it faced, nor did it limit their attempts to discipline society by means of creating a hostile environment either with regard to income maintenance vis-a-vis Universal Credit or concerning supposed illegal immigrants, with the added advantage of being seen to defend nation state borders. The two Johnson administrations, possibly because of the forces set in motion by Brexit, particularly the move to identitarian populism and the perceived need for systematic defence of all ‘borders’, and Johnson’s self-­ identification with a muscular response to the issue, have been apparently  less and less constrained by concerns about austerity and have consequently expressed a heightened tendency to strengthen, to use Piketty’s term here, both internal and external regalian functions, whilst not letting go of other forms of social disciplining. Piketty defines regalian powers as ‘the powers of security, justice and legitimate use of violence’ (2020: 1044). Internal regalian functions were to be strengthened by ‘putting 20,000 more police officers on the streets’ and equipping them with ‘the powers (more use of stop and search is specifically mentioned) and the tools (greater dissemination of Tasers for example) they need’. Furthermore, they offered no implied criticism of how the police handle either stop and search or assault in the home (Conservative General Election Manifesto November 2019: 2 and 7). Indeed, early on in the term of office of the first Johnson government, both the Prime Minister and the new Home Secretary suggested that they wanted to return to ‘traditional Conservative’ concerns, namely, ‘law and order’, and the Home Secretary expressed a wish to ‘empower [the police] to stop criminality’ with the focus being for criminals to ‘literally feel terror at the thought of committing an offence’ (Patel quoted by Gayle 03/08/2019). Indeed, the then new Home Secretary expressed clear and explicit support for the death penalty as a deterrent for a number of serious crimes when she appeared on ‘Question Time’ (Patel 25/09/2011). This seems to suggest a new old direction— which is apparently less monetarist on economic policy and more conservative on social issues. Internal regalian powers were also to be increased

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by expanding the number of new prison places (by 10,000 by 2020 and then 18,000 and then 20,000 by the ‘mid-2020s’; see Chaps. 4 and 7). It was also announced in November 2020 that, in addition, external regalian functions were to be strengthened by greatly increasing the defence budget (Sabbaugh and Butler 18/11/2020). But what is the specific role of the penal system in England and Wales? It is twofold. Firstly, public protection has absolute priority and can be achieved by punishing offenders. This policy is victim and public, as opposed to offender, orientated, and, based on exclusion, incapacitation and, to a lesser extent, individual and general deterrence. It posits a zero sum choice between taking the side of ‘deserving’ victims and the public and taking the side of ‘less deserving’ offenders. The key task is seen to be to protect the public, to ‘isolate the dangerous’, in ‘appropriate’ ways (Gove 17/07/2015). It ‘foregrounds the victim’ and the innocent public (Reiner 2016: 147). Isolation of the dangerous is more likely to be in prison, but for less serious offenders by means of ‘tough’ community sentences that rely on curfews, tagging and surveillance. A policy of this kind tends to contribute not just to an expansion of the prison estate, but also to extending the notion of detention to private (privatised?) settings, that is, offenders’ homes. This is a policy that Bottoms (1977, 1980) described as ‘bifurcation’, that is a policy of harsher treatment for all, but with an absolute divide between the serious minority (who are to be imprisoned for longer) and the less serious majority of offenders (who can be detained at home for increasingly lengthy periods), thereby justifying cheaper penalties for the less serious offenders. Some variation in view between early (2015–2019) and later (2019–2021) governments is evident here, with the earlier governments belatedly coming to a perception which placed greater emphasis on limiting prison use, at least for short sentences and the need to make greater use of toughened community sentences, particularly stressing home detention and continual incapacitation through surveillance, and the Johnson governments playing up the need for longer prison sentences for serious offenders, reduced early release, the retention of short prison sentences and extending the use of whole life orders for child killers, alongside the extension of home detention (see Chaps. 3 and 5 for details).

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For different reasons, both early and later Conservative governments were in favour of a radical overhaul of community sentences, the former to act as substitutes for imprisonment and the latter to complement growing imprisonment rates, to make them more credible which seemed to mean more incapacitating, ‘smarter’ and tougher. This, it was suggested, could be accomplished by using new technologies addressed to old problems. For example, older forms of tagging meant that staff knew when the offender left the designated place during curfew, but not their new, illicit, location. The use of Global Positioning Systems with tags potentially enabled current, illicit location to be determined. Similarly, merely exhorting people to drink less alcohol could be made ‘smarter’ by the use of sobriety tags which are capable of detecting if alcohol has been consumed by the wearer. It also meant making more use of tagging generally, as well as extending the curfew restrictions that can be imposed. David Gauke, associated in July 2019 with a tragically ineffective attempt to persuade the incoming Johnson administration to restrict the courts’ use of short prison sentences, went the furthest on this by suggesting that the restriction of the use of the prison would only be possible if community sentences were made ‘smart’, that is, more ‘intensive and restrictive’, adding to existing curtailments of civil freedom—by means of home curfews and drug, alcohol and foreign travel bans—with, for example, people who have committed fraud being made the subject of intensive supervision based on a restriction of their expenditure and a monitoring of their earnings (MOJ 18/02/2019a; MOJ 18/07/2019b; see also Chaps. 3 and 5). A further strand of the same kind of exclusionary thought, found in abundance in all the Conservative Party General Election Manifestos (April 2015, May 2017 and November 2019), was that some significant part of offending in the UK (or any nation state) was attributable to foreign national offenders, and such offenders ideally must be kept out altogether. In addition, if foreign nationals living in the UK committed ‘serious’ crime, then changes needed to be made to render them easier to deport. Such an agenda links in very closely with the opposition to EU membership on the basis of ‘our hands are tied’ argument, blaming the EU for stopping the UK government in the exercise of its powers to defend internal security and external borders. It has to be noted that essential ambiguity surrounds the key terms here, ‘foreign nationals’ and

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‘serious crimes’. The Windrush scandal, whereby some black British people, who had an absolute, if variably documented, right to British citizenship and residence, were denied their citizenship rights when they were treated as if they were foreign nationals and prevented from working and receiving income maintenance payments and either deported or prevented from re-entering the UK, and in some cases treated as foreign national offenders, clearly raises questions about not only the notion of foreignness, but also the notion of ‘serious’ crime (Gentleman 2019). The deportation of 17 convicted offenders to Jamaica in early February 2020 (BBC News 06/02/2020; Taylor 10/02/2020a and 11/02/2020b) underlined the significant questions concerning the construction of both foreignness and offence seriousness, as some of the threatened deportees had very limited connections with Jamaica, having lived in the UK for most of their lives and at least some of the proposed deportees had been convicted of offences of intermediate seriousness and may not have served the kind of prison sentences (of 12 months or more) normally required to justify deportation by Section 32 (1) (a), (b) and (c) (2) of the UK Borders Act 2007. This affair was particularly troubling as the deportations were undertaken before the results of the inquiry into the Windrush scandal were published and preparations for the deportations proceeded despite warnings from the Windrush inquiry panel members (Gayle et al. 07/02/2020). A further troubling aspect was that the deportations originally included some 25 people who had been, in effect, held in detention with no facility to obtain legal advice, given that the 02 mobile phone network did not operate in the place of detention and no alternative working mobile devices had been provided. However, the actual deportations apparently did comply with the specific directions from a Court of Appeal Judge that individuals should not be deported if they had been unable to access legal advice from their place of detention (Telegraph Reporters 11/02/2020). The second role of the penal system is to ensure that, since most offenders sent to prison or placed in home detention within the community will be released or have the community restrictions lifted at some point, the probability of them reoffending is reduced. This entails providing ‘a second chance’ for some, but not necessarily all, offenders (Conservative Party General Election Manifesto November 2019). Some variability of

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opinion is evident here ranging from those who suggest that nearly all should be given a second chance to those who suggest that nearly all, especially repeat offenders, need lengthy (and lengthier) restrictions imposed on them. Clearly, in this policy of bifurcation, a second chance does not apply if you are deemed doubly ‘other’ by being criminal and ‘foreign’. A ‘second chance’ is understood to mean providing offenders with the opportunity to make the right choices, in order to better protect the community. The prime beneficiary and indeed the central consideration is not the offender but the law-abiding majority. The process is best grasped as moral reform (‘redemption’), with the specific social value of reduced reoffending and as such constructs the undeserving offender as secondary to the perceived needs and interests of the deserving ‘community’. There is a parallel here—the interests of the community so outweigh those of the offender that it is unlikely in any practical, especially austerity-defined circumstance, that the interests of the offender will receive much attention at all—in much the same way that the Labour governments between 1997 and 2010 were apparently intent on being ‘tough on crime and the causes of crime’ but gave priority to the first part of the phrase, ‘tough on crime’, and rarely got round to dealing with the second part, ‘tough on the causes of crime’. How can ‘second chances’ be provided? Penal sanctions need to provide the missing structure in the lives of offenders through setting clear moral boundaries and providing stability. Courts need to dispense timely justice. Prisons must be ‘calm, orderly, purposeful places, where offenders can learn the self-discipline, the skills and the habits which will prepare them for life’ (Gove 17/07/2015). In this sense, then prisons hold out the hope of ‘reform … and redemption’ (ibid.) because they are ‘schools of industry and virtue’ (MOJ 03/11/2016c: 3). Probation needs to provide stable conditions in which offenders can learn to be law-abiding citizens. There is some variation of opinion here in terms of the extent to which offenders can gain redemption and how much this should be prioritised with Michael Gove (Minister of Justice 2015–16), for example, apparently placing greater emphasis and priority, on the more optimistic view, and Johnson/Buckland/Patel representing the more pessimistic view and being concerned with how much the criminal justice system in general,

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and the penal system in particular, is ‘cock-eyed’ and ‘crook-coddling’ (Johnson 19/05/2019). Community sentences are also seen as providing structure, but this is secondary to the need to protect the community from the immediate threat of offenders at large and the emphasis is more on methods of containment consistent with this apparent freedom. Finally, so far we have noted that Conservative penal philosophy holds that offenders are morally deprived predators and there is a simple need to defend ourselves from them. Such defence is seen to entail imposing harsh incapacitating sanctions on convicted offenders and requires an effective criminal justice system. It needs an investigative process and prosecutorial system capable of apprehending suspects and convicting the guilty, in a timely, just and effective manner. It requires an adequately provided for and decent penal system, with courts able to deliver timely and appropriate sentencing in a just process in sufficient and well provided for courts and sufficient and adequate, prison accommodation to achieve the incapacitating and ‘second chance’ functions allocated to prisons by this philosophy. Prisons should be secure, safe, supportive (offering assistance with drug and mental health problems and breaking offending behaviour patterns) and ‘calm, orderly, purposeful places, where offenders can learn the self-discipline, the skills and the habits which will prepare them for life’ (Gove 17/07/2015). Similarly, ‘probation’ should be capable of delivering effective supervision, as well as opportunities for a second chance by offering assistance with drug and mental health problems, courses to encourage desistance from crime and various redemptive activities, like unpaid work. However, it has long been recognised, even by government, that all was not well with the penal system—crime was still seen as ‘public enemy number one’, and crime rates, at least in the most recent Conservative Party General Election Manifesto, were seen to be ambiguously rising, despite increasing punitiveness and high imprisonment rates. What was going wrong? Two main reactions are apparent in Conservative thinking: denial and recognition. Each has two variants. Denial may be total. But it may also be nuanced: a standard strategy for any new government is to attribute the issue to the previous government’s defective policies whilst declaring that the present administration is, bravely, tackling the issue. By 2015, it was no longer plausible to blame Labour government policies

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because they largely reflected the same ‘law ‘n’ order’ consensus and had not been in power since 2010 and the preceding Coalition government had been Conservative-dominated. Recognition also takes two forms. The issue may be seen as a chance event or act of God. Amber Rudd, Home Secretary 2015–2018, presented the Windrush failures as somehow not down to May’s hostile environment policy and her own fanatical implementation of this policy but simply a chance event or an act of God (Gentleman 2019). Alternatively the issue may be seen as due to a series of causal processes, unfortunately outside of the control of government, in what Cavadino et al. (2013: 10) refer to as ‘the orthodox account’. This orientation to penal issues takes the form of listing causal factors—for example, with regard to prisons, high prison populations and overcrowding, poor conditions and understaffing, but to deal with these factors as causal and, of course, to individualise the issue, isolating the matter to the actions of aberrant individuals or the actions of inefficient prison or probation management. Such accounts offer a purely mechanical view, which denies the intent or agenda of those who engage in problematic conduct and tends to turn what is a system-wide issue into an individual problem associated with aberrant individual prisoners and/or prison management. Rudd also offered such an explanation of the Windrush scandal attributing it to the aberrant actions of her Department officials (Gentleman 2019). The problem with treating penal system problems as exclusively mechanically caused is that, as far as prisons are concerned it fails to ‘square with the facts about prison riots’ (Cavadino et al. 2013: 20), the greatest overcrowding and so on did not produce the highest level of unrest. It also offers, ironically given the overall view based as it is on choice and individual responsibility, a mechanistic explanation which reduces prisoner behaviour to mindlessness and ignores the social meanings and indeed political agenda of such actions and the social meanings of staff. The second problem is individualisation. Cavadino et al. (2013) note the official tendency to recognise that there are problems in prisons but to ignore similar issues in the courts and probation. Individualisation goes much further than this though and links with the tendency to ascribe problems to the behaviour of middle-level officials. In this view, there is no penal crisis but only the problems of individual parts of the penal

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system, even individual prisons. This, in turn, results from a toxic mix of morally deficient, serious-offending prisoners, an ‘unexpected’ increase in the use of psychoactive drugs by some prisoners, the ‘unanticipated’ malign influence of gang culture to both supply such drugs, as well as stimulate conflict between prisoners, the specific physical inadequacies of the Victorian prison estate, staff using outdated procedures and processes and a defective management able to continue to exist only because not subject to appropriate accountability through a version of ‘Ofsted and league tables’ (MOJ 03/11/2016b: 5). The tendency to insist on a toxic mix of individual causes giving rise to acute but not chronic issues probably accounts for two of the prison follies of the 2015–2021 period. One, the ‘reform prisons project’ operated between 2016 and 2018 was attributable to Michael Gove, the then Minister of Justice, and almost certainly a reprise of his actions in education during the Coalition. This project reduced the deepening problems of prisons to the completely un-evidenced assertion that the lack of independence of prison governors was the major cause and the solution was giving prison governors greater autonomy, subject, of course, to accountability through league tables (see MOJ 18/05/2016a and 23/02/2017). The project ignominiously fizzled out after, probably, a year or at best two years, after spending in excess of £6m and with little or no systematic evaluation or known impact (House of Commons Justice Select Committee 03/04/2017 and 31/10/2019), leaving a residue favouring the notion that increasing governor ‘independence’ can be understood as the solution to the penal crisis with or without league tables. The second example, attributable to Rory Stewart, the then Prisons and Probation Minister, was referred to as the ‘10-prisons project’ and operated between 2018 and 2019 (MOJ 20/08/2018). This project again placed an emphasis on prison management as the solution to the difficulties of prisons had a budget of £10m but fizzled out one year later, after an unconvincing evaluation, with very little known about the actual impact (MOJ 22/08/2019d and 22/08/2019e;  House of Commons Justice Select Committee 31/10/2019). A final aspect of more general Conservative policy needs to be considered here, namely, austerity. Austerity type 1 became the key, controlling and commanding policy, the leitmotif, of the Coalition government

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between 2010 and 2015 (see HM Treasury October 2010 and SR10) and the first Conservative administration 2015–2016 (HM Treasury 27/11/2015 and SR15), based on the perceived need to engage in belt tightening because of supposed Labour government profligacy. Austerity type 2, favoured by the second and third Conservative administrations 2017–2019, did not let go entirely of the notion that austerity was justified by previous Labour government failings, but increasingly added an important new justification, as Philip Hammond, the then Chancellor, put it, to be ‘match-fit for Brexit’ (Hammond quoted by Cooper 20/11/2016). For all austerity meant very significant cuts in public expenditure with targets being set by the HM Treasury for all departments to achieve, including the MOJ. The consequence for courts, prisons and probation was much greater resource scarcity. It is notable that both types of austerity programme were combined with a drive to ‘modernise’ the penal system, also carried over from the Coalition government, although, perhaps, this became a more important theme during the 2017–2021 period. Modernisation allowed austerity to continue for most but allowed for exceptions holding out the hope that in the future more could be done for less. The most significant apparent break with austerity was only made in practice after March 2020 with the proliferation of schemes to manage the then existing exceptional moment of the new coronavirus pandemic (see Chap. 7) and then in declared policy in order to ostensibly handle the medium-term consequences of government actions taken during the height of the pandemic (HM Treasury 27/10/2021). The reader will have noted that the various forms of austerity had affinity with many other aspects of Conservative views, including reducing state involvement (shrinking the state) and placing an emphasis on personal continence and individual responsibility, as in ‘if you can’t afford to pay for the courts’ time then don’t do the crime’. Austerity also has clear and unambiguous implications for running penal institutions, not the least the privileging of outsourcing, as outsourcing acts to both institutionalise and promote resource scarcity. Clearly, penal policies may be based on the most grandiose ideas, but to be successful they must not remain as mere ideas. Any internal assessment of policy must entail a consideration of two further related issues.

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The first is implementation. For policy to be seen to be successful in its own terms, it must actually re-shape existing penal practice. For example, if a key worker role in prisons is seen as necessary to achieve a number of penal aims—like violence and self-harm reduction—then for it to be successful the policy must actually be effected, that is, prison officers must be deployed in prisons and actually undertake key worker roles in an appropriate way. Similarly, if GPS tagging is seen as highly desirable in penal terms, then the technology needs to be available and the human infrastructure to effect its actual operation be introduced and sustained. If it is seen as advantageous to introduce more prison officers, then extra officers must be recruited, trained, deployed and retained. The second issue concerns impact. Penal policy may conjure up various possibilities which may or may not be successfully implemented, but a separate issue concerns whether the policies implemented have the intended effects and avoid any side-effects that are significant and unintended. Key workers may be deployed on paper at least in every male prison, but has their deployment reduced levels of prison violence and prisoner self-harm? Has the use of GPS tags reduced reoffending amongst those so sanctioned? Has the expansion of prison officer numbers in 2016–2019 favourably impacted on prison safety and order as well as prisoner experience in terms of prison officer cell-bell responses and prisoner access to library services and purposeful activity? In summary, crime is public enemy number one and results from bad individual choices rooted in moral deprivation, which in turn result from childhoods without structure or stability. In this view, Conservative penal policy works to make our streets and screens safer by enabling courts, prisons and probation to better incapacitate more offenders in different ways, in prisons and in the community and by providing a stable, structured environment, in prisons and the community, where some offenders can optimally learn boundaries and become morally constrained. A zero sum relation exists between undeserving offenders and deserving victims and the public, placing marked constraints on what can and should be done for offenders. Chronic penal policy failure has been treated as merely a product of bad previous government policy, a chance event or act of God, or an isolated problem based on the bungling of individual officials and/or the recalcitrance of offenders.

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The Nature of the Penal Crisis In this section, I provide a conceptual analysis of the penal crisis to aid the development of an external critique. The remaining part of the theoretical orientation of the work is reserved for Chap. 8, where I situate the penal crisis in a broader analysis of the political economy of post-social democratic, late modern ownership or neo-proprietarian regimes like the UK, in order to explain why successive governments have adopted an intransigent penal policy which has exacerbated the penal crisis. Most commentators, and even governments, recognise that all is not well with the penal system. But is this a crisis? What additional meaning does this term convey over simply saying that it is having problems? According to the Concise Oxford Dictionary (1995), the word crisis has a number of meanings including: ‘1a a decisive moment’. ‘1b a time of danger or great difficulty.’ ‘2 the turning point, esp. of a disease’.

We can discount 1a above on the grounds that it is too focused on a one-off event. We can also dismiss 2 above, the notion of turning point, as no such state has yet been reached, after which things have started to improve. On the contrary, there is every reason to suppose they have worsened. Perhaps that means that we should consider rejecting the use of the term crisis altogether. But no, 1b above does capture the current situation, that of a time of danger or great difficulty. It probably does not quite capture though its chronic rather than acute nature. We are therefore left with the conclusion that the term crisis is appropriate as the penal system is experiencing a time of great danger or difficulty but that this is not a problem of the moment but a chronic or enduring condition that has characterised the operation of the penal system for the last 50 years.

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 he Constituents of the Penal Crisis: Material T and Moral Deficits Bottoms (1980) offered an early, perceptive attempt to understand the nature of the penal crisis. He suggested that the crisis had two main features. Firstly, the crisis was about a lack of resources to run prisons and support the probation service in their efforts to supervise offenders. Secondly, the crisis was about what he referred to as the ‘collapse of the rehabilitative ideal’. In other words, the primary justification for penal intervention since the end of the Second World War, that the system should attempt to change offenders into law-abiding citizens through training or treatment, had broken down. The penal system was therefore left without a humane, broadly accepted and workable moral justification, resulting in diminished legitimacy with the public and offenders and a lack of clear purpose for staff. Bottoms’ intervention not only offered a thoughtful and authoritative affirmation of the reality of the penal crisis, as at least affecting all the penal system and possibly the criminal justice system as a whole, but also suggested that to explain the crisis reference had to be made to two factors of equal weight, a material crisis based on resource scarcity in courts, prisons and probation and its many effects and how the public and participants defined their situation, that is a moral crisis. Such an analysis was at the time and is even now in marked contrast to the ‘orthodox’ accounts noted above. To be clear, to understand the penal crisis we need to get a firm grip on both material and moral influences. I want to start with material influences, a surprisingly neglected matter. Material conditions cut through with situational understandings operate at four levels and bear down on offenders at these levels. Reiner’s work can help us with the first level; with the emergence of modern, state-based, proprietarian regimes resulting from a growing division of labour and ‘social and economic inequality and hierarchies of power’, crime became defined as a matter of essential concern and in need of control. In this sense, Reiner indicates ‘crime is a capital concept’, that is to say that, from all the myriad forms of troubling, bizarre,

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disturbing, rebellious and truculent behaviour, some forms are defined as crime and particularly those forms of behaviour that threaten sacrialised private property. Reiner suggests that the notion of crime is framed in these societies by three particular assumptions—namely, ‘that crime is an offence against the general public embodied by the state’, ‘that criminal proceedings are aimed at punishing offenders’ and ‘that punishment is justified by the individual responsibility of the offender’ (Reiner 2016: 186). Crime has these features inscribed into it from the beginning. In other words, this set of institutionalised ways of seeing and doing separate out particular forms of deviance from the multiple forms that are existent and gives unique attention, priority and condemnation to these forms alone and not others. Crime is not only a capital concept and its determination the result of a necessarily skewed criminal justice system, but the motivation to engage in acts deemed criminal is not evenly distributed in the population. All are exposed to the message that greed is good and that material wealth is the central, if not the only, goal but opportunities to achieve such goals are unequally distributed, differentially exposing some groups. As Reiner notes, quoting Anatole France: ‘The law in its majestic impartiality, forbids the rich as well as the poor to sleep under the bridges of Paris, to beg in the streets and to steal bread’ (France quoted by Reiner 2016: 22). Furthermore, the necessarily skewed consequences of the criminal law are accentuated by, as Reiner puts it, ‘the politics of immunity, of non-­ criminalization’ taking account of the ability of dominant groups to shape laws, the structural connections between law and private property as inscribed into the foundation of modern law, self-fulfilling stereotyping and differential access to the legal process’ (Reiner 2016: 81). A contemporary rendition of France’s thought is that the new coronavirus regulations forbade the rich as well as the poor to leave their homes without good excuse and make ends meet by stealing ‘bread’. Taking account of the ‘politics of immunity’ noted above, we could add that this ‘impartiality’ included the differential application of the coronavirus regulations to those obliged to be on the streets (in order to get to work necessitated by an absence of a savings cushion or engage in leisure given the lack of possession of a garden space). Crime results from a conjunction of

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significant deprivation, combined with pervasive messages to succeed in material terms. Thirdly, multiple material current and future deprivations are attendant on becoming a convicted offender (loss of job, income, housing and a clean record) all occurring without any necessary attenuation in the drive to succeed in material terms. Finally, the penal system immerses offenders in its material ‘stuff’. Attempts have been made by scholars to grasp the relation between people and their material context by adopting a view based on what has been called the ‘material turn’ or even ‘material cultural turn’ (Hicks and Beaudry 2010: 1) or ‘sociomateriality’ (Skinns forthcoming), with this analysis extending to offenders in prisons (Crewe 2011; Smoyer 2019) and defendants in police custody (see Skinns, L 2011, forthcoming; Skinns and Wooff 2020). Here I will be guided by the framework of understanding for identifying the influence of penal stuff provided by Skinns, L (forthcoming). This chapter assesses the impact on the ‘dignity’ of detainees of the ‘sociomaterial’ context of police custody and identifies three key elements including the physical infrastructure (the lightness, brightness and cleanliness, design and layout and the olfactory and auditory landscape of police custody suites), the service infrastructure (the provision of CCTV, food and drinks and other services) and the cell infrastructure (consisting of extant material personal and cell-based physical stuff immediately available to detainees). The position I take here requires recognition that, on the one hand, ‘objects have embedded within the materiality of their design and manufacture a series of cultural values that shape practices, both of body and mind, by which these objects are used’ (Dant 2005: 3). I interpret this to mean that existing penal stuff affects (is thus an actant although not necessarily an actor) and reaffirms and embodies past and present understandings about penal and social relations and crime, expressed through the presence or absence of people (their appearance, official demeanour, their presumed relation to convicted offenders, prisoners and probation clientele) and plant (the architecture of courts and prisons, prison routines, prison cells, probation office layouts). Though malleable and changeable in interactions as well as over time, they also have a certain facticity so that, as Marx suggests, ‘The tradition of all the dead

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generations weighs like a nightmare on the brains of the living’ (Marx 1983: 398) and, we can add, their social relations, experiences and sense of worth as well as coming to figure in their biographies, being ‘tattooed’ on their bodies and inscribed in their consciousness (see Chap. 6 for a development of this view). In this sense, the nineteenth-century penitentiary chapel, for example, at Lincoln Castle, embodied the penal relations of the time framed by a proprietarian regime, which sacrialised property, and treated prisoners as isolated and isolatable errant individuals invoking God as both the justification of property relations and the means of redemption for prisoners. It provided them with an indelible biography, for the self and others to interpret, with the deprivations of poverty, poor diet and deficient healthcare written on their bodies  and minds and a variably defensible sense of self inscribed onto their consciousness. Similarly, the probation office embodied the pursuit of offender welfare in the heyday of social democracy, providing a private space where the well-intentioned officer could work on the deviant offender, leaving an indelible curriculum vitae, a subjection to the routines of social work and the psychological consequences of taking on the role of deviant. On the other hand, ‘other people … are … shaping and sharing cultures, those who design and make the artefacts’ and there are others ‘who benefit (or otherwise) from our material interactions’ (Dant 2005: 3), and as such ‘[People] … make their own history, but not in circumstances chosen by themselves, but under circumstances directly encountered, given and transmitted from the past’ (Marx 1983: 398). In the context of our discussion of resource scarcity, the above suggests a process of interlocking layers. Values are embedded with the original design of the court room, prison cell and the probation office. They are then ‘redesigned’ under the impact of many influences, including scarcity. And then offenders respond to this design and redesign, though probably not, with regard to court rooms, prisons and probation offices, in ways that ‘benefit’ the redesigners or their representatives. Penal staff are both responders and redesigners. As responders to the changed circumstance, they need a way to explain what they do to themselves and other audiences (see Liebling 2004), other staff and offenders. ‘Doing more for less’ and its attendant stance of a harsh, take it or leave it attitude, is probably in part shaped by the materiality of their direct

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experience of the redesigned world of scarcity and in part shaped by not being immune to external understandings, variously ratified by other elements (reducing the state as a good in itself, reducing taxes on the individual apparently giving more opportunity to exercise freedom of choice). PM Cameron’s exhortation to do more for less fell on fertile ground (Cameron March 2010 see YouTube clip). Offenders also have to adapt to the original and new design of things. Complex negotiations ensue which probably account for the resistance to remote courts noted in Chap. 3, the instability of prisons, particularly the levels of self-harm (see also Liebling et al. 2005), noted in Chap. 4 and the questioning of the reality of supervision under the CRCs noted in Chap. 5. This chapter, in trying to take account of the impact of the changing material form of the broader penal system under austerity set within a wider historical context, will use changes to the penal infrastructure by taking account of, where relevant, premises available (court closures, the ‘new for old’ policy for prisons, the privatisation of probation and its impact on office availability), trends in workload and budget and expenditure, the service infrastructure by considering staffing and service availability and the direct experience of defendants/offenders by examining court backlogs and remand in custody, changing eligibility for and contributions to criminal legal aid, cell-sharing and cell conditions in prisons and the impact of privatisation on probation supervision infrastructure (see Chaps. 3, 4 and 5). In the 2010–2021 period, the penal system has been caught between a rock and a hard place. The hard place has been created by the criminogenic consequences of broader policies which have pushed towards greater inequality, filtered through the increasingly punitive actions of the prosecutorial agencies upstream in the criminal justice system, leading to, despite the apparent fall in crime for at least part of the 2010–2021 period, little diminution of demand in penal services. The rock has been created by systematic austerity policies which have decoupled penal budgets from the demands made on them and imposed political judgements heavily influenced by assumptions about the appropriate levels of state expenditure, the need for fiscal continence, the necessity of reducing public expenditure to achieve fiscal continence, the perceived need for penal provision to be run by for-profit, ostensibly low-cost private

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companies or public agencies which mimic such private operations and even that the penal system can be modernised to allow for expansion at little or no extra cost. The prison cell designed for one prisoner, but occupied by two prisoners, embodies the ultimate message of this late modern ownership or neo-proprietarian regime (see Chap. 8 for a development of this term), of the need to do more with less, redefining downward notions of decency of treatment seen as appropriate to the less deserving status of offenders. In these circumstances, material scarcity has been imposed on the penal system which has had the effect of limiting the physical provision that can be made by courts, prisons and probation, the availability of tools and services to do the various necessary tasks and the conditions experienced by defendants and offenders. The penal material context has moved from the prison chapel (in the nineteenth century) to the probation office for much of the twentieth century, to the 5.5 m2 ‘pad’, containing twin bunk beds, a hand basin and an unscreened toilet, and designed for one prisoner but now ‘doubled-up’ (HMIP 10/10/2017: 6). Much work has focused on refining and developing the notion of what Bottoms referred to as the ‘collapse of the rehabilitative ideal’. There have been a number of useful contributions. Fitzgerald and Sim (1982) converted Bottoms’ concern about the collapse of the ‘rehabilitative ideal’ into a more general concern over legitimacy. They narrowed Bottoms’ concerns by focussing on ‘British Prisons’ rather than the penal system, asking questions about the nature, use and role of imprisonment. They widened them by setting discussion of the collapse within ‘a more fundamental political crisis which transcends the prison walls’ (Fitzgerald and Sim 1982: 24) and goes beyond the boundaries of the penal system ‘… to convert the narrow institutional history of imprisonment into a social history of the philosophy and practice of power and authority in general’ (ibid. 1982: 162), in other words an assessment of what is referred to below as the right to rule. In 1990, the psychologist, Tom Tyler, published what rapidly became an influential text, followed by a number of related works (Tyler 2003). In the 1990 text, Tyler answered his own question ‘why [do] people obey the law’ by suggesting, on the basis of survey-based work on, mainly, the police and courts, that they do so not from instrumental motives, that is, a simple calculation of self-interest but normative attachment, with this

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normative attachment rooted not in personal values but legitimacy, that is, ‘people comply with the law not so much because they fear punishment as because they feel that legal authorities are legitimate and that their actions are generally fair’ (Tyler 1990 quoted by Bottoms and Tankebe 2012: 120). In this view, legitimacy was defined as a situation where citizens see the decisions made and rules enacted by a body or institution as right and to be followed. He found that what was also important was perceived procedural fairness of the law enforcement authorities not the favourability or perceived favourability of the outcome. Tyler’s work was supported by further empirical studies (Tyler 2003), and these refined the notion of procedural justice as consisting of two main features. The first feature was the quality of decision-making relating to what is often referred to as ‘natural justice’ and connected to such considerations as being able to have a say in decision-making, the independence and neutrality of the decision-maker, his/her technical competence, consistency in decision-making. The second feature was quality of treatment. This ‘more personal’ feature was connected to being treated with respect as a human being and preserving dignity, privacy and decency of treatment including respect for moments of weakness. Tyler argued that to the extent that procedural justice was in place, then, people would be willing to accept the directives and decisions made by authorities and were less likely to engage in defiance, hostility and resistance. Absence of these factors, he found, would de-legitimate the institution. Tyler’s notion of procedural justice gained some recognition not only within criminology, but also notably when Woolf and Tumin published their report into the prison disturbances of the early 1990s (Woolf and Tumin 1991). The report found that ‘there are three requirements that must be met if the prison system is to be stable: they are security, control and justice … “security” refers to the obligations of the Prison Service to prevent prisoners escaping. “Control” deals with the obligation of the Prison Service to prevent prisoners from being disruptive. “Justice” refers to the obligation of the Prison Service to treat prisoners with humanity and fairness, and to prepare them for their return to the community in a way which makes it less likely that they will re-offend’(Woolf and Tumin 1991: Para 9.19–9.20). Clearly, the third requirement noted here has connections with Tyler’s notion of procedural justice but extends it a little

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from a concern with having a say in decisions and decent treatment to suggesting that decent treatment entails being provided with opportunities for successful rehabilitation or at least reduced reoffending. Clearly, a policy wholly or even mainly insistent on punishment through incapacitation and to ‘backgrounding’ offenders is likely to detract from the basis of procedural justice—by not considering offenders as fit and proper people to consult in decision-making about them, by viewing decent treatment as secondary to incapacitation and by placing so little emphasis on rehabilitation that it consequently nearly always falls off any practical agenda for change. Two further contributions to the debate on legitimacy in the criminal justice system were made, both by criminologists, both using a combination of survey work and ethnography and both focused on prisons and both confirmed the importance of Tyler’s work on procedural justice, with amendments. Sparks et al. (1996) suggested that Tyler’s conclusion, that what was important to legitimacy was the perceived procedural fairness of the law enforcement authorities, rather than the favourability or perceived favourability of outcome, was not supported by their research and they related this to the enclosed nature of the prison and the fact that most outcomes are known within this closed environment and intensely studied by inmates, unlike, perhaps, outcomes in the broader society. Liebling (2004) suggested that prison officials need to take account of more than one audience in assessing their legitimacy, given that offenders and the public may be seen to hold markedly different views about penal priorities. The contributions of these authors suggested that legitimacy was about, especially in prisons, not only the perceived, but also the actual favourability of outcomes as well as the decency of treatment, which included being given the opportunity to reform, and that functionaries within the penal system are pressured by different conceptions of what constitutes legitimacy associated with different audiences. Bottoms and Tankebe (2012) offered a magisterial contribution to the legitimacy debate and in so doing provided many insights relevant for our current concerns. Bottoms and Tankabe’s paper may be summed up in six main points. Firstly, they argue that the work on procedural justice remains useful but is ultimately ‘limited in scope’ confined as it is to the decisions and rules made by an authority, rather than an assessment of

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the fundamental ‘right to rule’ (2012: 124). Secondly, adopting a right to rule view recognises that legitimacy is based on an ‘iterative process’, that is, the process is ‘contingent and defeasible’ (2012: 125), meaning that legitimacy is an enterprise established afresh if not each day, then on-­ goingly within courtrooms, prison wings and on probation unpaid work sites. Thirdly, this iterative process is social or as they put it ‘dialogic and relational’ (2012: 129), that is, it is negotiated between key participants. Fourthly, key participants of the social process include not just an audience of defendants, prisoners and probation users who convey or do not convey legitimacy on power holders, but also power holders who also seek self-belief in their own legitimacy in the eyes of their colleagues and clients, a particularly important issue in the light of policy ambiguity about penal purposes. Fifthly, an absence of legitimacy has consequences in terms of defendant (the recent spate of difficult conduct in digital court hearings, for example), prisoner (that there is a clear connection between failure of quality of treatment and self-harm incidents in prison as Liebling et al. (2005) found) and probationer behaviour (unpaid work being understood as ‘slavery’), as well as staff conduct. Finally, a right to rule position opens out the exploration of not just the quality of decision-­ making and quality of treatment in courts, prisons and probation, but also broader questions about whether such institutions deliver necessarily reduced, but nevertheless optimised, fundamental features associated with modern, western, democratic liberal societies, namely, the right to life, liberty, fair trial, no punishment without law, security, respect for family life and privacy, freedom of thought, conscience, religion, expression and assembly, to effective remedy and limits on the restrictions that can be placed on these rights, as well as prohibitions on torture, slavery and forced labour, discrimination, abuse and/or restriction of rights. I will interpret this to mean, when assessing the actual impact of policies in subsequent chapters, the extent to which policies contribute to or detract from justice. A further aspect of the issue of legitimacy was indicated as early as 1982 by Fitzgerald and Sim as noted above and later highlighted by Garside (2019: 50), when he argued, from an abolitionist stance, that there not only is a ‘crisis in prisons’, that is, prisons are going through recurrent crises rooted in poor material conditions, but also a ‘crisis of

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imprisonment’ based on ‘our enduring attachment to the prison and imprisonment as a social institution’, with the two being inextricably connected in that they ‘feed off and sustain one another’. We neither have to adopt this rather restricted view of the penal crisis in full nor swallow the whole abolitionist argument that underlies it to recognise that Garside has a point—which is that part of the legitimacy crisis affecting the penal system is rooted in our ‘enduring attachment’ to, or fixation on, both the criminal law as way of defining and solving disputes and in particular the prison as a way of putting those who are deemed to offend out of the way. The extent of this fixation is manifested in the ease with which governments make new criminal laws (many of which feature the prison as a sanction) (see Skinns 2016: 48), the frequent and growing use of imprisonment as a penal sanction by the courts and increasing average custodial sentence lengths (see Chap. 3) and the high imprisonment rates in England compared with other European countries (Council of Europe April 2017: Table 1.5) and is in turn connected to notions of incapacitation. Even within prisons, frequent use is made of imprisonment, with independent adjudicators able to add 42 extra days per prisoner to the existing sentence for breaches of prison discipline offences leading to some 290,000 extra days of imprisonment being added in 2016 (Howard League 2017). Independent adjudicators and governor adjudicators also are able to resort to the use of cellular confinement, where a prisoner is removed from the normal prison population and imprisoned in a care and separation unit within the prison (colloquially known as ‘seg’), until the sentence has been served, in effect, incarcerating the incarcerated, involving some 25,000 such sentences in 2015 (see Chap. 4). All are connected to the constant search for severity, harshness and punishment. The penultimate intervention worthy of note here in order to attain our aim of a full explication of the nature of the penal crisis concerns the question of what has been called the crisis of visibility (Fitzgerald and Sim 1982: 6–11) or accountability (Cavadino et al. 2013). Accountability is a matter of fundamental concern in a democratic society. It is vital that power holders outwith and within the penal system are rendered answerable for their decisions, as answerability opens the possibility of an effective system of checks and balances, one of the key features of a liberal democratic society.

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The groups held accountable are most obviously various functionaries of courts, prisons and probation. The people or bodies that hold them to account vary greatly in a variety of impact-relevant features (type, status, role, relation to accountee, remit, powers, method, the generalisability and availability of reports and findings and follow-up mechanisms) but are all problematic in some regard. Access to judicial review of prison decisions by prisoners is limited by, amongst other things, legal aid cuts, prisons being closed institutions, cut-off from local communities, hedged in by the Official Secrets Act and public ‘out of sight out of mind’ sentiments, with accountability bodies that lack a statutorily defined role and statutorily defined standards to enforce (see Chaps. 3 and 4). Probation, like prisons, tends to be ‘out of sight and out of mind’ of the public, and the watchdog role of HMI Probation unable to exert much pressure on political decision-makers, at least in the medium term, as the dismal failure of successive Conservative governments to take timely and effective action to remedy the bodged part-privatisation of probation has demonstrated (see Chap. 5). The final matter connected to legitimacy concerns penal policy-­making itself, an important process which tends to escape political or other scrutiny. This matter is an aspect of accountability, although rarely seen in this way and concerns how penal policy is made, about the way in which policies are constructed and the kinds of policies that emerge, and the mechanisms involved. Penal policy-making has been able to escape rigorous political scrutiny for many years, because of the all-party punitive consensus that has emerged and the relative weakness of parliamentary mechanisms on this matter. The role of, for example, the House of Commons Justice Select Committee is to examine implementation of penal policy not the proposals for such policies. Furthermore, penal policy is generally exempt from the primary scrutiny bodies. For example, prison policy is specifically ruled off the agenda for the primary prison scrutiny bodies, HM Inspectorate of Prisons (HMIP), the Prisons and Probation Ombudsman Office (PPO) and the Independent Monitoring Board for prisons (IMB). This situation has been compounded over the last 40 years by the refusal of Ministers of all parties to seek outside advice on penal policy-making. The expressed desire by the Johnson government to appoint a royal commission on criminal justice might constitute

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a break with this position, but if the track record of the Johnson governments on seeking advice on longer sentences for some offenders (MOJ 12/08/2019c) and scientific and medical advice on the new coronavirus pandemic from the SAGE group indicates anything, then it suggests that the royal commission may only function to reproduce what the government wants to do anyway and/or play the role of scapegoat when something goes wrong (see Chap. 7). The weaknesses of the system have been compounded by the accepted practice of amateurs guided by civil servants, adopted when making Ministerial appointments. Political instability particularly in the 2015–2021 period exacerbated the situation, there having been no less than five Conservative governments, seven Ministers of Justice (with Robert Buckland being appointed twice to the post and then sacked to be replaced by Dominic Raab in September 2021) and seven Prisons and Probation Ministers (with Lucy Frazer being appointed thrice to the post, but replaced in September 2021 by Victoria Atkins). The weakness of administrative scrutiny has been exacerbated by the lack of effective political opposition since the implosion of the Labour Party, after the 2010 general election, a situation which has only worsened over time, culminating in the disastrous 2019 general election and the various election results in May 2021. The Labour Party has a long way to go to being an effective opposition on any matter, not the least penal policy. Finally, penal policy-making is also a no-go area for the only other form of accountability, through the courts, as courts very specifically do not comment on policies. My conceptual analysis of the penal crisis has suggested that it is based on two related aspects. A crisis of material resources which detrimentally affects the fundamental operation of courts, prisons and probation and a moral crisis about whether these penal institutions are understood to be procedurally fair, as seen by the public, staff and defendants and offenders in that they involve those affected in the decisions made about them, treat people decently and humanely and provide opportunities for rehabilitation and resettlement. It also has a bearing on the role the prison plays in the penal system and society, the accountability of individual parts of the system as well as the system as a whole and the basis of penal policy-making. Finally, my conceptual analysis suggests, following

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Bottoms and Tankebe (2012), the need for an assessment of the ‘right to rule’ and thus the extent to which policy actions have been functional to the pursuit of justice, that is, the right to life, liberty, fair trial, no punishment without law, security, respect for family life and privacy, freedom of thought, conscience, religion, expression and assembly, to effective remedy and limits on the restrictions that can be placed on these rights, as well as prohibitions on torture, slavery and forced labour, discrimination, abuse and/or restriction of rights (hereinafter referred to as the essential elements of justice). Both the material and moral crises have been exacerbated by the emphasis placed on austerity, outsourcing and punishment by the Coalition government.

Conclusion The first part of this chapter suggests that an internal assessment should consider whether government policy has produced a penal system which is consistent with Conservative penal philosophy, resilient enough to handle all cases that the upstream agencies in the criminal system produce whilst minimising costs and reoffending and maximising justice, the incapacitation of offenders and the provision of stable court, prison and probation conditions which aid throughput, safety, control and a ‘second chance’ for offenders. The second part of the chapter suggests that an external assessment has to consider the impact of government penal policy on the chronic penal crisis and must take account of not just whether the actions taken have eroded the provision of material infrastructure (the plant and people) in the context of throughput, but also whether policy has contributed to or detracted from procedural justice in the view of the public and staff and penal system users, diminished the fetishisation of the prison, enabled greater accountability, improved the process of penal policy-making and generally contributed to justice. Chapters 3–5 go on to critically examine successive Conservative governments’ penal policy on, respectively, courts when sentencing, prisons and probation.

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References BBC News (06/02/2020) ‘Windrush: row over criminal deportation flight.’ Bottoms, A E (1977) ‘Reflections on the renaissance of dangerousness’, Howard Journal of Criminal Justice, 16: 70–96. Bottoms, A E (1980) ‘An introduction’ to ‘The Coming Crisis’, in A E Bottoms, and R Preston (eds) The Coming Penal Crisis, Edinburgh: Scottish Academic Press. Bottoms, A E and Tankebe, J (2012) Beyond Procedural Justice: A Dialogic Approach to Legitimacy in Criminal Justice, Journal of Criminal Law and Criminology, 102/1 Article 4, 118–170 and @ https://scholarlycommons.law. northwestern.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=7419& context=jclc Cameron, D (March 2010) Youtube clip ‘Cameron promises to deliver more for less’ @ https://www.youtube.com/watch?v=GqaRT3afs0o Cavadino, M Dignan, J and Mair, G (2013) The Penal System, London: Sage. Concise Oxford Dictionary (1995) ‘Crisis’, Oxford: Oxford University Press. Conservative Party General Election Manifesto (April 2015) Strong leadership, a clear economic plan, a brighter, more secure future @ http://ucrel.lancs. ac.uk/wmatrix/ukmanifestos2015/localpdf/Conservatives.pdf Conservative Party General Election Manifesto (May 2017) Forward Together @ http://ucrel.lancs.ac.uk/wmatrix/ukmanifestos2015/localpdf/ Conservatives.pdf Conservative Party General Election Manifesto (November 2019) Get Brexit Done: Unleash Britain’s Potential @ https://assets-­global.website-­ files.com/5da42e2cae7ebd3f8bde353c/5dda924905da587992a064ba_ Conservative%202019%20Manifesto.pdf Cooper, C (20/11/2016) ‘UK economy must be ‘match-fit’ for Brexit’, Politico @ https://www.politico.eu/article/uk-­economy-­match-­fit-­for-­brexit-­phillip-­ hammond-­chancellor/ Council of Europe (April 2017) Annual Penal Statistics: Space 1—Prison Populations @ https://rm.coe.int/prisons-in-europe-2005-2015-volume-1/ 1680990199 Crewe, B (2011) ‘Soft power: Implications for staff-prisoner relationships, liberty and legitimacy,’ European Journal of Criminology, 8(6): 455–468. Dant, T (2005) Materiality and Society, Maidenhead: Open University Press. Fitzgerald, M and Sim, J (1982) British Prisons, Oxford: Basil Blackwell. Garside, R (2019) Getting out of the crisis, Prison Service Journal, 243: 48–54.

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Gayle, D (03/08/2019) ‘Home Secretary Priti Patel criticised over wish for criminals “to feel terror”’, The Guardian. Gayle, D Taylor, D and Gentleman, A (07/2020) ‘Jamaica deportations ‘must be halted until Windrush report published’, The Guardian. Gentleman, A (2019) The Windrush Betrayal: Exposing the Hostile Environment, London: Faber. Gove, M (17/07/2015) ‘Treasure in the heart of man’ Speech @ https://www. gov.uk/government/speeches/the-­treasure-­in-­the-­heart-­of-­man-­making-­ prisons-­work HM Inspectorate of Prisons (10/10/2017) Thematic Report Life in Prisons: Living Conditions @ https://www.justiceinspectorates.gov.uk/hmiprisons/ w p -­c o n t e n t / u p l o a d s / s i t e s / 4 / 2 0 1 7 / 1 0 / Fi n d i n g s -­p a p e r -­L i v i n g -­ conditions-­FINAL.pdf HM Treasury (October 2010) Spending Review and Autumn Statement @ https://assets.publishing.service.gov.uk/government/uploads/system/ uploads/attachment_data/file/203826/Spending_review_2010.pdf HM Treasury (27/11/2015) Spending Review and Autumn Statement @ https:// www.gov.uk/government/publications/spending-­review-­and-­autumn-­statem ent-­2015-­documents HM Treasury (27/10/2021) Budget and Spending Review: documents @ https://www.gov.uk/government/publications/autumn-­b udget-­a nd-­ spending-­review-­2021-­documents Hicks, D and Beaudry, M C (2010) ‘The material-cultural turn’ in D Hicks and M C Beaudry (eds) The Oxford Handbook of Cultural Studies, Oxford: Oxford University Press: 1–21. House of Commons Justice Select Committee (03/04/2017) Governor empowerment and prison performance @ https://publications.parliament.uk/pa/ cm201617/cmselect/cmjust/1123/112304.htm House of Commons Justice Select Committee (31/10/2019) Prison Governance @ https://publications.parliament.uk/pa/cm201919/cmselect/ cmjust/191/191.pdf ). Howard League for Penal Reform (2017) Out of Control @ https://howardleague. org/publications/out-­of-­control/ Johnson, A B (19/05/2019) ‘Letting drug dealers out of prison to go on spa breaks is criminally stupid’, The Daily Telegraph. Liebling, A (2004) Prisons and Their Moral Performance, Oxford: Oxford University Press.

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Liebling, A, Durie, A Stiles, A and Tait, S. (2005) ‘Revisiting prison suicide: the role of fairness and distress’ in A Liebling and S Maruna (eds) The Effects of Imprisonment, London: Routledge. Marx, K (1983) Selected Works, Moscow: Progress Publishers. MOJ (18/05/2016a) Press Release: ‘Biggest shake-up of prison system announced’ as part of the Queen’s speech’ @ https://www.gov.uk/government/news/biggest-­s hake-­u p-­o f-­p rison-­s ystem-­a nnounced-­a s-­p art-­o f-­ queens-­speech MOJ (03/11/2016b) Speech by Liz Truss: Prison Reform @ https://www.gov. uk/government/speeches/prison-­reform-­justice-­secretary-­speech MOJ (03/11/2016c) Prison Safety and Reform White Paper @ https://www. gov.uk/government/publications/prison-­safety-­and-­reform MOJ (23/02/2017) Press Release: ‘Prison governor empowerment and accountability’ @ https://www.gov.uk/government/speeches/prison-governorempowerment-and-accountability MOJ (20/08/2018) ‘Minister announces “10 prisons project” ‘@ https://www. gov.uk/government/news/minister-­a nnounces-­1 0-­p risons-­p roject-­t o-­ develop-­new-­model-­of-­excellence MOJ (18/02/2019a) Speech by David Gauke: Beyond Prison, Redefining Punishment @ https://www.gov.uk/government/speeches/beyond-­prison-­ redefining-­punishment-­david-­gauke-­speech MOJ (18/07/2019b) Speech by David Gauke: ‘Smarter sentences, safer streets’ @ https://www.gov.uk/government/speeches/smarter-­sentences-­safer-­streets MOJ (12/08/2019c) Press release: PM orders review to look at most dangerous and prolific offenders’ @ https://www.gov.uk/government/news/pm-­launches-­ sentencing-­review-­to-­look-­at-­most-­dangerous-­and-­prolific-­offenders MOJ (22/08/2019d) Results from the 10 prisons project @ https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/826775/10-­prisons-­statistics.pdf MOJ (22/08/2019e) Press Release: ‘10 prisons project sees drops in violence and drugs’ @ https://www.gov.uk/government/news/10-­prisons-­project-­sees-­ drops-­in-­violence-­and-­drugs Patel, P (25/09/2011) Appearance on ‘Question Time’, BBC 1 @ https://www. youtube.com/watch?v=_5aodBfdFTA Piketty, T (2020) Capital and Ideology, Cambridge: Belknap of Harvard University Press. Reiner, R (2016) Crime, Cambridge: Polity Press.

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Sabbaugh, D and Butler, P (18/11/2020) ‘Boris Johnson agrees £16bn rise in defence spending’, The Guardian. Skinns, D (2016) Coalition Government Penal Policy 2010–15: Austerity, Outsourcing and Punishment, London: Palgrave Macmillan. Skinns, L (2011) Police custody: governance, regulation and reform in the criminal justice process, Cullompton: Willan. Skinns, L (forthcoming) ‘“Come on mate, let’s make you a cup of tea”: an examination of sociomateriality and its impact on detainee dignity inside police detention.’ Skinns, L and Wooff, A (2020) ‘Pain in police detention: a critical point in the “penal painscape”?’ Policing and Society, 31(3): 245–262. Smoyer, A B (2019) ‘Food in correctional facilities: A scoping review’, Appetite, 141, 104312: 1–8. Sparks, R Bottoms, A E and Hay, W (1996) Prisons and the Problem of Order, Oxford: Clarendon Press. Taylor, D (10/02/2020a) ‘Jamaican-born deportees mount last-minute challenge against Home Office,’ The Guardian. Taylor, D (11/02/2020b) ‘Waiting is worse than death row,’ The Guardian. Telegraph Reporters (11/02/2020) ‘Jamaica deportation flight of criminals takes off despite Appeal Court Order,’ The Telegraph. Thatcher, M (31/10/1987) Interview Women’s Own @ Margaret Thatcher Foundation website @ https://www.margaretthatcher.org/document/106689 Tyler, T (1990) Why People Obey the Law, New Haven: Yale University Press. Tyler, T (2003) Procedural Justice, Legitimacy and the Effective Rule of Law, Crime and Justice, 30: 283–357. UK Government (July 2021) Beating Crime Plan @ https://assets.publishing. service.gov.uk/government/uploads/system/uploads/attachment_data/ file/1006825/Crime-­Plan-­accessible-­version_2.pdf Woolf, H and Tumin, M (1991) Prison Disturbances, April 1990, London: HMSO.

3 Courts and Sentencing

Introduction Chapter 3 provides an internal and external critique of the Conservative governments’ courts and sentencing policies for adults and young adults in England and Wales, May 2015–March 2020. It is supplemented by Chap. 6, which examines government attempts to reduce bias and discrimination in the penal system. Chapter 7 then examines government efforts to manage the penal system in the time of the pandemic, thereby extending the assessment of courts and sentencing policy from mid-­ March 2020 to the summer of 2021.

 ey Conservative Government Sentencing K Policies 2015–2020: Internal Critique The internal critique is divided into two main sections, consisting of court administration and sentencing.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 C. D. Skinns, Conservative Government Penal Policy 2015–2021, https://doi.org/10.1007/978-3-031-00797-2_3

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Court Administration There are three sub-sections including maintaining the legal aid austerity regime, ‘Transforming’ courts and outsourcing financial penalty debt enforcement.

Maintaining the Legal Aid Austerity Regime Conservative government policy on legal aid preserved the austerity-­ driven character set down by the previous government by mounting a rear guard action designed to counter growing vociferous criticism by delay and prevarication, whilst simultaneously contributing to, but then denying, any detrimental impact on access to justice. The Coalition government between 2010 and 2015 justified legal aid reform on the grounds that its costs were too high and not sustainable, that the scope of legal aid had widened beyond the expectations of its founders and into areas that were not legitimate, that the legal aid body needed, like all government departments, to make a significant contribution to austerity and that cuts could be made without affecting access to justice (Skinns 2016: 55–56). Three main changes to criminal legal aid were made. Firstly, the Legal Services Commission (LSC) was rebadged as the Legal Aid Agency (LAA) and reconstituted as an executive body of the Ministry of Justice (MOJ), reducing its independence. Next the scope of legal aid was reduced by limiting the areas of legal practice covered and by tightening up the eligibility criteria in terms of both the merits of the case and the means of the applicant. Thirdly, a blanket reduction in legal fees payable to barristers and solicitors was partially effected, with the first 8.5% reduction being implemented, but the second reduction, of a further 8.5%, postponed until after the 2015 general election. A restriction on the number of law firms permitted to do legal aid work was also proposed. The system that was established split legal aid into two—‘crime higher’ and ‘crime lower’. Crime higher provided for litigation and advocacy services in crown, appeal and supreme courts and crime lower for advice and assistance in the police station, advice, assistance and advocacy services in

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magistrates’ courts; and advice, assistance and advocacy services in relation to prison law matters. Such assistance was only provided by staff from law firms (there were about 1800 such firms in England and Wales in 2018) that had an LAA standard crime contract (MOJ 30/04/2019c). Such firms were monitored by the LAA. The monitoring was more indirect for barristers. Only barristers with the right ‘suitability and experience’ would be briefed by solicitors. Payments were made direct to legal representatives based on set fees, sometimes for specific work or on a set hourly rate. To obtain criminal legal aid a defendant and his/her case had to pass three tests. The case firstly had to fall within the newly defined scope of legal aid—in practice most criminal law cases (but not prison law cases— see below) did fit within the scope of legal aid. Next a case would only obtain legal aid if it passed the interests of justice (IOJ) test. Finally, the defendant had to pass a means test. The means test did not apply to advice provided in police stations for all criminal cases, to advice, assistance and advocacy for those under 18 and for those who received certain approved, so-called passported, social security benefits. The changes introduced by Legal Aid, Sentencing and Punishment of offenders Act (LASPO) 2012 also had a drastic impact on prison law cases, limiting legal aid to four areas, namely, proceedings involving the determination of a criminal charge, all proceedings of the Parole Board where the Board has the power to direct the individual’s release, advice and assistance in relation to sentence calculation where the date of release or date of Parole Board consideration are in dispute and disciplinary cases where the governor has given consent for representation under the Tarrant rules (MOJ February 2019a: Para 4.3 976 items i–iv). Instead, prisoners were expected to take ‘treatment cases’ (including such matters as prison conditions, discrimination, compassionate release, sentencing matters like categorisation and segregation, disciplinary matters in relation to adjudications and Parole Board reviews in relation to a mandatory life sentence) to internal prison processes and make more use of the Probation and Prisons Ombudsman’s Office and the Independent Monitoring Board. Strong opposition was expressed to the reforms in the 2010–2015 period (Skinns 2016, Chapter 4: 50–62) and continued 2015–2020, involving a broad variety of groups including the Bach Commission

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(07/12/2017), Bar Council and the Law Society (see the evidence given by these bodies to the House of Commons Justice Select Committee 18/07/2018), and covering a wide range of views including concerns about the impact of the cuts on the financial position of law firms, the consequent ability of clients to obtain legal advice and assistance, and overall, the net effect of the cuts on access to justice. Some concessions were extracted from successive governments during 2015–2020. The Minister of Justice, in January 2016, postponed the planned further 8.5% cut in legal fees for lawyers undertaking legal aid work and cancelled the planned revised contracting process for duty solicitors which would have restricted the number of legal firms permitted to do this work (Bowcott 28/01/2016). Furthermore, the Court of Appeal (see Travis and Bowcott 10/04/2017) upheld the claim by the Howard League and Prisoners’ Advice Service that the removal of legal aid from some prison law cases (including re-tariff hearings of the Parole Board, Category ‘A’ prisoner reviews and placement in Closed Supervisions Centres) was unfair, and legal aid support was restored for these type of cases. But opposition continued from diverse sources. The House of Commons Justice Select Committee urged the setting up of a review by March 2019 and a full report within 12 months (House of Commons Justice Select Committee 18/07/2018). This was added to by a judicial review action by the Law Society and by the direct action of the Criminal Bar Association and lawyers (House of Commons Justice Select Committee 18/07/2018). The concerns here were, once again, the impact of the legal aid reforms on the viability of law firms and defendants’ access to justice. The recognition of emerging problems eventually led the government to establish two reviews. A review of Part 1 of LASPO, dealing with changes to legal aid, was set up after some five years of operation, in March 2018 (MOJ February 2019a: Para 80). It was reported in February 2019. The report began by asserting that ‘the ability of individuals to resolve their legal issues is vital for a just society and everyone must have the ability to avail themselves of the justice system … It is crucial that people should be supported through this process … [and] a core element

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of this support is … access to publicly funded legal advice and representation where it is necessary’ (MOJ February 2019a: Para 1). However, the report then went on to consider the impact of LASPO on criminal legal aid and virtually its entire concern was not whether access to justice had been diminished by the reforms, but whether the reforms had saved money. They concluded that significant savings of about £140m per  annum had been made, although this was less than expected, given the growing complexity of cases processed. However, they did recognise that legal fee reductions had detrimentally affected the sustainability of law firms working in this area. They also noted that the changes in prison law legal aid had shifted the cost burden from the Legal Aid Agency (LAA) to the HM Prison and Probation Service (HMPPS) and had probably left prisoners in a situation where they felt that their genuine concerns had no effective remedy given that they had little confidence in prison internal procedures. The report suggested that ‘the Government has acknowledged, that for certain matters concerning prison law, prisoners should be supported through legal aid and have since made the necessary changes to expand scope’ (Para 64), as noted above. They suggested that, concerning the problems of the sustainability of law firms working on criminal legal aid cases, the Legal Support Action Plan included some increased financial support to legal fees (Para 66) and they went on to promise a further, more ‘holistic’ review of the matter (Para 67). In addition a review of criminal legal aid was announced in December 2018 and the group was appointed in March 2019 and provided a ‘programme overview’ in April 2019. The Criminal Legal Aid Review noted the criticisms that had been made of both the criminal legal aid scheme and the market that this scheme produced. They indicated, with regard to the scheme itself, that it did not fairly reflect and pay for work done and failed to sustain the market or encourage diversity in the workforce; it did not drive ‘just, efficient and effective case progression and ensure value for money’; it was ‘too complex and administratively burdensome’; it failed to ensure that ‘cases were dealt with by practitioners with the right skills and experience’ and it was unable to ‘support … or enable, wider reforms’ (MOJ 30/04/2019c: 4). Its final report, originally expected in November 2019, was delayed by the general election in December

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2019 (The Law Society 05/11/2019) and then by the coronavirus pandemic and was only published in November 2021 (Bellamy 29/11/2021) and is thus dealt with in Chap. 7. However, a press release from the MOJ in August 2020 (MOJ 21/08/2020b and 21/08/2020c) suggested that some urgent action had been taken to deal with immediate issues and that an injection of some ‘£36m to £51m per year’ into the criminal legal aid scheme (an amount that seems disproportionately small) was planned, but that in order to ‘meet demand now and into the future, provide an effective and efficient service that ensures value for money for the taxpayer, and continues to provide defendants with high-quality advice from a diverse range of practitioners’. But the situation was such that the Minister wrote: I have decided that the next phase of the Review should involve an independently-­led review that will be ambitious and far reaching in scope, assessing the criminal legal aid system in its entirety, and will aim to improve transparency, efficiency, sustainability and outcomes in the legal aid market. (MOJ 21/08/2020b)

It is difficult to avoid the conclusion that this was little more than a ‘long grass’ strategy, especially as the Bellamy review was on-going as noted above and the then Justice Minister, Robert Buckland, was, in 2011, an ardent exponent of cuts in legal aid (Buckland 13/11/2011) and that the fiction noted above, namely, that the system ‘continues to provide defendants with high-quality advice from a diverse range of practitioners’ is treated as fact in this press release. The rear guard action to defend criminal legal aid reduction produced a substantial result in the 2015–2020 period. Thus, the MOJ’s statistics referring to that measure which is ‘the main budgeting measure used by government to control current spending, both to set budgets for future years and report on how much has been spent’ (MOJ/LAA Legal Aid Statistics Quarterly 25/06/2020: 4), showed that total legal aid expenditure had been reduced by 30% and criminal legal aid expenditure decreased by 26% between 2009–2010 and 2014–2015. In the 2014/2015 to 2019/2020 period, total legal aid expenditure reduced by a further 6% and criminal legal aid expenditure by a further 11%. Overall

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between 2009/2010 and 2019/2020, both total legal aid expenditure and criminal legal aid expenditure were reduced by 34%. (See Table 3.1 in this chapter.) Furthermore, successive governments have been in denial over the impact of the reforms on wider questions of access to justice. This was not the position adopted by the House of Commons Justice Select Committee in 18/07/2018 when they wrote: In criminal cases, it has been recognised that there is a common law right to legal advice, together with a right to legal representation under Article 6 of the European Convention on Human Rights. We conclude that there is compelling evidence of the fragility of the Criminal Bar and criminal defence solicitors’ firms, which places these rights at risk—a risk that can no longer be ignored (Summary).

The same report went on to raise concerns about the broader context of changes to courts by writing that An effective criminal justice system is one of the pillars on which the rule of law is built; effectiveness also demands that the fabric of the criminal courts is maintained. The under-funding of the criminal justice system in England and Wales threatens its effectiveness, so undermining the rule of law and tarnishing the reputation of our justice system as a whole, which is widely admired (ibid.).

It is fitting that the last word on the matter should go to Conservative MP and chair of the House of Commons Justice Select Committee, Bob Neill, reflecting on the changes introduced 2015–2020, wrote that ‘ the evidence now compellingly shows that … [legal aid] cuts went too far’ and that they revealed an approach that was ‘unacceptably transactional’, making it ‘difficult for some of the most vulnerable members of our society to secure legal advice and representation’, leading to defendants/litigants attempting to act for themselves exacerbating the build-up of case backlogs (Neill 24/05/2021). Overall, the policy pursued here, a muscular rear guard and delaying action, has been successful at maintaining most of the changes ­introduced

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Table 3.1  HM Courts Service (HMCS)/HM Courts and Tribunals Service (HMCTS) and the Legal Services Commission (LSC)/Legal Aid Agency (LAA): workload, expenditure, staffing, premises and aspects of the direct experience of users, in England and Wales 2009/2010, 2014/2015, 2019/2020 and 2020/2021 Year, unless otherwise specified

Courts

Legal aid

Workload

Receipts in magistrates’ and Crown Courts Source: MOJ (24/06/2021c) Tables M1 and C1

2009–2010

Crown Court (CC) 152,684 Magistrates’ Court (MC) 1,563,831

2014–2015

CC 134,256 % Change 2009/2010 to 2014/2015: −12% MC 1,604,379 % Change 2009/2010 to 2014/2015: 3%

2019–2020

CC 104,435 % Change 2014/2015 to 2019/2020: −22% % Change 2009/2010 to 2019/2020: −32% MC 1,455,804 % Change 2014/2015 to 2019/2020: −9% % Change 2009/2010 to 2019/2020: −7%

Total court applications and grants for legal aid in criminal cases Source: UK Government Legal Aid Statistics (24/06/2021) Tables 3.1 and 3.2 2010–2011 MC: 465,166 CC: 107,368 Total: 572,534 MC: 346,503 % Change 2010/2011 to 2014/2015: −26% CC: 118,656 % Change 2010/2011 to 2014/2015: −11% Total: 465,159 Change 2010/2011 to 2014/2015: −19% MC: 203,408 % Change 2014/2015 to 2019/2020: −41% % Change 2010/2011 to 2019/2020: −56% CC: 91,872 % Change 2014/2015 to 2019/2020: −23% % Change 2010/2011 to 2019/2020: −14% Total: 295,280 Change 2014/2015 to 2019/2020: −37% (continued)

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Table 3.1 (continued) Year, unless otherwise specified 2020–2021

Courts

Legal aid

CC: 97,002 % Change 2019/2020 to 2020/2021: −7% MC: 1,043,282 % Change 2019/2020 to 2020/2021: −28%

MC: 174,820 % Change 2019/2020 to 2020/2021: −14% CC: 90,732 % Change 2019/2020 to 2020/2021: −1% Total: 265,552 Change 2019/2020 to 2020/2021: −10% Source: UK Government (24/06/2021) Legal Aid Statistics Table 1.0 Resource Department Expenditure Limits—‘real terms’ (i.e. adjusted for inflation) Total: £2.561bn Criminal legal aid: £1.311bn Total: £1.790bn % Change 2009/2010 to 2014/2015: −30% Criminal legal aid: £0.972bn % Change 2009/2010 to 2014/2015: −26% Total £1.680bn % Change 2014/2015 to 2019/2020: −6% % Change 2009/2010 to 2019/2020: −34% Criminal legal aid:£0.864bn % Change 2014/2015 to 2019/2020: −11% % Change 2009/2010 to 2019/2020: −34%

Total Sources: HM Courts Service expenditure (HMCS) 15/07/2010:72, HMCS and net costs 05/07/2011a:17, HMCTS 15/06/2015:53, HMCTS 21/07/2020a:50 and HMCTS 15/07/2021a: 5 2009–2010 Expenditure: £1.77bn Net cost: £1.158bn 2014–2015 Expenditure: 1.79bn % Change 2009/2010 to 2014/2015: 1% Net cost: £1.1bn % Change 2009/2010 to 2014/2015: −5% 2019–2020 Expenditure: £2.05bn % Change 2014/2015 to 2019/2020: 15% % Change 2009/2010 to 2019/2020: 16% Net cost: £1.23bn % Change 2014/2015 to 2019/2020: 12% % Change 2009/2010 to 2019/2020: 6%

(continued)

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Table 3.1 (continued) Year, unless otherwise specified 2020–2021

Staffing FTEs, unless otherwise stated

2009–2010

2014–2015

Courts

Legal aid

Expenditure: £2.183bn % Change 2019/2020 to 2020/2021: 6% Net cost: £1.5bn Change 2019/2020 to 2020/2021: £0.27b an increase of 22% Sources: Courts and Tribunals Judiciary 29/07/2010; HMCS 15/07/2010: 92; HMCTS 15/06/2015: 71; HMCTS 30/07/2015, no page numbers; HMCTS 21/07/2020a: 40; HMCTS 17/09/2020: 10; HMCTS 15/07/2021a: 53; MOJ 17/09/2020d, no page numbers Administrative staff: Permanent FTEs: 18,291 (total staff FTEs 18,629) Judges: 3598 2009 Magistrates: 29,270 Administrative staff: permanent FTEs 16,162 (total staff FTEs 17,033) % Change 2009/2010 to 2014/2015: −12% Judges: 3238 % Change 2009/2010 to 2014/2015: −10% Magistrates: 19,634 % Change 2009/2010 to 2014/2015: −33%

Inflation-adjusted accounts not available by document end-point for study, 31/12/2021

Sources: LSC 23/11/2010: 84 and LAA 10/06/2015: 69, 21/07/2020: 62 and 22/09/2021: 77

1516

1603 % Change 2009/2010 to 2014/2015: 6%

(continued)

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Table 3.1 (continued) Year, unless otherwise specified 2019–2020

2020–2021

Premises

Courts

Legal aid

Administrative staff: Permanent FTEs 14,041 (total staff FTEs 16,264) % Change 2014/2015 to 2019/2021: −13% % Change 2009/2010 to 2019/2020: −23% Judges: 3174 % Change 2014/2015 to 2019/2020: −2% % Change 2009/2010 to 2019/2020:−12% Magistrates: 13,177 % Change 2014/2015 to 2019/2020: −33% % Change 2009/2010 to 2019/2020: −55% Administrative staff: Permanent FTEs 14,495 (total staff FTEs 16,713) % Change 2019/2020 to 2020/2021: 3% % Change 2009/2010 to 2020/2021: −21% (plus marked shit to agency and contract staff) Judges: 3374 % Change 2019/2020 and 2020/2021: 6% Magistrates:12,651 % Change 2019/2020 and 2020/2021: −4% Sources: Sturge 22/12/2020: 21 and House of Commons Justice Select 31/10/2019b: Para 90a

1162 % Change 2014/2015 to 2019/2020: −28% % Change 2009/2010 to 2019/2020: −23%

1137 Change 2019/2020 to 2020/2021: −2%

–

(continued)

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Table 3.1 (continued) Year, unless otherwise specified 2009–2010

2014–2015 2019–2020

2020–2021

Direct experience of defendants/ offenders

2009/2010

Courts

Legal aid

2010 Total courts: 923 Criminal court: 415 Consisting of magistrates’ courts: 323 and Crown Courts: 92 Other courts: 508 NA 2018 Total courts: 628 % Change 2010–2018: −32% Criminal courts: 245 % Change 2010–2018: −41% Consisting of magistrates’ courts: 161 % Change 2010–2018: −50% and Crown Courts: 84 % Change 2010–2018: −9% Other courts: 383 % Change 2010–2018: −25% HMCTS (15/07/2021a: 5) 340 court ‘buildings’ and 21 ‘administrative buildings’ Remand in custody population (% of total prison population): Source—Table 4, Chapter 3 Court backlogs: Source—MOJ (25/03/2021a Tables M1 and C1)

LAA is regionally based, but works at courts and police station custody suites

NA –

–

Eligibility: Source—Bowcott (26/12/2018) Extent of financial contribution: Source—LSC/ LAA Annual Reports 23/11/2010: 59, 10/06/2015: 72, 21/07/2020: 94 and 22/09/2021: 111 2012 Remand in custody: 11,907 Eligibility: 1949 80% (13.6%) qualified for legal aid, this 2012: Total magistrates and reduced to 45% by the Crown Court backlogs: NA 1990s Contributions to criminal defence 2009/2010 £1.3m (continued)

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Table 3.1 (continued) Year, unless otherwise specified 2014/2015

2019/2020

2020/2021

Courts

Legal aid

Remand in custody: 11,833 (13.8%) Total magistrates and Crown Court backlogs: 382,642 Remand in custody: 10,043 (12.6%) Total magistrates and Crown Court backlogs: 368,885 March 2021: Remand in custody: 12,262 (15.7%) End of 2020 Total magistrates and Crown Court backlogs: 442,440

Eligibility: NA Contributions to criminal case: 2014/2015 £26m Eligibility 2018: 20% qualify for legal aid Contributions to criminal case: 2019/2020 £33m Eligibility: NA Contributions to criminal case: 2020/2021 £15m

Sources: As shown in table a NB Given the ambiguities concerning the definition of ‘courts’, ‘buildings’, ‘premises’ and ‘services’ (see note 17  in Sturge 22/12/2020: 21), the statistics reported by Sturge (22/12/2020: 21) and the House of Commons Justice Select Committee (31/10/2019b: Para 90), which attributes them, in note 145, to an earlier version of the Sturge paper for 2010 and 2018, are recorded here using the term ‘courts’. For completeness HMCTS statistics for 2020/2021 (15/07/2021a: 5) are included for ‘buildings’. They may or may not be comparable to the Sturge/House of Commons Justice Select Committee data

earlier and mostly effecting a continuing reduction in the availability of criminal legal aid, but at the cost of the viability of law firms, defendants’ access to justice, a growing backlog of court cases and the harsher treatment of defendants and/or offenders.

‘Transforming’ Courts We focus here on the court transformation programme implemented in the 2015–2020 period. This programme had two main aims, cost reduction and ‘modernisation’. Neither were near to accomplishment by 2020 (the original completion date, later revised to 2023), but significant problems had been caused, and the impact of the changes introduced by

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2020 was to privilege the move to austerity and contribute to the harsher treatment of defendants. Despite a programme of reductions to the courts estate and changes in court practice introduced by the Coalition government, 2010–2015 (Skinns 2016:62–63), soon after taking office the first of the Conservative governments of the 2015–2020 period announced further cuts (MOJ 16/07/2015b), with the definitive document on the matter being published in September 2016 (MOJ, Chief Justice of England and Wales and Senior President Tribunals). This document set out the reform programme intended for the next four years for the HMCTS, with a vision to ‘modernise and upgrade our justice system so that it works better for everyone’ (MOJ, CJ and SPT September 2016:3). There were two key, related and explicit ambitions of the transformation programme: to save up to £500m between 2015/2016 and 2019/2020 and thus fit into the various austerity plans set out in 2015–2019 period (HM Treasury 27/11/2015, November 2016, 2017 and October 2018) and to modernise ‘outdated systems and paper-based processes’ (NAO 09/05/2018 Para 2, page 5). The ‘Transformation’ programme was supposed to be based on three core principles—it would be—‘just’ (like cases treated alike), ‘proportionate’ (cost, speed and complexity should be proportionate to the scale and substance of the case) and ‘accessible’ (based on procedures that are available and intelligible to non-lawyers), with a target completion date of 2020 (NAO 09/05/2018 and 13/09/2019). The main transformation programme had three main sub-programmes, one entirely dedicated to criminal business and the two others—courts reform and compliance transformation—having implications for the criminal courts. The HMCTS crime ‘common platform [sub] programme’ at a cost of £280m was intended to develop a shared process and a single digital case management system which could be used by the criminal courts, the CPS and the police. This would make possible ‘smarter more joined up and streamlined processes to allow participants to work with the same information’ (NAO 13/09/2019:11). Based on significant improvements to technology and the environment of court hearings, the common platform would enable the HMCTS, Crown Prosecution Service (CPS) and the police to use the same system, from arrest through to court and sentence pleas, provide a streamlined process, and achieve better, swifter

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delivery, fewer delays, better support for witnesses and victims (because of more evidence being gained via video link) and make evidence available, via common platform, sooner. The courts reform sub-programme was aimed at reducing demand on all courts by introducing online services, digital casefiles and expanding the use of video hearings. For criminal business, an important element was the establishment of the single justice service (SJS), online administration and digital case management of court business and the widespread installation of Wi-Fi in courts. In addition, criminal courts were encouraged to work more flexibly and more efficiently by making greater use of electronic documents, by introducing a structured process of online pleading and ‘by holding “virtual hearings” enabling lawyers, parties and witnesses to participate in traditional hearings by telephone and video conferencing. It was noted that ‘This will extend throughout the system, not just the criminal jurisdiction, making courts more convenient for all’ (MOJ, Chief Justice of England and Wales and Senior President of Tribunals September 2016: 8). The third element was the transforming compliance and enforcement programme (TCEP), which was intended to reform the enforcement of fines and compensation payments. Four authoritative documents can help us to assess progress here (NAO 09/05/2018 and 13/09/2019; House of Commons Justice Select Committee 31/10/2019b and the House of Commons Public Accounts Committee 16/07/2018). The comments made in the reports concern the programme as a whole as well as criminal courts more specifically. I will deal with these in turn. Firstly, the ‘transforming’ programme as a whole was seen as extremely complex, especially as it also involved the creation of a complex ICT system, and so was criticised for attempting to achieve too much, too soon (NAO 09/05/2018: Para 7, page 6 and 13/09/2019: Para 6, page 6; House of Commons Justice Select Committee 31/10/2019b, House of Commons Public Accounts Committee 16/07/2018: Para 1, page 5). Indeed, the completion date of 2020 was soon revised at first to 2022 and then 2023 (NAO 09/05/2018 and 13/09/2019). Furthermore, the third sub-programme, TCEP, was suspended altogether in September 2018 and a substantial revision of the surviving programmes was made into ‘Crime; Civil, Family and Tribunal; and Cross-cutting projects and s­ervices’ (House of Commons Justice Select Committee 31/10/2019b: Para 5).

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Secondly, considerable doubts were expressed about whether the primary driver of the change, cost savings, would be achieved by the programme, even by 2023 (NAO 13/09/2019: Para 9, page 6), because of the costs of any reforms matching or even overwhelming any savings. Thirdly, it was noted that the programme had proceeded without enough user-consultation (NAO 09/05/2018: Para 16, page 8; NAO 13/09/2019: Para 12, page 7). Fourthly, the roll out of the programme had been inhibited and uncertainty caused, by delays in introducing primary legislation, for example, for the planned extension of virtual hearings due to the political turbulence of the period (NAO 13/09/2019: Para 3.2, page 33). Fifthly, it was noted that adverse effects in rural and urban areas had resulted from the court estate transformation programme closure of courts (House of Commons Justice Select Committee 31/10/2019b: Para 92), leading the Committee to aver that: Court closures … have created serious difficulties for many court users, with worrying implications for access to justice. We recommend an immediate moratorium on further court closures pending robust independent analysis of the effect of closures already implemented, with a particular focus on access to justice. (House of Commons Justice Select Committee 31/10/2019b: Para 108)

Sixthly, the overall programme had been implemented (particularly, but not exclusively the court closures) with a notable lack of attention to impact evaluation. The House of Commons Justice Select Committee (31/10/2019b: Para 179) noted that HMCTS recognises the value of communication and engagement with its stakeholders in development of the reform programme and the importance of evaluating the programme’s impact. However, our evidence suggested that HMCTS has not engaged well enough with its stakeholders, and that its approaches to evaluation are unlikely to maximise objective scrutiny.

Finally, the House of Commons Public Accounts Committee in July 2018 raised the issue of open justice by questioning whether HMCTS had adequately considered the impact of the reforms on media and

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public access to courts. This report led the House of Commons Justice Select Committee to ‘launch our own inquiry’ on 10 January 2019, focusing on the effects of the reforms on people’s access to justice’ (Para 8). Their conclusion was that: the public resolution of criminal and civil disputes—must not fall by the wayside. HMCTS should, in consultation with the senior judiciary, develop technological solutions to support open justice. We recommend that the senior judiciary convene a working group to consider how to protect and enhance media access to proceedings. The Government should commit to piloting public legal education within its action plan for legal support, with a view to rolling out a national programme by 2022. (House of Commons Justice Select Committee 31/10/2019b: Summary)

Turning now to the impact of the transformation programme on criminal courts, three matters are worthy of particular comment, with one of them becoming of greater concern in 2020, with the new coronavirus pandemic (see Chap. 7). The first matter concerned the impact of single justice procedures and the ability of people to enter online pleas, a process first started in 2018 and then affecting Transport for London and TV license cases only. It was noted that defendants making online pleas might not understand ‘the defences or mitigations that there might be or the implications of acquiring a criminal record’ (House of Commons Justice Select Committee 31/10/2019b: Para 15), the fines and costs involved are imposed without consideration of the ability to pay, the process goes ahead without free legal advice and the whole procedure continues without public scrutiny or media access (see Transform Justice 27/08/2021). Secondly, two significant areas of the programme, not unproblematic in themselves, had their progress delayed, then stalled, by the political turbulence of the period. The third May government 2017–2019 was simply unwilling to put its reduced majority to the test in the Commons. Accordingly, the plans to introduce automated online convictions, as a voluntary option for certain summary, non-imprisonable offences, such as fare evasion, which would allow defendants who decide to plead guilty to opt into an automatic system that would issue an online conviction

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and take payment of a fine, was stalled. The proposal to ‘permit defendants to indicate an advance plea online in more serious cases’ (House of Commons Justice Select Committee 31/10/2019b: Para17) also needed legislation and suffered the same fate. Finally, the transformation programme entailed the widening of the use of video in criminal court cases (House of Commons Justice Select Committee 31/10/2019b Para 71), an issue which assumed an altogether greater importance during 2020 the new coronavirus pandemic (see Chap. 7). To clarify the terminology here, the use of video in courtrooms can take the form of ‘video-enablement’ where ‘only one party participates remotely and all other participants are co-located in a courtroom’ or it can go much further and video is used to allow ‘all parties to participate in a court or tribunal hearings remotely’ (House of Commons Justice Select Committee 31/10/2019b—evidence provided by Dr M Rossner CTS0029 1/10/2019: item 2.1). I will subsequently refer to the matter as remote working. The move to remote working involved five issues. Firstly, a lack of symmetry between the enormity of the proposed change and the tiny research base available to provide guidance, resting on, in 2016, only one study, with only two more being conducted between 2016 and 2020. Secondly, increasing concerns that the change would not reap the reduced cost benefit that was claimed. Thirdly, access to justice concerns connected to video-enabled magistrates hearings leading to differential outcomes (video enablement leading to more custodial sentences) and defendants being less likely to be legally represented in such hearings and that, even for those who were represented, communication between client and lawyer being made more difficult (Terry et  al. 2010). Thus, the HMCTS ‘had not taken sufficient steps to address the needs of vulnerable users’ (House of Commons Justice Select Committee 31/10/2019b Court and Tribunal Reform Para 80). Fourthly, the transparency or openness of the proceedings were questioned, given that external observers could not readily gain access to the proceedings (House of Commons Justice Select Committee 31/10/2019b: Paras 167–8). Finally, it became increasingly apparent that there was a gulf between the demands of a remote court service and the technological functionality that the HMCTS could actually deliver, as was revealed by the later

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study by Rossner and McCurdy (2018 and July 2020), who found that some 6 of the 23 observed tax tribunal hearings were unable to proceed because of technical faults. The House of Commons Justice Select Committee (31/10/2019b: Para 18) also found evidence of damaging lack of technological functionality connected to technical unreliability, poor quality equipment with poor camera and screen angles, and that this created barriers to effective communication, the lack of an ability to read body language, the lack of ability to develop and maintain relations between solicitors and clients, ‘especially if vulnerable because of physical or mental ill-health, substance dependency, or language/literacy barriers’ (House of Commons Justice Select Committee 31/10/2019b: Para 67). Accordingly, the House of Commons Justice Select Committee (31/10/2019b:Para 71) concluded that ‘We are concerned by evidence suggesting that some defendants appearing by video link face communication barriers with the court and their legal representatives, and that there appears to be no guidance on facilitating participation’. Overall the ‘transforming’ courts programme has experienced many problems, and as a result is unlikely to be completed by even the revised 2023 target, deliver the cost savings that were its central raison d ’etre and avoid impacting negatively on access to and the openness of justice. It thus contributed to the A-O-P penal policy package by enforcing austerity and acted to make the experience of courts users harsher. It was introduced in an arbitrary manner which lacked adequate consultation and evaluation.

Outsourcing Financial Penalty Debt Enforcement Court financial impositions have a number of weaknesses, not least the surplus, counter-productive economic marginalisation they impose on offenders. From the point of view of the courts their significant weakness is though, the difficulty of persuading, cajoling or compelling offenders to make the required payments. The Coalition government attempted to deal with enforcement in various ways aimed at making the ability of the offender to pay more transparent. In 2013, the Coalition also sought to outsource the enforcement process, with the process nearly reaching

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fruition when in January 2015, there was an announcement that one company was the preferred bidder for debt collection contracts. Since 2015 successive Conservative governments have engaged in two policy U-turns, taking them back to a position the same as that adopted by the Coalition, the whole process taking some four years and ending by privileging outsourcing once again. Privatisation or outsourcing may be understood as any temporary or permanent transfer of assets or functions from the public to the private sector. In the penal realm, privatisation has taken the form of temporary transfers of functions, and to a lesser extent assets, to for-profit private companies for an agreed period. It began with court security and prisoner escort in the 1990s followed later by the electronic monitoring of curfews (Nellis et  al. 2012). Whole prisons have been contracted out, and by 2015, some 14 prisons were run by private contractors (MOJ/NOMS 11/06/2015:11). In addition, over a lengthy period, prison services have been privatised in a piecemeal way, including healthcare, catering and prison estate maintenance (Skinns 2016:103–104). Probation services were part-privatised in 2015 (Skinns 2016:152–163). The Coalition government 2010–2015 placed greater emphasis on and expanded the use of financial impositions, and this led to a perceived greater need to improve enforcement. Following the ‘logic’ that private knows best, Chris Grayling, the then Minister of Justice, put out tenders for fine enforcement to private contractors in 2013 and the bidding process was brought to a close, eventually, as noted above, in January 2015, with one company identified as the preferred bidder. But then the general election intervened. In October 2015, the first U-turn happened when this arrangement was quietly abandoned because, it was stated, a one-contractor solution was no longer the preferred option on the grounds that it did not meet MOJ requirements, provide best value for money and meet MOJ procurement law. Instead, it was suggested that although there still remained a need to reform HMCTS procedures, this could be best achieved by ‘in-house modernisation’. In 2014, the total amount collected in-house was £550m (Hyde 15/10/2015). This first U-turn was not based on a loss of confidence in privatisation but conditioned by increasing concerns about private debt enforcement practices, with the Coalition

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government, in 2014, making a number of reforms including new procedures covering fair debt recovery by bailiffs, newly standardised fees, a requirement to be registered as an enforcement agent and mandatory training for enforcement agents (House of Commons Justice Select Committee 11/04/2019a). A review report on the changes was promised, but in the event it was not published until April 2018. It indicated that some positive effects had resulted from the reforms, but that certain persistent problems remained, in that debt advisors and debtors still perceived some enforcement agents to be acting aggressively and in some cases not acting within the regulations. As a result, two separate investigations were started. The MOJ undertook a further call for evidence from November 2018 to February 2020 and the House of Commons Justice Select Committee undertook an investigation starting in December 2018. The inquiry by the MOJ had not produced a report by December 2021. In contrast the House of Commons Justice Select Committee report was published in April 2019 (11/04/2019a). The House of Commons Justice Select Committee report recognised the continuing problems and recommended that an independent body was needed to deal with complaints once they had been initially considered by the firm involved, that there was a need to establish an independent regulator for the industry, that there was a need for the newly established regulator to review fees and that all enforcement agents should use body-worn cameras. In July 2019, it was announced that the MOJ would take action to make body-worn cameras mandatory to ensure debt is collected in a fair and safe manner—with those who fail to do so held to account. It was also announced that to improve industry standards and better protect clients a new 60-day ‘breathing space’ for people struggling to cope with debt would be introduced—during which creditors would not be able to chase payments and individuals must seek professional advice. However, the then Under-Secretary of State for Justice, Paul Maynard, indicated that the government was only ‘looking… at other measures to improve the system’, whilst also promising the publication of the report based on the call for evidence between November 2018 and February 2019 (MOJ 27/07/2019d).

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David Gauke, the then Minister of Justice also in July 2019, indicated that the government was ‘pushing forward with a reform package to make sure that people do not face aggressive action from enforcement agents and to improve trust in the industry as a whole’ and considering how to make ‘the complaints system more effective, transparent and independent’ and how to introduce ‘independent regulation of enforcement agents’. He once again promised the publication of the review (David Gauke 22/07/2019). But both Maynard and Gauke lost office in July 2019, with the formation of the first Johnson administration. The promised report had still not been published, when the second U-turn occurred, in November 2019, just before all government business ceased due to general election-­ imposed purdah. Five-year contracts were awarded to approved enforcement agencies (AEAs) to three companies (some already involved in enforcement) covering the whole of England and Wales. The AEAs were due to begin work in England in September 2020 and Wales by April 2021 (HMCTS 01/09/2020b). The contracts allowed the companies, as AEAs, to enforce debt recovery in relation to unpaid criminal financial impositions and arrest people for non-payment (MOJ 05/11/2019f ). Such a move drew fierce criticism, not the least because placing powers of arrest with private debt collecting companies ‘involves a serious infringement of a person’s liberty so to put this entire function in the hands of private contractors with a primary motive of profit not social justice, is a cause of considerable concern’ (Plimmer 10/11/2019). Overall, the double U-turn meant that the direction set by the Coalition government on this matter was followed leading to the outsourcing of debt collection, in the context of grave doubts and so far unresolved issues, concerning the operation of debt recovery companies.

Sentencing Two main elements are dealt with here, custodial and community sentences. Both are concerned with the plans to toughen such measures, contributing to a move to punishment, especially incapacitation.

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‘Toughening’ Custodial Sentencing Successive Conservative governments have provided an impetus towards harsher, more punitive treatment by toughening custodial sentencing although this tended to be undertaken mostly in the latter part of the period, with the exception of government acceptance of increasing harshness of courts when sentencing. Policy took four main forms, including reducing the extent of automatic early release, increasing prison sentence lengths, acceptance of harsher court custodial sentencing practices and the retention of short prison sentences, all of which contribute to punitiveness and a fixation on imprisonment.

 educing the Extent of Automatic Early Prison Release R for Some Serious Offenders Developments here were restricted to the later period and occurred in two phases, one of which still remains unfinished and is considered in Chap. 7. The position in May 2015 on this issue was that most offenders serving standard fixed-term sentences were eligible for automatic early release at the half-way point of the sentence; offenders serving extended determinate sentences, entailing a period of imprisonment combined with an extended period of supervision, were not eligible for automatic early release but could be released with Parole Board approval after they had passed the two-thirds point of the sentence and would only obtain automatic release after the expiry of their sentence; finally, the tariff for discretionary life sentences was also subject to early release, in that, such prisoners became eligible for consideration for parole at the half-way point of their tariff. In addition to the above, many prisoners serving four years or less were eligible for an extra sentence discount involving Home Detention Curfew of up to 135 days. The first Tory governments of the 2015–2020 period were largely silent about the topic of early release. In contrast, the first and second Johnson governments staked out the area as in need of attention as soon as they took office and they made the pledge to end ‘automatic half-way early release for serious offenders’ in the 2019 general election manifesto.

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Impetus, focus and popularity were added to this pledge, when two deadly, terrorist incidents occurred (at the time of the election in November 2019 and again in February 2020), both involving prisoners who had previously obtained early release from fixed-term sentences. These events led to the first initiative, with the Terrorist Offenders (Restriction of Early Release) Act which became law on 26 February 2020 being rapidly pushed through parliament. It made a number of changes, all applying to terrorist offenders (where terrorism may be understood to be any action, perpetrated in the UK or elsewhere, which attempts to influence the government or intimidate the public to advance a political or ideological cause, by the use or threat of use of serious violence to people or damage to property HM Government February 2020; Sections 1–3 Terrorism Act 2000). The logic behind it was that it would ensure that for adult, terrorist offenders, the time served would better match the seriousness of the offence, as well as providing some greater protection from the risk that such offenders present to the public. The Act removed the possibility of early release altogether for those serving extended determinate sentences and, for terrorist offenders serving determinate sentences, made their early release discretionary and shifted the point when early release was possible from the half-way to the two-thirds point of the sentence. A number of issues were raised by the Act. The act had retrospective application which meant that it was criticised for potentially breaching the ‘reasonable expectations’ of release by the offender, based on the judge-explained sentence at the time of sentencing and breaching the European Convention of Human Rights (ECHR) expectation that there should be ‘no punishment without law’, as when the offender was sentenced this law did not exist. Also, because early release would no longer be automatic for this type of offender, responsibility would fall on to the Parole Board for making release decisions in the last third of the sentence, exposing the Board to yet further reformist zeal. Thirdly, because offenders would be released into the community, this raised questions about how such clients could be managed and led to reliance on mandatory polygraph tests to determine the on-going commitment of the paroled offender to the avoidance of terrorist activity. But this raised serious questions about the validity of such testing. Finally, the speed with which the

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bill became law was remarkable, in effect 15 days. This raised questions about the thoroughness of the process and the role allocated to parliament in law-making. In this first wave up to March 2020, there was a parallel Sentencing Bill which proposed dealing with adult, non-terrorist serious, violent or sexual offenders, in order that the time served would better match the seriousness of the offence, as well as providing some greater protection from the risk that such offenders present to the public, and would ensure that they are ‘properly rehabilitated’, moving the earliest point for automatic release from half-way to the two-thirds point of the sentence. The Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order, a statutory instrument, provided that sexual or violent offenders serving fixed-term sentences of seven or more years would have their release point moved from the half-way to the two-thirds point of their sentence and their release would be discretionary not automatic. Overall, it must be noted that the Johnson governments fulfilled part of their manifesto pledges to limit the automatic early release of terrorist and serious, violent or sexual offenders, in this the first wave of change, with the rest depending on the outcome of the Police, Crime, Sentencing and Courts (PCS&C) bill (see Chap. 7). The provisions enacted will affect relatively small numbers of prisoners (in the case of terrorist offenders the government’s estimate is 50). The provision made is consistent with stated Conservative penal philosophy and contributes to a punitive trend, albeit one evident in practice mainly only towards the end of the period at issue.

Lengthening Prison Sentences for Some Serious Offenders In this section, I will deal with three matters—the introduction of longer prison sentences for terrorist and other serious offenders, the extension of whole-life orders for adult and young adult ‘child murderers’ and the failure by government to act to prevent de facto increasing average custodial sentence lengths for fixed-term sentences and increasing tariffs for life sentences. All contribute to punitiveness and are consistent with Tory penal philosophy, albeit, with the exception of the de facto changes made by courts, left until late in the period.

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Lengthening Prison Sentences for Terrorist and Other Serious Offenders In keeping with the tenor of the review ordered by the Prime Minister (MOJ 12/08/2019e) despite the fact that few volunteered to participate in this review, the government pressed ahead with its sentencing for serious offenders. Policy here followed the pattern of two waves (for the second wave see Chap. 7). The first wave included the Counter Terrorism (Sentencing and Release) Act May 2020 which made provision for ‘[t]ougher sentences for the most serious terrorist offenders and a 14-year minimum for the worst terrorist offenders’.

Extending Whole-Life Sentences for Child Murderers Up to 2012, there were four types of indeterminate prison sentence available to courts—whole-life sentences, mandatory and discretionary life sentences and Imprisonment for Public Protection (IPP). LASPO 2012 abolished IPP sentences but did not rescind the sentences for existing prisoners. In 2015, there were 59 whole-life prisoners (54 in prisons and 5 in secure hospitals, MOJ 28/04/2016b), 7447 prisoners serving a mandatory or discretionary life sentence and 4756 prisoners serving IPP sentences (see Table 3.4, in this chapter). Indeterminate sentences, in contrast to fixed-term sentences, have no predetermined end-point. Instead, the trial judge determines a tariff, before which applications for parole cannot be considered, with the actual length of the prison term, beyond the tariff point, being ­determined by the Parole Board. Normally then, once the tariff period has expired (or the half-way point has been reached in the case of discretionary life sentences), it is expected that a life or IPP sentence prisoner will be considered for release and may even be released from prison. This is not so for whole-life prisoners. Their tariff set by the trial judge is life, meaning that their term of imprisonment will last until they die. The Criminal Justice Act of 2003 (section 269 and Schedule 21) regularised existing practice on this matter and has been variously amended since. Its provisions normally limited the imposition of whole-life sentences to a number of

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non-exhaustive circumstances, involving ‘the murder of two or more adults in aggravated circumstances (a substantial degree of premeditation, or the abduction of the victim, or sexual or sadistic conduct), the murder of a child if involving the abduction of the child or sexual or sadistic motivation, a murder done for the purpose of advancing a political, religious, racial or ideological cause, or a murder by an offender previously convicted of murder’. The Conservative Party General Election Manifesto (November 2019:18) stated that as part of ‘making our country safer’ and ‘our plan to cut crime’, ‘for child murderers there will be life imprisonment without parole’. This was followed by the Sentencing Bill which proposed extending the range of circumstances where the starting point for the sentence in cases of murder is a whole-life order, particularly focused on those who have murdered children. The Justice Secretary elaborated on this by saying that ‘only adults aged 21 and over—who commit the “premeditated” murder of under-16s—would be subject to whole life orders’ under the proposed provision, and the Conservative Party later claimed that the current law was ‘too restrictive’ in that it only made whole-life terms the starting point for judges in cases if a murder was of multiple children or involved sexual or sadistic conduct. But, as journalist Lizzie Dearden made clear in ‘The Independent’ (19/11/2019), ‘the law only says that the offence must be of an “exceptionally high seriousness” to meet the threshold, and gives those factors in a non-exhaustive list of examples’, as indeed the recent sentencing of the sacked metropolitan police officer for kidnapping, rape and murder of Sarah Everard to a whole-life order in September 2021 demonstrated (Dodd and Siddique 30/09/2021). And here the matter rested until developments during the pandemic (see Chap. 7).

De Facto Harsher Custodial Sentencing A further aspect of custodial sentence toughening evident in the period 2015–2020 are the de facto sentencing changes, which have failed to spark a response from government and therefore must be understood as being part of government policy. The changes also show the weakness of

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the Sentencing Council to stem these developments. The changes discussed here have four main aspects, static imprisonment rates, increasing Average Custodial Sentence Lengths (ACSLs) for fixed-term sentences, increasing tariff lengths for life sentence prisoners and continuing frequent use of indeterminate sentences. Table 3.2 (in this chapter) shows that the proportion of convicted offenders given immediate custodial sentences has remained relatively static in the 2010–2020 period (all offenders: 2009/2010 7.1%; 2014/2015 7.4%; and 2019/2020 6.5%; indictable offenders: 2009/2010 71%; 2014/2015 73.7%; and 2019/2020 71%). So during the whole period people appearing before the courts had more or less the same likelihood of immediate custody, failing to reverse the trends that had occurred in the 1993–2015 period (Ashworth and Roberts 2016). As noted above England and Wales also makes much more use of imprisonment than many other countries. The decision to imprison a convicted offender for a fixed term is a complex product of maximum (and in some cases minimum) sentences laid down in existing legislation, general regulations concerning offences so serious that custody is justified and a community sentence inappropriate, individual court’s on-going, discretionary decision-making and any local sentencing cultures and, since 2010, the sentencing guidelines, which are, in turn, a joint product of the Sentencing Council decisions as expressed in drafts and government and House of Commons Justice Select Committee inputs to the finalised guidelines. The Sentencing Council which began work in 2010 had a threefold task: to produce generic guidelines, with four of these produced by 2016 (e.g. one of them deals with sentencing reductions for guilty pleas), guidelines for specific offence categories (11 of these had been produced by 2016, with a view to producing guidelines for all main offence categories by 2020) and an assessment and monitoring role concerning the impact of the guidelines. It is impossible, without detailed research on the matter, to distinguish the relative influence of all the different groups who exert influence on sentencing decisions. It is clear that for whatever reason greater punitiveness is the outcome. This may be because the draft guidelines allow it, it

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Table 3.2  The percentage of convicted offenders sentenced by type of offender and disposal in England and Wales 2009/2010, 2014/2015, 2019/2020 and 2020/2021 Year and offence type 2009/2010 Indictable offenders Either way offenders Summary non-­motoring Summary motoring All offenders 2014/2015 Indictable offenders Either way offenders Summary non-­motoring Summary motoring All offenders 2019/2020 Indictable offenders Either way offenders Summary non-­motoring Summary motoring All offenders 2020/2021 Indictable offenders Either way offenders Summary non-­motoring Summary motoring All offenders

Immediate custody (ACSLa) SSO

CO

71.0 (36.8)

8.6

18.3

0.4

0.2

1.3

100

20,099

21.4 (12.5)

9.8

33.0 18.2 13.4

0.6

3.6

100

30,8775

2.9 (2.6)

1.8

13.0 71.4

8.8

0.7

1.3

100

509,864

0.9 (3.2)

0.9

3.4 92.6

1.4

0.2

0.6

100

559,479

7.1 (13.7)

3.3

13.7 67.1

6.8

0.5

1.5

100

1,398,217

73.7 (53.7)

11.5

11.5

0.4

0.1

2.6

100

14,597

24.6 (13.1)

14.5

21.2 20.1 13.8

1.1

4.8

100

263,120

2.8 (2.5)

2.3

9.5 75.7

7.9

0.7

1.1

100

463,750

0.5 (3.0)

0.8

2.0 95.6

0.8

0.01

0.3

100

483,453

7.4 (15.9)

4.4

9.1 70.7

6.3

0.5

1.6

100

1,224,920

71.0 (59.0)

10.0

14.2

0.6

0.5

0.04

3.7

100

12,702

30.2 (16.5)

15.7

21.9 18.7

9.0

1.1

3.5

100

184,361

1.7 (2.6)

1.3

6.1 84.9

4.8

0.6

0.7

100

428,742

0.6 (2.9)

0.7

2.8 94.9

0.5

0

0.4

100

531,357

6.5 (19.6)

3.4

7.2 78.0

3.4

0.4

1.1

100

1,157,162

65.7 (52.3)

13.4

16.7

0.8

0.6

0.06

2.7

100

10,573

30.2 (16.3)

18.8

20.0 18.7

7.9

1.0

3.4

100

144,916

3.2 (2.7)

2.5

9.3 76.5

6.6

1.1

0.8

100

188,861

0.6 (2.8)

0.9

2.6 95.1

0.5

0.4

0.4

100

421,399

7.8 (18.6)

4.8

7.8 74.5

3.4

0.5

1.1

100

766,248

AD/ Fine CDb 0.2

0.2

Other Total Total Compc disposals % number

ACSL = Average custodial sentence length b Absolute or conditional discharge c Compensation order Source: Adapted from MOJ (19/08/2021e) Criminal Justice Overview Tables— Table 5.1a a

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could be something introduced by the influence of government on the finalised guidelines, it might be a by-product of other aims like consistency and it could be that it results from the discretion that courts retain under the system in England and Wales. But in any case the Sentencing Council has not been able to act as a brake on the punitive trend and according to Allen (December 2016) may even have acted as an accelerator towards punitiveness, because of its changed terms of reference, from a concern to establish ‘a more effective, integrated and transparent process that reconciles prison capacity with criminal justice policy’ (Carter Review Report 2007) to ‘promoting greater transparency and consistency in sentencing whilst retaining the independence of the judiciary’ (answer to an FAQ on the Sentencing Council website accessed September 2020) and its unwillingness, as it sees it, to get involved in penal policy-making. Although there is some evidence that greater consistency has been achieved (Pina-Sanchez and Linacre 2013; Irwin-Rogers and Perry 2015), this has been at the cost of a failure to address the emerging punitive trend and has meant that the Sentencing Council has been, as Frase (2013) noted, norm reinforcing rather than norm changing. ACSLs significantly increased for indictable and triable either way offenders during the 2009/2010 to 2019–2020 period. For indictable offenders from 36.8 months in 2009/2010 to 53.7 months in 2014/2015 to 59.0 months in 2019/2020 and for triable either way convicted offenders, the ACSL increased from 12.5 months in 2009/2010 to 13.1 months in 2014/2015 to 16.5 months in 2019/2020 (see Table  3.2 in this chapter). By 2015 there were three forms of life sentence, whole-life orders and mandatory and discretionary life sentences. Mandatory life sentences are imposed when an offender has been convicted of murder and discretionary life sentences and can be imposed when an offender has been convicted of serious violent or sexual offences short of murder. When a prisoner is given an indeterminate sentence, a tariff is imposed by the trial judge, with mandatory ‘lifers’ having to serve the tariff period before being considered for release and discretionary ‘lifers’ having to serve one half of the tariff before being considered for release (subject to any provisions made under the PCS&C Bill 2021—see Chap. 7).

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The somewhat patchy evidence available suggests that judge-imposed tariffs on mandatory life sentence prisoners at least have increased significantly in 2005–2016 as shown by Table 3.3 in this chapter. The abolition of IPPs in 2012 may seem like that there was a move away from tough sentencing and, in particular, the use of indeterminate sentences. Certainly, the 2011–2020 period has witnessed a decrease in the total number of indeterminate prisoners in England and Wales from some 13,836 in March 2012 to 12,203 in 2015 and 9110 in 2020 (see Table 3.4 in this chapter). However, this position is undermined when the following matters are considered. Firstly, rather than seeing the reduction of prisoners serving IPP sentences as a sign of moving away from tough sentencing, it has to be noted that the reduction of the IPP group in the prison population has been extremely gradual (even eight years after abolition there were 2039 such prisoners) and only achieved by many of them being incarcerated well past their tariff points and contributing to general notion of the toughness and unfairness of the system (see Chap. 5). For IPP prisoners, the average time served in 2010 was four years, this rose to seven years in 2015 and nine years in 2018 (see MOJ 25/04/2019b Prison releases 2018 Table A3.3). Table 3.3  The average judgeimposed tariff imposed on offenders convicted of murder, in England and Wales, 2005–2016

Year

Average judge-imposed tariff length in years

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016

16 17.6 16.3 18.9 18.3 19.2 19.3 20.6 21.2 20.7 21.1 21.3

Source: UK Parliament (23/10/2017)

47,549

47,058

Other determinate

21,880 63,240

6473

NA NA

BAMEb Whiteb

3866

7869 (9% of prison population)

4218

Women

81,798

Determinate, less than 12 months

83,313

Men

85,664

72,036

87,531

Total prison population

2015

Total sentenced 74,402 prison population by sentence type:

2012

Characteristic

48,712

6435

73,925

21,879 63,045

3826

81,615

85,441

2016a 2012–2020: −5% 2015–2020: −3% 79,367 2012–2020: −5% 2015–2020: −3% 3623 2012–2020: −14% 2015–2020: −6% 22,425 2015–2020: 2% 59,946 2015–2020: −5% 72,187 2012–2020: −3% 2015–2020: 0.2% 4393 (5.3% of the 2012–2020: prison popualtion) −44% 2015–2020: −32% 49,705 2012–2020: 6% 2015–2020: 5%

82,990

2020

% Change 2012–2020 and 2015–2020

43,081

3721

64,783

22,036 56,022

3166

74,942

78,058

2021

−13%

−15%

2020–2021: −10%

−2% −7%

−13%

−6%

−6%

% Change 2020–2021

Table 3.4  The prison population in England and Wales, in the 12 months to 31 March 2012, 2015, 2016, 2020 and 2021

68  C. D. Skinns

10,066

1450

95 614

6564

11,505 (IPP: 4133 and Life: 7372)

10,043

760

46 476

8933

9110 (IPP: 2039 and Life: 7071)

8738 (IPP: 1705 and Life:7033)

2012–2020: −38% 2015–2020: −58% 2012–2020: −16% 2015–2020: −15%

12,262

1013

2012–2020: 62% 9182 2015–2020: 57% – 26 – 485

2012–2020: −34% 2015–2020: −25%

b

a

First full year of year-long license requirements for released short sentence prisoners Not all prisoners declared their ethnicity Sources: Adapted from MOJ (25/04/2013, 27/10/2016d, 29/10/2020e, 29/04/2021b and 29/07/2021d)

11,833

1222

11,907

1795

127 –

Fine default Sentence not recorded Total non-­criminal prisoners

Total remand

119 –

5512

Recall

12,203 (IPP: 4756 and Life: 7447) 5692

13,836 (IPP: 7750 and Life: 6086)

Indeterminate

22%

33%

– –

3%

−4%

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Secondly, life sentence prisoners, differentiated from IPP prisoners, have remained at about the same level in prisons in England and Wales, throughout the 2015–2020 period (about 7000 or 8% of the prison population) (see Table 3.4 in this chapter). Thirdly, there has been a marked increase in time actually served by both mandatory and discretionary life prisoners. In 2002, the average time spent in prison was 14 and 9 years, respectively; this had increased to 16 and 11 years, respectively, by 2010 and 17 and 17 years in 2018/2019 (see MOJ 25/04/2019b Prison releases 2018 Table A3.3). Finally, comparing the position of England and Wales on life imprisonment with other European countries suggests that England Wales in 2018 firstly, made much more use of life imprisonment than many other European countries (Council of Europe April 2017 Table 7.1 page 92) and secondly, it made much more use of imprisonment generally than many of its European counterparts (Council of Europe 2018 Table 2.1 page 30). As the PRT noted in 2018 ‘England and Wales ha[d]… more people serving life sentences than Germany, Russia, Poland, the Netherlands and Scandinavia combined—the highest in Europe by a considerable margin’ (Bromley Briefing Prison Fact File Winter 2019: 28). Taken together, the reduction of early release, the extension of custodial terms, for some offenders, and the failure to respond to de facto harsh custodial sentencing are consistent with government penal philosophy and stated aims and shifted policy towards greater punitiveness.

The Retention of Short Prison Sentences Short prison sentences are defined here as being of less than one year in duration. Table  3.5 (in this chapter) reveals that in 2011/2012 short ­sentence prisoners made up 59% of all first prison receptions, rising to 71% in 2015/2016 and 75% in 2019/2020. Those serving short prison sentences tend to be a relatively small, but significant, proportion of the prison population at any one time (between 9% in March 2012, falling to 5.3% by March 2020—see Table 3.4 in this chapter) but they contribute very significantly to prison flows and tend to consume a disproportionate amount of court, court escort and prison resources and contribute

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Table 3.5  Prison first receptions of all sentenced prisoners in England and Wales, in the 12 months to 31 March 2012, 2016, 2020 and 2021 Type of first reception prisoners

2012

2016a

2020

2021

Total first reception sentenced prisoners Male No. and %

89,826 82,246 92% 7,583 8% 43,678

41,283 36,402 88% 4881 12% 25,293

31,302 27,689 88% 3613 12% 20,240

19,792 17,907 90% 1885 10% 11,656

8956

4095

3157

2574

Female No. and % Total first reception sentenced prisoners: imprisoned for less than six months Total first reception sentenced prisoners: imprisoned for six months to one year Total first reception short sentence prisoners Total other sentenced first reception prisoners % Short sentenced prisoners of all such first reception sentenced prisoners

52,634 29,388 23,397 14,230 37,192 11,895 7905 5562 59 71 75 72

Counting methods changed after 2014/2015 Sources: Adapted from MOJ 25/10/2012 Table 2.1a and b, 28/07/2016c Table 2.1, 30/07/2020a Table 2.1 and 29/07/2021d Table 2.1 a

disproportionately to dysfunctional prison churn (i.e. frequent movement of prisoners in and out of prison). Short sentence prisoners tend to be concentrated in local prisons, where the whole sentence is most likely to be served. As we note in Chap. 4, local prisons tend to be the jails that experience the most intense difficulties, due to a mixture of greater overcrowding and churn, and under-investment. Conservative governments between 2015 and 2020, aside from a short and inconsequential policy interregnum between 2018 and 2019, have echoed their Coalition predecessors 2010–2015 and replicated a consensus on the continuing need for short prison sentences. Governments retained short prison sentences as a policy necessity, as they saw them as providing a resource to courts. Courts saw them as a sentencing necessity needed to both protect the public by imposing, very temporary, forms of incapacitation on some, relatively petty, but persistent offenders and match the seriousness of an offence (including ‘knife crime, theft, burglary, and drugs offences’) with the harshness of an, albeit short, custodial penalty. For example, in October 2019 Justice Secretary, Robert Buckland, indicated to the House of Commons Justice Select Committee that the

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government would not be proceeding with any attempt to limit the availability of short prison sentences as suggested in the short interregnum associated with Buckland’s predecessor, David Gauke, on the grounds that Buckland’s own experience as a recorder informed him that short prison sentences were a ‘reluctant necessity’ (Hymas 16/10/2019; Hyde 01/10/2019). Subsequently, during the 2019 general election campaign, the Tories criticised Labour plans to do exactly what David Gauke proposed in July 2019, to introduce a presumption against the court use of short prison sentences of under six months, on the grounds that it would risk public safety (Vote Conservative Campaign 05/12/2019). The opposing view suggests that short prison sentences are an expensive way of exacerbating offending behaviour having, also, significant negative consequences for the operation of prisons, especially local prisons, in terms of overcrowding and churn. Short prison sentences do not act to deter offenders (the reoffending rates are much high than community sentences; MOJ/Eaton and Mews MOJ 2019); they do not effectively incapacitate offenders given their brevity (sentence length has to be restricted by considerations of proportionality); they fail to fulfil desert considerations as most offenders sentenced to short prison sentences have not been convicted of violent offences, with some 84% of female offenders given short prison sentences having committed non-violent offences (PRT February 2017); and do not contribute much to the rehabilitation of offenders given that their brevity gives no time to work on alcohol, drug or mental health problems and the material impact of incarceration separates the offender from potential desistance-positive experiences like family contacts and exacerbates desistance-negative experiences like disruption to employment and accommodation. Comparative evidence, from Scotland and Western Australia, suggests that short prison sentences are by no means policy or sentencing ­necessities and that change is indeed possible, but also that attempts to introduce a presumption against or a ban on short prison sentences have unwanted effects and are simply impossible without significant attention being given to the expansion of the range and type of community sentences (Scottish Justice Committee Report June 2019:16: Eley et  al. 2005:66).

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The trajectory of policy has seen government retain short prison sentences at almost any cost, but also to become more amenable to arguments, not about presumptions against or bans on short prison sentences but the provision of toughened community sentences together with exhortations to courts to use short prison sentences less (see Chap. 5). Government policy has been largely able to fulfil its main aim, the retention of short prison sentences. This is consistent with their penal philosophy but ignores deep-seated issues which means that the continued existence of these sentences feeds the revolving prison door and, as we will see in Chap. 5, leads to bolt-on year-long license conditions for such prisoners that are counter-productive and damaging. The net result of policies on short prison sentencing contributed to greater punitiveness (by imposing imprisonment when appropriate community sentences were commensurate with offence seriousness) and further entrenched the revolving door of the prison and thus distracted from rehabilitation.

‘Toughening’ Community Sentencing We finally consider Conservative government sentencing policies in relation to community penalties and the supervision of released prisoners on licence. This means critically examining the acceptance of previous punitive policies, as well as considering active policies which allow for apparently tougher, smarter and more credible community sentences and a wider sentencing role for financial impositions, all of which contribute to the further move to punishment.

Preserving the Punitive Status Quo During five years of office of the successive Conservative governments, little has been done to mitigate the emphasis on punitive, community sentencing. No attempt has been made to repeal Part 1 Schedule 16 of the Crime and Courts Act 2013, which imposed a duty on courts, when making a community order, to include in the order at least one punitive requirement, unless there were exceptional circumstances applying to the

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offence or the imposition would be contrary to justice. Similarly, despite the evident difficulties (see Skinns 2016, and Chaps. 5 and 6 below), no attempt has been made to reduce the year-long licence requirements imposed on prisoners released from short sentences (see also Chap. 5).

Introducing More Punitive and Incapacitative Measures Rather than mitigating the move to punitiveness, successive Conservative governments in the 2015–2020 period have been concerned to extend its influence and have done so by trying to make community penalties tougher, smarter and more credible, mainly by extending the role of incapacitation. The drive to make community sentences tougher, smarter and more credible with the courts and the public has only been extensively mitigated by a mixture of technical failure, poor handling of contracts and political turbulence and has resulted in many of the new measures only becoming available to courts relatively recently. The net result has been that the reputation of the probation services with courts has been put at risk, probably accounting for the reduction in the proportional use made by courts of community orders (COs) (as shown in Table 3.2 in this chapter). The trials and tribulations of the period will be illustrated by making reference to the development of sobriety tags and Global Positioning System (GPS)-enhanced tags. The limited attempt to enhance rehabilitation will be considered in the light of the attempted rehabilitation of community and suspended sentence order treatment requirements with the courts.

Sobriety Tags Community order provision was transformed for courts by the Criminal Justice Act 2003, from a number of discrete orders—community service, probation—into one order with a number of pick and mix requirements. By 2015, courts could pick from a list of 14 separate requirements. Eleven of these did not include ‘treatment’ but did include exclusion, curfew, residence, alcohol monitoring, unpaid work, programme, activity,

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prohibited activity, supervision, attendance centre and foreign travel prohibition requirements. Legal provision was first made for an alcohol abstinence monitoring requirement (AAMR) to the then existent community order requirements by Section 76 of LASPO in 2012. The order required abstinence from alcohol for a fixed period of up to 120 days and allowed for monitoring by electronic (using transdermal tags) and other means. Sobriety tags were seen as a way of making this community requirement tougher (no assistance was offered with alcohol issues except breach if the order was broken), smarter (with tags being deployed to remotely monitor alcohol levels) and more credible (if the tag worked it would enable appropriate enforcement of the order). The first use of the AAMR was made in 2014 connected to a pilot project using transdermal sobriety tags in London that was supported by the then London Mayor, Boris Johnson. The pilot was extended to the North East of England and repeated in London in 2017, with the scheme in both areas running until 2019. However, the plan to extend the scheme nationwide and allow all courts to make use of sobriety tags was cancelled in 2017 by the second May government. It was restored as a policy aim in July 2019, when Boris Johnson became UK Prime Minister, with the scheme being finally extended nationally in May 2020 during the coronavirus pandemic, making the disposal in principal at least available to all courts. The delay of the national scheme has been a matter of comment in parliament raised by Bambos Charalambous, MP (UK Parliament 02/03/2020), and seems to be explicable by reference to internal Tory party conflict and the disrupted political terrain of the period.

Global Positioning System (GPS)-Enabled Electronic Monitoring GPS-enabled electronic monitoring also seemed to be capable of being tougher, smarter and more credible with courts and the public than the original form of electronic tagging. Any kind of electronic tag, since its rationale was that the offender would be incapacitated by being required to remain in the designated premises, depended on the curfew requirement of community and suspended sentence orders (COs and SSOs).

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The Coalition government not only expanded the time range of these (the limits per day were raised from 12 to 16 hours per day, and the overall length a curfew could be in force was raised from 6 months to 12 months), but also made curfews available to enforce any of the other requirements (LASPO 2012). More recently, the PCS&C Bill of March 2021 proposed the extension of these limits from 16 hours to 20 hours a day and from one year as an overall limit for the order to two years (Home Office March 2021). Electronic tagging when it was first introduced in the 1990s represented a tougher, smarter and more credible sentence. However, by the turn of the century it was looking rather obsolete, although the monitoring authority knew when the offender left the designated premises, they did not know her/his new illicit location. From 2004 (Travis 25/02/2016; MOJ/Eaton and Mews 2019; Shute 2007), there was much talk about enhancing the tag with a GPS facility. Such a facility potentially allowed the position of the tag wearer to be determined, whether or not in the designated premises. But the development of GPS-enhanced tags has been problematic and has resulted in, like the AAMR, GPS tagging being rolled out nationally for court use very late in the period at issue. This is all the more surprising given that work started back in 2004 (and was seen as a desirable development by the Coalition government; MOJ December 2010:17–18). However, the development of a bespoke GPS tag set going in 2011 was abandoned by the Cameron government in 2016 and since then various efforts have been made to use existing devices for this purpose, with a pilot scheme being set up in 2016, running to 2018, but with the scheme allowed to go national and become available to all courts, in February 2019. The process has come in for much ­criticism about not only about the management of the process, but its cost (see Chap. 5).

The Rehabilitation of Community and Suspended Sentence Order Treatment Requirements Legislation allowed for a number of community and suspended sentence order requirements. Three involved treatment of some kind to provide

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mental health treatment (the MHTR), for example, involving access to psychological therapies, to provide drug treatment (the drug rehabilitation requirement or DRR), deploying, for example, psychosocial therapies, drug substitution and drug reduction plans and alcohol treatment (the alcohol treatment requirement or ATR), deploying, for example, psychosocial interventions, drug relapse prevention and recovery focused interventions. The treatment requirements could be imposed with non-­ treatment requirements as well as combined with each other, although the DRR and ATR could not be combined. For the community order requirements to be imposed, the offence had to be serious enough to fit into the tariff for the community order (or in the case of the SSO be serious enough to merit custody which was then suspended) and the convicted offender had to be an adult or young adult and give their consent to the order. By 2014/2015, community order use by sentencers in general had been in decline for a number of years—for all offenders the proportion given community orders decreased from 13.7% in 2009/2010 to 9.1% in 2014/2014 and to 7.2% in 2019/2020 (see Table 3.2 in this chapter). Furthermore, not only had there been a decline in the general use of community orders, but the main ‘treatment’ requirements (MHTR, ARR and DRR) were about 0.1%, 3% and 5% of all community order requirements, respectively, in both periods. The trends in the court use of SSOs were somewhat different—increases in their use were evident in 2009/2010 to 2014/2015 for all convicted offenders from 3.3% to 4.4%, although some decrease in proportional use was evident by 2019/2020 to 3.4% (see Table 3.2 in this chapter). However, the take up of the treatment requirements was also very limited (about 0%, 3–6% and 4–6%, respectively) (see MOJ 25/10/2012, 30/07/2015 and 30/07/2020a ‘Probation Tables’ at Table 4.4). The government was encouraged by the Mental Health Task Force (February 2016:78) to make better provision for amongst other things the take up of MHTR by the courts. Following recommendation 24 of this review, a joint effort by NHS England and the MOJ in 2017 was launched to encourage courts to make more use of the treatment requirements and to develop treatment provision. This took the form of the ‘community sentence treatment requirement protocol’ (CSTRP) and

78 

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resulted in a pilot to increase court use of the treatment requirements and thereby diminish the use of short prison sentences, develop treatment facilities, promote better partnership working, develop judicial awareness of mental health issues and encourage more timely sentencing. The pilot was run in five areas in England and operated for about six months between December 2017 and May 2018. A process evaluation of the pilot was conducted (Department of Health and Social Care [DHSC] June 2019). Unfortunately, probably because of its inherent weaknesses, the study concluded that ‘Using only the evaluation data it is difficult to gauge whether the use of CSTRs increased after the protocol was introduced’ (DHSC June 2019: 24). However, there was some numerical increase in MHTRs imposed comparing 2016–2017 with the short, experimental period. Thus, the only real exception to the general trend towards punitiveness regarding community penalties, the CSTRP, seems to have had only a limited impact in the pilot areas only. There was no indication that the scheme was expanded nationally after June 2019.

Financial Impositions In 2015, financial impositions on convicted offenders fell into not less than seven separate categories but we will deal with the four court-­ imposed penalties, the criminal courts charge (CCC), compensation orders, the victim surcharge (VS) and fines. Financial impositions feed into government and criminal law framing of offenders as rational actors in pursuit of their self-interest in a largely equal opportunity, ­money-­success orientated world, but who act in an inappropriate way. Financial impositions have many affinities with this worldview in that they message ‘if you can’t pay for the courts’ time, don’t do the crime’. They are also comparatively cheap to use and may even defray some of the costs of prosecution and are directly punitive, hitting the offender in the wallet. Finally, they all, directly or indirectly, place some importance on recompense or reparation to the victim, albeit confined to money only (including taxpayers who finance the penal system, the local community affected by crime and the victim of a crime).

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The period seemed to start well when the Cameron government appointed a review into financial impositions in MOJ (03/03/2015a and February 2016a). However, there is little subsequent evidence that this review proceeded in the MOJ Annual Report and Accounts up to 2019–2020. Conservative governments of the 2015–2020 period then largely adopted a position which simply preserved the status quo regarding financial impositions. There were two notable exceptions. Firstly, the Cameron Conservative government put the CCC in abeyance in December 2015, due to its unpopularity with courts and wider society, arguing that although the intention of the policy, ‘to make sure that those who impose costs on the criminal justice system make a contribution to those costs’, was ‘honourable’ and ‘valid’, ‘in reality the intent had fallen short’ (Michael Gove quoted by Vina 03/12/2015; see also Ministerial statement to parliament MOJ 03/12/2015c). As a result, the measure was not repealed but put in abeyance, leaving it on the statute books, and thus able to be reproduced, still in abeyance, by the 2020 Sentencing Act. Secondly, with regard to the VS, much-above inflation increases have been introduced in the amount of payments to be made, with the Sentencing Council (Sentencing Council January 2021) giving a detailed breakdown of the changes for the amount of payments from 2015 to 2020 which increased by about 26%. What has been left in place has been the priority that the VS has over other financial impositions, the de facto increase in fines over the 2015–2020 period, the steady and largely un-resisted decline in the use of compensation orders by courts (see Table 3.6 in this chapter). The largely reactive policy on the part of the Conservative administrations of the period to the provision of financial impositions lessened the burden slightly on offenders with financial vulnerabilities, when the CCC was put in abeyance, but revealed no fundamental unpicking of the underlying logic that offenders who choose wrongful acts and need to be taught not to do the crime if they are not prepared to pay in multiple forms for the court time. The net result of policies on community sentencing was to drive to greater punitiveness and in practice contribute to penal policy-making with limited accountability.

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Table 3.6  The total value of financial impositions made by the criminal courts by method and the total outstanding financial imposition debt, in England and Wales 2009/2010, 2014/2015, 2019/2020 and 2020/2021 Form of financial imposition

2009/2010 2014/2015 £000 £000

2019/2020 £000

Fines

194,686

316,219 (48%) 217,479 (−31%) 109,246 (13%) 95,948 (−12%)

213,611 (10%) Fixed penalty notices 111,680 96,925 (−13%) Court prosecution 102,516 114,588 costs (12%) Compensation orders 51,031 34,902 (−32%) Victim surcharge 23,870 35,203 (47%) Confiscation orders 173,088 269,719 (56%) Criminal Courts – (2015/2016) charge (66,209) Miscellaneous receipts – 4834 Total 656,871 769,782 (17%) Total outstanding 1,500,000 1,573,765 financial imposition (5%) debt

121,999 (6%)

2020/2021 £000

74,245 (−39%)

28,150 (−19%) 21,756 (−23%) 44,424 (26%)

36,647 (−18%)

293,903 (9%)

223,323 (−24%) (800) (214) (remissions) (remissions) 4759 (−2%) 5031 (6%) 917,900 (19%) 674,215 (−27%) 3,464,058 3,603,745 (120%) (4%)

Sources: Adapted from HMCS 15/12/2011b:25 and HMCTS 07/07/2016:37, 08/10/2020c:13, 26 and 33 and 21/09/2021b:28 and 35

Table 3.7 (in this chapter) summarises the conclusions of the internal critique, the successes and failures of government policies on courts and sentencing in the 2015–2020 period. Of the three items listed under reforms to the administration of justice, two—the further reduction of legal aid (amidst continuing concerns about the impact on access to ­justice) and the privatisation of financial imposition debt recovery (with stark concerns remaining about the operation of the debt collection industry)—were implemented. The remaining policy—the court transformation programme—had been only partly implemented and is unlikely to be fully accomplished even by 2023 and even then is unlikely to provide the promised cost savings and avoid detrimental impacts on justice. Some aspects of this programme have been galvanised by the new coronavirus pandemic, notably the movement to remote working,

Nature of the policy

Internal critique: relation to penal philosophy, extent of implementation and impact by 2020

(continued)

Reductions in legal aid were a product of austerity and contributed to harsher conditions for defendants.

External critique: impact on the material and Implications for the moral aspects of the emergent penal penal crisis policy package

1. Court Active, aggressive rear Penal philosophy: Fiscal stringency limited administration guard defence of Consistent, emphasising access to legal advice 1.1. Continued the Coalition policy to personal continence, and representation, legal aid austerity reduce legal aid individual responsibility caused significant regime. whilst insisting the and reduced state, and delays in court cases changes would not greater, private sector due to defendants impact on access to provision. acting as litigants in justice. Implementation: mostly person, significantly successful, albeit elements detracted from were not put into procedural justice and practice, for example, reduced the second fee reduction accountability of the abolished and duty courts. solicitor scheme abandoned. Impact: enabled the continued reduction in legal aid throughout the 2015–2020 period, at the cost of the viability of many law firms.

Main features of courts and sentencing policy

Table 3.7  Summary of the internal and external critique of the Conservative governments’ courts and sentencing policies 2015–2020

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1.2. Attempted implementation of the court transformation programme.

1.3. Introduced the Off/then on drive to outsourcing of privatise court financial penalty financial penalty debt debt enforcement. enforcement.

Nature of the policy

Active attempt to reduce costs and modernise court practices and the court estate.

Main features of courts and sentencing policy

Table 3.7 (continued) External critique: impact on the material and Implications for the moral aspects of the emergent penal penal crisis policy package

Penal philosophy: Led to significant The programme was Consistent, attempting to further material driven by austerity shape courts according to scarcity (courts closed, and contributed to minimal state staff reduced). harsher conditions assumptions. Impact on access to for victims, Implementation: delayed to justice widely criticised defendants and 2023. for damaging offenders. Impact: unlikely to achieve procedural justice. either full modernisation or the claimed cost savings, whilst causing considerable disruption to court services. Penal philosophy: Grave doubts remain as Contributed to Consistent, with notions to the operation of the outsourcing and that the private sector privatised debt potentially the knows best. collection industry, and harsher treatment Implementation: contracts thus probably of offenders. awarded to three private inconsistent with agencies procedural justice. Impact: not known.

Internal critique: relation to penal philosophy, extent of implementation and impact by 2020

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(continued)

2. ‘Toughened’ Active, after July Penal philosophy: Criticised for abuse of Contributed to the custodial 2019. Ended Consistent fitting in with parliamentary drive to a punitive sentences automatic remission, notions of incapacitation. procedure, being approach based on 2.1. Attempted to made release Implementation: Terrorist retrospective in effect incapacitation. reduce the extent discretionary, moved Offenders (Restriction of and punitive without of early release the point of first early release) Act February provision for from prison for possible release 2020, rehabilitation and thus ‘serious from one half to Release of Prisoners detracted from offenders’. two thirds of (Alteration of) Order procedural justice. sentence for serious February 2020. Promoted prison offenders. Impact: fixation. Further proposals awaiting parliamentary approval, as part of PCS&C Bill March 2021. 2.2. Imposed Active, after July Penal philosophy: Unlikely to lead to Contributed to the longer prison 2019. Introduction Consistent rehabilitation but will drive to a punitive sentences for of longer fixed-term Implementation: Counter-­ contribute to greater approach based on serious offenders sentences for terrorism (Sentencing and harshness and thus incapacitation. 2.2.1. Attempted terrorist offences. Release) Bill allows for diminish procedural to impose longer sentences of up to 14 justice. Promoted prison sentences years for terrorist prison fixation. for terrorist and offences. other serious Impact: not yet obtained offenders. parliamentary approval for the final stages of the programme.

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Nature of the policy

2.2.3. Accepted de facto harsher prison sentencing.

Government policy simply allowed imprisonment rates to become static, ACSLs to rise and lifer tariffs to increase.

2.2.2. Attempted Active, after July to introduce 2019. Will enable whole-life the application of sentences for whole-life orders to ‘child murderers’. adult and young adult child murderers.

Main features of courts and sentencing policy

Table 3.7 (continued) External critique: impact on the material and Implications for the moral aspects of the emergent penal penal crisis policy package

Penal philosophy: A significant move Contributed to the Consistent, rooted as it is towards harshness of drive to a punitive in incapacitation. treatment especially as approach based on Implementation: Included it contains the incapacitation. in the September 2020 inclusion of young White Paper on adult offenders, a sentencing and the PCS&C significant change of Bill March 2021. position for England Impact: awaits and Wales. Promoted parliamentary approval. prison fixation. Penal philosophy: Increasing punitive Contributed to the Consistent. emphasis, detracting drive to a punitive The Sentencing Council from procedural approach based on failed to address static justice. Went along incapacitation. imprisonment rates and with prison fixation. sentence inflation and the government failed to intervene. Implementation: Effected in practice during the 2015–2020 period. Impact: The Sentencing Council: ‘norm reinforcing rather than changing’.

Internal critique: relation to penal philosophy, extent of implementation and impact by 2020

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Active policy to avoid bans on or presumptions against short prison sentences and support the retention of short prison sentences.

Reactive policy— retention of one punitive requirement for all COs/SSOs.

2.2.4. Retained short prison sentences.

3. Imposed tougher community sentences 3.1. Reproduced the punitive policies of the Coalition.

(continued)

Penal philosophy: Traps prisoners in the Contributed to the Consistent. revolving prison door drive to a punitive The retentionist position and thus detracts from approach based on has been maintained procedural justice. incapacitation. throughout. Promoted prison Implementation: de facto fixation. Impact: Large numbers of short sentence prisoners continue to add to prison churn and make disproportionate use of resources and subsequently have high reoffending rates. Penal philosophy: Contributed to the crisis Contributed to the Consistent by undermining drive to a punitive Implementation: Effected probation and approach based on by simply maintaining the emphasising more incapacitation. status quo costly prison option as Impact: Probation well as contributing to experiencing clear the harsher treatment problems of internal of offenders and thus integration, reputational detracting from damage with courts and procedural justice. effectiveness

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3.3. Attempted to rehabilitate treatment requirements

3.2. Promoted punitive and incapacitative community requirements 3.2.1. Introduced sobriety tags 3.2.2. Introduced GPS-enabled electronic monitoring

Main features of courts and sentencing policy

Internal critique: relation to penal philosophy, extent of implementation and impact by 2020

External critique: impact on the material and Implications for the moral aspects of the emergent penal penal crisis policy package

Active policy to Penal philosophy: Sobriety tags lack any Contributed to the develop transdermal Consistent, incapacitation emphasis on drive to a punitive tag, but only in the community. rehabilitation and are approach based on pursued very Implementation: National overwhelmingly incapacitation. gradually. scheme made available to punitive, detracting courts only by May 2020 from procedural Impact: Not known justice. Active policy to Penal philosophy: Again involves little by Contributed to the develop a GPS tag, Consistent as based on way of positive drive to a punitive but only pursued incapacitation in the intervention and approach based on very gradually. community detracts from incapacitation. Implementation: national procedural justice. scheme made available to courts only by February 2019 Impact: not known An attempt to revive Penal philosophy: Lack of vitality of the Did little to court use of CO and Consistent with the exercise, in the context strengthen an SSO treatment notion of ‘second chance’ of growing harsher emphasis on requirements by for some deserving treatment of offenders ‘second chances’ or extending treatment offenders. detracted from rehabilitation. services. Implementation: Pilot procedural justice. introduced Impact: very limited.

Nature of the policy

Table 3.7 (continued)

86  C. D. Skinns

3.4. Retained most financial impositions (the victim surcharge, fines and compensation orders)

Provided continued support for all but the criminal court charge

Penal philosophy: Consistent—‘If you can’t pay the fine don’t do the crime’. Implementation/impact: CCC suspended but financial impositions increased in value.

Economic marginalisation of offenders by court order continued detracting from procedural justice.

Contributed to the drive to a punitive approach based on incapacitation.

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although not without widespread concern being expressed about the impact on access to and the openness of justice (see Chap. 7). Some success has been achieved regarding curtailing the impact of early release from prison in relation to some types of offender, increasing sentence lengths and retaining short prison sentences. However, the full outcome will not be known concerning many proposals here until the parliamentary approval for the Police, Crime, Sentencing and Courts Bill (PCS&C) is obtained. The tendency to limit parliamentary debate and achieve aims via secondary legislation is notable, as is the tendency to use retrospective legislation. A very mixed picture is evident concerning sentencing policy for probation, with important aspects of the policy simply following through with punitive Coalition government policies and/or continuing to retain existing punitive measures combined with and a drive towards tougher, smarter and more credible community sentences underwritten by incapacitation, albeit at a snail’s pace and with much incompetence.

 onservative Government Sentencing Policies C 2015–2020: An External Critique In this final part of Chap. 3, I consider how the sentencing policies of the Conservative administrations in the 2015–2020 period have affected both the material and moral aspects of the penal crisis. The conclusion reached is that there can be little doubt that policies here contributed to the further development of a penal package based on austerity, ­outsourcing and punishment and thus exacerbated the crisis. A summary of the points made is provided in Table 3.7 (in this chapter).

Material Crisis: 2015–2020 The material crisis evident in 2015 in the courts continued and deepened in the 2015–2020 period. The workload of courts, as measured by ‘receipts’, only slightly diminished, and not proportionally to the reduction in resources, when money spent on the court estate transformation

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programme is taken into account. HMCTS expenditure increased by only 15% in 2015 to 2020. Administrative staff were reduced by 12% in 2009/2010 to 2014/2015, decreased by a further 13% in 2014/2015 to 2019/2020, with an overall decrease of 23% in 2009/2010 to 2019/2020, with some shift from permanent to agency and contract staff being evident. Magistrates were reduced by 33% in 2015–2020 with a 55% decrease in the 2010–2020 period, whilst judge numbers decreased by 2% in 2015–2020, with overall decrease of 12% in 2010–2020. Finally, a large reduction in court premises was effected in 2010–2018 of 32% for all courts and tribunals and for criminal courts of 41%, amounting to 50% of magistrates’ courts and 9% of Crown Courts (see Table 3.1 in this chapter). Legal aid cuts during the 2014/2015 to 2019/2020 period have added to the overall material deprivation with applications reducing to magistrates’ courts by 41% and Crown Courts by 23% and expenditure on criminal legal aid has been reduced by 11% in the same period (see Table 3.1), leading to more defendants either being not represented or trying to represent themselves, causing delays in court processes. Both remands to custody and case backlogs have remained high. Eligibility for legal aid has continued to be low and enforced contributions to criminal legal aid have increased markedly (see Table  3.1 in this chapter). The emphasis on outsourcing was given new prominence with the privatisation of financial penalty debt enforcement. Austerity of one form or another and outsourcing have thus been the dominant themes in policies related to court administration and have exacerbated the penal crisis.

Moral Crisis: 2015–2020 The analysis here follows the examination of the aspects of penal crisis set out in Chap. 2 and assesses the extent to which the court system is seen to be procedurally just by three key audiences (the public, court staff and court users), as well as considering whether policy has diminished the fetishisation of the prison, enabled greater accountability, improved the process of penal policy-making and generally contributed to justice.

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Public: No great seismic shift in public confidence in the effectiveness of the criminal justice system 2014/2015–2017/2018 has occurred (about 50% of people expressed such confidence). Whereas, on the one hand, this might look positive given lack of deterioration, on the other hand, it demonstrates little real improvement. On the basis of the Crime Survey for England and Wales (CSEW) data confidence in the fairness of the criminal justice system as a whole increased slightly between 2014/2015 and 2017/2018 from 66% to 69%. However, a study sponsored by the Sentencing Council showed that a much reduced figure of 54% for this in 2018 and when the survey was repeated in 2019 reduced scores for both effectiveness (52% to 38%) and fairness (54% to 44%) (Sentencing Council 2019: 15; see Table 3.8 in this chapter). The discrepancies between the CSEW survey and the Sentencing Council studies may be due to contextual factors and divergence of data collection methods, as the Sentencing Council study suggests and anyway represents the criminal justice system rather than the courts specifically. Nevertheless, it causes some grounds for concern especially given that two significant changes potentially affecting public perceptions and perhaps experiences of justice namely the negative impact of legal aid cuts on defendants’ ability to obtain legal advice and representation and the shift away from local justice attendant upon the court closures programme. The more detailed questions about the effectiveness of courts to be prompt in dealing with offenders (from 47% to 52%) and imposing sentences that fit the crime (from 34% to 40%) suggest some small increase in confidence between 2014/2015 and 2017–2018. However, this still means that courts are not seen as effective by a near majority of r­ espondents in terms of effectiveness and by a majority of respondents for not imposing sentences that fit the crime. Staff: Table 3.9 (in this chapter) suggests that evidence from the Civil Service People Survey 2020 indicates that HMCTS staff compared with their civil service colleagues in 2020 felt less involved in the decision-­ making affecting their work (QB04 49/64%; QB05 61/81% and QB10/11 75/86%) and less fairly (QB26/27  75/84%) or respectfully (QB47 83/89%) treated. Comparing 2020 with 2015, for HMCTS staff, then the feeling of being involved in decision-making had diminished (QB04 49/53%;

The courts are effective at dealing with cases promptly. The courts are effective at giving punishments that fit the crime. Prisons are effective at punishing offenders. Prisons are effective at rehabilitating offenders. The probation service is effective at preventing reoffending. % saying that they agree that: The criminal justice system as a whole is fair. 34

34 24 28

66

24

30

22

23

59

69

31

24

36

40

52

69

69

47

53

51

42

% saying that they are 41 confident that: The criminal justice system as a whole is effective. The police are effective at 62 catching offenders.

Questions asked

54 [44]

–

–

–

–

–

–

52 [38]

2018 [2019] (Sentencing 2009/2010 (ONS 2014/2015 (ONS 2017–2018 (ONS Council 31/07/2019) % 31/07/2019) % 31/07/2019) % 07/08/2019) %

–

–

–

–

–

(continued)

Trust in the police (‘a great deal and somewhat’):77 –

Trust in the justice system (‘a great deal and somewhat’):58

YouGov Poll February, 2020 (Smith 17/02/2020) %

Table 3.8  Public confidence in the criminal justice system in England and Wales 2009/2010, 2014/2015, 2017/2018, 2018 and 2020

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64

44

72

75

72

36

56

36

66

78

79

35

38

69

77

75

50

68

–

–

–

–

–

–

2018 [2019] (Sentencing 2009/2010 (ONS 2014/2015 (ONS 2017–2018 (ONS Council 31/07/2019) % 31/07/2019) % 31/07/2019) % 07/08/2019) %

Sources: Adapted from ONS (31/7/2019), Sentencing Council (07/08/2019) and YouGov (17/02/2020)

The criminal justice system gives victims and witnesses the support they need The criminal justice system achieves the correct balance between the rights of offenders and victims. The criminal justice system takes account of the circumstances of the crime. The criminal justice system treats those accused of crime as ‘innocent until proven guilty’. The criminal justice system is too soft on those accused of committing crime The criminal justice system discriminates against particular groups or individuals

Questions asked

Table 3.8 (continued)

–

–

–

–

–

–

YouGov Poll February, 2020 (Smith 17/02/2020) %

92  C. D. Skinns

2010 All civil service All MOJ HM Courts Service NOMS 2015 All civil service MO HQJ HMCTS HM Prison Service National Probation Service 2020 All civil service

Year and place of work/ questions 70 71 59 60 73 61 63 53 59

81

46

56 49 53 42

38

64

B05 I have choice in deciding how to do my work % Yes

49 52 46

B04 I feel involved in decisions that affect my work % Yes

86

73

81 74 78 65

69

77 79 72

B11 My manager is open to my ideas % Yes

84

75

78 73 76 64

69

78 79 76

B26 (B25 2020) I am treated fairly at work % Yes

89

86

85 82 83 76

78

84 84 81

B27 (B26 in 2020) I am treated with respect at work % Yes

70

56

57 52 45 51

56

82 55 43

B50 (B47 2020) I am proud to tell others that I work for the organisation % Yes

–

55

70 55 53 48

–

– – –

B61 (2015) When I talk about the organisation I say ‘we’ rather than ‘they’ % Yes

8

14

11 14 11 18

20

10 11 10

(continued)

F01 (2010) thereafter E01 I have experienced discrimination in the last 12 months % Yes

Table 3.9  The views of civil servants of the procedural justice of their organisation, in England and Wales 2010, 2015 and 2020

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68 61 61 68 85

54 49 49

50 73

B05 I have choice in deciding how to do my work % Yes

78 89

77 75 70

B11 My manager is open to my ideas % Yes

77 88

76 75 68

B26 (B25 2020) I am treated fairly at work % Yes

85 90

83 83 77

B27 (B26 in 2020) I am treated with respect at work % Yes

67 72

64 54 64

B50 (B47 2020) I am proud to tell others that I work for the organisation % Yes

– –

– – –

B61 (2015) When I talk about the organisation I say ‘we’ rather than ‘they’ % Yes

12 6

12 10 17

F01 (2010) thereafter E01 I have experienced discrimination in the last 12 months % Yes

Sources: Adapted from HM Government Civil Service People Surveys 2010, 2015 and 2020 (HM Government 08/12/2010, 18/11/2016 and 07/05/2021)

All MOJ HMCTS HM Prison Service NPS LAA

Year and place of work/ questions

B04 I feel involved in decisions that affect my work % Yes

Table 3.9 (continued)

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QB05 61/63%; QB10/11 75/78%), though not being treated fairly (QB25/26 75/76%) or respectfully (QB26/27 83/83%). In 2020, 10% of HMCTS staff considered that they had experienced discrimination, compared with 11% in 2015. However, the limitations of the data need to be acknowledged here— non-response rates (about one-third of civil servants failed to participate), the meaningfulness of the questions of surveys of this kind and fear of consequences of offering too negative a picture, all detract from the validity of the findings. Defendants/offenders/victims: Policy in the 2015–2020 period on courts has objectively detracted from procedural justice in a number of ways pertinent to defendants/offenders/victims, notably by limiting the court venues available, reducing the staff available to assist court users and restricting the supply of publicly funded legal advice and representation. Information on what defendants make of their courtroom experiences including whether they were involved in the decision-making and whether they were treated fairly and decently is sparse as has been noted by the NAO (13/09/2019 Para 13, page 8). Studies of the overall satisfaction levels of courts users, including both members of the public and ‘professional’ users of courts and based on assessment of information provided, staff contacts, the physical court environment, waiting times and the accessibility of the courts, suggest some reduction from about 82% being satisfied with their experience in 2009/2010 (MOJ/HMCS 14/10/2010:11) to 61% being satisfied in 2018 (MOJ/HMCTS June 2018: 9). When focused on court users in relation to criminal cases, satisfaction levels were lower in 2010 (about one-third were satisfied HMCS 14/10/2010:16). Criminal defendants were excluded from the 2018 survey (MOJ/HMCTS June 2018: 4). It is only too clear that the direction of change regarding courts and sentencing (with only minor deviations) has been to push towards punitiveness, to inflate the central role of the prison in the system and contribute markedly to the crisis of imprisonment. The accountability of courts has been rendered more fragile by the reduction in legal aid. Penal policy-making even though shared with the Sentencing Council has not been capable of addressing the in-practice shift towards the prison in sentencing. Finally, my interpretation of Bottoms and Tankebe’s 2012

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paper, that an overall assessment of penal policy can be made by ­considering its functionality for justice, suggests that sentencing policy in the 2015–2020 period has been largely dysfunctional for the pursuit of justice, given the significant reduction in legal aid, the impact of the court estate transformation programme, the uncertainties of allowing outsourced debt collection of court-imposed financial penalties, the drive to impose reduction in early release of prisoners based as it was on the curtailment of parliamentary debate and immediate implementation and the general drive, both in terms of custodial and non-custodial sentencing, to be harsher, without a simultaneous effective emphasis being placed on rehabilitation.

Conclusion This chapter has provided a detailed and critical examination of the sentencing policies of the successive Conservative governments in the 2015–2020 period. The internal critique of the policies suggests that although many of the reforms were consistent with Conservative penal philosophy, there were significant problems associated with their implementation  and impact. The external assessment of policies suggests, despite such implementation problems, that there has been an exacerbation of the penal crisis by the further development of the austerity, outsourcing and punishment penal policy package based on a combination of financial stringency, mixed with further outsourcing and a marked tendency to push custodial and community penalties to be harsher, tougher and more demanding, all of which contributed to and did not diminish the fixation on imprisonment. A diminution of court accountability was also evident and reflected in the decline in legal aid. It is thus doubtful that courts contributed more effectively to justice in 2020 compared with 2015. Chapter 4 goes on to provide a critical assessment of prison policy in the 2015–2020 period.

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References Allen, R (December 2016) The Sentencing Council for England and Wales: brake or accelerator for the use of prison? Transform Justice @ https://www.transformjustice.org.uk/wp-­content/uploads/2016/12/TJ-­DEC-­8.12.16-­1.pdf Ashworth, A and Roberts, J V (2016) ‘The Evolution of Sentencing Policy and Practice in England and Wales 2003–2015’, Crime and Justice, Vol 45: 307–358. Bach Commission (07/12/2017) The Right to Justice, September 2017 @ https://lordslibrary.parliament.uk/research-­briefings/lln-­2017-­0093/ Bellamy, C (29/11/2021) Independent Review of Criminal Legal Aid @ https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/1041117/clar-­independent-­review-­report-­2021.pdf Bowcott, O (28/01/2016) ‘Justice secretary suspends legal aid fee cuts and retreats from contract tendering for duty solicitors’, The Guardian. Bowcott, O (26/12/2018) ‘Legal aid: how has it changed in 70 years?’ The Guardian. Buckland, R (13/11/2011) ‘The legal aid budget must be cut. Here’s how’, The Guardian. Carter Review Report (2007) Securing the future: Proposals for the efficient and sustainable use of custody in England and Wales, HMSO. Conservative Party General Election Manifesto (November 2019) Get Brexit Done @ https://assets-­global.website-­files.com/5da42e2cae7ebd3f8bde353 c/5dda924905da587992a064ba_Conservative%202019%20Manifesto.pdf Council of Europe (April 2017) Space 1: Prison Populations Survey 2015 @ http://wp.unil.ch/space/files/2017/04/SPACE_I_2015_FinalReport_ 161215_REV170425.pdf Council of Europe (2018) Prisons in Europe @ https://rm.coe.int/ prisons-­in-­europe-­2005-­2015-­volume-­1/1680990199 Court and Tribunals Judiciary (29/07/2010) Annual Diversity Statistics @ https://www.judiciary.uk/publications/stats-­annual-­diversity-­statistics-­2010/ Dearden, L (19/11/2019) ‘Conservatives accused of “peddling fake law” with pledge to jail child killers for life’, The Independent. Department of Health and Social Care (DHSC) (June 2019) Community Sentence Treatment Requirements Protocol Process Evaluation Report @ https://assets.publishing.service.gov.uk/government/uploads/system/ uploads/attachment_data/file/810010/cstr-­p rocess-­e valuation-­r eport. pdf#:~:text=The%20Community%20Sentence%20Treatment%20

98 

C. D. Skinns

Requirements%20%28CSTR%29%20programme%20aims,health%20 and%20social%20care%20issues%20of%20the%20offender Dodd, V and Siddique, H (30/09/2021) ‘Sarah Everard murder: Wayne Couzens given whole-life sentence,’ The Guardian. Eley, S, McIvor, G, Malloch, M and Munr, B (2005) A Comparative Review of Alternatives to Custody: Lessons from Finland, Sweden and Western Australia @ https://dspace.stir.ac.uk/bitstream/1893/11788/1/comparative-­review-­of-­ alternatives-­to-­custody.pdf Frase, R (2013) Just Sentencing, New York: Oxford University Press. Gauke, David (22/07/2019) Minister’s Commons Statement @ https://www. theyworkforyou.com/wms/?id=2019-­07-­22.HCWS1776.h HM Courts Service (15/07/2010) Annual Report and Accounts 2009–10 @ http://www.justice.gov.uk/downloads/publications/corporate-­reports/hmcs/ annual-­reports/HMCS-­Annual-­Report2009-­2010-­web.pdf HM Courts Service (05/07/2011a) Annual Report and Accounts 2010–11 @ https://www.justice.gov.uk/downloads/publications/corporate-­reports/ hmcs/annual-­reports/hmcs-­annual-­report-­2010-­11.pdf HM Courts Service (15/12/2011b) Trust Statement 2010–11 @ https://www. justice.gov.uk/downloads/publications/corporate-­reports/hmcs/annual-­ reports/hmcs-­trust-­statement-­2010-­11.pdf HM Courts and Tribunals Service (15/06/2015) Annual Reports and Accounts 2014–15 @ https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/433948/hmcts-­a nnual-­r eport-­ accounts-­2014-­15.pdf HM Courts and Tribunals Service Judicial Diversity Statistics (30/07/2015) @ https://www.judiciary.uk/publications/judicial-­statistics-­2015/ HM Courts and Tribunals Service (07/07/2016) Trust Statement 2015–16 @ https://assets.publishing.service.gov.uk/government/uploads/system/ uploads/attachment_data/file/536077/hm-­courts-­and-­tribunals-­service-­ t r u s t -­s t a t e m e n t -­2 0 1 5 -­1 6 . p d f # : ~ : t e x t = H M C TS % 2 0 Tr u s t % 2 0 Statement%202015%E2%80%9316%201%20Contents%20Contents%20 Section,19%20Accounting%20Officer%E2%80%99s%20responsibilities%2021%20Governance%20Statement%2023 HM Courts and Tribunals Service (21/07/2020a) Annual Reports and Accounts 2019–20, @ https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/902301/HMCTS_Annual_Report_ and_Accounts_2019-­20_WEB.PDF

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HM Courts and Tribunals Service (01/09/2020b) Approved Agency Enforcement Services Contracts commences @ https://www.gov.uk/government/news/ approved-­enforcement-­agency-­services-­contracts-­commences HM Courts and Tribunals Service Judicial Diversity Statistics (17/09/2020) @ https://www.gov.uk/government/statistics/diversity-­of-­the-­judiciary-­2020-­st atistics HM Courts and Tribunals Service (08/10/2020c) Trust Statement 2019–20 @ https://assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/925318/HMCTS_Trust_Statement_2019-­2 0__ print_version_body_.pdf#:~:text=2019-­2 0%20was%20operating%20 as%20normal%20for%20the%20Trust,full%20impact%20of%20the%20 Covid-­19%20pandemic%20was%20faced HM Courts and Tribunals Service (15/07/2021a) Annual Report and Accounts 2020–21 @ https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/1002585/HMCTS_Annual_Report_ and_Accounts_2020-­21.pdf HM Courts and Tribunals Service (21/09/2021b) Trust Statement 2020–21 @ https://www.gov.uk/government/publications/hm-­courts-­tribunals-­service-­ trust-­statement-­2020-­to-­2021 HM Government (08/12/2010) Civil Service People HM Courts and Tribunals Service (21/09/2021) Trust Statement 2020–21 @ https://assets.publishing. service.gov.uk/government/uploads/system/uploads/attachment_data/ file/1019456/HMCTS_Trust_Statement_2020-­21.pdf HM Government (18/11/2016) Civil Service People Survey 2015 @ https://www. gov.uk/government/publications/civil-­service-­people-­survey-­2015-­results HM Government (07/05/2021) Civil Service People Survey 2020 @ https://www. gov.uk/government/publications/civil-­service-­people-­survey-­2020-­results HM Treasury (27/11/2015) Spending Review and Autumn Statement @ https:// www.gov.uk/government/publications/spending-­review-­and-­autumn-­statem ent-­2015-­documents HM Treasury (November 2016) Spending Review and Autumn Statement @ https://www.gov.uk/government/publications/autumn-­statement-­2016-­ documents HM Treasury (November 2017) Spending Review and Autumn Statement @ https:// www.gov.uk/government/publications/autumn-­budget-­2017-­documents HM Treasury (October 2018) Budget Documents @ https://www.gov.uk/government/publications/budget-­2018-­documents

100 

C. D. Skinns

Home Office (March 2021) PCS&C Bill 2021 Community sentences Factsheet at https://www.gov.uk/government/publications/police-­crime-­sentencing-­ and-­c ourts-­b ill-­2 021-­f actsheets/police-­c rime-­s entencing-­a nd-­c ourts-­ bill-­2021-­community-­sentences-­factsheet House of Commons Justice Select Committee (18/07/2018) Criminal Legal Aid @ https://publications.parliament.uk/pa/cm201719/cmselect/ cmjust/1069/1069.pdf House of Commons Justice Select Committee (11/04/2019a) Bailiffs: Enforcement of Debt @ https://publications.parliament.uk/pa/cm201719/ cmselect/cmjust/1836/full-­report.html#content House of Commons Justice Select Committee (31/10/2019b) Courts and Tribunals Reforms @ https://publications.parliament.uk/pa/cm201919/ cmselect/cmjust/190/19004.htm House of Commons Public Accounts Committee (16/07/2018) Transforming Courts and Tribunals @ https://publications.parliament.uk/pa/cm201719/ cmselect/cmpubacc/976/976.pdf Hyde, J (15/10/2015) ‘MOJ U-turns on outsourcing fine enforcement’, Law Society Gazette @ https://www.lawgazette.co.uk/news/moj-­u-­turns-­on-­ outsourcing-­court-­fine-­enforcement/5051599.article Hyde, J (01/10/2019) ‘Tories to ditch plans to scrap short prison sentences, Law Society Gazette @ https://www.lawgazette.co.uk/news/tories-­to-­ditch-­plans-­ to-­scrap-­shorter-­prison-­sentences/5101624.article Hymas, C (16/10/2019) ‘Plans to abolish short jail sentences ditched by new Justice Secretary,’ The Telegraph. Irwin-Rogers. K and Perry, T (2015) ‘Exploring the Impact of Sentencing Factors on Sentencing of Domestic Burglary’, in J V Roberts (ed) Exploring Sentencing Practice in England and Wales, London: Palgrave Macmillan. Law Society (05/11/2019) ‘Criminal legal aid review: an update’ @ https:// www.lawsociety.org.uk/news/stories/criminal-­legal-­aid-­review-­update/ Legal Aid Agency (10/06/2015) Annual Report and Accounts 2014–15 @ https://assets.publishing.service.gov.uk/government/uploads/system/ uploads/attachment_data/file/434072/laa-­annual-­report-­accounts-­2014­2015.pdf Legal Aid Agency (21/07/2020) Annual Report and Accounts 2019–20, @ https://assets.publishing.service.gov.uk/government/uploads/system/ uploads/attachment_data/file/902746/Legal_Aid_Agency_annual_report_ and_accounts_2019_to_2020.pdf

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Legal Aid Agency (22/09/2021) Annual Report and Accounts 2020–21 @ https://assets.publishing.service.gov.uk/government/uploads/system/ uploads/attachment_data/file/1019656/LAA_Annual_Report_and_ Accounts_2020-­21_WEB.pdf Legal Aid, Sentencing, Punishment and Offenders Act (LASPO) 2012 @ https:// www.legislation.gov.uk/ukpga/2012/10/enacted Legal Services Commission (23/11/2010) Annual Report and Accounts 2009–10, @ https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/247547/0575.pdf Mental Health Task Force (February 2016) Five Year Forward View for Mental Health @ https://www.england.nhs.uk/wp-­content/uploads/2016/02/Mental-­ Health-­Taskforce-­FYFV-­final.pdf MOJ/HMCS (14/10/2010) Court User Survey 2009/10 @ https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/217974/hm-­courts-­service-­court-­user-­survey2009-­10.pdf MOJ (December 2010) Breaking the Cycle, Green Paper @ https://restorativejustice.org.uk/sites/default/files/resources/files/Breaking%20the%20 cycle%20effective%20punishment%2C%20rehabilitation%20and%20sentencing%20of%20offenders.pdf MOJ (25/10/2012) Offender Management Statistics Prison Receptions and Probation Tables @ https://www.gov.uk/government/statistics/offender-­ management-­statistics-­quarterly-­earlier-­editions MOJ (25/04/2013) Offender Management Statistics—Licence Recalls and Prison Population @ https://www.gov.uk/government/statistics/offender-­ management-­statistics-­quarterly%2D%2D2 MOJ (03/03/2015a) Review of financial impositions in the criminal courts @ https://assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/501812/review-­of-­financial-­impositions-­tor.pdf MOJ (16/07/2015b) Proposal on the courts and tribunals estate @ https://www. gov.uk/government/consultations/proposal-­on-­the-­provision-­of-­court-­and-­ tribunal-­estate-­in-­england-­and-­wales MOJ (03/12/2015c) Ministerial Statement to Parliament @ https://www.gov. uk/government/speeches/courts MOJ/NOMS (11/06/2015) Annual Report and Accounts 2014–15 @ https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/434548/NOMS_AR14_15_report_accounts_ Final_WEB.pdf

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MOJ (February 2016a) Review of financial impositions in the criminal courts— terms of reference @ https://assets.publishing.service.gov.uk/government/ uploads/system/uploads/attachment_data/file/501812/review-­of-­financial-­ impositions-­tor.pdf MOJ (28/04/2016b) Offender Management Statistics Bulletin 2016 @ https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/519437/offender-­management-­statistics-­quarterly-­ bulletin-­oct-­dec-­2015.pdf MOJ (28/07/2016c) Offender Management Statistics: Licence Recalls and Prison First Receptions @ https://www.gov.uk/government/statistics/ offender-­management-­statistics-­quarterly-­january-­to-­march-­2016 MOJ, Chief Justice of E&W and Senior President Tribunals (September 2016) ‘Transforming our justice system’ @ https://assets.publishing.service.gov.uk/ government/uploads/system/uploads/attachment_data/file/553261/joint-­ vision-­statement.pdf MOJ (27/10/2016d) Offender Management Statistics—Prison Population @ https://www.gov.uk/government/statistics/offender-­management-­statistics-­ quarterly-­january-­to-­march-­2016 MOJ/HMCTS (June 2018) Citizen User Experience Research @ https://assets. publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/717315/HMCTS_Citizens_User_Experience_Research_ June_2018.pdf MOJ/Eaton, G and Mews, A/MOJ (2019) The impact of short custodial sentences, community orders and suspended sentence orders on reoffending @ https://assets.publishing.service.gov.uk/government/uploads/system/ uploads/attachment_data/file/814177/impact-­short-­custodial-­sentences.pdf MOJ (February 2019a) Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) @ https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/777038/post-­i mplementation-­r eview-­o f-­p art-­1 -­ of-­laspo.pdf MOJ (25/04/2019b) Offender Management Statistics: Prison releases 2018 @ https://www.gov.uk/government/statistics/offender-­management-­statistics-­ quarterly-­october-­to-­december-­2018 MOJ (30/04/2019c) MOJ Criminal Legal Aid Review: Programme Overview @ https://assets.publishing.service.gov.uk/government/uploads/system/ uploads/attachment_data/file/799661/criminal-­l egal-­a id-­p rogramme-­ overview.pdf

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MOJ Press Release (27/07/2019d) ‘Body worn cameras to curb aggressive bailiffs’ @ https://www.gov.uk/government/news/body-­worn-­cameras-­to-­curb-­ aggressive-­bailiffs MOJ (12/08/2019e) Press release: PM orders review to look at most dangerous and prolific offenders’ @ https://www.gov.uk/government/news/pm-­launches-­ sentencing-­review-­to-­look-­at-­most-­dangerous-­and-­prolific-­offenders MOJ Press Release (05/11/2019f ) Approved Enforcement Agency contracts Awarded https://www.gov.uk/government/news/approved-­enforcement-­ agency-­services-­contract-­awarded MOJ/LAA (25/06/2020) Legal Aid Statistics Quarterly @ https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/895088/legal-­aid-­statistics-­bulletin-­jan-­mar-­2020.pdf MOJ (30/07/2020a) Offender Management Statistics: Prison Receptions and Probation Tables @ https://www.gov.uk/government/statistics/offender-­ management-­statistics-­quarterly-­january-­to-­march-­2020%2D%2D2 MOJ (21/08/2020b) Press Release Criminal Legal Aid Review: An accelerated package of measures amending the criminal legal; aid fee schemes August 2020 @ https://consult.justice.gov.uk/criminal-­legal-­aid/criminal-­legal-­aid-­ review/consult_view/ MOJ (21/08/2020c) Government Response to the Legal Aid Review August 2020 @ https://consult.justice.gov.uk/criminal-­legal-­aid/criminal-­legal-­aid-­ review/results/clar-­consultation-­govt-­response.pdf MOJ (17/09/2020d) Diversity of the Judiciary 2020 Statistics @ https://www. gov.uk/government/statistics/diversity-­of-­the-­judiciary-­2020-­statistics MOJ (29/10/2020e) Offender Management Statistics—Prison Population and Probation Statistics @ https://www.gov.uk/government/statistics/offender-­ management-­statistics-­quarterly-­april-­to-­june-­2020 MOJ (25/03/2021a) Criminal Court Statistics: October to December 2020 @ www.gov.uk/government/statistics/criminal-court-statistics-quarterly-october-to-december-2020 MOJ (29/04/2021b) Offender Management Statistics—Prison Population and Adjudications @ https://www.gov.uk/government/statistics/offender-­ management-­statistics-­quarterly-­october-­to-­december-­2020 MOJ (24/06/2021c) Criminal Court Statistics January to March 2021 @ https://www.gov.uk/government/statistics/criminal-­c ourt-­s tatistics-­ quarterly-­january-­to-­march-­2021 MOJ (29/07/2021d) Offender Management Statistics Licence Recall, Prison First Receptions, Prison Population, Probation Statistics @ https://www.gov. uk/government/statistics/offender-­management-­statistics-­quarterly-­january-­ to-­march-­2021

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MOJ (19/08/2021e) Criminal Justice Statistics @ https://www.gov.uk/government/statistics/criminal-­justice-­system-­statistics-­quarterly-­march-­2021 National Audit Office (09/05/2018) Early progress in transforming courts and tribunals https://www.nao.org.uk/wp-­content/uploads/2018/05/ Early-­progess-­in-­transforming-­courts-­and-­tribunals-­Summary.pdf National Audit Office (13/09/2019) Transforming courts and tribunals: a progress update https://www.nao.org.uk/wp-­content/uploads/2019/09/ Transforming-­Courts-­and-­Tribunals.pdf Neill, R (24/05/2021) ‘Ensuring access to justice for all is essential for a functioning democracy’ The House’@ https://www.politicshome.com/thehouse/ article/ensuring-­a ccess-­t o-­j ustice-­f or-­a ll-­i s-­e ssential-­f or-­a -­f unctioningdemocracy Nellis, M K Beyens, K and D Kaminski, D (eds) (2012) Electronically monitored punishment: international and critical perspectives, Cullompton: Willan. Office for National Statistics (31/07/2019) Confidence in the criminal justice system years ending March 2008 to March 2018 @ https://www.ons.gov.uk/ peoplepopulationandcommunity/crimeandjustice/adhocs/010292confidenceinthecriminaljusticesystemyearsendingmarch2008tomarch2018crimesurveyforenglandandwales Pina-Sanchez, J and Linacre, R (2013) ‘Sentencing Consistency in England and Wales’, British Journal of Sociology, 53(6) 118–36 Plimmer, G (10/11/2019) ‘Outsourcing of UK civil enforcement causes concern,’ Financial Times. Prison Reform Trust (February 2017) Why focus on reducing women’s imprisonment? @ http://www.prisonreformtrust.org.uk/Portals/0/Documents/ Women/why%20women_final.pdf Prison Reform Trust Bromley Briefings (Winter 2019) Prison Fact File @ http:// www.prisonreformtrust.org.uk/portals/0/documents/bromley%20briefings/ Winter%202019%20Factfile%20web.pdf Rossner, M and McCurdy, M (2018) MOJ Implementing video hearings: a process evaluation @ https://assets.publishing.service.gov.uk/government/ uploads/system/uploads/attachment_data/file/740275/Implementing_ Video_Hearings__web_.pdf Rossner, M and McCurdy, M (July 2020) HMCTS Video hearings process evaluation Phase 2: Final Report @ https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/905603/ HMCTS391_Video_hearings_process_evaluation__phase_2__v2.pdf

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Scottish Justice Committee Report (21/06/2019) Presumption against short periods of imprisonment (Scotland) Order 2019 @ https://sp-­bpr-­en-­prod-­ cdnep.azureedge.net/published/J/2019/6/21/Presumption-­Against-­Short-­ Periods-­o f-­I mprisonment%2D%2DScotland%2D%2DOrder-­2 019/ JS052019R14.pdf ) Sentencing Council Website (September 2020) @ https://www.sentencingcouncil.org.uk/faqs/ accessed September 2020 Sentencing Council (January 2021) ‘Surcharge’ @ https://www.sentencingcouncil.org.uk/explanatory-­m aterial/magistrates-­c ourt/item/fines-­a nd-­ financial-­orders/victim-­surcharge/ Sentencing Council (07/08/2019) Public knowledge of and confidence in the criminal justice system and sentencing @ http://www.sentencingcouncil.org. uk/wp-content/uploads/Public-Knowledge-of-and-Confidence-­i n-theCriminal-Justice-System and Sentencing Shute, (2007) Satellite tracking of offenders: a study of the pilots in England and Wales, Research Summary 4, London: HMSO Skinns, C D (2016) Coalition Government Penal Policy 2015–2010: Austerity, Outsourcing and Punishment, London: Palgrave Macmillan. Sturge, G (22/12/2020) House of Commons Briefing Paper Court Statistics for England and Wales Number CBP 8372 @ https://researchbriefings.files.parliament.uk/documents/CBP-­8372/CBP-­8372.pdf Travis, A (25/02/2016) ‘Plan for ‘bespoke’ GPS tag for offenders abandoned by MoJ’, The Guardian. Travis, A and Bowcott, O (10/04/2017) ‘Cuts to legal aid prisoners ruled unlawful’, The Guardian. Terry, T, Johnson, S and Thompson, P (December 2010) Virtual Court Pilots Outcome Evaluation, MOJ Research Series 21/10 @ https://www.justice. gov.uk/downloads/publications/research-­a nd-­a nalysis/moj-­r esearch/ virtual-­courts.pdf Transform Justice (27/08/2021) ‘Computer says yes—you will pay a fine and get a criminal record’ @ https://www.transformjustice.org.uk/computer-­ says-­yes-­you-­will-­pay-­a-­fine-­and-­get-­a-­criminal-­record/ UK Government (24/06/2021) Legal Aid Statistics: January-March 2021 @ https://www.gov.uk/government/statistics/legal-­a id-­s tatistics-­j anuary-­ to-­march-­2021 UK Parliament (23/10/2017) House of Lords Parliamentary Question: Homicide Sentencing by Lord Bradley answered by Lord Keen @ https://

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www.parliament.uk/business/publications/written-­q uestions-­a nswers-­ statements/written-­question/Lords/2017-­10-­23/HL2315/ UK Parliament (02/03/2020) Debate Contribution by Bambos Charalambous, MP @ https://hansard.parliament.uk/Commons/2020-­03-­02/debates/ 20b928b0-1b4b-410e-b383-486ee2559c62/DraftLegalAidSentencing AndPunishmentOfOffendersAct2012(CommencementNo14)Order2019 Vina, G (03/12/2015) ‘Michael Gove throws out the mandatory courts charge,’ Financial Times. Vote Conservative Campaign document (05/12/2019) ‘Revealed Labour’s plans to let criminals avoid prison’ @ https://vote.conservatives.com/news/revealed-­ labours-­plan-­to-­let-­criminals-­avoid-­prison YouGov Smith (17/02/2020) Britons lack confidence in police ability to solve crime @ https://yougov.co.uk/topics/legal/articles-­reports/2020/02/17/britons-lack-confidence-police-ability-solve-crime

4 Prisons

Introduction This chapter provides a critical examination of the Conservative governments’ prisons policy for adults and young adults in England and Wales, May 2015 to March 2020. It is extended by Chap. 6, which deals with bias in the penal system and by Chap. 7, which deals with the penal system and the pandemic and extends the critical consideration of government penal policy to the summer of 2021. The critical examination undertaken in this chapter takes two forms. The internal critique considers whether the policies promulgated were consistent with Conservative penal philosophy and achieved their intended aims. The external critique considers whether the policy changes assuaged the penal crisis.

The ‘Transformation’ of the Prison Estate Two themes run throughout the Conservative administrations of the 2015–2020 period, both of which emphasise the crucial importance of the ‘modernisation’ of the physical prison estate and the expansion of prison places. For the first three governments, this meant a programme based on a ‘new for old’ policy, together with a plan to refurbish some © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 C. D. Skinns, Conservative Government Penal Policy 2015–2021, https://doi.org/10.1007/978-3-031-00797-2_4

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older prisons and by so doing add 10,000 additional prison places. For the Johnson governments, it meant abandonment of the new for old policy and a move to the refurbishment of old premises and new prison building, with the target for new prison places created rising from 10,000 to 18,000 (later 20,000) new places (see Chap. 7), justified by the down-­ stream consequences of the first Johnson government to deploy 20,000 more police officers in 2019.

The ‘New for Old’ Policy The net impact of ‘new for old’ prison policy was the exacerbation, not improvement, of harsh living conditions for prisoners and harsh working conditions for staff. The ‘new for old policy’ earmarked six prisons for closure, but then closed only three (HMPs Glen Parva, Holloway and Kennet). HMP Wellingborough had been already closed by the Coalition government in 2011 (Skinns 2016: 97) and the closure of HMPs Hindley and Rochester was postponed (HM Treasury 25/11/2015; BBC News 26/05/2016; MOJ 03/11/2016d; Travis, A 12/10/2017). The ambition that revenues derived from the sale of prisons closed would be used to support the prison building programme was soon undermined—one was not owned by the MOJ, and reverted to its NHS owner (HMP Kennet), and two were to be re-developed as new prisons (Glen Parva and Wellingborough), making the remaining prison, HMP Holloway, a key test of this policy. But this sale was delayed for three years to 2019 and produced only £81.5m, despite occupying a prime 11-acre site in Islington, North London (Islington Council Supplementary Planning Document 2018: 4; Skopeliti 08/03/2019). The policy also included plans to create 15 ‘new’ prisons via a mixture of new build, the extension of existing prisons and the re-commissioning of previously de-commissioned premises to be achieved by the summer of 2020. However, the plan to build five new prisons for women must be dismissed as a Corston-light aberration and was soon abandoned by the Female Offender Strategy, published in 2018 (NAO 07/02/2020:45: MOJ 28/06/2018c; see also Chap. 6).

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The policy thus  had a target of ten new or remodelled prisons. But again success was elusive, with only one new prison being built by the target date, HMP Berwyn, and this was a product of Coalition government decision-making in 2014 and did not achieve full use of its Certified Normal Accommodation (CNA) within the target date (Skinns 2016:98; see Table 4.2 in this chapter). However, the extension of HMP Stocken and the re-commissioning as a prison of what became HMP The Verne can be added to target accomplishment, making a total of three out of the extant  planned ten new prisons (NAO 07/02/2020:45: House of Commons Justice Select Committee 19/03/2019a:76; MOJ/HMPPS 25/07/2019: 36). Of the other new prisons, some progress was made with the plans for HMPs Full Sutton 2 (the prison planned near to HMP Full Sutton), Glen Parva and Wellingborough (later renamed HMP Five Wells), but because of various delays the completion dates went well beyond the summer of 2020, being, respectively, 2021 for Wellingborough and 2023 for both Full Sutton 2 and Glen Parva (Full Sutton 2: MOJ 12/09/2019h; Glen Parva: BBC News 02/09/2020; BBC News 15/10/2019b). Although the success of the ‘new for old’ policy was very limited, the policy did not avoid negative consequences. For example, at the time of its closure HMP Holloway was a reasonably functioning local and training jail for women offenders (HMIP 23/02/2016a) offering a scarce, London-based, resource. Its closure immediately intensified overcrowding at privately run HMP Bronzefield and eliminated a facility of this kind near central London, making prison visits much more difficult.

The Expansion of Prison Places The prison expansion plans of the successive Conservative governments expressed and supported the punitive obsession in general and the fetishisation of the prison in particular. Between 2015 and 2020 governments set a target of 10,000 new prison places. Table 4.2 (in this chapter) tracks the progress of this policy and shows that, including HMP Berwyn despite the above-expressed reservations, but at the actual not the

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Table 4.1  Prison places lost due to the ‘new for old’ policy in England and Wales 2015–2019 Prison name HMP Holloway HMP Kennet HMP Wellingborough

Closure date

July 2016 May 2016 Closed in 2012 by the Coalition government and thus not included in total HMP and YOI Glen Parva June 2016 HMPs Hindley and Rochester Closure suspended Total closed of those planned 3/6 and prison places lost

Places lost to 2019a 540 175 -

637 1352

Policy changed after July 2019 Sources: Adapted from HMIP Inspection Reports for HMPs Glen Parva, Holloway, Kennett using the stated CNA (HMIP 23/02/2016a; 04/05/2016a; 19/11/2013b, respectively) a

projected capacity, by July 2019 the 1417 prison places used at HMP Berwyn need to be added to the new places created at HMPs Stocken (206 places) and prison places at The Verne (580 places), making a total of 2203 new prison places or some 22% of the target. However, any contribution to overall prison places needs to take account of prison places lost due to the policy of the closure of old prisons. Table  4.1 (in this chapter) assesses this and suggests that some 1352 places were lost by July 2019, making the net total gain in prison places due to this policy, 851 or 9% of target. But, if the May government had survived, would the target have been achieved by the summer of 2020? Tables 4.1 and 4.2 suggest not. Perhaps 2522 new places might have been created (25% of target), assuming that HMP Berwyn was able to utilise more of its capacity, but this would have still been at the cost of the closure of three prisons with a total loss of 1352 places, making the net total gain in prison places, 1170 or 12% of total target. The policy designed to provide 10,000 new prison places signally failed. It did not meet its self-set target. It did not reduce, but exacerbated, overcrowding by withdrawing 1352 prison places without any realistic prospect that they would be replaced in a timely way given the recent track record of prison building (e.g. HMP Berwyn). And the

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Table 4.2  The impact of the prison estate transformation programme 2015–2020 and the later Johnson prison programme to the ‘mid-2020s’ Developments

Targets

July 2019 (end of July 2020 ‘Mid-2020s’ (HM the second May (projected target Treasury administration). accomplishment 15/12/2020; HM date—second Treasury March May 2021a; HM administration). Treasury 27/10/2021b: MOJ December 2021d). 10,000 new 10,000 new prison New target: prison places by places by 2020 18,000, then 2020 20,000 new prison places. Not clear whether this still excludes HMPs Wellingborough and Glen Parva. 1417 1736 -

HMP Berwyn. Not included in ‘mid-2020s’ target.a HMP The Verne 580 (opened 2018), excluded from ‘mid-2020s’ target (ibid.). New prisons at Hindley, Port Talbot, Rochester, suspended 2017 (MOJ 22/03/2017a; Travis 12/10/2017). HMP Wellingborough due to open 2021, but not clear whether still excluded from ‘mid-2020s’ target.

580

-

-

-

-

-?

(continued)

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Table 4.2 (continued) HMP Glen Parva, due to open 2023, but not clear whether still excluded from ‘mid-2020s’ target. New house block HMP Stocken (MOJ 22/03/2017a) (completed by late 2019), and excluded from ‘mid-2020s’ target. New house block HMP Rye Hill 356 places (not completed by 2019–2020 IMB August 2020). HMP Full Sutton 2, due to open 2024. Four new prisons (assuming 1680 each (MOJ 28/06/2020d; December 2021d). Prison extensions planned by the Johnson governments at HMPs Rye Hill, Guys Marsh, Stocken (again), and High Down (MOJ 12/10/2020i).

-

-

-?

206

206

-

-

-

-

-

-

1440

-

-

1680 × 4 =6,720

-

-

938

(continued)

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Table 4.2 (continued) 500 new prison places for women (BBC News 23/01/2021; MOJ December 2021d). Totals and % target 2203 of 10,000 of new places 22% met.

-

500

2522 of 10,000 25%

Net places and % of 2203–1352b target new places. 851 9%

2522–1352b 1170 12%

Continuing the exclusion of HMPs Glen Parva and Wellingborough from the target: 9598 of final 20,000 target: 48% -

HMP Berwyn—actual prison population figures from MOJ Prison Population Statistics for the months of July 2019 and July 2020 (MOJ 04/01/2019a and 03/01/2020a) b See Table 4.1 above Sources: As stated in the table a

policy was promoted at a time of widespread prison stock deterioration which rendered the use of some cells impossible, in large part caused by the significant problems associated with privatised prison estate maintenance (NAO 07/02/2020 pages 4, 17 and 23-25; see also below in this chapter). The contribution of the Johnson governments to the prison estate transformation programme was totally focused on providing announcements of new prison places with a series of claims starting in August 2019 (see MOJ 11/08/2019g) and continuing to March 2020. Little was accomplished before the pandemic struck in March 2020. The development of this policy from March 2020 is taken up in Chap. 7.

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 he ‘Transformation’ of the Organisation T and Operation of Prisons A number of changes were proposed to transform or modernise prison organisation and operation, none of these proved unproblematic. In the interests of brevity, I will focus on five, namely, the efforts to ‘marketise’ prisons and prison services, increase prison staffing, re-introduce the key worker scheme, improve purposeful activity provision and reform prison security, exemplified by a critical examination of government plans to control mobile phone use in prisons. However, the topics not covered are indicative of similar trends not the least the tendency of policies to be arbitrary and distracting from the real issues (the deployment of exemplar projects, e.g. the ‘reform prisons’ and the ‘10 prisons project’—see Chap. 2), the emphasis on harshness, exemplified by the prisoner voting ban, which continued to treat prisoners as unwanted ‘others’. The ban on smoking in prisons, in contrast, progressed without serious difficulties as the matter was mainly treated as a medical, not a criminal or even a disciplinary issue. The net result of the changes, either by direct action or by simply failing, was to leave the overwhelming emphasis on punishment intact, whilst opening the door, once again, to both austerity and whole-­ prison privatisation.

Marketising Prisons and Prison Services at Any Cost? The marketisation or outsourcing of prisons and prison services is part of a broader trend outwith and within the penal system to transfer government services and/or facilities to the private sector. The trend was manifested in prisons by whole-prison privatisation as well as the outsourcing of prison services. Three processes were at work that fitted firmly into this category. Firstly, the selective targeting of public prisons for closure, thereby diminishing their proportional and symbolic significance. Secondly, the preferment of private providers for new whole-prison developments and for prison services, thereby increasing their proportional and symbolic significance. Thirdly, the deployment of the growing number and presumed character of private operators as a ‘Sword of

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Damocles’ hanging over the heads of public services, in order to effect a general disciplining of staff in relation to pay and working conditions and to introduce forms of governance based on a transformation of staff from public servants, who are concerned with the general public good, to ‘self-­ interested actors responsible to the market and contributing to the monetary success of a slimmed-down state enterprise’ (Steger and Roy 2021:13-14) . The overall direction of policy here, in the 2015–2020 period, has been to target public sector prisons for closure, revive whole-prison privatisation, albeit no longer tied to Private Finance Initiatives (PFI), and continue with privatisation by other means, that is, via the outsourcing of prison services. Before proceeding we need to consider the claimed advantages of the privatisation of prisons, namely, that it enables a shrinkage of the state to be accomplished and that this potentially allows taxpayers to choose to spend the money they retain as they wish and that the continuing efficiency, effectiveness and economy of for-profit private providers are guaranteed by the operation of the free market. However, some kind of regalian state expenditure is inevitable and the changes do not liberate taxpayers, all they do is shift who gets paid for the service, from civil servants to the shareholders and employees of the private companies, given that there is little evidence that private prisons run more cheaply than public sector prisons. Further, whatever the reality of other markets, the market for prisons and prison services is characterised by monopsony and oligopoly (Le Vay 2016). The position in May 2015 was that there were 14 contracted out prisons (from a total of 117 catering for 18% of prisoners by 2015), run by three international companies, Sodexo, Serco and G4S. Of these prisons, 10 were DCFM prisons, that is, ‘designed, constructed, financed and managed’ prisons on 25-year contracts. The other four were constructed using public money, three were outsourced from inception (HMPs Doncaster, Northumberland and Oakwood with 15- to 16-year contracts) and one, HMP Birmingham, was the first functioning public sector prison to be transferred to the private sector after a tendering process (Skinns 2016: Chap. 5). By May 2015, many public sector prisons had been hollowed out by piecemeal privatisation of specific services with this

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process gaining particular impetus from 2012 when Chris Grayling announced the end of whole-prison privatisation and the pursuit of ‘cost reduction’ by other means (MOJ 08/11/2012b). The pattern of privatisation of catering, education, healthcare and maintenance was complex, variable and opaque. During the 2015–2020 period, all three prisons closed under the new for old policy were public sector establishments, acting to diminish their proportional and symbolic significance. All the extant new prisons planned, for which details were available (Wellingborough, Full Sutton 2 and Glen Parva), will be run by the private sector (Stewart 27/06/2018a). Thus, whole-prison privatisation has been revived and accepted across governments in 2015–2020, and a principle established that the public sector will be excluded from bidding to run any new prisons (Stewart 31/10/2018b). The Johnson governments have left the arrangements for the completion and then contracting out of Full Sutton 2, Wellingborough and Glen Parva unchanged and, when operational, these three prisons will make a very substantial contribution to the number of outsourced establishments and their overall proportional significance, with a total expected prison population between them of about 5000 places (about 6% of the prison population for just these three) when fully open (see Table 4.2). The three new prisons announced in June 2020 will be contracted out, with the public sector excluded from bidding. When and if they are completed, this will expand again the proportional and symbolic significance of private sector prisons, as will the extension of the premises of private prisons. Meanwhile, the more intensive use of private prison facilities has increased as Prison Population Statistics reveal. In February 2016, overcrowding in private sector jails was at 113% and public sector jails 111%, with an average of 111%. In February 2020, overcrowding in private sector jails was at 129% and public sector jails 109%, with an average of 112% (MOJ 08/01/2016a and 04/01/2020b). There is one exception to this trend, discounting HMP Berwyn, which opened in 2017, and was placed in the public sector, a hangover from the previous period when whole-prison privatisation was no longer the preferred option. The exception is HMP Birmingham which was, at first

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temporarily (August 2018), and then permanently (April 2019), transferred from the private to the public sector, by the second May government. This move is best understood as an exceptional moment—related to the clear failure of the prison to respond to the severe problems that it was experiencing and should not be read as a retreat from the ideological fervour to privatise. Only two months on from this, the new prisons at Wellingborough and Glen Parva were awarded to private providers. Rather it should be understood as a frequently remarked upon event, the use of public provision as guarantor of last resort, a not unfamiliar theme within the penal system (e.g. prison maintenance). The outsourcing of prison services continued, albeit in a manner rather difficult to track. Somewhat contradictorily given that prison education was to be devolved onto prison governors as from April 2019, tendering for new Offender Learning and Skills (OLASS) contracts started at the end of 2018 and the contracts were awarded in January 2019 by central government. The new contracts preserved the status quo, with some shuffling of individual contracts between providers. One of the successful providers was a for-profit company, one was a social enterprise concern and the other two were neither fish nor fowl bodies known as further education colleges (Prisoners’ Education Trust 29/01/ 2019). The privatisation of prison maintenance proved to be highly problematic and on the watch of governments between 2015 and 2020 significant changes resulted, although not a complete re-nationalisation of the service. The House of Commons Justice Select Committee Report (31/10/2019b: 30 Para 62) indicated that the failure of facilities contracts was a major reason for the current poor state of the prison estate. The NAO report (07/02/2020) made it clear that the primary motivation of the privatisation of prison maintenance, reduced costs of £79m, had not been met by 2020. Indeed, one of the providers, Carillion, collapsed in January 2018 leading to the creation of a new service, Gov Facility Services Ltd (GFSL), a not-for-profit government company to provide maintenance cover in those prisons previously contracted to Carillion. Data on privatised prison healthcare is limited, so the Parliamentary Question asked by Dr Paul Williams MP and responded to by Jackie Doyle-Price MP originally on 20/11/2017 and then corrected on 01/12/2017 (see Doyle-Price November and December 2017) provided

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an opportunity to shine a light on the then state of play. The answer revealed a varied pattern of provision with healthcare being supplied by for-profit DCFM companies (G4S and Sodexo 5  in the North West, Midlands and South East), Virgin Care Ltd (3 in East of England), Care UK (35 in London, the West Midlands and South Central regions) and Mitie (1 in the Midlands) making a total of 44 of the 67 listed (66%) supplied by for-profit companies, with various social enterprise groups supplying the rest (23 of 67; 34%). The Johnson governments have not been in a position to alter the contracts for prison education already awarded in 2019. Similarly, the position on prison maintenance seems to have been retained. Finally, the private sector was consciously intended to be a ‘Sword of Damocles’ hanging over the public sector. Thus, when Chris Grayling announced the cessation of whole prison privatisation, he also suggested reducing the costs of prisons was ‘a challenge the public sector must rise to’ as ‘the approach I am announcing today does not rule out further prison-by-prison competitions in the future’ (MOJ 08/11/2012b). Since this time various measures have been used to try to routinise and institutionalise this threat using ‘Fair and Sustainable’ (2012), competition benchmarking or the prison unit cost programme and latterly the common performance management framework (National Offender Management Service [NOMS] 2014, revised 2016), all of which have had a single focus, the creation of ‘a leaner, more affordable and more flexible workforce’ (French October 2015: 3). The period has been characterised by a reaffirmation of an ideological commitment to privatisation of whole prisons and the continued outsourcing of prison services, despite the failure of HMP Birmingham in 2018 when contracted out to G4S and the collapse of the prison maintenance company Carillion in January 2018, emphasising an inherent weakness of privatised prisons and prison services, that in the last instance, when profits made do not measure up to expectations, for-profit companies can pull out and the public sector has to be prepared to step in to provide, once again, these essential services.

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Increasing Prison Staffing The original policy proposals were made by the Conservative governments between 2016 and 2020. Increasing public sector prison staff number was seen as a way of increasing control and security in prisons, as well as enhancing prisoner reform, by creating a more stable, safer and more secure environment. They were a central plank of the Conservative strategy, with many other aspects of the ‘modernisation’ programme (including the key worker scheme [KWS]), dependent on success here (see the next section below) and clearly linked to notions of providing prisoners a ‘second chance’. Public sector prison officers who have frontline prison duties may be divided into three main groups, Band 2 uniformed operational support grades, Bands 3–5 uniformed, prison officers and Bands 7–11 operational governor grades. The Conservative government inherited from the Coalition in 2015, a prison system which had been subjected to five years of austerity, resulting in a considerable reduction in prison officer numbers including a 39% reduction in Band 2 staff, a 28% reduction in Bands 3–5 staff and a 39% reduction in Bands 7–11 staff, and an overall staff reduction of 31% (see Table 4.3 in this chapter). But this was not all—many staff felt that they had been forced out and many who remained were required to accept what they saw as less favourable new employment packages under ‘Fair and Sustainable’ and later competition benchmarking, contributing to deteriorating industrial relations, growing tensions and divisions in the prison and deteriorating material prison conditions for staff and prisoners. To try to deal with this situation, the White Paper ‘Prison safety and reform’ (MOJ 03/11/2016d: 7) asserted that ‘£100 million had … been secured to pay for an extra 2,500 prison officers’ and that ‘by the time of writing [of the White Paper], some 515 extra staff had been recruited’ and the scheme was ‘on track to deliver all 2,500 prison officers by December 2018’. Later, David Gauke, the then Justice Minister (MOJ 18/02/2019b), suggested that ‘More than 4,300 prison officers have been recruited, [and ] staffing levels are at their highest since 2012’.

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Table 4.3  National Offender Management Service/HM Prisons and Probation Service: workload, staffing, premises and aspects of the direct user experience, in England and Wales, 2009/10, 2014/15, 2019/20 and 2020/21 Year (unless otherwise stated) Workload (1)

2009/10

2014/15

Prisons

Probation

Numbers of convicted offenders sentenced by the courts to immediate imprisonment Sources: Convicted offenders sentenced to immediate custody MOJ 20/08/2021 Overview Tables, Table 5.1a; First receptions into prison, Table 3.5, Chap. 3; Licence recalls, Table 4.4, below; and Remand prison population, Table 3.4, Chap. 3 (% change from previous adjacent period). Convicted offenders sentenced to immediate custody by the courts: 2011 102,837 First receptions into prison: 2012 89,829 Licence recalls: 2012 16,481 Remand prison population: 2012 11,907

Offenders starting orders and release supervision (% change from adjacent previous period) Sources: as specified in text

Convicted offenders sentenced to immediate custody by the courts: 90,890 (−9%) First receptions into prison: 2015/16 41,283 (−54%) Licence recalls: 2016 21,770 (32%) Remand prison population: 2015 11,833 (−0.6%)

Offenders starting orders: CO: 134,253 SSO: 49,125 Total: 183,378 Prisoners starting release supervision: 47,444 Total starts: 230,822 (MOJ 30/07/2010b Table 4.1) Offenders starting orders: CO: 96,808 (−28%) SSO: 45,844 (−7%) Total: 142,652 (−22%) Prisoners starting release supervision: 47,559 (0.2%) Total starts: 190,211 (−18%) (MOJ 30/07/2015a Table 4.1) (continued)

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Table 4.3 (continued) Year (unless otherwise stated)

Prisons

Probation

2019/20

Convicted offenders sentenced to immediate custody by the courts: 75,559 (−17%) First receptions into prison: 2019/20 31,302 (−24%) Licence recalls: 25,978 (19%) Remand prison population: 2020 10,043 (−15%)

2020/21

Convicted offenders sentenced to immediate custody by the courts: 59,436 (−21%) First receptions into prison: 2019/20 19,792 (−37%) Licence recalls: 22,214 (−14%) Remand prison population: 2020 12,262 43 (22%)

Year (unless otherwise stated) Workload (2)

Prisons

Offenders starting orders: CO: 77,068 (−20%) SSO: 31,412 (−31%) Total: 108,412 (−24%) Prisoners starting release supervision: 81,928 (72%) Total starts: 190,340 (-) (MOJ 29/10/2020j Table 4.1) Offenders starting orders: CO: 53,668 (−30%) SSO: 27,644 (−12%) Total 81,312 (−25%) Prisoners starting release supervision: 59,354 (−28%) Total starts: 140,666 (−26%) (MOJ 29/07/2021b Table 4.1) Probation

2009/10

March 2012 87,531

Total prison population Source: Table 3.4, Chapter 3 (% change from previous adjacent period)

Numbers supervised by probation to end of March 2010, 2015, 2020 and 2021—CO and SSO, and release supervision on licence (% change from previous adjacent period) CO: 98,907 SSO: 43,953 Total: 142,860 Pre- and post-release supervision: 103,440 Total: 246,300 (MOJ 30/07/2010b Probation Table 4.7) (continued)

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Table 4.3 (continued) Year (unless otherwise stated)

Prisons

Probation

2014/15

March 2015 85,664 (−2%)

2019/20

March 2020 82,990 (−3%)

2020/21

March 2021 78,058 (−6%)

Expenditure

Total expenditure NOMS/HMPPS and amount spent on prisons

2009/10

2010–2011 £3.75bn/NA (NOMS 11/06/2015:16)

2014/15

£2.85bn, NA Total budget change: −24% (NOMS 11/06/2015:16)

2019/20

£4.2bn, £2.975bn Total budget change 47% (HMPPS 24/09/2020b:16) Change 2009/10–2019/20 12%

CO: 109,935 (11%) SSO: 39,927 (−9%) Total: 149,862 (5%) Pre- and post-release supervision: 113,927 (10%) Total: 263,789 (7%) (MOJ 30/07/2015b Probation Table 4.6) CO 64,845 (−41%) SSO: 37,990 (−5%) Total: 102,835 (−31%) Release supervision: 144,614 (27%) Total: 247,449 (−6%) (MOJ 30/07/2020 Probation Table 4.6) CO 60,668 (−6%) SSO: 35,841 (−6%) Total: 95,509 (−6%) Release supervision: 132,651 (−8%) Total: 229,160 (−7%) (MOJ 29/07/2021b Probation Table 4.6) Total expenditure NOMS/ HMPPS and amount spent on probation 2010–2011 £3.75bn/NA (NOMS 11/06/2015:16) £2.85bn, NA Total budget change: −24% (NOMS 11/06/2015:16) £4.2bn, £1bn Total budget change 47% (HMPPS 24/09/2020b:16) Change 2009/10–2019/20: 12% (continued)

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Table 4.3 (continued) Year (unless otherwise stated)

Prisons

Probation

2020/21

£4.6bn, £3.219bn (HMPPS 16/12/2021:16) Total budget change: 10% For prisons: 8%

Year (unless otherwise stated) Operational staff Numbers FTEs

Prisons

£4.6bn, £1.147bn (HMPPS 16/12/2021:16) Total budget change: 10% For probation: 15% Probation

2009

2014

2019

2020

Source: Prison Service Pay Review Body Reports 2010, 2015, 2020 and 2021 (% change between immediately adjacent periods) [% change 2009/10 and 2018/19] 31/12/2009 (PSPAB 10/03/2010) Band 2: 7875 Bands 3–5: 25,780 Bands 7–11: 1595 Total: 35,250 (PSPRB 10/03/2010:ix) 31/12/14 (PSPAB March 2015) Band 2: 4779 (−39%) Bands 3–5: 18,514 (−28%) Bands 7–11: 967 (−39%) Total: 24,260 (−31%) (PSPRB March 2015:viii) 31/12/19 (PSPAB July 2020) Band 2: 4666 (−2%) [−41%] Bands 3–5: 22,154 (20%) [−14%] Bands 7–11: 942 (−3%) [−41%] Total: 27,762 (14%) [−21%] (PSPRB July 2020:ix) 31/12/20 (PSPAB 19/10/2021) Band 2: 4900 (5%) Bands 3–5: 21,564 (–3%) Bands 7–11: 969 (3%) Total: 27,443 (–1%) (PSPRB 19/10/2021:viii)

Sources: MOJ (2011) Human resources work force summary report Staff in post 2010/11; NOMS/HMPPS Work Force Statistics 2020 Probation trusts March 2011: 18,655 (MOJ 2012)

March 2015 NPS: 8.760 (MOJ/NOMS 05/11/2015:5) CRCs: 8331 (MOJ/CRCs 2015) Total: 17,091 −8% NK

March 2020 NPS: 9.640 (MOJ/HMPPS 19/11/2020b:1) CRCs: NA Total: NK (continued)

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Table 4.3 (continued) Year (unless otherwise stated)

Prisons

Probation

2021

HMPP 2020–2021 (16/12/2021:8) MOJ (03/06/2021) 1000 indicates 21,926 ‘prison officers’ to probation officers 31/03/2021. This would seem to recruited up to June indicate a reversal of the 2021 and a further 1500 downward trend. But this cannot to be recruited during be corroborated without the 2021/2. PSPAB data which will not be published until 2022. Infrastructure Public and private sector prisons Administrative units Number of: 2009/10 Total 138 Probation trusts: 35 Public sector prisons: 126 Private sector prisons (counting HMP Peterborough as two): 12 (Institute of Government 2019) Proportion of prison population accommodated in private prisons: 11.3% (PRT Winter 2010:56) 2014/15 December 2015 Total 120 Probation trusts Public sector prisons: 105 combined into National Private sector prisons: 15 (NOMS Probation Service in 11/06/2015:11) 2014 and 21 CRCs Proportion of prison population formed in 2014/15 (see accommodated in private prisons: Chap. 5). 19% (PRT Autumn 2017:20) 2019/20 November 2020 Total 118 NPS and remaining CRCs Public sector prisons: 104 Private sector prisons(counting HMP Peterborough as two): 14 (Institute of Government 2019; Proportion of prison population accommodated in private prisons: 18% (PRT Winter 2021:20) 2020/21 Total prisons: 117 CRCs re-nationalised and Public sector prisons: 104 became part of the NPS Private sector prisons: 13 private in late June 2021. (HMPPS 16/12/2021:8). Some expansion of accommodation in existing prisons during the pandemic—see Chap. 7 (continued)

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Table 4.3 (continued) Year (unless otherwise stated)

Prisons

Probation

Offender direct experience

Cell sharing (i.e. two prisoners sharing a cell designed for one) Sources (as stated)

2009/10 2014/15

NK 2013 23% (19,140 in a total population of 85,000) (Howard League 02/09/2013; MOJ FOI Response August 2013b) February 2020: 38.8% of prison population (Schliehe and Crewe July, 2021) Cell-sharing continued during the pandemic but the extent is not known as no further data was available up to December 2021

Spending per probation client Source: HMIP (December 2020:6) 2003/4 £5900 -

2019/20

2020/21

2018/19 £3550 (−40%)

-

Sources: As stated in table. Table 4.4  Licence recalls to prison in England and Wales in the 12 months ending 31 March 2012, 2015, 2016, 2020 and 2021 12 months Total recalls to ending 31 March prison

Recalls of short sentence prisoners

2012 2015a 2016b 2020

Not applicable 108 6432 8903 % change 2015–2020: 514%

2021

16,481 17,253 21,770 25,978 % change 2015–2020: 51% 22,214 % change 2020–2021: −14%

Recalls of other prisoners

16,481 17,145 15,338 17,075 % change 2015–2020: 0.4% 7222 14,992 % change 2020–2021: % change −19% 2020–2021: −12%

The imposition of 12-month licence conditions on short sentence prisoners began in the spring of 2015 b The first full year of licence conditions being applied to short sentence prisoners Sources: Adapted from MOJ Offender Management Statistics Licence Recalls—all Table 5.1 (24/04/2013a, 30/07/2015b, 28/07/2016d, 30/07/2020a and 29/07/2021b). a

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HMPPS work force statistics up to December 2019 (HMPPS 20/02/2020a) reveal that, although the dizzy heights of 4300 new officers had not been reached, there had been an increase in prison staffing from 2015  in some grades and overall—between 2015 when the first Conservative government was elected and December 2019 close to the outbreak of the pandemic, the number of operational support grades (Band 2) had decreased by 2%; the number of Bands 3–5 prison officers had increased by 20% and the number of Bands 7–11 managers had decreased by 3%. Overall, taking all bands into account, there had been an increase of 14% in the 2015–2019 period. The government target of 2500 new prison officers by late 2018/2019 was accomplished, as some 3502 prison officers had been added to the work force during 2015–2019 (see Table 4.3 in this chapter). However, there are three caveats which must be made to this otherwise positive outcome. Firstly, deteriorating prison conditions had not only detrimentally affected prisoners, but prison officers, leading to about 12% of staff leaving within one year due to lack of training, poor working conditions and lack of management support (House of Commons Justice Select Committee 31/10/2019b: 38 Para 87; HMPPS Work Force Statistics Bulletin 19/05/19). This kind of fundamental wastage raises significant issues about the retention of the new recruits and the realisation of targets as well as the improvement in prison conditions that should follow from more officers being available. Subsequent HMPPS statistics not only reveal the same kind of turnover, but also that 64% of these leaving resigned rather than being dismissed or retiring, raising significant issues relating to the retention of staff (HMPPS Work Force Statistics Bulletin 16/05/2019). The Independent Monitoring Board (IMB) for prisons National Annual Report 2017–2018 (IMB June 2019:6) confirms this situation, suggesting that ‘many prisons… struggled to retain both experienced and new staff. Boards at [HMPs] Bristol, Leeds, Winchester and Nottingham local prisons reported attrition rates of between 20% and 40%; the [HMP] Bullingdon Board noted that 50 experienced staff had left during the year, 35 with an average of 9 years’ experience and 22 with an average of 14 years. Similarly, in training prisons, many reported the loss of experienced officers (18% at HMP Isis) and high attrition rates amongst

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newly recruited staff. ‘for example, 20 out of 72 [28%] left in their first year at [HMP] Wayland)’. Secondly, necessarily most of the new recruits lacked the experience and training of those staff they replaced, thereby creating a potential hazard in both ordinary and extraordinary circumstances. The IMB National Annual Report (June 2019:5) indicated that ‘four boards ([at HMPs] Brixton, Winchester, Lincoln and Nottingham) reported that half the staff had less than a year in service; at Woodhill this was 41%; two others ([HMPs] Exeter and Leicester) said that around 50% had been in post less than two years; and at [HMP] Chelmsford this was 70%. In category C training prisons, there were similar concerns: reports concerning [HMPs] Guys Marsh and Channings Wood both highlighted concerns about staff inexperience; the Wayland board noted that 45% of staff had less than a year in service; and at [HMPs] Wealstun and Erlestoke 54% and 60%, respectively, had less than two years’ experience. At [HMPs] Swaleside and Gartree, category B training prisons holding long-term sentenced higher risk prisoners, there were similar issues. The [HMP] Gartree board was concerned about a lack of consistency and ‘ownership’ or control of wings and areas of the prison; at Swaleside, the board noted that the prison had put in place a staff ‘buddy’ system and further training because of staff inexperience and concerns about control and discipline.’ The MOJ 2019 work force bulletin suggested that for Bands 3–5 officers, 42% have less than three years of service (compared with 37.8% in the previous year) (HMPPS 16/05/2019). This problem might be dismissed as just temporary, except for the continuing problem of high staff turnover. Thirdly, the adequacy of the target of 2500 extra prison officers may be questioned. Between 2010 and 2014, 10,990 Bands 2–11 staff left their jobs, some 31% of the work force. This far exceeded, in the face of the prison population changing very little, any proportional reduction connected to the closure of public sector prisons and the transfer of prisoners to private jails. Even with the recruitment noted, prison staff in 2019 were still well below the numbers in 2010: Band 2 support staff were down by 41% and Bands 3–5 staff by 13%, Bands 7–11 down by 41% and all grades by 21%. This continuing staff deficit, which the government of the 2015–2019 period had no intention fundamentally to

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redress, probably explains the continuing operational problems of prisons including growing violence, significant interruptions to ordinary activities, suspensions of the core day and the problems associated with the roll-out of the key worker scheme discussed below. In sum, recruitment was struggling to keep up with continuing staff losses, causing a continual issue of staff inexperience, a crucial factor in avoiding prisoner pressure and taking decisive action in an emergency and all of this must be set in a general context of fewer staff having to do more in crumbling prison estate and poor working conditions and trying to manage prisoners experiencing deteriorating living conditions.

The Key Worker Scheme (KWS) The full and effective implementation of a key worker scheme, as a replacement for the personal officer scheme, a casualty of years of austerity, has been fraught with difficulties including political turbulence and consequent diminished continuity and distractions, the deep-seated issues faced by individual prisons including overcrowding, a deteriorating prison estate, increasing concerns about prison safety and, probably most important of all, continuing understaffing. As a result, a fully operational KWS remains an ambition rather than an accomplishment. My comments here focus on the KWS, rather than the broader offender management in custody (OMiC) policy. The immediate background to the KWS was the first May government’s concerns about prisoner and staff safety, prison security and control in prisons, as set out the November 2016 White Paper (MOJ 03/11/2016d), which were, in large part, seen to be a product of staffing shortages. Commenting on events leading up to the KWS, the first IMB National Annual Report 2017–18 (June 2019:6) set the scene: the staffing shortage not only affected regimes for prisoners, but also reduced or undermined the capacity for positive interactions between staff and prisoners, which are a key part of safety and rehabilitation in prisons. One casualty was the personal officer scheme, designed to link each prisoner with a named member of staff, which was already in decline or fragile in many prisons.

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The absolute ground zero point of the KWS was the announcement, by the then Minister of Justice, Liz Truss, in November 2016, to recruit 2500 additional prison officers, most of whom would act as ‘new dedicated officers, each responsible for supervising and supporting around six offenders’ (Harman 01/11/2018). It is to be noted well that from the beginning, increased staffing was seen as vital for the introduction of the key worker scheme. The KWS and the broader Offender Management in Custody programme (later called OMiC) was to be piloted in one area (Greater Manchester) during 2016–2017 and then rolled out nationally 2017–2018 (NOMS 19/07/2017: 8 and 10). This first iteration of OMiC was focused entirely on the KWS and was actually ‘piloted’ in 2017 in ten closed jails for men (HMPPS 28/06/2018:6). However, according to HMPPS ‘regrettably, progress on implementing the OMiC model was delayed due to a sharp, unanticipated rise in the prison population over the summer of 2017’ (HMPPS 28/06/2018:6), although it is quite clear that the main cause of the failure was rooted in austerity and its effects. The scheme was revived in 2018, again focused on the KWS, again in male, closed prisons (Harman 01/11/2018).The overall purpose of all the changes connected to OMiC was to ensure that prisoners made constructive use of their time in custody to ‘reduce their risk of harm and reoffending’ (MOJ/HMPPS September 2018: 5). The KWS was an essential, prioritised element of this providing potential benefits by fostering constructive relations between staff and prisoners, enabling tension and violence reduction and reducing self-harm amongst prisoners. The key worker scheme had a number of features: all male prisoners in closed estate were to be allocated a key worker (six prisoners per key worker) whose responsibility was to engage, motivate and support them through the custodial period; all key work was to be delivered by trained staff, governors ensuring that time was made available for an average of 45 minutes per prisoner per week for delivery of the key worker role and within the allocated 45 minutes per prisoner per week sessions tailored to suit individual needs and the stage in the sentence (HMPPS 18/06/2018:6; MOJ/HMPPS September 2018). New staff were crucial to the KWS in two ways: they simply added to the staff resource and created the capability for time to be set aside for the key worker sessions offered by all Band

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3 staff, and ‘[a]ll new officers will receive key worker training as part of their [prison officer entry level training] course’, significantly boosting this capability. In addition, ‘all existing officers will receive their training ahead of starting these key worker duties’ (MOJ/HMPPS 18/06/2018:67). The same report notes that at the time of writing ‘currently over 30 prisons are delivering key worker sessions to prisoners’ and opined that ‘arrangements are now back on track and will begin to make a difference over the next 12 months’ (MOJ/HMPPS 18/06/2018:67 and 6). However, by the summer of 2019, some 12 months after the introduction of the second iteration of OMiC, the impact of the KWS was not known (HMIP 09/07/2019b:12). The claim by HMPPS of significant effect within one year from June 2018 proved premature and over-­ optimistic. There are clear doubts that the KWS had been effectively operationalised in all male prisons, as key worker staff, despite being apparently ring-fenced, were routinely forced to prioritise wing, over KWS, duties (IMB Reports HMPs Lewes June 2020 and Norwich July 2020). Staff training did occur although not without criticism and prisoner allocations were being undertaken, although how well this was being managed is open to question. This suggests that simply adding 2500 or so prison officers, trained or not in key worker duties, together with the training of all existing officers was not enough to ensure that the system was effectively operationalised, because prisons remained understaffed, prison conditions ensured a more or less constant state of tension, if not emergency, making the ring-­ fencing of key worker time a luxury that most prisons simply could not afford. The Johnson administrations had little time to deal with the KWS before the pandemic hit in March 2020. This later period, from the summer of 2019 to March 2020, was characterised by attempts to extend the KWS across the male prison estate, including open prisons, and then to the female prison estate. The IMB National Annual Report 2019–2020 (September 2020) noted that although, if fully functional in some prisons, the KWS produced good results (reducing applications to the IMB and providing ‘meaningful support’; IMB National Report September 2020:7), effective provision was patchy, key worker delivery of sessions highly variable and possibly deteriorating in some prisons in 2019

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(e.g. HMPs Durham and Lewes), the schemes introduced were ‘too often not sustained’ (in prisons such as Buckley Hall, Bullingdon, Chelmsford, Durham, Hewell), and ‘inspite of the obvious and urgent need for individualised and focused support for women’ not reaching women prisoners (IMB National Report September 2020:8). The Prisons Minister’s response to the IMB report was to note that ‘By the end of December 2019, implementation of key work had been completed in all 92 closed male prisons. Roll out in the women’s estate was due to commence in April 2020, however this had to be postponed due to the impact of Covid-19. Emerging findings from evaluating key work so far suggest it is improving staff and prisoner perceptions of safety in our prisons’ (MOJ 03/09/2020h). Her reply to the IMB National Report seems unaware of the possible gap between the scheme apparently being available and actually functioning as intended and the evaluation cited is not referenced and thus cannot be independently verified. To test at least one aspect of the KWS, Table 4.5 (in this chapter) presents MOJ safety in custody data. If the KWS was working, according to the official aims of the scheme, some reduction in violence and self-harm would have resulted. To March 2020, this table shows that, between 2015 and 2020, although self-inflicted deaths had reduced slightly by 7%, self-harm incidents had increased by 136%, all assaults had increased by 87%, and of these assaults on prisoners had increased by 71% and assaults on staff had increased by 151%. Comparing 2010 with 2020 the position is even worse, with self-inflicted deaths up by 29%, self-harm incidents up by 159%, all assaults up by 112%, assaults on staff up by 223% and assaults on prisoners up by 87%. All of which seem a world away from the ‘calm, orderly, purposeful places, where offenders can learn the self-discipline, the skills and the habits which will prepare them for life’ that the Minister of Justice, Michael Gove, talked about (MOJ 17/07/2015a). Up to March 2020, there is little evidence that the key worker scheme has been successfully operationalised even in male closed establishments, even after two attempts and over a period of more than two years and that what has been set in place, has had a significant positive impact on safety in custody. Limited amelioration of austerity, after years of cuts had little

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Table 4.5  Safety in custody statistics in England and Wales 2010, 2015, 2020 and 2021

Aspect of safety Deaths in custody Males Females Total

Self-inflicted deaths (SIDs) Males Females Total

Self-harm incidents Males Females Total

Assaults all Males Females

Year ending as specified Year ending 2020 as specified [Rate per 1000 Year ending 2015 prisoners] as specified [Rate per 1000 (% increase 2010 prisoners] 2015–2020) [Rate per 1000 (% increase {% increase prisoners] 2010–2015) 2010–2020) Year ending Year ending Year ending 30 June 2010 30 June 2015 30 June 2020 173 [2.2] 241 [3] 287 [3.6] 6 [1.4] 6 [1.5] 7 [1.9] 179 247 294 [2.1] [2.9] [3.6] (38%) (19%) {64%} Year ending Year ending Year ending 31 March 31 March 31 March 58 81 74 1 1 2 59 82 76 [0.7] [1] [0.9] (39%) (−7%) {29%} Year ending Year ending Year ending 31 March 31 March 31 March 13,780 20,408 52,496 (661) 11,184 6907 12,056 (3207) 24,964 27,315 64,552 [297] [320] [777] (9%) (136%) [159%] Year ending Year ending Year ending 31 March 31 March 31 March 14,281 16,257 30,189 [179] [200] [380] 635 628 [162] 1379 [367] [149]

Year ending as specified 2021 [Rate per 1000 prisoners] (% increase 2020–2021) {% increase 2010–2021} Year ending 30 June 2021 391 5 396 [5] (35%) {121%} Year ending 31 March 78 2 80 [1] (5%) {36%} Year ending 31 March 40,801 (538) 11,538 (3582) 52,339 (662) (−19%) {110%} Year ending 31 March 17,995 [237] 900 [279] (continued)

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Table 4.5 (continued) Year ending as specified Year ending 2020 as specified [Rate per 1000 Year ending 2015 prisoners] as specified [Rate per 1000 (% increase 2010 prisoners] 2015–2020) [Rate per 1000 (% increase {% increase prisoners] 2010–2015) 2010–2020)

Year ending as specified 2021 [Rate per 1000 prisoners] (% increase 2020–2021) {% increase 2010–2021}

Total

14,916 [178]

16,885 [198] (13%)

Assaults on staff Males Females Total

Year ending 31 March 2813 [35] 214 [50] 3027 [36]

Year ending 31 March 3686 [45] 201 [52] 3887 [46] (28%)

Assaults on prisoners Males

Year ending 31 March 11,481 [144]

Year ending 31 March 12,533 [154] (9%)

Females

411 [96]

420 (108] (2%)

Total

11,892 [46]

12,953 [152] (9%)

18,895 [239] (-40%) {27%} Year ending 31 March 6959 [92] 520 [161] 7479 [95] (-24%) {147%} Year ending 31 March 11,288 [149] (−47%) {−2%} 386 [120] (−50%) {−6%} 11,674 [148] (−47%) {−2%}

Aspect of safety

31,568 [380] (87%) {112%} Year ending 31 March 9168 [116] 616 [164] 9784 [118] (151%) {223%} Year ending 31 March 21,435 [270] (71%) {87%} 775 [206] (85%) {89%} 22,210 [267] (71%) {87%}

Sources: Adapted from MOJ Safety in Custody Statistics Tables 4.1, 4.3 and 4.4 (30/07/2020c and 29/07/2021b).

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real impact, with this important aspect pertaining to the treatment of prisoners continually stumbling in the face of inadequate staffing levels and the deteriorating prison estate.

 risoner Reform and the Provision P of Purposeful Activity From 2015, five years of apparently well-intentioned policies to introduce more effective purposeful activity provision in prisons in order to provide a ‘second chance’ for prisoners and reduce reoffending has had little positive benefit. Penal policy-making here demonstrated its vulnerability to political turbulence as well as its fragility as a process, with changes in policy direction being made, well before any kind of success had been achieved. It also demonstrated that prisoner reform cannot proceed in conditions of extreme disorder and deprivation and an ideological commitment that relegates offenders to a secondary status. Reform here may be understood as offenders being provided with what successive General Election Manifestos have referred to as a ‘second chance’. Purposeful activity may be understood as those aspects of prison provision which contribute to systematically engaging prisoners in education or work, providing at the very least something to do and ideally developing skills and qualifications useful in the world outwith the prison. In this category too are those courses, usually referred to as Offender Behaviour Programmes, that target desistance from crime, for example, the Thinking Skills Programme which attempts to deal with ‘staying out of trouble’ (MOJ 2010a) or programmes designed to encourage the reduction in drug or alcohol misuse and, potentially, reoffending. Purposeful activity in all its diverse forms, is separate from, but connected to, the resettlement and release planning activity provided by the CRCs, since 2015 (See Chap. 5), which specifically attempts to deal with issues of an immediate nature likely to impact on release, like accommodation, employment, income maintenance and debt management.

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The Coalition government left a troubled legacy with regard to purposeful activity, with the HMIP/Ofsted assessment of this area in the 2010–2015 period showing marked deterioration in relation to both the quantity and the quality of provision. The HMIP Annual Report 2014–2015 noted that too much time was spent in the cell, that there was too little activity outside the cell resulting from a combination of staff shortages limiting prisoner movement and, in many prisons, too little purposeful activity being provided (HMIP 14/07/2015b:50). The quality of such provision was also problematic—Tables 4.11 and 4.12 reveal that during the 2010–2015 period the percentage of male prisons inspected that were awarded ‘good’ or ‘reasonably good’ assessments by HMIP decreased from 64% to 36% and for female prisons from 100% to 80%. Ofsted inspections of the education provision were damning finding that for male prisons only about one-third of prisons inspected in 2014–2015 provided education services that were rated ‘outstanding or good’ (see Table 4.6 in this chapter). The position for female offenders was better, with some 71% being rated by Ofsted as ‘outstanding or good’ (HMIP 14/07/2015b:73). Michael Gove, as Minister of Justice in 2015, no doubt wanting to reprise his role at the Department of Education between 2010 and 2014, immediately began to talk of prisoner reform and the part that work, and more particularly, education, needed to play in the process. In his ‘Treasure is in the heart of man’ speech, given two months after his appointment as Justice Minister, Gove suggested that prisons work in that they punish and incapacitate and thus protect the community, but they do not work in the sense that they fail to rehabilitate, with reoffending rates running at 45–58%. He attributed this failure to an out-of-date prison estate, which was overcrowded and inadequate. To move towards offender reform, he argued, required changing the physical infrastructure of the prison estate, improving security and control within prisons and giving governors much greater autonomy. He went on to state that: But the most important transformation I think we need to make is not in the structure of the estate, it’s in the soul of its inmates.

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Table 4.6  The findings of Ofsted inspections of education and HMIP inspections of purposeful activity for male prisons in England 2014/15–2020/21

Ofsted/HMIP assessment Ofsted rating of the overall effectiveness of learning and skills and work: Outstanding Good Requires improvement Inadequate HMIP ratings of purposeful activity: Good Reasonably good Not sufficiently good Poor

2020/21:85–86 % (Seven pre-pandemic 2014/15 2015/16 2016/17 2017/18 2018/19 2019/20 inspections % % % % % % only)

2 32 56

3 29 53

3 49 40

0 42 44

0 29 43

0 28 53

0 29 71

10

15

9

14

29

19

0

7 18

15 29

19 32

8 36

6 29

15 21

0 29

57

47

35

41

34

46

71

18

9

14

15

31

18

0

Sources: Adapted from HMIP Annual reports (14/07/2015b, 19/07/2016c. 18/07/2017a, 11/07/2018h. 09/07/2019b, 20/10/2020c and 20/07/2021a)

This depends on ‘Liberating prisoners through learning’ that is by vastly improving the opportunities for purposeful activity. He noted that purposeful activity in general and prison education in particular were in dire straits noting ‘It is hard to imagine anything less likely to rehabilitate prisoners than days spent lying on their bunks in squalid cells watching daytime TV’. It seems churlish to remark that it was the Coalition government of 2010–2015 that materially contributed to this failure and that Michael Gove was a Minister in this government for the whole period. He went on to suggest ‘In prisons there is a—literally—captive population whose inability to read properly or master basic mathematics makes them prime candidates for re-offending. Ensuring those offenders become

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literate and numerate makes them employable and contributors to society, not a problem for our communities. Getting poorly-educated adults to a basic level of literacy and numeracy is straightforward, if tried and tested teaching models are followed, as the armed forces have demonstrated. So the failure to teach our prisoners a proper lesson is indefensible’ (MOJ 17/07/2015a). His emphasis in this speech and much of what followed, is clear— within purposeful activity, it is education, not work, which is the key to unlock the treasure in the heart of man. Improving the quality of prison education is vital. He acted on this by appointing an inquiry into prison education in September 2015, with the report being published some nine months later (MOJ 18/05/2016b). However, it is one thing, as a Minister to commission an inquiry, but it is quite another to act on the inquiry findings in order to bend the complex organisation of the prison and prison education to your Ministerial will, especially in the turbulent times of the 2015–2020 period. And so it proved. Did Michael Gove actually make any changes to purposeful activity and/or prison education 2015–2016 before being tipped out of office by events, namely, the fall of the Cameron government caused by the unexpected vote to leave the EU in the referendum in June 2016? The HMIP Annual Report 2015–2016 suggests not—in that purposeful activity in male prisons remained in a poor state. In 29% of male establishments, there were often not enough purposeful activity places for all prisoners. Many purposeful activity places were not filled in a timely manner, poor attendance went unchallenged, governors failed to give purposeful activity attention as a source of reform, prison education contractors often failed to provide cover for staff absences leading to classes being cancelled or closed altogether and prison staff shortages meant that the core day was often curtailed and prisoners could not access purposeful activity at all. HMIP found that 56% of the prisons inspected had outcomes for purposeful activity rated as ’not sufficiently good’ or ‘poor’. Ofsted rated prison education as ‘requiring improvement’ or ‘inadequate’ in 32% of all prisons for the overall effectiveness of learning and skills, 53% of prisons for prisoner achievements in learning and skills, 50% of prisons for qualifications and 65% of prisons for learning and skills leadership. The two women’s prisons inspected during 2015–2016—HMPs Holloway

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and New Hall—were rather better, albeit operating variably, with HMP Holloway being rated as ‘not sufficiently good’ for purposeful activity and gaining Ofsted ratings across the board of ‘requires improvement’ whilst New Hall was rated as ‘good’ for purposeful activity and ‘outstanding’ across the board by Ofsted (HMIP 19/07/2016c: 41-43 and HMIP Inspection reports for HMPs Holloway (23/02/2016) and New Hall 13/10/2015c). The Coates Report was published after some eight months, in May 2016 (MOJ 18/05/2016b), one month before the EU referendum and two months before the second Conservative government of the period took power. From July 2016, the first May government and its new Minister of Justice, Liz Truss, had the opportunity to pick up the reform and prison education batons. Did they do so? As far as prison education was concerned, they certainly had a clearly argued blueprint and one with a timetable, giving the final phase after which full delivery of the new prison education could be expected as after August 2017. Sally Coates set out a holistic vision arguing that education in prisons should not be confined to what was done by the education providers only. She indicated that prison education should provide initial assessment against an established baseline enabling a personalised learning approach organised through a personal learning plan for each prisoner. Prison education should provide a core curriculum, basic skills in Maths, English and ICT, high-quality vocational training and employability skills, personal and social development, support for those with learning difficulties and disabilities, music, art and sports activities and enterprise and self-employment support and training, as well as opportunities for self-directed study. She envisaged that this would require greater autonomy for governors, funding which was more sensitive to the needs of individual prisoners (including making provision for level 3 or ‘A’ level equivalent work or more), professional development for existing prison education staff and an improved process of recruitment of ‘high calibre’ graduates into the field, an assumption that learners would need considerable support to benefit from prison education, a review and vast improvement in ICT provision in prisons (including a review of the assumptions about the security of such system which greatly limited prisoner access), much greater involvement of employers in purposeful

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activity generally and a change in the inspection regime so that prison education department, Ofsted and HMIP operated with the same core performance measures. Some six months after the publication of the Coates review report, the White Paper (MOJ 03/11/2016d) committed the government to a clear stance on the role of rehabilitation and to implementing a significant number of the recommendations of the Coates review. These included increased governor autonomy making governors responsible for education as soon as existing contracts ended, introducing initial assessment and promoting personal learning plans as part of the sentence plan, introducing a core curriculum across the prison estate focusing on Maths and English, using the same awarding bodies throughout the estate to allow prisoners to be moved between prisons without interruption of their assessment, encouraging governors to work with employers and the government challenging employers to offer work to prisoners. But in less than one year, the Prison and Courts Bill inspired by the White Paper had been abandoned and the government changed, not run by a different party or even a different PM, but the same party and the same PM, having to work with a much-reduced majority. David Lidington, the new Minister of Justice, made it clear no further attempt would be made to use legislation to push forward prison reform and support the main aims of the White Paper but that he hoped that improvements in prison safety and prisoner reform would proceed ‘unabated’ (MOJ 21/06/2017c). Two months later, the full delivery phase of the re-organised prison education should have started by the schedule suggested by the Coates Report. And only four months on from this, in January 2018 the brief incumbency of David Lidington as Minister of Justice ended, and he was replaced by David Gauke. By early summer 2018 a new direction for prison education was signalled. In May 2018 the MOJ published the ‘Education and Employment Strategy’ (MOJ May 2018b), providing both an estimate of the challenges faced or failures recognised, the progress made so far and an indication of a new way forward. The new way forward proved to be based on a rebalancing of purposeful activity away from education as such, as per Michael Gove, towards basic skills, employment skills, work experience and support for released

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offenders, including making effective links with employers willing to systematically cooperate. Any progress made was to be assessed in these terms. The larger number of work opportunities within prisons was noted, with increased places in prison industries from 7500 in 2010/11 to 11,000 places by 2016 and the additional 13,000 places offered to prisoners providing cleaning and catering services within the prison. Improvements in prison education were noted and claimed on the basis of ‘an increase in the number of prisons in England rated as good or outstanding by Ofsted’ and the good ratings for prison education in Wales provided by Estyn (MOJ May 2018b: 6). The document also noted progress on effecting some of the Coates recommendations including the implementation of basic skills assessments of every prisoner at the start and end of their sentence in order to measure progress made and the development of a common curriculum and awarding bodies for the most popular subjects. The paper also noted a continued commitment to devolve education budgets to governors by April 2019. In keeping with the new emphasis on work, the challenges (failures) that were listed were concerned with the fact that only 17% of ex-­ prisoners remained in employment after one year of release, prisoners remaining uncooperative, prison education that was not sufficiently geared to the requirements of employers or the individual needs of prisoners, prison work that was not sufficiently linked to employment opportunities on release, the lack of use of release on temporary license (ROTL) and the lack of systematic involvement of employers. A number of comments may be made about this document. Firstly, it represented a change in direction before the previous destination had even been approached and showed the signal failure of penal policy-­ making. Secondly, it overestimated the achievements and underestimated the failures. For example, in terms of achievements, to say the least, the Ofsted data was used selectively. The proportion of prisons rated as good or outstanding by Ofsted did increase between 2014–2015 and 2017–2018, but even in 2017–2018 the overall grading still suggested that the majority (58%) either required improvement or were inadequate and very small numbers for Wales rendered any generalisation impossible. Similarly although positive views are expressed about the recommendations of the Coates inquiry, in fact only two actual achievements are

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listed together with one further promise. Finally, on the issue of release on temporary licence, whereas what was said was correct, that it had been underused, this was so because of government policy on the matter erring on the side of caution and limiting resources making the processes involved very difficult (HMIP 14/07/2015b:14; see also MOJ 15/05/2019d). Fortunately, we do not have to rely entirely on the MOJ 2018 document to obtain an estimate of progress on the Coates recommendations. The Prisoners Learner Alliance (May 2019) published a review of progress in May 2019, the details of which are set out in Table 4.7 (in this chapter). The report suggested that overall ‘fair progress has been made in some major areas…[but]… it is too soon to assess the effectiveness of the new funding arrangements and the new contracts that underpin them’. This position is supported by the assessment as set out in Table 4.7 which suggests that out of the 16 recommendations, many of them accepted by the 2016 White Paper, only 6 were near to completion by 2019 and far too many were only just off the starting blocks, after no less than three years. The report had led to little resurgence in the effectiveness of learning and skills and work or purposeful activity as is shown by Tables 4.6, 4.11 and 4.12. The overall effectiveness of learning and skills was rated as problematic (either inadequate or requiring improvement) in 66% of the male prisons inspected by Ofsted in 2014–2015 and purposeful activity was rated as not sufficiently good or poor in 75% of inspected male establishments in 2014–2015. The comparable figures for 2018/19 were 72% and 64%, respectively. Progress in female establishments in the same period was also limited, albeit from a stronger baseline—with purposeful activity being rated as not sufficiently good or poor in 29% of establishments in 2014/15 and 34% in 2018/19. So after the failure of the Coalition government to improve purposeful activity, we are left with a situation in which after some four years, little progress had been made and again a change in direction was signalled. The Johnson administrations had little time to have an impact on purposeful activity before the new coronavirus struck the system. The HMIP Report 2019–2020, with data mostly collected before the pandemic, found that in male prisons inmates ‘were locked up with too little to do’ (20/10/2020c:45) and that the quantity of purposeful activity provision

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Table 4.7  The Prisoner Learner Alliance (PLA) assessment of the MOJ implementation of the Coates Report recommendations by spring 2019

Coates’ recommendation summary

Progress by spring, 2019 Three-point scale, with 3 being complete implementation Comment made by PLA

1. All prisons to 1/3 undertake an initial assessment of prisoners using a common tool and screen for learning difficulties/disabilities.

2. Every prisoner to have a personal learning plan, derived from the initial assessment and produced in a common digital format. 3. The use by all prisons of a common set of educational performance measures. 4. Ofsted should carry out inspections using the same performance indicators as in mainstream further education. 5. HMIP should give an overall performance measure with educational performance receiving a separate score. 6. Professional development should be provided for relevant staff.

1/3

1/3

2/3

From April 2019, there are ‘contractual arrangements regarding assessment and screening of all sentenced prisoners on reception’. Common tool for screening had not been implemented at the time of the PLA report. The infrastructure was put in place to enable this as from April 2019.

Providers are required to do this but the new system was still in development at the time of the PLA report. The common framework was put in place and was due to start from September 2019.

2/3

HMIP reviewed the scoring of purposeful activity and gave more weight to Ofsted assessments.

1/3

Variable effect achieved, more effective on POELT than for senior managers and governors. (continued)

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Table 4.7 (continued)

Coates’ recommendation summary

Progress by spring, 2019 Three-point scale, with 3 being complete implementation Comment made by PLA

7. The recruitment of 1/3 high-quality teachers for the sector. 8. A new scheme should 2/3 be set up to recruit high-calibre graduates into the sector. 9. Revision of existing 3/3 funding so that governors and providers are able to design a curriculum that meets the needs of individuals. 10. Governors should be 1/3 free to design an incentives framework to encourage the take-up of prison education. 11. All prisons should 1/3 plan for the need for learning support and adopt a whole-prison approach to identifying such need. 12. Governors should be able to use their education budgets to fund work at level 3 and above.

2/3

Progress in this area is ‘too slow’. ‘Unlock’ was set up modelled on ‘Teach First’. One hundred and fifty graduates working in 14 prisons. But ‘Unlock’ only very small scale. ‘Governors now have more control of the education provided in their prison.’

New IEP scheme had not been published by the time of the PLA report. When it was published, it did not provide incentives for prisoners to engage in education. ‘Gradually improving’ with Ofsted finding that ‘over half of prisons inspected in the last year were actively identifying and supporting prisoners with learning difficulties/ disabilities’. At the time of the PLA report, governors had the flexibility to decide to use the budget in this way. (continued)

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Table 4.7 (continued)

Coates’ recommendation summary

Progress by spring, 2019 Three-point scale, with 3 being complete implementation Comment made by PLA

13. There should be a 1/3 planned investment in digital infrastructure in order to enable more flexible learning across prisons. 14. The security 1/3 arrangements concerning ICT should be reviewed. 15. Existing employment 1/3 support organisations should be reviewed. 16. Government should develop an approach to encourage employers to provide work in prisons and employ prisoners on release.

2/3

Funding has been made available to refresh the virtual campus (VC), but ‘potential of in-cell technology and personal devices remains unrealised’. ‘Little progress in this area.’

Doubts over whether funding for information, advice and guidance is actually being deployed. New ‘Future Network’ set up in 2018 by HMPPS with 140 employers signed up by the time of the PLA report.

Sources: Adapted from Coates Report 2016 (MOJ 18/05/2016b) and Prisoner Learner Alliance (May 2019)

was still inadequate and the quality generally poor. In 2019–2020 only 36% of prisons inspected provided purposeful activity that was ‘good or reasonably good’ (100% in jails for women) and Ofsted inspections revealed that quality of prison education in male prisons was still poor, with only 28% being outstanding or good (see Tables 4.6, 4.11 and 4.12). It is impossible to conclude other than that the attempts to effect much-needed improvement in purposeful activity and prisoner educational provision, mainly in male prisons and to a lesser extent female establishments, have not been successful. The net result is to sustain the overall punitive character of the prison and to provide an experience for prisoners which suggests that not only are they not involved in

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decision-­making about them, but also that they are not to be treated in a manner which places priority on their resettlement needs and thus not to be treated humanely or decently and in a procedurally just manner.

Control and Security A final important strand of Conservative policy on prison organisation and operation was aimed at improving prison security. I will deal with only one of the elements of this policy, namely, the attempt to limit the supply and demand for mobile phones. On this matter, successive governments have been astute enough to recognise that there was a need to limit supply and demand, but not astute enough to avoid placing too much emphasis on limiting supply and not enough on demand reduction through providing legal methods of communication. They have therefore added to the pressures on prisoners, failed to stimulate potential sources of reoffending reduction and failed to control the issue. The possession and use of mobile phones in prisons was recognised to pose a threat, in that they could be used by prisoners to organise crimes on the outside, intimidate the friends or relatives of fellow prisoners, victims or witnesses, organise crimes committed within prisons and co-­ ordinate the shipment of contraband into the prison for personal use or profit. The response was to make illegal both prisoner possession and use of such phones and for others to supply them or use them to communicate with a prisoner whilst in prison (Prison Act 1952 as amended by the Offender Management Act 2007 (Section 22 (1(3) (b))); Crime and Security Act 2010). The effect of the legislation was further to legitimate the searching of visitors and staff as well as inmates and the deployment of search devices like the ‘Body Orifice Security Scanner’ (BOSS chair) first introduced into prisons in England and Wales in 2007 (BBC News 20/12/2007). Subsequent legislation gave prison governors the power to destroy property, including mobile phones, confiscated from prisoners (The Prison (Property) Act 2013) and recognising that mobile phones were still finding their way into prisons to allow for the deployment of ‘blocking’ technology (Prisons (Interference with wireless telegraphy)

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(PIWTA) Act 2012). However, the deployment of ‘blocking’ and related methods, by 2015, was limited. The position in 2015 was far from ideal, even with the provisions noted above. Possession of mobile phones in prisons and their use was widespread as revealed by seizure statistics, with some 15,000 phones and sim cards being recovered in prisons in 2015 (MOJ 11/08/2016c: see also Table  4.8 in this chapter). There is every reason to suppose that those phones found were the tip of a very large iceberg. Political commitment to reducing the possession and use of mobile phones in prisons has apparently remained undiminished in the 2015–2020 period (see statements made by Conservative Party General Table 4.8  ‘Finds’ in prisons in England and Wales, in the 12 months to 31 March 2017, 2018, 2019, 2020 and 2021 2018 (% change from previous period)

2019 (% change from previous period)

2020 (% change from previous period)

2021 (% change from previous period) 20,295 (-6%) 2177 (−44%) 9384 (5%)

Find/yeara

2017

Drugs

10,666 13,118 (23%) 1698 3036 (79%) 3389 4707 (39%)

18,435 (41%) 4342 (43%) 6887 (46%)

21,574 (17%) 3922 (−10%) 8923 (30%)

-

2604

Mobile phones

9235

Sim cards

4186

10,643 (15%) 4729 (13%)

Memory cards

591

Chargers

5945

Other phone related

1316

5897 (126%) 11,421 (7%) 5366 (13%) 813 (12%) 8110 (16%) 1582 (10%)

5872 3752 (−0.4%) (−36%) 11,792 (3%) 8793 (−25%) 5510 3991 (3%) (−28%) 1111 741 (37%) (−33%) 8771 6564 (8%) (−25%) 1744 1245 (10%) (−29%)

Drug equipment Alcohol and distilling equipment Tobacco

727 (23%) 6983 (17%) 1440 (9%)

Data not available until 2017 Sources: Adapted from MOJ/HMPPS Annual Digest of Statistical Data 2018 to 2021 (25/07/2019, 30/07/2020b and 27/07/2021b) year ending 31 March a

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Election Manifesto April 2015:59; the MOJ 03/11/2016d: 7; Section 24 of the Prison Safety and Security bill February 2017; David Lidington Letter 21/06/2017c; David Gauke MOJ 06/03/2018a) but has taken the form of emphasising supply limitation, not demand reduction. However, whereas announcements have proliferated, impact has been limited, due to technological limitations, misplaced conceptions of austerity and then continuing political turbulence, which rendered steering a steady course difficult, if not impossible. Various interference methods have been enabled since 2015, including ‘grabbing’ methods like the ‘IMS’ catcher technology, trialled by the Scottish government in HMPs Shotts and Glenochil in February 2014, and found to be disappointing in effect and ‘disproportionate’ in cost (Rose 11/02/2014; ‘Deadline News’ 16/12/2015; BBC News 14/11/2017) and powers to require mobile phone operators to disconnect phones, under a Telecommunications Restriction Order (Serious Crime Act March 2015) and Prisons (Interference with Wireless Telegraphy Act December 2018), the latter being seriously delayed by the 2017 general election. A new method was promoted by David Gauke, in April 2019. He announced that ‘Specialist mobile detection technology is to be used to detect and seize illegal phones used by prisoners’ (quoted by BBC News 21/04/2019a; see also MOJ 21/04/2019c). This equipment apparently allows prison officers to pinpoint mobile phone signals down to prison cells. It works by sending real-time alerts when a mobile is detected in prison, shown on a digital heat map which identifies the strength of the signal. This allows prison officers to pinpoint the location of the phone down to the exact cell. Staff can also track data over time to watch for patterns emerging, for example, when inmates conspire to smuggle drugs into prison. This intelligence can be analysed and action taken in conjunction with law enforcement groups (BBC News 21/04/2019a). A few months later, after the change of government, the first Johnson administration announced, in August 2019, as if it was a new idea, a ‘£100m crackdown on crime in prisons’ and that this would consist of, amongst other things, ‘cutting edge technology to detect and block mobile phones’ in prisons and the then Justice Minister is quoted as saying that ‘this

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funding will have a transformative effect on prisons’ (see MOJ 09/07/2017e; MOJ 11/08/2019g). In the meantime, we must await the transformation. Recent figures (see Table 4.8) suggest steady increases with ‘finds’ incidents of mobile phones, SIM cards, chargers and other phone-related equipment, increasing from 2016–2017 to 2019–2020 (see Table 4.8). It is undoubtedly the case that seizures made underestimate the extent of mobile phone usage and ownership in prisons. Although the rhetoric has been in place to cut the supply of mobile phones into prisons, the implementation of the measures has been patchy and the impact limited. This is clearly due to failures in the technology involved and partly due to the lack of concentrated attention on the matter caused by the overall political crisis, and the resultant changes in Minister of Justice and Prison’s Ministers, combined with the impact of neo-austerity. But it is also due to how the problem has been understood. Morally deprived offenders need control, in the ideological tool bag of the Conservative governments. As offenders they do not qualify for equal consideration with victims or citizens. As a result, government policy in the 2015–2020 period has neglected the demand for mobile phones by largely, until recently, ignoring the legitimate communication needs of prisoners, despite such needs being made explicit by both the HMIP Themed Report of 2016 (HMIP 23/08/2016d) and, subsequently, the two Farmer Reports (MOJ August 2017f and June 2019e), stating that, on the basis of evidence from a variety of sources, contact with families was a very significant factor in offender rehabilitation and that legitimate phone calls provided an important source of such contact between prisoners and their families. The basis of the neglect is made explicit by HMIP themed report which stated that: ‘We would expect prisoners to be able to make a [legitimate] call every day, but this was not achieved in all of the establishments we inspected in 2015–16’ (HMIP 23/08/2016d:6). Such a situation was confirmed by the Farmer Report (MOJ August 2017f ) when it was noted that prisons provided ‘poor access to telephones’ (MOJ August 2017f: page 42 Para 8).

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The reasons given for this failure to provide appropriate access to phones are fivefold. Firstly, normally prisoners can only satisfy this communication need by making use of wing phones, and wing phones are shared with up to 60 other prisoners and access to them is limited to time-restricted association periods. This resulted in some 26% of prisoners surveyed by HMIP indicating that they had had problems getting access to phones during association, and this problem was greatest in local prisons (39%) and often resulted in fights and outbreaks of disorder (HMIP 23/08/2016d: 6). Secondly, prisoners frequently cannot access the phones at times that fit in with family timetables (ibid.: 6). Thirdly, because prisoners can normally only access wing phones during association and association has to be used by prisoners for multiple, necessary tasks, ‘prisoners may have to choose what to prioritise—for example making a phone call or having a shower.’ Of course this depends on association being available which is not always the case (HMIP 23/08/2016d:6). Finally, both HMIP (23/08/2016d:6) and the Farmer Review Report (August 2017 page 104; Para 307) suggested that calls were often too costly. The solution to the problem of much legitimate demand for communication via electronic means and the dire facilities on the ground in prison to meet this demand have been obvious for some time, but In-cell telephony development has been very slow in the 2015–2020 period. In-cell telephony has the potential to provide a relatively private, on-­ demand means of communication which reduces or eliminates troublesome wing phone queues and discrepancies between prison and domestic routines. Security can be maintained (calls can be recorded and only allowed to restricted, pre-approved numbers) and the calls can be made at the prisoners’ expense. In-cell phones can also allow prisoners access to prisoner support services, such as the Samaritans and MIND, potentially therefore reducing the growing problem of self-harm and mental distress and the pressure on limited prison services. Although HMIP (23/08/2016d:30) were able to confirm the in-­ practice benefits accruing from in-cell telephony, they found that only ‘a small number of prisons have in-cell telephones’. A project known as ‘transforming prisoner telephony’ (TPT) was launched in 2016 (MOJ 07/07/2017d), and by July 2018, 20 prisons (a little under 20% of all

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prisons) were equipped with in-cell telephony. Two further initiatives then followed committed to making in-cell telephony available to 50 prisons (just under 50%) by March 2020 (Grierson, J 10/07/2018). The policy was justified by the then Minister of Justice, David Gauke, on the grounds that in-cell phones ‘help [prisoners] maintain family ties and significantly boost their chances of rehabilitation’ and boost the ‘government’s wider drive to bring stability to the prison estate by reducing the tensions which can arise from queuing to use communal phones and providing an alternative to illicit mobiles, which fuel crime and violence’ (MOJ Press Release 28/12/18). But progress has been slow. When the new coronavirus struck prisons in March 2020 and the government decided on a ‘closure’ strategy (see Chap. 7), the system was ill-prepared in terms of meeting the much-­ intensified legitimate communication needs of prisoners. The HMIP Annual Report for 2019–2020 (HMIP 20/10/2020c) was based on the inspection 52 prisons. My examination of a 50% sample of these prisons found that 13 (50%) had in-cell telephony installed at the time of the inspection, 3 (12%) were in the process of the installation of the infrastructure and 10 (38%) prisons/YOIs did not have in-cell telephony, at the time the inspection was carried out. The Prison Reform Trust ‘CAPPTIVE’ report looking at government responses to the COVID-19 pandemic in prisons noted, in passing, that in July 2020 some 50 prisons had in-cell telephony installed and 6 were in the process of so doing (PRT CAPPTIVE Project Report 1 16/07/2020:12), supporting this conclusion. The evidence above suggests that although no extra impetus had been given to the process by the Johnson administrations, neither had it lost thrust and the target had been met. However, given the virtually universal acceptance on the outside of the availability of instant communication, the importance of family contacts to reducing reoffending and the contribution of queuing to use wing phones to prison disorder, perhaps the timeliness of the achievement may be questioned and the adequacy of the target doubted. Perhaps, the faint praise of HMIP in their Annual Report 2018–2019 (09/07/2019b:11, my emphasis) still applies: The gradual roll-out of in-cell telephony has been welcomed in those prisons where it has taken place.

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The transformation of the organisation and functioning of prisons met with limited success with the results contributing to no diminution in the harshness of imprisonment for prisoners or improvement in the working conditions of staff.

 he ‘Transformation’ of Prison External T Scrutiny Arrangements The limited, new public sector management-based forms of external scrutiny proposed by the first and second Conservative governments of the 2015-2020 period were shipwrecked on the rocks of Brexit-inspired political instability, with, until only very recently, a mere fragment of the disaster, the ‘Urgent Notification Protocol’ leading to the ‘urgent notification’ procedure (UN), being used as a pragmatic instrument to deal with the worst possible cases of prison failure. More recent interventions suggest a revival of government concern about these matters, although the direction this will take remains unclear (see MOJ August 2020g). Prisons do not just incarcerate prisoners; they also hold information captive. Prisons construct an opaqueness which prevents information getting to the outside world. This is connected to four factors: prisoners generally occupy a low position on the hierarchy of credibility; prisons are ‘out of sight out of mind’ for many members of the public; prisons operate within an historically and legally constructed framework of secrecy, connected to particular interpretations of the Official Secrets Acts; and the Prison Act 1952 and associated Prison Rules and Prison Standing Orders and Instructions, adopt an enabling stance based on expedience and administrative convenience. However, a number of diverse developments during the late twentieth and early twenty-first century have raised serious questions about the opaqueness of prison operation. Four factors are pertinent—the decline of deference, the emergence of codes of human and prisoners’ rights, greater openness itself contributing to a self-promoting spiral of exposure, scandal and the call for more openness and movement to forms of public sector management.

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The first factor concerns a general trend which is not peculiar to prisons, the questioning of traditional patterns of authority usually summed up as the decline in deference, a thesis widely supported by a variety of sociologists and political scientists (Giddens 1991). However, although there is much agreement about the reality of the process, there is much dispute as to its causes and effects. What probably began as a questioning of traditional, patriarchal authoritarian patterns can be applied to a questioning of any kind of authority, including that of individuals and groups (like all politicians, who may be seen as members of ‘elites’ committed to fostering their own particular interests) and elected bodies (as ‘stealing the vote’ as in the attack on the Capitol Building in Washington, USA, in January 2021). It has been used to explain the bypassing of accepted institutions or processes, in order to pursue political goals as shown by the Johnson governments’ numerous efforts to avoid parliamentary scrutiny during the Brexit crisis (e.g. the illegal proroguing of Parliament), and the pandemic (when discussion by parliament of the new coronavirus regulations was truncated). With specific regard to prisons, the decline in deference precisely cuts across, questions and further undermines existing authority patterns resting on expedience and organisational convenience (convenient, for whom?). The decline in deference is closely associated therefore with ideologies which place a premium on individualism of left or right but has been particularly promoted by the growth of what Reiner refers to as egoistic individualism (Sutcliffe-Braithwaite no date; Reiner 2016) and associated with developments between 1970 and 2020. The second factor concerns the articulation and institutionalisation of the rights of individuals nationally (Human Rights Act 1998), pan-­ continentally (European Convention on Human Rights ECHR 1950) and internationally (International Declaration of Human Rights (1948) and the extent of the penetration of these codes into the rules and practice of prisons via national (but not in England and Wales), pan-­ continental (Council of Europe Prison Rules  2006) and international (UN Optional Protocol Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) standards. All operate within a rights-base discourse. The Council of Europe Prison Rules were first articulated in 1973 with the latest revision being made in

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2006 (Council of Europe Prison Rules 2006 protocols). The rules provide basic guidelines for prison conditions covering a number of areas including family contact (Rule 24), exercise and recreation (at least one hour of open-air exercise per day Rule 27) and the provision of purposeful activities (Rules 25, 26 and 28). But they have no legal standing in the UK. A National Preventative Mechanism (NPM) was set up in 2009 in order to meet the obligations of the UK under OPCAT. The UK ratified OPCAT in 2003. The NPM, using HMIP to coordinate efforts, discharges its obligations by relying on 21 organisations to engage in practically monitoring detention facilities. The 20 or so organisations, covering the whole of the UK, include for England and Wales many of the scrutiny bodies for prisons noted below, for example, the HMIP and the IMB. Thirdly, the decline in deference and the trend towards human and prisoners’ rights have led to a partial lifting of the veil of secrecy, which in turn has led to the further development of accountability. Unease about how various prison disturbances in the 1970s were handled led to the May Committee inquiry (May 1979). The May Committee discharged its concern on the matter by recommending the resurrection of the prison inspectorate, some form of which had operated in the nineteenth century, but had fallen into disuse, in part, as a result of the nationalisation of the prison system in 1877 (Radcinowicz and Hood 1990: 570). The May report resulted in the appointment of the first Chief Inspector of Prisons in 1981. This then created a window through which to observe prison life, even if the window was still partly obscured and action for change was reduced to a form of banging on the window in the hope that someone would hear and do something. Both the existence of serious prison disorder and the way it was handled also played a part in the creation of two further bodies which can, at least to some extent, hold prisons to account. The origins of the Board of Visitors go back to the nineteenth century and were firmly rooted in the traditional patterns of authority of a proprietarian society and thus failed to recognise that anything was amiss in an arrangement that allowed members of the Board to simultaneously act in a judicial capacity punishing prisoners for disciplinary infractions and an independent monitoring body of the prison. However, the prison disturbances in the late 1980s and early 1990s led to the appointment of the Woolf inquiry and the

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resulting report acknowledged that the role of Boards of Visitors was contradictory. The report recommended a separation of the two key roles, which led to the formation of the Independent Monitoring Board for Prisons (IMB), with the IMB taking on the monitoring function and a separate system of adjudication undertaking the judicial function. However, the IMB are limited in that they cannot require the Minister or the prison governor to make changes as once again they lack a statutory footing and suffer from the same absence of statutorily defined prison standards and purposes, as well as a structured inability to criticise penal policy. The members of the IMB are also, part-time, volunteers not selected for their knowledge of the prison system and at a disadvantage when dealing with full-time, paid prison officials and Ministers backed by a full-time civil service. Nevertheless by their efforts and reports, the veil has been partly lifted on what happens in prisons. A second development emerged from the Woolf and Tumin report (1991) and was directly connected to a key accountability mechanism, the prisoners’ complaints system. This system was seen to be seriously defective in a number of ways by Woolf and Tumin and recommendations were made to reform the system. The Office of the Prison Ombudsman (PPO) was accordingly created in 1994 and was initially concerned with acting as an overview mechanism for prisoners’ complaints. Since 1994 its remit has been expanded and now includes dealing with complaints from offenders on probation (since 2004), investigating all deaths in custody and conducting special investigations. However, the PPO has not been placed on a statutory basis, has no statutorily defined standards to enforce and is put in a position where comment on prison policy is not encouraged. Finally, we must take account of the trend towards what has been called ‘the new penology’ (Feeley and Simon 1992) or ‘public sector management’ (McLaughlin, Muncie, and Hughes 2001). This was ‘a response to the emerging penal crisis in the 1970s and 80s … based on not just a squeeze on resources, but a loss of overall rationale and precipitated increasing calls for improvements in effectiveness, efficiency and economy … that in turn led to calls for privatisation’ (Skinns 2016:210). In turn, privatisation led to a further managerialist forms, ‘new public sector management’ rooted in claims to modernisation linked to transparency

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and accountability and ‘based on PBR [payment by results]’ (ibid.). Almost inadvertently therefore, these processes exposed prisons to greater scrutiny, with the potential, as noted above, for the results to justify yet further scrutiny, even if attention here focused (mainly) on value for money. Nevertheless, by 2015, prisons remained cloistered, opaque institutions that were subject to a variety of forms of administrative accountability, all of which had severe limitations of some kind. There were no statutorily defined prison standards enabling the Minister to simply either ignore entirely the comments made or blandly state that such comments were out of date due to subsequent changes having been introduced or that change was planned and there was a need to wait and see the result. Ministerial responsibility for operational or policy matters had become further attenuated by the recent tendency to engage in denial and spin and to brazen out potential problems. Such an approach may be illustrated by reference to repeated ministerial insistence during the 2010–2015 period, and indeed between 2015 and 2020, that the prison system in England and Wales was not in crisis. But then a very different, even apparently radical, what I have called above ‘new public management’, view was taken on the matter by the 2016 White Paper (MOJ 03/11/2016d), deriving from the ideological fervour associated with the de- and re-regulation and outsourcing of school provision. This change is firmly welded to another change, namely, the move to greater governor autonomy, and based on the assumption, made throughout the whole period, that increased governor autonomy would lead to significant, positive change. With regard to schools, the changes made assumed that de-regulation—expressed through head teacher autonomy, severing the connections between schools and local government, more free schools, ‘parental preference’ usually misunderstood as choice—combined with re-regulation based on a central government defined national curriculum and publicly available league tables making use of predefined indicators- would improve the education of children. The White Paper ‘Prison safety and reform’ (MOJ 03/11/2016d: Chapter 4) proposed the extension of governor autonomy in a variety of areas of prison life and then went on to note:

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‘But we also need to make sure that governors are held to account for the progress prisoners make. We will publish league tables to show which prisons are making real progress in getting offenders off drugs and developing the education and skills they need to get work. This will highlight success and lay bare failure’ (03/11/2016d: 3).

Alongside these changes, it also proposed reform of ‘how the system is configured around governors’ making the role of the Minister clear, ‘including how she will account to Parliament for her performance’ (ibid: 13). The White Paper tackled these matters by proposing the creation of a statutory framework based on four purposes—namely, ‘public protection, safety, reform, and preparing prisoners for release’ (ibid.: page 15, Para 62). The aim here was to create a common set of goals for staff and to frame the responsibility of the Minister of Justice. Not all tasks were allocated to governors though. The White Paper proposed that the Minister retain certain responsibilities including making provision for the overall performance of the prison system, funding prisons through a ‘transparent formula’, negotiating with governors a performance agreement, setting the mandatory basic rules, monitoring performance re the agreement made with governors, taking decisive action if performance is below standard, and allocating prisoners to prisons, managing prison system capacity, appointing governors in the public sector prisons and playing some role in the appointment of directors of private prisons and intervening where there are performance issues (MOJ 03/11/2016d: Paras 64, page 15). The White Paper also attempted to clarify the role of the Minister of Justice vis-à-vis parliament, suggesting that the Minister would be responsible for reporting on the progress of the prison system as a whole with regard to the four purposes, rather than individual prisons or about the details of operational matters. The new role would be supported by the publication of league tables. The White Paper suggested that the proposed system would lead to improvement in how the Minister would be able to hold newly ‘independent’ governors to account via the production of appropriate evidence linked to metrics derived from the four purposes and published as league

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tables. The following metrics were set out although it was expected that league tables would consist of an edited and simplified form: • ‘Public protection’—defined in terms of ‘security’ and measured by escapes from closed and absconds from open prisons; the extent of prisoner compliance with ROTL and other security issues connected to searching, control of prisoner movements and escorts; • ‘Safety and order’—also to be measured using three metrics including assaults on staff and prisoners, self-harm incidents, staff and prisoner perceptions of safety and the rate of incidents of prison disorder; • ‘Reform’—again three metrics are proposed including a measure to track distance travelled in terms of substance misuse (in the short-term Random Mandatory Drug Tests that are positive), the number of hours worked in industry by prisoners, the quality of work opportunities and time spent out of cell; at first measures of basic Maths and English before and on release, later distance travelled measure using learning plans; and with regard to families a measure of the quality of the prisoners’ family relationships; • ‘Preparing for life after prison’— the employment rate of discharged prisoners, the rate of prisoners gaining suitable accommodation on release and the rate of prisoner take up of education or training on release (MOJ 03/11/2016d: 23–25). The White Paper also put forward a marked ‘sharpening’ of the scrutiny arrangements pertaining to prisons including: • placing HMIP on a statutory basis and extending its remit to include not only the treatment of prisoners but also the extent to which prisons were achieving the specified purposes, • a formal rectification process where the HMIP’s findings can act as a trigger for the Secretary of State to intervene in the worst cases with a requirement to provide a response to HMIP; • an exploration of placing the PPO on a statutory basis; and • expecting IMBs ‘to continue their critical role’ with strengthened governance and accountability arrangements (MOJ 03/11/2016d Page 18: Para 82).

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The broad commitment to accountability through statutorily defined standards was welcomed by a variety of penal groups including the Howard League for Penal Reform (November 2016) and the Prison Reform Trust (MOJ 03/11/2016d). In particular, the notion that the Secretary of State would have personal accountability to parliament for ‘what prisons are like and how they perform’ was seen as a positive proposal by the Prison Reform Trust. However, the proposals were criticised for five main reasons. Firstly, it was felt that ‘there [was] a danger that efforts to measure performance will distract from tackling the daily carnage we are seeing in prisons across the country’ (Howard League for Penal Reform November 2016). Secondly, the Prison Reform Trust (November 2016) was critical of many aspects of the standards proposed. Their first critical point concerned not so much the content of the standards, but how they were to be formulated. The PRT suggested that this task was one for parliament not the MOJ alone. In relation to the content of the proposed standards, the PRT suggested that the White Paper failed to take sufficient account of the role, following the Woolf Report in the 1990s, of standards relating to ‘decency and fairness’. Also in relation to the content of standards, the PRT suggested that the third standard ‘preparing for life after prison’ conveyed too passive a role on prisoners as any effective reform must depend on ‘his or her agency to be durable’. Thirdly, the PRT (November 2016) raised questions about how the various ambitions in the White Paper, including accountability, were actually to be delivered in the then current political context. Fourthly, the PRT (November 2016) questioned whether the new zest for greater transparency and accountability found in the White Paper extended to other aspects of prison policy including, for example, the planning of the future prison estate. This is a significant point and suggests that somehow the White Paper envisaged a fairly radical overhaul of accountability in relation to most operational matters but that prison policy-making and, indeed, prison finance were still jealously guarded fiefdoms of the MOJ. Finally, speculatively, although these proposals did seem to introduce much stronger ministerial accountability and indeed set standards by

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which to judge prison conditions, thereby potentially opening the door for legal claims by prisoners as well as strengthened demands by HMIP for change, it remained the case that the package was part of a more general move towards governor autonomy invested in the broader image of new public sector management. It has to be considered whether the changes proposed were more apparent than real. The overall direction of prisons policy would still be set by the Minister and the government and the budget would be determined by the chancellor and the government and the basic mandatory framework for prisons determined by the Minister. Governor autonomy could be exercised on some matters, but it would seem that ‘wiggle room’ was quite small, but blame potential large. The government in other words would continue to steer the flotilla, whilst delegating some degree of freedom of action to individual ships to row and even to steer a course as long as it remained part of the flotilla as a whole. Most of the proposals contained in the White Paper, including those concerning the statutory purpose of prisons, the new role for the Secretary of State, the changes to the role and powers of HMIP, changes to the status and powers of the PPO and an urgent notification process (Para 5(c) (3)), were contained in the Prison and Courts Bill which was introduced into the Commons in February 2017. But: ‘The best laid schemes o’ Mice an’ Men/ Gang aft agley’ (Robbie Burns 1785). The Prison and Courts Bill was lost when the dissolution of parliament was announced in May 2017. Although a Conservative government still led by Theresa May was returned to power, albeit with a much reduced majority, and although the general election manifesto contained the clear commitment to continue with the increased scrutiny reforms (Conservative Party General Election Manifesto May 2017:45), the Queens Speech in June 2017, the usual method for a new government to announce its legislative programme for the coming term of office, contained no prison reform legislation. This was widely criticised as ‘a missed opportunity’, not the least by the then Chief Inspector of Prisons, Peter Clarke. Clarke stated that: ‘The law would have obliged the government to respond to our findings. We will continue to report the harsh reality of what we find in our prisonsall too many of which are dangerous for prisoners and staff alike and are failing in their duty to reform and rehabilitate prisoners’ (Peter Clarke quoted by Beard (05/12/2017:22).

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Instead, the new Minister of Justice, in June 2017, in an open letter stated that there was an intention to work on maintaining calm and order in ‘turbulent’ prisons and this would require merely building on work already under way, mentioning increased prison officer numbers, improved security, the transformation of the prison estate and improved reform and rehabilitation, but not increased scrutiny (Minister quoted by Beard 05/12/2017:23). In October 2017 the same Minister, in a response to the House of Commons Justice Select Committee Report (23/10/2017) indicated that the government was developing an update to the White Paper which would be published ‘soon’ and would deal with governor empowerment and matters relating to the prison estate, but not increased scrutiny. (Beard 05/12/2017:24).

Probably as a result of sustained pressure from the Chief Inspector of Prisons (Webster website 24/01/2018), in November 2017, the MOJ published details of a new ‘urgent notification protocol’ which is considered to be part of a package addressing improved safety in prisons and which would not require primary legislation. A press release on the matter (MOJ 30/11/2017g) suggested that the new process would be that the Minister of Justice would be alerted by the Chief Inspector of Prisons ‘If an urgent issue needs addressing to ensure that recommendations are acted upon immediately’. Seven factors (separately or together) are seen to necessitate the issuing of an urgent notification, covering HMIP assessments on the healthy test assessments, the nature of the prison population or the type of prison and overall the inspectorate’s confidence in the prison’s capacity for change. This would be followed by the Minister publishing a response and an action plan within 28 days of the notification. This would then be followed by a longer term plan for sustaining improvement (MOJ November 2017h). The Chief inspector’s letter and the Minister’s response would be published. The above-noted press release quotes Peter Clarke as welcoming both the move to accountability that the new protocol represented and the possibility that the urgent notification protocol would play a key role in the work of the inspectorate. However, the urgent notification protocol has a number of problems. Firstly, the emphasis on statutorily defined purposes for imprisonment has been abandoned and with it any democratic debate about what

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prisons are for. Secondly, the abandonment of the statutory purpose of prisons means that it will remain difficult or impossible to pin the Minister of Justice down on specific prison matters. Thirdly, without the statutory purposes it remains difficult for prisoners to argue a case about their poor treatment. Fourthly, the urgent notification protocol, to use C Wright Mills (2000) phrase in a different context, turns broader prison system issues (about deprivation and discrimination) into individual prison and/ or prisoner troubles. Finally, the urgent notification process sets an agenda of issue-rectification which rules out many important, broader matters including questions about prison finance and policy, especially the issue of the continuing use of short prison sentences. The PRT hints at this last issue in its response to urgent notification for HMP Bedford, namely, that dealing with individual establishments as opposed to categories of prisons, traps responses in a cycle of bailing the boat when urgent action is needed to fix the structure in particular to stop the use of short prions sentences and place a statutory ban on overcrowding. It makes this emphasis explicit in its response to events at HMP Exeter in 2018: Exeter prison is a grossly overcrowded prison where most prisoners are either not convicted at all or are serving short sentences. So David Gauke’s response to this urgent notification from the Chief Inspector should start by saying how he will give effect to the new policy direction he set out last weekend. He rightly wants to replace short prison sentences with community penalties that his own research shows to be more effective at cutting crime. Turning that wish into reality is the most important thing he can do to stop the rot in Exeter and many other prisons like it. (PRT 31/05/2018)

So what has happened between 2017 and March 2020? The urgent notification protocol has been invoked six times, with the situation of HMP Liverpool just missing the introduction of the protocol. The six prisons involved were, in date order, HMP Nottingham (17 January 2018), HMP Exeter (30 May 2018), HMP Birmingham (16 August 2018), HMP Bedford (12 September 2018), HMP Bristol (11 June 2019) and HMYOI Feltham A (22 July 2019). The fears expressed above seem to be borne out by what has happened. The only prison that seems to have a reasonably complete case history, at this juncture, is HMP Nottingham. This is summarised in Table 4.9 (in this chapter).

September 2014; announced inspection; HMIP 10/02/2015a; Prison population/ CNA: 1042/723 (144%).

February 2010; announced inspection; HMIP 28/10/ 2010; Prison population/ CNA=548/379 (145%). February 2013; unannounced inspection; HMIP 23/07/ 2013a; Prison population/ CNA: 1010/723 (141%).

Reasonably good

Respect

Poor

Reasonably good

Rehabilitation and release planning

Poor

Making sufficient Making insufficient progress with 2010 progress with recommendations 2010 recommendations

Reasonably good

Purposeful activity

Not sufficiently good Poor

Making sufficient Making sufficient progress with 2010 progress with 2010 recommendations recommendations

Reasonably good

Inspection date; nature of visit; report publication date; and recorded prison population/ CNA (% overcrowding) Safety

Table 4.9  HMP Nottingham: a decade of turbulence, 2010–2020

Focus shifted from community to local prison, prison population doubled in size (HMIP 23/07/2013a:5). Placed in ‘special measures’ in 2015.

An overcrowded ‘community prison’ (HMIP 23/07/ 2013a:5).

Comments/ special measures/UN

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Not sufficiently good Not sufficiently good

Not sufficiently good Not sufficiently good

Poor

Poor

Not sufficiently good

Not sufficiently good

Subject of UN January 2018.

Continued in ‘special measures’.

(continued)

Minister’s response New procedure IRP piloted at HMP Nottingham. Intended to review progress made against (no date, circa recommendations where there had been serious concerns. 2017) Found the prison ‘disappointing and … the response to many of the recommendations had been too Independent slow’. The Minister’s action plan was timely but ‘we found that little was done before July, 2018’ (HMIP review of 07/0/2020:7). progress (IRP) ‘The concept of urgency seemed to not to have been grasped by either the prison or HMPPS’ as a result November 2018; ‘by the time of the IRP, various initiatives had yet to result in any discernible improvements in outcomes (HMIP IRP for prisoners’ (HMIP 07/04/2020b:7). November 2018).

February 2016; announced inspection; HMIP 17/05/2016b; Prison population/ CNA: 1048/718 (146%). December 2017 and January 2018; announced inspection; HMIP 16/05/2018c; Prison population/CNA: 964/718 (134%).

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Not sufficiently good

Reasonably good

Respect Not sufficiently good

Purposeful activity

Reasonably good

Rehabilitation and release planning

‘At long last some real change’ (HMIP 07/04/2020b:7), but blunted by continuing issues with safety (assaults, self-harm incidents).

Comments/ special measures/ UN

Sources: Adapted from HMIP Inspection Reports for HMP Nottingham (28/10/2010, 23/07/2013a, 10/02/2015a, 17/05/2016b, 16/05/2018c and 07/04/2020b)

January 2020; unannounced inspection; prison population/ CNA: 798/718 (111%) (HMIP 07/04/2020b).

Inspection date; nature of visit; report publication date; and recorded prison population/ CNA (% overcrowding) Safety

Table 4.9 (continued)

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This table shows that when the urgent notification was issued in January 2018, after an announced inspection, this was the third time in a row that HMIP had found the prison to be ‘fundamentally unsafe’ and by then the prison had been in ‘special measures for some time’. The report documents a dramatic decline since 2014, with the prison population doubling between 2010 and 2013, and from 2014 repeated ‘poor’ scores for safety as well as performance which was lacking in the other areas being recorded. The urgent notification was followed by the Minister’s Action plan (HMPPS no date, circa 2017) and a HMIP independent review of progress (IRP)–carried out in November 2018. This was not a full inspection but intended to review progress made against recommendations where there have been serious concerns following full inspections. The IRP of HMP Nottingham expressed disappointment that ‘we found that the response to many of the recommendations had been too slow’. Although the Secretary of State’s action plan had been timely, the IRP ‘found that little was done before July 2018’ (HMIP HMP Nottingham 07/04/2020b:7). The IRP report concluded that: ‘The concept of urgency seemed to not to have been grasped by either the prison or HMPPS’ and that by the time of the IRP, ‘various initiatives had yet to result in any discernible improvements in outcomes for prisoners’. (HMIP 07/04/2020b: 7)

The 2020 inspection found some improvement in three of the four outcomes, but suggested that ‘it would have been quite possible for our judgement to have remained at poor’ (HMIP 07/04/2020b:8), ‘Safety,’ the key issue, had improved in that it had moved from ‘poor’ to ‘not sufficiently good’ and this was based on improved security and drug problems being addressed, but levels of violence and self-harm were still too high and there had been a failure to respond by the prison to a PPO report on a death in custody. Some changes had been made with regard to ‘respect’ and a marked improvement was observed for ‘purposeful activity’ and ‘rehabilitation and release planning’. But to put this another way, a prison that had been in special measures for three years before becoming the subject of a urgent notification in

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January 2018, by 2020, some two years further on, had still not obtained a single ‘good’ outcome in any of the inspection areas and still remained ‘not sufficiently good’ or ‘poor’ for safety (the main concern of the inspectors in 2018), and purposeful activity, the very outcome seen as a solution to the reduction of reoffending problem by successive governments 2015–2020. It is fair to conclude that the compromise policy, at least for HMP Nottingham, had limited and slow impact. This is not to lay the blame for the state of affairs on the staff at the prison, but it is to assert that urgent notification process is flawed precisely because it encourages further bailing of the leaking boat, when what was needed was the boat to be fixed, that is, fundamental changes being made to local prisons, their funding and staffing, as well as a shift in sentencing and remand policies by the government and sentencing and remand decisions by the courts leading to a significant reduction in the prison population overall and in this prison in particular. As for the subsequent career of the measures to introduce prison purposes and a strengthened accountability structure, other than the urgent notification, no further action was taken by Lidington’s successor in the Ministry of Justice, in the second May administration, nor by the Johnson administrations to March 2020. The second part of this story is taken up in Chap. 7. Once again there seems much sound and thunder, and some apparent substance, but it is not clear what the proposed changes will mean given that the reports of the scrutiny bodies would continue to go to the department that they refer to and not parliament, there is still only the urgent notification protocol available to ensure a response to report recommendations which can only be deployed in extreme cases and no standards concerning prisons are built into law as proposed by the 2016 White Paper (see Criminal Justice Alliance October 2020). The new public sector management attempt to improve the accountability of prisons largely came to nothing, leaving only a residue, the flawed UN. Table 4.10 summarises the points made throughout this chapter in relation to the internal critique. The gist is that the attempted ‘transformation’ of the prison system did not happen. The changes included in the prison estate programme had largely not been achieved by the end of the

1.2 Provide new prison places

(continued)

Active, to modernise Penal philosophy: Consistent, The policy 2015–2019 A part of the prison system by to modernise and create contributed to prison modified austerity replacing 6 old greater stability and overcrowding, and few policy and with, initially, 15 security. positive effects on the supported new/extended/ Implementation: Only 50% quality of prison life for outsourcing all new re-purposed prisons. of intended old prisons the majority of prisons. Added to closed. prisoners, thus rather than New for old policy detracting from detracted from abandoned July 2019. procedural justice. harsher prison Impact: Limited. conditions. Active, to provide Penal philosophy: Consistent Few net extra places Did not limit existing 10,000 new prison with Tory penal philosophy, actually provided, thus austerity but did places by July 2020. to extend prison capacity the policy did not make a significant Later revised to 10,000 and provide for alleviate poor material movement back to new prison places in incapacitation. conditions and did not whole prison addition to some of Implementation: Net impact improve quality of privatisation, whilst those provided by to July 2019, 9% of target. treatment received by encouraging the the May Impact: Very limited. prisoners. The overall outsourcing of administration. Later new prison place prison services and still revised to 18,000 targets expressed and contributing to new prison places in affirmed the existing harsher prison addition to those fixation with the prison. conditions. provided by the May administration.

1. The transformation of the prison estate 1.1 New prisons for old policy

Implications for the emergent penal policy package

Policy nature and aims

External critique: impact on the material and moral aspects of the penal crisis

Aspects of transformation

Internal critique: relation to penal philosophy, extent of implementation and impact by March 2020

Table 4.10  Summary of internal and external critique of Conservative governments’ prison policies 2015–2020

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Aspects of transformation

2. Transformation of the organisation and operation of prisons 2.1 Outsource prisons and prison services

Aspects of transformation

Implications for the emergent penal policy package

Developed austerity by contract, reduced public sector involvement and increased private sector contributions and generally underlined the need for doing more with less, leading to the harsher treatment of prisoners.

External critique: impact on the material Implications for the and moral aspects of emergent penal the penal crisis policy package

Active. Penal philosophy: Consistent, Contributed to material Throughout the in the pursuit of value for resource scarcity by whole period— money and the assumption contract, did little to continued with that the private sector is improve the quality of closing public sector best. Implementation: July prison decision-making prisons and 2019: one public sector and the quality of contracting out all prison closed (HMP treatment of prisoners. new prisons. Holloway) and one private Continued sector prison returned to outsourcing of the public sector in 2019. prison services. Prison services outsourcing continued to March 2020. Impact: increased presence for private prisons and services. Policy nature and Internal critique: relation to External critique: impact aims penal philosophy, extent of on the material and implementation and impact moral aspects of the by March 2020 penal crisis

Internal critique: relation to penal philosophy, extent of implementation and impact Policy nature and aims by March 2020

Table 4.10 (continued)

168  C. D. Skinns

2.2 Increase prison Active. Penal philosophy: Consistent, De facto staffing officer numbers To July 2019: Increase in that shortages of staff shortages continued prison officer were seen to be affecting encouraging a general numbers by 2500 by the stability and security of atmosphere of doing late 2018/early prisons. more with less and 2019, extend this Implementation: July 2019: harshness, which recruitment in 2020. Prison officers increased by detracted from the some 3000. Impact: Limited quality of prison because the increase was decision-­making and affected by excessive churn, the quality of the most new officers were treatment of prisoners. inexperienced and the 2500 target was inadequate. Continuing staff shortages placed the KWS in jeopardy

(continued)

De facto staffing shortages a significant element of austerity and doing more with less led to little mitigation of in-practice punitiveness.

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169

2.3 Introduce the key worker scheme (KWS)

Aspects of transformation

External critique: impact on the material Implications for the and moral aspects of emergent penal the penal crisis policy package

Active. Introduce a Penal philosophy: Consistent The scheme was A lack of ring-fencing more general focus with notion of ‘second undermined by of KWS duties and on reform and chance’ and had the continuing staff continuing staff resettlement and a potential to create greater shortages. The patchy shortages meant facility for prisoners safety and stability in system that developed that the immediacy to have weekly prisons, reduce reoffending detracted from the of wing duties contact with and contribute to public quality of treatment of displaced the key designated, trained safety. prisoners and expressed worker functions prison officers. Implementation and impact: the continued presence indicating the To March 2020 limited, of doing more with less. continuing impact distribution patchy, due to of austerity. The continuing staff shortages. net result was experienced by prisoners as harsh and punitive.

Internal critique: relation to penal philosophy, extent of implementation and impact Policy nature and aims by March 2020

Table 4.10 (continued)

170  C. D. Skinns

Aspects of transformation

2.4 Provide some prisoners with a second chance

Policy nature and aims

Active. Redemption through learning, shifting later to reform through work

(continued)

Penal philosophy: Consistent The failure to implement Continuing material with notions of a ‘second Coates and poor resource scarcity chance’. Implementation/ purposeful activity directly linked to de impact: Significant provision directly facto austerity and elements of the Coates connected to continuing poor educational recommendations not material resource and other related implemented, making any scarcity. provision kind of reform through Detracted from the experienced by education unlikely. quality of prison prisoners as Reform through work limited decision-making and punitive and harsh. by poor purposeful activity the quality of the provision. treatment of prisoners, including failing to fulfil resettlement needs. Internal critique: relation to External critique impact Implications for the penal philosophy, extent of on the penal crisis emergent penal implementation and impact policy package by March 2020

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2.5 Make changes to prison security— reduce the possession and use of mobile phones in prisons

Aspects of transformation

Active. Limit the demand for and supply of mobile phones

Limited by austerity, technical issues and political turbulence. Clearly expressed punitive, ‘less deserving’ sentiments about prisoners.

External critique: impact on the material Implications for the and moral aspects of emergent penal the penal crisis policy package

Penal philosophy: Consistent, Slow roll-out of blocking especially as actual methods in partly due development emphasised to material resource control rather than scarcity. Lack of reducing demand through attention to prisoners’ catering for prisoners’ legitimate legitimate communication communication needs a needs. genuine detraction Implementation: Demand: from the quality of In-cell telephony provided treatment afforded to for about 50% of prisons by prisoners. March 2020 Supply: Limited development of technological methods by March 2020. Impact: Limited.

Internal critique: relation to penal philosophy, extent of implementation and impact Policy nature and aims by March 2020

Table 4.10 (continued)

172  C. D. Skinns

Penal philosophy: Consistent Had the potential to with ‘new public sector contribute to management’ approach, accountability and thus based on prison governor legitimacy, but not autonomy and holding the pursued at least to public sector to account by March 2020. league tables defined by the purposes. Implementation: Abandoned entirely in 2017 3.2 Introduce a Active. Make Minister Penal philosophy: Consistent. Had the potential to new mechanism accountable to Implementation/impact: contribute to for Ministerial parliament for the Abandoned entirely in 2017 accountability and thus accountability achievement of the legitimacy, but not to parliament four purposes across pursued at least to the prison system March 2020.

3. The transformation Active. Effect a of prison statutory definition accountability of prison purposes. 3.1 Define the purposes of prisons

(continued)

Contributed to harsh prison environment by limiting mechanisms of redress.

Contributed to harsh prison environment by limiting mechanisms of redress.

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173

3.4 Create an effective, rapid response mechanism to prison problems

3.3 Sharpen the scrutiny arrangements of prisons

Aspects of transformation

The UN, a pragmatic attempt to be seen to offer some kind of remedy for failing prisons largely a product of a system struggling with doing more with less and willing to treat offenders as less deserving.

Limited prisoner redress and thus contributed to harsher conditions.

External critique: impact on the material Implications for the and moral aspects of emergent penal the penal crisis policy package

Penal philosophy: Had the potential to Consistent. contribute to Implementation/impact: accountability and thus Abandoned in 2017 (part legitimacy, but revived in August 2020). although revived, Impact: not known as still in nothing put in place by the discussion stage. March 2020. Active. After the Penal philosophy: Simply a UN seems to have had abandonment of matter of political limited impact in terms the broader expediency, a pragmatic of enabling the programme, the UN response to a clear policy remediation of was introduced. failure. problems in specific Implementation: UN prisons, for example, introduced in late 2017 and HMP Nottingham used in practice from January 2018. Impact: Has had limited impact.

Active. Place HMIP and PPO on a statutory basis. Make limited changes to other monitoring bodies.

Internal critique: relation to penal philosophy, extent of implementation and impact Policy nature and aims by March 2020

Table 4.10 (continued)

174  C. D. Skinns

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175

second May government in the summer of 2019, and although many new promises were made by the Johnson governments in 2019–2020, understandably little had come to fruition by March 2020. The transformation of the operation and organisation of the prison system had more mixed results. Some limited, temporary success had been achieved with increasing prison officer numbers, albeit not without issues. However, the vital key worker scheme was limited by continuing staffing inadequacies, the drive to improve education and then work in prisons was not effective and the efforts to improve prison security, insofar as they were successful at anything, stressed often counterproductive control of supply, and not methods of reducing demand for illegal mobile phones. The harshness of prisons was not reduced largely due to continuing austerity. The ideological fervour associated with making prisons more accountable through ‘new public sector management’ arrangements was dissipated, leaving only the far from unproblematic urgent notification in its wake, at least, as we shall see, until August 2020 (see Chap. 7). The net result was that the attempt to introduce greater stability and security into prisons, as a necessary part of the move towards enabling prisoners a ‘second chance’ was not accomplished. Indeed, conditions in jails in England and Wales deteriorated in the 2015–2020 period.

 onservative Government Prisons Policy C 2015–2020: An External Critique In this final part of the chapter, I consider how the prison policies of the Conservative administrations between 2015 and 2020 have affected both the material and moral aspects of the penal crisis. The conclusion reached is that there can be little doubt that policies here contributed to the further development of a penal policy package based on austerity, outsourcing and punishment and thus exacerbated the crisis. A summary of the points made is provided in Table 4.10. The efforts of the successive government of the 2015–20 period have failed properly to address the material crisis—funding, though increased, remains inadequate, because targeted on failing vanity projects or

176 

C. D. Skinns

ineffective transformations, staffing levels remain too low and the material infrastructure has deteriorated further, detrimentally affecting the living conditions of prisoners. Furthermore, prisons are not seen as any more procedurally just now, than in 2015 by the public, staff and prisoners. Imprisonment still remains a tragic obsession, attempts to render prisons more visible if not accountable have been abandoned until very recently, and the crisis of penal policy-making is as evident as ever.

Material Crisis: 2015–2020 Successive Conservative governments in the 2015–2020 period have presided over a deepening of the material crisis in prisons based on austerity types 1 and 2. In the 2015–2020 period, the workload of prisons diminished only very slightly, with a 23% decrease in the number of people sentenced to immediate custody by the courts, but only a 3% reduction in the actual prison population (see Tables 2 and 4, Chap. 3) and ever more confident predictions from government that the prison population was set to rise. The period of swingeing budget cuts, between 2010 and 2015, which saw a 24% reduction in the NOMS/HMPPS budget, did come to a welcome end in the 2015–2020 period. Expenditure rose by 47% between 2014/15 and 2019/20. However, the new expenditure was targeted on transforming or modernising the prison estate and the operation and organisation of prisons but produced only very limited results. The general atmosphere thus remained one of scrutiny, economy, insecurity and ‘delivering more with less’ reflected in the poor HMIP inspections assessments of particularly ’purposeful activity’ and ‘rehabilitation and release planning’ (see Table 4.11 in this chapter). The attempt to make material improvements to the prison estate in the 2015–2020 period had only a very limited impact. Only a small number of prisons were closed and some new facilities provided. The net impact on the material infrastructure and indeed prisoner experience of living conditions was very small, meaning that conditions still deteriorated and cell-sharing affected more prisoners (see Tables 4.3, 4.11 and 4.12).

43 55 25

45

44

85 74 64

66

53

34

56

59 73 44

37

54

38 49 51

39

44

36 59 44

35

63

37 60 35

37

46

51 78 36

2010–2011 2014–2015 2015–2016 2016–2017 2017–2018 2018–2019 2019–2020

14

59

35 59 29

14

35

29 53 29

a

Pre-pandemic sample: aggregate scores of the 14 prisons inspected in the ‘recovery’ period during their last previous inspection, 2017–2019. b ‘Recovery’ sample: aggregate scores of the 14 HMIP prison inspections carried out in May–September 2021. Sources: Adapted from HMIP Annual Reports 2010/11 to 2020/21 (14/09/2011, 14/07/2015b, 19/07/2016c, 18/07/2017a, 11/07/2018h, 09/07/2019b, 20/10/2020c and 20/07/2021a) and prison inspection reports May–September 2021 (HMIP 26/08/2021b; 01/09/2021d; 03/09/2021e; 09/09/2021g; 06/10/2021h; 11/10/2021i, 12/10/2021j; 02/11/2021l, 12/11/2021m, 30/11/2021n, 07/12/2021o, 14/12/2021p and 21/12/2021q) and previous inspection reports (16/08/2017b; 07/11/2017c; 20/02/2018a; 27/03/2018b; 12/06/2018e; 19/06/2018f; 10/07/2018g; 07/08/2018i; 11/09/2018j; 12/10/2018k; 20/11/2018l; 10/01/2019a and 11/02/2020a)

Safety Respect Purposeful activity Rehabilitation and release planning No of prisons inspected

Inspection area

Pre-­ pandemic sample based on the recovery Recovery sample sample 2017–2019a 2021b

Table 4.11  The percentage of prisons for men inspected by HMIP receiving ‘good’ and reasonably good’ assessments for the four tests of healthy prisons, comparing scores for all prisons inspected 2010/11 to 2019/20 with the scores awarded to ‘pre-­pandemic’ (2017–2019) and ‘recovery’ (May–September 2021) samples

4 Prisons 

177

100 100 71

100

7

66 66 100

100

3

2

100

100 100 50

5

100

100 100 80

2

100

50 100 50

3

100

100 100 66

5

80

100 100 100

3

100

100 100 33

3

100

100 67 33

Recovery sample 2021b

a

Pre-pandemic sample: aggregate scores of the three prisons inspected in the ‘recovery’ period during their last previous inspection, 2017–2019. b ‘Recovery’ sample: aggregate scores of the three HMIP prison inspections carried out in May–September 2021. Sources: Adapted from HMIP Annual Reports 2010–2011 to 2019–2020 (14/09/2011, 14/07/2015b, 19/07/2016c, 18/07/2017a, 11/07/2018h, 09/07/2019b, 20/10/2020c and 20/07/2021a) and prison inspection reports May–August 2021 (HMIP 26/08/2021b; 07/09/2021f and 27/10/2021k) and previous inspection reports (HMIP 13/12/2017d; 06/06/2018d and 21/11/2018m).

Safety Respect Purposeful activity Rehabilitation and release planning No of prisons inspected

Pre-­ pandemic sample based on the recovery sample Inspection area 2010–2011 2014–2015 2015–2016 2016–2017 2017–2018 2018–2019 2019–2020 2017–2019a

Table 4.12  The percentage of prisons for women inspected by HMIP receiving ‘good’ and reasonably good’ assessments for the four tests of healthy prisons, comparing scores for all prisons inspected 2010/11 to 2019/20 with the scores awarded to those prisons inspected in the pre-pandemic (2017–2019) and recovery (May to September 2021) samples

178  C. D. Skinns

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179

The drive to increase prison staff numbers, as we have seen above, did improve the situation. Table 4.3 shows that between December 2014 and December 2019, front-line prison staff numbers increased by some 14% and, within this, an increase of Bands 3–5 front-line officers of 20%. However, this was not without difficulties not the least the attrition rates amongst new and existing staff, the accumulation of high proportions of inexperienced staff on the landings and the general inadequacy of the target set, the net result making it very difficult to properly implement the key worker scheme effectively. The outsourcing of prisons has been given a new impetus, connected to the plans of government for new prisons from 2019 and has been combined with pressures to outsource prison services. Developments in prisons have contributed to an on-going policy of austerity and outsourcing and to harsher prisoner living conditions and staff working conditions.

Moral Crisis: 2015–2020 The analysis here follows the examination of the aspects of penal crisis set out in Chap. 2 and assesses the extent to which the prison system is seen to be procedurally just by three key audiences (the public, prison staff and prisoners), as well as considering whether policy has diminished the fetishisation of the prison, enabled greater accountability, improved the process of penal policy-making and generally contributed to justice. Public: Using measures of procedural justice based on the CSEW, public confidence in prisons either to punish (30%) or rehabilitate (22%) offenders was remarkably low in 2009/10, and although some increase in confidence is observable to 2014–2015, to 34%: 24%, respectively (see Table  8, Chap. 3), this seems to confer little procedural justice-based legitimacy on prisons by the later date. Changes to 2018 with regard to prisons suggest limited increases in public confidence with regard to the effectiveness of prisons to punish offenders and to rehabilitate offenders (rising to 36% and 24%, respectively, in 2017/18). However, this means that even in 2018, 64% and 76%, respectively, of the people surveyed do not have confidence in the effectiveness of prisons to either punish or rehabilitate offenders.

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C. D. Skinns

Staff: Table 9 in Chap. 3 suggests that evidence from the Civil Service People Survey 2020 indicates that HM Prison Service staff compared with their civil service colleagues in 2020 felt less involved in the decision-­ making affecting their work (QB04 49/64%: QB05 61/81 and QB11 70/86 and less fairly (QB26/27 68/84) or respectfully (QB47 77/89) treated). More than twice the proportion of HM Prison service staff in 2020 (17%) felt that they had experienced discrimination, compared with 8% of all civil servants. Comparing 2020 with 2015, for HM Prison service staff, a feeling of being involved in decision-making had increased (QB04 49/42%: QB05 61/53%: QB11 70/65%) as well as being treated fairly (QB25/26 68/64%) or respectfully (QB26/27 77/76%). Seventeen per cent of HM Prison Service staff in 2020 considered that they had experienced discrimination, compared with 18% in 2015. However, the limitations of the data need to be acknowledged here— non-response rates (about one-third of civil servants failed to participate), the meaningfulness of the questions in surveys of this kind and the fear of consequences of offering too negative a picture, all detract from the validity of the findings. The blandness of the Civil Service Survey results are able to be contrasted with the startling conclusions of the POA surveys of prison staff in 2014 (Kinman, Clements and Hart 13/11/2014) and 2020 (Kinman and Clements August 2020), with the latter study carried out just before the pandemic outbreak. Focusing on matters connected to procedural justice, that is, involvement in decision-making about them and being treated fairly, respectfully and being able to work in safe and decent conditions, these studies reveal by examining matters related to the demands placed on staff, the kind of control they can exercise over their work, the support they receive from management, their experience of change and their general level of safety at work, showing that conditions were poor in 2014 and had markedly deteriorated by 2020. Prisoners: Taking procedural justice as a basis for the assessment of legitimacy, despite its limitations, I will proceed here to examine the involvement of prisoners in decision-making and the decency of their treatment. In assessing prisoners’ normative commitment I will consider the following: firstly, HMIP inspections and their pronouncements on

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181

the decency of treatment; secondly, prisoner responses to the survey used by HMIP on all inspections taking into account how decently they are treated and whether they experience the process of imprisonment as in its details as just or fair. I will start with decency of treatment. HMIP inspections assess prisons by means of four criteria—safety, respect, purposeful activity and rehabilitation and release planning. All four of these criteria are pertinent for assessing decency of treatment, as any process that does not ensure the safety of its members, treat them with respect, make available means of engagement and possible rehabilitation and work on prisoners’ resettlement is not decent. A good window on this matter is to compare the inspection results over the relevant period. In this case, we are able to do this from 2005/6 to 2019/20, looking at the HMIP reports on the % of prisons inspected that are awarded good and reasonably good assessments for each of the four main inspections areas (namely, safety, respect, purposeful activity and rehabilitation and release planning). Tables 4.11 and 4.12 (in this chapter) show the results for male and female prisoners. There has been a notable deterioration in the performance of those male prisons inspected in the years of the Coalition 2010–15, with ‘safety’ (85% reduced to 43%), ‘respect’ (74 to 55%), purposeful activity (64 to 25%) and ‘rehabilitation and release planning ’ (66 to 45%). Between 2014/15 and 2019/20 a more complex pattern is evident, with ‘safety’ remaining low until 2019/20 (43% increasing to 51%), ‘respect’ (increasing from 55% to 78%), purposeful activity (increasing from 25% to 36%) and ‘rehabilitation and release planning’ (remaining static at 45-46%). Thus some improvement has been achieved, but this still means that, respectively, 49%, 22%, 64% and 54% of prisons in the four areas of assessment are shown to be poor or not sufficiently good in 2019/20. Such results not only have clear implications for the decency of treatment of prisoners, but also for the public because public safety is put at risk if the reform functions of prisons are not effective (particularly purposeful activity and rehabilitation and release planning) and for staff because they have to continue to work in such conditions. The position for female prisoners is less poor—but with rehabilitation and release planning revealing grounds for concern about decency of treatment in this period. The consequences for the safety of prisoners (and staff) of this

182 

C. D. Skinns

deterioration in treatment are shown in Table 4.5 and have been already noted above. A final window on prisoners’ perception of procedural justice in prisons is provided by a re-reading of the HMIP survey data for 2010/11, 2014/15 and 2019/20. Detailed surveys are filled in by prisoners whenever a prison inspection is undertaken, giving a snapshot for the year of prisoners’ views about their circumstances. I have extracted questions asked by HMIP which are pertinent to our concerns—that is, covering prisoner involvement in decision-making about them and the decency or otherwise of their treatment. Table  4.13 (in this chapter) reveals that questions which ask about prisoner involvement in prison decision-­ making are very limited, with direct questions (see Questions 3 and 4) only being asked in 2018/19 for the first time. Instead I have extracted questions which at least explored when prisoners obtained a prison response of some kind. The remaining questions focus on decency of treatment. I will start with Questions 1–8 concerned with prisoner involvement. Table 4.13 Question 1 looks at staff responses to the cell bell being activated by a prisoner—the data shows a clear deterioration with only 41% of prisoners overall suggesting that their use of the cell bell had received a response within five minutes in 2010/11, 30% by 2014/15 and 28% in 2019/20. The results here vary according to ethnicity and gender, with BAME prisoners and men perceiving less involvement. Prisoner impact can also be assessed by ease of access to stored property (Table 4.13 Question 2) although this question was not asked in 2010/11. The results for 2014/15 show that only about one-fifth (22%) of prisoners indicated that access was easy, this had increased to 30% in 2019/20. The results here vary according to ethnicity with BAME prisoners being underrepresented. Direct questions about prisoner involvement in prison decision-­ making (Questions 3 and 4 in Table 4.13) were only asked in 2018–2019, with the results here shown only for 2019/20. The responses suggest that only about 50% of prisoners considered that they had been consulted regarding wing issues, and of these just over one-third (37%) felt that the consultation had had any impact and led to change.

39

NA

NA

NA

n= 5642

41

NA

NA

NA

prisoner characteristics

Prisoner involvement and impact on prison decision-making process 1. The cell bell is usually answered within five minutes 2. It is easy to obtain my stored property 3.Prisoners are consulted concerning wing issues 4. Things changed as a result of the consultation

2014–2015 %

NA

NA

NA

42

NA

NA

22

30

NA

NA

20

29

NA

NA

23

30

BAME White All BAME White n=1320 n=4322 n= 8477 n=2040 n=5315

All

Questions and

2010–2011 %

NA

NA

NA

42

Women n= 978

NA

NA

NA

30

Men n=7499

37

53

30

28

n= 7002

All

36

48

29

24

n= 1796

BAME

2019–2020 %

38

54

31

28

n= 4359

White

41

60

34

38

Women n=694

37

52

30

27

Men n=6308

(continued)

NA

NA

NA

48

prisoners only

All n= 3599 adult male

2020–2021 %

Table 4.13  Prisoners’ views on whether they were being treated in a procedurally fair way 2010/11, 2014/15, 2019/20 and 2020/21

All n= 5642

NA

NA

BAME White n=2040 n=5315

2014–2015 %

NA

BAME White All n=1320 n=4322 n=8477

2010–2011 %

NA

77

NA

71

NA

76

83

83

5. It is easy to make an application 6. The reply received to the application was: Fair Timely Questions and prisoner characteristics

89

BAME White All BAME White n=1320 n=4322 n= 8477 n=2040 n=5315

All n= 5642

2014–2015 %

Questions and prisoner characteristics

2010–2011 %

Table 4.13 (continued)

Women n= 978

NA

87

Women n= 978

Men n=7499

NA

75

Men n=7499

45 31

68

BAME n= 1796

57 42

76

White n= 4359

All BAME White n= n= n= 7002 1796 4359

2019–2020 %

54 40

73

All n= 7002

2019–2020 %

Women n=694

64 48

76

Women n=694

Men n=6308

53 39

73

Men n=6308

All n= 3599 adult male prisoners only

2020–2021 %

NA

NA

All n= 3599 adult male prisoners only

%

2020–2021

make a complaint 8. The reply received to the complaint was: Fair Timely Decency of treatment First night: 9. I was well treated by reception staff First night: 10. I felt safe on the first night at the prison Treatment on the wing 11. The food provided on the wing is good/ very good

7. It is easy to

NA

53

70

19

62

78

24

78

NA

83

25

80

65

NA

84

22

76

68

NA

55

21

72

61

NA

52

22

77

70

NA

56

35

77

81

NA

61

22

75

67

NA

55

44

73

83

34 28

63

39

68

78

27 23

58

46

75

86

36 29

65

46

70

86

42 34

67

44

73

83

33 27

63

(continued)

60

NA

NA

NA

57

50 40

56 31

All n= 5642

58 29

13 30 48

20

71

2014–2015 %

36 50

22

76

38 50

18

78

BAME White All BAME White n=1320 n=4322 n= 8477 n=2040 n=5315

2010–2011 %

19

14

74

46

62

37

74

44

43

54

12. I feel fairly treated by the IEP scheme 13. Most of the staff in this prison treat me with respect 14. I feel unsafe now 15. It was easy to obtain: A prison job A place in education Questions and prisoner characteristics

58

BAME White All BAME White n=1320 n=4322 n= 8477 n=2040 n=5315

All n= 5642

2014–2015 %

Questions and prisoner characteristics

2010–2011 %

Table 4.13 (continued)

Women n= 978

63 36

13

83

54

Women n= 978

Men n=7499

50 24

19

76

44

Men n=7499

40 83

26

63

32

BAME n= 1796

53 77

21

75

45

White n= 4359

All BAME White n= n= n= 7002 1796 4359

2019–2020 %

50 79

21

72

42

All n= 7002

2019–2020 %

Women n=694

59 83

16

79

48

Women n=694

Men n=6308

49 79

22

71

41

Men n=6308

All n= 3599 adult male prisoners only

2020–2021 %

21 22

23

75

52

All n= 3599 adult male prisoners only

2020–2021 %

36

-

NA

NA

NA

NA

-

16

12

-

51

38

49

29

NA

13

-

14

42

27

NA

14

-

11

41

27

NA

13

-

15

42

27

NA

NA

-

23

42

35

NA

NA

-

14

41

27

53

57

6

13

45

33

51

50

6

10

42

29

53

59

7

15

46

34

63

70

9

16

47

32

52

56

6

13

45

33

NA

40 Out of cell less than one hour each day 9 Out of cell for six or more hours each day 39

-

21

Sources: Adapted from HMIP Annual Reports 2010–2011, 2014–2015, 2019–2020 and 2020/21 (14/09/2011, 14/07/2015b, 20/10/2020c and 20/07/2021a)

19.I am being NA helped with my release by prison staff 20. My experiences NA of this prison have made me less likely to offend in the future

18b. Unlock time is ten hours or more during the weekend

obtain access to a doctor 17. It was easy to 49 obtain access to a solicitor 18a. Unlock time is 15 ten hours or more during the week

16. It was easy to

188 

C. D. Skinns

Prisoners on the whole felt that it was easy to make an application in all three years, 2010/11 and, 2014/15 and 2019/20 (83%/76%/73%). Questions relating to the timeliness and fairness of the responses to applications (Table  4.13 Question 6) were only added in 2018–2019. The responses revealed a great deal of dissatisfaction, with only 54% suggesting that their applications were responded to in a fair manner and 40% considering the response was timely, in 2019/20. The ease of making a complaint evident in 2010–2011 (83%) seems to change for the worse in both 2014/15 and 2019/20 (55%/63%). Questions relating to the timeliness and fairness of the responses to complaints (Table  4.13 Question 8) were only added in 2018–2019. The responses revealed a great deal of dissatisfaction, with only 34% suggesting that their complaints were responded to in a fair manner and 28% in a fair manner in 2019/20. Again BAME and male prisoners seemed to be less well treated. Turning now to decency of treatment, on the first night in prison (Table 4.13 Questions 9 and 10) over the whole of the period, two-thirds of prisoners indicated that they had been well treated rising to four-fifths 2019/20 (62%: 68% and 83%, respectively). About three-quarters of prisoners felt safe on the first night (78%:76%:73%) 2009/10 to 2019/20. BAME groups considered that they were less well treated on the first night. The picture that emerges in the 2010/11 to 2019/20 period in the normal prison population of the decency of treatment was rather mixed. On the one hand, some improvements are evident. Thus, the quality of the food (Table 4.13 Question 11) provided was seen as good by 24% of prisoners 2010/11 and 22% in 2014/15, with a marked improvement being signalled in 2019/20 with 44% of prisoners seeing the food provided as good/very good. BAME and male prisoners felt that they had been less decently treated. Although this shows genuine improvement, it is still the case that 56% of prisoners did not consider the food good or very good in 2019/20. The results for the remaining questions pertinent to decent treatment (Table 4.13 Questions 12, 13, 14, 15, 16, 17, 18, 19 and 20) suggest a mixed pattern over the 2010/11, 2014/15 and 2019/20 period.

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Clear deterioration in decency of treatment is evident between 2010/11, 2014/15 and 2019/20, with regard to the fairness of the Incentives and Earned Privileges (IEP) scheme (54%: 44%:42%) (Question 12) and feeling unsafe now (14%:22%:21%) (Question 14), with significant variations evident in the replies from BAME members and men. Some improvement is evident regarding the accessibility of prison jobs (56%:36%:50%) particularly in the later period and education (31%:50%:79%) (Question 15). In 2019/20, some 57% of prisoners considered that they had been helped with their resettlement (Question 19). All the other questions obtained responses which revealed relative stasis, a very concerning situation given the importance of these measures regarding decency of treatment including staff treating prisoners with respect (74%:76%:72%) (Question 13), ease of access to a doctor (36%: 27%: 33%) and solicitor (49%: 42%: 45%) (Question 17), and unlock times in weekdays (15%: 14%; 13%) (Question 18a) and weekends (6% 2019/20 only) (Question 18b). Decency of treatment seems to be structured by ethnic background, with white prisoners and women prisoners reporting generally more decent treatment. Finally, of particular note, part of decent treatment is to help provide opportunity for rehabilitation—Question 20 tested this, but only in 2018/19 and 2019/20. The result for 2019/20 is stark—with only about a half of prisoners indicating that their experiences in the prison had made them less likely to offend in the future. In sum, public, staff and prisoners’ views in the 2014/15 to 2019/20 period suggest that prisons have not achieved greater legitimacy. By their very material existence and by their very functioning, prisons implicitly, but effectively, support the fixation on custody as a solution to crime and reinforce this position by directly sustaining the crisis of imprisonment in that they make very considerable and varied use of incarceration as a sanction. Prisoners can be held on ‘remand’ in a care and separation unit awaiting adjudication if they are considered to have engaged in a disciplinary offence. Adjudication panels, run by district judges, can add up to 42 days of imprisonment to an existing sentence

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as a punishment for disciplinary infractions and/or order the prisoner to be subject to cellular confinement, meaning that she/he is removed from the normal population and placed in the prison care and separation (‘seg’) unit for a specified period. Governor adjudications can also impose cellular confinement on prisoners for disciplinary infractions, but not additional days. No matter how understanding and welfare orientated such panels may try to be, there is a tendency to reproduce the tragic sentencing decisions of courts on the outside, that is to repeatedly impose punitive sanctions on offenders whose behaviour, though troubling, difficult and highly disruptive, is not necessarily wilful, but conditioned by personality disorders, previous or current drug use and/or mental health issues. The Howard League for Penal Reform (2017) estimated that the number of additional days added by district judges in both public and private sector prisons was 359,081 days in 2017 or some 984 years, falling to 337,395 days in 2019 and 178,889 days in 2020 (see Table 4.14 in this chapter). Adjudications can and do impose cellular confinement, another form of imprisonment within imprisonment (see Table 4.14). The move to render prisons more accountable, as discussed above, ran onto the rocks of the political instability caused by Brexit, although a weakened, pragmatic form of urgent notification was introduced and has operated since 2018. Prison policy-­making remains a largely closed book. Finally, the combination and actions and inactions have significantly detracted from the quality of justice dispensed by prisons. Overall then the prison crisis in terms of resources and legitimacy has not been assuaged, but exacerbated. In summary, it is also only too clear that the dominant theme of policy in prisons in the 2015–2020 period has been punishment. The status quo on the accountability of prisons has hardly been disturbed by the urgent notification protocol and prison policy-making has remained arbitrary. Prison policy-making has not paved the way to a more just prison system.

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Table 4.14  Prison adjudications in England and Wales, in the 12 months ending 31 March 2011, 2015, 2016, 2019 and 2020

Year

Total

Proven

2011a (July 2019:3)

163,942

119,678

2015a (MOJ 27/04/2017b:6)

148,023

102,531

2016 171,518 (27/04/2017b:6)

111,332

2019b (MOJ 30/04/2020c Section 4)

210,326 133,838 % % Change Change 2016 to 2016 to 2019: 23 2019: 20

2020c (MOJ 29/04/2021a)

159,696 % Change 2019 to 2020: −24

103,273 % Change 2019 to 2020: −23

Awards of additional days (total additional days Cellular awarded) confinement 8960 (147,869 days) 13,000 (221,000 days) 16,756 (284,252 days) 19,685 (337,395 days) % Change 2016 to 2019: 17 6113 (178,889 days) % Change 2019 to 2020: −69

Average No of punishments per offence

32,973

2.10

25,360

1.78

25,191

1.72

26,496 % Change 2016 to 2019: 5

1.65

27,922 % Change 2019 to 2020: 5

1.64

The counting rules changed twice in the period, in 2010 and 2015, making comparison difficult. b Included as the last year before the pandemic began in March 2020. c Statistics for 2020 include nine months of the pandemic lockdown period which had a marked impact on prison operation including adjudications. Sources: Adapted from MOJ Offender Management Statistics Adjudications 27/04/2017b, 30/04/2020c and 29/04/2021a and MOJ July 2019f a

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Conclusion This chapter has assessed prison policy in the 2015–2020 period in two ways. Firstly, the internal assessment considered whether the policy was successful in its own terms, that is, largely consistent with Conservative penal philosophy, fully implemented and had the desired impact. The answer that successive Conservative governments did attempt to re-create the prison world in their image, but that most of the policies they promulgated suffered from various implementation failures and the desired impacts were thereby limited. Secondly, the external assessment found that prison policy was effective enough to exacerbate the material and moral penal crisis. The impact of government action here has been to further promote the penal policy package first articulated by the Coalition government, based on austerity, outsourcing and punishment and, by so doing, exacerbate the penal crisis and detract from justice. In Chap. 5 I go on to critically examine Conservative government policy on probation 2015–2020.

References BBC News (20/12/2007) ‘Can you sit on the BOSS chair?’ BBC News (26/05/2016) ‘HMP Kennet: Government to close overcrowded prison.’ BBC News (14/11/2017) ‘New technology to be used to block mobile phones in Scottish jails.’ BBC News (21/04/2019a) ‘Technology to be used to trace prison mobiles to exact cells.’ BBC News (15/10/2019b) ‘Wellingborough prison: public invited to pick new jail’s name.’ BBC News (02/09/2020) ‘Glen Parva prison: cost climbs by £116m.’ BBC News (23/01/2021) ‘Up to 500 new cells to be built in women’s prisons.’ Beard, J (05/12/2017). Prison Reform: Recent Developments House of Commons Briefing Paper CBP08019 @ https://researchbriefings.files.parliament.uk/documents/CBP-­8019/CBP-­8019.pdf

4 Prisons 

193

Burns, R ‘To a mouse’ @ https://poemanalysis.com/robert-­burns/to-­a-­ mouse/#:~:text=%E2%80%98%20To%20a%20Mouse%E2%80%99%20 by%20Robert%20Burns%20describes,understands%20why%20this%20 is%20the%20case%20and%20sympathizes Conservative Party General Election Manifesto (April 2015) A Clear Economic Plan @ http://ucrel.lancs.ac.uk/wmatrix/ukmanifestos2015/ localpdf/Conservatives.pdf Conservative Party General Election Manifesto (May 2017) Forward Together @ https://general-­election-­2010.co.uk/2017-­general-­election-­manifestos/ conservative-­manifesto-­2017.pdf Council of Europe (2006) Prison Rules @ https://search.coe.int/cm/Pages/ result_details.aspx?ObjectId=09000016806f3d4f Criminal Justice Alliance (October 2020) Strengthening Independent Scrutiny Bodies Through Legislation @ https://www.criminaljusticealliance.org/wp-­ content/uploads/CJA-­Resource-­8 -­Strengthening-­A rms-­L ength-­B odies-­ consultation-­response-­1-­Oct-­2020.pdf ‘Deadline News’ (16/12/2015) ‘Phone seizures up at Shotts after mobile blocking system brought in,’ Deadline News. Doyle-Price, J (November and December 2017) Parliamentary Question asked by Dr Paul Williams and responded to by Jackie Doyle-Price originally on 20/11/2017 and then corrected on 01/12/2017 @ https://www.parliament. uk/business/publications/written-­questions-­answers-­statements/written-­ question/Commons/2017-­11-­14/113023) European Convention on Human Rights ECHR (1950) @ https://www.echr. coe.int/Documents/Convention_ENG.pdf Feeley, M and Simon, J (1992) ‘The new penology’, Criminology, 39:449-74. French, S (October 2015) Fair and Sustainable: the implications of work intensification for the wellbeing and effectiveness of PGA members @ http:// prison-­governors-­association.org.uk/wp-­content/uploads/2015/11/PGA-­ Working-­Hours-­Workload-­and-­WLB-­Final-­Report-­October-­2015.pdf. Giddens, A (1991) Modernity and Self-Identity, Cambridge: Policy Press. Grierson, J (10/07/2018) ‘£7m to be spent on phones in cells to stem flow of illegal phones,’ The Guardian. Harman, R (01/11/2018) Offender management in custody, Inside Time @ http://www.prisonreformtrust.org.uk/PressPolicy/Comment/InsideTime/ vw/1/ItemID/593

194 

C. D. Skinns

HM Inspectorate of Prisons (28/10/2010) Inspection HMP Nottingham @ https://www.justiceinspectorates.gov.uk/prisons/wp-­c ontent/uploads/ sites/4/2014/03/nottingham-­2010-­rps_.pdf HM Inspectorate of Prisons (14/09/2011) Annual Report 2010-11 @ http:// www.justice.gov.uk/downloads/publications/corporate-­reports/hmi-­prisons/ hmip-­annual-­report-­2010-­11.pdf HM Inspectorate of Prisons (23/07/2013a) Inspection report: HMP Nottingham @ https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/report-­on-­ an-­unannounced-­short-­follow-­up-­inspection-­of-­hmp-­nottingham-­25-­27-­ february-­2013-­by-­hm-­chief-­inspector-­of-­prisons/ HM Inspectorate of Prisons (19/11/2013b) Inspection report: HMP Kennett @ https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/ report-­on-­an-­unannounced-­inspection-­of-­hmp-­kennet-­17-­28-­june-­2013-­ by-­hm-­chief-­inspector-­of-­prisons/ HM Inspectorate of Prisons (10/02/2015a) Inspection report: HMP Nottingham https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/ hmp-­nottingham/ HM Inspectorate of Prisons (14/07/2015b) Annual Report 2014-15 @ https:// www.justiceinspectorates.gov.uk/hmiprisons/inspections?prison-­inspection-­ type=annual-­reports&s&year=2015 HM Inspectorate of Prisons (13/10/2015c) Inspection report: HMP New Hall @ https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/hmp-­ yoi-­new-­hall/HM HM Inspectorate of Prisons (04/05/2016a) Inspection report: HMP Glen Parva @ http://www.justiceinspectorates.gov.uk/hmiprisons/inspections/ hmyoi-glen-parva-2/ HM Inspectorate of Prisons (17/05/2016b) Inspection report: HMP Nottingham @ https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/hmp-­ nottingham-­2/ HM Inspectorate of Prisons (19/07/2016c) Annual Report 2015-16 @ https:// www.justiceinspectorates.gov.uk/hmiprisons/inspections/annual-­ report-­2015-­2016/ HM Inspectorate of Prisons (23/08/2016d) Thematic report—Life in prisons: contact with family and friends @ https://www.justiceinspectorates.gov.uk/ hmiprisons/wp-­content/uploads/sites/4/2016/08/Contact-­with-­families-­ and-­friends-­findings-­paper-­2016.pdf

4 Prisons 

195

HM Inspectorate of Prisons (18/07/2017a) Annual Report 2016-17 @ https:// www.justiceinspectorates.gov.uk/hmiprisons/inspections?prison-­inspection-­ type=annual-­reports&s&year=2017 HM Inspectorate of Prisons (16/08/2017b) Inspection report: HMP Haverigg @ https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/hmp-­ haverigg-­2/ HM Inspectorate of Prisons (07/11/2017c) Inspection report: HMP Erlestoke@ https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/hmp-­ erlestoke-­2/ HM Inspectorate of Prisons (13/12/2017d) Inspection report: HMPHMP and YOI Downview @ https://www.justiceinspectorates.gov.uk/hmiprisons/ inspections/hmp-­yoi-­downview/ HM Inspectorate of Prisons (20/02/2018a) Inspection reports: HMP Usk and HMP and YOI Prescoed @ https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/hmp-­usk-­and-­hmp-­yoi-­prescoed/ HM Inspectorate of Prisons (27/03/2018b) Inspection report: HMYOI Brinsford @ https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/hmyoi-­ brinsford-­5/ HM Inspectorate of Prisons (16/05/2018c) Inspection report: HMP Nottingham @ https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/hmp-­yoi-­ nottingham/ HM Inspectorate of Prisons (06/06/2018d) Inspection report: HMP and YOI Low Newton @ https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/hmp-­yoi-­low-­newton-­2/ HM Inspectorate of Prisons (12/06/2018e) Inspection report: HMP Belmarsh @ https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/hmpbelmarsh-­2/ HM Inspectorate of Prisons (19/06/2018f ) Inspection report: HMP and YOI Woodhill @ https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/ hmp-­woodhill-­3/ HM Inspectorate of Prisons (10/07/2018g) Inspection report: HMP and YOI Oakwood @ https://www.justiceinspectorates.gov.uk/hmiprisons/wp-­content/ uploads/sites/4/2018/07/Oakwood-­Web-­2018.pdf HM Inspectorate of Prisons (11/07/2018h) Annual Report 2017-18 @ https:// www.justiceinspectorates.gov.uk/hmiprisons/inspections?prison-­inspection-­ type=annual-­reports&s&year=2018

196 

C. D. Skinns

HM Inspectorate of Prisons (07/08/2018i) Inspection report: HMP Hull @ https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/ hmp-­hull-­1/ HM Inspectorate of Prisons (11/09/2018j) Inspection report: HMYOI Deerbolt @ https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/hmyoi-­deerbolt/ HM Inspectorate of Prisons (12/10/2018k) Inspection report: HMP and YOI Chelmsford @ https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/hmp-­yoi-­chelmsford/ HM Inspectorate of Prisons (20/11/2018l) Inspection report: HMP Manchester @ https://www.justiceinspectorates.gov.uk/hmiprisons/wp-­content/uploads/ sites/4/2018/11/Manchester-­Web-­2018.pdf HM Inspectorate of Prisons (21/11/2018m) Inspection report: HMP Send @ https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/ hmp-­send-­2/ HM Inspectorate of Prisons (10/01/2019a) Inspection report: HMP and YOI Swinfen Hall @ https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/hmp-­yoi-­swinfen-­hall/ HM Inspectorate of Prisons (09/07/2019b) Annual Report 2018-19 @ https:// www.justiceinspectorates.gov.uk/hmiprisons/inspections?prison-­inspection-­ type=annual-­reports&s&year=2019 HM Inspectorate of Prisons (11/02/2020a) Inspection report: HMP Wormwood Scrubs @ https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/ hmp-­wormwood-­scrubs-­4/ HM Inspectorate of Prisons (07/04/2020b) Inspection report: HMP Nottingham @ https://www.justiceinspectorates.gov.uk/hmiprisons/ inspections/hmp-­nottingham-­3/ HM Inspectorate of Prisons (20/10/2020c) Annual Report 2019-20 @ https:// www.justiceinspectorates.gov.uk/hmiprisons/inspections?prison-­inspection-­ type=annual-­reports&s&year=2020 HM Inspectorate of Prisons (20/07/2021a) Annual Report 2020-21 @ https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/1003082/hmip-­annual-­report-­accounts-­2020-­21.pdf HM Inspectorate of Prisons (26/08/2021b) Inspection report: HMP Send @ https://www.justiceinspectorates.gov.uk/hmiprisons/wp-­content/uploads/ sites/4/2018/11/Send-­Web-­2018.pdf

4 Prisons 

197

HM Inspectorate of Prisons (01/09/2021c) Inspection report: HMP Haverigg @ https://www.justiceinspectorates.gov.uk/hmiprisons/wp-­content/uploads/ sites/4/2021/08/Haverigg-­web-­2021.pdf HM Inspectorate of Prisons (03/09/2021d) Inspection report: HMP Oakwood @ https://www.justiceinspectorates.gov.uk/hmiprisons/wp-­content/uploads/ sites/4/2021/09/Oakwood-­web-­2021.pdf HM Inspectorate of Prisons (07/09/2021e) Inspection report: HMP and YOI Low Newton @ https://www.justiceinspectorates.gov.uk/hmiprisons/wp-­ content/uploads/sites/4/2021/09/Low-­Newton-­web-­2021.pdf HM Inspectorate of Prisons (09/09/2021f ) Inspection report: HMP Wormwood Scrubs @ https://www.justiceinspectorates.gov.uk/hmiprisons/wp-­content/ uploads/sites/4/2021/09/Wormwood-­scrubs-­web-­2021.pdf HM Inspectorate of Prisons (06/10/2021g) Inspection report: HMP Swinfen Hall @ https://www.justiceinspectorates.gov.uk/hmiprisons/wp-­content/ uploads/sites/4/2021/10/Swinfen-­Hall-­web-­2021-­1.pdf HM Inspectorate of Prisons (11/10/2021h) Inspection report: HMPs Usk and Prescoed @ https://www.justiceinspectorates.gov.uk/hmiprisons/wp-­content/ uploads/sites/4/2021/09/Prescoed-­and-­Usk-­web-­2021.pdf HM Inspectorate of Prisons (12/10/2021i) Inspection report: HMP and YOI Deerbolt @ https://www.justiceinspectorates.gov.uk/hmiprisons/wp-­ content/uploads/sites/4/2021/10/Deerbolt-­web-­2021.pdf HM Inspectorate of Prisons (27/10/2021j) Inspection report: HMP and YOI Downview @ https://www.justiceinspectorates.gov.uk/hmiprisons/ inspections/hmp-­yoi-­downview-­2/ HM Inspectorate of Prisons (02/11/2021k) Inspection report: HMP Hull @ https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/ hmp-­hull-­2/ HM Inspectorate of Prisons (12/11/2021l) Inspection report: HMP Belmarsh @ https://www.justiceinspectorates.gov.uk/hmiprisons/wp-­content/uploads/ sites/4/2021/11/Belmarsh-­web-­2021-­1.pdf HM Inspectorate of Prisons (30/11/2021m) Inspection report: HMYOI Brinsford @ https://www.justiceinspectorates.gov.uk/hmiprisons/wp-­content/uploads/ sites/4/2021/11/Brinsford-­web-­2021.pdf HM Inspectorate of Prisons (07/12/2021n) Inspection report: HMP Erlestoke @ https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/hmp-­ erlestoke-­4/

198 

C. D. Skinns

HM Inspectorate of Prisons (14/12/2021o) Inspection report: HMP Woodhill @ https://www.justiceinspectorates.gov.uk/hmiprisons/wp-­content/uploads/ sites/4/2021/12/Woodhill-­web-­2021.pdf HM Inspectorate of Prisons (21/12/2021p) Inspection Report: HMP Manchester @ https://www.justiceinspectorates.gov.uk/hmiprisons/wp-­content/uploads/ sites/4/2018/11/Manchester-­Web-­2018.pdf HM Inspectorate of Probation (December 2020) Annual Report 2019-20 @ https://www.justiceinspectorates.gov.uk/hmiprobation/wp-­content/uploads/ sites/5/2020/12/2019-­2 020-­A nnual-­Report-­Inspection-­o f-­p robation-­ services.pdf HM Prisons and Probation Service (HMPPS) (no date, circa 2017) Minister’s Initial Response Action Plan HMP Nottingham Urgent Notification @ https://www.justiceinspectorates.gov.uk/hmiprisons/wp-­content/uploads/ sites/4/2018/07/3.-­SoSs-­action-­plan-­Nottingham.pdf HM Prisons and Probation Service (28/06/2018) Annual Report and Accounts 2017-18 @ https://www.gov.uk/government/publications/hmpps-­annual-­ report-­and-­accounts-­2017-­18 HM Prisons and Probation Service (16/05/2019) Work Force Statistics Bulletin to 31st March 2019 @ https://assets.publishing.service.gov.uk/government/ uploads/system/uploads/attachment_data/file/801837/hmpps-­workforce-­ statistics-­march-­2019.pdf HM Prisons and Probation Service (20/02/2020a) Work Force Statistics Bulletin to December 2019 @ https://www.gov.uk/government/statistics/her-­majestys-­ prison-­and-­probation-­service-­workforce-­quarterly-­december-­2019 HM Prisons and Probation Service (24/09/2020b) Annual Report and Accounts 2019-20 @ https://www.gov.uk/government/publications/hmpps-­annual-­ report-­and-­accounts-­2019-­20 HM Prisons and Probation Service (16/12/2021) Annual Report and Accounts 2020-21 @ https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1041628/HMPPS_Annual_Report_ and_Accounts_2020-­21.pdf HM Treasury (25/11/2015) Spending Review and Autumn Statement 2015 @ https://www.gov.uk/government/speeches/chancellor-­g eorge-­o sbornes-­ spending-­review-­and-­autumn-­statement-­2015-­speech HM Treasury (15/12/2020) Spending Review and Autumn Statement 2020 @ https://www.gov.uk/government/publications/spending-­r eview-­2 020-­ documents/spending-­review-­2020

4 Prisons 

199

HM Treasury (March 2021a) Budget 2021 @ https://assets.publishing.service. gov.uk/government/uploads/system/uploads/attachment_data/file/966868/ BUDGET_2021_-­_web.pdf HM Treasury (27/10/2021b) Autumn Budget and Spending Review @ https:// www.gov.uk/government/speeches/autumn-­b udget-­a nd-­s pending-­ review-­2021-­speech House of Commons Justice Select Committee (19/03/2019a) The Prison Population 2022 @ https://publications.parliament.uk/pa/cm201719/cmselect/cmjust/483/483.pdf House of Commons Justice Select Committee (31/10/2019b) Prison Governance @ https://publications.parliament.uk/pa/cm201919/cmselect/ cmjust/191/191.pdf Howard League for Penal Reform (02/09/2013) Revealed: The True Scale of Overcrowding in Prison in England and Wales @ http://www.antoniocasella. eu/nume/HowardLeague_overcrowding_England_2sept13.pdf Howard League for Penal Reform (November 2016) ‘Howard League responds to prison reform proposals’ @ https://howardleague.org/news/prisonswhitepaper/ Howard League for Penal Reform (2017) Out of Control @ https://howardleague.org/publications/out-­of-­control/ IMB Annual Report (August 2019–20) HMP Rye Hill @ https://s3-eu-west-2. amazonaws.com/imb-prod-storage-1ocod6bqky0vo/uploads/2020/08/ AR-Rye-Hill-2019-20-for-circulation.pdf IMB Annual Report 2019-20 (June 2020a) HMP Lewes @ https://s3-­eu-­west-­2. amazonaws.com/imb-­p rod-­s torage-­1 ocod6bqky0vo/uploads/2020/06/ Lewes-­AR-­201920-­FINAL.pdf IMB Annual Report 2019-20 (July 2020b) HMP Norwich @ https://s3-­eu-­ w e s t -­2 . a m a z o n a w s . c o m / i m b -­p r o d -­s t o r a g e -­1 o c o d 6 b q k y 0 v o / uploads/2020/07/Norwich-­2020-­annual-­Report-­for-­circulation.pdf IMB National Annual Report 2017-18 (June 2019) @ https://s3-­eu-­west-­2. amazonaws.com/imb-­prod-­storage-­1ocod6bqky0vo/uploads/2019/06/IMB-­ NATIONAL-­ANNUAL-­REPORT-­PUBL-­5-­JUNE-­2019.pdf IMB National Annual Report 2019-2020 (September 2020) @ https://s3-­eu-­ west-­2.amazonaws.com/imb-­prod-­storage-­1ocod6bqky0vo/uploads/2020/10/ IMB-­national-­annual-­report-­201920-­amended-­FINAL-­.pdf Institute of Government Performance Tracker—Prisons (2019) @ https://www. instituteforgovernment.org.uk/publication/performance-­tracker-­2019/prisons

200 

C. D. Skinns

International Declaration of Human Rights (1948) @ https://www.un.org/en/ universal-­declaration-­human-­rights/index.html Islington Council Supplementary Planning Document (2018) @ https:// democracy.islington.gov.uk/documents/s13902/App%201%20-­% 20 Holloway%20Prison%20Site%20SPD%20FINAL%20EXECUTIVE%20 VERSION.pdf Kinman, G and Clements, A (August 2020) ‘POA Members Work-Related Stress and Wellbeing Survey’ @ http://www.poauk/media/1888/poa-­survey-­ of-­work-­related-­wellbeong-­1.pdf Kinman, G, Clements, A and Hart, J (13/11/2014) ‘POA Members Work-­ related stress and well-being survey’ @ http://workstress.net/sites/default/ files/POA%20survey.pdf Le Vay, J (2016) Competition for prisons: Public or Private? Bristol: Policy Press. May, J (1979) Committee of Inquiry into the UK Prison Services Report, Cmnd 7673, London: HMSO. McLaughlin, E, Muncie, J and Hughes, J (2001) ‘The Permanent Revolution: New Labour, New Public Management and the Modernization of Criminal Justice’, Criminal Justice, 1:301-18). MOJ (2010a) Thinking Skills Programme at https://www.swmcrc.co.uk/wp-­ content/uploads/2010/06/thinking_skills_programme_leaflet_-­_ june_2010.pdf MOJ (30/07/2010b) Probation Statistics January-March 2010 @ https://assets. publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/218007/quarterly-­probation-­brief-­q1-­2010.pdf MOJ (2011) Human Resources Work Force Summary of Staff in post 2010/11 @ https://assets.publishing.service.gov.uk/government/uploads/system/ uploads/attachment_data/file/218020/probation-­w orkforce-­r eport-­ q3-­10-­11-­staff.pdf MOJ (2012a) Workforce Information Summary Report 2011-12 @ https://assets. publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/218361/probation-­workforce-­report-­q4-­2011-­12-­staff.pdf MOJ (08/11/2012b) Press Release: ‘Next step for prison competition’ @ https:// www.gov.uk/government/news/next-­steps-­for-­prison-­competition%2D%2D2 MOJ (24/04/2013a) Offender Management Statistics October-December @ https://www.gov.uk/government/statistics/offender-­management-­statistics-­ quarterly-­october-­december-­2013-­and-­annual

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MOJ (August 2013b) FOI Response to question 84378 on cell-sharing made by the Howard League for Penal Reform. MOJ (17/07/2015a) Speech by Michael Gove: ‘Treasure in the heart of man’ @ https://www.gov.uk/government/speeches/the-­treasure-­in-­the-­heart-­of-­man-­ making-­prisons-­work MOJ (30/07/2015b) Offender Management Statistics January-March: Licence Recalls and Probation Tables @ https://www.gov.uk/government/statistics/ offender-­management-­statistics-­quarterly-­january-­to-­march-­2015 MOJ (08/01/2016a) Prison Population Statistics @ https://www.gov.uk/ government/statistics/prison-­population-­figures-­2016 MOJ (18/05/2016b) Coates Review Report Unlocking Potential: A Review of Prison Education @ https://www.gov.uk/government/publications/unlocking-­ potential-­a-­review-­of-­education-­in-­prison MOJ (11/08/2016c) Press Release: ‘Illegal mobile phones to be cut off’ @ www. gov.uk/government/news/illegal-­mobile-­phones-­in-­prisons-­to-­be-­cut-­off MOJ (03/11/2016d) Prison Safety and Reform White Paper @ https://www. gov.uk/government/publications/prison-­safety-­and-­reform MOJ (22/03/2017a) Prisons Statement by Liz Truss to the House of Commons @ https://www.parliament.uk/business/publications/written-­questions-­answers-­ statements/written-­statement/Commons/2017-­03-­22/HCWS550/ MOJ (27/04/2017b) Offender Management Statistics Quarterly October-­ December 2016 and Annual for 2016 @ https://assets.publishing.service. gov.uk/government/uploads/system/uploads/attachment_data/file/610969/ offender-­management-­statistics-­bulletin-­oct-­dec-­2016.pdf MOJ (21/06/2017c) Prison reform: open letter by David Lidington @ https:// www.gov.uk/government/speeches/prison-­reform-­open-­letter-­from-­the-­ justice-­secretary MOJ (07/07/2017d) Prisoner telephony service @ https://assets.publishing. service.gov.uk/government/uploads/system/uploads/attachment_data/ file/532324/MOJ_Government_Major_Projects_Portfolio_Data__ September_2015.csv/preview MOJ (09/07/2017e) Crackdown on drugs, drones and illegal mobile phones @ https://www.gov.uk/government/news/crackdown-­on-­drugs-­drones-­and-­ mobile-­phones-­in-­prisons MOJ (August 2017f ) Lord Farmer Review Report The importance of strengthening prisoners’ family ties to prevent reoffending and reduce intergenera-

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tional crime @ https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/642244/farmer-­review-­report.pdf MOJ (30/11/2017g) Press Release: ‘Justice Secretary enforces robust action to improve prison safety’ https://www.gov.uk/government/news/justice-­secretary-­ enforces-­robust-­action-­to-­improve-­prison-­safety) MOJ (November 2017h) Urgent Notification Protocol: Overview @ https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/665529/urgent-­notification_process.pdf ). MOJ (06/03/2018a) David Gauke Speech Prison reform @ https://www.gov. uk/government/speeches/prisons-­reform-­speech MOJ (May 2018b) Education and Employment Strategy @ https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/710406/education-­and-­employment-­strategy-­2018.pdf MOJ (28/06/2018c) Female Offender Strategy @ https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/ file/719819/female-­offender-­strategy.pdf MOJ (04/01/2019a) Prison Population Bulletin July 2019 @ https://www.gov. uk/government/statistics/prison-­population-­figures-­2019 MOJ (18/02/2019b) Speech by David Gauke: Beyond Prison, Redefining Punishment, MOJ @ https://www.gov.uk/government/speeches/beyond-­ prison-­redefining-­punishment-­david-­gauke-­speech. MOJ (21/04/2019c) Press release ‘Phone detection kit introduced into prisons’ @ https://www.gov.uk/government/news/phone-­detection-­kit-­introducedin-­prisons MOJ (15/05/2019d) Release on Temporary Licence @ https://www.gov.uk/ guidance/release-­on-­temporary-­licence MOJ (June 2019e) Lord Farmer Review Report The importance of strengthening women offenders’ family and other relationships to prevent reoffending and reduce intergenerational crime @ https://assets.publishing.service.gov. uk/government/uploads/system/uploads/attachment_data/file/809467/ farmer-­review-­women.PDF MOJ (July 2019f ) Adjudications: England and Wales 2011-2018 @ https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/820185/the-­adjudications-­story-­2011-­2018.pdf MOJ (11/08/2019g) Press Release ‘10,000 extra prison places to keep the public safe’ @ https://www.gov.uk/government/news/10-­000-­extra-­prison-­places-­to-­ keep-­the-­public-­safe

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MOJ (12/09/2019h) Press Release ‘1,400 prison places approved at Full Sutton’ @ https://www.gov.uk/government/news/1-­400-­new-­prison-­places-­approved-­ at-­full-­sutton MOJ (03/01/2020a) Prison Population Bulletin July 2020 @ https://www.gov. uk/government/statistics/prison-­population-­figures-­2020 MOJ (4/01/2020b) Prison Population Statistics for July 2019 @ https://www. gov.uk/government/statistics/prison-­population-­figures-­2019 MOJ (30/04/2020c) Offender Management Statistics: Adjudications @ https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/882163/Offender_Management_Statistics_Quarterly_ Q4_2019.pdf MOJ (28/06/2020d) Press Release ‘Four new prisons boost rehabilitation and support economy’ 28/06/20 https://www.gov.uk/government/news/four-­new-­ prisons-­boost-­rehabilitation-­and-­support-­economy MOJ (30/07/2020e) Offender Management Statistics: Licence Recalls, Prison Population and Remands, Prison Receptions, Probation Tables @ https://www. gov.uk/government/statistics/offender-­management-­statistics-­quarterly-­ january-­to-­march-­2020%2D%2D2 MOJ (30/07/2020f ) Safety in Custody Statistics @ https://www.gov.uk/government/statistics/safety-­in-­custody-­quarterly-­update-­to-­march-­2020 MOJ (August 2020g) Strengthening Independent Scrutiny Bodies Through Legislation @ https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/910010/strengthening-­s crutiny-­ bodies-­through-­legislation-­consultation-­document.pdf MOJ (03/09/2020h) MOJ Response to IMB National Report 2019-20 by Lucy Frazer, Prisons Minister at https://s3-­eu-­west-­2.amazonaws.com/imb-­prod-­ storage-­1 ocod6bqky0vo/uploads/2020/09/Signed-­A DR81163-­D ame-­ Anne-­Owers-­IMB-­National-­Annual-­Report.pdf MOJ (12/10/2020i) Press Release Extension of 4 jails announced @ https:// www.gov.uk/government/news/expansion-­at-­4-­jails-­announced MOJ (29/10/2020j) Offender Management Statistics April-June @ https://www. gov.uk/government/statistics/offender-­management-­statistics-­quarterly-­april-­ to-­june-­2020 MOJ (03/06/2021) One thousand new probation officers recruited to protect the public @ https://www.gov.uk/government/news/one-thousand-probationofficers-recruited-to-protect-the-public

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MOJ (29/04/2021a) Offender Management Statistics Annual 2020 Adjudications @ https://www.gov.uk/government/statistics/offender-management-statisticsquarterly-october-to-december-2020/offender-management-statistics-quarterly-october-to-december-2020-and-annual-2020%2D%2D2#adjudications MOJ (29/07/2021b) Offender Management Statistics: Adjudications, Licence Recalls, Prison Receptions, Prison Population and Probation Statistics @ https://www.gov.uk/government/statistics/offender-­management-­statistics-­ quarterly-­january-­to-­march-­2021 MOJ (29/07/2021c) Safety in custody statistics: update to March 2021 @ https://www.gov.uk/government/statistics/safety-­in-­custody-­quarterly-­update-­ to-­march-­2021 MOJ (December 2021d) Prisons Strategy White Paper @ https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/ file/1038765/prisons-­strategy-­white-­paper.pdf MOJ/CRCs (2015) Community Rehabilitation Company Workforce Information Summary Report @ https://assets.publishing.service.gov.uk/ government/uploads/system/uploads/attachment_data/file/381044/crc-­ workforce-­information-­summary-­report-­q1-­2014-­15.pdf MOJ/HMPPS (September 2018) Manage the Custodial Sentence Policy Framework @ https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/789926/manage-­c ustodial-­ sentence-­pf.pdf MOJ/HMPPS (25/07/2019) Annual Digest 2017-19 @ https://www.gov.uk/ government/statistics/hmpps-­annual-­digest-­2018-­to-­2019). MOJ/HMPPS (30/07/2020a) Annual Digest 2019-20: ‘Finds’ @ https:// www.gov.uk/government/statistics/hmpps-­a nnual-­d igest-­a pril-­2 019-­ to-­march-­2020 MOJ/HMPPS (19/11/2020b) Workforce Statistics Bulletin @ https://assets. publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/936540/hmpps-­workforce-­statistics-­september-­2020.pdf MOJ/HMPPS (29/07/2021) Annual Digest April 2020 to March 2021 @ https://www.gov.uk/government/statistics/hmpps-­annual-­digest-­april-­2020-­ to-­march-­2021 MOJ/NOMS (05/11/2015) NOMS Workforce Statistics Bulletin @ https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/473818/quarterly-­noms-­workforce-­statistics-­bulletin-­30-­ sep-­2015.pdf

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National Audit Office (07/02/2020) Improving the Prison Estate @ https://www. nao.org.uk/wp-­content/uploads/2020/02/Improving-­the-­prison-­estate.pdf National Offender Management Service (2014, revised March 2016) Policy on Performance Management @ https://www.justice.gov.uk/downloads/offenders/psipso/psi-­2014/psi-­02-­2014-­managing-­performance.pdf National Offender Management Service (11/06/2015) Annual Report and Accounts 2014/15 @ https://www.gov.uk/government/publications/noms-­ annual-­report-­and-­accounts-­2014-­2015 National Offender Management Service (19/07/2017) Annual Report and Accounts 2016-17 @. https://www.gov.uk/government/publications/noms-­ annual-­report-­and-­accounts-­2016-­2017 Prison Reform Trust (Winter 2010) Bromley Briefing @ http://www.prisonreformtrust.org.uk/uploads/documents/FactfileDec10small.pdf Prison Reform Trust (November 2016) PRT response to the White Paper ‘Prison Safety and Reform’ @ http://www.prisonreformtrust.org.uk/Portals/0/ Documents/Consultation%20Responses/Prison%20Safety%20and%20 Reform%20PRT%20response.pdf Prison Reform Trust (Autumn 2017) Bromley Briefing @ http://www.prisonreformtrust.org.uk/Portals/0/Documents/Bromley%20Briefings/old%20editions/Autumn%202017%20Factfile.pdf Prison Reform Trust (31/05/2018) Comment: HMIP Urgent Notification on HMP Exeter @ http://www.prisonreformtrust.org.uk/PressPolicy/News/ vw/1/ItemID/539 Prison Reform Trust (16/07/2020) Capptive Report 1: Families and Communications @ http://www.prisonreformtrust.org.uk/Portals/0/ Documents/CAPPTIVE_families_webfinal.pdf Prison Reform Trust (Winter 2021) Bromley Briefing @ http://www.prisonreformtrust.org.uk/Portals/0/Documents/Bromley%20Briefings/Winter%20 2021%20Factfile%20final.pdf Prison Service Pay Review Body (10/03/2010) Ninth Report @ https://assets. publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/238481/7802.pdf Prison Service Pay Review Body (March 2015) Fourteenth Report @ https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/411955/47256_Prison_Service_v0_7.pdf#:~:text=Prison%20 Service%20Pay%20Review%20Body%202015%20Report%20on,1%20 April%202015%20the%20maxima%20of%20the%20Fair

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C. D. Skinns

Prison Service Pay Review Body (July 2020) Nineteenth Report @ https://assets. publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/902437/CCS0420455368-­001_PSPRB_2020_Web_Accessible.pdf Prison Service Pay Review Body (19/10/2021) Twentieth Report @ https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/1026641/PSPRB_2021_report_-­_web_accessible_ verison.pdf Prisoner Learner Alliance (May 2019) Unlocking the potential three years on @ https://prisonerlearningalliance.org.uk/wp-­c ontent/uploads/2019/05/ Unlocking-­potential-­%E2%80%93-­three-­years-­on.pdf Prisoners’ Education Trust (29/01/2019) New educational contracts create challenges and opportunities @ https://www.prisonerseducation.org.uk/2019/01/ new-­prison-­education-­contracts-­create-­challenges-­and-­opportunities/ Radcinowicz, L, and Hood, R (1990) The Emergence of Penal Policy in Victorian and Edwardian England, Oxford: Clarendon Press. Reiner, R (2016) Crime, Cambridge: Polity Press. Rose, G (11/02/2014) ‘Scots jails to pilot mobile “phone blocking scheme”,’ The Scotsman. Schliehe, A and Crewe, B (June 2021) ‘Top bunk, bottom bunk: cell-­sharing in prisons, British Journal of Criminology @ https://academic.oup.com/bjc/ advance-article/doi/10.1093/bjc/azab053/6321031 Skinns, D (2016) Coalition Government Penal Policy 2010-15: Austerity, Outsourcing and Punishment, London: Palgrave/Macmillan. Skopeliti, C (08/03/2019) ‘Holloway Prison to be turned into affordable housing,’ The Guardian. Steger, M and Roy, R (2021) Neoliberalism, Oxford: OUP. Stewart, R (27/06/2018a) Answer to Parliamentary Question @ https://hansard. parliament.uk/Commons/2018-­06-­27/debates/D2728913-­405E-­49BD-­ AA3E-­5EEC3E4E49BB/PrivatelyFinancedPrisons Stewart, R (31/10/2018b) Prisons Minister’s answer to Richard Burgon Number 186403 @ https://www.parliament.uk/written-­questions-­answers-­ statements/written-­question/commons/2018-­10-­31/186403 Sutcliffe-Braithwaite, F (n.d.) The decline of deference and the left @ https:// discovery.ucl.ac.uk/id/eprint/1518550/1/sutcliffe_braithwaite_IPPR%20 piece%20final.pdf Travis, A (12/10/2017) ‘Closures of ageing jails on hold for five years as prison numbers soar,’ The Guardian.

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Webster, R (24/01/2018) Urgent notifications—a symptom of our prison crisis  @ http://www.russellwebster.com/urgent-­notifications-­a-­symptom-­of-­ our-­prison-­crisis/ Woolf, H and Tumin, M (1991) Prison Disturbances, April 1990, London: HMSO. Wright Mills, C (2000) The Sociological Imagination, Oxford: Oxford University Press.

5 Probation

Introduction This chapter provides a critical examination of the Conservative governments’ ‘probation’ policy in relation to adults and young adults in England and Wales in the May 2015 to March 2020 period. The chapter is supplemented by the consideration of bias in the penal system provided in Chap. 6. It is extended to the summer of 2021 and concluded by the consideration of the penal system and the pandemic offered in Chap. 7. The critical examination in this chapter takes two forms. The internal critique considers whether the policies were consistent with Conservative government penal philosophy and achieved their intended aims and impact. The external critique considers whether the policy changes assuaged the penal crisis. Probation is understood here to include three different community-­ based penal forms, namely, the supervision of offenders sentenced to community orders (COs) and suspended sentence orders (SSOs), the supervision of prisoners released on licence and the provision of through-­ the-­gate (TTG) services, which prepare prisoners for immediate release into the community. COs consist of one order with a number of requirements which may be imposed, alone or in combination, on a ‘pick and mix’ basis by the © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 C. D. Skinns, Conservative Government Penal Policy 2015–2021, https://doi.org/10.1007/978-3-031-00797-2_5

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court. The maximum length of a CO is three years. By 2015, the community order requirements included alcohol abstinence, rehabilitation activity (replacing specified activities and supervision), attendance centres (restricted to those under 25 years of age), curfews, drug rehabilitation, exclusion, accredited courses, drug, alcohol and mental health treatment, prohibited activities, residence, unpaid work (UPW) and a foreign travel prohibition. SSOs are not strictly community, but custodial, penalties, but the custodial sentence is held in abeyance for a maximum of two years. Following the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012, an SSO could be simply a suspended sentence of imprisonment or a suspended sentence of imprisonment combined with any package of the various CO requirements. By 2013, electronic monitoring (EM) had been made a method of enforcing compliance with any CO and SSO requirement, greatly expanding its scope. Most prisoners are released from prison at some time and virtually all are, since 2015, released on licence, that is, their release is conditional on them abiding by licence conditions and being supervised by the National Probation Service (NPS) or, from early 2015, a Community Rehabilitation Company (CRC). Finally, the task of resettlement begins at the very start of the prison sentence, continues throughout the career of the prisoner, but then is supposed to become focused in the last few months of the prisoner’s sentence, when a specific set of through-the-gate services are engaged to deal with matters related to immediate release like accommodation, employment, income maintenance and debt management. Four government policies on probation are addressed in this chapter: the probation outsourcing disaster; the debacle associated with the disproportionate rise in recalls to prison for short sentence prisoners; ineffective through-the-gate services and the flagging fortunes of community sentences.

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 onservative Governments and the Probation C Outsourcing Disaster By May 2015, when the Cameron Conservative government came to power, the Coalition-imposed part-privatisation of probation had begun, after a short lead up period. The National Probation Service was to be responsible for the allocation of an estimated 70% of low- to medium-­ risk offenders to the new Community Rehabilitation Companies (CRCs), the supervision of the remaining 30% of medium- to high-risk offenders on COs and SSOs and prisoners released on licence in the community, on-going risk assessments of offenders, pre-sentence reports for courts and participation in Multi-Agency Public Protection Arrangements (MAPPA). The mostly for-profit CRCs took over the supervision of lowto medium-risk offenders on COs and SSOs and prisoners released on licence in the community, the responsibility for the organisation of UPW and the provision of in-prison through-the-gate support for all prisoners. The contracts were awarded to the CRCs for seven years and had an estimated value of £3.7bn (NAO March 2019:4). The 2015–2020 period offered ample opportunity to assess the reforms and do something about them if they were shown to be failing. What was discovered, when and how successive Conservative governments responded to the emerging situation, are pertinent questions. I will consider this by assessing whether the privatisation of probation did indeed lead, as claimed, to greater innovation and effectiveness (in relation to public protection, reduced reoffending and order completion) and provide for an improved system of accountability and reduced costs, as the then Minister of Justice, Chris Grayling, suggested. In order to consider all aspects noted above, I will examine reports from six sources. Firstly, two snapshots of progress, based on the Chief Inspector of Probation’s (HMIPr) Annual Reports in December 2017 (after 32 months of the operation) and March 2019 (after 42 months of the operation). These reports mostly commented on innovation and effectiveness, but also the underlying fundamental problem of the reforms, namely, the lack of financial viability of the CRCs. The second snapshot was provided by the NAO reports (2016, 2017 and 2019) and the House of Commons Public

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Accounts Committee (April 2019), with these reports being primarily concerned with the financial aspects of the reform, whilst also noting the problems with effectiveness. My focus here is on the impact of outsourcing on probation practice, specifically on how well the NPS and CRCs were able to carry out the duties of the supervision of offenders on COs and SSOs given the new structures put in place. I will comment here only in passing on the impact of the changes on the practice of through-the-­ gate care, reserving my more detailed comments for the separate section on this set out below. It is not hard to summarise what happened regarding the outsourcing of CO and SSO supervision—the part-privatisation of probation failed in every possible way and this failure was evident very soon after 2015 and was certainly blatant by as early as 2017. Unfortunately, the response of successive Conservative governments has been delay, prevarication and ideological constipation, which continued even to 2020. In her first annual report as Chief Inspector of Probation, in December 2017, Glenys Stacey brought together the findings of 29 separate inspections beginning after one year from the start of the new scheme and taking in some 32 months of development overall. She concluded that although some initial ‘teething problems’ had been resolved, there were ‘deep-rooted’ problems with the reforms of an organisational and commercial nature. As a result, the CRCs were not delivering the service that was needed or planned for (HM Inspectorate of Probation [HMIPr] December 2017b). The underlying reason for this failure was clear to Stacey—it derived from the unfulfilled and unrealistic government expectations that the CRCs would supervise the more numerous, low-risk offenders. Instead, because of ‘unanticipated changes in sentencing’, CRCs had not received anywhere near the number of expected clients and the majority of offenders under their supervision were of medium risk. This situation had ‘seriously affected their (the CRCs’) commercial viability, causing some to curtail, change or stall, their … plans, mid-way’ (HMIPr December 2017b:6). As a consequence, CRC staff numbers had been reduced, some to a worrying extent, with junior staff carrying caseloads of up to 200. And that ‘[m]ost CRCs are struggling’ financially and ‘most owners ambitious to remodel services have found probation difficult to

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reconfigure or re-engineer. Delivering probation services is more difficult than it appears, particularly… in rural areas. There have been serious setbacks’ (HMIPr December 2017b:6). Consequently ‘The quality of CRC work is generally poor and needs to improve in many respects’ (HMIPr December 2017b:51). The report went on to detail some of the failings in relation to supervision of offenders on COs and SSOs. Stacey was particularly critical of how the new, commercial arrangement had disrupted the one-to-one relationship between probation officer and offender and that although initial meetings were face to face, subsequently, some 40% of contacts providing routine supervision were by telephone or in open booths that lacked privacy often on premises used for other purposes by the public, and undertaken only every six weeks, often by junior staff carrying very heavy caseloads (HMIPr ibid.: 6 and 86). For Stacey this ruled out the essence of the probation/offender relation which depended on ‘a close, forthcoming and productive relationship between an individual and their probation worker’ which had the necessary benefits of ‘motivating offenders, working continuously with them to bring about change, and at the same time protecting the public from harm’ (HMIPr ibid.: 6). Stacey suggested that it was ‘inexplicable that, under the banner of innovation, these developments were allowed’ (HMIPr ibid.: 6). Stacey also noted that whereas the CRCs were failing in their duty to protect the public from harm, the NPS was doing well in this regard, albeit there was ‘still room for improvement’. Stacey concluded overall that ‘Regrettably, none of government’s stated aspirations for Transforming Rehabilitation have been met in any meaningful way. I question whether the current model for probation can deliver sufficiently well’ (HMIPr ibid.: 12). The National Audit Office (NAO) (April 2016: Page 10 Para 18 summary) noted that, after a little less than one year of operation, the MOJ ‘ha[d] successfully restructured the probation landscape, avoiding major disruptions in service … but this is only the beginning … [and there is a need to] “address operational problems” including capacity issues, weaknesses in ICT systems and performance data and improve working relationships between NPS and CRC staff’. Clearly, the governments of the time (first and second May governments) were aware of the key problem that Stacey later documented in

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her Annual Report in December 2017, that is, the commercial unviability of the CRCs. Indeed, action was taken in July 2017 to adjust the contracts by approximately £0.4b by contract end. This then sparked an NAO investigation given that complaints were received by the NAO that the adjustment was made in a less than transparent way (NAO December 2017b Para 9 page 6). The NAO report went on to examine why the MOJ adjusted the CRC contracts, how they adjusted the contracts and with what consequences (NAO December 2017b). The NAO report noted that the main reason that contracts were adjusted was that work for the CRCs was well below the volume originally expected (between 8 and 48% less) because of ‘unforeseen challenges’ (Summary Para 8, page 6) and had this continued unchanged this would have meant that the estimates of fees paid to the CRCs over the life time of the contracts would have been £2.1bn rather than £3.7bn. The reduced income and reduced projections of income, it was noted, had a deleterious impact on the performance of the CRCs so that by June 2017 they had met only one-third of their performance targets (see Part 1, Paras 1.8-1.12, page 19). The need for contract adjustment resulted from MOJ and bidders having ‘overestimated the CRCs’ ability to reduce … costs’ (Summary Para 8, page 6). The impact of the adjustment meant that the CRCs were to be given £2.5bn by contract end rather than £2.1bn (December 2017 Summary para 12, page 11 and Part 3, para 3.8, page 29). The NAO report is disappointing in two ways. It adopts a ‘narrative verdict’ on the issue of the alleged lack of transparency and, even more pertinently ends by noting, with regard to perhaps the single most important reason given for making the change overall, to contribute to austerity by reducing public expenditure, ‘we did not examine the value for money implications of the contractual change’ (December 2017b: Para 10, page 6). At this juncture, at the end of 2017, after 32 months of operation, how did the then second May government respond to the growing criticism? The political context was that in June 2017 the first May government went to the polls and was returned with a much-reduced majority in the midst of the growing Brexit furore. A new justice secretary was appointed, David Lidington, who by the time of these reports had been in office for

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about six months. The new justice secretary is reported to have stated that: ‘I have made probation a priority in my first six months … [in fact he only served as Minister of Justice for seven months in total] as justice secretary I am committed to delivering a service which strictly enforces sentences, reduces reoffending and protects the public’ (Lidington quoted by Travis 14/12/2017). What this priority amounted to is recognition of both the failings of the CRCs to deliver and knowledge of the fundamental cause, funding and the lack of medium-term viability of the CRCs even by the summer of 2017. It emerged in July 2017 as noted above that the contracts of eight CRCs had been adjusted in a bailout over the next seven years. A mere three weeks on from this statement Lidington was no longer the Minister of Justice. At the height of this situation the furore that emerged in April 2018 concerning ‘two-jobs Stacey’ is worthy of note. At an appearance at the House of Commons Justice Select Committee, Stacey was lambasted by the chair, Bob Neill, for offering ‘profoundly unsatisfactory answers’ to questions about the fact that she then had two appointments (one full time as Chief Inspector of Probation and one, a two-day a week appointment with the Department of Environment, Food and Rural Affairs) with the implication that she could not properly deal with the clear failings of probation as a result. On this it needs to be noted that the comments looked like an attack on the messenger bearing very bad news, that the problems of probation were structural and hardly within the powers of the inspectorate to change without government intervention and that howsoever inefficient having multiple jobs simultaneously actually was, it was hardly unknown amongst MPs (see Stacey’s appearance at the House of Commons Justice Select Committee—Video 17/04/2018a). Indeed, it emerged in the subsequent row over MPs having additional employment, more than 100 MPs have second jobs (see Mason 09/11/2021 and Murray 07/11/2021). In 2019, three highly critical reports were published which revealed yet further issues with probation, including a further Annual Report by Glenys Stacey (HMIPr March 2019a), the NAO report on ‘Transforming Rehabilitation’ and the House of Commons Public Accounts Committee report (April 2019). In her third and last Annual report in 2019, Glenys Stacey found that by 2019, 80% of CRCs inspected were ‘inadequate’

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concerning the implementation and delivery of probation supervision (March 2019: 4), with the NPS, across the board, providing a superior performance. The basis of the assessment was the ASPIRE framework, which breaks down effective supervision to assessment, planning, implementation and evaluation. Thus for ‘assessment’, all NPS services inspected obtained a rating of ‘good’ or ‘outstanding’, whereas for the CRCs inspected only 20% were rated ‘good’ and 80% rated ‘requiring improvement’ or ‘inadequate’. For ‘planning’ NPSs were rated 100% ‘good’ or ‘outstanding’ and the CRCs inspected 100% either as ‘requiring improvement’ or ‘inadequate’. For ‘implementation’ for NPS, 67% of services inspected were rated ‘good’ and 33% ‘requiring improvement’ but for the CRCs 100% were rated as ‘requiring improvement’ or ‘inadequate’. With regard to protecting the public the NPS inspected had ‘little room for improvement’ (2019a:82), whereas the CRCs inspected were found to have an ‘insufficient focus on the requirements to keep people (the public) safe’ (HMIPr March 2019a:82). The HMIPr report found that ‘Our detailed data shows a differentiation and sometimes very marked differences, between the good-quality work we generally find in NPS and poor-quality work we generally find in the CRCs we have inspected’ (March 2019: 13). Overall by 2019 the outgoing Chief Inspector of Probation stated that: ‘Experience has shown that it is incredibly difficult, if not impossible, to reduce the probation service to a set of contractual requirements and measures, and equally difficult to deliver probation well without a nationwide approach to the essential underpinnings of the service. Significant flaws in the system have become increasingly apparent. It will be virtually impossible to deal with these issues if most probation supervision continues to be provided by different organisations, under contract. I urge the government to consider carefully the future model for probation services’ (HMIPr March 2019a:17). In March 2019, the NAO published ‘Transforming Rehabilitation: Progress review’. The report noted that in the interim the Minister of Justice, in July 2018, ‘acknowledged that the quality of probation services being delivered was falling short of expectations and announced that the Ministry will terminate the CRC contracts 14 months early, in December 2020, with a view to ‘procure second-generation contracts in April 2019’.

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The 2019 NAO report focused on the achievement of objectives, implementation of reforms and use of learning to inform future probation services. They noted that with regard to the achievement of objectives that, although some reduced reoffending had been achieved by the CRCs (by 2017 a 2.5% reduction although there had been 22% increase in the number of proven reoffences per reoffender over the same period), this had not been sufficient to meet the MOJ targets of 3.7% over the life of the contracts and only 6 out of the 21 CRCs achieved statistically significant reductions in reoffending (Para 7, page 6). Furthermore, the MOJ had not achieved the wider objective of increasing third-sector involvement in the field, there had been limited innovation, there had been a significant increase in the number of people recalled to prison (see the section in this chapter on this matter), through-the-gate services had been ‘ineffective’ (again see the section on this matter in this chapter), and although NPS had established a national structure, it had been constrained by staffing shortfalls and high workloads (Para 8, page 7). Overall the CRCs have ‘performed poorly against a range of measures’ including the meeting of contractual targets (only 53% of CRCs met targets) and HMPPS gave only 5 of the 37 CRCs audited an amber/green rating showing they were compliant. The NAO also noted the poor results obtained in HMIPr inspections. In contrast, NPS performance was ‘much stronger’ with 94% meeting performance targets, in 2018, 15 of 26 of the services gaining ‘amber/green’ ratings in HMPPS assessment, and all 13 regions inspected by HMIPr being rated positively (NAO March 2019: Para 10 and 11, pages 7–8). Assessing the Grayling reforms overall, the NAO March 2019 report is both explicit and scathing stating that the MOJ ‘designed and implemented its reforms too quickly and without sufficient testing’ (ibid.: Para 12, page 7), that the interface between HMPPS, CRCs and NPS did not work smoothly (ibid.: Para 13, page 7) and the MOJs ‘commercial approach proved to be inappropriate given the nature of probation services’ (ibid.: Para 14, page 9). The NAO March 2019 (Para 15, page 9) report noted that regarding the future of probation services that the MOJ ‘faced with multiple provider failures, the Ministry decided to terminate the CRC contracts 14 months early (by December 2020).’ They apparently did this because

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their scoping studies revealed that not only would the CRCs not make the expected £269m profit, but would actually make a loss of £294m over the life of the contracts and would almost certainly withdraw service, provide subsequent low levels of service and probably become insolvent (as indeed one did, Working Links which had three contracts and went into administration in February 2019). However, in order to sustain them to 2020, the MOJ agreed to pay an extra £171m and overall together with the changes to the contracts made in 2017–2018 ‘the total estimated additional cost becomes at least £467m’ (NAO March 2019: Para 16, page 9). However, the NAO 2019 report suggests that the MOJ has ‘identified and acted on many of the shortcomings’ including ‘understanding what was not working, abandoning payment by results, designing minimum standards of service, developing the probation service and improving local commissioning’ (Para 17, page 9). ‘But the MOJ’s proposals do not deal with all the risks and they introduce new ones’ including retaining the split between NPS and CRCs, of moving to and managing the new contracts and of managing the possibility of failure up to December 2020 of one or more of the current contractors and managing the transition between old and new contractors. When Working Links went into administration in February 2019, the MOJ simply transferred its work to one of the existing contractors, Seetec (Para 18, page 10). The NAO report ends by, at last, assessing whether the reforms have constituted ‘value for money’. They concluded that, on the basis of the results found, the MOJ ‘set itself up to fail in how it approached the TR [Transforming Rehabilitation] reforms,’ the rushed implementation leading to being badly placed to manage contracts, and ‘TR has achieved poor value for money for the taxpayer’ (Para 19, page 10). The consequences, the report notes, are dire in that there has been under investment in probation, little of the hoped-for innovation and many persistent operational issues. Furthermore, the MOJ’s current solution, to seek new contracts, has got little time to play out and has to ensure that the same mistakes are not made again. Finally, the House of Commons Public Accounts Committee (April 2019) Transforming Rehabilitation: Progress Review was equally damning noting that:

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In its haste to rush through its reforms at breakneck speed the MOJ not only failed to deliver the ‘Rehabilitation Revolution,’ but left probation services underfunded, fragile and lacking the confidence of the courts. Inexcusably, probation services have been left in a worse position than they were before the Ministry embarked on its reforms’. (House of Commons Public Accounts Committe Report April 2019: 3)

Many aspects of the reforms were not working, the CRCs were short of clients, the funding system was tied to the flawed PBR model and financial pressures mounted. The Public Accounts Committee Report also noted that the ‘MOJ says that it has learned lessons,’ but it now needs to show that it is putting them into practice by urgently making desparately needed improvements in probation services (House of Commons Public Accounts Committee April 2019: 3). The response of the MOJ to the wealth of evidence about the privatisation disaster can be seen as testament to their unwillingness to let go on this central principal of their ideology. In May 2019, David Gauke announced that CRC contracts would not be put out to tender as previously indicated. Instead, there would be ‘a major renationalisation of the probation sector in England and Wales’, but privatisation would be retained and contracts would be put out for rehabilitation services like accredited programmes and for UPW. This would have meant that the day-to-day supervision of clients would no longer be undertaken by CRCs. Further, it was announced that probation would be re-organised into 11 new regions all run by the NPS, but with ‘innovation partners’ to run some services drawn from the private sector, charities or a Nongovernmental Organisation (NGO). The Chief Inspector of Probation, Glenys Stacey, is reported to have responded to the changes by saying that she was ‘delighted at the secretary of state’s decision’ because probation is a ‘complex social service’ which cannot be reduced to contractual arrangements (MOJ 16/05/2019c, 2019d; Grierson 16/05/2019). And then, after just over five years of the Grayling reforms, and after more than three years of prevarication, the second Johnson Conservative government announced that the re-nationalisation of probation would be total, with no contracts offered to what had been called ‘innovation partners’ (Robert Buckland statement to the House of Commons 11/06/2020), but not because privatisation was the inappropriate, but

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because the new coronavirus pandemic made the process of contracting impossible within the time frame. The announcement was welcomed by NAPO but criticised by the existing contractors (e.g. by Seetec 11/06/2020), as well as by the CBI (see Grierson, J 11/06/2020b). The Chief Inspector of Probation, Justine Russell, noted that the change was not a silver bullet and improvement of service would still need proper funding and the recruitment and training of more probation officers (Grierson 04/06/2020a and 11/06/2020b). This was followed, days later, by an HMPPS paper (HMPPS June 2020a), suggesting a need for a flexible service, characterised by an emphasis on the better use of community sentences as alternatives to custody, inspiring greater judicial confidence and influence within courts, providing development opportunities for staff (starting with the NPS employing the staff employed by the CRCs) and working in a more integrated fashion, as well as developing appropriate partnerships. In other words, the move away from outsourcing was expedient, for the moment, not a matter of principle. To take stock, the Grayling outsourcing of probation did not ‘reduce unnecessary bureaucracy’ if it ever existed in the first place and did not encourage greater innovation except maybe to engage in phone-based supervision. It turned out that private companies were not able to deliver services more flexibly and innovation was far from responsible. Standards in the CRCs were poor regarding protecting the public and statistically significant decreases in reoffending were not found for most CRCs. Providers were not properly held to account in a more transparent manner and payment by results was abandoned. The privatisation of probation did not drive costs down and was not value for money. In short, the Grayling privatisation of probation was a disaster, exacerbated by successive Conservative government inaction, caused as much by an ideological fixation to defend privatisation at any cost, as the political turmoil of the period. Time will tell whether the new ‘Probation reform programme’, first mooted in 2019 (see MOJ 16/05/2019c and 16/05/2019d), but later redeveloped to achieve implementation in late June 2021 and full operation in 2022 (for the full range of documents here see MOJ 08/06/2021), will produce positive results, but the tendency of the initiating statements of this programme referred to above suggests that if success depends on the need for the acknowledgement of previous failure, then this scheme

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is unlikely to succeed. Government policy here has not dealt with the inherent flaws of the system in a timely manner and has pursued austerity regardless of clear problems and continued to extoll the virtues of outsourcing even when it was clearly not working.

 overnment Responses to the Prison G Recall Debacle The Rehabilitation of Offenders Act 2014 introduced new, year-long, compulsory, post-sentence supervision for short prison sentence offenders when they were released from custody. This single change increased probation workloads by about 20%. The reform was implemented at the same time as the fundamental re-organisation and part-privatisation of the probation service discussed in the first part of this chapter. It meant that this volatile group of clients had to abide by conditions imposed for a year, or face being recalled to prison for 14 days (yet another short period of imprisonment), a fine (with non-payment potentially leading to imprisonment) or the imposition of a supervision default order involving either a curfew or an unpaid work requirement (the breach of the order being potentially punishable by a short sentence of imprisonment). Although some kind of intervention for released short sentence prisoners was broadly welcomed, there was much opposition to compulsory, inflexible and lengthy conditions being imposed because it was thought that such measures would condemn this group of prisoners to failure and reinforce ‘the revolving door of prison, breach and recall back to custody’ (Prison Reform Trust [PRT] February 2013). Nevertheless, the Coalition government legislated to introduce year-­ long supervision/licence conditions for short sentence prisoners with the changes, perhaps not coincidentally, coming into effect at about the same time as the outsourcing reforms. In my previous book, I noted that the move to introduce lengthy post-sentence supervision requirements on this group of offenders may have been as much inspired by the need to make the privatisation of probation attractive to investors by expanding the ‘market’ by 20%, as a drive to reduce reoffending. My concern here is

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to critically examine how successive Conservative governments responded to the emerging recall to prison debacle. There can be little doubt that the concerns of the PRT about the creation of a revolving prison door have proved well-founded. Prior to the reforms, total recalls to prison increased from 16,591  in 2011/12 to 17,701 in 2014/15, a rise of 7%. However, after the reform of licence conditions for short sentence prisoners, whereas recalls to prison of this type of offender increased alarmingly from their inception to 2019–20, recalls for other prisoners decreased by 14% (Table 13, Chap. 4). A more detailed analysis of the position of short sentence prisoners and recall is provided by HMIPr Thematic inspection May 2019 (HMIPr May 2019b). This document suggests that, some two years after the introduction of the reforms, in the period October 2017 to September 2018 about 38,000 short sentence prisoners were released on licence and some 24% (8994) of this category of prisoners were recalled to custody (HMIPr May 2019b: 5). It is not possible to determine from existing evidence (see in particular MOJ/Eaton and Mews 2019 and MOJ October 2020c) whether the imposition of lengthy licence conditions on prisoners released after serving sentences of less than 12 months led to a change in reoffending rates in 2015/16 to 2018/19. However, what is clear is that there was no major change in reoffending rates of short sentence prisoners with the rate remaining stubbornly at or above the 60% mark (see in particular Figure 5 MOJ October 2020c: page 9) and that subject to various caveats about the comparability of offender groups (see Eaton and Mews/MOJ 2019: pages 2–3), the differential reoffending rates of offenders released from short custodial sentences and those placed on COs and SSOs remained similar, with a greater proportion of those released from short custodial sentences reoffending compared with either COs or SSOs (ibid.: page 1). In July 2018, in the context of the clear problems with the CRCs and with recall to prison, David Gauke announced a consultation which addressed the recall to prison problem of short sentence prisoners. Question 4 of the consultation asked ‘what changes should we make to post-sentence supervision … arrangements to make them more proportionate and improve rehabilitative outcomes’ (Grierson 27/07/2018;

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MOJ July 2018: pp. 17–18 particularly Question 4). The consultation thus defined the terms very tightly, allowing comment on the post-sentence supervision, but very little scope for any more fundamental critique. The response document was published some nine months after the end of the consultation (MOJ 16/05/2019c) and not long before the change in government in July 2019. There were 353 responses to Question 4 of the consultation, and the government response document, not very convincingly, suggested that they were very varied and difficult to categorise and summarise and then went on to do exactly that with the main themes being: • ‘1/5 of responses arguing that there was a need to ensure that the right interventions and resources were available to address needs; • an unspecified number of responses argued for the abolition of post-­ sentence supervision and that contact be made voluntary; and • a further unspecified number of responses suggested the need to make post-sentence supervision more proportionate to assessed risk and needs’ (MOJ May 2019 ibid. see pages 38–39). But thereafter the response document made no reference to the post-­ sentence supervision of short stay prisoners. The PRT was right to point out from the beginning how the consultation had structured the responses in an unacceptable manner. Hence, the PRT resisted the invitation to provide a response entirely determined in this manner on the grounds that to do so would be to ignore ‘the full implications of the disastrous original design of the TR experiment’, in order ‘to avoid political embarrassment’. The PRT paper went on to note that one of the fundamental assumptions of the original legislation was that ‘compulsory supervision was likely to reduce reoffending rates amongst short term prisoners’ but that there was no evidence to support such view. They concluded that the acceptance by the MOJ in the consultation document that extending post-release compulsory supervision to short sentence prisoners was a ‘sound principle’ ‘is simply wrong’. The PRT response went on to argue that assistance did need to be provided, but not on a compulsory basis (PRT September 2018). They welcomed the view expressed in the consultation that community penalties work better than short periods of custody. But they argued that the

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solution to the difficulties here was not to add the trip mechanism of lengthy compulsory post-sentence supervision to a failing measure, but Parliament should legislate to amend the Offender Rehabilitation Act by removing compulsory supervision for short custodial sentences and at the same time introduce a statutory presumption against their use in the first place (PRT September 2018:3).

During 2018/9 a MOJ shift in policy on this issue seemed to be afoot, when David Gauke, the then Minister of Justice appointed in January 2018, indicated that short prison sentences should become a ‘last resort’ and community sentences be used by courts instead (see comments reported by Gayle, D 26/05/2018), followed by the MOJ consultation event in the summer of 2018 (MOJ July 2018). Although no comment was offered about this in the government response to the consultation, the Minister’s position did shift, albeit ignoring the issue of changing the post-sentence supervision from compulsion to being voluntary. Instead, it focused on being more assertive about the continued existence of short prison sentences as they ‘were simply not working’ arguing that sentences of six months or less should be abolished and replaced by a community order regime rooted in robustness (based more on punitive penalties and a greater emphasis on compliance), smartness (based on the deployment of technology and boosting the use of treatment conditions of community orders) and credibility, particularly to the courts (based on a re-organisation of the probation service and having a stricter compliance regime) (MOJ 18/02/2019b Speech by David Gauke; MOJ 18/07/2019e and 24/07/2019f Speeches by David Gauke). But then Gauke’s own position become problematic, as he was one of the Tory resisters of Brexit at any cost, and he was removed from office by July 2019 and left parliament in December 2019. His comments at this juncture can only be seen as an attempt to set an agenda which he hoped the next Justice Minister might follow (see Dearden 18/02/2019). Policy since July 2019 (going through one general election) must have been a great disappointment to him. Robert Buckland occupied the role of Minister of Justice from this date until September 2021. He appeared

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twice at the House of Commons Justice Select Committee (in 16/10/2019 and 07/04/2020) and in between time set out his views on what was to be done in notes on the Queen’s speech and has not mentioned post-­ sentence supervision at all and made it clear that he intended to retain, not introduce a ban on or a presumption against, short prison sentences (House of Commons Justice Select Committee 16/10/2019; MOJ December 2019: page 66; House of Commons Justice Select Committee 07/04/2020). Instead, he has argued (in the same venues as noted above) that certainly temporarily and maybe permanently, the actual decision should be left to judges as to sentence use and that the role of government was to ensure that there was a sufficient range of ‘robust’, ‘smart’ and ‘credible’ community sentences available to judges. This was so because, even if ineffective in terms of reducing reoffending, there remained a need for sentences that uphold the authority of the court. Buckland cited here the example of offenders who breach community orders as being suitable for short prison sentences. However, at both sessions of the House of Commons Justice Select Committee, Buckland promised some resolution of matter by a White Paper on sentencing which was published in the autumn (MOJ September 2020a), but during the pandemic. Chris Grayling tried to address the failure of short prison sentences to reduce reoffending by tacking on an equally problematic further measure, a year-long period of post-sentence supervision, probably motivated by the need to make probation supervision a more commercially viable proposition. Short prison sentences do harm to prisoners, do no good, are costly to taxpayers and to victims (by not being effective at curbing reoffending), but have so far been retained on the grounds of judicial choice. Year-long compulsory post-sentence supervision for offenders released from short prison sentences acts as a snake leading back to prison rather than a ladder to rehabilitation but have so far been retained by successive Conservative governments for the whole of the 2015–2020 period. As a result, government policy in the 2015–2020 has failed to get a grip on the revolving prison door for short sentence prisoners, and the new model for probation emergent 2020–2021 also ignores this issue. Policy here has largely ignored the glaring issue and thus contributed to harshness, particularly by condemning some offenders to be subject to the revolving door of the prison.

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Government Responses to the Through-the-­Gate (TTG) Services Debacle We now turn to a further aspect of probation, previously touched on, namely, the provision of in-prison through-the-gate services, in the last few months of the prison sentence. Prior to the spring of 2015, through-­ the-­gate services were provided by probation. From 2015, the in-prison short-term preparation of all prisoners for release was allocated to the CRCs, although the actual supervision of the offenders when released on licence was to be carried out by the CRCs (for low- and medium-risk offenders) and the NPS (for medium- to high-risk offenders). CRCs had begun work on through-the-gate care for all prisoners in April 2015 alongside the other changes. It became increasingly clear that all was not well. As early as January 2016 HMIPr ‘signalled their concern that through-the-gate expectations were not being given priority on the ground’ (CJJI October 2016: 1). This was followed by more detailed reports from the Criminal Justice Joint Inspectorate, involving HMIP and HMIPr, for short and longer sentence prisoners (CJJI October 2016 and HMIPR June 2017a). The CJJI October 2016 report was published some 18 months after the introduction of the innovation when it would have been ‘reasonable to assume that a core service would be in place’. Nevertheless, despite the fact that TTG was a flagship of the ‘Transforming Rehabilitation’ agenda, there had been ‘little change and little delivered’ (p3). The needs of prisoners were not being properly identified and planned for, not enough was being done to help prisoners get ready for release and manage risks, and there was no monitoring of outcomes for prisoners who had been released. Although long recognised that the task of TTG would need to focus on helping prisoners with accommodation, employment, income maintenance and money management, the surveys of prisoners conducted by CJJI revealed that few had been helped to gain accommodation (leaving 15% of men and 13% women homeless on release) or employment or training, with no prisoners being helped into employment or training and only 2% even having had a Job Centre interview arranged by the

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CRC. The report was sceptical that the transition from prison to community was seamless and found that public protection work was ‘weak’. The report also noted that the contribution of prison staff to the process was also limited, a clear indication of the problems facing prisons in this period as set out in Chap. 4. The report on longer term prisoners published in June 2017, some 26 months from the introduction of TTG provided for by the CRCs, found that although there was more time for through-the-gate work, the CRCs were ‘making little difference to their prospects on release’. Indeed, the longer term prisoners were ‘no better served than their more transient fellow prisoners. The overall picture was bleak. If Through-the-gate services were removed tomorrow, in our view the impact on the resettlement of prisoners would be negligible’ (HMIPr June 2017a: 3). The report went on to note that the CRCs were focusing their efforts on meeting their contractual targets (e.g. in producing written resettlement plans) rather than actually making a difference to the lives of those they are meant to be helping, partly because ‘responding to the needs of prisoners received much less attention’ because ‘not specified clearly in CRC contracts, and good, persistent work was not incentivised or rewarded sufficiently’. TTG services were also not well enough integrated into prisons and there is much more that ‘prisons should do to support resettlement, including properly screening for prisoners’ needs, assessing risks of harm, and planning and delivering rehabilitative work where needed’, but ‘wider problems within the prison system’ meant that ‘prisoners rarely receive effective rehabilitation while detained’. Furthermore the problems they faced—of mental illness and addiction—rarely met with a joined up response between treatment in custody and in the community. Little timely help was provided by the CRCs with accommodation and employment and training, with a significant number of prisoners being released into homelessness and unemployment and with benefits claims not being sorted out. Much help given was based on signposting only rather than actually finding accommodation or jobs. The problems of employment were not exclusively due to the lack of intervention on the part of the CRC but came from wider prison issues of prisoners unable to undertake training that they felt would help.

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The 2017 report noted in summary that ‘None of the early hopes for Through-the-Gate have been realised. The gap between aspiration and reality is so great, that we wonder whether there is any prospect that these services will deliver the desired impact on rates of reoffending’ (HMIPr June 2017a: 3). Finally, in the 2016–2017 annual report, published in December 2017, the HMIPr summarised the TTG situation: In those cases we inspected, only a handful of individuals had received help with housing, jobs or addiction, let alone managing debt or getting back into education or training. What is more one out of two people were released without a roof over their heads. These services are underfunded and simply not operating as expected. Instead CRCs are too often doing little more than signposting and form-filling. Apart from Wales and Durham, we find that CRCs we have inspected are making little difference to the prospects of individuals upon release and yet this work is so important in breaking the cycle. (HMIPr December 2017b: 17)

How did the three governments that followed, between 2017 and March 2020, respond to the challenge and with what results? The second May government responded to the criticisms by developing an Enhanced Specification for Through-the-Gate Services (ETTG), to ‘better cater to service users’ with £22m of funding being made available each year for three years. The process began with a ‘mobilisation period’ running from October 2018 to March 2019 followed by full implementation from April 2019. As part of the programme, 500 extra staff were recruited by the CRCs. The programme targeted both resettlement and non-resettlement prisons. A process evaluation was commissioned of the early days of the ETTG with the expectation that this would be followed by a further evaluation at a later date (MOJ/Fahy and Engingsoy February 2020). The process evaluation was published in 2020 by the MOJ. It examined mostly by means of staff interviews: what had changed due to the enhanced TTG specification and why; what was working well, and what the main challenges were; and tried to discover to what extent stakeholders perceived that there had been an improvement of the TTG service.

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The process evaluation was conducted from November 2019 to March 2020 although the planned second study was cancelled because of the new coronavirus outbreak. The extant study examined 8 non-­resettlement and 12 resettlement prisons and conducted 165 staff interviews. The study noted that the ETTG occurred in a context framed by a number of broader factors including within prisons, the introduction of OMiC and the key worker scheme (see Chap. 4), the announcement of plans to merge NPS and the CRCs leading to job uncertainty (see the first section of this chapter), high staff turnover with the difficulties with the CRCs making recruitment difficult and many years of probation and prison underfunding and outwith prisons, reductions in housing stocks and changes to social care making service delivery more difficult. The evaluation found that the enhanced funding provided by ETTG translated into having more staff leading to decreased caseloads, more time to work on a one-to-one basis with service users and increased partnership working, both inside and outside the prison, which consequently improved service delivery. The study also found that the additional resources allowed for less signposting and more specialist support. For example in eight establishments, CRC teams were offering more specialist support for needs such as debt, employability, health promotion or relationships, rather than signposting to outside agencies as before. The changes also improved continuity of the through-the-gate services. In eight prisons, the disconnect between prison and community had narrowed with the introduction of the ETTG specification. There was also a move to bespoke services through an increased level of support and better resettlement planning and greater flexibility. But a number of challenges remained including lack of service user engagement, obstacles thrown up by CRC boundaries causing a discrepancy between release areas and available support, limited data sharing between IT systems, and cohort-specific challenges making the time available to engage with clients limited, for example, with recalled prisoners. Short custodial sentence prisoners are specifically mentioned here as setting up ‘an important barrier to fully accessing resettlement services’ (MOJ/Fahy and Eningsoy February 2020: 23) not only because the TTG systems lacked agility but also because some external processes took time, for example, opening a bank account could take six weeks and ‘local

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authorities ask for housing applications to be submitted within 56 days of a service user’s release date’ (ibid.: 23). Further in local prisons, there may be many such prisoners requiring speedy interventions beyond the capability of the number of staff employed. You just haven’t got scope to deliver […] I mean the majority – our cohort at the moment, 70 per cent I’d say, less than 12 weeks. And if you think a lot of resettlement processes are booked up to 12 weeks pre-release. But you just don’t  – you’re not afforded that 12 weeks period timeframe to work with individuals and I think we’re seeing more and more people coming in on weeks, two weeks, three weeks, four weeks. (Local TTG staff member quoted by the report, ibid.: 23)

Other complications blur release dates including transfers, parole releases, remand cases, Home Detention Curfews (HDC), foreign nationals awaiting deportation and life or indeterminate sentences that do not have a set release date. When the study examined outcomes they found that with regard to accommodation, no impact was recorded (the proportion in settled accommodation was about 50%) and a decrease was recorded of released prisoners being in employment after six weeks of release (from 14% to 12%) (MOJ/Fahy and Engingsoy February 2020: 26–28). HMIPr assessed the performance of the CRCs regarding TTG services mostly prior to the introduction of ETTG (HMIPr October 2019c). They found that: Delivery of resettlement activity was generally disappointing, with less than two-thirds of resettlement services delivered in line with individual’s priority resettlement needs. …In seven percent of cases, the Through-the-­ Gate teams found new temporary accommodation for individuals, but about one in four (24 per cent) were released without an address to go to. In three out of five (60 per cent) cases, there was effective coordination with other services delivered in the prison, and effective communication with local services in the community. (HMIPr October 2019c: 8 and 34)

A further window on this matter was provided, in relation to women prisoners by the IMB thematic report on women’s resettlement (IMB

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August 2020). This report noted that on the basis of interviews with 78 women offenders, 58% were serving less than six months, with 25% losing their homes due to imprisonment and 12% already homeless. Forty-­ five per cent indicated they were homeless on release and an additional 14% only had a temporary address. Of the women who had no home to go to or only a temporary address, 23% said they did not know where they would go and a further 40% said they would be homeless. Twelve prisoners (28%) intended to stay with friends or family and 9% assumed they would find some form of temporary accommodation. Sixty per cent said they had received help to prepare for release and when asked to rate the quality of the help received over half rated this help of no or little value and only just over 20% rated it good or very good. Between 2015 and March 2020, before the new coronavirus affected prisons, we must conclude that although fundamental problems had been known about at least by 2017, and although some efforts were made under the ETTG programme to improve the situation by yet again injecting more money into the CRCs and clarifying the service specification, and taking into account that the failure of through-the-gate support was not entirely due to the inadequacies of the CRCs, but also due to the inadequacies of prisons in relation to staffing, provision and conditions, before the new coronavirus struck, little real progress had been made radically to improve the effectiveness of TTG service intervention. This situation demonstrated government failure to deal with a recognised problem, contributed to the harsh treatment of offenders and was a direct result of the (unsuccessful) attempt, under the impact of austerity policies, to reduce public spending, by outsourcing.

 overnment Attempts to Improve G the Community Sentence/Suspended Sentence Order Practice We now turn from mostly reactive to a more proactive Conservative government interventions and examine policy on the community penalties and suspended sentence orders in the 2015–2020 period. The

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interventions dealt with here may have been more proactive but were not original in that the direction taken tended to follow the same formula as the Coalition government, that is, to emphasise punishment through incapacitation. The Coalition government policy on the nature of COs/SSOs, partly by intent and partly by effect, impelled COs and SSOs towards being punitive, ‘smarter’ and more credible. The Coalition attempted to make this aspect of probation work more punitive by • extending the range of punitive requirements (by adding a foreign travel prohibition and an alcohol abstinence requirement), • increasing the daily and overall maximum duration of curfews, • allowing the SSOs to be imposed alone again, as well in combination with CO requirements, • extending the period of imprisonment that could be suspended (from 28 days to 51 weeks, to 14 days to 2 years), • increasing the maximum level of fines in magistrates’ courts, • allowing electronic monitoring to become a generalised technique to ensure compliance with any CO and SSO requirement, • introducing a duty on courts to include at least one punitive requirement when imposing a CO/SSO, • tightening breach proceedings, • making provision for monitoring offenders’ locations (to allow for GPS tagging) and • tightening up fine enforcement (Skinns 2016: particularly Chapter Six). The debate over and then the introduction of the TR reforms via the Rehabilitation of Offenders Act 2014 contributed to the on-going erosion of probation service credibility with courts and failed to stop the clear sentencing trend away from COs and towards the greater use of SSOs, fines and immediate custody. Table 2 in Chap. 3 shows that for all convicted offenders between 2010 and 2015, the proportion given a CO declined from 13.7% to 9.1% and there was a growth in the use of SSOs (from 3.3% to 4.4%, respectively) and the fine (from 67.1% to 70.7%, respectively). Table 2 in Chap. 3 also reveals a significant decline in the proportional use of COs orders for indictable offenders (from 18.3% in

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2010 to 11.5% in 2015) and a growth in the use of SSOs (from 8.6% to 11.5%, respectively) and custody (from 71.0% to 73.7%, respectively). Conservative government policies in 2015–2020 tried to further extend toughness or punitiveness and smartness and thereby their credibility, whilst also placing some emphasis on reform. I will critically examine what was done by taking the career of particular requirements to assess the success or otherwise of the implementation strategy.

Tougher The need for robust or tough community penalties is a theme that permeates all the statements of the Conservative governments of the 2015–2020 period, their Party general election manifestos, and the statements of the various Ministers of Justice of the period and, more recently, the Sentencing White Paper (MOJ September 2020a, 2020b). ‘Toughness’ has at least two meanings in the Conservative discourse of the period (see Chap. 2) and is closely linked to the two of the other themes, discussed here, ‘smartness’ and credibility. A tough measure is a punitive measure, a theme favoured by Conservative thinking in this period and for some time. Punitiveness means, firstly, having an individual or general deterrent impact, as exemplified by UPW, fines and curfews, which all have in common onerous and unpleasant commitments, which the offender or anyone witnessing the offender’s treatment might want to avoid. Deterrence has been, arguably, less favoured in Conservative thinking in the 2015–2020 period. Punitiveness, secondly, means having an incapacitating impact, that is, one capable of rendering the offender physically unable to engage in further offending at least temporarily. UPW may be seen to have such a secondary effect, but the favourite of Conservative thinking for much of the period has been the curfew, which confines the offender to a premises for a period (their home or some other officially provided hostel), thereby probably preventing them from engaging in offending behaviour in person, at least, off the premises. I will use the career of UPW to illustrate the toughness theme, reserving curfews for the theme on smartness

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because it is with curfews that ‘smarter’ technological penal intervention has been focused. By 2015, UPW had undergone a number of transformations since legal provision was made for it by the Criminal Justice Act 1972 as a stand-alone, community service order (CSO). For much of the 1970s and early 1980s, the CSO was seen primarily as a reform-based measure (Skinns 1990). However, UPW had the potential to fulfil diverse penal aims which became increasingly focused on punishment and in this guise may be understood as the modern-day equivalent of rock breaking, or a ‘fine on time’, involving low skilled and physically demanding work in gangs. This trend is also evident in how the CSO has been re-branded as the ‘community punishment order’ (in 2000 by the Criminal Justice and Court Services Act) and ‘unpaid work’ (in 2005). This has been an all-­ party drive with the Labour government, in 2008, adding the compulsion to wear high visibility ‘community payback’ tabards and provision for local communities to be enabled to define UPW tasks. The Coalition government, treating changes to UPW as operational matters not requiring legislation, made a number of changes, all tending towards punitiveness, including offenders starting work within one week of sentence, the enrolment of unemployed offenders on intensive schemes working for a minimum of 28 hours per week, longer working days for all, all very much in line with the expressions of intent by the MOJ in December 2010 to make UPW more intensive and immediate as well as making the tasks performed ‘hard’ and subjecting offenders to ‘the tough discipline of regular working hours’ (MOJ December 2010: 9). From the spring of 2015, UPW was outsourced in entirety to the CRCs (HMIPr Annual Report 2016-17 December  2017b: 18) and the contract specifications and the Community Payback Manual (MOJ/NOMS March 2015 as quoted by HMIPr January 2016) left little room for anything, but UPW as a punitive provision. The punitive nature of UPW in 2015 was captured in snapshot by the HMI Probation thematic report of 2016 (HMIPr January 2016). This report noted that about two-thirds of all COs imposed by the courts in 2014 had an UPW requirement and that for more than half of the UPW-­ based COs, the UPW was the only requirement. This report noted that allocation within the seven-day target was the norm (even if there

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remained a longer gap between sentence and first work actually undertaken). It also found that offenders were required to work seven-hour days (with the unemployed required to do a 28-hour week) and that most work (66–75%) tended to be in group projects rather than individual placements, based on mainly grounds maintenance/horticultural tasks. Most UPW managers and offenders on the orders saw UPW as punitive and breach procedures were speedily engaged and based on the recording of work done. Consistent with this punitive stance, there was relatively little priority or attention paid to integrating the UPW with a sentence plan and the individual needs of offenders. There was some blunting of the punitive overall message by organisational difficulties in terms of actual work starts, keeping to the 7-hour working day/28-hour working week, the recording of work undertaken with inspectors not being convinced that ‘all hours were used constructively’ and some poor management of non-attendance. There was some incidental and limited upskilling for some offenders through the use of tools and techniques (HMIPr January 2016). The practice of UPW as punitive continued into 2017 with the HMIPr Annual Report finding that UPW ‘was disconnected from meaningful offender engagement and its rehabilitation potential was neglected’ (2017a: 18) (HMIPr Annual Report 2016–2017: 17 and 68). The MOJ Unpaid work Specification document (MOJ October 2017) listed once again the main aims of UPW with punishment taking priority, followed by reparation, public protection, and finally, reduced reoffending and went on to note, as an afterthought, that ‘for some offenders there are also rehabilitative benefits, as UPW can provide an opportunity to develop life and vocational skills that reduce the risk of reoffending’ (HMIPr 2017a: 4). Unusually, the 2017–18 HMIPr Annual Report is not available on the website, but Glenys Stacey, then Chief Inspector of Probation, gave evidence to the House of Commons Justice Select Committee in 2018. She expressed concerns about the continuing meaningless character of UPW (Stacey oral evidence April 2018 and by Justice Committee 2018),and the Justice Select committee went on to express the view that UPW should contribute to the local community and be linked to education

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and training (House of Commons Justice Committee 22/06/2018b: Paras 170 and 172). However, a different note is sounded by two probation reports in 2019, perhaps indicative of a new trend and serving as a reminder that government intentions expressed through policies can, sometimes, fail to gain traction amongst on the ground staff and may even be resisted or that the government had at last attended to the comments of the Chief Inspector of Probation and the Justice Select Committee concerning the failure of UPW to be anything other than punitive. Both the Annual Report 2018–2019 (March 2019) and the 2018–2019 summary of inspections report (HMIPr October 2019c) noted some interesting changes. The annual report noted that although the UPW provided by the CRCs was ‘often unconnected with other work with the offender’ (March 2019: 11), it was ‘being well delivered’ (March 2019: 61). The main reason for this view seems to have been CRC work in this area had improved and had done so by maximising self-development opportunities for offenders. To be clear, the maximisation of offender self-­ development takes UPW well away from being a purely punitive measure. Similarly, the HMIPr report summary for 2018–2019 found that UPW was one of the strengths of CRC work and that ‘overall UPW was being delivered safely and effectively’ (October 2019c: 7). Although in the overall assessment, CRC work came out as substandard—with only 18% of them rated as good/outstanding and the rest either requiring improvement or inadequate compared with 69% of NPS rated as good/outstanding with the rest rated as requiring improvement or inadequate, for UPW 70% of the CRCs were rated as good/outstanding and the rest as requiring improvement/inadequate. It is difficult to not form the impression that the more positive views of UPW in the 2018–2019 report resulted not from following government guidance, but precisely because they did not do this. Government policy pushing towards punitiveness, at least with regard to UPW, seems to have run into some resistance. Thus, for much of the 2015–2020 UPW has remained primarily punitive in orientation as a matter of policy. This has not met with support from HMIPr nor been put into practice by some CRCs.

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Smarter Conservative government discourse of the period also placed a very considerable value on ‘smart’ or ‘intelligent’ penal measures. The term appears to mean, in this context, to ‘think innovatively’, often but not necessarily always, by making use of various ‘new’ technologies to better manage a task. For example, ‘smart motorways’, which use different forms of technology (overhead screens, automatic number plate recognition cameras, CCTV surveillance, improved communications) to manage traffic on busy stretches of motorway (see Department of Transport 2020). The recent concerns about deaths on so-called smart motorways, where the hard shoulder has been removed, suggest that such changes are not always necessarily as smart as intended. In the case of COs and SSOs where curfew conditions are imposed, electronic monitoring (EM) clearly represents an early example of an apparently ‘smart’ penal intervention based on incapacitation, converting as it did a virtually unenforceable requirement to stay in an approved premises for a designated time-period per day, into a measure potentially enforceable through a new technology, that is, electronic tags worn by offenders and monitored remotely by the use of radio technology. The scheme operated by installing a mechanism connected to the phone on the offenders’ premises which could, during the hours of the curfew, set off an alert using the phone line to a remote monitoring station, if the radio-waves emanating from the tag on the offender were interrupted by the offender leaving the designated premises. The devices were limited to only indicating that the offender had left the designated premises, not where they were illegally located. Provision for electronic tagging to monitor free-standing curfew orders was originally made by Section 13 of the CJA 1991, but the innovation was not introduced nationally until 1999, at the same time that electronic monitoring using tags was extended to offenders released additionally early from prison by Sections 99 and 100 of the Crime and Disorder Act 1998, coming into force in 1999 and referred to as Home Detention Curfew (HDC). Electronic monitoring was able to be used as a condition of court bail by Bail Act 1976 as amended by the Criminal Justice Act

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1991. Additionally, EM has been extended to monitor migrants as a result of the Immigration Act 2016 (Para 1 Schedule 10). The Criminal Justice Act 2003 brought together all the different elements of community penalties and adopted a menu approach under the general heading of community orders. Curfews, monitored by electronic means, became one such requirement. As noted above, the curfew requirement could be imposed as the only requirement of a CO or SSO or in combination with other requirements or as a general enforcement measure across all the requirements. The use of electronic monitoring of curfews expanded both for bailed defendants and convicted offenders, from its early beginning with some 9000 defendants/offenders tagged in 1999/00 rising to 53,000 in 2004/5 (NAO February 2006:1). Some increase of the use of tagging was evident to 2013, but thereafter there has been a decrease in the number tagged at any one time from about 18,000 in 2013 to 12–13,000 in 2016–2017 (NAO July 2017a, 2017b:15). The NAO estimated that in November 2016 the approximate distribution of different groups under EM was 3% immigration, 17% HDC, 30% court bail and 50% CO/SSO with the last group able to be broken down into multiple condition (29%) and single condition CO/SSO (22%) (NAO July 2017a: 15). The contribution of Conservative governments to conventional electronic tagging was limited as it went along with an existing practice inherited from the Coalition. However, one of the clear limitations of conventional tags led to ambitions to develop the next generation based on location monitoring. This plugged into the notion of ‘smart’ penal measures. Successful location monitoring depends on the availability of a global positioning system (GPS) adaptable to being used as a tag and being accurate enough to pinpoint the offenders’ on-going location, even in difficult conditions, as well as such a system offering benefits like cost savings on conventional tagging and/or more effective enforcement. The ambition to use location monitoring goes back to the Labour government of the early 2000s, with the first pilot scheme for GPS tags taking place in 2004–2006 with limited success (Travis 25/02/2016; Shute 2007; MOJ/Eaton and Mews 2019). It was an ambition expressed in the MOJ paper (December 2010: 17–18), and a programme to develop a ‘bespoke’ GPS tag was launched by the MOJ in 2011, with an expected

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roll-out date of November 2013. The main aims of the scheme were to reduce tagging costs and provide location monitoring as well as enforcement of exclusion zones. The development of a ‘bespoke’ GPS tag as outlined in 2011 was still on-going when it was abandoned in 2016 by the Cameron Conservative government, with the MOJ terminating its contract with the company involved and reverting to requesting bids from companies for off-the-­ shelf and proven devices. At the same time, a pilot scheme was set up with a view to assessing the impact of such a scheme which, if it was successful, as the then PM, David Cameron, said in parliament, in February 2016, was to be ‘rolled out right across the country before the end of the parliament’. Dominic Raab, at the time Under-secretary of State for Civil Liberties and Human Rights, apparently indicated that the 2016 location monitoring pilot scheme would be independently evaluated before a decision would be taken as to its use (quoted by Travis 25/02/2016). The pilot began in October 2016 and ran to March 2018 and involved eight police force areas across England and covered a range of ‘criminal justice pathways’ including community order requirements. In total, 586 tagged offenders were included in the pilot but with only 17 of these tagged as a condition of a community order and only 7 tagged as a requirement of a suspended sentence order (the rest were court-imposed bail 220, HDC 87, release after recall to prison 113, licence variation 60 and parole board conditions 82). The process evaluation used qualitative methods and examined the views and experiences of stakeholders, delivery partners and offenders. Before the process evaluation results were published, the House of Commons Public Accounts Committee reported on the development of location monitoring in January 2018. Their report was scathing. I quote their summary in full: ‘Offender-monitoring tags can be a cost-effective alternative to custodial sentences, but the MOJ‘s delivery of the new generation of electronic monitoring programme so far has been fundamentally flawed. The programme has so far been a catastrophic waste of public money which has failed to deliver the intended benefits’. This was so because:

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‘The MOJ pressed ahead with the programme without clear evidence that it was to be operated or that it was deliverable. Its selection of a high-risk approach to procure the new electronic tags, and its poor management of both the programme and potential suppliers, exacerbated these problems. The MOJ has ultimately wasted a huge amount of time and taxpayers’ money to end up with an approach which uses the same type of tags and supplier it had when the programme started. …This situation should not have been allowed to happen in the first place. We do not expect to see similar failings in any of the other 16 major projects currently being undertaken by the MOJ’ (House of Commons Public Accounts Committee January 2018 ‘Summary’). The parallels with the failure to provide a bespoke, timely detect and trace coronavirus app are clear.

The process evaluation results were published in February 2019 and were generally positive, albeit within the limitations of a study of this kind, in that offenders felt that tagging assisted them with compliance, although tagging did not prevent some non-compliance associated with entering exclusion zones, not charging the tag or equipment, not abiding by curfew requirements and tag removal. Offenders were critical of the tag’s obtrusive nature and felt that it detracted from their mental well-­ being. Partners and stakeholders found tags helped with offender management, provided support for rehabilitation, contributed to risk management, helped with recall decisions and provided evidence to exonerate or incriminate the wearer in crime. But some issues did arise with partners, particularly over the rushed process associated with setting up the trials and lack of adequate staffing and communication difficulties between monitoring partners (MOJ/Kerr et al. 2019, no month). No impact evaluation of the pilot has been published. Nevertheless, the national roll-out of the scheme of GPS tags was announced by David Gauke (MOJ Press Release 16/02/2019a), at the same time as the publication of the process evaluation results. By then, according to David Gauke, the roll-out had already begun in three regions (NW, Midlands and NE) with other areas due to go live in the coming months. Whatever the merits or otherwise of location monitoring, a number of critical comments may be made about its development in England and

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Wales by the MOJ, in the 2016–2018 period. Firstly, development of the location monitoring tag had not been cost-effective taking into account the actual costs (in the order of £130m) and the inflated estimates of savings made in the first place. Secondly, the way the development was handled meant that although some sort of device was eventually made available, it represented ‘yesterday’s technology’ and is likely to be rapidly replaced (at yet more cost) by what is known in the USA as outreach smartphone monitoring (OSM) which can monitor location and blood alcohol levels, allow for communication with the offender if violations occur, provide reminders about court appearances and appointments and offer incentives and sanctions (Webster 22/03/2017). Thirdly, the basis of the penal policy-making here rested on a far from firm evidence base. The process evaluation was available, but no published impact evaluation has yet been made available and we (and they) do not know how well this pilot worked to protect the public, incapacitate offenders, especially as only 24 offenders in the sample were subject to CO or SSO requirements. Furthermore, the development of GPS monitoring has a number of limitations in common with EM more generally. Firstly, the competence or otherwise of the MOJ to manage large commercial contracts has been questioned by various bodies at different times and in relation to different areas. Regarding EM the matter came to a head in 2013–2014 when it was found that the two companies contracted in 2005 to provide EM had overcharged for the service, a problem only detected after they applied for renewal of the contracts. They subsequently agreed to repay some £180m (see Ford 25/06/2015). Secondly, EM may be seen to have contributed to the dispersal of, if not discipline, control. It has not been used as an alternative to custody but as a substitute for lower tariff non-­ custodial sentences and unlike the Swedish case had not contributed to a decrease in prison populations. Thirdly, the nature of EM presents a potential threat to traditional probation supervision. To be clear, EM, unless combined with other kinds of interventions, does not work with the offender to deal with alcohol and drug problems or mental health issues, it simply monitors the behaviour of the subject and notes and responds to contraventions of the rules. This means that it is very different from traditional probation supervision which depends on forming a relation and working with the offender to enhance desistance.

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This general theme of ‘smartness’ was taken up by the then Minister of Justice in the Johnson administrations. Robert Buckland appeared via video link at the Justice Committee on 7 April 2020 and indicated that the message of the coronavirus ‘was teaching us that technology was something to embrace’ (House of Commons Justice Select Committee 07/04/2020). Buckland, like Gauke, saw what they both refer to as new technologies can be adapted much further for penal purposes and combined with monitoring and incapacitation. The emphasis on smart measures has been closely allied to punitiveness and taken the distinctive form of incapacitation, placing as it does an emphasis on curfews. It has remained a resilient ambition, even in the face of setbacks and failures and thus a major influence on punitive trends in the period.

Reformative In contrast, although successive Conservative governments have done much to polish their rhetorical reform credentials, little has been achieved in the 2015–2020 period. Ministers Michael Gove and Liz Truss made a great play on the need for improving the reformative features of prisons (without much success), as we saw in Chap. 4. Subsequent incumbents of the role of Minister of Justice have also spoken about rehabilitation and probation (see, e.g. David Lidington July 2017). But the rehabilitation function of probation has been trebly relegated. In the first place, prison trumps probation in ministerial attention, public statements and policy intervention, especially in the circumstances of the burgeoning prison crisis of the 2015–2020 period. In the second place, successive Conservative governments have prioritised public protection and punishment and its familiar, incapacitation, over rehabilitation whether in prions or probation. And finally, ironically, but almost inevitably, the ‘Transforming Rehabilitation’ agenda undermined the status of probation, the traditional home of rehabilitation, with both the courts and the public. As we noted in Chap. 3, an attempt was made to revive the fortunes of treatment practice by means of the ‘community sentence treatment requirement protocol’ (CSTRP) in late 2017, which was focused on just

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five areas and ran for about six months, and attempted to increase court use of the treatment requirements and thereby diminish the use of short prison sentences, develop treatment facilities, promote better partnership working, develop judicial awareness of mental health issues and encourage more timely sentencing. A process evaluation of the pilot was conducted (NHS/MOJ June 2019). The inherent weaknesses of the study was linked to it being a process not an impact evaluation and meant that it was unable to conclude ‘whether the use of CSTRs increased after the protocol was introduced’ (June 2019: 24) and indeed whether the provision of treatment improved outcomes for offenders. The NHS Long-Term Plan (January 2019) indicated, rather vaguely, that: We will build on this (CSTR) by expanding provision to more women offenders, short-term offenders, offenders with a learning disability and those with mental health and additional requirements. (page 118)

Thus, the key exception to the general trend towards punitiveness regarding community penalties, the CSTRP, seems to have had a limited impact in the pilot areas only, with extension of the pilot promised, but not delivered, making it quite clear that rehabilitation is low down in the governments’ priorities. Table 5.1 summarises the internal critique of government policy on probation. Successive Conservative governments engaged in four main areas of penal policy with regard to ‘probation’. Firstly, governments of the period wrestled with the legacy of the outsourcing aspect of the Transforming Rehabilitation (TR) agenda, with a resolution only emerging in 2020, and then constituting not a break with the ideological fixation with outsourcing, but a temporary, curtailment ascribed to the novel coronavirus pandemic and only to be effected by the end of June 2021. Secondly, governments also wrestled with the legacy of the TR agenda in relation to the recall debacle associated with the imposition of year-long licence supervision requirements on short sentence prisoners. This matter was not satisfactorily resolved, by the abolition of short prison sentences or the abandonment of the mandatory conditions or by the new model for probation by 2020. Thirdly, the government response to the crisis of

1. Response to the probation outsourcing disaster.

Reactive. Gradual and reluctant realisation that failure could not be denied whilst defending the principle of outsourcing.

Nature of the policy

Sustained the notions of austerity and outsourcing by retaining outsourcing to the very last moment and by denying that the problem was in principle not just in practice. Generally contributed to the harsher treatment of offenders.

External critique: impact on the material and Implications for the moral aspects of A-O-P penal policy the penal crisis package

Penal philosophy: Prevarication Consistent, given and delay the antipathy to contributed state intervention significantly to and the assumed the penal crisis superiority of by adding to private provision the burden on but unable to prisons and thus provide a further ‘second chance’ undermining for offenders. the credibility Implementation: of the NPS. Not fully achieved. Impact: Positive impacts limited/ negative impacts many, eventually forced a qualified re-nationalisation.

Internal critique: relation to penal philosophy, implementation and impact

Table 5.1  Summary of the internal and external critique of the Conservative governments’ probation policies 2015–2020

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2. Response to the recall disaster.

Recognised the problem of the growth in recalls to prison of short prison sentence offenders but did not act to alleviate the issue.

Penal philosophy: Consistent by maintaining a punitive stance, but inconsistent with notions of providing a ‘second chance’ Implementation: Fully implemented but no actions were taken to ameliorate the attendant problems. Impact: Sustained prison ‘revolving door’.

(continued)

The failure to Promoted austerity take action on by defending to the recognised the last the issue added to outsourcing of the the material supervision of crisis by many of these maximising the offenders and costs of prisons punishment by and retaining the short undermining sentence of the legitimacy imprisonment at of both prisons any cost and and probation continuing to insist and in effect on compulsory sanctioning the licence conditions revolving door for this type of of prisons for prisoner. this group of Generally offenders. contributed to the harsh treatment of offenders. 5 Probation 

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3. Response to the through-­the-­gate services disaster

Table 5.1 (continued)

Nature of the policy

Reactive. Again recognised the problem but took little by the way of effective action to deal with it until the very last moment.

Nature of the policy Penal philosophy: Consistent, in defence of privatisation but inconsistent with providing a ‘second chance’. Implementation: Limited Impact: Negative Internal critique: relation to penal philosophy, implementation and impact

Internal critique: relation to penal philosophy, implementation and impact

Contributed to Promoted austerity material crisis by defending to by maximising the last the revolving outsourcing and door effect of generally the prison and contributed to the undermined harsh treatment of any legitimacy offenders. the CRCs had with courts and offenders. External critique Implications for the A-O-P penal policy package

External critique: impact on the material and Implications for the moral aspects of A-O-P penal policy the penal crisis package

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4. Government Active. Make community Penal philosophy: Helped continue initiatives to improve sentences tougher, smarter, Consistent, given its the penal crisis the effectiveness of more credible and reformative. insistence on by over-­ community penalties punitivism and emphasising relegation, in the prison and practice, of under-­playing rehabilitation. the role of Implementation: community The punitive penalties. character of UPW Limited efforts was consistently to revive maintained. treatment Efforts were made requirements. to extend the use of incapacitative tags. Limited development of treatment requirements. Impact: Tag development slow and costly. The extension of treatment requirements very limited.

Overwhelmingly emphasised punishment.

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through-the-gate services has not satisfactorily resolved the issue. Finally, the drive to innovate COs and SSOs, to make them tougher, smarter, more reformative and thereby more credible, had not progressed very far by 2020, with policy changes being made very slowly and/or ineffectually but not detracting from the overall punitive shift. The emergent new probation model holds out some hope of a move away from negative incarceration to more effective rehabilitative service.

Probation—External Critique Table 5.1 also summaries the key points of the external critique of probation policy.

Material Crisis: 2015–2020 The material crisis of probation has deepened. Net expenditure for NOMS in 2014–2015 was £2.85b down 24% from 2010/11. Net expenditure for NOMs/HMPPS then rose to £4.2b by 2019–2020 an increase of some 47%. There was an increase in net expenditure between 2010/11 and 2019/20 of 12% (see Table 12, Chap. 4). However, the rise in expenditure has to be understood in the context of substantial sums being spent not on then current functioning, but on transformation programmes in prisons that had few if any positive effects (see Chap. 4) and significant problems within the probation sector, specifically the financial and effectiveness problems of the CRCs alluded to above. In fact, net expenditure per probation client in England and Wales reduced by 40% between 2003/4 and 2018/19, from £5900 to £3550 (see Table 4.3 in Chap. 4). Workloads in probations as measured by ‘starts’, despite the shifts in funding and organisation, have hardly changed, given that the 18% decrease in offenders placed on COs and SSOs (2009/10 and 2014/15) has been compensated for by the rise in post-release supervision and CO and SSO order duration (data on offenders on the books at the end of the year suggests an increase from 2009/10 to 2014/15 of 3%, but a slight

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decrease between 2014/15 and 2019/20 of 6% and an overall decrease between 2009/10 and 2019/20 of 3%; see Table 4.3, Chap. 4). However, this masks the distribution of offenders between the NPS and the CRCs which remained skewed towards NPS from the start causing the destabilising imbalance which led to radical changes in staffing in the CRCs early on, their immediate and on-going financial incontinence and eventually their elimination. It is not possible to assess the staffing situation post-2015 as the CRCs were not required to produce staff data and did not beyond 2015. Staffing for the probation trusts, and then the NPS, seems to have generally decreased from a total of 18,655  in March 2011 to 16,297  in March 2013, before the TR agenda reforms, a decrease of 13%. The number of total staff working for the NPS after the division to create the CRCs was about 8000 (some 8000 staff were transferred to the CRCs). By March 2020, the NPS employed a total of 9414 staff, demonstrating an increase of about 12%, not therefore capable of keeping pace with the workload, given that the split between the NPS and CRCs had not worked out to the 70:30 division (CRC:NPS) as intended, with more work accruing to the NPS. The situation in the CRCs suggests that the transfer from the NPS to the CRCs was often far from voluntary and job security very low, with cuts in the workforce being introduced quite early on and continuing with the fresh rounds of concern about their financing and culminating in the outright, perhaps permanent, transfer back to the NPS in 2020 (see Table 4.3, Chap. 4). Infrastructure: From the start of the implementation of the TR reforms, the NPS retained largely its existing premises. However, the newly created CRCs had to not only create their organisations, but also establish bases in the regions they had been allocated. This often meant that there were infrastructural limitations as displayed by CRC staff attempting to hold meetings with offenders in unsuitable places and engaging in phone supervisions long before the new coronavirus made such meetings a necessity. Overall, a diminishing budget spent on actual functioning, combined with a reduction in probation staff, went hand-in-hand with the chaos and divisiveness of part-privatisation. Little wonder that the material crisis in probation was exacerbated especially as the government was

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markedly unwilling to acknowledge the fundamental funding issues and take anything other than limited remedial action to deal with the intransigent problems.

Moral Crisis The analysis here follows the examination of the aspects of penal crisis set out in Chap. 2 and assesses the extent to which the probation system is seen to be procedurally just by three key audiences (the public, probation staff and probation users), as well as considering whether policy has diminished the fetishisation of the prison, enabled greater accountability, improved the process of penal policy-making and generally contributed to justice. Public: CSEW data for 2017–2018 reveals that although some increase in public confidence in the effectiveness of probation to prevent reoffending is evident (increasing from 28% of people expressing confidence in 2014/15 to 31% of people expressing confidence in 2017/18), the majority of people continued to either not know or thought that probation was ineffective at preventing reoffending (see Table 8, Chap. 3). Staff: Table 9 in Chap. 3 indicates that evidence from the Civil Service People Survey 2020 (not including staff working in the CRCs) shows that NPS staff compared with their civil service colleagues in 2020 felt less involved in the decision-making affecting their work (QB04 50/64%: QB05 68/81 and QB11 78/86) and less fairly (QB26/27 77/84) or respectfully (QB47 85/89) treated. Twelve per cent of NPS staff in 2020 felt that they had experienced discrimination, compared with 8% of all civil servants. Comparing 2020 with 2015, for NPS staff, a feeling of being involved in decision-making had increased (QB04 50/38%; QB05 68/59%; QB11 78/73%). The proportions who felt that they were treated fairly (QB25/26 77/75%)or respectfully (QB26/27 85/86%) remained similar. Twelve per cent of NPS staff in 2020 considered that they had experienced discrimination, compared with 14% in 2015. However, the limitations of the data need to be acknowledged here— non-response rates (about one-third of civil servant failed to participate),

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the meaningfulness of the questions of surveys of this kind and fear of consequences of offering too negative a picture, all detract from the validity of the findings. So too does the lack of inclusion of CRC staff. Alternative sources of evidence on this matter are limited, especially regarding staff in the CRCs, a matter noted, regretted and the subject of a recommendation by the House of Commons Justice Select Committee (22/06/2018b: Para 119), that does not seem to have produced a response. Probation users: Unlike HMIP, HMIPr do not undertake a systematic survey of the experiences of their users on an annual basis, greatly limiting the material available to assess this matter. Probation reforms have expressed rather than limited the official obsession with the prison. No clear improvements in accountability of services have been introduced and probation policy made by successive Conservative governments has not benefitted from any kind of critical overview. On balance, the actions taken by governments in the 2015–2020 period have not improved the justness of the system and have exacerbated the penal crisis.

Conclusion In summary, the four policy initiatives engaged by successive Conservative governments in the 2015–2020 period reveal a track record of prevarication and delay which have had variable effects, sometimes preserving elements of Conservative ideology at the expense of dealing with glaring problems (e.g. concerning the privatisation of probation, licence recall and through-the-gate support, and overall the rehabilitation of the reputation of the probation service with courts) and at other times simply blocking the rolling out of policies to which they were firmly attached (e.g. on the issue of the roll-out of GPS tagging). Nevertheless, the overall direction of policy has been to promote the A-O-P (austerity, outsourcing and punishment) penal policy package and thus exacerbate the penal crisis, by disrupting the organisation and undermining the reputation of the probation service whilst effecting little by the way of new effective penalties and contributing very little either to the improved resettlement of prisoners or to the rehabilitation of prisoners on licence and offenders

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on community orders. The changes added little, if anything, to the functioning of justice. Time will tell whether the new ‘dynamic framework’ for probation, announced in March 2020 and launched in June 2020 with the first contracts being announced in May 2021, will enable a solution to the crisis it faces (Webster 21/05/2021). The net direction of government action on probation has been to further promote a penal policy package based on austerity and punishment and a stubborn defence of outsourcing to the very last. In the next Chap. 6 I examine bias and discrimination in the penal system and its impact on the legitimacy of the system.

References Buckland, Robert (11/06/2020) Statement to House of Commons @ https:// www.parliament.uk/business/news/2020/june/statement-­probation-­services/ Criminal Justice Joint Inspectorate (October 2016) An inspection of through-­ the-­gate resettlement services for short-term prisoners @ https://www.justiceinspectorates.gov.uk/cjji/inspections/throughthegate2016/ Dearden, (18/02/2019) ‘Short prison sentences of less than 6 months should be abolished, says justice minister.’ The Independent. Department of Transport (2020) Smart Motorway Safety @ https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/ file/873000/smart-­motorway-­safety-­evidence-­stocktake-­and-­action-­plan.pdf Ford, M (25/06/2015) ‘The on-going electronic tagging scandal,’ Centre for Crime and Justice Studies @ https://www.crimeandjustice.org.uk/resources/ ongoing-­electronic-­tagging-­scandal Gayle, D (26/05/2018) ‘“Short prison sentences do not work,” says Justice Secretary’, The Guardian. Grierson, J (27/07/2018) ‘Private probation companies to have contracts ended early,’ The Guardian. Grierson, J (16/05/2019) ‘Probation will be renationalised after disastrous Grayling reforms,’ The Guardian. Grierson, J (04/06/2020a) ‘Ministers considering renationalising England and Wales probation service,’ The Guardian. Grierson, J (11/06/2020b) ‘Probation services to return to public control after Grayling disasters,’ The Guardian.

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HM Inspectorate of Probation (June 2017a) An inspection of through-the-gate resettlement services for prisoners serving 12 months or more at https:// www.justiceinspectorates.gov.uk/cjji/inspections/throughthegate2/ HM Inspectorate of Probation (December 2017b) Annual Report 2016-17 @ https://www.justiceinspectorates.gov.uk/hmiprobation/wp-­content/uploads/ sites/5/2017/12/HMI-­Probation-­Annual-­Report-­2017lowres-­1.pdf HM Inspectorate of Probation (March 2019a) Report of the Chief Inspector @ https://www.justiceinspectorates.gov.uk/hmiprobation/wp-­content/uploads/ sites/5/2019/03/HMI-­Probation-­Chief-­Inspectors-­Report.pdf ). HM Inspectorate of Probation (May 2019b) Thematic Inspection: The post-­ release supervision of short sentence prisoners @ https://www.justiceinspectorates.gov.uk/hmiprobation/wp-­c ontent/uploads/sites/5/2019/05/ Post-­release-­supervision-­inspection-­report.pdf HM Inspectorate of Probation (October 2019c) 2018-19 Inspection of probation services: a summary report @ https://www.justiceinspectorates.gov.uk/ hmiprobation/wp-­content/uploads/sites/5/2019/10/2018-­19-­probation-­ inspections-­summary.pdf HM Prisons and Probation Service (June 2020a) Update to the Draft Target Operating Model for Probation Services in England and Wales @ HM Inspectorate of Probation (HMIPr) (January 2017) Thematic Inspection: The delivery of unpaid work @ https://www.justiceinspectorates.gov.uk/ hmiprobation/wp-­c ontent/uploads/sites/5/2016/01/Unpaid-­Work-­ Thematic-­report.pdf House of Commons Justice Select Committee (17/04/2018a) Video: Glenys Stacey’s evidence @ https://www.parliamentlive.tv/Event/Index/2f0a047f-­6 ae5-­4571-­8782-­6a045c589c24 House of Commons Justice Select Committee (22/06/2018b) Transforming Rehabilitation @ https://publications.parliament.uk/pa/cm201719/cmselect/cmjust/482/48208.htm House of Commons Justice Select Committee (16/10/2019) Evidence given by Robert Buckland @ https://www.parliamentlive.tv/Event/Index/90a41164-­ fc9d-­44e0-­8213-­524b392c0f30 House of Commons Justice Select Committee (07/04/2020) Full summarised note of proceedings including evidence given by Robert Buckland @ https://publications.parliament.uk/pa/cm5801/cmselect/cmjust/correspondence/200407-­ Justice-­Committee-­meeting-­Robert-­Buckland-­note1.pdf

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House of Commons Public Accounts Committee (January 2018) Offender-­ Monitoring Tags: Summary @ https://publications.parliament.uk/pa/ cm201719/cmselect/cmpubacc/458/45802.htm House of Commons Public Accounts Committee (April 2019) Transforming Rehabilitation: Progress review @ https://publications.parliament.uk/pa/ cm201719/cmselect/cmpubacc/1747/1747.pdf IMB (August 2020) Report on women’s resettlement @ https://s3-­eu-­west-­2. amazonaws.com/imb-­prod-­storage-­1ocod6bqky0vo/uploads/2020/08/IMB-­ Womens-­estate-­resettlement-­report-­August-­2020-­FINAL-­.pdf Lidington, D (July 2017) ‘Probation reform’ @ https://www.gov.uk/government/ speeches/probation-­reform-­open-­letter-­from-­the-­secretary-­of-­state-­for-­justice Mason, R (09/11/2021) ‘At least a quarter of Tory MPs have second jobs, earning £5m a year,’ The Guardian. MOJ (December 2010) Breaking the cycle, Green Paper @ https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/185936/breaking-­the-­cycle.pdf MOJ (October 2017) Unpaid work Specification Document @ https://assets. publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/666526/Unpaid-­w ork-­C ommunity-­Payback-­M oJ-­s ervice-­ specification.pdf MOJ (July 2018) Strengthening Probation, Building Confidence: Consultation Launch @ https://consult.justice.gov.uk/hm-­prisons-­and-­probation/ strengthening-­p robation-­b uilding-­c onfidence/supporting_documents/ strengtheningprobationbuildingconfidence.pdf MOJ (16/02/2019a) ‘Justice Secretary unveils GPS tag roll out to better protect victims’ @ https://www.gov.uk/government/news/justice-­secretary-­unveils-­ gps-­tag-­rollout-­to-­better-­protect-­victims MOJ (18/02/2019b) Speech by David Gauke: ‘Beyond prison, redefining punishment’ @ https://www.gov.uk/government/speeches/beyond-­prison-­ redefining-­punishment-­david-­gauke-­speech MOJ (16/05/2019c) Press Release: ‘Justice Secretary announces new model for probation’ @ https://www.gov.uk/government/news/justice-­secretary-­ announces-­new-­model-­for-­probation MOJ (16/05/2019d) Strengthening Probation, Building Confidence: Response to the Consultation @ https://consult.justice.gov.uk/hm-­prisons-­and-­probation/ strengthening-­p robation-­b uilding-­c onfidence/results/strengthening-­ probation-­consultation-­response.pdf

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MOJ (18/07/2019e) Speech by David Gauke ‘Smarter Sentences, Safer Streets,’ Social Market Foundation @ https://www.gov.uk/government/speeches/ smarter-­sentences-­safer-­streets MOJ (December 2019f) Background Notes to the Queen’s Speech 19/012/2019 @ https://assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/853886/Queen_s_Speech_December_2019_-­_background_briefing_notes.pdf#page=66 MOJ (September 2020a) A Smarter Approach to Sentencing @ https://assets. publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/918187/a-­smarter-­approach-­to-­sentencing.pdf MOJ (30/07/2020b) Offender Management Statistics: Licence Recalls and Probation @ https://www.gov.uk/government/statistics/offender-­management-­ statistics-­quarterly-­january-­to-­march-­2020%2D%2D2 MOJ (October 2020c) Proven reoffending statistics quarterly bulletin, October 2018 to December 2018 @ https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/930446/Proven_reoffending_stats_bulletin_OctDec18.pdf MOJ (08/06/2021) ‘Strengthening probation, building confidence’ @ https:// www.gov.uk/guidance/strengthening-probation-building-confidence#relateddocuments MOJ / Kerr, J Roberts, E, Davies, M Phelps, M (2019) Process evaluation of Global Positioning Monitoring Pilot: Qualitative findings @ https://assets. publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/779199/gps-­location-­monitoring-­pilot-­process-­evaluation.pdf. MOJ/ Eaton, G and Mews, A (2019) The impact of short custodial sentences, community orders and suspended sentence orders on reoffending @ https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/814177/impact-­short-­custodial-­sentences.pdf MOJ/ Fahy, K and Engingsoy, A (February 2020) A Process Evaluation of the Enhanced Through-the-Gate Specification: Final report @ https://assets. publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/923222/evaluation-­o f-­t he-­e nhanced-­t hrough-­t he-­g ate-­ specification.pdf Murray, J (07/11/2021) ’30 MPs who could be affected by proposed consultancy ban’, The Guardian. National Audit Office (February 2006) The Electronic Monitoring of Adult Offenders @ https://www.nao.org.uk/wp-­content/uploads/2006/02/ 0506800.pdf ).

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National Audit Office (April 2016) Transforming Rehabilitation https://www. nao.org.uk/wp-­content/uploads/2016/04/Transforming-­rehabilitation.pdf, National Audit Office (July 2017a) The New Generation Electronic Monitoring Programme @ https://www.nao.org.uk/wp-­content/uploads/2017/07/The-­ new-­generation-­electronic-­monitoring-­programme.pdf ). National Audit Office (December 2017b) Investigation into Community Rehabilitation Company Contracts @ https://www.nao.org.uk/wp-­content/ uploads/2017/12/Investigation-­into-­changes-­to-­Community-­Rehabilitation-­ Company-­contracts.pdf National Audit Office (March 2019) ‘Transforming Rehabilitation: Progress Review’ @ https://www.nao.org.uk/wp-­content/uploads/2019/02/ Transforming-­Rehabilitation-­Progress-­review.pdf National Health Service (January 2019) Longer Term Plan @ https://www.longtermplan.nhs.uk/wp-­c ontent/uploads/2019/08/nhs-­l ong-­t erm-­p lan-­ version-­1.2.pdf National Health Service/MOJ (June 2019) Community Sentence Treatment Requirements Protocol: Process Evaluation Report https://assets.publishing. service.gov.uk/government/uploads/system/uploads/attachment_data/file/ 810010/cstr-­process-­evaluation-­report.pdf#:~:text=The%20Community%20 Sentence%20Treatment%20Requirements%20%28CSTR%29%20 programme%20aims,health%20and%20social%20care%20issues%20 of%20the%20offender. Prison Reform Trust (PRT) (February 2013) Response to Transforming Rehabilitation @ http://www.prisonreformtrust.org.uk/Portals/0/Documents/ Prison%20Reform%20Trust%20response%20to%20Transforming%20 Rehabilitation.pdf Prison Reform Trust (September 2018) Response to MOJ Consultation ‘Strengthening Probation, Building Confidence’ @ http://www.prisonreformtrust.org.uk/Portals/0/Documents/Consultation%20responses/ Strengthening%20probation,%20building%20confidence%20PRT%20 consultation%20response.pdf Seetec (11/06/2020) Seetec responds to the MOJ @ https://www.ksscrc. co.uk/2020/06/11/seetec-­responds-­to-­ministry-­of-­justice-­announcement-­ on-­the-­future-­of-­probation-­services/ Shute, S (2007) Satellite tracking of offenders: a study of the pilots in England and Wales, Research Summary 4, London, MOJ. Skinns, C D (1990) Community Service Practice, British Journal of Criminology, 30/1: 65–80.

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Skinns, C D (2016) Coalition Government Penal Policy 2010-2015: Austerity, Outsourcing and Punishment, London: Palgrave/Macmillan. Travis, A (25/02/2016) ‘Plan for “bespoke” GPS tag for offenders abandoned by MOJ’, The Guardian. Travis, A (14/12/2017) ‘Private probation firms criticised for supervising offenders by ‘phone,’ The Guardian. Webster, R (22/03/2017) ‘Probation Supervision by Smartphone’ @ http:// www.russellwebster.com/probation-­supervision-­by-­smartphone/ Webster, R (21/05/2021) ‘New Providers of Probation Services Announced’ @ https://www.russellwebster.com/new-­p roviders-­o f-­r ehabilitative-­ services-­announced/

6 Bias and Discrimination in the Penal System

Introduction This chapter critically assesses the impact of Conservative government policies intended to reduce bias and discrimination in the penal system of England and Wales, in the May 2015 to March 2020 period, to determine how successful they were in their own terms and whether their efforts assuaged the penal crisis. This discussion is extended and concluded by the analysis of the pandemic and the penal system developed in Chap. 7, taking the consideration of policy on bias and discrimination in the penal system from March 2020 to the summer of 2021. Equality of treatment, that is, that like cases should be treated alike, represents the founding principle of British justice. The existence of bias and discrimination has the potential to fundamentally undermine the legitimacy of the system and represents an issue important enough to deserve separate treatment here. The discussion focuses on three bases of bias—socio-economic disadvantage and two of the ‘protected characteristics’ defined by the Equality Act 2010, ‘race’ and ‘sex’ or gender. The chapter rests on the analysis suggested in Chaps. 2 and 8 and therefore whilst not discounting the importance equality of treatment sees that it is always compromised, crime being a capital concept.

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The chapter begins by exploring the current regulatory framework which is intended to limit the expression of bias and prohibit discrimination. Attention then focuses on the broader context of inequality in which bias sits. Finally, the chapter critically examines the impact of government policy on the three forms of social disadvantage in the penal system connected to being poor, a BAME group member and a woman.

Regulatory Framework The Equality Act 2010 made it unlawful to directly or indirectly discriminate on the basis of ‘protected characteristics’ including ‘age, disability, gender reassignment, marriage or civil partnership, pregnancy or maternity, race, religion or belief, sex and sexual orientation’ (Section 4 Equalities Act 2010). Part 1(1) of the Act, whilst not making being poor a protected characteristic, did convey a duty on public bodies to, when making strategic decisions, ‘reduce the inequalities of outcome which result from socio-economic disadvantages’. In this Act, ‘race’ is defined as based on ‘Colour, nationality or ethnic national origins’, religion or belief related to any religion including lack of religion (10(1)), and sex is defined as being ‘a man or a woman’ (Section 11).

Social Context Biased or discriminatory treatment within the penal system does not occur naturally, by chance or by act of God, but is an intimate of contemporary inequalities and expresses and reproduces such inequalities. Weber’s classic essay—‘Class, status and party’ (Weber in Gerth and Mills 1967: 180–195)—enables insight into the pattern of inequalities, their essentially social and multidimensional character and how inequalities cohere or intersect in the experience of social groups and become part of the biography of people, ‘tattooed’ on their bodies and inscribed on their minds. Weber’s essay suggests that in modern societies, inequality has three separate, but overlapping, dimensions. ‘Class’ is rooted in the unequal

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possession of income and wealth and is an important material influence on the formation of social groups and based on variation in income and the stability and conditions of employment as well as the opportunities for accumulation of capital. Inequality is also based on ‘status’. Status relates not directly to the possession of things but to social sentiments held by others which convey prestige on some members of society and not others. Beliefs about status are not individual prejudices (although they may influence the script of such prejudice), but socially and historically institutionalised social sentiments that contribute to inclusion and exclusion in society. Such patterns have been typically expressed in pre-­ modern forms by notions of nobility or divinity (e.g. divine right of kings in sixteenth century in England) and/or superiority conveyed by life style (e.g. land ownership, the avoidance of trade, language use, the wearing of certain kinds of clothes, the ownership of certain kinds of property) and more recently notions of assumed genetic superiority or racial superiority, and even more recently, ‘celebrity’, entrepreneurial risk-taking and the particular lifestyles based on the accumulation of the symbols of wealth (e.g. certain kinds of houses, cars and holidays). ‘Party’, not power, as Weber defined the term to accord with his emphasis on modern democratic societies, indicates a third dimension of inequality, separate from, but related to, class and status. Inequality based on party is rooted in possession of the capacity to exercise authority, where authority is understood as the exercise of legitimate power to regulate and control others. Power is vested in the material structures of key institutions, most obviously in democratic regimes, political parties which aspire to gain ascendancy and govern and to operate the state which ultimately regulates and controls individuals and groups within the nation. The exercise of power is, however, not limited to political parties and the state but exercised by other institutions including business, trade unions, the media, organised religions, as well as various other pressure, lobbying or interest groups. Power conveys an opportunity to transform the self and society and is a clear contributor to social ­inclusion/ exclusion. Useful modifications to Weber’s conception of power were suggested by Lukes (2005), who argued that power is not merely exercised in the visible form that Weber references, that is, A telling B what to do and B

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complying. But it also manifested in two other forms. ‘Agenda setting’ captures one of these forms and operates where social organisation rules issues out of consideration. A obtains B’s compliance by ensuring B’s attempts to discuss matters are always ruled out of order. A good example of this process is the quiet withdrawal from the legal agenda, by the Coalition government, of the duty conveyed on public bodies by Part 1(1) of the Equalities Act 2010 to, when making strategic decisions, ‘reduce the inequalities of outcome which result from socio-economic disadvantages’. The orchestration of the ‘wants, needs and interests’ of people is the third form and relates to circumstances where B never conceives of her position as unfair and subordinate but legitimate and blames herself for not being self-willed enough to take advantage of the many opportunities that a meritocratic society provides. In late modern societies, processes of some complexity are at work, rooted at any one time in the playing out of material and ideological processes and any explanation of this process needs to take account of all three forms and both material and cultural levels of explanation. Furthermore, in trying to understand inequality we must recognise what I referred to above as patterns of inequality cohering or what Crenshaw in the late 1980s referred to as ‘intersectionality’ (Crenshaw 1989). Intersectionality suggests that social life for real individuals in practice is lived at the conjunction point of overlapping systems of privilege and oppression closely related to particular places and time periods. In practice, this means the playing out of cumulative, mutually reinforcing processes which lead to the marginalisation or the privileging of whole social groups. The Labour governments, 1997–2010, made much play on this in their notion of social exclusion (see Benn June 2000). A biased penal system, which exercises the power to punish, adds one more layer to the processes of social exclusion and inclusion. Finally, Geronimus’ concept of ‘weathering’ (1992) enables us to capture how the processes of intersectionality and social exclusion and inclusion become inscribed into the biography, bodies and minds of social subjects. The term was used by Geronimus to explain differential physical health outcomes related to pregnancy and childbearing for white compared with African-American women in the USA and connected to cumulative forms of socio-economic disadvantage, but also the term has

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a bearing on psychological health, a significant factor within the penal system. The term might easily be deployed to explain the differential new coronavirus outcomes associated with black, Asian and ethnic minority groups that is a conjunction of income differentials, patterns of othering via assumptions about race, the consequent concentration of such groups in particular kinds of public-facing and exposed but relatively low-paid work, as well as other sentiments emphasising the positive value, in ordinary times, of multi-generational households, especially in hostile contexts.

Socio-economic Disadvantage and the Penal System As noted above, inequality is a multidimensional, social product and intersects in the experience of individuals and creates their biographies, tattoos their bodies (sometimes literally) and becomes inscribed in the minds of social actors, contingently producing or denying a sense of shared experience. In this section, I want to explore one aspect of inequality in modern societies, that is, poverty and wealth. Its importance is not only material (rooted in the ability to buy and possess things and the opportunity structures this creates, though this is important), but cultural, as monetary success is the only success that is now recognised, and the only goal to which we are all taught to aspire and judge ourselves by. Despite the clear relevance of socio-economic inequality in modern societies, unlike my exploration of bias with regard to BAME groups and women in the penal system set out below, I cannot begin here with an authoritative reference document, which makes explicit the operation of socio-economic inequality in the penal system and overviews how it has been mitigated by government policy. This is so in a general sense because since the emergence of ownership or proprietarian regimes, the rich and the poor are portrayed as equal before the law. This is both incorrect and correct. It is incorrect in that, as noted in Chap. 2, crime is a capital concept. Ordinary people do not have the means to benefit from the legal system in any meaningful way without some kind of legal aid, and legal

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aid has been eroded over the last ten years (see Chap. 3). It is correct in that compared with the inequality regimes of the Middle Ages, based on virtually unlimited monarchical power, proprietarian inequality regimes do allow for at least some degree of legal protection for ordinary people (for further analysis of this, see Chap. 8). Furthermore, like other inequality regimes based on proprietarianism, successive governments, in the 2010–2020 period, have portrayed the impact of socio-economic disadvantage as part of the natural order of things and, even, directly useful to society because of the competition it promotes. Any attempt to try to significantly alter socio-economic inequality, except by encouraging everybody to strive harder, has been seen to question the very basis of social order, risking the possibility of anarchy, chaos and ‘fear of the void’, by threatening semi-sacred private property (Piketty 2020a: 715). Thus, the extent to which crime is indeed a capital concept has been rendered invisible by the exercise of power, by it being removed from the agenda and replaced by the merciless portrayal of society as robustly meritocratic. A significant example of this was the way in which Part 1(1) of the Equalities Act 2010 noted above was simply removed from practical consideration by the Coalition government. My comments above seem out of line with the recent movement by the Johnson governments to a ‘levelling up’ agenda (see Conservative Party November 2019 and more recently the UK Government 11/05/2021), as it would seem that this agenda rests on, not only recognition of, but also a commitment to ameliorating, socio-economic inequality. The full details of this agenda await the White Paper announced in the Queen’s Speech (UK Government 11/05/2021: 5), but it seems clear that this is nothing more than a form of gerrymandering designed to retain the support of the ‘red wall’ constituencies for the Tories and more generally persuade others to eschew the Labour Party. It operates using a familiar approach by intimating that the pandemic, an act of God, has temporarily distorted the natural socio-economic processes and that thus, unusually, there is a need to intervene to readjust the natural balance by reducing the inequalities that have developed between local government areas, the north and south of England and UK regions and perhaps even between business and skill training opportunities for some social groups. The underlying meritocratic message remains

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unquestioned, that opportunities are normally equally distributed when they are actually structurally skewed, inequality is natural when it is socially manufactured and greed is good when greed destroys rather than creates. I wish to break with this socially constructed part or complete invisibility and consider patterns of socio-economic inequality connected to income and wealth and examine how these are manifested in penal populations. Income and wealth inequality has increased comparing 1950–1980 with 1980–2015 and within the 2015–2021 period. The overall conclusion is that socio-economic pressures have led not only to the existence of an underclass, but also what Standing (2016a, b) refers to as the precariat, a stratum of people who are pressured into unstable labour, are entirely dependent on money wages and continually in debt and only one step away from tipping into the underclass. The precariat have a distinctive relation to the state, in that they are losing rights, making them permanent ‘supplicants’. On income inequality, the ONS data suggested, using the standard measures—the Gini coefficient, the Palma index, and the S80/S20 score and P10/P90 scores—that there had been an increase in income inequality 2015–2020 and between the 1970s and now. In their assessment of the 2016/17 to 2019/20 period, the ONS concluded that: Across all measures… there has been a slight increase in income inequality since FYE (financial year ending) 2017. The Gini coefficient has increased from 33.4% to 34.6%, while the S80/S20 ratio shows an increase from 5.2 to 6.1. This mainly reflects a fall in disposable income in for the poorest 20% of people.

Furthermore, the ONS noted that: Income inequality increased during the 1980s across all these measures with some varying change in the late 1990s and 2000s. The Gini coefficient is 6.1 percentage points higher in FYE 2020 than average levels throughout the late 1970s and 1980s. (ONS 22/07/2020a)

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However, Piketty urges scepticism regarding the accuracy of the Gini score as this often obscures changes affecting redistributions between groups (he mentions the move to greater inequality between middle and upper income levels (2020a: 659) and that, more pertinently, ‘the Gini coefficient is generally calculated on the basis of data that inherently tend to underestimate the degree of inequality—most notably, household surveys in which income and wealth are self-declared; such surveys absurdly understate the income and wealth of people at the top of the distribution’ (ibid.). Indeed, Piketty relates this to a much more general problem, the lack of fiscal transparency which impacts on democratic debate and the credibility of governments. The Institute for Fiscal Studies (IFS) (June 2020) also notes significant issues here. Firstly, there has been an increasing divergence of the fortunes of the top income earners (who have experienced rapid income growth enabling them to minimise the impact of inflation), from the low-income earners (who have experienced only slow income growth and the impact of inflation has been significant) (IFS June 2020: 17). Secondly, as the IFS puts it: ‘The reason this has not led to an increase in absolute poverty is that those falls in income occurred at income levels below the poverty line—in other words, there appears to have been a deepening of poverty recently, without a change to the headline rate’ (IFS June 2020: 20). Thirdly, relative child poverty has increased from 27% in 2011/12 to 30% in 2018/19 (IFS June 2020: 20) due to a freeze on working benefits and tax credits for low waged households, a freeze on benefits for those not in work and on benefits and because of limitations and restrictions imposed on benefit recipients leading to a 15% decrease in value (IFS June 2020: 28 Table 3). It is also the case that people in this category face a harsher environment constructed by the imposition of universal credit. The ‘othering’ of benefits recipients probably did not quite reach the stage of the ‘Go home or face arrest vans’ that drove round six London Boroughs in July–August 2013 during the low point of the Home Office-inspired hostile environment’ for illegal migrants, but it did contribute to a demonisation of benefits recipients as ‘losers’ (Travis 31/10/2013).

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The net result was a shaking out of recipients of out of work payments into the marginalised work economy, taking up ‘employment’ on zero-­ hour contracts (some 900,000 people were employed on these type of contracts by 2019; ONS 10/09/2019: Fig. 3). Many also sank into mental health problems and suicide, and had the possibility that they would be transinstitutionalised, given the shrinkage of the psychiatric in-patient system (psychiatric beds have been reduced by 25% since 2010—see Campbell 05/07/2021) and the way that the criminal justice system was forced to deal with them. Many others also were devolved into other forms of marginalised employment, operating as self-employed, at best on the fringes of the ‘purple economy’ based on cash-in hand jobs and perhaps other irregularities, for example, the illegal dumping of waste. Piketty, sceptical of the conventional indices, examined the top decile’s (10%) and percentile’s (1%) share of income and wealth in the period 1910–2015. His analysis suggests a period in which the inequality of income and wealth reduced, but then, after 1980 a clear trend towards much greater income and wealth inequality again, although not as pronounced as other countries like South Africa, the Middle East, Brazil and the USA (ibid. 2020: 652). For income, the top 10% on average received ‘around 50% in Western Europe in 1900–1910 (about 53% for the UK) … before falling to around 30% (probably slightly higher at 33% in the UK). In 1950–80 … then rising to above 35% 2010–2015 (40% in the UK)’ (Piketty 2020b: Fig. 10.2 page 420 supplementary tables). The top 1% of income receivers ‘averaged around 20–25% in Western Europe in 1900–1910 (25% and above for the UK) … before falling to around 5–10% (about 9% in the UK) in 1950–80 … then climbing to about 10–15% 2010–2015 (including the UK)’ (Piketty 2020b: Fig. 10.3 page 421 and in supplementary tables). Similar trends are visible regarding wealth but are more pronounced. Thus, the top 10%’s ‘share of total private property … was about 90% in Western Europe in 1900–1910 (more than 90% for the UK) … before falling to around 50–55% (above 55% in the UK) in 1980–90 … then rising again to 60% (55% in the UK)’ (Piketty 2020b: Fig. 10.4 page 423 and in supplementary tables). The top 1%’s ‘share of total private property … was roughly 60% in Western Europe in 1900–1910 (70% in the UK) … before falling to less than 20% in 1980–90 … then rising since

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that date to more than 20%)’ (Piketty 2020b: Fig. 10.5 page 423 and in supplementary tables). Piketty concludes by saying that ‘for Europe … first inequality collapsed between 1914 and 1945–50 in all countries for which data is available, and second, whilst inequality has increased since 1980, the magnitude of the increase varies widely from country to country [and] the trajectory of the UK is closest to that of the US’ and the trend is clear, a greater resurgence of income and wealth-based inequality. Such changes have been associated with the economic marginalisation of some groups by a number of processes. Globalisation has encouraged de-regulation of some forms of employment influencing pay, conditions and security of employment, particularly the increase in zero-hour contracts and marginal self-employment. Cuts in public expenditure in the UK have disproportionately affected those on low incomes and low wealth holding, simply because their lives depend on the support they receive, whether that is income support for the unemployed and chronically sick, subsidies for low wages paid through Universal Credit, changes to the health service attendant upon cost in the context of rising demand for NHS services, funding changes to schools and funding changes affecting local authorities providing social care. At the same time, changes to tax regimes mean that those less well-off carry a greater tax burden. It has also led to the privileging of other groups, whose employment has become more secure and better rewarded, who can ride above cuts in public expenditure because they depend on state-subsidised private schools for their children’s education, and, as long as they have no chronic health condition, private healthcare or the mobility to shift between private and NHS care to obtain advantage and changes to the tax structure that have rewarded not penalised them (changes in higher tax bands, Inheritance Tax). As noted above and in Chap. 2, the criminal law differentially protects the personal and property rights of some groups, those who possess significant assets and whose personal rights are heavily tied up with such property rights, compared with those who do not have tangible assets. The criminal law also differentially impinges on different groups. Those groups who possess property do not need to sleep under bridges, or beg on the street or steal bread, unlike the poor who are much more likely to feel the control of the copper on their collar, build an unwelcome

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familiarity with the beak and experience the deprivation of the dungeon, insofar as the social and economic order is seen to be in need of defence from the homeless, the beggar, the petty thief and the denier of property rights. This necessary unevenness, as indicated in Chap. 2, is dramatically revealed in the operation of the coronavirus regulations during the recent lockdowns, with the law even-handedly forbidding the rich as well as the poor to leave their homes without good excuse and make ends meet by stealing ‘bread’. Furthermore, the necessarily skewed consequences of the criminal law are accentuated by, as Reiner puts it, a clear, active and partisan construction process concerned with ‘the politics of immunity, of non-­ criminalization’ leading to changes in how immunity and non-criminalisation are created, maintained and changed over time (e.g. with regard to the Coronavirus Regulations in 2020). Reiner’s analysis explores this by considering how crime categories vary over time, related to the ability of dominant groups to shape laws, the structural connections between law and private property as inscribed into the foundation of modern law, self-fulfilling stereotyping and differential access to the legal process (Reiner 2016: 81). A case study in the politics of immunity and the treatment of ‘the usual suspects’ is possible concerning the way which the coronavirus regulations first articulated for England in late March 2020 and supposedly universally applicable and beneficial, have not only inequality inscribed in them, but also have been differentially applied (see in particular the results of the work carried out by Posch in Dodd 03/06/2020; National Police Chief ’s study 27/07/2020; Frazer-­ Carroll, M 03/05/2021). People caught up in the operation of the penal system are disproportionately drawn from particular social groups and, although not exclusively poor, are mainly so. There are many ways to capture this reality but all are hampered by the failure to collect systematic data on the matter. The Office of Population Censes and Surveys published a national prisoner survey in 1992 which gave some socio-economic data (OPCS 1992). However, since the OPCS merger with other bodies, to create the ONS in 1996 (ONS Website), no further surveys of this kind have been undertaken, as shown by the negative responses to FOI requests made in

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02/11/2020 and 31/03/2021 about such data (see ONS 02/11/2020b and 31/03/2021). At the moment at least, it is possible to routinely know the race, sex, sexual orientation, disability and nationality and possible to glean some data on some aspects of the physical health of prisoners, but it is very difficult to discover very much about their basic socio-economic position including experiences of poverty as a child or adult and previous occupations (Social Exclusion Unit (SEU) 2002: MOJ November 2010). However, the statistics set out in Table 6.1 in this chapter suggest a clear over-representation of those socially excluded groups based on lower income earners and wealth holders in prison populations. Some of these socio-economic factors are set out below contrasting the proportions of Table 6.1  Social background of prisoners compared with the general population of England and Wales General population

Aspect of social background

Prisoners

Type of employment prior to imprisonment (OPCS 1992).

82% manual workers, of whom 41% ‘unskilled’ 24%

56% manual workers

59%

5.2%

42%

1%

47%

15%

53%

85%

68%

7.7%

13%

3.9%

15%

4%

27% (Pyper May 2021: 5)

16% (Yasin and Sturge October, 2020)

Taken into care as a child (PRT Winter 2021a: 22). Regularly truanted from school as a child (PRT Winter 2021a: 22). Expelled or excluded from school (PRT Winter 2021a: 22). No qualifications on leaving school (PRT Winter 2021a: 22). Educated beyond GCSE level (Hopkins 11/03/2012). Unemployed in the four weeks before custody (Social Exclusion Unit 2002; PRT Winter 2021a: 22). Never had a job (PRT Winter 2021a: 22). Homeless before entering custody (PRT Winter 2021a: 22). Member of black or ethnic minority group (BAME). Sources: As shown in the table

2%

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people in prisons and the general population on various socio-economic relevant factors. Such data reveal socio-economic bias in the penal system resulting from a number of influences. Firstly, crime is a capital concept and disproportionately forbids actions that are largely not part of the vocabulary of action of wealthier groups. Secondly, although rich is never rich enough in a neo-proprietarian society and thus many groups will be subject to criminal motivations, recklessness driven by necessity is itself differentially distributed. Thirdly, the possession of wealth and power enables the commission of actions that can be more easily concealed or rendered non-crimes by various patterns of socially constructed immunity. Self-­ report studies reveal these processes at work with estimates suggesting a shift in ratio of 1.5 working class boys to 1 middle class boy perpetrating acts of delinquency to 5 working class boys to 1 middle class boy gaining a criminal record (Gold 1966). The operation of the penal system does little to mitigate and a great deal to exacerbate the economic marginalisation of offenders. The effect is exacerbated by failing to make fines and other financial impositions related to income. Imprisonment disrupts employment and thus income detrimentally affects the stability of housing tenancy or ownership. It adds further to marginalisation by subjecting offenders to multiply deprived experiences, for example, in legal aid-limited courts and multiply deprived prison-living conditions. It contributes to a sense of injustice by not being procedurally fair. It is unlikely that any of the plans in the promised levelling up White Paper will, if implemented, significantly alter these processes. Some degree of basic bias related to socio-economic factors is built into capitalist inequality regimes. ‘The revolution of the rich’ (Reiner 2007: 1) engineered in the last 50 years has created surplus bias and thus surplus lack of justice and lack of legitimacy.

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‘Race’ and the Penal System The two sections on race and gender bias in the penal system adopt the same method of presentation. Patterns of bias are captured by using a timely, authoritative reference document and then the impact of Conservative policies is assessed using subsequently published work.

Reference Document The Lammy Report (September 2017) provided a timely, authoritative snapshot of practices in the penal system in relation to race and a basis for change (Annex A Lammy Review Report September 2017). The report operationalised the notion of race by adopting the not unproblematic, but still useful, category of ‘black, Asian and minority ethnic’ or BAME people (Lammy Review Report 2017: 3). The overwhelming conclusion reached by the review was that although more BAME individuals were ‘breaking through [social] barriers’, the criminal justice system was resisting the trend and thus: Those who are … punished are still disproportionately likely to come from minority communities. (Lammy September 2017: 3)

The Lammy recommendations may be summed up in five main points. Firstly, the report called for an appropriate criminal justice body to coordinate efforts to collect statistics on BAME membership in penal populations and improve data collection, analysis and dissemination. Secondly, the review report asserted the need for a new and important general principle, ‘explain or reform’, meaning that ‘if … agencies cannot provide an evidence-based explanation for apparent disparities between groups then reforms should be introduced to address those disparities’ (ibid.: 7). Thirdly, three main recommendations were made concerning courts, with the themes established (greater transparency regarding sentencing remarks in Crown Courts, greater scrutiny of decision-making and changes to the recruitment, training and diversity of staff), then being applicable to other parts of the penal process. The first element of this was

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a recommendation to expose judicial case management to feedback, with this becoming part of a more generally improved judicial training process (recommendation 14) and the modernisation of the judicial recruitment process (recommendation 15), together with clear national targets for achieving a representative judiciary by 2025, with annual parliamentary scrutiny of progress on the achievement of targets (recommendation 16). Fourthly, Lammy made a number of recommendations concerning prisons, including the extension of the Comprehensive Health Access Tool (CHAT), a standardised screening and health assessment approach used with young offenders, to adult jails, the publication of data by ethnicity relating to release from prisons and reoffending, the setting up of a forum to review the fairness and effectiveness of the Incentives and Earned Privileges system in each prison, involving prisoners and staff, with adequate BAME representation, and the inclusion of independent members (from the IMB) with a remit to consider the interests of prisoners on Use of Force Committees in all prisons (recommendations 21, 24 and 25). It was also recommended that HMPPS should ensure that all complaints are decided on the balance of probabilities and that a ‘problem-­ solving’ approach be adopted to resolve complaints (recommendations 26 and 27, page 8). Lammy recommended that the MOJ should also ensure more representative recruitment of prison officers and prison management (recommendations 28 and 29). Finally, with regard to probation, the Lammy review recommended the setting up of a working group, with appropriate representation of organisations dealing with BAME issues, to review barriers to the effective working of the CRCs and the MOJ should specify in detail the statistics CRCs are required to collect including data on protected characteristics (recommendations 31 and 32).

Responses to the Lammy Report The report was well received by many groups concerned with criminal justice matters (PRT 08/09/2017; Howard League for Penal Reform 08/09/2017). But the report did have shortcomings including the relative lack of attention paid to bias based on income and wealth inequality

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(only one paragraph is devoted to it—on page 3), the comparative neglect of the operation of bias in probation and, finally, the omission of the police from the terms of reference of the review which severely and inappropriately limited its analysis and probable impact. The 2017–2020 period has seen a significant change in government orientation to the report, moving from acceptance of the analysis, problem and a significant proportion of the recommendations, to an emergent position, from July 2019, based on a view that the Lammy recommendations have been implemented, that there are grounds to celebrate the distance travelled, and that neither explanation nor further major change is necessary which I term below the ‘job done approach’. In 2017, the government of the day responded by accepting a good many of the Lammy recommendations, recognising that there was indeed bias in the criminal justice system on the basis of race (MOJ 19/12/2017b). The government response accepted the need for standardised and improved statistics together with a more rigorous analysis based on Relative Rate Indexes (RRI). RRIs use a method adopted in the USA to ‘isolate the effect of decision-making on disproportionality at each state of the CJS’ (Lammy Review Report 2017: 12). A Race and Ethnicity Board was proposed to coordinate collection data and dissemination. The government also accepted the key ‘explain or reform’ principle. Indeed, they went further suggesting that ‘it will be judged on its actions, as well as its words’ (MOJ 19/12/2017b: 3). They were much less accepting of any of the recommendations made regarding courts, wanting to generally preserve the status quo. On prisons, they accepted the need to consider how CHAT could be adapted for adults. The response document noted that the IEP scheme was under review but that ‘governors have been required, with immediate effect, to set up diverse forums in every prison to review the fairness and effectiveness of the IEP system, consistent with recommendation 24’ (MOJ 19/12/2017b: Para 76 page 21) and further, ‘HMPPS has asked … governors to ensure with immediate effect that they have appropriate, diverse forums to review the use of force, with an authoritative member on each panel to represent prisoners’ interests’ (ibid.: Para 77, page 22). The document also accepted that there was a need to embed a problem-solving approach to dealing with complaints and reaffirmed that the balance of

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probabilities was the standard of proof applied to the consideration of complaints (ibid.: Para 80, page 22). The government also accepted the Lammy recommendations concerning diversity in prison staff and prison management, setting clear targets of 14% of prison staff with BAME backgrounds by December 2020 (ibid.: Para 81, page 23) and 12% of prison managers by the same date (ibid.: Para 83, page 23). Finally, with regard to probation, the government accepted the Lammy review recommendation of the setting up of a working group, with appropriate representation of organisations dealing with BAME issues, to review barriers to the effective working of the CRCs (ibid.: Para 93, page 25). After such a strong overall endorsement and near apparent full acceptance of the content of the Lammy Report, it might have been reasonable to expect implementation followed by improvement. Subsequent events have shown that endorsement has turned into a denial that the problem any longer exists. The evidence given to the House of Commons Justice Committee in March 2019 by various witnesses including David Lammy (House of Commons Justice Select Committee 26/03/2019) was that some progress had been made in the collection of data, including setting up a cross-Criminal Justice System body, the Race and Ethnicity Board, and that much activity was evident in the MOJ on race and ethnic disparity in the criminal justice system. But, as Lammy suggested, such activity in the MOJ ‘should not be confused with measurable outcomes’ (Q25), that the discriminatory situation faced by BAME members in the criminal justice system had actually worsened since his report was submitted in 2017 and that this was, to a large extent, due to the important recommendations made in the report with regard to courts, prisons and probation not being implemented.

Emergence of the ‘Job Done’ Approach However, in contrast, a few months later, the second Johnson government document on reactions to the Lammy review gave an upbeat assessment of the responses engaged so far and the accomplishment of the accepted recommendations to date in Appendix 1 (MOJ February 2020a), amounting to an early warning of what was later to emerge.

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In the first main area, on the standardisation, collection and processing of statistics relating to BAME individuals, the report noted that work was progressing in some areas (the collection of data on religion for the CPS and courts) but that there were some difficulties re RRI methods. The notion of ‘explain or change’ was reaffirmed as a guiding principle (MOJ February 2020a: 57). Regarding courts, the recommendations were mainly still rejected, although it was suggested that support was being extended to under-­ represented groups in order to encourage applications to the judiciary (ibid.: 72–73). The recommendation concerning the targets for the recruitment of BAME members of the judiciary was also rejected, despite the journal ‘Lawyer Monthly’ suggesting that there was continuing lack of diversity amongst judges and magistrates and the Judicial Diversity Report 2020 finding ‘stagnation in the appointment of BAME judges’ between 2017 and 2019 (Justice 2020: 1). On prisons, the proposal to adapt CHAT for adults was rejected as unworkable (MOJ February 2020a: 63). The report noted that the new IEP scheme of September 2019 had advanced matters and that by 13 January 2020 the forums suggested by Lammy were in existence and working (ibid.: 65). In addition, the report noted that a good practice guide pertaining to use of force in prisons had been issued (ibid.: 66), and a new complaints policy (relating to problem-solving approaches and evidential levels) reflecting the concerns expressed by Lammy had been implemented in August 2019 (ibid.: 67). The document repeats the commitment to hitting BAME recruitment targets (14% by December 2020) but that this remained an expectation rather than an accomplishment (in 2019 the figure was 7.9% for public sector prison staff) (ibid.: 68). The recommendations made about probation had clearly been overtaken by the events associated with the bodged privatisation (see Chap. 5 of this book), and the document refers to the need to, nevertheless, abide by the spirit of the Lammy proposals here by allowing for the influence and entry of specialist BAME organisations into the CRC area of operation. In summary, the report suggested that what was realistic to expect had been done even if this meant that Lammy’s review recommendations had

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been implemented in spirit if not by their letter and that this was all any reasonable person could expect.

Race Bias in the Penal System to March 2020 Is the government’s emergent ‘job done’ position borne out by the evidence available about events to March 2020? Although an estimate of simple disparity is not conclusive, nevertheless the existence of continued disparity gives good grounds to question the ‘job done’ position increasingly taken by government. The evidence that is available suggests support for Lammy’s position that race and ethnic disparities in the penal system have not improved, but worsened. This is shown by considering, on the one hand, whether the BAME citizens are still over-represented in penal populations, and on the other hand, it is shown by considering whether the under-representation of BAME citizens continues with regard to penal system decision-makers. Unfortunately, RRI data here are not available beyond 2018. Lammy indicated that BAME citizens made up about 14% of the population in England and Wales in 2015–2016 (September 2017: 3). This rose to 16% in 2019 (Yasin and Sturge October 2020: no page). Lammy (September 2017: 3) found that some 20% of defendants in court were BAME citizens. Yasin and Sturge (October 2020) reported that some 23% of those prosecuted were of BAME background in 2019, revealing a worsening of over-representation, despite the intervening period and despite the apparent policy changes. The MOJ (02/12/2021b: 19–20) revealed that 25% of those prosecuted were of BAME backgrounds. Lammy did not provide specific statistical details about those BAME citizens remanded in custody awaiting trial or hearing, but he did remark on the matter of the over-representation of these groups, especially in the youth justice system (Lammy September 2017: 60). Pyper reported that for those charged with indictable offences, some 21% of BAME defendants and 16% of white defendants in magistrates’ courts were remanded to custody and 45% of BAME defendants and 39% of white defendants in Crown Courts were remanded to custody, once again affirming the

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continued existence of apparent race and ethnic disparity (Pyper May 2021: 48). Lammy (2017: 33) reported that although overall the sentences of immediate custody imposed on BAME and white groups are similar, they are markedly different with regard to some offences, notably drug offences. Pyper (May 2021: 51) noted that the average custodial sentence length (ACSL) for white convicted offenders sentenced to immediate custody was, for all offences, 20 months and the same for violent offences, whereas the ACSL for BAME convicted offenders sentenced to immediate custody was for all offences 27 months and for violent offences 37 months. Lammy found that some 26% of the prison population were BAME citizens (September 2017: 31) and this must be compared to the 27% of BAME citizens who comprised the prison population in the year to March 2020 (see Table 3.4 in Chap. 3: Pyper May 2021: 5), again showing not an alleviation, but an exacerbation of race and ethnic disparity. The experiences of BAME and white prisoners can be assessed using HMIP survey data (see Table 4.13 in Chap. 4). The reader will recall that this table split prisoner experience into two forms dealing with matters relating to the fairness and the decency of their treatment. The comparison is limited by the fact that not all questions have been asked throughout the period, although an attempt has been made by HMIP to assess variability of experience according to race and ethnicity. In Table 4.13, of the nine questions related to fairness of treatment, only four of them cover the full period. The statistical significance of the differences was not assessed by HMIP in the 2010–2011 survey. The extant questions reveal lower proportions of BAME prisoners indicating that their cell bells were answered within five minutes (although this was only a significant difference in 2019–2020). Significantly fewer BAME prisoners expressed the view that it was easy to make an application and a complaint in 2014–2015 and 2019–2020 and in both cases, but only in 2019–2020, significantly fewer BAME prisoners considered that they had received a fair or timely response. In 2014–2015 and 2019–2020, significantly fewer BAME prisoners thought that they had been fairly treated by the Incentives and Earned Privileges scheme.

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Turning to the 16 questions plumbing decency of treatment, 12 questions provide a spread of responses, between 2014–2015 and 2019–2020. A striking, if not completely consistent pattern is revealed, namely, that generally BAME prisoners indicate they were less decently treated than white prisoners with regard to reception, the feeling of safety on the first night, being treated with respect by staff, feeling safe at the time of the survey, gaining access to a doctor (2019–2020), gaining access to a solicitor, being helped with release, and in the 2019–2020 survey only, being subject to staff physical assaults and verbal intimidation. Although there is evidence that black probation clients are more likely to have their order revoked than whites (see Janetta et al. April 2014), there seems to be little other official data on the matter in England and Wales. Turning now to the under-representation of BAME citizens in the staffing of courts, prisons and probation, Lammy suggested that there is ‘a lack of diversity among those who hold power’ and that the penal system is no exception to this. He indicated that in 2016–2017, 11% of magistrates identified as BAME and that in 2015–2016, 7% of judges had the same kind of self-identification (2017: 37). Judicial Diversity Statistics for 2019–2020 indicated only a slight, positive change with 13% of magistrates and 8% of judges identifying as BAME (MOJ November 2020b). The lack of diversity among those who hold power is also found in prison officers, with only 6% of them having a BAME background (Lammy Review Report September 2017: 55). More recent data from the Prison Service Pay Review Body Report for 2019/20 indicates that 7.3% were of a BAME background (Prison Service Pay Review Body Report 2019/20 July 2020), showing a marginal improvement in marked contrast to changes in the disparities in the prison population. It is not possible to determine from National Offender Management Service/HM Prison and Probation Service statistics what proportion of probation staff had BAME origins in 2015–2018 due to declaration rates from staff in the service being too low (NOMS/HMPPS Digest of Statistics 2015–2018), but even by 2019–2020, when data became available, the proportion of National Probation Service staff self-identifying as

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BAME was 15% (MOJ/HMPPS July 2020: 47), just below the proportion of BAME people in the population. We must conclude that any changes that have been made to the operation of the penal system have not significantly decreased the over-­ representation of BAME people as defendants, prisoners and probation clients nor significantly increased the representation of people of BAME background among key personnel in the penal system to March 2020. The early emergence of ‘job done’ approach represents one salvo in the so-called culture wars. The net overall impact is to exacerbate the moral aspect of the penal crisis, with denial likely to significantly crank up this perception of lack of justice and therefore lack of legitimacy.

Women Reference Document The Corston Review reported early in 2007 (Corston Report 2007) and revealed that little progress had been made with regard to the improvement of the treatment of women offenders up to 2006–2007 and called for a radical change. The review began with a clear perception (and indeed an immediate change in basic terms of original reference) that there was a need to avoid seeing the position of women offenders as resulting from their personal troubles, as women being vulnerable, but as a social issue rooted in their socially constructed vulnerabilities connected to three factors, domestic circumstances (as mothers and victims of domestic violence), personal circumstances (‘mental illness, low self-esteem’) and socio-economic factors (including ‘poverty, isolation and unemployment’) (Corston Review report 2007: Para 1.4, page 15). The report demonstrated an awareness of intersectionality, that is, the way in which multiple patterns of disadvantage coalesce to over-determine behaviour and opportunity. Corston indicated that the way forward required a policy for criminal justice which was ‘distinct, radically different, visibly-led, strategic, proportionate, holistic, women-centred [and] integrated’ (ibid. 2007: 79). The report also rightly recognised that the amelioration of the

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position of women offenders required action, not just within the penal system, but in the wider criminal justice system and society. The report made a number of recommendations covering governance, courts and sentencing, prisons and probation. Generally, the reaction it received at the time by the then Labour government was favourable and this positive position was maintained throughout the 2015–2020 period, although government approval from the beginning has not always meant rapid, effective implementation consistent with the letter and spirit of the recommendations or even the understandings underpinning the report, particularly the notion of vulnerability (see, e.g. MOJ December 2007).

Corston: 10 Years On The main recommendations of the Corston report may be, for our purposes, grouped under four main headings. In order to track progress made on the recommendations during 2015–2020, I will first consider the assessment made by ‘Women in Prison’ (WIP) in 2017, ten years after the publication of the report and note the five significant lacunas identified by this document (WIP 2017). The Corston review proposed an across-the-board implementation of the then existing equality duty and the radical transformation of relevant penal services to make them women-centred (recommendation 1). The 2017 WIP paper noted that some notable reforms had been accomplished—namely, significant advances re prisons (in particular the development of distinct guidelines and expectations and ‘many probation offices having women-only reporting days or co-location with women’s centres’)—but there had been ‘no radical transformation for women in prison settings or in sentencing’, with statistics collected on gender still being inadequate (WIP 2017: 5). The Corston review report also recommended ‘The immediate establishment of an Inter-Departmental Ministerial Group, including NHS members’ (Recommendation 39) for women who offend and a Commission to deal with women who offend or reoffend (Recommendations 7, 8 and 9). The WIP paper commented that ‘Sadly no inter-Departmental Ministerial group for women who offend has

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been established’ and the existing Ministerial Advisory Board on Female Offenders is just that, advisory (WIP 2017: 9). Corston also recommended that offender pathways provided within the penal system should be better coordinated and extended to include the special needs of women who have been raped or sexually assaulted and the special needs of those women who have been involved in prostitution (Recommendations 14, 15, 16 and 17). The WIP noted that there had been no overall strategic coordination of the seven pathways, but that the extra two pathways were added, although there is little provision on the ground to make these workable. Furthermore, one of the other key pathways, accommodation, had become more problematic (WIP 2017: 12-1). The Corston document saw it as important that the NHS, with its own Women’s Mental Health Strategy, should reaffirm its commitment to the then existent Women Offender Reduction programme (WORP) and that the Health Minister should be involved with the Inter-­ Departmental Group (Recommendations 38 and 39). WIP noted that WORP had been discontinued and that health staff sit on the Female Offenders Advisory Board. Furthermore, some provision made had not been within the spirit of diversion that Corston intended (WIP 2017: 23). The report proposed the provision of across-the-board training to enable practitioners to be aware of and meet women offenders’ needs (Recommendation 41). The WIP document noted that the ‘Women Awareness’ staff programme has been delivered in the Prison Service, but lacked rigour and was too short (WIP 2017: 25). The Corston review report recommended the use of measures to divert foreign national women offenders from being imprisoned (Recommendation 5). The WIP noted the existence of the Foreign National Prisoner Hub at HMP Peterborough, but also noted that this cannot be accessed by foreign national women prisoners located elsewhere in the system. They also noted that the TR agenda led to inconsistency within probation provision, which caused confusion across the women’s estate (WIP 2017: 7). The review report did not recommend a separate sentencing framework for women offenders but suggested that this should be reviewed in the light of the experience of the implementation of the statutory

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equalities duty (Recommendation 12). The WIP noted some improvement in the availability of alternative court sanctions for women, but they suggested that the review was still needed (WIP 2017: 11). The Corston review report was very clear that custodial sentences should be limited to serious and violent women offenders only (Recommendation 18). The WIP document noted that this matter is ‘As pressing today as it was a decade ago’, with 84% of women who are sentenced to immediate custody having been convicted of relatively minor, non-violent offences and posing no risk to the public (WIP 2017: 13). The review report recommended that limitations should be placed on the remand to custody of women offenders, especially those with child-­ care duties and certain reasons used by sentencers for imposing custody (e.g. ‘in their own interests’) be prohibited (Recommendations 19, 20 and 22). The WIP noted that despite the presumption against remand in custody set down by LASPO 2012, large numbers of women (8818 in 2015) were still remanded in custody and that ‘for their own good’ type reasons were still being used by sentencers to impose custody (WIP 2017: 14–15). Corston also recommended (21) that more supported bail placements be made available for women, but the WIP (2017: 15) indicated that only limited accommodation was still available. Corston noted the need for a strong consistent, authoritative message from government, that custody is not the right place for women (Recommendation 35). WIP noted some shift in attitudes, but ‘there is still no clear coherent strategy for reducing the women’s prison population’ but the paper goes on to note that the ‘Female Offender Strategy’ not then published held out some hope, a matter we will consider below (WIP 2017: 21). Corston recommended the extension of liaison and diversion services (L&D) to courts (Recommendation 36) and the need for timely psychiatric reports (Recommendation 37) and the WIP noted the extensive roll-out of L&D services since 2007 but regretted the lack of dedicated women’s L&D services and that psychiatric report production had not been made more timely (WIP 2017: 22). The Corston review recommended the replacement of existing women’s prisons with ‘suitable geographically dispersed, small,

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multi-functional, custodial centres within 10 years’ (Recommendation 2) and in the interim, the improvement of women’s prison accommodation to make it clean and hygienic (Recommendation 3) and the restriction of routine strip-searching in prisons (Recommendation 4). The WIP document noted that small units had been established at HMPs Styal and Drake Hall, but that these were not dispersed and had not replaced existing prisons. The WIP rightly suggested that the diversionary message of Corston had been missed (WIP 2017: 7). The Corston report, given its emphasis throughout on diversion, and especially diversion from custody, placed importance on the provision of community solutions for female offenders as the norm (recommendation 23). WIP noted that some progress had been made, especially regarding L&D schemes, but that for women community solutions were still not the norm by 2017 (WIP 2017: 16). Corston also noted that the community sentences that are provided should take account of women’s vulnerabilities and child-care commitments (recommendation 24). WIP found lack of consistency throughout the country re women-only reporting days and co-location of services (2017: 16). Corston recommended that in order to push towards the greater use of community sentences for women offenders, there should be better information for sentencers on community options (recommendation 25). WIP noted that the fragmentation of probation attendant on Transforming Rehabilitation reforms made it impossible to assess national community sentence options for women (WIP 2017: 16). In order to avoid a ‘revolving prison door’ effect, Corston recommended (26) more flexible treatment of women who breach community orders. However, WIP found that unchanged sentencing guidelines made it difficult, if not impossible, to sentence differently (WIP 2017: 17). Corston recommended (29, 30, 32 and 33) the extension of a larger network of community centres in accord with a national strategy using a ‘one-stop shop’ model and acting as referral centres offering L&D services as well as other services like probation. WIP noted that there had been an extension of ‘one-stop shop’ provision and that community centre network existed but that there were key issues evident not the least questions over funding, variable development around the country,

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expansion not in keeping with the projections and that development had been disrupted by the Transforming Rehabilitation agenda (WIP 2017: 18–20). WIP concluded that by 2017 although some progress had been made, five areas were still in urgent need of attention (WIP 2017: 3), namely: 1. Expansion of and sustained funding for women’s centres in the community as ‘one-stop-shops’ to prevent women entering or returning to the criminal justice system (recommendations number 29, 30, 32 and 33). 2. Liaison and diversion schemes should be extended and rolled out nationally to divert women away from custody into support (recommendations number 33 and 36). 3. Specialist community support, including mental health support (recommendations number 36, 37, 39 and 40), and accommodation for women affected by the criminal justice system (recommendations number 16 and 21) needed to be made available. 4. The promotion of sentencing reform to make greater use of alternatives to custody and women’s community support services (recommendations number 18, 19, 20, 22, 23 and 24). 5. Coordinated, joined-up working between all agencies involved in the lives of women affected by the criminal justice system (recommendations number 1, 7, 8, 9 and 39). The ‘Female Offender Strategy’, promised by the White Paper in November 2016 (MOJo3/11/2016), was eventually set out in 2018 (MOJ 27/06/2018). This document, with a foreword by the recently appointed Minister of Justice, David Gauke, made the fundamental error of treating women offenders as vulnerable, rather than experiencing vulnerabilities as suggested by Corston (2007), thereby turning a social issue into a personal trouble. It also adopted a view which suggested that criminal justice responses needed to be tailored to women offenders’ needs and it is doubtful that this constitutes a women-centred approach in itself. But it did suggest that imprisoning women offenders, especially using short sentences, was counter-productive and that good community management of women offenders worked far better. The paper also went

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on to propose the reduction of the number of female offenders held in custody, the greater use of community sanctions and, where custody had to be used, the improvement of prison conditions in women’s prisons. Policies, the paper declared, should be locally based, rooted in partnerships and evidence-led. The policy document went on to make six concrete proposals. • An improvement in the resource base for women’s centres by putting in £5m of new funding over two years. • The establishment of five residential centres for women to act as alternatives to prison or half-way houses between community and the prison. • A reduction of the number of women held in prison. • The extension of the brief of the Farmer inquiry to focus on the issue of family ties and women prisoners. • The development of Whole Systems Approaches (WSA) by local areas to pursue a holistic support through joined-up local services with government contributing an overview in terms of ‘what works’ (MOJ 27/06/2018: Para 15 page 7) and based on existing thinking and practice in this field. The development of a national concordat on female offenders at central and local levels by which to coordinate and integrate local efforts and create a best practice framework (MOJ 27/06/2018: Paras 140 and 151 page 35–36 and 39–41). • The publication of an annual update on the progress of the strategy, with the Advisory Board on Female Offenders being given a greater role in monitoring progress. Reactions to the policy document were mixed. It was seen to possess some virtues. Firstly, the recognition in the report of the need for early intervention was applauded. Secondly, the acceptance of a gender-­ informed policy was welcomed, even though it operated with a view of vulnerability as a personal rather than social issue and did not allow for the impact of intersectionality that is the conjunction of protected characteristics (being female and BAME, e.g. as noted by Clinks September 2018). Thirdly, the focus on reducing the female prison population was widely seen as positive. Fourthly, the focus on community provision was

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also welcomed. Fifthly, the move to improve custodial conditions for those women offenders who do need to be imprisoned was seen as positive (see Clinks September 2018). However, there were many telling criticisms. Firstly, the setting out, let alone the implementation of this urgently needed policy had been seriously delayed by political instability and rapidly changing Ministers (Clinks September 2018). Secondly, the policy remained largely ‘aspirational’ demonstrating the tendency, evident since the fall of the Prison Safety and Reform bill before the general election in the summer of 2017, to avoid legislation. This severely weakened important aspects of the policy, for example, the attempts to limit the court use of short prison sentences and the number of women in prison. Instead, there was too heavy an emphasis on guidance, protocols and concordats that remain at best advisory. Thirdly, the paper proposed a hands-off approach for central government, suggesting that policies should be local and partnership based, thus allowing central government to distance itself and raising issues about coordination and differential development. Fourthly, the policy failed to take sufficient regard, for clearly political reasons, of the increasingly negative consequences of the TR reforms for women’s only provision. Finally, the finance proposed in relation to aims to be achieved was inadequate—as WIP noted It is impossible to see how the vision set out in the strategy can possibly be delivered with the pitiful amount of new funding that has been announced. (WIP June 2018)

Corston: 13 Years On What success by March 2020 had been achieved? It has to be noted that, unlike the issue of race, the treatment of women offenders has not stimulated a culture war initiative yet. In order to assess the impact of policy, I will combine the WIP analysis of lacunas to the date of the report (2017), with the six ‘concrete’ proposals in the Female Offender Strategy document and examine the evidence for implementation and impact of each

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in turn, up to March 2020. I will supplement this with the assessment by the Prison Reform Trust (26/04/2021b). The first item concerns better funding for female provision in the penal system in general and especially to enable women’s centres to act as one-­ stop shops in order to prevent entry into the criminal justice system. In his assessment of ‘the Female Offender Strategy one year on’, Edward Argar, Under-Secretary for Justice, indicated in June 2019 that indeed, in the short term, £5m of new funding over two years was to be ‘invested in the community service in 2018/19 and 2019/20’ (House of Commons Statement Argar statement 27/06/2019: see also Beard et al. 2019: 3), but he went on to note that the long-term solution rested with ‘agencies coming together to provide much needed multi-year funding’. This suggested that any funding of women’s centres beyond the initial two-year start-up period, must come from other ‘agencies’ not central government. Although £2.5m of further funding was subsequently provided, according to Lucy Frazer, the Prisons Minister (House of Commons Statements 03/11/2020 and 08/12/2020), it is clear from Clinks that continued funding beyond March 2021 was in doubt (House of Commons Statements 03/11/2020 and 08/12/2020; Clinks February 2021). On the issue of the extension of liaison and diversion (L&D) to divert females away from the criminal justice system, although women offenders benefitted from the great improvements in L&D that occurred generally during the 2010–2020 period, there remained a need to create more specialist, women-centred opportunities. What of the fortunes of the five specialist residential centres for women seen from the start to combine residential services with community support and to act as alternatives to the use of custody for some women offenders? Although clearly variously mandated, with an apparent emphasis on the need for urgency, it was not until May 2020 that it was announced by the MOJ that a residential centre for women offenders as an alternative to custody and acting as a community resource to support other women offenders not in peril of a custodial sentence would be created in Wales. However, a provider and site had not then been identified and the centre was not planned to open until late 2021 (BBC News 05/05/2020; see also Welsh government 05/05/2020). Furthermore, concerns have been expressed about the funding and location of the

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centres (Clinks February 2021) as well as the possibility that such centres, when provided, might result in up-tariffing or widening the net (MOJ 18/06/2019 Farmer Report Page 65). Next we must turn our attention on probably one of the most significant aspects of the female offenders’ strategy, keeping non-violent women offenders out of custody and strengthening community support to enable this. Little by the way of changes to sentencing was achieved. Edward Argar, in the first and only annual progress report on the strategy, suggested a reduction in prison receptions had been achieved for women in 2017–2018 of 10% (House of Commons Statement 12/06/2019: 3). However, such a claim is implausible given the timing of the implementation of the female offender strategy. Table 3.5 in Chap. 3 shows no change in the proportion of women in first prison reception populations (12% in 2015/16 and 2019/20). Table 3.4 in Chap. 3 shows only minor reductions in the female prison population, from 3866 in 2014/15 (4.51% of the prison population) to 3623 in 2019/20 (4.37% of the prison population). Taken together with the first reception data, this indicates that the net effect of any policy change was negligible. During the 2018–2019 period, although much talk occurred about introducing limitations on short prison sentences, nothing material was achieved (see Chap. 3). The Female Offender strategy of 2018 did, however, lead to the five new jails for women proposed in 2017, being cancelled (see Chap. 4). But from July 2019 the mood swung against any such limitations on the court use of short prison sentences and remained largely in place up to March 2020 and beyond. In January 2021, some 30 months after the Female Offender Strategy was published and the five new prisons for female offenders abandoned, there was a clear policy reversal. It was announced that 500 new prison places in the existing women’s prison estate are to be created, justified by reference to a growth in the prison populations due to the expansion of the police force 2019–2020 (MOJ 23/01/2021a; Grierson 23/01/2021; Sodha 28/02/2021; Clinks February 2021). It was recognised in 2019 that the impact of imprisonment on female offenders had unique features and the Farmer inquiry needed to be extended to focus on the issue of family ties and women prisoners. A new Farmer inquiry was set up and reported on 18/06/19. The first Farmer Review Report (MOJ August 2017a) concluded that good relationships

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with families were vital for reducing the reoffending of male prisoners. The second report underlined the increased importance of such contacts for women offenders. In the second report, Farmer supported the development of women’s residential centres, but acknowledged the dangers inherent in this policy, that is such centres could lead to up-tariffing or widening the net. The report recommended the development of safeguards to prevent this and suggested that such accommodation should only be used as a way of solving accommodation problems and providing places for women to live with their children (MOJ 18/06/2019: 65). The report also suggested that support for the families of female offenders and for female offenders themselves was crucial in terms of L&D, whilst women were serving community orders and whilst they were serving prison sentences. Considerations of this kind should be built into how prisons organise visits for female prisoners and allowing for the maximisation of contact by other methods by giving priority to the development of in-cell telephony and ‘purple visits’, that is, prisoner video calls. Two of the recommendations of the female offender strategy concerned the better coordination of women’s services in the criminal justice system. Part of this was a Whole Policy Framework, and the development of a concordat involving all the agencies working in the field. The concordat was finally published in December 2020 (MOJ December 2020c). Finally, the Female Offenders’ Strategy promised the publication of an annual update on the progress of the strategy, with the Advisory Board on Female Offenders (ABFO) being given a greater role in monitoring progress. Edward Argar, as chair of the ABFO, was able to report in June 2019 that indeed the brief of the Board had been extended accordingly. However, beyond the annual report on progress that he gave in June 2019 (House of Commons Statement by Argar 27/06/2019), any talk on this matter has been left to answers given to parliamentary questions (House of Commons Statements by Lucy Frazer 03/11/2020a and 08/12/2020b; PRT 26/04/2021b). The situation by March 2020 may be summed up as follows—funding had become increasingly problematic, progress on important elements of the strategy had been very slow to emerge and the reporting on the development of the strategy to the public and parliament limited. Overall, where policies have been engaged to reduce bias in the penal system, they have failed to have significant impact. The bias of the penal

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system with regard to the socio-economic characteristics of the offender remains largely ignored, dismissed as insignificant or positively useful. A worrying ‘job done’ trend is evident with regard to race, and it seems only a matter of time that this approach is applied to female offenders. Policy on dealing with female offenders has failed to grasp the real issues, slow to progress and increasingly opaque. Bias and discrimination on the basis of poverty, race and gender remain important issues for the penal system.

 ocio-economic, Racial and Gender-Based Bias S and the Penal Crisis By March 2020, the penal system continued systematically to act in a biased way towards poor, BAME and female citizens. This fundamentally undermined any claim to legitimacy that it might otherwise have had as a biased penal system is not just a system. Furthermore, the emergence of a ‘job done’ approach to race is only likely to exacerbate this position and could be applied to gender bias.

Conclusion Overall we must conclude that efforts to mitigate the over-representation of BAME groups and deal with the issues associated with the treatment of female offenders have had limited success. Furthermore, the income-­ deprived and wealth-poor continue to be disproportionately represented in the penal system, with no attempt being made to even recognise, let alone correct the worst excesses of this situation. It is without hesitation that we must conclude that bias and discrimination in the operation of the penal system continue to exist on the basis of being poor, a member of a BAME group and being female and that this contributes to the penal crisis by undermining any claims to legitimacy the penal system might otherwise have, signals the clear limits of accountability and penal policy-­ making and significantly detracts from the quality of justice it delivers. Chapter 7 goes on to critically examine government efforts to manage the new coronavirus pandemic in the penal system.

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References BBC News (05/05/2020) ‘Women offenders: prison alternative to open in Wales first.’ Beard, J Lalic, M and Holland S (2019) Female offender strategy: one year on HoC Debate Pack No CDP-2019-0204 23/07/2019 @ https://commonslibrary.parliament.uk/research-­briefings/cdp-­2019-­0204/ Benn, M (2000) New Labour and Social Exclusion, The Political Quarterly 71/3: 309–318. Campbell, D (05/07/2021) ‘The number of NHS psychiatric beds down by 25% since 2010, analysis shows’, The Guardian. Clinks (September 2018) Briefing on the MOJ female offender strategy @ https://www.clinks.org/sites/default/files/2018-­10/clinks_briefing_on_the_ female_offender_strategy.pdf Clinks (February 2021) The latest on the female offender strategy @ https:// www.clinks.org/community/blog-­p osts/latest-­f emale-­o ffender-­s trategy-­ prison-­expansion-­vs-­community-­solutions Corston Report (2007) A review of women with particular vulnerabilities in the criminal justice system@ https://www.basw.co.uk/resources/corston-­report Crenshaw, K (1989) ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics,’ University of Chicago Legal Forum, University of Chicago Law School, 139–186. Dodd, V (03/06/2020) ‘Met police twice as likely to fine black people over lockdown breaches- research’ The Guardian. Frazer-Carroll, M (03/05/2021) ‘The Covid fines paint a bleak picture of pandemic policing that is going to get worse,’ The Guardian. Geronimus, A T (1992) ‘The weathering hypothesis and African-American women and infants, evidence and specification’, Ethnicity and Disease, 2(3): 207–221. Gold, M (1966) ‘Undetected delinquency activity,’ Journal of Research in Crime and Delinquency, 3: 27–46. Grierson, J (23/01/2021) ‘Ministers criticised for plans to create 500 new UK prison places for women,’ The Guardian. Hopkins, K (11/03/2012) The pre-custody employment, training and education status of newly sentenced prisoners, Surveying Prisoners Crime Reduction @ https://assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/278832/newly-­sentenced-­prisoners.pdf

6  Bias and Discrimination in the Penal System 

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House of Commons Justice Select Committee (26/03/2019) Oral Evidence: Progress on the implementation of the Lammy recommendations @ http:// data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/justice-­committee/progress-­in-­the-­implementation-­of-­the-­lammy-­ reviews-­recommendations/oral/98717 House of Commons Statement (27/06/2019) Edward Argar: Female Offender Strategy—First Anniversary at https://questions-­statements.parliament.uk/ written-­statements/detail/2019-­06-­27/HCWS1662 House of Commons Statement (03/11/2020a) Lucy Frazer on The Female Offender Strategy, Hansard Vol 683 @ https://hansard.parliament.uk/ Commons/2020-­1 1-­0 3/debates/8904E1A7-­7 6B6-­4 173-­B 68D­90BAED8A763C/FemaleOffenderStrategy House of Commons Statement (08/12/2020b) Lucy Frazer: on The Female Offender Strategy, Theyworkforyou @ https://www.theyworkforyou.com/ debates/?id=2020-­12-­08b.702.1 Howard League for Penal Reform (08/09/2017) ‘Explain or Reform’ @ https:// howardleague.org/news/explain-­o r-­r eform-­h oward-­l eague-respondsto-­lammy-­review/ Institute of Fiscal Studies/Bourquin, P, Joyce, R and Norris Keiller, A (June 2020) Living standards, poverty and inequality in the UK: 2020 @ https:// www.ifs.org.uk/uploads/R170-­Living-­standards-­poverty-­and-­inequality-­in-­ the-­UK-­2019-­2020%20.pdf Janetta, J Breaux, J and Ho, H (April 2014) Examining Racial and Ethnic disparities in Probation Revocation @ https://www.urban.org/sites/default/files/ publication/22746/413174-­Examining-­Racial-­and-­Ethnic-­Disparities-­in-­ Probation-­Revocation.PDF Justice (2020) Increasing judicial diversity @ https://files.justice.org.uk/wp-­ content/uploads/2020/01/06170028/Judicial-­Diversity-­Update-­Report.pdf Lammy Review Report (September 2017) @ https://www.gov.uk/government/ publications/lammy-­review-­final-­report Lukes, S (2005) Power: A Radical View, Red Globe Press: London. MOJ (December 2007) Government response to the Report of Baroness Corston of a Review of Women with Particular Vulnerabilities in the Criminal Justice System @ https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/243150/7261.pdf MOJ (November 2010) Compendium of reoffending statistics and analysis @ https://assets.publishing.service.gov.uk/government/uploads/system/ uploads/attachment_data/file/199224/compendium-­o f-­r eoffending-­ statistics-­and-­analysis.pdf

294 

C. D. Skinns

MOJ (August 2017a) Farmer Review Report: The Importance of Strengthening Prisoners’ Family Ties to Prevent Reoffending and Reduce Intergenerational Crime @ https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/642244/farmer-­review-­report.pdf MOJ (19/12/2017b) Government Response to the Lammy Review @ https:// www.gov.uk/government/publications/lammy-­review-­government-­response MOJ (27/06/2018) Female Offender Strategy @ https://www.gov.uk/government/publications/female-­offender-­strategy MOJ (18/06/2019) Farmer Review for Women: The Importance of Strengthening Female Offenders’ Family and other Relationships to Prevent Reoffending and Reduce Intergenerational Crime @ https://assets.publishing.service.gov. uk/government/uploads/system/uploads/attachment_data/file/809467/ farmer-­review-­women.PDF MOJ (February 2020a) Tackling racial disparity in the Criminal Justice System: 2020 update @ https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/881317/tackling-­r acial-­d isparity-­ cjs-­2020.pdf MOJ (November 2020b) Judicial Diversity Statistics @ https://www.gov.uk/ government/statistics/diversity-of-the-judiciary-2020-statistics MOJ (December 2020c) The concordat on Women in or at risk of contact with the Criminal Justice System @ https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/953197/women-­at-­ risk-­cjs-­concordat.pdf MOJ (23/01/2021a) Press Release: ‘Extra funding for organisations that steer women away from crime’ @ https://www.gov.uk/government/news/extra-­ funding-­for-­organisations-­that-­steer-­women-­away-­from-­crime MOJ (02/12/2021b) Statistics on the Criminal Justice System 2020 @ https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/1037903/Statistics_on_Ethnicity_and_the_Criminal_ Justice_Sysytem_2020.pdf MOJ/HMPPS (July 2020) HMPPS Annual Digest @ https://assets.publishing. service.gov.uk/government/uploads/system/uploads/attachment_data/ file/905580/HMPPS-­annual-­digest-­2019-­20.pdf National Police Chief ’s Council (27/07/2020) ‘Analysis of coronavirus fines published’ @ https://news.npcc.police.uk/releases/independent-­analysis-­of-­ coronavirus-­fines-­published Office for National Statistics (10/09/2019) Employment in the UK @ https:// www.ons.gov.uk/employmentandlabourmarket/peopleinwork/employmentandemployeetypes/bulletins/employmentintheuk/august2019

6  Bias and Discrimination in the Penal System 

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Office for National Statistics (22/07/2020a) Household income inequality UK: year ending March 2020 https://www.ons.gov.uk/peoplepopulationandcommunity/personalandhouseholdfinances/incomeandwealth/bulletins/householdincomeinequalityfinancial/financialyearending2020provisional Office for National Statistics (02/11/2020b) Data on income and employment status of those in prison @ https://www.ons.gov.uk/aboutus/transparencyandgovernance/freedomofinformationfoi/incomeandemploymentstatusofthosearrestedandinprison Office for National Statistics (31/03/2021) Income and employment data on those arrested and in prisons @ https://www.ons.gov.uk/aboutus/transparencyandgovernance/freedomofinformationfoi/publishedrequests?sortBy=relea se_date&query=prisoners&fromDateDay=&fromDateMonth=&fromDate Year=&toDateDay=&toDateMonth=&toDateYear=&size=10 Office of Population Censuses and Statistics (1992) Dodd, T and Hunter, P National Prisoner Survey 1991, London: HMSO. Piketty, T (2020a) Capital and Ideology, Cambridge: Belknap Press of Harvard University. Piketty (2020b) Capital and Ideology: Supplementary tables @ http://piketty. pse.ens.fr/fr/ideology Prison Reform Trust (08/09/2017) Comment on the Lammy Review Report @ http://www.prisonreformtrust.org.uk/PressPolicy/News/vw/1/ItemID/471 Prison Reform Trust (Winter 2021a) Bromley Briefing @ http://www.prisonreformtrust.org.uk/Portals/0/Documents/Bromley%20Briefings/Winter%20 2021%20Factfile%20final.pdf Prison Reform Trust (26/04/2021b) @ http://www.prisonreformtrust.org.uk/ PressPolicy/News/vw/1/ItemID/1011 Prison Service Pay Review Body Report 2019/20 (July 2020) Nineteenth Report @ https://assets.publishing.service.gov.uk/government/uploads/system/ uploads/attachment_data/file/902437/CCS0420455368-­0 01_PSPRB_ 2020_Web_Accessible.pdf Pyper, D (May 2021) Race and Ethnic Disparity, House of Commons Briefing Paper 8960 @ https://commonslibrary.parliament.uk/research-­briefings/ cbp-­8960/ Reiner, R (2007) Law and Order, Cambridge: Polity Press. Reiner, R (2016) Crime, Cambridge: Policy Press. Social Exclusion Unit (SEU) (2002) Reducing re-offending by ex-prisoners @ https://www.bristol.ac.uk/poverty/downloads/keyofficialdocuments/ Reducing%20Reoffending.pdf

296 

C. D. Skinns

Sodha, S (28/02/2021) ‘To expand women’s prisons is idiotic and inhumane. We should phase them out,’ The Guardian. Standing, G (2016a) Meet the precariat, World Economic Forum @ https:// www.weforum.org/agenda/2016/11/precariat-­global-­class-­rise-­of-­populism/ Standing, G (2016b) The Precariat, London: Bloomsbury Travis, A (31/10/2013) ‘“Go home” vans led to 11 people leaving the country says report,’ The Guardian. UK Government (11/05/2021) The Queen’s Speech 2021 @ https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/986770/Queen_s_Speech_2021_-­_ Background_ Briefing_Notes.pdf Weber, M (1967) ‘Class, Status and Party’ in Gerth, H H and Mills, C Wright (eds) From Max Weber, London: RKP. Welsh Government (05/05/2020) Female offenders to get residential centre in Wales @ https://gov.wales/female-­offenders-­get-­residential-­centre-­wales Women in Prison (2017) The Corston Report 10 Years on @ https://www.mappingthemaze.org.uk/wp/wp-­content/uploads/2017/08/corston-­report-­10-­ years-­on.pdf Women in Prison (June 2018) MOJ’s new strategy for women @ https://www. womeninprison.org.uk/news/ministry-­of-­justices-­new-­strategy-­for-­women Yasin, B and Sturge, G (October 2020) Ethnicity and the Criminal Justice System, House of Commons Library at https://commonslibrary.parliament. uk/ethnicity-­a nd-­t he-­c riminal-­j ustice-­s ystem-­w hat-­d oes-­r ecent-­d ata-­ say/#:~:text=In%202019%2C%20according%20to%20the%20 Annual%20Population%20Survey,in%20prison.%20The%20conviction%20ratio%20and%20sentence%20lengths

7 The Pandemic and the Penal System

Introduction The new coronavirus created a genuine, albeit not altogether unprecedented, exceptional moment both for broader society and the penal system that needed to be reflected in the structure of this book. As a consequence, Chaps. 3, 4, 5 and 6 critically examined the policies of successive Conservative governments concerning courts, prisons and probation and bias in the penal system, from the time of the election of the first Conservative administration in May 2015 to early March 2020, just before the outbreak of the new coronavirus pandemic. This chapter provides a critical examination of the second Johnson government’s management of the new coronavirus in the penal system and thus acts as a conclusion to Chaps. 3, 4, 5 and 6 by progressing the examination of penal policy from early March 2020 to the summer of 2021, relying on published documents up to December 2021. The chapter has two main sections: the first section deals with the broader context, by setting out and critically assessing government efforts to manage the new coronavirus pandemic in England, and the second section focuses on how the second Johnson government handled the pandemic in the penal system in England and Wales and assesses whether its policies were successful in their own terms and whether they exacerbated the material and moral aspects of the penal crisis. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 C. D. Skinns, Conservative Government Penal Policy 2015–2021, https://doi.org/10.1007/978-3-031-00797-2_7

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The Pandemic and England and Wales This section offers comments on the spread of the new coronavirus, the measurement of deaths and infections associated with it and government policy intended to manage the pandemic in broader society.

The Spread of the Virus in England and Wales On 31/01/2020 China first informed the World Health Organisation (WHO) of the discovery of an unusual form of pneumonia in Wuhan (WHO 12/01/2020). The virus involved in the outbreak was first identified in China on 07/01/2020, as part of a family of the coronavirus and was later designated as a new coronavirus, SARS-CoV-2 and, on 11/02/2020, the disease that it caused was named COVID-19 (McKie 12/04/2020; Spiegelhalter and Masters 2021b:16). SARS-COV-2 is highly contagious, spread by droplet and/or aerosol (WHO 20/10/2020: Spiegelhalter and Masters 2021b: 25) and had an initial reproduction number (R0 value) of 2.9 (with a range of 2.4–3.4) (compared to 1.3 for influenza), with an estimated infection fatality rate of 1.15% (compared with 0.1% for most forms of seasonal influenza) and a greater admission to hospital rate than seasonal influenza (Xie et al. 15/12/2020; Spiegelhalter and Masters 14/02/2021a, 2021b: 26, 116 and 147–8). The disease caused by the new virus, COVID-19, has been shown to be more severe for males, people aged 70 and over, the healthcompromised and those living in material deprivation (Public Health England June 2020b; Spiegelhalter and Masters 2021b: Chapter 13). The virus is subject to a natural process of mutation wherever infection is extensive in the population and/or long-lived in those infected. To December 2021, there have been three variants of concern (beta, delta and omicron). The emergence of a new variant always presents the threat that it might be more easily transmissible, more resistant to either infection- or vaccine-induced immunity, and have a higher infection fatality rate, than the previously known variants (John Hopkins University School of Medicine 2020, no month; Spiegelhalter and Masters 2021b: 35–36; Sridhar 28/11/2021).

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Due to the initial and persistent problems of measuring infection rates, because of severe limitations on the availability of testing, this account mainly focuses on ONS statistics relating to deaths ‘involving COVID-19’, where ‘COVID-19 was mentioned on the death certificate, whether as an underlying cause or not’ (ONS  31/03/2020). However, when testing became more readily available and the link between infection and death was weakened by the vaccination programme in the UK, with some 67% of people over 16 having received a double dose in England and 74% in Wales and 87% of people aged 16 and over having received one dose in England and 90% in Wales by 14/07/2021 (BBC News 19/07/2021b), it became necessary to also refer to infection rates, especially for the period from the summer of 2021, although even this proved to be fragile, given that the early summer rise in known infections apparently became truncated, possibly as a result of the closing of schools for the summer holidays and the cessation of associated systematic testing that resulted (Sample 26/07/2021). All pandemic statistics used are provisional. The first death officially attributed to COVID-19 occurred in China on 11/01/2020, the World Health Organisation declared a global health emergency on 30/01/2020 and a pandemic on 11/03/2020. The first COVID-19 death in England and Wales probably occurred as early as 30/01/2020, although was not officially recorded as such (Weaver 21/03/2021; Department of Health and Social Care 05/03/2020; Lydall 15/09/2020; Spiegelhalter and Masters 2021b: 18). The Office for National Statistics (ONS) data on deaths ‘involving COVID’ in England and Wales, reveals that up to the week ending 20/08/2021 there have been two peaks in fatalities ‘involving COVID-19’, one in March to June 2020 causing 49,607 deaths (during what I have deemed phase 1) and a more prolonged peak running from late November 2020 to late March 2021 (phases 4–6) causing a further 76,239 deaths involving COVID-19, with total deaths involving COVID-19, up to the week ending 20/08/2021 of 142,309 (see Table 7.1 in this chapter). Infection data suggest a possible third peak of infections in the summer of 2021. Infections, very inaccurately measured in mid-April 2020, reached an apparent daily rolling average of 5195 of new infections. A second peak of infections better, but still inaccurately measured, was

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Table 7.1  Provisional deaths ‘involving’ COVID-19 in England and Wales January 2020 to August 2021

Phase

Week Nos/ dates

Pre-pandemic phase January– 1–10 March 2020 03/01/20 to 06/03/20 Phase 1 March–June 2020 Weeks 11–14 Inaugural national lockdown 13/03/20 to (LD) introduced 26/03/20 03/04/20 Inaugural national LD Weeks 15–18 continued with some 10/04/20 to modifications 01/05/20 As above0 Weeks 19–22 08/05/20 to 29/05/20 As above. Inaugural national Weeks 23–26 LD ended 15/06/20 05/06/20 to 26/06/20 Totals – Phase 2 July–September 2020 Weeks 27–30 ‘Summer holiday’ opening up 03/07/20 to Local restrictions applied 24/07/20 Local restrictions extended Weeks 31–34 31/07/20 to 21/08/20 As above Weeks 35–38 28/08/20 to 18/09/20 Totals – Phase 3 September– November 2020 Restrictions made more formal and widespread and began to resemble a national LD. Pre-Xmas national LD introduced 03/11/20 Totals

Weeks 39–42 25/09/20 to 16/10/20

Weeks 43–46 23/10/20 to 13/11/20 –

Deaths ‘involving COVID-19’

Total of deaths ‘involving COVID-19’

0

0

4122

4122

29,243

33,365

12,151

45, 516

4091

49,607

Total Phase 1: 49,607 1410

Totals Phase 1: 49,607 51,017

622

51,639

417

52, 056

Total Phase 2: 2449 1644

Total Phases 1 and 2: 52,056 53,700

6760

60,460

Total Phase 3: 8404

Total Phases 1–3: 60,460 (continued)

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Table 7.1 (continued)

Phase Phase

Week Nos/ dates Week Nos/ dates

Phase 4 November–December Weeks 47–50 2020 20/11/20 to ‘Pre-Xmas’ national LD 11/12/20 followed by ‘Xmas’ opening up from early December 2020, but with some restrictions. Vaccination programme began 08/12/20. Totals Phase 5 December, 2020– Weeks 51–1 January 2021 18/12/20 to ‘Xmas’ opening up continued 08/01/21 until 03/01/21, thereafter new ‘Winter’ LD announced, similar to inaugural LD. Totals – Phase 6 January–March 2021 ‘Winter’ national LD ‘Winter’ national LD continued

Weeks 2–5 15/01/21 to 05/02/21 Weeks 6–9 12/02/20 to 05/03/21

‘Winter’ national LD Weeks 10–13 continued 12/03/21 to ‘Vaccine’ opening-up planned 02/04/21 in four stages Stage 1 March 2021 began with pupils returning to school 08/03/21 Stage 2 vaccine opening up continued with, from 29/03/21, the ‘stay at home rule’ lifted.

Deaths ‘involving COVID-19’

Total of deaths ‘involving COVID-19’

Deaths ‘involving COVID-19’ 11,328

Total of deaths ‘involving COVID-19’ 71,788

Total Phase 4: 11,328 15,099

Total Phases 1–4: 71,788 86,887

Total Phase 5: 15,099 31,440

Totals Phases 1–5: 86,887 118,327

14,789

133,116

3583

136,699 Totals deaths involving COVID-19 during phases 4–6: 76,239

(continued)

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Table 7.1 (continued)

Phase

Week Nos/ dates

Totals

Phase

Week Nos/ dates

Phase 7 April–July, 2021 ‘Vaccine’ opening up continued. After 12/04/21 the opening up of ‘non-essential’ shops, pubs and internal travel was allowed Stage 3 April to May 2021 ‘Vaccine’ opening up continued. Stage 4 Full opening up planned for 21/06/21 but delayed for four weeks Full opening up allowed from 19/07/2021.

Weeks 14–17 09/04/21 to 30/04/21

Totals Phase 8 Immediate post-opening up four-week period. Totals

Weeks 18–21 07/05/21 to 28/05/21 Weeks 22–25 04/06/21 to 25/06/21

Deaths ‘involving COVID-19’

Total of deaths ‘involving COVID-19’

Total Phase Total Phases 1–6: 6: 49,812 136,699 (Total deaths phases 4-6; 76,239) Deaths Total of deaths ‘involving ‘involving COVID-19’ COVID-19’ 1206 137,905

482

138,387

383

138,770

Weeks 26–30 837 02/07/21 to 23/07/21 404 – Total Phase 7: 2908 Weeks 30–33 2702 30/07/2021 to 20/08/2021 – Total Phase 8: 2702

139,607

Total Phase 1–7: 139,607 142,309

Total Phase 1–8: 142,309

Source: Adapted from Baker and Kirk-Wade (30/04/2021) and ONS (12/12/2021e)

evident in early January 2021 and reached a daily rolling average of 64,011 new infections. A third peak, more accurately measured (but see my comment above), starting in early summer 2021, reached a daily rolling average of 51,870 new infections by July 2021 (UK Government

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27/07/2021) at about the time that the Westminster government introduced full ‘opening up’, which took effect on 19/07/2021. The omicron variant has subsequently produced a further peak of infections. Although limited by various definitional differences and other limitations (e.g. because of not using age-standardised mortality), preliminary international comparisons provided by ‘The Guardian’ using ‘deaths attributed to COVID-19’ per million of population, suggested in late July 2021, that the UK has experienced relatively high COVID-19 death rates (1908 per one million of population) in comparison with other European countries, with a rate lower for only Belgium (2177) and Italy (2118), but higher than most other such states including Spain (1742), France (1697), Portugal (1699), Sweden (1451), Luxembourg (1313), Switzerland (1260), Greece (1239), Germany (1094), the Netherlands (1040), Ireland (1020), Denmark (440) and Finland (177) and more widely, USA (1849), Canada (703), Australia (36) and New Zealand (5) (‘The Guardian’ 27/07/2021). As Spiegelhalter and Masters (2021b: 145) conclude ‘the UK has not done well’, although they also remark that ‘it is still too soon to draw definitive conclusions’.

Government Policy and the Pandemic in England Responsibility for the management of the outbreak was devolved to the four administrations of the UK. In my discussion I will not dwell on the differences between the Welsh devolved administration’s and the Westminster government’s responses to the pandemic, except to note that the Welsh devolved administration’s response was nimbler in imposing lockdown when infection levels rose and decidedly more cautious when deciding to open up when the death rates began to fall, and therefore less clumsy and more consistent and coherent in approach. My analysis of government policy here builds on the breakdown suggested by Baker and Kirk-Wade (30/04/2021) and indicates eight phases for England, excluding the pre-pandemic period, January to early March 2020 viz:

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Phase 1. ‘Initial Lockdown’, mid-March to late June 2020, including the first peak of COVID-19 deaths. Phase 2. ‘Summer holiday opening up’, July to mid-September 2020. Phase 3. ‘Widening restrictions’, mid-September to mid-November 2020. Phase 4. ‘Pre-Xmas lockdown’, mid-November to mid-December 2020. Phase 5. ‘Xmas opening up’, mid-December 2020 to early January 2021. Phase 6. ‘Winter lockdown’, early January to March 2021, including the second peak of COVID-19 deaths and the first two stage of ‘vaccine opening’ up in March. Phase 7. ‘Vaccine opening up’ continued and extended, April–July 2021, containing the three remaining opening-up stages: • April 2021, • April–May 2021, and • May–July 2021 (the original opening up date of 14/06/2021 was delayed for four weeks to 19/07/2021 in England and this period contained part of the apparent third peak of infections BBC News 14/06/2021a). Phase 8. Full opening up from 19/07/2021.

 e Response of the Westminster Government to the Pandemic Th in England 2020–2021 The response of the Westminster government was linked to two, related aims, ‘health’ and ‘wealth’. The first aim, ‘health’, was to minimise or be seen to minimise COVID-19-related infections and deaths in the population. The second aim, ‘wealth’, was to maximise economic activity. In normal times the maximisation of health outcomes, subject to safety at work rules, may be seen as compatible with economic activity maximisation. However, during a pandemic caused by a virus which is spread by droplet and aerosol, the minimisation of infections and deaths was not compatible with the maintenance of normal economic activity. During February 2021, the Westminster government was faced with choosing between two ideal-type strategies by which to manage the

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pandemic, later articulated by Ferguson et al. (16/03/2020), in a policy advice paper submitted to the government Scientific Advisory Group for Emergencies (SAGE). The analytical clarity of Ferguson et  al.’s paper should not be allowed to airbrush away the political reality, of a new, inexperienced, ideologically strait-jacketed government, led by a pragmatic Prime Minister, struggling to come to terms with the pandemic caused by the new coronavirus, especially as the hard reality of deaths and infections made it difficult to fill the gap between expectations and actual experience by vagueness about targets and active impression management. The first strategy that Ferguson et al.’s (16/03/2020) paper articulated was based on ‘mitigation’ or herd immunity. This policy type focused on slowing, but not stopping the pandemic spread, ‘reducing peak healthcare demand while protecting those most at risk of severe disease from infection’ (page 1). The model was rooted in two appealing features for the Johnson government: firstly, individual choice—the speed of the spread of the virus was to be mitigated by voluntary lockdown of vulnerable groups and the voluntary self-isolation of individuals with symptoms—and, secondly, economic activity (including the operation of industry, commerce and education) could continue as near to normal as possible without the need for closures, home working, internal movement restrictions and heightened border controls). In the short term, the mitigation of the speed of spread of the virus would limit peak National Health Service (NHS) demand (‘by two thirds’ according to Ferguson et al. 16/03/2020: 1), thereby protect the NHS and allow most economic activity to continue. In the medium term ‘herd immunity’ would protect the whole community, after an estimated 60–80% of the population had been infected and thus further sustain economic activity. It is clear that, on the balance of probabilities, the ‘mitigation’ or ‘herd immunity’ model was the basis of early government attempts to deal with the virus. This was revealed by statements from Professor David Halpern, Head of the government-run Behavioural Insights Team, Sir Patrick Vallance, Chief Scientific Adviser to the government, subsequent whistleblowing from the not entirely objective Dominic Cummings, the then sacked special adviser to the PM, in a rash of Tweets in May 2021 and supported by the report of the House of Commons Health and Social Care and Science and Technology Committees published in October

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2021 (BBC News 24/09/2020c; Stewart and Busby 13/03/2020; Cummings May 2021, see especially Tweets 38–56; and House of Commons Health and Social Care and Science and Technology Committees 12/10/2021). Mitigation/herd immunity had clear advantages to those of neo-liberal views (for a full development of the notion of neo-liberal ideology see Chap. 8), who prioritised wealth over health. But as Ferguson et al. 2020 made very clear, the strategy would be very unlikely effectively to protect the vulnerable as adherence would indeed be voluntary, though care homes might be ‘cocooned’ (even if they were not, until too late). Even so, the fatalities, given the 1.15% death rate noted above, associated with the policy would be between 250,000 and 500,000 according to Ferguson et al. (16/03/2020: 16). Furthermore, the stance was unlikely to be compatible with the policies adopted by the World Health Organisation or other countries. It was also unlikely to be effective given questions about the longevity of any disease- or vaccine-induced immunity (Andrew Costello quoted by Boseley 13/03/2020). The quick shift from herd immunity to suppression has either been denied altogether or been accounted for by the Westminster government as simply a response to changing scientific advice based on developing discoveries and changing conditions on the ground regarding COVID-19 infections and deaths. But the reality is more complex. It is highly unlikely that the official opposition played any part in the decision, as the Labour Party was in the midst of a distracting leadership election. There can be little doubt that the possibility of so many COVID-19 deaths on the government’s watch and directly connected to their handling of the pandemic was a factor that led to a change in heart and this necessarily meant that they had to compromise their neo-liberal views, leaving them open to critical zealotry from within the right-wing movement. The second policy option identified by Ferguson et al. 2020 was based on ‘suppression’. This model ‘aims to reverse epidemic growth, reducing case numbers to low levels and maintaining that situation indefinitely’ (Ferguson et al. 16/03/2020: 1). It would ‘minimally require a combination of social distancing of the entire population, home isolation of cases and household quarantine of their family members [and would] … need to be supplemented by school and university closures’ (Ferguson et  al. 16/03/2020: 1–2).

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However, the ‘major challenge’ of the suppression model was that: this type of intensive intervention package … will need to be maintained until a vaccine becomes available … —given that we predict that transmission will quickly rebound if interventions are relaxed. We show that intermittent social distancing … may allow interventions to be relaxed temporarily in relative short time windows, but measures will need to be reintroduced if or when case numbers rebound’. (Ferguson et  al. 16/03/2020: 2)

Furthermore, whereas the suppression model had been shown to work (in China and South Korea) in the short term, ‘it remains to be seen whether it is possible long-term, and whether the social and economic costs of the interventions adopted thus far can be reduced’ (ibid.). To be clear this meant that the suppression model would set severe and prolonged limits on economic activity. A policy best described as a form of intermittent suppression was hastily adopted by both English and Welsh administrations (and indeed in Scotland and Northern Ireland) and the ensuing period has been characterised by a Westminster government policy that is clumsy, incoherent, inconstant, arbitrary and ultimately, probably, ineffective in England. Clumsy: there have been many and frequent examples of clumsiness and stumbling including the initial lack of preparedness, despite various previous modelling exercises concerning the impact of epidemics, like Operation Cygnus in 2016 (Institute of Government March 2021); the lack of resilience of various public services (NHS, social care and public health) at the time of the outbreak in 2020, after years of austerity-based cuts in terms of staffing and facilities (Kings Fund 05/11/2020; Kings Fund 24/03/2021; Hunt 13/07/2020) and the deprived state of courts, prisons and probation resulting from ten years of austerity (see Skinns 2016 and Chaps. 3, 4 and 5 of this book); shortages of essential equipment, for example, personal protection equipment for health and social care staff and ventilators for intensive care wards (National Audit Office 12/06/2020a and 25/11/2020b; House of Commons Public Accounts Committee February 2021a: 3); the very slow development of an adequate test and trace system (House of Commons Public Accounts

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Committee March 2021b; House of Commons Health and Social Care and Science and Technology Committees 12/10/2021); the failure to close UK borders, in a timely manner, in the light of the spread of new variants of SARS-COV-2, for example, the less than timely closure of entry to people travelling from India despite the spread there of the highly infectious delta variant (Booth and Sample 16/03/2021; Allegretti 16/04/2021); the timeliness and adequacy of any protection extended to care homes (NAO 12/06/2020a; House of Commons Health and Social Care and Science and Technology Committees 12/10/2021); the actual role that scientific advice played in key decision-making (Booth and Sample 16/03/2021); the accuracy or otherwise of government data presentation, for example, testing data (British Medical Journal Editorial 2020, 369; House of Commons Health and Social Care and Science and Technology Committees 12/10/2021); the abandonment of the publication of comparisons between infection and death rates in the UK and other countries from May 2020 (Jones 12/05/2020); and the creation of a number of additional, ‘Nightingale’ hospitals at a cost of £500m, only to make little use of them because of entirely foreseeable essential shortages of staff, like the 400-bed facility at the London Excel centre which treated 54 patients during the first wave of the pandemic before being effectively mothballed (Spiegelhalter and Masters 2021b: 80). Incoherent: lack of clarity has characterised government essential messages (Institute of Government March 2021 ibid.; House of Commons and House of Lords Joint Committee on Human Rights 21/04/2021: 3) including confusion over the 65 changes made to the coronavirus regulations, government guidance differing from the law as stated and ministerial statements offering further sources of confusion over the coronavirus regulations, government guidance on foreign holidays; confusion over the ‘final’ opening up (see Elgot 13/07/2021b) and of government policy generally, in the light of the inconstancy noted next. Inconstant: the period has been a part-blindfolded roller coaster ride of delayed lockdown and premature or even arguably completely unjustified, opening up, often in situations where it was not clear what regulations applied to whom and when, with yet another such debate emerging in October 2021 on whether the rising infection and hospitalisation rates

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justified a movement away from the then adopted stance of full opening up (Booth and Sample 16/03/2021; BBC News 25/10/2021d). Arbitrary: policy has throughout been characterised by a tendency to limit parliamentary scrutiny and decision-making (over the coronavirus regulations, for example); to limit public scrutiny in relation to actions taken to deal with the virus including over contracts given out in this period as well as a refusal to appoint a timely public inquiry into government handling of the pandemic (Elgot 18/02/2021a; Busby 20/02/2021; Dorrell 18/03/2021; Booth 11/05/2021); the accuracy or otherwise of government data presentation, for example, testing data ((BMJ Editorial 2020: 369) and the abandonment of the publication of comparisons between infection and death rates in the UK and other countries from May 2020 (Jones 12/05/2020); issues connected to the due diligence stewardship of public money regarding contracts issued during the pandemic, business loans provided and furlough monies paid out, with some £26bn likely to be written off (House of Commons Public Accounts Committee February 2021a: 3: House of Commons Public Accounts Committee 19/07/2021c: 3); and lack of concern about the differential impact of the virus on ethnic minority and/or deprived communities (Booth and Sample 16/03/2021) and the differential application of the coronavirus regulations to ethnic minority and/or deprived communities (National Police Chief ’s Council 27/07/2020; Frazer-Carroll 03/05/2021). Ineffective: there are two ways of establishing the success or otherwise of the government handling of the COVID-19 pandemic closely related to the aims outlined above, namely, ‘health’ that is the minimisation of infections and deaths and ‘wealth’ that is the maximisation of economic activity. With regard to ‘health’, as noted above, UK COVID-19-related death rates seem to be high in comparison to other similar countries. Furthermore, the pandemic and the government handling of the pandemic has resulted in a significant number of ‘excess’ deaths related to changes to health and social care made as a result of the pandemic and the health impacts provided resulting from social distancing and the management of the economy (see the Office of National Statistics FOI Response

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16/06/2021b; House of Commons Health and Social Care and Science and Technology Committees 12/10/2021). However, one positive aspect of government pandemic policy may be noted here, subject to certain caveats, namely, the stimulation of the development of a vaccine and the proactive purchase of a number of different vaccines whilst still experimental enabling rapid development, fast track approval and rapid roll-out of the inoculation process—with, as noted above, more than three-quarters of the adult population in the UK having received at least one dose of the vaccine by July 2021 (Gov.UK 02/02/2022), even if this is tempered by two factors. Firstly, doubts emerging about the ability of the vaccines to prevent the spread of the disease, as opposed to reduce the likelihood of serious illness, the need for hospitalisation and deaths. Secondly, the serial attempts by the British PM to annex this success as a product of greed and the operation of the free market (Allegretti and Elgot 24/02/2021), when 97% of funding provided, for example, for the Astra Zeneca project, came from public bodies (see Cross et al. April 2021). So although a major gain, this was not one that was compatible with neo-liberal ideas about the free market. The second aim, ‘wealth’, defined as the preservation of economic activity, needs some further comment, determining how economic activity is best measured and what happened to it in the UK compared with other nations. Economic activity (output) is usually measured by Gross National Product (GDP). Two conclusions can be drawn from ONS data on the subject. Firstly, according to the ONS (10/09/2021d) UK GDP declined markedly in the early months of the pandemic reaching a low of 76.4093 in April 2020. Secondly, the reduction in GDP has been prolonged and GDP had not returned to pre-pandemic levels by August 2021. GDP increased from April 2020, reaching 95.0881 in December 2020. In 2021, a slight decline during the second pandemic peak was evident in January 2021 after which GDP increased again to 99.1459 in July 2021, but even then it remained 2.1% below the February 2020 pre-­ pandemic level. In August 2021, GDP remained at 99, meaning that it had plateaued and still remained below pre-pandemic levels (ONS 13/10/2021f ). International comparison suggests that:

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‘Among G7 countries (the UK, Canada, Italy, Germany, Japan, France and the USA), the UK economy experienced the largest contraction in volume GDP over the first six months of 2020. The 8.6% shortfall in volume GDP as of the end of Quarter 3 2020 relative to its pre-coronavirus level… is the largest of the G7 countries….’ (ONS 01/02/2021a). It has to be noted that the validity of international comparisons is weakened by the use of different ways of measuring GDP. However, even when some elements of this are taken into account ‘the UK has still experienced the largest contraction but that the relative comparison with the rest of the G7 is not as large’. (ONS 01/02/2021a)

This was despite the other key positive element of the government pandemic policy, the setting up of a Keynesian-inspired, costly, long-­ lasting furlough scheme (see Francis-Devine and Ferguson March 2021), an extra payment of £20 per week for all people on Universal Credit and some support for the self-employed and businesses, mitigated by concerns about the due diligence exercised when the schemes were set up and how they have been administered to prevent fraud (see Francis-Devine and Ferguson March 2021). Again this was a major advantage, but one that was entirely incompatible with government thinking on the value of the free market and the dangers of state intervention. The policy also tacitly acknowledged that the hostile environment that had been created over ten years, for the ‘undeserving’ recipients of Universal Credit, was entirely too problematic to impose on the ‘deserving’ unemployed created by the impact of the pandemic and government regulations concerning social mixing and the closure of companies. How can the lack of effectiveness of government pandemic policies be accounted for? ‘Data’, as this populist government has dubbed scientific evidence, is only part of the story and even this can be manipulated in terms of whether it is presented at all, and then how and when. The ineffectiveness of pandemic policy is not able to be attributed to yielding under the overwhelming influence of the official opposition, partly because the government had a majority of 80 in the Commons after the general election of December 2019 and partly because Labour, under their new leader, Keir Starmer, adopted a generally supportive and weakly critical position on government policy on the matter.

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Instead, the inconstancy can be attributed to a battle for support, from within the Conservative government, and the party in the country and outwith this in the broader right-wing movement, focused around a Taliban-like insistence on adherence to neo-liberal orthodoxy. Two not unrelated issues, acted as touchstones for this conflict, all closely connected to neo-liberal ideology (see Chap. 8). Firstly, conflict was evident over whether the government should pursue a policy that prioritised ‘health over wealth’ (leading to longer lockdowns and probably lower COVID-19 death rates, but depressed economic activity) or ‘wealth over health’ (leading to a stimulation of the economy, but at the cost of increased death rates). Secondly, bound up with the first issue was whether the government should act to regulate behaviour in relation to the new coronavirus by imposing a stay at home rule, social distancing, mask wearing and other limitations and thereby protect vulnerable people, but at the cost of individual freedom and choice or allow the behaviour to be decided on the basis of individual choice and the exercise of individual freedom, making mask wearing and so on voluntary, but at the potential cost of heightened infection and death rates, especially amongst vulnerable people. The Tory government faced organised opposition from within the Conservative party from the COVID Recovery Group (CRG), which was formed in early November 2020 specifically to oppose a second lockdown and was clearly linked to free market and libertarian ideas. Their opposition to the lockdown had three main elements—acceptance of the suppression policy as imposed in March 2020 by the Johnson government, but also a tendency to prioritise wealth over health and an absolute insistence that the market knows better. Pressure was also evident from right-wing groups outwith the Conservative government and the Conservative party in the country and it was pressure from these sources which probably led to the formation of the CRG. Significant here also was the emergence of the Reform Party UK, a new anti-lockdown political party (Sabbagh and Parveen 08/11/2020). At the launch of the new party, the party leader, Nigel Farage, declared support for what has become known as the Barrington Declaration (Reform UK Website accessed 15/06/2021). The so-called Barrington Declaration was a scheme published in October 2020 written by three scientists advocating

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a strategy based on voluntary isolation of the vulnerable and the establishment of herd immunity, with the programme being closely associated with the American Institute for Economic Research, a think tank committed to “pure freedom”, to seeing the “role of government … sharply confined”, and with a previous track record of supporting research that extolled the ‘benefits’ of sweatshops and critical of the ‘reality’ of climate change (see Greenhalgh et al. 18/10/2020). Public confidence in government pandemic policy has been divided and nuanced as revealed by the YouGov Polls (accessed 28/07/2021) conducted in January and March 2021, although the results here must be interpreted with care as they relate to the UK as a whole and public opinion on this matter may vary considerably within the territories that make up the UK. YouGov asked participants how well the government had handled the new coronavirus pandemic, over an extended period from March 2020 to July 2021. The results reveal that initially, at the announcement of the first lockdown on 27/03/2021, 72% of the sample thought that the government was handling coronavirus ‘very or somewhat well.’ However, this declined sharply to a low in mid-September 2020 of 30%, a little after the end of the initial lockdown, but at a time when deaths were rising and there was much confusion over local restrictions, which eventually melded into a national lockdown. Public confidence in government handling of the pandemic rose again to a peak in early May 2021 of 62%, on the back of the roll-out of vaccinations, but then declined to a low of 34% in July 2021, when infections were once again rising, but the government was pushing ahead with full opening up, finally introduced on 19/07/2021. There can be little doubt that the clearest policy success of the government in terms of the YouGov surveys was the roll-out of the vaccine, with 58% of the sample considering this was going well in January 2021 (Ibbetson 21/01/2021). A further poll in March 2021 found that government handling of the vaccine roll-out gained clear approval, with 85% of the sample suggesting that it was going well (Conner 30/03/2021). Survey participants were much less supportive and ambivalent concerning the job support schemes, with 44% considering that government was handling the matter badly (it is hard to tell whether this was because it affronted internalised

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neo-­liberal orthodoxy in the general population or the opposite, i.e. was seen as miserly and limited) and 48% saw them as handling it well (Ibbetson 21/01/2021). Overall, government policy on the pandemic in England and Wales has probably not limited COVID-19 deaths as much as in other comparable countries. It has had a profound negative impact on economic activity and led to the amassing of a very large debt—by May 2021 amounting to some £372bn (House of Commons Public Accounts Committee 19/07/2021c: 3), a matter of shame in neo-liberal orthodoxy and providing a justification, if one is needed, for austerity in the future (see Chap. 8). It has not inspired consistent public trust.

 he Pandemic and the Penal System: T The Government Response As the normal mode of operation of the penal system was and is close, often prolonged, face-to-face contact, in mostly enclosed public spaces, where social distancing was and remains difficult, if not impossible, the pandemic presented a significant threat. The second Johnson government at first responded to the threat posed to the penal system, by adopting a position of business as usual (see Robert Buckland’s statement to the House of Commons Justice Select Committee 24/03/2020e on Parliament TV), followed by a quick conversion to suppression via various ‘emergency’ measures (HM Courts and Tribunals Service July 2020a: 3). However, this was suppression refracted through a conception of penal agents as protectors of society against the threat posed by offenders and delivered through incapacitation in secure and controlled penal circumstances. This punitive view of offenders foregrounded victims and the public and relegated offenders to being of lower priority, less deserving and allowing and even encouraging pandemic penal policies to impose more costs on offenders than might be considered to be humane, decent and ultimately compatible with their continuing support. The examination of penal policy in the pandemic proceeds by considering what was planned and achieved separately for courts, prisons and

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probation. Each item is sub-divided into at least four elements viz. a critical examination of: • the exceptional or emergency delivery models formulated in the wake of the pandemic; • the recovery plans promulgated to provide the transition back to normal working; • the impact of government pandemic policies on the existing policies identified in Chaps. 3, 4, 5 and 6 and • whether the pandemic penal policies were successful in their own terms and whether they exacerbated the penal crisis.

Courts  e ‘Emergency Response’ or Exceptional Delivery Th Model (EDM) The MOJ response was at first based on business as usual, rooted in herd immunity and more specifically in the perceived need to keep the transforming courts agenda on track and to avoid making the existing backlog of cases even worse and much less manageable (see the position adopted by the Minister of Justice at the House of Commons Justice Select Committee 24/03/2020h on Parliament TV). Three factors undermined such an approach leading to a rapid shift to the ‘emergency response’. The court system was wholly unprepared for managing such an emergency given that the modelling done as a result of Operation Cygnus did not include emergency planning for courts (House of Lords Constitution Committee 30/03/2021: Para 26, page 13). Furthermore, the court system lacked the resilience necessary to withstand the onslaught because of the ‘the dramatic reduction in the size of courts’ estate in England and Wales over the past ten years’ (House of Commons Justice Select Committee 22/07/2020g: Para 93 and Table 3.1 in Chap. 3). Finally, more broadly, the herd immunity stance was shown to be a swift way to commit political suicide by Ferguson et  al.’s paper (16/03/2020), surpassing even the second Johnson

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government’s capacity for bluff and spin to account for up to 500,000 deaths and remain in power. What followed was the rapid articulation of an ‘emergency’ response based on an increasingly extensive lockdown of the court system, a skeleton emergency structure where necessary and a rapid shift to remote working. There can be little doubt that ‘the COVID-19 pandemic had a major impact on the operation of the criminal justice system’ in general and courts in particular (House of Commons Justice Select Committee 22/07/2020g: Para 22 page 10). All new jury trials were suspended from 23/03/2020 (House of Lord’s Library 21/07/2020). Between 05/04/2020 and 31/05/2020 only 28 such trials proceeded (House of Lords Constitution Committee 30/03/2021: 15) and limited new jury trials did not resume until 18/05/2020. Magistrates’ courts were also significantly affected leading to temporary closure, for about a month, of all such courts and later only about 25% of all such courts were operating (House of Commons Justice Select Committee 22/07/2020g: Para 18). The net result was that by 14/04/2020 only 42% of all courts and tribunals in England and Wales were operating (House of Lords Constitution Committee 30/03/2021: 15). The emergency plan necessarily created significant issues, relating to the accelerated move to not unproblematic, remote working, a reduction in disposals and a consequent growth in outstanding cases, delays to court cases and the extension of remand to prison and, finally, a significant and potentially undermining impact on the revenues, and therefore the continued existence of law firms and consequently the ability of defendants to obtain legal advice and representation. I will use the term remote working, as set out in Chap. 3, to refer to the deployment of audio and video facilities by courts which allows for contact between lawyers and clients, courts and defendants and court proceedings to happen with limited or no face-to-face contact. There can be little doubt that a move to remote working was seen as a way of handling the crisis caused by court closures and that this move plugged into developments already proceeding under the Court Estate Development Plan (see Chap. 3). The Minister, when giving evidence to the House of Commons Justice Select Committee on 07/04/2020a, emphasised the extent of remote working undertaken by courts (House of Commons

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Justice Select Committee 07/04/2020a). The House of Commons Justice Select Committee subsequently noted that 90% of the 3200 hearings taking place that day were through audio or video means (House of Commons Justice Select Committee 22/07/2020g: Para 39), making remote working the preferred model for court practice during the pandemic. But it is not clear to what extent the rapid movement to remote working as a standard pandemic practice had taken account of and tried to deal with a number of known significant issues. In Chap. 3 I listed these as fivefold—here I will focus on just four, because one of them, a concern about the cost effectiveness of the Courts Estate Programme, was much reduced by the need to deal with the pandemic emergency. The four extant issues are lack of systematic knowledge of the impact of remote working, the detrimental impact on access to justice, especially with vulnerable defendants, victims and witnesses, questions concerning the openness of remote proceedings and technical deficiencies detrimentally affecting functionality. I will address these matters in the light of evidence from three timely reports—namely, Transform Justice (May 2020), the House of Commons Justice Select Committee Report (22/07/2020g) and the Equality and Human Rights Commission Report (June 2020). Firstly, it is clear that the emergency response entailed no systematic data gathering to enable reflection on what had been done, leading the House of Commons Justice Select Committee Report (22/07/2020g: Para 62) to remark that: The Committee is concerned that as yet there has been no judicially or government commissioned, review of the increased use of remote hearings in criminal cases in either the magistrates’ courts or the Crown Court during the pandemic.

Secondly, access to justice issues continued, especially for vulnerable people. The House of Commons Justice Select Committee Report (22/07/2020g Para 41, page 17) noted that:

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We remain concerned that the use of technology in courts …. may not always be tailored to the needs of the most vulnerable users of the justice system.

The report noted a number of aspects of this problem across the court system—including the differential impact of reduced administrative support and the differential impact of ‘barriers to digital justice service’ in terms of access to court and lawyers, all leading to limitations on effective participation for vulnerable and socio-economically disadvantaged groups. These matters were also addressed by the Equality and Human Rights Commission who indicated that the use of remote working hindered communications and understanding with those people suffering from mental disorders (Equality and Human Rights Commission June 2020: 9). As a result, the development of the Cloud Video Platform notwithstanding, the House of Commons Justice Select Committee concluded that ‘we recommend that the MOJ commission an urgent review that evaluates the effect of COVID-19 measures in the magistrates’ and Crown Court’ (House of Commons Justice Select Committee 22/07/2020j: Para 66). Thirdly, concerns about the openness of remote justice continued, the House of Commons Justice Select Committee report (22/07/2020g: Para 66) referred to continuing questions concerning the lack of scrutiny that can be brought to bear on such court proceedings, with court observations by the media or the public proving difficult (see also Robins 24/05/2020; The Justice Gap 29/05/2020; Transform Justice May 2020). Finally, concerns remained about the functionality of the equipment on which remote working depended, despite the announcement of the Cloud Video Platform in May 2020 (HM Courts and Tribunal Service May 2020). This was so because the courts even in March 2020, at the start of the pandemic, still had to start from a position ‘virtually below sea level in terms of technology’ (see House of Commons Justice Select Committee 22/07/2020g: Para 38). Significant technical problems have continued, especially in criminal courts (House of Lord Constitutional Committee Report 24/03/2021: Para 37 page 16). Furthermore, lack of functionality continued to exacerbate other negative impacts.

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The overall situation was summed up as follows: It’s all very well to do Zoom, but it’s better to be in the room. One misses the ‘tells,’ the ticks and the smells, there’s a danger injustice will loom!. (Trevett and Whitfield, May 2020)

The closure of courts, despite the move to remote working, led to decreased disposals and increased outstanding cases and delays, already rendered problematic by the move to litigants/defendants attempting to represent themselves, because of restrictions on legal aid and the austerity-­ based cuts in infrastructure (see Chap. 3). Comparing quarter year periods in 2019 with 2020, in magistrates and Crown Courts disposals decreased reaching a low point in April–June when decreases reached 61% and 50% in magistrates’ and Crown Courts, respectively. Consequently, outstanding cases in magistrates’ courts peaked in April– June (cases up by 47%) and July–September (with cases up by 48%). In Crown Courts outstanding cases peaked a little later by October– December 49% up on the same period in 2019. The April–September period was at the time of the height of the first outbreak, lockdown and opening up. The reduction in disposals and the growth in outstanding cases meant delays—for witnesses, victims and defendants (see MOJ 25/03/2021c Tables M1 and C1). In addition, remands to custody increased. Remand numbers in prisons in the 12 months to March 2019 compared with the same period up to March 2020 show an increase in the remand population from 8957 to 10,043 (12%) (MOJ 25/07/2019b and 29/10/2020n). The remand population of prisons rose to 11,388 by June 2020 (compared with 9145 in June 2019, a rise of 25%) and a yet further rise to 12,274 by September 2020 (compared with 9602  in September 2019, a rise of 28%) (see Table 7.3 in this chapter).

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A further negative consequence of the pragmatic closing down of courts in response to the COVID-19 outbreak was the rapidly diminishing remuneration for law firms, which raised fears about their survival, and thus defendants’ ability to obtain legal advice and representation. The House of Commons Justice Select Committee (22/07/2020j: Para 15) found that, comparing monthly average legally aided work January– March 2020 with April–June 2020, applications for attendance at police stations decreased by 41%, and applications for representation at Crown Courts decreased by 45% and for representation at magistrates’ courts decreased by 42%. The impact of the new coronavirus added to existing pressures caused by changes made to legal aid (see Chap. 3). Furthermore, the dilemma mentioned by Transform Justice paper (May 2020) has to be acknowledged, that is, this was not just about falling incomes and personal risk (attendance at the remaining courts exposed individual lawyers to COVID-19 infection), but increasing doubts about the moral justification of participating in flawed proceedings, given that such proceedings raised questions as to whether they (lawyers) were really carrying out their defence role to the best of their ability. The Minister, Robert Buckland, in his evidence at the House of Commons Justice Select Committee on 07/04/2020a, showed himself to be, in principal, sympathetic to the plight of law firms, at least with regard to loss of income. The House of Commons Justice Select Committee report (22/07/2020j: Paras 26–30) indicated that financial support took three forms—cash flow support through loans, additional income through the furlough scheme and interim and hardship payments made by the Legal Aid Agency. However, the usefulness of the schemes to law firms varied— the furlough scheme had been ‘very useful’, but the loan schemes less so, given that law firms did not wish to add further loans to their already precarious financial position and the LAA schemes simply meant ‘being paid now, but getting nothing later’ (House of Commons Justice Select Committee 22/07/2020j: Para 31).

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The Criminal Courts Recovery Plan The recovery plan proposed three main ways to restore courts to pre-­ pandemic volumes of work: expanding the number of COVID-19-secure premises, changing the operation of courts and further developing remote working in courts. The target date for recovery was set by the Minister of Justice, Robert Buckland, as Easter 2021 (see House of Commons Justice Select Committee video Robert Buckland’s evidence 23/06/2020f ). The first set of changes concerned expanding the number of COVID-­ secure premises, by both modifying existing premises and the establishment of 60 new, courts dubbed ‘Nightingale’ courts to coincide with the new hospitals of the same name rapidly established during the pandemic to cater for increased demand (though as noted above the new hospitals remained largely unused). A progressive re-opening of court premises was evident almost as soon as the initial stages of the pandemic had passed. In Crown Courts, some jury trials resumed for special cases in May 2020, but by July 2020 some 57 Crown Court sittings had been restored. By January 2021 jury trials were proceeding in 79 Crown Courts, 6 additional court sites and 7 Nightingale courts (House of Lords Constitutional Committee 30/03/2021: 16). The House of Lords Constitutional Committee Report also noted increases, by March 2021, in court capacity, in part resulting from modifications being made to existing courts, with some 450 courts being equipped with ‘flexiglass’ screens (House of Lords Constitutional Committee 30/03/2021: 47). By 11/03/2021, 24 Nightingale courts had been opened, rising to 32 such courts as noted in the HMCTS Annual Report 2020–2021 (HMCTS 15/07/2021b: 6), though far fewer than the 60 planned for by the end of March 2021 (House of Lords Constitutional Committee 30/03/2021b: 16, 47 and 60). The second set of changes depended on making adjustments to court operation in terms of court listings, increasing staffing by ‘1600 FTE’s (full-time equivalents)’, prioritisation of cases, changing court operating hours and making changes to jury trials. From April 2020 magistrates’ courts listings were prioritised in order to minimise travel, but to keep cases being heard. Cases were prioritised—with priority 1 including custody cases (including sentencing, overnight cases from police stations and

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productions from prison), priority 2 trials or hearings dealing with breaches of the coronavirus regulations and ‘sensitive/high profile cases’ and priority 3 ‘all other cases’ (HM Courts and Tribunals Service 15/02/2021a). However, the House of Lords Constitutional Committee (30/03/2021) noted that, in order to aid open justice, such changes needed to be ‘timely, complete, and consistent’ (page 34). Little progress was made on the issue of court operating hours, despite the pilot projects, with the COVID Operating Hours proposal continuing to be under review by the Lord Chancellor (Slingo and Fouzder 08/02/2021). The promised increase in the staff base of HMCTS of 1600 FTEs was accomplished, even if somewhat reduced in impact by staff leaving, meaning that the net increase was much lower than 1600 FTEs (House of Lords Constitutional Committee 30/03/2021: Para 47; HMCTS 15/07/2021b: 14 and 53). The proposal to make changes to jury trials either by reducing the number of jurors or by suspending their use entirely for either-way offences and their replacement in the Crown Court by a judge sitting with two magistrates (House of Commons Justice Select Committee 22/07/2020g: Para 77) proved extremely controversial. The latter element had not been adopted by the summer of 2021, although the proposal to allow… a minimum jury size of seven rather than nine was being actively considered. (House of Commons Justice Select Committee 22/07/2020g: Para 78)

Whereas the House of Commons Justice Select Committee welcomed ‘the fact that the Government “is canvassing and developing policy options” on future provision of jury trials’, it stated that ‘we regret that this process appears to be going on behind closed doors through informal discussions rather than through a transparent policy process (House of Commons Justice Select Committee 22/07/2020g: Para 79). It is also notable that this questioning of jury trials occurred in the UK at the same time that greater priority was placed on jury trials in the USA by the Ramos ruling in the Supreme Court in April 2020, which held that

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unanimous verdicts in felony cases were required in all states (de Vogue 20/04/2020). By March 2021 the House of Lords Constitutional Committee expressed the view that, with regard to the number of jurors on a panel and the move away from jury trial for some offences, no action had been taken and it was ‘unclear whether the Government is considering this option. Any change to the jury system, whether by allowing defendants to choose judge-only trials in serious cases, or by reducing the number of jurors needed for a Crown Court trial, should not be initiated without full parliamentary scrutiny and debate’ (House of Lords Constitutional Committee 30/03/2021: 5). The third set of changes, probably the single most important item, concerned improving and extending remote working through the Cloud Video Platform (CVP). There can be little doubt that remote working did expand. HMCTS noted that by February 2021 there had been a significant increase in remote hearings, from the around 3000 already noted above to: 20,000 hearings… being undertaken via the Cloud Video Platform (CVP) each month as we continue to make full use of remote alternatives wherever possible. Magistrates’ courts are facilitating the remote attendance of those involved in proceedings where the court has directed, and is able to facilitate this. (HM Courts and Tribunals Service 15/02/2021a)

However, the joint report by four inspectorates (Criminal Justice Joint Inspectorate January 2021) noted that the emphasis on CVP had declined at the time of reporting. Furthermore, no evaluation of the results of the process had been published by February 2021, as recommended by House of Commons Justice Select Committee, and it was difficult to ascertain whether the kinds of issues identified by previous work had been addressed (Criminal Justice Joint Inspectorate January 2021). Did the changes introduced by the recovery plan achieve the stated aim to restore court operations to their pre-pandemic levels by Easter 2021? Early on the House of Commons Justice Select Committee expressed the view that for criminal courts the changes by then did not

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enable trials to go ahead in the magistrates’ courts and the Crown Court at anything close to normal levels. (House of Commons Justice Select Committee 22/07/2020g: Para 22)

And the House of Lords Constitutional Committee 30/03/2021 later noted of the changes made to date that: ‘These are necessary and welcome steps, but they are not sufficient. At the current rate it may take several years to get the backlog back to where it was before the pandemic began. And that must not be the stopping point. We recommend that the Government sets out a plan for addressing the backlog that will reduce it well below pre-pandemic levels’, including opening more Nightingale courts (House of Lords Constitutional Committee 30/03/2021: 5) and expressed concern that despite the three main changes clearly needing significant investment in the short- and medium-term, no such provisions had been made in the government’s Budget for 2021. (House of Lords Constitutional Committee 30/03/2021: 1)

Court backlogs continued, the CJJI Report (January 2021) singling out backlogs as being ‘unprecedented and very serious’, and as constituting the greatest risk to criminal justice. Justin Russell, Chief Inspector of probation, speaking for the four inspectorates, suggested that: Crown Courts deal with the most serious cases, so this backlog concerns us all. The Covid-19 pandemic has meant severe delays and numerous cancellations throughout 2020, and this has had a negative impact on everyone involved. Delays mean victims must wait longer for cases to be heard; some will withdraw support for prosecutions because they have lost faith in the process. Witnesses will find it difficult to recall events that took place many months ago, and prosecutors waste significant periods of time preparing for cases that do not go ahead. Those accused of crimes face delays in their opportunities to defend themselves and seek acquittal [and]…defendants are kept on remand for longer periods. Court backlogs have a ripple effect across all criminal justice agencies and must be dealt with to ensure fair justice for victims and perpetrators of crime. This is a whole-system problem that requires a whole-system solution. (Russell, J, Chief Inspector of probation, quoted on Russell Webster website 19/01/2021)

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The definitive statement from the House of Lords Constitution Committee also suggested that the problem of delays had not gone away. The report noted that despite all the changes introduced the ‘total number of outstanding cases in Crown and magistrates’ courts as at 21 February 2021 was reported to be 533,807 … [compared with] … 435,856  in 8 March 2020’ (House of Lords Constitution Committee 30/03/2021: 35 note 156). It has been estimated that the real situation in Crown Courts is worse than the raw data betray with Crest Advisory suggesting that the Crown Court would have to double its capacity to return to pre-COVID levels by 2024 although the MOJ disputes the analysis (quoted in House of Lords Constitution Committee 30/03/2021: 35). In magistrates’ courts although a small reduction in outstanding cases was achieved by December 2020, after this date the backlogs began to increase again, reaching 476,932 cases by February 2021. Government estimates suggest that it will take two years to reduce this backlog (see House of Lords Constitution Committee 30/03/2021: 39). The House of Lords Constitution Committee (30/03/2021: 39) noted that such backlogs were ‘neither acceptable or inevitable’, but result from years of underinvestment leading to record levels which cause delays which are ‘undermining the rule of law, access to justice and risk damaging public confidence in the justice system’, because victims and defendants are having to wait for several years for their cases to be heard, but the quality of justice is increasingly at risk as witness memories fade over time. The remand population of prisons continued to increase throughout the whole period, from March 2020 to the summer of 2021, reaching its highest level in July 2021 of 12,753 (see Table 7.3 in this chapter). This reveals that the recovery programme had had limited impact on the growing remand population, and this growing population was intimately connected to continuing delays in the court system. Subsequent comments suggest that the problems that were evident during the roll-out of remote working in 2016–2019 and were still matters of concern in the March–June 2020 period continued to exert a baleful influence in the ‘recovery’ period. The House of Lords Constitution Committee Report suggested that the government showed early recognition that simply increasing the number and operation of conventional

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courts would not provide a response adequate to the problem and a move to make more use of remote working, with the roll-out of the Cloud Video Platform was seen as a way to reduce difficulties. However, the same report found that the new technology introduced to the courts service had not been fully embraced by all court users. The use of the Cloud Video Platform had started to decline since its introduction, and the police had withdrawn support for video remand hearings on the Platform, due to cost and service pressures (House of Lords Constitution Committee 30/03/2021: 4). As a consequence, the government early in 2021 brought fresh, but not unproblematic, proposals—the factsheet for ‘Audio and Video links’, associated with the provisions of the Police, Courts, Sentencing and Crime Bill March 2021, indicated a move to substitute the Prisoner and Escort Service (PE&CS) for the police, who withdrew from the scheme at the end of 2020. Provision is to be made for the PE&CS to run the service from police stations (Home Office 09/03/2021a; PCS&C Bill Para 65; Home Office 13/05/2021b and 2021c). This added a new layer to concerns about remote court working given that the PE&CS is a privatised service. Furthermore, the House of Lords Constitution Committee report, like a number of previous reports, noted that although ‘high quality, up-­to-­ date data are necessary to ensure effective management … and enhance trust in justice more broadly’, there was still a dearth of such information on the impact of remote hearings, especially on vulnerable court users (House of Lord Constitution Committee Report 30/03/2021: 5). The report expressed clear concerns that access to justice issues remained, not the least because: ‘The sudden shift to remote hearings has stretched limited court resources, created new barriers to communication between lawyers and their clients, and risks excluding court users. Limited IT access, home distractions, and the more tiring nature of remote hearings all threaten to undermine effective participation’ (House of Lord Constitution Committee Report 30/03/2021: 4). Resources are needed, the report argued, to enable clear guidance to be given to all court users. Further legal aid budgets needed to be expanded to enable the reduction of access to justice problems caused by remote working.

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On the issue of open justice, the House of Lords Constitution Committee Report noted the existence of continuing issues, particularly in magistrates courts (30/03/2021: 32), and noted that ‘the pandemic has exposed the systemic shortcomings in the publication of essential information related to court hearings’ which inhibit access to court hearings by the press and the public. However, the PCS&C Bill March 2021 offers an answer to some of the issues raised about the openness of remote proceedings to external scrutiny, as the bill makes provision to enable observation of such proceedings by the public (Home Office 09/03/2021a). The House of Lords Constitution Committee report noted that the transition to remote working during the pandemic did not go smoothly because of continuing technical difficulties. Overall the report also sounded a note of caution: Operational changes introduced in response to the pandemic should not be regarded as irreversible where they have risked undermining access to justice, open justice or consistency in the application of the law. We recommend that the Government continues to invest in and develop the technology for remote hearings and the guidance to support it, learning the lessons from its use during the pandemic. There should be an ongoing process of engaging with researchers and the legal sector to ensure that access to justice is secured via remote hearings. (House of Lord Constitution Committee 30/03/2021: 5)

More recently, a joint report issued by the Bar Council for England and Wales and Northern Ireland and the Faculty of Advocates in Scotland suggested that remote working, though useful in simple cases, has ‘multiple and multifaceted disadvantages’ including less satisfactory judicial interaction, diminished quality of evidence, challenges to good advocacy and an adverse effect on training and well-being (Slingo 04/05/2021). It is also worth noting that the House of Lords Constitution Committee Report is critical, not only of the current situation, but also of the government planning on these matters in that they suggest that the situation calls for better medium-term planning, and much better funding far beyond what has been made available and note that ‘The Government should also report to Parliament annually on the actions taken to reduce

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the backlog in the criminal courts’. And yet, despite this, a plan has not been produced and no provision was made for this in ‘the Government’s Budget for 2021’ (House of Lords Constitution Committee 30/03/2021: 4–5). Finally, despite the current crisis of law firm funding being an exacerbation of a long-standing trend set in train by changes made to legal aid 2010–2015 (see Skinns 2016 Chapter 3) and continued into the 2015–2020 period (see Chap. 3) the report of the House of Commons Justice Select Committee (13/10/2020d) dealing with the government response to the committee’s proposals offers a bleak picture with most of the specific recommendations rejected (including relaxation on income tax return requirements, a move away from loans, changes to business rates, changes to legal aid payments) although extra funding (£5.4m) is promised for non-profit law centres and further creative work with Legal Aid Agency is expected.

 e Impact of the Exceptional Delivery Models and Recovery Th Plans on Existing Court Policies The pandemic and government handling of the pandemic have had a variable impact on the implementation of existing government policies, the full effects of which are still not known. Stringency continued to be applied to criminal legal aid, during the pandemic, notwithstanding the government ordered yet further review this time of the means test for legal aid (in February 2019, but still yet to report by the end of 2021) and the various attempts to make ad hoc additional funding available. Two reports, however, signalled that the aggressive, rear guard defence of continuing austerity might be under threat. The House of Commons Justice Select Committee Report on legal aid (27/07/2021a) made it quite clear that legal aid was necessary if access to justice was to be maintained and that there was a genuine need to support the sustainability and diversity of law firms and went on to make a number of recommendations, only to be met with a yet further element of government rear guard action, delaying any response until the findings of the Bellamy Review Report were published (see Government response to

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the House of Commons Justice Select Committee Report was reproduced by the committee on 16/11/2021b). The Bellamy Review Report was published on 29/11/2021. This report provided trenchant comments also making it quite clear that legal aid was necessary if access to justice was to be maintained and that there was a genuine need to support the sustainability and diversity of law firms. Indeed, the report insisted that there was an urgent need for an annual increase in funding for criminal legal aid ‘of at least 15%’ or a ‘minimum’ of £135m per annum, that this should be made available ‘without delay’. Furthermore, the report recommended the appointment of a legal aid advisory board to ensure that criminal legal aid better adapts to developments in the broader criminal justice system (Bellamy 29/11/2021: 10–11). It is difficult to tell whether the delaying, rear guard action has reached the end of the road, as no government response to the Bellamy Review Report had been published by December 2021. However, speculatively, this matter seems to be such an important element of Conservative dogma that it seems likely that, despite the dire consequences for access to justice and the viability and diversity of law firms, change to the austerity policy will be resisted, despite the announcement in October 2021 to increase criminal legal aid entitlement, but without any indication of how this would be done (HM Treasury 27/10/2021a). Some aspects of the court transformation programme have been thrown off course and even reversed (the drive for court closures was transformed into a drive to open court premises as noted above), but others have been stimulated particularly remote working, albeit without attention to proper safeguards. It is likely that remote working at least has further attenuated access to legal aid advice and representation. The society-wide, temporary limitation on bailiff visits due to initial pandemic restrictions came to an end at the about the same time that the Approved Enforcement Agencies in England were due to start court debt enforcement work and well before such agencies started work in Wales (as noted in Chap. 3, in England the AEAs were due to start work in September 2020 and in Wales in April 2021). Neither the HMCTS Annual Report for 2020–21 nor the HMCTS Trust Statement (HMCTS 15/07/2021b; 21/09/2021c) for the same period make any reference to the activities of the AEAs so it is not currently known what impact the

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AEAs have had on debt enforcement and debtors and whether they have lived up to one of the central HMCTS aims, to save £4m per year over ‘the next five years’ (HMCTS 21/09/2021c). The general drive to toughen custodial and community sentences continued relatively unabated, even if somewhat delayed. Policy concerned with reducing the extent of early release from prison for some serious offenders, as noted in Chap. 3, occurred in two waves, the second wave happening after March 2020 and being signalled by the Sentencing White Paper (MOJ 16/09/2020m) and translated into the Police, Crime, Sentencing and Courts Bill (PCS&C), introduced into the Commons in March 2021. By the summer of 2021, this bill was yet to gain royal assent. It proposed two extensions of the provision already made to the two main categories of offender, that is, terrorist and other serious sexual and violent offenders, by abandoning automatic early release and shifting the consideration for release from the halfway to the two-thirds point of the sentence for serious and violent offenders serving four to seven years. The White Paper also proposed moving the point at which discretionary lifers can be considered for parole from the half-way point on the tariff to the two-thirds point (MOJ 16/09/2020k; Home Office 13/05/2021c, 2021d, 2021e, 2021f ). Policy concerning the lengthening of prison sentence for some serious offenders, also occurred in two waves, with the second wave happening after March 2020 with the Sentencing White Paper and then the PCS&C Bill (Home Office 13/05/2021d), suggesting provision which takes a different direction and harks back to the days of the ‘prison works’ logic of the 1990s. On the grounds that ’the time spent in prison [will] better reflect the severity of the crimes committed’ but also, and more importantly, that the change will restore public faith ‘that the system will keep dangerous criminals off our streets for longer’, a re-regulation of the courts’ discretion in relation to the incapacitative logic of the ‘three-­ strikes’ burglary and ‘two-strikes’ knife-crime cases is proposed which will act to limit court discretion over the imposition of such penalties. As noted above, the PCS&C bill has yet to receive royal assent. Developments during the pandemic regarding whole-life orders pushed the reforms in an even more punitive direction. Not only was the emphasis on whole life orders reaffirmed, but, probably influenced by the

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Hasham Abedi case at the Old Bailey in August 2020 and his subsequent sentencing to 24 life terms with a tariff of 55 years, given that he could not be given a whole-life sentence on the grounds that he was below the age of 21 when the offences were committed, the White Paper and the subsequent PCS&C Bill 2021 asserted the need to allow judges in some circumstances to impose whole-life sentences on young adults aged 18–20 convicted of aggravated murder, in clear contradiction of previous statements referred to in Chap. 3. The proposal to extend whole-life orders to young adult offenders, combined with the tendency to use provisions of this kind to engage in politics, pushed England and Wales towards the USA and further away from European practices. However, England and Wales still have a long way to go to fully resemble the practices in the USA. But if the present proposal is successful, then one further important step towards the USA is taken and the previous lack of application of the provision to those under 21 years abandoned. In the USA, in 2016, there were 53,290 prisoners serving life without parole, of whom some 2500 were juveniles, that is, offenders under the age of 18  years at the time of the offence (Sentencing Project 2017). If the practices of England and Wales begin to resemble the USA, it must be noted that then they become more distinct from European practice. England and Wales even now stand out in Europe (whether European Union [EU] or Council of Europe) as having a higher imprisonment rate. In 2015, it had the highest imprisonment rate (at 148.3) of any European country, not an ex-Soviet bloc state, in Europe except Turkey (220.4) and the highest imprisonment rate than any other EU country except the ex-­ Soviet bloc EU states (Council of Europe 2018 Table 2.1 page 30). In 2015 when the full extent of all indeterminate sentenced prisoners as a percentage of the prison population are taken into account, the UK regions have the highest rates: Scotland (16.8%), England and Wales (16.6%), Northern Ireland (13.7%), followed by Greece (13.1%), Ireland (10.9%) and Finland (8.5%) (Council of Europe 2017 Page 92 Table 7.1). If this provision passes into law, then England and Wales will be the only European countries to impose whole-life sentences on those under 21 years.

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Before moving on though the general tenor of the specious promise to improve whole-life orders should be noted—it perfectly expressed the tendency to incapacitation at the heart of Conservative thinking, as well as the entrenched tendency on the part of the last two Conservative governments towards a populist law and order stance—this time playing on the notion of child murderers to gain support for an unnecessary amendment to this sort of sentence whilst sneaking in a real change, the application of whole-life sentences to young adults. Table 3.2 (in Chap. 3) shows that the de facto policy of harsher prison sentencing continued 2020–2021, albeit with some variations. Imprisonment rates remained relatively static or rose slightly, despite the prison conditions caused by the pandemic and its management, with imprisonment rates for all offenders being 6.5% in 2019–2020 and 7.8% in 2020–2021. ACSLs decreased slightly, for all offenders being 19.6  months in 2019–2020 and 18.6  in 2020–2021. For indictable offenders not only did the imprisonment rates decrease (from 71% in 2019–2020 to 65.7% in 2020–2021) but ACSLs also decreased from 59.0 months in 2019–2020 to 52.3 months in 2020–2021. The policy on and the court use of short prison sentences continued with the proportion of those receiving such sentences of total first receptions into prison remaining above 70% (see Table 3.5 in Chap. 3), with the Minister of Justice, Robert Buckland, once again averring that: ‘It is imperative that judges and magistrates have the power to impose short custodial sentences, where they are appropriate,’ once again locating his position in the ‘certainties’ of his direct experience. (MOJ 16/09/2020k and 16/09/2020m)

The use of community orders did increase slightly for both indictable offenders and for all offenders, whilst the use of SSOs continued to rise for both groups (see Table 3.2 in Chap. 3). Efforts to encourage courts to make more use of the CO and SSO treatment requirements (as discussed under the community sentence treatment requirement protocol [CSTRP]—see Chaps. 3 and 5) including alcohol (ATR), drug (DTR) and mental health treatment (MHTR) requirements have had little impact. The court use of ATRs remained static comparing 2019/20 with

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2020/21 for both COs and SSOs (at 3% of all commenced orders). Court use of DTRs decreased (for COs from 4% of commenced orders in 2019/20 to 3% in 2020/21 and for SSOs from 4.5% of all commenced orders in 2019/20 to 3.5% in 2020/21. Court use of MHTRs did increase but only very slightly, for both COs and SSOs from 0.5% in 2019/20 to 0.6% in 2020/21 (MOJ 30/07/2020i and 29/07/2021e Probation Tables Table 4.4). Overall, court use of the treatment requirements for COs and SSOs remained at remarkably low levels given the incidence of alcohol and drug dependency and mental health issues in offender populations and the continuation of the CSTRP beyond its early origins. The limitations noted here are understandable not only because of the impact of the pandemic, but also that the CSTRP only covered 20% of the England, although NHS England planned to expand this to 50% coverage by 2023. This seems to be too little too late in the circumstances (Black Report Part 2 02/08/2021; NHS England 07/01/2019). A combination of government encouragement to use punitive curfews and the conditions of the pandemic curtailing the provision of probation supervision and alcohol, drug and mental health advisory services, despite the relatively late introduction of GPS tagging (see Chaps. 3 and 5), led courts to increase their use of curfew/electronic monitoring requirements. These increased from being 11% of all commenced requirements in 2019/20 for COs to 15% in 2020/21 and 10% of all commenced requirements in 2019/20 for SSOs to 12% in 2020/21(MOJ 30/07/2020i and 29/07/2021e Probation Tables Both Table 4.4). The use by courts of financial impositions declined between 2019/20 and 2020/21—for example, for fines by 31% and on average for all financial impositions by 27%, but the debt burden rose by 7% reaching some £3.6bn (see Table 3.6 in Chap. 3).

 e Impact of the Pandemic Policies on Courts: Internal Th and External Critique The criminal courts recovery plan had not been successfully rolled out by the summer of 2021 and the court system had not recovered from the impact of the pandemic in terms of delays, backlogs and an expansion of

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the remand population in prisons due to cases being delayed in courts. The expansion in court remote working had not been accompanied by successful amelioration of the key issues, notably the need for careful monitoring in order to learn from experience and the easing of the disadvantages faced by the vulnerable. Perhaps this can be accounted for by the unexpected persistence of the virus, but this then betrays the unrealistic nature of the policy, which has been exacerbated by lack of adequate plans for future development. Overall, government handling of the pandemic in courts had not been successful in its own terms. The pandemic and the government management of the pandemic did not ease the burden of the penal crisis experienced by courts. The pandemic exposed the lack of emergency planning and the complete lack of resilience in the system due to repeated cuts in premises and staffing. Court net expenditure was increased both to take account of the continuing transformation programme and to provide ‘additional resource funding to support COVID-19 recovery’ from £1.24b in 2019–2020 to £1.5b 2020–2021, with some £105m of this being for COVID recovery (HMCTS 15/07/2021b: 5). More staff were recruited (some 1600 FTEs), but because of staff leaving, the net gain was much less (about 500 FTEs HMCTS 15/07/2021b: 53: see also Table 3.1 in Chap. 3). But the pandemic, during the recovery period, increased the workload whilst stretching staff resources over an expanded range of premises, albeit with some lessened pressure from working at home (although as HMI Probation found this caused other kinds of difficulties—see Chap. 5). The pandemic detracted from the legitimacy of courts for victims and witnesses by contributing to backlogs (see Godfrey et al. 2021) and for offenders by causing extensive periods on remand and increasingly subjecting them to unmonitored and largely unimproved remote working, that disadvantaged the vulnerable, as well as potentially limiting defendants’ opportunity to consult with their legal representative and simply be involved in court proceedings.

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Prisons This section is divided into six sub-sections, taking account of the particular threat posed by the new coronavirus to prisons, measurement of the spread of COVID-19  in prisons and trends in COVID-19-related deaths and infections, as well as covering the emergency response and recovery plan for prisons, the impact of these measures on existing prison policies and the overall success of the pandemic response in the governments’ own terms as well as how it impacted on the penal crisis.

The Threat of New Coronavirus to Prisons Prisons are closed total institutions particularly vulnerable to new coronavirus ingress and spread, partly because of previous public sector parsimony and more recent austerity, which had led to overcrowding, understaffing and very poor living and working conditions and partly because prisoners are drawn from the vulnerable, health-compromised, materially deprived groups, who are then, whilst in prison, subjected to yet more material deprivation, in confined conditions.

 easuring COVID-19 Spread in Prisons: Infections M and Deaths The closed nature of most prisons makes necessary a separate examination of the spread of COVID-19  in prisons. Because of the problems relating to measuring infection rates in prisons (see Public Health England 24/04/2020a: 2), I will use MOJ statistics referring to deaths of HMPPS service users ‘related to’ COVID-19, in custody (whether actually in prison establishments or transferred from there to hospital) and on ‘probation’. All statistics remain provisional. The first death of a prison inmate in England and Wales officially attributed to COVID-19 occurred on 22/03/2020  in hospital (BBC

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News 26/03/2020a). Thereafter, as in broader society, a twin-peaked trend is evident, from March to June 2020 and then again in November 2020 to March 2021, with a relatively death-free interregnum. There is little evidence for further COVID-19-related prisoner deaths in the period between April–July 2021. During the first peak of the pandemic, from March to the end of June 2020 some 27 deaths of prisoners occurred related to COVID-19. Given an average prison population of 80,891 the COVID-19-related fatality rate for prisoners was 0.334 per 1000 of prisoners. There were no deaths of prisoners related to COVID-19 in the July–September 2020 period. Between October 2020 and April 2021 a further 123 prisoners’ deaths related to COVID-19 making the fatality rate 1.571 per 1000 prisoners. From May 2021 to the end of July 2021, there were no further COVID-19-related prisoner deaths (for details, see Tables 7.2 and 7.3 in this chapter). Finally, over the whole period March 2020 to the end of July 2021, 150 prisoners died from COVID-19 related disease, with an average prison population of 79,071, the prisoner COVID-19-related death rate was 1.897 per 1000 prisoners. The COVID-19-related death rate amongst prisoners was a lower in the first outbreak (March–June 2020) at 0.334 than in the second (October 2020–April 2021), when the COVID-19-related fatality rate was 1.571 (see Table 7.2). The COVID-19-related death rates of prisoners for the two peaks and overall when compared with the same data for probation users reveal that probation users had a consistently lower COVID-19-related death rate than prisoners (see Table 7.2). The overall COVID-19 death rates for prisoners and probation users were 1.897 and 0.259 per 1000 of prisoners and probation users, respectively. Given that in mid-2020 the population of England and Wales was estimated to be 59,720,000 (ONS 24/06/2021c Table 2), less the average prison population for the period of 79,071 and the total COVID-19-­ related deaths were 139,991 to the end of July 2021, the COVID-19-­ related death rate in the population of England and Wales was 2.344 per

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Table 7.2  Provisional deaths ‘related to COVID-19’ of HMPPS service users, in England and Wales, March 2020–July 2021 Month Year March 2020 April 2020 May 2020 June 2020 Total March–July 2020

Prisoners’ deaths ‘related to COVID-19’

Probation users’ deaths ‘related to COVID-19’

4 17 4 2 Total deaths of prisoners in period: 27 Average prison population: 80,891 (see Table 7.3 in this chapter) Deaths per 1000 of prison population: 0.334

4 15 5 0 Total deaths of probation users in period: 24 Average probation population: 224,000 (see Table 4.3 in Chap. 4) Deaths per 1000 of probation user population: 0.107 July 2020 0 0 August 2020 0 0 September 2020 0 0 Total July– Period: Period: September 2020 01/07/2020–30/09/2020: 01/07/2020–30/09/2020: 3 months 3 months October 2020 6 0 November 2020 16 4 December 2020 26 5 January 2021 16 14 February 2021 32 10 March 2021 24 1 April 2021 3 0 Total October Total deaths of prisoners in Total deaths of probation 2020–April 2021 period: 123 users in period: 34 Average prison population: Average probation 78,274 (see Table 7.3 in this population: 224,000 (see chapter) Table 4.3 in Chap. 4) Deaths per 1000 of prison Deaths per week per 1000 of population: 1.571 probation user population: 0.152 May 2021 0 0 June 2021 0 0 July 2021 0 0 (continued)

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Table 7.2 (continued) Month Year Total May–July 2021 Total March 2020–July 2021

Prisoners’ deaths ‘related to COVID-19’

Probation users’ deaths ‘related to COVID-19’

0

0

Period: 01/03/2020–31/07/2021: 17 months Total deaths of prisoners in period: 150 Average prison population: 79,071 (see Table 7.1 in this chapter) Deaths per 1000 of prison population: 1.897

Period: 01/03/2020–31/07/2021: 17 months Total deaths of probation users in period: 58 Average probation population: 224,000 (see Table 4.3 in Chap. 4) Death per 1000 of probation user population: 0.259

Source: Adapted from MOJ/HMPPS COVID-19 Summary Tables, Table 1 (13/08/2021) and Table 7.3

1000 members of the population and thus higher than for both prisoner and probation user populations (see Tables 7.1, 7.2 and 7.3 in this chapter). However, it must be noted that the above conclusions are tentative given that there is much dispute about COVID-19-related death rate comparisons whether within or between nations connected to definitional and other differences as well as the raw figures not taking account of clear differences in population groups, for example, the incidence of more younger and fewer older people in the prison and probation cohorts in comparison with the general population (see Braithwaite et  al. 16/03/2021: Grierson 16/03/2021; Spiegelhalter and Masters 2021b).

The Exceptional Delivery Model in Prisons: De facto ‘Closure’ It’s being imprisoned while you’re in prison. (Prisoner quoted by HMIP thematic report 11/02/2021a: 4)

Two ideal-type policy strategies to deal with the pandemic in prisons were open to government, one concerned with ‘closure’ and the other ‘opening’. The two strategies had many features in common, in that they

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Table 7.3  The prison and remand prison population, in England and Wales, by month March 2019 to July 2021 Month year 2019

Prison Remand Month, year population population 2020

Prison population

Remand population

March 2019 April 2019 May 2019 June 2019

82,634

8957

March 2020

83,052

10,043

82,593 82,617 82,710

9083 9052 9145

April 2020 May 2020 June 2020

July 2019 August 2019 September 2019 October 2019 November 2019 December 2019 January 2020 February 2020 – –

83,059 82,956

9210 9424

83,810

9602

83,664

9775

83,256

9603

82,868

9708

83,329

9969

83,708

10,134

– –

– – –

– – –

81,039 79,958 79,514 Average March– June 2020: 80,891 July 2020 79,643 August 2020 79,228

10,156 10,873 11,388

79,235

12,274

78,874

12,244

78,854

12,300

78,180

12,066

78,104

12,307

77,987

12,302

– –

September 2020 October 2020 November 2020 December 2020 January 2021 February 2021 March 2021 April 2021

12,262 12,458

– – –

May 2021 June 2021 July 2021

78,058 77,859 Average prison population October 2020 to April 2021: 78,274 77,972 78,324 78,318

11,768 12,017

12,588 12,727 12,753 (continued)

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Table 7.3 (continued) Month year 2019

Prison Remand Month, year population population 2020

–

–

–

Prison population

Average – prison population over the March 2020 to July 2021 period: 79,701

Remand population Average remand population March 2020 to July 2021: 11,860

Source: Adapted from MOJ (30/04/2019a Table  1.1, 30/07/2020i Table  1.1, 29/07/2021e Table 1.1 and 28/10/2021f Table 1.1)

were both concerned to limit the spread of COVID-19 infection and related deaths in prisons by suppression, meaning both an internal and an external lockdown. They differed though on the price that prisoners were expected to pay for intervention, as the closure policy was likely to extract a much higher prisoner price, whereas the opening strategy set humane limits to this cost. The ‘closure’ strategy aimed to accomplish suppression by prioritising external and internal lockdown and catering for unrestricted court demand for prison places, over prisoners’ living conditions, their legitimate communication needs and the provision of cell enrichment activities, in the context of expanding prison facilities rather than introducing effective emergency early release mechanisms. A further aspect of this model was the treatment of prisoners like any other members of the population in terms of inoculation, when vaccines became available, almost as if their less deserving status as offenders cancelled out the greater risk of infection from being incarcerated and their greater susceptibility to COVID-19 infection due to pre-existing health conditions and previous and on-going deprivation and current incarceration. The ‘opening’ strategy, aimed to accomplish suppression by prioritising external and internal lockdown, whilst restricting court demand for prison services and developing effective emergency early release mechanisms, whilst strenuously limiting the impact on prisoners’ living

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conditions and their legitimate communication needs and making adequate provision for cell enrichment activities. This policy also emphasised the need for urgency in the inoculation programme for inmates, based on significant differences between prisoners and the general population, namely, their incarceration in a place not dissimilar to a care home and their likely greater susceptibility to COVID-19 infection and death due not only to their incarcerated status, but also their pre-existing relevant health conditions and previous and on-going deprivation. In phase one, although both policy ideal types were mentioned in government announcements leading to much ambiguity, de facto ‘closure’ assumed priority in England and Wales as expressed through the exceptional delivery model (EDM), in the context of intermittent suppression in wider society. The implementation of this model in the first phase probably resulted in relatively low death rates amongst prisoners, at the cost of prisoner’s living conditions, mental health and well-being and ultimately prisoners’ cooperation. Prison lockdown had internal and external dimensions. Internally, prisons were locked down using a policy of ‘compartmentalisation’, that is, ‘reducing movements within prisons’, and by using single cell accommodation, where possible. However, to have followed this through systematically would have meant providing 15,000 more prison places and so compartmentalisation was combined with various, ‘new cohorting strategies … which were implemented from March 31’ including ‘protective isolation units’ where single cells would be ‘ideally’ used for known or suspected cases of COVID-19, ‘shielding units’ to protect the most vulnerable and ‘reverse cohorting units’ to accommodate new receptions or transfers for a period of 14  days (PHE 24/04/2020a: 2; House of Commons 04/06/2020). The normal regime of prisons was suspended meaning that all purposeful activity was cancelled including education classes (on 31/03/2020) and work groups, as well as chapel and gym (HMIP 11/02/2021a: 5). This meant that prisoners were confined to their cells for long periods— of more than 23 hours a day. HMIP, based on short scrutiny visits to 35 prisons, found that the average amount of time out of cell in the early lockdown period was 45  minutes (HMIP 11/02/2021a: 12). It also meant that prisoners lost the small amount paid to them for engaging in

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activities, in turn limiting their ability to purchase consumable goods. Despite the emergence of this new form of material deprivation, there was no centrally based income maintenance measures put in place in prisons, unlike the £20 per week extra payment to those on Universal Credit or the furlough scheme for laid off workers guaranteeing 80% of income (HMIP 11/02/2021a: 14). Alongside internal lockdown a number of external lockdown measures were enforced. Compartmentalisation also entailed limiting movements between prisons. Furthermore, all prison domestic visits were ‘cancelled’ on 24/03/2020 (MOJ 24/03/2020b; HMIP 11/02/2021a: 14). All other visits including those from monitoring bodies (IMB, PPO, HMIP) and legal advisors were also cancelled by 24/03/2020. Parole Board meetings were postponed on 31/03/2020. Through-the-gate service activity was limited to remote access via email, letters and phone calls. However, no attempt was made to limit court use of short prison sentences or remand, as Robert Buckland, was not tempted to ‘use the crisis as a pretext to change policy on sentencing’ (House of Commons Justice Select Committee 07/04/2020a: 7). In order to enable the ‘closure’ policy, in the context of no limits being imposed on courts using remand or short prison sentences and the reluctance to use emergency early release (see below), prison accommodation was expanded. Containers to provide prison cell accommodation were installed in HMPs Highpoint, Hollesley Bay and North Sea Camp and the closed Medway Secure Training Centre was converted for use as an adult jail for 70 prisoners linked to HMP Rochester, by the end of April 2020. The expansion of a number of other jails was also promised including HMPs Askham Grange, Coldingley, Hatfield, Humber, Lindholme, Littlehey, Moorland and Wymott. The expressed purpose of this provision was to enable the policy of internal isolation, with the intention to add 5000 new places (MOJ 09/04/2020d; MOJ 20/04/2020e). Although the primary thrust of the policy was ‘closure’, there was a half-hearted attempt to actually reduce or appear to reduce the prison population, and a more serious, but ineffective and patchy engagement in some enrichment activity for prisoners. The ill-fated ‘End of Custody Temporary Release Scheme’ (ECTRS) was announced on 04/04/20 and introduced 07/04/2020 (MOJ 04/04/2020c; MOJ 24/04/2020f ).

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Release via ECTRs was limited to prisoners who were ‘low risk’, had outside accommodation and were close to their release date and would agree to being electronically monitored. The number estimated for release was 4000 (Taylor and Grierson 04/04/2020), but the policy was temporarily suspended on 18/04/20, apparently because of the erroneous release of six prisoners (BBC News 18/04/2020b), but was then restored and struggled on into June 2020, with the actual number released reaching only 175 by 19/06/2020 (MOJ Item 1 26/06/2020g). The equally short-lived scheme to release prisoners on compassionate grounds was introduced at the same time as the ECTRS scheme, with similar aims. ‘Compassionate release’ included pregnant prisoners and women in mother and baby units, and other prisoners who were particularly medically vulnerable. Release was arranged via Release on Temporary Licence (ROTL), provided prisoners were low risk, had outside accommodation, were close to release date and would agree to being electronically monitored. Like the ECTRs, the scheme was temporarily suspended on 18/04/20 (BBC News 18/04/2020b). Only 43 prisoners had been released under the scheme by 19/06/20 (MOJ 26/06/2020g Item 1). According to Hardwick (18/11/2020: 7) the joint ECTRS and compassionate release schemes were finally abandoned in August 2020, with a total of only 316 prisoners having been released (see also HuffPost 17/06/2020; Inside Time 18/05/2020a). Table 7.3 (in this chapter) shows that the prison population was 83,052 in March 2020, falling to 81,039 by April 2020 and then 79,235 by September 2020 and decreasing to 77,972 by May 2021. The overall decrease from March 2020 to July 2021 was about 5000 prisoners or a decrease of 6%, but this was not due to the opening policies noted above, but to restricted court opening and case processing, as well as routine prison releases, mitigated by lengthening remand periods due to court backlogs. The government did put forward various initiatives to improve communication and provide regime enrichment. The HMIP Aggregate Short Scrutiny Report (19/08/2020a) gives us vital information here, based on visits to a sample of 35 prisons between April and July 2020 and helps us to test how far improved communication and enrichment activities had been introduced and progressed. It does, however, have to be set within

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the overall context, of at first at least, cooperation from prisoners, but later ‘increasing levels of stress and anxiety and falling levels of cooperation’ (HMIP 19/08/2020a: 6). I will deal with two aspects of the socalled enrichment process to assess how far they had been implemented by the time of the end of the emergency phase. Firstly, measures taken to satisfy prisoners’ legitimate communication needs and maintain contact with family and friends via phone credits, ‘email a prisoner’ and prisoner voicemail, the provision of secure handsets and satellite phones where there was no in-cell telephony and video calling or ‘purple visits’. Although HMIP (19/08/2020) found that the suspension of visits was ‘reasonable’ in the circumstances, it nevertheless caused ‘much distress and anxiety’ (para 4.1). Where in-cell telephony (in about 50% of prisons—see Chap. 4) was not available, prisons did provide mobile phones, however, although these were popular, their availability was limited (Para 4.3). HMPPS also provided £5 a week for each prisoner in phone credit with this being able to be used on in-cell and wing phones. However, the provision of in-cell telephony remained restricted. The use of wing phones was limited by time out of cell—prisoners had, in effect, less than one hour a day to undertake domestic tasks (like showering and using laundry facilities), take outside exercise and make phone calls. Single phones still had to be shared by all the prisoners on the wing. A reduction in the cost of calls was negotiated on a national basis. Unlimited letters were allowed. Prisoners were encouraged to use ‘email a prisoner’ and prisoner voicemail. However, although video or purple visits were possible, in fact HMIP only saw such a resource deployed for the first time at the end of June 2020 (Para 4.5) and the ‘roll out was too slow to relieve frustration’ (Para 4.5). Limited success was evident here. Secondly, the use of ‘enrichment’ or ‘distraction’ packs for prisoners’ in-cell use. A small minority of prisoners were exempted from the limits on purposeful activity—these included prisoners in open prisons (HMIP 19/08/2020a Para 1.15) and the 10% of prisoners in closed establishments undertaking jobs vital to prison functioning (e.g. working in the kitchens) (ibid.: Para 3.1). For most of the rest in-cell packs were provided by the prison education contractors, but these packs tended to be insufficiently targeted on the needs of individual prisoners and feedback

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from staff to prisoners was weak. Prisons did provide some enrichment through other methods including exercise programmes, sometimes broadcast on one of the in-house TV channels, routine film screenings, DVDs and books and limited outside exercise, except for those prisoners in the high security estate. As the IAP report put it, there was an urgent need to offer more ‘constructive, purposeful activity’ so that ‘prisoners should be doing time, not wasting time’ (Independent Advisory Panel September 2020b: 2). Provision was at best patchy and sometimes of questionable quality, with hardly any of it being little more than marginal relief from boredom rather than a positive contribution to rehabilitation or resettlement. Thus, the ECTR and the compassionate release schemes failed to take-­off, the attempts to enrich prisoner experience during the lockdown were beset by various problems, and mostly limited to providing some relief from boredom rather than positive use of the time and were given little practical priority. Overall, ‘closure’ was given priority, with the various early release methods proving ineffective and being rapidly abandoned and the enrichment provision patchy in terms of amount and quality. The closure policy did protect prisoners and staff from COVID-19 infection, often, with the prisoners’ cooperation. But it also had serious negative consequences which began to erode this sense of legitimacy. Prisoner experience was documented by a variety of reports with the following key aspects emerging: a growing sense of being doubly confined; growing anxiety and distress; increasing isolation from families; reduced support including mental health support; lack of consistent and timely information and communication; and various and growing facility issues concerned with access to medication for new prisoners and those coming back from hospital and the impact of halted estate maintenance on living conditions and the availability of prison premises (User Voice May 2021; IAP May 2020a and September 2020b; House of Commons Justice Select Committee 15/07/2020b). The final word in this section must go to the ‘The Guardian’ editorial of 24/05/2020 which clearly recognised that the policy of closure had limited the deaths due to COVID in prisons, but tellingly commented that:

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Solitary confinement is harmful, and only used in English and Welsh prisons in tightly regulated circumstances. The current situation, in which being locked up for 23 hours a day has become almost universal, cannot go on. (‘The Guardian’ Editorial 24/05/2020)

The Recovery of Prisons? When it got good on the outside, it did not change in here. (Prisoner quoted by HMIP Thematic Report 11/02/2021a: Para 2.4). The restrictions on their daily lives had started to feel unfair and punitive. (HMIP 11/02/2021a: Para 3.1)

But the restrictions did go on and it is difficult to discern if and when prisons did ‘recover’ up to the summer of 2021 on the basis of existing evidence. What is clear that there was little alleviation of restrictions at least up to as late as June 2021. Plans for lifting the initial lockdown in prisons were laid in June 2020, to be activated from 6 July 2020 (Inside Time 06/07/2020b). The guidance for the process set out a ‘conditional road map’ for opening up prisons and had three objectives, the ‘preservation of life’, the maintenance of security, stability and safety and the provision of ‘sufficient capacity’ in prisons to ensure that ‘we have enough space to receive from the courts and sufficient capacity to meet overall demand, as well as sufficient staffing and resources to run establishments’ (MOJ/HMPPS 02/06/2020: 2). Although the plan seems to have devolved control to local initiatives, in fact the allocation of a prison to a tier remained a central government prerogative. How far did the opening up of prisons go by the early summer of 2021? Did it make a difference to prisoners’ experiences and living conditions? The limited available evidence suggests that the opening up process was only minimally achieved, before the policy changed again and lockdown once again became the norm for a lengthy period, as signalled by the MOJ press releases in January 2021 (MOJ 20/01/2021a). The subsequent lifting of restrictions has been very slow. Domestic visits were initially resumed in most prisons during the July– September 2020 period, but the number of visits was restricted, physical contact between visitors and prisoners was prohibited and social

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distancing applied, and catering and children’s play facilities remained closed. Some prisoners indicated to the HMIP inquiry for the February 2021 thematic report on prisoners’ experience during the pandemic between 30/09/20 and 05/11/2020 that there was inconsistency with how the rules relating to visiting were applied by staff. Prisoners found the overall experience of visits unsatisfactory and take up was low, with only 4% of prisoners in the prisoner survey indicating that they had been able to see friends or family more than once in the preceding month (HMIP 11/02/2021a: Para 2.41: HMIP 20/07/2021b: 59). ‘Purple visit’ resources remained limited and even when available video calling was restricted to one 30-minute call per month and had frequent technical faults (HMIP 11/02/2021a: Para 2.31). The HMIP Annual Report 2020–2021 notes that ‘purple visits’ provision was subsequently extended to all prisons, despite the slow initial roll-out and that the scheme was a ‘notable success’ acting as a ‘lifeline’ for some prisoners (HMIP 20/07/2021b: 14 and 59), although this document does not comment on the issues raised above but does note that only 6% of prisoners claimed in the survey that ‘purple visits’ allowed them to see friends/ family more than once in the preceding month (HMIP 20/07/2021b: 58). Alongside the dearth of family visits, support for prisoners declined— COVID restrictions negatively impacted on peer support, staff were very often too busy, the key worker scheme, still not fully embedded by the start of the pandemic, was curtailed after the outbreak and only re-­ introduced for those most in need (HIMP 11/02/2021a: Para 2.53). Prisoner surveys by HMIP in the July 2020–March 2021 period show that ease of obtaining access to a doctor decreased from 33% in 2019/20 to 21% in 2020/21 (HMIP 20/07/2021b: 42; see Table 4.13 in Chap. 4), ease of access to mental healthcare for the 52% of prisoners claiming they needed this was poor, with only 22% claiming that they experienced ease in accessing such services. Furthermore, only 24% of prisoners said that they found it easy to access substance misuse workers (HMIP 20/07/2021b: 43). Prisoner activity remained highly restricted. The resumption of behavioural programmes was ‘limited and lacked pace’ (HMIP 20/07/2021b: 62). ‘Progress towards reinstating in-person learning was slow and, since March 2020, and most prisoners had lacked meaningful opportunities to

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gain skills to reduce their likelihood of reoffending’ (HMIP 20/07/2021b: 55). Little surprise then that in the prisoner survey, a decrease in the ease of obtaining places was recorded: in education from 79% in 2019/20 to 22% in 2020/21 and in prison work from 50% to 21% (Table 22: HMIP 20/07/2021b: 56), although the latter figure shows some improvement from the result reported by the Criminal Justice Joint Inspectorate (CJJI) report covering the July–December period when only 11% of prisoners reported ease of access in gaining a prison job (CJJI January 2021: Paras 2.8 and 3.6). This lack of employment given that no ‘furlough’ scheme was operative continued to detrimentally affect ‘income’. According to the PRT, some prisons provided an extra £5 per week as income for prisoners (see PRT CAPPTIVE Report 2 2020: page 23). The ability to purchase items in the restricted ‘canteen’ was also a matter of concern, particularly regarding cleaning products (see PRT CAPPTIVE Report 2 2020: 22). As noted above £5, a week per prisoner was provided in phone credit and phone charges were reduced. The restriction of activity simply meant more time spent in cells. Time out of cell had slightly improved with the average rising from 45 minutes in the initial lockdown to 90 minutes later (HMIP 20/07/2021b: 35). However, the HMIP prisoner survey found that only 9% of prisoners reported that they had six hours or more out of cell and 40% reported that they had less than one hour out of cell (HMIP 20/07/2021b: 115). Only 54% of the male prisoners reported receiving in-cell activity packs and of these only 47% found them to be helpful (HMIP 20/07/2021b: 119). As for prisoner resettlement, an important matter given the length of the period involved and the fact that prison releases continued, the full range of courses was not re-instated, release on temporary licence remained suspended/little used up to March 2021 at least, offender behaviour programmes were slow to resume as noted above and through the gate release preparation was restricted, where it happened, to remote contact, with face-to-face contact limited to the most complex cases and/ or the most vulnerable. With the exception of housing support, external support services also remained limited (HMIP 20/07/2021b: 65). A number of other issues were evident. Of particular note were criticisms concerning the carelessness of staff with regard to mask wearing and social distancing, the inadequacy of cells, especially shared cells and

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the problem of prisoners filling the time and being subject to chronic boredom, and consequent physical and mental deterioration. The Prison Reform Trust published two reports on the mental and physical health of prisoners. The first paper paints a picture of prison mental healthcare just functioning and prisoners experiencing the consequences of being ‘banged up’ including an even greater loss of autonomy (‘I have no control over anything’), social isolation (‘It becomes more difficult to escape the loneliness of my cell’), increased tension between cell sharers and generally increasing tension and anxiety (‘There’s a build of pressure and tension as bang-up time goes on’), made worse by boredom and long periods for counter-productive rumination, combined with very limited mental health support from healthcare or Listeners (i.e. fellow prisoners trained by the Samaritans to provide emotional support to their peers) having a negative impact on mental health. Similarly, with the exception of nursing staff and substance misuse services, healthcare is again seen to be just functioning. ‘Bang-up’ is seen to produce a number of issues including weight and fitness problems, sleep disruption, access to medication issues and liaison with out of prison service difficulties (EP:IC February 2021a and 2021b; Nuffield Trust 20/10/2021). The experience of women prisoners was similar to that of men—in terms of long confinement periods, lack of outside contacts and the withdrawal of activities—but HMIP also found that there had been a failure to take account of women prisoners’ specific needs by prisons especially regarding external contacts and resettlement, leading to a higher rate of self-harm (HMIP 20/07/2021b: 67–69). The overall view of HMIP on this period, and to a certain extent the earlier period too, was that: ‘What prisoners told us calls into question whether the right balance had been achieved between managing the risk posed by COVID-19 and providing them with enough meaningful activity, engagement and time out of cell. Many prisoners feared being released with increased mental health problems and without having had the chance to address their offending behaviour. The long-term consequences of such prolonged and severe restrictions in prisons could be profound for prisoners and the ­communities

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to which they ultimately return’ (HMIP 11/02/2021a: Para 3.5). Little change on this estimate is evident in the HMIP Annual Report of July 2021.

In wider society, vaccines became available from early December 2020. However, an inoculation programme for prison inmates only began on 29/01/2021 (Anderson 29/01/2021), with the Prisons Minister justifying the delayed beginning of vaccination by referring to the ‘priority list set out by the Joint Committee on Vaccination and Immunisation (JCVI) and in line with the national roll-out for the wider population’ (MOJ 20/01/2021a). In fact, according to Siva (12/12/2020) the JCVI document made ‘no specific reference to prisons’, but dealt with prisoners as if they were members of the general population. Little evidence has subsequently emerged as to how the vaccination programme in prisons has progressed as the HMIP Annual Report 2020–2021 published in the summer of 2021 and related to visits to prisons made between July 2020 and March 2021, only noted that vaccination started as indicated above, but failed to comment on how far the vaccination programme had proceeded by March 2021, all the more concerning given that there is supposed to be parity in healthcare in prisons and community and seems to ignore the increased risk that prisoners face because of their incarceration. This failure to comment on the vaccine roll-out in prisons is in marked contrast to government bragging about the roll-out for the general population. What is clear is that England seems to be lagging behind some other prison vaccination programmes, with some 56% of prisoners having received their first vaccination dose, compared with 77% in Poland, 85% in Spain and 69% in Sweden (but better than the Czech Republic 1%, Estonia 12%, Finland 44%, Luxembourg 34%. Moldova 13% and the USA with 50%). It is unclear though whether this is due to slow vaccination roll-out in England and/or vaccine scepticism on the part of prisoners. Punitive sentiments and the relegation of prisoners to the less deserving background seem to have played some part in this policy (see Prison Policy Initiative 18/05/2021; Inside Time 01/09/2021). A more up to date window on the extent of prison recovery is provided by a review of the HMIP reports on individual prisons based on inspections undertaken in the spring and summer of 2021. There were, up to 14/12/2021q, 16 reports relating to 17 prisons including in date order of

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publication of the report or urgent notification, Send (May 2021: female, training prison—HMIP 26/08/2021c), Chelmsford (August 2021: male, training prison and YOI—the subject of a urgent notification  report 27/08/2021d), Haverigg (May 2021: male, open prison—HMIP 01/09/2021e), Oakwood (May 2021: male, local and training prison— HMIP 03/09/2021f ), Low Newton (June 2021: female local and resettlement prison—HMIP 07/09/2021g), Wormwood Scrubs (June 2021: male local prison—HMIP 09/09/2021h), Swinfen Hall (June/July 2021 male, training—HMIP 06/10/2021i), Usk and HMP Prescoed (June 2021: male, training prison and male open prison—HMIP 11/10/2021j), Deerbolt (June/July 2021 male training—HMIP 12/10/2021k), Downview (July 2021: female, closed training prison and YOI—HMIP 27/10/2021l), Hull (July 2021: male, local—02/11/2021m), Belmarsh (July–August 2021: male local—HMIP 12/11/2021n), Brinsford (August 2021: YOI, young adult males, training and local—HMIP 30/11/2021o), Erlestoke (August 2021: male training—HMIP 07/12/2021p), Woodhill (September 2021: male training—HMIP 14/12/2021q) and Manchester (September 2021: male training—HMIP 21/12/2021r). A number of comments can be made about these data pertinent to assessing recovery. The overall conclusion is that only very few (3) of the 17 prisons seem significantly to have moved away from COVID-19 restrictions by the time of the inspections took place. This means that for the majority of prisons, inspected restrictions still existed regarding the provision of purposeful activity, time spent out of the cell, the quality and quantity of social visits and access to resettlement processes. Tables 4.11 and 4.12 in Chap. 4 allow a comparison of normal inspections results just before the pandemic (2019/20) and during the spring and early summer of 2021 during the ‘recovery’ period (deemed the recovery sample). The tables chart the proportion of prisons rated as good and reasonably good with regard to the four inspections features—‘safety, respect, purposeful activity and rehabilitation and release planning’. For the 14 male prisons, all of the four assessment indicators show a decrease in the proportion of prisons placed in the ‘good’ and ‘reasonably good’ categories comparing the 2019/20 and recovery sample scores. For the three female prisons, one of the assessment indicators show stasis (‘safety’), two show

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deterioration (‘respect’ and ‘purposeful activity’) and one shows improvement (‘rehabilitation and release planning’). A ‘before’ pandemic and ‘after’ or at least in the later stages of the pandemic examination of the data is possible by comparing the results of the inspections undertaken in 2021 (the recovery sample) with the results of the last previous inspection for each prison (the pre-pandemic sample). The results support the previous conclusion, namely, that a deterioration in prison conditions, worse in male as opposed to female prisons, has occurred. For male prisons, the before and ‘after’ comparison reveals deterioration in three of the four of the HMIP assessment factors (‘safety’—moving from 35% to 29% of prisons falling into the ‘good/ reasonably good’ categories; ‘respect’—falling from 59% to 53% in these categories; and ‘rehabilitation and release planning’—falling from 59% to 35% in these categories). One assessment, for ‘purposeful activity’, found stasis but at 29% being ranged ‘good/reasonably good’. The deterioration is less marked for female prisons—with only one HMIP assessment category—‘respect’—showing a decrease from 100% (3/3) to 67% (2/3) and three showing stasis (‘safety’, ‘purposeful activity’ and ‘rehabilitation and release planning’) (see Tables 4.11 and 4.12 in Chap. 4).

 e Impact of the Pandemic Measures on Existing Th Prison Policies The pandemic impacted on both the prison estate transformation programme and the efforts to change the organisation and operation of prisons. For an extended period, the pandemic limited building activity. It did not stop the Johnson government from expanding their ambitions to provide new prison places. As noted in Chap. 4 the first Johnson government, totally focused on providing new prison places (as opposed to a new for old policy), re-set the target for new prison places to 10,000 in August 2019 but without a target date (MOJ 11/08/2019). This was followed by a series of announcements up to December 2021 which culminated in a substantially increased target of new prison places of 18,000 by ‘the mid-2020s’ and then 20,000 new places by the same target date

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(HM Treasury 27/10/2021a), later affirmed by the Prisons Strategy White Paper (MOJ December 2021g). It was maintained at least to December 2021 that the commitment to provide the target of new prison places did not include the prisons already planned at Wellingborough (now known as HMP Five Wells) or Glen Parva. The Prison Strategy White Paper does not repeat this commitment (MOJ December 2021g: 13). To meet the various targets, it emerged that five new prisons were to be built, one in East Yorkshire (i.e. HMP Full Sutton 2, with 1440 places), one in the North-West and two prisons in the South-East (with the latter three providing 1680 places each), totalling 6480 new places (MOJ 28/06/2020h Press Release; see also MOJ December 2021g: 13). It was noted in June 2021 that the MOJ intended to build a new prison near to HMPs Grendon and Springhill, although it is not clear whether this is in addition to the above or as part of the previous plan (see Bucks Radio 13/07/2021). The plans also included the extension of four existing male prisons including HMP Rye Hill, to be expanded by 462 places by 2022, and HMPs Guys Marsh, Stocken and High Down extended by 2023 by 180, 206 and 90 new places, respectively, making an overall total of 938 new places by 2022/2023 (MOJ 12/10/2020l Press Release; see also MOJ December 2021g: 13). Finally, it was announced in January 2021 that the plan included the provision of 500 new prison places for females, without any specification of where they would be or when made available (BBC News 23/01/2021c; see also MOJ December 2021g: 55). Thus, a monumental task faces the second Johnson administration, made worse by the extra 2000 places added by the Spending Review (HM Treasury 27/10/2021a). The plan has emerged in a piecemeal fashion and without any systematic programme or timetable. Adding the prison places created by the four new prisons (6720), to Full Sutton 2 (1440 places), the 938 new places created by the extension of existing premises, and the recently announced new places for women (500), provides a total of some 9598 new places. Even if all the proposals so far reach fruition (and they may not), there will be a shortfall in new places of about 10,400 or 52% (see Table 4.2 in Chap. 4). Although the Budget Statement, in March 2021, was very tight-lipped about criminal justice in general and prisons in particular and made no mention of prison building, extension or the re-purposing of existing non-prison premises

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for prison use (HM Treasury 03/03/2021b), the later budget document and the Prisons Strategy White Paper (MOJ December 2021g) both promised considerable funds to do exactly this (HM Treasury 27/10/2021a). However, it still remains unclear, in late 2021, whether the new target will be met by ‘the mid-2020s’ and seems to be a case of promise now and deny later. Furthermore, as Peter Dawson in the ‘The Justice Gap’ notes, the money allocated by the budget made no mention of support for the running costs of such new establishments which will total about £860m per year (Dawson 28/10/2021). All of this activity avoids a bigger question, which is whether the expansion of prison places is in itself justified, given the unresolved issues about the over-use of prison sentences (especially short prison sentences, especially for female offenders—see Chap. 6), the under-use of community sentences (see Chaps. 3 and 5) and the over-use of remand in custody by the courts and the limited arguments the government has adduced in favour of the expansion, namely, to cater for the demand caused by courts dealing with their COVID-19 backlogs and to take account of tougher sentencing (MOJ December 2021g: 3). Of course, both beg the question as to why courts have to necessarily use custody to solve the backlog and why sentencing needed to get ‘tougher’. The whole debate sustains the image of the prison as the cure all for crime. It dramatically illustrates the continued fetishisation of the prison, the lack of prison policy-making accountability and as a consequence how prison policy can become the plaything of a populist and punitive government, a set of issues simply not affected by the proposals for greater ‘accountability’ noted below. How did the transformation of the organisation and operation of prisons fare up to the summer of 2021? Outsourcing, at least of new prisons, had proceeded, as built-in to previous and new plans (see MOJ December 2021g: 14). On the issue of increased frontline prison staff numbers, source data from the Prison Service Pay Review Body (PSPRB), used in Chap. 4, was finally published in October 2021 for the preceding calendar year and its findings largely concurred with MOJ sources concerned with equality issues. They both note that between the calendar years 2019 and 2020, a decrease in Bands 3–5 prison officers (Bands 1–2 and above 5 are not included in the MOJ equality count) occurred of about 3%. Overall, according to PSPRB data there was a 1% overall decrease in all

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prison staff comparing figures for 31/12/2019 with the same date for 2020 (see Table 4.3 in Chap. 4). The decreases in Bands 3–5 officers of 3% and overall frontline prison staff of 1% represent small decreases, but they are significant as they reveal an attenuation of the overall intent to increase officer numbers and occurred in the context of the pandemic when staff were stretched, attempts to re-start the prison officer-­dependent key worker scheme were afoot and there were many prison officers on the landings who lacked experience of the frontline job (MOJ 19/03/2021b). For example, the HMIP inspection report for HMP Wormwood Scrubs noted that some 25% of officers at the time of the inspection had started work during the pandemic (HMIP 09/09/2021h: 9). In these circumstances, it is not clear how the drive to recruit 5000 new prison officers set out in the Prisons Strategy White Paper will be accomplished (MOJ December 2021g: 9). However, the more recent HMPPS Annual Report (16/12/2021: 8) suggests a reversal of the downward trend at least for Bands 3–5 prison officers, but cannot be corroborated until the PSPRB figures are published in 2022. As noted in Chap. 4, the key worker scheme (KWS) was not fully operational in male closed prisons in March 2020 when the pandemic struck. During the first phases of the pandemic, the KWS was suspended, with only a limited service being re-introduced in male prisons for those prisoners most in need during early 2021 (HIMP 11/02/2021a: Para 2.53). The intention on the part of the MOJ to introduce the KWS into female jails was suspended at the outbreak of the pandemic. For male prisons, subsequent progress on the KWS seems to have largely stalled and has been only very slowly revived, with only a few positive developments evident at the time of the prison inspections accomplished in May–September 2021. For the three female prisons inspected to August 2021, Low Newton, Send and Downview, it was noted that some work had been accomplished prior to the pandemic. After this revival had been slow, for example, only starting in May 2021 in HMP Low Newton, then enabling 25% of the prison population access to this service (HMIP 07/09/2021g: 18). The Prisons Strategy White Paper recognises the important role that the KWS can play in prisons and properly recognises that there is much still to do to extend this scheme to the male open and all women’s prisons. Unfortunately, the White Paper fails to acknowledge

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the still patchy provision of KWS in male closed prisons (MOJ December 2021g: 64). Purposeful activity was suspended entirely during March–December 2020, except for prisoners working in essential services like the kitchens, and recent reports from HMIP on individual prisons suggest that the re-­ opening of purposeful activity has been very slow, only starting in some prisons in May 2021. A clear guide to the extent of purposeful activity provision is the amount of time spent out of their cells by prisoners, in particular the proportions of prisoners who obtain less than two hours per day during weekdays and less than two hours per day at the weekend out of their cells. A comparison of prisoners’ answers to these two questions contained in the HMIP prisoner survey for the 17 prisons inspected May to September 2021 (the recovery sample) with the last inspection reports for each prison (with inspections being undertaken between 2017 and 2020, prior to the pandemic, deemed here the pre-pandemic sample) is illuminating. Data for the three prisons inspected in 2017 is not available as the question about cell lockdown time at weekends was not asked, with this affecting HMPs Erlestoke, Havergigg and Downview. Answers to these two questions reveal that, for male prisoners, with the exception of HMP Usk, there has been a very significant increase in the proportions of prisoners obtaining less than two hours a day out of their cells on weekdays and at weekends. The current position, as revealed by the 2021 inspections, is that, with the exception of HMPs Prescoed (0%) and Usk (5%), between 41% and 70% of prisoners were still locked up 22 hours a day in the week. This contrasts very sharply with the figures for the last previous inspection reports which were in the range of (again excluding Prescoed and Usk at 0% and 24%, respectively) 3–51%. Analysis of the recovery sample data on time out of cell at weekends reveals, the exception of Prescoed (6%) and Haverigg (9%), between 65% and 84% of prisoners were locked up still for 22 hours a day. This contrasts very sharply with the figures for the last previous inspection reports which were in the range of (excluding Erlestoke and Haverigg because such information was not available and Prescoed (4%), Usk (6%) and Oakwood (13%)) 18–80%. For female prisoners, a similar pattern is evident—the recovery sample inspection reports revealed that in the weekdays the proportion of female

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prisoners locked up for 22 hours a day was between 30 and 42% (in contrast with the pre-pandemic sample inspection reports which revealed a range between 6 and 10%). At weekends, the recovery sample reports reveal that between 57 and 65% of women prisoners were locked in their cells for 22 hours a day, compared with 5–11% as shown by the last previous inspection reports. When combined with the above paucity of in-cell education, this means that majority of the prisoners were languishing in their cells with at best mere diversion and, more than likely, little by way of self-­ improvement, learning skills or reducing reoffending (for the inspections in 2021, see HMIP 26/08/2021c; 27/08/2021d; 01/09/2021e; 03/09/2021f; 07/09/2021g; 09/09/2021h; 06/10/2021i; 11/10/2021j (2), 12/10/2021k; 27/10/2021l; 02/11/2021m; 12/11/2021n; 30/11/2021o; 07/12/2021p, 14/12/2021q and 21/12/2021r; and for the last previous inspections of the same establishments, see HMIP reports for Haverigg 16/08/2017, Erlestoke 07/11/2017, Downview 13/12/2017; Usk and Prescoed 20/02/2018, Brinsford 27/03/2018, Low Newton 06/06/2018, Belmarsh 12/06/2018, Woodhill 19/06/2018, Oakwood 10/07/2018, Hull 07/08/2018, Deerbolt 11/09/2018, Chelmsford 12/10/2018, Manchester 20/11/2018 and Send 21/11/2018; Swinfen Hall 10/01/2019; Wormwood Scrubs 11/02/2020). Since purposeful activity includes opportunities to improve qualifications, develop appropriate general and specific work skills, as well as participate in accredited or behavioural programmes, its complete cessation and then very slow re-opening has had a marked negative impact on opportunities for rehabilitation and resettlement, affecting determinate sentence prisoners, many of whom have been released without such help and are likely to pose a greater threat in terms of reoffending and thus to public safety. It has also detrimentally affected the release dates of those prisoners subject to parole board decisions partly because parole board visits to prisons were suspended for a significant period, but also because prisoners had not been provided with the opportunity to undertake activities that might have demonstrated to parole boards, when they resumed, a propensity to reform and their suitability for release. The resumption of social visits, suspended during the pandemic, has also been slow and many restrictions placed on the social visits allowed,

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some of which, bans on physical contact, for example, differentially impact on male and female prisoners, with women prisoners finding bans of physical contact with their visiting children particularly damaging, to both themselves and their children. The impact of pandemic policies on the opportunities for the rehabilitation and resettlement of prisoners is revealed by prisoners’ answers to the HMIP questionnaires in the pre-­ pandemic and recovery inspection reports samples. The Prisons Strategy White Paper (MOJ December 2021g), in the context of highlighting the essential role of imprisonment as a form of incapacitation, suggests various ways to revive rehabilitation. However, whether such expressions of intent will be translated into concrete action will depend on how far punishment trumps rehabilitation in the sentiments and actions of Conservative politicians in the next few years as the reality of the apparent holiday from austerity bites. An unintended consequence of the ‘closure’ policy in prisons was to limit the supply of mobile phones and related equipment. The same policy highlighted the need to, nevertheless, make provision for the legitimate communication needs to severely isolated prisoners. Given the slow development, patchy availability and narrowly prescribed limits of alternative communication methods, especially ‘purple visits’ and the fact that still only about two-thirds of prisons provided in-cell telephony (only 10 of the 15 inspected by HMIP between May and August 2021 had in-cell telephony), whether the heightened need for prisoner communication was met was therefore a chance event. The Prisons Strategy White Paper (MOJ December 2021g: 17 and 26) places an emphasis on limiting the demand of mobile phones by not just increasing in-cell telephony but also ‘in-cell technology’ (i.e. laptops, etc.) whilst also limiting the illicit supply of mobile phones. Time will tell whether, as in the past, images of the ‘war’ on supply supplant the motivations to limit illicit demand. The attempt to transform prison scrutiny arrangements was previously wrecked on the rocks of political instability long before the emergence of the pandemic (see Chap. 4). The pragmatic urgent notification protocol which emerged remains in place and was used for the seventh time for HMP Chelmsford (HMIP 27/08/2021d). No changes to this protocol have been made nor are proposed by the Prisons Strategy White Paper,

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with the urgent notification protocol not even being mentioned (MOJ December 2021g). However, on the one hand, it would seem that the second Johnson government wished to pursue the matter of reforming the external scrutiny of prisons, albeit with policies still rooted in new public sector management assumptions. In August 2020, a consultation paper was published by the MOJ which deployed arguments concerned with greater effectiveness and a drive for greater independence from government, asking for a response to proposals to place Prisons and  Probation Ombudsman’s Office (PPO), HMIP and the Independent Monitoring Board on a statutory basis and place the investigatory powers of the PPO and HMIP on a statutory footing (MOJ August 2020j). However, no actions had been taken with regard to these matters by the summer of 2021. The Prisons Strategy White Paper (MOJ December 2021g: see particularly Chap. 6) goes back to the 2016 Prison Safety and Reform White Paper and the Prisons and Courts Bill 2017 for its inspiration placing once again a great emphasis on governor independence (again lacking in credible justification) and once again subjecting governors to ‘accountability’ through Key Performance Indicators and league tables. There is no indication in the White Paper that any judgement on the performance of prisons is not merely a technical or pragmatic issue, but a contested, social and political judgement requiring not MOJ expediency, but parliamentary decision-making. The Prisons Strategy White Paper then goes on to affirm much of the previous expressions of intent promising a legislative programme to achieve this. On the other hand, one significant aspect of accountability generally and prison accountability in particular is judicial review. As Green indicates, judicial review ‘is the general name for how courts in England and Wales consider the lawfulness of government decisions-making and law-­ making’ (Green 10/08/2020). Robert Buckland, the previous justice minister, had made attempts to limit this process with the Judicial Review and Courts Bill introduced into the Commons in July 2021, but had achieved little progress, before his sacking (see MOJ 21/07/2021d). The new Minister of Justice, Dominic Raab, seems intent on speeding up the process. Any limitation on judicial review is likely severely to restrict the

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ability of prisoners to hold prison officials and the MOJ to account. No mention is made of this in the Prisons Strategy White Paper.

 e Overall Success of the Government’s Prison Pandemic Th Response in Its Own Terms and How It Impacted on the Penal Crisis By summer of 2021 the ‘recovery’ of prisons had not been accomplished. This meant that not even a return to their pre-pandemic, parlous state had been achieved. Furthermore, the pandemic had exposed the lack of resilience in the prison system, resulting from years of austerity. Pandemic management exacerbated the material prison crisis. Any legitimacy that government had at first in their efforts to manage the pandemic in prisons amongst prisoners was rapidly eroded by the actual experience of prisoners and their families.

Probation Most ‘probation’ work, as defined in Chap. 5, involves supervision in the community and was thus directly subject to the waxing and waning of the measures taken to control the pandemic in the community. Through-­ the-­gate support, in contrast, was conditioned by measures put in place in prisons. At the start of the pandemic, in comparison with courts and prisons, probation was even more disadvantaged. Not only had it been starved of funds and endured an intense crisis of moral justification like the courts and prisons, but the enduring crisis had been exacerbated by the recent bodged attempt to privatise a significant part of all probation work— including through-the-gate support, unpaid work, the supervision of low risk offenders on community orders (COs) and suspended sentence orders (SSOs) and released prisoners on licence—leading to the further financial difficulties of the CRCs, lack of effectiveness in terms of reducing reoffending and public protection and an intense credibility crisis with the courts and the public. This situation was then exacerbated when

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the delayed first attempt to deal with problems arising from the failed privatisation, based on retaining at least some outsourcing put in place by the May government, was replaced by the second Johnson administration, with a new plan to re-nationalise all of probation, a move that was only announced in June 2020, during the pandemic and even this solution did not rule out privatisation again in the future and was not due to take effect until June 2021 (see Chap. 5). This section, in keeping with previous sections, adopts a format that examines the exceptional delivery model, the recovery plan, the impact of the pandemic arrangements on pre-existing probation policies and offers an assessment of whether the efforts to deal with the pandemic were successful in their own terms and whether they assuaged the prison crisis.

The Exceptional Delivery Model (EDM) and Probation New coronavirus hit at the heart of probation work, personal contact, rendering it problematic. The response of government was to introduce an ‘exceptional delivery model’ (EDM) for probation, the main features of which were set out to the House of Commons Justice Select Committee by the Minister of Justice, Robert Buckland, and Dr Jo Farrar, CEO of HMPPS, in March 2020 (House of Commons Justice Select Committee 24/03/2020e; House of Commons Justice Select Committee 20/07/2020c: Para 11). In what follows, I will indicate the main features of the EDM in relation to probation and then consider the issues that arose as evidenced by four main reports in the March–June 2020 period (House of Commons Justice Select Committee 20/07/2020c; User Voice May 2021; HMIPr November 2020; CJJI January 2021). The EDM led to a drastic reduction, even elimination, of face-to-face working and a move to managing services users via remote working (phone calls, Skype calls and video messaging) for all but high-risk offenders. To have any hope of working, this change required more frequent contact with service users than in the past, making extra demands on the service. It also meant a reduced opportunity for the development of a rehabilitative relationship and led to the potential for increased reoffending, with implications for lowered public protection. In the event, remote

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working proved to be a flexible approach (CJJI January 2021: Para 2.12), albeit with some attenuation of relations and some consequent lack of clarity concerning requirements, according to the User Voice survey (August 2020). Remote working, although an advantage to some user groups, was found to be unsuitable for some service users, especially the vulnerable, and those who lived in unstable home circumstances (CJJI January 2021: Para 2.12). Further, reduced support for the vulnerable from probation was exacerbated by the withdrawal of many complementary community support services. The User report (May 2021) noted that 33% of the offenders in its sample in receipt of probation services said that they had suffered as a result of the withdrawal of drug and alcohol and mental health services (see also HMIPr November 2020: 9–10). Remote working also had a clear negative impact on resettlement services, ‘resulting in poor understanding of prisoners’ needs on release’ (CJJI Para 2.13), although two of the important support services relating to income maintenance (if not immediate grants) and accommodation remained available (CJJI January 2021: Para 2.14, House of Commons Justice Select Committee 20/07/2020c: Paras 2.13, 2.14 and 56). The EDM required the prioritisation of high-risk offenders to enable them to receive any face-to-face contact provided and door-step, although not home, visits. HMIPr raised questions concerning the adequacy of limited face-to-face contact and door-step visits for such offenders in terms of the limits it imposed on relationship building and rehabilitation (HMIPr November 2020: 9). However, initial concerns as to whether public protection would be achieved by managing high-risk offenders in this way were largely able to be dismissed as the HMIPr report (November 2020: 10) commented ‘Services to manage the risk of harm that individuals presented were largely being delivered well’. The reputation of the service was not further impugned, although this applied more to the activities of the NPS, rather than the CRCs. The EDM required the cessation of other probation service activities such as unpaid work and approved activities as well as the restriction of and/or closure of Approved Premises (AP). The cessation of unpaid work and approved activities led to the build-up of a backlog of incomplete work/activities as ‘rehabilitation activities fell to very low levels during the first national lockdown’ and as a result ‘too many individuals’

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sentences are expiring before the they have developed the skills to move away from further offending’ (CJJI Report January 2021 Para 2.11). According to the CJJI (January 2021: Para 4.1), five probation Approved Premises were closed directly due to the pandemic, and four others closed for other reasons, as well as 21% reduction in capacity being imposed, due to COVID restrictions, on those remaining open. There were also difficulties associated with keeping Approved Premises open, without purposeful activities. The EDM had a number of impacts on staffing—it accentuated staff shortages (House of Commons Justice Select Committee 20/07/2020c: Para 29) and contributed to higher staff sickness rates connected to shielding and quarantining, but it did improve the ability to re-deploy staff temporarily from other areas. The EDM also led to increased caseloads (ibid.: Para 31). Many staff worked from home. This produced technical issues related to equipment, issues connected to staff lack of IT skills, problems related to lack of software availability (particularly ‘Google Meeting’ amongst CRC staff). It also led to social issues connected to trying to balance domestic demands like childcare, home schooling and responsibility for relatives, with home working (HMIPr November 2020: 8).

The Probation Recovery Plan Towards the end of the initial lockdown period, when probation services had been greatly restricted, a recovery plan for probation was articulated with a view to implementation when conditions allowed (HMPPS/NPS June 2020). The objectives of the plan were threefold: to ‘protect the health of staff, the public, and service users’; to ‘maintain public protection and rehabilitation’ and to ‘provide sufficient capacity’, thereby ensuring that we have enough resources to respond to court orders and sufficient capacity to meet overall demand, as well as sufficient staffing and resource to meet potential backlogs (House of Commons Justice Select Committee 23/06/2020i: Para 20). The programme was expected to happen in three steps: an initial short-­ term holding exercise, then a cautious and risk-assessed scaling back of

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door-step and remote contact and a scaling up of face-to-face work, but without any expectation this would mean a return to normal working or a drastic reduction in backlogs, but would prioritise high-risk cases. It was recognised that this stage 2 scaling up, in order to allow for office meetings, would require the adaptation of premises. Then, subject to government policy on the pandemic in wider society and when ‘the Government assessment of risk from COVID-19 warrants further adjustments to the remaining measures’, stage 3 would follow, based on opening remaining offices in a coordinated way, restarting Unpaid Work and Interventions on a larger scale, restarting face-to-face training and associated activities and planning to open Approved Premises (AP) which had been closed due to COVID-19 (HMPPS/NPS June 2020). Justine Russell, Chief Inspector of Probation, offered an overview of the plan to the House of Commons Justice Select Committee (20/07/2020c) thus: In the medium term, as business perhaps returns to normal, it will be a challenge to catch up with the backlog. There will be a huge backlog of unpaid work, for example, that will still need to be done, and there is a deadline for delivering that within 12 months of sentence. There will be a backlog … of accredited programmes, which won’t have been completed. (HoCJSC 20/07/2020c: Para 20)

Progress with the recovery plan was assessed by HMIPr in their report published in February 2021 (HMIPr February 2021). The report mainly covered the July to November 2020 period though also recognised that conditions changed in broader society in November 2020. The main conclusions of this report with regard to the progress made with the probation recovery plan were as follows: • Overall, although probation services were still very much in recovery and business as usual was far off, some significant changes had been made with most areas seeing an increase in service, but that change had been slow and somewhat halting, given events in broader society.

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• Delays had occurred to offices re-opening due to the need for PPE and modifications to be made to allow for staff to work together and for service users to attend, in COVID-safe conditions. • There was a continuing discrepancy in the availability of IT equipment and the skills to use such equipment between NPS and CRCs, with some CRCs still not ‘Microsoft Team’-enabled, continued problems of communication with service users and the continuing travails of home working for staff, for technical and social reasons. • Nevertheless, there had been a considerable reduction in remote working in NPS and the CRCs (from 81% of all contacts in May 2020 to 57% in November and 91% at the end of June to 74% in November 2020, respectively), consequent increases in face-to-face working (NPS from May to November 2020 from 6% to 33% and CRCs from 5% to 17% from July to November 2020) and decreased incidence of no contact with service users in the last four weeks moving from 33% to 19% from June to November 2020, with this showing in the proportions of types of contacts with service users moving from during the pandemic 19% face-to-face, 20% door-step and 71% by phone to up to November 36%, 9% and 53%, respectively. • The report found improvements in many aspects of case work (risk management, planning, implementation and review), but nevertheless some clients questioned what the purpose was of merely phone contacts: I don’t understand the concept or purpose of the phone call though, besides checking on me and booking the next appointment. It doesn’t seem [to be] about helping me (HMIPr February 2021: 18). • The delivery of accredited programmes remained limited with the change only starting in September 2020 and only about 62% programmes proceeding by November 2020. • The delivery of unpaid work rose from only 5% of unpaid work operating in June 2020 rising to 50% by November. • Little change was noted in the provision of resettlement services as this was dependent on the opening up of prisons. Some change had occurred before lockdown was re-introduced on 04/01/2021 (HMIPr February 2021: 41).

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• Ninety-seven per cent of Approved Premises had been re-opened by November, albeit still at reduced capacity in the light of COVID-­ safety restrictions (HMIPr February 2021: 43) • Many partnership services had not been restored by November 2020, thus 71% of responsible officers said they had access to a sufficient range of services pre-COVID but only 52% in November. Many were offering a phone service only (HMIPr February 2021: 45).

 e Impact of the Pandemic Management on Existing Th Probation Policies The pandemic response seriously delayed the implementation of policies begun in 2019 to reform many aspects of probation organisation and operation including dealing with the privatisation disaster, ameliorating the deficiencies of through-the-gate support and pushing ahead on more punitive community supervision. The recall disaster continued to be ignored by government. The re-nationalisation of probation services was planned to start by the end of June 2021 and to be completed during 2022 (Clinks 03/03/2020) with the transition period cutting across and complicating the recovery of community-based probation services. The Sentencing White Paper (MOJ 16/09/2020m) continued to ignore the problem associated with recall to prison and implied that the continued existence of short prison sentences was no longer a matter for debate, in effect dismissing mention of the problems of the post-sentence supervision of such prisoners. As they were part of the operation of prisons, through-the-gate services could only be provided remotely or suspended entirely. Attempts at revival were also inhibited by the need to make arrangements for the transition from the CRCs to probation. The Sentencing White Paper also continued to foreground tough and smart probation measures and background rehabilitation. In the White Paper Robert, Buckland argued that delivering the key priority of government, public protection ‘is not just about better use of custody [but also] … effective community supervision [and this depends on] … ensuring we use the best technology available to monitor offenders’ (page 10).

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This entailed support for the roll out of Abstinence and Monitoring Requirement (AAMR) enforced by sobriety tags and suggested that ‘legislating to make it possible to impose … [the AAMR) … for longer’ is under consideration. He also suggested that ‘as part of increasing the use, capability, and delivery of Electronic Monitoring … technology on community sentences, we will legislate to increase the maximum period of EM curfew from 12  months to two years to deal with more serious offenders serving community sentences, and also allow and support more flexible use of curfews’. Furthermore, he proposed giving ‘probation staff the power to vary EM requirements’. He also proposed a new ‘House Detention Order’ which would be a ‘new, robust community-based package for offenders who have not responded to existing community sentences, … based on a lengthy and restrictive curfew, which would be accompanied by other measures to address rehabilitation and prevent further offending as needed’ (MOJ 16/09/2020k: 11). The Sentencing White Paper did not entirely ignore rehabilitation and CO and SSO treatment requirements, but made it clear that this area was a junior partner of the overall effort. The White Paper indicated that the government proposed to expand ‘the availability and usage of Community Sentence Treatment Requirements (CSTRs), to deliver tailored interventions to help support rehabilitation of those with a range of treatment needs so that we are addressing the underlying causes of the offending behaviour’. This would require an ‘effective scale-up of the CSTR Programme’ which needs ‘new justice funding to the CSTR Programme this financial year, in addition to the significant funding already committed by NHS England in their 2019 Long Term Plan’. The statement then ends by indicating that ‘It is critically important that we address the fundamental drivers of crime and ensure that we work towards stopping crime in the first place’ (MOJ 16/09/2020k: 11). These were fine words but did not advance developments here much beyond the point reached in 2019. The Prison Strategy White Paper (MOJ December 2021g) contained similar emphases, of both foregrounding smart measures whilst supporting the extension of rehabilitation. But the same traps are evident whether such expressions of intent will be translated into concrete action will depend on how far punishment continues to trump rehabilitation in the

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sentiments and actions of Conservative politicians in the next few years as the reality of the apparent holiday from austerity bites.

 e Overall Success of the Probation Pandemic Response Th in the Governments’ Own Terms and How It Impacted on the Penal Crisis Overall, the recovery plan had not restored probation to its pre-pandemic operation by the summer of 2021. Furthermore, the pandemic had further stretched material resources, already rendered problematic by the bodged privatisation and the decade of austerity. However, as a result of the new probation programme, CRC work was nationalised as of 26/06/2021 and, during 2020–2021, NPS recruited 1000 new officers as part of a drive to employ 1500 more staff by March 2021 (Dunton 04/06/2021). It is not possible to indicate here what impact this will have on the material crisis in probation, nor what impact this major change, in organisation and orientation, will have on the probation crisis of legitimacy, especially with courts. Whether the new model for probation first articulated in 2019 will restore rehabilitation as an important aim to probation remains unclear and unable to be determined at this time. It seems unlikely that the legitimacy of probation with the public, staff, courts and offenders has been restored given the incomplete recovery of probation by June 2021 and the continuing issues connected to the transition to full re-nationalisation.

Bias, the Pandemic and the Penal System In this section, I want to critically consider whether government pandemic penal policy was an equal opportunity phenomenon, that is, whether their efforts are known to have had bias-diminishing or -exacerbating impacts. Astonishingly, we have to note that we do not know with any confidence and that this in itself constitutes a significant failure of the duty of care of government.

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The evidence that does exist suggests, in at least one aspect of ‘sentencing’, the imposition of fixed penalty notices (FPNs) to enforce the coronavirus regulations, bias was evident. On this matter, the House of Commons and House of Lords Joint Committee on Human Rights asked the pertinent question: ‘Is the way that fixed penalty notices are being used non-discriminatory?’ (21/04/2021: 14). The answer they provide, on the basis of data up to 14/03/2021 collected by the National Police Chiefs Counsel (who the committee regrets have a monopoly on this data source), is that FPNs ‘are disproportionately issued to certain groups in society’, in particular the young (with 75% issued to those 18–34); men (with 72% of FPNs issued to men); and ethnic minorities, with significant over-representation of black (twice the expected level) and Asian citizens (nearly twice the expected level). Furthermore in Scotland, the committee found that people living in the 10% most deprived areas were 11.2 times more likely to receive a FPN than those living in the 10% least deprived areas (House of Commons/ House of Lords Joint Committee 21/04/2021: 18–20; see also Dodd 03/06/2020; National Police Chief ’s Council 27/07/2020 and Frazer-­ Carroll 03/05/2021). A significant body of work from the various watchdogs has emerged on the impact of the pandemic on prisons and, to a lesser extent, probation including, in date order, the aggregate report of the short scrutiny visits (HMIP 19/08/2020a), the thematic report on minority prisoners’ experience of rehabilitation and release planning (HMIP 28/10/2020b), the CJJI report on the impact of the pandemic on the criminal justice system (19/01/2021), the thematic report on prisoners’ experiences in the pandemic (HMIP 11/02/2021a), the HMIP Annual Report 2020–2021 (HMIP 20/07/2021b) and the 16 reports on the 17 prisons inspected between May and September 2021 (HMIP 26/08/2021c; 27/08/2021d; 01/09/2021e; 03/09/2021f; 07/09/2021g; 09/09/2021h; 06/10/2021i; 11/10/2021j, 12/10/2021k; 27/10/2021l; 02/11/2021m; 12/11/2021n; 30/11/2021o; 07/12/2021p; 14/12/2021q and 21/12/2021r and for the previous reports on the same prisons see HMIP Website Prison and YOI inspections accessed 25/05/2022). However, the results are disappointing because they do not systematically address the issue of whether pandemic policies were biased and

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discriminatory, but rather incidentally touch on it and provide some hints. The little that they do reveal constitutes grounds for real concern. Firstly, the HMIP Annual Report noted that work to promote equality in individual prisons had ground to a virtual halt during the pandemic and was very slow to restart (HMIP 20/07/2021b: 12). Secondly, the overwhelming impression gained from the HMIP various reports is that pandemic policies clearly impacted differentially on women prisoners. Thus, HMIP noted that women prisoners were differentially and detrimentally affected by being deprived of the support they received from specialist external agencies and lack of access to their children via visits, whether banned entirely or restricted to no personal contact, with the alternative forms of communication supposed to be available to them being limited in scope, quality and quantity and as a result many women prisoners found the experience ‘profoundly damaging’ and resorted to self-harm the rates of which ‘remained consistently high’ (HMIP 19/08/2020a: 11). To be clear women needed help from specialist agencies not because they were vulnerable, but because they occupied a ‘weathered’ position of vulnerability after experiencing the worst side of a patriarchal social order. The differential burden experienced by women related to the surplus separation from children resulting from pandemic policies was not due to their personal vulnerability, but their socially prescribed and internalised role as the main child carer, creating vulnerability. In the above-mentioned reports, the issue of the possible differential impact of pandemic policies on BAME members is seldom remarked upon. One exception is the foreign national prisoner who could not read English and had limited spoken English, who became considerably more isolated and less supported than English-using prisoners, as the in-cell education packs supplied were in English only (HMIP 11/02/2021a: 21). The apparent neglect of the impact of pandemic policies on bias was complemented by the further development of what in Chap. 6 I referred to as the ‘job done’ to race. The reader will recall that in Chap. 6 I left the story in March 2020, just after the publication of the government’s report on progress on the Lammy review (MOJ February 2020a). I suggested there that the MOJ document signalled the first slide towards a ‘job done’ approach.

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Two important developments followed. The Commons debate in June 2020 on the progress of the Lammy review recommendations was triggered by David Lammy’s reaction to the PM’s remarks, in a debate about responses to the Black Lives Matter protests, during which the PM suggested that most of Lammy’s recommendations had been implemented. The Commons debate on the progress on the Lammy review recommendations revealed the widening gulf between the government and Lammy and others concerned about ‘race’ and ethnic disparity in the criminal justice system. The Commons debate revealed that the second Johnson government was engaging in what they see as a ‘culture war’ and a clear move in position from that taken by the second May government. Instead, the position of the second Johnson government was rooted in the ambiguity concerning the definition of implementation (see Alex Chalk’s contribution to the Commons debate), the transformation of the meaning of vulnerability, with it being seen as an individual characteristic rather than a social position, and a redefinition of racism, to move it away from embedded and institutionalised social sentiments to matters of individual prejudice. In this view, most of the Lammy review recommendations had been ‘implemented’, and therefore, there was very little need for further action, there was little need to explain or change. The publication of the Commission on Race and Ethnic Disparities Report (March 2021) offered a view supportive of the ‘job done’ approach and in so doing confused prejudice with racism, provided a view of the 2020s which is more optimistic aspiration than well-researched reality, and as David Lammy remarked on radio station LBC was likely to act to distract attention away from the key issues and inhibit attempts to do anything concrete about the current situation (Lammy, LBC Video 31/03/2021). It has to be noted that the publication of this report marks a new low point for commissions and inquiries, in terms of their independence from government influence. It is also ironic that this denial of institutional racism was underwritten by the institutionalisation of this denial position by making Conservative-party favoured appointments as Equalities Minister and to chair the Commission (see House of Commons debate and Alex Chalk’s contribution 30/06/2020 Parallel Parliament 30/06/2020; and for the appointment of the Equalities Minister, see Badenoch’s response to questions by David Harewood in the BBC

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documentary ‘Why is COVID killing people of colour?’ Harewood on BBCiPlayer 02/03/2021; on the appointment of the chair of the Commission on Race and Ethnic disparities, see Sewell 05/09/2008; and also Devlin 16/07/2020). It is not impossible that such a stance could be extrapolated to women offenders later, as part of the present government’s engagement in what has been deemed the ‘culture wars’ or the so-called war on woke. Thus, we do not know with any confidence whether pandemic penal policies have been discriminatory in effect. However, given the well-­ established ‘pre-existing bias of the criminal justice system’ (see Chap. 6; see also House of Commons/Lords Joint Human Rights Committee 21/04/2021: 19) and the lack of internal monitoring and external direct scrutiny during the pandemic, it seems highly likely that attempts to manage the pandemic in the penal system have produced significant and regrettable disparities. There can be little doubt that ‘steps should have been taken’ to both systematically to monitor this impact and ‘mitigate it’ (House of Commons/House of Lords Joint Human Rights Committee 21/04/2021: 19). On the balance of probabilities therefore, pandemic policies have detracted from fair treatment, the legitimacy of the system and justice. This conclusion is not altered by the yet further, limited long-­ term promises made, mainly concerning women offenders who suffer ‘trauma’ in the Prisons Strategy White Paper (MOJ December 2021g). Taken together these developments, in the context of well-established evidence of discriminatory actions within the penal system on the basis of socio-economic position, race and being female, undermine the legitimacy of not just government intervention in the penal system, but the government as a whole and the quality of justice itself.

Conclusion Government policy to deal with the pandemic in England was not austerity-­based and clocked up a bill of some £372bn by May 2021 (House of Commons Public Accounts Committee 19/07/2021c: 13) with such a debt potentially enabling a justification of austerity in the future (as I explore in Chap. 8). The policy implemented was clumsy,

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incoherent, inconstant, arbitrary and probably ineffective, placing England and the UK high in the league table for COVID-19-related death rates and prolonged depressed GDP.  Government policy on the pandemic inspired very variable public confidence, ending in June 2021 on a particular low, connected to full opening amid rising infection levels caused by the new delta variant of COVID-19. The pandemic shone a light on the penal system revealing it to be poorly equipped to face the threat posed, partly because any resilience had been eroded by years of austerity-inspired cuts in resources (in the case of probation further aggravated by a bodged privatisation and then a failure on the part of successive Conservative governments to address the problem) and partly because the system was simply not prepared for a pandemic, despite Operation Cygnus in October 2016. Any assessment of government policy on the pandemic in the penal system has to balance the delayed impact of existing harmful policies and the distraction of government from engaging in other harmful policy initiatives, against the disruption caused to normal penal operations. Delays in the implementation of existing policies occurred across the board and affected courts, prisons and probation. Major disruption to ordinary operations occurred with growing backlogs in courts, any kind of social visits, purposeful activity and release preparation in prisons suspended and probation reduced to limited remote contact and with all unpaid work suspended. Recovery has been slow, intermittent, patchy and limited. Overall, the pandemic and the way it was managed contributed to a worsening of the penal crisis—increased resources were made available, but they had to be stretched to cover three major deficits, connected to the preceding more than ten years of austerity, the often negative impact of the various transformation programmes and then the impact of the pandemic itself. Although there might have been some sense of common, mutually beneficial purpose at first, as time went on, any such effect wore thin, and the moral authority of the system was undermined by the defendants’ experience of remote courts and the prospect of lengthening lengthy periods spent on remand in custody, the prisoners’ experience of being locked in a cell for 22.5–23 hours a day over an extended period, without sufficient attention being paid to their legitimate communication, activity and resettlement needs and clients on probation finding

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that arms-length through-the-gate service was as ineffective as phone or door-step probation supervision. Furthermore, penal system pandemic policies are unlikely to have avoided discriminatory effects. Although failures of monitoring make it hard to draw firm conclusions about these effects, in the light of the existing differential treatment of the poor, women and ethnic minorities in the criminal justice system, it is highly likely that these disparities will have been exacerbated by the government’s response to the pandemic in the penal system further undermining the legitimacy of the system. The government response to the pandemic also expressed and reaffirmed the fetishisation of the prison, given the Janus-faced policy on prison releases, diminished existing accountability procedures especially in courts and prisons and further eroded any overview of policy-making. Pandemic policies thus contributed  more to a sense of injustice than justice. Chapter 8 goes on to address a clear and pressing question—why did successive Conservative governments in 2015–2021 act to exacerbate the penal crisis?

References Allegretti, A (16/04/2021) ‘Thousands could fly to England from India before it joins Covid travel “red list,” The Guardian. Allegretti, A and Elgot, J (24/02/2021) ‘Covid “greed” and capitalism behind success of the vaccine success, Johnson tells MPs’, The Guardian. Anderson, J (29/01/2021) ‘COVID vaccination gets underway in UK prisons to control spread of virus,’ iNews. Baker, C and Kirk-Wade, E (30/04/2021) Coronavirus: a history of English lockdown laws, House of Commons Library @ https://commonslibrary.parliament.uk/research-­briefings/cbp-­9068/. BBC News (26/03/2020a) ‘Coronavirus: first UK prison COVID-19 death confirmed.’ BBC News (18/04/2020b) ‘Coronavirus: Early prison release scheme suspended after errors.’

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BBC News (24/09/2020c) ‘Coronavirus: Whitty and Vallance faced ‘herd immunity’ backlash, emails show,’ video @ https://www.youtube.com/ watch?v=V6MAT-­Jcy5I. BBC News (14/06/2021a) ‘Lockdown easing to be delayed for four weeks.’ BBC News (19/07/2021b) ‘COVID vaccine: How many people in the UK have been vaccinated so far?’ BBC News (23/01/2021c) ‘Up to 500 new cells to be built in women’s prisons’. BBC News (25/10/2021d) ‘What is Plan B and what are the rules across the UK this winter?’ Bellamy, C (29/11/2021) Independent Review of Criminal Legal Aid @ https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/1041117/clar-­independent-­review-­report-­2021.pdf. Black Report (02/08/2021) Independent Inquiry into drugs part two: prevention, treatment and recovery @ https://www.gov.uk/government/publications/review-­of-­drugs-­phase-­two-­report/review-­of-­drugs-­part-­two-­prevention-­ treatment-­and-­recovery. Booth, R and Sample, I (16/03/2021) ‘Britain has suffered one of the worst deaths rates and severest economic downturns of all nations. Why?’ ‘The Guardian’. Booth, R (11/05/2021) ‘Johnson says public inquiry into Covid will begin this parliament’, The Guardian. Braithwaite, I, Edge, C, Lewer, D, and Hard, J (16/03/2021) ‘High COVID-19 death rates and the need for early vaccination’, Lancet Respiratory Medicine @ https://www.thelancet.com/journals/lanres/article/PIIS2213-­2 600(21) 00137-­5/fulltext. Boseley, S (13/03/2020) ‘Herd immunity: will the UK’s coronavirus strategy work?’ The Guardian. British Medical Journal Editorial (2020), 369 ‘Chief statistician criticises government over reporting of testing’ @ https://www.bmj.com/content/369/ bmj.m2198. Bucks Radio (13/07/2021) ‘New plans for mega prison near existing Grendon Underwood site take a step forward’ @ https://www.bucks.radio/news/local-­ news/new-­p lans-­f or-­m ega-­p rison-­n ear-­e xisting-­g rendon-­u nderwood-­ site-­take-­step-­forward/. Busby, M (20/02/2021) ‘UK government under growing pressure over COVID procurement,’ The Guardian.

376 

C. D. Skinns

Clinks (03/03/2020) The latest on the probation reform programme @ https://www.clinks.org/community/blog-­posts/latest-­probation-­reform-­ programme. Commission on Race and Ethnic Disparities Report (March 2021) @ https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/974507/20210331_-­_CRED_Report_-­_FINAL_-­_ Web_Accessible.pdf. Conner, J (30/03/2021) Eurotrack: how well have governments handled coronavirus @ https://yougov.co.uk/topics/politics/articles-­reports/2021/03/30/ eurotrack-­how-­well-­have-­governments-­handled-­corona. Council of Europe (April 2017) Space 1: Prison Populations Survey 2015 @ http://wp.unil.ch/space/files/2017/04/SPACE_I_2015_FinalReport_ 161215_REV170425.pdf. Council of Europe (2018) Prisons in Europe @ https://rm.coe.int/ prisons-­in-­europe-­2005-­2015-­volume-­1/1680990199. Criminal Justice Joint Inspectorate (19/01/2021) Impact of the pandemic on the criminal justice system @ https://www.justiceinspectorates.gov.uk/cjji/ wp-­content/uploads/sites/2/2021/01/2021-­01-­13-­State-­of-­nation.pdf. Cross, S, Rho, Y, Reddy, H, Pepperell, T, Rodgers, F, Osborne, R, Eni-Oiotu, R, Banerjee, R, Wimmer, S, and Keestra, S (April 2021) ‘Who funded the research behind the Oxford-AstraZeneca COVID-19 vaccine? Approximating the funding to the University of Oxford for the research and development of the ChAdOx vaccine technology’ European PMC @ https://www.medrxiv. org/content/medrxiv/early/2021/04/10/2021.04.08.21255103.full.pdf. Cummings, D (May 2021) Tweets on the government handling of the coronavirus pandemic @ https://mobile.twitter.com/dominic2306/status/ 1396441106649391107. Dawson, P (28/10/2021) ‘The number that wasn’t in the budget for prisons’ ‘The Justice Gap’ @ https://www.thejusticegap.com/the-­number-­that-­wasnt-­ in-­the-­budget-­for-­prisons/. Department of Health and Social Care (05/03/2020) ‘CMO announces first death of patient due to COVID-19’ @ https://www.gov.uk/government/ news/cmo-­for-­england-­announces-­first-­death-­of-­patient-­with-­covid-­19. Devlin, K (16/07/2020) ‘Johnson appoints man who described evidence of institutional racism as ‘flimsy’ as head of new race commission,’ The Independent. Dodd, V (03/06/2020) ‘Met police twice as likely to fine black people over lockdown breaches – research’ ‘The Guardian.’

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Dorrell, S (18/03/2021) ‘Westminster’s resistance to holding public inquiry is the biggest reason to hold one’, The Guardian. Dunton, J (04/06/2021) ‘HMPPS notches up recruitment record for probation officers’, Civil Service World. Elgot, J (18/02/2021a) ‘Trust in laws at risk if ministers bypass parliament, says ex-legal chief,’ The Guardian. Elgot, J (13/07/2021b) Doctors warn of ‘devastating consequences’ of lifting the COVID rules in England’, The Guardian. Equality and Human Rights Commission Report (June 2020) Inclusive Justice: A system designed for all @ https://www.equalityhumanrights.com/sites/ default/files/ehrc_inclusive_justice_a_system_designed_for_all_ june_2020.pdf. EP: IC (February 2021a) The impact on mental health of lockdown @ https:// docs.google.com/viewerng/viewer?url=http://epicconsultants.co.uk/onewebmedia/MH%2520Lockdown%2520Summary.%2520PE%2520% 2520(2).pdf. EP: IC (February 2021b) The impact on physical health of lockdown @ https:// docs.google.com/viewerng/viewer?url=http://epicconsultants.co.uk/onewebmedia/Physical%2520Health%2520Lockdown%2520Summar y. PE.%2520%2520(4).pdf. Ferguson, N M, Laydon, D, Nedjati-Gilani, G, Imai, N, Ainslie, K, Baguelin, M, Bhatia, S, Boonyasiri, A, Cucunubá, Z, Cuomo-Dannenburg, G, Dighe, A, Dorigatti, I, Fu, H, Gaythorpe, K, Green, W, Hamlet, A, Hinsley, W, Okell, L C, van Elsland S, Thompson, H, Verity, R, Volz, E, Wang, H, Wang, Y, Walker, P G T, Walters, C, Winskill, P, Whittaker, C, Donnelly, C A, Riley, S, Ghani, A C (16/03/2020) Impact of non-pharmaceutical interventions to reduce COVID-19 mortality and health care demand @ https://www.imperial.ac.uk/media/imperial-­c ollege/medicine/sph/ide/gida-­f ellowships/ Imperial-­College-­COVID19-­NPI-­modelling-­16-­03-­2020.pdf. Francis-Devine, B and Ferguson, D (March 2021) The furlough Scheme one year on, House of Commons Library @ https://commonslibrary.parliament. uk/the-­furlough-­scheme-­one-­year-­on/. Frazer-Carroll, M (03/05/2021) ‘COVID fines paint a bleak picture of pandemic policing that is going to get worse’ The Guardian. Green, D A (10/08/2020) The government is looking at judicial review’, Law and Policy Blog @ https://davidallengreen.com/2020/08/the-­government-­is-­ looking-­at-­judicial-­review/.

378 

C. D. Skinns

Greenhalgh, T, McKee, M, and Kelly-Irving, M (18/10/2020) ‘The pursuit of herd immunity is a folly – so who’s funding this bad science?’ The Guardian. Godfrey, B, Richardson, J C, and Walklate, D (2021) The crisis in courts: before and beyond COVID @ https://academic.oup.com/bjc/advance-­article/ doi/10.1093/bjc/azab110/6430029. Gov.UK (02/02/2022) Coronavirus in the UK  – Vaccinations in the UK Number of vaccinations given in the UK – first dose @ https://coronavirus. data.gov.uk/details/vaccinations. Grierson, J (16/03/2021) ‘COVID death rate in prison three times higher than outside,’ The Guardian. Hardwick, N (18/11/2020) Prisons and COVID-19: what went right? @ https://www.crestadvisory.com/post/prisons-­and-­covid-­19-­what-­went-­right. Harewood, D (broadcast 02/03/2021) BBC documentary ‘Why is COVID killing people of colour?’, BBC iPlayer @ https://www.bbc.co.uk/iplayer/episode/m000sv1d/why-­is-­covid-­killing-­people-­of-­colour. HM Courts and Tribunals Service (May 2020) Cloud Video Platform @ http://. gov.uk/guidance/hmcts-rollout-plans-plans-for-cloud-video-platform-forenabled-criminal-­­hearings HM Courts and Tribunals Service (July 2020) COVID-19: Our response @ https://assets.publishing.service.gov.uk/government/uploads/system/ uploads/attachment_data/file/896779/HMCTS368_recovery_-­_ COVID-­19-­_Overview_of_HMCTS_response_A4L_v3.pdf. HM Courts and Tribunals Service (15/02/2021a) Notes on listing for magistrates’ courts  – COVID-19 @ https://www.judiciary.uk/wp-­content/ uploads/2020/07/07072020_-­Amended-­Note-­on-­Listing-­Magistrates-­re-­ breaches_APPROVED-­3.pdf. HM Courts and Tribunals Service (15/07/2021b) Annual Report and Accounts 2020–21 @ https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/1002585/HMCTS_Annual_Report_ and_Accounts_2020-­21.pdf. HM Courts and Tribunals Service (21/09/2021c) Trust Statement 2020–21 @ https://assets.publishing.service.gov.uk/government/uploads/system/ uploads/attachment_data/file/1019456/HMCTS_Trust_Statement_ 2020-­21.pdf. HM Prisons and Probation Service/National Probation Service (June 2020) Probation Roadmap to Recovery @ https://assets.publishing.service.gov.uk/ government/uploads/system/uploads/attachment_data/file/892498/ probation-­roadmap-­to-­recovery.pdf.

7  The Pandemic and the Penal System 

379

HM Inspectorate of Prisons (19/08/2020a) Short Scrutiny Aggregate Report @ https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/ short-­scrutiny-­visit-­aggregate-­report/. HM Inspectorate of Prisons (28/10/2020b) Thematic report: Minority ethnic prisoners’ experiences of rehabilitation and release planning @ https://www. justiceinspectorates.gov.uk/hmiprisons/wp-­c ontent/uploads/sites/4/ 2020/10/Minority-­ethnic-­prisoners-­and-­rehabilitation-­2020-­web-­1.pdf. HM Inspectorate of Prisons (11/02/2021a) Thematic Report: What happens to prisoners in a pandemic @ https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/what-­happens-­to-­prisoners-­in-­a-­pandemic/. HM Inspectorate of Prisons (20/07/2021b) Annual Report 2020–21 @ https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/1003082/hmip-­annual-­report-­accounts-­2020-­21.pdf. HM Inspectorate of Prisons (26/08/2021c) Inspection report: HMP Send @ https://www.justiceinspectorates.gov.uk/hmiprisons/wp-­content/uploads/ sites/4/2018/11/Send-­Web-­2018.pdf. HM Inspectorate of Prisons (27/08/2021d) Urgent Notification Letter HMP Chelmsford @ https://www.justiceinspectorates.gov.uk/hmiprisons/ wp-­c ontent/uploads/sites/4/2021/08/26aug-­s ofs-­c helmsford-­U N-­ letter-­FINAL.pdf. HM Inspectorate of Prisons (01/09/2021e) Inspection report: HMP Haverigg @ https://www.justiceinspectorates.gov.uk/hmiprisons/wp-­content/uploads/ sites/4/2021/08/Haverigg-­web-­2021.pdf. HM Inspectorate of Prisons (03/09/2021f ) Inspection report: HMP Oakwood @ https://www.justiceinspectorates.gov.uk/hmiprisons/wp-­content/uploads/ sites/4/2021/09/Oakwood-­web-­2021.pdf. HM Inspectorate of Prisons (07/09/2021g) Inspection report: HMP and YOI Low Newton @ https://www.justiceinspectorates.gov.uk/hmiprisons/wp-­ content/uploads/sites/4/2021/09/Low-­Newton-­web-­2021.pdf. HM Inspectorate of Prisons (09/09/2021h) Inspection report: HMP Wormwood Scrubs @ https://www.justiceinspectorates.gov.uk/hmiprisons/wp-­content/ uploads/sites/4/2021/09/Wormwood-­scrubs-­web-­2021.pdf. HM Inspectorate of Prisons (06/10/2021i) Inspection report: HMP Swinfen Hall @ https://www.justiceinspectorates.gov.uk/hmiprisons/wp-­content/ uploads/sites/4/2021/10/Swinfen-­Hall-­web-­2021-­1.pdf. HM Inspectorate of Prisons (11/10/2021j) Inspection report: HMPs Usk and Prescoed @ https://www.justiceinspectorates.gov.uk/hmiprisons/wp-­content/ uploads/sites/4/2021/09/Prescoed-­and-­Usk-­web-­2021.pdf.

380 

C. D. Skinns

HM Inspectorate of Prisons (12/10/2021k) Inspection report: HMP and YOI Deerbolt @ https://www.justiceinspectorates.gov.uk/hmiprisons/wp-­content/ uploads/sites/4/2021/10/Deerbolt-­web-­2021.pdf. HM Inspectorate of Prisons (27/10/2021l) Inspection report: HMP and YOI Downview @ https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/hmp-­yoi-­downview-­2/. HM Inspectorate of Prisons (02/11/2021m) Inspection report: HMP Hull @ https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/ hmp-­hull-­2/. HM Inspectorate of Prisons (12/11/2021n) Inspection report: HMP Belmarsh @ https://www.justiceinspectorates.gov.uk/hmiprisons/wp-­content/uploads/ sites/4/2021/11/Belmarsh-­web-­2021-­1.pdf. HM Inspectorate of Prisons (30/11/2021o) Inspection report: HMYOI Brinsford @ https://www.justiceinspectorates.gov.uk/hmiprisons/wp-­content/ uploads/sites/4/2021/11/Brinsford-­web-­2021.pdf. HM Inspectorate of Prisons (07/12/2021p) Inspection report: HMP Erlestoke @ https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/hmp-­erlestoke-­4/. HM Inspectorate of Prisons (14/12/2021q) Inspection report: HMP Woodhill @ https://www.justiceinspectorates.gov.uk/hmiprisons/wp-­content/uploads/ sites/4/2021/12/Woodhill-­web-­2021.pdf. HM Inspectorate of Prisons (21/12/2021r) Inspection Report: HMP Manchester @ https://www.justiceinspectorates.gov.uk/hmiprisons/wp-­content/uploads/ sites/4/2018/11/Manchester-­Web-­2018.pdf. HM Inspectorate of Probation (November 2020) Thematic review of the exceptional delivery model in the probation service in response to COVID-19 pandemic @ https://www.justiceinspectorates.gov.uk/hmiprobation/wp-­ content/uploads/sites/5/2020/11/A-­t hematic-­r eview-­o f-­t he-­E DM-­ arrangements-­i n-­p robation-­s ervices-­i n-­r esponse-­t o-­t he-­C OVID-­1 9-­ pandemic.pdf. HM Inspectorate of Probation (February 2021) COVID-19: A Thematic review of the quality and effectiveness of probation services recovering from the impact of exceptional delivery models introduced owing to the Covid-19 pandemic @ https://www.justiceinspectorates.gov.uk/hmiprobation/wp-­ content/uploads/sites/5/2021/02/Recovery-­thematic.pdf. HM Prisons and Probation Service (16/12/2021) Annual Report 2020–21 @ https://assets.publishing.service.gov.uk/government/uploads/system/ uploads/attachment_data/file/1041628/HMPPS_Annual_Report_and_ Accounts_2020-­21.pdf.

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381

HM Treasury (27/10/2021a) Spending review and autumn statement @ https:// www.gov.uk/government/publications/autumn-budget-and-spendingreview-2021-documents HM Treasury (03/03/2021b) Budget 2021:documents @ https://www.gov.uk/ government/publications/budget-2021-documents Home Office (09/03/2021a) Police, Crime, Courts and Sentencing Bill: Explanatory Notes @ https://publications.parliament.uk/pa/bills/cbill/5801/0268/en/200268en.pdf. Home Office (13/05/2021b) PCS&C Bill Factsheet: Overarching @ https:// www.gov.uk/government/publications/police-­crime-­sentencing-­and-­courts-­ bill-­2 021-­f actsheets/police-­c rime-­s entencing-­a nd-­c ourts-­b ill-­2 021-­ overarching-­factsheet. Home Office (13/05/2021c) PCS&C Bill Audio and Video Factsheet @ https:// www.gov.uk/government/publications/police-­crime-­sentencing-­and-­courts-­ bill-­2 021-­f actsheets/police-­c rime-­s entencing-­a nd-­c ourts-­b ill-­2 021-­ audio-­and-­video-­live-­links-­factsheet. Home Office (13/05/2021d) PCS&C Bill 2021 Community sentences Factsheet at https://www.gov.uk/government/publications/police-­crime-­sentencing-­ and-­courts-­bill-­2021-­factsheets/police-­crime-­sentencing-­and-­courts-­bill-­ 2021-­community-­sentences-­factsheet. Home Office (13/05/2021e) PCS&C Bill 2021 Parole and License Conditions Factsheet @ https://www.gov.uk/government/publications/police-­crime-­ sentencing-­a nd-­c ourts-­b ill-­2 021-­f actsheets/police-­c rime-­s entencing-­ and-­courts-­bill-­2021-­parole-­and-­licence-­conditions-­factsheet. Home Office (13/05/2021f ) PCS&C Bill 2021 Sentence lengths for serious offenders factsheet @ https://www.gov.uk/government/publications/police-­ crime-­sentencing-­and-­courts-­bill-­2021-­factsheets/police-­crime-­sentencing-­ and-­courts-­bill-­2021-­sentence-­lengths-­for-­serious-­offenders-­factsheet. House of Commons (04/06/2020) Answer by Lucy Frazer to Parliamentary Question by Lyn Brown @ https://www.theyworkforyou.com/wrans/?id=2020-­ 06-­01.51783.h&s=probation+section%3Awrans#g51783.r0. House of Commons, House of Lords Joint Committee on Human Rights (21/04/2021) The government response to COVID-19: fixed penalty notices @ https://committees.parliament.uk/publications/5621/documents/ 55581/default/. House of Commons Justice Select Committee (07/04/2020a) Notes of meeting @ https://publications.parliament.uk/pa/cm5801/cmselect/cmjust/

382 

C. D. Skinns

c o r re s p o n d e n c e / 2 0 0 4 0 7 -­Ju s t i c e -­C o m m i t t e e -­m e e t i n g -­Ro b e r t -­ Buckland-­note1.pdf. House of Commons Justice Select Committee (15/07/2020b) Coronavirus (COVID-19): the impact on prisons @ https://publications.parliament.uk/ pa/cm5801/cmselect/cmjust/299/299.pdf. House of Commons Justice Select Committee (20/07/2020c) Coronavirus (COVID-19): the impact on probation services (including the testimony of the Chief Inspector of Probation) @ https://publications.parliament.uk/pa/ cm5801/cmselect/cmjust/461/46102.htm. House of Commons Justice Select Committee (13/10/2020d) Coronavirus (COVID-19): impact on the legal professions in England and Wales; government response @ https://committees.parliament.uk/publications/3068/documents/28788/default/. House of Commons Justice Select Committee (24/03/2020e) The work of the Lord Chancellor-Oral Evidence: Q58 at http://www.committees.parliament. uk/oralevidence/248/pdf/. House of Commons Justice Select Committee (23/06/2020f ) Video Robert Buckland evidence @ https://video.search.yahoo.com/search/video?fr=mcafe e&p=Robert+Buckland+evidence+to+Justice+Select+committee+video#id=1 &vid=d60987a996ca1424c7b784b91a8aa581&action=click’. House of Commons Justice Select Committee (22/07/2020g) Coronavirus: impact on courts @ https://publications.parliament.uk/pa/cm5801/cmselect/cmjust/519/51904.htm#_idTextAnchor001. House of Commons Justice Select Committee (24/03/2020h) Video of evidence given by Minister of Justice, Robert Buckland, @ https://parliamentlive.tv/ event/index/05ee6d57-­2951-­4aa6-­853c-­fa4ab9b4142b. House of Commons Justice Select Committee (23/06/2020i) Coronavirus (Covid-19) Oral Evidence: The impact on prisons, probation and the courts @ https://committees.parliament.uk/oralevidence/565/pdf/. House of Commons Justice Select Committee (22/07/2020j) Coronavirus (COVID-19): impact on the legal professions in England and Wales @ https://committees.parliament.uk/publications/2227/documents/ 26119/default/. House of Commons Justice Select Committee (27/07/2021a) The Future of Legal Aid @ https://committees.parliament.uk/publications/6979/documents/72829/default/.

7  The Pandemic and the Penal System 

383

House of Commons Justice Select Committee (16/11/2021b) Fourth Special Report – Government Response to The Future of Legal Aid @ https://publications.parliament.uk/pa/cm5802/cmselect/cmjust/843/84302.htm. House of Commons Public Accounts Committee (February 2021a) COVID-19: Government procurement and supply of personal protective equipment @ https://committees.parliament.uk/publications/4607/documents/46709/ default/. House of Commons Public Accounts Committee (March 2021b) COVID-19: Test, track and Trace (Part 1) @ https://publications.parliament.uk/pa/ cm5801/cmselect/cmpubacc/932/93202.htm. House of Commons Public Accounts Committee (19/07/2021c) COVID 19: Cost Tracker updated @ https://committees.parliament.uk/publications/ 6953/documents/72750/default/. House of Commons Health and Social Care and Science and Technology Committees (12/10/2021) Coronavirus: lessons learned @ https://committees.parliament.uk/committee/81/health-­a nd-­s ocial-­c are-­c ommittee/ news/157991/coronavirus-­lessons-­learned-­to-­date-­report-­published/. House of Lords Constitution Committee (30/03/2021) Report: COVID-19 and the courts @ https://publications.parliament.uk/pa/ld5801/ldselect/ ldconst/257/257.pdf. House of Lord’s Library Brader, C (21/07/2020) The jury’s out: COVID-19 impact on jury trials @ https://lordslibrary.parliament.uk/the-­jurys-­out-­ covid-­19-­impact-­on-­jury-­trials/#:~:text=All%20jury%20trials%20in%20 England%20and%20Wales%20were,expected%20to%20last%20for%20 more%20than%20three%20days. Huffington Post (17/06/2020) ‘Government abandons prisoner release scheme after spending £4m on tags’ @ https://www.huffingtonpost.co.uk/entry/ prisons-­electronic-­tags-­coronavirus_uk_5ee7a7eac5b6f72ee5efd861. Hunt, J (13/07/2020) ‘We Tories must keep our word – and fix the social care crisis now,’ The Guardian. Ibbetson, C (21/01/2021) How is the government handling the COVID-19 pandemic? @ https://yougov.co.uk/topics/politics/articles-­reports/2021/01/ 21/what-­do-­britons-­think-­governments-­handling-­covid-­1. Independent Advisory Panel (IAP) (May 2020a) ‘Keep talking, stay safe’: a rapid review of prisoners’ experience under COVID’ @ https://static1.squarespace. com/static/5c5ae65ed86cc93b6c1e19a3/t/5ed117bbbad4847443d43567/ 1 5 9 0 7 6 1 4 0 8 1 2 2 / 2 0 2 0 0 5 2 9 + I A P -­N P R + -­+ a + r a p i d + re v i e w + o f + prisoner+experiences+under+Covid-­19+-­+FINAL+CLEAN.pdf.

384 

C. D. Skinns

Independent Advisory Panel (IAP) (September 2020b) Just one thing: prison safety and COVID-19 @ https://static1.squarespace.com/static/5c5ae65ed 86cc93b6c1e19a3/t/5f6e11e141066201bdadec6b/1601049059093/200 925+IAP+COVID-­19+safety+briefing+-­+final.pdf. Inside Time (18/05/2020a) Unlikely release of 4,000 @ https://insidetime.org/ unlikely-­release-­o f-­4 000-­2 /#:~:text=The%20Government%20has%20 given%20its%20clearest%20signal%20yet,that%20followed%2C%20 fewer%20than%20100%20prisoners%20were%20freed. Inside Time (06/07/2020b) ‘Prisons can ease lockdown from today’ @ https:// insidetime.org/prisons-­can-­ease-­lockdown-­from-­today/. Inside Time (01/09/2021) ‘Prison jabs lag’ @ https://insidetime.org/ prison-­jabs-­lag/. Institute of Government (March 2021) Responding to Shocks @ https://www. instituteforgovernment.org.uk/sites/default/files/publications/responding_ shocks_lessons_covid_brexit.pdf. John Hopkins University School of Medicine (2020) New Variants of COVID-19: What You Should Know @ https://www.hopkinsmedicine.org/ health/conditions-­and-­diseases/coronavirus/a-­new-­strain-­of-­coronavirus-­ what-­you-­should-­know. Jones, H (12/05/2020) ‘Government “shamelessly abandons” global comparisons of COVID-19 death rates,’ Metro. Kings Fund (05/11/2020) Public Health @ https://www.kingsfund.org.uk/projects/positions/public-­health. Kings Fund (24/03/2021) The NHS Budget and how it has changed @ https:// www.kingsfund.org.uk/projects/nhs-­in-­a-­nutshell/nhs-­budget. Lammy, D (31/03/2021) Video @ https://www.lbc.co.uk/news/commission-­on-­ race-­and-­ethnic-­disparities-­report-­the-­key-­points/. Lydall, R (15/09/2020) ‘First coronavirus death may have occurred in January, new ONS data reveals, Evening Standard @ https://www.standard.co.uk/ news/health/first-­uk-­coronavirus-­death-­end-­january-­a4547606.html. McKie, R (12/04/2020) ‘Five months on, what scientists now know about the coronavirus,’ The Guardian. MOJ (11/08/2019) 10,000 extra prison places to keep the public safe @ https:// www.gov/uk/government/ne ws/10,000-extra-prison-places-tokeep-the-public-safe MOJ (30/04/2019a) Offender Management Statistics Quarterly  – Prison Population @ https://www.gov.uk/government/statistics/offender-­management-­ statistics-­quarterly-­october-­to-­december-­2019.

7  The Pandemic and the Penal System 

385

MOJ (25/07/2019b) Offender Management Statistics – Prison Population @ https://www.gov.uk/government/statistics/offender-­management-­statistics-­ quarterly-­january-­to-­march-­2019. MOJ (February 2020a) Tackling racial disparity in the Criminal Justice System: 2020 update @ https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/881317/tackling-­r acial-­d isparity-­ cjs-­2020.pdf. MOJ (24/03/2020b) Press Release: Prison visits cancelled @ https://www.gov. uk/government/news/prison-­visits-­cancelled. MOJ (04/04/2020c) Press Release Measures to protect the NHS from coronavirus risk @ https://www.gov.uk/government/news/measures-­announced-­to-­ protect-­nhs-­from-­coronavirus-­risk-­in-­prisons. MOJ (09/04/2020d) Press Release: Prison estate expanded to protect NHS from coronavirus risk @ https://www.gov.uk/government/news/prison-­estate-­ expanded-­to-­protect-­nhs-­from-­coronavirus-­risk. MOJ (20/04/2020e) Press Release: Further expansion of prison estate to protect the NHS at https://www.gov.uk/government/news/further-­expansion-­ of-­prison-­estate-­to-­protect-­nhs. MOJ (24/04/2020f ) Press Release: Covid-19 @ https://www.gov.uk/government/publications/covid-­19-­prison-­releases. MOJ (26/06/2020g) Covid-19: Official Statistics to 19/06/2020 @ https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/ a t t a c h m e n t _ d a t a / f i l e / 8 9 5 6 9 9 / H M P P S _ C OV I D 1 9 _ St a t i s t i c s _ Publication_19_June.pdf. MOJ (28/06/2020h) Press release: ‘Four new prisons boost rehabilitation and support the economy’ @ https://www.gov.uk/government/news/four-­new-­ prisons-­boost-­rehabilitation-­and-­support-­economy. MOJ (30/07/2020i) Offender Management Statistics Quarterly  – Prison Population @ https://www.gov.uk/government/statistics/offender-­management-­ statistics-­quarterly-­january-­to-­march-­2020%2D%2D2. MOJ (August 2020j) Strengthening Independent Scrutiny Bodies Through Legislation @ https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/910010/strengthening-­s crutiny-­ bodies-­through-­legislation-­consultation-­document.pdf. MOJ (16/09/2020k) Press Release: Lord Chancellor’s Speech White Paper Launch – A Smarter Approach to Sentencing @ https://www.gov.uk/government/speeches/lord-­c hancellors-­s peech-­w hite-­p aper-­l aunch-­a -­s marter-­ approach-­to-­sentencing.

386 

C. D. Skinns

MOJ (12/10/2020l) Press release: ‘Expansion of four jails announced’ @ https:// www.gov.uk/government/news/expansion-­at-­4-­jails-­announced. MOJ (16/09/2020m) White Paper: A Smarter Approach to Sentencing @ https://www.gov.uk/government/publications/a-­s marter-­a pproach-­ to-­sentencing. MOJ (29/10/2020n) Offender Management Statistics @ https://www.gov.uk/ government/statistics/offender-­m anagement-­s tatistics-­q uarterly-­a pril-­ to-­june-­2020. MOJ/HMPPS (02/06/2020) ‘COVID-19: National Framework for Prison regimes and Services’ @ https://www.gov.uk/government/publications/ covid-­19-­national-­framework-­for-­prison-­regimes-­and-­services. MOJ (20/01/2021a) Press Release: Managing the pandemic in prisons @ https://www.gov.uk/government/news/managing-­the-­pandemic-­in-­prisons. MOJ (19/03/2021b) Prison officer work force @ https://www.ethnicity-­facts-­ figures.service.gov.uk/workforce-­and-­business/workforce-­diversity/prison-­ officer-­workforce/latest#title. MOJ (25/03/2021c) Criminal Court Statistics: October-December 2020 @ https://www.gov.uk/government/statistics/criminal-­c ourt-­s tatistics-­ quarterly-­october-­to-­december-­2020. MOJ (21/07/2021d) Judicial Review and Courts Bill @ https://www.gov.uk/ government/publications/judicial-­review-­and-­courts-­bill. MOJ (29/07/2021e) Offender Management Statistics  – Prison Population @ https://www.gov.uk/government/statistics/offender-­management-­statistics-­ quarterly-­january-­to-­march-­2021#history. MOJ (28/10/2021f ) Offender Management Statistics Quarterly  – Prison Population @ https://www.gov.uk/government/statistics/offender-­management-­ statistics-­quarterly-­april-­to-­june-­2021. MOJ (December 2021g) Prisons Strategy White Paper @ https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/ file/1038765/prisons-­strategy-­white-­paper.pdf. MOJ/HMPPS (13/08/2021) Covid-19 Statistics July 2021 COVID-19 Summary Tables @ https://www.gov.uk/government/statistics/hmpps-­covid-­ 19-­statistics-­july-­2021. National Audit Office (12/06/2020a) Readying the NHS and adult social care for COVID-19 @ https://www.nao.org.uk/wp-­content/uploads/2020/06/ Readying-­the-­NHS-­and-­adult-­social-­care-­in-­England-­for-­COVID-­19.pdf.

7  The Pandemic and the Penal System 

387

National Audit Office (25/11/2020b) The supply of PPE during the COVID-19 pandemic @ https://www.nao.org.uk/wp-­content/uploads/2020/11/The-­ supply-­o f-­personal-­protective-­e quipment-­PPE-­during-­the-­COVID-­19-­ pandemic.pdf. National Health Service England (07/01/2019) Long Term Plan @ https:// www.lo ngterm p la n . n h s. uk/wp -­c on t e n t / u pl o ad s / 2 0 1 9 / 0 8 / n hs -­ long-­term-­plan-­version-­1.2.pdf. National Police Chief ’s Council (27/07/2020) ‘Analysis of coronavirus fines published’ @ https://news.npcc.police.uk/releases/independent-­analysis-­of-­ coronavirus-­fines-­published. Nuffield Trust (20/10/2021) Injustice? Towards a better understanding of health care access challenges for prisoners @ https://www.nuffieldtrust.org.uk/ files/2021-­10/1634637809_nuffield-­trust-­prisoner-­health-­2021-­final.pdf. Office for National Statistics (01/02/2021a) International comparison of GDP during the coronavirus pandemic @ https://www.ons.gov.uk/economy/grossdomesticproductgdp/articles/internationalcomparisonsofgdpduring thecoronaviruscovid19pandemic/2021-­02-­01#coronavirus-­and-­uk-­gdp. Office of National Statistics (16/06/2021b) Freedom of Information Request -s Excess deaths for the UK for the year 2020 @ https://www.ons.gov.uk/aboutus/transparencyandgovernance/freedomofinformationfoi/excessdeathsforuk fortheyear2020. Office for National Statistics (24/06/2021c) Population estimates for the UK, England, Wales, Scotland and Northern Ireland @ https://www.ons.gov.uk/ peoplepopulationandcommunity/populationandmigration/populationestimates/bulletins/annualmidyearpopulationestimates/latest#the-­u k-­ population-­at-­mid-­2020. Office for National Statistics (10/09/2021d) GDP: monthly estimate UK: July 2021 @ https://www.ons.gov.uk/economy/grossdomesticproductgdp/bulletins/gdpmonthlyestimateuk/july2021#main-­points. Office for National Statistics (12/12/2021e) Deaths registered weekly in England and Wales provisional: 1st October, 2021 @ http://www.ons.gov.uk/peoplepopulationand community/birthsdeathsmarraiges/bulletins/deathregisteredweeklyenglandand walesprovisional/1October2021. Office for National Statistics (13/10/2021f ) Coronavirus and the impact on output in the UK economy @ https://www.ons.gov.uk/economy/grossdomesticproductgdp/articles/coronavirusandtheimpactonoutputintheukeconomy/august2021.

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Office of National Statistics (31/03/2020) Deaths registered weekly in England and Wales, provisional: week ending 20 March 2020 @ https://www.ons.gov. uk/peoplepopulationandcommunity/birthsdeathsandmarriages/deaths/bulletins/deathsregisteredweeklyinenglandandwalesprovisional/weekending20m arch2020#glossary Parallel Parliament (30/06/2020) Lammy Review Debate: Excerpts Alex Chalk @ https://www.parallelparliament.co.uk/mp/alex-chalk/debate/2020-06-30/ commons/commons-chamber/lammy-review Prison Policy Initiative (18/05/2021) ‘Just over half of incarcerated people are vaccinated…’ @ https://www.prisonpolicy.org/blog/2021/05/18/ vaccinationrates/. Prison Reform Trust (2020) CAPPTIVE Report 2 Regimes: reactions to the pandemic and progression @ http://www.prisonreformtrust.org.uk/Portals/0/ Documents/CAPPTIVE2_regimes_and_progression_web_final.pdf. Public Health England PHE (24/04/2020a) Briefing paper – interim assessment of the impact of various population management strategies in prisons in response to the COVID -19 pandemic in England https://assets.publishing. service.gov.uk/government/uploads/system/uploads/attachment_data/ file/882622/covid-­19-­population-­management-­strategy-­prisons.pdf. Public Health England (June 2020b) Beyond the data: Understanding the impact of COVID-19 on BAME groups @ https://assets.publishing.service. gov.uk/government/uploads/system/uploads/attachment_data/file/892376/ COVID_stakeholder_engagement_synthesis_beyond_the_data.pdf. Reform UK Website (accessed 15/06/2021) Its time for reform @ https://www. thebrexitparty.org/reformuk/. Robins, J (24/05/2020) ‘We need to protect open justice during the COVID-19 emergency,’ The Guardian. Sabbagh, D and Parveen, N (08/11/2020) ‘Farage party’s relaunch marked with low-key anti-lockdown protest’, The Guardian. Sample, I (26/07/2021) ‘What is behind the latest fall in cases of COVID across the UK’, The Guardian. Sentencing Project (2017) Annual Report 2016 @ https://www.sentencingproject.org/wp-­content/uploads/2015/10/Annual-­Report-­2016.pdf. Sewell, T (05/09/2008) ‘Racism is not the problem’, The Guardian. Siva, N (12/12/2020) Experts call to include prisons in COVID-19 vaccine plans’, The Lancet @ https://www.thelancet.com/action/showPdf?pii=S0140-­ 6736%2820%2932663-­5. Sridhar, D (28/11/2021) ‘How bad will the Omicron Covid variant be in Britain/ Three things will tell us,’ The Guardian.

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Skinns, D (2016) Coalition Government Penal Policy 2010–15: Austerity, Outsourcing and Punishment, London: Palgrave/Macmillan. Slingo, J (04/05/2021) “Markedly inferior”, Bar Council warns against virtual justice’, The Law Society Gazette. Slingo, J and Fouzder, M (08/02/2021) ‘Scrapped? HMCTS says COVID-19 operating hours “under review”, Law Society Gazette. Spiegelhalter, D and Masters, A (14/02/2021a) ‘Is COVID more deadly than seasonal flu?’ The Guardian. Spiegelhalter, D and Masters, A (2021b) Covid by Numbers: Making Sense of the Pandemic with Data, Pelican: London. Stewart, H and Busby, M (13/03/2020) ‘Coronavirus: science chief defends UK plan from criticism,’ The Guardian. Taylor, D and Grierson, J (04/04/2020) ‘Up to 4,000 prisoners are to be temporarily released in England and Wales’, The Guardian. The Guardian Editorial (24/05/2020) ‘The Guardian view on prisoners in lockdown: too much solitude.’ The Guardian (27/07/2021) Death and Death rates by country @ https://www. theguardian.com/world/2021/jun/11/covid-­world-­map-­which-­countries-­ have-­the-­most-­coronavirus-­vaccinations-­cases-­and-­deaths. The Justice Gap (29/05/2020) ‘We need to protect open justice during the COVID-19 emergency’ @ https://www.thejusticegap.com/we-­need-­to-­ protect-­open-­justice-­during-­the-­covid-­19-­emergency/. Transform Justice (May 2020) The wheels of justice are turning, but at what cost? @ http://www.transformjustice.org.uk/the-­wheels-­of-­justice-­are-­ turning-­but-­at-­what-­cost/. Trevett, E and J Whitfield (eds) (May 2020) Lockdown Lawyers Limerick No 5 @ https://www.lag.org.uk/shop/book-­title/208154/lockdown-­lawyers. User Voice (May 2021) COVID Lockdown @ https://www.uservoice.org/wp-­ content/uploads/2020/07/The-­user-­voice-­of-­lockdown.pdf. UK Government (27/07/2021) Coronavirus in the UK: People Testing Positive @ https://coronavirus.data.gov.uk/details/cases. de Vogue, A (20/04/2020) ‘Supreme court says unanimous verdicts required in jury trials for serious offences’, CNN. Weaver, M (21/03/2021) ’Daughter calls for Kent man to be recognised as the UKs first COVID victim,’ The Guardian. Webster Website (19/01/2021) The state of the (criminal justice) nation, Russell Webster @ https://www.russellwebster.com/the-­state-­of-­the-­criminal-­justice-­ nation/.

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World Health Organisation (12/01/2020) Novel Coronavirus  – China @ https://www.who.int/csr/don/12-­j anuary-­2 020-­n ovel-­c oronavirus-­ china/en/. WHO (20/10/2020) Coronavirus (COVID-19): How is it spread? @ (https:// www.who.int/news-­room/q-­a-­detail/coronavirus-­disease-­covid-­19-­how­is-­it-­transmitted. Xie, Y, Bowe, B, Maddukuri, G, and Al-Aly, Z (15/12/2020) Comparative evaluation of clinical manifestation of risk of death in patients admitted to hospital with COVID-19 and seasonal influenza: a cohort study, British Medical Journal, 371:m4677 @ https://www.bmj.com/content/371/bmj.m4677. YouGov (accessed 28/07/2021) COVID-19: government handling and confidence in the health authorities @ https://yougov.co.uk/topics/international/ articles-­reports/2020/03/17/perception-­government-­handling-­covid-­19.

8 Why Has the Penal Crisis Been Exacerbated by Recent Government Policy?

Introduction The account so far has revealed that the penal policy package, relying on austerity, outsourcing and punishment (A-O-P), introduced by the Coalition government in the 2010–2015 period (Skinns 2016), has also been revived, with some modifications, by successive Conservative governments in the 2015–2021 period and has, entirely predictably, further exacerbated the penal crisis. Such a situation begs to be explained. Political economic analysis offers us the possibility of understanding what has happened. In what follows I attempt to follow Weber’s advice, that accounts should be adequate at the level of cause and meaning (Weber 1964: 99–100), and also allow for the influence of cultural, economic, political and social forces, without any one of them being treated as dominant. The account provided falls into three parts. Firstly, the 2015–2021 period is located in the broader trajectory of the development of inequality regimes, their justificatory logics and the penal policy packages mandated by them. This will include an analysis of the earlier

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frugality/outsourcing/punishment penal policy package (F-O-P) and ‘contested’ or first-wave (1979–1992) and ‘hegemonic’ or ‘second-wave’ (1992–2008) neo-proprietarian inequality regime based on neo-liberal ideology (Reiner 2021: 87, Steger and Roy 2021: Chap. 2; Piketty 2020: Chap. 13), all of which provided the basis for the first emergence of the penal crisis. Secondly, more specifically, an account of ‘zombie’ or ‘third-wave’ neo-­ proprietarianism (Reiner 2021: 88; Steger and Roy 2021: Chap. 2) that emerged post-2008 is provided, together with the distinctive penal policy package, based on the A-O-P formula that it mandated together with some assessment of how this contributed to the worsening penal crisis of the present. Finally, attention will focus on whether the financial crash of 2008 together with the exceptional moment of the pandemic are likely to lead to ‘the death…, re-birth’ (Steger and Roy 2021: 125) or hybridisation of neo-proprietarianism and its attendant ideology, together with an examination of the implications of this for future of penal policy and the penal crisis.

‘Contested’ and ‘Hegemonic’ Neo-liberalism 1979–2008 In this section, the antecedents of the inequality regime of the 2008–2021 period are set out, placing an emphasis on their human-made, often hard-fought, socially constructed and therefore necessarily fragile character. Piketty (2020) provides us with a wider historical context in which to situate the more recent changes. I will discuss the inequality regimes he identifies using a modified version of Steger and Roy’s (2021: 12–15) analysis based on four categories, including type of inequality regime, ‘… ideology,… mode of governance, [and] …policy package’, supplemented specifically by reference to the penal policy package, concerned to exercise one aspect of the regalian role specifically ‘the power to punish’ (Garland and Young 1983).

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 roader Context: Ternary Regime B and the Vanquishment of the Offender: Pre-eighteenth Century Piketty’s work traces out the rather meandering and idiosyncratic development of what he calls ‘inequality regimes’ (2020: 2), with the geographical territory now known as the UK emerging as a product of these developments. In the early modern period, a ternary inequality regime emerged characterised by a trifunctional ideology reflecting the relative privileges and roles of the three main social groups, consisting of clergy, nobility and mostly agricultural workers and rooted in  localised, non-­ centralised state forms with regalian powers exercised by the monarch but delegated to the clergy and nobility, with the clergy providing ‘meaning by developing a narrative of the community origins and future, while the [nobility] defined the scope of legitimate violence and provided security’ (Piketty 2020: 60). The power to punish in such societies was based on brutal, physical, public vengeance, leaving marks on the body of the condemned person, and geared to the vanquishment of the offender, with such power shored up by the divine right of monarchical rule and authoritarian regal power (Foucault 1979). However, ternary inequality regimes were overwhelmed by key contradictions, including the emerging nation state undermining the power of the clergy and nobility, the battle over church property easing the way for the emergence of individual property rights and the promise this held out for large groups of people, otherwise held back by a virtual caste system. As Foucault (1979) also noted, the brutal penal regimes of ternary regimes were ineffective, with, the spectacle of the execution, often becoming the site of expressions of disorder.

 roader Context: Proprietarian Regime B and Disciplining of the Offender: Mid-Eighteenth Century—1910 The above-noted pressures led to the emergence of what Piketty characterises as a ‘ownership or proprietarian society’, based on a free market

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and liberal ideology and an extreme version of meritocracy which allowed no excuse for poverty, and was rooted in ‘a semi-religious defense of property right as the sine qua non of social and political stability’ and ‘censitarian’ principles, that is, where the right to vote and indeed to be a ‘respectable’ citizen/subject was conditional on property qualifications (2020: 99). Proprietarian societies were characterised by extreme levels of political, social and economic inequality. In the UK at the zenith in 1910 of the proprietarian development, the top 10% of the population (the top decile) received about 50% of total income and the top 1% (the top centile) received about 25% of total income. In 1910, the top 10% (the top decile) owned just over 90% of total private property and the top 1% (the top centile) owned 70% of total private property (Piketty 2020: Figures  10.2–10.5: pp.  420–423). Social expenditure by the state was limited, with some two-thirds of such expenditure being used for external defence and internal order maintenance by a standing army, a uniformed paid police force, a system of localised justice rooted in assize and magistrates’ courts and general government administration (ibid., Figure 10.15, p. 459). The power to punish was located in the increasingly bureaucratised, centralised state. Punishment practices led to the great incarceration based on central state-run workhouses, asylums and penitentiaries, all practising a form of redemption through a combination of total institution-­based deterrence and discipline. Piketty suggests that there were three challenges to proprietarian inequality regimes. Firstly, an internal challenge deriving from the glaring patterns of inequality and the rise of the counter-discourses of social democracy and communism, combined with a loss of faith in capitalist forms especially after the 1929 financial crash and the depletion of the power base of the landed estates through taxation. Secondly, an external challenge, also based on inequality, but rooted in colonialism, which gave rise to independence movements and raised fundamental questions about the founding assumptions of colonialism, particularly the contradiction between, on the one hand, claimed moral (and racial) superiority and religious mission and, on the other hand, extractive exploitation. Finally, what Piketty refers to as ‘nationalist and identitarian’ challenges (where identitarian is defined as ‘an ideology structured around identification

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with a specific social group’) (ibid. 2020: 1043), which ‘heightened competition between the European powers and led to their self-destruction through war and genocide in the period 1914–1945’ (ibid.: 418). The power to punish, increasingly exercised by the centralised state through publicly financed total institutions designed to deter and discipline, resulted in a huge interrelated network of gulag-like, interconnected prisons, asylums and workhouses that together incarcerated more than 250,000 people by 1900  in England and Wales, with 17,000  in prisons (Allen and Dempsey July 2016: 4), 100,000  in asylums (TimeChamber website 18/01/2022) and 135,000  in the Poor Law Union workhouses (Crowther 1981: 127) and yet was still seen as both too costly and insufficiently effective.

 roader Context: Social Democracy and the ‘Penal B Welfare Sanction’ (Garland 1985): 1910–1980 But, by the beginning of the twentieth century, according to Piketty, a ‘crisis of ownership societies’ began to take effect and led to the transition to social democratic inequality regimes in the UK. Piketty uses the term social democratic ‘broadly’ to denote ‘a set of political practices and institutions whose purpose was to socially embed private property and capitalism’ (Piketty 2020: 487) as measured by tax receipts and the distribution of taxes to social provision including education, pensions, health care and other social expenses (housing, social security) and a transformed, ‘regalian’ function (see ibid., pp. 458–459). The shift to social democratic forms was associated with new penal forms, especially the emergence of the ‘penal welfare sanction’, like probation and, more generally, the growth of the rehabilitative ideal expressed in the Prison Rules, that prisons were concerned to ‘encourage and assist convicted prisoners to lead a good and useful life’ giving some priority to offender welfare vis-à-vis victims and the public, and to offender rehabilitation, representing a move from disciplining the body in the gulag to treating deviance to ensure conformity. By the 1980s, when social democracy reached its zenith in the UK, the top decile’s share of total national income had been reduced to around

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30% and the top centile’s share of total income was reduced to about 5% and the top decile’s share of total private property fell to about 50% and the top centile’s share of total private property fell to about 20% (ibid., Figures. 10.2–10.5, pp. 420–423). Accordingly, total tax receipts in the UK increased from just under 10% of national income in 1910 to 40% in 1980 (ibid., Figure 10.14, p. 457). Taxes were used for social expenditure—in Europe (including the UK) tax receipts were spread over a wide range of social schemes, with regalian expenditure, concerned with external defence and internal order maintenance, relegated to a minor form, from nearly two-thirds of tax receipts in 1910 to 10% in 1980 (ibid., Figure 10.15, p. 459). Piketty suggests that a number of broader factors then contributed to the transition from social democratic forms to what he calls a neo-­ proprietarian regime based on a neo-liberal ideology. According to Piketty, these pressures were threefold. Firstly, making use of Arendt’s analysis of the origins of totalitarianism, he argues that unlike communism and Nazism in the earlier period, social democracies ‘built a welfare state within the narrow limits of the nation state’ (Piketty 2020: 480) and were unable to withstand global pressures, rampant global inequality exacerbated by the collapse of Soviet communism and the gangster capitalism that emerged in many ex-Soviet states, and migration patterns generated by de-colonisation and the long-term consequences of empire. It is worthy of note that it was in this context, that is, the immediate aftermath of the Second World War, that the ideas which were to become influential in shaping the subsequent neo-liberal ideology emerged in the work of Hayek (1944). Secondly, social democracies, like the UK, were unable to cope with the rampant inequality that began to emerge in the late twentieth century, largely because they ‘failed to institute new forms of power sharing and social ownership’ and did not ‘provide equal access to education and knowledge’ (ibid.: 486). And finally, the collapse of communism led to disillusionment concerning the ability of societies to achieve social justice and the ‘TINA’ sentiment, that is, ‘there is no turning back’. Two additions need to be made to this analysis to humanise it and allow for the influence of penal practices. Firstly, as Reiner (2007: 1, 2021: 87–88) suggests, the move from social democracy to neo-­ proprietarian forms constituted a ‘counter-revolution of the rich’, that is,

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a conscious human achievement resulting from the activity of a variety of pressure groups. Secondly, the penal welfare sanction on which social democracy relied came to be seen as ‘theoretically faulty, systematically discriminatory and unjust’ (American Friends Service Committee 1971), but in such a way that highlighted the desire for libertarian impulses, the ‘right to be different’ (Kittrie 1972) and unequal.

Immediate Context: The Neo-proprietarian ‘Counter-­Revolution of the Rich’, The Frugality-­Outsourcing-Punishment (F-O-P) Penal Policy Package and the Emergence of the Penal Crisis: 1979–2008 The counter-revolution of the rich in the 1979–2008 period led to a transformation of social democratic forms to give birth to a neo-­ proprietarian inequality regime rooted in neo-liberal logic. The neo-­ liberal logic at first appeared in a ‘contested’ or ‘first wave’ form between 1979 and 1992 and then in an ‘hegemonic’ or ‘second wave’ form between 1992 and 2007 (see Reiner 2021: 87–88; Steger and Roy 2021: Chap. 2). The neo-liberal ideology was based on a belief in free market capitalism, and underpinned, at its broadest interpretation, that markets are self-regulating. For Reiner, neo-liberalism is: an economic doctrine … [which] postulates that free markets maximise efficiency and prosperity by signalling consumer wants to producers, optimising the allocation of resources and providing incentives for entrepreneurs and workers. (Reiner 2007: 2, 2016: 99–100, 2021: 19–20)

However, this economic doctrine has profound personal, social and political implications. As we have already noted in Chap. 2, Margaret Thatcher declared in July 1988 during an interview and then later in a clarifying piece in the Sunday Times,

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there is no such thing as society … society does not exist, … society is made up of people, … who have duties, beliefs and resolve [to] get things done. They, uniquely, have ‘personal responsibility and choice’. (Thatcher Foundation Website accessed 16/06/2021)

Thus, this economic aspect of the ideology ceased to be one of many contested forms and became a way of life, ‘the hegemonic discourse of our times … the common sense, taken-for-granted orthodoxy’ because of ‘a complex, mutually reinforcing set of changes to culture, social structure and political economy’ (Reiner 2007: 151), sustaining in the UK a neo-proprietarian inequality regime, with this form also found in many, but by no means all, countries (USA, Australia, Canada). Free market capitalism normalised self-seeking competitive, egoistic individualism and ‘aspirations and conceptions of the good life have become thoroughly permeated by materialist and acquisitive values’ (Reiner 2007: 2). Individuals are seen uniquely responsible for their actions, rendering meaningless any social or institutional explanation. Support for democracy and individual freedom is tied only to the free market forms and limitations on liberty, especially restriction on the pursuit of unequal rewards in terms of income and wealth, are seen as destructive of this world and a major detraction from individual liberty. Free market capitalism has profound implications for non-regalian state forms, persistently pushing for their minimisation and the frugality of their operation, thereby keeping taxes to a minimum and apparently allowing citizens freedom to spend what money they have as they please. Privatisation is favoured, because market mechanisms are seen to ensure efficiency, effectiveness and economy. Neo-liberal ideology also sustained a mode of governance, applying the supposed practices of business founded on ‘competitiveness [and] self-interest’ to those state forms that remain necessary and transforming state officials under its influence into ‘self-interested actors responsible to the market and contributing to the monetary success of slimmed-down state enterprise’ (Steger and Roy 2021: 14), resulting in various hybrid structures mid-way between clear state provision and downright private enterprise, for example, in England and Wales, general practice doctors’ surgeries which are run as private businesses providing primary health

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care (an arrangement established in the 1940s, but given new zest after 1960), but funded by the state from taxes or Community Rehabilitation Companies circa 2015, which were run, as private businesses providing probation supervision and funded by the state from taxes. The creation of this neo-proprietarian inequality regime from the social democratic regime that existed before has required much political, cultural and economic effort. It is fragile and contradictory and continues to require much maintenance work. A significant part of this work has been based on converting the ideas of Hayek, an obscure Austrian economist, into a political ideology by a variety of pressure groups in the USA and UK and elsewhere, as well as the fateful conjunction and elective affinity of these ideas and the electoral fortunes of the British Conservative party in the late 1970s and the fortunes of the British ‘new’ Labour party in the 1990s, producing the neo-liberal consensus in the 1990s and early 2000s. A variety of zealous pressure groups continue a Taliban-like defence of their belief system. But a very significant on-going role fell to what Steger and Roy (2021: 12) refer to as ‘policy packages’ which operate both materially and ideologically. These are ways of remodelling citizens, cultures, political life and the economy, into the image required for neo-proprietarian regimes by applying what Steger and Roy refer to as the D-L-P formula, that is, ‘deregulation (of the economy), liberalisation (of trade and industry) and privatisation (of enterprises) (ibid. 2021: 14). Steger and Roy’s approach, primarily focused as it is on activities directly connected to trade, industry and finance, needs to be supplemented here by recognising that the regalian functions of the state have been subjected to different, but related processes and play an important part, materially and ideologically, in the shaping of society in a neo-proprietarian image. Reiner’s identification of the ‘law and order consensus’ that emerged by the 1990s is helpful here (2016: 146–148, 2021: 113–114). He suggests that the law and order consensus consisted of five features—crime as a key public policy priority (as ‘ public enemy number one’), crime as chosen by individuals (‘crime is caused by individuals’), priority being given to victims and the public (‘the victim is … central to criminal justice’), criminal justice reduces crime (‘criminal justice works’) and crime as not only a policy, but also a public priority (‘the conquering “control

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culture”’). However, although his account provides a broader context, it does not focus enough on our immediate concern, the penal system. Cavadino et al. provide further assistance on the matter, particularly in their delineation of what they call the ‘strategy A’ ‘law and order’ response (2013: 25–29). Amalgamating these two suggests that the penal policy package, in 1979–2008,was based on the following: • Frugality enabling the minimisation of state costs and expressing the backgrounding of the less deserving offender vis-a-vis the foregrounded, deserving victim and the potentially victimised, tax-­ paying public. • Outsourcing directly (through ‘economic’ contracts) and indirectly (by shaping sentiments) supporting the drive towards supposed effectiveness, efficiency and economy. • Punishment expressing the policy and public priority allocated to crime and the need for a harsh response, acting to incapacitate and probably to deter, individual, culpable offenders. Before proceeding to consider the 2008–2021 period, I will situate the above penal policy package in the period of neo-proprietarian inequality characterised by hegemonic neo-liberalism, taking account of changing patterns of crime and changing sentiments about punishment. The elevation of crime to the status of both ‘public enemy number one’ and the priority bogey man of public sentiment represented simultaneously both a real and an ideologically inspired threat. Reiner’s analysis of crime and crime trends is useful here. As was noted in Chap. 2, some level of crime is built into capitalist societies, that is, the particular, historically specific form of rule-breaking framed by the forms of inequality associated with emergent capitalist nation states. This set of institutionalised ways of seeing and doing separates out particular forms of rule-breaking from other forms and places unique meaning, attention, priority, significance and condemnation to these forms alone and not others. Unsurprisingly, this leads to a skewing of official attention towards ‘the usual suspects’, that is, those in a structural position of want and/or recklessness. The skewed consequences of the application of the criminal law are accentuated by the ability of

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dominant groups to frame laws, secure connections between law and private property and influence stereotyping and the inability of subordinate groups to use the legal process (Reiner 2016: 81). But surplus patterns of crime are generated by the very culture and structure of all inequality regimes including neo-proprietarian regimes. Imaginatively using Weber to pry open Merton, Reiner argues that such societies both encourage the growth of inequality, which limits real opportunities, and bid up aspirations, expressed only in material and competitively individualistic terms, thus continually, persuasively, obsessively exhorting or motivating  us to ‘succeed’ and avoid ‘failure’. This means that there is no intrinsic end-point to the pursuit of monetary success, that is, ‘rich is never rich enough’, that an emphasis on material success alone leaves open the methods by which such a goal is achieved (retailing soap powder or cocaine, who cares?) and an explicit emphasis on material goals means that there is no room for alternative forms of success, so poverty and ‘failure’ (and indeed wealth and ‘success’) are absolute (Reiner 2007: 14–15). Further, neo-proprietarian societies based on neo-liberal logics display four other features which maximise crime levels based on changes in labelling, the means to crime, the opportunities for crime and the absence of formal and informal controls. This ‘five-factor model’ enables Reiner (2007, 2016, 2021) a three-part periodisation of post-Second World War crime trends pertinent to our concerns viz. the 1950s to the 1970s which are characterised by rising crime, the 1980s to the early 1990s based on a ‘crime explosion’, and the early 1990s to 2010, a mysterious and ambivalent ‘crime drop’. He notes that a real increase in crime occurred in the 1950s–1970s as a direct result of the rise of consumer society causing changes in labelling (more property was owned and insured and more reporting of crime occurred), stronger motivations to possess a wider range of consumer goods (desires were stoked by advertising and there were simply more goods available) and by significant alterations in informal (the growth of youth culture and the decline in deference) and formal (greater pressure on the police, decreases in clear-up rates) control. From the 1980s to the mid-1990s, he suggests that a ‘crime explosion’ occurred, based on real increases in crime and resulting from changes in ‘motivation and internalized controls’ (Reiner 2016: 164). The changes

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in motivation were connected to the first shift to neo-proprietarian patterns of economic management at home and globally resulting in mass unemployment, the growth of poverty and deeper levels of inequality. The changes to internalized controls were connected to the simultaneous erosion of informal patterns of control consequent on the undermining of family economies and local communities by the de-industrialisation of the UK, particularly the closure of the coal mines and steel works, the breakup of working-class communities that this caused, combined with such values being supplanted by: a culture of egoism, the “me society” … stimulated under the guise of individual responsibility [and] “greed is good” … unbridled turbo-capitalism. (Reiner ibid.)

After this came the ambiguous ‘crime drop’, which he sees ultimately as a ‘criminological conundrum that elides full explanation’ (Reiner 2016: 165) although he suggests that it was initially fuelled by changes in recording practice, with Crime Survey for England and Wales data showing an increase in victimisation, but Police-Recorded Crime data showing a decrease in crime. As Reiner puts it: The “businesslike” police managerialism initiated by the Conservatives was tough on the recording of crime, if not on crime itself. (Reiner 2016: 164–165)

Later, after 1997, the fall in crime probably reflected a real drop in victimisation partly caused by a period of targeted social intervention that actually temporarily ameliorated economic conditions via the introduction of the national minimum wage and the growth of temporary affluence, a sort of ‘you’ve never had it so good’ period of the ‘noughties’ rooted in a ‘bubble of debt’ that burst in 2007/2008 together with the spread of more effective security measures especially in terms of individual (house burglar alarms and car alarms, immobilisers and steering wheel locks) and public measures (CCTV in public spaces). Finally, it reflected a significant crime displacement from the streets to the screens which, because fraud and computer-related crime were not included in official

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statistics, remained unrecorded and not officially known, although it was widely experienced by victims. In summary, the institutionalisation of a neo-proprietarian regime and of a neo-liberalism hegemony at first led to a crime explosion, geared to rising inequality, social exclusion and injustice and was explicable by the increasing pervasiveness of egoistic individualism combined with a ‘rich is never rich enough’ outlook where extremes of fawning admiration were associated with ‘success’ and opprobrium was associated with ‘failure’. Until recently, the lid was kept on crime by a combination of labelling practices and social and physical interventions. Police recording practices, as well as the delayed inclusion of fraud and computer-related crime in official statistics, led to underestimates of the extent of crime. Actual crime patterns were limited by innovations in public and private security, temporary debt bubble affluence and the introduction of the national minimum wage. But a harsh, punitive sentiment towards offenders was sustained, even in the period of ambiguously declining crime rates, partly by people scaring themselves or being scared by the crime story industry, partly that crime control had become part of an arms race between rival, ‘law and order consensus’ political parties vying for electoral success, but also because neo-liberalism promoted punitive sentiments in a number of ways. I concur with much of Reiner’s useful analysis here, but wish to develop it by differentiating three relevant groups—the general public, policy-makers (politicians and civil servants) and frontline penal system staff. Reiner appropriately offers an integrated theory of crime and control. The shift to increased ‘toughness’ in criminal justice is thus accounted for by reference to the same concepts, anomie and egoism that are used to explain the rise in crime. Regarding the general public, Reiner argues that neo-liberalism has led to an intensification of egoistic individualism in the general population linked to emphasising individual responsibility and the need for individual and family continence. But this, in turn, has led to ‘a lack of concern for a growing mass of those identified as the “other”, who are increasingly dehumanised, feared and regarded as suitable subjects for harsh punishment’ (2007: 153).

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Reiner also argues that this relative indifference to those defined as others is easily turned in to fury. In his earlier book (2007: 153), referring to Garland’s work (2001), Reiner attributes the receptivity of people to the message of the framing of the ‘other’ and their harsh treatment to the notion of ‘acting out’. In his later work (Reiner 2016: 196), he frames this as a deeper question, how to explain ‘the receptivity of the mass of population to the neo-liberal reading of economic crisis caused by neo-­ liberalism itself ’. The construction of the ‘other’ he sees as based on a ‘projection of anger about insecurity and relative deprivation onto the most vulnerable’. Interestingly, relating the issue to the discussion of working-class Tory voters, who were referred to as ‘angels in marble’ by McKenzie and Silver (1969) and seen as ‘rationally’ explicable in terms of the crumbs of comfort they derived from colonialism, he adopts what he terms a ‘psychodynamic approach’ rooted in the work of the Frankfurt School, and especially Fromm, in his attempt to explain the rise of fascism in Europe in the 1920s and 1930s in general and of popular punitiveness in particular. Reiner qualifies his account by suggesting that although crime does indeed have victims and social-economic pressures lead to crime, nevertheless the resort to psychodynamic explanation is justified as the aggressive energy stoked up by the increasingly suffering masses under ‘the counter-revolution of the rich’, is directed towards the ‘other’, rather than the dominant elites who caused it. The result is a ‘fury … projected outward with even greater ferocity against scapegoats’ (Reiner 2016: 197). However, Reiner’s view of control, that it is shaped by the deep seated psychodynamic processes whereby concerns about social inequality, injustice and insecurity are amplified and then projected onto scapegoats as ‘fury’, suggests that the punitive impulse is virtually entirely a top-­ down manipulation. I do not want to assert a mirror image here of bottom-­up vengeful impulse or deny a psychodynamic dimension, but argue instead for understanding popular sentiments about control as a result of both bottom-up and top-down forces. To apply a Durkheimian corrective then, the apparent ‘fury’ against scapegoats may also be a product of the social anxiety derived from the erosion of social values (see Durkheim 2013), with crime being seen as a harbinger and a cause, which suggests that punitive reactions result not only from top-down manipulation, but

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also from bottom-up sentiments, deriving from the real negative impact of globalisation and crime on local community structures. Furthermore, just as those who are powerful fear the void and treat property as semi-­ sacred so too do ordinary people. The sentiments of ordinary people concerning offenders are also based on the need to defend semi-sacred, identity- and status-defining ownership of consumer goods from the visceral direct threat of theft, burglary and fraud and computer-related crime. Such a view probably explains why opinion polls on public sentiments on crime often suggest that penal policy is ‘too soft’ (see Table 3.8 in Chap. 3). Of course, this does not deny that such bottom-up sentiments cannot be shaped and exploited by the retreat to the magical solutions offered by what Piketty refers to as identitarian politics, based on blaming ‘others’, whether ‘foreigners’ or offenders and acceptance of the view that the UK stood alone in 1939/1940, when faced by invasion by Nazis Germany and can do so again in 2021 when faced by the encroachment of the European Union, perceived as an ever-spreading external force intent on reducing national autonomy. Ironically, although the 1939/1940 resistance was to facism, the response to the twenty-first century threat has the tendency to precipitate a move to populist (for further comments on this term see below), proto-censitarian and authoritarian rule by property owners. The image of American, generally young, white, male, blue-­ collar, right-wing, Trump-supporting activists, invading the Capitol Building on 6 January 2021, as a protest against democracy was commanding. Reiner’s main account of the increasing harshness of control agents (policy-makers are not differentiated from frontline officials) is that policy-­makers are barred access, by neo-liberal assumptions, to the usual ‘levers available to governments to regulate the economic and social divisions, exclusion and injustice that are the root causes of crime’ (Reiner 2007: 153) and presumably are pressured by the same forces as members of the populace which encourage uncaring attitudes as noted above, and these processes make for a combination of official indifference and impotence tinged with political anxiety about not being seen to take effective action that heightens existing tendencies to attribute responsibility

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exclusively to offenders and understand offenders as doubly undeserving as they lost the race to material success and transgressed the law. But the position of policy-makers, our particular, but not exclusive, concern, aside from being a political calculation mirroring what is thought to be popular opinion, is also influenced by what Piketty calls the ‘“Pandorian” refusal to redistribute wealth’ (Piketty 2020: 705) or ‘fear of the void’ (ibid.: 714). Policy-makers have placed themselves and/ or have been placed in a position to act as defenders of the neo-­ proprietarian social order and orthodoxy. Property crime in and of itself questions the sanctity of this social order even if not the verity of neo-­ liberal ideology, representing as it does a form of redistribution and thus opening Pandora’s box and inducing ‘fear of the void’. Furthermore, crime undermines the myth of the ‘extreme form of meritocratic ideology’ (Piketty 2020: 709–710) which acts to enable, on the one side, the stigmatisation of losers and the blaming of the poor for their poverty and, on the other hand, the sacrialisation of high-income earners and high wealth holders justifying the turn to censitarianism and the ‘philanthropic illusion’ (ibid.: 715), that is, that billionaires necessarily know better when, how and to whom to allocate funds than the reviled state. This explains not only the move to punitive policies on the part of policy-­ makers, but also the fixation on the criminal law and the prison, as a defence of semi-sacred property and avoidance of fear of the void, especially where penal policy-making has few checks and balances imposed on it. Reiner’s account of control also tends to neglect the impact of material conditions on control. This is not to disagree about the importance of the impact of inequality on crime, or to disavow the importance of the actors’ definition and understanding of the situation as an explanation, but to emphasise the need to give more attention to how material factors play a key part in influencing control policy and its implementation. On crime causation Reiner approvingly quotes Raymond Chandler who wrote: Crime isn’t a disease, it’s a symptom. Cops are like a doctor that gives you an aspirin for a brain tumour. (Reiner 2016: 183)

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There is little doubt that Reiner considers material inequality to be one of the underlying causes of crime—indeed he states this in the next paragraph, namely, that it is ‘inequality, economic exclusion’ and ‘injustice’ and goes on to argue that the key department for tackling crime is the Treasury, not the Home Office or the Ministry of Justice. (ibid., p. 185)

Such a view underlies his analysis of the conditions of crime, being particularly pertinent for understanding what Reiner calls ‘motivation’. This ascribes considerable power to both material contexts and how we make sense of such contexts, in a neo-liberal world. It asserts a dispositional view which places some, but not absolute, importance on material conditions for the causation of crime. And yet Reiner does not develop this connection between patterns of control and material influences and he offers surprisingly little discussion of the under-resourcing or the outsourcing of the penal system and its myriad, negative effects. This omission has important consequences for how we should understand control agents, in particular frontline officials. In this pre-austerity period, there is no doubt that the perceived need for frugality and rolling back the state created poor material conditions in the penal system that were both harsh and punitive. The impact on staff was both material and consciousness framing. It was material in that frontline staff in courts and prisons, on a daily basis, were ‘weathered’ by inadequate court premises hosting increasingly legal aid-deficient practices and degraded prison working conditions and prisoners made fractious and vulnerable by degraded living conditions. Meanwhile, staff were exhorted, by the increasingly strident efforts to outsource penal functions, to see themselves ‘no longer as public servants … but as self-interested actors responsible to the market and contributing to the monetary success of slimmed-down state enterprises’ (Steger and Roy 2021: 15) and thus entirely justified in understanding their role as ‘doing more for less’, trying to ensure that less deserving defendants and prisoners conformed to the harsher more punitive conditions. In summary, I have argued that the shift to a neo-proprietarian inequality regime underpinned by a neo-liberal ideology led to a penal policy

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package based on the F-O-P formula, that is, frugality in public provision for offenders, the outsourcing of government services and the punishment of offenders. Such a formula was mandated, that is, rendered meaningful and necessary, by crime being seen by both the public and policy-makers, as a high priority. Frugality of public provision was connected to general desire to shrink public expenditure and the undeserving, secondary status of offenders. Outsourcing was mandated by assumptions about the supposed superiority of private enterprise as well as acting as a form of governance for the public sector and as a means of promoting frugality and harshness by contract. Punishment was mandated for policy-makers by the need to defend semi-sacred private property and avoid the fear of the void generated by unchallenged threats to property. Punishment was mandated for frontline staff as a response to the degradation of their own work conditions and the necessity of having to do more for less. Punishment was mandated for the public as a release of the fury generated by loss and the visceral threat posed by crime to their semi-sacred, identity- and status-defining ownership of consumer goods.

 eo-proprietarian Inequality Regimes, ‘Zombie’ N Neo-­liberalism, the A-O-P Policy Package and the Penal Crisis: 2008–2021 In this section, I want to set out the key factors leading to the transition from ‘hegemonic’ to ‘zombie’ or ‘third-wave’ neo-liberalism in neo-­ proprietarian inequality regimes (Reiner 2021: 88; Steger and Roy 2021: 47–51) and consider the implications for penal policy packages and the penal crisis. Unlike Reiner I do not think that the neo-liberal ideology of neo-proprietarian regimes and thus the regimes themselves have been ‘fatally challenged’ at least not yet, but do recognise the reality of a major existential threat-event, but, like Steger and Roy, am unsure whether this means demise or re-birth (Steger and Roy 2021: 125) or even mutation into some hybrid form. However, I will use Reiner’s term to denote the period, if only for the optimism he expresses. I go on to show how these changes mandated the penal crisis-exacerbating A-O-P penal policy

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package, whilst recognising some differences between 2010–2015 Coalition and 2015–2021 Conservative strategies. In the last section, I consider whether factors at work in the 2008–2021 period could lead to significant change, the demise, the re-birth or hybridisation of the neo-­ proprietarian inequality regimes and their ideologies and consider the implications of these changes for the related penal policy packages and the penal crisis.

 hallenges to ‘Hegemonic’ and the Emergence C of ‘Zombie’, Neo-liberalism In 2008, the neo-proprietarian project based on hegemonic neo-liberal justifications faced five main challenges. Firstly, a challenge was posed by the growing ‘unequal distribution of material benefits’ both nationally and internationally (Steger and Roy 2021: 101) and the consequent rise of protest expressed through various movements, but particularly the so-­ called ‘culture wars’, ‘woke’ movements and the ‘Black Lives Matter’ protests. Secondly, linked to the growing inequality, but a separate factor in its own right, growing financial opacity led to politicians being increasingly seen as members of self-interested, untrustworthy elites and the undermining of the political process, most dramatically illustrated in 2016, during the US presidential elections, when Trump portrayed himself as a citizen turned politician in order to be able to ‘drain the [political] swamp’. This is also the case in the UK, where Prime Minister Boris Johnson secured for himself a position of ‘clown king’ (Docx18/03/2021), from which he benefitted politically during the Brexit referendum, the Tory leadership race in 2019, the general election of late 2019 and even during the mismanagement of the pandemic (see Chap. 7). Thirdly, not unrelated to these processes, as Steger and Roy (2021: 102) suggest, was the real and politically manufactured internal and external challenge posed by Islamic jihadism. Fourthly, a challenge arose from the in-built contradiction of neo-proprietarian regimes between the drive towards infinite growth and a planet with finite resources. Fifthly, a rising identitarian challenge emerged associated with neo-proprietarian

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regime-stimulated globalisation threatening personal identities, local communities and national borders and cultures. But as Steger and Roy remark, in the pre-pandemic era (2021: 105 and 108), ‘the most serious challenge to the dominant … framework occurred [when] in 2008, … the collapse of the American over-valued real-estate market triggered the … global financial crisis’, leading to governments around the world, including the UK, being forced to provide bail-out packages, ‘hoping that such massive injections of capital into ailing financial markets would help prop up financial institutions deemed too big to fail’ and, because banks were no longer willing to provide credit, profitability reduced and recession followed. In the UK, the Labour government, which had made its accommodation with neo-liberalism, nevertheless injected some £137bn into the banks and gave guarantees worth £1tn against further failure (Full Fact 04/07/2019).

‘Zombie’ Neo-liberalism, the Emergence of the A-O-P Penal Policy Package and the Penal Crisis The 2008 global financial crisis had huge potential for undermining the neo-proprietarian project and its neo-liberal logic. The financial crash was profound and the global recession it unleashed extensive. The crash directly resulted from the very fundamental beliefs of this approach, namely, de-regulation and liberalisation. But instead, cynically, the crisis was presented by some UK politicians as being about unnecessary public debt incurred by an irresponsible and incompetent Labour government, with the national economy wrongly portrayed as the same as a domestic economy and, the solution posed, the need to cut public expenditure and the method chosen, which became the leitmotif of all policies, austerity. With the notion of austerity the rather routine, relatively low-key idea of state frugality was transposed into the dominant theme, the driving motor, the turbo-charger of other developments, in the penal realm as well as elsewhere (see in particular Spending Review 10—HM Treasury October 2010, and Spending Review 15—HM Treasury 27/11/2015).

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This move was mandated, not just nationally, but also internationally. In the UK, it conveyed electoral advantage by offering a plausible critique of Labour, which has been endlessly reiterated, whilst conveying a view which fitted in with the dominant, if not the only view, within the Conservative party. It offered a conception of conduct which also extolled the virtues of a smaller state and reduced public expenditure to enable citizens to achieve greater economic and moral continence and freedom. Abroad it gained support from the European Union (Varoufakis 2018), the World Bank and the International Monetary Fund (Steger and Roy 2021: 79). The wide mandate did not mean accuracy of vision, merely that the need to rescue the neo-liberal project was widespread, even if opposed by many economists on the grounds that austerity is counter-­ productive in that it deepens, not reduces public debt by decreasing tax receipts and increasing welfare spending, as shown by, for example, the survey of economists by the Centre for Macro Economics (2015). Austerity assumed a commanding role in the new penal policy package dragging outsourcing along in its slipstream. This was surprising because, as noted above, crime was public enemy number one and the penal realm was part of the arsenal to be deployed in the ‘war’ on crime and crime was ambiguously rising. But austerity was deemed necessary, if the financial continence of the nation was to be restored (and the defence of neo-­ liberalism was to be accomplished). The strategy that emerged was that more would have to be delivered with less. In other words, austerity and dealing with public enemy number one, crime, were simultaneously possible by subjecting the penal system to ‘transformation’ and ‘modernisation’. The central feature was a muscular rolling out of the neo-liberal mode of governance, by directly outsourcing penal services to market-­ based providers and by extending the logic of the market to the public sector, in order to convert public servants into self-interested, self-­ regulating actors no longer responsible to the public but to the market and geared to ensuring the ‘success’ of their enterprise by rationing the resources available to the public and running a ‘slimmed-down state enterprise’ (Steger and Roy 2021: 14). This strategy would enable more and better court and probation services and more and better prison places, to be delivered with less. For example, the wildly unrealistic claims made by Justice Secretary Chris

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Grayling, within the yellow submarine of neo-liberalism, combined with personal ambition, that by part privatising the probation service he could not only reduce expenditure on probation generally (as part of a drive to make the MOJ operation austerity-compliant as per SR10), but also could add 50,000 new clients to probation caseloads on new year-long supervision for short sentence prisoners released on licence, at no further cost via the magic mechanism of outsourcing combined with payment by results. The lack of realism of Grayling’s claims was then matched by the indefatigable rear guard action of this penal policy pratfall by successive Conservative governments between 2015 and 2021, taking the matter to the wire by only announcing full re-nationalisation in 2020 and delaying actual implementation to June 2021, during the pandemic and only then by explaining away the change by suggesting that it was a temporary measure made necessary by the impact of the pandemic and did not result from the inherent flaws of the outsourcing process and was certainly not due to fundamental faults in neo-liberal logic (see Skinns 2016, Chap. 6 and Chap. 5 of this book). The logic of austerity did not, however, remain exactly the same during the whole of the 2008–2021 period. On the contrary, as set out in Chap. 2, the logic of 2008–2015, that austerity was necessary in order to save the domestic economy from the incompetence of Labour, had worn thin by 2015. Furthermore, the impact of austerity on social policy was profoundly damaging, in social care, the NHS and income maintenance, with the emergence of notions of hostile environment polices connected to Universal Credit (UC), first introduced in 2010 (see Department for Work and Pensions November 2010). This damage was starkly revealed when the pandemic struck—social care and the NHS were not in a fit state (see Chap. 7) and the UC system was recognised, even by government, as so unfit for its foundation purpose, to maintain the income of the unemployed and sick, that those thrown out of work by the pandemic were seen to require an entirely new support mechanism, the furlough scheme. What I have referred to as type 1 austerity (circa 2010–2015) was transformed into neo-austerity circa 2016–2021, (type 2) at some point during 2016, with neo-austerity still rationalised as the need for domestic continence, but with an additional justification. This new direction was

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signalled when Brexit erupted as one of the defining political and social events of the period. Brexit may be understood as ‘the[then] … proposed … withdrawal of the United Kingdom from the European Union[EU], and the political process associated with it … with reference to the referendum held in the UK on 23rd June 2016, in which a majority of voters favoured withdrawal from the EU’ (Oxford English Dictionary December 2016). Right up until the UK left the EU on 31/01/2021 and since that time, Brexit was and remains controversial for a number of reasons—in the referendum the majority of those in favour of such a major change was small (only 3.8 percentage points; BBC News June 2016) and there was no legal duty on government to implement the referendum result; the process leading up to the departure was chaotic and the subsequent agreement has been fraught with difficulties (fish, lamb and borders in the North Sea between Northern Ireland and mainland UK are the obvious examples, but there are many more); the process has been characterised by secrecy and authoritarianism; and the matter has generated fundamental constitutional issues, for example, whether the then Prime Minister, Theresa May, could claim the royal prerogative to make the changes to the European Communities Act 1972, without recourse to parliament (Supreme Court January 2017), the illegal proroguing of parliament by PM Boris Johnson in December 2019 (Bowcott 24/09/2019) and, more recently, the indication that the UK government intended to break the terms of the withdrawal agreement between it and the EU, signed on 24/01/2020 (McKee 09/09/2020). There has been pre and post-deal much political, economic and social instability. The rejection of EU membership by the UK was not based on simple opposition to the EU as a supra-national body acting as an obstacle to the growth of neo-proprietarianism and its associated neo-liberal ideology. The UK had been an EU member since 1972 and had nevertheless been transformed into a neo-proprietarian political economy. EU economic policies were and are heavily influenced by such concerns. Nevertheless, there were aspects of the EU, for example, human rights, and the espousal by many of the member states of positions which were firmly within a conservative corporatist (France, Germany) or social democratic framework (Finland, Sweden), which set brakes on the movement towards the ‘Deregulation-Liberalisation-Privatisation’ (D-L-P) policy package and

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leaving the EU offered many possibilities for consolidating the hold of neo-liberal ideas, including the re-writing of law and regulation on a grand scale, employment rights, competition law, intellectual property, environmental law, financial services regulation, human rights legislation, criminal law and prison and probation regulation. But two aspects of the Brexit process may be seen to place emphasis on different matters, worthy of note here and taken up later. Firstly, the Brexit process gave a voice and a focus to what has been referred to as the identitarian challenge, a signification of difference and empowerment of intolerance, enabling political groups to yet further hegemonise the limited interests of the few, by locating them within the fears of the many. Secondly, Brexit has enabled neo-liberal governments to discover a new political strategy, an appeal to the no longer ‘silent’ majority, the popular vote. By chance Brexit has subjected an important, complex socio-­ political decision, the UK’s continuing relationship with the EU, to a popular vote, a referendum. Politicians here and abroad (USA, Turkey, Russia) have come to realise the significance of populism as a potential justification for their actions, in the context of a hardening of popular sentiments, as variously noted above, as well as significant social re-­ organisation in terms of the transformation of work, the decline of work-­ based communities and the subversion of collectivist logics, potentially precipitating a positive feedback loop likely to lead to an escalation of money-based rationality and support for managerialism as well as populist punitiveness, with politicians increasingly giving the public what they want, at least with regard to penal policy. The implications have been felt in the ambiguities surrounding the penal system and resources. The pragmatic neo-austerity policy that has been developed still holds austerity as the default position, but clear exceptions have been made, the net result being some limited deflection in the fanatical pursuit of austerity at any cost, in 2017–2019 period and much more clearly between 2019 and 2021.This was evident in the various ‘transformation’ programmes associated with the modernisation of the courts and prison estates (see Chaps. 3, 4 and 7) in 2017–2019. But then in 2019–2021, a clearer emphasis emerged based on providing 20,000 more police officers and a continuation of the court estate programme (particularly under the impact of COVID-19 and the

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development of the Cloud Video Platform) and an expansion of the prison estate transformation programme with claims to build 18,000 and then 20,000 new prison places by the ‘mid 2020s’ (see Chaps. 3, 4 and 7), albeit without any clear financial planning. The management of the new coronavirus in 2020–2021 seems to have made the second Johnson government more receptive to increasing public spending where the maintenance of industry is concerned (e.g. the furlough scheme) and, especially, on some regalian projects (police officers and prison cells). Furthermore, austerity had significant implications for the intensification of outsourcing (not the least the need to do more with less) and harshness, given the intensification of the patterns of inequality it created, with no relaxation of expectations about success being displayed in material possessions. We have thus accounted for the ‘A’ (austerity) and the ‘O’ (outsourcing) of the penal policy package associated with governments in the 2010–2021 period. We now need to turn to the ‘P’, punishment. Successive Conservative governments were faced with the prospect and then the reality, of no longer being on the right side of crime trends, crime was no longer ambiguously falling, but ambiguously rising. When fraud and computer-related crime was included in official accounts, the ambiguous crime drop came to look increasingly more like a displacement of crime from the ‘streets’ to the ‘screens’ motivated by the gap between the reality of poverty and expectations of material wealth (especially perhaps with those deemed members of the ‘precariat’) (Standing 2011), changing patterns of opportunity (growing use of the ‘wild west’ of the internet for financial transactions), changing skills patterns (more people ICT literate and owning or having access to ICT equipment) and changing patterns of control (weak formal controls in terms of the policing of fraud and weak regulation of internet use by internet providers, weakened informal controls linked to victims being kept at a distance— almost the equivalent of the difference between, in a war situation, shooting at live people near to you and carpet bombing cities from 30,000 feet—and the cold the calculation of egoistic individualism. The lid has been blown off crime in terms of how it is labelled and counted, motivated and otherwise produced.

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Data on fraud and computer-related crime was finally added to Police-­ Recorded Crime (PRC) in 2014/2015 and Crime Survey of England and Wales (CSEW) survey results in 2016/2017. PRC data suggests that fraud and computer-related crimes added 593,067 offences in 2014/2015, some 14% of all offences recorded in that year, and CSEW data for 2016/2017 fraud and computer-related incidents added some 5,159,000 incidents, some 46% of all incident types. This trend has continued to 2019/2020 for PRC data with 774,541 fraud and computer-related offences recorded in 2019/2020, some 13% of all other recorded offences, and for CSEW data with 4,551,000 fraud and computer-related incidents, some 45% of all other incidents. Figures for 2020/2021 also support the trend with PRC data revealing 837,104 fraud and computer-related offences, some 15% of all offences, and CSEW data showing 6,388,000 fraud and computer-related incidents, some 53% of the total. This does seem to support the view that property crime in particular has, at least, been displaced from the increasingly regulated streets to the largely still poorly regulated screens (given especially that much of the growth of fraud incidents is via the use of computers) and that the process was given extra impetus during the coronavirus lockdowns in 2020/2021, given the reduced opportunities to engage in street crime, because of the coronavirus regulations there were fewer victims available and also a greater likelihood of being challenged given that committing crime was definitely not a valid reason to be outside the home! Regarding PRC data, taking account of the changes in the counting rules introduced in 2017/2018, violent crimes, other crimes, fraud and computer-related crimes, total offences excluding fraud and computer-­ related crime and total offences including fraud and computer-related crime all increased in both 2014/2015 to 2016/2017 and 2017/2018 to 2019/2020. The only offence category that decreased was property crime and that only in the latter, 2017/2018 to 2019/2020 period, and this very probably is explicable by a displacement effect to fraud and computer-­ related crime. On balance then PRC data suggests that crime probably increased 2014/2015 to 2019/2020 (see Table 8.1 in this chapter). CSEW data, taking account of changes to counting procedures made effective in 2017/2018, shows that there was a decrease in crime in most incident categories (violent, property and total offences including), with

Recorded offences 2014/2015 Recorded offences 2015/2016 % Change 2014/2015 compared with 2015/2016 Recorded offences 2016/2017 (5) % Change 2015/2016 compared with 2016/2017 % Change 2014/2015 compared with 2016/2017 Recorded offences 2017/2018

Offence category 2,253,860

2,300,214

2

2,444,280

6

8

2,601,205

916,928

1,151,726

26

1,351,698

17

47

1,625,173

Violence against the Property person (1) offences (2)

654,661

31

20

529,634

9

441,007

403,758

638,358

10

5

652,362

5

621,017

593,067

Fraud and Other computer-related offences (3) crime (4)

Table 8.1  Police-recorded crimes in England and Wales, 2014/2015 to 2020/2021

4,881,039

21

11

4,325,612

9

3,892,947

3,574,546

Total excluding fraud and computer-­ related crime

5,519,397

19

10

4,977,974

8

4,513,964

4,167,613

(continued)

Total offences including fraud and computer-related crime

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14

745,807

No change

−3

2,339,512 −7%

1,778,017 −24%

18

1,918,238

No change

1,986,236 4%

848,401 14%

748,701

2,518,575

1,918,805

837,104 8%

12%

774,541

9

693,418

Fraud and Other computer-related offences (3) crime (4)

4,612,654 −8%

−5%

5,003,557

8

5,257,081

Total excluding fraud and computer-­ related crime

5,449,758 −6%

−2%

5,778,098

7

5,904,499

Total offences including fraud and computer-related crime

Sources: Adapted from Office for National Statistics (17/07/2020 and 22/07/2021) Notes: (1) Includes assault, sexual offences and robbery. (2) Includes theft, burglary, criminal damage and vehicle crime. (3) Includes all other offences—for example, drugs. (4) Statistics on fraud and computer-related offences have only been included recently, they are presented, but separate from other property offences. (5) Changes to the counting rules after 2016/2017 make comparisons with the years after this date unreliable. (6) PRC data, according to the ONS (17/07/2020) data, has been only slightly affected by the coronavirus pandemic and lockdown at least to March 2020. Data for Greater Manchester police was, however, not available to the ONS by the time of publication referred to

Recorded offences 2018/2019 % Change 2017/2018 compared with 2018/2019 Recorded offences 2019/2020 (6) % Change 2018/2019 compared with 2019/2020 2020–2021 % Change 2019/2020 compared with 2020/2021

Offence category

Violence against the Property person (1) offences (2)

Table 8.1 (continued)

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2014/2015 Apr–Mar 2015/2016 Apr–Mar % Change 2014/2015 compared with 2015/2016 2016/2017 Apr–Mar % Change 2015/2016 compared with 2016/2017 % Change 2014/2015 compared with 2016/2017 2017–2018 Apr–Mar (4) 2018/2019 Apr–Mar % Change 2017/2018 compared with 2018/2019 2019/2020 Apr–Mar (5) % Change 2018/2019 compared with 2019/2020 2020–2021

Offence category 5,363,000 4,908,000 −8 4,496,000 −8 −16 4,661,000 4,895,000 5

4,295,000 −12% 3,972,000

1,561,000 −4

−14

1,586,000 1,536,000 −3

1,366,000 −11%

1,690,000

Property incidents (2)

1,814,000 1,621,000 −11

Violence against the person (1)

6,388,000

4,551,000 −5%

4,482,000 4,775,000 7

–

5,159,000 –

– – –

5,662,000

5,661,000 −12%

6,247,000 6,431,000 3

−16

6,057,000 −7

7,177,000 6,529,000 −9

(continued)

12,050,000

10,212,000 −9%

10,729,000 11,207,000 4

11,216,000 –

– – –

Total including Total not including fraud and Fraud and computer-­ fraud and computer-­ computer-­ related incidents (3) related incidents related incidents

Table 8.2  The number of incidents reported to the Crime Survey for England and Wales (CSEW) 2014/2015 to 2020/2021 8  Why Has the Penal Crisis Been Exacerbated by Recent… 

419

−8

24

18

40

Property incidents (2) –

Total including Total not including fraud and Fraud and computer-­ fraud and computer-­ computer-­ related incidents (3) related incidents related incidents

Violence against the person (1)

Source: Adapted from ONS Appendix Tables Table A1 (17/07/2020 and 22/07/2020) Notes: (1) Includes assault and robbery. (2) Includes theft, burglary, vehicle crime and criminal damage. (3) Statistics for fraud and computer-related incidents were only included formally in 2016/2017. (4) Changes to the way that repeat victimisation is now counted render the figures for 2017/2018—and 2019/2020 inclusive, not comparable with data collected before this. (5) Despite the suspension of field work for two weeks in March 2020 and the use of slightly smaller samples (33,735 compared with 34,500) due to the coronavirus pandemic-caused lockdown, the ONS (17/07/2020) suggests the data was unaffected by the pandemic, at least to the end of March 2020

% Change comparing 2019/2020 with 2020/2021

Offence category

Table 8.2 (continued)

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the exception of fraud and computer-related incidents which increased between 2017/2018 and 2019/2020.On balance then CSEW data suggests that incidents reported probably decreased 2014/2015–2019/2020 (see Table 8.2 in this chapter). How do we interpret this anomaly, where seemingly there has been an increase in recorded crime (with a possible exception of property crime), but a decrease in the extent of victimisation according to the CSEW across nearly all categories. Clearly, as in previous periods, the discrepancy between PRC crimes (increasing) and CSEW incidents of victimisation (decreasing) may be due to the lack of equation between crimes recorded by the police and incidents reported to the CSEW. For example, with regard to violent crime, CSEW data tends to deal with the more trivial of violent offences and PRC data is a better guide to the extent of serious, violent crime than CSEW incidents, as PRC data strives to cover all such crimes and is not dependent on a relatively small sample reporting generally infrequent serious, violent victimisation. Thus, there would seem to be some limited evidence that the more serious types of violent crime have increased and although the ONS specifically attributes some part of the increase to ‘improvements in police recording practices’, it also accepts that there has been a genuine increase in violent crime (ONS 17/07/2020). Furthermore, it is clear when violent offences are broken down, then some violent offences have increased disproportionately. The offence of possession of weapons seems to show a marked increase of 18%, but it is uncertain whether this is due to a simple increase in the number of people actually engaging in this behaviour or partly explained by changes in counting rules and changes in police activity with regard to stop and search and other operations. To pursue this matter, we can consider data derived from NHS accident and emergency admissions, which suggests that whereas admissions to hospital for all people for assault with a sharp object have risen from 3848 in 2012–2013 to 4986 in 2018 (a rise of 30%) admission for those 10–19 years for the same problem has increased from 656 to 1012 (a rise of 55%) (National Health Service February 2019) PRC and CSEW data indicates crime patterns altered during the pandemic. PRC data shows in particular a large decrease (24%) in property

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offences, probably attributable, not to any diminished motivation to crime, but significant changes to opportunity caused by the coronavirus regulations. The data also shows that there was a growth in other offences (14%) and in fraud and computer-related crime (8%), the latter almost certainly constituting a displacement effect, diminished opportunities on the streets leading to more use being made of the nefarious opportunities that the Internet provided. The CSEW data suggests a similar trend with the bulk of the increase being attributable to growth in fraud and computer-­related incidents. Furthermore, the pressures towards punitiveness have been amplified in the 2015–2021 period, amongst all groups. For the general population, firstly, there has been an intensification of egoistic individualism, driven by socio-economic trends between 2015 and 2021 and the economic impact of the pandemic on the exacerbation of inequality (despite the furlough scheme for employees and loan schemes for business) and no let-up in the drive to achieve monetary success and retain the trappings of consumption against economic instability and criminal depredation. Egoistic individualism is on display on a daily, iconic basis in the official decisions of government (threatening to pull out of a legally binding contract with the EU, for example; awarding pandemic-related contracts to cronies) and the unofficial actions of the British Prime Minister (being married in a Catholic church, despite being twice divorced). Secondly, ‘othering’ has been also radically intensified by Brexit and continues to be expressed within the still relatively unpoliced social media outlets, providing an open conduit for irrationality, conspiracy theories and the dislike of difference. The pandemic has exacerbated these tendencies further providing narratives with easily definable scapegoats (‘the Chinese virus’; ‘the Indian virus’) and emphasising the ‘problem of borders’ with the number of hate crimes recorded by the police increasing by 8% between 2018/2019 and 2019/2020 (Allen and Zayed 10/12/2020: 3). Thirdly, the pandemic has exposed the fact that success—in terms of the continuing enjoyment of material goods is extremely fragile—conjuring up a different fear of the void for all. It is also notable that the pandemic has demonstrated that such consumption is dependent on not only a functioning economy, but also a strong state that is willing and able to intervene.

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For policy-makers and officials, neo-liberalism for much of the 2015–2021 period has continued to weaken both the desire of governments and the levers available to governments, to regulate market forces and patterns of inequality that contribute to crime. However, the pandemic has forced a recognition of just how hostile an environment Universal Credit (UC) has created for those on low wages, unemployment benefits or sick pay and has led to the creation of a furlough and business loan scheme, for those who it was deemed should not be treated in the UC way. Accordingly, it has opened up a different fear of the void for governments in the 2019–2021 period, namely, the de-legitimation of the whole neo-liberal ideological project, resulting in a form of bifurcation, splitting deserving, law-abiding, previously employed people and companies (who receive furlough and loans, respectively), from those undeserving already unemployed or sick, who admittedly got a (temporary) £20 a week bonus, from offenders, especially ‘serious’ offenders who are increasingly seen to require reduced and conditional early release and longer prison sentences, combined with more intrusive methods of intervention when either released on license into the community or given community sentences.

 he Re-birth, Hybridisation or Death T of Neo-­proprietarian Inequality Regimes and Their Justifying Ideologies and the Implications for Penal Policy and the Penal Crisis We must now consider whether since 2008, there has been a significant change in the dominant inequality regime and its attendant ideology in the UK and what implications any shift might have for the future of penal policy and the penal crisis. Three scenarios follow from the combined influence of the financial crash, Brexit and the new coronavirus pandemic. Attention focuses on possible future inequality regimes, dealing with three possibilities.

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Scenario 1: Neo-proprietarian and Neo-liberal Re-birth This model, based on a preservation of the regime and its ideology, depends on some kind of stimulation that might be obtained, for example by a ‘fourth industrial revolution’ (Schwab 2017) based on the ‘complete digitisation of the social, political and economic sectors’ or, given the urgency of the climate crisis, a real or ersatz ‘green revolution’. Either of these might be combined with austerity type 3 (where type 1 was justified by the ‘irresponsibility’ of Labour between 2007 and 2010 and type 2 by the need to be ‘match-fit’ for Brexit), justified on the new basis of the need to have a competitive edge in the post-Brexit world and/or to recoup spending on pandemic management, combined with the further pursuit of outsourcing in order to ostensibly improve the efficiency of any remaining state-run organisations and spread neo-liberal consciousness even further. The implications for penal policy are clear—more austerity, an even greater emphasis on outsourcing in an attempt to match rising demand from the expansion of the police and rising crime and to further discipline the public sector to market consciousness, and a greater emphasis on punishment and incapacitation particularly through ‘smart’ devices (enabling a more systematic form of home detention, the ultimate form of prison privatisation). More austerity and more outsourcing will lead to the further exacerbation of the penal crisis by making resources scarcer. Furthermore, the enhanced sense of the fragility of the economy will not only add to the competitive struggle and thus stimulate more conflict and crime, but also further harden attitudes and bring all to fear of the void, leading to greater support for punitive methods of penal intervention amongst the public and policy-makers. However, there are clear contradictions with the fourth industrial revolution model whether based on mass digitisation or a type of ‘green revolution’. In the former case, there is already a yawning gap ‘between winners and losers of the ICT revolution, the digitised spread of misinformation through social media and the increasing reliance on robots and algorithms in all spheres of life’ (Steger and Roy 2021: 127). In the latter case, there is also a yawning gap between winners and losers in any green

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revolution based on converting homes, travel requirements and general life styles to a low-carbon economy, using costly air or ground-source heat pumps, expensive and still experimental electric vehicles lacking a suitable support infrastructure, inefficient and expensive train travel and more expensive food consumption patterns. The failure of the Conservative government to take the initiative on such matters in the lead up to and during COP26 only deepened such concerns. Furthermore, given the existence of triumphant, but not necessarily law-abiding never rich enough, ‘winners’ and highly discontented ‘losers’, there is a need for a strong state to find ways to impose control and this might lead to an even greater development of digitised surveillance of everyone providing new and, so far, relatively undeveloped possibilities which contain many inherent threats to democracy and social and political freedom (Zuboff 2019).

 cenario 2: Neo-proprietarian Inequality Linked S to Neo-liberal Populism The second and most likely scenario is the continuation of a neo-­ proprietarian regime but connected to a modified ideology combining neo-liberalism with populism, evidence for this change being able to be already found in the most recent Spending Review document, SR21 (HM Treasury 27/10/2021). The concept of populism needs some thought. There has been much debate about the meaning and indeed usefulness of this term (see Mudde 2014). I wish to use the term here not as a euphemism for bigotry or as a mere ‘battle term’ or ‘kamfbegriff’ (Shriver 01/02/ 2017; Mudde and Kaltwasser 2017: 1). Populism is treated here as a ‘thin ideology’ or a ‘thin-centred ideology’, that is, a set of beliefs which cannot stand alone but need other content to be an effective political form (Stanley 2008: 107) but which contains certain essential features, namely: • the presumed existence of a previously politically neglected ‘people’ who, though variously and often vaguely defined, are seen to be more

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or less homogeneous and possess privileged understanding (a general will) that should be heard and actioned; • the existence of a more or less unified self-interested political elite, who have ignored ‘the people’ leading to a loss in confidence with the institutions and values of liberal democracy and an increasing impatience with political procedures; and • the presence of a charismatic outsider who can turn the general will of the people into a programme of action (albeit with various forms of ‘irresponsible bidding’ Bull quoted by BBC News 06/03/2018), whilst continually demonstrating his/her credentials, not by the measured success of policies, but by the demonstration of her or his continued status as an outsider let in to the political world and continually demonstrated by highly gendered notions of effectiveness connected to presentations of femininity in contrast to the male-dominated political establishment and the sacrifice that was needed in order to become a citizen politician given that it separates them from their ‘proper’ home maker role or by constructions of masculinity via notions of virility and use of the popular voice (Mudde and Kaltwasser 2017). A number of factors have been adduced to explain the trend towards populism including the proliferation of social media forms, a decline in deference and the improved educational levels of the populace providing a sense of entitlement to criticise politicians and globalisation and the erosion of traditional values and their support communities (see Mudde and Kaltwasser 2017). To this list may be added in the particular context of the UK, the personal ambition of key political figures, the political ambitions of the currently dominant party and the conjunction, within ten years of each other, of the financial crash, Brexit and the new coronavirus pandemic. In the British case, a thin veneer of populism has been stuck on to, permanently or temporarily, the thick ideology of the neo-liberal common sense of the Conservative Party, leading to the temporary or permanent apparent curtailment of some aspects of the neo-liberal programme, in particular the drive to shrink the state and impose austerity, even in the face of pandemic ‘over-spending’. The strategy holds out the hope of keeping the inequality regime going and reanimating some neo-liberal

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values and does so at comparatively little cost given that the actual deviation from austerity and other values may be extremely limited. It will be down to the charismatic clown king to ensure that any gap that develops between the claims, the reality of British Treasury policy and events in the social world are managed by a combination of remaining an outsider let in by continuing to treat politics with a certain disdain and wry detachment and humour that means policy failure and untruth seemingly never matter and thus ‘if nothing is true, then all is spectacle’ (Snyder 2021: 56). This gap is also increasingly managed by the techniques noted by Klemperer and quoted by Snyder (2021: 56–63), notably presenting lies as facts, frequent repetition of untruths to conjure up connection between speaker and audience (in the 2016 USA presidential election ‘lock her up’, for example), magical thinking constantly defining issues as the opposite of what they are (lies as truth and truth as lies) and creating misplaced faith on the basis of slogans and creative myths. The SR21 document reveals some of these processes at work. The overall tenor of the document is reluctant, temporary Keynesian interventionism with funding promised for a variety of services (hospitals, social care, schools and roads merit some £13bn, over five years). This position is justified by the need to fulfil popular needs (for effective hospitals, better schools, improved roads) and made necessary by the weaknesses of such services both revealed and made worse by the pandemic. It is also justified by what the public voice may be shaped to say given that the government hopes that their ambiguous ‘levelling up’ agenda may be engineered to appeal to us all. Once the exceptional moment has been transcended, it is suggested, business as usual can be resumed based on the need to drive towards competitiveness in world markets and provide pandemic payback. The section of the SR21 document that focuses on penal policy package openly promises a temporary move away from austerity but is a form of ‘irresponsible bidding’ with the status quo on funding actually preserved to 2024/2025, outsourcing remaining the default setting and a distinct punitive predilection being favoured. The very thin ideology of populism is deployed as a political strategy to ease the move from an interventionist pandemic state back to the deprivations of austerity (justified by the need to pay back the costs of the pandemic). The thinness

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does not mean that the ideology does not play an important role—of trying to, in the narrower view, maintain the electoral advantage of the Conservative Party and the political fortunes of its PM, Boris Johnson, and in the wider perspective, justify the inequality regime. In more detail, the SR21 document seems to suggest a definitive, if temporary, break with the austerity part of the A-O-P formula, based on significant boost to MOJ budgets amounting to £3.2bn or an increase of about 39% comparing the 2019/2020 budget with Treasury-projected figures for 2024/2025. The funding is explicitly targeted on expanding courts (to make justice swifter for victims), prisons (by providing 20,000 additional places by the ‘mid-2020s’ to better protect the public not enhance rehabilitation) and probation capacity (to offer an improved second chance, reducing reoffending via better through-the-gate support and stronger community supervision). An unspecified amount of funding is even to be made available to expand legal aid entitlement (whether criminal or civil legal aid is not specified) (HM Treasury 27/10/2021: 101–102). However, even when all these changes have been effected, by 2024/2025, the MOJ budget of £11.5bn will only be 15% higher than the £10bn budget received in 2009/2010, before the Coalition/ Conservative austerity programme took effect. When inflation is factored in, the conveniently omitted running costs of any new prisons included (see Chap. 7), some £800m (Dawson 01/11/2021) and the bigger throughputs in the penal system resulting from a combination of increased police presence and increased crime levels taken into account, it is unlikely that resource scarcity will have been diminished or eliminated and the indecent and inhumane conditions which now prevail in many courts, prisons and probation offices will have been ameliorated. Furthermore, the penal policy package elaborated by HM Treasury also attempts to gain purchase by making a popular appeal thematised in ‘traditional’ ‘law and order’ terms. The paper emphasises the need for the expansion of the criminal justice system in the face of rising demand. It continues to foreground victims and treat offenders as undeserving. It defines the central role of the penal system as the protection of the public by means of incapacitation. Any effort to modify the injustice of restrictions on criminal legal aid is relegated to a brief ambiguous snippet and

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the provision of a second chance for offenders, discussed only in terms of probation and omitted entirely regarding prisons. It is clear that when, not if, the policy fails, if acknowledged at all, it can be explained away by a popular appeal resting on the recalcitrance of offenders (offenders thus cause crime and penal policy failure) and/or the bungling of minor officials. In sum, SR21 suggests that the Johnson government’s transition from neo-liberalism ideology towards some kind of hybrid neo-liberal populist agenda is real, with populism acting as a kind of shield. Events are likely to rely on particularly the Prime Minister’s charisma to cover the attendant pratfalls, rapidly shifting policies and the big gaps between what is said and what is actually done. All bode badly for the penal crisis—the further underwriting of the ‘law and order’ stance which will exacerbate the moral crisis and continuing resource scarcity, driving further outsourcing built-in as it is to the system will exacerbate the material crisis.

Scenario 3: Populist Authoritarian Nationalism This third scenario is the least likely and thus will be only mentioned in passing. Maybe the death knell of neo-proprietarianism and its neo-­ liberal ideology did sound around 2008 and the subsequent period has witnessed, as Reiner suggests, a preparatory ‘zombie’ period, or a chrysalis form, that will emerge into an entirely new inequality regime based on populist authoritarian nationalism. A number of pressures have pushed towards nationalism. The aftermath of Brexit blamed the problems faced by the UK on the association with the EU and suggested a magical solution based on the reassertion of national identity, with the UK going it alone, as it is purported to have done in 1939/1940. Pressures deriving from the pandemic edged in this direction—with restrictions placed on movement leading to geographically specific lockdowns causing ‘not from my area’ suspicions, the separate management of the pandemic leading to the fostering of the identities of the four constituent territories of the UK thereby pushing towards regionalism and infection control, vaccine delivery priorities and

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infection consciousness (linked to notions like the ‘China virus’ and the ‘Indian’ variant) all emphasising the protection of the nation. Pressures also pushed towards populism defined as above. Brexit provided a learning experience for government that popular opinion can be a given semi-formal status within the political process and pushed in the appropriate direction by the right kind of ‘clown king’ (see Docx 18/03/2021). Populism also conveyed electoral advantage in the fight with Labour for the ‘red wall’ constituencies. Pandemic management provided opportunities for populist policies tied to premature opening up to allow for Xmas shopping, summer holidays and the portrayal of the final opening up on 19/07/2021, as ‘freedom day’. The neo-liberal inheritance—increasing social conflict and rising crime—could easily provide a justification for a resort to authoritarianism. Furthermore, the pandemic heightened these already existing authoritarian tendencies by apparently demonstrating the need for a strong state in exceptional times, in order to facilitate business and industry, provide broad-based financial support, minutely regulate social life and deploy the armed forces in peacetime. It was also used as an alibi for not needing to pay heed to normal parliamentary process. Perhaps, a crime pandemic can be manufactured to replace the real but badly managed SARS-CoV-2 pandemic in popular concerns. Such a scenario would mean the most far-reaching change replacing not only the ideology but also the inequality regime, shifting from neo-­ liberalism and neo-propreitarianism to some kind of facism rooted in identitarian ideologies. Such a scenario would probably not modify the A-O-P penal policy package very much and thus not assuage the penal crisis. It would almost certainly lead to an emphasis on making penal resources scarce, not to further the austerity project, but to deal with the expanded number of those deemed to need penal intervention (authoritarian states and wider nets of penal intervention are associated) and because there would be a need to ensure that the ‘enemies’ of the nation/ people/state are treated harshly. It might result not so much in outsourcing, that is, the selling off of state services to private corporations, but the annexation of some private resources to aid state policy. The likelihood of a shift to ‘America first’, identitarian or nationalistic authoritarianism, as seen during the Trump presidency, is not impossible

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but some of its limits have been revealed in the American presidential election in November 2020. After a hard-fought election Trump lost, but it is worthwhile recalling that this loss was based on gaining 47% of the overall popular vote, retaining 24 of the 52 states, maintaining a cult-like following amongst some groups and retaining a strong standing in the Republican Party and the maintenance of the spirited assertion that we are living in a post-truth world, where as Synder notes ‘post-truth is pre-­ facism’ (Staff and agencies 06/06/2021; Snyder 2021: 63). The history of Russia since 1991 and in particular its recent invasion of independent Ukraine shows that post-liberal, nationalistic, facist and totalitarian states are not ruled out even in the twenty-first century.

Conclusion The failure of successive Conservative governments to assuage the penal crisis has been attributed, in this chapter, to their continuation of the austerity, outsourcing and punishment penal policy package. Austerity has been shown to have acted as a master strategy to counter the existential threat posed by the bank failures of 2008. The deployment of outsourcing has been shown to have enabled the institutionalisation by contract of the financial and cultural concomitants of austerity and seemingly provide a low-cost method of managing the emergent criminogenic consequences of a neo-liberal inequality regime. Punishment has been shown to have been mandated by growing fears about rising crime, ‘fear of the void’, reduced opportunities for social intervention, the harsh logic of doing more for less, the spread of increasingly uncaring sentiments about others, the fury over being left out in the race to success and fear for the security of identity- and status-defining material possessions. This chapter ended by considering whether the financial crash, Brexit and the new coronavirus pandemic are likely to lead to the re-birth, hybridisation or demise of neo-proprietarianism and its justifying ideology, neo-liberalism. It was concluded that the most likely scenario, the rudiments of which are already evident, was a move not away from neo-­ proprietarian forms but a shift in the ideology to a blending of neo-­ liberalism with populism. Such a change would have dire consequences

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for the penal system with more of the same penal crisis-exacerbating austerity (albeit disguised), outsourcing and punishment. In the penultimate chapter, I go on to consider what can be done to avoid this most likely dire scenario and try to restore both broader society and the penal system to less barbaric forms.

References Allen, G and Dempsey, N (July 2016) Prison Population Statistics, House of Commons Library Briefing Paper @ http://www.antoniocasella.eu/nume/ Allen_Dempsey_2016.pdf. Allen, G and Zayed, Y (10/12/2020) Hate Crime Statistics, House of Commons Library Briefing Paper @ https://commonslibrary.parliament.uk/research-­ briefings/cbp-­8537/#:~:text=The%20highest%20rate%20of%20hate%20 crimes%20recorded%20per,Wales%20including%20the%20British%20 Transport%20Police%20was%20177. American Friends Service Committee (1971) Struggle for Justice, New  York: Hill and Wang. BBC News (June 2016) ‘EU Referendum results.’ BBC News (06/03/2018) ‘What is populism and what does the term actually mean?’. Bowcott, O (24/09/2019) ‘Johnson’s suspension of parliament unlawful, supreme court rules,’ The Guardian. Cavadino, M, Dignan, J and Mair, G (2013) The Penal System, London: Sage. Centre for Macro Economics (2015) The Importance of Elections for UK Economic Activity @ https://cfmsurvey.org/surveys/importance-­elections-­ uk-­economic-­activity. Crowther, M A (1981) The Workhouse System, London: Botsford Academic. Dawson, P (01/11/2021) ‘The number that wasn’t in the budget for prisons’ @ https://www.thejusticegap.com/the-­n umber-­t hat-­w asnt-­i n-­t he-­b udget-­ for-­prisons/. Department for Work and Pensions (November 2010) Universal Credit: Welfare that Works, @ https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/48897/universal-­c redit-­f ull-­ document.pdf. Docx, E (18/03/2021) ‘The clown king: how Johnson made it playing the fool’ The Guardian.

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Durkheim, E (2013) Two Laws of Penal Evolution in S Lukes and A Scull (eds) Durkheim and the Law, London: Macmillan. Foucault, M (1979) Discipline and Punish, London: Allen Lane. Full Fact (04/07/2019) ‘Labour did not spend £1tn on bailing out banks in the financial crisis @ https://fullfact.org/economy/1-­trillion-­not-­spent-­bailing-­ out-­banks/. Garland, D and Young, P (eds) (1983) The Power to Punish, London: Heinemann. Garland, D (1985) Punishment and Welfare: A History of Penal Strategies, Aldershot: Gower. Hayek, F A (1944) The Road to Serfdom, London: Routledge. HM Treasury (October 2010) Spending Review @ https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/ file/203826/Spending_review_2010.pdf. HM Treasury (27/11/2015) Spending review and autumn statement @ https:// www.gov.uk/government/publications/spending-­review-­and-­autumn-­statem ent-­2015-­documents. HM Treasury (27/10/2021) Budget and spending review: documents @ https:// www.gov.uk/government/publications/autumn-­b udget-­a nd-­s pending-­ review-­2021-­documents. Kittrie, N (1972) The Right to be Different: Deviance and Enforced Therapy, Baltimore: John Hopkins University Press. McKee, L (09/09/2020) ‘Boris Johnson’s government is threatening to breach international law. It could backfire spectacularly,’ CNN. McKenzie, R and Silver, A (1969) Working Class Conservatives in Urban England, London: Heinemann. Mudde, C (2014) ‘The Populist Zeitgeist’, Government and Opposition online journal published by CUP @ https://www.cambridge.org/core/journals/ government-­and-­opposition/article/populist-­zeitgeist/2CD34F8B25C4FF F4F322316833DB94B7. Mudde, C and Kaltwasser, C R (2017) Populism: A Very Short Introduction, Oxford: Oxford University Press. National Health Service (February 2019) Hospital admissions for youths assaulted with sharp objects up almost 60% @ https://www.england.nhs. uk/2019/02/teens-­admitted-­to-­hospital/. Office for National Statistics (17/07/2020) Crime in England and Wales: Year Ending March 2020 @ https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/crimeinenglandandwales/ yearendingmarch2020.

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Office for National Statistics (22/07/2021) Crime in England and Wales: year ending March 2021 @ https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/datasets/crimeinenglandandwalesappendixtables. Oxford English Dictionary (December 2016) ‘Brexit’. Piketty, T (2020) Capital and Ideology, Cambridge: Belknap Press for Harvard University. Reiner, R (2007) Law and Order, Cambridge: Polity Press. Reiner, R (2016) Crime, Cambridge: Policy Press. Reiner, R (2021) Social Democratic Criminology, London: Routledge. Skinns, D (2016) Coalition Government Penal Policy 2010–2015: Austerity, Outsourcing and Punishment, London: Palgrave/Macmillan. Schwab, K (2017) The Fourth Industrial Revolution Portfolio London: Penguin. Shriver, L (01/02/2017) ‘Why the term populist is dishonest’ @ https://www. bbc.co.uk/news/av/world-­38832894. Snyder, T with illustrations by Krug, N (2021) On Tyranny, London Bodley Head. Staff and agencies (06/06/2021) ‘China, Fauci and hoaxes: Donald Trump targets the usual suspects in return to stage,’ The Guardian. Standing, G (2011) The Precariat, London: Bloomsbury. Stanley, B (2008) ‘The thin ideology of populism’, Journal of Political Ideologies, 13(1): 95–110. Steger, M B and Roy, R K (2021) Neoliberalism: A Very Short Introduction, Oxford: Oxford University Press. Supreme Court (January 2017) Miller v Secretary of State for exiting the EU @ https://www.supremecourt.uk/cases/docs/uksc-­2 016-­0 196-­p ress-­ summary.pdf. Thatcher Foundation (2021) Thatcher interview and clarification Women’s Own and Sunday Times, Margaret Thatcher Foundation Website @ https:// www.margaretthatcher.org/document/106689. TimeChamber Website The Asylums List, accessed 18/01/2022 @ https://www. thetimechamber.co.uk/beta/sites/asylums/asylum-­history/the-­asylums-­list Varoufakis, Y (2018) Austerity: New York: Vintage Books. Weber, M (1964) The Theory of Social and Economic Organisation, Glencoe: Free Press. Zuboff, S (2019) The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power, London: Profile Books.

9 What Is to Be Done?

Introduction The ‘counter-revolution of the rich’ engineered by neo-liberal politicians, pressure groups and vested interests has produced an inequality regime of disquiet, a war of all against all. The role mandated for the penal system in this society of disquiet inspires both distrust and distaste as through austerity, outsourcing and punishment, its task is to impose surplus, materially deprived and questionably legitimate control on an increasingly fractious population, the majority of whom have been exhorted to achieve the fabulous wealth nightly paraded on TV screens, have little hope of doing so and thus display disruptive and harmful conduct and become enmeshed in the criminal justice system. Neo-liberalism represents the key harmful ideological paradigm of the present and any remedies to the present situation must address this ideology and thus the broader social formation and follow a certain course, concerned with social and political change to end the ‘counter-revolution of the rich’, thereby engaging in the broadest and possibly the most effective form of crime control, prevention. I will refer to this as the social and political agenda and consider it first. But also given the probable directions of change noted at the end of Chap. 8, the harms of a move to neoliberal populism are also noted here. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 C. D. Skinns, Conservative Government Penal Policy 2015–2021, https://doi.org/10.1007/978-3-031-00797-2_9

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I will then go on to consider the reforms to the penal system that are so desperately needed to alleviate the penal crisis. I will do this by arguing for the appointment of both a parliamentary commission of inquiry (PCI) and also a democratic standing advisory body on the penal system. Finally, I will articulate some key questions for these inquiries. But before I do this, there is a need to make clear the harms of inequality regimes-­ based neo-liberal views.

 he Harms of the Current Neo-proprietarian T Inequality Regime Current neo-proprietarian inequality regime rooted in neo-liberal ideology generates economic, personal, social and political and environmental harms (Reiner 2007; Piketty 2020; Steger and Roy 2021). Such regimes glory in deregulated markets, which rather than producing economic stability have resulted in disruptive boom and bust cycles. For example, the recent bank collapse based on irresponsible pursuit of profit through financial instruments created with reckless disregard for their wider consequences (see Reiner 2007: 506). The relatively unfettered markets of the regimes, rather than being effective, efficient and waste-avoidant, have generated self-interested concentrations of national and international corporate power, for example, Coca Cola and Pepsi in the soft drinks market (Reiner 2007: 4) and ‘Facebook’ or ‘Meta’ in the social media market (McNamee 2019). They have also produced associated concentrations of equally self-interested personal and family wealth holdings  and income streams  which distort social and political life (Piketty 2020: and see also Chap. 8) and programmed wastefulness in order to maximise profits. As Piketty (2020) rightly notes, this state of affairs is not a product of the natural state of things, but state intervention. Market societies based on neo-liberal tenets contain a number of personal harms. Reiner (2007: 7) suggests that at a personal level the ‘greed is good’ message leads to a ‘corrosion of character’. For him, egoism, short-termism, irresponsibility and amoral competitiveness contribute towards a neo-liberal identity which is ‘psychopathic’, that is, amoral,

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uncaring and solely focused on the maximisation of personal gain, at any cost to others. Market societies institutionalise this psychopathic form such that it is found in the behaviour of organisations and states, leading to, amongst other things, the failure of international efforts to limit global warming. Market societies also replace human need with purchasing power as illustrated by the heartless marketisation of health and the reduction of the provision of education services to the ability to pay not think. Neo-proprietarian inequality regimes based on neo-liberal ideologies produce a number of social and political harms. Thus, ownership societies, by sustaining radical divergence in wealth and income, cause surplus social conflict and higher levels of crime, by promoting egoistic individualism in the context of radical and unrealistic goals, defined purely in material terms (see Chap. 8). They promote a censitarian tendency, a move from one person one vote, towards one pound one vote, as it is presumed, only those with a financial stake in society deserve a say in social and political affairs. This is illustrated in the fawning treatment of billionaires and the special access to the levers of power that is granted to them, for example, in the access to the UK Prime Minister available to the industrialist James Dyson in the matter of ventilators (see BBC News 21/04/2021a). It is also part of what Piketty (2020: 715–716) refers to as the ‘philanthropic illusion’, based on the assumption that the philanthropy of billionaires is superior to state provision. In contrast to this privileging of the rich are the various measures to undermine the voting rights of already marginalised groups, as illustrated by the various initiatives, in the USA and the UK, to limit the ability of some groups to exercise their citizen rights, exemplified by the recent move, by the second Johnson government, to introduce photo ID for voters in the context of no real threat being posed by fraudulent voting (Walker et  al. 11/05/2021; Cohen 18/12/2021). Neo-proprietarian regimes and the ideology on which they are based are presented as the only way to organise societies, with the TINA dictum (‘there is no alternative’) being presented as an iron law of history, that is, that communist societies are bound to fail and similarly any attempt to mitigate the consequences of unbridled free market capitalism are also doomed to inevitable failure and there is no alternative to neo-liberal

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ideas and the practices they inspire. However, historical change is contingent and human-made, and as Reiner (2021: 128–130) suggests, the choice, as choice does exist, is between far from perfect, but nevertheless, humanistic social democracy and ‘barbaric’ neo-proprietarianism. Finally, market inequality regimes operate at excessive environmental cost. At a national level, neo-proprietarian societies are fired by the ceaseless drive towards infinite profit and economic growth in the context of finite environmental resources pushing them to ‘treat…nature like a toilet’ as the UN Head Antonio Guterres put it at the COP26 conference in November 2021  (Bawden 01/11/2021). Internationally, psychopathic individuals, nation states and international companies act to undermine the consensual, effective and timely action needed to address the climate crisis. In Chap. 8 I suggested that due to recent traumas—the banking crash, Brexit and its aftermath and the pandemic—neo-liberal ideologies have become hybridised with populism in order to defend the inequality regime in the new circumstances of the 2020s. It is likely that this will do nothing to limit existing harms and a great deal to add further harms, with many of the new and old harms pushing towards authoritarianism. Firstly, it is likely to stimulate extremist ‘othering’. Populism depends on the conjuring up of a unified ‘people’, the purpose and consequence of which is to necessarily include those perceived to have the right qualities. These qualities may be related to property ownership or the ‘correct’ sense of, or characteristics associated with, national identity as exemplified by the seemingly inevitable question asked of people of colour ‘where are you from?’ as in ‘there ain’t no black in the union jack’ (Gilroy 2002). The notion of a unified people necessarily excludes others, the poor, those deemed foreign (but not those who are rich and foreign) and offenders and reduces truth to a social sentiment, a spectacle, not a scientific proposition. This approach oversimplifies the plurality of groups and interests in late modern societies and leads to, with a little help from social media ‘friends’, extremism and authoritarianism. Secondly, populism is predicated on conjuring up images of conventional politicians as members of a unified corrupt, self-serving, self-­ interested group that have ignored ‘the people’ leading to the justification of the abrogation of the checks and balances of parliamentary process and

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eventually liberal parliamentary democracy itself. Such a view contrasts markedly with reality with politicians being far from a unified group over almost any matter of interest, between parties and within parties. The careful regulation of parliamentarians is necessary, not because they are all corrupt, but because checks and balances are the key way to limit any aberrant behaviour and make democracy work. Thirdly, populism depends on the emergence of a charismatic leader who simply knows the general will and promises to deliver, by means of ‘irresponsible bidding’ with the gap between the bid and delivery being closed by the exercise of charisma and ‘alternative truth’ giving yet further succour to authoritarian political forms.

Social and Political Agenda Clearly, as the penal crisis has been exacerbated by the actions of successive governments applying the A-O-P (austerity/outsourcing/punishment) formula, mandated by neo-liberal ideas, then a significant part of the answer to the ‘what is to be done’ question exists outwith the penal sphere, and resides in, social and political reconstruction. Before the sheer weight of the task crushes any sense of its achievability, it must be recalled that the demise of social democracy was not natural or inevitable, but the direct consequence of human action. It was swept away by the counter-revolution of the rich. New regimes can be made. The task is not impossible, just difficult. What is needed is the creation of a sustainable alternative to neo-liberal-inspired government based on a modern version of social democracy which rests, not on the institutional forms of the twentieth century, but, as Reiner (2021: 26–31) suggests, on similar values, of justice, democracy, security and human interaction. This new form is probably best termed ‘social democracy’ (Reiner 2021: Chapter 1; Piketty 2020: 969) and may be set out briefly in the following points:

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• A new ethics based not on egoistic but on ‘reciprocal individualism’ which Reiner sees as rooted in ‘the fundamental equality of worth of all people’ (Reiner 2021: 137). • The re-creation of aspiration based on the recognition of the importance of satisficing material needs and enabling non-material aspirations to be foregrounded again. The pandemic has made many people step down from the work treadmill, a treadmill which largely exists to satisfy ever-growing, industry-defined, profit-productive wants. The pandemic has raised the possibility of a redefinition of ambition, not to work to accumulate material objects in the egoistic, competitive race for recognition, and planetary destruction, but to work to fulfil satisficed material needs and the good of the soul (Paxton 1972). • A return to more progressive taxation and greater transparency in income and wealth holdings (Piketty 2020: 975–976). • New models of international financial co-operation (Reiner proposes a new Bretton Woods Agreement) capable of dealing with capital flows and protecting nation states (Reiner 2021: 134–135). • A return to the welfare state including new models for education, the National Health Service, including psychiatry and dentistry, income maintenance and climate emergency action. • A break with old models of employment towards new models of co-­ operative enterprise, replacing the categories of employers and employees and new models of sharing voting rights in firms (Piketty 2020: 972). • A wholly new national and international orientation to the use of planetary resources, which at a national level requires a green revolution rejecting the broadly accepted dogma that growth is always good and based on, in the UK, a state-run overall coordinated strategy involving a complete re-nationalisation of rail transport to turn it into a subsidised community resource which will drive down pollution, aid, not hinder, travel and enable a switch from road and air travel together with a new home heating agenda based on government subsidies supporting research into new methods of heating, the development and promotion heat pump or other technology, the installation of home and office insulation and the muscular regulation of the market of suppliers and installers of such equipment.

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No such viewpoint currently exists. No current political parties in the UK espouse anything like such a programme. Even the Labour Party, which might have been expected to move to a coherent ‘social democratic’ view in the last ten years, is still far from producing an effective opposition to existing Conservative policies, let alone an alternative and convincing vision, notwithstanding the recent pathetic attempt (see the YouTube video issued by the Labour Party 04/01/2022). The task of setting a reforming penal agenda is made harder by this deficit given that any democratic change needs a significant majority to challenge the neo-­ liberal consensus.

Penal Agenda Perhaps it is best, in the light of the fetishisation of the criminal law in general and the prison in particular, to start with the limitations inherent in penal intervention. Firstly, crime is a capital concept. This means that there is a fundamental (basic or normal) level of crime in such societies, which is never likely to be eliminated, because the very concept of law has the control of these inequalities built into it and because of the processes of law making, application and control deal with the ‘usual suspects’. However, more optimistically, since crime is conditioned by relative levels of inequality, sentiments about individual ethics and the goals that we should pursue, then there is the opportunity to reduce surplus crime patterns, by easing the burden of inequality, increasing social justice and moving individual (and organisational) ethics from the ‘psychopathic’, to the ‘reciprocal’. It is important to note that this will not eliminate crime, but it will reduce crime levels to proportions that can be more readily managed by systems geared to combining desert, rehabilitation and public protection, make it less of a threat and reduced to being perpetrated by relatively few, grossly ‘weathered’ and distorted individuals. Less emphasis on material goals will reduce the opportunities to crime, and value patterns based on reciprocal individualism will also impose greater internal and external formal and informal controls. Next we need to recognise the limits of prosecutorial agencies in terms of both their investigatory powers (recognising that there is a zero sum

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situation between investigatory powers and citizen/subject rights) and deterrent impact. Finally, we need to recognise that crime control by the penal system alone is generally limited to reducing reoffending. As already noted, the most effective way of dealing with crime is not to process identified offenders but to prevent crime from being perpetrated in the first place. As has been shown in Chap. 8, the main factors leading to many forms of crime are the inequalities and social exclusion evident in late modern societies, combined with promotion of a ‘dog eats dog’ competitive individualism and unrealistic, entirely materially defined goals. Heaping punishment on punishment and deprivation on deprivation does not persuade people to go straight or convince them of the legitimacy of their treatment. What is needed are forms of social policy that emphasise social justice as a good in itself by ameliorating the patterns of inequality and injustice in society, for example, by an improved national minimum wage, better regulation of employment, the elimination of the abomination of zero-hour contracts, new forms of work engagement involving co-operative enterprise, real not bogus jobs based on enforced self-­ employment, measures to tackle discrimination on the basis of race, gender or socio-economic status, the re-introduction of a genuine welfare state and an alternative message to ‘greed is good’. Any medium-term policy regarding the penal system crucially depends on morally right action being taken regarding the SARS-COV-2 pandemic, that is, the full vaccination, including booster shots, of the world population against the new coronavirus. Until then any penal policy will always be a hostage to fortune, dependent on whether new outbreaks occur, because wherever there are significant numbers of unvaccinated and immunity-elapsed vaccinated populations, there will be a ‘laboratory’ for the production of new, socially disruptive SARS-COV-2 variants, in probably more transmissible and probably more deadly forms. My comments on the need for change in the penal system are organised as follows—firstly, I point to the need for a democratic and fundamental review of the penal system concerning not only what is to be done, but also how penal policy is made in the future. I then go on to set out some of the key questions that these bodies need to address.

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Chapters 3, 4, 5, 6 and 7 show that the penal system is in chronic crisis. My previous work and this book show that, directly and indirectly, governments have played a significant role in creating, sustaining and exacerbating this crisis over the last ten years. In reality, the crisis has been existent for much longer and, as Chap. 8 suggests, is traceable to the emergence of neo-liberal ideas and their institutionalisation beginning in the late 1970s. However, a convergence of opinion has emerged on how the problem should be resolved, coming from curious and unlikely bedfellows, most recently, the second Johnson government and, since 1995, a group of academics, lawyers, politicians and penal administrators (see the letter to ‘The Times’, included as Appendix 2.1 in Blom-Cooper and McConvile 2014: 39). The solution proposed by both groups is a ‘root and branch’ inquiry (Conservative Party General Election Manifesto November 2019: 19) or an ‘overview, on the scale of the Gladstone inquiry to propound a sound and authoritative penal philosophy for the 21st century’ (Letter to ‘The Times’ by McConville and others in Blom-­ Cooper and McConville 2014: 39). Indeed, the two, otherwise quite divergent groups agree on the form the inquiry should take, namely, a royal commission (see Conservative Party General Election Manifesto November 2019: 19; Robert Buckland’s comments at the House of Commons Justice Select Committee 24/03/2020: Q1 and Q67; and Blom-Cooper and McConville 2014, viii and 31–32). To be clear, a royal commission is a form of non-statutory, one-off inquiry which is not dissimilar to other non-statutory bodies, including ad hoc inquiries and inquiries undertaken by a committee of Privy Councillors, except that it is more formal, carries greater prestige and, being non-statutory, does not have to hold its proceedings in public (Caird 30/011/2016: 4–5 and 20). I find myself in agreement with the proposal for an inquiry, I diverge from these influential groups on the form it should take. Hereinafter I will refer to the two parties advocating a royal commission as the second Johnson government and the Blom-­ Cooper group. It may be that for the second Johnson government, one of the key drawbacks of a royal commission, that they ‘take minutes and waste years’ (PM Harold Wilson quoted by Theakston 2014: 4) is an advantage, representing nothing more than a ‘long grass’ solution for a government

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struggling to manage the multiple economic, social and penal consequences of the last ten years of Tory governments, especially Brexit, all made worse by the pandemic and government pandemic management. The recent history of the 33 Royal Commissions that were appointed between 1945 and 2000 that produced a report (four did not) would seem to support such sentiments as the average time between appointment and report was 2.6 years (based on data from Barlow 19/06/2013; see also Caird 30/11/2016). The Blom-Cooper group recognise this problem and propose some well-founded possible methods of ameliorating the issue. They suggest that it can be reduced by any inquiry having tight terms of reference, the appointment of an experienced chair and secretariat, the imposition of a fixed timetable with a non-negotiable two-year period in which to report, restrictions imposed on the amount of verbal evidence taken, a secretariat which is well-led and amply supported and good at handling data and a ban on junkets to make domestic or overseas inspections. The next key problem of royal commissions is that they are one-off bodies, with little formal opportunity for systematic follow-up or on-­ going influence on government responses to the report produced and any subsequent penal policy-making. This would constitute a distinct advantage to a government that seems to function by prime ministerial fiat but remains a problem for the Blom-Cooper group proposal for a royal commission. This suggests to me the need for not just a one-off inquiry whether royal commission or some other body, but the need for a standing body to continually authoritatively overview penal policy. I propose here a body along the lines of a modified standing advisory council, with many of the features set out above and below for the royal commission and also having legal powers to require governments to apply the Lammy principle, ‘explain or reform’. Thirdly, a very significant problem for royal commissions in the past has been their tendency to be drawn from the ‘great and the good’, lack engagement with the public and, unlike statutory inquiries, have no presumption that their proceedings will be open to the public (Shepheard 22/11/2019: Caird 30/11/2016: 3). Such matters may be seen as advantages by a government that could benefit from patronage and secrecy and need cover for how conclusions and recommendations are drawn from

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the evidence. But this matter is a clear problem for the more progressive proposal of the Blom-Cooper group. Openness in the operation of the inquiry as well as a more democratic stance would seem to be necessities for a progressive inquiry, including how the inquiry members are appointed, how (not whether) it collects well-founded public opinion on penal matters, with attention being given to overcoming the tendency of self-interested politicians and pressure groups to sow doubt which distorts understanding and saps action (the denial problem), social media forms promoting, amplifying and sustaining false beliefs and dividing opinion (the extremism problem) and the tendency of popular debate especially on social media to flippancy (the Boaty McBoat Face problem). All three problems can be generally addressed by patterns of education that promote critical thinking, an understanding of science and social responsibility, the production of systematic, well-founded evidence and its systematic dissemination by a well-organised, independent scientific community capable of peer checking results and, in the public domain, independent fact checkers, like ‘FullFact’ and more generally an independent press. The first problem is easily exemplified by the asbestos industry and the link between some forms of asbestos and lung cancer and other diseases (see Mesothelioma Help website—accessed 02/11/2021), tobacco companies and the link between smoking and lung cancer (Procter 2011), sugar producers and the link between sugar, obesity and diabetes (Taubes 2016, Chapter 4) and the oil industry and the link between fossil fuel use and global warming (BBC News 21/10/2021b; Greenpeace 07/11/2021). It also depends on a misunderstanding of the nature of science—we have to recognise that science cannot establish absolute truth, absolute certainty, given the asymmetry between any truth claim (that it is universally, infinitely true) and any evidence (which is always based on finite, human observation). But this does not mean that we cannot come to an informed judgement about explanations based on the amount of peer-­ reviewed evidence that supports one view rather than another, the assessment of the relative probability that they are correct and applying Occam’s razor that superior explanations depend on the fewest assumptions. One final consideration here, when dealing with practical social intervention, is assessing the relative risk of serious harm against the probability of the

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event happening and adopting the precautionary principle, that where there is a risk of serious harm and the probability of the event occurring is also high, then scientific doubt must be secondary to precautions being taken to reduce serious harm. The extremism problem concerns the impact of our use of social media on our subsequent use of social media and our beliefs. The two main processes operate for different reasons to create positive feedback loops and then become part of the same positive feedback loop. Unsurprisingly we use social media to follow what interests us—we create our own ‘filter bubble’. And by so doing we create a positive feedback loop by only looking at those items that do interest us, creating a tendency for the feedback from one action to amplify the next, and so on. Social media also acts to create filter bubbles, but in a much more systematic and active way, by surveilling our ‘likes’ social media can supply items that we might not have otherwise found that also support these interests. Another positive feedback loop. But then the two positive feedback loops create a third— we look at items that interest us, we are supplied with similar items by the algorithms of social media and both create a further amplification spiral of views, driving towards closure, extremism, conspiracy theories, lack of respect for alternative views and division into warring camps (McNamee 2019). This problem is in need of an urgent solution, probably by stopping social media from being merely platforms and to force them to recognise what they actually are, publishers. The final problem I have deemed the Boaty McBoat Face issue simply relates to the tendency of some social media forms to devolve into discourses reminiscent of the banter of ‘Bill and Ted’s Excellent Adventure’. It is addressed by, from the start, treating public opinion as advisory only. Fourthly, royal commissions have had trouble dealing with deeply divisive issues (Shepheard 22/11/2019). Indeed, the royal commission on the penal system appointed in 1964 was brought to a premature end in 1966, ‘as it was felt that the time was “not opportune for a single review of the penal system” that could draw clear and robust conclusions and recommendations’ (Barlow 19/06/2013). Such an issue is not a problem but an advantage for the second Johnson government, as the matter will be rendered no longer divisive by the government setting the reference terms, the agenda and membership of the royal commission allowing it

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to pre-define the conclusions of any review and preserve the punitive consensus, the very neo-liberal and/or populist agenda, which has exacerbated the crisis. This is evident in the notes that accompanied the Queen’s speech which expressed a commitment to ensure a ‘fair justice system’, which they defined, idiosyncratically (as per manifesto), as ‘that [which] works for the law-abiding majority and gives a second chance to those who wish to make a fresh start’ (Cross 19/12/2019). Such a formulation has a Manichean oversimplification about it, which is inherently exclusionist (and thereby counterproductive in terms of ‘second chance’ rehabilitation), whilst apparently holding a peculiar notion of fairness which makes no reference to what might be thought to be the canons of a fair and just system, a right to a fair trial, to be assumed innocent before being proven guilty, a right to legal representation, the avoidance of punishment without law, proportionate punishment and procedural justice for those offenders within the system. Furthermore, the same document goes on to assert that the royal commission will ‘deliver a fundamental review of key issues affecting the system’ and that ‘the commission’s recommendations should help deliver improvements to the criminal justice process to make it more efficient and effective’, when the glaring task then and now seems to how to make it less materially deprived by tackling austerity and outsourcing and more legitimate by improving public, staff and prisoner perceptions of the moral justification of the system and the decency of treatment it metes out to defendants and convicted offenders, whilst not fetishizing the criminal law in general and the prison in particular, and making not just the penal institutions, like prisons and probation, but government penal policy-making more accountable. But this problem remains for the more progressive inquiry proposed by the Blom-Cooper group. There would be a need to ensure that alternatives to the punitive consensus were properly considered. Their account of 2014 suggested that the royal commission could enable politicians to escape the ‘bind from which there is no electable escape’ (Queen Mary University 18/11/2014), a clear reference to what I have characterised as the need to escape the punitive consensus. Unfortunately, I am not sure how any royal commission could achieve the velocity to escape ‘planet punitive consensus’, without significant social and political change and I am not convinced that, in the context of a royal commission, an

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emphasis on ‘cross-party support’ in itself would be sufficient to allow a systematic assessment. Perhaps then the solution to this urgent matter is the appointment, not of a royal commission, but a parliamentary commission of inquiry (PCI). The model here could be the PCI on Banking Standards (PCBS). This inquiry was appointed in July 2012 and produced five reports, with the final document being published in June 2013. The PCI ‘worked at pace’, had a cross-Houses of Parliament and cross-party membership, a highly respected chair from the field (Andrew Tyrie, who was chair of the Treasury Select Committee at the time), did not operate in secret and engaged with the public in a series of citizens’ assemblies and juries, even in this highly technical field (Gay 24/07/2012; Shepheard 22/11/2019). Thus, a PCI needs to be set up to examine the operation of the penal system. But, because of the limitations of any one-off inquiry, also a mechanism to guide on-going government penal policy-making via a standing advisory body, with the power to enforce a version of Lammy’s principle ‘explain or reform’ (08/09/2017: 7), that is, for government to either give good reasons, backed by well-founded evidence, why a policy put forward by the PCI should not be implemented or implement the recommendation or, in the case of policy produced by government, give good reasons backed by well-documented evidence why the policy is necessary or abandon or substantially change the policy. It would be presumptuous and anti-democratic to foreclose on many of the issues any PCI or advisory body should consider, but there are clearly some important questions (and solutions?) offered in this book about the future of penal policy, with a view to alleviating the penal crisis. In constructing these I have been guided not only by the conclusions of this and my previous work (Skinns 2016), but also some of the insightful questions posed by Blom-Cooper and McConvile (2014: 35). I will divide them into matters concerning court administration and sentencing, prisons and probation. Recognising the urgent need for systematic empirical evidence on many matters, my comments on research questions in Chap. 10 deal with some of the matters raised here.

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 rgent Questions for the Proposed PCI U and the Standing Advisory Body on the Penal System Here I want to set out some of the key social/political/ethical judgements that would need to be resolved by a PCI and standing advisory body. The research questions set out in Chap. 10 complement these by suggesting topics on which empirical evidence is needed to help with the resolution of such issues. One of Blom-Cooper and McConville’s questions sets the right tone for the whole penal system, indeed public affairs generally: ‘Given a finite budget for the penal system how best should it be spent?’ (2014: 35). This question emphasises the need for public money to be spent responsibly—it rightly stresses the need to be careful with public funds, but also poses the need for the right balance to be struck between spending public funds and functional, just, humane and decent provision of court, prison and probation services. How can the penal system avoid being the victim of yet further ideologically driven austerity? How can it achieve procedural fairness? How can it ensure that the whole system contributes to justice? Following consideration of the broader material question, Blom-­ Cooper and McConville ask a further pertinent question ‘What should the public reasonably expect of the penal system’ (2014: 35)? There can be little doubt that public expectations about the impact of the penal system have become caught up in the party political search for advantage within the punitive consensus and become weaponised. It is time that public expectations are grounded in reality about what courts, prisons and probation can realistically achieve when dealing with convicted offenders. An aspect of this is the present foregrounding of the victim and relegation of the offender, in effect the creation of a zero sum relation between the public and victims. Is this justified or even useful? Furthermore, were the arrangements put in place, in courts, prisons and probation, during the pandemic justified given the high price they extracted in terms of the well-being of court users, prisoners and probation service users?

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Inevitably such questions lead to the need to determine the relative priority of punishment, rehabilitation and reparation as well as other penal aims. I agree with Blom-Cooper and McConville here (2014: 18) that such priorities should be set by parliament. However, for me there can be little doubt that the priority list is exactly as expressed elsewhere in this book—with culpability determining the title and the extent of any sentence and thus desert being the short-term goal, rehabilitation being its desired medium-term outcome and reparation (not necessarily in money terms) being an essential third element. How should parliament set down this priority and make provision for all penal agencies, including the Minister of Justice and MOJ, to comply? A ‘job done’ attitude to bias in the penal system related to race is emergent despite the fact that many of the relevant Lammy Review Report (08/09/2017) recommendations have not been implemented (see Chap. 6). The official stance is blind to socio-economic bias in the penal system. It is only a matter of time that the same politically inspired complacency circumscribes attempts to limit bias in relation to women offenders in the penal system. Recognising that the time for talking is at an end how can the Lammy dictum, ‘explain or reform’ (ibid.: 7), be effected in the penal system with reference to race, women offenders and socio-economic and other disadvantages, whilst retaining the necessary function of the penal system to condemn and limit aberrant and damaging conduct?

Courts The cuts in legal aid have undermined the economy of law firms and limited defendants’ access to justice. How should the Bellamy recommendations be implemented ‘without delay’? The court transformation programme will not achieve its main aim of cost reduction even by its revised target date of 2023 but has led to changes which are highly dysfunctional as revealed by the onset of the pandemic in March 2020. How can the resilience of courts be restored and court waiting lists be significantly and speedily reduced? How far should remote court working be developed, under what conditions? Should the court use of remand in custody be restricted?

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There has been a clear trend towards the marketisation of penal services in the last 30 years. One aspect of this has been the outsourcing of debt enforcement of court-imposed financial penalties. Is such debt enforcement being undertaken in an appropriate way and is it properly regulated and monitored? Underlying this issue is a further question which is, is it ever appropriate to transfer the regalian powers of the state, in total or in part, to private, self-seeking, for-profit companies? If we answer yes to this, then how do we ensure that such powers are not misused in order to maximise profits? Is the move by policy to greater severity in prison sentences justified? If so how? Is it appropriate to not only retain, but extend the use of whole-life orders, and to do so, in some cases, to those under 18 years at the time of the offence? How can the de facto move by courts towards greater severity of sentencing be limited and what implications does this have for the Sentencing Council and the independence of courts? Is the ‘tragic necessity’ of short prison sentences adequate justification for their continued availability and use? Is the emphasis on punitive community sanctions appropriate? Does it neglect the benefits of rehabilitative and reparative penalties? How can a greater emphasis on rehabilitation be accomplished regarding community sentences? Should consideration be given to the restoration of the unit fine system, as enacted by the Criminal Justice Act 1991 (and extended to all court financial impositions) in order to reduce the criminogenic economic marginalisation of already mainly poor offenders?

Prisons The prison transformation programme has failed. How can adequate numbers of high-quality prison places be provided (but tied into a policy which avoids fetishisation of the prison and operates within the scope of realistic public expectations about what prisons can accomplish) and adequate levels of staff (including ring-fenced key workers) and prisoner living and staff working conditions be significantly improved? There has also been a trend to the marketisation of prisons and prison services in the last 30 years. Has this produced the best value for money,

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as well as just, decent and humane facilities? Underlying this issue is a further question particularly pertinent in a custodial setting, which is, is it ever appropriate to transfer the regalian powers of the state, in total or in part, to private, self-seeking, for-profit companies? If we answer yes to this, then how do we ensure that such powers are not misused in order to maximise profits? Imprisonment is imposed as a punishment, not for punishment. How can prisons institutionalise rehabilitation as a central, albeit secondary aim? How can the necessary elements of prison operation—rehabilitation, order and security—be re-balanced? Given that the ‘war on drugs’ and the attempts to limit mobile phones in prisons have been largely unsuccessful because of an overemphasis on dealing with supply by means of repression, how can prisons take seriously the need to deal with reducing demand? The attempt to introduce a form of limited accountability into prisons failed. How can effective accountability be achieved for prisons? How far does the second Johnson government’s attempt to deal with this matter go (MOJ August 2020; 07/12/2021)?

Probation Given the abject failure of part-privatisation, how can the probation service be assisted to restore its functioning and reputation with the public and courts? How can the failed experiment with the privatisation of probation be prevented from happening again? How can the improved resources requested by the Chief Inspector of Probation be made available in order for probation to both improve its current operation and extend the provision of viable non-custodial options to courts? What is the solution to the recall to prison disaster associated with licensed short sentence prisoners? How can the effectiveness of through-the-gate service be developed? The emphasis in community sentence development has been inefficient and ineffective and placed far too much emphasis on punishment in general and incapacitation in particular, whereas attempts to revive

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rehabilitation (relating to treatment conditions) have been limited in scope and effectiveness. How can the balance of punishment and rehabilitation be restored to probation supervision and licence monitoring? How can probation be made more accountable?

Conclusion Effective assuagement of the penal crisis requires two related but different and difficult agendas to be followed. Firstly, a social and political agenda concerned with significant social change to reduce the harms associated with the dominant inequality regime and its neo-liberal ideology. Secondly, a penal agenda based on the setting up of both a parliamentary commission of inquiry and a standing advisory body on the penal system to put the punitive consensus that currently dominates penal affairs under a democratic microscope both in a root and branch one-off form and in an on-going ‘explain or change’ form. Such inquiries will have to provide judgements on many social/political/ethical issues assisted by evidence-based empirical research. Chapter 10 concludes the book by summarising the main thesis and limitations of the work and identifying some of the key unresolved empirical penal questions.

References Barlow, P (19/06/2013) The lost world of royal commissions @ https://www. instituteforgovernment.org.uk/blog/lost-­world-­royal-­commissions. Bawden, T (01/11/2021) ‘COP26: Stop treating nature ‘like a toilet’, UN boss Antonio Guterres warns world leaders in summit speech,’ iNews. BBC News (21/04/2021a) ‘Boris Johnson told Sir James Dyson by text he would ‘fix’ tax issues.’ BBC News (21/10/2021b) ‘Documents leak reveals nations lobbying to change climate report.’ Blom-Cooper, L and McConville, S (November 2014) The Case for a Royal Commission on the Penal System, Hook: Waterside Press.

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Caird, J S (30/11/2016) Public Inquiries: non-statutory commissions of inquiry, House of Commons Briefing Paper 02599 @ https://commonslibrary.parliament.uk/research-­briefings/sn02599/. Cohen, N (18/12/2021) ‘The Tories call it electoral reform. It looks more like a bid to rig the system,’ The Guardian. Conservative Party General Election Manifesto (November 2019) @ https:// feweek.co.uk/wp-­content/uploads/2019/11/Conservative2019Manifesto.pdf. Cross, M (19/12/2019) ‘Queen’s speech: Royal Commission on criminal justice,’ Law Gazette. Gay, O (24/07/2012) Parliamentary Commissions of Inquiry @ https://commonslibrary.parliament.uk/research-­briefings/sn06392/. Gilroy, P (2002) There Ain’t No Black in the Union Jack: The Cultural Politics of Race and Nation, London: Routledge. Greenpeace International (07/11/2021) Saudi Arabian negotiators move to cripple COP26- Greenpeace response’ @ https://www.greenpeace.org/international/press-­release/50547/cop26-­saudi-­arabia-­negotiators-­cripple/. House of Commons Justice Select Committee (24/03/2020) The work of the Lord Chancellor @ https://committees.parliament.uk/oralevidence/248/pdf/. Labour Party (04/01/2022) Keir Starmer speech @ https://www.youtube.com/ watch?v=qOeFPH8GoSs. Lammy Review Report (08/09/2017) @ https://assets.publishing.service.gov. uk/government/uploads/system/uploads/attachment_data/file/643001/ lammy-­review-­final-­report.pdf. McNamee, R (2019) Zucked, London: Harper-Collins. Mesothelioma Help website. Asbestos timeline accessed 19/01/2022 @ https:// www.mesotheliomahelp.org/asbestos/history/. MOJ (August 2020) Strengthening Independent Scrutiny Bodies Through Legislation @ https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/910010/strengthening-­s crutiny-­ bodies-­through-­legislation-­consultation-­document.pdf. MOJ (07/12/2021) Prisons Strategy White Paper @ https://www.gov.uk/government/publications/prisons-­strategy-­white-­paper Paxton, T (1972) Lyrics @ https://genius.com/Tom-­paxton-­peace-­will-­ come-­lyrics. Piketty, T (2020) Capital and Ideology, Cambridge: Belknap Press for Harvard University. Procter, R N (2011) Golden Holocaust: Origins of the Cigarette Catastrophe and the Case for Abolition, Berkeley: University of California Press.

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Queen Mary University of London Press Release (18/11/2014) ‘Professor Sean McConville calls for a royal commission on the penal system’ @ https://www. qmul.ac.uk/law/news/2014/items/professor-­sean-­mcconville-­calls-­for-­royal-­ commission-­on-­the-­penal-­system.html. Reiner, R (2007) Law and Order, Cambridge: Polity Press. Reiner, R (2021) Social Democratic Criminology, London: Routledge. Shepheard, M (22/11/2019) ‘Royal commissions are outdated and will not deliver real change’ Institute of Government @ https://www.instituteforgovernment.org.uk/blog/labours-­manifesto-­fails-­recognise-­royal-­commissions-­ are-­past-­their-­sell-­date. Skinns, D (2016) Coalition Government Penal Policy 2010–2015: Austerity, Outsourcing and Punishment, London: Palgrave Macmillan. Steger, M R and Roy, R K (2021) Neoliberalism: A very Short Introduction, Oxford: Oxford University Press. Theakston, K (2014) The 1964–1970 Wilson Government and the British Constitution, Politics Review 9(3) in the University of Leeds Wilson repository @ https://eprints.whiterose.ac.uk/90135/3/1964_Wilson_government_ and_the_constitution.pdf. Taubes, G (2016) The Case Against Sugar, London: Portobello Books. Walker, P, Stewart, H and Siddique, H (11/05/2021) ‘More than 2m voters may lack photo ID required under new UK Bill’, The Guardian.

10 Conclusion

Introduction In this final chapter, I summarise the main thesis of the book, consider some of the limitations of the work and identify some key empirical research questions taking account of both the need to satisfy curiosity and produce sound evidence to assist consideration of the social/political ethical issues set out in Chap. 9.

The Penal Landscape 2010–2021 The main thesis can be briefly stated that successive Conservative governments, between 2015 and 2021, revived the Coalition-inspired A-O-P penal policy formula which exacerbated the penal crisis through under-­ resourcing both ‘plant’ and people, institutionalised material scarcity and its cultural concomitants by outsourcing and pushed further towards a focus on punishment rooted in incapacitation. But what motivated successive Conservative governments to make the crisis worse on their watch? The answer provided in part relates to the political turbulence of the period when Brexit directed attention away from penal matters. But it relates mainly to the way in which the A-O-P © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 C. D. Skinns, Conservative Government Penal Policy 2015–2021, https://doi.org/10.1007/978-3-031-00797-2_10

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formula was heavily mandated by a neo-liberal ideology that used the financial crash to turbo-charge the further institutionalisation of neoliberal ideas, making austerity the leitmotif of all policy, extending the reach of the market via outsourcing and supporting and promoting an inequality regime that was inherently criminogenic, thus promoting crime as public enemy number one and leading to increasingly punitive public and official sentiments conditioned by ambiguously rising crime levels, mounting popular fury and fear of the loss of status-defining material assets and, amongst policy-­makers, rising fear of the void.

Limitations of the Book This book has a number of limitations. The content is limited, more or less exclusively, to the penal system for adults and young adults in England and Wales. The pandemic has meant that the method of investigation adopted, using internet-available document-based sources, has been significantly delayed. Furthermore, notwithstanding that documentary sources can be understood as primary sources, nevertheless this work does not display the immediacy and penetration into the social world of policy-making or implementation, which good empirical studies of the ‘coal face’ of penal policy-making can achieve. Nevertheless, the work does achieve what it set out to do—to engage in an internal and external critique of successive Conservative government penal policies between 2015 and 2021, whilst identifying key trends, and offering an explanation of these trends and potential solutions to the problems identified.

Key Research Questions The listing of the topics in this section mainly reflects the concern to identify issues pertinent to and likely to produce evidence helpful to the social/political/ethical considerations raised in Chap. 9, but also the expression of simple curiosity.

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1. Direct, ‘fly-on-the-wall’ studies of the process of the penal policy-­ making are limited. An account, like that of David Faulkner (2014) for a previous period, is needed for the 2015–2021 period. How was penal policy shaped inside the Ministry of Justice during the successive Conservative governments; what was the relative influence of various factors in shaping this policy? What role did previous decision-­making and ideas have? What role did the Ministers and the Prison and Probations Ministers play? How did the work of the MOJ connect to Cabinet decision-making and prime ministerial influence? What was the role of the Conservative Parliamentary Party and the Party in the country? What was the in-practice penal philosophy? Were there variations on this and how did they relate to positioning within the Conservative government, parliamentary party and party in the country? How important was pressure from other right of centre groups? How, if at all, did public opinion shape policy decisions and how? What role was given to empirical evidence when formulating policy? 2. How have the legal aid reforms between 2015 and 2021 impacted on the financial position of law firms and the service they can provide in 2022/2023? In what ways have the legal aid reforms impacted on defendants, witnesses and victims? To what extent have the limited reforms introduced ameliorated the impact of legal aid restrictions on the viability of and diversity within law firms? 3. By 2022/2023 what impact have court financial impositions had on convicted offenders? What impact has the privatised system of debt recovery of court-imposed financial impositions, which became live in 2020/2021 in England and Wales, had? In particular has the regulatory framework put in place prevented inappropriate conduct on the part of the approved enforcement agencies? 4. What impact has the court transformation programme had on the provision of criminal courts for defendants, witnesses and victims and the openness of justice? Are sufficient safeguards in place to make remote court operations work for all? 5. Is the court transformation programme on course to achieve the expected cost savings?

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6. Does empirical evidence support the claim that community orders have lower reoffending rates than short prison sentences? 7. Is the government policy to expand prison places by 20,000 by the ‘mid-2020s’ justified by crime and justice trends? Is it practically possible? What evidence is there for significant financial planning to match these claims? 8. What evidence is there that whole private prisons operate more effectively in terms of internal order maintenance (control), escape prevention (security), procedural fairness (involving prisoners in decisions about them, gaining their consent and pursuing their rehabilitation) and cost (per prisoner per year)? 9. How far have prison services (particularly catering and healthcare) been privatised and with what consequences? 10. Has the MOJ been successful at recruiting and retaining an expanded and more diverse frontline prison officer workforce, operationalising the key worker scheme in all prison establishments, ensuring that good quality purposeful activity is available for all inmates, fulfilling the licit communications needs of all prisoners and offering effective assistance with their resettlement? 11. How effective has the urgent notification protocol process been in producing material and meaningful changes in prisons and strengthening the influence of the scrutiny body, HMIP? Were the reformed scrutiny arrangements for prisons contained in the MOJ proposals (MOJ August 2020 and 07/12/2021) put in place and were they effective in boosting effective prison accountability? To what extent were any gains in prison accountability countermanded by changes with regard to judicial review? 12. By the end of 2022/2023 had the ‘dynamic framework’ (Webster 21/05/2021) for probation enabled it to move some way to restore effectiveness, rehabilitate its image with courts and make it a genuinely rehabilitative service for all offenders? 13. What are the relative impacts of community orders that place an emphasis more or less exclusively on incapacitation and community orders that place a more or less exclusive emphasis on rehabilitation, on reoffending? 14. When, if at all, was pandemic recovery accomplished by the courts, prisons and probation? In what ways have emergency procedures

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(more remote court working, greater prison cell confinement and more remote probation contact) become part of recovery and post-­ recovery normal practice, with what effects? 15. Has the management of the pandemic in the penal system been an equal opportunity phenomenon? 16. What direction, post-2021, did political forms actually take and what were the consequences for penal policy and the penal crisis?

 onclusion: Do We Really Want to Be ‘the C Saudi Arabia of penal policy’? After 25 years as an academic criminologist, 10 years of working in the crime prevention field and 10 years of working for the Independent Monitoring Board at HMP Lancaster Farms, I find myself in some sympathy with the view recently expressed by Frances Crook, the then retiring Chief Executive of the Howard League for Penal Reform when she wrote about prisons that they were ‘the last unreformed public service, stuck in the same cycle of misery and futility as when I arrived’ (Crook 10/08/2021). However, I would extend this sense of a chronically broken system not only to prisons, but courts and probation too. Neither Crook’s nor my account should be taken as a statement of the futility of reform or the inevitability of a harsh penal system, but a realistic assessment of the current situation and a spur to action to improve provision. Unless speedy and effective action is taken, in ten more years, we will still be wondering why the penal system is in chronic crisis, dogged by austerity, outsourcing and punishment, and wringing our hands about rising crime rates, growing numbers of unrepresented defendants, court backlogs and case delays, high remand in custody rates, the continuing failure of probation to convince courts that they can provide effective penal measures, decreasing use being made by courts of community sentences, rising imprisonment rates, lengthening average custodial sentence lengths and expanding prison populations, appalling living and working conditions in prisons and high levels of unrest, self-harm and assault in prisons, the high reoffending rates of prisoners and probation increasingly reduced to managing privatised cost-reduced detention in offenders

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homes based solely on surveillance and incapacitation. In short, we will be wondering why we have come to acquiesce to policies that constantly increase levels of punishment and decrease the humane treatment of offenders. We will be wondering how England and Wales became, in Boris Johnson’s statement about the directions then signalled by his ‘wonderful Home Secretary’, ‘the Saudi Arabia of penal policy’ (Dyer 24/09/2021). Does anyone (even Johnson) really want this?

References Crook, F (10/08/2021) The reform of prisons has been my life’s work, but they are still utterly broken,’ The Guardian. Dyer, H (14/09/2021) ‘Inside a £500-a-head Tory donor lunch with Boris Johnson, where the wine was ‘rubbish’ and he joked about emulating Saudi Arabia’s justice system’, The Insider, video @ https://www.businessinsider. com/inside-­conservative-­donor-­lunch-­boris-­johnson-­unfiltered-­thoughts-­20 21-­9?r=US&IR=T Faulkner, D (2014) Servant of the Crown: a civil servant’s story of criminal justice and public service reform, Hook: Waterside Press. MOJ (August 2020) Strengthening Independent Scrutiny Bodies Through Legislation @ https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/910010/strengthening-­s crutiny-­ bodies-­through-­legislation-­consultation-­document.pdf MOJ (07/12/2021) Prisons Strategy White Paper @ https://www.gov.uk/government/publications/prisons-strategy-white-paper Webster, R (21/05/2021) New Providers of Probation Services Announced @ https://www.russellwebster.com/new-­p roviders-­o f-­r ehabilitative­services-­announced/

Index

A

Absence of informal and formal control (as a factor influencing crime levels), see Key factors influencing crime levels Accountability, 1, 15, 28–31, 79, 89, 95, 96, 153–155, 157, 158, 160, 166, 179, 211, 250, 251, 291, 354, 359, 374, 452, 460 Accredited course requirement (of a community or suspended sentence order), 210 Agenda setting, 262 Anomie, 403 Approved premises (AP), 237, 362–364, 366

Austerity, 1, 2, 7, 8, 15, 16, 23, 31, 38, 50, 55, 88, 89, 96, 114, 119, 128, 129, 131, 147, 175, 176, 179, 192, 214, 221, 231, 252, 307, 314, 328, 329, 335, 358, 360, 368, 372, 373, 391, 410–412, 414, 415, 424, 426–428, 430–432, 435, 439, 447, 449, 458, 461 Authoritarianism, 413, 430, 438 B

Baker, C., 302, 303 Basic reproduction number (RO) (of the SARS-COV 2 virus), 3, 298, 442 Behavioural programmes, 347, 357

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 C. D. Skinns, Conservative Government Penal Policy 2015–2021, https://doi.org/10.1007/978-3-031-00797-2

463

464 Index

Bias and discrimination in the penal system on the basis of class, 260 gender, 291 race, 291 Black Lives Matter, 371, 409 Blom-Cooper, L., 443–445, 447–450 Boaty McBoat Face problem, 445 Bottoms, A. E., 9, 19, 24–26, 95 C

Cavadino, P., 14, 28, 400 Censitarianism, 406 Cloud Video Platform (CVP), 318, 323, 326, 415 Coalition government 2010-15, 15, 38, 50, 56, 136 ‘Cocooning’ (in prisons), 306 Community order (COs), 73–75, 77, 209–213, 222, 224, 225, 232, 234, 237–239, 241, 248, 252, 284, 290, 332, 333, 360, 367, 460 Community Rehabilitation Company (CRC), 210, 212–214, 216, 217, 219, 227, 229, 236, 249, 251, 276, 363, 368 Community service order (CSO), 234 Compartmentalisation (in prisons), 341, 342 Compassionate release scheme (for prisoners), 343, 345 Competitive egoistic individualism, 398

Conservative governments 2015-16 Cameron government, 76, 137 2016-17 First, May government, 138 2017-2019 Second, May government, 75 2019 First Johnson government, 108, 352 2019-2021 Second Johnson government, 59, 415 Conservative Party general election manifestos 2015, 7, 10 2017, 7, 10 2019, 7, 10 Corston Report (2007), 280, 281, 283 Court estate transformation programme, 52, 88, 96 Courts, 2, 10, 37–96, 166, 210, 271, 297, 394, 448, 459 COVID-19, 3, 131, 150, 298–304, 306, 309, 312, 314, 316, 318, 320, 324, 334–338, 340, 341, 345, 349, 351, 354, 364, 373, 414 COVID-19 regulations, 20, 152, 269, 308, 309, 322, 369, 416, 422 COVID-19-secure premises (in courts and probation), 321 COVID-19 strategies for pandemic management in prisons ‘closure,’ 338, 345 ‘opening,’ 338

 Index 

COVID-19 strategies for pandemic management of society ‘mitigation’ and herd immunity,’ 306 ‘suppression,’ 306, 340 Crenshaw, K., 262 Crime explosion, 401, 403 Crime Survey for England and Wales (CSEW), 90, 179, 250, 402, 416, 419–422 Crime trends in the post Second World War period in England and Wales ambiguously rising crime, 2010s and early 2020s, 438 ‘crime explosion’ 1980’s-1990s, 401 rising crime, 1950s-70s, 401 Criminal justice system (CJS), 7, 12, 13, 19, 20, 23, 26, 43, 79, 90–92, 267, 272, 274, 275, 281, 285, 288, 290, 316, 329, 369, 371, 372, 374, 428, 435 Crisis of imprisonment, 27, 95, 189 Crisis of visibility, 28 Culture wars, 280, 287, 371, 372, 409 Curfew requirement (of a community or suspended sentence order), 75 D

Deaths and death rates ‘involving’ or ‘related to’ COVID-19 of England and Wales, general population, 336

465

prisoners, 336 probation users, 336 Devolved administrations, 303 Dignan, J., 14, 28 Discrimination, 2, 27, 31, 37, 39, 95, 161, 180, 250, 252, 259–291, 442 Domestic visits (prisons), 342, 346 Door-step supervision (probation), 362, 374 Durkheimian corrective, 404 E

Egoism and egoistic individualism (as an influence on crime trends), 2, 152, 403, 415, 422, 437 Electronic monitoring of offenders, 237, 238 Email a prisoner (to enable family and prisoner contact during the pandemic), 344 End of custody temporary release scheme (from prisons), 342 Enrichment and distraction packs in prisons, 344 Equality of treatment, 259 Exceptional or emergency delivery model during COVID-19 pandemic courts, 314 prisons, 314 probation, 315 External critique, 1, 5, 18, 37, 81–96, 107, 167–176, 209, 244–248, 333–334, 458

466 Index F

Fear of the void, 264, 406, 408, 422–424, 431, 458 Ferguson, N. M., 305–307, 315 Fixation with or fetishisation of the prison, 1, 31, 89, 109, 179, 250, 374, 406, 451 Forms of inequality class, 260, 261 gender, 260 ‘party’ or power, 260, 261 race, 259, 260, 263, 270 status, 260, 261 Foucault, M., 393 Furlough scheme, 311, 320, 342, 348, 412, 415, 422 G

Geronimus, A. T., 262 Global Positioning System tags (as part of CO or SSOs requirements), 10, 17, 74–76, 232, 238–241, 251, 333 See also Curfew requirement (of a community or suspended sentence order) Gove, M., 6, 9, 12, 13, 15, 79, 131, 135–137, 139, 242 H

Herd immunity, 305, 306, 313, 315 HM Courts and Tribunals Service (HMCTS), 44–50, 52–54, 56, 58, 89, 90, 95, 314, 321–323, 329, 330, 334

HM Courts Service (HMCS), 44–49, 95 HM Prison and Probation Service (HMPPS), 41, 109, 126, 127, 129, 130, 165, 176, 217, 220, 248, 273, 274, 279, 280, 344, 346, 355, 361, 363, 364 I

Identitarian, 8, 394, 405, 409, 414, 430 Incapacitation, see Punishment In-cell telephony, 149, 150, 290, 344, 358 Income (as a form of inequality), 261, 265–267, 273 Inequality regimes neo-liberal or neo-proprietarian, 2, 392, 397–399, 401, 407–409, 423–431, 436–439 proprietarian, 264, 394 social democratic, 395, 397, 399 ternary, 393 Infection- or vaccine induced immunity, 298 Infection rates (COVID-19), 299, 335 Institutional racism/sexism, 371 Internal critique, 1, 37–88, 96, 107, 166, 209, 243 Intersectionality, 262, 280, 286 J

Justice, 1, 8, 38, 214, 259, 394, 439, 459

 Index 

467

K

M

Key factors explaining crime levels absence of informal and formal control, 401 labelling, 401 means to crime, 401 motivations to crime, 401 opportunities for crime, 401 Key worker scheme (in prisons), 114, 119, 128, 129, 131, 175, 179, 229, 347, 355, 460 Kirk-Wade, E., 302, 303

Mair, G., 14, 28 Material crisis, 88–89, 175–190, 248–250, 368, 429 See also Penal crisis McConville, S., 443, 449, 450 Measures of income and wealth inequality Gini coefficient, 265, 266 Palma Index, 265 P80/P20 score and P10/P90 score, 265 Moral crisis, 30, 89–96, 179–190, 250–251 See also Penal crisis Motivations to offend (as a factor explaining crime), 271, 422 See also Key factors explaining crime levels Mutant/hybrid political forms, 408 Mutation of SARS-CoV-2, 298

L

Lammy Review Report (2017), 272, 274, 279, 450 ‘Law and order’/punitive consensus, 8, 332, 399, 400, 403, 428, 429 Legal aid, 23, 29, 38–49, 80, 89, 90, 95, 96, 263, 319, 320, 326, 328, 329, 428, 450, 459 Legitimacy, 19, 24–29, 179, 180, 189, 190, 252, 259, 271, 280, 291, 334, 345, 360, 368, 372, 374, 442 Liaison and diversion services (L&D), 283, 284, 288, 290 Licence recalls (to prison), 125, 251 Lockdown in courts, 316, 340 prisons, 190, 191, 340–342, 346, 356 probation, 363 Lukes, S., 261

N

National Offender Management Service (NOMS), 56, 118, 120–125, 129, 176, 234, 248, 279 National Probation Service (NPS), 210–213, 216–220, 226, 229, 236, 249, 250, 279, 362–365, 368 Neo-liberal inequality regimes ‘contested’/‘first wave,’ 392, 397 ‘hegemonic’/‘second wave,’ 392, 397, 408 ‘zombie’/‘third wave,’ 392, 408, 429 Neo-liberalism, 392–431, 435

468 Index

New coronavirus/SARS-C0V-2, 2, 3, 5, 16, 20, 30, 53, 54, 80, 141, 150, 152, 220, 229, 231, 249, 263, 291, 297, 298, 305, 312, 313, 320, 335, 361, 415, 423, 426, 431, 442 ‘New for old’ prison policy, 23, 107–110, 116, 352 ‘Nightingale’ courts, 321 Non-statutory public enquiry, 443 Normal and surplus levels of crime, 437, 441 O

Operation Cygnus, 307, 315, 373 Outsourcing, 2, 16, 31, 38, 55–58, 88, 89, 96, 114, 115, 117, 118, 155, 175, 179, 192, 210–221, 231, 243, 251, 252, 354, 361, 391, 392, 400, 407, 408, 411, 412, 415, 424, 427, 429–432, 435, 439, 447, 451, 457, 458, 461 See also Marketisation, outsourcing and privatisation Over-representation, 270, 277, 280, 291 P

Pandemic, 2, 5, 16, 30, 37, 42, 53, 54, 63, 75, 80, 107, 113, 126, 130, 141, 150, 152, 180, 191, 209, 220, 225,

243, 259, 264, 291, 297–374, 392, 409, 412, 418, 420–424, 426, 427, 429–431, 438, 440, 442, 444, 449, 450, 458, 460, 461 Pandora’s box, 6, 406 Parliamentary commission of inquiry (PCI), 436, 448–453 ‘Party’ or power as a form of social inequality, 261 Payment by results (PBR), 155, 218, 220, 412 Penal crisis material crisis, 19, 368 moral crisis, 19, 179, 250, 429 Penal philosophy, 1, 5–17, 31, 61, 70, 73, 96, 107, 192, 209, 443, 459 Penal system, 1–3, 7, 9, 11, 13, 14, 16, 18, 19, 21, 23, 24, 26, 28, 30, 31, 37, 78, 107, 114, 117, 209, 252, 259–291, 297–374, 400, 403, 407, 411, 414, 428, 432, 435, 436, 442, 443, 446, 448–453, 458, 461 Penal welfare sanction, 395–397 Piketty, T., 2, 8, 264, 266–268, 392–396, 405, 406, 436, 437, 439, 440 Policy packages economic ‘D-L-P’ (‘deregulation of the economy- liberalisation of trade and ­industry-­ privatisation of state-owned enterprises’), 399, 413

 Index 

penal A-O-P (austerity-outsourcing-­ punishment) policy package, 1, 2, 55, 251, 391, 392, 408–431 F-O-P (frugality-outsourcing-­ punishment) policy package, 392, 397–408 Political economy, 2, 18, 398, 413 Populism (as a state form), 414, 425–431, 435, 438, 439 See also State forms Possible future inequality regimes, 423 neo-proprietarian and neo-liberal re-birth, 424–425 neo-proprietarian inequality linked to neo-liberal populism, 425–429 populist authoritarian nationalism, 429–431 Prejudice, 261, 371 Prisoner voicemail, 344 Prison estate transformation policy/programme, 107–108, 111–113, 166, 352, 415 Prison population, 14, 28, 67–70, 116, 127, 129, 160, 165, 166, 176, 188, 241, 270, 278, 279, 283, 286, 289, 331, 336, 339–340, 343, 355, 461 Prison scrutiny arrangements, 358 See also Accountability Probation, 2, 12, 120–125, 209–252, 273, 297, 395, 447, 460

469

Procedural justice, 1, 25, 26, 31, 93–95, 179, 180, 182, 447 Prosecutorial processes, 3 Protected characteristic, 259, 260, 273, 286 Protective isolation units (in prisons during pandemic), 341 Public inquiry forms ad hoc inquiries, 443 committee of privy councillors, 443 parliamentary commission of inquiry, 449 royal commissions, 443 standing advisory bodies, 449 Punishment incapacitation, 26, 58, 232, 242, 424, 452 Punitive consensus, 29, 447, 449 Purple visits, 290, 344, 347, 358 Purposeful activity, 17, 114, 134–145, 153, 165, 166, 176, 181, 341, 344, 345, 351, 352, 356, 357, 363, 373, 460 R

Race and racism, 259, 260, 263, 270, 272, 274, 275, 277–280, 287, 291, 370–372, 403, 406, 409, 431, 440, 442, 450 Recovery plans (during the pandemic for) courts, 321–333 prisons, 335, 361 probation, 361, 363–366, 368

470 Index

Regalian functions of the state, 395, 399 Reiner, R., 2, 9, 19, 20, 152, 269, 271, 392, 396–408, 429, 436, 438–440 Remote working (in courts), 54, 80, 316–319, 321, 334 Resettlement/Through-the-gate services (in prisons), 1, 30, 134, 145, 181, 189, 210, 217, 226–230, 248, 251, 342, 345, 348, 349, 351, 357, 358, 362, 365, 366, 373, 374, 452, 460 Reverse cohorting (in prisons), 341 Roy, R. K., 115, 392, 397–399, 407–411, 424, 436 Royal commission, 29, 30, 443, 444, 446–448 S

SARS-COV-2/new coronavirus, 2, 3, 5, 16, 20, 30, 53, 54, 80, 141, 150, 152, 220, 229, 231, 249, 263, 291, 297, 298, 305, 308, 312, 313, 320, 335, 361, 415, 423, 426, 430, 431, 442 ‘Second chance’ (for offenders), 12, 13, 119, 134, 175, 428, 429, 447 Self-harm incidents (in custody), 27, 131, 157 Self-inflicted deaths (in custody), 131 Sentencing, 2, 3, 13, 31, 37–96, 166, 190, 210, 212, 225,

232, 233, 243, 272, 281, 282, 284, 285, 289, 321, 326, 331, 332, 342, 354, 369, 451 Skinns, C. D., 1, 21, 28, 38, 39, 50, 56, 74, 108, 109, 115, 154, 232, 234, 307, 328, 391, 412, 448 Sobriety tags, 10, 74–75, 367 Social democracy, 22, 394–397, 438, 439 Social exclusion/marginalisation, 55, 262, 268, 271, 403, 442, 451 Socio-economic disadvantage, 259, 260, 262–271 Standing advisory body, 436, 448–453 State forms, 393, 398 Statutorily defined prison purposes, 154, 155, 158 Steger, M. B., 115, 392, 397–399, 407–411, 424, 436 Suspended sentence order (SSOs), 3, 74–78, 209, 210, 212, 231–233, 238, 239, 241, 248, 332, 360, 367 T

Tankebe, J., 25, 26, 95 There is no turning back (TINA), 396, 437 Through-the-gate/resettlement services, 209–212, 217, 226–231, 248, 251, 342, 360, 362, 365, 366, 374, 428, 452

 Index 

Treatment requirements (of community and suspended sentence orders), 76–78, 243, 332, 333, 367 Tyler, T., 24–26

V

U

W

UK Income and wealth distributions, 268 Unpaid work/community payback requirement (of community and suspended sentence orders), 13, 27, 74, 210, 221, 234, 360, 362, 364, 365, 373 Urgent notification protocol, 151, 160, 161, 166, 190, 358, 359

471

Vaccines and vaccine development in relation to SARS-COV 2, 3, 442 Vulnerabilities, 79, 134, 280, 281, 284–286, 370, 371

Weathering, 262 Weber, M., 260, 261, 391, 401 ‘Woke’ movements, 409 Women-centred approaches in the penal system, 285 Z

Zero sum relation (between victims and the public, and offenders), 17, 449